Shriver Center. January February Volume 41, Numbers Electronic Employment Verification Systems

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1 Shriver Center January February Volume 41, Numbers 9 10 Electronic Employment Verification Systems Legal Aid and Community Colleges in Support of Higher Education for Welfare Recipients Electronic Discovery and Federal Rules of Civil Procedure Subsidized Housing and People with Criminal Records Elderly s Independent Living Constrained by Home Energy Costs

2 Electronic Employment Verification Systems: More Harm than Good By Tyler Moran Tyler Moran Employment Policy Director National Immigration Law Center 3435 Wilshire Blvd. Suite 2850 Los Angeles, CA One of the central issues of the immigration debate in the United States is the question of how to deal with the problem of unauthorized employment at the workplace. A popular response from both federal and state policymakers is to implement a mandatory electronic employment verification system. Michael Chertoff, the secretary of homeland security, claims that requiring all employers to participate in a mandatory electronic employment verification system will stop illegal aliens from getting hired, and it will punish employers who make illegal workers part of their business model. 1 This reflects the view of many that such a system is the silver bullet to curtailing the employment of unauthorized workers in the United States. In fact, a mandatory system was the linchpin of every key immigration reform bill debated in the U.S. House of Representatives and the U.S. Senate in 2006 and The lessons learned from the current verification system, however, demonstrate that electronic verification is neither simple nor easy. Not only does the current pilot program, the Basic Pilot program (Homeland Security rebranded it as E-Verify in August 2007), have unacceptably high error rates that flag work-authorized immigrants and U.S. citizens as ineligible for employment, but also employers have been found to misuse the program to retaliate or discriminate against workers. 2 A mandatory verification system would have a major impact on all workers in this country immigrant and U.S-born alike but it has been viewed narrowly through the lens of immigration enforcement. By ignoring the realities of the program, policymakers dismiss the result that all of their constituents will need to seek approval from the federal government for their livelihood. The current program serves only slightly over 30,000 employers nationwide (only a portion of whom are active users) and faces significant challenges. A mandatory program serving more than five million employers would exacerbate these challenges. What is the Basic Pilot/E-Verify program? What are its weaknesses? What are federal and state proposals to make electronic employment verification systems mandatory? And what would it take to create a program that corrects the flaws of the existing system? 1 Letter from Michael Chertoff, Secretary of Homeland Security, to Sen. Arlen Specter (R-PA) (June 19, 2007) (in my files). 2 For a summary of concerns with the program, see Nat i o n a l Im m i g r at i o n La w Center, Ba s i c Pi l o t/e-verify: No t a Ma g i c Bullet (2007), Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

3 I. Background A voluntary, Internet-based program, Basic Pilot/E-Verify allows employers to verify workers employment eligibility electronically by accessing information in databases maintained by the Social Security Administration and U.S. Citizenship and Immigration Services, the latter a bureau within the Department of Homeland Security. 3 The program was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it began operating in five states in 1997 (California, Florida, Illinois, New York, and Texas). 4 It was expanded to Nebraska in 1999 as a result of Operation Vanguard, which was a workplace enforcement strategy designed to remove undocumented workers from the meatpacking industry. 5 In 2003 Congress extended Basic Pilot/E-Verify to all fifty states and authorized it until November 30, 2008, under the Basic Pilot Program Extension and Expansion Act of Before employers may use the Basic Pilot/E-Verify program, they must sign a memorandum of understanding setting forth the points of agreement among the Social Security Administration, Homeland Security, and the employer regarding the employer s participation in the program. Employers must complete an online training and display a notice at the workplace from Homeland Security indicating the employer s participation in the program and an antidiscrimination notice from the Office of Special Council for Immigration-Related Unfair Employment Practices, a part of the Civil Rights Division at the U.S. Department of Justice. All employers participating in the Basic Pilot/E-Verify program must first complete the Employment Eligibility Verification Form, or I 9 Form, within three days of hire. 7 To enable employers to complete the form, workers are required to produce documents proving their identity and employment eligibility. 8 For each newly hired worker, the employer must enter the worker s information from the I-9 form into a form on the Basic Pilot/E-Verify website within three days of the worker s hire date. The Social Security Administration uses its database to verify that the name, social security number, and date of birth are correct. The agency confirms whether, if the employee claims U.S. citizenship, this is in fact the case. That the employee is in an employment-authorized immigration status is verified by Citizenship and Immigration Services. The employer receives a tentative nonconfirmation notice from the Social Security Administration or Citizenship and Immigration Services if either is unable to verify information presented by the worker. The worker then has the right to contest the tentative nonconfirmation notice and has eight federal government workdays to contact either agency to try to resolve the discrepancy. 