[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
                     LACK OF WORKSITE ENFORCEMENT 
                         AND EMPLOYER SANCTIONS

=======================================================================

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 21, 2005

                               __________

                           Serial No. 109-51

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
21-911                      WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                 Luke Bellocchi, Full Committee Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 21, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     2

                               WITNESSES

Mr. Richard M. Stana, Director, Homeland Security and Justice 
  Issues, U.S. Government Accountability Office
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Terence P. Jeffrey, Editor, Human Events
  Oral Testimony.................................................    32
  Prepared Statement.............................................    33
Mr. Carl W. Hampe, Partner, Baker & McKenzie, LLP
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37
Ms. Jennifer Gordon, Associate Professor of Law, Fordham Law 
  School
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California........    71


                     LACK OF WORKSITE ENFORCEMENT 
                         AND EMPLOYER SANCTIONS

                              ----------                              


                         TUESDAY, JUNE 21, 2005

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:25 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John N. 
Hostettler, Chairman of the Subcommittee, presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    In March this Subcommittee held hearings on the lack of 
immigration enforcement resources, which has led to much 
discussion on Capitol Hill regarding the need to boost the 
number of Border Patrol agents, and Immigration and Customs 
Enforcement, or ICE, investigators.
    It now appears that Congress will include in its final 
budget for 2006 the majority of Border Patrol agents and ICE 
agents authorized in the Intelligence Reform and Terrorism 
Prevention Act of 2004, but does not include the full number of 
agents authorized.
    Increasing the number of agents in the field, however, will 
only be helpful in bringing illegal immigration under control 
if the agents are allowed to be fully committed to immigration 
enforcement and not solely to other enforcement duties.
    In May, the Subcommittee held hearings on how immigration 
enforcement has suffered as a result of both ICE and CBP having 
multiple missions, and ICE lacking a written mission strategy.
    Even if multiple missions were not distracting the critical 
national security work of these agencies of the Department of 
Homeland Security, this Subcommittee must ask whether the 
internal immigration enforcement that has been conducted since 
ICE's creation has been effective.
    There is no doubt that physical control of the borders by 
Border Patrol will play a critical role in bringing law and 
order over illegal immigration; however, this alone cannot be 
sufficient because almost half of illegal aliens arrived here 
legally and simply found jobs and never went back.
    The ``black market'' in cheap illegal labor must be 
attacked for the safety of the American workers and the Nation 
as a whole.
    As this chart indicates, thousands of employers are sending 
in duplicate Social Security numbers multiple times for 
different workers, perhaps hiding the identity or criminal 
history of illegal aliens working next to you.
    The ``jobs magnet'' that has motivated so many aliens to 
enter the country and work illegally has--as we learned in last 
month's hearing on American workers--impacted most heavily on 
those low-income and unskilled Americans that are the most 
vulnerable in the economy.
    The Congressional Budget Office published these figures in 
November.
    Moreover, the terrorist and criminal ``needles'' in the 
worksite haystack cannot be detected without the overall 
deterrent effect that broad and aggressive worksite enforcement 
would achieve.
    In other words, ICE must reduce the size of the haystack if 
ICE is to find the really bad apples. So far, ICE appears to be 
reactive to events rather than proactive in pursuing a 
strategic plan.
    In fact, as this most important chart of the hearing 
indicates, ICE has pursued almost no worksite enforcement at 
all, ever since its creation.
    As I hope you will see and understand, there has been a 
dramatic decline in the work-years, work-hours devoted by 
legacy Immigration & Naturalization Service, and by ICE agents 
toward worksite enforcement--enforcing the 1986 law providing 
that employers could not employ illegal aliens and had to 
verify the documents of all new employees.
    Save a few ``Critical Infrastructure'' worksites, ICE has 
conducted almost no worksite enforcement. Of the critical 
infrastructure facilities investigated, no employer has been 
fined when illegal aliens have been found at the worksite.
    In total, only three Notice of Intent to Fine, or NIFs, 
have been issued by ICE in FY 2004, following the long trend 
that this following chart indicates.
    In total, worksite enforcement amounts to less than 5 
percent of all of ICE's investigation activities. ICE today is 
doing less worksite enforcement than even the Clinton 
Administration did, and that is quite a dubious distinction.
    Today we will learn why Congress acted in 1986 to create 
employer sanctions and why they have never been adequately 
enforced.
    Mr. Hostettler. And at this time I yield to the gentlelady 
from Texas, the Ranking Member, for an opening statement.
    Ms. Jackson Lee. I thank the distinguished Chairman, and I 
thank the witnesses.
    I'm going to be forthright this afternoon and indicate that 
I've had a number of thoughts about workforce, worksite 
enforcement. And as someone who has repeatedly offered the 
comments that immigration does not equate to terrorism, and 
have a full recognition that really what we're facing in the 
United States is an onslaught of people who have come for 
opportunity.
    The system that we have structured begs and creates this 
pool of illegal immigration because we have not fixed the 
system of legal immigration. And frankly, I think it's 
important in this instance, particularly talking about 
employment, employers, worksites, to note that the origins of 
our immigration cycle, at least that of the 1800's, late 1800's 
and early 1900's, were people seeking opportunity, economic 
opportunity, and those who fled persecution.
    And so I've had sort of the thought that this hearing will 
be very important to the focus that I will give to legislation 
that I am considering, whether or not in fact worksite 
enforcement in a harsh way actually hurts Americans, actually 
hurts employers, and does little to stem the tide of illegal 
immigration.
    The Immigration Reform and Control Act of 1986 established 
Federal sanctions for employing undocumented immigrants. The 
objective of these sanctions is to eliminate the United States 
as a job magnet that draws undocumented immigrants to the 
United States and keeps them here.
    IRCA also established legalization programs for some 
immigrants who had been residing illegally in the United States 
prior to 1982 and for others who had worked in the United 
States agriculture for at least 1 year. Approximately 3 million 
obtained lawful status under these programs. Fines for first-
time violations started at $250 per unauthorized employee, and 
increased to as much as 10,000 per employee for third and 
subsequent violations. Employers engaging in a pattern and 
practice of employing unauthorized workers are subject to fines 
of as much as 3,000 per employee and incarceration for up to 6 
months.
    IRCA has established a universal employment verification 
system. Violations of the verification requirements may result 
in penalties ranging from $100 to 1,000 per employee. Employers 
are required to attest that they have examined documentation 
that appears to be genuine and that establishes the employee's 
identity and authorization to work in the United States.
    The former Immigration & Naturalization Service, Department 
of Homeland Security have not made employer sanctions a 
priority. We can see the evidence of it. We can read and hear 
about headlines of stories of illegal immigrants now in 
security areas or areas that should be having the necessity of 
security clearances. Only 417 Notices of Intent to Fine were 
issued in 1999, 178 in 2000, 100 in 2001, 53 in 2002, 162 in 
2003, and only 3 in 2004. Maybe we're getting better.
    The employer sanction system has had some unintended 
consequences. According to Jennifer Gordon in her book, 
``Suburban Sweatshops,'' many employers take a minimalist 
approach to complying with the law until the workers make a 
demand the employers want to resist. It may be a simple request 
for a bathroom break or for overtime wages. More often it is a 
union-organizing campaign. If he has not filled out I-9 forms, 
he decides to comply with the law, forcing all the workers to 
provide legal papers on the spot, which means immediate 
termination. If he has I-9 forms filed already, he begins to 
pay new attention to them, calling the Social Security 
Administration to check on the validity of numbers.
    Ms. Gordon concludes that employer sanctions have become 
the perfect cloak under which to carry out an effective 
campaign of intimidation, sending the clear message that 
immigrant workers who organize are not the kind of immigrant 
workers to get jobs, but it also gives you a rotating door, but 
it does not provide an opportunity for hiring new American 
workers or documented workers, it only throws out the last 
bunch and adds a new bunch that will be quiet, asks no 
questions, and subject themselves to low-based wages. It is not 
easy to stop this kind of abuse.
    The National Labor Relations Act provides that it is an 
unfair labor practice to fire workers on the basis of union 
activity. The normal remedy for such an offense is to require 
the employer to rehire the fired workers and make them whole, 
which may include back pay. In Hoffman Plastic Compounds v. 
National Labor Relations Board, however, the U.S. Supreme Court 
ruled that Federal immigration policies prohibit awarding 
undocumented workers back pay under the provisions of the 
National Labor Relations Act.
    This decision has made it possible for employers to fire 
undocumented workers for union activities with impunity, and 
some employers also have used this decision as a justification 
for denying undocumented the protections of the Fair Labor 
Standards Act. At that level of work, make it very clear that I 
don't believe that that employer then goes out and recruits 
large numbers of American workers.
    The AFL-CIO advocates strong penalties against employers 
who use workers' immigration status to suppress their rights 
and labor protections, thereby also denying fair compensation 
to documented American workers as well. And I agree that this 
is a problem. It is unfair to the foreign workers and it has 
the indirect effect of harming workers who are lawful permanent 
residents or citizens of the United States. Unscrupulous 
workers will not hire American workers if they can force 
undocumented employees to work for lower wages than the 
American workers would require.
    So a solution, Mr. Chairman, is partly this hearing, and 
being informed, and hearing from a diverse groups of witnesses, 
which I appreciate, who are before us.
    But I think the other solution is to move quickly to the 
overall comprehensive immigration reform that this Nation is 
begging to have, and I look forward to the Save America 
Comprehensive Immigration Act of 2005 that I've authored, that 
has seen--that has received a number of very favorable reviews 
from experts dealing with immigration law, to have a hearing so 
that we can have one piece of it be heard, and that is the 
earned access to legalization, the ability to get in line, to 
stand in line and to seek legalization so that we can have 
workers that are on equal plane with American workers, and 
begin to build jobs and create jobs as opposed to an approach 
that may not create jobs.
    I thank you, Mr. Chairman, and with that, I yield back my 
time.
    Mr. Hostettler. The gentlelady's time has expired.
    At this time, I will introduce members of our panel. 
Richard Stana is the Director of Homeland Security and Justice 
Issues at the Government Accountability Office. During his 29-
year career with GAO he has directed reviews on a wide variety 
of complex military and domestic issues in headquarters, the 
field and overseas offices.
    Most recently, he has directed GAO's work relating to law 
enforcement, drug control, immigration, customs, corrections, 
court administration and election systems.
    Mr. Stana earned a Master's degree in Business 
Administration with a concentration in Financial Management 
from Kent State University. He is also a graduate of Cornell 
University's Johnson School of Management Program on Strategic 
Decision Making, and Harvard University's JFK School of 
Government Program on Leadership and Performance.
    Since September 1996, Terence Jeffrey has served as Editor 
of Human Events--the National Conservative Weekly. In 1991, Mr. 
Jeffrey became the Research Director of Pat Buchanan's 
Republican presidential primary campaign, and served as 
campaign manager for Buchanan's second Republican presidential 
primary campaign.
    Mr. Jeffrey started his writing career in 1987 when he 
became an editorial writer for The Washington Times. Prior to 
that he taught high school, studied Arabic at the American 
University in Cairo, and studied at Georgetown University. Mr. 
Jeffrey graduated from Princeton University with a bachelor's 
degree in English literature.
    Carl Hampe is currently a partner at Baker & McKenzie, 
focusing on immigration and legislative matters. From 1992 to 
1993, Mr. Hampe was Deputy Assistant Attorney General in the 
Office of Legislative Affairs, U.S. Department of Justice, 
where he was responsible for all legislation in Congress which 
affected the Immigration & Naturalization Service or the 
Executive Office for Immigration Review. In addition, Mr. Hampe 
represented the U.S. in appellate immigration litigation.
    Prior to that he served as Counsel and Minority Counsel to 
the Senate Subcommittee on Immigration and Refugee Affairs of 
the Committee on the Judiciary.
    Mr. Hampe earned his B.A. with honors from Stanford 
University and graduated magna cum laude from the Georgetown 
University Law Center.
    Jennifer Gordon is Associate Professor of Law at Fordham 
Law School in New York City. In 1992, she founded the Workplace 
Project in New York, a nationally recognized grass roots 
workers center that advocates for just treatment on the job. 
Ms. Gordon has worked as a consultant to the AFL-CIO, the 
Campaign for Human Development of the Catholic Church, and the 
Ford Foundation, among others.
    She is also author of the book ``Suburban Sweatshops: The 
Fight For Immigrant Rights,'' that we heard about earlier. And 
she has received numerous awards for her work, including being 
selected as one of the National Law Journal's 40 leading 
lawyers under the age of 40, and being named ``Outstanding 
Public Interest Advocate of the Year'' by the National 
Association for Public Interest Law.
    Ms. Gordon earned her B.A. from the Radcliffe Institute at 
Harvard University and her J.D. from Harvard Law School.
    At this time, according to Committee procedure, I would ask 
the witnesses to stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Hostettler. Thank you. You may be seated.
    Let the record reflect that the witnesses responded in the 
affirmative.
    Mr. Stana, you are recognized for 5 minutes, and all 
members of the panel will have 5 minutes for your opening 
statement. Mr. Stana.

TESTIMONY OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND 
     JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Stana. Chairman Hostettler, Congresswoman Jackson Lee 
and Members of the Subcommittee, I appreciate the opportunity 
to participate in this hearing today on worksite enforcement 
and employer sanctions efforts.
    As we and others have reported in the past, the opportunity 
for employment is a key magnet attracting illegal aliens to the 
United States. In 1986, Congress passed the Immigration Reform 
and Control Act, or IRCA, which made it illegal to knowingly 
hire unauthorized workers. IRCA established an employment 
verification process for employers to verify all newly hired 
employees' work eligibility, and a sanctions program for fining 
employers who did not comply with the act.
    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. Yet, 
immigration, especially illegal immigration, can have adverse 
consequences by helping to depress wages for low-skilled 
workers. The Commission concluded that deterring illegal 
immigration requires a more reliable employment verification 
process and a more robust worksite enforcement program.
    My prepared statement is drawn from our ongoing work for 
this Subcommittee to assess the employment verification process 
and ICE's worksite enforcement program. I'd like to briefly 
summarize it now and discuss the current employment 
verification process and ICE's priorities and resources for 
worksite enforcement.
    The employment verification process is primarily based on 
employers' review of work authorization documents presented by 
new employees, but various weaknesses, such as its 
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, the 
availability and use of counterfeit documents and the 
fraudulent use of documents that are valid and belong 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.
    It also makes it easier for employers who don't want to 
comply, to knowingly hire unauthorized workers without fear of 
sanction. This further is complicated by the fact that 
employees can present 27 different documents to establish their 
identity and/or work eligibility. In 1998, INS proposed 
revising the verification process and reducing the number of 
acceptable work eligibility documents to 14, but that proposal 
was never acted upon.
    To bolster the verification process, DHS, at the direction 
of Congress, introduced the Basic Pilot Program, a voluntary, 
automated system for employers to electronically check 
employees' work eligibility information against information in 
DHS and Social Security Administration databases. In fiscal 
year 2004, about 2,300 employers actively used the Basic Pilot 
Program. This program shows promise to help identify the use of 
counterfeit documents and assist ICE in better targeting its 
worksite enforcement efforts. Yet a number of weaknesses exist 
in the pilot program, including its inability to detect the 
fraudulent use of valid documents, and DHS delays in entering 
information into its databases. In addition, CIS officials told 
us the current Basic Pilot Program would not be able to 
complete timely verifications with existing resources if the 
number of employers using the program significantly increased.
    Turning to worksite enforcement, this has been a low 
priority under both INS and ICE. In fiscal year 1999, INS 
devoted about 240 FTEs, or about 9 percent of its total agent 
work-years, to address the employment of millions of 
unauthorized workers. In fiscal year 2003, it devoted about 90 
FTE's or about 4 percent of total agent work-years. That many 
people would not fill the chairs behind me in this hearing 
room. Furthermore, the number of Notices of Intent to Fine 
issued to employers for knowingly hired unauthorized workers or 
improperly completing employment verification forms dropped 
from 417 in fiscal year 1999 to 3 in fiscal year 2004.
    Some of this reduced activity in worksite enforcement can 
be attributed to a shift in agency priorities. Since 9/11, ICE 
focused worksite enforcement resources almost exclusively on 
identifying and removing unauthorized workers from critical 
infrastructure sites, such as airports and nuclear power 
plants. Other issues have also hampered worksite enforcement 
issues. In particular, the availability and use of counterfeit 
documents has made it difficult for ICE agents to prove that 
employers knowingly hired unauthorized workers. Further, 
employers who knowingly hire or continue to employ unauthorized 
aliens may be fined from $275 to $11,000 for each employee. 
Fine amounts are often negotiated down in value during 
discussions between ICE attorneys and employers to a point so 
low that employers might view it as a cost of doing business 
rather than as an effective deterrent. And collecting fines 
from employers is difficult in many cases because employers go 
out of business or declare bankruptcy.
    In closing, we plan to further develop these and other 
program management issues and report to you on the final 
results of our work later this summer. This concludes my oral 
statement. I'd be happy to address any questions that Members 
of the Subcommittee may have.
    [The prepared statement of Mr. Stana follows:]

                 Prepared Statement of Richard M. Stana




    Mr. Hostettler. Thank you, Mr. Stana.
    Mr. Jeffrey.

