[House Report 107-310]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-310
HOUSE OF REPRESENTATIVES
1st Session Part 1
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BASIC PILOT EXTENSION ACT OF 2001
_______
November 30, 2001.--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
[To accompany H.R. 3030]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3030) to extend the ``Basic Pilot'' employment
verification system, and for other purposes, having considered
the same, reports favorably thereon with amendments and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendments................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 5
Committee Consideration.......................................... 5
Vote of the Committee............................................ 5
Committee Oversight Findings..................................... 5
Performance Goals and Objectives................................. 5
New Budget Authority and Tax Expenditures........................ 6
Congressional Budget Office Cost Estimate........................ 6
Constitutional Authority Statement............................... 7
Section-by-Section Analysis and Discussion....................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Committee Jurisdiction Letters................................... 9
Markup Transcript................................................ 10
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 1, line 8, strike ``1966 (division C of Public Law
104-208 (Sept. 30, 1996), 110 Stat. 3009-656)'' and insert
``1996 (8 U.S.C. 1324a note)''.
Page 2, beginning on line 1, strike ``in lieu thereof''.
Page 2, line 4, strike ``amendments'' and insert
``amendment''.
Page 2, line 5, insert ``the'' before ``enactment''.
Amend the title so as to read:
A bill to extend the basic pilot program for employment
eligibility verification, and for other purposes.
Purpose and Summary
H.R. 3030 extends for 2 years the operation of the pilot
programs for employment eligibility verification that were
instituted by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996.
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\ 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.
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\1\ See, generally, section 274A of the Immigration and Nationality
Act.
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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\
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\2\ See, generally, section 274B of the INA.
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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 don't want to hire illegal aliens but
have no choice but to accept documents they know have a good
likelihood of being counterfeit.
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\3\ See, i.e., 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).
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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 4 years. The ``basic pilot program'' was
implemented first, and expires in November 2001. Under the
basic pilot, the proffered Social Security numbers and alien
identification numbers of new hires would be checked against
Social Security Administration and Immigration and
Naturalization Service (``INS'') records in order to weed out
documents containing counterfeit numbers and real numbers used
by multiple individuals 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 1,758 employers are currently
participating in the pilot.
The pilot works as follows: \4\
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\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 must examine
the documents to determine whether they reasonably
appear on their face to be genuine and complete an I-9
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form attesting to this examination.
The employer will have 3 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-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
will compare the name and INS-issued number provided
against information contained in INS records.
If in checking the records, the confirmation
office ascertains that the new hire is eligible to
work, the operator will within 3 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 3 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 Social Security
Administration and/or the INS 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 discrepency can be reconciled within
10 days, then confirmation of work eligibility and a
confirmation number will be given to the employer by
the end of this period.
If the discrepency cannot be reconciled
within 10 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 the Attorney
General 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 INS agree as part of the pilot to safeguard
the information provided to them by employers and to limit
access to the information as appropriate by 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.
Operation of the basic pilot program commenced in November
1997 and expires in November 2001.
Section 405 of IIRIRA required that the INS provide a
report to this Committee and the Senate Judiciary Committee on
the operations of the pilot programs within 3 months after the
end of the third and fourth years in which the programs are in
effect. The reports were to assess the benefits of the pilot
programs to employers and the degree to which they assist in
the enforcement of the rules regarding the employment of aliens
and to include recommendations on whether or not the pilot
programs should be continued or modified.
The INS has not complied with section 405. The agency
provided Congress with no report after the third year of
operation of the basic pilot program and there is no assurance
that one will be provided within the time limit specified after
the fourth year of operation. The INS's failure to provide
reports as required by law is unfortunately a frequent failing
of the agency. It can only be hoped that once the immigration
functions of the Justice Department are restructured and the
INS disbanded will such negligence and/or malfeasance be a
thing of the past.
In any event, this Committee must now decide upon
reauthorization of the basic pilot program in absence of agency
reports on the program. The Committee has received word from
businesses and trade associations in the meat packing and
processing industry that the basic pilot program has been a
great success and that they favor a 2-year extension of the
program. They stated in a letter to the Committee that:
While the program does not provide 100% deterrence of
persons seeking unauthorized employment, it is far
superior to the current practice. . . .
. . .
Employers have embraced the additional tools granted by
Congress to confirm that new employees are legally
eligible to work. These pilot programs enhance the
current . . . employment verification process by
providing employers with greater assurances that they
are not hiring unauthorized aliens and by establishing
larger obstacles to aliens seeking to work illegally.
This result is accomplished without disruption or
inconvenience to U.S. citizens or aliens authorized to
work.\5\
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\5\ See letter from the American Meat Institute, Cargill, Inc.,
ConAgra Foods, Inc., Farmland Industries, Inc., IBP, Inc., the National
Chicken Council, the National Turkey Federation, Seaboard Corporation,
Smithfield Foods, Inc., and Tyson Foods, to House Judiciary Committee
Chairman F. James Sensenbrenner, Jr. (October 9, 2001).
