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Testimony:
Before the Subcommittee on Social Security, Committee on Ways and
Means, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. EDT:
Tuesday, May 6, 2008:
Employment Verification:
Challenges Exist in Implementing a Mandatory Electronic Employment
Verification System:
Statement of Richard M. Stana, Director Homeland Security and Justice
Issues:
GAO-08-729T:
GAO Highlights:
Highlights of GAO-08-729T, a testimony before the Subcommittee on
Social Security, Committee on Ways and Means, House of Representatives.
Why GAO Did This Study:
In 1996, the former U.S. Immigration and Naturalization Service, now
within the Department of Homeland Security (DHS), and the Social
Security Administration (SSA) began operating a voluntary pilot
program, recently named the E-Verify program, to provide participating
employers with a means for electronically verifying employees’ work
eligibility. Legislation has been introduced in Congress to require all
employers to electronically verify the work authorization status of
their employees. In this testimony GAO provides observations on the E-
Verify system’s capacity and costs, options for reducing delays and
improving efficiency in the verification process, ability to detect
fraudulent documents and identity theft, and vulnerability to employer
fraud and misuse. This testimony is based on GAO’s products issued from
August 2005 through June 2007 and updated information obtained from DHS
and SSA in April 2008. We analyzed data on employer use, E-Verify
guidance, and other reports on the employment verification process, as
well as legislative proposals and regulations.
What GAO Found:
A mandatory E-Verify program would necessitate an increased capacity at
both U.S. Citizenship and Immigration Services (USCIS) and SSA to
accommodate the estimated 7.4 million employers in the United States.
According to USCIS, as of April 2008, more than 61,000 employers have
registered for E-Verify, and about half are active users. Although DHS
has not prepared official cost figures, USCIS officials estimated that
a mandatory E-Verify program could cost a total of about $765 million
for fiscal years 2009 through 2012 if only newly hired employees are
queried through the program and about $838 million over the same 4-year
period if both newly hired and current employees are queried. USCIS has
estimated that it would need additional staff for a mandatory E-Verify
program, but was not yet able to provide estimates for its staffing
needs. SSA has estimated that implementation of a mandatory E-Verify
program would cost a total of about $281 million and require hiring 700
new employees for a total of 2,325 additional workyears for fiscal
years 2009 through 2013.
USCIS and SSA are exploring options to reduce delays and improve
efficiency in the E-Verify process. The majority of E-Verify queries
entered by employers—about 92 percent—confirm within seconds that the
employee is work-authorized. About 7 percent of the queries cannot be
immediately confirmed as work authorized by SSA, and about 1 percent
cannot be immediately confirmed as work authorized by USCIS because
employees’ information queried through the system does not match
information in SSA or DHS databases. The majority of SSA erroneous
tentative nonconfirmations occur because employees’ citizenship or
other information, such as name changes, is not up to date in the SSA
database, generally because individuals do not request that SSA make
these updates. USCIS and SSA are planning to implement initiatives to
help address these weaknesses and reduce delays.
E-Verify may help employers detect fraudulent documents thereby
reducing such fraud, but it cannot yet fully address identity fraud
issues, for example when employees present genuine documents that may
be stolen. USCIS has added a photograph screening tool to E-Verify
through which an employer verifies the authenticity of certain
documents, such as an employment authorization document, by matching
the photograph on the document with the photograph in DHS databases.
USCIS is exploring options to expand this tool to include other forms
of documentation, such as passports, with databases that store
photographic information, but these efforts are in the planning stages
and require decisions about data sharing and privacy issues.
E-Verify is vulnerable to acts of employer fraud and misuse, such as
employers limiting employees’ pay during the E-Verify process. USCIS
has established a branch to review employers’ use of E-Verify. In
addition, information suggesting employers’ fraud or misuse can be
useful to U.S. Immigration and Customs Enforcement (ICE) in targeting
worksite enforcement resources. USCIS and ICE are negotiating a
memorandum of understanding to define roles and responsibilities for
sharing information.
What GAO Recommends:
In 2005, we recommended that DHS include an assessment of the
feasibility and costs of addressing program weaknesses, such as
inability to detect identity fraud, in a planned evaluation of the
program. DHS implemented this recommendation. This testimony contains
no new recommendations.
To view the full product, including the scope and methodology, click on
[http://www.gao.gov/cgi-bin/getrpt?GAO-08-729T]. For more information,
contact Richard M. Stana at (202) 512-8777 or stanar@gao.gov
[End of section]
Chairman McNulty, Ranking Member Johnson, and Members of the
Subcommittee:
I appreciate the opportunity to be here today to participate in this
hearing on electronic employment verification. As we and others have
reported in the past, the opportunity for employment is one of the most
powerful magnets attracting unauthorized immigrants to the United
States. To help address this issue, in 1986 Congress passed the
Immigration Reform and Control Act (IRCA), which made it illegal for
individuals and entities to knowingly hire, continue to employ, or
recruit or refer for a fee unauthorized workers.[Footnote 1] The act
established a two-pronged approach for helping to limit the employment
of unauthorized workers: (1) an employment verification process through
which employers verify all newly hired employees' work eligibility and
(2) a sanctions program for fining employers who do not comply with the
act.[Footnote 2]
Following the passage of IRCA, the U.S. Commission on Immigration
Reform and various immigration experts indicated a number of problems
with the implementation of immigration policies and concluded that
deterring illegal immigration requires, among other things, strategies
involving a more reliable employment eligibility verification process
that focuses on disrupting the ability of illegal immigrants to gain
employment. In particular, the commission report and other studies
found that the single most important step that could be taken to reduce
unlawful migration is the development of a more effective system for
verifying work authorization. In the over 20 years since passage of
IRCA, the employment eligibility verification process has remained
largely unchanged. Legislation has been introduced in Congress to
reform immigration laws and strengthen electronic employment
verification. Some of this legislation includes proposals that would
require employers to use a mandatory, functional electronic employment
verification program for verifying the work authorization of all newly
hired employees. Some of these proposals would also require employers
to use an electronic employment verification program to verify the work
authorization status of existing employees. In addition, some proposals
would provide sanctions for employers who do not use electronic
verification to verify the work authorization status of employees
equivalent to sanctions for employers who do not comply with the
employment verification process established by IRCA.
