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



                               BEFORE THE

                            SUBCOMMITTEE ON

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION


                             APRIL 18, 2012


                           Serial No. 112-105


         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
    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 R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina

           Richard Hertling, Staff Director and Chief 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 R. PIERLUISI, Puerto Rico

                     George Fishman, Chief Counsel

                   David Shahoulian, Minority Counsel
                            C O N T E N T S


                             APRIL 18, 2012


                           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.............................     2
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     4


Ronald Mortensen, Ph.D., U.S. Foreign Service Officer, Retired, 
  Center for Immigration Studies
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Jennifer Andrushko, Ogden, UT
  Oral Testimony.................................................    48
  Prepared Statement.............................................    50
Bert Lemkes, Co-Owner, Van Wingerden International, Inc.
  Oral Testimony.................................................    54
  Prepared Statement.............................................    57


Prepared Statement of Waldemar Rodriguez, Deputy Assistant 
  Director, Transnational Crime and Public Safety Division, 
  Homeland Security Investigations, U.S. Immigration and Customs 
  Enforcement, U.S. Department of Homeland Security, 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
Material submitted by the Honorable Elton Gallegly, a 
  Representative in Congress from the State of California, and 
  Chairman, Subcommittee on Immigration Policy and Enforcement
    Prepared Statement of Barbara Jordan, Chair, U.S. Commission 
      on Immigration Reform, March 30, 1995......................    18
    Letter from the Society for Human Resource Management (SHRM), 
      and the American Council on International Personnel........    27
    News Article titled ``Rise In Child Identity Theft Prompts 
      Push For Solutions''.......................................    30
News Releases by the National Restaurant Association, submitted 
  by the Honorable Zoe Lofgren, a Representative in Congress from 
  the State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................    69

               Material Submitted for the Hearing Record

Prepared Statement of Emily Tulli, Policy Attorney, National 
  Immigration Law Center.........................................    75

