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34–662 PDF 2007

IS THE FEDERAL GOVERNMENT DOING ALL IT

CAN TO STEM THE FLOW OF ILLEGAL IMMIGRATION?

HEARING

BEFORE THE

SUBCOMMITTEE ON REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 25, 2006

Serial No. 109–234

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCMIDT, Ohio

BRAIN P. BILBRAY, California

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON REGULATORY AFFAIRS

CANDICE S. MILLER, Michigan, Chairman

CHRIS CANNON, Utah

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

JEAN SCHMIDT, Ohio

STEPHEN F. LYNCH, Massachusetts

WM. LACY CLAY, Missouri

CHRIS VAN HOLLEN, Maryland

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

ED SCHROCK, Staff Director

KRISTINA HUSAR, Professional Staff Member

BENJAMIN CHANCE, Clerk

KRISTA BOYD, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on July 25, 2006 ............................................................................... 1

Statement of:

Gerry, Martin H., Deputy Commissioner, Office of Disability and Income

Security Programs, Social Security Administration; Alfred B. Robinson,

Jr., Acting Administrator, Wage and Hour Division, Employment

Standards Administration, U.S. Department of Labor; Janis Sposato,

Associate Director, U.S. Citizenship and Immigration Services, U.S.

Department of Homeland Security; Matthew C. Allen, Acting Deputy

Assistant Director, Smuggling and Public Safety Division, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security; and K. Steven Burgess, Director, Examinations, Small Business/

Self Employed Division, Internal Revenue Service .................................... 9

Allen, Matthew C. ..................................................................................... 40

Burgess, K. Steven .................................................................................... 54

Gerry, Martin H. ....................................................................................... 9

Robinson, Alfred B., Jr. ............................................................................. 24

Sposato, Janis ............................................................................................ 31

Letters, statements, etc., submitted for the record by:

Allen, Matthew C., Acting Deputy Assistant Director, Smuggling and

Public Safety Division, U.S. Immigration and Customs Enforcement,

U.S. Department of Homeland Security, prepared statement of .............. 43

Burgess, K. Steven, Director, Examinations, Small Business/Self Employed Division, Internal Revenue Service, prepared statement of .......... 56

Gerry, Martin H., Deputy Commissioner, Office of Disability and Income

Security Programs, Social Security Administration, prepared statement

of ..................................................................................................................... 13

Miller, Hon. Candice S., a Representative in Congress from the State

of Michigan, prepared statement of ............................................................. 4

Robinson, Alfred B., Jr., Acting Administrator, Wage and Hour Division,

Employment Standards Administration, U.S. Department of Labor, prepared statement of ........................................................................................ 26

Sposato, Janis, Associate Director, U.S. Citizenship and Immigration

Services, U.S. Department of Homeland Security, prepared statement

of ..................................................................................................................... 33

(1)

IS THE FEDERAL GOVERNMENT DOING ALL

IT CAN TO STEM THE FLOW OF ILLEGAL

IMMIGRATION?

TUESDAY, JULY 25, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m. in room

2154, Rayburn House Office Building, Hon. Candice S. Miller

(chairman of the subcommittee) presiding.

Present: Representatives Miller, Lynch, and Schmidt.

Also present: Representatives Bilbray and Foxx.

Staff present: Ed Schrock, staff director; Rosario Palmieri, deputy staff director; Kristina Husar, professional staff member; Benjamin Chance, clerk; Karen Lightfoot, minority communications director/senior policy advisor; Krista Boyd, minority counsel; and

Cecelia Morton, minority clerk.

Mrs. MILLER. Good morning. I would like to call the Subcommittee on Regulatory Affairs to order.

I certainly want to welcome everyone to our hearing today on the

Federal Government’s ability to enforce current immigration laws

against employers who flout the law by employing illegal workers

with impunity, quite frankly.

If lawmakers are committed to stemming the tide of illegal immigrants across our borders, it is certainly essential to enforce the

laws that we have against employing illegal aliens. It is the promise of these jobs, of course, that entices so many illegal aliens to

leave their homeland, and to risk the perils of a border crossing.

However, through generations of practice, they have learned that

once in America, they are home free, essentially. Many employers

have also come to realize that no one is checking up on them. And

in some industries, this makes the lure of cheap illegal labor almost irresistible.

These immigrants and employers long ago figured out the very

sorry fact that we have only recently become aware of, that the

1986 immigration law was designed to fail. The current system in

place hampers the ability of the Federal Government to enforce immigration laws and to crack down on employers who openly disregard the law.

Let me briefly detail some of the problems that we think are in

the provisions that currently prevent the Federal Government from

being as proactive as one would like us to be.

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No. 1, with respect to documentation, there is a very low level

of certainty that employee documents are valid, because employers

are forced to accept a diverse variety of identification, sort of the

breeder documents and work authorization documentation. Unless

a prospective employee’s i.d. is obviously fake, the employer must

accept it. These identification documents include school i.d. cards,

Canadian driver’s licenses, school report cards and day care or

nursery school records as proof of identity.

Additionally, the 1986 immigration law set the penalties for violating the law very low and the standard for proving the violation

very high. There is no requirement that employers retain copies of

the identification and work authorization documents that they review or any subsequent documentation that they might receive that

pertains to the work authorization of the individual. This of course

not only makes the immigration laws very difficult to enforce, it

also provides a perverse incentive for the proliferation of a fraudulent document and identity theft.

