Electronic Employment Eligibility Verification
Andorra Bruno
Specialist in Immigration Policy
January 9, 2014
Congressional Research Service
7-5700
www.crs.gov
R40446
Electronic Employment Eligibility Verification
Summary
Comprehensive immigration reform has been a key issue for the 113th Congress. Some of the
most difficult immigration policy questions on the table concern unauthorized immigration and
unauthorized employment. Today’s discussions about these issues build on the work of prior
Congresses. In 1986, following many years of debate about unauthorized immigration to the
United States, Congress enacted the Immigration Reform and Control Act (IRCA). This law
sought to address unauthorized immigration, in part, by requiring all employers to examine
documents presented by new hires to verify identity and work authorization and to complete and
retain employment eligibility verification (I-9) forms. Ten years later, in the face of a growing
illegal alien population, Congress attempted to strengthen the employment verification process by
establishing pilot programs for electronic verification, as part of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA).
The Basic Pilot program (known now as E-Verify), the first of the three IIRIRA employment
verification pilots to be implemented and the only one still in operation, began in November
1997. Originally scheduled to terminate in November 2001, it has been extended several times. It
is currently authorized until September 30, 2015, in accordance with P.L. 112-176.
E-Verify is administered by the Department of Homeland Security’s U.S. Citizenship and
Immigration Services (DHS/USCIS). On December 14, 2013, there were 497,053 employers
enrolled in E-Verify, representing more than 1,400,000 hiring sites. E-Verify is a primarily
voluntary program, but there are some mandatory participation requirements. Among them is a
rule, which became effective on September 8, 2009, requiring certain federal contracts to contain
a new clause committing contractors to use E-Verify.
Under E-Verify, participating employers submit information about their new hires (name, date of
birth, Social Security number, immigration/citizenship status, and alien number, if applicable)
from the I-9 form. This information is automatically compared with information in Social
Security Administration and, if necessary, DHS databases to verify identity and employment
eligibility.
Legislation on electronic employment eligibility verification has been considered in the 113th
Congress. The Senate has passed a comprehensive immigration reform bill (S. 744) that includes
a related title, and the House Judiciary Committee has ordered to be reported a stand-alone bill
(H.R. 1772). In weighing proposals on electronic employment verification, Congress may find it
useful to evaluate them in terms of their potential impact on a set of related issues: unauthorized
employment; verification system accuracy, efficiency, and capacity; discrimination; employer
compliance; privacy; and verification system usability and employer burden.
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Contents
Background ...................................................................................................................................... 1
E-Verify............................................................................................................................................ 2
Verification Process ................................................................................................................... 2
Growth and Participation ........................................................................................................... 3
Funding ...................................................................................................................................... 4
Recent Proposals on Electronic Employment Verification .............................................................. 4
Legislation in Recent Congresses .............................................................................................. 5
E-Verify Regulations ................................................................................................................. 6
Policy Considerations ...................................................................................................................... 7
Unauthorized Employment ........................................................................................................ 7
Verification System Accuracy, Efficiency, and Capacity .......................................................... 8
Accuracy of Findings .......................................................................................................... 9
Database Accuracy ............................................................................................................ 13
System Efficiency ............................................................................................................. 14
System Capacity ................................................................................................................ 14
Discrimination ......................................................................................................................... 14
Employer Compliance ............................................................................................................. 17
Privacy ..................................................................................................................................... 18
System Usability and Employer Burden ................................................................................. 20
Conclusion ..................................................................................................................................... 20
Tables
Table 1. E-Verify Erroneous Tentative Nonconfirmation Rates by
Citizenship and Immigration Status ............................................................................................ 16
Contacts
Author Contact Information........................................................................................................... 21
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Electronic Employment Eligibility Verification
Background
Many years of debate about unauthorized immigration to the United States culminated in the
enactment of the Immigration Reform and Control Act (IRCA) of 1986.1 That year, there were an
estimated 3.2 million unauthorized immigrants (illegal aliens) in the country.2 IRCA coupled
legalization programs for certain segments of the unauthorized population with provisions to
deter future unauthorized immigration by reducing the magnet of employment. These latter
provisions reflected a belief, widely held then and now, that most unauthorized aliens enter and
remain in the United States in order to work. To reduce the job magnet, IRCA amended the
Immigration and Nationality Act (INA)3 to add a new Section 274A, which makes it unlawful to
knowingly hire, recruit, or refer for a fee, or continue to employ, an unauthorized alien, and
requires all employers to examine documents presented by new hires to verify identity and work
authorization and to complete and retain employment eligibility verification (I-9) forms. These
INA Section 274A provisions are sometimes referred to collectively as employer sanctions.
The IRCA provisions did not have the effect of curtailing future illegal immigration. After falling
to an estimated 1.9 million in 1988 as eligible unauthorized aliens legalized their status, the
unauthorized population began to grow. By the early 1990s, it had surpassed pre-IRCA levels.4
The I-9 process was effectively undermined by the ready availability of genuine-looking
fraudulent documents. The challenge that document fraud continues to pose to the I-9 system was
discussed in a 2009 report prepared for the Department of Homeland Security (DHS):
[T]he likelihood of employers detecting counterfeit documents depends on the quality of the
documents, the employers’ familiarity with immigration and other documents, and their
expertise in detecting fraudulent documents. The U.S. Department of Homeland Security
(DHS) expects employers to exercise reasonable diligence in reviewing documents but does
not expect them to be experts or to question reasonable-appearing documents.5
Ten years after the enactment of IRCA, Congress attempted to strengthen the employment
verification process as part of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA).6 IIRIRA directed the Attorney General to conduct three largely voluntary pilot
programs for electronic employment eligibility confirmation. After examining documents and
completing I-9 forms as required under INA Section 274A,7 employers participating in a pilot
program would seek to confirm the identity and employment eligibility of their new hires. IIRIRA
tasked the Attorney General with establishing a confirmation system to respond to inquiries made
by participants in these pilot programs “at any time through a toll-free telephone line or other toll-
free electronic media concerning an individual’s identity and whether the individual is authorized
to be employed.” The former Immigration and Naturalization Service (INS) within the U.S.
1 P.L. 99-603, November 6, 1986.
2 CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, p. 2.
3 Act of June 27, 1952, ch. 477, as amended. The INA is the basis of current immigration law.
4 CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, pp. 2-3.
5 Westat, Findings of the E-Verify Program Evaluation, December 2009, p. 131 (hereinafter cited as Westat Report,
December 2009).
6 Division C of P.L. 104-208, September 30, 1996.
7 IIRIRA modified the I-9 requirements for pilot program participants.
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Department of Justice (DOJ) had initial responsibility for administering the employment
eligibility confirmation pilot programs. In 2003, DHS assumed this responsibility.8
E-Verify
The Basic Pilot program, the first of the three IIRIRA employment verification pilots to be
implemented and the only one still in operation, began in November 1997 in the five states with
the largest unauthorized alien populations at the time.9 In December 2004, in accordance with
P.L. 108-156, the program became available nationwide, although it remained primarily
voluntary. The Basic Pilot program has changed over the years. Since July 2005, it has been
entirely Internet-based. It is administered by DHS’s U.S. Citizenship and Immigration Services
(USCIS).
The Basic Pilot Program was briefly renamed the Employment Eligibility Verification (EEV)
Program by the Administration of George W. Bush, and was again renamed E-Verify by that
Administration in August 2007.10 IIRIRA, as originally enacted, directed the Attorney General to
terminate the Basic Pilot program four years after going into effect, unless Congress provided
otherwise. Congress has extended the life of the Basic Pilot program/E-Verify several times. Most
recently, it extended E-Verify until September 30, 2015, as part of P.L. 112-176.11
Verification Process
As part of the I-9 process, all employers must review documents presented by new hires to verify
their identity and employment authorization and, along with the new hires, must complete I-9
forms. (A new revised I-9 form was published by USCIS in 2013.)12 Employers participating in
E-Verify then must submit information from the I-9 form about their new hires (name, date of
birth, Social Security number, immigration/citizenship status, and alien number, if applicable) via
the Internet for confirmation.