                                CAN HELP


                       WEDNESDAY, APRIL 18, 2012

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

    The Subcommittee met, pursuant to call, at 11:20 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Elton 
Gallegly (Chairman of the Subcommittee) presiding.
    Present: Representatives Gallegly, Smith, King, Gowdy, 
Lofgren, and Jackson Lee.
    Staff Present: (Majority) Andrea Loving, Counsel; Marian 
White, Clerk; and (Minority) Gary Merson, Counsel.
    Mr. Gallegly. Call the Subcommittee to order. Today's 
oversight hearing will examine the use of fraudulent documents 
by illegal immigrants who are seeking employment and how E-
Verify can help to eliminate a problem that negatively affects 
millions of Americans and legal immigrants who are unemployed.
    However, before discussing my views on this issue, I want 
to explain why one of the witnesses initially invited to the 
hearing will not be testifying this morning. When my staff 
contacted ICE over 2 weeks ago, we requested that an ICE 
official testify about the specific issue of how pervasive 
fraudulent documents are in the context of employment 
authorization. We asked that ICE provide an overview of the 
issue as well as relevant statistics and data. Unfortunately, 
the testimony ICE submitted was unresponsive to that request. 
Therefore, I disinvited ICE as a witness. I will leave to 
others to speculate as to why ICE's testimony was unresponsive.
    Now I will move to the topic of today's hearing. If one 
types the words ``fake identification documents'' into an 
Internet search engine, you will be inundated with web sites 
that specialize in producing fake IDs. You will even get 
results for You-Tube videos featuring step-by-step instructions 
on how to make fake IDs.
    The Immigration Reform and Control Act of 1986 put in place 
the weak standard of employment eligibility verification. It 
states that an identification document simply has to appear 
genuinely on its face. As a result of that low standard, the ID 
black market is no longer used overwhelmingly simply because of 
the underage teenagers who want to get fake ID for the purpose 
of maybe attending a bar on Friday night, maybe sometimes on 
Saturday night.
    Now, fake IDs are a million dollar business that helps 
illegal immigrants secure jobs that should be reserved for 
Americans and legal residents. Today's hearing highlights how 
pervasive the use of fraudulent IDs are in employment 
authorization and how E-Verify can combat that use. E-Verify 
allows employers to check the work eligibility to new hires by 
running the employee's Social Security number or alien 
identification number against Department of Homeland Security 
and Social Security records.
    Recent polling shows that 82 percent of likely voters 
support requiring employees or employers to use E-Verify, and 
Americans are right to support a program that makes it much 
more difficult to use fake identification to get a job. Under 
E-Verify the order to be confirmed as work authorized, the 
Social Security number, name, and date of birth must match the 
information on the file with the SSA and DHS. If there is no 
match, then an individual is not confirmed to be work eligible.
    Unfortunately, for most employers E-Verify is a voluntary 
program. As it currently operates, E-Verify is susceptible to 
identity theft. That is why H.R. 2885, the Legal Workforce Act, 
which Mr. Smith and I introduced, contains several measures 
that will help close the identity theft loophole and further 
prevent the use of fraudulent documents in the hiring process.
    I look forward to the testimony of the witnesses today. I 
yield back my time and would yield to the gentlelady, the 
Ranking Member from California, Ms. Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman. Identity theft is a 
significant and growing problem in the United States. The 
question before us is not whether to deal with the problem but 
how to deal with it. The Chairman proposes that we mandate the 
use of E-Verify without otherwise reforming our immigration 
laws, but that will only make matters worse. Rather than 
prevent identity theft, an expansion of E-Verify without more 
will aggravate the problem while costing taxpayers billions, 
harming agriculture and other industries.
    It is important that we are mindful of how we got here. It 
might surprise some of you to hear this, but Congress played a 
significant role in actually creating this problem, and it is 
for us to learn from that history.
    In 1986, in an attempt to restrict illegal immigration, 
Congress enacted the new employment restrictions in IRCA and 
these provisions actually for the first time made it illegal to 
employ undocumented immigrants. It also created the need for 
workers to show employers identity and work authorization 
    Before IRCA, businesses were not required to check, and 
document fraud was not therefore a problem, but IRCA changed 
that, creating a new market for fake Social Security cards and 
other documents that could be used to complete the I-9 forms. 
As we now know, the biggest problem with IRCA was that it 
cracked down on unauthorized employment without ensuring that 
agriculture and other industries had access to authorized 
labor. Basically it created penalties to address a symptom of a 
broken immigration system, but it did nothing to actually fix 
the immigration problem itself. In doing so, IRCA created a 
market for false documents and ensured that such a market would 
grow with the Nation's economy.
    In 1996, Congress then doubled down with the Illegal 
Immigration Reform and Immigrant Responsibility Act. Among 
other things, the bill created the basic pilot program now 
known as E-Verify. The authors said it would prevent document 
fraud because unlike the I-9 system created by IRCA, E-Verify 
could not be fooled by fake Social Security numbers. But once 
again, this law did nothing to provide for the legal flow of 
workers needed by our economy. So employers and workers began 
to seek ways to obtain information that could fool E-Verify. 
Thus, rather than drive down document fraud, E-Verify created a 
new and much worse problem, identity theft, for the purpose of 
obtaining employment.
    The bill's author said it would stop illegal immigration, 
but undocumented immigrants came in even larger numbers. And 
the problems associated with unauthorized employment only grew. 
As E-Verify use increased, so did identity theft. That is 
because E-Verify cannot catch identity theft. In one DHS-
commissioned study, 54 percent of the undocumented workers run 
through the system were confirmed as work authorized by E-
Verify. Those were the ones using other people's identities. In 
Arizona, where E-Verify is mandated by State law, employers 
have helped to procure false identities for their unauthorized 
    This is the history that we have to contend with. Those who 
created E-Verify are now asking us to ignore that history and 
again trust that their enforcement-only solutions will work. 
Previous attempts to tighten the enforcement screws without 
fixing the system have led to more damaging results, but this 
time they promise things will be different. This time they say 
they have a bill that will stop identity theft, but we should 
all know better.
    Our system is fundamentally broken. For decades it has 
failed to provide legal pathways for American industries like 
agriculture to meet their labor needs. If we now tighten the 
enforcement screws yet again without fixing the system, we are 
just going to drive a new and more pernicious form of fraud. 
That is the lesson we must heed from history.
    The Chairman's bill may also drive off the books employment 
and closure of American businesses. According to a 2010 GAO 
report, employers seeking to get around E-Verify are 
increasingly misclassifying workers as independent contractors 
and moving them off the books entirely.
    The Chairman's bill does nothing to prevent such 
arrangements from accelerating, even though they lead to lower 
wages, fewer worker protections, and significant reductions in 
tax revenues. And let's not forget that the CBO estimates that 
mandatory E-Verify would cost $17.3 billion in lost tax 
revenues over 10 years as employers and employees move to the 
underground economy.
    At the same time, Chairman Smith's bill does nothing to 
prevent economic damage to the industries that rely most on 
undocumented workers. After all the hearings we have had on 
this issue, this Congress, this Subcommittee should by now know 
that the Chairman's bill would hurt American farmers. Mandatory 
E-Verify without reform of the immigration system would mean 
more American farms going under, a less secure America, and the 
offshoring of jobs, including upstream and downstream American 
jobs supported by agriculture.
    Make no mistake about it, one-sided solutions such as the 
Chairman's mandatory E-Verify proposal are a big part of how we 
got into this mess, and history tells us they will only make 
things worse.
    I yield back, Mr. Chairman.
    Mr. Gallegly. The time of the gentlelady has expired. The 
gentleman from Texas, the Chairman of the Judiciary Committee, 
Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    The Immigration Nationality Act prohibits the hiring of 
individuals who are not authorized to work in the United 
States. And it requires employers to check the immigration 
status of an employee and make sure that the identification 
document submitted by the employee ``reasonably appears on its 
face to be genuine.''
    That requirement was put in place by the Immigration Reform 
and Control Act of 1986. Unfortunately, the underground market 
for fraudulent identification documents grew extensively after 
the enactment of that bill.
    Fake documents, which can be obtained cheaply and are 
produced by the millions, have made a mockery of these 
identification requirements.
    Dishonest employees simply hand employers fake documents 
that ``reasonably appear to be genuine,'' and an honest 
employer has no recourse other than to accept them. And many 
dishonest employers actually welcome employees who submit 
counterfeit identification documents so they can pay lower 
wages or otherwise exploit illegal immigrant employees. 
Sometimes these dishonest employers themselves actually obtain 
the documents for the illegal workers.
    In response, Senator Alan Simpson and I drafted the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, 
which contains a pilot program to provide employers with an 
accurate and easy way to determine employment eligibility.
    The basic pilot program, now known as E-Verify, is 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. As this Subcommittee has heard in testimony 
many times, E-Verify is free, quick, and easy to use.
    E-Verify can be vulnerable to identity theft. If an 
employee provides an employer with a stolen Social Security 
number and matching identification number, E-Verify will 
determine that the Social Security number is one that is work-
    USCIS has taken steps to help close the ID theft loophole. 
For instance, they have incorporated the photo matching tool. 
This allows an employer to view a picture of the employee from 
a green card, an employment authorization document or a 
passport to determine that the employee is, in fact, the person 
to whom this Social Security number or alien identification 
number was issued.
    H.R. 2885, the ``Legal Workforce Act,'' a bipartisan bill 
that was approved by the Judiciary Committee last September, 
gives USCIS and Social Security Administration additional tools 
to help recognize and prevent identity theft.
    For instance, the bill requires DHS to allow individuals to 
``lock'' their own Social Security number so that it cannot be 
used by impostors to verify work eligibility. It also requires 
USCIS to ``lock'' a Social Security number that shows a pattern 
of unusual multiple use. And it imposes significant criminal 
penalties on employers and employees who engage in or aid 
identity theft.
    In addition, H.R. 2885 requires individuals who have likely 
been victims of identity theft for work authorization purposes 
to be notified of that likelihood so they can then take steps 
to prevent further illegal use of their identity.
    As long as the IRCA standard whether an identification 
document ``reasonably appears on its face to be genuine'' is 
the only requirement for employers, illegal immigrants will be 
able to easily cheat the system and get U.S. jobs.
    With today's technology, it makes no sense to use a paper-
based, error-prone system when a successful web-based option is 
available. It is time to bring our I-9 system into the 21st 
century. American jobs and identities could easily be protected 
by simply requiring all employers to use E-Verify and by 
improving E-Verify to help close the identity theft loophole.
    Mr. Chairman, before I close, I want to add to your 
comments about my disappointment in the ICE witness not 
appearing today. That ICE witness was disinvited intentionally 
because the testimony was completely nonresponsive, and that 
was a disappointment because it was clear that the 
Administration or someone higher up in the Administration had 
censored the testimony which might well have been supportive of 
E-Verify. That is not the first time we have seen that on this 
Judiciary Committee, and in fact I don't think it is an 
exaggeration to say that the Administration has actually shown 
a pattern of behavior of either refusing to cooperate or 
refusing to give us, the representatives of the American 
people, information that we need to do our jobs.
    Last August, for example, we requested from ICE a list of 
individuals that the Administration had refused to detain, and 
we wanted to find out what other crimes these individuals had 
committed. We were told initially by ICE that the list existed 
and that they would give it to us. Suddenly we had a reversal 
of that. Again, someone else in the Administration must have 
censored their willingness to cooperate, and we had to subpoena 
the list, and finally we did obtain it. We have seen the same 
kind of refusal to cooperate, and frankly dishonesty, when it 
comes to Fast and Furious, when it comes to perhaps then 
Solicitor General Kagan's participation in the debate in regard 
to the health care bill.
    So this is nothing new. But we are simply not going to 
allow an Administration witness to continue to testify when 
their testimony, in fact, has been nonresponsive.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Smith. Thank you, Mr. Chairman. I will yield back. 
Unless, if we have time, I would be happy to yield to the 
gentlewoman from California.
    Ms. Lofgren. I would just note--first, I would ask 
unanimous consent to put the ICE testimony into the record.
    Mr. Smith. I don't have any objection to that, but I am 
very happy that I said what I did about the testimony.
    Ms. Lofgren. Mr. Chairman, if I could have another few 
seconds, I would like to also point out in regard to E-Verify 
that that is supported by 82 percent of the American people. If 
you look at a breakdown of supporters, it is supported by 72 
percent of minorities and 71 or -2 percent of Democrats even. 
Everybody realizes that it is only right to hire individuals 
who are legally able to work in the United States and to make 
sure those jobs go to unemployed Americans, and those who 
oppose E-Verify are really perpetuating a system that leads to 
the high unemployment rates among minorities, and that is very 
    Ms. Lofgren. If the gentleman would yield.
    Mr. Smith. I will be happy to yield.
    Ms. Lofgren. And I ask unanimous consent for an additional 
minute be----
    Mr. Gallegly. Without objection.
    Ms. Lofgren. First, I just think it is important to say 
that if there is censorship here, it is of ICE by this 
Committee. I mean, they were willing to offer testimony that I 
think when people read it will obviously be responsive. And 
finally in terms of public support, all of the opinion polls 
show that 60 to 70 percent of the American people favor 
comprehensive immigration reform as well.
    Mr. Smith. I will reclaim my time.
    Ms. Lofgren. And the Committee has not yet adopted that.
    Mr. Smith. I will reclaim my time because I want to make 
the point again not only is the witness being nonresponsive, 
the gentlewoman from California is being nonresponsive. That is 
not the subject of this day's hearing.
    Ms. Lofgren. I raised it only because you are listing 
public opinion.
    Mr. Smith. I will yield back the balance of my time.
    Mr. Gallegly. Time has expired, and relating to the 
unanimous consent request, I am not going to object, but I do 
want to make a statement. When the gentlelady said that she 
would like to put the statement from ICE into the record under 
unanimous consent, I will not object. However, I want to make 
for the record clearly the statement that she is asking to be 
put into the record, in my opinion, does not reflect what the 
request of this Committee was, and it was a complete spin to 
satisfy someone in the Administration, and it does not 
represent the text of what this hearing was all about, and 
without objection, that incomplete complete document can be 
placed into the record.
    [The information referred to follows:]

