[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
PROPOSALS FOR IMPROVING THE ELECTRONIC EMPLOYMENT VERIFICATION AND
WORKSITE ENFORCEMENT SYSTEM
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
APRIL 26, 2007
Serial No. 110-18
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
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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
APRIL 26, 2007
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
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
The Honorable Elton Gallegly, a Representative in Congress from
the State of California
Prepared Statement............................................. 7
The Honorable Ken Calvert, a Representative in Congress from the
State of California
Oral Testimony................................................. 9
Prepared Statement............................................. 11
The Honorable David Dreier, a Representative in Congress from the
State of California
Oral Testimony................................................. 12
Prepared Statement............................................. 14
The Honorable Silvestre Reyes, a Representative in Congress from
the State of Texas
Oral Testimony................................................. 23
Prepared Statement............................................. 24
The Honorable Luis V. Gutierrez, a Representative in Congress
from the State of Illinois
Oral Testimony................................................. 25
Prepared Statement............................................. 27
The Honorable Jeff Flake, a Representative in Congress from the
State of Arizona
Oral Testimony................................................. 28
Prepared Statement............................................. 29
Mr. Randel Johnson, Vice President, Labor, Immigration & Employee
Benefits, U.S. Chamber of Commerce
Oral Testimony................................................. 42
Prepared Statement............................................. 45
Mr. Robert Gibbs, Partner, Gibbs Houston Pauw, on behalf of the
Service Employees International Union
Oral Testimony................................................. 55
Prepared Statement............................................. 57
Mr. Jim Harper, Director of Information Policy Studies, The Cato
Oral Testimony................................................. 69
Prepared Statement............................................. 71
Ms. Jessica Vaughan, Senior Policy Analyst, Center for
Oral Testimony................................................. 88
Prepared Statement............................................. 90
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 John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 5
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................................ 6
Material Submitted for the Hearing Record
Prepared Statement of Susan R. Meisinger, President and CEO,
Society for Human Resource Management and Chair, HR Initiative
for a Legal Resource........................................... 105
Joint Statement of the Air Conditioning Contractors of America,
the Associated Builders and Contractors, the Associated General
Contractors, the Mason Contractors Association of America, the
National Association of Home Builders, the National Roofing
Contractors Association, the National Utility Contractors
Association, and the Plumbing-Heating-Cooling Contractors--
National Association........................................... 128
Prepared Statement of the Electronic Employment Verification
System Working Group by Angelo I. Amador, Co-Chair United
States Chamber of Commerce; Kelly Knott, Co-Chair, Associated
General Contractors of America; and Scott Vinson, Co-Chair,
National Retail Federation/National Council of China
Prepared Statement of the Essential Worker Immigrant Coalition... 143
Prepared Statement of the National Council of La Raza............ 145
Prepared Statement of Tyler Moran, Employment Policy Director,
National Immigration Law Center................................ 152
PROPOSALS FOR IMPROVING THE ELECTRONIC EMPLOYMENT VERIFICATION AND
WORKSITE ENFORCEMENT SYSTEM
THURSDAY, APRIL 26, 2007
House of Representatives,
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 9:42 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Berman, Waters, Sanchez,
Ellison, King, Gallegly, and Goodlatte.
Staff present: Ur Mendoza Jaddou, Chief Counsel; J. Traci
Hong, Majority Counsel; George Fishman, Minority Counsel; and
Benjamin Staub, Professional Staff Member.
Ms. Lofgren. I would like to open the hearing of the
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law and welcome the Subcommittee
Members, the witnesses, and the public.
This is the Subcommittee's fifth hearing on comprehensive
immigration reform. This week, we have been focusing on the
inability of existing 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 the employment of
unauthorized immigrants. At our hearing on Tuesday, we learned
that the employment verification systems created in 1986 and
1996 have failed to meet the critical need of verifying
We heard expert witnesses identify several problems with
current Form I-9 paper employment eligibility verification
systems created in 1986 and required to be completed by all
employers and all workers in the United States each time a
person gets a new job, as well as the Basic Pilot program
created in 1996 and used voluntarily by 16,000 employers across
The problems included: the use of fraudulent documents,
including the use of documents by a person other than to whom
they belong to gain employment; an unacceptably high number of
errors in the Social Security Administration and U.S.
Citizenship and Immigration Services databases leading to false
negatives for U.S. citizens, legal permanent residents, and
other work-authorized individuals erroneously denied work
authorization; employer discrimination against work-authorized
individuals who look or sound foreign; problems in processes
and protections for workers and employers who suffer from
erroneous denials of employment verification; and concerns
about the protection of SSA and USCIS data from theft exposure,
and other privacy issues.
These are serious and legitimate concerns that must be
addressed so that we may move from today's voluntary
participation of 16,000 employers in the Basic Pilot program to
mandatory participation by all 7 million employers in the
I look forward to the testimony of our witnesses today, all
of whom provide proposals on employment verification. I am
particularly interested in how each of the proposals presented
here today will address the concerns raised during our Tuesday
hearing. It is time for accurate and workable solutions on
Today's hearing should be the first step in developing an
appropriate system that accurately verifies the employment
eligibility of workers in the United States to prevent the
employment of unauthorized immigrants.
I would now like to recognize our distinguished Ranking
minority Member, Mr. Steve King, for his opening statement.
[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
I would like to welcome the Immigration Subcommittee Members, our
witnesses, and members of the public to the Subcommittee's fifth
hearing on comprehensive immigration reform.
This week, we have been focusing on the inability of existing 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 the employment of
At our hearing on Tuesday, we learned that the employment
verification systems created in 1986 and 1996 have failed to meet the
critical need of verifying employment eligibility.
We heard expert witnesses identify several problems with the
current Form I-9 paper employment eligibility verification system,
created in 1986 and required to be completed by all employers and all
workers in the U.S. each time a person gets a new job, as well as the
Basic Pilot program, created in 1996 and used voluntarily by 16,000
employers across the nation. The problems included:
The use of fraudulent documents, including the use of
documents by a person other than to whom they belong, to gain
An unacceptable high number of errors in the Social
Security Administration (SSA) and U.S. Citizenship and
Immigration Services (USCIS) databases leading to ``false
negatives'' where U.S. citizens, legal permanent residents, and
other work authorized individuals are erroneously denied work
Employer discrimination against work authorized
individuals who look or sound foreign;
Problems in processes and protections for workers and
employers who suffer from erroneous denials of employment
Concerns about the protection of SSA and USCIS data
from theft, exposure, and other privacy issues;
These are serious and legitimate concerns that must be addressed so
that we may move from today's voluntary participation of 16,000
employers in the Basic Pilot program to mandatory participation by all
seven million employers in the U.S.
I look forward to the testimony of our witnesses today, all of whom
provide proposals on employment verification. I am particularly
interested in how each of the proposals presented here today will
address the concerns raised during our Tuesday hearing.
It is time for accurate and workable solutions on employment
verification. Today's hearing should be the first step in developing an
appropriate system that accurately verifies the employment eligibility
of workers in the U.S. to prevent employment of unauthorized
Mr. King. Thank you, Madam Chair. I appreciate you holding
this hearing today.
Today's hearing is a continuation of last Tuesday's hearing
on the Basic Pilot Employment Eligibility Verification System.
We will examine what we can do to make that system work better,
especially to combat identity fraud.
I appreciate these two hearings on the topic since accurate
employment eligibility is essential in order to have successful
U.S. immigration policy.
Illegal employment is the biggest incentive for illegal
immigration and if we don't do everything we can to end the job
magnet, we will never have national security or economic
I am pleased that our first panel of witnesses consists of
several of our House colleagues who have taken leadership roles
on this issue. Mr. Calvert has reintroduced his bill to make
the use of the Employment Eligibility Verification System, the
Basic Pilot program, as we know it, make them use that for all
U.S. employers and phase it in over a 7-year span.
That phase-in system was laid out by Mr. Calvert's
legislation. It is an inspiration for the Employment
Eligibility Verification provisions in last year's Border
Protection, Antiterrorism and Illegal Immigration Control Act.
It passed the House by a vote of 239 to 182.
Aside from the use of the Basic Pilot Employment
Eligibility Verification program, the other way to ensure
employment eligibility is the use of machine-readable,
tamperproof biometric Social Security card by all jobseekers.
Mr. Dreier has proposed that in H.R. 98, the Illegal
Immigration Enforcement and Social Security Protection Act of
2007. He developed it along with Border Patrol Union Chief T.J.
Bonner, who has been before this Committee a number of times.
Such a card would directly combat the theft or misuse of a
Social Security number.
Mr. Gallegly, a longtime Member of this Subcommittee and
the deputy Ranking Member, has introduced several pieces of
legislation aimed at improving the Employment Eligibility
Verification process. For instance, H.R. 136 would require the
Social Security Administration to notify DHS, the Treasury
Department, and the individual rightfully possessing a Social
Security number that has been submitted by one employer eight
or more times at at least four different addresses. And H.R.
850 would require the IRS to withhold and tax refunds of earned
income tax credit from any alien whose work authorization had
expired but did not stop working in the United States.
At Tuesday's hearing, the U.S. Citizenship and Immigration
Services witness discussed the Basic Pilot program, or the
EEVS, in general and some of the improvements that have been
brought forward to the system. I was particularly interested in
the fact that the system works so quickly. Over 92 percent of
the inquiries get a response within 3 seconds, and I have run
that system myself and the longest delay I could find was 6
seconds. But 99.8 percent of U.S.-born citizens receive
confirmation in that period of time.
We also heard the exception here, which I think we need to
pay attention to. Foreign-born employees have been more likely
to receive a tentative non-confirmation, though. A total of 1.4
percent of work-authorized employees received a tentative non-
confirmation. So it worked pretty good.
In the past, there was often a 6 to 9 month delay between
an immigration's arrival in the United States and the
availability of information in the DHS databases for
verification purposes. That delay is now down to around 10
USCIS is taking steps to improve EEVS, the Basic Pilot.
They are conducting a pilot program that allows employers to
make sure the worker standing in front of them matches the
picture on file with the DHS employment authorization
documents. USCIS is adding more data source to the database and
monitoring for patterns of fraud, employment discrimination,
and employer misuse. These are steps in the right direction,
and it is open to making even more improvements.
For the most part, the witnesses at Tuesday's hearing
agreed that the biggest problem facing the EEVS system is it
vulnerability to identity theft. To combat this, DHS must have
access to Social Security Administration data so it can
investigate situations in which a single Social Security number
was submitted more than once by a single employer or where a
number was submitted by multiple employers in a manner that
Of course, Mr. Dreier's proposal deals with identity fraud
directly. One question, though, is whether there is consensus
for a biometric Social Security card. I am interested in the
witnesses' testimony today. I recognize there are also
proposals brought forth by Mr. Reyes this morning, and by the
Flake-Gutierrez proposal that we will hear this morning and I
am interested in that testimony as well.
It is really pleasing to me to see this kind of activity on
the part of Members, the leadership role that has been taken. I
look forward to your testimony.
I thank you again, Madam Chair, and I yield back.
Ms. Lofgren. Thank you, Mr. King.
We are pleased to be joined by the Chairman of the full
Judiciary Committee today, and I would now invite Chairman
Conyers for any opening remarks that he may have.
Mr. Conyers. Thank you so much. I would like permission to
put my statement in the record.
Ms. Lofgren. Without objection.
Mr. Conyers. And I just want to congratulate this new
Lofgren-King alliance that is leading us through a subject-
matter by subject-matter inquiry into this huge, complex
subject. I am very proud of the way that you are moving on
The only point I wanted to make in my whole statement is
this problem of worker exploitation or retaliation. You see,
when a company like Swift wants to help find out who is a legal
worker and who isn't, and it turns out that this is like
putting cheese out for a mouse, then you spring on the people
that have provided you the information and, guess what, you are
the bad guy. And that is not going to attract a lot of support
as we go along.
We have got to have safeguards, and the privacy concerns
must be taken into consideration. And I am so happy to see this
thoughtful group of Members putting their bills and ideas right
on the line. Let's put everything--whatever you have got, put
it on the table, ladies and gentlemen, because this train is
moving out and we are going to come out with a bill. It is
And the challenge for us is how do we do it and accommodate
so darned many competing interests, and it is in that spirit
that I issue and extend a warm welcome to you, and I
congratulate our Subcommittee Chairwoman.
[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
Earlier this week, the Subcommittee held a hearing examining
problems in the current employment verification and worksite
enforcement systems. Today, we have an opportunity to study possible
solutions to these problems.
One possible solution concerns the electronic employment
verification system, also known as ``EEVS.'' This system is now
recognized as playing an increasingly critical role in comprehensive
immigration reform. To ensure that the system will--in fact--actually
be a solution, it must be efficient, enforceable, and evenhanded. And,
there must be safeguards to prevent abuse.
Let me explain each of these requirements.
First, EEVS must be efficient. Without doubt, the verification
requirements of the 1986 immigration law reforms became substantially
undermined by the increasing availability of fraudulent identification
documents. While pilot programs established under the 1996 immigration
law reforms sought to verify the identity of prospective employees
through government databases, these programs have been plagued with
bureaucratic red tape and extensive false negatives.
Clearly, if an employment verification system is not reliable and
easy to use, employers simply will not utilize it and we will simply be
left--again--with a broken immigration system. For example, we learned
earlier this week about the odyssey of a staffer on this very
Subcommittee who encountered the problem of ``false negatives'' when
she began her employment with us. One can only imagine how different
her experience would have been if she was a low-wage worker in a rural
area without the support of a Congressional subcommittee behind her.
Clearly, an EEVS system must be fair to everyone, not just the educated
or informed users.
Second, this system must be enforceable and evenhanded. By this, I
mean that the system should have appropriate incentives and sanctions.
As we heard the other day from one company that tried to comply with a
pilot verification program in good faith, it paid substantial
consequences. We should not punish employers that voluntarily seek to
comply with Federally-sanctioned employment verification programs.
Third, the system must have safeguards so that it does not become a
tool of worker exploitation or retaliation whether in response to
formal organizing activities or as a way to punish individual employees
who demand their rights as workers. Unscrupulous employers should not
be allowed to profit from worksite enforcement. Also, as part of these
safeguards, privacy concerns must be taken into account both from the
perspective of the employee and the employer.
I am pleased that some of our colleagues who introduced bills in
this Congress concerning employment verification systems are here to
discuss their respective proposals and to share their insights on
reform. I extend a warm welcome to each of you for your hard work on
this important issue.
I, of course, express equal appreciation to our other witnesses
from the business community and the public policy sectors. I am
particularly pleased that the representative from the Service Employees
International Union is joining us today. All too often, anti-immigrant
forces have tried to insert wedges in the labor community by alleging
that immigrants will steal American jobs and undercut unionization
Today's debate on the employment verification system today will
certainly contribute to our efforts to enact immigration law reforms
that will result in a system that is controlled, orderly, and fair.
