[Senate Hearing 109-1060]
[From the U.S. Government Printing Office]

                                                       S. Hrg. 109-1060



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                             JUNE 19, 2006


                          Serial No. J-109-87


         Printed for the use of the Committee on the Judiciary

48-837                    WASHINGTON : 2009
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

      Subcommittee on Immigration, Border Security and Citizenship

                      JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    James Ho, Majority Chief Counsel
                   Jim Flug, Democratic Chief Counsel

                            C O N T E N T S




Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   104
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
Leahy, Hon. Patrick J., a U.S., Senater from the State of 
  Vermont, prepared statement....................................   111


Baker, Stewart, Assistant Secretary for Policy, Development, U.S. 
  Department of Homeland Security, Washington, D.C...............     5
Dodd-Major, Linda, former Director of Office of Business Liaison, 
  Immigration and Naturalization Service, Washington, D.C........    32
Gerry, Martin H., Deputy Commissioner for Disability and Income 
  Security Programs, Social Security, Administration, Baltimore, 
  Maryland.......................................................    10
Munoz, Cecilia, Vice President, Office of Research, Advocacy, and 
  Legislation, National Council of La Raza, Washington, D.C......    29
Myers, Julie L., Assistant Secretary, Immigration and Customs 
  Enforcement, U.S. Department of Homeland, Security, Washington, 
  D.C............................................................     8
Stana, Richard M., Director, Homeland Security and Justice, U.S. 
  Government Accountability Office, Washington, D.C..............    25
Verdery, C. Stewart, Jr., former Assistant Secretary of Homeland 
  Security, and Adjunct Fellow, Center for Strategic and 
  International Studies, Washington, D.C.........................    27

                         QUESTIONS AND ANSWERS

Responses of Stewart Baker and Julie Myers to questions submitted 
  by Senators Gassley, Kennedy and Sessions......................    38
Responses of Martin H. Gerry to questions submitted by Senators 
  Sessions and Kennedy...........................................    51
Responses of Cecilia Munoz to questions submitted by Senator 
  Kennedy........................................................    58
Responses of Richard Stana to questions submitted by Senator 
  Cornyn.........................................................    62
Responses of Linda Dodd-Major to written questions were not 
  available at the time of printing..............................    66
Responses of Stewart Verdery to written questions were not 
  available at the time of printing..............................    66

                       SUBMISSIONS FOR THE RECORD

Amador, Angelo I., Director of Immigration Policy, U.S. Chamber 
  of Commerce, Washington, D.C., statement.......................    67
Baker, Stewart, Assistant Secretary for Policy, Development, U.S. 
  Department of Homeland Security, Washington, D.C., statement...    79
Dodd-Major, Linda, former Director of Office of Business Liaison, 
  Immigration and Naturalization Service, Washington, D.C., 
  statement......................................................    88
Gerry, Martin H., Deputy Commissioner for Disability and Income 
  Security Programs, Social Security, Administration, Baltimore, 
  Maryland, statement............................................    94
Munoz, Cecilia, Vice President, Office of Research, Advocacy, and 
  Legislation, National Council of La Raza, Washington, D.C., 
  statement......................................................   113
Myers, Julie L., Assistant Secretary, Immigration and Customs 
  Enforcement, U.S. Department of Homeland, Security, Washington, 
  D.C., statement................................................   123
Stana, Richard M., Director, Homeland Security and Justice, U.S. 
  Government Accountability Office, Washington, D.C., statement..   134
Verdery, C. Stewart, Jr., former Assistant Secretary of Homeland 
  Security, and Adjunct Fellow, Center for Strategic and 
  International Studies, Washington, D.C., statement.............   161



                         MONDAY, JUNE 19, 2006

                               U.S. Senate,
                       Subcommittee on Immigration,
                  Border Security, and Citizenship,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:05 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
Chairman of the Subcommittee, presiding.
    Present: Senators Cornyn, Kyl, and Sessions.

                         STATE OF TEXAS

    Chairman Cornyn. Good afternoon. This hearing of the Senate 
Subcommittee on Immigration, Border Security, and Citizenship 
will come to order.
    First of all, I would like to express my appreciation to 
Senator Specter, the Chairman of the Judiciary Committee, for 
scheduling today's hearing, as well as my appreciation to 
Senator Kennedy, the Ranking Member, and his staff for working 
with us on the hearing.
    I also want to acknowledge, given the subject matter of 
worksite verification, being within the jurisdiction of the 
Finance Committee we were fortunate to have both the Chairman 
and other members of the Finance Committee also on the 
Judiciary Committee to work very closely on Title III, or this 
worksite provision that is actually contained in the Senate 
version of the bill, and those would be Chairman Grassley and 
Senator Jon Kyl, and I want to express my appreciation for 
their leadership on that critical issue.
    More than 3 weeks ago, the Senate passed the Comprehensive 
Immigration Reform Act of 2006. In my judgment, that bill 
contains fundamental flaws, and I voted against its passage. 
But I also recognize that the Senate bill reflects a 
comprehensive approach to immigration reform, and I have 
consistently advocated for a comprehensive reform, and I 
believe if we can get the bill to conference, we can 
significantly improve the bill and come out with a bill that 
both reflects our National interests and our National values.
    And while the differences between the House and the Senate 
immigration bills are many, we need to roll up our sleeves and 
get to work to find common ground. There is really no other 
option. I invite anyone who thinks this issue can wait to come 
down to Texas and just take a look firsthand at how this 
problem manifests itself along our borders, in our hospitals, 
in our schools, and in our criminal justice system. It simply 
cannot wait.
    The legislative history of the 1986 Immigration Reform and 
Control Act--the floor debates and Committee reports--reveal 
how similar the current immigration reform debate is to one 
held 20 years ago.
    Americans were assured then that there would be a one-time 
amnesty and better enforcement, and that that better 
enforcement, including a system to prevent undocumented workers 
from obtaining employment in the United States, would reduce 
the flow of illegal aliens into our country.
    The American people are now once again being asked to 
accept the same bargain today, and the cornerstone of this deal 
is a new electronic employment verification system.
    Unfortunately, the Senate has conducted virtually no open 
debate on this subject. Not a single amendment was debated or 
marked up during the Judiciary Committee hearing, and less than 
1 hour of floor time was devoted to this subject during the 
debates on the Senate floor.
    Now, this concerns me because not only do I see worksite 
enforcement as the critical means or linchpin, really, of 
successful immigration reform, but also because the Secretary 
of the Department of Homeland Security has told me that several 
provisions in the Senate bill would make the system unworkable. 
And the Government is not the only one to express concerns 
regarding the current proposal. Some groups have expressed 
concerns that an electronic verification system will increase 
opportunities for employers to discriminate against employees.
    Business groups, meanwhile, have also expressed concern 
with the Senate proposal. Under the Senate bill, an employer 
might not receive confirmation of a worker's status for up to 
50 days. That lengthy waiting period yields two results: a 
loophole for unscrupulous employers and a prolonged period of 
uncertainty for law-abiding employers.
    We have a diverse group of witnesses today, including 
current and former Government officials, and I am optimistic 
that their testimony will allow us to explore those issues in 
an open setting and build momentum for conference with the 
House. But a perfect verification system accomplishes nothing 
if we are not committed to enforcing the law against those who 
do not comply. And the Government's track record on employer 
sanctions does not inspire confidence. In 1999, there were 
2,849 worksite arrests for immigration violations. By 2004, 
that number had dropped to 159.
    And in 2003, Immigration and Customs Enforcement, ICE, 
devoted only 90 full-time equivalent employees to worksite 
enforcement. Let me just repeat that because the numbers are 
significant. Ninety employees to enforce laws that apply to 
every employer in the United States. Ninety.
    It is no wonder that many employers view enforcement as a 
remote possibility and any civil penalties that might 
potentially be assessed as merely a cost of doing business. And 
it is also no wonder that many Americans are skeptical about 
how serious the Federal Government is about enforcing its own 
    As we discuss these technical issues, we must not lose 
sight of the bigger question. Will this new electronic system 
eliminate the magnet of illegal employment? It is my belief we 
cannot control illegal immigration unless we stop illegal 
employment, as 45 percent of those who are currently in this 
country illegally have not come across the border illegally, 
but have come legally and overstayed and melted into the 
American landscape.
    This hearing will explore these issues, and it is my hope 
that we will be in a better position to improve the legislation 
during a conference with the House.
    Senator Kennedy has asked that his full statement be made 
part of the record, and it will be, without objection. And I 
know that we will probably have other Senators come in and out 
during the course of the day, as they have conflicting 
obligations. But since Senator Kyl is here with us, I would 
like to offer him an opportunity to make any opening remarks he 
would like to make.


    Senator Kyl. Thank you, Mr. Chairman. We certainly want to 
get to the witnesses, but I do want to commend you for the work 
you have done on this, not only as Chairman of this 
Subcommittee, but working alongside me and others to try to 
approach this whole question of comprehensive immigration 
reform in a sensible way. You have certainly done that, and I 
appreciate the hearing that you are holding here today.
    If you would pardon an anatomical analogy, it seems to me 
that not only is the workplace verification the backbone of any 
system, but it is also potentially the Achilles heel. As we saw 
in 1986, if you do not have a system that works well, then the 
rest of your program, however well intentioned it might be, is 
bound to fail. And what some people fail to appreciate is that 
you are not just talking about proper documents for guest 
workers, though, of course, that is included; but you are also 
talking about documentation for every American who is seeking a 
job, because the people who are here as guest workers will 
gladly show you valid documentation of their guest worker 
status. It is those who are not willing to participate in that 
kind of program, but, rather, will try to continue to get away 
with the use of false and fraudulent documents that you are 
concerned about. And those people contend that they have the 
right to work here because they have a Social Security card, a 
driver's license, a passport, or other document that has been 
fraudulently prepared.
    So that is the challenge that exists, and I note that Mr. 
Baker in his testimony talks about the key components of the 
current failed employment verification and enforcement system: 
fake documents and no requirement for employers to verify with 
the electronic system; broad safe harbors for employers and 
high standards to prove malfeasance; insignificant penalties 
which do not provide deterrence; lack of information sharing to 
target those who significantly abuse the system; and a failure, 
and I might even say, to some extent an inability to follow the 
fraud when new fraud schemes have developed.
    The plan that the administration lays out in general terms 
here I think is a good plan. One reason I think that, Mr. 
Chairman, is because it is very similar to the plan you and I 
laid out in our bill, and I think that the elements of a 
workable system are embodied in our legislation. But, there are 
some things that I hope that this panel and the subsequent 
panels can flesh out for us, which would include precisely how 
a plan will be implemented, for example, as to people who are 
currently employed, not just prospective employees; for all 
Americans, not just people that we think of as illegal 
employees today; how we will ensure that audits will occur so 
that it is known by employers that they will be audited within 
a relatively short period of time; therefore, appreciating the 
fact that they need to get into compliance quickly; how much it 
is going to cost; and in that regard, has the administration's 
budget submission this year reflected a serious attempt to get 
ahead of this problem. In other words, much of what the 
administration proposes is not dependent on congressional 
legislation. And so as the first step toward implementing a 
program is, a little over $100 million adequate to begin this 
program? What will the costs be? And does that depend to some 
extent on whether a card is involved in the system, as both the 
administration and Senator Cornyn and I propose? If so, what 
does that cost?
    Importantly, the timeline. Is 18 months as good as we can 
do? If so, there are a lot of people that would like to ensure 
that the system is up and running before benefits of the 
legislation apply to people? And I think that is a reasonable 
issue to raise.
    There are other issues as well, but all of the things that 
have been raised in your testimony I think are appropriate for 
discussion. And as the Chairman pointed out, probably the most 
important part of the legislation, after border security, was 
given the least amount of time for debate on the floor.
    Now, in fairness, one of the reasons was because the small 
group that helped to put together Title III I think did a very 
good job of starting the process. It is a very good first step, 
but it is by no means complete and it is only the beginning. 
And because it is the most important part of the legislation, 
in my view, we need to spend a lot of time making sure that we 
get it right.
    So thank you for holding the hearing, Mr. Chairman. I thank 
our witnesses for being here. We have got the right people to 
tell us what needs to be done, and we need to get about it.
    Chairman Cornyn. Well, we are pleased to have a 
distinguished panel with us today, and I will introduce each 
member of the panel, and we will swear you in together and then 
ask each of you to give your opening statement.
    First, Stewart Baker was appointed by President Bush to be 
Assistant Secretary for Policy for the Department of Homeland 
Security and confirmed by the U.S. Senate on October 7, 2005. 
Before his appointment and confirmation as Assistant Secretary, 
Mr. Baker served as General Counsel of the Commission on the 
Intelligence Capabilities of the United States Regarding 
Weapons of Mass Destruction, where he headed the drafting team 
for the Commission's report. He also served as General Counsel 
of the National Security Agency and Deputy General Counsel of 
the Department of Education. Earlier, Mr. Baker served as a law 
clerk to John Paul Stevens on the U.S. Supreme Court and to 
Frank M. Coffin on the First Circuit.
    Joining Mr. Baker on the first panel is Julie Myers. Ms. 
Myers is the Assistant Secretary of Homeland Security for the 
United States Immigration and Customs Enforcement. In that 
role, she leads the largest investigative component of the 
Department of Homeland Security and the second largest 
investigative agency in the Federal Government.
    Before her appointment by President Bush on January 4, 
2006, Ms. Myers served as Special Assistant to the President 
for Presidential Personnel. Before that, she was nominated by 
President Bush and unanimously confirmed by the U.S. Senate to 
serve as Assistant Secretary for Export Enforcement at the 
Department of Commerce. Before her service with the Commerce 
Department, Ms. Myers served as the Chief of Staff for the 
Criminal Division of the Department of Justice.
    Martin Gerry is our third witness. He was appointed Deputy 
Commissioner of Social Security for Disability and Income 
Security Programs in November of 2001. Before assuming his 
current position, Mr. Gerry served as research professor and 
director of the Center for the Study of Family, Neighborhood, 
and Community Policy at the University of Kansas, where he was 
also a faculty member within the university's School of Law and 
Education. Before that, Mr. Gerry served as the Assistant 
Secretary for Planning and Evaluation of the U.S. Department of 
Health and Human Services, where his responsibilities included 
overseeing the formulation and implementation of all Department 
policy were, as I say, his responsibilities.
    If I can ask each of you to rise and let me swear the 
witnesses in. If you will raise your right hand and repeat 
after me, do each of you swear that in the matter before the 
Committee you will tell the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Baker. I do.
    Ms. Myers. I do.
    Mr. Gerry. I do.
    Chairman Cornyn. Thank you.
    Mr. Baker, let's go ahead and start with you, if we may. Of 
course, each of your written statements will be made part of 
the record, without objection, and if you would care to 
summarize that for us in 5 minutes or so, and we will ask each 
of the other witnesses to do the same. And then I know all of 
us are eager to get to the Q&A.