    Mr. Gallegly. At this time I have a unanimous consent 
request, and I don't think it will be maybe as controversial, 
and if it is, I will respect anyone's right to object, but I 
ask that we have unanimous consent to have the following 
documents made a part of the record of the hearing: The 
statement of the Honorable Barbara Jordan, a former Member of 
the House Judiciary Committee, who was the chair of the U.S. 
Commission on Immigration Reform. In 1995 she told this 
Subcommittee the current process of employment verification has 
not functioned as the law intended to deter the hiring of 
undocumented aliens. The system may be thwarted easily by--
toward all--easily by fraud. Widespread counterfeiting of 
documents that can be used for verification of identity and 
employment authorizations has been reported since IRCA's 
implementation. Unfortunately, this is still true today.
    Also I would like to have added to the record a joint 
statement of the Society for Human Resource Management and the 
American Council on International Personnel indicating their 
support for the Legal Workforce Act and suggested changes to E-
Verify program.
    And, third, a Huffington Post article entitled Rise in 
Child Identity Theft Prompts Push for Solutions, detailing Miss 
Andrushko's case as well as other cases of misuse of Social 
Security numbers by illegal immigrants.
    Hearing no objection, those items will be placed into the 
record of the hearing.
    [The information referred to follows:]

    Mr. Gallegly. Today we have a very distinguished panel of 
witnesses. Each of the witnesses' written statements will be 
entered into the record in its entirety. I ask that each of you 
make every effort to summarize his or her testimony in 5 
minutes or less. To help, we have the lights down there, and 
when the red light comes on, if you could wrap up your 
comments, and we will make sure that your testimony is made a 
part, the entire, in its entirety.
    Our first witness is Dr. Ronald Mortensen. Dr. Mortensen is 
a retired United States Foreign Service Officer. He has 
published, he has been published by the Center for Immigration 
Studies and writes for examiner.com. He has researched and 
written extensively about employment-related child identity 
theft and was instrumental in the passage of Utah's E-Verify 
requirement. Dr. Mortensen holds a Ph.D. in political science 
from the University of Utah.
    Our second witness is Ms. Jennifer Andrushko. She has 
worked as a small business owner in Utah since 2009. Previously 
she worked as a kindergarten teacher from 2002 to 2006. Ms. 
Andrushko is the mother of a 5-year-old identity theft victim 
and is cosponsor of Defending Our Children's Future. She 
received her Bachelor's Degree from Weber State University in 
Ogden, Utah.
    Our third witness today is Dr. Bert Lemkes, Mr. Lemkes is 
general manager and co-owner of Van Wingerden International, a 
family-owned horticulture business in Mills River, North 
Carolina, which includes 37 acres of climate-controlled 
greenhouses. Prior to this, Mr. Lemkes worked in the various 
horticulture businesses around the world before emigrating to 
the United States in 1987. He became a U.S. citizen in 2001 and 
studied horticulture at the college of, the Horticulture 
College in Utrecht, Netherlands.
    With that, Mr. Mortensen, we will--Dr. Mortensen, we will 
start with you.


    Mr. Mortensen. Thank you. The use of fraudulent documents 
for employment authorization all too often involves the Social 
Security numbers of children. Children's numbers are especially 
valued because they can be used for years without detection. 
Unfortunately, during those years children can suffer serious 
harm. Thus, employment-related document fraud is not a 
victimless crime.
    People obtain children's numbers for employment in a 
variety of ways. Parents use their children's numbers, people 
steal children's Social Security numbers and then sell them, 
and still others randomly make up numbers that end up belonging 
to children. Most often people just attach the child's Social 
Security number to their own name rather than using the child's 
full identity, which includes the full name, date of birth, and 
Social Security number.
    And this Social Security number only identity theft--or, 
this is Social Security number-only identity theft, and 
according to a Social Security official, quote, 98 percent of 
Social Security-related ID theft cases involve people who use 
their own names but invent or steal their numbers. So given the 
prevalence of Social Security number-only identity theft, a 
mandatory E-Verify requirement can serve as a strong child 
protection measure because E-Verify does match the name, date 
of birth, and Social Security number, which prevents an adult 
from using his own name with the child's Social Security number 
for employment purposes.
    Now, it is important to note that when someone simply makes 
up a Social Security number and uses it with his own name, 
there is roughly a 50/50 chance that an adult already--that 
that number already belongs to someone else, either a child or 
an adult. However, even if the randomly generated number has 
not been issued, the Social Security number--the Social 
Security doesn't take it out of the database once it begins to 
be used. Therefore, at a future date, Social Security may 
assign that number to a newborn infant.
    In Utah, based on a 2005 investigation, it was estimated 
that 20,000 Utah children under age 13 were the victims of 
employment-related identity fraud and as many as 50,000 
children under age 18 may have had their Social Security 
numbers used for employment purposes. In addition, Utah's 
Workforce Services identified 1,626 employers paying wages to 
the Social Security numbers of children under 13.
    Most parents didn't even know that their children's 
identities were being used unless they applied for public 
assistance and were notified at that time that the child's 
number may have been compromised, and many of these children 
had their good names destroyed, some had their credit ruined, 
others had people obtaining medical services using their Social 
Security numbers, and still others had arrest records attached 
to their names, and some were even denied critically required 
Medicaid benefits.
    E-Verify is an important tool in the battle against 
employment-related child identity theft because it catches 
Social Security number employment identity theft, and if 
properly administered it will also prevent an adult from using 
a child's birthdate to get it through the system even if he has 
the child's total identity.
    Arizona's experience seems to indicate that the use of E-
Verify can make a contribution toward preventing employment-
related identity theft. Following the enactment of Arizona's 
strong E-Verify requirement in 2007, employment-related 
identity theft has declined by 36 percent. Identity theft cases 
still continue to be reported from thefts that occurred prior 
to the implementation of E-Verify, and unfortunately not all 
employers are complying with the law, which leads to new cases, 
and also the numbers of Arizona children continue to be used in 
other States that do not mandate E-Verify. Therefore, a 
mandatory nationwide E-Verify program with strong employer 
sanctions would protect the futures of American children, both 
the born and the unborn. Ideally, employers would be allowed to 
use E-Verify to check the status of all current employees as 
well as new hires in order to identify individuals who are 
currently using children's Social Security numbers. In 
addition, victims of employment-related identity theft should 
be allowed to sue employers for damages if employers fail to 
comply with the mandatory E-Verify requirement.
    In conclusion, the mandatory use of E-Verify is a child 
protection measure that can play a key role in defending our 
children's future. Thank you.
    [The prepared statement of Mr. Mortensen follows:]
  Prepared Statement of Ronald Mortensen, Ph.D., U.S. Foreign Service 
            Officer, Retired, Center for Immigration Studies


    Mr. Gallegly. Thank you, Dr. Mortensen.
    Ms. Andrushko. Am I pronouncing that correctly?
    Ms. Andrushko. Yes, Andrushko.
    Mr. Gallegly. Thank you.


    Ms. Andrushko. Yes, thank you. Well, thanks for having me 
here. I am really honored to be here. As mentioned, I am the 
mother of a 5-year-old identity theft victim. His Social 
Security number has been used since before his birth by an 
illegal alien for employment purposes, and also I just found 
out 2 weeks ago that it has also been for financial purposes 
and also for medical care.
    The only reason that my husband and I became aware of this 
theft was quite by accident. In November of 2009 my husband 
found himself unemployed in a falling economy, and I had gone 
into the Department of Workforce Services in Utah to apply for 
some food stamp assistance and for Medicaid, as we did not have 
any health insurance at the time because of his unemployment, 
and during our interview to determine our eligibility, we were 
informed that wages were being reported to my then 3-year-old 
Social Security number since 2007. I can't even describe to you 
in 5 minutes or in any time adequately how disturbing that was 
to me to learn that my 3-year-old son's identity was being used 
by someone else where we had done absolutely nothing that would 
compromise his identity.
    Through my own research over the next 2 weeks, I was able 
to ascertain that the employment had started in 2001 when my 
son was born in 2006. The help that a family gets in the case 
of a Social Security number theft of a child is little to 
nonexistent currently. In 2\1/2\ years I have heard nothing, 
absolutely nothing from my local police department. It was 
through my own aggressive, assertive calling of my State and 
local Senators and Representatives which put me in contact with 
one of the chief deputies in the Utah Attorney General's office 
who then gave my information to a prosecutor, Rich Hamp, in 
that office, that we were able to actually do something.
    Two-and-a-half years later the individual has been 
apprehended, booked into a county jail, is in a county jail in 
Utah in the Park City area, and she had an ICE hold on her, 
which was lifted, and then she was released on bail. She was 
also picked up a week later, the same thing happened, out on 
    Because of the prevalence of child identity theft and the 
devastating effects that it can have on a family and a child, I 
have cofounded an organization, as mentioned, called Defending 
Our Children's Future, to raise awareness and to push for 
protection that will not leave our children being the ones 
holding the bag of this problem.
    As I have gone out and spoken to groups and as I have met 
other victims, they all ask me the same question, how can we 
find out if our child is a victim of Social Security number 
theft? My answer, unfortunately, has to be you can't unless you 
are receiving government aid or in the case of our family you 
need to apply for government aid or, as in the case of a family 
in Davis County, Utah, the IRS comes after you and says you are 
making a false tax return, your child is earning income that 
you have not reported, so they can't possibly be your daughter, 
and so you cannot claim them on your tax return as a dependent.
    Another question they ask, how can I prevent this? And I 
say you can't. Well, what can we do to encourage businesses or 
the government to verify that the people who they are hiring 
are not using my child's number for employment? And I mention 
some tools, one of them being E-Verify. E-Verify, with checking 
the date of birth, would not allow an adult to use a child's-
issued Social Security number to work.
    I am also asked the question how on earth was your son 
issued a number that had been in use since 2001 for employment, 
and I have asked Social Security Administration that same 
question, I have asked for an investigation. They absolutely 
refuse to investigate, and they say they claim they have no 
record of it.
    The Vockler family in Utah is in the same situation that we 
are in. Their daughter in 2009, they applied to the same thing 
we did, and their 1-year-old daughter had wages reported for 
several years before her birth also, so this is a huge problem, 
and we need to close these loopholes that are not catching this 
identity theft. It is not fair for our children to fall prey to 
this crime regardless of good intentions. Thank you.
    [The prepared statement of Ms. Andrushko follows:]
          Prepared Statement of Jennifer Andrushko, Ogden, UT