Ms. Lofgren. Thank you, Mr. Conyers.
In the interest of proceeding to our witnesses and mindful
of our schedules, I would ask that other Members submit their
statements for the record within 5 legislative days. And,
without objection, all opening statements will be placed in the
Without objection, the Chair is authorized to declare a
recess of the hearing at any time.
[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 fourth 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 most
recently the difficulty that employers encountered when they attempted
to verify that potential foreign employees have work authorization. We
heard testimony from Marc Rosenblum that false negatives occur during
the I-9 process therefore employers err on the side of caution, making
it more difficult for legitimate documented workers to find employment.
Certainly making a mistake can be costly to an employer.
We heard testimony from the VP of Swift Meat Packing Company, John
Shandley. Mr. Shandley mentioned that they were sued by the Department
of Justice (DOJ) for going too far in trying to determine the
employment eligibility of a potential employee. Eventually they would
settle the case for less than $200,000. Likewise, the recent raid on
Swift plants cost the company over $31 million in lost revenue. More
than 1,200 employees were detained, while Immigration & Custom
Enforcement (ICE) officers searched for undocumented workers. Despite
their difficulties with employment verification, Mr. Shandley expressed
an eagerness to assist us in coming up with practical solutions to this
problem, as Swift held no ill will towards Members of Congress.
As we move towards a practical solution, and consider various
proposals to improve employment verification I want to reemphasize the
three ``E's'' articulated by Stephen Yale-Loehr, enforcement,
evaluation, and entry. There has been a consistent lack of enforcement
on the part of the federal government. Violations of the employment
verification provisions may result in civil penalties ranging from
$100-$1,000 per employee. However, only 417 Notices of Intent to Fine
were issued in FY1999, 178 in FY2000, 100 in FY2001, 53 in FY 2002, 162
in FY 2003, and only three (3) in FY 2004. How can we address the
problem if the agency deemed responsible for enforcing our laws has not
maintained their responsibilities?
Along those same lines we must address the enormous use of
fraudulent documents that occurred as a result of the 1986 and 1996
immigration reform. When Mr. Yale-Loehr spoke about evaluation he
stressed the difficulty that employers encounter when they evaluate the
documents that a potential employee presents for verification. Likewise
the Basic Pilot Program can only verify that a social security number
exist. The Basic Pilot Program can not tell a prospective employer that
the person presenting the social security number is actually the
individual to whom the social security number belongs. Finally let us
speak about entry. Keeping in mind that practicality is the key to
comprehensive immigration reform, Mr. Yale-Loehr mentioned the need for
a temporary guest worker program. While I am a staunch supporter of
protecting our borders, and enforcing our immigration laws, we must
find a way to effectively deal with the 12 million undocumented workers
already here. A guest worker program may be a possible solution.
In conclusion let me say that every single employer in the United
States will be impacted by the new employee verification mandates
Congress enacts as part of comprehensive immigration reform. Therefore
the system must be workable, simple, and reliable. We must also
recognize that employers in the United States are vastly different in
both size and levels of sophistication, and any verification system
that we employ must accommodate those differences. It is time to end
the confusion within the employer verification system because the
consequences for individual workers and the economy are significant.
Ms. Lofgren. We have two distinguished panels of witnesses
here today to help us consider the important issues before us.
In our first panel, we are very grateful to each Member for
being here. We know how busy your schedules are. We have
brought together Members of the House of Representatives who
have introduced bills with provisions on employment eligibility
verification systems in this Congress to discuss their
proposals with us.
I would note that Mr. Gallegly, a Member of our
Subcommittee, has a written statement that will be included in
its entirety in the record but has asked that he not be a
witness because he has another commitment that he is going to
run off to do, and we respect that request on his part.
[The prepared statement of Mr. Gallegly follows:]
Prepared Statement of the Honorable Elton Gallegly, a Representative in
Congress from the State of California
Madam Chairwoman, thank you for holding this important hearing on
one of the most critical issues that must be addressed if our country
is serious about reducing illegal immigration--the development and
implementation of an efficient and secure worksite enforcement system.
Illegal immigration is one of the most serious problems facing our
nation. The high number of immigrants crossing the border illegally has
overwhelmed our schools, hospitals and communities. It is also a direct
threat to our national security and counter-terrorism efforts. Illegal
workers also hurt American workers by taking jobs and keeping wages and
Under current law, a person must provide a social security number
in order to get a job. In many cases, an illegal immigrant simply
provides a false name and social security number. In other cases, an
illegal immigrant adopts the identity of an American who is unaware
that his identity has been stolen until he is refused a loan or
contacted by an irate creditor.
The federal government could stop misuse of Social Security
numbers, but has failed to do so. My legislation would change that.
Every year, employers are required to file W-2 forms with their
workers' names, social security numbers and addresses. Currently, when
the Social Security Administration receives multiple W-2 forms with the
same social security number and different names, it simply ignores it--
even when it is obvious that more than one person is using a Social
In other cases, when an employer files a W-2 with a name and Social
Security number that does not match, the government simply mails the
worker a letter. That's it. There is little or no follow-up.
This has led to a serious accounting problem in the Social Security
program. A GAO report found that as of November 2004, the Social
Security Administration has been unable to resolve discrepancies
involving 246 million W-2's--involving $463 billion--that were filed
with names and Social Security numbers that do not match.
A bill I introduced, H.R. 138, the Employment Eligibility
Verification and Anti-Identity Theft Act, would solve this problem by
requiring workers to resolve discrepancies involving their name and
Social Security number.
A companion bill, H.R. 136, the Identity Theft Notification Act
would require the Social Security Administration to investigate if it
receives information that more than one person is using one Social
If there is evidence of fraud and identity theft, the Social
Security Administration would be required to contact the Department of
Homeland Security (DHS) for prosecution. It would also be required to
notify the innocent owner of the Social Security number, so that he can
take steps to protect his good credit and good name.
I have also introduced H.R. 849, the Stop the Misuse of ITINs,
which would require the Internal Revenue Service (IRS) to notify the
Department of Homeland Security (DHS) when it receives a W-2 indicating
that a foreign national is working illegally. IRS would also be
required to notify the employer that the worker does not have proper
Finally, H.R. 850, the IRS Illegal Immigrant Information Act, would
require that each December the DHS provide IRS with a list of the
people whose work authorization or employment-based visa expired before
the calendar year.
If a return is filed by someone working illegally, IRS would be
required to notify DHS. The IRS would also notify the employer that the
worker does not have proper work authorization and withhold any refund
due or Earned Income Tax Credit claimed.
For example, in December 2007, DHS would provide IRS with the names
and Social Security numbers of foreign nationals whose work
authorization or employment-based visa expired before December 31,
2006. If the IRS receives a W-2 in January of 2008 indicating that the
person continued to work in 2007, the IRS would notify both IRS And the
All four of these bills would give the worker an opportunity to
resolve the discrepancy or provide proof of current employment
Enacting these proposals, in addition to requiring that all
employers use an improved Basic Pilot Program, will substantially
reduce the number of people illegally crossing the border. This will
allow the border patrol to concentrate on securing our borders against
terrorists, drug smugglers and other criminals.
Madam Chairwoman, thank you again giving me this opportunity to
explain my proposals. I look forward to working with you and the
distinguished Ranking Member to identify additional ways to reduce the
number of people who come to this country illegally.
Ms. Lofgren. Let me go to the other Members who are able to
testify before us today.
First on the panel, and who arrived first in the room,
Congressman Ken Calvert represents the 44th Congressional
District of California. Throughout his 15 years of
congressional service, Mr. Calvert has been instrumental in
advancing legislation to protect against identity theft. Prior
to his tenure in Congress, Representative Calvert directed Ken
Calvert Real Properties.
Representative Dave Dreier has been a Member of the United
States House of Representatives since 1981, representing
California's 26th Congressional District. He has served in many
leadership capacities over the years, from Chair of the House
Rules Committee as well as his current position as Chair of the
Republican Congressional Delegation from California, where he
and I very often collaborate. He graduated with a bachelor's
from Claremont McKenna College in 1975 and received his
master's from Claremont Graduate School in 1976.
Congressman Silvestre Reyes has served in the House for 11
years as a Representative from the 16th District in Texas, but
began his career with the U.S. Immigration and Naturalization
Service and the U.S. Border Patrol. He started as a Border
Patrol Agent, rising through the ranks to immigration
inspector, instructor at the Border Patrol Academy and
assistant regional commissioner in Dallas, Texas. During his
time with the Border Patrol, Congressman Reyes was known as an
effective and innovative manager of the border and, of course,
we know him as somebody we can rely on with expertise here in
Representative Luis Gutierrez has represented the 4th
Congressional District of Illinois since 1993. Throughout his
service in the House, he has worked as a stalwart leader on
comprehensive immigration reform. Mr. Gutierrez chairs both the
Congressional Hispanic Caucus, and the Democratic Caucus,
respective Immigration Task Forces. He also sits before us as a
senior Member of this Subcommittee. Before his arrival in
Washington, Congressman Gutierrez worked as a teacher, social
worker, community activist and city official. He graduated from
Northeastern Illinois University.
And, finally, we are expecting Congressman Flake, who is on
his way to testify. Mr. Flake is serving his fourth term
representing the 6th Congressional District of Arizona. Before
serving in the House, Mr. Flake was Executive Director of the
Foundation for Democracy, a foundation monitoring the southern
African nation of Namibia's independence process and, following
his work at the Foundation, he was named the Executive Director
of the Goldwater Institute. Mr. Flake graduated from Brigham
Young University, where he received a BA in international
relations and a master's in political science.
So we will begin with--you all know the drill. Your entire
written statement is part of the record, but we would invite
you to make an oral statement.
And we will start with you, Ken Calvert.
TESTIMONY OF THE HONORABLE KEN CALVERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Calvert. Thank you. I thank my colleague from
California and friend, Chairwoman Lofgren, Ranking Member Steve
King, and the entire Subcommittee for inviting me to testify on
my bill, The Employment Eligibility Verification System.
As you know, there are approximately 16,000 employers using
the Basic Pilot program, and the program continues to evolve to
meet new demands. As you heard this past Tuesday, it is
incorporating a photo tool to enable employers to better verify
the identity of non-citizen new hires. The Basic Pilot program
is also exploring other ways to deter and detect fraudulent
documents, fraudulent or other improper use of the system in
instances where employers fail to properly follow program
The program is developing a system to flag multiple uses of
Social Security numbers in different locations. The Basic Pilot
program has been steadily preparing to go mandatory and is
currently capable of handling 25 to 40 million queries a year.
My legislation, HR 19, would make the Basic Pilot program
mandatory over a period of 7 years. Companies with 10,000
employees or more would be required to be compliant a year
after enactment. Companies with 5,000 employees or more would
be required to be compliant until after 2 years and so on down
to businesses with fewer than 100 employees, which would be
required to be compliant after 7 years. My bill does not
require employers to retroactively check employees already
hired, only newly hired employees.
The current Basic Pilot program was created from
legislation I drafted in the 104th Congress. The legislation
was included in the omnibus consolidated appropriations act of
1997 and several Members of both the Subcommittee and full
Judiciary Committee voted in favor of the bill. In the 107th
Congress and the 108th Congress, the Basic Pilot program was
extended and expanded. Both bills were agreed to by voice vote
in the House.
I recognize there are concerns about the current Basic
Pilot program. The program was not originally designed to catch
identity theft, and I understand this is a desirable capability
to add. However, the United States Citizenship and Immigration
Service is beginning to address this problem through the
development of a photo tool and a new monitoring and compliance
office that will analyze system usage by employers to detect
compliance issues leading to follow-up or referral to
Immigration and Custom Enforcement and the Department of
The question before this Subcommittee and Congress is how
best to build upon an effective, working program for which
Congress has voted for three times. To create a new program
from scratch would be a step backwards that would be hard to
explain to budget-conscious taxpayers.
The Basic Pilot program has the ability and authority to
address the concerns regarding identity theft and with the
support of Congress through the passage of H.R. 19, our country
will continue to have a working employment verification system
with a decade of experience behind it.
Thank you again for inviting me to testify, and I welcome
any questions you may have.
[The prepared statement of Mr. Calvert follows:]
Prepared Statement of the Honorable Ken Calvert, a Representative in
Congress from the State of California
Ms. Lofgren. Thank you, Mr. Calvert, and for your
leadership on this issue.
TESTIMONY OF THE HONORABLE DAVID DREIER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Dreier. Thank you very much, Madam Chairwoman and Mr.
King and Chairman Conyers, Mr. Gallegly, Mr. Goodlatte.
I must say, as I listen to Chairman Conyers talk about this
great Lofgren-King combo that is here, I can't help but tell
you that I am here to offer what I think really builds on that
and is the closest thing to a panacea for this.
Not only do I have as lead cosponsor of my bill, H.R. 98
Silvestre Reyes, but this is a bill that has, as cosponsors,
Elton Gallegly, Bob Goodlatte, Mr. King; you, Madam Chair--I
don't know if you are a cosponsor, you have certainly indicated
an interest in support of it. But I will tell you that I know
that Maxine Waters has been a cosponsor along with Tom Tancredo
and Grace Napolitano.
It really is to me the one measure that we have on this
issue of dealing with immigration reform that does really go
all the way across the spectrum philosophically.
In the last Congress, as we all know, we had 10 votes on
what Mr. King really appropriately in his opening remarks
described as focusing on the supply side, increasing the size
of the Border Patrol, Silvestre's former colleagues, the
building of the fence, utilizing unmanned aerial vehicles and
motion detectors. All of this stuff focused on the supply side
and virtually nothing focused again on what Mr. King talked
about, the demand side, the magnet that draws people into this
Now, this legislation that Silvestre and I have introduced,
we call it H.R. 98. Why? Because 98 percent of the people who
come into this country illegally come here for one reason. They
are looking for economic opportunity. They are looking to feed
their families. They are looking for a job. And if we can end
that magnet that draws people into the country illegally and at
the same time, we hope, see the economy of Mexico and other
countries enhanced to the point where people aren't fleeing
those countries, I believe that we can turn the corner and,
frankly, bring what would be tantamount to an end to this
Now, what we call for is a smart, counterfeit-proof Social
Security card. My brilliant staffer Matthew Daniel Tully has
just given me his original Social Security card. He is a young
guy. I don't know where in the hell mine is. I lost it years
ago. But it is nothing but a flimsy piece of paper, which is
what anybody had going back to 1935.