9 The agencies then have ten federal government workdays after that to resolve the case. If the worker contacts either agency to resolve the tentative nonconfirmation, the employer is prohibited from terminating or 3 For more information on the entire Basic Pilot/E-Verify process, see Nat i o n a l Im m i g r at i o n Law Center, Ba s i c In f o r m at i o n Brief: DHS Ba s i c Pi l o t/e-verify Pr o g r a m (2007), pdf. 4 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 110 Stat For more information on Operation Vanguard, see INS Questions Nebraska Meatpacking Workers as Part of Operation Vanguard, Immigrants Rights Update, May 28, 1999, 6 Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No , 117 Stat C.F.R 274a.2(b)(ii) (2007). 8 For a list of acceptable documents, see U.S. Citizenship and Immigration Services, Department of Homeland Security, Form I-9, Employment Eligibility Verification, Changes in this form as of November 7, 2007, eliminate these five documents for proof of both identity and employment eligibility: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). 9 8 U.S.C. 1324a (2005). Clearinghouse REVIEW Journal of Poverty Law and Policy n January February

4 otherwise taking adverse action against the worker while awaiting a final resolution from the government agency even if it takes more than ten federal government workdays for the agency to resolve the matter. However, if the worker does not contest the tentative nonconfirmation, it automatically becomes a final nonconfirmation and the employer is required to fire the worker or face a rebuttable presumption that the employer knowingly hired an undocumented worker. As of September 2007, if a worker presents a newer version of an employment authorization document or permanent resident card as proof of employment authorization and identification, the employer is required to use a new photoscreening tool to compare the photograph on the card with a digital photograph stored in Citizenship and Immigration Services database. 10 The employer must use the photo-screening tool only after Basic Pilot/E-Verify confirms the employee s employment eligibility (i.e., after any tentative nonconfirmations are resolved) and only if the worker attests to being a lawful permanent resident or otherwise authorized to work in the U.S. and produces a newer version of the permanent resident card (I-551) or employment authorization document (I-766). II. Concerns The intent of the Basic Pilot/E-Verify program was to toughen workplace enforcement by creating an efficient, secure, and nondiscriminatory system. 11 However, ten years since institution of the program, it still has significant weaknesses undermining its effectiveness. Numerous entities, including the Government Accountability Office and the Social Security Administration s Office of the Inspector General that researched and wrote two independent reports commissioned by the former Immigration and Naturalization Service in 2002 and by Homeland Security in 2007, find that the Basic Pilot/E-Verify program has significant weaknesses such as (1) its reliance on government databases that have unacceptably high error rates and (2) employer misuse of the program to take adverse action against workers. 12 Due to scalability and privacy concerns, technology and civil liberties groups have also raised concerns about Homeland Security s capacity to handle a mandatory system. A. Database Inaccuracies The most recent independent evaluation commissioned by Homeland Security finds that the database used for verification is still not sufficiently up to date to meet the [Illegal Immigration Reform and Immigrant Responsibility Act] requirements for accurate verification. 13 For example, a sizable number of workers who are identified as not having work authorization are in fact authorized, but for a variety of reasons the databases do not have accurate information on them. 10 For more information about the photo-screening tool, see Joan Friedland & Tyler Moran, Photo Screening Tool for Employment Eligibility Verification Likely to Increase Discrimination, Immigrants Rights Update, April 25, 2007, immsemplymnt/ircaempverif/eev010.htm. 11 H.R. Rep. No , at 203 (1996). 12 See Temple University Institute f o r Su r v e y Research & Westat, Fi n d i n g s o f t h e Ba s i c Pi l o t Pr o g r a m Eva l u at i o n (2002), gov/portal/site/uscis/menuitem.5af9bb95919f35e66f f6d1a/?vgnextoid=9cc5d d010vgnvcm f3d6a1RCRD&vgnextchannel=2c039c7755cb9010VgnVCM f3d6a1RCRD; Westat, Fi n d i n g s o f t h e Web-Based Basic Pilot Evaluation (2007) [hereinafter Westat], U.S. Governm e n t Ac c o u n ta b i l i t y Office, Im m i g r at i o n En f o r c e m e n t: Weaknesses Hi n d e r Employer Verification a n d Worksite En f o r c e m e n t Efforts (2005) [hereinafter GAO], Office of the Inspector General, Social Security Administrat i o n, Co n g r e s s i o n a l Response Report: Ac c u r a c y o f t h e So c i a l Se c u r i t y Administration s Nu m i d e n t File (2006) [hereinafter SSA-OIG], Office o f t h e Inspector Ge n e r a l, So c i a l Se c u r i t y Ad m i n - istration, Co n g r e s s i o n a l Response Report: Employer Fe e d b a c k o n t h e So c i a l Se c u r i t y Administration s Verification Pr o g r a m s (2006) [hereinafter Employer Fe e d b a c k], Office o f t h e Inspector Ge n e r a l, So c i a l Se c u r i t y Administration, Co n g r e s s i o n a l Response Report: Mo n i t o r i n g t h e Use o f Employee Verification Pr o g r a m s (2006) [hereinafter Mo n i t o r i n g Programs], See Westat, supra note 12, at xxi. See also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 404g, 110 Stat ( The Commissioners of Social Security and the Immigration and Naturalization Service shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process. ). Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

