The question is whether the electronic verification mechanism that the government has been pushing the private sector to adopt—Basic Pilot—will survive the legislative process.
Immigration activity has spiked. Senate Majority Leader Harry Reid, D-Nevada, has scheduled a vote for Monday, May 21, to begin a debate in that chamber. The basis for the deliberations will either be a comprehensive bill approved by the Senate last year or a bipartisan measure that Democrats, Republicans and the White House have been trying to forge for weeks.
Last year, the House and Senate failed to reconcile their immigration bills.
The 2006 Senate measure included a mandatory electronic employment verification system that would utilize government databases. This year’s bipartisan Senate negotiations are leading toward an electronic verification system that builds on Basic Pilot, according to Laura Reiff, co-chair of the Essential Worker Immigration Coalition. Reiff says the business community is stressing that the new system must work before all employers are required to use it.
Coming to grips with employer verification is one of the many obstacles Congress faces on the winding and treacherous road toward comprehensive immigration reform.
Basic Pilot, a Web-based system that checks new-hire information against Social Security and Department of Homeland Security databases, has been widely criticized as inefficient and ineffective.
A Web-based system that checks new-hire information against Social Security and Department of Homeland Security databases, it has been widely criticized as inefficient and ineffective by the business community.
The first piece of comprehensive legislation, a House bill written by Reps. Luis Gutierrez, D-Illinois, and Jeff Flake, R-Arizona, does away with Basic Pilot and replaces it with a system that verifies employment by using machine-readable, tamper-resistant documents such as secure driver’s licenses containing physiological proof of identity like a fingerprint or retina scan.
Nevertheless, Basic Pilot did not lack for defenders during recent congressional hearings. Its advocates admitted that the system has flaws, but says improvements were being made as more employers register.
One prominent Basic Pilot customer, however, is not satisfied. An official at Swift & Co., the nation’s third-largest meat processing company, testified before Congress on April 24 that the corporation was burned by Basic Pilot.
Despite participating in the verification system, Swift was the subject of a December 12 raid by Immigration and Customs Enforcement at six of its facilities, which led to the arrest of 1,282 employees on immigration violations.
The alleged culprits used false identities to pass as legal workers, a situation that Basic Pilot is not equipped to detect. In a Capitol Hill appearance, John Shandley, Swift senior vice president for human resources, said the disruption to Swift’s operations cost the company $30 million.
The dollar amount, however, was not what galled Shandley the most. It was the fact that government immigration officials refused to work with Swift to resolve the situation before a raid was necessary.
"All attempts to generate a collaborative solution were repeatedly rebuffed under the guise of an ‘ongoing criminal investigation,’ " Shandley says at a hearing of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law.
The Department of Homeland Security, which houses ICE, has stepped up employer enforcement during the past year, sometimes pursuing criminal cases against executives. It has not filed a charge against Swift.
Shandley is frustrated that the company was swept up in the new DHS enforcement push. "You comply with all the laws of the land but you still get hammered," he says. "It is a systemic failure."
He received a sympathetic nod from Rep. John Conyers, D-Michigan and chairman of the House Judiciary Committee, who says Shandley’s testimony was constructive.
"I’m glad that you didn’t bring a hard attitude to the hearing or have a chip on your shoulder," Conyers told him.
Shandley responded, "The chip is buried deep inside right now."
Conyers’ appearance at the subcommittee meeting demonstrated the political priority he is putting on verification policy as the House works its way toward a comprehensive bill.
He also made clear that immigration reform would have to include a verification system that won’t produce another result like the Swift raid.
"What is the point, if you’re going to get busted for trying to comply and comport with the laws?" he asked.
The chairwoman of the House subcommittee and the point person for House immigration legislation, Rep. Zoe Lofgren, D-California, shared a personal anecdote on frustration with Basic Pilot.
When Lofgren tried to hire Traci Hong as the subcommittee’s legislative counsel, the system gave Hong a tentative nonconfirmation despite the fact that she has been a U.S. citizen for 15 years.