Not one attempt whatsoever has been made to update since
1935 the Social Security card. Now, I am not a proponent of a
national ID card, but I do know this: if we were to establish a
smart, counterfeit-proof Social Security card--that is not
biometric by the way, Mr. King, all is it is it has an
algorithm strip on the back that the employer would swipe, and
that card would go with information that the Government already
has, no new information, as to whether this person is an
American citizen, if they are here on an H-1B visa, H-2A,
whatever, and I know you are looking at new descriptions of
those visas. But they would have--whether or not that person is
in fact a qualified worker.
And then that information would come back and the employer
would get this, yeah or nay, and they could then hire that
One of the big problems we have had, of course, is lack of
enforcement. And I opposed the 1986 Immigration Reform and
Control Act not only because of amnesty but because of employer
sanctions. But we have employer sanctions today. As we all
know, they are not enforced. I didn't want to see small
businessmen and women turned into Border Patrol agents. I left
that to Silvestre Reyes and his colleagues.
The fact of the matter is we have it today. There is a lack
of enforcement. And what we have seen, and Chairman Conyers
raised this by talking about one particular company, we have
seen many people out there knowingly hiring people who were
Well, what we do with this card is people in this country
looking for a new job, anyone looking for a new job, whether
you are a citizen or not, you would have to have one of these
cards. Now, no retiree would have to have one of these cards.
We are reelected, we don't need to have one of these cards. We
only see people who are in the job force, looking for a new
job, required to have one of these cars.
And I believe that going through a 2-year phase-in, we
could utilize this as a means to take place of the combination
of 94 different documents, as we well know, that people utilize
to get their jobs, I mean, to qualify. I mean school ID cards,
library cards, you know, obviously Social Security cards, and
one of the real problems has been a real abuse of the Social
Now, our problem has been, frankly, the Ways and Means
Committee and the Finance Committee in the Senate and some in
the White House who have opposed this. I have been talking
about this until I was blue in the face for the last 3 years.
And I hope very much that we can--I have testified before the
Ways and Means Committee on this, their Social Security
Subcommittee, and I am hoping very much that we can get them to
move on it. There are a number of people who are concerned
about getting the Social Security Administration involved in
I hope very much, Madam Chair, that we can in fact move
forward and incorporate this as a very important part of our
process. And I thank you all very much for listening to me.
[The prepared statement of Mr. Dreier follows:]
Prepared Statement of the Honorable David Dreier, a Representative in
Congress from the State of California
Ms. Lofgren. Thank you very much, Congressman Dreier.
TESTIMONY OF THE HONORABLE SILVESTRE REYES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Reyes. Thank you, Madam Chair and Members of the
Committee and Chairman Conyers. Thank you so much for holding
this hearing and agreeing to take on what is an important part
of what I think is our national security landscape.
I mention that because whatever the figure is, and we don't
know what that figure is exactly, between 9 million and 12
million people are living in a shadow world in our country
today. So it is incumbent upon us as Members of Congress to
work and find a way to greatly reduce or eliminate this shadow
world because we are concerned that there may be those in that
shadow world, in our country, that are here to harm us and have
that potential as long as that shadow world exists.
I am very proud to be here with my colleagues because I
know all of us want to find a solution to this perplexing issue
and I am particularly proud of my two colleagues here to my
left, Congressman Flake and Congressman Gutierrez, for the
legislation that I have endorsed that is comprehensive in
I think that if we are going to be successful, if we are
going to be able to address the issue that is facing us today,
you have to have three very critical components. You have to
have legalization, you have to have border security and you
have to have a guest worker program. So I am proud to endorse
their legislation, and I hope all Members of Congress take a
close look at that.
We were at the White House yesterday. I will let
Congressman Gutierrez talk more about that meeting, at least I
hope he does, because we had a meeting with President Bush, who
is very much interested for the same reasons of national
security that we address this.
I am also proud to have had a role in H.R. 98 with my
colleague David Dreier, and actually we have introduced this
the last three Congresses, and we have testified a number of
times before this Committee and other Committees about this
proposal. I was thinking as David was speaking. In 1977 I
headed up the first computer program to create a system that
would identify potential legal visitors to this country. It was
called the Alien Documentation Identification and
Telecommunications System. That was in 1977.
I find it incredible, and I find it appalling, that with
all of the advances in telecommunications, all of the advances
in computers and our ability to be able to monitor, that we
haven't come up with a system like H.R. 98 or perhaps one like
my colleague Mr. Calvert was talking about, that we haven't
utilized technology to give us a system that does three very
important things: increases our security by knowing who is
coming into our country; secondly, gives employers the ability
to verify conclusively and therefore takes them out of the loop
in terms of responsibility as to who they are hiring and who is
on their payroll; and, third, puts the onus on the Department
of Homeland Security, where it should be, to enforce our
Nation's immigration laws.
So I am proud to be part of this effort. I hope that we in
this Congress are serious about comprehensive immigration
reform. We can't afford to postpone it a day more. And when
people talk about the cost that it is going to entail, I would
remind all of us, the cost of another hit like the one we took
on 9/11. This is an investment in ourselves. This is an
investment in the future for our children, and our
grandchildren, and the security of our country. It is a
national security issue.
And that is why I believe that comprehensive immigration
reform with those three components--legalization, a guest
worker program and border security, which includes what H.R. 98
does--is so critical and so important. That was our message to
President Bush yesterday. It is I think an understandable and
cohesive message that everybody needs to understand on both the
House and the Senate side.
So thank you very much for taking on this issue. I do have
a written statement.
Ms. Lofgren. The written statement will be included in the
Mr. Reyes. And I will be glad to answer any questions.
[The prepared statement of Mr. Reyes follows:]
Prepared Statement of the Honorable Sylvestre Reyes, a Representative
in Congress from the State of Texas
I would like to begin by thanking Chairwoman Zoe Lofgren and
Ranking Member Steve King for holding this very important hearing
today. As the lead Democratic cosponsor of H.R. 98, the Illegal
Immigration Enforcement and Social Security Protection Act, I have been
pleased to work with my friend and colleague from California, Mr.
Dreier, on the bill, and I appreciate his leadership on this issue.
Before coming to Congress, I served for 26\1/2\ years in the U.S.
Border Patrol. Half of the time I was a Border Patrol Sector Chief,
first in McAllen, then in El Paso. As the only Member of Congress with
a background in border enforcement, I have first-hand knowledge of what
we need to do in order to reduce illegal immigration while keeping our
borders and the nation safe.
I have always said that we need a comprehensive immigration reform
plan with three main components: strengthened border security; earned
legalization for those who qualify; and a guest worker program with
tough employer sanctions. Comprehensive reform is like a three-legged
stool. Without one leg, the stool topples.
I applaud the Committee for today's hearing and for gaining insight
about one of the three components: the need for stricter employer
sanctions. I have witnessed firsthand the difference that tough
employer sanctions can make in discouraging attempted illegal entries
into the United States.
In 1986, the Immigration Reform and Control Act passed Congress and
contained provisions which would penalize employers who hire illegal
immigrants. After enactment, in parts of the country such as the border
region where those of us in law enforcement had the resources to
enforce those sanctions, there was a dramatic decrease in illegal
entries into the United States. Clearly, once word got out that illegal
immigrants were not being hired, the incentive to enter the United
States was gone and attempted entries dropped off considerably.
H.R. 98 would expand and improve on the Immigration Reform and
Control Act by enhancing the protection of Social Security cards and
allowing employers to instantaneously verify a prospective employee's
eligibility to work in the United States. The bill would also increase
civil and criminal penalties for employers who hire illegal immigrants
or fail to verify their employment eligibility.
If properly funded and with appropriate oversight and privacy
protections, H.R. 98 would be an important step toward halting the flow
of people seeking to enter the United States illegally in order to find
employment. Our immigration and border security personnel will then be
able to focus more of their time, effort, and resources on those who
may be trying to enter the country to do us harm.
If we are really serious about enacting comprehensive immigration
reform, we must include tough employer sanctions as one of the
proposals within the final bill. Thank you for allowing me to testify
on behalf of H.R. 98, and I look forward to continue to work with the
Subcommittee in the future.
Ms. Lofgren. Thank you so much.
TESTIMONY OF THE HONORABLE LUIS V. GUTIERREZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. Gutierrez. Chairwoman Lofgren, Subcommittee Ranking
Member Mr. King, full Committee Chairman Mr. Conyers, and I
have to say all of my colleagues here, Mr. Dreier, Jeff Flake
and Silvestre Reyes, I am really delighted and it is such a
pleasure to be here with people with such a wealth of valuable
And I always said that Silvestre always brings such a great
historical perspective given what he did before he came here to
serve in the Congress of the United States, and I thank him for
bringing that very valuable bipartisanship here and
bipartisanship yesterday, Madam Chairwoman, at the White House,
where we brought these issues up.
And I wanted to say that because of Silvestre Reyes'
historical knowledge, Congressman Pastor from Arizona and
Xavier Becerra from California and I said to the President, we
need enforcement, but we don't need roundups of innocent
individuals throughout our community, and we were able to speak
with not only the knowledge of our conviction but with the
historical knowledge that Silvestre Reyes brought us about what
Ronald Reagan was able to do when he approached the issue of
comprehensive immigration reform back in 1986 and halted the
severe worker raids that were hurting people and say we wish to
help and our broken immigration system.
Let me begin by saying that an employment verification
system must be part of a comprehensive immigration reform. We
will be setting ourselves up for continued failure if such a
system is not implemented with strong border security, a new
visa program for future workers and a tough but fair earned
legalization program for the estimated 12 million unauthorized
individuals currently living and working.
With that important point in mind, I would like to focus my
testimony today on the employment verification system in
STRIVE, which would allow the shortfalls of our current system
to be corrected.
The Electronic Employment Verification System in STRIVE
would require the creation of a biometric, machine-readable,
tamper-resistant Social Security card. In addition to this
card, the bill limits the number of other documents an employer
could accept as proof of identity and work eligibility and
require that they be biometric in some instances.
Going back to what Mr. Dreier said about the multiple uses,
we need to limit what an employer can accept. It can't be just
everything. That wouldn't help us.
Limiting the number of documents to those that are secure
and tamperproof would help to eliminate the lucrative market of
false documents, but we need to do more. The STRIVE Act also
requires DHS to set up a system to prevent identity theft and
individuals from misrepresenting themselves. Establishing an
employment verification system that will apply to all workers
in the U.S. is a massive undertaking and must be approached
prudently with a roll out plan that is contingent upon the
Going back to Mr. Calvert, who has a 7-year roll out
period, it is going to take years, Madam Chairwoman. I don't
know how we do it well and be fair to American workers unless
we do it that way.
STRIVE phases in the use of our system, starting with
critical infrastructure employers, followed by large, then
H.R. 1645 also requires the Comptroller General to certify
on an annual basis that the verification system is responding
accurately and effectively to employer queries before it can be
Performance benchmarks are essential to employer confidence
in the system and to prevent U.S. citizens and others who are
work-authorized from being denied eligibility to work.
Individuals will also be allowed to check their own records
for accuracy. In addition, workers can contest inaccurate
determinations of the system; if wrongfully denied work
eligibility they will have the right to administrative review,
lost wages and, if necessary, judicial review.
The mandatory expansion of such a system also raises
legitimate privacy concerns. Technology, such as encryption,
regular testing of the system and implementing regular security
updates, would have to be used. Information to be stored in the
system would also have to be limited and could only be used for
employment verification purposes.
The bill also provides and levies stiff penalties for
unlawful access or modification of employment system
information. In its annual review, the Comptroller General must
also certify that our system is protecting the privacy of
records in the system.
Witnesses before this Subcommittee have testified that
employment discrimination has been an inherent problem under
the current system. The STRIVE Act forbids employers from using
the system to discriminate against job applicants or employees
on the basis of nationality; terminating employment due to an
initial tentative non-confirmation; using the system to screen
potential employees; reverifying outside of the law the
employment status of an individual; or, using the system
Last point: we cannot have a robust employment verification
system without equally robust enforcement. Increased penalties
for individuals who falsely attest to being authorized to work
and employers who do not comply with the new system's
requirements or knowingly hire unauthorized. Our bill also
debars employers from using the system for Government
contracts, grants, and agreements who violate the system.
With regard to enforcement resources, the STRIVE Act
requires Immigration and Customs, ICE, to spend at lease 25
percent of their time.
I would submit the rest of the testimony, but I would like
to say that we must make sure as we roll out the system, Madam
Chair, that there be safe harbors for employers. If an employer
is using our system, our Federal system, and they are doing it
in good faith and they are checking it and they hire those that
are undocumented, we must also provide a safe harbor for them
as we protect employees, we protect employers until we perfect
Thank you so much, Madam Chair.
[The prepared statement of Mr. Gutierrez follows:]
Prepared Statement of the Honorable Luis V. Gutierrez, a Representative
in Congress from the State of Illinois
Chairwoman Lofgren, Ranking Member King and my colleagues on the
Subcommittee, thank you for this opportunity to testify on my and
Congressman Jeff Flake's proposal in the STRIVE Act, H.R. 1645, to
improve the electronic employment verification and worksite enforcement
Like a number of witnesses who have recently come before this
Subcommittee, I want to begin my comments with what I think is the most
essential element in crafting an employment verification system that
works. That is, the system must be part of comprehensive immigration
reform. If such a system is not implemented with strengthened,
coordinated border security, a new visa program that provides the
future workers our economy needs, and a tough, but fair, earned
legalization program for the estimated 12 million unauthorized
individuals currently living and working underground, we will be
setting ourselves up for continued failure on this front.
I would like to focus my testimony today on addressing how the
employment verification system proposed in STRIVE would address or fix
the shortfalls of the current system, as identified by recent
witnesses' testimonies before this Subcommittee.
any employment verification system must prevent document fraud
The Electronic Employment Verification System (EEVS) in the STRIVE
Act, first and foremost, would require the creation of a biometric,
machine readable, tamper-resistant social security card. In addition to
this fraud-proof card, the only other documents an employer could
accept to prove identity and work eligibility under the new system are
a U.S. passport; a state driver's license or identity card that meets
the requirements of PL 109-13 (REAL ID); a permanent residence or green
card; or a tamper-proof employment authorization card issued by the
Department of Homeland Security.
Requiring a limited number of secure documents would be a great
step forward in eliminating the lucrative market of false documents,
but we need to do more. To prevent individuals from using valid
documents that are not, in fact, their own, the STRIVE Act also
requires the Secretary of the Department of Homeland Security to
establish reliable and secure ways under the new verification regime to
determine if the information in the system's databases match the hired
employee whose eligibility is being verified.
eevs must maintain and provide accurate data and otherwise be reliable
enough to instill confidence in the system
Establishing an employment verification system that will apply to
all workers in the U.S. is a massive undertaking and must be approached
prudently, under a realistic timeline and with a roll out plan to the
entire workforce that is contingent upon the system's accuracy. STRIVE
phases in the use of the EEVS, starting with critical infrastructure
employers, followed by large, then small, employers.