5 The Social Security Administration s Office of the Inspector General estimates that 17.8 million (or 4.1 percent) of the Social Security Administration s records contain discrepancies related to name, date of birth, or citizenship status that could result in a tentative nonconfirmation from Basic Pilot/E-Verify. 14 Before the House Committee on Ways and Means Subcommittee on Social Security, the agency testified that if Basic Pilot/E- Verify were to become mandatory and the databases were not improved, its database errors alone (not accounting for errors in the Homeland Security database) could result in 2.5 million people a year being misidentified as not authorized for employment. 15 The Department of Homeland Security database is even more problematic because it consists of at least six separate databases within the agency. 16 According to the December 2007 independent evaluation of the Basic Pilot/E-Verify program, 12 percent of all work-authorized noncitizens are verified as employment-authorized by Homeland Security only after two or more attempts at verification. 17 And, due to database errors, foreign-born workers (including those who have become U.S. citizens) are thirty times more likely than native-born U.S. citizens to be incorrectly identified as not authorized for employment. 18 Foreign-born U.S. citizens feel the greatest impact, with 9.8 percent initially being told that they are not authorized to work, compared to 0.1 percent for native-born U.S. citizens. 19 While most tentative nonconfirmation notices are eventually favorably resolved, some work-authorized job applicants are not notified of tentative nonconfirmations or are subject to adverse employment action by their employer before they even have the opportunity to prove that they are indeed authorized to work in the United States. For example, 9.4 percent of employers do not notify workers of a tentative nonconfirmation notice, and 7 percent who give workers the notice do not encourage them to contest because challenging takes too much time. 20 For the worker who is notified of a tentative nonconfirmation, challenging it often results in unpaid time off work to follow up with the appropriate federal agency. At the Social Security Administration, waiting time at field offices can run from two to three hours, with some visits lasting over four hours. 21 It may take more than one trip to fix the error. For example, nearly one-third of the people currently coming into field offices to apply for an original or duplicate social security number have to return with additional documentation. 22 B. Employer Misuse The independent evaluations of Basic Pilot/E-Verify reveal that employers use the Basic Pilot/E-Verify program to en- 14 See SSA-OIG, supra note Hearing on Employment Eligibility Verification Systems Before the Subcommittee on Social Security, House Committee on Ways and Means (2007) (question from Rep. Xavier Becerra (D-Cal.) directed to Steven L. Schaeffer, Assistant Inspector General for the Office of Audit, Social Security Administration Office of the Inspector General). 16 U.S. Department o f Ho m e l a n d Se c u r i t y, Pr i va c y Im pa c t Assessment f o r t h e Verification In f o r m at i o n System Supporting Verification Programs 5, 6 (2007), 17 See Westat, supra note 12, at Id. at Id. at Id. at III Note that the independent evaluation found that when the notices were evaluated using Microsoft Word s readability capability, the notice received a Flesch-Kincaid Grade Level score of 12. The suggested readability level for most documents is a grade level from 7 to 8. See id. at Hearing on Funding Social Security s Administrative Costs Before the Senate Committee on Finance (2007) (statement of Richard Warsinskey, National Council of Social Security Management Associations), testimony/2007test/052307testrw.pdf. 22 Hearing on Administrative Challenges Facing the Social Security Administration Before the Senate Committee on Finance, 109 Cong. 29 (2006) (statement of Richard Warsinskey, National Council of Social Security Management Associations), Clearinghouse REVIEW Journal of Poverty Law and Policy n January February

6 gage in prohibited employment practices. 23 According to the Social Security Administration s Office of the Inspector General, [w]e learned that a significant number of the Basic Pilot employers in our sample verified individuals outside the scope of the signed agreement between the employer, [Social Security Administration, and Homeland Security]. 24 For example, the law requires that employers extend a job offer to a worker and then complete the employment eligibility verification, including the Basic Pilot/E-Verify procedure. In violation of this requirement, 47 percent of employers put workers through Basic Pilot/E-Verify before the employee s first day at work to avoid the potential costs of hiring and training employees who are not eligible to work a practice known as prescreening. 25 This practice is a problem because most workers who receive a tentative nonconfirmation are, in fact, authorized to work. If workers are not hired because of a tentative nonconfirmation and are never informed that there is a problem with their records, they are denied not only a job but also the opportunity to contest database inaccuracies. Moreover, prescreening increases the likelihood that an employer may be discriminatorily selecting people of color or foreign-looking or foreign-sounding individuals for such screening, resulting in increased employment discrimination without them even knowing that they were subjected to this unlawful practice. Employers illegally use Basic Pilot/E- Verify to check on the employment eligibility of their current workforce. The immigration regulations require employers to reverify workers employment authorization in very limited circumstances, such as when their work authorization expires. This has helped minimize the discrimination that may ensue from employers constantly reverifying only noncitizens or from using the reverification system in a retaliatory manner. According to the September 2006 Office of the Inspector General report, 30 percent of Basic Pilot/E-Verify users admitted that they had verified the employment authorization of current employees. 