    Mr. Baker. I am glad to summarize it, although I actually 
feel as though you and Senator Kyl have already pretty well 
summarized what I was planning to say.
    Thank you very much for having us here. This is, as you 
said, perhaps the most important topic that the bill addresses 
in the immigration reform area, and it deserves the attention 
that you are giving to it.
    We share your support for a comprehensive solution--we 
think that is the only way to address this issue--and also your 
concerns about the Senate bill and the practicality of some of 
the worksite enforcement provisions in it.
    As you said, 1986 was a long time ago, and yet it is a very 
familiar debate. Just to show how long ago it was, I looked up 
some things that happened in 1986. There were only three 
networks before 1986, and there had always been three networks. 
Fox just got started in 1986, and there was a little daytime TV 
show called ``AM Chicago'' that was changing its name to ``The 
Oprah Winfrey Show'' for the first time in 1986. So a lot of 
things have changed since then, and yet when you read those 
debates, it feels like today. The debate was over an 
immigration crisis. There were 3 million illegal immigrants in 
the country. Everyone knew they were drawn here by jobs, and 
the question was: How could the immigration be controlled?
    The answer was an effort to say we will grant amnesty, as 
you said, one time to the illegal immigrants who are here and 
we will have a tough worksite enforcement program. Up until 
1986, it was not illegal to employ people who had entered the 
country unlawfully, and there was no particular requirement 
that you show an ID to get a job. So Congress enacted what I 
think it was sure would be sufficient measures by making it 
unlawful to hire an illegal immigrant and by requiring that all 
workers show ID and go through a process of having that ID 
recorded by the employer.
    Obviously, that has not worked. We have got close to 12 
million illegal immigrants in the country today. They are still 
being drawn here by the prospect of getting work. So the 
question is: What went wrong?
    It turned out that we probably put to many eggs in one 
basket. We thought that just making it illegal to hire illegal 
immigrants and requiring ID would solve the problem. Instead, 
employees who wanted jobs who were here illegally just got fake 
IDs. They made up Social Security numbers, and that was the end 
of the enforcement mechanisms.
    The reason that it was not possible to go beyond that 
solution I think lies also in some of the compromises that were 
made in 1986. It is worth remembering that the business groups 
that were a part of that debate wanted to make sure that they 
did not have an excessive burden in hiring people. The 
immigrants' rights groups wanted to make sure that employers 
did not have too much discretion so that they could not use the 
rules for discriminatory purposes, and the result was employers 
were given a very narrow window. They were to look at the ID. 
If it was not obviously fake, it was not clear that they could 
do anything other than accept it. And so when fake IDs that did 
not misspell ``California'' came onto the market, it was very 
difficult for employers to do anything other than accept them.
    It was obvious that there was a problem. There are 9 
million people who are the subject of no-match letters each 
year. Those are mostly people who have made up Social Security 
numbers, based on our experience, and the employers who get 
those rarely do anything about the fact that they have received 
a letter that indicates that their employee's Social Security 
number and name do not match. They do not have an obligation to 
do that under the statute, and they have not had much clarity 
about how they should address that problem.
    We have come out with a proposed rule that will give more 
clarity and provide a clear safe harbor for employers so they 
know what they can do to clear up those problems and hopefully 
discourage workers who are working on false Social Security 
numbers. But, in general, it has been very difficult to squeeze 
solution to these new forms of fraud into a statute that was 
written on the assumption that everything could be solved with 
an ID requirement.
    We want to avoid making that same mistake with the new 
legislation, and our proposal is to address this in a number of 
    First, we ought to end the most obvious fraud, the made-up 
Social Security numbers, by requiring electronic verification 
of the name and the Social Security number, by sharing data 
from the Social Security Administration's records, and by 
improving identification cards.
    Second, we need to have a much more pervasive partnership 
with employers. We have to make sure that employers do not 
mechanically carry out a limited number of tasks without asking 
the question: Do I really think this person is here in the 
country legally? We have got to get beyond a series of 
obligations that depend on not knowingly hiring an illegal 
alien and ask people not to recklessly or negligently hire 
illegal aliens. We cannot expect employers to be detectives, 
but we can expect them to be our partners in enforcing the laws 
of the land. And that is something that the statute needs to 
    Third, we need to increase the penalties on employers who 
do not obey the law. As the President said, some of the 
penalties that are in the law now are less than a speeding 
ticket in many jurisdictions. We have got to substantially 
increase those, and we have got to particularly increase them 
very aggressively for repeat offenders so that we have the 
ability to take this well beyond the cost of doing business and 
making people put their business at risk if they are going to 
violate the law.
    And, finally, while we expect that these changes are going 
to make it much harder for people to work with a made-up or 
false Social Security number, we need to be very careful to not 
put all our eggs in one basket again. We need to have the 
regulatory flexibility to address new forms of fraud as they 
arise and to give employers a new sense of the steps that they 
ought to take to address these new frauds. I think you may have 
seen the story in the paper over the weekend about Audra 
Schmierer, who is a housewife in California who discovered that 
her Social Security number and name had been used by 81 people 
in 17 States.
    Now, that is a form of fraud that electronic verification 
by itself is not going to address, and we need to be alert to 
the fact that there will be new forms of fraud even if we stamp 
out the existing made-up Social Security fake ID business, and 
that is why we need broad authority to address new problems.
    So I will close there, Mr. Chairman. I think this has been 
an enormously helpful exercise, and I hope to be able to 
address any further questions you may have at the end.
    [The prepared statement of Mr. Baker appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Mr. Baker. I have a copy of the 
Associated Press story that you just alluded to, 81 people in 
17 States using this woman's Social Security number, and 
obviously creating havoc in her life, not to mention the fraud 
that it perpetrated upon others. We will get to that in a 
    Ms. Myers, would you please give us your opening statement?

                        WASHINGTON, D.C.

    Ms. Myers. Thank you, Chairman Cornyn and members of the 
Subcommittee. Thank you for having me here today with my 
colleague, Stewart Baker, to talk about immigration enforcement 
in the workplace.
    ICE is reinvigorating our worksite enforcement efforts as a 
core part of our interior enforcement strategy. We are seeking 
to change the culture of illegal employment across the country 
by pursuing the most egregious employers engaged in the 
employment of illegal workers and educating the private sector 
to institute best hiring practices.
    I appreciate the opportunity to elaborate a little bit 
about what Assistant Secretary Baker talked about, our 
historical experience implementing the 1986 Immigration Reform 
and Control Act.
    The INS focused primarily on the enforcement of 
administrative employer sanction provisions. This approach 
resulted primarily in the issuance of Notices of Intent to 
Fine. After extensive litigation, the typical result was a 
small fine that was routinely litigated or ignored and had 
little to no deterrent effect. In short, the system did not 
serve as a true incentive to change their business model.
    Moreover, under the 1986 law, employers were not required 
to verify the validity of a document and were not required to 
even maintain a copy of the documents that they reviewed. This 
resulted, as Secretary Baker testified, in an explosive growth 
in an increasingly profitable false document industry that 
catered to undocumented workers who purchased the documents 
necessary to gain employment.
    Cognizant of these lessons, ICE's current worksite 
enforcement strategy is targeting felony charges to bring in 
appropriate worksite enforcement investigation. And how does 
this approach work differently than the old approach used by 
the INS? Well, you could take the Kawasaki restaurant chain 
case as an example. Back in March, ICE executed warrants at 
three Kawasaki restaurants and at four related residences, 
where we encountered 15 undocumented aliens living in 
completely deplorable conditions in an apartment with non-
working bathrooms and these aliens were being paid $2 an hour 
to work at these restaurants.
    At the same time that the aliens were suffering, the owners 
of these restaurants had created a lavish lifestyle for 
themselves, purchased themselves several houses, fancy cars. 
Fortunately, the ICE agents were able to criminally arrest them 
on money-laundering charges and harboring illegal aliens for 
commercial advantage. We seized their assets. We seized eight 
luxury vehicles and ten bank accounts. The owners have since 
pleaded guilty to these felony charges and agreed to forfeit 
approximately $1.1 million in assets.
    Now, how would this have been handled differently prior to 
ICE's new approach? Well, historically, the INS agents would 
have simply conducted an I-9 inspection, which would likely 
have led to the issuance of a fine based on paperwork 
violations. The owners would have likely escaped even a 
misdemeanor charge available under 274A, and the maximum fine 
would have been $20,000 or $30,000. And in any case, that would 
have been negotiated to something even further.
    With such a paltry end result, it is not surprising that 
the old employer sanction regime had simply become a cost of 
doing business.
    There are several other recent cases that demonstrate ICE's 
new tougher approach that is designed to really attack 
egregious employers where it hurts--their bank accounts and by 
bringing criminal charges. For example, in April we had the 
IFCO Systems worksite case, where mid-level managers and 
employees at IFCO were charged with conspiracy to transport and 
harbor illegal aliens for financial gain, as well as with 
document fraud.
    Another example is the Fischer Homes case in May where 
several Fischer Homes employees were also charged with 
harboring illegal aliens for commercial advantage. Some of the 
penalties in these cases carry up to 10 years in prison.
    I firmly believe that charging egregious employers with 
criminal felonies will create the kind of deterrence that was 
previously absent in enforcement efforts. In fact, we are 
already starting to see that businesses are responding. We have 
seen a substantial increase in requests for training and for 
other information. And to be clear, while the magnet of 
employment is fueling illegal immigration, we do find that the 
vast majority of employers do their best to comply with the 
law. Accordingly, we are also providing good tools on our 
website and providing presentations to employers to tell them 
how to avoid getting into trouble with the law.
    Moreover, as part of our comprehensive strategy and since 
9/11, we have continued to prioritize critical infrastructure 
for worksite enforcement. Just 5 days ago, an ICE investigation 
apprehended 55 illegal aliens working at Dulles Airport. In our 
view, effective homeland security requires verifying the 
identity of not just the passengers who board the planes, but 
also the employees who work at the airports and the employees 
who staff our critical infrastructure sites.
    Additionally, to more effectively combat the significant 
role that fraudulent documents play in the illegal employment 
of aliens, we have created with the Department of Justice 
Document and Benefit Fraud Task Forces throughout the United 
States. These task forces focus on the illegal benefit and 
fraudulent document trade that caters to aliens looking to 
obtain illegal employment. By reshaping our enforcement 
efforts, I believe ICE will be able to more effectively reduce 
the magnet of illegal employment using existing authorities. 
And as the Congress seeks to learn from the lessons of the 1986 
Act, there are also several tools that would be of substantial 
aid to us in our efforts:
    As Assistant Secretary Baker noted, we need fuller access 
to information, access to the no-match data. Second, we believe 
we need a new and improved process for issuing fines, and 
larger fines so that they serve as more than just a cost of 
doing business. And, third, we need additional resources, as 
requested by the President in the 2007 budget.
    We are dedicated and committed to the worksite enforcement 
mission, and we look forward to working with the Subcommittee 
in our efforts.
    Thank you.
    [The prepared statement of Ms. Myers appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Ms. Myers.
    Mr. Gerry.


