[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
ELECTRONIC EMPLOYMENT VERIFICATION SYSTEMS: NEEDED SAFEGUARDS TO
PROTECT PRIVACY AND PREVENT MISUSE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
JUNE 10, 2008
Serial No. 110-132
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
LINDA T. SANCHEZ, California LOUIE GOHMERT, Texas
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
JUNE 10, 2008
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
The Honorable Ken Calvert, a Representative in Congress from the
State of California
Oral Testimony................................................. 7
Prepared Statement............................................. 10
The Honorable Heath Shuler, a Representative in Congress from the
State of North Carolina
Oral Testimony................................................. 11
Prepared Statement............................................. 13
The Honorable Sam Johnson, a Representative in Congress from the
State of Texas
Oral Testimony................................................. 15
Prepared Statement............................................. 19
The Honorable Gabrielle Giffords, a Representative in Congress
from the State of Arizona
Oral Testimony................................................. 21
Prepared Statement............................................. 27
Mr. Jonathan ``Jock'' Scharfen, Acting Director, United States
Citizenship and Immigration Service
Oral Testimony................................................. 45
Prepared Statement............................................. 47
Ms. Carolyn F. Shettle, Ph.D., Senior Study Director, WESTAT
Oral Testimony................................................. 58
Prepared Statement............................................. 60
Mr. Timothy Sparapani, Senior Legislative Counsel, Washington
Legislative Office, American Civil Liberties Union
Oral Testimony................................................. 68
Prepared Statement............................................. 70
Christopher J. Williams, Esquire, Director, Working Hands Legal
Oral Testimony................................................. 81
Prepared Statement............................................. 82
Ms. Glenda Wooten-Ingram, Director of Human Resources, Embassy
Suites Convention Center
Oral Testimony................................................. 84
Prepared Statement............................................. 85
Material Submitted for the Hearing Record........................ 93
ELECTRONIC EMPLOYMENT VERIFICATION SYSTEMS: NEEDED SAFEGUARDS TO
PROTECT PRIVACY AND PREVENT MISUSE
TUESDAY, JUNE 10, 2008
House of Representatives,
Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Committee on the Judiciary,
The Subcommittee met, pursuant to nall, at 10:05 a.m., in
room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Gutierrez, Jackson Lee,
Waters, Sanchez, Conyers, King, Gallegly, Goodlatte, Lungren,
Staff Present: Traci Hong, Majority Counsel; Andres
Jimenez, Majority Professional Staff Member; George Fishman,
Ms. Lofgren. The hearing on the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order.
I would like to welcome our Subcommittee Members, our
witnesses, and members of the public to the Subcommittee's
hearing on Electronic Employment Verification Systems,
otherwise known as EEVS, systems which, if made mandatory as
some have proposed, would affect all 163 million United States
workers and 7 million employers in the United States.
In this hearing, I look forward to examining how U.S.
Workers may be impacted by a mandatory EEVS and explore ways to
protect U.S. Workers from unintended consequences of EEVS error
and/or potential misuse.
Last year, the Immigration Subcommittee held two hearings
on Employment Eligibility Verification Systems in the context
of comprehensive immigration reform. The first hearing, on
April 24, 2007, examined problems with the current paper-based
system as well as the Electronic Employment Verification
System. And the second hearing, on April 26, 2007, explored
proposals to improve employment eligibility verification with
emphasis on the EEVS. At the time, four bills mandating the use
of an EEVS had been introduced in the House of Representatives
in the 110th Congress. There are now 11 bills pending before
this Congress that would mandate the use of EEVS.
Currently, the only functioning EEVS is known as Basic
Pilot or E-Verify. It is a voluntary program. Less than 1
percent of all employers in the U.S. are currently enrolled to
use E-Verify. In addition, the Government Accountability Office
says that only half of the registered employers are active
users who have used the system at least once. At the current
level of use, according to DHS, in August last year, E-Verify
received approximately 2 million queries a year. If E-Verify is
made mandatory for all employers, it would be 63 million
queries a year for new employees. And there are many proposals
that would go beyond verification of new employees to include
existing, and there are 163 million estimated workers in the
United States at this time.
As we consider mandatory EEVS for all employees, we should
consider problems in the existing program to avoid problems on
a larger scale. Some of the issues we hope to consider today
stem from reports produced by our own Government, a
nongovernmental research corporation, and university. These
reports raise concerns about U.S. workers being wrongfully
denied work authorization under E-Verify.
In April 2007, the Service Employees International Union
testified before this Committee that, unless database errors
are cured, 24,000 of the 300,000 estimated workers in each
congressional district would be erroneously denied the
eligibility to work by E-Verify. That did catch our attention,
because all 24,000 of those American citizens will be calling
The reports have also documented some employer misuse of E-
Verify. A 2007 Westat report states that 16 percent of
employers reported that they had failed to train all of their
relevant staff on their system. In addition, although E-Verify
prohibits registered employers from using E-Verify for pre-
employment screening of job applicants, this practice is common
among employers. Almost one-third, 31 percent, reported using
E-Verify to verify employment eligibility before the employee's
first day of paid work, including many who used pre-screening
at the time of the employee's application.
Employers also reported significant difficulty meeting the
requirement of verifying a new employee's information within 3
days of the employee's first day of work. According to Westat,
GAO, and other outside experts, anyone who claims to be an
employer can sign up to use E-Verify by signing an MOU with DHS
and FSA, thereby obtaining the ability to access very private
information. So we want to make sure that whatever we do as we
move forward does keep secure the private information of our
These are just some of the issues that have been raised.
Before the Congress moves forward on an effort to expand this
system, we want to consider the issues thoroughly so that they
may be appropriately addressed. And I hope that this hearing
will provide us with a thorough understanding of these issues
and the opportunity to identify ways to address them
I recognize our Ranking Member, Steve King, for his opening
Mr. King. Thank you, Madam Chairman.
For the past decade, the Basic Pilot Program has given
American employers a fast and easy method to ensure that their
new employees are genuinely eligible to work in this country.
Employers are signing up in droves, about 1,000 new employers
per week, and that is also being inspired because some States
have mandated that their home State employers use the Basic
Pilot Program now referred to as E-Verify by DHS.
Basic pilot allows employers to check the Social Security
numbers and alien identification numbers of new employees
against Social Security Administration and DHS records in order
to ensure that they match. This is what the American people
want; 79 percent of Americans polled believe the Federal
Government should require all employers to verify U.S.
citizenship or lawful presence for each job applicant by a
telephone or online check of a Federal database.
The Basic Pilot Program reduces--and I am going to repeat
that--the Basic Pilot Program reduces job discrimination. The
2007 Westat report on the Internet-based Basic Pilot Program
found that most users reported that the Web-based Basic Pilot
Program made them neither more nor less willing to hire illegal
immigrants--or hire immigrants, excuse me, legal workers.
However, when change was reported, it was almost always in the
direction of making employers more willing hire more
Now, the requirements of Basic Pilot Program do not always
make sense for employers. For example, the way it prohibits
employers from verifying individuals before they are offered a
job; no employer wants to be forced to keep an illegal
immigrant on the payroll for perhaps weeks while they go
through secondary verification, and that is a burden. Employers
should be able to check all job candidates before they are
hired as long as they do so in a nondiscriminatory manner.
Employers should also be able to verify their existing
employees that they are work-authorized, not just for new
hires. Not only will this give employers peace of mind, it will
ensure that we don't simply allow all 7 million employed
illegal immigrants to keep their current job.
This being said, USCIS does need to ensure that all
employers who use the Basic Pilot Program adhere to the
Memorandum of Understanding that they signed. USCIS is on the
right track in beefing up its monitoring and compliance
programs to better detect and deter potential misuse and abuse
of the program by employers.
The accuracy of the Basic Pilot Program is remarkable. The
2007 Westat report revealed that just about 99 and a half
percent--actually, it was 99.4 percent--of all work-authorized
employees are immediately verified. Immediately verified.
And the Basic Pilot Program is going to get even better.
The system now automatically checks naturalization records
before issuing a citizenship status mismatch. In addition,
naturalized citizens who receive a mismatch are now able to
contact DHS by phone to address the discrepancy. So it is
U.S. Citizenship and Immigration Services is also dealing
with the potential for identity theft in different ways. First,
it has added a photo-screening capability. This allows
employers to compare the photos of employment-authorized
documents and permanent resident cards, and those that are
presented by employees through the employers, and compare those
pictures against the images stored in the USCIS databases.
DHS's long-term goal is to allow employers to verify the photo
on all identity documents that employees present.
Second, in the future, the Basic Pilot Program will provide
information on the suspicious multiple use of Social Security
numbers in the context of Basic Pilot Program to ICE for
Basic Pilot has proven its worth. It deserves to be made
permanent, and employers deserve the right to be able to check
the work eligibility of their entire workforces, not just new
hires. I will shortly introduce legislation called the New IDEA
Act. In fact, it is a refreshing of a bill that I introduced in
the 109th Congress. That bill eliminates the deductibility of
wages and benefits paid to illegals. It gives the employer safe
harbor if he uses Basic Pilot/E-Verify, and it also extends Mr.
Calvert's legislation and makes it permanent and allows
employers to verify current employees as well as job
I want to thank Mr. Calvert for introducing this
legislation and having the vision more than 10 years ago to get
us to this point where we are today. And I would ask this
point, how do you perfect a system? We have a system that is
almost perfect now. By a standard of measure, 1 out of 200
legitimate job applicants is rejected by the system, and
generally that is because they have failed to register a name
change. That is not a Government problem, except that
Government needs to cooperate and facilitate the correction of
that. And I think soon we will see it will be 1 out of 400. And
maybe we will hear that testimony today.
So how do you correct a system? You use it. And the comment
about access to very private information, I am signed up on
Basic Pilot. I have used it in my office, and I don't have
access to any private information except job applicant
information. So perhaps we will get that issue illuminated a
little bit as that hearing goes on.
And then with regard to only 1 percent of employers use it
and only 2 million hits a year compared to 63 million, we can
grow this system to address this. We know how to do that, and
it is--the answer is to use it.
So, with that, I thank the witnesses for being here today.
And, Madam Chairman, I look forward to their testimony, and I
yield back the balance of my time.
Ms. Lofgren. I understand that the Ranking Member of the
full Committee would like to make a opening statement.
Mr. Smith. Thank you, Madam Chair, I would.
In 1986, Congress made it unlawful for employers to
knowingly employ illegal immigrants. Congress also required
employers to check the identity and work eligibility documents
of all new employees. Unfortunately, the easy availability of
counterfeit documents soon made a mockery of this process.
Employers who didn't want to hire illegal immigrants had no
choice but to accept documents they knew were likely to be
Congress took action in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. The act created the Basic
Pilot Program. For the last decade, this program has provided
American employers who want to do the right thing with an
effective tool to ensure that they are hiring a legal
workforce. It ensures that new employees are not providing
their employers with fake Social Security numbers.
As the Basic Pilot Program has grown more popular, over
69,000 employers Nationwide now participate, it has been the
subject of some very unfair criticism, and I want to set the
Participating employers are very happy with the Basic Pilot
Program. Last year, an outside evaluation found that, ``most
employers found the Web Basic Pilot to be an effective and
reliable tool for employment verification, and 96 percent did
not believe that it overburdened their staffs.''
The accuracy of the databases that lie at the heart of the
Basic Pilot Program has been unfairly maligned. However, the
facts about these databases could not be better. Last year's
outside evaluation found that in less than 1 percent, actually
only 0.6 percent of cases, do employees who are briefly
determined to be work-authorized receive a tentative
nonconfirmation and undergo further review. This means, as the
Ranking Member of the Subcommittee mentioned a while ago, that
persons eligible to work receive immediate confirmation 99.4
percent of the time. For the native born, 99.9 percent receive
immediate confirmation. And for employees born outside the
United States, it is 97 percent receive immediate confirmation.
A common misperception is that secondary verification means
error by a Federal agency. This is simply not the case.
Secondary verification most often means that an illegal
immigrant has been caught providing bogus information or that
an employee has failed to update their records with the Social
Security Administration. This fact is seldom acknowledged.
Even when persons eligible to work have to go through
secondary verification, they are largely satisfied with the
services providing by SSA. Of the employees who contacted local
SSA offices as part of the verification process, 95 percent
said their work authorization problem was resolved in a timely,
courteous, and efficient manner.
Finally, it has been specifically alleged that the Social
Security Administration's Inspector General has found the
Agency's database to be inaccurate. However, the Inspector
General actually stated that, ``we applaud the agency on the
accuracy of the data we tested.''
The Basic Pilot Program has worked well. In the vast
majority of cases, employers find out immediately their new
employees are work-authorized over 99 percent of the time, and
legal workers receive instantaneous confirmation. We will hear
testimony today from U.S. Citizenship and Immigration Services
that they are putting improvements into place that will make
the Basic Pilot Program even more responsive.
Finally, I want to applaud the Administration's decision to
require companies who contract with the Federal Government to
use the Basic Pilot Program. This protects the American worker
by ensuring that all Federal jobs, both direct and indirect,
are reserved for legal workers.
Thank you, Madam Chairman.
Ms. Lofgren. Mr. Smith, thank you very much.
I would now recognize the Chairman of the Committee, Mr.
Conyers, for his opening statement.
Chairman Conyers. Thank you, Chairwoman Lofgren, and
Ranking Member Steve King.
This is an important hearing on Electronic Employment
Verification Systems, and we have a very distinguished panel.
Representative Calvert started this, and then Representative
Shuler wants to improve upon it. And now comes Representative
Sam Johnson of Texas with his cohort, Representative Giffords,
and they have got plan B.
And so I want to commend the Chairwoman of the Committee
and the Ranking Member for putting this kind of a hearing
together today. It is very important.
We are looking to sort out some of the facts and fictions
about the way this program is operating and how we can improve
the system. It sounds so simple, but there are 11 bills before
this Committee already. They are basically plan A or plan B;
but everyone's interest I think is commendable, because what we
are trying to do is see how we can improve the Electronic
Employment Verification System.
It starts out so simple, and solutions seem quite logical:
How do we deal with illegal immigration? All new hires must be
checked against Social Security and Homeland Security databases
to see if they are legally entitled to work in the United
States. What is the problem? Well, the problem is, how does the
system really work?
Essentially, we can become a super giant Government
database on all Americans and require American workers to be
registered and checked for hiring. True or false? Well, we will
get the answers from you four this morning.
It will impose a burden on small businesses, whether their
workforce is 100 percent American or includes some immigrants.
True or false?
It will drive immigrant workers even further underground.
True or false?
It will cost $17 billion in lost tax revenue. True or
It will constitute a significant step toward a national
identification card. Boo.
So, let's get it on, Madam Chairman, and I thank you for
Ms. Lofgren. Thank you, Mr. Chairman.
In the interest of proceeding to our witnesses, and mindful
of our busy schedules, the opening statements of all other
Members, without objection, will be made part of the record.
And we will now go to our first panel.
All four of our colleagues sitting before us have been
active and leaders in this issue. We appreciate their being
here with us here today.
I am going to first introduce Congressman Ken Calvert, who
was elected in 1992 and represents California's 44th
Congressional District, which includes Riverside and Orange
County. He is a former small businessman, and currently serves
on the House Appropriations Committee. In 1996, he authored a
bill that was included in the 1997 omnibus appropriation bill
which created the Basic Pilot Program, which is now known as E-
I think you were the first, Ken.
Next, we have Congressman Heath Shuler who represents North
Carolina's 11th District. Congressman Shuler received his B.A.
From the University of Tennessee in 2001 and is a former
professional athlete and business owner. He is married and has
two children, Navy and Island, and he remains an active member
in the Fellowship of Christian Athletes.
We are also pleased to welcome Congressman Sam Johnson, who
represents the people of Texas's Third District. Mr. Johnson
serves on the Committee of Ways and Means and is the Ranking
Member on the Social Security Subcommittee. He returned home to
Texas after serving in the U.S. Air Force for 29 years as a
highly decorated fighter pilot. He flew combat missions in both
the Korean and Vietnam wars, and was a prisoner of war in Hanoi
for nearly 7 years. After his distinguished military career,
Congressman Johnson started a home-building business from
scratch, and served in the Texas legislature.
And, finally, I would like to introduce Congresswoman
Giffords, who represents Arizona's Eighth District, a diverse
area that includes a 114-mile border with Mexico. She serves on
the House Armed Services, the House Foreign Affairs Committee,
is a third-generation Arizonan, and the youngest woman ever
elected to the Arizona State Senate. Congresswoman Giffords
represented her hometown of Tucson in the Arizona legislature
from 2000 to 2005. During her service in both the Arizona House
and Senate, she worked on legislation to expand health care
coverage for Arizona families, and to protect Arizona's
environment and open spaces.
You are all welcome to submit your full statements for the
record. You know that we ask that oral testimony consume about
5 minutes. I know that Congressman Calvert has a competing
obligation in the Transportation Committee, so we are going to
ask Congressman Calvert to go first. And if you need to leave
before we get to questions, we have all been there; we will
So let's begin with you, Congressman Calvert.
TESTIMONY OF THE HONORABLE KEN CALVERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Calvert. Thank you, Chairwoman Lofgren, Chairman
Conyers, Ranking Member King, and Members of the Committee.
Good morning. Thank you for inviting me here to testify today.
Several years ago, I was happy to work with Chairwoman
Lofgren to help improve our legal immigration system with a
bill that allowed legal permanent resident applicants to name a
new sponsor if their original sponsor died during the process
of becoming a United States citizen, and I look forward to
working with the Chairwoman on the two bills I have introduced
H.R. 19 would make the program mandatory. H.R. 5596 would
provide a straightforward 10-year extension to the current
When I first wrote the bill that created E-Verify, I
intentionally created it on a limited basis for the very
reasons we are here today: to ensure that it would not be
abused or be a source of misinformation. It is vital that
participating employers who volunteer to use this program and
the new employees who are hired are not disenfranchised.
From its humble beginnings in just five States, E-Verify is
now available Nationwide, with approximately 70,000 employers
participating. A recent Westat report shows that 94.2 percent
of all checks to the system are automatically verified as
authorized to work. The remaining 5.8 percent are employees
that receive an initial mismatch and need to take further
action to prove that they are authorized to work in the United
For many people, this means their Social Security records
are in need of an update. Perhaps they have a new marital
status or have become naturalized citizens. For 90 percent of
those individual cases, the process takes less than 2 days of
the 8 business days allowed to work out either DHS or SSA to
correct that discrepancy.
It is important to point out that if an individual's
personal information is out of date or incorrectly reported
with SSA, this information must be rectified anyway to ensure
that their Social Security credits are properly recorded.
Just a few weeks ago, E-Verify introduced software changes
that will automate the correction process which reduce the
number of visits to the Social Security offices from five
presently to two or three per thousand, a 50 percent
Of the 5.8 percent of queries that do not receive instant
verification, 0.55 percent resolve the mismatch, and the
remaining 5.3 percent walk away from the process entirely. Why
do they walk away? Because E-Verify is denying jobs to people
I would also like to point out that the protection is
already in place to specifically protect workers from employers
abusing this system. First, employers must check all new
employees. It is against the law to use it as a screening tool.
When an employee is notified there is a mismatch, they are
provided with instructions on how to correct the information.
That instruction sheet also provides a toll free number to the
Office of Special Counsel for Immigration Related Employment
Practices. E-Verify also has launched an information campaign
aimed at informing and promoting employees of their rights
within the program. Participating employers must also post a
notice visible to prospective employees of their rights and a
phone number to the Special Counsel.
E-Verify has also an Office of Compliance, and a monitoring
branch has begun monitoring employer usage of the program.
After a recent hearing held by the Subcommittee on Social
Security, I met with the people who run E-Verify to ask them
about some of the questions raised at the hearing about the
program and problems employers in Arizona have encountered.
E-Verify has never notified an incorrect final
nonconfirmation. This is good news for the both the employers
and employees who are in increasing numbers being required to
use the program. The State of Arizona and Mississippi require
all employers to use E-Verify. And Friday, President Bush
signed an executive order requiring all Federal contractors to
use the program.
E-Verify is not perfect. No system is. But it is a very
good system that has safeguards to ensure that employers' and
employees' rights are being protected in accordance with the
I thank you for inviting me here today, and I apologize
that I must leave, as I mentioned to you, Madam Chairman, for
the Transportation and Infrastructure Committee. I appreciate
your time. And if anybody would like to have questions later
on, I would be more than happy to attempt to answer them.
Thank you very much.
[The prepared statement of Mr. Calvert follows:]
Prepared Statement of the Honorable Ken Calvert, a Representative in
Congress from the State of California
Ms. Lofgren. Thank you very much, Congressman Calvert.
And if we do have questions, we will forward to them in
writing. We thank you very much. And good luck over in
Congressman Shuler, we would be pleased to hear from you
TESTIMONY OF THE HONORABLE HEATH SHULER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Shuler. Thank you, Madam Chair.
Chairman Conyers, thank you for being here.
Madam Chair, thank you for hosting this Committee.
