U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

55–520 PDF 2010

S. HRG. 111–337 

ENSURING A LEGAL WORKFORCE: WHAT 

CHANGES SHOULD BE MADE TO OUR CURRENT 

EMPLOYMENT VERIFICATION SYSTEM? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, REFUGEES 

AND BORDER SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 21, 2009 

Serial No. J–111–36 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND BORDER SECURITY

CHARLES E. SCHUMER, New York, Chairman 

PATRICK J. LEAHY, Vermont 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AL FRANKEN, Minnesota 

JOHN CORNYN, Texas 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

STEPHANIE MARTY, Democratic Chief Counsel 

MATTHEW L. JOHNSON, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 5 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 8 

prepared statement .......................................................................................... 115 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 1 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 7 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 7 

WITNESS 

Aytes, Michael, Acting Director, U.S. Citizenship and Immigration Services, 

Washington, D.C. ................................................................................................. 12 

Gutierrez, Hon. Luis, a Representatives in Congress from the State of Illinois 9 

Melmed, Lynden, former Chief Counsel for USCIS, Berry Appleman & 

Leiden, LLP, Washington, D.C. .......................................................................... 16 

Ziglar, James, Senior Fellow, Migration Policy Institute, Washington, D.C. ..... 14 

QUESTIONS AND ANSWERS 

Responses of Michael Aytes to questions submitted by Senators Feingold 

and Cornyn ........................................................................................................... 27 

Responses of Lynden Melmed to questions submitted by Senator Cornyn ........ 39 

Responses of James Ziglar to questions submitted by Senator Cornyn .............. 42 

SUBMISSIONS FOR THE RECORD 

Amador, Angelo I., Executive Director of Immigration Policy, Chamber of 

Commerce, Washington, D.C.: 

Statement .......................................................................................................... 45 

Electronic Employment Verification System Report, April 2, 2009 ............. 61 

Aytes, Michael, Acting Director, U.S. Citizenship and Immigration Services, 

Washington, D.C., statement .............................................................................. 88 

Calabrese, Christopher, Counsel, Technology & Liberty Project, American 

Civil Liberties Union, Washington, D.C., statement ......................................... 96 

Construction Industry, on behalf of American Subcontractors Association, 

Associated Builders and Contractors, Independent Electrical Contractors 

Independent Electrical Contractors, Mason Contractors Association of 

America, National Association of Home Builders, National Roofing Contractors Association, joint statement ........................................................................ 108 

Gutierrez, Hon. Luis, a Representative in Congress from the State of Illinois, 

statement .............................................................................................................. 117 

Horn, Stephen, Chief Legal Officer, Dunkin’ Brands, Inc., Canton, Massachusetts, statement .................................................................................................... 121 

Human Resource Initiative on behalf of the Society for Human Resource 

Management, American Council on International Personnel, Food marketing Institute, HR Policy Association, International Public Management 

Association for Human Resources, and National Association of Manufacturers, Alexandria, Virginia, statement .................................................................. 124 

Kephart, Janice L., National Security Policy Director, Center for Immigration 

Studies, Washington, D.C., statement ................................................................ 129 

Melmed, Lynden, former Chief Counsel for USCIS, Berry Appleman & 

Leiden, LLP, Washington, D.C., statement ....................................................... 140 

Niotti-Soltesz, John, Chairman & Chief Executive Officer, Zerco Systems 

International, Inc., Brookfield, Ohio, statement ................................................ 145 

Page

IV 

Ziglar, James, Senior Fellow, Migration Policy Institute, Washington, D.C., 

statement .............................................................................................................. 151 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, lists: 

Pattinson, Neville, Vice President Government Affairs, Gemalto, Inc., Arlington, Virginia, 

Gemalto e-Government 2.0: Identification, Security and Trust, Exploring 

European Avenues Report, September 2007 

Gemalto e-Government 2.0: The keys to success, choosing and building 

the pathway to success; best practices and success factors, June 2009 

(1) 

ENSURING A LEGAL WORKFORCE: WHAT 

CHANGES SHOULD BE MADE TO OUR CURRENT EMPLOYMENT VERIFICATION SYSTEM? 

TUESDAY, JULY 21, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON IMMIGRATION, REFUGEES

AND BORDER SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:30 p.m., Room 226, 

Dirksen Senate Office Building, Hon. Charles E. Schumer, Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Whitehouse, Sessions, and Cornyn. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK, CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND BORDER SECURITY 

Chairman SCHUMER. Okay. The hearing will come to order. 

We’ll allow each of the members here to make an opening statement and then we’ll turn to Congressman Gutierrez. We’re honored 

you’ve come across the Capitol Building to be here with us. 

Well, about a month ago, I articulated principles for immigration 

reform that I believe can pass through Congress with bipartisan 

support. Each of the principles was based on a fundamental notion 

that the American people are both pro-legal immigration and antiillegal immigration. The American people will not accept any legalization of those currently in the United States illegally unless and 

until they’re convinced that the government is very seriously committed to preventing future waves of illegal immigration. 

That’s why I previously said that any comprehensive immigration reform bill must achieve operational control of our borders and 

our ports of entry within 1 year of enactment. But in order to completely prevent future waves of illegal immigration we must recognize that, no matter what we do on the border and at our ports, 

jobs are what draw illegal immigrants to the United States. When 

an immigrant has the choice between making $1 per day in Oaxaca 

Province or making $40 per day in the United States, one cannot 

expect the immigrant to remain in Oaxaca and subject their family 

to extreme deprivation. 

We can only prevent illegal immigrants from working in the 

United States if we create a tough, fair, and effective employment 

2 

verification system that holds employers accountable for knowingly 

hiring illegal workers. In the past, our employment verification 

laws have placed employers between a rock and a hard place. Employers have been required to make subjective determinations 

about identity documents provided by employees in order to determine whether the employee is legally able to work in the United 

States. 

Employers who accept all credible documents in good faith may 

still be targeted by ICE for turning a blind eye towards illegal immigrants in their workplace. Furthermore, when employers have to 

make on-the-spot subjective decisions about who is qualified to 

work and who is not, they can face potential lawsuits from employees who are actually U.S. citizens but who were wrongfully profiled 

as illegal immigrants. 

Employment verification systems that require employers to make 

subjective determinations about an employee’s identity or legal status are bound to fail. So we must instead adopt a system that relies upon a non-forgeable identification system to completely and 

accurately identify legal workers. The system must be nonforgeable and airtight. This is the only way, in my opinion, to stop 

future waves of illegal immigration. 

Attempts in the past to create employment verification systems 

have been half-hearted and flawed. The current E-Verify system is 

an example of a half-hearted and flawed system. Under the current 

E-Verify system, an employer merely verifies whether the name, 

date of birth, Social Security number, and citizenship status given 

by a potential employee match the exact same information contained in the Social Security Administration’s data base, along with 

other government data bases. 

The E-Verify system does not prevent an illegal immigrant from 

using the name, accurate Social Security number, and address of 

a U.S. citizen to get a job. For instance, if an illegal immigrant 

wants to say that he is John Smith, who is actually a U.S. citizen 

from Buffalo, and he knows John Smith’s Social Security number 

and he can get a fake ID with John Smith’s address—all very easily accomplished—nothing about E-Verify will stop that illegal immigrant from getting a job. 

In addition, E-Verify does not prevent U.S. citizens from voluntarily providing their name, Social Security number, and address 

to their illegal immigrant friends, families, or employees in order 

to game the system. That is why it’s not surprising that many of 

the companies which have been raided by ICE in the last few years 

for employing illegal immigrants have actually used the E-Verify 

system. 

Simply put, it’s not difficult for illegal workers to scam the system by providing the personal information of a legal worker. The 

only way the American people will have faith that our comprehensive immigration reform bill will stop illegal workers from obtaining jobs is if we implement an employment verification system that 

is tough, fair, easy to use, and effective and which relies on a nonforgeable biometric identifier. 

A truly effective employment verification system must possess 

the following 10 characteristics in order to prevent employers from 

hiring illegal workers and to be accepted by the American public: 

3 

First, any new system must rely upon employers to check the immigration status of their employees against a government 

verification system. This is the simplest and most effective way to 

stop the flow of future illegal immigrants. Any system which relies 

upon employers to check the immigration status of their employees, 

however, must give employers clear guidance, rapid response, and 

must be inexpensive and easy to use. 

Second, the system must authenticate the employee’s identity by 

using a specific and unique biometric identifier. This identifier 

could be a fingerprint, an enhanced biometric picture, or other 

mechanism. If fraud is rampant or even permissible, the system 

can’t work and will necessarily fail. No employment verification 

system will be worthwhile if it cannot stop illegal workers from obtaining employment simply by presenting the Social Security number or address of a legal worker, and that’s the main flaw of the 

E-Verify system. 

Proposals to give legal workers PIN numbers or other security 

codes that they can use to authenticate their identity with the employer will similarly not stop illegal workers from gaining such PIN 

numbers and providing this information to their employer in order 

to obtain employment, but it’s virtually impossible for an illegal 

worker to forge a fingerprint or an enhanced biometric picture. 