    Mr. Gerry. Thank you, Mr. Chairman.
    Mr. Chairman and members of the Subcommittee, first I want 
to thank you for the opportunity to discuss how the Social 
Security Administration issues Social Security numbers and 
processes wage reports, which I think are the key parts of the 
testimony that relate to the theme of this hearing. These 
important activities are part of our core mission of 
determining eligibility and the benefit amounts for the Social 
Security retirement and disability programs that we administer.
    At the heart of these determinations are records of the 
amounts earned by each individual over his or her working 
years. Maintaining accurate records is of utmost importance, 
and the Social Security Administration developed the Social 
Security number to keep an accurate record of workers' 
earnings. The Social Security card was provided to individuals 
as a record of their number. The Social Security card was never 
intended--and does not serve as a personal identification 
document. Possession of the card does not establish that the 
person presenting it is actually the person whose name and 
Social Security number appear on the card.
    Over the years, the use of the Social Security number has 
proliferated as Government agencies and private industry have 
used the Social Security number as a convenient recordkeeping 
method. Consequently, the Social Security Administration 
continually improves its processes for issuing numbers and 
cards to ensure the integrity of both. We have developed 
processes for issuing Social Security numbers to newborns and 
to immigrants with permanent work authorization. In addition, 
the Social Security Administration has developed more stringent 
verification processes and requirements, which I have discussed 
at some length in my written statement.
    As the uses of the Social Security number have increased, 
the need for counterfeit-resistant Social Security cards has 
also grown. Congress and the Executive Branch have worked 
together to increase the security features of the card.
    You asked me to discuss the costs related to replacing 
cards currently in use with a different kind of card. The major 
cost of replacing cards is not the cost of the card itself, 
regardless of how elaborate that card might be. It is the cost 
of interviewing every individual and carefully verifying the 
documents that are submitted as evidence.
    Last year, we estimated that a card with enhanced security 
features would cost approximately $25 per card, not including 
the startup investments. According to those estimates, 
reissuance of all new cards for the 240 million cardholders 
over age 14 would cost approximately $9.5 billion. Since that 
estimate, we know that the cost of issuing Social Security 
cards has increased by approximately $3 per card due to new 
requirements for additional verification of evidence developed 
as a result of legislation passed by Congress.
    Last year, we estimated that we would need about 67,000 
work-years to process 240 million new cards. This would require 
hiring approximately 34,000 new employees if we were required 
to complete the work within 2 years. If the new card was issued 
to only a limited number of individuals each year, such as 34 
million, which would represent the individuals changing jobs 
and individuals reaching working age--new entrants to the labor 
force--the costs would be approximately $1.5 billion per year.
    The Social Security Administration offers many alternatives 
to assist employers in verifying that the name, number, and 
date of birth submitted by a new employee matches Social 
Security Administration records. Employers can call a toll-free 
number. They can submit a paper list to our local office of 
names and numbers, they can submit magnetic media, or they can 
use an Internet-based service which we call SSNVS.
    Last year, we processed over 25.7 million verifications for 
over 12,000 employers through SSNVS. This is the new Internet-
based service. We estimate that we provide an additional 41 
million employer verifications through other methods. Employers 
may also use the Basic Pilot Program administered by the 
Department of Homeland Security to verify work eligibility of 
new hires. In 2005, the Social Security Administration 
processed approximately 1 million queries to the Basic Pilot.
    We also send letters, often called ``no-match letters,'' to 
employers who submit wage reports that meet a certain threshold 
for errors. In 2004, we sent approximately 120,000 no-match 
letters to employers, which covered 7.3 million mismatched 
records. For privacy reasons, the letter includes only the 
Social Security number, not the name of the individuals. These 
letters are generated as part of the wage-reporting process, 
and the source of information is the tax return information on 
Form W-2. SSA receives and processes Form W-2s for the Internal 
Revenue Service.
    The use and disclosure of tax return information is 
governed by Section 6103 of the Internal Revenue Code. SSA 
currently has the authority to use this information only for 
the purpose of determining eligibility for and the amount of 
Social Security benefits.
    Although under current law the Social Security 
Administration cannot release no-match data to the Department 
of Homeland Security, the Administration supports allowing this 
disclosure for national security and law enforcement purposes.
    In closing, the Social Security Administration remains 
committed to maintaining the security of the Social Security 
number and the card to ensure that the American public's hard-
earned wages are properly credited so that they will be able to 
receive all of the benefits to which they may be entitled.
    Thank you very much for the opportunity to appear before 
you today, and I will be pleased to answer any questions you 
may have.
    [The prepared statement of Mr. Gerry appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Mr. Gerry.
    We will now proceed to 5-minute rounds of questions, and I 
can think of a lot of them based on what you have told us so 
    Secretary Baker, you mentioned that we have all tried to 
learn from what happened in 1986, and I think the way you put 
it is, ``What went wrong? '' And as I recall, former Attorney 
General Ed Meese wrote an op-ed in the New York Times. He said 
that Ronald Reagan was persuaded that the only way that we 
could get beyond where we were in 1986 would be to grant 
amnesty, but then the trade-off, the quid pro quo, would be 
effective worksite verification and sanctions against employers 
who cheat.
    Here we are today, as several of you pointed out, with the 
number not 3 million but closer to probably 12 million, and no 
one knows for sure. We have had lengthy and I think very 
helpful debates both in the House and the Senate on this issue, 
and a lot of the focus has been on the border, some suggesting 
that we need to do more along the border. I certainly agree. We 
need to secure our border. We need to know who is coming into 
the country and what their intentions are when they get here in 
the interest of our national security.
    But as I pointed out, and as Senator Kyl reiterated, we 
spent about 1 hour on the Senate floor talking about this 
issue, which is essential to getting some handle on the 45 
percent of illegal immigration that takes place from people who 
come in legally but who overstay and who are attracted to this 
huge magnet known as America, prosperity and jobs.
    How much of this problem--assuming we did not do anything 
else, how much of this problem could we address effectively if 
we just allowed information sharing between the Social Security 
Administration and the Department of Homeland Security when it 
came to no-match letters? The figure I had that Mr. Gerry 
mentioned, in 2004 we sent approximately 120,000 employer no-
match letters, which covered 7.3 million mismatched records.
    Mr. Baker. We could certainly make a big dent in the 
problem. In the long run, I think we believe that the 
electronic verification system is more effective. The Social 
Security system is not designed for addressing illegal 
immigration. It simply has revealed a lot of illegal 
immigration and has given us a clue as to where that is, or at 
least it has given the Social Security Administration a clue as 
to where that is. Since we cannot see it, we cannot use that as 
a tool to guide our investigations.
    We obviously need that. There are employers who are using 
the same Social Security number over and over again for dozens 
of employees. We need to know who those employers are because 
they obviously ought to be at the top of our list for 
    So it would be a useful tool, if not perfect. It is 
delayed. It arrives up to a year or more after the employee has 
begun working so that for seasonal workers, they may well have 
moved on by the time we would get notice of a no-match, which 
is why we think the electronic verification also is necessary.
    Chairman Cornyn. Well, I certainly agree with you that both 
are necessary.
    Ms. Myers, recently ICE conducted a large raid on a pallet 
manufacturer who had refused to respond to--I believe it was up 
to 13 different inquiries from the Social Security 
Administration about a number--as it turned out, more than 50 
percent of their employees who were on the no-match list. Could 
you explain how you were able to conduct that enforcement 
action in spite of this law that prohibits information sharing 
as a rule?
    Ms. Myers. Absolutely, Senator. In the IFCO case, we first 
started the investigation when an employee kind of came to us, 
came to local police and said they had seen some things inside 
IFCO that were wrong. People were ripping up W-2s and, you 
know, that certainly sent--this employee realized there was 
something wrong.
    As we worked through this investigation, we were able to 
bring Social Security in on this investigation, but if we had 
had this information at the beginning, we could have targeted 
IFCO. As you mentioned, approximately 13 letters, each letter 
saying more than 1,000 employees had no-match. This would have 
been an employer that we would have targeted from the beginning 
and not had to work this case through other means. So it would 
have kind of tremendous value having access to this information 
up front to really drive our investigations to the most 
egregious employers.
    Chairman Cornyn. Mr. Gerry--and thank you for doing it--you 
gave us some proposals for how much money it would cost to 
change the Social Security card, and if we looked at doing it 
for everyone, some $9.5 billion, but if we targeted it, more; 
at least perhaps on a phased-in basis, it could be done for 
less than that. But, really, my question goes to all three of 
you about what the American people are being asked to accept 
when it comes to comprehensive immigration reform. Knowing that 
it is going to cost a lot of money and take some time and take 
development of considerable infrastructure when it comes to 
border security and the systems that it would be necessary to 
expand the Basic Pilot Program so that employers could actually 
verify employment eligibility, and perhaps even change the 
nature of the Social Security card to verify that, in fact, 
this person is actually the person who claims that is their 
card to prevent things like identity theft.
    Isn't it realistic to say that this comprehensive reform, 
which I support, should be phased in once we have had an 
opportunity to get some of these systems up and running so that 
we can actually have some confidence that they will work? I am 
going to throw that hot potato to you, Mr. Baker, to start 
    Mr. Baker. Thank you. Well, certainly, on the question of 
what the American people will be asked to accept, you and 
Senator Kyl have both identified not just the costs. We all now 
when we get jobs have to fill out I-9 forms, and there will be 
more requirements beyond paying taxes on Americans who want 
jobs because, as Senator Kyl pointed out, it is very easy for 
someone to pretend to be a U.S. citizen. And so if we do not 
ask everyone who takes a job to go the electronic verification 
system, then the system will not work. So this is not cost-free 
for anyone.
    On the question--you asked me a hot-potato question. Sorry.
    Chairman Cornyn. Well, the question is: Should the American 
people just accept comprehensive immigration reform based on 
the Government's promise to follow through with the means to 
actually make it work? Or should there be a phased-in system 
where once the border is secure and once the worksite was--we 
were able to verify eligibility of prospective employees, then 
we could work on phasing in other aspects of the program?
    Mr. Baker. The phasing of this is tricky, but there is no 
doubt that it is going to take us a little while to get many of 
these systems ramped up. This is not something that can be done 
overnight, or at least it cannot be done well overnight. And at 
the same time, I think that there would be considerable 
difficulty if you began aggressive worksite enforcement and had 
nowhere for the people who were going to lose their jobs as a 
result of that to go, if you did not have a temporary worker 
program for them to enter into. So that there are difficulties 
with beginning all of enforcement without also providing a 
place for people to go when they are driven out of the shadows 
and hopefully into the light.
    Ms. Myers. If I could just add to Secretary Baker's 
comments, as the enforcement agency we are committed to 
stepping up our worksite enforcement efforts and, in fact, are 
doing so, regardless of whether Congress will pass a law. This 
year alone, on criminal investigations of egregious employers, 
we are already up over 121 percent over last fiscal year, and 
that is only based on the end of May totals. So we are 
aggressively ramping up worksite enforcement, as directed by 
Secretary Chertoff, and we will continue to do so, regardless 
of whether there is a change in the law.
    Chairman Cornyn. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Let's break this down a little bit. In your testimony, Mr. 
Baker, on page 7, you quoted the President talking about a key 
part of the system being a new identification card for every 
legal foreign worker. As I mentioned in my opening statement, 
the people least likely to be engaged in fraud would be those 
people who seek a new identification as a temporary worker. 
They would have every incentive to use that. It would probably 
be something like a laser visa that people from Mexico obtain 
today to come into the country for short periods of time.
    Would all of you agree or, in effect, stipulate that for 
the guest worker program, some kind of legal document that can 
be easily verified and has biometric data in it would be a 
logical step to take. Any disagreement there?
    So the key question is then what you do with everybody 
else, namely, American citizens and everybody who has claimed 
to or will claim to be an American citizen. And my question is: 
What are we going to do to verify the eligibility? Let me just 
state a couple predicates and then ask all three of you to 
relate to this.
    Madam Secretary, you talk about the ICE worksite 
investigations, and you say the law should reasonably require 
to review and retain relevant documents and information 
obtained during the verification process, as well as during the 
subsequent employment of a worker. I am just going to posit 
that if we are relying upon employers to look at documents, we 
are starting off on the wrong foot here. So just put that away 
for a moment.
    And, Mr. Gerry, you say on page 2 of your testimony that, 
``Our ability to determine the identity of the person to whom a 
number has been assigned, whether that individual was entitled 
to an SSN, and whether the individual was authorized to work in 
the U.S. at the time the SSN was issued, has been improved with 
the development of SSA's more stringent verification processes 
and requirements.''
    You go on to point out that the bulk of the expense and the 
issuance of a card for everyone who seeks employment--it would 
not have to be everybody in the United States, but at least if 
you seek employment, you would have to have this case--that the 
bulk of that expense is in the background checks to determine 
eligibility for it. It is not in the issuance of the piece of 
paper itself, as I recall.
    So with those background notes here, would all three of you 
speak to what the administration proposes with respect to 
verifying the employment eligibility, not of foreign workers 
but of everybody else, starting with Policy Secretary, Mr. 
    Mr. Baker. Thank you. The administration has been 
supportive of the idea of having a tamper-proof Social Security 
card, not one that is an identity card but a card that is not 
easily forged. As a way of preventing what happened to Audra 
Schmierer and the identity theft problem, that has considerable 
value. You do not have to go to an identity card or require--
    Senator Kyl. May I just interrupt you? Would it have 
biometric data or at least a photograph? Otherwise, how would 
you identify the number with the person who is seeking 
    Mr. Baker. Well, the important thing--we have not suggested 
that it necessarily include biometrics because even without 
biometrics, as long as a limited number are issued, as long as 
you do not issue more than one, then there is only one. And you 
cannot have 81 people walking around with the same card.
    Senator Kyl. But if the card is stolen, I can contend it is 
my card, even though it is not, unless there is a way for the 
employer to see obviously that I am not the picture on that 
card. So don't you have to have some identifier connected to 
the card?
    Mr. Baker. We have not gone as far as that. That changes 
substantially the Social Security--
    Senator Kyl. Wait, let me just interrupt and go on to the 
rest of the panel here. You are going to have to persuade me 
that somehow not only can Social Security verify the legitimacy 
of the number, but that you can connect it up to the individual 
who is presenting the card to you when you offer the job. So 
would all three of you address that?
    Mr. Baker. And I would just point out that many--most 
Social Security cards now are issued at birth, and most people, 
unlike me, don't look as much like they did when they were 
born. And so it is unlikely that the picture will do much good, 
or you are going to have to have them renewed regularly.
    Ms. Myers. I don't know that I have too much to add on the 
particular point that Secretary Baker raised, but to the point 
about whether or not the card is enough, we think the card is 
not enough. You need to have kind of a comprehensive approach 
and a comprehensive view of how you do effective worksite 
enforcement. So from an enforcement agency's point of view, we 
would be looking at, you know, beefed-up document and identify 
fraud cases. That is where for us I think it would be helpful 
if the employers were required to retain the documents. It is 
also helpful for us--we have had a number of employers come to 
us recently and say, ``We are not sure we are doing this right. 
How do we do this? '' It is helpful, if they were required to 
keep the back-up documents, to see, you know, who was trained, 
how were they trained, what sort of things they were doing. So 
in terms of enforcing the law, it is helpful for us to be able 
to use all the criminal statutes to go after it and not depend 
on just one tool.
    Senator Kyl. Let me get to Mr. Gerry, but let me just say 
that if we are going to rely upon documents, you are going to 
have to persuade me that they are not counterfeitable or that 
the employers can easily determine that they are not 
counterfeitable, or every employer is going to have to continue 
to play cop and try to figure out whether this birth 
certificate is real or not or the driver's license is real, or 
whatever. I do not see how the administration can support a 
temporary worker program and an employment verification system 
that does not clearly connect a valid Social Security number to 
the applicant for the job in some very specific governmentally 
determined way. If you are going to rely upon the employer to 
figure it out, the system is bound to fail. It has a 
fundamental flaw, the same as the 1986 law did.
    Chairman Cornyn. Senator Sessions.
    Senator Kyl. I am sorry. I interrupted Secretary Myers.
    Mr. Gerry. I was going to add on the point of the biometric 
identifier. The cost numbers that I gave you, the estimate we 
have right now is $28-$25 for the card; and we estimate an 
additional $3 per card due to new verification requirements. 
Adding pictures or other biometric information is not a large 
part of the cost.
    On the other hand, as Secretary Baker mentioned, if you use 
a picture, you are going to have downstream updating costs, 
and, of course, those costs will be the $25 part of the $28. 
That is, every time you have to have someone come back in and 
add a picture, of course, you want to be sure that the picture 
is the picture of the person, so you would have to go through 
that process.
    We have been looking at some of these cost issues, as well 
as how often we would have to update the card. Obviously, we 
would have to up date the card even for people who started with 
adult pictures, because over time the value of the biometric 
identifier would decrease.
    Chairman Cornyn. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman and Senator Kyl. 
Both of you have worked very hard to identify the weaknesses in 
the workplace enforcement and have been active in attempting to 
develop a system that will actually work.
    Secretary Baker, you are exactly correct, but I would be a 
little more critical of the Congress than you have been. You 
said they passed in 1986 a bill they thought would work. I 
submit they probably thought it would not work and maybe never 
intended for it to work, at least the interest groups who 
blocked the stronger legislation. The bill was not workable.
    So early on we realized, did we not, that the 1986 law was 
unenforceable as a practical matter? Wouldn't you agree?
    Mr. Baker. I think that by the middle 1990's, at least, it 
was pretty clear that it was going to have major problems.
    Senator Sessions. Now, it strikes me, Mr. Baker, that the 
President takes the oath to enforce the laws of the United 
States and ensures that the laws are enforced. The executive 
branch--I used to serve in the Department of Justice--is the 
branch with the responsibility to enforce the laws. My question 
to you is: Are you coming forward with a comprehensive plan to 
tell this Congress that we are now setting about to deal with 
the problem of immigration? Are you coming forward with a plan 
that would actually work? And do you have one?
    Mr. Baker. We are doing two things. As Assistant Secretary 
Myers said, we are enforcing the law and we are enforcing it in 
creative, new ways, and we will continue to do that. And I 
think that that will demonstrate our resolve and our 
willingness to work within the current system to try to make it 
work. But as you said, we do not have today a civil enforcement 
scheme that works well. The fines are too low, and we cannot 
meet all of the administrative procedures and the knowing 
standard and still have an effective, fast-moving regulatory 
process. We have asked for that.
    Senator Sessions. T.J. Bonner with the Border Patrol 
Officers Association said, ``Absolutely we can create a lawful 
system. You have border enforcement and you have workplace 
enforcement to eliminate the magnet, the jobs magnet.''
    Mr. Baker. Absolutely.
    Senator Sessions. I think he is exactly correct. Would you 
agree with that?
    Mr. Baker. I would. Those are the two critical things.
    Senator Sessions. All right. Then, is the President 
committed to a program that will work?
    Mr. Baker. Yes. We have asked for a lot of new worksite 
enforcement capabilities as well as, as you know, a lot of 
resources for the border, and those are a critical part of this 
comprehensive program.
    Senator Sessions. Secretary Myers, you mentioned Secretary 
Chertoff, and I have been pleased in recent weeks that he has 
begun to speak out in ways that indicate he is serious. I 
thought one of the most helpful things was his statement--I 
believe in a conference call maybe some of the other Senators 
were involved in--in which he said that S. 2611, the 
immigration bill that passed the Senate, with regard to the 
Social Security number question and the ability to identify 
those who have fraudulent numbers and are submitting fraudulent 
numbers, he concluded that is a poison pill and that it would 
