Immigration and Aggravation

Everyone agrees that today's employment-verification process is cumbersome and unreliable. While a vigorous debate has ensued over how to fix it, employers remain caught in the middle.

Sunday, July 1, 2007
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Employment verification sounds straightforward enough: Examine a few documents to check new hires' identities and see if they're allowed to work in the United States. Nevertheless, the process -- performed daily at millions of worksites -- can be anything but simple.

With a steady stream of illegal immigrants entering the country in search of work, the I-9 process, named for the government form employers must fill out for each new employee, is fraught with difficulty. Human resource departments are often caught in the middle as they try to comply with a complex and often-ineffective system.

Finding better ways to verify employee status is becoming more urgent as Congress and state legislatures debate immigration reform and as some HR leaders fret that the Electronic Employment Verification Program, the government-run system known as "Basic Pilot," will become mandatory.

"What we are most concerned about is that employers that are trying to comply are going to get stuck with a system that doesn't work -- they'll get 'Swifted,' " says Mike Aitken, director of government affairs at the Society for Human Resource Management in Alexandria, Va., referring to the December raids against Greeley, Colo.-based meat producer Swift & Co., in which more than 1,200 illegal workers in six states were arrested. (See cover story.)

A Biometric Solution?

SHRM and four other HR organizations in March formed the HR Initiative for a Legal Workforce "to improve the current process of employment verification by creating a secure, efficient and reliable system that will help prevent unauthorized employment," according to the mission statement on the group's Web site,

The coalition seeks improvements in Basic Pilot while creating a parallel, privately run electronic verification system that incorporates state-of-the-art "biometric identifiers." Biometric systems confirm identities by comparing fingerprints, retinas or other individual features scanned in real time with authentic samples that are stored digitally.

Gathered as part of the hiring process, biometrics would take the guesswork out of the equation by proving or disproving that new employees are who they say they are, according to the HR Initiative. The new system would also prevent employment-related identity theft, in which illegal immigrants fraudulently use valid documents that have been stolen or purchased on the black market.

Neither the paper-based I-9 process nor Basic Pilot can prevent identity theft, the HR Initiative's proponents argue. That's one reason so many illegal immigrants get hired -- and why so many employers remain vulnerable to government enforcement, despite their efforts to comply with immigration laws.

Of the approximately 12 million undocumented immigrants living in the United States, 7.2 million hold jobs, accounting for nearly 5 percent of the U.S. labor force, according to an estimate from the Pew Hispanic Center. Many of them work in the construction, hospitality, manufacturing and farming industries.

The HR Initiative has not specified the technology or cost of its proposed system. An advisory board of employers, employees and technology experts would choose the right technology. Employer participation would be voluntary.

"We do not want [the system] to be mandated because there would be costs associated with it," says Daniel Yager, senior vice president and general counsel at the HR Policy Association in Washington, an HR Initiative member. "Any employer that would really want it could afford it."

However, the coalition's proposal is already raising questions about practicality, cost and privacy. Biometric identifiers in employment are not new -- they are used as part of background checks for teachers, bankers and high-security jobs, for example -- but implementing them as part of a nationwide employment verification system would be neither easy nor foolproof, experts say.

For starters, employers would have to buy and install equipment, such as fingerprint readers, at their worksites. "It'd be a huge burden to expect employers to get the technology. It won't help much unless everyone is doing it," says Jessica Vaughan, a senior policy analyst at the Washington-based Center for Immigration Studies, a think tank that supports immigration control.

There's also the matter of training HR staff or hiring a contractor to run the checks. "There will be errors, and someone will be liable," says Angelo Amador, director of immigration policy at the U.S. Chamber of Commerce.

To verify someone's identity, employers would compare the biometric they obtain with one stored in a national database -- an element that raises privacy concerns. "Once there is a huge warehouse of biometric data on everyone in the workforce, that database will be used for more and more purposes. Biometric-based surveillance [could be] a matter of everyday life," says Beth Givens, director of the Privacy Rights Clearinghouse in San Diego.

As a practical matter, a biometric system probably couldn't stop all unauthorized hiring, says Lester Rosen, president of Employment Screening Resources, a background-checking firm in Novato, Calif. An illegal immigrant could fool the system by combining his or her biometric and a legal resident's name to create a false identity before the legal resident enters the database. "It all depends on the integrity of the initial process," he adds.

However, HR Initiative members say steps would be taken to protect the proposed system against fraud or misuse. The new, privately run system (in whatever form it ultimately takes) would be secure and unavailable to the government, Aitken says. In addition, biometrics would be supplemented with other verification methods, including asking several specific questions whose answers could be checked against publicly available information. ("What year did you graduate from college?")

Basic Pilot Concerns

Biometrics or not, it's only a matter of time before employment verification becomes fully automated, HR and immigration specialists say. Employers can sign and store I-9 forms electronically now, but most of them continue to manually verify employees' identities and authorization to work in the United States.

Since 1986, employers have been required to fill out a Form I-9 for each new employee within three days of hiring, verifying employment eligibility by examining and recording information from designated documents, such as Social Security cards, driver's licenses and green cards.

The prevalence of counterfeit documents makes the process unreliable. Employers can't catch every fake, resulting in unintentional illegal hires, but aggressive scrutiny can risk claims of discrimination on the basis of national origin or citizenship status. HR managers are stuck as "the border guards of the employment process," Aitken says.

