Rayburn House Office Building
Introduction
Chairman Gallegly, Ranking Member Lofgren, and Members of the Subcommittee, I appreciate the opportunity to appear before you today to discuss our shared goals of protecting American workers and providing effective mechanisms for the vast majority of employers who want to play by the rules to verify employment eligibility. I am Theresa Bertucci, as the Associate Director for the Enterprise Services Directorate of U.S. Citizenship and Immigration Services (USCIS), I am responsible for overseeing the E-Verify program and I welcome this opportunity to explain how the program works, as well as USCIS's efforts to increase its accuracy and efficiency, maintain its integrity, and expand its use.
E-Verify operates on the foundation that United States law prohibits employers from knowingly hiring or employing unauthorized aliens. E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. The program, formerly known as "Basic Pilot" or the "Employment Eligibility Verification System," is a fast, free, and easy-to-use Internet-based system that allows employers to electronically verify employment eligibility. The program compares employee information taken from the Employment Eligibility Verification Form (Form I-9) with more than 455 million Social Security Administration (SSA) records, more than 122 million Department of State passport records, and more than 80 million Department of Homeland Security (DHS) immigration records. Under federal law the program is voluntary for employers except for participation by federal agencies and the legislative branch. Many federal contractors also participate in E-Verify as a condition of contracts. E-Verify is available in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
I am pleased to report that the E-Verify Program has grown at a steady pace over the past several years. As of today, more than 246,000 employers are enrolled, representing more than 850,000 locations. More than 1,300 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007.
The volume of queries per fiscal year has increased from 3.27 million in FY 2007 to 16.4 million in FY 2010. In FY 2011 to date, employers have run more than 5.3 million queries. As of January 2011, federal contractors who use E-Verify total more than 33,000; 21,360 contractors indicate that they are covered by the Federal Acquisition Regulation (FAR) clause in their contracts requiring them to use E-Verify.
Despite this significant growth, it is important to put these numbers into context. There are approximately 7.7 million employers operating throughout our country, and the percentage of these employers that use E-Verify is just 11 percent.
The E-Verify program continues to improve its accuracy and ensure customer satisfaction though we acknowledge that we must do more. In its December 2010 report, the Government Accountability Office (GAO) reported a 5.4 percent decrease in E-Verify mismatches since FY 2007. FY 2010 statistics indicate 98.3 percent of employees were automatically confirmed as authorized to work either instantly or within 24 hours, requiring no employee or employer action. Similarly, in 2009 USCIS's independent evaluator published a study examining the overall accuracy of E-Verify in 2008 and found E-Verify was accurate 96 percent of the time, a significant improvement over earlier performance. The study also found that employers received from E-Verify a correct initial finding for authorized workers over 99 percent of the time.
Employers recently scored E-Verify 82 out of a possible 100 on the Customer Satisfaction Index in a 2010 American Customer Satisfaction Index Survey, well above the latest federal government satisfaction index of 69 percent. Fifty-nine percent of employers who responded self-identified as small business owners or employers. Other key findings of this survey revealed that the overwhelming majority of E-Verify users were likely to recommend E-Verify to other employers, were confident in the accuracy of E-Verify, and were likely to continue using the program.1
Of paramount concern to USCIS is making improvements to E-Verify to ensure that American workers are also protected while more and more employers use the program. USCIS has launched three initiatives to improve our efforts to protect workers, including increased collaboration with offices within DHS and other federal partners as well as expanded access to information about E-Verify for employees whose employers use it.
The E-Verify program has made great strides in becoming a faster, easier to use, and a more accurate tool. USCIS appreciates the Committee's strong support of E-Verify, and hope that any changes sought to the program will be considered as a part of comprehensive reform to our immigration laws that restores responsibility and accountability to the immigration system.
How E-Verify Works
To use E-Verify, employers must sign a Memorandum of Understanding with DHS, take the E-Verify tutorial, and pass a mastery test. After registering with E-Verify, employers can verify the employment authorization and identity of all newly hired employees within three business days of hire. Employers are not permitted to screen job applicants or verify the employment eligibility of pre-existing employees. There is one exception: federal contractors that have the FAR E-Verify clause in their contracts may elect to verify only new hires and existing employees working on a federal contract or they may verify their entire workforce.