No. 2, the current legal framework puts up firewalls between the

Social Security Administration and the Department of Homeland

Security that prohibit the Social Security Administration from

sharing actionable information about the most egregious violators

of immigration law with the Immigration and Customs Enforcement [ICE], the agency charged with enforcing the 1986 immigration law and of course the 1996 reform legislation as well.

SSA has a data base called the Earning Suspense File that could

be used to crack down on employers who hire illegal workers. However, SSA has no authority to take action against the employer who

submits wage reports that contain what they call ‘‘no matches.’’

Additionally, SSA is interpreting the IRS Code to prevent them

from sharing information derived from wage reports with any other

agency, absent explicit statutory authorization. ICE has indicated

that access to some of this information would be a very valuable

tool to help focus their enforcement activities.

Meanwhile, the IRS is the only agency with both the W–2 information and the enforcement capability, based on their authority to

target individuals who submit fraudulent tax documents. Unfortunately, the IRS seems to have decided as a matter of policy and priority to not pursue these violations. I am sure we are going to get

to that in today’s questioning.

And then No. 3, finally and perhaps most disturbing, is that no

Government entity is really charged with inspections of the I–9

forms, absent reasonable suspicion of wrongdoing. The Department

of Labor has authority to review the I–9 documents, but I–9 inspections occur only as an inquiry of a directed fair labor investigation.

The Department of Homeland Security also has authority to review

I–9s, but they have to rely on tips. And if they are denied access

to the ESF, the Department of Homeland Security has very limited

ability to target private sector employers who consistently violate

our laws.

To use a tongue in cheek example, this would be like asking all

Americans to go ahead and file their taxes in good faith with zero

threat of IRS inspectors ever checking on our submissions.

In summary, Congress has devised a system that asks employers

to be familiar with 30 plus obscure documents under penalty of

3

law, but with a wink and a nod declines to establish a system to

verify compliance of these laws. Quite frankly, it is my personal observation that this pervasive attitude and our very porous border

situation has evolved over several decades. It didn’t just happen

during this Congress or this administration or the last Congress or

the previous administration. As I say, it has happened over a number of decades.

And really again, my personal observation is it is only recently

that the American public, as is often the case, is ahead of the politicians. Because the American public is losing their sense of humor

with the porous border situation and the lax enforcement of our

current immigration laws, Congress finally is developing the political will to focus our attention and resources on this problem.

And I think this is going to be a very, very interesting hearing.

Certainly every administration is bound by the laws that we in the

U.S. Congress pass. It is incumbent on us as Members of Congress

to understand the problem as it exists and to offer some realistic

solutions as well. With that, I would like to recognize the distinguished member from Massachusetts, Ranking Member Lynch, for

his opening statement.

[The prepared statement of Hon. Candice S. Miller follows:]

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Mr. LYNCH. Thank you, Chairman Miller.

First of all, I want to thank the panelists who have come before

us to testify. We have great coverage, Madam Chair, with this

panel. I think we have every angle and every aspect of the problem

that is before us covered by the expertise of the panelists, the IRS,

the Department of Labor, Citizenship and Immigration Services

and also Customs Enforcement.

Just for a little bit of background, before coming to Congress, I

was an iron worker for about 18 years, strapped on a pair of work

boots, went out there and did my job. I worked basically in the private sector, everything was by competitive bid. And it was a continuing frustration for me as a worker, as a manager on a construction project and also as a general foreman, to prepare bids in a

competitive environment only to have our bids undercut by contractors who we knew, we knew were using illegal labor and not paying

them the full wages.

So this is a competitiveness issue. While I certainly am understanding of our immigration problems in the United States, I also

think we owe it to our citizens to give them a fair shake and have

a full and fair opportunity to get good jobs and not have to compete

on illegal lines. I hope that is the beginning of the job we are going

to do here this morning.

As Congress continues to look at how our current immigration

system can be improved, it is important that we keep in mind the

need to protect the rights of workers who are authorized to work

in the United States. It is important to create an atmosphere that

encourages compliance with the law while at the same time ensuring that all authorized workers have a full and fair opportunity to

work.

I am a firm believer that we have operated a system of open borders in this country for a very long time. I don’t believe, as people

say, that 10 million or 12 million people sneaked into America,

sneaked into the United States; 12 million people don’t sneak in

anywhere. We operated with a system of open borders in this country for many years. We shouldn’t be surprised that illegals came

into this country. We also operated a system that allowed them to

come and go to work here under, in many cases, very dubious circumstances.

Today’s hearing will explore the current worker verification system. Under current law, our employers are required after hiring a

worker to check the worker’s Social Security number or other approved documents to verify the worker’s identity and eligibility to

work. Employers must then fill out a form certifying that the worker’s documents have been reviewed and that they appear to be legitimate. Employees can voluntarily participate in the Social Security number verification system, which allows them to check employees’ names and Social Security numbers against the Social Security Administration’s numbers. This system allows employees to

be more proactive in complying with the law.

One of the issues that we need to hear about, however, is whether it would be beneficial to increase the information about employers and employees that could be shared between the Social Security

Administration, the IRS and the Department of Homeland Security. I hope that as part of the discussion, the witnesses here today

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who have joined us will address some of the concerns that have

been raised regarding these proposals. For example, the impact

that sharing tax information would have on taxpayer privacy and

how those concerns can be addressed.

I am also interested in hearing from the witnesses how, with the

increased use of verification systems, we can protect against unfair

and unlawful terminations when employees challenge ‘‘no match’’

results. In looking at employer verification requirements, we can’t

ignore one of the biggest problems with our current system: the administration’s lax enforcement. The Washington Post reported on

June 19, 2006, that between the years 1999 and 2003, worksite enforcement operations, this used to kill me in the field, trying to get

somebody to go out there and inspect, you knew there were foreign

workers, they had Canadian plates and we knew these workers

who were coming over the border from Canada in New England.

