[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMMIGRATION: ENFORCING EMPLOYEE WORK
ELIGIBILITY LAWS AND IMPLEMENTING A
STRONGER EMPLOYMENT VERIFICATION SYSTEM
=======================================================================
FIELD HEARING
before the
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
July 31, 2006, in Plano, Texas
__________
Serial No. 109-51
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
28-875 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON EDUCATION AND THE WORKFORCE
HOWARD P. ``BUCK'' McKEON, California, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California,
Chairman Ranking Minority Member
Michael N. Castle, Delaware Dale E. Kildee, Michigan
Sam Johnson, Texas Major R. Owens, New York
Mark E. Souder, Indiana Donald M. Payne, New Jersey
Charlie Norwood, Georgia Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan Robert C. Scott, Virginia
Judy Biggert, Illinois Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio Carolyn McCarthy, New York
Ric Keller, Florida John F. Tierney, Massachusetts
Tom Osborne, Nebraska Ron Kind, Wisconsin
Joe Wilson, South Carolina Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada David Wu, Oregon
John Kline, Minnesota Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado Susan A. Davis, California
Bob Inglis, South Carolina Betty McCollum, Minnesota
Cathy McMorris, Washington Danny K. Davis, Illinois
Kenny Marchant, Texas Raul M. Grijalva, Arizona
Tom Price, Georgia Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico Tim Ryan, Ohio
Bobby Jindal, Louisiana Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
[Vacancy]
Vic Klatt, Staff Director
Mark Zuckerman, Minority Staff Director, General Counsel
------
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
SAM JOHNSON, Texas, Chairman
John Kline, Minnesota, Vice Robert E. Andrews, New Jersey
Chairman Ranking Minority Member
Howard P. ``Buck'' McKeon, Dale E. Kildee, Michigan
California Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Carolyn McCarthy, New York
Patrick J. Tiberi, Ohio John F. Tierney, Massachusetts
Joe Wilson, South Carolina David Wu, Oregon
Marilyn N. Musgrave, Colorado Rush D. Holt, New Jersey
Kenny Marchant, Texas Betty McCollum, Minnesota
Bobby Jindal, Louisiana Raul M. Grijalva, Arizona
Charles W. Boustany, Jr., Loiusiana George Miller, California, ex
Virginia Foxx, North Carolina officio
[Vacancy]
C O N T E N T S
----------
Page
Hearing held on July 31, 2006.................................... 1
Statement of Members:
Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 3
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts..................................... 4
Prepared statement of.................................... 6
Wilson, Hon. Joe, a Representative in Congress from the State
of South Carolina, prepared statement of................... 9
Statement of Witnesses:
Beardall, Bill, Ph.D., on behalf of the Equal Justice Center
and the National Immigration Law Center.................... 31
Prepared statement of.................................... 34
Chawkin, John, special agent in charge, U.S. Immigration and
Customs Enforcement, U.S. Department of Homeland Security.. 11
Prepared statement of.................................... 13
Luther, Jon L., chairman and CEO, Dunkin' Brands, Inc........ 42
Prepared statement of.................................... 44
Martinez, Abel, vice president, H-E-B........................ 17
Prepared statement of.................................... 19
Simmons, Geri, human resources manager, on behalf of the
Society for Human Resource Management...................... 24
Prepared statement of.................................... 26
Additional Submissions:
American Staffing Association, prepared statement of......... 57
The U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security:
Prepared statement of.................................... 52
News release............................................. 56
Fact sheet............................................... 56
IMMIGRATION: ENFORCING EMPLOYEE
WORK ELIGIBILITY LAWS AND
IMPLEMENTING A STRONGER EMPLOYMENT
----------
Monday, July 31, 2006
U.S. House of Representatives
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
Plano, TX
----------
The subcommittee met, pursuant to call, at 11 a.m., in
Plano Council Chambers, 1520 Avenue K, Plano, TX, Hon. Sam
Johnson [chairman of the subcommittee] presiding.
Present: Representatives Johnson, Wilson, Tierney.
Staff Present: Loren Sweatt, Professional Staff Member;
Steve Forde, Communications Director; and Guerino J. Calemine,
III, Labor Counsel.
Chairman Johnson. Thank you. I want to thank all of you for
being here. It's rare that we have hearings outside of
Washington, D.C. Oftentimes we bring all these witnesses to
Washington, to our committee, and it's a pleasure to be able to
be here in Plano, Texas, and I want to thank Mr. John Tierney,
who is from Massachusetts, for coming in. He is in the Congress
on our committee, the full committee, not necessarily the
subcommittee. And Mr. Joe Wilson from South Carolina, who came
in as well. But he is on the subcommittee as well as the full
committee.
But a quorum being present, the Subcommittee on Employer-
Employee Relations of the Committee on Education and the
Workforce will come to order.
We are holding this hearing today to hear testimony on
immigration, enforcing employee work eligibility laws, and
implementing a stronger employment verification system.
With that, I ask unanimous consent that the hearing record
remain open for 14 days until our member statements and other
material referenced during the hearing to be submitted in the
official record.
Without objection, so ordered.
I want to again welcome you all. It is an honor to host and
chair one of the hearings in the heartland. Texans come face to
face with illegal immigration daily, and that is why I was
interested in having this discussion here, rather than in
Washington D.C.
So you know it, I have heard a lot about this issue from my
constituents, especially. In fact, about four out of five calls
and e-mails are from constituents who are fired up about our
porous borders and want something done about it. I hear you,
and I am not happy about it either. That is why we are having
these hearings, to get outside of Washington, to take these
issues to where they matter, in hometowns across America.
Today's hearing is the third in a series of hearings that
the Committee on Education and the Workforce, and its
subcommittees have held, to examine immigration reform
proposals pending in both the U.S. House and the U.S. Senate.
As you all know, the subject of immigration, legal and
illegal, has garnered significant attention recently.
The hearing today will focus on practical solutions to
preventing illegal immigration. Specifically, we will examine
the enforcement of the employee work eligibility laws that are
currently on the books and look at legislative proposals that
would implement a stronger employment and verification system.
This hearing is an interesting intersection between my
responsibilities on the Ways and Means Committee and the
Education and Workforce Committee.
As a member of the Social Security Subcommittee, in Ways
and Means, I am well aware of the difficulties facing the
Social Security Administration as they attempt to implement a
workable employment verification system that does not
compromise an individual's privacy.
We are working diligently with the Social Security
Administration to resolve these issues, and have been, believe
it or not, for over 10 years.
Clearly, employment is the key factor that experts point to
as to why people come to this country. Our economic
opportunities are legendary. A legal workforce is welcome but
an illegal workforce undermines our nation's security. It is
safe to assume that many illegal aliens in our country are
doing what we are all doing, working hard to make a good life
for themselves and their children.
What is different about them is they have broken the law to
do so. Employers have been required to determine the work
eligibility of their employees since 1986. Employers have two
methods for verifying employment eligibility of people who have
been offered employment. They can fill out the employment
eligibility verification, or I-9 form, which requires review of
the documents presented by the individual to determine work
eligibility.
Alternatively, employers can use what is referred to as a
basic pilot program. You will hear that referred to some today,
and I hope you understand it. It is a computer-based system
designed to weed out false claims of U.S. citizenship and
counterfeit or altered documents.
The system is designed to work almost instantaneously, and
I just asked Social Security if it was instant, and they said
it is. I do not believe it. But it has its shortcomings, and as
a result, there has been some criticism of the system.
A lot of you here today own businesses and abide by the law
when it comes to employee verification. As a result, in 2005,
the Social Security Administration sent about 128,000 no-match
letters to employees, no match meaning they did not match up as
legal, and about 8 million to employees. For those of you here
who are abiding by the law, we commend you. The fact remains,
however, that it is against the law to hire an illegal alien or
someone who is not authorized to work in the United States.
The U.S. House of Representatives passed an immigration
bill which would provide for increased penalties and the
potential for jail time for employers who knowingly violate the
law. The House bill would also increase the number of employers
who would be required to use the basic pilot program. Our
witnesses today will discuss their experiences in using the
basic pilot program, its impact on the functioning of their
businesses, and suggest improvements that could be made to the
system.
In addition, we will have a witness from Immigration and
Customs Enforcement, or ICE, everybody calls it ICE, I-C-E-,
now, who will discuss the consequences faced by those who fail
to comply with the law. ICE's mandate is broad. Eliminate and
identify criminal activities that pose a threat to our nation's
borders. I commend them for their work and welcome them to our
hearing.
[The prepared statement of Chairman Johnson follows:]
Prepared Statement of Hon. Sam Johnson, Chairman, Subcommittee on
Employer-Employee Relations, Committee on Education and the Workforce
Welcome, it's an honor to host and chair one of the ``hearings in
the heartland.'' Texans come face to face with illegal immigration
daily and that is why I was interested in having this discussion here,
rather than in Washington, D.C.
So you know, I've heard a lot about this issue from my
constituents.
In fact, about 4 out of 5 calls and emails are from constituents
who are fired up about our porous borders and want something done about
it.
I hear you--and I'm mad about it too. That's why we're having these
hearings, to get outside of Washington and to take these issues to
where they matter--in hometowns across America.
Today's hearing is the third in a series of hearings that the
Committee on Education and the Workforce and its subcommittees have
held to examine immigration reform proposals pending in both the House
and Senate.
As you all know, the subject of immigration--legal and illegal--has
garnered significant attention recently.
The hearing today will focus on practical solutions to preventing
illegal immigration.
Specifically, we will examine the enforcement of the employee work
eligibility laws that are currently on the books, and look at
legislative proposals that would implement a stronger employment
verification system.
This hearing is an interesting intersection between my
responsibilities on the Ways and Means Committee and Education and the
Workforce Committee.
As a member of the Social Security Subcommittee, I am well aware of
the difficulties facing the Social Security Administration as they
attempt to implement a workable employment verification system that
does not compromise an individual's privacy. We are working diligently
with the Social Security Administration to resolve these issues.
Clearly employment is the key factor that experts point to as to
why people come to this country.
Our economic opportunities are legendary. A legal workforce is
welcome, but an illegal workforce undermines our nation's security.
It's safe to assume that many illegal aliens in our country are
doing what we're all doing, working hard to make a good life for
themselves and their children.
What is different about them is that they have broken the law to do
so!
Employers have been required to determine the work eligibility of
their employees since 1986.
Employers have two methods for verifying employment eligibility of
people who have been offered employment.
They can fill out the employment eligibility verification, or I-9
form. This requires a review of the documents presented by the
individual to determine work eligibility.
Alternatively, employers can use what is referred to as the ``basic
pilot program.'' The basic pilot program is a computer-based system
designed to weed out false claims of U.S. citizenship and counterfeit
or altered documents. The system is designed to work almost
instantaneously, but it has its shortcomings and as a result, there has
been some criticism of the system.
A lot of you here today own businesses and abide by the law when it
comes to employee verification.
As a result, in 2005, the Social Security Administration sent about
128,000 no-match letters to employers and about 8 million no match
letters to employees.
For those of you here who are abiding by the law, we commend you.
The fact remains, however, that it is against the law to hire an
illegal alien or someone who is not authorized to work in the United
States.
The U.S. House-passed immigration bill would provide for increased
penalties and the potential for jail time for employers who knowingly
violate the law. The house bill would also increase the number of
employers who would be required to use the basic pilot program.
Our witnesses today will discuss their experiences in using the
basic pilot program, its impact on the functioning of their business,
and suggest improvements that could be made to the system.
In addition, we will have a witness from Immigration and Customs
Enforcement, or ICE, who will discuss the consequences faced by those
who fail to comply with the law.
ICE's mandate is broad: eliminate and identify criminal activities
that pose a threat to our nation's borders. I commend them for their
work and welcome them.
______
Chairman Johnson. I will introduce our witnesses in a
moment. I now yield to my distinguished colleague, John
Tierney, from Massachusetts, for whatever opening statement you
wish to make.
Mr. Tierney. Well, thank you, Mr. Chairman, and I want to
thank the folks here in Plano. We are pleased to be here and
really appreciate the hospitality we have been shown, even in
the short period of time that we have been here.
I was just telling the Chairman, I thought that with the
condition of this nice city facility, I thought maybe he had
gotten Federal money down here to build it.
You know, typically, we don't have hearings during the
month of August but for some reason, this year, my
understanding is the committees of Congress are having some 21
hearings around the country, a whole slew of them on this
particular issue.
Now the issue of immigration is of course important and it
has been for some time, but oddly enough, only now, with this
campaign season is the Republican Congress seeing fit to hold
hearings.
The bills on which we are holding hearings of course have
already been voted on. The House bill has already passed and
the Senate bill has already passed.
So in a sense, these hearings are about 6 years too late
and millions of dollars too short. If we could just review the
record for a moment since 2001. President Bush has been in
office since 2001. Congress has been controlled by the
Republican Party since 1995. So, in essence, in the last 6
years, it has been a Republican show, and Congress is charged
with making and enforcing the laws, so I think people would be
excused, if they wonder how it is, that with total control of
Congress and the White House for 6 years, the party that now
tells us, they are so vigorously running around the country
concerned about border security and enforcement, are just now
getting to deal with the issue of immigration.
But like a lot of issues, it gets a lot of rhetoric and not
a lot of action.
Mr. Chairman, under the Republican Party's leadership since
1995, 5.3 million new undocumented workers have come into the
United States.
In 2004, Congress passed the 9/11 Act. That act required an
additional 2000 border patrol agents over the next 5 years. But
in the 2006 budget request of the president, he only sought
210, about 10 percent, and Congress only funded about a
thousand, about half of what the act called for. And even this
year, the president doesn't look for the remainder of those
positions to be filled.
That same 2004 9/11 Act also called for 800 immigration
enforcement agents over the next 5 years. Congress, in the 2006
budget, only gave 350. So it is clear that our borders remain
porous and that we need to act, but it's not the fault of the
hard-working border patrol agents or the custom and immigration
agents. They have been doing the best they can with the staff
and the resources that they have.
Seven times, seven times over the last four and a half
years, Democrats have offered amendments to enhance border
security resources.
If those Democratic amendments had passed, and been
adopted, we would now have 6,600 more border patrol agents,
14,000 more detention beds, 2,700 more immigration agents. But
each of those efforts were rejected by the Republican majority.
Under President Bush, and with Republican majorities in
both the House and the Senate, immigration enforcement against
employers has fallen drastically.
In 1999, the Immigration and Naturalization Service, the
INS, had 240 agents. In 2003, the Immigration and Customs
Enforcement, ICE, as the Chairman said, only have ninety.
Audits of suspected use of undocumented labor has dropped.
It reached its peak under president Clinton of 8000, and its
valley under President Bush of 2,200. Fines initiated against
employers have plummeted. They are now a low priority.
In fiscal year 1999, President Clinton initiated fines
against 417 employers. In 2004, under President Bush, the
United States initiated only three actions against employers.
That is a 99 percent drop-off.
So it does seem a bit of odd timing, that the order of
events as situated brings us to Plano today, and to 21 other
places around the country, this August.
But today's hearing is going to focus on employment and the
enforcement of employment eligibility laws, and how the
electronic employment verification system should work.
We are going to hear from our witnesses, and I appreciate
the fact that they're taking time out of their busy days to be
with us today.
But Mr. Chairman, once again, this issue may, in a sense,
be missing the beat a little bit. The title of this hearing,
Enforcing Employee Work Eligibility Laws begs the question. In
order to enforce employee's eligibility, the subject has to be
an employee, and I think therein lies the rub in some of this.
Over the last few years, with increasing lax enforcement of
labor laws, there has been an increasing trend among employers
to reclassify or misclassify workers as something other than
employees, to treat employees as independent contractors.
This practice lets employers avoid immigration laws, and it
also has them avoid all of our labor employment laws. In an
employment verification system, if you're not an employee, then
there's no reason to check on immigration status and verify it.
In employee rights regimes, if you are not an employee, you
simply don't get any employee rights. You can set up a
verification system and you can try to enforce it, but if
you're not classifying workers as employees, you're not likely
to do anything more than be chasing your tail.
If you are not first attempting to enforce the labor laws
and the employment laws, and making sure employers are properly
classifying workers and employees, then any discussion of
verifying immigration status seems to be pointless.
If we talk about enforcement, as I said, we have seen a
failure over these last 6 years of the administration to
enforce those laws, and a failure by Congress to actually have
the oversight.
I mentioned the figures of 417 notices to employers in
1999, and only three in 2004. The number of unauthorized
workers arrested at a work site has declined by 84 percent. And
I could go on.
The hospitality seems to be declining somewhat, Mr.
Chairman. If I could just wrap up, I would appreciate that. I
know your hospitality exceeds that of some of the others.
On labor law enforcement, we have had a steep downward
slide under the Bush administration. The laws are supposed to
protect all the workers, whether they're documented or
undocumented. If we are serious about protecting the rights and
living standards of our American workforce, and if we are
serious about reducing or eliminating the incentives for
employing undocumented workers, then we have to be serious
about tough and effective labor law enforcement.
An undocumented worker is an exploitable worker. Employees
can pay them less, or not at all, and keep them under constant
threat of arrest and deportation if they attempt to complain
about labor law violations.
If you remove that exploitability, then you remove a major
incentive to use undocumented workers, and you ensure that the
American workers receive the full protection of the law.
Mr. Chairman, I think that is what we might concentrate on
in this hearing, is making sure that we have the full
enforcement of all the laws, both labor rights as well as the
immigration laws and verification, and I look forward to the
testimony of our witnesses, and I thank you for your courtesy
in allowing me to finish my statement.
[The prepared statement of Mr. Tierney follows:]
Prepared Statment of Hon. John F. Tierney, a Representative in Congress
From the State of Massachusetts
Mr. Chairman, I am pleased to be here. We typically don't have
hearings during recesses but, for some reason, the committees of the
Congress are scurrying around the country holding a slew of hearings
this August recess. I have to wonder why that is. The issue of
immigration reform is an important one. We're in the midst of an
immigration crisis in this country--and only now, in this campaign
season, is the Republican Congress seeing fit to hold hearings on an
issue for which it cannot show a single accomplishment.
Let's take a look at the record leading up to this turn of events:
Under your party's leadership in the Congress, since 1995,
we have seen 5.3 undocumented workers enter the country.
In 2004, Congress enacted the 9/11 Act, which required an
additional 2,000 Border Patrol agents being hired over each of the next
five years. It sounds good, but the President and Congress have not
provided the resources to make it happen. The FY2006 budget from the
President only called for 210 additional Border Patrol agents, and the
Congress turned around and only funded for 1,000 agents. And the
President's FY2007 budget still does not adequately fund for Border
Patrol.
The 2004 9/11 Act also called for 800 more immigration
enforcement agents over the next five years. But Congress's FY2006
budget only allowed for 350.
Republicans in Congress have repeatedly voted down
attempts by Democrats to adequately fund Homeland Security and
implement the 9/11 Committee's recommendations on border security.
Only now, in the summer before an election, do we see this
concerted campaign to hold hearings on the immigration issue
nationwide. Only now, after the House passed an ill-conceived
immigration reform bill, do we bother to have hearings.
It's an odd timing, an odd order of events, but let's get down to
business.
This hearing today deals with the enforcement of employment
eligibility laws and how electronic employment verification systems
should work.
But, Mr. Chairman, once again on this issue, we are missing the
boat. The title of this hearing begs the question. ``Enforcing Employee
Work Eligibility Laws.'' If you want to enforce an employee's
eligibility to work under immigration laws, they have to be an
employee. And there's the rub.
Over the last several years, we have seen an increasing trend among
employers to reclassify and misclassify workers as something other than
employees, to treat employees as independent contractors. This practice
not only allows employers to get out from under immigration laws--such
as complying with I-9 requirements--but also out from under all of our
labor and employment laws. In an employment verification system, if
you're not an employee, there is no immigration status to verify. In an
employee rights regime, if you're not an employee, you have no employee
rights.
We can set up an employment verification system. We can go about
trying to enforce it. But if we're not classifying workers as
employees, we're like a dog chasing its tail.
So a key question for any attempt to enforce employees' work
eligibility is whether we are enforcing our labor and employment laws
or whether we are standing by and letting the entire regime of
employer-employee relations to recede into a more informal economy. If
we're not first attempting to enforce our labor and employment laws,
and making sure employers are classifying workers correctly as
employees, then any discussion of verifying a person's employment
status is pointless. It's all for show.
So let's talk about enforcement. We have not held a single, focused
oversight hearing on the Department of Labor during this
Administration--how and whether the Department is enforcing our labor
and employment laws. The last several years we have seen a failure by
this Administration to enforce either immigration laws or labor laws,
both of which are critical to a sound immigration policy. This Congress
has failed to hold the Administration accountable and failed to address
these issues for far too long. And now the country is reaping the fruit
of those failures.
Let's first talk about immigration law enforcement.
On immigration, enforcement has fallen precipitously under
the Bush Administration. The GAO recently reported some stunning
numbers. The number of notices of intent to fine employers for
improperly completing I-9 forms dropped 99% between 1999 and 2004, from
417 notices in 1999 to just 3 in 2004.
The number of unauthorized workers arrested during
worksite enforcement operations declined by 84% between 1999 and 2003,
from 2,849 in 1999 to only 445 in 2003.
On labor law enforcement, the trend has also been on a steep
downward slide during the Bush Administration. These laws are supposed
to protect all workers, US-born and immigrant, documented and
undocumented. If we are serious about protecting the rights and living
standards of our American workforce, and if we are serious about
reducing or eliminating the incentives for employing undocumented
workers, then we have to be serious about tough and effective labor law
enforcement. An undocumented worker is an exploitable worker--employers
can pay them less or not at all, or keep them under constant threat of
arrest and deportation if they attempt to complain about labor law
violations. If you remove that exploitability, then you remove a major
incentive to use undocumented workers. And you ensure that American
workers receive the full protection of the law.
But, across the board, we see a lack of focus on labor law
enforcement.
The Department of Labor's Wage and Hour Division, which
enforces our minimum wage, overtime, and child labor laws, has seen
repeated budget and staffing cuts during this Administration and under
this Congress. The number of Wage and Hour investigators dropped from
946 to 788 between 2000 and 2004. What was the impact? A 15% decline in
the number of compliance actions completed by the Labor Department.
The Occupational Safety and Health Administration, or
OSHA, has seen similar budget and staffing cuts. For example, the
President's latest budget request for OSHA results in more than an 8%
cut in OSHA staffing, or the loss of 197 total positions at OSHA, since
2001. At current levels, there is one OSHA staff person for every 1,700
employers--and that's counting administrative as well as enforcement
staff.
When it comes to enforcing the right of workers to
organize, our labor laws are tragically weak. The penalties for
violating a worker's right to join with his fellow workers and attempt
to win better pay and benefits and working conditions are so meager
that many employers simply ignore the law. Every year, 22,000 workers
are unlawfully fired or otherwise discriminated against for exercising
their rights to associate.
