Electronic Employment Eligibility Verification Program - Issues

The 110 th Congress convened January 4, 2007 and is likely to take up comprehensive immigration legislation in the coming weeks. Broader immigration reforms, such as a guest worker program and whether or not to grant amnesty to the 12 million undocumented aliens currently living and working in the U.S. will have an impact on all employers. But, the issue most likely to affect human resources professionals is worksite enforcement.

Legislation proposed during the 109 th Congress included a provision for an electronic employment eligibility verification program (EEVP). The framework for this proposal is the current “Basic Pilot” program. Participation in the Basic Pilot is voluntary and approximately 11,000 employers are currently participating with about 200 more employers signing up each month.

Participants in the Basic Pilot enter the Social Security number or the number on the employee’s I-94 card (issued when seeking admission into the U.S.) into a web-based system that automatically checks either the Social Security or Homeland Security databases for a match. Queries must be made within three days of hire and the system is required to respond within 3 days.

If the automated system cannot verify the worker’s eligibility it’s passed to human hands and the status is checked manually – again within three days. If there is still no verification, the employer receives a tentative non-confirmation. The employee then has eight days to contest the results. The government is supposed to provide a final response within 10 days from the tentative non-confirmation. Employers must keep employees on the payroll during this time. These time frames are important when considering expanding the Basic Pilot to all 7.5 million employers.

Another factor to consider is the error rate. Estimates of initial no-matches range from 14-20 percent. When extrapolated out to all employers, this is a very large number requiring a good deal of human intervention. And, what happens if an individual is wrongly categorized as ineligible to work in the U.S.?

In considering an EEVP, there are numerous issues for employers to consider:

Basic Pilot: (DRAFT NUMBERS)

Initial inquiry – 3 days

Initial response – 3 days

If negative, goes to human hands for manual confirmation – 3 days

If still no confirmation employee has 8 days to contest results

Government is supposed to provide final confirmation/non-confirmation 10 days after tentative non-confirmation

1. Cost
   • Cost of the system – in fiscal year 2007, $135 million was budgeted for the Basic Pilot program’s expansion. However, if the Basic Pilot is expanded to cover all employers, the cost is likely to be in the neighborhood of $11 billion. (Institute for Survey Research at Temple University (2002), sited in Workforce Management Magazine, April 10, 2006).
   • Cost to employers – although not currently in any proposal, there has been discussion about charging employers a fee to use the system – either a flat fee or an inquiry-based fee.
2. Setting up the System
   • Does the technology currently exist to expand the current program from 11,000 employers to 7.5 million?
   • How will long will employers have to begin using the system? If all employers begin at once it could be problematic, other proposals to stagger implementation beginning with the largest employers first, or with state and local governments, could also be problematic.
   • Who will be covered – new hires only, new hires and re-verify all current workers, or re-verify workers in safety-sensitive positions – how will safety-sensitive (or critical infrastructure) positions be defined?
3. Timeframe for verification
   • The Basic Pilot and the proposals in the 109 th Congress require employers to conduct the employment eligibility check only after the employee is hired. Therefore, the timeframe for confirming eligibility is important because this employee may be going through training, and is on the payroll the entire time the check is being made.
   • In the 109 th the Senate version required the government to issue a final confirmation or non-confirmation after 30 days of issuing a tentative non confirmation notice. The Senate bill* anticipates requiring the system to be accurate 99 percent of the time before issuing final nonconfirmation notices.
4. Documents to be used to verify employment
   • The current I-9 lists documents that can be used to establish eligibility to work in the U.S. and identity. The Senate proposal anticipates U.S. nationals using a passport or REAL ID, and others using their authorization cards. The House had no provision. Some groups have advocated the creation of biometric card that would contain data for employment eligibility purposes only – the technology does not currently exist.
   • Several employer groups would like to limit the number of documents that can be used to verify employment eligibility/identification to reduce the burden on employers who must determine whether or not the document is valid.
   • Should employers be required or permitted to copy documents used to verify employment?
   • Currently employer attestations must be kept for 1 year after termination or 3 years after date of hire, whichever is later. Senate proposal suggests 5 years after hire or 1 year after termination.
5. Enforcement
   • Senate proposal suggests that employers be liable for hiring or continuing to employ an unauthorized worker if the employer does so “Knowingly or with reckless disregard.” The proposal also provides a defense of good faith compliance with document verification and EEVP.
   • Senate’s proposed penalties for violations ranged from $500-$4,000 with repeat violators subject to fines of $4,000-$20,000. House suggests fines ranging from $5,000-$75,000 with repeat violators subject to fines ranging from $10,000 to $40,000 – with a reduction for small employers.
   • Criminal penalties including jail time are established for employers who engage in a pattern or practice of knowingly violating the law.
   • Paperwork violations – both House and Senate proposals contain slightly-smaller penalties for paperwork violations. Some employer groups suggest providing employers time to cure paperwork violations.
   • Senate bill created a fund where money from fines is deposited and used for further enforcement efforts.
   • Senate bill allows an employer to recover costs and attorneys fees if it prevails on the merits of a claim.
   • Senate bill allows employees wrongly denied employment to recover lost wages from the government.
   • Senate bill prohibits employers from requiring employees to post indemnity bonds
   • Senate bill authorized 2200 more worksite enforcement investigators each year for 5 years.
   • Civil Rights – Civil rights of workers who receive non-confirmations will be an issue. The 1986 legislation creating the I-9 system had several provisions designed to prevent discrimination based on national origin. Employers run the risk of being sued by potential employees for discrimination and of being investigated for noncompliance with the EEVP if they hire undocumented workers.

*Senate bill refers to the bill introduced during the prior session of Congress – S. 2611, this page will be updated when a new comprehensive bill is introduced. Two worksite enforcement bills have been introduced in the 110 th Session of Congress – H.R. 19 and H.R. 98