We Are Going to be E-Verified

E-Verify-sm.jpgYesterday we all got the following university-wide message from the Chair of the Faculty Senate (who happens to be a law school colleague):

Colleagues:

I’m writing to alert you to the importance of participating in the upcoming “E-Verify” compliance program. Fortunately, for the vast majority of us, it will be merely a nuisance. For a few, it is likely to be much worse.

In order to comply with the requirements of Federal law and Homeland Security regulations, every employee (unless hired before November 6, 1986) must complete the process, which will begin in January.

1. The University will send you information on how to log in to an electronic version of Form I-9. It should only take a few minutes to complete the form.

2. Thereafter, you will need to contact the HR representative assigned to your school or department, and present appropriate documentation. [HR will send out an e-mail shortly that lists the documentation you will need.]

3. The information submitted is then transmitted to the government for verification. If the information submitted matches federal records, the process is over.

4. If the information submitted does not match federal records — and according to press accounts, there are many flaws in the government’s data base — you have to start the process of resolving any mismatched information within eight “federal working days.” The administration will provide you information at the time with respect to the agency or agencies that must be contacted.

By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]

What you can do to minimize problems:

  • If you are a US citizen, find your US passport, which is by far the easiest way to prove you have the right to work, and bring it up to date if necessary. If you don’t have a passport, obtain your birth certificate or Social Security card, and make sure your driver’s license or other government-issued photo ID is valid.
  • If you aren’t a U.S. citizen, make sure your relevant “green card” or visa paperwork is up to date and in your possession.
  • Let your Department Chair or your Dean know if you are going to have an extended absence during January, e.g. away doing research, visiting at another university, on sabbatical, etc.

We would worry about anyone who did not find this process at least a little bit irritating. The government’s rules, which may be OK for a typical workplace, are wholly out of tune with the way a university operates. Fortunately, from our conversations with the University administration, it is clear they are working hard to make the best of a bad situation.

We’ll try to deal with any concerns you may have. But the real experts are Bill Tallman, (305) 284-3386, [email redacted] for Coral Gables/Marine Campuses or Elizabeth Coker, (305) 243-6551 [email redacted] for Miller School of Medicine. They have told us they would be happy to answer any questions or help deal with any problems you may have.

Best regards for the Holiday season,

Rick Williamson
Chair, Faculty Senate

For most employers the e-verify program is both optional and limited to new hires— but employers who are federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, are required to participate and to check all but their post-Nov, 1986 hires. (A date that I imagine has something to do with the effective date of the Immigration Reform and Control Act of 1986 (IRCA).) Our med school is getting some ARRA money; the University has got substantial federal funds covered by the FAR as well. So we are all swept in to the giant employee database. Except that we didn't have to be.

The University's position is somewhat more self-serving than it seems. The University did have a choice. It could either subject us all to E-Verify, or it could have availed itself of the exception available to universities, and only subject to E-Verify those members of the faculty and staff who work on covered contracts and grants.

That's right: the University is NOT required by law to make us all go through this procedure, see 48 CFR § 22.1802 (b)(2)(i), 73 Fed. Reg. 67704 (Nov. 14, 2008) (“the contractor may choose to verify only new hires assigned to the contract if the contractor is— (i) An institution of higher education (as defined at 20 U.S.C. 1001(a));”), although it is true that once the University elects to do the whole staff we as employees have no choice in the matter.

The problem from the University's point of view is that there are a lot of people working on covered projects (especially in the Med School), the University's obligations are ongoing, and the cast of characters involved in covered projects is constantly shifting. Administratively, it is simpler and cheaper for the University to do everyone now, and as they are hired in the future, then it would be to track people every time in order to confirm their eligibility every time they get involved in a government-sponsored research project.

