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64–405 PDF 2011

E-VERIFY: PRESERVING JOBS 

FOR AMERICAN WORKERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 10, 2011 

Serial No. 112–4 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 10, 2011 

Page 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 4 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 16 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 17 

WITNESSES 

Ms. Theresa C. Bertucci, Associate Director, Enterprise Services Directorate, 

U.S. Citizenship and Immigration Services 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 25 

Mr. Richard M. Stana, Director, Homeland Security and Justice Issues, U.S. 

Government Accountability Office 

Oral Testimony ..................................................................................................... 37 

Prepared Statement ............................................................................................. 39 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Elton Gallegly, a Representative in 

Congress from the State of California, and Chairman, Subcommittee on 

Immigration Policy and Enforcement ................................................................. 3 

Prepared Statement of Tyler Moran, Policy Director, National Immigration 

Law Center, submitted by the Honorable Zoe Lofgren, a Representative 

in Congress from the State of California, and Ranking Member, Subcommittee on Immigration Policy and Enforcement ......................................... 7 

Information of the AFL-CIO and Change to Win, submitted by the Honorable 

John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary ................................. 18 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 21 

Material submitted by submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, 

Subcommittee on Immigration Policy and Enforcement ................................... 55 

Prepared Statement of Jessica St. Pierre, U.S. Citizen, submitted by the 

Honorable Zoe Lofgren, a Representative in Congress from the State of 

California, and Ranking Member, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 140 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Lynn Shotwell, Executive Director, the American Council on 

International Personnel ....................................................................................... 153 

Material submitted by the Migration Policy Institute (MPI) ............................... 155 

(1) 

E-VERIFY: PRESERVING JOBS 

FOR AMERICAN WORKERS 

THURSDAY, FEBRUARY 10, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

room 2141, Rayburn Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, Gohmert, Poe, Ross, 

Lofgren, Conyers, and Pierluisi. 

Staff present: (Majority) Andrea Loving, Counsel; Marian White, 

Staff Assistant; and Tom Jawetz, Minority Counsel. 

Mr. GALLEGLY. Good morning. I call the Subcommittee to order. 

I have an opening statement. Then I will defer to our colleagues 

and get our hearing going. 

Most folks on this Committee know that I have long said that the 

way to solve the problem of illegal immigration is not all that complicated. First, we must enforce our laws, and second, we must discourage illegal immigration. And finally, we must remove the benefits that make it easy for illegals to stay in this country. 

With nearly 14 million unemployed Americans, removing the 

magnets is more important now than ever. 

The biggest magnet for illegal immigrants is jobs. So we owe it 

to the American people to do whatever we can to reduce the number of American jobs going to illegal immigrants. The E-Verify program helps to do just that. E-Verify allows employers to check the 

work eligibility of hew hires by running the employee’s Social Security number or alien identification number against Department of 

Homeland Security and Social Security Administration records. 

In 1995, I chaired a congressional task force on immigration reform. We published a 200-page report with more than 80 specific 

recommendations. One of those was for an electronic employment 

eligibility verification system which was included in Chairman 

Smith’s 1996 immigration reform bill. That system is now known 

as E-Verify. 

It is currently a voluntary program for most of the almost 

250,000 employers who use it. It is free, Internet-based, and very, 

very easy to use. And the employers who use it all agree. 

In an October 2010 USCIS customer satisfaction survey, E-Verify 

received 82 out of 100 on the American Customer Satisfaction 

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Index scale. The 82 scored by E-Verify is much higher than the 

Federal Government’s satisfaction index of 69. 

And 76 percent of the National Federation of Independent Business members said it would be a minimal or no burden if there was 

one telephone number or a single Internet web site where we could 

check a new employee’s eligibility to work. And that is exactly what 

E-Verify is. 

But I also want to acknowledge that there are two very important components that must exist to help ensure that U.S. jobs go 

to Americans and legal residents. 

First, the Federal Government must put in place enough enforcement resources to ensure proper use of E-Verify. Employers must 

have to know if they misuse the system, for instance, by ignoring 

the fact that the photo in the E-Verify does not match the photo 

on the identity document provided by employee, they will be investigated and held accountable. Right now, there is nowhere near the 

level of enforcement needed for E-Verify or really, for that matter, 

anything having to do with illegal immigration. 

Second, the SSA must work in conjunction with DHS to use Social Security no-match letters. If the same Social Security number 

is being queried by employers in several different States at around 

the same time, the likelihood of fraud is very high. 

These steps will help E-Verify’s continued success. 

And I look forward to the testimony of our witnesses today. 

And at this point, I would yield to my good friend from California, the Ranking Member, Ms. Lofgren. 

[The prepared statement of Mr. Gallegly follows:] 

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Ms. LOFGREN. Thank you, Mr. Chairman. 

Today’s hearing on E-Verify continues the conversation we began 

at the Subcommittee’s first hearing on ICE worksite enforcement. 

The situation we face is clear to everyone. Our immigration system 

is broken and it doesn’t meet the needs of our country. As we disVerDate Aug 31 2005 10:54 Mar 22, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021011\64405.000 HJUD1 PsN: DOUGA

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cussed before, simply continuing to enforce our broken immigration 

laws is not a serious job proposal. Pressing harder on the gas without fixing the vehicle will only endanger our recovering economy, 

hurt American workers, and leave our immigration system as broken as when we started. 

Being from Silicon Valley, I am a big advocate for technological 

solutions to problems, and I support a carefully designed electronic 

employment eligibility verification system that works and contains 

sufficient safeguards. In fact, since 2005, every serious proposal to 

fix our broken immigration system has tackled the challenge of 

verifying the employment eligibility of our workforce. 

But we need to take into account the complex realities of our 

economy. There are those who argue that making E-Verify mandatory for all employers will destroy the jobs magnet by preventing 

unauthorized workers from getting new jobs. They want employers 

to use E-Verify not only for new hires, but for existing employees 

as well. They believe this issue boils down to simple math, that 

every time we remove an undocumented worker from a job or from 

the country, we open that job for a native-born worker. But this 

simple math is just bad math. The truth is that mandating 

E-Verify alone would not destroy the jobs magnet. It would actually 

encourage businesses and workers to enter the underground economy by working off the books. 

When the Congressional Budget Office analyzed the SAVE Act in 

2008, it concluded that mandating E-Verify without reforming our broken immigration laws would suck $17.3 billion out of the tax 

system. Driving millions of workers further into the shadows would 

not only cost this country $17.3 billion in lost revenue, it would depress wages and working conditions for all workers, including 

United States workers, as unscrupulous employers would be better 

able to undercut those that play by the rules. 

It gets worse. In some industries, like agriculture, mandating the 

use of E-Verify would actually reverse the polarity of the magnet, 

shipping millions of jobs overseas. In agriculture where 75 percent 

of the jobs are filled by undocumented immigrants, E-Verify would 

decimate the agricultural economy, and as we have learned over 

the years, the increase in wages necessary to get U.S. workers to 

go to the fields as migrant workers would hike production costs so 

high that U.S. food products would no longer be competitive with 

imported products. The end result would be the closure of America’s farms, a less secure America, and the mass offshoring of millions and millions of U.S. jobs, including all the upstream and 

downstream jobs that are created and supported by our agriculture 

industry. 

The jobs magnet that draws people to this country, a sign of economic prosperity and opportunity, would be reversed, repelling 

businesses and entrepreneurs from investing in our country and 

contributing to our economic recovery. 

I am pleased to have these witnesses before us today because I 

expect that we will hear about ongoing efforts to improve the accuracy of E-Verify. I also expect, however, that we will hear about serious challenges that remain. 

