Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts
Published: 2005-08-31T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The opportunity for employment is one of the most important magnets attracting illegal immigrants to the United States. Immigration experts state that strategies to deter illegal immigration require both a reliable employment eligibility verification process and a worksite enforcement capacity to ensure that employers comply with immigration-related employment laws. This report examines (1) the current employment verification (Form I-9) process and challenges, if any, facing verification; and (2) the priorities and resources of U.S. Immigration and Customs Enforcement's (ICE) worksite enforcement program and any challenges in implementing the program.
section_title: What GAO Found
paragraphs: The current employment verification process is based on employers' review of documents presented by new employees to prove their identity and work eligibility. On the Form I-9, employers certify that they have reviewed employees' documents and that the documents appear genuine and relate to the individual presenting them. However, various studies have shown that document fraud (use of counterfeit documents) and identity fraud (fraudulent use of valid documents or information belonging to others) have made it difficult for employers who want to comply with the employment verification process to hire only authorized workers and easier for unscrupulous employers to knowingly hire unauthorized workers. The large number and variety of documents acceptable for proving work eligibility have also hindered verification efforts. In 1997, the former Immigration and Naturalization Service (INS), now part of the Department of Homeland Security (DHS), issued an interim rule on a reduction in the number of acceptable work eligibility documents and, in 1998, proposed a further reduction, but this proposal has not yet been finalized. DHS is currently reviewing the list of acceptable work eligibility documents, but has not established a target time frame for completing this review. The Basic Pilot Program, a voluntary program through which participating employers electronically verify employees' work eligibility, has potential to help enhance the verification process and substantially reduce document fraud. Yet, current weaknesses in the program, such as the inability of the program to detect identity fraud, DHS delays in entering data into its databases, and some employer noncompliance with pilot program requirements could, if not addressed, have a significant impact on the program's success. Furthermore, U.S. Citizenship and Immigration Services officials stated that the current Basic Pilot Program may not be able to complete timely verifications if the number of employers using the program significantly increased. Worksite enforcement is one of various immigration enforcement programs that compete for resources and, under the former INS and now under ICE, worksite enforcement has been a relatively low priority. Consistent with DHS's mission to combat terrorism, after September 11, 2001, INS and then ICE focused worksite enforcement resources mainly on removing unauthorized workers from critical infrastructure sites to help address those sites' vulnerabilities. Since fiscal year 1999, the numbers of employer notices of intent to fine and administrative worksite arrests have generally declined, according to ICE, due to various factors such as document fraud, which makes it difficult to prove employer violations. ICE has not yet developed outcome goals and measures for its worksite enforcement program, which, given limited resources and competing priorities for those resources, may hinder ICE's efforts to determine resources needed for the program.

section_title: Letter
paragraphs: According to the final report of the U.S. Commission on Immigration  Reform, immigration contributes to the U.S. national economy by helping  to keep viable segments of certain labor-intensive industries, expand  foreign trade, provide valuable language and cultural expertise to U.S.  companies, and contribute to the economic revitalization of some  communities. Yet, the commission also noted that immigration,  particularly illegal immigration, has adverse consequences, such as  helping to depress wages for low-skilled workers and creating net fiscal  costs for state and local governments. Aliens, including temporary foreign  workers, legally enter and reside in the United States through a variety of  channels, such as immigration and work visa programs, but aliens also  illegally enter or overstay visas and reside in the United States. The former  U.S. Immigration and Naturalization Service (INS) estimated that about   7 million unauthorized aliens resided in the United States by January 2000,  and other organizations estimated that the unauthorized alien population  was about 10 million in 2004.
The opportunity for employment is one of the most important magnets  attracting illegal aliens to the United States. To help reduce the attraction  of this magnet, in 1986 Congress passed the Immigration Reform and  Control Act (IRCA), which made it illegal for individuals and entities to  knowingly hire, continue to employ, or recruit or refer for a fee  unauthorized workers. The act established a two-pronged approach for  helping to limit the employment of unauthorized workers: (1) an  employment verification process through which employers verify newly  hired employees’ work eligibility and (2) a sanctions program for fining  employers who do not comply with the act. Under the employment  verification process, employees and employers must complete the  Employment Eligibility Verification Form (Form I-9) to certify that the  employees are authorized to work in the United States. Those employers  who do not follow the verification process can be sanctioned for  knowingly hiring, continuing to employ, or recruiting or referring for a fee  unauthorized workers or for improperly completing Forms I-9. Efforts to  enforce these sanctions are referred to as worksite enforcement.
In the nearly 20 years since the passage of IRCA, the employment  eligibility verification process and worksite enforcement program have  remained largely unchanged. Following the passage of the act, the U.S.  Commission on Immigration Reform and various immigration experts  concluded that deterring illegal immigration requires, among other things,  strategies that focus on disrupting the ability of illegal aliens to gain  employment through a more reliable employment eligibility verification  process and a more robust worksite enforcement capacity. In particular,  the commission report and other studies have found that the single most  important step that could be taken to reduce unlawful migration is the  development of a more effective system for verifying work authorization.  Yet in the 8 years since the commission’s final report, few substantial  enhancements have been applied to the employment verification process,  and the approach continues to rely on the Form I-9, a procedure of which  the commission was roundly critical because of its vulnerability to fraud  and potential to cause discrimination. Moreover, in previous work, we  reported that employers of unauthorized aliens faced little likelihood that  INS would investigate, fine, or criminally prosecute them, a circumstance  that provides little disincentive for employers who want to circumvent the  law.
You asked us to review the federal government’s policies and programs  aimed at enforcing immigration laws in the workplace. This report  addresses the following questions: (1) How does the current employment  verification process function and what are the challenges facing  verification? (2) What are the priorities and resources of U.S. Immigration  and Customs Enforcement’s (ICE) worksite enforcement program and  what challenges, if any, has the agency faced in implementing the  program?
To address these objectives, we interviewed officials from the Department  of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services  (USCIS) and ICE, and officials from the Social Security Administration  (SSA) in headquarters and selected field locations. We obtained from them  information on the Form I-9 process and the Basic Pilot Program, a  voluntary program through which participating employers verify  employees’ work eligibility by electronically checking information on  employees’ Forms I-9 with information in SSA and DHS databases. We  analyzed information from these agencies, as well as related laws and  regulations, to determine how the current Form I-9 process functions,  identify any challenges in the current Form I-9 process, and examine DHS  plans to modify the process. We also interviewed representatives of   23 employers; 12 employer, employee, and advocacy groups; and   6 immigration experts to obtain their views on the Form I-9 process and  the Basic Pilot Program. We selected the employers to interview based on  a mix of criteria, such as the number of employers’ pilot program queries  and geographic location. We selected the employer, employee, and  advocacy groups to interview based on a mix of criteria, such as industry  representation and range of views on immigration issues. In addition, we  examined USCIS and SSA guidance, instructions, and agreements for the  Basic Pilot Program and the results and methodology of an independent  evaluation of the program completed by the Institute for Survey Research  at Temple University and Westat in June 2002. We analyzed data on  employer participation in and use of the Basic Pilot Program to determine  how participation and use have changed since fiscal year 2000. We  assessed the reliability of these data by reviewing them for accuracy and  completeness, interviewing agency officials knowledgeable about the data,  and examining documentation on how the data are entered, categorized,  and verified in the databases. We determined that the independent  evaluation and these data were sufficiently reliable for the purposes of our  review.
To obtain information on the worksite enforcement program priorities and  resources, we interviewed officials from ICE, the SSA Office of the  Inspector General, the Department of Labor, the Federal Bureau of  Investigation, and the Office of Special Counsel for Immigration-Related  Unfair Unemployment Practices. We also interviewed officials from 12 of  the 26 ICE Special Agent in Charge field offices and 4 U.S. Attorney’s  Offices that were located in the same areas as 4 of the field offices we  visited. We selected the 12 field offices based on a mix of criteria, such as  number of investigations conducted by field offices, number of  investigators in each field office, and geographic location. We analyzed  ICE headquarters and field office guidance, memos, and other documents  on worksite enforcement to evaluate ICE’s priorities for and management  of worksite enforcement efforts. In addition, we analyzed ICE data on  worksite enforcement and assessed the data reliability by reviewing data  for accuracy and completeness, interviewing agency officials  knowledgeable about the data, and examining documentation on how the  data are entered, categorized, and verified in the databases. We  determined that these data were sufficiently reliable for the purposes of  our review. For more detailed information on our scope and methodology,  see appendix II. We conducted our work from September 2004 through  July 2005 in accordance with generally accepted government auditing  standards.
subsections: section_title: Background
paragraphs: IRCA provided for sanctions against employers who do not follow the  employment verification (Form I-9) process. Employers who fail to  properly complete, retain, or present for inspection a Form I-9 may face  civil or administrative fines ranging from $110 to $1,100 for each employee  for whom the form was not properly completed, retained, or presented.  The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)  of 1996 limited employer liability for certain technical violations of Form   I-9 paperwork requirements. According to the act, a person or entity is  considered to have complied with the employment verification process if  the person or entity made a good faith attempt to properly complete the  Form I-9. Employers who knowingly hire or continue to employ  unauthorized aliens may be fined from $275 to $11,000 for each employee,  depending on whether the violation is a first or subsequent offense.  Employers who engage in a pattern or practice of knowingly hiring or  continuing to employ unauthorized aliens are subject to criminal penalties  consisting of fines up to $3,000 per unauthorized employee and up to   6 months imprisonment for the entire pattern or practice.
