107TH CONGRESS REPT. 107–310 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1

BASIC PILOT EXTENSION ACT OF 2001

NOVEMBER 30, 2001.—Committed to the Committee of the Whole House on the state

of the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany H.R. 3030]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3030) to extend the ‘‘Basic Pilot’’ employment verification system, and for other purposes, having considered the same, reports

favorably thereon with amendments and recommends that the bill

as amended do pass.

CONTENTS

Page

The Amendments ..................................................................................................... 1

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 5

Committee Consideration ........................................................................................ 5

Vote of the Committee ............................................................................................. 5

Committee Oversight Findings ............................................................................... 5

Performance Goals and Objectives ......................................................................... 5

New Budget Authority and Tax Expenditures ...................................................... 6

Congressional Budget Office Cost Estimate .......................................................... 6

Constitutional Authority Statement ...................................................................... 7

Section-by-Section Analysis and Discussion .......................................................... 7

Changes in Existing Law Made by the Bill, as Reported ..................................... 8

Committee Jurisdiction Letters .............................................................................. 9

Markup Transcript .................................................................................................. 10

The amendments (stated in terms of the page and line numbers of the introduced bill) are as follows:

Page 1, line 8, strike ‘‘1966 (division C of Public Law 104–208

(Sept. 30, 1996), 110 Stat. 3009–656)’’ and insert ‘‘1996 (8 U.S.C.

1324a note)’’.

2

1See, generally, section 274A of the Immigration and Nationality Act. 2See, generally, section 274B of the INA. 3See, i.e., verification of Eligibility for Employment and Benefits: Hearing Before the

Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong., 1st

Sess. (March 30, 1995).

Page 2, beginning on line 1, strike ‘‘in lieu thereof’’.

Page 2, line 4, strike ‘‘amendments’’ and insert ‘‘amendment’’.

Page 2, line 5, insert ‘‘the’’ before ‘‘enactment’’.

Amend the title so as to read:

A bill to extend the basic pilot program for employment eligibility verification,

and for other purposes.

PURPOSE AND SUMMARY

H.R. 3030 extends for 2 years the operation of the pilot programs

for employment eligibility verification that were instituted by the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996.

BACKGROUND AND NEED FOR THE LEGISLATION

I. BACKGROUND

The Immigration Reform and Control Act of 1986 (‘‘IRCA’’) made

it unlawful for employers to knowingly hire or employ aliens not

eligible to work and required employers to check the identity and

work eligibility documents of all new employees.1 If the documents

provided by an employee reasonably appear on their face to be genuine, the employer has met its document review obligation. Certain

documents, such as passports and resident alien cards, establish

both identity and work eligibility. Others, such as most Social Security cards, establish work eligibility. Others, such as drivers’ licenses, establish identity.

If a new hire produces the required documents, the employer is

not required to solicit the production of additional documents and

the employee is not required to produce additional documents. In

fact, an employer’s request for more or different documents than

are required, or refusal to honor documents that reasonably appear

to be genuine, shall be treated as an unfair immigration-related

employment practice if made for the purpose or with the intent of

discriminating against an individual because of such individual’s

national origin or citizenship status.2

The easy availability of counterfeit documents has made a mockery of IRCA. Fake documents are produced by the millions and can

be obtained cheaply.3 Thus, the IRCA system both benefits unscrupulous employers who do not mind hiring illegal aliens but want

to show that they have met legal requirements and harms employers who don’t want to hire illegal aliens but have no choice but to

accept documents they know have a good likelihood of being counterfeit.

II. THE BASIC PILOT PROGRAM

In response to the deficiencies of IRCA, title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

3

4See, generally, sections 403(a) and 404 of IIRIRA.

(‘‘IIRIRA’’) instituted three employment eligibility confirmation

pilot programs for volunteer employers that were to last for 4

years. The ‘‘basic pilot program’’ was implemented first, and expires in November 2001. Under the basic pilot, the proffered Social

Security numbers and alien identification numbers of new hires

would be checked against Social Security Administration and Immigration and Naturalization Service (‘‘INS’’) records in order to

weed out documents containing counterfeit numbers and real numbers used by multiple individuals and thus to ensure that new

hires are genuinely eligible to work. The pilot is available to employers having locations in California, Florida, Illinois, Nebraska,

New York and Texas. Approximately 1,758 employers are currently

participating in the pilot.