The Washington Post reported that between 1999 and 2003

worksite enforcement operations were scaled back 95 percent. So

while verbally we say we want to enforce it, we are doing 95 percent fewer inspections and fewer enforcement operations by the Immigration and Naturalization Service, now called U.S. Immigration

and Customs Enforcement.

The number of employers prosecuted for unlawfully employing

unauthorized immigrants dropped from 182 in 1999 to 4, 4 in 2003.

Fines collected went from $3.6 million to $212,000. We just stopped

doing it.

The Department of Homeland Security has increased enforcement efforts in recent months, but overall, as GAO reported last

month, ‘‘Worksite enforcement has been a relatively low priority.’’

I hope to hear from the witnesses who are with us today from

the Department of Homeland Security in terms of what is happening with enforcement. I want to thank you all again for coming

here and for taking the time to help the committee with its work.

Madam Chair, I yield back. Thank you.

Mrs. MILLER. Thank you very much, Mr. Lynch.

Because we are an oversight committee with subpoena authority,

it is the custom of the committee to swear in all of our witnesses.

So if you will all please rise and raise your right hands.

[Witnesses sworn.]

Mrs. MILLER. Thank you very much.

Our first panelist today is Martin Gerry. He was appointed by

President Bush as Deputy Commissioner of Social Security for Disability and Income Support Programs in 2001. Prior to assuming

his current position, Mr. Gerry served as a research professor and

director of the Center for the Study of Family, Neighborhood and

Community Policy at the University of Kansas, where he was also

a faculty member within the University schools of law and education.

Mr. Gerry, we appreciate your attendance here at the subcommittee, and look forward to your testimony.

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STATEMENTS OF MARTIN H. GERRY, DEPUTY COMMISSIONER,

OFFICE OF DISABILITY AND INCOME SECURITY PROGRAMS,

SOCIAL SECURITY ADMINISTRATION; ALFRED B. ROBINSON,

JR., ACTING ADMINISTRATOR, WAGE AND HOUR DIVISION,

EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF LABOR; JANIS SPOSATO, ASSOCIATE DIRECTOR,

U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY; MATTHEW C. ALLEN,

ACTING DEPUTY ASSISTANT DIRECTOR, SMUGGLING AND

PUBLIC SAFETY DIVISION, U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY; AND K. STEVEN BURGESS, DIRECTOR, EXAMINATIONS,

SMALL BUSINESS/SELF EMPLOYED DIVISION, INTERNAL

REVENUE SERVICE

STATEMENT OF MARTIN H. GERRY

Mr. GERRY. Madam Chair, Mr. Lynch and members of the subcommittee.

The President has proposed a comprehensive approach to immigration reform, one that works to better secure our borders, enforce

worksite employment requirements and address the variety of economic issues related to immigration. This comprehensive approach

calls for the creation of a true temporary worker program that allows individuals to achieve legal status by paying their taxes,

learning English and gaining and sustaining employment in our society.

It is against that backdrop that I want to thank you for inviting

me here today to talk about the wage reporting and Social Security

number verification processes, the Earning Suspense File and no

match letters that we issue, and the Non Work Alien File.

The Social Security Administration’s role in the wage reporting

process is to ensure that all workers receive credit for the work for

which they and their employers paid Social Security taxes. Each

year, the Social Security Administration processes approximately

235 million W–2s, from 6.6 million employers that are sent to us

either electronically or on paper. Social Security records these earnings to each worker’s account so that they are considered in determining eligibility for benefits, that would be retirement, disability

benefits, survivors benefits, and the amount of benefits to be paid.

This information is also passed on to the Internal Revenue Service

for income tax purposes.

Social Security number verification is a key to ensuring that

wage reports are properly matched to the right Social Security

number. Over the years, we have developed three alternative methods for employers to verify Social Security numbers. In 2005,

through a combination of these methods, we estimate that we provided a total of 67 million employer verifications. The employee

verification service is a free, convenient way for employers to verify

employee Social Security numbers. It provides employers with several options, depending on the number of Social Security numbers

to be verified.

To further increase the ease and convenience of verifying employee Social Security numbers, we developed the Social Security

Number Verification Service. After obtaining a PIN and password,

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in a simple registration process, employers can use the Internet to

get immediate verification of the accuracy of the employees’ names

and Social Security numbers.

Now, neither of these first two approaches deals with work authorization. I just want to make that clear. They are really ways

for employers to be sure that they have a name and number match.

Any employer in all 50 States, however, may participate in the

Basic Pilot Program, an ongoing voluntary program in which the

Social Security Administration supports the Department of Homeland Security in assisting employers who want to confirm employment eligibility for newly hired employees. The information the employer submits to the Department of Homeland Security is sent to

Social Security to verify that the Social Security number, name and

date of birth submitted matches information in Social Security Administration records.

The Social Security Administration also confirms U.S. citizenship, thereby confirming work authorization. The Department of

Homeland Security confirms current work authorization for noncitizens. Then finally, the Department of Homeland Security notifies the employer of the employee’s current work authorization status and whether the name and Social Security number match

SSA’s records.

As of July 2006, the Department of Homeland Security and Social Security have signed agreements with over 10,000 employers,

and so far, for fiscal year 2006, the Social Security Administration

is receiving an average of 150,000 Basic Pilot requests per month.