    Mr. Gallegly. Thank you, Ms. Andrushko.
    Mr. Lemkes.


    Mr. Lemkes. Chairman Gallegly, Ranking Member Lofgren, 
Members and guests, my name is Bert Lemkes. I am honored to be 
here. I am co-owner of Van Wingerden International. We own and 
operate 37 acres of greenhouses in Mills River, North Carolina, 
and we employ over 350 people in the peak season.
    The subject of this hearing is E-Verify and identity fraud. 
We voluntarily switched to E-Verify about 2 years ago after we 
were exposed to a rumor that our business employed too many 
people that speak little English. We have found that E-Verify 
confirms the real problem with our current outdated and failed 
immigration laws. When asked how does E-Verify work for you, my 
answer is those that are willing to do the work fail the 
system, but many of those that pass the system fail to do the 
    The jobs of our American employees, which includes growers, 
supervisors, merchandisers, managers, are at stake when we 
cannot find the production labor that we need. Around 70 
percent of the labor force in agriculture is estimated to be 
unauthorized. These are honest, hard working, and loyal folks 
who have come here only seeking work and better pay. This is 
not about low wages. Our starting pay is way above the minimum 
wage, includes benefits with all the payroll withholdings going 
to the government. This is also not about taking jobs from 
American workers. Even in the economic downturn, with high 
unemployment, it is very tough to find those willing to thrive 
at these jobs.
    I, too, am an immigrant. I came to the U.S. for opportunity 
because of my work. I know how long and costly the process is 
to legally get a visa and eventually become a U.S. citizen. Our 
current labor force in agriculture has no way to follow this 
route. Practically speaking, there is no line for them to get 
in to get a resident visa, and the temporary program known as 
H-2A is a failed bureaucracy on a good day. The majority of our 
labor force came for one reason only, work, not to emigrate 
permanently, not to use our Social Security or welfare systems, 
not to cause problems. Just to work.
    If agriculture cannot find the labor to do the often back-
breaking, repetitive, and sweaty work, many American jobs in 
the production chain will be lost. Economic activity will leave 
this country. Agriculture needs a legal workforce with a visa 
system that is market driven, flexible to deal with crop cycles 
and weather, and portable to allow the workforce to choose and 
move among farm employers. This will sustain a normal 
competitive labor market, rewarding employers that take care of 
their workers.
    Government's role should be smart and limited because too 
much bureaucracy kills all good intentions. For too long the 
political solutions on immigration have failed us and led to 
unintended and even irreversible consequences. Employers and 
employees are being held hostage by the failure of our 
government to address immigration reform. The danger now is 
that stand-alone E-Verify will shift the risk from identity 
fraud to more identity theft. A recent independent report I 
reviewed found that E-Verify clears borrowed or stolen 
documents with good numbers over 50 percent of the time.
    We urge you, America's leaders, to pass an agriculture 
worker visa program before strong anti-immigrant emotions and 
enforcement-only laws take control with dramatic and 
devastating results for our agriculture sector and everyone 
that depends on it. We will export jobs and we will import more 
    In closing, I would like to make these most important 
points: First, the agriculture industry is willing to embrace 
and improve the E-Verify system but only if it is combined with 
a modern and viable agriculture worker program that ensures a 
legal labor force now and in the future. To put this in an 
agriculture picture, they are the cart and the horse. The cart 
can't move without the horse, and they need to be in the right 
    We need a solution that ensures timely access to legal 
workers. It must also facilitate the work authorization of 
current and experienced workers who may lack proper immigration 
status. These workers are most of the experienced talent pool 
in America's farms, and it is unthinkable that they could 
somehow be replaced.
    Finally, we need to protect our country and its borders, 
and that includes sustaining our food and agriculture 
production inside those borders. Thank you.
    [The prepared statement of Mr. Lemkes follows:]

