As immigration reform becomes a major issue in this country, a lot of discussion centers on what role the employer has in verifying the work eligibility status of employees they hire. Last year President George Bush stated, "Business owners shouldn’t have to act like detectives to verify the legal status of their workers. So my administration has expanded a program called Basic Pilot. This program gives business access to an automated system that rapidly screens the employment eligibility of new hires against federal records. Basic Pilot was available in only six states five years ago; now this program is available nationwide."
So far, the Basic Pilot Program has not replaced the I-9 form system, but it has added another layer to the eligibility verification process for participating employers. After completing I-9 forms for new hires and within three days of the hire date, the employers query the pilot program’s web site, using information provided on the I-9s.
The pilot program electronically matches that information against Social Security Administration and, if necessary, Department of Homeland Security (DHS) databases to determine whether the employee is eligible to work. Participating employers then are notified when employees’ work authorization is confirmed.
If the pilot system cannot confirm an employee’s work authorization status through an automatic or manual check, a tentative nonconfirmation of the employee’s work authorization status is issued. The employers must notify affected employees of the finding.
Recent immigration reform legislation under consideration by Congress would require all employers to use the electronic verification system to check the employment eligibility of workers. The Senate and the House bills agree on the need for an electronic system to verify employment eligibility but differ in the details.
Potential Problems
The timeline of the verification process outlined in one version is problematic at best, according to human resource experts familiar with the issue. The verification of a new hire could take up to 43 days under the bill being considered; thus if the DHS ultimately concludes the new hire isn’t eligible to work in the United States, the employer would have to fire an individual who has already worked over a month for them. This could bring up a whole level of new issues such as health care, workers’ compensation and COBRA coverage—not to mention training expenses.
Employers have expressed concerns that:
Expanding the Basic Pilot system to cover all employers in two years is likely to cause confusion, to deny employment opportunities and to incur significant employer penalties.
The use of an electronic verification system in addition to the I-9 process will significantly increase, not decrease, the amount of staff time and resources that an employer must spend in the verification process.
Reverification of existing staff will result in a huge investment of time and money by HR professionals for employers that already complied with existing verification requirements.
Even inadvertent paperwork violations may result in steep penalties.
Greater Penalties for Employers
The accuracy of an electronic-based verification system is a concern. Several thousand U.S. employers currently participate in a volunteer pilot project for electronic verification, and the program’s error rate of 15 percent has raised skepticism about whether a nationwide verification system would work effectively. A faulty verification system could be a huge headache for employers, because both chambers’ immigration bills increase the fines and criminal penalties for U.S. employers that hire undocumented workers.
The civil penalties for violations include fines up to $25,000 and an employer found to have engaged in a pattern or practice of violations could be subject to criminal penalties, including imprisonment.
