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LEGAL WORKFORCE ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 2164 

JUNE 15, 2011 

Serial No. 112–44 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 15, 2011 

Page 

TEXT OF THE BILL 

H.R. 2164, the ‘‘Legal Workforce Act’’ .................................................................... 2 

OPENING STATEMENTS 

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

of California, and Chairman, Subcommittee on Immigration Policy and 

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

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

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 19 

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

of Texas, and Chairman, Committee on the Judiciary ..................................... 21 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 22 

WITNESSES 

The Honorable Ken Calvert, a Representative in Congress from the State 

of California 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 56 

Barry Rutenberg, First Vice Chairman of the Board, National Association 

of Home Builders 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 60 

Craig S. Miller, Chair, National Restaurant Association (2005–2006), Current 

Member, Board’s Jobs and Careers Committee 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 71 

Tyler Moran, Policy Director, National Immigration Law Center 

Oral Testimony ..................................................................................................... 81 

Prepared Statement ............................................................................................. 83 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable John Conyers, Jr., a Representative 

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

on the Judiciary ................................................................................................... 25 

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

on Immigration Policy and Enforcement ........................................................... 97 

Material submitted by the Honorable Elton Gallegly, a Representative in 

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

Immigration Policy and Enforcement ................................................................. 111 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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

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

on the Judiciary ................................................................................................... 115 

Prepared Statement of the Honorable Judy Chu, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 117 

Prepared Statement of the Honorable Michael M. Honda, a Representative 

in Congress from the State of California ........................................................... 119 

Prepared Statement of Dunkin’ Brands, Inc. ........................................................ 120 

(1) 

LEGAL WORKFORCE ACT 

WEDNESDAY, JUNE 15, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:19 a.m., in room 

2141, Rayburn House Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, King, Lungren, Poe, 

Lofgren, Jackson Lee and Conyers (ex officio). 

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

Clerk; and David Shahoulian, Minority Counsel. 

Mr. GALLEGLY. We will move ahead with our opening statements 

in order to facilitate getting the meeting going. I will call the hearing to order. Good morning. 

Currently there are nearly 14 million unemployed Americans. 

Making sure that they have every opportunity to find work is more 

important now than ever. One way to do this is it to reduce the 

number of jobs that go to illegal immigrants. The E-Verify program 

will clearly do just that. 

E-Verify allows employers to check the work eligibility of new 

hires by running the employee’s Social Security number or alien 

identification number against Department of Homeland Security 

and Social Security Administration records. 

In 1995, I chaired the Congressional Task Force on Immigration 

Reform. We published a 200-plus-page report with more than 80 

specific recommendations. One of those was an electronic employment eligibility verification system, which was included in Chairman Smith’s 1996 immigration reform bill. The system is now 

known as E-Verify. It is currently a voluntary program for most of 

the almost 250,000 employers who use it. It is free, Internet-based, 

and very easy to use, and the employers who use it all agree. 

I am pleased to be an original cosponsor of the Legal Workforce 

Act. The bill mandates that all employers in the United States use 

E-Verify to help make sure their workforce is legal. The result of 

that will be that jobs are reserved for citizens and legal residents. 

The bill requires that employers be notified when they submit 

one or more mismatched W-2 statements. Once the employer receives the notice, they must use E-Verify to check the employee’s 

work eligibility and are subject to penalty if they do not then follow 

the requirements of E-Verify in good faith. 

2 

And the Legal Workforce Act requires employees who submit a 

Social Security number for which there is a pattern of unusual 

multiple use to be notified of the use so that the rightful owner can 

be determined. The employer must then be notified of the unusual 

use and follow the E-Verify procedures for that employee. 

Another important change the bill makes to the E-Verify process 

will help alleviate some of the burden on business. Currently an 

employer is prohibited from using E-Verify until after they have 

hired the employee. So sometimes they invest time, money and resources into an employee only to have it turn out that the employee 

is not work eligible. But the Legal Workforce Act allows the employer to make a job offer conditioned on an E-Verify confirmation. 

This change is simply common sense. 

The Legal Workforce Act implements a process whereby employers can help ensure a legal workforce, and Americans will have a 

chance to get every job possible in the U.S. 

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

this point, I will recognize my friend, the Ranking Member from 

California, Ms. Lofgren. 

[The text of the bill, H.R. 2164, follows:] 

I 

112TH CONGRESS 

1ST SESSION H. R. 2164 

To amend the Immigration and Nationality Act to make mandatory and permanent 

requirements relating to use of an electronic employment eligibility verification 

system, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 14, 2011 

Mr. SMITH of Texas (for himself, Mr. CALVERT, Mr. GALLEGLY, Mr. CHAFFETZ, Mr. 

BILBRAY, Mr. ROYCE, Mr. GARY G. MILLER of California, Mrs. MYRICK, Mr. SENSENBRENNER, Mr. FRANKS of Arizona, Mr. CARTER, Mr. KINGSTON, Mr. DANIEL E. 

LUNGREN of California, and Mr. GOODLATTE) introduced the following bill; which 

was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Immigration and Nationality Act to make mandatory and permanent 

requirements relating to use of an electronic employment eligibility verification 

system, and for other purposes. 

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Legal Workforce Act’’. 

SEC. 2. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS. 

Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is 

amended to read as follows: 

‘‘(b) EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.— 

3 

‘‘(1) NEW HIRES, RECRUITMENT, AND REFERRAL.—The requirements referred 

to in paragraphs (1)(B) and (3) of subsection (a) are, in the case of a person or 

other entity hiring, recruiting, or referring an individual for employment in the 

United States, the following: 

‘‘(A) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION.— 

‘‘(i) ATTESTATION.—During the verification period (as defined in 

subparagraph (F)), the person or entity shall attest, under penalty of 

perjury and on a form, including electronic and telephonic formats, designated or established by the Secretary by regulation not later than 6 

months after the date of the enactment of the Legal Workforce Act, 

that it has verified that the individual is not an unauthorized alien 

by— 

‘‘(I) obtaining from the individual the individual’s social security account number and recording the number on the form (if the 

individual claims to have been issued such a number), and, if the 

individual does not attest to United States citizenship under subparagraph (B), obtaining such identification or authorization number established by the Department of Homeland Security for the 

alien as the Secretary of Homeland Security may specify, and recording such number on the form; and 

‘‘(II) examining— 

‘‘(aa) a document described in clause (ii); or 

‘‘(bb) a document described in clause (iii) and a document described in clause 

(iv). 

‘‘(ii) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION AND ESTABLISHING IDENTITY.—A document described in this subparagraph is 

an individual’s— 

‘‘(I) unexpired United States passport or passport card; 

‘‘(II) unexpired permanent resident card that contains a photograph; 

‘‘(III) unexpired employment authorization card that contains 

a photograph; 

‘‘(IV) in the case of a nonimmigrant alien authorized to work 

for a specific employer incident to status, a foreign passport with 

Form I–94 or Form I–94A bearing the same name as the passport 

and containing as endorsement of the alien’s nonimmigrant status, 

as long as the period of endorsement has not yet expired and the 

proposed employment is not in conflict with any restrictions or limitations identified on the form; 

‘‘(V) passport from the Federated States of Micronesia (FSM) 

or the Republic of the Marshall Islands (RMI) with Form I–94 or 

Form I–94A indicating nonimmigrant admission under the Compact of Free Association Between the United Sates and the FSM 

or RMI; or 

‘‘(VI) other document designated by the Secretary of Homeland 

Security, if the document— 

‘‘(aa) contains a photograph of the individual and biometric identification data 

from the individual and such other personal identifying information relating to 

the individual as the Secretary of Homeland Security finds, by regulation, sufficient for purposes of this clause; 

‘‘(bb) is evidence of authorization of employment in the United States; and 

‘‘(cc) contains security features to make it resistant to tampering, counterfeiting, 

and fraudulent use. 

‘‘(iii) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION.—A 

document described in this subparagraph is an individual’s social security account number card (other than such a card which specifies on the 

face that the issuance of the card does not authorize employment in the 

United States). 

‘‘(iv) DOCUMENTS ESTABLISHING IDENTITY OF INDIVIDUAL.—A document described in this subparagraph is— 

‘‘(I) an individual’s unexpired State issued driver’s license or 

identification card if it contains a photograph and information such 

as name, date of birth, gender, height, eye color, and address; 

‘‘(II) an individual’s unexpired U.S. military identification card; 

‘‘(III) an individual’s unexpired Native American tribal identification document; or 

4 

‘‘(IV) in the case of an individual under 18 years of age, a parent or legal guardian’s attestation under penalty of law as to the 

identity and age of the individual. 

‘‘(v) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS.—If the 

Secretary of Homeland Security finds, by regulation, that any document described in clause (i), (ii), or (iii) as establishing employment authorization or identity does not reliably establish such authorization or 

identity or is being used fraudulently to an unacceptable degree, the 

Secretary may prohibit or place conditions on its use for purposes of 

this paragraph. 

‘‘(vi) SIGNATURE.—Such attestation may be manifested by either a 

hand-written or electronic signature. 

‘‘(B) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.— 

‘‘(i) IN GENERAL.—During the verification period (as defined in subparagraph (F)), the individual shall attest, under penalty of perjury on 

the form designated or established for purposes of subparagraph (A), 

that the individual is a citizen or national of the United States, an 

alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary of Homeland Security to be 

hired, recruited, or referred for such employment. Such attestation may 

be manifested by either a hand-written or electronic signature. The individual shall also provide that individual’s social security account 

number (if the individual claims to have been issued such a number), 

and, if the individual does not attest to United States citizenship under 

this subparagraph, such identification or authorization number established by the Department of Homeland Security for the alien as the 

Secretary may specify. 

‘‘(ii) CRIMINAL PENALTY.— 

‘‘(I) OFFENSES.—Any individual who, pursuant to clause (i), 

provides a social security account number or an identification or 

authorization number established by the Secretary of Homeland 

Security that belongs to another person, knowing that the number 

does not belong to the individual providing the number, shall be 

fined under title 18, United States Code, imprisoned not less than 

1 year and not more than 15 years, or both. Any individual who, 

pursuant to clause (i), provides, during and in relation to any felony violation enumerated in section 1028A(c) of title 18, United 

States Code, a social security account number or an identification 

or authorization number established by the Secretary of Homeland 

Security that belongs to another person, knowing that the number 

does not belong to the individual providing the number, in addition 

to the punishment provided for such felony, shall be fined under 

title 18, United States Code, imprisoned for a term of 2 years, or 

both. 

‘‘(II) CONSECUTIVE SENTENCE.—Notwithstanding any other provision of law— 

‘‘(aa) a court shall not place on probation any individual convicted of a violation 

of this clause; 

‘‘(bb) except as provided in item (dd), no term of imprisonment imposed on an 

individual under this section shall run concurrently with any other term of imprisonment imposed on the individual under any other provision of law, including 

any term of imprisonment imposed for the felony enumerated in section 1028A(c) 

of title 18, United States Code, during which the violation of this section occurred; 

‘‘(cc) in determining any term of imprisonment to be imposed for the felony enumerated in section 1028A(c) of title 18, United States Code, during which the violation of this clause occurred, a court shall not in any way reduce the term to be 

imposed for such crime so as to compensate for, or otherwise take into account, 

any separate term of imprisonment imposed or to be imposed for a violation of 

this clause; and 

‘‘(dd) a term of imprisonment imposed on an individual for a violation of this 

clause may, in the discretion of the court, run concurrently, in whole or in part, 

only with another term of imprisonment that is imposed by the court at the same 

time on that individual for an additional violation of this clause, except that such 

discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the United States Sentencing Commission pursuant to 

section 994 of title 28, United States Code. 

‘‘(C) RETENTION OF VERIFICATION FORM AND VERIFICATION.— 

5 

‘‘(i) IN GENERAL.—After completion of such form in accordance with 

subparagraphs (A) and (B), the person or entity shall— 

‘‘(I) retain a paper, microfiche, microfilm, or electronic version 

of the form and make it available for inspection by officers of the 

Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department 

of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending— 

‘‘(aa) in the case of the recruiting or referral of an individual, 3 years after the 

date of the recruiting or referral; and 

‘‘(bb) in the case of the hiring of an individual, the later of 3 years after the 

date of such hire or one year after the date the individual’s employment is terminated; and 

‘‘(II) during the verification period (as defined in subparagraph 

(F)), make an inquiry, as provided in subsection (d), using the 

verification system to seek verification of the identity and employment eligibility of an individual. 

‘‘(ii) VERIFICATION.— 

‘‘(I) VERIFICATION RECEIVED.—If the person or other entity receives an appropriate verification of an individual’s identity and 

work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates 

a final verification of such identity and work eligibility of the individual. 

‘‘(II) TENTATIVE NONVERIFICATION RECEIVED.—If the person or 

other entity receives a tentative nonverification of an individual’s 

identity or work eligibility under the verification system within the 

time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does 

not contest the nonverification within the time period specified, the 

nonverification shall be considered final. The person or entity shall 

then record on the form an appropriate code which has been provided under the system to indicate a tentative nonverification. If 

the individual does contest the nonverification, the individual shall 

utilize the process for secondary verification provided under subsection (d). The nonverification will remain tentative until a final 

verification or nonverification is provided by the verification system 

within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this 

section until a nonverification becomes final. Nothing in this clause 

shall apply to a termination of employment for any reason other 

than because of such a failure. In no case shall an employer rescind 

the offer of employment to an individual because of a failure of the 

individual to have identity and work eligibility confirmed under 

this subsection until a nonconfirmation becomes final. Nothing in 

this subclause shall apply to a recission of the offer of employment 

for any reason other than because of such a failure. 

‘‘(III) FINAL VERIFICATION OR NONVERIFICATION RECEIVED.—If a 

final verification or nonverification is provided by the verification 

system regarding an individual, the person or entity shall record 

on the form an appropriate code that is provided under the system 

and that indicates a verification or nonverification of identity and 

work eligibility of the individual. 

‘‘(IV) EXTENSION OF TIME.—If the person or other entity in 

good faith attempts to make an inquiry during the time period 

specified and the verification system has registered that not all inquiries were received during such time, the person or entity may 

make an inquiry in the first subsequent working day in which the 

verification system registers that it has received all inquiries. If 

the verification system cannot receive inquiries at all times during 

a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence 

to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry. 

‘‘(V) CONSEQUENCES OF NONVERIFICATION.— 

6 

‘‘(aa) TERMINATION OR NOTIFICATION OF CONTINUED EMPLOYMENT.—If the person 

or other entity has received a final nonverification regarding an individual, the 

person or entity may terminate employment of the individual (or decline to recruit 

or refer the individual). If the person or entity does not terminate employment 

of the individual or proceeds to recruit or refer the individual, the person or entity 

shall notify the Secretary of Homeland Security of such fact through the 

verification system or in such other manner as the Secretary may specify. 

‘‘(bb) FAILURE TO NOTIFY.—If the person or entity fails to provide notice with 

respect to an individual as required under item (aa), the failure is deemed to constitute a violation of subsection (a)(1)(A) with respect to that individual. 

‘‘(VI) CONTINUED EMPLOYMENT AFTER FINAL

NONVERIFICATION.—If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonverification, a rebuttable presumption is created that the person or 

entity has violated subsection (a)(1)(A). 

‘‘(D) CONTINUATION OF SEASONAL AGRICULTURAL EMPLOYMENT.—An individual shall not be considered a new hire subject to verification under this 

paragraph if the individual is engaged in seasonal agricultural employment 

and is returning to work for an employer that previously employed the individual. 

‘‘(E) EFFECTIVE DATES OF NEW PROCEDURES.— ‘‘(i) HIRING.—Except as provided in clause (iii), the provisions of 

this paragraph shall apply to a person or other entity hiring an individual for employment in the United States as follows: 

‘‘(I) With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal 

Workforce Act, on the date that is 6 months after the date of the 

enactment of such Act. 

‘‘(II) With respect to employers having 500 or more employees 

in the United States, but less than 10,000 employees in the United 

States, on the date of the enactment of the Legal Workforce Act, 

on the date that is 12 months after the date of the enactment of 

such Act. 

‘‘(III) With respect to employers having 20 or more employees 

in the United States, but less than 500 employees in the United 

States, on the date of the enactment of the Legal Workforce Act, 

on the date that is 18 months after the date of the enactment of 

such Act. 

