By Tyler Moran, NILC Employment Policy Analyst, and
Joan Friedland, NILC Staff Attorney

      The Comprehensive Immigration Reform Act of 2006 (S 2611), which the U.S. Senate passed on May 25, 2006, would create a new Electronic Employment Verification System (EEVS) for checking the employment eligibility of every newly hired worker in the United States.  The new EEVS would build on the Basic Pilot program,[1] which is a voluntary, Internet-based employment eligibility verification system currently used by approximately 10,000 employers.[2] 

      Numerous proposals to create a mandatory EEVS have been introduced in Congress, and an EEVS is viewed by Republicans and Democrats alike as one of the essential immigration enforcement measures to be included in any comprehensive immigration reform proposal.  The assumption is that tighter controls at the worksite will decrease unauthorized employment in the U.S.  However, unless an EEVS is accompanied by the legalization of undocumented workers already in the U.S. and increased enforcement of labor and employment law, it will simply result in an expansion of the underground economy and further exploitation of low-wage workers.  The enforcement-without-reform policy of the last 20 years has been a resounding failure:  7.2 million unauthorized workers are currently employed in the U.S., representing almost 5 percent of the civilian labor force.[3]

      Our economy depends on low-wage labor, and undocumented workers perform low-skill, low-wage jobs.  An enforcement-only approach, without legalization, will only drive unauthorized workers into the underground cash economy, resulting in potentially billion-dollar losses in federal, state, and local tax revenues.  Moreover, weak enforcement of labor and employment laws has allowed unscrupulous employers to manipulate immigration law to punish workers seeking to enforce their labor rights.  Many unscrupulous employers knowingly violate the law to hire undocumented workers who they know will be reluctant to hold them accountable for labor law violations. 

      Furthermore, the Basic Pilot, upon which most EEVS proposals are based, has been plagued by problems since its inception in 1997.  Most notably, the program, which is used only by a relatively small number of employers, has been hindered by inaccurate and outdated information in the Dept. of Homeland Security (DHS) and Social Security Administration (SSA) databases, lack of adequate privacy protec­tions, and misuse of the program by employers.  Although S 2611 includes important worker protections that address many of the inadequacies of the Basic Pilot, implementation of an enforcement-only system without increased enforcement of labor and employment laws would further exacerbate the existing problems and create additional incentives for unscrupulous employers to recruit, hire, and exploit unauthorized workers.   

Background: The Current Employment Eligibility Verification System

      The "I-9 system" is the current employment eligibility verification system that has been in place since the enactment of the Immigration Reform and Control Act of 1986 (IRCA), which made it unlawful for employers in the U.S. to "knowingly" hire employment-ineligible workers.  Under this system, all employers are required by law to verify, within three days of hire, new employees' documents that establish their identification and employment eligibility.  Employers may accept any combination of specified documents (listed on the reverse side of the Form I‑9) as long as the documents appear genuine on their face and appear to correspond to the employee presenting them.  Employers that violate the law are subject to penalties known as "employer sanctions." 

      The Basic Pilot is an Internet-based program that allows employers to electronically verify workers' employment eligibility by directly checking the records maintained by DHS and SSA.  As its name suggests, it is a pilot program, created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), that began operating in six states in 1997.  In Dec. 2004, Congress extended the Basic Pilot to all 50 states, and it is now available to employers who voluntarily choose to participate in it, although employers who have been found to have unlawfully hired unauthorized workers or discriminated against workers on the basis of national origin or citizenship status may be required to participate.

      Employers who participate in the Basic Pilot are required to enter a new employee's Social Security number (SSN) and proof of identity and employment eligibility into a form in a government website within three days of hire.  The information is initially checked against SSA's Numerical Identification file (NUMIDENT).  If SSA can confirm the person's employment eligibility, the employer will receive a "confirmation" notice.  If SSA is unable to confirm a U.S. citizen's employment eligibility, the employer will receive a "tentative nonconfirmation" notice.  Citizens can then contest the finding with SSA.  If SSA is unable to confirm a non-U.S. citizen's employment eligibility, the information is forwarded to U.S. Citizenship and Immigration Services (USCIS) to be checked against its database.  SSA and/or USCIS are required to respond to the employer within three working days with a "confirmation" or "tentative nonconfirmation" notice.  If the person receives a "tentative nonconfirmation" notice, he or she has eight federal working days to appeal the decision.