And, again, none of these laws, not work eligibility laws,
not immigration laws, not labor laws, can be enforced if we allow
employers to treat workers as something other than employees. More and
more, we see workers lose all rights under our labor laws through
misclassification--where employers misclassify an employee as an
independent contractor or something other than a bona fide employee.
Indeed, the Bush Administration encourages this practice--of pulling
more and more workers out from under our laws. For example, the Bush
National Labor Relations Board has been very keen to reclassify entire
categories of workers as something other than workers, stripping them
of their rights--whether it is newspaper carriers, graduate teaching
assistants, disabled workers, and now possibly, in a pending case,
nurses and highly skilled construction trades workers.
So when we set up a system of employment verification before first
making sure employers are treating all their workers as employees, we
have put the cart before the horse. When we pass an ill-conceived
immigration bill and then hold hearings about it, we have put the cart
before the horse. It is time that we stop putting other considerations
ahead of the interests of the American people. It is time that we focus
on practical solutions to the immigration crisis. It is time that we
get serious about enforcement. It is time that we get serious about
workers' rights. And it is time that we get serious about doing our
jobs when it comes to oversight.
______
Chairman Johnson. Thank you, Mr. Tierney.
I might add that those of you who couldn't understand
everything he said, he is from Massachusetts.
I would at this time now yield to my distinguished
colleague, Congressman Joe Wilson, from South Carolina, for
whatever statement you wish to make.
Mr. Wilson. Thank you, Mr. Chairman. I am glad to be from
Southern Massachusetts of South Carolina.
I want to thank Chairman Sam Johnson for conducting today's
hearing. It is an honor to be in the home of one of America's
great heroes. I am a 31 year veteran myself, of the Army
National Guard. I have four sons who serve in the military, and
we look at Sam Johnson as a model of being a hero for the
American people, Mr. Chairman, so thank you.
And I feel of course at home being here in Plano, in that
South Carolina shares the bond of having had persons serve at
the Alamo, and so we again respect the heritage that we have
between South Carolina and Texas.
Our discussion will center on the key issue of debate
surrounding illegal immigration, that is, employee verification
systems and employer enforcement. The House border security
bill incorporates stringent measures for verifying and
complying with employee eligibility.
Such provisions are sadly absent from the Reid-Kennedy
Senate bill. I particularly understand the differences because
in my legal career, I practiced some immigration law as a
strong supporter of legal immigration.
As an indication of the gaps, for example, employers are
currently required to inspect employees' Government-issued
identification and require them to complete an I-9 form
attesting to their work eligibility.
In addition to these requirements, employers may choose to
screen employees through the basic pilot program which
electronically verifies employees work eligibility through the
Social Security and Department of Homeland Security.
While both the House border security bill and the Reid-
Kennedy bill make participation in the basic part of the plan
mandatory, the House bill requires employers to ensure that all
of the employees are legally able to work in the United States.
That is current and in the future.
In contrast, the Reid-Kennedy bill only extends the
requirement to employees hired after the bill is law, not to
the current employees.
Mr. Chairman, this defines logic. Employers should be held
accountable for all of their employees, not just those hired
after an arbitrary date. I believe, strongly, that as House
Republicans take our case to the American people in August,
with such hearings as we are conducting today, we will hear the
same response.
The American people understand the historic differences
between the House bill and the Reid-Kennedy bill. We are at a
crossroads today in the United States. We can choose to
effectively address our growing illegal immigration problem or
we can turn a blind eye.
As we continue this debate, I hope Democrats in Congress
will realize that what the average American already
understands, we cannot address illegal immigration without
addressing security at the border.
This passed the House in December with only strong
Republican support. It is my belief that progress has been
blocked by the Democratic closure threat in the Senate.
In conclusion, God bless our troops and we will never
forget September the 11th.
[The prepared statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, a Representative in Congress
From the State of South Carolina
Thank you, Mr. Chairman. I want to thank Chairman Sam Johnson for
conducting today's hearing. Our discussion will center on a key issue
in the debate surrounding illegal immigration: employee verification
systems and employer enforcement.
The House border security bill incorporates stringent measures for
verifying and complying with employee eligibility. Such provisions are
sadly absent from the Reid-Kennedy Senate bill.
For example, employers are currently required to inspect employees'
government-issued identification and require them to complete an I-9
form attesting to their work eligibility. In addition to these
requirements, employers may choose to screen employees through the
Basic Pilot Program, which electronically verifies employees' work
eligibility through the Social Security Administration and Department
of Homeland Security.
While both the House border security bill and the Reid-Kennedy bill
make participation in the Basic Pilot Program mandatory, the House bill
requires employers to ensure that ALL of their employees are legally
able to work in the United States. In contrast, the Reid-Kennedy bill
only extends the requirement to employees hired AFTER the bill's
enactment. Mr. Chairman, this defies logic. Employers should be held
accountable for ALL of their employees--not just those hired after an
arbitrary date.
In conclusion, I believe strongly that as House Republicans take
our case to the American people in August with such hearings as we are
conducting today, we will hear the same response: the American people
are on our side!
We are at a crossroads today in the United States. We can choose to
effectively address our growing illegal immigration problem or we can
turn a blind eye.
As we continue to debate this issue, I hope Democrats in Congress
will realize what the average American already understands: We cannot
address illegal immigration without addressing border security.
______
Chairman Johnson. This hearing is going to be conducted
under the rules of the House of Representatives. As such we
have invited witnesses for a thorough discussion of the issues.
I know many of our attendees today want the opportunity to have
their voices heard on the subject of today's hearing, and I
would invite you to submit your statement for the record.
I know that some of you have received cards or paper to
make comments on. It is not allowable for you to make comments
publicly in the hearing. Our witnesses will and we will
question them. But you are welcome to write your comments on
those comment cards, which are in the back of the chamber, and
if you want to provide your statement to the committee, we
would thank you for your interest.*
---------------------------------------------------------------------------
*Submitted and placed in permanent archive file, comments submitted
by public attending hearing. Plano, Texas. July 31, 2006.
---------------------------------------------------------------------------
With that, let me say that even any emotion, such as
clapping, is not allowed in the House. However, I am going to
allow that here today as long as it doesn't get out of hand,
and I think you all recognize that one of our members is a
Democrat, the other member on my left is a Republican, and we
have structured our witnesses in the same manner.
Thank you, Mr. Wilson, for your comment.
We have a very distinguished panel of witnesses before us
today, and I would like to thank all of you for coming and
begin by introducing them.
Mr. John Chakwin currently serves as special agent in
charge of the United States Customs and Enforcement Office of
Investigation in Dallas. Mr. Chakwin oversees the immigration
and customs-related investigation for North Texas and Oklahoma.
He has more than 27 years of law enforcement experience and
holds degrees from the University of Delaware and from George
Washington University. I think we are going left to right; is
that right? Right to left. OK.
Abel Martinez is a vice president, primarily responsible
for risk management and compliance at H-E-B in San Antonio. He
has extensive experience representing management and employers
in Texas, and the Federal courts relating to labor disputes,
discrimination suites, OSHA and Texas Workforce Commission
proceedings, and all other matters involving the employer-
employee relationship.
Mr. Martinez holds degrees from St. Mary's University and
the University of Houston Law Center.
Ms. Geri Simmons is testifying on behalf of the Society for
Human Resource Management. Ms. Simmons has more than 15 years
experience as an executive in human resources and business
development. She is well-versed in employment law, labor
relations, and other human resources practices.
Ms. Simmons holds degrees with honors from MidAmerica
University and the University of Kansas.
Professor Bill Beardall is a clinical professor of law at
the University of Texas School of Law. Professor Beardall's
practice has focused on civil rights and employment law for
low-income individuals. He is also the executive director of
the Equal Justice Center which is active in projects to assist
workers.
Professor Beardall holds degrees from Rhodes College and
Harvard Law School.
Mr. Jon Luther is the chief executive officer of Dunkin'
Donuts, and is a 35 year veteran of the food service industry.
He has a distinguished career building brands for various food
service outlets. Mr. Luther holds a degree in hotel and
restaurant management from Paul Smith College.
I thank you all for being here and before the witnesses
begin their testimony, I would like to remind members, we will
be asking questions after the entire panel has testified. In
addition committee rule 2 imposes a 5-minute time limit on all
questions. Also, we would ask you to limit your comments to 5
minutes, and any additional comments you wish to place in the
record will be approved, without objection.
OK. I will call on Mr. John Chakwin.
STATEMENT OF JOHN CHAKWIN, JR., SPECIAL AGENT IN CHARGE, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT
Mr. Chakwin. Chairman Johnson and members of the
subcommittee, it is an honor for me to appear before you today
to share U.S. Immigration and Custom Enforcement's perspective
on worksite enforcement and how ICE investigates and prosecutes
employers who engage in the hiring of illegal aliens.
Working throughout the nation's interior, together with our
DHS and other Federal counterparts, and with the assistance of
state and local enforcement entities, ICE is vigorously
pursuing the most egregious employers of illegal workers.
ICE is educating the private sector to institute best
hiring practices, and with its support is identifying systemic
vulnerabilities that may be exploited to undermine immigration
and border controls.
A large part of our worksite enforcement efforts focus on
preventing access to critical infrastructure sectors and sites
to prevent terrorism and to apprehend those individuals who aim
to do us harm.
In the past, immigration investigators, to different
degrees over the course of time, focused on worksite violations
by devoting a large percentage of investigative resources to
enforcement of the administrative employer sanctions provisions
of the IRCA.
The resulting labor-intensive inspections and audits of
employment eligibility documents only resulted in serving
businesses with a Notice of Intent to Fine. Monetary fines that
were routinely mitigated or ignored had little to no deterrent
effect. Egregious violators of the law viewed the fines as just
a cost of doing business and therefore the system did not serve
as a true economic inducement for them to change their business
model.
ICE's current worksite enforcement strategy is part of a
comprehensive layered approach that focuses on how illegal
aliens get into our country, the ways in which they obtain
identity documents allowing them to become employed, and the
employers who knowingly hire them.
ICE is bringing criminal prosecutions and using asset
forfeiture as tools against employers of illegal aliens far
more than administrative fines as a sanction against such
activity.
Using this approach, ICE worksite investigations now
support felony charges and not just the traditional misdemeanor
worksite violations.
Of course a key component of our worksite enforcement
efforts target the businesses and industries that deliberately
profit from the wholesale employment of illegal aliens.
In April of 2006, ICE conducted the largest such worksite
enforcement operation ever undertaken. This case involved IFCO,
a Houston-based company. ICE agents executed nine Federal
arrest warrants, 11 search warrants, and 41 consent searches at
IFCO sites throughout the United States.
In addition, ICE agents apprehended 1,187 unauthorized
workers at IFCO worksites. The criminal defendants have been
charged with conspiracy to transport and harbor unlawful aliens
for financial gain, as well as fraud and misuse of immigration
documents.
ICE launched several investigations to enhance national
security and public safety here in Texas and throughout the
nation. Operation Tarmac, a worksite enforcement investigation
of companies that employed illegal aliens in secure areas of
the Dallas/Fort Worth International Airport, resulted in the
removal of over 65 illegal aliens. An ICE spin-off
investigation of this worksite enforcement operation
subsequently focused on two Dallas/Fort Worth employers,
Midwest Airport Services, Midwest and its parent company,
Service Performance Corporation.
As a result of ICE's continued efforts, both companies were
convicted in May 2006 of immigration violations related to the
employment of illegal aliens and were fined a total of
$750,000. Furthermore, seven managers, including the former
president of Midwest, were convicted of immigration violations.
Another example of ICE's worksite enforcement efforts is the
arrest and removal last year of 60 illegal aliens that had been
employed Brock Enterprises in their petrochemical refineries,
power plants and other critical infrastructure facilities in
six states. of those 60 illegal aliens, more than 40 were
apprehended and removed from Brock Enterprise facilities
located here, in the State of Texas.
The magnet of employment is clearly fueling illegal
immigration, but the vast majority of employers do their best
to comply with the law.
However, the growing prevalence of counterfeit documents
interferes with the ability of legitimate employers to hire
lawful workers. In short, the employment process cannot
continue to be tainted by the widespread use and acceptance of
fraudulent identification documents.
Accordingly, in April 2006, Deputy Attorney General Paul
McNulty, and Assistant Secretary of Homeland Security for ICE,
Julie Myers, announced the created of a ICE-led Document and
Benefit Fraud Task Force in 11 major metropolitan areas.
These task forces focus on the illegal benefit and
fraudulent document trade that caters to aliens in need of
fraudulent documents in order to obtain illegal employment.
The DBF Task Forces are built on strong partnerships with
U.S. Citizenship and Immigration Services, the Social Security
Administration, the Postal Inspection Service, and the
Departments of State, Justice and Labor.
The task forces identify, investigate, and dismantle
organizations that supply identity documents that enable
illegal aliens, terrorists, and other criminals to integrate
into our society undetected and to obtain employment or other
immigration benefits.
We look forward to working with Congress as it considers
comprehensive immigration reform, including proposals to
enhance worksite enforcement.
The administration has sought the authority to have
additional access to Social Security administration no-match
data to improve immigration enforcement. Greater access to no-
match data would provide important direction to ICE
investigators to target their enforcement actions toward those
employers who have a disproportionate number of these no
matches, who have reported earnings from multiple employees on
the same number, and who are therefore likely to be engaging in
unlawful behavior.
Chairman Johnson. Could you try to tighten up, please.
Mr. Chakwin. Yes. The administration has proposed a
streamlined administrative fines and penalties process that
gives the DHS secretary the authority to administer and
adjudicate fines and penalties.
And thank you for inviting me. I would be glad to answer
any questions at this time.
[The prepared statement of Mr. Chakwin follows:]
Prepared Statement of John Chakwin, Special Agent in Charge, U.S.
Immigration and Customs Enforcement, U.S. Department of Homeland
Security
Chairman Johnson and members of the subcommittee, it is an honor
for me to appear before you today to share U.S. Immigration and Customs
Enforcement's (ICE's) perspective on worksite enforcement and how ICE
investigates and prosecutes employers engaged in the hiring of illegal
aliens.
Introduction
Among the Department of Homeland Security (DHS) law enforcement
agencies, ICE has the most expansive investigative authority and the
largest force of investigators. Our mission is to protect our Nation
and the American people by targeting the people, money and materials
that support terrorist and criminal activities. The men and women of
ICE accomplish this by investigating and enforcing the nation's
immigration and customs laws. Working throughout the nation's interior,
together with our DHS and other federal counterparts and with the
assistance of state and local law enforcement entities, ICE is
vigorously pursuing the most egregious employers of illegal workers.
ICE is educating the private sector to institute best hiring practices,
and with its support is identifying systemic vulnerabilities that may
be exploited to undermine immigration and border controls. A large part
of our worksite enforcement efforts focuses on preventing access to
critical infrastructure sectors and sites to prevent terrorism and to
apprehend those individuals who aim to do us harm. That is why the
Administration has proposed a comprehensive overhaul of the employment
verification and the employer sanctions program as part of the
President's call for comprehensive immigration reform.
The 1986 IRCA and Lessons Learned
ICE has substantial experience as a result of its role in
implementing the 1986 Immigration Reform and Control Act (IRCA). We
know its strengths and shortcomings and I believe it will be beneficial
to provide a quick review of worksite enforcement under IRCA.
In the past, immigration investigators, to different degrees over
the course of time, focused on worksite violations by devoting a large
percentage of investigative resources to enforcement of the
administrative employer sanctions provisions of IRCA. The resulting
labor-intensive inspections and audits of employment eligibility
documents only resulted in serving businesses with a Notice of Intent
to Fine (NIF) or a compliance notice. Monetary fines that were
routinely mitigated or ignored had little to no deterrent effect. The
results were far from effective and the process involved endless
attorney and agent hours in discovery and litigation to adjudicate and
resolve cases. Egregious violators of the law viewed the fines as just
a ``cost of doing business'' and therefore the system did not serve as
a true economic inducement for them to change their business model.
Moreover, while IRCA required employers to review identity
documents demonstrating employment eligibility, its compliance standard
rendered that requirement meaningless and essentially sheltered
employers who had hired unauthorized aliens. Under the 1986 law, an
employer could comply with the eligibility verification process by
reviewing a document that reasonably appeared to be genuine. Employers
were not required to verify the validity of a document and were not
required to maintain a copy of the documents that they reviewed. The
ability of the employer to rely on the facial validity of a single
document and the lack of available evidence permitting after-the-fact
review of the employer's assessment routinely prevented the government
from proving that the employer knew the employee was not authorized to
work. Thus, the law should reasonably require the employer to retain
copies of relevant documents and information obtained during the
verification process, as well as during the subsequent employment of a
worker. It should also not allow unscrupulous employers to ignore
highly questionable documentation or other facts indicative of
unauthorized status.
Another detrimental result of the documentation compliance standard
established under IRCA was explosive growth in the profitable false
document industry catering to undocumented workers seeking employment.
Worksite Enforcement: A New and Better Approach
ICE's current worksite enforcement strategy is part of a
comprehensive layered approach that focuses on how illegal aliens get
to our country, the ways in which they obtain identity documents
allowing them to become employed, and the employers who knowingly hire
them.
The ICE worksite enforcement program is just one component of the
Department's overall Interior Enforcement Strategy and is a critical
part of the Secure Border Initiative.
ICE is bringing criminal prosecutions and using asset forfeiture as
tools against employers of illegal aliens far more than administrative
fines as a sanction against such activity. Using this approach, ICE
worksite investigations now support felony charges and not just the
traditional misdemeanor worksite violations under Section 274A of the
Immigration and Nationality Act.
Of course, a key component of our worksite enforcement efforts
targets the businesses and industries that deliberately profit from the
wholesale employment of illegal aliens. In April of 2006, ICE conducted
the largest such worksite enforcement operation ever undertaken. This
case involved IFCO Systems, a Houston-based company. ICE agents
executed nine federal arrest warrants, 11 search warrants, and 41
consent searches at IFCO worksite locations throughout the United
States. In addition, ICE agents apprehended 1,187 unauthorized workers
at IFCO worksites. This coordinated enforcement operation also involved
investigative agents and officers from the Department of Labor, the
Social Security Administration, the Internal Revenue Service, and the
New York State Police. The criminal defendants have been charged with
conspiracy to transport and harbor unlawful aliens for financial gain
(8 U.S.C. 1324 and 18 U.S.C. 371), as well as fraud and misuse of
immigration documents (18 U.S.C. 1546).
Worksite enforcement combats alien smuggling. Alien smuggling is
the importation of people into the United States involving deliberate
evasion of immigration laws. This offense includes bringing illegal
aliens into the United States, as well as the unlawful transportation
and harboring of aliens already in the United States. In the last few
months, we have made arrests at employment agencies that served as
conduits between the criminal organizations that smuggle illegal aliens
into this country and the employers that willfully employ them.
As a result, and in immediate response to 9/11, ICE launched
several investigations to enhance national security and public safety
here in Texas and throughout the Nation. In 2002, Operation Tarmac, a
worksite enforcement investigation of companies that employed illegal
aliens in secure areas of the Dallas/Ft. Worth International Airport
(DFW), resulted in the removal of over 65 illegal aliens. An ICE spin-
off investigation of this worksite enforcement operation subsequently
focused on two DFW employers, Midwest Airport Services (Midwest) and
its parent company, Service Performance Corporation (SPC). As a result
of ICE's continued efforts, both companies were convicted in May 2006
of immigration violations related to the employment of illegal aliens
and were fined a total of $750,000. Furthermore, seven managers,
including the former president of Midwest, were convicted of
immigration violations.
In June of this year, an ICE investigation apprehended 55 illegal
aliens working at a construction site at Dulles International Airport,
just outside Washington, DC. Effective homeland security requires
verifying not just the passengers that board the planes, but also the
employees that work at the airports and have access to secure and
sensitive areas that can be exploited by terrorists or other criminals.
Another example of ICE's worksite enforcement efforts is the arrest
and removal last year of 60 illegal aliens that had been employed by
Brock Enterprises in their petrochemical refineries, power plants and
other critical infrastructure facilities in six states. Of those 60
illegal aliens, more than 40 were apprehended and removed from Brock
Enterprise facilities located here, in the State of Texas.
Worksite enforcement also combats human trafficking. Through its
worksite enforcement actions, ICE has dismantled forced labor and
prostitution rings, be they Peruvian aliens in New York or Chinese
aliens in Maryland. The common threads are the greed of criminal
organizations and the desire of unwitting aliens to come here to work.
Human trafficking cases represent the most egregious forms of
exploitation, as aliens are forced to work and live for years in
inhumane conditions to pay off the debt they incur for being smuggled
into the country.
Worksite enforcement combats trafficking in counterfeit goods,
commercial fraud, financial crimes, and export violations. ICE
enforcement efforts leverage our legacy authorities to fully
investigate offenses that involve the employment of illegal aliens to
promote and further these other crimes.
By careful coordination of our detention and removal resources and
our investigative operations, ICE is able not only to target the
organizations unlawfully employing illegal workers, but to detain and
expeditiously remove the illegal workers encountered. For example, in a
recent case in Buffalo, New York, involving a landscape nursery, 34
illegal workers were apprehended, detained, and voluntarily repatriated
to Mexico within 24 hours.
Such actions send a strong message to illegal workers here and to
foreign nationals in their home countries that they will not be able to
move from job to job in the United States once ICE shuts down their
employer. Rather, they will be detained and promptly deported.
Another recent example of our worksite efforts occurred in May of
2006, when 85 unauthorized workers employed by Robert Pratt and other
sub-contractors for Fischer Homes, Inc., were arrested as part of an
ICE-led joint federal, state, and local investigation. In this case the
targets of the investigation knowingly harbored, transported, and
employed undocumented aliens. Five supervisors were arrested and
charged with harboring illegal aliens.
What impact will this have? Criminally charging employers who hire
undocumented aliens will create the kind of deterrence that previous
enforcement efforts did not generate. We are also identifying and
seizing the assets that employers derive from knowingly employing
illegal workers, in order to remove the financial incentive to hire
unauthorized workers and to pay them substandard wages.
The magnet of employment is clearly fueling illegal immigration,
but the vast majority of employers do their best to comply with the
law. ICE has provided training and tools on its website to help
employers avoid violations. However, the growing prevalence of
counterfeit documents interferes with the ability of legitimate
employers to hire lawful workers. In short, the employment process
cannot continue to be tainted by the widespread use and acceptance of
fraudulent identification documents.
Accordingly, in April 2006, Deputy Attorney General Paul McNulty
and Assistant Secretary of Homeland Security for ICE Julie Myers
announced the creation of ICE-led Document and Benefit Fraud (DBF) Task
Forces in 11 major metropolitan areas. These task forces focus on the
illegal benefit and fraudulent document trade that caters to aliens in
need of fraudulent documents in order to obtain illegal employment. The
DBF Task Forces are built on strong partnerships with U.S. Citizenship
and Immigration Services, the Social Security Administration, the U.S.
Postal Inspection Service and the Departments of State, Justice and
Labor. The task forces identify, investigate, and dismantle
organizations that supply identity documents that enable illegal
aliens, terrorists, and other criminals to integrate into our society
undetected and to obtain employment or other immigration benefits.