    Mr. Gallegly. Thank you, Mr. Lemkes. Mr. Lemkes, you just 
stated a study done by Westat; is that correct?
    Mr. Lemkes. That is correct.
    Mr. Gallegly. One of the things that you didn't refer to 
and perhaps you are not aware that the Westat report states 
that this was an estimate and that Westat did not identify one 
single instance in which an illegal immigrant was not detected 
by E-Verify. Are you aware of that?
    Mr. Lemkes. I know that they are estimates. A lot of 
studies are based on----
    Mr. Gallegly. Yeah, but are you aware that they didn't have 
one example? Does that not bring into question maybe the 
validity and the accuracy of--I mean, we can all estimate. I 
estimate that 95 percent of the people working in agriculture 
is, are illegal. Now maybe that is not totally accurate, but in 
some areas I know it to be. So would you yield that an estimate 
is not always the best way to give a valid number?
    Mr. Lemkes. Can I react to that one?
    Mr. Gallegly. Sure.
    Mr. Lemkes. We experienced about a year ago whereby we got 
a call from the Charlotte ICE or DHS office if we employed a 
certain person. We checked. We didn't answer right away, we 
checked and, yes, that person was employed by us, was a new 
employee, so we ran him through the E-Verify system. We called 
back, and the officer on the other side said well, we just 
arrested him, he is an illegal immigrant. He passed our E-
Verify system.
    Mr. Gallegly. Well, but he was caught in the system.
    Mr. Lemkes. He was caught afterwards, not employed for us 
anymore, sir.
    Mr. Gallegly. And are you still currently using E-Verify?
    Mr. Lemkes. Yes, sir.
    Mr. Gallegly. I would like to thank you for that. Would you 
say that the issue is--you have approximately 350 employees?
    Mr. Lemkes. Yes, sir.
    Mr. Gallegly. And for the record, it is clear that we don't 
know exactly the number, but it is 14, 15 million, 16, people 
unemployed in the United States today, obviously not all 
capable of working in agriculture, but would you say it is 
virtually impossible to find 350 out of 14 million that could 
do the job? Or would be willing to do the job?
    Mr. Lemkes. Our experience over the past couple weeks, as 
an example, when we have peak shipping for a holiday like 
Easter, it is very difficult to find people that are willing 
and able to thrive in these jobs. Everybody can do the work, 
    Mr. Gallegly. But they are not willing to, no matter how 
hungry they get, maybe because of extensions of unemployment 
    Mr. Lemkes. By noon they look at the clock, and that 
afternoon they leave, and they don't come back.
    Mr. Gallegly. Well, let me--in closing, Mr. Lemkes, could 
you tell me, do you believe in the E-Verify bill that we have 
before Congress today, did a clear exemption for agriculture, 
that would solve all the problems of agriculture as it relates 
to employees?
    Mr. Lemkes. No, I think we need an agriculture work visa. 
Agriculture does not----
    Mr. Gallegly. Well, let's talk about that for a second. If 
E-Verify was exempted for agriculture and E-Verify went on all 
the other trades, if someone was illegally in the country, they 
couldn't go to work hanging drywall or working in a hotel or 
any number of other things, they couldn't leave agriculture. 
That wouldn't be a benefit to you?
    Mr. Lemkes. No, because agriculture does not want to do 
anything that is illegal. We would like to get this resolved. 
We would like to take the fear out of the business side as well 
as the employee side.
    Mr. Gallegly. Okay. I thank you for using E-Verify.
    Ms. Andrushko, your child, I hear these stories. If it is 
any consolation, you are not the only person in the country, 
unfortunately, that is facing these.
    Ms. Andrushko. I know.
    Mr. Gallegly. And I am sure with your group and good work, 
that is an indication of that. The woman that stole your son's 
theft--stole his identification, she was apprehended.
    Ms. Andrushko. Yes.
    Mr. Gallegly. And she was booked?
    Ms. Andrushko. Yes, twice.
    Mr. Gallegly. And you say she was released?
    Ms. Andrushko. She was booked and released on bail twice in 
1 week.
    Mr. Gallegly. On two----
    Ms. Andrushko. She has five counts, she has five counts of 
felonies, she has two counts of forgery, three counts of 
identity theft just for the employment aspect of it.
    Mr. Gallegly. And how long has she been out and not in 
    Ms. Andrushko. Her first arrest was on Wednesday, March 
14th of 2012, and her second arrest with a different facility 
for ICE purposes, which she was also released from----
    Mr. Gallegly. So she is not even----
    Ms. Andrushko [continuing]. Was a week later. So she is not 
in custody.
    Mr. Gallegly. They don't even have an immigration hold on 
    Ms. Andrushko. No, I don't believe so. But I am not sure.
    Mr. Gallegly. I see that my time has expired, and with that 
I will yield to the gentlelady from California, the Ranking 
    Ms. Lofgren. Thank you, Mr. Chairman. I read the testimony 
with some interest, and I just want to note that we contacted 
the Federal Trade Commission after we took a look at Mr. 
Mortensen's testimony. And here is what the FTC told us, that 
the data in his report comes from self-reported consumer 
complaints, not actual data pertaining to criminal conduct. 
They told us there was no study, there had been no survey, and 
the FTC made it clear to us that this data is not scientific 
and that from this data one cannot determine whether identity 
fraud has gone up, down or sideways.
    In any event, the data upon which Mr. Mortensen's testimony 
relies shows that employment-related identity fraud complaints 
from Arizona have been declining, but I think it is worth 
noting that that same decline in terms of the self-reporting 
data is present in States that do not have mandatory E-Verify, 
including California, Colorado, Florida, Illinois, Maryland, 
and on and on.
    I also think it is important to note the difference between 
document fraud and identity fraud. Before the hearing I asked 
my staff to speak with the Social Security Administration so 
that we could better understand the issue, and what they, the 
Social Security Administration, told us is that there is a 
clear difference between the two. When an undocumented 
immigrant uses a fake Social Security number to get through the 
I-9 process, it may or may not be that the number belongs to 
another worker. But even if the number does belong to someone 
else, SSA says it segregates any earnings made by someone whose 
name does not match the name officially associated with that 
number, and those earnings and any tax liabilities that may 
arise are not attributed to the rightful owner of the number. 
Those earnings are placed in a suspense file, and it is worth 
noting that almost a trillion dollars in earnings have been 
placed in that suspense file since 1938.
    Now, the situation is much worse if the unauthorized worker 
engages in identity theft to evade E-Verify by using a matching 
name and Social Security number. Then you have the kind of 
problems that Ms. Andrushko identified, and which is a terrible 
problem. I am going to take your testimony, which is very 
meaningful, and talk to Members of the Ways and Means Committee 
about what can be done further with victims because you 
shouldn't be left on your own as you described.
    Ms. Andrushko. Thank you.
    Ms. Lofgren. I would like to talk, Mr. Lemkes, I would like 
to ask you a couple questions because this is, I think, the 
sixth hearing we have had in Congress about E-Verify. And we 
have heard over and over again from the agricultural sector 
that if we do mandatory E-Verify without reform to the 
immigration laws, it is going to destroy agriculture and the 
industries that rely on ag.
    You have indicated that the H-2A program is a mess, and we 
have heard that from others. Do you think it is possible or 
impossible to replace the current undocumented workforce with 
millions of new temporary workers? And do you believe that, 
assuming you could get those millions of people actually 
interviewed in consulates abroad in a timely fashion, that they 
would have the skill set that is present among the current ag 
    Mr. Lemkes. The skills that our labor force has it gained 
over years, and it will take an equal amount of time to retrain 
another workforce. It is not a highly educated requirement, but 
it is skill sets that just do not simply transplant from one 
person to another person.
    Ms. Lofgren. We had a Republican witness, Paul Wenger, from 
the California Farm Bureau, who testified at a prior hearing, 
saying that mandatory E-Verify without reform of the 
immigration system would be a disaster. He pointed out in 
addition to the skill set that is necessary that there is 
something that is very interesting which is an improving 
economy in Mexico but a drastically declining birthrate in 
Mexico. His view is that you would never really be able to 
recruit another 1.2 million farm workers in Mexico to replace 
the people who have been here in some cases for decades. Do you 
have a viewpoint on that?
    Mr. Lemkes. I don't. I hope that we will be able to 
continue our agriculture in this country and that we will be 
able to secure the labor that we have right now as well as the 
    Ms. Lofgren. My time has expired, but your agricultural 
sector is very dependent, if I am hearing you correctly, on 
manual labor. You can't mechanize what you are doing; is that 
    Mr. Lemkes. We mechanize a lot. We have automatic 
transplanters, we have spacing machines, but there is still a 
lot of hand labor, and to illustrate what could happen with the 
food side, already a lot of our supply cuttings come from 
Guatemala, El Salvador, Ethiopia, Kenya. So very labor 
intensive stock production has already moved offshore.
    Ms. Lofgren. Thank you, Mr. Chairman. My time has expired.
    Mr. Gallegly. Thank the gentlelady. The gentleman from 
Iowa, Mr. King.
    Mr. King. Thank you, Mr. Chairman. I would first turn to 
Ms. Andrushko and ask if Lidia Aguirre, if her, when she 
applied for a job on your son's Social Security number, if that 
employer had used E-Verify, what would have happened?
    Ms. Andrushko. If they had used E-Verify, it is my 
understanding that they would have received a notice that the 
number had not been issued yet.
    In which case there wouldn't have been a confirmation that 
the applicant was eligible to work in the United States?
    Ms. Andrushko. Correct. Yes.
    Mr. King. In which case you might have found out about this 
sooner perhaps?
    Ms. Andrushko. Yes.
    Mr. King. Thank you. And I appreciate all your testimony. I 
just listen to some of the remarks here, and I start to think 
about what would happen if everybody woke up tomorrow morning 
in a legal residence; if they went to bed tonight in the 
country that they were legal to live in, what would happen.
    Well, one thing that would happen, according to the Drug 
Enforcement Agency, it would receiver at least one link in 
every distribution chain of illegal drugs in America. It would 
dramatically change the crime scene in the United States. It 
would put Mr. Lemkes perhaps at a disadvantage, but he is using 
E-Verify, so I am going to suggest that it wouldn't be 
particularly dramatic in your company, but it might be dramatic 
in a number of other companies.
    I don't believe that the land in America would grow up to 
weeds. I think at some point we would turn it into the kind of 
operations that could operate without illegal labor.
    And I recall listening to testimony in the last Farm Bill 
we did in 2007 down in Stockton, California. We had a witness 
that came in and said they had 900-some employees, they worked 