‘‘(IV) With respect to employers having 1 or more employees in 

the United States, but less than 20 employees in the United States, 

on the date of the enactment of the Legal Workforce Act, on the 

date that is 24 months after the date of the enactment of such Act. 

‘‘(ii) RECRUITING AND REFERRING.—Except as provided in clause 

(iii), the provisions of this paragraph shall apply to a person or other 

entity recruiting or referring an individual for employment in the 

United States on the date that is 12 months after the date of the enactment of the Legal Workforce Act. 

‘‘(iii) AGRICULTURAL LABOR OR SERVICES.—With respect to an employee performing agricultural labor or services (as defined for purposes 

of section 101(a)(15)(H)(ii)(a)), this paragraph shall not apply with respect to the verification of the employee until the date that is 36 

months after the date of the enactment of the Legal Workforce Act. An 

employee described in this clause shall not be counted for purposes of 

clause (i). 

‘‘(iv) TRANSITION RULE.—Subject to paragraph (4), the following 

shall apply to a person or other entity hiring, recruiting, or referring 

an individual for employment in the United States until the effective 

date or dates applicable under clauses (i) through (iii): 

‘‘(I) This subsection, as in effect before the enactment of the 

Legal Workforce Act. 

‘‘(II) Subtitle A of title IV of the Illegal Immigration Reform 

and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as 

in effect before the effective date in section 7(c) of the Legal Workforce Act. 

‘‘(III) Any other provision of Federal law requiring the person 

or entity to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before 

7 

the effective date in section 7(c) of the Legal Workforce Act, including Executive Order 13465 (8 U.S.C. 1324a note; relating to Government procurement). 

‘‘(F) VERIFICATION PERIOD DEFINED.— ‘‘(i) IN GENERAL.—For purposes of this paragraph: 

‘‘(I) In the case of recruitment or referral, the term ‘verification 

period’ means the period ending on the date recruiting or referring 

commences. ‘‘(II) In the case of hiring, the term ‘verification period’ means 

the period beginning on the date on which an offer of employment 

is extended and ending on the date that is 3 business days after 

the date of hiring. The offer of employment may be conditioned in 

accordance with clause (ii). 

‘‘(ii) JOB OFFER MAY BE CONDITIONAL.—A person or other entity 

may offer a prospective employee an employment position that is conditioned on final verification of the identity and employment eligibility of 

the employee using the procedures established under this paragraph. 

‘‘(2) REVERIFICATION FOR INDIVIDUALS WITH LIMITED WORK AUTHORIZA- TION.— ‘‘(A) IN GENERAL.—Except as provided in subparagraph (B), a person or 

entity shall make an inquiry, as provided in subsection (d), using the 

verification system to seek reverification of the identity and employment 

eligibility of all individuals with a limited period of work authorization employed by the person or entity during the 30-day period ending on the date 

the employee’s work authorization expires as follows: 

‘‘(i) With respect to employers having 10,000 or more employees in 

the United States on the date of the enactment of the Legal Workforce 

Act, beginning on the date that is 6 months after the date of the enactment of such Act. 

‘‘(ii) With respect to employers having 500 or more employees in 

the United States, but less than 10,000 employees in the United States, 

on the date of the enactment of the Legal Workforce Act, beginning on 

the date that is 12 months after the date of the enactment of such Act. 

‘‘(iii) With respect to employers having 20 or more employees in the 

United States, but less than 500 employees in the United States, on the 

date of the enactment of the Legal Workforce Act, beginning on the 

date that is 18 months after the date of the enactment of such Act. 

‘‘(iv) With respect to employers having 1 or more employees in the 

United States, but less than 20 employees in the United States, on the 

date of the enactment of the Legal Workforce Act, beginning on the 

date that is 24 months after the date of the enactment of such Act. 

‘‘(B) AGRICULTURAL LABOR OR SERVICES.—With respect to an employee 

performing agricultural labor or services (as defined for purposes of section 

101(a)(15)(H)(ii)(a)), subparagraph (A) shall not apply with respect to the 

reverification of the employee until the date that is 36 months after the 

date of the enactment of the Legal Workforce Act. An employee described 

in this subparagraph shall not be counted for purposes of subparagraph (A). 

‘‘(C) REVERIFICATION.—Paragraph (1)(C)(ii) shall apply to 

reverifications pursuant to this paragraph on the same basis as it applies 

to verifications pursuant to paragraph (1), except that employers shall— 

‘‘(i) use a form designated or established by the Secretary by regulation for purposes of this paragraph in lieu of the verification form 

under paragraph (1); and 

‘‘(ii) retain a paper, microfiche, microfilm, or electronic version of 

the form and make it available for inspection by officers of the Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during 

the period beginning on the date the reverification commences and ending on the date that is the later of 3 years after the date of such 

reverification or 1 year after the date the individual’s employment is 

terminated. 

‘‘(D) NOTICE.—The Secretary of Homeland Security shall notify a person or entity employing a person with limited work authorization of the 

date on which the limited work authorization expires. 

‘‘(3) PREVIOUSLY HIRED INDIVIDUALS.— 

‘‘(A) ON A MANDATORY BASIS FOR CERTAIN EMPLOYEES.— 

‘‘(i) IN GENERAL.—Not later than the date that is 6 months after 

the date of the enactment of the Legal Workforce Act, an employer 

8 

shall make an inquiry, as provided in subsection (d), using the 

verification system to seek verification of the identity and employment 

eligibility of any individual described in clause (ii) employed by the employer whose employment eligibility has not been verified under the EVerify Program described in section 403(a) of the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 

note). 

‘‘(ii) INDIVIDUALS DESCRIBED.—An individual described in this 

clause is any of the following: 

‘‘(I) An employee of any unit of a Federal, State, or local government. 

‘‘(II) An employee who requires a Federal security clearance 

working in a Federal, State or local government building, a military base, a nuclear energy site, a weapons site, or an airport or 

other facility that requires workers to carry a Transportation 

Worker Identification Credential (TWIC). 

‘‘(III) An employee assigned to perform work in the United 

States under a Federal or State contract, except that this subclause— 

‘‘(aa) is not applicable to individuals who have a clearance under Homeland Security Presidential Directive 12 (HSPD 12 clearance), are administrative or overhead personnel, or are working solely on contracts that provide Commercial Off 

The Shelf goods or services as set forth by the Federal Acquisition Regulatory 

Council, unless they are subject to verification under subclause (II); and 

‘‘(bb) only applies to contacts over the simple acquisition threshold. 

‘‘(B) ON A MANDATORY BASIS FOR MULTIPLE USERS OF SAME SOCIAL SECU- RITY ACCOUNT NUMBER.—In the case of an employer who is required by this 

subsection to use the verification system described in subsection (d), or has 

elected voluntarily to use such system, the employer shall make inquiries 

to the system in accordance with the following: 

‘‘(i) The Commissioner of Social Security shall notify annually employees (at the employee address listed on the Wage and Tax Statement) who submit a social security account number to which more than 

one employer reports income and for which there is a pattern of unusual multiple use. The notification letter shall identify the number of 

employers to which, and the States in which, income is being reported 

as well as sufficient information notifying the employee of the process 

to contact the Social Security Administration Fraud Hotline if the employee believes the employee’s identity may have been stolen. The notice shall not share information protected as private, in order to avoid 

any recipient of the notice being in the position to further identity 

theft. 

‘‘(ii) If the person to whom the social security account number was 

issued by the Social Security Administration has been identified and 

confirmed by Commissioner, and indicates that the social security account number was used without their knowledge, the Secretary and the 

Commissioner shall lock the social security account number for employment eligibility verification purposes and shall notify the employers of 

the individuals who wrongfully submitted the social security account 

number that the employee may not be work eligible. 

‘‘(iii) Each employer receiving such notification of invalid social security account number shall use the verification system described in 

subsection (d) to check the work eligibility status of the applicable employee within 10 business days of receipt of the notification of invalid 

social security account number under clause (ii). 

‘‘(C) ON A MANDATORY BASIS FOR CERTAIN MISMATCHED WAGE AND TAX

STATEMENTS.— 

‘‘(i) IN GENERAL.—In the case of an employer who is required by 

this subsection to use the verification system described in subsection 

(d), or has elected voluntarily to use such system, and who receives a 

notice described in clause (ii) identifying an individual employee, the 

employer shall, not later than 30 calendar days after receipt of such notice, use the verification system described in subsection (d) to verify the 

employment eligibility of the employee in accordance with the instructions in such notice if the individual is still on the payroll of the employer. 

‘‘(ii) NOTICE.—The Commissioner of Social Security shall issue a 

notice to an employer submitting one or more mismatched wage and 

9 

tax statements or corrected wage and tax statements containing the following: 

‘‘(I) A description of the mismatched information. 

‘‘(II) An explanation of the steps that the employer is required 

to take to correct the mismatched information. 

‘‘(III) An explanation of the employment eligibility verification 

requirement described in clause (i). 

‘‘(D) ON A VOLUNTARY BASIS.—Subject to paragraph (2), and subparagraphs (A) through (C) of this paragraph, beginning on the date that is 30 

days after the date of the enactment of the Legal Workforce Act, an employer may make an inquiry, as provided in subsection (d), using the 

verification system to seek verification of the identity and employment eligibility of any individual employed by the employer. If an employer chooses 

voluntarily to seek verification of any individual employed by the employer, 

the employer shall seek verification of all individuals so employed. An employer’s decision about whether or not voluntarily to seek verification of its 

current workforce under this subparagraph may not be considered by any 

government agency in any proceeding, investigation, or review provided for 

in this Act. 

‘‘(E) VERIFICATION.—Paragraph (1)(C)(ii) shall apply to verifications 

pursuant to this paragraph on the same basis as it applies to verifications 

pursuant to paragraph (1), except that employers shall— 

‘‘(i) use a form designated or established by the Secretary by regulation for purposes of this paragraph in lieu of the verification form 

under paragraph (1); and 

‘‘(ii) retain a paper, microfiche, microfilm, or electronic version of 

the form and make it available for inspection by officers of the Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during 

the period beginning on the date the verification commences and ending on the date that is the later of 3 years after the date of such 

verification or 1 year after the date the individual’s employment is terminated. 

‘‘(4) EARLY COMPLIANCE.— 

‘‘(A) FORMER E-VERIFY REQUIRED USERS, INCLUDING FEDERAL CONTRACTORS.—Notwithstanding the deadlines in paragraphs (1) and (2), beginning 

on the earlier of the date that is 6 months after the date of the enactment 

of the Legal Workforce Act and the date on which the Secretary implements 

the system under subsection (d), the Secretary is authorized to commence 

requiring employers required to participate in the E–Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 (8 U.S.C. 1324a note), including employers required to participate in such program by reason of Federal acquisition laws 

(and regulations promulgated under those laws, including the Federal Acquisition Regulation), to commence compliance with the requirements of 

this subsection (and any additional requirements of such Federal acquisition laws and regulation) in lieu of any requirement to participate in the 

E-Verify Program. 

‘‘(B) FORMER E-VERIFY VOLUNTARY USERS AND OTHERS DESIRING EARLY

COMPLIANCE.—Notwithstanding the deadlines in paragraphs (1) and (2), beginning 30 days after the date of the enactment of the Legal Workforce Act, 

the Secretary shall provide for the voluntary compliance with the requirements of this subsection by employers voluntarily electing to participate in 

the E–Verify Program described in section 403(a) of the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) before such date, as well as by other employers seeking voluntary early compliance. 

‘‘(5) COPYING OF DOCUMENTATION PERMITTED.—Notwithstanding any other 

provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except 

as otherwise permitted under law) for the purpose of complying with the requirements of this subsection. 

‘‘(6) LIMITATION ON USE OF FORMS.—A form designated or established by the 

Secretary of Homeland Security under this subsection and any information contained in or appended to such form, may not be used for purposes other than 

for enforcement of this Act and any other provision of Federal criminal law. 

‘‘(7) GOOD FAITH COMPLIANCE.— 

10 

‘‘(A) IN GENERAL.—Except as otherwise provided in this subsection, a 

person or entity is considered to have complied with a requirement of this 

subsection notwithstanding a technical or procedural failure to meet such 

requirement if there was a good faith attempt to comply with the requirement. 

‘‘(B) EXCEPTION IF FAILURE TO CORRECT AFTER NOTICE.—Subparagraph 

(A) shall not apply if— 

‘‘(i) the failure is not de minimus; 

‘‘(ii) the Secretary of Homeland Security has explained to the person or entity the basis for the failure and why it is not de minimus; 

‘‘(iii) the person or entity has been provided a period of not less 

than 30 calendar days (beginning after the date of the explanation) 

within which to correct the failure; and 

‘‘(iv) the person or entity has not corrected the failure voluntarily 

within such period. 

‘‘(C) EXCEPTION FOR PATTERN OR PRACTICE VIOLATORS.—Subparagraph 

(A) shall not apply to a person or entity that has or is engaging in a pattern 

or practice of violations of subsection (a)(1)(A) or (a)(2).’’. 

SEC. 3. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM. 

Section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)) is 

amended to read as follows: 

‘‘(d) EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.— 

‘‘(1) IN GENERAL.—Patterned on the employment eligibility confirmation 

system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), the Secretary of 

Homeland Security shall establish and administer a verification system through 

which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)— 

‘‘(A) responds to inquiries made by persons at any time through a tollfree telephone line and other toll-free electronic media concerning an individual’s identity and whether the individual is authorized to be employed; 

and 

‘‘(B) maintains records of the inquiries that were made, of verifications 

provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under this section. 

‘‘(2) INITIAL RESPONSE.—The verification system shall provide verification or 

a tentative nonverification of an individual’s identity and employment eligibility 

within 3 working days of the initial inquiry. If providing verification or tentative nonverification, the verification system shall provide an appropriate code 

indicating such verification or such nonverification. 

‘‘(3) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE

NONVERIFICATION.—In cases of tentative nonverification, the Secretary shall 

specify, in consultation with the Commissioner of Social Security, an available 

secondary verification process to confirm the validity of information provided 

and to provide a final verification or nonverification within 10 working days 

after the date of the tentative nonverification. When final verification or 

nonverification is provided, the verification system shall provide an appropriate 

code indicating such verification or nonverification. 

‘‘(4) DESIGN AND OPERATION OF SYSTEM.—The verification system shall be 

designed and operated— 

‘‘(A) to maximize its reliability and ease of use by persons and other 

entities consistent with insulating and protecting the privacy and security 

of the underlying information; 

‘‘(B) to respond to all inquiries made by such persons and entities on 

whether individuals are authorized to be employed and to register all times 

when such inquiries are not received; 

‘‘(C) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; 

‘‘(D) to have reasonable safeguards against the system’s resulting in 

unlawful discriminatory practices based on national origin or citizenship 

status, including— 

‘‘(i) the selective or unauthorized use of the system to verify eligibility; or 

‘‘(ii) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional 

verification will be required, beyond what is required for most job applicants; and 

11 

‘‘(E) to limit the subjects of verification to the following individuals: 

‘‘(i) Individuals hired, referred, or recruited, in accordance with 

paragraph (1) or (4) of subsection (b). 

‘‘(ii) Employees and prospective employees, in accordance with 

paragraph (2), (3), or (4) of subsection (b). 

‘‘(iii) Individuals seeking to confirm their own employment eligibility on a voluntary basis. 

‘‘(5) RESPONSIBILITIES OF COMMISSIONER OF SOCIAL SECURITY.—As part of 

the verification system, the Commissioner of Social Security, in consultation 

with the Secretary of Homeland Security (and any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs 

(2) and (3), compares the name and social security account number provided in 

an inquiry against such information maintained by the Commissioner in order 

to validate (or not validate) the information provided regarding an individual 

whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such 

verification or nonverification) except as provided for in this section or section 

205(c)(2)(I) of the Social Security Act. 

‘‘(6) RESPONSIBILITIES OF SECRETARY OF HOMELAND SECURITY.—As part of 

the verification system, the Secretary of Homeland Security (in consultation 

with any designee of the Secretary selected to establish and administer the 

verification system), shall establish a reliable, secure method, which, within the 

time periods specified under paragraphs (2) and (3), compares the name and 

alien identification or authorization number which are provided in an inquiry 

against such information maintained by the Secretary in order to validate (or 

not validate) the information provided, the correspondence of the name and 

number, and whether the alien is authorized to be employed in the United 

States. 