New Tools
ICE has made substantial improvements in the way it investigates
and enforces worksites. DHS supports several of the additional tools
contained in pending legislation. We look forward to working with
Congress as it considers comprehensive immigration reform, including
proposals to enhance worksite enforcement.
Social Security No-Match data
The Administration has sought the authority to have additional
access to Social Security Administration no-match data to improve
immigration enforcement. Greater access to no-match data would provide
important direction to ICE investigators to target their enforcement
actions toward those employers who have a disproportionate number of
these no-matches, who have reported earnings for multiple employees on
the same number and who are therefore more likely to be engaging in
unlawful behavior.
Fines and Penalties: A Proposed Model
Although criminal prosecution of egregious violators is our primary
objective in worksite cases, a need exists for a new and improved
process of issuing fines and penalties that carry a significant
deterrent effect and that are not regarded as a mere cost of doing
business. The United States can have an effective worksite enforcement
program only with a strong compliance program, combined with issuance
of meaningful, enhanced penalties that compound for repeat offenders.
The Administration has proposed a streamlined administrative fines
and penalties process that gives the DHS Secretary the authority to
administer and adjudicate fines and penalties. We would further propose
a penalty scheme that is based on clear rules for issuance, mitigation
and collection of penalties.
As I have outlined in my testimony, ICE has greatly advanced its
worksite enforcement program and its efforts are part of a
comprehensive strategy that focuses on several different layers of the
problem simultaneously, including illegal employment, document and
benefit fraud, and smuggling.
Our responsibility at ICE is to do everything we can to enforce our
laws, but enforcement alone will not solve the problem. Accordingly,
the President has called on Congress to pass comprehensive immigration
reform that accomplishes the following objectives: strengthening border
security; ensuring a comprehensive interior enforcement strategy that
includes worksite enforcement; establishing a temporary worker program;
and addressing the population of undocumented workers already in the
United States. Achieving these objectives will dramatically improve the
security of our infrastructure and reduce the employment magnet that
draws illegal workers across the border, while eliminating the mistakes
that accompanied the 1986 legislation.
ICE is dedicated and committed to this mission. ICE agents are
working tirelessly to attack the egregious unlawful employment of
undocumented aliens that subverts the rule of law. We are working more
intelligently and more efficiently to ensure the integrity of our
immigration system. That is why we, and the President, support
comprehensive immigration reform that includes interior and border
enforcement in addition to a temporary worker program and a plan for
addressing the current illegal population. We look forward to working
with this Subcommittee in our efforts to secure our national interests.
Thank you for inviting me and I will be glad to answer any questions
you may have at this time.
______
Chairman Johnson. Thank you, sir.
I appreciate your comments. Mr. Martinez, you are welcome
to begin.
STATEMENT OF ABEL MARTINEZ, VICE PRESIDENT, PARTNER RELATIONS,
RISK MANAGEMENT AND COMPLIANCE, H-E-B
Mr. Martinez. Chairman Johnson, committee members, I want
to say thank you, first of all, not just for allowing me the
opportunity to be here and give you my views and opinions on an
employment verification system, but thank you for all the work
that you do each and every day.
Chairman Johnson. Get a little closer to the mic.
Mr. Martinez. I was going to say I just want to thank the
committee, and Chairman, the work that you do every day to help
our great country and the great State of Texas. I know this is
a very contentious issue, regardless of which side you are on.
Everybody has their opinions on this very important issue, and
it is a very important issue for our country and the State of
Texas.
I just really want to introduce myself, Abel Martinez. I am
with H-E-B. I don't know how much you guys know about H-E-B out
there in the audience, but, you know, what we do is we are a
company that have been around for a 100 years.
We grew up small. We started in 1905. We started with one
store. We think of ourselves as retailers who focus on the
grocery business. We now have 300 stores. We do business in
Texas and Mexico. We have over 12 billion in sales, and I think
one thing that really sets us apart from a lot of our
competitors or other companies is that we donate over 5 percent
of our pretax dollars to nonprofit organizations in communities
that we serve and in communities that we don't serve.
So I think that kind of explains a little bit about our
culture and what we do, and when it comes to immigration
enforcement, I think we are very good on making sure we follow
the law, and we expect the people we do business with, our
vendors and contractors, to also follow the law.
Of course we comply with I-9 requirements. We train our
folks that do the interviewing and the hiring on I-9
requirements. We have had INS come in, Department of Homeland
Security come in to do training for us, as well on I-9
requirements.
We conduct annual audits, and on 60,000 employees who we
call partners, that's not always an easy and inexpensive task,
but we do that because we realize how important it is to make
sure our workforce is here legally.
We also require our contractors to ensure, both
contractually, that they are complying with I-9 laws, and we
require them to sign a notarized written affidavit under the
law, under the penalties of perjury, that they are complying
with all I-9 requirements as well.
And I can sit here and testify about the need for stronger
enforcement because I think we need it. I can testify about the
need for better verification systems because I think we need
it. I also can testify about the needs we have to make sure
that we fix our system, and we have a comprehensive immigration
reform system that will address the issues that we face today.
As far as the Senate Bill 2611, and the House Bill 4437,
each one of those bills takes into consideration some
employment verification measures. We believe that some of the
provisions in each bill are good. We think some of the
provisions in each bill aren't so good, they need some work,
and so I would like to hit on a few of them, and I strongly
support a verification system that is fast, that is efficient,
and accurate. I think those are extremely important in any type
of verification that we have.
And when it comes to making sure our system is fast, I
think we should strive toward a system that allows employers to
be able to determine whether or not they should hire somebody
within 24 hours.
Chairman Johnson, you stated earlier that the Social
Security Administration told you that it was instant. I have a
hard time understanding that because I know from time to time,
it does take days and days to get back confirmation on someone
you are running a check on.
So I see an issue there. We need to speed up the process,
and I am hoping that Congress can dedicate enough resources to
make sure that we have a system that will work.
At H-E-B, we conduct a criminal background check on every
single employee we hire, and we usually get those results back
within 24 hours, and it's a third party independent company
that we use. They, at some times, will go in and check
courthouse records manually, to determine whether or not
somebody has a criminal background, and as part of that
process, they are able to turn around those results within 24
hours.
I am hopeful that Social Security Administration, with one
data base, would be able to have that information and be able
to turn that around within 24 hours. That would be extremely
helpful to employers and be extremely helpful to enforce the
laws of the United States.
So I ask the committee to look at that and really push
very, very aggressively on a system that would be fast, 24
hours, and a system that will allow us to also have a
conditional offer of employment based upon conducting that
verification on employment status.
Right now, what we have is within 3 days of hire, you have
to fill out the I-9 form, a paper form, and then after that you
wait for, you know, basically some results from the basic pilot
program to give you those results back. And sometimes it takes
days.
But if we could have a system that allows employers to make
a conditional offer of employment, that is, to tell the
applicant you have the job subject to passing what we have, a
criminal background check or background reference check, and
then also your work status.
If we can have it as a conditional offer, allow us to get
moving on that, so that we don't have delays of days and days,
that would certainly help the system become much more
efficient, rather than having or requiring employers to wait
until after somebody physically starts working in order to
gather that information. It would also be efficient if we could
do away with any paper type requirements. Requiring employers
to have a paper I-9 form, and then also requiring them to have
an electronic verification system, becomes very burdensome on
employers. It is very difficult to do both on the recordkeeping
side.
Right now, we have to basically fill out the I-9 forms, and
in order to have a process, in order to get those forms back
because we are a large employer, we scan those in, image each
one of those in, so that we can retrieve those quickly, so that
we can conduct an audit. Because every year we conduct an
audit, and so it makes it much easier and faster for us.
If we went through an electronic system, that would be even
faster but it would not require the need for us to keep paper
documents. And also looking at making sure it is accurate. Both
sides have their versions of which system would be better as
far as when it comes to verification. We have got to have a
system that is accurate.
The error rates under the basic pilot program are very
high, regardless of who you talk to, percentage-wise, they are
very high, and so I would ask the committee to ensure that we
have got a system that is accurate and if fast.
And finally, there is verification requirement under both
bills. We ask the committee to seriously consider not going too
far back and making it large employers or any employer go back
and have to reverify the workforce when they have already been
complying with the laws.
Just to wrap it up, I would like to thank you for your
time, and I appreciate you giving me the opportunity to be here
on behalf of H-E-B and EWIC, the Essential Workers Immigration
Coalition, and I again thank you for your time.
[The prepared statement of Mr. Martinez follows:]
Prepared Statement of Abel Martinez, Vice-President, H-E-B
Mr. Chairman and Members of the Committee: On behalf of H-E-B, I
would like to take this opportunity to thank you for your service to
our country and for your efforts in developing a reasonable and
comprehensive immigration reform initiative that will benefit our great
country and the great State of Texas.
From our beginning as a small grocery store in Kerrville, Texas, H-
E-B has grown to be the largest, privately held company in Texas. Since
1905, H-E-B has grown to include more than 300 stores in Texas and
Mexico. H-E-B is also one of the few companies in the nation that
donates over 5% of its pretax earnings to charitable and non-profit
organizations. We employ 60,000 people whom we call Partners. We
recently celebrated our 100th anniversary, and for over 75 years, we
have served the communities of South Texas.
I am very pleased that this Committee is addressing the critical
issue of security and guest worker programs and their impact on
immigration policy. My testimony, however, will focus on the employment
verification issues raised by the Committee.
Although H-E-B, like many other employers, takes great care to
ensure that its employees are authorized to work in the United States,
H-E-B supports a new EEVS, within the context of comprehensive
immigration reform. The prevalence of false documents makes it
difficult for an employer to know who is authorized to work and who is
not. Employers need an efficient, accurate, and reliable system to
ensure that the workers they hire are indeed authorized to work.
There are currently two differing versions of electronic employment
verification procedures in the House and Senate bills, one found in
Title VII of the House-passed Border Protection, Antiterrorism, and
Illegal Immigration Control Act of 2005 (H.R. 4437) and the other found
in Title III of the Senate-passed Comprehensive Immigration Reform Act
of 2006 (S. 2611). Both proposals seek to establish a new way of
verifying the employment eligibility of the American workforce. The
House version relies on the current I-9 system for identity
verification while modifying and expanding the current voluntary
``Basic Pilot Program'' and imposes it on all employers. The Senate
version modifies the current I-9 system and builds on the principles of
the Basic Pilot, but takes a much different approach overall.
The Basic Pilot Program is the only EEVS in use, and the strengths
and weaknesses of that program can be used to guide decision-making
concerning the development of any new mandatory system when expanded to
over seven million employers and over 140 million employees. It is also
worth noting that although the program is commonly referred to as
``electronic'' in nature, both the House and Senate EEVS versions will
retain paperwork requirements designed to verify the identity of
workers at least until such time as a system imposes biometric
identifiers on all workers. This is an issue which has not received a
great deal of attention, and is beyond the scope of this testimony, but
is clearly a major issue that will have to be dealt with in the future.
Accuracy of the Underlying Databases for the Basic Pilot Program
The accuracy of the underlying databases, maintained by DHS and
SSA, continues to be an issue for the Basic Pilot Program. These
databases struggle to keep pace with status or name changes among our
fast growing population.\1\ Historically, the error rates of government
agency databases tend to be extremely high.\2\ For example, error rates
for Internal Revenue Service data and programs are typically in the
range of 10-20%.\3\ A Government Accounting Office (``GAO'') study on
databases used for alien employment verification, pre-Basic Pilot,
found that 20% of a sample of Immigration and Naturalization Services
(``INS'') data on aliens was incomplete and 11% of the files contained
information that was erroneous.\4\ The National Law Journal reported
approximately ten years ago that files on 50,000 Guatemalan and
Salvadoran aliens regularly contained the first, middle, and surnames
in the wrong field.\5\ This is still a common occurrence today because
Hispanics tend to have compound names and the first part of the last
name is routinely written as the middle name.
The National Law Journal also discovered that proper name searches
came out blank because other data was also routinely entered into the
wrong data field; there were rampant misspellings, and numbers were
often entered where letters should have been.\6\ Even Social Security
files have been found to contain error rates in 5-20% of cases.\7\ In
fact, INS itself estimated that it would be unable to electronically
verify employment eligibility in some 35% of all cases due to delays in
updating computer records, name-matching problems, and errors in the
database.\8\
Error Rates
The law that created the Basic Pilot Program required the INS to
have an independent evaluation of the program before it would be
extended.\9\ The INS chose two research firms, the Institute for Survey
Research at Temple University (``ISR'') and Westat, to do the
independent evaluation.\10\ In January 2002, the Basic Pilot Evaluation
Summary Report was published and in June 2002, the ``more in-depth
empirical evaluation,'' Findings of the Basic Pilot Program Evaluation,
was published.\11\ The latter, as the U.S. Citizenship and Immigration
Services (CIS) readily admits, is an excellent, comprehensive, and
well-researched report that continues to serve as the basis for the
debate, in part because the subsequent DHS publications and responses
have not been as thorough or as well documented.\12\
As these reports found, there are deficiencies with the Basic Pilot
Program. For example, while the final outcome for 87% of the
verification submissions was employment authorization confirmation at
one of the four stages, less than 0.1% (159 persons) were found between
1999 and 2002 to be unauthorized to work in the United States.\13\ The
remaining 13% never reached a final determination.\14\ In other words,
approximately one in eight verification submissions was never resolved,
which leads to the conclusion that the Basic Pilot Program does not
have the appropriate consistency checks, and that the information
caught by the submission database is not sufficient for evaluation
purposes and quality control.\15\ There are many reasons for these and
other inconsistencies.\16\
The most compelling error-rate is the false-negatives. The
generally published statistic is that the rate of false-negatives is
20%. This data is found on page 88 of the June 2002 ISR and Westat
report. It shows that out of 364,987 transactions, only about 69.9%
came out authorized on the first attempt, while about 17.1% came
authorized only after two or more attempts or stages, the latter
percentage (17.1%) comprises all the verified false-negatives. As
mentioned, 13% of the total never reached a final determination and
through statistical modeling, the study team estimated that up to 10%
of total submissions were probably unauthorized workers, which means
that at least the other 3% that never reached a final determination
were also false-negatives.\17\ And, of course, 17.1% plus 3% gives the
20% false-negatives estimate that most experts have been using.
The 20% is a conservative estimate and other groups and individuals
sometimes use higher rates. For example, the rate of false-negatives
for foreign-born workers-even naturalized U.S. citizens-is estimated to
be anywhere between 35% and 50%. In addition, the numbers above are
based on 364,987 ``transactions.'' \18\ During the period tested there
actually were 491,640 ``queries.'' \19\ A query occurs every time an
employer enters a submission in the SSA or DHS database.\20\ An
employer may have multiple queries for one employee.\21\ There are a
number of reasons for these multiple queries, which include entering
new information for the same employee after a tentative non-
confirmation is issued-done instead of a worker initiating an
appeal.\22\ The independent evaluation uses transactions as the unit
for analysis, which combines, and counts as just one, multiple queries
for a specific Social Security Number by the same employer.\23\ Thus,
using transactions as the unit of analysis, instead of queries, and
considering multiple entries with corrected information due to a
tentative non-confirmation as just one submission, leads to a lower
rate of false-negatives.
Translating Error Rates into Basic Terms
The basic translation of error rates is that 20% of properly work
authorized individuals are told initially that they are not authorized
to work. The independent evaluation stated that ``[a]pproximately one-
third of employers using the pilot system reported that it is easy to
make errors when entering information.'' \24\ In fact, relying on
informal INS surveys, the independent study indicated that
``approximately 20 percent of employees who faxed or visited an INS
status verification office did so because of employer input errors.''
\25\ Last name changes due to marriage and compound last names are two
of the explanations for this error. The independent study stated that
``a specific employer data entry problem noted by some Federal
respondents is the difficulty of entering compound surnames. * * * The
problem is especially likely to arise with certain foreign-born
employees and could contribute to the much higher error rate observed
among these employees.'' \26\ The result is often an incorrect
tentative non-confirmation (false-negative).\27\
When an employer does not catch an error, it results in ``more
significant burden on employees, employers, and the Federal
Government.'' \28\ The independent study went on to say, back in 2002,
that DHS could probably solve part of the problem by modifying ``the
software * * * to check Federal records to determine whether the
entered Social Security number or Alien Number has been issued to
someone with a compound name containing the name in question * * *
improv[ing] the user friendliness of the Basic Pilot system and
mak[ing] it less error prone.'' The in-depth ISR and Westat independent
evaluation and independent analysis is approximately 400 pages long.
Before expanding the Basic Pilot to all 50 states, Congress mandated
DHS to submit a report to Congress by June 1, 2004.\29\ DHS
acknowledged that the most serious deficiency, noted by the evaluation,
was that the Basic Pilot Program frequently resulted in work-authorized
employees receiving tentative non-confirmations (false-negatives).\30\
It stated further that employers and employees incur costs in the
process of resolving these erroneous findings.\31\ DHS also
acknowledged that since foreign-born employees were more likely to
receive erroneous tentative non-confirmations than were U.S.-born
employees, these accuracy problems were also a source of
``unintentional discrimination against foreign-born employees,''
including many that are U.S. citizens.\32\ As DHS stated before
Congress, the vast majority of employers wish to comply with the law,
but the government also needs to provide them with the tools needed to
properly and easily screen for undocumented workers.\33\
Current Proposals
The possible harm to employers, United States citizens, and legal
immigrants, due to a flawed EEVS should not be taken lightly or
understated. The high consequences of government errors should be
paired with real safeguards for those most affected by such errors.
Obviously, delays in the hiring of workers while verification problems
are sorted out will have an adverse impact on the ability of
businesses, especially smaller businesses, which inherently have less
flexibility, to operate.
Under both the House and Senate versions, employees will be
responsible for appealing wrongful determinations and dealing with the
federal bureaucracy to fix errors. The ISR and Westat evaluation found
that when employers contacted the INS and SSA in an attempt to clarify
data, these agencies were often not very responsive or accessible with
39% of employers reporting that SSA never or only sometimes returned
their calls promptly and 43% reporting a similar treatment by the
INS.\34\
Hence, Congress needs to ensure that any new EEVS minimizes errors
to de minimis levels, is prompt under real-life working conditions, and
contains a mechanism in which errors can be quickly rectified. Even an
extremely low error rate of 1% would still translate into about 1.4
million false-negatives, and, thus, the improper disqualification of
millions of potential workers, including U.S. citizens.
Both employers and employees should receive a fast, accurate, and
reliable response within a reasonable amount of time. Keeping employees
in a ``tentative non-confirmation'' limbo is unfair to everyone.
Forbidding employers from firing tentatively non-confirmed employees,
but then using this data to investigate employers is unfair and
impractical. Employers must be able to receive a final, accurate,
answer upon which they can rely, within a reasonable period of time.
One measure voiced by employers to accelerate the verification process
is to allow employers the opportunity to make conditional offers of
employment to applicants, which would allow the employer to obtain
employment verification prior to the actual start or hire date of the
applicant. This would also allow the applicant/employee the opportunity
to correct their information, if needed, prior to his/her start date
and reduce the likelihood of any interruption in their work.
Further, the Senate version creates a final default confirmation/
non-confirmation when DHS cannot issue a final notice of employment
eligibility within two months of the hiring date. While two months for
a final default notice is too long, this provision is still incredibly
important in cases where the government is unable to reach a final
decision within a reasonable timeframe. It works as a default
confirmation until the accuracy rates reach acceptable levels. Without
this provision, millions of authorized workers could potentially be
denied employment because of a government error. Once the GAO can
certify that the EEVS is able to issue a correct final notice 99% of
the time, then, instead of default confirmations, the system will issue
default non-confirmations and the employer will be legally required to
fire the worker.
There are ways to reduce the lag time from two months to a more
reasonable time frame: reducing the time allowed for the reply from DHS
when the initial electronic request is submitted (e.g., from 10 days to
3 days), reducing the time period for the default notice after the
contest has been submitted (e.g., from 30 days to 10 days), and
allowing employers to submit the initial inquiry about two weeks before
the first day of employment so the clock starts running earlier. To
prevent the latter provision from being used as a pretext for pre-
screening, there would have to be a set start date in place and the
date could not be changed based on an initial tentative non-
confirmation. These three changes would allow the new employer to have
a final determination within two weeks of an employee's first day at
work, instead of about 60 days as currently envisioned in S. 2611. Of
course, an employer should continue to have the option of submitting
its initial inquiry shortly after the new employee shows up for his or
her first day at work or, in the case of staffing agencies, when the
original contract with the agency is signed.
Cost Concerns for Employers of a Nationwide Mandated Program
H.R. 4437 has targeted the Basic Pilot Program for conversion into
a mandate on employers-rather than a mostly voluntary program-and seeks
its expansion to all 140 million U.S. workers. Currently, only about 4%
of employers use the system.\35\ The Senate version will also rely on
the same databases used by the Basic Pilot Program and, thus, will have
similar challenges.
In addition to the government cost of hiring more verifiers,
modernizing the system, and purchasing and monitoring additional
equipment, the GAO, in its most recent report, relying in part on the
ISR and Westat independent evaluation, estimated ``that a mandatory
dial-up version of the pilot program for all employers would cost the
federal government, employers, and employees about $11.7 billion total
per year, with employers bearing most of the costs.''\36\ (Emphasis
added.) This would be the cost of mandating the other 96% of employers
to be linked into the database.
Employers would also need to train employees to comply with the new
law's requirements and devote a great deal of human resources staff
time to verifying and re-verifying work eligibility, resolving data
errors, and dealing with wrongful denials of eligibility.\37\ In
particular, data errors and technological problems would lead many
employees to start work as ``would-be employees.'' \38\ This could lead
to a substantial decrease in productivity, especially when the work to
be done is seasonal or time-sensitive.\39\ Employers would also have to
deal with the possibility of another level of government bureaucracy
with random ``on-site auditing'' powers.\40\ Finally, employers who
already will incur many internal costs of meeting the requirements of a
new EEVS, should not be subject to a fee to pay for the cost of
building the system itself-this should be and is a government function.
Implementation Timetable
GAO continues to call attention to the weaknesses in the Basic
Pilot Program that have been reported, including delays in updating
immigration records, false-negatives, and program software that is not
user friendly.\41\ Specifically, GAO has reported on additional
problems and emphasizes ``the capacity constraints of the system [and]
its inability to detect identity fraud.'' \42\ Also, in fiscal year
2004, 15% of all queries handled by the Basic Pilot Program required
manual verification because of data problems.\43\ Recently, GAO
reiterated its conclusion that as of now the Basic Pilot Program is not
prepared to handle the abrupt increase in participation, particularly
at the degree mandated by H.R. 4437.\44\
Given these concerns, the EEVS should be phased in and tested at
each stage, and expanded to the next phase only when identified
problems, the ``kinks'' in the system, have been resolved. The best
approach would be for the program to move from one phase to the next
only when the system has been improved to take care of inaccuracies and
other inefficiencies ascertained through the earlier phase. This would
also allow DHS to properly prepare for the new influx of participants.
