Immigration Enforcement: Weaknesses Hinder Employment		 
Verification and Worksite Enforcement Efforts (19-JUN-06,	 
GAO-06-895T).							 
                                                                 
The opportunity for employment is one of the most important	 
magnets attracting illegal immigrants to the United States. The  
Immigration Reform and Control Act (IRCA) of 1986 established an 
employment eligibility verification process and a sanctions	 
program for fining employers for noncompliance. Few modifications
have been made to the verification process and sanctions program 
since 1986, and immigration experts state that a more reliable	 
verification process and a strengthened worksite enforcement	 
capacity are needed to help deter illegal immigration. This	 
testimony is based on GAO's August 2005 report on the employment 
verification process and worksite enforcement efforts. In this	 
testimony, GAO provides observations on (1) the current 	 
employment verification process and (2) U.S. Immigration and	 
Customs Enforcement's (ICE) priorities and resources for the	 
worksite enforcement program and the challenges it faces in	 
implementing that program.					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-895T					        
    ACCNO:   A55641						        
  TITLE:     Immigration Enforcement: Weaknesses Hinder Employment    
Verification and Worksite Enforcement Efforts			 
     DATE:   06/19/2006 
  SUBJECT:   Eligibility criteria				 
	     Eligibility determinations 			 
	     Employment 					 
	     Employment requirements				 
	     Homeland security					 
	     Illegal aliens					 
	     Immigrants 					 
	     Internal controls					 
	     Basic Pilot Program				 

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GAO-06-895T

                 United States Government Accountability Office

Testimony

GAO

Before the Subcommittee on Immigration, Border Security, and Citizenship,
                    Committee on the Judiciary, U.S. Senate

For Release on Delivery Expected   IMMIGRATION ENFORCEMENT                 
at 2:00 p.m. EDT Monday, June 19,  
2006                               
                                      Weaknesses Hinder                       
                                      Employment Verification and Worksite    
                                      Enforcement                             
                                      Efforts                                 
                                      Statement of Richard M. Stana, Director 
                                      Homeland Security and Justice           

GAO-06-895T

IMMIGRATION ENFORCEMENT

Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts

  What GAO Found

The current employment verification (Form I-9) 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 documents presented by their employees and that the
documents appear genuine and relate to the individual presenting the
documents. However, document fraud (use of counterfeit documents) and
identity fraud (fraudulent use of valid documents or information belonging
to others) have undermined the employment verification process by making
it difficult for employers who want to comply with the process to ensure
they hire only authorized workers and easier for unscrupulous employers to
knowingly hire unauthorized workers with little fear of sanction. In
addition, the large number and variety of documents acceptable for proving
work eligibility has hindered employer verification efforts. In 1998, the
former Immigration and Naturalization Service (INS), now part of DHS,
proposed revising the Form I-9 process, particularly to reduce the number
of acceptable work eligibility documents, but DHS has not yet finalized
the proposal. The Basic Pilot Program, a voluntary program through which
participating employers electronically verify employees' work eligibility,
shows promise to enhance the current employment verification process, help
reduce document fraud, and assist ICE in better targeting its worksite
enforcement efforts. Yet, several weaknesses in the pilot program's
implementation, such as its inability to detect identity fraud and DHS
delays in entering data into its databases, could adversely affect
increased use of the pilot program, if not addressed.

The worksite enforcement program has been a relatively low priority under
both INS and ICE. Consistent with the DHS mission to combat terrorism,
after September 11, 2001, INS and then ICE focused worksite enforcement
efforts mainly on detecting and removing unauthorized workers from
critical infrastructure sites. Since fiscal year 1999, the numbers of
employer notices of intent to fine and administrative worksite arrests
have generally declined. According to ICE, this decline is due to various
factors, such as the prevalence of document fraud that makes it difficult
to prove employer violations. ICE officials told us that the agency has
previously experienced difficulties in proving employer violations and
setting and collecting fine amounts that meaningfully deter employers from
knowingly hiring unauthorized workers. In April 2006, ICE announced a new
interior enforcement strategy to target employers who knowingly hire
unauthorized workers by bringing criminal charges against them, and ICE
has reported increases in the number of criminal arrests and indictments
since fiscal year 2004. However, it is too early to tell what effect, if
any, this new strategy will have on enhancing worksite enforcement efforts
and identifying unauthorized workers and their employers.

