[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
PROBLEMS IN THE CURRENT EMPLOYMENT VERIFICATION AND WORKSITE
ENFORCEMENT SYSTEM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 24, 2007
__________
Serial No. 110-17
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts LOUIE GOHMERT, Texas
LINDA T. SANCHEZ, California
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
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APRIL 24, 2007
OPENING STATEMENT
Page
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 3
WITNESSES
Mr. Jonathan R. Scharfen, Deputy Director, United States
Citizenship and Immigration Services, Department of Homeland
Security
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. John Shandley, Senior Vice President Human Resources, Swift &
Company
Oral Testimony................................................. 35
Prepared Statement............................................. 38
Mr. Stephen W. Yale-Loehr, Miller Mayer, LLP, Adjunct Professor,
Cornell Law School
Oral Testimony................................................. 42
Prepared Statement............................................. 44
Mr. Marc Rosenblum, Ph.D., Department of Political Science,
University of New Orleans
Oral Testimony................................................. 57
Prepared Statement............................................. 60
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Chairwoman,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 2
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 4
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 85
APPENDIX
Material Submitted for the Hearing Record
Letter from Jonathan R. Scharfen, Deputy Director, United States
Citizenship and Immigration Services, Department of Homeland
Security to the Honorable John Conyers, Jr., Chairman,
Committee on the Judiciary..................................... 92
INS Basic Pilot Evaluation Summary Report submitted to the U.S.
Department of Justice, Immigration and Naturalization Service,
prepared by the Institute for Survey Research, Temple
University, and Westat on January 29, 2002..................... 93
Interim Findings of the Web-Based Basic Pilot Evaluation
submitted to the U.S. Department of Homeland Security, prepared
by Westat in December 2006, and accompanying letter from
Jonathan R. Scharfen, Deputy Director, United States
Citizenship and Immigration Services, Department of Homeland
Security to the Honorable Zoe Lofgren, Chairwoman, Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 145
``Alternative strategies for preventing false negatives and
identity theft problems iin an electronic eligibility
verification system'' by Marc Rosenblum, Ph.D., Department of
Political Science, University of New Orleans................... 265
PROBLEMS IN THE CURRENT EMPLOYMENT VERIFICATION AND WORKSITE
ENFORCEMENT SYSTEM
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TUESDAY, APRIL 24, 2007
House of Representatives,
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:04 a.m., in
Room 2226, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Berman, Jackson Lee,
Delahunt, Sanchez, Conyers, King, Gallegly, and Gohmert.
Staff present: Ur Mendoza Jaddou, Chief Counsel; J. Traci
Hong, Majority Counsel; Benjamin Staub, Professional Staff
Member; and George Fishman, Minority Counsel.
Ms. Lofgren. This hearing of the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order.
I would like to welcome the Immigration Subcommittee
Members, our witnesses, and members of the public who are here
today at the Subcommittee's fourth hearing on comprehensive
immigration reform issues.
At our first hearing at Ellis Island in the shadows of the
Statue of Liberty and in the Great Hall where 12 million
immigrants were processed in a controlled, orderly and fair
manner, we heard from witnesses who explained why our Nation
needs comprehensive immigration reform.
Our border patrol chief, David Aguilar, said we need
comprehensive immigration reform to secure our borders.
Demographer Dowell Myers said comprehensive immigration reform
is critical to prepare for the declining birthrates and aging
population. Economist Dan Siciliano explained that immigration
is good for the economy, good for jobs, and a critical part of
our Nation's prosperity. Historian Daniel Tichenor told us that
each new wave of immigrants has been scorned by critics only
later to be among our most accomplished and loyal citizens.
At our second and third hearings last week, we learned
about the shortfalls of the 1986 and 1996 immigration
legislation to ensure that we do not repeat the mistakes made
in those last two reforms of immigration law.
One theme that arose in both hearings is the inability of
the current paper and electronic systems to accurately verify
the immigration status and employment eligibility of workers in
the United States.
Since one of the main reasons for undocumented immigration
is the lure of jobs in the United States, it is imperative that
comprehensive immigration reform include an employment
verification system that prevents employment of unauthorized
immigrants.
We will learn today that the employment verification
systems created in 1986 and 1996 fail to meet that goal.
In our second hearing on unemployment verification,
currently scheduled on Thursday, we will look for some of the
potential solutions that will help end illegal immigration.
Employment verification is the one component of
comprehensive immigration reform that will affect all workers
in the United States, including U.S. citizens, lawful permanent
residents, and others legally authorized to work in the United
States.
Thus it is imperative that Congress ensure that any
employment eligibility verification system enacted as part of
comprehensive immigration reform is designed and implemented
properly.
I look forward to hearing from our witnesses today, who
will each provide an explanation of the problems of our current
employment verification system, each from their own
perspective, including the perspective of employers who
attempted to follow the law but still got caught up in an
enforcement action by Immigration Customs and Enforcement.
With these problems identified, we can move to our next
hearing to exam proposed solutions for an employment
verification system in comprehensive immigration reform.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
I would like to welcome the Immigration Subcommittee Members, our
witnesses, and members of the public that are here today for the
Subcommittee's fourth hearing on comprehensive immigration reform.
In our first hearing at Ellis Island, in the shadow of the Statue
of Liberty and in the Great Hall where 12 million immigrants were
processed in a controlled, orderly, and fair manner, we heard from
witnesses who explained why our nation needs comprehensive immigration
reform.
Our Border Patrol Chief, David Aguilar, said we need
comprehensive immigration reform to secure our borders.
Demographer Dowell Myers said comprehensive immigration
reform is critical to prepare for a declining birth rate and aging
population.
Economist Dan Siciliano explained that immigration is
good for the economy, good for jobs, and a critical part of our
nation's prosperity.
Historian Daniel Tichenor told us that each new wave of
immigrants has been scorned by critics only later to be among our most
accomplished and loyal citizens.
In our second and third hearings last week, we learned about the
shortfalls of 1986 and 1996 immigration legislation to ensure that we
do not repeat the mistakes made in those last two reforms of
immigration law. One theme that arose in both hearings was the
inability of the current paper and electronic systems to accurately
verify the immigration status and employment eligibility of workers in
the U.S.
Since one of the main reasons for undocumented immigration is the
lure of jobs in the U.S., it is imperative that comprehensive
immigration reform include an employment verification system that
prevents employment of unauthorized immigrants. We will learn today
that the employment verification systems created in 1986 and 1996 fail
to meet that goal. In our second hearing on employment verification on
Thursday, we will explore some of the potential solutions that will
help end illegal immigration.
Employment verification is the one component of comprehensive
immigration reform that will affect all workers in the U.S., including
U.S. citizens, lawful permanent residents, and others legally
authorized to work in the U.S. Thus, it is imperative that Congress
ensure that any employment eligibility verification system enacted as a
part of comprehensive immigration reform is designed and implemented
properly.
I look forward to hearing from our witnesses today who will each
provide an explanation of the problems of our current employment
verification system, each from their own perspective, including the
perspective of an employer who attempted to follow the law but still
got caught up in an enforcement action by Immigration Customs and
Enforcement.
With these problems identified, we can then move to our next
hearing to examine proposed solutions for an employment verification
system in comprehensive immigration reform.
Ms. Lofgren. I would now recognize our distinguished
Ranking minority Member, Mr. Steve King, for his opening
statement.
Mr. King. Thank you, Madam Chair, and thank you for holding
this hearing.
In the Immigration Reform and Control Act, known as IRCA,
in 1986, Congress tried to end the job magnet that drew illegal
aliens to the United States by making it unlawful to knowingly
hire illegal aliens and by requiring employers to check the
documents of new employees.
In the mid-1990's, failure of the Federal Government to
enforce employer sanctions that were set out in IRCA and the
failure of the Employment Eligibility Verification provisions
in IRCA to help curb the illegal employment of aliens--all
those failures led to calls for a better way to ensure that
employers hire only citizens and aliens eligible to work in the
United States.
In 1996, the Illegal Immigration Reform and Immigration
Responsibility Act answered those calls by establishing the
Basic Pilot Employment Eligibility and Verification Program.
That Basic Pilot program allows employers to check workers'
Social Security and Alien Identification Numbers against Social
Security Administration and DHS workers in order to ensure that
new hires are genuinely eligible to work.
The program is voluntary for employers in all 50 States and
is now used by over 15,500 employers, one of whom will be
before us today.
When using the Basic Pilot program, an employer has 3 days
from the time they hire an employee to contact the Federal
Government by Internet to determine the validity of the
employee's Social Security Number or Alien Identification
Number. The numbers are checked against Social Security
Administration's database and DHS database.
Within 3 days, the employer will receive a confirmation
that the employee is eligible to work or a tentative non-
confirmation indicating that the work eligibility of the
employee cannot be validated.
Once a tentative non-confirmation is received, the employee
can request secondary verification and contact DHS or SSA to
determine how government records differ from the information
submitted by the employee.
DHS has another 10 days in which to further investigate the
discrepancy, after which the employer will receive a
confirmation or a denial of work eligibility number. If the
employer receives a final non-confirmation, they can then fire
the employee.
The Basic Pilot program has been remarkably successful. A
study found that an overwhelming majority of employers
participating found the Basic Pilot program to be an effective
and reliable tool for employment verification. In fact,
according to a recent National Federation of Independent
Business survey of its members, 76 percent said use of a phone
or Internet employment verification system would be a minimal
burden or not a burden at all.
Last Congress, this House passed legislation that would
have made it mandatory. The Basic Pilot is not perfect. In
fact, a recent high-profile case highlights that a business's
use of Basic Pilot does not ensure that it is not hiring
illegal immigrants because the program is vulnerable to
identity theft.
Swift & Company, whose representative, Mr. Shandley, will
be testifying at this hearing, has participated in the Basic
Pilot program since 1997. However, last December exactly 1,282
of its employees were arrested by the Immigration and Customs
Enforcement during a worksite enforcement action. ICE suspected
a pattern of identity theft and conducted the enforcement
action. Many of the Social Security numbers submitted by Swift
employees were genuine but had been stolen or purchased and
were being used illegally.
So, there is no doubt that Basic Pilot needs some tools to
deal with identity theft. DHS needs to have access to Social
Security Administration data so that it can investigate
situations in which a single Social Security number was
submitted more than once for the same employer but where a
number was submitted by multiple employers in a manner that
suggested fraud.
The vast majority of American businesses want to hire legal
workers. And most would like a quick and easy system to verify
employee work eligibility. The Basic Pilot program holds out
the promise that it can meet these goals.
I look forward to the testimony and hope we can minimize
the burden and still provide for a more effective Basic Pilot
program.
Madam Chair, I thank you, and I yield back the balance of
my time.
Ms. Lofgren. Thank you.
Mr. King, Mr. Conyers will join us later and will be able
to give us his opening statement at that time. I don't know if
Mr. Smith is expected, but we would extend the same courtesy to
him.
We have two panels today. The first panel is by himself.