In addition, employers should only be required to verify their new
employee, as existing employees have already been verified under the
applicable legal procedures in place when they were hired. Re-verifying
an entire workforce is an unduly burdensome and costly proposition-and
unnecessary given how often workers change jobs in the United States.
Conclusion
H-E-B urges you to work with the business community to create a
workable EEVS within the context of comprehensive immigration reform.
This includes:
An overall system that is fast, accurate and reliable
under practical real world working conditions;
A default confirmation/non-confirmation procedure when a
final determination is not readily available;
A phase-in to guarantee proper implementation at every
level;
A reasonable approach to the contractor/subcontractor
relationship;
An investigative system without artificially created
incentives in favor of automatic fines and frivolous litigation;
Accountability structures for all involved-including our
government;
Provisions to protect first-time good faith violations
caused by the ever-changing federal regulations;
Congressional oversight authority with independent
studies.
Employers will be at the forefront of all compliance issues. Thus,
employers should be consulted from the start in the shaping of a new
EEVS-to ensure it is workable, reliable, and easy to use.
Finally, H-E-B would like to reiterate that the new EEVS needs to
be done within the framework of comprehensive immigration reform.
I wish to thank you again for this opportunity to share our views,
and I look forward to your questions.
endnotes
\1\ NILC, Basic Information Brief: Employment Verification
Programs, at 4.
\2\ John J. Miller and Stephen Moore, A National ID System: Big
Brother's Solution to Illegal Immigration, Policy Analysis no. 237,
September 7, 1995.
\3\ Daniel J. Pilla, How to Fire the IRS, at 68-69, 1994.
\4\ General Accounting Office, Immigration Reform: Alien
Verification System Data Base Problems and Corrective Actions, June
1989.
\5\ Anne Davis, Digital IDs for Workers in the Cards, National Law
Journal at 1-21, April 10, 1995.
\6\ Anne Davis, Digital IDs for Workers in the Cards, National Law
Journal at 21.
\7\ Consumers Union, What Are They Saying about Me?, April 29,
1991.
\8\ National Immigration Law Center, Basic Information Brief:
Employment Verification Programs at 4.
\9\ Tyler Moran, National Immigration Law Center, Written Statement
to the U.S. Senate Committee on the Judiciary on Employment
Verification Systems in Comprehensive Immigration Reform, at 2, October
18, 2005.
\10\ F. James Sensenbrenner, Committee on the Judiciary, Report
Together With Dissenting Views to Accompany H.R. 2359, 108th Congress
Rept. 108-304, at 4, October 7, 2003.
\11\ U.S. Citizen and Immigration Services, Employment Verification
Pilot Evaluations, found at http://uscis.gov/graphics/aboutus/
repsstudies/piloteval/PilotEval.htm on February 15, 2006.
\12\ Id.
\13\ Institute for Survey Research at Temple University (ISR) and
Westat, Findings of the Basic Pilot Program Evaluation, at 81-82, June
2002.
\14\ ISR and Westat, Findings of the Basic Pilot Program
Evaluation, at 84.
\15\ ISR and Westat, Findings of the Basic Pilot Program
Evaluation, at 87.
\16\ Id.
\17\ ISR and Westat, Basic Pilot Evaluation Summary Report, at vi,
January 2002.
\18\ ISR and Westat, Findings of the Basic Pilot Program
Evaluation, at 81, footnote 63.
\19\ Id.
\20\ ISR and Westat, Findings of the Basic Pilot Program
Evaluation, at 81, footnote 63.
\21\ Id.
\22\ Id.
\23\ Id.
\24\ ISR and Westat, Findings of the Basic Pilot Program
Evaluation, at 122-123.
\25\ Id.
\26\ Id.
\27\ Id.
\28\ Id.
\29\ NILC, ``Basic Pilot'' Employment Eligibility Verification
Program Expanded Nationwide, Immigrants' Rights Update, Vol. 18, No. 8,
December 22, 2004.
\30\ NILC, ``Basic Pilot'' Employment Eligibility Verification
Program Expanded Nationwide.
\31\ Id.
\32\ Id.
\33\ Stewart A. Baker, Assistant Secretary for Policy at DHS,
Testimony Before the Subcommittee on Oversight of the House Committee
on Ways and Means, February 16, 2006.
\34\ ISR and Westat, Basic Pilot Evaluation Summary Report, at 18,
January 2002.
\35\ Government Accountability Office, Immigration Enforcement:
Weaknesses Hinder Employer Verification and Worksite Enforcement
Efforts, at 20-21 and Appendix IV, August 2005.
\36\ GAO, Immigration Enforcement: Weaknesses Hinder Employment
Verification and Worksite Enforcement Efforts, at 29.
\37\ Sparapani, Memorandum on Problems with Employment Eligibility.
\38\ Id.
\39\ Id.
\40\ DHS, Report to Congress on the Basic Pilot Program, at 8.
\41\ Barbara D. Bovbjerg, Director, Education, Workforce, and
Income Security Issues at GAO, Testimony Before the Subcommittee on
Oversight of the House Committee on Ways and Means, February 16, 2006.
\42\ Id.
\43\ GAO, Immigration Enforcement: Weaknesses Hinder Employment
Verification and Worksite Enforcement Efforts, GAO-05-813, at 23,
August 2005.
\44\ Barbara D. Bovbjerg, Testimony Before the Subcommittee on
Oversight, during Questions and Answers period. Failure to Comply with
the Regulatory Flexibility Act: IRS Endangering Small Businesses Yet
Again.
______
Chairman Johnson. Thank you. I appreciate your testimony.
You know, we were discussing it here, a moment ago, it should
be instant, and when I asked Social Security Administration if
it was, they said it was. I didn't realize you had to have a
paper trail. I don't understand that, but as a matter of fact,
being on the Social Security subcommittee, I remember, well, in
1995, that is what? 10 years ago, we gave them 5 million bucks
to get their computer system up to speed so it would be
instantaneous.
And they have yet to do it. What you guys don't realize out
there, sometimes you tell these Government agencies to do
something, and they actually don't do it.
And it isn't always the Senate's fault either.
Ms. Simmons, go ahead with your testimony, please.
STATEMENT OF GERI SIMMONS, HUMAN RESOURCES MANAGER, SOCIETY FOR
HUMAN RESOURCE MANAGEMENT
Ms. Simmons. Thank you, Chairman Johnson.
Chairman Johnson, members of the Subcommittee on Employer-
Employee Relations, I am Geri Simmons.
Chairman Johnson. Get into your microphone, please.
Ms. Simmons. I am Geri Simmons, H.R. manager for a large
food processing corporation here in Texas. I appear today on
behalf of the Society of Human Resources and am grateful for
this opportunity to provide testimony.
SHRM, which is the Society for Human Resources, is well-
positioned to provide insight on the current and proposed
employment verification system as we H.R. professionals are on
the front line with organizations and administer the current
verification requirements.
We agree that the current employment verification system is
in need of reform. The details of a new employment verification
and worksite enforcement system do matter. We caution Congress
to carefully consider the implications of any new employment
system, as it will touch all our lives, both employer and
employee.
As you know, we, as employers, are required to review
documents presented by employees, and after review, employers
are required to attest on a I-9 that they have reviewed the
documents, and that they appear genuine and authentic.
Even in the best circumstances, H.R. professionals
encounter a number of challenges complying with the current
employment verification requirements.
According to a survey conducted by SHRM in 2006, 60 percent
of H.R. professionals indicate that they continue to experience
problems with the current verification requirements.
This, unfortunately, has been my experience as well. In my
H.R. role, I have seen documents presented for employment
verification purposes that are clearly fraudulent, while the
validity of others are uncertain.
Another challenge is the reverification of workers
authorized documents that expire. Approximately 30 percent of
the employees that come to our organization use documents that
have an expiration date. When an individual work authorization
document nears an expiration date, my office must contact the
employee and require him or her to update and reverify the work
authorization form or the I-9 form.
In addition to the electronic verification, as employers,
we are also required to do the I-9 verification. So there is
that double documentation that we do.
The Basic Pilot Program is required to respond to employers
within 3 days with either a confirmation or a tentative non-
confirmation. And those requiring that tentative non-
confirmation, they have 10 days to provide those documents.
My organization has participated in Basic Pilot for about 5
years or more. In about 95 percent of the cases, the employees
are confirmed in the initial verification process in just a few
minutes. You know, I do get a lot of confirmation within just a
few seconds or up to 5 minutes.
There have been a few cases that have taken up to 10 days,
and then a secondary confirmation does take those 10 days. One
of my challenges in the H.R. field is my colleagues in the
fast-food industry didn't participate in the Basic Pilot
Program. We had a few people that did participate and were
administered through the system, and they came back and were
timed out at the secondary verification and they were not
confirmed to work here.
But then, after the 10 day verification program, they were
eligible to work here. They were documented. They were able to
work here in the United States.
SHRM supports an electronic verification system that is
easy to use, expedites the employment verification process, and
does not expose employers to new liabilities. 92 percent of the
H.R. professionals surveyed stated that they would support an
electronic employment verification system if it meets these
standards.
However, we continue to have practical concerns about the
feasibility and workability of employment verification
proposals currently before Congress. Both the House and Senate
bills implement the electronic verification system at specific
points in time. However, as we have reported, and we had
reported by the GAO in June of 2005, with the relatively small
amount of employers, that is a percentage, we have 5.6 million
employers in the United States, a small percentage of us, 2300,
use the Basic Pilot Program.
We found that 15 percent of all inquiries required
additional verification. SHRM recommends that the current Basic
Pilot Program should be required to meet a high level of
accuracy with regard to the confirmation status of U.S.
citizens and work-authorized employees, before it is
implemented, or phased into operation. SHRM has several
concerns with the lengthy verification process proposed by the
Senate bill, which would allow an employee to be on the payroll
up to 43 days before the final verification.
At the same time, employers seeking to comply with the law
would risk losing a substantial investment in training and
compensation costs for employees if they are eventually deemed
ineligible to work.
In addition, many employers offer health coverage within
that 30 day period, and then they would be obligated to go into
the COBRA and obtain health coverage for that employee.
It is a strong recommendation to allow employers the option
of using the electronic verification system after an offer of
employment is accepted but before the employee commences.
Employers that hire employees on the spot, of course, will
have to allow the employee to begin work immediately and
confirm eligibility after commencement. Many employers
currently conduct post-acceptance, pre-employment background
checks on employees under the requirements of Fair Credit
Reporting, and of course follow the ADA guidelines.
Both the House and Senate bill promotes an electronic
verification system but require employers to attest, complete
paperwork, which means completing paperwork similar to I-9 or
an I-9 document.
SHRM supports moving to a truly electronic verification
process by allowing entire verification efforts to be conducted
electronically as opposed to requiring employers to check work
authorization electronically and verify identify manually.
Both the House and Senate bill would increase civil and
criminal penalties for recruiting, hiring and referral
violations. Our members do not dispute that there should be
appropriate punishment for hiring unauthorized workers.
However, employers are often penalized, especially for
paperwork or technical violations.
I would like to thank the committee for the opportunity to
appear here, and if you have any questions, please forward them
to me. Thank you.
[The prepared statement of Ms. Simmons follows:]
Prepared Statement of Geri Simmons, Human Resources Manager, on Behalf
of the Society for Human Resource Management
Chairman Johnson, Ranking Member Andrews, and members of the
Subcommittee on Employer-Employee Relations, my name is Geri Simmons
and I am the Manager of Human Resources for a large food-processing
corporation located in Lufkin, Texas. I have over 15 years of
experience in Human Resources, 7 years as an adjunct professor teaching
in an MBA program and several years of experience in profit and non-
profit business. I appear today on behalf of the Society for Human
Resource Management (SHRM) and I am grateful for the opportunity to
provide commentary to the Subcommittee on this important issue.
SHRM is the world's largest association devoted to human resource
management. Representing more than 210,000 individual members, the
Society's mission is to serve the needs of HR professionals by
providing the most essential and comprehensive resources available. As
an influential voice, the Society's mission is also to advance the
human resource profession to ensure that HR is recognized as an
essential partner in developing and executing organizational strategy.
Founded in 1948, SHRM currently has more than 550 affiliated chapters
within the United States and members in more than 100 countries.
SHRM is well positioned to provide insight on the current and
proposed employment verification system as the discussion of
immigration reform and how to maintain a safe and secure border is at
the forefront of the national conversation on immigration reform,
currently taking place among the general public as well as federal and
state governments. It is in the interests of our economy and national
security to establish a reliable, efficient, and predictable employment
verification system.
Human resource (HR) professionals are on the front line when
organizations administer the current verification requirements. HR
professionals are committed to the proper application of the
Immigration Reform and Control Act (IRCA) of 1986 in the workplace and
the hiring of only work-authorized individuals. While we agree that the
current employment verification system is in need of reform, the
details of a new employment verification and worksite enforcement
system do matter. We caution Congress to carefully consider the
implications of any new employment system as it will touch all of our
lives--employees and employers alike.
My remarks today will focus on the current employment verification
process, including my experience working with the Basic Pilot Program
that was created in The Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996, as well as on legislation passed
by the House, the Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005 (H.R. 4437); and the Senate, the
Comprehensive Immigration Reform Act 2006 (S.2611), to reform the
immigration system.
Current Law
Mr. Chairman, as you know, under IRCA employers are required to
review documents presented by employees within three business days of
hire demonstrating identity and work authorization in the United
States. After reviewing these documents, employers are required to
attest on Form I-9 that they have reviewed the documents and that they
appear genuine and authentic. In the current employment verification
process, (27) documents are available to employees to demonstrate work
eligibility, with (12) different documents authorized under law to
prove identity.
As noted above, IIRIRA of 1996 created the Basic Pilot program for
employers to voluntarily confirm an employee's eligibility to work
using an electronic verification system. Under the Basic Pilot program,
employers are required to review an employee's identity and work
authorization documents consistent with IRCA requirements, including
completing all Form I-9 paperwork. Employers are then required to check
each new employee's work eligibility using the electronic verification
system. The Basic Pilot system is required to respond to the employer
within three days with either a confirmation or a tentative non-
confirmation of the employee's work eligibility. In the cases of a
tentative non-confirmation, a secondary verification process lasting
ten days is initiated to confirm the validity of the information
provided and to provide the employer with a confirmation or non-
verification of work eligibility. Employers are not permitted to
terminate individuals that they have received a tentative non-
confirmation on until the employer has received a final non-
verification or the ten-day period has elapsed.
Mr. Chairman, even under the best of circumstances, HR
professionals encounter a number of challenges complying with the
employment verification requirements under IRCA. These challenges
include: maintaining the I-9 records when an employee presents a
document that has an expiration date; the authenticity, quality, and
quantity of documents presented by an employee for work authorization
and identification purposes; and the time that an employer spends
administering the current I-9 process. According to SHRM's 2006 Access
to Human Capital and Employment Verification survey, 60 percent of
responding HR professionals indicated they continue to experience
problems with the current verification requirements of IRCA 20 years
after its enactment. The most common challenges cited in the survey are
maintaining records when presented with a document that has an
expiration date (31 percent); authenticity of documents presented for
employment (28 percent); and the quality of documents presented by
employees (22 percent).
This has unfortunately been my experience as well. In my HR role, I
have seen documents presented for employment verification purposes that
are clearly fraudulent while the validity of others is uncertain. To
try and ensure compliance within the employment verification
requirements, employers spend a great deal of time and financial
resources training their staff on Form I-9. For example, one
organization wanted to train their HR staff on document fraud
detection, contacted the then Immigration and Naturalization Service
(INS) and asked the Service to give training classes on the
identification issue. The INS officer stated that if our company
participated in classes and made a mistake in our review of the
documents, we would increase our liability. I verified this with our
corporate attorney and then made the decision not to take classes for
identifying false documents.
Another challenge is the re-verification of work authorization
documents that expire. For example, our company tracks the expiration
date of all of the work authorization documents that are used by
employees in the verification process. Approximately 30 percent of our
employees use work authorization documents that contain an expiration
date. When an individual's work authorization document nears its
expiration date, my office must contact the employee and require him or
her to update and re-verify their work authorization documents on the
Form I-9.
While I was working in another business, the company was trying to
take the extra step to ensure compliance with IRCA. It was the job of
one of our HR generalists at the company to call the Social Security
Office for verification of the Social Security number of a new
employee. The Social Security office would only allow us to submit five
numbers and names at a time to be checked; the generalist would have to
call back to verify the next group of five new employees.
My organization has been a participant in the Basic Pilot program
for approximately five years and generally has had a positive
experience with the program. Our company typically hires 15 to 20 new
employees each month. Each new employee is subject to the employment
verification process through the Basic Pilot program. In about 95
percent of the cases, the employees are confirmed in the initial
verification process in just a few minutes. The individuals unable to
be confirmed in the initial process are then subject to the secondary
verification process which on average has taken five to six days to get
a final confirmation but we have had several cases of the system taking
up to ten days for the employee to receive a final confirmation from
the system.
I have encountered a few challenges of my own in the process. For
example, I have an employee who works for me who is from El Salvador.
He is a United States citizen and has worked legally in the U.S. for
over 20 years. His initial verification screening came back as a non-
confirmation indicating that he needed to report to the Social Security
office. This employee's information was correct and up-to-date but the
verification system was unable to confirm his work authorization. As a
result, he had to take the time off work, go to the Social Security
office, and clarify his work status even though he was eligible to work
in the United States. While my colleague was eventually able to get
confirmed by the secondary verification process, it's clear that the
system has some challenges.
One of my HR colleagues working in the fast food industry and
participating in the Basic Pilot program has had a few employees
administered through the system who actually have ``timed'' out of the
secondary verification process with the system unable to confirm the
employee's eligibility within the ten day period. The employer,
believing the employees were work authorized based on the documents and
information presented, as well as the previous work history of the
individuals in question, continued to employ them hoping the system
would eventually be able to confirm the eligibility of the employees.
Eventually, within another few days, the system was able to confirm the
work eligibility of these employees. However, if the employer would
have made his decision to terminate the employees in these examples at
the end of the ten day period, he would have been firing individuals
that were legally eligible to work in the United States.
Another challenge that occurs with the Basic Pilot is that
individuals may not pass the initial verification because their last
name submitted for verification purposes is different then the records
maintained by the Social Security system or the Department of Homeland
Security. For example, work authorized male employees from Latin
American countries typically have two last names; with the first last
name from their mother's side of the family and the second last name
from that of their father. If the name is not entered into the system
exactly as it appears on the work authorization documents, the
individual will receive a non-confirmation for employment. A similar
situation arises with a female U.S. citizen who may have married and
not yet had the opportunity to apply for a new Social Security card
reflecting her new name.
Areas of Concern to SHRM with the House-Senate passed Immigration Bills
SHRM supports an electronic verification system that is easy to
use, expedites the employment verification process, and does not expose
employers to new liabilities in using the system and, most importantly,
restores integrity to our immigration system. In SHRM's 2006 Access to
Human Capital and Employment Verification survey, 92 percent of HR
professionals surveyed stated that they would support an electronic
employment verification system if it meets these standards. However, we
continue to have practical concerns about the feasibility and
workability of the employment verification proposals currently before
Congress. These concerns include the accuracy, certainty,
responsibility and enforcement of the employment verification and
worksite enforcement proposals.
Accuracy of the Electronic Employment Verification System
Both the House and Senate bills implement the electronic employment
verification system at a specific point in time. H.R. 4437 would
require all employers to begin to verify a new hire's eligibility for
employment within two years of the bill becoming law; S. 2611 would
require all employers to use the electronic verification system within
18 months after funding for the system has been authorized by Congress.
The proposed legislation is based on the current Basic Pilot system and
is designed to verify employment electronically. However, as reported
by the Government Accountability Office (GAO) in June of 2005, only
2,300 out of 5.6 million current U.S. employers actively participated
in the Basic Pilot in 2004, and even with the relatively low
participation rate, the GAO found that about 15% of all queries require
additional verification because the automated system is unable to
provide confirmation responses on the initial attempt. The total number
of participating employers has risen to about 10,000, according to the
government's latest figures, still a small fraction of the total number
of employers who would be using the system once the legislative
proposals become effective. Expanding this system to cover all
employers within such limited time frames as proposed in the
legislation absent federal certification that the system is adequately
staffed and prepared to handle the increased workload is likely to
cause confusion, denied employment opportunities and significant
employer penalties.
U.S. employers and employees want an accurate and fair electronic
employment verification system, but should not have to participate in
such a system program until the federal government provides assurances
that the system works. SHRM recommends that Congress provide sufficient
financial resources and planning to reduce the possibility of
administrative delays for employers as well as inaccurate and unfair
work authorization determinations.
In addition, the current Basic Pilot system should be required to
meet a high level of accuracy with regard to the confirmation status of
U.S. citizens and work authorized employees before it is implemented or
phased into operation.
Certainty of the Employment Verification System
As noted previously, employers choosing to participate in the Basic
Pilot system are provided an initial response to an inquiry to the
system within three days, and, if necessary in the case of a tentative
non-confirmation, in another ten days for the secondary verification.
H.R. 4437 is identical to the current Basic Pilot in terms of the time
frames of the verification system. The Senate bill, S. 2611 however,
would extend the initial time that the system has to respond with
either a confirmation or a tentative non-confirmation of work
eligibility to ten days, and provide for a secondary verification
response to last as long as 30 days.
SHRM has several concerns with the lengthy verification process
proposed in S.2611. First, it creates a giant loophole to circumvent
the verification system for unscrupulous employers and a prolonged
period of uncertainty for law-abiding employers. Creating a lengthy
waiting period for a response allows bad-actor employers to
intentionally employ an unauthorized temporary worker for a substantial
period of time without penalty. At the same time, employers seeking to
comply with the law would risk losing substantial investments in
training and compensation costs for employees if they are eventually
deemed ineligible to work. Second, most employers that offer health
care and benefits coverage to employees begin coverage for these
employees and their dependents within 30 days of the employee starting
work. Mandating such an extensive verification time period after an
employee begins work would trigger continuing health care coverage
under COBRA if the worker is later deemed ineligible at the end of the
30-day verification process. Third, such an extended verification phase
would present companies with the dilemma of not knowing whether to
start the employee on a long-term assignment, and consequently, could
cause the loss of valuable opportunities for business development
during this period of uncertainty.
Employers and employees want an electronic verification system that
provides a reliable and efficient confirmation of a new employee's
eligibility to work in the United States. An effective system must
address concerns of hardship to the legitimate employers and at the
same time not discriminate against workers. A verification system that
is timely, reliable, and conclusive should minimize verification-
related discrimination and streamline the employment verification
system by allowing employers the option of using the electronic
verification system screening after an offer of employment is accepted,
but before the employee commences work. The employer may begin the
process of verification immediately upon acceptance of the offer of
work by the employee. Employers that hire employees on the spot, of
course, will have to allow the employee to begin work immediately and
confirm eligibility after commencement. As long as the employer
uniformly follows either of the procedures above, discrimination
concerns should not be present. The post-acceptance, pre-employment
approach would not be unique to this particular employment law. Many
employers currently conduct post-acceptance, pre-employment background
checks on employees under the requirements of the Fair Credit Reporting
Act (FCRA). Also, some jobs--municipal police officers, for example--
are required to pass certain physical or job-related tests governed by
protections of the Americans with Disabilities Act and the Civil Rights
Act in a post-acceptance, pre-employment approach.
