[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.
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\1\ See, generally, section 274A of the Immigration and Nationality
Act.
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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\
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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 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).
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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 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\
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\4\ See generally, sections 403(a) and 404 of IIRIRA.
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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\
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\5\ INS Basic Pilot Summary Report at 24.
\6\ Id. at 16.
\7\ Id. at 34.
\8\ Id. at 21.
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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\
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\9\ Id. at v.
\10\ Id. at 16.
\11\ Id.
\12\ Id. at 33.
\13\ Id.
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``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\
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\14\ Id. at 23.
\15\ Id. at 25.
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``[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\
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\16\ Id. at 17.
\17\ Id. at 16.
\18\ Id. at 17.
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``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\
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\19\ Id. at vi.
\20\ Id. at 28.
\21\ Id. at 29.
\22\ Id. at 19.
\23\ Id. at 29.
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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.
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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\
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\25\ Id. at 37.
\26\ Id. at 38.
\27\ Id. at 41.
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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.
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\3\ INS Basic Pilot Evaluation Summary Report; January 29, 2002.
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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
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\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.''
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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.