26 Employers take adverse employment action based on tentative nonconfirmation notices; this penalizes workers while they and the appropriate agency work to resolve database errors. According to the 2006 independent evaluation, 22 percent of employers restricted work assignments, 16 percent delayed job training, and 2 percent reduced pay. 27 Some employers assume that any worker who receives a tentative nonconfirmation is undocumented. According to the 2007 independent evaluation, [e]mployees reported that the supervisors assumed that all employees who received tentative nonconfirmation findings were unauthorized workers and therefore took advantage of these employees by requiring them to work longer hours and work in poor conditions. 28 Although employers are prohibited from engaging in these practices under the memorandum of understanding they sign, Citizenship and Immigration Services officials told the Government Accountability Office that their efforts to review and oversee employers use of Basic Pilot/E-Verify had been limited by lack of staff. 29 C. Limits of the Technological Infrastructure Based on their experience with large-scale federal information technology projects that fail under the weight of design flaws 23 GAO, SSA-OIG, and Westat, supra note Employer Fe e d b a c k, supra note Westat, supra note 12, at Mo n i t o r i n g Programs, supra note Westat, supra note 12, at Id. 29 U.S. Go v e r n m e n t Ac c o u n ta b i l i t y Office, Testimony before t h e Subcommittee o n Im m i g r at i o n, Bo r d e r Se c u r i t y, a n d Citizenship, Committee o n t h e Ju d i c i a r y, U.S. Senate, Im m i g r at i o n En f o r c e m e n t: Weaknesses Hi n d e r Worksite En f o r c e m e n t Efforts (2006) (testimony of Richard M. Stana, Director, Homeland Security and Justice), Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

7 Homeland Security and Citizenship and Immigration Services have a bad history of protecting private information, so there is reason for concern. Despite Citizenship and Immigration Services investment in internal security improvements, the agency continues to be open to security vulnerabilities or compromise by outside forces seeking to manipulate the immigration system. 39 Most recently, the Federal Bureau of Investigation was reported to be looking into a technology firm with a $1.7 billion Homeland Security contract after that firm failed to detect cyber-break-ins traced to a Chineselanguage website. 40 The House Oversight and Government Reform Committee gave a D to Homeland Security in comand overambitious goals, technology experts raise concerns about a mandatory verification system. 30 Homeland Security itself reports that Basic Pilot/E-Verify can currently handle twenty-five million queries per year. 31 However, it responded to only two million in If Basic Pilot/E-Verify were to become mandatory, it would need to handle fifty million to sixty million queries per year. 33 A system that works for two million queries cannot simply be scaled up to handle fifty million queries. According to Peter Neumann, principal scientist for SRI International, [i]n general, it is risky to operate a system outside its intended design capacity and rely upon it to work under all circumstances, unless it has been carefully designed and implemented with scalability specifically in mind. Issues relating to inadequate scalability could completely compromise the effectiveness of the resulting system. 34 Each time a system grows even ten times larger, serious new technical issues that were not previously significant arise. 35 D. Potential for Privacy Lapses Privacy advocates raise concern that a mandatory verification system could greatly diminish employee privacy. 36 It may even run afoul of legitimate privacy concerns. 37 According to the American Civil Liberties Union, [a]ny system containing the significant amounts of personally identifiable information required to build the database needed to accomplish employment-eligibility verification and citizenship-verification will be a ripe target for identity thieves and/or those wishing to assume another eligible worker s identity for the purpose of gaining employment Association f o r Co m p u t i n g Ma c h i n e r y, Ma n d at o r y El e c t r o n i c Em p l o y m e n t Verifications Systems: Te c h n o l o g i c a l Im p l i c at i o n s (2007). 31 U.S. Department o f Ho m e l a n d Se c u r i t y, Fa c t Sheet: E-Verify (2007), pdf. 32 U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, Why E-Verify?, site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e94888e60a405110vgnvcm a RCRD&vgnextchannel=e94888e60a405110VgnVCM aRCRD (last visited Nov. 18, 2007). 33 See Bu r e a u o f La b o r Statistics, U.S. Department o f La b o r, Jo b Op e n i n g s a n d La b o r Tu r n o v e r: Fe b r u a r y 2007 (2007), news.release/pdf/jolts.pdf. 34 Hearing on Security and Privacy in the Employment Eligibility Verification System and Related Systems: Testimony Before the Subcommittee on Social Security, House Committee on Ways and Means (2007) (testimony of Peter Neumann, Principal Scientist, Computer Science Laboratory, SRI International, on behalf of the U.S. Public Policy Committee of the Association for Computing Machinery), 35 Id. 36 See, e.g., Hearing on Security and Privacy in the Employment Eligibility Verification System and Related Systems: Testimony Before the Subcommittee on Social Security, House Committee on Ways and Means (2007) (testimony of Marc Rotenberg, President, Electronic Privacy Information Center), 37 Ja m e s Jay Ca r a fa n o, Workplace En f o r c e m e n t to Co m b at Illegal Mi g r at i o n: Sensible Strategy a n d Pr a c t i c a l Options (2006), www. heritage.org/research/nationalsecurity/hl957.cfm. 38 Tim Spa r a pa n i, ACLU Me m o to Interested Persons Re g a r d i n g Problems w i t h Em p l o y m e n t Eligibility Verification Legislative Pr o p o s a l s (2005), 39 See H.R. Rep. No , at 101 (2007). 40 Ellen Nakashima & Brian Krebs, Contractor Blamed in DHS Data Breaches, Wa s h i n g t o n Po s t, Sept. 24, 2007, at A1. Clearinghouse REVIEW Journal of Poverty Law and Policy n January February

