INS Expands One Employment Eligibility Verification Pilot and Starts Another

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

INS EXPANDS ONE EMPLOYMENT ELIGIBILITY VERIFICATION PILOT AND STARTS ANOTHER
Immigrants' Rights Update, Vol. 13, No. 3, May 28, 1999

The Immigration and Naturalization Service has announced that it is expanding the Basic [Employment Eligibility Verification] Pilot Program to include the state of Nebraska and offering the Citizen Attestation Pilot Program to employers in the states of Arizona, Maryland, Massachusetts, Michigan, and Virginia. The INS published the notice regarding the Basic Pilot in the Federal Register on Mar. 19, 1999, and the one about the Citizen Attestation Pilot on Apr. 6, 1999.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) requires the attorney general to conduct three employment eligibility verification pilot programs. The programs are (1) the Basic Pilot, (2) the Citizen Attestation Pilot, and (3) the Machine-Readable Document Pilot. Participation in these programs is voluntary on the part of employers, except with regard to the executive and legislative branches of the federal government and certain employers found to be in violation of the Immigration and Nationality Act in states where a pilot is being conducted.

A joint project of the Social Security Administration (SSA) and the INS, the Basic Pilot started in November 1997. The program involves electronic verification checks of the SSA and INS data bases that uses an automated system to verify the employment authorization of all newly hired employees by referencing Social Security numbers and alien registration numbers. Verification checks are conducted for both U.S. citizens and noncitizens, and employers are required to attempt verification of employment eligibility by first accessing the SSA database. Only after employment eligibility cannot be confirmed with the SSA data base will employers be instructed to access the INS data base.

The Basic Pilot was originally offered to employers in California, Florida, Illinois, New York, and Texas. The IIRIRA requires that this pilot be conducted in five of the seven states with the highest estimated populations of undocumented aliens, and these five states meet this requirement. Via the March 1999 notice, the INS is advising employers in Nebraska that they may now elect to participate in the Basic Pilot. According to the INS, Nebraska has been chosen because the agency is conducting Operation Vanguard there. This is a program involving an industry-wide audit of the meatpacking industry in Nebraska as well as in parts of Iowa and South Dakota (see "INS Questions Nebraska Meatpacking Workers as Part of Operation Vanguard," p. 16).

The Citizen Attestation Pilot uses the same electronic verification system as the Basic Pilot to verify the employment authorization of newly hired employees. However, under the Citizen Attestation Pilot, employers verify employment eligibility only for newly hired alien employees. Furthermore, employers will conduct verification checks using only the INS data base, as this pilot does not involve SSA verification procedures. Normally, in completing Form I-9 (Employment Eligibility Verification), a new employee is required to present either a List A document, proving both identity and employment eligibility, or a combination of List B and List C documents, the former proving identity and the latter proving employment eligibility. However, under the Citizen Attestation Pilot, an employee attesting to U.S. citizenship who presents a List B identity document is not required to present any List C document demonstrating employment eligibility. The IIRIRA also provides for a special subset of the Citizen Attestation Pilot that will involve even less rigorous procedures for verifying employment authorization. Under this subset, when an employee attests to being a U.S. citizen, the employer will be required only to complete section 1 of the Form I-9. Furthermore, the employer will not be required to view any documents.

When the INS first published a notice in September 1997 regarding the pilot programs, employers in all fifty states were invited to participate in the Citizen Attestation Pilot. But the INS reserved the right to limit the pilot to certain states based on the level of employer interest and on further determinations as to states’ drivers’ licensing procedures. The INS has now decided to limit its current invitation to participate in the Citizen Attestation Pilot to the states listed in the April 1999 notice (i.e., Arizona, Maryland, Massachusetts, Michigan, and Virginia.)

[64 Fed. Reg. 13,606 (Mar. 19, 1999) (Basic Pilot); 64 Fed. Reg. 16,751 (Apr. 6, 1999) (Citizen Attestation Pilot).]