One issue of great concern during this period of economic recovery and high unemployment is the E-Verify error rate, which has 

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directly led to tens of thousands of U.S. citizens and employed authorized noncitizens to improperly lose their jobs. Based on an 

analysis of USCIS data, the National Immigration Law Center estimates in their submitted testimony that mandating E-Verify for all 

employers would jeopardize the jobs of about 1.2 million American 

citizens and work-authorized nonimmigrants. I would ask unanimous consent, Mr. Chairman, to enter that statement into the 

record. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Ms. LOFGREN. Today’s hearing is E-Verify: Preserving Jobs for 

American Workers. But until the problems are fixed and until we 

fix our broken immigration system more generally, the statement 

is simply untrue. 

Mr. Chairman, I thank you for recognizing me for my opening 

statement and yield back. 


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Mr. GALLEGLY. Thanks to the gentlelady. 

At this time, I would yield to the Chairman of the full Committee, my good friend, Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

With unemployment over 9 percent now for 21 months, jobs are 

scarce and families are worried. According to the Pew Hispanic 

Center, 7 million people are working in the U.S. illegally. These 

jobs should go to legal workers. 

One effective program to help ensure jobs are reserved for citizens and legal workers is E-Verify. It is an electronic employment 

eligibility verification system run by U.S. Citizenship and Immigration Services in conjunction with the Social Security Administration. Through E-Verify, the Social Security numbers and alien identification numbers of new hires are checked against Social Security 

Administration and Department of Homeland Security databases in 

order to help employers determine who is eligible to work in the 

U.S. 

I have used the program, frankly, repeatedly to ensure that all 

staff members in my office are eligible to work in the U.S., as all 

Members of Congress are required to do. It is free, quick, and easy 

to use. 

I am aware of criticisms of E-Verify, some legitimate and most 

not. But the fact remains that E-Verify is a very effective tool for 

employers who want to hire legal workers. 

Perhaps the most valid criticism of E-Verify is the identity theft 

loophole. Specifically, if an employee provides an employer with a 

stolen Social Security number and matching identification information, E-Verify will determine that the Social Security number is 

one that is work-eligible. 

USCIS has taken steps to help close the ID theft loophole. For 

instance, they have instituted the photo-matching tool. This allows 

an employer to view a picture of the employee from a green card 

and employment authorization document or a passport to determine that the employee is in fact the person to whom the Social 

Security number or alien identification number was issued. I am 

interested in hearing what USCIS has to say today about further 

improvements for the identity theft loophole and expansion of the 

photo-match tool. 

Also, it is critical that DHS and SSA work together to investigate 

any suspicious overuse of Social Security numbers through 

E-Verify. 

One issue regarding the identity theft loophole that I hope Ms. 

Bertucci will address was noted by a 2009 Westat study on 

E-Verify. The study stated that 3.3 percent of all E-Verify queries 

are for unauthorized workers and just over half of those are actually found to be work-authorized. Now, this figure is often cited by 

opponents to the program. However, it is important that Westat 

says they estimated this percentage based on their assumptions of 

the number of illegal immigrants in the workforce. It was not 

based on the discovery of any illegal immigrant individuals actually 

in the workforce. So I would caution against using this number. 

Studies by Westat and USCIS show that E-Verify’s work eligibility confirmation rates continue to improve as the system is upgraded. Last year’s USCIS data shows that 98.3 percent of employVerDate Aug 31 2005 10:54 Mar 22, 2011 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021011\64405.000 HJUD1 PsN: DOUGA
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ees were confirmed as work-authorized within 24 hours. And a 

2009 Westat report found that those eligible to work are immediately confirmed 99.5 percent of the time. 

Nearly 250,000 businesses now use E-Verify and over 1,300 more 

sign up for it each week. 

I supported the previous Administration’s attempts to expand the 

number of employers using E-Verify, and they did so through outreach to businesses, but they also did so by mandating certain Federal contractors and others use E-Verify. 

Today I hope to hear how the current Administration plans to expand those requirements. With 26 million Americans unemployed 

or underemployed, expanding E-Verify would help open up jobs 

that they need. 

Thank you, Mr. Chairman, and I will yield back the balance of 

my time. 

Mr. GALLEGLY. I would yield to the Ranking Member of the full 

Committee, my good friend, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Gallegly. I wasn’t at the 

first Subcommittee meeting hearing, and so I didn’t have a chance 

to put in my congratulations to your Chairmanship. 

We are here faced with a very curious problem. In a way it is 

simple, but then in a way there are some problems and complexities here. 

Now, we meet in the midst of record deportations from the 

United States for the last 2 years. Those numbers have been going 

up. And there is no one that I know of that would argue that we 

should stop enforcing our immigration laws. But enforcement without reform will promote a race to the bottom that can only hurt the 

American worker in the end. 

And that is why I ask unanimous consent to put in the labor 

movement framework for comprehensive immigration reform by 

two large unions, AFL-CIO and Change to Win. These two unions 

represent over 16 million workers, more than 60 unions, and have 

opposed an enforcement-only approach and have called for real solutions that can fix our broken immigration system. 

[The information referred to follows:] 

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Mr. CONYERS. So I hope that the discussion this morning in Judiciary turns around the two twin methods that many are recommending. Enforcement, yes, but that we have got to also talk about 

the real solutions of reform. Enforcement and reform is what I am 

going to be looking for in our discussion this morning. 

You see, more and more are beginning to recognize that an enforcement-only approach does not diminish the demand for willing 

workers. They could care less about enforcement. They all know 


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they could be busted. And you know, as I travel across the country, 

Ranking Member Lofgren, every hotel I go in, there are people that 

if you wanted to bet whether they had legal status in this country 

or not, I would be willing to take that bet because I suspect not. 

And so we have a certain, sometimes, hypocrisy going on. Some of 

the very people that want tough enforcement are the ones that are 

benefitting from this workforce that is here knowing that if they 

get turned in or turned over to law enforcement or ICE, they are 

on the way out. 

And so I just want us to think about what are we thinking about 

and what are we talking about when we raise the issue of reform 

because enforcement only will not diminish the demand for willing 

workers, but merely push the undocumented further into the shadows which then makes them more susceptible to abuse and exploitation which drives down wages and working conditions for other 

workers, citizen and noncitizen alike. That is why the unions want 

us to look more at the reform part of this immigration challenge. 

That is one of the many dangers of an over-rush to E-Verify mandatory for all workers because without fixing our immigration system, the problem is going to still continue. We know the Congressional Budget Office estimates that E-Verify, without broader immigration reform, will suck $17.3 billion annually out of our Federal tax revenues because millions of workers are currently on the 

books and paying payroll taxes, and what will they do? They will 

simply go off the books and into the underground economy which 

empowers bad employers and endangers everyone else. 

We take notice of the fact that immigrants often fill critical gaps 

in our own workforce. Can we be candid here this morning? There 

are too many jobs that Americans are unwilling to take. Period. 

They do not want the work. It is a lousy job and it doesn’t pay on 

top of it. And there is where the market for illegal immigrant labor 

comes in. 

In the 111th Congress, we found out at a hearing on agricultural 

workers that experts on all sides of the debate agreed that Americans are not returning to the fields to work. Who doesn’t know 

that? Nobody wants that stoop labor out on farms under tough conditions. 

We learned that the increase in wages needed to get our workers 

to perform seasonal agricultural work would put American farmers 

out of business. We can’t afford them. And a story told by one of 

our Republicans’ own witness demonstrated that economic harm 

that would be done if we followed their enforcement-only approach. 

A grower who established a program to attract American workers 

to plant and harvest sweet potatoes had to close the program down 

because it just wouldn’t be profitable. Imagine the damage we 

would cause if our entire agriculture industry, millions of jobs were 

offshored because it could no longer compete with international 

growers. That is a possibility if we make E-Verify mandatory for 

all employers, including those in the agriculture industry. It would 

be everybody. Who has got an answer for that? I hope that is 

raised in this discussion. 

And I will put the rest of my statement in the record, Mr. Chairman, and thank you for your indulgence. 