ICE is primarily responsible for enforcing the employer sanction  provisions of IRCA as well as many other immigration-related laws. ICE  has approximately 5,000 investigative agents in 26 Office of Investigations  field offices that are headed by special agents in charge. ICE’s Worksite  Enforcement/Critical Infrastructure Unit oversees programs to protect  U.S. critical infrastructure, including military, economic, industrial, and  transportation infrastructure, and manages the agency’s worksite  enforcement efforts. Prior to the creation of ICE in March 2003, INS  enforced IRCA and other immigration-related laws.
subsections: section_title: Basic Pilot Program Employment Verification Process
paragraphs: IIRIRA required INS to operate three voluntary pilot programs to test  electronic means for employers to verify an employee’s eligibility to work:  the Basic Pilot Program, the Citizen Attestation Verification Pilot Program,  and the Machine-Readable Document Pilot Program. The three pilot  programs were to test whether pilot verification procedures could improve  the existing Form I-9 process by reducing (1) document fraud and false  claims of U.S. citizenship, (2) discrimination against employees,   (3) violations of civil liberties and privacy, and (4) the burden on  employers to verify employees’ work eligibility. IIRIRA established the  three pilot programs to be in effect for 4 years, but Congress extended  authorization for the pilots for an additional 2 years in 2002 and for  another 5 years in 2003. Congress also mandated DHS to expand the  Basic Pilot Program to employers in all 50 states by December 2004, which  DHS did. DHS terminated the Citizen Attestation Verification Pilot  Program and the Machine-Readable Document Pilot Program in 2003  because of technical difficulties and unintended consequences, such as  increased fraud and discrimination, identified in evaluations of the  programs.
The Basic Pilot Program is a part of USCIS’s Systematic Alien Verification  for Entitlements Program, which provides a variety of verification services  for federal, state, and local government agencies. USCIS estimates that  there are more than 150,000 federal, state, and local agency users that  verify immigration status through the Systematic Alien Verification for  Entitlements Program. In fiscal year 2004, about 2,300 employers actively  used the Basic Pilot Program within the Systematic Alien Verification for  Entitlements Program.
The Basic Pilot Program provides participating employers with an  electronic method to verify their employees’ work eligibility. Employers  may participate voluntarily in the Basic Pilot Program but are still required  to complete Forms I-9 for all newly hired employees in accordance with  IRCA. After completing the forms, these employers query the pilot  program’s automated system by entering employee information provided  on the forms, such as name and Social Security number, into the pilot Web  site within 3 days of the employees’ hire date. The pilot program then  electronically matches that information against information in SSA and, if  necessary, DHS databases to determine whether the employee is eligible  to work, as shown in figure 1. The Basic Pilot Program electronically  notifies employers whether their employees’ work authorization was  confirmed. Those queries that the DHS automated check cannot confirm  the pilot refers to USCIS staff, called immigration status verifiers, who  check employee information against information in other DHS databases.
In cases when the pilot system cannot confirm an employee’s work  authorization status either through the automatic check or the check by an  immigration status verifier, the system issues the employer a tentative  nonconfirmation of the employee’s work authorization status. In this case,  the employers must notify the affected employees of the finding, and the  employees have the right to contest their tentative nonconfirmations  within 8 working days by contacting SSA or USCIS to resolve any  inaccuracies in their records. During this time, employers may not take  any adverse actions against those employees, such as limiting their work  assignments or pay. When employees do not contest their tentative  nonconfirmations within the allotted time, the Basic Pilot Program issues  a final nonconfirmation for the employees. Employers are required to  either immediately terminate or notify DHS of the continued employment  of workers who do not successfully contest the tentative nonconfirmation  and those who the pilot program finds are not work-authorized.
section_title: Recent Proposals Related to Employment Verification and Worksite Enforcement
paragraphs: There is ongoing congressional consideration about employment  verification and worksite enforcement efforts, and various initiatives have  been proposed related to these issues, including possible new temporary  worker programs. Since January 2004, the current administration has  discussed the possibility of initiating a guest worker program in which  foreign workers would be granted status for employment in the United  States for a specified period of time. Similarly, some recent legislative  proposals would provide a means for foreign workers to obtain temporary  employment and possible permanent residency or citizenship at a later  date. Other initiatives propose revising visa programs to increase the  number of foreign workers legally admitted to the United States. In  addition, legislative proposals have addressed methods for enhancing  employment verification and worksite enforcement efforts. For example,  one proposal would make use of the Basic Pilot Program mandatory for all  employers, and another would increase the fine amounts for employers  who knowingly hire unauthorized workers. These initiatives reflect  differing perspectives on employment verification and worksite  enforcement and touch on a variety of related issues, such as the number  of foreign workers, if any, needed in the United States, the economic  impact of illegal aliens residing in the country, and policy decisions on  ways to address the millions of illegal aliens in the United States.
section_title: Various Weaknesses Have Undermined the Employment Verification Process, but the Basic Pilot Program Shows Potential to Enhance the Process
paragraphs: The current employment verification process relies on employers’ review  of work eligibility documents to determine whether employees are  authorized to work, but the process has several weaknesses. Document  and identity fraud have hindered employers’ efforts to reliably verify  employees’ work eligibility under the Form I-9 process. In addition, the  large number and variety of documents acceptable for proving work  eligibility have undermined the process. We have previously reported on  the need to reduce the number of acceptable work eligibility documents  and to improve the integrity of the documents. The Basic Pilot Program,  as a voluntary, automated verification program, offers a mechanism with  potential to enhance the employment verification process by reducing  document fraud. ICE officials said that access to Basic Pilot Program  information could help the agency better target its worksite enforcement  efforts by identifying employers who do not follow program requirements.  However, existing weaknesses in the program, such as the inability of the  program to detect identity fraud, delays in entering data into DHS  databases, and some employer noncompliance with pilot program  requirements, could become more significant and additional resources  could be needed if employer participation in the program greatly increased  or was made mandatory.
subsections: section_title: Current Employment Verification Process Based on Employers’ Review of Documents
paragraphs: In 1986, IRCA established the employment verification process based on  employers’ review of documents presented by employees to prove identity  and work eligibility. Under the process, employers must request that newly  hired employees present a document or documents that confirm  employees’ identity and work eligibility. On the Form I-9, employees must  attest that they are U.S. citizens, lawfully admitted permanent residents, or  aliens authorized to work in the United States. Employers must then  certify that they have reviewed the documents presented by their  employees to establish identity and work eligibility and that the  documents appear genuine and relate to the individual presenting them. In  making their certifications, employers are expected to judge whether the  documents presented are obviously counterfeit. Employers are deemed in  compliance with IRCA if they have followed the verification procedures,  including instances when an unauthorized alien may have presented  fraudulent documents that appeared genuine. In addition, on the Form I-9,  employers are required to reverify the employment eligibility of individuals  whose work authorization has expired, such as aliens with temporary  work authorization, to determine whether the individuals are authorized to  continue to work.
section_title: Document and Identity Fraud Have Undermined the Form I-9 Process
paragraphs: Since the passage of IRCA in 1986, document fraud (use of counterfeit  documents) and identity fraud (fraudulent use of valid documents or  information belonging to others) have made it difficult for employers who  want to comply with IRCA to ensure that they employ only authorized  workers through the current verification and reverification processes. In  its 1997 report to Congress, the U.S. Commission on Immigration Reform  noted that the widespread availability of false documents made it easy for  unauthorized aliens to obtain jobs in the United States. In 1999, we  reported that large numbers of unauthorized aliens have either  fraudulently used valid documents that belong to others or presented  counterfeit documents as evidence of employment eligibility.  Furthermore, in 2004 we reported that unauthorized workers were able to  use false documents to illegally gain entry to secure areas of critical  infrastructure sites, such as airports, nuclear power plants, and military  bases. Representatives from some of the employers and employer  associations we interviewed for this review indicated that, in cases where  employees present documents that employers suspect of being  counterfeit, employers may not request that these employees present other  documents proving their work eligibility because the employees could  claim that employers are discriminating against them. To help protect  against discriminatory hiring practices, such as employers requesting  specific documents from foreign-looking or sounding employees,  employers are prohibited under IRCA from requesting that new employees  present specific documents from among the list of acceptable documents  to prove their identity and work eligibility.