8 The Homeland Security Act of 2002 (P.L. 107-296, November 25, 2002) abolished INS and transferred most of its
functions to DHS as of March 1, 2003. P.L. 108-156 (December 3, 2003) amended IIRIRA to transfer responsibility for
the pilot programs from the Attorney General to the Secretary of Homeland Security.
9 The original Basic Pilot states were California, Florida, Illinois, New York, and Texas. The other two IIRIRA pilot
programs—the Machine-Readable Document Pilot (MRDP) and the Citizen Attestation Verification Pilot (CAVP)—
were terminated in 2003.
10 The IIRIRA provisions were never amended to reflect these name changes, however. In this report, “E-Verify” is
used to refer to the program generally, and “Basic Pilot” is used at times to refer to the program prior to the August
2007 E-Verify name change.
11 P.L. 112-176, September 28, 2012. The earlier extensions were enacted in P.L. 107-128, January 16, 2002 (which
amended IIRIRA to direct that the program be terminated after six years); P.L. 108-156, December 3, 2003 (which
amended IIRIRA to direct that the program be terminated after 11 years); P.L. 110-329, September 30, 2008 (which
effectively established a March 6, 2009, termination date); P.L. 111-6, March 6, 2009 (which effectively established a
March 11, 2009, termination date); P.L. 111-8, March 11, 2009 (which established a September 30, 2009, termination
date); P.L. 111-68, October 1, 2009 (which effectively established an October 31, 2009, termination date), and P.L.
111-83, October 28, 2009 (which established a September 30, 2012, termination date).
12 Among the changes to the I-9 form are new data fields, including for employee telephone number and e-mail
address, and revised instructions.
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The information in the employer’s query is automatically compared with information in SSA’s
primary database, the Numerical Identification File (Numident), which contains records of
individuals issued Social Security numbers. For those employees identifying themselves as
citizens, if the information submitted by the employer matches the information in Numident and
SSA records confirm citizenship, the employer is notified that the employee’s work authorization
is verified. If the information submitted by the employer about a self-identified citizen matches
the information in Numident but SSA records cannot confirm citizenship, the information is
automatically checked against USCIS naturalization databases. If this check confirms citizenship,
the employer is notified that the employee’s work authorization is verified. If the employer-
submitted information about a new hire does not match information in Numident, the employer is
notified that the employee has received an SSA tentative nonconfirmation finding.
In cases in which the employer-submitted information matches SSA records but the individual
self-identifies as a noncitizen, the information is sent electronically to USCIS for verification of
work authorization. If the USCIS electronic check confirms work authorization, the employer is
so notified. If the electronic check does not confirm work authorization, an Immigration Status
Verifier (ISV) at USCIS checks additional databases. If the ISV is unable to confirm work
authorization, the employer is notified that the employee has received a USCIS tentative
nonconfirmation finding.
Employers are required to notify their employees about SSA and USCIS tentative
nonconfirmation findings. If an employee chooses to contest a tentative nonconfirmation finding,
the employer must refer the case to SSA or USCIS, as appropriate.13 The employee has eight
federal government work days from the referral date to contact the appropriate agency to resolve
the issue. If an employee does not contest the finding within that period or the contest is
unsuccessful, the system issues a final nonconfirmation.
Growth and Participation
E-Verify has been growing in recent years. On January 31, 2006, there were 5,272 employers
enrolled in the program, representing 22,710 hiring sites. Three years later, on January 10, 2009,
there were 103,038 employers enrolled, representing 414,110 hiring sites. Three years after that,
on March 17, 2012, there were 345,467 employers enrolled, representing more than 1,090,000
hiring sites. By December 14, 2013, employer enrollment in E-Verify stood at 497,053, and there
were 1,491,171 participating sites.14 Based on the number of firms in the United States according
to 2010 U.S. Census Bureau data,15 these enrolled employers represented about 9% of U.S.
employers.
As the number of enrolled employers has grown, so has the number of employer queries, or cases,
handled by E-Verify. Between FY2007 and FY2013, the number of E-Verify queries increased
13 Prior to September 8, 2013, an employee who received a TNC would first be given a TNC notice by the employer. If
the employee opted to contest the TNC, the employer would then provide the employee with a referral letter. As of
September 8, 2013, the TNC notice and referral letter have been combined into the further action notice.
14 E-Verify enrollment data were provided to CRS by USCIS.
15 According to U.S. Census Bureau Statistics of U.S. Businesses (SUSB) annual data, there were 5,734,538 firms in
the United States in 2010. A firm is defined as “a business organization consisting of one or more domestic
establishments in the same state and industry that were specified under common ownership or control.” SUSB data and
definitions are available at http://www.census.gov/econ/susb/.
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more than sixfold, from 3.3 million to 25.0 million.16 For comparison purposes, there were about
52 million nonfarm hires in the United States in calendar year 2012, according to Bureau of
Labor Statistics data.17
As mentioned, E-Verify is a primarily voluntary program. Under IIRIRA, however, violators of
INA prohibitions on unlawful employment or those who engage in unfair immigration-related
employment practices may be required to participate in a pilot program. IIRIRA also states that
each department of the federal government and each Member of Congress, each officer of
Congress, and the head of each legislative branch agency “shall elect to participate in a pilot
program.”18 In August 2007, the Office of Management and Budget (OMB) issued a
memorandum requiring all federal departments and agencies to begin verifying their new hires
through E-Verify as of October 1, 2007.19 In addition, federal regulations that went into effect in
2008 and 2009 included new E-Verify participation requirements, as discussed below.
Funding
USCIS, which administers E-Verify, is a fee-supported agency. Until FY2007, funding for the
Basic Pilot program came from unrelated USCIS fees. (As discussed below, employers are not
charged a fee to participate in E-Verify.) In recent years, however, Congress has appropriated
funding for E-Verify. Congress appropriated $100.0 million for E-Verify for FY2009, $137.0
million for FY2010, $103.4 million for FY2011, and $102.4 million for FY2012.20 For FY2013,
the Consolidated and Further Continuing Appropriations Act, 2013, included $111.9 million for
E-Verify.21
Recent Proposals on Electronic
Employment Verification
Although the unauthorized alien resident population has declined in size since its 2007 high point
of an estimated 12 million, it remains substantial. According to estimates by DHS, unauthorized
alien residents in the United States numbered about 11.5 million in 2011.22 The Pew Hispanic
16 FY2007 query data are from Statement of Theresa C. Bertucci, USCIS, at U.S. Congress, House Committee on the
Judiciary, Subcommittee on Immigration Policy and Enforcement, E-Verify—Preserving Jobs for American Workers,
hearing, 112th Cong., 1st sess., February 10, 2011, p. 1, http://judiciary.house.gov/_files/hearings/pdf/
Bertucci%2002102011.pdf (hereinafter cited as USCIS hearing testimony, February 2011); FY2013 query data were
provided to CRS by USCIS; data are as of December 14, 2013.
17 U.S. Department of Labor, Bureau of Labor Statistics, “Job Openings and Labor Turnover—January 2013,” news
release, March 12, 2013, http://www.bls.gov/news.release/pdf/jolts.pdf.
18 IIRIRA §402(e). These IIRIRA provisions have never been amended to reflect the fact that only one pilot program
remains in operation. The federal department provisions further state that the secretary of each department may limit
pilot program participation to hiring in certain states or geographic areas and to specified divisions within the
department.