                 United States Government Accountability Office

Mr. Chairman and Members of the Subcommittee:

I appreciate the opportunity to be here today to participate in this
hearing on immigration enforcement at the workplace. As we and others have
reported in the past, the opportunity for employment is one of the most
important magnets attracting unauthorized immigrants to the United States.
To help address this magnet, in 1986 Congress passed the Immigration
Reform and Control Act (IRCA),1 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 all newly hired
employees' work eligibility and (2) a sanctions program for fining
employers who do not comply with the act. Efforts to enforce these
sanctions are referred to as worksite enforcement and are conducted by

U.S. Immigration and CustomsEnforcement (ICE).

As the U.S. Commission on Immigration Reform reported, immigration
contributes to the U.S. national economy by providing workers for certain
labor-intensive industries and contributing to the economic revitalization
of some communities.2 Yet, the commission also noted that immigration,
particularly illegal immigration, can have adverse consequences by helping
to depress wages for low-skilled workers and creating net fiscal costs for
state and local governments. Following the passage of IRCA, the U.S.
Commission on Immigration Reform and various immigration experts have
concluded that deterring illegal immigration requires, among other things,
strategies that focus on disrupting the ability of illegal immigrants 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. In the nearly 20 years since passage of IRCA, the
employment eligibility verification process and worksite enforcement
program have remained largely unchanged. Moreover, in previous work, we
reported that employers of unauthorized aliens faced little likelihood
that the

1

Pub. L. No. 99-603, 8 U.S.C. 1324a et seq.

2

U.S. Commission on Immigration Reform, Becoming an American: Immigration
and Immigrant Policy (Washington, D.C: September 1997).

Page 1 GAO-06-895T

Immigration and Naturalization Service (INS)3 would investigate, fine, or
criminally prosecute them, a circumstance that provides little
disincentive for employers who want to circumvent the law.4 The
legislative proposals currently under consideration would revise the
current employment verification process and the employer sanctions
program.

My testimony today is based on our August 2005 report to Congress on the
employment verification process and ICE's worksite enforcement program.5
Specifically, I will discuss our observations on (1) the current
employment verification process and (2) ICE's priorities and resources for
the worksite enforcement program and the challenges it has faced in
implementing that program.

To address these objectives, we reviewed federal laws and information
obtained from ICE, U.S. Citizenship and Immigration Services (USCIS), and
Social Security Administration (SSA) officials in headquarters and
selected field locations. We examined regulations, guidance, past GAO
reports, and other studies on the employment verification process and the
worksite enforcement program. We also analyzed the results and examined
the methodology of an independent evaluation of the Basic Pilot Program,
an automated system through which employers electronically check
employees' work eligibility information against information in Department
of Homeland Security (DHS) and SSA databases, conducted by the Institute
for Survey Research at Temple University and Westat in June 2004.6
Furthermore, we analyzed data on employer use of the Basic Pilot Program
and on worksite enforcement and assessed the data 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

3

In March 2003, INS was merged into the Department of Homeland Security,
and its immigration functions were divided between U.S. Citizenship and
Immigration Services,

U.S. Immigration and Customs Enforcement, and U.S. Customs and Border
Protection. U.S. Immigration and Customs Enforcement is responsible for
managing and implementing the worksite enforcement program.

4GAO, Illegal Aliens: Significant Obstacles to Reducing Unauthorized Alien
Employment Exist, GAO/GGD-99-33 (Washington, D.C.: Apr. 2, 1999).

5

GAO, Immigration Enforcement: Weaknesses Hinder Employment Verification
and Worksite Enforcement Efforts, GAO-05-813 (Washington, D.C.: Aug. 31,
2005).

6

Institute for Survey Research and Westat, Findings of the Basic Pilot
Program Evaluation (Washington, D.C.: June 2004).

Page 2 GAO-06-895T

                                    Summary

the databases. We determined that the independent evaluation and these
data were sufficiently reliable for the purposes of our review. We
conducted the work reflected in this statement from September 2004 through
July 2005 in accordance with generally accepted government auditing
standards.

