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Work bill would create new ID database

Senate takes up draft legislation creating massive Homeland Security database that would say "yes" or "no" to an employee's eligibility to work.

The U.S. Congress is poised to create a set of massive new government databases that all employers must use to investigate the immigration status of current and future employees or face stiff penalties.

The so-called Employment Eligibility Verification System would be established as part of a bill that senators began debating on Monday, a procedure that is likely to continue through June and would represent the most extensive rewrite of immigration and visa laws in a generation. Because anyone who fails a database check would be out of a job, the proposed database already has drawn comparisons with the "no-fly list" and is being criticized by civil libertarians and business groups.

All employers--at least 7 million, according to the U.S. Chamber of Commerce--would be required to verify identity documents provided by both existing employees and potential hires, the legislation says. The data, including Social Security numbers, would be provided to Homeland Security, on penalty of perjury, and the government databases would provide a work authorization confirmation within three business days.

There is no privacy requirement that the federal government delete the information after work authorization is given or denied. Employers would be required to keep all the documentation in paper or electronic form for seven years "and make it available for inspection by officers of the Department of Homeland Security" and the Department of Labor. It would also open up the IRS' databases of confidential taxpayer information to Homeland Security and its contractors.

Even parents who hire nannies might be covered. The language in the bill, called the Secure Borders, Economic Opportunity and Immigration Reform Act (PDF), defines an employer as "any person or entity hiring, recruiting, or referring an individual for employment in the United States" and does not appear to explicitly exempt individuals or small businesses. (Its Senate sponsors did not immediately respond on Monday to queries on this point.)

"All the problems that are attendant to the no-fly list are going to be a problem for a nationwide employment eligibility verification system."
--Timothy Sparapani, senior legislative counsel, ACLU

Backers of the proposal, including the Bush administration and many members of Congress, argue the changes to U.S. law are necessary to combat fraud and to ensure employees are truly eligible to work in the United States. According to an analysis by the Pew Hispanic Center, about 7.2 million undocumented immigrants were working in the United States as of March 2005.

"This bill brings us closer to an immigration system that enforces our laws and upholds the great American tradition of welcoming those who share our values and our love of freedom," President Bush said in his radio address on Saturday.

But the federal government's hardly stellar track record in keeping its databases accurate and secure is prompting an outcry over the verification system. Opponents argue that errors could unwittingly shut out millions of Americans who are actually eligible to work in the United States.

"All the problems that are attendant to the no-fly list are going to be a problem for a nationwide employment eligibility verification system," said Timothy Sparapani, senior legislative counsel for the American Civil Liberties Union. "And that's because the government as a rule is terrible about setting up massive data systems and then conditioning peoples' exercises of rights and privileges on the proper functioning of these databases."

Supporters of a federal verification requirement argue that some states, including North Carolina, Georgia, Colorado, Idaho and Arizona, already require employers to engage in some sort of verification--but Sparapani says they're far less extensive and intrusive.

One well-known example of buggy federal databases can be found in the no-fly list, which is intended to keep known terrorists off commercial airplanes. But it's flagged many other people, including Sen. Ted Kennedy (D-Mass.), for questioning at security checkpoints.

In 1996, Congress enacted a related law colloquially known as the "deadbeat dad database," that required employers to report new hires to the federal government. But unlike the current proposal, the new-hire database did not have the ability to deny employment authorization.

The verification system also would likely create innumerable headaches for employers charged with the task of screening the estimated 146 million Americans in the workforce today.

"It would be one of the most fundamental shifts in employment verification in our generation," said Mike Aitken, director of governmental affairs for the Society for Human Resource Management, which has expressed strong reservations about that portion of the bill.

Groups that favor lower immigration levels, however, applaud the measure. Jessica Vaughn, senior policy analyst for the Center for Immigration Studies, a nonprofit think tank, said the system "is an efficient one, it's an effective one, and it's very easy for employers to use, and I think they can pretty quickly get to a point where everyone can use it."

Privacy worries
Sen. Patrick Leahy, a Vermont Democrat who heads the Judiciary Committee, said on Monday that the immigration proposal was problematic.

"Like the Real ID Act that was forced on the American people outside the normal legislative process, this requirement is yet another example of the administration's consistent denigration of Americans' rights, including the right to privacy," Leahy said. "From America's country stores to our largest corporations, employers will now be de facto immigration officials, and potential employees will be presumed illegal until they prove themselves citizens."

Support for the bill is broader than the Bush administration, however. Prominent Democrats, including Kennedy and Senate Majority Leader Harry Reid of Nevada, have endorsed it, with Kennedy calling it a reasonable "compromise." Reid said "we have the opportunity to pass a law that treats people fairly and strengthens our economy."

"It would be one of the most fundamental shifts in employment verification in our generation."
--Mike Aitken, director of governmental affairs, Society for Human Resource Management

Jim Harper, director of information policy studies at the Cato Institute, said he worries that the verification system, or the EEVS, will grow beyond its initial plan.

"The system will migrate to all kinds of new uses," Harper said. "Our pictures will be available for government officials to pull up whenever we deal with them and the federal surveillance infrastructure will grow. Watch for news in a few years of government officials and employers using EEVS to play 'Hot or Not' using drivers license photos."

Hiring or continuing to keep illegal aliens on a company's payroll could carry civil fines for employers ranging from $5,000 to $75,000 per unauthorized employee, and failure to keep the requisite records could carry fines of up to $15,000 per violation. Employers that engage in "a pattern or practice of knowing violations" could receive monetary penalties of up to $75,000 or up to six months in prison.

