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The National
Immigration Law Center (NILC) is a nonpartisan national legal advocacy
organization that works to protect and promote the rights of low-income
immigrants and their family members. Since its
inception in 1979, NILC has earned a national reputation as a leading
expert on immigration law and the employment and public benefit rights
of low-income immigrants. We conduct policy analysis, advocacy, and
impact litigation, as well as provide training, publications, and
technical assistance for a broad range of groups throughout the U.S. NILC’s
extensive knowledge of the complex interplay between immigrants’ legal
status and their rights under U.S. employment laws is an important
resource for immigrant rights coalitions and community groups, as well
as national advocacy groups, policymakers, attorneys and legal aid
groups, workers’ rights advocates, labor unions, government agencies,
and the media.
NILC is encouraged by the fact that the Senate is
addressing the need for comprehensive immigration reform. The
renewed attention to the issue confirms our belief that there is an
unstoppable momentum towards comprehensive immigration reform, which to
be meaningful and effective must include legalization of currently
undocumented workers. This momentum is based on the country’s economic
needs, the reality of a shrinking world and increased trade, demographic
change, increased civic participation by immigrants, and the inherently
undemocratic and unstable nature of our current immigration system. The
only question is the pace and nature of the reforms to come.
However, we have grave concerns with proposals that include mandatory,
nationwide expansion of electronic employment eligibility verification
systems, such as the Basic Pilot Program.
Summary of Problems with Vastly Expanding Electronic Employment
Eligibility Verification
Expansion of electronic employment eligibility
verification systems is often treated as an easy solution to our
immigration troubles -- a no-brainer -- by persons who are unfamiliar
with the problems encountered by the current Basic Pilot Program and the
improvements and protections that would need to be in place before such
a system could be acceptably applied to all U.S. employers.
Unfortunately, such a nationwide mandatory system is not yet ready for
prime time. If implemented using the existing technology, procedures,
and databases, the costs would be high and the results frustratingly
inaccurate. In addition, an expanded system would result in dangerous
privacy breaches and increased discrimination against individuals who
look or sound foreign.
These are exactly the kinds of missteps that should
be avoided as our nation embarks on a new chapter in its immigration
policy. Faith in the current system has broken down on all sides, and
one of the imperatives for a system that works is that it be able, as
the 9/11 Commission said, to “deliver on its promises.” The last thing
we need is a massive new program involving the entire American workforce
that does not address predictable severe implementation problems.
If an expanded employment eligibility verification
system must be included as a component of comprehensive immigration
reform, it is critical that it be implemented in a manner that ensures
accuracy of data, privacy of information, and protection from misuse.
Background
The Basic Pilot Program is an Internet-based
program that allows employers to electronically verify workers’
employment eligibility by directly checking the records maintained by
the Department of Homeland Security (DHS) and the Social Security
Administration (SSA). The Basic Pilot Program is one of the three
pilots created by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, and began operating in six states in 1997.
The other two pilot programs were discontinued. However, in December
2004 Congress extended the Basic Pilot to all 50 states, and it is now
available to employers who voluntarily choose to participate in the
program (several employers are required to participate as a condition of
litigation or penalties). According to the Government Accounting
Office, there were approximately 2,300 employers that voluntarily used
the Basic Pilot Program in 2004.
In creating the pilot programs in 1996, Congress
required the former Immigration and Naturalization Service (INS) to have
an independent evaluation conducted before they could be extended.
The INS selected two firms -- the Institute for Survey Research at
Temple University and Westat -- to conduct the independent evaluation.
In January 2002, an evaluation of the Basic Pilot Program was issued.
It found that although most employers who had volunteered to participate
found the program to be effective and most workers were authorized,
there were inaccuracies and outdated information in the INS databases
that hindered the program. The evaluators also discovered that
employers engaged in prohibited practices. For example, 45 percent
of employees surveyed who contested a tentative nonconfirmation were
subject to pay cuts, delayed job training, and other restrictions on
working, and 73 percent of employees who should have been informed of
work authorization problems were not. In the end, the evaluators
recommended that the Basic Pilot Program not be expanded to a
mandatory or large-scale program, and that the INS and SSA should
address the deficiencies of the program.
Additional problems cited by the report:
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The program was hindered by inaccuracies and
outdated information in the INS databases.
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The program did not
consistently provide timely immigration status data, which delayed
the confirmation of a worker’s employment authorization in one-third
of the cases (note that, according to the report, the greatest
burden for inaccurate and unreliable data falls on workers who are
penalized by employers unsure of their work status).
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A sizeable number of
workers who were not confirmed were work-authorized but for a
variety of reasons did not correct their records with the INS or SSA
(42 percent of a possibly unrepresentative sample taken by the
investigators were found to be work-authorized compared to less than
a quarter which were “most likely” unauthorized).
