Under the Immigration and Nationality Act, it is unlawful for an employer to knowingly hire or continue to employ an alien who is not authorized to work in the United States. The Immigration Reform and Control Act of 1986 requires employers to examine up to 29 different documents presented by new hires to verify identity and work eligibility, and to attest to the examination on the Form I-9.
Employers may also elect to participate in an electronic employment eligibility verification system, known as E-Verify. Participants in E-Verify verify employment authorization of new hires through Social Security and Department of Homeland Security databases. Currently, only 85,000 of 7 million U.S. employers participate in E-Verify. The program was set to expire in November 2009, but has been temporarily extended by Congress.
The current employment verification system is an inherently subjective and ultimately insecure process, as sophisticated fraudulent documents are easily acquired, allowing an unauthorized worker to obtain employment. E-Verify still relies on paper documentation, thus the program’s accuracy is undermined by the proliferation of fraudulent ID’s, as it cannot verify the authenticity of the documents.
In June of 2008, then-President George W. Bush issued an Executive Order and accompanying proposed regulations requiring federal contractors to use the E-Verify program for any new employees hired during the contract term by the contractor and any other employee assigned to work on the contract. At least a dozen states have also enacted laws or regulations requiring state contractors to use E-Verify. For example, Arizona and Mississippi are two states that now require all employers to sign-up and use the system.
Recognizing that E-Verify (at least in its current form) has its shortcomings, SHRM has been advocating in Congress for the adoption of the New Employee Verification Act (H.R. 2028) which, if enacted into law, would greatly enhance the employment verification process for HR professionals by tackling the real problem of identity theft in the hiring process.