[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





                       E-VERIFY: PRESERVING JOBS 
                          FOR AMERICAN WORKERS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   IMMIGRATION POLICY AND ENFORCEMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 10, 2011

                               __________

                            Serial No. 112-4

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TOM REED, New York                   LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas                DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

           Subcommittee on Immigration Policy and Enforcement

                  ELTON GALLEGLY, California, Chairman

                    STEVE KING, Iowa, Vice-Chairman

DANIEL E. LUNGREN, California        ZOE LOFGREN, California
LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
TED POE, Texas                       MAXINE WATERS, California
TREY GOWDY, South Carolina           PEDRO PIERLUISI, Puerto Rico
DENNIS ROSS, Florida

                     George Fishman, Chief Counsel

                   David Shahoulian, Minority Counsel














                            C O N T E N T S

                              ----------                              

                           FEBRUARY 10, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Elton Gallegly, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on 
  Immigration Policy and Enforcement.............................     1
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................     4
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......    16
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................    17

                               WITNESSES

Ms. Theresa C. Bertucci, Associate Director, Enterprise Services 
  Directorate, U.S. Citizenship and Immigration Services
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Mr. Richard M. Stana, Director, Homeland Security and Justice 
  Issues, U.S. Government Accountability Office
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Elton Gallegly, a 
  Representative in Congress from the State of California, and 
  Chairman, Subcommittee on Immigration Policy and Enforcement...     3
Prepared Statement of Tyler Moran, Policy Director, National 
  Immigration Law Center, submitted by the Honorable Zoe Lofgren, 
  a Representative in Congress from the State of California, and 
  Ranking Member, Subcommittee on Immigration Policy and 
  Enforcement....................................................     7
Information of the AFL-CIO and Change to Win, submitted by the 
  Honorable John Conyers, Jr., a Representative in Congress from 
  the State of Michigan, and Ranking Member, Committee on the 
  Judiciary......................................................    18
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    21
Material submitted by submitted by the Honorable Zoe Lofgren, a 
  Representative in Congress from the State of California, and 
  Ranking Member, Subcommittee on Immigration Policy and 
  Enforcement....................................................    55
Prepared Statement of Jessica St. Pierre, U.S. Citizen, submitted 
  by the Honorable Zoe Lofgren, a Representative in Congress from 
  the State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................   140

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from Lynn Shotwell, Executive Director, the American 
  Council on International Personnel.............................   153
Material submitted by the Migration Policy Institute (MPI).......   155

 
                       E-VERIFY: PRESERVING JOBS 
                          FOR AMERICAN WORKERS

                              ----------                              


                      THURSDAY, FEBRUARY 10, 2011

              House of Representatives,    
                    Subcommittee on Immigration    
                            Policy and Enforcement,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 2141, Rayburn Office Building, the Honorable Elton 
Gallegly (Chairman of the Subcommittee) presiding.
    Present: Representatives Gallegly, Smith, Gohmert, Poe, 
Ross, Lofgren, Conyers, and Pierluisi.
    Staff present: (Majority) Andrea Loving, Counsel; Marian 
White, Staff Assistant; and Tom Jawetz, Minority Counsel.
    Mr. Gallegly. Good morning. I call the Subcommittee to 
order.
    I have an opening statement. Then I will defer to our 
colleagues and get our hearing going.
    Most folks on this Committee know that I have long said 
that the way to solve the problem of illegal immigration is not 
all that complicated. First, we must enforce our laws, and 
second, we must discourage illegal immigration. And finally, we 
must remove the benefits that make it easy for illegals to stay 
in this country.
    With nearly 14 million unemployed Americans, removing the 
magnets is more important now than ever.
    The biggest magnet for illegal immigrants is jobs. So we 
owe it to the American people to do whatever we can to reduce 
the number of American jobs going to illegal immigrants. The E-
Verify program helps to do just that. E-Verify allows employers 
to check the work eligibility of hew hires by running the 
employee's Social Security number or alien identification 
number against Department of Homeland Security and Social 
Security Administration records.
    In 1995, I chaired a congressional task force on 
immigration reform. We published a 200-page report with more 
than 80 specific recommendations. One of those was for an 
electronic employment eligibility verification system which was 
included in Chairman Smith's 1996 immigration reform bill. That 
system is now known as E-Verify.
    It is currently a voluntary program for most of the almost 
250,000 employers who use it. It is free, Internet-based, and 
very, very easy to use. And the employers who use it all agree.
    In an October 2010 USCIS customer satisfaction survey, E-
Verify received 82 out of 100 on the American Customer 
Satisfaction Index scale. The 82 scored by E-Verify is much 
higher than the Federal Government's satisfaction index of 69.
    And 76 percent of the National Federation of Independent 
Business members said it would be a minimal or no burden if 
there was one telephone number or a single Internet web site 
where we could check a new employee's eligibility to work. And 
that is exactly what E-Verify is.
    But I also want to acknowledge that there are two very 
important components that must exist to help ensure that U.S. 
jobs go to Americans and legal residents.
    First, the Federal Government must put in place enough 
enforcement resources to ensure proper use of E-Verify. 
Employers must have to know if they misuse the system, for 
instance, by ignoring the fact that the photo in the E-Verify 
does not match the photo on the identity document provided by 
employee, they will be investigated and held accountable. Right 
now, there is nowhere near the level of enforcement needed for 
E-Verify or really, for that matter, anything having to do with 
illegal immigration.
    Second, the SSA must work in conjunction with DHS to use 
Social Security no-match letters. If the same Social Security 
number is being queried by employers in several different 
States at around the same time, the likelihood of fraud is very 
high.
    These steps will help E-Verify's continued success.
    And I look forward to the testimony of our witnesses today.
    And at this point, I would yield to my good friend from 
California, the Ranking Member, Ms. Lofgren.
    [The prepared statement of Mr. Gallegly follows:]
    
    
    
                               __________

    Ms. Lofgren. Thank you, Mr. Chairman.
    Today's hearing on E-Verify continues the conversation we 
began at the Subcommittee's first hearing on ICE worksite 
enforcement. The situation we face is clear to everyone. Our 
immigration system is broken and it doesn't meet the needs of 
our country. As we discussed before, simply continuing to 
enforce our broken immigration laws is not a serious job 
proposal. Pressing harder on the gas without fixing the vehicle 
will only endanger our recovering economy, hurt American 
workers, and leave our immigration system as broken as when we 
started.
    Being from Silicon Valley, I am a big advocate for 
technological solutions to problems, and I support a carefully 
designed electronic employment eligibility verification system 
that works and contains sufficient safeguards. In fact, since 
2005, every serious proposal to fix our broken immigration 
system has tackled the challenge of verifying the employment 
eligibility of our workforce.
    But we need to take into account the complex realities of 
our economy. There are those who argue that making E-Verify 
mandatory for all employers will destroy the jobs magnet by 
preventing unauthorized workers from getting new jobs. They 
want employers to use E-Verify not only for new hires, but for 
existing employees as well. They believe this issue boils down 
to simple math, that every time we remove an undocumented 
worker from a job or from the country, we open that job for a 
native-born worker. But this simple math is just bad math. The 
truth is that mandating E-Verify alone would not destroy the 
jobs magnet. It would actually encourage businesses and workers 
to enter the underground economy by working off the books.
    When the Congressional Budget Office analyzed the SAVE Act 
in 2008, it concluded that mandating E-Verify without reforming 
our broken immigration laws would suck $17.3 billion out of the 
tax system. Driving millions of workers further into the 
shadows would not only cost this country $17.3 billion in lost 
revenue, it would depress wages and working conditions for all 
workers, including United States workers, as unscrupulous 
employers would be better able to undercut those that play by 
the rules.
    It gets worse. In some industries, like agriculture, 
mandating the use of E-Verify would actually reverse the 
polarity of the magnet, shipping millions of jobs overseas. In 
agriculture where 75 percent of the jobs are filled by 
undocumented immigrants, E-Verify would decimate the 
agricultural economy, and as we have learned over the years, 
the increase in wages necessary to get U.S. workers to go to 
the fields as migrant workers would hike production costs so 
high that U.S. food products would no longer be competitive 
with imported products. The end result would be the closure of 
America's farms, a less secure America, and the mass offshoring 
of millions and millions of U.S. jobs, including all the 
upstream and downstream jobs that are created and supported by 
our agriculture industry.
    The jobs magnet that draws people to this country, a sign 
of economic prosperity and opportunity, would be reversed, 
repelling businesses and entrepreneurs from investing in our 
country and contributing to our economic recovery.
    I am pleased to have these witnesses before us today 
because I expect that we will hear about ongoing efforts to 
improve the accuracy of E-Verify. I also expect, however, that 
we will hear about serious challenges that remain.
    One issue of great concern during this period of economic 
recovery and high unemployment is the E-Verify error rate, 
which has directly led to tens of thousands of U.S. citizens 
and employed authorized noncitizens to improperly lose their 
jobs. Based on an analysis of USCIS data, the National 
Immigration Law Center estimates in their submitted testimony 
that mandating E-Verify for all employers would jeopardize the 
jobs of about 1.2 million American citizens and work-authorized 
nonimmigrants. I would ask unanimous consent, Mr. Chairman, to 
enter that statement into the record.
    Mr. Gallegly. Without objection.
    [The information referred to follows:]
    
