[House Report 108-304]
[From the U.S. Government Publishing Office]



108th Congress                                            Rept. 108-304
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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



 
                   BASIC PILOT EXTENSION ACT OF 2003

                                _______
                                

October 7, 2003.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2359]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 2359) to extend the basic pilot program for employment 
eligibility verification, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     8
Committee Consideration..........................................     8
Vote of the Committee............................................     8
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Constitutional Authority Statement...............................    11
Section-by-Section Analysis and Discussion.......................    11
Performance Goals and Objectives.................................    12
Changes in Existing Law Made by the Bill, as Reported............    12
Committee Jurisdiction Letters...................................    14
Markup Transcript................................................    16
Dissenting Views.................................................    42

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Basic Pilot Extension Act of 2003''.

SEC. 2. EXTENSION OF PROGRAMS.

  (a) In General.--Section 401(b) of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
by striking ``6-year period'' and inserting ``11-year period''.
  (b) Effective Date.--The amendment made by subsection (a) shall take 
effect on the date of the enactment of this Act.

SEC. 3. USE OF EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM FOR STATUS 
                    INQUIRIES BY GOVERNMENT AGENCIES.

  (a) In General.--Section 642(c) of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (8 U.S.C. 1373(c)) is amended by 
adding at the end the following:
``An inquiry described in the preceding sentence may be submitted and 
responded to using the confirmation system established under section 
404.''.
  (b) Conforming Amendment.--Section 404(h) of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) 
is amended by adding at the end the following:
          ``(3) Status inquiries by government agencies.--
        Notwithstanding any other provision of this section, the 
        confirmation system may be used to submit, and to respond to, 
        inquiries described in section 642(c). In the case of such an 
        inquiry, citizenship or immigration status information may be 
        provided in addition to the identity and employment eligibility 
        information provided under subsections (b) and (c).''.

SEC. 4. OPERATION OF BASIC PILOT PROGRAM IN ALL STATES.

  (a) In General.--
          (1) Scope of operation of basic pilot program.--Section 
        401(c)(1) of the Illegal Immigration Reform and Immigrant 
        Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by 
        striking ``in, at'' and all that follows through the semicolon 
        at the end and inserting ``in all States;''.
          (2) Conforming amendment.--Section 402(c)(2)(B) of such Act 
        (8 U.S.C. 1324a note) is amended by striking ``electing--'' and 
        all that follows through ``(ii) the citizen'' and inserting 
        ``electing the citizen''.
  (b) Maintenance of List of Participants.--Section 402(c)(3) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 
U.S.C. 1324a note) is amended to read as follows:
          ``(3) Maintenance of list of participants.--The Secretary of 
        Homeland Security shall post on the Department of Homeland 
        Security's website the names of the participants in the basic 
        pilot program (described in section 403(a) of this 
        division).''.

                          Purpose and Summary

    H.R. 2359 extends for five years the operation of the pilot 
programs for employment eligibility verification instituted by 
the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 and allows employers in all states to opt to 
participate in the basic pilot program.

                Background and Need for the Legislation


                             I. BACKGROUND

    The Immigration Reform and Control Act of 1986 (``IRCA'') 
made it unlawful for employers to knowingly hire or employ 
aliens not eligible to work and required employers to check the 
identity and work eligibility documents of all new 
employees.\1\ IRCA was designed to end the ``job magnet'' for 
illegal aliens and thus finally control illegal immigration 
into the U.S.
---------------------------------------------------------------------------
    \1\ See, generally, section 274A of the Immigration and Nationality 
Act.
---------------------------------------------------------------------------
    If the documents provided by an employee reasonably appear 
on their face to be genuine, the employer has met its document 
review obligation. Certain documents, such as passports and 
resident alien cards, establish both identity and work 
eligibility. Others, such as most Social Security cards, 
establish work eligibility. Others, such as drivers' licenses, 
establish identity.
    If a new hire produces the required documents, the employer 
is not required to solicit the production of additional 
documents and the employee is not required to produce 
additional documents. In fact, an employer's request for more 
or different documents than are required, or refusal to honor 
documents that reasonably appear to be genuine, shall be 
treated as an unfair immigration-related employment practice if 
made for the purpose or with the intent of discriminating 
against an individual because of such individual's national 
origin or citizenship status.\2\
---------------------------------------------------------------------------
    \2\ See generally, section 274B of the INA.
---------------------------------------------------------------------------
    The easy availability of counterfeit documents has made a 
mockery of IRCA. Fake documents are produced by the millions 
and can be obtained cheaply.\3\ Thus, the IRCA system both 
benefits unscrupulous employers who do not mind hiring illegal 
aliens but want to show that they have met legal requirements 
and harms employers who do not want to hire illegal aliens but 
have no choice but to accept documents they know have a good 
likelihood of being counterfeit.
---------------------------------------------------------------------------
    \3\ See e.g., Verification of Eligibility for Employment and 
Benefits: Hearing Before the Subcomm. on Immigration and Claims of the 
House Comm. on the Judiciary, 104th Cong., 1st Sess. (March 30, 1995).
---------------------------------------------------------------------------

                      II. THE BASIC PILOT PROGRAM

    In response to the deficiencies of IRCA, title IV of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 (``IIRIRA'') instituted three employment eligibility 
confirmation pilot programs for volunteer employers that were 
to last for four years. Under the ``basic pilot program,'' the 
proffered Social Security numbers and alien identification 
numbers of new hires would be checked against Social Security 
Administration and Immigration and Naturalization Service 
records in order to weed out fraudulent numbers and thus to 
ensure that new hires are genuinely eligible to work. The pilot 
is available to employers having locations in California, 
Florida, Illinois, Nebraska, New York, and Texas. Approximately 
11,787 worksites are currently participating in the pilot. 
Public Law 107-128 extended the authorization of the basic 
pilot for an additional two years, until this November.
    The pilot works as follows:\4\
---------------------------------------------------------------------------
    \4\ See generally, sections 403(a) and 404 of IIRIRA.
---------------------------------------------------------------------------
     As under current law, once an applicant has 
accepted a job offer, he or she will present certain documents 
to the employer. The employer, within three days of the hire, 
must examine the documents to determine whether they reasonably 
appear on their face to begenuine and complete an I-9 form 
attesting to this examination.
     The employer will have three days from the date of 
hire to make an inquiry by phone or other electronic means to 
the confirmation office established to run the mechanism. If 
the new hire claims to be a citizen, the employer will transmit 
his or her name and Social Security number. If the new hire 
claims to be a non-citizen, the employer will transmit his or 
her name, INS (or Department of Homeland Security)-issued 
number, and Social Security number.
     The confirmation office will compare the name and 
Social Security number provided against information contained 
in Social Security Administration records and, if necessary, 
will compare the name and INS or DHS-issued number provided 
against information contained in DHS records.
     If in checking the records, the confirmation 
office ascertains that the new hire is eligible to work, the 
operator will within three days so inform the employer and 
provide a confirmation number.
     If the confirmation office cannot confirm the work 
eligibility of the new hire, it will within three days so 
inform the employer of a tentative nonconfirmation and provide 
a tentative nonconfirmation number.
     If the new hire wishes to contest a tentative 
nonconfirmation, secondary verification will be undertaken. 
Secondary verification is an expedited procedure set up to 
confirm the validity of information contained in the government 
records and provided by the new hire. Under this process, the 
new hire will typically contact or visit the SSA or DHS to see 
why the government records disagree with the information he or 
she has provided. If the new hire requests secondary 
verification, he or she cannot be fired on the basis of the 
tentative nonconfirmation.
     If the discrepancy can be reconciled within ten 
days, then confirmation of work eligibility and a confirmation 
number will be given to the employer by the end of this period.
     If the discrepancy cannot be reconciled within ten 
days, final denial of confirmation and a final nonconfirmation 
number will be given by the end of this period. The employer 
then has two options:
          The employer can dismiss the new hire as being 
        ineligible to work in the United States.
          The employer can continue to employ the new hire. The 
        employer must notify DHS of this decision. If action is 
        brought by the government, the employer has the burden 
        of proof in showing the new hire is eligible to work. 
        If the employer fails to so prove, the employer will be 
        deemed to have knowingly hired an illegal alien.
    The SSA and the DHS agree as part of the pilot to safeguard 
the information provided to them by employers and to limit 
access to the information as appropriate under law. An employer 
must agree not to use the pilot for pre-employment screening of 
job applicants or for support of any unlawful employment 
practice, not to verify selectively, and to ensure that the 
information it receives from the government is used only to 
confirm employment eligibility and is not otherwise 
disseminated.
    Section 405 of IIRIRA required the INS to submit to the 
House and Senate Judiciary Committees a report on the basic 
pilot program after the end of the third and fourth years the 
program was in effect. The INS selected the Institute for 
Survey Research at Temple University and Westat to prepare the 
report, which was submitted to the INS in December of 2001.
    The report found that out of 364,987 total transactions 
between November 1997 and December 1999, 269,269 (74%) of 
aliens were found to be work-authorized after a check of SSA 
records and another 48,067 (13%) were found to be work-
authorized after a check of INS records; in 32,114 cases (9%), 
the SSA issued a final nonconfirmation, and in 4,121 (1%) 
cases, the INS issued a final nonconfirmation.\5\ Ninety 
percent of new hires found to be work authorized were 
immediately confirmed by the confirmation system.\6\ In only 
about 4% of total transactions did new hires contact the Social 
Security Administration or INS to resolve problems with their 
work authorization status.\7\ Of those employees who did 
contact one of the agencies, 99% were found to be work-
authorized.\8\
---------------------------------------------------------------------------
    \5\ INS Basic Pilot Summary Report at 24.
    \6\ Id. at 16.
    \7\ Id. at 34.
    \8\ Id. at 21.
---------------------------------------------------------------------------
    The report found that ``an overwhelming majority of 
employers participating found the basic pilot program to be an 
effective and reliable tool for employment verification'' \9\--
96% of employers found it to be an effective tool for 
employment verification; \10\ and 94% of employers believed it 
to be more reliable than the IRCA-required document check.\11\ 
The percentage of employers who found the employment 
eligibility verification process for new hires to be ``not at 
all burdensome'' increased from 36% before they participated in 
the pilot to 60% after they started participating, because of 
the greater certainty it provided them.\12\ 83% of employers 
reported that the participating in the pilot reduced 
uncertainty regarding work authorization.\13\
---------------------------------------------------------------------------
    \9\ Id. at v.
    \10\ Id. at 16.
    \11\ Id.
    \12\ Id. at 33.
    \13\ Id.
---------------------------------------------------------------------------
    ``Some unauthorized workers were undoubtedly deterred from 
applying to pilot employers; however, the evaluation cannot 
provide good estimates of how often this occurs.'' \14\ The 
report found that 64% of employers agreed that the number of 
unauthorized workers who applied for jobs decreased when the 
basic pilot system was used.\15\
---------------------------------------------------------------------------
    \14\ Id. at 23.
    \15\ Id. at 25.
---------------------------------------------------------------------------
    ``[E]mployees were largely satisfied with the services 
provided by INS and the Social Security Administration.'' \16\ 
Of the employees who contacted local SSA or INS offices as part 
of the verification process, 95% who visited SSA offices said 
that their work authorization problem was resolved in a timely, 
courteous and efficient manner, as did 90% who visited INS 
offices.\17\ Only four aliens filed complaints with the Office 
of Special Counsel regarding federal agencies.\18\
---------------------------------------------------------------------------
    \16\ Id. at 17.
    \17\ Id. at 16.
    \18\ Id. at 17.
---------------------------------------------------------------------------
    ``Because the evidence points to both decreases and 
increases in discrimination caused by the Basic Pilot program, 
the evaluation could not determine whether the net effect of 
the program was discriminatory.'' \19\ The report found that 
45% of participating employers interviewed said that the 
program made them more willing to hire immigrants (while 5% 
said it made them less willing).\20\ However, 30% of 
participating employers reported that they limited work 
assignments of new hires who had been tentatively 
nonconfirmed.\21\ Among the 67 interviewed employees who 
contested tentative nonconfirmations, ``45% reported one or 
more of the following adverse actions: were not allowed to 
continue working while they straightened out their records, had 
their pay cut, or had their job training delayed.'' \22\ The 
report also found that ``although failure to comply with the 
[memorandum of understanding] provision prohibiting employers 
from prescreening employees leads to discrimination, the level 
of discrimination does not necessarily increase due to the 
pilot, since non-pilot employers may also be prescreening. * * 
* The evaluation found no evidence that Basic Pilot employers 
were using the pilot to selectively verify new employees on the 
basis of citizenship .* * *'' \23\
---------------------------------------------------------------------------
    \19\ Id. at vi.
    \20\ Id. at 28.
    \21\ Id. at 29.
    \22\ Id. at 19.
    \23\ Id. at 29.
---------------------------------------------------------------------------
    As to database problems:

          Most Federal officials interviewed agreed that the 
        efficient operation of the pilot program was hindered 
        by inaccuracies and outdated information in INS 
        databases. One major contributory problem identified by 
        INS officials is loss of data and delays in data entry 
        for persons recently issued a new or replacement [work] 
        authorization document * * * and for new immigrants and 
        refugees. * * * INS is addressing its data entry delays 
        through both policy and operational changes that are 
        intended to significantly reduce the delay between the 
        time a person becomes authorized to work and when the 
        information is entered into the INS database and INS 
        documentation is issued. Although some improvements 
        have been made since the pilot evaluation concluded, 
        others will take longer to implement.'' \24\

    \24\ Id. at 17.
---------------------------------------------------------------------------
    The report estimated that the total annual cost of the 
current pilot for the federal government, participating 
employers, and newly hired employees, is $6 million, and that 
the cost would be $11 million for a nationwide voluntary 
program and $11.7 billion for a nationwide mandatory 
program.\25\ The report found that the ``Social Security 
Administration and INS are currently capable of handling either 
of the voluntary programs described here [a voluntary program 
open to employers nationwide or an enhanced voluntary program 
in selected states], or some other program of limited scope.'' 
\26\ However, it recommended against ``a mandatory or large-
scale program.'' \27\
---------------------------------------------------------------------------
    \25\ Id. at 37.
    \26\ Id. at 38.
    \27\ Id. at 41.
---------------------------------------------------------------------------
    On June 10, 2003, the Committee received a letter from the 
American Meat Institute, Cargill, Inc., ConAgra Foods, Inc., 
the National Chicken Council, the National Meat Canners 
Association, the National Turkey Federation, Premium Standard 
Farms, Seaboard Corp., Smithfield Foods, Inc., and Tyson Foods, 
Inc., ``asking for your support * * * in passing H.R. 2359. * * 
* The Basic Pilot is the best tool employers have to make sure 
they are not hiring unauthorized aliens. * * * Employers have 
embraced the tools granted by Congress, and Congress should 
grant a continuation of [the] pilot Employment Verification 
program by adopting this bill quickly.''

                             III. H.R. 2359

    H.R. 2359 as amended by the Judiciary Committee would 
extend operation of the pilot programs for an additional 5 
years.
    Section 401(c)(1) of IIRIRA provided that the basic pilot 
program must be operated in, at a minimum, 5 of the 7 states 
with the highest estimated population of aliens who are not 
lawfully present in the United States. H.R. 2359 modifies 
IIRIRA to allow any employer to chose to participate in the 
pilot program, regardless of what state it is located in. It is 
time to allow volunteer employers throughout the nation to 
participate in the pilot. The pilot program study concluded 
that ``the Social Security Administration and INS are currently 
capable of handling'' a nationwide voluntary program. The basic 
pilot program has been operating very successfully for the past 
six years. As stated, 96% of participating employers believed 
it to be an effective tool for employment verification. In 
addition, 94% of employers believed it to be more reliable than 
the document check required by IRCA.
    Also, ``employees were largely satisfied with the services 
provided by INS and the Social Security Administration.'' Now, 
the pilot program can and should be improved. DHS must 
reemphasize to participating employers that they cannot take 
adverse actions against new employees tentatively found 
ineligible to work until there has been a final confirmation. 
And DHS must improve its databases, especially in imputing data 
for persons recently issued a work authorization document and 
for new immigrants and refugees. However, the report found that 
``INS is [already] addressing its data entry delays through 
both policy and operational changes that are intended to 
significantly reduce the delay between the time a person 
becomes authorized to work and when the information is entered 
into the INS database and INS documentation is issued.''
    The bill also provides that inquiries by federal, state or 
local government agencies under section 642(c) of IIRIRA may be 
made using the mechanism of the pilot programs. Section 642(c) 
provides that the Department of Homeland Security shall respond 
to an inquiry by a Federal, State, or local government agency, 
seeking to verify or ascertain the citizenship or immigration 
status of any individual within the jurisdiction of the agency 
for any purpose authorized by law, by providing the requested 
verification or status information. Implementation of this 
requirement has been hampered by lack of a defined system that 
verifies citizenship and immigration status. Currently several 
types of agencies, including departments of motor vehicles, 
professional licensing bureaus, and agencies providing 
clearances and badges to work in sensitive or secure areas, 
have sought to enter into agreements with the SAVE Program 
(which verifies immigration status for certain federal, state, 
and local government agencies that administer public benefit 
programs) to verify the status of individuals. These agencies 
can only verify noncitizen and naturalized applicants through 
the SAVE system. Although they can enter into separate 
verification arrangements with SSA, these additional 
verification steps are time consuming and duplicative. 
Moreover, SSA does not have the work authorization and 
citizenship status of all persons. Using a more comprehensive 
verification program, like the basic pilot, where all 
applicants are verified electronically through a single query 
that checks both SSA and, if necessary, DHS, databases, is 
clearly more efficient for these agencies. Furthermore, by 
verifying all applicants rather than only those declaring 
noncitizen status, the problem of false attestation to U.S. 
citizenship is largely eliminated, thus resulting in more 
accurate verification.

                                Hearings

    No hearings were held on H.R. 2359.

                        Committee Consideration

    On September 24, 2003, the Committee met in open session 
and ordered favorably reported the bill H.R. 2359 with an 
amendment by a vote of 18 yeas to 8 nays, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following roll call vote occurred during the Committee's 
consideration of H.R. 2359.


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2359, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                   October 3, 2003.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2359, the Basic 
Pilot Extension Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                               Douglas Holtz-Eakin.
    Enclosure.

H.R. 2359--Basic Pilot Extension Act of 2003

    CBO estimates that implementing H.R. 2359 would cost around 
$2 million a year over the 2004-2008 period, assuming the 
availability of appropriations. Enacting the bill would not 
affect direct spending or receipts. H.R. 2359 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal government.
    The Bureau of Citizenship and Immigration Services (BCIS) 
and the Social Security Administration (SSA) administer three 
pilot programs to assist employers in confirming the 
eligibility of prospective employees to work in the United 
States. The programs provide employers with software, training, 
and access to BCIS and SSA databases to determine work 
eligibility. Under current law, the major pilot program will 
end in 2003, while the two other programs will terminate in 
2005. H.R. 2359 would extend each program by five years and 
would expand the major pilot program to all 50 states 
(currently, it is offered in only six states).
    According to the BCIS, it costs $600,000 a year to operate 
the programs, mostly for the major pilot program. Implementing 
H.R. 2359 would extend the major pilot program through the end 
of fiscal year 2008 and would extend the other two programs 
until the middle of fiscal year 2010. Thus, CBO estimates that 
extending the current programs would cost about $600,000 a year 
over the 2004-2008 period.
    The major pilot program is currently available to employers 
in California, Florida, New York, Texas, Illinois, and 
Nebraska. These states contain more than one third of the 
nation's businesses. According to BCIS, expanding the major 
pilot program to all 50 states would cost about $1 million 
annually. In total, implementing H.R. 2359 would cost around $2 
million a year, subject to the availability of appropriations.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8 of the Constitution.