The Earnings Suspense File is an electronic holding file for wage

items reported on forms W–2 that cannot be matched to the earnings records of individual workers. A mismatch occurs when Social

Security cannot match the name and SSN on a W–2 to information

in our records. If the Social Security Administration later resolves

this mismatch, we can remove the item from the suspense file and

credit the wages to the proper person’s record.

While the Earnings Suspense File represents an accounting of

unassociated wage items, the taxes on these wages have been paid

and are credited to the trust funds. Each year, approximately 10

percent of the W–2s we receive, about 23.5 million, have invalid

name and Social Security number combinations. Using computer

routines, we subsequently are able to post more than half of these

W–2s. These routines are basically computer tests which can tell

whether there are some numbers reversed or there is some minor

error that creates the initial problem.

By October 2005, if you looked at the 2003 data, so about a year

and a half later, less than half these wage items initailly sent to

the earnings suspense file are still there. Each year, 10 percent

have an invalid name and Social Security number. The routines reduce that to less than 5 percent by October of the year after the

year in which we actually process the data, so in 2005 we were

down to 8.8 million or about 3.8 percent of all W–2’s received. So

we have gone from 10 percent, we then resolved more than half

and we reduced to 3.6 percent.

And subsequent processing reduces this still further. To give you

an example, for the 1995 year, today only 2.3 percent of the origiVerDate 11-MAY-2000 10:36 Jun 11, 2007 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\34662.TXT HGOVREF1 PsN: HGOVREF1
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nal are unposted. So over time, we do resolve many of these

mismatches.

It has been widely reported that most of the wage items in the

Earnings Suspense File can be attributed to work by illegal aliens.

We cannot determine the specific number of wage items that are

attributable to earnings of individuals not authorized to work in

the United States. And while some percentage of name and Social

Security number mismatches are attributable to unauthorized

workers, mismatches occur for a variety of other reasons, including

typographical errors, unreported name changes and incomplete or

blank Social Security numbers.

It is important to note that wage items that remain in the Earnings Suspense File include wages paid to individuals who were not

and may not currently be authorized to work in the United States.

These individuals have actually paid taxes into the Social Security

Trust Fund and are unable to receive benefits.

In certain instances, when a Social Security number does not

match the worker’s name, the Social Security Administration notifies employers of this situation through what is commonly called a

‘‘no-match’’ letter. We send these letters to employers who submit

more than 10 wage items when more than one-half of 1 percent of

the items that they submit consist of a Social Security number and

name combination that does not match. I said half a percent, it is

5 percent.

In 2005, we sent ‘‘no-match’’ letters to approximately 127,000 employers. The only source of information that Social Security receives about a taxpayer, employer and earnings is from tax related

information on a W–2. We receive and process this information as

an agent for the Internal Revenue Service. Use and disclosure of

tax return information is governed by Section 6103 of the Internal

Revenue Code. We currently have the authority to use this information only for the purpose of determining eligibility for and the

amount of Social Security benefits.

The administration supports legislative proposals that would

allow the disclosure of ‘‘no-match’’ data to the Department of

Homeland Security in the interest of national security and for law

enforcement purposes. Each year, Social Security reports to Congress the number of SSNs assigned to aliens who were not authorized to work in the United States when the card was issued for

whom earings were reported. The most recent report that we submitted to Congress stated that earnings were credited to 522,403

individuals with those Social Security numbers.

It is important to know, however, that because the work authorization status of a non-citizen may change, an earnings report

under a non-work Social Security number does not necessarily

mean that unauthorized work was performed.

In conclusion, I want to say that the Social Security Administration strongly supports the President’s comprehensive immigration

reform approach and remains committed to ensuring that the

American public’s hard-earned wages are properly credited, so that

they will be able to receive all the benefits to which they may be

entitled.

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Thank you for the opportunity to appear before the subcommittee, and I would be pleased to answer any questions you might

have.

[The prepared statement of Mr. Gerry follows:]

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Mrs. MILLER. Thank you. We appreciate that.

Our next witness is Alfred Robinson, Jr., who was named the

Acting Wage and Hour Administrator effective June 2004. The

Wage and Hour Division of the Employment Standards Administration administers and enforces a variety of labor standards and

statutes that are national in scope and that enhance the welfare

and protect the rights of the Nation’s workers. Prior to joining the

U.S. Department of Labor, Mr. Robinson was a member of the

South Carolina House of Representatives. And prior to serving in

the General Assembly, he worked on the board of the South Carolina Jobs Economic Development Authority, where he focused on

job creation and economic development.

Mr. Robinson, we appreciate your attendance here at the subcommittee and look forward to your testimony, sir.

STATEMENT OF ALFRED B. ROBINSON, JR.

Mr. ROBINSON. Thank you, Madam Chair, Ranking Member

Lynch and members of the subcommittee.

I am pleased to appear before you today to discuss the activities

of the Wage and Hour Division of the U.S. Department of Labor’s

Employment Standards Administration in support of the Department of Homeland Security’s enforcement of the Employee Eligibility Verification provisions of the Immigration and Nationality

Act. This enforcement is commonly called the I–9 process, after the

form that employers must complete to document the verification of

their workers’ eligibility for employment.

Wage Hour’s mission is to promote and achieve compliance with

labor standards that protect and enhance the welfare of the Nation’s work force. We are responsible for administering and enforcing some of the Nation’s most comprehensive labor laws, in particular the Fair Labor Standards Act. It requires the payment of minimum wage and overtime.