    
    
                               __________

    Ms. Lofgren. Today's hearing is E-Verify: Preserving Jobs 
for American Workers. But until the problems are fixed and 
until we fix our broken immigration system more generally, the 
statement is simply untrue.
    Mr. Chairman, I thank you for recognizing me for my opening 
statement and yield back.
    Mr. Gallegly. Thanks to the gentlelady.
    At this time, I would yield to the Chairman of the full 
Committee, my good friend, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    With unemployment over 9 percent now for 21 months, jobs 
are scarce and families are worried. According to the Pew 
Hispanic Center, 7 million people are working in the U.S. 
illegally. These jobs should go to legal workers.
    One effective program to help ensure jobs are reserved for 
citizens and legal workers is E-Verify. It is an electronic 
employment eligibility verification system run by U.S. 
Citizenship and Immigration Services in conjunction with the 
Social Security Administration. Through E-Verify, the Social 
Security numbers and alien identification numbers of new hires 
are checked against Social Security Administration and 
Department of Homeland Security databases in order to help 
employers determine who is eligible to work in the U.S.
    I have used the program, frankly, repeatedly to ensure that 
all staff members in my office are eligible to work in the 
U.S., as all Members of Congress are required to do. It is 
free, quick, and easy to use.
    I am aware of criticisms of E-Verify, some legitimate and 
most not. But the fact remains that E-Verify is a very 
effective tool for employers who want to hire legal workers.
    Perhaps the most valid criticism of E-Verify is the 
identity theft loophole. Specifically, if an employee provides 
an employer with a stolen Social Security number and matching 
identification information, E-Verify will determine that the 
Social Security number is one that is work-eligible.
    USCIS has taken steps to help close the ID theft loophole. 
For instance, they have instituted the photo-matching tool. 
This allows an employer to view a picture of the employee from 
a green card and employment authorization document or a 
passport to determine that the employee is in fact the person 
to whom the Social Security number or alien identification 
number was issued. I am interested in hearing what USCIS has to 
say today about further improvements for the identity theft 
loophole and expansion of the photo-match tool.
    Also, it is critical that DHS and SSA work together to 
investigate any suspicious overuse of Social Security numbers 
through E-Verify.
    One issue regarding the identity theft loophole that I hope 
Ms. Bertucci will address was noted by a 2009 Westat study on 
E-Verify. The study stated that 3.3 percent of all E-Verify 
queries are for unauthorized workers and just over half of 
those are actually found to be work-authorized. Now, this 
figure is often cited by opponents to the program. However, it 
is important that Westat says they estimated this percentage 
based on their assumptions of the number of illegal immigrants 
in the workforce. It was not based on the discovery of any 
illegal immigrant individuals actually in the workforce. So I 
would caution against using this number.
    Studies by Westat and USCIS show that E-Verify's work 
eligibility confirmation rates continue to improve as the 
system is upgraded. Last year's USCIS data shows that 98.3 
percent of employees were confirmed as work-authorized within 
24 hours. And a 2009 Westat report found that those eligible to 
work are immediately confirmed 99.5 percent of the time.
    Nearly 250,000 businesses now use E-Verify and over 1,300 
more sign up for it each week.
    I supported the previous Administration's attempts to 
expand the number of employers using E-Verify, and they did so 
through outreach to businesses, but they also did so by 
mandating certain Federal contractors and others use E-Verify.
    Today I hope to hear how the current Administration plans 
to expand those requirements. With 26 million Americans 
unemployed or underemployed, expanding E-Verify would help open 
up jobs that they need.
    Thank you, Mr. Chairman, and I will yield back the balance 
of my time.
    Mr. Gallegly. I would yield to the Ranking Member of the 
full Committee, my good friend, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Gallegly. I wasn't at the 
first Subcommittee meeting hearing, and so I didn't have a 
chance to put in my congratulations to your Chairmanship.
    We are here faced with a very curious problem. In a way it 
is simple, but then in a way there are some problems and 
complexities here.
    Now, we meet in the midst of record deportations from the 
United States for the last 2 years. Those numbers have been 
going up. And there is no one that I know of that would argue 
that we should stop enforcing our immigration laws. But 
enforcement without reform will promote a race to the bottom 
that can only hurt the American worker in the end.
    And that is why I ask unanimous consent to put in the labor 
movement framework for comprehensive immigration reform by two 
large unions, AFL-CIO and Change to Win. These two unions 
represent over 16 million workers, more than 60 unions, and 
have opposed an enforcement-only approach and have called for 
real solutions that can fix our broken immigration system.
    [The information referred to follows:]
    
    
    
                               __________

    Mr. Conyers. So I hope that the discussion this morning in 
Judiciary turns around the two twin methods that many are 
recommending. Enforcement, yes, but that we have got to also 
talk about the real solutions of reform. Enforcement and reform 
is what I am going to be looking for in our discussion this 
morning.
    You see, more and more are beginning to recognize that an 
enforcement-only approach does not diminish the demand for 
willing workers. They could care less about enforcement. They 
all know they could be busted. And you know, as I travel across 
the country, Ranking Member Lofgren, every hotel I go in, there 
are people that if you wanted to bet whether they had legal 
status in this country or not, I would be willing to take that 
bet because I suspect not. And so we have a certain, sometimes, 
hypocrisy going on. Some of the very people that want tough 
enforcement are the ones that are benefitting from this 
workforce that is here knowing that if they get turned in or 
turned over to law enforcement or ICE, they are on the way out.
    And so I just want us to think about what are we thinking 
about and what are we talking about when we raise the issue of 
reform because enforcement only will not diminish the demand 
for willing workers, but merely push the undocumented further 
into the shadows which then makes them more susceptible to 
abuse and exploitation which drives down wages and working 
conditions for other workers, citizen and noncitizen alike. 
That is why the unions want us to look more at the reform part 
of this immigration challenge.
    That is one of the many dangers of an over-rush to E-Verify 
mandatory for all workers because without fixing our 
immigration system, the problem is going to still continue. We 
know the Congressional Budget Office estimates that E-Verify, 
without broader immigration reform, will suck $17.3 billion 
annually out of our Federal tax revenues because millions of 
workers are currently on the books and paying payroll taxes, 
and what will they do? They will simply go off the books and 
into the underground economy which empowers bad employers and 
endangers everyone else.
    We take notice of the fact that immigrants often fill 
critical gaps in our own workforce. Can we be candid here this 
morning? There are too many jobs that Americans are unwilling 
to take. Period. They do not want the work. It is a lousy job 
and it doesn't pay on top of it. And there is where the market 
for illegal immigrant labor comes in.
    In the 111th Congress, we found out at a hearing on 
agricultural workers that experts on all sides of the debate 
agreed that Americans are not returning to the fields to work. 
Who doesn't know that? Nobody wants that stoop labor out on 
farms under tough conditions.
    We learned that the increase in wages needed to get our 
workers to perform seasonal agricultural work would put 
American farmers out of business. We can't afford them. And a 
story told by one of our Republicans' own witness demonstrated 
that economic harm that would be done if we followed their 
enforcement-only approach.
    A grower who established a program to attract American 
workers to plant and harvest sweet potatoes had to close the 
program down because it just wouldn't be profitable. Imagine 
the damage we would cause if our entire agriculture industry, 
millions of jobs were offshored because it could no longer 
compete with international growers. That is a possibility if we 
make E-Verify mandatory for all employers, including those in 
the agriculture industry. It would be everybody. Who has got an 
answer for that? I hope that is raised in this discussion.
    And I will put the rest of my statement in the record, Mr. 
Chairman, and thank you for your indulgence.
    Mr. Gallegly. Without objection, the statement will be put 
into the record in its entirety.
    [The information referred to follows:]
    
