Expanded Worker Checks Would Use Faulty System

By Griff Witte
Washington Post Staff Writer
Thursday, May 25, 2006

A federal database program with a checkered track record could dramatically expand to affect every U.S. employer and worker under provisions of the immigration legislation being considered by Congress.

The program is intended to keep illegal immigrants from working in the United States and to discourage more from entering, but in nearly a decade of small-scale tests, it has had trouble distinguishing between those who are here legally and those who are not. Fixing it and rolling it out nationwide could cost more than $1 billion.

Under the proposal, employers would be required to submit information about their employees to a federally administered electronic system that would automatically check workers' immigration status. Supporters say it is the only way to prevent employers from hiring illegal workers. But an unusual coalition has emerged to oppose the idea, with labor advocates saying it would dissuade legal immigrants from applying for work, big business groups asserting it would be too bureaucratic and civil-liberties organizations arguing that it would jeopardize individuals' privacy.

Their opposition softened somewhat this week after the Senate passed a bipartisan amendment intended to give workers more protections and to make the process less burdensome for businesses. The amendment puts the Senate's version even more starkly at odds with a hard-line House bill that emphasizes aggressively curbing illegal immigration by cutting off the primary incentive -- jobs.

Many conservatives have said that neither bill goes far enough and that the system will be too easily circumvented unless workers are required to use a biometric identification card or other form of ID that is tough to forge.

At the center of the debate is the Basic Pilot Program, which electronically searches a combination of Social Security and immigration databases to verify an employee's status. Now, the Homeland Security program is small and voluntary, with about 6,000 employers enrolled. But it would extend to each of the country's approximately 8 million employers if Congress passes, and the president signs, either the House or Senate version of the immigration legislation. Employers who skirt the rules would be subject to stiff fines, with jail sentences for repeat offenders.

"The new Senate version is a good compromise," said Tyler Moran, policy analyst with the National Immigration Law Center, a group that advocates for low-income immigrants. "But the pilot program's performance so far has been so dismal that it's hard to conceive of a system that will work effectively nationwide."

Reviews of the pilot program have found that though it has the potential to limit illegal immigration, it suffers from serious deficiencies. A Government Accountability Office report issued in August criticized it for its inability to catch identity fraud, for flaws in the databases and for the possibility that employers will abuse the system.

Moran said she is especially concerned by the relatively high error rates when it comes to legal immigrants. Nearly one in three noncitizens the electronic system cannot initially verify are later cleared based on a manual search of the records, according to government statistics.

Even some citizens have had trouble. Fernando Tinoco, a 51-year-old Mexican immigrant, has been working in the United States for three decades and has been an American citizen since 1989. But when he reported for his new job at a Tyson Foods Inc. factory in Chicago in March, an automated search of government records raised questions about his status. Two hours into his first day of work, Tinoco was fired.

"I was surprised," he said. "I've never had a problem like this before."

In response to inquiries from a reporter, Tyson said Tinoco can come back to his $8.05-an-hour job. Tinoco's attorney said yesterday that he would return at the end of May.

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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