Much like the drunk who looks near the street lamp for a lost key because that's the only place where there's light, House and Senate conferees have granted a three-year extension of life support to the still-tottering E-Verify system -- the only legit e-game in town for confirming employment eligibility. Congressional gamblers also double-downed on their E-Verify bet by approving an additional $137 million in the Homeland Security funding bill for the beleaguered program.
Immediately the decision provoked controversy. Republican Senator Jeff Sessions has said that three years is not enough. The bill, according to Sessions, should have made E-Verify a permanent weapon in the government's employer-sanctions arsenal and should have placed into law the Obama-approved, Bush-era regulation -- effective since September 8 -- that requires inclusion of mandatory E-Verify workforce testing in new federal procurement contracts.
Others upset by the Congressional action include E-Verify opponents who would scotch the system because it has not yet proven itself ready for prime time. E-Verify does not detect borrowed or stolen identities. It still flags about 4% of all queries as tentative non-confirmations (TNCs) of employment eligibility, adversely affecting a worker population of some nine million. As the General Accountability Office (GAO) has reported, E-verify has caused the Social Security Administration electronic database to fail twice last summer for "extended" periods, causing GAO to worry about proposals that would make E-Verify mandatory for all employers:
[F]ederal legislation has been proposed to, among other things, require the use of the E-Verify program by employers across the nation. If such legislation is enacted, agency officials estimate that the number of queries to E-Verify could quickly surpass 60 million per year—nearly 10 times the number of requests in fiscal year 2008.
Even more troubling, as reported in the Harvard Law & Policy Review, is the risk of an increase in unlawful employment discrimination and worker firings. Already wrongful termination lawsuits are blaming E-Verify as the trigger for job losses. Courts may therefore soon determine whether the DHS-endowed employer immunity from civil liability in its Memorandum of Understanding for good-faith reliance on the E-Verify database will close scrutiny.
One federal court has issued a temporary restraining order (at p. 16) in a comparable employer-sanctions enforcement setting (involving the now repudiated Social-Security No-Match regulation) where the Homeland Security Department purported to grant immunity against civil liability for an employer’s good-faith reliance on a government-prescribed immigration-enforcement regimen.
President Obama is expected to sign the Homeland Security authorization, including the revivification of E-Verify. Time will tell whether the expected increase in litigation and adverse impacts on employers and lawfully authorized workers will have been worth Congress' expensive bet on the problem-plagued E-Verify program.