Finally, in order to assist in the accuracy and streamlining of the
verification process, SHRM believes that individuals themselves should
be permitted to check on their own employment authorization status and
correct any errors prior to the employment process. Similar to
individuals checking their credit, and with measures to ensure the
privacy and security of personal information, potential employees
should be provided access to the data bases populating the employment
verification system to correct any discrepancies in their respective
work authorization areas.
Paper-Based System
Both House and Senate bills promote an electronic employment
verification system, but still require employers to attest to the new
hire's employment and identification documents to ensure authenticity;
record the Social Security number of each new hire; and record the
verification code received through the electronic verification process
on a paper-based Form I-9 or similar documents as part of that process.
This will significantly increase, not decrease, the amount of staff
time and resources that an employer must spend in the verification
process. As reported in the Access to Human Capital and Employment
Verification survey, 21 percent of responding HR professionals
indicated that they continue to experience administrative challenges in
the current employment verification process, even without adding the
additional administrative burden of the untested electronic employment
verification system to the process. SHRM supports moving to a truly
electronic verification process by allowing the entire verification
effort to be conducted electronically as opposed to requiring employers
to check work authorization electronically and verify identity
manually.
Documents Establishing Work Authorization and Identity
As under current law, both the House and Senate bills base the
worksite enforcement procedure of the legislation on an employer
examining documents presented by the employee to establish work
authorization and identity. Unfortunately, neither H.R. 4437 nor S.
2611 effectively addresses the challenges presented to employers
regarding the authenticity or proliferation of documents presented in
the verification process. H.R. 4437 makes no changes to the number or
standards of the documents establishing employment eligibility or
identity. S. 2611 does curtail the number of documents for establishing
identity to a U.S. passport or documents that satisfy the REAL ID
requirements for U.S. citizens; for permanent residents, a permanent
resident card; for other aliens, an employment authorization card; or
for those that are unable to obtain above documents, a document
designated by the Secretary of the Department of Homeland Security with
various identifying information and security features. While the Senate
bill is a step in the right direction, SHRM believes any government
documents that are required should be secure and have biometric
features to curtail the use of fraudulent documents for employment
purposes.
Responsibility for Hiring Decisions
Both the House and Senate bills would place new requirements on
employers for their subcontractors' hiring practices if a subcontractor
hires an illegal worker. Employers should be liable for their own
hiring decisions, not the hiring decisions that are made outside of
their control. However, SHRM recognizes there have been instances where
an unscrupulous employer has used a subcontractor to hire unauthorized
aliens to avoid IRCA requirements. H.R. 4437 seeks to address this
issue by requiring that an employer have actual knowledge that a
subcontractor is using unauthorized workers before imposing fines or
sanctions on the contracting employer. SHRM supports the House
provision. S. 2611, however, places a new, untested, standard on
employers by requiring employers to attest in a contract with a
subcontractor that the employer is not using the subcontractor to
``knowingly or in reckless disregard'' hire labor irrespective of the
individual's work status. In addition to the new undefined standard,
the Senate bill will place additional data collection and reporting
requirements on employers to collect information from each of their
subcontractors. SHRM believes these requirements are burdensome,
unnecessary and exposes the employer to unwarranted penalties and fines
for the actions of another employer. In addition, making employers
liable for the actions for subcontractors blurs the line in the legal
relationship between employers and subcontractors. SHRM believe this
requirement should be eliminated.
Enforcement
Both the House and Senate bills would increase civil and criminal
penalties for recruiting, hiring, and referral violations. Our members
do not dispute that there should be appropriate punishment for hiring
unauthorized workers. However, employers are often penalized strictly
for paperwork or technical violations. For example, employers have been
fined for transposing the document number and issuing authority on
consecutive lines, even though it was clear that the employer had
examined a valid document. With a new electronic employment
verification system, it is likely that paperwork errors will increase,
at least initially, as employers implement new systems for retaining
information and subsequently enter confirmation or non-confirmation
codes in the system. This will not be a small task for firms that hire
thousands of individuals annually.
SHRM believes that enforcement of the employer sanction program
needs to be vigorous and fair for employers and employees. In addition,
civil fines and criminal sanctions should be appropriate to the
seriousness of the violation. This is particularly true with the
increased administrative load of the new system proposed in both the
House and Senate bills, particularly in the early years of
implementation. A strong enforcement effort should allow employers to
receive a warning and a fair time to correct any typographical or other
administrative errors without suffering the consequences of having
violated worksite laws. Employers that fail to correct errors within an
appropriate timeframe following a warning should face penalties.
Conclusion
I would like to thank the committee again for the opportunity to
appear before you today and again emphasize that SHRM supports the
concept of a reliable employment verification system. However, we are
extremely concerned with the practicality and feasibility of the
employment verification system currently proposed. We look forward to
working with Congress to create an approach that improves and
strengthens the employment verification process.
I will be pleased to respond to any of your questions regarding
both my written and oral statements.
______
Chairman Johnson. Thank you, ma'am. Appreciate your
testimony. Professor, you are welcome to begin your testimony.
STATEMENT OF BILL BEARDALL, CLINICAL PROFESSOR OF LAW,
EXECUTIVE DIRECTOR, EQUAL JUSTICE CENTER, UNIVERSITY OF TEXAS
SCHOOL OF LAW
Mr. Beardall. Thank you. Chairman Johnson, Representatives
Tierney and Wilson, I appreciate the opportunity to be here
today to offer some comments. My name is Bill Beardall. I have
practiced as an employment lawyer for low-income working people
for 28 years now, as well as directing the Transnational Worker
Rights Clinic at the University of Texas Law School. I am
testifying today on behalf of the Equal Justice Center and the
National Immigration Law Center, which are both nonpartisan,
nonprofit organizations that protect the rights of low-income
working people and immigrant families.
In my remarks today, I'd like to highlight five key points
that are laid out in more detail in the written testimony I
have submitted.
The central, and most important point, I hope to emphasis
today, is that in your current consideration of immigration
reforms, the most effective thing you can do to support and
protect U.S. workers is to fully enforce employment protections
for undocumented immigrant workers as well as U.S. citizens and
documented immigrants.
Continuing to allow the widespread employment exploitation
of undocumented workers, not only subjects the undocumented
worker to unfair and inhumane treatment, it hurts U.S. workers
by creating an incentive for unscrupulous employers to prefer
hiring vulnerable, undocumented workers and thus reducing good
job opportunities and wages and working conditions that are
available to all workers, including U.S. workers.
The only effective way, really, to prevent the reduction in
good jobs and decent wages is to ensure that all workers,
documented and undocumented, enjoy full and equal employment
rights, and fully effective means to protect their rights
without regard to their immigration status.
Chairman Johnson. Hold it. Hold it. We can't have that.
Please continue.
Mr. Beardall. And, unfortunately, enforcement of employment
rights for U.S. workers and all other workers has plummeted in
recent years.
The second point I would like to make is that it is a
mistake to try to rely mainly on the approach of cracking down
on employment verification and tightening employer sanctions to
address the problems associated with unauthorized employment.
Our 20 year history of utilizing that approach shows that
it is not only ineffective but counterproductive, doing more
harm than good.
Now why do I say it is ineffective and counterproductive?
Because placing employment eligibility requirements and
penalties on employers has already created an incentive that
has pushed a huge number of employers into now hiring workers
off the books, paying them in cash, under the table.
Intensifying employment verification requirements on employers
will elicit compliance from some, like the legitimate employers
that are here, but it will likely push even more employers into
this unrecorded off-the-books employment labor market.
In addition, the exclusive use of employment verification
requirements has already encouraged a vast number of employers
to evade those requirements by misclassifying their employees
as independent contractors. More rigorous employment sanctions
will now encourage more of these independent contractor
schemes, and fostering these illegal employment schemes, that
is, off-the-books employment and independent contractor scams,
has a terribly counterproductive effective on everyone in our
society, especially U.S. workers.
These practices reduce the payment and collection of pay
roll and income taxes. They reduce participation in the
unemployment insurance, workers compensation and Social
Security safety net programs.
They reduce the ability of Government regulators and
workers to monitor and enforce basic wage, workplace safety,
and other labor protections, and they foster increased
disrespect for the law among previously law-abiding citizens.
There is another very ironic way in which the overreliance
on employment eligibility restrictions is counterproductive.
Unscrupulous and opportunistic employers have adroitly used
workers unauthorized status as a threat to hold over their
heads of their undocumented workers, to keep them in line and
get rid of any worker who might complain about illegal
treatment, or ask for a raise, or get injured on the job.
This very vulnerability on the part of undocumented workers
gives many employers a positive incentive to hire and exploit
the undocumented workers, which, in turn, lowers job
opportunities, wages, and working conditions for all workers,
including U.S. workers.
The third observation I want to offer is that no
verification system, including the employee eligibility
verification system, the electronic system that's being
discussed here, no system can successfully address the problems
associated with undocumented immigration unless it is
accompanied by a realistic path to earn legal status for
currently undocumented workers and their families, and
accompanied by----
Chairman Johnson. Let's maintain the decorum, and would you
try to tighten it, sir. You are over 5 minutes. Thank you.
Mr. Beardall. And that it should provide an orderly
mechanism for legally accommodating the inevitable future flow
of immigrant workers, ensuring that they have full and equal
employment rights that they can effectively enforce.
My fourth comment, related to specifically the proposed
employment eligibility verification system, is similar to those
that have been reflected by the other witnesses here, and that
is that these systems should not be implemented unless critical
problems that have been identified with the basic pilot program
that has been used so far are corrected.
That includes the inaccuracy of databases because they are
notoriously inaccurate. There need to be protections that
prevent employers from misusing their access to this computer
data on all workers, not just immigrant workers. Every U.S.
worker is subject to these employment verification
requirements, and there need to be provisions to ensure that
that data is not misused by employers, or used selectively, or
used to discriminate against people who look or sound or seem
foreign and yet may be United States citizens and legal
immigrants.
The final concern I would like to mention, briefly, is that
the recent rules, proposed by the Department of Homeland
Security, to begin using Social Security no-match letters as an
enforcement tool are unwise and will be counterproductive.
It is an effort to inappropriately turn employees, all
employees' Social Security numbers and accounts into a law
enforcement tool, an immigration enforcement tool, and that's
not the purpose of the Social Security system that we rely on
as one of our basis social benefit programs. I am grateful for
this opportunity to testify before the committee. I would be
happy to answer any questions that you may have later in the
hearing.
[The prepared statement of Mr. Beardall follows:]
Prepared Statement of Bill Beardall on Behalf of the Equal Justice
Center and the National Immigration Law Center
Members of the Committee, thank you for the opportunity to address
the critical issue of employment verification laws and the pending
proposals to create a new Employment Eligibility Verification System
(EEVS). I am testifying today on behalf of the Equal Justice Center and
the National Immigration Law Center. The Equal Justice Center (EJC) is
a non-profit employment justice and civil rights organization based in
Texas which empowers low-income working families, individuals and
communities to achieve systemic reforms that improve their lives. EJC
provides the critical support, legal rights advocacy, and
infrastructure that enables low-income working people to achieve fair
treatment in the workplace, in the justice system, and in the larger
civil society. The National Immigration Law Center (NILC) is a
nonpartisan national legal advocacy organization that works to protect
and promote the rights and opportunities of low-income immigrants and
their family members. Since 1979, NILC has established a national
reputation for its expertise on immigration law and the public benefit
and employment rights of low-income immigrants. NILC is also a convener
of the Low Wage Immigrant Worker Coalition, a nationwide coalition of
labor unions, civil rights organizations, immigrant rights
organizations, and others concerned with the rights of low wage
immigrant workers in the U.S.
A Punitive Enforcement-Only Approach will not Reduce Undocumented
Migration but Will Exacerbate the Harms Associated with
Undocumented Migration
Contrary to popular opinion, our current immigration woes are not
merely the result of a failure of will. Rather, increased migration is
a worldwide phenomenon resulting from the powerful economic,
demographic, technological and political forces that have made our
world smaller and have given birth to a truly global labor market.
These include explosive increases in global trade and the resulting
political and social upheavals, the telecommunications revolution that
has brought peoples into unprecedented proximity, and the reduced cost
of travel. The United States has played a historical role in adapting
and integrating large numbers of newcomers into our political, social
and economic lives. Given our history as an immigrant receiving nation
and our economic and political position in the world, there is little
to suggest that we could significantly reduce the current levels of
migration--setting aside whether this is a good or a bad thing--without
taking a sledge hammer to our economy and our way of life.
We have tried. Congress has enacted almost one bill per year in the
last two decades intended to further strengthen immigration enforcement
as the resources devoted to immigration enforcement have grown
exponentially. This trend began in 1986 with the passage of the
Immigration Reform and Control Act (IRCA) of 1986, which for the first
time made it unlawful for employers to ``knowingly'' hire unauthorized
workers and created civil penalties (known as ``employer sanctions'')
for those who do so. The intent of this change was to stem the flow of
undocumented immigrants to the United States, by removing the job
magnet. Although employer sanctions have not been vigorously enforced
since then, it should be noted that neither have any other employment
laws such as wage and hour, employment discrimination, collective
bargaining, and health and safety protections for workers.
The enforcement-without-reform policy of the last 20 years,
including the initiation of employer sanctions, has been a resounding
and obvious failure. Although undocumented migration appears to have
plateaued, it has done so at an all time high, with 7.2 million
unauthorized workers now employed in the U.S., representing almost 5
percent of the civilian labor force.\1\ If we are going to be
realistic, we have to recognize that our economy is now highly
dependent upon low-wage, low-skill labor provided by undocumented
workers. The share of undocumented workers in agriculture, cleaning,
construction, food service, and other low-wage occupations is
approximately three times the share of native workers in these types of
jobs.\2\ In the aggregate, these hard-working, enterprising workers are
not going away, and neither are their spouses or the children who have
grown up in this country and integrated into our society. Like it or
not, they will play a role in our nation's future.
Given this fact, and the reality that high immigration levels are
likely to be a part of our future, the focus of our immigration policy
should be on maximizing the benefits and minimizing the harms of their
arrival and established presence, both for the immigrants themselves,
and even more importantly, for those of us who were lucky enough to be
born here.
We need to recognize that the impact of immigration is not merely a
matter of numbers. Like all complex social phenomenon, immigration is
neither all good nor all bad. There are winners and losers. And the
impact of immigration on all of us will be substantially different
depending on how we treat the immigrants. Do we punish them,
marginalize them, make it harder for them to rely on labor or law
enforcement protections, steer them into dangerous substandard jobs? Or
do we invest in them, provide them with equal rights, protection
against exploitation, the tools to learn English and to upgrade their
skills, and the ability to be productive, upwardly mobile participants
in the economy?
If immigrants enjoy the same workplace protections and economic
mobility as others, they will be less subject to exploitation at the
hands of employers whose practices will then undermine the wages and
working conditions of other workers. In addition, there is evidence
that raising the wages and working conditions of low-wage workers will
actually reduce immigration by making the existing workforce relatively
more attractive to employers.\3\ Therefore, it is imperative, for the
benefit of all workers, to eliminate the vulnerabilities and
marginalization inherent in the existence of a large, economically
vulnerable undocumented workforce. The only practical way to do this is
to legalize those who are already working and raising families here.
And it is equally important to ensure that all immigrants--current and
future, documented and undocumented--have full labor protections.
It is in this context that efforts to impose electronic
verification and increase workplace immigration enforcement should be
examined. Many Americans believe that such changes would be a magic
bullet, painlessly solving our immigration woes. The theory is that if
there were no employment market, unauthorized workers would not come,
and those who are here would leave. This might be true, but there is no
evidence the measures that have been proposed to date would dry up the
employment market. Rather, to the extent these measures are effective
in initially reducing employment opportunities, their main effect will
be to make America's 7.5 million undocumented workers even more
desperate for employment and willing to accept even more marginal jobs.
History teaches us that such a willing and desperate workforce will
find employers willing to take advantage of their availability and
reduced-cost. This is not theory. It is exactly what happened in the
late 1980's and 1990's in response to the impositions of employer
sanctions in the IRCA.\4\ Experience with the current employer
sanctions system gives us some indication of the increased us of
exploitative practices by unscrupulous employers and the increased
pressure that even legitimate employers feel to engage in similar
practices or risk going out of business. Under the current system, many
employers twist immigration law into a tool to punish workers seeking
to enforce their labor rights. Many of them knowingly violate IRCA's
employment verification provisions to hire undocumented workers whom
they know will then be reluctant to hold them accountable for labor law
violations. It is common practice for these same employers to use the
existence of the employer sanctions scheme to threaten undocumented
workers with deportation if they do indeed complain about their
deplorable working conditions. For example, an employer may not verify
a worker's employment authorization at the time of hire but will
conveniently remember the requirements under IRCA only after the worker
complains of some labor violation or attempts to organize a union to
improve their working conditions. Implementation of a system that only
enforces hiring sanctions without increased enforcement and improvement
of existing labor and employment protections will further exacerbate
these problems, and create additional incentives for unscrupulous
employers to recruit, hire and exploit unauthorized workers. This
exploitation of course not only harms the undocumented worker, it just
as surely harms U.S. born workers who find their job opportunities,
wages and working conditions undermined by the incentives thus created
for employers to hire and take advantage of vulnerable undocumented
workers.
In addition to increasing the opportunity for exploitation of
vulnerable workers, an exclusive reliance on employer sanctions will be
counter-productive for three other important reasons. First, it will
create an economic incentive for even more employers to hire workers
``off-the-books'' in unreported, cash- based employment relationships.
Second, it will encourage more employers to evade employer sanctions by
misclassifying their employees as ``independent contractors.'' Third it
will encourage companies to interpose substandard, middleman labor
contractors between themselves and their employees, pretending the
workers are employees of these sham contractors and exposing the
workers to marginal fly-by-night employment practices by the middlemen.
All of these practices in fact increased dramatically following the
imposition of employer sanctions in the 1986 IRCA. And all of these
practices have harmful economic and social impacts beyond the increased
exploitation of workers. For example, they increase our reliance on an
unregulated cash economy; reduce the collection of payroll and income
taxes; reduce participation in the unemployment insurance, workers
compensation and social security safety net programs; reduce the
ability of government regulators and workers to monitor and enforce
basic labor protections; and reduce employers' general respect for
operating legally and above-board. These substandard practices have an
adverse effect on everyone in our society, but they are especially--and
ironically--harmful for U.S. workers, whose employers will be forced to
compete with a growing sector of businesses that are unconstrained by
the regulatory apparatus that is supposed to protect us all and is
designed to underpin our basic standard of living.
As a practical matter, the only law enforcement approach that is
very likely to succeed in addressing the problem of unauthorized
employment in our economy is the comprehensive enforcement of labor and
employment protections for all working people without regard to their
immigration status. This would be by far the most effective way to
remove employers' incentive to hire and exploit unauthorized workers,
while also removing employers' incentive to adopt substandard
employment practices that evade our core tax, social benefit, and
regulatory systems. On the other hand, ramping up enforcement of
employer hiring sanctions alone will surely do more harm than good, at
least without vastly increased enforcement of employment protections
for both undocumented and documented workers.
As Congress considers creating a mandatory Employment Eligibility
Verification System (EEVS), this Committee must understand that an
approach that relies only on enforcement of hiring sanctions will not
solve the problems associated with unauthorized employment. In fact it
is doomed to fail--again, as it did after 1986. An employment
verification system has no real chance of succeeding unless it is also
accompanied by (1) a comprehensive opportunity for currently
undocumented immigrants to earn legal status; (2) a realistic
opportunity for the future flow of immigrant workers to work in our
economy with fully effective employment rights; (3) vigorous, status-
blind enforcement of our nation's labor and employment laws for U.S.
workers, documented immigrant workers and undocumented immigrant
workers alike.
Concerns about Expanding the Basic Pilot Program
The pending legislative proposals for a mandatory Employment
Eligibility Verification System (EEVS) will also do more harm than good
if the EEVS is not regulated by strict safeguards and cautious
implementation. These pending EEVS proposals are based on the existing
Basic Pilot Program. Unfortunately, the Basic Pilot program has been
plagued by problems since its inception in 1997. Most notably, the
program, which is so far used only by a relatively small number of
employers, has been hindered by inaccurate and outdated information in
the Department of Homeland Security (DHS) and Social Security
Administration (SSA) databases, lack of adequate privacy protections,
and misuse of the program by employers.
The Basic Pilot Program is an internet-based program that allows
employers to electronically verify workers' employment eligibility by
directly checking the records maintained by the DHS and the SSA.
The program is one of the three pilots created by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, and began
operating in six states in 1997. The other two pilot programs were
discontinued. However, in December 2004 Congress extended the Basic
Pilot to all 50 states, and it is now available to employers who
voluntarily choose to participate in the program, although certain
employers who have been found to unlawfully hire unauthorized workers
or who have discriminated against workers on the basis of national
origin or citizenship status may be required to participate. According
to the Government Accountability Office (GAO), as of June 2006,
approximately 8,600 employers were registered to use the Basic Pilot
program out of the approximate 5.6 million employer firms nationwide,
though only 4,300 employers are active users.\5\ A July 26, 2006 press
release from DHS states that 10,000 employers are registered to use the
program.
In creating the pilot programs in 1996, Congress required the
former Immigration and Naturalization Service (INS) to have an
independent evaluation conducted before the pilot programs could be
extended. The INS selected two firms--the Institute for Survey Research
at Temple University and Westat--to conduct the independent evaluation.
In January 2002, an evaluation of the Basic Pilot Program was issued.
The evaluation report identified several critical problems with the
pilot program and concluded that it ``is not ready for larger-scale
implementation at this time.'' Significant problems included:
Database inaccuracies
One of the most significant problems identified by the independent
evaluation was that the program was seriously hindered by inaccuracies
and outdated information in SSA and INS databases. For example, a
sizeable number of workers who were not identified as having work
authorization were in fact authorized, but for a variety of reasons the
databases did not have up-to-date information. While the database
accuracy has somewhat improved, a 2004 DHS report to Congress notes
that SSA's databases currently are able to automatically verify the
status of less than 50 percent of work-authorized non-citizens (versus
99.8 percent for native-born citizens).\6\ While most of these cases
eventually are favorably resolved, resolution often requires costly and
time-consuming manual reviews. Additionally, an unknown number of work-
authorized applicants abandon their employment plans rather than
pursuing the uncertainty of the appeals process, while another group of
work authorized individuals are wrongfully terminated before they even
have the opportunity to prove that they are indeed authorized to work
in the U.S.