The Committee has received no adverse comment regarding the
basic pilot program.
III. H.R. 3030
In light of the continuing relevance of the original goals
of the basic pilot program and the evidence of its successful
operation, the Committee supports a 2-year extension. H.R. 3030
provides such an extension.
The Committee can only hope that when it is again called
upon to consider the pilot program it will have in hand
evaluation of the program's operation from the Justice
Department.
Hearings
No hearings were held on H.R. 3030.
Committee Consideration
On November 1, 2001, the Subcommittee on Immigration and
Claims met in open session and ordered favorably reported the
bill H.R. 3030, by a voice vote, a quorum being present. On
November 15, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 3030 with amendment by
a voice vote, a quorum being present.
Vote of the Committee
There were no recorded votes on H.R. 3030.
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.
Performance Goals and Objectives
H.R. 3030 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House of Representatives
is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII 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. 3030, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 29, 2001.
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. 3030, the Basic
Pilot Extension Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3030--Basic Pilot Extension Act of 2001.
CBO estimates that implementing H.R. 3030 would cost about
$1 million in each of fiscal years 2002 and 2003 and less than
$500,000 annually over the 2004-2005 period, assuming the
availability of appropriations. The bill would not affect
direct spending or receipts, so pay-as-you-go procedures would
not apply. H.R. 3030 would impose a private-sector mandate, as
defined by the Unfunded Mandates Reform Act (UMRA), but CBO
estimates that the direct cost of the mandate would fall well
below the annual threshold established by UMRA ($113 million in
2001, adjusted annually for inflation). The bill contains no
intergovernmental mandates as defined in UMRA and would impose
no costs on state, local, or tribal governments.
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 directed the Immigration and Naturalization Service
(INS) and the Social Security Administration (SSA) to establish
three pilot programs, each lasting 4 years, 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 INS and SSA databases to
determine work eligibility. The major pilot program started in
1997 and will end in 2001, while the two other programs began
in 1999 and will terminate in 2003. H.R. 3030 would extend the
length of each program by 2 years.
According to the INS and the SSA, the agencies spend a
total of about $1 million annually to operate the programs.
Implementing H.R. 3030 would extend the major pilot program
through the end of fiscal year 2003 and would extend the other
two programs until the middle of fiscal year 2005. Based on
information from the two agencies, CBO estimates that the bill
would cost about $1 million annually in 2002 and 2003, and less
than $500,000 annually in 2004 and 2005, all from appropriated
funds.
H.R. 3030 would impose a private-sector mandate by
requiring certain employers to participate in the pilot
programs. Participation in the programs is voluntary except for
employers who have been found to have violated certain
immigration laws. According to the INS, one company in Texas is
required to participate in the pilot programs. Therefore, CBO
estimates that the direct cost, if any, to comply with the
mandate would be minimal and would fall well below the annual
threshold established by UMRA ($113 million in 2001, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs), who can be reached at 226-2860, and Paige
Piper/Bach (for impacts on the private sector), who can be
reached at 226-2940. This estimate was approved by Robert A.
Sunshine, 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 I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title.
This Act may be cited as the ``Basic Pilot Extension Act of
2001.''
Section 2. Extension of Programs.
Section 2 amends section 401(b) of IIRIRA (8 U.S.C. sec.
1324a note) to provide that unless the Congress provides
otherwise, the Attorney General shall terminate a pilot program
established by title IV of IIRIRA at the end of the 6-year
period beginning on the first day the pilot program is in
effect. This will apply not only to the basic pilot program
(section 403(a) of IIRIRA) but also to the ``citizen
attestation pilot program'' (section 403(b)) and the ``machine-
readable-document pilot program'' (section 403(c)). However,
the citizen attestation pilot program began operation in June
1999 and the machine-readable-document pilot program began in
May 1999 and they are not about to expire.
Section 3. Effective Date.
Section 3 provides that the amendment made by this Act
shall take effect on the date of the enactment of the Act.
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 italics, existing law in which no change
is proposed is shown in roman):
SECTION 401 OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT
RESPONSIBILITY ACT OF 1996
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 [4-year] 6-year
period beginning on the first day the pilot program is in
effect.
* * * * * * *
Committee Jurisdiction Letters
Markup Transcript
BUSINESS MEETING
THURSDAY, NOVEMBER 15, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order.
The next item on the agenda is the adoption of H.R. 3030 to
extend the Basic Pilot employment verification system and for
other purposes.
The Chair recognizes the gentleman from Pennsylvania, Mr.
Gekas, the Chairman of the Subcommittee on Immigration and
Claims.
Mr. Gekas. Thank you, Mr. Chairman.
The Subcommittee on Immigration and Claims reports
favorably the bill H.R. 3030 and moves its favorable
recommendation to the full House.
Chairman Sensenbrenner. Without objection, the bill H.R.