Ranking Member King, thank you for all your hard work on
many legislations dealing with immigration.
Madam Chair, Members of the Subcommittee, last year I
introduced H.R. 4088, the bipartisan SAVE Act, with 44
Democrats and 46 Republicans. Today, 245 Members of Congress
from 44 States have joined their constituents in calling for a
debate and a vote on the SAVE Act.
We are committed to stopping illegal immigration through
improved border security, employment verification, and interior
enforcement. We cannot continue to ignore our immigration
crisis by passing it on to future Congresses and future
U.S. Customs and Border Protection estimates that over 12
million people are currently here illegally, and as many as
6,000 illegal aliens are crossing the borders every day. The
vast majority of these individuals come to our country in good
faith, to find work and better their family's life.
The SAVE Act recognizes that America is a Nation of
immigrants and a Nation of laws. Our country must have a
welcome mat to those who are here legally. It must also
consider the rules of entry, the cost of illegal immigrants
placed on the local and State governments, and the effect of
millions of unemployed Americans.
While the SAVE Act has a strong emphasis on border security
and interior enforcement, the real thrust of my legislation
deals with employer verification. Dishonest employers who seek
to exploit low-skilled immigrant labor and the Government's
inability to secure its borders are the major reasons for the
rapid increase in our illegal population. In most cases, the
job offered acts as a magnet, drawing people over 20-foot walls
and through inhumane desert conditions to find work.
Two decades ago, our Government tried to stop illegal
hiring through the form I-9 for all new employees hired after
1986. While employment verification is current law, form I-9
compliance alone requires business owners to be document
experts, as they determine that an ID is valid. This places
serious liability on them if they make a mistake. To deal with
these concerns, Congress created the Basic Pilot Program in
1996. That is now known as E-Verify.
The SAVE Act would expand the pilot program nationwide over
a 4-year period, affecting 40,000 larger businesses in the
first year and slowly including smaller businesses in the final
3 years. E-Verify is free, easy to use, and it allows
participating employers to successfully match 93 percent of new
hires to DHS and SSA databases in less than 5 seconds.
For every 1,000 workers running through the system, 942
workers are instantly verified by the system; 53 workers don't
bother to contest the mismatch, likely because they are here
illegally; only 5 workers successfully contested this mismatch.
Therefore, E-Verify's error rate is less than one half of 1
percent. DHS is unaware of one case since 1996 where a U.S.
Citizen was denied employment because of an error in the E-
According to the Department of Labor, there were 7.8
million new hires in the U.S. during the first 2 months of
2008. In that same period of time, over 1 million new hires
were checked through E-Verify. On that basis, E-Verify is
handling at least one in eight new hires already. Based on a
recent load testing, the system has the capability of handling
240 million inquiries per year. That is four times the number
of people in the U.S. who are usually hired in a given year.
E-Verify outlines a fair and proper method of using the
system in multiple languages to protect employees from
discrimination of hiring practices. E-Verify gives employers
the tools that they need to follow the Nation's immigrationlaws
and to avoid the penalties that result in hiring illegal
Madam Chairman, I have the utmost confidence in this
program, as does the Secretary of Homeland Security, who just
yesterday stated that E-Verify should be used by all Government
contractors based on the present executive order. The Secretary
has also testified that E-Verify is ready for national rollout.
And, additionally, the Democratic Governor of Arizona who
recently signed E-Verify into law says her State has not
experienced major problems with E-Verify.
Every congressional staffer and employee of a Federal
agency has passed through the E-Verify system over the past
decade. E-Verify is required by law in various degrees in
Arizona, Colorado, Georgia, Idaho, Minnesota, Utah,
Mississippi, Oklahoma, and my home State of North Carolina.
Prior to each State making this effort, several interest
groups warned of the impacts or disaster that E-Verify would
have if it became law. Yet, the spokeswoman from the Arizona
Chamber of Commerce, a group who opposed the E-Verify in its
State legislation last year, said: Fewer problems have been
reported than originally feared; companies have not left the
State in reaction to E-Verify; and employers have not reported
major problems with the database.
Madam Chair, thank you for the opportunity to speak on E-
Verify and the SAVE Act today. It is a pleasure just to testify
today with my friend Ken Calvert, Gabbie Giffords, and a true
American hero, Sam Johnson.
Mr. Calvert and I agree that mandatory employment
verification is a solution to this problem.
I am happy to answer any questions you may have on the SAVE
[The prepared statement of Mr. Shuler follows:]
Prepared Statement of the Honorable Heath Shuler, a Representative in
Congress from the State of North Carolina
Ms. Lofgren. Thank you very much, Congressman Shuler.
Now we will turn to Congressman Johnson.
TESTIMONY OF THE HONORABLE SAM JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Johnson. Thank you, ma'am.
I appreciate Chairman Lofgren and the Chairman, Mr.
Conyers, and Ranking Member King, Members of the Subcommittee.
I appreciate you holding this hearing.
You know, protecting the privacy of American citizens is
vitally important to me and America. As the Ranking Member of
the Social Security Subcommittee, we've spent years studying
that issue. There are certain guiding principles we must
respect in order to craft a truly effective, secure, reliable,
Electronic Employment Verification System.
These are: one, prohibit unlawful employment; two, protect
workers; three, partner with employers; four, reduce the risk
of identity theft; and, finally, protect Social Security.
I have a bipartisan bill, H.R. 5515, the New Employment
Verification Act, or NEVA, with Congresswoman Giffords. First,
NEVA prohibits unlawful employment by eliminating the paper-
based and error-prone I-9 process. The employee's name, Social
Security number, and date of birth instantly would be checked
against the Social Security database.
Second, NEVA protects workers. In my bill, Social Security
verifies American citizens, and DHS verifies legal immigrants.
The Social Security Administration, not DHS, has the
responsibility to track the earnings history of every worker to
ensure they receive the correct amount of disability or
retirement benefits. Americans trust the Social Security
Administration, and they believe the agency does a good job. I
An agency responsible for tracking terrorists and securing
our border should not be keeping tabs on when and where
Americans work. Yet, according to their own privacy documents
from February 2008, the Department of Homeland Security is
building databases and maintaining data on the work history of
American citizens and American employers.
Over 2 weeks ago, Social Security Subcommittee Chairman
Mike McNulty and I sent a letter to Secretary Chertoff asking
about privacy protections provided by Homeland Security in its
I ask that a copy of this be inserted in the record.
Ms. Lofgren. Without objection, it will be entered.
[The information referred to follows:]
Mr. Johnson. Thank you.
This letter resulted from an incident that occurred during
a May Subcommittee hearing where the Customs and Immigration
Service provided information to Representative Shuler, who then
shared with each Member of our Subcommittee through our staff,
a copy of employers in our congressional districts that are
registered to participate in E-Verify. The questions we posed
to Secretary Chertoff are important and must be answered before
E-Verify is extended. We have got a privacy problem here, and
we ought to do something about it, in my view.
Third, NEVA makes employers part of the solution. The
critical difference between E-Verify and NEVA is that employers
would transmit their newly hired employee's information through
a system 90 percent of them already use to help States track
down deadbeat dads. Only 1 percent of employers today use E-
NEVA also provides liability protection to employers who
unknowingly hire illegal workers through a subcontractor and
provides an exemption for penalties for initial good-faith
Fourth, NEVA will reduce identity theft. As the highly
publicized raids in the meat-packing industry have illustrated,
we know a simple check of names, Social Security number, and
date of birth will still be subject to document fraud and
identity theft. To address this problem, NEVA allows employers
to voluntarily take the additional step of using Government-
certified private-sector experts to authenticate the identity
of a new employee and harden the identity with a biometric.
Finally, NEVA would protect Social Security by requiring
the Congress to provide the Social Security Administration with
advanced funding to get the job done.
Social Security is integral to employment verification, and
I will be working to ensure it is not relegated to the status
of an afterthought. After years of inaction by the Congress,
the American people are fed up with broken laws and broken
promises, and I think it is time for a new direction.
Thank you. I look forward to your questions.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Honorable Sam Johnson, a Representative in
Congress from the State of Texas
Chairman Lofgren, Ranking Member King, and Members of the
Subcommittee, thank you for holding this hearing on the crucial
employee verification component of the immigration reform debate.
Protecting the privacy of American citizens is a great concern to me.
Over the last several years, the Committee on Ways and Means and
the Ways and Means Subcommittee on Social Security, on which I serve as
Ranking Member, have held a number of hearings on employment
verification and its impact on citizens and workers. After years of
studying this issue, I believe there are certain guiding principles
that we must respect in order to craft a truly effective, secure,
reliable, electronic employment verification system. These are: 1)
prohibit unlawful employment, 2) protect workers, 3) partner with
employers, 4) reduce the risk of identity theft, and 5) protect Social
This past February I, along with several of my Republican Social
Security Subcommittee colleagues, introduced H.R. 5515, the New
Employee Verification Act, or NEVA which now has bipartisan support,
including my distinguished colleague Congresswoman Giffords from
Arizona. NEVA represents an innovative and comprehensive approach to
worksite enforcement and I would like to take a few minutes to explain
how NEVA represents those key principles.
First, NEVA prohibits unlawful employment by eliminating the paper-
based and error-prone I-9 process with an electronic verification
system that builds upon the lessons learned from E-Verify. The
employee's name, Social Security number and date of birth would be
instantaneously checked against the Social Security database in much
the same way that E-Verify does currently. The critical difference is
the entry of data using a platform already used by employers which I
will discuss shortly.
Second, NEVA protects workers by ensuring that no U.S. citizen
seeks permission to work from a federal law enforcement agency. The
Social Security Administration (SSA) has always had the responsibility
to track the earnings history of every worker to ensure they receive
the correct amount of disability or retirement benefits. Americans
trust the Social Security Administration and they believe the agency
does a good job--I do too. I believe that these earnings should be
accurate and a mandatory electronic employee verification system would
help increase accuracy sooner and maintain accuracy through workers'
An agency responsible for tracking terrorists and securing our
borders should not be keeping tabs on when and where U.S. citizens
work. Yet the Department of Homeland Security (DHS) is building
databases and maintaining data \1\ on the work history of American
citizens and American employers.
\1\ U.S. Department of Homeland Security, ``Privacy Impact
Assessment for the Verification Information System Supporting
Verification Programs.'' February 22, 2008. Pages 2, 3.
Over two weeks ago, Social Security Subcommittee Chairman Mike
McNulty and I sent a letter to Secretary Chertoff asking about privacy
protections provided by Homeland Security in its E-Verify system. I ask
that a copy of that letter be inserted in the record. This letter
resulted from an incident that occurred during a May Subcommittee
hearing where the Customs and Immigration Service provided to
Representative Heath Shuler (D-NC), who then shared with each member of
our Subcommittee, the employers in our Congressional Districts that are
registered to participate in E-Verify. The questions we posed to
Secretary Chertoff are important and must be answered before this E-
Verify program is extended when it expires in November.
NEVA puts the Social Security Administration in charge of employee
verification because it is their fundamental job to track earnings and
because the vast majority of those who work in this country are
American citizens who should not be tracked by DHS. Under NEVA, Social
Security verifies U.S. citizens and the DHS verifies non-citizens.
Also, DHS maintains its essential role in worksite enforcement,
bolstered by increased penalties for those employers who do not comply.
To further protect workers, NEVA also provides extensive
administration and judicial reviews so workers can challenge any
decision they believe is in error, creates penalties for unauthorized
use of information, and establishes an advisory panel of public and
private experts to ensure the highest degree of efficiency, accuracy,
Third, NEVA makes employers part of the solution. NEVA partners
with employers and creates an easy-to-use system. Employers would
transmit their newly hired employee's information through a system 90
percent of employers already use to help states track down dead beat
dads, each State's new hire reporting system. The information would be
routed to the SSA and would provide nearly instantaneous work
authorization. NEVA also provides liability protection to employers who
unknowingly hire illegal workers through a subcontractor and provides
an exemption from penalties for an initial good faith violation.
Fourth, NEVA will reduce identity theft. As the highly publicized
raids in the meat packing industry have illustrated, we know that a
simple check of name, number of date of birth would still be subject to
document fraud and identity theft.
NEVA allows employers to voluntarily take the additional step of
using government certified private sector experts to authenticate the
identity of the new employee and to then harden the identity to a
biometric, such as a finger print. After the employer verifies that the
same person who went through the screening is the same person who shows
up to work, the employee may then ask that their personal information
Finally, NEVA would protect Social Security by requiring that
employers use the system for newly hired employees only. From what we
know about the illegal immigrant population, where they work, and the
annual rate of new hires in key industries, this will minimize the
additional burden placed upon an already strained agency, while
preventing unlawful employment. Also, NEVA would require the Congress
to provide the SSA with the financial resources needed before the
agency can perform employment verification.
Proponents of a mandatory E-Verify system rarely acknowledge the
need to properly fund this expanded mission of the Social Security
Administration. In fact, the DHS has not even paid the SSA for their
cost of E-Verify for two recent years of their efforts for that pilot
program. The SSA is integral to employment verification and I will be
working to ensure that it is not relegated to the status of an
Today, thousands of immigrants enter the country seeking the life a
job in the country has to offer, but too many do so by breaking the
law. And we cannot enforce the law with the broken enforcement system
we currently have. After years of inaction by the Congress, the
American people are fed up with broken laws and broken promises. It is
time for a new direction.
I am confident, after looking at this issue a great deal during my
time in Congress, I and my bipartisan cosponsors, have created a
workable solution to a critical component of immigration reform. The
large and diverse group of employers who agree with us include: the
National Association of Manufacturers; the Society for Human Resource
Management; the National Association of Home Builders; and the National
Federation of Independent Business.
Thank you and I look forward to answering any questions you may
Ms. Lofgren. Thank you very much, Congressman Johnson, for
your testimony and your leadership.
Now we will turn to our final panelist, Congresswoman
It is a pleasure to have you here.
TESTIMONY OF THE HONORABLE GABRIELLE GIFFORDS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ARIZONA
Ms. Giffords. Good morning, Chairwoman Lofgren.
Good morning, Ranking Member King, and Chairman Conyers. It
is an honor to be here testifying before your Committee today.
I believe the reason why I was selected is that I come from
Tucson, Arizona, the Eighth Congressional District, where we
have about a 114-mile part of the 2,000 U.S.-Mexico border.
To give you some context about how difficult illegal
immigration is in my district, last year, the Tucson Sector of
the Border Patrol apprehended 387,000 illegal immigrants in
just 1 year. So, clearly, when you look at approximately 1,000
immigrants a day, we are shouldering the burden of this illegal
And in addition to knowing a lot about border security, my
constituents have a broad understanding of the immigration
crisis as a whole. They know, and I agree, that an enforcement-
only approach to immigration will not fix our problem. This
Congress has to improve our visa programs; upgrade and expand
the Federal Government's capacity to verify documents; give
employers the tools they need to check the citizenship of
employees; and take a thoughtful look at our economy and the
real workforce need that our businesses have.
As you know, the Arizona legislature in January chose to
take action in response to the Federal Government's inaction to
fix our system, and we became the first State to mandate that
all Arizonans use the E-Verify system.
As the first State, I believe that the Arizona experience
is of great interest here in Washington. I believe that the
Arizona experience should inform the ongoing debate about
employment verification and whether the current E-Verify
program administered through DHS should be extended and/or
Some of the businesses that have signed up have reported a
variety of challenges and problems using E-Verify. They are
finding it complicated, unreliable, and burdensome. They are
having great difficulty getting answers from DHS to their
problems about the system.
I have heard from employers, employees, and privacy rights
advocates who are very vocal that nationally mandating E-Verify
as it is would be potentially disastrous for our Nation. They
are all experiencing the downfalls of using an inaccurate
database with inadequate privacy protections.
Between October of 2006 and March 2007, roughly 3,000
foreign-born U.S. citizens were initially flagged as not work-
authorized. These errors have specifically impacted Arizona
workers who have their ability to work wrongfully impacted. The
experience of Arizona employers and employees makes it clear
that we can do better and that action is needed.
And Madam Chairman, I would like to enter into the record a
document of the Immigration Policy Center about E-Verify for
Arizona, because I think it would be important for Members to
Ms. Lofgren. Without objection, that will be made a part of
[The information referred to follows:]
Ms. Giffords. Thank you.
Having reflected on what is happening in my State of
Arizona and the challenges that we have seen, I think that we
need a system that incorporates three primary elements: one,
explicit preemption of State laws such as the one in Arizona so
that the business community has an even playing field across
the country; two, real privacy protections for U.S. citizens
and for legal workers; and, three, liability protections for
employers who play by the rules.
That is the reason why I have joined with Ranking Member
Johnson with H.R. 5515, the New Employee Verification Act, or
NEVA, because it provides a simplified, effective, and balanced
alternative to the E-Verify system. NEVA is carefully crafted
to ensure a legal workforce, safeguard workers' identities, and
protect Social Security.
It is also realistic, Madam Chair.
Under NEVA, U.S. Citizens would be verified through the
Social Security database and not funneled through DHS, as
currently occurs under E-Verify. Only noncitizens would be
verified through DHS.
This bill protects the Social Security Administration's
privacy mission and trust funds by authorizing employment
verification only through funds appropriated in advance. And as
we testified before in the Social Security Subcommittee, that
is critical. By making Social Security the agency with primary
responsibility, it acknowledges that the Social Security
database is crucial to a functioning system. We do not take the
risk that funds intended for Social Security get bottlenecked
in another agency.
NEVA fights identity theft by allowing the use of private-
sector contractors certified by the Federal Government to
authenticate the identity of employees. And this is a defining
characteristic of the legislation that makes it functional and
unique when compared to other employment verification
NEVA has been widely well received in Arizona. The Chamber
and CEO/president of the Tucson Metropolitan Chamber, the
Sierra Vista Area Chamber of Commerce, the Marana Chamber of
Commerce, all the business chambers that actually have to deal
currently with the E-verify system are turning to NEVA as a
very good alternative.
As this Subcommittee considers the current employee
verification proposals, please take the Arizona experience to
heart. Southern Arizonans, just like all Americans, expect
their elected officials to find solid sensible solutions to the
greatest challenges of our day, and we know that is our broken
immigration system. The fact that this system has become
polarized, radioactive, divisive, and ugly is evidence that our
Congress has to act responsibility.
Only by developing a realistic long-term solution for
undocumented populations living in our United States with a
targeted, effective enforcement of the realistic laws will we
restore legality and legitimacy to our immigration system.
Madam Chair, just in closing, if Congress does nothing or
simply extends the E-Verify system without much needed reform,
such as State preemption or employee protections, we will have
Thank you for this opportunity, allowing me to testify
before all of you today.
[The prepared statement of Ms. Giffords follows:]
Prepared Statement of the Honorable Gabrielle Giffords, a
Representative in Congress from the State of Arizona
Chairwoman Lofgren, Ranking Member King, and members of this
Subcommittee, thank you for allowing me to testify today. It is an
honor to be given this opportunity to talk an issue of deep concern to
Southern Arizona--employee verification.
I am from Tucson, a community that is directly impacted by the
effects of illegal immigration. My district includes about a 114 mile
section of the 2,000 mile U.S.-Mexico border. It includes the ``Tucson
Sector,'' which is the most heavily trafficked sector of the border in
the country. To give you some context, last year, 387 thousand illegal
immigrants were apprehended in Arizona. That's approximately 1,000
illegal immigrants every single day.
In addition to knowing a lot about border security, my constituents
have a broad understanding of the immigration crisis as a whole. They
know, and I agree, that an enforcement-only approach will not fix the
problem. We must improve our visa programs, upgrade and expand the
federal government's capacity to verify documents, give employers the
tools they need to check the citizenship of employees, and take a
thoughtful look at our economy and workforce needs.
As you know, the Arizona legislature has chosen to take action in
response to the federal government's failure to fix the system. As the
members of this Committee know, Arizona was the first state to mandate
that all Arizonan employers use of E-Verify.
As the first state, our experience in Arizona is of great interest
here in Washington, D.C. I believe the Arizona experience should inform
the on-going debate about employment verification and whether the
current E-Verify program administered through the Department of
Homeland Security should be extended and/or mandated nationwide.
Some of the businesses that have signed up have reported a variety
of challenges with using E-Verify. They are finding it complicated,
unreliable, and burdensome. They are also having difficulty getting
answers from DHS to their questions about the system.
I have heard from employers, employees and civil rights advocates
who are very vocal that nationally mandating E-Verify AS-IS for ALL
employees would be disastrous.
They are all experiencing the downfalls of using an inaccurate
database with inadequate privacy protections. Between October 2006 and
March 2007, roughly 3,000 foreign-born U.S. citizens were initially
flagged as not-work-authorized. These errors have specifically impacted
Arizona workers who have had their ability to work wrongly impacted.
The experience of Arizona employers and employees makes it clear
that we can do better and that action is needed.
