[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
DOCUMENT FRAUD IN EMPLOYMENT AUTHORIZATION:
HOW AN E-VERIFY REQUIREMENT CAN HELP
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
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
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
U.S. GOVERNMENT PRINTING OFFICE
73-860 PDF WASHINGTON : 2012
____________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected].
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 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
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
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
DENNIS ROSS, Florida
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
----------
APRIL 18, 2012
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............................. 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 4
WITNESSES
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
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Emily Tulli, Policy Attorney, National
Immigration Law Center......................................... 75
DOCUMENT FRAUD IN EMPLOYMENT AUTHORIZATION: HOW AN E-VERIFY REQUIREMENT
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
documents.
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
workers.
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-
eligible.
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
regrettable.
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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.
TESTIMONY OF RONALD MORTENSEN, Ph.D., U.S. FOREIGN SERVICE
OFFICER, RETIRED, CENTER FOR IMMIGRATION STUDIES
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gallegly. Thank you, Dr. Mortensen.
Ms. Andrushko. Am I pronouncing that correctly?
Ms. Andrushko. Yes, Andrushko.
Mr. Gallegly. Thank you.
TESTIMONY OF JENNIFER ANDRUSHKO, OGDEN, UT
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
bail.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gallegly. Thank you, Ms. Andrushko.
Mr. Lemkes.
TESTIMONY OF BERT LEMKES, CO-OWNER,
VAN WINGERDEN INTERNATIONAL, INC.
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
work.
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
food.
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
sequence.
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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,
but----
Mr. Gallegly. But they are not willing to, no matter how
hungry they get, maybe because of extensions of unemployment
benefits?
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
custody?
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
her?
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
Member.
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
workforce?
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
future.
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
correct?
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
time.
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,
California.
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
today.
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
reform?
Mr. Lemkes. The issue is that E-Verify in itself is not the
problem.
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
complications.
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
reform.
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
issues.
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
witnesses.
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.
overview
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/
news/articles/2010/07/28/20100728arizona-employers-ignoring-
everify.html.
\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
(85,000).
---------------------------------------------------------------------------
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
workers.\6\
---------------------------------------------------------------------------
\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
TNCs.
conclusion
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.