And I would ask that other Members submit their statement
for the record so that I can introduce Deputy Director of U.S.
Citizenship and Immigration Services Jonathon Scharfen.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
Today marks the third hearing in a series of hearings dealing with
comprehensive immigration reform. This subcommittee previously dealt
with the shortfalls of the 1986 and 1996 immigration reforms, and a
consistent theme throughout both hearings was the difficulty that
employers encountered when they attempted to verify that potential
foreign employees have work authorization. Making a mistake could
subject an employer to fines or more serious sanctions for employing a
foreign worker who does not have work authorization. Some employers
avoid that risk by simply refusing to hire foreign-looking employees.
Therefore, as Members of the 110th Congress we must ensure that we find
practical solutions to fixing the employment eligibility verification
system.
history
In 1986 Congress passed the Immigration Reform and Control Act of
1986 (IRCA). Congress' intent was to create a system that could verify
the employment eligibility of potential foreign workers, and impose
sanctions on employers from knowingly hire workers who do not have
employment authorization. that were not authorized. IRCA established
the I-9 Form employment eligibility verification system. Under this
system a potential foreign employee has to present valid documentation
to establish his identity and his authorization to work in the United
States, such as a U.S. passport, permanent resident card, driver's
license, or Social Security card.
However, with any system relying on documents the potential for
fraud was great, and this became evident in the years after the
legislation was enacted. The prevalence of fraudulent documents, either
counterfeit or real but used fraudulently, makes it difficult for
employers to determine who has legal authorization to work in the
United States. Also, employers have to be mindful against
discrimination during the verification process. In addition, the
executive branch has not made a sustained, determined effort to enforce
employer sanctions.
basic pilot program
In reaction to an ongoing problem with the employment of
undocumented workers that was only exasperated by the shortcomings of
IRCA, Congress created the Basic Pilot Program (BPP). The BPP involves
verification checks of the Social Security Administration (SSA) and
Department of Homeland Security (DHS) databases, using an automated
system to verify the employment authorization of all newly hired
employees. Participation in this program has been voluntary, and free
to participating employers. The intent of the BPP was to remove the
guesswork from document review during the I-9 process; allow
participating employers to confirm employment eligibility of all newly
hired employees; improve the accuracy of wage and tax reporting;
protect jobs for authorized United States workers. The program has been
available to all employers in the States of California, Florida,
Illinois, New York, and Texas since November 1997 and to employers in
Nebraska since March 1999. The program originally expired in November
2001, but was extended to November 2008 thru the Basic Pilot Program
Extension and Expansion Act of 2003.
The Pilot Program has had numerous problems ranging from inaccurate
and outdated information in the DHS and SSA databases, misuse of the
program by employers, and a lack of adequate privacy protections. In
2002, the Government Accountability Office (GAO) issued a report
stating, ``existing weaknesses in the program, such as the inability of
the program to detect identity fraud, delays in entering data into DHS
databases, and some employer noncompliance with pilot program
requirements, could become
more significant and additional resources could be needed if
employer participation in the program greatly increased or was made
mandatory.''
Therefore, as we move forward in this immigration debate, we need
to adhere to practicality. We can not allow emotion, and our ambition
to cater to all of the interested parties to cloud our view.
Comprehensive immigration reform must include a viable employer
sanctions system in addition to creating an opportunity for
undocumented workers to earn legal status, and securing our borders. In
the end, this debate is really about the American worker and the
American family, and what we are doing to protect them, because when we
protect the American worker from wage and workplace exploitation we
protect everyone in pursuit of the American dream.
Ms. Lofgren. Prior to assuming his post at USCIS, Mr.
Scharfen served for 25 years in the U.S. Marine Corps, retiring
in 2003 at the rank of colonel. Mr. Scharfen is no stranger to
the House of Representatives, however, where he served as both
Chief Counsel and Deputy Staff Director for the House
International Relations Committee following his military
service.
Mr. Scharfen received his bachelor's degree from the
University of Virginia, his JD from the University of Notre
Dame, and his LLM from the University of San Diego.
Mr. Scharfen, your written statement will be made part of
the record in its entirety, so I would ask that you now
summarize your testimony in 5 minutes or less.
And to help you stay within the time, there is a timing
light at your table. When 1 minute remains, the light will
switch from green to yellow, and then to red when the 5 minutes
are up.
And I would let all the Members who are present know that
our mikes are live at all times.
Mr. Scharfen, if you would begin.
TESTIMONY OF JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF
HOMELAND SECURITY
Mr. Scharfen. Thank you very much, ma'am. I am grateful for
this opportunity to appear before the Subcommittee to discuss
the Employment Eligibility Verification program administered by
United States Citizenship and Immigration Services, USCIS.
Previously known as the Basic Pilot program, this unique
program provides employment eligibility information on newly
hired employees to more than 16,000 participating American
employers.
Any company anywhere in America can try the Employment
Eligibility Verification System, EEVS, and use it for free over
an easy-to-use government web site. EEVS is a valuable tool
that helps employers comply with immigration law while also
strengthening worksite enforcement.
This year, the program is growing by over 1,000 employers
every month. We project that the EEVS system will verify over 3
million new hires this fiscal year at more than 71,000
worksites.
Chairwoman Lofgren, California has 2,104 participating
employers in this program, representing over 12,000 sites.
In the state of Iowa, Ranking Member King, there are 148
participating employers, representing 659 sites.
For fiscal year 2007, USCIS received $114 million from
Congress for the expansion and improvement of EEVS to better
support an increasing amount of employers. Appropriations have
been used to test the photo screening tool, incorporate
additional data sources to deter fraud and cases of identity
theft and streamline the employer enrollment process by making
it completely electronic.
USCIS is improving the program in many other ways,
including updating training materials, creating more user-
friendly web pages, providing better customer support and
exploring additional query access methods that could be used by
employers that do not have Web access. We are also continuing
to conduct independent evaluations to provide additional input
for improving the program.
An accurate and secure Employment Eligibility Verification
program is a critical component of efforts to improve worksite
enforcement. Better worksite enforcement is a key component of
any proposal to create a Temporary Worker Program. The success
of the TWP will be essential to reducing the pressure on our
border.
A secure border will allow us to free up much needed
resources, enforce our laws and protect our homeland against
foreign threat. It is all connected. Each link in this chain is
critical to its overall integrity and our Nation's homeland
security.
The ultimate success of a future electronic eligibility
verification program will rely on public-private cooperation
and active employer participation in government partnerships to
secure our workforce. Our work is critically important to the
future of our Nation and directly impacts national security,
our economy and individual lives. We all share in the
responsibility to make our Nation greater.
I look forward to working with you to advance our mutual
interests and assist those who come here seeking freedom,
prosperity and hope for a better future.
Thank you, and I look forward to answering your questions.
But at this time, Chairwoman, I would like to ask
permission to have Ms. Gerri Ratliff, who is the Director of
our Verification Division, join me at the table here, so she
can do a quick demonstration on the EEVS system.
Ms. Lofgren. Without objection.
Ms. Ratliff. Good morning.
This is the employer's homepage for the Basic Pilot. When
an employer is ready to perform a query on a new hire, they go
to this screen and input information from the Form I-9. So you
can see it is basic information, very simple: name, date of
birth, SSN, citizenship status.
You can see here in the middle of the screen, where it says
``employment authorized"--or you may not be able to see. In the
middle of the screen, it says ``employment authorized,'' and
this happens 92 percent of the time for queries. The employer
then is essentially done with the verification.
In the percentage of cases, about 7 percent, where there is
a mismatch, the employer gets a screen like this that will
indicate the type of mismatch.
Our latest functionality that we wanted to show you today
is a pilot with about 40 employers called the photo screening
tool. This is a query by card number. It is a query for new
hires who are non-citizens showing a green card or employment
authorization document for Form I-9 purposes, and we are
querying by that card number to display on the screen the photo
that we, USCIS, put on that card.
If the photo does not match the photo on the document the
employee showed the employer 100 percent, then the card has
been either photo substituted or is completely a fraudulent
card. And this pilot has already detected one case of fraud in
about 300 queries that have been run, and that employee did not
contest that it was a fraudulent document.
The information is also verified against our databases in
addition to showing the photo that should be on the screen.
Thank you very much.
Ms. Lofgren. I should note for those whose vision is not
good enough to see the writing on that screen, that we do have
the PowerPoint attached to the testimony of the witness for our
review.
Thank you very much for your testimony.
[The prepared statement of Mr. Scharfen follows:]
Prepared Statement of Johnathan R. Scharfen
ATTACHMENT
Ms. Lofgren. I I will begin the 5 minutes of questioning.
Mr. Scharfen, you say that over 92 percent of the queries
from employers receive an instantaneous clearance within 3
seconds, but it is that 8 percent that we need to resolve. The
Bureau of Labor and Statistics estimates that the total number
of employees in the United States is 146.3 million. Eight
percent of that workforce would be 11,704,000.
As the United States contemplates the Basic Pilot program
and expansion, are you equipped to deal with that volume of
inquiries? And, if so, in what timeframe?
Mr. Scharfen. Yes, ma'am. Right now, we are taking 3
million inquiries a year. Our current capacity is for 25
million inquiries a year. However, we are also taking
approximately 10 million inquiries a year from the State
programs. So that puts us at 13 million. We have capacity for
25 million. So right now, we are about half-capacity.
Ms. Lofgren. I see.
Mr. Scharfen. So we could double it today.
Ms. Lofgren. I want to make sure I understood your
testimony correctly. Was it your testimony that the Social
Security Administration Numident database and the USCIS
database are not currently interoperable?
Mr. Scharfen. I am sorry, Madam Chairwoman. If the
databases----
Ms. Lofgren. USCIS and the Social Security Numident, are
they interoperable databases?
Mr. Scharfen. What we do is we make an electronic query to
the Social Security----
Ms. Lofgren. So it is a query system.
Mr. Scharfen. Yes, ma'am.
Ms. Lofgren. I am going to give you an example, and I want
you to tell me how this could happen and how what you are doing
will change it. It is a real-life story that happened with an
employee of the House of Representatives who was hired on March
2.
This individual is a United States citizen, came to the
United States as a child in 1980 and has been a U.S. citizen
since 1992. Because the United States House of Representatives
participates in screening, she went down to the Committee,
completed the I-9, showed them her United States passport, and
it came back as a tentative non-confirmation.
So this person, the next day, got 8 Federal Government work
days to resolve it--even though it was actually dated the day
after she found out, so it ended up being only 7--and ended up
having to go to several meetings, to the Social Security
office, back to her employer, to House Employee Services. I
mean, it took about six or seven meetings. And luckily this
person had her passport on her.
She was told that even though she has always been legal to
work, I mean, she came as a lawful permanent resident, that
that didn't matter, that wouldn't be reflected in the Social
Security database.
And I am just mindful that Ms. Hong here, who is our
counsel, if that is what is happening to her in the Basic
Pilot, what is happening to someone who isn't an immigration
lawyer, who doesn't work for the Immigration Subcommittee, who
doesn't have access to the Social Security Office in the
Rayburn Building, and whose boss is not the Chair of the
Immigration Subcommittee? [Laughter.]