     TESTIMONY OF TERENCE P. JEFFREY, EDITOR, HUMAN EVENTS

    Mr. Jeffrey. I would like to thank you, Chairman Hostettler 
and Congresswoman Jackson Lee and the other Members of the 
Committee for having me here today.
    I will briefly outline a problem I believe is happening 
where national security, Social Security and corporate 
accountability intersect.
    In February, Admiral James Loy, Deputy Secretary of 
Homeland Security, told the Senate Intelligence Committee, 
``Recent information from ongoing investigations, detentions 
and emerging threat streams strongly suggest that al Qaeda has 
considered using the Southwest border to infiltrate the United 
States. Several al Qaeda leaders believe operatives can pay 
their way into the country through Mexico and also believe 
illegal entry is more advantageous than legal entry for 
operational security reasons.''
    If for no other reason than national security, the Federal 
Government needs to take the most effective steps possible to 
secure our border and enforce the immigration laws. Yet today, 
almost 4 years after the September 11, 2001 terrorist attacks, 
unidentified persons continue to pour across our border and 
many millions live here in violation of our immigration laws, 
seemingly with impunity. Certainly the opportunity to find work 
in the U.S. is a powerful magnet for illegal immigrants. The 
sheer number of these job seekers makes it more difficult for a 
limited number of immigration law enforcement officers to 
secure the border and enforce the immigration law in the 
interior of the country.
    A focused effort to shut down the job magnets, to stop 
employers from routinely hiring large numbers of illegal 
immigrants could diminish this flow, thus making it easier to 
secure our country. Where are those job magnets?
    The Social Security Administration I believe has already 
created what could be an effective road map for worksite 
enforcement. When SSA gets a W-2 report from an employer that 
it cannot match to a known taxpayer, it dumps that W-2 into 
what it calls the Earning Suspense File. These are W-2s, for 
example, that have bad Social Security numbers or Social 
Security numbers and names that do not match, and where efforts 
to find the person to whom the W-2 belong have failed. There 
are many reasons an employer might file one of these bad W-2s.
    One reason, however, is that the W-2 represents a non-
citizen, whether he entered legally or illegally, is 
unauthorized to work in the U.S. In fact, then SSA Inspector 
James G. Huse told this Committee in 2002, ``Our reviews of the 
suspended wages in the ESF suggest that illegal work is the 
primary cause of suspended wages.''
    If that is the case, it can at least be reasonably 
suspected that employers that routinely file large numbers of 
unmatchable W-2s may be hiring large numbers of illegal 
immigrants. According to an audit report published in October 
by the Social Security Administration's Inspector General, each 
year the SSA's Office of Public Services and Operations Support 
develops a national listing of employers who submit 100 or more 
suspended wage items. This can be a road map for worksite 
enforcement.
    But perhaps even a better map would be the October report 
itself, which lists by state, but not publicly by name, the 100 
U.S. employers who filed the largest number of unmatchable W-2s 
between 1997 and 2001. You can see the appendix from the report 
up here, which lists the No. 1 company on this list, which is 
based in Illinois. It filed a remarkable 131,991 unmatchable W-
2s over 5 years, reporting more than 524 million in wages paid 
by unknown taxpayers to the Federal Government. SSA believes 
current law prevents it, with certain exceptions, from naming 
such companies to the Department of Homeland Security.
    The law should be changed. DHS ought to be given the 
manpower and the mandate to find out if some of the U.S. 
employers filing large numbers of unmatchable W-2s are also 
creating a magnet that draws large numbers of illegal 
immigrants into the United States.
    Thank you.
    [The prepared statement of Mr. Jeffrey follows:]

                Prepared Statement of Terence P. Jeffrey

    The Department of Homeland Security has been failing in its mission 
to enforce the immigration laws against employers who, by hiring large 
numbers of illegal aliens, create the magnet that draws large numbers 
of illegal aliens into the United States.
    Meanwhile, the Social Security Administration has information that 
could be very useful to DHS in getting this job done. But SSA believes 
the law prevents it from giving this information to DHS.
    I will briefly describe for you a problem occurring where national 
security, Social Security and corporate accountability intersect.
    Testifying in the Senate Intelligence Committee in February, 
Admiral James Loy, the deputy secretary of Homeland Security, said, 
``Several al-Qaeda leaders believe operatives can pay their way into 
the country through Mexico and also believe illegal entry is more 
advantageous than legal entry for operational security reasons.''
    Loy also pointed to ``the threat from criminal groups and persons 
who engage in criminal enterprise that supports or contributes to 
terrorism and which has homeland security implications.'' He cited, 
among other examples, ``people smuggling . . . document forgery and 
false identity provision.''
    These are crimes that serve the needs not only of illegal aliens 
who sneak into the United States to find work, but also of illegal 
aliens who would sneak into the United States to commit terror.
    Mass illegal immigration--and employers who encourage it by hiring 
large numbers of illegal aliens--has created an inland sea of 
lawlessness in which terrorist sharks can readily swim.
    A recent case illustrates how someone with terrorist connections in 
the Middle East can enter the United States illegally from Mexico and 
then live here as an illegal alien.
    In March, Mahmoud Kourani pleaded guilty to conspiracy to support 
the terrorist organization Hezbollah by helping raise money for it in 
the United States. On June 14, he was sentenced to 4 and \1/2\ years in 
prison. ``The government,'' the Associated Press reported, ``said 
Kourani paid a Mexican consular official in Beirut $3,000 for a visa to 
enter Mexico, then sneaked across the U.S.-Mexican border in 2001 . . 
.''
    How many other security risks have entered the United States this 
way? If we do not secure our border, and do not seriously enforce the 
immigration laws within the country, how could we ever know?
    The government does know, however, where to look for the employment 
magnets that attract large numbers of illegal aliens into the United 
States. If it were to shut these magnets down, it could significantly 
curtail the number of work-seeking illegal aliens trying to enter the 
country, thus making it easier for the Department of Homeland Security 
to secure the border itself and to find those who may have illicitly 
crossed it with intent to harm Americans.
    The Social Security Administration has already developed 
information that can be used as the road map for worksite immigration 
enforcement.
    The SSA maintains something it calls the Earnings Suspense File. 
This is the place where it puts W-2 forms submitted by employers that 
cannot be matched to known taxpayers. These W-2s may have a Social 
Security Number that does not match the name on the form, or a Social 
Security Number that has never been issued by SSA, or a number that 
simply could not be a Social Security Number.
    There are many reasons employers might file W-2s with bad Social 
Security Numbers. But one significant reason is the hiring of aliens, 
who whether they entered the country legally or illegally, are not 
authorized to work in the United States. In fact, in a statement 
submitted to this subcommittee on Sept. 19, 2002, then-SSA Inspector 
General James G. Huse, Jr., said: ``Our reviews of the suspended wages 
in the ESF suggest that illegal work is the primary cause of suspended 
wages.''
    This being the case, it is reasonable to at least suspect that 
employers habitually filing large numbers of bad W-2s may be hiring 
large numbers illegal aliens.
    The Social Security Administration, fortunately, already compiles 
an annual list of employers who file large numbers of bad W-2s. In an 
October 2004 audit report entitled ``Employers With the Most Suspended 
Wage Items in the 5-Year Period 1997 through 2001,'' the SSA Inspector 
General's office said that SSA's Office of Public Services and 
Operations Support each year ``develops a national listing of employers 
who submit 100 or more suspended wage items.''
    The same audit report listed the 100 employers that between 1997 
and 2001 filed the largest number of W-2s that could not be matched to 
known taxpayers. The report did not reveal the names of these 
employers, but identified them by the state in which they are based. It 
also listed how many W-2s each company had filed during the five-year 
period, and how many of these were bad.
    Some of these employers apparently filed tens of thousands of bad 
W-2s, year after year.
    The No. 1 filer of bad W-2s between 1997-2001, for example, was 
based in Illinois. It filed 131,991 bad W-2s over the five years, 
reporting more than $524 million in wages that SSA could not attribute 
to known taxpayers. These bad W-2s accounted for 11.68% of all W-2s 
this company filed during that time.
    The No. 2 filer of bad W-2s was based in Texas. It filed 108,302 
bad W-2s over the five years, reporting more than $532 million in wages 
that SSA could not attribute to known taxpayers. More than 14% of this 
employer's W-2 were bad.
    A California employer, ranked No. 13, had more than 78% its W-2s 
dumped into the Earnings Suspense File. A Florida employer, ranked No. 
47, had more than 81%.
    One of the Top 100 filers of bad W-2s, the audit determined, was a 
state agency. The report did not reveal in which state this agency was 
based.
    The report also included troubling information beyond the Top 100 
list. For example, it noted that a California based security guard 
company had filed 8,902 W-2s in 2001 of which 4,321, or 49%, were bad
    I asked the SSA IG's office if it had notified the Department of 
Homeland Security about this security guard company's problem. The IG's 
office responded that ``with limited exception, Section 6103 of the 
Internal Revenue Code restricts the disclosure of such information. In 
our January 2001 report on Obstacles to Reducing Social Security Number 
Misuse in the Agricultural Industry, we recommended that SSA reevaluate 
the application of existing disclosure laws or seek legislative 
authority to remove barriers that would allow SSA to share information 
regarding chronic problem employers with the other federal agencies 
such as the Department of Homeland Security. Until such disclosure 
restrictions are removed, we are unable to share this type of 
information outside the context of a criminal investigation.''
    In a report published in April, entitled ``Social Security Misuse 
in the Service, Restaurant, and Agricultural Industries,'' the SSA IG's 
office said: ``Because we believe intentional misuse of SSNs by 
unauthorized noncitizens has been a major contributor to the ESF's 
growth, we will provide a copy of this report under separate cover to 
the DHS inspector general.''
    ``Furthermore,'' said the report, ``we continue to believe SSA 
should seek legislative authority to remove barriers that would allow 
the Agency to share information regarding chronic problem employers 
with DHS.''
    Congress needs to tear down the wall that prevents SSA from passing 
this information to DHS.
    Yet, tearing down the wall may not be enough. Clearly, the agents 
who do immigration investigations for DHS deserve respect and credit 
for the excellent work they do. But there does not seem to be enough of 
them.
    Last Friday, I asked DHS's Immigration and Customs Enforcement 
(ICE) division how many full-time active duty investigators it has 
investigating violations of immigration laws. ``There are roughly 5,500 
criminal investigators at ICE,'' the agency responded. ``These special 
agents enforce both immigration and customs laws, which together 
involve more than 400 statutes. Nearly all ICE criminal investigators 
have completed cross-training to enforce these 400 statutes. There is 
not a specific segment of the ICE special agent population that is 
solely dedicated `full-time' to enforcing one particular violation of 
law at the expense of all other violations that ICE is responsible for 
enforcing. On any given day, investigative resources are prioritized to 
best address national security and public safety priorities.
    ``In accordance with ICE's homeland security mission, ICE special 
agents prioritize worksite enforcement efforts by focusing on those 
worksite investigations related to critical infrastructure, national 
security and employers who engage in egregious criminal violations.
    ``Unauthorized workers employed in sensitive security sites and 
critical infrastructure facilities--such as airports, nuclear power and 
chemical plants and defense contractors--pose potential homeland 
security threats,'' ICE said. ``Not only is their identity in question, 
but they are also vulnerable to exploitation by terrorists and other 
criminals.''
    ICE provided a number of examples of the good work its agents have 
done in this area.
    But, if on ``any given day'' only a portion of ICE's 5,500 
investigators are dedicated to worksite enforcement, that means it is 
quite possible that the California security guard company that filed 
4,321 bad W-2s back in 2001 may have had more people working that year 
on bad Social Security Numbers than the Department of Homeland Security 
has working today to enforce the immigration law at worksites across 
the entire United States.
    This is absurd.
    Congress has authorized increasing the number of ICE investigators 
by 800 per year for the next five years. These increases should be 
fully funded, and more should be added if necessary. DHS should then 
deploy some of these agents specifically to investigate those employers 
that SSA has discovered habitually file large numbers of bad W-2s. If 
the evidence shows these employers have knowingly hired illegal aliens 
they should be held accountable under the law.
    If the federal government shuts down the magnet that attracts 
illegal aliens here to work, it will be easier to secure our country 
against those who come here illegally looking not to work, but to harm 
us.

    Mr. Hostettler. Thank you, Mr. Jeffrey.
    Mr. Hampe.

   TESTIMONY OF CARL W. HAMPE, PARTNER, BAKER & McKENZIE, LLP

    Mr. Hampe. Thank you, Mr. Chairman, Congresswoman Jackson 
Lee and Members of the Subcommittee. Thank you for inviting me 
to testify today, and thank you for devoting your time to this 
critically important issue, the oversight of employer 
sanctions.
    I share my 22-year experience with employer sanctions in my 
written statement, and would like to highlight the key 
historical lessons and provide some recommendations in the next 
5 minutes.
    The history of employer sanctions is not whether they 
should be part of the law or not. There is a strong bipartisan 
support for that. There has been for the past 20 years, and 
there is today. But rather, the historical challenge is how to 
create a worker verification system that is relatively secure, 
and that imposes minimal burdens on U.S. employers. 
Unfortunately, a secure worker verification system has so far 
proven to be elusive, both politically and practically, and 
thus is the Achilles heel of employer sanctions.
    Enactment of sanctions in 1986, with its reliance solely on 
existing Federal, State and local documents, created ripe 
opportunities for fraud, and after sanctions were enacted the 
fraud became only more prevalent. The subsequent INS 
implementing regulations provided a long list of documents that 
satisfied the I-9 form and ultimately only increased the 
problem. While the low level of employer sanctions enforcement 
by ICE is inappropriate and must be reversed, the 
susceptibility of the current regime to document and identity 
fraud creates I believe an understandable feeling of futility 
and low morale within this agency.
    And certain structural forms are necessary so that ICE can 
rededicate itself to sanctions enforcement with a sustainable 
strategy. One route to doing so is to expand the use of 
computerized database checks of the alien number or Social 
Security number of new employees. The Jordan Commission 
recommended this in 1994. The Congress created the Basic Pilot 
in 1996 in response, but further improvements to Basic Pilot 
are necessary, as indicated by GAO.
    Another option is to increase the security of current 
identity and work authorization documents. Congress took a 
significant step forward toward improving the identity 
requirement of the I-9 form when it required improvements in 
State driver's licenses in the REAL ID law.
    A remaining significant challenge, however, is the security 
of the principal work authorization document, the Social 
Security card, and the political opposition that exists to 
making this document more secure. A related problem is the 
recent prevalence of identity theft based on stolen Social 
Security numbers. Both issues must be addressed if employer 
sanctions are to obtain a level of internal integrity that 
policymakers would find satisfactory.
    I do believe there's a bright spot in this picture. In my 
post-government experience I have found that most employers 
agree, most employers agree that they should not knowingly hire 
unauthorized aliens, and they're willing to tolerate reasonable 
mechanisms to demonstrate compliance. This is an important fact 
for ICE to understand, as an improved employer sanctions 
enforcement regime must view the vast majority of U.S. 
employers as partners and not adversaries in the enforcement 
process.
    Let me provide three recommendations on some improvements.
    One, once the REAL ID law is implemented, Congress or DHS 
should limit the documents that satisfy the identity aspect of 
the I-9 form to compliant State driver's licenses and a U.S. 
passport or appropriately endorsed foreign passport.
    Two, there must be an improvement in the security of 
documents and the processes that satisfy the work authorization 
aspect of the I-9 form, principally the Social Security account 
number database and card. I respectfully suggest to this 
Subcommittee that such a task, though fraught with political 
turmoil, is worthy of your time and effort.
    The Department of Homeland Security can help on this aspect 
by improving the effectiveness of the Basic Pilot Program, and 
by utilizing it on a much larger scale. To improve its 
effectiveness, DHS must standardize its indicators that someone 
has stolen the identity of the proper holder of the account 
number, and it must then create a reliable process when 
identify theft appears likely, so that, one, employers using 
Basic Pilot are alerted, but importantly, two, that the 
individual submitting the number to satisfy the I-9 form is 
given a chance to rectify the problem before being denied 
employment. I also believe DHS must engage in a dedicated 
program of recruitment of employers into the voluntary basic 
pilot program.
    Finally, my third recommendation is that DHS and DOJ should 
significantly increase the investigation and prosecution of 
document and identity fraud, and I can discuss some details of 
that if you would like during the question period. For the most 
part, the enemy of employer sanctions is not the unscrupulous 
employer, of which admittedly there are some, but rather the 
false documents vendors and identity thieves that seek to 
defeat the entire employer sanctions system.
    Thank you very much
    [The prepared statement of Mr. Hampe follows:]

                    Prepared Statement of Carl Hampe

    Mr. Chairman, Ranking Member Lee, and Members of the Subcommittee:
    Thank you for this opportunity to provide an historical perspective 
on the employer sanctions program. In summary, I believe employer 
sanctions are a common-sense immigration law enforcement tool that 
should be a component of any comprehensive regime to detect and deter 
unauthorized immigration. Implementation of this program in the United 
States, however, has not had its desired effect for a variety of 
reasons. I will therefore describe the history and purpose of the 
employer sanctions regime, discuss recent changes and pilot programs, 
and make some recommendations for increasing their effectiveness.