19 U.S. Office of Management of Budget, “Verifying the Employment Eligibility of Federal Employees,” Memorandum
for the Heads of Departments and Agencies, August 10, 2007.
20 P.L. 110-329, September 30, 2008 (FY2009); P.L. 111-83, October 28, 2009 (FY2010); P.L. 112-10, April 15, 2011
(FY2011); P.L. 112-74, December 23, 2011 (FY2012).
21 P.L. 113-6, March 26, 2013. See CRS Report R42644, Department of Homeland Security: FY2013 Appropriations.
22 U.S. Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant
(continued...)
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Center has estimated that there were 11.2 million unauthorized residents in 2010, of which some
8 million were in the civilian labor force that year.23 Policy makers have considered an expansion
of electronic employment verification—whether though E-Verify or a new system—as a key
option for addressing unauthorized employment.
Legislation in Recent Congresses
In the 109th Congress, both the House and Senate passed major immigration bills (H.R. 4437 and
S. 2611, respectively) that included significant and different electronic employment eligibility
verification provisions. These bills were never reconciled.24 In the 110th Congress, the
Consolidated Appropriations Act, 2008,25 included limited language on E-Verify, but no major
electronic employment eligibility provisions were enacted.26 In the 111th Congress, a series of E-
Verify extensions was enacted, as cited.27
Bills related to electronic employment eligibility verification were introduced in the 112th
Congress. These bills would have variously made E-Verify permanent, made E-Verify mandatory
for all employers or a subset of employers, permitted or required the verification of previously
hired workers through E-Verify, and authorized a new electronic employment eligibility
verification system. The 112th Congress did not enact any of these provisions, but it extended the
existing E-Verify program until September 30, 2015, as part of P.L. 112-176. In addition, the
Consolidated Appropriations Act, 2012, as enacted, included some limited language on E-Verify,
prohibiting funds made available to federal agencies under the act to be expended on new hires
who were not verified through E-Verify.28
Bills on electronic employment eligibility verification have seen legislative action in the 113th
Congress. The Senate has passed a comprehensive immigration reform bill, the Border Security,
Economic Opportunity, and Immigration Modernization Act (S. 744), that includes related
provisions, and the House Judiciary Committee has ordered to be reported the Legal Workforce
Act (H.R. 1772). Both bills would amend the INA to permanently authorize a new electronic
verification system modeled on E-Verify, which would be mandatory for all employers.29
(...continued)
Population Residing in the United States: January 2011, by Michael Hoefer, Nancy Rytina, and Bryan C. Baker,
March 2012.
23 Jeffrey S. Passel and D'Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, Pew
Hispanic Center, February 1, 2011, p. 17 (hereinafter cited as Pew, Unauthorized Immigrant Population 2010).
24 See archived CRS Report RL33125, Immigration Legislation and Issues in the 109th Congress.
25 P.L. 110-161, December 26, 2007.
26 See archived CRS Report RL34204, Immigration Legislation and Issues in the 110th Congress.
27 See archived CRS Report R40848, Immigration Legislation and Issues in the 111th Congress.
28 P.L. 112-74, December 23, 2011. See archived CRS Report R42036, Immigration Legislation and Issues in the 112th
Congress.
29 See CRS Report R43320, Immigration Legislation and Issues in the 113th Congress. Also see CRS Report R43097,
Comprehensive Immigration Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744.
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E-Verify Regulations
Several federal rules that became effective in 2008 and 2009 require employers to participate in
E-Verify in order to take advantage of certain opportunities. One of these rules implements an
executive order issued by President George W. Bush in 2008 to require federal contractors to
conduct electronic employment eligibility verification. The order read, in part:
Executive departments and agencies that enter into contracts shall require, as a condition of
each contract, that the contractor agree to use an electronic employment eligibility
verification system designated by the Secretary of Homeland Security to verify the
employment eligibility of: (i) all persons hired during the contract term by the contractor to
perform employment duties within the United States; and (ii) all persons assigned by the
contractor to perform work within the United States on the Federal contract.30
The Secretary of Homeland Security subsequently designated E-Verify as the required
employment eligibility verification system for contractors.31 The final rule to implement the
executive order was published in November 2008.32 It requires covered federal contracts to
contain a new clause committing contractors to use E-Verify “to verify that all of the contractors’
new hires, and all employees (existing and new) directly performing work under Federal
contracts, are authorized to work in the United States.”33 After several delays, the rule became
applicable on September 8, 2009.34 At a February 13, 2013, hearing of the House Judiciary
Committee’s Subcommittee on Immigration and Border Security, USCIS reported that more than
50,000 federal contractors were enrolled in E-Verify.35
In addition, immigration regulations issued by the Bush Administration require employers to be
users of E-Verify in order to be able to employ certain temporary residents (nonimmigrants).36 In
an interim final rule, effective April 8, 2008, DHS extended the maximum period of optional
practical training (OPT) for foreign students on F-1 visas who have completed a science,
technology, engineering, or mathematics degree. Under this rule, eligible F-1 students can extend
30 Executive Order 13465, “Amending Executive Order 12989, as Amended,” 73 Federal Register 33285-33287, June
11, 2008.
31 U.S. Department of Homeland Security, “DHS Designates E-Verify as Employment Eligibility Verification System
for All Federal Contractors,” news release, June 9, 2008.
32 U.S. Department of Defense, General Services Administration, National Aeronautics and Space Administration,
“Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification,” 73 Federal Register
67651-67705, November 14, 2008.
33 Ibid., p. 67654. The rule requires inclusion of the E-Verify clause in prime federal contracts with a period of
performance of at least 120 days and a value above the simplified acquisition threshold ($100,000), with some
exemptions.
34 The rule originally had an effective date of January 15, 2009, but both the effective date of the rule and the
applicability date of the rule, on or after which contracting officers would include the new E-Verify clause in relevant
contracts, were subsequently changed. The final amendment changed the applicability date to September 8, 2009. U.S.
Department of Defense, General Services Administration, National Aeronautics and Space Administration, “Federal
Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification,” 74 Federal Register 26981, June
5, 2009.
35 Statement of Soraya Correa, USCIS, at U.S. Congress, House Committee on the Judiciary, How E-Verify Works and
How It Benefits American Employers and Workers, February 27, 2013, http://judiciary.house.gov/hearings/113th/
02272013/Correa%2002272013.pdf (hereinafter cited as USCIS hearing testimony, February 2013).
36 Nonimmigrants are foreign nationals who are admitted to the United States for a designated period of time and a
specific purpose. See CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions.
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their post-graduation OPT period, previously limited to 12 months, for 17 additional months, for
a maximum OPT period of 29 months. In order to be eligible for this extension, however, the
students must be employed by an employer that is enrolled in and is a participant in good
standing in E-Verify.37
A DHS final rule on the H-2A temporary agricultural worker program, effective January 17,
2009, likewise requires employer participation in E-Verify as a condition of receiving an
employment authorization benefit. Under the rule, an H-2A worker who is waiting for an
extension of H-2A status based on a petition filed by a new employer can begin working for that
new employer before the extension is approved, if the new employer is enrolled in and is a
participant in good standing in E-Verify. If the new employer is not an E-Verify participant, the
worker would not be authorized to begin working for the new employer until the extension of stay
application is approved.38
Policy Considerations
The 113th Congress has taken action on bills to permanently authorize a new electronic
employment eligibility verification system modeled on E-Verify that would be mandatory for all
employers. In weighing these bills and any other related proposals that may emerge, policy
makers may want to take the following issues into account.