               Section-by-Section Analysis and Discussion


Section 1. Short title

    The short title of the bill is the ``Basic Pilot Extension 
Act of 2003''.

Section 2. Extension of programs

    Subsection (a) amends section 401(b) of the Immigration and 
Nationality Act to extend the length of the basic pilot program 
(and the other pilot programs contained in section 401(c)) for 
additional five years.
    Section (b) provides that the amendment made by subsection 
(a) shall take effect on the date of enactment.

Section 3. Use of employment eligibility confirmation system for status 
        inquiries by government agencies

    Subsection (a) amends section 642(c) of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 by 
providing that inquiries made pursuant to section 642(c) may be 
submitted and responded to using the basic pilot program's 
confirmation system.
    Subsection (b) amends section 404(h) of IIRIRA to specify 
that the basic pilot program's confirmation system can respond 
to inquiries described in section 642(b) of IIRIRA and may 
provide citizenship and immigration status information in 
addition to identity and employment eligibility information.

Section 4. Operation of basic pilot program in all states

    Subsection (a) amends section 401(c)(1) of IIRIRA to 
provide that the basic pilot program shall operate in all 
states.
    Subsection (b) amends section 402(c) of IIRIRA to provide 
that the Department of Homeland Security may not reject for a 
professed lack or resources an employer's request to 
participate in the basic pilot program or limit the program's 
applicability to certain states or places.

                    Performance Goals and Objectives

    H.R. 2359 does not authorize funding. Therefore, clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

  ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996


DIVISION C--ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT 
                                OF 1996

SEC. 1. SHORT TITLE OF DIVISION; AMENDMENTS TO IMMIGRATION AND 
                    NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH 
                    ACT; TABLE OF CONTENTS OF DIVISION; SEVERABILITY.

  (a) Short Title.--This division may be cited as the ``Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996''.

           *       *       *       *       *       *       *


        TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT

   Subtitle A--Pilot Programs for Employment Eligibility Confirmation

SEC. 401. ESTABLISHMENT OF PROGRAMS.

  (a) * * *
  (b) Implementation Deadline; Termination.--The Attorney 
General shall implement the pilot programs in a manner that 
permits persons and other entities to have elections under 
section 402 of this division made and in effect no later than 1 
year after the date of the enactment of this Act. Unless the 
Congress otherwise provides, the Attorney General shall 
terminate a pilot program at the end of the [6-year period] 11-
year period beginning on the first day the pilot program is in 
effect.
  (c) Scope of Operation of Pilot Programs.--The Attorney 
General shall provide for the operation--
          (1) of the basic pilot program (described in section 
        403(a) of this division) [in, at a minimum, 5 of the 7 
        States with the highest estimated population of aliens 
        who are not lawfully present in the United States;] in 
        all States;

           *       *       *       *       *       *       *


SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.

  (a) * * *

           *       *       *       *       *       *       *

  (c) General Terms of Elections.--
          (1) * * *
          (2) Scope of election.--
                  (A) * * *
                  (B) Application of programs in non-pilot 
                program states.--In addition, the Attorney 
                General may permit a person or entity 
                [electing--
                          [(i) the basic pilot program 
                        (described in section 403(a) of this 
                        division) to provide that the election 
                        applies to its hiring (or recruitment 
                        or referral) in one or more States or 
                        places of hiring (or recruitment or 
                        referral) in which the pilot program is 
                        not otherwise operating, or
                          [(ii) the citizen] electing the 
                        citizen attestation pilot program 
                        (described in 403(b) of this division) 
                        or the machine-readable-document pilot 
                        program (described in section 403(c) of 
                        this division) to provide that the 
                        election applies to its hiring (or 
                        recruitment or referral) in one or more 
                        States or places of hiring (or 
                        recruitment or referral) in which the 
                        pilot program is not otherwise 
                        operating but only if such States meet 
                        the requirements of 403(b)(2)(A) and 
                        403(c)(2) of this division, 
                        respectively.
          [(3) Acceptance and rejection of elections.--
                  [(A) In general.--Except as provided in 
                subparagraph (B), the Attorney General shall 
                accept all elections made under subsection (a).
                  [(B) Rejection of elections.--The Attorney 
                General may reject an election by a person or 
                other entity under this section or limit its 
                applicability to certain States or places of 
                hiring (or recruitment or referral) if the 
                Attorney General has determined that there are 
                insufficient resources to provide appropriate 
                services under a pilot program for the person's 
                or entity's hiring (or recruitment or referral) 
                in any or all States or places of hiring.]
          (3) Maintenance of list of participants.--The 
        Secretary of Homeland Security shall post on the 
        Department of Homeland Security's website the names of 
        the participants in the basic pilot program (described 
        in section 403(a) of this division).

           *       *       *       *       *       *       *


SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.

  (a) * * *

           *       *       *       *       *       *       *

  (h) Limitation on Use of the Confirmation System and Any 
Related Systems.--
          (1) * * *

           *       *       *       *       *       *       *

          (3) Status inquiries by government agencies.--
        Notwithstanding any other provision of this section, 
        the confirmation system may be used to submit, and to 
        respond to, inquiries described in section 642(c). In 
        the case of such an inquiry, citizenship or immigration 
        status information may be provided in addition to the 
        identity and employment eligibility information 
        provided under subsections (b) and (c).

           *       *       *       *       *       *       *


TITLE VI--MISCELLANEOUS PROVISIONS

           *       *       *       *       *       *       *


Subtitle D--Other Provisions

           *       *       *       *       *       *       *


SEC. 642. COMMUNICATION BETWEEN GOVERNMENT AGENCIES AND THE IMMIGRATION 
                    AND NATURALIZATION SERVICE.

  (a) * * *

           *       *       *       *       *       *       *

  (c) Obligation to Respond to Inquiries.--The Immigration and 
Naturalization Service shall respond to an inquiry by a 
Federal, State, or local government agency, seeking to verify 
or ascertain the citizenship or immigration status of any 
individual within the jurisdiction of the agency for any 
purpose authorized by law, by providing the requested 
verification or status information. An inquiry described in the 
preceding sentence may be submitted and responded to using the 
confirmation system established under section 404.

           *       *       *       *       *       *       *


                     Committee Jurisdiction Letters

          Committee on Education and the Workforce,
                                  House of Representatives,
                                   Washington, DC, October 7, 2003.
Hon. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
Rayburn HOB, Washington, DC.

Attn: Joseph Gibson

    Dear Chairman Sensenbrenner: This letter is to confirm our 
agreement regarding H.R. 2359, ``Basic Pilot Extension Act of 
2003,'' which was introduced by Rep. Ken Calvert and referred 
to the Committee on the Judiciary and in addition the Committee 
on Education and the Workforce. This bill would extend the 
authorization of the pilot programs for employment eligibility 
verification instituted by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996. The basic pilot is set to 
expire next month, November, 2003; the bill would extend the 
pilot for five years. Amendments included in your Committee 
would expand the pilot to allow employers in all States to 
participate in the program.
    I support the five year authorization extension of the 
basic pilot program. I do have concerns that other matters may 
delay the legislation needed to extend the basic pilot program 
and stand ready to expedite those provisions. However, given 
this program's importance to employers and employees who are 
currently participating in it and its impending expiration, I 
do not intend to hold a markup of this legislation.
    I do so with the understanding that this procedural route 
should not be construed to prejudice the jurisdictional 
interest and prerogatives of the Committee on Education and the 
Workforce on these provisions or any other similar legislation 
and will not be considered as precedent for consideration of 
matters of jurisdictional interest to my Committee in the 
future. I would also expect your support in my request to the 
Speaker for the appointment of conferees from my Committee with 
respect to matters within the jurisdiction of my Committee 
should a conference with the Senate be convened on this or 
similar legislation.
    I thank you for working with me regarding this matter. If 
you have questions regarding this matter, please do not 
hesitate to call me.
            Sincerely,
                                              John Boehner,
                                                          Chairman.
                                ------                                

                          House of Representatives,
                                Committee on the Judiciary,
                                   Washington, DC, October 7, 2003.
Hon. John Boehner,
Chairman, Committee on Education and the Workforce,
Rayburn Building, Washington, DC.
    Dear Chairman Boehner: Thank you for your willingness to 
waive consideration of H.R. 2359, the ``Basic Pilot Extension 
Act of 2003.''
    I agree that by waiving consideration of H.R. 2359, the 
Committee on Education and the Workforce in no way alters or 
waives its jurisdiction over the matters within the bill that 
fall within its Rule X jurisdiction. I further agree that I 
will support your request to the Speaker for conferees should 
this bill or similar legislation go to conference.
    I will place a copy of your letter and this response in the 
Committee on the Judiciary's report on H.R. 2359 and in the 
Congressional Record during floor debate on H.R. 2359. I 
appreciate your cooperation in this matter.
            Sincerely,
                               F. James Sensenbrenner, Jr.,
                                                          Chairman.

  Markup Transcript, Business Meeting, Wednesday, September 24, 2003, 
  House of Representatives, Committee on the Judiciary, Washington, DC

    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 2359, the Basic Pilot Extension Act of 2003.
    For purposes of markup, I move its favorable recommendation 
to the House. Without objection, the bill will be considered as 
read and open for amendment at any point.