                  I. PRE-ENACTMENT HISTORY AND PURPOSE

    I first became aware of the employer sanctions proposal when I 
began work in 1983 as a staff member of the Immigration Subcommittee of 
the Senate Judiciary Committee. After the enactment of employer 
sanctions in the Immigration Reform and Control Act (IRCA) of 1986, I 
and other subcommittee staff worked closely with then-INS Commissioner 
Alan Nelson and his colleagues on the program's regulatory 
implementation. While at the U.S. Department of Justice in the early 
1990's, I worked with INS officials on numerous implementation issues 
and proposed legislative changes. Since entering private practice in 
1993, I have represented a number of companies in obtaining amendments 
to the employer sanctions statute, conducting internal I-9 audits, and 
responding to sanctions-based enforcement actions by the Service.
    When championing the enactment of IRCA, Former Senator Alan Simpson 
(R-WY) used to observe: ``Upon becoming chairman of the Senate 
Immigration Subcommittee, I was astounded to learn that it was illegal 
to be an illegal alien, but it was not illegal for a U.S. employer to 
hire one.''
    The core logic of this statement remains the most compelling basis 
for a U.S. employer sanctions law. And employer sanctions indeed were 
the central feature of the report credited with convincing Congress 
that it was time to eliminate the ``Texas Proviso''--the Final Report 
of the Select Commission on Immigration Refugee Policy (1981). That 
bipartisan commission, chaired by Father Theodore Hesburgh, recommended 
that the United States close the ``back door'' to illegal immigration 
in order to keep the ``front door'' to legal immigration open. Its 
central proposal to amend current law was to impose civil penalties on 
employers who knowingly hired unauthorized aliens. The 16-member 
commission (which included four Carter Administration cabinet members, 
eight members of Congress, and four members of the public) had little 
trouble with this proposal, recommending 14-2 that the law be amended 
to include this rule. Citing the availability of U.S. jobs as the 
central ``pull factor'' in the illegal immigration equation, the Select 
Commission recommended removing the magnet of the U.S. employment 
market as central to discouraging unlawful immigration. While strong 
border enforcement mechanisms were undoubtedly important, many illegal 
aliens obtain lawful access to the United States through temporary 
visas, such as visitor and student status, and then overstay those 
visas to work and live in the United States. Border enforcement alone 
will never stop this form of unlawful immigration, but employer 
sanctions certainly could.
    The critical vote cast by the Select Commission was its narrow 
recommendation (8-7) of a ``more reliable'' mechanism to identify 
persons authorized to work in the United States, such as a counterfeit-
resistant social security card. The policy logic of the proposal was 
strong: (1) in order for an employer to ``know'' whether he or she was 
knowingly hiring an unauthorized alien, a simple verification procedure 
should be established; (2) U.S. employers should not be expected to be 
fraudulent documents experts, (3) given the insecurity of current 
documents, a more secure work authorization system was necessary to 
avoid creating a gaping loophole in employer sanctions. The politics of 
the final element of the proposal--a more secure worker verification 
system--turned out to be critical.
    Senators Alan Simpson and Congressman Ron Mazzoli (D-KY) introduced 
a relatively faithful codification of the Select Commission's 
recommendations on employer sanctions in 1982. The measure passed the 
Senate by an overwhelming vote, but was defeated in the final days of 
session in the House when an insurmountable number of amendments was 
proposed by bill opponents and the House leadership provided an open 
rule on the bill. The Senate-passed version of IRCA in 1982 relied on 
existing documents to prove work authorization, but required the 
Administration to implement a more secure worker verification system by 
a date certain. The legislation did not specify the particular method 
of security, but gave standards that the new system must meet. It also 
contained detailed protections against abuse of the database that might 
be created and required protection of the privacy of individuals 
contained in the database. If a secure card was the result of the more 
secure system, such a card could not be required to be carried on one's 
person.
    The Simpson-Mazzoli bill would be considered in two additional 
Congresses before being enacted in 1986. In each subsequent Congress, 
opponents of a more secure worker verification system watered down this 
important component of the employer sanctions regime. Senator Simpson 
responded to Democratic and Republican critics of the secure 
verification system that, ``there is no slippery slope to a national 
I.D. card or national I.D. system in this bill. This bill prohibits it. 
If a national I.D. system emerges, it will only occur because we have 
taken deliberate, specific steps toward creating it. I will oppose 
those steps.''
    The Immigration Reform and Control Act was enacted with an employer 
sanctions system that relied on current, admittedly insecure, 
documents. Reports were required of the Administration on how to make 
the system more secure. Ironically, the final version of IRCA contained 
detailed prohibitions on the creation of a more secure system--most in 
the form of ``report to Congress and wait'' requirements which are 
embedded within INA Section 274A. The Achilles Heal of employer 
sanctions--its insecure employment verification system--has its roots 
in Congress deciding to rely solely on a vast of array of insecure 
documents, issued by various federal, state and local governments, to 
determine U.S. work authorization.

                     II. POST-ENACTMENT EXPERIENCE

    Once enacted, the legacy Immigration and Naturalization Service 
took an imperfect statutory system and implemented it poorly. After a 
reasonably well-run public education and implementation program, the 
INS lost some political capital with U.S. employers by focusing on 
technical paperwork violations rather than on substantive violations of 
the ban on knowingly hiring unauthorized aliens. Congress later reduced 
the grounds for paperwork violations in the 1996 Act.
    The INS also failed to correct another early problem--the excessive 
number of documents that could satisfy the I-9 requirement. This 
situation was both confusing to employers and an incentive for the 
counterfeiting of the most easily circumvented documents. Congress 
reacted again in the 1996 Act by instructing the INS to reduce the 
number of documents that satisfy the I-9 form, but there were 
significant delays in that process and today the result is of uncertain 
value.
    Congress continued to receive support from immigration policy 
experts during this period on the essential role of employer sanctions 
in deterring illegal immigration. In 1994, the Commission on 
Immigration Reform (the ``Jordan Commission'') issued a report entitled 
U.S. Immigration Policy: Restoring Credibility, which addressed both 
employer sanctions and worker verification systems. As the late Barbara 
Jordan testified before the House Appropriations Committee in 1995:

        Our second set of recommendations would reduce the magnet that 
        jobs currently present for illegal immigration. We have 
        concluded that illegal immigrants come primarily for 
        employment. The Commission believes that we need to enhance our 
        enforcement of both employer sanctions and labor standards. 
        But, to make employer sanctions work, we must improve the means 
        by which employers verify the work authorization of new 
        employees. The Commission believes the most promising option is 
        a computerized system for determining if a social security 
        number is valid and has been issued to someone authorized to 
        work in the United States. We are pleased that the 
        Administration has endorsed our recommendations in this area, 
        and we look forward to working with INS and the Social Security 
        Administration on the design of pilot programs that will phase 
        in and test this new verification approach. I urge this 
        committee to provide the funding needed to develop the 
        computerized system and implement the pilot programs.

    One encouraging aspect of IRCA was the strong desire by most U.S. 
employers to comply with the I-9 requirement. I have represented a 
number of medium-sized and large employers in internal I-9 audits, and 
in their responses to agency audits or investigations, and I have been 
impressed by the near universal acknowledgement that employers should 
not knowingly hire illegal aliens and that employer participation in 
deterring unlawful employment is a reasonable concept.
    Unfortunately, the INS failed to capitalize on this attitude, 
treating many employers as adversaries rather than partners in 
deterring unauthorized employment. One example of this missed 
opportunity was the ``Basic Pilot'' voluntary employer verification 
system, enacted as part of the 1996 Act and inspired in part by the 
Jordan Commission recommendations. Under this program, participating 
employers were given computer-access to a portion of the INS alien-
number and Social Security Administration social security account 
number databases. New employees would have to submit at least one of 
these numbers in order to satisfy the I-9 requirement, and the employer 
would have prompt feedback on whether the employment applicant was 
submitting a valid number, or a number that matched the name of the 
person to whom the number was issued. The meatpacking industry widely 
adopted participation in Basic Pilot, even though it was only available 
to companies with operations in at least one of only seven states, and 
the companies in this industry were initially satisfied with the 
additional capabilities and protections provided by the program.
    Indeed, the Basic Pilot program initially fulfilled two of the 
early promises of employer sanctions: to reduce the lure of U.S. 
employment to unauthorized aliens, and to reduce the need for 
immigration authorities to ``raid'' employer work sites. Changing 
worksite enforcement to primarily an auditing function, or to an 
electronic verification process, was a principal objective of the early 
proponents of employer sanctions. Unfortunately, the ``good times'' 
under Basic Pilot were short-lived. When it became clear to the 
unauthorized alien community that using another individual's valid 
social security number would be detected by Basic Pilot, the response 
was to engage in a higher level of fraud: to assume the identity of 
someone else.
    In the late 1990's, ``true identity fraud'' became the greatest 
threat to users of the Basic Pilot program. When the INS began worksite 
enforcement actions at the plants of meatpacking companies 
participating in Basic Pilot, the employers in this industry asked for 
access to the database of employees whom the INS suspected of 
committing identity fraud, so that the employers could deny them 
employment. Unwisely, the INS declined to provide this information and 
instead launched the ill-considered work site enforcement program known 
first as ``Operation Prime Beef,'' which it later renamed ``Operation 
Vanguard.'' The INS made ``work site visits'' to interview employees on 
their ``identity fraud'' list, and most employees on this list failed 
to show up and left their current employers--for other employers or 
other industries. Rather than deter unlawful immigrants from entering 
the United States, the INS had simply succeeded in chasing the 
unauthorized alien from one U.S employer to another--while alienating 
an employer community that had demonstrated its commitment to voluntary 
compliance.
    Finally, all evidence points to a comparatively low level of 
attention paid to investigating and prosecuting document fraud. One 
critical example is the INS decision to enter into a settlement 
agreement in which it agreed to cease issuing civil penalties for 
document fraud under INA Section 274C, added in the 1990 Act to enhance 
document-fraud enforcement. On the criminal side, there is scant 
evidence today of a coherent, coordinated effort between ICE and U.S. 
Attorney's Offices to put the time, energy and resources necessary into 
detecting, indicting and prosecuting persons involved in the 
manufacture and sale of fraudulent documents.

              III. FUTURE PROSPECTS FOR EMPLOYER SANCTIONS

    Some observers believed that the tragedy of 9/11 would change the 
political aversion to a more secure worker verification system. That 
has proven to be belatedly but partially true, in that Congress 
recently enacted and the President signed the REAL ID Act, the first 
significant reform of the employment authorization system since the 
Basic Pilot Program of 1996, and the first mandatory change since 
IRCA's enactment in 1986.
    The REAL ID legislation requires States to meet certain minimum 
procedural requirements (such as confirming the identity and lawful 
immigration status of the applicant) before issuing a driver's license, 
and to satisfy other minimum security requirements to ensure that the 
cards issued are counterfeit resistant. Given that State Drivers' 
licenses are one of the principal documents used to establish identity 
on the employer sanctions I-9 form, this is a significant step toward 
addressing the insecure-documents loophole in employer sanctions. But 
substantial challenges remain.
    First, the States must implement the REAL ID standards in a prompt 
and effective fashion. The technology exists to do so, but it is 
unclear whether the political will in the 51 U.S. jurisdictions is also 
present. Second, the I-9 Form also asks for evidence of work 
authorization, which a State Drivers' license does not demonstrate. The 
common document for demonstrating work authorization is a social 
security card. (A U.S. passport would satisfy both aspects of the I-9 
requirement.) The social security card is today easily counterfeited, 
and we know from the Operation Vanguard experience that identity theft 
is a common scheme that can defeat use of the social security account 
number to deter unauthorized employment.
    So what should be done in response? One option would be to repeal 
employer sanctions because of their ineffectiveness. I believe such a 
response would be very unwise, as it would send a message to the 
world's potential unauthorized immigrants that the United States no 
longer will discourage illegal immigration--as long as one can simply 
slip across the border or present enough fraudulent documents to a 
consular officer to obtain a visitor's visa. However large the 
unauthorized immigration problem is now, repeal of employer sanctions 
at this point would certainly make the problem far worse.
    What then are the realistic reforms to employer sanctions that 
Congress and the Administration should consider?
    (1) Limit the number of documents that satisfy the ``identity'' 
aspect of the I-9 Form to: (A) a State Driver's license that conforms 
to the REAL ID law's specifications (allowing for a reasonable 
transition period), and (B) a U.S. Passport. Given the 1996 Act 
amendments, the Department of Homeland Security should have the 
authority to achieve this objective by regulation.
    (2) Address the problem of insecure documents that satisfy the 
``work authorization'' aspect of the I-9 Form--principally the social 
security account number database and card. Congress can help by 
considering legislated changes to the security of social security 
cards, and by revisiting the onerous ``report and wait'' requirements 
imposed on revisions to this card in INA Section 274A. There is 
legislation pending now in Congress to begin this process, and I 
respectfully suggest to this Subcommittee that such a task--though 
fraught with political turmoil--is worthy of your time and effort.
    The Department of Homeland Security can help by improving the 
effectiveness of the Basic Pilot program and utilizing it on a much 
larger scale. To improve its effectiveness, DHS must standardize its 
indicators that someone has stolen the identity of the proper holder of 
the account number. It must then create a reliable process when 
identity theft appears likely, so that employers using Basic Pilot are 
alerted and the individual submitting the number to satisfy the I-9 
Form is given a chance to rectify the problem before being denied 
employment. I was told in 2000 and 2001 that such an improvement to the 
Basic Pilot system was not possible, but I have not pursued the matter 
since. This would be a good question to ask of DHS officials today.
    To expand employer utilization of Basic Pilot, DHS must engage in a 
dedicated program of employer education and recruitment into the 
program, and work as true partners (rather than as adversaries) with 
the employers and employer organizations that participate. A recent 
amendment to the Basic Pilot program makes it available in all 50 
states. The Administration should use this tool to increase employer 
participation by a substantial degree.
    (3) Increase the investigation and prosecution of document and 
identity fraud.
    A significant increase in ICE and U.S. Attorney's Office resources 
should be dedicated to prosecuting documents vendors, document 
smuggling rings, and those who facilitate the theft of the identity of 
others, through the social security card or any other common document. 
This renewed focus needs to come ``from the top''--from the Secretary 
of Homeland Security and the Attorney General. It is simply 
unacceptable in light of current terrorist threats for the United 
States to allow its principal national documents to be subject to such 
widespread fraud. While Congress can review the sufficiency of current 
Sentencing Guidelines for these offenses, I believe its time is better 
spent dedicating appropriated funds to this mission and then conducting 
the oversight afterward to ensure that the enforcement initiatives 
occur. Even if the social security card remains an insecure document 
for a number of years to come, the goal of a concentrated investigation 
and prosecution effort should be to raise the black-market price of a 
fraudulent social security card or of a stolen identity linked to such 
a card to $10,000 or more. If that result is achieved, the incidence of 
document and identity fraud will decline sharply, and the benefits will 
inure not only to the employer sanctions system but to overall U.S. 
national security as well.
    In addition, the late 1990's settlement agreement that ended the 
use of Section 274C's civil fines for document fraud should be re-
examined, with a view toward its repeal. Every available tool, civil 
and criminal, should be used to combat those who would attempt to 
profit from the insecurity of our current documents.
    (4) ICE should dedicate additional resources to unauthorized 
employment. Until the recent supplemental appropriations bill was 
enacted, ICE was operating under a hiring freeze. It now needs to focus 
on the integrity of the employer sanctions system. My experience 
representing U.S. companies is that worksite enforcement actions are, 
with rare exceptions, not worth the expenditure of the resources. A 
fair, consistent system of I-9 auditing would help reinforce most 
employers' current compliance with this requirement, and would also 
develop leads on pockets of noncompliance. And as mentioned above, 
document and identity fraud should be targeted with an all-out effort, 
at both the criminal and civil level. The effort should be undertaken 
with the knowledge that most employers comply or desire to do so, and 
that they should be partners, not adversaries, in the process.