Mr. Scharfen. That is a good question, Madam Chairwoman. I
will try to answer as best I can.
We understand that the system today is not perfect, and we
are taking the large investment that Congress has made, $110
million, and during the past year we have been trying to make
improvements to the system.
Unfortunately, there is a fact pattern there that has
occurred previously, where someone has been born outside the
United States, whether as a citizen or otherwise, when they
come to the United States they have been having some problems
with the EEVS process. And so that is one fact pattern
unfortunately that we are struggling with.
Some of the ways that we are trying to correct that is that
we are adding to the databases that make up the system on the
USCIS side. We are also working closely with the Social
Security Administration, working through those types of issues
as well.
Ms. Lofgren. So are you saying that it--we have, for
example, in Silicon Valley a tremendous percentage of our
population is a naturalized citizen. I mean, these are
engineers from all over the world, that they are all going to
get a hit as possible non----
Mr. Scharfen. No. But there have been--any of these types
of hits, obviously, are too many. And in looking at the data
that we have of non-confirmations that should have been
confirmations, we have found this sort of information, this
sort of fact pattern.
Ms. Lofgren. I am going to end because my time is up and I
want to set an example, so I will turn now to Mr. King for his
5 minutes of questions.
Mr. King. Thank you, Madam Chair.
Mr. Scharfen, as I review this testimony, it occurs to me
that we have also been talking, and the President, as I recall,
has been talking about biometrics in addition to anything you
might be using right now with your improvement in the photo
tool incorporation.
Have you considered incorporating biometrics into that?
Because as I recall the gentlelady's testimony about matching
the picture on the card with the picture that is in the
database, what about matching the face that is in front of you
at the same time?
Mr. Scharfen. Yes, sir. The current photo pilot is doing
just that.
What we have done is, we have taken the data, we have
increased our database and are taking the photographs from the
I-551s, the green cards, and the EADSs, the work permits, and
we have taken those photographs and we have put them into the
system so that when you do--when a participating--we have 40
employers right now in the pilot participating with this
photo----
Mr. King. Can you identify the distinction between twin
brothers or sisters?
Mr. Scharfen. I am sorry, sir. Can you----
Mr. King. What I really want to know is, does the employer
have the authority to determine by visual identification, if
the picture on the card matches the picture in the database but
does not match the face in front of them, can you then dismiss
that employee?
Mr. Scharfen. Well, yes. He would be able to then try to
ask for confirmation. You go through that process that you had
described.
Mr. King. Would there be repercussions on the employer if
he made a bad judgment call and they happened to be twins?
Mr. Scharfen. I would hope that in a situation like that,
that discretion would play into any type of enforcement action.
Mr. King. The reason I ask the question is because I think
when you get into this judgment call, we had that problem in
the judgment call of reasonably determining that the documents
are valid. Now there is this question about the judgment call
of being able to verify that the person in front of you matches
the picture.
So I submit that, can you incorporate fingerprints into
this, like ICE has, where you put the index fingers on a cheap
little camera and the picture shows up that matches those
fingerprints? Have you considered going down that path with
real biometrics?
Mr. Scharfen. Right now, sir, we are just working with the
photo pilot, and we are not working with using any of the
fingerprints at this time. There are other biometrics that are
conceivably possible with this program, but right now we are
working on the photo.
And getting back to the photo, I think that with our
current system under the pilot, the emphasis has been just
making sure that the photograph that comes up through the
computer, on the computer screen, and the photo in front of you
are one and the same and that they haven't been doctored.
Mr. King. And I will concede that is a very good start. And
hopefully we will also plant some seeds here that we know we
are going to have to be facing a requirement for biometrics to
really get this right in the longer term.
In your written testimony, you state or indicate that we
can ``protect our homeland against foreign threats by
implementing a temporary worker program.'' I wonder if you
could explain to this panel, how letting in millions of foreign
workers is going to make the United States safer.
Mr. Scharfen. I think that the President's position would
be that it has to be part of a comprehensive immigration reform
plan.
Mr. King. The point of legalizing millions of people that
are here today illegally, how does that make America safer,
though? Do you have an understanding of that or is that the
Administration's position and that is where we are today?
Mr. Scharfen. I do. I think that the Administration's
position is defensible in terms of looking at a comprehensive
reform plan and that taking one piece of that reform plan in
isolation won't get you the right answer.
But in terms of putting it in the larger context of the
immigration reform proposal, you would increase security
because you would be brining people out of the shadows who are
working----
Mr. King. At least those that felt comfortable that they
would be legalized. Those that suspect that they would not be,
I suspect would not come out of the shadows.
I point out also that many of the people who are here
illegally don't have a legal existence in their own country,
and how would we go about doing background checks or verifying
them since they don't have a birth certificate if they are not
born in a hospital?
Mr. Scharfen. We would be doing a full series of background
checks that we do on immigrants coming in or other non-
immigrants coming in through our systems today, whether it is
the FBI name check, whether or not it is the arrests and
warrants system. We would do the full security check and
fingerprint check on these----
Mr. King. But if someone has committed a felony in a
foreign country and come into the United States illegally and
they don't have a legal existence in their home country, then
do you have a way to verify that? Or do you just have to take
them at their word?
Mr. Scharfen. I think that currently our system checks are
with the FBI and with the other arrest and watch warrants that
feed into that process. Whether or not they would have some of
the foreign information on that, I think would be questionable,
but not necessarily preclude it, sir.
Mr. King. Thank you, Mr. Scharfen.
Thank you, Madam Chair. I yield back.
Ms. Lofgren. Thank you.
The gentleman from California, Mr. Berman, is recognized
for 5 minutes.
Mr. Berman. Thank you, Madam Chairman.
Could you explain how doing nothing will make us safer?
Mr. Scharfen. I am not certain I could do that, Mr. Berman.
Mr. Berman. Because it wouldn't.
Mr. Scharfen. Yes, sir.
Mr. Berman. On the Basic Pilot, that is not a photo
verification system. That is simply a Social Security number
authenticity check?
Mr. Scharfen. Yes, sir. Basically, today, the current Basic
Pilot is taking a look at the information behind different
cards that are given to the employer on the I-9 form so that
you go back and you check the Social Security number first with
the Social Security Administration and then if it is a non-
citizen, you check the USCIS data to see whether the individual
is----
Mr. Berman. The Social Security Administration has a
special designation for legitimate Social Security numbers held
by non-citizens?
Mr. Scharfen. That is correct.
Mr. Berman. What the system doesn't tell you is whether the
person who is asserting his or her Social Security number is in
fact the person who has that number.
Mr. Scharfen. Yes, sir. And that is the problem we had with
the Swift case, where there was identity theft and identity
fraud, sir.
Mr. Berman. Let us assume for a second that wasn't a
problem. In order to expand that Basic Pilot program into a
mandatory national system, how much time would you need? And
how many new employees would you need? And how much more than--
this year it was $114 million--in appropriations would you
need?
Mr. Scharfen. Yes, sir. I will try to give you that answer
as best that I can, sir.
It depends on what sort of program the EEVS is, whether or
not you are going to have all new, just all new employees
covering everybody----
Mr. Berman. Let us assume that it would be universal in
terms of employer coverage, but it would only apply to new
employees.
Mr. Scharfen. We currently have a capacity of 25 million
queries right now. We would have to double that to 53 million.
We think we could do that with the current system and that all
we would be adding onto that system would be servers. And so we
think we could do that in short order and on the hardware
capacity side of it we could add on to that system rather
easily.
Our intake here, the Web intake, is large. The pipe is
large, if you will. And just adding on to the servers would not
be that difficult or technical----
Mr. Berman. Just quantify ``short order.''
Mr. Scharfen. It would be less than a year, I believe.
Mr. Berman. And quantify ``cost of additional servers.''
Mr. Scharfen. Right now, it costs $75 million just to run
our current system a year. We would anticipate that it would be
in the hundreds of millions of dollars, sir, to expand that. I
would probably leave it at that magnitude, sir, if I could.
Mr. Berman. Tell me about the photo pilot. The individual
who applies for the job, in order to participate in this pilot,
what does the employer have to get from the individual other
than the Social Security number?
Mr. Scharfen. The way for this to work, sir, you have to
have a green card or an EADS, a worker authorization card.
Mr. Berman. Some kind of nonimmigrant worker----
Mr. Scharfen. Yes, sir, or a green card that has the photo,
the biometric, there.
And what happens, and I will let Ms. Ratliff describe this
in more detail since it is her program, but basically you pull
it up, you put the number of the card into the system. It pulls
up the photo in the system and the employer matches the two
photos, but I will let Ms. Ratliff add anything to that.
Ms. Ratliff. Sir, it is query by card number so that it is
a one-to-one match against our repository where we store the
data that we put on the card, the green card or the EAD. So we
are collecting an additional data field for card number.
And this applies today, in sort of Phase 1, to non-citizen
new hires who show a green card or employment document for the
Form I-9.
Mr. Berman. Let me just interject. But the employer
determines that the card he is seeing on the screen matches the
picture? There is no machine verification?
Ms. Ratliff. Correct. Today it is just a matter of the
visual verification that the photo on the card and the photo on
the screen are 100 percent the same, because it is the photo we
put on the card.
For the purpose of this pilot, we are moving very
carefully, and if the employer thinks there is a mismatch, we
are having them send us copies of the document so we can also
visually inspect because it is just such a huge leap forward to
begin incorporating this biometric. We want to do it quite
carefully.
Mr. Berman. I think my time is expired.
Ms. Lofgren. The gentleman's time has expired.
The gentleman from California, Mr. Gallegly, is recognized
for 5 minutes.
Mr. Gallegly. I appreciate the opportunity, but since I
came in in the middle of the hearing, I will defer.
Ms. Lofgren. All right. Let me call, then, on Mr. Gohmert,
who has been here from the beginning.
Mr. Gohmert. Thank you, Madam Chairwoman.
I appreciate you being here to testify. There are so many
problems, it is kind of hard to know where to start.
First of all, we had heard testimony in the last couple of
years in this Immigration Committee that when a name is
processed, wanting the right to come into the United States, it
is put in the most generic form, put into the computer for
potential hits or flags, and when those come, it goes to
adjudicators, if I understood the process--is that correct?--to
check out those flags and see if it is something they should be
worried about or that this couldn't possible be the person.
Mr. Scharfen. Essentially, that is it. There is a two-step
process and it goes to verifiers at the USCIS, who then work on
the case, sir.
Mr. Gohmert. And one of the things that concerned me
greatly in trying to get at why it is taking so long to process
things here was that many of the adjudicators didn't have the
security clearance; they had not gone through the process
because it costs money.
They didn't have adequate security clearances in order to
access the FBI files, the documents, the files, the records
that would allow them to make that determination, and that in
some cases, because of time restraints, they eventually either
just made a guess, passed it on or left the flag on.
