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Expanded Worker Checks Would Use Faulty System

Fernando Tinoco has been an American citizen since 1989, but he was fired from his job after an automated search of government records raised questions about his status.
Fernando Tinoco has been an American citizen since 1989, but he was fired from his job after an automated search of government records raised questions about his status. (By Kevin Tanaka For The Washington Post)

Officials with the U.S. Citizenship and Immigration Services, which oversees the pilot program, say they are aware of its shortcomings and have been making progress in fixing them.

"We hope in the next few months to see a significant improvement," said Gerri Ratliff, chief of the CIS's verification division.

Many of the problems, she said, occur because immigration databases have not been updated quickly enough as workers enter the country or as their status changes.

As it is, Ratliff said, the system errs in just a small percentage of overall cases. For every 100 names entered, only two or three go unverified in the initial, electronic search but are later cleared in a manual check, according to CIS statistics.

Critics of the program contend that even those error rates, when multiplied across a labor force of about 140 million, have the potential to create mass confusion.

"We're essentially creating a no-work list," said Timothy Sparapani, legislative counsel at the American Civil Liberties Union. "So we can't have a situation where the government's mistakes are preventing a person from earning a living."

The Senate amendment passed Tuesday would give workers the benefit of the doubt until the program is proven effective, would allow workers to seek back wages from the government if there is an error, and would, in some cases, limit employers' liability for hiring illegal workers -- but it would also increase the penalties.

Many of the program's operational details are still being worked out. House and Senate legislation differ over how quickly the program would take effect and whether it would include all existing employees or just new hires.

Funding is also an issue. No additional money has been promised, but the Congressional Budget Office has estimated that it would cost at least $1 billion over the next five years to expand the program and keep it running if the Senate's version is enacted.

Many lawmakers think the program is worth the expense. "People will keep trying to enter illegally if they believe an employer will hire them," Rep. F. James Sensenbrenner Jr. (R-Wis.), a key backer of House legislation, said in a written statement. "Making the Basic Pilot Program mandatory will shut off this magnet."

The Bush administration, too, has endorsed the idea, asking for $110 million in its 2007 budget to improve the program. "That would give us the ability for the first time to say to employers -- all employers, not just a small group -- now you have a tool that will allow you to check the status of your employees," Homeland Security Secretary Michael Chertoff told Congress in February.

Under the new system, employers would submit their employees' identification information over either the phone or the Internet. Then, software would check employee records against Social Security Administration and immigration documents. In most cases, employees would be cleared immediately. But if they are not, government workers would begin a manual search of the records to see if a match was overlooked, a process that can take several days. If the employee is still not cleared, he or she would be issued "a tentative nonconfirmation" and has up to 10 business days to contest the ruling. Employers would be forbidden from firing an employee until they receive a final notice confirming that the worker is ineligible.

The system would replace a paper-based process in which employers certify on a government form, known as an I-9, that they have examined their workers' documentation and that it appears authentic. That process has been plagued with forgeries -- sometimes with the employer's consent or encouragement. But the government has been virtually powerless to do anything about it because of the difficulty of proving a company knowingly hired illegal workers.

"There's simply no way of enforcing existing law without the Basic Pilot or something like it," said Kevin Jernegan, an immigration specialist at George Washington University. "But nothing is as easy in practice as it appears to be on paper."


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