                              CONCLUSION.

    Employer sanctions is an important and reasonable enforcement 
regime to deter unauthorized immigration to the United States. The 
difficult policy questions arise when one attempts to implement it 
effectively. It has lost any enforcement priority that it ever might 
have had, and this fact should be recognized and corrected by the 
Departments of Homeland Security and Justice. I believe this hearing is 
a good step in encouraging such a change in attitude, and I commend you 
for holding it. I also thank you for inviting me to contribute my views 
on the topic and stand ready to answer any questions that you may have.

    Mr. Hostettler. Thank you, Mr. Hampe.
    Ms. Gordon.

   TESTIMONY OF JENNIFER GORDON, ASSOCIATE PROFESSOR OF LAW, 
                       FORDHAM LAW SCHOOL

    Ms. Gordon. Chairman Hostettler, Ranking Member Jackson Lee 
and Members of the Subcommittee, thank you for the opportunity 
to testify today.
    For the past 18 years, I have worked with low-wage 
immigrants and their employers in a context of employer 
sanctions, and from that vantage point I can say that sanctions 
have been an unequivocal failure.
    Congress had two principal goals in including employer 
sanctions in IRCA in 1986: deterring undocumented immigration, 
and protecting the jobs of U.S. workers. Sanctions have done 
neither.
    Since 1986, the undocumented population in the United 
States has grown from an estimated 5 million then to an 
estimated 10 to 12 million today. There is no clearer evidence 
that sanctions are no deterrent to undocumented immigrants or 
their employers.
    With regard to the second goal, ironically, sanctions have 
not only failed to protect the working conditions of U.S. 
citizens and legal immigrants, but have contributed 
significantly to undermining them by handing a trump card to 
those employers who seek to maintain a vulnerable and 
exploitable workforce. Such an employer may simply ignore the 
requirement that undocumented workers complete I-9 forms at the 
time of hire, or may fill them out in a pro forma way. But if 
those workers complain about any aspect of their working 
conditions--wages below the legal minimum, no protection from 
hazardous chemicals, or a ban on discussion of unions in the 
workplace--they are suddenly told that unless they can provide 
the documents to fill out the I-9 form they will be fired.
    The fear this generates is intensified by the doubt 
employer sanctions have cast on whether employers will be 
penalized when they violate basic workplace laws with regard to 
undocumented employees.
    At the time IRCA passed, it was clear in most States and 
Federal circuits that minimum wage, health and safety and anti-
discrimination laws, as well as the National Labor Relations 
Act, applied to workers who were illegally present in the 
country. IRCA's own legislative history reaffirms the 
importance of this coverage.
    Although almost all courts and agencies continue to 
maintain that undocumented immigrants are protected by 
workplace statutes, in 2002 the Supreme Court in its Hoffman 
Plastics decision, insulated employers who fired undocumented 
employees in violation of the NLRA from monetary penalties. The 
Court cited Congress's passage of employer sanctions as the 
primary reason for its holding.
    Although Hoffman was technically limited in scope, 
employers have used it repeatedly to intimidate those few 
undocumented workers who still dare to report sub-minimum wages 
and to demand better working conditions.
    The effect of this dynamic is the exact inverse of what 
Congress intended. Through sanctions undocumented immigrants 
have been pushed further underground, rendered ever more 
uncertain about whether they have rights, and ever more 
terrified to claim any of the rights to which they are aware 
they are entitled. Basic workplace rights are guaranteed to 
undocumented workers under U.S. law for the precise reason that 
to deny them those rights would make them unfairly attractive 
to employers, thus undercutting U.S. workers. But unless 
undocumented workers know that reporting violations will not 
put their jobs at risk and subject them to potential 
deportation, they will remain silent. Without their 
participation, lawbreakers in the underground economy are hard 
to detect and nearly impossible to convict.
    Employer sanctions have harmed U.S. workers in another way. 
Employers in immigrant heavy industries, wishing to avoid 
liability for sanctions, have shifted en masse to 
subcontracting in the wake of IRCA. Now predominant in such 
industries as agriculture, janitorial, landscaping and 
construction, subcontracting exerts downward pressure on wages 
in two ways. Contracts are put out to bid, encouraging 
contractors to offer the lowest possible price, which 
translates directly into falling wages. In addition, 
subcontracting introduces a middleman who takes a cut of the 
contract, further lowering the wages that workers receive. And 
of course, once subcontracting becomes the standard arrangement 
in any industry, its impact on wages affects all workers, 
documented or not, in that industry. Far from protecting U.S. 
workers, then employer, sanctions lower their wages and 
undercut their efforts to obtain jobs and improve working 
conditions.
    Instead of sanctions we need two things. One is an 
unequivocal statement from Congress that employers will be 
penalized for violations of workplace protections independent 
of the immigration status of the victim. The other is a new 
commitment to intensive and strategically targeted government 
enforcement of minimum wage and health and safety laws in 
industries and geographic areas with high concentrations of 
undocumented workers. Only through this sort of approach do we 
have a hope of addressing the exploitive working conditions and 
unfair competition that undermine the work opportunities, 
health and wages of workers throughout our Nation.
    Thank you, and I welcome your questions.
    [The prepared statement of Ms. Gordon follows:]

                 Prepared Statement of Jennifer Gordon

    Chairman Hostettler, Ranking Member Jackson Lee, and Members of the 
Subcommittee:
    Thank you for the opportunity to testify regarding employer 
sanctions. I appear before you today as someone who has worked on 
issues surrounding undocumented immigrant work and employer sanctions 
since the program's very inception. In 1987, my first job out of 
college was to educate Boston employers and employees about their 
responsibilities and rights under the just-implemented employer 
sanctions provisions of the Immigration Reform and Control Act. In that 
capacity, I spent two years visiting over 100 Boston-area employers as 
they struggled to comply with the new provisions. I then went on to 
Harvard Law School, and upon graduation founded the Workplace Project, 
a New York organization that among other goals seeks to enforce basic 
wage and safety standards in immigrant workplaces. My recent book, 
Suburban Sweatshops, explores the re-emergence of sweatshop work on the 
United States and discusses strategies to eradicate it. I am now on the 
faculty of Fordham Law School in New York, specializing in immigration 
and labor law.
    When Congress included employer sanctions in the Immigration Reform 
and Control Act of 1986, it had two principal goals: deterring 
undocumented immigration and protecting the jobs and wage levels of 
U.S. workers. After nineteen years, sanctions have proven an 
unequivocal failure on both fronts. Today, the undocumented population 
has grown considerably. And, ironically, sanctions have not only failed 
to protect the working conditions of US citizens and legal immigrants, 
but have contributed significantly to undermining them. Furthermore, 
sanctions have created a burgeoning black market in false documents, 
increased discrimination against legal immigrants and U.S. citizens, 
and created an undue burden for employers, who have been deputized 
against their will as agents of the Department of Homeland Security.
    The increase in undocumented immigration to the United States to 
its present level despite employer sanctions speaks for itself. In 
1986, at the time employer sanctions went into effect, approximately 5 
million undocumented immigrants resided in the United States. Today, 
the best estimate is that this country is home to between 10 and 12 
million undocumented immigrants. There is no clearer evidence of the 
failure of sanctions to deter illegal immigration.
    What requires more explanation is the dynamic that has rendered 
employer sanctions the source of more, not less, competition for jobs 
between legal workers and their undocumented counterparts. While 
sanctions have put a considerable burden on responsible businesses, who 
according to an INS study spend over 13 million hours per year to 
comply with this law, it has handed a trump card to those employers who 
seek to maintain a vulnerable and exploitable workforce. An 
unprincipled employer wishing to hire undocumented workers may simply 
ignore the requirement that workers complete I-9 forms, or may ask new 
employees to fill them out but pay little attention to the quality and 
consistency of the documents offered. If those workers complain about 
any aspect of their working conditions, however--if they ask that their 
wages be raised to the legal minimum, or request gloves as protection 
from hazardous chemicals, or express an interest in joining a union, 
all of which are rights guaranteed to them under U.S. law for the 
precise reason that to deny them those rights would make them unfairly 
attractive to employers, thus undercutting U.S. workers--the employer 
remembers employer sanctions. The workers who have stepped forward are 
suddenly told that unless they can provide documents to fulfill the I-9 
form's requirements, they will be fired.
    This cycle is intensified by the doubt employer sanctions have cast 
on whether employers will be penalized when they violate basic 
workplace laws with regard to undocumented immigrants. At the time IRCA 
passed, it was clear in most states and federal circuits that minimum 
wage, health and safety and anti-discrimination laws, as well as the 
NLRA, applied to workers who were illegally present in the country. And 
the legislative history of IRCA states explicitly that ``[i]t is not 
the intention of the Committee that the employer sanctions provisions 
of the bill be used to undermine or diminish in any way labor 
protections in existing law. . . . As the Supreme Court observed in 
Sure-Tan, Inc. v. NLRB, 467 U.S. 833 (1984), application of the NLRA 
`helps to assure that the wages and employment conditions of lawful 
residents are not adversely affected by the competition of illegal 
alien employees who are not subject to standard terms of employment.' 
'' Although most courts and agencies continue to maintain that 
undocumented immigrants are covered by workplace statutes, in 2002 the 
Supreme Court issued its Hoffman Plastics decision, which confirmed 
that undocumented workers were covered under the National Labor 
Relations Act but insulated employers who fired undocumented employees 
in violation of the Act from monetary penalties. The Court cited 
Congress's passage of employer sanctions as the primary reason for its 
change of heart after Sure-Tan. Although the Hoffman holding was 
limited in scope, employers have used it repeatedly to intimidate those 
few undocumented workers who still dare to report sub-minimum wages and 
to demand better working conditions.
    The effect of this dynamic is the exact inverse of what Congress 
intended. Undocumented immigrants have been pushed further underground, 
rendered ever more uncertain about whether they have rights and ever 
more terrified to claim any of the rights to which they are aware they 
are entitled. These rights are not just a matter of human dignity, 
although they are certainly that. They are the only force restraining a 
race to the bottom in which undocumented immigrants can be had for any 
price and under any conditions, thus making them a much more attractive 
workforce for unscrupulous employers, foreclosing job opportunities for 
U.S. citizens and legal residents, and dragging down wages and working 
conditions for all. If our minimum wage laws are to have any meaning at 
all, they must be reinforced where they are in peril, in immigrant-
heavy workplaces. But unless undocumented workers know that reporting 
violations will not put their jobs at risk and subject them to 
potential deportation, they will remain silent. Without their 
participation, lawbreakers in the underground economy are hard to 
detect and nearly impossible to convict.
    This argument becomes clearer by analogy to other law enforcement 
situations. When government authorities need the cooperation of 
undocumented immigrants in times of serious threat to safety or 
national security, they make clear that those who come forward with 
information will not be reported to Immigration Control and Enforcement 
(ICE). Thus, when the Beltway sniper was terrorizing the DC suburbs in 
2002, Maryland Chief of Police Charles Moose made a public promise that 
that any undocumented immigrant who came forward with information about 
the sniper would not be turned over to the INS. Similarly, recognizing 
that crime prosecution and prevention will only be successful if all 
city residents feel comfortable working with the police, the New York 
City Police Department and numerous others around the country have 
declared that they will not ask questions about immigration status of a 
witness or victim of a crime. In the same way, once we recognize that 
effective enforcement of basic workplace rights for all employees is 
the lynchpin in any strategy to protect the wages and working 
conditions of U.S. workers, it becomes clear that immigration 
enforcement must be taken out of the workplace.
    Social scientist Douglas Massey has documented additional negative 
labor market effects of employer sanctions. He notes that employers in 
sectors characterized by high levels of undocumented employment--such 
as agriculture, janitorial, landscaping and construction--shifted to 
subcontracting arrangements in the wake of IRCA in order to insulate 
themselves from the consequences of hiring unauthorized workers. 
Subcontracting exerts downward pressure on wages in two ways. Contracts 
are put out to bid, encouraging contractors to offer the lowest 
possible price in order to prevail. Since all of these are labor-
intensive industries, falling contract prices translate directly into 
falling wages. In addition, subcontracting introduces a middleman where 
once employment was direct, and the middleman takes a cut of the 
contract. This cut further lowers the wages that workers receive. Of 
course, once subcontracting becomes that standard arrangement in a 
particular industry, it affects all workers in that industry, whether 
documented or not. Thus, increased subcontracting--a direct consequence 
of employer sanctions--has decreased the wages of U.S. workers.
    The idea of repealing employer sanctions is politically unpopular 
at the moment. On all sides, the current debate in Washington over 
immigration reform assumes that sanctions will either continue in place 
or be strengthened, for example through the addition of harsher 
penalties or a national i.d. card. To continue on this road is to trade 
short-term political gain for long-term disaster. More enforcement of 
the existing law, or the intensification of documentation requirements 
for workers or punishment for employers, will only increase the power 
of sanctions to drive undocumented workers underground. The problem 
with this law is not a matter of a few technical glitches amenable to a 
legislative fix. The premise on which sanctions are based is 
fundamentally flawed.
    Far from protecting U.S. workers, employer sanctions lower their 
wages and undercut their efforts to improve working conditions. Instead 
of sanctions, we need two things. One is an unequivocal statement from 
Congress that all workplace protections apply equally to documented and 
undocumented workers. The Supreme Court's 2002 decision in Hoffman 
Plastics should be corrected through legislation that explicitly 
renders employers equally liable for the failure to obey the Fair Labor 
Standards Act, the Occupational Safety and Health Act, the National 
Labor Relations Act, and all of the other bedrock pieces of workplace 
legislation, independent of the victim's immigration status. The other 
is a new commitment to intensive and strategically targeted government 
enforcement of minimum wage and health and safety laws in industries 
and geographic areas with high concentrations of undocumented workers. 
Only through such an approach do we have the hope of addressing the 
exploitative working conditions and unfair competition that undermine 
the work opportunities, health and wages of workers throughout our 
nation.