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Mr. GALLEGLY. Without objection, the statement will be put into 

the record in its entirety. 

[The information referred to follows:] 


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Mr. GALLEGLY. I appreciate the gentleman’s comments. 

And I want to welcome our two very distinguished witnesses 

today. And for the record, our witnesses’ written statements will be 

entered into the record in its entirety. 

Our first witness, Theresa Bertucci, currently serves as the Associate Director of the Enterprise Services Directorate for the U.S. 

Citizenship and Immigration Services, known as USCIS. Welcome, 

Ms. Bertucci, and we will hear your testimony at this point. 

TESTIMONY OF THERESA C. BERTUCCI, ASSOCIATE DIRECTOR, ENTERPRISE SERVICES DIRECTORATE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES 

Ms. BERTUCCI. Thank you. Chairman Smith, Chairman Gallegly, 

Ranking Member Lofgren, and Members of the Subcommittee. 

Mr. GALLEGLY. Ms. Bertucci, can we just hit that button please? 

Thank you. 

Ms. BERTUCCI. It is on. I am sorry. Can you hear me now? Okay. 

Sorry. 

Chairman Smith, Chairman Gallegly, Ranking Member Lofgren, 

and Members of the Subcommittee, I am grateful for the opportunity to discuss our shared goal of effective employment eligibility 

verification through the E-Verify program. 

I am pleased to report that the E-Verify program continues to 

grow at a steady pace. As of today, more than 246,000 employers 

are enrolled, representing more than 850,000 worksites, or 11 percent of employers. This 11 percent figure compares the 850,000 

worksites to the 7.7 million business establishments from the U.S. 

Economic Census in 2007. More than 1,300 new employers enroll 

each week. During fiscal year 2010, 16.4 million queries were run 

with more than 5.3 million new queries this fiscal year. 

E-Verify’s accuracy rate is improving. Overall data mismatches 

have been reduced by 5.4 percent since 2007 due to enhancements 

to the system. 

We appreciate the work undertaken by GAO in addressing the 

success of the program and the challenges confronting E-Verify. We 

are actively working to implement its important recommendations 

to improve the system. 

Strengthening the integrity of the system is one of our primary 

goals. While E-Verify alone cannot detect all instances of identity 

fraud, we are working to improve the ability to detect fraud and 

significant steps have been taken. E-Verify expanded photographic 

verification to include U.S. passports and passport cards, employment authorization documents, and permanent resident cards. Of 

the 400,000 matches of DHS photo documents, the system has detected 4,000 mismatches. 

Since June 2010, E-Verify has used a commercial database to 

validate the legitimacy of employers using the system. 

The program has also increased monitoring and compliance of 

employer transactions. In fiscal year 2010, we issued 16,125 compliance actions with over 9,600 actions to date this fiscal year. 

USCIS also remains dedicated to protecting employees’ rights. 

E-Verify implemented an employee hotline that offers information 

and assistance on the program, and callers can also use the hotline 

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to lodge complaints about possible misuse or discrimination. The 

hotline handled over 15,000 calls last year. 

USCIS and DHS Civil Rights/Civil Liberties have produced educational training videos that provide information to employees and 

employers about their rights and their responsibilities. 

In the spring of 2011, we plan to pilot the E-Verify Self Check 

feature. Self Check will be a free web-based service that allows 

workers to verify their Government records before they are hired, 

which serves to both empower employees with information and to 

help further reduce data mismatches. Self Check will have identity 

assurance protections built into the system. 

USCIS is dedicated to and fully engaged in the improvement of 

E-Verify so its use can increase. To achieve that goal on an everbroadening scale, additional challenges remain. For example, the 

E-Verify system is predicated on an employer’s Internet access. The 

ability of some sectors of the market to access the system will need 

to be addressed. As use increases, Federal agencies involved in the 

program will need to expand their capacity to administer the daily 

results of the query process, including the process of providing assistance to employees who assert system error. 

The increased use of E-Verify will also require USCIS to improve 

its information technology infrastructure and analytical tools allowing for increased monitoring and compliance. The program has 

made great strides in becoming a fast, easy-to-use, and more accurate tool that helps employers maintain a legal workforce and comply with our Nation’s immigration laws. 

We are poised to meet the challenge that accompanies the 

growth of E-Verify and the needs of our customers, both businesses 

and employees. On behalf of USCIS Director Alejandro Mayorkas 

and all of our colleagues at USCIS, we appreciate the Congress’ 

continued strong support of the program. 

Thank you for the opportunity to testify before the Subcommittee. I look forward to your questions. 

[The prepared statement of Ms. Bertucci follows:] 

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Mr. GALLEGLY. Thank you very much, Ms. Bertucci. 

Our second witness is Richard Stana. Mr. Stana serves as Director of Homeland Security and Justice Issues at the GAO and has 

dedicated 35 years of service to the GAO and has served at headquarters, field, and overseas services and directed reviews on a 

wide variety of complex and military—both military and domestic. 

Mr. Stana, welcome. 

TESTIMONY OF RICHARD M. STANA, DIRECTOR, HOMELAND 

SECURITY AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STANA. Thank you, Chairman Gallegly and Ms. Lofgren, for 

inviting me to testify at this important hearing. 

As you know, immigration experts say that the single most important step that could be taken to manage lawful immigration and 

reduce illegal immigration is to develop an effective worksite enforcement and authorization system. 

E-Verify does provide employers with a tool to help identify those 

who are authorized to work. 

Our recent report found that SSA and USCIS have taken some 

important steps and have improved the program, and yet, significant challenges remain. In my statement this morning, I would like 

to just highlight three of those issues. And I know that you have 

my prepared statement and you probably have a copy of our full 

report. So let me go right into the three areas. 

First, let’s talk about the TNC’s. USCIS has substantially reduced the number of TNC’s. Just a few years ago, the TNC level, 

the tentative nonconfirmation level, stood at about 8 percent, and 

many of those turned out to be U.S. citizens who were improperly 

identified as not being work-authorized. That figure has gone down 

to about 2.6 percent and most recently below 2 percent, although 

that might be an anomaly. We will wait and see. That was just 1 

month’s worth of data. 

USCIS did this by expanding the number of databases it queries 

and trying to refine the data through common error searches before 

they issue a TNC, and that has greatly reduced the number of 

TNC’s. 

Now, having said that, TNC’s continue to occur for a number of 

reasons and mainly because the information in the data sets at 

USCIS, DHS, and SSA have not consistently recorded an individual’s name. You might come to the United States with several surnames or be in the United States with several surnames, a hyphenated name, or a long name that was somehow shortened or anglicized. And when you enter data or have data entered into different 

data sets, the name may be recorded differently and thus create a 

mismatch and a TNC. There is no law that compels an individual 

to record information consistently among several data sets, and 

this is an issue. 

So improving Government data sets, improving the information 

that employees have to help refine the data that they submit, and 

correcting inaccuracies or inconsistencies in agency data sets is 

really important to increasing the accuracy of E-Verify determinations. In the short run, it might increase the burden of the agencies, particularly at SSA, but in the long run, it will not only help 

38 

with the system, but with respect to SSA, when it comes time to 

retire and collect your earnings, your system name and earnings 

records will be ready to go. 

The second issue I want to talk about is identity theft and employer misuse. Despite improvements to reduce document fraud, 

E-Verify still cannot detect the use of eligibility documents that are 

either someone else’s who is work-authorized or somehow the employer may provide a document to the worker to use that is not 

their own. The exact magnitude of the problem is unknown, but 

Westat estimated that about 3.4 percent of the confirmations that 

were issued a few years ago were actually to people who were not 

work-authorized, but they either used phony documents themselves 

or were complicit with the employers in gaining work authorization. 

USCIS has a photo-matching tool that Ms. Bertucci mentioned. 

It can currently query for three documents that have photos. But 

a person can seek and gain work authorization by using any number of 26 documents. So while that has helped, it is not a panacea. 