8 puter security for 2006 (up from an F for the previous three years). 41 E. Discrimination that Could Result from the Photo-Screening Tool As discussed above, when an immigrant worker chooses to present a recent version of a permanent resident card (I-551) or employment authorization card (I-766) as part of Form I-9 employment eligibility verification, the Basic Pilot/E-Verify photo-screening tool is activated. However, the worker may still choose which documents to present. The employer is then required to compare the photograph on the card against an official Citizenship and Immigration Services photograph that appears on the employer s computer screen via Basic Pilot/E-Verify and to determine that (1) the photo matches, or (2) the photo does not match, or (3) the employer cannot tell if there is a match. Employers are asked to determine if the photographs are reasonably identical, but 100 percent certainty is not required. The worker then has an opportunity, as in regard to a tentative nonconfirmation notice, to contest any findings. Because the photo-screening tool applies only to immigrants, it subjects them to an extra employment eligibility verification procedure that does not apply to other workers and likely leads to increased discrimination against lawful immigrants and possibly even naturalized U.S. citizens. Employers may be unreasonably suspicious about immigrant workers who do not present a permanent resident card or employment authorization document and may assume that workers are not presenting these documents to avoid a photo screening. This could lead to employers violating the Immigration and Nationality Act s antidiscrimination document abuse provisions, which prohibit employers from demanding more, or more specific, documents from workers than the law requires to prove their employment authorization. 42 The photoscreening program creates an incentive for employers, particularly those who want to protect themselves against claims that they hire undocumented workers, to require immigrant employees to present either a permanent resident card or an employment authorization document since these are the only documents that can be checked with the new tool. The program may also lead employers to refuse to hire noncitizens who present an older document since only newer versions of the permanent resident card and employment authorization document can be used for the photo-screening tool. Employers may be unreasonably suspicious that citizens who look or sound foreign are claiming to be U.S. citizens to avoid a photo screening. The Basic Pilot/E-Verify manual recognizes that certain factors such as the quality of the employer s computer monitor, the age and wear of the Homeland Security issued document, and whether the employer is comparing a copy of the employee s document with the image on the screen may cause variances between the images from the Citizenship and Immigration Services website and those on the document presented by workers. Some overly cautious employers may reject these workers. Without a clear standard for employers to apply in comparing the image on their computer screen with the one on the document that a worker presents, some employers are likely to reject wrongly an employment-authorized person s documentation. III. Federal Proposals to Expand the System At least twelve bills pending in the House and Senate would create a mandatory electronic employment verification system for some or all employers. The two most significant proposals introduced in the House and Senate in 2007, however, were part of comprehensive immigration reform bills that failed. While both the Security Through Regularized Immigration and a Vibrant Economy (Strive) Act 41 To m Dav i s, U.S. Ho u s e o f Representatives Committee o n Oversight a n d Go v e r n m e n t Re f o r m, Seventh Report Ca r d o n Computer Se c u r i t y at Fe d e r a l Departments a n d Ag e n c i e s (2007), 42 For information on the Immigration and Nationality Act s antidiscrimination provisions, see Marielena Hincapié, Growing Immigrant Communities Face Increased Employment Discrimination, 36 Clearinghouse Review 249 (July August 2002). 516 Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

9 of 2007 (H.R. 1645) and the Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 (S. 1649) include a mandatory electronic verification system, the bills are quite different. 43 Most notably the Strive Act makes a real attempt to correct the shortcomings of Basic Pilot/E-Verify by including benchmarks and privacy, antidiscrimination, and due process protections. 44 A. The Strive Act Although the Strive Act is not likely to be debated further in Congress, analyzing its verification system provisions is helpful because they represent the best legislative effort to date to remedy Basic Pilot/ E-Verify s shortcomings. 45 Although not all of the Strive provisions are workable, the bill does put the onus on the government to fix its databases and provides protections for workers who could be irreparably harmed by an incorrect finding on their work eligibility. Unfortunately, some policymakers misrepresent many of the Strive provisions that, for example, create necessary antidiscrimination protection and due process protection as weakening a mandatory verification system. Thus, when similar measures were introduced as an amendment to S. 1649, Chertoff claimed that the proposal was a serious step back in our enforcement efforts and that illegal workers will still be drawn across our borders by the lure of easy employment. 46 To rectify Basic Pilot/E-Verify s inadequacies, the Strive Act requires the following. 1. Benchmarks for System Performance Before the verification system is implemented (and before any subsequent phase-in), the comptroller general must study and certify that certain standards have been met, including database accuracy, measurable employer compliance with the verification system requirements, protection of workers privacy, and adequate agency staffing and funding. In conducting the studies, the comptroller general must consult with representatives from immigrant communities, among others. 2. Protection Against Discrimination Policies The Strive Act amends Section 274B of the Immigration and Nationality Act on immigration-related unfair employment practices in order to apply explicitly to employment decisions related to the new verification system. 