The employment verification process is primarily based on employers'
review of work eligibility documents presented by new employees, but
various weaknesses, such as the process' vulnerability to fraud, have
undermined this process. Employers certify that they have reviewed
documents presented by their employees and that the documents appear
genuine and relate to the individual presenting the documents. However,
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 ensure that they hire only authorized
workers and have made it easier for unscrupulous employers to knowingly
hire unauthorized workers with little fear of sanction. In addition, the
large number and variety of documents acceptable for proving work
eligibility have hindered employers' verification efforts. In 1998, the
former INS proposed revising the verification process and reducing the
number of acceptable work eligibility documents; that proposal was never
acted upon. DHS, however, at the direction of Congress, introduced the
Basic Pilot Program, an automated system for employers to electronically
check employees' work eligibility information with information in DHS and
SSA databases, that may enhance this process. This program shows promise
to help reduce document fraud and assist ICE in better targeting its
worksite enforcement efforts. Yet, a number of weaknesses in the pilot
program's implementation, including its inability to detect identity fraud
and DHS delays in entering data into its databases, could adversely affect
increased use of the pilot program, if not addressed. In addition, USCIS
officials told us the current Basic Pilot Program may not be able to
complete timely verifications if the number of employers using the program
significantly increased. About 8,600 employers have registered to use the
Basic Pilot Program, and a smaller number of these employers are active
users.

Under both INS and ICE, worksite enforcement has been a relatively low
priority. Consistent with the DHS mission to combat terrorism, after
September 11, 2001, INS and then ICE focused worksite enforcement
resources mainly on identifying and removing unauthorized workers from
critical infrastructure sites, such as airports and nuclear power plants,
to help address vulnerabilities at those sites. In fiscal year 1999, INS
devoted

Page 3 GAO-06-895T

                                   Background

about 240 full-time equivalents (or about 9 percent of its total
investigative agent work-years) to worksite enforcement, while in fiscal
year 2003 it devoted about 90 full-time equivalents7 (or about 4 percent
of total agent work-years). Furthermore, between fiscal years 1999 and
2003 the number of notices of intent to fine issued to employers for
knowingly hiring unauthorized workers or improperly completing employment
verification forms and the number of administrative worksite arrests
generally declined. ICE has attributed this decline to various factors,
including the widespread use of counterfeit documents that make it
difficult for ICE agents to prove that employers knowingly hired
unauthorized workers. In addition, INS and ICE have faced difficulties in
setting and collecting fine amounts from employers and in detaining
unauthorized workers arrested at worksites. In April 2006 ICE announced a
new interior enforcement strategy as part of the Secure Border Initiative.
Under this strategy, ICE plans to target employers who knowingly employ
unauthorized workers by bringing criminal charges against them. While ICE
has taken some steps to address difficulties it has faced in implementing
worksite enforcement efforts and has announced a new interior enforcement
strategy, it is too early to tell what effect, if any, these steps will
have on identifying the millions of unauthorized workers and the employers
who hired them.

In our August 2005 report, we recommended that DHS establish specific time
frames for completing its review of the Form I-9 process to help
strengthen the current employment verification process. We also
recommended that USCIS include an assessment of the feasibility and costs
of addressing the Basic Pilot Program's weaknesses in its evaluation of
the program. DHS agreed with our recommendations and plans to include
information on addressing the pilot program's weaknesses in the
evaluation.

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.
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

7One full-time equivalent is equal to one work-year or 2,080 non-overtime hours.

                               Page 4 GAO-06-895T

Basic Pilot Program Employment Verification Process

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.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)8
of 1996 required INS and SSA to operate three voluntary pilot programs to
test electronic means for employers to verify an employee's eligibility to
work, one of which was the Basic Pilot Program.9 The Basic Pilot Program
was designed to test whether pilot verification procedures could improve
the existing employment verification process by reducing

(1) false claims of U.S. citizenship and document fraud; (2)
discrimination against employees; (3) violations of civil liberties and
privacy; and (4) the burden on employers to verify employees' work
eligibility.

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-910 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 are referred to DHS immigration status verifiers

8

8 U.S.C. 1324a(b). IIRIRA was enacted within a larger piece of
legislation, the Omnibus Consolidated Appropriations Act, 1997, Pub. L.
No. 104-208.

