EPIC Spotlight on Surveillance -April 2006

April 2006:
Expansion of Basic Pilot Would Steer Employment Verification Toward Disaster

EPIC’s “Spotlight on Surveillance” project scrutinizes federal government programs that affect individual privacy. For more information, see previous Spotlights on Surveillance. This month, Spotlight surveys the Basic Pilot employment eligibility verification system conducted jointly by the Social Security Administration (SSA) and the Department of Homeland Security.

Lawmakers are debating a bill, H.R. 4437, that would greatly expand the Basic Pilot system, making its use mandatory for all employers nationwide.¹ This would cost $405 million from 2006-2010, according to the Congressional Budget Office.² In the Fiscal Year 2007 budget request, President Bush seeks $135 million to expand Basic Pilot.³ However, a recent Government Accountability Office review of the employment eligibility verification program shows that the system is riddled with problems that would be exacerbated by nationwide expansion.⁴

The Immigration Reform and Control Act of 1986 (IRCA) made it illegal for employers to “knowingly” employ unauthorized workers, and Basic Pilot grew out of the requirement for work-eligibility verification.⁵ Basic Pilot is a voluntary employment eligibility verification system created in 1997 and implemented in all 50 states.⁶ SSA also runs the Employee Verification System and Social Security Number Verification System, which verify Social Security numbers but do not verify employment eligibility.⁷


Basic Pilot has different processes for citizens and non-citizens. Source: Government Accountability Office

A new employee is required to fill out an Employment Eligibility Verification form (commonly known as an I-9 form) stating that she is authorized to work in the United States, and produce identification.⁸ This identification can be a configuration of one or two documents from a list of 29 possible items, including U.S passport, driver’s license, Social Security card, and school ID card.⁹ Employers do not need to verify the authenticity of the ID documents, but they do need to keep a copy of them on file.¹⁰ The documents must merely pass a good-faith test: Do they look real? If an employee is found to be unauthorized, the employer must terminate her employment. Employers who do not end employment of unauthorized workers or who knowingly hire unauthorized workers may be fined up to $11,000 for each ineligible employee.¹¹

In Basic Pilot, run by DHS’s Citizenship and Immigration Services, the employer voluntarily fills out an online form with the new employee’s name, date of birth and Social Security Number within three days of the employee’s hire date. This information is checked against Social Security Administration databases to verify identity and, if the employee is a non-citizen, her data is then checked against Homeland Security Databases to verify employment eligibility. If eligibility cannot be confirmed, Basic Pilot sends a tentative nonconfirmation of work authorization status. The employee has eight working days to contest this decision.

In August 2005, the Government Accountability Office reviewed Basic Pilot and found several problems, the most significant being that the program could not detect identity fraud.¹² Other problems include employer noncompliance and Homeland Security delays and errors in entering information into its databases.¹³ GAO also said rampant document and identity fraud “have made it difficult for employers who want to comply with the employment verification process to ensure that they hire only authorized workers and have made it easier for unscrupulous employers to knowingly hire unauthorized workers.”¹⁴

There are 29 documents that can be used, in various configurations,
to establish identity and employment eligibility.

Source: Government Accountability Office

The significant identity fraud problem in the program is this: Basic Pilot can verify if identification documents are real, but the program cannot verify that the documents belong to the employee who supplies them. “In addition, the Basic Pilot Program does not assist employers in verifying the work authorization status of employees whose status requires reverification and therefore does not help employers detect document or identity fraud in the reverification process,” GAO said.¹⁵

The identity fraud problem stems from the use of the Social Security card as an identification document. “The card was never intended and does not serve as a personal identification document -- that is, the card does not establish that the person presenting the card is actually the person whose name and SSN appear on the card,” Frederick G. Streckewald, SSA Assistant Deputy Commissioner, said in Congressional testimony in March.¹⁶ He continued, saying, “Although we have made the card counterfeit resistant, it does not contain information that would allow the card to be used as proof of identity.”