‘‘(7) OFFENSES.— 

‘‘(A) IN GENERAL.—Any person or entity that, in making an inquiry 

under subsection (b)(1)(C)(i)(II), provides to the verification system a social 

security account number or an identification or authorization number established by the Secretary of Homeland Security that belongs to a person other 

than the individual whose identity and employment authorization are being 

verified, knowing that the number does not belong to the individual whose 

identity and employment authorization are being verified, shall be fined 

under title 18, United States Code, imprisoned not less than 1 year and not 

more than 15 years, or both. If the person or entity, in making an inquiry 

under subsection (b)(1)(C)(i)(II), during and in relation to any felony violation enumerated in section 1028A(c) of title 18, United States Code, provides to the verification system a social security account number or an identification or authorization number established by the Secretary of Homeland Security that belongs to a person other than the individual whose 

identity and employment authorization are being verified, knowing that the 

number does not belong to the individual whose identity and work authorization are being verified, in addition to the punishment provided for such 

felony, shall be fined under title 18, United States Code, imprisoned for a 

term of 2 years, or both. 

‘‘(B) CONSECUTIVE SENTENCE.—Notwithstanding any other provision of 

law— 

‘‘(i) a court shall not place on probation any person or entity convicted of a violation of this paragraph; 

‘‘(ii) except as provided in clause (iv), no term of imprisonment imposed on a person or entity under this section shall run concurrently 

with any other term of imprisonment imposed on the person or entity 

under any other provision of law, including any term of imprisonment 

imposed for the felony enumerated in section 1028A(c) of title 18, 

United States Code, during which the violation of this paragraph occurred; 

‘‘(iii) in determining any term of imprisonment to be imposed for 

the felony enumerated in section 1028A(c) of title 18, United States 

Code, during which the violation of this section occurred, a court shall 

not in any way reduce the term to be imposed for such crime so as to 

compensate for, or otherwise take into account, any separate term of 

12 

imprisonment imposed or to be imposed for a violation of this paragraph; and 

‘‘(iv) a term of imprisonment imposed on a person or entity for a 

violation of this paragraph may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment 

that is imposed by the court at the same time on that person or entity 

for an additional violation of this paragraph, except that such discretion shall be exercised in accordance with any applicable guidelines and 

policy statements issued by the United States Sentencing Commission 

pursuant to section 994 of title 28, United States Code. 

‘‘(8) UPDATING INFORMATION.—The Commissioner of Social Security and the 

Secretary of Homeland Security shall update their information in a manner 

that promotes the maximum accuracy and shall provide a process for the 

prompt correction of erroneous information, including instances in which it is 

brought to their attention in the secondary verification process described in 

paragraph (3). 

‘‘(9) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS.— 

‘‘(A) IN GENERAL.—Notwithstanding any other provision of law, nothing 

in this section shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subsection for any 

other purpose other than as provided for under this section. 

‘‘(B) NO NATIONAL IDENTIFICATION CARD.—Nothing in this section shall 

be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification 

card. 

‘‘(10) REMEDIES.—If an individual alleges that the individual would not 

have been dismissed from a job but for an error of the verification mechanism, 

the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action 

may be brought under this paragraph.’’. 

SEC. 4. RECRUITMENT, REFERRAL, AND CONTINUATION OF EMPLOYMENT. 

(a) ADDITIONAL CHANGES TO RULES FOR RECRUITMENT, REFERRAL, AND CONTINUATION OF EMPLOYMENT.—Section 274A(a) of the Immigration and Nationality 

Act (8 U.S.C. 1324a(a)) is amended— 

(1) in paragraph (1)(A), by striking ‘‘for a fee’’; 

(2) in paragraph (1), by amending subparagraph (B) to read as follows: 

‘‘(B) to hire, continue to employ, or to recruit or refer for employment 

in the United States an individual without complying with the requirements of subsection (b).’’; 

(3) in paragraph (2), by striking ‘‘after hiring an alien for employment in 

accordance with paragraph (1),’’ and inserting ‘‘after complying with paragraph 

(1),’’; and 

(4) in paragraph (3), by striking ‘‘hiring,’’ and inserting ‘‘hiring, employing,’’ 

each place it appears. 

(b) DEFINITION.—Section 274A(h) of the Immigration and Nationality Act (8 

U.S.C. 1324a(h)) is amended by adding at the end the following: 

‘‘(4) DEFINITION OF RECRUIT OR REFER.—As used in this section, the term 

‘refer’ means the act of sending or directing a person or transmitting documentation or information to another, directly or indirectly, with the intent of 

obtaining employment in the United States for such person. Only persons or entities referring for remuneration (whether on a retainer or contingency basis) 

are included in the definition, except that union hiring halls that refer union 

members or nonunion individuals who pay union membership dues are included 

in the definition whether or not they receive remuneration, as are labor service 

entities or labor service agencies, whether public, private, for-profit, or nonprofit, that refer, dispatch, or otherwise facilitate the hiring of laborers for any 

period of time by a third party. As used in this section the term ‘recruit’ means 

the act of soliciting a person, directly or indirectly, and referring the person to 

another with the intent of obtaining employment for that person. Only persons 

or entities referring for remuneration (whether on a retainer or contingency 

basis) are included in the definition, except that union hiring halls that refer 

union members or nonunion individuals who pay union membership dues are 

included in this definition whether or not they receive remuneration, as are 

labor service entities or labor service agencies, whether public, private, for-profVerDate Aug 31 2005 15:27 Aug 17, 2011 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\061511\66887.000 HJUD1 PsN: DOUGA
13 

it, or nonprofit that recruit, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third party.’’. 

(c) EFFECTIVE DATE.—The amendments made by this section shall take effect 

on the date that is 1 year after the date of the enactment of this Act, except that 

the amendments made by subsection (a) shall take effect 6 months after the date 

of the enactment of this Act insofar as such amendments relate to continuation of 

employment. 

SEC. 5. GOOD FAITH DEFENSE. 

Section 274A(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(3)) 

is amended to read as follows: 

‘‘(3) GOOD FAITH DEFENSE.— 

‘‘(A) DEFENSE.—An employer (or person or entity that hires, employs, 

recruits or refers for fee, or is otherwise obligated to comply with this section) who establishes that it has complied in good faith with the requirements of subsection (b)— 

‘‘(i) shall not be liable to a job applicant, an employee, the Federal 

Government, or a State or local government, under Federal, State, or 

local criminal or civil law for any employment-related action taken with 

respect to a job applicant or employee in good-faith reliance on information provided through the system established under subsection (d); and 

‘‘(ii) has established compliance with its obligations under subparagraphs (A) and (B) of paragraph (1) and subsection (b) absent a showing by the Secretary of Homeland Security, by clear and convincing evidence, that the employer had knowledge that an employee is an unauthorized alien. 

‘‘(B) FAILURE TO SEEK AND OBTAIN VERIFICATION.—Subject to the effective dates and other deadlines applicable under subsection (b), in the case 

of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the 

following requirements apply: 

‘‘(i) FAILURE TO SEEK VERIFICATION.— 

‘‘(I) IN GENERAL.—If the person or entity has not made an inquiry, under the mechanism established under subsection (d) and 

in accordance with the timeframes established under subsection 

(b), seeking verification of the identity and work eligibility of the 

individual, the defense under subparagraph (A) shall not be considered to apply with respect to any employment, except as provided 

in subclause (II). 

‘‘(II) SPECIAL RULE FOR FAILURE OF VERIFICATION MECHANISM.—If such a person or entity in good faith attempts to make 

an inquiry in order to qualify for the defense under subparagraph 

(A) and the verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or 

entity can make an inquiry until the end of the first subsequent 

working day in which the verification mechanism registers no nonresponses and qualify for such defense. 

‘‘(ii) FAILURE TO OBTAIN VERIFICATION.—If the person or entity has 

made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such 

mechanism within the time period specified under subsection (d)(2) 

after the time the verification inquiry was received, the defense under 

subparagraph (A) shall not be considered to apply with respect to any 

employment after the end of such time period.’’. 

SEC. 6. PREEMPTION. 

Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 

1324a(h)(2)) is amended to read as follows: 

‘‘(2) PREEMPTION.—The provisions of this section preempt any State or local 

law, ordinance, policy, or rule, including any criminal or civil fine or penalty 

structure, insofar as they may now or hereafter relate to the hiring, continued 

employment, or status verification for employment eligibility purposes, of unauthorized aliens. A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system described in subsection (d) to verify employment eligibility when and as required under subsection (b).’’. 

14 

SEC. 7. REPEAL. 

(a) IN GENERAL.—Subtitle A of title IV of the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 (8 U.S.C. 1234a note) is repealed. 

(b) REFERENCES.—Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of, or pertaining to, the Department of Homeland Security or the Social Security Administration, to the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) 

is deemed to refer to the employment eligibility confirmation system established 

under section 274A(d) of the Immigration and Nationality Act, as amended by section 3 of this Act. 

(c) EFFECTIVE DATE.—This section shall take effect on the date that is 36 

months after the date of the enactment of this Act. 

SEC. 8. PENALTIES. 

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is 

amended— 

(1) in subsection (e)(4)— 

(A) in subparagraph (A), in the matter before clause (i), by inserting ‘‘, 

subject to paragraph (10),’’ after ‘‘in an amount’’; 

(B) in subparagraph (A)(i), by striking ‘‘not less than $250 and not 

more than $2,000’’ and inserting ‘‘not less than $2,500 and not more than 

$5,000’’; 

(C) in subparagraph (A)(ii), by striking ‘‘not less than $2,000 and not 

more than $5,000’’ and inserting ‘‘not less than $5,000 and not more than 

$10,000’’; 

(D) in subparagraph (A)(iii), by striking ‘‘not less than $3,000 and not 

more than $10,000’’ and inserting ‘‘not less than $10,000 and not more than 

$25,000’’; and 

(E) by amending subparagraph (B) to read as follows: 

‘‘(B) may require the person or entity to take such other remedial action as is appropriate.’’; 

(2) in subsection (e)(5)— 

(A) in the paragraph heading, strike ‘‘PAPERWORK’’; 

(B) by inserting ‘‘, subject to paragraphs (10) through (12),’’ after ‘‘in 

an amount’’; 

(C) by striking ‘‘$100’’ and inserting ‘‘$1,000’’; 

(D) by striking ‘‘$1,000’’ and inserting ‘‘$25,000’’; 

(E) by adding at the end the following: ‘‘Failure by a person or entity 

to utilize the employment eligibility verification system as required by law, 

or providing information to the system that the person or entity knows or 

reasonably believes to be false, shall be treated as a violation of subsection 

(a)(1)(A).’’; 

(3) by adding at the end of subsection (e) the following: 

‘‘(10) EXEMPTION FROM PENALTY FOR GOOD FAITH VIOLATION.—In the case 

of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or 

recruitment or referral by person or entity and in the case of imposition of a 

civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring 

or recruitment or referral by a person or entity, the penalty otherwise imposed 

may be waived or reduced if the violator establishes that the violator acted in 

good faith. 

‘‘(11) AUTHORITY TO DEBAR EMPLOYERS FOR CERTAIN VIOLATIONS.— 

‘‘(A) IN GENERAL.—If a person or entity is determined by the Secretary 

of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of 

subsection (a), or is convicted of a crime under this section, such person or 

entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment 

standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation. 

‘‘(B) DOES NOT HAVE CONTRACT, GRANT, AGREEMENT.—If the Secretary 

of Homeland Security or the Attorney General wishes to have a person or 

entity considered for debarment in accordance with this paragraph, and 

such an person or entity does not hold a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall refer the matter to 

the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, 

and if so, for what duration and under what scope. 

15 

‘‘(C) HAS CONTRACT, GRANT, AGREEMENT.—If the Secretary of Homeland 

Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or 

entity holds a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall advise all agencies or departments holding 

a contract, grant, or cooperative agreement with the person or entity of the 

Government’s interest in having the person or entity considered for debarment, and after soliciting and considering the views of all such agencies and 

departments, the Secretary or Attorney General may refer the matter to 

any appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for 

what duration and under what scope. 

‘‘(D) REVIEW.—Any decision to debar a person or entity under in accordance with this paragraph shall be reviewable pursuant to part 9.4 of the 

Federal Acquisition Regulation.’’; 

(4) by amending paragraph (1) of subsection (f) to read as follows: 

‘‘(1) CRIMINAL PENALTY.—Any person or entity which engages in a pattern 

or practice of violations of subsection (a)(1) or (2) shall be fined not more than 

$15,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year and not more than 10 years, or both, 

notwithstanding the provisions of any other Federal law relating to fine levels.’’; 

and 

(5) in subsection (f)(2), by striking ‘‘Attorney General’’ each place it appears 

and inserting ‘‘Secretary of Homeland Security’’. 

SEC. 9. PROTECTION OF SOCIAL SECURITY ADMINISTRATION PROGRAMS. 

(a) FUNDING UNDER AGREEMENT.—Effective for fiscal years beginning on or 

after October 1, 2012, the Commissioner of Social Security and the Secretary of 

Homeland Security shall enter into and maintain an agreement which shall— 

(1) provide funds to the Commissioner for the full costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act, including (but 

not limited to)— 

(A) acquiring, installing, and maintaining technological equipment and 

systems necessary for the fulfillment of the responsibilities of the Commissioner under such section 274A(d), but only that portion of such costs that 

are attributable exclusively to such responsibilities; and 

(B) responding to individuals who contest a tentative nonconfirmation 

provided by the employment eligibility verification system established 

under such section; 

(2) provide such funds quarterly in advance of the applicable quarter based 

on estimating methodology agreed to by the Commissioner and the Secretary 

(except in such instances where the delayed enactment of an annual appropriation may preclude such quarterly payments); and 

(3) require an annual accounting and reconciliation of the actual costs incurred and the funds provided under the agreement, which shall be reviewed 

by the Office of Inspector General of the Social Security Administration and the 

Department of Homeland Security. 

(b) CONTINUATION OF EMPLOYMENT VERIFICATION IN ABSENCE OF TIMELY

AGREEMENT.—In any case in which the agreement required under subsection (a) for 

any fiscal year beginning on or after October 1, 2012, has not been reached as of 

October 1 of such fiscal year, the latest agreement between the Commissioner and 

the Secretary of Homeland Security providing for funding to cover the costs of the 

responsibilities of the Commissioner under section 274A(d) of the Immigration and 

Nationality Act (8 U.S.C. 1324a(d)) shall be deemed in effect on an interim basis 

for such fiscal year until such time as an agreement required under subsection (a) 

is subsequently reached, except that the terms of such interim agreement shall be 

modified by the Director of the Office of Management and Budget to adjust for inflation and any increase or decrease in the volume of requests under the employment 

eligibility verification system. In any case in which an interim agreement applies 

for any fiscal year under this subsection, the Commissioner and the Secretary shall, 

not later than October 1 of such fiscal year, notify the Committee on Ways and 

Means, the Committee on the Judiciary, and the Committee on Appropriations of 

the House of Representatives and the Committee on Finance, the Committee on the 

Judiciary, and the Committee on Appropriations of the Senate of the failure to reach 

the agreement required under subsection (a) for such fiscal year. Until such time 

as the agreement required under subsection (a) has been reached for such fiscal 

year, the Commissioner and the Secretary shall, not later than the end of each 90- 

16 

day period after October 1 of such fiscal year, notify such Committees of the status 

of negotiations between the Commissioner and the Secretary in order to reach such 

an agreement. 

SEC. 10. FRAUD PREVENTION. 

(a) BLOCKING MISUSED SOCIAL SECURITY ACCOUNT NUMBERS.—The Secretary of 

Homeland Security and the Commissioner of Social Security shall establish a program in which social security account numbers that have been identified to be subject to unusual multiple use in the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 

1324a(d)), as amended by section 3 of this Act, or that are otherwise suspected or 

determined to have been compromised by identity fraud or other misuse, shall be 

blocked from use for such system purposes unless the individual using such number 

is able to establish, through secure and fair additional security procedures, that the 

individual is the legitimate holder of the number. 

(b) ALLOWING SUSPENSION OF USE OF CERTAIN SOCIAL SECURITY ACCOUNT NUM- BERS.—The Secretary of Homeland Security, in consultation with the Commissioner 

of Social Security, shall establish a program which shall provide a reliable, secure 

method by which victims of identity fraud and other individuals may suspend or 

limit the use of their social security account number or other identifying information 

for purposes of the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act. The Secretary may implement the program on a limited 

pilot program basis before making it fully available to all individuals. 