9

The other two pilot programs mandated by IIRIRA-the Citizen Attestation
Verification Pilot Program and the Machine-Readable Document Pilot
Program-were discontinued in 2003 due to technical difficulties and
unintended consequences identified in evaluations of the programs. See
Institute for Survey Research and Westat, Findings of the Citizen
Attestation Verification Pilot Program Evaluation (Washington, D.C.: April
2003) and Institute for Survey Research and Westat, Findings of the
Machine-Readable Document Pilot Program Evaluation (Washington, D.C.: May
2003).

10

The Form I-9 is completed by employers in verifying the work eligibility
of all newly hired employees.

Page 5 GAO-06-895T

who check employee information against information in other DHS databases.

               Figure 1: Basic Pilot Program Verification Process

Source: GAO analysis based on USCIS information.

In cases when the pilot system cannot confirm an employee's work

Page 6 GAO-06-895T

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 by
contacting SSA or USCIS to resolve any inaccuracies in their records
within 8 days. During this time, employers may not take any adverse
actions against those employees, such as limiting their work assignments
or pay. Employers are required to either immediately terminate the
employment, 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.

  Various Weaknesses Have Undermined the Employment Verification Process, but
  Opportunities Exist to Enhance It

    Current Employment Verification Process Is Based on Employers' Review of
                                   Documents

In 1986, IRCA established the employment verification process based on
employers' review of documents presented by employees to prove 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 or fraudulent. Employers are deemed in compliance with IRCA if
they have followed the Form I-9 process, including when an unauthorized
alien presents fraudulent documents that appear genuine.

Form I-9 Process Is Vulnerable to Document and Identity Fraud

Since passage of IRCA in 1986, document and identity fraud have made it
difficult for employers who want to comply with the employment
verification process to ensure they hire only authorized workers. In its
1997 report to Congress, the Commission on Immigration Reform noted that
the widespread availability of false documents made it easy for

Page 7 GAO-06-895T

The Number and Variety of Acceptable Documents Hinders Employer
Verification Efforts

unauthorized aliens to obtain jobs in the United States. In past work, we
reported that large numbers of unauthorized aliens have used false
documents or fraudulently used valid documents belonging to others to
acquire employment, including at critical infrastructure sites like
airports and nuclear power plants.11 In addition, although studies have
shown that the majority of employers comply with IRCA and try to hire only
authorized workers, some employers knowingly hire unauthorized workers,
often to exploit the workers' low cost labor. For example, the Commission
on Immigration Reform reported that employers who knowingly hired illegal
aliens often avoided sanctions by going through the motions of compliance
while accepting false documents. Likewise, in 1999 we concluded that those
employers who do want to comply with IRCA can intentionally hire
unauthorized workers under the guise of having complied with the
employment verification requirements by claiming that unauthorized workers
presented false documents to obtain employment.12

The large number and variety of documents that are acceptable for proving
work eligibility have complicated employer verification efforts under
IRCA. Following the passage of IRCA in 1986, employees could present 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 27.13 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 regulations 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. For example, we
previously reported that the multiplicity of work eligibility documents
contributed to (1) employer uncertainty about how to comply with the

11

GAO/GGD-99-33, and GAO, Overstay Tracking: A Key Component of Homeland
Security and a Layered Defense, GAO-04-82 (Washington, D.C.: May 21,
2004).

12

GAO/GGD-99-33.

13

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).

Page 8 GAO-06-895T

The Basic Pilot Program Shows Promise to Enhance Employment Verification,
but Current Weaknesses Could Undermine Increased Use

employment verification requirements and (2) discrimination against
authorized workers.14 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.

According to DHS officials, the department is assessing possible revisions
to the Form I-9 process, including reducing the number of acceptable work
eligibility documents, but has not established a target time frame for
completing this assessment and issuing regulations on Form I-9 changes.
DHS released an updated version of the Form I-9 in May 2005 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. Moreover, DHS recently issued interim
regulations on the use of electronic Forms I-9, which provide guidance to
employers on electronically signing and storing Forms I-9.15

Various immigration experts have noted that the most important step that
could be taken to reduce illegal immigration is the development of a more
effective system for verifying work authorization. In particular, the
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, and shows promise to enhance employment
verification and worksite enforcement efforts. Only a small portion-about
8,600 as of June 2006-of the approximately 5.6 million

14

GAO, Immigration Reform: Employer Sanctions and the Question of
Discrimination, GAO/GGD-90-62 (Washington, D.C.: Mar. 29, 1990).