really close to the border, I believe it was New Mexico, and 
they raised onions and peppers and high intensity labor crops 
like that. And I, asked why did you build that farm there? It 
was desert and you set up irrigation systems. Well, it is 
because we get labor to come right across the border. Well, 
they had a business that was predicated on illegal labor.
    Ms. Lofgren. Will the gentleman yield?
    Mr. King. No, if I have enough time, I will yield. No, I 
wouldn't yield then.
    But if you establish a business on illegal labor and then 
come to the Congress and say make those people legal because it 
is an inconvenience to me with my operation, they won't be 
raising the peppers and the rutabagas and the tomatoes we would 
be raising otherwise, I think we need to look back at this.
    Because the Federal Government hasn't aggressively enforced 
their immigration law, we have allowed numbers of 10, 11, 12, 
20 or more million people to come here and stay here, and we 
turn a blind eye and we have an opportunity to enforce like 
they did with the theft of the Social Security number that you 
talked about, Ms. Andrushko.
    I mean, I envision a country that enforces the law whenever 
we encounter people that are breaking it. If we do that, people 
have an expectation then that the law will be enforced. When 
that happens, we will have reinforced the respect for the law 
and the rule of law. And, by the way, that is one of the 
reasons that many people come to the United States in the first 
place is because we have the rule of law. They don't have to 
pay mordida. When you get pulled over for speeding or running a 
stop sign or whatever it is, you don't have to get your cash 
out in order to move on. And when someone goes before a court, 
they are treated the same whether they are--whatever their 
status and social status is in life. And I think it is an 
important of this is the rule of law.
    But as I listened to Mr. Smith in his opening remarks, and 
he talked about the paper version of I-9. I remember that. I 
have been an employer for years. And I lived in fear that the 
Federal INS agents would come in and see if I had my records 
completely under control. They are still someplace in my 
archives, they are under control.
    But to move this to a modern version in 2012 where we can 
use an electronic base is a wise and prudent thing to do, and I 
would add to that and ask the question then of Mr. Mortensen, 
but isn't the next generation of E-Verify, and you know that I 
want the IRS to be involved in this as well and provide that 
kind of incentive, but isn't the next generation of E-Verify to 
take the problems that we have of identity theft and the value 
of those Social Security numbers that you testified about, and 
to take some of that away by either using it tied to a bio-
identification or a picture ID, Mr. Mortensen?
    Mr. Mortensen. Yes, it is important to get beyond simply 
the fact of the paper documents and not really knowing the 
person who presents those documents, because as has been noted, 
if somebody, if I take--well, you are a little young maybe, but 
if I take your name and birth date and Social Security number, 
I can probably get through E-Verify, unless the employer 
questions why the age discrepancy maybe. But if we go to a 
biometric or with a photo ID system or some way they could pull 
up your photo and compare it to my photo, then E-Verify would 
throw that out.
    Mr. King. I appreciate this response. And I would remark 
that in this room earlier this morning we had the video 
demonstration of how an individual walked in and was offered 
the ballot of our Attorney General, Eric Holder, without a 
picture ID as well. So I tie these two things together.
    I thank the Chairman and yield back will balance of my 
    Mr. Gallegly. Thank the gentleman. With that, I just have 
one clarification for the record. I was a little confused about 
one thing you said. You referenced a hearing in Stockton, 
California, and the reference to one of the witnesses you 
believed to be from New Mexico or somewhere. I assume you meant 
that that person testifying wasn't from Stockton, California, 
but rather from another State, not close to Stockton, 
    Mr. King. For clarity, Mr. Chairman, I would emphasize that 
this individual was not a Californian and it may have been the 
only time she ever went to California, for all I know.
    Mr. Gallegly. I just wanted to keep the record straight, 
Mr. King.
    With that, I yield to the gentlelady from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. I want to thank the Chairman and Ranking 
Member and just for the record indicate we are in markup on 
Homeland Security on cybersecurity legislation, and so I thank 
the Chairman for the indulgence. This is an important 
Committee, and I thank the witnesses very much.
    Let me just say to Ms. Andrushko, I hope I have a close 
pronunciation, I have been briefed on your testimony.
    Ms. Andrushko. You did.
    Ms. Jackson Lee. And just say that I am appalled and want 
to make sure I read your testimony very thoroughly, and 
separate and apart from where we are today in this hearing, I 
want to make sure that in fact the cybersecurity markup dealing 
with technology had a lot to do with how we are invading 
people's privacy. But let me give you my commitment of concern 
and that we should be working on this whole question of 
identity theft. Thank you very much for your presence here 
    Ms. Andrushko. Thank you.
    Ms. Jackson Lee. I wanted to just for the record state what 
I have said for the record on many occasions, and that is when, 
O Lord, when are we going to have comprehensive immigration 
reform so that all of the persons who are raising these very 
vital concerns can be protected. Once we have the establishment 
of the four parameters of who is here, who is not here, 
parameters of entry, whether or not there is going to be 
temporary documentation to work in certain industries, whether 
we answer the American public's question of I need a job, why 
are you letting others get a job. And we have an answer for 
that, a perfect answer.
    I might say that we have jobs that are being created. One 
of my constituents in the forgery industry, not forging, but 
dealing with metals and others, is having a job fair in Houston 
because they need jobs. So I think it is extremely important.
    I would take note, Mr. Chairman, you have the right to 
laugh, so does your staff, so does this lady that sits in the 
front row in our hearings all the time. But let me be very 
clear whether or not there was a pronunciation issue or not, 
this is not a funny issue. And I see that individual sitting 
all the time laughing in this hearing, and I guess I am the 
only one that is willing to make point of it. We welcome 
visitors or whoever the person is, but we certainly think that 
we are dealing with serious issues.
    But as I was saying, this is----
    Mr. Gallegly. Would the gentlelady yield for a second?
    Ms. Jackson Lee. I would be happy to yield.
    Mr. Gallegly. I apologize, but the issue is that we have 
all made maybe a little faux pas in making a statement about 
something, but I do not take forgery lightly.
    I would yield back.
    Ms. Jackson Lee. I recognize that, and that is why I 
corrected myself for making that comment. And I am sure I will 
find myself on Rush Limbaugh, but since I have a backbone of 
steel, let me say to all of the right-wingers and Tea-Partiers, 
I don't care.
    Let me proceed and go on at the comment I am trying to 
make. We have repeatedly had these kinds of hearings, and, 
frankly, we do this over and over again and accomplish nothing. 
This hearing is again about E-Verify. And what I was saying is 
that there are many jobs and many job fairs, and it shows that 
the American people have opportunities. When we talk about 
comprehensive immigration reform, what happens is that people 
are concerned about their jobs.
    So I want to ask you, Mr. Lemkes, is that the correct 
pronunciation of your name, let me just put this on the record. 
By my count this is our sixth hearing so far this Congress has 
had where E-Verify was the main topic of discussion, and we 
debated the issue for days more when this Committee marked up 
the Chairman's E-Verify bill. The one theme that ran through 
all of these hearings and markups was that mandatory E-Verify 
without other reforms to our immigration law would destroy 
agriculture and other industries that rely on immigrant labor. 
There was a consensus on that on both sides of the aisle. Yet 
this Committee seemed not to be getting the hint. If it wants 
E-Verify, it is going to need to do something about this 
country's labor needs.
    My question to you, can you please remind this Committee 
what mandatory E-Verify without providing a viable agricultural 
workforce would do to your business and those of other 
agricultural employers? And the gist of it is simply can we 
just hit you over the head with E-Verify, can we ignore that we 
need to work on identity theft, but just hit you over the head 
and have no other larger structure of comprehensive immigration 
    Mr. Lemkes. The issue is that E-Verify in itself is not the 
    Ms. Jackson Lee. Or not the answer.
    Mr. Lemkes. And it is not the answer. In my statement I 
said it is the cart and the horse. We need E-Verify and we need 
an agriculture worker visa program. The fact that we 
voluntarily switched to E-Verify proves to us that the 
immigration system does not work too well. The laws are 
outdated. The changes in demographics in the U.S. are 
documented well. We try to get labor, but if people do not 
really want to thrive in the jobs that we have, I can just 
imagine the disaster it will be if it is mandatory for the 
whole Nation. In North Carolina we are going already in that 
direction, because we got an E-Verify law that is coming into 
effect. Now, there are some exemptions which create other 
    But agriculture is not against E-Verify. Agriculture is 
against E-Verify without immigration reform, or specifically an 
agriculture worker visa.
    Ms. Jackson Lee. I think that is excellent. I yield back to 
the Chairman and just say the Restaurant Association members 
are here. I understand one of their issues is immigration. I am 
not sure if they have pulled back, but I know they have been 
advocates to the Ranking Member of comprehensive immigration 
    I just wanted to make the point, Mr. Chairman, that there 
are jobs out there. And let me apologize to the Committee's 
record for rushing my pronunciation, but I don't think I have 
anything to apologize for when we are talking about serious 
    I yield back to this Committee. Thank you.
    Mr. Gallegly. I just would like to briefly respond to the 
gentlelady's reference to the National Restaurant Association. 
I have not heard anything about the specifics of comprehensive 
immigration reform, unless you are referring to their strong 
support and advocacy for E-Verify as their answer to 
comprehensive immigration reform.
    With that, I would yield to Mr. Gowdy.
    Ms. Jackson Lee. Well, Mr. Chairman, I have heard from them 
nationally and they support comprehensive immigration reform.
    Ms. Lofgren. Would the Chairman yield?
    Mr. Gallegly. Yes.
    Ms. Lofgren. I would ask unanimous consent to put into the 
record the testimony of the association from the prior Congress 
in support of comprehensive immigration reform.
    Mr. Gallegly. I would agree with that, and I would also ask 
unanimous consent that the current Congress, the representation 
of the National Restaurant Association as it relates to the 
current Congress be added to the record as well.
    With that, I would yield to Mr. Gowdy.
    [The information referred to follows:]

