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INS AND OFFICE OF SPECIAL COUNSEL

FOR IMMIGRATION RELATED

UNFAIR EMPLOYMENT PRACTICES

HEARING

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MARCH 21, 2002

Serial No. 68

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

ED BRYANT, Tennessee 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

GEORGE W. GEKAS, Pennsylvania, Chairman

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

CHRIS CANNON, Utah, Vice Chair

JEFF FLAKE, Arizona 

SHEILA JACKSON LEE, Texas 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

LORA RIES, Counsel 

CINDY BLACKSTON, Professional Staff 

LEON BUCK, Minority Counsel 

(III)

C O N T E N T S 

MARCH 21, 2002

OPENING STATEMENT 

Page 

The Honorable George W. Gekas, a Representative in Congress From the 

State of Pennsylvania, and Chairman, Subcommittee on Immigration and 

Claims ................................................................................................................... 1

The Honorable Sheila Jackson Lee, a Representative in Congress From the 

State of Texas, and Ranking Member, Subcommittee on Immigration and 

Claims ................................................................................................................... 2

The Honorable Bob Barr, a Representative in Congress From the State of 

Georgia .................................................................................................................. 3

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 32

WITNESSES 

Mr. Juan Carlos Benitez, Special Counsel, Department of Justice, Civil Rights 

Division, Office of Special Counsel for Immigration Related Unfair Employment Practices 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 8

Mr. Joseph R. Greene, Acting Deputy Executive Associate Commissioner for 

Field Operations, Immigration and Naturalization Service 

Oral Testimony ..................................................................................................... 12

Prepared Statement ............................................................................................. 13

Mr. Otto Kuczynski, President, Fairfield Textiles Corporation 

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 19

Mr. Wade Henderson, Leadership Conference on Civil Rights 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 27

APPENDIX 

STATEMENTS SUBMITTED FOR THE HEARING RECORD

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

in Congress From the State of Michigan ........................................................... 49

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions From Rep. Bob Barr to Juan Carlos Benitez, Esq., Special Counsel, 

United States Department of Justice, Office of Immigration-Related Unfair 

Employment Practices ......................................................................................... 50

(1)

INS AND OFFICE OF SPECIAL COUNSEL FOR 

IMMIGRATION RELATED UNFAIR EMPLOYMENT PRACTICES 

THURSDAY, MARCH 21, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9 a.m., in Room 

2237, Rayburn House Office Building, Hon. George W. Gekas 

[Chairman of the Subcommittee] presiding. 

Mr. GEKAS. The hour of 9 o’clock having arrived, the Committee 

will come to order. Because of the rules of House, which also flow 

down to the rules of the Committee, we cannot proceed until two 

Members of the Committee are here for a hearing. After I catch my 

breath, I will finish my dissertation. 

We note that the gentleman from Georgia, at whose request this 

hearing is being held, is present, and we will hear from him shortly, but not until a second Member of the Subcommittee should appear. In the meantime, you have your choice of hearing Shakespearean sonnets or music from the ‘‘Music Man.’’ [Laughter.] 

Ms. Jackson Lee is present. She being the Ranking Minority 

Member of this Subcommittee, she, with the chair, now constitute 

a quorum for the purpose of this oversight hearing. 

The hearing is for the purpose of examining some of the consequences of the Immigration Reform and Control Act of 1986, 

which was contemplated and actually debated and passed on the 

premise that employers had to do more to make sure that 

guestworkers were fully documented and properly placed in the 

workforce of a particular site. 

What began to happen, we began to hear anecdotes, and even 

more than anecdotes, some empirical evidence to the effect that 

when the employer looks over the documents that if they appear 

on their face to be valid, that that was prima facie evidence that 

the alien was properly documented and that the employer did his 

level best to ascertain whether or not this individual was legally 

or illegally on his premises, but that led to other kinds of problems. 

Because if indeed the employer questioned further the alien’s handful of documents and wanted to provide additions, wanted the alien 

to provide additional evidence of his status, then the employer 

could be charged with some kind of discrimination based on a perceived motive on his part or other kinds of evidence that he might 

be using this device of asking for more documents as a rationale 

2

for not hiring this particular individual or not reporting the incident. 

That’s what this oversight hearing is about. The gentleman from 

Georgia, Mr. Barr, requested the hearing because he wishes to 

bring to the attention of the Congress certain factors in this large 

subject. The witnesses that we have before us who will be testifying in a short time will aid and abet the process of looking into 

what has happened to this particular situation and what is happening today as we meet here in this large oversight of this particular problem. 

We now yield to the lady from Texas for an opening statement, 

and we note the presence of the lady from Pennsylvania, Congresswoman Hart, a Member of the Committee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for 

holding this hearing. You have captured the hearing appropriately, 

and I thank Mr. Barr for raising the issue before this Committee. 

It is an issue that falls heavily on many of our jurisdictions and 

certainly around the country no matter where you might live. 

Whether north or south, east or west, there are industries that utilize a large number of immigrants or new citizens in their particular workforce. These are important assets to America. These 

are individuals who have come, in most instances, to seek opportunity and equality. They are hardworking. They are taxpaying. 

The are the recipients, prospectively, of the legislation just passed 

in the United States House 2458I, where we are seeking to assist 

individuals, reunite with their families. 

We realize, however, the intent behind the law, which was to ensure that employers were not abusive in taking advantage of those 

without documentation and as well that we did not encourage 

smuggling organizations to begin to fuel human resources for different industries. We think that is valid. We think it is valid that 

people come to this country, access legalization, and begin the appropriate process. 

We likewise think it is valid to seek to restructure the INS so 

that we can assure that the procedures are readily available and 

that backlogs do not occur, but we have seen abuses. We have seen 

abuses to the extent that employers’ places have been raided. In 

particular, in my home community in San Antonio, where a large 

tech firm with Indian American, Indo-American, from India, where 

they were working legitimately and were raided and hauled away 

and incarcerated before any further explanation could be given. 

That is wrong. 

At the same time, we think it is appropriate for employers who 

abuse the circumstances to be penalized, but we do want to have 

a balance, and I am delighted to see Mr. Henderson, who understands balance and understands the laws, in conjunction with very 

able witnesses that will be here this morning, I will look forward 

to hearing them. 

And, Mr. Chairman, I will simply conclude by saying a summary 

of some things. I always start by suggesting that we are a Nation 

of laws, but we are also a Nation of Immigrants, and we must find 

a way to balance the responsibility. Now, after the horrific acts of 

September 11th, I also say that immigration does not equate to terrorism, and so it is important that we hear from these witnesses 

3

to ensure that we can provide some road map to effectively see how 

to address such employee-employer situations. 

With respect to unfinished business, Mr. Chairman, I would like 

to put on the record my continued interest in the issue of INS restructuring that I believe is extremely important and appreciate 

that there have been some ongoing discussions, but I also put on 

the record my concern with Gao Zhan, the Chinese woman who has 

a husband as a citizen and a son as a citizen and to be able to address her circumstance. 

Let me likewise put on the record the mother of Amadou Diallo, 

of which we have made a request for there to be a hearing on her 

status through a private citizen bill, and for the stretching of my 

imagination, I cannot examine the Democrats cannot secure the 

same kind of fair treatment in this Committee as those of the majority in asking for hearings on issues that they deem to be of great 

important. I make this request again publicly, in spite of letters 

that have been sent that have rejected the request. I think that in 

the spirit of comity, which lessens every day here, that we could 

have this matter reconsidered. 

With that, I yield back the balance of my time. 

Mr. GEKAS. We thank the lady. 

With us the gentleman from Georgia, a Member of the Judiciary 

Committee. Although he is not a Member of this Subcommittee, he 

is the chief impulse for having this particular oversight hearing, 

and we could have put him at the witness table to present his set 

of facts, as he sees them, but now we ask him to ex officio present 

an opening statement. 

Mr. BARR. Thank you very much, Mr. Chairman, and I thank you 

and the other Members of the Subcommittee for allowing me to be 

with you all here today to participate in a very important hearing. 

I would also like to thank the staff of the Subcommittee for their 

hard working in developing and organizing the hearing and the 

materials relating thereto. 

Mr. Chairman, as I think you have already indicated very appropriately, American employers are in the burdensome position of 

being both enforcer and target of immigration laws. The Immigration Reform and Control Act, or IRCA, of 1986 states that employers must hire only U.S. citizens and aliens who are authorized to 

work in the United States. Employers are required to verify the 

employment eligibility of each worker hired to avoid civil fines and 

penalties, criminal penalties, for a failure to comply with the laws 

recordkeeping requirements. 

At the same time, the employer may not discriminate against foreign-born job applicants by requesting any other information beyond what is collected on the INS employment eligibility form or 

what is commonly referred to as the I–9 form. If an employer requests any further documentation based, for example, on reasonable suspicion to validate a candidate’s legal status, the Office of 

Special Counsel for Immigration Related Unfair Employment Practices may initiate an investigation and/or prosecution on the 

grounds that the applicant’s civil rights were violated by the company. 

In short, the law seems to put American companies in a ‘‘Catch22’’ situation by requiring employers to be vigilant to hire only 

4

those job applicants authorized to work in the United States, yet 

prohibiting them from asking too many questions to ascertain legal 

status, lest the employer be investigated and charged with national 

origin and citizenship status discrimination. 

It should come as no great shock that IRCA’s employment verification process is easily thwarted by fraud and that large numbers of unauthorized aliens have used fraudulent documents to obtain employment in the United States. The GAO, for example, has 

testified before this Subcommittee on how large-scale counterfeiting 

has made employment eligibility documents widely available. 

Employers seeking to comply with the law can, and are, easily 

deceived by fraudulent documentation used by unauthorized aliens, 

yet are not provided the flexibility to further ascertain the validity 

of those documents. Even more troubling is the INS and OSC enforcement strategy. There appears to be no rational framework INS 

and OSC follow when investigating and prosecuting civil rights violations in these laws. After multiple meetings and correspondence 

over a 2-year period with both INS and the OSC on this matter, 

we have not been able to clarify, they have not been able to clarify, 

one, if there exists a process to weed out false claims; two, how and 

why particular employers are targeted, while others are not; three, 

how employers may verify if a prospective employee is, in fact, a 

legal worker and avoid a civil rights violation; or, four, the frequency with which INS and OSC, that is, the Office of Special 

Counsel, pursue litigation against American businesses on civil 

rights grounds. In fact, the GAO has testified that the strategy 

does not describe the criteria INS will use to open investigations 

and the OSC to pursue claims against employers. I am hopeful the 

INS and OSC will further clarify for us today their respective roles 

and the procedures. 

Mr. Chairman, immigration policy must assist, not penalize, the 

American business community. The hiring process under current 

immigration law is completely irrational and counterproductive. 

The employer must hire the worker before inquiring as to whether 

the employee has the proper authorization to work in the United 

States. If the inquiry begins before hiring occurs, the OSC can step 

in, slap the employee with a civil rights violation. This is patently 

unfair to American companies and, again, seems counterproductive 

to the purpose and intent of both this immigration law and immigration laws generally. 

I do look forward to hearing from our witnesses, from both the 

private and the Government sector today, and look forward to continuing to work with them and with the Subcommittee which has, 

as always, provided leadership in this important area. 

I yield back. 

Mr. GEKAS. We thank the gentleman. 

The witnesses who are with us today begin with the introduction 

of Juan Carlos Benitez, who was nominated by President Bush and 

confirmed by the Senate in 2001, to be Special Counsel for Immigration Related Unfair Employment Practices. 

Prior to joining the Justice Department, Mr. Benitez was of counsel to the law firm of Long Aldridge and Norman. From 1995 to 

1999, he was both Associate General Counsel and Legislative Director for the Puerto Rico Federal Affairs Administration in WashVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
5

ington, D.C. He also clerked for Federal District Court Judge Raymond L. Acosta. Mr. Benitez has a B.A. in judicial systems from 

Sacred Heart University in San Juan and received his J.D. from 

the Inter-American University Law School. 

He is joined at the witness table by Joseph Greene, the Acting 

Deputy Executive Associate Commissioner for Field Operations 

with the Immigration and Naturalization Service. Mr. Greene 

began his career with the INS as an inspector at JFK Airport in 

New York in 1973. He has held numerous positions with the INS, 

including Criminal Investigator Examiner, Supervisory Special 

Agent, District Director in Denver and Assistant Commissioner for 

Investigations at INS headquarters. Mr. Greene has a master’s degree in philosophy from Fordham University. 

With them at the witness table is Otto Kuczynski, the founder 

of the Fairfield Textiles Corporation in Fairfield, New Jersey, 

which he organized in 1976. Mr. Kuczynski immigrated to the 

United States immigrated to the United States from Germany in 

the mid-1950’s. He has spent his entire career in the textiles business in both Germany and the U.S. His company has been pursued 

by both the INS and the Office of Special Counsel. 

And the final witness will be Wade Henderson, the Executive Director of the Leadership Conference on Civil Rights. Prior to this 

position, Mr. Henderson was the Washington Bureau director of 

the NAACP. He also served as the Associate Director of the Washington National Office of the ACLU and is Assistant Dean and Director of the Minority Student Program at Rutgers University 

School of Law. Mr. Henderson is a graduate of Howard University 

and Rutgers University School of Law. 

With that we begin with the routine of advising our witnesses 

that their written statements will become a matter of record, without objection, and that we ask each to try to limit the oral presentation, review of their written testimony, to 5 minutes. 

So we will begin in the order in which our witnesses were introduced. 

Mr. Benitez? 

STATEMENT OF JUAN CARLOS BENITEZ, SPECIAL COUNSEL, 

DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, OFFICE 

OF SPECIAL COUNSEL FOR IMMIGRATION RELATED UNFAIR 

EMPLOYMENT PRACTICES 

Mr. BENITEZ. Yes, thank you, Mr. Chairman and Members of the 

Subcommittee, for the opportunity to talk to you today. 

My name is Juan Carlos Benitez, and since November 12th, 

2001, the day the United States Senate approved my appointment, 

I became Special Counsel for Immigration Related Unfair Employment Practice at the Department of Justice. 

Mr. GEKAS. Would you pull the microphone closer to you, please. 

Mr. BENITEZ. As such, I head the Office of Special Counsel for 

Immigration Related Unfair Employment Practices, probably making me the public servant with the longest job title in the Administration or at least in the Department of Justice. If this Subcommittee were to decide to make any amendments to our enabling 

statute, I would strongly recommend to include as one of them the 

renaming of the office—just kidding. 

6

Presently, the Office of Special Counsel is part of the Department 

of Justice, Civil Rights Division. Even though we protect all Americans from workplace discrimination, we are also the only office in 

the Federal Government specifically designed and empowered to 

protect the civil rights of immigrant workers. 

With your permission, I will not read my prepared written testimony, but will briefly state what makes OSC unique and what 

Government agencies, our programs and the challenges we face in 

the future so that we may be able to have more time for questions. 

The Office of Special Counsel enforces the anti-discrimination 

provisions of the Immigration and Nationality Act and will soon 

begin enforcement of the failure to select cause of action under the 

American Competitiveness and Workforce Improvement Act of 

1998. 

OSC, as commonly known, was established in 1986 to prevent 

discrimination under the Immigration Reform & Control Act, commonly known as IRCA. IRCA prohibited, for the first time, the 

knowing hiring of unauthorized workers in the United States. At 

that time, many felt employer sanctions would lead to discrimination against legal immigrants, Hispanic and Asian Americans and 

others that an employer might perceive as foreign. They were right. 

Even today, 16 years after the law was passed, we see discriminatory treatment of U.S. citizens and lawful immigrants based 

upon whether they appear or sound foreign. One of OSC’s major 

priorities and our number one challenge is to educate the general 

public, both employers and employees, about their rights and obligations under our statute. I am convinced that only through an aggressive education program will we finally be able to prevent this 

type of discrimination from occurring in the future. 

In accordance with this, OSC has established an early intervention program which is unique among Government anti-discrimination enforcement agencies and is based upon the common-sense 

idea that prevention of discrimination and early intervention are 

more important than obtaining a remedy after the fact. 

The early intervention program is made possible by OSC’s two 

toll-free hotlines; one for employers and one for employees, through 

which we receive approximately 15,000 calls a year. Callers are not 

tied up in an endless computerized telephone tree. Rather, they 

speak directly to staff that are charged with resolving problems informally and quickly, without the need for an official charge, investigation or lawsuit. Our staff arranges for an immediate informal 

mediation session, in which we work with both the employer and 

the employee and attempt to resolve the problem so that the employer can hire the person it wants and the employee can work. 

Employers benefit because we clear up any questions they may 

have about proper application of the law. They get to hire the person they always wanted to hire, and they have a Government agency working with them, rather than investigating them for wrongdoing. Employees and applicants benefit because they get to earn 

a living without delay. Our early intervention program reflects that 

we take seriously our statutory mandate to educate the public, both 

employers and workers, about our work and proper employment 

procedures. 

7

We also put a premium on developing partnerships with business, labor and the immigrant community. Since my appointment, 

I have already met with the representatives of employment groups, 

employer groups and sought their advice on how to better communicate with employers. We plan to meet with State and local chambers of commerce, the Small Business Administration and other 

types of employer organizations. 

We have renewed our effort to work comparatively with State 

and local Governments. We have met with representatives of a 

number of major cities with large immigrant populations and are 

negotiating agreements to engage in cooperative efforts to educate 

the employee and the employer communities on their rights and responsibilities under the anti-discrimination provision. 

It is important to recognize that it is difficult earning the trust 

of one portion of our protected class, the lawful immigrant community. Many come from countries where governments and law enforcement agencies are not to be trusted. Indeed, many have escaped persecution in their own home countries. Others don’t want 

to file a complaint and contact the Government, but simply move 

on to obtain a new job and support their family. 

Outreach to this part of our protected class is a challenge, but 

OSC has taken many creative avenues to reach this portion of our 

constituency, including participating in radio interviews in various 

languages, such as Haitian-Creole and Spanish. 