not work. Yet when Senator Cornyn objected to it, it was 
ratified anyway by a vote. I voted against it.
    At any rate, the Senate has passed a bill. Would you agree 
that, with regard to enforcement at the workplace through 
utilization of the Social Security number, that will not be 
    Ms. Myers. Well, certainly at this point, Senator Sessions, 
we have such limited access to the data. It is on a very 
limited case-by-case--we have to petition on each particular 
case only after we have articulable facts. Certainly we want 
free and complete access to this data. We think that would 
allow us to target the employers more effectively and do a 
better job.
    I also think, following up on what Assistant Secretary 
Baker said, that one of the mistakes in 1986 is thinking about 
worksite enforcement as simply enforcing 274A, that criminal 
misdemeanor and low fines statute. I think as Senator Kyl 
pointed out, unless we go after document fraud, the document 
fraud rings, unless we go after the other--the alien-smuggling 
rings that bring people into this country to find jobs, unless 
we go after the other parts of the problem, border security and 
interior enforcement, we will not be able to really stem the 
magnet of illegal employment.
    Senator Sessions. Well, the matter is very serious. Mr. 
Chairman, I would just note that we created a wall between CIA 
and FBI that we recognize helped keep us from enforcing the law 
against terrorists, and we removed that wall. We now have one 
between the Department of Homeland Security and Social 
Security. Both of you work for the Government of the United 
States of America and the people, and we need to have that 
information readily shared. Under the bill that we passed, this 
Senate passed, Homeland Security has to ask for the specific 
information in writing, and Social Security is only required to 
respond if the employer that you are inquiring about has over 
100 employees whose names do not match their individual 
taxpayer identifying number and more than 10 employees are 
using the same taxpayer identifying number.
    That indicates to me that Congress, at least, is not very 
alert to what needs to be done. I thank the Secretary for at 
least objecting to that.
    Mr. Chairman, thank you.
    Chairman Cornyn. To summarize what I understand you are 
telling us, Mr. Baker, first of all, I know the President has 
made a speech about the need for effective worksite 
verification, but until today, has the Department of Homeland 
Security actually come forward and asked the Congress to 
embrace the elements of this proposal for an electronic 
employment verification system, to share no-match data, to 
ensure that all legal foreign workers have secure employment 
authorization, and to stiffen the penalties for employers who 
violate those laws?
    Mr. Baker. Well, as you know, we have had a long and 
extensive engagement with the Senate, the Senate Committees, 
but I think we have not made a formal statement to that effect 
before today.
    Chairman Cornyn. Well, suffice it to say these elements 
which you consider essential to effective worksite 
verification, to your knowledge are they present in the current 
Senate bill? Or are these things that need to be added to 
improve it to actually make it workable?
    Mr. Baker. We think the Senate bill needs substantial work 
along those lines.
    Chairman Cornyn. The Senate bill would require all 
employers in the United States to participate in a mandatory 
electronic verification system within 18 months. Right now, 
only 8,600 employers participate in the voluntary Basic Pilot 
verification system. Is 18 months a realistic timeframe?
    Mr. Baker. It is an aggressive timeframe. We were pressed 
pretty hard in the discussions to say what can you do. We have 
the advantage that the current budget proposal that is pending 
before Congress for next year actually includes about $100 
million that is designed to ramp up electronic verification so 
that we could get started and we could have the money beginning 
in September or October.
    So as I say, it is aggressive, but the CIS experts who have 
followed this have looked at it and believe that they can meet 
    Chairman Cornyn. Secretary Baker and Secretary Myers and 
Mr. Gerry, you all are dedicated public servants, and we 
appreciate your service. But the American people feel like they 
were scammed the last time we were on this subject 20 years 
ago. And if we are going to effectively solve this problem, we 
are going to have to regain their confidence. And I know that 
you have a gift for understatement, Mr. Baker, when you said 
that this is very aggressive to get this online in 18 months. 
But I feel very strongly that, unless we are serious about 
making the system work and we actually appropriate the money, 
hire the people, train the people, actually put them in place, 
create the databases, create the secure identification card to 
make this work, we will find ourselves here once again with not 
12 million people illegally in the United States but maybe 24 
million or more. And the list goes on and on. And I for one do 
not want to look back with regret that I did not do everything 
within my power, as someone representing 23 million people, to 
make sure that we do not scam the American people, that we are 
serious with them, we mean what we say, and we are going to do 
what we say.
    Ms. Myers, we talked a little bit about the several hundred 
workers who were arrested in the IFCO case. That is the pallet 
company. And the GAO, the Government Accounting Office, reports 
that officials in 8 of the 12 field offices they interviewed 
told them that the lack of sufficient detention space has 
limited the effectiveness of worksite enforcement. This is an 
issue Senator Kyl and I have focused a lot on during the course 
of our hearings and our joint Subcommittee hearings. But we 
only currently have somewhere around 20,000 detention beds, and 
I know we have tried to add to those, but it seems like we are 
sticking our finger in a hole in a dike trying to hold the 
ocean back, when we had 1.1 million people come across the 
border illegally last year, yet we only have 20,000 detention 
beds. And we say, the Secretary has said he wants to eliminate 
the catch-and-release program, particularly insofar as it 
relates to people coming from countries other than Mexico. But 
that was some 250,000 or so last year, and 20,000 detention 
beds are not enough to hold enough people to make that a 
credible deterrent.
    Can your agency expand worksite enforcement along the lines 
of what you are suggesting here if you do not have sufficient 
detention space?
    Ms. Myers. Well, certainly we will continue to prioritize 
the beds we have. As you noted, we have 20,800 beds. In the 
supplemental, we were just given an additional 4,000 beds 
through the end of this fiscal year. The President's 2007 
budget seeks an additional 6,700 beds.
    What we are trying to do is to use the beds we have more 
efficiently by turning them over quickly, by utilizing things 
such as expedited removal, which we are using along the 
borders, and other tools, such as stipulated removal and 
administrative removal, to send aliens home more quickly.
    One of the things that I have implemented in worksite 
enforcement cases kind of after the IFCO case and looking at 
kind of the large number of worksite cases we have coming up is 
I am requiring my agents, the SACs, to meet with the head of 
their detention and removal local office before they start any 
worksite investigation and see is there a way that we can 
detain these people or do we have a JPATS that can come in, 
that can take these people if they want to stipulate to removal 
right away. That has been very effective in some recent cases 
in using the beds that we have and making sure everyone is 
    Another thing that we are doing and we did in the Fischer 
Homes case is we worked very successfully with the U.S. 
Attorney there and got them to agree to prosecute each and 
every one of the aliens that were arrested in the case on the 
misdemeanor 1325 charge, and that allowed us to borrow the 
Bureau of Prison beds and not use the ICE detention beds, but 
also ensure that we were detaining these aliens before we were 
able to remove them.
    So it certainly is a challenge, but I think we are making 
some good progress.
    Chairman Cornyn. Senator Kyl.
    Senator Kyl. Let me go back to the question of what kind of 
verification system will be used for other than temporary 
workers. First of all, let me ask all of you this question: 
Does it make any sense necessarily to have a standard for 
temporary workers that requires the use of a fraud-proof 
document that in some way identifies the individual but not 
require the same kind of system for people who are seeking 
employment, 12 million of whom we know not to be United States 
citizens? Is there a reason for that double standard?
    Mr. Baker. Let me try to address that. It is not our 
expectation that there will be no identification requirement 
for employees, prospective employees who say, ``Well, I am not 
a temporary worker.''
    Senator Kyl. That is obvious. My question is: Why would you 
have a double standard? When you know there are 12 million 
people who are here illegally and more coming every day, why 
would you have an easier standard for them to be employed than 
for people who voluntarily step forward and say, ``I would like 
to be a temporary worker'' ?
    Mr. Baker. Well, we are working to raise the standards for 
documents. In the longer run, the REAL ID--
    Senator Kyl. Look, Secretary Baker, let's get to the point 
here. You are in charge of policy. Secretary Myers has to then 
figure out a way to enforce that policy. And Mr. Gerry has 
pointed out that for a nice sum of money but, nevertheless, his 
agency can verify the eligibility of people to hold a Social 
Security card and run a system that uses a card for 
    Now, what you have outlined in your statement is a double 
standard. For temporary workers, they have got to have a fraud-
proof document that identifies them. But for everybody else, we 
are going to have a requirement to share no-match data--which 
could be at least a year old, as we have heard--and a mandatory 
electronic verification of the validity of the Social Security 
number system. But I have not heard any other fleshing out of 
what you propose to do to ensure that when I apply for a job, 
you verify that not only is my number valid but that I am who I 
say I am.
    Mr. Baker. We would expect employees to show ID and to 
allow the Secretary to set standards for that ID that would be 
designed to make sure that it is high-quality ID.
    Senator Kyl. Okay. Now, let me just ask you: Since you have 
had that authority in the last several years, is there a 
suggestion that the ID that is required today is adequate or 
that nobody has gotten around to requiring that it be improved?
    Mr. Baker. We think that probably too many documents 
currently are permissible, and we propose in the legislation to 
trim those back. And if the legislation does not pass, we will 
have to take action in--
    Senator Kyl. Well, have you suggested to us what documents 
you are talking about?
    Mr. Baker. Yes, and I do not have that list, but it would 
be a relatively limited list.
    Senator Kyl. Give me the two or three most usable ones.
    Mr. Baker. REAL ID-compliant driver's license, which 
contains a lot of double-checks on IDs, on identity, and also 
on tamper-proof standards; a passport. Now, not everybody has 
those things. Birth certificates are going to have to be 
accepted. Those are the documents.
    Senator Kyl. Okay. So let me just interrupt. We have got 
the same basic thing we have got today except that in 2\1/2\ 
years REAL ID kicked in, and when it does, there may or may not 
be better driver's licenses because there is still no foolproof 
way of the motor vehicle department personnel verifying the 
legitimacy of the person who is asking for a driver's license. 
Not everybody has a passport, as you note. I do not know very 
may employers who are good at detecting counterfeit birth 
    Are we going to improve this situation with what you are 
suggesting here?
    Mr. Baker. I think it will improve it. I recognize that 
there are still gaps in the process that could be exploited. At 
the same time, there are great costs to saying to Americans, 
you are going to have to show up and get in line for a new form 
of ID that is going to be issued by an agency that has not been 
in the ID-issuing business before. Those are heavy costs, and 
not just in Government funds but in the time and energy and 
hassle that it would impose on every American. And so we want 
to be cautious before concluding that that is the only 
    Senator Kyl. Okay. Let me just say that we require that for 
many, many other things in life, including a driver's license 
or to get credit to go down to the store. I mean, people do not 
consider it a huge burden to show some identification purposes 
at a store. It just seems to me that Americans want us to 
ensure that the rule of law is respected and enforced, and if 
they see us coming in with something that is second-best, that 
does not guarantee that people can be found out if they seek 
employment illegally, they are going to consider our efforts no 
better than 1986, as we talked about before.
    Now, you talked about what life was like in 1986. That was 
a big year for me. That is the year I was elected to the 
Congress. So since I did not come here until January 1987, I 
can say I had nothing to do with the 1986 law. But I do have 
something to do with this law, and I will just tell you this: 
We cannot repeat the mistake of 1986. You cannot rely on the 
same kind of documents and expect to get a different result. 
There must be a governmental-issued document that verifies 
employment eligibility, or this system will not work.
    Mr. Gerry has said that they have the ability to do that, 
and I do not think that Americans will consider it too much of 
an imposition when they are seeking a job--that is the only 
time they have to do it. Now, some people seek jobs relatively 
frequently, but most people do not. So on that one occasion 
where you are going to have to get a job or show your 
prospective employer you are eligible, is it too much to ask 
that you get something that looks like a driver's license or an 
old Social Security card, but, in any event, that is fraud-
proof, has your picture on it, and that the employer can verify 
is a properly issued card? It seems to me the American people 
are perfectly willing to bear that kind of expense to get back 
with the rule of law and end this problem of illegal 
    Senator Sessions. I could not agree more with Senator Kyl 
in the fundamental premise that we have got to get it right 
this time. I will not support a bill and I will oppose as 
vigorously as I can any legislation that from a reasonable 
analysis of it, will not work. I am convinced S. 2611 will not 
work, and to the extent to which it has been sold to the 
American people, that is not legitimate.
    Mr. Baker, you mentioned objections from the business 
community. You know, it is kind of like the farmers. I think 
the farmers do not want open borders. There may be some 
lobbyist groups that do. I think some of the lobbying entities 
for businesses seem to favor almost--they do not want any 
restrictions on immigration. But looking at a recent poll from 
the National Federation of Independent Business in April, 76 
percent said they would work with an electronic eligibility 
verification system and would not consider it a burden. That is 
over three-fourths. And over 90 percent of small businesses 
believe immigration is a problem. So I think we would have 
support if we would come up with a system that can work.
    Mr. Gerry, with regard to the Social Security match 
problem, that is, when an employer sends in a Social Security 
number and that number does not match some other number, or 
someone is already using that number I guess would be some of 
the things that show, did I understand you earlier to say that 
the Social Security Administration supports removing this wall 
between you and ICE and that the administration supports 
removing that wall for law enforcement purposes?
    Mr. Gerry. Yes, I did say that, Senator. I think the 
Administration's position is that, it would be appropriate for 
Congress to amend Section 6103 in order to remove the 
restriction that currently prevents us from sharing information 
on no-match letters, except in the extraordinary circumstances 
that Assistant Secretary Myers indicated. But the--
    Senator Sessions. What if it was--would that include all 
immigration offenses, civil and criminal?
    Mr. Gerry. Well, that would be the point, Senator. It would 
include all information that we have. We would provide the 
Department of Homeland Security with whatever information we 
have about the no-match--the no-match letters themselves, and 
the Social Security numbers that did not match. Then it would 
be up to the Department of Homeland Security to decide what, if 
anything, to do with that information. Right now we are 
actually precluded from doing that, unless Homeland Security is 
in the stage that Secretary Myers described earlier where they 
are in an active investigation. In which case, we are now 
allowed in that very limited circumstance to share information.
    The proposal that you are talking about would be to remove 
the barrier so that we could freely share information about no-
match letters.
    Senator Sessions. Secretary Myers, do you think that would 
meet the needs of the Department of Homeland Security and ICE?
    Ms. Myers. Absolutely. That would be a terrific tool. Every 
time we have been able to work with Social Security in the 
middle of an investigation, it has been terrific, and we would 
love to have that information on the front end so we could talk 
    Senator Sessions. It would give you an easy red alert that 
something is wrong in this business if they have a lot of no-
match or improper Social Security numbers.
    Ms. Myers. That is exactly right.
    Senator Sessions. Let me ask you, how many ICE 
investigators are there? And how many do we have working on 
workplace enforcement today?
    Ms. Myers. There are approximately 5,600 ICE agents, and 
then working on--40 percent of them work on various 
immigration-related topics full-time. I would say that it is--I 
cannot give you a precise work-year number. I think it is 
higher than the number that GAO had from a few years ago, but I 
would have to get back to you on that. I would say it is in the 
range--I would have to get back to you with the precise number.
    Senator Sessions. Well, our numbers from the GAO report in 
August of 2005, just less than a year ago, said there were 90 
agents, which is down from 1995, when there were 240. But when 
you figure based on that full-time equivalent evaluation of how 
many hours were actually spent on it, it totaled 65 agents. 
Isn't that an awfully small number if you want the American 
people to think you are serious about workplace enforcement, 65 
for the whole United States of America?
    Ms. Myers. Yes, it is, and the President is proposing some 
additional 171 agents to be dedicated solely to workplace 
enforcement. Since I have been in the job, I have made 
workplace enforcement a priority. As I mentioned earlier, we 
are up in terms of investigations, criminal investigations of 
egregious employers, over 121 percent already over all of 
fiscal year 2005. We are also up 48 percent in terms of 
investigations on critical infrastructure protection sites, and 
this year we have already apprehended and arrested on 
administrative charges almost twice as many individuals, 
illegal aliens, as we did all of last year on worksite 
enforcement. So we are increasing this as a priority, and we 
are also looking at what can we do that is not pure worksite, 
but how can we do document fraud cases more effectively, 
because if the aliens do not have those phony documents, they 
will not be able to bring them in and trick employers who want 
to do the right thing.
    Senator Sessions. Well, the numbers show that the actual 
enforcement actions went to virtually insignificant numbers. 
They were so low in early 2000, and I am glad to see they are 
coming up. In my view there is a tipping point, and we are way 
away from it. But it is not impossible to reach it. And that 
tipping point is the point at which every business in America 
knows that they are likely to be audited and likely to be 
disciplined if they hire people illegally.
    We are not there yet. Doubling from 100 or 50 is not 
significant when you consider the nationwide challenge, so I 
think we need to get serious about it. I think some of that can 
be done through a reallocation of existing resources, and some 
may have to be done with new resources.
    Thank you, Mr. Chairman. My time has expired.
    Chairman Cornyn. Thank you, Senator Sessions.
    We are winding down here with this panel. We have another 
panel. Senator Kyl wanted to send you off with some concluding 
thoughts and maybe requests for additional information. By the 
way, we will leave the record open until 5 p.m. next Monday, 
June 26th, for members to submit additional documents or 
written questions to you, which we would ask for you to 
promptly respond to.
    But, Senator Kyl, I will recognize you.
    Senator Kyl. Just this to close. The bill that the Senate 
passed in Title III does require a way of verifying the 
eligibility of all people who apply for a job that does not 
rely on documents that are currently relied upon. And my 
understanding from the administration's position was that there 
was support for implementing that kind of a system, though the 
suggestion was it would take longer than the 18 months that we 
are seeking here.
    We need clarification of that from the administration, 
because I believe if we simply rely upon the kind of documents 
that we have been talking about and employers are required to 
verify it, we will not have a system that will work.
    And, second, Mr. Gerry, I think it is very important for 
us--and I would like to submit some additional questions to 
you--to find out what is necessary for, including the cost of, 
determining eligibility when you issue a Social Security number 
to an adult to ensure that the individual that receives the 
number is, in fact, legally entitled to be employed, whether 
U.S. citizen, green card holder, other kind of visa, or 
whatever the status might be, because it seems to me that those 
are the critical elements of not only making a system work but 
also providing that it can be enforced. And I think people have 
to know it can be enforced.
    Finally, for Secretary Myers, I am going to do some 
followup questions regarding how many people would be required 
to perform the audits that employers must know are coming, 
because if they do not know that they are going to be audited--
if they know they are going to be audited within a 3- or 4-year 
period for sure, then we are much more likely to have good 
compliance with this.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Secretary Baker and Secretary Myers and 
Commissioner Gerry, thank you very much for being here with us 
today. We appreciate your service.
    If we could have the second panel assume their position at 
the table as soon as they are given an opportunity, we would 
appreciate it.
    Chairman Cornyn. We are pleased to have as a distinguished 
second panel today a number of individuals, and I will 
introduce you individually and turn the floor over for opening 
statements. On this panel we will hear from Mr. Richard Stana, 
Director of Homeland Security and Justice for the Government 
Accountability Office.
    Stewart Verdery is joining Mr. Stana to his left. Following 
his confirmation by the U.S. Senate in 2003, Mr. Verdery served 
as the Assistant Secretary for Homeland Security, and he is 
also an adjunct fellow at the Center for Strategic and 
International Studies.
    Cecilia Munoz is Vice President of the National Council of 
La Raza, the Office of Research, Advocacy, and Legislation. She 
has been actively involved in comprehensive immigration reform, 
and I know we will benefit from her testimony here today.
    Linda Dodd-Major is creator and director of the INS Office 
of Business Liaison. She worked with the attorneys, employers, 
and associations throughout the United States to explain 
regulations, policies, and procedures relating to the 
employment verification process. I know we will benefit from 
your experience.
    Let me at this time turn the floor over to Mr. Stana for a 
5-minute opening statement. We will go down the line, and then 
we will open it up for questions. Thank you.


