[Congressional Record Volume 159, Number 91 (Monday, June 24, 2013)]
[Senate]
[Pages S5098-S5101]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           IMMIGRATION REFORM

  Mr. PORTMAN. Mr. President, I rise today to talk about the 
immigration bill that is before the Senate this week. We just had a 
vote on the Corker-Hoeven amendment. I wish to talk about why it is so 
important to fix our broken immigration system, but also about a 
critical issue that I believe has to be addressed in order for the 
proposed reforms to work.
  I wish to begin by acknowledging the hard work of a number of my 
colleagues, including four Republicans and four Democrats who came 
together and spent months negotiating the bill we are now considering. 
They showed a lot of courage in addressing a tough issue. It is a tough 
issue politically, and it is a difficult issue in terms of the 
policies.
  I also wish to recognize Senators Hoeven and Corker who offered that 
amendment today. The changes they made in that amendment are a step in 
the right direction because they provide more enforcement for 
immigration laws, and we have to guarantee there is meaningful 
enforcement that is coupled with any legal status for people who are 
now living in the shadows. I think that enforcement must include strong 
border protections. That was talked about a lot on the floor today.

[[Page S5099]]

  It also has to include enforcement of the visa system so an entry-
exit system for visas is effective. Finally, it has to include 
workplace enforcement.
  In my view, the enforcement policies in the underlying bill and in 
the amendment we just voted on are still insufficient to ensure that we 
ultimately resolve our illegal immigration crisis. Much of the debate 
over the past week has been about border security, and the most 
significant provisions in today's amendment are focused on the border. 
So much so it was described today as being a border surge--employing an 
additional 20,000 Border Patrol agents and completing 700 miles of 
fencing that will no doubt make it harder for people to cross the 
southern border illegally.
  Again, I think it is important we have a secure border. But, in 
reality, no matter how many miles of fence we build and no matter how 
many agents we station along the border, I truly believe people will 
continue to come to this country illegally as long as they believe 
America offers them a better life and a better job.
  As we see on subsections of the border where fences have already been 
constructed, determined people find ways to go under, over, and around 
it. Some go around those parts of the border altogether to enter our 
country through a coastline or other less secure parts of the border. 
We also have to acknowledge that even if we were to prevent every 
single unauthorized entry at the border, such enforcement would not 
solve the problem of illegal immigration. Why? Because we are told that 
40 percent of those here illegally are visa overstays. In other words, 
they came legally. They didn't come illegally across the border; they 
came legally and they have overstayed. They never tumbled a border 
fence or evaded a Border Patrol agent; instead, they came here legally 
and simply overstayed their visas.
  Having a secure border is important for our immigration system, as I 
have said. It is also important because of the illegal drug traffic, 
because of the concern about terrorists coming over our border. So I do 
support having a more secure border, but I do not think it is 
sufficient.
  Today I want to talk about an issue I think should receive more 
attention. It has received a lot less than border security over the 
past few weeks, as we have talked about this legislation. But I think 
it is even more important to the ultimate success of comprehensive 
immigration reform, and it is about turning off the jobs magnet--the 
jobs magnet for those who come here illegally for a better way of life 
and a better job. It is about effective enforcement of the workplace 
that I think is absolutely essential to bringing people out of the 
shadows and to preventing future flows of illegal immigration.
  The only way to do that at the workplace is through effective 
employment verification--a topic that has received little attention 
during our debate thus far, an area where I believe the current bill 
and the amendment we voted on tonight fall short.
  Policy efforts to eliminate this jobs magnet have been part of the 
discussion about immigration for decades. Yet our current employment 
enforcement system has failed to stem the tide of unauthorized workers. 
I am pleased the underlying bill would mandate the use of an electronic 
employment verification system called E-Verify. But the bill does 
little to address the inadequacies of the E-Verify system itself, 
including the widespread use of false documents.
  An effective employment verification system must first verify 
authorization to work by connecting a worker's name and biographical 