Unauthorized Employment
The primary goal of an employment eligibility verification system is to ensure that individuals
holding jobs are authorized to work in the United States. Independent studies of E-Verify,
conducted for INS and DHS over the years by Westat and Temple University’s Institute for
Survey Research, have evaluated whether the system has reduced unauthorized employment and
met other policy goals.39 The most recent evaluation, issued in 2012 by Westat, considered the
accuracy of E-Verify findings, particularly for employment-authorized workers.40
USCIS reports that in FY2012, 1.1% of the 20.2 million cases processed through E-Verify
received final nonconfirmations (FNCs; i.e., final findings that the workers’ employment
authorization could not be confirmed). Westat evaluators have determined that most individuals
37 U.S. Department of Homeland Security, “Extending Period of Optional Practical Training by 17 Months for F-1
Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B
Petitions,” 73 Federal Register 18944-18956, April 8, 2008; 8 C.F.R. 214.2(f)(10)(ii)(C).
38 U.S. Department of Homeland Security, “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 Federal
Register 76891-76914, December 18, 2008; 8 C.F.R. 274a.12(b)(21). For information on the H-2A visa program, see
CRS Report R43161, Agricultural Guest Workers: Legislative Activity in the 113th Congress.
39The evaluation reports are: Institute for Survey Research, Temple University, and Westat, INS Basic Pilot Evaluation
Summary Report, January 29, 2002; Institute for Survey Research, Temple University, and Westat, Findings of the
Basic Pilot Program Evaluation, June 2002 (hereinafter cited as Basic Pilot Evaluation Report, June 2002); Westat,
Interim Findings of the Web-Based Basic Pilot Evaluation, December 2006; Westat, Findings of the Web Basic Pilot
Evaluation, September 2007 (hereinafter cited as Westat Report, September 2007); and Westat Report, December
2009. The 2009 Westat report is available on the USCIS website, http://www.uscis.gov. Selected E-Verify statistics are
also available on the USCIS website.
40 Westat, Evaluation of the Accuracy of E-Verify Findings, July 2012 (hereinafter cited as Westat Report, July 2012).
This report is available on the USCIS website, http://www.uscis.gov.
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receiving FNCs are, in fact, not authorized to work. (According to Westat estimates, about 94% of
workers who received FNCs in FY2009 were unauthorized workers.)41 Thus, if and when workers
receiving final nonconfirmations are terminated, unauthorized employment would decrease. The
extent of this decrease would depend, in part, on whether these workers were able to find other
employment and if so, how long it took them to do so. It may be that E-Verify further helps
reduce unauthorized employment by deterring unauthorized workers from applying for positions
with employers that participate in E-Verify.
The effectiveness of E-Verify in reducing unauthorized employment through either final
nonconfirmation findings or by discouraging applications, however, is limited by the size of the
program relative to overall employment. Its effectiveness is also limited by its inability to detect
various forms of fraud. Under E-Verify, the information on the I-9 form is checked against
information in SSA and DHS databases. The system is able to detect certain types of document
fraud, such as when a new hire presents counterfeit documents containing information about a
non-work authorized or nonexistent person. As discussed in the next section, however, E-Verify
has only limited ability to detect other types of document fraud and identity fraud.
In the future, the authors of the 2009 Westat report posit, E-Verify may indirectly deter
unauthorized employment by increasing the cost of securing that employment. According to the
report, as unauthorized workers become more knowledgeable about E-Verify, they will
increasingly obtain counterfeit, borrowed, or stolen documents with information about work-
authorized persons, or will use fraudulent breeder documents, such as birth certificates, to obtain
“legitimate” ones. The authors speculate that the perceived need for more sophisticated forms of
fraud, with more expensive price tags, may have the long-term effect of reducing unauthorized
employment:
As it becomes harder to obtain fraudulent documents that will not be detected by E-Verify,
the cost of such documents will presumably increase. Therefore, an important deterrent value
of the Program ultimately may be to increase the cost of obtaining unauthorized
employment, which, in turn, would cause some reduction in unauthorized employment;
however, the amount of such reduction cannot be easily determined.42
Another possible outcome, if E-Verify makes it too difficult for unauthorized aliens to obtain
legitimate employment, is that they may end up working under the table, thereby increasing the
risks of worker exploitation. An opinion piece on Reason Online, affiliated with Reason
magazine, made this argument:
In the end, E-verify will not “turn off the tap,” “dry up the pool of jobs,” or “turn off the
magnet.” It will simply encourage workers underground, where they will be more vulnerable
to abuse and less likely to pay taxes.43
Verification System Accuracy, Efficiency, and Capacity
In order for an electronic employment eligibility verification system to reduce unauthorized
employment and not deprive legal workers of job opportunities, it must respond to queries
41 Westat report, July 2012, pp. 21-23.
42 Westat Report, December 2009, p. 133.
43 Kerry Howley, “Walls of Paper,” April 21, 2008, http://www.reason.com.
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correctly—that is, it must confirm the employment eligibility of individuals who are, in fact,
authorized to work and not confirm the employment eligibility of individuals who lack work
authorization. To be most effective, the system also must be efficient. IIRIRA required that the
confirmation system, intended to be used as part of all three of the original pilot programs, be
designed and operated to, among other things, maximize its reliability.44
Accuracy of Findings
The independent evaluations of E-Verify conducted by Westat and the Institute for Survey
Research have analyzed the accuracy of the system using a variable known as the erroneous
tentative nonconfirmation (TNC) rate for ever-authorized employees. This error rate, which can
be calculated from available data, is defined as the percentage of individuals ultimately verified
through the system that initially receives a tentative nonconfirmation finding. The erroneous TNC
rate for ever-authorized employees was 4.8% for the first two years of the Basic Pilot Program
(November 1997-December 1999 period); that is, 4.8% of the workers who were ultimately found
to be work authorized first received a tentative nonconfirmation.45 The erroneous TNC rate has
decreased significantly since the late 1990s, amounting to 0.3% for both the third quarter of
FY2010 (April 2010-June 2010)46 and for FY2012.47 As explained below in the “Discrimination”
section, however, error rates vary for different groups.
There are important limitations to the erroneous TNC rate as a measurement of error, however.
The variable does not take into account work-authorized individuals who receive tentative
nonconfirmations but who, for whatever reason, do not contest them; these individuals are not
classified as “ever-authorized.” In addition, the data used to calculate the erroneous TNC rate
include individuals who are found to have work authorization by the system, but who are not, in
fact, work authorized. Eliminating these false positives (used here to refer to findings that
unauthorized workers are work-eligible) from the calculation would change the error rate. Thus,
as explained in the 2009 Westat report:
[T]he erroneous TNC rate is an imperfect measure of program success because it
underestimates the inaccuracy rate for authorized workers and because it is not possible to
produce an estimate of an analogous inaccuracy rate for non-employment-authorized
workers.48
As part of its 2009 evaluation of E-Verify, Westat evaluators developed new measures of
inaccuracy to more fully assess the system’s performance. These new inaccuracy rates are
estimates of the consistency of E-Verify findings with actual work authorization status. The
inaccuracy rate for authorized workers is an estimate of the percentage of work-authorized
workers not initially found to be authorized to work through E-Verify. For the period from April
2008 to June 2008, the inaccuracy rate for authorized workers was approximately 0.8%, meaning