So I am wondering, how are we doing for getting security
clearances for adjudicators to make those determinations, so
they don't just sit there?
Mr. Scharfen. Sir, I think there are two issues here. One
is the EEVS system and then the other is the FBI name check----
Mr. Gohmert. Right.
Mr. Scharfen. And the checks of watches and warrant type
checks there.
As to the second there, we are giving this our attention at
both the agency and at DHS to improve our ability to do our
name checks in a quicker, expedited and more accurate fashion,
and we have looked at that process from start to finish.
And as a matter of fact, I am meeting today after this
hearing with the FBI to work on a pilot program that we hope
will increase the efficiency with which we do our FBI name
checks to make sure----
Mr. Gohmert. I appreciate that, but I would sure--I am so
pleased that the Chairwoman would have this meeting, and I hope
will have more so we can find out what progress they are making
in this regard.
An anecdotal situation, but I am afraid from what I hear
this is true across the country. We had a business in Belgium
that wanted to locate in one of the towns in my district, and
they wanted to hire workers in the community. Most of them
would have been Democrats. [Laughter.]
But all they were asking was that we have the plant manager
from Belgium. And after about a year and a half, they are
going--this is people we could have had working for a year,
year and a half, and all we are trying to do is get this guy
through.
I ended up talking to the company's lawyer in New York.
They said they were told, gee, if you pay $1,000 it will put it
on the expedited path. So they paid $1,000. Months later, they
checked, said we thought it was expedited, and they were,
according to him, oh, yeah, it was expedited on that one part,
but now if you want it expedited on the next part, pay another
$1,000.
And I am going, my goodness, it sounds like the United
States is a corrupt, third-world country that may, actually, in
talking to others that come in, they say it is easier and
quicker to go into a third-world country and get a visa to move
in there than it often is in the United States.
So with all our millions, with all our technology, I am
really concerned about our image abroad, and especially when we
leave people without jobs simply because we can't process one
visa, one right to come into this country and help all of us.
So I would like your comment on that.
Mr. Scharfen. Yes, sir. We admit that it is a serious
problem, and it is a problem that, in terms of the backlog,
unfortunately, has been----
Mr. Gohmert. And is there a bribe system like that, that
helps smooth the path? An official, I mean, not illegal bribe.
Just a legalized bribe system to move it forward?
Mr. Scharfen. No, sir. There are some----
Mr. Gohmert. So you are saying you can't pay $1,000 so we
need to run down who they paid the $1,000 and where it ran and
who got the $1,000?
Mr. Scharfen. There are some expedited processes in our
immigration services.
Mr. Gohmert. So you can pay extra money to move it along.
Mr. Scharfen. In some of the immigration transactions, yes,
sir, there are expedited processes and fees that you can pay.
However----
Mr. Gohmert. You understand how that looks to the outside
world, and even to some of us in this one?
Mr. Scharfen. Yes, sir. What happens, though, if--and I
don't know the facts of this case, sir, and I would be happy to
go back and take a look at it carefully, but----
Mr. Gohmert. Well, he is in now, finally.
Mr. Scharfen. I am glad to hear it.
Mr. Gohmert. And the Democrats are working, as they wanted
to do all along.
Mr. Scharfen. What happens, though, is that we don't want
anyone, we can't allow anyone to get into the United States
unless the FBI name check has been cleared. And that is really
where we have this terrible backlog. And it is affecting any
number of people.
It is affecting our laws. We are being sued tremendously
over this. It is requiring a--there is a real cost. There are
costs to lives, individuals' plans and their families. It is a
cost to our economy and a cost to our Nation's security, and we
are working hard to fix the problem, sir.
Mr. Gohmert. Okay.
Thank you, Madam Chairwoman.
Ms. Lofgren. The gentleman's time has expired.
Mr. Delahunt, the gentleman from Massachusetts.
Mr. Delahunt. Thank you, Madam Chair.
Let me just pick up on the theme--it is good to see you,
Jock.
Mr. Scharfen. Nice to see you, sir.
Mr. Delahunt. Let me pick up on the theme that was laid out
by my colleague, Mr. Gohmert. We have a real problem in terms
of welcoming people to the country. In the year 2005, our share
of the international visitors market, what we should have had,
has been estimated at a loss of some $43 billion in that single
year.
You know, the problem, as Mr. Gohmert referenced, it is my
understanding, and there is significant evidence to establish
this premise, is that international businesses are now making
decisions to relocate elsewhere rather than in the United
States because of the problem in the anecdote that was
described by my friend.
That is serious. You know, we are a Nation of immigrants
and all that, and we do have to provide for security, but it
would appear to be in terms of the admission process, and we
are talking people who we want in this country for our own
economic prosperity, are being discouraged.
It would just seem, and I am just giving you an opinion. I
have had in my own Subcommittee which I chair, I have had a
series of hearings on America's image abroad as well as this
issue of the decline in tourism and travel internationally that
we are witnessing.
I don't want to get into the weeds, but it would appear,
Mr. Secretary, that we have a real mess here in terms of the
technology, and it is very, very frustrating. I don't know what
the current status is in terms of the biometric passports. I
just recently returned from Germany. We were besieged by German
officials to expand the visa waiver program and to enhance the
Visit USA every time we turned around.
Let me just pose a question, because I think this goes to
Mr. Gohmert's point and to the Chairwoman's point in this case.
Is there, within USCIS, an ombudsman? Do we have, within the
agency, a significantly sized resource to expedite these kinds
of problems that I think are hurting our image and are clearly
impacting in a negative way our national economy in an economy
that is increasingly subject to globalization?
Mr. Scharfen. Yes, sir, we do. We have an ombudsman who has
been there for about 4 years, and he has addressed these
issues, and they are of concern to him, sir.
Mr. Delahunt. But, I mean, I guess what I am talking about,
Mr. Scharfen, is, it is one thing if you are counsel to the
House Committee on Immigration, but, again, going to the
problem that Mr. Gohmert talked about, a year and a half is
just totally unacceptable. It is just totally unacceptable.
I mean, what is the size of his staff? Are we talking five
people or are we talking hundreds of people so that those whom
we want in this country that are being impeded can pick up a
phone and talk to somebody and have them walk through the
process so that we can get these issues resolved?
Mr. Scharfen. No, sir, he does not have 100 individuals. It
is significantly less than that.
Mr. Delahunt. What I am saying, I think these problems are
everywhere, all over the system. We don't seem to be doing well
in the technology. You just referenced the FBI. I mean, we had
a debacle in terms of $180 million computer appropriation that
didn't work. I mean, here we are, a leading technological
Nation and we just can't seem to get it together. And as a
result, our image abroad is hurting.
If you look at these surveys, people are opting to go
elsewhere for school. They are going elsewhere in terms of
their recreational travel. And they are relocating elsewhere--
their business decisions are being impacted by what they
perceive to be an unfriendly Nation in a system that they don't
want to navigate any longer.
Ms. Lofgren. The gentleman's time has expired.
The gentlelady from California is recognized for 5 minutes
for her questions.
Ms. Sanchez. Thank you, Madam Chair.
Mr. Scharfen, can you tell me if Basic Pilot can detect in
cases when an employer probably knowingly hires an undocumented
worker, doesn't enter them into the system, but then enters
them into the system later, say, after they have filed a labor
complaint?
Mr. Scharfen. Right now we are working to improve that area
of our program, ma'am.
We have $110 million appropriated to us, and some of the
improvements we are doing is in the monitoring and compliance
side of it, and what we would like to do, we have the data but
we are not right now monitoring it, and we are putting it into
systems and adequately monitoring it to pick up the patterns
that you have just identified.
We would like to do that, and so we have a program where we
are hiring and starting to develop different monitoring
software and analysts so that we can look for those sorts of
patterns in the data, so that we can make those sorts of
judgments and then go from monitoring to compliance.
Ms. Sanchez. Because right now, participation in the Basic
Pilot program requires signing of a memorandum of understanding
and there are certain conditions that employers have to abide
by for the use of the program as well as the prohibited
practices for using the program.
But my understanding is that in an external evaluation that
was done by Temple University, they found many employers were
misusing the system and violating the terms of the memorandum
of understanding, things like giving non-authorized people
access to the database or information, prescreening job
applicants, taking adverse actions against employees after
receiving a tentative confirmation.
Do you have any updates in terms of what percentage of
employers who are currently using the Basic Pilot program might
be misusing it?
Mr. Scharfen. I don't have that at my fingertips, here. Ms.
Ratliff might have some of the data.
But before I allow her to add that in, I would say that
that sort of illegal conduct, some of the conduct that you just
identified, is clearly against the law. And whether it is
discrimination or otherwise. And the monitoring program that I
was just discussing would be aimed at looking for that sort of
pattern as well, where an employer is illegally screening out
foreign workers, for instance, or on other grounds.
That may be evident when we start doing the monitoring of
that, and then that would go into the compliance side of it,
and it would be on any one of those grounds.
Ms. Ratliff, can you add to that?
Ms. Ratliff. I would just add that that Temple report is
based on data that is 5, 6, 7 years old.
Ms. Sanchez. Do you have any more current data?
Ms. Ratliff. Westat is doing an independent evaluation with
updated information. We have an interim report that came out in
April and the final report is due out this summer, that we
would be happy to make available.
Ms. Sanchez. Okay. I would appreciate that.
Can you please tell me what actions are currently taken
against employers that misuse that system? The compliance side
of it.
Mr. Scharfen. I would think that we would refer that to the
enforcement side of the department. We would refer it to ICE
and give it to them for any appropriate enforcement.
Ms. Sanchez. To your knowledge, do you know if there have
been instances of misuse where action has been taken against
employers or if any employers have been penalized for misusing
the system?
Mr. Scharfen. There have been instances where the use of
the EEVS has been cut off, but as to other types of
enforcement, I will have to look into that and get back to you,
ma'am.
Ms. Sanchez. Would you have any recommendations for
ensuring that employers use the system properly and ways in
which we could penalize, what would be effective methods of
penalizing those who violate the terms of----
Mr. Scharfen. I think getting back to the original point
that I had made, ma'am, is that we first have to monitor it and
then go from there onto the compliance side of it, and that the
first step is to identify in a more systematic way those
instances of violations and then treat those appropriately,
both programmatically and in individual instances, and I think
if we did pick up individual instances, we would refer those to
ICE for enforcement.
Ms. Sanchez. Thank you.
I yield back.
Ms. Lofgren. The gentlelady's time has expired.
I will note that the record is held open for 5 legislative
days so that written questions can be directed to the
witnesses. And all Members are asked to pose those questions
within the 5 days, and we ask that answers be made as promptly
as possible.
We do thank you, Mr. Scharfen, for your testimony today and
for your further information and answers to follow-up
questions. And we do look forward to the April interim report,
which we do not have, and we look forward to getting that.
Mr. Scharfen. Yes, ma'am. Thank you for the opportunity to
testify.
Ms. Lofgren. Thank you so much.
I am now going to ask the second panel to come forward to
the table. While we are getting organized, I will start the
introductions.