    
    


                               __________
    Mr. Gallegly. I appreciate the gentleman's comments.
    And I want to welcome our two very distinguished witnesses 
today. And for the record, our witnesses' written statements 
will be entered into the record in its entirety.
    Our first witness, Theresa Bertucci, currently serves as 
the Associate Director of the Enterprise Services Directorate 
for the U.S. Citizenship and Immigration Services, known as 
USCIS. Welcome, Ms. Bertucci, and we will hear your testimony 
at this point.

     TESTIMONY OF THERESA C. BERTUCCI, ASSOCIATE DIRECTOR, 
     ENTERPRISE SERVICES DIRECTORATE, U.S. CITIZENSHIP AND 
                      IMMIGRATION SERVICES

    Ms. Bertucci. Thank you. Chairman Smith, Chairman Gallegly, 
Ranking Member Lofgren, and Members of the Subcommittee.
    Mr. Gallegly. Ms. Bertucci, can we just hit that button 
please? Thank you.
    Ms. Bertucci. It is on. I am sorry. Can you hear me now? 
Okay. Sorry.
    Chairman Smith, Chairman Gallegly, Ranking Member Lofgren, 
and Members of the Subcommittee, I am grateful for the 
opportunity to discuss our shared goal of effective employment 
eligibility verification through the E-Verify program.
    I am pleased to report that the E-Verify program continues 
to grow at a steady pace. As of today, more than 246,000 
employers are enrolled, representing more than 850,000 
worksites, or 11 percent of employers. This 11 percent figure 
compares the 850,000 worksites to the 7.7 million business 
establishments from the U.S. Economic Census in 2007. More than 
1,300 new employers enroll each week. During fiscal year 2010, 
16.4 million queries were run with more than 5.3 million new 
queries this fiscal year.
    E-Verify's accuracy rate is improving. Overall data 
mismatches have been reduced by 5.4 percent since 2007 due to 
enhancements to the system.
    We appreciate the work undertaken by GAO in addressing the 
success of the program and the challenges confronting E-Verify. 
We are actively working to implement its important 
recommendations to improve the system.
    Strengthening the integrity of the system is one of our 
primary goals. While E-Verify alone cannot detect all instances 
of identity fraud, we are working to improve the ability to 
detect fraud and significant steps have been taken. E-Verify 
expanded photographic verification to include U.S. passports 
and passport cards, employment authorization documents, and 
permanent resident cards. Of the 400,000 matches of DHS photo 
documents, the system has detected 4,000 mismatches.
    Since June 2010, E-Verify has used a commercial database to 
validate the legitimacy of employers using the system.
    The program has also increased monitoring and compliance of 
employer transactions. In fiscal year 2010, we issued 16,125 
compliance actions with over 9,600 actions to date this fiscal 
year.
    USCIS also remains dedicated to protecting employees' 
rights. E-Verify implemented an employee hotline that offers 
information and assistance on the program, and callers can also 
use the hotline to lodge complaints about possible misuse or 
discrimination. The hotline handled over 15,000 calls last 
year.
    USCIS and DHS Civil Rights/Civil Liberties have produced 
educational training videos that provide information to 
employees and employers about their rights and their 
responsibilities.
    In the spring of 2011, we plan to pilot the E-Verify Self 
Check feature. Self Check will be a free web-based service that 
allows workers to verify their Government records before they 
are hired, which serves to both empower employees with 
information and to help further reduce data mismatches. Self 
Check will have identity assurance protections built into the 
system.
    USCIS is dedicated to and fully engaged in the improvement 
of E-Verify so its use can increase. To achieve that goal on an 
ever-broadening scale, additional challenges remain. For 
example, the E-Verify system is predicated on an employer's 
Internet access. The ability of some sectors of the market to 
access the system will need to be addressed. As use increases, 
Federal agencies involved in the program will need to expand 
their capacity to administer the daily results of the query 
process, including the process of providing assistance to 
employees who assert system error.
    The increased use of E-Verify will also require USCIS to 
improve its information technology infrastructure and 
analytical tools allowing for increased monitoring and 
compliance. The program has made great strides in becoming a 
fast, easy-to-use, and more accurate tool that helps employers 
maintain a legal workforce and comply with our Nation's 
immigration laws.
    We are poised to meet the challenge that accompanies the 
growth of E-Verify and the needs of our customers, both 
businesses and employees. On behalf of USCIS Director Alejandro 
Mayorkas and all of our colleagues at USCIS, we appreciate the 
Congress' continued strong support of the program.
    Thank you for the opportunity to testify before the 
Subcommittee. I look forward to your questions.
    [The prepared statement of Ms. Bertucci follows:]
               Prepared Statement of Theresa C. Bertucci





                               __________
    Mr. Gallegly. Thank you very much, Ms. Bertucci.
    Our second witness is Richard Stana. Mr. Stana serves as 
Director of Homeland Security and Justice Issues at the GAO and 
has dedicated 35 years of service to the GAO and has served at 
headquarters, field, and overseas services and directed reviews 
on a wide variety of complex and military--both military and 
domestic. Mr. Stana, welcome.