    The Chair recognizes the gentleman from Indian, Mr. 
Hostettler, for five minutes to explain the bill.
    Mr. Hostettler. Thank you, Mr. Chairman.
    Mr. Chairman, the Immigration Reform and Control Act of 
1986, or IRCA, made it unlawful for employers to knowingly hire 
or employ aliens not eligible to work and required employers to 
check the identity and work eligibility documents of all new 
employees.
    The easy availability of counterfeit documents has made a 
mockery of IRCA. Fake documents are produced by the millions 
and can be obtained cheaply. Thus, the IRCA system both 
benefits unscrupulous employers who do not mind hiring illegal 
aliens but want to show they have met legal requirements, and 
harms employers who don't want to hire illegal aliens but have 
no choice but to accept documents they know have a good 
likelihood of being counterfeit.
    Title IV of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 instituted three employment 
eligibility confirmation pilot programs for volunteer employers 
that were to last for four years. Under the basic pilot, the 
Social Security numbers and alien identification numbers of new 
hires are checked against Social Security Administration and 
Department of Homeland Security records in order to weed out 
fraudulent numbers and, thus, to ensure that new hires are 
genuinely eligible to work.
    The pilot is currently available to employers having 
locations in California, Florida, Illinois, Nebraska, New York 
and Texas. Approximately 11,787 worksites are currently 
participating in the pilot. The SSA and the Department of 
Homeland Security agree as part of the pilot to safeguard the 
information provided to them by employers and to limit access 
to the information, as appropriate.
    An employer must agree not to use the pilot for pre-
employment screening of job applicants or for support of any 
unlawful employment practice, not to verify selectively, and to 
ensure that the information it receives from the government is 
used only to confirm employment eligibility and is not 
otherwise disseminated.
    In the last Congress we extended the authorization of the 
pilot program through this November. H.R. 2359, introduced by 
our colleague; Ken Calvert, would extend operation of the pilot 
programs for an additional five years. A 2001 study on the 
implementation of the pilot program found that 96 percent of 
participating employers believed the pilot to be an effective 
and reliable tool for employment verification. The study 
recommended the continuation of the pilot.
    On June 10, 2003, I received a letter from the American 
Meat Institute, the National Chicken Council, the National 
Turkey Federation, among other trade associations and companies 
in the food processing industry, asking for my support in 
passing H.R. 2359.
    ``The basic pilot is the best tool employers have to make 
sure they are not hiring unauthorized aliens. Employers have 
embraced the tools granted by Congress and Congress should 
grant a continuation of the pilot employment verification 
program by adopting this bill quickly.'' End quote.
    At the request of the Department of Homeland Security, H.R. 
2359 would also provide that inquiries by Federal, State or 
local government agencies seeking to verify or ascertain the 
citizenship or immigration status of any individual within the 
jurisdiction of the agency for any purpose authorized by law 
may be made using the mechanism of the pilot program.
    Mr. Chairman, I urge my colleagues to support H.R. 2359 and 
yield back the balance of my time.
    Chairman Sensenbrenner. Who wishes to give the minority 
opening statement? The gentlewoman from California.
    Ms. Lofgren. No, I don't have an opening statement. I 
have----
    Chairman Sensenbrenner. Without objection, all members' 
opening statements will appear in the record at this point.
    [The statements follow:]

               Statement of Congressman John Conyers, Jr.

    The Basic Pilot Extension Act of 2003, H.R. 2359, would extend for 
an additional five years the Basic Pilot Program to electronically 
verify the employment authorization of newly hired employees. The Basic 
Pilot program has been in effect since 1996 and now operates in six 
states.
    I support extending the Basic Pilot Program for employment 
eligibility verification. However in its current form, this bill goes 
much further than a simple extension. In fact, section three would 
permit states and local governments to use the Basic Pilot confirmation 
system as a national registry of all U.S. citizens and immigrants. This 
would expand the pilot program far beyond the purview of employment and 
dangerously close to a national ID program--with no privacy protections 
or safeguards against abuse by individuals within state and local 
governments.
    Congress requested a report on the Basic Pilot program which we did 
not receive before the last time we considered an extension of the 
program in this committee. Now that we have received it, two years 
late, it appears to recommend that the program should not be expanded 
beyond the pilot--both because there are flaws in the program and 
because an expansion would be expensive. In particular, the report 
points out that the efficient operation of the pilot program was 
hindered by inaccurate and outdated information in INS databases and 
that there have been complaints alleging actual or potential harm to 
individuals.
    Before we consider expanding this program far beyond its originally 
intended function, we must first examine whether it is accomplishing 
its prescribed goal and extending the pilot program for an additional 
five years will give us time to assess the deficiencies outlined in the 
report. Any expansion of the scope of the information sharing in the 
program would be a major change to existing law and should be carefully 
studied and considered on its own merits.
                                 ______
                                 

             Statement of Congresswoman Sheila Jackson Lee

    The Basic Pilot is a temporary, voluntary program for 
electronically verifying the employment authorization of newly hired 
employees. The Basic Pilot Extension Act of 2003, H.R. 2359, would 
extend the program for another 5 years.
    The primary goal of employment verification is to ensure that 
American employers hire workers who are authorized to work in the 
United States. Studies by the General Accounting Office (GAO), the 
Commission on Immigration Reform, and others have found that the former 
Immigration and Naturalization Service (INS) Form I-9 paper employment 
verification system is confusing and easily circumvented. The goal of 
the Basic Pilot is to develop new employment verification procedures 
that will improve on the Form I-9 system by reducing false claims to 
U.S. citizenship and document fraud, discrimination, violations of 
civil liberties and privacy, and employer burden.
    INS and the Social Security Administration (SSA) implemented the 
Basic Pilot in November 1997, in California, Florida, Illinois, New 
York, and Texas. Nebraska was added on March 1999, to assist employers 
in the meat packing industry.
    Under the Basic Pilot, the employer examines the documents of a 
newly hired employee within 3 days of the date of which employment 
commences and reports the pertinent information to an office at the 
Social Security Administration (SSA). The SSA office compares the 
information provided by the newly hired employee with Social Security 
records. In the case of a foreign worker, the Social Security office 
will then pass the information on to a designated office at the Bureau 
of Citizenship and Immigration Services (BCIS). The BCIS office, which 
is taking the place of the former INS, compares the data provided by 
the employee with immigration records to determine whether he or she is 
authorized to work in the United States.
    If BCIS confirms that a newly hired alien employee is authorized to 
work in the United States, it issues a confirmation number. If BCIS 
determines instead that the new employee is not authorized for 
employment in the United States, it issues a tentative nonconfirmation 
number. Procedures are available to permit either the employer or the 
employee to contest a tentative nonconfirmation before it becomes 
final.
    The Basic Pilot is an effective employee verification program that 
makes it easier and safer for employers to hire foreign workers, which 
makes it easier for lawful foreign workers to find employment. A 
participating employer does not have to worry about sanctions for 
hiring an illegal worker. Under the program, the determination of 
whether an alien employee has valid work authorization is made by BCIS.
    The Basic Pilot has received support from the U.S. Department of 
Agriculture (USDA). The USDA's recent security guidelines for Food 
Safety Inspection Services include a recommendation that employers in 
the meat industry should consider participating in the Basic Pilot.
    Notwithstanding the fact that I favor the Basic Pilot, I have 
concerns about problems that have been encountered inimplementing it. 
Section 405 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) required the Attorney General to 
submit a report on the Basic Pilot to the House and Senate Judiciary 
Committees. The Attorney General selected the Institute for Survey 
Research at Temple University to do the study necessary for the 
preparation of this report. The study was done before the Basic Pilot 
responsibilities of former INS were assumed by BCIS. The Institute 
identified significant but hopefully temporary areas of concern in the 
way the Basic Pilot has been implemented, such as the following 
examples:
    1. The efficient operation of the pilot program was hindered by 
inaccuracies and outdated information in INS databases.
    2. One-third of the employers said they had encountered 
difficulties in setting up the Basic Pilot program. Most of the 
problems involved modem connection, software, hardware, and telephone 
lines. Many employers also mentioned having these problems when the 
system was online.
    3. Approximately 39% of employers reported that SSA never or only 
sometimes returned calls promptly and 43% reported similar difficulties 
with INS.
    4. Improvements need to be incorporated into the Basic Pilot to 
reduce discretion in how employers use the system and in the extent to 
which they follow pilot procedures designed to protect employee rights.
    5. Procedural changes are needed to increase checks on name 
variations and to perform edit and consistency checks of the data 
entered by the employer.
    6. A complaint about the Basic Pilot that was mentioned by 16% of 
employers is that at times the number of employees hired is so great 
that it is impossible to submit the information required by the 
deadline of 3 business days.
    Notwithstanding these difficulties, the Basic Pilot is a good, 
effective program, and it is the best tool available for employers to 
ensure that their new hires are legally eligible for employment in the 
United States. In addition, the memorandum of understanding that 
employers and the government enter into for participating in the 
program ensures that the employers will use the program uniformly and 
without discrimination. I will support extending the Basic Pilot 
program, but I have reservations about the desirability of extending it 
for 5 years without an indication that the problems identified by the 
Institute for Survey Research have been resolved. For the same reason, 
I am opposed to expanding the program now. I agree with the Institute's 
recommendation that the Basic Pilot is not ready for larger-scale 
implementation at this time.
    Thank you.
                                 ______
                                 

                  Statement of Congressman Steve King

    Chairman Sensenbrenner, thank you for holding this markup today. 
Verification of employment eligibility is essential to enforcing our 
immigration laws. I understand that the bill we are considering today 
extends the current, basic pilot program. This is a step in the right 
direction. I would like to see this pilot program opened to employers 
in all states who would like to participate. And, although the program 
we are considering today is voluntary, we should work to make 
employment eligibility verification mandatory for all employers.
    Employment verification is good for business. We all remember the 
effect of the terrorist attacks of September 11th on American 
businesses and our economy. Wall Street was shuttered for several days, 
the market dropped markedly, businesses were wiped out, companies laid 
off thousands of workers, and the lives of hundreds of thousands of 
Americans were disrupted. There is no worse economic environment for 
business and workers than one without public safety and security.
    Employers who break the law and hire illegal aliens impose costs on 
our society, including, significant lost federal withholding for ``off 
the books'' paychecks, with taxpayers and honest employers picking up 
the costs of public health care, workers compensation and unemployment 
insurance, as well as Social Security and Medicare contributions. If 
illegal immigration is not stopped, our society must bear the effects 
of mass immigration on congestion, overcrowded schools, low wages and 
other quality-of-life measures.
    Finally, I am concerned about the plight of honest employers who 
follow the law, while their unscrupulous competitors gain an unfair 
competitive advantage by knowingly hiring illegal workers. We must 
enforce our immigration laws to level the playing field. Ensuring that 
employers do not violate the law by hiring illegal aliens is a key 
component of an overall common sense immigration policy.