      The major difference between the I-9 system and the Basic Pilot is that under the I-9 system, the employer has to certify on the I-9 form that the documents presented by the employee appear to be genuine, and the employer must retain such information in its files.  Under the Basic Pilot, the employer must receive confirmation from SSA and/or USCIS that the information presented by the individual matches records maintained by SSA or USCIS. 

Overview of the Electronic Employment Verification System Proposed in S 2611

      Title III of S 2611 would expand the Basic Pilot program and replace the I‑9 system with the EEVS, that would be mandatory for all employers in the U.S.  Section 301 of the bill is a complete revision of section 274A of the INA (8 USC § 1324a).  Like the Basic Pilot, the new EEVS would require confirmation from SSA and/or USCIS that the information presented by the worker to the employer matches records maintained by SSA and/or USCIS.  Under S 2611, the new EEVS would be implemented with respect to new hires 18 months after the date that at least $400 million have been appropriated and made available to DHS for implementation of the EEVS.  However, the secretary of DHS would have the authority to require "critical" employers (i.e., deemed so based on an assessment of homeland security or national security needs) and employers that the DHS secretary has reasonable cause to believe have engaged in material violations related to unlawful employment of immigrants to use the EEVS to verify the employment eligibility of all their employees before the 18-month period. 

How the new system would work

      Employers would be required to use the EEVS to seek confirmation of a worker's identity and employment eligibility not later than three days after the worker's date of hire.  Workers would have to present proof of identity to the employer as follows:  lawful permanent residents would be required to present a permanent resident card; all other work-authorized immigrants would be required to present an employment authorization document (EAD); and U.S. citizens would have to present a U.S. passport or a driver's license or ID card that complies with requirements in the REAL ID Act.[4]  In addition to obtaining an identification document from the newly hired worker, the employer would also have to obtain the following:  (1) the worker's name and date of birth, and, if the worker was born in the U.S., the name of the state in which the person was born; (2) the worker's SSN; (3) the employer identification number (EIN) of the worker's employer during any one of the five most recently completed calendar years (the former employer would be required to provide the EIN upon request from the worker); and (4) if the newly hired worker does not attest that he or she is a U.S. national, an "alien identification or authorization number."  The bill also would authorize the DHS secretary to require an employer to certify that the employer is in compliance with these requirements if the secretary has "reasonable cause" to believe that the employer is not in compliance.  The secretary would publish standards and methods for certification in the Federal Register.

      As laid out in S 2611, from this point the EEVS would work as follows:  After the employer submits the worker's information to the EEVS, the system must provide a response no later than 10 days after the inquiry.  A "confirmation" indicates that SSA and/or USCIS have verified that the worker is eligible for employment.  A "tentative nonconfirmation" indicates that the records maintained by SSA and/or USCIS do no match the information submitted by the worker to the employer, and that further investigation is necessary.   If the employer receives a tentative nonconfirmation, the employer must, not later than three days after receiving the notice, provide the worker a written notice that includes the following:  (1) information about the reason for the notice; (2) the right to contest the notice; (3) contact information for the appropriate agency and "instructions for initiating such contest"; and (4) a 24-hour toll-free number to respond to inquiries related to the notice.  (This written notice is to be developed by the DHS secretary and is to be made available to employers "in a language other than English, as necessary and reasonable.")

      The worker then has 10 days to submit clarifying information to SSA or USCIS to contest the finding.  The employer cannot take adverse action against the worker during this time.  If the worker does not contest the tentative nonconfirmation within 10 days of receiving it, the nonconfirmation becomes final and the employer must fire the worker. 