44 IIRIRA §404(d)(1).
45 Westat Report, September 2007, p. 57.
46 Westat Report, July 2012, p. 22.
47 USCIS E-Verify “Performance” web page, available at http://www.uscis.gov.
48 Westat Report, December 2009, p. 116.
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that less than 1% of authorized workers were initially found by the system to lack work
authorization.49
Analogously, the inaccuracy rate for unauthorized workers is an estimate of the percentage of
workers without work authorization that is initially and incorrectly found to be employment
authorized through E-Verify. For the April 2008-June 2008 period, the inaccuracy rate for
unauthorized workers was approximately 54%, meaning that about half of the unauthorized
workers checked through E-Verify were incorrectly found to be authorized to work. The total
inaccuracy rate is an estimate of the percentage of all workers checked through E-Verify who
receive inaccurate initial work authorization findings. For the April 2008-June 2008 period, E-
Verify’s total inaccuracy rate was approximately 4.1%, meaning that 4.1% of workers received
initial E-Verify findings that were inconsistent with their actual work authorization status.50
There are several key reasons for the inconsistencies between E-Verify findings and actual work
authorization status. Inaccurate findings for authorized workers are due mainly to data input
errors and inaccurate or out-of-date federal government records. For unauthorized workers,
incorrect work authorization findings are due mainly to fraud—both document fraud, in which
employees present counterfeit or invalid documents or fraudulently obtained “valid” documents,
and identity fraud, in which employees present valid documents issued to other individuals. The
2009 and 2012 Westat reports cited identity fraud as a chief source of inaccurate work
authorization findings for unauthorized workers. While E-Verify can detect certain types of
document fraud, it has limited ability to detect such fraud when the “counterfeit documents are of
reasonable quality and contain information about actual work-authorized persons who resemble
the worker providing the documentation.”51 Valid documents obtained by using fraudulent birth
certificates or other breeder documents are also difficult for E-Verify to detect. According to the
2009 Westat report:
E-Verify will only detect this type of fraud if the person obtains the “valid” document using
information about a fictitious person or alters the data about a real person that the E-Verify
system checks, such as date of birth.52
Some observers, like Jim Harper of the Cato Institute, are particularly concerned about the
potential for increased identity fraud if E-Verify were to become mandatory for all employers. In
written testimony for a 2007 House hearing on employment verification and worksite
enforcement, Harper took the position that expanding E-Verify would increase identity fraud. He
argued that to gain approval under a nationwide electronic system, unauthorized workers would
seek “documents with genuine, but rarely used, name/SSN combinations,” which would “increase
illicit trade in Americans’ Social Security numbers.”53
49 The 2012 Westat report did not include an updated inaccuracy rate for authorized workers.
50 Ibid., pp. 116-117. The total inaccuracy rate is much closer to the inaccuracy rate for authorized workers than to the
inaccuracy rate for unauthorized workers because the overwhelming majority of workers in the labor force and checked
through E-Verify are authorized to work. The 2012 Westat report did not include an updated inaccuracy rate for
unauthorized workers or an updated total inaccuracy rate.
51 Ibid., p. 131.
52 Ibid., p. 131.
53 Statement of Jim Harper, in U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law, Proposals for Improving the Electronic Employment
Verification and Worksite Enforcement System, hearing, 110th Cong., 1st sess., April 26, 2007 (Washington, DC: GPO,
2007), p. 79 (hereinafter cited as Harper Testimony, April 2007).
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Initiatives to Improve Accuracy
USCIS has made changes to E-Verify in the past few years to address the sources of inaccuracy
for both authorized and unauthorized workers. One set of changes aims to reduce inaccuracies for
authorized workers due to data input errors and incorrect federal government records. Since
September 2007, in cases where an initial electronic check of SSA or USCIS records indicates a
mismatch, the system automatically prompts the employer to double check the data in a query and
make any corrections before E-Verify issues an SSA TNC or refers a case to an USCIS
Immigration Status Verifier for additional database checks.54 A December 2009 addition “enables
E-Verify to recognize European date format and common clerical errors of transposed visa and
passport numbers.”55
Other enhancements involve inclusion of additional databases in the E-Verify process that are
automatically checked, as appropriate, before a tentative nonconfirmation is issued. In a May
2008 change, which is known as Naturalization Phase I and is described above as part of the
standard verification process, USCIS naturalization databases are automatically checked in cases
in which SSA records cannot confirm citizenship for a self-identified citizen.56 This change seeks
to reduce the number of tentative nonconfirmations issued to naturalized citizens whose SSA
records have not been updated to reflect their citizenship status.57 In February 2009, Department
of State passport records were incorporated into the E-Verify program. These records are checked
when a self-identified citizen presents a U.S. passport to establish identity and employment
eligibility as part of the I-9 process and DHS or SSA cannot immediately confirm work
eligibility.58 In addition, in May 2008, real time arrival data for noncitizens from the Integrated
Border Inspection System was added to the system.59 In October 2012, access to another
database—DHS’s Arrival and Departure Information System (ADIS) database—was added to E-
Verify. These enhancements are intended to reduce mismatches for recent arrivals.
Another initiative, known as E-Verify Self-Check, enables individuals to voluntarily check their
work authorization status online through E-Verify to determine whether there are any mismatches
between the information they enter and the information in SSA or DHS databases that need to be
corrected. First implemented on a pilot basis in 2011, E-Verify Self-Check became available
nationwide in February 2012.60
54Statement of Michael Aytes, USCIS Acting Deputy Director, at U.S. Congress, House Committee on Appropriations,
Subcommittee on Homeland Security, Priorities Enforcing Immigration Law, hearing, 111th Cong., 1st sess., April 2,
2009, p. 2 (hereinafter cited as USCIS hearing testimony, April 2009).
55 U.S. Government Accountability Office, Employment Verification: Federal Agencies Have Taken Steps to Improve
E-Verify, but Significant Challenges Remain, GAO-11-146, December 2010, p. 18 (hereinafter cited as GAO,
Employment Verification).
56 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “USCIS Announces
Enhancements to E-Verify Program,” news release, May 5, 2008 (hereinafter cited as USCIS news release, May 2008).
57 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Westat Evaluation of the E-
Verify Program: USCIS Synopsis of Key Findings and Program Implications, January 28, 2010, p. 10 (hereinafter cited
as USCIS Synopsis of Westat Report). Prior to implementation of Naturalization Phase I, if SSA records were unable to
confirm citizenship for a self-identified citizen, SSA would issue a tentative nonconfirmation finding.
58 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “USCIS Adds Passport Data in
E-Verify Process for Foreign-Born Citizens,” news release, March 4, 2009 (hereinafter cited as USCIS news release,
March 2009).
59 USCIS news release, May 2008.
60 On March 21, 2011, E-Verify Self-Check became available to residents of five states (Arizona, Colorado, Idaho,
(continued...)
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USCIS has likewise implemented enhancements to E-Verify aimed at reducing inaccuracies for
unauthorized workers. In September 2007, the agency launched a Photo Screening Tool to
improve E-Verify’s ability to detect a certain type of identity fraud. The Photo Tool comes into
play if a new hire presents an Employment Authorization Document (EAD), a Permanent
Resident Card (green card), or a U.S. Passport61 to establish employment authorization. In such
cases, the employer checks the photo on the document provided by the new hire against the image
stored in USCIS databases. This tool enables detection of legitimately issued documents that have
been altered by photo-substitution. The effectiveness of the Photo Tool, however, is greatly
limited by the fact that new hires do not have to show either an EAD, a green card, or a U.S.
Passport; they can opt to show other documents to evidence identity and employment eligibility.62
According to USCIS, approximately 15% of all E-Verify cases in FY2012 used the Photo Tool.63
Another feature to reduce inaccurate findings for unauthorized workers is known as Records and
Information from DMVs for E-Verify (RIDE). Launched in June 2011, RIDE seeks to detect
document fraud in cases in which a new hire presents a driver’s license or state-issued
identification card to establish identity as part of the I-9 process. In cases in which a new hire
presents a driver’s license or state-issued identification card from a participating state, RIDE
enables E-Verify to compare the information on the document against state records. Mississippi
became DHS’s first partner in this effort in June 2011. Other states have since joined the RIDE
program. Florida joined RIDE in December 2012, Idaho joined in July 2013, and Iowa joined in
September 2013.