Currently, U.S. Citizenship and Immigration Services (USCIS), a
component within the Department of Homeland Security (DHS), in
conjunction with the Social Security Administration (SSA), operates a
voluntary electronic employment verification program, called E-Verify.
While participation in this program remains voluntary, some states are
moving to require all employers in the state to verify newly hired
employees using E-Verify. For example, as of January 1, 2008, the
"Legal Arizona Workers Act" requires all employers in Arizona to verify
the employment eligibility of newly hired employees through the E-
Verify program. This act also provides civil penalties, including the
possible suspension or permanent revocation of all Arizona business
licenses, for employers who are found to intentionally or knowingly
employ an unauthorized alien. In 2008, Mississippi passed the
"Mississippi Employment Protection Act," under which the state will
phase in mandatory newly hired employee eligibility verification with E-
Verify for all employers between July 1, 2008, and July 1, 2011. Other
states, including Idaho, Minnesota, Rhode Island, and Oklahoma require
employers in certain sectors, such as government employers and
contractors, to verify their employees' work authorization status.
My testimony today is an update of our prior work regarding employment
verification and worksite enforcement. Specifically, I will discuss our
observations on the E-Verify program's capacity and costs, options for
reducing delays and improving efficiency in the verification process,
ability to detect fraudulent documents and identity theft, and
vulnerability to employer fraud and misuse.
In preparing this testimony, we reviewed our past work on employment
verification and worksite enforcement efforts.[Footnote 3] In April
2008, we updated information from our past work. Specifically, we
analyzed updated information provided by U.S. Immigration and Customs
Enforcement (ICE), USCIS, and SSA officials on the E-Verify program and
challenges their agencies may face if an electronic employment
verification program were made mandatory. We examined legislative
proposals, regulations, guidance, and other studies on the employment
verification process. We also analyzed a report on the results of an
independent evaluation of the E-Verify program, then known as the Basic
Pilot program, issued by Westat Corporation, a contractor evaluating
the program, in September 2007.[Footnote 4] We reviewed the scope and
methodology used by Westat in conducting the evaluation and, based on
this review, found that the report findings were sufficiently reliable
to provide a general indication of the types of ways in which employers
have used the program. Furthermore, we received updated data on
employer use of the current electronic employment eligibility
verification system. We reviewed these data for accuracy and
completeness and determined that these data were sufficiently reliable
for the purposes of our review. We conducted these performance audits
and our 2008 update in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
Summary:
A mandatory E-Verify program would necessitate an increased capacity at
both USCIS and SSA to accommodate the estimated 7.4 million employers
in the United States.[Footnote 5]As of April 2008, more than 61,000
employers have registered for E-Verify, about half of whom have been
active users. Under a mandatory E-Verify program, USCIS has estimated
that annual employer queries of newly hired employees would be an
average of 63 million. USCIS has tested the E-Verify computer system
and found that the system could process up to 240 million queries per
year with the purchase of five additional servers. A mandatory E-Verify
program would require additional USCIS and SSA resources to operate the
program, including conducting monitoring and compliance and status
verification activities. Although DHS has not prepared official cost
figures, USCIS officials estimated that a mandatory E-Verify program
could cost a total of about $765 million for fiscal years 2009 through
2012 if only newly hired employees are queried through the program and
about $838 million over the same 4-year period if both newly hired and
current employees are queried. USCIS has estimated that it would need
additional staff for a mandatory E-Verify program, but was not yet able
to provide estimates for its staffing needs. Currently, USCIS has 121 E-
Verify staff nationwide and, according to the agency, would increase
its staffing level based on a formula that considers monitoring and
compliance and status verification staffing needs as the number of
employers using E-Verify increases. SSA has estimated that expansion of
a mandatory E-Verify program would cost a total of about $281 million
for fiscal years 2009 through 2013 and require hiring 700 new employees
for a total of 2,325 additional workyears over the same 5-year period.
USCIS and SSA are exploring options to reduce delays and improve
efficiency in the E-Verify process. According to USCIS, under the
current voluntary program the majority of E-Verify queries entered by
employers--about 92 percent--confirm within seconds that the employee
is authorized to work. About 7 percent of the queries cannot be
immediately confirmed as work authorized by SSA, and about 1 percent
cannot be immediately confirmed as work authorized by USCIS because the
employee information queried through the program does not match
information in SSA or DHS databases.[Footnote 6] With regard to SSA
tentative nonconfirmations, USCIS and SSA officials told us that the
majority of erroneous tentative nonconfirmations occur because
employees' citizenship or other information, such as name changes, is
not up to date in the SSA database, generally because individuals have
not contacted SSA to update their information when changes occured.
USCIS and SSA are planning to implement various initiatives to help
address these weaknesses and reduce delays in the verification process.
For example, in May 2008 USCIS plans to implement an initiative to
modify the electronic verification process so that employees whose
naturalized citizenship status cannot be confirmed by SSA will be also
checked against DHS databases, helping to reduce the number of
naturalized citizens who would need to visit an SSA office to resolve a
tentative nonconfirmation and improving efficiency in the verification
process.