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

    Mr. Stana. Thank you, Chairman Gallegly and Ms. Lofgren, 
for inviting me to testify at this important hearing.
    As you know, immigration experts say that the single most 
important step that could be taken to manage lawful immigration 
and reduce illegal immigration is to develop an effective 
worksite enforcement and authorization system.
    E-Verify does provide employers with a tool to help 
identify those who are authorized to work.
    Our recent report found that SSA and USCIS have taken some 
important steps and have improved the program, and yet, 
significant challenges remain. In my statement this morning, I 
would like to just highlight three of those issues. And I know 
that you have my prepared statement and you probably have a 
copy of our full report. So let me go right into the three 
areas.
    First, let's talk about the TNC's. USCIS has substantially 
reduced the number of TNC's. Just a few years ago, the TNC 
level, the tentative nonconfirmation level, stood at about 8 
percent, and many of those turned out to be U.S. citizens who 
were improperly identified as not being work-authorized. That 
figure has gone down to about 2.6 percent and most recently 
below 2 percent, although that might be an anomaly. We will 
wait and see. That was just 1 month's worth of data.
    USCIS did this by expanding the number of databases it 
queries and trying to refine the data through common error 
searches before they issue a TNC, and that has greatly reduced 
the number of TNC's.
    Now, having said that, TNC's continue to occur for a number 
of reasons and mainly because the information in the data sets 
at USCIS, DHS, and SSA have not consistently recorded an 
individual's name. You might come to the United States with 
several surnames or be in the United States with several 
surnames, a hyphenated name, or a long name that was somehow 
shortened or anglicized. And when you enter data or have data 
entered into different data sets, the name may be recorded 
differently and thus create a mismatch and a TNC. There is no 
law that compels an individual to record information 
consistently among several data sets, and this is an issue.
    So improving Government data sets, improving the 
information that employees have to help refine the data that 
they submit, and correcting inaccuracies or inconsistencies in 
agency data sets is really important to increasing the accuracy 
of E-Verify determinations. In the short run, it might increase 
the burden of the agencies, particularly at SSA, but in the 
long run, it will not only help with the system, but with 
respect to SSA, when it comes time to retire and collect your 
earnings, your system name and earnings records will be ready 
to go.
    The second issue I want to talk about is identity theft and 
employer misuse. Despite improvements to reduce document fraud, 
E-Verify still cannot detect the use of eligibility documents 
that are either someone else's who is work-authorized or 
somehow the employer may provide a document to the worker to 
use that is not their own. The exact magnitude of the problem 
is unknown, but Westat estimated that about 3.4 percent of the 
confirmations that were issued a few years ago were actually to 
people who were not work-authorized, but they either used phony 
documents themselves or were complicit with the employers in 
gaining work authorization.
    USCIS has a photo-matching tool that Ms. Bertucci 
mentioned. It can currently query for three documents that have 
photos. But a person can seek and gain work authorization by 
using any number of 26 documents. So while that has helped, it 
is not a panacea.
    Also, with respect to the photo-matching tool, there have 
been instances--and we learned about this during our field work 
in Arizona--where employers have coached workers not to use 
documents that are part of the photo-matching tool and thus 
evading that important check. Biometrics might help, but we all 
know biometrics can be costly to both the Government and to 
employers, and there are privacy concerns about how much 
information the Government ought to have in its files that will 
need to be resolved.
    Turning to employer misuse, some employers have limited 
pay, restricted work assignments, or even terminated employees 
who received a TNC, and this is wrong. The magnitude is not 
known. It exists. USCIS cannot determine these things from its 
data sets, but it needs to be more vigilant. I think USCIS only 
scans about 2 percent of employers in its nets to try to figure 
out how much of this abuse is going on. It does not do a 100 
percent check. It may be able to do more when this new data 
system comes up.
    My final issue involves resources, and it is a subject that 
we have all talked about before at one time or another. An 
effective employment authorization system requires resources to 
ensure compliance with the system. That is true for E-Verify. 
It is true for the I-9 system. The resources are not there to 
do an effective job. USCIS must rely on ICE to investigate, 
sanction, and seek prosecution, but given ICE's existing 
priorities and resource constraints, it is limited in its 
ability to do so. The same limitations would exist if E-Verify 
were to be made mandatory.
    Regarding the onsite checks of employer compliance with E-
Verify rules, the so-called misuse or discrimination issue, to 
our knowledge, USCIS staff has made one site visit as of last 
August to one employer to check on those issues.
    So policy decisions are going to have to be made about how 
to effect a credible worksite authorization and enforcement 
program using E-Verify to include the resources that are needed 
to make it successful, and these policy decisions have yet to 
be made.
    Thank you very much.
    [The statement Mr. Stana follows:]
                 Prepared Statement of Richard M. Stana



                               __________

    Mr. Gallegly. Thank you very much, Mr. Stana.
    At this point before we go to questions, I would like to 
take just a brief break and give the Deputy Chief of the 
Verification Division at USCIS an opportunity to provide us 
with a visual demonstration of how E-Verify works. Kathy 
Lotspeich is our Deputy Chief. Kathy, are you ready?
    Ms. Lotspeich. I am ready.
    So I am just going to run really quickly for you here two 
cases: one that goes through automatically and one that is 
issued a tentative nonconfirmation.
    So here I am on our home page. I am going to click on ``new 
case.'' What the employer does is they enter information from 
the form I-9. So here on the form I-9, the example I am going 
to use is someone who attested to be a citizen of the United 
States.
    And I click ``continue.'' And then it asks me which 
documents the individual presented, and that will help me then 
determine what I need to enter into the system. For the demo 
today, I am going to hit ``list B and C documents,'' which are 
typically a driver's license and a Social Security card. Then I 
just enter a few data points from the form I-9. I actually do 
not need to put in their address or anything that is actually 
on the form I-9. I can just add, for this case, the name, date 
of birth. We have the citizenship status and the Social 
Security number. And then I go down and I enter the hire dates. 
And so for the hire date, I am going to enter today's date 
which is February 10, 2011.
    I click ``continue.'' And then here it comes up as 
employment authorized. And so what the employer does at this 
point is they can take this case verification number and put it 
on the form I-9 or they could also print out some of the case 
details. I am going to select ``yes, the person continues to 
work.'' And they could attach that to their form I-9.
    And note here when the employer closes a case, they could 
also select that the case is invalid. So if there was some type 
of a mistake made--this isn't a zero sum game--the employer can 
start the process over again.
    I am going to go ahead and close this out.
    And up here I could also print this out and attach it to 
the form I-9.
    So now I am going to go ahead and just really quickly show 
for you another case where the individual gets a tentative 
nonconfirmation.
    So I select ``new case.'' And again, I am going to attest 
as a citizen of the United States. ``List B and C documents'' 
and again just enter the information and then, as before, enter 
today's date.
    So now it is asking me to double check the information 
below. The system knows it is about ready to issue a tentative 
nonconfirmation but does want to give the employer a second 
chance at correcting any errors.
    I am going to go ahead and select ``continue.'' And now the 
system is telling me that I have a tentative nonconfirmation 
with the Social Security Administration. It tells me that the 
information does not match, and it stresses that this does not 
mean that the employee is not authorized to work in the United 
States. However, there is some additional action required.
    And at this point, the employer can give the employee a 
letter, which we have in Spanish and in English, giving a lot 
of the information about the employee, why the number did not 
match, what the employer needs to do, instructions for the 
employee why they received this notice, the opportunity to 
contest or not contest, and then information about their 
rights, and also a number they can call us at E-Verify or the 
Office of Special Counsel.
    And then I will conclude our demonstration at this point. 
So basically the employee then takes this letter to the Social 
Security Administration or may call us at the Department of 
Homeland Security to resolve their case.
    Thank you.
    Mr. Gallegly. Thank you very much, Ms. Lotspeich.
    At this point, I would like to ask Ms. Bertucci a couple 
questions. In your written testimony, you discuss the 
Monitoring and Compliance Branch which detects potential misuse 
with E-Verify by employers. I know you have issued 7,461, 
according to your statement, compliance letters, but what is 
the outcome of the issuance of these letters? And how many have 
been ignored? And what are the consequences of ignoring a 
compliance letter?
    Ms. Bertucci. Thank you, sir.
    The difference in letters issued between what I said in my 
oral testimony of 9,600 was updated today from the time we 
submitted my written statement. So that is the difference. 
First of all, I want to point that out. And that is this 
present fiscal year. Last year, the number was 16,121.
    We really stood up the compliance group at full swing 
really, I would say, during 2010. We are about to hire even 
additional people out in our Nebraska office. So we are 
building up that compliance component.
    We send out those letters as the first--we monitor various 
behaviors by employers--to include not using the system, 
signing up and not using the system. That is one thing we will 
monitor. We will monitor multiple uses of SSN's to determine 
prior to the fixes to the system that Kathy just demonstrated 
to ensure that it wasn't errors in--typos, frankly, or errors 
in entering the data. Those are some of the enhancements we did 
to the system related to that. But more importantly, in case it 
is something else going on, we will monitor those kinds of 
behaviors. And there are a number of other behaviors that we 
will monitor to include an employer running the system against 
a current employee, which is not allowed. It has to be upon 
hire and/or not responding to a high number of TNC's possibly 
that we are not seeing closed out. What is going on at that 
employee worksite?
    So really in the end what we are doing is we are either 
calling them--so let me be clear that we are either calling 
them in that 16,000 or 9,600 number or we are sending them a 
written letter. We are then doing the active reach-back to 
those employers to see whether it is an education issue or 
anything else. We have not yet done it, and the end result 
would be we would terminate their MOU with us on monitoring and 
compliance. However, if we saw egregious conduct by the 
employer in any way, shape, or form that we believe is 
inappropiate, according to our MOU's with ICE and/or DOJ's 
Office of Special Counsel that has jurisdiction over possible 
discrimination, we work with those offices as well.
    So that is the kind of compliance we are doing today, and 
our ability--I think Mr. Stana talked to it--is that one of the 
things we really are trying to do is stand up a better 
analytical tool to be able to do better monitoring and 
compliance. Right now, frankly, it is a little clumsy on the 
basic technology infrastructure that we have today. So we are 
working to improve that tool hopefully by later this year. We 
are going to have a pilot running to do even more analysis of 
the data.
    Mr. Gallegly. Have there been any employers prosecuted as a 
result of misuse?
    Ms. Bertucci. First of all, we have not really referred 
anything yet to ICE. Under the MOU, we can. So ICE is out doing 
their jurisdictional responsibilities, and sometimes, frankly, 
we will come across or they may come across an employer who 
also uses the system. So the worksite enforcement and 
prosecution are on the ICE side of the house.
    Mr. Gallegly. But we have over 9,000 of these letters that 
you have mentioned.
    Ms. Bertucci. Yes.
    Mr. Gallegly. And out of the 9,000-plus, there really 
hasn't been any consequence at all, has there?
    Ms. Bertucci. The system is a voluntary system. To a great 
extent, we believe the majority of the employers that are using 
the system are trying to comply with the law and the 
requirements of our system. So what we are doing is the 
outreach to ensure is there a training issue, is there a data 
issue, is it those kinds of things? We do not have enforcement 
authority within USCIS certainly on a prosecution standpoint. 
But if there are egregious behaviors that we believe are worthy 
of referral, then we would refer those to ICE within their own 
set of priorities for follow-up and possible review.
    Mr. Gallegly. Obviously, if the program was not voluntary 
and it was mandatory, the situation and the incentive on the 
part of the employer would be greatly different. In fact, this 
program was originally introduced as a mandatory. It was passed 
out of this Committee and the bill, mandatory. And then when it 
came back in conference, that is when it got downgraded to 
something less than what would be effective in my opinion.
    My time has expired. I would yield to the gentlelady from 
California, Ranking Member, Ms. Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Before my questions, I would like to take care of a few 
housekeeping items.
    First, Congresswoman Sheila Jackson Lee called to let me 
know that she is Ranking Member on a Subcommittee over at 
Homeland Security and hopes to get here if that hearing 
concludes and offers her apologies for the unavoidable absence.
    I would also like to ask unanimous consent, Mr. Chairman, 
to submit statements from the Agricultural Coalition for 
Immigration Reform, the American Council on International 
Personnel, the Main Street Alliance for the National Leadership 
Council, statements from the faith community, including the 
Catholic Bishops Committee, the American Jewish Committee, 
Church World Service, Sisters of Mercy, the Unitarian 
Universalist Association of Congregations, the Friends 
Services, the Episcopal Diocese of California, the St. Norbert 
Abbey, the Evangelical Lutheran Church of America, Catholic 
Charities of Yakima, Washington, the Jesuits California 
Province, the Coalition of Episcopal Latinos, as well as 
statements from Illinois State representatives, Texas State 
representatives, Cook County commissioners, an additional Texas 
State representative, the National Immigration Law Center, the 
National Immigration Forum, the American Civil Liberties Union, 
the Asian American Center for Advancing Justice, the American 
Immigration Lawyers Association, the Anti-Defamation League, 
CAUSA Oregon, Coalition for Human Immigrant Rights of Los 
Angeles, the Colorado Immigrant Rights Coalition, Farmworkers 
Justice, the Hispanic Association of Colleges & Universities, 
LULAC of Syracuse, the Muslim American Society Immigrant 
Justice Center, One America, Racine Dominicane, and the Wayne 
Action for Racial Equality.
    Mr. Gallegly. Without objection, they will be made a part 
of the record of the hearing.
    [The information referred to follows:]
    