H.R. 1645 also requires the Comptroller General to certify on an
annual basis that the verification system is responding accurately and
effectively to employer queries before it can be expanded. It is
essential to build in performance benchmarks so that employers have
confidence in the system, and are not tempted to circumvent it. We also
want to prevent U.S. citizens, legal residents and others work-
authorized from being denied eligibility to work.
Individuals will also be allowed to check their own EEVS record for
If the verification process results in a tentative nonconfirmation
or a final nonconfirmation of a worker who is, in fact, work
authorized, STRIVE ensures recourse for the worker.
In the case of a tentative nonconfirmation, a worker is granted 15
business days to contest it. If a worker is wrongfully denied work
eligibility (``final nonconfirmation'') by EEVS they will have a right
to administrative review, lost wages in the case of an error caused by
the system itself, and, if necessary, judicial review.
eevs and the protection of privacy and security of information
The mandatory expansion of such a system also raises legitimate
privacy concerns. DHS, in consultation with the Social Security
Administration (SSA), would have to design and operate the system so
that privacy is safeguarded by the technology used (use of encryption,
regular testing of the system and implementing regular security
updates). Information to be stored in the databases would also be
limited to the individual's name, date of birth, social security
number, employment authorization status, the employer's name and
address and record of previous inquiries and outcomes.
Such information could be used for employment verification purposes
only, and the bill prohibits and levies stiff penalties for the
unlawful access or modification of EEVS information.
In its annual report reviewing benchmarks for the system's roll
out, the Comptroller General must also certify that the EEVS is
protecting the privacy of records in the system.
protection of individuals from discrimination
Recent witnesses before this Subcommittee have discussed how
employment discrimination has been an inherent problem under the
current employer sanctions regime and the Basic Pilot program. The
STRIVE Act forbids employers from using the new system to discriminate
against job applicants or employees on the basis of nationality;
terminating employment due to a tentative nonconfirmation; using the
system to screen employees prior to offering employment; reverifying
the employment status of an individual in violation of the law; or,
using the system selectively. Civil fines for unfair immigration-
related employment practices are also increased and additional funding
is authorized for the dissemination of information to employers,
employees and the general public about the rights and remedies of these
the need for robust enforcement
Of course, we cannot have a robust employment verification system
without equally robust enforcement. H.R. 1645 creates significant
criminal penalties for individuals who falsely attest to being
authorized to work, civil penalties for employers who do not comply
with the new system's requirements and criminal penalties for knowingly
hiring unauthorized workers. Our bill would also debar employers who
repeatedly violate these provisions from government contracts, grants,
In addition, the bill requires DHS to establish a complaint and
investigation process regarding potential violations related to hiring
or continuing to employ unauthorized workers.
With regard to enforcement resources, the STRIVE Act requires
Immigration and Customs Enforcement (ICE) to spend at lease 25 percent
of their time on worksite enforcement.
In sum, the Employment Eligibility Verification System in the
STRIVE Act would address a number of the shortfalls of the current
system as created by the immigration laws passed in 1986 and 1996. As
we all know, the current system does not work, and perhaps most
troubling, it does nothing to prevent illegal immigration or the
employment or exploitation of unauthorized workers. As part of a
comprehensive solution to our broken immigration system, I believe that
the EEVS in STRIVE will provide us with a system that is tough, fair
and works to bring both employers and workers under the rule of law.
Thank you, Madam Chairwoman.
Ms. Lofgren. Thank you.
And we finally have Congressman Flake.
TESTIMONY OF THE HONORABLE JEFF FLAKE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Flake. Thank you, Chairwoman Lofgren and Ranking
Minority Member King and Chairman Conyers. It is great to be
back in the Judiciary Committee for the first time since my
involuntary leave. I appreciate being invited, and I appreciate
the way that you are conducting these hearings and the
seriousness with which you are addressing this issue. This is
important today, to talk about the importance of comprehensive
reform, in particular employment verification.
I am glad to be here with this panel, with Mr. Calvert, the
father of Basic Pilot, basically, who has done so much good
work there, and David Dreier, with the secure Social Security
card, which we incorporated into our legislation. And I think
that we have got a good package here.
Since Luis did such a good job explaining what our
legislation does in this regard, let me just kind of talk a
little bit about the need for it and why this is so important.
We need to always remember that of the illegal population that
is here, it is estimated between 12 million and 20 million,
there are really no good estimates, but the best ones seem to
be about 7.2 million in the workforce. The bulk of those have
managed to deceive their employer somehow with unsecure
documentation, documentation that is fraudulent. So we have to
have a way to combat that.
There are some tools out there right now. Basic Pilot is
out there. But we need to go further than that. I should note
that Swift, the meatpacking plant, Swift, I believe, had been
using Basic Pilot since 1997. Basic Pilot does a great job of
telling you whether or not a Social Security number is valid.
But there are limitations on whether it can tell you whether
that same Social Security number is being used 500 times.
And so we have got to attack the identity theft and fraud
issue, and that is why it is so important to use the Dreier
language and go further. And Luis is exactly right in talking
about the need to do it thoughtfully and to roll it out well
and to make sure that employers have those tools and have the
confidence to use them as we go forward.
As we have mentioned before, there are four real main
elements to comprehensive reform. Obviously, we need more
border security. We need a mechanism to deal with those who are
here illegally now. We need a guest worker plan moving forward
so we won't find ourselves in the same pickle we are in today,
not having a legal framework to bring people in that our
economy so desperately needs.
But most important here, the lynchpin to everything, is to
make sure that employment can be verified. Forty percent of
those who are here illegally didn't sneak across the border.
They came legally and overstayed. And they simply have found
their way into the workforce. So we can do all we want to at
the border, but we haven't solved the problem unless we have
employer verification, and that is what this is all about.
I am glad to be here with this distinguished panel.
[The prepared statement of Mr. Flake follows:]
Prepared Statement of the Honorable Jeff Flake, a Representative in
Congress from the State of Arizona
Thank you, Madam Chairwoman, for holding this important series of
hearings on various aspects of immigration policy, and for inviting me
to testify. The ability of employers to quickly and accurately verify
the authorization of their employees to work in the United States will
be a crucial component of getting a handle on our broken immigration
employment verification is crucial to comprehensive reform
We have heard various estimates--and, of course, no one can know
the true number for sure--of how many people are illegally present in
the United States. The number most consistently used is 12 million. Of
those 12 million, the Congressional Research Service estimates that 7.2
million people are unauthorized workers in the civilian labor force.
That figure represents five percent of the U.S. labor force. These
workers have either fooled their employers with false documents and
identity fraud, or are working for an employer aware of their status. I
believe that most workers fall into the former category, rather than
Simply put: many of those that are here in our country illegally
are here for employment. However, they did not all risk an illicit
border crossing to get here. According to a Pew Hispanic Center survey
published last year, nearly half of those who are here illegally didn't
sneak across the border. Rather, they entered the country legally
through a port of entry like an airport or a border crossing checkpoint
and overstayed their visas. Over the past 15 years, we have tripled the
size of the Border Patrol and increased its budget tenfold. Congress
has gone so far as to mandate the construction of a wall on our
southern border. And still they come.
Border enforcement alone won't solve our illegal immigration
problem. Border enforcement is a crucial component of a comprehensive
solution to solving the problem of illegal immigration, along with
resolving the status of the millions of undocumented aliens, fixing
backlogs in legal immigration, and ensuring interior enforcement of our
immigration laws. A guest worker program that provides employers with
the legal workforce of essential workers they so desperately need is
essential to ensuring that our immigration laws are enforced. Clearly,
as is the focus of this hearing, fixing our broken immigration program
will also require a workable and fraud-proof employment verification
As I am sure many of you are aware, measures to ensure that those
that are unauthorized to work in the U.S. are prohibited from doing so
are not new to the immigration reform debate.
1986 attempt at employment verification
The Immigration Reform and Control Act of 1986 (IRCA) made it
illegal for employers to knowingly hire, recruit, or refer for a fee,
or continue to employ an alien who is not authorized to be so employed.
IRCA's employer sanctions also included penalties, both civil and
criminal, for those violating the prohibition on unauthorized
employment. However, under the 1986 law, employers were deemed to have
met their obligation if the document presented to verify work
authorization ``reasonably appeared on its face to be genuine.'' This
approach was almost universally derided as fruitless, due to the
prevalence of fraudulent documents and the ease with which undocumented
workers could obtain them. Unauthorized workers could easily find
employment, either by presenting counterfeit documents or stealing
1996 attempt at employment verification
A decade later, Congress again sought to solve the problem of
unauthorized employment when it included the Basic Pilot program in the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. As
many of you are aware, Basic Pilot is a voluntary, online verification
system that allows employers to confirm the eligibility of new hires by
checking the personal information they provide against federal
databases. Originally started in 1997 with limited geographic
availability, the system is currently available nationwide, but suffers
from severe limitations including the fact that it is still voluntary
and prone to fraud.
The raids of the Swift meat packing plants in December illustrated
more clearly than anything else the limitation of the Basic Pilot
program. The company had been trying for years to comply with our inept
and broken immigration system. They were actually sued for
overzealously inquiring into the backgrounds of job applicants
suspected of presenting fraudulent documents--this became the basis for
a discrimination lawsuit by the Department of Justice. Swift has
participated in the Basic Pilot Program since its inception in 1997,
but was well aware of its shortcomings--namely, the program does not
catch identity theft by workers. Employers can check whether an
applicant has presented a valid Social Security number, but Basic Pilot
will not note the fact if the number has been used 500 times in the
past year. In the end, it was this shortcoming of Basic Pilot that
permitted the company to utilize the system and still hire hundreds of
illegal workers. This is the kind of charade that, unfortunately,
characterizes much of our current immigration policy.
the strive act of 2007 employment verification approach
More than two decades since IRCA, the song remains the same: the
true key to enforcing our immigration laws will involve worksite
enforcement. As trite as it sounds, those who forget the past are
doomed to repeat it. As part of a comprehensive approach to immigration
reform, the STRIVE Act of 2007 takes note of the lessons learned
through past attempts and would provide the crucial employment
verification system that is enforceable and prevents against ID fraud.
The legislation introduced by Congressman Gutierrez and I would
create a mandatory system for employers to electronically verify
workers' employment authorization. It also establishes criminal
penalties for employers and workers who operate outside the system and
implements strong enforcement mechanisms.
The Employment Eligibility Verification System, or EEVS, mandates
the Homeland Security Department and Social Security Administration to
develop a mandatory system for employers to verify the employment
authorization of all new workers electronically or telephonically and
establishes an interim verification regime for employers to use while
the system is under development. The system would be gradually phased
in over time, starting with critical infrastructure employers, followed
by other employers based on size: largest employers would be required
to use the system first, with smaller employers following in successive
Importantly, the legislation limits the number of documents that an
employer can accept in order to verify a worker's eligibility to work.
It follows the lead of legislation introduced by Congressman Dreier, in
mandating an improved, biometric, tamper-resistant and machine-readable
Social Security card. It is important to note that these provisions
will not create a new secure National ID, but rather will prevent
identify fraud exclusively in an employment verification setting.
In addition to the secure Social Security card, other documents
that could be presented to prove work authorization include a United
States passport, a REAL ID-compliant driver's license, a permanent
resident card, and a secure card that the Secretary of Homeland
Security could create to indicate work authorization. This is a vast
improvement over the vast alphabet soup of documents that employers
must currently accept from workers and try to verify as authentic.
The mandatory EEVS system would establish a secure and responsive
system that would provide a safe harbor for employers to ensure that
the workers they are hiring are legally present in the U.S. The new
System will use a cross-agency, cross-platform system to share
immigration and Social Security information necessary to verify an
individual's work authorization. The System will not only determine if
an individual's name matches a Social Security number on file, but also
whether the person standing before the employer does, in fact, bear the
name and number that they've presented to the employer.
A key component of the EEVS system is the creation of new and
significant penalties for those workers and employers operating outside
of the system. Scofflaw employers would be fined on a sliding scale for
hiring unauthorized workers. This would entail fines of between $500
and $4,000 for each unauthorized worker for first-time wrongdoers, but
quickly escalate to $20,000 for each unauthorized worker for repeat
offenders. Concurrently, employers who do not follow the rules for
record-keeping or verification practices would face fines of up to
$6,000 for repeat offenders. These employers could also face prison
sentences of up to three years. Repeat violators would also be barred
from federal contracts for five years.
Madam Chairwoman, in conclusion, I would like to emphasize how
crucial I believe the issue of employment eligibility verification is
to the success of the broader comprehensive immigration reform. Giving
employers the tools they need to determine if their workforce is legal
will eliminate any excuse they currently have to fall foul of the law.
Ensuring that those employers who choose to disobey the law will be
held accountable will give the American people confidence that the days
of lax enforcement are over and a new temporary worker program can be
competently implemented and enforced.
Ms. Lofgren. Well, thank you very much.
What a distinguished panel this is, and we are so grateful
that you took the time to be with us.
We have questions, but we, as much as anyone, understand
your schedule. I mean, we have the Chairman of the Intelligence
Committee, the Ranking Member of the Rules Committee, just as
examples. So if any of you need to leave before we ask
questions, we will respect that and understand it. Those of you
who can stay, we also very much appreciate that.
So if you need to leave, you may.
Mr. Dreier. We are here for the long haul.
Ms. Lofgren. On for the long haul. Then we will go to
questions, and I am going to begin.
My question reflects the testimony we will receive from the
Cato Institute later this morning. I think all of us, and I
include myself, have talked about the need for an employment
verification system. We feel that we have Basic Pilot, we are
looking at ways to improve it, whether we rename it or
whatever. And your testimony has been very helpful and very on
But when you are in a mode like that, I always think it is
important to listen to the voices that are saying, ``Wait a
minute,'' and address those issues. And one of the things that
our Cato witness has pointed out is that when you have
information sent to Social Security and the Department of
Homeland Security, that information becomes, I am quoting from
his testimony, ``Very easy for those entities to access, copy,
or use. It is likely combined with metadata information about
what information was collected from whom and so on. And can
then be correlated with information at the IRS or educational
loan department, health records,'' and on and on.
And the witness goes on to say, ``Unless there is a clear,
strong, verifiable data destruction policy in place, any
electronic employment verification system will be a
surveillance system, however benign in its inception, that
observes all American workers.''
And I think as the testimony concludes, the old saw is
true, again, this is a quote from the testimony: ``Information
is power. Uniform government ID systems have important
consequences in terms of the individual's relationship to
government. A major concern with national IDs is the power that
the identification gives to government,'' and that the lesson
that the witness hopes we will take is to ``design a system
that uses one key to control access to our intangible lives,
our finances, communications, health care and so on, is a risk
to our freedom and privacy,'' to summarize.