3030 will be considered as read and open for amendment at any
point.
[The bill, H.R. 3030, follows:]
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Pennsylvania to strike the last word.
Mr. Gekas. I thank the Chair.
The Chair in its introductory remarks alluded to the fact
that this is a program that is already in place and working
very handsomely. The purpose of this legislation here today is
to extend the validity of that program beyond its expiration
date of November 30, 2001.
In 1986, we made it illegal for employers to knowingly hire
people who are aliens ineligible to work in the United States.
We decided as a Congress to crack down on that. And then we
imposed on employers stringent rules on what documentation they
should accept follow and what inquiries they should conduct, et
cetera, and pretty soon it became a mess on both sides of the
application desk, the employer and the employee.
What the Pilot Program did 5 years ago was to simplify the
process and put the employer under the onus of checking the
Social Security and INS numbers of the prospective employee.
And the law would allow the employer to rely on that, thus
everybody could go merrily on his way in the employer-employee
relationship.
The pilot program has worked. It is supported by countless
organizations, who have found it feasible and workable.
And I ask the Members to support the extension of this
program.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. I thank the gentleman and the Chairman and
the Chairman of the Subcommittee.
I join in supporting the extension of this pilot program,
acknowledging in the backdrop of all of our minds September
11th.
This will be helpful to employers around the country, but
in particular to areas where there is a large number of
immigrants. This will protect the immigrants with legal
documentation, and it will protect employers as well.
And so I look to this as a fair bill that addresses the
posture that I think we would like to be in, in this country,
which is a respect for immigration and for laws.
This should complement, ultimately, legislation and a
reassessment our vocational visa and student visa program,
which will allow us to be more accurate in who obtains those
visas and, as well, be able to ascertain the right utilization
of them.
In particular, I would just add the necessity of having to
determine whether someone is coming to be trained as an airline
pilot for good reasons or negative reasons. That has nothing to
do with this particular legislation but certainly ties into
individuals who are documented but, as well, documented and
using visas for the right reason.
So I support this legislation because I think it helps the
basic policies of immigration law. And that is to help create a
pathway for access to legalization and to applaud those who
have legal standing.
I yield back.
[The statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Thank you Mr. Chairman. I am gratified to be here today to vote on
a bill that will improve the employment verification process. As you
know, the Congress is exploring new ways, methods, and techniques to
ensure the security and integrity of the way in which we admit and
track aliens who apply for non-immigrant visas. We do live in dangerous
times. This bill is extending a pilot program that would improve and
ensure integrity in the employment verification process.
This bill, introduced by Congressman Tom Latham extends the Basic
Pilot employment verification program under expedited procedures. The
Basic employment verification system is a program that many companies
use to ensure that new companies are legal. This program is a voluntary
electronic employment verification system, which allow employers to
verify I-9 documents. Companies with facilities in any of the ``pilot''
states may use the verification program throughout all of their
facilities, including states outside the program. Approximately 2,000
employers are presently using the Basic Pilot Program.
In Title IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress authorized the Immigration and
Naturalization Service to conduct voluntary pilot programs that allow
these participating employers to access by computer certain
governmental databases for purposes of new employment verification.
This program allows employers signing a memorandum of understanding
(MOU) with the INS to query an INS-Social Security Administration (SSA)
data base regarding the work-authorization status of new employment
applicants, instead of simply recording and retaining the numbers of
documents that such applicants chose to submit. The Basic Pilot Program
provides greater ease of verification for employers and employees and
greater deterrence of the use of fraudulent INS and SSA documents.
Industries such as meat packing and food processing have stated an
interest in cooperating with the INS to maximize its ability to ensure
its interest in cooperating with the INS to maximize its ability to
ensure its workforce is authorized. Many believe that while the program
does not provide 100% deterrence of persons seeking unauthorized
employment, it is far superior to the current practice of recording in
I-9 forms the numbers of documents physically presented by new
employees.
I will support this legislation because it is needed because
Section 401(b) of the 1996 Act states that ``the . . . Attorney General
shall terminate a pilot program at the end of the 4-year period
beginning on the first day the pilot program is in effect.'' H.R. 3030
extends the life of the program by two years, from four years to six
years. This pilot program enhances the current I-9 form employment
verification process by providing employers with greater assurances
that they are not hiring unauthorized aliens and by establishing larger
obstacles to aliens seeking to work illegally.
I support this legislation.
Chairman Sensenbrenner. Are there amendments?
Hearing none, the Chair notes the presence of a reporting
quorum. The question occurs on the motion to report the bill
H.R. 3030 favorably.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it. The motion to
report favorably is agreed to.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And all Members will be given 2 days as provided by House rules
in which to submit additional dissenting, supplemental, or
minority views.
[Intervening business.]
The Chair thanks the Members for their indulgence and
support. This concludes the business on the notice, and the
Committee is adjourned.
[Whereupon, at 11:06 a.m., the Committee was adjourned.]