Minneapolis-based attorney DeAnne Hilgers isn't sold on Congress' plan to require all employers to use a government database to verify whether new hires are eligible to work in the United States.
She has represented several employers who have been misled by E-Verify, a database maintained by the U.S. Department of Homeland Security and the Social Security Administration.
In one case, Hilgers' client got a call from an out-of-state resident who said his identity had been stolen and that his Social Security number was being used by one of the client's employees.
"We gave that worker the opportunity to address the claim and he walked out the door and we never saw them again," said Hilgers, who works at Lindquist & Vennum. She declined to name her client because the client had not given her permission.
It's the type of scenario that has prompted Sen. Al Franken, D-Minn., to raise concerns about a provision in the Senate immigration bill that would make E-Verify mandatory for all businesses within five years. He said the requirement could be burdensome for small businesses including small farming operations, which hire many immigrant workers.
"The system isn't ready for prime time," Franken said during a press call last week. "Big businesses have the HR departments to deal with these errors. But for a small business where your accountant is also your front desk clerk and your mechanic and maybe your spouse, these kinds of errors are going to be a huge problem."
In Minnesota, some government contractors are required to use the program, but it's not mandatory for all businesses that have contracts with the state.
“I have had to inform the Social Security Administration at least three times that I am a naturalized citizen.”Priya Outar of St. Paul
Though E-Verify is good at detecting the use of fake identification, it's not very good at detecting unauthorized workers who are using stolen or fraudulent documents, according to research done by the Migration Policy Institute.
And the system is still prone to misidentifying legal workers. It has a false positive rate of about 0.7 percent, which is simply too high for small businesses and farmers already stretched for time, Franken says.
Priya Outar of St. Paul is among those who have run into trouble with the system. As a child, she emigrated from Guyana and eventually became a citizen. Yet after graduating from law school, Outar was repeatedly flagged by the system as ineligible to work.
"I have had to inform the Social Security Administration at least three times that I am a naturalized citizen. For a professional (and a lawyer at that), this situation is mostly just awkward and inconvenient; I cannot imagine the increased exposure to discrimination faced by individuals who do less specialized work," Outar said. "Perhaps less important is how insulting it is... Minnesota is the only place I call home."
Indeed, the false positive rate is 20-times higher for foreign born workers than it is for workers born here, according to a 2009 report commissioned by the homeland security department. That's because immigrant workers - particularly Latinos - have more complicated names.
"Latinos often have a maternal and paternal last name, and there's a lack of consistency in tracking both," said John Keller, Executive Director of the Immigrant Law Center of Minnesota. "All of those will potentially lead to a non-authorization for employment even though the person is authorized to work."
Those concerns aren't a big deal when a company has a large HR department to help correct the errors, he said.
"But if you're busy 18 out of the 24 hours just doing your work, you don't have someone designated to do this, the paperwork compliance becomes much more onerous," he added.
It's a particular problem for the state's dairy industry, which is asking Franken to help it get out of the requirement.
Even though the dairy industry is increasingly automated, Minnesota Milk Producers Association president Pat Lunemann said most farmers still rely on people to milk their cows. In Minnesota, about 45 percent of the non-family dairy employees are from Mexico, Guatemala and Ecuador, said Chuck Schwartau, who oversees livestock education programs at the University of Minnesota Extension - Rochester.
Though Franken and Lunemann say error rates are still too high, Center for Immigration Studies public policy director Jessica Vaughan says that E-Verify has improved dramatically since it was launched as a pilot program in 1997. Giving small businesses a pass on E-Verify would mean a lot of ineligible workers could fall through the cracks, she said.
"These are the very industries that where, in many cases, illegal workers are concentrated," she said. "The restaurants, and the landscaping companies and some of the farming operations - they shouldn't be frightened by this."
That's precisely why Migration Policy Institute Director Muzaffar Chishti argues small businesses should be the last to comply: these companies tend to hire more immigrants so they are also more likely to experience higher error rates.
Start with the big companies first, he says.
"I think we've reached a level where we can be comfortable with saying, 'let's move on to the next stage of E-Verify," Chishti said. "But that doesn't mean we can go from the current level of participation to universal application in a short period of time. If I had to do this in a transitional way, I would say small employers should be at the back of the line because you want to get the volume."
For his part, Franken is still considering how to protect small businesses from the mandate. One possibility is to make E-Verify a requirement only after the error rate drops below a certain level.