That’s why it’s critical that any future employment verification 

system require employees to prove their identity through their 

unique biometric features rather than by requiring workers to provide Social Security numbers or PIN numbers to an employer, who 

then enters the information into the system. It’s the only effective 

way to combat future waves of illegal immigration. 

Third, the system must apply to all people, citizens and non-citizens alike. The only way to prevent fraud is to make sure that everyone is uniformly in the system. By creating a uniform system, 

illegal workers will no longer be able to use the name and Social 

Security number of U.S. citizens in order to obtain a job. 

Everyone will verify their identity and their immigration status 

in the same way and there will be no ability for people claiming 

to be U.S. citizens to go through a system that requires less proof 

of identity than a non-U.S. citizen. Illegal workers have used this 

disparity for years in order to obtain employment. 

In addition, a uniform system will have the advantage of removing potential invidious discrimination that immigrant workers currently face from employers who must make subjective determinations about their employees’ citizenship. And, either by design or 

not, all too often the way the employee looks, their last name, is 

used by the employer to separate legal from illegal, and that’s a 

very bad and un-American way to do things. 

Fourth, the system must be easy to use for both employers and 

employees, must not be expensive, and must quickly give an employer an answer as to whether the employee can be legally hired. 

All businesses, but especially small businesses, should be able to 

implement this new system of employment verification with minimal costs of compliance. No business should be financially or 

logistically burdened by a new employment verification system. 

The system should not impede employers from hiring legal workers 

or prevent legal workers from obtaining employment. 

4 

Fifth, the system should exonerate employers of any and all potential liability if they use the system and the system says that a 

worker is legal. A clear advantage of a biometric-based system is 

it would tell employers instantly and definitively whether their employee has legal status. If the system does tell the employer that 

his employee is authorized to work, the employer should never 

have to pay any fines if that employee turns out to be unauthorized. 

Sixth, on the other hand, the system should severely punish employers who fail to use the system or who knowingly hire illegal 

workers after using the system by levying stiff fines for initial offenses, unpalatable fines for secondary offenses, and prison sentences for repeat offenders. Employers should know that if they fail 

to use the system or use the system and hire a known unauthorized employee, they’ll be audited and will be caught and severely 

punished. 

Seventh, the system should not require American workers to pay 

any money to the government in order to obtain employment. Although a new employment verification system will have costs, these 

costs can be covered by fees and fines charged to those seeking legalization and through fees charged to future immigrants, who will 

gladly pay these fees to live and work in the U.S. By creating a 

uniform employment verification system, the fees that immigrants 

currently pay for work permits can be used to pay for the creation 

and implementation of the new system that future immigrants and 

citizens will jointly use. 

Eighth, significant and substantial protections must exist to ensure the system does not prevent Americans from working. Among 

other things, workers must be permitted to legally keep their jobs 

while correcting any potential problems in the system, and employers will be prohibited from firing any employees while they’re lawfully trying to rectify their status with any new system. As a corollary, employers must not be punished for allowing employees to 

work while their employees are legally attempting to correct any 

technical problems that prevent the employee from being authorized. 

Ninth, any new biometric-based employment system must have 

extensive checks at the beginning of the system to prevent illegal 

aliens from creating a false identity to enter into the new data 

base. And, as I mentioned before, we need to do this where the entity administering the new employment verification system will 

have access to public records/government data bases to ensure that 

the person seeking to enter the new employment verification system is, in fact, the person they claim to be and the person has legal 

status. 

Finally, tenth, the system must have the strictest privacy and 

civil liberty protections and must only be used for employment. The 

American people must have confidence the only goal of an employment verification system is to prevent future waves of illegal immigration, which will raise American wages and working conditions. 

The government should be prevented from using any employment 

verification data for any other purpose, and strict fines and prison 

sentences should be levied to all persons who use the system for 

any purpose not permitted by law. 

5 

All of these characteristics are based upon the fundamental principal that the goal of an employment verification system must be 

to change the calculation currently made by employers in order to 

make it extremely unattractive for employers to hire illegal workers. A system with these 10 characteristics will be easier to use, 

less discriminatory, tougher, and more effective than the current EVerify. A biometric system will be supported by business groups because it will be easier to use than the current system and will provide employers with clear safe harbors. 

A biometric-based system will also be supported by labor and immigrant groups because it will take away the employer’s ability to 

make subjective determination about an employee’s legal status 

simply by looking at documents and determining their validity, 

which has previously invited invidious discrimination against immigrants and retaliation against union organizers. 

In conclusion, we have several distinguished witnesses here to 

discuss how the current E-Verify system operates, the ways in 

which a new system can be created that adds a biometric identifier, 

and I look forward with great interest to their testimony. 

I now want to recognize the distinguished Ranking Member, Senator Cornyn, for an opening statement. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

I want to express my appreciation to all of the panelists who are 

joining us today. Congressman Gutierrez, it’s good to have you 

here. 

I also want to acknowledge Lynden Melmed, who’s worked closely with my office in the past, and the subcommittee as well, on 

these issues and now is in private law practice. I look forward to 

hearing the views of all of our panelists with regard to how we can 

improve the E-Verify system. 

I agree with Senator Schumer, the E-Verify system is broken and 

we must act to fix it. In 1986, Congress clearly recognized that employers should verify that the workers they hire are eligible for employment or face strong sanctions if they wilfully evade our labor 

laws, but Congress did not provide the tools to employers needed 

to carry out those mandates. 

So today, 20 years later, the problem remains: our laws are not 

enforced, our employers are frustrated, and the people are cynical 

of the government’s will to act. We have, however, made some improvements in enforcement and employment verification over the 

past few years. The Department of Homeland Security’s E-Verify 

program has great promise and I think is headed in the right direction, but the program needs expanded legal authorities, additional 

resources, and other improvements before we can begin to hope 

that it will meet its aspirations. 

Like many of my colleagues, I support an effective employment 

verification system. An effective system must be reliable, accurate, 

and not unduly burdensome to small businesses. An effective system must include a secure, tamper-proof card that is easily 

verifiable and gives employers surety when it comes to an individual’s identity and authorization to work in the United States. 

6 

I see three challenges. Most everyone agrees we need to improve 

our employment verification system, but the first challenge relates 

to the mechanics of employment verification. In other words, how 

will employment verification work in practice? We must ensure 

that any process will be user-friendly to both the employer and the 

employee. 

Would the individual simply swipe a card through a card-reader 

or would they have to get online somehow? What would a secure 

card look like, and what types of biometric data would be available 

on it? Would the employer and the employee get a real-time response in a matter of seconds or would they have to wait days for 

an answer? Would the employee have a simple process to correct 

any inaccuracies in the agency data bases? An effective system 

must get all these questions right to earn the confidence of both 

workers and employers. 

The second challenge relates to costs. How much will it cost taxpayers to get an effective E-Verify program up and running? Last 

year, U.S. Citizen and Immigration Services estimated a mandatory E-Verify program could cost about $765 million over 4 years, 

and that’s only if it covers new hires. To cover both new hires and 

current hires, that number rises to $838 million. The Social Security Administration also estimated that a mandatory E-Verify program would cost about $281 million over 5 years and require 700 

new employees. These costs are significant and highlight that if we 

do not resource our E-Verify program adequately, our workers and 

employers will become frustrated and they’ll never buy into the 

system. 

On the other hand, if we give the agencies the resources they 

need in order to get the job done right, that can help turn around 

public perception, and E-Verify can help restore lost confidence in 

government when it comes to enforcing our immigration laws. 

Our third challenge relates to identity theft. In other words, how 

can we improve information sharing among all levels of government to deter identity theft before it happens and prosecute the 

bad actors when deterrence doesn’t work. 

Technology is clearly the key. We must create interconnectivity 

between the data bases maintained by various agencies, including 

the State Department, the Social Security Administration, the Internal Revenue Service, and the Bureaus of Vital Statistics in 

every State. And as we improve this connectivity, we must ensure 

that we minimize errors and inaccuracies and balance the lawful 

disclosure of information with the individual’s right to privacy. 

So, Mr. Chairman, I want to express my gratitude to you for focusing our discussion on the important component of employment 

verification in solving our broken immigration system. We have got 

to get this effort right in order to have a crack at any larger reform 

effort. The American public will not bestow their faith upon us if 

we pass immigration reform without an effective, accurate, and enforceable employment verification program. 

I look forward to hearing the witnesses’ perspectives on this 

issue and the concrete solutions that I know each of you will bring 

to the challenges that confront us. 

Thank you, Mr. Chairman. 

Chairman SCHUMER. Senator Whitehouse. 

7 

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Mr. Chairman. I don’t have an 

opening statement. I just, as somebody who was witness to the 

acrid tone and the ugly thoughts and words that accompanied the 

melt-down of our recent immigration reform effort, I just want to 

observe that it takes a bold legislator to want to go back into that 

blasted wasteland, and I’m delighted that you are doing it. I am 

proud that you are doing it. 