The pilot works as follows: 4

• As under current law, once an applicant has accepted a job

offer, he or she will present certain documents to the employer. The employer must examine the documents to determine whether they reasonably appear on their face to be

genuine and complete an I-9 form attesting to this examination.

• The employer will have 3 days from the date of hire to make

an inquiry by phone or other electronic means to the confirmation office established to run the mechanism. If the new

hire claims to be a citizen, the employer will transmit his or

her name and Social Security number. If the new hire claims

to be a non-citizen, the employer will transmit his or her

name, INS-issued number, and Social Security number.

• The confirmation office will compare the name and Social Security number provided against information contained in Social Security Administration records and will compare the

name and INS-issued number provided against information

contained in INS records.

• If in checking the records, the confirmation office ascertains

that the new hire is eligible to work, the operator will within

3 days so inform the employer and provide a confirmation

number.

• If the confirmation office cannot confirm the work eligibility

of the new hire, it will within 3 days so inform the employer

of a tentative nonconfirmation and provide a tentative nonconfirmation number.

• If the new hire wishes to contest a tentative nonconfirmation, secondary verification will be undertaken. Secondary

verification is an expedited procedure set up to confirm the

validity of information contained in the government records

and provided by the new hire. Under this process, the new

hire will typically contact or visit the Social Security Administration and/or the INS to see why the government records

disagree with the information he or she has provided. If the

new hire requests secondary verification, he or she cannot be

fired on the basis of the tentative nonconfirmation.

4

• If the discrepency can be reconciled within 10 days, then

confirmation of work eligibility and a confirmation number

will be given to the employer by the end of this period.

• If the discrepency cannot be reconciled within 10 days, final

denial of confirmation and a final nonconfirmation number

will be given by the end of this period. The employer then

has two options:

The employer can dismiss the new hire as being ineligible

to work in the United States.

The employer can continue to employ the new hire. The

employer must notify the Attorney General of this decision. If action is brought by the government, the employer

has the burden of proof in showing the new hire is eligible

to work. If the employer fails to so prove, the employer will

be deemed to have knowingly hired an illegal alien.

The SSA and the INS agree as part of the pilot to safeguard the

information provided to them by employers and to limit access to

the information as appropriate by law. An employer must agree not

to use the pilot for pre-employment screening of job applicants or

for support of any unlawful employment practice, not to verify selectively, and to ensure that the information it receives from the

government is used only to confirm employment eligibility and is

not otherwise disseminated.

Operation of the basic pilot program commenced in November

1997 and expires in November 2001.

Section 405 of IIRIRA required that the INS provide a report to

this Committee and the Senate Judiciary Committee on the operations of the pilot programs within 3 months after the end of the

third and fourth years in which the programs are in effect. The reports were to assess the benefits of the pilot programs to employers

and the degree to which they assist in the enforcement of the rules

regarding the employment of aliens and to include recommendations on whether or not the pilot programs should be continued or

modified.

The INS has not complied with section 405. The agency provided

Congress with no report after the third year of operation of the

basic pilot program and there is no assurance that one will be provided within the time limit specified after the fourth year of operation. The INS’s failure to provide reports as required by law is unfortunately a frequent failing of the agency. It can only be hoped

that once the immigration functions of the Justice Department are

restructured and the INS disbanded will such negligence and/or

malfeasance be a thing of the past.

In any event, this Committee must now decide upon reauthorization of the basic pilot program in absence of agency reports on the

program. The Committee has received word from businesses and

trade associations in the meat packing and processing industry

that the basic pilot program has been a great success and that they

favor a 2-year extension of the program. They stated in a letter to

the Committee that:

While the program does not provide 100% deterrence of persons seeking unauthorized employment, it is far superior to the

current practice. . . .

5

5See letter from the American Meat Institute, Cargill, Inc., ConAgra Foods, Inc., Farmland

Industries, Inc., IBP, Inc., the National Chicken Council, the National Turkey Federation, Seaboard Corporation, Smithfield Foods, Inc., and Tyson Foods, to House Judiciary Committee

Chairman F. James Sensenbrenner, Jr. (October 9, 2001).