Another privacy concern, Harper said, is how the proposal opens access to IRS databases. It says that information on "each person who has filed" a tax return after 2005 will be available to Homeland Security and its contractors, who are required to undergo a privacy assessment every three years to ensure that confidential data is not lost, stolen or misused.

"I think it's a horrifyingly bad idea," said James Carafano, a senior fellow at the Heritage Foundation, of the mandatory verification system. "Most people in this country who unlawfully get a job do so through document fraud, which means they get some legitimate data and then they just present it as their own. This system is not going to check that."

The idea of electronically verifying the eligibility of employees to work in the United States is not new, but so far, it has been almost exclusively optional. Some 14,000 U.S. employers--including all Dunkin' Donuts franchises, as highlighted by President Bush last summer--are already enrolled in a voluntary program, called the Employment Eligibility Verification Basic Pilot.

Through that system, employers key data from I-9 employment eligibility forms into an online interface and transmit it to Homeland Security. That department then checks the validity of the person's name, Social Security number, date of birth and citizenship information against Social Security Administration databases and responds, typically within a day or two, with an answer about the applicant's eligibility for work.

Making such a system mandatory is not exactly a new idea. In December 2005, the House of Representatives voted 239-182 for a so-called border security bill that included related--but not identical--requirements for employer verification.

The idea also appeared in the Senate's immigration proposal last year. But a handful of U.S. senators including Chuck Grassley, an Iowa Republican, and Barack Obama, an Illinois Democrat, introduced an amendment, which passed 59-39, that was supported by the ACLU because it would have allowed Americans to sue the government for back pay and attorneys fees if they were wrongfully denied employment through the electronic screening process. The latest bill does not allow such an option.

"We need an electronic verification system that can effectively detect the use of fraudulent documents, significantly reduce the employment of illegal workers, and give employers the confidence that their workforce is legal," Obama said in a statement at the time.

According to a Congressional Budget Office report last year (PDF), similar verification requirements in last year's Senate bill were expected to produce "very few EEVS errors that would lead to compensation for lost wages, particularly for native-born workers." Specifically, the office predicted 10 errors per million inquiries for native-born workers and a 0.4 percent error rate for foreign-born workers, which they estimated would decline to 0.025 percent by 2011 because of "system improvements."

But Sparapani argued that virtually all government databases are "riddled with errors" and predicted inconveniences for workers beholden to the nationwide system would be commonplace, particularly if "they set this thing up and do not build in an instant 24-hour hotline with people at an administrative agency, hiring thousands of (people) to answer phone calls and handle data requests."

A year and a half to comply
The immigration bill currently being debated would effectively make today's voluntary system mandatory and expand it to check birth and death records, Department of State passport and visa records, and state drivers license records. By 2013, if a person wanted to present a drivers license, it would have to be one that complies with the requirements of the controversial Real ID Act. (A valid passport or a combination of vital records documents could generally be substituted.)

The changes would take place through multiple steps. Within 18 months of the bill's enactment, all employers would be required to verify new hires or any existing employees whose documentation had expired. Some industries, such as those that deal with homeland security or contract with the government, would be compelled to participate almost immediately upon the bill's passage.

The Society for Human Resource Management estimates that 25,000 to 30,000 employers would have to be enrolled in the system each day to get everyone covered during that period, which would likely require huge budget increases and the creation of a new bureaucracy at Homeland Security.

No later than three years after the bill's enactment, all employers would be required to verify the work eligibility of each of their employees--regardless of how long they have been employed--who had not yet been screened.

According to the Government Accountability Office, last year's immigration proposal, which included similar provisions, was estimated to cost $11.7 billion per year. Bush administration officials fielding reporters' questions at a press conference last week weren't able to pin a number to this year's effort.

Another glaring problem, critics say, is that the current screening system has not proven itself resistant to fraud.

Notably, it doesn't have any way of directly determining whether a job applicant has presented an entirely fabricated identity, which is what led to a high-profile flap last year involving illegal workers at six meatpacking facilities operated by Swift & Co.

Raids by Homeland Security Department agents in December resulted in thousands of immigration-related arrests, including charges that hundreds of people had stolen others' identities to secure jobs with the Greeley, Colo.-based company. But as a Swift executive told a House of Representatives committee last month, the company had "played by all the rules," counting itself as one of the few U.S. employers that had used Basic Pilot since 1997, but had concluded as a result of the raids that the system is "fatally flawed."

"As currently structured, Basic Pilot does not detect duplicate active records in its database," John Shandley, the company's senior vice president of human resources, told politicians. "The same Social Security number could be in use at another employer, and potentially multiple employers, across the country."

In a recent statement about the bill, the White House maintained that the proposal will allow for "unprecedented" information sharing among federal and state agencies, and that Homeland Security will be able to receive "information on multiple uses of the same Social Security number by more than one individual."

One provision in the bill calls for the design of the verification system to "allow for auditing use of the system to detect fraud and identify theft," including development of algorithms that "detect potential identity theft, such as multiple uses of the same identifying information or documents."

The expanded, mandatory system would also have to be devised in a way that allows employers to compare the photograph of a person on an identity document presented during the hiring process against digital photographs stored in databases by whoever issued the identity card, such as a motor vehicle employee.

Finally, the bill includes broadly worded provisions that attempt to make the underlying documents less prone to counterfeiting. It calls for the Social Security Administration, for instance, to issue "fraud-resistant, tamper-resistant and wear-resistant" cards and to consider the feasibility of including a photograph and other biometric information as well.

The ACLU's Sparapani argued that the bill's penalties for noncompliance aren't tough enough to discourage unscrupulous employers from continuing to pay undocumented workers under the table. Under the new rules, "the black market economy is likely to grow rather than shrink," he said.