First, we are pleased to introduce John Shandley, the
Senior Vice President of Human Resources at Swift & Company.
Before his work with Swift & Company, Mr. Shandley directed
several units within the Labor Relations Division at Nestle USA
and store operations at Ralph's Grocery Company.
A former aide to the commanding Army general in Okinawa,
Japan, and the assistant commanding Army general in Fort Hood,
Texas, Mr. Shandley holds a B.S. degree from the University of
Southern California and graduated from the Food Industry
Management Program, also at the University of Southern
California.
We are also pleased to have Stephen Yale-Loehr join us from
the law firm of Miller Mayer. Mr. Yale-Loehr has practiced
immigration law for more than 20 years and has co-authored the
leading multi-volume treaties on U.S. immigration law, titled,
Immigration Law and Procedures.
In addition to his practice, Mr. Yale-Loehr teaches
Immigration and Asylum Law at Cornell University's Law School
as an adjunct professor. He holds his bachelor and law degrees
from Cornell.
Finally, I would like to welcome Dr. Marc Rosenblum, a
professor with the Political Science Department at the
University of New Orleans. In addition to his scholarship on
immigration policy and U.S.-Latin American relations, Professor
Rosenblum has served as an international affairs fellow at the
Council on Foreign Relations and a visiting fellow at the
Migration Policy Institute.
Professor Rosenblum earned his B.A. from Columbia
University and his Ph.D. from the University of California in
San Diego.
Each of you have provided written statements, which I have
read and I am sure the other Members have as well. They were
very helpful. The entire statements will be made part of the
official record.
I would ask that you summarize your testimony in 5 minutes,
and to help you stay within that timeframe we have a very
helpful little light here. And when you have about 1 minute
remaining, the yellow light will go on. And when it turns to
red, it means that your time is up.
So, again, thank you for being here.
And let us start with Mr. Shandley.
TESTIMONY OF JOHN SHANDLEY, SENIOR VICE PRESIDENT HUMAN
RESOURCES, SWIFT & COMPANY
Mr. Shandley. Chairwoman Lofgren, Ranking Member King,
Members of the Subcommittee, good morning. My name is Jack
Shandley, Senior Vice President of Human Resources for Swift &
Company. Thank you for inviting me.
Today I will cover background on Swift, our experiences
with employment verification, worksite enforcement systems, and
recommendations.
Swift is the third-largest processor of fresh beef and pork
in the United States. Annual sales exceed $9 billion. All but
one of our seven domestic plants have union representation. We
employ 15,000 people domestically, pay production employees
more than twice the Federal minimum wage, offer retirement and
comprehensive health care benefits, and possess industry-
leading employee safety records.
Swift's hiring process goes above and beyond what is
required by Federal and State law in terms of identity
determination and work authorization.
First, every new Swift employee is required to complete an
I-9 form, provide government-issued photo identification,
usually a State identification card or driver's license.
Employers must accept identification documents that on their
face seem valid and not specify which of the 29 authorized
forms of identification the applicant must supply and are
prohibited from asking for additional documents.
In fact, Swift was sued for $2.5 million by the Department
of Justice in 2001 for allegedly going too far in trying to
determine applicant eligibility. We settled the case for less
than $200,000 with no admission of wrongdoing.
Second, Swift has voluntarily participated in the Federal
Basic Pilot program since 1997. Every production employee hired
since has received a Social Security number and name validation
through this government system.
Third, last year, with the assistance of third-party
immigration compliance consultants, we implemented a hiring
process improvement program called, informally, Connect the
Dots. It enhanced our interviewing and information evaluation
procedures to allow us to better detect identity fraud in a
nondiscriminatory way.
For example, we now automatically flag new applicants who
were either previously employed with or denied employment at
another Swift location.
Simply put, a company cannot legally and practically do
more than we have done to ensure the legal workforce under the
current regulations and tools available from the government.
Despite these procedures, the government raided six Swift
production facilities on December 12, 2006, detaining 1,282
employees. This event cost Swift more than $30 million and
disrupted communities and livestock producers.
The raids came after numerous attempts over many months by
senior management, outside counsel and others to understand
ICE's concern. We sought a collaborative way of apprehending
all potential illegal workers and criminals in order to
minimize disruption to the company, the communities and the
livestock producers. All efforts to generate a collaborative
solution were repeatedly rebuffed by ICE under the guise of an
ongoing criminal investigation.
After 14 months of investigation, the government has not
accused or charged Swift or any current or former member of
management with any wrongdoing in connection with this
immigration worker investigation and we have no reason to
believe they shall do so in the future.
DHS continues to unfairly insinuate that Swift is somehow
guilty. We believe it is past time for it to publicly admit to
the company that it is not guilty of violating immigration
laws.
These ICE raids dramatically highlighted flaws in the Basic
Pilot program. Criminals today are able to substitute
counterfeit identification documents with genuine ones obtained
under fraudulent terms. For example, State identification cards
obtained with valid copies of birth certificates or Social
Security cards. Furthermore, Basic Pilot does not detect
duplicate active records in its database. The same Social
Security number could be used at multiple employers across the
country.
Today we are confronted with a prolific and sophisticated
document fraud industry now capable of providing unauthorized
workers with documents and identities that challenge our
ability to detect fraud and seem to defeat the Basic Pilot
program relied upon by employers. Let me reiterate: Basic Pilot
is the only government tool available to employers and it is
fatally flawed.
Employers like Swift, who follow the law, are not the
problem within the immigration reform debate. The immigration
system is the problem. We need a legislative solution to the
issue of employment verification, a more broadly comprehensive
immigration format that includes a revamped Basic Pilot
program; standardized State identification requirements;
tamper-proof or biometric identity documents; tough penalties
for employers who break the law and protection for those who
don't; a refocused initiative for ICE that includes a
collaboration with employers who play by the rules; a guest
worker program; and earned status adjustment for a large
portion of the estimated 12 million individuals illegally here
today, whether as citizens or permanent alien residents.
Thank you for having me.
[The prepared statement of Mr. Shandley follows:]
Prepared Statement of John W. Shandley
Ms. Lofgren. Thank you very much.
Mr. Yale-Loehr?
TESTIMONY OF STEPHEN YALE-LOEHR, MILLER MAYER, LLP, ADJUNCT
PROFESSOR, CORNELL LAW SCHOOL
Mr. Yale-Loehr. Thank you. The Subcommittee asked me to
give you a brief history about employer sanctions. I also want
to talk with you about some systemic problems with the current
employer sanctions regime and conclude with some
recommendations.
First, a brief history. Congress enacted employer sanctions
in 1986. Until then, it was not illegal for an employer to hire
someone who did not have proper work authorization. It was
illegal for the worker to be here without proper work
authorization, but it was not illegal for an employer to hire
them.
That changed in 1986 when Congress enacted employer
sanctions as part of IRCA. IRCA did four things relating to
this hearing today.
First, it prohibits employers from knowingly hiring
undocumented workers.
Second, it requires all employers to verify identity and
work eligibility of all job applicants, U.S. citizens or
foreign nationals.
Third, IRCA created anti-discrimination protections.
And, fourth, although it wasn't in the statute, one flaw of
IRCA was that it failed to provide for a temporary worker
program to allow future flows of temporary workers to enter the
United States legally.
Congress was concerned that the enactment of employer
sanctions might increase discrimination against foreign-looking
and foreign-sounding job applicants, so it asked the Government
Accountability Office to do a series of three reports.
In 1990, the final version of that report came out and the
GAO found that IRCA's employer sanctions provisions created ``a
serious pattern of discrimination.'' The GAO found that because
of employer sanctions, discrimination against foreign-looking
and foreign-sounding job applicants increased by 19 percent.
Despite that finding by the GAO, Congress did not do much
to repeat or to modify employer sanctions. Employer sanctions
effectively has created a paradox. We have a high degree of
paperwork compliance, but a low degree of actually stopping
undocumented workers from entering the United States or working
here.
Employers complain about the paperwork burdens and they do
not want to be junior immigration inspectors. Fraud and
discrimination have increased with employer sanctions over the
last 20 years.
What to do about it? Well, in 1994, Representative Barbara
Jordan headed a commission that looked into this issue and they
came up with a proposal to take verification away from
employers and put it on the government. They recommended a
computerized registry of looking at Social Security and
immigration databases. That was the genesis of the Basic Pilot
program that Congress enacted in 1996.
I am not going to talk about the Basic Pilot program
because the other panelists will talk about that in more depth.
What I next want to focus on are some of the systemic problems
in our current employer sanctions regime.
First, the political compromise that created employer
sanctions floundered against the economic reality of the fact
that we did not have a legal way to bring in needed temporary
workers to the United States legally. Therefore, they had to
enter illegally and use fake documents many times.
Second, employer sanctions enforcement has been
inconsistent. It was fairly good right after enactment of IRCA
in 1986, but has then declined. For example, the Immigration
and Naturalization Service audited almost 10,000 employers back
in 1990, but only 2,200 in fiscal year 2003, a decline of 77
percent. Similarly, back in 1992 the Immigration Service issued
over 1,460 notices of intent to fine against employers who
violated employer sanctions. By 2004, that had dropped to
three, a decline of 98 percent.
So what do we do? Well, I have several recommendations in
my written testimony. I call them the 3 E's: enforcement,
evaluation, and entry.
First, on enforcement, we need consistent, vigorous and
adequately funded enforcement that is funded by the Congress
over the long haul, not just for a few years. Moreover, we need
to target employers who intentionally violate whatever employer
sanctions regime is enacted.
Second, evaluation. We need to properly, quickly and
accurately evaluate a person's documents so that we know those
documents are not fraudulent and that they do relate to the
person presenting those documents. We also need to continually
evaluate any new system to make sure that it is working
properly with very few errors and is not causing any increase
in discrimination or privacy problems.
Third, entry. We need to have a temporary worker program as
part of comprehensive immigration reform that is large enough
to accommodate our labor shortages. Those people then will be
able to enter legally and with proper documents. That will
reduce incentives to enter illegally or use false documents.
These three elements are the three legs of the stool that
can reform our employer sanctions regime. All three legs need
to be adequately funded and enforced over time or they may fall
apart.
In sum, employer sanctions is a very important component of
comprehensive immigration reform, perhaps the most important
component because it affects all Americans, not just
immigrants. For that reason, Congress must handle this issue
carefully and thoughtfully.
Thank you.
[The prepared statement of Mr. Yale-Loehr follows:]
Prepared Statement of Stephen Yale-Loehr
Ms. Lofgren. Thank you.
Now, finally, Dr. Rosenblum.
TESTIMONY OF MARC ROSENBLUM, Ph.D., DEPARTMENT OF POLITICAL
SCIENCE, UNIVERSITY OF NEW ORLEANS
Mr. Rosenblum. Thank you very much, Madam Chairwoman and
Members of the Committee. It is a great honor to be here with
you today. I appreciate the opportunity to talk to you about
the challenges of employment verification and worksite
enforcement.