When education and early intervention are not successful, we 

prosecute entities that violate the law. OSC has obtained remedies 

for U.S. citizens, naturalized citizens and legal immigrants with 

employment authorization. The work we do is best described by the 

people we represent. We settled a case in New York City against 

a New York City law firm, on behalf of a naturalized U.S. citizen 

who saw an ad in the Sunday newspaper for a clerk typist position. 

She called the number Monday morning and was told the job was 

already filled. She was surprised, since the advertisement had just 

run the day before, and she asked her daughter to call an hour 

later. The daughter was given an interview. 

What was the difference between the woman and her daughter? 

The mother was a United States citizen born in Uruguay and had 

a Spanish accent. The daughter was born in the United States and 

apparently had no accent. We filed a suit and settled her case by 

obtaining a $15,000 back pay, and a $1,500 civil penalty, and training for the employer so that this type of discrimination would never 

occur again in that firm. 

We have a number of cases in which United States citizens of 

Hispanic origin and lawful immigrants were denied employment 

because their lawful documents were rejected by employers as ‘‘suspicious’’ even though a non-Hispanic U.S. citizen presented similar 

documents that were accepted. 

In one case involving a fruit processor in Oregon, the company 

engaged in workplace discrimination by subjecting individuals who 

were seeking employment to different hiring procedures if they 

looked or sounded foreign. The company asked applicants, whom it 

believed were foreign, for their work papers before providing employment applications. People who appeared to be U.S. citizens 

were provided the application with no questions asked. 

8

Mr. GEKAS. Will the witness try to draw it to a close, please. 

Mr. BENITEZ. Sure. The events of September 11th created a new 

program challenge for the Office of Special Counsel. While it is 

clear that we all need to be more vigilant, we must also be careful 

not to assume that immigration status is the sole predictor of 

whether or not an individual poses a threat. 

As the President has pointed out so often, America’s quarrel is 

with terrorism, not with persons who wish to contribute peacefully 

to our American society. I am proud the OSC was one of the first 

components within the Government to distribute information to 

both employers and workers regarding concerns of discrimination 

following the World Trade Center and Pentagon attacks. This information was distributed to the employer associations, immigrant associations and has been posted on the OSC’s website. 

In closing, I note that we take seriously our statutory responsibilities to enforce the law and are proud of the role we play in 

ensuring that our Nation’s civil rights laws are fairly enforced. 

Thank you for the opportunity to present this testimony. I would 

be happy to answer any questions that you may have. 

[The prepared statement of Mr. Benitez follows:]

PREPARED STATEMENT OF JUAN CARLOS BENI ́TEZ

Mr. Chairman and Members of the Subcommittee: 

Thank you, Mr. Chairman, and Members of this Subcommittee, for the opportunity to talk with you today. I am Juan Carlos Benı ́tez, the Special Counsel for 

Immigration Related Unfair Employment Practices. I hold a Presidentially Appointed/Senate Confirmed position. I assumed the position of Special Counsel after 

the Senate approved my nomination on November 13, 2001. Today I will tell you 

about the Office that I lead, the statutes that we enforce, the lawsuits that we file, 

and the special efforts we take to ensure that the statutory rights of U.S. citizens 

and documented aliens are protected and enforced. 

I. THE OFFICE OF SPECIAL COUNSEL

I lead the Office of the Special Counsel for Immigration Related Unfair Employment Practices, or OSC for short. The OSC is part of the U.S. Department of Justice’s Civil Rights Division. The OSC’s mission is to protect United States citizens 

and work-authorized aliens from illegal employment discrimination, as defined by 

federal statutes. 

The OSC relies on several means to achieve this mission. First, we undertake traditional methods that are familiar to most people: investigation and litigation. Second, we have a vigorous informational outreach program directed towards employers 

and potential victims of discrimination. Third, we use a unique early intervention 

program that enables us to resolve potential charges of discrimination early—before 

they result in formal charges. 

II. OFFICE OF SPECIAL COUNSEL ENFORCEMENT OF 8 U.S.C. § 1324B

The Immigration Reform and Control Act of 1986 (known as IRCA) created OSC 

and the law it enforces, 8 U.S.C. § 1324b. Indeed, we owe our existence to a member 

of this Subcommittee, Congressman Frank of Massachusetts, the author of the 

amendment that would become Section 1324b. 

Section 1324b prohibits certain types of employment discrimination. Put simply, 

Section 1324b prohibits employment discrimination on the basis of citizenship status or national origin, and also prohibits certain unfair document practices. Under 

IRCA, employers in the United States were, for the first time, required to verify the 

identity and work authorization of every new employee. IRCA also made it illegal 

for employers in the United States to knowingly hire undocumented aliens. An employer who failed to verify a new employee’s identity and work authorization, or who 

knowingly hired an undocumented alien, could be subject to civil or criminal penalties. 

When IRCA was under consideration, there was concern that employers would 

seek to avoid penalties for hiring undocumented aliens by refusing to hire anyone 

9

who did not look or sound ‘‘American.’’ To address those concerns, IRCA identified 

and prohibited certain immigration-related unfair employment practices in an effort 

to prevent employers from discriminating against U.S. citizens and work-authorized 

aliens. IRCA created a new legal cause of action for citizenship status discrimination, extended the jurisdiction of existing federal laws prohibiting national origin 

discrimination to employers of 4 to 14 employees, directed that cases alleging violations of Section 1324b be heard by specially trained Administrative Law Judges 

with the U.S. Department of Justice, Office of the Chief Administrative Hearing Officer (‘‘OCAHO’’), and created the position that I hold and the Office that I lead. 

IRCA also mandated an outreach and education program that has proven to be a 

mainstay in our efforts to prevent unlawful discrimination against U.S. citizens and 

work-authorized aliens. 

A. Investigation of Charges 

Section 1324b provides that the Special Counsel shall investigate charges of discrimination and, where there is reasonable cause to believe that the charge is true, 

prosecute employers accused of discrimination. Much of my Office’s time is devoted 

to the investigation of charges of discrimination. The conduct of our investigations 

is governed by statute and regulation. The statute provides that the Special Counsel 

’shall investigate each charge received...’’ 8 U.S.C. § 1324b. Within 120 days of 

the receipt of a complete charge, the Special Counsel must determine whether there 

is reason to believe the charge is true and whether or not to bring a complaint based 

on the charge before OCAHO. 8 U.S.C. § 1324b(c)(2). OSC processes all charges received and made complete, and has no backlog of cases. 

B. Independent Investigations 

In addition to conducting charge-based investigations, the Special Counsel may 

conduct independent investigations to determine if a person or entity has engaged 

or is engaging in illegal discrimination as defined by the statute. 8 U.S.C. 

§ 1324b(d)(1), 28 C.F.R. § 44.304. The Special Counsel may do so when there is ‘‘reason to believe that a person or entity has engaged in or is engaging in [illegal discrimination].’’ 28 C.F.R. § 44.304(a). 

III. CAUSES OF ACTION UNDER 8 U.S.C. § 1324B. 

The statute provides:

It is an unfair immigration-related employment practice for a person or other 

entity to discriminate against any individual (other than an unauthorized alien, 

as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—(A) because of such individual’s 

national origin, or (B) in the case of a protected individual . . . because of such 

individual’s citizenship status.

8 U.S.C. § 1324b. The Statute also contains a broad prohibition against intimidation 

or retaliation and prohibits certain unfair documentary practices relating to the verification of an employee’s identity and work authorization. 8 U.S.C. § 1324b(a)(5),(6). 

I will discuss each in turn. 

A. Citizenship Status Discrimination 

Citizenship status discrimination is discrimination against an individual on the 

basis of his or her immigration or citizenship status. For example, an employer who 

refuses to hire an applicant who is a work-authorized immigrant simply because the 

applicant is an immigrant has engaged in citizenship status discrimination. The 

pre-IRCA case of Espinoza v. Farah, 414 U.S. 86 (1973) addressed the issue of citizenship status discrimination. In that case, Mr. and Mrs. Espinoza alleged that 

Farah Manufacturing’s U.S. citizens-only employment policy violated Title VII of the 

Civil Rights Act of 1964. Mr. and Mrs. Espinoza asserted that this policy was an 

act of national origin discrimination. Writing for the majority, Justice Thurgood 

Marshall held that Farah’s citizens-only policy was not national origin discrimination, but rather was discrimination on the basis of alienage. The Court stated that 

Espinoza’s national origin (Hispanic) was irrelevant, and in fact Farah hired overwhelming numbers of Hispanics at the factory in question. Instead, Farah’s distinction was based on citizenship status and the fact that Mrs. Espinoza was not a citizen of the United States. Since Title VII did not prohibit citizenship status discrimination, there was no remedy for this conduct under federal law. 

IRCA’s enactment made illegal the behavior engaged in by Farah. Under IRCA, 

‘‘protected individuals’ can maintain a cause of action for citizenship status discrimination. Section 1324b defines ‘‘protected individuals’ as persons who are lawful perVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
10

manent residents, temporary residents admitted under IRCA’s amnesty program, 

refugees and persons granted political asylum. In the case of permanent residents, 

individuals who fail to apply for naturalization within 6 months of becoming eligible, or who fail to complete the naturalization process within 2 years of having applied for naturalization, lose their status as protected individuals. 

B. National Origin Discrimination 

National origin discrimination is, as the phrase implies, discrimination against an 

individual because of the individual’s place of birth or ancestry. For example, an employer’s failure to hire an individual because she is from Mexico is national origin 

discrimination. Similarly, discrimination against a person because their parents are 

from a foreign country is national origin discrimination. The OSC’s jurisdiction over 

national origin cases is limited to employers of between 4 and 14 individuals. Only 

a small percentage of the OSC’s cases and matters involve national origin discrimination. However, they do occur. For example, the OSC recently had a case where 

a woman who is fluent in English but speaks with a thick accent called a small law 

firm in response to an advertisement for a legal technician. Within moments the 

woman was told that the position had been filled. Minutes later the woman’s daughter, who speaks English with no accent whatsoever, called the same firm in response to the same advertisement. The daughter was invited in for an interview. 

This powerful evidence of national origin discrimination allowed OSC to obtain a 

prompt settlement in favor of the woman. 

C. Unfair Documentary Practices (Document Abuse) 

As I mentioned earlier, IRCA requires that employers verify the identity and work 

authorization of all new employees. As part of that process, the employee must complete and the employer must retain an Immigration and Naturalization Service form 

I–9, on which the employer records data from the documents presented by the new 

employee. Employees may present any of a number of documents, or combination 

of documents, to establish their identity and work authorization. It is up to the employee to decide what document or combination of legally accepted documents to 

provide to establish identity and work authorization. The I–9 form has sections that 

must be completed by employees and sections that must be completed by employers. 

The form must be retained by employers and made available to representatives of 

the INS or the OSC, if requested. 

Document abuse cases arise when an employer demands more or different documents, or rejects valid documents, when verifying an employee’s or applicant’s identity and work authorization, and the demand or refusal to accept is made with the 

intent of discriminating against the employee or applicant on the basis of citizenship 

status or national origin. 8 U.S.C. § 1324b(a)(6). If, for example, an employer demands that Hispanics present ‘‘green cards’ to the exclusion of all other documents, 

the employer is likely committing document abuse in violation of 8 U.S.C. 

§ 1324b(a)(6). 

In order to satisfy the intent standard, the OSC seeks evidence that the charging 

party was treated differently from others during the employment eligibility process 

as a result of citizenship status or national origin. This intent can be inferred 

through indirect evidence. For example, evidence that immigrants were required to 

present a specific form of identification for employment eligibility purposes, while 

persons who profess to be U.S. citizens were allowed to present any of the documents allowed by law for the same purpose, is evidence of an intent to discriminate 

on the basis of citizenship status. And evidence that Hispanics were held to higher 

standards than non-Hispanics during the employment eligibility process could be 

used to infer intent to discriminate on the basis of national origin. 

The majority of the OSC’s charge and litigation docket consists of cases and matters alleging document abuse. This results from several factors. First, document 

abuse is the area of the OSC’s broadest jurisdiction. OSC’s jurisdiction in document 

abuse cases extends over all employers in the United States with more than 4 employees. Second, all work authorized immigrants are protected against document 

abuse, in contrast to citizenship status claims, where a permanent resident’s protection ends if they fail to apply for naturalization within 6 months of becoming eligible 

to do so. Third, the employer’s behavior in a case alleging document abuse is overt 

and easily understood by the average person. In document abuse cases the employer 

usually engages in a single obvious act: either the rejection of valid work authorization documents or the request for more or specified documents. Most of the information a charging party needs to make an allegation of document abuse has been openly revealed. In contrast, many citizenship status and national origin claims involve 

more subtle activity or behavior that is open to interpretation. 

11

Document abuse does not simply affect work-authorized immigrants. Indeed, one 

of the OSC’s first cases was brought on behalf of a U.S. citizen who also happened 

to be from Puerto Rico. In her case, an employer demanded that she present a 

‘‘green card’’ as part of the application process. In spite of her insistence that she 

was indeed a U.S. citizen, and the fact that she presented her Puerto Rican birth 

certificate, the employer refused to hire her. He assumed that she was an immigrant because she was Hispanic. 

IV. AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT OF 1998

In addition to enforcing Section 1324b, the OSC has been charged with new responsibilities under the American Competitiveness and Workforce Improvement Act 

of 1998 (‘‘ACWIA’’). ACWIA establishes additional protections for U.S. workers 

under the labor condition application process. Employers use the labor condition 

process to bring temporary foreign professionals into the United States on non-immigrant H–1B visas. ACWIA creates a new ‘‘failure to select’’ cause of action. This 

new action allows an aggrieved party to file a complaint against a covered employer 

when that employer seeks to hire an H–1B visa holder over an equally or better 

qualified U.S. worker. 

On November 20, 2000, the Attorney General delegated to the OSC the authority 

to receive and review complaints filed under ACWIA, and initiate arbitration of 

those complaints before the Federal Mediation and Conciliation Service (FMCS). 

OCAHO was authorized to review decisions of the arbitrators and award relief. We 

are in the process of creating an outreach plan to educate covered employers on 

their responsibilities under ACWIA. 

V. OUTREACH AND INTERVENTION

The OSC has always maintained a vigorous outreach program. In the past year, 

and particularly in the past several months, we have improved upon that program 

in four ways. 

First, we have implemented a plan to create a more balanced outreach program. 

In the past, the OSC’s outreach has been primarily directed towards the employee 

community. However, the statute imposing the outreach requirements call for an 

outreach program that increases the knowledge of both employers and employees. 

In order to meet that requirement, I have met with representatives of employer 

groups and sought their advice on how to better communicate with employers. We 

plan to meet with state and local chambers of commerce, and other types of employer organizations. 

Second, we have tailored our employee outreach to better reach under-served portions of the worker community by using ethnic media outlets more efficiently. Specifically, OSC attorneys and staff will participate in foreign language radio programs. Recently, OSC staff appeared on Haitian (Creole language) radio programs 

in New York City and Florida. Large numbers of Haitian immigrants depend on 

these types of programs for their news and entertainment. 

Third, we have renewed our efforts to work cooperatively with state and local governments. Since my arrival in November, we have met with representatives of two 

major cities with large immigrant populations. We are negotiating agreements with 

these cities to engage in cooperative efforts to educate the employee and employer 

communities on their rights and responsibilities under Section 1324b. 

Finally, the events of September 11th created new program challenges for the 

OSC. While it is clear that we all need to be more vigilant, we must also be careful 

not to assume that immigration status is the sole predictor of whether or not an 

individual poses a threat. As the President has pointed out so often, America’s quarrel is with terrorists, not with persons who wish to contribute peacefully to American society. The OSC was one of the first components within the Civil Rights Division to distribute information to employers and workers regarding concerns of discrimination following the World Trade Center and Pentagon attacks. This information was distributed to employer associations, immigrant associations, and has been 

posted on the OSC’s website. 

In addition to conducting outreach and prosecuting charges of discrimination, the 

OSC has facilitated a number of favorable pre-charge interventions. In these matters, OSC staff worked actively with both the employer and the aggrieved individual 

to resolve the dispute without formal government intervention. A typical example 

took place on February 6, 2002. A human resources manager at a Minneapolis-based 

company contacted the OSC with questions about the employment of a refugee from 

Somalia. At hiring, the refugee had presented photo identification, an unrestricted 

Social Security card, and a valid INS-issued work authorization document. The company had suspended the refugee believing that he had to present a new INS-issued 

12

work authorization document to replace his original, and now expired, document. 

The OSC attorney who took the call explained to the company representative that 

asylees are authorized to work indefinitely incident to their asylee status, and that 

an unrestricted Social Security card was valid evidence of employment eligibility. 

The employer agreed to reinstate the refugee. 

In the course of discussing the refugee’s case, the human resources manager indicated that it was the company’s practice to reverify the work-authorization status 

of every non-U.S. citizen who presented an INS-issued document, upon that documents’ expiration. The OSC attorney advised that reverification of all non-U.S. citizens could result in the unnecessary reverification of immigrants who have indefinite work authorization incident to their status, such as lawful permanent residents, 

refugees and asylees. The human resources manager agreed to modify his practices 

accordingly. 

VI. CONCLUSION

In closing I note that the OSC has important statutory responsibilities. We take 

our charge seriously to enforce these statutory responsibilities. All of the men and 

women of the OSC are proud of the role they play in ensuring that out nation’s civil 

rights laws are fairly enforced. I thank you for the opportunity to present this testimony. I would be happy to answer any questions that you may have.

Mr. GEKAS. Thank you, and we turn to Mr. Greene. 

STATEMENT OF JOSEPH R. GREENE, ACTING DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER FOR FIELD OPERATIONS, 

IMMIGRATION AND NATURALIZATION SERVICE 

Mr. GREENE. Thank you, Mr. Chairman, and good morning. I appreciate the opportunity to be here today, and I thank you and the 

Members for the chance to discuss the INS’s Work Site Enforcement Area. I have five quick points to make. 

The first, as you know, is that since the IRCA legislation was 

passed in 1996 [sic], the INS has endeavored to determine the best 

way to use this important tool as one of a number to deter illegal 

migration into this country, and the long history of that endeavor 

is well known to this Committee. 