Also, with respect to the photo-matching tool, there have been instances—and we learned about this during our field work in Arizona—where employers have coached workers not to use documents that are part of the photo-matching tool and thus evading 

that important check. Biometrics might help, but we all know biometrics can be costly to both the Government and to employers, 

and there are privacy concerns about how much information the 

Government ought to have in its files that will need to be resolved. 

Turning to employer misuse, some employers have limited pay, 

restricted work assignments, or even terminated employees who received a TNC, and this is wrong. The magnitude is not known. It 

exists. USCIS cannot determine these things from its data sets, but 

it needs to be more vigilant. I think USCIS only scans about 2 percent of employers in its nets to try to figure out how much of this 

abuse is going on. It does not do a 100 percent check. It may be 

able to do more when this new data system comes up. 

My final issue involves resources, and it is a subject that we 

have all talked about before at one time or another. An effective 

employment authorization system requires resources to ensure 

compliance with the system. That is true for E-Verify. It is true for 

the I-9 system. The resources are not there to do an effective job. 

USCIS must rely on ICE to investigate, sanction, and seek prosecution, but given ICE’s existing priorities and resource constraints, it 

is limited in its ability to do so. The same limitations would exist 

if E-Verify were to be made mandatory. 

Regarding the onsite checks of employer compliance with 

E-Verify rules, the so-called misuse or discrimination issue, to our 

knowledge, USCIS staff has made one site visit as of last August 

to one employer to check on those issues. 

So policy decisions are going to have to be made about how to 

effect a credible worksite authorization and enforcement program 

using E-Verify to include the resources that are needed to make it 

successful, and these policy decisions have yet to be made. 

Thank you very much. 

[The statement Mr. Stana follows:] 

39 

PREPARED STATEMENT OF RICHARD M. STANA


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Mr. GALLEGLY. Thank you very much, Mr. Stana. 

At this point before we go to questions, I would like to take just 

a brief break and give the Deputy Chief of the Verification Division 

at USCIS an opportunity to provide us with a visual demonstration 

of how E-Verify works. Kathy Lotspeich is our Deputy Chief. 

Kathy, are you ready? 

Ms. LOTSPEICH. I am ready. 


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So I am just going to run really quickly for you here two cases: 

one that goes through automatically and one that is issued a tentative nonconfirmation. 

So here I am on our home page. I am going to click on ‘‘new 

case.’’ What the employer does is they enter information from the 

form I-9. So here on the form I-9, the example I am going to use 

is someone who attested to be a citizen of the United States. 

And I click ‘‘continue.’’ And then it asks me which documents the 

individual presented, and that will help me then determine what 

I need to enter into the system. For the demo today, I am going 

to hit ‘‘list B and C documents,’’ which are typically a driver’s license and a Social Security card. Then I just enter a few data 

points from the form I-9. I actually do not need to put in their address or anything that is actually on the form I-9. I can just add, 

for this case, the name, date of birth. We have the citizenship status and the Social Security number. And then I go down and I 

enter the hire dates. And so for the hire date, I am going to enter 

today’s date which is February 10, 2011. 

I click ‘‘continue.’’ And then here it comes up as employment authorized. And so what the employer does at this point is they can 

take this case verification number and put it on the form I-9 or 

they could also print out some of the case details. I am going to 

select ‘‘yes, the person continues to work.’’ And they could attach 

that to their form I-9. 

And note here when the employer closes a case, they could also 

select that the case is invalid. So if there was some type of a mistake made—this isn’t a zero sum game—the employer can start the 

process over again. 

I am going to go ahead and close this out. 

And up here I could also print this out and attach it to the form 

I-9. 

So now I am going to go ahead and just really quickly show for 

you another case where the individual gets a tentative nonconfirmation. 

So I select ‘‘new case.’’ And again, I am going to attest as a citizen of the United States. ‘‘List B and C documents’’ and again just 

enter the information and then, as before, enter today’s date. 

So now it is asking me to double check the information below. 

The system knows it is about ready to issue a tentative nonconfirmation but does want to give the employer a second chance at 

correcting any errors. 

I am going to go ahead and select ‘‘continue.’’ And now the system is telling me that I have a tentative nonconfirmation with the 

Social Security Administration. It tells me that the information 

does not match, and it stresses that this does not mean that the 

employee is not authorized to work in the United States. However, 

there is some additional action required. 

And at this point, the employer can give the employee a letter, 

which we have in Spanish and in English, giving a lot of the information about the employee, why the number did not match, what 

the employer needs to do, instructions for the employee why they 

received this notice, the opportunity to contest or not contest, and 

then information about their rights, and also a number they can 

call us at E-Verify or the Office of Special Counsel. 

52 

And then I will conclude our demonstration at this point. So basically the employee then takes this letter to the Social Security 

Administration or may call us at the Department of Homeland Security to resolve their case. 

Thank you. 

Mr. GALLEGLY. Thank you very much, Ms. Lotspeich. 

At this point, I would like to ask Ms. Bertucci a couple questions. 

In your written testimony, you discuss the Monitoring and Compliance Branch which detects potential misuse with E-Verify by employers. I know you have issued 7,461, according to your statement, 

compliance letters, but what is the outcome of the issuance of these 

letters? And how many have been ignored? And what are the consequences of ignoring a compliance letter? 

Ms. BERTUCCI. Thank you, sir. 

The difference in letters issued between what I said in my oral 

testimony of 9,600 was updated today from the time we submitted 

my written statement. So that is the difference. First of all, I want 

to point that out. And that is this present fiscal year. Last year, 

the number was 16,121. 

We really stood up the compliance group at full swing really, I 

would say, during 2010. We are about to hire even additional people out in our Nebraska office. So we are building up that compliance component. 

We send out those letters as the first—we monitor various behaviors by employers—to include not using the system, signing up and 

not using the system. That is one thing we will monitor. We will 

monitor multiple uses of SSN’s to determine prior to the fixes to 

the system that Kathy just demonstrated to ensure that it wasn’t 

errors in—typos, frankly, or errors in entering the data. Those are 

some of the enhancements we did to the system related to that. 

But more importantly, in case it is something else going on, we will 

monitor those kinds of behaviors. And there are a number of other 

behaviors that we will monitor to include an employer running the 

system against a current employee, which is not allowed. It has to 

be upon hire and/or not responding to a high number of TNC’s possibly that we are not seeing closed out. What is going on at that 

employee worksite? 

So really in the end what we are doing is we are either calling 

them—so let me be clear that we are either calling them in that 

16,000 or 9,600 number or we are sending them a written letter. 

We are then doing the active reach-back to those employers to see 

whether it is an education issue or anything else. We have not yet 

done it, and the end result would be we would terminate their 

MOU with us on monitoring and compliance. However, if we saw 

egregious conduct by the employer in any way, shape, or form that 

we believe is inappropiate, according to our MOU’s with ICE and/ 

or DOJ’s Office of Special Counsel that has jurisdiction over possible discrimination, we work with those offices as well. 

So that is the kind of compliance we are doing today, and our 

ability—I think Mr. Stana talked to it—is that one of the things 

we really are trying to do is stand up a better analytical tool to be 

able to do better monitoring and compliance. Right now, frankly, it 

is a little clumsy on the basic technology infrastructure that we 

have today. So we are working to improve that tool hopefully by 

53 

later this year. We are going to have a pilot running to do even 

more analysis of the data. 

Mr. GALLEGLY. Have there been any employers prosecuted as a 

result of misuse? 

Ms. BERTUCCI. First of all, we have not really referred anything 

yet to ICE. Under the MOU, we can. So ICE is out doing their jurisdictional responsibilities, and sometimes, frankly, we will come 

across or they may come across an employer who also uses the system. So the worksite enforcement and prosecution are on the ICE 

side of the house. 

Mr. GALLEGLY. But we have over 9,000 of these letters that you 

have mentioned. 