      A worker's failure to contest a tentative nonconfirmation would not be considered an admission that he or she is not employment-eligible.  However, employers would be required to report any information relating to the worker that the DHS secretary determines would assist the enforcement or administration of immigration laws.

      If a final confirmation or nonconfirmation is not issued by the DHS secretary within 30 days after the worker contests a tentative nonconfirmation, the worker will automatically be confirmed as employment-authorized — and in the interim, the employer may not fire the worker based on a suspicion that the worker is not employment-eligible.  This employment-authorized status will remain in effect either (1) during any continuous period of employment, unless the DHS secretary determines that the worker committed identity fraud, or (2) during the period that a person is temporarily authorized to be employed.  The process of issuing an automatic (or "default") confirmation will remain in effect until the Government Accountability Office (GAO) can certify that the EEVS can issue a final confirmation of employment eligibility to workers who are eligible for employment within 30 days of the initial inquiry at least 99 percent of the time. 

Antidiscrimination, due process, and privacy protections in the proposed EEVS

      The EEVS proposed in S 2611 includes important due process, antidiscrimination and privacy protections.  The DHS secretary, in consultation with the SSA commissioner, would be charged with establishing a process to permit workers who contest an EEVS decision, or who seek to verify their own employment eligibility, to contact the appropriate agency to correct or update information in the EEVS in a "timely manner."  The bill also provides for an administrative and judicial review process where workers who are fired due to incorrect information contained in the EEVS could challenge the decision.  If it were found that the worker was fired due to an error in the EEVS, the worker would be entitled to compensation for wages lost (calculated based on the wage rate and work schedule that prevailed prior to termination) beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative or judicial review process or the day after the worker was reinstated or obtained employment elsewhere, whichever occurred first.  However, attorney's fees and costs could not be recovered.  

      The bill also would expand section 274B of the INA relating to unfair immigration-related employment practices to explicitly apply to employment decisions related to the new EEVS.  Specifically, it would make it an unfair immigration-related employment practice to (1) terminate or take adverse action against a worker based on a tentative nonconfirmation notice, including during the appeal period; (2) use the EEVS for screening of an applicant prior to an offer of employment; (3) use the EEVS for current employees beyond the first three days of their hire, or for employment eligibility reverification of an employee who has satisfied the EEVS requirements; or (4) require a worker to make an inquiry under the self-verification procedures.  The bill also would limit the information that the EEVS could collect and maintain to the minimum data necessary to operate the system; would make it a misdemeanor for anyone to willfully and knowingly collect and maintain data that is not required under the system; and would make it a felony to knowingly access, disclose, or use any information in the EEVS for the purpose of (a) committing identify fraud or assisting another person in committing identify fraud, or (b) unlawfully obtaining employment, or (c) for any purpose other than provided for under any provision of law.

Additional antidiscrimination protections

      S 2611 would expand the categories of non–U.S. citizens who are covered by the INA's anti–citizenship status discrimination provision,  section 274B, to include all lawful permanent residents, persons granted temporary residence, refugees, asylees, persons granted temporary protected status (TPS), nonimmigrants under the H-2C temporary guest worker program that would be created by S 2611, and persons granted parole into the U.S.  The current definition of a "protected individual" under section 274B excludes long-term LPRs, TPS beneficiaries, parolees, and temporary workers.  In addition, the bill would authorize $40 million for the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), part of the Dept. of Justice's Civil Rights Division, to conduct an information campaign for each fiscal year during the 2007–09 period.

      The bill also would increase the fines employers are subjected to for engaging in unfair immigration-related employment practices, such as national origin and citizenship status discrimination, "document abuse" (which occurs when an employer requires that a worker present more or different documents than the those required under the law), and retaliation, as follows:  (1) civil penalties may range from $1,000 to $4,000 for each individual discriminated against; (2) employers who have previously violated the law once are subject to a civil penalty ranging from $4,000 to $10,000 for each individual discriminated against; (3) employers who have previously violated the law more than once are subject to a civil penalty ranging from $6,000 to $20,000 for each individual discriminated against; and (4) employers who commit "document abuse" are subject to a civil penalty ranging from $500 to $5,000 for each individual discriminated against.