The administration supports a comprehensive approach to immigration reform that includes securing our borders, worksite enforcement and a temporary worker program. We look forward to working with Congress as it considers a comprehensive approach to immigration reform that will enhance coordinated enforcement of the

INA and U.S. labor laws to better protect U.S. workers.

Employment Standards and Homeland Security have sought to

coordinate worksite enforcement activities and entered into a

memorandum of understanding on November 28, 1998. It clarifies

the enforcement roles and responsibilities of each agency. The

MOU also promotes more effective and efficient use of agency resources, reduces duplication of effort and improves communication

and appropriate coordination between the agencies.

Wage Hour and Office of Contract Compliance Programs are covered by the MOU. Wage Hour recently began working with Homeland Security to update the MOU. As Acting Administrator, I will

focus my testimony on our agency’s role in helping Homeland Security reduce the employment of unauthorized workers.

The MOU obligates Wage Hour’s investigative staff to perform

two activities to assist Homeland Security. First, during an onsite

visit to an employer’s premises, Wage Hour staff advises employers

about their responsibilities to verify the employment eligibility of

25

potential employees, advises employers about the anti-discrimination provisions and provides employers with a copy of a Homeland

Security publication on completing the I–9, as well as information

from the Office of Special Counsel for Immigration-Related Unfair

Employment Practices.

Second, Wage Hour inspects the I–9 forms. Wage Hour conducts

such reviews of completed I–9 forms only in non-complaint investigations, so as to not discourage workers, regardless of their immigration status or that of their co-workers, from reporting potential

violations of employment standards. In other words, these reviews

are limited to investigations initiated by Wage and Hour.

Wage Hour’s I–9 review is designed to identify potential violations for Homeland Security’s enforcement action, based on a review of the face of the form. If a Wage Hour review discloses apparent serious violations, such as an employer’s unwillingness to allow

Wage Hour to complete the I–9 review, an employer’s failure to

maintain the I–9’s or obvious fraud, such as entering a person’s Social Security number with the same nine-digits, then the appropriate Homeland Security office is immediately advised, usually by

phone.

Wage Hour investigators have no authority to issue an employer

a warning notice or notice of intent to fine. Only Homeland Security can take appropriate enforcement action for an alleged violation of the employment eligibility verification provisions.

Under the MOU, Wage Hour investigators record the results of

their review on an ESA 91 form, which is transmitted to Homeland

Security when potential violations are disclosed. Wage and Hour

refers suspected violations described above, as well as then non-serious violations, such as minor paperwork errors, to Homeland Security via the form. If there are no violations, then Wage Hour returns the form in the file.

In conclusion, the administration looks forward to working with

Congress to enact a comprehensive immigration reform that includes securing our borders, worksite enforcement and a temporary

worker program.

Thank you for inviting me, Madam Chair. This concludes my

statement, and I will be pleased to respond to any questions from

members of the subcommittee.

[The prepared statement of Mr. Robinson follows:]

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Mrs. MILLER. Thank you. We appreciate that.

Our next panelist is Janis Sposato. She is the Associate Director

for the National Security and Records Verification Directorate with

the U.S. Citizenship and Immigration Service for the Department

of Homeland Security. She is a career Senior Executive Service

leader. She brings 31 years of Federal Government experience in

a very large, complex organization. She is an attorney by profession

and is highly focused on national security issues impacting U.S.

citizenship and immigration service. She was a Deputy Associate

Director, Domestic Operations Directorate, since the inception of

USCIS in 2003, after assisting in the transition of several components of the legacy Immigration and Naturalization Service in

2002, to the Department of Homeland Security.

We appreciate your attendance at the subcommittee and look forward to your testimony, ma’am.

STATEMENT OF JANIS SPOSATO

Ms. SPOSATO. Good morning. Thank you for giving me the opportunity to talk with the subcommittee about what my agency, U.S.

Citizenship and Immigration Services, can and is doing to stem the

tide of illegal immigration.

USCIS is the part of Homeland Security that adjudicates applications for immigration benefits, and we maintain the immigration

records. I am the Associate Director of USCIS for National Security

and Records Verification. My office was created in February of this

year by our Director, Emilio Gonzalez, for the express purpose of

demonstrating the expanding contribution that USCIS makes to

the integrity of the immigration system. Our employment verification program is an important part of our contribution to immigration integrity and it is the centerpiece of our efforts to discourage

illegal immigration.

We all recognize that employment in the robust American economy is a strong magnet for illegal immigration. The USCIS employment verification program is a simple and straightforward way to

make illegal employment in the United States substantially more

difficult to obtain. It works like this: After hiring the new employee, the participating employer submits a query on the Internet

to the USCIS employment verification Web site. The query provides the new employee’s name, date of birth, Social Security number and whether the individual claims to be a U.S. citizen or a noncitizen who has authorization to work in the United States. For

non-citizens, the employer also provides an immigration identifying

number.

The employer receives a response online within seconds. In most

cases, the response confirms the individual’s employment eligibility

and the verification process is complete. Behind the scenes, the system transmits the new hires information to the Social Security Administration NUMIDENT data base. In the case of non-citizens,

the information is sent to a USCIS data base as well. That is all

there is to the verification process in the vast majority of cases.

When the initial verification is not successful, the system issues

a tentative non-confirmation to the employer and more work must

be done. The employer must notify the employee of the tentative

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non-confirmation and give him or her an opportunity to contest the

finding within 8 business days.

While the process differs somewhat depending on whether the

failure to confirm employment eligibility emanated from the Social

Security or USCIS data base, in either case, a representative of the

Government will work with the individual who contested the tentative non-confirmation to find and correct the reason for the discrepancy. Problems may be as simple as the failure of the Government data base to account for a change of name at the time of the

marriage or a divorce.