E-Verify may help employers detect fraudulent documents, thereby
reducing such fraud, but it cannot yet fully address identity fraud
issues, for example, when employees present borrowed or stolen genuine
documents. USCIS has taken steps to improve E-Verify's ability to help
reduce fraud. For example, USCIS has added a photograph screening tool
to E-Verify through which an employer verifies the authenticity of
certain DHS-issued identity documents, such as an employment
authorization document, by matching the photograph on the card or
document with the photograph stored in DHS databases. USCIS is
exploring options for expanding this tool to include other forms of
documentation with related databases that store photographic
information, such as passports issued by the Department of State and
driver's licenses issued by states. These efforts are in the planning
stages and require policy decisions regarding data-sharing processes
and consideration of privacy issues.
E-Verify is also vulnerable to acts of employer fraud and misuse, such
as employers limiting work assignments or pay while employees undergo
the verification process, that can adversely affect employees queried
through the E-Verify program. USCIS has taken actions to help address
employer fraud and misuse by, for example, establishing a Monitoring
and Compliance branch to review employers' use of the E-Verify program.
USCIS is working to staff this office and implement monitoring and
compliance activities. However, these implementation efforts are in the
early stages, and it is too early to tell whether these efforts will
fully ensure that all employers are properly using E-Verify and
following requirements under a mandatory program. In addition,
information suggesting employer fraud or misuse of the system could be
useful to other DHS components in targeting worksite enforcement
resources and promoting employer compliance with employment laws. Under
the current voluntary program, case referrals and requests for
information between ICE and USCIS have been infrequent and informal.
ICE and USCIS are negotiating a memorandum of understanding (MOU) to
define roles, responsibilities, and mechanisms for sharing E-Verify
data, and USCIS is developing a system for tracking case referrals made
to ICE.
Background:
In 1986, IRCA established the employment verification process based on
employers' review of documents presented by employees to prove identity
and work eligibility. On the Form I-9, employees must attest that they
are U.S. citizens, lawfully admitted permanent residents, or aliens
authorized to work in the United States. Employers must then certify
that they have reviewed the documents presented by their employees to
establish identity and work eligibility and that the documents appear
genuine and relate to the individual presenting them. In making their
certifications, employers are expected to judge whether the documents
presented are obviously counterfeit or fraudulent. Employers are
required to retain the Form I-9 and provide it, upon request, to
officers of the Departments of Homeland Security and Labor and the
Department of Justice's Office of Special Counsel for Immigration
Related Unfair Employment Practices for inspection.[Footnote 7]
Employers generally are deemed in compliance with IRCA if they have
followed the Form I-9 process, including when an unauthorized alien
presents fraudulent documents that appear genuine. Following the
passage of IRCA in 1986, employees could present 29 different documents
to establish their identity and/or work eligibility. In a 1997 interim
rule, the former U.S. Immigration and Naturalization Service (INS)
reduced the number of acceptable work eligibility documents from 29 to
27.[Footnote 8]
The Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA)[Footnote 9] of 1996 required the former INS and SSA to operate
three voluntary pilot programs to test electronic means for employers
to verify an employee's eligibility to work, one of which was the Basic
Pilot Program.[Footnote 10] The Basic Pilot Program was designed to
test whether pilot verification procedures could improve the existing
employment verification process by reducing (1) false claims of U.S.
citizenship and document fraud, (2) discrimination against employees,
(3) violations of civil liberties and privacy, and (4) the burden on
employers to verify employees' work eligibility.
In 2007, USCIS renamed the Basic Pilot Program the Employment
Eligibility Verification program and later in the year changed the name
to E-Verify. E-Verify provides participating employers with an
electronic method to verify their employees' work eligibility.
Regardless of whether employers participate voluntarily in E-Verify,
they are still required to complete Forms I-9 for all newly hired
employees in accordance with IRCA. After completing the forms, those
employers participating in the program query E-Verify's automated
system by entering employee information provided on the forms, such as
name and social security number, into the E-Verify Web site within 3
days of the employee's start date. The program then electronically
matches that information against information in SSA's Numident database
and, if necessary, DHS databases to determine whether the employee is
eligible to work.[Footnote 11] E-Verify electronically notifies
employers whether their employees' work authorization was confirmed.
Those queries that the DHS automated check cannot confirm are referred
to USCIS staff, called immigration status verifiers, who check employee
information against information in other DHS databases. The E-Verify
program process is shown in figure 1.
Figure 1: E-Verify Program Verification Process:
This figure is a flowchart showing the E-Verify program verification
process.
[See PDF for image]
Source: GAO analysis based on USCIS information.
[End of figure]
In cases when E-Verify cannot confirm an employee's work authorization
status either through the automatic check or the check by an
immigration status verifier, the system issues the employer a tentative
nonconfirmation of the employee's work authorization status. In this
case, the employers must notify the affected employees of the finding,
and the employees have the right to contest their tentative
nonconfirmations by contacting SSA or USCIS to resolve any inaccuracies
in their records within 8 federal working days. During this time,
employers may not take any adverse actions against those employees,
such as limiting their work assignments or pay. After 8 days, employers
are required to either immediately terminate the employment, or notify
DHS of the continued employment, of workers who do not successfully
contest the tentative nonconfirmation and those whom the program finds
are not work-authorized.[Footnote 12]
The E-Verify program uses the same system as USCIS's Systematic Alien
Verification for Entitlements Program, which provides a variety of
verification services for federal, state, and local government
agencies. USCIS estimates that more than 150,000 federal, state, and
local agency users verify immigration status through the Systematic
Alien Verification for Entitlements Program. SSA also operates the Web-
based Social Security Number Verification Service, which employers can
use to assure that employees' names and social security numbers match
SSA's records. This service, designed to ensure accurate employer wage
reporting, is offered free of charge. Employer use is voluntary, and
approximately 12,000 employers requested more than 25.7 million
verifications in 2005, according to the SSA Office of the Inspector
General.[Footnote 13]
USCIS contracted for an independent evaluation of the E-Verify program.
