Public Policy Issue Statement
The Immigration Nationality Act (INA) is the statute that governs both the process and structure for employing foreign nationals and insuring that only work-authorized individuals are employed in the United States. The Act includes an employment verification program that requires employers to verify the employment eligibility and identity of workers. In this process, employers must review documentation presented by the employees and complete what is known as the Form I-9.
In 1996, the Act was amended to include an electronic employment verification system (known as the Basic Pilot) to improve upon the paper-based Form I-9 process. The Basic Pilot is a voluntary system by which an employer can enter the name and either the Social Security number or the “green card” (I-94 card) number of the employee into a web-based system. The system checks first the Social Security and if necessary, the Homeland Security databases to verify the employee’s legal work eligibility by matching his or her name with a Social Security number or immigration number.
In any immigration reform effort, policymakers need to address two goals: 1) The need by U.S. employers to hire foreign nationals at every skill level to compete in the domestic and foreign markets; and 2) the over-arching national need to ensure a fair, secure and efficient immigration system necessary to ensure a legal workforce.
Central to achieving these two goals is the need for a reliable, efficient and accurate employment eligibility verification process. According to the 2006 SHRM Access to Human Capital and Employment Verification Survey Report, 92 percent of respondents support an electronic employment verification system if it were easy to use, created efficiencies, expedited the employment verification process and created no new employer liabilities.
Unfortunately, the current paper-based verification system requires individuals to produce dozens of different documents to establish identity and work authorization. The proliferation of false documents and identity theft has become so pervasive that employers cannot be assured of their authenticity. In addition, the current Basic Pilot electronic program can be an effective safeguard against document fraud, but it does little to prevent the growing problem of identity theft.
According to the Access to Human Capital and Employment Verification Survey Report, 60 percent of respondents indicated that their organizations experience challenges with the current employment verification process. These include maintaining records when presented with a document that has an expiration date, authenticity of documents presented by employees, quality of documents employees present, time HR spends processing the forms, and the number of documents employees are able to present. As a result, HR professionals are engaged in time-consuming efforts to comply with the immigration laws using systems that are incapable of ensuring accuracy and fairness for employees and prospective employees.
SHRM Proposed Position
SHRM believes that U.S. employers, employees and the government should share responsibility for a reliable, efficient, accurate system to verify employment eligibility. In addition, the federal government and not state and local authorities should be responsible for defining employment eligibility verification provisions. Allowing state and local government to create their own employment verification systems is confusing and costly for employers and undermines the goal of an effective national system. Further, U.S. employers should be liable for their own hiring decisions, not those made outside their control. Enforcement needs to be vigorous and fair, and should focus on employers that blatantly ignore the law as opposed to employers who commit paperwork or technical violations in their attempt to comply.
SHRM supports an accurate, fair and timely electronic employment eligibility verification system, but employers should not be forced to participate until the federal government provides assurances that the system works. This means that the system must respond to queries accurately and instantaneously. The electronic verification system must be accessible through the Internet and telephone with round-the-clock help-desk support to answer questions and resolve employment status. The system must be user-friendly for employers of all sizes, taking into account the limited resources of some employers.
SHRM believes that the current employment eligibility verification system, which requires HR professionals to exercise discretion in examining multiple documents, does not deter unauthorized employment, as employers cannot know whether documents are real or fraudulent. SHRM believes that the current paper-based method needs to be transformed over time into a biometrically-based or other state-of-the-art, technologically enhanced verification system. Employers could be provided the option of continuing to use the current paper-based system or migrating to the enhanced electronic employment verification system through an incentive-based approach. Such incentives might include being relieved of the current requirements to review work authorization and identification documents as well as the presumption of compliance.
SHRM believes if adequately funded, fairly administered, vigorously enforced and supported by state-of-the-art technology, this new system would eliminate virtually all unauthorized employment and at the same time eradicate most forms of immigration-related unfair employment practices.
Key Public Policy Principles
SHRM supports the following principles with regard to public policy on this issue:
Accuracy, Reliability and Efficiency – Employers want an accurate, fair and timely electronic employment eligibility verification system, but should not be forced to participate until the federal government provides assurances that the system works.
Federal Preemption – Clear federal statutory language should preempt states from imposing employment eligibility verification provisions.
Electronic Employment Verification System – A fully functional electronic employment verification system should be created using state-of-the-art technology. This includes requiring the entire attestation and verification system to be conducted electronically to eliminate duplication and paperwork requirements. Any electronic employment verification system needs to meet the standards set by the National Institute of Standards and Technology (NIST).
Accessibility of Electronic Verification System – An electronic verification system needs to be accessible through the Internet and telephone with round-the-clock help-desk support. The system should be user-friendly for employers of all sizes, taking into account the limited resources of some employers.
Employee Participation – Employees and applicants should be required to maintain accurate and up-to-date documents verifying their eligibility to work. Employees and applicants who intentionally present false or fraudulent documents should be penalized.
Employer Responsibility – Employers should be required to verify through the system their new employees’ authorization to work in the United States. Employers who intentionally fail to conduct employment eligibility verification should be penalized. Employers should only be responsible for their own hiring practices, not for third-party employers, including contractors or subcontractors, absent actual knowledge.
Identity and Work Authorization Information – The only way to achieve a truly effective and efficient worksite enforcement system is by deploying state-of-the art technology in the process. A new verification system must make false documents and identity theft ineffective so that compliant employers can be assured of a legal workforce. One way to achieve effective and efficient worksite enforcement may be to include biometric identifiers or other state-of-the-art technology in the identity and work authorization process that is capable of automatically recognizing an individual’s identity.
Fair Enforcement – Enforcement and sanctions applied against employers need to be reasonable and consistent with the violation. Punishment should be severe for intentional violations, but not for administrative errors that easily could be corrected. A grace period should be provided to allow employers to correct technical errors.
Contingent Offer of Employment – Employers should have the option of using the electronic employment eligibility verification system after a contingent offer of employment is accepted, but before the employee commences work as long as the system is administered on a consistent, non-discriminatory basis.
Good Faith Reliance Standard – An electronic employment verification system should provide a comprehensive “Good Faith” reliance standard for employment decisions made on the basis of using the system.
Non Discrimination and Privacy – Any employment verification system must provide adequate protection against discrimination as well as protect privacy for employers, employees and applicants.
Prospective Application of Verification System – Any new electronic employment verification system should only apply to individuals hired after the enactment of the system. Enforcement of existing statutes should be used to identify ineligible individuals who are currently employed by organizations.