Participation in E-Verify requires employers to enter information from the Form I-9 (Employment Eligibility Verification form), including the employee name, date of birth, Social Security number and citizenship status, and then submit a query. Within seconds, most employers receive a response regarding the work authorization status of the employee.
SSA Verification
For all new hires, E-Verify transmits, in a secure manner, the new hire's Social Security number, name, citizenship status, and date of birth to SSA, which compares the data to information contained in its NUMIDENT database. For those employees whose work authorization status can be verified automatically (i.e., employees whose information matches the SSA record and their citizenship status is confirmed), the process ends here with an "Employment Authorized" case result returned to the employer within seconds.
For the minority of cases when the SSA record does not match the data submitted by the employer, E-Verify issues a SSA TNC to the employer. When a SSA TNC is issued, the employer must notify the employee and give the employee the opportunity to contest the finding. The pre-populated Notice to Employee of Tentative Nonconfirmation provides the employee with important information and instructions related to the TNC and how to resolve it. This notice is available in English, Spanish and seven additional languages. To resolve the SSA TNC, the employee must visit an SSA field office, or in cases involving a citizenship information mismatch, may choose to call DHS as described further below.
If the employee chooses to contest the SSA TNC, he or she has eight federal government work days to visit an SSA field office to begin the process of resolving the TNC. When a discrepancy is resolved, SSA will update the information and E-Verify will issue an "employment authorized" response. Until the SSA TNC is resolved, the employee must be allowed to continue working and cannot be terminated or have any other adverse action taken against him or her because of the SSA TNC. If the employee fails to contact SSA within the eight-day period, E-Verify issues an "SSA Final Nonconfirmation." At this point, the employer may terminate the new employee. The employer must notify DHS if it continues to employ an employee after a final nonconfirmation. Currently, employees who believe the SSA Final Nonconfirmation was issued in error because they allege that they are work-authorized are directed to call the Verification Division's employee hotline. Employers of such employees may also call the Verification Division's customer service hotline in this instance.
DHS Verification
Certain cases for U.S. citizen2 and non-citizen workers do require an additional data check with DHS. If the information does not match DHS records, it is automatically referred for further verification within DHS. DHS will respond to most cases within 24 hours but has up to three days to either verify work authorization or issue a DHS TNC.
In addition, a photograph matching step may be prompted if an employee has presented an employer with a U.S. Passport, an Employment Authorization Document, or a Permanent Resident Card as proof of identity and employment authorization during the I-9 process. This step requires the employer to compare the electronic version of the photograph on the E-Verify screen with the photograph on the document the employee presented. If the photographs do not match - it must be the same photo, not just pictures of the same individual - the employer indicates "No" in E-Verify and the case will result in a DHS TNC. Although not part of the E-Verify system, Employers are also expected to compare the person presenting the document to the photo on the document when examining the document presented for the form I-9.
As with the SSA TNC process described above, if the employer receives a DHS TNC, the employer must notify the employee with the pre-populated Notice to Employee of Tentative Non-Confirmation and provide him or her with an opportunity to contest the finding. An employee has eight federal government work days to call a toll-free number (which provides support in ten different languages) to begin contesting a DHS TNC finding. Until the DHS TNC is resolved, the employer cannot take any adverse action against the employee, including termination or suspension, or a change in working conditions.
Once the necessary information from the employee has been received (typically through the employee's submission of documentation), USCIS personnel work to resolve the case, typically within three business days of receipt, by issuing either an "Employment Authorized" case result or a "DHS Final Nonconfirmation" case result. If the employee receives a DHS Final Nonconfirmation, the employer may terminate the new employee.
For all employees that have received a Final Nonconfirmation, the employer must notify DHS if it continues to employ an employee. Should the employer fail to notify DHS of the continued employment, the employer would be subject to civil penalties. As with an SSA Final Nonconfirmation, employees who believe the DHS Final Nonconfirmation was issued in error because they allege that they are work-authorized are directed to call the Verification Division's employee hotline. Employers of such employees may also call the Verification Division's customer service hotline in this instance.