Disclosure of tax identity information

      New requirements regarding information-sharing among the Internal Revenue Service, SSA and DHS are also included in S 2611.  Upon written request, SSA would have to provide to DHS (1) employer taxpayer identity information (name, mailing address, and taxpayer identifying number) if the employer has filed Wage and Tax Statements (Forms W‑2) that have more than 100 names that do not match SSA records or more than 10 employees with the same SSN; (2) taxpayer identity information of employers who filed W-2s when SSA believes there is identity fraud due to multiple persons filing returns of the same taxpayer identifying number; (3) taxpayer identity information of employers who filed W-2s when SSA believes they are not participating in the EEVS; (4) taxpayer identity information of new employees of employers whom SSA believes are not participating in the EEVS; (5) taxpayer identity information of all employees of employers required to participate in the EEVS because they are critical infrastructure employers or because of previous violations of employment eligibility requirements; and (6) taxpayer identity information for new employees of employers participating in the EEVS.  Disclosure would be restricted to establishing and enforcing employer participation in the EEVS, enforcement of certain provisions of the INA, and the civil operation of the Alien Terrorist Removal Court.[5]

      The bill would authorize an annual increase (subject to appropriations) of not less then 2,200 ICE personnel for a 5-year period.  It also would require DHS to ensure that not less then 25 percent of all hours expended by all ICE personnel are used for immigration enforcement at the worksite.  Under the bill, an "employer compliance fund" also would be created that would collect all civil monetary penalties for unauthorized employment of immigrants.  These funds would be used for enhancing and enforcing employer compliance with the law.

Assessment and reporting requirements

      Finally, the bill would require the DHS secretary to submit to Congress annual reports that include an assessment of whether the EEVS is able to correctly issue, within 30 days, a final confirmation notice in at least 99 percent of the cases in which the final notice relates to a worker who is employment-authorized, and a certification of such assessment.  It also would require the GAO to conduct annual studies and submit to Congress annual reports that evaluate the accuracy, integrity, and impact of the EEVS.  The reports would also have to include, at minimum, the following:  (1) an assessment of DHS's annual report and certification regarding database accuracy; (2) an assessment of EEVS performance with respect to the rate at which workers who are eligible for employment are correctly approved within 30 days, including a separate assessment of such rate for nationals and immigrants; (3) an assessment of the privacy and security of the EEVS and its effects on identity theft or misuse of private data; (4) an assessment of the impact of the EEVS on the employment of unauthorized workers; (5) an assessment of the effects of the EEVS, including the effects of tentative nonconfirmations on unfair immigration-related employment practices and employment discrimination based on national origin or citizenship status; and (6) an assessment of whether DHS and SSA have adequate resources to carry out the EEVS.

Analysis of the EEVS Proposed in S 2611

      Creating a mandatory EEVS represents a significant shift in the way that workers in the U.S. will seek employment.  To secure employment under the proposed system, workers will first have to be approved by the federal government as employment-eligible, whereas now employers determine whether or not a new hire is employment-eligible based on the documents the worker presents.  Although the EEVS proposed in S 2611 includes important worker protections that do not exist in other proposals, including the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (HR 4437)[6] that passed the U.S. House of Representatives last December, the massive expansion of the Basic Pilot, and converting it into a mandatory and permanent program, will likely have a disparate impact on immigrant workers, while directly affecting all workers and disrupting the flow of business. 

New documentation requirements

      The provision that would eliminate from the current list of acceptable identity documents all but one type of document is likely to prolong the hiring process.  Current law allows workers to choose from among a range of acceptable documents one document to prove their identity.  This flexibility recognizes the fact that not all work-authorized individuals have the same documents.  Under S 2611, lawful permanent residents would be allowed to present only their permanent resident (or "green") card, and all other work-authorized noncitizens would be allowed to present only an employment authorization document.  

