By TYLER MORAN
Employment Policy Director

     Among a package of new policies introduced by the Bush administration in August 2007, which were outlined in a document titled “Improving Border Security and Immigration Within Existing Law,” are changes to the electronic employment eligibility verification process.  Foremost among these is a “rebranding” of the Internet-based Basic Pilot employment eligibility verification program, which the U.S. Dept. of Homeland Security (DHS) now is calling “E-Verify.”  

     The changes include:

     Making Basic Pilot/E-Verify mandatory for new federal contractors and venders.  DHS will issue regulations in the coming months to require new government contractors and vendors to use E-Verify.  Currently, more than 200,000 companies have contracts with or supply services to the federal government.  Once the regulation is finalized, federal contractors that do not use E-Verify could lose their contract due to “nonperformance,” i.e., failure to fulfill their obligations under the contract.  DHS also announced that it will take immediate steps to modify its Security Acquisition Manual by designating a vendor’s participation in E-Verify as a positive consideration in evaluating which businesses receive a DHS contract. 

     Expanding a recently-piloted “photo screening tool.”  The photo-screening tool, which has been piloted since March 2007 by a small number of employers participating in Basic Pilot/E-Verify, was expanded to all participating employers as of Sept. 2007.  If a worker presents a newer version of an employment authorization document (EAD) or permanent resident (“green”) card as proof of employment authorization, the employer will be able to compare the photograph on the card with a digital photograph stored in DHS’s database.  However, the employer may not require that a worker who attests to being a permanent resident or otherwise authorized to work in the U.S. present either an EAD or a green card.  After he or she is hired, the worker still must be allowed to choose which document(s), from the list of acceptable documents on the reverse side of the I‑9 employment eligibility verification form, to present to his or her employer to establish his or her identity and employment eligibility.

     Verifying certain documents with the U.S. State Dept.  DHS announced that it plans, in the future, to verify documents presented by workers against information stored in visa and passport records.

     Seeking access to state motor vehicle databases.  DHS announced that it would like states to share driver’s license photographs and records with Basic Pilot/E-Verify in order to combat identity theft — but that it would be up to each state whether or not to participate in this program.

     Reducing the number of documents that may be used to prove employment eligibility and identity.  Currently, there are 29 documents on the I-9 form’s list of documents that are acceptable as proof of either identity, or employment eligibility, or both.  DHS announced that in the coming months it will issue proposed regulations to reduce the number of documents on this list.

     Regardless of these new changes, Basic Pilot/E-Verify continues to adversely affect workers.  (For a summary of problems with Basic Pilot/E-Verify, see Basic Pilot/E-Verify: Not a Magic Bullet.)  Under the program, foreign-born workers -- both naturalized U.S. citizens and noncitizens -- are more likely to be incorrectly identified as not authorized for employment (i.e., to receive a “tentative nonconfirmation”) than are native-born U.S. citizens.  In fact, according to the Dec. 2006 report on an interim evaluation of the Basic Pilot conducted for DHS by Westat, foreign-born workers are 30 times more likely than native-born U.S. citizens to receive a tentative nonconfirmation.   In addition, a number of different studies, including the one reported on by Westat in 2006, as well as evaluations conducted by the Government Accountability Office and the Social Security Administration’s Office of the Inspector General, have found that employers misuse Basic Pilot/E-Verify to take unjustifiable and even illegal adverse action against workers.

     More in-depth information about Basic Pilot/E-Verify will be  available in NILC’s forthcoming, revised “Basic Information Brief: Basic Pilot Program.”  DHS has also published an E-Verify Fact Sheet.