Last update August 15, 1996
In our first report to Congress last fall, U.S. Immigration Policy: Restoring Credibility, we sought to recommend a comprehensive strategy. We chose to focus much of that report on measures to control illegal immigration because growing frustration about it undermines our first commitment to legal immigration in the national interest.
Let me sum up the Commission's reasons for proposing that we develop a better system for worksite verification. Reducing the employment magnet is the linchpin of a comprehensive strategy to reduce illegal immigration. Illegal aliens are here for jobs. That is the attraction. So the only effective way to deter illegal immigration must include the worksite.
A better system for verifying work authorization is central to the effective enforcement of employer sanctions. The current system of verification is doubly flawed: it is too susceptible to fraud, particularly through the counterfeiting of documents; and it can lead to increased discrimination against foreign-looking and foreign-sounding authorized workers.
IRCA stipulates that all employers are required to verify all employees' identity and authorization to work. Employers are responsible for examining documentation establishing identity and employment eligibility and ensuring that the documents presented reasonably "appear" to be genuine and relate to the individual. This information is documented on the Employment Eligibility Verification Form [I-9 Form]. Under these verification provisions, employees can use a combination of more than twenty-nine different documents to prove identity and work eligibility.
The current process of employment verification has not functioned as the law intended to deter the hiring of undocumented aliens. The system may be thwarted easily by fraud. Widespread counterfeiting of documents that can be used for verification of identity and employment authorization has been reported since IRCA's implementation. Moreover, it is relatively easy to obtain genuine documents, such as birth certificates or drivers licenses, by fraudulent means. The ease of obtaining fraudulent employment eligibility documents has resulted in their increased use to satisfy I-9 requirements. The General Accounting Office [GAO] documented that 39 percent of unauthorized workers identified by INS investigators during a six-month period in 1987-1988 used proven or suspected counterfeit documentation to obtain employment. Other studies confirm similar levels of fraud. Because numerous documents-many of which may be unfamiliar to any given employer-may be shown to verify employment authorization, employers may have difficulty in determining if these documents meet the verification test, that is, that they "reasonably appear on their face to be genuine and to relate to the person presenting them."
Employer sanctions also have created problems for employees, who, if they are foreign-looking or foreign-sounding, may find themselves subject to unfair immigration-related employment practices. A number of government and private studies, including the Congressionally-mandated GAO study of discrimination, have documented practices that put a greater burden on foreign-sounding and foreignlooking applicants for employment. These include employer demands that such employees provide additional or different documentation, or that employers selectively use Form I-9 for presumed aliens but not for U.S. citizens.
Although it remains a matter of controversy whether these practices represent widespread discrimination caused by IRCA, the evidence appears consistent that even some well-meaning employers are confused by the requirements under IRCA and, as a result, violate the terms of the law. While the completion of a Form I-9 is a good faith defense against allegations of knowing hire of illegal aliens, in some cases, employers may be found to have constructive knowledge of the illegal status of their worker if they do not follow up on anomalies uncovered in the I-9 process. If they press for additional documentation because they think they have reason to believe an employee is an unauthorized worker (for example, the document does not appear to be the same as the one reproduced in the INS Handbook) and their reasoning is faulty, they may violate the antidiscrimination provisions of IRCA.
In explaining their concerns about the current verification process, employers also cite what they consider to be excessive administrative and paperwork requirements. As a recent addition to tax records and other compliance and recordkeeping requirements, the I-9 is seen by employers as one more paperwork burden. Oftentimes employers photocopy all documents presented to satisfy the I-9 process as evidence to avoid a knowing hire challenge-a formidable increase to their paperwork volume. Further, the technical complexity of the requirement places significant demands on the employer in the form of compliance instructions, training of staff, and contact time with candidates for employment.