(c) BLOCKING USE OF CERTAIN SOCIAL SECURITY ACCOUNT NUMBERS.— (1) IN GENERAL.—The Secretary of Homeland Security shall establish a program in which the social security account numbers of an alien described in 

paragraph (2) shall be blocked from use for purposes of the employment eligibility verification system established under section 274A(d) of the Immigration 

and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act, 

unless the alien is subsequently admitted lawfully to the United States in, or 

the Secretary has subsequently changed the alien’s status lawfully to, a status 

that permits employment as a condition of the alien’s admission or subsequent 

change of status, or the Secretary has subsequently granted work authorization 

lawfully to the alien. 

(2) ALIENS DESCRIBED.—An alien is described in this paragraph if the 

alien— 

(A) has a final order of removal from the United States; 

(B) voluntarily departs the United States; 

(C) is voluntarily returned; or 

(D) is a nonimmigrant described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) whose work authorization 

has expired and who is not the subject of an application or petition that 

would authorize the alien’s employment. 

SEC. 11. BIOMETRIC EMPLOYMENT ELIGIBILITY VERIFICATION PILOT PROGRAM. 

(a) IN GENERAL.—Not later than 18 months after the date of the enactment of 

the Legal Workforce Act, the Secretary of Homeland Security, after consultation 

with the Commissioner of Social Security and the Director of the National Institute 

of Standards and Technology, shall establish by regulation a Biometric Employment 

Eligibility Verification pilot program (the ‘‘Biometric Pilot’’). The purpose of the Biometric Pilot shall be to provide for identity authentication and employment eligibility verification with respect to enrolled new employees which shall be available 

to subject employers who elect to participate in the Biometric Pilot. Any subject employer may cancel the employer’s participation in the Biometric Pilot after one year 

after electing to participate without prejudice to future participation. 

(b) MINIMUM REQUIREMENTS.—In accordance with the regulations prescribed by 

the Secretary pursuant to subsection (a), the following shall apply: 

(1) IDENTITY AUTHENTICATION AND EMPLOYMENT ELIGIBILITY VERIFICATION

BY ENROLLMENT PROVIDERS.—The Biometric Pilot shall utilize the services of 

private sector entities (‘‘enrollment providers’’), with appropriate expertise, 

which shall be subject to initial and periodic certification by the Secretary, to 

provide— 

(A) enrollment under the Biometric Pilot of new employees by means 

of identity authentication in a manner that provides a high level of certainty as to their true identities, using immigration and identifying information maintained by the Social Security Administration and the Department of Homeland Security, review of identity documents, and background 

screening verification techniques using publicly available information; 

17 

(B) protection of the authenticated information through biometric technology; and 

(C) verification of employment eligibility of such new employees. 

(2) DATABASE MANAGEMENT.—The Biometric Pilot shall provide for databases of identifying information which may be retained by the enrollment providers. Databases controlled by the Commissioner and Secretary of Homeland 

Security shall be maintained in a manner to capture new entries and new status information in a timely manner and to interact with the private enrollment 

databases to keep employment authorization status and identifying information 

current on a daily basis. The information maintained in such databases shall 

be subject to the requirements established pursuant to subsection (e), except 

that— 

(A) use of the data shall be limited to obtaining employment eligibility 

verification only, unless the new employee consents to use the data for 

other purposes, as provided in regulations prescribed by the Secretary; and 

(B) other identifying traits of the new employees shall be stored 

through an encoding process that keeps their accurate names, dates of 

birth, social security numbers, and immigration identification numbers (if 

any) separate, except during electronic verification. 

(3) ACCESSIBILITY TO EMPLOYERS.—Availability of data maintained in the 

Biometric Pilot shall be managed so that any subject employer who participates 

in the Biometric Pilot can obtain verification with respect to any new employee 

enrolled with any enrollment provider serving in the Biometric Pilot. 

(4) LIMITATIONS RELATING TO BIOMETRIC DATA.—Any biometric data maintained in the Biometric Pilot relating to any new employee shall be— 

(A) encrypted and segregated from identifying information relating to 

the new employee, and 

(B) maintained and linked to identifying information relating to the 

new employee only by consent of the new employee for the purpose of 

verifying employment eligibility or approved correction processes or for 

other purposes specifically authorized by the employee as provided in regulations prescribed by the Secretary. 

(5) ACCURACY OF ASSOCIATION OF DATA WITH ENROLLED NEW EMPLOYEES.— The enrollment process under the Biometric Pilot shall be managed, in the case 

of each new employee enrolled in the Biometric Pilot, so as to result in the accurate association of data consisting of name, date of birth, social security number, and immigration identification number (if any) with the established identity of the new employee. 

(6) LIMITATIONS ON ACCESSIBILITY OF INFORMATION.—Data stored in Biometric Pilot relating to any enrolled new employee shall not be accessible to any 

person other than those operating the Biometric Pilot and for the sole purpose 

of identity authentication and employment eligibility verification in connection 

with the new employee, except— 

(A) by the written consent of the new employee given specifically for 

each instance or category of disclosure for any other purpose as provided 

in regulations prescribed by the Secretary; or 

(B) in response to a warrant issued by a judicial authority of competent 

jurisdiction in a criminal proceeding. 

(7) PUBLIC EDUCATION.—The Secretary shall conduct a program of ongoing, 

comprehensive public education campaign relating to the Biometric Pilot. 

(c) EMPLOYER RESPONSIBILITIES.—In accordance with the regulations prescribed 

by the Secretary pursuant to subsection (a), the following shall apply: 

(1) USE LIMITED TO ENROLLED NEW EMPLOYEES.—Use of the Biometric Pilot 

by subject employers participating in the Biometric Pilot shall be limited to use 

in connection with the hiring of new employees occurring after their enrollment 

in the Biometric Pilot. 

(2) USE FOR LIMITED PERIOD.—Use of the Biometric Pilot by any subject employer participating in the Biometric Pilot in connection with any new employee 

may occur only during the period beginning on the date of hire and ending at 

the end of the third business day after the employee has reported for duty. Use 

of the Biometric Pilot with respect to recruitment or referral for a fee may occur 

only until the first day of such recruitment or referral. 

(3) RESPONSIBILITY OF EMPLOYERS TO ENROLL NEW EMPLOYEES.—In connection with the hiring by any subject employer of a new employee who has not 

been previously enrolled in the Biometric Pilot, enrollment of the new employee 

shall occur only upon application by the subject employer submitted to an enrollment provider, together with payment of any costs associated with the enrollment. 

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(4) LIMITATIONS ON SELECTIVE USE.—No subject employer may use the Biometric Pilot selectively to verify any class, level, or category of new employees. 

Nothing in this subparagraph shall be construed to preclude subject employers 

from utilizing the Biometric Pilot in connection with hiring at selected employment locations without implementing such usage at all locations of the employer. 

(d) EMPLOYEE PROTECTIONS.—In accordance with the regulations prescribed by 

the Secretary pursuant to subsection (a), the following shall apply: 

(1) ACCESS FOR EMPLOYEES TO CORRECT AND UPDATE INFORMATION.—Employees enrolled in the Biometric Pilot shall be provided access to the Biometric 

Pilot to verify information relating to their employment authorization and readily available processes to correct and update their enrollment information and 

information relating to employment authorization. 

(2) RIGHT TO CANCEL ENROLLMENT.—Each employee enrolled in the Biometric Pilot shall have the right to cancel such employee’s enrollment at any time 

after the identity authentication and employment eligibility verification processes are completed by the subject employer described in subsection (c)(3). Such 

cancellation shall remove from the Biometric Pilot all identifying information 

and biometrics in connection with such employee without prejudice to future enrollments. 

(e) MAINTENANCE OF SECURITY AND CONFIDENTIALITY OF INFORMATION.— (1) IN GENERAL.—Every person who is a subject employer participating in 

the Biometric Pilot or an officer or contractor of such a subject employer and 

who has access to any information obtained at any time from the Department 

of Homeland Security shall maintain the security and confidentiality of such information. No such person may disclose any file, record, report, paper, or other 

item containing information so obtained at any time by any such person from 

the Secretary or from any officer or employee of the Department of Homeland 

Security except as the Secretary may by regulations prescribe or as otherwise 

provided by Federal law. 

(2) PENALTY FOR DISCLOSURE IN VIOLATION OF SUBPARAGRAPH (A).—Any person described in paragraph (1) who knowingly violates paragraph (1) shall be 

guilty of a felony and, upon conviction thereof, shall be punished by a fine not 

exceeding $10,000 for each occurrence of a violation, or by imprisonment not exceeding 5 years, or both. 

(3) PENALTY FOR KNOWING DISCLOSURE OF FRAUDULENT INFORMATION.—Any 

person who willfully and knowingly accesses, discloses, or uses any information 

which such person purports to be information obtained as described in paragraph (1) knowing such information to be false shall be guilty of a felony and, 

upon conviction thereof, shall be punished by a fine not exceeding $10,000 for 

each occurrence of a violation, or by imprisonment not exceeding 5 years, or 

both. 

(4) RESTITUTION.— 

(A) IN GENERAL.—Any Federal court, when sentencing a defendant convicted of an offense under this paragraph, may order, in addition to or in 

lieu of any other penalty authorized by law, that the defendant make restitution to the victims of such offense specified in subparagraph (B). Sections 3612, 3663, and 3664 of title 18, United States Code, shall apply with 

respect to the issuance and enforcement of orders of restitution to victims 

of such offense under this subparagraph. If the court does not order restitution, or orders only partial restitution, under this subsection, the court shall 

state on the record the reasons therefor. 

(B) VICTIMS SPECIFIED.—The victims specified in this clause are the following: 

(i) Any individual who suffers a financial loss as a result of the disclosure described in paragraph (2) or (3). 

(ii) The Secretary of Homeland Security, to the extent that the disclosure described in paragraph (2) or (3) results in the inappropriate 

payment of a benefit by the Commissioner of Social Security. 

(C) DEPOSIT IN THE TRUST FUNDS OF AMOUNTS PAID AS RESTITUTION TO

THE COMMISSIONER.—Funds paid to the Commissioner as restitution pursuant to a court order under this subparagraph shall be deposited in the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability 

Insurance Trust Fund, as appropriate. 

Æ 

19 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Since the beginning of this new Congress, the new majority has 

repeatedly emphasized four key priorities: growing our economy, 

creating new jobs, decreasing spending and reducing the size of 

government. These are the crucial needs they say that must be focused on; nothing else matters. They say this, but then we see this 

bill, a bill that undermines every one of their stated priorities. 

Rather than grow the economy and reduce the size of government, this bill seems to confuse those goals. It grows the government, dramatically increases government intrusion into all of our 

lives, and adds tens of billions to the burden already shouldered by 

taxpayers. At the same time it shrinks our economy, decimates at 

least one industry, and destroys millions of jobs. All that, and the 

program it mandates doesn’t even work half the time. 

There is no greater proponent of technology in this Congress 

than me. It makes sense to have an electronic system for checking 

work authorization that works and contains sufficient safeguards. 

Since 2005, every serious proposal to fix our broken immigration 

laws has included such an electronic system to ensure we have a 

legal workforce, but it can’t be done alone. Our system has been 

broken far too long for one-sided solutions. The E-Verify provisions 

in each of those former bills were paired with other reforms to fix 

the entire system. Without those other reforms, mandatory EVerify would wreak tremendous damage. 

The majority says this bill is meant to protect American jobs. 

They claim that every time we remove an undocumented worker 

from the country, we open that job for a native-born worker, but 

this ignores the realities of our complex economy. A bill cannot be 

said to protect jobs when it destroys many more jobs than it ostensibly saves. 

Let us be clear, mandatory E-Verify does not mean that undocumented works will pack up and leave the country. Most of these 

workers have been here for many years, and they have family and 

other ties to the country. They aren’t just going to leave because 

this bill passes. Instead employers will simply move these workers 

off the books or misclassify them as independent contractors, which 

this bill does nothing about. This is exactly what happened in Arizona after it made E-Verify mandatory. Rather than leave for other 

States that don’t mandate E-Verify, the vast majority of undocumented workers stayed right in Arizona and either went off the 

books or became independent contractors. 

If implemented nationwide, this would have tremendous costs. 

The Congressional Budget Office has scored other mandatory EVerify bills such as the SAVE Act of 2008, and it has concluded 

that mandating E-Verify without other reforms would cost taxpayers $17.3 billion in lost tax revenues as employers and employees move into the underground economy. We would also see depressed wages and working conditions for all workers as unscrupulous employers are further able to abuse workers and undercut employers that play by the rules. 

This bill also disproportionately affects small businesses, the engines of job creation in America, just when we needs those businesses to create jobs the most. A recent Bloomberg government 

study concluded that mandatory E-Verify would cost small busiVerDate Aug 31 2005 15:27 Aug 17, 2011 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\061511\66887.000 HJUD1 PsN: DOUGA
20 

nesses about $2.6 billion every year to verify new hires through EVerify. But because the bill requires checks on many existing hires 

as well, the cost of small business would be even greater. 

If the intent is to provide jobs, it makes no sense to impose massive costs on small businesses when they would be spending this 

money to actually create jobs. This is essentially economic suicide. 

We also need to take into account that E-Verify is not a perfect 

system. The Social Security Administration has estimated that 

mandatory E-Verify would force 3.6 million workers to go to the Social Security Administration to correct their records or lose their 

jobs. This assumes the worker is even told by an employer that 

there is a discrepancy. An independent study by the Department 

of Homeland Security shows that up to 42 percent of applicants 

who receive tentative nonconfirmations are not informed of the discrepancy by the employer, thereby denying them the right to contest the finding. At a time of 9 percent unemployment, putting millions of American workers’ jobs on the line is grossly irresponsible. 

Finally we must consider that some industries like agriculture 

are at least partially dependent on undocumented workers. Up to 

75 percent of migrant farm workers are undocumented, and the 

percentage is growing. Losing those workers would be devastating. 

American farms would go under, America would be less secure, and 

we would see a mass offshoring of jobs, including all of the upstream and downstream American jobs supported by agriculture. 

This bill appears to recognize this by delaying implementation in 

agriculture and providing some special carve-outs to protect the industry. But upon closer inspection, those carve-outs are just illusions. Carve-outs to the carve-outs require the eventual verification 

of all workers, turning this bill into a ticking time bomb for agriculture and all of the jobs supported by it. 

On this I must make one more point. The bill recognizes that our 

farmers need undocumented farm workers, but the bill then does 

nothing, absolutely nothing, to address this. Instead the bill actual 

increases criminal penalties on farmers and farm workers alike, 

making each of them even more vulnerable than they already are. 

What kind of bill recognizes our dependence on certain workers 

and then ups jail time and fines on those workers and those that 

hire them? 

After paying them lip service, this bill leaves American farms 

and American jobs at risk, and it makes both American and immigrant farm workers further vulnerable to exploitation. Please tell 

me we can do better than that. And please don’t tell me the solution is the H2A reform. Don’t tell me that the solution to this problem is to deport 1.5 million experienced farm workers who are already doing this important work just to replace them with millions 

of new temporary guest workers which would have to come and go 

every single year. This would be a massive and terribly expensive 

undertaking and is simply just never going to work. 

Now I think we have reached a milestone here. We have finally 

recognized that undocumented farm workers fill a need that we 

desperately need filled, and now that we have recognized that, let 

us do something about it. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. GALLEGLY. I thank the gentlelady. 

21 

The gentleman from Texas, the Chairman of the full Committee 

and sponsor of this important bill, Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

The Legal Workforce Act will open up jobs for millions of unemployed Americans. With unemployment at 9 percent, jobs are 

scarce, especially for low-skilled Americans. 

Twenty-four million Americans are unemployed or have given up 

looking for work, yet according to the Pew Hispanic Center, 7 million people are working in the United States illegally. These jobs 

should go to legal workers. 

The E-Verify system allows Social Security numbers and alien 

identification numbers of new hires to be checked against Social 

Security Administration and Department of Homeland Security 

databases. This will help employers determine who is eligible to 

work in the U.S. The program is free, quick and easy to use. 

You have to show your Social Security number to visit the doctor, 

go to the bank, or buy a home. It makes sense that businesses 

would use the same identification to ensure they have a legal workforce by checking the legal status of their employees. 