So, once the University has elected not to avail itself of the exception for institutions of higher education, we are caught by the rule about stopping our paychecks unless you comply:

If the information submitted does not match federal records — and according to press accounts, there are many flaws in the government’s data base — you have to start the process of resolving any mismatched information within eight “federal working days.” …

By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]

This is unsavory in principle, and probably in practice too. And the practice matters. Just how cross we should be about the University's decision to put institutional convenience (and budget) ahead of its empoloyees' convenience (and in some cases budget) depends in large part on how well or badly the E-verify system works, and on how many people end up being unjustly put on involuntary leave without pay while their paperwork is sorted out. My guess is that snafus are almost inevitable, especially in the early days of the system. It will be up to the University to take care of any people caught in a bureaucratic trap at least partly of the University's making.

At least you only have to start the appeals process in eight days — I doubt it would be possible to end it that quickly in many cases.

[Is the emplyoment right the sort of right that a person wrongly denied a salary as a result of this government action under E-Verify could claim was a 5th Amendment “taking”? If the employee provided the right evidence but it was ignored, would that not be a Due Process violation? I think it would. The more difficult questions is whether it would it be an actionable violation under the current highly narrowed Bivens jurispredence of the Supreme Court. Maybe not — and if so, this serves as a further demonstratation of just how flawed that jurisprudence has become.]

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9 Responses to We Are Going to be E-Verified

  1. Vic says:

    That IS a shame…Expecting professors to live like the rest of us commoners! The mind reels yet again.

    But take heart: This kind of thing will never happen when Government has its fingers in your healthcare decisions. (Not that that would potentially be life or death, or anything important like tenure).

  2. michael says:

    But in fact, at present most workers do not work in firms that are required to use E-verify, so what we are getting is *different* from what most people get.

    Incidentally, I don’t know who your insurance company is, but this health insurance one area where the government will have to work really really hard to outdo the private sector in mistreating people. Consider, for only the most recent example insurance companies denying coverage to rape victims.

    That’s why the Obama plan’s insistence that private insurers (with their high overheads and hard hearts) be the conduits for millions of soon-to-be-mandated customers is so very troubling.

  3. Brittancus says:

    THE BATTLE OF ALL POLITICAL BATTLES IS ABOUT TO COMMENCE.

    If Internet blogger’s, the national and rural newspaper comments, forums or bulletin boards, are a national grading of passing Comprehensive Immigration Reform–FORGET IT! IT JUST ISN’T GOING TO HAPPEN! I follow the commentaries very carefully and my observation show a very negative response to any new law that indicates giving the 20 to 30 million illegal immigrants a more or less free passport to the road of citizenship. We don’t have to forcibly deport, as E-Verify is the computer ideally suited to eject foreign labor from the all working locations? IT WORKS! It’s success rate is climbing even higher, as its continually modified. Under normal circumstances it would be an impossibility to pass any AMNESTY? But when the headlines scream that 15 million irate Americans and legal residents cannot find employment, the chances of giving another AMNESTY, is impossible–and absolutely, incredulous that they would even try?

    Advancing this insane reform law under the noses of middle class Americans is going to be a expiration of Sen. Harry Reid (D-NV), Speaker Pelosi, Napolitano and a whole mis-match of Democrats who are thinking they will be re-elected. Rep. Luis Gutierrez (D-Ill.) champion of his government in Mexico and throughout Central and South America will–NOT–survive his incumbent election. No tourist or student overstays are equally unwelcome in this nation of laws. CALL ALL YOUR SENATORS AND EVEN CONGRESSMEN/ WOMEN. NOW and urge them–NOT–to support COMPREHENSIVE IMMIGRATION REFORM. IT’S NOT NEEDED? THE ! THE 1986 IMMIGRATION REFORM BILL WAS NEVER, EVER ENFORCED. The Capitol Switchboard’s telephone number is 202-224-3121. REMEMBER TO SEND IN YOUR 28Cent POSTCARDS NOW! WE MUST DEFEAT THIS IMMIGRATION REFORM PACKAGE.

    There must be heavy consequences to illegally settling here, such as upgrading the unauthorized entry to a felony. In the future we must have an orderly immigration recruitment system, but only for people with highly skilled qualifications. Guest Workers must be equally vetted and not just given permission without strict–return instructions home, after completing their contract. No family reunification, because this has been rife with fraud as sponsors end up reneging on the financial aspect. All this issues can easily be resolved with amendment to the 1986 immigration bill. What to do with 20 to 30 million illegal aliens from across the world, slowly repatriate them using the SAVE ACT. We are unable to afford the costs attributed to illegal immigration. Learning in the Sanctuary State of California has collapsed from the massive surge of illegal foreign nationals into the school system.