15

In October 2004, Congress authorized the electronic Form I-9 to be
implemented by the end of April 2005. See Pub. L. No. 108-390.

Page 9 GAO-06-895T

employer firms nationwide have registered to use the pilot program, and
about 4,300 employers are active users.16

The Basic Pilot Program enhances the ability of participating employers to
reliably verify their employees' work eligibility and assists
participating employers with identification of false documents used to
obtain employment by comparing employees' Form I-9 information with
information in SSA and DHS databases. If newly hired employees present
counterfeit documents, the pilot program would not confirm the employees'
work eligibility because their employees' Form I-9 information, such as
the false name or social security number, would not match SSA and DHS
database information when queried through the Basic Pilot Program.

Although 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 told us that program data
could indicate cases in which employers do not follow program requirements
and therefore would help the agency 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 a 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. 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. However, USCIS officials told us
that they have concerns about providing ICE broader access to Basic Pilot
Program information because it could create a disincentive for employers
to participate in the program, as employers may believe that they are more
likely to be targeted for a worksite enforcement investigation as a result
of program participation. According to ICE officials, mandatory employer
participation in the Basic

The approximately 8,600 employers who registered to use the Basic Pilot
Program do not reflect the number of worksites or individual business
establishments using the program. The about 5.6 million firms in the
United States was the number of firms in 2002, which is the most current
data available. Under the Basic Pilot Program, one employer may have
multiple worksites that use the pilot program. For example, a hotel chain
could have multiple individual hotels using the Basic Pilot Program, but
the hotel chain would represent one employer using the pilot program. A
firm is a business organization consisting of one or more domestic
establishments in the same state and industry that were specified under
common ownership or control.

Page 10 GAO-06-895T

Pilot Program would eliminate the concern about sharing data and could
help ICE better target its worksite enforcement efforts on employers who
try to evade using the program. Moreover, these officials told us that
mandatory use of an automated 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, which
could assist ICE agents in proving employer violations of IRCA.

Although the Basic Pilot Program may enhance the employment verification
process and a mandatory program could assist ICE in targeting its worksite
enforcement efforts, weaknesses exist in the current program. For example,
the current Basic Pilot Program cannot help employers detect identity
fraud. If an unauthorized worker presents valid documentation that belongs
to another person authorized to work, the Basic Pilot Program would likely
find the worker to be work-authorized. Similarly, if an employee presents
counterfeit documentation that contains valid information and appears
authentic, the 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 providing a digitized photograph
associated with employment authorization information presented by an
employee.

Delays in the entry of information on arrivals and employment
authorization into DHS databases can lengthen the pilot program
verification process for some secondary verifications. Although the
majority of pilot program queries entered by employers are confirmed via
the automated SSA and DHS verification checks, about 15 percent of queries
authorized by DHS required secondary verifications by immigration status
verifiers in fiscal year 2004.17 According to USCIS, cases referred for
secondary verification are typically resolved within 24 hours, but a small
number of cases take longer, sometimes up to 2 weeks, due to, among other
things, delays in entry of data on employees who received employment
authorization documents generated by a computer and

In fiscal year 2004, only about 8 percent of total Basic Pilot Program
queries were referred to DHS for verification. Of these queries referred
to DHS for verification, about 85 percent were confirmed via the DHS
automated verification check.

Page 11 GAO-06-895T

camera that are not directly linked to DHS databases.18 Secondary
verifications lengthen the time needed to complete the employment
verification process and could harm employees because employers might
reduce those employees' pay or restrict training or work assignments,
which are prohibited under pilot program requirements, while waiting for
verification of their work eligibility.19 DHS has taken steps to increase
the timeliness and accuracy of information entered into databases used as
part of the Basic Pilot Program and reports, for example, that 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.20

Furthermore, employer noncompliance with Basic Pilot Program requirements
may adversely affect employees queried through the program. 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 and our review found evidence of some noncompliance with
these procedures, such as those that prohibit screening job applicants or
limiting of employees' work assignments or pay while contesting tentative
nonconfirmations. The Basic Pilot Program provides a variety of reports
that may help USCIS determine whether employers follow program
requirements, but USCIS officials told us that their 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.