...

Employers have embraced the additional tools granted by Congress to confirm that new employees are legally eligible to

work. These pilot programs enhance the current . . . employment verification process by providing employers with greater

assurances that they are not hiring unauthorized aliens and by

establishing larger obstacles to aliens seeking to work illegally.

This result is accomplished without disruption or inconvenience to U.S. citizens or aliens authorized to work.5

The Committee has received no adverse comment regarding the

basic pilot program.

III. H.R. 3030

In light of the continuing relevance of the original goals of the

basic pilot program and the evidence of its successful operation, the

Committee supports a 2-year extension. H.R. 3030 provides such an

extension.

The Committee can only hope that when it is again called upon

to consider the pilot program it will have in hand evaluation of the

program’s operation from the Justice Department.

HEARINGS

No hearings were held on H.R. 3030.

COMMITTEE CONSIDERATION

On November 1, 2001, the Subcommittee on Immigration and

Claims met in open session and ordered favorably reported the bill

H.R. 3030, by a voice vote, a quorum being present. On November

15, 2001, the Committee met in open session and ordered favorably

reported the bill H.R. 3030 with amendment by a voice vote, a

quorum being present.

VOTE OF THE COMMITTEE

There were no recorded votes on H.R. 3030.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

H.R. 3030 does not authorize funding. Therefore, clause 3(c) of

rule XIII of the Rules of the House of Representatives is inapplicable.

6

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill, H.R. 3030, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, November 29, 2001.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3030, the Basic Pilot Extension Act of 2001.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Mark Grabowicz, who

can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

H.R. 3030—Basic Pilot Extension Act of 2001.

CBO estimates that implementing H.R. 3030 would cost about $1

million in each of fiscal years 2002 and 2003 and less than

$500,000 annually over the 2004–2005 period, assuming the availability of appropriations. The bill would not affect direct spending

or receipts, so pay-as-you-go procedures would not apply. H.R. 3030

would impose a private-sector mandate, as defined by the Unfunded Mandates Reform Act (UMRA), but CBO estimates that the

direct cost of the mandate would fall well below the annual threshold established by UMRA ($113 million in 2001, adjusted annually

for inflation). The bill contains no intergovernmental mandates as

defined in UMRA and would impose no costs on state, local, or tribal governments.

The Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 directed the Immigration and Naturalization Service

(INS) and the Social Security Administration (SSA) to establish

three pilot programs, each lasting 4 years, to assist employers in

confirming the eligibility of prospective employees to work in the

United States. The programs provide employers with software,

training, and access to INS and SSA databases to determine work

eligibility. The major pilot program started in 1997 and will end in

2001, while the two other programs began in 1999 and will termiVerDate 11-MAY-2000 23:21 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\HR310P1.XXX pfrm07 PsN: HR310P1
7

nate in 2003. H.R. 3030 would extend the length of each program

by 2 years.

According to the INS and the SSA, the agencies spend a total of

about $1 million annually to operate the programs. Implementing

H.R. 3030 would extend the major pilot program through the end

of fiscal year 2003 and would extend the other two programs until

the middle of fiscal year 2005. Based on information from the two

agencies, CBO estimates that the bill would cost about $1 million

annually in 2002 and 2003, and less than $500,000 annually in

2004 and 2005, all from appropriated funds.

H.R. 3030 would impose a private-sector mandate by requiring

certain employers to participate in the pilot programs. Participation in the programs is voluntary except for employers who have

been found to have violated certain immigration laws. According to

the INS, one company in Texas is required to participate in the

pilot programs. Therefore, CBO estimates that the direct cost, if

any, to comply with the mandate would be minimal and would fall

well below the annual threshold established by UMRA ($113 million in 2001, adjusted annually for inflation).

The CBO staff contacts for this estimate are Mark Grabowicz (for

Federal costs), who can be reached at 226–2860, and Paige Piper/

Bach (for impacts on the private sector), who can be reached at

226–2940. This estimate was approved by Robert A. Sunshine, Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 4 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title.

This Act may be cited as the ‘‘Basic Pilot Extension Act of 2001.’’