During the last decade, there has been almost universal recognition for the need for a new and comprehensive strategic approach 

to INS law enforcement across the board, and this strategic effort, 

as you know, began in 1994 with the Border Control Strategy and 

was complemented in 1999 by the INS Interior Enforcement Strategy. 

That Interior strategy, as you recall, was designed to identify 

and prioritize the harms to the United States associated with illegal migration and to address them systematically, recognizing the 

dilemmas posed by the expanding missions of the INS and its limited personnel. 

Of the five strategic objectives identified in that strategy—criminal aliens, local law enforcement support, worksite enforcement, 

human smuggling and trafficking and immigration fraud—many 

recognized at the time that the worksite enforcement area posed 

the greatest challenge. 

After the Interior Enforcement Strategy was established, the INS 

issued a policy with respect to Worksite Enforcement, including 

policy statements and revisions to the existing Worksite Enforcement field manual. These remain the general policy guidelines 

within which the Service operates today. 

For the roughly 2-year period thereafter, INS concentrated its 

personnel and its resources on cases involving criminal violations 

13

or widespread egregious industrywide civil violations. These efforts 

especially focused on cases where a nexus with human smuggling 

or human trafficking had been established or where there was evidence that worker exploitation has occurred. 

You have seen the results of these in several major cases that 

have been reported by the media and discussed in testimony before 

this Committee in the past. The methodologies provided by the Employer Sanctions law were critical elements to our success in these 

instances, but we believed, and still believe, that criminal convictions and their accompanying sentences have proven to be a far 

greater deterrent. 

Since the terrorist attack against the United States, this tool has 

assumed a far greater and critical importance in our war against 

terrorism. As you know, shortly after September 11th, INS directed 

its field offices to begin investigations initially at four and then at 

all major airports in the United States to ensure that jobs which 

involved access to secure areas of the airport were filled only by 

persons legally authorized to work under United States law. 

The sheer scope of this effort is daunting. There are, between the 

airports of San Francisco and Los Angeles, 65,000 employees who 

have such access. To date, our investigations have involved over 

800 employer locations and more than 200,000 employees. We have 

worked with a variety of other law enforcement agencies, including 

the FBI and the Office of the Inspector General, for the Departments of Transportation and Labor in this effort. Thus far, more 

than 100 individuals have been arrested and charged with a variety of crimes, including immigration violations. 

I am pleased to report that the vast majority of employers have 

been found to be in substantial compliance with their employment 

eligibility verification obligations. Nevertheless, this is a crucial 

area of vulnerability that the INS and its other law enforcement 

partners in the Federal Government are continuing to address. 

In closing, just let me say that while the INS recognizes that it 

has no authority to enforce the provisions of the act covering unfair 

immigration-related employment practices, we do have a role to 

play in employer education, and we do take those responsibilities 

seriously. 

The 1999 policy guidance devoted a significant section to this 

topic, and it has remained a part of the Employer Sanctions Training Program currently being provided to special agents in the INS. 

To date, up till the attacks on the United States, we had trained 

400 agents in that regard. In addition, the documents that we provide to employers as part of our law enforcement efforts are the 

materials that are provided to us by the OSC. In fact, the policy 

guidance that was formulated in 1999 was based, in part, on recommendations that the Office of the Special Counsel passed to us 

and coordinated with them prior to release. 

Again, Mr. Chairman, I thank you for the opportunity to testify, 

and I stand ready to answer your questions. 

[The prepared statement of Mr. Greene follows:]

PREPARED STATEMENT OF JOSEPH R. GREENE

Mr. Chairman, and Members of the Subcommittee, I am pleased to have the opportunity to talk to you today about the Immigration and Naturalization Service’s 

(INS) role in enforcement of our immigration laws. 

14

The INS is continuing its strategy to gain increasing control of the border, deter 

and disrupt illegal employment, combat smuggling and other alien-related crime, 

and remove greater numbers of criminal and other deportable and inadmissible 

aliens. Additionally, the INS has undertaken an initiative to identify, locate, and remove persons who have been ordered removed, but have subsequently failed to appear for removal or depart as ordered. 

Our Interior Enforcement Strategy is a complement to a border control strategy 

put in place in 1994. The underlying principles and goals of this strategy are designed to respond to the changing migration environment in the United States in 

all its complexity. It includes the following strategic priorities.

• Identify and remove alien criminals and terrorists

• Deter and diminish smuggling and trafficking of aliens

• Respond to community reports and complaints about illegal immigration and 

build partnerships to solve local problems

• Minimize immigration benefit fraud and other document abuse

• Deter and limit employment opportunities for aliens not authorized to work

The tragic events of September 11th are a sharp reminder of how important effective immigration control and enforcement is to protecting our national security and 

the health and safety of our citizens. The complexity and challenges of our mission 

have never been more stark. 

You have asked that my testimony focus on what the INS refers to as worksite 

enforcement. Our worksite enforcement activity is one facet of our enforcement 

strategy. As you know, the Immigration and Nationality Act was revised in 1986 

to establish employment controls that restrict the availability of work for illegal 

aliens. The goal, of course, was to deter illegal immigration by removing the employment opportunity magnet. 

In this regard, the hiring practices of employers is critical as an effective and 

credible deterrent to illegal immigration. Most employers know that a legal workforce is a stable workforce and do not have individuals who are not authorized to 

work in the United States. Nevertheless, we are aware that some employers, in 

order to secure an imagined short-term economic gain, will hire unauthorized workers, exploit and even abuse them, with utter disregard for their human dignity and 

civil rights. 

By working with employers to improve their process for verifying that individuals 

who have been selected for employment are authorized to work in the United States, 

the INS assists employers to develop a stable and legal work force and minimize 

the disruptive effects of large-scale arrests and investigations. At the same time, the 

INS works with employers and other federal agencies, including the Office of Special 

Counsel (OSC), to ensure that hiring practices do not discriminate against authorized workers, or otherwise violate civil rights laws. This collaboration with OSC was 

particularly important when we were developing the employment verification pilot 

projects and developing the evaluation designs. 

Our strategy emphasizes cooperation with responsible employers and prosecution 

of unscrupulous employers. This does not reduce our commitment to removing unauthorized workers when necessary, but rather enables us to focus on and aggressively 

prosecute employers who engage in illegal activity to sustain an undocumented and 

exploitable labor pool. Fines and jail time for employers who engage in illegal activity send a clear message to all that these behaviors are not acceptable employment 

practices. The vast majority of employers comply with the law and are good citizens 

that meaningfully contribute to the community. The few who do not act responsibly 

endanger individual workers and their communities. 

Under this strategy, we specifically target employers who are abusive to their 

workers and violate other federal and state laws, regardless of industry or geography. The nexus between smuggling activity and employment is direct. Likewise, 

the demand for fraudulent documents extends the connection between smuggling 

and employment. Without documents indicating work authorization, the smuggled 

alien cannot find work under our current statutory scheme. 

The INS has been able to achieve considerable success using this approach. For 

example, two men were recently convicted in Norfolk, Virginia in a scheme that involved the organized smuggling of Eastern Europeans to work as janitors in several 

retailers and supermarkets. 

Five restaurant managers in the Denver area were recently indicted for harboring 

dozens of illegal alien employees. The scheme appears to involve sophisticated 

smuggling from China and the use of employment agency referrals from other parts 

of the country. 

15

A former manager of an Iowa egg-processing plant has pleaded guilty to harboring 

illegal immigrants. Additional charges are pending in related cases. Local prosecutors and the Equal Employment Opportunity Commission are also investigating allegations of discrimination and sexual assault against illegal alien workers. 

The INS has 2,246 special agents authorized. An additional 100 positions were authorized for Joint Terrorism Task Forces in the FY 2002 Counter-terrorism Supplemental. Recently, given the large-scale effort to support the PENTTBOMB and national security-related investigations, there has been a decline in other investigations’ activity. However, Service-wide there has been a 21 percent increase in employer case completions as a result of an emphasis on worksite enforcement targeting national interest industries. 

Specifically, since the terrorist attack of September 11, INS headquarters has directed its field offices to initiate worksite investigations into the hiring practices of 

companies employing individuals who work at airports and who have direct access 

to commercial aircraft and other secure areas to ensure that these individuals are 

authorized to work and that employers are complying with the employment eligibility verification requirements. Particular attention is devoted to companies that 

provide security at major airports throughout the United States. The operations 

have included prosecution of individuals who violated criminal immigration statutes, 

removal of unauthorized aliens from airport worksites, and provision of fraudulent 

document training to security officials responsible for granting access badges to secure areas. 

The primary objective of this initiative is to ensure that travelers and the American people have confidence in their safety and security while traveling. Accordingly, 

the first group examined under the initiative comprised employers and employees 

who perform security screening and those having direct or indirect access to aircraft, 

ramp and baggage handling or any other areas that would make the facility vulnerable to compromise. The second group involved employers and employees who have 

access to boarding areas such as vendors and building services personnel. 

The effort has been undertaken in cooperation with a variety of Federal agencies 

as well as airport authority management officials. Participating Federal agencies 

have included the Federal Bureau of Investigation, and Offices of the Inspector General for the Departments of Labor and Transportation. 

The importance of this cooperative effort cannot be over-emphasized. Each agency 

has its own enforcement and oversight responsibilities and it is extremely important 

that our efforts be closely coordinated to limit disruption and duplication of effort. 

We are pleased to report that this cooperative effort has worked well. 

This is a huge undertaking. For example, the Los Angeles and San Francisco airports alone account for more than 150 employers and more than 65,000 employees. 

The INS effort to date has involved more than 800 employers with more than 

200,000 employees. More than 250 cases have been completed. Many investigations 

are still ongoing and more are expected to begin over the next several months. The 

inquiries have involved employers from a wide range of industries. 

The common denominator is that they employ persons at or near aviation terminals and at least some of these employees have access to secure areas. The employers have included airlines, security firms, food service providers, maintenance/cleaning companies, construction, messenger services, flight services and airport vendors. 

Special attention is being given to ensuring that airport personnel overseeing secure 

area badge issuance are trained in how to identify unauthorized and undocumented 

workers. 

The vast majority of employers have been found to be in substantial compliance 

with their obligations related to employment eligibility verification. We do however 

expect that some culpable employers will ultimately be fined for hiring individuals 

not authorized to work in the United States, and the unlawful hiring practices and 

employment will terminate as a result of the sanctions. 

Locations to date have involved most major airports as well as regional and local 

airports including, but not limited to, Atlanta Hartsfield, BWI, Boston Logan, Dulles, Newark, Detroit, Denver, San Francisco, Oakland, San Diego, Los Angeles, 

Phoenix, Salt Lake City and Dallas-Fort Worth. 

Given the number of employers and employees involved, comparatively few arrests of unauthorized aliens have taken place at work sites. There have been a number of arrests for individuals employed at airports that made false statements related to employment and/or acquiring identification documents. Where appropriate, 

these cases are being referred to and prosecuted by the local United States Attorneys office. 

More than 100 persons have been arrested for a variety of offenses as a result 

of our worksite enforcement initiative. Some of them have been illegal aliens; others 

16

have been charged with offenses related to false statements on applications or 

fraudulent use of identification documents, social security cards or numbers. 

I wish to be clear that none of these arrests has indicated terrorist activity. This 

enforcement initiative itself, however, is an important preventive step designed to 

eliminate vulnerabilities in our national transportation system. Similar reviews involving other infrastructure industries will be undertaken as well. 

The challenges we face are daunting. But we must stand firm against illegal immigration and smugglers who exploit and profit from human hopes and dreams. 

Thank you for the opportunity to present this testimony. I?d be happy to answer 

questions.

Mr. GEKAS. Thank you. 

We turn to Mr. Kuczynski. 

STATEMENT OF OTTO KUCZYNSKI, PRESIDENT, FAIRFIELD 

TEXTILES CORPORATION 

Mr. KUCZYNSKI. I wish to thank the Members of the Subcommittee for inviting me to testify at today’s hearing. I am the 

owner of Fairfield Textiles Corporation, which is a company engaged in the knitting, dying and finishing of fabric. Prior to the 

downturn in the American textiles industry, my company operated 

on a 24-hour basis, 7 days per week, and employed as many as 400 

people at one time. 

The large majority of our workforce has always consisted of immigrants. I, too, am an immigrant to this country, and as such I 

have always made clear to those who work for me that my company does not and will not discriminate against immigrants. Having said that, I would like to tell you about an experience that I 

had. 

In 1991, the Immigration and Naturalization Service conducted 

what can only be described as a raid upon the facilities in which 

my companies operate. This was, to my knowledge, a random raid. 

In that raid, the INS literally surrounded our two plants and took 

into custody employees who appeared, by their physical characteristics, to be immigrants to this country. Each of them was asked 

to verify his identity and legal residency status. 

A number of employees questioned were ultimately determined 

to be illegal aliens. However, since my company was in possession 

of the appropriate and necessary documentation on those employees, not one summons, not one notice of violation was issued by the 

INS to my company. 

However, the incident occurred at the height of our company’s 

busy season. As such, it caused a serious interference with my company’s ability to meet its contractual requirements. With no prior 

notice, we lost a portion of our workforce, which we simply were 

unable to promptly replace. As a result, we were unable to meet 

certain key productions and delivery deadlines, causing some of our 

longstanding clients to move their business to our competitors. 

I determined that I needed to ensure that we would do all we 

could in the future to never hire an illegal alien, even unwittingly. 

My company simply could not afford any further traumatic disruptions to its business. 

The difficulty, of course, in carrying out this policy is that so 

often illegal aliens seeking employment with us would present false 

or fraudulent documents which, in all respects, appeared valid on 

their face, but in actuality were not. 

17

In October 1998, our company received a letter from the Civil 

Rights Division of the United States Justice Department concerning a charge which that division had received from someone 

who had sought a job at our company. This individual claimed that 

we discriminated against her by not hiring her because of the fact 

that she was a citizen of the United States. It was an absurd claim, 

but nonetheless I cooperated with the Government in its informal 

request for my company to produce many hundreds of documents 

for the Government’s review. Most of these documents related not 

to this particular person, but to all others who were hired by my 

company during a particular period of time. 

Additionally, the Government asked to take depositions from certain of my employees, and I consented to that because I had nothing to hide. 

Shortly thereafter, the Government wrote my company and 

threatened suit against my company alleging that it had violated 

the law with respect to the individual who filed a charge against 

us. The Government in that letter said that if we did not want to 

be sued, we would have to agree to six terms, the most important 

of which were that we pay a civil penalty to the United States Government in the amount of $2,000 and that we pay the charging 

party back pay of $7,451. 

Because my company never intentionally discriminates against 

anyone in the hiring process and because of my own background 

as an immigration to this country, I felt morally obligated not to 

buckle under a demand by our Government, which I felt was unreasonable. I said, ‘‘No.’’ My ‘‘no’’ turned out to be very costly. 

The Government instituted suit against my company in May 

1999, and the case was not resolved until September 2001. In that 

settlement, my company paid a fine to the United States Treasury 

in the amount of $1,100 and paid the charging party $12,470. That 

is only part of the story, however, since the legal fees and related 

costs to defend these charge actually spent by my company exceeded $93,000. 

You should know that as this case developed, the demands on 

the part of the Government increased. For example, in February 

2000, a settlement demand was made by the Government in which 

it wanted my company to pay the United States Treasury $77,700 

as a penalty and to pay the charging party $16,300. At the same 

time, the Government demanded, and ultimately obtained by court 

order, copies of all payroll records covering my company’s entire 

workforce for a period of 4 years; financial statements from my 

company; income tax returns and other financial documents which, 

as far as I was concerned, were confidential and absolutely irrelevant to the issues and the lawsuit. 

I interpreted these efforts on the part of the Government to rise 

to the level of intimidation—nothing more, nothing less. My resolve 

only strengthened, and I determined not to buckle under these unreasonable demands. 

As a result of this lawsuit, I have become painfully aware of the 

law on which it was based. I must confess that the law makes no 

business sense to me. My company was sued because of something 

called ‘‘document abuse.’’ As I understand it, the law permits an 

applicant for employment to choose which document he wishes to 

18

present to us from a list of acceptable documents shown on the 

back of the I–9 form, in order to prove his identity and work eligibility. However, we, as the employer, cannot request that the applicant present more or different documents than are required; and 

we must accept a document which, on its face, appears to be genuine and relates to the person who presents it. 

Our failure to comply with this regulatory requirement can lead 

to the imposition of a fine of up to $2,000 for each violation. 

Compliance with these rigid requirements is a substantial problem for my company, as I assume it is to other American companies. Most of the applicants who seek employment at our company 

are unskilled. However, that employee must be trained to operate 

machinery ranging from state-of-the-art knitting machines to dying 

and finishing machines. Training takes time and effort which, of 

course, translates into money. If, after a person is hired and 

trained, our company learns that the documents submitted by that 

employee were, in fact, fraudulent, we must immediately terminate 

that person and start the process again. 

As I understand it, we are not permitted to verify the validity of 

the documents presented by an applicant for employment until 

after we hire that person. Only after we hire and begin the costly 

process of training can we call the Social Security Administration 

to see if the Social Security card presented is valid and contact the 

INS to see if the INS-issued document presented is valid. 

The process simply does not appear to make business sense. 

What does appear to make business sense, however, is to allow an 

employer to determine the employment eligibility status of a prospective employee before an employee is hired. However, to do so 

violates the law. 

My company was sued, in essence, because my supervisory employees, in an effort not to violate the requirements of the law and 

mindful of the raid by the INS in 1991, consistently used the employment application process to obtain as many documents as possible, rather than as few documents as permissible, to prove employment eligibility. 

I now know, however, that such conduct violates the law as written. We are caught on the horns of a dilemma. If we comply rigidly 

with the law, we may be hiring an illegal alien. If I violate the law, 

the Government can sue me. 

I want you to know that compliance with the law is not as simple 

as the Government would have you believe. The Government has 

issued a handbook for employers, which is intended to instruct employers on the completion of the Form I–9. All the Members of this 

Committee have to do is read that document, as do my supervisor 

personnel and become as confused as I am afraid my supervisory 

personnel became. Those personnel are working people who have 

gained the skill sufficient to allow them to work as supervisors. 