Having reflected on what is happening in Arizona and the challenges
we have seen, I think we need a system that includes these three key
1. Explicitly pre-emption of state laws such as the one in
2. Privacy protections for U.S. citizens and legal workers;
3. Liability protections for employers who play by the rules;
That is why I am a cosponsor of legislation introduced by Ranking
Member Sam Johnson. H.R. 5515, the New Employee Verification Act, or
NEVA provides a simplified, effective and balanced alternative to E-
NEVA is carefully crafted to ensure a legal workforce, safeguard
workers' identities, and protect social security. It is also realistic.
Under NEVA, U.S. citizens would be verified through the Social
Security database and not funneled through DHS as currently occurs
under E-Verify. Only non-citizens would be verified through DHS.
This bill protects the Social Security Administration's primary
mission and trust funds by authorizing employment verification only
through funds appropriated in advance. By making SSA the agency with
primary responsibility, it acknowledges that the social security
database is crucial to a functioning system. We do not take the risk
that funds intended for SSA get bottle-necked in another agency.
NEVA also fights identity theft by allowing the use of private
sector contractors, certified by the federal government, to
authenticate the identity of employees. This is a defining
characteristic of this legislation that makes it functional and unique
compared to other employment verification legislation.
NEVA has been received well-received in Arizona, largely because it
takes a responsible approach. For example, the following local business
organizations and CEO's have endorsed NEVA: the Tucson Metropolitan
Chamber of Commerce, the Greater Sierra Vista Area Chamber of Commerce,
the Marana Chamber of Commerce, Stanley P. Abrams, President of The
Stanley Group, Mark Clark, President & CEO of CODAC Behavioral Health
Services, Inc., and Dr. Peter Likins, Chair of the Southern Arizona
Town Hall, and Retired President of the University of Arizona.
As this Subcommittee considers the current employee verification
proposals, please take the Arizona experience and lessons to heart.
Southern Arizonans, like most Americans, expect their elected
officials to tackle not just the easy issues--but the tough ones. The
fact that immigration has become polarized, radioactive, divisive, and
ugly is evidence, in fact, that Congress must responsibly confront it.
Our broken immigration system is simply not an insurmountable
problem. However, if Congress does nothing or simply extends E-Verify
without much-needed reform, we will have failed.
Only through a realistic, long-term solution for the undocumented
population living in the U.S., and targeted, effective enforcement of
realistic laws will we restore legality and legitimacy to our
Thank you for the opportunity to testify today and for considering
NEVA as an important alternative to the current and burdensome employee
Ms. Lofgren. Thank you very much, Congresswoman Giffords.
And thanks to all of you for your testimony.
At this time, we will move to questions, if there are any,
for the Members.
I would turn first to Chairman Conyers for his questions.
Chairman Conyers. Thank you, Madam Chairman.
Well, Mr. Shuler, when the gentle lady takes a shot at your
bill, I ought to let you say something in your own defense
before the firing squad opens up on you. What would your last
words be? We'll remember them in your memoriam.
Mr. Shuler. Absolutely.
It is a proven system that has been in place for quite some
time. And to put a new system into place that hasn't been
vetted and gone through the process--and as we have all stated,
over the last 14, 16 years, the system has continued to upgrade
its system. And saying that, why recreate, why spend millions
and millions of dollars to create something that is already
working effectively? And if you look at some of the people who
have problems with it, it's the people who have been exploiting
illegal immigrants for quite some time.
Chairman Conyers. And we are not going to let him get away
with the notion that they have got an effective Social Security
system. They have got a 4 percent error rate that translates
into 17 million errors. What about that?
Mr. Shuler. Every week in my office I have people who
become eligible for Social Security, and we have the problems.
And so fixing it earlier in life is the solution. And we have
to make sure that we do have the funding in Social Security in
order to fix some of those problems. And using E-Verify will
help fix some of those problems before they come of age for
Chairman Conyers. Have you ever tried to call a Social
Security office in your life?
Mr. Shuler. Yes, we have a back line now that we can
actually get through that is working pretty well.
Chairman Conyers. You do?
Mr. Shuler. I'll let you know what that is, yeah.
Chairman Conyers. Please. I will see you immediately after
the hearing. Lawyers can't even get through, much less poor
Mr. Shuler. The error rate on E-Verify is actually 0.5
Chairman Conyers. Well, Sam Johnson, we've been waiting to
get you before this Committee for many years. What do you have
Mr. Johnson. Well, I think the error rate is misstated.
But you know, the thing is, Social Security errors are
caused by, in most cases, ladies getting married and forgetting
to change their names. And, really, it is important that they
fix that in the Social Security system for retirement purposes,
and notwithstanding immigration. But I think that can happen
regardless of what kind of system you have in place as soon as
the people become aware of it.
Addressing the Social Security office problem, you know,
the problem exists in a lot of veins, not just immigration. We
are working that problem and trying to get more law judges in
place so we can address that part of the problem, and it seems
to be working. And you know, I spoke with you earlier about a
hearing on those administrative law judges so we could get to
the bottom of it maybe a little quicker. It is a real problem,
and that is stuffing up the Social Security offices.
I'll bet we could get you a private number, too.
Ms. Lofgren. I think all Members want one.
Chairman Conyers. How can we protect Americans from--what
happens when there is a wrongful denial of work authorization?
You know, it averages out to 24,000 workers in my, in every
district being denied because of false negatives.
And then we come to our friendly Department of Justice, the
Civil Rights Division. They have got maybe 24 lawyers trying to
check a workforce of 163 million people. Why doesn't your
Judiciary Committee get on the ball and get a lot more lawyers
here to handle this? They can't police that kind of
And, finally, this is it for me. What about those
exploitative employers that are going to misuse this system,
submitting the names of union organizers, for example, or
people who look foreign, whatever that might mean, which would
be a tempting way to mess up what would otherwise be a good
Mr. Johnson. Well, there is an appeals process in Social
Security that works far better than the one that you are
talking about in Justice. And I feel like that we need to
address the Social Security part of the equation so that it is
safe and secure for eternity.
You know, we do have a problem with that fund. And, right
now, the agreement with Homeland Security was to pay Social
Security for the first 2 years, and they haven't yet done that.
I think funding is terribly important, and it needs to be
focused on getting Social Security funds so they can make it
Ms. Giffords. Mr. Chairman, the database issues have the
greatest problem with naturalized U.S. citizens, and there is a
problem of about 10 percent that is being reported; people that
are being told that they are not authorized to work, but they
are legally authorized to work. According to the Census Bureau,
in Arizona, there is about 274,000 naturalized citizens in my
State, which of course means that's about 27,000 U.S. citizens
that are initially flagged just, again, in the home State of
Arizona that are not allowed to work.
What we are seeing in Arizona is that this law, although it
is framed as a purely employment-driven verification system, is
now carrying into all virtually other aspects of life. Our
media outlets are reporting increased racial profiling,
discrimination against lawfully present immigrants. So this E-
Verify system has taken on a life of its own, and that is why I
have joined with Congressman Johnson for an alternative that
goes with a database that we currently have that currently
works, that would not subject U.S. citizens to the Department
of Homeland Security. It would be faster. It would be more
reliable, and it would be financially accountable as well.
Mr. Johnson. And the I-9 system which we now use would be
junked. And you know, people forget to check boxes, so they are
stalled out at the start.
Ms. Giffords. And one other thing, too, Mr. Chairman.
The E-Verify system requires everyone apply through the
Internet. Well, in my district, rural Arizona, there are a lot
of people that don't have Internet access, that don't have the
ability to do that, so I really believe----
Ms. Lofgren. We hope to change that.
Ms. Giffords. Yes, and we are getting there. But currently,
I mean, this is the reality of the employment climate in our
Ms. Lofgren. Mr. Conyers' time has expired, but I see Mr.
Shuler wants to add something, and then we'll turn to the
Mr. Shuler. I just want to add that the error rate in the
database is much different than the error rate on E-Verify. It
is 0.5 percent on E-Verify, not 5 percent or 4 percent or some
other number. It is 0.5 percent.
Ms. Lofgren. We turn now to the Ranking Member, Mr. King,
for his questions.
Mr. King. Thank you, Madam Chairman.
And I do want to thank the witnesses here.
First, I would just go down through a list of things that
came across my mind. The question of new hires versus current
employees, and I do believe that it is inappropriate to ask an
employer to comply with a law and discourage the hiring of
illegals if you don't allow them to use E-Verify on current
The only question back then was, did we have the ability
with the database to process that many job applicants or that
many workers? I think today it is clear that database will
handle, as the testimony from Mr. Shuler said, 240,000 within
that period of time, multiple times our workforce. So that I
think is answered here today in the testimony, and I want to
point that out.
The second thing, the question the Chairman of the full
Committee asked at the beginning, would it cost $17 billion in
lost tax revenue? I would submit that there are $60 billion in
wages that are transferred into places outside the United
States from workers in the United States, and that $60 billion
that goes out of the country, a significant portion of it and
no one really knows how much, is wages from illegal workers. So
if it is only half, then we've got $30 billion to work with
there. If they are right on the $17 billion, we are going to
have a net savings regardless that will hold this money in the
United States, and it will go to legal workers. So I want to
make that point.
Another point is that we have seem to have two choices
here. One of them is to use E-Verify to verify new hires; and
the other one is to make it mandatory under Mr. Johnson's bill
to use new hires. I'd submit we ought to let it be voluntary,
and then let the IRS decide whether you get to deduct your
wages and benefits or not if you are hiring illegals and give a
safe harbor for the utilization of E-Verify. That is other the
alternative. Let it be voluntary, and then let the incentive be
in place when the IRS steps in.
That's a number of things that come across my mind, but it
seems to me, as I listen to this testimony, that a lot of us
are talking about the same thing. And I am looking at a pie
chart here that shows 84 percent of E-Verify goes off to the
Social Security database and another 9 percent goes to USCIS's
database and DHS within that.
I would just ask the question of Representative Giffords,
what is the distinction between an E-Verify query of Social
Security Administration and, under the NEVA bill, a query that
would go to the same database? Why do we care? If we are
cleaning up the Social Security database by using E-Verify, as
Mr. Shuler testified, why wouldn't that be a good way to get
that done early?
Ms. Giffords. Ranking Member King, we have the bill's
sponsor here to answer any more detailed questions. But, there
is a fundamental difference for U.S. citizens being driven
through a security-type database, Department of Homeland
Our system, the new Employee Verification Act, would
require U.S. citizens to go through the current existing
database that 95 percent of all employers use, which are the
States' deadbeat dad database. The system is already in effect.
It works. I think it is preferable to use that database for
U.S. citizens rather than requiring all U.S. Citizens to go
through the Department of Homeland Security.
Mr. King. Yeah, but I understand we are going through the
Social Security database regardless of whether it is E-Verify
or whether it is under NEVA.
Is that correct, Mr. Johnson?
Mr. Johnson. Right.
Mr. King. And I thank you for that.
And I will make another quick point. And that is that,
Social Security, I have had some frustration with them. There
is no match. Letters don't seem to come for people who are
sending off, hiring people that have Social Security numbers
that aren't valid. When they do, they seem to be in the most
egregious cases. We have at least 11,000 people in America that
are working for Government using no-match Social Security
I want to get the Department of Homeland Security working
together with the IRS, working together with the Social
Security Administration. Can we get our agencies to work
together, to team up like a company would instead of the right
hand doesn't know what the left hand is doing, Mr. Johnson.
Mr. Johnson. I would hope so, yes.
Could I ask to be excused for another meeting that I
Ms. Lofgren. Of course, Mr. Johnson.
Mr. King. It might just be the note that my time has
expired, Madam Chairman.
And I especially thank all the witnesses here today, and my
good friends on the panel----
Mr. Johnson. I have an able representative right here.
Ms. Lofgren. We understand, and we appreciate the time you
were able to spend with us this morning.
The gentleman's time has expired.
Mr. King. Thank you, Madam Chair, I yield back----
Ms. Lofgren. We will turn now to----
Ms. Giffords. Madam Chair, can I clarify something for the
Ms. Lofgren. Yes.
Ms. Giffords. The NEVA legislation would have U.S. Citizens
go through the Social Security database first. Now, if they are
flagged, at that point, they would kick to DHS. It wouldn't be
that everyone would start with the DHS database.
Ms. Lofgren. Thank you for that clarification.
We will turn now to our colleague Luis Gutierrez for his
Mr. Gutierrez. Thank you very much.
Well, let me say, so we are going to use the Social
Security database. And the Social Security database, as
referenced by Chairman Conyers, has a 4.1 percent error rate.
Now, DHS--and only DHS says this about themselves, that they
have virtually none.
So if I understand this right--and since our bill is very
similar, the STRIVE Act is very similar, in that we want verify
people through Social Security, one says they don't have any
error rate. I don't know of a governmental institution that
doesn't have an error rate. But we are soon to hear from
Homeland Security that they virtually have no error rate in all
of their files.
Now, it takes them forever to verify a name to help someone
become a permanent resident or citizen, including years to
verify a simple name check with the FBI, but they have no error
rate, and they can quickly tell us who all these employees are.
I am just amazed to hear somebody that we know who is
lawfully in the United States, paying and petitioning the
Government, cannot get their name checked for years, and yet
they can get an employment check as quickly as 5 seconds. I
just find that a little incongruent, one thing with the other.
But having said that, let's just suppose it's a 1 percent
error rate--and a 4 percent. I just did some numbers here. I
didn't have a calculator, so I could be a little wrong. If
there are 63 million queries a year, and 4 percent of that,
right--and currently we have 66,000 under the E-Verify. That is
how many employers. And we are going to go to 7 million
employers. So we are going to jump from one thing to the other
in 4 years. Then they want us to look at this and to say that
each of us, if I did this right--I missed a piece of paper
here--so 4 million, 2.8, so that is 6.8 million people.
If you took the total number, there are about 165 million
employees in the United States, and at 4 percent, 4.1--and I am
adding another percent for the people who don't make mistakes,
only going to give them a 1 percent error rate--that means, as
we go through the next 4 years, nearly 7 million people will
have to visit, call, visit their Congressman to fix the 4
percent error rate, which Social Security--we asked Social
Security, what is your error rate? They said 4.1.
I mean, think about that one moment. Wouldn't it be wiser
to phase this in and take infrastructure 1 year and then verify
it, come back, meet with Chairwoman Lofgren, and come back and
have the Chairwoman have the information. Don't you think it
would be better to phase it in?
Mr. Shuler. And the SAVE Act actually does that. And let me
repeat my opening statement. In the first 2 months of this
year, 7.8 million people were newly hired at a new location,
new job. One million of those went through E-Verify. And they
went through a testing overload, and they were able to handle
240 million queries per year.
So it is a phased-in program over 4 years, the first year
being Government employees, which all of our staffers, all of
us on the Hill, all of our Government employees----
Mr. Gutierrez. I understand that. But just so that we
understand, I know you do it in 4 years, but shouldn't we have
accuracy? Shouldn't we come back and make sure that--I am just
trying to share with you. Couldn't we have accuracy?
And that is, we roll it out to certain industries. We all
know we are going to get to everybody, so we take on new hires,
we bring them into the system. We come back and we verify that
these industries and these employers have an accuracy level
of--and then we roll it out to another piece of industry.
I am with you, Shuler, on much of this. It is just that if
you roll it out and you jam it, there is going to be a lot of
people. It is now, in my office alone, after immigration, you
know what we have got? Social Security. People are waiting
years, American citizens are waiting years, for when they apply
for Social Security benefits and disability benefits, for
someone to make the adjustment, years. And now we are going to
throw on the Social Security system 165 million people who are
going to be queried over the next 4 years. That is a mammoth
And, secondly, let me just share, because we can work--if
you look at the STRIVE Act, we talk about a biometric, readable
Social Security card that is tamper-proof. So we are into
making sure that our system is safe. It is just how we do it
and how we roll it out and whether or not we shouldn't do it a
la Sensenbrenner, which you do, which is enforcement only, or
do we do it in a comprehensive manner. That is really the
debate we are going to have.
And I look forward to working with my friend, Mr. Shuler,
and my good friend, Congresswoman Giffords.
Ms. Lofgren. The gentleman's time has expired. I think
Representative Giffords wants to say just a quick thing before
we go to Mr. Gallegly.
Ms. Giffords. Thank you, Madam Chair.
I just wanted to let you know that our legislation, the
NEVA bill, requires that Social Security and DHS certifies the
accuracy of the system in advance of the full implementation.
It also requires that the GAO evaluate the accuracy, the
efficiency, and the impact of electronic verification before it
is rolled out.
So that is incorporated into our bill, because we are
concerned as well. I mean, we don't talk a lot about it, but in
Arizona we don't have even the fuller number of employers that
are on the system yet. So rolling this out on a large scale
could be devastating
Ms. Lofgren. Thank you.
We turn now to Mr. Gallegly for his questions.
Mr. Gallegly. Thank you, Madam Chairman.
I would like to take a step back just for a second, if we
can. I know we are here on E-Verify, but I think we need to
take a step back and really look at the magnitude of what the
problem really is.
Currently, we have all been reading the statistics in the
last few days about what the unemployment rate is in the United
States. We are really concerned. It is up to 5.5 percent. That
translates, according to my math, somewhere around plus or
minus 8 million people that are unemployed in the United
States. Are we pretty much in agreement on that?
Ms. Giffords, are you aware of how many people are working
in the United States today with an invalid Social Security
Ms. Giffords. Mr. Gallegly, I am not. I am not sure, no.
Mr. Gallegly. Well, I am not either, but I know that 3
years ago it probably wasn't as bad then as it is today. That
is a pretty safe guess, I think. Three years ago, it was 10.5
Now, if we figure, from a simple math situation, if there
is a 5 percent error in the way Social Security deals with
their numbers, if you take 5 percent off of the 10.5 million,
we could say probably safely that there are 10 million people
working in this country with an invalid Social Security number.
And that is what we are dealing with here, is people--the
purpose of E-Verify or your program is to see that the people
that are working in this country have a legal right to be
working in this country.
So, I mean, with simple math, I would say with the people
that are illegally working in this country, we have 2 million
people working in this country above what it would take to wipe
out all of the unemployment. Maybe that is not a perfect
analogy, but it is a very serious issue when you have over 10
million people working in a country that have no right to work
I would like to hear your response to that.
Ms. Giffords. Mr. Gallegly, you weren't here for my opening
Mr. Gallegly. I apologize for that.
Ms. Giffords [continuing]. When I talked about southern
Arizona being the most heavily impacted district. The Board
Patrol Tucson sector apprehended 388,000 people last year.
Mr. Gallegly. Wasn't enough.
Ms. Giffords. My district is the most heavily trafficked
area along the 2,000 miles. So we understand that in southern
Arizona. We deal directly with the impacts, through crime,
through violence, through homicides. We are the most heavily
trafficked corridor in terms of marijuana. So we understand it
in southern Arizona.
But southern Arizona is also a microcosm for the country in
terms our economy. My district has a very heavy agricultural
component, over 9,000 square miles. Willcox, Benson, parts of
that State have a real demand when it comes to finding people
that are willing to go and work in the fields and pull in
crops. Then we have a construction industry that is a little
depressed right now, but Arizona is the second fastest growing
in the State--booming construction industry. I used to run my
family's tire and automotive company. I know how difficult it
is to find a tire tech that wants to work for $7 or $8 in 115-
So we have some real employment challenges of getting our
folks to want to work. Kids these days don't have that desire
to get out there, like we used to do, frankly.
We have a microcosm of a lot of things going on----
Mr. Gallegly. Reclaiming my time, I really respect and
appreciate what the gentlelady is saying, but I might remind
her that I have one of the largest agricultural districts in
the United States. I have probably, on a dollar basis,
certainly in the top four or five in the United States, as far
as dollar volume. We rotate three crops a year in California,
row crops. Strawberry capital of the world--Calavo, Sunkist. I
can go on and on. So I am pretty familiar with how the
agricultural business works.
But I am also very familiar with how the rule of law should
work, and that is what we are dealing with here. If we are
going to talk about needs, unmet domestic needs for labor, that
is a separate issue, and that should be addressed accordingly.
If we have an unmet domestic need, that is what our immigration
policies have been about since the beginning of time, certainly
since the turn of the previous century. So let's not mix apples
Mr. Shuler, I appreciate all the hard work that you have
put into this issue. It is my understanding that we have
currently over 64,000 employers participating in E-Verify. Do
you believe the system can handle the additional capacity now,
the way we are set up?
Mr. Shuler. Well, the Secretary obviously has come out to
say that the system is prepared for a national rollout. We are
seeing that from several States, Arizona being one, Mississippi
actually implementing that. Legislation that just went into the
State of North Carolina was just dropped. I think we are going
to continue to see more and more States taking a front-line
approach, and we have to make sure that the system is prepared.
We are seeing that it is prepared, and we will hear
testimony later in this hearing that talks about how prepared
that they are. This has been a system that has been vetted well
over a decade. And the error rate has certainly decreased.
Being able to query the data quicker is obviously being
invented. And the number of visits that will have to go to the
Social Security Administration because of other databases that
they are actually going to be pulling the information from is
going to be less.
So I feel very strong about it. I have spent a lot of time,
as you and others have, of looking at how E-Verify has really,
from its conception to now, how strong and accurate the system
Mr. Gallegly. Thank you for your leadership.