Although studies suggest that the majority of employers comply with IRCA  and try to hire only authorized workers, the studies have also noted that  some employers knowingly hire unauthorized workers, often to exploit the  workers’ low cost labor. In 1997, the U.S. Commission on Immigration  Reform reported that the minority of employers who knowingly hired  illegal aliens avoided sanctions by going through the motions of  compliance while accepting false documents. Likewise, in 1999 we  concluded that those employers who do not want to comply with IRCA  can intentionally hire unauthorized aliens under the guise of having  complied with the employment verification requirements by claiming that  unauthorized workers presented false documents to obtain employment.
section_title: Large Number and Variety of Acceptable Documents Have Hindered Employer Verification Efforts
paragraphs: The large number and variety of documents that are acceptable for  proving work eligibility have also complicated employer verification  efforts under IRCA. Following passage of IRCA in 1986, employees could  present any of 29 different documents to establish their identity and/or  work eligibility. In a 1997 interim rule, INS reduced the number of  acceptable work eligibility documents from 29 to 27. Eight of these  documents establish both identity and employment eligibility (e.g., U.S.  passport or permanent resident card); 12 documents establish identity  only (e.g., driver’s license); and 7 documents establish employment  eligibility only (e.g., Social Security card without the legend “Not Valid for  Employment”). The interim rule implemented changes to the list of  acceptable work eligibility documents mandated by IIRIRA and was  intended to serve as a temporary measure until INS issued final rules on  modifications to the Form I-9. In 1998, INS proposed a further reduction in  the number of acceptable work eligibility documents to 14 but did not  finalize the proposed rule.
Since the passage of IRCA, various studies have addressed the need to  reduce the number of acceptable work eligibility documents to make the  employment verification process simpler and more secure. In 1990, we  reported that the multiplicity of work eligibility documents contributed to  (1) employer uncertainty about how to comply with the employment  verification requirements and (2) discrimination against authorized  workers. A 1992 report prepared by the Senate Committee on the  Judiciary noted that the first step to simplifying the employment  verification process was to reduce the current list of acceptable work  eligibility documents and make them more counterfeit-proof. In 1998, INS  noted that, when IRCA was first passed, a long, inclusive list of acceptable  work eligibility documents was allowed for the Form I-9 to help ensure  that all persons who were eligible to work could easily meet the  requirements, but as early as 1990, there had been evidence that some  employers found the list confusing. In 1999 we reported that various  studies of IRCA’s employment verification process advocated that the  number of documents that employees can use to demonstrate employment  eligibility should be reduced to make the employment verification process  more secure and easier to understand.
Additionally, some of the employers, employer associations, and  immigration experts we interviewed for this review told us that the large  number of documents acceptable for proving work eligibility and the fact  that the Form I-9 has not been updated have impeded employer efforts to  verify employment eligibility. Representatives from three employer  associations said that member employers have expressed concerns that  the Form I-9 has not been updated to reflect changes in the list of  acceptable work eligibility documents, causing confusion among some  employers regarding which documents are acceptable. In addition, among  the 23 employers we interviewed, 5 discussed the need to update the Form  I-9 to reflect revisions to the list of acceptable work eligibility documents.  Two of these employers told us that they manually edit the Form I-9 to  reflect the changes in the list of acceptable work eligibility documents.
DHS officials told us that the department is assessing possible revisions to  the Form I-9 process, including revisions to the number of acceptable  work eligibility documents, but has not established a target time frame for  completing this assessment. They said that the Handbook for Employers,  which provides guidance for completing the Form I-9, would also need to  be updated. In May 2005, DHS released an updated version of the Form I-9  that changed references from INS to DHS but did not modify the list of  acceptable work eligibility documents on the Form I-9 to reflect changes  made to the list by the 1997 interim rule. In the absence of final regulations  and an updated Form I-9 and handbook, employers, employees, and other  stakeholders may not clearly understand the Form I-9 process, particularly  which documents are acceptable for proving work eligibility.
section_title: Proposals Have Been Made to Improve Document Integrity
paragraphs: We have previously reported on efforts to enhance the integrity of  acceptable work eligibility documents, which could help reduce document  fraud and make the employment verification process more secure,  especially if the number of acceptable documents was reduced. For  example, in 1999 we reported that INS had taken steps to increase the  integrity of immigration documents, such as by issuing new employment  authorization documents with visible security features like holograms and  by issuing permanent resident cards with digital photographs and  fingerprint images. We noted that, although INS enhanced the integrity of  its documents, unauthorized aliens could present non-INS documents,  such as Social Security cards, to employers to prove work eligibility. In  1998, we reported on estimates of costs associated with alternative  proposals for SSA issuance of enhanced Social Security cards. We are  currently reviewing SSA efforts to enhance the integrity of Social Security  cards and how enhanced cards might strengthen the employment  verification process and plan to report on these issues next year.
In addition, we have previously reported on the possible use of biometrics  in verification and identification processes—such as those used at U.S.  ports of entry. Biometrics covers a wide range of technologies that can be  used to verify identity by measuring and analyzing human characteristics.  Biometrics can theoretically be very effective personal identifiers because  the characteristics they measure are thought to be distinct to each person.  Because they are tightly bound to an individual, biometrics are more  reliable, cannot be forgotten, and are less easily lost, stolen, or guessed.  While biometrics may show promise in enhancing verification and  identification processes, we have also reported on the trade-offs for using  biometric indicators, such as concerns regarding the protections under  current law for biometric data, the absence of clear criteria governing data  sharing, and infrastructure processes such as the binding of an identity to  the biometric data. We reported that while a biometric placed on a token,  such as a passport or visa, cannot necessarily link a person to his or her  identity, it can reduce the potential for an individual to assume multiple  identities. We also reported that although federal agencies are required by  statute to provide security protections for information collected and  maintained by or for the agency commensurate with the risk and  magnitude of harm that would result from unauthorized disclosure,  disruption, modification, or destruction of the information, poor  information security is a widespread federal problem with potentially  severe consequences. In reporting on the possible use of biometrics in  verification and identification processes, we identified several examples of  such risks associated with using biometric data.
Recent laws and legislative proposals have addressed possible ways to  enhance the integrity of documents and strengthen the employment  verification process. The Real ID Act of 2005 mandated that states must  meet minimum standards in developing and issuing driver’s licenses  before federal government authorities can accept state driver’s licenses as  identification for official purposes. These standards include (1) adding  physical security features to prevent counterfeiting and tampering,   (2) including common machine-readable technology on driver’s licenses,  and (3) requiring driver’s license applicants to provide evidence of their  dates of birth and Social Security numbers. The Intelligence Reform and  Terrorism Prevention Act of 2004 required SSA to form a task force to,  among other things, establish standards for safeguarding Social Security  cards from counterfeiting, tampering, alteration, and theft. In addition to  these laws, various legislative proposals address possible ways to make  identity and work eligibility documents more secure and to enhance the  employment verification process. For example, one recent proposal would  mandate that individuals can present only machine-readable, counterfeit  and tamper-resistant Social Security cards to obtain employment.  According to the proposal, these machine-readable cards would allow  employers to check employees’ work authorization status against  information maintained in an employment eligibility database. These laws  and proposals differ in the extent to which they address issues related to  enhancing employment verification through electronic means, such as the  availability and accessibility of machine-readable technology and the  security and privacy of information maintained on documents and in  databases.
section_title: Basic Pilot Program Shows Promise in Enhancing Employment Verification, but Current Weaknesses Could Undermine Increased Use
subsections: section_title: Basic Pilot Program May Help Employers Reliably Verify Work Eligibility and Decrease Document Fraud
paragraphs: Various immigration experts have noted that the most important step that  could be taken to reduce unlawful migration is the development of a more  effective system for verifying work authorization. In particular, the U.S.  Commission on Immigration Reform concluded that the most promising  option for verifying work authorization was a computerized registry based  on employers’ electronic verification of an employee’s Social Security  number with records on work authorization for aliens. The Basic Pilot  Program, which is currently available on a voluntary basis to all employers  in the United States, operates in a similar way to the computerized registry  recommended by the commission. Yet only a small portion—about 2,300  in fiscal year 2004—of the approximately 5.6 million employer firms  nationwide actively used the pilot program.
The Basic Pilot Program assists employers in detecting document fraud by  helping to eliminate employer guesswork as to whether information  contained on work eligibility documents presented by employees is  authentic or counterfeit. If newly hired employees present counterfeit  documents containing false information, the pilot program would not  confirm the employees’ work eligibility because the employees’ Form I-9  information, such as a false name or Social Security number, would not  match SSA and DHS database information when queried through the Basic  Pilot Program. In the evaluation of the Basic Pilot Program, the Institute  for Survey Research at Temple University and Westat found that the  program appeared to reduce unauthorized employment arising from  employee presentation of counterfeit or altered documents containing  false information. Twenty of the 22 employers we interviewed who  participated in the Basic Pilot Program indicated that the program helps  them to reliably verify newly hired employees’ work authorization status.
section_title: ICE Sees Additional Benefit in Access to Basic Pilot Program Data
paragraphs: ICE has no direct role in monitoring employer use of the Basic Pilot  Program and does not have direct access to program information, which is  maintained by USCIS. ICE officials noted that, in a few cases, they have  requested and received pilot program data from USCIS on specific  employers who participate in the program and are under ICE investigation.  ICE officials told us that program data could indicate cases in which  employers do not follow program requirements and therefore would help  ICE better target its worksite enforcement efforts toward those employers.  For example, the Basic Pilot Program’s confirmation of numerous queries  of the same Social Security number could indicate that the Social Security  number is being used fraudulently or that an unscrupulous employer is  knowingly hiring unauthorized workers by accepting the same Social  Security number for multiple employees. However, USCIS officials stated  that they have concerns about providing ICE with broader access to Basic  Pilot Program information for the worksite enforcement program. USCIS  officials said that, if ICE has access to pilot program information for  worksite enforcement purposes, that access might create a disincentive  for employers to participate in this voluntary program and could be used  for purposes other than identifying potentially unscrupulous employers.  These officials stated that employers may be less likely to join or  participate in the program because the employers may believe that they  are more likely to be targeted for a worksite enforcement investigation as  a result of program participation.