Once the contesting individual provides the clarifying information, USCIS generally resolves its cases within 3 days. The process

at Social Security is very similar.

Today, use of the USCIS employment verification program by

employers is voluntary. The program began in 1997 as a tiny pilot.

Over time, it has expanded to support employers in all 50 States.

In the past 6 months, the program has grown to support an additional 200 employers per month. Yesterday, we had the pleasure of

announcing that we passed the 10,000 mark with more than 10,000

employers enrolled in the program.

And we are not done. We have much more capacity and we are

actively seeking new employers to join the program.

I want to take a moment to discuss the problem of fraud. We all

know that no system is foolproof. On the other hand, when electronic verification from Government data bases is added to the

presentation of documents at the work site, the use of counterfeit

cards and identities becomes much more difficult. In order to be accepted, the counterfeits must now match the data in the Government computer system.

Beyond that, USCIS is exploring new and innovative ways to

combat imposter fraud and if we receive our requested appropriation in fiscal year 2007, we will add monitoring and compliance activities to our program. Already, we work closely with ICE worksite

enforcement and we look ahead to being able to make a larger and

larger contribution to the administration’s ongoing interior enforcement strategy.

We in USCIS are in a unique position to understand the importance of having a legal way for individuals to enter and work in

the United States. Enforcement alone is not enough. That is why

we and the President support comprehensive immigration reform

that includes interior and border enforcement, in addition to a temporary worker program.

I thank the subcommittee for the opportunity to briefly describe

our employment verification program, and I look forward to hearing your questions and comments.

[The prepared statement of Ms. Sposato follows:]

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Mrs. MILLER. Thank you very much. We appreciate that.

Our next witness is Mr. Matt Allen. Mr. Allen is currently the

Acting Deputy Assistant Director of the Smuggling and Public

Safety Investigations Division of the U.S. Immigration and Customs Enforcement Agency. In this position, he has operational

oversight of the contraband smuggling, human smuggling and trafficking, identity and benefit fraud, worksite enforcement, human

rights violators and public safety, which is gangs, programs within

the Office of Investigations. Prior to this assignment, Mr. Allen

served as a unit chief for the Contraband Smuggling Unit at ICE

headquarters. In that capacity, he had operational oversight of all

of ICE’s drug and contraband smuggling investigation throughout

the United States.

We appreciate your attendance at the subcommittee, Mr. Allen,

and look forward to your testimony, sir. The floor is yours.

STATEMENT OF MATTHEW C. ALLEN

Mr. ALLEN. Thank you, Chairwoman Miller and members of the

subcommittee. Thank you for welcoming me here today to talk

about U.S. Immigration and Custom Enforcement’s efforts in worksite enforcement and how we are investigating and prosecuting employers that hire illegal aliens.

ICE’s worksite enforcement strategy is part of a comprehensive

layered approach that focuses on how illegal aliens get to our country, the ways in which they obtain identity documents, allowing

them to become employed, and the employers who knowingly hire

them. ICE’s worksite enforcement program is just one component

of the Department’s overall interior enforcement strategy, and is a

critical part of the Secure Border Initiative.

As part of our strategy, ICE is focused on bringing criminal prosecutions and using asset forfeiture as tools against employers of illegal aliens. An example of our worksite efforts occurred in April

2006, when ICE conducted the large worksite enforcement operation ever undertaken. This case involved IFCO Systems, a Houston-based company. ICE agents executed 9 Federal arrest warrants, 11 search warrants and 41 consent searches at IFCO worksite locations throughout the United States. In addition, ICE

agents apprehended 1,187 unauthorized workers at IFCO work

sites.

This coordinated enforcement operation also involved investigative agents and officers from the Department of Labor, the Social

Security Administration, Internal Revenue Service and the New

York State Police. The criminal defendants have been charged with

conspiracy to transport and harbor unlawful aliens for financial

gain, as well as fraud and mis-use of immigration documents.

Our worksite enforcement efforts also include critical infrastructure protection. In June of this year, for example, an ICE investigation resulted in the apprehension of 55 illegal aliens working at a

constructionsite at Dulles International Airport, just outside Washington, DC.

By carefully coordinating our detention and removal resources,

and our investigative operations, ICE is able to not only target the

organizations unlawfully employing illegal workers, but to detain

and expeditiously remove the illegal workers that we encounter.

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For example, in a recent case in Buffalo, NY, 34 illegal workers

were apprehended, detained and voluntarily repatriated to Mexico

within 24 hours. Such actions send a strong message to illegal

workers here and to foreign nationals in their home countries that

they will not be able to move from job to job in the United States.

Rather, they will be detained and promptly deported.

What impact will this have? Criminally charging employers who

hire undocumented aliens and rapidly removing illegal workers

that are encountered will create the kind of deterrence that previous enforcement efforts did not generate. We are also identifying

and seizing the assets that employers derive from knowingly employing illegal workers in order to remove the financial incentive

to hire them and to pay them substandard wages.

The magnet of employment is clearly fueling illegal immigration,

but the vast majority of employers do their best to comply with the

law. ICE has provided training and tools on our Web site to help

employers avoid violations. However, the growing prevalence of

counterfeit documents interferes with the ability of legitimate employers to hire lawful workers. In short, the employment process

cannot continue to be tainted by the widespread use and acceptance of fraudulent identification documents.

