Immigration reform is taking its time in Congress but the executive branch agencies charged with enforcing immigration laws have not been idle. Rather, they’ve been implementing bits and pieces of the reform package on their own – but not any of the good ones. 

Last month, the U.S. Citizenship and Immigration Services (USCIS) announced that it will “lock” a Social Security number when E-Verify or USCIS employees, based on new algorithms, believe the number is fraudulent or used fraudulently. The number is locked and a tentative non-confirmation (TNC) is issued to the applicant or applicants using the contested number – preventing any further E-Verify confirmations until the fraudulent user proves he or she is the lawful holder.

Although my colleagues and I have written extensively about the E-Verify system and its threat to liberties and economic growth, locking adds a newer negative dimension.   

“Locking” was proposed as part of the summer’s comprehensive immigration reform bill that was passed by the Senate and in the House’s Legal Workforce Act. Locking was a bad idea in those bills and remains a bad idea today when implemented by regulatory fiat.

The largest and most obvious problem is the Kafkaesque bureaucratic resolution process that could catch employees in an endless loop of lockdowns. To begin with, the onus for establishing a valid ID is placed on the user of the number as opposed to USCIS having to prove that the user is fraudulent. Mere identification by a USCIS algorithm shouldn’t prevent somebody from lawfully working.  

Legitimate holders of Social Security numbers that are locked down are forced to go through the standard and long TNC resolution process to unlock their numbers, which in turn involves the use of state and federal issued documents to prove the applicant’s validity.

But these documents are dependent on Social Security numbers.  Driver’s licenses in most states, passports, and most of the other forms of government issued ID use Social Security numbers to establish the bearer’s validity. In essence, the holder of a suspect Social Security number is forced to use documentation derived from a number considered suspect by USCIS in order to prove identification to USCIS.  The government has not stated how it will resolve this conundrum or even if it has considered it.  

Additionally, if a number is locked down due to multiple E-Verify submissions, nothing can stop the fraudulent user of the Social Security number from using that number to acquire government-issued ID. The valid holder of a number, with a valid license and valid passport, would be pitted against the fraudulent holder, with a license and passport that are, on paper, validly issued by the government. How would the valid holder prove who they say they are when USCIS is faced with two or more sets of ID documents that appear valid? Would USCIS have the power to decide who is the valid holder of a Social Security number? What if they decide that the fraudster is correct and dismiss the legitimate holder? What recourse would the legitimate holder have in such a situation?

USCIS took the inaccurate, Kafkaesque E-Verify system and made it worse.   

This post was written with the help of Scott Platton.