They are not college-educated individuals. While I do not intend to 

demean their abilities, I know from experience that they do have 

a difficult time in understanding some of the directions in the booklet. Mistakes can occur, which may prevent the hiring of illegal immigrants based upon the mistaken belief by the supervisory personnel that the document submitted is insufficient. Mistakes can 

19

also occur which may cause my company to unwittingly violate the 

law and expose itself to penalties and other costs. 

At the time we settled our lawsuit with the Justice Department, 

one of the terms of the settlement was that I was required to have 

my supervisory personnel view an educational videotape prepared 

by the Office of Special Counsel. I was told that that videotape 

would assist my hiring personnel to understand the obligations 

with respect to hiring legal immigrants. I, personally, have viewed 

the tape, and confess that after viewing it, I became more thoroughly confused than ever before as to what my hiring personnel 

have to do. 

I heartily recommend that this Committee obtain copies of the 

videotape to get a firsthand understanding of the complexities involved. My purpose in testifying before you this morning is not to 

bash our Government or its efforts to prevent discrimination; it is, 

however, to alert you to the fact that honest and patriotic American 

employers often find themselves in a ‘‘Catch-22’’ situation: either 

comply with the law and possibly hire illegal aliens; or don’t comply with the law and ensure that that individual you hire is permitted to work, but become exposed to substantial fines as a result. 

I am pleased that this Committee is reviewing this problem, and 

I will answer any questions that you may have of me. 

[The prepared statement of Mr. Kuczynski follows:]

PREPARED STATEMENT OF OTTO KUCZYNSKI

Dear Congresman Sensenbrenner: 

Thank you very much for inviting me to testify at the hearing on ‘‘The INS and 

Office of Special Counsel for Immigration-Related Unfair Employment Practices’ before the Subcommittee on Immigration and Claims. I firmly believe that my testimony will provide a working example of the difficulties which American employers 

encounter in their efforts to comply with the rigid requirements imposed upon them 

for the hiring of legal immigrants. I will also provide a glimpse into the difficulties 

with which my Companies were faced as a result of long and arduous litigation instituted by the Office of Special Counsel against my Companies as a result of perceived violations of the Immigration Reform and Control Act of 1986. 

Fairfield Textiles Corporation, as well as a related company, Fairfield Jersey, Inc. 

(both owned principally by me) are engaged in the knitting and dyeing of fabric. 

Fairfield Textiles Corporation, has been in existence since 1976; and Fairfield Jersey, Inc. has been in existence since 1984. 

The American textiles industry is presently suffering a severe economic downturn, 

caused by various factors including, but not being limited to, difficulties in competing with offshore competitors. Prior to the commencement of this downturn, and 

as late as 1995, my Companies operated on a 24-hour basis, 7 days per week, and 

employed as many as 400 people at one time. The large majority of my work force 

has always consisted of immigrants. The supervisory personnel working for my 

Companies, whose job duties include the hiring of new employees, have always been 

directed to hire only individuals who are authorized to work in the United States. 

This policy became even more important to me as a result of the following: 

In or about 1991, the United States Immigration and Naturalization Service (INS) 

conducted what can only be described as a ‘‘raid’’ upon the facilities operated by 

Fairfield Textiles Corporation in Fairfield, New Jersey and Paterson, New Jersey. 

I have no reason to believe that this was anything but a random raid. In that raid, 

the INS literally surrounded the plants; entered the plants, and took into custody 

employees who appeared by physical characteristics to have been born outside of the 

United States. Each of those individuals was asked to verify his or her identity and 

legal residency status. At the same time, employment records maintained by Fairfield Textiles Corporation on each of the questioned employees were reviewed by the 

INS representatives. 

While a number of the employees questioned were determined ultimately to be illegal aliens, the documentation which each of those illegal aliens had earlier presented to Fairfield Textiles Corporation appeared reasonably valid upon their face; 

20

and for that reason, not one summons—not one notice of violation—was issued by 

the INS to Fairfield Textiles Corporation. 

However, the raid occurred at the height of Fairfield Textiles Corporation’s busy 

season. As such, it caused a precipitous and serious interference with my Company’s 

ability to meet its contractual requirements for its customers. I immediately contacted my attorney, Dennis J. Smith, Esq., and asked him to intercede on my Company’s behalf and to inquire why my Company was the subject of a raid. Mr. Smith 

advised that his inquiries on our behalf were met with nothing short of insults. For 

example, when Mr. Smith identified himself in a telephone conversation with the 

INS as the attorney for Fairfield Textiles Corporation, and asked as to the basis of 

the actions of the INS in conducting the raid, Mr. Smith was told simply that since 

he was an attorney, it was up to him to find out the answers himself. 

Because of the traumatic impact caused by the INS raid upon my Companies 

(both in terms of their ability to meet their contractual obligations, as well as their 

inability to replace, on a moment’s notice, the portion of their work force who were 

determined by the INS to be illegal aliens and who never return to work), I needed 

to ensure that we would do all that we could in the future to ensure that we never 

hired, even unwittingly, an illegal alien. My Companies simply could not afford any 

further disruption to their business. 

Accordingly, I issued a verbal directive to my Plant Supervisor and to the other 

supervisory personnel whose job duties included the hiring of new employees. This 

directive required them to redouble their efforts at the hiring stage to ensure that 

my Companies did not, even unwittingly, hire illegal aliens. My intent in issuing 

this directive was to ensure that my Companies would never again suffer the traumatic impact of a loss of a portion of its work force as a result of unwitting violations of the law pertaining to the hiring of illegal aliens. 

In October 1998, my Companies received a letter from the Civil Rights Division 

of the United States Justice Department. In that letter, my Companies were advised 

that the Civil Rights Division of the Justice Department had received a charge by 

an individual who alleged that she was discriminated against by Fairfield Jersey, 

Inc. and that she was ‘‘not hired based on her citizenship status, while the Company 

prefers to hire undocumented workers’. The Government asked my Company to respond informally, indicating that if my Company refused to do so, subpoenas would 

follow. Accordingly, I directed the appropriate individuals at my Company to engage 

in an informal production of documents to the United States Government. These 

documents included a letter response to the charge; a copy of the partially completed 

employment application of the Complainant with related documents; and, as per the 

request of the Justice Department, copies of all employment eligibility verification 

forms (Forms I–9) collected and/or re-verified by the Company since January 1, 

1998, together with copies of supporting documentation in which instances such 

photocopies were made. (January 1, 1998 was approximately 10 months prior to the 

date of the letter from the Justice Department.) 

I asked my attorney to seek the right to interview the Complainant. I was advised 

by my attorney that his request was denied, since he was told that, at that stage 

of the investigation, a personal interview of the Complainant would not be granted. 

After the informal discovery of documents by the Justice Department was completed, the Government asked to take the deposition of two employees at Fairfield 

Textiles Corporation. My attorney was advised that if this deposition was not agreed 

to, a formal complaint would be filed by the United States Government, pursuant 

to which these depositions would occur anyway. Therefore, I advised our attorney 

to permit the depositions on a consensual basis. I frankly was proud of the efforts 

which my Company was making to ensure that it did not hire illegal aliens; and 

therefore had nothing to fear from having my employees give depositions. The depositions took place on February of 1999. 

Subsequently, in late March 1999, the Justice Department, in a letter to my attorney, advised that there was ‘‘reasonable cause to believe that Fairfield Jersey Company has violated [applicable Federal law] by engaging in an unfair immigrationrelated employment practice.’’ The letter stated that, ’specifically, this office has determined that Fairfield Jersey engaged in document abuse by rejecting the employment eligibility verification purposes the charging party’s unrestricted Social Security card which reasonably appeared to be genuine on its face.’’ The letter went on 

to say that the Justice Department ‘‘may file suit against Fairfield Jersey on [the 

charging party’s behalf]; but solicited the cooperation of our Company to enter into 

‘‘corrective action’’ without contested litigation. Accordingly, the Government demanded that our Company agree to the following terms:

1. That it would agree that henceforth its hiring practices shall not discriminate based upon citizenship status or constitute document abuse.

21

2. That it pay a civil penalty of $2,000.00.

3. That it agree to hire the charging party.

4. That it would pay back pay to the charging party in the amount of $7,451.00.

5. That it would send a notice and educate each of its hiring and recruitment 

personnel about the applicable law.

6. That it would post a notice concerning these facts in all of its personnel offices and distribute the notice to all employment applicants for a period of 

one year.

In response, I directed our attorney to advise the Justice Department that:

1. Our Company will agree that its hiring policies and practices shall be maintained in accordance with the law.

2. It will agree to educate its hiring personnel about the law.

3. It will post a copy of any written notice which it will provide to its hiring 

personnel about the law.

4. However, it would not admit any violation of the law.

I would like the Committee to note that my position with respect to the demand 

by the Justice Department was based upon several factors, the most important of 

which were:

1. My certainty that my Company never intentionally discriminated against 

anyone in the hiring process. Any fair-minded person who visited by Companies’ plants would be struck by the large number of immigrant employees on 

our work force.

2. I was born in Europe and spent my childhood in Germany during World War 

II, my family having fled from the Russians into Germany. As such, I am 

personally and fully aware of the horrors of discrimination; and have ensured 

that my Companies have conducted themselves in such a manner as to ensure fair treatment to everyone, free of any discrimination. Based upon these 

principles, I felt that the Government was acting inappropriately. I felt morally obligated to stand up to the Government in this instance.

As an obvious result of my position, in May 1999, the Office of Special Counsel 

of the Civil Rights Division of the United States Department of Justice filed a complaint against Fairfield Textiles Corporation and Fairfield Jersey, Inc. with the Office of the Chief Administrative Hearing Officer, United States Department of Justice, Executive Office for Immigration Review. That complaint alleged that my Companies discriminated against the ‘‘charging party’’ based upon her perceived citizenship status, and committed ‘‘documentation abuses’ against the charging party. The 

complaint also alleged that my Companies engaged in a ‘‘pattern or practice of citizenship status discrimination and document abuse against job applicants they perceived to be aliens.’’ Specifically, the complaint alleged that my Companies improperly verified the Social Security Numbers of job applicants whom they perceived to 

be non-U.S. citizens. 

As a result of this complaint, a long and arduous lawsuit followed. That lawsuit 

taxed not only the financial strength of my Companies; but attacked my personal 

pride in being an American citizen. That lawsuit continued until September 2001, 

when it was ultimately settled. Under the terms of the settlement, my Companies 

agreed to do everything they agreed to do at the time of the initial demand by the 

Justice Department in 1999; but, in addition, they agreed to pay the charging party 

the sum of $12,470.40 and to pay a civil penalty to the United States Treasury in 

the amount of $1,100.00. 

Those sums of money are only part of the story. My pride in being an American, 

and my refusal to buckle under the demands of the Justice Department in this lawsuit cost my Companies approximately $93,776.97 in legal fees and related costs. 

As the lawsuit developed, and as the charges of the Justice Department became 

more apparent, it became clear that the remedies which the Government was seeking went far beyond the charging party’s initial complaint. For example, the complaint sought an Order which would require my Company to ‘‘instate and make 

whole each and every other work authorized individual who may have been denied 

employment as a result of [my Companies’] illegal actions, including all back pay 

and retroactive employee benefits and seniority loss as a result of [my Companies’] 

illegal actions, including interest.’’

In the litigation, discovery demands were made by the United States Government, 

which demands showed clearly that the Government intended to proceed far beyond 

the actual charge; and to engage in what can only be called a fishing expedition 

22

through my Companies’ records; in an attempt to try to find some violation by my 

Companies which would render them subject to punishment. For example, one of 

the document demands required the production of ‘‘all documents relating or referring to Respondent’s policies and/or procedures since November 30, 1994 completion 

of INS Form I–9.’’ Another required blank copies of all documents disseminated or 

required to be completed by employment applicants from August 1, 1996 to the 

present. Another demand required a copy of our Company’s most recent balance 

sheets, income statements, annual report to shareholders, and Federal Corporate Income Tax Returns—information which had nothing to do with the charges claimed. 

As the case developed, the Government continued to raise its stakes. In fact, as 

of February 2000, the Government advised our Companies that, in order for the 

Government to dismiss its complaint, our Companies would have to pay the United 

States Treasury $77,700.00, and would have to pay the charging party $16,291.00. 

The penalty portion of this demand was based upon the Government’s assertion that 

my Companies had committed document abuse in 111 instances; that the statutory 

fine permitted for each such violation was $1,100.00; but that, as a measure of ‘‘com- promise’’ the Government would demand only $700.00 per violation. 

At the same time that this demand was received, the Government issued subpoenas to seven current and former employees of my Companies, requiring their 

depositions. The Government further advised that it was intending to demand copies of all payroll records for my Companies’ entire work force for a four-year period, 

so as to permit it to cross-check the I–9 forms which we had submitted to the Government with the Companies’ entire payroll records. In addition, the Government 

advised our Companies that, from the review of the documents which we had given 

to the Government in response to its demands, the Government had determined 

that 65 workers who had either been hired, or who had applied for jobs and not 

been hired, had not been identified on I–9 forms which my Companies delivered to 

the Government. The Government in asserting its failure to obtain I–9 forms was 

a violation of law, threatened that if the matter were not settled, the Government 

intended to search for each of the 65 individuals, interrogate them, and determine 

what documents, if any, they gave to the Companies. Presumably, if the number 

and type of these documents violated the law, my Companies would be exposed to 

further fines. 

I interpret these efforts on the part of the Government as intimidation—nothing 

more and nothing less. My resolve only strengthened and I determined not to buckle 

under these unreasonable demands. 

The litigation continued in this vein, until it became apparent to the Government, 

that the economic downturn in the textiles industry, as well as the onset of a recession, rendered my Companies less attractive as a source of substantial fines. Only 

when that fact was understood by the Government, did this matter settle under the 

terms as described above. 

As a result of the litigation, I have become painfully aware of the law on which 

litigation was based. My attorney has explained it to me over and over again, but, 

I must confess it makes no rational sense to me. It is my understanding that my 

Companies were sued, and forced to pay a penalty, as a result of something called 

‘‘document abuse’’. As I understand it, the law permits a prospective employee to 

choose which document he or she wishes to present to a prospective employer from 

a list of acceptable documents shown on the back of the Form I–9. An employer is 

not permitted to request that a particular employee/applicant present more or different documents than are required. Further, the employer is not permitted to 

refuse to honor documents which, on their face, ‘‘reasonably appear to be genuine’’

and to relate to the person who presented them. 

I have carefully reviewed the provisions of the Form I–9. As this Committee is 

clearly aware, the back of the I–9 Form has three columns: ‘‘List A’’; ‘‘List B’’; and 

‘‘List C’’. List A identifies documents that establish both identify and employment 

eligibility. If a prospective employee presents one document from List A, it is my 

understanding that it is unlawful for the employer to then ask for any further documents. Any such request is a violation of Federal law, and is defined as discrimination under the law. It can lead to the imposition of a fine of up to $2,000.00 for 

each such violation. 

Compliance with these rigid requirements presents substantial problems to my 

Companies—and presumably to other American companies. In my business, most of 

the applicants who seek employment are unskilled. However, the operations of my 

plant involve the use of machinery ranging from state-of-the-art knitting machines 

to boilers to dyeing machines. As can be anticipated, each person who is hired by 

my Companies has to be trained for his/her position. Training takes time and effort—which, of course, translates into money. If after a person is hired, our Companies learn that that person is an illegal alien, or that the documents submitted by 

23

that person to prove employment eligibility are in fact fraudulent, my Companies 

must immediately terminate that person or stand the risk of violating Federal law. 

It would make perfect sense, therefore, for an employer to be able to determine 

with as much finality as possible, the employment eligibility status of a prospective 

employee before an employee is hired. However, as I understand the process, that 

is not permitted. 

What conduct caused my Companies to run afoul of the law? In a nutshell, it was 

the following: 

My supervisory employees, in an effort not to run afoul of INS’’ requirements—

and mindful of the INS ‘‘raid’’ in 1991 upon our Companies, consistently use the employment application process to obtain as many documents as possible, rather than 

as few documents as permissible to prove employment eligibility. 

I will give you an example: 

If a prospective employee produced an alien registration card which, on its face, 

appeared valid, then, according to Federal law, the supervisor interviewing that prospective employee can ask for no further documents. However, the sad truth is that 

it is quite possible for someone to purchase another person’s fraudulent documents. 

As a result, the supervisor interviewing a prospective employee who tendered, for 

example, an alien registration card during the I–9 process, would routinely ask for 

some other form of identification, such as a driver’s license containing a photograph; 

or a Social Security card. Once that supervisor saw such documents which 

crosschecked with each other, he would feel reasonably satisfied that the person before him was indeed the person referred to on the documents; and the hiring would 

be permitted to occur. 

That conduct, however, is evidently a violation of the law. This is because an alien 

registration card is on ‘‘List A’’ of the list of acceptable documents for I–9 purposes; 

and the driver’s license with a photograph is on ‘‘List B’’. A Social Security card is 

on ‘‘List C’’. Once a ‘‘List A’’ document is provided, the mere request by the employer 

for either a ‘‘List B’’ document or a ‘‘List C’’ document results in a violation of the 

law. 

Another example: 

For an employee under the age of 18, a report card from his school is a ‘‘List B’’

document. If such a proposed employee submitted a report card as well as a Social 

Security card, my supervisory employees are suppose to accept those documents as 

proof of employment eligibility. However, it is routinely known that documents such 

as Social Security cards can be bought and sold on the street. There is no real basis 

on which my supervisory personnel can be satisfied that what appears to be a valid 

Social Security card indeed is valid. The Social Security Administration does maintain a telephone number which allows employers to inquire, by telephone, as to 

whether a Social Security card presented to the employer by an employee is valid. 

However, it is my understanding that such inquiry cannot be made to the Social 

Security Administration unless and until the prospective employee is actually hired. 