    


                               __________
    Mr. Gallegly. And with that, I would yield to the 
gentlelady for her questions.
    Ms. Lofgren. Thank you very much, Mr. Chairman.
    I have many questions. And first, let me just say that I 
think it is helpful to have this hearing, but there are a 
variety of studies, analyses available to us. And one that has 
just been released within the last few weeks is an analysis by 
Bloomberg Government, and this is the conclusion that the 
Bloomberg analysis made. Although E-Verify is free to the 
employer, it does cost employers to become ready to use the 
system. And one of the estimates from Bloomberg is that most of 
the burden would go to small businesses. In fact, they estimate 
that if the E-Verify had been mandatory for all employers last 
year, it would have cost businesses $2.7 billion on their end 
and that most of that cost would be for small businesses. In 
fact, Bloomberg estimates $2.6 billion that would be borne by 
small businesses for a variety of reasons. They may not have an 
Internet connection. They would have to get one, training 
employees, and the like.
    Has USCIS involved the small business community in the 
analysis of what you are doing, and what have they told you?
    Ms. Bertucci. n today's environment 73 percent of our 
companies or our employers are employers of under 100 people. 
So I realize there are various definitions of small businesses, 
and certainly a small shop is--so 73 percent of our members or 
our participants are small business. We have actively engaged 
in outreach. We understand the concerns. We believe we 
understand the concerns of small business. We are working very 
closely with the Small Business Association to do a lot of 
outreach with that community. But so far, I would not say we 
have done that kind of analysis.
    Ms. Lofgren. Okay.
    Turning to Mr. Stana--and thank you for your years of 
service at GAO, one of our favorite orgs because you call it as 
you see it whether we like it or not.
    We have heard that the E-Verify error rate is going down, 
and that is good. However, if there are wrong decisions made 
through whatever error, it has real consequences for people. 
And looking to your December 2010 report, I mean, you indicated 
that American citizens could lose jobs over misspellings and 
the like. We had an occasion to meet a young woman, Jessica St. 
Pierre, who was a former telecommunications worker in south 
Florida, born and raised in the United States. She lost a good-
paying job because of an E-Verify error, and she tried for 
months to discover the error, to fix the problem, and she was 
unemployed, I mean, that whole time. The problem still hasn't 
been resolved and she had to accept a lower-paying job because 
of this mistake.
    I would ask unanimous consent to enter her statement into 
the record.
    [The information referred to follows:]
    
    
    
