E‑Verify is the supposed silver-bullet of immigration enforcement. Despite its serious and unsolvable problems, the House Judiciary Committee was going to have a markup today on the Legal Workforce Act (LWA) that would mandate E‑Verify for all new hires in the United States. Although they canceled the markup at the last moment, this is still a wonderful opportunity to explore the main reason why E‑Verify is ineffective: employers ignore it.

E‑Verify is a government system whereby employers enter the identity information of new hires via an online portal. The system compares these data with information held in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases. The employee is work authorized if the databases decide that the data are valid. A flag raised by either database returns a “tentative non-confirmation,” requiring the employee and employer to sort out whatever error has been flagged. If the employee and employer cannot sort out the errors then the employer must terminate the new employee through a “final non-confirmation.”

The states of Alabama, Arizona, Mississippi, and South Carolina have mandated E‑Verify for all new hires in their states. Arizona was the first to mandate it on January 1, 2008, South Carolina mandated it on July 1, 2010, Mississippi on July 1, 2011, and Alabama on April 1, 2012. In those four states, the law demands that every employer must run every new hire’s identity information through the E‑Verify system. The response to a Freedom of Information Act (FOIA) request filed by Cato shows that there are far fewer E‑Verify cases or queries than there are new hires in these states, which means less than 100 percent of new hires are actually being run through the system (Table 1).

Table 1

Percentage of New Hires Run Through E‑Verify by State

Sources: Author’s Calculations of Longitudinal Employer-Household Dynamics of the U.S. Census and Cato FOIA.

The number of E‑Verify cases does differ somewhat per year compared to older data but the conclusion is similar: Only 57.6 percent of all new hires were run through E‑Verify in 2015 in states where 100 percent of all new hires were supposed to be verified. The best-performing state was Arizona, which saw marked increases in E‑Verify usage since its 2008 implementation. In 2014, Arizona had about 1.9 times as many illegal immigrants as Alabama, Mississippi, and South Carolina combined.

At the very minimum, E‑Verify cannot be effective if employers do not use it. And it’s no wonder so many employers ignore E‑Verify as it comes with a 17-page memorandum of understanding and 139-page User Manual that employers must understand in order to run the program properly. Few people who are trying to run a business want to take the time to master the details of this complex government system just so they can hire somebody. Even if employers do take the time to master E‑Verify, it does not provide a safe harbor from future government audits, as employers across the country have discovered. The 2006 immigration raid of Swift & Company, a Colorado-based meatpacker, found that 10 percent of the firm’s workforce were illegal immigrants even though Swift had used E‑Verify since 1998. If E‑Verify doesn’t work when it’s used, employers aren’t protected when the system makes errors, and they can still be punished when they rely on that system, the real question is why would any employer would actually use it?

Increasing E‑Verify compliance would require worksite visits and remote audits, just like the current I‑9 system. If Arizona, Alabama, Mississippi, and South Carolina cannot assure better than 73.6 percent compliance with E‑Verify—all states with large political constituencies that demand immigration enforcement—how well will a nation-wide mandate fare in states that don’t have such constituencies? Not well. 

The low E‑Verify compliance rate in states that have mandated the system indicates that it will fail to demagnetize the wage magnet if Congress ever mandates the LWA or a similar piece of legislation nationally. At that point, policymakers will demand more expensive and intrusive methods to guarantee that employers hire only legal workers, such as a biometric identity card. The major problems with E‑Verify are economic, not technical. E‑Verify has many serious problems but the low compliance rates should dampen enthusiasm among its supporters.