    Mr. Hostettler. Thank you, Ms. Gordon.
    The Subcommittee Members will now turn to questions. Mr. 
Stana, in your written testimony you revealed that an ICE 
policy memo prohibits ICE agents from engaging in worksite 
enforcement in restaurants and farms without prior approval. 
What is the basis of this policy, do you know?
    Mr. Stana. My understanding is that ICE headquarters sent 
that memo out to reinforce the idea that they wanted their 
resources focused on issues of national security. So to keep 
its agents from opening investigations in areas not connected 
to national security, they set up the critical infrastructure 
program, which focused attention to places like airports, 
nuclear power plants and so on. Locations can, however, ask for 
and get exemptions from that memo. We visited 12 locations in 
the course of our work, and in those 12 locations combined, we 
only found 5 or 6 exemptions.
    So what it has done, it has focused resources on the areas 
of priority in their strategic plan, but it has discouraged 
workforce enforcement.
    Mr. Hostettler. This notion of the strategic plan and the 
place that employer sanctions worksite enforcement plays in it 
is a common theme. How has the Department of Homeland Security 
been doing with regard to critical infrastructure issues?
    Mr. Stana. Well, there are two major programs that I am 
aware of, Tarmac and Glow Worm, and in Operation Tarmac they 
have identified about 1,000 illegal aliens working in airports. 
They treat this as a worksite enforcement action in that if 
they are undocumented they will take enforcement actions which 
include possible deportation. So it has had some effect that 
way, but perhaps not as many terrorists as they thought they 
might identify have been acted upon.
    Mr. Hostettler. Would you say that the dedication of 
resources and the return on the investment is substantial?
    Mr. Stana. Well, I think there is a policy decision here 
that ICE and DHS have made, that they have a limited number of 
resources and they are going to put them in the areas where 
they feel it is most prudent to put them. I do not think any of 
us want another 9/11. However, on the other side of that, what 
it has done is it has taken resources away from worksite 
enforcement. In the late 1990's, we had 240 roughly FTEs 
devoted to this. Now there is--well, this year there is about 
50, 65, depending on how you count them. So it has had an 
impact on ICE's ability to undertake worksite enforcement 
activity.
    Mr. Hostettler. I guess my question is, more clearly 
stated, with the concentration of resources to the notion of 
critical infrastructure worksite enforcement, are we finding a 
lot of problems in critical infrastructure?
    Mr. Stana. Well, in fact, there was an article in today's 
newspaper and on the news about a nuclear facility, I believe 
it was a weapons manufacturing facility, where the Department 
of Energy IG found through its checks there were 16 illegal 
aliens identified, and that the normal I-9 process had not 
identified.
    So there is cause for focusing on these things, but it 
hasn't found that many aliens, and it's usually aliens working 
in areas where aliens are working in other areas, nonsensitive, 
such as construction and food service and whatnot.
    Mr. Hostettler. Very good, thank you.
    Mr. Jeffrey, do you think that if there were credible 
deterrents in worksite enforcement, there would be a widespread 
reduction in illegal immigration? And if that is the case, if 
ICE concentrates on worksite enforcement and creates 
deterrents, many of its other problems with immigration 
enforcement, such as detention bed space and deportation might 
be drastically reduced, is that not correct?
    Mr. Jeffrey. I think in the long run I think there will be 
a deterrent effect. If you look at that list from the October 
report from the Social Security Administration Inspector 
General, the top 100 employers that had filed the worst W-2s, 
and you assume there's some correlation between those bad W-2s 
and the hiring of illegal aliens, which of course is something 
that hasn't been demonstrated because DHS apparently is not 
investigating these companies. I think you see that year after 
year after year you have certain employers that are hiring 
large numbers of people that they can't identify correctly by 
Social Security number. These have to be major companies if you 
look at the size of their payroll. That Illinois company paid 
more than $524 million to employees that it could not identify 
to the IRS or Social Security Administration by Social Security 
number for 5 years.
    It seems to me if a company like that, assuming that there 
is some hiring of illegal aliens there, were publicly exposed 
and were penalized that the public pressure on the corporate 
managers would force them to stop the practices that have led 
to the filing of the bad W-2s. If in fact it is the hiring of 
illegal aliens, those jobs will dry up. I think if you do that 
in a fairly focused manner, the message will get out that the 
jobs magnet is closing down in the United States.
    Mr. Hostettler. Thank you, Mr. Jeffrey.
    The gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. Thank you very much.
    I would like to pursue the line of questioning, Mr. Stana, 
on this whole issue of resources. You know, we have had a 
battle about 200 versus 800, 300 versus 800. The 9/11 
Commission recommended I believe 800 ICE officers a year for 
the next 5 years. There are those of us, and many on this 
Committee, that have submitted amendments and continue to push 
and work for the higher numbers of ICE officers as well as 
others who are part of immigration enforcement as well as 
immigration services.
    So just again have me understand the breakdown of resources 
as relates to the large threat, the large concern of terrorism. 
And again, not to be redundant, you know, I do not equate 
immigration to terrorism, so I think the work of the Homeland 
Security Department, of which I am a Member of the Homeland 
Security Committee, really should be distinguished or 
distinguishable fighting terrorism versus the concern about 
immigration, whether it be legal or illegal.
    So are you suggesting that with the numbers we have now--
and my remarks earlier indicated that we have not prioritized 
work as it relates to employer sanctions or enforcement. Is 
that what you are saying is a clear problem that we face today?
    Mr. Stana. Let me say this, that in almost every measure 
worksite enforcement is at about the bottom of the priority 
scale. In terms of number of agents devoted to the activity, 
it's near the bottom. In terms of detention priority it's near 
the bottom.
    We have testified, I have testified in the past that we 
need to have a more balanced effort between border enforcement 
and interior enforcement, and there are a number of people we 
have put over the years on the line of scrimmage, so to speak, 
on the border, less so in the interior.
    Let me also say though that in the context of worksite 
enforcement, simply putting another 100 or 200 or 300 agents on 
this likely would not make the major dent in the problem that 
having an effective employment authorization verification 
system would, and it might even be less resource intense.
    Ms. Jackson Lee. Now, when you say that, would that mean 
that the individual comes with better documents and the 
employer still makes the determination, or would we have a 
central pooling place for people to funnel through, and then 
say these are available for hiring?
    Mr. Stana. There are a number of different models 
available, but what would happen is, is that the prospective 
employee or the employee would present documents to the 
employer stating their eligibility to work, and there are a 
number of documents that they can do that with now that would 
be pruned back. But this information would be sent to central 
databases at DHS and SSA. If it came back that the person was 
authorized to work, the employer would not have a worry of 
whether they are hiring illegal workers, and a sanctions regime 
could then reliably take place. If a person then knowingly 
hires someone not authorized, the ICE investigators would have 
a much better case to make for knowingly hiring.
    Ms. Jackson Lee. Let me pose questions to Mr. Hampe and Ms. 
Gordon, and then I will listen to your answers.
    I am fascinated, Mr. Hampe, with your comments about the 
actual document fraud creator, and explore that a little bit 
more because I believe that that is the right track, and I said 
I would listed today for themes for legislative response, and I 
think that that is going in the direction of where we might go 
on going after those who are creating the documents, even 
though we might come up with a system of better documents.
    And, Ms. Gordon, brilliance on your part with respect to 
whether or not we even enforce, as we should for Americans, 
workplace protections, particularly the hourly wage, the 
minimum wage, et cetera, which unfortunately we have such 
uneven circumstances in different states. But would you explore 
again as well the value of really focusing on workplace 
conditions, because it is negative not only for those who are 
working undocumented, but it is also a negative atmosphere for 
those who are either documented and/or Americans. The other 
thing is the threat against documented workers if we do a full 
sweep of purging when you begin to talk about employer 
sanctions.
    Mr. Hampe, if you could talk more about how we would go and 
explore this, if you will, prosecuting the fraudulent document 
maker. And I would like to acknowledge that my colleague, 
Congresswoman Maxine Waters, has joined me this afternoon.
    Mr. Hampe. Yes, Congresswoman. The question you asked does 
go to the heart of the concept behind employer sanctions, which 
is that employers would review documents that theoretically are 
reasonably reliable, and that therefore the system becomes 
self-enforcing, and one needn't rely on constant workplace-
worksite actions in order to effectively enforce the workplace 
ban. Even if Congress continues to grapple for a number of 
years, as it may well, on making current documents more secure, 
there are initiatives that can be taken by Congress and by the 
Executive Branch to make it more difficult for documents 
vendors to be effective.
    A targeted prosecution--investigation and prosecution 
campaign, relying on the cooperation of DOJ and DHS, a 
reduction by DHS in the number of documents that would satisfy 
the I-9 form, which has been a pending regulation for quite 
some time now, approaches such as that, which if they could, 
for example, drive up the black market price of a fraudulent 
Social Security card from however many hundreds of dollars it 
is now to, say, $10,000, then I think there would be a 
discernible reduction in the number of people who can afford to 
purchase that different identity and defeat the system. It 
wouldn't be perfect and there still would be a need to resolve 
the structural problems, but it's a good interim step.
    Ms. Gordon. Yes, thank you, Congresswoman. With regard to 
your question about workplace rights--workplace rights, and in 
particular the minimum wage, are really the only force that we 
have that is restraining a race to the bottom, a race in which 
the end result is that you can have an undocumented immigrant 
at any price and under any condition. And the only way to stop 
that is to really focus on what it takes, what does it take to 
enforce the minimum wage and basic health and safety laws and 
so on in the workplace?
    And what it takes is the cooperation of the workers who 
know the harms best, and those workers are undocumented 
workers. And when you look at any law enforcement effort, 
enforcing a law that recognizes--where the agency recognizes it 
needs the cooperation of undocumented workers, what you see is 
the agency takes immigration out of the equation. So you have 
Maryland Chief of Police Charles Moose, during the time of the 
Beltway sniper, coming forward and saying, ``If any 
undocumented immigrant has information about this, you can come 
forward secure. We won't bring you to immigration.'' The same 
with police departments all around the country.
    And by the same logic, if you want to enforce workplace 
rights in the workplace--and that is the only way to protect 
U.S. workers and guarantee that the minimum wage will be 
respected--you have to take immigration enforcement out of the 
workplace first.
    Mr. Hostettler. The gentlelady's time has expired.
    Gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Stana, I was very much impressed by the chart that we 
saw on the screen a few minutes ago, and that is a part of your 
written testimony, and that is the chart that referred to the 
number of Notices of Intent to Fine. What an incredible 
commentary, unfortunately, on the current Administration and 
what would appear to be their unwillingness to enforce current 
law when it comes to employer sanctions. I had heard that there 
was not a single fine levied against an employer in 2004, 
despite the fact that there were roughly 7 million people 
employed illegally. Your chart seems to bear that out. There 
were only 3 Notices of Intent. Are you aware of any of those 
Notices of Intent actually resulting in a fine against an 
employer in 2004?
    Mr. Stana. No, I'm not, but it does take several months for 
the process to work to the point where they do get a notice to, 
or an intent to fine.
    Mr. Smith. Right. But it does sound like my information may 
well be accurate, that not a single employer was fined in 2004?
    Mr. Stana. And if you look at the chart, in fiscal '03 I 
think we had 100 and some, and those may have resulted from 
actions taken months or years before, so there was a lag time.
    Mr. Smith. Let me ask you, Mr. Stana, and also Mr. Hampe, 
what conclusions you might draw from the Government's inaction 
or unwillingness to levy fines against employers who are 
breaking the law?
    Mr. Stana. Well, I think there's a couple of things that I 
would say. First, I think there's a certain dispiritedness 
among ICE agents that when they do take worksite enforcement 
action, the actions don't result in much because fines are 
reduced in the negotiation process, or if they do take aliens 
out of the workplace there's not enough detention space and 
they're told to appear some months later and, and they find 
another job in the meantime.
    Also, I think it demonstrates to some degree a lack of 
political consensus on how to deal with this issue. One of the 
locations, one of the 12 we went to, the agent in charge told 
us that there's a rumor going around in his particular city, a 
large city, of an impending employment action on the part of 
ICE, and even though it wasn't true, he had different 
delegations calling his office, either saying, yeah, you know, 
this is--we're all behind it, or other delegations calling, 
saying, this isn't what you should be doing.
    And so in that kind of environment, without a clear signal, 
they're really not sure which way to go.
    Mr. Stana. They can always enforce the law.
    Mr. Smith. That is true.
    Mr. Hampe, what conclusions do you draw from the 
Government's inaction, and furthermore, based upon your 22 
years of experience with the issue, Do you think the 
Government's inaction is actually increasing illegal 
immigration?
    Mr. Hampe. Let me take the second one first because I think 
the answer to that is pretty clearly yes. However susceptible 
to defeat the employer sanction system is because of insecure 
documents, the fact that there is no attention being paid by 
ICE whatsoever to the entire employer sanctions regime, which 
we can include, say, I-9 audits, document fraud prosecutions 
and worksite enforcement, is certainly sending the message that 
if someone can get past the consular officer for a visa or past 
one of the U.S. borders, then they're unlikely to be detected.
    I do believe that failure to enforce--to issue Notices of 
Intents to Fine, my understanding is, given the low levels of 
ICE personnel, is that they tend to desire to go after big 
enforcement actions, which would suggest go after large 
employers. Well, the truth is today that large employers tend 
to have gotten more sophisticated, and they have an I-9 process 
that would show that they did rely on documents presented to 
them which reasonably on their face appear genuine. Therefore, 
they're not legally liable.
    So all roads lead back to the insecure document, I think in 
that sort of situation.
    Mr. Smith. Thank you, Mr. Hampe.
    Thank you, Mr. Chairman.
    Mr. Hostettler. The Chair now recognizes the gentlelady 
from California for 5 minutes.
    Ms. Waters. Thank you very much. Mr. Chairman, and Members, 
this is not as complicated as many of us would make others 
believe. The simple fact of the matter is we have illegal 
immigration, an Administration that talks out of both sides of 
its mouth, and little or no enforcement. It seems to me that 
there is no will or desire, as has been demonstrated, for 
employer sanctions. We simply do not wish to fine employers or 
to make them accountable. If we had enforcement and if we had a 
system by which to do that, we could stem the illegal 
immigration problem.
    I believe that what was demonstrated about the number of 
companies that, well, the lack of enforcement and the lack of 
sanctions, and the lack of making these employers accountable 
is just, I mean it's blatant. It's just not there. I can't 
believe that in the United States of America we can't set up 
systems by which to get this done. If you tell me that the 
documents are all left in the workplace so that employers can 
use them to basically intimidate undocumented workers when they 
began to speak out about lack of proper wages and conditions, 
then why don't we do something about that? Why don't we have a 
central place in cities or counties where the employers have to 
file these documents under penalty of perjury?
    It's not good enough to say, I thought, or I guessed, or 
it's almost. I think that we should have criteria, requirements 
that the employers could depend on, and I think that we can do 
that. So there's not a will to do this.
    If you take a look at the industries where they are most 
needed, then I think we can find out who's protecting these 
employers. We know what's happening in the agricultural 
industry. We know that this Administration attempted to come up 
with a plan by which to have workers come in, I guess at the 
height of agricultural seasons, to do the work, and I don't 
know what they planned on doing with them afterwards, sending 
them back or giving amnesty or working out some kind of program 
where if you have worked for so many years you'll be able to 
get citizenship. But we just aren't doing anything. I mean 
nothing is being done.
    So we can hold these hearings all we want, and many of the 
hearings I think are very valuable, but now, they have become 
redundant. We know what we have to do is not being done, it's 
not in the best interest of certain industries to stand the 
wave of undocumented.
    I was in one of our cities in California, spending a few 
days. I'll tell you what city it was, Palm Springs. Everybody 
who works there, you know, appears to be Latino. I don't know 
whether they're documented or undocumented. I hear the rumors 
down there about who they are or who they're not, but I suspect 
that that city does not want to do anything about illegal 
immigration or undocumented workers, because, you know, who 
would do the work for all those tourists that are coming in 
there?
    So I mean we either--we can't have it both ways. We're 
either going to have to decide that we're going to stem the 
tide with employer sanctions, and we're going to have to come 
up with a program by which some recognition is given to some 
folks who have been in, you know, the United States over a long 
period of time and have families that have grown up here. We're 
going to have to do something. We're going to have to come up 
with a program and a response that recognizes all aspects of 
the issues and try and do the right thing.
    So with that, I have no questions. They can't say anymore 
than they've already said. We know what it is, and that's it. 
So I yield back the balance of my time.
    Mr. Hostettler. I thank the gentlelady.
    The Chair now recognizes the gentleman from California, Mr. 
Issa, for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman. At my own peril, I 
associate myself with the gentlelady from California. I think 
that she's hit on something, which is this is deja vu all over 
again, again, again, again. One of our challenges here today 
is, are we hearing what the problem is? Yes. Is it the first 
time we've heard any of it? No. As a matter of fact, the only 
thing that I found surprising was Ms. Gordon's statement that 
basically in a failed system you can blame everything as 
ineffective, including employer sanctions, even though 
substantially there aren't any. I found that to be new. I don't 
happen to agree with it, but I did find it to be new.
    My question for Mr. Stana, by the way, what year did you 
graduate from Kent State?
    Mr. Stana. 1972, and a Master's in '76, with 2 years as a 
draftee in between.
    Mr. Issa. And I never saw you while I was driving campus 
bus during that period of time. I'm wondering what two alums--
how we missed each other. Only 28,000 of us there though.
    Mr. Stana. Yeah.
    Mr. Issa. The questions I'd have for you, certainly in the 
testimony it becomes obvious that ICE does not--cannot live up 
to its priorities. In the INS 1999 strategy paper, the INS 
claimed that its strategy is 5 major principles in order of 
priority. First, identify and remove criminal aliens and 
minimize the recidivism. Second, deter, dismantle and diminish 
smuggling or trafficking of aliens. I won't even get to the 
next three.
    The U.S. Attorney in San Diego has set up criteria that 
requires multiple felonies before she will prosecute a 
smuggler. There is no criminal alien removal program unless 
they are already incarcerated, and then of course they are not 
removed to Federal prison, they're kept in State prison, and in 
many cases they're not picked up at the end of their term.
    In light of that, my question to you is, should this 
Committee and should this Congress, considering fully breaking 
off INS and ICE and all these other agencies into separate 
immigration only departments, meaning not for the war on 
terror, and organizations that continue to do the war on terror 
and drugs and all these other things? And I ask that question 
because it now occurs to me that no matter how much money and 
no matter how the instructions are and no matter what they 
write in their own white papers, that agencies will simply fall 
back into anything except dealing with 7 million illegal 
workers and 11 million illegal residents.
    Mr. Stana. Going back into the mid to late '90's, there was 
a lot of frustration on activities and inactivities of INS 
dealing with interior enforcement. And I have testified before 
this Subcommittee on several occasions on some of the issues 
you've raised, you know, criminal alien removal and so on. When 
the Department of Homeland Security was created, the only 
agency that was specifically abolished was INS, and I think 
that was a reflection of the frustration.
    There are a number of different ways to attack this, and I 
think it ultimately boils down to a policy issue. If the 
Congress would like to reassemble an immigration agency, or at 
least a component of DHS, there are certainly lots of good 
reasons to do it. In creating DHS, and in the aftermath of 9/
11, the goal was to make sure something like that did not 
happen again. And therefore, most of the immigration activities 
flow from the overall strategic plan to deter and detect 
terrorism. You can see what the numbers show, what has happened 
to some of the more traditional INS activities. They have been 
downplayed or at least morphed into antiterrorism events.
    And so what I would say is, is that's a decision that you 
would have to make, but it's clear that what's happening now is 
not geared to those traditional interior enforcement programs.
    Mr. Issa. Thank you. One question is more than enough in 
this case.
    Thank you, Mr. Chairman. Yield back.
    Mr. Hostettler. Thank the gentleman, and I commend the 
gentleman for his line of questioning with regard to the focus 
of immigration law enforcement.
    The Chair now recognizes the gentleman from Iowa, Mr. King, 
for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I appreciate the 
testimony, and however many times I hear it, I don't get to 
this point where I just think there's nothing we can do. It's a 
redundant verbal exercise. I think there are many things we can 
do, and I think every time any of us speak up to the issue, it 
helps move it in this country, and it might even help the 
President get more conviction on enforcement of our immigration 
laws.
    Firstly, Mr. Stana, you testified about 2,300 employers 