    Chairman Sensenbrenner. Are there amendments?
    Mr. Hostettler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Indiana.
    Mr. Hostettler. Mr. Chairman, I have an amendment at the 
desk.
    [The amendment of Mr. Hostettler follows:]
    
    
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 2359, offered by Mr. 
Hostettler.
    Page 3, after line 4, insert the following----
    Mr. Hostettler. Mr. Chairman, I ask unanimous consent that 
the amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered. The 
gentleman is recognized for five minutes.
    Mr. Hostettler. Thank you, Mr. Chairman.
    The basic pilot program has been operating very 
successfully for the past six years. As I stated, 96 percent of 
participating employers believe it to be an effective tool for 
employment verification. In addition, 94 percent of employers 
believe it to be more reliable than the document check required 
by the Immigration Reform and Control Act of 1986.
    The percentage of employers who found the overall 
employment eligibility verification process to be ``not at all 
burdensome'', increased from 36 percent to 60 percent after 
they started participating in the pilot, because of the greater 
certainty the pilot provides that their employees are legal. I 
think it is time to allow volunteer employers throughout the 
Nation to participate in the pilot.
    Currently, the Department of Homeland Security must operate 
the pilot in at least five of the seven States with the highest 
estimated number of illegal aliens. I don't think there is any 
reason why employers located elsewhere in the Nation should not 
be allowed to participate. The study of the pilot program 
completed for INS stated that, ``The Social Security 
Administration and INS are currently capable of handling a 
nationwide voluntary program.''
    My amendment would accomplish this aim. It would allow any 
U.S. employer to elect to participate in the pilot program. The 
pilot program study estimated that 80 percent of illegal aliens 
live in the five original pilot program States--California, 
Florida, Illinois, New York and Texas--and that these States 
contain 35 percent of the Nation's employers. So it seems 
reasonable to hypothesize that overall usage of the program 
would likely double if it were opened up to employers 
nationwide. This is exactly what the study predicts.
    The study also predicts that the total cost of the pilot 
annually for the government, employers and employees, would go 
from $6 million to $11 million if made nationwide. This small 
increase in cost would be more than made up for by the powerful 
boost the pilot program would give to immigration law 
enforcement.
    Mr. Chairman, I urge my colleagues to support this 
amendment and yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Thank you very much, Mr. Chairman.
    I hope--This is an important issue, and if this amendment 
passes, there will be a great deal of opposition to the bill. 
The chickens and the turkeys and the other groups that support 
the extension of the pilot program support the extension of the 
pilot program, and the pilot program, at least in concept, 
makes a great deal of sense. Let's find a way to allow 
employers to easily verify the work authorization status of the 
people that they want to offer jobs to.
    But the study that the chairman of the subcommittee refers 
to in speaking in favor of the amendment concludes that the 
worst thing to do now is to expand this pilot program, for a 
whole series of reasons. And I do have to put this into 
context.
    The subcommittee has never held the hearing on this. The 
INS spent millions of dollars commissioning a study. The study 
comes back with a series of flaws and problems that cause it to 
conclude that, while the pilot project should continue as we 
seek to iron out those flaws, the worst thing to do is to 
expand it.
    Without a hearing, without a subcommittee markup, without a 
discussion of the points made by the study commissioned 
directly about this program, we're now being asked to provide 
an expansion to all States and all employers who want to 
participate. It's a terrible mistake to do that.
    Let me try and outline some of the flaws pointed out by the 
INS' own study of this program. First, the program was hindered 
by inaccuracies and outdated information in the INS databases. 
The program did not consistently provide timely immigration 
status data, which delayed the confirmation of a worker's 
employment authorization in one-third of the cases.
    According to the report, the greatest burden for inaccurate 
and unreliable data falls on workers, who are penalized by 
employers unsure of their work status. You call to verify. You 
don't get a quick answer. You've got to move on in terms of 
your own employment needs. You're going to pass over the 
employee who you otherwise wanted to hire, but can't get the 
answer back from the pilot program's verification process.
    A sizeable number of workers who were not confirmed were, 
in fact, work authorized, but for a variety of reasons, didn't 
straighten out their records with the INS or the Social 
Security Administration. Forty-two percent of--not necessarily 
a representative sample, but a sample taken by the 
investigators--were found to be work authorized compared to 
less than a quarter which were most likely unauthorized.
    That's a huge percentage of people who were otherwise 
authorized but told initially by the INS or the SSA, the Social 
Security Administration, that they were not work authorized. 
People who had a right to get a job, who the employer wanted to 
hire, were not hired because of misinformation. That's a 
compelling argument against immediately expanding it without 
further probing what is being done to fix the flaws.
    Some employers surveyed did not follow the federally-
mandated memorandum of understanding that they were required to 
sign as a condition of participating in the basic pilot. 
Participating employers engaged in prohibited employment 
practices, including preemployment screening. In other words, 
you're only supposed to ask the worker you have offered a job 
to, you're only supposed to verify that person, not prospective 
workers. You aren't supposed to be getting information about 
people until you have decided, if this person is authorized, I 
want to hire him. That was not what went on.
    That not only denies the worker a job, but also the 
opportunity to contest database inaccuracies, taking adverse 
employment action based on tentative determinations, which 
penalizes workers while they and the INS work to resolve 
database errors and the failure of employers to inform workers 
of their rights under the program.
    Some employers compromised the privacy of workers in 
various ways, such as failing to safeguard access to the 
computer used to maintain the pilot system, including leaving 
passwords and instructions in plain view. We're talking about 
personal information. We authorized that that be distributed, 
but only in secure ways.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Berman. I ask unanimous consent for two additional 
minutes.
    Chairman Sensenbrenner. Well, the committee will be 
recessed to go to the vote. We have one vote now and about 
three votes at 12:30.
    Let me say we have to have a reporting quorum when we come 
back, because our sequential referral on the sex trafficking 
act expires on Monday.
    The committee is recessed. Members will please return 
promptly.
    [Recess.]
    Chairman Sensenbrenner. The committee will be in order.
    Without objection, the gentleman from California, Mr. 
Berman, will be recognized for two additional minutes.
    Mr. Berman.  I wish the Chairman of the Subcommittee were 
here. He and I had a conversation on the floor just a minute 
ago.
    This is about an unlimited voluntary expansion. The billis 
not going to become law this year, this bill. A number of us have to 
oppose this bill unless we have a hearing where we have a chance to 
just understand what the problems that the INS's own study concluded 
exists with this program, what they're going to do to rectify it if 
it's going to be expanded. I don't have any problem with a bill 
extending the program. It's the expansion of it that seems to me to 
compel that kind of a hearing. The Chairman set a hearing twice. 
Through no fault of his own, hurricane and some--I can't remember what 
else it was. I think we ended up leaving a day earlier than we 
expected. We didn't get to have that hearing.
    The thing I would ask is, given that it's not going to 
become law this year, this is not going to pass the Senate this 
year, can we have the hearing, see if the INS and the Social 
Security Administration are going to make the corrections. And 
I will just end by quoting what the study said regarding the 
issue of inspection because it said, ``The evaluation uncovered 
sufficient problems in the design and the implementation of the 
current program to preclude recommending that it be 
significantly expanded. Some of these problems could become 
insurmountable if the program were to be expanded dramatically 
in scope.''
    All these problems that I mentioned earlier are compounded 
perhaps in an exponential fashion with a massive expansion. The 
question remains whether the program can be modified in a way 
that will permit it to maintain or enhance its current benefits 
while overcoming its weaknesses. The study concluded it cannot, 
they cannot recommend it be significantly expanded. Congress 
mandated the study. INS chose who was going to do the study. 
The study came back, comes back, talks about flaws, recommends 
against expansion at this time. I say we at least have a 
hearing to study the specific flaws they found out before we 
move the bill further, and try to get a consensus on this 
rather than have it divisive.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from Iowa seek 
recognition?
    Mr. King.  Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman.
    In response to the gentleman, the information we have 
before us shows that they have commissioned a study. And that 
study, INS is currently capable of handling either of the 
voluntary programs described. And as I listen to this rebuttal 
I would just, I would just say this, that as an employer and 
someone who has met payroll and filled out I-9s for about 28 
years, and at least after the Act was passed, that to argue 
that an employer shouldn't have the opportunity to verify the 
legality of the person--not the applicant, but the person whom 
they've agreed to hire simply on the condition that they verify 
in a positive fashion that they have met the employment 
requirements in this country. If it works for a pilot program, 
if the study verifies that it does work in the pilot program, 
and if they're prepared to move forward and I'm support of--I'm 
in support of Mr. Hostettler's amendment, and I would like to 
yield the balance of my time to the gentleman from Indiana.
    Mr. Hostettler. I thank the gentleman from Iowa.
    In response to my colleague from California's concerns, I 
would just like to say at the outset that I do sympathize with 
the fact that we did not have a hearing on this, and actually 
did not mark it up on two occasions, once as a result of a lack 
of a quorum and the other as a result of Hurricane Isabel. We 
were forced to not hold such proceedings.
    But I would like to point out that according to the study 
the issue is whether we should have a voluntary program 
expanded to the rest of the country, over and above the current 
pilot states, and according to the study, it says quote: 
``Social Security Administration and INS are currently capable 
of handling either of the voluntary programs described here or 
some other program of limited scope.'' However, compliance for 
the mandatory programs would most likely be poor unless there 
was a high probability of being monitored and penalized for 
noncompliance. And what we're talking about here is not a 
mandatory program, but an expansion of a voluntary program.
    Another issue is the program as it is now compared to what 
the rest of the country are subject to with regard to IRCA of 
1986. The rest of the country must comply with the Immigration 
Reform and Control Act of 1986. There are pilot states that 
have the ability to use this program, which the preponderance 
of people who are using that program in the pilot states like 
much better than the old program.
    So what this amendment does is simply expand the program to 
allow for voluntary participation by companies across the 
country and not just those limited by the original, the 
original pilot.
    And so there is a difference. The study does say that 
Social Security and INS would be capable of handling it and 
that's why----
    Mr. Berman. Would the gentleman yield just on that one 
point?
    Mr. Hostettler. Yes, sir.
    Mr. Berman. You were not in the room when I read the 
conclusion of the evaluation that we mandated and INS 
commissioned. The evaluation, it says, quote: ``The evaluation 
uncovered sufficient problems in the design and implementation 
of the current program,'' which is voluntary. I mean the 
current program is voluntary too. Only employers who want to in 
those states participate. To preclude, recommending that it be 
significantly expanded, that's a recommendation that they 
can't--that's their thing. We can't recommend that it be 
expanded. Expanding it to 50 states, even though on a voluntary 
basis, is a significant expansion.
    Mr. Hostettler. Reclaiming my time, they actually do not 
say that with regard to a voluntary program. They say that with 
regard to a mandatory program, that expanding it on a mandatory 
basis would not be appropriate, but a voluntary expansion, as 
the study says, relates to the fact that Social Security and 
INS are both capable of such an expansion of the voluntary 
system. And what we are saying is that no system is without 
some flaws, but the scenario that we find ourselves in is that 
the pilot program is a better program.
    Chairman Sensenbrenner. Time of the gentleman from Iowa has 
expired.
    Ms. Jackson-Lee. Mr. Chairman.
    Chairman Sensenbrenner. Gentlewoman from Texas.
    Ms. Jackson-Lee. I thank the distinguished Chairman. I 
would like to rise in support of the underlining bill dealing 
with the extension of the basic pilot program because I do 
believe that we need to commit ourselves to the underlying 
premise which is that employers are hiring individuals based 
upon their credentials. I've always said that work is yet 
undone in this committee because we need to pursue the earned 
access to legalization, which would then provide documentation 
for a number of our undocumented aliens in order that they may 
do what they want to do, which is to come here and seek an 
opportunity and work legally in this country, reflecting on the 