Section 2. Extension of Programs.

Section 2 amends section 401(b) of IIRIRA (8 U.S.C. sec. 1324a

note) to provide that unless the Congress provides otherwise, the

Attorney General shall terminate a pilot program established by

title IV of IIRIRA at the end of the 6-year period beginning on the

first day the pilot program is in effect. This will apply not only to

the basic pilot program (section 403(a) of IIRIRA) but also to the

‘‘citizen attestation pilot program’’ (section 403(b)) and the ‘‘machine-readable-document pilot program’’ (section 403(c)). However,

the citizen attestation pilot program began operation in June 1999

and the machine-readable-document pilot program began in May

1999 and they are not about to expire.

Section 3. Effective Date.

Section 3 provides that the amendment made by this Act shall

take effect on the date of the enactment of the Act.

8

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

SECTION 401 OF THE ILLEGAL IMMIGRATION REFORM

AND IMMIGRANT RESPONSIBILITY ACT OF 1996

SEC. 401. ESTABLISHMENT OF PROGRAMS.

(a) * * *

(b) IMPLEMENTATION DEADLINE; TERMINATION.—The Attorney

General shall implement the pilot programs in a manner that permits persons and other entities to have elections under section 402

of this division made and in effect no later than 1 year after the

date of the enactment of this Act. Unless the Congress otherwise

provides, the Attorney General shall terminate a pilot program at

the end of the ø4-year¿ 6-year period beginning on the first day the

pilot program is in effect.

* * * * * * *

9

COMMITTEE JURISDICTION LETTERS

10

MARKUP TRANSCRIPT

BUSINESS MEETING

THURSDAY, NOVEMBER 15, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:10 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order.

The next item on the agenda is the adoption of H.R. 3030 to extend the Basic Pilot employment verification system and for other

purposes.

11

The Chair recognizes the gentleman from Pennsylvania, Mr.

Gekas, the Chairman of the Subcommittee on Immigration and

Claims.

Mr. GEKAS. Thank you, Mr. Chairman.

The Subcommittee on Immigration and Claims reports favorably

the bill H.R. 3030 and moves its favorable recommendation to the

full House.

Chairman SENSENBRENNER. Without objection, the bill H.R. 3030

will be considered as read and open for amendment at any point.

[The bill, H.R. 3030, follows:]

12

I

107TH CONGRESS

1ST SESSION H. R. 3030

To extend the ‘‘Basic Pilot’’ employment verification system, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 4, 2001

Mr. LATHAM introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education

and the Workforce, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

To extend the ‘‘Basic Pilot’’ employment verification system,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Basic Pilot Extension

5 Act of 2001’’.

6 SEC. 2. EXTENSION OF PROGRAM.

7 Section 401(b) of the Illegal Immigration Reform and

8 Immigrant Responsibility Act of 1966 (division C of Pub9 lic Law 104–208 (Sept. 30, 1996), 110 Stat. 3009–656)

13

2

HR 3030 IH

1 is amended by striking ‘‘4-year period’’ and inserting in

2 lieu thereof ‘‘6-year period’’.

3 SEC. 3. EFFECTIVE DATE.

4 The amendments made by this Act shall take effect

5 on the date of enactment of this Act.

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14

Ms. JACKSON LEE. Mr. Chairman?

Chairman SENSENBRENNER. The Chair recognizes the gentleman

from Pennsylvania to strike the last word.

Mr. GEKAS. I thank the Chair.

The Chair in its introductory remarks alluded to the fact that

this is a program that is already in place and working very handsomely. The purpose of this legislation here today is to extend the

validity of that program beyond its expiration date of November 30,

2001.

In 1986, we made it illegal for employers to knowingly hire people who are aliens ineligible to work in the United States. We decided as a Congress to crack down on that. And then we imposed

on employers stringent rules on what documentation they should

accept follow and what inquiries they should conduct, et cetera,

and pretty soon it became a mess on both sides of the application

desk, the employer and the employee.

What the Pilot Program did 5 years ago was to simplify the process and put the employer under the onus of checking the Social Security and INS numbers of the prospective employee. And the law

would allow the employer to rely on that, thus everybody could go

merrily on his way in the employer-employee relationship.

