E-Verify is an online system that’s supposed to prevent illegal aliens from getting hired. Even though it’s voluntary for employers, it has shown itself to be quite effective. But recent high-profile failures, including the hiring of an illegal alien as a police officer in Maine, have raised questions about the system.
The problem turns out to be not E-Verify but identity theft. And Congress can fix it.
Congress created E-Verify in 1996 to give employers a reliable method of checking the work authorization of new employees. The widespread availability of fraudulent documents had thoroughly undermined the Immigration Reform and Control Act of 1986’s purely paper-based “I-9” process, requiring employers to check the identity and work-authorization documents of new hires.
While still largely voluntary, E-Verify has grown dramatically, verifying over 43 million employees last year. And it has been highly successful, denying employment to 849,914 aliens not authorized to work in the past four years. When E-Verify is mandatory, it “can have very large deterrent effects on the employment of undocumented immigrants,” as an economist with the Federal Reserve Bank of Dallas has concluded.
But despite its success, there have been periodic reports of E-Verify giving the green light to illegal immigrants and others (such as tourists) who don’t have the right to work. This summer, Immigration and Customs Enforcement officers arrested illegal aliens working at a Nebraska meatpacking plant, and a police department in Maine hired an illegal alien as a police officer, in both cases, after E-Verify gave the go-ahead.
At its core, E-Verify compares Social Security numbers against government records to flag employees providing fictitious numbers. But, as the consulting firm Westat concluded, new hires “may borrow documents belonging to relatives or friends, use stolen documents, or purchase valid documents that have been sold by the owner,” and “E-Verify cannot identify these documents as fraudulent since they are, in fact, genuine.”
As a congressional staffer, I drafted E-Verify’s legislative text in 1996, and I can certify that it was not designed to be impervious to identity theft. In fact, E-Verify would never have been enacted in the first place had it been so designed. For only a biometric national ID card, if even that, can make E-Verify completely identity-theft-proof. And a national ID card is a political third rail in American politics.
In 1996, E-Verify was almost killed in the House Judiciary Committee, largely over “national ID” concerns. Then-Rep. Esteban Torres (D-CA) summed up these fears on the House floor, alleging that E-Verify was “only the first step … the nose under the tent towards a national identification card, a first step towards the loss of our freedom.”
Given this political reality, what can be done to strengthen E-Verify’s defenses against identity theft? Tool No. 1 is “photo-matching,” which, in the words of the U.S. Citizenship and Immigration Services, “allows the employer to match the photo on an employee’s document with the photo in USCIS records.” This empowers employers to flag fake and altered documents and prevents illegal aliens from using borrowed/stolen Social Security numbers to fool E-Verify.
Since 2007, E-Verify has featured such a “Photo Screening Tool,” but only for select U.S. government documents: employment authorization cards (work permits), permanent resident cards (green cards), and passports. But, according to the Department of Homeland Security’s Inspector General, the majority of new employees present driver’s licenses to prove identity. In 2021, the IG acknowledged that USCIS, on its own, “cannot mandate states to provide driver’s license data/photos”, but it encouraged the organization “to engage with states to explore the possibility.” However, “engagement” will not work with sanctuary states such as New York, which has enacted a law that forbids sharing Department of Motor Vehicle photos with DHS.
Thus, the single most effective step that Congress can take is to require states to grant DHS access to their DMV photos. For even if illegal immigrants obtain valid Social Security numbers, they would find it extremely hard to provide employers with photo IDs matching those provided by DMVs. Further, even when photo-matching is now used as part of E-Verify, USCIS directs employers to “compare the photo displayed in E-Verify with the photo on the employee’s document, not with the actual employee.” The House Judiciary Committee quite correctly called this “nonsensical if the goal is to actually prevent identity theft.” Congress should additionally require that employers using E-Verify compare the photos on employee-provided documents with the new employees’ actual faces.
CHICAGO POLICE REFUSED TO TURN OVER 92% OF ILLEGAL IMMIGRANTS TO ICE UNDER TRUMP
Would such a requirement be constitutional under the Supreme Court’s 10th Amendment “commandeering” doctrine, which limits the federal government’s power to tell states what to do? Very likely, yes. The court has never actually ruled whether requiring states to provide mere information constitutes commandeering, but it has concluded, in a case involving state DMV records, that the federal government “regulates the States as the owners of data bases”.
Congress could deal a major blow to ID theft and illegal immigration by requiring states to provide DHS access to DMV photos and employers to compare these photos to the actual faces of employees.
George Fishman is a Senior Legal Fellow at the Center for Immigration Studies.