47 The Strive Act prohibits employers from misusing the verification system, increases fines for violations, brings the Immigration and Nationality Act into line with other civil rights laws, such as Title VII of the Civil Rights Act, and provides funding to educate employers and employees about antidiscrimination policies. 3. Privacy Protection The Strive Act requires that information in the verification system be safeguarded and that only minimum data elements be stored. The Act creates penalties for unlawfully accessing the verification system and for using information in the system to commit identity theft for financial gain. 43 S is the amended and renumbered reversion of S. 1348, the Secure Borders, Economic Opportunity and Immigration Reform Act of The working title on the Library of Congress website is still A bill to provide for comprehensive immigration reform and for other purposes. 44 Note that this analysis of the Security Through Regularized Immigration and a Vibrant Economy (Strive) Act and S is limited to electronic employment verification systems and not to other areas of the immigration bills that are of concern to the National Immigration Law Center. For more information about the law center s overall analysis of these bills, see National Immigration Law Center, Immigration Law and Policy: Comprehensive Immigration Reform, org/immlawpolicy/cir/index.htm (last visited Nov. 20, 2007). 45 For a summary of the electronic employment verification system provisions in the Strive Act, see Nat i o n a l Im m i g r at i o n Law Center, Employment Eligibility Verification System in the Strive Act of 2007 (2007), eevs_ pdf. 46 See supra note U.S.C. 1324b. Clearinghouse REVIEW Journal of Poverty Law and Policy n January February

10 4. Due Process Provisions The Strive Act requires that workers can view their own records and correct or update information in the verification system. Homeland Security also must establish a twenty-four-hour hotline to receive inquiries from workers and employers concerning determinations made by the verification system. The Strive Act creates an administrative and judicial review to challenge a finding that a worker is not authorized for employment (a final nonconfirmation ). If, after the review, the worker is found to be authorized for employment and the error was Homeland Security s, the worker is entitled to back wages, though not for any period that the worker was unauthorized for employment. 5. Annual Study and Report The Strive Act requires the comptroller general to conduct annual studies that are to be submitted to Congress and that determine whether the verification system meets the following conditions: demonstrated accuracy of the databases; low error rates and incidences of delays in verification; measurable employer compliance with verification system requirements; protection of workers private information; adequate agency staffing and funding for the Social Security Administration and Citizenship and Immigration Services. Unfortunately the Strive Act also contains provisions that would limit its workability. First, the Act significantly limits the documents that individuals, when seeking employment, may present to prove their identity. Of most concern is the requirement that workers present documents that do not yet exist, such as a Real ID compliant driver s license and a biometric, machine-readable, tamperresistant social security card. 48 Former Social Security Administration Commissioner Jo Anne B. Barnhart testified in July 2006 that the cost of issuing new cards with enhanced security features could cost approximately $9.5 billion and require 67,000 work years. 49 Second, the Strive Act requires the Social Security Administration to disclose private taxpayer identity information of employers and employees to Homeland Security when such information is requested. Use of confidential tax information to enforce immigration law can have a negative effect on tax compliance and has the potential to increase discrimination against foreign-looking or -sounding workers. Third, administrative review does not provide for attorney fees for workers even though employers may recover up to $50,000 in attorney fees when they challenge a finding that they violated immigrant law. Low-income workers are far less equipped to represent themselves or retain legal counsel, and the availability of fees is critical to their ability to pursue their rights. The Strive Act also prohibits a private right of action, which also would drastically limit workers ability to correct abuses and errors of the system. B. The Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007 Although the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007 (S. 1639) was the key immigration reform bill that was debated in the Senate in 2007, it failed to garner enough support to proceed. On June 28, 2007, the Senate voted 46 to 53 not to continue debate on the bill and moved on to other issues. Even though the bill is dead, analyzing its provisions is critical because they will be more likely than the Strive Act s provisions to be part of any mandatory electronic employment verification system bill that moves in Con- 48 In May 2005 Congress passed the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No , 119 Stat. 231 (2005). Division B of the law, Real ID Act of 2005, forbids federal agencies from accepting for any official purpose a state-issued driver s license or identification card unless the issuing state complies with Real ID requirements. Id. For a summary of provisions in the Real ID Act, see Nat i o n a l Im m i g r at i o n La w Center, Su m m a r y o f t h e Dr i v e r s Li c e n s e Pr o v i s i o n s in t h e REAL ID Ac t o f 2005 a s Ma d e Pa r t o f t h e Em e r g e n c y Supplemental Appropriations Ac t f o r Defense, t h e Gl o b a l Wa r o n Terror, a n d Ts u n a m i Relief (2005), tbl_ pdf. 49 Hearing Before the House Committee on Ways and Means (2006) (testimony of Jo Anne B. Barnhart, Commissioner, Social Security Administration), Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