have used the Basic Pilot Program. I would assume--is that in 
this calendar year basically?
    Mr. Stana. That's the number who are subscribed now.
    Mr. King. Okay. And--but that--and I notice as I looked 
through your testimony, I didn't see--that doesn't really 
indicate how many hits there are or how heavy the usage might 
be on an overall numbers basis, whether they're large employers 
or small?
    Mr. Stana. We can get the information for you.
    Mr. King. I'd be curious. And maybe you just have a 
judgment answer that would answer my curiosity, but is the 
software large enough? Is the technology in place well enough? 
Are there restrictions, the fraudulent use of documents and the 
DHS delays in entering the data, or is it software and 
technology?
    Mr. Stana. If the Basic Pilot Program were to be mandatory, 
and it would have to expand to accommodate all the employers in 
the country, the millions of employers in the country, a number 
of things would have to be done. You know, they have to expand 
the technology. You have to put the number of people who 
actually verify the documents in the secondary steps, you have 
to increase that number. But you'd also have to find some 
different way to pay for it. Right now this is paid through the 
fees that are paid through applications, and when the State 
DMVs query the system for the checks that they make. So there's 
not a lot of money to expand it.
    In fact, if maybe several thousand more employers were 
added to the 2,300, that would be the limit with the current 
system.
    Mr. King. Thank you, Mr. Stana. And I wonder also if the 
utilization goes up incrementally we'll be able to adapt to 
that; if we did this mandatory as a drop-dead date, then 
chances are we could have a system that could melt down around 
us?
    Mr. Stana. Yeah. We'd have to be careful how quickly we 
expand it.
    Mr. King. Thank you. We may need some advice on that.
    I turn to Mr. Jeffrey, and I think you brought some 
information before this Committee that has been something that 
I hadn't at least noticed that I had seen before in my piles of 
paperwork, and I'd look at it from a bit different perspective.
    Although you sorted this list, or at least brought the 
largest number of dollars up to the top, the Illinois employer 
with $524 million, almost $525 million in--I call them ``no 
match wages''--out of 5,454,000,000 so 9.62 percent. And then 
as I look down through on that percentage on the right-hand 
column I come quickly to item No. 13, California employer, 
almost 71 percent of those employees are no match. One might 
presume that the vast majority of those 71 percent are 
illegals. And then I go to employer No. 22, page D2, 70.76 
percent no match, $86 million out of $121 million. Next page 
over, D3 toward the bottom, 75.53 percent of those wages paid 
out in no match.
    We're in a technology day and age, and how hard would it be 
to go to a company like that and step in and apply employer 
sanctions given the odds that if 7 out of 10 or 7\1/2\ out of 
10 that are there right now as we speak are there illegally?
    Mr. Jeffrey. I think Congress ought to ask Homeland 
Secretary Chertoff why he isn't sending ICE agents to these 
companies, why he isn't demanding the names and why he isn't 
sending ICE agents. I think it's just simply inexplicable. You 
know, if you look at--there's the argument that these employers 
might be accidentally hiring these people who they don't know 
their Social Security number. Five years in a row, 131,991 W-2s 
they file with the Federal Government that are not accurate. I 
don't believe it.
    But there's another reason I'm skeptical about it, if you 
look at the reports of the Social Security Administration's 
Inspector General, and that the Government Accountability 
Office has done, about this Earning Suspense File. Although the 
bad W-2s are focused in particular industries that are somewhat 
predictable, they're also focused in certain States, 
particularly in California and Texas and Illinois. And 
apparently not all employers in those industries in which the 
bad W-2s are concentrated are problem employers for filing 
these bad W-2s. It seems that there are particular employers 
that tend to do it, tend to do it repeatedly.
    And then there are other things, Congressman, that the 
Government Accountability Office talks about. For example, many 
employers, as I think the Chairman mentioned, file multiple W-
2s in the same year with the same Social Security number. Can 
they not pick that up?
    So I think we need to have, we need to have a Federal 
investigative authority that goes to these corporations on this 
list, finds out exactly what's going on, and if the evidence 
shows that the corporate managers have knowingly hired illegal 
aliens, if that's what the evidence shows, then the law should 
be brought to bear against them.
    Mr. King. $11,000 per employee at the max.
    Mr. Jeffrey. Whatever the law says, it should be brought to 
bear against them.
    Mr. King. Thank you, Mr. Jeffrey, appreciate your 
testimony.
    I yield back. Thank you, Mr. Chairman.
    Mr. Hostettler. The Chair now recognizes the gentleman from 
California, Mr. Gallegly, for 5 minutes.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Ms. Gordon, I tell you, I couldn't agree with you more on, 
on your statement that employer sanctions under IRCA have 
failed dramatically, failed, I guess, as much as anything could 
fail. My interpretation of that is, in the absence of--it's not 
very easy for something to succeed if you've never implemented 
it.
    One of the things that's happened--and I hope I understood 
your testimony correctly--that all too often legal immigrants 
or American citizens sometimes get painted with the same brush 
as illegals on the job site. Would you say that's not correct?
    Ms. Gordon. I would say that's partially correct, although 
my point was that when wages go down because of unfair 
competition, they are affected equally.
    Mr. Gallegly. Would you say the best way to deal with that 
as an officer of the court and as an advocate of the rule of 
law, that we should enforce the law and aggressively remove all 
of those that have no legal right to be in this country under 
the employer sanctions law that are working here illegally?
    Ms. Gordon. As an officer of the court and an advocate 
dedicated to the rule of law, I would say that a focus on 
workplace rights enforcement is the best way to ensure that the 
rule of law is respected----
    Mr. Gallegly. Meaning remove them from their jobs?
    Ms. Gordon. No. Meaning enforce the minimum wage, enforce 
basic health and safety protections, therefore remove the 
incentive for employers to break the law with regard to these 
workers.
    Mr. Gallegly. But if the workers are working there 
illegally, should they or should they not be removed?
    Ms. Gordon. It's my opinion that the best way to deal with 
problems created by the presence of undocumented immigrants is 
to focus on the enforcement of basic workplace laws, that a 
focus on removal----
    Mr. Gallegly. Meaning----
    Ms. Gordon. --a focus on bringing immigration enforcement 
into the workplace, inevitably undermines the very goals as 
intended to protect----
    Mr. Gallegly. If someone is driving 100 miles an hour down 
the freeway, should you stop that person and tell them not to 
drive 100 miles an hour anymore?
    Ms. Gordon. If we're just talking about the freeway, I 
would 100 percent----
    Mr. Gallegly. If they are working illegally, should they be 
denied access to work, continue to work illegally?
    Ms. Gordon. It would be my point that if that is your 
ultimate goal, the way to go about it is not through employer 
sanctions.
    Mr. Gallegly. No. Ma'am, if you'd please just answer the 
question. Do you believe that someone that is working illegally 
in this country under our laws, should they or should they not 
be denied the right to work? Yes or no.
    Ms. Gordon. I would say that if that is the goal that you 
seek----
    Mr. Gallegly. Obviously, the----
    Ms. Gordon. --there's only one way to achieve it.
    Mr. Gallegly. I wish--I guess I'm not articulate enough to 
get a straight answer, and my time is expired, and I can't get 
a simple yes or no. Those are difficult answers. I yield back.
    Mr. Hostettler. Thank the gentleman.
    The Chair now recognizes the gentleman from Texas, Mr. 
Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. Gallegly. Is that correct? Did my time never start? I 
just thought it was taking me longer to get a yes or no answer 
than was necessary. Could I have a couple of minutes, because 
my time really didn't expire?
    Mr. Hostettler. I believe so. I saw the red light. I 
apologize to the gentleman from California, and the gentleman 
is recognized.
    Mr. Gallegly. Maybe Ms. Gordon was pushing other buttons 
over there. [Laughter.]
    Mr. Jeffrey, we understand--and maybe you could correct me 
if I'm wrong--that according to the Social Security service 
there is somewhere in excess of 10 million Social Security 
cards that are in use today where the name and the number does 
not match. Are you aware of that number?
    Mr. Jeffrey. Social Security, I am not, sir.
    Mr. Gallegly. Well, according to the Social Security 
service, my staff has received information that they do have in 
excess of 10 million Social Security cards where the name and 
number does not match, which means that there is an 
inconsistency at best, knowing that there is a large percentage 
of those are likely counterfeit or not legitimate cards. And as 
I believe it was Mr. King mentioned, some employers that have 
as many as 70 percent of the Social Security numbers that 
they're using that are not matched.
    Would it not be a fairly simple process--or maybe Mr. Stana 
could better answer this--that the Social Security service 
advise the employers? At one time I understand they were doing 
this aggressively, but for some reason just in the middle of 
the night this procedure stopped.
    Mr. Stana, maybe you would be the one to answer. Why could 
they not advise the employer that we have a list of names and 
numbers that don't match? You have 10 days to send us the 
numbers to see if maybe it was a typo or something, and in the 
absence of being able to clarify it, you're notified to 
terminate that employee immediately.
    Mr. Stana. Well, they should be doing that as part of the 
I-9 investigation process.
    Mr. Gallegly. Are they doing that?
    Mr. Stana. I don't know how well they're doing it. They 
should be, they should be doing that.
    Mr. Gallegly. Could you get a report back to this Committee 
letting us know what the status is on that, how many 
notification letters went out in the last 12 months. I'd also 
like to know, out of that 10 million last year, how many people 
were deported as a result of their illegal status working in 
the country?
    Mr. Stana. Okay.
    Mr. Gallegly. Mr. Chairman, that probably used my full 5 
minutes.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the gentleman from Texas for 5 
minutes, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Professor Gordon, I appreciate your being here today, and 
obviously you're here because of some expertise and your 
training and background. So I'll ask you, in your opinion, 
should illegal aliens be hired to work in the United States?
    Ms. Gordon. In my opinion, the United States has a very 
complicated relationship with undocumented immigration, on the 
one hand inviting it in many ways----
    Mr. Gohmert. Professor Gordon, pardon my judicial 
background, but I asked you a direct question. I asked, in your 
opinion should illegal aliens be hired in the United States to 
work? Yes or no. If you cannot answer, then say, ``I cannot 
answer.'' If you can, then answer yes or no.
    Ms. Gordon. If the question is what does the law permit, 
the law----
    Mr. Gohmert. The question was, in your opinion should 
illegal aliens be hired in the United States, yes or no? In 
your opinion, please answer.
    Ms. Gordon. My opinion is it's against the law.
    Mr. Gohmert. In your opinion, should illegal aliens be 
hired in the United States?
    Ms. Gordon. In my opinion it's against the law and it's too 
complicated a question for me to answer with a yes or no.
    Mr. Gohmert. Okay. So you know you're discounting 
everything that you have said by being unable to answer a 
direct question. Do you realize your credibility is shot when 
you cannot answer a direct question?
    Ms. Gordon. With all due----
    Mr. Gohmert. Is it too complicated for you to answer? It's 
a very simple question. In your opinion, in your opinion, 
should illegal aliens be hired in the United States?
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Gohmert. And that means if there are exceptions, the 
answer would be yes. If there are not, then you can say no, but 
you're saying it's too complicated for you to answer. Is that 
correct?
    Ms. Gordon. I'm saying the situation that has led to the 
immigration situation we are in is a very complicated one, and 
if you give me the time I would be very glad to give you an 
answer.
    Mr. Gohmert. I gave you the time. I've given you a great 
deal of my time to answer yes or no. You've been unsuccessful, 
and as far as to this individual on this Committee, you have 
blown your credibility because you cannot----
    Ms. Jackson Lee. Mr. Chairman, Mr. Chairman, I think the 
witness should be given the time to answer the gentleman's 
question.
    Mr. Gohmert. I did not yield, and I have a right to have a 
question----
    Ms. Jackson Lee. I understand, but----
    Mr. Gohmert. --answered and it was----
    Ms. Jackson Lee. --abuse of witnesses is--seems to be the 
trade of this Committee, and I don't think this witness should 
be abused.
    Mr. Hostettler. The time belongs to the gentleman from 
Texas.
    Mr. Gohmert. I would point out to the Chairman that this 
questioner is being abused by saying that I'm abusive. So all I 
was trying to get was a rather straightforward answer, yes or 
no, and I----
    Ms. Waters. Well, she said she wouldn't give it to you, so 
you're badgering her. [Laughter.]
    Mr. Hostettler. The gentleman yields to the gentleman--the 
gentleman's time----
    Mr. Gohmert. Obviously, I'm being badgered because I tried 
to get a yes or no answer, and I appreciate the condemnation 
when I can't get an answer.
    But please know, when you ask a direct question, I will 
support you in trying to get a direct answer----
    Ms. Waters. If the gentleman will yield, I will----
    Mr. Gohmert. --because I have that much respect for you and 
the process.
    Ms. Waters. But if you can't get it, you can't make her 
give it to you.
    Mr. Hostettler. The time belongs to the gentleman from 
Texas. The time belongs to the gentleman from Texas.
    Ms. Waters. There is a point that you badger.
    Mr. Gohmert. Thank you very much, Mr. Chairman.
    All right. Now then, let me see if I can get a question 
answered. Mr. Stana, if I said 2,000 Border Patrol agents hired 
today and 1,000 employer enforcement agents hired this very 
day, how long would they be able--before they would be able to 
actually start working in their respective areas?
    Mr. Stana. For the Border Patrol agents, I believe that's 
about--if you hired them today and they passed all the 
physicals and the other checks, the training itself would be, 
say, 3 to 4 months. Interior, roughly the same amount of time.
    Mr. Gohmert. Thank you. I'm curious. I'm asking about the 
database that ICE has--of course going back to the INS days--
what would you say the status of the database is? Is it good? I 
keep hearing reports from individuals that it is not what it 
should be, some bad information that's never been corrected. 
What's your opinion?
    Mr. Stana. Within the last year or so, they've transferred 
their data into the former, the Legacy Customs text system. So 
the INS data is beginning to go away. And that's why when you 
look at charts like the ones you see here with the lines going 
down, the general trend is the same, but trying to get the 
exact numbers requires some interpretation.
    The old INS data had some difficulties, and we've reported 
on that before.
    Mr. Gohmert. Thank you. And just so that I can explain 
myself, when you're asking questions that will give you answers 
about a witness's credibility, then it is important to find out 
what that witness thinks about a given area. And the only 
badgering of a witness occurs when the answer is forthcoming, 
but never in judicial proceedings is it badgering a witness to 
continue to get an answer, a direct answer to a direct 
question. It's only seeking credibility information, and I got 
the credibility information.
    Ms. Jackson Lee. Would the gentleman yield for a moment for 
an inquiry?
    Mr. Gohmert. My time has expired.
    Mr. Hostettler. The gentleman's time has expired. The Chair 
now recognizes the gentleman from Arizona for 5 minutes.
    Mr. Flake. I thank the Chairman.
    Mr. Hampe, with regard to the '86 law, you had a hand in 
writing that I understand.
    Mr. Hampe. Yes.
    Mr. Flake. Was there a thought at that time that we would 
perhaps need additional workers that weren't in the country and 
weren't part of the amnesty that was given at that time? Why 
wasn't that written into the law, some kind of process for 
additional worker visas beyond what we already have?
    Mr. Hampe. Congressman, it certainly was, it was probably 
the most difficult issue that caused IRCA to pend for three 
Congresses before it was enacted. And the ultimate version--or 
let me step back. The reason IRCA--the principal reason IRCA 
was not enacted in the 98th Congress was the existence of 
competing guest worker systems in the Senate and House bills, 
and the Senate bill had a very generous agricultural guest 
worker system that was not acceptable to the House. And so when 
IRCA was finally enacted in the 99th Congress, the solution was 
the SAW program, which was sort of an amnesty in the 
agricultural sector.
    So there was an awful lot of attention paid back in the 
'80's to temporary guest worker issues. It proved to be very 
complicated, and you know, I think there was an uncertain 
result as to did SAW, did the SAW program satisfy those needs?
    Mr. Flake. Well, given the fact that we have anywhere 
between 10 and 15 million illegals here now, it would suggest 
that maybe there wasn't a sufficient program for new flows of 
legal workers.
    Just along those lines, does it follow that any, any 
solution we find to the current crisis, if we want to return to 
the rule of law and actually enforce what we have, what does 
history suggest that we need to recognize in terms of the need 
to provide for the flow of additional workers?
    Mr. Hampe. That's a very good question. I think I would 
flip it just a little bit and say political history suggests to 
me that you probably will not be able to enact a large-scale 
guest worker program without the assurances that either 
employer sanctions or something like it will ensure that the 
entire flow from this point forward is lawful. Otherwise, many 
would view another guest worker program as simply a magnet for 
yet again more unauthorized migration.
    Mr. Flake. I could not agree more, and that is why the 
legislation that we've proffered already has the enforcement, 
but it also recognizes we're going to need significantly more 
workers than we have right now, and it's just, it's 
unreasonable to enforce a law that says we're done, we don't 
need any more new workers, like we did essentially in 1986. I 
would suggest that's why we've had such a problem here in terms 
of legal flows, we simply didn't recognize we'll need more 
workers, and I don't think that we ought to make that mistake 
again.
    I appreciate the time.
    Mr. Hostettler. I thank the gentleman.
    The Chair now informs the Subcommittee that we'll go to a 
second round of questions. I myself have several more 
questions.
    First of all, before I begin my questions, I want to refer 
to a comment made by you, Mr. Stana, that was so on point, and 
I know sometimes I forget that I want to definitely give a 
supportive voice of this entire Subcommittee and the entire 
Congress. You talked about a, ``dispirited attitude on the part 
of ICE agents'' in a quote earlier. While we talk about policy 
in this Subcommittee, and resources, we all uniformly in a 
bipartisan fashion support and are very appreciative of the 
hard work that our ICE agents, our folks at CBP and ICE do for 
our national security and enforcing the law. We are very much 
appreciative of them and do not in any way wish to downplay the 
importance of the work they do.
    That being said, Mr. Hampe, I appreciate your written 
testimony. It gives a very interesting and succinct history of 
the issue of employer sanctions, especially with regard to the 
work of the Select Commission on Immigration Policy Reform in 
1981, and the fact that, ``The critical vote cast by the Select 
Commission was its narrow recommendation, 8-7, of a more 
reliable mechanism to identify persons authorized to work in 
the United States, such as a counterfeit-resistant Social 
Security card.'' You go on to recount some of the testimony, 
some of the discussion by Senator Simpson, when he said, 
``There is no slippery slope to a national ID card or a 
national ID system in this bill. This bill prohibits it. If a 
national ID system emerges, it will only occur because we have 
taken deliberate specific steps toward creating it. I will 
oppose those steps.''
    Now, if you will humor me, the American Heritage 
Dictionary, Second College Edition, defines the phrase ``ID 
card'' as ``A card, often bearing a photograph, that gives 
identifying data''--if I can editorialize, a Social Security 
number--``as name, age or organizational membership about an 
individual.''
    Would you essentially agree with that definition, that an 
ID card is a card bearing--often, not always, but often bearing 
a photograph, identifying data as name, age or organizational 
membership about an individual?
    Mr. Hampe. A lawyer never quibbles with a dictionary.
    Mr. Hostettler. I appreciate it. Secondly, if that card was 
issued by a national government, would you not suggest that 
that would be a national ID card?
    Mr. Hampe. Certainly.
    Mr. Hostettler. Thank you. You also speak in your written 
testimony about--and you elaborate on this very well--the fact 
that after the notion of true identity fraud became the 
greatest to users of the Basic Pilot Program that employers in 
the--I believe it was meat packing industry--asked for access 
to the database of employees whom the INS suspected of 
committing identity fraud so that the employers could deny them 
employment.
    Could you elaborate on that and maybe suggest what we can 
do to reform the Basic Pilot Program to allow such access?
    Mr. Hampe. Yes, Mr. Chairman. I'll be happy to. And I 
believe the GAO testimony referred to that present problem in 
the Basic Pilot system right now, which is it detects invalid 
Social Security numbers, and it detects mismatches between a 
name and a number. But if someone has engaged in identity theft 
and has a valid name matching a valid number, then the Basic 
Pilot Program, at the moment, cannot detect such an employee.
    The SSA and the legacy INS, back when I was very involved 
in this issue, said that they had certain indicators they came 
up with that suggested the existence of identity fraud, and 
they were two addresses--address changes--two addresses for the 
same Social Security number. A variety of other factors.
    But they weren't absolutes, but when you stacked all the 
factors up, they allowed the INS back then to decide that it 
was worth issuing interview letters to individuals meeting this 
profile in the meat packing industry, which, in 1999 and 2000, 
was the subject of an enforcement action specific to that 
industry.
    So the meat packing industry, which is one of the principal 
industry participants in Basic Pilot, said we want to keep 
unauthorized aliens out of our industry, we think that's the 
thing to do for a variety of reasons. Give us this opportunity 
to use Basic Pilot and screen them out at the time of 
employment--at the time of initial employment, and the 
Immigration Service said, ``that's too complicated, and we 
can't.''
    I think pursuing that--Senators Hagel and Roberts actually 
introduced a bill that never went anywhere--but that directed 
the Immigration Service to do so, and I think it's something 
that's certainly worth exploring now because that is the 
Achilles heel of the Basic Pilot Program: identity theft linked 
to the Social Security number.
    Mr. Hostettler. Thank you. Mr. Jeffrey, if I can find the 
Statement that you made with regard to an IG--Social Security 
Administration IG report. When talking about barriers between 
the Social Security Agency--Administration--and the Department 
of Homeland Security, you say, ``furthermore, we continue to 
believe that SSA should seek legislative authority to remove 
barriers that would allow the agency to share information 
regarding chronic problems with DHS--chronic problem employers 