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Some employers surveyed
did not follow the federally mandated memorandum of understanding
they were required to sign as a condition of participating in the
Basic Pilot.
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Participating employers
engaged in prohibited employment practices, including:
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Preemployment screening, which not only
denies the worker a job but also the opportunity to contest
database inaccuracies;
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Taking adverse employment action based on
tentative nonconfirmations of employment authorization, which
penalizes workers while they and the INS work to resolve
database errors; and
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Failure of employers to inform workers of
their rights under the program.
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Some employers compromised the privacy of
workers in various ways, such as failure to safeguard access to the
computer used to maintain the pilot system, including leaving
passwords and instructions in plain view.
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Some employers missed
deadlines required by the pilot and failed to inform workers of
their rights when the system was unable to confirm their work
authorization.
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Some employers
continued to employ workers despite the lack of confirmation.
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The INS and SSA were
not accessible: 39 percent of employers reported that SSA never or
sometimes returned their calls promptly and 43 percent reported a
similar experience with INS.
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The cost to expand the
pilot program to all employers and to convert it from a voluntary to
a mandatory system would exceed $11 billion.
The Basic Pilot Program Extension and Expansion
Act, which authorized expansion of the Basic Pilot Program to all 50
states, also required DHS to submit a report by June 2004 to the
Committees on the Judiciary of the U.S. House of Representatives and the
Senate. This report should have evaluated whether the problems
identified by the independent evaluation of the Basic Pilot had been
substantially resolved, and it should have outlined what steps the DHS
was taking to resolve any outstanding problems before undertaking the
expansion of the Basic Pilot program to all 50 states.
While the DHS did submit a report to Congress, it
failed to adequately address the concerns laid out in the independent
evaluation. Most importantly, it failed to address the explicit
recommendation by the independent evaluation against expanding the Basic
Pilot program into a large-scale national program until the DHS and the
SSA address the inaccuracies in their databases that prevent those
agencies from confirming the work authorization of many workers.
Most recently, the Government Accounting Office
noted in its report,
Immigration Enforcement: Weaknesses
Hinder Employment Verification and Worksite Enforcement Efforts,
that although DHS has taken some steps to improve the timeliness and
accuracy of information in its database, it cannot effectively assess
increased program usage without information on the “costs and
feasibility of ways to further reduce delays in the entry of information
into DHS databases.” According to DHS staff, they may not be able to
complete timely verifications if the number of employers using the Basic
Pilot Program were to significantly increase.
Provisions that Must Accompany a Nationwide, Mandatory Employment
Eligibility Verification System
The biggest weaknesses of the current Basic Pilot
Program include its lack of resources, database inaccuracy, and employer
misuse of the system to discriminate against workers. In order for an
expanded employment eligibility verification system to improve upon the
existing Basic Pilot Program, Congress should include the following
provisions:
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Any nationwide employment eligibility
verification system that applies to all 5.6 million employers in the
country should be implemented in stages, incrementally, with
rigorous evaluation of its performance at each stage before any
further expansion can take place. As recommended in the GAO report,
Immigration Enforcement:
Weaknesses Hinder Employment Verification and Worksite Enforcement
Efforts, the USCIS [U.S. Citizenship and Immigration
Services] should complete its evaluation of the Basic Pilot Program,
which will assess the program’s current costs, any improvements in
DHS database accuracy, employers’ compliance with the program, and
the feasibility and costs of addressing these weaknesses.
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The employment
eligibility verification system must include a secondary
verification process where the employer is required to request
manual verification by SSA and/or DHS if the employee chooses to
contest the nonconfirmation. The current system puts the burden of
the secondary verification process on the employee; however,
according to the GAO report, the primary reason for nonconfirmations
is delays in entry of employment authorization information into DHS
databases. Additionally, the timeframe of 10 working days that is
currently allotted to employees to contest their nonconfirmation has
been inadequate. Workers have had a difficult time meeting this
deadline, particularly when they need to obtain source documents to
correct the discrepancy or they live in rural areas far from a local
DHS office.
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The employment
eligibility verification system must allow individuals to view their
own records and correct any errors through an expedited process
established by SSA and DHS. Even if significant resources are
devoted to cleaning up the databases, it is probable that some
workers will continue to experience problems which may result in
denial of employment based on misinformation. We believe that all
workers must be able to view their own records and have a reasonable
time in which to fix inaccuracies with DHS and/or SSA.
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The employment
eligibility verification system must be designed to prevent
discrimination based on citizenship status and national origin. The
2003 evaluation found instances where employers were able to use the
Basic Pilot program to engage in unlawful employment-related
practices such as prescreening potential employees and
reverification of status when an employee lodges a complaint or
engages in [labor] organizing [activities].