concept or the premise that we are a Nation built of immigrants 
and of laws.
    I would say to the Chairman of the Subcommittee that we 
have had the good pleasure of being able to work out a lot of 
issues, and we did have some logistical problems in holding a 
subcommittee hearing on, a markup on this particular extension, 
and I would argue that the expansion to 50 states, albeit 
voluntary, will simply not be effective. The report does 
indicate that we have some basic problems with accuracy and 
timeliness of the INS in terms of the data that they need, 
needs to be improved. This inaccuracy hinders the INS databases 
from responding. A lot of their information is outdated. Many 
of the employers have called and have not gotten return calls. 
Of course the INS now is merged under the Homeland Security 
Department with a completely new name and recently appointed 
assistant secretaries and directors of the various programs.
    We need to give time for the pilot program to be really 
effective. I am committed to the fact that employers must do 
the right thing by way of documenting their employees as it 
relates to the impact on Americans and as it relates to the 
idea of ensuring the right kind of employment or the employment 
of Americans or those who are documented, if you will, legally 
permanent residents. That is a good goal to achieve. It 
balances alongside of protecting the homeland.
    At the same time, however, we don't want abuses on either 
side, that people are intimidated because of their last name or 
because they speak a different language, because the employers 
don't have the right information, because they can't get the 
right information because the databases are not correct. For 
example, the data may be incorrect and someone may have secured 
their legal permanent resident status or legal status, and the 
records reflect that they have not received it. We know there 
are long waiting lines on attempting to obtain a green card or 
other documents, and therefore I think expanding it, even 
though it might be voluntary, I can't see any light at the end 
of the tunnel at this point, that the DHS would be able to 
muster the resources and staff to do it right. I think it's 
more than appropriate for this to be extended, for us to be 
able to get the bugs out of it, if you will, and as well to be 
able to work it well.
    Let me just add that 39 percent of employees--employers, 
excuse me, reported that SSA never or only sometimes returned 
calls promptly, and 43 percent reported similar difficulty with 
the INS. And so we really need improvements in training and in 
system software. I don't see how we're going to get that by 
allowing other states to come in, and even if it's voluntary, 
other states might say they've offered for us to come in, let's 
all join. That's 50 states over the 6 we have. But I ask my 
colleagues to be indulging in this, to work on--what we really 
need to do is to provide documentation to many of those seeking 
legalization. I hope that we'll have the opportunity to have 
hearings on the earned access to legalization. But with respect 
to the pilot program, I don't think we have all of the T's 
crossed and I's dotted in this particular program.
    And I might say to the chairman that this is something that 
we worked on a year or two ago when the H1-B visas werein 
place, and we argued that we had sufficient talent here in the United 
States of individuals who were technologically savvy and trained to be 
able to fit that need of that industry. So we have all committed 
ourselves to ensuring that we employ Americans, but we should also 
commit ourselves to being fair to those who are here with documented 
status who come from a different country, speak a different language. I 
would not want the fact that we are technologically unsure to then 
abuse the process. And I'd ask that we oppose the amendment to expand 
this program.
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Mr. Cannon. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I noticed that Mr. 
Berman has left. That's unfortunate. I had wanted to ask him a 
question. But let me just state at this point, having looked at 
this issue, we have to balance the needs of people who, who Mr. 
Berman talked about, who have a problem, who are not treated 
well in the system that we currently have. But we also have 
employers who need to hire people who have training, who know 
what they're doing and that can't be taken out. They need to 
rely on those people and not have them removed by a Social 
Security no-match letter.
    And so I think--without other information, a bad program 
that helps voluntarily employers who are going to spend 
significant amounts of money on training and whose business 
would be significantly disrupted if those employees were jerked 
out from under them, is a fairly important thing, and maybe 
what we need to do is work on the program to make it work more 
efficiently and better, but still give employers the 
opportunity to protect themselves from hiring employees who in 
fact have good ID that looks good, who have Social Security 
numbers that may or may not be legitimate.
    Thank you, Mr. Chairman. I yield back.
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes. 
I don't have a dog in the philosophical fight, but the one 
thing that Mr. Berman said in his response in reading from the 
report, that is extremely troubling to me and is kind of the 
follow up to what Mr. Cannon just said, is that right now the 
pilot program is kicking out a lot of people who would 
otherwise be qualified because you can't get the information 
you need to document that they are qualified. Therefore people, 
employers then pass over those qualified employees to go on to 
other employees and hire instead, which means that a 
significant number of people, percentage of the people who are 
participating in the pilot program, are failing to hire 
qualified employees because of the failure of Social Security 
or INS, which I think is--if we were talking about a situation 
where you were increasing security risk to the country might be 
justified, but it seems to me that we ought to be making the--
resolving any doubt in favor of the employment of people who 
are really qualified.
    And as long as this system is disqualifying a significant 
number of people who meet the criteria and just can't get it 
documented, I think we ought not be expanding the system until 
we get the system worked out where that doesn't happen any 
more. And that seems to me to be the one compelling thing that 
I've heard, although I'm not on the Subcommittee. I haven't 
been involved in this debate other than that, but I've been 
listening to both sides, trying to figure out what the more 
compelling argument is, and it seems to me that that's the most 
compelling argument I've heard today.
    You've got people who walk in, get selected to be hired, 
then can't get the Government to document what their real 
status is because the Government is not prepared or doesn't 
have the resources, or drags its feet, or doesn't return calls, 
that seems to me to be something that we ought not be condoning 
on a more, on a broader scale than in the pilot states that are 
already in the program.
    And I'll yield back.
    Mr. Smith. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Thank you, Mr. Chairman. I'll yield to the 
gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. I thank the gentleman from Texas.
    In response to the gentleman from North Carolina's concern 
as well as that of the gentleman from California, there has 
been discussion that a significant portion of people that ask 
for work authorization are actually turned down and leave, but 
the report found that out of over 360,000 total transactions 
between November of 1997 and December of 1999, that almost 
270,000 or 74 percent of aliens were found to be work 
authorized after initial check of the Social Security 
Administration records, and another 13 percent, almost 50,000, 
were found to be work authorized after a check of INS records.
    So in 87 percent of the cases after the initial check, they 
were found to be work authorized, total transactions.
    In a little over 32,000 cases 9 percent--9 percent the 
Social Security Administration issued a final nonconfirmation, 
and in about 1 percent of the cases the INSissued a final 
nonconfirmation. So 90 percent of new hires found to be work authorized 
were immediately confirmed by the confirmation system. In only about 4 
percent of the total transactions did the new hires themselves contact 
the Social Security Administration or INS to resolve problems with 
their work authorization status, which they have the ability to do with 
this pilot program, and if it is expanded they will continue to do 
that.
    Of those employees who did contact one of the agencies, 99 
percent were found to be work authorized. So a significant 
portion of the individuals that seek to use the program to 
attain work authorization do, and so the suggestion or the idea 
that there is this large group of individuals who seek work 
authorization and are somehow denied, is not consistent with 
any other study.
    Mr. Watt. Would the gentleman yield?
    Mr. Hostettler. And so I would like to say that once again 
it's not a perfect program. I don't know too many Federal 
Government programs that are perfect, but it's not perfect, and 
we wish to, we wish to continue to resolve those problems, and 
INS has said in the report that they are resolving those, for 
example, data entry programs.
    But if it is not this much better program than the 
underlying IRCA program, then employers in Indiana and North 
Carolina and other places are going to be subject to IRCA.
    And as Mr. Cannon pointed out, if in the course of a work 
site compliance investigation, individuals who have been 
trained for two years, are found to be out of status and that 
they are in the country illegally, they will be arrested, 
detained, ultimately deported. And so the employer loses that 
two years of experience and training and investment because we 
do not have a better system in place than what the underlying 
law, namely IRCA of 1986, will allow them to do, and I yield to 
the gentleman from North Carolina.
    Mr. Watt. I appreciate the gentleman yielding----
    Mr. Smith. Just a minute. I've got the time, and I just 
want to add one----
    Mr. Watt. Could I ask the gentleman to yield?
    Mr. Smith. Let me make one statement, then I'll be happy to 
yield.
    And that is, in addition to the points that Mr. Hostettler 
just made--and I think they're absolutely persuasive when it 
comes to supporting this amendment--I also just want to point 
out again that we are not talking about a mandatory program. I 
happen to have supported a mandatory program in the 1996 bill. 
That didn't pass. We ended up with a voluntary program. But 
what's good for 6 states if good for 50 states. We're ironing 
out the wrinkles, and in point of fact, employer sanctions are 
absolutely worthless if you don't have a way to validate the 
status of people who are applying to work. If their Social 
Security cards don't match they have several days to try to get 
that resolved by going to the Social Security Administration. A 
lot of people do not. My hunch is the people who do not are in 
fact in the country illegally, and that's going to account for 
a large percentage of the people who don't follow through and 
make the effort to validate their status.
    So let's remember those points during the debate and we'll 
be happy to yield to the gentleman from North Carolina.
    Mr. Watt. I thank the gentleman for yielding, and again, I 
haven't been at the center of this debate, but it's quite 
obvious that Mr. Hostettler is reading maybe from a different 
report than the one that Mr. Berman is reading from. They seem 
to be drawing diametrically opposed results from the same 
report.
    And I'm looking at the report now, and I just don't see 
that what the gentleman has indicated is correct. The 
recommendation, the last page of the report clearly says that: 
``This report concludes that we are not ready for larger-scale 
implementation at this time.'' I'm quoting from the report. So 
if the gentleman is----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman.
    Ms. Sanchez. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, there's an inference in all this 
discussion that we're fighting terrorism, and I'm at a loss to 
see how a substantial proportion of people trying to apply for 
a job at a meat-packing plant or a farm worker getting denied 
employment is going to have any effect--I mean is there any 
evidence that terrorists are applying for any of these jobs?
    The report says clearly that we're not ready for this large 
scale, and it's just going to cause such massive confusion, I 
would hope--the point of the pilot is to get things straight 
before you go large scale and mess everything up.
    I will yield back.
    Chairman Sensenbrenner. The question is on the first----
    Ms. Sanchez. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Sanchez. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Sanchez. Thank you. I just wanted to point out, as my 
distinguished colleague did, that under the 
recommendationsection of the report, the very first line, the very 
first recommendation reads, and I quote, ``Based on the evaluation 
findings, the basic pilot program should not be expanded to a mandatory 
or large-scale program.''
    And I'm going to read further down the report. ``The 
evaluation uncovered sufficient problems in the design and 
implementation of the current program to preclude recommending 
that it be significantly expanded. Some of these problems could 
become insurmountable if the problem were to be expanded 
dramatically in scope.''
    And I just want to point out that the amendment that's 
being offered flies completely in the face of what the very 
first recommendation is, which is, maintain the test pilot 
program. Try to work out those bugs in the program, and don't 
take the leap of faith of expanding it dramatically, because 
again, as the report concludes, those problems could be 
insurmountable.
    So with that, I would urge my colleagues to not support 
this amendment, and I would yield back the remainder of my 
time.
    Chairman Sensenbrenner. The question is on the Hostettler 
amendment. Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    If not, a reporting----
    Ms. Jackson-Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Jackson-Lee. Two amendments at the desk.
    Chairman Sensenbrenner. Which amendment does the 
gentlewoman wish reported?
    Ms. Jackson-Lee. We're getting it now, Mr. Chairman. Thank 
you. This is amendment 143.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 2359, offered by Ms. Jackson-
Lee of Texas. Beginning on page 2, strike line 6 through page 
3, line 4.
    [The amendment of Ms. Jackson-Lee follows:]