Westat, the organization that conducted the evaluation, issued a report
on its evaluation findings in September 2007. According to this report,
the Westat evaluation examined how well the federal government
implemented modifications made to the original Basic Pilot Program and
the extent to which the program met its goals to (1) reduce employment
of unauthorized workers, (2) reduce discrimination, (3) protect
employee civil liberties and privacy, and (4) prevent undue burden on
employers. Based on its findings, Westat made recommendations to USCIS
and SSA intended to help improve the program.
Mandatory E-Verify Will Require an Increase in Capacity at USCIS and
SSA:
Mandatory electronic employment verification would substantially
increase the number of employers using the E-Verify program, which
would place greater demands on USCIS and SSA resources. As of April
2008, more than 61,000 employers have registered to use the program,
about 28,000 of whom were active users, according to USCIS.[Footnote
14] USCIS has estimated that approximately 4,000 employers are
registering per month. In fiscal year 2007, USCIS processed about 3.2
million employer queries and for the first 6 months of fiscal year
2008, processed about 2.6 million queries. If participation in the E-
Verify program were made mandatory, the program would have to
accommodate all of the estimated 7.4 million employers in the United
States. USCIS has projected that employers would submit an average of
63 million queries on newly hired employees per year under a mandatory
E-Verify program.[Footnote 15] USCIS officials stated that they have
tested the capacity of the E-Verify computer system to handle about
four times the projected load of queries that would occur if E-Verify
participation were made mandatory for all employers. These tests showed
that the E-Verify system can process up to 240 million queries per
year, with the purchase of 5 additional servers, exceeding USCIS's
projection of an average of 63 million queries per year under a
mandatory E-Verify program.[Footnote 16]
USCIS has developed cost and staffing estimates for operating a
mandatory E-Verify program. Although DHS has not prepared official cost
figures, USCIS officials estimated that a mandatory E-Verify program
could cost a total of about $765 million for fiscal years 2009 through
2012 if only newly hired employees are queried through the program and
about $838 million over the same 4-year period if both newly hired and
current employees are queried.[Footnote 17] Mandatory implementation of
E-Verify would also require additional USCIS staff to administer the
program, but USCIS was not yet able to provide estimates for its
staffing needs. Under the voluntary program, USCIS operated E-Verify
with 12 headquarters staff members in 2005, which has now grown to
about 121 full-time employees nationwide, with 21 staff members for
monitoring and compliance and 11 for status verification operations.
According to USCIS, the agency would increase its staffing level based
on a formula that considers monitoring and compliance and status
verification staffing needs as the number of employers using E-Verify
increases.
A mandatory E-Verify program would also require an increase in SSA's
resource and staffing requirements. SSA has estimated that
implementation of a mandatory E-Verify program would cost a total of
about $281 million for fiscal years 2009 through 2013 and require
hiring 700 new employees for a total of 2,325 additional workyears over
the same 5-year period.[Footnote 18] According to SSA, these estimates
represent costs if the current E-Verify system is expanded, and any
changes to the current process could have significant additional costs
to the agency. The estimates include costs for start-up, such as system
upgrades, training for current SSA employees, and training, space, and
workstations for new employees, and ongoing activities, such as field
office visits and system maintenance. SSA's estimates assume that under
a mandatory expansion of the current E-Verify program, for every 100 E-
Verify queries, about 1.4 individuals will contact SSA regarding a
tentative nonconfirmation.[Footnote 19]. According to SSA officials,
the cost of mandatory E-Verify would be driven by the increased
workload of its field office staff due to resolving SSA tentative
nonconfirmations, as well as some of the computer systems improvements
and upgrades that SSA would need to implement to address the capacity
of a federal mandatory program. Moreover, the final number of new full-
time staff required would depend on both the legislative requirements
for implementing mandatory E-Verify and the effectiveness of efforts
USCIS has underway to decrease the need for individuals to visit SSA
field offices. SSA officials told us that SSA would need time and a
phased-in approach for implementation of a mandatory E-Verify program
in order to handle the increased workload for SSA field offices.
USCIS and SSA Are Implementing Plans to Reduce Delays and Improve
Efficiency in the E-Verify Process:
In prior work, we reported that secondary verifications lengthen the
time needed to complete the employment verification process. The
majority of E-Verify queries entered by employers--about 92 percent--
confirm the employee is authorized to work within seconds. About 7
percent of queries are not confirmed by the initial automated check and
result in SSA tentative nonconfirmations, while about 1 percent result
in DHS tentative nonconfirmations.[Footnote 20] With regard to the SSA
tentative nonconfirmations, USCIS officials told us that the majority
of erroneous tentative nonconfirmations occur because employees'
citizenship status or other information, such as name changes, is not
up to date in the SSA database, generally because individuals have not
notified SSA of information changes that occurred. SSA updates its
records to reflect changes in individuals' information, such as
citizenship status or name, when individuals request that SSA make such
updates. USCIS officials stated that, for example, when aliens become
naturalized citizens, their citizenship status, updated in DHS
databases, is not automatically updated in the SSA database. When these
individuals' information is queried through E-Verify, a tentative
nonconfirmation would be issued because under the current E-Verify
process, those queries would only check against SSA's database; they
would not automatically check against DHS's databases. Therefore, these
individuals would have to go to an SSA field office to correct their
records in SSA's database.