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The employment
eligibility verification system must protect against abuse of the
system. Specifically, it should be unlawful for employers or other
third parties (1) to use the system selectively or without
authorization; (2) to use the system prior to an offer of
employment; (3) to use the system to exclude certain individuals
from consideration for employment as a result of a perceived
likelihood that additional verification will be required; (4) to use
the system to deny certain employment benefits, otherwise interfere
with the labor rights of employees, or any other unlawful employment
practice; or (5) to take adverse action against any person,
including terminating or suspending an employee who has received a
tentative nonconfirmation. Finally, penalties for
discriminatory practices must be included.
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The employment
eligibility verification system must protect information in the
database from unauthorized use or disclosure. It is critical
that privacy protections be included so that the information
contained in the databases is not used for non-employment
eligibility verification purposes. The 2003 evaluation found
several instances where employers or other unauthorized individuals
gained access to the Basic Pilot Program for uses other than the
designated purpose. Privacy protections and penalties for failure
to comply must be included.
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Finally, the employment
eligibility verification system must require an independent
assessment of the program once implemented. Reports to Congress in
years two and three of the program should be included to ensure that
the program is meeting the needs of both employers and employees.
Reports should specifically evaluate the accuracy of DHS and SSA
databases, the privacy and confidentiality of information in the
databases, and if the program has been implemented in a
nondiscriminatory manner.
Analysis of
Proposed Employment Eligibility Verification Systems in the Secure
America and Orderly Immigration Act of 2005
and the Comprehensive Enforcement and
Immigration Control Act of 2005
The Secure America and Orderly Immigration Act
requires the Commissioner of SSA, in consultation with DHS, to establish
an Employment Eligibility Confirmation System (the “system”) that allows
employers who have hired individuals under the new temporary worker
program to electronically verify their identity and employment
eligibility through machine-readable documents. SSA must also establish
a process to require employers to conduct annual reverification of the
employment eligibility of all individuals. The goal of the system is to
replace the [Form] I-9 process to verify the employment eligibility of
all workers. The bill incorporates important protections within the new
system that we have recommended, including a secondary verification
process, prohibited practices, privacy protections, and
antidiscrimination protections.
The Comprehensive Enforcement and Immigration
Control Act requires DHS to expand the Basic Pilot Program nationwide.
Within a year of the bill’s enactment, all 5.6 million employers in the
U.S. would be required to participate in the Basic Pilot. While the
bill does include important confidentiality provisions, it does not
provide general guidelines regarding use and misuse of the program.
Our concerns with these proposals include the
following:
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Neither bill requires
USCIS to finish its evaluation of the current Basic Pilot Program
before further expansion. Without this information, Congress cannot
effectively assess possibilities for future implementation of the
program.
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Neither bill extends
the amount of time that workers are given to contest a
nonconfirmation of their employment eligibility beyond 10 working
days, which has been inadequate.
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The Secure America and
Orderly Immigration Act transfers the authority of verifying
workers’ employment authorization status from DHS to SSA, which
fundamentally changes SSA’s mission, rendering it more like an
immigration enforcement agency than an agency administering
benefits.
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The Secure America and
Orderly Immigration Act requires annual reverification of the
employment eligibility of every worker in the U.S. Under the
Basic Pilot Program, employers have used reverification of
employment eligibility as a means to retaliate against workers who
complain about labor conditions. This situation would likely be
exacerbated with a system that requires annual reverification.
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The Secure America and
Orderly Immigration Act requires a host of new information to be
collected on all workers, including occupation, annual wages paid,
period of employment eligibility, when a worker begins a job and
when they are terminated. This information will be warehoused in a
massive database that sets the framework needed for a national ID
system, which raises grave civil liberties and civil rights
concerns.
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The Comprehensive
Enforcement and Immigration Control Act does not provide any
guidance regarding use and misuse of the program. At minimum, the
bill must include a secondary verification process,
antidiscrimination protections, and prohibited practices to prevent
the program from being misused.
Any expansion of employment eligibility
verification systems should build on the lessons learned from the
current Basic Pilot Program. Put simply, DHS and SSA cannot currently
administer a successful, national mandatory program. Moving forward
without addressing the current deficiencies would hurt employers and
employees alike without improving immigration enforcement. If Congress
does move forward with such a proposal, we hope that it will consider
the recommendations we have listed above.
For more information
contact:
Tyler Moran, NILC
policy analyst, at 208-333-1424 or
moran@nilc.org;
Marielena Hincapié, NILC program director, at 213-639-3900 x112 or
hincapie@nilc.org; or
Josh Bernstein, NILC
federal policy director, at 202-216-0261 or
bernstein@nilc-dc.org.
* Throughout
this draft of the statement, a term that appeared in the
original draft (available in PDF
format), "employment verification," has been changed to the
more specific term, "employment eligibility verification." In
addition, some spelling and punctuation corrections have been made, and
a few terms have been clarified by adding words that appear in brackets
[ ]. These revisions to the statement were made on Mar. 2, 2006.
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