Franken looks to restrain e-Verify errors in immigration reform

WASHINGTON — Of the 300-some amendments Senate Judiciary Committee members have offered to the immigration reform bill, 18 were from Minnesota’s senators. A handful of those, from Sen. Al Franken, focused on one of the key components of the legislation, the expansion of the federal government’s e-Verify program.

Under the reform package, the often-voluntary e-Verify program is converted, slowly, to a mandatory program for most every business in the United States. So, assuming passage, something only 7 percent of employers use today could end up roping in nearly every employee in the United States several years down the road.

Activists, especially those who support immigration reform but are looking to improve on the current bill, have a host of concerns with such a sweeping expansion, worrying about everything from privacy problems to government overreach, but especially implementation issues and effectiveness. To that end, Franken is pushing an amendment to delay implementation for small employers unless the government keeps e-Verify mix-ups to a minimum.

“It requires every employer in the nation to use an electronic verification system, e-Verify, to make sure that their new hires are legal,” Franken said in April. “But the system isn’t ready for primetime.”

What is e-Verify?

The government launched e-Verify in the 1990s with a simple goal: Collect the legal employment status for every worker in America, allow employers to tap into an automated system and make sure new hires are authorized to work.

In its infancy, e-Verify didn’t work too well, Jessica Vaughn, director of policy studies at the Center for Immigration Studies, said. It didn’t include enough documentation to confirm many workers’ employment eligibility, so the system returned far too many inaccurate “non-confirmations,” or initial denials.

As e-Verify grew, it moved online and began checking work status against more thorough documentation, Vaughn said, and today, a vast majority of queries come back accurately.

“It most definitely has fulfilled its potential for creating an easy-to-use system that employers can rely on,” Vaughn said. “The biggest weakness of the e-Verify system is that it’s voluntary.”

.26 percent come back incorrect

Indeed, only about 409,000 of a possible 6 million employers use the system, mostly because the rules that require its use are a patchwork of laws passed by individual states. (In Minnesota, only certain public contractors are required to use the system. An expired Tim Pawlenty-era executive order required it for all executive branch employees as well, but it’s voluntary for everyone else.)

But that small sample size only exacerbates the few errors the system makes, and reformers say that foreshadows broader problems once e-Verify is mandatory.

“The reality is, with e-Verify, there is an error rate,” National Immigration Law Center policy attorney Emily Tulli said. “Folks who are U.S. citizens and work-authorized, the system deems them unauthorized.”

That was the case about .26 percent of the time (out of 20 million searches) in 2011, according to the Citizenship and Immigration Services office. When a false result like that occurs, many workers need to go to a Social Security Administration office and work out the kinks in person.

But, complicating matters for immigration reform purposes, studies show that foreign-born workers are 20-times more likely to receive incorrect results than those born in the United States. Reformers warn that could mean a sea of incorrect non-confirmations when both the system is mandatory for all employers and there are some 11 million currently undocumented workers made legal under immigration reform.

While big companies with developed human resources offices are equipped to deal with occasional e-Verify errors, Franken said they tend to scare away would-be e-Verify users like farmers, many of whom hire immigrant workers.

“A high percentage of dairy employees are not being verified with e-Verify right now,” said Minnesota Milk Producers Association president Pat Lunemann, who said his employment attorney has advised him and his fellow farmers against using the system until the errors are fixed.

Franken measure could come Thursday

To protect small employers against those errors, Franken has proposed an amendment that would allow businesses with 14 or fewer employees to skip the mandated e-Verify system if the government can’t keep the error rate below its current level (.26 percent) at the time of implementation. The measure, which Franken introduced with Utah Republican Sen. Mike Lee, could get a vote in the Judiciary Committee as early as Thursday, his office said.

“Maybe there can be a compromise in just saying, OK this will kick in for small businesses but only after e-Verify becomes a better system,” Franken said in April. “We have a system … where they wrongly reject a legal worker once every 140 times. That’s just too often. If you had a car with the same error rate, it would break down several times a year.”

Reform supporters say the proposal has merit. Tulli said her group support it, and ACLU legislative counsel Chris Calabrese said the measure would apply “important pressure” on the federal government to keep the error rate down as the program expands.

“I think we can all imagine a giant list 300 million names long and have a pretty clear understanding that not everything is going to be right,” he said. (The ACLU also has civil liberty concerns with the bill’s e-Verify provisions, calling it establishes “essentially a right to work list.”)

In a way, mandating e-Verify at all shows the complexities in trying to craft an immigration reform bill that pleases everybody. While pro-reform groups like the ACLU and Tulli’s NILC might back amendments like Franken’s, they would prefer there be no e-Verify mandate at all. More conservative groups, like the Center for Immigration Studies, think the bill actually takes too long to implement it universally.

“We have a system that is ready now and should be put in place before any mass legalization system,” CIS’s Vaughn said. “The Gang of Eight is delaying improvements until we get to perfect, when we have a very group program now.”

Lunemann, of the Milk Producers Association, said that in exchange for asking farmers and small businesses to comply with a system like e-Verify, the government should at least make sure the errors are kept to a minimum.

“If we have full, comprehensive immigration reform, then I think e-Verify, as it’s phased in, will be OK, but the government needs to fix the system,” he said.

Devin Henry can be reached at dhenry@minnpost.com. Follow him on Twitter: @dhenry