The sheer number of documents available for use in verification presents challenges for effective implementation of employer sanctions. Some efforts are underway to correct this situation. INS has proposed regulatory changes that would reduce the number of documents to be used for verifying work authorization for aliens. In addition, voter registration cards will be eliminated from the list as they generally do not contain a photograph needed to verify identity. The Commission believes that these efforts will not solve the problems inherent in the current verification process for several reasons. Reducing the long list of documents by a few documents would still leave too many documents for effective verification; it also would be unlikely to reassure employers sufficiently about the security of the system and may even add to employer confusion and lead to a potential increase in differential treatment. Counterfeiting or the fraudulent use of documents still would continue.
The Commission reviewed options that would reduce the number of acceptable documents even more stringently. The proposals that all aliens use an INS-issued document and all citizens present one of a limited number of documents, such as a passport, birth certificate, social security card, and/or driver's license, still contain a basic flaw: the employee would still have to self-identify as an alien or citizen. Such proposals would continue to permit considerable amounts of fraud if illegal aliens declare themselves to be citizens and present counterfeited documents. They potentially also would permit perpetuation or increase of current levels of differential treatment if employers question whether foreign-looking or -sounding citizens are citizens and require an INS-issued document.
Recognizing the problems inherent in strategies to reduce documentation but not to change the overall system of verification, the Commission set a number of criteria by which it measured the potential impacts of more comprehensive reform.
First, a new system would have to be potentially more reliable and less susceptible to unfair immigration- related employment practices than the present one. Any solution would have to take into account that most documents now can be counterfeited within a relatively short time and for a cost that would be recoverable from the sale of the counterfeit documents. Employers generally do not have sufficient expertise to recognize counterfeit documents and, therefore, require a simple, effective means of validating the information presented by new workers. Moreover, the new system would need to apply not only to aliens, but also to U.S. citizens; otherwise, problems of fraud could continue (illegal aliens could claim to be U.S. citizens) and/or unfair immigration-related employment practices may increase (employers could set different documentation standards for all foreign-looking and -sounding individuals).
Second, the new system would have to meet civil liberties and privacy standards. The new verification process should provide protection against use of the system for purposes other than those specified in law. The verification system should protect the privacy of the information to be used in verifying work authorization.
Third, the system would have to lessen the time, resources, and paperwork spent by employers in verifying work authorization. The Commission is persuaded that the current I-9 process requires excessive commitment of time and resources because of the complexity of the verification process. Any new system should be simple to use and require as little paperwork as possible for employers. It also should be simple in overall design, so that enforcement may focus on substantive violations and not become preoccupied with paperwork violations rather than knowing hire of unauthorized workers.
Fourth, the new system would have to be as cost-effective as possible. Given that illegal aliens represent at most a very small portion of the total U.S. labor force, the Commission does not think it appropriate to recommend strategies with costs out of proportion to the problem to be solved. To improve verification without undue costs is possible, we believe, if a new verification system builds to the extent possible on the existing responsibilities, capabilities, and data systems of federal agencies rather than if it were to create new mechanisms that would be used only for verification of immigration-related work authorization.
Fifth, more effective verification likely would require a companion initiative for improvements in the integrity of the underlying or "breeder documents" (such as birth certificates) used to establish identity in this country. Birth certificates are easily counterfeited or easily obtained through counterfeit means. Since counterfeiting operations have become multimillion dollar businesses, meaningful penalties would be needed to deter the counterfeiting of documents. New enforcement measures, commensurate with the scale of these operations, are needed to identify and destroy the counterfeiting rings.
The Commission believes that the most promising option for secure, nondiscriminatory verification is a computerized registry using data provided by the Social Security Administration [SSA] and the Immigration and Naturalization Service [INS].
Having assessed dozens of options for verification of work authorization, the Commission believes that the proposed computerized registry best meets the criteria described above. As envisioned by the Commission, the computerized registry would be used to verify that a social security number is valid and has been issued to the individual who is being hired. This database would be created and updated from SSA and INS files, but not connected to either. From SSA would come a limited set of data: name; social security number; and several other identifiers, such as date of birth and mother's maiden name. From INS would come information about the immigration status of lawfully-admitted immigrants, nonimmigrants, and other aliens permitted to remain temporarily or permanently in the United States. The INS data would also contain information about the duration of work authorization for aliens granted temporary employment permits.
