On January 4, 2011, Republican Gov. Rick Scott of Florida issued executive order No. 11-02, which effective immediately, directs Florida state agencies under his direction and any contractors or subcontractors with those agencies to use E-Verify to check the work authorization of all present and future employees. Governor Scott’s order was issued, in part, to fulfill a campaign promise that would “require all Florida employers to use the free E-Verify system to ensure that their workers are legal.” However, on January 4, the governor’s campaign promise fell short of making E-Verify mandatory for all employers. It still remains possible that Governor Scott could attempt to make E-Verify mandatory, especially if the Arizona law is held to be constitutional.
E-Verify is the free Internet-based system administered by the U.S. Department of Homeland Security’s Bureau of Citizenship and Immigration Services (“USCIS”) that uses Social Security Administration (“SSA”) data to verify an individual’s work authorization. However, in order for E-Verify to conduct its check, employers must draw information from Form I-9, Employment Eligibility Verification.
According to the U.S. Department of Homeland Security, more than 240,000 businesses nationwide and over 10,000 in Florida have signed up for E-Verify. But E-Verify appears to present some challenges. According to recent federal reports, the program is unable to detect unauthorized workers more than half the time (54%) because its antifraud devices, which appear to be practically nonexistent, cannot detect identity theft. Moreover, a report issued by the U.S. Government Accountability Office (“GAO”) indicates that inaccuracies and inconsistencies in recording employees’ names will continue to produce erroneous Tentative Nonconfirmations (“TNCs”). According to USCIS, of 22,512 TNCs resulting from name mismatches in fiscal year 2009, approximately 76 percent, or 17,098 TNCs, were for citizens, and approximately 24 percent, or 5,414 TNCs, were for noncitizens. In Rhode Island, for example, E-Verify was so conflict-ridden that incoming Governor Lincoln Chafee terminated it the day after Governor Scott issued the order to adopt it.
There is an increased emphasis on employer compliance under the Obama administration. With employers facing such a multitude of potential penalties and sanctions, employers may want to consider taking proactive steps, such as putting their I-9 compliance “houses” in order and not delaying the auditing of their I-9 forms. Even further, at a recent IMAGE signing ceremony, John Morton, assistant secretary of Homeland Security for U.S. Immigration and Customs Enforcement (“ICE”), announced the creation of an employment compliance inspection center in Arlington, Va. The center will house 15 new I-9 auditors who will help field offices around the country to expedite Form I-9 audits. At the signing, Morton said, “Many of our regional offices or our local offices simply don’t have the manpower to conduct that kind of inspection or investigation” to audit US employers and that the new center will “ensure us to have the capacity to do a lot of large-scale audits.” Unless the Republicans win the next presidential election (so far, President Obama is holding at 53% approval rating, according to CNN), the Obama administration shall continue targeting employers for I-9 compliance. The creation of such a center, dedicated exclusively to I-9 audits, is unprecedented and indicative that compliance will not only continue, but also is likely to increase.
Posted by Hector Chichoni
@ January 26, 2011 01:57 PM EST