House Bill Would Extend Employment Eligibility Verification Pilot And Expand It Beyond Employment Context

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

HOUSE BILL WOULD EXTEND EMPLOYMENT ELIGIBILITY VERIFICATION PILOT AND EXPAND IT BEYOND EMPLOYMENT CONTEXT
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

The House Judiciary Committee has approved a bill that would extend a pilot employment eligibility verification program for another five years, dramatically expand it from six states to all fifty, and obliterate statutory limits on the use of the program's database outside the employment context.

The committee approved the bill, HR 2359, despite the conclusion of a statutorily mandated independent study that the program should not be expanded, primarily because it relies on inaccurate and outdated information contained in Immigration and Naturalization Service databases, it raises unresolved problems related to privacy, and some of the employers who have participated in it have abused the program, engaging in prohibited practices. The bill, which passed the committee on Sept. 24, 2003, without a hearing, would make the pilot program's system available to any federal, state, or local agency seeking to verify a person's citizenship or immigration status. The bill would make both U.S. citizens and noncitizens subject to the information sharing, without providing any privacy protections whatsoever.

Current Status of Basic Pilot Program. The Basic Pilot is one of three employment eligibility verification pilot programs mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the other two being the Citizenship Attestation and the Machine-Readable programs. The latter two programs were terminated by the Bush administration after their expiration in April and May of 2003, leaving the Basic Pilot as the only one that continues to operate. Currently, it operates in six states: California, Texas, Florida, New York, Illinois, and Nebraska.

The Basic Pilot Evaluation. Section 405 of the IIRIRA required the attorney general to provide "the Judiciary Committees of the House of Representatives and of the Senate with reports on the pilot programs within 3 months after the end of the third and fourth years in which the programs" were in effect. These statutorily mandated reports were issued late, in Jan. 2002, shortly after the pilot programs had been extended by Congress and the president for an additional two years.

The evaluation of the Basic Pilot was conducted for the Justice Dept. by two independent private contractors, the Institute for Survey Research at Temple University, and Westat. The evaluation report identified several critical problems with the program and concluded that it "is not ready for larger-scale implementation at this time."

Among the problems cited by the report:

The program was hindered by inaccuracies and outdated information in the INS databases.
The program did not consistently provide timely immigration status data, which delayed the confirmation of workers' employment authorization in one-third of the cases. (The primary victims of the inaccuracy and unreliability of INS databases were those workers who were penalized by employers unsure of the workers' employment eligibility, according to the report.)
A sizeable number of workers who were not confirmed as employment-eligible by the Basic Pilot were indeed work-authorized but, for a variety of reasons, had not straightened out their records with the INS or the Social Security Administration (SSA). (Forty-two percent of a possibly unrepresentative sample of such workers were found to be work-authorized, compared to less than 25 percent who were "most likely" unauthorized.)
Some employers surveyed did not follow the federally mandated memorandum of understanding that they were required to sign as a condition of participating in the Basic Pilot.
Participating employers engaged in prohibited employment practices, including:
- Preemployment screening, which not only denies the worker a job but also the opportunity to contest database inaccuracies;
- Taking adverse employment action based on tentative determinations, which penalizes workers while they and the INS work to resolve database errors; and
- Failing to inform workers of their rights under the program.
Some employers compromised the privacy of workers in various ways, such as by failing to safeguard access to the computer used to maintain the pilot system, e.g., by leaving passwords and instructions in plain view.
Some employers missed deadlines required by the pilot program and failed to inform workers of their rights when the system was unable to confirm their work authorization.
Some employers continued to employ workers even when the pilot's system did not confirm their employment eligibility.
The INS and the SSA were not accessible: 39 percent of employers reported that the SSA never or only sometimes returned their calls promptly, and 43 percent reported a similar experience with the INS.
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 evaluation, which cost the INS millions of dollars to commission, flatly rejected any notion that the program should be significantly expanded. According to its authors:

The evaluation uncovered sufficient problems in the design and implementation of the current program to preclude recommending that it be significantly expanded. Some of these problems could become insurmountable if the program were to be expanded dramatically in scope. The question remains whether the program can be modified in a way that will permit it to maintain or enhance its current benefits while overcoming its weaknesses [emphasis added].

No evidence was presented to the Judiciary Committee that the Dept. of Homeland Security (DHS), which took over the functions of the INS in March 2003, had solved any of the problems identified in the report. Nor would HR 2359 require that the DHS provide Congress with periodic reports detailing the steps it had taken to address these problems, the number of employers that were participating in each pilot program, all of the states they were operating in, and plans to expand or change the technology used by each program, nor its plans to increase safeguards against unfair immigration-related employment practices.

Basic Pilot's Uses Expanded Beyond the Employment Context. Section 3 of HR 2359 would permit states and local governments to use the Basic Pilot employment eligibility confirmation system to check the immigration or citizenship status of any U.S. citizen or noncitizen who came within their purview. This would expand the Basic Pilot far beyond the employment context.

Such a dramatic expansion of the flawed program is unwarranted given the significant problems identified by the program evaluation. It would magnify the existing privacy and inaccuracy problems by permitting the expanded program to provide more detailed information than it currently discloses. (Section 3 would permit citizenship or immigration status information to be provided in addition to the identity and employment eligibility information currently made available under the Basic Pilot.) Moreover, the provision contains no privacy protections or protections against abusive use by individuals within state or local governments of the information provided through the system.

State and local governments already have access to a system that makes use of DHS databases to determine whether documents presented by non-U.S. citizens match those issued by immigration authorities. The SAVE system, created by sec. 121 of the Immigration Reform and Control Act of 1986 (IRCA) (Pub. L 99-603), includes numerous safeguards to protect against misuse of information, discrimination, and inappropriate disclosure. But none of these protections are included in HR 2359. While the SAVE system cannot verify the immigration status of persons who credibly self-identify as U.S. citizens, no credible study has documented this as a major problem.

Sec. 3 of the new bill would take the U.S. a huge step closer to the establishment of a national register or database of all U.S. citizens and residents, the necessary precursor to implementing a national ID. It amalgamates data regarding citizens and noncitizens into a single database that would be used for multiple purposes, including some that have nothing to do with employment eligibility verification. This would represent a misuse of the SSA data that would be tapped by the expanded system, a use far beyond the purposes originally identified for establishing Social Security numbers.

To date, no studies or explanation of the impact of this change or of its cost-which could be significant-have been conducted or provided. The cost of the current Basic Pilot is $6 million for only 700 employers, according to the program evaluation report. Such a major change from existing law deserves to be studied and considered on its own merits. It should not be tacked onto a simple employment eligibility verification pilot expansion bill, with no information provided about its potential impact.

The Vote. Eighteen Republicans voted in favor of the bill, and seven Democrats and one Republican voted against it. It is expected that similar legislation will be introduced in the Senate.