The E in E-Verify could just as well stand for easy and effective. 

It takes just a few minutes to use and easily confirms 99.5 percent 

of work-eligible employees. 

The Legal Workforce Act requires that all U.S. employers use EVerify to check the work eligibility of new hires in the U.S. 

H.R. 2164 balances immigration enforcement priorities and legitimate employer concerns. It gives employers a workable system 

under which they cannot be held liable if they use the system in 

good faith. 

The bill preempts State E-Verify laws, but respects States’ and 

localities’ inherent authority to condition business license issuance 

and maintenance on compliance with the Federal E-Verify mandate. 

The Legal Workforce Act increases penalties on employers who 

knowingly violate the requirements of E-Verify. It creates a fully 

electronic employment eligibility verification system, and it allows 

employers to voluntarily check their current workforce if done in a 

nondiscriminatory manner. 

Furthermore, the Legal Workforce Act gives USCIS additional 

tools to help prevent identity theft. For example, the bill requires 

DHS to allow individuals to lock their own Social Security number 

so that it cannot be used by imposters to verify work eligibility. 

And it requires USCIS to lock the individual Taxpayer Identification Number or Social Security number of non-U.S. Citizens who 

are deported are voluntarily returned, voluntarily depart, or whose 

work authorization expires so that no one can get a job using those 

same numbers. It also imposes criminal penalties on employers and 

employees who engage in or facilitate identity theft. 

Studies by Westat and USCIS showed that E-Verify’s work eligibility confirmation rates continue to improve as the system is upgraded. 

Last year’s USCIS data shows that 98.3 percent of employees 

were confirmed as work authorized within 24 hours. And a 2009 

Westat report found that those eligible to work are immediately 

confirmed 99.5 percent of the time. 

22 

And importantly, the American people support E-Verify. A recent 

Rasmussen poll found that 82 percent of likely voters ‘‘think businesses should be required to use the Federal Government’s EVerify system to determine if a potential employee is in the country 

legally.’’ 

Unfortunately, many States do not enforce their own E-Verify 

laws, and others only apply E-Verify in a very limited way. The 

Legal Workforce Act will help ensure that employers from every 

State are on equal footing when it comes to hiring employees. This 

bill could open up millions of jobs for unemployed Americans. 

Mr. Chairman, before I yield back, I want to thank our witnesses 

for being here today and look forward to a very informative hearing, but I would also like to single out and especially thank our colleague Ken Calvert, who has been a partner in this effort for—Ken, 

how many years now have we been working on this? 

Mr. CALVERT. A long time. 

Mr. SMITH. A long time, many years. And I think we are getting 

to the point where we can pass a good bill. But thank you for being 

here. 

Thank you, Mr. Chairman, I yield back. 

Mr. GALLEGLY. I thank the gentleman from Texas. 

Our next speaker will be the gentleman from Michigan, the 

former Chairman of the full Committee and current Ranking Member of the full Committee, my good friend Mr. Conyers. 

Mr. CONYERS. Thanks, Chairman Gallegly. 

This is in some ways a traditional breakdown of views between 

labor and the business sector in our country. I have statements 

from the president of the AFL-CIO, the United Farm Workers, 

church organizations, American Civil Liberties Union, the National 

Immigration Forum all telling me that this is a measure that we 

ought to move very carefully on. And so from the outset, since 

there is always a possibility that this bill might happen to get accepted or get through the Senate some kind of way, we are dangerously close to the possibility of getting legislation. What that 

means to me is we are going to need more than one hearing. 

I want to say that very clearly in advance, and I say that in the 

presence of the distinguished full Committee Chairman as well as 

the Subcommittee Chairman. I can see now we are going to need 

another hearing on this matter. But why? 

Mr. GALLEGLY. Would the gentleman yield on that? 

Mr. CONYERS. Of course. 

Mr. GALLEGLY. Just to set the record straight, and, of course, we 

want to make sure that we fully review the text of this bill, but 

I would remind the gentleman that this Subcommittee already had 

a hearing on E-Verify in February, so this is our second hearing. 

Mr. CONYERS. Well, there wasn’t any legislation then. 

Ms. LOFGREN. Would the gentleman yield? 

We did raise a concern with the Chairman of the full Committee 

that the bill kept changing. And our staff was up until early hours 

of the morning every day this week. The actual final bill was not 

received by us until 3 o’clock yesterday afternoon. And so I understand there are many things that need to be worked out, but to 

have a legislative hearing on a bill that didn’t exist in its current 

23 

form before 3 yesterday I find troubling and something that when 

we were in the majority we did not do. And I yield back. 

Mr. GALLEGLY. Well, would the gentlelady yield on that, or the 

gentleman? The Committee, the minority did receive a copy of the 

draft bill, if I am not mistaken, a week ago today. Subsequent to 

that there were some changes, I don’t believe of any significant 

substance, which was gone over with your staff yesterday morning. 

And this is not—— 

Ms. LOFGREN. Mr. Chairman, that is incorrect, and I like your 

staff. 

Mr. GALLEGLY. I do, too. 

Ms. LOFGREN. I am not critical of the staff, but the bill was 

changed in ways we consider significant and less than 24 hours 

ago. So I just point that out. It is something that we think is a 

problem. We think there are significant changes. I understand your 

staff has worked very hard to try and refine this. I don’t criticize 

them for that, I just note that the policy of having a legislative 

hearing on a bill that didn’t exist 24 hours ago I find problematic. 

And it is something that when we were in the majority we did not 

do. And I yield back to Mr. Conyers. 

Mr. CONYERS. What I am suggesting in asking for another hearing in advance isn’t whether we had one before when there wasn’t 

a bill or not. So we have three hearings on a measure; what is so 

awful about that? I mean, there are huge implications involved in 

what we are doing here. We get 5 minutes to question four witnesses, to ask them questions. We seldom have time to even have 

a second round because the demands on the floor are so pressing. 

So anyway, I am just throwing it out. Please don’t foreclose that 

possibility. That is why I am asking for it now instead of waiting 

until we all start running out of here and then say, can I have a 

second hearing; and you will say, well, I think this is enough. And 

I think it is not enough. 

Now, back to the substance here. There is one overriding problem 

with this bill: It won’t work. Outside of that it is pretty good. But 

we have some very serious considerations. 

Could I have an extra couple minutes, sir? 

Mr. GALLEGLY. Without objection, the gentleman will be given an 

additional 2 minutes. 

Mr. CONYERS. Thank you very much. 

The first thing is it is going to create an increasing underworld 

of employers going off the books to classify workers as independent 

contractors. In other words, the gamesmanship, if you think there’s 

some going on in immigration and agriculture now, you haven’t 

seen anything yet if the bill that is before us becomes law. It would 

cost lots of tax money that we would lose. It would push undocumented workers—and, by the way, I hope somebody mentions the 

fact that if it weren’t for undocumented workers, I think our agricultural system would collapse. I would like any of the witnesses 

who would like to react to that, please do, and any of my colleagues 

as well. 

I remember we had a hearing once, Ms. Lofgren, where one fellow said that you could get American workers, you don’t even need 

undocumented workers. And we said, well, where would you get 

American workers to do stoop labor in the United States in the 

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21st century? I think everybody here acknowledges the answer is 

that you couldn’t get anybody. You have got to use immigrant 

labor. The question is how do you make it as legal as possible. And 

the way that it is being done here, as our witness Attorney Moran 

will explain in more detail, is that this isn’t going to work. As a 

matter of fact, it is going to cost American jobs because this system 

won’t work, the immigrant system won’t work as it is created here. 

Why? And I conclude because of the error rate that everyone in this 

hall knows is around 30 percent. You can’t have a system with a 

30 percent error rate. It won’t work no matter how many hearings 

we have. And therein lies the problem. 

And so I ask unanimous consent, Chairman Gallegly, to put in 

a Trumka statement, and an American Civil Liberties Union statement, and some church statements as well. 

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

record of the hearing. 

[The information referred to follows:] 

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Mr. GALLEGLY. And I thank the gentleman for his testimony, and 

we will move on with our witnesses. 

Mr. CONYERS. Thank you very much. 

Mr. GALLEGLY. We are very fortunate to have a very distinguished panel of witnesses today. Each of the witnesses’ written 

statements will be entered into the record in its entirety. And I 

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her testimony to 5 minutes in order that we can get into the questioning session. And as I said, your entire statement will be made 

a part of the record of the hearing. We provided the lights there 

to kind of give you a guideline to see how the 5 minutes is moving 

along. 

Our witnesses today, the first one is a very good friend of mine 

and colleague of mine from California, Ken Calvert, who represents 

the 44th District. He was first elected to Congress in 1992. Rep 

Calvert is a graduate of San Diego State University, where he received his bachelor of arts degree in economics; a former small 

business owner, employer of 17 years, and currently sits on the 

House Committee on Appropriations. 

Mr. Barry Ruttenberg serves as the 2011 first vice president of 

the board of National Association of Home Builders. He also is 

president of the Barry Ruttenberg & Associates, Incorporated, in 

Florida, which has developed more than 1,000 homes in the 

Gainesville area. He is a graduate of Northwestern University and 

earned his MBA from Harvard University. I won’t hold that 

against you. 

Mr. Craig Miller is the former president and chief executive officer of Ruth’s Chris Steakhouse, Incorporated, and was the founder 

and chairman of the Miller Partners Restaurant Solutions. From 

May 2005 to May 2006, Mr. Miller served as chairman of the National Restaurant Association, and he holds a bachelor’s degree 

from the University of Central Florida. 

And our fourth witness, Ms. Tyler Moran, is policy director at the 

National Immigration Law Center, where she coordinates the development and implementation of the center’s policy agenda. Prior 

to being appointed policy director, Ms. Moran directed the National 

Immigration Law Center employment policy work. 

With that, we will start with my friend from California Mr. Calvert. 

TESTIMONY OF THE HONORABLE KEN CALVERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. CALVERT. Thank you, Mr. Chairman, and I apologize in advance if I have to leave. We are having a markup at the present 

time, so I may have to go for a vote before questions. Hopefully I 

will be able to be here for the entire hearing. 

I would like to thank you and my good friend Chairman Gallegly, 

Ranking Member Lofgren, the entire Subcommittee for inviting me 

to testify on the Legal Workforce Act, which would require employers to conduct mandatory employment eligibility verification. I 

would like to thank Chairman Smith for the hard work that he and 

his staff have put into the Legal Workforce Act. 

As mentioned, before I came to Congress, I operated several restaurant businesses. I was required by law to hire a legal workforce, 

but there was no tool available to determine if identifying documentation presented at the time of employment was fraudulent. As 

someone here who has actually owned a small business and employed people, I am somewhat offended to say that I would actively 

illegally—or businessmen in general would go off the books and 

hire people. By the way the illegal element would be involved in 

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doing such a thing is pretty bad. Most small businessmen are honest people, and they would do the right thing. 

When I first created employment verification in 1996, we wanted 

to build a system that would utilize existing information processes 

that were reliable, fair and simple to use. At that time and still 

today, every employer is required to file an I-9 form on paper identification documents. The solution was simple: Provide employers a 

way to check that a given name and a Social Security number 

match government records. 

Today E-Verify has over 268,000 employers, representing 900,000 

hiring sites. In fiscal year 2011, they have documented more than 

2.9 million queries run through the system. 

The Legal Workforce Act would essentially make E-Verify mandatory by requiring the Secretary of the Homeland Security to implement a verification process for a mandatory employment 

verification. Of the millions run through the computer E-based system—let us get this off the table about this error rate. Of the millions run through the E-verification system, 98.3 percent of employees are instantly verified, instantly. Individuals who are given a 

tentative nonconfirmation are given 8 business days to contact the 

Social Security Administration or Department of Homeland Security regarding their case. 

Currently 1 percent, 1 percent, of all queried employees choose 

to contest the E-Verify result, and only one-half of them, that is 1/ 

2 of 1 percent, are successful in contesting that the government’s 

information was incorrect. E-Verify is doing its job it was intended 

to do: denying employment to people in the United States not authorized to work. E-Verify is ready for mandatory use. 

The Legal Workforce Act would phase in mandatory requirement 

over 24 months for most employers, with the exception for agricultural labor, which will be given 36 months to comply. As a Member 

from an agricultural State, as is the Chairman, I think it is important to ensure our agricultural community has the labor they need. 

I support parallel legislation to provide a workable guest labor program that includes the necessary safeguards to ensure that guest 

workers leave on time. This should be easier to do, because with 

mandatory employment verification, guest workers will not be able 

to secure a legal job in the United States after their seasonal work 

visa expires. 

The Legal Workforce Act also implements worker protections for 

mismatched Social Security numbers and use of multiple Social Security numbers. The bill provides a good faith exemption for employers who use the program, while increasing the penalties for 

employers who knowingly, knowingly, hire illegal immigrants. 

The Legal Workforce Act is a thoughtful, comprehensive approach to mandatory employment verification, and E-Verify is 

ready to fulfill that obligation. America is ready for mandatory employment verification. Over 80 percent of Americans support this 

program, as mentioned by the Chairman. Employers are required 

by law to hire a legal workforce, and mandatory E-Verify will ensure they are complying with the law. 

While the legal name of the current program is the basic pilot 

program, the effective brand name is E-Verify. Many businesses 

have incorporated the term ‘‘E-Verify’’ into their business and marVerDate Aug 31 2005 15:27 Aug 17, 2011 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\061511\66887.000 HJUD1 PsN: DOUGA
55 

keting plans. I would strongly suggest we enshrine that name to 

provide clarity and continuity for businesses currently using EVerify. 

E-Verify is an extremely effective program, as we have seen from 

recent actions all over the country. Arizona to Rhode Island, mandatory employment verification is quickly becoming a reality. 

As Members of Congress responsible for controlling the border 

and enforcing legal employment, let us build upon what works and 

give the American people what they want, a Federal law mandating employment verification. 

Thank you, and I will be happy to answer any questions. 

Mr. GALLEGLY. Thank you, Ken. 

[The prepared statement of Mr. Calvert follows:] 

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Mr. GALLEGLY. Mr. Ruttenberg. 

TESTIMONY OF BARRY RUTENBERG, FIRST VICE CHAIRMAN 

OF THE BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS 

Mr. RUTTENBERG. Thank you, Chairman Gallegly, Ranking Member Lofgren, Chairman Smith and Members of the Subcommittee. 


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Thank you for this opportunity to testify on H.R. 2164, the Legal 

Workforce Act. My name is Barry Rutenberg, and I am the first 

vice chairman of the Board of Directors of the National Association 

of Home Builders. NAHB appreciates the efforts of Chairman 

Smith and the Subcommittee to work proactively to craft E-Verify 

legislation that will be workable for U.S. employers. 

The immigrant community has historically played a vibrant and 

important role in the construction industry, comprising about 21 

percent of our workforce. However, the influx of illegal immigrants 

into the U.S. is a concern, and NAHB members do not support illegal immigration. Our members do seek workable solutions to effective employment verification, such as the legislation being considered today which would mandate E-Verify for all employees. 

As Congress considers mandating E-Verify, we want to share 

some of our key concerns. First, the program must continue to 

work on the direct employer/employee relationship, holding every 

employer accountable for the work authorization status of direct 

employees, only those whom they had the power to hire and fire. 

The legislation maintains current law in this regard, and NAHB 

strongly supports that decision. 

Second, the legislation must require all entities who refer workers to employers, like union hiring halls and day labor centers, to 

also verify workers. We are pleased to note that legislation does 

create that requirement. 

And third, legislation must have a strong preemption clause creating one set of Federal rules and preventing State and local governments from creating their own patchwork of differing 

verification requirements. NAHB is pleased to note that the legislation includes language to expressly preempt State or local laws relating to hiring, employment or status verification of unauthorized 

aliens; however, we urge the Subcommittee to provide clarity regarding limits to the States’ use of business licensing laws to ensure that States through licensing do not create a new conflicting 

series of immigration regulations related to enforcement. 

Fourth, a mandatory program must contain a robust safe harbor 

for employers in order to ensure that those who use the system in 

good faith will not be held accountable by DHS or by employees for 

errors in the E-Verify system. The draft legislation provides employers with a good faith defense to prosecution and limits employees to recourse under the Federal Tort Claims Act. NAHB believe 

that these safe harbors fairly protect employers who are using the 

system in good faith. 