According to USCIS officials, due to the growth in other USCIS
verification programs, current USCIS staff may not be able to complete
timely secondary verifications if the number of employers using the
program significantly increased. In particular, these officials said that
if a significant number of new employers registered for the program or if
the

18

Information on 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.

19

Institute for Survey Research and Westat.

20

DHS, Report to Congress on the Basic Pilot Program (Washington, D.C.: June
2004).

Page 12 GAO-06-895T

  Competing Priorities and Implementation Challenges Have Hindered Worksite
  Enforcement Efforts

Worksite Enforcement Has Been a Relatively Low Priority

program were mandatory for all employers, additional staff would be needed
to maintain timely secondary verifications. USCIS has approximately 38
Immigration Status Verifiers allocated for completing Basic Pilot Program
secondary verifications, and these verifiers reported that they are able
to complete the majority of manual verification checks within their target
time frame of 24 hours. However, USCIS officials said that the agency has
serious concerns about its ability to complete timely verifications if the
number of Basic Pilot Program users greatly increased.

Competing Priorities and Implementation Challenges Have Hindered Worksite 
Enforcement Efforts

Worksite Enforcement Has Been a Relatively Low Priority

Worksite enforcement is one of various immigration enforcement programs
that competes for resources and among INS and ICE responsibilities, and
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.21 In that 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 and that
the number of employer investigations INS conducted each year covered only
a fraction of the number of employers who may have employed unauthorized
aliens.22

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. In particular, INS and then ICE
focused available resources for worksite enforcement on identifying and
removing unauthorized workers from critical infrastructure sites, such as
airports and nuclear power plants, to help reduce vulnerabilities at those
sites. We previously reported that, if critical infrastructure-related
businesses were to be compromised by terrorists, this would pose a

21

INS, Interior Enforcement Strategy (Washington, D.C.: Jan. 1999).

22

GAO/GGD-99-33.

Page 13 GAO-06-895T

serious threat to domestic security. According to ICE, 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, and
other criminals. ICE has inspected Forms I-9 and employer records at
hundreds of critical infrastructure sites, including at about 200 airports
as part of Operation Tarmac and at more than 50 nuclear power plants as
part of Operation Glow Worm.23 More recently, ICE announced conducting
worksite enforcement operations at other critical infrastructure sites,
including at an airport, chemical plants, and a water and power facility.

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 2, 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.24

Operations Tarmac and Glow Worm were ICE initiatives to detect and remove
unauthorized workers from airports and nuclear power plants, respectively.

24More recent data on investigative agent work-years cannot be shared
publicly.

Page 14 GAO-06-895T

Figure 2: Investigative Agent Work-years Spent on Worksite Enforcement
Efforts and Agent Work-years Spent on Other Investigative Areas for Each
Fiscal Year from 1999 through 2003

Work-years

3,000

2,499 2,472 2,4302,500 2,341 2,290

2,000

1,500

    1,000

500 240

176

132

                                      117

90

0

                            1999 2000 2001 2002 2003

Fiscal year

Work-years for worksite enforcement

Work-years for all other investigative areas Source: GAO analysis of INS
case management data.

Although worksite enforcement has been a low priority relative to other
programs, ICE has proposed increasing agent resources for the worksite
enforcement program. For example, in its fiscal year 2007 budget
submission, ICE requested funding for 206 additional positions for
worksite enforcement. Yet, at this point, it is unclear what impact, if
any, these additional resources would have on worksite enforcement
efforts.

                              Page 15 GAO-06-895T

ICE Attributes Decline in Numbers of Employer Fine Notices and Worksite
Arrests to Document Fraud and Resource Allocation Decisions

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.25 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 fig. 3.)

Figure 3: Number of Notices of Intent to Fine Issued to Employers for Each
Fiscal Year from 1999 through 2004

Notices of intent to fine 450

417

400 350 300 250 200

178 162

150

100

100

53

50

3

0 1999 2000 2001 2002 2003 2004 Fiscal year

Source: GAO analysis of INS and ICE case management data.

