New Laws Could Require Checking Worker ID Online
Home builders and other employers who fail to comply with a wave of legislation enacted last year to restrict the hiring of illegal immigrants can face fines, have their business with public entities restricted, lose their license and even go to jail.
In 2006, some 120 new municipal and county ordinances and 84 statutes in 32 states were passed to prevent illegal immigrants from obtaining jobs or receiving benefits and services. Many of these new laws require employers to verify the identity and status of their workers.
The federal government's Basic Pilot Program is often the required method of state and local verification. Some of these laws provide a "safe harbor" for those who are found to have hired an illegal alien, but who was nonetheless "verified" by the Basic Pilot Program.
These new state and local laws are in addition to the federal Immigration Reform and Control Act (IRCA), which has been in effect since 1986. IRCA requires employers to verify the identity and work authorization of new employees by means of documents presented in the Form I-9 verification process. However, verification under federal law does not require employers to use the Basic Pilot Program.
Several lawsuits have been filed recently challenging these new laws, arguing that the federal legislation preempts the right of states and localities to enact their own immigration laws, and that state and local governments cannot legally require participation in a voluntary federal program.
Final rulings on these suits will take years, likely requiring decisions from the nation’s top appellate courts, and in the meantime, employers will have to deal with these new legal requirements. Depending on the jurisdiction and circumstances, this could make using the federal Basic Pilot Program to verify employees mandatory.
The Basic Pilot Program was initiated in 1997 as an experimental approach to verify identity and employment eligibility on the Internet through the Social Security Administration and other federal databases. The program originally had limited availability, but employers in all 50 states have had access to it since 2004.
To use the program, employers must have their own computer equipped with a Windows operating system and a Web browser, such as Internet Explorer 5.5 or higher, and must first register online at: visdhs.com/employerregistration (click here). After signing a memorandum of understanding with the U.S. Citizenship and Immigration Services and the Social Security Administration, the employer will receive a user ID and temporary password by e-mail. Completion of a Web-based tutorial program is required prior to initial access.
To use the Basic Pilot Program, the employer enters the form I-9 verification data, which is then checked for accuracy against the information in the federal databases. Based on the information submitted, the employer may be notified that the employee is verified or receive notice of a "tentative non-confirmation," which indicates that the submitted information does not match the federal data.
An employer who receives a "tentative non-confirmation" notice is required to inform the employee, but cannot terminate the employee based on this tentative finding. The employee will have the opportunity to correct the misinformation, which could be as simple as a transposed Social Security number. Employees will lose their job if they don’t contest the tentative finding or the employer receives a final non-confirmation notice.
The Basic Pilot Program cannot be used to pre-screen employees before they are hired, and if the program is used, it must be performed for all new hires, not just those who appear to be foreign. Otherwise, the employer could face fines or civil judgments for discrimination.
Several criticisms have been raised about the Basic Pilot Program:
- There is a slow verification response.
- The complexity of data entry leads to submission errors.
- Although the program is free, the computer equipment needed to use it is expensive.
- There is an unacceptably high level of inaccuracies in the federal databases.
- The program is unable to detect identity theft supported by forged documents.
The program has been used by about 12,000 companies that are mostly larger employers and it has not been as attractive for smaller employers who may not have the computer equipment or trained staff they need to use it. Nonetheless, new state or local laws could make the Basic Pilot Program mandatory for all employers within a particular jurisdiction.
For more information, e-mail David Crump at NAHB, or call him at 800-368-5242 x8491.