Extended Pilot Programs
Posted Dec 19, 2003

Last week, the MurthyBulletin reported that President Bush signed the Basic Pilot Extension and Expansion Act of 2003 into law. As explained in that December 12, 2003 article entitled, Extension of Employment Verification and EB5 Programs, available on MurthyDotCom, the new law extends certain employment verification programs. These programs were introduced following significant immigration reform, known as the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). The programs are now extended through 2008.

The I-9 is the basic employment eligibility verification form used by employers. The pilot programs provide for different means of verification. Most employers participate in the pilot programs on a voluntary basis, although some employers are required to participate due to past violations. Participating employers must use the pilot program procedures for all employment verification, rather than using it selectively or only for certain employees. The goal of the programs is to meet the requirements in IIRIRA to test methods of nondiscriminatory employment eligibility verification, with a focus on electronic verification. Non-participating employers must comply with the standard I-9 employment verification requirements, as set out in the instructions to the I-9 form.

Basic Pilot Program

Whether under the Basic Pilot Program or not, an employer must verify employment authorization for all new employees, regardless of citizenship. The pilot program involves changes to the I-9 employment verification procedures. The I-9 contains lists of documents acceptable to prove employment eligibility, divided into "List A," "List B," and "List C." A Form I-9 and its accompanying lists are available from the USCIS Website, through MurthyDotCom. Participating employers must follow the standard procedures for I-9 verification, except that the identity verification documents contained in List B of the I-9 must include a photograph of the individual. List A documents, which reflect both identity and employment eligibility, are not changed under the pilot program.

The Basic Pilot Program involves verification checks through the Social Security Administration (SSA) databases, and, if needed, the Department of Homeland Security (DHS) databases. The Social Security Number and Alien Registration Number are used for these checks. The employer must complete the I-9 form for all newly hired employees, within 3 days of hiring. The employer uses the SSA database first, which will instruct the employer as to whether it needs to also use the DHS database. Once the employee has been confirmed within the database, that confirmation should be included on the I-9 form. Until that point, all transaction codes directed by the SSA or the DHS should be included on the I-9 form.

If the procedures do not provide verification of employment eligibility, the inquiry will result in further instructions to the employer. In some cases, the employer will be directed to contact the DHS to follow alternative verification procedures. In other cases, the employer will receive notification of a "tentative nonconfirmation" of employment eligibility. In that case, the employer asks the employee whether s/he wishes to contest the tentative nonconfirmation. If contested, the employee must contact the SSA or DHS within 8 government working days of notification. The SSA or DHS will make a final decision as to the individual's eligibility for employment within 10 government working days.

Tentative nonconfirmation does not mean that a person is not authorized to work, and employers cannot treat it as proof that the individual is not employment authorized. Employers cannot terminate an employee based upon nonconfirmation, until the individual has had time to follow the procedures for correcting any misinformation. The employee must follow the procedures for contesting the nonconfirmation, if s/he desires to continue the employment.

If the employee does not contest a tentative nonconfirmation or the tentative nonconfirmation is not successfully contested, it becomes a final nonconfirmation. The employer may not take adverse action against the employee until there is a final nonconfirmation. At that point, the employer may terminate the employee without civil or criminal liability. If the employer does not terminate the employee after a final nonconfirmation, the employer must notify the DHS. If the employer fails to do so, it will be subject to a civil penalty between $500 and $1000. Keeping a person on payroll that has had a final nonconfirmation creates a rebuttable presumption that the employer is employing an unauthorized individual.

Citizenship Attestation Program

The Citizenship Attestation Program provides that persons attesting to be U.S. citizens have different verification requirements for the I-9 form than do non-citizens. The program is largely the same procedurally as the Basic Pilot Program. The states where the program operates must have photographs on their driver's licenses and identification cards, and security measures to ensure there is a low risk of counterfeiting, tampering, and fraudulent use. As with the Basic Pilot Program, all I-9 List A documents are deemed sufficient for identification. Additionally, Form I-9 List B documents, with photographs, are also acceptable. Those who do not attest to being U.S. citizens or nationals follow the same rules as all other employees with respect to I-9 requirements. The major difference under this program is that those who attest to being U.S. citizens or nationals are allowed to present a U.S. passport, even if expired. The passport is a List A document. Alternatively, the attesting employee may present a document with a photograph from List B. However, unlike non-U.S. citizens, such individuals will not be required to also provide the document from List C.

Approximately 1000 employers participating in the Citizenship Attestation Pilot will randomly be given permission to not require any documentation if a person attests to being a U.S. citizen or national. For foreign national employees, the employer will need to follow the verification procedures under the Basic Pilot Program.

Machine-Readable Document Pilot

This program is identical to the Basic Pilot Program except that, if the employee provides a driver's license or identification card that has a machine-readable social security number, the employer will use the machine-readable card to make its inquiry with the SSA.

Conclusion

Though the pilot programs should become available in all states, we expect that employers may generally still be able to volunteer rather than be compelled to participate. We advise our MurthyDotCom and MurthyBulletin readers who are decision-makers for their companies to carefully consider whether participation in any of the programs is desirable unless or until they become mandatory.