The failure of existing immigration law to prevent
undocumented employment has been well documented and
establishing more effective employment-based immigration
controls has rightly been identified by advocates of
comprehensive immigration reform as a top priority.
In short, the current system fails to provide employers the
tools they need to identify undocumented employees. The I-9
document-based verification system is vulnerable to document
fraud, the use of fake IDs, and both the I-9 system and the
Basic Pilot Electronic Eligibility Verification System are
vulnerable to identity fraud with the fraudulent use of
borrowed or stolen identity documents pertaining to another
person.
In addition, enforcement of employer sanctions has never
been a priority for INS or DHS, as we have just discussed, and
penalties for noncompliance are low. These verification
problems mean that even conscientious employers may unknowingly
hire undocumented immigrants and weak enforcement provisions
mean that unscrupulous employers may knowingly do so because
the expected penalty is simply not a deterrent.
So we need to address both the conscientious employers and
the unscrupulous employers, and they require sort of separate
solutions.
These obstacles to effective enforcement are well known,
and I will therefore focus on three additional problems which
have received less attention.
First, even as the current system fails to prevent
undocumented employment, it also denies authorization to some
U.S. citizens and other legal workers. False negatives occur
during the I-9 process because the system is complex and many
employers recognize their inability to accurately determine a
job applicant's status.
So some employers err on the side of caution by refusing to
hire people who seem like they might be unauthorized to work, a
phenomenon known as defensive hiring.
The Basic Pilot was conceptualized in part to address this
problem by eliminating the need for subjective employer
judgment, but Basic Pilot database errors are surprisingly
widespread--we have talked a little bit about this. They exist
on a scale that would affect hundreds of thousands and perhaps
millions of workers in a universal system.
These errors demand our attention, because the logic of
electronic verification runs counter to the judicial principle
of presumed innocence. Under Basic Pilot, all job applicants
are presumed unauthorized until proven otherwise, so the burden
is on the U.S. citizen or other legal worker to correct
database errors, often after considerable time and expense, or
lose their job.
A second problem is that these false negatives
disproportionately affect persons born outside of the United
States so that our overall employment verification system
becomes a de facto source of employment discrimination. Legal
workers who look or sound foreign born are more likely to fail
an employer's eyeball test or to be subject to additional
scrutiny in the context of ambiguous verification procedures.
Faced with these doubts, some employers refuse to hire such
job applicants as a function of their appearance and other
employers hire questionable job applicants but pass along the
risk of doing so in the form of lower wages.
A well-functioning electronic eligibility verification
system could ameliorate this problem, but the Basic Pilot
exacerbates the problem because database errors in Basic Pilot
are far more likely to affect naturalized citizens and legal
immigrants than native-born citizens.
A third unintended consequence of the current system is
increased exploitation of undocumented workers by unscrupulous
employers. Ambiguity in the verification process allows
employers to turn a blind eye to fraudulent documents at the
point of hire and then discover an employee's undocumented
status later, perhaps in response to an employee's demand for
fair working conditions or their efforts to join a labor union.
Because current rules place greater emphasis on migration
control than they do on holding employers accountable or
enforcing U.S. labor law, some employers actively seek out
undocumented employees knowing it puts them in a position to
deport their labor problem later.
Once again, the harmful effect on wages and standards are
felt throughout the U.S. economy, not just by undocumented
workers.
As Congress considers comprehensive immigration reform, I
believe you confront a fundamental tension in this area. Most
steps to limit undocumented employment, strengthening
verification and enforcement procedures, tend to increase the
risk of false negatives, employment discrimination and worker
exploitation.
Setting aside the politics, it is technically difficult to
design a system which screens out those who should be screened
out without causing collateral damage to legal workers and
conscientious employers.
This tension may best be resolved by providing employers
and employees with clear and effective verification procedures
so that straightforward compliance prevents the overwhelming
majority of undocumented employment.
Once such a verification system exists, enforcement efforts
and penalty structures must be substantially increased to
create a real deterrent to undocumented employment with a
special focus on going after ``bad apple'' employers.
Most importantly, we now have two decades of unambiguous
evidence about the harmful, unintended labor market
consequences of worksite enforcement. Yet even as Congress has
been made aware of these adverse effects, flawed enforcement
practices have not only been committed to continue, but they
have been expanded in direct opposition to the conclusions of
key reports on this subject.
So as Congress once again prepares to strengthen worksite
enforcement, as it should, I urge you to learn from these
studies and, simultaneously, to take steps to prevent the
predictable increase in false negatives, discrimination and
exploitation, which are sure to result.
Thank you again for the opportunity, and I would be happy
to elaborate.
[The prepared statement of Mr. Rosenblum follows:]
Prepared Statement of Marc R. Rosenblum
Ms. Lofgren. Thank you very much. Very helpful from all of
you.
I will begin the questions.
Mr. Shandley, thank you for coming in voluntarily to give
us your perspective. You have suggested that ICE's behavior
with respect to action against Swift, have been problematic. I
am wondering, I mean, in your written testimony you say that
Swift lost more than $30 million as a consequences of this
raid.
Could you talk about what steps ICE took or didn't take
that they should have taken, in your judgment, to deal with the
situation you found and the financial ramifications for your
business?
Mr. Shandley. I would address from this way, Madam: It is
what they didn't take.
We repeatedly, through various avenues, including attempts
at direct contact, to work with them in a collaborative format.
And ultimately, you know, if they are looking for criminals, we
volunteered to help them. We said we would move heaven and
earth to get to those criminals and do everything we can.
At the end of the day, they raided our facilities and
basically detained thousands of employees to get at the 1,282,
of which only a few hundred actually had criminal issues
associated, and that was well documented in the press.
So at the end of the day, I think it could have been a far
more collaborative effort in its process without having to shut
down our operations in what we would consider to be--well, it
was an unprecedented manner.
Ms. Lofgren. I am wondering, Mr. Yale-Loehr, you talked a
little bit about the need to phase in a system over time, and
as we think about a biometric system, too often we don't think
about the database that is needed to support that system.
But we really actually have to make this work for every
employee in America, which is a lot of people. And I think
about standing in the line--which I don't much care for. I am
pretty sure that our American citizen constituents are not
going to be very happy about that. Everybody thinks this will
apply to somebody else.
What do you envision in terms of phase-in to make this
actually work in a way that will be seamless for the United
States citizens who are impacted?
Mr. Yale-Loehr. Because it is such a large problem, we do
need to phase it in over time. We probably need to have
checkpoints at each step of the process so that we know that
there is an accuracy rate that we can live with before we move
on to the next step of the process.
For that reason, it may take even a decade before we get to
a system that we all can agree on that meets certain
fundamental requirements of speed, accuracy, privacy
considerations, and non-discrimination. I don't have a specific
timetable in mind.
Hopefully, if this could be done well, it would not
necessarily be an actual line but it would be more of a virtual
line in that you present your documents to the employer and
they can find out very quickly by dialing or using the Internet
the answer that they need.
But there are going to be some costs to U.S. citizens and
the question is what is the price of that versus getting
control over knowing who our workers are.
Ms. Lofgren. Dr. Rosenblum, you are an expert on these
technology issues and I appreciate very much your willingness
to be here.
Some people say if every employer had the ability to just
do a card swipe like we do at the checkout stand, that that
would solve our problems. It seems to me that although that
kind of a system might eliminate some errors, that is really
not going to solve the whole thing.
Can you talk about the biometric needs as opposed to where
we are on databases and what needs to be done?
Mr. Rosenblum. Thank you.
Well, you are certainly correct. Simply adding a card swipe
to the current system would not solve all our problems. And the
main reason is that the card swipe doesn't tell you anything
about who is doing the card swiping. So we still have the same
identity fraud problem that we have now.
Ultimately, the only way that we are going to--there are
two ways that we can conceivably address identity fraud, and
one is through some kind of a biometric database.
And when we think about a biometric database, one option--
what that requires is, ultimately, for every U.S. citizen to
submit biometric data, a digital photograph or fingerprint, to
DHS, and so there would be an enrollment period where everybody
would submit that data.
One option then is that we would have something like the
photo screening tool that Ms. Ratliff was describing earlier,
where the employer would see a picture of what that person is
supposed to look like and then could make a judgment about
whether that person was in fact in front of them.
So I would submit that this would essentially address the
problem for conscientious employers. Most conscientious
employers could make a judgment. I mean, you would still have
some false negatives as a result and some discriminatory
outcomes.
The only way that you would really decisively confirm the
identity fraud issue is to take biometric data at the point of
hire. So to have either fingerprint scanning or some kind of
digital image scanning when employees get their jobs, and this
is a massive infrastructure investment and a massive shift in
how we think about relations between the States and individuals
and their employers.
The one thing that we should bear in mind when we think
about the cost of that is that ultimately we have to choose
between front-loading the cost by building some kind of a
biometric database and having problems like what we have seen
in the Swift case, back-loading the cost. We are either going
to make a lot of mistakes in enforcement and have employers who
comply but nonetheless hire undocumented immigrants, or we are
going to have to make this investment in some sort of biometric
database.
Ms. Lofgren. My time is expired, but I will just note that
compared to the $30 million Swift company lost on this raid,
they probably wouldn't have minded to spend a small amount to
enroll their employees.
But I would yield now to Mr. King for the 5 minutes.
Mr. King. Thank you, Mr. Rosenblum.
And thank you, Madam Chair.
I thank all the witnesses.
A point that I didn't hear emphasized, Mr. Rosenblum, is
that 99.8 percent of U.S. citizens are approved in the first
attempt to pass Basic Pilot. And would you agree that U.S.
citizens should be our first priority if we are going to clean
up this database and work our way through this process until we
get it all right?
Mr. Rosenblum. As long as there are these--the problem
with--certainly I think that, you know, your first concern is
to your constituents, U.S. citizens. As long as the system has
these large, systematic errors, then we are going to end up
with mistakes and we are going to have problems like the Swift
case.
Mr. King. Are there distinctions between the rights of U.S.
citizens and the rights of, I will say, visa holders and legal
workers here in the United States?
Mr. Rosenblum. Certainly, there are.
Mr. King. And you would acknowledge that we would have a
priority to set here in this Congress, would you not? Do you
just prefer not to make that philosophically yourself?
Mr. Rosenblum. I don't have a problem with Members of
Congress making that distinction, and I recognize that there
are differences in the rights of citizens versus non-citizens.
My concern is that until we have a verification system that
is accurate and reliable and employers are making judgments, as
you commented before, then we are going to end up with a lot of
mistakes and we are going to end up with employers continuing
to comply with the law and still hiring undocumented
immigrants.
Mr. King. Okay. Thank you.
On Page 14 of your testimony, you state that a minority of
the employers will still attempt to game the system. And you
also address that we need to address both the contentious and
the unscrupulous employers.
Do you have any reference that I have missed in
unscrupulous employees? And what percentage of the employees
would you suspect are unscrupulous?
Mr. Rosenblum. Well, all of the undocumented ones are
attempting to break our law. I would agree with that.