A more recent enhancement, announced by USCIS in November 2013, enables the E-Verify
system to lock Social Security numbers that appear to have been used fraudulently. According to
USCIS, it “will use a combination of algorithms, detection reports and analysis to identify
patterns of fraudulent SSN use and then lock the number in E-Verify.” Other E-Verify initiatives
under development for combating identity fraud, as identified by a USCIS official in testimony
prepared for a February 2013 House hearing, include “evaluating other identity assurance
techniques like those used in E-Verify’s Self Check, and developing an enhancement to allow
employees to lock their SSNs in E-Verify so they cannot be used by others.”64
Incorporating biometrics into the E-Verify system also has been suggested as a way to address
identity fraud, and some legislative proposals have included related language.65 Biometric
proposals, however, are highly controversial and raise a variety of concerns, including about costs
and worker privacy (see “Privacy”).
(...continued)
Mississippi, and Virginia) and Washington, DC. Additional information about E-Verify Self-Check is available at
http://www.uscis.gov/selfcheck.
61 U.S. Passport and U.S. Passport Card photographs were added to the Photo Tool in September 2010. USCIS hearing
testimony, February 2011, p. 6.
62 The 2009 Westat report recommended that USCIS discontinue use of the Photo Tool “until progress can be made on
expanding it to include a broader range of documents, including documents that are less tamper-proof and counterfeit-
resistant than are the documents currently in the Photo Screening Tool.” Westat Report, December 2009, p. 244.
USCIS rejected this recommendation, arguing that the Photo Tool was essential to its efforts to combat identity fraud.
USCIS Synopsis of Westat Report, p. 8.
63 USCIS hearing testimony, February 2013.
64 USCIS hearing testimony, February 2013.
65 See, for example, H.R. 2164 and H.R. 2885 in the 112th Congress.
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Database Accuracy
An accurate verification system requires accurate underlying data. Data inaccuracies can be a
source of false positives (i.e., findings that unauthorized workers are work-eligible) as well as
false negatives (i.e., findings that authorized workers are not work-eligible). In establishing the
Basic Pilot program and the other pilots, IIRIRA directed SSA and the former INS to maintain
accurate records.66
The 2002 evaluation of the Basic Pilot Program found that there were “serious problems with the
timeliness and accuracy of the INS database.”67 The 2007 Westat evaluation reported progress on
this front, but indicated that additional improvements were needed:
The accuracy of the USCIS database used for verification has improved substantially since
the start of the Basic Pilot program. However, further improvements are needed, especially if
the Web Basic Pilot becomes a mandated national program—improvements that USCIS
personnel report are currently underway. Most importantly, the database used for verification
is still not sufficiently up to date to meet the IIRIRA requirement for accurate verification,
especially for naturalized citizens.68
The accuracy of SSA’s Numident database was the subject of a report issued by the SSA Inspector
General in December 2006.69 Prompted by a congressional request, this review examined the
accuracy of the Numident fields relied on by E-Verify. The report found Numident to be
“generally accurate,” but also “identified some discrepancies” that could result in employers
receiving incorrect information in the employment eligibility verification process. More
specifically, the SSA Inspector General estimated that “discrepancies in approximately 17.8
million (4.1%) of the 435 million Numident records could result in incorrect feedback when
submitted through Basic Pilot.” The report noted particular concern about the “extent of incorrect
citizenship information” in Numident for foreign-born U.S. citizens and noncitizens.70
The 2009 Westat evaluation reported continued improvement in database accuracy, stating that
“the accuracy of the USCIS database, as measured by the erroneous TNC rate for workers ever
found authorized, has improved considerably” (see “Initiatives to Improve Accuracy”). As
discussed below in the “Discrimination” section, Westat further indicated in its 2009 report that
differences between the erroneous TNC rate for different groups (including for U.S.-born citizens
and naturalized citizens) had narrowed, although it also noted that the rate for naturalized citizens
“remains well above the rate for U.S.-born workers.”71
The 2012 Westat report noted efforts to improve database accuracy, while also making clear that
“[m]aintaining accurate, timely, and complete information on biographic data and immigration
and citizenship status presents a major challenge for Federal databases accessed by E-Verify.”
The report cited as reasons for these ongoing challenges the changing nature of immigration
66 IIRIRA §404(g).
67 Basic Pilot Evaluation Report, June 2002, p. 143.
68 Westat Report, September 2007, p. xxi.
69 Social Security Administration, Office of the Inspector General, Accuracy of the Social Security Administration’s
Numident File, Congressional Response Report, A-08-06-26100, December 2006, http://www.ssa.gov.
70 Ibid., p. ii.
71 Westat Report, December 2009, p. 233.
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status and a lack of public knowledge about the need to report name changes to SSA and
immigration agencies.72
System Efficiency
The efficiency of an employment eligibility verification system, like its accuracy, is
multidimensional. One measure of efficiency used in the independent evaluations of E-Verify is
the percentage of employees verified automatically or after initial review by a USCIS
Immigration Status Verifier—without a tentative nonconfirmation being issued (see “Verification
Process”). As reported by Westat, in the June 2004-March 2007 period, 93% of cases were
verified automatically or after initial ISV review. In April 2008-June 2008, 96% of cases were
verified automatically or after initial ISV review. According to USCIS, in FY2012, 98.65% of
cases were verified automatically.73
At the same time, employer groups and advocates for immigrants and low-income families
maintain that E-Verify is not efficient. In opposing legislative efforts to require certain employers
to use E-Verify, groups have argued that such mandatory participation would result in increased
bureaucracy and hiring delays.74
System Capacity
The capacity of an electronic employment eligibility verification system to handle queries about
most or all newly hired workers in the United States has arisen as an issue in light of proposals to
expand electronic verification or make it mandatory for all employers. In FY2013, as noted, E-
Verify received 25.0 million queries. In 2011 congressional testimony, a USCIS official reported
on E-Verify’s capacity to handle an expanded workload: “E-Verify currently has the capacity to
receive at least 60 million electronic queries annually if all new hires were run through the E-
Verify program.”75
A 2010 Government Accountability Office (GAO) report further cited information from E-Verify
program officials that USCIS had tested the E-Verify system in 2007 and determined that it could
process 240 million queries annually.76
Discrimination
At the time of IRCA’s enactment, there was widespread concern that the new employer sanctions
provisions would result in employment discrimination against foreign-looking or foreign-
sounding work-authorized individuals as, for example, employers opted not to hire them for fear
that they lacked work authorization or treated them differently than other work-authorized job
72 Westat Report, July 2012, p. 28.
73 USCIS E-Verify “Performance” web page, available at http://www.uscis.gov.
74 See, for example, Richard Kaplan, “Senate Excludes E-Verify Check on Illegal Immigrant Workers from Stimulus
Package,” February 10, 2009, http://www.hispanicbusiness.com; Friends Committee on National Legislation, “Strip E-
Verify from the Final Stimulus Package,” February 11, 2009, http://www.fncl.org.
75 USCIS hearing testimony, February 2011, p. 10.
76 GAO, Employment Verification, p. 44. According to the report, 240 million queries per year is the “higher estimate
of the number of queries expected to be generated by a mandatory E-Verify program.”
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applicants or workers.77 To partly address these types of concerns, IRCA added a new Section
274B to the INA to make it an unfair immigration-related employment practice to discriminate
against an individual, other than an unauthorized alien, in hiring, recruitment or referral for a fee,
or termination because of the individual’s national origin or the individual’s citizenship or
permanent immigration status. IRCA, as originally enacted, also directed GAO to report to
Congress on the implementation and enforcement of Section 274A to determine, among other
things, if “a pattern of discrimination has resulted” against U.S. citizens or other work-eligible
jobseekers.78 In 1990, GAO reported that widespread discrimination had occurred as a result of
IRCA.79 Congress, however, took no action on these findings.