I applaud the bipartisan tone that I have detected. There was a 

lot of overlap between the statements of the Chairman and the 

Ranking Member, and I think this is important work to get done. 

I also understand that one of our witnesses, the Republican witness, is a former staffer to Senator Cornyn, and also a graduate of 

the University of Virginia Law School. So, things are just getting 

better and better, and I really appreciate what you two are doing. 

Chairman SCHUMER. Thank you for those nice words, Senator 

Whitehouse. 

Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

ALABAMA 

Senator SESSIONS. Thank you, Chairman Schumer. It is, indeed, 

a challenge. But one thing I’m absolutely convinced of, that we can 

create a lawful immigration system that we can be proud of. After 

initially thinking the second proposal that came forward last year 

was one that might be effective, I studied it and came to believe 

it was not, and the American people agreed with that. 

So I think you’re raising some important questions. E-Verify is 

not strong enough. I think it’s a good system. I’m baffled that people would not want to use it or that would oppose it as it is, because it’s free and quick and works in a number of instances. I 

agree with you, a more comprehensive identification matter is important, Mr. Chairman. 

I know Senator Kyl worked on that in-depth. He was the master 

of all the details of that, and I shared that view. But it’s the kind 

of thing that’s not easy. We’ve got people on the left that don’t 

want a card, people on the right that don’t want a card, then you’ve 

got people that really like the illegal immigration occurring and 

they don’t want a card. So it’s not a little, easy thing to do, but 

your leadership might make a difference. So let’s see what we can’t 

do to go forward and develop a system that can actually work. But 

count me a skeptic. I’ve got to be, show me how this is going to 

actually work. I think that’s where the American people are, but 

maybe we can do some good this time. 

Thank you. 

Chairman SCHUMER. Thank you. The only point I’d make here is, 

I believe we need a biometric. It could be a card. That’s one of the 

things we’re looking at. It doesn’t necessarily have to be a card. 

Senator Feingold. 

8 

STATEMENT OF HON. RUSS FEINGOLD, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I’m glad that the 

Committee is taking up this issue. I want to say, too, how much 

I appreciate that you are working tirelessly to draw attention to a 

number of changes we need to make the current employment 

verification system, E-Verify, a better system, and I applaud your 

efforts. 

I’ve been concerned about recent efforts to make E-Verify mandatory and to expand its use to federal contractors without first fixing 

problems with the system. Employment verification is a very promising idea and it has tremendous potential to ensure that U.S. jobs 

only go to U.S. citizens and those who are legally authorized to 

work in the U.S., but we need to get it right before we expand our 

reliance on electronic verification. 

Our current system, E-Verify, remains riddled with errors and 

other inaccuracies. According to a 2006 report of the Social Security 

Administration’s Inspector General, the data set on which E-Verify 

relied contains errors in 17.8 million records, affecting 12.7 million 

U.S. citizens. If E-Verify becomes mandatory before these errors 

are fixed, millions of Americans could be misidentified as unauthorized to work, and I think that is an unacceptable result. 

I understand that U.S. Citizenship and Immigration Services has 

been working to improve the accuracy of E-Verify, but we still have 

a long way to go. According to recent reports, if E-Verify becomes 

mandatory for all U.S. employers, roughly 600,000 workers, most 

of whom are U.S. citizens, would be deemed ineligible to work, and 

that is a very large number. It’s equal to the entire population of 

the largest city in my State, Milwaukee. I recognize that no employment verification system will be completely error-free, but that 

kind of error rate, in my opinion, makes this system unworkable. 

In 2008, Intel Corporation, a very large employer, reported that 

12 percent of the workers that they ran through E-Verify came up 

as ‘‘tentatively non-confirmed.’’ All of these workers were eventually cleared as work-authorized, but Intel had to invest significant 

time and money to correct these errors, which is something that 

many smaller businesses would be unwilling or unable to do for 

their staff. 

I am particularly concerned about these error reports because almost half of all businesses that use E-Verify report that they use 

E-Verify to pre-screen job applicants. This means that employers 

are making hiring decisions based on erroneous information and 

they are never notifying applicants of this information so the applicants can contest and correct it. 

Any permanent mandatory employment verification system must 

contain sufficient procedural protections for workers who are initially deemed unauthorized to work. Workers must be given a simple, straightforward means to appeal any data errors. Employer 

verification proposals should also contain sufficient provisions to 

ensure that any personally identifiable information that is collected 

by the government is kept completely confidential. We must be 

very careful to establish safe, secure systems that will protect the 

electronic transmission of any personal information. 

9 

Mr. Chairman, I strongly believe that we need to secure our borders, we need to fix our broken immigration laws, and we need to 

deal with the fact that there are millions of undocumented individuals in this country, and we need to do it now. But we also need 

to be very conscious that thousands of American citizens and legal 

immigrants could lose their jobs if we mandate the use of an electronic verification system before these errors are fixed. This would 

cause massive disruption, not just in the lives of these workers, but 

also to the already fragile U.S. economy. 

I thank you, Mr. Chairman, for the chance to make those remarks. 

Chairman SCHUMER. Well, I thank you for your thoughtful remarks. Some of the principles we enunciated would, in a broad 

brush, address those. Obviously the devil is in the details in getting 

them all done, but I agree with your comments, the thrust of your 

comments, completely. 

It’s now our honor—and he’s waited patiently—to introduce the 

Honorable Luis Gutierrez. He represents the Illinois Fourth District. He’s done that with great distinction for eight terms, 16 

years. We served in the House together, I’m honored to say, and 

were friends there. Until this year when I left the Senate gym, we 

spent a lot of time in the House gym talking about things together. 

Luis Gutierrez is the first Latino to be elected to Congress from 

the Middle West. He serves as chair of the Democratic Caucus Immigration Task Force and as chair of the Congressional Hispanic 

Caucus Immigration Task Force. He was named to the Judiciary 

Committee in the 110th Congress, and he’s remained there, serving 

on the Immigration Subcommittee. 

He chairs the Financial Services Subcommittee on Financial Institutions and Consumer Credit. Along with Congressman Jeff 

Flake of Arizona, he co-sponsored bipartisan immigration reform in 

2007 known as the STRIVE Act, which called for, among other 

things, a biometric-based system of employment verification. I just 

want to say this: Congressman Gutierrez has traveled the country—he’s a national figure—in his passion that we do immigration 

reform. I don’t think there’s a member of the Congress who cares 

more about it or has spent more time about it than Congressman 

Gutierrez, and we really appreciate that. 

Your entire statement will be read into the record, and you may 

proceed. 

STATEMENT OF HON. LUIS GUTIERREZ, A U.S. 

REPRESENTATIVE FROM THE STATE ILLINOIS 

Representative GUTIERREZ. Thank you. Chairman Schumer, 

Ranking Member Cornyn, and members of the subcommittee, 

thank you for this opportunity to testify on employment 

verification. 

I first want to commend you, Mr. Chairman, for holding this 

hearing and for your steadfast leadership on this issue, and for 

what I consider very creative approaches to developing employment 

verification systems as a means to reduce future waves of illegal 

immigration. 

I want to share with you that it’s not just my years of work on 

this issue that brings me here to testify before you today, it is the 

10 

countless men and women I have met across this country who have 

been exploited in the absence of a system that holds employers accountable for their actions. 

It is because of the mothers who toil in sweat shops in New York 

and Los Angeles to feed their children. It is because of 16-year-old 

boys who I met in Iowa who work 17-hour shifts six days a week 

without overtime on the kill floor of a meat-packing plant. It is because of U.S. workers who have tried, time and time again, American citizens, to unionize their shop and failed to do so because 

there is the availability of an exploitable workforce. It is for the 

women who face demands of sex in exchange for decent wages, decent hours, and decent working conditions, and it’s for all those 

small business owners who have been unable to get ahead of the 

competition because he or she plays by the rules, when corrupt employers down the street choose not to. 

As you know, Mr. Chairman, the obligation to protect good workers and decent employers are the driving force behind the need not 

only to overhaul our employment verification system, but also to 

initiate real, lasting, comprehensive immigration reform. In fact, 

any employment verification system must be part of comprehensive 

immigration reform. 

To ensure a legal workforce, the system must implement smarter 

border security, establish a program to fill true gaps in our workforce, keep families together, and require—require—the estimated 

12 million unauthorized individuals currently living and working in 

the U.S. to register and fully integrate into our society. 

I know some in Congress believe that a mandatory employment 

verification system alone would fix our broken immigration system 

by encouraging undocumented immigrants to self-deport. However, 

like it or not, we’ve come to depend on the contribution of these 

hard-working immigrants and they have become an integral part 

of our families, of our communities, and of our workforce. 

Moreover, it would arbitrarily separate families and punish 4 

million U.S. citizen children who have undocumented parents. I assure you that the separation of families is not needed to build support for comprehensive immigration reform; polls have shown again 

and again the vast majority of Americans already do. However, the 

American people do want Washington to lead and develop workable 

solutions within comprehensive immigration reform that will end 

illegal immigration as we know it. 