Mr. King. Thank you. A well-stated point, and I appreciate
that.
Turning to Mr. Yale-Loehr, how would you suggest Congress
determine the number and type of needed workers? Would you put
a cap on that? Listening to some of your testimony, I didn't
get that sense that you would.
Mr. Yale-Loehr. I think that is a large issue, and I think
it needs to be considered carefully.
There have been various proposals about how to handle any
temporary worker program. The Migration Policy Institute, for
example, convened a task force of experts last year and came
out with some very good recommendations on how to deal with the
temporary worker program, generally.
I think there has to be collaboration between the
government and employers to be able to figure out what the true
labor shortages are, and I think some kind of advisory panel to
say that we have a labor shortage in this industry this year,
therefore we need workers, would be one way to deal with it.
So I don't know that we need to have a fixed cap. I think
that we have seen in other areas of immigration law, like the
H-1B area, that fixed caps do not work. On the other hand, I am
not for open borders where anybody can just cross the borders.
Mr. King. I just happened to notice that in your written
testimony it says that we need a temporary worker program large
enough to allow most foreign workers to enter the United States
legally. And in your verbal testimony, your statement was large
enough to accommodate our labor shortages.
What criteria would you use? Would you let the market
demand determine, as long as there was a willing employer and a
willing employee? Doesn't that connote that we are then a
Nation that is an economic Nation, a Nation of opportunity, a
giant ATM, rather than a Nation of people that has a soul and a
heart and a culture and interests beyond those of an employer
that is willing to hire an employee regardless of the price of
that wage?
Mr. Yale-Loehr. Well, I think President Bush has said that
he wants to match willing workers with willing employers, and I
think----
Mr. King. You concur?
Mr. Yale-Loehr [continuing]. That as long as we do that
carefully, I think that is an appropriate way for Congress to
act.
Mr. King. You would make the economic decision only, then.
You wouldn't consider the cultural implications that I have
mentioned.
Mr. Yale-Loehr. I think those are one factor, but I think
immigration generally is healthy in the United States. So I
think that has helped our culture over time.
Mr. King. How would you measure that?
Mr. Yale-Loehr. I think that is very hard to measure. I
don't have a way to put that into a concrete system.
Mr. King. Thank you.
Mr. Shandley, I want to say first off, as the Member of
Congress who represents the number-one pork production district
in America, we appreciate Swift & Company. You provide a
fantastic market for our producers there. And whatever we
discuss with regard to immigration has no implication upon the
character or the efficiency or the people whatsoever. And I
want to thank you for providing that market. That has been an
interest of mine as well.
I wanted to ask you--and you have gone through quite a lot
since last December, and I have watched it closely since
Worthington, Minnesota, is to my north and Marshalltown, Iowa,
is just to my east. We pay attention. Also, Grand Island,
Nebraska, to my west.
Have your competitors undergone the same scrutiny that
Swift & Company has?
Mr. Shandley. To our knowledge, no.
Mr. King. Do you consider that to be a disadvantage now to
you competitively? Or there is another way to phrase that
around the other way. Do your competitors have an advantage
that you don't have because they have not undergone the same
scrutiny?
Mr. Shandley. We believe that is the case, both at the
customer level as well as at the employment level.
Mr. King. Have you made the case to ICE or to Justice that
you have been now put with a spotlight on you in the Nation and
it puts you at a competitive disadvantage?
Mr. Shandley. We have made that case to anybody that will
listen, including ICE.
Mr. King. Then I assume you welcome that question, as well,
and appreciate that.
In the past, is there a history of INS or ICE raids with
Swift that have gone on in previous year? How many times has
this happened?
Mr. Shandley. You know, the industry has gone through
raids. The most recent part of that was in the late 1990's. And
Swift & Company in Nebraska had facilities in Nebraska when
those raids occurred.
Mr. King. Thank you, Mr. Shandley.
Appreciate all your testimony.
Thank you, Madam Chair. I yield back.
Ms. Lofgren. Thank you very much.
I now recognize the gentleman from California, Mr. Berman,
for his questions.
Mr. Berman. My first one really isn't so much about
employers, but I do hope to be able to get into that. It is
this willing employer/willing worker. The fact is, scarcity or
shortage is a way by which workers can increase what they get
paid or get better conditions. That is the marketplace.
In a universe where you decide the number of guest workers
by a willing employer/willing worker standard, for all intents
and purposes, you remove that friction or that scarcity because
there is somebody in Bangladesh who will do it.
Now, you have minimum wage laws, but now you are
essentially condemning lots of workers to being at the legal
bottom and I just want to make that observation, without
getting into----
Mr. Yale-Loehr. If I could respond to that, if you don't
mind.
I certainly believe we have to have full enforcement of all
of our labor protections and I agree entirely with Dr.
Rosenblum's comments in his written testimony, that we need to,
for example, repeat Hoffman Plastics. We need to have a lot
more vigorous labor protection so that immigrant workers, as
well as U.S. workers, get the full protection of our labor
laws.
Mr. Berman. I agree with that very strongly, but that
doesn't really deal with the underlying point, that the minimum
labor protections, even if strongly enforced, are not
necessarily what--at some point, that farm worker who has been
there 10 years has some expectation of getting more than the
minimum wage in a willing employer/wiling worker universe,
somebody is quite willing to take his or he job for the minimum
wage.
But anyway, there is a--even in my own mind, there is a
tension here. I do think we need a legal avenue for people to
come in and perform jobs. How expansive it is, to what extent
it should be capped, and what the tests for industries or jobs
that are eligible for those folks are is a tougher question.
On the verification, I guess, Dr. Rosenblum, since the
Chair introduced you as an expert on the technologies, you
essentially described the most fulsome kind of system and the
most effective system, the system that will avoid the Swift
problem, most likely, as a fairly intrusive system with a great
deal of forward-funding for infrastructure.
The government is going to essentially--or employers are
going to underwrite equipment and communication systems that
give quick and accurate answers very quickly. I don't think
this thing works without that. I think otherwise we have some
sort of repeat of 1986 again.
What can we do to take that element, which you made a brief
reference to--changing the whole nature of questions of privacy
and individual liberty and misuse of information. Can we both
make the investment and decide to implement as effectively and
quickly as possible that kind of system, and at the same time
safeguard and limit the change in the nature of those
relationships such that concerns about misuse of information
can be alleviated to the greatest extent possible?
Mr. Rosenblum. I think that is exactly the right question,
and the record so far, including the Federal Government's
record in protecting private data, doesn't give us a lot of
reasons to be confident that we can----
Mr. Berman. Well, let me interject.
One area that I was particularly focused on, in the 1986
law, one of the arguments against the legalization program was
people will come forward to get legalized, if they didn't
qualify they will be turned over to enforcement and they will
be immediately deported. I am unaware of a single--we put in
prohibitions on that kind of sharing--and I am unaware of one
instance where that actually happened.
Why can't you create firewalls and limitations on the use
of information that by and large will be effectively maintained
and enforced and thereby protect----
Mr. Rosenblum. I think the reason it is challenging to
protect that data is that, as we invest the data with a lot of
importance in the context of this system, we create a market
for it. So there will be people who, you know, will seek to
obtain it, and so the more valuable it is, the more vulnerable
it is.
I think that there are ways to phase in this system, even
before we assemble the complete biometric database that is such
a threat in the ways that you just observed, by relying on sort
of data-mining strategies to look for probable cases of
noncompliance.
In doing that, we will end up targeting employers who
intend to comply but aren't able to do so successfully. But to
my knowledge and in my estimation, there is no way to come up
with a truly foolproof verification system without building
this database and building that database is inherently a threat
to our privacy and inherently restructures our relationship
with the State and with employers.
So I think that Congress should certainly invest a lot of
time and energy in doing what you can to safeguard that data
and to try to limit it to the purposes of employment
verification and both the Strive Act and last year's Senate
S.2611 have some very sensible provisions that way, but I think
that we should go into it with our eyes open and recognize that
those protections are going to be imperfect.
Ms. Lofgren. The gentleman's time is expired.
The gentlelady from California, Ms. Sanchez, is recognized.
Ms. Sanchez. Thank you.
Mr. Yale-Loehr, you mentioned that Congress didn't
terminate employer sanctions following a 1990 GAO report that
showed sanctions have created a serious pattern of
discrimination. You also note that over time it has become
clear that employer sanctions aren't working effectively and I
think in your written testimony you said that in the end, fraud
and discrimination took over the system.
Can you explain a little bit how fraud and discrimination
took over that system?
Mr. Yale-Loehr. Well, I think, as I mentioned in my
testimony, as it became clear that the immigration agency was
not effectively enforcing employer sanctions, employers decided
they didn't really have to worry about it, and they were more
willing to take fake documents.
Similarly, particularly back in the 1980's, it was easy to
obtain fake documents. We didn't have the same kind of
counterfeit resistant documents that we do today. So it was
easy for fraudulent documents to flood the market. So that is
why employer sanctions gradually came to be seen as a joke.
Ms. Sanchez. Do you know what percentage of employers ever
got investigated or fined?
Mr. Yale-Loehr. Yes. There are some statistics in my
testimony as well, and Dr. Rosenblum's testimony. I don't
recall what the overall percentage of U.S. employers is,
however.
Ms. Sanchez. So you don't think employer sanctions was an
effective deterrent in that regard?
Mr. Yale-Loehr. In part because we didn't have consistent
enforcement.
In 1999, Immigration and Naturalization Service made
worksite enforcement the lowest of its five investigatory
priorities. So with that kind of background, it is hard for any
system to be effective.
Ms. Sanchez. We hear terms all the time, the cost of doing
business, the businesses take the risk because what they save
in terms of wages that they have to pay far exceeds their risk
for enforcement of being caught employing people that they
shouldn't be employing and paying whatever minimal fines at the
end of the day end up being assessed.
What recommendations do you have for protecting against
discriminatory hiring practices?
Mr. Yale-Loehr. I think we have some decent provisions in
current law. We also have expansions of that proposed in the
Strive Act that I think are worth considering.
I also think we need to give more money to the Office of
Special Counsel and the Department of Justice so they can go
out and enforce those laws.
Ms. Sanchez. And any suggestions on how we could protect
against the fraudulent aspects of verification?
Mr. Yale-Loehr. I think Dr. Rosenblum has expressed the
fact that it is hard to make sure that the person who presents
the documents really is the person who belongs to those
documents, and that is a large challenge that we all have to
face.
Ms. Sanchez. Okay.
Mr. Rosenblum, in your written testimony, you discuss at
length the problem of false negatives and how they can
adversely effect even United States citizens.
In your opinion, when the Basic Pilot program or any new
system is built, who should compensate work eligible citizens
who are wrongly denied the right to work by DHS data errors or
by bureaucratic errors?
Mr. Rosenblum. Well, certainly, if the errors are on the
part of DHS and the government database, then I would see it as
the government's responsibility to compensate the workers for
those lost wages, both the Strive Act and last year's Senate
bill had provisions for that.