ICE suggested that there could be possible benefits to their worksite  enforcement efforts if employers were required to participate in a  mandatory automated verification program like the Basic Pilot Program.  ICE officials said that a mandatory automated verification system could  help ICE focus worksite enforcement efforts on employers who try to  evade using the program. They also stated that a mandatory system like  the pilot program could limit the ability of employers who knowingly hired  unauthorized workers to claim that the workers presented false  documents to obtain employment, assisting ICE agents in proving  employer violations of IRCA. Officials from 7 of the 12 Special Agent in  Charge field offices we interviewed suggested that a mandatory Basic Pilot  Program could help them better target their worksite enforcement efforts.
section_title: Basic Pilot Program Does Not Help Employers Detect Identity Fraud in Verifying Employees’ Work Eligibility
paragraphs: Although an automated verification program like the Basic Pilot Program  has potential to enhance the employment verification process and help  employers detect use of counterfeit documents, the program cannot  currently help employers detect identity fraud. In 2002 we reported that,  although not specifically or comprehensively quantifiable, the prevalence  of identity fraud seemed to be increasing, a development that may affect  employers’ ability to reliably verify employment eligibility. If an  unauthorized worker presents valid documentation that belongs to  another person authorized to work, the Basic Pilot Program may find the  worker to be work-authorized. Similarly, if an employee presents  counterfeit documentation that contains valid information and appears  authentic, the Basic Pilot Program may verify the employee as work- authorized. DHS officials told us that the department is currently  considering possible ways to enhance the Basic Pilot Program to help it  detect cases of identity fraud, for example, by modifying the program to  provide a digitized photograph associated with employment authorization  information presented by an employee. Yet, DHS cannot fully assess  possible ways to modify the Basic Pilot Program to address identity fraud  in the absence of data on the costs and feasibility of implementing such  modifications.
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. Employers currently may not  use the Basic Pilot Program to re-verify the employment eligibility of  individuals whose work authorization has expired, and employers agree  not to use the pilot program for reverification when registering to  participate in the program. Therefore, participating employers cannot fully  use the Basic Pilot Program to verify the work authorization status of all  employees for whom verification, including reverification, is required  under the Form I-9 process. According to one USCIS official, the pilot  program does not face any technological or other limitations that would  prevent the program from being used for reverification purposes, if such  use was required or allowed as part of the pilot program.
section_title: Delays in Data Entry May Lengthen the Pilot Program Verification Process
paragraphs: Another current weakness in the Basic Pilot Program that could affect the  program’s success if use increased or was made mandatory is delays in the  entry of information on immigrants’ and nonimmigrants’ arrivals and  employment authorization into DHS databases. Although the majority of  pilot program queries entered by participating employers are confirmed  via the automated SSA and DHS verification checks, about 15 percent of  queries authorized by DHS required manual verification by immigration  status verifiers in fiscal year 2004. According to USCIS, immigration  status verifiers typically resolve cases referred to them for verification  within 24 hours, but a small number of cases take longer. For example,  nine employers we interviewed reported that a small number of  immigration status verifier verifications took longer than 24 hours to  resolve, with a few verifications taking as long as 2 weeks to resolve.
Immigration status verifiers reported that the primary reason for queries to  require verification by them is because of delays in entry of employment  authorization information into DHS databases. USCIS officials told us that  those verifications that take longer than a few days to resolve are generally  caused by delays in the entry of data on employees who received  employment authorization documents generated by a computer and  camera that are not directly linked to DHS databases, such as those used  at ports of entry for refugees and at USCIS field offices. They said that  information on the employment authorization documents generated  through this process is electronically sent to USCIS headquarters for entry  but is sometimes lost or not entered into databases in a timely manner. By  contrast, employment authorization documents issued at USCIS service  centers are produced via computers that are used to update data in USCIS  databases, which USCIS officials told us represent the majority of  employment authorization documents currently issued by USCIS. The  Temple University Institute for Survey Research and Westat found that  verifications that require immigration status verifiers’ review lengthen the  time needed to complete the employment verification process. In addition,  among the 22 employers we interviewed, 7 reported that they may  experience some losses in work time, training, or money for background  checks and physicals when employees contest tentative nonconfirmations.
USCIS has taken steps to increase the timeliness and accuracy of  information entered into databases used as part of the Basic Pilot  Program. In June 2004, USCIS reported that, among other improvements, it  had started work to expedite data entry for new lawful permanent  residents and arriving nonimmigrants and to improve data entry for  changes in work authorization status. For example, USCIS said that it has  worked to reduce the time in which data are available for Basic Pilot  Program verifications by expediting submission of data on newly arrived  immigrants and nonimmigrants from ports of entry and field offices to  USCIS service centers for data entry. The agency reported that, as a result  of its efforts, data on new immigrants are now typically available for  verification within 10 to 12 days of an immigrant’s arrival in the United  States while previously, the information was not available for up to 6 to   9 months after arrival. Moreover, USCIS reported it has worked to  increase the timeliness and availability of temporary work authorization  information in its databases by increasing the number of employment  authorization documents issued by service centers as compared with the  number of documents issued through computers not directly linked to  DHS databases. The department reported that, while in 1999 less than half  of all employment authorization documents were issued by service  centers, over three-quarters of the cards are now issued through service  centers. USCIS officials told us that the agency has continued these efforts  to improve the timeliness and accuracy of information entered into DHS  databases and noted that the agency is currently planning to fund another  evaluation of the Basic Pilot Program that will include a review of the  accuracy of DHS database information.
Furthermore, analysis of the Basic Pilot Program database indicates that  the timeliness and accuracy of the DHS automated checks against the  Basic Pilot Program database have improved. In fiscal year 2004, about   10 percent of all queries were referred to DHS for verification. Among  those queries authorized by DHS, the percentage of queries verified by the  DHS automated check increased from about 67 percent in fiscal year 2000  to about 85 percent in fiscal year 2004, as shown in figure 2.
Although USCIS has taken some steps to improve the timeliness and  accuracy of information entered into databases used as part of the Basic  Pilot Program and plans to review the accuracy of database information as  part of its planned evaluation of the pilot program, USCIS cannot  effectively assess future use of the pilot program, including possible  increased program usage, without information on the costs and feasibility  of ways to further reduce delays in the entry of information into DHS  databases.
section_title: Employer Noncompliance with Pilot Program Procedures May Adversely Affect Employees
paragraphs: Another factor that may reduce the effectiveness of the pilot program if  usage is increased or made mandatory is employer noncompliance with  Basic Pilot Program requirements. These requirements are intended to  safeguard employees queried through the program from such harm as  discrimination or reduced training and pay. The Temple University  Institute for Survey Research and Westat evaluation of the Basic Pilot  Program concluded that the majority of employers surveyed appeared to  be in compliance with Basic Pilot Program procedures. However, the  evaluation found evidence of some noncompliance with these procedures  that specifically prohibit screening job applicants and taking actions that  adversely affect employees while they are contesting tentative  nonconfirmations, such as limiting employees’ work assignments or pay.  For example, 30 percent of the employers surveyed for the evaluation  reported restricting work assignments while employees contested  tentative nonconfirmations, a practice that is prohibited under the Basic  Pilot Program. Of the 22 employers we interviewed who participate in the  pilot, 7 reported using the Basic Pilot Program in a way that did not  conform with pilot program procedures, including using the pilot program  to screen job applicants before offering jobs to the applicants.