I yield back.
Ms. Lofgren. Thank you. The gentleman yields back.
I recognize now the gentlelady from Texas, Ms. Jackson Lee,
for 5 minutes.
Ms. Jackson Lee. Thank you, Madam Chair.
Let me say to the witnesses, first, I appreciate your
presence here today. And knowing the mindset of at least the
two remaining Members on the panel, I agree that we have to do
something as it relates to immigration reform, and I know that
enforcement is very important.
I have spoken to the distinguished gentleman from North
Carolina. He knows of my interest in ensuring that those who
are here undocumented have the ability, who are now working,
paying taxes, to pay more money, either by way of fines, to
legalize their status or to access legalization--that is a
better terminology--but also to pay for benefits, whether it
the utilization of the public hospital system, the utilization
of an education system, the utilization of the highways and
byways that we use.
And I can assure you my constituents in Texas want to do
that. They want to be in a system of legalization that allows
them to become additionally contributing members of this
So they always say, expose your cards. And my cards are
that I believe in the comprehensive approach--albeit I would
like to call upon another name, maybe the ``Americanization''
approach--for people who are here, who want to be part.
And I must say to the Chairwoman, let me thank her for her
consistent journey toward that, and the Chairman of the full
Committee, as we worked together in the minority reaching the
But I do want to applaud you for finding some aspect that
needs to be addressed, and I would like to approach it in that
Before I do so, let me just quickly say, in the
verification effort, the Westat report of 2007 made a number of
points that I think is important to put on the record: that, in
this E-verification, we have had employers who are not trained
employees. We have had employers who have used the process for
pre-assessing or pre-consideration of employees, so they have
this used this for the--they have used this, if you will, for
the idea of screening their employees.
We have 22 percent of employees reported that they
restricted work assignments while employers were contesting
their particular predicament. And then there are employers
didn't fire these employees, and there were also those who
didn't explain to the employees.
So we know we have some weaknesses in this process.
Congresswoman Giffords, what I like about what you are
proposing is the idea of separating U.S. citizens from those
who are immigrants. They go under DHS, is that correct?
Ms. Giffords. That is correct.
Ms. Jackson Lee. And citizens have another process.
I heard my colleagues' questions. So let me ask you, what
are the privacy protections that we would have in the system
that you are purporting in your legislation?
Ms. Giffords. Well, there are quite a few privacy
protections, and the legislation is quite a bit different, of
course, from the E-Verify system.
First of all, it creates an alternate voluntary secure
electronic verification system to identify employees' identity
and eligibility through a lock, basically, once it is verified.
It also establishes a network of private-sector,
Government-certified companies to authenticate new employees'
identities utilizing existing background check and document-
Ms. Jackson Lee. So this is out sourcing, if I might? What
protections in terms of those outsourced companies, what kind
of vetting would they go through? And let me recall, of course,
the loss of records by the Veterans Administration and others.
Ms. Giffords. They would be certified through a process, as
well, so that these firms, if the employer chooses to go
through them, would go through a certification.
Now, in follow-up to Congressman Gutierrez's, comments,
there also would be an ability of a use of a biometric
identifier if employers chose to present that information and
go that route. But there is more protection under Social
Security. There is a better ensurement under the workforce.
Plus, it fundamentally shifts where U.S. citizens, where our
databases should be held.
Ms. Jackson Lee. And would you support, if I might, with
this system, working a comprehensive approach or an
Americanization approach, however we want to address it, to
have those who are here find a vehicle, a pathway into
Ms. Giffords. I am not sure I understand your question.
Could you repeat it?
Ms. Jackson Lee. If this was to go forward, would you also
see a complement to that a comprehensive approach to
Ms. Giffords. Congresswoman Jackson Lee, I was a cosponsor
of the STRIVE Act because I believe that the enforcement
portion of illegal immigration is critical. I talked about the
impacts illegal immigration has to southern Arizona. But we
need to fix the system as a whole.
And I am not happy that our Senate and this Congress has
not moved forward faster. I know it is complicated. And I want
to congratulate and compliment Chairwoman Lofgren for moving as
much as we possibly can. But, yes, we need to have an overall
fix, which requires a lot of different aspects.
The illegal immigration system that we have, our system for
immigration is broken in this country. But I believe that this
portion, this small portion for employee verification is much
better than we currently have in Arizona.
Ms. Jackson Lee. Well, let me congratulate both of you. And
certainly I want to congratulate Mr. Shuler, who I think has
done a very hard task. And we have had some legislation like
that, Mr. Shuler, in the past, that even Democrats have
supported. So let's find our way to a compromise, and we can
work through these issues of enforcement and work with some of
the issues that you have raised. And let me thank you very
And I yield back.
Ms. Lofgren. The gentlelady's time is expired.
I recognize now Mr. Goodlatte for his 5 minutes.
Mr. Goodlatte. Thank you, Madam Chairman.
I would like to thank both of our colleagues for their
contribution today and ask them both if they would tell me if
they think that--while I think we can acknowledge that the
current system is not perfect, Mr. Shuler, do you believe that,
in general, verification or E-Verify provides a useful tool for
willing employers to identify whether employees are legal or
Mr. Shuler. Yes, it does. It goes through the screening
process. And also, to kind of follow up on Ms. Jackson Lee, it
is not to be used for a prescreening process. You hire the
person, and then you fill out the appropriate forms, whether it
be online or call in and go through the E-Verify process. So,
in doing that, it will actually--it is you are qualifying the
person based on their skills, and then you follow that up with
the E-Verify portion of it.
And, in saying that, we are actually making sure everyone
is actually on a level playing ground
Mr. Goodlatte. Thank you.
Ms. Giffords. Congressman Goodlatte, Arizona--and I don't
think you were here for my initial testimony--became the first
State to roll out a mandatory requirement for employers to use
E-Verify. We have heard from our business community in not just
southern Arizona but around the State--I had over a dozen
Chambers of Commerce from the State of Arizona here last month
to come and present their information--that it has been
burdensome and unreliable and very difficult to maneuver
through with their employees. A lot of documentation to talk
So I am urging Congress, before we move forward with a
national requirement to use the E-Verify system, that we look
at Arizona's example. And there are some real issues.
I have cosponsored legislation with Congressman Sam Johnson
as an alternative to the E-Verify system, which would instead
require U.S. citizens to use the Social Security database, the
deadbeat database that 95 percent of all employers are
currently using. Now, foreign-born workers would be required to
go through the Department of Homeland Security, but--you know,
there are significant differences with the bill. I think this
approach is better
Mr. Goodlatte. In that regard--because I certainly favor
verification technologies. Whether we agree on a particular one
to use or not, I think it is worthy of further exploration.
But, in general, do you believe that the use of these
verification technologies has resulted in more or less hiring
of illegal aliens by those employers that use them?
Ms. Giffords. Congressman Goodlatte, I support verification
technology as well. I believe that all employers should be
required to verify the status of the workforce. I think that is
Mr. Goodlatte. Do you think what has been done thus far has
resulted in hiring fewer illegal aliens?
Ms. Giffords. Congressman, it is difficult to say, because
in Arizona, for example, we have about 15 percent of our
employers that are using the E-Verify system. We really don't
know yet, because we don't have everyone currently using the
same system. For those employers that are choosing to use it, I
believe that they are complying with the law.
Now, whether or not the documentation that is being
provided to them is legal documentation, the I-9 form, I am not
sure. Again, NEVA takes away the I-9 form and uses better forms
of documentation, more solid, three forms, instead of what the
E-Verify system allows. I think, again, that is a better
Mr. Goodlatte. Let me ask Mr. Shuler. Obviously, our effort
here is to protect U.S. workers and to make sure that employers
have the workforce they need, but that they are workers that
are legally in the United States.
Do you believe that if we made it mandatory, the net result
would be fewer illegal aliens getting hired in violation of the
Mr. Shuler. Yes. I think so many companies now are using E-
Verify. They are actually seeing that they are not having to be
document experts. The I-9 form is a perfect example. When they
look at the information, if a potential employee comes in, they
don't have to be able to say, is this documentation that they
are giving me, is this correct or is it false documentation?
So utilizing this, the people who are abiding by the laws,
the rule of the law, if they are abiding by it, they are seeing
that in a thousand employees, 942 get instantaneous
verification; 53 of them are nonconfirmation mismatch; and 5
percent, only 5 of those thousand are actually contesting it.
So we are seeing that 53 out of a thousand are actually
walking away because they are here illegally. So I think the
proof is there with the companies who are abiding by the laws
we presently have on the books.
Mr. Goodlatte. Madam Chair, if I might just ask one more
Ms. Lofgren. Yes.
Mr. Goodlatte. So, in other words, when we utilize some
form of a verification system--and I appreciate both of your
efforts to come up with one. But even the E-Verify system,
which clearly has some error rate, there----
Mr. Shuler. --0.5.
Mr. Goodlatte [continuing]. Is no doubt that some people
are going to experience something there, that nonetheless gives
the employer and our Government, our citizens, if you will,
with regard to our policy of not hiring illegal aliens, a much
more sophisticated additional check to the documents that are
presented to the employer, which we know are often fraudulent
and cannot be by themselves often verified on their face by the
employer, who is not an expert in these documents.
So, taking it to the next step, even if it does raise
question with a certain percentage of those who are checked,
the remainder of the people are either cleared through or are
found to be illegally in the country, and those that are in the
question-mark area, well, we need to take further steps beyond
that to figure that out. But at least we have significantly
improved upon the process of simply relying upon the paper that
is in front of the employer.
Mr. Shuler. Absolutely. And it takes the liability off of
the employer once they verify and they download, they print out
the copy of the E-Verify form. It will take the liability off
the employer if there were to happen to be an error rate.
Mr. Goodlatte. Thank you.
Ms. Lofgren. The gentleman's time is expired.
We do have two panels after this panel, so I am going to
recognize my colleague from California for 5 minutes.
Ms. Waters. Thank you very much, Madam Chairman, again. Let
me thank you for the tremendous work you are doing trying to
deal with the serious problem that confronts this Congress,
that we are having difficulty dealing with the comprehensive
immigration reform. But you certainly are getting into all
aspects of it through this Committee.
I am just wondering, there are several articles in today's
newspapers about the FBI's inability to do the screening and
that you have a lot of legal immigrants who are waiting for
years to get their citizenship.
Now, as I understand it, if these legal immigrants are in
the system and they cannot get, I guess, their visas and their
citizenship, how are they treated in the E-Verify system? Mr.
Shuler, do you know?
Mr. Shuler. Through DHS. If they are here legally, they are
confirmed through DHS.
Ms. Waters. What does that mean?
Mr. Shuler. When we go through E-Verify and put the
information in, you either come back confirmed, basically, they
have the right to work in the United States, or a mismatch,
nonconfirmation. And in those processes, DHS, obviously, you
will have the confirmation that they have the right to work in
the United States.
Ms. Waters. Well, I question all of these systems. I
question the fact that the FBI cannot do the verifications.
They are backed up. You don't have enough employees. The
technology is outdated.
I question whether or not we really know whether or not
there is a .5 percent error or a 4 percent error in the E-
Verify system. How can you be so sure that it is only a .5
percent error in the E-Verify system? What makes you so
Mr. Shuler. Well, first and foremost, it has been proven.
It has been since 1996 when, actually, E-Verify was in place.
It is not a system that we are having to rethink or revamp. It
is actually a system that has been in process for quite some
time. The statistics show--Westat, an independent audit of E-
Verify, said it was a .5 percent error rate that would happen.
DHS also says there is not one person to have ever been
denied employment, of their knowledge, based upon an error, to
their knowledge, not one. And every one of our staffers,
everyone that works on the Hill goes through E-Verify. That is
all of the employees here. I don't know if they E-verified us
as Members, but certainly the staff who works with us.
Ms. Waters. I think that the inspector general would
disagree with you because of the audit that it did. They are
the ones who came up with the 4 percent error.
Mr. Shuler. Well, that is just on the Social Security
database. You have to separate the Social Security database and
the E-Verify system, because it goes through two systems, and
it is in the process of going through multiple systems.
And, remember, E-Verify is similar to, like, Googling. When
you type in the information, you get the verification back.
Actually, in my office, I did myself, and it came back
confirmed for eligibility of employment. And it was less than 5
seconds. You know, it was very similar to Googling. You type in
a search word or something, and it comes back in less than 1
second. That is how the confirmation came back in our office.
Ms. Waters. Well, Congresswoman, if it is that good, what
are you complaining about?
Ms. Giffords. Congresswoman, we have numerous examples,
including the GAO, including the inspector general, that said
that the basic pilot of the E-Verify system has significant
weaknesses, which includes reliance on these Government
databases that have an unacceptably high rate of error.
My colleague, who I applaud for his hard work, continues to
talk about how every Member here in the Congress is able to
just fly through the system. Yet, we have one of our important
staff members, Traci Hong, who is with us, who herself had an
issue when she went to go apply through the system. There is an
article here in the USA Today that talks specifically about the
problem that Traci had.
Ms. Lofgren. It is a good picture of her, too.
Mr. Shuler. But I think it was fixed. I think it was--
obviously it was fixed, a couple of times, because of the name
Ms. Giffords. And, Congresswoman, as well, if the E-Verify
system relies on the Social Security database, you can't talk
about one and not the other. You can't pull out part of the
database. It's fuzzy math to say that the E-Verify only has a
.5 percent reliability rate if it requires the use of a Social
I think what we all want is the same system. Again, what I
am saying is that, you know, I have a case model in my State
where the system is not working as well as it needs to be. And
there are some philosophical differences with the system as
well, as far as protections for U.S. citizens.
Ms. Lofgren. The gentlelady's time has expired.
Ms. Waters. If I may----
Ms. Lofgren. Yes?
Ms. Waters [continuing]. Thirty more seconds?
Ms. Lofgren. Okay.
Ms. Waters. Let me just say this, that there has been a lot
of talk about the Social Security system here. And, of course,
in our office we do get Social Security complaints, and we work
on them. But I am a big supporter of the Social Security
system, and I think it does a good job for the millions of
Americans here. And I would just disagree with those who think
that somehow the Social Security system is so flawed that it
could not do a good job with this. So I just want to speak up
for Social Security here today.
Ms. Lofgren. All right. Well-noted.
We will turn now to Congressman Lungren for his 5 minutes.
Mr. Lungren. Thank you very much, Madam Chair.
As one of the key authors of the Simpson-Mazzoli bill in
1986, I am one of those responsible for making it illegal for
employers to hire illegal aliens. We put that in as a balance
to the other side of the bill, which was the legalization
program, the most successful and largest-scale legalization
program in the history of the country. The legalization part
worked; the enforcement part never did.
I hope my friend, Mr. Shuler, understands what the term
``slow-walking'' means. We can postpone this, and we can find
every problem, and we can understand that every pebble is a
boulder, and we can make sure that we don't put something in
until the system is perfect, and we will be right in the
situation 20 years from now that we are in right now. We never
enforced it. We never enforced it. If we wait until the Social
Security system is perfect, we will never put this in.
There are imperfections involved, but, as the gentleman
from Virginia suggested, the purpose of this is to make sure
that American workers who are here legally, whether they are
native-born or whether they have been legalized or whether they
have a permanent resident alien card, have the right to get a
job and the people here illegally do not have the right to get
a job. I mean, that is what we are talking about. And we are
talking about millions of jobs that are taken by those who are
here illegally. So I hear, well, we might have a couple
thousand people that will be, on initial check, turned down.
But, as you suggest, on secondary check, almost all of those
are taken care of. So I hope we put it in the proper context.
As I sit here, I am reminded this is the week of D-Day and
the follow-on that my dad was involved in. And had Eisenhower
faced D-Day the way we seem to be looking at this problem, we
never would have left England, because we would have waited for
absolutely perfect weather, we would have made sure everybody
had their assignment, we would have made sure no one was
dropped in the wrong place, we would have made sure that the
Germans absolutely were asleep in every single situation, and
we never would have succeeded.
Sometimes Government has to rise to the challenge. And it
seems to me, Mr. Shuler, you suggested to us that the time is
now for us to rise to the challenge. Would you have any problem
in your proposal to have one element of the other bill put on--
that is, that we move toward biometric as we move along with
this system, biometric identification in the Social Security
Mr. Shuler. I couldn't agree more with you about moving
along. One of the things that we have to do, it can't be a
voluntary basis like the other piece of legislation. It has to
be a mandatory. If not, no one is going to use the system, and
we are going to be just like we are today 20 years from now.
Mr. Lungren. It has kind of been a voluntary system for the
last 20 years.
Mr. Shuler. Yes, it has been that way, so why go through a
voluntary system like the other piece of legislation? It has to
But we have that process. It is complete. The Secretary
says it is ready for a national rollout. So I feel very
comfortable, very confident in the system proceeding forward.
Mr. Lungren. And, Congresswoman Giffords, you suggested
that there was an error rate or a decline of 3,000 per 100,000
or whatever it was. Is that correct? But that was on initial
check, was it not?
Ms. Giffords. Congressman, I am talking specifically about
the problems we have with non-U.S. workers.
Mr. Lungren. No, no, but I am asking, you gave a figure of
3,000, but that was on the initial review, right?
Ms. Giffords. Ten percent. But not authorized----
Mr. Lungren. I am just trying to ask you whether that is
the initial check.
Ms. Giffords. Yes, sir.
Mr. Lungren. So then what is the decline rate after the
secondary check? If you are starting with 3,000, what do we go
Ms. Giffords. We don't know. It is actually closer to
30,000 for the State of Arizona. And we don't know because----
Mr. Lungren. Well, then what is it on the secondary?
Ms. Giffords [continuing]. There are 8 days then to be able
to follow up and clear up your paperwork. And if you don't
resolve the error within 8 days, you may be fired. So whether
or not that resolution happens, we don't know, because----
Mr. Lungren. So we don't know what that number is.
Ms. Giffords. We don't know.
Mr. Lungren. Now, I was also interested in your comment
about agriculture. I happen to believe that the case for
agriculture is proven. I mean, we have had it in your State, in
my State of California for well over 100 years. We rely heavily
on foreign workers. We ought to have a program that allows them
to come in legally when we establish that.
But then you went on to talk about it is tough to get
people making $7, $8 an hour working in 115-degree temperature,
working--I forget in what situation it was. Do you really think
we can't get American workers to work in construction and these
Ms. Giffords. Congressman, I was making a point about how
challenging it is in southern Arizona for our----
Mr. Lungren. No, I understand, but my question is: Do you
think we can't get American workers in construction or these
other areas where you say it is difficult to get someone making
$7 an hour working in 100-and-whatever-it-is-degree
Ms. Giffords. Congressman, we have a lot of U.S. citizens
that are not working that should be working, and the
construction industry is a good place for them to be.
Mr. Lungren. I absolutely agree----
Ms. Lofgren. The gentleman's time has expired, unless he
wants an additional few minutes?
Mr. Lungren. Well, I would like the same indulgence others
have had, if you don't mind.
Ms. Lofgren. We will give you an additional minute.
Mr. Lungren. I mean, I have been here back and forth over a
30-year period of time, and one of things that has absolutely
bedeviled me is how we don't do something affirmatively to
increase job opportunities for our inner-city youth, for
African American males between 18 and 30. And it just seems to
me that the construction trade is a tremendous opportunity for
them. And I have seen over the last 20 years the presence of
illegal aliens in the construction industry grow and grow and
grow and grow. And now I hear arguments that somehow we need to
legalize people who came here illegally for the construction
And while I am very sympathetic to the fact that American
employers need to have an available workforce, and that ought
to be proven, I just look at what has happened over the last 25
years and I have to throw up my hands and say, ``Don't we have
an obligation to take care of Americans first?''
Ms. Giffords. Absolutely.
Mr. Lungren. As generous as we are to the rest of the
world, and when we have high unemployment rates, particularly
among African American males age 18 to 35, don't we have some
obligation to think about them first before we start thinking
And maybe that is an unconventional thought, but I think
that ought to be wrapped into the process of why we want to
have E-verification, and then move on perhaps to a biometric
which allows us to bring those mistakes down. But we have to
get started somewhere.
I thank both of you for testifying, and I thank the
Chairwoman for her indulgence.
Ms. Lofgren. The gentleman's time has expired.
I will just make a couple of statements, and I have just
one question for Ms. Giffords.
I think this has been a useful morning. We do appreciate
the time you have spent with us. I know how busy everyone's
I think that, to some extent, really in defense of what we
are doing, there was no examination of this subject by my
predecessor as Chair. I think we had more hearings in the first
month of my Chairmanship than we had in the prior Congress. But
we do need to examine where we are going before we leap, it
seems to me.
And I think there are some things that need to be pointed
out. I mean, the fact that someone walks away from a mismatch
doesn't mean that they are illegal. Right now this is a
voluntary system, and if you are going to be a bus boy at one
restaurant that is using E-Verify, and it is a problem, instead
of going to the Social Security system five times, you can just
be a bus boy at the restaurant next door that doesn't use E-
Verify. So we can't make assumptions based on that. We need
data. It is hard to get.