Only after that hiring occurs—with the result that my Company is already spending 

time, effort and money in training that employee—can an inquiry to the Social Security Administration be validly made. Another example: 

On Section 1 of the I–9 Form, an applicant for employment may attest that he 

or she is an alien authorized to work in this country until a date certain and may 

identify himself or herself by an Alien Number or an Admission Number. That information refers to certain documents. If that person then produces, say, a school I.D. 

with a photograph (a ‘‘List B’’ document) and a U.S. Social Security card, it is my 

understanding that it is unlawful for my supervisory personnel to require the employee to present the documents referred to in Section 1. That is true even if the 

document referred to by the applicant in Section 1 is a ‘‘List A’’ document which, 

in and of itself, would prove both identity and employment eligibility. If my supervisory personnel does make a request for the production of that document, it is a 

violation of Federal law. 

The above examples given by me, are intended to show the difficulties imposed 

upon American employers in the hiring of legal immigrants. The process, however, 

of hiring legal immigrants has been made so complicated by the law that, in effect, 

it has become an impediment to hiring legal immigrants. The INS has published 

a ‘‘Handbook for Employers’’ which is instructions for the completion of Form I–9. 

That document is approximately 35 pages in length, and contains instructions on 

the employment verification process which instructions are divided into eight separate parts. The document, while intended to be simple, is not. For example: 

Page 14 of that document contains, in Question Number 15, an explanation as to 

how my supervisory personnel are suppose to be able to tell if an INS-issued document has expired. Here is the answer:

24

‘‘Some INS-issued documents, such as previous versions of the Alien Registration Receipt Card (I–151 and I–551), do not have expiration dates and are valid 

indefinitely. However, the 1989 revised version of the Alien Registration Receipt 

Card (I–551), which is rose-colored with computer readable date on the back, 

features a 2-year or 10-year expiration date. Other INS issued documents, such 

as the Temporary Resident Card (I–688) and the Employment Authorization 

Card (I–688A or I–688B) also have expiration dates. These dates can be found 

either on the face of the document or on a sticker attached to the back of the 

document.’’

My supervisory personnel are not college-educated individuals. They are working 

people who have gained a skill sufficient to allow them to work as supervisors. 

Without intending to demean their abilities, I doubt whether they would be able to 

understand some of the alternative directions quoted above. Mistakes could occur, 

which could prevent the hiring of a legal immigrant based upon the mistake and 

belief by the supervisory personnel that the document submitted is insufficient. 

Because of the problems that I have had with the litigation referred to in this 

statement, I have specifically told supervisory personnel that they are not permitted 

to ask an applicant for employment to produce documents other than those documents which the applicant voluntarily produces. However, quoting again from Page 

14 of the Handbook, the following question and answer is given:

‘‘Q. What should I do if persons present Social Security Cards marked ‘‘NOT 

VALID FOR EMPLOYMENT,’’ but state they are now authorized to work?

A. You should ask them to provide another document to establish their employment eligibility, since such Social Security Cards do not establish this.’’

It is quite understandable that, based upon the directions that I had given to my 

supervisory personnel, an otherwise legal immigrant who presents a Social Security 

card marked ‘‘not valid for employment’’ would not be hired; even though, perhaps, 

that applicant would have another ‘‘List C’’ document available for presentation. 

As a final example of how the procedures and guidelines of the INS and the Justice Department may hinder the hiring of legal immigrants, I offer the following: 

At the time my Companies settled their lawsuit with the Justice Department, one 

of the terms of the settlement was that I had to require my hiring personnel to view 

an educational videotape prepared by the Office of Special Counsel. I was told that 

the purpose of the educational videotape was to assist my hiring personnel in understanding their obligations with respect to hiring legal immigrants. When the educational videotape arrived, I personally viewed it. I will confess that after viewing 

the videotape (which lasts about 20 minutes) I was more thoroughly confused than 

ever before as to what my hiring personnel have to do. The tape itself is the best 

evidence of the difficulties with which employers are met when they attempt to meet 

the rigid legal requirements for legally hiring immigrant workers. I heartily recommend that this Committee obtain copies of this videotape, to get a first-hand understanding of the complexities involved. 

It is my fervent hope that this statement will assist the Committee in reviewing 

the practice and procedure of the Justice Department and the INS with respect to 

the hiring of legal immigrants. It is also my fervent hope that any abuses on the 

part of either the INS or the Justice Department in this statement will be the subject of scrutiny by this Committee in an effort to enact legislation to prevent such 

abuse. 

I appreciate the opportunity to have appeared before this Committee and to have 

presented this statement.

Mr. GEKAS. We thank the gentleman, and we turn to Mr. Henderson. 

STATEMENT OF WADE HENDERSON, LEADERSHIP 

CONFERENCE ON CIVIL RIGHTS 

Mr. HENDERSON. Thank you, Mr. Chairman. Good morning to 

you and the other Members of your Subcommittee. I am Wade 

Henderson, the executive director of the Leadership Conference on 

Civil Rights, and I want to thank you for the opportunity to 

present the views of the Leadership Conference regarding the operation of the Office of Special Counsel for Immigration Related Unfair Employment Practices. 

25

The Leadership Conference on Civil Rights is the Nation’s oldest 

and most diverse coalition of national organizations working on 

civil and human rights in the United States. The Leadership Conference seeks to further the goal of equality under law through legislation advocacy and public education. 

Mr. Chairman, I will summarize my statement and thank you for 

including my complete statement in the record today. 

Now let me say at the outset, Mr. Chairman, that the Leadership 

Conference strongly supports the mission and work of the Office of 

Special Counsel. It is not my intention to speak today regarding 

the merits of any individual case in which the OSC has been involved. However, it is quite obvious that some have raised concerns 

about overzealous enforcement by the Office of Special Counsel, 

and therefore I would like to address that issue, putting it in a 

broader context, both on behalf of the Leadership Conference, but 

also as an individual who worked in the advocacy community in 

support of the creation of this very important office. 

First, I would like to place my concerns that have been raised by 

the OSC’s handling of individual cases in their appropriate context; 

second, I want to explain why I believe the Office of Special Counsel continues to be important and why it, in fact, needs to be 

strengthened; and, finally, I will provide what I believe is a logical 

recommendation on how to address some of the concerns which 

have been raised here this morning by Mr. Kuczynski, for example. 

While it is true that a number of cases litigated by the Office of 

Special Counsel and the overall amounts of civil penalties and back 

pay obtained have increased in recent years, they are still quite 

limited. Last year, for example, only 44 cases were settled or favorably decided, resulting in a total of only $169,664 in back pay 

awarded to victims. There are several reasons for this result. 

First, the Office of Special Counsel is woefully underfunded, op- erating on a budget of only about $6 million a year and with a staff 

of approximately 30 employees. 

Second, the laws themselves clearly limit the jurisdiction of the 

office, meaning, that a large number of what we believe are employment-related immigration discrimination cases are legally beyond the Agency’s reach. 

Third, the enforcement activity of the Office of Special Counsel 

is really constrained both by its limited resources, but also by its 

effort to adopt new and balanced approaches to enforcement and 

public education. And Mr. Benitez, this morning in his remarks, 

described some of those approaches, including his early intervention approach and other efforts which we support because we believe they make a difference. 

Now, in addition, the Office of Special Counsel awards grants to 

nonprofit organizations, as well as business associations across the 

country and even trains other Federal agencies on how to adjust 

these issues. Clearly, we believe that what they are doing with respect to this public education effort makes a great deal of sense, 

but it does limit, we think, their ability to actually address effectively some of the cases that are brought to their attention. They 

simply don’t have the full capacity to do so. 

I say all of this to dispel any notion about whether the Office of 

Special Counsel is overzealous or overly litigious. It simply is not 

26

the case. Over the past decade, there has been virtually no growth 

in the resources of this important office. At the same time, the population of newcomers to the United States has grown substantially, 

and it is growing in new areas where employers are less likely to 

have experience in dealing with immigration-related employment 

issues. 

Add to this, of course, the circumstances, the tragic circumstances of September 11th. As we know, the attacks on the 

World Trade Center and the Pentagon have caused even greater 

distrust among some Americans, and employers in particular, 

against those who look foreign, and that distrust has spilled over 

into the workplace and intruded into the fair decision making 

about whether individuals legitimately are entitled to work in the 

United States. 

The Equal Employment Opportunity Commission, for example, 

has received 165 complaints of employment discrimination in the 

few weeks following the attacks of September, and similar findings 

have been reported by groups like the Arab—the American Arab 

Anti-Discrimination Committee or the National Asian Pacific 

American Legal Consortium. Both organizations have monitored 

this kind of activity in the past. 

Now because all of this activity from our perspective is important, we simply wanted to note that the hysteria which has been 

suggested about the role of the Office of Special Counsel is simply 

unwarranted. 

I see that my time has ended. I’m going to conclude by saying 

the following, sir: 

I think that the concerns which have been expressed by Mr. 

Kuczynski obviously reflect the dilemma that many employers feel 

they face when handling the twin pressures of, on the one hand, 

complying with Immigration Service requirements to hire effectively and on the other avoid discrimination. 

We think if employers follow the 10-point program that has been 

outlined by the Office of Special Counsel in an effort to avoid employment discrimination, they would be more effective, but we also 

see that the kind of efforts, like the raid in 1991 that Mr. 

Kuczynski referred to, has created a chilling effect on many employers, where they feel the necessity of going beyond what the law 

requires to make subjective judgments based on records available 

to them about who indeed qualifies for work in the United States 

lawfully. 

This is precisely the problem that many in the advocacy community identified with employer sanctions when it was first adopted. 

We predicted that there would be substantial increases in discrimination. That prediction has been borne out by the facts that have 

been readily available to this Subcommittee over the past decade, 

and we believe that if there is a genuine interest in trying to mitigate this problem, then take a look again at the utility of employer 

sanctions as an enforcement tool. It has not been as effective as its 

sponsors had originally hoped in deterring undocumented immigration, and yet it has precipitated more employment-related discrimination, not just involving persons who are from outside of the 

United States and authorized to work, but against American citizens as well. 

27

So we would encourage a reexamination of some of those fundamental premises, even as you’re examining the role of the Office of 

Special Counsel. 

Thank you, Mr. Chairman. I appreciate it. 

[The prepared statement of Mr. Henderson follows:]

PREPARED STATEMENT OF WADE HENDERSON

Chairman Gekas, Congresswoman Jackson Lee, and members of the Subcommittee: I am Wade Henderson, Executive Director of the Leadership Conference 

on Civil Rights (LCCR). I appreciate the opportunity to present to you the views 

of the Leadership Conference regarding the operations of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC). 

The LCCR is the nation’s oldest and most diverse coalition of civil rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, 

the Leadership Conference seeks to further the goal of equality under law through 

legislative advocacy and public education. The LCCR consists of over 180 organizations representing persons of color, women, children, organized labor, persons with 

disabilities, the elderly, gays and lesbians, and major religious groups. I am privileged to represent the civil and human rights community in submitting testimony 

for the record to the Committee. 

It is not my intention to speak regarding the merits of any individual case, discussed here or elsewhere, in which the OSC has worked to uphold the antidiscrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA). Because it is my understanding that some concerns have been raised that the OSC 

has acted overzealously in particular cases, however, I would like to address those 

concerns, not only on behalf of the civil rights community but also as a person who 

was involved in the efforts to establish the OSC and who has had the pleasure of 

working with the agency over the years since its creation. 

My intention in speaking about the OSC today is threefold. First, I would like to 

place any concerns that may be raised about the OSC’s handling of individual cases 

in their appropriate context, by providing the distinguished Members of this Subcommittee with a broader perspective on what is in fact a very small, limited agency 

working to enforce our antidiscrimination laws. Second, I will explain why I believe 

the OSC continues to be important in the efforts to fight discrimination on the basis 

of national origin and citizenship, and why the agency needs to be strengthened. Finally, I will provide my recommendation for how any concerns about how the OSC 

may function in individual cases can be best resolved in a way that fulfills, rather 

than undermines, our nation’s commitment to protect civil rights in the workplace. 

It is true that the number of cases litigated by the Office of Special Counsel for 

Immigration Related Unfair Employment Practices and the overall amounts in civil 

penalties and back pay obtained have increased in recent years. However, a closer 

look at the numbers of cases fought and won by the OSC reveals that the agency 

is still just barely scratching the surface when it comes to effectively combating immigration-related discrimination in the workplace:

As these figures show, given the size of our economy and the American workforce, 

the results of the OSC’s efforts to enforce the antidiscrimination provisions of the 

Immigration Reform and Control Act of 1986 through litigation have been very limited; in fact, many in the civil rights community including myself believe they are 

far too limited than is desirable. There are several reasons for this result. First, the 

OSC is badly underfunded, operating on a budget of only about $6 million a year 

and on a staff of approximately 30 employees. 

Second, in addition to the limited resources of the OSC, the laws themselves clearly limit the jurisdiction of the Office. A number of situations are legally beyond the 

reach of the OSC:


LCCR1.eps
28

• Noncitizens who lack employment authorization cannot maintain claims for 

document abuse.

• Employers with 3 or fewer employees are exempt from the law’s coverage.

• The law does not cover national origin discrimination situations that are already covered by Title VII.

• The law does not apply where citizenship-based discrimination is required by 

(1) law, regulation or executive order; (2) a federal, state or local contract; or 

(3) where the Attorney General determines that it is essential for an employer 

to do business with a federal, state or local government.

• The law does not prohibit citizenship-based discrimination where an employer 

chooses between a U.S. citizen and a noncitizen that are equally qualified for 

a position.

• The law limits the definition of ‘‘protected individual,’’ for purposes of citizenship-based discrimination. Citizens and nationals of the United States are 

covered. However, legal permanent residents, refugees, asylees and temporary 

residents are not protected if they do not apply for citizenship within six 

months of becoming eligible, or if they have not become naturalized within 

two years of applying unless they are still actively pursuing it.

• Finally, the law only applies in cases where there has been a finding of discriminatory intent; disparate impact alone is not sufficient.

These limitations on who is protected by IRCA’s antidiscrimination provisions 

mean that many victims of discriminatory practices are not able to file valid claims 

with the OSC. In those instances, the only way the OSC can remedy the unfair employment practices is through an independent investigation, the result of which is 

a civil penalty and changes in future practice. In such cases, however, the OSC is 

unable to obtain any compensation for the actual victim. 

In addition to the above budgetary and legal constraints, the extent to which the 

Office of Special Counsel engages in litigation over unfair employment practices is 

limited for another reason, which is the Office has sought, since its inception, to find 

better alternatives. The OSC devotes a great deal of its limited resources to an outreach and education program that seeks to inform employers, employees and the 

general public about their rights and responsibilities under IRCA’s antidiscrimination provisions and which seeks to help employers learn how to comply with employment eligibility verification requirements in ways that do not lead to unfair discrimination. 

For example, the Office’s outreach efforts include a national public awareness 

campaign known as ‘‘Look at the Facts . . . Not at the Faces,’’ focusing in particular 

on newly arrived immigrants who are more likely to face discrimination due to employer sanctions as well as on small business employers who may otherwise lack the 

resources to easily learn and comply with IRCA’s employer sanctions provisions in 

a fair manner. This campaign includes the wide distribution of educational materials and public service announcements on television, radio and in print. Perhaps 

the best evidence of the efforts of the OSC to make IRCA’s antidiscrimination provisions easy to understand and follow can be seen through the distribution in its materials of a simple list of ten steps that an employer can take to avoid immigrationrelated employment discrimination. I believe they are worth reciting here:

1. Treat all people the same when announcing a job, taking applications, 

interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Accept the document(s) the employee presents. As long as the documents 

prove identity and work authorization and are included in the list on the 

back of the I–9 form, they are acceptable.

3. Accept documents that appear to be genuine. Establishing the authenticity 

of a document is not your responsibility.

4. Avoid ‘‘citizen only’’ or ‘‘permanent resident only’’ hiring policies. In most 

cases, it is illegal to require job applicants to have a particular immigration 

status.

5. Give out the same job information over the telephone to all callers, and use 

the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on 

the appearance, accent, name, or citizenship status of your employees.

7. Complete the I–9 form and keep it on file for at least 3 years from the date 

of employment or for 1 year after the employee leaves the job, whichever 

is later. You must also make the forms available to government inspectors 

upon request.

29

8. On the I–9 form, verify that you have seen documents establishing identity 

and work authorization for all your new employees, U.S. citizens and noncitizens alike, hired after November 6, 1986.

9. Remember that many work authorization documents must be renewed on 

or before their expiration date, and the I–9 form must be updated. This 

process is called reverification. At this time, you must accept any valid documents your employee chooses to present, whether or not they are the same 

documents provided initially. (Note: you do not need to see an identity document when the I–9 form is updated.)

10. Be aware that U.S. citizenship, or nationality, belongs not only to persons 

born in the United States but also to all individuals born to a U.S. citizen, 

and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. 

Citizenship is granted to legal immigrants after they complete the naturalization process.

In addition, each year the OSC awards grants to organizations across the country 

to conduct local public education campaigns that can be targeted towards particular 

communities. Last July, for example, the OSC awarded $700,000 in grants to eleven 

nonprofit organizations, covering thirteen states, for public education programs. 

Business associations receive OSC grants as well, including the American Council 

on International Personnel, the Greater Miami Chamber of Commerce and the National Restaurant Association in the past few years. Since 1990, the OSC has 

awarded approximately $15 million in grants for outreach and education programs, 

in the hopes that IRCA-related employment discrimination—and the litigation made 

necessary when violations do occur—can be prevented. Unfortunately, the OSC’s re- sources for outreach have been cut since the beginning, so the Office has had to 

reach out to more newcomers with less money. 

Even once it is too late to prevent individual instances of immigration-related discrimination, the OSC seeks to avoid resorting to litigation when it is possible to do 

so. To this end, the Office established an ‘‘Early Interventions’’ program in which 

OSC staff determines that a case can be resolved quickly and without filing formal 

charges and, where a specific employee is involved, bringing him or her together 

with the employer to prevent a discriminatory act from taking place, or quickly remedying or undoing its effects. Early Interventions are made possible through the use 

of a toll-free telephone hotline that allows employers and employees alike to call, 

regardless of the caller’s language, with a complaint or a question about what to 

do in a specific situation. The hotline, which receives an average of 1500–2000 calls 

per month, has resulted in approximately 140–150 successful Early Interventions 

per year. 