Accordingly, in April 2006, Deputy Attorney General Paul

McNulty and Assistant Secretary Myers announced the creation of

ICE-led Document and Benefit Fraud Task Forces in 11 major metropolitan areas. The DBF task forces are built on strong partnerships with USCIS, the Social Security Administration, the Postal

Inspection Service and the Departments of State, Justice and

Labor. The task forces identify, investigate and dismantle organizations that supply identity documents that enable illegal aliens, terrorists or other criminals to integrate into our society undetected.

While ICE has made substantial improvements in the way that

we investigate and enforce worksite, DHS also supports several of

the additional tools contained in pending legislation. We look forward to working with Congress as it considers comprehensive immigration reform, including proposals to enhance worksite enforcement. The administration has sought the authority to have additional access to the Social Security Administration ‘‘no-match’’ data

to improve immigration enforcement. Greater access to ‘‘no-match’’

data would provide important direction to ICE investigators to target their enforcement actions toward those employers who have a

disproportionate number of these no matches, who have reported

earnings from multiple employees on the same Social Security

number and are therefore more likely to be engaging in unlawful

behavior.

Additionally, provisions in current legislative proposals regarding

document retention by employers are crucial to worksite enforcement criminal prosecutions. Asking employers to retain documents

for at least as long as the statute of limitations for these crimes

is simply common sense.

Although criminal prosecution of egregious violators is our primary objective in worksite cases, a need also exists for a new and

improved process for issuing fines and penalties that carry a significant deterrent effect and that are not regarded as a mere cost

of doing business. The United States can have an effective worksite

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enforcement program only with a strong compliance program combined with the issuance of meaningful penalties. The administration has proposed a streamlined administrative fines and penalties

process that gives the Secretary the authority to administer and

adjudicate fines and penalties.

As I have outlined in my testimony, ICE has greatly advanced

its worksite enforcement program and its efforts are part of a comprehensive strategy that focuses on several different layers of the

problem simultaneously, including illegal employment, document

and benefit fraud, and the smuggling that gets illegal aliens to the

United States.

Our responsibility at ICE is to do everything that we can to enforce our laws. But enforcement alone will not solve the problem.

Accordingly, the President has also called on Congress to pass comprehensive immigration reform that accomplishes three objectives:

strengthening border security, ensuring a comprehensive interior

enforcement that includes worksite enforcement, and establishing

a temporary worker program. Achieving these objectives will dramatically improve the security of our infrastructure and reduce the

employment magnet that draws illegal workers across the border.

ICE is dedicated and committed to this mission, and we look forward to working with this subcommittee in our efforts to secure

our national interests. Thank you for inviting me, and I will be

glad to answer any questions you may have.

[The prepared statement of Mr. Allen follows:]

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Mrs. MILLER. Thank you. We appreciate that very much.

Our final witness today is Mr. Steve Burgess. He is the Director

of Examinations for the Small Business/Self Employed Division of

the Internal Revenue Service. As the Director of Examinations, he

oversees all compliance policy and audit activities dealing with

small business and self-employed taxpayers in the Nation. Prior to

this assignment, he served as the Acting Director of Reporting Enforcement and was also responsible for policy issues related to abusive tax avoidance transactions, anti-money laundering and the

fraud program.

Mr. Burgess, we welcome you to the subcommittee and look forward to your testimony, sir.

STATEMENT OF K. STEVEN BURGESS

Mr. BURGESS. Good morning, Madam Chairwoman Miller, Ranking Member Lynch and members of the subcommittee.

I am pleased this morning to discuss the Internal Revenue Service’s limited role in the immigration debate. Comprehensive immigration reform, including enhanced border security, robust interior

enforcement and temporary worker program is top administration

priority. Perhaps the most difficult part of this issue is framing it

properly and understanding fully the different yet sometimes complementary roles provided by the Social Security Administration,

the U.S. Department of Homeland Security and the Internal Revenue Service.

My written statement attempts to do that, as well as walk

through our role, both in identifying instances where mismatches

between employee names and Social Security numbers occur, as

well as our enforcement authority against employers. The most

critical point to keep in mind from an IRS perspective is that our

role is tax collection and administration. We want to make sure

that everyone who earns income within our borders pays the proper amount of taxes, even if they may not be working here legally.

If someone is working without authorization in this country, he

or she is not absolved of tax liability. Instead of using a Social Security number to file a tax return, that person frequently uses an

individual taxpayer identification number, or what we call an I–10.

For tax year 2004, at least 2.5 million returns were filed by aliens

using an I–10. These 2.5 million returns voluntarily reported taxes

of over $5 billion. More than 2.3 million of them include income

from salaries and wages.

Under current law, the burden of preventing illegal aliens from

working in this country falls on employers. When they are hired,

an employee is charged with completing two documents which demonstrate their ability to work in this country. The first is an I–9,

which is required by the Department of Homeland Security. It is

to be completed and kept on file by the employer. The second is the

W–4 form, an IRS form on which the employee designates the number of deductions that should be made from his or her salary.

Both forms request, among other things, the Social Security

number of the employee. However, there is no requirement that the

employer verify the information that the prospective employees

provide. If the employee provides an inaccurate number, it will first

be discovered when the employer submits the W–2 form to the SoVerDate 11-MAY-2000 10:36 Jun 11, 2007 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 C:\DOCS\34662.TXT HGOVREF1 PsN: HGOVREF1
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cial Security Administration at the end of the year. The Social Security Administration will discover that the numbers do not match

any of the information in their data base. After attempting to identify why the name and numbers do not match, the Social Security

Administration will eventually send a letter to both the employee

and the employer, asking that the correct number be submitted.