The Basic Pilot Program provides a variety of reports that may help USCIS  determine whether employers follow program requirements. For example,  these reports could help USCIS identify employers who do not appear to  refer employees contesting tentative nonconfirmations to SSA or DHS,  which is required under pilot program procedures. USCIS could then  follow up to determine if such employers are following pilot procedures  that require employers to refer all employees with tentative  nonconfirmations to SSA or DHS. USCIS officials told us that efforts to  review employers’ use of the pilot program have been limited by lack of  staff available to oversee and examine employer use of the program, and  they noted that there are currently 15 USCIS headquarters staff members  responsible for administering USCIS verification programs, including the  Basic Pilot Program. The officials said that, as part of the next evaluation  of the pilot program, USCIS plans to assess the extent to which employers  follow pilot program requirements and procedures, such as employer  adherence to requirements to notify employees of tentative  nonconfirmations. However, without information on the costs and  feasibility of routinely reviewing employers’ use of the pilot program,  USCIS cannot fully determine possible ways to regularly examine  employer use of the program and therefore the extent to which employers  comply with pilot program requirements.
section_title: Current Program May Not Complete Timely Verifications if Use Greatly Increased
paragraphs: According to USCIS officials, due to the growth in other USCIS  verification programs, current USCIS staff may not be able to complete  timely verifications if the number of employers using the Basic Pilot  Program were to significantly increase. In particular, these officials said  that if a significant number of new employers registered for the program  or if the program were mandatory for all employers or a segment of  employers, additional resources would be needed to maintain timely  verifications, given the growth in other verification programs. For  example, the REAL ID Act of 2005 mandated that states must meet  minimum standards in issuing driver’s licenses and nondriver  identification cards, including verifying the immigration status of all  noncitizen applicants, before federal government authorities can accept  the licenses and cards for official purposes beginning in 2008. Currently,  USCIS has approximately 38 immigration status verifiers available for  completing Basic Pilot Program verifications, and these verifiers reported  that they are able to complete the majority of current required checks  within their target time frame of 24 hours. However, USCIS officials said  that because of the growth in other verification programs that would  increase the number of verifications that require checks by immigration  status verifiers, the agency has serious concerns about its ability to  complete timely verifications if the number of Basic Pilot Program users  greatly increased.
USCIS officials also stated that the agency lacks funding to further expand  the Basic Pilot Program. The Basic Pilot Program and other verification  programs have been funded by fees USCIS receives from applicants for  adjudication of immigration and citizenship benefits. USCIS allocated  about $3.5 million from its fee accounts for all of its verification programs,  including the Basic Pilot Program, in fiscal year 2005. USCIS officials said  that this allocation included a $500,000 increase for additional employee  verifications by employers using the Basic Pilot Program. However, these  officials told us that current funding levels allocated for USCIS verification  programs would not be sufficient to cover costs associated with  mandatory use of the Basic Pilot Program for all employers, should this be  adopted. In 2004, we reported that USCIS fees were not sufficient to fully  fund the agency’s operations but noted that cost data were insufficient to  determine the full extent of the funding shortfall.
The Temple University Institute for Survey Research and Westat estimated  a range of costs associated with expanding the dial-up version of the pilot  program, including costs for making the program mandatory for a  selected group of employers, like employers with more than 10 employees,  and making the program mandatory for all employers, regardless of the  number of employees. The report estimated that a mandatory dial-up  version of the pilot program for all employers would cost the federal  government, employers, and employees about $11.7 billion total per year,  with employers bearing most of the costs. USCIS has worked with  participating employers to switch them to the Web-based version of the  program and discontinued the dial-up version in June 2005. The Temple  University Institute for Survey Research and Westat did not estimate costs  for a mandatory Web-based version, although they noted that operating  costs associated with such a program would be less than for the dial-up  version because employer computer maintenance and telephone costs  would be lower. As part of the next evaluation of the pilot program, USCIS  plans to assess the costs and potential time frames associated with making  the Web-based version mandatory for all employers or specific segments  of employers. Given the growth in other USCIS verification programs,  USCIS cannot effectively assess potential costs for making the Web-based  version of the Basic Pilot Program mandatory without information on  other possible resources needed for the program, such as staff needed for  conducting manual verifications.
section_title: Competing Priorities and Lack of Outcome Goals and Measures May Hinder Worksite Enforcement Efforts
paragraphs: The worksite enforcement program is one of various ICE immigration  enforcement programs, and has been a relatively low priority. Since fiscal  year 1999, the number of notices of intent to fine issued to employers for  violations of IRCA and the number of administrative worksite arrests have  declined, which, according to ICE, are due to various factors, such as the  widespread use of counterfeit documents that make it difficult for ICE  agents to prove employer violations. INS and ICE have also faced  difficulties in setting and collecting meaningful fine amounts and in  detaining unauthorized workers arrested at worksites. In addition, ICE has  not yet developed outcome goals and measures for the worksite  enforcement program, making it difficult for ICE and Congress to assess  program performance and determine resource levels for the program.
subsections: section_title: Worksite Enforcement Has Been a Relatively Low Priority for ICE, but ICE Has Proposed Additional Resources for the Program
paragraphs: Worksite enforcement is one of various immigration enforcement  programs formerly managed by INS and now managed by ICE, and  competes for resources with these other program areas, such as alien  smuggling and fraud. Among INS and ICE responsibilities, worksite  enforcement has been a relatively low priority. For example, in the 1999  INS Interior Enforcement Strategy, the strategy to block and remove  employers’ access to undocumented workers was the fifth of five interior  enforcement priorities. In this same year, we reported that, relative to  other enforcement programs in INS, worksite enforcement received a  small portion of INS’s staffing and enforcement budget. We noted that the  number of employer investigations INS was able to conduct each year  covered only a fraction of the estimated number of employers who may  have hired unauthorized aliens.
In keeping with the primary mission of DHS to combat terrorism, after  September 11, 2001, INS and then ICE focused investigative resources  primarily on national security cases, such as investigations of aliens in the  United States who may have overstayed their authorized time periods for  being in the country and the National Security Entry and Exit Registration  System; on participation in Joint Terrorism Task Forces; and on critical  infrastructure protection. In particular, INS and then ICE focused available  resources for worksite enforcement mainly on identifying and removing  unauthorized workers from critical infrastructure sites, such as airports  and nuclear power plants, to help reduce vulnerabilities at those sites. In  2004, we reported that, if critical infrastructure-related businesses were to  be compromised by terrorists, this would pose a serious threat to domestic  security. In 2003, we testified that, given ICE’s limited resources, it needs  to ensure that it targets those industries where employment of illegal  aliens poses the greatest potential risk to national security. According to  ICE officials, the agency adopted this focus on critical infrastructure  protection because the fact that unauthorized workers can obtain  employment at critical infrastructure sites indicates that there are  vulnerabilities in those sites’ hiring and screening practices, and  unauthorized workers employed at those sites are vulnerable to  exploitation by terrorists, smugglers, traffickers, or other criminals.
Consistent with these priorities, in 2003 ICE headquarters issued a memo  requiring field offices to request approval from ICE headquarters prior to  opening any worksite enforcement investigation not related to the  protection of critical infrastructure sites, such as investigations of farms  and restaurants. ICE officials told us that the purpose of this memo was to  help ensure that field offices focused worksite enforcement efforts on  critical infrastructure protection operations. Field office representatives  told us that noncritical infrastructure worksite enforcement was one of the  few investigative areas for which offices had to request approval from ICE  headquarters to open an investigation. According to ICE, the agency  recently issued a memo delegating authority to approve noncritical  infrastructure worksite enforcement cases to field offices’ Special Agents  in Charge. Eight of the 12 offices we interviewed told us that worksite  enforcement was not an office priority unless the worksite enforcement  case related to critical infrastructure protection. ICE has inspected Forms  I-9 and employer records at hundreds of critical infrastructure sites as of  March 2005. For example, as part of Operation Tarmac, ICE conducted  investigations at nearly 200 airports nationwide and, as part of Operation  Glow Worm, conducted investigations at more than 50 nuclear power  plants as of March 2005. Between October 2004 and the beginning of May  2005, about 77 percent of the worksite enforcement cases opened by ICE  were related to critical infrastructure protection.
Since fiscal year 1999, INS and ICE have dedicated a relatively small  portion of overall agent resources to the worksite enforcement program.  As shown in figure 3, in fiscal year 1999, INS allocated about 240 full-time  equivalents to worksite enforcement efforts, while in fiscal year 2003, ICE  allocated about 90 full-time equivalents. Between fiscal years 1999 and  2003, the percentage of agent work-years spent on worksite enforcement  efforts generally decreased from about 9 percent to about 4 percent.
Although worksite enforcement may remain a low priority relative to other  programs, ICE has proposed increasing agent resources for the worksite  enforcement program by adding staff to its headquarters’ worksite  enforcement unit, which was comprised of three staff members as of July  2005, and hiring additional worksite enforcement staff for field offices. In  particular, ICE plans to use the $5 million provided for fiscal year 2005 by  a congressional conference report for the worksite enforcement program  to fund additional headquarters positions for the worksite enforcement  unit. In its fiscal year 2006 budget submission, ICE requested funding for  117 compliance officers, 20 additional investigative agents, and   6 additional program managers for worksite enforcement. ICE has  proposed hiring these compliance officers to conduct the administrative  elements of worksite enforcement cases, such as the inspection of Forms  I-9 and other employment records. ICE officials said that these officers  would pass cases involving potential criminal violations to investigative  agents for review. ICE officials told us that the agency would use the  compliance officers only for worksite enforcement efforts. According to  ICE, compliance enforcement officers are less costly than investigative  agents. ICE estimates that each investigative agent would cost the agency  approximately $167,000 to $176,000 in fiscal year 2006, while one  compliance enforcement officer would cost about $76,000. At this point, it  is unclear what impact, if any, these additional resources would have on  worksite enforcement efforts.
section_title: ICE Attributes Decline in Numbers of Employer Fine Notices and Worksite Arrests to Document Fraud and Resource Allocation Decisions
paragraphs: The number of notices of intent to fine issued to employers as well as the  number of unauthorized workers arrested at worksites have generally  declined. Between fiscal years 1999 and 2004, the number of notices of  intent to fine issued to employers for improperly completing Forms I-9 or  knowingly hiring unauthorized workers generally decreased from   417 to 3. (See figure 4.)