Increasing E-Verify Accuracy and Efficiency
USCIS Has Taken Steps to Increase the Accuracy and Efficiency of E-Verify
In its December 2010 report, GAO recognized the steps USCIS has taken to improve the accuracy of E-Verify, including expanding the number of databases queried through E-Verify and instituting quality control procedures.
In FY 2008, USCIS added naturalization data to E-Verify and reduced by 35 percent the number of mismatches for naturalized citizens. Furthermore, USCIS established a process for employees who receive SSA mismatches related to their citizenship status; these employees can call USCIS and contest the finding rather than visit SSA. Between October 2009 and August 2010, almost 94 percent of employees who received a SSA TNC for a citizenship mismatch chose to call USCIS, thus reducing walk-ins to SSA field offices.
In February 2009, USCIS began incorporating passport data in the E-Verify system to further reduce mismatches for naturalized and derivative U.S. citizens and to combat identify fraud as described below. Because of this enhancement, in FY 2010 more than 81,000 queries that previously would have received an incorrect mismatch were automatically verified as employment authorized.
USCIS has improved the integrity of E-Verify by verifying the legitimacy of employers using the system. To ensure that companies that enroll in E-Verify are legal and active corporate entities, in June 2010 USCIS began using an independent information provider with a database of 177 million business records evidencing corporate status. USCIS plans to expand the use of commercial data to verify the legitimacy of employers enrolled prior to June 2010.
To increase accuracy and efficiency, USCIS has made enhancements to the E-Verify web interface. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. The new web interface includes such important features as:
- Automated reminders for employers when Employment Authorization Documents (EADs) are expiring;
- Enhanced security features, such as masking Social Security numbers, to further protect privacy;
- Streamlined tutorials for employers; and,
- Improved text and instructions to help employers avoid data entry errors.
USCIS has taken several steps to address mismatches related to inaccurate or inconsistent personal information in government databases. USCIS has included language in The Guide to Naturalization and the U.S. Citizenship Welcome Packet to inform individuals of the importance of updating their Social Security record, including citizenship status and any name changes. On its web site and in USCIS-produced videos, USCIS provides information and instructions on how to resolve name-related mismatches.
E-Verify's Accuracy Will Continue to Increase
USCIS has achieved success in increasing the accuracy of E-Verify and is dedicated to further system improvements.
Consistent with the GAO's recommendations, USCIS is currently working with an independent research firm to study the impact of name and date-of-birth mismatches on TNCs. This study, "Evaluation of the Accuracy of E-Verify Findings," will be completed in the third quarter of FY 2011. USCIS plans to use the findings from the study to develop better name-matching algorithms and provide enhanced assistance to users.
In the spring of 2011, USCIS plans to pilot the E-Verify "Self Check" process to provide workers with the opportunity to verify and correct their records. Self Check will be a free, web-based service that will allow individuals to check their work authorization status before they are hired and facilitate correction of potential errors in federal databases that provide input into the E-Verify process. If a mismatch occurs, the user will be notified of the mismatch and given directions on how to correct the issue (e.g., visit an SSA field office or contact DHS). To ensure that the correct person is accessing Self Check, users will be required to authenticate their identity by entering personal information and, subsequently, responding correctly to system-generated knowledge based questions. This identity assurance process is provided by a third party and is intended to prevent unauthorized access to an individual's records.
Maintaining the Integrity of E-Verify
An effective electronic employment authorization verification program protects authorized workers and provides employers with a tool to ensure a lawful workforce. However, to be effective, the program must also include robust tools to detect and deter employer and employee fraud and misuse, including discriminatory use of E-Verify.
USCIS Will Continue to Combat Identity Fraud
E-Verify is one tool the government uses to combat identity fraud. While E-Verify alone cannot detect all instances of identify fraud, USCIS is working to improve the program's ability to detect identity fraud and significant improvements already have been implemented.
To help combat identity fraud, USCIS has continued to expand the type of documents for which E-Verify provides biometric (i.e., photographic) confirmation. In September 2010, USCIS added U.S. Passport and U.S. Passport Card photographs to the E-Verify database. As with other photographic matching documents in the E-Verify database (Employment Authorization Documents and Permanent Resident Cards), the addition of U.S. Passport photographs allows the employer to compare the photograph displayed in E-Verify with the photograph on the employee's U.S. Passport.