One goal of the IIRIRA employment eligibility verification pilot programs was to reduce the type
of discrimination associated with the I-9 process. To that end, the law required that the
confirmation system, intended to be used as part of all three of the original pilot programs, be
designed and operated
to have reasonable safeguards against the system’s resulting in unlawful discriminatory
practices based on national origin or citizenship status, including (A) the selective or
unauthorized use of the system to verify eligibility; (B) the use of the system prior to an offer
of employment; or (C) the exclusion of certain individuals from consideration for
employment as a result of a perceived likelihood that additional verification will be required,
beyond what is required for most job applicants.80
These enumerated behaviors are prohibited under the E-Verify system, but evaluations have
found that some employers nevertheless practice them (see “Employer Compliance”).
The potential impact of the IIRIRA pilot programs on employment discrimination was the subject
of much debate during congressional consideration of the legislation. Some stakeholders
maintained that the availability of electronic verification could make employers more likely to
hire foreign-born individuals, thus reducing discrimination. On the other hand, immigrant
advocates expressed concerns that discrimination would increase, even if employers followed
proper pilot program procedures. They argued, for example, that work-authorized foreign-born
individuals would be more likely than their U.S.-born counterparts to receive tentative
nonconfirmations and, thus, to be subject to the inconveniences and other negative consequences
associated with these findings.
Evaluations of E-Verify have found evidence to support both of these predictions. According to
the 2009 Westat study, most E-Verify employers reported that using the system had no effect on
their willingness to hire foreign-born workers. Among those reporting an effect, the percentage of
users who indicated that the system made them more willing to hire immigrant workers was
substantially greater than the percentage who indicated that it made them less likely to do so.
77 Employment discrimination is defined here, as in the 2009 Westat report, as “differential treatment based on
individual characteristics, such as race or gender, that are unrelated to productivity or performance.” Westat Report,
December 2009, p. GL-2.
78 INA §274A(j), eliminated by IIRIRA §412(c).
79 U.S. General Accounting Office, Immigration Reform: Employer Sanctions and the Question of Discrimination,
GAO/GGD-90-62, March 1990. Note: At the time of the 1990 report, GAO was the General Accounting Office. It is
now the Government Accountability Office.
80 IIRIRA §404(d)(4).
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Based on these findings, the Westat report stated, “it is reasonable to conclude that the net effect
of the change is an increase in employers’ willingness to hire foreign-born workers.”81
At the same time, evaluations of E-Verify have consistently found that work-authorized foreign-
born workers are more likely than U.S.-born workers to receive erroneous tentative
nonconfirmations (initial findings that an individual’s work authorization cannot be confirmed).
Based on this increased likelihood of receiving an erroneous TNC, the 2009 Westat report stated
that “E-Verify contributes to post-hiring discrimination against foreign-born workers.”82 The
report discussed some of the impacts on workers of receiving a TNC, such as missed work time to
contest the finding and associated financial costs. In addition, according to the report, some work-
authorized employees who receive TNCs may quit their jobs. In cases in which employers do not
follow proper procedures, a TNC may result in a worker being fired.
The issue of differential rates of erroneous tentative nonconfirmation findings for different groups
has been a major concern for immigrant advocates and certain other interested parties. As noted,
the overall TNC rate for workers ultimately authorized by E-Verify for the third quarter of
FY2010 (April 2010-June 2010) was 0.3%. The erroneous TNC rate varied considerably by
group, however. The 2012 Westat study found that between April 2010 and June 2010, 0.2% of
citizens (U.S.-born and foreign-born) who were ultimately verified through the system first
received a tentative nonconfirmation. As shown in the last column of Table 1, erroneous TNC
rates were considerably higher for work-authorized noncitizens (LPRs and other noncitizens),
during these months. For this April 2010-June 2010 period, the gap in the erroneous TNC rate
between citizens and noncitizens was 1.8 percentage points, the gap between citizens and LPRs
was 0.7 percentage points, and the gap between citizens and noncitizens other than LPRs was 5.2
percentage points.83
Table 1. E-Verify Erroneous Tentative Nonconfirmation Rates by
Citizenship and Immigration Status
April-June 2006
April-June 2008
April-June 2010
U.S. Citizens
0.5%
0.3%
0.2%
Noncitizens 2.5% 1.7%
2.0%
Legal Permanent
Residents
1.3% 0.8% 0.9%
Other Noncitizens
7.1%
5.1%
5.4%
Source: CRS presentation of data in Westat, Evaluation of the Accuracy of E-Verify Findings, July 2012.
As illustrated in Table 1, the erroneous TNC rate for citizens has decreased over time. While the
erroneous TNC rates for noncitizens overall, for LPRs, and for other noncitizens were lower in
the April-June period in 2010 than in 2006, there was not a consistent downward trend between
these years. As shown in Table 1, these three erroneous TNC rates were lower in April-June 2008
than in the April-June 2010.
81 Westat Report, December 2009, p. 206.
82 Ibid., p. 235.
83 For each period, these differences are calculated by subtracting the erroneous TNC rate for citizens from the
erroneous TNC rate for each of the other groups.
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Earlier evaluations of E-Verify had reported relatively high erroneous tentative nonconfirmation
rates for naturalized citizens as compared to U.S.-born citizens or work-authorized noncitizens.
According to the 2009 Westat report, the erroneous tentative nonconfirmation rates for
naturalized citizens stood at 6.8% in April-June 2006, at 8.2% in April-June 2007, and at 7.0% in
January-March 2008, before falling to 3.2% in April-June 2008. The 2012 Westat report does not
provide a separate erroneous tentative nonconfirmation rate for naturalized citizens for more
recent years, although statements by USCIS suggest that this rate has further decreased.84
Historically, the relatively high erroneous TNC rate for naturalized citizens was attributed mainly
to SSA records not reflecting the fact that noncitizens had naturalized. As described in “Initiatives
to Improve Accuracy,” the Naturalization Phase I initiative was implemented to address this
problem and was credited in the 2009 Westat report with bringing about “a dramatic reduction in
the erroneous TNC rate for foreign-born citizens.”85 The incorporation of Department of State
passport data into E-Verify did not begin until 2009 and thus its effects are not reflected in the
2008 data cited here. In a March 2009 news release, however, USCIS reported that the addition of
passport data was “already reducing the incidences of mismatches among foreign-born
citizens.”86 In a related effort to correct erroneous TNCs issued to naturalized citizens, USCIS
implemented the Naturalization Phase II initiative in May 2008 to give naturalized citizens who
receive a tentative nonconfirmation the option of telephoning USCIS, rather than visiting an SSA
field office, to resolve the issue.87
Employer Compliance
Employer compliance in the context of E-Verify refers to employers’ properly following the
program’s policies and procedures, which include submitting an E-Verify query to verify a new
hire’s employment eligibility within three days after the hire date, providing written notice to
employees of tentative nonconfirmation findings, and not taking adverse actions against
employees who choose to contest tentative nonconfirmation findings. Employer compliance helps
strengthen E-Verify, while employer noncompliance can reduce the effectiveness of the program
in curtailing unauthorized employment and can result in discrimination. In the interest of
preventing discrimination, as noted, certain employer behaviors are prohibited by law. These
include the selective use of the system to verify employment eligibility and the use of the system
to prescreen job applicants.