Finally, the OSC also works through cross-governmental cooperation, having 

Memoranda of Understanding with numerous federal and state/local civil rights 

agencies. The OSC trains other civil rights agencies so that they, too, can carry out 

the mission of immigration-related job discrimination locally and receive cases 

which can be forwarded to the OSC in Washington. 

I realize that there is nothing I have said so far that cannot be said in even greater detail by Special Counsel Juan Carlos Ben ́ıtez himself. I say it all, however, because I believe it is important to drive home the point that the Office of Special 

Counsel is not some sort of overzealous or even ‘‘lawsuit happy’’ agency that is out 

to ‘‘get’’ businesses or anyone else. Hopefully I have succeeded in making this clear. 

Yet that does not mean that I have no complaints of my own about the agency. In 

fact, if everything else remains the same, I believe that the OSC needs to do far, 

far more to eradicate immigration-related discrimination. 

Over the past decade, there has been virtually no growth in the resources of the 

OSC. At the same time, the population of newcomers to the United States has 

grown substantially. As immigrants and refugees arrive, more education and more 

enforcement of antidiscrimination laws is becoming necessary. At the same time 

that the population of immigrants is increasing, immigrant communities are also developing in newer areas. More and more workers and employers are now facing immigration-related employment issues in places like Georgia, Iowa, Nebraska and 

Delaware, places where people did not have to face such issues in the past. And 

while IRCA’s antidiscrimination provisions have now been in place for nearly 16 

years, many businesses have not been in existence all that time, and many are still 

unfamiliar with the law’s requirements. 

Finally, the difficult documentation issues that employers now face did not exist 

in 1986. As Congressman Conyers, for instance, and many other immigration and 

civil rights advocates predicted would happen at the time of IRCA’s passage, the use 

of fraudulent documents has grown as a result of employer sanctions. Many employVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
30

ers, mistakenly believing that it is their responsibility to be certain that documents 

proving identity and work authorization are genuine in order to comply with IRCA, 

are naturally going to feel pressure to place extra scrutiny on workers, scrutiny that 

is bound, intentionally or unintentionally, to unfairly single out greater numbers of 

potential employees who look or sound ‘‘foreign.’’ The events of September 11, undoubtedly, have added to this by making immigrants even greater targets of suspicion. 

While the number of cases successfully handled by the Office of Special Counsel 

has increased in recent years, as the statistics I cited earlier show, the extent of 

the OSC’s enforcement efforts has still been woefully inadequate. It made a great 

deal of sense for the OSC to emphasize outreach and conciliation in the earliest 

stages following the enactment of IRCA, and this work remains crucial, but a tenet 

of enforcement in this area is that examples must be made of employers who flout 

the laws. Making an example of employers who engage in discrimination, I might 

add, also requires adequately publicizing the results of the OSC’s enforcement efforts, and this too is hindered by the agency’s limited resources—meaning that other 

employers not involved in OSC litigation are rarely if ever given enough encouragement to look at their own hiring practices. While most employers do indeed get it 

right when it comes to verifying employment eligibility in a fair manner, the need 

for a strong deterrent effect continues to exist, not only to make it clear to employers that antidiscrimination laws must be taken seriously but also to encourage victims of discrimination to come forward when their rights have been violated. 

While I believe that the OSC has performed as efficiently and fairly as it can, 

given the size of and the constraints on the agency, if it lacks the proper resources 

to look for discrimination, it is not going to be able to find it and properly deal with 

it. Even with the many ways that the OSC tries to make it easy for employers to 

avoid being sued, there are still going to be those who need lawsuits to force them 

to comply with the law. It is particularly in the interests of the majority of employers, who carefully avoid cutting corners, that the OSC ensures that other employers 

do not. Since its inception, the ability of the OSC to do this has been hampered, 

and if nothing else changes, the budgetary and legal resources available to the OSC 

need to be vastly improved before it will ever become a truly effective force in protecting the civil rights of noncitizens in the workplace. 

As you may have noticed, I have been arguing that the Office of Special Counsel 

needs to be strengthened if nothing else changes. The truth, however, is that something else can and ought to be changed. This brings me to my last point, what I 

and countless numbers of other immigration and civil rights advocates, not to mention both labor and business organizations, have been recommending for years. As 

the Subcommittee is aware, Congressman Frank proposed and Congress overwhelmingly supported the creation of the Office of Special Counsel in the hopes of addressing a very specific concern: the fear that the employer sanctions enacted as part of 

the Immigration Reform and Control Act would lead to increased discrimination in 

the workplace on the basis of citizenship and national origin. For a decade and a 

half now, the evidence has proven, overwhelmingly, that this fear was well-founded. 

IRCA’s employer sanctions have resulted in not just an increase but an explosion 

of immigration-related job discrimination, and I urge Congress to take the long-overdue step of bringing them to an end. 

The scope of immigration-related discrimination since the enactment of IRCA has 

been substantial, and numerous studies, by not only immigration and civil rights 

organizations such as the Mexican American Legal Defense and Education Fund 

and the American Civil Liberties Union, but also by the General Accounting Office 

as well as the U.S. Commission on Civil Rights, have confirmed this. For example, 

in its third report on employer sanctions, issued in March 1990, the GAO found that 

IRCA had created a widespread pattern of discrimination throughout the country. 

Although this pattern was evident throughout the country, it was highest in areas 

with the greatest numbers of Latinos and Asians. The GAO estimated that ten percent of employers had responded to IRCA’s employer sanctions by engaging in discrimination on the basis of national origin, and an additional nine percent of employers had begun to engage in discrimination on the basis of citizenship. This, the 

GAO found, amounted to 891,000 employers who—by their own admission—adopted 

discriminatory hiring practices as a result of employer sanctions. Subsequent studies confirmed that the existence of discrimination was widespread, and in 1993, the 

National Council of La Raza found that even if every single potential flaw in the 

1990 GAO study was accepted as a matter of fact, employer sanctions were still responsible for at least 111,375 new incidents of discrimination each year. 

Evidence has also shown that IRCA has caused discrimination in areas other than 

employment. The City of New York Commission on Human Rights, for example, 

found that:

31

The concept of ‘‘eligibility’’ as defined by IRCA has had a strong, negative impact on the availability and delivery of services to the immigrant community. 

Landlords and service providers may select potential tenants on the basis of 

citizenship or immigrant status, with the ultimate goal of denying service to 

certain national origin groups . . . Testimony [before the Commission] also revealed discrimination in the provision of services and public accommodations, 

including insurance and banking services, even though the IRCA does not directly affect these areas.

Similarly, a study for the District of Columbia Latino Civil Rights Task Force 

found, in a particularly blatant example of IRCA-related discrimination that:

Banks have . . . become institutions that believe it is their right to screen 

Latinos and determine whether they are properly in this country . . . In Maryland . . . for example . . . in order to cash a check . . . a Maryland driver’s 

license or Maryland ID [is required], and the sign at the bank requiring such 

documents is written only in Spanish.

In addition to causing widespread discrimination, there is also compelling evidence that employer sanctions have simply failed to achieve their stated goal of discouraging illegal immigration. The current undocumented population in the United 

States now stands at 8.5 million people; millions more than were present in the U.S 

when IRCA was enacted. Because of lax enforcement and loopholes present within 

the employer sanctions law, employers know that their chances of being penalized 

for knowingly hiring undocumented workers are slim to none. Undeterred, many 

employers who deliberately hire undocumented workers factor the cost of a penalty 

into their overall cost of doing business. At the same time, even though only three 

percent of employers in the United States hire undocumented workers, all employers must comply with the I–9 paperwork requirements. The INS has estimated that 

as a result, U.S. employers spend over 13 million hours each year filling out these 

forms. 

In 1999, in response to overwhelming criticism, the Immigration and Naturalization Service announced that it was reducing its efforts to enforce the IRCA employer 

sanctions provisions. While the intent of this shift in priorities is laudable, the fact 

that the largely unenforced sanctions remain on the books has brought another 

problem to the surface: there is now even less of a disincentive for employers to hire 

undocumented workers, yet employers who want to get rid of particular employees, 

for example because of their union activities, can still justify their actions by claiming that they are merely doing it out of fear of employment sanctions. This problem, 

and the resulting abuses faced by employees in the workplace, was a major factor 

that led the AFL-CIO to reconsider its position on employer sanctions and call for 

their repeal. 

Ultimately, the INS’s announcement that it is reducing its emphasis on the enforcement of employer sanctions is of little comfort to employees who are facing discrimination in the workplace based on national origin or citizenship. In the same 

way that the INS’s announcement in late 2000 that it would increase its use of 

‘‘prosecutorial discretion’’ in pursuing removals under the mandatory deportation 

provisions of the 1996 immigration law reforms has done little to reduce the harsh 

impact of those laws, the decreased enforcement of the employer sanction provisions 

by the INS will do little to reduce the unfair consequences that exist, as long as 

the laws continue to remain on the books. 

In closing, I would like to address specifically the concern that IRCA’s employer 

sanctions and antidiscrimination provisions, taken together, make some employers 

feel ‘‘stuck between a rock and a hard place.’’ I believe that the OSC has done what 

it can, through educational materials such as the ten-step list I described in my full 

statement, for example, to make it easier for employers to see that there need not 

be any such dilemma. But to the extent that the dilemma still does exist in the 

minds of those whom the OSC has not been able to reach, I would suggest this: if 

employers no longer faced the threat of sanctions, they would be far more comfortable with the antidiscrimination laws. Eliminate the ‘‘rock,’’ and the ‘‘hard place’’

is no longer so hard. 

In fact, eliminating sanctions could ultimately prove to have another benefit for 

employers: they would no longer need to fear dealing with the Office of Special 

Counsel either, because the need for the agency would likely diminish. Congress, 

after all, created the OSC solely to deal with any discrimination that resulted from 

employer sanctions. Congressman Frank, whose amendment to IRCA created the 

Office, made this perfectly clear in 1986 during a discussion of the agency on the 

House floor: ‘‘If we get rid of sanctions, we get rid of this.’’ If Congress takes the 

long-overdue step of eliminating employer sanctions, it would go a very long way 

32

towards eliminating the problem that has made the agency so very necessary in the 

first place. I look forward to the day when we no longer need the OSC. Until then, 

however, I will continue to strongly urge Congress to provide the Office with the 

resources it needs. 

Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee, 

thank you for providing me with the opportunity to testify today. I will now be 

happy to answer any questions that you may have.

Mr. GEKAS. And we thank the gentleman. 

Let the record indicate that the gentleman from Michigan, Mr. 

Conyers, the Ranking Member of the full Committee on the Judiciary, is present, and we will accord him now a chance for an opening statement. 

Mr. CONYERS. Thank you, Chairman Gekas, for permission to 

make a comment. 

I would ask that my introductory statement be included in the 

record. 

Mr. GEKAS. Without objection. 

Mr. CONYERS. Might I just summarize my opening statement as 

follows: That when Barnie Frank and I, in 1986, learned that employer sanctions that were being legislated into the Immigration 

Act of that year, we predicted it would lead to widespread use of 

fraudulent documents and consequently result in more discrimination against immigrants seeking employment in the country. 

Mr. Frank mitigated this problem, we thought, by offering the 

amendment that created the Office of Special Counsel to prevent 

and prosecute employment discrimination against immigrants. 

Now, in the years past, we have seen substantial increases in the 

discrimination that we predicted. With decreasing and insufficient 

funding, the Office of Special Counsel has consistently done extremely important work by informing employees of their rights 

under the statute, advising employers on how to avoid violating the 

statute, helping to obtain important settlements for individuals 

who have been victims of discrimination under the statute, and 

prosecuting discriminatory employers who were unwilling to settle 

or adhere to the law. 

Now, in the midst of all of this, the Office of Special Counsel 

budget has been decreased, and I think that’s the first point of interest an action that this Committee may want a repair to. The 

need for their efforts has increased as immigration population have 

expanded to communities across the country that previously had 

only small immigrant populations. Now I have no doubt that addressing employment discrimination is critically important to all, 

particularly in the Arab American and Hispanic populations, which 

have grown considerably in my particular area. Yet the Office of 

Special Counsel is barely able to address the problem of discrimination in hiring and firing at all. 

Now, in the first place, the statute exempts most cases of discrimination on national origin or citizenship against immigrants so 

that it only applies to and protects a small and narrow class of victims. That seems the second issue to which this Committee may 

want to examine, whether this should be allowed to continue. 

Though some nearly 900,000 employers have admitted to the GAO 

they engaged in behaviors amounting to illegal discrimination, the 

Office of Special Counsel is able to settle and prosecute roughly 50 

cases a year with their insufficient budget and staff. We have not 

33

enabled them to fulfill their mandate and their efforts that at least 

scratch the surfaces in what we are trying to do. 

Now the case of our friend sitting next to Wade Henderson, Otto, 

and I cannot see his last name. 

Mr. KUCZYNSKI. Kuczynski. 

Mr. CONYERS. Kuczynski. We have a lot of your relatives in my 

area in Detroit. 

Now you present yet another problem that challenges the Committee, that is, to what degree of scrutiny and inspection is an employer to be held in determining whether these documents are real 

or not? I think that’s a real problem, notwithstanding lots of employers know darn well what’s happening. Now we’re in real time 

up here, so we don’t need one employer parading before the Committee acting like he represents all of the businessmen that are involved with this, when most of them know what’s going on and so 

do we. 

Now the question is what is it that we’re to do about it? And I’m 

happy to continue this discussion with the Committee and the witnesses, and I thank you for your time, Mr. Chairman. 

Mr. GEKAS. We thank the gentleman. The chair will yield itself 

such time as it might consume up to 5 minutes. 

It seems that in one way or another everyone has confirmed the 

inequity of what Mr. Kuczynski describes as the employer’s dilemma to have to hire the person first and then determine whether 

the documentation was valid, et cetera, and then be subject to all 

of the claims and counterclaims that flow from there if he makes 

a different decision. 

Mr. Greene, do you have comments on that? 

Mr. GREENE. Well, sir, I think, as I mentioned, the INS has been 

working to find the right way to use this tool since it was first 

passed in 1986. And the dilemma that we realized early on, which 

has been alluded to by yourself, as well as the Members, is that 

the provisions of the 1986 act can be met by employers, and illegal 

aliens can still be found in the workforce, and that is either 

through a combination of document fraud or mostly through the 

documents that have been, you know, virtually expanded the market of counterfeit documents after the law was passed. 

INS began, as you know, in 1987 with its efforts of employer education, but the tactic at that point and the strategy at that point 

was essentially removals of the illegal aliens who are in the workforce, recognizing that it was difficult to hold an employer accountable unless we could establish, by sworn testimony from the unauthorized workers, that the employer knew at the time that they 

were authorized—unauthorized, rather, and hired them anyway. 

That was, in fact, the strategy that was in place in 1991. 

As I said, we’ve had to review that. We’ve had to look at that 

again. This Committee is well aware of the sort of public reaction 

and the lack of public support that that strategy evinced through 

the ’90’s, and we are now focusing on the kinds of offenders that 

Representative Conyers has mentioned here, employers who are 

knowingly violating the criminal provisions of the law, and that is 

the focus of our efforts with respect to the employer area. 

Mr. GEKAS. Mr. Henderson, that same dilemma which we have 

described here, I don’t see in the 10 points that you are describing 

34

of what might be discrimination guidelines that should be followed, 

I don’t see how any one of those 10—maybe I skipped something— would alleviate this dilemma problem that we’re talking about, do 

you? 

Mr. HENDERSON. Well, Mr. Chairman, the dilemma that you allude to begins, of course, with the congressional decision to impose 

sanctions as an enforcement tool of existing immigration law. 

As you know, the provision has, in fact, required employers to 

play a law-enforcement role by reviewing these documents. It is a 

fairly straightforward process. 

Mr. GEKAS. It is what? 

Mr. HENDERSON. It is a fairly straightforward process in the 

sense that employers are told to examine certain specific documents, and they are to make judgments. 

If the documents appear valid on their face, the employer is then 

permitted to go forward in hiring the individual who is presumed 

to be authorized to work. As Mr. Kuczynski has said, after the fact, 

of course, seeking additional verification, he may then determine 

that the documents were not valid, that the employee whom he has 

hired and trained is not a valid employee and that he is then required to terminate that employee, having invested resources in his 

or her training and making that decision a very painful one. 

He has asked, therefore, that the verification process be done on 

the front end and that only those individuals who have been verified in advance would then be subject to hire. The problem, of 

course, is that that imposes an extraordinary burden on the individual and, of course, it is not just persons who are here in the 

United States as immigrants or as visitors, but it applies across the 

board to United States citizens as well, and that hardship is unreasonable and Congress did not seek to impose it. 

But we said, on the other end of that, and Mr. Conyers, who was 

one of the authors of the anti-discrimination provision and who led 

the charge in this discussion, made it clear at the time, as he reiterated here today, that discrimination in employment decisions was 

an inevitable result, a byproduct of Congress’s decision to impose 

sanctions in the manner that was adopted, and that has proven to 

be the case. And that assertion has been verified by the General 

Accounting Office independently of the advocacy community or the 

NGO community. 

I suppose, from our perspective, what we have said is that persons in the United States who are lawfully entitled to work should 

be protected from decisions based on stereotypic assumptions about 

their eligibility for employment because some employer decides 

that, you know, you look too Hispanic to be a United States citizen 

or I’m going to ask for additional documentation, as Mr. Kuczynski 

himself said he believes is often a better approach than accepting 

with the INS says, and therein lies the dilemma. 

On the one hand, trying to comply with Congress’s mandates and 

on the other hand trying to avoid discrimination, it has proven to 

be very difficult for some employers. And what we have said is that 

examine them, the underlying premise behind the employer sanction strategy and reassess now that the sanctions have been in 

place over 15 years, whether in fact those provisions have achieved 

the enforcement goals that were originally behind their adoption. 