Ms. BERTUCCI. Yes. 

Mr. GALLEGLY. And out of the 9,000-plus, there really hasn’t 

been any consequence at all, has there? 

Ms. BERTUCCI. The system is a voluntary system. To a great extent, we believe the majority of the employers that are using the 

system are trying to comply with the law and the requirements of 

our system. So what we are doing is the outreach to ensure is there 

a training issue, is there a data issue, is it those kinds of things? 

We do not have enforcement authority within USCIS certainly on 

a prosecution standpoint. But if there are egregious behaviors that 

we believe are worthy of referral, then we would refer those to ICE 

within their own set of priorities for follow-up and possible review. 

Mr. GALLEGLY. Obviously, if the program was not voluntary and 

it was mandatory, the situation and the incentive on the part of 

the employer would be greatly different. In fact, this program was 

originally introduced as a mandatory. It was passed out of this 

Committee and the bill, mandatory. And then when it came back 

in conference, that is when it got downgraded to something less 

than what would be effective in my opinion. 

My time has expired. I would yield to the gentlelady from California, Ranking Member, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Before my questions, I would like to take care of a few housekeeping items. 

First, Congresswoman Sheila Jackson Lee called to let me know 

that she is Ranking Member on a Subcommittee over at Homeland 

Security and hopes to get here if that hearing concludes and offers 

her apologies for the unavoidable absence. 

I would also like to ask unanimous consent, Mr. Chairman, to 

submit statements from the Agricultural Coalition for Immigration 

Reform, the American Council on International Personnel, the 

Main Street Alliance for the National Leadership Council, statements from the faith community, including the Catholic Bishops 

Committee, the American Jewish Committee, Church World Service, Sisters of Mercy, the Unitarian Universalist Association of Congregations, the Friends Services, the Episcopal Diocese of California, the St. Norbert Abbey, the Evangelical Lutheran Church of 

America, Catholic Charities of Yakima, Washington, the Jesuits 

California Province, the Coalition of Episcopal Latinos, as well as 

statements from Illinois State representatives, Texas State representatives, Cook County commissioners, an additional Texas 

State representative, the National Immigration Law Center, the 

54 

National Immigration Forum, the American Civil Liberties Union, 

the Asian American Center for Advancing Justice, the American 

Immigration Lawyers Association, the Anti-Defamation League, 

CAUSA Oregon, Coalition for Human Immigrant Rights of Los Angeles, the Colorado Immigrant Rights Coalition, Farmworkers Justice, the Hispanic Association of Colleges & Universities, LULAC 

of Syracuse, the Muslim American Society Immigrant Justice Center, One America, Racine Dominicane, and the Wayne Action for 

Racial Equality. 

Mr. GALLEGLY. Without objection, they will be made a part of the 

record of the hearing. 

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Mr. GALLEGLY. And with that, I would yield to the gentlelady for 

her questions. 

Ms. LOFGREN. Thank you very much, Mr. Chairman. 

I have many questions. And first, let me just say that I think it 

is helpful to have this hearing, but there are a variety of studies, 

analyses available to us. And one that has just been released within the last few weeks is an analysis by Bloomberg Government, 

and this is the conclusion that the Bloomberg analysis made. Although E-Verify is free to the employer, it does cost employers to 

become ready to use the system. And one of the estimates from 

Bloomberg is that most of the burden would go to small businesses. 

In fact, they estimate that if the E-Verify had been mandatory for 

all employers last year, it would have cost businesses $2.7 billion 

on their end and that most of that cost would be for small businesses. In fact, Bloomberg estimates $2.6 billion that would be 

borne by small businesses for a variety of reasons. They may not 

have an Internet connection. They would have to get one, training 

employees, and the like. 

Has USCIS involved the small business community in the analysis of what you are doing, and what have they told you? 

Ms. BERTUCCI. n today’s environment 73 percent of our companies or our employers are employers of under 100 people. So I realize there are various definitions of small businesses, and certainly 

a small shop is—so 73 percent of our members or our participants 

are small business. We have actively engaged in outreach. We understand the concerns. We believe we understand the concerns of 

small business. We are working very closely with the Small Business Association to do a lot of outreach with that community. But 

so far, I would not say we have done that kind of analysis. 

Ms. LOFGREN. Okay. 

Turning to Mr. Stana—and thank you for your years of service 

at GAO, one of our favorite orgs because you call it as you see it 

whether we like it or not. 

We have heard that the E-Verify error rate is going down, and 

that is good. However, if there are wrong decisions made through 

whatever error, it has real consequences for people. And looking to 

your December 2010 report, I mean, you indicated that American 

citizens could lose jobs over misspellings and the like. We had an 

occasion to meet a young woman, Jessica St. Pierre, who was a 

former telecommunications worker in south Florida, born and 

raised in the United States. She lost a good-paying job because of 

an E-Verify error, and she tried for months to discover the error, 

to fix the problem, and she was unemployed, I mean, that whole 

time. The problem still hasn’t been resolved and she had to accept 

a lower-paying job because of this mistake. 

I would ask unanimous consent to enter her statement into the 

record. 

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Ms. LOFGREN. But I would note that your report in December indicates that Privacy Act requests take an average of 104 days for 

a response to determine inaccuracies. Can you talk about the challenges that workers like Jessica face and what procedures are in 

place when an American citizen loses her job, is fired because of 

a mistake? 

Mr. STANA. Yes. That is sort of a story behind the numbers, if 

you will. If you look at the gross statistics, 98 percent are workauthorized. There is no problem. Of the ones who are not work-auVerDate Aug 31 2005 10:54 Mar 22, 2011 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021011\64405.000 HJUD1 PsN: DOUGA

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thorized, another maybe .3 percent, say a third of a percent, eventually are work-authorized through their queries. But there are 

some. Either the employer doesn’t tell them that they have a TNC, 

or they have a TNC and somehow they can’t get it resolved in 10 

days or they can’t get to an office in 10 days, and they receive a 

final notification through the system and they don’t get a chance 

to. Oftentimes an employee does not know where the source of the 

discrepancy is, whether it is in the SSA data set or if it is in a DHS 

database. That is where the 104 days comes in. 

I also would note that when a final nonconfirmation comes in, 

there is no right of appeal, and that is what may have happened 

in that particular instance. 

So there are issues that would have to be worked out if this were 

to be made mandatory or somehow had broader application. That 

doesn’t mean that the system doesn’t work for most people. It is 

just trying to make sure that these kinds of cases can be resolved 

to a satisfactory outcome. 

Ms. LOFGREN. Well, if you think about—just extrapolating, if we 

were to make this mandatory across the entire American workforce, let’s say we are successful in getting it down to 1 percent. 

We are not there yet. That is a million Americans that could be 

fired or not get a job because of an error rate. 

Mr. STANA. And that is why, we recommended—and as Ms. 

Bertucci said, they accepted that recommendation—that USCIS 

find a way to make it easier to find the source of the error so that 

you identify those who are work-authorized, whether they are legal 

permanent residents with an EAD or they are U.S. citizens, to 

make sure that they can get a fair shake out of the system and 

that the system does what it is designed to do, check on work authorizations. 

Ms. LOFGREN. I see my time has expired. Mr. Chairman, thank 

you for yielding to me. 

Mr. GALLEGLY. I thank the gentlelady for being conscious of the 

light. She used to do that to me. [Laughter.] 

At this time, I would yield to my friend from Texas, Louie 

Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

You know, one of the things that really has helped has been, as 

employers have signed on to use E-Verify—and obviously, you have 

talked about some of the strengths and weaknesses. But there 

seems to be a continuing lack of knowledge in the public sector 

about E-Verify, and it seems like awareness and outreach seem to 

be the Obama administration’s approach to getting people to sign 

on. And I have concerns about that. 

