Last week, President Trump announced that his immigration plan would not mandate that employers use E‑Verify, the employment verification system that checks new employees against government databases. While the president felt it was too “tough” on illegal workers, he is wrong. Nearly all illegal workers passed the system last year. In reality, E‑Verify is tough on legal workers who have had nearly 760,000 jobs held up by the system since 2006.

How many legal workers E‑Verify has harmed

Employers who use E‑Verify enter the names, dates of birth, and Social Security Numbers (or alien ID numbers) that employees provide on their Form I‑9 into the system. E‑Verify then checks this information against government databases at the Department of Homeland Security (DHS) and the Social Security Administration (SSA). If the information the employer entered fails to match the government’s information, the system issues a “Tentative Non-Confirmation” (TNC).

Legal workers can contest a TNC at an SSA or DHS office within eight business days of receiving the error. If they fail to contest, cannot do so in time, or are unable to provide adequate evidence of their identity and U.S. citizenship, E‑Verify will send their employer a “Final Non-Confirmation” (FNC). FNCs require the business to fire the employee or face civil or criminal penalties for hiring someone without authorization to work in the United States.

Figure 1 shows the number of TNCs and FNCs that legal workers have received from FY 2006 to FY 2019 (annualized based on 6 months). As it shows, the error rate has improved dramatically since 2006—falling from 1.9 percent to less than 0.2 percent—but because far more employers are using the system, the number of errors has increased. Overall, from October 2005 to March 2019, E‑Verify has returned TNCs to an estimated 759,615 legal workers, including an estimated 179,103 who received FNCs that cost them a job.

The government reports the share of TNCs that legal workers successfully challenge each year. In a government-commissioned report, the organization Westat estimated that 6.3 percent of all FNCs in 2009 went to legal workers. It has not estimated the share for other years, but this analysis assumes that the FNC error rate tracks the TNC rate such that FNC accuracy will reflect changes in TNC accuracy. This assumption makes sense because a legal worker must first receive a TNC to then receive an FNC.

Why E‑Verify errors happen

According to Westat, legal workers can receive TNCs for a variety of reasons. Most commonly, it is as simple as the employer or the government entering their names incorrectly into the databases. People who change their names or have hyphenated names are much more likely to be victims of typos from employers or government agencies, triggering wrongful TNCs in E‑Verify.

FNC errors mainly come from employers not informing their employees about the negative result. Some businesses might not fully understand the system and confuse a TNC for an FNC, firing the worker based on a preliminary result, or they might just not want to deal with the hassle of potentially having to lay off a worker after a months-long challenge. Westat concluded about 83 percent of FNC errors came from employers sitting on the TNC info.

The other 17 percent came from employees choosing not to come into DHS or SSA offices to contest. The problem for the employee is that even if they find out about the TNC from their employer, they must challenge the error within eight days without knowing exactly what the problem might be. In many cases, it can take months and many trips to the DHS or SSA offices to sort out.

Ken Nagel, a business owner in Arizona, explained that E‑Verify actually flunked his own daughter. Another Arizona resident, Juan Carlos, was flagged because no one told the Social Security Administration he became a U.S. citizen. He paid $400 to get a new naturalization certificate to prove his innocence and keep the job that E‑Verify was ready to fire him from. Numerous other cases of U.S. citizens who have lost their jobs or had to fight the government to keep them are known.

An employer mandate would make the situation much worse

In 2018, only about 37.6 million of the more than 100 million new hires went through the E‑Verify system. If every employer used E‑Verify, the number of legal workers receiving errors would explode to a projected 200,000 annually or 2 million over a decade based on E‑Verify’s current error rate. This would include more than 32,000 legal workers who would receive FNCs and lose out on their jobs completely each and every year.

Even on its own measure of success—ending illegal employment—E‑Verify fails miserably. In 2018, E‑Verify confirmed 86 percent of illegal hires. While proponents see the 14 percent who don’t get confirmed as worth it, they ignore entirely the cost: the tens of thousands of legal workers who suffer. Americans should not need to “prove their innocence” to get a job. The government has the responsibility to prove guilt. E‑Verify cuts against this fundamental principle, and it undermines the rights of every American. Trump was right to reject the system, even if he did so for the wrong reasons.