The E-Verify program monitors the use of multiple identities and social security numbers, and USCIS is exploring ways to identify and lock these identities in cases where fraud likely exists to prevent future use in E-Verify.
USCIS Monitors Misuse of E-Verify and Has Increased Staffing Levels to Strengthen its Monitoring and Compliance Program
In 2007, USCIS established the Monitoring and Compliance Branch in 2007 to monitor E-Verify use to ensure employers are using the system properly. Then in June 2009, USCIS launched the Compliance Tracking and Management IT System that provides a secure means of tracking and managing incidents of suspected E-Verify user abuse, fraud, misuse, and discrimination.
USCIS uses algorithms to detect patterns of potential program misuse and takes appropriate action when instances of potential misuse are detected. For example, USCIS monitors and commences compliance actions in response to the following behaviors: multiple uses of a Social Security number; aberrant non-use of E-Verify; failure to contest TNCs; failure to verify within three days of hire, and impermissible verification of existing employees.
Since the Monitoring and Compliance Branch was created, it has issued 16,125 compliance letters and follow-up phone calls in response to potential system misuse. We have recently stepped up our efforts and have issued 7,461 compliance letters and follow-up phone calls in the first quarter of FY 2011. These follow-up letters and calls could lead to termination of E-Verify accounts or referrals to Immigration and Customs Enforcement (ICE) or the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
USCIS has increased its staffing dedicated to E-Verify monitoring and compliance. In FY 2011, USCIS is dedicating 80 staff in Lincoln, Nebraska to this program responsibility, in addition to the current staff of 35 in Buffalo, New York. The Lincoln staff will include analysts, customer support personnel, and individuals dedicated to public outreach.
USCIS works with ICE to ensure that employers comply with E-Verify rules and procedures. In December 2008, USCIS and ICE signed an agreement for sharing E-Verify program information. Under the agreement, USCIS may refer to ICE significant cases that involve misuse, abuse, or fraudulent use of E-Verify at critical infrastructure sites; violations regarding the employment of unauthorized aliens; continued employment of workers who have received Final Nonconfirmations; failure to use E-Verify for all employees; and other possible criminal activity. Under the agreement, USCIS provides E-Verify transaction data to ICE to support ICE investigations and ICE also shares significant data with USCIS from information discovered during I-9 audits of E-Verify employers.
Improvements Have Been Made to Protect Employee Rights
USCIS is deeply committed to ensuring that employees' rights are protected. In order to fulfill that commitment, USCIS works closely with the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and DHS's Office for Civil Rights and Civil Liberties (DHS CRCL).
Although USCIS' independent evaluator found that E-Verify participation reduces discrimination against foreign-born workers in the hiring process, the evaluation also identified a number of challenges, particularly those facing employees whose employers use E-Verify. Some employers that use E-Verify do not always follow program rules designed to protect the rights of U.S. citizens and work authorized aliens. This can lead participating employers to terminate, fail to hire, or otherwise take wrongful action against lawful workers.
To address these challenges, in March 2010, USCIS unveiled three initiatives designed to protect employees' rights. First, USCIS entered into a new agreement with OSC to streamline the process for addressing potential cases of discrimination and E-Verify misuse. The new agreement establishes protocols between USCIS and OSC for referring matters that fall within the agencies' respective jurisdictions. To date, OSC has referred 88 instances of suspected employer misuse or abuse to USCIS, and we have followed up in each of those instances were applicable.
Second, USCIS implemented a hotline for employees in April 2010 to provide them with better customer service. The hotline offers employees information about E-Verify and assistance in completing the Form I-9. Callers can also use the hotline to issue complaints about E-Verify misuse or discrimination. The hotline is primarily available in English and Spanish, but it is also accessible in 32 additional languages through interpretation services. OSC has a long established hotline for employees and has experienced an increase in calls related to E-Verify in recent years from both employees and employers.