      This restriction ignores the lengthy time it takes new LPRs, and those who have lost their green cards, to obtain new green cards and EADs.  Sole reliance on the EAD is extremely limiting, and it is certain that the lengthy process required to obtain and subsequently renew EADs will causes delays in employment.  Certain categories of immigrants — such as refugees, asylees, and people granted TPS — have authorization to work incident to their immigration status,[7] and people in some of these categories are considered work-authorized whether or not they have EADs.  For example, LPRs and asylees are eligible to be employed in the U.S., whether or not they have EADs.  In such cases,  requiring an EAD would compel workers to incur the time and expense of obtaining one they would not otherwise need and similarly burden the agency with having to issue additional unnecessary documents. 

      Generally, EADs are issued for a one-year period and require the payment of a fee each time they are initially obtained and renewed.  An expiration date on an EAD may merely indicate that the card has expired, but not that authorization to work has expired.  For example, the expiration date of an asylee's EAD indicates only that the document must be renewed but not that the asylee's work authorization has expired.[8]  The expiration date of EADs issued to persons granted TPS is often the date announced in a notice published in the Federal Register, not the date actually printed on the EAD.[9]

      The EAD requirement may cause delays in employment or perhaps even lapses in employment due to DHS backlogs and other errors in processing EADs.  While workers with EADs are advised to apply for renewals 90 days prior to their expiration date, often the DHS is unable to issue the new EAD within the 90-day period.  Other problems with EAD renewals include DHS losing applications for renewal and/or failing to actually send the EAD to the applicant after processing the renewal application.  Other categories of immigrants simply are not issued EADs at all because they are authorized to be employed only by a particular employer.[10]

      Under the proposed system, to prove their identity U.S. citizens would be allowed to present only a U.S. passport, or a driver's license or ID card that complies with requirements in the REAL ID Act.  However, the REAL ID Act's requirements will not take effect until May 2008 at the earliest, and when they do take effect, many U.S. citizens — both foreign-born and native-born — will not be eligible for a REAL ID–compliant license or ID.  In addition to the practical considerations, sole reliance on a REAL ID document moves us closer to the framework for a national ID system, which raises grave civil liberties and civil rights concerns.  The bill would allow the DHS secretary to designate other documents as proof of identification, but they are not specified in the legislation. 

      In addition, a last-minute provision included in the bill would require workers to also submit the employer identification number of their former employer as part of the verification process.  While the employer would be required by law to provide the EIN to the worker, the burden to actually obtain it would inevitably fall on the worker, who would not be able to obtain future employment without first obtaining this number.  This provision also raises substantial privacy concerns for small employers — including family businesses — whose EIN is often their SSN.  The intent of this provision is to combat identity fraud by creating another piece of information to verify, but the practical implication of the requirement, if it becomes law, is that it will make it more difficult for workers to obtain employment.

The default confirmation

      One important provision in the Senate's EEVS proposal is the creation of an automatic, or "default," confirmation in the case where DHS does not issue a finding on a worker's employment eligibility within 30 days after the person contests a tentative nonconfirmation.  The default confirmation remains in place until the GAO can certify that the EEVS can issue a final confirmation of work eligibility to workers who are eligible for employment within 30 days of the initial inquiry at least 99 percent of the time.  This provision is significant because once a worker challenges a tentative nonconfirmation under the Basic Pilot, the burden is on the worker to prove that there is an error in the system — even though the primary reason for nonconfirmations is delays in entry of employment authorization information into DHS databases.