U.S. Citizenship and Immigration Services, the Department of Homeland Security agency that oversees employment verification, has been slow to make changes. Four of the 29 documents listed on the I-9 are no longer accepted (and one not listed is), but employers can use the list as-is until a new form is created, probably this summer, says Gerri Ratliff, director of CIS' verification division.

CIS may also shorten the list of documents pending the outcome of immigration legislation. "The documents on the list should be only secure documents," she says, but "we're pausing this to see what happens on [Capitol] Hill."

The onus of employment verification shifts partly to the government under Basic Pilot, launched in 1997. As of late April, more than 16,500 employers with nearly 72,000 work sites voluntarily participated in the Web-based system, run by CIS. About 50 employers enroll every day, Ratliff says, either directly or through "designated agents" such as law firms and background-checking companies.

After completing the I-9, employers input a new hire's name, date of birth, Social Security number and document types and numbers. The system then matches this information against Social Security and DHS databases.

While the HR and business communities criticize Basic Pilot, many users say it's fast, user-friendly and takes the guesswork out of document verification. "It takes the monkey off your back -- it makes you be fair and consistent," says Glenda Wooten-Ingram, HR director of an Embassy Suites hotel in Washington, whose 180 employees include natives of El Salvador, Vietnam, China and other countries.

Beverly Hills, Calif.-based Hilton Hotels Corp., which owns Embassy Suites (among other brands), rolled out Basic Pilot from 2000 to 2003 for its 360 nonfranchised U.S. hotels, which employ 100,000 people. Megan Sampson, Hilton's director of workforce planning and analysis, says, "For us, it was easier to be proactive. It's taking the worry away from our HR team members -- and it's free."

The company's use of Basic Pilot has reduced the number of illegal immigrants seeking jobs at Hilton hotels, says Sampson. "Word gets out if you are a stickler about this," she explains. "People stop coming if they know you'll be looking [closely at work authorization]."

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"The system is ready for prime time," says Vaughan. It's been tested for 10 years. It's come a long way. It's efficient and accurate enough to be applied nationwide."

Many lawmakers are ready to expand or mandate Basic Pilot as part of immigration reform. Colorado and Georgia passed laws last year that mandate its use for state government and its contractors; electronic employment verification is also part of federal immigration legislation.

Easy Entry = Easy Fraud

Most of the 489 HR professionals surveyed by SHRM in early 2006 support an electronic system that's fast, efficient and easy to use. But the current version of Basic Pilot isn't up to snuff, critics say, citing problems with reliability, scalability and identity theft.

"I have serious concerns about the integrity of the system," says attorney Joyce Fleming of Ford & Harrison in Atlanta. "We don't believe the system is updated and reliably gives accurate results to employers." Because government databases aren't updated quickly, she adds, the system incorrectly classifies some legal workers as unauthorized.

The latest independent evaluation of Basic Pilot shows that 92 percent of queries result in authorization in one to three seconds, a big improvement from a few years ago, Ratliff says. The system handled 2 million queries in 2006 and has a capacity for 25 million -- a number that is, nevertheless, far below the 59.4 million new hires that year. 

The remaining 8 percent of queries yield "tentative nonconfirmations," indicating something amiss, such as a mismatched name and Social Security number.

An employee can contest the finding, or resolve the problem by visiting the local Social Security office or calling DHS. Those who don't protest are likely illegal and don't come back to work, HR managers say.

"If you're talking about a large employer, tracking this is a nightmare," says Barry Nadell, senior vice president of the background-screening division at New York-based Kroll Inc. Basic Pilot allows 10 days to resolve tentative nonconfirmations, including two days for its own staff to confirm that a problem has been fixed.

The Basic Pilot program doesn't have enough staff to handle secondary verifications if many more employers use it, leaving employers hanging and possibly losing the investment they've made in a new hire with wages and training, Aitken says. An employee can't be fired until the employer receives a "final nonconfirmation."

However, Ratliff says she's confident the program has enough "status verifiers." "USCIS has hired seven status verifiers for Basic Pilot and is hiring more," she says. The agency is also working to clean up and expand databases used by Basic Pilot to reduce the number of cases requiring human intervention.

Finally, there's the growing problem of identity theft, as seen at Swift, which employed hundreds of illegal workers despite its participation in Basic Pilot. One variation of the crime -- repeated use of the same Social Security number in multiple workplaces -- is hard to catch because the Social Security Administration cannot legally share this information with DHS.

"No one type of tool will detect all kinds of fraud," Ratliff says, but she points to a new "photo tool" as an improvement. The tool, which is being rolled out to Basic Pilot users this summer, allows employers to pull up computerized photos from work-authorization documents to see if they match employees' documents. If the photos don't match, the document is either fake or belongs to someone else.

"This pilot has already detected one case of a fraudulent [green] card," Ratliff says. But the photo tool has limited effectiveness because not all documents contain photos, and DHS can't access photos on state-issued drivers' licenses.

As electronic systems develop, employers will continue to be on the hot seat of employment verification, caught between the flow of undocumented immigrants and increasing government enforcement. For now, the best protection is to complete I-9s correctly, track document expirations, audit stored forms, verify that payroll names and Social Security numbers match, and carefully check applicants' employment history -- although employers must also ensure that they're rigorously screening all applicants, not just those they suspect of possibly being illegal immigrants, to avoid running afoul of federal and state anti-discrimination laws.

"Use common sense," Fleming says. "Ask about documents that look fishy. In today's climate, it's worth questioning when the facts do not fit together."

Rosen adds, "The employers who do the bare minimum are the ones who get in trouble. When it's easy entry, it's easy fraud."

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