USCIS and SSA are planning to implement initiatives to help address SSA
tentative nonconfirmations, particularly those issued for naturalized
citizens, with a goal of reducing the need for employees to visit SSA
field offices. For example, in May 2008, USCIS plans to launch an
initiative to modify the electronic verification process so that
employees whose naturalized citizenship status cannot be confirmed by
SSA will also be checked against DHS's databases.[Footnote 21] A query
that could not be confirmed by SSA would be automatically checked
against DHS's databases. If the employee's information matched
information in DHS's databases and the databases showed that the person
was a naturalized U.S. citizen, E-Verify would confirm the employee as
work authorized. USCIS and SSA intend for this modification to enable
USCIS to check naturalization status before an SSA tentative
nonconfirmation is issued as a result of the naturalized citizen's
information not matching citizenship information in SSA's database.
According to USCIS, this should help eliminate the need for the
employee who is a naturalized citizen to travel to an SSA field office
before being confirmed as work authorized. USCIS has projected that as
it implements this modification, the number of tentative
nonconfirmations should also be reduced. It remains to be seen by how
much the number of tentative nonconfirmations will be reduced as a
result of this modification. Furthermore, in May 2008 USCIS plans to
modify the E-Verify process so that naturalized citizens who receive a
citizenship-related mismatch will be able to call DHS directly to
resolve this mismatch rather than having to visit an SSA field office
in-person to resolve the mismatch. In addition USCIS and SSA are
exploring options for updating SSA records with naturalization
information from DHS records. Although this could help to further
reduce the number of SSA tentative nonconfirmations, USCIS and SSA are
still in the planning stages, and implementation of this initiative may
require significant policy and technical considerations, such as how to
link records in SSA and DHS databases that are stored according to
different identifiers.[Footnote 22]
USCIS and SSA are also implementing additional options to reduce delays
and improve the efficiency of the verification process. USCIS stated
that it is adding databases to the E-Verify program, increasing the
number of databases against which queries of employees' information are
checked. For example, USCIS stated that it is incorporating real-time
arrival data for noncitizens from the Inter-Agency Border Inspection
System (IBIS) database, which tracks individuals, to help reduce the
number of tentative nonconfirmations issued for newly arrived
noncitizens queried through E-Verify.[Footnote 23] SSA has also
coordinated with USCIS to develop an automated notification capability,
known as the Employment Verification SSA Tentative Nonconfirmation
Automated Response (EV-STAR) system. This system, available in all SSA
field offices, became operational in October 2007 and allows SSA field
office staff to view the same information that is provided to employers
through E-Verify. In addition, SSA field office staff can notify the
employer of the status of and any actions taken on the employee's
record to resolve the tentative nonconfirmation and, through EV-STAR,
this information is directly updated in E-Verify.[Footnote 24] USCIS
and SSA officials stated that EV-STAR has helped to reduce the burden
on SSA, employers, and employees in resolving SSA tentative
nonconfirmations. These efforts may help improve the efficiency of the
verification process. However, they will not entirely eliminate the
need for some individuals to visit SSA field offices to update their
records, as USCIS and SSA efforts do not address all types of changes
that may occur in individuals' information and result in the issuance
of tentative nonconfirmations, such as individuals' name changes.
USCIS has Identified Areas where E-Verify is Vulnerable to Fraud, but
Proposed Actions Do Not Address All Types of Fraud and Raise Privacy
Concerns:
In our prior work, we reported that E-Verify enhances the ability of
participating employers to reliably verify their employees' work
eligibility.[Footnote 25] The program also assists participating
employers with identification of false documents used to attempt to
obtain employment. When newly hired employees present false
information, E-Verify will not confirm the employees' work eligibility
because their information, such as a false name or social security
number, would not match SSA and DHS databases. However, the current E-
Verify program cannot help employers detect forms of identity fraud,
such as cases in which an individual presents genuine documents that
are borrowed or stolen because the system will verify an employee when
the information entered matches DHS and SSA records, even if the
information belongs to another person.
USCIS has taken steps to reduce fraud associated with the use of
genuine documents in which the original photograph is substituted for
another. A photograph screening tool was incorporated into E-Verify in
September 2007 and is accessible for most employers registered to use E-
Verify.[Footnote 26] According to USCIS officials, the photograph
screening tool is intended to allow an employer to verify the
authenticity of a lawful permanent resident card ("green card") or an
employment authorization document, both of which contain photographs of
the document holder. As a part of the E-Verify program, the photograph
screening tool is used in cases when an employee presents a green card
or employment authorization document to prove his or her work
eligibility. The employer then inputs the card number into E-Verify,
and the system then retrieves a copy of the employee's photograph that
is stored in DHS databases through the photograph screening tool. The
employer is then supposed to match the photograph shown on the computer
screen with the photograph on the original or photocopy of the
employee's lawful permanent resident card or employment authorization
document and make a determination as to whether the photographs
match.[Footnote 27] In completing the Form I-9, the employer is
required to review the documents presented by an employee to prove
identity and work eligibility and to certify that the documents appear
genuine and relate to the individual presenting them. According to
USCIS, for about 5 percent of employee queries that are run through E-
Verify, employees present a green card or employment authorization
document as identification.[Footnote 28]
The use of the photograph screening tool is currently limited because
newly hired employees who are queried through the E-Verify system and
present documentation other than green cards or employment
authorization documents to verify work eligibility--about 95 percent of
E-Verify queries--are not subject to the tool. Expansion of the
photograph screening tool would require incorporating other forms of
documentation with related databases that store photographic
information, such as passports issued by the Department of State and
driver's licenses issued by states. Efforts to expand the tool have
been initiated, but are still in the early planning stages. For
example, according to USCIS officials, USCIS and the Department of
State have begun exploring ways to include visa and U.S. passport
documents in the tool, but these agencies have not yet reached
agreement regarding the use of these documents. The Department of State
is working with DHS to determine the business processes and system
requirements of linking passport and visa databases to E-Verify.