I would note also that we don't know exactly what the
percentage of mistakes are in the database at Social Security.
But if we have 5 percent unemployment and we have got, let's
say, 4 percent of the U.S. citizens get wrong information, we
could have unemployment go to 9 percent of American citizens,
if some of the information we are being told is correct. So we
want to make sure that we know what we are doing before we move
And I will just mention, Ms. Giffords, as you did, that we
have a Texas lawyer here sitting to my right, Traci Hong. She
is a naturalized American citizen, has been an American citizen
for several decades. And the House of Representatives uses E-
Verify, and so when I hired Ms. Hong, she went down and she got
a report that she wasn't authorized, which came as quite a
surprise to her. I mean, she gets, like all of us do, her
Social Security sent to her once a year, how much you can
expect in your benefits and the like, but Social Security
Administration just had it wrong. I mean, it took her six
separate trips to try and straighten this out. And she is an
immigration lawyer working for the Chair of the Immigration
So we need to make sure that the rights of Americans are
protected in whatever system we do. I give both of you loads of
credit for the time and effort that you have put into this
subject. It is an important one. I think we all agree that we
need to have a system in place, and your contribution is going
to be very material as we move forward in this effort.
So I said I just had one question, and it is for you,
Congresswoman Giffords. As you described the outsourcing, for
lack of a better word, I was reminded--I am a Clear Pass
member. I have a little biometric card. Whenever I go to the
airport, I put it in, and I put my index finger--are you
thinking something along those lines?
Ms. Giffords. Madam Chair, yes, a biometric identifier is
an option that employers can choose to take, if they go that
route. We have a lot of flexibility. It is a mandatory
requirement that you go through the verification system, but
that would be an additional step of protection that employers
Ms. Lofgren. So the Government wouldn't necessarily have
all of that, and there would be that level of protection, is
what you are proposing.
We have two panels following. I am going to thank you both
for coming, for your hard work on this, and for the information
you have given us here today.
Mr. Shuler. Thank you, Madam Chair.
Ms. Giffords. Thank you.
Ms. Lofgren. Thank you very much.
We will now ask our next witness to come forward.
I am pleased to welcome Jonathan Scharfen, who is the
acting director of the U.S. Citizenship and Immigration
Mr. Scharfen retired from the United States Marine Corps in
August 2003, after 25 years of active-duty service. He then
served as chief counsel and deputy staff director of the House
International Relations Committee until July 2006.
Mr. Scharfen received his bachelor's degree from the
University of Virginia, his juris doctorate degree from the
University of Notre Dame, and his LLM from the University of
San Diego. He also attended the U.S. Army War College in
Carlisle, Pennsylvania, where he studied national security
He is married and has three children.
As you know, Mr. Scharfen, your full statement will be made
part of the official record of this hearing. We would ask that
you give your testimony in about 5 minutes, if you would,
TESTIMONY OF JONATHAN ``JOCK'' SCHARFEN, ACTING DIRECTOR,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE
Mr. Scharfen. Thank you very much, Chairwoman Lofgren,
Ranking Member King, Members of the Subcommittee. I am grateful
for the opportunity to be here before Congress to discuss our
shared goal of effective employment eligibility verification.
At DHS, USCIS is responsible for administering the E-Verify
program in partnership with the Social Security Administration.
Any participating company can access E-Verify through a user-
friendly Government Web site that verifies information
submitted by employees with more than 449 million records in
the Social Security Administration database and more than 60
million records in DHS immigration databases.
E-Verify is the only available tool for employers to gain
quick and easy verification information for their new hires.
Over 69,000 employers, representing over 269,000 work sites,
use the E-Verify program. And the number of registered
employers is growing, on average, over 1,000 per week. The
number of employers enrolled this fiscal year has already more
than doubled since November. Since 2004, E-Verify has been
available to employers in all 50 States and in most U.S.
Last August, the Administration pledged to commence a
rulemaking process to require all Federal contractors and
vendors to use E-Verify. And this proposed rule has been
submitted to the Federal Register for imminent publication.
Yesterday, Secretary Chertoff designated E-Verify as the system
Federal contractors shall use.
In partnership with the Social Security Administration, we
have made significant improvements to decrease mismatch rates
and ensure data accuracy, ensure that the program is user-
friendly, and protect employees' rights.
Over the past year, E-Verify automated its registration
process, instituted a system change to reduce the incidence of
typographical errors, incorporated a photo screening tool for
DHS documents to combat document fraud, established monitoring
and compliance units and privacy functions to maintain system
integrity, added new databases that are automatically checked
by the system, and established a new process for employees to
call USCIS's toll-free number to address citizenship mismatches
as an alternative to visiting the Social Security
Administration, all in an effort to establish efficient and
The most recent statistics appear to show that the share of
legal workers who are not automatically confirmed by E-Verify
as work-authorized is decreasing. Furthermore, USCIS plans to
add the ability to query by passport number to E-Verify this
fall, which will further reduce error rates, and is also
working to add visa and passport photos to the photo tool
function. Additional improvements seek to ensure that the data
relied upon by E-Verify is as up-to-date as possible.
Independent studies show that E-Verify is an accurate and
effective tool. Currently, 99.5 percent of all work-authorized
employees queried through E-Verify were verified without
complication or having to take any type of corrective action.
Overall, the Westat evaluation found that over 94 percent of
all cases are automatically found to be employment-authorized.
The E-Verify program has substantially increased its
customer service and program staff over the past 2 years in an
effort to work with employers and ensure that every question or
difficulty that arises is addressed. The E-Verify program
outreach staff has conducted numerous training programs and
workshops across the country to inform employers about the
system and the benefits of using E-Verify to verify the work
authorization of their employees.
An effective electronic work authorization verification
program is critical to reducing the jobs magnet that encourages
illegal immigration, but the program also must include robust
tools to detect and deter employer and employee fraud and
misuse. We are aware that some aliens without work
authorization use identity fraud to obtain employment in this
country. To help prevent this problem, the E-Verify program
introduced the photo screening capability into the verification
process last September. This tool allows employers to determine
if the DHS document presented by the employee has been photo-
substituted. Through use of the photo tool, several cases of
document and identity fraud have been identified, and
unauthorized workers have been prevented from illegally
When Congress created what is now the E-Verify program in
1996, it initially set a 5-year time limit on the program.
Recognizing the importance of electronic worker eligibility
verification, Congress has twice chosen to continue the program
since its initial authorization. The current language of the
statute directs DHS to terminate the program at the end of
November of this year. I respectfully urge the Committee to act
immediately to extend E-Verify permanently.
Efforts to improve agency systems and policies related to
E-Verify that have been on going since 2003 continue to show
positive and tangible results. DHS will continue to work with
the Social Security Administration to operate and enhance the
Thank you for the opportunity to testimony today. I am
grateful for the support of the Members of this Subcommittee,
and ask for your continued commitment to the program. Thank
[The prepared statement of Mr. Scharfen follows:]
Prepared Statement of Johnathan ``Jock'' Scharfen
The E-Verify program (formerly known as Basic Pilot) is a Web-based
system that electronically verifies the employment eligibility of newly
hired employees. This initiative is a partnership between the
Department of Homeland Security (DHS) and the Social Security
Administration (SSA). U.S. Citizenship and Immigration Services
(USCIS), the agency in DHS responsible for immigration services,
administers the program.
E-Verify is an essential tool for employers committed to
maintaining a legal workforce. Any participating company in the United
States can access E-Verify through a user-friendly government Web site
that compares employee information taken from the Form I-9 with more
than 449 million records in the SSA database, and more than 60 million
records in DHS immigration databases. Currently, 99.5 percent of all
work-authorized employees verified through E-Verify are verified
without receiving a Tentative Non-confirmation (TNC) or having to take
any type of corrective action. Those employees whose work authorization
cannot be instantly verified are given the opportunity to work with SSA
or USCIS, as appropriate, to confirm their work authorization. USCIS
estimates one percent of all queried employees choose to contest an
initial, tentative result from E-Verify showing that their work
authorization could not be verified, and only half of those who contest
that result are ultimately found to be authorized. The most recent
statistics appear to show that the share of legal workers who are not
instantly confirmed by E-Verify as work authorized is decreasing
further, but those numbers need more study. Furthermore, USCIS plans to
add the ability to query using passport information this fall, which
will reduce the rate of TNCs for U.S. citizens further, and is also
working to add visa and passport photos to the photo tool function.
Over 69,000 employers, representing over 269,000 worksites,
currently are signed up to use the E-Verify program, and the number of
registered employers is growing on average over 1,000 per week. E-
Verify is the best available tool for employers to gain quick and easy
verification information for their new hires, and we are committed to
working with your Committee and other members of Congress to achieve
our shared goal of effective employment eligibility verification.
HISTORY OF THE E-VERIFY PROGRAM
Congress established the Basic Pilot, now E-Verify, as part of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996 to verify the employment eligibility of both U.S. citizens and
noncitizens at no charge to the employer. The program was first made
available on a voluntary basis in 1997 to employers in the five states
with the largest immigrant populations: California, Florida, Illinois,
New York and Texas. Originally set to expire in 2001, E-Verify has been
extended twice, and is due for reauthorization by Congress by November
2008. Since 2004, it has been available to employers in all 50 states
and in the U.S. territories where U.S. immigration laws apply.
Since 2006, the number of employers registered has doubled in size
each year. We have seen a substantial increase in the number of states
with legislation or Executive Orders that require E-Verify use for some
or all employers under their jurisdiction. Arizona and Mississippi have
laws requiring all employers in the state to use E-Verify; and
Colorado, Georgia, Minnesota, Oklahoma, North Carolina, Rhode Island,
South Carolina and Utah require some employers to use E-Verify. A
directive issued last year from the U.S. Office of Management and
Budget (OMB) required all Federal government agencies to sign up to use
E-Verify by October 1, 2007. Last August, the Administration pledged to
commence a rulemaking process to require all Federal contractors and
vendors to use E-Verify and OMB recently concluded its review on this
proposed rule. On June 6, the President signed Executive Order 12989
directing the Secretary of Homeland Security to designate an electronic
employment eligibility verification system for Federal contractors to
use. Yesterday, the Secretary designated E-Verify as the system Federal
contractors shall use.
Additionally, in the past few months a number of DHS regulations
were published that require employers to register with E-Verify before
obtaining certain benefits. These include (1) a regulation enabling
certain F-1 students in Optional Practical Training to apply for a 17-
month extension of their employment authorization if they are employed
by an E-Verify registered employer and (2) the proposed rule reforming
the H-2A agricultural worker program, would allow H-2A workers who are
changing employers to begin work with the new employer before the
change is approved only if the new employer participates in E-Verify.
Participation and usage of E-Verify is expected to grow significantly
over the next few years.
HOW E-VERIFY WORKS
Within three days of hiring an employee, the participating employer
is required to enter information from the Form I-9 (Employment
Eligibility Verification form), including the employee's name, date of
birth, Social Security number (SSN) and citizenship status, into E-
Verify and submit a query. Within seconds, the employer receives a
For all workers, the system transmits, in a secure manner, the new
hire's SSN, name, and date of birth to SSA to verify that data against
the information recorded in its NUMIDENT database. For those employees
whose work authorization status can be verified automatically (i.e.
whose SSA record matched and confirms U.S. citizenship), the process
ends here with a confirmation response returned to the employer through
the system within seconds. In the remaining small minority of cases
where the SSA record does not match what the employer has put into the
system, the system issues an SSA TNC to the employer. The form is
available in English or Spanish.
When a TNC is issued, the employer must notify the employee and
give the employee the opportunity to contest that finding. If the
employee chooses to contest the SSA TNC, he or she has eight business
days to visit an SSA office with the required documents to initiate the
process to prove identity and support the correction of the SSA record.
Until the TNC is resolved, the employee must be allowed to keep working
and cannot be fired or have any other employment-related action taken
against him or her because of the TNC. If the employee fails to contact
SSA within the eight-day period, the employee is considered a no-show
and a final non-confirmation is issued by E-Verify. At this point, the
employer should terminate employment. A recent electronic business
process enhancement, EV-STAR, allows SSA to use the E-Verify system to
automatically inform the employer of the case resolution once the
employee visits SSA and resolves the issue.
Correcting SSA records is a useful byproduct of the E-Verify
process since it helps individuals identify and resolve problems with
their Social Security records. The work done to update records in order
to resolve an E-Verify mismatch may need to be done at a later time
when the individual applies for Social Security benefits.
If the query involves a noncitizen worker, the employee's name,
date of birth and SSN are matched with SSA records as they are in U.S.
citizen cases. If the information matches SSA records, then the DHS
identification number and work authorization information are also
matched against DHS databases. If the information cannot be verified
electronically, the case is forwarded to a USCIS Immigration Status
Verifier (ISV), who researches the case and provides an electronic
response within one business day, either verifying work authorization
or issuing a DHS TNC.
As with the SSA process described above, if the employer receives a
TNC, the employer must notify the employee and provide him or her with
an opportunity to contest that finding. An employee has eight business
days to call a toll-free number (which provides support in ten
different languages) to initiate the process to contest the finding.
Until the TNC is resolved, the employee must be allowed to keep working
and cannot be fired or have any other employment-related action taken
against them because of the TNC. Once the necessary information from
the employee has been received by phone or fax, a USCIS Immigration
Status Verifier resolves the case, typically within three business
days, by issuing either a verification of the employee's work
authorization status or a DHS final non-confirmation. If the employee
fails to contact DHS or SSA within the eight-day period, the employee
is considered a no-show and a final non-confirmation is issued by E-
Verify. At this point, the employer should terminate employment.
THE CURRENT E-VERIFY SYSTEM
Under USCIS management and in cooperation with SSA, the program is
continuously improving its processes to decrease mismatch rates and
ensure that E-Verify is fast, easy to use, and protects employees'
rights. Over the past year, E-Verify has automated its registration
process, instituted a system change to reduce the incidence of
typographical errors, incorporated a photo screening tool for DHS
documents to combat more sophisticated forms of document and identity
fraud, established Monitoring and Compliance staff to maintain system
integrity, and added new databases that are automatically checked by
the system. In addition, it has established a new process for employees
to call USCIS' toll-free number to address citizenship mismatches as an
alternative to visiting SSA, all in an effort to establish efficient
and effective verification.
E-Verify is the most accurate and efficient way to verify employment
E-Verify generates ``mismatches'' (or TNCs) when the information
supplied by the employee or employer does not match the information
that either SSA or DHS has on file. In almost every case, a mismatch
will occur either because the employee is actually not authorized to
work (five percent of all queries based on the September 2007 Westat
Evaluation); because the employee has not yet updated his or her
records with SSA (for example, to reflect name or citizenship status
changes); or because the employer made an error inputting information
into the system. Where there is a TNC, E-Verify gives the employee the
opportunity to take further action and correct his/her record with the
appropriate agency if they believe the mismatch is an error. Once a
record is corrected, it remains corrected. That employee will likely
not face another TNC if he or she takes a different job with another
employer unless the employee has a subsequent change in his or her
information. As noted above, correcting these records is important for
individuals to receive credit for their full work history when they
file for Social Security benefits. Moreover, correcting these records
reduces the chance that they or their employers will receive no-match
letter from the SSA pointing out a discrepancy between the employees'
personal information and the social security number reported for them.
The opportunity to contest an E-Verify finding is an important step
that seeks to ensure that no employee who is in fact work authorized is
prevented from working. All employers are required to ensure that
employees who receive a TNC are given the opportunity to contest that
finding and correct their records. Legal workers who contest will be
found employment authorized after resolution of the initial mismatch
and suffer no permanent adverse consequences.
Recent studies show that E-Verify is an accurate and effective tool
for verifying the work authorization status of employees. For the past
few years, E-Verify has been independently evaluated by Westat, a
social science research firm, which has monitored the effect of various
changes made to the E-Verify system. Currently, 99.5 percent of all
work-authorized employees verified through E-Verify were verified
without receiving a TNC or having to take any type of corrective
action. Though the 0.5 percent of all work-authorized employees who
receive TNC is very small, our goal is to reduce it even further.
Overall, Westat most recently found that over 94 percent of all cases
queried through E-Verify are automatically found to be employment
A large portion of the employees who successfully contest an SSA
TNC are those who have recently naturalized. As of May 5, 2008, some of
these mismatches no longer occur, as the system now automatically
checks USCIS naturalization records before issuing a citizenship status
mismatch. In addition, naturalized citizens who receive a mismatch are
now able to contact DHS by phone to address the discrepancy. USCIS and
SSA are also exploring enhancements, including a direct data share
initiative that would update SSA's database with naturalized citizen
E-Verify also added the Integrated Border Inspection System (IBIS)
real time arrival information for non-citizens to its databases as of
May 5, 2008, which reduced E-Verify mismatches that resulted from
noncitizen arrival information that had not yet been entered into the
databases E-Verify previously verified against. The addition of this
data to the E-Verify system is expected to reduce the number of
mismatches that occur for newly arriving workers who entered the
country legally and sought work immediately after having entered the
E-Verify plans to incorporate U.S. passport information into the
employment verification process. The use of U.S. passport information
will help instantly verify those employees who present U.S. passports
as proof of employment authorization and identity and may have
previously received TNCs since they derived citizenship as children
when their parents naturalized or they were born abroad to U.S. citizen
parents; both populations which currently receive a disproportionate
numbers of TNC. We are grateful for the hard work of the Department of
State in working towards this important data sharing initiative.
These improvements all seek to ensure that the data relied upon by
E-Verify is as up-to-date as possible. In some cases, however, the only
way for a person's records to be kept accurate is for that person to
report name changes and the like to SSA. Because not everyone in the
U.S. workforce is unfailingly diligent in this area, there will always
be a small number of legal workers who will have to go through the TNC
process. Nevertheless, we continue to work on the system to ensure that
every error that can be prevented through government data processes
will be avoided.
E-Verify is an efficient and easy system for employers to use.
Participating employers are largely satisfied with the E-Verify
program. Last year, the Westat evaluation reported that ``[m]ost
employers found the Web Basic Pilot (E-Verify) to be an effective and
reliable tool for employment verification'' and 96 percent did not
believe that it overburdened their staffs.
The E-Verify program has substantially increased its customer
service and program staff over the past two years in an effort to work
with employers and ensure that every question or difficulty that arises
is addressed. The E-Verify program outreach staff has conducted
numerous training programs and workshops across the country to inform
employers about the system and the benefits of using E-Verify to verify
the work-authorization of their employees.
E-Verify program staff is committed to maintaining the integrity of the
SYSTEM AND EFFECTIVELY PREVENTING DISCRIMINATION AND MISUSE.
An effective electronic work authorization verification program is
critical to reducing the job magnets that encourages illegal
immigration, but the program also must include robust tools to detect
and deter employer and employee fraud and misuse. A recent independent
evaluation of the E-Verify program found that employer compliance with
program procedures is improving, but identified the methods by which
some E-Verify employers may be using the program incorrectly. Failure
to follow E-Verify procedures can result in discrimination and reduce
the effectiveness of the program in decreasing unauthorized employment.
We are dedicated to reducing E-Verify misuse through employer training,
educational outreach, print and electronic resources, and our
monitoring and compliance program.
USCIS has been conducting extensive outreach across the country to
inform both employees and employers of their rights and
responsibilities within E-Verify. The goal is to reinforce
understanding of how to use the program correctly. Materials about
employer and employee rights and responsibilities are currently
available in both English and Spanish, and will be available later this
year in additional languages. Outreach efforts have included radio,
print and billboard public awareness campaigns in Arizona, Georgia, DC,
Maryland, Virginia, and soon Mississippi, as well as nationally
available internet advertisements.
USCIS has also been working to further inform employers and
employees on the proper E-Verify procedures through system materials.
Information on employee rights and responsibilities is now included in
the referral letters given to employees during the TNC process. We are
also working to refine the training materials and online resources for
users of the program to more clearly outline the methods for proper
USCIS has begun preliminary monitoring and compliance of employer
program usage to detect and deter potential misuse and abuse of the
program. Among the behaviors we are looking out for are SSNs or alien
numbers fraudulently being used, whether the employer is properly
referring workers who receive TNCs, and or taking adverse actions
against such workers, and whether an employer is improperly attempting
to verify all existing employees. USCIS works closely with the
Department of Justice Office of Special Counsel for Immigration-related
Unfair Employment Practices (OSC) for Unfair Immigration Related
Employment Practices to help ensure that employment authorized
employees are not adversely impacted by the program.
The Monitoring and Compliance unit also works to safeguard personal
privacy information; prevent the fraudulent use of counterfeit
documents; and refer instances of fraud, discrimination, and illegal or
unauthorized use of the system to enforcement authorities. Once fully
staffed, the E-Verify Monitoring and Compliance unit will carry out its
mission by educating employers on compliance procedures and guidelines
and providing assistance through compliance assistance calls. The unit
will also conduct follow-up with desk audits and/or site visits to
unresponsive employers if necessary, and refer cases of fraud,
discrimination and illegal use to OSC or U.S. Immigration and Customs
Enforcement (ICE), as appropriate.