What plans specifically does this Administration have for pushing people to utilize E-Verify so that we can have people legally 

here in jobs that should be used by Americans without regard to 

race, creed, color, or national origin, any of that, but just that they 

are legally here? Hopefully there is more than just hoping people 

notice it on the news and decide, oh, that sounds like a good thing. 

Ms. BERTUCCI. Sir, at this time, we are using outreach to get to 

E-Verify. 

Mr. GOHMERT. And it is a lovely word, but what does that mean? 

‘‘Outreach’’? Somebody stuck out their arm over at the—— 

143 

Ms. BERTUCCI. No. No, sir. We have had 400 different events 

that we—we do webinars. We reach out to the HR communities, 

the large associations, national conferences. With the Small Business Administration, we are going throughout the country in different regions. We have done a number of things in the State of 

Florida, for instance. But we are reaching out to the larger conglomerates or groups or organizations that represent various sectors to include even the agriculture sector of the economy. So we 

are doing that kind of outreach. 

Having said that, we agree with you. We did have an evaluation, 

an independent evaluation, of the nonuse of the system trying to 

figure out what we could do better. And most of those people said 

they are not using it. It was 500 participants in that survey. Most 

of them did say they are not using it because they were never even 

aware of it. So we have invested in a marketing campaign to try 

to get certain segments of the economy in high population areas 

and so on. But that is the kind of outreach we are doing. We are, 

in fact, out there on the road and offering it in that way. 

Mr. GOHMERT. And that sounds nice. And I know if you have got 

400 of these seminars, webinars planned, that will be helpful, but 

from my perspective in the last 2 years, I have noticed that if it 

is things that are really important to this Administration, whether 

it is Obamacare, whether it is cap and trade, whatever it is, there 

seems to be a whole lot of other things this Administration does, 

whether it is carrots or sticks, some might say the Chicago way of 

approaching getting more people on board. 

And I am just wondering if this is really that—I get the impression from your written testimony—I was here late, but from your 

written testimony, you see that is as a very effective tool. I do too. 

But it just seems like if the Administration itself were really on 

board, there would be some carrots and sticks to drive employers 

to this so that we have people legally here that are actually in 

those jobs in this time of high unemployment and it takes care of 

a lot of other problems we have from people illegally here taking 

jobs away from Americans, people that are supposed to be here. 

Has there been any discussion with the White House about an 

approach that would provide real carrot and sticks instead of just 

the awareness program? 

Ms. BERTUCCI. Not at this program level. The Secretary has said 

that she is absolutely supportive of this program and wants to 

build a culture of compliance with employers. 

Mr. GOHMERT. But you understand. 

Ms. BERTUCCI. I understand. 

Mr. GOHMERT. I mean, I have been here 6 years and I have 

picked up on—unlike when I was on the bench, people said what 

they meant, a lot of times when people say, yes, we are having 

meetings about it, it means this is going nowhere. And so I would 

encourage you, as my time is running out, please push and insist 

for more than just awareness campaigns. I mean, the Bush campaign had awareness campaigns. The President was very vocal in 

supporting it. But still, we got too many employers that have never 

heard of it and are not driven to go there. 

But I thank you for your time. 

Ms. BERTUCCI. Thank you, sir. 

144 

Mr. GOHMERT. I yield back. 

Mr. GALLEGLY. The gentleman, the full Committee Ranking 

Member, Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

I want to commend Ms. Bertucci for her candor in conceding that 

this is still in the developmental stage and that there are things 

we have got to fix. 

And I wanted to commend Mr. Stana for talking about employer 

complicity in the immigrant labor getting around hiding the fact 

that they are immigrant labor. And I thank you for that part of our 

discussion. 

With Judge Gohmert, I agree with you. I think that the Administration may not be as fully behind this as their press releases 

might say. 

Mr. GOHMERT. Would the gentleman yield momentarily? And I 

am not meaning to pick on this Administration because it is following up E-Verify from the last one, and I would acknowledge 

that as well. 

Mr. CONYERS. But let’s face it. Out of the first hearing on this 

subject and even this one, would it be unfair for impartial witnesses to come to the conclusion that a number of us here on the 

Committee have that E-Verify just isn’t right now ready for prime 

time? I mean, how on earth can we talk about the Administration 

making this mandatory on every employer in the United States of 

America and we haven’t any evidence of how it is really working? 

That is what you have told us here, Ms. Bertucci, this morning. 

Why don’t we slow down a bit and get some actual working evidence or get some more rigorous proof that this is working? 

I liked the slide show this morning. I couldn’t see anything because I don’t have my glasses on. But I guess it was very impressive. People were nodding and so forth. 

But look, with all the things we have to do, what is the big rush? 

Now, between both you experts, nobody has talked about the reform that is necessary in addition to the enforcement. You keep 

talking enforcement, enforcement, enforcement. 

Have you ever heard of the labor movement’s comprehensive immigration reform package that they put out in April 2009? Can I 

send it down for you to take a look at it? 

Ms. BERTUCCI. Sure. 

Mr. CONYERS. Okay. Take it down. 

And if you say you haven’t, I won’t be surprised and I won’t hold 

it against you. 

Neither of you mentioned anything about the reform part that I 

have been harping on all morning here. Don’t you see that just enforcement alone, even if it were flawless—let’s assume E-Verify 

worked. It still wouldn’t change anything. So what is so complex 

about that? What do you have say about that, Stana? 

Mr. STANA. Well, I would say this. The subject of our report was 

the E-Verify system, what is working, what is not. And I guess our 

answer would be there is some good news and there is some notso-good news. This is a tool that employers can use, obviously, to 

determine whether the employer or the employee and they themselves, by extension, are in compliance with immigration law. 

145 

Now, the extent that you make that mandatory for all employees, 

or for certain sectors of the economy or a certain business size, that 

is a public policy decision. That is not really our decision to make. 

What we are trying to do, I think, is to give you some information 

and analysis that will help you make that decision. 

Mr. CONYERS. And we are grateful for that, and I am glad that 

you didn’t come here this morning to tell us that we ought to make 

it mandatory. I am glad to hear it. 

Now, Chairman Gallegly himself, because of what happened with 

the other body, isn’t that thrilled with—I mean, they didn’t fix it 

in the right way. We have still got our work cut out for him, and 

I appreciate him pointing that out as well. 

Well, my time is up. Thanks a lot. 

Mr. GALLEGLY. I thank the gentleman. 

Mr. Ross? 

Mr. ROSS. Thank you, Mr. Chairman. 

Ms. Bertucci, I am from Polk County, Florida which, growing up 

there, was known as the citrus capital of the world, and being very 

cognizant of that, I understand the labor needs that we have there. 

In fact, we have to rely significantly on immigrant labor. But we 

also find with some of our growers and our harvesters and other 

producers in that industry that Government programs like the H2A 

program with an adverse wage rate is a disincentive to hire 

through an H2A program or any other Government program. 

And now, as we look at the E-Verify program—and you mentioned earlier that you had made some strides, I guess, in the State 

of Florida with E-Verify. Could you just tell me what you meant 

by that? 

Ms. BERTUCCI. I was responding to outreach. We have gone into 

various States to outreach to those communities. That is what I 

was talking about. 

Mr. ROSS. Have you seen an expansion of the use of E-Verify in 

the State of Florida? 

Ms. BERTUCCI. Yes. 

Mr. ROSS. Significantly? 

Ms. BERTUCCI. I cannot—yes, we have but I don’t know as significant as compared to other States. 

Mr. ROSS. I am a strong proponent of E-Verify, and I think it is 

something that we ought to enhance, expand, and use more efficiently. But again, when I look back at my growers and my harvesters, I ask the question, what incentive—and I think this is 

what Judge Gohmert was talking about—what incentive is there 

for an employer? Is there a safe harbor that when they knowingly—or unknowingly hire somebody who is not appropriate, is 

there a safe harbor to prevent him from immunity? 