    
    
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson-Lee. Thank you very much, Mr. Chairman. The 
language proposed in Section 3 of the Basic Pilot Extension Act 
would permit State and local governments to use the basic pilot 
confirmation system to check the immigration or citizenship 
status of all U.S. citizens and immigrants who come within 
their purview. This would expand the basic pilot program far 
beyond the employment contact, and it would do so without a 
hearing on whether such State and local access to basic pilot 
information is inappropriate.
    Under the existing pilot program, employers provide the 
Department of Homeland Security with information about 
employment authorization that has been provided by a newly 
hired alien employee. DHS then confirms that the employee is 
authorized to work in the United States or reports that such 
work authorization cannot be confirmed. Fair enough.
    Under Section 3, however, the State or local government 
agency would be taking DHS for citizenship or immigration 
status information in addition to the identity and employment 
eligibility records obtained from the basic pilot confirmation, 
which is quite different from asking for confirmation or non-
confirmation of the existence of work authorization.
    Moreover, Section 3 does not contain privacy protectionsor 
protections against abuse by individuals within State and local 
governments. Moreover, State and local governments already have access 
to an information system that they may use to determine whether 
documents provided by non-citizens match those in the DHS database. 
Such information is available through the Systematic Alien Verification 
for Entitlements--that's the SAVE program--which was created by Section 
121 of the Immigration Reform and Control Act of 1986.
    The SAVE program includes numerous safeguards to protect 
against misuse of information, discrimination, and 
inappropriate disclosure. Section 3 would move us in the 
direction of establishing a national register or database of 
all Americans, the necessary precursor to implementation of a 
national ID. It would do this by amalgating data of citizens 
and immigrants into a single database that would be used for 
multiple purposes outside of the employment content.
    I urge, therefore, my colleagues to consider the invasion 
of privacy that Section 3 now allows and the fact that it is 
redundant inasmuch as our local governments, State and 
municipal governments have access to this information. It is 
key, and I think because of our responsibilities in the 
Judiciary Committee, that we balance the protection of the 
homeland with our civil liberties. As we have seen a number of 
incidences coming about with PATRIOT Act I and now the 
proposals of PATRIOT Act II, it is our responsibility to find a 
very balanced perspective, keeping in mind the responsibilities 
to secure our homeland, but as well keeping in mind the 
responsibilities to ensure that our civil liberties and 
protected and our privacy is protected.
    With that, I yield back.

             Statement of Congresswoman Sheila Jackson-Lee

    The language proposed in Section 3 of the Basic Pilot Extension Act 
would permit State and local governments to use the Basic Pilot 
confirmation system to check the immigration or citizenship status of 
all U.S. citizens and immigrants who come within their purview. This 
would expand the basic pilot program far beyond the employment context, 
and it would do so without a hearing on whether such State and local 
access to Basic Pilot information is appropriate.
    Under the existing Basic Pilot, employers provide the Department of 
Homeland Security (DHS) with information about employment authorization 
that has been provided by a newly hired, alien employee. DHS then 
confirms that the employee is authorized to work in the United States 
or reports that such work authorization cannot be confirmed.
    Under Section 3, the State or local government agency would be 
asking DHS for citizenship or immigration status information in 
addition to the identity and employment eligibility records obtained 
from the Basic Pilot confirmation, which is quite different from asking 
for conformation or nonconformation of the existence of work 
authorization. Moreover, Section 3 does not contain privacy protections 
or protections against abuse by the individuals within State and local 
governments.
    Moreover, State and local governments already have access to an 
information system that they may use to determine whether documents 
provided by noncitizens match those in the DHS database. Such 
information is available through the Systematic Alien Verification for 
Entitlements (SAVE) Program, which was created by section 121 of the 
Immigration Reform and Control Act of 1986 (IRCA) (Pub. L. 99-603). The 
SAVE program includes numerous safeguards to protect against misuse of 
information, discrimination, and inappropriate disclosure.
    Section 3 would move us in the direction of establishing a national 
register or database of all Americans, the necessary precursor to 
implementation of a national ID. It would do this by amalgamating data 
of citizens and immigrants into a single database that would be used 
for multiple purposes (outside of the employment context).
    I urge you therefore to vote for my amendment, which would delete 
Section 3 from the Basic Pilot Extension Act.
    Thank you.

    Chairman Sensenbrenner. The gentleman from Indiana.
    Mr. Hostettler. Mr. Chairman, I have no----
    Chairman Sensenbrenner. Questions on the Jackson-Lee 
amendment?
    [No response.]
    Chairman Sensenbrenner. Those is favor will say aye? 
Opposed, no?
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. If not, a reporting quorum is 
present. The question occurs on the motion to report the bill--
--
    Ms. Jackson-Lee. I have another amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 2359, offered by Ms. Jackson-
Lee of Texas. Page 2, line 2, strike ``11-year'' and insert 
``9-year.''
    [The amendment of Ms. Jackson-Lee follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson-Lee. Mr. Chairman, this is a very simple 
amendment. It simply asks, because of the difficulties in the 
databases and the inability for the information secured by SSA 
to be accurate, because the inaccuracies noted in the report, 
that this extension be only for 3 years instead of 5 years. And 
I'd ask my colleagues to vote to have this be a 3-year 
extension as opposed to a 5-year extension.