Evaluators also found that when employers contacted the INS/DHS and
SSA in an attempt to clarify data, these agencies were often not
accessible; 39 percent of employers reported that SSA never or
sometimes returned their calls promptly and 43 percent reported a
similar experience with the INS.
Employer misuse of the program
The independent evaluators also discovered that employers engaged
in prohibited employment practices, including pre-employment screening,
which denies the worker not only a job but also the opportunity to
contest database inaccuracies; taking adverse employment action based
on tentative nonconfirmations, which penalizes workers while they and
the appropriate agency (DHS or SSA) work to resolve database errors;
and the failure to inform workers of their rights under the program.
Some employers also 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 for other personnel to potentially access the system and
employees' private information.
Although employers are prohibited from engaging in these practices
under a Memorandum of Understanding that they sign with DHS, U.S.
Citizenship and Immigration Service officials have told the GAO that
their efforts to review employers' use of the pilot program have been
limited by lack of staff available to oversee and examine employer use
of the program.\7\
The Basic Pilot Program Extension and Expansion Act, which
authorized expansion of the Basic Pilot Program to all 50 states, also
required DHS to submit a report to the Committees on the Judiciary of
the House of Representatives and the Senate. This report should have
evaluated whether the problems identified by the independent evaluation
of the Basic Pilot had been substantially resolved, and it should have
outlined what steps the DHS was taking to resolve any outstanding
problems before undertaking the expansion of the Basic Pilot program to
all 50 states.
While the DHS did submit a report to Congress in June 2004, it
failed to adequately address the concerns laid out in the independent
evaluation. Most importantly, it failed to address the explicit
recommendation by the independent evaluation against expanding the
Basic Pilot program into a large-scale national program until the DHS
and the SSA address the inaccuracies in their databases that prevent
those agencies from confirming the work authorization of many workers.
In August 2005, the GAO noted in its report, Immigration
Enforcement: Weaknesses Hinder Employment Verification and Worksite
Enforcement Efforts, that although DHS has taken some steps to improve
the timeliness and accuracy of information in its database, it cannot
effectively assess increased program usage without information on the
``costs and feasibility of ways to further reduce delays in the entry
of information into DHS databases.'' According to the GAO, DHS staff
stated that they may not be able to complete timely verifications if
the number of employers using the Basic Pilot Program were to
significantly increase.
Employment Eligibility Verification Systems in the Context of
Comprehensive Immigration Reform
The Border Protection, Antiterrorism, and Illegal Immigration
Control Act of 2005 (H.R. 4437) and the Comprehensive Immigration
Reform Act of 2006 (S. 2611) both include a mandatory EEVS but there
are significant differences between these two proposals. Most notably,
S. 2611 attempts to address some of the shortcomings of the Basic Pilot
program by including privacy, anti-discrimination, and due process
protections, while H.R. 4437 simply expands the Basic Pilot program
without addressing any of the concerns outlined above.
The Border Protection, Antiterrorism, and Illegal Immigration Control
Act of 2005 (H.R. 4437)
H.R. 4437 creates a mandatory EEVS that would make use of toll-free
telephone lines and other toll-free electronic media through which
workers' identities and employment authorization could be verified by
the DHS. Within six years of the bill's enactment, employers would be
required to verify the employment eligibility of all employees via the
EEVS. Use of the EEVS would be required three years from enactment for
all employees of federal, state, or local governments, including for
all workers at a federal, state, or local government buildings,
military bases, nuclear energy sites, weapons sites, airports, or other
critical infrastructures.
Use of the EEVS would apply not only to employers but also to those
who recruit or refer individuals for employment, including labor
service agencies and nonprofit groups. This means that temporary worker
agencies, worker centers, and other similar job placement or referral
programs (including job fairs and websites such as monster.com) would
have to comply with a process similar to the current I-9 process before
referring workers to a job. This represents a radical expansion of the
current I-9 system beyond the overly regulated employment relationship,
and mandates an unworkable system whereby service providers and for-
profit employment services would be deputized as immigration officials
as well. This will likely result in vastly limited employment
opportunities for minorities who often use these services and job fairs
to meet employers who may be seeking to diversify their workforce.
While the bill requires that the government correct and update
inaccurate records that would make the EEVS unworkable, it includes no
procedures, funds, or safeguards for ensuring that this requirement is
carried out. If workers are unjustly fired due to errors in the EEVS, a
provision of the bill would prevent them from filing class action
lawsuits against the government or the employer to redress this
injustice. Instead, they would be allowed only to file a claim against
the government under the Federal Tort Claims Act, which is not equipped
to handle large numbers of claims or lawsuits of this nature.
Additionally, the Federal Tort Claims Act process is cumbersome,
expensive, and time-consuming, making it an unrealistic form of relief
from government database errors.
The Comprehensive Immigration Reform Act of 2006 (S. 2611)
S. 2611 also creates a mandatory EEVS where employers would
electronically transmit information to SSA and DHS for purposes of
verifying workers' employment authorization. S. 2611 requires the new
EEVS to be implemented with respect to new hires 18 months after the
date that at least $400 million have been appropriated and made
available to DHS; however, DHS has the authority to require
``critical'' employers (based on an assessment of homeland security or
national security needs) and employers that DHS has reasonable cause to
believe have engaged in material violations related to unlawful
employment of immigrants to use the EEVS to verify the work
authorization status of all employees before the 18-month period.
S. 2611 does include important worker protections that seek to
address the shortcomings of the Basic Pilot program. Specifically, the
bill includes the following:
Anti-discrimination protections. S. 2611 amends the
section of the Immigration and Nationality Act (INA) relating to unfair
immigration-related employment practices to explicitly apply to
employment decisions related to the new EEVS. Additionally, it
increases fines for violations of the INA's anti-discrimination
provisions and provides funding to educate employers and employees
about anti-discrimination policies.
Due process protections. S. 2611 includes important due
process protections intended to ensure that workers can challenge
erroneous findings and fix inaccurate information in the DHS and SSA
databases. Specifically, it requires employers to provide employees
with information in writing (in a language other than English if
necessary) about their rights to contest a response from the EEVS, and
the procedures for doing so, and allows individuals to view their own
records and contact the appropriate agency to correct any errors
through an expedited process. It also creates an administrative and
judicial review process where individuals can contest findings by DHS,
and seek compensation for the wages lost where there is an agency
error.
Privacy protections. S. 2611 includes important privacy
protections intended to protect against misuse of information and
identity theft. Specifically, it requires minimization of the data to
be both collected and stored, and creates penalties for collecting or
maintaining data not authorized in the statute. It also places limits
on the use of data, and makes it a felony to use the EEVS data to
commit identity fraud, unlawfully obtain employment, or any other
purpose not authorized in the statute. Lastly, it requires the GAO to
assess the privacy and security of the EEVS, and its effects on
identity fraud or the misuse of personal data.
Provisions That Must Accompany Any Nationwide, Mandatory Employment
Eligibility Verification System
After nearly a decade of experience with the Basic Pilot Program
and two decades with the employer sanctions scheme, it is clear that
the existing programs have significant flaws that must be addressed if
Congress is to pursue the creation of a new EEVS. The creation of such
a system without addressing the fundamental flaws in the current
program is unadvisable and will result in severe negative consequences
for immigrant and U.S. workers on a much larger scale than they
currently experience. Provisions of S. 2611 take a step in the right
direction by including important worker protections, and we have
additional suggestions below, but these provisions are meaningless
without addressing the need to legalize the undocumented population in
this country, and punish employers who flout labor laws.
The following components are essential to any mandatory EEVS--
The EEVS must have measurable and enforceable standards.
The best way to ensure implementation of an EEVS that is accurate and
implemented in a non-discriminatory manner is to set standards and
expectations for system performance upfront and to hold DHS accountable
for meeting those standards (e.g. the databases must have a specific
level of accuracy). Experience confirms that federal agencies do not
meet expectations if the standards they are given are vague and
optional. The EEVS program is particularly vulnerable to poor planning
because of its unprecedented scope, and the disconnect between the
agency mandate to get something up and running quickly and the
requirements that would ultimately determine whether it is successful,
such as the need for speed, efficiency, reliability, and information
security. It is much easier to make design changes in a system before
it goes fully online than afterwards. That is why software
manufacturers produce ``beta'' versions of their programs to be tested
in the real world before mass public marketing distribution. Once a
system is designed and put in place for all employers and workers in
our economy it will be costly and difficult to implement needed
changes.
The EEVS should be phased-in with a realistic timeline.
Any mandatory universal verification system must be implemented
incrementally, with vigorous performance evaluations taking place prior
to any expansion. Moving forward rapidly without addressing ongoing
problems within the system will not help to achieve stated goals and
will result in harm to U.S. workers. Additionally, an unrealistic
timeframe would likely delay implementation of the new system. It is
easy for Congress to pass a law requiring that something be done by
some arbitrary date, but that doesn't necessarily make it happen. If
the deadline is unrealistic, it will not be met no matter how many laws
Congress passes. For example, in 1996 Congress mandated implementation
of an electronic entry-exit system within 2 years. Yet after repeated
extensions the system still is not online. Setting an unrealistic
timeframe is more than just an exercise in futility. It actually delays
implementation because it leads to inadequate and unrealistic planning
and misallocation of resources and taxpayer monies.
The EEVS must only apply to new hires. Requiring employers
to re-verify their existing workforce is adding more bureaucracy to the
process, will be extremely expensive and burdensome for human resource
departments, and will inevitably lead to many workers losing time from
work to correct the inaccuracies in the system. The current workforce
has already been authorized to work under the law using the current I-9
system. Moreover, the circularity in the workplace today, with a
turnover/separation rate of 40 percent a year (50-60 million employees
each year), means that eventually most people will be verified by the
new system in a relatively timely manner without forcing employers to
go through old records and re-verify all existing employees.
The EEVS must be designed to prevent misuse and abuse, and
must not lead to increased discrimination against workers who look or
sound foreign. Experience has taught us that unscrupulous employers
will use the system to unlawfully pre-screen potential employees, re-
verify work authorization, and engage in other unlawful activities when
an employee lodges a complaint or engages in organizing. It is
therefore essential that employers are explicitly prohibited from: 1)
using the system selectively or without authorization; 2) using the
system prior to an offer of employment; 3) using the system to exclude
certain individuals from consideration for employment as a result of a
perceived likelihood that additional verification will be required; 4)
using the System to deny certain employment benefits, otherwise
interfere with the labor rights of employees, or any other unlawful
employment practice; and 5) taking adverse action against any person,
including terminating or suspending an employee who has received a
tentative nonconfirmation.
The EEVS must protect the privacy of information in the
system. The employment verification system must protect information in
the database from unauthorized use or disclosure. It is critical that
privacy protections be included so that the information contained in
the databases is not used for non-employment verification purposes. The
2002 evaluation of the Basic Pilot program found several instances
where employers or other non-authorized individuals gained access to
the program for uses other than the designated purpose.
The EEVS must be independently assessed for program
performance. Any EEVS should be independently evaluated to ensure that
the program is meeting the needs of both employers and employees.
Reports should specifically evaluate the accuracy of DHS and SSA
databases, the privacy and confidentiality of information in the
databases, and if the program has been implemented in a
nondiscriminatory manner.
The DHS Proposal to Use SSA ``No-Match'' Letters as an Enforcement Tool
Should Be Withdrawn
In an attempt to address immigration enforcement at the worksite,
DHS issued proposed rules on June 14, 2006, regarding an employer's
legal obligations upon receiving a letter from the SSA stating that the
information submitted for an employee does not match SSA records
(otherwise known as an SSA ``no-match'' letter). Under the proposed
rule, ICE could use the receipt of a no-match letter as evidence that
the employer has ``constructive knowledge'' \8\ that an employee is
unauthorized to work. The proposed rule includes ``safe harbor''
procedures that such an employer should follow in order to avoid
liability under section 274A(a)(2) of the Immigration and Nationality
Act.
Although the rule will cause enormous upheavals in the workplace,
it will have no impact on undocumented immigration. Our past experience
with no-match firings and workplace audits is very clear: the fired
workers will not leave the country. They will simply find other more
marginal jobs, most likely in the unregulated underground cash economy.
Because of this, the proposed rule will result in growth of this
underground economy. It will also erode our privacy rights, and it
represents an end-run around the federal legislative process.
Proposals to use the SSA no-match letter as an enforcement tool,
such as the DHS proposed rule, should be rejected for the following
reasons:
The proposed rule will harm all workers regardless of
immigration status. The DHS rule will result in unnecessary, unjust,
and potentially discriminatory mass firings. Out of caution, panic, and
confusion employers will fire workers who receive an SSA no-match
letter before workers have a chance to correct their records with SSA.
The SSA database is notoriously inaccurate, and often times ``no-
matches'' occur because of name changes and clerical errors. Hundreds
of thousands of workers--including U.S. citizens and authorized
noncitizens--could lose their jobs. Such firings may run afoul of
federal and state anti-discrimination laws and other worker
protections, and lead to costly and protracted litigations against
employers for wrongful terminations. Unscrupulous employers already use
the SSA no-match letter to stymie labor organizing campaigns and to
retaliate against workers who have been injured on the job or complain
of unpaid wages or other labor violations. In documented cases
(including arbitration decisions) from across the country, employers
initially ignored SSA no-match letters, and then decided to use them as
a pretext to fire workers who participated in efforts to improve
working conditions and wages. The proposed rule would only exacerbate
this problem.
The proposed rule will expand the unregulated underground
cash economy. Although the proposed rule purports to provide employers
with general guidance on SSA no-match letters, DHS is in fact imposing
a new set of legal obligations on millions of employers. These new
legal obligations will increase pressure on businesses to employ
workers ``off the books,'' or to misclassify their employees as
independent contractors, thereby promoting the unregulated underground
cash economy which results in potentially billion-dollar losses in
federal, state, and local tax revenues, unfair competition, and further
exploitation and abuse of citizen as well as immigrant workers by
unscrupulous employers. The proposed rule also has the perverse effect
of punishing ``good'' employers who keep good records and want to stay
on the books. These ``good'' employers will be put at a disadvantage
compared with ``bad'' employers with whom they compete and who pay in
cash and do not keep records, or who misclassify employees as
independent contractors, and who consequently will not be reached by
the new rule.
The proposed rule is an end-run around the legislative
process. The proposed rule is badly timed. Any worksite immigration
enforcement proposal should happen in the context of comprehensive
immigration reform. The House and the Senate have both passed bills
that contain worksite enforcement mechanisms. Implementing the proposed
regulations at this time would be an end-run around that process.
Immigrant workers should not be subjected to unnecessary, unjust, and
potentially discriminatory mass firings while the current law is
clearly under debate and reformulation.
The SSA no-match letter program is ill-suited as a tool
for immigration enforcement. The proposed rule attempts to transform
the SSA no-match letter into an immigration enforcement tool when the
SSA database does not have the capacity to fulfill this objective. In
addition to being error prone, the database does not contain complete
information about a worker's immigration status or employment
authorization. Indeed, the database contains information about both
U.S. citizens and work-authorized noncitizens who employers will
presume to be undocumented simply because they appear on a no-match
list. The letter is not indicative of immigration status, and
explicitly states on its face that a worker's identification in the
letter does not make a statement about his or her immigration status.
Moreover, as an evidentiary matter, an employer's receipt of a SSA no-
match letter by itself does not constitute ``constructive knowledge''
of immigration status under current law. The proposed rule dramatically
alters the definition of ``constructive knowledge'' and makes a stark
departure from existing case law and long-standing federal guidance in
this area despite the fact that the SSA no-match letter provides no
evidence of immigration status.
The proposed rule is an erosion of our privacy rights. DHS
is currently barred from direct access to the SSA database by laws
protecting our privacy and tax confidentiality. These laws were put in
place to protect sensitive and personal information, and to ensure
compliance with tax laws. This proposed rule is an attempt by DHS to
end-run these privacy protections and commandeer personal information
in the SSA database for their own purposes.
The costs of implementing the proposed rule are
prohibitive. If the proposed rule is to be carried out as envisioned,
DHS and SSA will need to make a massive investment in employer and
worker education programs in order to combat the rampant panic and
confusion that is almost certain to follow. The proposed rule also
contains unrealistic timetables for compliance that will derail its
implementation. Further, although this rule purports to make changes to
how DHS interprets these letters, it has a significant impact on the
way in which SSA has to respond to the inevitable increase in employer
and worker inquiries about this confusing rule. The actual costs of
administrating the program will be astronomical for SSA, an agency
whose limited resources should go towards administering Social Security
benefits rather than enforcing immigration law. The proposed rule
should therefore be withdrawn.
Conclusion
An enforcement-only approach (as embodied by a mandatory EEVS, the
use of the SSA no-match letter as an enforcement tool, and misplaced
reliance on increased worksite enforcement) will never solve the
problem of unauthorized employment. If anything, the lessons of IRCA
have taught us that an enforcement-only approach actually creates
incentives for employers to hire unauthorized workers. If Congress is
serious about addressing this issue, it must muster up the political
will to address the root causes of migration in sending countries and
to address the need for improved working conditions for all workers in
the U.S. Congress can begin by 1) creating a legalization program for
workers who are filling the jobs in demand by employers, and 2)
enforcing existing labor and employment laws. If not, unscrupulous
employers will continue to have a financial incentive to hire and
exploit undocumented workers, legitimate employers will be placed at a
competitive disadvantage, and both documented and undocumented workers
will be increasingly subject to workplace abuses.
endnotes
\1\ Jeffrey S. Passel, Size and Characteristics of the Unauthorized
Migrant Population in the U.S. , Pew Hispanic Center (March 2006).
\2\ Jeffrey S. Passel, Unauthorized Migrants: Numbers and
Characteristics, Pew Hispanic Center (June 2005), pp. 26-28
\3\ ``How L.A. kept out a million migrants'' Ivan Light, Los
Angeles Times, April 16, 2006.
\4\ Donato, K. M., J. Durand and D. S. Massey. 1992. Stemming the
Tide? Assessing the Deterrent Effects of the Immigration Reform and
Control Act, Demography 29: 139-158.
\5\ Richard M. Stana, Testimony Before the Subcommittee on
Immigration, Border Security, and Citizenship, Committee on the
Judiciary, U.S. Senate, Immigration Enforcement: Weaknesses Hinder
Worksite Enforcement Efforts, U.S. Government Accountability Office
(June 2006)
\6\ See Report to Congress on the Basic Pilot Program, U.S.
Citizenship and Immigration Service, June 2004.
\7\ Richard M. Stana, Testimony Before the Subcommittee on
Immigration, Border Security, and Citizenship, Committee on the
Judiciary, U.S. Senate, Immigration Enforcement: Weaknesses Hinder
Worksite Enforcement Efforts, U.S. Government Accountability Office
(June 2006)
\8\ As defined in 8 CFR 274a.1(l)(1).
______
Chairman Johnson. Thank you. I think sometimes we forget
what the word illegal means.
Mr. Luther. Mr. Luther, you are welcome to testify.
STATEMENT OF JON LUTHER, CHAIRMAN AND CEO, DUNKIN' DONUTS,
BASKIN-ROBBINS, TOGO'S, DUNKIN' BRANDS, INC.
Mr. Luther. Thank you, Mr. Chairman and members of the
subcommittee. It is my great pleasure to be here today. I know
that applause wasn't for me, so I'll move right on.
My name is Jon Luther. I am the chairman and CEO of Dunkin'
Brands. Dunkin' Brands is one of the largest quick service
restaurant companies in this country, represented by nearly
8,000 Dunkin' Donuts, Baskin-Robbins and Togo's restaurants,
here, in the United States, and an additional 4,000 restaurants
abroad.
Our three brands are stalwarts of the franchise industry,
collectively representing over 143 years of experience.
And further, our system is totally franchised, meaning that
all of our U.S. restaurants are owned and operated by small
business owners who implement our standards while they totally
control the day to day operations, including deciding whom to
hire and setting the conditions of employment.
And we have approximately 2,600 franchisees and they, in
turn, employ well over one hundred thousand people.
As franchisors of Dunkin' Donuts, Baskin-Robbins and Togo's
systems, Dunkin' Brands has the responsibility to set the
standards that define our concepts--everything from what the
restaurant looks like to what products it sells. We are the
stewards of the brands, contractually committed to protecting
our trademarks, our systems, and the investment of our great
franchisees.
And each of those franchisees is the owner and operator of
his or her business, and each has total day-to-day control of
the operation, and promises to meet the standards that define
our brands to the consumer.
And one of those contractual promises that every franchisee
makes is to obey the laws, Federal, state and local, and
anything like that that pertains to the operation of our
restaurant. That includes the laws that pertain to the
entitlement to work. The knowing hiring or employment of an
undocumented worker is a violation of law, and Dunkin' Brands
has enforced that requirement for many years, long before the
topic became so controversial.
While we enforce that requirement, we also recognize the
necessity of giving our franchisees the best tools currently
available, so they can comply with the law.
A note, that many of our franchisees do not have the large,
centralized human resources apparatus available to them. They
are small business owners. Because of the prevalence of these
counterfeit documents, it is not always easy for our
franchisees to be confident that a new hire is lawfully
entitled to work, especially if they do not have the benefit of
this well-staffed, well-resourced, Human Resource Department
that is staffed by experienced hiring professionals. These are
small business owners.
We determined that our franchise community needed help to
comply with the law and in the hiring process. We began to
examine the Basic Pilot Program in the summer of 2005, and
while I understand that many businesses have had problems, many
other businesses have problems, I would like to say that the
personnel of the Department of Homeland Security were very
helpful to us, and went way out of their way to familiarize all
of us with the aspects of this program.
When we determined to implement the Basic Pilot Program as
a mandatory standard, so that our folks can obey the laws, the
Department of Homeland Security employees played an important
role in training our personnel and our franchisees, making
themselves available at our convention earlier this year and at
many of our regional meetings.
They have also done a great job with their telephone help
line, and the assistance of the Department of Homeland Security
contributed to the broad acceptance of the program by our
franchisees across our system. In fact, I can characterize the
response by our franchise community broadly as enthusiastic.
As of June 1, the use of the Basic Pilot Program has been
required by all of our franchisees and we have gotten broad-
based acceptance. We do not have a wealth of experience so far,
but based on the preliminary canvassing of our system, our
franchisees are finding the tool easy to learn and use.
They have not experienced any real difficulty with
resolving tentative non-confirmation, the mismatches. Usually
the issue is caused by an input error by the franchisee,
perhaps mixing up a first and middle name.
In those situations where there is a genuine mismatch, the
circumstances strongly suggest that the employee was not a
documented worker, meaning that they don't contest the results,
and guess what? They don't return for the job. It weeds them
out.
I would also add that if a mismatch is truly a record
error, and the employee is entitled to work, then resolving the
issue ensures that the employee gets proper credit for the
Social Security contributions, which is to his or her benefit.
So I cannot say that a data base error may not result in an
arduous, and even costly effort, by someone to establish his or
her rightful entitlement to work. This could happen. I can only
say that we have not seen it in situations as yet. The Basic
Pilot Program appears to be working well for our franchisees,
and their applicants.
