By Joan Friedland, Immigration Policy Director
and
Tyler Moran, Employment Policy Director

     A three-month “Photo Screening Tool Pilot Program” begun this past March by U.S. Citizenship and Immigration Services (USCIS) will likely lead to increased discrimination against lawful immigrants and possibly even naturalized U.S. citizens, since it makes certain non–U.S. citizen workers subject to an employment eligibility verification procedure that does not apply to other workers.  Forty employers that already participate in the automated Basic Pilot employment eligibility verification program are trying out the new photo screening tool.  The 40 employers account for over 400 hiring sites.  The Basic Pilot is the voluntary system currently used by about 15,000 employers throughout the United States.  (For more information about the Basic Pilot, see NILC’s Basic Information Brief: DHS Basic Pilot Program.)

     The ostensible purpose of the Photo Screening Tool Pilot Program is to detect fraudulent documents.  However, the new program applies only to noncitizens.  When a noncitizen employee of an employer participating in the photo screening program presents a Dept. of Homeland Security (DHS)–issued permanent resident card or employment authorization document (EAD) as part of the Form I-9 employment eligibility verification process, the employer is required to then compare the photograph on the card against an official USCIS photograph that appears on the employer’s computer screen via the Basic Pilot’s Internet-based system.  According to USCIS, the employer is to ascertain whether the two images are identical.  If the employer reports via the Basic Pilot system that the photographs do not match, then the employee is issued a “tentative nonconfirmation” of employment eligibility.

     Under the new photo screening program, therefore, an employer’s responsibilities with regard to verifying new employees’ employment eligibility vary depending on whether the person is a U.S. citizen or a noncitizen, since only noncitizens would have a permanent resident card or EAD.  In turn, noncitizens who present either of these documents during the I-9 process face enhanced verification requirements.  As a result, employers may be unreasonably suspicious of citizens who look or sound “foreign,” suspecting that they are claiming to be U.S. citizens to avoid a photo screening.  The addition of another employment eligibility verification step that applies only to noncitizens also provides employers an added incentive to avoid hiring lawful immigrants, because it increases the amount of work and expense involved in hiring them. 

     The new program may also encourage employers to violate the Immigration and Nationality Act’s antidiscrimination “document abuse” provisions, which prohibit employers from demanding specific documents from workers, or more documents than the law requires, to prove their employment eligibility.  The photo screening program creates an incentive for employers, particularly those who want to protect themselves against claims that they hire undocumented workers, to require new noncitizen employees to present either a permanent resident card or an EAD, since these are the only documents that can be checked with the new tool.  Finally, the program may lead employers to refuse to hire noncitizens who present an older EAD that does not contain a photograph, since they may assume that the person presenting it is committing document fraud.

     Moreover, USCIS acknowledges that ordinary office conditions or practices may cause variations between the image on the card and the image that appears on the computer screen via the Basic Pilot system.  In its photo screening user’s manual, USCIS instructs employers that they do not have to be 100 percent certain that the images match.   The manual recognizes the existence of factors that may cause variances between the images, such as the quality of the employer’s computer monitor, the age and wear of the DHS-issued document, and whether the employer is comparing ­a copy­ of the employee’s document with the image on the screen.  Without a clear standard for employers to apply in comparing the image on their computer screen with the one on the document or copy of a document that the worker presented, it is likely that some employers will wrongly reject an employment-authorized person’s documentation. 

     The significance of those variations and of employer judgments about the variations would be tested by a meaningful evaluation of the photo screening program.  DHS claims that an evaluation will be conducted to monitor the effectiveness of the program and to suggest changes.  However, whether the evaluation will truly be objective and exhaustive is open to question.  USCIS has announced that photo screening will be made a mandatory part for the Basic Pilot in June 2007 — the same month the photo screening pilot program ends.  In other words, photo screening will become mandatory before it can be thoroughly evaluated to ascertain whether it creates as many problems as it purports to solve.

     USCIS’s eagerness to launch full scale operation of the photo screening program without a meaningful evaluation is misguided.  Independent evaluations of the Basic Pilot have shown that employers’ failure to obey its requirements and their misuse of the program to discriminate against workers have been a significant  and continuing problem.  This problem is detailed in NILC’s issue brief, The Basic Pilot Program: Not a Magic Bullet.    

     Finally, it is unclear whether USCIS has authority to conduct the photo screening pilot program.  While specific statutory authority exists for the Basic Pilot, no statutory authority exists for a Photo Screening Tool Pilot Program.