    Observe CNN TV documentary this week, “California in Crisis” The state may still implode under the huge burden of supporting financially the illegal aliens with large families. Unrevealed billions of dollars are skimmed from state treasuries, to pay for the immigrants that cannot sustain themselves around this nation. The demented politicians in Sacramento are already talking about raising taxes. No state remains untouched by the unparalleled invasion of this great sovereign country.Understand the immigration enforcement gradings of your politicians at NUMBERSUSA. Understand how taxpayers have been taken for a ride for decades and the unrevealed costs to you. See what JUDICIAL WATCH has to say about CORRUPTION in WASHINGTON. IF AMNESTY PASSES WE ARE JUST A SHORT INTERLUDE FROM OVERPOPULATION AND A THIRD WORLD COUNTRY EXISTENCE.

  4. michael says:

    And there I was wondering who should win the prize for ‘most gonzo comment of the year’….

  5. steve says:

    If the employee provided the right evidence but it was ignored, would that not be a Due Process violation? I think it would. The more difficult questions is whether it would it be an actionable violation [….]

    Michael,

    You’re not explaining yourself well here.

    What do you mean — a “due process” right without a remedy? What process is due when a state employer terminates a state employee because the employee failed to comply with a duty under federal law?

    Why is the employee entitled to any process at all?

    You bear the initial burden here. Explain yourself.

  6. Vic says:

    “Incidentally, I don’t know who your insurance company is, but this health insurance one area where the government will have to work really really hard to outdo the private sector in mistreating people. Consider, for only the most recent example insurance companies denying coverage to rape victims.”

    Well if you continue to assume that any healthcare solution MUST involve contracting with someone to pay for nearly 100% of your care, for a monthly premium (a form that no other insurance you have takes), then OF COURSE you think maybe someone else could do it better (or maybe not, but maybe it’s worth a try given the current situation).

    But a real healthcare solution does NOT need to follow that model at all. But since Congress has become completely power mad (and this really is about power, not health), it serves their best interest to ignore all the other possibilities in favor of THEM being in charge of everything. And they count on dupes who haven’t thought this or much else through to continue to vote for them and go along with their plans like the sheeple that they are inside.

    If you believe that healthcare rates will go down with increased competition, and the Government would accomplish that by being another player in the market, then you have only done half the work. It’s NOT competition with Government that will increase competition. Government’s drain on the economy will largely snuff that out. Ask yourself why our grocery stores are so huge and have so much repetative stuff at reasonable prices. If you can understand that – and not the “capitalists are exploiting…” version, but the adult one – then you will understand what healthcare reform MUST entail. The better solution is so obvious that it boggles my mind that people are still even listening to this garbage about Government solutions.

    But since this blog is largely an afterthought for you, and you let every topic that starts to get interesting die on the vine, I won’t bother.

  7. michael says:

    Steve- You are right, that was a bit terse. But you will find a much fuller discussion of the Bivens issues in my recent paper, Government Data Breaches, so I won’t repeat it here.

    Vic – I would much prefer a single-payer model, which would have enormous savings by cutting out the middleman. President Obama made it clear during the campaign and after that he was opposed to this solution. There doesn’t appear to be a huge demand for it in Congress either; it was the subject of the Saunders Amendment, but that was pulled this week due to the GOP using a demand to have it read aloud as a stalling tactic.

    Even within the paradigm of competing insurance plans, however, I find it very plausible that a government entrant into the market could have very strong downward pressure on prices and upward pressure on quality. There are many reasons for this belief, but the top two are (1) Government currently delivers health care insurance to millions with overheads at a fraction of the private sector; (2) many insurance markets for the self-employed or small businesses in the US are de facto monopolies or duopolies — economic theory suggests adding competition to that kind of a mix pays off big.