These are issues that all of us care about. That is not
Any comments on these concerns? And if they are real
concerns and we still do have a need to verify, what do we do
about that concern? What protections do we build in or should
we worry about it? Anyone who wants to answer?
Mr. Calvert. I think we all agree that a verification
system is needed in the United States and any verification
system, obviously, by its own definition, imposes some problems
However, that is a reasonable tradeoff in order to make
sure that people that come into this country are coming here
legally and working legally.
A system similar to the Basic Pilot program, whether or not
we come up with a way to make it counterfeit proof, is, I
think, the best program, the most nondiscriminatory program,
because it checks the document itself, to ensure that the
people who come here have a legitimacy to come into the work
I was in the restaurant business also. I had a number of
restaurants. And it was--when I was an employer, it was
impossible when we filed the I-9 form to check to see whether
people were here legally or not. I went through the system,
filed the I-9 form, put the several identifications on the back
of the form and complied with the law.
However, I knew because I could not ask nor could I look
into the background of individuals that I hired, that some
probably were here illegally.
So a system such as this is necessary and I think that we
are all on the same path, and I think it is necessary to impose
this system and allow employers to check the veracity of the
documents and the people they employ.
Ms. Lofgren. Anyone else?
Mr. Dreier. Yes, Madam Chair.
First of all, let me just say that I think Ken Calvert
brings tremendous perspective from his experience as a
restauranteur, and I am strongly supportive obviously of his
Pilot program. And I appreciate the fact that my friends Luis
Gutierrez and Jeff Flake have included H.R. 98 as part of
James Madison, in ``Federalist 51,'' talked about the need
for us to make sure that Government gets control of itself. And
the fact of the matter is that I describe myself as a small
``L'' libertarian Republican. I echo and regularly talk about
every one of those concerns that the Cato witness has brought
forward because I believe that the notion of having the
Government get too much information is something that I find
We obviously have had some sacrifices that have had to be
made. We all have recognized that since September 11 of 2001.
That is one of the reasons I have been very particular and
careful in crafting this legislation to ensure that the
Government doesn't get any new information that it doesn't
Now, the Cato witness has talked about the potential for
the sharing of information and the leaking of that information,
which I think is a very, very valid concern. That is why in
H.R. 98 I have included very, very harsh penalties for any of
the activity that has been described there, and I too am
concerned, as I said in my opening remarks, about the prospect
of some kind of national ID card. I know there are some people
who have opposed it in the past but are now supportive of that
But it is absolutely right and the Cato witness is
absolutely right in talking about the need to ensure that we
don't have a national ID card, number one, and, number two,
that we don't see the Internal Revenue Service gaining access
to information that they should not have access to.
Ms. Lofgren. Thank you very much.
I am almost up, but I don't want to cut you off, Mr. Flake.
Mr. Flake. Let me just briefly say, in our legislation we
are cognizant of that risk, so we actually have four different,
maybe five different pieces that can be used as secure
documentation. They just all have to be machine readable,
tamperproof, and so you won't have one national ID out there.
It can be the secure ID, passport, an identification card that
DHS wants to come up with, but there won't be just one piece.
So that is a valid concern.
Mr. Gutierrez. I am going to punt this right back.
Madam Chairwoman, with you and Mr. Conyers, I can just--
Berman, Jackson Lee, Waters, Meehan, Delahunt. I am confident
that if the Committee does its work, we are going to put those
protections in there.
Ms. Lofgren. Thank you very much.
And thank you, Mr. Ranking Member, for your indulgence in
my going over.
Mr. Dreier. Could I just say one quick thing, if I could,
Ms. Lofgren. Certainly.
Mr. Dreier. And that is, to Jeff's point, I think it is
important for us to know, one of the concerns that I have had
about other documents is that they create the potential for
discrimination, and that is why the utilization of the Social
Security card really eliminates that. And the reason I say that
is, you hear, well, you know, we will have a card for the guest
workers who are here, a special card for the guest workers.
Well, how do you ask? You look at someone and you say,
well, is this a guest worker or is this an American citizen? I
find that appalling, and that is why I think the Social
Security card, which would mean that anyone in the labor force
looking for a new job would be required to have that one
document, and that is why I think that that is the way for us
Thank you very much.
Ms. Lofgren. Thank you.
Mr. King. Thank you, Madam Chair.
At first, I would note that Mr. Dreier quoted from
``Federalist 51'' and then he said, ``Too much information is
something that I find absolutely abhorrent.''
I find your brain is full of all kinds of information, Mr.
Dreier, none of which is abhorrent to me. I wanted to make that
Mr. Dreier. I have some, I bet, that you would.
Mr. King. I would like to first turn to Mr. Calvert.
Before Basic Pilot was implemented, was there any way that
the employer could verify that the name on the I-9 form
actually matched the name that matched the Social Security
number that was presented?
Mr. Calvert. No. There was no system available to an
employer to check the veracity of the documents that were being
Mr. King. And now can--does an employer know if they run
the Basic Pilot that that name matches the Social Security
number and the identity to that number?
Mr. Calvert. Yes. The system works not perfectly but pretty
well. And the statistics that you used earlier, way over 90
percent of the time you can check the veracity and effect of
the document that is being used or the person that is applying
Mr. King. But if it is a ``no match,'' on those names, if
they give you the wrong name but a good Social Security number,
you get a non-confirmation?
Mr. Calvert. That is correct.
Mr. King. And then the applicant gets time to cleanup their
Mr. Calvert. To cleanup their records, to check to find out
if there is a problem within the Social Security
Mr. King. And we are always going to have problems when we
go into a huge database, 300 million people in this country.
And I want to submit this proposal or just a philosophy and ask
you to respond to it, and that is, if we had a database that
wasn't 100 percent clean, which obviously every database has
some problems in it, I am looking at it from the standpoint of
using it cleans up those records, because that is the only way
you can really get it cleaned up, is to use it.
Mr. Calvert. Well, I would point out, when we started down
this path back in 1997, we had tremendous amount of problems
getting this thing rolling. I started out with a number of
States. It started out, if you will remember, the folks that
were involved in this, seven States, and then we rolled it all
50 States. And we had problems all the way along the way.
So the Social Security Administration, Homeland Security,
others, have now involved themselves in this, and have worked
their way through a lot of these problems. Certainly, what
happened with Swift is unfortunate, but I would like to point
out that 50 employers a day sign MOUs to get onto the Basic
Pilot program. This program will double in the next year. We
have several large employers, I mean by large mega-employers
that are looking on putting this program on voluntarily.
So it is a system that works and it is a system that
employers want to use.
Mr. King. This Basic Pilot goes out to a pair of databases,
Social Security Administration, DHS. And in DHS it has the FBI
database, NCIC, National Crime Information Center database. Do
you know of any instances where that information went to an
NCIC database and there were wants and warrants out there on an
individual that was perhaps sitting in the HR office of a
prospective employer? Has that done anything to pick up any of
the people on the streets, even on the Top 10 Wanted List?
Mr. Calvert. I don't know of that being used in the system.
I have primarily been focused on employment verification.
Mr. King. Would you be for or against utilization of that
to help make our system cleaner?
Mr. Calvert. Well, certainly, looking at it, the problem is
that anytime you start expanding the basic system, which what
we are trying to accomplish here is whether or not people are
eligible for employment, it becomes in fact more complicated,
more difficult. But it is, you know, I guess we could take a
look at that, but that is what would occur.
Mr. King. Thank you, Mr. Calvert.
Mr. Dreier, when one presents the magnetic stripe on the
Social Security card that you have presented here today, how
does an employer verify that that actually matches the biology
of the person whom it was submitted to?
Mr. Dreier. Because the way this works is that there is a
photo imbedded on the card, and the card that is provided has
the number. They swipe that card and it goes into the databank,
the DHS databank, which would simply give a yes or no as to
whether or not this is in fact a qualified worker.
So there is a photo embedded on that card. And that is the
end. The natural question is, well, we are all issued these
cards when we are kids. The photograph is taken once one enters
the labor force, the workforce, so that you don't have a baby
picture on there.
Mr. King. I have seen some of these congressional pictures,
though, and I can't recognize the people on the card.
Mr. Dreier. Yes. That looks like my staff member has got
his baby picture on there, and it was taken last week, so----
Mr. King. Would there be a requirement to update that
Mr. Dreier. That would obviously be something that would
have to be addressed, because as you said, a lot of people have
pictures in which they look a lot younger than they are.
And the whole process would be phased in. Again, this is
one of the arguments that has been given against this, talking
about the fact that there may be 40 million of these needed
because there are 40 million people who are changing jobs on an
annual basis, and that is one of the things that has led a
number of people to oppose this.
But, you know, obviously there is going to be a cost to
anything that we are going to do, and I think that if you look
again at these multifarious documents that are provided, to get
down to one, because there has been no attempt whatsoever to
update since 1935 this card. I think that this is really the
single best route for us to take on this.
Mr. King. Thank you, Mr. Dreier.
If I could, just a quick question of Mr. Flake.
The issue that I raised with regard to using the Basic
Pilot program and when that search goes through the database of
DHS, FBI, NCIC, down through there, would you be supportive of
using that for law enforcement so that if we are going to run
all these databases, we can pick some of these people up off
And then in conjunction with that question, we have
employers that are deducting billions of dollars in expenses
that are being paid to illegal employees, illegal wages. Would
you support using that also to ask the IRS to deny the
deductibility of wages and benefits paid to illegals?
Mr. Flake. I want to be sensitive to any unfunded mandates
that we are passing on to people at the local level or
businesses that may not have the tools to do it. But to the
extent--I mean, our legislation, what we are trying to do in
this is to make sure that we have interagency cooperation, that
we can--obviously, these databases that we are going to be
using, when you have a biometric, can be used by law
enforcement agencies and everything else. So that is really the
ultimate goal of where we are going.
At the present time, I just don't know what kind of
mandates or costs would be borne by the local entities, so I am
Mr. King. Thank you, Mr. Flake.
Ma'am, I yield back.
Ms. Lofgren. Thank you, Mr. King.
I would now recognize our Chairman, Mr. Conyers for his 5
minutes of questions.
Mr. Conyers. Jeff Flake, I commend you and Luis for the
antidiscrimination provision that is in your electronic
employer verification system. I think it is very important.
But why was Javier Rodriguez, on Amy Goodman's program, so
critical of this bill that you two are proposing when--and he
suggested it is corporate sponsored or corporate favored. Is
President Bush with us? Or to what extent--I know we talked
about him being there, but I need to know what that really
And my dear former Chairman, you know, calling a national
ID--it is not a national ID card. It is not a national ID card.
But you know the problem you are going to have, they are going
to say it is an ID card.
Mr. Dreier. No. They have been.
Mr. Conyers. They may have already started. I really don't
And, finally, back to Jeff Flake, how do we get to balanced
enforcement for treatment of employer? Safe harbor may be a
nice way, a cozy way, of helping them out, but then we don't
want to hang them out like Swift was hung out to dry for
So I leave this for all of you to help me unravel. And I
know we are going to be seeing each other, so the world doesn't
end when my 5 minutes ends. We are going to be talking a lot
Mr. Flake. Let me just say, to answer the first, I can't
speak for the President on this. I know the President has been
supportive consistently of comprehensive reform. As far as the
details of our legislation, our legislation as a whole, he has
not come out and taken a position on it. But I know and
appreciate that he has been consistently in favor of
comprehensive reform, including employer verification.
With regard to the second point, as far as equal
enforcement, I have always felt that we need better
enforcement, more severe enforcement, and that is why our
legislation increases the penalties on employers if they
knowingly violate immigration law. But they have got to have
the tools. And that is the balance that I think that you are
Heretofore, employers haven't had all the tools even though
there have been some tools out there. They still--they are
imperfect or incomplete tools right now.
Mr. Calvert. Mr. Chairman, I might point out, bringing it
to Swift, that was an extremely unfortunately situation. But I
would point out that this program is not perfect, but I would
challenge anyone here to find a Government program that is
perfect. But it is the only system out there today. And for the
whole, the great majority, well over 90 percent, it is working
to verify documents that are used for employment.
As far as the issue of discrimination, this program, the
Basic Pilot program, was never intended to be a prescreening
program to discriminate against potential employees, and the
current program is developing and monitoring a compliance
office to detect and follow-up on these fraudulent and other
misuse of the systems and with instances of employers not
following program procedures.
I want to point out that under the 1986 Simpson-Mazzoli
Bill, there were significant fines in the bill that could be
imposed by the immigration folks if in fact an employer
knowingly hired somebody illegally. However, there was no
system until the Basic Pilot program came on, for the employer
to verify whether or not the documents that were being used
were legitimate. So today it is the only system that is
Mr. Conyers. But what about the small business people in
your Basic Pilot program? There has got to be some financial
incentives. The moms and pops aren't going to be able to afford
Mr. Calvert. Well, I would--I was a small businessman,
relatively a small businessman. And I wanted to do the right
thing. Most small businesspeople I know across America, when I
go back home, are absolutely in favor of the Basic Pilot
program, and it is proven by the fact that the program is
literally doubling every year.
Thousands and thousands of small employers are signing up
to get on the Basic Pilot program. Small restaurateurs, small
drycleaners, businesses all across America.
Mr. Dreier. Let me just say that our 5 minutes has ended,
but I am glad that the Chairman has indicated that life will go
on beyond the 5 minutes, and I will just say very quickly that
I think that on this notion of a national ID card, my idea is
that the Social Security card is thrown into your desk drawer.
You only use it when you are applying for a new job, and that
is the only use that is going to be out there for it.
Mr. Conyers. Thank you, all.
Ms. Lofgren. Thank you.
And as noted, the Chairman of the full Committee has been
very engaged in this process, which is a wonderful phenomena.
Before recognizing the gentlelady Ms. Jackson Lee, I would
like to note that the former Chairman of the Immigration
Subcommittee, former Congressman Bruce Morrison, is here, and
he is associated with the Society for Human Resource
Management, who has a statement that, by unanimous consent,
will be made a part of our record.
I would now recognize the gentlelady from Texas, Ms.
Jackson Lee, for 5 minutes.
Ms. Jackson Lee. Thank you very much.
I do appreciate the series of hearings that we are having
and look forward to being able to discuss a multitude of
legislative initiatives, which could include the Save America
Comprehensive Immigration Reform Bill that I have authored for
a number of years, and I believe that combined with trying to
fix some of the missteps of 1986 and 1996, I think amongst the
witnesses today we have a broad range of options and
opportunities to take this issue very seriously.
Let me just acknowledge that I have young Claudia Ocampo
with me today from Arlington, Texas, and she is with Girls,
Inc. We are very proud of her. And I will just simply say that
she has an immigrant background, but her family are
contributing, and we are excited that she is here with us
I think that is the tone in which I want to utilize my
time; as a backdrop of how we fix the immigration system. I
think we need to start from the premise that we have
individuals who want to contribute to society. We have
individuals who are contributing to society. And we have got to
find a way that balances privacy, due process--those are some
issues that I am very concerned about, the nondiscriminatory
practices against employees and enforcement.