    Mr. Stana. Thank you, Mr. Chairman, members of the 
Subcommittee. I appreciate the opportunity to participate in 
this hearing today on worksite enforcement and employer 
sanctions efforts. My prepared statement is drawn from our 
recent work on the employment verification process and ICE's 
worksite enforcement program. I would like to summarize it now 
and also briefly discuss our ongoing study of foreign 
countries' programs for guest workers and worksite enforcement.
    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, 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 do not comply with the Act, and these programs 
have remained largely unchanged in the 20 years since passage 
of IRCA.
    The current employment verification process is primarily 
based on employers' review of work authorization documents 
presented by new employees. However, the availability and use 
of counterfeit documents and the fraudulent use of valid 
documents belonging to others have made it difficult for 
employers who want to comply with the employment verification 
process to ensure that they hire only authorized workers. This 
is further complicated by the fact that employees can present 
27 different documents to establish their identity and/or work 
eligibility. Counterfeit documents have also made it easier for 
employers who do not want to comply with the law to knowingly 
hire unauthorized workers without fear of sanction.
    DHS and the Social Security Administration currently 
operate the Basic Pilot Program, which is a voluntary, 
automated system authorized by the 1996 immigration act for 
employers to electronically check employees' work eligibility 
information against information in DHS and SSA data bases. Of 
the 5.6 million employers in the U.S., about 8,600 employers 
have registered to use the program, and about half of them are 
active users. This program shows promise to help identify the 
use of counterfeit documents and assist ICE in better targeting 
its worksite enforcement efforts, particularly if the program 
is made mandatory as envisioned under various legislative 
proposals. Yet, a number of weaknesses exist in the pilot 
program that DHS will have to address before expanding it to 
all employers. They include the inability to detect the 
fraudulent use of valid documents and DHS delays in entering 
information into its data bases. Furthermore, according to DHS, 
additional resources may be needed to complete timely 
verifications under an expanded or mandatory program.
    Turning to worksite enforcement, the low priority given to 
it by both INS and ICE has been a major factor in the 
ineffectiveness of IRCA. In fiscal year 1999, INS devoted about 
240 FTEs to worksite enforcement. It now devotes around 100 
FTEs to address the employment of millions of unauthorized 
workers. After 9/11, ICE focused its worksite enforcement 
resources mainly on identifying and removing unauthorized 
workers from critical infrastructure sites, such as airports 
and nuclear power plants. As a result, the number of non-
critical infrastructure worksite investigations declined. 
Furthermore, the number of Notices of Intent to Fine issued to 
employers for knowingly hiring unauthorized workers or 
improperly completing the employment verification forms dropped 
from 417 in fiscal year 1999 to only 3 in fiscal year 2004.
    In addition to limited resources, a number of issues have 
hampered worksite enforcement efforts. In particular, the 
availability and use of counterfeit documents have made it 
difficult for ICE agents to prove that employers knowingly 
hired unauthorized workers. Further, although guilty employers 
could be fined from $275 to $11,000 for each unauthorized 
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 an effective deterrent.
    ICE recently announced a new interior enforcement strategy 
under which the agency will seek to bring criminal charges 
against employers for knowingly hiring unauthorized workers, 
and ICE has reported an increased number of criminal arrests, 
indictments, and convictions. However, it is too early to tell 
whether this revised strategy will materially affect ICE's 
impact on the millions of unauthorized workers in the U.S. and 
those employers who hired them.
    As I mentioned earlier, we are currently studying foreign 
countries' guest work programs and worksite enforcement 
efforts. Among the issues we are studying are the types of 
guest workers involved and the incentives used to help ensure 
their return to their home countries, the nature and effect of 
regularization policies, foreign countries' experiences with 
integration and assimilation programs, and worksite enforcement 
activities and resources. We plan to report on the result of 
this work later this summer.
    In closing, both a strong employment verification process 
and a credible worksite enforcement program are needed to help 
reduce the employment of unauthorized workers. It is important 
to consider what resources would be needed to make these 
programs successful and how to balance these resources with 
those devoted to border enforcement and to other immigration 
management priorities.
    This concludes my oral statement, and I would be happy to 
address any questions that the Subcommittee may have.
    [The prepared statement of Mr. Stana appears as a 
submission for the record.]
    Chairman Cornyn. Well, thank you very much, Mr. Stana.
    Mr. Verdery.