Now while the Basic Pilot Program is working for Dunkin'
Brands, I want to emphasize that we and our industry need a
comprehensive solution to deal with the need for an adequate
employee base. The National Restaurant Association projects
that over the next decade, the number of jobs in the food
service business will grow one and a half times as fast as the
U.S. labor force. At the same time, the number of 16- to 24-
year-olds in the labor force, half of our industry's workforce,
will not grow at all.
Unfortunately, America's legal immigration system does not
easily satisfy our need for workers. Our economy provided 13.4
million jobs last year. And my testimony says 134 million. It
would be nice; but it was 13.4. I want to adjust that for the
record.
But the Federal Government only makes 10,000 green cards
available for service industry workers each year. There is a
huge disconnect. An enforcement-only solution could have severe
economic consequences for the restaurant industry.
According to some estimates, undocumented workers account
for approximately 5 percent of the workforce, and although
never documented for the restaurant industry, the same ration
holds true, which I believe is higher--but if that holds true,
then roughly 625,000 of the 12.5 million restaurant workers and
food service jobs are held by undocumented workers. Enforcement
only isn't going to work.
We need a comprehensive solution, one that will
realistically come to terms with the needs of our industry and
the presence of millions of undocumented workers already here
in the United States.
One last comment. Recently, President Bush visited one of
our restaurants in Alexandria, Virginia, to commend our system
for adopting the Basic Pilot Program. While there, he noted
that the owners of the franchise, and several of their
managers, were first generation Americans who were immigrants,
and the president noted that this was a healthy sign that the
pattern of immigration and assimilation, that has always been
the strength of our country, is well-represented at Dunkin'
Brands. And I am proud to say that our system was, in
substantial part, built by first generation Americans, and the
success of our system represents the achievement of the
American dream for thousands of families, and I hope that
working together, Government and industry can fashion and enact
a comprehensive solution that ensures the continued vibrancy of
our economy and the perpetuation of this country's unique role
as a safe harbor for those seeking a better life. Thank you
very much..
[The prepared statement of Mr. Luther follows:]
Prepared Statement of Jon L. Luther, Chairman and CEO, Dunkin' Brands,
Inc.
My name is Jon L. Luther, Chairman and CEO of Dunkin' Brands.
Dunkin' Brands is one of the largest quick service restaurant
companies, represented by nearly 8,000 Dunkin' Donuts, Baskin-Robbins
and Togo's restaurants in the United States and an additional 4,000
abroad. Our three brands are stalwarts of the franchise industry,
collectively representing over 143 of years of existence. Further, our
system is totally franchised, meaning that all of our U.S. restaurants
are owned and operated by small business owners, who implement our
standards while they totally control the day-to-day operations,
including deciding whom to hire and setting the conditions of
employment. We have approximately 2,600 franchisees, and they in turn
employ well over one hundred thousand people.
Dunkin' Brands and our Franchise System:
As franchisors of the Dunkin' Donuts, Baskin-Robbins and Togo's
systems, Dunkin' Brands has the responsibility to set the standards
that define our concepts--everything from what the restaurant looks
like to what products it sells. We are the stewards of the brand,
contractually committed to protecting our trademarks, our system, and
the investment of our great franchisees. Each of those franchisees is
the owner and operator of his or her business. Each has total day-to-
day control of the operation, and promises to meet the standards that
define our brands to the consumer.
One contractual promise every franchisee makes is to obey all the
laws, federal, state and local, that pertains to the operation of the
restaurant. That includes the laws pertaining to entitlement to work.
The knowing hiring or employment of an undocumented worker is a
violation of law, and Dunkin' Brands has enforced that requirement for
many years, long before the topic became so controversial. While we
enforce the requirement, we also recognize the necessity of giving our
franchisees the best tools currently available to comply with the law.
Dunkin' Brands' Decision to Embrace the Basic Pilot Program:
Many of our franchisees do not have large, centralized human
resources apparatus available to them. Because of the prevalence of
counterfeit documents, it is not always easy for our franchisees to be
confident that a new hire is lawfully entitled to work, especially if
they do not have the benefit of a well-resourced human resources
department staffed by experienced hiring professionals. We determined
that our franchisee community needed help to comply with the law in the
hiring process. We began to examine the Basic Pilot Program in the
summer of 2005. I would like to say that the personnel of the
Department of Homeland Security were very helpful to us, and went out
of their way to familiarize us with all aspects of the program. When we
determined to implement Basic Pilot as a mandatory standard, DHS
employees played an important role in training our personnel and our
franchisees, making themselves available at our convention earlier this
year and at many of our regional meetings. They have also done a great
job with their telephone help line. The assistance of DHS has
contributed to the broad acceptance of the program by franchisees
across our system. In fact, I can characterize the response broadly as
enthusiastic.
As of June 1, the use of the Basic Pilot Program has been required
of all of our franchisees and we have gotten broad-based acceptance. We
do not have a wealth of experience so far, but based on preliminary
canvassing of our system, the franchisees are finding the tool easy to
learn and use. They have not experienced any real difficulty with
resolving tentative non-confirmations (mismatches). Usually, the issue
is caused by an input error by the franchisee, perhaps mixing up a
first and middle name. In those situations in which there is a genuine
mismatch, the circumstances strongly suggest that the employee was not
a documented worker, meaning that they do not contest the results and
do not return to work. I would add that if the mismatch is truly a
record error, and the employee is entitled to work, then resolving the
issue ensures that the employee gets proper credit for social security
contributions, which is to his or her benefit.
I cannot say that a database error may not result in an arduous and
even costly effort by someone to establish his or her rightful
entitlement to work; this could happen. I can only say that we have not
seen those situations yet. The Basic Pilot Program appears to be
working well for our franchisees and their applicants.
Basic Pilot Program--Support and Evolution:
While the Basic Pilot Program is working for Dunkin' Brands, I want
to emphasize that we and our industry need a comprehensive solution to
deal with our need for an adequate employee base. The National
Restaurant Association projects that over the next decade, the number
of jobs in the foodservice business will grow one and a half times as
fast as the U.S. labor force. At the same time, the number of 16- to
24-year-olds in the labor force--half our industry's workforce--will
not grow at all. Unfortunately, America's legal immigration system does
not easily satisfy our need for workers. Our economy provided 134
million jobs last year, yet the federal government makes only 10,000
green cards available for service-industry workers each year.
An enforcement-only solution could have severe economic
consequences for the restaurant industry. According to some estimates,
undocumented workers account for approximately five percent of the U.S.
workforce. Although never documented for the restaurant industry, if
this same ratio holds true, then roughly 625,000 of the 12.5 million
restaurant and foodservice jobs are held by undocumented workers.
We need a comprehensive solution, one that will realistically come
to terms with the needs of our industry and the presence of millions of
undocumented workers already here in the United States.
Recently, President Bush visited one of our restaurants to commend
our system for adopting the Basic Pilot Program. While there he noted
that the owners of the franchise and several of their managers were
first-generation Americans, and the President noted that it was a
healthy sign that the pattern of immigration and assimilation that has
always been the strength of our country is well represented at Dunkin'
Brands. Indeed, I am very proud to say that our system was, in
substantial part, built by first-generation Americans, and the success
of our system represents the achievement of the American dream for
thousands of families.
I hope that, working together, government and industry can fashion
and enact a comprehensive solution that ensures the continued vibrancy
of our economy and the perpetuation of this country's unique role as a
safe harbor for those seeking a better life.
______
Chairman Johnson. Thank you, sir. I would like to ask how
you know all your owners are legal?
Mr. Luther. We use the Basic Pilot Program also to verify--
--
Chairman Johnson. When someone tries to buy into your
system, you check them out?
Mr. Luther. That is right. We have a very vigorous
selection process, and one of those selection processes for new
franchisees is to be run through the Basic Pilot Program to
ensure that they are legal.
Chairman Johnson. OK. You have the ability to do that at
your headquarters, I am sure, and how do you provide that
capabilities to the small business owner? I mean, do you
provide a computer system for them?
Mr. Luther. No. When a franchisee--we know who they are
because they have signed franchise agreements, so when they
sign these agreements, we then make sure that they are
validated and verified through the----
Chairman Johnson. Yes, but when they hire somebody, how do
they get into the system?
Mr. Luther. They have to go directly to the Basic Pilot
Program. Most, if not all, have computer systems, or because
they are located in geographies where they can go and use one,
they are able to use the Basic Pilot Program in that manner.
Chairman Johnson. And do they have delays, such as you
spoke of earlier?
Mr. Luther. Well, again, I said we started in June, we
mandated and made a requirement in June, for all franchisees to
subscribe to that, or they would be violating the laws, that we
made sure that they comply. But it is early. It is only since
June we put it in. But in our canvassing, we have not heard of
any incidences so far, and we continue to monitor.
Chairman Johnson. Let me ask about ICE. You have to work
with other Federal agencies and departments. Do you believe
cooperation is existing between those other Federal entities
and, you know, the no-match data--are we sure that we are
checking that information positively, and is Social Security
working with it?
Mr. Chakwin. Congressman, ICE is working very closely with
our state and local and Federal partners. Here, in Dallas, we
were one of the Document and Benefit Fraud Task Forces that
were stood up by DHS, and we have 22 individual participants,
Government agencies, from the Department of Labor, Social
Security Administration's OIG office, a cadre of state and
local agencies with us.
So cooperation is immense. There are 32 people that are
there, either full time or part time, working on Document and
Benefit Fraud Task Force. So the interagency cooperation is
great. Even the United States Attorney's Office sends over two
assistants to meet with us on a monthly basis for these
meetings. So cooperation is great in the Dallas area, and the
dialog between the agencies is great.
As far as the no-match data, we certainly need total access
to the no-match data. We have got to be able to drill down and
see what companies are the most egregious violators.
We spend a lot of time looking and researching what
companies we should be looking at, who are the most egregious
violators. People involved in smuggling, human smuggling,
trafficking, what have you, and if we had access to this data,
it would cutoff all that research time.
Chairman Johnson. Who is keeping you from getting it? Is it
the IRS? Social Security? Who?
Mr. Chakwin. Well, what we have to do is, in writing, we
can ask for it and we will get it, and we have forged a good
relationship. But it has to go to their headquarters in
Washington and all that data has to be run out of Washington.
We would like to have total access to it, without having to
go back and ask the Social Security Administration for
permission.
Chairman Johnson. I agree with you. But are you working
with IRS as well?
Mr. Chakwin. Yes, we are. They are one of the members of
the Document and Benefit Fraud Task Forces, a matter of fact.
Chairman Johnson. OK. Thank you.
You know, Mr. Martinez, you alluded to the difficulty an
employee faces in dealing with Federal bureaucracy, when he is
denied work authorization, but you refer earlier, that the
Social Security administration or CIS must resolve the
employee's situation within 10 working days. Is that turnaround
figure being met?
Mr. Martinez. From what I understand, Chairman, the
difficulty is in getting that information fast enough on a
plan. When you first make the request, a good number--I mean, I
think the Basic Pilot Program is making some good steps and
getting information quickly, but it is not always within those
first 10 days on the confirmation or non-conformation. So, I
mean, that is an issue.
What we would like to see is just ensure that the system is
faster and working toward a goal of turning those requests
within 24 hours. That would be extremely helpful.
Chairman Johnson. Are you getting it?
Mr. Martinez. In some cases, yes. We have just signed up,
again, for the Basic Pilot Program, so I don't have a wealth of
knowledge on how quickly.
Chairman Johnson. Well, is any one agency stiffing you more
than another one?
Mr. Martinez. No. No, not at all, and I will say that they
are all equal. No, I will say that they are much, much better
now. They are more responsive, and so I think there are some
substantial improvements to be made, but I still think we have
got to have goals in place and hold people accountable, for
making sure that they can create a system that is staffed
appropriately and the resources are used to make sure we have
got an accurate, fast, and efficient system.
Chairman Johnson. Thank you.
Mr. Tierney, you are recognized for questions.
Mr. Tierney. Thank you, Mr. Chairman.
Mr. Chakwin, I want to thank you for your service on that.
One of my other roles is on the Intelligence Committee, so I
know the great work that ICE is doing, and the stress that you
are under.
Mr. Chakwin. Thank you.
Mr. Tierney. And you heard me in my testimony talk about
our efforts to get you more border patrol agents, and 2700 more
immigration agents to hep you with that work.
I think once we enforce it, and have the people out there
doing it, then the laws are going to be somewhat meaningless on
that.
Are you aware that--this slide here just basically shows
that under the Bush administration, they have cut personnel for
worksite immigration forces by 63 percent.
Now I assume that you could use more agents to assist you
in your job. Am I right?
Mr. Chakwin. Well, under the administration's proposal, the
administration has proposed 171 additional agent positions and
35 auditor positions, which we could use. You know, we are
always willing to work with Congress and the administration to
get more, or whatever.
Mr. Tierney. So we are going to make an effort to increase
those numbers, and to increase the number of audits as well.
Mr. Chakwin. But I might say that that statistic is a
little misleading. We haven't gotten out of the worksite
enforcement arena at all. In fact, we have become more vigilant
in going after the most egregious violators. As a matter of
fact, last year, I believe it was 445 criminal arrests and
worksite enforcements. The year before, it was 176. You know,
we are targeting the most egregious violators and working well
with the United States Attorney's Office.
So I think we have made great strides. Now critical
infrastructure has always been a priority with us. National
security and public safety, of course, and along with that is
critical infrastructure, and we have not lost focus of that we
are still going after the most egregious violators in worksite
enforcement.
Mr. Tierney. And you are talking a bit of a change of
strategy, then, as to how you go about on that?
Mr. Chakwin. Well, before the merger, we went after, we had
fines, civil fines. We are getting away from civil fines. They
are a nuisance. Most employers think of them as a nuisance
fine. What we have done is have worked with the United States
Attorney to go after people criminally, and use the asset
forfeiture laws to take away their ill-gotten gains.
Mr. Tierney. Now with the expense of our friends here
getting a little out of control, but the number that we had had
with 1999 was 2849 arrests on that. It had fallen, in 2003, to
445. Is that going to be reversed?
Mr. Chakwin. Well, so far this year, administrative
arrests, we have made over 2100 administrative arrests.
Mr. Tierney. So you are moving back up to the numbers of
the last decade, then?
Mr. Chakwin. And plus, we have got to add in those criminal
arrests. We are going after criminal indictments and working
with the United States Attorneys. There is a lot of work
involved in, you know, working with the United States
Attorney's Office in prosecuting these corporations, and the
officers of the corporation.
Mr. Tierney. Mr. Beardall, under the Sensenbrenner bill,
the House bill, the employment verification system indicates
that every citizen, every citizen and lawful permanent resident
of the country will have to be, I think, forced to obtain the
Government's consent to work; is that right? Essentially, all
have to go through the system?
Mr. Beardall. Right. If the system is going to work, then
every single employee in the United States has to go through
this verification system. You can't just single out people you
think might be immigrants.
Mr. Tierney. OK. Now Mr. Chakwin, again, I think you would
be the one to answer this. What would the National Data base
contain? I assume it would have the personally identifiable
information regarding every citizen and every visa holder. So
it would have their name, their birth date, their Social
Security number, their address. What else would it have?
Mr. Chakwin. You are talking about what is on an I-9?
Mr. Tierney. Was it an I-9? And what would be needed for
the new system when we go through a pilot to a full-blown
system where everybody has to be checked?
Mr. Chakwin. That is really a CIS matter. Citizenship and
Immigration Services is developing that system and----
Mr. Tierney. Will it be more information than is on the
current pilot program, or the same?
Mr. Chakwin. You know, I am not really sure. I have been to
a meeting at headquarters recently in reference to that, and it
is a work in progress on what they are going to be needing on
that.
Mr. Tierney. Thank you.
Mr. Chakwin. But that should be directed, really, toward
CIS.
Mr. Tierney. Mr. Martinez, the Basic Pilot Program, we
understand, has about a 20 percent--I think you mentioned, that
is why I come to you, but it could be any one of the
witnesses--had about a 20 percent error rate.
Now the Chairman and I were talking about how we think this
ought to be instantaneous and so we ought to be able to check.
But it is, I think, a little bit unnerving, to think that if
everybody in the country has to go into this system, there is a
20 percent error rate, and that happens not just in the pilot
program but into the full-blown program, we have 150 million
working age U.S. citizens, that looks like about 30 million of
them are going to have trouble on their job, I mean, probably
most of them improperly so.
They are going to have to go through some sort of a
verification system and a corrections system, or whatever.
Mr. Martinez. That is correct, Congressman, and that is the
issue that concerns us most, is what we call these false
negatives. Those are people that are authorized to work in the
United States, whose family, whose livelihood is being impacted
because somebody typed in the wrong spelling of the name. They
had a situation where they reversed the middle name or the
first name. We have had a situation--I hope they don't mind me
using their name--but an individual at work called, the last
name is Van Brandt. We had to send them off to the Social
Security office to get their information checked on these
mismatch letters because there was no space in between Van
Brandt. And so that type of information comes up and is shown
as an error.
So that individual has to spend time, effort, to go down to
the Social Security office to get that information corrected,
and it probably would have been easier for them to change their
name than to go in and try to get it corrected.
Mr. Tierney. So if 5 percent of the workforce are
immigrants but 30 percent of the workforce could end up with
problems in this system, unless we correct that error rate.
Mr. Martinez. Correct. Right. And when it comes to those
that are foreign born, the percentages from the reports I have
read indicate that there is a 30 to 35 percent error rate among
foreign-born individuals.
Mr. Tierney. Tens of millions of people, and employers,
numerous employers going through this and having to spend all
this time correcting it.
Mr. Martinez. Absolutely. And that's why the reverification
system becomes extremely burdensome on everyone, if you have to
go back and reverify.
Chairman Johnson. The time of the gentleman has expired.
Mr. Tierney. Thank you.
Chairman Johnson. Mr. Wilson, you are recognized.
Mr. Wilson. Thank you, Mr. Chairman.
Mr. Chakwin, we appreciate very much your service and
professionalism. You have indicated that the Immigration and
Customs Enforcement agency provides training tools for
employers, to help avoid violating the law. Can you explain how
ICE is available to employers?
Mr. Chakwin. Well, recently, the assistant secretary rolled
out IMAGE, which stands for ICE Mutual Agreement Between
Government and Employers, and what it is is we will go out and
work with the employers to establish what we consider the ten
best hiring practices.
One of the cornerstones of the ten best hiring practice is
the use of the basic pilot verification program. And what we
will do is we will have individuals go out and meet with the
employer on what documents to look for, you know, detection
for--we don't expect that people are going to be fraud experts.
I am not a fraud expert. I don't think that the employer
should be a fraud expert. But, you know, every state requires a
biometric on their driver's license, and if the person has a
driver's license, doesn't look like them, well, I guess maybe
that's not their driver's license. Something basic like that.
We will work with the employer, what documents to look for,
we train them, we'll go out--anybody who is interested in it,
you know, we will be more than willing to work with that
company.
Mr. Wilson. And this is for small and large businesses?
Mr. Chakwin. That is correct.
Mr. Wilson. Mr. Luther, I want to thank you for your
commitment to comply with the law, and I have worked,
firsthand, with first generation Americans from India, who are
very proud to be Dunkin' Donuts franchisees, and your company
has a great reputation.
Mr. Luther. Thank you.
Mr. Wilson. Before your company enrolled in the Basic Pilot
Program, your human resource managers had to review all
documents and simply maintain I-9 records.
How did your company or franchise owners ensure that they
were not accepted fraudulent documents, and are there ways to
improve the documents, to ensure that your personnel are
comfortable with the documents presented?
Mr. Luther. Prior to the Basic Pilot Program, the
requirement was a Social Security number and an I-9, and all
that was verified. The problem was we didn't know if that
verification met that actual employee. And these are small
business owners. Like I mentioned before, we don't have large
human resources departments. So it is the individual small
business owner who is required to make that determination, and
when it is difficult to determine counterfeit documents,
sometimes they would just have to use their own judgment, which
is why the Basic Pilot Program, when it came along, was, we
felt, the only true verification system we could use, and we
have required that and mandated that to all franchisees to
comply with. So we have taken a little bit of that guesswork
away, and although there may be errors, many of those errors,
as my good counterpart here, Abel, has just said, there is a
lot of mismatches, but those mismatches get corrected pretty
easily.
So the millions of people you are talking about get reduced
pretty significantly on that first mismatch round. And what we
do find, though, is after a mismatch, and it is a true
mismatch, they don't come back for employment verification.
They rule themselves out. So that helps our small business
owner as well.
Mr. Wilson. Saves time and complies with the law.
Mr. Luther. Right.
Mr. Wilson. Ms. Simmons, your testimony highlights a
serious flaw in the Reid-Kennedy bill passed by the Senate.
When non-confirmation is given by a verification system, the
Senate bill allows for up to 30 days to determine eligibility.
As you point out, this could expose employers to provide
someone who is not in our country benefits.
What do you believe is the appropriate time limit for non-
confirmation?
Ms. Simmons. The system that we use right now, it gives you
the 10 days for non-conformation. By that time, we should have
it. When I run BPI, it is almost instantaneous, so I don't have
an issue when people are run through the system. We did have a
few mismatches. I guess I like, you know, looking at the
shorter timeframe, without the 30 days. Or 43 days.
Mr. Wilson. And how short could it be?
Ms. Simmons. I guess I like the system right now. You know,
I like the 10 days for the second verification, reverification.
Mr. Wilson. Thank you.
And Mr. Martinez, in your testimony you highlight the error
rates of the Government data bases. We all rely on major credit
card companies to provide almost instantaneous approval. From
your experience, is there a solution to update the data bases
and provide for better accuracy and speed?
Mr. Martinez. Absolutely, Congressman. I think we have just
got to make sure we recognize that we need the resources, both
from the Government side, and be committed to spending those
resources to hire the people we need to, and involve the
consultants that we need to to develop the software that will
be accurate. That is the big issue, is can we make it as
accurate as possible? Because we are going to have some issues,
and we will continue to have issues. We all realistic about
that.
But making sure we have got a system in place, that is
going to be accurate, is really the biggest issue, and I think
when we look at rolling in the process, and right now there is
an eighteen--I think it is basically either a 180 day, or 18
month roll-in process, of phase-in for this new system, the
bigger the ship, the harder it is for a corporation. The more
you employ, to turn around and phase in everyone into this new
system. So I ask, and a side point is, to really consider the
phase-in, and look at a 2-year phase-in based upon the size of
the employer, to make sure we can get these accurate results,
and then making sure that when people come in and apply for
their visas or their work permits, that we can input that
information into the system as quickly as possible.
Waiting 3 months, 6 months, really affects everybody, if
you cannot verify, when somebody comes in, gets an updated
visa, put that information into the system, so that when you
check to see whether or not they are authorized, you can get
that information quickly.
Mr. Wilson. Thank you.
Chairman Johnson. The gentleman's time has expired.
I want to thank the witnesses for their valuable time and
testimony, and both the witnesses and the members for their
participation. A couple of our members from out of state have
airplanes to catch. Thankfully, we have a transportation system
in this country that can get us back and forth pretty rapidly.