E-Verify prevents certain types of document fraud.
We are aware that some aliens without work-authorization use
identity fraud to obtain employment in this country. To help prevent
this problem, the E-Verify program introduced a photo screening
capability into the verification process last September. This tool
allows employers to determine if the DHS document presented by the
employee has been photo-substituted. Through use of the photo-tool,
several cases of document and identity fraud have been identified, and
unauthorized workers have been prevented from illegally obtaining
employment. The tool allows a participating employer to check the
photos on Employment Authorization Documents (EAD) or Permanent
Resident Cards (green card) against images stored in USCIS databases.
The goal of the photo tool is to help employers determine whether the
document presented reasonably relates to the individual and contains a
valid photo. All employers registered to use E-Verify, with the
exception of those who use designated agents or a web services
application, are now using the photo screening process when the worker
presents one of the documents currently available in the photo tool
database. USCIS is currently working to change the business processes
for designated agents and web services users of E-Verify to enable them
to use this photo screening capability
We are also working to expand the types of documents for which the
E-Verify system will allow photo confirmation. Currently, only DHS-
issued identity documents are displayed in the photo tool. To this end,
USCIS is working with the Department of State to add visa and passport
photos to the photo tool database. The strength of this tool is
directly dependent on the range of documents for which it can be used,
and our long-term goal is for the E-Verify photo screening process be
able to verify the photos on all identity documents that an employee
may present as acceptable Form I-9 documentation.
USCIS is aware of the prevalence of identity fraud in this country,
and is especially concerned with how this practice affects E-Verify.
While we do not currently have any way to identify, upon initial
verification, identity fraud by an employee who has stolen a valid SSN
and identity information or has been supplied the information by their
employer, we are examining ways to do so. What we are able to do with
our Monitoring and Compliance unit is to identify indications that SSN
fraud has taken place, and work with ICE, in cooperation with the SSA
Inspector General, to deal with these cases. USCIS and ICE are
currently finalizing a memorandum of understanding to identify
instances where data sharing would be appropriate and we are currently
identifying ways to assist each others' work.
The E-Verify program infrastructure is capable of handling the volume
of queries that would be necessary for a nationwide mandatory
employment verification system.
In September of 2007, DHS and SSA conducted cooperative end-to-end
load testing between SSA's NUMIDENT database and the Verification
Information System (VIS), which is the database that supports E-Verify.
The results of the testing showed that E-Verify has the capacity to
handle up to 60 million queries per year. This capacity is in line with
the projected 60 million new hire queries per year that would result
from mandatory E-Verify legislation applicable to all U.S. employers.
DHS will continue to work with SSA to update the current pilot
architecture to ensure that DHS and SSA can provide the most stable
environment possible to the employer community and to create an
independent environment for E-Verify queries, separate from SSA's other
CONCLUSION--THE FUTURE OF E-VERIFY
We will continue to work with SSA to operate and enhance the E-
Verify program. Thank you for the opportunity to testify before this
Subcommittee and we appreciate this subcommittee's continued support of
the E-Verify program as it goes through the reauthorization process in
Ms. Lofgren. Thank you very much, Mr. Scharfen.
Now is the time when we can pose some questions. I will
One of the things that I had really not thought about
before the Westat report is this question: We have thought a
lot about the employees being screened, but if they are
correct, there is not really any screening of the employers. We
have an agreement. And the issue of whether a miscreant could
pose as an employer, sign a contract with DHS, and obtain
personal information about Americans that then would be used
for identity theft or crime, can you address that issue?
Mr. Scharfen. Yes, ma'am. First of all, the employer who
would want to do such a scam would have to have an employment
identification number that they have to first get from the
Social Security Administration.
Ms. Lofgren. That is not too hard to get.
Mr. Scharfen. I agree, it probably would not be that hard
to get. But the system itself is designed in such a way that
the employer isn't reaching up and grabbing personal
information from the system and pulling into his possession.
What he is doing is he is uploading names, Social Security
numbers, date of birth, and that information that he has
collected off of the I-9 program, which is already collected--
Ms. Lofgren. So he is getting a yes-no. He isn't getting
Mr. Scharfen. Yes, ma'am.
Ms. Lofgren. I appreciate that answer.
Let me ask you about data security. It seems like every day
we open the paper and there is some story about--you know, I
never had the idea that Government employees would have entire
databases of, you know, VA and everything on laptops that then
What steps are you taking to secure the integrity of the
data that you have?
Mr. Scharfen. I am going to make two points on that, ma'am.
First of all, the E-Verify system is using an enterprise
system service bus, which is a more modern approach to managing
computer systems. And that enterprise service bus has more
robust security features, computer security features, than
earlier versions of the computer systems. And so the enterprise
service bus has more firewalls and other protections that a
modern computer system has. That is number one.
Number two is that we have been doing routine privacy
impact assessment studies. We have also been complying with the
DHS computer security requirements and have been having reviews
of the system consistently and periodically.
And then, finally, we have a management--clearly, this is
of concern to DHS and CIS, and we have made it a focus of
management to ensure that the E-Verify data that has been
provided by different employers during their queries is given
all the protections and safeguards it deserves, both under the
law and as a prudential matter of what we can do as managers.
Ms. Lofgren. Let me ask you this. It is sort of a
philosophical question. I think the point made by Congressman
Johnson and Congresswoman Giffords is that USCIS's job is to
deal with immigrants; you don't have jurisdiction over
Americans. I mean, and that there may be an issue here of
whether we really want to turn over to the immigration part of
our Government the whole function of clearing hundreds of
millions of American citizens.
Do you have a thought on that?
Mr. Scharfen. I do, ma'am. The E-Verify, as I said in my
oral statement, ma'am, the E-Verify system is a partnership
between the Social Security Administration and DHS, and so we
are not doing this alone. We already are working with the
Social Security Administration in partnership.
And the system that we have now, if we were to redo that
and somehow put the focus over to another agency, you would end
up having to just reinvent that partnership again between the
And I think that the answer to those concerns, your
previous question, is how we work with the Social Security
Administration and what safeguards we have in place to ensure
that that information is given the protections it deserves and
must have under the law.
Ms. Lofgren. Thank you very much.
And my time is about to expire, so I will turn to Mr. King.
Mr. King. Thank you, Madam Chair.
In response to the remark that actually, Madam Chair, you
made with regard to we don't know whether they are legal or not
if they walk away from following up on clarifying their
records, for myself I reflect back to when I was 16 years old
and just started paying taxes and there was a mistake by Social
Security in transposing two numbers in my Social Security
number. I was livid and determined, and I cleaned up those
records, and it took me several years. But it is a lot easier
today, I would think, than it was then, because at least we
have some electronics record and we can get some more immediate
response rather than waiting for long answers from letter. But
I would think that it is a duty and a responsibility of someone
who is lawfully present in the United States and can legally
work here to clean up their records.
Is it true that either E-Verify is identifying people who
are unlawfully seeking work in the United States, or, if there
is a rejection, it identifies a record that needs to be
Mr. Scharfen. I think, as a basic proposition, that is
generally accurate, yes, sir.
Mr. King. And I thank you for that.
And then, as I look at these records, I know that we have
had a conversation about linking your query to the database of
naturalized citizens. And that brings another level of
efficiency here that I don't think is reflected in this
accuracy data that has been testified to today.
And I don't want to ask you to go on record for the results
of that, but I would just ask you, what do you anticipate will
be--what do you think is going to happen once that data is
brought into this, the efficiencies that you will give back to
us when that is credible?
Mr. Scharfen. Yes, sir, I think the two improvements that
you are talking about are the ones that we made May 5th of this
year. One is that we are including in the system a check of the
CIS naturalization databases, as well as the real-time arrivals
information from the port of entries. And so, the combination
of those two new data sources that are now being included in
the E-Verify system, we believe that that is going to reduce
the .5 percent mismatch rate for eligible or authorized
employees, that it will reduce it by half. So you will be going
from one-half of 1 percent to one-quarter of 1 percent.
Mr. King. If I might interject----
Mr. Scharfen. If I could just add one--those are just all
kind of percentages, but if I could just give you a real number
there. Our data shows that, since May 5th, we have identified
3,500 employees who were naturalized, in other words, are
naturalized citizens. And they were identified through this new
Mr. King. I thank you, Mr. Scharfen.
And then with the discussion about Social Security being,
by some opinions, more efficient than USCIS with regard to
this--and I asked the question of Ms. Giffords, and I don't
know that--I just want to ask you this.
What is the distinction between E-Verify's database setting
up a query--I mean, you don't house Social Security
Administration data. That is not your database. So you send a
query out to SSA, and it comes back and says verified or not.
Then you send a query out to your records, and it says verified
Mr. Scharfen. Yes, sir.
Mr. King. So what would be the distinction between the
proposal made by Mr. Johnson and Ms. Giffords about setting up
a Social Security system, that under the Social Security, to
send a query to their database and then a query to your
database, how would that function differently than it does
Mr. Scharfen. I think that is a point, obviously, I agree
with, is that if you are going to do away with E-Verify and
come up with a new system, you are just going to have to
reinvent E-Verify. You are going to have to have a partnership
between the Social Security Administration and DHS/CIS to run
this program. And I really think that the Congress was correct
in initially authorizing this program. It was correct in its
two instances of reauthorizing it. And it is the best available
tool today to do employment eligibility verification, and it is
one that we are dedicated and committed to making it better as
we go forward.
Mr. King. Mr. Scharfen, I think, in Mr. Shuler's testimony,
he stated that DHS knows of not one case where a U.S. citizen
was denied employment because of an error with the Basic Pilot
Program. I want to know if you can verify that or if you can
comment on that particular statement.
Mr. Scharfen. Right. I think what Mr. Shuler was saying was
that those individuals who have gone through to clarify,
perhaps, a tentative nonconfirmation as a citizen, we have no
reports that none of them were able to resolve that and be able
to establish their eligibility.
One point that I think you know well, sir, is that while
that is ongoing, that person gets to continue in employment and
that they are employed, and there is no right to fire that
person until it has been resolved.
Mr. King. And just briefly, just to conclude, the statement
that there has been no one denied employment who was a U.S.
citizen, doesn't it come back to the basis that, actually, in
the final analysis, you are the measure itself against whether
this--against which everything else is weighed, in that you
make that verification and you run that out against Social
Security Administration, your own database, and then you clean
up the records? So if there is going to be a measure in this,
you would have corrected that in the process of cleaning up the
records. So, by definition then, zero would be the number. Is
Mr. Scharfen. That is correct. We are dedicated to getting
the right answer. And in fact, as you know, we've created a new
call line where people can call directly to CIS to resolve
these issues. And we are increasing that staff, and we are
dedicated to doing this as quickly and as easily as we can.
Ms. Lofgren. The gentleman's time has expired.
Mr. King. Thank you, Madam Chair. And I yield back.
Ms. Lofgren. I turn now to Mr. Conyers.
Chairman Conyers. Thank you.
You have been on the job a couple years.
Mr. Scharfen. Yes, sir, I have.
Chairman Conyers. And you have got 21 people trying to
cover how many? What is this 250,000 or 66,000--66,000
employers who have 250,000 work sites but maybe millions of
employees. Am I missing something here?
Mr. Scharfen. If I could just run through the numbers.
Chairman Conyers. No, I am running through the numbers. Am
I missing something here?
Mr. Scharfen. In all respect, yes, sir, I believe you are.
If I could run through the numbers really quickly.
Chairman Conyers. No, that is not going to be necessary.
How can you with a staff of 21 people even get to the front
door of your own office, much less handle the challenge that
you have been in for less than 2 years?
Mr. Scharfen. The numbers that we have that are working on
this program, for the program staff, sir, this is E-Verify and
SAVE, there is 360 employees. For just the outreach staff
alone, we have 16 employees. For the privacy staff alone, we
have eight employees; five full time employees, three
contractors. For the monitoring and compliance unit, sir, we
have 28 located at headquarters alone. In the field, we have 30
monitoring compliance in the regional office. That is going to
grow in the next year to 135.
So if you add all that up, it ends up being close to 500,
Chairman Conyers. Well, that takes care of everything. Then
we can sleep more comfortably in our beds at night, now that I
know that some day soon under a new Administration, there is
going to be 500.
Some employers use E-Verify to screen job applicants
reported by 16 percent of long-term users, and then presumably
either deny applicants an opportunity to work or postpone their
starting date. In other words, they pre-screen them. And what
about other employers who get prohibited adverse action--look,
this is all set up to get the employers off the hook, and we
are not getting them off the hook. We keep looking at some poor
desperate guy that wants a job here, and we are worried about
him and where he came from, but the employers have got the
upper hand in here. And, guess what? Do you know how many
people you ever refer over to the Department of Justice for
Mr. Scharfen. We were just discussing that before the
hearing, sir. And in fiscal year 2008, the cases referred to
DOJ so far has been one case. In previous----
Chairman Conyers. One case.
Mr. Scharfen. Yes, sir. Excuse me. Then you have to also
include though cases referred to ICE. There have been over 40
cases referred to ICE at their request. Two cases have been
identified by our new monitoring compliance team. The others
were requested by ICE. And so if you add those up----
Chairman Conyers. I can add. Those are single digits. I can
add them up. You don't have to add them up for me.
In other words, the employers are walking away from this
huge system, and anybody that they consider an organizer or
troublemaker or finds there's a title 7 violation or anything
else, they are dead meat under this system.
Mr. Scharfen. The system is based on automating an INI
program that was already in existence. And I think that if you
are going to have abusive employers who are going to violate
the law, I think that they can probably do that even without E-
In fact, I think that the E-Verify adds us--gives us
additional enforcement tools to deter and also to prosecute, in
some cases, examples of unlawful conduct by employers, because
you now have a database that you can analyze for employer
misconduct. In fact, the monitoring and compliance----
Chairman Conyers. You know what, if this wasn't so serious,
I would think you are kidding me. You give me those puny
numbers and tell me that this is strengthening you, that it
would be--there would be even fewer employers prosecuted if you
didn't have this system, and I am supposed to feel better about
that. And then, next year, we are going to get--we may get up
Mr. Scharfen. I think that the monitoring compliance units
that we are creating, sir, we are looking forward to creating
an analysis system that would end up looking for patterns that
would indicate discrimination. And I think that is going to be
a tool that is going to be useful to fight discrimination by
Chairman Conyers. Have you ever worked in a foreign affairs
Mr. Scharfen. I used to be the chief counsel of the House
International Relations Committee.
Chairman Conyers. I know. And I think you ought to begin
looking at that position again.
Mr. Scharfen. Yes, sir. Thank you.
Chairman Conyers. You are more than welcome.
Ms. Lofgren. The Chairman's time has expired.
And all time has expired for this witness.
And we do thank you for your appearance here today, Mr.
Scharfen. If we have additional questions, we will forward them
to you and ask that you respond promptly.
Mr. Scharfen. Thank you, ma'am.
Thank you for the opportunity to testify. I appreciate it.
Ms. Lofgren. We will now ask our third panel and final
panel of distinguished witnesses to come forward.
First, I am pleased to welcome Dr. Carolyn Shettle, who is
the senior study director at Westat, with over 30 years of
experience in research design, survey methodology, data
analysis, report writing, sampling, and research management.
During the past 10 years, she has led evaluations of the E-
Verify program and its precursor programs. Prior to her work at
Westat, she worked at Temple University, the National Science
Foundation, and the U.S. Department of Health and Human
Services. She has a Ph.D. In sociology with a major in research
methods and statistics from the University of Wisconsin,
Our next witness is Tim Sparapani--if I mispronounced your
name, pardon me--senior legislative counsel for the Washington
Legislative Office of the American Civil Liberties Union. Mr.
Sparapani focuses on protecting the right to privacy, defending
the rights of immigrants, and shielding civil liberties in
national security matters. His effort focuses on preventing
violations and unnecessary intrusions into Americans' privacy
by both Government and private organizations and individuals.
Mr. Sparapani also monitors the effect of Federal, State, and
local national security policy on civil liberties to ensure
that Americans remain both safe and free.
Next, I am pleased to welcome, Chris Williams, a Chicago
attorney who is currently the executive director of the Working
Hands Legal Clinic and has extensive experience in the areas of
labor and employment law. Prior to practicing law, he worked
for over a decade as director of organizing for Chicago area
labor unions. He also served as director of the Chicago Workers
Collaborative. Mr. Williams has worked extensively with worker
centers on issues related to the abuse of Employment
Eligibility Verification Systems and no-match letters.
And, finally, our the last witness is Glenda Wooten-Ingram,
who has worked in the hospitality field for over 20 years, the
vast majority of which she has spent as a human resources
director in the Washington, D.C., area. Ms. Ingram has been
with Embassy Suites for the last 4 years as its director of
human resources. She has been certified by the Society of Human
Resource Management for over 9 years.
As with our other panel, your full written statements will
be made part of our record. We would ask that your testimony be
about 5 minutes, so that we will have an opportunity to ask
And, Dr. Shettle, we will begin with you.
TESTIMONY OF CAROLYN F. SHETTLE, Ph.D.,
SENIOR STUDY DIRECTOR, WESTAT
Ms. Shettle. Madam Chairman and Members of the
Subcommittee, I want to thank you for inviting me here today to
talk about Westat's September 2007 evaluation report of E-
Verify that we've conducted under contract to USCIS, though I
have heard so much today about our report. I am not sure I have
a lot to add.
Anyway, the focus of my remarks today are on the particular
emphasis that this panel has, and I am going to talk about
noncompliance, discrimination, and privacy. I will talk first
about what we found at the time of this evaluation, which is
some time ago, and then I will talk about observed and future
As far as employer noncompliance goes, we did find
substantial noncompliance, and the findings for the most part
were based on employer self-reports which we have evidence to
believe are underreported noncompliance. There is substantial
noncompliance. In terms of a particular example, I think you
already mentioned, 22 percent of the employees suffer some kind
of adverse action to job restriction, and we have other
examples of pre-screening and reduction in pay, and so on.
As far as discrimination goes, that is a complex issue that
has been hotly debated since the beginning of employment
verification. We did find evidence on both sides, and I think
some of this has been quoted today.
As far as the good news in terms of reducing
discrimination, we found that 19 percent of the employers we
asked said they were more willing now than they were prior to
the program and 4 percent said that they were less willing to
hire immigrants. And this leads to the conclusion that there is
a net decrease in discrimination at the hiring stage because of
The bad news, though, which I think we've also been
hearing, is that foreign born workers that are more likely to
receive a tentative nonconfirmation prior to being work
authorized. And this particular error rate has been quoted a
For those who were work-authorized, and only for them, what
percentage go through a tentative nonconfirmation process
before receiving a final confirmation as work-authorized; the
error rates for all work-authorized employees would be higher.
We know it spirals downward.
It is very difficult to estimate that, though, because for
the ones that don't finish up the system, we don't know what
percent are work-authorized and what percent are not. As you
have heard, the rate is particularly high among naturalized
citizens at around 10 percent compared to U.S. born folks where
it is one-tenth of a percent, or one out of 1,000, and
noncitizens are in between.
Even if employers were completely compliant, these
discrepancies and error rates would be, de facto
discrimination, maybe not by employer intent, but because
employees have to go through additional hurdles to get their
We have seen over time a number of improvements in
noncompliance and in terms of the error rate.
I skipped over the privacy issue, which we don't have so
much of in terms of results. We did question the lack of
security in the registration process, as you noted. And we also
mentioned that employers do not consistently convey information
in a private setting. And one example of that was employees who
noted that their employer just posted a list of people who they
said were not work-authorized.
As I said, there have been improvements. Some of the
improvements can be attributable to changes in worker and
employer characteristics as we go from a small program in five
States with high immigration populations to the full volunteer
program we have today. But there are also improvements that we
believe are attributable to program changes, and we just heard
from DHS about those.
In the future, we expect that there will be some more
changes due to programmatic improvements. What we don't know is
what will be the impact if we go to a mandatory program on the
whole system, in particular employer compliance, since it is
reasonable to believe that pulling in people involuntarily will
create a worse problem than we have now.
Ms. Lofgren. If you could wrap up, please.
Ms. Shettle. Yes, in sum, we do see problems that U.S.
citizens and noncitizens with work authorizations are affected
negatively. We've seen improvements over time, in part because
of program changes that are ongoing. And the biggest question
is the question of mandatory. Things may change. We can't
predict what is going to happen there.
And, Madam Chair, I would like to thank you and the
Subcommittee for listening to me. And if people want more
information about this report or prior reports, I refer you to
the USCIS Web site that has the report.
[The prepared statement of Ms. Shettle follows:]
Prepared Statement of Carolyn F. Shettle
Ms. Lofgren. Thank you very much.
TESTIMONY OF TIMOTHY SPARAPANI, SENIOR LEGISLATIVE COUNSEL,
WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION
Mr. Sparapani. Imagine the horror of a constituent who is
unable to start any new job due to Government bungling and
bureaucracy. This horror show would surely confront thousands
of workers upon implementation of an E-Verify type system.
Denied their right to work lawfully, these workers would
quickly fall into economic distress.