    Mr. Gowdy. Thank you, Mr. Chairman. I also want to thank 
the three witnesses who came today and actually were responsive 
to the Chairman's questions. It is a shame, Mr. Chairman, that 
ICE was not willing to answer your legitimate questions. It is 
a shame, Mr. Chairman, that ICE was not willing in a timely 
fashion to comply with the legitimate subpoenas issued by 
Chairman Lamar Smith.
    Mr. Chairman, it has been a bad week with respect to the 
disconnect between certain government agencies and the people 
for whom they work. I guess at one level I should be encouraged 
that we actually had a congressional hearing where no 
government employees invoked their Fifth Amendment right 
against incrimination. But maybe I may have set the standard 
too high.
    If ICE were here, Mr. Chairman, I was going to ask them 
with respect to the testimony from Ms. Andrushko, she testified 
ICE let the illegal immigrant who was fraudulently using her 
son's Social Security number go twice after being arrested. I 
think it is a very legitimate fair question to ask ICE why they 
did not detain an illegal immigrant who was arrested multiple 
times. That is a fair question, it is a legitimate question. 
Why ICE won't come answer that question is beyond me.
    I also wanted to ask ICE, Mr. Chairman, if they agreed that 
the widespread use of fraudulent documents has undermined the 
effectiveness of the I-9 process. But I can't ask them when 
they are not responsive to the Chairman's questions and they 
are not here.
    I wanted to ask ICE what priority they give to breaking up 
fraudulent identity document rings. That is a legitimate 
question. It is a fair question. It is a question I suspect I 
am not the only one that would ask. But I can't ask ICE that 
question when they haven't been responsive to the Chairman's 
questions and they are not seated at the witness table.
    Then, Mr. Chairman, I looked at the subpoena request that 
Chairman Lamar Smith sent that were not complied with in a 
timely fashion, and what Chairman Smith asked for is 
information on aliens arrested between two certain dates, about 
3 years apart, so essentially 3 years worth of records on 
aliens about whom ICE was notified but did not take custody. It 
is not a complicated question, it is not an unfair question, it 
is not an irrelevant question, it is not an immaterial 
question, but it took a long time for ICE to answer it.
    So what I wanted to ask ICE this morning, but I can't 
because they are not here because they wouldn't answer your 
legitimate questions, I wanted to ask them whether or not the 
Administration advised them not to answer that subpoena. I 
wanted to ask them whether anyone in the Administration 
counseled them to drag their feet or otherwise not respond to a 
legitimate subpoena from the Chairman of the House Judiciary 
Committee. But I can't ask them because they didn't answer your 
questions and they were uninvited.
    The other thing I was hoping to ask them, had they come, 
Mr. Chairman, was Chairman Smith asked for information about 
aliens arrested again over that same 3-year time period. It is 
not even a different time period, it is the same 3-year time 
period, so they are not going to have to do any extra work. 
Three years worth of records about aliens that ICE was notified 
about but declined to put into removal proceedings, because I 
am asked all the time in South Carolina, they cannot fathom of 
someone being convicted of a crime that is here unlawfully and 
not removed.
    So I wanted to ask what took so long to comply with 
Chairman Smith's subpoena. Did the Administration advise you to 
drag your feet? Did the Administration counsel you not to 
answer these questions because the answers would be 
unflattering to the Administration?
    So, again, I want to thank the three witnesses who actually 
were responsive to the Committee's questions, and I thank the 
Chairman for his leadership on this issue. And until ICE will 
come and answer what I think are pretty relevant, material, 
fair questions, that would be all I have for the day.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Gowdy. I would be delighted to.
    Ms. Lofgren. I understand the gentleman's frustration. I 
just would note for the record that ICE was perfectly willing 
to come and testify today. It was the Chairman who disinvited 
them. I understand he disagrees with the nature of their 
written testimony. I do not. But they were willing to come, and 
I think it is important to say that.
    Mr. Gallegly. Would the gentleman yield to me?
    Mr. Gowdy. Yes, sir, of course.
    Mr. Gallegly. Yes, I did disinvite them because they were 
non-responsive. It wasn't because I disagreed with what they 
had to say. I disagreed with the fact that they did not respond 
to the germane question that was asked as it related to the 
purpose of this hearing today. And I would further say that 
when they did contact us and talked a little bit about well, 
why we didn't do it, we couldn't understand how that portion 
was kind of redacted from their statement, but they would be 
willing to come forward and in my opinion come forward and be 
non-responsive to the questions that I believe that had Mr. 
Gowdy asked them they would have been as non-responsive to his 
questions as they were to their written statement that related 
to the purpose of this hearing to start with.
    So it wasn't because I didn't agree with their statement. I 
didn't agree with the fact that they didn't respond.
    So, with that, Mr. Gowdy's time has expired due to my 
further discussion, and all time has expired. With that, I 
would like to thank our witnesses for being here today, 
particularly Ms. Andrushko. I can only begin to understand the 
frustration that this has put you through, and that obviously 
it is not over.
    Ms. Andrushko. No.
    Mr. Gallegly. And not over for a lot of other folks. That 
is really the purpose of the hearing today. I appreciate----
    Ms. Andrushko. Could I just say something? I know our time 
is up.
    Mr. Gallegly. Without objection.
    Ms. Andrushko. There were a couple of issues that I would 
like to touch on that were brought up. Mr. Lemkes, thank you 
for trying to protect our children's identities. First of all, 
thank you very much.
    I think a valid thing was brought up about jobs. My uncle 
owns a flower farm in California, southern California, and he 
does employ migrant workers who are authorized for work. So it 
is possible. Yes, it needs reform, but it is possible.
    On the citizen side of that, as an educator, I truly 
believe in determining the cause of a behavior in order to 
address the behavior issue. My son wants a farm. He wants a zoo 
when he grows up. I am sorry, I probably will get emotional 
talking about him because I just love him so much. But he has 
horrible, horrible seasonal allergies. By the end of the day, 
he can't even see because his eyes are so swollen shut, being 
on prescription eye drops and things. He would absolutely love 
to come and work for somebody like Mr. Lemkes, and I think 
other people would also. And the people who won't I think we 
need to look at why they won't and address that issue, because 
they would if they truly had a desire.
    Mr. Gallegly. Thank you very much. I thank all the 
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward to the witnesses to respond as 
promptly as possible in order that we make your responses as 
well as the questions part of the record of the hearing.
    Without objection, all Members have 5 legislative days to 
submit any additional materials for inclusion in the record.
    Again, I want to thank you all. I want to thank the Members 
for attending today. With that, the Subcommittee stands 
adjourned. Thank you.
    [Whereupon, at 12:36 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X