The Commission believes the key to this process is the social security number. For decades, all workers have been required to provide employers with their social security number. The computerized registry would add only one step to this existing requirement: an employer check that the social security number is valid and has been issued to someone authorized to work in the United States.
Most citizens obtain a social security number before age eighteen, and the majority obtain it immediately after birth because it is required if a parent requests a tax exemption for a child. SSA has programs with all but four states to issue social security numbers at birth to U.S. citizens. According to SSA, among the forty-six states that participate in the Enumeration at Birth system, 85 percent of the parents of newborns elect to participate.
SSA already has taken steps to make it more difficult for unauthorized aliens to obtain social security numbers by requiring any individual over age eighteen who requests a social security number to have a face-to-face interview. SSA checks immigration status before issuing the social security card to anyone who did not receive a social security number as a child because they immigrated to this country. SSA also keeps information that designates whether the alien has full work authorization or is temporarily authorized to work with permission of INS. SSA will give social security numbers to individuals not authorized to work if needed to open up bank accounts or for other reasons not related to work, but the social security cards issued to these individuals clearly state that they are ineligible for employment.
Under the proposed verification system, the employer would not ask individuals if they are citizens or aliens. Instead, the individuals would be asked for a name and social security number. This information could then be verified with the computerized registry. The employer would be given a confirmation number if the information given by the employee matches the database information. This verification number would be kept by the employer and could be used as an affirmative defense if the employer is accused of knowingly hiring an illegal alien. If, for any reason, a match is not found within the system, the employer would receive acknowledgement that the verification process was carried out but that, as confirmation could not be made within the system, the employee should check with the local social security office to correct the problem. It would not be necessary-or possible-for the inquiry to give to the employer information about the reason why a match was not effected.
Also under this approach, in situations where the worker has temporary authorization to work, the employer could be told the individual has work authorization but to reverify as of a particular date when the eligibility expires. By the time of reverification, the information would be updated to include the individual's current employment eligibility status. The computer registry also could verify that an alien granted authorization to work for a specific employer, for example, under certain nonimmigrant visas, did not obtain employment elsewhere. Some of the costs of the new system may be offset by savings if the computer system allows extension of work eligibility to be done through updating of the database rather than through issuance of a new INS employment authorization document [EAD].
The Commission believes a computerized registry based on the social security number is the most promising option for verification because it holds great potential for accomplishing the following:
The Commission recommends that the President immediately initiate and evaluate pilot programs using the proposed computerized verification system in the five states with the highest levels of illegal immigration as well as several less affected states. We are pleased that the President's immigration initiative and FY 1996 budget includes funding to begin the pilot programs.
A pilot program will: permit the testing of various approaches to using the proposed verification system; provide needed information about the advantages, disadvantages, and costs of the various approaches; develop and evaluate measures to protect civil rights and civil liberties; and ensure that any potential obstacles, such as the quality of the data used in the registry, are addressed prior to national implementation. Assuming the results are positive, Congress should pass the necessary statutory authorities to support more effective verification.
The Commission recommends that these projects be undertaken in the high impact states because that is where the bulk of the illegal alien problem is. We did not recommend that the pilots be undertaken throughout all of the five states immediately. Pilot projects should start small. At each step, we should have results to determine what to do next.
The pilot program should incorporate a number of features:
Counterfeit-resistant driver's license or state-issued identification documents. An almost universal identification document is the driver's license or identity document issued by Departments of Motor Vehicles [DMVs]. These documents are obtained in most states with a birth certificate, social security number, driver's license from another state, or other documents. During the past few years, there has been significant progress in increasing the security of these documents, pointing to further improvements that could be made. In the issuance of drivers' licenses, states are typically using secure paperstock, lamination, and other security features with a four to five year cycle for license replacement. Several states are issuing licenses made of hard plastic with a magnetic stripe. Alteration of the card is difficult and an operation for mass producing of replicates would be very expensive. The use of a smart-card chip and a biometrics identifier on the license is currently being explored through the Department of Transportation. Digital imaging, a new technology currently used for Virginia drivers' licenses, allows for automated capture, display, and comparison of current and previously recorded signatures and photographs. Employers would not be required to assess the validity of the drivers' licenses, however. The computer registry would tell an employer if the name and social security number on a license are valid. In this way, even a very good counterfeit would not pass muster.