11 gress. S falls well short of creating a workable verification system because the focus is on getting the system up and running as quickly as possible rather than on implementing an accurate system that actually works without adversely affecting authorized workers. Concerns with S include the following. 1. The Implementation Timeline Is Unreasonable and Unworkable All employers must participate in the verification system within eighteen months of enactment with respect to new hires and those with expiring work authorization documents or immigration status, and within three years all employers must use the verification system for all new and continuing employees who have not presented secure documentation. This rigid timetable must be met whether or not the verification system actually works and whether the technology exists to implement it; and the timetable is not subject to performance benchmarks. 2. The Antidiscrimination Protections Are Weaker than Current Law Current law regarding impermissible uses of the verification system would be weakened under the Senate bill because the bill specifically prohibits these impermissible practices from being covered under the antidiscrimination protections in the Immigration and Nationality Act by giving Homeland Security exclusive enforcement authority and funding. Section 274B of the act prohibits discrimination based on national origin and citizenship status and provides a process for complaints, investigations, administrative and judicial review, and remedies. 50 Homeland Security s policy is unlikely to include such procedures since the agency has no expertise in this area. 3. The Due Process Protections Are Insufficient Under the administrative review provisions, a final nonconfirmation is stayed pending the administrative review decision unless the Social Security Administration or Homeland Security decides that the petition for review is frivolous, unlikely to succeed on the merits, or filed for purposes of delay. This means that the agency whose administrative decision is being appealed has sole authority to issue or deny a stay of a nonconfirmation notice while an appeal is pending. The legislation does not provide a method for recovery of back pay, costs, or attorney fees for those who are wrongfully terminated due to agency database errors, including where the agency fails to issue a stay during appeal. Workers can seek judicial review in a federal court of appeals. However, the court can decide the petition based only on the administrative record, which may be limited. Moreover, the standard for review of factual findings is extremely deferential. 4. The Documentation Requirements Are Unattainable Like the Strive Act, the documentation requirements are heavily focused on state compliance with the Real ID Act and a biometrically enhanced social security card. 5. Employers, State and Federal Government Agencies, and the Social Security Administration Are Required to Turn over Confidential Information About Workers to Homeland Security The bill permits data mining of social security files, tax records, and other federal, state, and territorial databases covering everyone in the United States. The provisions do not require independent review, monitoring of disclosure, privacy protections, notice to workers that their private information or records have been disclosed, or recourse if overbroad information is sought or misused. C. Administrative Changes Among a package of new immigration enforcement policies introduced by the Bush administration in August 2007 were proposals to expand Basic Pilot/E-Veri- 50 See Hincapié, supra note 42. Clearinghouse REVIEW Journal of Poverty Law and Policy n January February

12 fy. 51 Although all are currently not implemented, the announced changes include making Basic Pilot/E-Verify mandatory for new federal contractors and vendors; verifying certain documents with the U.S. Department of State; seeking access to state motor vehicle databases; and reducing the number of documents that may be used to prove employment eligibility and identity. 52 IV. State and Local Electronic Employment Verification System Proposals In 2007 more than sixty bills were introduced in twenty states affecting use of the Basic Pilot/E-Verify program for electronic employment verification. These proposals were often part of larger antiimmigrant packages dealing with such issues as employment, housing, public benefits, and education. 53 All bills on electronic employment verification, except in Illinois, mandate that some or all employers use the Basic Pilot/E-Verify program. Although most of these bills did not advance far, four were signed into law in Arizona, Oklahoma, Tennessee, and Georgia. The impetus behind many of the state and local policies was frustration with the federal government s inability to act on a comprehensive immigration reform bill. In fact, directly after Arizona passed its law, Gov. Janet Napolitano sent to House Speaker Nancy Pelosi and Majority Leader Harry Reid a letter stating that the Senate once again failed to take action on comprehensive immigration reform. One of the practical effects of this failure is that Arizona, and states across the nation, must now continue to address this escalating problem on their own. 54 After signing Oklahoma s law, Gov. Brad Henry said, States can take some actions on their own, but until the U.S. Congress enacts a comprehensive, national immigration policy, citizens will see little progress on this issue. 55 A. Laws and Resolutions to Make Basic Pilot/E-Verify Mandatory Arizona, Oklahoma, and Tennessee in 2007 passed laws mandating that some or all employers use Basic Pilot/E-Verify. 56 The Arizona law requires all businesses in the state to use Basic Pilot/E-Verify for each new hire, and it provides a safe harbor to employers who, while using Basic Pilot/E-Verify, are found to have hired unauthorized immigrants. 57 The Oklahoma law requires all businesses with state contracts to use Basic Pilot/E-Verify. 