Hong, an immigration lawyer, had to make multiple trips to the Social Security and House personnel offices over the course of eight days to solve the problem. She and her boss wondered how many other legal immigrants—with far less background and fewer resources than Hong—were being rejected by the system.
"These are the real-life consequences we started thinking about," Hong says.
But Lofgren isn’t necessarily going to try to jettison Basic Pilot. She has scheduled a number of subcommittee hearings to delve into all aspects of immigration reform and hear from all sides.
In one of those meetings, Jock Scharfen, deputy director of U.S. Citizenship and Immigration Services, defended Basic Pilot, noting that 16,000 employers are participating.
Companies will use the system to verify more than 3 million new hires at 71,000 work sites this year. Scharfen says more than 92 percent of employer queries receive employment authorization within three seconds.
In recent weeks, Basic Pilot has added a mechanism that incorporates green card and employment authorization photos so employers can check the photos on documents presented by new hires.
The photo tool, which is designed to combat identity fraud, is being tested with 40 companies and will be rolled out in the coming months. The immigration service received a $114 million appropriation from Congress for the current fiscal year to bolster the system.
One question regarding Basic Pilot is whether it has the wherewithal to ramp up its current search capacity of 25 million employees to 53 million, if it were to become a mandatory system.
"We think we can do that in short order," Scharfen told the subcommittee.
The highest-ranking Republican on the panel offered support for the system, even though he says it can be improved.
"The Basic Pilot program has been remarkably successful," says Rep. Steve King, R-Iowa.
In another of the subcommittee’s hearings, the congressional author of the legislation that created Basic Pilot asserted that it is the best foundation for employer verification because Congress has voted for it three times since 1997.
"To create a new program from scratch would be a step backward that would be hard to explain to budget-conscious American taxpayers," says Rep. Ken Calvert, R-California. "It’s a system that works, and it’s a system that employers want to use."
A coalition of human resource organizations, including the Society for Human Resource Management and the HR Policy Association, disagrees with that conclusion and is pushing to replace Basic Pilot. The groups have formed the HR Initiative for a Legal Workforce to influence the verification debate.
The initiative is lobbying for what it calls a secure electronic employment verification system that utilizes biometric information provided by private-sector companies.
Individuals would give their personal data to vendors that are certified by the Department of Homeland Security. They would then receive a card that employers could process to determine whether the new hire is eligible to work in the United States.
Placing biometric information in a private database could help to ease privacy concerns like those raised by Jim Harper, director of information policy studies at the Cato Institute, a Washington think tank.
In testimony before the subcommittee, Harper warned of the dangers of a centralized biometric database run by the government. Such a mechanism, for instance, might allow the Internal Revenue Service to track someone’s job history to determine how much they owe in taxes. He asserted that the current "sloppy" paper-based I-9 system would be preferable.
It’s more important that eligible workers be allowed to obtain jobs—and more legal workers let into the country—than it is to keep illegal immigrants out of the workforce, Harper argued.
In an electronic system, the goal is to ensure "security without surveillance," Harper says. But that’s difficult to guarantee.
"If you have employer verification, the sloppy system we have now is the best accommodation to the human interests at stake," Harper says. "If you build this hardened [electronic] system, it’s bad for American workers."
Of course, the I-9 forms cause their own headaches for employers, who likely would prefer some kind of electronic verification system. But it should be one with fewer nonconfirmations than Basic Pilot currently permits, according to one business lobbyist.
"Even with a 1 percent error rate, you’re talking about disqualifying millions of Americans from their livelihood," Randel Johnson, vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce, testified before the subcommittee.
Johnson also recommended that a new electronic verification system be phased in, limited to new hires and paid for by the government rather than by employers. He also says employers should not be liable for hiring violations by subcontractors.
Perhaps the biggest challenge of reforming verification policy is that it requires the government, employers and employees to enter a new kind of relationship, according to Lofgren.
"We need to sort through all those issues," she says.