with DHS.''
    Could you elaborate on that? I know we've talked a lot 
about the numbers and the high numbers by some employers. Could 
you just elaborate on that type of work?
    Mr. Jeffrey. Right, Mr. Chairman. I believe that I was 
quoting from the Social Security Administration's Inspector 
General report that was published in April about misuse of 
Social Security numbers in the agricultural and service and 
some other industries.
    But I wrote a piece a few weeks ago about the fact that the 
Social Security Administration Inspector General had discovered 
a security guard company, based in California, that in tax year 
2001, had 49 percent of its W-2 forms dumped into this Earning 
Suspense File because the Social Security Administration could 
not match them up to a taxpayer. And I asked the Inspector 
General of the Social Security Administration if they informed 
the government of the State of California, if they had notified 
the Department of Homeland Security about this security guard 
company, and they told me, in response, that they believed 
that, with some exceptions--and my understanding of the key 
exception was in the context of a criminal investigation--but 
with some exceptions that section 6103 of the Internal Revenue 
Code prevented them from sharing that information.
    So I believe that what the Inspector General is referencing 
in that April report that I quoted there was this wall that 
they think prevents the Social Security Administration, which 
knows the identity of these companies that are filing all these 
bad W-2s, from giving that information to the Department of 
Homeland Security.
    To me, it's analogous to the wall of separation we had 
between counterintelligence investigators who couldn't hand 
over information they got on FISA warrants to criminal 
investigators before the PATRIOT Act was passed.
    I think it's a similar problem, if it is, in fact, this 
section of the IRS code that prevents this information from 
being passed on. I think that part of the code should be 
amended.
    I think that the Social Security Administration should 
actually be statutorily mandated to routinely and regularly 
pass on this information to the Department of Homeland 
Security.
    Mr. Hostettler. Thank you, sir. The Chair now recognizes 
the gentlelady from Texas, Ms. Jackson Lee, for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me 
as well acknowledge my good friend from Texas, who happens to 
be a jurist in his former life. Maybe he still is, and so when 
he poses the question to a witness and begins to analyze 
credibility, I believe that he is somewhat in the courtroom. 
And I don't know whether credibility can be based upon whether 
you agree or disagree with the witness. But I will say that 
another legal theory that you would use in the courtroom, a 
lawyer would rise and say, asked and answered.
    Ms. Gordon was asked, and she answered it. She was asked 
and she answered it. So I hope that we can apply ourselves 
equally and fairly to a number of legal guidelines when it 
comes to our mutual witnesses, and I do understand the 
frustration that many of us sometimes engaging with our 
witnesses.
    But in any event, let me proceed by suggesting, Mr. 
Jeffrey, I may, in fact, agree with you a lot to the extent 
that we need more resources. And so I pose to you this 
question.
    I notice--I'm not sure if you've said this, but immigration 
seems to find its way to the southern border, where Texas is, 
and it seems to be where we--as far as I'm concerned--we have 
been too heavily weighted to immigrants who happen to come from 
the southern border and make it only that issue.
    I don't think we've found one terrorist amongst the 
Hispanic population that's come across the border that may be 
considered undocumented aliens working in various places around 
the nation--whether it's hotels, hospitals, or in the 
agricultural areas.
    Not to say that I am either reckless or ignorant of the 
fact that we have to be secure on our borders, but I think it's 
important to note that when we talk about reducing the number 
of undocumented aliens, and that helps fight the War on 
Terrorism, frankly, I believe that the War on Terrorism is 
distinctive. It requires technology, intelligence. It requires 
keeping the terrorists away from our respective countries. So I 
would try to get you to try to--if you're saying something that 
employer sanctions have something to do with terrorism, I'd 
appreciate the opportunity for you to clarify.
    I'm going to ask all my questions, and then I'll yield to 
you all.
    Mr. Hampe, I don't think you are clear enough--I'm not 
going to go into ask and answered--but I don't think you were 
clear enough to give me guidance on getting the guys who are 
perpetrating the illegal documents. I want some legal guidance 
from you. You've obviously dealt with this issue, both 
professionally, and I sense that you're a little sensitive to 
taking a hammer to employers, the business community, and 
you're saying these guys are victims because they're getting 
all these random documents.
    So if you would guide me a little bit more.
    Ms. Gordon, I understand what you're saying, and I'd like 
you to explore it more. And that is, I understand you to say--
you're not answering the question on whether there should be 
illegal immigrants--I'll say that I think there should be a 
circumstance where we document those who are here illegally. 
That will certainly part the sheaves, if you will. That will 
separate the wolves from the sheep. You'll know who they are. 
You put them in line to get legalization, and you'll have an 
answer. I hope people will look at the Save America 
Comprehensive Immigration bill that I have that deals with that 
aspect; that fixes a lot of broken system; protects American 
jobs; gets more resources for the border.
    But help us understand more what you're saying by your 
words of suggesting that going after the illegal immigrant in 
the workplace is not going to help American jobs. It's not 
going to help employers stop doing what they're doing. If you 
treat the illegal immigrants badly by lower wages and can't go 
to the bathroom, they'll throw those out and get the next 
group. And so they keep coming, as I understand that may be a 
thrust. You may want to refine it a little better than what 
I've said.
    And, Mr. Stana, you know, we have the oversight, but it's a 
shame that when we go to experts like yourself and we ask what 
should we be doing, and we ask for more resources, because 
frankly I think that's what you need--trained individuals, not 
throwing good money after bad. But for example, you indicated 
the Basic Pilot Program, you can't do it because you don't have 
resources.
    But when we go to experts like yourself to the Department 
of Homeland Security, you know what you do? You turn into 
reticent, shy, on the wall, no comment, because you have the 
overall policy of a budget line item from the Administration 
that's cutting you off at the path. We're not going to be able 
to solve this problem unless experts have enough courage to say 
to their supervisors, I'm going to break rank. We're never 
going to get our hands around security, immigration unless we 
get the resources we need--from Customs, from ICE, from those 
who are on the border, from the Immigration Services that are 
backlogged, holding up people's documentation, 'cause they 
can't find the fingerprints, from the Basic Pilot Program--
that's a shame. There are people who are fighting to get the 
standard ID program to get through the airport.
    We can't do it, because we don't have enough money to do 
it. So you have these automatic travelers who could get that ID 
card. They can't get it, because there's not enough money.
    So I want you to answer that question. Why you don't speak 
up about the resources we need so we can fight for you in the 
United States Congress.
    If I can get Mr. Jeffrey to answer the question that I 
asked, and thank you, all, very much as witnesses.
    Mr. Jeffrey. Congressman, I appreciate your question. I 
think--first, I take your point that Latin American immigrants 
coming to the United States looking for a job are not a 
terrorism threat to the United States. I think the connection 
is first, as I quoted, Admiral Loy did say in the Senate 
Intelligence Committee that al-Qaeda leaders have looked at 
infiltrating terrorists across the Mexican border.
    Ms. Jackson Lee. OTMs.
    Mr. Jeffrey. Right. Because they think that will provide 
them with more operational security, i.e., the ability to 
operate secretly within the United States.
    Also, he said in his testimony, he cited criminal 
enterprises that can support terrorists or terrorism, and among 
those he cited, if I remember correctly, were people smuggling, 
document forgery, and identity fraud--the sort of crimes that 
Mr. Hampe was talking about are precursors to illegal aliens 
feigning employment in the United States of America. So I 
believe that in order to secure the border against the threat 
and the terrorists that may be infiltrating it, we need to 
limit the flow of people in general across the border so that 
the resources we have will be more effective in intercepting 
those malefactors.
    And if the people who are coming for jobs know they're not 
going to get a job because the job magnets have been closed 
down, we can more surely know that those who are illicitly 
trying to cross the border are coming for an intent that is not 
a job, and could be harmful to the American people. And so 
there's the market created for the criminal activity the 
terrorists use that the illegal aliens also use, and there's 
just the sheer numbers of people coming across the border that 
facilitates the movement of terrorists. And, in fact, last 
week, I believe June 14th, in Detroit, a Federal Judge 
sentenced a man named Mahmoud Kourani to 4-and-a-half years in 
jail for material cooperation with the terrorist group 
Hezbollah. He was raising money for them apparently in Detroit. 
But the Federal Government said this man had come across the 
Mexican border in the trunk of a car. So we do know that people 
come from the Middle East and do sneak across the Mexican 
border, and I believe that has to be stopped.
    Mr. Hampe. Congresswoman, I think the focus on documents 
fraud is appropriate now because A, not enough attention is 
paid to it, and B, if you do shift the focus primarily to 
employers, you run into the conundrum of, there are a small 
group of employers that do do very bad things. They should be--
there's no question that, you know, the full resources of the 
law should be used against them. And, you know, indicators such 
as the mismatch statistics that were displayed earlier, I think 
would be an advisable way to target the specific employers 
you'd want to go after.
    But the majority of Americans are employed by large 
employers. The large employers tend to be more sophisticated. 
They do, for the most part, have very well running HR 
departments that handle the I-9 process in such a way that 
they're not going to be found liable if ICE conducts an I-9 
audit.
    So I think, if you were to ask, so what specifically should 
we do to target documents fraud, my suggestion is this: ICE 
should, as the legacy INS did in the 1980's and early 1990, 
designate a cadre of attorneys to go into U.S. Attorneys 
offices in the major cities. U.S. Attorneys offices have these 
all the time. They're called Special Assistant U.S. Attorneys, 
or ``Specials,'' as the AUSAs call them, dedicated to 
immigration law enforcement where an ICE attorney, designated 
as a Special Assistant U.S. Attorney in a large U.S. Attorneys 
office, would prosecute specifically immigration crimes, would 
bring his or her expertise to that body of law that they're 
familiar with, the immigration crimes, and would specifically 
go after a priority list of crimes, including, I believe, 
documents fraud, with the objective being to substantially 
raise the price of a fraudulent Social Security card, driver's 
license, you know, the critical I-9 documents.
    What could we do right now? I would say that's what you can 
do, absent some major reform in, you know, in document 
security.
    Ms. Jackson Lee. But performing document security is an 
important challenge?
    Mr. Hampe. Absolutely. It has proven to be politically very 
challenging. Sorry.
    Ms. Jackson Lee. Thank you. Ms. Gordon?
    Ms. Gordon. Thank you, Congresswoman.
    As you know, we have not admitted, as Congressman Flake 
said, enough immigrants to meet the demand in this country. We 
have jobs going begging, and we have an immigration policy that 
claims to bar undocumented immigrants from taking these jobs, 
but covertly admits them in.
    It is my goal to have good jobs in this country and to have 
them filled by legal residents and by U.S. citizens. And I 
think the best means to achieve this is by immigration reform 
that is adequate to the demand, and then to deal with any 
residual of undocumented immigration through intensive and 
targeted enforcement of basic workplace laws.
    Ms. Jackson Lee. Okay. Mr. Stana. Thank you.
    Mr. Stana. Yeah. I think you have a good point. I think the 
Department of Homeland Security ought to be honest about the 
resources it needs to do its job. Our role is to make sure that 
it does the best job it can with the resources it has, and we 
have found areas where it has been a bit wasteful in its use of 
resources.
    As for the GAO, I'd love to have more resources than we 
have right now, but we've decided to hold the line in these 
tough budget times.
    Ms. Jackson Lee. Well, the light has been turned on in this 
room, Mr. Chairman. Thank you very much.
    Mr. Hostettler. The Chair now recognizes the gentleman from 
Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I do appreciate the instructional information from the 
gentlelady from Texas on how to question, and I completely 
agree questions should not be all that affected by whether we 
disagree or agree with an answer, and in the case like today, 
if I had ever gotten an answer, then I could have determined 
whether I agreed or disagreed.
    But I would also point out that whether it's at the 
courtroom, the hearing room, the living room, the board room, 
or just in life in general, credibility is always, always an 
issue. And none of us should ever forget that.
    Now, Mr. Stana, your testimony that you had provided in 
writing indicated that you believe ICE had chosen to 
concentrate on critical infrastructure, and I believe that you 
have talked about that some. So I would ask you, and then I'll 
follow with others, but in your opinion, what are the three 
most important things we could do with our money and our 
resources to address the problem? You get my question. You said 
we had chosen to concentrate on critical infrastructure. What 
three do you think would be most important to concentrate on?
    Mr. Stana. Within critical infrastructure, I would--
    Mr. Gohmert. Well, just in anywhere.
    Mr. Stana. Oh, anywhere?
    Mr. Gohmert. Anywhere.
    Mr. Stana. In homeland security or in worksite enforcement?
    Mr. Gohmert. Anywhere you feel like would be most helpful 
to concentrate resources.
    Mr. Stana. Let me start with worksite enforcement. I think 
the most critical things in worksite enforcement are these 
four: first, I think we need to get a better idea of how many 
foreign workers or illegal or legal immigrants we need to make 
our economy hum. Okay.
    Second thing I would do is I would set up an effective 
worker eligibility verification system with reliable documents 
so that I know the people I'm hiring are eligible to work in 
the United States.
    The third thing I would do is I'd have an effective regime 
of sanctions so that it would make a difference to me whether I 
hired--if I were an employer--whether I hired an illegal person 
or an unauthorized person or not. That doesn't exist right now.
    And the fourth thing is I would fund a credible system of 
worksite enforcement with enough agents to do that job.
    But I think you have to do all of those, not just one or 
the other.
    As far as critical infrastructure, I think that nuclear 
facilities and airports, airplanes are two good areas. I would 
expand that to targets--trophy targets that we have--and there 
are some efforts along those lines--trophy targets meaning 
White House, Capitol Hill, Golden Gate Bridge. I would make 
sure that those were protected because they would have a 
devastating impact, as the Twin Towers did on 9/11, if 
something happened to that, on the American people.
    Mr. Gohmert. Thank you. Mr. Jeffrey, just in dealing with 
the issue of illegal immigration, what do you feel would be the 
three most important places to concentrate our resources?
    Mr. Jeffrey. I think Mr. Stana has some good ideas. I think 
that Congress is doing the right thing by going forward and 
fully funding the new ICE agents that were authorized in the 9/
11 reform bill. It may turn out that there needs to be even 
more--it may turn out that there needs to be very strict--a 
very strict mandate from Congress that these agents are 
actually deployed to worksite enforcement. And I accept the 
argument of the people at ICE that they want to concentrate 
first on critical infrastructure.
    But considering that we have a $2.6 trillion Federal 
budget, and my view, as a conservative, there's a great many 
things this Government is spending money on that it doesn't 
need to spend money on, that the Constitution does not mandate 
that it spend money on, I believe this is such a priority that 
there shouldn't be, you know, penny ante budget restrictions on 
what it takes to make sure that we enforce the immigration law.
    Mr. Gohmert. Okay. Mr. Hampe?
    Mr. Hampe. I would agree with Mr. Stana's list, but would 
make one amendment to it, and that is in 1994 the Jordan 
Commission recommended that the best way to obtain a secure 
worker verification system is to come up with something like 
Basic Pilot. They had envisioned more than just a pilot.
    I think that makes a lot of sense. I think expanding its 
effectiveness, you know, the politics of making it mandatory 
are uncertain; but certainly making Basic Pilot capable of 
addressing queries from most of the U.S. employers and making 
it effective enough so that it can give an employer a heads up 
on whether an identity theft situation is present would be an 
extremely important item to add to the agenda.
    Mr. Gohmert. Thank you. I yield back my time.
    Mr. Hostettler. The Chairman recognizes the gentlelady from 
California, Ms. Waters, for 5 minutes.
    Ms. Waters. Thank you very much. There was a little bit of 
a discussion here with Ms. Gordon about a particular question 
that was asked by my colleague that she did not answer to his 
satisfaction, and while I recognize that Members would like to 
have their questions answered, we can't make anyone answer 
anything.
    But I want to say to Ms. Gordon that one of the problems we 
have with this issue is a failure to deal with it head on 
simply because it's too painful. Yes, there are problems with 
immigration in this country, and while we would like to have 
some humane answers, the fact of the matter is we have too much 
illegal immigration, and it does cause problems. We recognize 
that people are coming here because they're poor. They want to 
have opportunity. They want to be able to have a decent quality 
of life.
    However, we cannot excuse the illegal immigration and 
somehow create a sophisticated argument that talks about how we 
must target the employer for better pay and more humane work 
policies as a response to the illegal immigration. That just 
doesn't wash.
    The fact of the matter is this President said that he would 
put resources in the budget for 2,000 more border guards, which 
he did not do, which we are trying to force him to do, and 
that's not enough. We need to recognize there's a difference 
between legal immigration and illegal immigration.
    People who are here legally should be treated as American 
citizens. They should have a right to work and to earn a 
living. People that are here as illegal immigrants must be 
dealt with, and hopefully in the most humane ways.
    I believe that employers should receive sanctions. They 
should be real, and they should be enforced.
    People who've been in the United States for some period of 
time under certain conditions, we should recognize this as 
such, and there should be something that we could do. Nobody 
wants to talk about amnesty. It' a dirty word. It just creates 
all of this discussion and debate, and people use it in a 
political way. But I think there must be room for some kind of 
amnesty for people who have lived and worked here under certain 
conditions.
    But again, Ms. Gordon, that's not to say that we should not 
have sanctions against employers and not anything should 
continue to go. And while we have a lot of jobs that we need 
additional workers on, there is confrontation. There is 
confusion and competition for jobs that we have to recognize as 
a problem and deal with.
    Now having said that, Ms. Gordon, do you believe that we 
can create the kind of public policy that will recognize all of 
these complications and do the right thing by those immigrants 
who are getting here by any means necessary, employers who need 
to have some sanctions, people who need to be recognized as 
having lived and worked here for some period of time that 
should be allowed some amnesty and that this not have an either 
or, but some kind of public policy that recognizes all of these 
difficulties and complications?
    Ms. Gordon. I do believe that such a public policy is 
possible. And I think as you point out, Congresswoman, an 
important part of that is legalization and I do think that it 
is one of those rare confluences of interests across the 
spectrum here about making sure that jobs are available for 
U.S. workers. From my 18 years of experience working on the 
ground in the industries and with the employers that hire those 
workers--the small underground economy employers, the only 
thing that they respond to is consistent targeted enforcement 
that is brought about by the workers themselves. And the only 
way those workers are going to come forward is if they know 
they can enforce all the laws the employer is breaking--the 
wage and hour laws, the health and safety laws, and so on--by 
safely going to the Government to report them.
    What we're talking about here is competition for wages and 
working conditions. That's what's at the core of everything 
everybody has said.
    Ms. Waters. Okay. And I understand that, and I have to 
interrupt you here for a moment, because my time is going to 
run out and I have a great appreciation for that. But let me 
tell you where you must examine your argument.
    You must examine the argument that says someone who's here 
illegally in the first place has a right to go and challenge 
anybody about the conditions of the workplace. That argument 
won't fly in this public policy making that we have to do.
    I want to do something for workers who have been here and 
who deserve the opportunity to petition even this Government to 
say, you know, my children were born here; I've been here for 
so many years. I own a house. I pay taxes. And I want to 
support the immigrant that falls in a certain category.
    But when you say that somebody who came across the border 
yesterday, goes and works on a job, does not like the pay, does 
not like the fact that they don't have certain benefits, can 
now go and charge the employer with not having treated them 
right, something is wrong with that argument, and I want you to 
think about it and think about how to, you know, come up with 
other ways by which we can be honest, have some integrity in 
our public policy making, and do the right thing.
    Mr. Hostettler. The gentlelady's time has expired. I thank 
the gentlelady.
    The Chair now wishes to thank and commend the members of 
the panel for being here--for your very important contribution 
to this discussion. And the business before the Subcommittee 
completed--
    Ms. Jackson Lee. Mr. Chairman, may I have unanimous consent 
just to thank the witnesses as well because it's been a feisty 
hearing, and I want to thank them. We really appreciate you 
coming forward, and I just say to Mr. Jeffrey just a sentence: 
that intelligence is part of having pointed out the indicted 
gentleman in Detroit, and so it's not just resources and going 
down to the border, but intelligence will help separate the 
illegal immigrants from the OTMs, or others that might come for 
terrorist activities. When I say intelligence, the intelligence 
gathering opportunities of this nation.
    But I thank, you, and I'd like to thank the witnesses as 
well.
    Mr. Hostettler. I thank the gentlelady.
    Ms. Jackson Lee. Thank you.
    Mr. Hostettler. Without objection, the hearing is 
adjourned.
    [Whereupon, at 4:20 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Maxine Waters, a Representative in 
                 Congress from the State of California