    Mr. Verdery. Chairman Cornyn, Senator Kyl, Senator 
Sessions, thanks for having me back to the Committee again as 
you consider the most critical issue of how to get this 
employment system correct. I hope you will make sure that 2006 
is not the immigration version of the movie ``Groundhog Day.'' 
We do need to get it right, and I think we have made a lot of 
progress over this year in trying to figure out the best 
employment system that we can come up with.
    I appeared here about a year ago as you were beginning your 
hearings. Now is the time to act. Senator Cornyn, as you said 
in your opening statement, each day that goes by the problem 
gets worse. The issues get more inflamed. The number of workers 
becomes greater. The politics become worse. This cannot be 
solved solely by enforcement or by what you might put on an 
appropriations bill. Now is the time to act. The issues are 
hard, but this is the time to act now that both bodies have 
acted and you have a chance to go to conference, I urge you to 
try to push this over the finish line this year, if you can.
    In that vein, I wanted to ask for your indulgence to put in 
the record an open letter from a number of former Immigration 
and Homeland Security officials asking for a comprehensive 
approach to immigration strategy, which I believe your staff 
    Chairman Cornyn. That will be made part of the record, 
without objection.
    [The letter appears as a submission for the record.]
    Mr. Verdery. In particular, I would mention in terms of 
this comprehensive approach, is the issue of whether we should 
wait to turn on a guest worker program before the employment 
verification system were to come online 18 months or so after a 
bill were to pass. We have systems to vet foreign workers right 
now. They work for things like H1-Bs and other programs. Those 
systems should be used while we build out a better system down 
the line. But if you essentially wait to turn on that foreign 
guest worker program for another 18 months or more, you are 
only adding to the hole. You are having another 18 months of 
workers being attracted to employment and hired and employed 
illegally rather than channeling that flow through legal means.
    Turning to the employment issues, it is hard to imagine a 
situation worse than the current one, and it is not solely the 
fault of the 1986 law. It is a mix of law, of enforcement 
policy, of employer practices, and of legal decisions from the 
courts. But it has been mentioned by prior witnesses and by the 
Senators on the dais that essentially prospective employees are 
allowed to prove their identity by producing a number of 
identification documents which are illegally obtained, easily 
forged, and could be used multiple times. In essence, we have 
tried building an enforcement regime on quicksand.
    Prospective employers who would like to do the right thing 
have been provided no tools to ascertain anything but the very 
worst frauds, and there has been no system to confirm 
employment eligibility. Prospective employers who would like to 
break the law or are willing to look the other way have 
essentially been given a green light due to lack of enforcement 
resources and the fact that INS and DHS announced that 
enforcement activity would be focused on employers in a handful 
of critical infrastructure industries with national security 
implications. And despite the fact that Social Security has an 
elaborate system to vet down to the last penny the amount of 
retirement benefits and tax charges that people owe, that 
system has essentially been of little use to enforcement 
    The American people rightfully are concerned about this 
situation, but they are also willing to accept the reality that 
a new employment verification scheme cannot be expected to be 
foolproof and universally applied from day one. This is not 
missile defense. Some measure of error is to be expected and 
tolerated, so long as it does not result in U.S. citizens being 
denied the right to work.
    Thus, as you begin and continue the process of building the 
electronic employment verification system, the EEVS, I make the 
following recommendations that are more thoroughly discussed in 
the written testimony.
    It should be a phased-in approach. You should go after the 
most critical industries first--aviation, chemical plants, 
other critical infrastructure--as your Senate bill does.
    In terms of employee rights, during the initial phases of 
the EEVS, enforcement activities should err on the side of 
employees claiming to be U.S. citizens before they would be 
terminated. Eventually, over 50 million people are likely to be 
enrolled on an annual basis in the system, and nothing will 
cause support for it to collapse more quickly than horror 
stories of legitimate U.S. citizens being denied the right to 
work because of faulty Government data bases.
    Third, on REAL ID enforcement, the regulation process is 
ongoing at DHS, but the question is: Where is the funding? Are 
we going to stay on track with the regulations and tell States 
what they have to do? And are we going to help States pay for 
this? It is expensive. But we are building an immigration 
system, a voter ID system, and even perhaps a cross-border 
traffic system on REAL ID, and we have to keep it on track and 
have it be adequately funded.
    In terms of biometrics, basing this system on non-biometric 
identifiers, such as Social Security numbers and immigration 
control numbers, may be a good short-term fix, but over the 
long haul you have to nail down the person with a biometric 
identifier. This will be especially helpful for people who are 
likely to be discriminated against because you can tell one 
person from another with surety.
    In conclusion, I would also like to make two other points. 
We have to involve the private sector in building this system. 
The Herculean task of building this system on the back of a 
U.S. Citizenship and Immigration Services agency that is 
already busy is going to require private sector involvement.
    And, last, on fees, asking U.S. employers to pay for this 
beyond what they have to do in their own internal workplaces to 
make themselves into compliance is not right. Employers should 
be ready to comply with laws, whether it be environmental laws, 
tax laws, accounting compliance, immigration laws, but they 
should not have to pay for the Government to build this system. 
This is a core governmental function, and the taxpayers ought 
to pay for it.
    Again, I congratulate you on having the oversight of the 
legislation. There is nothing more critical than getting this 
right. It is the linchpin to this bill, and I hope that you 
will continue your oversight. And good luck during the summer 
on this most important project.
    Thank you.
    [The prepared statement of Mr. Verdery appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Mr. Verdery.
    Ms. Munoz.