Chairwoman Lofgren, Chairman Conyers, and Ranking Member
King, the ACLU urges Congress to refuse to mandate a system
that would create a new ``no work list'' like the infamous ``no
fly list'' populated by thousands of Americans wrongly blocked
from working by their own Government. The costs associated with
mandatory electronic screening cannot be overstated, and any
benefits are speculative at best.
Proponents tout electronic screening as a technological
cure all for beleaguered American workers who fear for their
jobs and wages. However, mandatory electronic screening would
impose unacceptable burdens on America's workers and businesses
without resolving the immigration dilemma, because it cannot
prevent the hiring of undocumented workers.
I will focus on two reasons to oppose electronic screening.
One, mandatory screening will invade American workers' privacy,
vastly increasing, not decreasing, the incidents of identity
theft and document fraud by turning identities into black
market commodities. And, two, mandatory screening will entangle
American workers in a massive knot of Government red tape, both
to get hired and resolve data errors. And that is all because
of the poor data quality we've heard so much about this morning
and the problems with administrative judicial redress, which we
haven't yet talked about.
Mandating electronic screening will endanger law-abiding
Americans' privacy because it makes a work-eligible identity a
highly valuable commodity and creates a black market for those
identities. Requiring Government permission to work will leave
some desperate undocumented immigrants and those smuggling and
illegally employing them to steal work-eligible American
identities. In short, E-Verify will increase, not decrease,
Similarly, Government databases will be targeted by
identity thieves because they contain workers' identity data.
No database can be entirely secure from hackers. And the
Government's information security track record is poor at best.
This privacy threat is wholly unnecessary, because E-Verify and
similar systems are so easily evaded by ineligible workers
presenting fake documents. Neither employers nor Government
databases would detect this fraud.
Congress should ask, why endanger Americans' privacy if it
will not prevent the hiring of undocumented immigrants?
The ACLU also opposes electronic screening unless the
Government is forced to rapidly correct data errors and
compensate workers its errors injure. The ACLU again foresees a
new ``no work list'' consisting of those eligible employees who
cannot work because of data errors and Government bureaucracy.
Congress should not mandate pre-screening, but it should
require SSA and DHS to systematically review files to eliminate
errors. Only after systematically improving data should
Congress consider mandating pre-screening eligibility.
Workers injured by data errors will need quick, permanent
resolutions so they do not become presumptively unemployable.
Any legislation must allow workers to easily access and
correct erroneous Government data. SSA and DHS must hire
sufficient staff to handle the millions of additional worker
inquiries they will surely receive.
Congress must also provide fair administrative and judicial
procedures to resolve errors promptly to get workers back to
work. None of the pending proposals, unfortunately, promise
Any worker challenging erroneous Government data deserves a
presumption of work eligibility. The Government should bear the
legal burden to demonstrate a worker's ineligibility rather
than forcing the worker to prove his or her eligibility. After
all, no undocumented worker would fight two Federal agencies
through administrative and judicial procedures for fear of
being caught and deported. It is just simply illogical to
imagine that kind of scenario. Therefore, administrative law
judges should be empowered to order records correction and
reimbursement of workers costs plus lost wages and interests.
The Government should bear costs to minimize workers' injury.
We recommend a strict liability standard for Government errors
to encourage the Government to improve its data quality.
Finally, if the administrative process fails, then workers
need court access. Because suing is expensive, the Government
must bear costs for any judicial process, and workers should be
reimbursed for lost wages and opportunities plus interest.
In conclusion, failure to mandate real administrative and
judicial redress will surely result in a list of employees who
are lawfully eligible to work but whom employers are unable
lawfully to employ. This black list will truly be a ``no work
list'' that will endanger American workers' privacy and their
right to work. Thank you.
[The prepared statement of Mr. Sparapani follows:]
Prepared Statement of Timothy Sparapani
Ms. Lofgren. Thank you very much.
TESTIMONY OF CHRISTOPHER J. WILLIAMS, ESQUIRE, DIRECTOR,
WORKING HANDS LEGAL CLINIC
Mr. Williams. Good morning. I want to thank you, Madam
Chairwoman, and the Subcommittee for the opportunity to speak
As mentioned, I am an attorney in Chicago. I work with a
nonprofit organization that assists low-wage workers
predominantly in the temporary staffing industry. And I think
the perspective I can bring today is how the E-Verify program
and other employment eligibility verification systems are
affecting people on the ground. And I submitted written
testimony, so I won't repeat that here.
But we've heard a lot of numbers thrown around about
accuracy rates and so forth, but I think there is something
that has been given a little bit short shrift, which is the
role of employers in this system. Because employers are a very
important part of the verification system. They play a role,
and then those numbers have to be counted in. You heard a claim
that there was a 0.5 percent error rate. You heard a claim that
not one person has been denied employment because of the E-
Verify system, and that is just not accurate.
First of all, the system is based on the Social Security
Administration database which, by all accounts, has 17 million
or more errors. And I personally have a little history with
that. I just received my newborn daughter's Social Security
card, and my last name is her middle name, and it was spelled
with three Ls, and my name is spelled Williams with two Ls. So
it is very common to have an error in the Social Security
You couple that with employers not--being resistant to
participating in these employment verification system programs.
Right now it is voluntary. With all of the errors and problems
we've heard about, these are employers who are voluntarily
participating in this program. You mix that--you roll this out
to be mandatory, you mix that with employers, small employers
who do not want to participate, small employers who do not want
to play this role, who do not have the resources to access the
proper legal advice, you are going to have a disaster.
And I do know somebody who has been denied employment. His
name was Fernando Tinoco. He was a client of mine. He went, and
he applied for a job at a Chicago poultry plant. And he came
back a tentative nonconfirmation. He was given the information.
He went to Social Security Administration. He got the necessary
documents to show he was eligible to work. The company didn't
want to take him; it was too risky.
Then I know another person, Abel Pacheco. He lost his job,
went out and applied at eight different locations. Finally, he
applied at the eighth location, was told he got a tentative
nonconfirmation. He never heard back from the first seven. Now,
did they all check his status? Did they all check E-Verify, and
did they determine that he was not eligible to work? Did they
pre-screen him? This is a problem that is not to be reported.
With all the problems we heard about in the Westat report, this
is a problem we are not going to hear about in any report. This
is a serious problem where employers have the ability to check
and pre-screen. We know this is happening, even from self-
reporting, that the rate is high. Without self-reporting, we
don't know how high the rate is. But employers who are
resistant to participating in a mandatory program anyway and
who are risk-averse are just going to make the decision, why
bother? Just don't hire the person. And that is a problem.
Somebody mentioned earlier the Social Security no-match
letters. And I realize that is a different thing. E-Verify is
something done at the time of hire. Social Security no-match
letters come out and when somebody is employed and working. But
they both depend on the same flawed database. And I have dealt
with literally thousands of workers who have been wrongfully
terminated by employers, sometimes quite honestly innocently by
employers who receive a no-match letter. And there are
safeguards in place with the no-match letter. The no-match
letter itself says, ``this is not an indication of someone's
immigration status.'' The employer just makes a determination.
They see on the news. They read in the paper, employers are
getting arrested. It is easier just to get rid of the employees
than to deal with the mess.
Some of them find their way to me or other organizations
like ours, and they get assistance, but most of them do not.
Some employers, I have sat with them, and one employer fired 30
workers, all Hispanic. He told me, well, I got one of those no-
match letters. So under Illinois law, we requested a copy of
the no-match letter. Well, you know, we don't really have them.
But there are other ways to check people's Social Security
Well, what are those other ways of checking those Social
Security numbers? Did he use the E-Verify program? What is
USCIS doing to make sure that he did not pre-screen, he did not
check current employees? What are they doing to make sure that
these employees are not being victimized by employers who are
abusing the system? Do they even know? Is there a way to know?
And I think the answer to that question is, no, there is really
not a way to know.
The system should not be rolled out. It should not be made
mandatory until the databases that it depends on are accurate.
Thank you very much.
[The prepared statement of Mr. Williams follows:]
Prepared Statement of Christopher J. Williams
Good morning. My name is Chris Williams. I am the Executive
Director of the Working Hands Legal Clinic in Chicago. Our Legal Clinic
assists vulnerable, low wage workers confronting the most abusive and
exploitative practices in the workplace, everything from stolen wages
to discrimination. First, let me thank you for your invitation to speak
before this distinguished committee.
I am here today to express our organizations concern about
proposals to expand the use of Electronic Employment Verification
Systems (EEVS), such as the E-Verify program. The E-Verify program,
currently a voluntary program, requires participating employers to
verify whether newly-hired employees are eligible to work in the United
States through the use of an internet-based program. When a
participating employer enters a worker's basic identifying data into
the E-Verify system, the data is checked against databases maintained
by the Social Security Administration (``SSA'') and the Department of
Homeland Security (``DHS''). The SSA database is supposed to tell
whether a particular worker is a U.S. citizen or work-authorized
immigrant. If a worker is not a citizen and does not appear on the SSA
database, the DHS database is supposed to tell whether the worker is
authorized to work in the United States. The E-Verify program is being
touted as an effective means of eliminating employment by undocumented
immigrants but too little attention is being paid to the negative
impact the program is having on U.S. citizens and work-authorized non-
citizens, a problem that will only be exacerbated by expansion of this
or other EEVS programs.
The E-Verify program, formerly called ``Basic Pilot'', has been
plagued by serious problems since it was first introduced in 1997.
First, this EEVS program relies on government databases that have
unacceptably high error rates, misidentifying work-authorized workers
as not employment-eligible. Specifically, a December 2006 report by the
Office of the Inspector General for the SSA estimated that 17.8 million
of records contained in the SSA database, the primary source of
information for the E-Verify program, contain discrepancies related to
name, date of birth, or citizenship status.\1\ Such discrepancies
result in a ``tentative non-confirmation'' of eligibility for
employment under the E-Verify program. According to testimony from the
GAO to a 2008 subcommittee of the House Ways & Means Committee, the E-
Verify program was not able to automatically verify the work
authorization of approximately 8 percent of workers whose information
is submitted to E-Verify. This is the same error rate that was found in
the Westat report commissioned by the Department of Homeland Security
and released in September 2007.\2\ The worker then becomes responsible
for resolving the issue with Social Security or with DHS. If the worker
does not resolve the problem quickly, he or she faces termination. When
the E-Verify program's databases fail, U.S. citizens and work-eligible
immigrants pay the price as they are put on what essentially amounts to
a ``no-work list.''
\1\ CONGRESSIONAL RESPONSE REPORT: ACCURACY OF THE SOCIAL SECURITY
ADMINISTRATION'S NUMIDENT FILE (Office of the Inspector General, Social
Security Administration, Dec. 2006).
\2\ FINDINGS OF THE WEB-BASED BASIC PILOT EVALUATION (Westat, Sept.
Employer misuse or non-compliance with the E-Verify program rules
is a second and, in my view, more insidious problem. The 2007 Westat
evaluation of Basic Pilot/E-Verify found that the rate of employer
noncompliance with the program rules is ``substantial'' and
``diminishes the effectiveness of safeguards designed to protect the
rights of work-authorized employees who obtain erroneous tentative non-
confirmations.'' \3\ The report found that ``the rate of employer
noncompliance [with the program rules] is still substantial.''
Specifically, employers engaged in prohibited employment practices,
including: (1) pre-employment screening; (2) adverse employment action
based on tentative non-confirmation notices; and (3) failure to inform
workers of their rights under the program. And the effect is particular
hard on work-authorized foreign-born workers, since, as the Westat
report points out, these workers are 30 times more likely than U.S.-
born to receive erroneous tentative non-confirmations (nearly 1 in 10)
initially receive tentative non-confirmations).\4\
\3\ Id. at note 3, at xxi.
\4\ Id. at 71-77.
I believe the case of Mr. Fernando Tinoco, one of my clients, is
illustrative of this problem. Mr. Tinoco is an immigrant from Mexico
and became a citizen of the United States in 1989. He applied for a job
with an employer in Chicago that used the E-Verify program. After
submitting his information through the EEVS program, the employer
received a tentative non-confirmation notice. Mr. Tinoco challenged the
tentative non-confirmation and was required to go to the SSA himself to
clear the matter up. But even after SSA acknowledged the error and
provided Mr. Tinoco with the necessary documentation, the employer
refused to employ Mr. Tinoco.
In Mr. Tinoco's case, we were eventually able to resolve the issue
because his employer had informed him of the tentative non-confirmation
from the E-Verify program and he was able to successfully challenge the
determination. But, according to the Westat report, 47 percent of
employers, nearly half, had pre-screened workers through E-Verify
system and, unfortunately, there is no way to account for how many
employers, when faced with a tentative non-confirmation, simply choose
not to hire the person.\5\ There is simply no way for a potential
employee to know this and no effective safeguards to prevent this
\5\ Id. at 71.
My experience with employers' reaction to ``No-Match'' letters from
the SSA tells me that this type of problem is already underreported and
will only be exacerbated by expansion of the E-Verify or other EEVS
program. While SSA No-Match letters are different than the E-Verify
program, both rely on the same flawed SSA database. (A No-Match letter
is generated by SSA when a worker's identifying information remitted to
the Social Security Administration does not match the information
contained in the SSA database and, if not deliverable to the
individual, is sent to the employer.)
Our legal clinic has had to respond to firings of literally
thousands of workers in and around Chicago over the past two years
based on misapplication or misunderstanding of the E-Verify program
and/or SSA No-Match letters. One employer who fired 30 Hispanic
employees initially told me that the terminations were based on receipt
of a SSA No-Match letter, but later, after the employees had requested
copies of the letters under Illinois law, admitted there were no such
letters, stating instead that there were other ways to check the social
security numbers of his employees. None of the affected employees was
told the basis of the termination, much less given the opportunity to
challenge any tentative non-confirmation. Another small employer of 50
homecare health workers fired fully half of her employees. When
challenged on the basis of the terminations, she told me ``Well, I've
been reading the newspaper and I thought that is what I was supposed to
do. I thought I had to get rid of anybody who might be working
There are over six million employers in the U.S., many of which are
small, have no human resource staff and limited resources to get access
to legally accurate information and even less time to become compliant
with a mandatory EEV system. Many employers will be ill-equipped to be
the frontline of immigration enforcement and by expanding the use of an
EEVS system, the law will be applied in an uneven and, too often,
unfair way. Coupled with the inaccuracies in the databases underlying
the EEV system, the inevitable result will be that an unacceptably high
number of legally authorized workers will lose their livelihoods.
Simply put, employers should not be charged with the responsibility of
enforcing immigration law through these EEV systems. Most do not want
to expend the time and resources to do so, and have neither the
expertise nor tools to do so correctly or legally.
Ms. Lofgren. Thank you.
And now we turn to our final witness.
Ms. Ingram, we would like to hear from you.
TESTIMONY OF GLENDA WOOTEN-INGRAM, DIRECTOR OF HUMAN RESOURCES,
EMBASSY SUITES CONVENTION CENTER
Ms. Ingram. Well, it is afternoon.
I have been in the human resources department for almost 20
years, and I have also been using this system since it first
came out. And for me, as an employer, it helped me because I am
not an expert in looking at the documents. And we all look at
the documents, and we can say they are legal or whether they
are not, and this system it does help.
But the one thing that, from the employer and for the
company that I have worked for, we have a system in place that
you can't pre-screen. You can't tell someone, show me your
documents before you interview them; show me your documents
before I make an offer to you. That process is not done until
after we sit down, we've interviewed the candidate, we verified
their employment, they have gone through our background drug
test, et cetera, and we make an offer.
And once they come in, they get their new hire paper, and
that is part of their new hire paperwork. The new hire
paperwork has the I-9 form attached, and it asks them--we don't
tell them what document to choose, they have their choice from
A, B, C, whichever document they choose. And then, once they
fill the form out, then we put it into our Basic Pilot, or now
known as E-Verify, system, and we wait for whether there is
going to be a confirmation or a nonconfirmation. Those
documents are kept in a file, confidentially, where no one can
get access to them unless they are in the human resource
If we get a nonconfirmation for a--we call them team
members instead of employees--we basically bring that
individual into the office, into the privacy of our office, and
we sit down with them, and we explain it to them: This is what
we received. Here's what you need to do. You have a choice, you
can make a phone call, or you can go down. We read it to them.
We tell them they have 8 days. They can still continue to work.
This does not affect--they don't have to be suspended pending
further investigation or anything. They continue to work. Once
they get the document, we go back into the system and confirm,
and then that is fine.
We have had some team members that have chose not to
contest it, and so they leave. But we still encourage them, you
know, if you feel that your documents are correct, please make
the phone call. If it comes back that we still can't get a
confirmation and we have to do a termination, we don't say, you
can't come back here. We say, once you get your files together,
your documents together, you are more than welcome to come back
and reapply for the job. And that happens to every single
person that comes in, after they fill out--they go through that
process with us.
. So I am confident for the company that I work for and my
colleagues that we do follow those procedures. And every year,
we are audited by our own company to go into our I-9 files to
make sure. And when you are printing that data off, it has a
date. So you are going to look at the date to say that you
couldn't have pre-screened because you have the date that the
person actually hired; you have your PAF that shows the date
that you hired the person; and you have the date the
confirmation was done. But we are audited by our company as
well to make sure that we are in compliance.
I think it is a great system to work with. And it is great,
and I think that that is another tool to help you to ensure
that you are in compliance.
[The prepared statement of Ms. Ingram follows:]
Prepared Statement of Glenda Wooten-Ingram
Dear Distinguished Members of Congress, I am Glenda Ingram,
Director of Human Resources for the Embassy Suites Convention Center.
Thank you for this opportunity to come before you today to speak of my
experiences with the E-Verify program. As a Hotel Director of Human
Resources in the Washington, DC area for more than twenty years with
the last four years at the Embassy Suites Convention Center I have seen
the benefits and the need for this program.
Since the late 1990's I have been working with E-Verify, then a
pilot program, it is very easy to use and relieves many Human Resources
Departments and Companies of the burden of proving a potential new
hire's eligibility to work in the United States. In fact, during the
interview process we can not ask for proof of eligibility to work in
the United States. Using E-Verify helps the employer to verify that a
new hire's documents are in order and keeps the employer in compliance
with the laws.
E-Verify provides documents to the employer to be used when an
employer receives a non-confirmation notice regarding a new hire. The
new hires document is stored in the system ready for the employer to
print and present to the Social Security Administration and Department
of Homeland Security upon request. We review this document with the new
hire for them to make a decision to contest or not to contest the
validity of the information.
In August 2005 when we were opening the Embassy Suites we hired 175
new employees using the E-Verify program. During the hiring process we
posted notice and verbally told each potential new hire that we
utilized the E-Verify program. I firmly believe that this helped us to
eliminate hiring applicants who did not have the legal paperwork
required to work for the hotel.
Currently this notice is posted in the Human Resources Department
for all employees and applicants to read and ask questions. This
deteriorates applicants from applying for positions knowing their
paperwork is not legal. Using this procedure has saved our company a
lot of money in time verifying information on the application,
verifying past employment (which can sometimes take days), on drug
tests, training and when found out, re-advertising the position.
Illegal paperwork is usually not found out until after they have
been hired and completed the I-9 form. The E-Verify process takes less
than 5 minutes to input and receive a confirmation or non-confirmation.
If a non-confirmation is returned we bring the new employee into the
private office, inform them of the results, explain the procedures,
give them the opportunity to contact the authorities and rectify the
paperwork. We ensure them that they are not being terminated and they
can continue to work while working on the solution.
Once they return with the proper paperwork, we re-enter it into the
system and in most cases they are confirmed. Many of the problems we
encounter are data entry errors such as misspelled names, incorrect
date of birth or social security numbers. This system does not
discriminate against anyone since every new hire must provide proof
they can work in the United States, complete an I-9 form and entered
In closing, I believe that in my 10 or more years of using E-Verify
that it is an invaluable business tool; the cost is free; is easy to
teach (including President Bush); is very user friendly and the support
system is very helpful.
Beyond the most obvious reasons mentioned above I firmly believe
that E-Verify has prevented us from hiring illegal's and staying in
compliance with the law. This is a program all Companies should use.
Thank you for your time and this opportunity.
Ms. Lofgren. Thank you very much.
Now is the time we will have a chance to ask a few
questions before we conclude, and I will begin.
One of the things that struck me, we are all trying to get
our heads around this subject and making sure it is right. But
if you are an immigrant or a naturalized citizen, there's going
to be records with pictures in DHS. But if you come in and you
say you are Jane Smith and an American citizen, and you have
got the Social Security number, and you stole that I D from the
real Jane Smith, I don't see how the bills before us really
uncover that fact.
Can you comment on it?
Mr. Sparapani. They don't, and they can't. And that is part
of the problem with not only E-Verify but all the other pending
legislative proposals. Despite the fact that this program
concept has been around for 30 years, really since 1978, we
really haven't been able to resolve this underlying problem of
document fraud. And it is going to bedevil this program.
Ms. Lofgren. There is no database of every American with a
picture or biometrics.
Mr. Sparapani. And I say thank God for that.