Ms. BERTUCCI. Well, without getting into the criminal prosecution area because I am not a lawyer and I am not on the ICE side 

of the house, having said that, I believe as the statute is written, 

it allows some recognition of the fact that the employer is trying 

to do the right thing by participating in the program. You know, 

obviously, if there is a really bad actor or an egregious employer 

that for some reason is breaking the law, I would assume that a 

prosecution and/or investigator would look at that. 

146 

Having said that, the presumption is the employer is trying to 

do the right thing by participating in this program, and that is always our assumption going in on the voluntary program. 

Mr. ROSS. And I think anything that we can do to incentivize 

their participation is going to be good. 

Ms. BERTUCCI. Yes, and it’s a tool. It is a tool for them to help 

comply with the law. 

Mr. ROSS. Exactly. 

Now, Mr. Stana, you commented in your report page 6 that there 

are limited resources being put toward enforcement of employer 

compliance. What additional resources would you say that DHS 

may need in order to accomplish the adequate enforcement? 

Mr. STANA. You know, I don’t have a figure for you. I know this 

has been a longstanding problem with the old I-9 process as well. 

I think prior immigration reform legislation put the increases to 

ICE in the thousands, not in the tens or hundreds. 

I would like to make one comment on what Ms. Bertucci said 

about not being a safe harbor because I think it is an important 

point. 

Mr. ROSS. Yes, sir. 

Mr. STANA. Employers should not read participation in E-Verify 

as inoculating themselves. 

Mr. ROSS. Right. 

Mr. STANA. What E-Verify does is it creates a record that they 

submitted a name and they got a response. They had to look at a 

photo, through the matching tool and they said that the person was 

who was in front of them. So it creates a record. If there is any 

worksite action, you know, they may get some accommodation because they are a voluntary participant, but they are by no means 

inoculated if the record shows that this person had a good idea, by 

virtue of the information that E-Verify provided, that the person 

before them was work-authorized or not. And that gets to the point 

that I raised with Ranking Member Conyers that all too often employers have been found to be complicit in these things. 

We went to Colorado, North Carolina, and Arizona and talked 

with workers and with business owners on their experience with 

this, and we heard the same thing, that it is a tool, it has some 

flaws, it had some really good things, and they liked it for various 

reasons. But there are definitely mixed views on it. 

Mr. ROSS. Going back to the additional resources that you referenced in your report, have you made any requests on this Administration for those resources? 

Mr. STANA. You mean, how many more it would take? 

Mr. ROSS. Yes. How many more it would take or what additional 

resources? When you referenced that you have limited authority to 

impose penalties, that you would need additional resources in order 

to achieve the adequate enforcement, have you made any requests 

on the current Administration for additional resources, whatever 

those—— 

Mr. STANA. No. Being from GAO, that wouldn’t be in our bailiwick. That would be up to ICE and, by extension, DHS to ask for 

those resources. 

147 

Mr. ROSS. Would you have any recommendation as to what those 

resources would be or should be to additionally allow them to do 

their enforcement? 

Mr. STANA. You know, we would have to—actually that is the 

Administration’s responsibility, to identify the resources they need, 

not us. 

Mr. ROSS. But you acknowledge that they don’t have adequate 

resources. 

Mr. STANA. They don’t have the resources now to enforce the—— 

Mr. ROSS. Fulfill their enforcement obligations. 

Mr. STANA [continuing]. To enforce the I-9 system, let alone the 

E-Verify system. 

Mr. ROSS. Thank you. I yield back. 

Mr. GALLEGLY. Mr. Pierluisi? 

Mr. PIERLUISI. Thank you, Mr. Chairman. 

Sitting here today, I have to admit that I am troubled. I am troubled about the possibility of expanding or, even worse, making 

mandatory this E-Verify program, and I will explain why. It is simple. 

I have two concerns. The first one, what are we doing with the 

8 million estimated undocumented workers out there? Does anybody think that just by expanding this that these workers will disappear? All of them want to make a living and you cannot blame 

them for that. And they will find a way one way or the other. There 

is an underground economy, and we don’t want to spur it or to encourage it more than it already is existing. And the problem with 

expanding E-Verify without also dealing with the immigration laws 

as a whole on a comprehensive basis is that this is like a band aid. 

It is one thing to have a voluntary program like this to allow employers to—to assist employers in verifying the documents of their 

workers. That is fine. But it is another to simply pretend that by 

making it mandatory, all of sudden 8 million people out there 

working will disappear as if this were magic. 

I noticed that in the statement made by Director Bertucci, she 

says that she hopes that any changes to the E-Verify program—I 

quote—will be considered as a part of comprehensive reform to our 

immigration laws. So the first question I have is, do you agree with 

the premise of my concern that just dealing with this on its own 

is not going to solve the immigration issue our Nation faces? 

Ms. BERTUCCI. Sir, I think that is the public policy decision that 

I would defer to the Department to respond to. 

Mr. PIERLUISI. Is it your hope that we deal with this issue on a 

comprehensive basis? 

Ms. BERTUCCI. I don’t get to hope in this job. [Laughter.] 

Mr. PIERLUISI. I see. But did I quote your statement correctly? 

Ms. BERTUCCI. The Administration stands behind comprehensive 

immigration reform. 

Mr. PIERLUISI. I like hearing that. Okay. 

Another concern I have is that by your own admission there are 

errors. Errors are being made as this program is implemented. 

There has been misuse by the employers as this program happens. 

At one point today, I think you even said that you have been—not 

you personally, but the center has been clumsy in trying to monitor 

148 

the employers’ compliance. And I even noticed that the Chairman 

is not happy with the compliance efforts on your part. 

And let me add one that hasn’t been talked about here which is 

discrimination. I saw that there is a 20 times higher chance to 

have an error when the individual involved is foreign-born. If somebody comes from abroad—and I got this figure from—let me tell 

you this figure because I see that your—Westat is my source for 

this. It has done a study and they determined that there is a 20 

times higher chance that if you are born abroad, then there could 

be a problem. You could be legally in this country. You could be 

even documented. And the Ranking Member of this Subcommittee 

already pointed out to a particular case. 

So that is my second question. What are you doing? Are you 

ready like our Ranking Member of the full Committee said? Are 

you ready to really expand this like some people are proposing? 

Ms. BERTUCCI. Sir, first of all, the system can handle up to 60 

million queries. We know that. We know today—during last year 

we handled 16 million, and our accuracy rate in that Westat study 

was 96 percent. 

Having said that, it also acknowledges what GAO found, and we 

have undertaken a study. And what the name reference had to do 

with is the type of things that Mr. Stana talked about. In the systems that are controlled by DHS to a great extent if their records— 

not only DHS—well, other partners, but mostly DHS, I should say, 

CBP, us, and so on. It depends on how names are entered into 

records over a long period of time. That is when we may have possible problems with names. 

Having said that, on contacting us, we are responding to those 

now. Through the improvements we have made, people aren’t going 

and being pushed off to, say, the Social Security Administration 

where they have to show up. A great number of the people, if it 

is a DHS record mismatch, are coming to us. We are responding 

to those within 24 hours, and we are working with that person. No 

one—no one—one person being fired wrongly is one too many people. No one is being fired under those circumstances. We work with 

the people, and we will gather the information. 

It is difficult. We are working with old systems. We acknowledge 

that, and those are some of the things we want to do to improve 

and make sure that we are building up our status verifiers. We 

have a group sitting in Buffalo. We are going to have another 

group in Nebraska. We have them in Los Angeles and New York. 

And their job is working everyday with people to ensure that the 

records match, you know, if there was that kind of a mismatch 

with names. And that is what is happening. And we have a study. 

Another study we will get by the end of this fiscal year on essentially those kinds of things, the difficulties with foreign names, foreign-born names, so that we can see what we can do to improve 

the system. 

Mr. PIERLUISI. My time is up. 