                               __________

    Ms. Lofgren. But I would note that your report in December 
indicates that Privacy Act requests take an average of 104 days 
for a response to determine inaccuracies. Can you talk about 
the challenges that workers like Jessica face and what 
procedures are in place when an American citizen loses her job, 
is fired because of a mistake?
    Mr. Stana. Yes. That is sort of a story behind the numbers, 
if you will. If you look at the gross statistics, 98 percent 
are work-authorized. There is no problem. Of the ones who are 
not work-authorized, another maybe .3 percent, say a third of a 
percent, eventually are work-authorized through their queries. 
But there are some. Either the employer doesn't tell them that 
they have a TNC, or they have a TNC and somehow they can't get 
it resolved in 10 days or they can't get to an office in 10 
days, and they receive a final notification through the system 
and they don't get a chance to. Oftentimes an employee does not 
know where the source of the discrepancy is, whether it is in 
the SSA data set or if it is in a DHS database. That is where 
the 104 days comes in.
    I also would note that when a final nonconfirmation comes 
in, there is no right of appeal, and that is what may have 
happened in that particular instance.
    So there are issues that would have to be worked out if 
this were to be made mandatory or somehow had broader 
application. That doesn't mean that the system doesn't work for 
most people. It is just trying to make sure that these kinds of 
cases can be resolved to a satisfactory outcome.
    Ms. Lofgren. Well, if you think about--just extrapolating, 
if we were to make this mandatory across the entire American 
workforce, let's say we are successful in getting it down to 1 
percent. We are not there yet. That is a million Americans that 
could be fired or not get a job because of an error rate.
    Mr. Stana. And that is why, we recommended--and as Ms. 
Bertucci said, they accepted that recommendation--that USCIS 
find a way to make it easier to find the source of the error so 
that you identify those who are work-authorized, whether they 
are legal permanent residents with an EAD or they are U.S. 
citizens, to make sure that they can get a fair shake out of 
the system and that the system does what it is designed to do, 
check on work authorizations.
    Ms. Lofgren. I see my time has expired. Mr. Chairman, thank 
you for yielding to me.
    Mr. Gallegly. I thank the gentlelady for being conscious of 
the light. She used to do that to me. [Laughter.]
    At this time, I would yield to my friend from Texas, Louie 
Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    You know, one of the things that really has helped has 
been, as employers have signed on to use E-Verify--and 
obviously, you have talked about some of the strengths and 
weaknesses. But there seems to be a continuing lack of 
knowledge in the public sector about E-Verify, and it seems 
like awareness and outreach seem to be the Obama 
administration's approach to getting people to sign on. And I 
have concerns about that.
    What plans specifically does this Administration have for 
pushing people to utilize E-Verify so that we can have people 
legally here in jobs that should be used by Americans without 
regard to race, creed, color, or national origin, any of that, 
but just that they are legally here? Hopefully there is more 
than just hoping people notice it on the news and decide, oh, 
that sounds like a good thing.
    Ms. Bertucci. Sir, at this time, we are using outreach to 
get to E-Verify.
    Mr. Gohmert. And it is a lovely word, but what does that 
mean? ``Outreach''? Somebody stuck out their arm over at the--
--
    Ms. Bertucci. No. No, sir. We have had 400 different events 
that we--we do webinars. We reach out to the HR communities, 
the large associations, national conferences. With the Small 
Business Administration, we are going throughout the country in 
different regions. We have done a number of things in the State 
of Florida, for instance. But we are reaching out to the larger 
conglomerates or groups or organizations that represent various 
sectors to include even the agriculture sector of the economy. 
So we are doing that kind of outreach.
    Having said that, we agree with you. We did have an 
evaluation, an independent evaluation, of the nonuse of the 
system trying to figure out what we could do better. And most 
of those people said they are not using it. It was 500 
participants in that survey. Most of them did say they are not 
using it because they were never even aware of it. So we have 
invested in a marketing campaign to try to get certain segments 
of the economy in high population areas and so on. But that is 
the kind of outreach we are doing. We are, in fact, out there 
on the road and offering it in that way.
    Mr. Gohmert. And that sounds nice. And I know if you have 
got 400 of these seminars, webinars planned, that will be 
helpful, but from my perspective in the last 2 years, I have 
noticed that if it is things that are really important to this 
Administration, whether it is Obamacare, whether it is cap and 
trade, whatever it is, there seems to be a whole lot of other 
things this Administration does, whether it is carrots or 
sticks, some might say the Chicago way of approaching getting 
more people on board.
    And I am just wondering if this is really that--I get the 
impression from your written testimony--I was here late, but 
from your written testimony, you see that is as a very 
effective tool. I do too. But it just seems like if the 
Administration itself were really on board, there would be some 
carrots and sticks to drive employers to this so that we have 
people legally here that are actually in those jobs in this 
time of high unemployment and it takes care of a lot of other 
problems we have from people illegally here taking jobs away 
from Americans, people that are supposed to be here.
    Has there been any discussion with the White House about an 
approach that would provide real carrot and sticks instead of 
just the awareness program?
    Ms. Bertucci. Not at this program level. The Secretary has 
said that she is absolutely supportive of this program and 
wants to build a culture of compliance with employers.
    Mr. Gohmert. But you understand.
    Ms. Bertucci. I understand.
    Mr. Gohmert. I mean, I have been here 6 years and I have 
picked up on--unlike when I was on the bench, people said what 
they meant, a lot of times when people say, yes, we are having 
meetings about it, it means this is going nowhere. And so I 
would encourage you, as my time is running out, please push and 
insist for more than just awareness campaigns. I mean, the Bush 
campaign had awareness campaigns. The President was very vocal 
in supporting it. But still, we got too many employers that 
have never heard of it and are not driven to go there.
    But I thank you for your time.
    Ms. Bertucci. Thank you, sir.
    Mr. Gohmert. I yield back.
    Mr. Gallegly. The gentleman, the full Committee Ranking 
Member, Mr. Conyers?
    Mr. Conyers. Thank you, Mr. Chairman.
    I want to commend Ms. Bertucci for her candor in conceding 
that this is still in the developmental stage and that there 
are things we have got to fix.
    And I wanted to commend Mr. Stana for talking about 
employer complicity in the immigrant labor getting around 
hiding the fact that they are immigrant labor. And I thank you 
for that part of our discussion.
    With Judge Gohmert, I agree with you. I think that the 
Administration may not be as fully behind this as their press 
releases might say.
    Mr. Gohmert. Would the gentleman yield momentarily? And I 
am not meaning to pick on this Administration because it is 
following up E-Verify from the last one, and I would 
acknowledge that as well.
    Mr. Conyers. But let's face it. Out of the first hearing on 
this subject and even this one, would it be unfair for 
impartial witnesses to come to the conclusion that a number of 
us here on the Committee have that E-Verify just isn't right 
now ready for prime time? I mean, how on earth can we talk 
about the Administration making this mandatory on every 
employer in the United States of America and we haven't any 
evidence of how it is really working? That is what you have 
told us here, Ms. Bertucci, this morning.
    Why don't we slow down a bit and get some actual working 
evidence or get some more rigorous proof that this is working?
    I liked the slide show this morning. I couldn't see 
anything because I don't have my glasses on. But I guess it was 
very impressive. People were nodding and so forth.
    But look, with all the things we have to do, what is the 
big rush? Now, between both you experts, nobody has talked 
about the reform that is necessary in addition to the 
enforcement. You keep talking enforcement, enforcement, 
enforcement.
    Have you ever heard of the labor movement's comprehensive 
immigration reform package that they put out in April 2009? Can 
I send it down for you to take a look at it?
    Ms. Bertucci. Sure.
    Mr. Conyers. Okay. Take it down.
    And if you say you haven't, I won't be surprised and I 
won't hold it against you.
    Neither of you mentioned anything about the reform part 
that I have been harping on all morning here. Don't you see 
that just enforcement alone, even if it were flawless--let's 
assume E-Verify worked. It still wouldn't change anything. So 
what is so complex about that? What do you have say about that, 
Stana?
    Mr. Stana. Well, I would say this. The subject of our 
report was the E-Verify system, what is working, what is not. 
And I guess our answer would be there is some good news and 
there is some not-so-good news. This is a tool that employers 
can use, obviously, to determine whether the employer or the 
employee and they themselves, by extension, are in compliance 
with immigration law.
    Now, the extent that you make that mandatory for all 
employees, or for certain sectors of the economy or a certain 
business size, that is a public policy decision. That is not 
really our decision to make. What we are trying to do, I think, 
is to give you some information and analysis that will help you 
make that decision.
    Mr. Conyers. And we are grateful for that, and I am glad 
that you didn't come here this morning to tell us that we ought 