information to a legal status, and then, second, it has to ensure the 
worker is who he or she says he or she is--in other words, connecting 
an individual to a specific name and identity record.
  The goal of E-Verify should be to provide for a simple, reliable way 
for employers to confirm a new employee's work eligibility and to 
identify that person to prevent illegal immigrants from getting jobs in 
this country. Until we do that, and deal with the magnet, I do not 
think we are going to be able to get the kind of enforcement we need.
  The current voluntary E-Verify pilot program--this is the pilot 
program that is out there now that is mandatory in the underlying 
legislation, but in the pilot program, there is a way to reliably 
verify authorization to work. I think that actually is fairly 
effective. But where it has not been successful is in authenticating a 
worker's identity because it lacks a universal and secure system of 
verification. The best recent study of the E-Verify pilot, by the way, 
shows that 55 percent--54 percent--of unauthorized workers are getting 
through the system. In other words, more than half of those who are 
here illegally, processed through the E-Verify system, are erroneously 
found to be eligible for work. The reason is straightforward: Many 
unauthorized workers obtain employment by committing identity fraud 
that cannot be detected by E-Verify. So my primary focus over the past 
few weeks has been on working constructively to develop a bipartisan E-
Verify amendment to strengthen the employment verification provisions 
in S. 744 to help curtail the widespread unauthorized employment that 
fuels most illegal immigration.
  Along with my colleague from Montana Senator Tester, I have submitted 
an amendment today that strengthens E-Verify in five key respects--
first, by enhancing protections against Social Security number fraud 
and identity theft.
  A critical challenge in implementing mandatory E-Verify throughout 
the country will be combating the fraudulent use of other people's 
identities in seeking employment authorization. S. 744 seeks to address 
this challenge by allowing individuals to lock their Social Security 
numbers for purposes of E-Verify and requiring audits of suspicious E-
Verify activities.
  The amendment also requires the Social Security Administration to 
include in all of our annual statements we get from Social Security 
information about all E-Verify queries that have been placed during 
that year and for us to have a toll-free telephone number to be able to 
call folks if there has been a misuse of that number. This will allow 
us to be on guard against unauthorized workers fraudulently using our 
personal information to seek and obtain work.
  Our amendment also requires the Department of Homeland Security to 
notify individuals when they identify suspected Social Security number 
fraud in the E-Verify system.
  The amendment also allows the Department of Homeland Security to 
build on successful pilots programs in Florida and Mississippi to allow 
E-Verify to validate drivers' licenses and State-issued ID cards with 
information provided by the State motor vehicle administrations. This 
step is critical to stopping the pervasive use of fake drivers' 
licenses in the E-Verify process. But in doing so, we must also protect 
personal privacy, so the Portman-Tester amendment prohibits DHS from 
maintaining this information in a Federal database or transmitting that 
information except for the purposes of E-Verify.
  Our amendment also requires regular referrals from the U.S. 
Citizenship and Immigration Services, USCIS, to Immigration and Customs 
Enforcement, ICE, identifying fraudulent Social Security number use and 
fake documents presented during the E-Verify process for investigation 
and appropriate enforcement action. And it provides for DHS outreach 
and training to assist employers in preventing identity fraud and 
strengthening hiring practices. Only with all these tools and efforts 
can we expect to curtail the widespread use of identity fraud and help 
prevent unauthorized employment.
  The second focus of our amendment is to strengthen the identity 
authentication aspects of E-Verify and ensure that the system includes 
robust data privacy protections.
  To improve the accuracy of E-Verify, the underlying bill expands the 
use of a new photo-matching process called Photo Tool, which enables 
employers to match a new employee's photo ID with a digital E-Verify 
image. Currently, photo matching is limited to documents for which 
there is a verified photo in the E-Verify system. Unfortunately, for 
more than 60 percent of us--60 percent of Americans--there is no such 
data in a file because we do not have a passport, we do not have an 
immigration document. The bill, therefore, relies on States to give the 
Department of Homeland Security access to drivers' license photos. But 
based on our experience with the REAL ID Act