Additionally, USCIS is negotiating with state motor vehicle
associations to incorporate driver's license photographs into E-Verify,
and is seeking state motor vehicle agencies that are willing to
participate in an image-sharing pilot program. As of April 2008, no
motor vehicle agencies have yet officially agreed to participate in the
pilot program.
As USCIS works to address fraud through data sharing with other
agencies, privacy issues--particularly in regards to sharing employee
information with employers--may be a challenge. In its 2007 evaluation
of E-Verify, Westat reported that some employers joining the Web Basic
Pilot were not appropriately handling their employees' personal
information. For example, some employers did not privately inform
employees that queries of the employees' information through E-Verify
resulted in tentative nonconfirmations. The report also pointed out
that anyone wanting access to the system could pose as an employer and
obtain access by signing a MOU with the E-Verify program. USCIS
officials told us that taking actions to ensure that employers are
legitimate when they register for E-Verify is a long term goal for the
program. However, according to USCIS officials, implementing such
controls to verify employer authenticity may require access to
information from other agencies, such as Internal Revenue Service-
issued employer identification numbers, to which USCIS currently does
not have access. Additionally, some states and agencies have raised the
issue of employee privacy. Representatives of motor vehicle agencies
have expressed concerns in regards to the potential threats to customer
privacy should their digital images be accessible to employers. USCIS
is working to address these privacy concerns. However, it remains to be
seen whether USCIS will be able to fully address all privacy concerns
related to data and photograph sharing and use among agencies and
employers.
While USCIS Created a Monitoring and Compliance Branch, Work Remains to
Staff the Branch, Develop Tools, and Finalize Enforcement Protocols:
E-Verify is vulnerable to acts of employer fraud, such as when the
employer enters the same identity information to authorize multiple
workers. Moreover, although Westat has found that most participating
employers comply with E-Verify program procedures, some employers have
not complied or have misused the program, which may adversely affect
employees. The findings from the Westat report showed that while
changes to the E-Verify program appear to have increased employer
compliance with program procedures compared to the previous version of
the program, employer noncompliance still occurred. For example, Westat
reported that some employers used E-Verify to screen job applicants
before they were hired, an activity that is prohibited under E-Verify
procedures. Additionally, some employers took prohibited adverse
actions against employees--such as restricting work assignments,
reducing pay, or requiring employees to work longer hours or in poor
conditions--while they were contesting tentative nonconfirmations.
Finally, Westat found that some employers did not always promptly
terminate employees after receiving confirmation that the employees
were not authorized to work in the United States. USCIS reported that
it is working to address these issues by, for example, conducting
education and outreach activities about the E-Verify program.
In 2005, we reported that E-Verify provided a variety of reports that
could help USCIS determine whether employers followed program
requirements intended to safeguard employees--such as informing
employees of tentative nonconfirmation results and referring employees
contesting tentative nonconfirmations to SSA or DHS--but that USCIS
lacked sufficient staff to review employers' use of the program. Since
then, USCIS has added staff to its Verification Office, created a
Monitoring and Compliance branch to review employers' use of the E-
Verify system, and identified planned activities for the
branch.[Footnote 29] As of April 2008, the Monitoring and Compliance
branch had 21 staff and planned to hire 32 additional staff in fiscal
years 2008 and 2009. Additionally, by January 2009, USCIS plans to
establish a regional verification office with 135 staff members to
conduct status verification and monitoring and compliance
activities.[Footnote 30]
With regard to compliance and monitoring activities, USCIS has
identified 53 employer and employee behaviors of noncompliance and
monitors the program for some of these behaviors. These behaviors
include, among others,
* the use of counterfeit documents or substituted identities;
* use of the E-Verify system that does not follow procedures identified
in the MOU between employers and DHS, such as failures to complete
training or perform verifications within specific time frames;
* misuse of E-Verify to discriminate and/or adversely affect employees
such as verifying existing employees, prescreening, firing employees
who received tentative nonconfirmations, or not firing unauthorized
employees; and:
* detecting instances where privacy information is compromised, such as
by sharing of passwords or nonemployer access of the system.
Using some of these behaviors, among other things, to monitor
employers' use of E-Verify, USCIS plans to interact with employers who
might not be complying with program procedures in four main ways: (1)
sending letters or e-mails to advise employers of misuse of the system
and to provide appropriate remedies, (2) follow-up phone calls when
employers fail to respond to the initial letters or e-mails, (3) audits
through which USCIS requests documents and information be sent to the
agency from potentially noncompliant employers, and (4) site visits for
in-person interviews and document inspection when desk audits reveal
cause for further investigation. Under the current voluntary program,
USCIS plans to contact about 6 percent of participating employers
regarding employer noncompliance. USCIS estimates that under a
mandatory E-Verify program, the percentage of employers the agency
would contact regarding employer noncompliance would decrease to about
1 to 3 percent. If, as a result of its monitoring activities, USCIS
found that it needed to contact more than 3 percent of employers, USCIS
officials stated that the agency plans to modify its approach for
addressing employers' noncompliance. As of April 2008, USCIS plans to
allocate its monitoring and compliance efforts as follows: 45 percent
of its activities would involve sending letters and e-mails to
employers; 45 percent would involve follow-up phone calls; 9 percent
would involve desk audits; and 1 percent would involve site visits. As
part of a mandatory program, USCIS would modify this distribution of
monitoring activities by, for example, using letters, e-mails, and
phone calls for a larger percentage of interactions with employers.
