[Senate Hearing 109-1060]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1060
IMMIGRATION ENFORCEMENT AT THE WORKPLACE: LEARNING FROM THE MISTAKES OF
1986
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HEARING
before the
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP
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
U.S. GOVERNMENT PRINTING OFFICE
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
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESSES
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
IMMIGRATION ENFORCEMENT AT THE WORKPLACE: LEARNING FROM THE MISTAKES OF
1986
----------
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.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
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
laws.
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.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
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.
STATEMENT OF STEWART BAKER, ASSISTANT SECRETARY FOR POLICY
DEVELOPMENT, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON,
D.C.
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
ways.
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
reflect.
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
minute.
Ms. Myers, would you please give us your opening statement?
STATEMENT OF JULIE L. MYERS, ASSISTANT SECRETARY, IMMIGRATION
AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY,
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.
STATEMENT OF MARTIN H. GERRY, DEPUTY COMMISSIONER FOR
DISABILITY AND INCOME SECURITY PROGRAMS, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
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
far.
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
investigation.
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
with.
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.
Baker?
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
employment?
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
effective?
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
it.
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
detained.
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
verification.
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
certificates.
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
solution.
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
immigration.
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
to--
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.
[Pause.]
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.
STATEMENT OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND
JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON,
D.C.
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.
STATEMENT OF C. STEWART VERDERY, JR., FORMER ASSISTANT
SECRETARY OF HOMELAND SECURITY, AND ADJUNCT FELLOW, CENTER FOR
STRATEGIC AND INTERNATIONAL STUDIES, WASHINGTON, D.C.
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
has.
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
authorities.
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.
STATEMENT OF CECILIA MUNOZ, VICE PRESIDENT, OFFICE OF RESEARCH,
ADVOCACY, AND LEGISLATION, NATIONAL COUNCIL OF LA RAZA,
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
substantial.
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
Pilot.
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.
STATEMENT OF LINDA DODD-MAJOR, FORMER DIRECTOR OF OFFICE OF
BUSINESS LIAISON, IMMIGRATION AND NATURALIZATION SERVICE,
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
standardization.
So in terms of all these documents, in terms of the
process, I have a lot of experience. I also have a different
perspective.
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
conclude?
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
used.
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
discrimination.
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
much.
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
follows.]
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