Yesterday, I think, and I don't know, Madam Chairwoman, the
days are running together. I think we were in a hearing either
yesterday or the day before, and I asked the representative
from Swift, ``Did you come to this hearing to complain about
And he was forthright. ``Absolutely not. But can you tell
us what the law is, because we would like to comply with the
My Texas contractors who are looking for roofers and
electricians and, of course, all of us say find Americans, and
that is what I say to them, but they are looking for all of
these skills and they say simply tell us the law.
Mr. Dreier, you are talking about a card which I would just
jump ahead and say, you know, on many occasions on the floor we
have indicated that it is a national ID card. But if we are
going to start afresh, let's try to find out what it is.
And my concerns would be, you can help me understand the
safeguard provisions that would protect the privacy of the
information that would be on the card. I have heard you
previously say put it in the drawer, it is only supposed to be
used for employment purposes. You know about theft. You know
that people keep cards in their wallet more than they probably
And so what would be your take on how we would ensure the
privacy and what non-immigration information do you think would
be recorded on the card?
And before you answer, let me just pose to Mr. Flake so he
can be thinking about it, let's get it right. And, frankly, I
want to make it clear that I am not faulting ICE. They are
doing their job. They need to have rules and regulations. But
the raids that are going on create a massiveness of
intimidation. I don't know if they have been occuring in your
district. You might want to comment on that. But I think I
would like to hear from you as to what a constructive
enforcement system would do to utilize ICE resources where they
should be, where people are flagrantly, outwardly saying, ``I
am not even going to worry about the system.'' You can think
Mr. Dreier. Thank you very much, Ms. Jackson Lee.
Before you came into the room, I actually had an exchange
on this issue with Mr. King and with the distinguished Chair of
the Subcommittee in which we were talking about the fact that
there is understandable concern over the notion of any of this
information being shared. That is one of the reasons that when
the employer gets the information back, they don't get the
exact status of a person, whether or not they are a citizen or
they are here on some kind of visa. They just get yes or no, in
fact is this a qualified worker.
And we do have very harsh penalties that we include in the
legislation for anyone who is utilizing this information
As I said, I would be very troubled at the notion of the
Internal Revenue Service gaining access to this kind of
information that may be coming in. And so that is why we have
been careful to make it clear that the Government is not going
to be able to gain any new information.
Now, I would also argue that if look at the fact that the
flimsy little piece of paper that has been the Social Security
card, Ms. Jackson Lee, since 1935, and no attempt whatsoever to
update that, that having a smart, counterfeit-proof card would
in fact play a role in diminishing the threat for duplication
and fraudulent use of that card. So that is why I believe that
this is indicated.
And, again, to Mr. Conyers' very appropriate point on the
issue of discrimination, this card prevents some other card
being utilized and asking someone whether or not, you know, you
have your guest worker card, and looking at someone and saying,
well, that must be a guest worker. And that is why the Social
Security card is an----
Ms. Jackson Lee. But it wouldn't have any extraneous
information--extra information that would not be necessary.
Mr. Dreier. Absolutely. You are absolutely right.
Madam Chair--thank you, Mr. Dreier.
May I let Mr. Flake answer on getting a system in----
Ms. Lofgren. Certainly.
Ms. Jackson Lee [continuing]. So we can balance this
raiding that is going on.
Mr. Flake. I wish I had a good answer as to how these raids
can be nondiscriminatory and effective and not catching other
people in the net that shouldn't be in the net. ICE struggles
with that. So do local governments.
In my district, the city of Chandler years ago had a type
of roundup where they thought that they could check documents.
In the end, they included in the net a lot of people that
shouldn't have been in the net.
But I can't see how ICE can simply not try to enforce
current law. So we are in a horrible period right now, until we
get the kind of identification that we are talking about. That
is why it is so important that we move through and get
comprehensive reform. It is a very good question.
Ms. Jackson Lee. We need to fix the system.
Mr. Flake. Yes.
Ms. Jackson Lee. Thank you.
Ms. Lofgren. Thank you.
The gentlelady from California, Ms. Sanchez, is recognized
for 5 minutes.
Ms. Sanchez. Thank you, Madam Chair.
I would just like the folks on our first panel to know that
we appreciate the thoughtfulness with which you have tried to
tackle this problem.
Earlier in the week, we had another hearing in this
Subcommittee dealing with the same issue. And Jonathan
Scharfen, the deputy director of USCIS, was here to answer
questions, and I asked him the same question that I am going to
ask all of you, which is: my concern with the Basic Pilot
program and extending this to all employers is what happens
when employers misuse the system? And I am going to give you a
Employers who may not enter somebody into the verification
system until--and still hire them, still hire workers--and then
later enter them into the system when, say, a labor complaint
has been filed against the company. Or unauthorized employees
having access to the employment verification system, not
something that I would want to happen with my information.
So I asked him, what kind of penalties exist for employers
who misuse the system and how often does that happen and there
weren't any clear statistics and they really didn't have an
answer for what are the penalties for an employer who misuses
So I am going to ask each of you, how would you address
that problem, of employers misusing the electronic employment
Mr. Dreier. Let me just say that I am not here, Ms.
Sanchez, as an expert on the employer verification system. I am
here arguing that the answer is for us to have a smart,
counterfeit-proof Social Security card and the employer would
get no information whatsoever other than is this person in fact
a qualified worker. Meaning are they in this country legally.
And that is the only thing that employers would have as
information by utilizing the smart, counterfeit-proof Social
Ms. Sanchez. Mr. Flake, what is your response?
Mr. Flake. That is a very good question and that has been a
concern whenever we are dealing with this, as we talked about
before, identification that people will construe as a national
ID, we want to make sure that it is secure. And so we have
specific mandates in terms of who can utilize that information
within the company and then specific penalties if it is misused
by others. So if you look in our legislation, there are
safeguards there. It is an important point and one that we took
Ms. Sanchez. Okay. Just out of curiosity, what types of
penalties do you envision?
Mr. Flake. In terms of--I think they are roughly equivalent
with the penalties that we have for basically hiring those who
are illegal once you knowingly do it, which I think are $20,000
on the second occurrence, between $4,000 and $10,000 on the
Ms. Sanchez. Okay. I thank you.
Mr. Dreier. Let me just say that on H.R. 98, we have a 400
percent increase in the penalty from $10,000 to $50,000 and a
mandatory 5 years in prison for employers who are out there and
who are knowingly hiring, and that is how we focus on the whole
notion of enforcement so that we don't see businesses out there
Ms. Sanchez. Okay. But we are talking about----
Mr. Dreier [continuing]. Right, I know.
Ms. Sanchez. Because you are talking hiring. I am talking
about misusing of the----
Mr. Dreier. Right. Right. I am talking about the hiring.
Ms. Sanchez. I understand. Thank you very much, Mr. Dreier.
I yield back.
Ms. Lofgren. Well, thank you very much.
And thanks to the Members who have so generously given of
their time. We know how busy you are. And your commitment of
time shows us how committed you are to this issue and we
appreciate it a great deal.
I am going to ask that our second panel of distinguished
witnesses come forward at this time.
First, I am pleased to introduce Randel Johnson, who is
Vice President of the Labor, Immigration and Employee Benefits
at the United States Chamber of Commerce. Prior to joining the
U.S. Chamber, Mr. Johnson worked as the labor counsel and
coordinator for the Republican staff of the House Committee on
Education and the Workforce and spent 6 years as an attorney
with the U.S. Department of Labor. He served as a member of
several commissions concerning immigration, including the
Department of Homeland Security Data Management Improvement
Task Force, the 21st Century Workforce Commission, and the
Carnegie U.S. Mexican Migration Study Group. Mr. Johnson holds
degrees from Dennison University, the University of Maryland
School of Law, and the Georgetown University Law Center.
We are also pleased to have Robert Gibbs with us, a
founding partner with the Seattle law firm of Gibbs Houston
Pauw. Mr. Gibbs has specialized in immigration and employment
law for over 20 years, advising organizations spanning a host
of different industries, from agriculture to construction to
food processing. He addresses us today on behalf of the Service
Employees International Union. Mr. Gibbs holds his law degree
from the University of Washington Law School.
We are also pleased to have Jim Harper with us, the
Director of Information Policy Studies at the Cato Institute
here in Washington. Mr. Harper has written extensively on the
intersections between privacy concerns and modern data
technology systems, and he serves as a member of the Department
of Homeland Security's data privacy and integrity advisory
committee. Mr. Harper holds his JD from Hastings College of
Finally, I would like to welcome Jessica Vaughan, the
senior policy analyst for the Center of Immigration Studies.
Ms. Vaughan has worked for the Center since 1992, having
developed her expertise in the Executive Branch's
implementation of immigration policy. Before joining the
center, Ms. Vaughan worked as a Foreign Service Officer with
the State Department. She earned her bachelor's degree at
Washington College in Maryland and master's degree from
As you have heard, each of your written statements, which I
have read and appreciate a great deal, will be made a part of
the official record. We ask that you summarize your testimony
in 5 minutes. When the yellow light goes on there, that means
you have a minute to go. And when the red light goes on, it
means your time is up and we would ask that you summarize.
So, if we could, we will begin with Mr. Johnson.
TESTIMONY OF RANDEL JOHNSON, VICE PRESIDENT, LABOR, IMMIGRATION
& EMPLOYEE BENEFITS, U.S. CHAMBER OF COMMERCE
Mr. Johnson. Thank you, Chairwoman Lofgren and Ranking
I think it was sort of gratifying to see the apparent
consensus of the last panel in terms of what I think was
comprehensive immigration reform, if I was hearing the Members
correctly, and it certainly marks a change in the debate, I
think, and is a hopeful indication of what we can get done in
the House in the next several months.
I am Randy Johnson, Vice President of Labor, Immigration
and Employee Benefits at the U.S. Chamber. I do want to note
that the Chamber also co-chairs the Essential Worker
Immigration Coalition and separately the Employment Eligibility
Verification Working Group. Both of these groups are very
broadly based across industry sectors. They will be submitting
separate statements, and I think much of what I will say today
will be reflected in their statements, indicating that there is
a general concern in many of the areas I will talk about today
I do confess that when I went down to the Chamber as Vice
President, I didn't think I would be testifying in front of a
panel here in the House in favor of a broad, sweeping mandate
on employers. But here I am, and hopefully I will still have my
job when I get back to the office.
But I think the fact that the Chamber and other business
groups are willing to step into a broadening mandate indicates
how important we think it is to achieve comprehensive
immigration reform. With that being said, while a lot of the
press has been focused on temporary worker programs and the
undocumented, I think there has been a lack of attention to
title 3 and the employer verification system, which is why I
think we so much appreciate the fact the Committee is holding
this hearing today specifically on this issue.
There has been a lot of discussion in prior hearings with
regard to the degree of accuracy of the pilot program. We can
debate that back and forth. I am not sure if it is 20 percent
or 1 percent, frankly, and DHS won't tell us. Hopefully they
will tell us in the future and, more importantly, they will
However, it is important to note that even with a 1 percent
error rate, you are talking about disqualifying perhaps over 1
million Americans from their livelihood. Not a credit card
transaction. We are talking about people losing their jobs,
U.S. citizens and not just immigrants. So the stakes, I think,
could not be higher, not just for the employer community but
also for employees. And certainly none of us want to see a
system rolled out that disqualifies U.S. citizens from jobs
that they are properly authorized to work.
And now, as I said, it is important from a business
community standpoint that any rollout of a system is part of
comprehensive immigration reform, and I know that has been
noted by many others, so I won't belabor it. But it is
important that it is seen as part of a package.
With regard to key elements, phase-ins, if those--and
Congressman Calvert made a compelling case with regard to the
pilot program today, with regard to its accuracy and its
workability, and that is fine and that is great. Even he
proposed a phase-in of 7 years. But if the Department of
Homeland Security and others have such a strong belief that
this will work, surely they will not oppose a benchmark that
tests the accuracy of the system as it rolls out.
The business community has a jaundiced view of the ability
of the Government to roll such a massive program out in the way
it has been promised, but if it can be done, then surely those
proponents won't be afraid of solid benchmarks and so the
program will be tested before it is rolled out to the next
Secondly, we think it should be limited to new hires. We
know that is controversial, but there are 140 million employees
in the workforce today. Think of the burden on employers to
reverify all of those employees. And given that there are 50
million to 60 million new hires every year just in a general
turnover in the workforce, over time people will be reverified
anyway. So we think no reverification of the existing workforce
but certainly, obviously, new hires.
Third, we think that the existing law with regard to the
subcontractor-contractor relationship should be retained. That
is a contractor should not be liable for the violation of a
subcontractor absent, of course, knowing that the subcontractor
is in fact violating the law. That is indefensible and it
should remain so, but imputed knowledge of some sort, we think,
is not a proper level of fault or liability.
Obviously, we think--and this is where there is a contrast
between realtime verification and testing, whether or not what
the Government gives you is true, but employers do need a quick
response and an accurate response when they put an employee's
name in there, and they need a final decision by the Government
fairly quickly with regard to whether or not that person can be
hired. We think 30 days is about right. Others think perhaps a
Lastly, with regard to--two more things. With regard to
fees, not surprisingly we don't think the business community
ought to have to support this system or pay for it. It is of
general importance to this country and we think it should be
funded generally by taxpayers and through the Government,
normal appropriations, and not through fees imposed on the
With regard to enforcement, we don't think the debarment
process has a role here. The debarment process is a separate
issue with regard to enforcement of labor laws. Labor laws and
immigration laws ought to be left to those in law enforcement
and the debarment process should not be part of that.
Preemption, we think we need sound preemption across the
board of State laws in this area. And, lastly, we are concerned
about parts of certain bills we see which appear to be sort of
quiet ways to expand labor laws and push a labor agenda beyond
immigration and for separate reasons we would oppose that, and
we would hope this issue is limited to immigration issues and
not a quiet way of pushing a labor agenda that has nothing to
do with immigration.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of Randel K. Johnson
Ms. Lofgren. Thank you, Mr. Johnson.
TESTIMONY OF ROBERT GIBBS, PARTNER, GIBBS HOUSTON PAUW, ON
BEHALF OF THE SERVICE EMPLOYEES INTERNATIONAL UNION
Mr. Gibbs. Thank you, Madam Chairwoman and Ranking Member
King and other Members of the Committee.
I am most pleased to be here and hear this discussion this
morning, particularly, as Mr. Johnson mentioned, the emphasis
on comprehensive reform, which is of strong interest to the
Service Employees International Union.