And fifth, any attempt to mandate E-verify must include provisions to ensure the system is workable for all U.S. employers, including small employers. To that end E-Verify must permit telephonic access to the system so that employers who do not have 

high-speed Internet access, who do not work in traditional office 

settings can comply. The legislation specifically requires the system 

to operate through toll-free telephone and other toll-free electronic 

media. 

E-Verify should allow employers to begin the worker verification 

process as soon as possible in the hiring process to provide businesses with enough time to rectify a tentative nonconfirmation before an employee’s start date. This will also prevent instances 

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where an employee has completed training and started working, 

only to be terminated due to the belatedly received final nonconfirmation. 

NAHB appreciates that the final legislation provides employers 

with the opportunity to begin the E-Verify process on the date on 

which an offer of employment is extended, and also provides that 

the job offer can be conditioned on final verification of the worker’s 

work authorization. 

A mandatory E-verify system must be phased in based on business size, with larger, better equipped employers first. This will 

provide a test of E-Verify’s ability to handle increased demand and 

provide smaller employers time to learn about the system. 

The draft legislation has a 2-year phase-in based on business 

size. With over 7 million employers being brought into the system 

and the possibility of overload issues occurring, NAHB urges the 

Subcommittee to consider extending the total phase-in time period. 

In conclusion, NAHB recognizes the importance of the employer’s 

role in addressing the illegal immigration issues and looks forward 

to working with you as you move forward on this legislation. While 

mandatory E-Verify must be a first step toward addressing illegal 

immigration issues, it should not be the only step. Congress must 

improve the Nation’s broken immigration and visa system to find 

a better way for workers to legally enter the U.S. For employment 

when our economy needs them. 

I appreciate the opportunity to speak with the Subcommittee 

today, and I look forward to any questions. 

Mr. GALLEGLY. Thank you, Mr. Rutenberg. 

[The prepared statement of Mr. Rutenberg follows:] 

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Mr. GALLEGLY. Mr. Miller. 

TESTIMONY OF CRAIG S. MILLER, CHAIR, NATIONAL RESTAURANT ASSOCIATION (2005–2006), CURRENT MEMBER, 

BOARD’S JOBS AND CAREERS COMMITTEE 

Mr. MILLER. Good morning, Ranking Member Lofgren and distinguished Members of the Subcommittee, thank you very much for 

allowing me to testify today. 

Mr. GALLEGLY. Mr. Rutenberg, could you turn your mic off? 

Thank you very much. 

Mr. MILLER. I could run a dishwasher, but these microphones 

sometimes. 

Distinguished Members of the Committee, thank you for allowing 

me to testify today on behalf of the National Restaurant Association on the Legal Workforce Act, which would create a national EVerify mandate. My name is Craig Miller. I am a lifetime restaurateur that has directly created over 40,000 jobs during my restaurant career. I served as chairman of the board of directors of the 

National Restaurant Association from 2005 to 2006, and I am currently serving as a member of the Board’s Jobs and Careers Committee, which has policy oversight at the association over employment verification issues. 

For many years the National Restaurant Association has provided input on the best ways to improve the E-Verify program. 

After reviewing a draft of the Legal Workforce Act, we are pleased 

to see that our concerns are being taken seriously, while so many 

other attempts to move forward without careful consideration of 

the impact of such a mandate on employers could have had devastating effects. 

As you may know, many of our members and their suppliers 

have been earlier adopters of the voluntary E-Verify program. 

Some owners have been requiring the use of E-Verify by their operations back as early as 2006. Our members use the program, and 

the association itself also uses the program and have found EVerify to be both cost-effective and fast in helping guarantee a 

legal authorized workforce. 

I would like to outline some improvements that the Federal EVerify program should have to gain broad support within our industry and compare those potential improvements to the version of 

the Legal Workforce Act we have been able to review. 

First, there needs to be one law of the land. Out of frustration, 

States and local communities have responded to the lack of action 

at the Federal level with a patchwork of employment verification 

laws, leaving employers who must deal with a broken legal structure exposed to unfair liability and the burden of numerous State 

and local laws. Under this act States and localities are preempted, 

preempted, from legislating different requirements or imposing additional penalties. But they may decide to revoke a business license 

for failure to participate in the program as required under Federal 

law. 

Second, special consideration for small business must be made. 

Smaller employers do not have universal access to high-speed 

Internet connections, are less likely to have human resource staffs 

or legal staffs, and in our industry, unlike others, management 

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does not work at a desk or behind a computer all day. Thus we are 

glad to see that the Legal Workforce Act calls for the creation of 

a toll-free telephonic option for doing E-Verify inquiries and allows, 

but does not mandate, the copying of additional documents. 

Third, to maintain an equal playing field, the association believes 

an E-Verify mandate should be applicable to all employers in our 

industry, all employers. However, we understand that small businesses may need more help and more time to adapt. Thus we are 

encouraged by the Legal Workforce Act tiered approach for rolling 

out E-Verify, starting with employers having more than 10,000 employees and ending 3 years after enactment with agricultural employees. 

As the president and CEO of Ruth’s Chris Steakhouse, I implemented E-Verify in 2006, and I can tell you it works. 

Fourth, there is a good tool that employers should be allowed to 

use that is unavailable under the current E-Verify framework. Currently employers are not allowed to preverify prior to hire. In essence, a business owner has to hire someone before they can even 

check whether they are legally able to work in this country. The 

association supports the options to check the employment authorization status of job applicants at the time of a job offer. Encouraging job applicants to self-check and allowing them to fix any errors before they begin employment is a very good approach. 

Fifth, the association supports the inclusion of the strictly voluntary reverification provision, but objects to mandatory 

reverification provisions of the entire workforce. We have been 

using I-9s since the late 1990’s. One of the association’s foremost 

concerns is to ensure that any new E-Verify mandate does not become overly costly or burdensome for our industry and others. 

Sixth, the employer needs to be able to affirmatively rely on the 

responses to the inquiries into the E-Verification system. With the 

rate of acceptance now well into over 99 percent, as Chairman 

Smith said, employers would like to have the tools to determine in 

real time or near real time the legal status of a prospective employee or applicant to work. The association appreciates that, as we 

understand the Legal Workforce Act, 13 days after the initial inquiry there will be a final response for those that do not come back 

as work authorized during the initial inquiry. 

The association agrees that employers who knowingly employ unauthorized aliens ought to be prosecuted under the law. Respect for 

the law is very important. The current ‘‘knowing’’ legal standard 

for liability, also found in the Legal Workforce Act, is fair and objective and gives employers some degree of certainty regarding 

their responsibilities under the law and should therefore be maintained. Penalties should not be inflexible, and we would urge you 

to incorporate statutory language that allows enforcement agencies 

to mitigate penalties based on the size of the employer and the 

good-faith effort that employers are taking to comply, rather than 

tying to specific, nonnegotiable dollar amounts. 

Eight, the association objects to the expansion of antidiscrimination provisions beyond what is found in current law. However, we 

understand that those wrongfully harmed by the system should 

have some mechanism to seek relief. Thus we support the Legal 

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Workforce Act’s provision that allows these wrongfully harmed employees to seek relief under the Federal Torts Claims Act. 

Ninth, the Federal Government will need adequate funding to 

maintain and implement an expansion of E-Verify. The cost should 

not be passed on to the employer with fees or inquiries or through 

other mechanisms. This association supports the Legal Workforce 

Act provision that keeps the requirements as in current law where 

an employer does not need to keep copies of driver’s license, Social 

Security cards, et cetera. 

Mr. GALLEGLY. Mr. Miller. 

Mr. MILLER. Part of the government’s effort to roll out E-Verify 

to all employers should be closing loopholes for unauthorized workers. In the National Restaurant Association’s opinion, notwithstanding a few clarifications, a broad Federal E-Verify mandate 

that is both fast and workable for business of every size under 

practical, real-world working conditions. I thank you for the opportunity to speak with you today. 

Mr. GALLEGLY. Thank you, Mr. Miller. 

[The prepared statement of Mr. Miller follows:] 

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Mr. GALLEGLY. Ms. Moran. 

TESTIMONY OF TYLER MORAN, POLICY DIRECTOR, 

NATIONAL IMMIGRATION LAW CENTER 

Ms. MORAN. Thank you. Thank you, Chairman Gallegly and 

Ranking Member Lofgren, for the opportunity to testify on E-Verify 

and share my thoughts on the Legal Workforce Act. The National 

Immigration Law Center has analyzed and advocated for improvements in E-Verify since it was first implemented, and I have personally work on the program since 2003. 

Despite what we have heard today, the Legal Workforce Act is 

not going to create jobs, but it will result in the loss of jobs for hundreds of thousands of American workers at a time of 9 percent unemployment. And because the bill doesn’t legalize the 8 million undocumented workers in our economy, it is going to result in billions 

of dollars in lost tax revenue, in addition to criminalizing both 

farmers and workers in the agricultural industry. And as Mr. Conyers points out, it doesn’t work. Fifty-four percent of undocumented 

workers who are put through the system are not detected. 

So I want to start out by addressing the error rates. As a percentage it might sound very impressive and like the system works, 

but when you look at the actual numbers, it is very, very concerning. Making E-Verify mandatory is going to force anywhere 

conservatively from 1.2 million to 3.4 million workers to stand in 

line at a government agency or lose their jobs, and close to a million workers are going to lose their jobs. 

And I think that the Legal Workforce Act is actually going to increase the number of workers that are going to lose their jobs because it now allows and even encourages prescreening of employment eligibility. Right now this is prohibited. It is very concerning 

that it would be allowed because currently of the employers that 

illegally prescreen workers and discover that their worker has an 

error, 33 percent of them never offer them the job. And of those 

workers who aren’t offered a job, it takes almost half of them 2 

months or longer to find their next job. 

I want to highlight a story of a U.S. citizen that called us for 

help because she is one of 80,000 workers that lost their jobs in FY 

2010. Her name is Jessica. She applied for a job at a good-paying 

telecommunications company in Florida. Her employer told her 

that she had an error, so she went to the Social Security Administration. She had her name changed, and so she had to fix the 

record. They told her it was okay. 

She went back to the employer. The employer said, sorry, you are 

not confirmed. She drove back to Social Security. Social Security 

said, our records are fine, you should be fine. She went back to her 

employer, and the employer said, I am sorry, but the system can’t 

confirm you, I have to fire you. Despite pleas to SSA, DHS, the tollfree hotline, she didn’t get her job back, and she was out of work 

for 3 months over the Christmas holiday. And she now has a lowerpaying job. 

Like Jessica’s experience with E-Verify, the Legal Workforce Act 

doesn’t include any real due process for workers who were fired due 

to this system. 

82 

I also want to point out that this bill provides absolutely no protections for workers. Sixty-six percent of workers report that their 

employer has taken some type of adverse action against them by 

firing them, demoting them, giving them lesser pay. And, in fact, 

I think, Mr. Smith, you highlighted that if you reverify the workforce, you have to do so in a nondiscriminatory manner. That language is not in the final copy of the bill, if I am correct. 

On the economy, if the Legal Workforce Act is passed without legalizing the workforce, the results are going to be devastating. Undocumented workers are not going to leave the country because of 

the Legal Workforce Act. They and their employers are simply 

going to move off the books into the cash economy, or they are 

going to be misclassified as independent contractors. I think Ms. Lofgren noted the CBO score of $17 billion in lost tax 

revenue. Arizona, that law has been in effect for 3 years, and guess 

what? It hasn’t worked. People didn’t go home, they didn’t leave 

the State. Eighty-three percent of workers still in the State, and 

they have gone off the tax rolls, or they have reappeared as independent contractors. 

The Legal Workforce Act also fails to recognize the needs of agriculture, I think, as Mr. Conyers and Ms. Lofgren have pointed out, 

up to 75 percent of which is undocumented. There is this illusion 

of a carve-out that really isn’t a carve-out because of the 

reverification. And the bill incentivizes companies to rely on labor 

contractors who aren’t the true employer to get around the 

verification requirements. So while the bill goes after union hiring 

halls and day labor centers, it lets these labor contractors get off 

scott-free. 

So what are the solutions? I know this bill has been sold as a 

commonsense solution, but it is anything but that. I know people 

are frustrated with unemployment, everyone is frustrated, but this 

just isn’t the answer. It is just a fantasy to think that if we put 

an employment verification system on line that people are going to 

leave the country. It is just not going to happen. It is not how the 

labor market works, and I think Cato Institute has testified that 

it is not a 1-to-1. 

So I have included a number of recommendations in my written 

testimony, but I want to highlight three for what it takes to create 

a system that works, and I have done a lot of thinking about this. 

One, you have to do it when you legalize the undocumented workforce so you don’t just kick them off the rolls. An immigration reform bill would increase GDP by a cumulative amount of $1.5 trillion over 10 years. 

Two, you have to have real due process. Workers cannot be fired 

because of a system and have no recourse. 

And three, the system needs to be phased in over a longer period 

of time, with performance evaluation, database accuracy, employer 

misuse to ensure that it is working as you all actually intend it to. 

So this bill doesn’t make sense for a lot of reasons. Not only is 

it the antithesis of big government conservatism, but in a year 

when Congress is talking about cutting budgets and only funding 

high-performance programs, this program just doesn’t make the 

cut. Thank you. 

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

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[The prepared statement of Ms. Moran follows:] 


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Mr. GALLEGLY. Ms. Moran, in your written testimony, and as you 

elaborated in your verbal testimony that workers won’t leave the 

country if E-Verify is mandated, you did say that pretty specifically 

in your opinion. 

Ms. MORAN. Yes. 

Mr. GALLEGLY. But isn’t it true that illegal immigrants are leaving States that institute E-Verify mandates? In fact, just last week 

in the Atlantic Journal Constitution published an article entitled 

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ing Georgia Behind,’’ outlining how illegal immigrants are leaving 

the State since they cannot find jobs after the State mandated 

businesses use E-Verify. That is a common known thing at least in 

the State of Georgia. 

In your written testimony, page 3, you point out that the construction industry has a 20 percent unemployment rate. The home 

builders who are actually in the construction trade are sitting at 

this table with you, to your right, now supporting Legal Workforce 

Act. Do you think that you know better what is best for the industry than those who actually are in the industry? 

Ms. MORAN. Well, I don’t purport to know that, but let me first 

address the issue about people leaving. There have been no formal 

studies about E-Verify except in Arizona. And I think that you received a letter from one of the authors of the study from the Public 

Policy Institute of California, which said that 83 percent of workers 

actually stayed in the State. And I believe he said that if it is mandated, that you wouldn’t even see as many people leave who they 

left in Arizona, because interstate migration is much different than 

leaving the country. So that is the only real actual study that we 

have. 

Again, I know people are frustrated with unemployment, but this 

program doesn’t solve it. 

Mr. GALLEGLY. What will they do if they can’t find a job? 

Ms. MORAN. What will who do? 

Mr. GALLEGLY. Those that are illegal, and they are E-Verified, 

and the employer won’t hire them, what will they do? 

Ms. MORAN. Well, what will happen is the employers will just 

move them off the books in the cash economy. I mean, our economy 

would be decimated if 8 million workers simply disappeared. I 

mean, think of not only—— 

Mr. GALLEGLY. Even with the increased penalties. 

Ms. MORAN. Excuse me? 

Mr. GALLEGLY. Even with the increased penalties. 

Ms. MORAN. In Arizona you lose your business license, you are 

fined, you got the sheriff going after you. Half the employers in Arizona aren’t even using the program, and of those who do, ICE has 

found that employers are coaching workers about how to get 

around the system and teaching them which documents to present 

to get around the system, and this doesn’t bill doesn’t address that. 

Mr. GALLEGLY. I thank the gentlelady. 

Mr. Miller, you know, there is a lot of discussion among the 

ranks that illegal immigrants only take jobs that American citizens 

will not take. We continue to hear that. 

Recently a company in your industry, Chipotle, a large national 

corporation formerly owned by, I believe, the McDonald’s Corporation, and I think—what do they have, 1,000 stores, plus or minus? 

A large, large operation. ICE found out that they had many illegals 

working for them and cracked down, and they were terminated. 

And, of course, Chipotle executives and the corporation was fined, 

and that process is going on. 

Now, with thousands of employees that were illegal that were 

put away from—taking their jobs away, how in the world is 

Chipotle able to survive now that all of these illegal immigrants 

96 

that were working there—did they have to close down their doors, 

or did they have any Americans that applied for any of those jobs? 