So let me be clear: the end of illegal immigration is only possible 

through effective employment verification as a part of comprehensive immigration reform. Effective employment verification must 

maintain and provide accurate data; be rolled out prudently under 

a realistic time line as its accuracy and privacy protections are established; allow workers to review and correct their own employment eligibility record and have access to administrative and judicial review; protect individuals from discrimination; be paired with 

robust oversight and enforcement, including random audits with 

employers. 

With regard to a biometric system that Chairman Schumer is 

currently exploring, I regard the following as advantages over the 

current system we have. It would provide workers greater power 

over their employment records. It would prevent prescreening and 

11 

other misuses of the system by requiring employee consent. The 

swipe of a card, along with a fingerprint, would prevent individuals 

from inventing an identity and assuming another identity to get a 

job. 

As Congress examines biometrics as part of a new and better 

system, I want to encourage you to ignore the naysayers, those who 

claim it cannot be done. Don’t listen to them: they do not speak for 

real change or workable solutions or an end to illegal immigration 

as we know it. Rather, they want to produce gridlock, prevent action, and protect the status quo. 

Let me repeat: incorporating an effective employment verification 

system is the only hope for truly ending illegal immigration. We 

can do this, and we must do this, this year. In the end, this is not 

a question of whether or not we can craft an effective system, rather, it is a question of political will. 

I am grateful to all of you for allowing me to come and testify 

here this afternoon. I want to say to my dear friend Chairman 

Schumer, millions of people are counting on you and relying on you 

and your leadership and your commitment to comprehensive immigration reform, and I hope that the bond that Senator Kennedy 

and Senator McCain were able to have in the past Congresses is 

the same kind of bond that you and Senator Cornyn are going to 

be able to develop on this very important issue. 

Thank you so much. 

[The prepared statement of Representative Gutierrez appears as 

a submission for the record.] 

Chairman SCHUMER. Well, I want to thank you, Luis Gutierrez. 

You are an inspiration in terms of all you have done, and your passion, but also your intelligence and your practicality, realizing how 

we can get this done. There are lots of people on both sides of the 

aisle who would like to sort of make a lot of speeches, but are unwilling to put their nose to the grindstone and get it done. If we 

listen to your remarks, Senator Cornyn’s remarks, my remarks, 

you can see that, yes, we can. Yes, we can do this. 

I know you have another place to go. Well, we all did our opening 

statements. I want to thank you very much for being here. 

Representative GUTIERREZ. Thank you so much. Thank you so 

much, Senators. 

Chairman SCHUMER. Okay. 

We’ll now begin our second panel. Let me introduce them as they 

come forward. Okay. While people are getting seated, I’m going to 

do the introductions so we can proceed. 

On the left side—on our left, your right, audience—of the panel 

is Michael Aytes. He serves as Acting Director of the U.S. Citizenship and Immigration Services, USCIS, within the Department of 

Homeland Security, DHS. He was named to this position in April 

2008. Prior to his appointment, Mr. Aytes served as Associate Director of U.S. CIS Domestic Operations, where he was responsible 

for processing all immigration benefits and services within the U.S. 

Mr. Aytes has served in a variety of positions, with the former INS 

service, beginning his Federal career at INS in 1977. The Committee thanks him for taking the time to testify and for his years 

of service to this great country. 

12 

James Ziglar is Senior Fellow at the Migration Policy Institute. 

In addition, he serves as senior counsel at the Washington law 

firm, VanNess Feldman. Mr. Ziglar retired in 2008 as president 

and chief executive officer of Crossmatch Technologies, a leading 

provider of biometric technologies to the Federal Government. Before joining Crossmatch in August 2005, Mr. Ziglar was managing 

director and chief business strategist at UBS Financial Services. 

From August 2001 until his retirement from the Federal service 

in December of 2002, Mr. Ziglar served the last Commissioner of 

the Immigration and Naturalization Service. In addition to his position as Commissioner of the INS, Mr. Ziglar served as sergeantat-arms of the U.S. Senate—we’re proud to see an alumnus do so 

well—and as Assistant Secretary of Interior for Water and Science. 

The final witness. Do you want to introduce the final witness, 

Senator Cornyn? Or you can read my statement. 

Senator CORNYN. Your statement is an excellent statement. 

Chairman SCHUMER. We’ll just ask unanimous consent my statement be put in the record, and Senator Cornyn do the introductions 

of Lynden Melmed. 

[The prepared statement of Senator Schumer appears as a submission for the record.] 

Senator CORNYN. Lynden Melmed was assigned to my office as 

a detailee from the Department of Homeland Security. Somebody, 

a rarity, I found, during the debates in the Senate on immigration 

law, who actually knows immigration law and he was an invaluable resource. I’m glad to have him here today to share some insights on the E-Verify program. 

Chairman SCHUMER. Great. 

Senator CORNYN. Thanks. 

Chairman SCHUMER. Thank you, Mr. Melmed, for being here. 

Everyone, all three witnesses’ entire statement will be read into 

the record. We’re going to ask you to try to limit your presentation 

here to 5 minutes, and then we’ll go to questions. 

Mr. Aytes. 

STATEMENT OF MICHAEL AYTES, ACTING DIRECTOR, U.S. 

CITIZENSHIP AND IMMIGRATION SERVICES, WASHINGTON, DC 

Mr. AYTES. Chairman Schumer, Ranking Member Cornyn, Members of the Subcommittee, I’m grateful for the opportunity to appear before you to discuss our shared vision and goal of effective 

employment eligibility verification. 

First, we appreciate the Senate support for the President’s budget request to extend E-Verify for three more years. As you can 

imagine, uncertainty with respect to extension challenges USCIS 

and users of the system. 

E-Verify has grown exponentially over the past several years. 

Over 137,000 employers are now enrolled, representing over 

517,000 hiring locations. It is no longer a niche system. Today, over 

14 percent of all non-agricultural new hires in the United States 

are run through E-Verify. 

E-Verify is sometimes described as a tool to enforce the immigration laws, and it is. Others describe it as a tool for employers committed to maintaining a legal workforce, and it is also that. But we 

recognize the system must also effectively serve employers and 

13 

workers by giving accurate and quick verification. Our goal is to 

continue to improve the system’s ability to instantly verify new 

hires, improve the accuracy of our data, and strengthen employer 

training, monitoring, and compliance functions. At the same time, 

we want to protect workers’ rights. 

Complaints about the system largely fall into three categories: (1) 

that it’s inaccurate and results in erroneous mismatches; (2) that 

it doesn’t, as many of you have mentioned, effectively combat identity theft and document fraud; (3) that the system can result in discrimination. 

I’d like to discuss each briefly in turn. Today, 96.9 percent of 

queries result in an automatic confirmation: the worker is authorized to work. Of the remainder, less than 3.1 percent, about 1 in 

10 is ultimately found to be work-authorized. 

We have worked hard to reduce the initial non-confirmation rate 

for workers who are authorized to work. While we’ve made significant success in this area, we will continue to work on this problem 

but we must also recognize that not every mismatch in any system—today’s system or a future system—can simply be prevented 

by adding data. 

For example, if someone changes their name today through a 

marriage or divorce and updates their driver’s license but does not 

update their Social Security record, it will result in a mismatch. 

Any form of verification must recognize the need for data changes 

such as result from marriage or divorce. 

E-Verify was not initially designed to directly combat identity 

theft, I grant you. It relies on the Form I–9 process in which the 

worker must present an identity document, such as a driver’s license, green card, or passport. But identity theft and document 

fraud are growing issues, not only in the immigration context. Last 

year, as a result, we added a new photo screening tool for DHS documents in order to combat document and identity fraud. 

In the future, we plan to add U.S. passport photos and would 

like to be able to verify individual driver’s license information because that does have a biometric, a photo, all to streamline the 

process and let employers quickly verify that the document presented matches what was actually issued. We are also in the final 

stages of developing an initiative to let individuals who have been 

victims of identity theft lock and unlock their Social Security number for the purpose of E-Verify. 

As I mentioned, about 9 in 10 initial non-confirmations become 

final, most without the worker contesting the initial findings. Some 

highlight the potential for discrimination in that number, suggesting that some of these workers may be work-authorized but 

simply do not know they can contest the finding. 

Any system, I grant you, even with safeguards and compliance 

monitoring such as E-Verify, can be used incorrectly. However, 

take that number in context. Some studies suggest that about 5 

percent of the workforce in the United States is not authorized to 

work in this country. That’s actually higher than the current EVerify final non-confirmation rate of 2.8 percent. 

But the system, any system, must protect the rights of workers. 

Any discrimination reduces the effectiveness of the program. Thus, 

we have expanded our information to workers and are growing a 

14 

new monitoring and compliance branch to ensure that employers 

use E-Verify correctly, including ensuring that workers have access 

to information about redress procedures. 