to make it mandatory. I am glad to hear it.
    Now, Chairman Gallegly himself, because of what happened 
with the other body, isn't that thrilled with--I mean, they 
didn't fix it in the right way. We have still got our work cut 
out for him, and I appreciate him pointing that out as well.
    Well, my time is up. Thanks a lot.
    Mr. Gallegly. I thank the gentleman.
    Mr. Ross?
    Mr. Ross. Thank you, Mr. Chairman.
    Ms. Bertucci, I am from Polk County, Florida which, growing 
up there, was known as the citrus capital of the world, and 
being very cognizant of that, I understand the labor needs that 
we have there. In fact, we have to rely significantly on 
immigrant labor. But we also find with some of our growers and 
our harvesters and other producers in that industry that 
Government programs like the H2A program with an adverse wage 
rate is a disincentive to hire through an H2A program or any 
other Government program.
    And now, as we look at the E-Verify program--and you 
mentioned earlier that you had made some strides, I guess, in 
the State of Florida with E-Verify. Could you just tell me what 
you meant by that?
    Ms. Bertucci. I was responding to outreach. We have gone 
into various States to outreach to those communities. That is 
what I was talking about.
    Mr. Ross. Have you seen an expansion of the use of E-Verify 
in the State of Florida?
    Ms. Bertucci. Yes.
    Mr. Ross. Significantly?
    Ms. Bertucci. I cannot--yes, we have but I don't know as 
significant as compared to other States.
    Mr. Ross. I am a strong proponent of E-Verify, and I think 
it is something that we ought to enhance, expand, and use more 
efficiently. But again, when I look back at my growers and my 
harvesters, I ask the question, what incentive--and I think 
this is what Judge Gohmert was talking about--what incentive is 
there for an employer? Is there a safe harbor that when they 
knowingly--or unknowingly hire somebody who is not appropriate, 
is there a safe harbor to prevent him from immunity?
    Ms. Bertucci. Well, without getting into the criminal 
prosecution area because I am not a lawyer and I am not on the 
ICE side of the house, having said that, I believe as the 
statute is written, it allows some recognition of the fact that 
the employer is trying to do the right thing by participating 
in the program. You know, obviously, if there is a really bad 
actor or an egregious employer that for some reason is breaking 
the law, I would assume that a prosecution and/or investigator 
would look at that.
    Having said that, the presumption is the employer is trying 
to do the right thing by participating in this program, and 
that is always our assumption going in on the voluntary 
program.
    Mr. Ross. And I think anything that we can do to 
incentivize their participation is going to be good.
    Ms. Bertucci. Yes, and it's a tool. It is a tool for them 
to help comply with the law.
    Mr. Ross. Exactly.
    Now, Mr. Stana, you commented in your report page 6 that 
there are limited resources being put toward enforcement of 
employer compliance. What additional resources would you say 
that DHS may need in order to accomplish the adequate 
enforcement?
    Mr. Stana. You know, I don't have a figure for you. I know 
this has been a longstanding problem with the old I-9 process 
as well. I think prior immigration reform legislation put the 
increases to ICE in the thousands, not in the tens or hundreds.
    I would like to make one comment on what Ms. Bertucci said 
about not being a safe harbor because I think it is an 
important point.
    Mr. Ross. Yes, sir.
    Mr. Stana. Employers should not read participation in E-
Verify as inoculating themselves.
    Mr. Ross. Right.
    Mr. Stana. What E-Verify does is it creates a record that 
they submitted a name and they got a response. They had to look 
at a photo, through the matching tool and they said that the 
person was who was in front of them. So it creates a record. If 
there is any worksite action, you know, they may get some 
accommodation because they are a voluntary participant, but 
they are by no means inoculated if the record shows that this 
person had a good idea, by virtue of the information that E-
Verify provided, that the person before them was work-
authorized or not. And that gets to the point that I raised 
with Ranking Member Conyers that all too often employers have 
been found to be complicit in these things.
    We went to Colorado, North Carolina, and Arizona and talked 
with workers and with business owners on their experience with 
this, and we heard the same thing, that it is a tool, it has 
some flaws, it had some really good things, and they liked it 
for various reasons. But there are definitely mixed views on 
it.
    Mr. Ross. Going back to the additional resources that you 
referenced in your report, have you made any requests on this 
Administration for those resources?
    Mr. Stana. You mean, how many more it would take?
    Mr. Ross. Yes. How many more it would take or what 
additional resources? When you referenced that you have limited 
authority to impose penalties, that you would need additional 
resources in order to achieve the adequate enforcement, have 
you made any requests on the current Administration for 
additional resources, whatever those----
    Mr. Stana. No. Being from GAO, that wouldn't be in our 
bailiwick. That would be up to ICE and, by extension, DHS to 
ask for those resources.
    Mr. Ross. Would you have any recommendation as to what 
those resources would be or should be to additionally allow 
them to do their enforcement?
    Mr. Stana. You know, we would have to--actually that is the 
Administration's responsibility, to identify the resources they 
need, not us.
    Mr. Ross. But you acknowledge that they don't have adequate 
resources.
    Mr. Stana. They don't have the resources now to enforce 
the----
    Mr. Ross. Fulfill their enforcement obligations.
    Mr. Stana [continuing]. To enforce the I-9 system, let 
alone the E-Verify system.
    Mr. Ross. Thank you. I yield back.
    Mr. Gallegly. Mr. Pierluisi?
    Mr. Pierluisi. Thank you, Mr. Chairman.
    Sitting here today, I have to admit that I am troubled. I 
am troubled about the possibility of expanding or, even worse, 
making mandatory this E-Verify program, and I will explain why. 
It is simple.
    I have two concerns. The first one, what are we doing with 
the 8 million estimated undocumented workers out there? Does 
anybody think that just by expanding this that these workers 
will disappear? All of them want to make a living and you 
cannot blame them for that. And they will find a way one way or 
the other. There is an underground economy, and we don't want 
to spur it or to encourage it more than it already is existing. 
And the problem with expanding E-Verify without also dealing 
with the immigration laws as a whole on a comprehensive basis 
is that this is like a band aid. It is one thing to have a 
voluntary program like this to allow employers to--to assist 
employers in verifying the documents of their workers. That is 
fine. But it is another to simply pretend that by making it 
mandatory, all of sudden 8 million people out there working 
will disappear as if this were magic.
    I noticed that in the statement made by Director Bertucci, 
she says that she hopes that any changes to the E-Verify 
program--I quote--will be considered as a part of comprehensive 
reform to our immigration laws. So the first question I have 
is, do you agree with the premise of my concern that just 
dealing with this on its own is not going to solve the 
immigration issue our Nation faces?
    Ms. Bertucci. Sir, I think that is the public policy 
decision that I would defer to the Department to respond to.
    Mr. Pierluisi. Is it your hope that we deal with this issue 
on a comprehensive basis?
    Ms. Bertucci. I don't get to hope in this job. [Laughter.]
    Mr. Pierluisi. I see. But did I quote your statement 
correctly?
    Ms. Bertucci. The Administration stands behind 
comprehensive immigration reform.
    Mr. Pierluisi. I like hearing that. Okay.
    Another concern I have is that by your own admission there 
are errors. Errors are being made as this program is 
implemented. There has been misuse by the employers as this 
program happens. At one point today, I think you even said that 
you have been--not you personally, but the center has been 
clumsy in trying to monitor the employers' compliance. And I 
even noticed that the Chairman is not happy with the compliance 
efforts on your part.
    And let me add one that hasn't been talked about here which 
is discrimination. I saw that there is a 20 times higher chance 
to have an error when the individual involved is foreign-born. 
If somebody comes from abroad--and I got this figure from--let 
me tell you this figure because I see that your--Westat is my 
source for this. It has done a study and they determined that 
there is a 20 times higher chance that if you are born abroad, 
then there could be a problem. You could be legally in this 
country. You could be even documented. And the Ranking Member 
of this Subcommittee already pointed out to a particular case.
    So that is my second question. What are you doing? Are you 
ready like our Ranking Member of the full Committee said? Are 
you ready to really expand this like some people are proposing?
    Ms. Bertucci. Sir, first of all, the system can handle up 
to 60 million queries. We know that. We know today--during last 
year we handled 16 million, and our accuracy rate in that 
Westat study was 96 percent.
    Having said that, it also acknowledges what GAO found, and 
we have undertaken a study. And what the name reference had to 
do with is the type of things that Mr. Stana talked about. In 
the systems that are controlled by DHS to a great extent if 
their records--not only DHS--well, other partners, but mostly 
DHS, I should say, CBP, us, and so on. It depends on how names 
are entered into records over a long period of time. That is 
when we may have possible problems with names.
    Having said that, on contacting us, we are responding to 
those now. Through the improvements we have made, people aren't 
going and being pushed off to, say, the Social Security 
Administration where they have to show up. A great number of 
the people, if it is a DHS record mismatch, are coming to us. 
