Employment Document Verification

The following is an excerpt of testimony by Mike Aytes, acting Deputy Director of U.S. Citizenship and Immigration Services to the House Immigration Subcommittee on April 2, 2009.

"The current independent evaluation of E-Verify, conducted by the Westat Corporation, (which can be found on www.uscis.gov) found that approximately 96.1 percent of all cases queried through E-Verify were automatically verified as work authorized. The 96.1 percent figure represents a significant improvement over the figures from earlier evaluations, which found that the automatic verification rate improved from 83 percent (in 2002) to 94.7 percent (in 2007).

Of all the cases verified through E-Verify, only 3.9 percent of queries resulted in a mismatch, or a Tentative Non-confirmation (TNC), which is issued when the information queried through E-Verify does not match the information in SSA or DHS databases and requires further action on behalf of the employees to resolve their cases with SSA or DHS.

Of that 3.9 percent who were not immediately authorized, 0.4 percent of queries are those who were issued a TNC and successfully contested the case. The remaining 3.5 percent of queries that are not found work authorized by the system either did not contest the TNC, were unsuccessful in contesting or were found unauthorized to work at the secondary verification stage."

Speaking for the record on November 19, 2003, Rep. James Sensenbrenner (R-WI), Chairman of the House Immigration and Claims Subcommittee, noted that, “A recent study found that 96 percent of participating employers believed the pilot to be an effective and reliable tool for employment verification, 94 percent believed it to be more reliable than the IRCA-required document check, and 83 percent believed that participating in the pilot reduced uncertainty regarding work authorization.” On the same date, Rep. Sheila Jackson-Lee (D-TX), the ranking member of that subcommittee, stated, “The Basic Pilot is an effective employee verification program that makes it easier and safer for employers to hire foreign workers, which makes it easier for lawful foreign workers to find employment.”

More than ever, the U.S. must fully enforce its immigration laws to protect its citizens from future attacks. In its capacity to identify document fraud and illegal aliens, the Basic Pilot Program can indeed play a role in the fight against terrorism.
—Rep. Doug Bereuter, (R-Neb.) House of Representatives, Nov. 19, 2003

Although the 1986 Immigration Reform and Control Act (IRCA) implemented penalties for employers who knowing hire illegal aliens—with the goal that illegal immigration would decrease if aliens knew employers would not hire them—the growing availability of counterfeit social security cards, immigration documents, and other false IDs made it easy to circumvent the system.  In response, in 1996, Congress ordered the INS to create a pilot project to test a system that would allow employers to access federal databases in order to verify new employees’ documents and thus establish their work eligibility.

The resulting document verification system is called E-Verify (formerly called the Basic Pilot program).  Within three working days of hiring a new employee, a participating employer electronically submits a new employee’s Social Security number, name, and birth date to the Social Security Administration (SSA) to be checked against its database.  If the employee is foreign-born, the data is also sent to the Department of Homeland Security (DHS)—previously to the INS—to verify that the new employee is in a legal work status, e.g. immigrant, temporary worker, or refugee.  Within a few days, a response comes back indicating either that the employee has been identified and is authorized to work, or that authorization cannot be made.  In the latter case, the employee must be informed and is given eight work days to contact the SSA and/or the DHS to reconcile any incorrect data in the agency’s database.  If the discrepancy is not reconciled after ten days, the employer is notified that the employee is not authorized to work.  The employer then must either terminate the employee or become subject to sanctions for knowingly employing an illegal alien, unless it can be proven that the government erred.

This verification system is modeled on a program called SAVE, used by state and local governmental agencies that administer federal welfare programs.  Those agencies have been required since 1986 to verify with immigration authorities that recipients of federal welfare benefits are not illegal aliens.1 The Basic Pilot verification program for employers is run by the same office that administers the SAVE program.2

When the Basic Pilot program was first established in November 1997, it was limited to employers in California, New York, Texas, New Jersey, and Florida.  As a result of a request from the Nebraska congressional delegation, it was later expanded to include that state.  In 1999, the INS contracted for an outside evaluation of the program.3 That evaluation, completed in June 2002, found that the employers participating in the program were satisfied with its operation and that it was achieving its objective with only minor drawbacks.  

In November 2003, Congress reauthorized the project for an additional five years and expanded its scope to be available to employers nationwide over the next year.  The legislation also called on the DHS to submit a report on how it planned to expand the project to the additional states and on what steps it has taken to address the drawbacks identified in the evaluation report.