We have also established a new process that lets workers call 

USCIS directly to address certain mismatches as an alternative to 

visiting a Social Security Administration office. We are also working to refer instances of fraud, discrimination, misuse, and illegal 

or unauthorized use of the system to appropriate enforcement authorities. 

In summary, the program has made great strides in becoming a 

fast, easy, and more accurate tool to help employers and workers. 

It can go farther, but today it works together with the Form I–9 

requirement that requires an employer show an identity document 

to an employer. The Administration is dedicated to continuing to 

work to improve E-Verify to address issues of usability, fraud, and 

discrimination. 

Thank you for the opportunity to testify. Again, we appreciate 

this Subcommittee’s continued support of the E-Verify system. 

Chairman SCHUMER. Thank you, Mr. Aytes. 

[The prepared statement of Mr. Aytes appears as a submission 

for the record.] 

Chairman SCHUMER. Before Mr. Ziglar proceeds, I would note 

that all three of our witnesses, when they were in government, 

were appointed by Republican people, either Republican Presidents 

or Senators. So there! 

[Laughter.] 

Senator CORNYN. They must know what they’re talking about, 

Mr. Chairman. 

Chairman SCHUMER. Mr. Ziglar. 

STATEMENT OF JAMES ZIGLAR, SENIOR FELLOW, MIGRATION 

POLICY INSTITUTE, WASHINGTON, DC 

Mr. ZIGLAR. Mr. Chairman, Ranking Member Cornyn, and Senator Sessions, it is an honor to be here today to participate in the 

E-Verify hearing. If you will allow me a point of personal privilege—my wife said I shouldn’t mention this, but I have to—it was 

45 years ago this week that I showed up in Washington to work 

for the Judiciary Committee. I have to tell you, this room has not 

changed much at all, except that they used to have an air conditioning unit in the corner. For 7 years, I sat back there in the back 

row doing what a lot of you folks are doing. So, it is a particular 

honor and pleasure to be here this particular week. 

Chairman SCHUMER. Who did you first work for? 

Mr. ZIGLAR. Senator Eastland, from Mississippi. 

Chairman SCHUMER. That undoes my theory, doesn’t it? Sort of. 

Not quite. Just somewhat. 

Mr. ZIGLAR. My key job at the time, Senator, was to make sure 

that Senator Eastland had cigars and that Senator Dirksen had 

cigarettes during the hearings. You could smoke in the room at the 

time. 

It is a real pleasure to be here, as I said. I have submitted my 

written testimony that has two documents that I would also like 

to have put into the record, if I could. One of them is an op-ed that 

I co-authorized with Doris Meisner, the Commissioner of INS 

15 

under President Clinton, in the New York Times. The second one 

is a report that was issued yesterday by the Migration Policy Institute that relates to the E-Verify system and has some recommendations in it. 

[The prepared statement of Mr. Ziglar and additional information 

appear as a submission for the record.] 

Mr. ZIGLAR. Mr. Chairman, the E-Verify program and the policies that underlie that program are critical to the effective enforcement of our immigration laws, and that is going to be particularly 

true if we end up having comprehensive immigration reform. 

Going back to 1996, the Congress recognized the need to implement an electronic employment verification system for the purpose 

of enforcing the law that prohibits the hiring of unauthorized workers by American businesses. The 1996 Illegal Immigration and Immigrant Responsibility Act also provided for three test pilot programs to evaluate the effectiveness of an electronic employment 

verification system. Those three programs ended up and culminated into something called the basic pilot, which is now, as we 

know, called the E-Verify system or E-Verify program. 

The USCIS has done a great job, in my opinion, of implementing 

the E-Verify program and they have dramatically improved its performance since it was first launched. However, the program suffers 

from one very important gap in its design, and that is that it cannot authenticate the identity of individuals presenting themselves 

for employment, as the Chairman has very forcefully pointed out. 

The program has been effective in detecting certain fraudulent 

documents, but when presented with legitimate information that 

has been stolen or is otherwise being used for fraudulent purposes, 

it simply cannot readily detect that situation. 

Consequently, identity theft and fraud are actually being encouraged by this gap in the system. The problem is that the system is 

based on verifying biographical data and Social Security numbers 

and does not authenticate the identity of the person presenting 

such information. 

This system, just like the I–9 system that it supplements, also 

puts employers in the untenable position of having to exercise their 

discretion in verifying information and documents presented to 

them. This can lead to unintentional mistakes, or sometimes encourages less than lawful and ethical behavior. 

There is a way to deal with this problem of being unable to authenticate a person’s true identity. Biometrics have been used for 

many years to identify and verify the identity of individuals, primarily in the law enforcement context. However, in the past decade, biometrics have been increasingly deployed in the civilian sector to authenticate and verify personal identity. 

Numerous industries now require employees to provide a biometric, as well as biographic, data for purposes of a background check 

and for identification. Perhaps the best example is the transportation industry, which has developed the TWIC card, which is the 

Transportation Workers Identification Card. This card has a biometric imbedded in it and it is, and will be, used for verification 

and access control. 

Other industries that are adopting or have adopted biometrics for 

identification and verification purposes include financial services— 

16 

which, Mr. Chairman, you know probably better than anybody, 

coming from New York, that if you’re in the financial services industry as I once was, years ago I had to give a biometric and have 

a background check—health care, education, and a number of others. Indeed, the U.S. Government, under HS PD12, requires a biometric, a background check, and a card for employees and contractors. 

Mr. Chairman, if we’re to have comprehensive immigration reform it is critical that we have a system that is effective in dealing 

with the problem of unauthorized workers. The time is right to address the gap in the E-Verify system in the context of immigration 

reform. Biometrics technology continues to improve constantly, but 

the state of the technology today is more than adequate to address 

the problems presented in the E-Verify program. 

As I mentioned in my written statement, I believe that it would 

border on the irresponsible not to undertake a thorough analysis 

of the challenges and costs of adding a biometric module to the EVerify program. I commend your attention to the report issued by 

the Migration Policy Institute yesterday. It suggests three pilot 

programs that would provide a road map for USCIS in expanding 

the E-Verify system to deal with the problem of authentication of 

identity. 

Mr. Chairman, there is a lot more that can be said about this 

issue, but my time has expired. I look forward to your questions. 

Chairman SCHUMER. Mr. Melmed? 

STATEMENT OF LYNDEN MELMED, FORMER CHIEF COUNSEL 

FOR USCIS, BERRY APPLEMAN & LEIDEN, LLP WASHINGTON, 

DC 

Mr. MELMED. Chairman Schumer, Ranking Member Cornyn, 

Senator Sessions, thank you for the opportunity to appear today 

before the subcommittee. 

Congress has wrestled with employment verification for over 20 

years, and rightly so. It is the linchpin of effective immigration enforcement. Comprehensive reform will fail if the next generation of 

employment verification is not fast, accurate and reliable. 

Conventional wisdom says that employers are reluctant participants in the verification process and will only participate in an 

electronic system if forced to do so. The recent increase in enrollment in E-Verify, which is voluntary, suggests otherwise: employers need, and want, the Federal Government to provide them with 

the means to verify the legal status of their workforce. 

E-Verify is a strong foundation for an electronic system. During 

a period when enrollment has increased by over 1,000 employers 

a week, DHS has continued to expand its capabilities and improve 

its accuracy. E-Verify is not without its flaws, including one fundamental problem that other witnesses have mentioned: its inability 

to detect identity theft. 

The government has been creative in responding to that weakness and the photo tool biometric technology now allows an employer to compare the photo presented by the worker with the 

photo stored in the government’s database. The full incorporation 

of U.S. citizen passport, foreign national visa photos, and driver’s 

license photos into the biometric photo tool would go a long way to 

17 

reducing identity theft. Congress should, therefore, give consideration to using E-Verify as a platform and expanding photo tool for 

currently issued documents and/or incorporating a new biometric 

identification document. 

Irrespective of which system Congress mandates, the following 

elements should be included: 

First, there must be simple procedures that eliminate subjective 

decisions by employers. Under current law, a new employee can 

present a combination of 26 different documents: some combinations work, others don’t. Some documents require re-verification, 

some don’t. The DHS Employer Handbook is 55 pages long. Congress must reduce the number of acceptable documents and establish simple bright-line rules that every employer can follow. 

Second, there should be a single set of laws and rules for all employers nationwide. At last count, 12 States have passed laws dealing with employment verification and the result has been a complex web of laws and regulations. At one point, an employer faced 

the prospect of being required to enroll in E-Verify in Arizona and 

being prohibited from doing so in Illinois. Congress should clarify 

that any new verification system preempts any current or future 

State law that attempts to buildupon, or weaken, the Federal 

scheme. 

Third, there should be clear standards of liability for employers. 

Employers may scrupulously follow the Form I–9 verification process or even go further and voluntarily use E-Verify, yet still end 

up with unlawful workers. As a result, even the most compliant 

employer could face the prospect of a DHS audit or raid, workforce 

disruption, and uncertainty about its liability. For employers who 

comply with the rules in good faith and nevertheless end up with 

the workers who are not lawful, there should be clear standards for 

when liability would attach. 