58 Tennessee s law protects businesses from being found to have hired unauthorized 51 Wh i t e Ho u s e Office o f Co m m u n i c at i o n s, Im p r o v i n g Bo r d e r Se c u r i t y a n d Im m i g r at i o n Within Existing La w (2007), immlawpolicy/misc/dhs-admin_imm_measures_ _10.pdf. 52 For more information on the Administration s proposal, see my E-Verify: DHS Announces Changes to Electronic Employment Eligibility Process, Immigrants Rights Update, Oct. 5, 2007, htm#readmore. 53 For more information on state and local antiimmigrant policies, see Nat i o n a l Im m i g r at i o n La w Center, Stat e a n d Lo c a l Policies o n Im m i g r a n t Ac c e s s to Services: Pr o m o t i n g Integration o r Is o l at i o n? (2007), statelocalimmpolicies06-07_ pdf. 54 Letter in my files. 55 Governor Signs Sweeping Immigration Reform Bill, Jo p l i n Gl o b e, May 9, 2007, story_ html. 56 For more information about state employment eligibility verification laws that passed in 2007, see Raymond Rico, Most State Bills Mandating Use of the Employment Eligibility Verification Basic Pilot/E-Verify Fail in 2007, Im m i g r a n t s Ri g h t s Update, Oct. 5, 2007, 57 For more information about the Arizona law, see my New Arizona Law Requires Employers to Use Flawed Employment Eligibility Verification Basic Pilot/E-Verify, Immigrants Rights Update, July 20, 2007, eev011.htm#readmore. 58 The Oklahoma law s Basic Pilot/E-Verify provisions are part of a larger antiimmigrant package that deals with in-state tuition for undocumented immigrants, access to drivers licenses, identity documents, and school identification documents, creates a state harboring scheme, and authorizes local law enforcement to enter into a memorandum of understanding with the Department of Homeland Security regarding the enforcement of federal immigration laws in Oklahoma. For more information on Oklahoma s law, see Dav i d Bl at t, Interpreting HB 1804: A Gu i d e to Un d e r s ta n d i n g Ok l a h o m a s New Stat e Immigration Bill (2007), Clearinghouse REVIEW Journal of Poverty Law and Policy n January February 2008

13 immigrants if the businesses verified, by using Basic Pilot/E-Verify, the employment eligibility of workers before employment. Tennessee s requirement that employers use Basic Pilot/E-Verify before hire is contrary to federal law, which allows use of Basic Pilot/E-verify only after hire. Georgia also enacted a law expanding on its 2006 law and requiring employers with state contracts to use Basic Pilot/E-Verify. The 2007 law exempts businesses from tax penalties for hiring undocumented immigrants if the businesses verified, by using Basic Pilot/E- Verify, the employment eligibility of workers. The Arizona and the Tennessee laws prohibit employers from hiring unauthorized workers and create state employer penalties for those who do so. A number of localities at the city and county level introduced proposals to require employers to use Basic Pilot/E- Verify. 59 Although most proposals failed, at least one was enacted in The City of Mission Viejo in California passed an ordinance requiring the city to use Basic Pilot/E-Verify for all of its employees and requiring businesses with public contracts or services that exceed $15,000 to use the system. 60 B. Legal Challenges to Employment Verification Laws That Congress enjoys plenary power over immigration has long been recognized. In 1986 Congress enacted the Immigration Reform and Control Act of 1986, which, for the first time, made employment of unauthorized immigrants illegal and imposed sanctions against employers who knowingly or intentionally violate federal law. The Act mandates that its provisions imposing penalties on employers that hire unauthorized workers preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 61 As a result of this comprehensive federal employment scheme, any attempt by states to regulate the employment of unauthorized workers should be preempted by federal law. 62 For example, on July 26, 2007, immigrant rights advocates celebrated a major victory when a judge from the U.S. District Court for the Middle District of Pennsylvania struck down a Hazleton, Pennsylvania, ordinance banning the employment of unauthorized immigrants; the district court s decision was largely based on a conclusion that the ordinance was federally preempted. 63 The judge specifically cited the Immigration Reform and Control Act s prohibition on states and localities passing laws regarding the employment of undocumented workers and found that [a]llowing States or local governments to legislate with regard to the employment of unauthorized aliens would interfere with Congressional objectives. 64 The legal theory behind laws that require mandatory participation in Basic Pilot/E-Verify is the same. Because Congress created the Basic Pilot/E-Verify program as a temporary and voluntary program, state attempts to make it mandatory and permanent are preempted by federal law. Following the Hazleton decision, a lawsuit challenging Arizona s Basic Pilot law on behalf of two organizations, Chicanos Por La Causa and Somos America, was filed on September 4, The 59 For a summary of the range of antiimmigrant ordinances introduced at the local level, see Fa i r Im m i g r at i o n Re f o r m Movement, Database on Recent Local Ordinances on Immigration (2007), firm_ordinance.doc. 60 Mission Viejo, Cal., Ordinance (March 19, 2007) U.S.C. 1324a(h)(2). 62 For more information on federal preemption, see Mo n i c a Gu i z a r, Fa c t s Ab o u t Fe d e r a l Preemption: Ho w to An a ly z e Whether State and Local Initiatives Are an Unlawful Attempt to Enforce Federal Immigration Law or Regulate Immigration (2007), org/immlawpolicy/locallaw/federalpreemptionfacts_ pdf. 63 For more information about the Hazleton decision, see Joan Friedland, Hazleton, Penn., Anti-Immigrant Ordinances Preempted and Unconstitutional, Federal Court Finds, Im m i g r a n t s Ri g h t s Update, Oct. 5, 2007, LocalLaw/locallaw005.htm. 64 Lozano v. City of Hazleton, No. 3:06v1586, 2007 U.S. DIST. LEXIS (M.D. Pa. July 26, 2007). Clearinghouse REVIEW Journal of Poverty Law and Policy n January February