The number of unauthorized workers arrested during worksite  enforcement operations has also declined since fiscal year 1999. As shown  in figure 5, the number of administrative worksite arrests declined by  about 84 percent from 2,849 in fiscal year 1999 to 445 in fiscal year 2003.
According to ICE records, worksite enforcement criminal arrests totaled  159 in fiscal year 2004 and 81 in the period from October 2004 through  April 2005.
ICE attributes the decline in the number of notices of intent to fine issued  to employers and number of administrative worksite arrests to various  factors including the widespread availability and use of counterfeit  documents and the allocation of resources to other priorities. Various  studies have shown that the availability and use of fraudulent documents  have made it difficult for ICE agents to prove that employers knowingly  hire unauthorized workers. For example, in previous work we reported  that the prevalence of document fraud made it difficult for INS to prove  that an employer knowingly hired an unauthorized alien. In 1996, the  Department of Justice Office of the Inspector General reported that the  proliferation of cheap fraudulent documents made it possible for the  unscrupulous employer to avoid being held accountable for hiring illegal  aliens. ICE officials told us that employers who agents suspect of  knowingly hiring unauthorized workers can claim that they were unaware  that their workers presented false documents at the time of hire, making it  difficult for agents to prove that the employer willfully violated IRCA. In  commenting on a draft of this report, ICE also noted that the IIRIRA  provision that limited employer liability for certain Form I-9 paperwork  violations affects ICE’s ability to substantiate employer charges for  knowingly hiring unauthorized workers and, therefore, the number of  notices of intent to fine that ICE issues. This provision came into effect in  1996, so it is unclear what effect, if any, the provision had on the decline in  the number of notices of intent to fine issued between fiscal years 1999  and 2004.
In addition, according to ICE, the allocation of INS and ICE resources to  other priorities has contributed to the decline in the numbers of notices of  intent to fine and worksite arrests. For example, INS focused its worksite  enforcement resources on egregious employer violators who were linked  to other criminal violations like smuggling, fraud, or worker exploitation,  and de-emphasized administrative employer cases and fines. Furthermore,  INS investigative resources were redirected from worksite enforcement  activities to criminal alien cases, which consumed more investigative  hours by the late 1990s than any other enforcement activity. After  September 11, 2001, INS and ICE focused investigative resources on  national security cases and, in particular, focused worksite enforcement  efforts on critical infrastructure protection, which is consistent with DHS’s  primary mission to combat terrorism. According to ICE, the redirection of  resources from other enforcement programs to perform national security- related investigations resulted in fewer resources for traditional program  areas like fraud and noncritical infrastructure worksite enforcement.  Additionally, some ICE field representatives, as well as immigration  experts we interviewed, noted that the focus on critical infrastructure  protection does not address the majority of worksites in industries that  have traditionally provided the magnet of jobs attracting illegal aliens to  the United States.
section_title: INS and ICE Have Faced Difficulties in Setting Fine Amounts and in Detaining Unauthorized Workers, but Have Taken Steps to Address Difficulties
paragraphs: INS and ICE have faced difficulties in setting and collecting final fine  amounts that meaningfully deter employers from knowingly hiring  unauthorized workers and in detaining unauthorized workers arrested at  worksites. ICE officials told us that because fine amounts are so low, the  fines do not provide a meaningful deterrent. These officials also said that  when agents could prove that an employer knowingly hired an  unauthorized worker and issued a notice of intent to fine, the fine amounts  agents recommended were often negotiated down in value during  discussions between agency attorneys and employers. The amount of  mitigated fines may be, in the opinion of some ICE officials, so low that  they believe that employers view the fines as a cost of doing business,  making the fines an ineffective deterrent for employers who attempt to  circumvent IRCA. ICE officials at 11 of the 12 field offices at which we  interviewed staff said that they experienced instances in which fine  amounts were mitigated down in value. According to ICE, the agency  mitigates employer fine amounts because doing so may be a more efficient  use of government resources than pursuing employers who contest or  ignore fines, which could be more costly to the government than the fine  amount sought. Recently, ICE settled a worksite enforcement case with a  large company without going through the administrative fine process. As  part of the settlement, the company agreed to pay $11 million and  company contractors agreed to pay $4 million in forfeitures—more than  any administrative fine amount ever issued against an employer for IRCA  violations, according to ICE.
One ICE official said that use of such civil settlements instead of pursuit of  administrative fines, specifically in regard to investigations of noncritical  infrastructure employers, could be a more efficient use of investigative  resources. ICE officials also said that use of civil settlements could help  ensure employers’ future compliance by including in the settlements a  requirement to enter into compliance agreements, such as the Basic Pilot  Program. ICE recently employed this strategy in its $15 million settlement  with the large company. As part of the settlement, the company agreed to  enter into a compliance program with ICE. Other compliance agreements  with employers could involve mandatory participation in the Basic Pilot  Program. Additionally, ICE officials said that the agency has proposed  working with employers who are not the subjects of worksite enforcement  investigations to help them ensure compliance with IRCA through  enhanced education and partnerships. In April 2005, ICE issued its interim  strategic plan, which, as part of its objective on identifying critical  industries for worksite enforcement operations, included an approach for  partnering with businesses to help them comply with IRCA. This  partnership program, called the ICE Mutual Agreement between  Government and Employers, is intended to provide employers with  training and best practices for complying with IRCA. In addition to  implementing this partnership program, ICE plans to promote expanded  use of the Basic Pilot Program to help encourage employers in critical  industries to strengthen their ability to verify employees’ work eligibility.  The practice of civil settlements with employers and joint compliance  programs are in the early stages of implementation; therefore the extent to  which they may address the difficulties faced in setting fine amounts that  provide a meaningful deterrent is not yet known.
The former INS also faced difficulties in collecting total fine amounts from  employers, but collection efforts have improved. We previously reported  that the former INS faced difficulties in collecting total fine amounts from  employers for a number of reasons including that employers went out of  business, moved, or declared bankruptcy. In 1996, the Department of  Justice Office of the Inspector General reported that the deterrent effect of  civil fines on sweatshop operators was adversely affected by collection  difficulties and noted that INS had no national system for billing, tracking,  and collecting employer fines. In 1998, INS created the Debt Management  Center to centralize the collections process, and the center is now  responsible for collecting fines ICE issued against employers for violations  of IRCA and providing other collection services for ICE and USCIS. The  ICE Debt Management Center has collected total amounts on most of the  invoices issued to employers for final fine amounts between fiscal years  1999 and 2004—about 94 percent as of the end of June 2005.
In addition, ICE’s Office of Detention and Removal has limited detention  space, and unauthorized workers detained during worksite enforcement  investigations are a low priority for that space. In 2004, the Under  Secretary for Border and Transportation Security sent a memo to the  Commissioner of U.S. Customs and Border Protection and the Assistant  Secretary for ICE outlining the priorities for the detention of aliens.  According to this memo, aliens who are subjects of national security  investigations were among those groups of aliens given the highest priority  for detention, while aliens arrested as a result of worksite enforcement  investigations were among those groups of aliens given the lowest priority.  Officials in 8 of the 12 field offices we interviewed told us that lack of  sufficient detention space has limited the effectiveness of worksite  enforcement efforts. For example, ICE officials stated that if investigative  agents arrest unauthorized aliens at worksites, the aliens would likely be  released because the Office of Detention and Removal detention centers  do not have sufficient space to house the aliens. Field office  representatives said that offices can expend a large amount of resources  to arrest unauthorized aliens at worksites and that these aliens would  likely be released and may re-enter the workforce, in some cases returning  to the worksites from where they were originally arrested. As a result, the  use of resources to arrest unauthorized aliens at worksites may be  unproductive. A congressional conference report for fiscal year 2005  provided funds to the Office of Detention and Removal for an additional  1,950 bed spaces. Given competing priorities for detention space, the  effect, if any, these additional bed spaces will have on ICE’s priority given  to workers detained as a result of worksite enforcement operations cannot  currently be determined.
section_title: ICE Has Not Yet Developed Outcome Goals and Measures for Worksite Enforcement
paragraphs: Given ICE’s limited resources and competing priorities for those  resources, ICE’s lack of performance goals and measures for the worksite  enforcement program may hinder the agency’s ability to effectively  determine and allocate resources for the program. Performance goals and  measures are intended to provide Congress and agency management with  the information to systematically assess a program’s strengths,  weaknesses, and performance. A performance goal is the target level of  performance—either output or outcome—expressed as a tangible,  measurable objective against which actual achievement will be compared.  A performance measure can be defined as an indicator, statistic, or metric  used to gauge program performance and may typically include outputs and  outcomes. Outputs provide status information about an initiative or  program in terms of completing an action in a specified time frame.  Outcomes show results or outcomes related to an initiative or program in  terms of its effectiveness, efficiency, or impact. Outputs should support or  lead to outcomes and, for each outcome goal, there are typically several  output goals. Outputs and outcomes together help agencies determine and  report on products or services provided through a program and the results  of those products or services.