However, USCIS is still in the early stages of implementing its
monitoring and compliance activities. Therefore, it is too early to
tell whether these activities will ensure that all employers fully
follow program requirements and properly use E-Verify under a mandatory
program, especially since such controls cannot be expected to provide
absolute assurance.
The Monitoring and Compliance branch could help ICE better target its
worksite enforcement efforts by providing information that indicates
cases of employers' egregious misuse of the system. Although ICE has no
direct role in monitoring employer use of E-Verify and does not have
access to program information that is maintained by USCIS unless it
requests such information from USCIS, ICE officials told us that
program data could indicate cases in which employers or employees may
be fraudulently using the system and therefore should help the agency
better target its worksite enforcement resources toward those
employers. ICE officials noted that, in a few cases, they have
requested and received E-Verify data from USCIS on specific employers
who participate in the program and are under ICE investigation. For
example, USCIS told us that by monitoring use of the E-Verify program
to date, staff were able to identify instances of fraudulent use of
social security numbers and referred such egregious examples of fraud
to ICE. However, USCIS and ICE officials told us that case referrals or
requests for information between the two agencies have been infrequent,
and information on the resolution of these referrals is not formally
maintained by ICE. USCIS expects to complete and implement a compliance
tracking system to track referrals to and responses to requests from
ICE on compliance cases in fiscal year 2009. USCIS and ICE are also
negotiating an MOU to define roles, responsibilities, and mechanisms
for sharing and using E-Verify information. Outstanding issues that
need to be resolved for the MOU include the type of information that
USCIS will provide to ICE through the referral process and the purposes
for which ICE will use this information. While the MOU between USCIS
and ICE is incomplete, ICE officials anticipate that, if the E-Verify
program is made mandatory, they would receive an increased number of
referrals for investigation from USCIS. Therefore, ICE officials told
us that they plan to require additional resources to follow-up on USCIS
referrals. ICE also hopes to be able to use elements of the E-Verify
program to detect and track large-scale instances of employer or
employee fraud.
This concludes my prepared statement. I would be pleased to answer any
questions you and the Subcommittee Members may have.
GAO Contact and Staff Acknowledgments:
For further information about this testimony, please contact Richard
Stana at 202-512-8777.
Other key contributors to this statement were Burns Chamberlain,
Frances Cook, Josh A. Diosomito, Rebecca Gambler, Danielle Pakdaman,
Evi Rezmovic, Julie E. Silvers, and Adam Vogt.
[End of section]
Footnotes:
[1] 8 U.S.C. §1324a(a).
[2] IRCA provided for sanctions against employers who do not follow the
employment verification (Form I-9) process. Employers who fail to
properly complete, retain, or present for inspection a Form I-9 may
face civil or administrative fines ranging from $110 to $1,100 for each
employee for whom the form was not properly completed, retained, or
presented. Employers who knowingly hire or continue to employ
unauthorized aliens may be fined from $275 to $11,000 for each
employee, depending on whether the violation is a first or subsequent
offense. Employers who engage in a pattern or practice of knowingly
hiring or continuing to employ unauthorized aliens are subject to
criminal penalties consisting of fines up to $3,000 per unauthorized
employee and up to 6 months imprisonment for the entire pattern or
practice.
[3] GAO, Immigration Enforcement: Weaknesses Hinder Employment
Verification and Worksite Enforcement Efforts, GAO-05-813 (Washington,
D.C.: Aug. 31, 2005) and GAO, Employment Verification: Challenges Exist
in Implementing a Mandatory Electronic Verification System, GAO-07-924T
(Washington, D.C.: June 7, 2007).
[4] Westat, Findings of the Web Basic Pilot Evaluation (Washington,
D.C.: September 2007).
[5] In 2005, the most recent year for which data are available, there
were approximately 7.4 million employer establishments in the United
States.
[6] In general, in cases when the E-Verify system cannot confirm an
employee's work authorization status through the initial automatic
check, the system issues the employer either an SSA or a DHS tentative
nonconfirmation of the employee's work authorization status, which
requires the employee to resolve any data inaccuracies if he or she is
able or chooses to do so.
[7] Employers are required to retain the Form I-9 for 3 years after the
date the person begins work or 1 year after the person's employment is
terminated, whichever is later.
[8] Eight of these documents establish both identity and employment
eligibility (e.g., U.S. passport or permanent resident card); 12
documents establish identity only (e.g., driver's license); and 7
documents establish employment eligibility only (e.g., Social Security
card).
[9] Pub. L. No. 104-208, div. C, §§ 401-404, 110 Stat. 3009-546, 3009-
655-65.
[10] The other two pilot programs mandated by IIRIRA--the Citizen
Attestation Verification Pilot Program and the Machine-Readable
Document Pilot Program--were discontinued in 2003 due to technical
difficulties and unintended consequences identified in evaluations of
the programs. See Institute for Survey Research and Westat, Findings of
the Citizen Attestation Verification Pilot Program Evaluation
(Washington, D.C.: April 2003) and Institute for Survey Research and
Westat, Findings of the Machine-Readable Document Pilot Program
Evaluation (Washington, D.C.: May 2003).
[11] Through a process known as enumeration, SSA assigns a unique
social security number to each individual who meets the requirements
for one. Social security numbers are issued to most U.S. citizens at
birth. They are also available to noncitizens lawfully admitted to the
United States with permission to work. Numident contains demographic
information on every social security number holder.
[12] According to the E-Verify User Manual, a participating employer
can notify DHS that it is not terminating an employee whose employment
was not authorized by E-Verify or who did not contest a tentative
nonconfirmation.