Third, USCIS and DHS CRCL produced two new, educational training videos. The Employee Rights and Responsibilities video available in English and Spanish, emphasizes the rights of employees when employers use E-Verify. The video describes an employee's right to contest an initial mismatch without suffering any adverse job action, such as loss of pay or training, or termination or suspension. The video also provides important contact information for employees to obtain assistance and to file complaints alleging unlawful discrimination. The video also highlights the employee's responsibility to timely contact DHS or SSA to contest a TNC. The Employer Responsibilities and Workers Rights video, aimed at employers, makes clear the employer's responsibility to use E-Verify properly and in a non-discriminatory manner. The video highlights areas where potential problems may arise, including the issuance and resolution of initial mismatches.
USCIS and its federal partners provide additional resources to ensure employees are well-informed of their rights. USCIS, DHS CRCL, and OSC have developed brochures and posters to help employees better understand their rights and guide employers on their responsibilities when using E-Verify. These materials are available in nine foreign languages. USCIS provides TNC notices and referrals in eight foreign languages. Employers who use E-Verify are required to display an OSC poster that advises workers of their rights and provides OSC contact information.
Increasing the Use of E-Verify
The continued success of E-Verify, including the steady increase in its use, depends not only on enhancing its accuracy and efficiency as described above, but also on increasing public awareness of its significant benefits and ease of use.
Over the past two years USCIS has developed a robust customer service and outreach staff to ensure that the public's questions and issues are addressed quickly and professionally. In FY 2010, USCIS participated in more than 400 presentations, conferences, and live webinars about E-Verify. USCIS regularly places advertisements in English and Spanish about E-Verify in media markets across the country. USCIS works with the U.S. Small Business Administration (SBA) to improve outreach to small businesses by jointly conducting events, disseminating E-Verify materials to SBA stakeholders, and advertising in small business publications.
USCIS plans a more robust marketing and outreach effort in the coming months in order to increase the use of E-Verify.
GAO's Recent Report and Recommendations
GAO's December 2010 Report
GAO reviewed the progress that USCIS and SSA have made in the administration of the E-Verify program since GAO testified on the subject in June 2008. GAO examined, among other system issues, E-Verify's accuracy and vulnerability to fraud; USCIS's actions to address E-Verify's ability to monitor and ensure employer compliance with the program's policies and procedures; concerns about privacy and discrimination; and steps USCIS and SSA have taken to prepare for the possible implementation of a mandatory E-Verify system.
GAO found that, among other things, USCIS has (1) taken several steps to improve the accuracy of the E-Verify system, including expanding the number of databases queried through E-Verify and instituting quality control procedures; (2) taken steps to minimize the risks associated with the processing through E-Verify of new employees' personal information; (3) improved its ability to monitor and ensure employer compliance with E-Verify policies and procedures; and (4) along with SSA, taken actions to prepare for the possible implementation of a mandatory E-Verify system.
In addition to citing USCIS's success in reducing mismatch rates, ensure employer compliance, and establish better safeguards for employees' personal information, GAO identified challenges confronting E-Verify and proposed important recommendations to improve the system.
Addressing the GAO Recommendations
USCIS is encouraged by the GAO's findings and is focused on implementing GAO's recommendations as quickly and efficiently as possible. Some examples follow:
Resolving Erroneous TNCs: To help reduce name-related TNCs, USCIS is already working with an independent research firm to determine the impact of name and date-of-birth mismatches on TNCs. USCIS plans to use this research to develop better name- matching algorithms and provide better assistance to users. USCIS expects the study to be completed in the third quarter of FY 2011. USCIS has included information on The Guide to Naturalization and U.S. Citizenship Welcome Packet about the importance of updating personal information, including names, with SSA. USCIS also has provided information to employers about how to enter hyphenated names and complex surnames in the E-Verify system. USCIS has produced a video that informs employees of the most frequent reasons why name-related mismatches occur and provides guidance to employees on how to resolve name-related mismatches.
Improving Compliance Efforts, Including Employer Education: To ensure the USCIS education efforts are targeted most effectively and improve employer compliance with the E-Verify program, USCIS has began analyzing the results from the mastery test employers take when enrolling in E-Verify. This effort is designed to assess what questions may need to be revised and to determine what instructions and policies may require greater explanation. This analysis will be an ongoing effort, and USCIS will continue to monitor reports to determine improvements in future releases.