                        WASHINGTON, D.C.

    Ms. Munoz. Thank you very much, Mr. Chairman, and thanks 
for the opportunity to come and talk about this very critical 
issue in the immigration reform debate.
    This is perhaps the least discussed element of the bill, as 
you mentioned, and it is arguably the one which is going to 
have the biggest impact in the sense that it is going to affect 
everybody in the United States work force. And I could not 
agree more with all of your assertion that it is essential that 
this provision of employment verification work. It needs to 
work in order to make immigration control more effective so 
that employers can efficiently and accurately verify their 
employees, and it needs to work to ensure that American workers 
and immigrant workers who are fully authorized to work in the 
United States do not experience delays and denial of employment 
as a result of what we do on immigration reform, and that they 
do not experience discriminatory practices.
    The potential for impact on the United States work force is 
enormous, and we have experience on what this is likely to do 
and the problems that may well be caused if we do not address 
them as Congress proceeds with immigration reform.
    We know that U.S. workers are likely to be--could be 
negatively affected if we do not fix problem in the data base, 
if we do not change the incentives that are in the law which 
affect discriminatory practices. And we must not move forward 
unless we are prepared to address the potential for mistakes to 
make sure that, as we are creating avenues for employers to 
effectively verify their employees, we are making sure that 
American workers and immigrant workers who are authorized to 
work do not experience delays or denials of employment.
    We have almost 20 years of experience with employer 
sanctions and nearly a decade of experience with the Basic 
Pilot Program that you mentioned, and in 2002, the Department 
of Justice conducted a study of the Basic Pilot and found that 
a sizable number of workers who were found by the program not 
to be work authorized actually were work authorized, about 4 
percent of the verifications. If you multiply that times 54 
million or so new hires every year, a 4-percent error rate 
means about 2 million American workers every year could face 
denials or delay in employment as a result of Government 
errors. That is an unacceptable level, and it needs to be 
addressed, and building in mechanisms to address it is 
essential to moving forward on this issue.
    For those people who the system said were not authorized to 
work when, in fact, they were, and they or employers attempted 
to address that with the immigration authorities or SSA, 39 
percent of employers reported that SSA never or only sometimes 
returned their calls promptly, and 43 percent reported a 
similar experience with the INS, the precursor to DHS.
    The evaluators also discovered that employers engaged in 
prohibited practices. Forty-five percent of employees surveyed 
who contested the information coming out of the system were 
subject to pay cuts, delays in job training, and other 
restrictions on working, and a full 73 percent of employees who 
should have been informed of work authorization problems in the 
system were not. Those numbers should really give us pause. 
That is something that we need to fix as we move forward 
because the impact on the American work force would be 
    The evaluators also found enormous problems with employers 
not complying with the terms of memoranda of understanding that 
they themselves had signed when they began to participate in 
the Basic Pilot. That includes pre-employment screening, which 
employers are not supposed to do, which essentially could deny 
workers the ability to even find out that there is a data 
problem with their own data in the system and, therefore, 
address the system. It means they lose access to the job, but 
that they are likely to run into a problem the next time they 
apply for a job without an opportunity to address the mistake 
in the data base. These are things employers agreed not to do 
and ended up doing anyway as they participated in the Basic 
    We were pleased to see the amendment by Senators Grassley, 
Kennedy, Obama, and Baucus on S. 2611. We think it improves 
substantially the original Senate language. And the most 
critical protections that are now in the bill which passed the 
Senate include language protecting against discrimination, due 
process protections, and key language protecting privacy. We 
believe all of that needs to be maintained and strengthened as 
we move forward because of these problems that I just outlined.
    I want to highlight two particular concerns: Default 
confirmation. My colleague, Mr. Verdery, also mentioned this as 
well. It is incredibly important in the case that the 
Government data bases are unable to reach a final decision 
within the 30-day timeframe.
    And administrative and judicial review. When there are 
problems in the data for people where the names and the Social 
Security data base do not match up, for example, a lot of 
people in my community have multiple first names, multiple last 
names. I am one of those. The name on my Social Security record 
is different from the name that is on my W-2, and that is a 
very common issue. That could lead to employment problems. If 
that, in fact, leads to denial and delay of employment, I would 
hope that somebody like me would have the ability to address 
that expeditiously, certainly before I lost wages, the ability 
to support my family.
    We would also ask, just briefly, as we move forward with 
this legislative process, that we talk about a phase-in, again 
described by my colleague, Mr. Verdery, measures to ensure the 
accuracy of the data and to improve expeditiously the accuracy 
of the data before we subject the entire work force to 
verification under this system.
    Changes and greater efficiency in the issuance of 
immigration documentation. Immigrants workers, in particular, 
who are authorized to work should have an employment 
authorization document, but we know that thousands of them 
experience delays in renewing those documents. We have examples 
from all around the country of people experiencing delays in 
getting driver's licenses, delays in employment, because even 
though they are, in fact, authorized to work but because the 
authorities have not gotten their documents or their renewals 
on time. That affects people's ability to feed their families. 
It is something that we should address.
    Enforcement of labor laws ultimately is critical to the 
success of the overall effort and sufficient resources for the 
agencies to clean up their data and implement this swiftly and 
efficiently are essential.
    So, in conclusion, Mr. Chairman, we recognize that worksite 
verification is an essential element of the immigration debate, 
and we are prepared to play a constructive role in making sure 
that the policy is effective. But it would be morally and 
substantively disastrous to put a system in place without 
addressing serious flaws which have been identified by 10 years 
of experience with the Basic Pilot and 20 years of experience 
with employer sanctions. We believe there is ample evidence of 
what we need to do. We believe that we have the capacity to do 
it, and we would urge you to look at those issues as we move 
this forward.
    Thank you.
    [The prepared statement of Ms. Munoz appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Ms. Munoz.
    Ms. Dodd-Major.

                        WASHINGTON, D.C.