So I appreciate that and I would just like to point out
that, you know, Visa and Mastercard can have instantaneous
recognition of who is right and who is wrong----
[Applause.]
Chairman Johnson. This points out that free enterprise and
freedom do work, and that is what America is all about.
If there is no further business, the subcommittee stands
adjourned. Thank you all.
[Whereupon, at 12:25 p.m., the subcommittee was adjourned.]
[Additional submissions for the record follow:]
[Prepared statement of the U.S. Citizenship and Immigration
Services follows:]
Prepared Statement of U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security
I. Introduction
Mr. Chairman, Ranking Member Miller, and Members of the Committee:
We appreciate the opportunity to submit testimony for the record to the
Committee about the U.S. Citizenship and Immigration Services' (USCIS)
Basic Pilot Employment Verification Program (Basic Pilot), which
provides information to participating employers about the work
eligibility of their newly hired workers. We will also describe the
agency's plans to improve and expand the Basic Pilot in preparation for
a nationwide mandatory Employment Verification Program.
An Employment Verification Program is a critical step to improving
worksite enforcement and directly supports the President's goal of
achieving comprehensive immigration reform. In his speech to the U.S.
Chamber of Commerce on June 1, President Bush endorsed the Basic Pilot
as ``a quick and practical way to verify Social Security numbers'' that
``gives employers confidence that their workers are legal, improves the
accuracy of wage and tax reporting, and helps ensure that those who
obey our laws are not undercut by illegal workers.''
Clearly, if we are to control illegal immigration, we can't just
focus on the border. Illegal immigrants are living and working in every
state of the nation, and our solution must be just as comprehensive. We
must make sure that our immigration laws are enforced in New York and
Ohio and Georgia, not just along the southwest border. Today, an
illegal immigrant with a fake ID and Social Security card can find work
almost anywhere in the country without difficulty. It's the prospect of
jobs that leads people to risk their lives crossing a hundred miles of
desert or to spend years in the shadows, afraid to call the authorities
when victimized by criminals or exploited by their boss.
That is why the Administration has proposed a comprehensive
overhaul of the employment verification and employer sanctions program
as part of the President's call for comprehensive immigration reform.
There is much we can do in advance of the enactment of
comprehensive immigration reform. Here's what we are working on at
USCIS to improve and expand the Basic Pilot:
Ensuring that more aliens authorized to work have secure
biometric cards.
Accessing our card databases for verification of work
authorization--which will decrease the number of Basic Pilot queries
that require a manual check.
Streamlining the enrollment process for employers by
making it completely electronic.
Creating monitoring and compliance units that will search
Basic Pilot and Employment Verification Program data for patterns to
detect identification fraud and employer abuse.
The President's FY07 budget requests $110 million for expansion of
the Basic Pilot to make it easier for employers to verify
electronically the employment eligibility of workers. Based on our
planning to date, we believe a feasible timetable allowing for phased-
in expansion of mandatory verification along with flexible, user-
friendly program requirements are essential to expand and operate the
program as efficiently and effectively as possible.
We will also reach out to employers, including small businesses,
for feedback and real-world input, such as ideas on the best ways to
submit data on new hires with the least collective burden and how to
make electronic employment verification as user-friendly as possible.
II. The Current Basic Pilot Program and Employment Verification Program
With that backdrop, we would like to take this opportunity to
outline how the current Basic Pilot works and the plans USCIS is
putting in place to expand and improve it in preparation for a national
mandatory program.
Congress established the Basic Pilot as part of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996,
creating a program for verifying employment eligibility, at no charge
to the employer, of both U.S. citizens and noncitizens. The Basic Pilot
program began in 1997 as a voluntary program for employers in the five
states with the largest immigrant populations--California, Florida,
Illinois, New York and Texas. In 1999, based on the needs of the meat-
packing industry as identified through a cooperative program called
Operation Vanguard, Nebraska was added to the list. The program was
originally set to sunset in 2001, but Congress has twice extended it,
most recently in 2003 extending its duration to 2008 and also ordering
that it be made available in all 50 States. However, the program
remains only voluntary, with very limited exceptions. A small
percentage of U.S. employers participate, although the program is
growing by about 200 employers a month to a current 10,000 agreements
between USCIS and employers. These employers are verifying over a
million new hires per year at more than 35,000 work sites.
We seek in operating the Basic Pilot program to encourage the
voluntary participation of small businesses, and to be responsive to
their needs and concerns. Most (87%) of our participating employers
have 500 or fewer employees. We would welcome your support in reaching
out to enroll even more employers in the program. Interested employers
can register by going to our Basic Pilot Employer Registration Site at:
https://www.vis-dhs.com/employerregistration.
How the Basic Pilot Works
After hiring a new employee, an employer submits a query including
the employee's name, date of birth, Social Security account number
(SSN) and whether the person claims to be a U.S. citizen or work-
authorized noncitizen (for noncitizens, DHS issued identifying # is
also submitted) and receives an initial verification response within
seconds. For an employee claiming to be a U.S. citizen, the system
transmits the new hire's SSN, name and date of birth to the Social
Security Administration (SSA) to match that data, and SSA will confirm
citizenship status on the basis of its Numident database. For the 88%
of employees whose status can be immediately verified electronically,
the process terminates here; in the remaining cases, the system issues
a tentative nonconfirmation to the employer. The employer must notify
the employee of the tentative nonconfirmation and give him or her an
opportunity to contest that finding. If the employee contests the
tentative nonconfirmation, he or she has eight days to visit an SSA
office with the required documents to correct the SSA record.
Noncitizen employees face a more elaborate process. Once SSA
verifies the name, date of birth, and SSN, the system will attempt to
verify the person's work authorization status against the Basic Pilot
database. (If a noncitizen's SSN information does not match, the
individual is first referred to SSA) If the system cannot
electronically verify the information, an Immigration Status Verifier
will research the case, usually providing a response within one
business day,\1\ either verifying work authorization or, in 19 percent
of cases, issuing a DHS tentative nonconfirmation. If the employer
receives a tentative nonconfirmation, the employer must notify the
employee and provide an opportunity to contest that finding. An
employee has eight days to call a toll-free number to contest the
finding and cannot be fired during that time because of the tentative
nonconfirmation. Once the necessary information from the employee has
been received, USCIS generally resolves the case within three business
days,\2\ by issuing either a verification of the employee's work
authorization status or a DHS Final Nonconfirmation.
---------------------------------------------------------------------------
\1\ Statistics gathered from the Basic Pilot database, Oct. 1, 2005
to March 31, 2006.
\2\ Ibid.
---------------------------------------------------------------------------
As you know, the House and Senate have both passed significant
immigration legislation this Congress, including provisions that
require a mandatory electronic employment eligibility verification
program for all 7 million U.S. employers. Although the House and Senate
provisions differ in some significant ways, both bills would require
the eventual expansion to all U.S. employers of an Employment
Verification Program generally modeled on the Basic Pilot.
USCIS is already planning for the expansion of the program. The
President's FY07 budget request includes $110 million to begin
expanding and improving the Basic Pilot, including conducting outreach,
instituting systems monitoring, and compliance functions. USCIS is
exploring ways to improve the completeness of the immigration data in
the Basic Pilot database, including adding information about
nonimmigrants who have extended or changed status and incorporating
arrival information in real time from U.S. Customs and Border
Protection. In addition, USCIS is enhancing the Basic Pilot system to
allow an employer to query by the new hire's card number, when that
worker has a secure I-551 (``green card'') or secure Employment
Authorization Document. This enhancement will improve USCIS' ability to
verify promptly the employment eligibility of noncitizens because the
system will validate the card number against the repository of
information that was used to produce the card, thereby instantly
verifying all legitimate card numbers.
Planned Monitoring and Compliance Functions
No electronic verification system is foolproof or can fully
eliminate document fraud, identity theft, or intentional violation of
the required procedures by employers for the purpose of hiring
unauthorized persons or keeping them on the payroll. But an Employment
Verification Program that includes all U.S. employers, along with
monitoring and compliance functions and a fraud referral process for
potential ICE Worksite Enforcement cases, can substantially deter and
detect the use of fraud by both employers and employees as the
Administration works to strengthen its overall interior enforcement
strategy.
The current Basic Pilot is not fraud-proof and was not designed to
detect identity fraud. In fact, a recent analysis of Basic Pilot
systems data found multiple uses of certain I-94 numbers, A-numbers,
and SSNs in patterns that could suggest fraud. As currently envisioned,
the Employment Verification Program will include robust processes for
monitoring and compliance that will help detect and deter the use of
fraudulent documents, imposter fraud, and incorrect usage of the system
by employers (intentionally and unintentionally). USCIS will forward
enforcement leads to ICE Worksite Enforcement in accordance with
referral procedures developed with ICE. The monitoring unit will
scrutinize individual employers' use of the system and conduct trend
analysis to detect potential fraud. Findings that are not likely to
lead to enforcement action (e.g., a user has not completed training)
will be referred to USCIS compliance officers for follow-up. Findings
concerning potential fraud (e.g., SSNs being run multiple times in
improbable patterns; employers not indicating what action they took
after receiving a final nonconfirmation) will be referred to ICE
Worksite Enforcement investigators.
It is essential that DHS have the authority to use information
arising from the Employment Verification Program to enforce our
Nation's laws, including prosecuting fraud and identifying and removing
criminal aliens and other threats to public safety or national
security. It is also important that the system contain security and
other protections to guard personal information from inappropriate
disclosure or use, and to discourage use of the system to discriminate
unlawfully or otherwise violate the civil rights of U.S. citizens or
work-authorized noncitizens.
Planning for the Employment Verification Program
We are confident in our ability to get a substantially expanded
Employment Verification Program operational with the President's budget
request.
The Administration supports a phased-in Employment Verification
Program implementation schedule on a carefully drawn timeframe to allow
employers to begin using the system in an orderly and efficient way. We
favor having the discretion to phase in certain industry employers
ahead of others. As noted elsewhere in my testimony, USCIS already is
working to improve and expand the Basic Pilot program to support the
proposed expansion.
USCIS is also committed to constructing a system that responds
quickly and accurately. In order for this system to work, it must be
carefully implemented and cannot be burdened with extensive
administrative and judicial review provisions that could effectively
tie the system, and DHS, up in litigation for years.
III. Improved Documentation
In the President's May 15, 2006 address to the nation on
comprehensive immigration reform, he indicated that businesses often
cannot verify the legal status of their employees because of widespread
document fraud. We need, he said, ``a better system for verifying
documents and work eligibility. A key part of that system should be a
new identification card for every legal foreign worker. This card
should use biometric technology...to make it tamper-proof. A tamper-
proof card would help us enforce the law, and leave employers with no
excuse for violating it.''
Many foreign workers already possess a secure, biometric card
evidencing their immigration status as either an immigrant (an I-551
card, commonly known as a ``green card'') or a work-authorized
nonimmigrant (an Employment Authorization Document or EAD). Some
nonimmigrants currently have non-secure EADs, but USCIS is planning to
eliminate the issuance of these cards in favor of secure cards. In
addition, USCIS is considering requiring more classes of work-
authorized nonimmigrants to obtain a secure EAD. Requiring all work-
authorized nonimmigrants to obtain secure documentation would help
ensure that their work eligibility can be instantly verified in the
Basic Pilot or Employment Verification Program. As discussed
previously, USCIS already is developing the system capability to verify
a new hire's immigration card number against the card information
repository. Under this new system, a legitimate card number matched
with a name and date of birth will electronically verify in a matter of
seconds--and only a fraudulent card would fail to verify.
IV. Conclusion
We in USCIS are in a unique position to understand the importance
of having legal means for individuals to enter and work in the United
States. That is why we, and the President, support comprehensive
immigration reform that includes interior and border enforcement in
addition to a temporary worker program.
We thank both the House and the Senate for recognizing the need for
change in this area. With a strong cooperative effort now, the prospect
of a truly effective national mandatory Employment Verification
Program, combined with improved documentation, will reduce pressure on
border and interior enforcement, simplify today's processes, put
employers on an equal footing, and support a temporary worker program
that is vital to our economy.
______
[News release and fact sheet from the U.S. Citizenship and
Immigration Services follow:]
News Release
Proven Employment Verification Tool Attracts More Than 10,000 U.S.
Employers
Record Numbers Now Using the Basic Pilot Employment Verification
Program
Washington, DC--U.S Citizenship and Immigration Services (USCIS)
today announced that more than 10,000 U.S. employers are now
participating in the Basic Pilot Employment Verification Program. The
program allows employers to remove the guesswork involved with the
hiring process by running online employment authorization checks
against Social Security Administration and DHS databases.
``Participation in the Employment Verification Program is the
solution for businesses committed to maintaining a legal workforce,''
said USCIS Director Emilio Gonzalez. ``Through the program, DHS is
providing employers with information needed to ensure their newly hired
employees are fully eligible to work in the United States. In the
process, we're protecting jobs for authorized U.S. workers.''
Participation in this free program has more than doubled during the
first three quarters of this fiscal year. Nearly 200 new employers are
joining the Employment Verification Program each month. These
businesses are verifying the work authorization of more than one-
million new hires a year at 36,000 hiring sites across the United
States.
Employers can register for the Employment Verification Program on-
line at https://www.vis-dhs.com/EmployerRegistration. Additional
information for employers about the program is available by calling
202-272-8720 or visiting www.uscis.gov.
On March 1, 2003, U.S Citizenship and Immigration Services became
one of three legacy INS components to join the U.S. Department of
Homeland Security. USCIS is charged with fundamentally transforming and
improving the delivery of immigration and citizenship services, while
enhancing the integrity of our nation's security.
______
Fact Sheet
Basic Pilot Employment Verification Program
Removing the Guess Work from Employment Document Review
The Employment Verification Program * * * ``is a quick and
practical way to verify social security numbers giving
employers confidence that their workers are legal * * * ''
President George Bush,
June 1, 2006.
The Basic Pilot Employment Verification Program allows employers to
remove the guesswork involved with hiring new employees. Conducted
jointly by the Department of Homeland Security (DHS) and the Social
Security Administration (SSA), the Employment Verification Program
allows employers to use an automated Internet-based system to run
employment authorization checks against DHS and SSA databases during
the hiring process. In the process, it assists employers in maintaining
a legal workforce and protects jobs for authorized U.S. workers. The
program is administered by U.S. Citizenship and Immigration Services.
The Employment Verification Program became available to all
employers in California, Florida, Illinois, New York and Texas in
November 1997, and to Nebraska employers in March 1999. On December 20,
2004, the program expanded to allow employers in all 50 states and the
District of Columbia to voluntarily participate.
More than 10,000 employers are currently using the program to
verify that their new hires are authorized to work in the United
States. There is no charge to participate. The President's FY07 budget
request includes $110 million to expand and improve the Employment
Verification Program.
Employers can register on-line at https://www.vis-dhs.com/
EmployerRegistration, which provides instructions for completing the
Memorandum of Understanding (MOU) needed to officially register for the
program.
Once registered, employers use the Employment Verification Program
through a simple search function which asks for information captured on
the I-9 Form (Employment Verification form). Each Employment
Verification search compares employee information against more than
425-million records in the SSA database and more than 60-million
records in DHS databases. Most responses are returned within seconds.
The Basic Pilot Extension and Expansion Act of 2003 extended the
Basic Pilot Employment Verification Program until November 2008. The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) authorized the program. Additional information for employers
about the Employment Verification Program is available by calling 202-
272-8720 or visit www.uscis.gov.
On March 1, 2003, U.S Citizenship and Immigration Services became
one of three legacy INS components to join the U.S. Department of
Homeland Security. USCIS is charged with fundamentally transforming and
improving the delivery of immigration and citizenship services, while
enhancing the integrity of our nation's security.
______
[Prepared statement of the American Staffing Association
follows:]
Prepared Statement of the American Staffing Association
Introduction
The American Staffing Association appreciates the opportunity to
offer comments on the topic of enforcing employee work eligibility laws
and implementing a stronger employment verification system. While we
strongly support an electronic employment verification system, such as
the type proposed in both House and Senate immigration reform bills,
there are several issues that need to be addressed to make such a
system fair and workable.
ASA has been the voice of the U.S. staffing industry for 40 years.
Along with its affiliated chapters, ASA promotes the interests of the
industry and flexible employment opportunities through legal and
legislative advocacy, public relations, education, and the
establishment of high standards of ethical conduct.
ASA members provide a wide range of employment-related services and
solutions, including temporary and contract staffing, recruiting and
placement, outsourcing, training, and human resource consulting. Member
companies operate more than 15,000 offices across the nation and
account for more than 85% of U.S. staffing industry sales.
The staffing industry employs almost 3 million employees a day and
more than 12 million each year. Staffing firms recruit and hire their
employees and assign them to businesses to assist in special work
situations such as employee absences, skill shortages, and seasonal
workloads, or to perform special assignments or projects. Employees
work in virtually every skill level and job category, including
industrial labor, office support, engineering, IT, legal, accounting
and health care.
Problems with the Current Employment Verification Efforts
The current employment verification process is based on the
employers' review of documents presented by new employees to prove
their identity and work eligibility. Employers use a form known as the
I-9 form to certify that they have reviewed documents presented by
their employees and that the documents appear genuine and relate to the
individual presenting the documents. However, as technology continues
to improve, document fraud and identity fraud have undermined the
employment verification process. Simple proposals to revise the I-9
process, such as reducing the number of acceptable work eligibility
documents, have yet to be acted on.
Worksite Enforcement Issues
According to a recent GAO report, the worksite enforcement program
has been a low priority under both the former Immigration and
Naturalization Services (INS) and its successor the Immigration and
Customs Enforcement (ICE). During fiscal year 1999, INS devoted about 9
percent of its total investigative agents' time to worksite
enforcement, while in fiscal year 2003 it allocated about 4 percent.
ICE officials reported difficulties in proving employer violations and
setting and collecting fine amounts that meaningfully deter employers
from knowingly hiring unauthorized workers. In addition, INS and then
ICE shifted its worksite enforcement focus to critical infrastructure
protection after September 11, 2001.\1\
---------------------------------------------------------------------------
\1\ United States Government Accountability Office, Immigration
Enforcement: Preliminary Observations on Employment Verification and
Worksite Enforcement Efforts, June 21, 2005.
---------------------------------------------------------------------------
The Need for a Stronger Employment Verification System
Throughout the entire debate on immigration reform, one of the few
points that both members of the House and Senate agree on is the need
to expand the current voluntary Basic Pilot program into a mandatory
electronic employment verification system.
While the basic pilot program has been very successful with
enhancing the employment verification process, there are still several
issues that need to be addressed before a mandatory system can be
introduced. The cost and time table for creating and implementing an
electronic verification system that every employer in the United States
was required to use is a major concern. Also, while the pilot program
helps detect document fraud, it is unable to detect identity fraud.
In implementing a new employment verification system, Congress
needs to address not only the issues raised above, but they must also
address the following issues that affect staffing firms in particular.
As Under Current Law, Employers Should Have the Option of Verifying
Employees Upon Offer of Employment Or When They Actually
Commence Work
Under current law, staffing firms and other employers have the
option of verifying employment eligibility upon offer of employment or
at the time work actually commences. [52 F.R. 16218, May 1, 1987]
Staffing firms generally opt to treat individuals who successfully
complete a job application and are deemed qualified for job assignments
as having been offered employment for the purpose of completing the I-9
verification, even though a specific job assignment is not immediately
available.
Most temporary and contract workers wait anywhere from a day to
several weeks before being contacted by the staffing firm for a job
assignment with a staffing firm customer and most never have an
occasion to return to the staffing firm's offices. Once notified of a
job assignment, employees typically go from home directly to the
customer's work site. Because many assignments must be filled on short
notice, it would be difficult if not impossible for most employees to
return to the staffing firm's office to complete the attestation and
document examination process prior to going on the job. Moreover,
getting to the staffing firm's office would be a significant hardship
for employees who live far from the staffing firm's offices or who rely
on public transportation.
Accordingly, staffing firms and other similarly situated employers
must continue to have the option of completing the attestation and
document examination phase of the verification process at the time they
are offered employment.
Employers should have the same flexibility in using the new
electronic employment verification system. Staffing firms and other
employers whose employees do not commence work immediately should have
the option of accessing the system at the time the individual is
offered employment (e.g., when the individual has successfully
completed the application process and been approved for employment) or
when work actually commences.
The Employment Verification System Should Not Apply to All Recruiters
and Referrers
Under current law, the obligation to verify employment eligibility
generally applies only to employers, not to those who merely recruit or
refer individuals for employment by others. The only exception is for
those who recruit agriculture or farm workers. [8 U.S.C. Section
1324a(a)(1)(B)(ii).] Congress narrowed the verification requirements to
agriculture or farm recruiters in 1991 recognizing that it was
unnecessary to also impose those requirements on traditional placement
agencies and executive recruiting firms whose clients already have the
obligation to verify eligibility upon hire.
Both House and Senate immigration reform bills would make it
unlawful to hire ``or to recruit or refer for employment'' an
individual without complying with the employment verification
requirements. We are concerned that this broad reference to those who
recruit and refer could again be construed inappropriately as expanding
the verification obligations to all recruiters. While we have been
advised by staff members of the House and Senate Judiciary Committee
that this is not the intent of the legislation, in order to avoid any
misinterpretation, we urge that the bill be amended to make that
unequivocally clear.\2\
---------------------------------------------------------------------------
\2\ Sections 705 and 708 of H.R. 4437 appears to limit the
reference to recruiting and referring in Section 703 to labor services
agencies that operate hiring halls or day labor shelters, which would
be appropriate. But the Senate bill contains such limitation.
---------------------------------------------------------------------------
Employers Should Not be Charged a Fee for Using The System
According to a Congressional Budget Office cost estimate report,
the cost to develop and fully implement a viable electronic employment
verification system will be more than $400 million over a 4-year
period. While some believe employers should be charged a fee for using
this system, we believe that would place an unwarranted burden on
businesses. A fee-based system will also have an unfair and
disproportionate impact on employers with large numbers of part-time
and temporary employees and high employee turnover, such as staffing
firms, restaurants, and retail establishments.
Businesses Should Not be Required to Reverify Current Employees
Any new verification system must be fair to all employers. The new
system proposed in the House immigration bill requires all employers to
verify their entire work force through the new system by the year 2012.
This requirement is unnecessary because these employees will have
already been verified by their employers through the current I-9
process. It will also cost employers time and money and will
discriminate against employers with disproportionately large temporary
and part-time work forces and high turnover. Instead of requiring
blanket reverification for all employers, Congress should allow the
Secretary of Homeland Security to require reverification only if an
employer has engaged in material violations of the law.
Conclusion
Efforts to reduce the employment of unauthorized workers in the
United States require both a strong employment eligibility verification
process and a credible worksite enforcement program to ensure that
employers meet verification requirements. The American Staffing
Association strongly supports Congress's efforts to achieve this goal,
and we look forward to working with members of Congress and others to
bring such a system to fruition.