Enhancing Efficiencies to Better Allow Employees to Resolve TNCs: As described above, to ensure that employees have the ability to access and correct inconsistencies in personal information within DHS databases, USCIS plans to launch E-Verify Self Check in March 2011. Self Check will allow individuals to check their own work authorization status against SSA and DHS databases. For USCIS system inconsistencies, USCIS is currently piloting an initiative that will allow employees to make an appointment with a local USCIS office to have their records reviewed and updated if appropriate.
Improving the Accuracy of Government Data: To improve the accuracy of E-Verify data sources, USCIS has created a Database Integrity Unit that is tasked with identifying and facilitating the correction of erroneous information contained in DHS component databases. USCIS will continue to work with internal and external stakeholders to improve quality assurance with respect to source data that USCIS uses to determine employment authorization. In addition, DHS will continue to work closely with its component agencies to ensure that accurate information is transmitted or made available to the E-Verify program and that any inaccuracies in the various systems are corrected.
Decreasing the Potential for Recurrent Mismatches: USCIS is currently in the process of re-engineering its Status Verification System, which is used to track and manage TNCs so that status verifiers can document the basis for their work authorization decisions. The re-engineering is planned to occur in FY 2013. In the meantime, USCIS will implement procedures to address this concern through the use of a comment box and will update standard operating procedures to require this documentation by the end of the second quarter of FY 2011.
Ensuring Future Capacity to Administer Increased Use of E-Verify: The E-Verify program is well-equipped to handle continued expansion. 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. USCIS has invested in a dedicated information technology environment to transfer data from E-Verify to SSA to handle increased growth in query volume. To further help ensure continuous service in the future, USCIS expects to execute a service-level agreement with SSA in the near term. The service-level agreement will define the requirements for SSA to establish and maintain the capacity and availability of its system to support E-Verify.
Improving the Ability to Estimate E-Verify Cost and Resource Needs: To ensure that USCIS has a sound basis to make resource-related decisions about the E-Verify program, USCIS is in the final stages of completing a life cycle cost estimate that reflects the four characteristics that GAO identified as ensuring reliability and adherence to best practices, will be comprehensive, well-documented, accurate, and credible.
Considerations Relevant to the Increased Use of E-Verify
As described above, USCIS is dedicated to and fully engaged in the improvement of E-Verify so that its use can increase further. To achieve that goal on an ever-broadening scale, additional challenges must be met. For example, the E-Verify system is predicated on an employer's web browser access or, alternatively, an employer's ability to contract with a third-party provider who uses the E-Verify system for clients on a fee basis. The ability of some sectors of the market, such as some small businesses, to access the E-Verify system will need to be addressed.
As use of the E-Verify system increases and the status of more and more employees are verified, the federal agencies involved in the E-Verify program may need to expand their capacity to administer the daily query process to address allegations by new employees of errors or employer misuse. The increased use of E-Verify will also require USCIS to improve its information technology infrastructure.
Conclusion
USCIS is poised to meet the challenges that accompany the growth of E-Verify and the needs of the customers who use and will use the program to ensure the employment eligibility of their workforce.
On behalf of USCIS Director Alejandro Mayorkas and all of our colleagues at USCIS, we appreciate Congress's continued strong support of the E-Verify program.
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1It is noteworthy that E-Verify is often deemed to have erred when a new hire receives a TNC and is subsequently determined to be work authorized. Yet, the TNC may have been caused by a variety of reasons independent of E-Verify's accuracy. For example, through no fault of E-Verify, various errors - from employer typos to employees incorrectly filling out the Form I-9- may lead to a TNC. In addition, an employee who neglected to update his or her SSA records upon changing his or her name after marriage could receive a TNC even though he or she is work authorized. More generally, although our goal is to minimize TNCs of work authorized employees, it bears noting that the E-Verify process was designed as a two-step one precisely so that initial TNC data mismatches would not result in inaccurate final verification.
2TNCs related to passport data require DHS action. TNCs based upon a citizenship mismatch at SSA may also be resolved by DHS.