“Since its inception, the voluntary Basic Pilot Program has provided a ‘safe harbor’ for employers in the complicated and often confusing area of employment verification. While the law requires employers to verify documents for each hire that indicate authorization to work, the complexity of documents, the ease of forgeries and counterfeiting and the steep penalties against inquiring too far and violating a legitimate worker’s civil rights make this area a potential quagmire for unsuspecting employers. The Basic Pilot allows employers to quickly and easily check with immigration and social security databases to verify eligibility. Many employers rely on this system to fulfill their legal obligations.” --R. Bruce Josten, Executive Vice President, U.S. Chamber of Commerce, October 17, 2003

The Importance of Document Verification

Because the availability of jobs is a primary magnet that draws illegal immigrants, the key to turning off that magnet and, thereby, reducing mass illegal immigration is to deny jobs to unauthorized workers.  Congress recognized this when it adopted the employer sanctions law in 1986 and validated that judgment in 1996 with the creation of the verification system.  The benefits of adopting the E-Verify program as a mandatory requirement nationally would be many: 

  • Denying jobs to illegal workers would deter new illegal immigration, ease pressure at the border, and, thereby, increase the ability of the Border Patrol to assure border security.
  • When established illegal workers tried unsuccessfully to find a new job, their inability to do so would encourage many of them to return home voluntarily.
  • Employers of new illegal aliens would be much more exposed to the sanctions penalties, and prosecutions would penalize unscrupulous employers.
  • Over time, interior immigration enforcement personnel would become better able to target employers of underground economy workers, such as sweatshops.
  • Finally, by diminishing the number of illegal workers, a truer measure could be made of any need for legal temporary foreign workers.

Already Arizona is serving as a test lab for the effectiveness of the E-Verify system. Employer participation in the program for all new employees has been required by state law since the beginning of 2008. News accounts from the state document that many workers concerned about not being able to continue to work in the state are leaving the state. News accounts from Mexico indicate that there has been a surge in Mexican workers returning to Mexico. News accounts have also reported a drop in enrollment of students in English Language Learning programs in public schools.

It is possible that an era of employment document verification could lead to increased efforts by illegal alien workers to pass themselves off as U.S. citizens in order to bypass the DHS screening process.  Because all new employees, regardless of citizenship, have to be cleared by the SSA, some foreigners may be tempted to assume the identity and SSN of a U.S. citizen.  In anticipation of this challenge, policy makers should now be engaged in improving the integrity of the nation’s birth and death record keeping system to prevent identity theft.  

Policy Options

  • At the federal level, FAIR is working to encourage the government to use the expansion of the Basic Pilot document verification system to include screening of all federal employees and to require that U.S. government contractors also use the system to screen their employees.4 There is no justification for the American taxpayers’ money being spent to employ illegal alien workers—something that has happened in a number of recent instances.5
  • Similarly, at the state and local level, policy makers should follow the example of Arizona and use the E-Verify program—and encourage their contractors to use it—to assure that the tax dollars they administer are not paid to people breaking our immigration laws.
  • The program was reauthorized for an additional five years in 2003, and it appears to be headed for an additional extension as a voluntary program in 2008, but there is no reason why the nation should have to wait for it to be adopted as a national mandatory system. Congress should adopt the system as a requirement for all employers whose employees are subject to SSA withholding. 

Revised April 2009

[1] The programs covered by the requirement include Temporary Assistance to Needy Families, Medicaid, Unemployment Compensation, Title IV Educational Assistance, and certain housing assistance.

[2] To obtain information on participation in the program, call 1-888-464-4218 or write to the Department of Homeland Security, 425 I Street NW, ULLICO Bldg., 1st Floor, Washington, DC 20536.

[3] The evaluation was done by the Institute for Survey Research at Temple University and Westat, a private research firm.

[4] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Section 402(e)(1) requires each department of the federal government to participate in a pilot program, although that requirement is limited to a demonstration effect and does not extend beyond the states where the pilot projects are offered.

[5] In July 2003, a federal grand jury indicted 44 people for the use of fake “green cards” to gain employment at the U.S. Air Force Academy.  In October 2003, about 60 illegal alien workers were found to be working on a construction project for a new federal courthouse in Miami.  Numerous cases of illegal alien workers have been uncovered working with fake identity documents at U.S. airports as a result of “Operation Tarmac.” Even the U.S. Army has been duped into enlisting illegal aliens using phony immigration documents.  See, for example, Deseret News, October 5, 2003; The New York Times, July 16, 2003; Rocky Mountain News, September 2, 2003; and The Atlanta Journal-Constitution, November 7, 2003.