Ms. Sanchez. Okay, great. Thank you.
I have no further questions. I yield back my time.
Ms. Lofgren. Thank you.
The gentlelady yields back.
We have been joined by the Chairman of the full Committee,
Mr. Conyers, who advises me he wishes to put his opening
statement in the record but does have questions.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
As we heard during the course of last week's two hearings, prior
immigration reform efforts--especially the 1996 reforms--sought to
substantially toughen enforcement of our immigration laws, but their
implementation has been virtually nonexistent. Nowhere is this better
illustrated than our broken worksite enforcement system.
After years of utter neglect, the Administration has just recently
stepped up its worksite enforcement efforts. This increased flurry of
activity comes at about the same time that the Administration is
calling for long-term immigration solutions and the normalization of
undocumented workers.
These recent large-scale raids at various businesses across the
Nation, however, reveal massive problems with our current worksite
enforcement system.
First, worksite enforcement should not be a used as a tool of
retaliation--whether in response to formal organizing activities or as
a way to punish individual employees who demand their rights as
workers. Such retaliatory actions are an abuse of the legal process.
Such misuse of our limited enforcement resources is unfair not only to
the workers and their representatives, but to the federal immigration
agents who must conduct these enforcement efforts. Worksite enforcement
should not be used to profit unscrupulous employers.
Second, employers should be able to rely--in good faith--on an
employment verification system, such as under the Basic Pilot program.
Such voluntary participation should be rewarded, not punished. We must
ensure that businesses that participate in a verification process do
not instead end up as targets of that very system as a result of their
participation.
Third, many of these worksite enforcement actions have caused
humanitarian crises in their wake. As we know, many undocumented
workers belong to blended families, often comprised of legitimate
immigrants and American citizens. In the course of several recent
worksite enforcement raids, however, many of these families were torn
apart. Children were abruptly separated from their parents who had no
means to communicate with their children or to make alternative care
arrangements. These children were unexpectedly stranded or left to fend
for themselves while their parents were detained.
If we are to achieve a controlled, orderly, and fair immigration
system, we must look at the flaws in the current system. Yes,
enforcement is important. But so are people and the communities in
which they live. The enforcement regime can be fixed. It must be fixed.
We must keep that in mind as we move forward on comprehensive
immigration reform.
Ms. Lofgren. Welcome, Mr. Conyers.
Mr. Conyers. Thank you, Madam Chairman and my dear friend.
We are happy that this is the third hearing trying to
examine how we got to where we are from the 1996 reforms.
But we had enforcement, tough enforcement, but there was no
implementation. Now we are looking at broken worksite
enforcement systems.
And, Mr. Shandley, I just want to try to capsulize your
testimony about the company, the union, that represents your
workers and how you have addressed the needs of this vulnerable
population. What do you suggest employers do to avoid the fix
that you ended up in, trying to cooperate?
Mr. Shandley. Well, I don't know if an employer can, that
has the power--especially an employer like Swift, who has
complied with the laws of the land. And ultimately we do
believe that it is immigration reform.
We focus on the documents, not on the individuals, when we
hire, and the key is that the quality of the documents and do
they relatively or reasonably relate to the individual in front
of us. And the testimony that is at hand would go a long way
toward helping employers continue to abide by the laws of the
land.
Mr. Conyers. I am glad to see that you don't have a chip on
your shoulder and you don't bring a bad attitude to this
hearing. We were thinking that you would been put in a pretty
awkward place through the selective enforcement of these
worksite requirements.
Should I sleep better in my bed at night knowing that it
wasn't as bad as we were hearing that it was?
Mr. Shandley. No, sir. Absolutely not. The chip is just
deep inside right now. [Laughter.]
Mr. Conyers. Well, thank you very much.
I just wanted to, on the record, commend you and the
representative of your workers in the collective bargaining
system for the work you are doing. And we would invite you to
follow along with us as we try to shape a whole new approach in
immigration legislation that minimizes what happened to you.
Because, otherwise, let us face it, what is the point if
you are going to get busted for trying to comply and comport
with the law? And that is the spirit that I bring to this
Committee, and I certainly admire your spirit to come and
testify before us.
Thank you, Madam Chairman.
Mr. Shandley. Put us at the head of the line on
cooperation.
Ms. Lofgren. Will do.
I would like to recognize now the gentlelady from Texas for
5 minutes.
Ms. Jackson Lee. Good afternoon.
Let me thank the Chairwoman and the Chairman of the full
Committee and the Ranking Member. This is an instructive way of
creating what I call a pathway to a sensible response to our
immigration crisis.
Let me characterize what many have described as government
officials doing their job and, might I say, that the line
officers on the ground, the ICE officers on the ground, are to
be commended for their service. They are obviously being
instructed on the basis of policy and on the basis of believing
that they are correcting the crisis in the immigration
structure in the United States.
I claim it to be a reign of terror, because it does not
create order. It does not create adherence to the law. It
creates chaos and confusion.
I come from Houston, Texas. Any number of times I will tell
you of the panic that runs through the community when rumor has
it that apartment buildings will be raided, that jobsites will
be raided. Nothing constructive comes out of it. And as you
have your meatpacking responsibilities, we happen to have an
energized construction effort.
Now, I would make the argument that there are wide numbers
of Americans that can be employed and we know together we are
going to make an effort to ensure that happens. But we also
know that there are many times jobs going longing, wanting, and
there are employers, even though we have been faulty in
enforcement, there are employers who simply ask, such as my
construction industry, give me a system, let me follow an
adequate system and I will comply.
So we failed on two ends. One, whether or not this Pilot
program is even effective, one because there are inaccuracies,
wrong names. It makes it very difficult and we don't know if it
works, and I understand the witness said hundreds of millions
of dollars for it to work.
So I am going to start with Dr. Rosenblum, whose experience
I think started on the Senate side. Would a more corrected
system of identification, of who is here, accurate, orderly
system of documentation, something like we are trying to frame
as we move forward in comprehensive immigration reform--several
bills, as you know, have been filed. The Senate is still
looking. But the concept is to find order where there is
disorder and chaos.
Would that begin to build a serious employer verification
program?
Mr. Rosenblum. Certainly, knowing who is here, bringing
people out of the shadows, but also knowing, building a
database, a reliable database of U.S. Citizens as well, because
it is the same database, because when an employer is checking
an employee's status, the employer doesn't know. So the
database has to have access to both U.S. citizen data and
immigrant data.
Ms. Jackson Lee. That is interesting.
Mr. Rosenblum. And that is absolutely the critical step in
any kind of employment verification process, is to verify
somebody's work eligibility. So without that, we can't possibly
do it properly.
Ms. Jackson Lee. And any efforts to merge a system that has
citizens and non-citizens or undocumented would be at least a
step going in a corrective direction.
Mr. Rosenblum. There has been a lot of focus on the
interoperability of the FSA and the DHS databases. Currently,
what happens is that Basic Pilot basically queries both
databases. It is a system of systems system. And database
experts don't really consider that particularly problematic. It
is not ideal, but that is not really where the problem is.
The problem is that both of these databases have lots of
errors in them.
Ms. Jackson Lee. Clean it up.
Mr. Rosenblum. Clean them up. And the real challenge is
that ultimately the only way we can clean them up is to query
them, is to have people go through the system. So we won't
really know until we start enrolling people.
And so what the Senate bill conceived last year was to go
ahead and start that query process, but to not non-confirm
people until we are sure that we have got all those errors
fixed and so to do the query and give people the opportunity to
clear up their records, but to not fully turn on the
enforcement until we have done that enrollment through the
program.
Ms. Jackson Lee. John Shandley, thank you very much. There
is only one employer, I believe, sitting here, so we are going
to put the heavy burden of employers on you.
Are you coming to this Committee complaining that you don't
want to be part of a process of verification or are you asking
for relief in the instance of a corrected list, a list that
works, error-free list? What are you saying about employer
compliance with knowing who they are employing?
Mr. Shandley. Swift wants to be part of the solution, and
the solution requires a whole systematic fix, both in the
databases as well as the processes, ultimately down to how does
the U.S. allow people to come into the U.S. to work.
But, you know, we are not here to complain. We feel that we
were unfairly treated, especially for somebody who complies
with all of the laws. But, you know, that is water under the
bridge.
What we do have to do as an employer going forward, we do
have to find a system of which we have the confidence that the
government looks at and we look at in the same light, that is
truly accurate and workable from a legal standpoint.
Ms. Jackson Lee. Madam Chairperson, I know the time is out,
but I just simply want to make the statement on the record. For
some reason, it has been given to the public that those of us
who believe in comprehensive immigration reform are running
away from legal structure. Employer verification is one. It is
a very sensitive issue.
I would like to be on the record that I am not running away
from it, but I think that you cannot have employer verification
that works without a system that documents those who are
undocumented and a fair system of immigration reform.
With that, I thank you, and I yield back.
And I thank the witnesses for their testimony.
Ms. Lofgren. Thank you very much.
Thanks to all of the witnesses for their testimony today.
Without objection, Members will be given 5 legislative days
to submit any additional written questions to these witnesses
as well as the first panel. And we ask that witnesses answer
questions as promptly as they can so that the answers can be
made part of the record.
And, without objection, the record will remain open for 5
legislative days for the submission of any other additional
material.
I think this hearing today has helped to illuminate
numerous issues about the Nation's employment verification and
worksite enforcement system. It has been very helpful to me,
and I think it will be helpful to the Congress as we move
forward.
Somebody asked me earlier what are we doing with these
hearings, and I said we have a secret plan to be well-informed
when we actually take action.
So to that end, our next hearing is planned for 9:30,
Thursday morning, in the room downstairs, 2141. That will be
potential solutions to some of the issues that have been
outlined here today.
We are aware that we lost our dear colleague, Juanita
Millender-McDonald. The funeral arrangements are being made. If
the funeral for Juanita conflicts, our hearing will be
postponed to the following week. Otherwise, we will proceed at
9:30.
And, again, thank you so very much for taking your time to
help the Congress on this very important questions.
This meeting is adjourned.
[Whereupon, at 12:46 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Letter from Jonathan R. Scharfen, Deputy Director, United States
Citizenship and Immigration Services, Department of Homeland Security
to the Honorable John Conyers, Jr., Chairman, Committee on the
Judiciary
INS Basic Pilot Evaluation Summary Report submitted to the U.S.
Department of Justice, Immigration and Naturalization Service, prepared
by the Institute for Survey Research, Temple University, and Westat on
January 29, 2002
Interim Findings of the Web-Based Basic Pilot Evaluation submitted to
the U.S. Department of Homeland Security, prepared by Westat in
December 2006, and accompanying letter from Jonathan R. Scharfen,
Deputy Director, United States Citizenship and Immigration Services,
Department of Homeland Security to the Honorable Zoe Lofgren,
Chairwoman, Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law
``Alternative strategies for preventing false negatives and identity
theft problems iin an electronic eligibility verification system'' by
Marc Rosenblum, Ph.D., Department of Political Science, University of
New Orleans