             Statement of Congresswoman Sheila Jackson-Lee

    This amendment would extend the Basic Pilot Program for three years 
rather than for the five-year period that is provided for in the Basic 
Pilot Extension Act. As the committee knows, an independent evaluation 
of the Basic Pilot Program was conducted for the Department of Justice 
by the Institute for Survey Research at Temple University (ISR). That 
evaluation revealed a number of concerns about the implementation of 
the Basic Pilot, such as the following:
    1. The accuracy and timeliness of Immigration and Naturalization 
Service (IN) data need to be improved. The efficient operation of the 
pilot program was hindered by inaccuracies and outdated information in 
INS databases.
    2. There have been complaints alleging actual or potential harm to 
individuals. Although employees were largely satisfied with the 
services provided by INS and the Social Security Administration (SSA), 
they occasionally have made complaints to the Office of Special Counsel 
(OSC) in the Civil Rights Division of the Department of Justice about 
INS implementation of the pilots.
    3. The Basic Pilot system needs computer and technical support 
improvements. One-third of the employers said they had encountered 
difficulties in setting up the Basic Pilot program. Most of the 
problems involved modem connection, software, hardware, and telephone 
lines. Many employers also mentioned having these problems when the 
system was online. Further, 39% of employers reported that SSA never or 
only sometimes returned calls promptly and 43% reported similar 
difficulty with INS.
    4. Improvements are needed in training and in system software. 
Improvements need to be incorporated into the Basic Pilot to reduce 
discretion in how employers use the system and in the extent to which 
they follow pilot procedures designed to protect employee rights. 
System program changes are needed also to increase checks on name 
variations and to perform edit and consistency checks of the data 
entered by the employer.
    5. Quality assurance measures need to be incorporated into the 
program. Periodic reports are needed to identify information which 
suggests that employers may not be using the system correctly and to 
summarize general trends in verification requests.
    6. Employers sometimes fail to follow mandated safeguards for the 
Basic Pilot. There is evidence that employers are engaging in practices 
specifically prohibited by the Basic Pilot MOU.
    7. Concerns regarding employee privacy. Although the majority of 
employers appear to safeguard their employees' privacy, some did not 
exhibit the same level of concern. For instance, 15% of employees who 
were told about problems with their work authorization reported that 
they were not told in a private setting.
    8. Missed deadlines. One complaint mentioned by 16% of employers 
about the Basic Pilot is that at times the number of employees hired is 
so great that it is impossible to submit the information required by 
the deadline of 3 business days.
    9. Failure to inform employees of their rights. Employers do not 
always follow procedures designed to inform employees and prospective 
employees of their rights. Only half of the establishments posted the 
required Basic Pilot program notice where job applicants could easily 
see it. It appears that 73% of the employees who should have been 
informed of work authorization problems were not. These employees were 
thus precluded from resolving the problems. Nineteen percent of pilot 
employers reported that they do not always provide employees with a 
printed Notice of Tentative Nonconfirmation.
    I am opposed to a five-year extension of the Basic Pilot in the 
absence of evidence indicating that enough progress has been made in 
addressing these concerns to warrant such a lengthy extension. My 
amendment would provide a three-year extension which is more than 
generous under these circumstances. I also hope that an oversight 
hearing will be held early next year to evaluate the progress that DHS 
has made in resolving these problems.
    Thank you.

    Chairman Sensenbrenner. The--does the gentlewoman yield 
back?
    Ms. Jackson-Lee. I yield back.
    Chairman Sensenbrenner. The question is on the Jackson-Lee 
amendment. Those in favor will say aye? Opposed, no?
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. A reporting quorum is present. The 
question occurs on the motion to report the bill H.R. 2359 
favorably as amended. Those in favor will say aye? Opposed, no?
    The ayes appear to have it----
    Ms. Jackson-Lee. Roll call.
    Chairman Sensenbrenner. A roll call is ordered. Those in 
favor of reporting the bill H.R. 2359 favorably as amended 
will, as your names are called, answer aye, those opposed, no, 
and the clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins.
    Mr. Jenkins. Aye.
    Mr. Clerk. Mr. Jenkins, aye. Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus.
    [No response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green.
    [No response.]
    The Clerk. Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    [No response.]
    The Clerk. Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren.
    [No response.]
    The Clerk. Ms. Jackson-Lee.
    Ms. Jackson-Lee. No.
    The Clerk. Ms. Jackson-Lee, no. Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner.
    [No response.]
    The Clerk. Mr. Schiff.
    [No response.]
    The Clerk. Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there members in the chamber 
who wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 18 ayes and 8 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the bill will be reported 
favorably to the House in the form of a single amendment in the 
nature of a substitute incorporating the amendments adopted 
here today. Without objection, the chairman is authorized to 
move to go to conference pursuant to House Rules. Without 
objection, the staff is directed to make technical and 
conforming changes, and all members will be given 2 days as 
provided by the House Rules in which to submit additional, 
dissenting, supplemental, or minority views.

                            DISSENTING VIEWS

    We write these views in opposition to H.R. 2359, the 
``Basic Pilot Extension Act of 2003''. H.R. 2359 would extend 
for an additional five years the Basic Pilot Program to 
electronically verify the employment authorization of newly 
hired employees. While we support a basic Extension of the 
pilot program to continue to examine ways to verify employment 
eligibility, H.R. 2359 extends the program far beyond the 
employment context and puts in place the mechanism for a 
controversial national identity system. Additionally, amendment 
passed in the committee expands the program to all fifty 
states, without regard to the existing program's inaccuracies 
and significant privacy concerns.
    Section 3 of the ``Basic Pilot Extension Act of 2003'' 
would permit any government agency to use the Basic Pilot 
confirmation system to check the immigration or citizenship 
status of all U.S. citizens and immigrants who come within 
their purview. This would include those who seek driver's 
licenses, professional licenses, or any person who is subject 
to an inquiry of a federal, state or local government agency. 
Such a vast expansion would magnify the existing privacy and 
inaccuracy problems that already plague the current program. 
Moreover, the provision lacks any privacy protections or 
protections against abuse by state and local governments. For 
these reasons, conservative groups such as Americans for Tax 
Reform and The American Conservative Union 1 and 
immigration groups such as the National Immigration Law Center 
2 strongly oppose H.R. 2359.
---------------------------------------------------------------------------
    \1\ Letter to Honorable F. James Sensenbrenner and Honorable John 
Conyers, Jr., from Americans for Tax Reform and the American 
Conservative Union; September 24, 2003. On file with House Judiciary 
Committee Democratic Staff.
    \2\ Letter to Honorable F. James Sensenbrenner, Jr., from the 
National Immigration Law Center; September 24, 2003. On file with the 
House Judiciary Committee Democratic Staff.
---------------------------------------------------------------------------
    Most importantly, we are concerned that section 3 is a 
veiled attempt to put in place the mechanism for eventual 
adoption of a controversial national identification program. 
The expansion of the program under section 3 would effectively 
create a single database that would be used for multiple 
purposes far beyond the employment context and would make it 
much easier for the government to track its own citizens. Such 
a vast invasion of citizens' privacy must be carefully examined 
and debated by Congress. However, this broad expansion of 
government power has been attached to a seemingly benign 
program extension, circumventing any committee hearings or 
subcommittee mark-up. Rep. Jackson-Lee attempted to remove this 
controversial piece from the bill with an amendment, defeated 
by voice vote, that would have struck all of section 3 from the 
bill.
    We further oppose an amendment passed in the Judiciary 
Committee that would expand the pilot program to all fifty 
states without regard for the significant deficiencies of the 
current program. An INS funded report, issued only after the 
last extension of the program was granted, found that the 
current pilot program was hindered by inaccuracies and outdated 
information in the INS databases and that it did not 
consistently provide timely immigration data.3 The 
report also found that some employers compromised the privacy 
of workers in various ways such as failure to safeguard access 
to the computer database. Some participating employers also 
engaged in prohibited employment practices, including pre-
employment screening which denied workers both a job and the 
opportunity to correct database inaccuracies. Due to these 
findings, the report concluded that the Basic Pilot is not 
ready for larger-scale implementation at this time.
---------------------------------------------------------------------------
    \3\ INS Basic Pilot Evaluation Summary Report; January 29, 2002.
---------------------------------------------------------------------------
    Supporters of the amendment dismissed concerns about 
privacy and data inaccuracies, citing that the proposed 
expansion would be voluntary and that the problems cited in the 
report were not major. In truth, the report in no way excludes 
voluntary expansion from its recommendations.4 In 
fact, any nationwide expansion, mandatory or voluntary, would 
be significant because the program currently exists in only six 
states. Even further, the INS commissioned report clearly 
cautions that the program should not be significantly expanded 
because the above cited problems could become insurmountable if 
the program were expanded in scope.5
---------------------------------------------------------------------------
    \4\ The INS report states at page vii: ``Based on the evaluation 
findings, electronic verification of employment authorization as tested 
in the Basic Pilot, while potentially a valid concept, is not ready for 
larger-scale implementation at this time.''
    \5\ The INS report states at page 41: ``The evaluation uncovered 
sufficient problems in the design and implementation of the current 
program to preclude recommending that it be significantly expanded. 
Some of these problems could become insurmountable if the program were 
to be expanded dramatically in scope. The question remans whether the 
program can be modified in a way that will permit it to maintain or 
enhance its current benefits while overcoming its weaknesses.''
---------------------------------------------------------------------------
    It is imperative that before Congress expands the Basic 
Pilot Program, it must first ensure that the Bureau of 
Citizenship and Immigration Services (BCIS), the Bureau of 
Immigration and Customs Enforcement (ICE), and the Social 
Security Administration (SSA) focus on accurately updating 
their databases to prevent authorized workers from being turned 
away from jobs. The existing privacy problems must also be 
addressed. For these reasons, Rep. Jackson-Lee offered an 
amendment, defeated by voice vote, that would have enabled a 
Congress to more frequently examine the Basic Pilot Program by 
changing the extension from five additional years to three.
    Although we support extending the Basic Pilot Program for 
employment verification, we oppose the ``Basic Pilot Program 
Extension Act of 2003'' because it goes far beyond a simple 
program extension and would significantly change current law. 
This legislation not only expands a currently imperfect 
program, it also creates a new and controversial identification 
database that would threaten the privacy of all United States 
citizens. It would be irresponsible for Congress to make such a 
significant change to existing law without first considering it 
on its own merits.

                                   John Conyers, Jr.
                                   Bobby Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William Delahunt.
                                   Tammy Baldwin.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson-Lee.
                                   Martin T. Meehan.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.

                                