               Material Submitted for the Hearing Record

          Prepared Statement of Emily Tulli, Policy Attorney, 
                    National Immigration Law Center
    Since its inception in 1979, NILC has earned a national reputation 
as a leading expert on the intersection of immigration law and the 
employment rights of low-income immigrants. NILC's extensive knowledge 
of the complex interplay between immigrants' legal status and their 
rights under U.S. employment laws is an important resource for 
immigrant rights coalitions and community groups, as well as 
policymakers, attorneys, workers' rights advocates, labor unions, 
government agencies, and the media. NILC has analyzed and advocated for 
improvements to the E-Verify program since it was first implemented in 
1997 as the Basic Pilot program, and has extensive experience assisting 
advocates and attorneys in responding to problems with the program as 
it affects workers--immigrants and U.S.-born alike. NILC is a 
nonpartisan national legal advocacy organization that works to protect 
and promote the rights of low-income immigrants and their families.
    An E-Verify mandate will result in the increased use of false 
documents, employer misuse of the program, employers refusing to use 
the program, and will do nothing to fix our broken immigration system. 
Everyone agrees that document fraud is a problem. But mandating E-
Verify is an ineffective reaction that does not provide a real 
solution. Like any immigration enforcement-only policy, the Legal 
Workforce Act and other mandatory E-Verify proposals do not alter the 
fundamental economic realities that encourage--and even necessitate-- 
the employment of unauthorized workers and the attendant document 
fraud. With or without mandatory E-Verify, the eight million 
unauthorized workers currently in the U.S. will continue to seek work 
and employers will continue to hire unauthorized workers.
    Attempts to mandate E-Verify are not innovative. In fact, mandatory 
use of the program has been a part of every immigration reform bill 
since 2005, and NILC has worked on a bi-partisan basis to craft 
proposals that ensure due process and privacy protections for all 
workers. However, these efforts always paired E-Verify's use with a 
path to legal status for unauthorized workers laboring in our economy. 
Instead of piling mandatory E-Verify on top of a dilapidated system, we 
need real immigration reform that provides employers with a steady 
workforce and unauthorized workers with a path to citizenship.
 with mandatory e-verify, many employers refuse to the use the program 
               and the use of false documents increases.
    Without a path to citizenship for unauthorized workers, an E-Verify 
mandate results in employer nonuse of the program. Arizona and Georgia, 
both states that require employers to use E-Verify, show us how 
employers behave. In Arizona, during the first fiscal year following 
the law's passage, nearly half of all employers did not use E-Verify to 
check the work authorization of newly hired employees.\1\ Similarly, in 
Alabama most employers are not using E-Verify, despite a state mandate. 
Estimates vary, but between 79 and 96 percent of Alabama employers had 
not registered to use E-Verify when the state law went into effect, 
much less used the program to verify new employee's work 
authorization.\2\ Simply put, even when required by law to do so, many 
employers refuse to do so.
    \1\ Jahna Berry, ``Most Arizona Employers Aren't Using E-Verify,'' 
The Arizona Republic, July 28, 2010, www.azcentral.com/arizonarepublic/
    \2\ See Jay Reeves, ``Most Alabama Firms Miss Immigration Goals,'' 
The Associated Press, 
April 4, 2012 http://news.yahoo.com/apnewsbreak-most-ala-firms-miss-
immigration-goal-133758590.html. The percentage range cited was 
calculated by dividing the state number of AL registered companies 
(provided by USCIS equally 18,137) by the number of total companies 
doing business in the state as reported by the Alabama Department of 
Revenue (368,613) and the state Department of Industrial Relations 
    Of the employers who do register with United States Customs and 
Immigration Services (USCIS), some coach unauthorized workers, allowing 
them to beat the system's requirements, increasing the fraudulent use 
of documents. In Arizona, Immigration and Customs Enforcement (ICE) 
reports that employers have learned that E-Verify's photo matching tool 
accepts only two documents, permanent resident cards and employment 
authorization documents, which are heavily protected from tampering and 
counterfeiting.\3\ When some unscrupulous employers believe that an 
employee does not have valid work authorization, they ask the employee 
to provide other identity documents that will not trigger the photo 
matching tool. Senior ICE officials have said that this has increased 
the fraudulent use of documents which are not part of the photo 
matching tool.\4\ Without an overhaul of the current immigration 
system, mandatory E-Verify allows unscrupulous employers to continue to 
employ unauthorized workers while incentivizing the increased use of 
false documents.
    \3\ Richard M. Stana, Report to the Subcommittee on Social 
Security, Committee on Ways and Means, U.S. House of Representatives: 
Employment Verification, Federal Agencies Have Taken Steps to Improve 
E-Verify, But Significant Challenges Remain (Government Accountability 
Office, Dec.2010,GAO-11-146), www.gao.gov/new.items/d11146.pdf, p. 22.
    \4\ Id.
    Arizona and Alabama are the canaries in the coalmine. With a 
national E-Verify mandate, we can expect widespread employer nonuse of 
the program and the increased use of false documents.
        with mandatory e-verify, employer misuse will increase.
    As a largely voluntary program, there is already significant 
employer misuse of E-Verify. This misuse of E-Verify has a tangible 
impact on workers' job stability and quality. For example, under the 
current regime, over 66 percent of employers took adverse actions 
against workers receiving a tentative nonconfirmation (TNC), despite 
program rules that direct prohibit them from doing so.\5\ Adverse 
actions include prohibiting workers from working; restricting such 
workers' work assignments; and delaying job training for such 
    \5\ Findings of the Web-Based E-Verify Program Evaluation (Westat, 
Dec. 2009), www.uscis.gov/USCIS/E-Verify/E-Verify/Final%20E-
Verify%20Report%2012-16-09_2.pdf, p. 157.
    \6\ Id. at 157, 204.
    Workers are often kept in the dark by employers about TNCs issued 
by the program. Although required by law to do so, employers do not 
always notify workers of a TNC, depriving workers their ability to 
contest the TNC and keep their jobs. In fiscal year 2009, 42 percent of 
workers report that they were not informed by their employer of a TNC, 
resulting in the denial of their right to contest the finding.\7\ This 
is particularly troubling given the fact erroneous TNCs are issued for 
lawful workers and U.S. citizens.
    \7\ Id. at 154, 199.
    Using Westat's statistical model, approximately 0 .8 percent of 
TNCs are issued in error.\8\ Although E-Verify's use remains voluntary 
in most states, there were 16 million E-Verify queries by employers in 
fiscal year 2010, resulting in 128,000 erroneous TNCs.\9\
    \8\ Employers receive a ``tentative nonconfirmation'' notice--or 
TNC--from either SSA or DHS when the agencies are unable to 
automatically confirm a worker's employment eligibility. A ``tentative 
nonconfirmation'' notice is not an indication of an immigration 
violation, and workers have the right to contest the finding with the 
appropriate agency. For the .08 percent erroneous TNC rate, see Westat, 
supra note 5, p. 117.
    \9\ Id.
    Under a nationwide mandate, it is likely that employer misuse would 
grow and is not limited to TNC issues. At least 57 percent of employers 
using E-Verify violate the program's rules by using it to prescreen 
workers.\10\ When workers are prescreened and not offered a job, it 
takes them at least three weeks to find other employment.\11\ Employer 
misuse likely will only increase in a mandatory system. Current E-
Verify users are disproportionately large businesses and federal 
contractors, and most users that have enrolled in the system have 
chosen to do so on a voluntary basis -- all factors that make them more 
likely than a ``typical'' U.S. employer to approve of the system and 
use it successfully. Misuse of the program would almost certainly 
increase if all employers were required to use the system. In Arizona, 
the employers are less compliant with E-Verify procedures than E-Verify 
employers nationwide.\12\
    \10\ See Westat, supra note 5, p. 149.
    \11\ Id.
    \12\ See Westat, supra note 5, p. 237.
    Employer misuse of E-Verify is likely to grow with a national 
mandate, threatening to cause adverse action against even more work-
authorized individuals and U.S. citizens who will receive erroneous 
    Without immigration reform, E-Verify does not provide an effective 
solution to the problems that arise alongside unauthorized employment. 
Mandatory E-Verify, through the Legal Workforce Act or other bills, 
does nothing to address the underlying economic realities that drive 
the employment of unauthorized workers, and serves to make matters 
worse. There are currently 8 million undocumented workers in the 
country, representing 5.2 percent of the U.S. labor force.\13\ And 
while fraudulent use of documents is a serious problem, an E-Verify 
mandate fails to address employers' or workers' needs while actually 
incentivizing the use of false documents and misuse of the program. 
Lawmakers should learn from the states with E-Verify mandates and 
address the real issue. The immigration system is broken and needs a 
total overhaul, not misplaced solutions like mandatory E-Verify.
    \13\ Jeffrey Passell and D'Vera Cohn, Unauthorized Immigrant 
Population: National and State Trends, 2010 (Pew Hispanic Center, Feb. 
1, 2011), http://pewhispanic.org/files/reports/133.pdf, p. 17.