ICE lacks output goals and measures necessary to inform its resource  allocation decisions. Output goals and measures are an essential  management tool in managing programs for results. They help provide the  information that agencies need to aid in determining resources for a  program and whether they are using program resources efficiently and  effectively. ICE officials told us that the agency does not plan to focus on  developing and using output goals and measures for worksite  enforcement, such as the number of cases initiated or number of worksite  arrests made, because they believe that such goals and measures do not  adequately indicate ICE’s level of effort for worksite enforcement.  Therefore, the ICE officials said that ICE plans to focus on developing  outcome goals and measures for the program that better reflect the  program’s effect. Yet in its fiscal year 2006 budget request, ICE identified  two output measures for its worksite enforcement program: a 20 percent  increase in the number of administrative worksite case completions and  criminal employer case presentations made to the U.S. Attorney’s Office in  fiscal year 2007 and a 30 percent increase in these two indicators in fiscal  year 2008. Although these two measures would provide a general  indication of ICE’s level of worksite enforcement activity, these measures  alone would not allow ICE or Congress to effectively determine resources  needed for the worksite enforcement program because these indicators  address only two elements of the worksite enforcement program and do  not address other program elements, such as critical infrastructure  protection. Furthermore, in July 2005 the Secretary of Homeland Security  discussed the need for DHS, of which ICE is a part, to be an effective  steward of its resources. Without additional output goals and measures for  worksite enforcement, ICE’s ability to effectively determine and allocate  worksite enforcement resources needed to meet program goals, especially  given other agency priorities for resources, and to fully assess whether the  agency is using those resources effectively and efficiently in implementing  the program may be hindered.
In addition, ICE lacks outcome goals and measures that may hinder its  ability to effectively assess the results of its worksite enforcement  program efforts, including critical infrastructure protection efforts.  Outcome measures provide agencies with an assessment of the results of a  program activity or policy compared to its intended purposes. ICE officials  told us that the agency plans to develop outcome goals and measures for  its worksite enforcement program, but it has not yet developed these goals  and measures. As a first step, ICE officials told us that field offices  conducted baseline threat-level assessments in August and September  2004 to help identify regional risks, such as risks to critical infrastructure  sites. These officials stated that an action plan will be developed to  address these risks. Field office agents will then measure how well a  particular threat has been addressed by measuring the impact of ICE’s  investigative activities on deterring threats or decreasing vulnerabilities to  national security. ICE has not yet established target time frames for  developing worksite enforcement program outcome goals and measures  and, without these goals and measures, ICE may not be able to effectively  assess the results of program efforts. For example, until ICE fully develops  outcome goals and measures, it may not be able to completely determine  the extent to which its critical infrastructure protection efforts have  resulted in the elimination of unauthorized workers’ access to secure areas  of critical infrastructure sites, one possible goal that ICE may use for its  worksite enforcement program.
section_title: Conclusions
paragraphs: Efforts to reduce the employment of unauthorized workers in the United  States necessitate a strong employment eligibility verification process and  a credible worksite enforcement program to help ensure that employers  are meeting verification requirements. The current Form I-9 employment  verification process has not fundamentally changed since its establishment  in 1986, and ongoing weaknesses in the process have undermined its  effectiveness. Although DHS and the former INS have been assessing  changes in the process since 1997, DHS has not yet issued final regulations  on these changes, and it has not established a definitive time frame for  completing the assessment. Completion of this assessment and issuance of  final regulations should strengthen the current employment verification  process and make it simpler and more secure. Furthermore, the Basic  Pilot Program, or a similar automated verification system, if implemented  on a much larger scale, shows promise for enhancing the employment  verification process and reducing document fraud. However, current  weaknesses in pilot program implementation would have to be fully  addressed to help ensure the efficient and effective operation of an  expanded or mandatory pilot program, or a similar automated  employment verification program, and the cost of additional resources  would be a consideration. Although USCIS plans to review current pilot  program weaknesses, additional information on the costs and feasibility of  addressing these weaknesses is needed to assist USCIS and Congress in  assessing possible future use of the Basic Pilot Program, including  increased program usage.
Even with a strengthened employment verification process, a credible  worksite enforcement program is needed because no verification process  is foolproof and not all employers may want to comply with the law. ICE’s  focus on critical infrastructure protection since September 11, 2001 is  consistent with the DHS mission to combat terrorism by detecting and  mitigating vulnerabilities to terrorist attacks at critical infrastructure sites  which, if exploited, could pose serious threats to domestic security. This  focus on critical infrastructure protection, though, generally does not  address noncritical infrastructure employers’ noncompliance with IRCA.  As a result, employers, particularly those not located at or near critical  infrastructure sites, who attempt to circumvent IRCA face less of a  likelihood that ICE will investigate them for failing to comply with the  current employment verification process or knowingly hiring unauthorized  workers. ICE is taking some steps to address difficulties it has faced in its  worksite enforcement efforts, but it is too early to tell whether these steps  will improve the effectiveness of the worksite enforcement program. In  addition, given ICE’s limited resources and competing priorities for those  resources, additional output goals and measures are needed to help ICE  track the progress of its worksite enforcement efforts, effectively  determine the resources needed to meet worksite enforcement program  goals, and ensure that program resources are used efficiently and  effectively. Moreover, a target time frame for developing outcome goals  and measures is needed to assist Congress and ICE in determining  whether the worksite enforcement program, including critical  infrastructure protection, is achieving its desired outcomes.
section_title: Recommendations for Executive Action
paragraphs: To strengthen the current employment verification process, we  recommend that the Secretary of Homeland Security take the following  action:    set a specific time frame for completing the department’s review of the  Form I-9 process, including an assessment of the possibility of reducing  the number of acceptable work eligibility documents, and issuing final  regulations on changes to the Form I-9 process and an updated Form I-9.
To assist Congress and USCIS in assessing the possibility of increased or  mandatory use of the Basic Pilot Program, we recommend that the  Secretary of Homeland Security direct the Director of USCIS to take the  following action:  include, in the planned evaluation of the Basic Pilot Program, an  assessment of the feasibility and costs of addressing the Basic Pilot  Program’s current weaknesses, including its inability to detect identity  fraud in the verification and reverification processes, delays in entry of  new arrival and employment authorization information into DHS  databases, and employer noncompliance with program procedures, and  resources needed to support any increased or mandatory use of the  program.
To assist Congress and ICE in determining the resources needed for the  worksite enforcement program and to help ensure the efficient and  effective use of program resources, we recommend that the Secretary of  Homeland Security direct the Assistant Secretary for ICE to take the  following two actions:    establish additional output goals and measures for the worksite  enforcement program to clearly indicate the target level of ICE worksite  enforcement activity and the resources needed to implement the program,  and   set a specific time frame for completing the assessment and development  of outcome goals and measures for the worksite enforcement program to  provide a target level of performance for worksite enforcement efforts and  measures to assess the extent to which program results have met program  goals.
section_title: Agency Comments
paragraphs: We requested comments on this report from the Secretary of Homeland  Security. In its response, DHS agreed with our recommendations. DHS’s  comments are reprinted in Appendix V. DHS also provided technical  comments, which we considered and incorporated where appropriate. We  also received technical comments from SSA, which we considered and  incorporated where appropriate.
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section_title: Appendix I: Employment Eligibility Verification Form (Form I-9)
paragraphs: Appendix I: Employment Eligibility  Verification Form (Form I-9)
section_title: Appendix II: Scope and Methodology
paragraphs: To determine how the employment eligibility verification (Form I-9)  process functions, we examined laws related to the employment  verification process, including the Immigration Reform and Control Act of  1986 and the Illegal Immigration Reform and Immigrant Responsibility Act  of 1996; federal regulations on the Form I-9 process; and former U.S.  Immigration and Naturalization Service (INS) guidance on the Form I-9,  such as the Handbook for Employers, which provides instructions for  completing the form. We evaluated this information to identify the Form   I-9 requirements, including employer and employee responsibilities for  completing the form, and challenges to meeting those requirements. We  examined our past reports and other studies, such as the 1997 U.S.  Commission on Immigration Reform Report to Congress, to obtain further  information on the employment verification process. We analyzed former  INS plans for addressing Form I-9 challenges, including its plans to modify  the list of acceptable work eligibility documents. We also examined U.S.  Immigration and Customs Enforcement’s (ICE) interim guidelines on the  electronic Forms I-9 to determine what guidance, if any, they provide to  employers using the electronic form.