[[Page S5100]]

of 2005, very few States are likely to comply.
  There is no assurance that all or even most States will voluntarily 
participate in this kind of a program. So while the underlying bill 
provides some funding and grants to ease State compliance, we believe 
the amount they provide may understate the cost to most States.
  To help make Photo Tool actually work, our amendment doubles the 
available grant moneys for States that share department of motor 
vehicle information and photos, and it ensures the States are fully 
reimbursed for whatever their actual compliance and participation costs 
are, providing incentives for States to participate. It also clarifies 
that Photo Tool will be fully integrated into the E-Verify system and 
that it must be implemented in time for the rollout of the mandatory E-
Verify throughout the country. So it brings Photo Match into the E-
Verify system to provide for better enforcement at a time when some 
workers are going to be provided a legal status.
  Senator Tester and I want to be sure the bill's Photo Tool provisions 
do not lead to the establishment of a Federal database containing 
additional personal information and photographs of individual 
Americans. In fact, this will be another thing that is important to 
States because many States will only participate if assured the data 
they share will not be misused. So our amendment provides robust data 
privacy protections, one, clarifying that Photo Tool will be 
implemented so that E-Verify ``pings'' State DMV databases with 
individual queries rather than storing such State-provided 
information--so only when there is an individual request do they ping 
the DMV, and the DMV provides the photo; two, providing that the State 
DMV images and information may not be collected, may not be stored, may 
not be used for any other purpose other than for E-Verify, and may not 
be disseminated in any way beyond a response to an individual Photo-
Tool query; and, three, providing for periodic DHS audits to ensure 
that the Photo Tool data is not being collected, stored, or improperly 
disseminated.
  To make E-Verify work, we have to be certain employers are able to 
authenticate the true identify of new hires accurately, quickly, and 
easily. But in doing so through methods such as Photo Tool match, we 
must protect privacy and safeguard personal information. We have done 
that in this amendment.
  The third way our amendment strengthens E-Verify is by enhancing 
additional security measures for identity verification. For new 
employees whose identity cannot be verified using Photo Tool, which we 
talked about, the underlying bill provides for the Secretary of 
Homeland Security to develop ``additional security measures'' designed 
to authenticate identity. But there is no specified timeframe for 
implementation and little or no guidance in the way of standards for 
these additional security measures.
  Our amendment clarifies that the additional security measures must be 
integrated into the E-Verify system for workers who present a document 
without a corresponding Photo Tool image, that the timing of their 
implementation is tied to the rollout of mandatory E-Verify, and that 
failure to verify an identity with the additional security measures 
results in what is called a Further Action Notice in the E-Verify 
process, allowing employees to appeal through the established appeals 
process, where they have to prove they are authorized to work.
  Our amendment also specifies standards for design and operation of 
the additional security measures that are provided to include state-of-
the-art technology structured to provide prompt determinations and 
minimize employer and employee burdens. These specifications are 
designed to safeguard employee privacy and maximize the accuracy and 
efficiency of identity determinations. And the amendment permits 
employers to choose, with advance notice to DHS, to use the additional 
authentication measures on all new hires rather than only in cases 
where no digital image is available for a Photo Tool match. For a 
number of employers that is important.
  A fourth section of our amendment clarifies protections for employers 
who seek to comply with E-Verify procedures in good faith. The 
underlying bill mandates nationwide rollout of E-Verify and also 
increases employer sanctions--penalties for employers who do not comply 
with the mandated employment verification process. The bill's 
provisions seek to ensure that employers will not engage in unfair 
immigration-related employment practices, expanding both the grounds 
and penalties for such practices.
  Employers will therefore face the often challenging task of ensuring 
compliance with these new employment verification obligations while 
simultaneously avoiding an expanded set of unfair immigration-related 
employment practices.
  Our amendment simply provides that there is a safe harbor, a safe 
harbor protection to employers that comply in good faith with the 
requirements of the mandatory employment verification system. The 
amendment provides that the government must demonstrate by clear and 
convincing evidence that the employer had knowingly hired an 
unauthorized worker and employers that take reasonable steps in good 
faith to avoid unfair immigration-related employment practices are not 
subject to liability. Again, it is very important for employers to have 
this be a simple system and one where, if they follow the rules, they 
have a safe harbor.
  Finally, our amendment expedites the E-Verify mandatory rollout to 
American employers, while preserving the full 5-year timeline for the 
smallest businesses to make sure we begin rigorous enforcement efforts 
at the same time millions of current illegal immigrants begin to shift 
to a legal status.
  Our amendment ensures that most American jobs are covered by E-Verify 
as soon as it is feasible, applying to large employers as early as 2 
years after enactment, which is speeding up and expediting the coverage 
of E-Verify. It includes a new strengthened trigger to ensure timely 
and full implementation of mandatory E-Verify to all employers, 
including integrated Photo Tool and additional security measures prior 
to any adjustment to green card status. So it also has a stronger, more 
comprehensive trigger.
  In each of these ways, this amendment presents an opportunity for 
this Senate to put forth good policy that will make a real difference 
if implemented. The amendment's provisions were drafted with input from 
both Republicans and Democrats. They are the product of a lot of 
negotiations regarding business groups, labor interests. They were 
developed and vetted in consultation with the administration and the 
officials who will actually be tasked with developing and implementing 
this new system of mandatory employment verification.
  I am pleased Senator Tester has joined me in this effort. I know the 
provisions in our amendment enjoy broad bipartisan support in this 
Chamber and I think across the Nation. There is a recent poll, for 
instance, that showed that 82 percent of likely voters think businesses 
should be required to use E-Verify to determine if a new employee is 
legal.
  The question before this body is a simple one: Will our comprehensive 
immigration reforms include serious, meaningful, and effective E-Verify 
provisions that along with the border security measures will actually 
stem the tide of illegal immigration or will we fail to eliminate the 
jobs magnet that makes it harder to bring people out of the shadows and 
continue to provide a strong incentive for people to come here 
illegally.
  Today, I am simply asking for a debate and a vote on this critical 
amendment. My request does not have a political motivation. It is not 
about whether I support the legislation, although I will not be able to 
support it without it. It is about making this reform work. If this 
amendment is not adopted, I do not believe the reforms are going to 
work, and thus I would not be in a position to support final passage.
  I was there during the immigration commission that came up with the 
proposals that led to the 1986 law, which was the last comprehensive 
effort that Congress made to overhaul our immigration system. I was a 
young staffer on what was called the Select Commission on Immigration 
and Refugee Policy. I spent 2 years there working on