Ms. Lofgren. I am not arguing yea or nay. I am just noting
Mr. Sparapani. And that is exactly right.
Ms. Lofgren. Let me ask, in terms of the one suggestion I
think that Mr. Johnson and Gifford's bill is suggesting as a
potential remedy for that is to use something like the Clear
Path System that does collect biometrics but also has an ID
fraud component to it. Do you think that would advance that
effort? Whoever wants to answer.
Mr. Sparapani. I don't. And there are lots of reasons for
that. One, every time we put private information into even
private hands in this case, we run the risk that that data is
going to be compromised. And, again, there is no database which
has been proven to be secure. The hackers are always at least
one step, usually many steps, ahead of the best information-
security protocols, and that is because they have an economic
incentive to breach them. Therefore, we can always expect that
data is going to be compromised, that people's identities are
going to be stolen. So we think that this is sort of a
misdirection to go down, to try to focus on identity as the key
to doing immigration enforcement. I think it leads you down a
series of paths which sound promising but when they actually
get to implementation are very difficult to actually pull off,
and actually provide a weakness that has never been overcome
Ms. Lofgren. Ms. Shettle, do you want to comment?
Ms. Shettle. I don't really have a lot to comment on.
Ms. Lofgren. Okay, that is fine.
It seems to me that we want to have a system that is
enforceable, that works, where only those who are legally
permitted to work are working. But we don't want to have the
adverse consequences. We don't want Americans to be denied jobs
or other people who are legally permitted to work to be denied
jobs. We certainly don't want whatever system that we create to
be used for improper purposes such as discriminatory purposes
or the like.
I just was remembering, if the stakes are very high for an
employer, they are going to fire people to protect themselves.
I remember, we had Swift in here last year, and they sort of
had the worst of both worlds. They were first charged with
discrimination because they were looking at Latino employees,
which they shouldn't have done. So they stopped doing that. And
then they had employees that weren't lawfully permitted to
work, and they lost $40 million after the enforcement action.
So which way do you do?
We want to have a system that works well. Do you see any of
these bills before us--I don't know if you have had a chance to
study all of them--that might avoid the adverse consequences of
either use for labor or discrimination, but also allow
employers to have confidence that they are doing the right
Mr. Williams. The one thing I would say, and this point was
made earlier, is I think that there is a flaw in the idea that
you can just deal with one aspect. There has to be
Ms. Lofgren. I agree with that.
Mr. Williams. And so you are going to end up in these
problems, because there is a lot of pressure on employers and
employees in terms of getting work.
What I see, one of the things we see in Illinois is the
increasing use of temporary staffing agencies as a way of kind
of laundering people through.
Ms. Lofgren. So the liability isn't to the employer.
Mr. Williams. Moving liability away, along with all other
sorts of labor rights and standards that go along with it.
Just as my colleague said, the hackers are always one step
ahead. There is always going to be a way to get around the
system, and they are going to move around the system.
And so I think what we are trying to do is we are trying to
fix one aspect of this without fixing the overall problem. You
know, employers need the workers, and they are going to find a
way to find them.
Ms. Lofgren. Before turning to Mr. King, I will just note
that I think, Mr. Sparapani, the burden-of-proof idea I find
intriguing because I think you are right, Americans should have
a right--I mean, we have a right to go support our families.
And I think your observation is probably correct. If there is a
contested thing, I mean, people who are here without their
documents tend to want to go underground. They don't want to be
found. It is unlikely, I would guess, that they are going to
walk into court and contest the finding. Instead, they are
going to high tail it and try to find some other job. So that
is an intriguing idea.
I turn now to Mr. King.
Mr. King. Thank you, Madam Chairman.
You know, as I sit here and listen, a few thoughts cross my
mind. And one of them is that for every single illegal person
working in the United States of America, there is a
corresponding disenfranchised American somewhere either looking
for a job or earning less wages and benefits than they would
otherwise, because the law of supply and demand certainly
directs the value of labor and benefits.
And so we are here wallowing around and looking for some
kind of guilt about maybe disenfranchising a single person when
we know that for every illegal that slips through the system,
there is at least one corresponding disenfranchised America or
legal worker in the United States who is here lawfully and can
work here lawfully.
Another point that I would give is that this self-imposed
guilt about profiling is national idiocy. It has always been an
important part of law enforcement. And if you put out the
identification of a person who has committed a crime in the
neighborhood and you can't use those characteristics to
identify that person, we've opened ourselves up for those
crimes to be committed over and over again.
No, I don't think we should go out and discriminate against
people based upon their race or their ethnicity or those
outward appearances. I think you ought to have a right to work
in this country if you are legal. But we can't say to the
American people, you can't be prudent. You cannot profile, you
cannot stereotype someone. That is something that has been--
that message gets sent constantly, and I think we need to be
smart about what we do.
And with regard to the concern about the previous
testimony, the Chairman's remarks about, well, the 40
prosecutions referred through ICE last year of employers that
abuse E-Verify, one so far this year, that is 41. I think I can
fix just about all of those, and I would say this: Let's
legalize the use of E-Verify for employers so that if a job
applicant presents their INI and information, it is implicit
that they are asking you and giving you consent to go out and
use E-Verify. If they are willing to give you the data on I-9,
why aren't they willing to accept the data that comes back on
E-Verify? We can solve a lot of these problems that way. It
would be face to face up front. When I hire employees, I look
them in their eye. I look at their drivers license. I look at
their data, and I ask them questions, because they are the
people that I am going to entrust the profitability of my
And so I think that is the responsible thing. I presume the
employer is responsible, not unethical, and I think we can
operate with that presumption.
So then, Dr. Shettle, I wanted to ask this question to you.
What percent of illegals are erroneously approved by E-Verify?
That is a subject that I don't think has been addressed today.
Do we know the answer to that?
Ms. Shettle. We don't have a good estimate of that. The
problem is that there is no way for us easily to say who is and
who isn't work-authorized beyond what the system comes out
with, which is why we are using this error rate based just on
those found work-authorized. We are hoping to look a little
more closely at this in our next evaluation where we are doing
many more interviews with employees who received tentative
nonconfirmations regardless of whether or not they were
Mr. King. Let me ask, Would they fit in two categories,
those approved erroneously by E-Verify? And one category we
know about would be those who presented false documents that
belonged to a person who was legally working in the United
States. We know that that exists out there. We don't know that
number, but it could be huge, and we think it is. And then
another category perhaps we haven't talked about, could that be
those who have--who would not be lawful to work in the United
States who have somehow created a database that identifies
them? Do we know anything about that particular category?
Ms. Shettle. That----
Mr. King. Let's just say, are you aware of any creation of
data that would support someone's employment who was illegal
that might be unique to them? For example, a digital photograph
on a green card of someone who has circumvented the system and
gotten into the database that could then 1 day become a
citizen, get a passport, because they have created the
foundation for their false identity.
Ms. Shettle. I don't have an estimate of how frequently
that happens. But we definitely know that some people not in
the country legally do go get a drivers license using false
breeder documents, which are documents that are much less
reliable, like a birth certificate where you don't have a
picture and so on. So, yes, definitely that can happen. How
often it happens, I couldn't tell you.
Mr. King. Thank you.
Ms. Ingram, I want to especially thank you for your
testimony. I know when you took this job on, you surely didn't
expect to be sitting before Congress testifying, and I
understand that, and I appreciate that.
But the question that I have to ask you is, you mentioned
that your company audits your attempts to use E-Verify. And is
there a corresponding verification that records each of your
attempts on the database of E-Verify that can be used to
validate your company's audit to make sure that you are not
using E-Verify until there is a legitimate job offer?
Ms. Ingram. Yes, we have our own forms, and then the form
that is printed from E-Verify to confirm or nonconfirm. We keep
all the documents that we have attached to the I-9 form with
any notes that we may have that we contacted this person, we
talked to them, they came back, or whatever information we've
had with the team member.
Mr. King. And E-Verify has that data, too?
Ms. Ingram. Yes.
Mr. King. Thank you very much.
I yield back.
Ms. Lofgren. The gentleman's time has expired.
We have been called to the floor for votes, but before we
do, we want to turn to Chairman Conyers for any questions.
And also, I don't know if, Mr. Conyers, you weren't here
when we did opening statements. If you wanted to do an opening
statement, you are welcome to do that as well.
Chairman Conyers. Well, thank you very much. I think this
has been a very important hearing.
Let me ask you about verification. Should we make it
mandatory, do you think, Ms. Ingram? Or are you ready to leave
Ms. Ingram. I think it is a good option for me. In our
company, everyone uses, all our properties use E-Verify. So,
yeah, I do. That is my belief. I am not speaking on behalf of
my company, but I believe that it is a good system to use.
Chairman Conyers. Mr. Williams, what do you think?
Mr. Williams. Well, I applaud Ms. Ingram's company for
having so many safety checks in place. I know that is not the
standard, and I know if you roll it out past the voluntary use
right now, you will have employers even more resistant.
And one little side note. I apologize if I wasn't clear.
The people I was talking about, Mr. Tinoco, Mr. Pacheco, are
legally authorized to work, are as American as Ms. Hong and my
Chairman Conyers. Dr. Shettle, where do you come down on
the mandatory part of this discussion?
Ms. Shettle. As an evaluator, I feel that this is not
something that I should be giving an opinion. As documented in
our report, there are advantages and disadvantages. And I think
that the trade-off decision is yours.
Chairman Conyers. Mr. ACLU.
Mr. Sparapani. The consequences of doing mandatory
screening are going to be extraordinary. And when we design big
Government databases and systems that are going to apply to
every worker in America, we have to write the law in such a way
as to think about that odd case. We have to think about those
extraordinary individuals whose data doesn't work, because
those are the weaknesses that will be exposed.
When you take a system like this nationwide for every
worker, it's going to be a huge set of problems, and Congress
has to have that squarely in mind before it does anything at
Chairman Conyers. Especially if you include everybody that
works in America. I don't need a calculator to add 163 million
and 12 million.
And so I am working on the Steve King theory. Well, he has
got two theories here that he has left us to concern ourselves
with. One is that every one of the 12 million people who have
taken somebody else's job, or one for one, now, that presumes
that there are a lot of people looking for stoop labor, that
want to be seasonal employees, that want to work below minimum
wage, without a union. And I am going to be learning more about
that as the immigration theories continue.
Then he has the most challenging theory of all, the
presumption of employers' good intentions in terms of hiring
these people that are the 12 million. I presume that most of
these employers are trying to do what people in a capitalist
system always like to accomplish. But we have found that where
there are immigration circumstances involving employment, there
are a lot of rascals that are employers. I hate to say this on
the record, but these are--some of these folks, the things that
they are pulling are shocking. And I used up all my shock
quotients; my shock allotments for the month have all long
gone. But we cannot--I don't know if we are ready to presume
this theory of the presumption of good intentions of employers.
That is going to have to be scrutinized by the Immigration
Committee very carefully.
I yield back, Madam Chair.
Ms. Lofgren. At this time, all of our time has expired, and
we are required to go to the floor to vote.
Let me just thank each of the witnesses here for sticking
with us. I know it has been a long day, but your information is
very helpful. And a lot of people watching don't realize, you
are volunteers. You are just here to help the Congress get this
right, and we do appreciate your contribution.
If we have additional questions, we will forward them to
you. And if that happens, we would request that you answer
those questions as promptly as you can.
Chairman Conyers. Madam Chair, and none of them required
any subpoenas, either.
Ms. Lofgren. That is correct.
And the record of the hearing will be opened for 5
legislative days for Members to submit additional questions,
and that is without objection.
Now we will adjourn this hearing with thanks to all of the
[Whereupon, at 12:57 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
I would like to welcome the Subcommittee Members, our witnesses,
and members of the public to the Subcommittee's hearing on electronic
employment verification systems, otherwise known as EEVS, systems which
if made mandatory as some have proposed, would affect all 163 million
U.S. workers and 7 million employers in the United States.
In this hearing, I look forward to examining how U.S. workers may
be impacted by a mandatory EEVS and explore ways to protect U.S.
workers from unintended consequences of EEVS errors and/or misuse.
Last year, the Immigration Subcommittee held two hearings on
employment eligibility verification systems in the context of
comprehensive immigration reform. The first hearing on April 24, 2007,
examined the problems with the current paper-based and electronic
employment verification systems. The second hearing, on April 26, 2007,
explored proposals to improve employment eligibility verification, with
emphasis on EEVS. At the time, four bills mandating the use of an EEVS
had been introduced in the House of Representatives in the 110th
Congress. There are now eleven bills pending before this Congress that
would mandate the use of EEVS.
Currently, the only functioning EEVS is known as Basic Pilot or E-
Verify, and it is a voluntary program. Only less than 1 percent of all
the employers in the United States are currently enrolled to use E-
Verify. In addition, the Government Accountability Office (GAO) says
that only half the registered employers are ``active'' users who have
used the system at least once.
At the current level of use, according to DHS in August last year,
E-Verify received approximately 2 million queries a year. In contrast,
if E-Verify is made mandatory for all employers, there would 63 million
queries a year just for new employees. There are many proposals that
would go beyond verification of new employees to also include existing
employees despite the fact that there are 163 million workers in the
U.S. at this time.
Therefore, before we move forward on any mandatory EEVS to include
all employers, we must be careful to ensure all the problems in the
existing EEVS are addressed before we end up with the same problems,
but on a much larger scale.
Some of the problems we hope to consider today stem from reports
produced by our own government, a non-governmental research
corporation, and universities. These reports raise serious concerns of
U.S. workers being wrongfully denied work authorization under E-Verify.
In April 2007, the Service Employees International Union (SEIU)
testified before this Subcommittee that ``[u]nless database errors are
cured, 24,000 of the 300,000 estimated workers in each congressional
district'' would be erroneously denied the eligibility to work by E-
The reports have also documented employer abuse and misuse of E-
Verify. A 2007 Westat report states that sixteen percent of employers
reported that they had failed to train all of their relevant staff on
In addition, Although the E-Verify prohibits registered employers
from using E-Verify for pre-employment screening of job applicants,
this practice is common among employers. Almost one-third, 31 percent,
reported using E-Verify to verify employment eligibility before the
employee's first day of paid work, including many who used pre-
screening at the time of the employee's application.
Employers also reported significant difficulty meeting the
requirement of verifying new employees' information within three days
of the employee's first day of work.
According to Westat, GAO, and other outside experts, anyone who
claims to be an employer can sign up to use E-Verify by signing an MOU
with DHS and SSA, thereby obtaining the ability to access very private
These are just some of the concerns raised about the existing E-
Verify employment verification system. Before this Congress moves
forward on any effort to expand this system, we must ensure that these
problems are appropriately addressed. I hope this hearing will provide
us with a thorough understanding of these problems and the opportunity
to identify ways to tackle the concerns.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
A nationwide Electronic Employment Verification System seems so
In fact, it sounds like an elegant solution to the problem of
illegal immigration: all new hires must be checked against the Social
Security and Homeland Security databases to see if they are legally
entitled to work in the United States.
But what does this System really do? Let me just cite
a few issues:
It will essentially become a giant government
database on all Americans.
It will require American workers--not foreign
workers--to be registered and checked for hiring.
It will impose a burden on small businesses, whether
their workforce is 100% American or includes immigrants.
And, it will constitute a significant step toward a
national identification card.
There are several legislative proposals that mandate a national
electronic verification system. These bills are well-intentioned, and
represent a good-faith effort to address the problem of our
dysfunctional immigration system.
But as we consider proposals to expand the verification program
from 66,000 employers to 7 million, we must keep several important
goals in mind.
First, American workers must be protected from wrongful denial of
work authorization. The Social Security database is so error-prone that
it results in the wrongful denial of more than 20,000 claims by Social
Security claimants each year.
Second, all workers must be protected from discrimination. We are
concerned that for many employers, it will be easier to just not hire
employees with ``unusual'' names or who appear foreign.
There is a risk that discrimination on the basis of race or
national origin will be covered up through claims that the employer was
simply doing electronic verification screening, and there was a
Third, the system must not be misused. Even though pre-screening
applicants is illegal under the current pilot program, nearly one-third
of employers reported using the system in this manner.
And the temptation will be great to submit the names of workers who
try to speak out about labor exploitation or abuse, so as to let the
immigration service inadvertently do the unscrupulous employer's dirty
While I am skeptical of stand-alone EEVS bills, I am not opposed to
an employment verification system that is part of a comprehensive
solution to reforming our immigration system. But we are not going to
enforce our way out of the current problem, no matter how well-designed
an electronic monitoring system may be.
Forcing Americans to drive to the Social Security office and spend
days trying to clear their name will not fix the policy or political
pressures that immigration creates. Those pressures will only be
resolved by ensuring legal and sustainable migrant flows that address
the needs of workers, employers, and families.
Accordingly, I very much look forward to today's hearing, and I
thank the witnesses for being with us.
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
Thank you, Chairwoman Lofgren, and ranking member King, for
convening today's very important oversight hearing on electronic
employment verification systems (EEVS) and the necessary safeguards to
protect privacy and to prevent misuse. With so many bills before this
Congress, this hearing could not be more timely. I welcome the
testimony of today's witnesses.
The subject of today's hearing is how U.S. workers may become
impacted by a mandatory EEVS and explore ways to protect U.S. workers
from the unintended consequences of EEVS errors or misuse. The
Subcommittee will also hear from Members who have introduced EEVS bills
and will hear how their bills would protect U.S. workers from such
misuse or errors.
Last year, the Immigration Subcommittee held two hearings on
employment eligibility verification systems in the context of
comprehensive immigration reform. The first hearing was held on April
24, 2007. It examined the problems with the current paper-based and
electronic employment verification systems. The second hearing was held
on April 26, 2007, and explored the proposals to improve employment
eligibility verification. Last year, there were four bills mandating
the use of an EEVS had been introduced in the 110th Congress. Now,
there are eleven bills pending before Congress.
Before 1986, the law allowed employers to hire undocumented
workers. Employers were not required to verify the immigration or
citizenship status of workers who they hired. However, in 1986, the
Immigration Reform and Control Act (IRCA) made it illegal for employers
to knowingly hire, recruit, or continue to employ undocumented workers.
IRCA required employers to examine documents to verify their employees'
identity and citizen or immigration status and to attest to the
verification on Form I-9.
In 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act created a voluntary EEVS called the Basic Pilot
Program, which operated in five states in November 1997. The program
was extended to the fifty states in 2003. The reauthorization was
extended until November 2008. The Department of Homeland Security
renamed the expanded program ``E-Verify'' in 2007. In the same year,
the Office of Management and Budget instructed federal agencies to use
E-Verify for all new employees and encouraged all federal contractors
and vendors to enroll in the program. States have now extended the
program to private employers.
An employer wishing to use E-Verify must enter a Memorandum of
Understanding with DHS and Social Security Administration. The MOU
prevents an employer from pre-screening or using the E-Verify to check
the citizenship or immigration status of workers before they are hired,
selective screening of certain workers, or re-verifying the citizenship
or immigration status of existing workers.
Under current law, all employers must complete a Form I-9 for each
new employee within three business days of the start of employment. The
employer must enter the new worker's name, social security number, date
of birth, immigration status, and the type of documents that worker
used to demonstrate the status. This information is then checked
against the SSA and DHS databases. If the information does not match,
the employers inform the worker of the mismatch and issue a ``Notice to
Employee of Tentative Nonconfirmation.'' If the worker chooses to
contest the document, the worker has eight federal workdays to contact
SSA or DHS to resolve the mismatch. SSA or DHS has ten federal workdays
to address the notice. If it takes longer, the government will issue a
``case in continuance'' notice. Unless the employer receives a ``case
in continuance'' notice, it must run the employee's information through
E-Verify after ten federal days to receive a confirmation of the
worker's authorization to work or a final nonconfirmation.
If the worker chooses not to contest the Notice to Employee of
Tentative Nonconfirmation, the TNC will become final and the employer
will be required to fire the worker. This system is fraught with
problems. EEVS currently only affects a small portion of the 163
million workers and 7 million employers in the U.S. Approximately
66,000 employers or less than 1 percent of all employers in the U.S.
are enrolled to use E-Verify. And, registered users do not use it.
The focus of this hearing is the abuse and use of the E-Verify
system on U.S. workers who have been erroneously denied work
authorization because of E-Verify or EEVS--12.7 million errors were
found in the records of U.S. Citizens. Moreover, there is evidence as
cited in a recent GAO report that employers have abused or misused
EEVS. Misuse has included failure to train staff on the use of the
system, prescreening, reduction in work and pay for employees that
received tentative nonconfirmations, failure to fire an employee that
received a final nonconfirmation which resulted in discriminatory
treatment, failure to explain the EEVS system to employees,
reverification of existing employees, and failure to comply with
The problems with E-Verify is that anyone can sign up to use it. In
addition, employers have failed to maintain employee confidences, and
there's a threat of increased identity theft.
Today's hearing will discuss the use, misuse, and abuse of the E-
Verify and EEVS systems. I welcome the witnesses' insightful testimony.
Thank you, I yield the balance of my time.