[13] Social Security Administration Office of the Inspector General,
Monitoring the Use of Employee Verification Program, A-03-06-36122
(Washington, D.C.: Sept. 26, 2006).
[14] Active users are those employers who have run at least one query
in fiscal year 2008.
[15] USCIS used employment data from the Bureau of Labor Statistics to
develop these query projections. According to these statistics,
employers hire an average of 9 new employees per year. The total number
of employers is 7.4 million, based on these statistics, which amounts
to approximately 63 million employment verifications per year.
[16] USCIS officials told us that under the current voluntary E-Verify
program, which uses one server, the program has been tested to handle
about 40 million queries per year. In addition, under the current
voluntary program, the program has been tested to handle about 45,000
employer registrations per day and, with two additional servers, could
handle up to 145,000 employer registrations per day.
[17] The 4-year phased-in implementation proposal used by USCIS in
making this estimate assumes that the federal employers with over 250
employees would be required to use E-Verify the first year. Mandatory
use of E-Verify would be required for all employers with more than 100
employers in the second year, employers with more than 30 employees in
the third year, and all remaining employers in the fourth year.
[18] In developing these estimates, SSA assumed that that the federal
government, federal contractors, and employers with over 250 employees
would be required to use E-Verify the first year. Mandatory use of E-
Verify would be required for all employers with more than 100 employers
in the second year, employers with more than 30 employees in the third
year, and all remaining employers in the fourth year. SSA assumed that
employers must ensure that their current employees have been verified
through E-Verify within 4 years. SSA also assumed that the first group
of employers will have to begin verifying newly hired employees by the
end of fiscal year 2009. Moreover, in developing the estimate SSA
assumed that there will be a gradual increase in verification requests
from fiscal years 2009 through 2012, peaking at 110 million in fiscal
year 2012, before settling off at a consistent volume of 60 million
verification requests each year, with some employers participating
voluntarily in E-Verify to verify new and current employees before they
are required to do so.
[19] According to SSA, the vast majority of individuals visit an SSA
field office, and a small percentage contact SSA's 1-800 number. SSA
officials told us that in fiscal year 2007, for every 100 E-Verify
queries, 1.7 individuals contacted SSA, on average, about 1.5 times, or
a total a total of 2.6 contacts per 100 queries. Based on planned
changes to the E-Verify process, SSA currently estimates that for every
100 queries submitted to E-Verify in fiscal year 2008, 1.4 individuals
will contact SSA, on average about 1.5 times each, for a total of 2.1
contacts per 100 queries. This 1.4 estimate accounts for planned
modifications to the E-Verify program through which (1) individuals
whose naturalized citizenship status cannot be confirmed by SSA will
also be queried against DHS's databases; and (2) individuals who
receive a tentative nonconfirmation because their citizenship status
does not match SSA's records can contact USCIS via a 1-800 number to
resolve the tentative nonconfirmation rather than having to visit an
SSA field office to do so.
[20] These data on the results of initial E-Verify queries may not
serve as a basis for projecting the number of queries that will be
automatically confirmed or receive a tentative nonconfirmation under a
mandatory E-Verify program. According to USCIS, there are preliminary
indications that because of system improvements, the percentage of
initial queries that are automatically confirmed as work authorized is
increasing, and the percentage of initial queries that result in
tentative nonconfirmations is decreasing.
[21] As of May 2008, USCIS will use the following databases to confirm
employee work authorization: DHS Central Index System; Computer Linked
Automated Information Management System 3; Interagency Border
Inspection System I-94 data; Image Storage and Retrieval System; SSA
Numerical Identification File; Interagency Border Inspection System
Real Time Arrival; and the Computer Linked Automated Information
Management System 4 and the Reengineered Naturalization Automated
Casework System, which will be added in May 2008.
[22] In general, SSA records are stored according to social security
numbers, while DHS records are stored according to alien numbers, known
as A-numbers.
[23] E-Verify is using IBIS data to verify the work authorization of
non-citizens whose data are not found in the DHS Central Index System.
The Central Index System contains information on the status of
applicants/petitioners seeking immigration benefits to include, among
others, lawful permanent residents, naturalized citizens, U.S. border
crossers, and aliens who illegally entered the United States.
[24] Prior to the establishment of EV-STAR, employers were not
automatically notified through the E-Verify system after an SSA-issued
tentative nonconfirmation was resolved. Rather, after resolving the
tentative nonconfirmation, the employee had to present the tentative
nonconfirmation notification, containing SSA's notice of resolution of
the tentative nonconfirmation, to the employer and the employer then
had to access E-Verify to resolve the tentative nonconfirmation in the
system.
[25] GAO-05-813.
[26] As of April 2008, E-Verify employers who use a designated agent
(another company or individual who runs queries on behalf of the
company) or Web services (an access method that allows employers to use
their own software to access E-Verify) cannot access the Photo
Screening Tool.
[27] Employers are supposed to notify USCIS of their determination of
whether the photographs matched, or if they could not make a
determination, through the E-Verify system. If an employer determines
that the photographs do not match, a tentative nonconfirmation is
issued.
[28] This number excludes queries submitted by a designated agent or
through Web services.
[29] The mission of USCIS's Monitoring and Compliance branch is to: (1)
prevent fraud, discrimination, or illegal use of E-Verify; (2) educate
employers and provide assistance with compliance procedures; (3) follow
up with employers on misuse of the system; and (4) monitor E-Verify
system usage and refer identified instances of fraud, discrimination,
or illegal use of the system to enforcement authorities such as ICE or
the Department of Justice's Office of Special Counsel.
[30] According to USCIS officials, as participation in the E-Verify
program grows, the agency will need 3 additional field monitoring
officers and 25 additional field compliance officers for every 100,000
employers.
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