We are responding to those within 24 hours, and we are working 
with that person. No one--no one--one person being fired 
wrongly is one too many people. No one is being fired under 
those circumstances. We work with the people, and we will 
gather the information.
    It is difficult. We are working with old systems. We 
acknowledge that, and those are some of the things we want to 
do to improve and make sure that we are building up our status 
verifiers. We have a group sitting in Buffalo. We are going to 
have another group in Nebraska. We have them in Los Angeles and 
New York. And their job is working everyday with people to 
ensure that the records match, you know, if there was that kind 
of a mismatch with names. And that is what is happening. And we 
have a study. Another study we will get by the end of this 
fiscal year on essentially those kinds of things, the 
difficulties with foreign names, foreign-born names, so that we 
can see what we can do to improve the system.
    Mr. Pierluisi. My time is up.
    Mr. Gallegly. Thank you very much, Mr. Pierluisi.
    Ted Poe?
    Mr. Poe. Thank you, Mr. Chairman.
    Thank you for being here, both of you.
    I am a believer, based on my background as a judge and the 
rule of law, and America is the most generous Nation on earth 
as far as allowing people to come here. We have an immigration 
policy that is very liberal in coming here the right way. I 
believe basically, though, you come here legally or you don't 
come. We all know the reasons that people say why they come 
here. I do not believe everybody that comes into the United 
States illegally is coming here to do work Americans won't do. 
I think that is just a fiction. So if we are going to follow 
the rules and follow the law, then people who are here 
illegally need to understand, whatever the political correct 
term to call those folks, they are still here illegally, and 
they need to come the right way.
    E-Verify is a way to make sure that employers are hiring 
folks that are legally here. It is a frustration for many 
employers to make sure that they want to hire people that are 
here legally. And I think the E-Verify is a way that helps out 
employers, but also follows the rule of law.
    Ms. Bertucci, I was in Houston last week and talking to 
some of your ICE agents about some of the issues that they face 
with the tremendous influx of people and problems that they 
have, and I just want to thank you for the work they are doing. 
I admire the work that the agency and the division--district in 
the Houston area is doing a good job.
    How long has E-Verify been around?
    Ms. Bertucci. The pilot began in 1997. The pilot began way 
back as the basic pilot in 1997.
    Mr. Poe. 14 years. Is that right?
    Ms. Bertucci. Yes.
    Mr. Poe. 11 percent of the businesses use E-Verify. After 
14 years, we still only have 11 percent. Can you help me out 
why that is? Do you know? I mean, why are so few--I mean, that 
is 11 percent after so many years. It is going to take us--if 
we keep adding 10 percent in that length of time, it will be 
150 years before we have 100 percent. So why have so many been 
reluctant to use it?
    Ms. Bertucci. I believe that the program's growth has been 
in the most recent years. When the program began, there were 
obvious challenges on the information technology front. We are 
growing each and every year. We more than doubled during the 
last couple fiscal years, and the program is voluntary. So that 
is how the growth has been. But it has been a steady pace; on 
average 1,300 new employers sign MOU's with us every single 
week. So we keep on growing the program.
    Mr. Poe. How many false positives do you get a year?
    Ms. Bertucci. False positives.
    Mr. Poe. In other words, the system checks out so and so, 
and it is not correct. And so this person may be an American 
citizen, as Mr. Pierluisi was talking about earlier.
    Ms. Bertucci. This is an opportunity to discuss the most 
often talked about statistic in this program when people say we 
have a 54 percent error. That statistic came out of the Westat 
2009 report. That same report said the system is overall 
correct, accurate 96 percent of the time. That report looked at 
a smaller segment of the population in the system. The Westat 
model found a 6.2 percent illegal or--I am sorry--unauthorized 
workforce in the country. It was very extensive statistics. My 
husband is the math major, not me.
    But having said that, they looked at that model and they 
applied that model and they said we should have found 6.2 
percent people as unauthorized to work. We found 2.9 percent. 
That is where they believe--but they did not look at the actual 
records. They just assessed that figure based on a model.
    Mr. Poe. So your opinion--it is 2.9 percent--is a fair 
statement or not?
    Ms. Bertucci. No. I don't know that we have a good number 
on false accurate. The record from Westat was that that error 
rate at that time related to a total of 4 percent run in 2009.
    But since then, we have made improvements. And our most 
recent 2010 numbers--and as Mr. Stana said, it may be an 
anomaly because we have had the Federal contractors come on. 
But Mr. Stana has recognized 5.4 percent decrease in our 
tentative nonconfirmations, and we are now at a 1.7 percent 
initial mismatch. We then find .3 percent of those people 
resolved, authorized to work, and the other 1.4 percent found 
unauthorized.
    Mr. Poe. Last question, if I may, Mr. Chairman. Excuse me. 
I am running out of time.
    Ms. Bertucci. Okay.
    Mr. Poe. You are a potential employee. You go to business 
and it comes up E-Verify is a false positive. It says you are 
here illegally. What are my options as that worker?
    Ms. Bertucci. As the worker?
    Mr. Poe. Yes. It comes up a false positive saying that I am 
illegally in the country, and I am not.
    Ms. Bertucci. I think Ms. Lotspeich--you may have not been 
here. So I apologize.
    You have the right to contest that tentative 
nonconfirmation. At that point, that case is held in abeyance. 
Within 8 Federal work days you either visit the Social Security 
Administration or call us. We work with you and we will hold 
that case open, if we are working with you, until such time we 
resolve that data mismatch.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Poe. Yes.
    Ms. Lofgren. Because the GAO report actually indicates 
theoretically that is what is supposed to happen, but there are 
plenty of times when the employee is never notified, in 
violation of what is supposed to happen. And they can't fix it 
and they get fired even though they are an American. Isn't that 
correct, Mr. Stana?
    Mr. Stana. Yes. If I can straighten out the numbers a 
little bit because I think there are a lot of numbers floating 
around here.
    Of the 100 percent of people who go through the system, 
let's say 97.5 percent, to round it out, are deemed work-
authorized instantaneously. Of the ones who are not authorized 
instantaneously, about .3 percent of them get it resolved 
within 48 hours or so. So you are really dealing with maybe 2.3 
to 2 percent of people who have this problem. It is a problem.
    Now, getting to your earlier question, you asked how many 
false positives there are. These are false negatives that we 
are talking about, people who are inappropriately told that 
they are not authorized to work and they may be. And that is 
the issue you are talking about.
    The false positives are at about 3-3.5 percent according to 
Westat, which means an individual is not authorized to work but 
somehow the system, either through identity theft or employer 
compliance with the individual getting a job inappropriately, 
identifies the individual as authorized to work.
    Now, when you throw around all these statistics, it is easy 
to get lost in the numbers. But when you start matching the 
number sets up--and it is hard to do because it is not exactly 
the same point in time and it is not exactly the same data 
set--but you start getting to the point where getting much 
further down on the false negatives is going to be very 
difficult to do. It is important to do it because you have 
people like you talked about, Ms. Lofgren, who are getting a 
bad shake out of the system. So you don't want to lose that 
intent, but it is getting tough because you were ratcheting 
this down into the below 2 percent range.
    The false positives--I don't know if we are ever going to 
get totally on top of that without having a better way to 
address the resource and enforcement question. It is not a 
matter of when or how. That is your call in what conjunction 
you do it. But that is the landscape here.
    Mr. Gallegly. I thank the witnesses today. This is going to 
be an issue that we are going to be dealing with a great deal 
in this Congress.
    I would just like to close by trying to respond to my good 
friend--and he truly is my good friend and my neighbor for many 
years--the Ranking Member, Mr. Conyers, and his statement ``why 
rush?"
    I would just like to answer that by saying that this issue 
didn't start yesterday or day before yesterday. In fact, after 
IRCA in 1986, we thought this problem was going to be solved 
because we had a one-time amnesty--I guess that was the 1986 
version of comprehensive immigration reform--and that this 
problem would go away because we would have an enforcement 
mechanism. We never enforced.
    Then we fast forward to 1996. That is still 14 years ago, 
and that is when we came up with this new concept of e-
verification. Now, 14 years have passed, and I have been 
working on it for 14 years. So I don't think that I have really 
been rushing to it. But if there was ever a need to do 
something quickly when we have 14 million Americans that aren't 
working today, I think that they deserve to be put at the front 
of the line.
    And I hope we can all work together. John, you are my 
friend and I know we can work together and maybe differ without 
being personal about it. I respect your friendship.
    And with that, we will adjourn the meeting. Thank you.
    [Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record

            Letter from Lynn Shotwell, Executive Director, 
              American Council on International Personnel






       Material submitted by the Migration Policy Institute (MPI)




                                 
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