35

The Immigration Service, it seems, is not really the policy arm 

in determining this. They are enforcing a statute given to them by 

Congress, and the Civil Rights Division of Justice is in the same 

posture. What we are looking to is guidance from Congress as to 

whether the sanctions that were originally adopted some 15 years 

ago need to be calibrated, recalibrated or eliminated because they 

no longer achieve their desired purpose and the side effect of discrimination seems to be an inevitable result, and therein lies the 

dilemma. 

I think that the Department, the Immigration Service has made 

a reasonable effort to avoid that problem by presenting pretty 

straightforward instructions on how to fill out and execute the I– 9 and other decisions in that regard, and the Office of Special 

Counsel has tried to provided guidance on how to avoid discrimination. I’m not certain how much more they can do to resolve the 

problem that it seems finds its initial genesis here in Congress. 

Mr. GEKAS. The time of the chair has expired. 

We turn to the lady from Texas. 

Ms. JACKSON LEE. Mr. Conyers, do you want to take your questions——

Mr. CONYERS. I beg your pardon? 

Ms. JACKSON LEE. Do you want to take your questions at this 

time? 

Mr. CONYERS. I would yield to the gentlelady. 

Ms. JACKSON LEE. I thank the Ranking Member and I thank the 

Chairman. 

Mr. Kuczynski, can you just give me succinctly the facts of the 

1990 and 1991 case that you were speaking of. What did you say 

exactly your staff did with respect to employees? 

Did you hear me, Mister—is that his name? 

Mr. GEKAS. Mr. Kuczynski. Did you hear the question, Mr. 

Kuczynski? 

Mr. KUCZYNSKI. No, I did not. 

Ms. JACKSON LEE. Would you repeat the question, Mrs. Lee. 

Ms. JACKSON LEE. Okay. I am asking you a question. Good morning. 

Could you specifically indicate the actions that your employees 

took in the 1990 or 1991 case with respect to the workers. You 

hired them and you asked for documentation or what occurred? 

Mr. KUCZYNSKI. At that time, we would ask for documents. 

Green cards could be bought on any street corner in Patterson for 

100 bucks. We did not have the knowledge of how to check them 

out, what to do. If you have a green card, you are hired. 

Ms. JACKSON LEE. Correct. 

Mr. KUCZYNSKI. When the raid took place, literally every one of 

those that was found to be illegal had a green card, and one of the 

reasons that the INS never issued a summons was because they realized we could not determine if the card was good or bad. 

Ms. JACKSON LEE. Right. Let me just stop you there. 

Your sanctions were based upon what? You had an individual 

that you were required, ordered ultimately to pay back pay to. How 

did that generate? 

Mr. KUCZYNSKI. That was a different case altogether. 

Ms. JACKSON LEE. That’s what I’m trying to find out. 

36

Mr. KUCZYNSKI. What happened—what happened there, this lady 

applied for a job. We were, at that time, laying off people, not hiring people because our business is very seasonal. 

Ms. JACKSON LEE. I understand. 

Mr. KUCZYNSKI. Okay. She was asked, besides the Social Security card, for some other identification. She never came back. The 

next thing that we heard was we got this letter stating that a 

charge was filed that we were discriminating. All right? This is the 

way it happened. 

I was adamant that we were not discriminating. We were not. As 

a matter of fact, the mere fact that her husband had worked for 

my company and was fired because he was a supervisor at night 

and would take off 5–6 hours during the night, and when we found 

out what he was doing, we fired him. Five weeks later she comes 

in, applies for a job, and then she files charges against us. To me, 

that was a perfect set-up how to get back at me. 

Ms. JACKSON LEE. I thank you. That’s what I wanted to——

Mr. KUCZYNSKI. That is the story about that case. 

Ms. JACKSON LEE. That’s what I wanted to clarify, and I do want 

to acknowledge and thank you for your testimony. 

I want to raise then with Mr. Benitez in his position and contrast 

Mr. Henderson’s recounting for us I think 10 very apt and very understandable instructions that I assume that you are still providing 

employers; is that correct? 

Mr. BENITEZ. That is correct. 

Ms. JACKSON LEE. And the one key—I think Mr. Henderson has 

made a very valid point with respect to staffing, with respect to the 

numbers of sanction dollars, which is $169,000—is that per year, 

was that? And so it does not look as if you are recklessly going 

about the country. It may be that you have an overload that you 

can’t get to. 

But one in particular, and respond to this for me, says, ‘‘Accept 

documents that appear to be genuine. Establishing the authenticity 

of a document is not your responsibility.’’ Is that accurate, Mr. 

Benitez? 

Mr. BENITEZ. That’s absolutely accurate. 

Ms. JACKSON LEE. And is that still the instruction to employees 

around the country? 

Mr. BENITEZ. Yes, it is. 

Ms. JACKSON LEE. Then who is the ultimate determinator that 

makes a determination regarding the authenticity of the document? 

What’s the next step after that? 

Mr. BENITEZ. After you accept the document? 

Ms. JACKSON LEE. The employer has hired the individual. Is 

there then some subsequent potential for penalty to the employer 

if you come and find out the documents were not authentic? 

Mr. BENITEZ. Not if they look and appear valid on their face. 

Ms. JACKSON LEE. So there sanctions do not ensue at that point. 

Mr. BENITEZ. No. 

Ms. JACKSON LEE. And the whole issue of your office is to ensure 

that we protect individuals against discrimination. 

Mr. BENITEZ. Yes. 

Ms. JACKSON LEE. And is a Social Security card considered an 

acceptable document? 

37

Mr. BENITEZ. It is considered an acceptable document, and the 

employer—having said that—the employer has the right, if the 

card does not look valid on its face, to go and call the Social Security Administration and confirm the validity of the document. 

Ms. JACKSON LEE. They have that right, but you still maintain 

that Provision 3, ‘‘Accept documents that appear to be genuine. Establishing the authenticity of a document is not your responsibility,’’ is still a guideline that can be covered by a company, and 

they would be in good stead. 

Mr. BENITEZ. Yes. 

Ms. JACKSON LEE. I think the point is important to both my colleagues and the witnesses because I, too, believe that individual 

cases should be addressed. I do understand the position taken by 

a business owner who was in a layoff period and had some other 

issues, but I think we have to be very, very careful in stepping on 

the basic premise of your office, that is, to protect against discrimination and that, in protecting against discrimination, you are not 

randomly sanctioning employers. I hesitate to remove sanctions. 

I’d like them to be reasonable and responsible in how you address the question, but it is my understanding is if I, as an employer, can rely, can take a document, and I am hiring, and I have 

no legal obligation, I am not sanctioned for you coming and telling 

me, ‘‘You know what? You didn’t vet this document that looked 

real.’’ That is not where the sanction comes in. The sanction comes 

in on the pure premise of discrimination, and I don’t think that we 

can take one case, though there may be others, and maybe we 

should continue to question, one case out of the work of that office 

to suggest that the validity of the office and what you do preventing discrimination is not real, continuous and necessary. 

So I will keep an open mind, and I certainly want to be responsible to small businesses, and I want to be responsible to the economy and the need for employees, but I am struck by this one provision, and I think if you put this in bold letters everywhere, and if 

you’re holding to your word that you’re not going on, and maybe 

I should say to Mr. Greene, as I understand the interpretation of 

Mr. Benitez, that is accurate. You are not going out taking fish 

nets to employers who legitimately look at documents, hire the individual and move on. 

Mr. GREENE. Yes, ma’am, that’s correct. It was a very early appreciation by the INS after this act was passed that we could not 

expect nor, frankly, train employers to be forensic experts with respect to our documents. 

Now, I do want to add to the record that under the law a Social 

Security card of itself does not satisfy the requirement, the obligations that the employer or the employee have under the act. There 

has to be an identity document that is attached to that, but it can 

be a valid driver’s license issued by a State. But it does have to 

have a photo ID. So it’s the combination of a document that establishes identity and a document that establishes authority to work. 

Under our statute, a driver’s license, a valid driver’s license, a valid 

Social Security document will do that. 

The records that INS maintained in the early ’90’s with respect 

to Fairfield Textiles were purged as part of our routine purging 

process based on the instruction that says that if there are no addiVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
38

tional complaints against this company, then you can purge those 

records. So it’s difficult for us to reconstruct what happened in 

1991. All of the work-site enforcement work that we do is lead-driven. It’s based on something that we hear. But I think it is safe for 

us to conclude that, in the absence of any additional complaints, it 

was clear, from our point of view, at least, that Mr. Kuczynski’s 

company was in compliance with the employer sanctions law at the 

time. 

So we’re—we recognize that employers—we don’t expect them to 

be forensic document experts, and we don’t penalize them if, in 

fact, they have made the good-faith effort, which our review of the 

I–9s demonstrates. And yet we still find illegal immigrants working 

in the workforce. 

Ms. JACKSON LEE. Excuse me. You just said that he was in compliance. Are you saying that the rendering of the 1999 case or resolution that he was speaking of was——

Mr. GREENE. That’s—what I was referring to, ma’am, was the 

compliance with the parts of that section of law that we enforce, 

which is that they have complied with the requirements to execute 

the I–9 and take the appropriate steps with respect to checking 

that they were maintaining an unauthorized workforce. 

In my opening—and I want to be clear about this. In my opening 

statement, I emphasized that the INS has no responsibility with 

respect to enforcing the unfair immigration-related discrimination 

aspects. 

Ms. JACKSON LEE. So you’re not speaking to the individual case 

that was then handled by your office? 

Mr. GREENE. I was not. I was referring only to the 1991 incident 

that was referred to in Mr. Kuczynski’s testimony. 

Ms. JACKSON LEE. Mr. Benitez looked like he wanted to answer. 

Mr. BENITEZ. We’re talking about the dilemma that the employer 

finds himself in. It’s—the way I look at the statute and the—there 

is a dilemma, but I think it’s a different one. It’s a dilemma that 

the employer finds himself in is the same dilemma that we find 

ourselves when we go into a freeway or into a highway. There is 

a minimum speed that we need to observe, and there is a maximum speed that we cannot exceed. That is the same position that 

the employer finds himself. It is—you cannot ask for more than a 

certain amount of documents, but there’s a minimum threshold 

that needs to be met. 

Having said that, the real dilemma that they’re finding themselves in is that nobody has told them that there is a maximum 

speed limit. So once they find themselves in a situation where they 

are informed that they were going too slow, they have a tendency 

to try to speed up and break the speed limit, and that’s where we 

come in. 

That’s why in our opening statement we’re saying the biggest 

concern and the biggest challenge that our office has is to let the 

people know, both employers and employees, the existence of this 

top ceiling and what their rights and obligations are. 

Mr. GEKAS. The time of the—— Ms. JACKSON LEE. Mr. Chairman, your indulgence is kind. I saw 

Mr. Henderson’s hand up, and I would ask—and I thank the gentleman, the Chairman for his indulgence. 

39

Mr. HENDERSON. Thank you, Ms. Jackson Lee. Thank you, Mr. 

Chairman. 

I simply wanted to add one additional point, and I would agree 

with Mr. Benitez, there is a dilemma but of a different character. 

When Mr. Kuczynski described his experiences with the raid, 

what he said was, I thought, very important. One, he did try to follow the requirements of the law. He looked at the documents. He 

made intelligent judgments. And he accepted documents on their 

face that appeared to be valid by any reasonable standard. 

Once it was discovered, however, that he had hired undocumented immigrants based on this presumably valid identification, 

he was sanctioned in one very important way. He lost a skilled 

staff that he had helped to train over a period of several days, presumably several weeks, that he would then have to immediately replace, in the middle of his most important season. And so he is an 

individual who’s trying to meet the deadlines and requirements of 

small business, who has a workforce, by definition, a small business workforce. He then discovers that a portion of that workforce 

which he helped to train, to make skilled and accessible to do the 

work, has now been summarily removed at a time when he needs 

them most. 

Now, what that has done to him is it’s crippled his business, it 

drove some of his business to his competitors, and it made him 

hyper-sensitive about hiring any individuals who appear to be immigrant or perhaps to attract that kind of attention from the INS. 

So then he turns around and asks for more documents than the 

law requires and ends up running into a wall around anti-discrimination because he did violate the statute, whether he accepts it or 

not. By asking for more than the document—that the statute requirements, he was technically in violation. So what is he supposed 

to do? 

He hired according to the law. The INS concedes he didn’t do 

anything wrong. Yet they penalized him implicitly by snatching a 

percentage of his workforce that he helped to train and that is absolutely essential to the completion of his task as a small employer. 

Then when he turns around and imposes stricter standards on future hiring prospects, he gets hit because he violated the anti-discrimination law. And that is a legitimate dilemma, but it goes back 

to my original point. 

Mr. GEKAS. The time of the lady has expired. 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. GEKAS. The gentleman from Michigan is recognized. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I suppose we are indebted to my colleague, Mr. Barr, for this 

hearing because of his concern, and I share this concern with him. 

We find each other in the civil libertarian trenches shoulder to 

shoulder with increasing frequency. And I think that we are really 

on the horns of a much larger dilemma. 

Now, Mr. Benitez, since you are a Bush appointee, a year or less 

in office, so the charity with which you are being treated this morning is not to be considered to be what you’re going to face after 

you’ve been here working on this problem for 16 years, like Mr. 

Greene. 

40

Now, Mr. Greene, apparently—approximately how long—how 

much more time will you need to fashion a solution to this problem? I mean, you should sleep very uncomfortably in your bed tonight to have the audacity to come before a Committee and tell us 

that for 16 years you’ve been struggling on a problem for which you 

have no answers. That was a question. 

Mr. GREENE. Congressman, I think we have provided an answer. 

The——

Mr. CONYERS. What is it? 

Mr. GREENE. The strategy that I outlined to you that we’ve had 

in place since 1999, which focuses on employer sanctions cases that 

have three characteristics, one of three characteristics——

Mr. CONYERS. Well, why don’t you employ it? 

Mr. GREENE. We are employing it, sir. As a matter of fact——

Mr. CONYERS. Well, it’s not working. 

Mr. GREENE. What it is doing is that it is eliminating criminal 

organizations that are supporting smuggling for the purpose of 

worker exploitation into this country. We have prosecuted over 125 

cases after—in the year 2001——

Mr. CONYERS. That, sir, is a different but important problem, but 

does not speak to the reason that the Chairman of this Committee 

called the hearing. Now——

Mr. GREENE. If I may add——

Mr. CONYERS. No, you may not add. Now, Members of the Committee, the problem—the reason it’s fair larger than the issue that 

Mr. Barr has brought us here to examine is that approximately 50 

percent of all the workers in the harvesting industry in the United 

States of America, the poultry industry of the United States of 

America, the meat industry of the United States of America, are 

undocumented workers. Now, there’s the problem. 

And so when this little office comes up with 50 prosecutions in 

a year, that isn’t what’s causing the unrest. We have—I don’t know 

what the percentage is in the other industries, the clothing industry and all those allied businesses. There’s a large percentage of 

them as well working undocumented. 

So for Mr. Greene to come before us this morning in broad daylight and tell us about another problem that’s being taken care of 

while this huge problem, Mr. Benitez, goes unexamined and 

unaddressed is asking us to rearrange deck chairs on the Titanic. 

I mean, this is not the way to proceed at this problem because we 

have this larger problem to which I hope you will kindly give your 

attention as we move forward. 

I would now like to yield to Mr. Henderson, if he has any comments that he would like to add. 

Mr. HENDERSON. No, Mr. Conyers. I think that you have aptly 

described the dilemma and the problem that I think this Subcommittee has helped to raise today. So I appreciate it very much. 

Thank you. 

Mr. CONYERS. Thank you, Mr. Chairman. I return my time. 

Mr. GEKAS. Thank you. 

The Chair will accord the privilege to Mr. Barr to ask any series 

of questions that he might have developed in conjunction with the 

request that he made to this Committee in the first place for the 

41

purposes of this hearing. But before that, perhaps Mr. Greene 

wants to answer the unanswered question. 

Mr. GREENE. Thank you, Mr. Chairman. I simply wanted to add 

to fill out the Committee’s understanding of the challenge that we 

face in work-site enforcement, and that is that there are circumstances and conditions within the environment that affect the 

strategy. In the beginning of the 1990’s, we were looking at a much 

higher unemployment rate, and so issues such as the displacement 

of authorized workers, United States citizens, and legal immigrants 

by illegal migration was a much stronger issue than it was in the 

late ’90’s, and those are some of the factors that we have to consider as we evolve our strategy. So we have taken the posture, and 

did with the interior enforcement strategy, that there is no single 

answer that works at all times in all places. The strategy is designed to address the harms that are created by illegal migration. 

In some cases, those harms involve smuggling, worker exploitation, 

or displacement of United States citizens and legal immigrants. 

And that’s the focus of our strategy now, combined with a tactic to 

address those with criminal prosecutions. And I thank you, sir. 

Mr. GEKAS. The Chair recognizes Mr. Barr. 

Mr. BARR. Thank you, Mr. Chairman. 

What appears to be the absurdity of this whole matter I think 

can be summed up by looking at the back of an I–9 form in conjunction with other documentation and material that the Immigration Service and the Department of Justice put out. 

According to the Guide to Fair Employment put out by the Department of Justice, Civil Rights Division, Office of Special Counsel 

for Immigration Related Unfair Employment Practices, an employer essentially has to accept the documents given to him; he 

cannot look behind them, regardless of what common sense tells 

him. You all are shaking your head. That’s correct, right? He has 

to accept them even if they are different from the documents that 

the person, the prospective employee, original tendered—originally 

tendered. The employer has to let the employee or the prospective 

employee choose the documents. 

And then you look at the back of the I–9 form, and you see that 

somebody has determined that as a legal burden on the employer, 

they would have to accept as both establishing identify of the prospective employee or the employee and the employment eligibility 

an expired U.S. passport. 

Now, Mr. Benitez, you used an analogy to traffic offenses earlier 

in support of the way the Government operates here. Is it your understanding that police officers or sheriffs, if they stop somebody on 

the highway and have lawful cause to do so and are given an expired driver’s license, that they give a tip of the hat to that person 

and accept that and ask them to be on their way? 