Finally, employers should bear reasonable and proportional costs 

for any system. Employers already shoulder much of the cost of administering the paper-based verification process. After all, it’s the 

employer that completes the I–9, retains the I–9. 

The fact that so many voluntary users of E-Verify inadvertently 

violate its rules suggests that many employers are underestimating 

the costs involved in establishing and running an electronic 

verification system. As Congress considers expansion of E-Verify or 

creation of a new system, careful consideration must be given to 

any additional costs that will be borne by employers. 

In closing, if Congress is successful in designing and implementing an employment verification system that is fast, accurate, 

and addresses identity theft, it will be much easier to find common 

ground on how to phase in such a system. But that will only be 

true if employers have access to a legal workforce, an open question 

when the economy recovers and current immigration quotas limit 

the availability of legal workers. 

Congress should, therefore, carefully coordinate expansion of EVerify or any alternative system with broader reforms that provide 

employers with the legal supply of workers they need to sustain 

and grow their businesses. 

Thank you, Mr. Chairman. 

18 

[The prepared statement of Mr. Melmed appears as a submission 

for the record.] 

Chairman SCHUMER. Thank you, Mr. Melmed. We want to thank 

all three witnesses for excellent testimony. 

We’re going to limit questions to 5 minutes, but we’ll go several 

rounds. I think I have more than 5 minutes’ worth of questions, 

and maybe some of my colleagues do as well. 

First, to Mr. Aytes. One of the major concerns, as you’ve heard, 

with E-Verify is the risk of identity fraud. We found company after 

company that complies with E-Verify having trouble. In December 

of 2006, a raid of the large food processing firm, Swift, led to the 

arrest of 1,200 suspected illegal workers, even though the company 

was using E-Verify at the time. 

As of August 2008, USCIS arrested 595 workers suspected of 

being illegal immigrants in a raid on Howard Industries, a company that was using E-Verify since 2007. All 595 in that one were 

charged with identity theft and fraudulent use of Social Security 

numbers. 

Given these incidents and the concern voiced by many, isn’t there 

a large risk of identity fraud not captured by the E-Verify? And 

people, as I mentioned earlier, desperate to work will figure out 

that that’s an easy way to go, it’s not just hit or miss. 

Mr. AYTES. Clearly, Senator, within the general environment of 

the country today there is a substantial vulnerability to identity 

theft not only with respect to immigration documents, but financial 

documents and in other contexts as well. 

That is one of the reasons why we have been trying to expand 

access to driver’s license information. It is the largest inventory, 

other than passport data, which we are working to add to our system of photographs to let employers know what a State saw and 

who they issued a document to other than creating a stand-alone 

process, whether it be a TWIC card, whether it be the current passport card, or whether it be a passport-like process to independently 

collect biometrics and issue documents and create a verification 

process. It’s the next logical step, we would suggest, to expanding 

the utility of E-Verify in the identity verification field. 

Chairman SCHUMER. Okay. You published a statistic that says 

96.9 of employees are automatically confirmed as authorized within 

24 hours through E-Verify, but isn’t it true that that statistic includes false positives? 

Mr. AYTES. To the extent to which there may be false positives, 

that someone has been able to successfully convince an employer 

that they are someone else, yes, sir. 

Chairman SCHUMER. Yes. Okay. 

Next question, I will go to—I have a bunch more questions for 

everybody, but I’m going to go to Mr. Ziglar. Based on your time 

at the INS and your subsequent professional experience, do you believe that there is a large risk of identity fraud not captured by the 

E-Verify system? 

Mr. ZIGLAR. I think that’s unquestionable, Senator. 

Chairman SCHUMER. All right. 

Mr. ZIGLAR. It’s quite easy these days to engage in identity theft 

and then use that to do all sorts of things, including beat the EVerify system. 

19 

Chairman SCHUMER. Right. 

And now for Mr. Melmed, and then I’m going to ask each of the 

others this question as well: do you agree that the 10 characteristics I set forth in my opening statement should serve as basic requirements for any tough, fair and effective system that would prevent employers from hiring illegal workers and will be accepted by 

the American public? Mr. Melmed? 

Mr. MELMED. Yes, Senator Schumer. I think that the framework 

that you set forth is an excellent starting point for a verification 

system. Like any system that involves a lot of technology and a lot 

of different government databases there are going to be many, 

many tough policy questions, but I think if you start with that 

framework it will be a good place. 

Chairman SCHUMER. Great. And I hope your boss—your former 

boss—was listening. 

How about you, Mr. Aytes? 

Mr. AYTES. Well, as a representative of the government here, let 

me be a little careful. I think it’s a good place to start, as Lynden 

says. 

Chairman SCHUMER. How about just as a representative of yourself? I understand this is not your organization’s position, but just 

based on your experience. No one is holding you to it, and you don’t 

have to say yes or no. 

Mr. AYTES. Thank you, sir. I do think it’s a good place to start. 

I think comprehensive reform which includes some changes in the 

verification process is going to be necessary. The President has said 

that, the Secretary has said that; I’m on firm ground in that respect. 

Chairman SCHUMER. Great. 

Mr. Ziglar? 

Mr. ZIGLAR. Mr. Chairman, I think it’s not only a good place to 

start, it’s probably a good place to end. 

Chairman SCHUMER. Thank you. All right. 

I have 14 seconds left, but I’m going to quit while I’m ahead in 

the first round and call on my colleague, Senator Cornyn. 

Senator CORNYN. I was reminded before the hearing of a story 

that I read recently about a new project to identify 1.2 billion Indians. They are taking on, on a humongous scale, something that 

we’ve been struggling with for 20 years. The predicted cost is 10• 3 

billion pounds for 1.2 billion citizens and will replace what right 

now is 20 different proofs of identity that are available and require, 

in the words of the gentleman who’s been appointed to head up this 

project, ‘‘a ubiquitous online database that will have to be impregnable to protect against loss of information’’. 

Mr. Chairman, I ask that this story from the Times Online, July 

15, be made part of the record. 

Chairman SCHUMER. Without objection. 

Senator CORNYN. Thank you. 

[The article appears as a submission for the record.] 

Senator CORNYN. Why is it that we’ve been struggling for 20 

years to do this, Mr. Melmed? Do you think it’s because we lack 

the knowledge or is it a lack of political will? 

Mr. MELMED. Senator Cornyn, I think there were two limitations 

over the past 20 years. The first, is technological. The capabilities 

20 

that the government has today are far superior than it had 20 

years ago. Even the discussion about the issue of an identification 

document, when I’ve looked at the congressional testimony from 

the 1986 debate surrounding a national ID card, it is a different 

environment and I think Americans are much more comfortable 

with the use of identification throughout their lives. So I think it’s 

a mix of both technological developments and social acceptance of 

the use of technology. 

I think more recently, however, it’s just the challenge of coordinating employment verification with the other issues related to immigration reform and the recognition that dealing with the workplace, with illegal workers in a workplace, is inextricably tied to 

fixing the legal side of the immigration system. 

Senator CORNYN. Mr. Ziglar, I know you were Commissioner of 

INS for a while. I’d just like to ask if you share my view that the 

main reason why Congress has been unable to deal with this issue 

effectively so far—I’m talking about comprehensive immigration reform—is because of the lack of confidence that the American people 

have that we’re actually serious about, as Senator Schumer said, 

operational security at the border. They’re not confident that we 

are serious about establishing an effective means of employment 

verification. 

Do you agree with that? If you disagree, tell us your views. 

Mr. ZIGLAR. Well, I think that’s part of the issue. I had the good 

fortune, I spent a year and a half after being INS Commissioner 

studying and teaching immigration law and history, and I learned 

a lot about it I wish I had known when I was Commissioner. What 

we’re going through right now in this country has happened a 

number of times, where the Congress, which has more authority in 

the area of immigration than probably any other area of the law, 

if you look at the cases, where the Congress has taken literally 

sometimes two decades to move from an ineffective system to something that is a more effective system. It’s a very volatile political 

issue; it always has been, always will be. 

So I think one of the reasons is some lack of political will. I think 

the lack of trust that it could actually happen is part of it. I think 

with respect to the employment verification system, I would associate myself with Lynden on several of the things he said. The 

technology to do a really effective verification system has just now 

been emerging over the last decade. We’re there today, but we 

would not have been there—we were not there in 1996 when the 

first electronic employment verification system was addressed by 

the Congress. 

Senator CORNYN. Well, I mentioned to Senator Schumer that 

when I visit New York and want to go into office buildings, I not 

only have to register at the front, but someone has to come down 

and let me in or be there as I go through the turnstile with a machine-readable card, presumably some form of biometric included. 

You mentioned the TWIC card that Congress mandated for transportation workers. Is there any excuse that you can think of, from 

a technological standpoint now, not to provide a reliable, comprehensive means of employee verification? 