Mr. MILLER. I didn’t hear, Mr. Chairman, that any of the restaurants closed. In reality what has been happening, and it happened with personal experiences in the business that I owned and 

operated, is in using E-Verify, when an undocumented worker is 

exposed, they go across the street and get another job. That is what 

has been happening. That is in real life. 

Mr. GALLEGLY. That is really kind of where I wanted to go, and 

my time is running out, but the fact is there were American unemployed people standing in line to take those jobs; is that correct? 

Mr. MILLER. Yes, sir. 

Mr. GALLEGLY. Number two, when ICE went in and did the enforcement, they enforced sanctions against the employers, which is 

all well and good, and I support that, but they didn’t do a doggone 

thing to the thousands of people that working there illegally. They 

just went down the street or across the street and went to work 

somewhere else; is that correct? 

Mr. MILLER. That is correct. 

Mr. GALLEGLY. That is under current law, correct? 

Mr. MILLER. Yes. 

Mr. GALLEGLY. Thank you very much. 

At this time I would yield to the gentlelady from California Ms. 

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I was reading the op-ed piece that Mr. Miller posted in the Fort 

Worth Star Tribune a number of years ago, and here is what that 

op-ed piece that he wrote says: ‘‘The economic consequences of removing the 1 in 20 employees who are undocumented from America’s workforce would be devastating. The restaurant industry, the 

Nation’s largest private-sector employer, sustains 12.5 million jobs 

in restaurants directly and millions more in other industries.’’ 

It goes on to say, ‘‘Clearly we can’t fix our broken immigration 

laws simply by enforcing them more stringently. We need to make 

them reflect the law of supply and demand and the need to secure 

our borders. Only by reforming immigration policy in this way will 

we improve enforcement and strengthen America’s economy, securities and values.’’ 

I ask unanimous consent to put this op-ed piece into the record. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Ms. LOFGREN. Ms. Moran, you studied this over a period of time 

as an academic, and we throw—what is it they said? There are lies, 

darn lies, in statistics? But I think it would be helpful if we could 

get actually a picture that is complete, because—and I am asking 

you to do that. In fact, it is true that most of the people who use 

this system get an instant verification. I mean, it is in the nineties, 


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that is correct. There are two questions about that. We have, I believe, an analysis I would like you to address that somewhere in 

the neighborhood of half of the people who really aren’t eligible to 

work are cleared in that system anyhow. That is one of statistics 

that has been thrown out. 

The other thing, DHS had an independent study done, and they 

said that in the case—that about 42 percent of applicants who are 

dinged on the system are never told, and so they don’t have a 

chance. If they actually are eligible to work, they don’t have a 

chance to prove that up because nobody ever told them what the 

issue was. 

And then the second statistic I would like to you throw some 

light on is that when there are contests, what is the outcome? And 

I think that when people contest the dinging, my understanding is 

that more than half of them actually prove up that they are lawfully here. So if 42 percent are never told, that is a bunch of Americans presumably who actually had a right to work, but they 

weren’t told, and now the government is going to keep them unemployed at a time of 9 percent unemployment. 

The second statistic I would like you to—set of statistics—to 

identify is what this means across the entire American workforce. 

I talked to my daughter, a lawyer in San Jose. I say, look, there 

is an error rate of about a percent. She said, oh, my God, you 

would never do that in business. She is a corporate lawyer. I mean, 

if you had that kind of error rate in the business she is in, it would 

be catastrophic. Could you address how many millions of American 

citizens are likely to be unemployed because of defects in the database? 

Ms. MORAN. Okay. Let me try to break this down. So a lot of us 

have been operating off this the Westat study, which DHS commissioned over a number of years, and they use a statistical model. 

And so their model says, as I think someone pointed out, a little 

under 1 percent of U.S. Citizens and legal workers are improperly 

dinged by the system, and about half of those who are improperly 

dinged never correct their records—never are able to correct their 

records for numerous reasons. Forty-two percent of employers don’t 

notify them, they just can’t correct their records with SSA like Jessica did. And so if you extrapolate those out, it is a little bit over 

a million people in a mandatory system having to go to correct 

records. 

I want to point out, though, whenever employers have audited 

their own data, they have come up with much higher rates. So L.A. 

County, for example, audited their own use of E-Verify and found 

a 2.3 percent error rate, not a .8 percent error rate. And Intel a 

couple of years ago announced that they had a 12 percent error 

rate, all of these people that had been cleared. 

So I guess the point is that we do have a statistical model, and 

I think it is alarming in and of itself that there are a few million 

workers that could be affected, but then you also have real-life experiences. And I think you know SSA did their own run on the 

numbers, and they said 3.6 million people would come to their offices. 

What happens when people contest, I think that was your question, sort of what is the outcome? So approximately 1 percent are 

100 

authorized, they should never have been dinged, and half of them 

can correct. That means half can’t correct. We estimate that a little 

under a million people in a mandatory system will not be able to 

correct their records, and they will lose their jobs. This is why the 

lack of due process is really, really concerning, because they can’t 

get their job back, they can’t get their wages back. And that is 

what is happening under the current system. 

On the 54 percent of workers that can get through, I mean, right 

now if I present a legitimate document, the system can’t detect 

that, and that is what is happening in Arizona. Employers know 

that, you know, the State driver’s license won’t be detected by the 

system, and so they coach workers in providing that document. 

This bill doesn’t address that at all. And I think, you know, getting 

all 50 States to give up their driver’s license data, I think we tried 

that in REAL ID, and they said no. 

Mr. GALLEGLY. The time of the gentlelady has expired. 

Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

First of all, I want to thank our witnesses. We heard some powerful testimony in favor of the bill today, and that is much appreciated. 

Congressman Calvert, let me address my first comment to you. 

You made a very good case for why E-Verify works, both from a 

personal business owner’s point of view, as well as being able to 

quote the various figures that back up our case. You actually updated my figures. I didn’t realize there are now 268,000 employers 

who voluntarily use E-Verify, and I know that about 1,300 more 

businesses are now voluntarily using the program every week. So 

clearly it works. 

And you and I both use the figure that 99.5 percent of work-eligible employees are immediately confirmed. By the way, that may 

make it the most effective government program in existence. I don’t 

know of any other government program that works 99.5 percent of 

the time. 

I basically just want to give you an opportunity to see if there 

is any other way you feel that we can demonstrate that the program works. 

Mr. CALVERT. Well, first let me just make a point, too, Mr. Chairman. Thank you for your question. I certainly take exception to the 

assumption that mandatory E-Verify would turn law-abiding employers into lawbreakers because they don’t want to comply with 

the law. 

I was in private business, I was in the restaurant business, all 

my life as a family business. We comply with the law. And most 

small business people I know, 99 percent of them comply with the 

law. They don’t go out of their way to put employees off the books 

in the so-called cash economy, whatever the hell that is. 

These academics that make these arguments never been in business in their life. They have never employed a person in their life. 

They don’t even know how the system works to employ an individual or how the economy works. So I just want to make that 

point. 

One thing about preemption. I think it is important. My own 

county, we have cities and communities that are doing their own 

101 

preemption, I mean, their own law on E-Verify, because they are 

frustrated with the Federal Government. We do need a national 

law because it is pushing—like a State of California which will 

never put an E-Verify law in—pushing a lot of these people that 

are unemployed in the State of California. It already has a 12-1/ 

2 percent unemployment rate. So bordering States that are putting 

in mandatory E-Verify are pushing folks into the State of California. So it is an important bill. 

Mr. SMITH. Thank you, Mr. Calvert. 

Mr. Rutenberg, I appreciated your testimony. Let me ask you the 

question, can small businesses just as well as large businesses comply with E-Verify? I know home builders go from small businesses 

to large entities, and I wanted to see if you thought it was going 

to be equally applicable to both. 

Mr. RUTENBERG. Thank you, Mr. Chairman. 

I believe it is going to be much harder for the small businesses 

to comply. I know that Monday, as a builder, I worked 15 hours 

and was only in my office for about 15 minutes at one point. We 

are on the mobile, on the go, and we would have to count on our 

subcontractors and our vendors to do the E-Verify for themselves. 

We would not be able to control that. 

Mr. SMITH. Mr. Miller made the same point and also pointed out 

that in the bill we have the phase-in last for the small businesses 

to give them an opportunity to gear up. So we actually changed the 

approach on it just because we had understood that small businesses needed a little bit more time, so we took that direction. 

Mr. RUTENBERG. I appreciate that. 

Mr. SMITH. Mr. Miller, let me ask you, you mentioned as far as 

the National Restaurant Association goes and the owners, why 

don’t you support an exemption for some employers of the E-Verify 

system? You made the case, I think correctly, that everybody has 

to play by the same rules. But why don’t you support an exemption 

for some other entity? 

Mr. MILLER. As someone that voluntarily put in e-verification, I 

saw what happened when it was not equally applied to all businesses. The employees that did not qualify to be employed by my 

company would literally walk across the street to a competing business. And this is one of those cases where we need a Federal law 

that will provide equal playing fields for all businesses to tap into 

the legal workforce. 

Mr. SMITH. Thank you, Mr. Miller. 

Ms. Moran, let me direct my last question to you. Let me give 

you some figures that I think are indisputable. If you do question 

them, let me know. 

The first is I believe that there are 24 million Americans who are 

unemployed or so discouraged they have given up looking for work. 

Of those 24 million unemployed Americans, 19 million do not have 

a college degree, have a high school diploma. There are roughly 7- 

to 8 million people working illegally in the United States. And according to my figures, the most recent unemployment rates for 

Americans with only a high school education—these are the Americans that are competing with these jobs taken by illegal workers— 

21 percent for all Americans, but it is 25 percent unemployment 

102 

rate for Hispanic Americans, 30 percent unemployment rate for 

Black Americans. 

It seemed to me that almost everything you have said—and it is 

a legitimate point of view from your perspective—but almost everything you said seemed to me to put the interest of illegal workers 

ahead of the interest of unemployed American workers. Why 

wouldn’t we want to do everything we could for these unemployed 

Hispanic Americans and Black Americans and open up jobs for 

them? 

Ms. MORAN. I am putting the interest of the economy first and 

the impact that it would have. In terms of the numbers about those 

without a high school diploma, I am not an economist. I mean, you 

know, Dan Griswold from Cato, you know, we are not best buds on 

most things, he is the one that says this is not how the economy 

works, and that, yes, there would be some workers that get jobs, 

but generally it is just not a 1-to-1, and that those workers—— 

Mr. SMITH. I wasn’t talking about 1-1. Thirty percent Black 

Americans with only a high school education are unemployed, 25 

percent Hispanic Americans. They are the ones that would benefit 

from the E-Verify program when we free up those jobs. 

Ms. MORAN. I hear what you are saying. All I am telling you is 

what the economists are saying. Conservative, libertarian, liberals 

are all saying the same thing, which is that it is just not going to 

create jobs for all of those workers. I am not an economist so I 

can’t—— 

Mr. SMITH. I don’t think all economists are saying that, and, 

again, when we hear from employers, when we hear from people 

who had practical experience, it is just the opposite. Those jobs are 

being freed up. But we just have to agree to disagree on that. 

Ms. MORAN. Okay. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. GALLEGLY. Thank you, Mr. Chairman. 

Mr. Conyers. 

Mr. CONYERS. Thank you so much. 

Is there something I am missing in Mr. Miller’s example of 

Chipotle or any other restaurant where they find an illegal working 

and fire him, and that he advises the Committee that the illegal 

just walks across the street and gets another job? Is that the way 

it happens in your estimation or in your experience? This is to Attorney Moran. Am I missing something there that people that get 

fired just go get another job somewhere else where they are not 

checked, and that is why he likes mandatory. 

Ms. MORAN. I am an employer, and I would be affected by EVerify because I have a babysitter, so I just want to put that on 

the record. 

Yeah. I mean, this is going to hurt employers that abide by the 

rules. If you abide by the rule, you are going to use E-Verify. You 

know, half of them will be detected, half of them won’t. But a lot 

of employers simply are not going to comply with the law. 

And I can’t remember if, Chairman Gallegly, you just made this 

point or someone made the point about employers are going to comply. In Arizona, half aren’t complying. Half are not using the system. So it is not like these are bad employers; they just need their 

workforce, and they don’t want to go under. 

103 

Mr. CONYERS. And a person that doesn’t—that can’t get a job 

through E-Verify just goes to an employer that doesn’t use EVerify. 

Well, maybe that is a case for Mr. Miller arguing that we ought 

to make it mandatory, and then everybody will—— 

Ms. MORAN. What I am saying is when it is mandatory, employers still aren’t complying with the law. In Arizona it is mandatory 

for every employer, and half of them are not using it, and others 

are using it improperly. So just because you say it is mandatory 

doesn’t mean it is mandatory. 

That is why the real solution is legalizing the 8 million undocumented workers in our economy. Otherwise everyone is just going 

to be figuring out how to get around the system until you find a 

real solution. 

Mr. CONYERS. So, now, if we effect comprehensive immigration 

reform and get a pathway to legalizing people, then it seems to me 

that you might not even need E-Verify after that. 

Ms. MORAN. Well, you know, we think that is the first thing that 

has to happen if you put E-Verify on line. There are a lot of other 

things. I mean, I would write a very different bill than the Legal 

Workforce Act that included worker protections and phase-ins. 

There are just lots of things that need to do to make it work. It 

has made a lot of improvements, but it is just not there. 

Mr. CONYERS. Well, Mr. Rutenberg, do you think that we could 

work toward an immigration reform system that would clear up 

some of the fundamental problems? You know, the way I am understanding the lawyer here is that this is a kind of an attempt to 

put a band-aid over a bigger problem. Until we deal with immigration as a big subject, with millions of people now having no way 

to get to citizenship, we are going to always be in this fix. 

Mr. RUTENBERG. What we tried to do in our testimony was to say 

that we are starting to see a quiltwork patch of different regulations at the State and the local level, which has the danger of becoming a very difficult environment to work within. We think that 

it is preferable to have a national E-Verify program which still— 

it is in the process of being refined and has made serious improvement. 

Mr. CONYERS. Do you support comprehensive immigration reform? 

Mr. ROBERTS. We believe that we need to have a sustainable, 

workable immigration policy. 

Mr. CONYERS. Well, that means depending on what I mean by 

comprehensive immigration reform. 

Mr. Miller, do you believe in comprehensive immigration reform; 

that is, working out a way for the 8 million people, especially the 

ones that have kids here and been working for years and paying 

their taxes, that we get it straightened out once and for all. 

Mr. MILLER. The first thing I believe in is the rule of law. 

Mr. CONYERS. We all, you know—— 

Mr. MILLER. I question whether everyone takes the same position 

that I do that if the law exists, that you are supposed to enter this 

country in a legal way—— 

Mr. CONYERS. Wait a minute. Do you support comprehensive immigration reform or not? 

104 

Mr. MILLER. No. I don’t think that that is the answer. 

Mr. CONYERS. Okay. That is fair enough. 

Thanks, Mr. Chairman. 

Mr. GALLEGLY. Thank you, Mr. Chairman. 

Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

I want to thank all of the witnesses for your testimony and your 

presence here. 

I would like to first start off with having noted in the opening 

remarks, of which I did not offer one, that Mr. Conyers’ statement 

that agriculture would collapse if we didn’t have illegal workers, I 

represent a big chunk of Iowa, and we do a lot of agriculture, and 

I can tell you that America is not going to go hungry if we enforce 

the rule of law. We will raise the food we need to feed the people 

in this country, and we will export a lot of food to feed people in 

many other countries. We have that ability, and we are resilient 

enough and entrepreneurial enough to take advantage of the opportunities there and create new ones. And with the genetic design 

that we have, we are increasing corn yields 3 to 4 percent a year, 

for example, and we need fewer people instead of more people. 

What happens in business is that you follow the path of least resistance to maximize your profits. For example, I have a constituent that has a 16-row corn planter, and he is a master marketer, sitting at the Internet and on the phones on a regular basis 

maximizing his profits. He bought land in Brazil because it was an 

investment that looked good, and in spite of his big equipment he 

has in Iowa, he has 96 one-row cultivators down there. These are 

men with hoes that work cheaper than he can run equipment. 

So we will do the things necessary as an example to raise the 

food and feed this country and feed the world. I just wanted to 

bring that part up and make an early comment on that. 

