Is E-Verify ready for prime time? Definitely not, says a group of lawmakers who believe the system may be less accurate than previously thought.

Use of the  electronic system, designed to allow employers to verify employment eligibility of new hires, is slated to become mandatory Sept. 8 for companies who do business with the federal government.

But there are rumblings in Congress over whether E-Verify’s going to work. Sens. Charles Schumer (D-NY) and John Cornyn (R-TX) recently pointed out what was called a “gaping hole” in the system: It fails to detect identity fraud.

E-Verify simply matches a Social Security number and a name. Schumer, Cornyn and other officials said there aren’t sufficient safeguards against an illegal immigrant using the name, SSN and address of an unwitting U.S. citizen.

Schumer suggested additional measures to enhance employee eligibility verification, including fingerprints.

What’s it all mean? The argument is the latest chapter in the ongoing saga of the Obama administration’s plan to make employers the spearhead of its immigration enforcement program.

You’ll recall that Immigrant and Customs Enforcement (ICE) recently announced plans to audit 650 employers across the country for I-9 compliance, a move that was seen as the first step in heightened enforcement efforts against hiring illegal workers. ICE said it would be seeking to charge violators criminally, a shift from the civil actions the feds have pursued in the past.

About 137,000 employers currently use the E-Verify service, according to federal figures.  More than 6.4 million queries have been received thus far this year. That number would multiply substantially if federal contractors are required to use the system.

Will the Sept. 8 adoption date stand? The deadline’s been postponed several times before. We’ll keep you posted.

To further prove that immigration reform is still on the front burner, Immigration and Customs Enforcement announced its plan to implement a nationwide audit of employer I-9s.

ICE announced that it’s drawing up  Notices of Inspection to review the I-9 records of 652 employers — names not released yet. In some instances, the notices will include subpoenas for records such as

• quarterly wage reports
• EINs
• business licenses
• correspondence from Social Security Administration regarding no-match letters, and
• payroll data.

Employers whose I-9-related records don’t pass muster with ICE will then receive Notices of Intent to Fine.  Also in the announcement, ICE officials said the audit is just a “first step,” so employers probably can expect more audits and inspections.

What happens if you’re contacted for an audit? Make sure you know:

• The name and contact information of company legal counsel. If the company’s legal counsel is not in-house, there should be written instructions for personnel to contact outside counsel immediately.
• Who, in HR or otherwise, will be the the company’s representative for the ICE investigation or audit. You’ll want all communication with ICE channeled through that person to avoid redundancy or contradictions in information.
• The names of company managers who should be informed of an ICE investigation or audit.

And keep in mind:

• An investigator may contact you and ask for an interview, but you have the right to refer the investigator to an attorney.
• An investigator has no right to files and records without a search warrant or subpoena.
• Once you’re informed of an intent to investigate, take special care to secure all related records. Destruction or loss of records after notification could be seen as an attempt to destroy evidence or sabotage the investigation.

Here’s what the employment-law experts at the law firm of Frederickson & Byron recommend:

Don’t ignore the letter. If you do, U.S. Immigration and Customs Enforcement ICE could cite the inaction as proof that you knew you employed an unauthorized worker. So, first, check your records to ensure there’s no typographic error in reporting the employee’s SSN.

• If there’s no error:
  1. Share the “no match” letter with each employee listed on the letter.
  2. Advise the employee to check to be sure that the correct name and SSN has been submitted to the SSA.
  3. Don’t require the employee to produce his or her social security card or any other specific documentation; that could be considered document abuse under employment-eligibility-verification laws.
  4. Give the employee a reasonable amount of time to investigate and/or correct any errors.
• If there is an error: In addition to submitting the correct information to the SSA, you should also correct the employee’s Form I-9. As with any employment matter, be sure to treat all employees listed on the “no match” letter similarly without regard to the employee’s national origin, race or citizenship status.
• If an employee admits to a false SSN: You must immediately terminate employment with your company.
• If an employee verifies that the information given is correct: Ask the employee if he or she can provide any other reason for the “no match” letter. If there’s none, report back to the SSA in writing that the company has reverified that the information submitted is correct and that neither you nor the employee can explain the discrepancy. Ask the SSA to contact the company if any additional employer action is required.
• If an employee verifies that the information given is correct but you uncover additional information: You may learn that, for other reasons – such as an admission of illegal residence – that the employee is unauthorized to work in the United States. If so, you terminate employment. Note: Without other evidence, a co-worker tip in and of itself isn’t basis for termination, or even reverification of an I-9.