Mr. ZIGLAR. I can’t think of any. There is no one particular technology that shines over all the others. You could use a biometric 

21 

card and use a verification scanner. Literally, you don’t necessarily 

even have to have the cards. I think the Chairman mentioned this 

in his opening statement: you could use a combination of fingerprints and iris scan, for example. The reliability factor on that is 

right up near 100 percent. 

So, I mean, there are ways of doing this and you never have to 

have somebody carry a card around. I don’t know about you. I carry 

so many cards that I can’t find them, and then I lose them. So, I 

think that has its own set of problems. But there are lots of ways 

we can tackle this problem. 

Senator CORNYN. Thank you very much. 

Chairman SCHUMER. Senator Sessions. 

Senator SESSIONS. Thank you. 

Well, this is most interesting, and matters that we need to work 

on. I think one of the things that causes the American people to 

be troubled is the E-Verify, Mr. Aytes, is still a pilot program. It 

passed 10 years ago. It was supposed to have been in effect many 

years ago. Why didn’t it happen? The reason is, I think it’s pretty 

clear: lack of political will, political pressure on Members of Congress. The money didn’t get appropriated and it never really occurred. 

Although Congress, Mr. Ziglar, definitely has the ultimate legislative power, I’m convinced, if the President doesn’t want this to 

happen it’s not going to happen. We can give them money, we can 

tell them to do these things and these capabilities. If they’re not 

leading, and motivated, and want to make it succeed, it’s never 

going to succeed. We haven’t had a President in some time that’s 

committed to that, maybe never. 

With regard to the E-Verify system, only 2.8 percent turn out to 

be final non-confirmation, Mr. Aytes. Is that about right, or 2.9? 

Mr. AYTES. 2.8. Yes, sir. 

Senator SESSIONS. 2.8. Well, I think, as you noted, 5 percent, 

people estimate, of workers in America are illegal, so this is not 

over-catching the people, apparently. But like Senator Schumer 

says, it indicates some people may be getting by the system and 

we could do better about it. 

Is it possible—I think you answered this, Mr. Ziglar. I’ll ask the 

others. Mr. Aytes, I’ll start with you. Based on the system, the capabilities of the system, is it possible that not only could the business, when they punch in a Social Security number, could see if 

that was the proper match of the Social Security number, that is, 

a valid number, but also could see the picture of the applicant? 

Mr. AYTES. Yes, they can see pictures of DHS-issued documents 

today. Soon, next year, they’ll be able to see passport-issued documents. As I said, we’ve been trying to work with the States to get 

them interested in sharing their documents so we can show what 

they see typically in an employment context, which is a driver’s license. 

Senator SESSIONS. And the question, I guess, is, what pictures 

can they see now, or soon? 

Mr. AYTES. They can see our current employment authorization 

document, which is issued for—— 

Senator SESSIONS. That’s for Federal employees? 

22 

Mr. AYTES. No, Senator. That is for aliens who are authorized to 

work temporarily in the United States. And they can see green 

cards, documents that we issue to permanent residents of the 

United States. Those are cards that we issue to people for the purpose of their status and their employment authorization. 

Senator SESSIONS. Mr. Melmed, has that got potential to be more 

effective than it is? 

Mr. MELMED. I think there’s certainly a lot of potential there. My 

understanding, statistically, from the MPI report that Commissioner Ziglar submitted into the record, there’s approximately only 

4 to 6 percent of documents used in the hiring process, about 15 

million documents right now, are part of that photo tool technology 

system. Those are only documents currently issued by DHS in connection with the immigration system. Work is under way right now 

to access, as I understand it, passport photos, so anyone with a 

U.S. passport, an employer would be able to see the passport photo 

in the system. But the driver’s license is the most commonly—— 

Chairman SCHUMER. Can I ask a question? What percentage of 

the American people have a passport with a picture? I think it’s 

only like 10 percent. Is that right? 

Mr. MELMED. I apologize, Senator Schumer. I don’t know that 

number off the top of my head. 

Chairman SCHUMER. Is that right, Mr. Aytes? 

Mr. AYTES. I’m sorry, sir. I don’t have that data. 

Chairman SCHUMER. I think it’s a small percentage. I’m not sure 

what it is. I thought it was 7 to 9, because we looked at this on 

the northern border and the crossing into Canada. But I’m sorry 

to interrupt. 

Mr. MELMED. That’s an important point to make because the 

driver’s license is being used. 

Senator SESSIONS. The driver’s license is the one that could make 

a difference? 

Mr. MELMED. Yes, Senator Sessions. That is the most frequently 

relied upon identity document during the hiring process. 

Senator SESSIONS. And when we say ‘‘biometric’’, Mr. Aytes, I’m 

inclined to believe, and was active in this debate a number of years 

ago when Secretary Ridge was there, and I encouraged him to use 

the fingerprint. I noticed when he left, he said he had one bit of 

advice to his successors: use the fingerprint because it’s a system 

that—we’re computerized nationwide through the FBI system and 

it can actually work to identify somebody. If you start a new thing, 

like an iris, the eye, or some other, visage, it has no connection. 

I mean, these may be people wanted for murder, or robberies, 

drug dealing, and things of that nature that would not be picked 

up. Some think, well, that’s bad. If I go to apply for a job and they 

find out I’m a murderer or a drug dealer, how bad is that? As a 

former prosecutor, I think that’s pretty good. That’s how you catch 

criminals today, technologically, really. 

Well, today it has real resonance, what we’re doing, because of 

the unemployment rate. I’ll just share this story. An Alabama contractor who does right-of-way work, has been doing so for 25 or 30 

years, has a lot of employees that have worked for him for many 

years, has a retirement plan and an insurance program and pays 

23 

pretty good wages, all of a sudden he had an out-of-State company 

come in and wins every contract. 

He’s convinced, and he’s received information from Federal investigators, that he’s probably correct that most of those are not legally here. So he’s going to be laying off right now, in a time of recession, American workers that probably are not over-paid, for 

sure, but having fairly decent wages and some benefits, and he 

can’t compete with this. So I think getting this right is so important and I hope that we can. 

Thank you, Mr. Chairman, for talking about these technical matters. I know Senator Kyl, on this particular issue, always felt there 

was nothing more important to get right than the kind of identification document we use, and it’s complex. So, there’s nothing 

wrong with starting and talking about it. As a matter of fact, I salute you for doing so. 

Chairman SCHUMER. Thank you. 

We’ll now go to a second round. I just have a few questions. 

These are for Mr. Ziglar. They focus a little bit on the technicalities, as Senator Sessions mentioned. 

First, can you provide examples where biometrics-based systems 

are currently being used in private industry, in the government, 

and other countries? Just share with us, briefly, how effective they 

have been. 

Mr. ZIGLAR. Biometrics are fairly ubiquitous around the world 

now. For example, the company I retired from last year, we supplied the hardware for voting systems in Venezuela, Bolivia, the 

Gold Coast, a number of places, under U.N. supervision where people were enrolled, and then when they showed up to vote, they took 

their fingerprint to eliminate as much voter fraud as possible. 

That’s an example. 

Another example. In Germany, for example, my company owned 

a company in Germany that was in the facial recognition business. 

Now, facial recognition is not a highly reliable biometric yet. It will 

get there one of these days. The two most reliable that are in practice are, of course, iris scanning and fingerprints. But we deployed 

a number of systems in Germany in casinos that could pick out habitual gamblers, which can’t go into them, or identify people that 

were not so good, or also identify employees. There are companies 

in the country now, which will remain nameless, that use facial 

recognition on the way in to make sure that these are, in fact, employees that are coming in. The Federal Government. In highly secure facilities, fingerprints and an iris are used to gain access without a card. 

Chairman SCHUMER. Right. 

Mr. ZIGLAR. So like I say, it’s spreading rather substantially. In 

the health care industry, there are now situations where a doctor 

or a nurse have to give their fingerprint in order to get access to 

medical records, which is really a terrific way of honoring the 

HIPPA laws. Would you like me to go on? I could probably spend 

another 30 minutes talking about it. 

Chairman SCHUMER. No, I get it. It’s pretty extensive. 

How is the cost here? I mean, we’re exploring this in great detail, 

as you know, as Jeff mentioned. And do you think the cost of an 

employment verification system could be paid for by using a comVerDate Nov 24 2008 13:18 Apr 06, 2010 Jkt 055645 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55520.TXT SJUD1 PsN: CMORC
24 

bination of the fines and fees to the population of individuals who 

would be legalized as part of comprehensive reform, as well as by 

taking the current revenues received from immigration work permits and applications? I mean, is the cost sort of comparable? 

Mr. ZIGLAR. Well, I don’t know what those numbers are. 

Chairman SCHUMER. Is the cost relatively reasonable for these 

things? 

Mr. ZIGLAR. The cost is really—in fact, the costs are coming down 

rather dramatically in the business, having run a company and the 

business is coming down too dramatically. But the fact is that 

these things can be done very reasonably. 

I know one of the issues that has been raised constantly is that 

employers will have to go out and buy a whole bunch of equipment 

and do all these—— 

Chairman SCHUMER. We do not intend that to happen. 

