E-Verify Is Not Perfect | I-9 Okay Blog

E-Verify Can’t Detect All Illegal Workers – What a Surprise…

The New York Times reported last week that E-Verify cannot detect a person using documents belonging to someone else. There was an immediate outcry from the usual suspects about the travesty of E-Verify. Anyone who is familiar with E-Verify and has any ability to use reason shouldn’t be shocked. The system has limitations, it has always had limitations, and going into the future, I’m sure it will continue to have certain limitations.

It should be fairly obvious if a person has stolen the identity of someone who is authorized to work in the United States and has altered the documents to appear as though they belong to the person being hired, E-Verify will not be able to detect the error unless the photo-match feature is activated. It doesn’t take a rocket scientist to figure out how to use documents that won’t trigger the photo-match tool in E-Verify.

The question is, should we throw out the baby with the bath water and scrap the whole E-Verify system? The truth is that E-Verify is still the best tool currently available to help employers verify the identity and work eligibility of the people they are hiring. It is required for most employers who have contracts with the Federal government. Many states also require its use.

Work Eligibility and Document Verification

Employers must understand that the law requires they make a good faith effort to verify the identity and the work eligibility of every person they hire – period. The law does not require an employer be a forensic document expert so as to be able to identify any fraudulent document no matter how the document appears when presented by the employee. In fact, when the employer signs the certification on the Form I-9, he/she is attesting that “…the document(s) appear to be genuine and to relate to the employee named….”

As an employer, the very best way to develop a good faith defense concerning I 9 compliance is to accurately complete the Form I-9 for every person hired. As part of the Form I-9 process, the employer must inspect the documents presented by the employee, record the document information in the lists in Section 2 of the I-9 form, and sign the certification attesting to the inspection of those documents.

At this time, there is no one good source for viewing “sample” documents so that an employer may compare what they are accepting with what a “real document” looks like. There are a few resources available however, there have been so many versions of documents issued, it is unreasonable to believe most hiring managers would be able to spot a sophisticated fake document.

A Good Faith Defense in Case of an I 9 Audit

When Immigration and Customs Enforcement (ICE) conducts an I 9 audit, the employer must be able to prove they took the necessary steps to fulfill their responsibility to verify the identity and work eligibility of every person they hire. If an employer can prove they have done that, they should have a good faith defense against penalties for hiring undocumented workers.

The very best way to prove a good faith defense is to complete the entire Form I-9 process completely. Unfortunately, most employers fall well short of I 9 compliance and will not be able to enjoy the good faith defense allowed under the law.

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