    Incidentally the vague term “government’s drain on the economy” is a slogan with very little meaning in this context. It is hard to take seriously since in an insurance regime the money is collected from the insured and paid to private contractors who perform the medical services. Moving money in this fashion is one of the activities that government does most efficiently. (E.g. Social Security — or is that too a “government drain on the economy”?)

  8. Donald A. Coffin says:

    After reading this post, I began to wonder what my institution (Indiana University) was doing. Turns out we have opted only to have people directly covered by the provisions do the E-Verify thing. For which the rest of us can be thankful, even if we were living in ignorance…

  9. Vic says:

    The fundamental thing to understand about ANY Government spending is that Government does not create it’s own wealth. It creates no product except Government, and it spends no money other than that which it takes from another.

    So, when Government decides it is going to compete with the private sector, and by increasing competition (or whatever the current excuse is), lower costs, it IS NOT the same thing as the private sector lowering costs. This is apples to oranges, because Government never spends its own money for anything.

    Meaning, EVERY cent that Government spends, is profit taken from the private sector. Therefore the entire “cost” that Government pays, whether higher or lower, is a reduction in the overall economy – effectively an uncompensated taking. This is taking money from businesses in the form of payroll taxes, employees in the form of payroll taxes, and employees indirectly in the form of less money available for more salary and other benefits. Also indirectly affected are potential employees that are not hired due to Government regs that discourage the business growing, either directly by limiting available funds, or indirectly by setting threasholds that a business owner does not desire to cross (i.e. “Businesses with more than 50 employees must…”).

    Meanwhile by “being more efficient” than the private sector, that “gain” is eaten up by the amount of money it costs the private sector to pay for all that efficiency. Remember, no matter what it spends, the Government is spending money it does not have. So companies hire fewer people, pay them less, do less charitable work, perhaps let workplaces fall out of repair a bit more – maybe even creating safety issues in certain lines of work.

    As an analogy: Let’s say the Government wants to create jobs. So they hire 100,000 people to go around breaking windows. One person might say: “Look, the President created 100,000 jobs AND countless others were saved by all of the wondow work that now must be done! All these people without work are now employed with good Government bennies, and all these other people who likely would have been laid off in some number, since the economy is on hard times, now have enough work to do to save their jobs and small glass businesses.” (don’t laugh, Paul Krugman made the same argument a few years back after one of the hurricanes did billions in damage)

    Another person would point out that the money being spent on contracting for window repair is money that would have otherwise gone into the economy for new production of other things. And regardless of what one might think about that equivalence (someone is working in either case), it is absolutely true that advance comes from the creation of new things, not the continued use/repair of old things. Otherwise we’d all be grinding our own grain and riding around on horses, rather than surfing on the web and finding out news seconds after it happens. So there is a social price in that. Additionally, all those Government workers are not working for free, so the Government is paying those workers AND giving them some set of bennies out of money from the private sector. And unless you honestly believe that every dollar going to Government is spent efficiently with no loss, it costs MORE to give a Government worker the exact pay and bennies that a private sector worker can get; if for no other reason that the cost of administration (but we both know there’s other inefficiencies involved – inefficiencies that Evil capitalists find and remove in the private sector. And even the increased profits for the “greedy fatcats” is economic growth because they greedily spend it on new products which leads to social advancement).

    Whereas, if the system was such that it encouraged the hiring of these workers within the private sector (which Government in this example does not, nor does it in reality) these workers could get the same pay and bennies as they would have from Government, but the loss of economy that accompanied the broken windows would not exist so we would see more social advancement.

    So no broken window = more money to spend on social advancement and more employment.
    Government sponsored broken window = less money for social advancement + less money overall.

    The argument about “cost savings once Government is in the game” is not a serious one since it is the equivalent of saying “yeah, but the Government buys the new windows at a much lower cost than a private window repair shop.” Communism’s harsh reality has long since proven this analogy.

    Assuming that there are 40 million (or whatever the current uninsured number is) people who seek to be “employed,” it is laughable to think that handing them a crowbar is the solution.

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