    Mr. Chairman, we have a real problem with the illegal entry of 
aliens into the United States and with employers illegally hiring such 
aliens. With the lure of a job and a better life, more and more aliens 
illegally come across American borders every day. As it stands, the 
current law requires prospective employees to provide employers with 
specified documentation to prove that they have a legal resident 
status. However, illegal aliens have easy accessibility to fraudulent 
documentation to prove that they are legal residents. Therefore, this 
requirement needs to be strongly enforced by the overseeing agencies--
the Department of Homeland Security (DHS) and Immigration and Customs 
Enforcement (ICE). But this is not being done.
    Mr. Chairman, workplace enforcement and employer sanctions are 
dysfunctional. There is a huge problem with the employment of illegal 
aliens in this country and neither DHS nor ICE has made this problem a 
high priority. And with such lax enforcement by both agencies, there is 
no incentive for employers to stop hiring illegal immigrants, or for 
aliens to stop coming to America illegally.
    Also, with employers not being penalized for hiring illegal 
immigrants, illegal immigrants are being exploited at the workplace. 
They do not belong to unions out of fear of being fired; they 
consistently receive extremely low wages, and usually work in 
unsanitary or unsafe conditions. With such little enforcement at the 
workplace, the enforcement of immigration law is put into the 
employers' hands, leaving illegal aliens vulnerable to exploitation and 
abuse.
    Mr. Chairman, hopefully today we can explore options to effectively 
prioritize workplace enforcement and employer sanctions so as to better 
safeguard our borders and to prevent the exploitation of illegal 
immigrant labor. Hopefully our witnesses today can provide some insight 
into this pervasive problem and come up with strategies as to how to 
effectively address this problem.
    I yield back the balance of my time.

                                 
