May 2007

May 2007 

BASIC PILOT PROGRAM - WHAT IS IT?

There has been a great deal of news recently about illegal immigration and the role employers play in determining whether a person is eligible to work in the United States. One system, called the Basic Pilot Program ("BPP"), has been created by the federal government to assist employers in that determination. It was developed by the Department of Homeland Security and is administered through the US Citizenship and Immigration Service (USCIS) in partnership with the Social Security Administration (SSA).

BPP is a web based system where an employer inputs data taken from an employee's I-9 form and one of several messages is returned to the employer: the social security number is valid, invalid, does not match, or unable to confirm. This is a voluntary program and an employer must register to be able to use it. There are certain restrictions for when it can be used. It is only legally permissible to use the BPP system after an offer of employment has been made to an employee. The verification must be initiated no later than three days after the employee begins working. Information from the BPP cannot be used to pre-screen individuals, re-screen individuals after being employed for longer than three days, or discriminate against individuals legally authorized to work in the United States.

If the BPP returns an "invalid" or "does not match" message back to the employer, the employer should first check for clerical errors and if none are found, it should then notify the employee that the system did not confirm the information. The employee is then given an opportunity to contest the response. If the employee attested on the I-9 form that he or she is a U.S. citizen, the employee is referred to an SSA Officer. The employee must visit an SSA office within eight business days to resolve the discrepancy with SSA's records. If the employee attested on the I-9 that he or she is not a U.S. citizen, the employer contacts SSA who accesses the INS database for employment eligibility information. If there is no resolution about the discrepancy, the employer may terminate the employment.

The BPP is a voluntary program, except if an employer is working as a contractor for a state or local government agency. Colorado statutes (Section 8-17.5-101 et.seq.) prohibit a state agency or political subdivision from entering into a public contract with a contractor who knowingly employs an illegal alien, or who knowingly contracts with a subcontractor who employs an illegal alien. Prior to executing a public contract, a potential contractor must certify that it does not knowingly employ or contract with an illegal alien and that the contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens (Section 8-17.5-102(1), C.R.S.). If it is discovered that a subcontractor of the contractor has knowingly hired an illegal alien, the contractor is required to notify the subcontractor and terminate the subcontract if the subcontractor does not terminate the employment of the illegal alien within 3 days of receipt of the notice.

In addition to verifying participation in the BPP prior to entering into a public contract, Colorado statutes provide that an employer may be investigated periodically to determine if the employer is complying with the provisions of the public contract regarding non-hiring of illegal aliens. Investigations may include on-site inspections, review of documentation regarding citizenship, or any other reasonable steps needed to determine whether a contractor is in compliance with the statutes.

If a contractor violates the statutes, the state agency or political subdivision may terminate the contract for a breach of contract and the contractor shall be liable for actual and consequential damages to the state agency or subdivision.