Mr. ZIGLAR. That’s just not true. There are other ways of getting 

that service on a per capita basis. 

Chairman SCHUMER. Right. Right. 

And finally, do you think that any employment verification system that uses PIN numbers or other security codes to authenticate 

an employee’s identity rather than unique biometric features will 

have a larger risk of identity theft? 

Mr. ZIGLAR. I mean, you can give somebody your PIN number. 

Chairman SCHUMER. Yes. Can’t give them your fingerprint. 

Mr. ZIGLAR. Pretty hard. 

Chairman SCHUMER. Or your face. Yes. Okay. Thank you. 

Anyone want to add anything to those two questions, Mr. 

Melmed, Mr. Aytes? 

[No response]. 

Chairman SCHUMER. Great. Okay. 

Senator Cornyn. 

Senator CORNYN. Mr. Aytes, I think you said that only 14 percent of new hires are run through E-Verify today. Did I hear you 

correctly? 

Mr. AYTES. Fourteen percent of non-agricultural hires are run 

through E-Verify. 

Senator CORNYN. Okay. So if you add agricultural hires, it would 

be—— 

Mr. AYTES. It drops the number quite a bit. 

Senator CORNYN. Substantially larger number. 

Let me put it this way: would you agree with me that we need 

to get all new hires run through E-Verify or some sort of identification system, whatever it be, whether it’s iris scans or fingerprints, 

in order to make this thing work? 

Mr. AYTES. Today, with the exception of two States, which have 

themselves decided it will be mandatory, and I think about 10 to 

12 others which have some variation of a mandatory requirement, 

usually for State employees or State contractors, it is entirely a voluntary system presently. That was the way it was set up by the 

Congress. And while it’s growing by 1,000 employees a week, which 

shows that a number of employers are interested in using this program, for it to really serve its purpose it’s going to have to be used 

far more consistently in the workplace. 

25 

Senator CORNYN. And I understand why people would voluntarily 

decide to use it for their own risk aversion, particularly if ICE and 

others are going to come in and raid their premises and enforce the 

immigration laws. But realistically, this has got to apply to every 

employer, doesn’t it, if it’s going to work reliably in a non-discriminatory way? 

Mr. AYTES. The President said that some form of verification system is going to be an essential element of immigration controls. 

Senator CORNYN. Well, I think, Mr. Melmed, you mentioned that 

you think it’s the linchpin. I would take your statement and the 

President’s statement, and Mr. Aytes’, and say it can’t just be a 

component. It really is the foundation, I think, upon which it’s 

going to be built, not only in terms of fairness and protecting private information, but also in terms of restoring the public confidence that we’re actually serious about that. 

Would you agree with that characterization, Mr. Melmed? 

Mr. MELMED. I couldn’t agree more. Certainly within the business community, having confidence that the verification system 

works is going to be critical to having full compliance, both the letter of the law, but also the spirit of the law. Employers right now, 

there’s a perception that E-Verify does not work. Some of the highprofile raids, like the Swift raid that Chairman Schumer mentioned, is cited repeatedly out there as evidence that there are still 

flaws in the system. However, the next generation of E-Verify, by 

incorporating biometrics, dealing with identity theft, will increase 

that confidence level and that will be central to comprehensive reform. 

Senator CORNYN. I’d like each one of you to comment on this 

question, if you would, please, starting with Mr. Aytes. Obviously 

we’re talking about technology and feasibility of uniform employment verification, but we haven’t yet begun to talk about how 

many more people the Department of Homeland Security is going 

to need to hire to do this and what sort of funds they’re going to 

need to enforce violations of the law or other individuals who are 

identified through this process, perhaps. 

I know it’s maybe a little premature to ask you to speculate what 

your budget is going to need to be like, but could you just comment 

generally on, once E-Verify or some counterpart of reliable employment verification system is put in place, what resources will be 

necessary for the Federal Government to provide to make it actually work, rather than just make it technologically feasible and not 

feasible in practice? 

Mr. AYTES. Sir, it is a little hard to extrapolate what it might 

cost; it will depend on the scenario. How frequently would we want 

to update to make sure, that if we’re issuing a card for example, 

the card is always current, like driver’s licenses get replaced periodically? Would DHS or another agency be involved? We’re not the 

only government agency that issues identity documents. The State 

Department issues passport cards and the passport itself, and individual States issue driver’s licenses. So, there are various scenarios. 

We have outlined that to take E-Verify—the current system 

which is not biometrically based—nationally would cost us probably 

26 

about $200 million a year, which is a little bit more than double 

what our current budget is for that program. 

Senator CORNYN. Commissioner Ziglar, do you have any comments on what else is going to be needed to make it work, in addition to the technology and the political will to make it happen? 

Mr. ZIGLAR. Well, Senator, I think it’s going to be a question of 

whether or not the government reaches out to the private sector to 

help them implement this. If they try to do it internally it will 

overwhelm the system. There is plenty of talent and ability in the 

private sector to work with the government to design a system that 

can be efficient and can be maintained. Is it going to cost money? 

You betcha. Is it worth it? You betcha. 

Senator CORNYN. Any comments you’d care to make, Mr. 

Melmed, on that regard? 

Mr. MELMED. Yes, Senator Cornyn. The cost will be significant. 

Beyond just the cost, the process involved in expanding the system 

involves appropriations, procurement, hiring employees and screening those employees, as well as implementing policy and regulations. All that said, the cost of not doing it, of not having an effective enforcement system in the workplace, is too significant. 

As I said in my opening statement, I don’t think reform will 

work. So I think the question really is how to pay for it and how 

much to spend on new technology and what you’re getting in return for each additional stage of technology, but it obviously must 

be done, and it must be paid for. Creative ways need to be found 

to pay for it. 

Senator CORNYN. Mr. Chairman, I’d note that today, for me to 

access my laptop computer, I have to swipe my fingerprint over a 

portal, which gains access to it. I just can’t imagine that this is an 

infeasible thing to do. I congratulate you for focusing on this important linchpin, as it’s been called, because I do believe that we are 

not going to get comprehensive immigration reform done unless we 

get this done right. 

Chairman SCHUMER. And on that optimistic note, we will thank 

our witnesses and call the hearing to a close. 

[Whereupon, at 3:48 p.m. the hearing was adjourned.] 

[Additional material is being retained in the Committee files, see 

Contents.] 

Questions and answers and submissions for the record follow.] 

27 


55520.001
28 


55520.002
29 


55520.003
30 


55520.004
31 


55520.005
32 


55520.006
33 


55520.007
34 


55520.008
35 


55520.009
36 


55520.010
37 


55520.011
38 


55520.012
39 


55520.013
40 


55520.014
41 


55520.015
42 


55520.016
43 


55520.017
44 


55520.018
45 


55520.019
46 


55520.020
47 


55520.021
48 


55520.022
49 


55520.023
50 


55520.024
51 


55520.025
52 


55520.026
53 


55520.027
54 


55520.028
55 


55520.029
56 


55520.030
57 


55520.031
58 


55520.032
59 


55520.033
60 


55520.034
61 


55520.035
62 


55520.036
63 


55520.037
64 


55520.038
65 


55520.039
66 


55520.040
67 


55520.041
68 


55520.042
69 


55520.043
70 


55520.044
71 


55520.045
72 


55520.046
73 


55520.047
74 


55520.048
75 


55520.049
76 


55520.050
77 


55520.051
78 


55520.052
79 


55520.053
80 


55520.054
81 


55520.055
82 


55520.056
83 


55520.057
84 


55520.058
85 


55520.059
86 


55520.060
87 


55520.061
88 


55520.062
89 


55520.063
90 


55520.064
91 


55520.065
92 


55520.066
93 


55520.067
94 


55520.068
95 


55520.069
96 


55520.070
97 


55520.071
98 


55520.072
99 


55520.073
100 


55520.074
101 


55520.075
102 


55520.076
103 


55520.077
104 


55520.078
105 


55520.079
106 


55520.080
107 


55520.081
108 


55520.082
109 


55520.083
110 


55520.084
111 


55520.085
112 


55520.086
113 


55520.087
114 


55520.088
115 


55520.089
116 


55520.090
117 


55520.091
118 


55520.092
119 


55520.093
120 


55520.094
121 


55520.095
122 


55520.096
123 


55520.097
124 


55520.098
125 


55520.099
126 


55520.100
127 


55520.101
128 


55520.102
129 


55520.103
130 


55520.104
131 


55520.105
132 


55520.106
133 


55520.107
134 


55520.108
135 


55520.109
136 


55520.110
137 


55520.111
138 


55520.112
139 


55520.113
140 


55520.114
141 


55520.115
142 


55520.116
143 


55520.117
144 


55520.118
145 


55520.119
146 


55520.120
147 


55520.121
148 


55520.122
149 


55520.123
150 


55520.124
151 


55520.125
152 


55520.126
153 


55520.127
154 


55520.128
155 

Æ 


55520.129