The pilot program has worked. It is supported by countless organizations, who have found it feasible and workable.

And I ask the Members to support the extension of this program.

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms.

Jackson Lee.

Ms. JACKSON LEE. I thank the gentleman and the Chairman and

the Chairman of the Subcommittee.

I join in supporting the extension of this pilot program, acknowledging in the backdrop of all of our minds September 11th.

This will be helpful to employers around the country, but in particular to areas where there is a large number of immigrants. This

will protect the immigrants with legal documentation, and it will

protect employers as well.

And so I look to this as a fair bill that addresses the posture that

I think we would like to be in, in this country, which is a respect

for immigration and for laws.

This should complement, ultimately, legislation and a reassessment our vocational visa and student visa program, which will

allow us to be more accurate in who obtains those visas and, as

well, be able to ascertain the right utilization of them.

In particular, I would just add the necessity of having to determine whether someone is coming to be trained as an airline pilot

for good reasons or negative reasons. That has nothing to do with

this particular legislation but certainly ties into individuals who

are documented but, as well, documented and using visas for the

right reason.

So I support this legislation because I think it helps the basic

policies of immigration law. And that is to help create a pathway

for access to legalization and to applaud those who have legal

standing.

I yield back.

[The statement of Ms. Jackson Lee follows:]

15

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Thank you Mr. Chairman. I am gratified to be here today to vote on a bill that

will improve the employment verification process. As you know, the Congress is exploring new ways, methods, and techniques to ensure the security and integrity of

the way in which we admit and track aliens who apply for non-immigrant visas. We

do live in dangerous times. This bill is extending a pilot program that would improve and ensure integrity in the employment verification process.

This bill, introduced by Congressman Tom Latham extends the Basic Pilot employment verification program under expedited procedures. The Basic employment

verification system is a program that many companies use to ensure that new companies are legal. This program is a voluntary electronic employment verification system, which allow employers to verify I-9 documents. Companies with facilities in

any of the ‘‘pilot’’ states may use the verification program throughout all of their

facilities, including states outside the program. Approximately 2,000 employers are

presently using the Basic Pilot Program.

In Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Congress authorized the Immigration and Naturalization Service to conduct

voluntary pilot programs that allow these participating employers to access by computer certain governmental databases for purposes of new employment verification.

This program allows employers signing a memorandum of understanding (MOU)

with the INS to query an INS-Social Security Administration (SSA) data base regarding the work-authorization status of new employment applicants, instead of

simply recording and retaining the numbers of documents that such applicants

chose to submit. The Basic Pilot Program provides greater ease of verification for

employers and employees and greater deterrence of the use of fraudulent INS and

SSA documents.

Industries such as meat packing and food processing have stated an interest in

cooperating with the INS to maximize its ability to ensure its interest in cooperating

with the INS to maximize its ability to ensure its workforce is authorized. Many

believe that while the program does not provide 100% deterrence of persons seeking

unauthorized employment, it is far superior to the current practice of recording in

I-9 forms the numbers of documents physically presented by new employees.

I will support this legislation because it is needed because Section 401(b) of the

1996 Act states that ‘‘the . . . Attorney General shall terminate a pilot program at

the end of the 4-year period beginning on the first day the pilot program is in effect.’’ H.R. 3030 extends the life of the program by two years, from four years to

six years. This pilot program enhances the current I-9 form employment verification

process by providing employers with greater assurances that they are not hiring unauthorized aliens and by establishing larger obstacles to aliens seeking to work illegally.

I support this legislation.

Chairman SENSENBRENNER. Are there amendments?

Hearing none, the Chair notes the presence of a reporting

quorum. The question occurs on the motion to report the bill H.R.

3030 favorably.

Those in favor will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it. The motion to report favorably is agreed to.

Without objection, the Chairman is authorized to move to go to

conference pursuant to House rules. Without objection, the staff is

directed to make any technical and conforming changes. And all

Members will be given 2 days as provided by House rules in which

to submit additional dissenting, supplemental, or minority views.

[Intervening business.]

The Chair thanks the Members for their indulgence and support.

This concludes the business on the notice, and the Committee is

adjourned.

[Whereupon, at 11:06 a.m., the Committee was adjourned.]

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