The number of unauthorized workers arrested during worksite enforcement
operations has also declined since fiscal year 1999. As shown in figure 4,
the number of worksite arrests for administrative violations of
immigration law, such as for violating the terms of a visa, declined by
about 84 percent from 2,849 in fiscal year 1999 to 445 in fiscal year
2003.

25If warranted as a result of a worksite enforcement operation, ICE may
issue a notice of intent to fine to an employer that specifies the amount
of the fine ICE is seeking to collect from the employer. This amount may
be reduced after negotiations between ICE attorneys and the employer.

Page 16 GAO-06-895T

Figure 4: Number of Administrative Worksite Enforcement Arrests for Each
Fiscal Year from 1999 through 2003

Number of arrests 3,000 2,849

1999 2000 2001 2002 2003

    Fiscal year

Source: GAO analysis of INS case management data.

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 hired unauthorized workers. ICE officials also 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 addition, according to ICE, the allocation of INS and ICE resources to
other priorities has contributed to the decline in the number of notices
of intent to fine and worksite arrests. For example, INS focused its
worksite enforcement resources on egregious violators who were linked to
other criminal violations, like smuggling, fraud or worksite exploitation,
and deemphasized administrative employer cases and fines. Furthermore, ICE
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

Page 17 GAO-06-895T

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 securityrelated 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, 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.

As part of the Secure Border Initiative, in April 2006 ICE announced a new
interior enforcement strategy to target employers of unauthorized aliens,
immigration violators, and criminal networks. Under this strategy, ICE
plans to target employers who knowingly employ unauthorized workers by
bringing criminal charges against them. ICE has reported increases in the
numbers of criminal arrests, indictments, and convictions between fiscal
years 2004 and 2005 as a result of these efforts.26 Between fiscal years
2004 and 2005, ICE reported that the number of criminal arrests increased
from 160 to 165. Furthermore, in fiscal year 2005 ICE reported that the
number of criminal indictments and convictions were 140 and 127,
respectively, and in fiscal year 2004 the number of indictments and
convictions were 67 and 46, respectively. In addition, ICE reported
arresting 980 individuals on administrative immigration violations in
fiscal year 2005 as a result of its worksite enforcement efforts.

Data from fiscal years 2004 and 2005 cannot be compared with data for
previous fiscal years because the way INS agents entered data on
investigations into the INS case management system differs from the way
ICE agents enter such data into the ICE system. 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.

Page 18 GAO-06-895T

INS and ICE Have Faced Difficulties in Setting Fine Amounts and in
Detaining Unauthorized Workers, but Have Taken Steps to Address
Difficulties

INS and ICE have faced difficulties in setting and collecting 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 discussion 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.
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.

An ICE official told us that use of civil settlements and criminal charges
instead of pursuit of administrative fines, specifically in regard to
noncritical infrastructure employers, could be a more efficient use of
investigative resources. In 2005, 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
an administrative fine amount ever issued against an employer for ICE
violations. ICE officials also said that use of civil settlements could
help ensure employers' future compliance by including in the settlements a
requirement to entire into compliance agreements, such as the Basic Pilot
Program. In addition, as part of ICE's new interior enforcement strategy,
the agency plans to bring criminal charges against employers who knowingly
hire unauthorized workers, rather than using administrative fines to
sanction employers. The practice of using civil settlements and criminal
charges against employers is in the early stages of implementation;
therefore, the extent to which it may help limit the employment of
unauthorized workers is not yet known.

The former INS also faced difficulties in collecting fine amounts from
employers, but collection efforts have improved. We previously reported
that the former INS faced difficulties in collecting fine amounts from
employers for a number of reasons, including that employers went out of

Page 19 GAO-06-895T

business, moved, or declared bankruptcy.27 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, among other things. The ICE Debt Management Center has
succeeded in collecting the full amount of final fines on most of the
invoices issued to employers between fiscal years 1999 and 2004.28

In addition, ICE's Office of Detention and Removal has limited detention
space, and unauthorized workers detained during worksite enforcement
investigations have been a low priority for that space.29 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 the memo, aliens who are subjects of national security
investigations were among those groups of aliens given the highest
priority for detention, while those arrested as a result of worksite
enforcement investigations were to be given the lowest priority. ICE
officials stated that the lack of sufficient detention space has limited
the effectiveness of worksite enforcement efforts. For example, they said
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
and they may re-enter the workforce, in some cases returning to the
worksites from where they were originally arrested. Congress has provided
funds to the Office of Detention and Removal for additional bed spaces.
Yet, 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.

