Potential Problems with the New E-Verify Security Enhancements

by Ronald Shapiro
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E-Verify is a voluntary computer system provided to employers by USCIS that allows employers to electronically verify the employment eligibility of newly-hired employees. E-Verify can only be used to check new hires, must be used within 3 days of the employee’s start date, and cannot be used to pre-screen employees.

In order to participate in E-Verify, the employer must submit information provided on the Form I-9 into the E-Verify online system. E-Verify then checks that information against the Social Security Administration (SSA) and the Department of Homeland Security databases, and provides the employer with one of the following results within seconds: (a) Employment Authorized (employee is authorized to work); (b) Verification in Process (DHS will respond within 24 hours); (c) Tentative Non-Confirmation (information provided by DHS does not correspond with SSA information); (d) Final Non-Confirmation (employee is not work authorized).

Last December, U.S. Customs and Immigration Services (USCIS) announced that it is implementing an enhancement to the E-Verify program that is designed to help combat identity fraud. According to USCIS, the enhancement “provides a critical safeguard to the E-Verify system by detecting and preventing potential fraudulent use of SSNs to gain work authorization.”

USCIS found that, in some cases, users of E-Verify were entering information that appeared valid, but was in fact stolen, borrowed, or purchased from another individual. With the new safeguard in place, USCIS can lock a SSN that appears to have been misused so that it cannot continue to be used in fraudulent submissions. If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC), which the employee can contest at a local Social Security Administration (SSA) field office. If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify. USCIS encourages employees who successfully confirm their identities to contact USCIS for more information about identity theft and fraud prevention.

While the program has good intentions, it is not without potential problems, however. Although the USCIS claims that it’s e-verify enhancements strengthen the program’s “ability to combat identity fraud” through the implementation of standards that have “proven effective in protecting individual identity,” USCIS has not identified specifically how the SSA will determine whether the SSN belongs to the potential employee or not. Additionally, by locking the SSN, the true owner of the SSN will be required to resolve the TNC with the SSA – which could be time-consuming and burdensome.

Employers are reminded that that no adverse employment action may be taken against an employee while a TNC matter remains unresolved, which includes termination, suspension, withheld pay, a delayed start date, or other limitations on employment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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