      While the default confirmation is an important protection, it does not address the underlying problem that the database upon which the EEVS would rely currently generates a higher number of erroneous tentative nonconfirmations for foreign-born noncitizens than it does for native-born workers.[11]  This is important because while employers are prohibited from taking adverse action against workers who receive a tentative nonconfirmation, a 2002 independent evaluation of the Basic Pilot found that 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, thereby limiting their ability to correct inaccurate nonconfirmation notices and continue working.[12]   In addition, the timeframe of 10 days to contest a tentative nonconfirmation is inadequate.  Under the Basic Pilot, workers have had a difficult time meeting the 8-day deadline, particularly when they need to obtain source documents to correct the discrepancy or they live in rural areas far from a local USCIS or SSA office.

Worker protections in the proposed EEVS

      The existence of an administrative and judicial review process for workers who lose their jobs due to errors in the EEVS is critically important.  Specifically, if there is a finding of an EEVS error, workers are entitled to compensation that includes lost wages beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process or the day after the worker is reinstated or obtains employment elsewhere, whichever occurs first.  Unfortunately a provision to provide for attorneys' fees and costs was stripped out at the last minute.  This will make it difficult for low-income immigrant workers to find representation and strain the already limited resources of nonprofit organizations.

      The 18-month timeline for implementation of the EEVS is unrealistic — both from the perspective of DHS's ability to manage the program and for employers to receive training and equipment to participate in the EEVS.  The EEVS is particularly vulnerable to poor planning because of its unprecedented scope, and the disconnect between the agency mandate to get something up and running quickly and the requirements that would ultimately determine whether it is successful, such as the need for speed, efficiency, reliability, and information security.  Even the House bill (HR 4437) includes a longer phase-in of the program, with critical infrastructure employers participating three years after enactment and all other employers participating six years after enactment.  In the final Senate negotiations, a provision was added that prohibits the EEVS from being implemented until 18 months after funds have been appropriated and made available to DHS.  While this provision addresses DHS's critical need for resources, it does not address DHS's limited ability to manage the program effectively. 

      DHS's record on managing previous large-scale projects — including its delays in implementing the US-VISIT program and the digitization of paper-based files[13] — demonstrates that the agency does not meet expectations if it is not held accountable.  One means of addressing agency accountability is to set standards for system performance that must be met before the system can be expanded.  The Basic Pilot, which up until this year was used by less than one-twentieth of one percent of all employers, has had too many problems to afford any confidence that the DHS could successfully resolve the over 55 million database queries per year that would result from nationwide expansion.[14]

Additional antidiscrimination protections

      The bill takes an important step towards strengthening the antidiscrimination protections of INA section 274B by expanding the categories of immigrants who are eligible for protection under the law and increasing fines for employers who violate the law.  The INA's antidiscrimination provision is the only federal law that protects workers from workplace discrimination based on citizenship or immigration status.  However, current law protects only workers who are U.S. citizens and nationals, asylees, refugees, and some LPRs.  It protects only those LPRs, who are not yet eligible for naturalization and those who file for naturalization within six months of becoming eligible to do so.  The Senate bill eliminates this restriction. 

      Despite this expansion of the antidiscrimination protection, the categories of immigrants who would be eligible for protection are incomplete.  This section could be further strengthened by allowing all employment-authorized workers to file claims under section 274B, which would be consistent with other types of claims, such as document abuse, under the antidiscrimination provisions.

      The terms under which an immigrant is protected from citizenship status discrimination or document abuse should also be expanded.  Current law prohibits employers from discriminating at the hiring, recruiting, or firing stages, but not during the actual course of employment.  The law should be amended to clarify that workers are protected from discrimination during the "terms and conditions" of their work, as is currently the case with other civil rights laws.

      The bill authorizes an additional $40 million for OSC to conduct an information campaign on the antidiscrimination provisions in section 274B.  These extra resources are critical, as many workers are unaware of the protections afforded them and there likely will be increased instances of citizenship status discrimination with a mandatory expansion of an EEVS.

