Is the E-Verify SSN Lockdown Legal? - Tony Weigel

"On November 18, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced the roll-out of a new feature to provide “a critical safeguard to the E-Verify system by detecting and preventing potential fraudulent use of Social Security Numbers (“SSNs”) to gain work authorization.”  Specifically, USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.

This appears to be the next step in broadening the reach of the E-Verify program.  As E-Verify followers may recall, in June of 2011, USCIS announced the creation of Records and Information from DMVs for E-Verify (RIDE), which began allowing E-Verify to validate the authenticity of a participating state’s driver’s licenses used by employees as Form I-9 documents.  Regardless of the merits of either effort, the lawyerly side of my brain couldn’t help but wonder, can USCIS really do all of this?

My analysis began with one of the most basic of law school lessons: the U.S. Constitution trumps statutes, statutes trump regulations, and regulations (when and where they exist) trump policy guidance and lesser legal authority, such as the murky phenomena of Memoranda of Understanding and Agreement.  Fortunately, E-Verify’s originating statute sets forth clear statements of the program’s purpose, scope and limitations." - Tony Weigel, Dec. 10, 2013.