27

GAO/GGD-99-33.

28

The Debt Management Center issues invoices to employers for collecting
fine amounts. According to ICE, multiple invoices can be issued for each
final order for an employer fine, as a payment plan is typically
established for employers as part of the final order for the fine amount.

29

The Office of Detention and Removal is primarily responsible for
identifying and removing criminal aliens from the United States. The
office is also responsible for managing ICE's space for detaining aliens.

Page 20 GAO-06-895T

  Concluding Observations

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 ensure that employers meet
verification requirements. The current employment verification process has
not fundamentally changed since its establishment in 1986, and ongoing
weaknesses have undermined its effectiveness. Although DHS and the former
INS have been contemplating changes to the Form I-9 since 1997, DHS has
not yet issued final regulations on these changes, and it has not yet
established a definitive time frame for completing the assessment. We
recommended that DHS set a target time frame for completing this
assessment and issuing final regulations to strengthen the current
employment verification process and make it simpler and more secure.
Furthermore, the Basic Pilot Program shows promise for enhancing the
employment verification process and reducing document fraud if implemented
on a much larger scale. 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. USCIS is currently
evaluating the Basic Pilot Program to include, as we have recommended,
information on addressing the program's weaknesses to assist USCIS and
Congress in addressing possible future use of the Basic Pilot Program.

Even with a strengthened employment verification process, a credible
worksite enforcement program would be needed because no verification
system is foolproof and not all employers may want to comply with IRCA.
ICE's focus of its enforcement resources 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 has not addressed noncritical
infrastructure employers' noncompliance with IRCA. As a result, employers,
particularly those not located at or near critical infrastructure sites,
who attempted to circumvent IRCA have faced less of a likelihood that ICE
would investigate them for failing to comply with the current employment
verification process or for 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 and help ICE
identify the millions of unauthorized workers and the employers who hired
them.

Page 21 GAO-06-895T

This concludes my prepared statement. I would be pleased to answer any
questions you and the Subcommittee Members may have.

GAO Contact and Staff Acknowledgments

For further information about this testimony, please contact Richard Stana
at 202-512-8777.
 
Other key contributors to this statement were Frances Cook, Michelle
Cooper, Orlando Copeland, Michele Fejfar, Rebecca Gambler, Kathryn
Godfrey, Eden C. Savino, and Robert E. White.

                              Page 22 GAO-06-895T

                              Related GAO Products

Social Security Numbers: Coordinated Approach to SSN Data Could Help
Reduce Unauthorized Work. GAO-06-458T. February 16, 2006.

Immigration Enforcement: Weaknesses Hinder Employment Verification and
Worksite Enforcement Efforts. GAO-05-813. August 31, 2005.

Immigration Enforcement: Preliminary Observations on Employment
Verification and Worksite Enforcement Efforts. GAO-05-822T. June 21, 2006.

Social Security: Better Coordination among Federal Agencies Could Reduce
Unidentified Earnings Reports. GAO-05-154. February 4, 2005.

Immigration Enforcement: DHS Has Incorporated Immigration Enforcement
Objectives and Is Addressing Future Planning Requirements. GAO-05-66.
October 8, 2004.

Overstay Tracking: A Key Component of Homeland Security and a Layered
Defense. GAO-04-82. May 21, 2004.

Homeland Security: Challenges to Implementing the Immigration Interior
Enforcement Strategy. GAO-03-660T. April 10, 2003.

Identity Fraud: Prevalence and Links to Alien Illegal Activities.

GAO-02-830T. June 25, 2002.

Illegal Aliens: Significant Obstacles to Reducing Unauthorized Alien
Employment Exist. GAO/GGD-99-33. April 2, 1999.

Immigration Reform: Employer Sanctions and the Question of Discrimination.
GAO/GGD-90-62. March 29, 1990.

(440528)

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