The 2009 Westat evaluation found that employer compliance with the various E-Verify
requirements was “generally much higher than noncompliance.” In a notable example, the data
analyzed by Westat supported the idea that employers were not selectively submitting queries
only for citizens or noncitizens. The discussion of employer compliance in the 2009 report,
however, focused mainly on “noncompliant behaviors of interest.”88 Based on self-reported
information from employers, supplemented by information from worker interviews, record
84 See, for example, USCIS hearing testimony, February 2011, and USCIS hearing testimony, February 2013.
85 Westat Report, December 2009, p. 239. The Westat report also described an “unintended consequence” of this
initiative in increasing the percentage of unauthorized workers who were found work authorized. These workers were
committing identity fraud by using the identity of naturalized citizens.
86 USCIS news release, March 2009.
87 USCIS news release, May 2008.
88 Westat Report, December 2009, p. 147.
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reviews, and other sources, the evaluation identified a range of prohibited behaviors that
employers were engaging in, including the following:
• Some employers did not follow procedures with respect to training employees on
the E-Verify system.
• Some employers used E-Verify to screen job applicants.
• Some employers used E-Verify for existing employees.
• Some employers did not notify employees of tentative nonconfirmation findings
at all or did not provide written notification of TNCs.
• There was evidence that a small number of employers discouraged employees
with tentative nonconfirmations from contesting the findings.
• Some employers took prohibited adverse actions against employees while they
were contesting tentative nonconfirmation findings. These actions included
restricting work assignments, delaying training, or reducing pay.
• Some employers did not always follow the legal requirement to promptly
terminate the employment of employees receiving FNC findings.89
The 2012 Westat report further discussed the negative implications for E-Verify accuracy of
employers’ not following proper procedures when employees receive TNCs. According to Westat,
if all employment-authorized workers were properly informed of tentative nonconfirmations,
there would be a significant decrease in the issuance of final nonconfirmations to work-
authorized workers. As mentioned, the 2012 Westat report indicated that about 94% of workers
who received FNCs in FY2009 were unauthorized workers. This measure is known as the FNC
accuracy rate. The Westat evaluators estimated as part of the 2012 report that if all employment-
authorized workers had been informed of their TNCs and the contesting process, the FNC
accuracy rate in FY2009 would have increased to 99%.90
A key issue to consider with respect to employer compliance is the extent to which requiring
employers to participate in E-Verify or another electronic employment eligibility verification
system, as under some proposals in the 113th and earlier Congresses, could affect compliance. It
seems plausible that, for a variety of reasons, mandatory participants as a whole may have lower
levels of compliance than voluntary users.
Privacy
Employee privacy was another issue considered in the development of the original IIRIRA pilot
programs. Among the IIRIRA requirements for the confirmation system was that the system be
89 Ibid., p. 147-160.
90 Westat Report, July 2012, p. 39. In a related E-Verify change, an employee e-mail address field was added to the
system in June 2013. In cases in which an employee opts to provide an e-mail address on the new I-9 form, the
employer must enter this information into E-Verify. E-Verify can then send the employee e-mail notifications about his
or her case, including TNCs. Employers, however, continue to receive E-Verify notifications as well and are still
required to provide TNC notifications to employees.
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designed and operated “with appropriate ... safeguards to prevent unauthorized disclosure of
personal information.”91
The 2009 Westat report stated that SSA and USCIS had taken steps to protect worker privacy in
connection with E-Verify. It explained that both agencies had policies to ensure the security of the
databases used in E-Verify. According to the report, all employers participating in E-Verify must
sign a memorandum of understanding and are only given access to the cases they submit.
The 2009 report also noted some potential privacy-related weaknesses of E-Verify. Among them
is a concern that individuals could improperly use E-Verify to obtain information about others.
Another potential weakness involves employers not informing workers that they have received
TNCs in private settings. In surveys conducted as part of the 2007 and 2009 Westat evaluations of
E-Verify, over 90% of surveyed employers reported that they consistently informed workers of
TNCs in private. Worker surveys conducted as part of the 2009 evaluation yielded different
findings, with about a quarter of the surveyed workers who commented on the subject indicating
that they were not notified of a TNC in a private area.92
Proposals to expand E-Verify, particularly proposals to make the system mandatory for all
employers, have heightened the concerns of some interested parties about employee privacy. In
his 2007 House testimony, Jim Harper of the Cato Institute argued that a nationwide electronic
employment verification system would have serious privacy consequences. He drew sharp
distinctions between a paper-based I-9 system, in which employee information “remains
practically obscure,” and a web-based electronic system, in which the entered information is very
easy for the participating agencies to access, copy, and use. In Harper’s view, any electronic
verification system would be at risk of becoming “a surveillance system ... that observes all
American workers.”93
The American Civil Liberties Union (ACLU) likewise expressed concerns about the threats to
privacy posed by a mandatory E-Verify system, in a statement submitted to the House Judiciary
Committee at the time of the committee’s E-Verify hearing in February 2013.94 The statement
argued that a mandatory E-Verify system “would create a virtual national ID and would lay the
groundwork for a possible biometric national ID system.” In the view of the ACLU, a “national
ID system” would threaten personal privacy and individual freedom:
Our society is built on the presumption of privacy: as long as we obey the law, we are all free
to go where we want and do what we want ... without the government (or the private sector)
looking over our shoulders or monitoring our behavior. A national ID system would turn
those assumptions upside down by making every person’s ability to participate in a
fundamental aspect of American life—the right to work—contingent upon government
approval.
91 IIRIRA §404(d)(3).
92 Westat Report, December 2009, p. 202.
93 Harper Testimony, April 2007, p. 82.
94 Written statement of the American Civil Liberties Union, for a hearing by U.S. Congress, House Committee on the
Judiciary, How E-Verify Works and How It Benefits American Employers and Workers, February 27, 2013,
http://www.aclu.org/files/assets/aclu_statement_mandatory_everify_house_hearing_022713_final.pdf. (The ACLU did
not testify at the hearing.)
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System Usability and Employer Burden
Another of the IIRIRA requirements for the pilot program confirmation system was that it be
designed and operated to maximize its ease of use by employers.95 According to the 2009 Westat
evaluation, most employers found E-Verify to be an effective and accurate tool that was not
burdensome. For some employers, however, there was a perceived burden. In response to a 2008
employer survey conducted in connection with the 2009 evaluation, 24% of employers who had
enrolled in E-Verify but who had either not used it or stopped using it said that they had decided
the system “would be too burdensome to use.”96
Employers are not charged a fee by the government to participate in E-Verify, but they may incur
set-up costs (such as, for training and computer hardware) and operating costs (such as, for wages
for verification staff and computer maintenance). According to the 2009 Westat report, 74% of
employers surveyed indicated that they incurred no direct set-up costs. The median total cost for
those reporting direct set-up costs was $100, although 10% of this group indicated that they spent
at least $1,000. Similarly, with respect to operating costs, 77% of survey respondents reported no
direct maintenance costs. The median annual cost for those reporting direct maintenance costs
was $400, although 10% of those surveyed indicated that they spent at least $5,000.97
If E-Verify becomes a mandatory program, the percentage of employers in the higher-cost group
may grow. Employers that do not currently have the personnel or hardware to conduct electronic
verifications could find required participation particularly burdensome.
Conclusion
The policy issues discussed here may be especially important to consider in the current context of
proposals to require all employers to conduct electronic employment eligibility verification. A
mandatory system could arguably make it possible to identify many more unauthorized workers.
At the same time, under such a system, any inaccuracies, inefficiencies, or privacy breaches that
occurred could affect much larger numbers of employees and employers. Employer compliance
under a mandatory system would seem to be a salient issue, especially since it has direct
implications for other issues, notably discrimination. Employer burden may be another important
consideration. It may be that a mandatory system would require new strategies to address these
issues.
95 IIRIRA §404(d)(1).
96 Westat Report, December 2009, p. 84.
97 Ibid., pp. 182-183.
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Author Contact Information
Andorra Bruno
Specialist in Immigration Policy
abruno@crs.loc.gov, 7-7865
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