Mr. BENITEZ. Well——

Mr. BARR. The answer is no, is it? I mean, clearly, you couldn’t 

even defend that with a straight face. That’s why you’re smiling. 

Mr. BENITEZ. Not being an expert in that field, I would assume 

that I would get a ticket. 

Mr. BARR. Well, you’d assume correct, and one doesn’t have to be 

an expert in that field to understand the absurdity of trying to say 

that a requirement placed on State police that they have to accept 

42

as proof of a person’s eligibility to drive the roadways of a particular State, that they have to accept an expired driver’s license. 

That’s absurd. Why in heaven’s name you tell an employer who is 

attempting to comply with your law, with the law of this country, 

that they would have to accept—cannot look behind, cannot ask for 

additional documentation—a person that presents to them an expired U.S. passport. Mr. Benitez? 

Mr. BENITEZ. The Office of Special Counsel, one of the limitations 

that we have is that there is—if there’s a requirement placed by 

a State or Federal law or regulation, we could not challenge or 

question that document or the—that’s required in this case. I have 

just arrived into my office come November 12 of 2001, and the documents that are in the I–9 form are the documents that have precedence in the regulation of the United States of America, and I 

have to give it good-faith value and follow those. That’s what I’m 

entitled to enforce. Presently—— Mr. BARR. Does it make sense to you? 

Mr. BENITEZ. I would—— Mr. BARR. I mean, a person with—what does it tell you as an attorney that a person presents an expired passport? That doesn’t 

tell you anything at all about their current status, does it? It just 

tells you that at the point that they applied for that passport, 

which could have been a decade or 20 years before, because this 

says without limitation, they have to accept an expired passport as 

proof. But it doesn’t tell you anything about that person’s current 

status, does it? 

Mr. BENITEZ. Well, it tells you that that person’s a U.S. citizen. 

Mr. BARR. No, it doesn’t. It’s an expired passport. Cannot a person renounce their U.S. citizenship or engage in some other activities such as serving in the armed forces of a foreign country that 

has the legal effect of removing their U.S. citizenship? Isn’t that 

correct? 

Mr. BENITEZ. That is correct. 

Mr. BARR. So the expired passport doesn’t tell you anything, 

doesn’t prove to you anything about their current status at the 

time they tender that document, does it? 

Mr. BENITEZ. It tells you that that person used to be a U.S. citizen. 

Mr. BARR. But it doesn’t tell you whether they are currently, 

does it? 

Mr. BENITEZ. No. 

Mr. BARR. Then why should an employer be forced to accept that 

as proof that it does? Doesn’t that defy common sense? 

Mr. BENITEZ. I would have to investigate more, further on this 

information. 

Mr. BARR. To determine whether it defies common sense? 

Mr. BENITEZ. It would take—it would tell me on common sense 

looking at it that if the picture of the person is—looks similar to 

the individual that I have there and it is a document that states 

the name of the individual, that that person was until recently a 

U.S. citizen. 

Mr. BARR. If a Federal law enforcement official, let’s say an INS 

agent, were investigating a case, they would be entitled not to have 

to accept that expired U.S. passport as proof of anything. For exVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
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ample, the work-site enforcement policies put out by the Immigration and Naturalization Service and a letter from former Commissioner Meissner dated December 31, 1996, as Attachment A, establishes very appropriately that if the Government is seeking to enforce our immigration laws, they are entitled to exercise reasonable 

suspicion, basically common sense, and they can take into account 

so long as they can articulate them in a court of law when required, and if required to do so, nervousness of the subject or what 

they—what this document describes as ‘‘studied nonchalance of employees in the presence of Federal officers at the workplace,’’ foreign manners of dress or grooming, apparent inability to speak 

English. Yet these are the very same things that you’re telling the 

employer they cannot do under penalty of criminal and civil sanctions. 

Does that make sense? 

Mr. BENITEZ. Well, I would first want to address your first point 

of view on the documents that are acceptable on the I–9. The documents that are present in the I–9 are established by statute. 

Mr. BARR. I asked you if it made common sense, and you said—

you agreed with me that it really doesn’t. 

Mr. BENITEZ. As far—as far as the statute’s concerned, I guess 

Congress and the President decided that it made sense to them. 

Mr. BARR. If the point of all this is—if the intent of the statute 

and the intent of what you’re office is trying to do is to ensure compliance with the law—— Mr. BENITEZ. Correct. 

Mr. BARR [continuing]. And not to discriminate against employers who are simply trying to do the same thing—— Mr. BENITEZ. Right. 

Mr. BARR. Let’s not impute bad motives to them unless it can be 

established. Wouldn’t it make sense to come to the Congress and 

say, Congress, you put us in a ridiculous situation here; it’s absurd 

to tell us that we have to enforce sanctions against an employer because they refused to accept the document that wouldn’t even be 

acceptable to a law enforcement office, and that is an expired identity document. Would you do that, recommend that since this requirement doesn’t make any sense and it’s not reasonable, to ask 

Congress to change at least that portion of the law? 

Mr. BENITEZ. Knowing that Congress would not put something in 

a document that would not make sense, I would first want to inquire and look back at exactly what—— Mr. BARR. Well, this—well, we’ve already established that this 

doesn’t make sense, accepting an expired U.S. passport, because it 

doesn’t tell you anything about that person’s status. But with regard to the employer themselves, why would the Government not 

want that employer to be able to exercise reasonable suspicion, 

common sense? Just this document which employers have available, Guide to Fair Employment, essentially tells them they cannot 

exercise any judgment whatsoever, and that includes reasonable or 

unreasonable; that if they have somebody that comes in there 

that—by the same reasonable suspicion standards that an INS 

agent or other Federal law enforcement officer could legitimately 

use as the basis to detain somebody or to inquire further, that they 

can’t do that? Why would not the Government want them to be 

44

able to exercise common sense, reasonable suspicion, as long as 

they could articulate it? 

Mr. BENITEZ. I think what the statute tries to do is to put everybody at the same level to——

Mr. BARR. And that same level being you cannot exercise common sense, you cannot use reasonable suspicion——

Mr. BENITEZ. No——

Mr. BARR [continuing]. You have no ability to do anything other 

than just accept what that person gives you blindly? 

Mr. BENITEZ. No. I think that what the statute tries to make 

clear is that you should treat everybody the same way, regardless 

of how they look or sound. And if you’re asking——

Mr. BARR. But if the Federal law enforcement officer is able to 

use reasonable suspicion, and as long as they do it across the 

board, why not offer the employer the same opportunity? Wouldn’t 

that make sense? Isn’t that what we want to do? We want to say 

that we are a Nation based on reasonableness and common sense, 

and we want you employers to exercise that. We’re going to hold 

you to a high standard in your exercise of it. 

Mr. BENITEZ. Sure. 

Mr. BARR. But we’re not going to require you to accept unexpired—to accept expired documentation. Wouldn’t that make sense? 

Mr. BENITEZ. I agree, and I think your point is well taken. We’ll 

take it into consideration. 

Mr. BARR. Thank you. 

Mr. CONYERS. Mr. Chairman? 

Mr. GEKAS. For what purpose does the gentleman——

Mr. CONYERS. Could I ask unanimous consent that I be permitted to speak 3 minutes to yield to Mr. Henderson? 

Mr. GEKAS. Mr. Barr has the time. I have the prerogative. If Mr. 

Barr doesn’t mind, I don’t mind. Proceed, Mr. Henderson. 

Mr. HENDERSON. Mr. Barr—thank you very much, Mr. Chairman, and, Congressman Barr, I simply wanted to respond to, I 

thought, the two questions that you posed to Mr. Benitez—first, 

about the use of expired documents as a form of documentation; 

and then, secondly, about whether employers should be entitled to 

exercise judgment and discretion in assessing whether an individual meets the standards behind the statute that Congress enacted. 

First of all, an expired passport, as you say, does not establish 

an individual’s identity, necessarily, nor does it establish citizenship. But the same argument could be made about a valid passport 

as well, sir, and that a valid passport is, in and of itself, not necessarily an answer to the fundamental question of whether an individual was entitled to work. 

You cited in your example to Mr. Benitez the fact that an expired 

passport may not tell you whether an individual served in the 

armed forces of another country and thereby waived his right to a 

claim of U.S. citizenship. But I would assert neither does a valid 

passport. John Walker Lindh has a valid U.S. passport. Presumably, John Walker Lindh, under the example that you cited, might 

not be eligible for employment because of his service in a foreign 

army. 

45

The valid passport in and of itself does not address it, but then, 

again, nor does an expired passport. It is a form of documentation, 

and in the hearings that Congress used to examine what documents to use for this purpose, a valid passport—rather, an expired 

passport, as well as a valid passport, was considered as one form 

of documentation that might be used. It was not the sole form of 

documentation. It had to be corroborated with other documents. 

And for some—— Mr. BARR. No. According to this form, it—that once a person presents to the employer an expired passport, that employer cannot— cannot—ask for any further documentation. They have to accept 

that. 

Mr. HENDERSON. Well, I guess I would only say this, sir: Again, 

we have had now 15 years of enforcement of employer sanctions. 

Presumably, there is a body of data which analyzes and demonstrates the level of document fraud based on the use of expired 

passports. A determination, an ex post factor determination, of 

whether this kind of document and the resulting fraud that may 

have, you know, flowed from its use would determine whether, in 

fact, it creates a major problem. I would think that Mr. Greene and 

the Immigration Service can answer that question. 

But in the absence of documentation that confirms the existence 

of a major problem, I would think that giving people an opportunity to establish their identity by use of a passport, whether it’s 

a valid passport or an expired passport, may not in and of itself 

be a problem. 

The second question I wanted to speak to was the issue of whether employers should be given the discretion to exercise what you 

termed to be ‘‘common sense’’ in determining whether to accept certain documents. And, again, in no way critical of Mr. Kuczynski, 

I think his example, however, was illustrative of the kind of problem that employers face. 

First of all, I hold Federal law enforcement officials to a fairly 

high standard. The standards of employment that the Federal Government imposes requires that these are individuals with a high 

school diploma, that they meet certain standards of fitness and 

character, that they exercise judgment, that they be given certain 

training in the exercise of their responsibilities. None of those requirements are imposed on an employer. An employer has the ability to be an employer just by virtue of the nature of what he or 

she does. 

Exercising discretion does require certain training and exposure 

to the underlying problems that the individual is intended to enforce. And certainly that standard cannot be held applicable to employers. 

Mr. BARR. But would you presume that employers don’t have 

common sense? 

Mr. HENDERSON. Not at all, but I would not assume that every 

employer meets a universal standard of competence and effectiveness in analyzing documents——

Mr. BARR. But so long as you have Federal laws and effective, 

consistent enforcement of those Federal laws such that the Government has the power to come in and look behind those decisions and 

determine whether or not based on evidence the employer has 

46

acted with discrimination, shouldn’t that be the way the system operates, not to deny the employer, who is all—after all, out there basically trying to make a living, serve the portion of the public that 

they serve through their products or services, and let them just operate within the bounds of common sense. 

Mr. HENDERSON. Well, it’s a reasonable question, Mr. Barr. I 

guess that would have two effects, and I think Congress would 

then be the arbiter of determining whether this was fair. 

First of all, the exercise of discretion in the manner that you’re 

suggesting is likely to increase the level of employment discrimination related to immigration decisions. I don’t think there is any 

doubt that some employers will not use common sense effectively; 

they will not be the, you know, the arbiters of fairness in these circumstances in a reasonable way. So I do think we can anticipate 

that that would result in greater discrimination. 

Secondly——

Mr. BARR. I wouldn’t necessarily agree. I don’t think that giving 

people the opportunity to make good business judgments, knowing 

that there is doing to be swift, effective, and consistent enforcement 

of the law if they do discriminate, would be necessarily something 

I would presume they——

Mr. HENDERSON. Well, I guess the issue, though, is this: whether 

you can achieve equal protection where you don’t establish a universal standard that every employer is required to meet. 

Mr. BARR. But we do. 

Mr. HENDERSON. No, not if you say——

Mr. BARR. I’m not saying that you wouldn’t have a universal 

standard. The standard would allow for the introduction of common 

sense and reasonableness, the same as it allows for the Government to use reasonableness and common sense. 

Mr. HENDERSON. Well, for example, if an employer decides that 

because I am an African American that perhaps just because of my 

appearance I might be an American citizen or I might be a foreign 

national, I happen to live in a community in which Haitian nationals reside, I’m from Miami, Haitians are in Miami, I apply for a 

job, an employer makes a decision that because of my skin color, 

because of who I am or the nature of his or her industry, they want 

additional documentation from me that they may not ask from you, 

for the same nature of the job. 

Now, you know, equal protection does require that there be some 

sort of, you know, universal standard or balance. If an employer 

says, well, wait, I’m only exercising discretion and judgment here, 

you know, you come to the job, I’m trying to make certain that 

you’re not a foreign national, he exercises his judgment. 

Now, in the event that I am lawfully authorized to work, this 

employer has violated the statute. And you can do two things: you 

can indemnify him from any additional penalties that might result 

from his discrimination against me, but at the same time, you’ve 

got a question of how do you make me whole. How do you avoid 

the pitfalls in the employment context that readily exist in the law 

enforcement context? Racial and ethnic profiling, as you know, sir, 

are a routine part of the existing law enforcement decision making. 

I am fearful that if you open up the door to the exercise of discreVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
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tion from employers, you’re giving license to the ability of employers to use precisely those techniques. 

Mr. BARR. Aren’t we—if one presumes that the power would be 

abused, aren’t we now by statute and by practice and policy, as I 

have read directly from the work site enforcement policies, giving 

that same discretion and ability to discriminate or profile to the 

Government? 

Mr. HENDERSON. Well, the Government, you know——

Mr. BARR. Is the Government in a better position, with the ability to put somebody in jail and take their liberty away, to exercise 

that discrimination——

Mr. HENDERSON. No, I think—I think the underlying structure 

of the enforcement mechanism here is out of whack. But I don’t believe that the solution is to transfer additional responsibility to employers who have no training, no expertise, and are already given 

an enormous responsibility——

Mr. BARR. They might tremendous expertise. 

Mr. HENDERSON. Well——

Mr. BARR. I mean, they see a lot of people. They’ve seen a lot of 

false documentation. They may be in a much better position to do 

that. 

Mr. GEKAS. The time of the gentleman has expired, and expired 

and expired. 

Mr. CONYERS. Mr. Chairman? Mr. Chairman? 

Mr. GEKAS. For what purpose does the gentleman seek recognition? 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent for 30 additional seconds. 

Mr. GEKAS. To be granted to whom? 

Mr. CONYERS. To one of the more favorable Members of the Judiciary Committee so——

Mr. GEKAS. I’m not speaking. I’m not going to be—— [Laughter.] 

The gentleman is recognized. 

Mr. CONYERS. I thank the Chairman. 

I think that the Committee should take cognizance of the fact 

that our friend from the Civil Rights Division is making his first 

appearance before Congress in testimony, and I don’t know whether to tell him that things are going to get better from this kind of 

hearing or whether they’re going to get worse. It probably depends 

a lot upon you, sir. 

But one thing—and knowing that you are new to your position, 

I would like to disabuse you of the statement that you made here 

at this Committee that Congress wouldn’t enact anything that 

doesn’t make sense. [Laughter.] 

Would you please take that under advisement in your future appearances before any Committee? 

Mr. BENITEZ. I will take it under advisement. 

Mr. CONYERS. Thank you very much. 

Mr. GEKAS. We thank the witnesses for their candid presentations as part of the testimony for this hearing. We suggest that 

Mr. Barr and Mr. Conyers and other Members of the Committee 

review the atmosphere that was created by the questions and answers in this hearing and perhaps revisit the entire panoply of proVerDate Jan 17 2002 12:21 Jun 06, 2002 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\032102\78340.000 HJUD1 PsN: 78340
48

visions and case law that has flowed from that. And we in that way 

can assure you that this issue is ongoing. 

But with the thanks of the Committee, we now declare this meeting closed, and we adjourn the Committee. 

[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.] 

(49)

A P P E N D I X 

STATEMENTS SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

In 1986, my colleague from Massachusetts, Mr. Frank, and I warned that the employer sanctions that were being legislated in the Immigration Reform and Control 

Act of 1986 (IRCA) would lead to widespread use of fraudulent documents and 

would result in much more discrimination against immigrants seeking employment 

in the U.S. Mr. Frank helped to mitigate this problem by offering the amendment 

that created the Office of Special Counsel (OSC) to prevent and prosecute employment discrimination against immigrants. 

In the years since passage of the IRCA, we have seen substantial increases in discrimination just as we predicted. With decreasing and insufficient funding the OSC 

has consistently done extremely important work by informing employees of their 

rights under the statute, advising employers on how to avoid violating the statute, 

helping to obtain important settlements for the individuals who have been victims 

of discrimination under the statute, and prosecuting discriminatory employers who 

were unwilling to settle or adhere to the law. 

While the OSC budget has decreased recently, the need for their efforts has increased as immigrant populations have expanded to communities across the country 

that previously had small and insular immigrant populations. I have no doubt that 

addressing employment discrimination is critically important to members of the 

Arab and Latino populations that have grown considerably in my district and the 

Detroit area since this legislation was passed. 

Yet, the OSC is barely able to address the problem of discrimination in hiring and 

firing at all. The statute exempts most cases of discrimination on national origin or 

citizenship against immigrants so that it only applies to and protects a small and 

narrow class of victims. Though some 900,000 employers admitted to the General 

Accounting Office that they engaged in behaviors amounting to illegal discrimination under IRCA, OSC is able to settle and prosecute only about 50 cases a year 

with their insufficient budget and staff. We have not enabled them to fulfill their 

mandate—but their efforts do at least scratch the surface and address the claims 

of some victims. 

It is evident from the facts and the testimony that we will hear today that the 

OSC needs sufficient funding to tackle this important problem with the force and 

breadth that are needed. It remains the only office within the Department of Justice 

that is addressing this increasingly important and widespread problem. If employer 

sanctions are not working, we should strengthen them with a program that ensures 

that compliance with the anti-discrimination laws truly occurs.

50

MATERIAL SUBMITTED FOR THE HEARING RECORD


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