To determine challenges to the Form I-9 process and obtain information  on the Basic Pilot Program, we also interviewed and obtained information  from U.S. Citizenship and Immigration Services (USCIS), ICE, and Social  Security Administration (SSA) officials. In addition, we interviewed  representatives of 23 employers; 12 employer, employee, and advocacy  groups; and 6 immigration experts to obtain their views on employment  verification and worksite enforcement. We selected the employers to  interview based on a mix of the following criteria: the total number of  Basic Pilot Program queries; the total number or percentage of pilot  program queries that resulted in authorized employment, tentative  nonconfirmations, and final nonconfirmations; geographic proximity to  the ICE field offices we visited; previous records of being sanctioned for  Form I-9 violations; and industry categorization. The 23 employers we  interviewed were located in the following states: California, Illinois,  Michigan, New Jersey, New York, and Texas. The   23 employers were also part of the following industries: meat processing,  transportation, health care, landscaping, manufacturing, accommodation,  food services, agriculture, janitorial and maintenance, temporary  employment, critical infrastructure, local government, and newspaper.
One of the employers we interviewed did not participate in the Basic Pilot  Program. As a result, when we discuss employers’ views on the Basic Pilot  Program, we refer to the views of the 22 employers we interviewed who  participated in the Basic Pilot Program.
We selected the 9 employer and employee associations with which to meet  based on a mix of criteria, including industry categorization, gross output  by industry in 2002, number of paid employees by industry in 2002, and  estimates of the number of illegal immigrants employed by industry. We  interviewed officials from employer and employee associations in the  following industries: construction, agriculture, accommodation, food  services, retail, health care, and meat. We selected the 3 advocacy groups  to interview based on the groups’ interest in issues related to employment  verification and worksite enforcement efforts and interviewed officials  from advocacy groups that represent a range of views on these issues. We  selected the 6 immigration experts to interview based on the experts’  range of views on immigration issues. We analyzed information from these  agencies, employers, groups, and experts to determine their views on the  Form I-9 process and difficulties in verifying work eligibility through the  process. We used information obtained from employers, employer and  employee associations, and advocacy groups only as anecdotal examples,  as information from these entities cannot be generalized to all employers  and groups in the United States.
Furthermore, we evaluated information from USCIS and SSA on the Basic  Pilot Program, including the Basic Pilot Program user’s manual and  memorandum of understanding for employers, to determine how the pilot  program functions and how it might assist participating employers in  reliably verifying employees’ work eligibility and in detecting counterfeit  documents. We analyzed this information to determine ongoing challenges  in implementing the Basic Pilot Program and ways these challenges could  affect increased or mandatory use of the pilot program. We did not  evaluate security measures in place for the Basic Pilot Program or the  program’s vulnerability to security risks. To identify pilot program  challenges, we examined the findings and methodology of the evaluation  of the Basic Pilot Program completed by the Institute for Survey Research  at Temple University and Westat in June 2002. In addition, we analyzed  data on employer participation in and use of the Basic Pilot Program,  including data on Basic Pilot Program employment authorizations, to  determine how participation and use have changed since fiscal year 2000.  We assessed the reliability of these data by reviewing them for accuracy  and completeness, interviewing agency officials knowledgeable about the  data, and examining documentation on how the data are entered,  categorized, and verified in the databases. We determined that the  independent evaluation and these data were sufficiently reliable for the  purposes of our review.
To obtain information on the implementation of the worksite enforcement  program, we interviewed officials from ICE, the SSA Office of the  Inspector General, the Department of Labor, the Federal Bureau of  Investigation, and the Office of Special Counsel for Immigration-Related  Unfair Unemployment Practices. We also interviewed officials from 12 of  the 26 ICE Special Agent in Charge field offices. We met with officials from  the following 8 field offices: Los Angeles and San Diego, California;  Chicago, Illinois; Detroit, Michigan; Newark, New Jersey; New York City,  New York; and Houston and San Antonio, Texas. We spoke with officials  from the following 4 field offices over the telephone: Denver, Colorado;  Miami, Florida; Buffalo, New York; and Seattle, Washington. We selected  the 12 field offices based on a mix of the following criteria: the number of  investigators in each field office in fiscal year 2003, the number of  investigations conducted by each field office in fiscal year 2003, the  estimated number of undocumented immigrants in the state in which each  field office was located, the number of sanctions issued to employers as a  result of closed cases located in the same city as the field office between  calendar years 1986 and 2000, the number of critical infrastructure  operations in which the field office participated from October 2001  through April 2004, the number of employers located in the same city as  the field office that participated in the Basic Pilot Program, and  geographic area. We also interviewed officials from 4 U.S. Attorney’s  Offices that were located in the same areas as 4 of the field offices we  visited. We met with officials from the following 3 U.S. Attorney’s Offices:  the Southern District of New York U.S. Attorney’s Office; the Southern  District of Texas U.S. Attorney’s Office; and the Western District of Texas  U.S. Attorney’s Office. We spoke with the Southern District of California  U.S. Attorney’s Office over the telephone. We used information obtained  from the field offices only as anecdotal examples, as information from  these entities cannot be generalized to all field offices in the United States.
We analyzed ICE headquarters and field office guidance, memos, and  other documents on worksite enforcement to evaluate ICE’s priorities for  and management of worksite enforcement efforts and to identify any  challenges in program implementation. We analyzed ICE’s April 2005  Interim Strategic Plan to determine ICE’s strategy for its worksite  enforcement program. We also examined former INS guidance and  strategies and other studies, such as reports from the Department of  Justice Office of the Inspector General, to determine how worksite  enforcement priorities, implementation, and challenges have evolved.
In addition, we separately analyzed ICE and INS data on the worksite  enforcement program and assessed their validity and reliability by  reviewing them for accuracy and completeness, interviewing agency  officials knowledgeable about the data, and examining documentation on  how the data are entered, categorized, and verified in the databases. We  determined that the data from each agency were sufficiently reliable for  the purposes of our review. However, we could not compare the INS and  ICE data because, following the creation of ICE in March 2003, the case  management system used to enter and maintain information on  immigration investigations changed. With the establishment of ICE, agents  began using the legacy U.S. Customs Service’s case management system,  called the Treasury Enforcement Communications System, for entering  and maintaining information on investigations, including worksite  enforcement operations. Prior to the creation of ICE, the former INS  entered and maintained information on investigative activities in the  Performance Analysis System, which captured information on immigration  investigations differently than the Treasury Enforcement Communications  System.
Additionally, ICE officials indicated that, in a few cases, the INS and ICE  data did not completely account for all worksite enforcement operations  results. ICE officials told us that agents use judgment in categorizing cases  entered into both systems and there are a limited number of instances in  which agents did not appropriately categorize cases. For example, ICE  officials told us that, in reviewing worksite enforcement cases in the ICE  system for fiscal year 2004, they found a few cases that agents  inappropriately categorized as worksite enforcement.
To determine the investigative agent work-years, or full-time equivalents,  that INS spent on the worksite enforcement program for each fiscal year  from 1999 through 2003, we divided the total hours INS reported spending  on employer investigations by the total hours spent on all investigations,  including agent hours spent on leave, training, and other administrative  and noninvestigative work. We then multiplied this result by 2,080 hours,  which constitute one work-year, to determine the number of work-years  spent on worksite enforcement.
We conducted our work from September 2004 through July 2005 in  accordance with generally accepted government auditing standards.
section_title: Appendix III: Information on the Electronic Form I-9
paragraphs: In October 2004, Congress authorized the electronic Form I-9 to be  implemented by the end of April 2005. ICE has provided interim  guidelines for using electronic Forms I-9, until the agency issues final  regulations on their use. The interim guidelines specify that employers will  have options for completing, signing, storing, and presenting for  inspection electronic Forms I-9. For example, the guidelines note that  employers may choose to complete Forms I-9 on paper and store the  forms electronically or they may choose to both electronically complete  and store Forms I-9. The guidelines also state that electronic signatures  could be generated through various technologies such as electronic  signature pads, personal identification numbers, biometrics, and dialog  boxes. The guidelines also state that employers could use electronic  storage systems to retain Forms I-9 that include quality assurance steps to  prevent and detect the unauthorized creation, addition, alteration,  deletion, or deterioration of electronically stored data. In addition,  employers may consider an electronic storage system that includes an  indexing system and ability to reproduce legible and readable hard copies  of electronically stored forms.
section_title: Appendix IV: Data on Employer Participation in and Use of the Basic Pilot Program
paragraphs: Employer participation in and use of the Basic Pilot Program has generally  increased. Between fiscal years 2002 and 2004, the number of employers  actively using the Basic Pilot Program increased from 1,205 to 2,305. In  addition, as shown in figure 6, the number of total queries processed  through the Basic Pilot Program has generally increased since fiscal year  2000.
As shown in figure 7, the majority of Basic Pilot Program queries that  resulted in employment authorizations for each fiscal year from 2000  through 2004 were issued by SSA.
section_title: Appendix V: Comments from the Department of Homeland Security
section_title: Appendix VI: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Orlando Copeland, Michele Fejfar,  Ann H. Finley, Rebecca Gambler, Kathryn Godfrey,   Charles Michael Johnson, Eden C. Savino, and Robert E. White made key  contributions to this report.