The Service Employees Union has extensive experience
assisting its members in dealing with the kinds of problems
that employers face in verifying the authorization of employees
for work. Because of that and because of the problems that we
see with discrimination in existing systems and with
inaccuracies in Social Security and Immigration Service
records, we are particularly concerned that this Committee
makes sure that anything that is done in this regards gives a
system that is right, particularly as we talk about expanding
the program from a system that only involves less than 1
percent of the employers in this country to one that would
involve 8 million employers and 160 million workers. You are
talking about a massive problem if we make even small errors
and small missteps in the process of construction an electronic
For a verification system to work, it must accurately
identify those who are qualified for employment while providing
a workable means for needed workers to timely obtain
documentation of their authorization to work.
For the first tie, this kind of program would provide to
the Government the power to order employers to terminate
workers. And if we are expanding that to every employer/every
employee, it is a massive expansion of a Government program.
What does this mean to each of us, to the Members of the
Committee? The testimony here this week from Citizenship and
Immigration Services was that under the Basic Pilot program, 8
percent are erroneously non-confirmed, at least at a
preliminary basis, of all workers. Not just immigrant workers
but citizen workers, everybody who is verified, it is an 8
percent error rate.
One may think 8 percent, that is not too bad. Eight percent
of the workers in your district is 24,000 workers; 24,000
workers coming into your district offices, asking your staff
for help is a lot of work and a lot of problem for your staff
to deal with. That is why it is so critical that we get this
right. Unless these errors are cured, there are going to be
major problems in your offices and for the families in our
districts who are losing their jobs and trying to figure out
how to support their families.
Proposals to require employers to electronically utilize a
Government verification program will only succeed if it is part
of a program of comprehensive reform. Why is that the case? It
is not just because we want comprehensive reform. But unless
you shrink the size of the problem down to something that is
manageable, this program will collapse of its own weight.
There has to be both a program to remedy the 7 million to
12 million unauthorized worker situations here in a broad way
and not a narrow program that only fixes half of those people,
plus a program for future immigration worker flows so that we
are not back here 10 years from now dealing with a problem that
we haven't cured in 2007.
It is only if those workers--only if there is not both the
supply of undocumented workers there who are attractive to
employers who would like to use their work without having to
pay competitive wages and decent working conditions, does an
electronic verification system have a chance to work. If there
is a major supply of workers and a labor market that demands
the use of those workers, some employers will find ways to get
around whatever system this Committee devises.
What we saw with the creation of the Immigration Reform and
Control Act's employer sanctions in 1986, which created the I-9
form and required employers to verify every employee by the
employee's presenting documents was that the employer filled
out the I-9 form and the employee presented the document.
Unfortunately, some number of those employees presented made up
documents. They made up a name, they made up a Social Security
number and they presented it.
Now what we are getting, as we try to tighten the system,
is that we get rather than completely made up documents which
don't injure some real person, we are starting to see the kind
of situation that happened at Swift, where employees then have
to find a legitimate name and a legitimate Social Security
number and birth date to use to generate documents which will
clear the Basic Pilot program.
So as we tighten the system you get a response, and the
response is identity fraud problems. If we want to roll that
out on a national basis, we would better figure out how we are
going to keep that from happening at the same time, but there
are other consequences, then, that flow from trying to tighten
up the identity fraud problem.
There are several things that we think need some fixing in
the various bills for employment verification. We think that
the efforts to limit the number of documents have gone too far.
There are too few documents in the most recent proposal. In
other words, the pendulum has swung way too far the other
Why is this a problem? Well, there are several reasons. One
is, the passport, which only 25 percent of U.S. workers have,
is a very expensive and increasingly time-consuming process to
get. The Real ID, five States have bowed out of that. Homeland
Security only accepts a very few number of documents, charges a
lot of money and takes a lot of time to generate them.
Ms. Lofgren. Mr. Gibbs, your time is----
Mr. Gibbs. I will wind up and respond to questions.
[The prepared statement of Mr. Gibbs follows:]
Prepared Statement of Robert H. Gibbs
Ms. Lofgren. Thank you very much.
TESTIMONY OF JIM HARPER, DIRECTOR OF INFORMATION POLICY
STUDIES, THE CATO INSTITUTE
Mr. Harper. Thank you very much, Madam Chair.
I feel like I have to confess, I should maybe be docked a
couple of minutes because your question came out of my
testimony. I won't volunteer to be docked those minutes, but
thank you for asking that question. I appreciate you focusing
on those issues because I do think they are very important.
Congratulations and thank you very much for conducting
extensive hearings on the immigration reform issue, and
particularly this issue. It is a pleasure to me to see broad
agreement on comprehensive immigration reform, and I want to
make a blanket statement that if I don't repeat enough may
hold: that I understand and accept entirely the good faith, the
good intentions, and sincerity of everybody who testified
before you on this panel and everybody on this Committee to try
to solve difficult problems and come up with some solutions.
I sometimes relish being the skunk at the garden party. I
don't in this case. But I do want to highlight some very
serious concerns about the expansion of Basic Pilot and
electronic employment verification generally.
There really are formidable problems with creating a
workable and acceptable employment verification system for
Federal immigration law enforcement. A nationwide system for
checking identity and eligibility is much more easily said than
It is not surprising, of course, that there is a push to
improve the current system. There are a lot of problems with
it. I think we should have a marker that it is more important
that American citizens and eligible people should be able to
work than it is to exclude illegal aliens from working, the
discrimination issue we have heard about so much already.
The theory of using employment eligibility to reduce the
power of the U.S. economic magnet makes logical sense. But it
is very difficult to prove work eligibility under IRCA on a
mass scale. The credential that we are talking about,
eligibility, is a personal one; that is, it attaches to an
individual and is nontransferable.
So the process requires two steps: identification and
determination of that eligibility. Frankly, I don't know how
you get away from identification, a mass identification system,
which could probably be characterized accurately as a national
As to ID, as to the system now, we use identification in
our personal transactions all the time. We are built to do that
with our eyes and ears to recognize other people. And so we
very often rely on identification as a bulletproof way of
getting things done.
But remote identification, identification of strangers,
identification using cards, is a different process. It is a
process that is much more open to fraud in various dimensions
of it, and that is why the current I-9 system doesn't work very
At the outset of an employment relationship, particularly
in the low-skill areas, employers really don't know their
employees from Adam, so they have to accept documents that are
often fraudulent. They are not in a good position to verify the
accuracy or the tamper-resistance of the documents they are
I think that moving to an electronic verification system
would reduce illegal working somewhat by creating a simple sort
of background check, checking to see if this name and Social
Security pair exists, is paired also in the Social Security
system databases. You could do rough logic checks, as was
discussed. See if a Social Security name pair had been used
before several times in succession. That would give you some
suggestion that fraudulent documents were being used.
But what exactly you do with that information is very
difficult, because you would be just as likely to take the
honest, law-abiding worker and make them a tentative non-
confirmation as you would the fraudulent worker.
The system would create a great demand, because of its
toughness, would create a great demand for additional identity
fraud, that is to get new, unused name and Social Security
pairs. So there would be a lot more demand for that
information. It would come from the law-abiding citizens and
the data would be stolen lots of different places. We know
about the data breaches that have happened in the public and
The response is a secure card. I don't know how you do it
without making it a biometric card, and I do think that in
fairness it would have to be some kind of national ID system.
There are very, very advanced technical ways that you could
create a biometric credential that doesn't share any other
information, but that is a couple generations down the road. It
is possible, but I don't see it happening in the very near
You brought up some of the privacy concerns, and I very
much appreciate that. An electronic system is different in
kind, not degree, from a paper-based system. When an employer
puts an I-9 form in a file, that is one thing. When the
information is submitted to the Government electronically, that
is a very, very different thing. And the information can be
collected, stored, and used. I appreciate the good faith of law
writers saying we do not want it used, we do not want it
converted to other uses. But you know the Social Security
number was supposed to be for operating the Social Security
system, and we know well that we are well beyond that date.
Ms. Lofgren. Mr. Harper, I am not docking you your time,
but I am going to keep you to 5 minutes----
Mr. Harper. Very well.
Ms. Lofgren [continuing]. As we have a vote coming up on
the floor soon.
Mr. Harper. I do appreciate the consensus on broad reform.
And thank you for hearing me.
[The prepared statement of Mr. Harper follows:]
Prepared Statement of Jim Harper
Ms. Lofgren. Thank you.
Ms. Vaughan, your 5 minutes.
TESTIMONY OF JESSICA VAUGHAN, SENIOR POLICY ANALYST, CENTER FOR
Ms. Vaughan. Thank you, Ms. Lofgren and Mr. King, for the
opportunity to testify this morning.
My view is that the electronic employment verification
system works very well and we are accomplishing the two goals
of helping employers avoid hiring illegal workers and making it
harder for illegal workers to deceive their employers.
Congress does not need to make changes to the way the
system operates or how it processes queries as has been
proposed in the STRIVE Act. After 10 years of tests,
evaluations and improvements, we know that it works. It is an
efficient system. It has safeguards to prevent wrongful
termination and discrimination and employers report that it is
easier to use than the existing I-9 paperwork system and brings
no disruption to the company or to legal workers.
The system is working well, but it is not perfect. The
biggest problem with EEV is that it is still voluntary. Those
employers who wish to excuse themselves from the law can choose
not to participate. Not only is this unfair, it means the
program is not nearly as effective as it could be in preventing
Companies who must compete with scofflaws are at a
disadvantage. Congress has a responsibility to ensure that
conscientious employers who perform their due diligence in
hiring are not put at a disadvantage for doing so. The most
obvious way to do this is to phase in mandatory participation
in EEV, ideally starting with industries that have historically
attracted large numbers of illegal workers.
If the program were to be made mandatory tomorrow, most
businesses would be able to comply. Even most small businesses
already use the Internet and can access the system. Companies
who don't want to do it themselves can pay their own
accountants or lawyers or hire one of the more than 300 private
sector designated agents to verify workers for them.
If the EEV program is made mandatory, it is important that
certain processes that have been honed over the 10-year pilot
phase be preserved. For example, the current practice is to do
the manual confirmations that are more costly and time
consuming only when an employee contests a tentative non-
Those who do not contest are assumed to be ineligible and
the agencies don't have to spend anymore time on them. This
self-weeding feature will be even more important as the volume
of queries increases.
The STRIVE Act, on the other hand, requires that manual
verification be done even before determining if an employee is
going to contest a tentative non-confirmation. That is going to
be wasteful. And the verification office would quickly be
bogged down trying to verify however many thousands of
unverifiable cases are turned up.
The other major issue that has to be addressed, of course,
to improve the system is identity fraud. While this is a
vulnerability, it is not a fatal flaw, and a number of options
exist to overcome the system's limitation.
First, Congress should support the USCIS plan to develop a
monitoring and compliance unit in the verification office by
providing resources for staff and technology. And in addition
to electronic monitoring, the unit should institute a through
on-site audit process to check both paperwork and employees. It
should be done on both a random basis and also to follow-up on
leads generated by monitoring the queries that go through. And
the Social Security Administration should be directed to
routinely share information with DHS on possible immigration
There are other ways for companies to pick up on this kind
of fraud on their own. For almost 2 years, the Social Security
Administration has offered an electronic verification service
called SSNVS. So employers can monitor their payrolls, and we
are talking about current employees, not just new hires, and
they can detect discrepancies between the company records and
the Social Security record.
Nearly 20,000 employers used it last year to verify more
than 25 million employees, making this program even bigger than
Basic Pilot. Arizona has been doing SSNVS audits for more than
a year and the State of North Carolina considers it a best
practice and insists that their State employers do it on a
quarterly basis. If Swift & Company had made use of this tool,
it might have been spared the big disruption that was caused
when ICE raided its worksites at the end of last year.
Congress should consider requiring all employers of a
certain size to perform regular SSNVS audits as an alternative
to retroactive EEV screening.
Some have proposed that the identity fraud issue be
addressed through the creation of a biometric work
identification card. While this might be a desirable goal for
the future and definitely deserves further study, I don't see
how it will help improve the existing verification system.
Besides the cost of developing the program, even if every
legal worker had a biometric card to prove it, very few if any
employers have the capability to authenticate the identity of
job applicants. While plenty of barber shops, snowball stands,
and gas stations use the Internet on a regular basis, it is not
realistic to expect them to acquire fingerprint readers or
retina scanners or that type of equipment at this point in
time, and it is not fair to expect communities around the
Nation that are shouldering the burden of illegal immigration
to wait until that kind of technology becomes affordable and
available before they see serious immigration law enforcement.
Finally, there must be a more vigorous worksite enforcement
effort from ICE to address off-the-books employment.
Thank you very much.
[The prepared statement of Ms. Vaughan follows:]
Prepared Statement of Jessica M. Vaughan
Ms. Lofgren. Thank you, Ms. Vaughan. Thank you for
I am going to be quick because we are expecting a vote
within the next 10 minutes on the floor that will consume 40
minutes or so.
I will just say that in terms of assuming that those that
do not adequately contest are not eligible, I think would be a
mistake, and I am going to give an example, because she has
given me her permission, which is the Counsel for this
Ms. Hong has been a United States citizen for over 15
years, and the Congress participates in the Basic Pilot. Even
though she had her United States passport, it came back not
eligible. And Ms. Hong, it took her 7 days, three trips to the
Social Security office, three trips to the House employment
office, three trips to the Judiciary Committee. She is an
immigration lawyer, her boss is the Chair of the Immigration
Subcommittee. She was successful in getting this straightened
But I am mindful that there are people who are not
immigration lawyers, whose boss is not the Immigration
Subcommittee Chair, who might actually give up, and they would
still be United States citizens. So I think we need a better
system than just to assume that if you fail it is okay.
I just would like to say and ask this question I guess of
whoever can answer it, maybe to Mr. Harper. First, we need an
accurate database. Right now it is inaccurate. But the point
you are raising is that having an accurate database actually
poses a threat to the privacy and freedom of the United States.
Can you see any provisions or steps that we might take,
other than fines, because it is the Government that you have
expressed a concern about, Big Brother for lack of a better
word, by involving the private sector or some other steps we
might take to ease the concerns that you have raised in your
Mr. Harper. It is a good question. You are definitely
between a rock and a hard place in terms of a system that works
really well. Well, it has to have really good data and a really
strong biometric connection to the individual. The hard place
is that that puts a lot of power in the hands of the Government
to monitor people, to control them, and we should write policy
with an eye down the horizon to a time when none of us are in
power and someone might be in power that we don't want to have
I think our Government is a great one. Our system is a
great one. But it is not perfect and there is an uncertain
future, so we have to design these systems, which are very
powerful, with that in mind.
The Federal Trade Commission had a meeting earlier this
week, Monday and Tuesday. I didn't attend all of it, but what I
heard of it was very exciting, because I think people there
recognize that distributed systems can provide all the security
in some cases without the surveillance. And there are systems
beginning to be created that put the person in control. It
might be a card or token that the person carries and controls.