[[Page S5101]]

these issues and have followed them since and have been involved in 
immigration policy both in the Congress and in the administration since 
then.
  But back in 1986, I saw the work that went into crafting that 
legislation and the hope it gave everyone that we were actually going 
to solve the problem of illegal immigration. Then I saw those hopes 
dashed, as the reforms failed to work. They failed to address illegal 
immigration, in part, because they did not effectively implement the 
workplace enforcement provisions, despite, by the way, strong 
recommendations from the Commission on which I served. Congress 
simply--and the administration--subsequently did not implement the 
kinds of employer sanctions at the time and the kind of enforcement at 
the workplace that was necessary.
  Therefore, they left intact that jobs magnet that has driven so many 
to come here illegally in the past decades since. I do not want to see 
a repeat of that failure. That is why I cannot support the legislation 
without these changes.
  We have before us a historic opportunity. We have a real chance to 
fix this broken system and help curtail illegal immigration. It goes 
without saying that in the world of partisan politics, such 
opportunities are pretty rare. Time and again, we have seen reform 
efforts held hostage by politics. During the last few weeks, we 
have been reminded once again how difficult it is to achieve consensus 
on issues relating to immigration reform.

  But this system is broken, the legal system and the illegal system. 
So we ought to take this opportunity to fix it, but we have to really 
fix it. It is our responsibility to ensure that the reform legislation 
passed by the Senate includes policies that will actually work. We are 
not operating in a vacuum. Not only are the people of this country 
watching us, but the House of Representatives is watching too.
  To ensure that effective workplace enforcement provisions actually 
become law, E-Verify must be prominent in our efforts and central to 
our debate. We must make certain the House understands that a more 
effective E-Verify is perhaps the most crucial element of successful 
reform and that real workplace enforcement remains a priority during 
their deliberations, as well as an eventual conference between the 
House and Senate to work out a final package.
  A separate debate and a vote on this amendment is essential to 
sending that strong message to the House. They need to know one way or 
the other whether there is strong bipartisan support for E-Verify. I 
believe there will be. I believe, therefore, that maximizes the chance 
of it being in the final product. Politically, if supporters want this 
legislation to have a chance at passing the House and becoming law, we 
have to make sure it is focused on preventing new illegal immigration 
as much as it is on adjusting the status of those currently living in 
the shadows. I do not see how we can make that claim if E-Verify is not 
strengthened, if it is included only in passing, if turning off the 
jobs magnet is treated as an afterthought.
  That is the sort of thinking that doomed the 1986 reform. It is this 
sort of approach that may doom this reform before it has even had a 
chance to be enacted. I am certain everyone engaged in this debate has 
the best of intentions, but we have to ensure those intentions do not 
lead us down a path that we repeat the mistakes of 1986.
  That is why we have to have a vote on this amendment. The Portman-
Tester E-Verify strengthening amendment is critical to the success of 
this bill. I would like to be able to support reform of a broken 
immigration system. An immigration system that invites the best and 
brightest to come to our shores and seek a better life is what this 
country is all about. It is part of our promise. It is one of the 
reasons the United States has long been called a beacon of hope and 
opportunity for the rest of the world.
  But I have given assurances to my constituents, the same assurances I 
know many in this Chamber have made; that is, that I cannot vote for 
this legislation unless I am convinced it will work. I cannot support 
reform that does not adequately address the problem of illegal 
immigration and provides adequate enforcement; at the border, yes, but 
also at the workplace. Without a stronger E-Verify system, I am 
convinced this legislation will ultimately fail.
  I know many of my colleagues feel the same way. That is why I believe 
if this amendment were brought up for a vote, it would not only pass, 
but it would pass with a strong bipartisan vote. I am simply asking for 
that vote. Let's make strong and effective E-Verify part of immigration 
reform. Let's accomplish something of which we can be proud, something 
that fixes the problem this country has struggled with for decades, 
something we can hold up to the American people of how Washington is 
supposed to work, as proof the Republicans and Democrats, working 
together with mutual respect and in a bipartisan fashion, can achieve 
meaningful results.
  That is what this amendment is all about. I certainly hope it can 
become part of this legislation.
  I yield the floor.

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