I have a number of questions. 

Mr. Miller, I appreciate your testimony, especially on your statement about the approval of the language in the bill that allows for 

a preemployment check. And I have long been aggrieved by existing E-Verify law that requires you to hire the illegals before you 

can verify that you have hired illegal employees, as I appreciate 

your reinforcement of that component of it. And there are a number of standards out there. One of them is Iowa’s drug testing law 

as I wrote the language that would be as a condition of employment, a preemployment test for drug testing or preemployment test 

for legal status. 

I am interested in what you might say about the difference between mandatory and voluntary testing of current or legacy employees. If we don’t make it mandatory for legacy employees, then 

what do you think is the result on the illegal workforce that exists 

in employment today. 

Mr. MILLER. Well, Mr. King, coming from the restaurant industry where people and employees change positions, change companies very frequently, if you looked at it from the way we do in 

terms of turnover of jobs, a lot of entry-level workers, a lot of people work for different companies. Some of our employees work for 

two or three different companies at a time. 

105 

I believe that if we start this process the way this bill is intended, and that we don’t require a pre—that we verify all of the 

existing employees, that this is the best way that we can implement this system on a broad basis and accomplish over a period of 

time what we want to accomplish, and that is make sure that all 

workers in America are legally—are here legally and have the right 

to work in America. 

Mr. KING. Not the whole step, but a good step in the right in the 

right direction, then, to summarize. 

And then there is also a provision in there for agricultural seasonal employees, that if they have been employed by the employer 

in the past in a seasonal business, that they don’t need to be 

verified again. And as an employer in the restaurant business, does 

that—do you look at that and think that that is a special provision 

for an individual profession? I will see it from a seasonal construction business that if I have seasonal employees that have worked 

for me in the past, and they have to be verified when the frost goes 

out every spring, but workers that come in in the San Joaquin Valley would not, what is your view on that from a justice or equity 

standpoint? 

Mr. MILLER. Well, we have a process called the H2B visa for seasonal workers. Our industry, particularly the resort part of our industry, unfortunately right now the Department of Labor is actually creating even higher barriers that prevent the HB2 visa program to work effectively. So I believe that the way this act is written, that we can get through over time and be able to make sure 

that we maintain the viability of all of our businesses. And agriculture is special, to Mr. Conyers’ point. 

Mr. KING. Thank you. 

If I could quickly ask Ms. Moran, you made the comment that 

the bill, the language came out of it that was a nondiscriminatory 

language. And I would point out that if you read the language 

closely, that the words ‘‘nondiscriminatory’’ came out, but the substance of the effect of it remain that one would have to test all the 

employees similarly situated or within that. And as the interpretation that I have is that if you are an employer, and you employ 

10,000 or more, or any number for that matter, and you think that 

you have a problem with illegal workers in a certain area, might 

be sanitation within the plant, you would still be required to run 

all 10,000 of those employees through—under the language that I 

see in this bill, all 10,000 employees through E-Verify if you 

thought you might have had a problem within a small segment of 

your employment base, perhaps 100 of your 10,000. 

You are concerned about nondiscrimination. I think that discriminates against the employer, who in good faith would want to 

have a legal workforce, but would be prohibited from that by the 

burden of having to punch 10,000 names through the computer to 

be able to clean up one segment of this factory. What would be 

your thoughts on that? 

Ms. MORAN. Well, I think we saw from IRCA that there was a 

lot of hiring discrimination when they implemented the employer 

sanctions. I think there was a series of 3 or so GAO reports that 

documented that that actually did happen. So I do think it is imVerDate Aug 31 2005 15:27 Aug 17, 2011 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\061511\66887.000 HJUD1 PsN: DOUGA
106 

portant that if the employer is going to reverify someone, they have 

to reverify everyone. 

Mr. KING. So, what is the problem with an employer reverifying 

a segment of their workforce if, say, it is sanitation, or mechanics, 

or my truck drivers, or bulldozer operators? If I have got no problem with the white collar part of this, but I do have a problem with 

the blue collar, why would you disagree with that philosophically? 

And if I could ask unanimous consent for an additional 1 minute 

so the gentlelady could respond? 

Ms. MORAN. Because from a worker’s perspective, it is really a 

problem. So let us say that you wanted—you know, certain workers 

you expect are undocumented, maybe they are Latino, so you decide to reverify them. Already we have a super high, I would say, 

error rate. 

Mr. KING. Ms. Moran, how would an employee know if they are 

being reverified, and how would an employer discriminate against 

an employee who was a legal worker? 

Ms. MORAN. Because they would be the subject of a database 

error. Naturalized U.S. citizens are 30 times more likely than native-born—— 

Mr. KING. Mr. Smith’s testimony in his opening statement resolved that issue. So how does an employer discriminate against an 

employee? If the employee doesn’t know they are using E-Verify to 

verify that they are a legal worker, the only thing they can do is 

take action against an illegal. 

Mr. GALLEGLY. The time of the gentleman has expired. I will give 

her an opportunity to try to respond, and then we will go to the 

next speaker. 

Ms. MORAN. I am a little bit confused by the question, because 

I am not quite sure how you can know that someone is an illegal 

worker unless you reverify them. It would result in discriminatory 

use. And there aren’t any worker protections. I think there is a line 

that says that you can’t take adverse action or something. There 

are no penalties attached, so right now there is a high level of employer misuse with voluntary users. 

Mr. KING. Mr. Chairman, I would ask unanimous consent to clarify this significant point that we have here. There has been an allegation of discrimination, and I think the witness is the expert and 

can answer. 

Mr. GALLEGLY. Without objection, the gentleman will have 1 

minute for the purpose of clarifying his question. 

Mr. KING. Thank you, Mr. Chairman. 

My point is this, that as an employer, if you had one or several 

employees that you suspected were illegal, and the documentation 

would give you that lack of confidence, so their lawful ability to 

work in the United States, an employer under—the way I would 

propose this language—could then sit down in their HR department, light up their computer, punch the I-9 information into the 

E-Verify database, and verify that they could lawfully work in this 

country for their company. 

If an employer did that, the employee would have no idea that 

that process was taking place. Therefore, if they were a legal employee, zero discrimination could possibly take place. And if they 

were illegal, they would be dismissed according to the intent of this 

107 

congressional legislation. So how does discrimination take place 

under E-Verify? 

Mr. GALLEGLY. Ms. Moran. 

Ms. MORAN. So, first of all, the Westat study, I can’t remember 

if it was this one or the last one, found that when employers— 

when workers who are foreign born, Latino, Asian, foreign-born 

workers, are the subject of an error, they make an automatic assumption that they are undocumented. 

And so the point I am trying to make is that people of color, foreign-born workers are going to be more likely to be the subject of 

this reverification, and when they are, they are therefore going to 

receive more errors and be the subject of more adverse action. So 

it is not direct—it is unintended maybe, or it is indirect discrimination, but it is discrimination. 

Mr. KING. The computer doesn’t know what color they are. I yield 

back. 

Ms. MORAN. But the employer does. 

Mr. GALLEGLY. Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

I ask unanimous consent to have an additional 1 minute to be 

able to yield to the Ranking Member Mr. Conyers, please. 

Mr. GALLEGLY. Without objection. 

Ms. JACKSON LEE. Thank you. I yield 1 minute to the gentleman 

from Michigan. 

Mr. CONYERS. Thank you. 

To my friend Steve King, and I don’t know much about Iowa except that last time I went in with Obama to carry your State, you 

guys there deal in corn, and corn is a machine-sensitive operation. 

There isn’t any stoop labor. You are not picking apples. 

Mr. KING. We used to plant it by hand. 

Mr. CONYERS. You used to. But it is mostly machinery. So the 

kinds of questions that involve the restaurant business and homebuilding is a little bit different, Steve. And that is the only thing 

I wanted to point out. That is why you don’t have this kind of problem much in your State. 

And, by the way, I will probably be back in your State next year. 

Mr. GALLEGLY. Good luck, Mr. Conyers. 

I would yield to the gentlelady from Texas Ms. Jackson Lee. 

Ms. JACKSON LEE. I thank the Chairman very much. And I 

thank the Ranking Member. And let me thank all of the witnesses 

as well. And thank you for allowing me to acknowledge that I was 

in a Homeland Security hearing on radical Muslim issues that delayed me coming here. Another opportunity to set the record 

straight. 

But in any event, in his absence, and I hope to speak to him directly on H.R. 2164, to Mr. Smith, I would greatly appreciate having the opportunity to expand the horizons of E-Verify for an 

amendment that would add comprehensive immigration reform. I 

think it is an excellent vehicle to amend it with the comprehensive 

immigration reform language that many of us have been working 

on for more than a decade. If this is going to be the vehicle that 

is going to travel dealing with the question of immigration, why not 

look at it comprehensively to answer a number of concerns. 

108 

The other question I would like to put on the record—Mr. Smith, 

I am sorry, I didn’t see you there—is I cannot find the basis of 

funding in this particular legislation. And from my perspective— 

and I will ask Ms. Moran at a certain point—it looks as if this bill 

is going to exponentially add costs to the government. And as I understand it, my colleagues on the other side of the aisle are looking 

to slash the budget and, in fact, have no money. 

So I don’t see how we are going to effectively use this without 

tying comprehensive immigration reform, which, Ms. Moran—and 

I am not posing a question—to my knowledge all the bills that I 

have reviewed, including my legislation and other legislation, assesses fees which go back into the Treasury, and therefore it is selfproviding. 

Let me ask Mr. Rutenberg. I am a strong supporter of the home 

builders. I work a lot on the home building issues. I want you to 

build, build, build and employ, employ, employ. We have a strong 

contingent in Texas, as you well know. 

My simple question to you is do you or do you know of your State 

organization, local organization that support comprehensive immigration reform? Do you have that body of thought among your 

members? 

Mr. RUTENBERG. I don’t think that we have a consensus on comprehensive. 

Ms. JACKSON LEE. But you do have some sectors that agree with 

that? 

Mr. ROBERTS. In 160,000 members, I have somebody who agrees 

with almost everything. 

Ms. JACKSON LEE. Well, do you know—have you visited—I am 

not sure, where are you from? 

Mr. RUTENBERG. Florida. 

Ms. JACKSON LEE. Are you familiar with those in Texas? 

Mr. RUTENBERG. I know a quite a number. I have attended your 

meetings frequently. 

Ms. JACKSON LEE. All right. So I would imagine you have seen 

some body of thought in Texas agreeing of comprehensive immigration reform. 

Mr. RUTENBERG. I cannot speak to that. I do know that we 

thought that E-Verify was a good start to this point. 

Ms. JACKSON LEE. Are you against comprehensive immigration 

reform that would allow people to get in line in a second line and 

pay fees, and continue to contribute to the American public, and 

serve in the United States military? 

Mr. RUTENBERG. I personally do not have an opinion for this 

Committee on comprehensive reform. I will tell you—— 

Ms. JACKSON LEE. I thank you. My time is short. Thank you. 

Mr. Miller, I understand you represent restaurants, and is that 

the National Restaurant Association? 

Mr. MILLER. Yes, ma’am. 

Ms. JACKSON LEE. All right. And what is your position on comprehensive immigration reform? 

Mr. MILLER. We tried that back in 2005 and 2006, as I am sure 

you recall. 

Ms. JACKSON LEE. Who tried it? The restaurants tried it? 

Mr. MILLER. No. Our Congress tried it. 

109 

Ms. JACKSON LEE. I don’t know who tried it then. You must not 

be reading the legislation. But what is your answer? 

Mr. SMITH. I think he is referring to the Senate bill. I would give 

him a chance to respond if I were you. 

Ms. JACKSON LEE. The Senate bill didn’t pass. 

Mr. MILLER. Having lived on the front lines of an immigration 

policy or a lack of an immigration policy for my entire career as 

a restaurateur, I looked at this bill—— 

Ms. JACKSON LEE. You are trying to—I don’t want to cut you off, 

but I need to get to Ms. Moran. But what you are saying is I am 

taking anything I can get because you need to have some order. Is 

that my understanding? 

Mr. MILLER. I am here in support of this bill because I think it 

will move—— 

Ms. JACKSON LEE. I got it. When you are desperate, you gotta get 

something, and I appreciate it. 

Ms. Moran, can you now just pose the question to help Mr. Miller, because as I recall, the National Restaurant Association did 

support comprehensive immigration reform during my lifetime in 

the United States Congress. 

Tell us how bad this bill will be in terms of cost, in terms of 

small businesses, and in particular the errors that will now burden 

the Social Security office in order to handle people who are going 

to be discriminated against. 

Ms. MORAN. Yeah. I talked a bit about the error rates, but definitely the impact on the Social Security Administration is going to 

be enormous. And I testified at the hearing last month about that, 

and we can submit that testimony for the record. You know, the 

only—— 

Ms. JACKSON LEE. Maybe you can help Mr. Miller, because that 

is why he is here. 

Ms. MORAN. We have worked together in the past on comprehensive immigration reform—not ‘‘we’’ personally, but certainly we 

have worked with the businesses on a comprehensive immigration 

reform bill that included E-Verify and legalization in the past. I 

think you are referencing the Senate efforts in 2006 and 2007. 

Regarding the costs, we only have one real score on the manda- tory E-Verify program, and it is $17 billion in lost tax revenue. We 

have another score that puts about 5- or 6 billion it costs to actually run the program. 

Ms. JACKSON LEE. Five- or six billion? 

Ms. MORAN. To actually sort of put it on line; not the tax loss, 

but actually running the program. 

I have—I would like to submit for the record, I have got four 

pages of quotes from small businesses saying, ‘‘I don’t want this,’’ 

testifying in Florida and other States saying that they don’t want 

E-Verify; that they don’t have an HR department, that their sister 

does it or their mom does it; that they don’t have the expenses; 

that they can’t handle helping people fix their errors. 

So I know that we have got some business associations here, but 

the Main Street Alliance submitted a letter to this Committee saying this is not good for small business. So I think we have got some 

sort of like big business insider D.C. groups and we have got some 

Main Street groups that are saying this isn’t for them. 

110 

Mr. GALLEGLY. I thank the gentlelady. The gentlelady’s time has 

expired. 

I ask unanimous consent that a June 14, 2011, letter, support for 

the Legal Workforce Act, from the American Council on International Personnel; a June 14, 2011, press release from the U.S. 

Chamber of Commerce supporting the Legal Workforce Act; and a 

June 15, 2011, letter to Chairman Smith from the Society for 

Human Resource Management supporting the Legal Workforce Act 

be made a part of the record for this hearing. 

[The information referred to follows:] 

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Mr. CONYERS. Mr. Chairman, in view of the fact that one of the 

major authors of the bill wasn’t able to stay here for the hearing, 

I would like to renew my consideration of the leadership here that 

we have another hearing on this subject. 


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Mr. GALLEGLY. The gentleman from Michigan’s request is duly 

noted. 

Ms. JACKSON LEE. Mr. Chairman? 

Mr. GALLEGLY. Yes, Ms. Jackson Lee. 

Ms. JACKSON LEE. I would like to submit some information into 

the record, and I would like to add, if you would, to Mr. Conyers’ 

request, and I thank you for duly noting it, is the opportunity to 

have a hearing—and, Ms. Lofgren, let me thank you for your leadership—but to have a hearing on a number of comprehensive immigration reform legislation offered by a number of individuals in this 

Congress, some of which had bipartisan support. I would like your 

consideration. 

But I would like to put into the record two points made with the 

present E-Verify structure. It is indicated that a million people will 

be unemployed, and that the loss of revenue will total now $23 billion based upon the implementation of H.R. 2164. 

Mr. GALLEGLY. With respect to the lady’s first comment, that will 

be so noted. 

As it relates to the unanimous consent request, that will be 

placed into the record under unanimous consent. 

Ms. JACKSON LEE. I thank the gentleman. 

Mr. GALLEGLY. I would like to thank our witnesses today for 

their testimony, and without objection, all Members will have 5 legislative days to submit to the Chair additional written questions for 

the witnesses, which will be forwarded, and ask the witnesses to 

respond as promptly as they can so that the questions and answers 

will be made a part of the record of the hearing. 

Without objection, all Members have 5 legislative days to submit 

additional materials for inclusion in the record. And with that, 

again I thank the witnesses. And the Subcommittee stands adjourned. 

[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

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Æ 


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