And they have the power over what happens with the information.
Centralizing is dangerous. Dispersing is better. There is a
lot to come before we know how to do it.
Ms. Lofgren. Thank you very much. And I think I will ask
the staff to follow-up with the FTC on that distributed system
idea. That is a new one to me.
I am going to yield to Mr. King now, since we are expecting
votes, for his 5 minutes.
Mr. King. Thank you, Madam Chair.
Mr. Johnson, as I read through your testimony and read
through your testimony, it was very efficiently delivered here,
I want to comment, too. You got to a lot of material in in a
short period of time.
The question occurs to me, and it seems to me that when we
step back and take a look at a situation that we have and ask
how do we really want to fix this problem, how would you set
your priorities first. And so I want to say this: if this
Congress could devise a way to pass legislation that
successfully brought compliance with the current law, with
regard to illegal labor and illegal immigration and unlawful
presence in the United States, and those that were unlawfully
present in the United States transitioned back to their home
countries, would you support that kind of legislation?
I am not talking about a roundup. I am talking about
legislation that simply puts incentives in place and if human
nature fit our design, if they flowed back, do you want them to
Mr. Johnson. Well, Congressman, I think if it would allow
them to go back to their home countries and then therefore--and
not disqualify them from returning legally--in other words,
they would not be subject ot the five or 10 year bar, we would
certainly support that. But we wouldn't support a requirement
that would, well, require them to go back to their so-called
home countries because I think as the Pew study has shown,
frankly 5 percent of our workforce is compromised of
undocumented workers, and many Members of the Chamber and other
people representing part of our coalition believe these workers
are necessary parts of their workforce.
Mr. King. Mr. Johnson, I am asking you, are they more
necessary than the rule of law in the United States of America?
Isn't the rule of law a pillar of this Nation's success?
Mr. Johnson. Absolutely. But there are obviously various
ways by which people can be punished for violating the law and
being required to leave the country is one option. A civil fine
is another option. There are many ways in which all of us as
U.S. citizens ``violate the law,'' whether we are speeding or
otherwise. But you have to have a measure of proportionality
and practicality and certainly civil fines----
Mr. King. I understand your answer. And I thank you for
I turn to Mr. Gibbs. You brought some curiosity, as I
listened to your testimony, when you testified that 8 percent
of the initial applicants that are run through Basic Pilot are
Could it be possible that even that full 8 percent or
perhaps more than that would be not lawful for them to work in
the United States? It could be illegal applicants?
Mr. Gibbs. No. That number is----
Mr. King. How would you know?
Mr. Gibbs. Well, that number is from CIS themselves. Their
testimony this week, and Mr. Rosenbaum's testimony was, that is
8 percent incorrect non-confirmation.
Mr. King. I understand the basis for that response, but I
would point out to you that it is not incorrect, because we
have 98.6 percent of those applicants are ultimately approved
between the initial check and the follow-up, where they have
got the opportunity to present their records.
And so I will submit that that is an indication that the
Basic Pilot program is working. And many of those people that
won't apply for the secondary within that 72 hours probably
have figured out that they have been caught in this process and
that is why they don't appeal.
The gentlelady here has got such an interesting case. It is
interesting also that she is here legally and she made the
appeal and even then it was difficult, but she had the
conviction because she had the confidence that she is lawfully
present here. Many of those people do not. Do you concede that
Mr. Gibbs. Well, no, I don't concede the point. It seems to
me that the numbers are 8 percent of people are erroneously
non-confirmed and they----
Mr. King. I won't agree to that. Because 98.6 percent of
them are ultimately approved. So if they are erroneously
identified, that means there is something flawed in our system.
We have got 99.8 percent of all natural born American citizens
that are approved. We have got 98.6 percent of all applicants
that are approved. Eight percent rejected in the first test,
and then the balance of those up to that 98.6 percent are
approved. So I don't know how you can make that statement, Mr.
Mr. Gibbs. Eight percent in your district is 24,000 people
who would have to do what Ms. Hong had to do.
Mr. King. That doesn't mean, though, that they have been
rejected. That just means that our system is working and we are
cleaning the system up.
Mr. Gibbs. I appreciate that.
Mr. King. Let me ask you another question, then, and that
is how would you go about cleaning up a system if you weren't
to use it? I will submit that is the way we clean it up. We are
cleaning it up now. Ms. Hong is--that is clean. I am glad that
is clean. It is going to be a little hard work, but how else
would you clean up the system?
Mr. Gibbs. I really don't understand how the agency--what
they need to do. That is something the agency can best work on.
Let me just make one other point, though. The 24,000, there
is an important problem here, because many employers, according
to WestStat studies, almost half of employers use the program
to prescreen workers. So they were barred from even--they
weren't even told they were non-confirmed, but that is why they
didn't get offered the job.
Ms. Lofgren. The gentleman's time has expired.
Mr. King. I yield back.
Ms. Lofgren. We will go to Mr. Conyers, and if we can go
very quickly so we don't come back after this set of about 40
minutes of voting.
Mr. Conyers. Absolutely.
Just as I was recovering from the Chamber of Commerce
representative's very fair and equal--a very excellent
statement, and just as I was pulling out of it and making
adjustments from my previous assumptions, here comes a Cato
representative who sounds perfectly reasonable and normal about
this approach to the subject matter and raises very clearly the
concern that is where does the American worker fit into the
I congratulate you, sir. Both of you are going to have to
explain to your organizations why Conyers is aligning with you
at this point. But that is your problem.
But where do we fit in here, Gibbs and Harper? What is the
deal? And this is a very important part of it. I come from
where? Detroit, where we are being ripped to shreds by economic
automobile relocation. Talk to me.
Ms. Lofgren. Quickly talk to him.
Mr. Conyers. Well, not Johnson. Johnson goes for it, but I
want to hear from Gibbs and Harper.
Mr. Gibbs. Well, that is why the union is so concerned
about this program. The program will affect every worker. It
will affect American workers who were born here, like you and I
were. It affects people who immigrated here, like Ms. Hong. It
affects workers who came seeking a better life but who haven't
been able to work through the Immigration Services system.
That is why this program is so important, because it
interfaces the Immigration Service process with our own
citizenship process. If we don't get it right, we are going to
harm our entire workforce, whether it is citizens or non-
citizens. That is why the union is so concerned, because we
have Members who are the whole spectrum.
Mr. Harper. I guess I come to this issue and this broad
problem with a disability, which is that I don't know the
answer to the total immigration reform problem.
Analyzing this particular subset of the problem, I think
that huge costs fall on the law-abiding native-born citizen
from this kind of program, but I don't have a solution that
gets you out the other side. It is just that you have
incredible costs in dollars, privacy, from an expanded or
anywhere near perfected electronic verification system.
Mr. Conyers. I appreciate your candor and thank you all.
Ms. Lofgren. The gentleman from California, do you have
one--we have about 6 minutes before the vote will be called, so
we are going to have to----
Mr. Berman. Just one question to Mr. Harper.
From what I know about Cato, you are very concerned about
intrusions on individual liberty and want to preserve maximum
amounts of freedom and you hate regulation. What I ask is
whether or not you can contemplate in a situation where we need
to deal with an intolerable situation, which is the status quo,
you conceive of regulatory measures glommed on to an electronic
employment verification system which can minimize the potential
for abuse of that system.
Mr. Harper. Hate is such a strong term. We have many
concerns about excessive regulation.
You know, you are going to do what you are going to do, and
I am here to call it like I see it. I understand the good faith
of everybody working on this problem to try to come to a
Frankly, in my written testimony, going through this,
trying to figure out where to go on this, the sloppy system we
have right now in the paper I-9, listen, I don't think
requiring employers to be immigration agents is a good policy
in the first place. But if you are going to do it, the sloppy
system you have now might be the best way. If you want to
absolutely minimize false positives----
Mr. Berman. It is not a system. It is not a system.
Mr. Harper. It is a system. It is a really messy system.
Mr. Berman. That insults the concept of system.
Mr. Harper. If you strengthen it, you are going to hurt
Ms. Lofgren. Ms. Waters, do you have any compelling----
Ms. Waters. Just quickly. No, it is not a compelling
question except to say this. Immigration reform is very
complicated and we are going to have to work very, very hard.
And in order to get a reasonable policy on a path to
legalization, we are going to have to get tough on something.
And tough on border enforcement and tough on employers and
enforcement of sanctions against them for not really trying to
do a good job is going to happen.
And I just want to tell my friends at the Chamber of
Commerce and any place else that coming here under the red,
white and blue flag, trying to defend those practices and not
wanting a tough verification system, it ain't going to happen.
Ms. Lofgren. Thank you for that statement.
At this point, I am going to thank the witnesses for their
Without objection, Members will have 5 legislative days to
submit any additional written questions to you, which we will
forward and ask you to answer as promptly as you can to be made
part of the record.
Without objection, the record will remain open for 5
legislative days for the submission of other employment
eligibility verification proposals and any other additional
materials related to this important issue.
Our hearing today has helped illuminate numerous issues
concerning this system. Our next hearing will be on Wednesday,
May 2, at 2 p.m. in Room 2237. We will talk about the point
system that the White House is discussing.
With that, this hearing is adjourned.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Prepared Statement of Susan R. Meisinger, President and CEO, Society
for Human Resource Management and Chair, HR Initiative for a Legal
Madam Chairwoman, Congressman King, Members of the Committee. I am
pleased to submit the following statement on behalf of the Society for
Human Resource Management and the HR Initiative for a Legal Workforce.
The Society for Human Resource Management (SHRM) is the world's
largest association devoted to human resource management. Representing
more than 217,000 individual members, the Society's mission is both to
serve human resource management professionals and to advance the
The Human Resource Initiative for a Legal Workforce represents
human resource professionals in thousands of small and large U.S.
employers representing every sector of the American economy. The HR
Initiative and its members are seeking to improve the current process
of employment verification by creating a secure, efficient and reliable
system that will ensure a legal workforce and help prevent unauthorized
employment, a root cause of illegal immigration.
On behalf of both organizations, we thank the Committee for its
work thus far in the area of improving America's employment
verification process. Our members represent the front lines on
workforce verification, and offer a critical viewpoint. In the end,
this is not just a debate about immigration reform, it is a debate
about workplace management--which impacts all U.S. employers and all
American workers, not just the foreign born. We do not believe there is
a one-size-fits-all solution to employment verification. Rather we
believe that private sector technologies can be effectively
incorporated into the verification and hiring process.
The subject of today's hearing, ``Improving the Electronic
Employment Verification and Worksite Enforcement System'' is central to
deterring illegal immigration to the United States. It is no secret
that the wide availability of jobs in this country has become the
magnet for unauthorized migration. The most critical element for true
immigration reform, therefore, is establishing a foolproof system for
certifying that an applicant is authorized to work in the United
States. Unfortunately, the electronic verification system in place
today is inadequate to meet the demand, and current proposals before
Congress fall far short of what is needed.
Currently, employees are permitted to submit up to 29 different
legally-acceptable documents as proof of eligibility to hold a job in
the United States. This document-based system is prone to fraud,
forgeries and identity theft, making it difficult, if not impossible,
for an employer to differentiate between the legal and illegal worker.
Adding to the problem, the federal government's voluntary electronic
verification program, the ``Basic Pilot,'' is inadequate to meet the
needs of all U.S. employers because it cannot stop identity fraud.
U.S. employers, whether large or small, cannot be expected to
consistently identify unauthorized workers using the existing system,
but they are liable for severe sanctions if these workers find their
way onto the payroll. At the same time, they are subject to claims of
discrimination if they question the validity documents too much.
The proliferation of false or stolen documents can and does cause
reputable employers to mistakenly hire individuals who are not eligible
to work. At the same time, the lack of certainty and threat of
government-imposed penalties may lead some employers to delay or forego
hiring legal workers who are eligible. In either case, the costs are
high for both U.S. employers and legal workers.
Employers need the right tools to verify a legal workforce.
However, HR cannot--and should not--be America's surrogate border
patrol agents. Rather, employers are entitled to an unambiguous answer
to the query whether an employee is authorized to accept an offer of
Congress must transform the current paper-based verification
process into a state-of-the-art electronic system that is accurate,
reliable, cost-efficient, easy-to-use, and shares responsibility among
government, employers and employees. Specifically, we advocate a system
that would verify identity through additional background checks and the
potential use of biometric enrollment conducted by government certified
private vendors. By eliminating subjective determinations of work
authorization documents, this system will eliminate discrimination and
However, before any employment verification system is mandated, it
must meet the following Principles:
Principle 1: Shared Responsibility Among Government, Employers and
Employees--U.S. employers, employees and the federal government share
responsibility for a reliable, efficient, accurate system to verify
Principle 2: Fair Enforcement--U.S. employers should be liable for
their own hiring decisions, not those made outside their control.
Principle 3: Accuracy and Reliability--Employers should not be forced
to participate until the government provides assurances that the system
is accurate and reliable.
Principle 4: Ease of Use--The new verification system should be easy to
understand and to implement at all worksites.
Principle 5: Deployment of Latest Technologies--A new verification
system must make false documents and identity theft ineffective. One
way to achieve effective and efficient worksite enforcement is to
include biometric identifiers or other state-of-the-art technology in
the identity and work authorization process that is capable of
automatically recognizing an individual's identity.
If adequately funded and fairly administered, SHRM and the HR
Initiative believe this new system could eradicate virtually all
unauthorized employment--thereby eliminating a huge incentive for
illegal immigration. It will also eliminate discrimination by taking
the subjectivity out of the verification process.
True employment verification is the only way to ensure fair and
equitable treatment for those individuals who should have access to
legitimate jobs. It is essential for a legal workforce and for
America's national and economic security.
I would again like to thank the Committee. We look forward to
working with you to implement the solutions advocated by SHRM and the
HR Initiative for a Legal Workforce.
Attached are the following HR Initiative for a Legal Workforce
2. Concepts for Secure Electronic Employment Verification
3. Frequently Asked Questions
Joint Statement of the Air Conditioning Contractors of America, the
Associated Builders and Contractors, the Associated General
Contractors, the Mason Contractors Association of America, the National
Association of Home Builders, the National Roofing Contractors
Association, the National Utility Contractors Association, and the
Plumbing-Heating-Cooling Contractors--National Association
Prepared Statement of the Electronic Employment Verification System
Working Group by Angelo I. Amador, Co-Chair United States Chamber of
Commerce; Kelly Knott, Co-Chair, Associated General Contractors of
America; and Scott Vinson, Co-Chair, National Retail Federation/
National Council of China Restaurants
Prepared Statement of the Essential Worker Immigrant Coalition
Prepared Statement of the National Council of La Raza
Prepared Statement of Tyler Moran, Employment Policy Director,
National Immigration Law Center