Social security cards. Existing social security cards cannot serve as effective identifiers of the holders of those cards. While currently issued cards are more resistant to counterfeiting than earlier versions, many easily counterfeited cards remain in circulation. There are forty-four versions (twenty-six original and eighteen replacement) of the social security card. As of June 1993, 63 percent of the total number of active card holders had been issued the new counterfeit-resistant card, still leaving a substantial number of valid older documents in use. (There is no way of knowing how many counterfeit cards are currently in use or how many illegal aliens may have obtained valid social security numbers through fraudulent means.) Even the new cards have problems as identifiers; these cards do not have any identifying information other than the individual's name. A number of proposals have been put forth in Congress and elsewhere for the development and reissuance of a more counterfeit- resistant social security card. Even apart from the immigration-related reasons for a more secure social security card, arguments in favor of reissuance point to the need for greater integrity in the social security system itself. Critics of these proposals point out the cost and inconvenience to the public of a requirement for reissuance of the social security card. Further, if a photograph is used on the new issuance, it will be necessary for cards to be reissued periodically. SSA estimates the initial cost would be in the range of $2.5 billion. The pilot program would provide an opportunity to determine the cost-effectiveness of proposals to reissue the social security card.
Telephone verification. Some experts testified that a stand-alone telephone verification system could work to verify identity if workers are asked for information that they alone know. Many credit card and bank companies use a Personal Identification Number [PIN] to verify identity. Under this proposal, employers would enter individuals' social security numbers and workers would enter a PIN that only they knew. Alternatively, or in conjunction with the PIN, employees could provide a set of identifying information: for example, name, social security number, mother's maiden name, and date of birth. The pilot would test whether a telephone verification process that requires no documentation affords sufficient protections against fraud and discrimination.
Experts note that under any of these systems, the computer system could have a built-in process for logging and auditing inquiries to identify likely fraud. For example, if the same social security number was used too often or in too many locations, the computer system would record the incidence. The system then could inform the employer that the employee must reconfirm the information in the database. The authorized worker would benefit from learning that others were using his or her social security number. The social security number might then be canceled and the authorized worker issued a new number. The unauthorized worker could not reconfirm the information and, therefore, would not be able to continue in that employment. The process would also permit estimates of likely fraud to use in determining the efficacy of the verification system.
Both houses of Congress already have earmarked funds in the INS FY 1995 appropriation to enable the agency to undertake such needed reforms. INS currently is completing the process of combining several databases into one integrated system. Nonimmigrant and refugee data are now integrated into the Alien Status Verification Index [ASVI] database, that is used in the benefits verification process, the System for Alien Verification of Eligibility [SAVE], and the Telephone Verification System [TVS] pilot for employment eligibility verification. In FY 1995, the INS information systems division will almost double its budget, from $110 million to $200 million, to improve the infrastructure of the data systems.
The Commission welcomes these steps and encourages INS and SSA to take seriously their responsibility to have accurate, accessible data fully protective of privacy. Even with these improvements in the source data for the computerized registry, procedures must be developed to ensure timely and accurate extraction as well as updating and correcting the needed data. The Commission encourages INS and SSA to cooperate in this endeavor as the proposed registry would be built upon and-once implemented-would support the primary missions of both those agencies. Each agency has a vested interest in ensuring that its data are accurate, even apart from their common interest in ensuring that unauthorized workers do not obtain jobs. It is unacceptable that neither agency's records currently can provide needed information quickly. Resources requested and used for employment and benefit authorization purposes can be seen largely as enhancing or parallel to the resource needs of the larger mission of these agencies.