Mr. GALLEGLY. Thank you very much, Mr. Pierluisi. 

Ted Poe? 

Mr. POE. Thank you, Mr. Chairman. 

Thank you for being here, both of you. 

149 

I am a believer, based on my background as a judge and the rule 

of law, and America is the most generous Nation on earth as far 

as allowing people to come here. We have an immigration policy 

that is very liberal in coming here the right way. I believe basically, though, you come here legally or you don’t come. We all know 

the reasons that people say why they come here. I do not believe 

everybody that comes into the United States illegally is coming 

here to do work Americans won’t do. I think that is just a fiction. 

So if we are going to follow the rules and follow the law, then people who are here illegally need to understand, whatever the political correct term to call those folks, they are still here illegally, and 

they need to come the right way. 

E-Verify is a way to make sure that employers are hiring folks 

that are legally here. It is a frustration for many employers to 

make sure that they want to hire people that are here legally. And 

I think the E-Verify is a way that helps out employers, but also follows the rule of law. 

Ms. Bertucci, I was in Houston last week and talking to some of 

your ICE agents about some of the issues that they face with the 

tremendous influx of people and problems that they have, and I 

just want to thank you for the work they are doing. I admire the 

work that the agency and the division—district in the Houston 

area is doing a good job. 

How long has E-Verify been around? 

Ms. BERTUCCI. The pilot began in 1997. The pilot began way 

back as the basic pilot in 1997. 

Mr. POE. 14 years. Is that right? 

Ms. BERTUCCI. Yes. 

Mr. POE. 11 percent of the businesses use E-Verify. After 14 

years, we still only have 11 percent. Can you help me out why that 

is? Do you know? I mean, why are so few—I mean, that is 11 percent after so many years. It is going to take us—if we keep adding 

10 percent in that length of time, it will be 150 years before we 

have 100 percent. So why have so many been reluctant to use it? 

Ms. BERTUCCI. I believe that the program’s growth has been in 

the most recent years. When the program began, there were obvious challenges on the information technology front. We are growing 

each and every year. We more than doubled during the last couple 

fiscal years, and the program is voluntary. So that is how the 

growth has been. But it has been a steady pace; on average 1,300 

new employers sign MOU’s with us every single week. So we keep 

on growing the program. 

Mr. POE. How many false positives do you get a year? 

Ms. BERTUCCI. False positives. 

Mr. POE. In other words, the system checks out so and so, and 

it is not correct. And so this person may be an American citizen, 

as Mr. Pierluisi was talking about earlier. 

Ms. BERTUCCI. This is an opportunity to discuss the most often 

talked about statistic in this program when people say we have a 

54 percent error. That statistic came out of the Westat 2009 report. 

That same report said the system is overall correct, accurate 96 

percent of the time. That report looked at a smaller segment of the 

population in the system. The Westat model found a 6.2 percent illegal or—I am sorry—unauthorized workforce in the country. It 

150 

was very extensive statistics. My husband is the math major, not 

me. 

But having said that, they looked at that model and they applied 

that model and they said we should have found 6.2 percent people 

as unauthorized to work. We found 2.9 percent. That is where they 

believe—but they did not look at the actual records. They just assessed that figure based on a model. 

Mr. POE. So your opinion—it is 2.9 percent—is a fair statement 

or not? 

Ms. BERTUCCI. No. I don’t know that we have a good number on 

false accurate. The record from Westat was that that error rate at 

that time related to a total of 4 percent run in 2009. 

But since then, we have made improvements. And our most recent 2010 numbers—and as Mr. Stana said, it may be an anomaly 

because we have had the Federal contractors come on. But Mr. 

Stana has recognized 5.4 percent decrease in our tentative nonconfirmations, and we are now at a 1.7 percent initial mismatch. We 

then find .3 percent of those people resolved, authorized to work, 

and the other 1.4 percent found unauthorized. 

Mr. POE. Last question, if I may, Mr. Chairman. Excuse me. I 

am running out of time. 

Ms. BERTUCCI. Okay. 

Mr. POE. You are a potential employee. You go to business and 

it comes up E-Verify is a false positive. It says you are here illegally. What are my options as that worker? 

Ms. BERTUCCI. As the worker? 

Mr. POE. Yes. It comes up a false positive saying that I am illegally in the country, and I am not. 

Ms. BERTUCCI. I think Ms. Lotspeich—you may have not been 

here. So I apologize. 

You have the right to contest that tentative nonconfirmation. At 

that point, that case is held in abeyance. Within 8 Federal work 

days you either visit the Social Security Administration or call us. 

We work with you and we will hold that case open, if we are working with you, until such time we resolve that data mismatch. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. POE. Yes. 

Ms. LOFGREN. Because the GAO report actually indicates theoretically that is what is supposed to happen, but there are plenty 

of times when the employee is never notified, in violation of what 

is supposed to happen. And they can’t fix it and they get fired even 

though they are an American. Isn’t that correct, Mr. Stana? 

Mr. STANA. Yes. If I can straighten out the numbers a little bit 

because I think there are a lot of numbers floating around here. 

Of the 100 percent of people who go through the system, let’s say 

97.5 percent, to round it out, are deemed work-authorized instantaneously. Of the ones who are not authorized instantaneously, about 

.3 percent of them get it resolved within 48 hours or so. So you are 

really dealing with maybe 2.3 to 2 percent of people who have this 

problem. It is a problem. 

Now, getting to your earlier question, you asked how many false 

positives there are. These are false negatives that we are talking 

about, people who are inappropriately told that they are not auVerDate Aug 31 2005 10:54 Mar 22, 2011 Jkt 000000 PO 00000 Frm 00154 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021011\64405.000 HJUD1 PsN: DOUGA
151 

thorized to work and they may be. And that is the issue you are 

talking about. 

The false positives are at about 3-3.5 percent according to 

Westat, which means an individual is not authorized to work but 

somehow the system, either through identity theft or employer 

compliance with the individual getting a job inappropriately, identifies the individual as authorized to work. 

Now, when you throw around all these statistics, it is easy to get 

lost in the numbers. But when you start matching the number sets 

up—and it is hard to do because it is not exactly the same point 

in time and it is not exactly the same data set—but you start getting to the point where getting much further down on the false 

negatives is going to be very difficult to do. It is important to do 

it because you have people like you talked about, Ms. Lofgren, who 

are getting a bad shake out of the system. So you don’t want to lose 

that intent, but it is getting tough because you were ratcheting this 

down into the below 2 percent range. 

The false positives—I don’t know if we are ever going to get totally on top of that without having a better way to address the resource and enforcement question. It is not a matter of when or 

how. That is your call in what conjunction you do it. But that is 

the landscape here. 

Mr. GALLEGLY. I thank the witnesses today. This is going to be 

an issue that we are going to be dealing with a great deal in this 

Congress. 

I would just like to close by trying to respond to my good friend— 

and he truly is my good friend and my neighbor for many years— 

the Ranking Member, Mr. Conyers, and his statement ‘‘why rush?′′ 

I would just like to answer that by saying that this issue didn’t 

start yesterday or day before yesterday. In fact, after IRCA in 

1986, we thought this problem was going to be solved because we 

had a one-time amnesty—I guess that was the 1986 version of comprehensive immigration reform—and that this problem would go 

away because we would have an enforcement mechanism. We never 

enforced. 

Then we fast forward to 1996. That is still 14 years ago, and that 

is when we came up with this new concept of e-verification. Now, 

14 years have passed, and I have been working on it for 14 years. 

So I don’t think that I have really been rushing to it. But if there 

was ever a need to do something quickly when we have 14 million 

Americans that aren’t working today, I think that they deserve to 

be put at the front of the line. 

And I hope we can all work together. John, you are my friend 

and I know we can work together and maybe differ without being 

personal about it. I respect your friendship. 

And with that, we will adjourn the meeting. Thank you. 

[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.] 

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