Information-sharing requirements

      The new information-sharing requirements in the bill create exceptions to the confidentiality provisions in the tax code by requiring SSA to disclose taxpayer identity information of employers and employees to DHS, when DHS requests this information.  It is unclear how these provisions will be interpreted or what process DHS will follow in using taxpayer information for immigration enforcement purposes.  Use of confidential tax information to attempt to enforce immigration law can have a clear affect on tax compliance and has the potential to increase discrimination against foreign-looking or sounding workers.   

      These information-sharing provisions are an incursion into protections for confidentiality of tax information provided by section 6103 of the tax code.  The provisions pertaining to employee information that doesn't match SSA records and identity fraud give DHS access to employer tax identity information simply by requesting it, but they do not give DHS access to employee taxpayer identity information by a simple request.  In those cases, if DHS wanted information regarding employees to use for immigration enforcement purposes, it would arguably have to follow current procedures in the tax code which require a court order. 

      The proposed language grants DHS access to information regarding all employees of critical infrastructure employers, yet it is unclear how critical infrastructure will be defined (e.g., what industries and businesses will be included).  It is also unclear if employees in non–critical infrastructure divisions of critical infrastructure employers would be covered.

      Disclosure of employers' taxpayer identity information because SSA records indicate that more than 100 names and SSNs of their employees do not match SSA records may be problematic.  There are numerous reasons why employees' names and SSNs might not match SSA records, including incorrect data entry, name changes due to marriage or divorce, and misspelled names.  No-matches are not a proxy for unauthorized immigration status.  Rather, they indicate that workers are not receiving proper credit for their earnings, which will affect the level of retirement or disability benefits they may receive in the future.  The no-match provision does not even require that the employer be notified of the discrepancy, nor does it provide an opportunity for either the employer or employee to provide corrected information.

      Disclosure of employers' taxpayer identity information when SSA records indicate they have more than 10 employees with the same SSN is likewise problematic, since the existence of such a situation does not necessarily indicate fraud.  Employers are instructed by the IRS to put 000-00-0000 on W-2s when their employees have applied for SSNs but have not received them.  Advocates of information-sharing between IRS, SSA, and DHS frequently cite the use of 000-00-000 as justification for the breach of tax confidentiality rules, because they argue that using all zeroes on a W-2 is an indication that a person is not work-authorized.  However, employers with high numbers of authorized workers who don't yet have their SSNs would be flagged by SSA for simply following the law.

      It is likely that employers will become fearful that they are in violation of immigration law when their previously confidential tax information is revealed to DHS because they have employees whose names and SSNs do not match SSA records or because they have followed IRS instructions in using 000-00-0000 on W-2s.  The result is that employers will be overly cautious and fire these employees.  Already, thousands of workers have been fired due to the mistaken assumption that an SSA no-match letter indicates an immigration violation.[15]  In addition, the new requirement may increase incidents of the SSA no-match letter being used as a retaliation tool. Unscrupulous employers already use the SSA no-match letter to stymie labor organizing campaigns and to retaliate against workers who have been injured on the job or who complain of unpaid wages or other labor violations.  There is also no indication that DHS makes good use of earnings information it currently has available to it, nor that it has a clear sense of what its future data needs will be and what information will actually be useful for enforcement purposes.[16] 

Conclusion

      The concept of an EEVS is one that enjoys almost universal support in Congress because it is viewed as the key to enforcement at the worksite.  Yet lessons learned over the last 20 years that the current immigration enforcement system has been in place demonstrate that without creating a meaningful path for workers to legalize in this country and serious enforcement of labor and employment law, the an enforcement-only approach is doomed to fail.  The Senate had an opportunity to vote on an amendment offered by Senator Ted Kennedy (D-MA) to strengthen labor law — including a provision that would have eliminated the conflict the Supreme Court identified in its Hoffman Plastic Compounds, Inc. v. NLRB decision holding that undocumented workers are not entitled to a back pay remedy for being illegally fired for union organizing under the National Labor Relations Act — but the Senate leadership refused to let it be voted on.  Until labor and employment law is enforced, unscrupulous employers will always seek out immigrant workers whom they can exploit.