Also in Congressional testimony in March, EPIC Executive Director Marc Rotenberg explained that the widespread use of Social Security numbers in the private sector contribute to identity theft; they are considered the “keys to the kingdom” to obtain records about individual consumers.¹⁷ He detailed the problems that would occur if Social Security numbers became the basis for linking different record systems:

As these uses are expanded to determine citizenship, for example, or to determine employment eligibility, the increasing risks of misuse expand as well, as do the targets of opportunity and incentives for people to take advantage of the Social Security number and use it in ways that will cause actual harm and crime to individuals.¹⁸

Citizenship and Immigration Service officials explained another problem with a nationwide expansion of Basic Pilot. They told GAO that an expansion would create significant backlogs in employment verification.¹⁹ One problem is that, in fiscal year 2004, “about 15 percent of queries authorized by DHS required manual verification by immigration status verifiers.”²⁰ In 2005, there were about 1 million Basic Pilot verifications.²¹ Some of these manual verifications took up to two weeks to resolve.²²

Of 6.5 million eligible employers nationwide, about 8,000 are enrolled in the voluntary Basic Pilot program.²³ However, in fiscal year 2004, only 2,300 employers used the system.²⁴

Current legislation being debated in Congress, H.R. 4437, would mandate that all employers use Basic Pilot to check the employment eligibility of all new hires. By 2009, three years after the bill’s enactment, federal, state, and local governments and some private employers would need to use Basic Pilot to verify employment eligibility of all employees; this would encompass about 25 million people.²⁵ By 2012, all other employers would need to verify employment eligibility for all employees, about 120 million workers, according to the Congressional Budget Office.²⁶ If Basic Pilot is expanded nationwide, its significant problems must first be fixed to avoid substantial negative effects on the public workforce.

² Congressional Budget Office, Cost Estimate: H.R. 4437 Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, at 3 (Dec. 13, 2005) (hereinafter “CBO Report on H.R. 4437”), available at http://www.cbo.gov/ftpdoc.cfm?index=6954&type=1.

³ Office of Management and Budget, Budget of the United States: Fiscal Year 2007 (Feb. 2006), available at http://www.whitehouse.gov/omb/budget/fy2007/pdf/budget/budget.zip.

⁴ Government Accountability Office, Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts, GAO-05-813, at 5-6 (Aug. 2005) (hereinafter “GAO Report on Basic Pilot”) available at http://www.gao.gov/new.items/d05813.pdf.

⁵ 8 U.S.C. § 1324a et seq (1986).

⁶ Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. §1324a(b) (1996) (hereinafter “IRIRA”); Basic Pilot Extension Act, Pub. L. 107-128 (2001); and Basic Pilot Program Extension and Expansion Act, Pub. L. 108-156 (2003).

⁷ Testimony of Patrick P. O’Carroll Jr., Inspector General, Social Security Administration, at a Hearing on Administrative Challenges Facing the Social Security Administration Before the U.S. Senate Committee on Finance (Mar. 14, 2006) (hereinafter “O’Carroll Testimony on Basic Pilot”).

⁹ Employment Eligibility Immigration Form (Form I-9), OMB No. 1615-0047, at 3.

¹² GAO Report on Basic Pilot at 5, supra.

¹⁶ Statement of Frederick G. Streckewald, Assistant Deputy Commissioner, Disability and Income Security Programs, Social Security Administration, at a Hearing on Social Security Number High-Risk Issues Before the Subcommittee on Social Security of the U.S. House of Representatives Committee on Ways and Means (Mar. 16, 2006)

¹⁷ Testimony of Marc Rotenberg, President and Executive Director, Electronic Privacy Information Center, at a Hearing on Social Security Number High-Risk Issues Before the Subcommittee on Social Security of the U.S. House of Representatives Committee on Ways and Means (Mar. 16, 2006) (Prepared Statement for the Record, available at http://www.epic.org/privacy/ssn/mar_16test.pdf).

¹⁹ GAO Report on Basic Pilot at 6, supra.

²¹ Testimony of James B. Lockhart III, Deputy Commissioner of Social Security, Social Security Administration, at a Hearing on Social Security Number High-Risk Issues Before the Subcommittee on Social Security of the U.S. House of Representatives Committee on Ways and Means (Feb. 16, 2006).

²² GAO Report on Basic Pilot at 24, supra.

²³ O’Carroll Testimony on Basic Pilot, supra.

²⁴ GAO Report on Basic Pilot at 10, supra.

²⁵ CBO Report on H.R. 4437 at 4, supra.