    Ms. Dodd-Major. Good afternoon, Senators. Thank you for the 
opportunity to address these issues today. I also look forward 
to doing that. I also consider it extremely important. I do not 
disagree with--
    Chairman Cornyn. Would you double-check to make sure your 
microphone is on?
    Ms. Dodd-Major. Okay. Now the light is on.
    Chairman Cornyn. Thank you very much.
    Ms. Dodd-Major. I do not disagree with what my colleagues 
on both panels have said. However, I probably of all of the 
panelists have more hands-on experience with the I-9 process. 
Not only did I direct and run the Office of Business Liaison, 
but I spent many years almost embedded, as we know it today, 
into many worksite operations, into audits, into raids, just as 
the media representatives do in the Middle East now. I did that 
so that I could better explain to employers who wanted to 
comply what the law expected of them, what the consequences 
could be so that they could be more likely to--so they could be 
persuaded toward voluntary compliance. I also was in charge of 
the I-9 regulation at INS for years. I also was the chairperson 
of the interagency task force on birth certificate 
    So in terms of all these documents, in terms of the 
process, I have a lot of experience. I also have a different 
    First of all, with respect to the new enforcement 
priorities, most employers are not engaged in criminal 
activity. Furthermore, most undocumented workers are not 
working for criminal employers. In fact, not only are most 
employers not engaged in criminal activity, they are furious 
that the difficulties they have had with the I-9 process have 
not resulted in any enforcement that is meaningful to them. 
Those who try to get assistance do not get it. Those who call 
up to try to get removals of undocumented aliens do not get 
responses. And they feel that all of their efforts--and I am 
talking now of the huge percentage of compliance-minded 
employers. They feel that their efforts have been useless. They 
feel--and I think it is a justified position for them to take--
that they have been victims in this process. Yes, they are 
often portrayed in the media and elsewhere as being addicted to 
low-cost labor. They will do anything for cheap labor. That is 
not true for most employers. In the private sector, I represent 
three Fortune 100 level companies that are in industries that 
have historically attracted undocumented workers. They have 
tried their absolute best to keep undocumented workers out of 
the workplace. Two of them participate in the Basic Pilot at 
all of their worksites. Even that, for reasons that I will 
discuss, has not worked for them.
    Furthermore, to say that the penalties included in IRCA 
were not deterrents to undocumented employment is an 
understatement. The worst consequences of worksite enforcement 
were not penalties. They were not money damages. They were the 
business consequences of--now, they do not do this anymore, but 
what they were doing in the late 1990's were raids on the work 
force. They were doing it at an Indian restaurant in Houston. 
They were doing it at a Denny's-type restaurant in Scottsdale. 
All of these I participated in. I did not participate as a law 
enforcement officer, but I saw what happened firsthand. They 
were doing it in food-processing plants, in meat-packing 
plants. And if you think when they did those raids that all of 
those undocumented workers and certain legal workers who had 
fear of the immigration system exited calmly from those 
workplaces, you are wrong. Every exit and entry was jammed with 
people trying to leave. There were raw materials ruined. And 
those employers faced sometimes months and expenses of maybe 
$1,500 to $2,500 apiece trying to replace those workers, all 
under circumstances where their Forms I-9 were absolutely 
flawless. In other words, the system did not work for them. And 
yet when they called for assistance--now, in the early 1990's, 
employers used to be able to call on local INS offices who 
would help them verify name and number matches for a number. 
After Salinas v. Pena--that was a lawsuit in the early 1990's--
there was a consent agreement after which Deputy Commissioner 
of INS Chris Sale prohibited all--and there were reasons for 
this. I am not saying there were not--any investigations 
offices from providing that type of assistance to employers. 
After that, they basically had nothing.
    Not only that, but contemporaneously came out certain GAO 
reports regarding discrimination that had resulted admittedly 
from overzealous following of the I-9 requirement and what has 
come to be known as ``document abuse.'' I think that there is 
far less evidence that that kind of thing is going on today 
than there was then. Nevertheless, the resources that had been 
dedicated to employer outreach were transferred more or less to 
antidiscrimination, with the result that the message that 
employers got was thou shalt not discriminate outside of the 
context of the regular I-9 compliance. They were told accept 
any document that might be genuine and might belong to that 
person, or you may face a lawsuit for discrimination.
    Some other issues that I want to highlight--they are 
fleshed out in more detail in my written statement--are some 
other parts of the process that are largely overlooked.
    First, there is an employee attestation section in the Form 
I-9. It is Section 1. It is there where the employee states 
under penalty of law, signed under penalty of perjury, ``I am 
an authorized worker.'' This is unfortunately--or maybe 
fortunately, I do not know. It depends on your perspective. The 
I-9 is seen as a document-driven and a number-driven process. 
There is a process during which and at which point employees 
themselves, with their personal signatures, have to attest to 
their current work authorization. That part of the process has 
been almost completely overlooked. When you do audits of I-9s, 
you often see that part not completed, and there has been very 
little followup and enforcement against individuals who have 
provided, intentionally provided false data, for whatever 
personal reasons they have, that have gotten them into the work 
force and have not seen the consequences.
    Employers who have experienced consequences themselves try 
to get enforcement to come in and pick up people and have seen 
those people just move on to their competitors have a very, 
very difficult time with this process.
    There is another thing that is not addressed in the I-9 
rule, and that is self-employment. A person who is an 
independent contractor does not have to complete an I-9, which 
has led to a widespread misimpression that if there is not an 
employer-employee relationship between the individual 
performing services and the payor for services, that that 
person can work whatever way he pleases.
    Now, while those people may not be working for some of 
these criminal employers where there are worksite enforcement 
actions under the current enforcement model, they are competing 
with U.S. workers, and that, after all, was the purpose why 
IRCA was passed in the first place.
    Discrimination. There is a lot that we could say here, but 
I will say that I have never once in any discussion with any 
employer or any organization ever heard--and we are talking 
about tens and tens of thousands--ever once heard anyone do 
anything but want to get more workers. Think about it. If an 
employer is in a labor shortage area, they do not want to 
discriminate against workers. As a matter of fact, in some 
cases they feel the I-9 process hampers them from getting 
workers that they could otherwise get and who have proven to be 
very good workers.
    I do not think discrimination--there may have been 
disproportionate impact on certain ethnic groups, but that may 
be more because of the huge volume of those ethnic groups in 
the workplace than it is a reflection of discrimination.
    Electronic verification.
    Chairman Cornyn. Ms. Dodd-Major, could I get you to 
    Ms. Dodd-Major. Yes, yes.
    Chairman Cornyn. Unfortunately, we are under a little bit 
of a time constraint.
    Ms. Dodd-Major. Okay. This is the end. Electronic 
verification. The problem with this, as has been pointed out by 
other panel members is that it has driven fraud or exacerbated 
the movement of fraud from use of fake documents to use of 
false documents--fake being counterfeit, false being falsely 
    This is a very slippery slope that is not going to be 
improved unless, as has been pointed out also by several of the 
Senators, there is a biometric link or there is a tamper-proof 
document, not just for the alien workers but for U.S. workers 
as well. Now, whether this is a passport or some other secure 
document for U.S. workers, such as the dreaded national ID 
card, I do not know. But without that, the Basic Pilot is going 
to continue to give false results even if it can be 
administered on a nationwide basis.
    Thank you.
    [The prepared statement of Ms. Dodd-Major appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Ms. Dodd-Major. Your testimony 
has been enormously helpful so far, and my only regret is that 
Senator Sessions and I both have to go to an Armed Services 
meeting and a classified briefing at 4 o'clock, and so we are 
going to have to cut this a little bit short--shorter than we 
would otherwise. But we hope you will understand and will also 
allow us to send you questions in writing that will allow us to 
followup on some of the excellent testimony you have given us.
    Let me ask Mr. Verdery--and this also touches on some of 
the other testimony we have heard here in terms of worksite 
verification. It seems like there is a proliferation of 
documents that the Federal Government is mandating, whether it 
is a REAL ID or the Western Hemisphere Initiative travel 
documents, where people in South Texas, in order to go across 
the border and come back, they are going to have to have a 
passport or some equivalent of that, to, I know, because it is 
so popular in South Texas, the laser visa that Mexican visitors 
use under the US-VISIT program, and I know you have helped 
initiate a biometric identifier.
    You mentioned a phased-in program. Is it possible for the 
Federal Government to come up with some means to take current 
documents that are in place or going to be coming in place soon 
to use that as some means of verifying eligibility until such 
time as we can come up with a $9.5 billion appropriation to 
give everybody a new Social Security card?
    Mr. Verdery. Well, it is a very difficult question. The 
problem is, as you mentioned, I am not sure anybody is really 
looking for the solution. There are four things going on at the 
same time: the Western Hemisphere requirement for travel back 
into the country for U.S. citizens and Canadians; the US-VISIT 
program itself, where they are going to enroll people leaving 
and going; REAL ID; and then a guest worker program. They all 
have to work together in some way.
    I do think that you can have an interim step. The REAL ID 
would essentially have to suffice for people claiming to be 
U.S. citizens, and then you would have a foreign worker card, 
as the President has said, which is essentially already a 
tamper-resistant, biometrically based visa for foreign workers.
    The real question is people who are not U.S. citizens but 
claiming to be, as Senator Kyl was getting at quite a bit, and 
that is where REAL ID I think can help a bit. Even if the EEVS 
does not work perfectly, essentially you have to trust in the 
card, and you have to make sure that works.
    I do think that the next generation has to be a 
biometrically based system so you are actually tying the person 
to the card to a data base. If that is a national ID card 
system, so be it. But I think that is the only way you 
essentially can tie the person to the card and the person to a 
watchlist check and a data base check.
    Chairman Cornyn. Mr. Stana, until such time as we are able 
to figure out and to actually solve the identification card 
issue, do you agree that we could make great strides forward in 
bringing down the wall between the Social Security 
Administration and the Department of Homeland Security and 
other law enforcement officials by allowing some sharing of the 
no-match list?
    Mr. Stana. Yes, there is no question that there are 
opportunities to get valuable data from the Earnings Suspense 
File, and the IRC Section 6103 limitations could be addressed 
to enable proper use. Of course, you also have privacy 
concerns. You do not want another laptop somewhere in suburban 
Washington with 13 million names on it from the ESF. There have 
to be appropriate safeguards.
    But I would also say this: Let's not kid ourselves. 
Technology is not a panacea here. Without the proper procedures 
and a sufficient number of resources to followup with employers 
and employees alike, this whole system that we are proposing 
could face some real challenges. So you have to have all three. 
You have to have the technology, you have to have the people, 
and you have to have the processes that everyone understands 
and everyone knows how to use.
    Chairman Cornyn. And, Ms. Munoz, I take it you would agree 
that one of the best protections we would have to some means to 
avoid either unintentional or intentional discrimination 
against lawful workers would be some type of verifiable card 
that would eliminate discretion on the part of the employer.
    Ms. Munoz. Well, it is a mixed bag. I think experience 
tells us it is a mixed bag. On the one hand, you are right that 
it is possible that having a single document that everybody in 
the country would have and having some confidence that that 
document is reliable would have some good impact on some of the 
discriminatory practices out there. I will tell you that 
experience in our community also leads to a real fear that it 
could become a document that a lot of us have to show in a lot 
of other contexts as well and that only some of us are going to 
be asked to show in the same way that my former boss, the 
former president of my organization, who grew up in a border 
town in Texas, carried a card issued by the Border Patrol as he 
was growing up so that he could prove that he belonged in his 
own community.
    There are some concerns that may be eased by such a 
document and other concerns that would be raised by such a 
document, and we need to be mindful of that, if we move in that 
direction, to make sure that we do not create new forms of 
    Chairman Cornyn. Ms. Dodd-Major, perhaps more than anyone 
else, you have had some real-life experience here, and I just 
have to ask you: Given the difficulties in both getting 
Congress to respond in a comprehensive way and in a way that 
actually works, given the political resistance of some in the 
employer community about sanctions or other ways to actually 
enforce the worksite verification requirement, and just given 
the difficulties of making all these moving pieces come 
together in some smoothly running, efficient machine, are you 
optimistic or are you pessimistic about Congress' ability to 
actually learn from its mistakes in the past and actually make 
the system work?
    Ms. Dodd-Major. Oh, boy, that is a hard question.
    Chairman Cornyn. I knew you were up to it.
    Ms. Dodd-Major. I think that the pressures from the 
competing sides are so difficult and in a political year the 
advantages are so likely to cancel one another out politically 
that the incentive to move this forward as a matter of public 
policy is--and there are different stakeholders here. There are 
employers. There is the general public. There are all those 
aliens who have never had opportunities here before. And I am 
not confident that all of those things can be brought together 
to pass legislation now.
    Chairman Cornyn. Well, you may be right. I hope you are 
not. I remain optimistic. And one thing, depending on your 
point of view, whether you are optimistic or less than 
optimistic about our chances, from my perspective doing nothing 
is not an option. And this is the responsibility that our 
constituents have sent us up here to undertake to try to solve 
difficult problems. And I recognize as much as anyone the 
upcoming elections, but there are always going to be elections 
in the future for those who hold office or those who aspire to 
public office. And I just believe that this is absolutely 
critical for us to deal with.
    We can go back to our voters and explain to them why we 
voted the way we did and why we did what we did. And if we do 
not have a good explanation, then they know what to do with 
that. If we do, then I think those who try to do their best and 
come up with a realistic solution will be rewarded accordingly.
    Unfortunately, due to the time constraint of this 
conflicting hearing, Armed Services hearing, we are going to 
have to conclude there, but please rest assured that your 
written testimony and your oral summary has been enormously 
helpful, and we are not going to let you off the hook. We are 
going to stay in touch with you and ask you more questions and 
ask you to contribute further in this effort. Thank you so 
    We will leave the record open until 5 p.m. on Monday, June 
26th, for members to submit additional documents to the record 
or ask additional questions in writing of the panelists.
    This hearing is adjourned.
    [Whereupon, at 4:05 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record