Informal estimates by the Social Security Administration indicate that the cost of design and development of the combined SSA/INS database is $4 million over a two-year period. Annual cost of maintaining and operating the verification system is estimated at about $32 million. This figure maintains the computer registry itself, the costs of operating the automated system for checking social security numbers against it, operator costs for calls that cannot be handled automatically, and telephone lines for an 800-number to be used by employers.
Correcting errors in the INS and SSA databases will require the largest financial input. Discrepancies referred to SSA for resolution will cost approximately $122 million initially with an annual cost of $30 million. The cost of resolving discrepancies in the INS database will be additional. INS is already taking steps to improve its recordkeeping, but under the current plan, these improvements will take several years to accomplish. Additional appropriations will be needed to speed that process and ensure that accurate information will be available in a timely manner. Correcting discrepancies in the existing SSA and INS databases would be good investments, even if the computer registry were not at issue.
Provisions also must be developed to protect both workers from denial of employment and employers from penalties in cases where the information provided by the computer registry may be missing or inaccurate.
Even with major improvements in the reliability of the data, the pilot programs will require mechanisms for timely manual secondary verification and an appeal when there is no match. Experience with existing databases, such as SAVE, indicate a sufficiently high error rate to merit further review. If the error rate is too high, the result may be discrimination against employees who come up as false negatives. To deter such discrimination, employers could be required to retain in employment those individuals until the employment authorization is confirmed (as in the current law, verification is a post-hire process). The current pilot project on telephone verification [TVS] has this provision.
The Commission recommends evaluation of the pilot programs to assess the effectiveness of the verification system.
The evaluation should include objective measures and procedures to determine whether current problems related to fraud, discrimination, and excessive paperwork requirements for employers are effectively overcome without imposing undue costs on the government, employers, or employees. The evaluation should pay particular attention to the effectiveness of the measures used to protect civil liberties and privacy. In carrying out the various components of the evaluation, study designs should be capable not only of identifying the degree to which the pilot alternatives achieve defined goals, but also of identifying why certain outcomes have occurred. In particular, the evaluation should assess the extent to which any identified strengths and weaknesses in the pilot programs are attributable to the computerized registry itself and/or the mechanisms used to access it. This information is essential to determining if the computerized registry should be maintained as a cost-effective mechanism for verification and, if so, what means of access should be used nationally.
The Commission supports INS efforts to improve its Telephone Verification System/SAVE [TVS/SAVE] database-but only as an interim measure.
The improvements are essential for improving the data needed for the new, more effective verification process. The Commission is aware of the inadequacies of the current INS data that would be used in the proposed system. The Commission does not endorse the TVS/SAVE program as a long-term solution to the verification problem because use of TVS/SAVE requires the inadequate mechanism of self attestation by workers as to their citizenship or alienage, thus making it easy for aliens fraudulently to claim U.S. citizenship. It also imposes requirements on legal immigrants that do not apply to citizens. Nevertheless, improvements in this database as well as the Social Security Administration database are essential to the development of a more secure, less potentially discriminatory verification system.
The current Telephone Verification System builds on the ASVI database that was established for the SAVE program. SAVE was designed for verification of legal status as it pertains to eligibility for federal assistance programs.
The following information is contained in the ASVI database: alien identification number; verification number; last name; first name; and an employment eligibility statement. The time-consuming aspect of the ASVI database is that often the system, for any number of reasons (e.g., files are not updated, there is a systems error, or the number provided is not functioning) cannot provide a response to A-number queries. When this happens the system refers the case for secondary verification. In FY 1994, (September - July) there was a 17 percent secondary referral rate for the SAVE system. A study of Phase I of the TVS pilot reported a 28 percent secondary referral rate. INS is already in the process of improving its system and is working to upgrade the ASVI database and reduce the need for secondary verifications. The Commission endorses INS initiatives to improve the SAVE/ASVI system as this step is necessary before a more secure system can be achieved.
Those are the Commission's recommendations on verification of work authorization. They are part of a comprehensive approach to immigration reform which this Commission proposes. I will be glad to answer any questions.