Social Security Administration, however, has no enforcement authority in this area. The IRS has enforcement power, but this is not

an area in which we would normally initiate an examination. Rather, this is an issue that we would review as party of a general employment tax audit.

There are several problems with this issue from an enforcement

perspective. The cases in this population tend to have very low

audit potential. The wages from mismatched W–2s are generally

very low. In 2004, the average wage reported for mismatched W–

2s was under $7,000.

We have also found that employers that have high W–2 mismatch rates generally do not always have corresponding problems

with fulfilling their employment tax obligations. Perhaps the most

significant is that employers can generally demonstrate that they

have requested a valid Social Security number and had reasonable

cause to believe that the Social Security number that was given

was accurate.

I will conclude by repeating the need for comprehensive immigration reform, but I urge that any changes in the current system encourage the type of behavior that is both desired from both employees and employers. We recognize the positive benefits of comprehensive reform for tax administration. For example, the creation

of a temporary worker program, will likely result in additional taxpayers entering the system.

However, failure to enact comprehensive immigration reform

could have negative consequences for tax administrations if procedures are imposed on employers and employees that have the effect

of driving certain economic activities underground.

Thank you for inviting me to testify this morning. I will be happy

to take any questions you may have.

[The prepared statement of Mr. Burgess follows:]

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Mrs. MILLER. Thank you very much.

Where to start, I guess, we certainly had a lot of very, very interesting testimony.

I sit on the House Armed Services Committee as well. It was interesting listening to the 9/11 Commission really identify what a

big problem that our Nation had and continues to have is the inability of various agencies to share information. I think a lot of

what we heard here today points to a continuation of that. So I am

hoping that this hearing will allow us to understand how we in the

Congress can assist the various agencies.

One of the acts that we have recently passed in an effort to help

us with illegal immigration, as well as homeland security, is something called the Real I.D. Act. This of course is a piece of legislation

that will require all the States, as they are using their breeder

identification documents, to issue either a driver’s license or State

identification card, to be able to verify who these individuals are.

We saw the horrific attacks on our Nation of September 11th. Literally you had all except one of the murderers who had valid driver’s licenses. Mohamed Atta had a visa that had been expired for

6 or 7 months and still had a valid driver’s license. It is the foundation, I think, to your identity.

I am also aware that the States, in addition to the driver’s licenses, and I will address this question to Mr. Gerry, because of

the Welfare Reform Act, trying to get deadbeat parents as they go

from State to State, when you get a driver’s license you have to

verify now, I believe every Secretary of State or DMV or whatever

in the Nation has to verify the Social Security number of that individual who is applying for a driver’s license or State identification

card.

I am just wondering, because everything that we are talking

about today focuses on the veracity and integrity of your data base

and the verification for Social Security numbers, how is that working amongst the States? I am assuming it is the same process as

is being utilized by the employers. Maybe you could explain that

to us.

Mr. GERRY. I am trying to figure out which question to address

first. We do in fact operate through a hub, which is set up between

the Social Security Administration and AAMVA, which is the

American Association of State Motor Vehicle Administration. We do

verify for driver license purposes.

What we actually do is match names and numbers. We go

through a procedure that is quite similar to what we would go

through with respect to, remember I mentioned three different verification systems we use, well, really the two that don’t involve

work authorization, where we are just looking at whether the name

and number match. And as far as I know, I would be happy to supplement this for the record, that has been working quite successfully. We have a longstanding working relationship with AAMVA.

But that process does not ger involved with this whole question

of work authorization and immigration to the same extent as the

Basic Pilot process. So in that sense, it is somewhat different.

Mrs. MILLER. I was trying to take some notes when you were

speaking there, you were talking about the three methods. I think

you said there were 67 million verifications. Then you explained a

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little bit about how the employers got the PIN and the password

to use the Internet.

But yet in the pilot program as well, I believe that the percentage of employers who are actually participating in that currently

is less than one-tenth of 1 percent nationally.

Mr. GERRY. I think my testimony was there were 6.6 million employers, and I think we just said we went over 10,000. I can’t do

the math in my head, but that sounds like a reasonable calculation.

It is a small percentage of all employers that are participating in

the Basic Pilot.

Mrs. MILLER. Less than small.

Mr. GERRY. It is a growing, but small percentage.

Mrs. MILLER. Could you tell us a little bit about your reasoning

behind your determination that you are unable to share the information in the ESF with the Department of Homeland Security as

well?

Mr. GERRY. Well, basically the question of what information we

can share, tax-related documents, is primarily a question, of course,

for the Secretary of the Treasury, for the Internal Revenue Service.

Because Section 6103 of the Internal Revenue Code lays out the

conditions under which this information can be shared. We of

course look to the Department of Treasury with respect to what the

meaning of that statute is and the regulations that are issued.

The longstanding understanding that we have from the Department of Treasury and that we have relied on is that, as I testified

earlier, we may only use the tax-related information for purposes

directly related to our programs, the operation of our programs and

the determination of benefit amounts. So in that sense, any information that we have that is tax-related, that would be right now

the only purpose for which we could use it.

The one very limited circumstance which is slightly outside of

that is certain circumstances where the Inspector General of the

Social Security Administration has initiated an investigation, often

in conjunction with the Department of Homeland Security. At that

point, we can in fact make that information available. But that is

far along in the investigation and prosecution process.

So we do share in those very limited circumstances data that

would be covered by Section 6103. But otherwise, we are under this

general restriction on the use of that data.

Mrs. MILLER. I appreciate that. I see my counsel taking some

notes here for possible legislation I think to assist you with that.

Since we talked a little bit about the IRS, Mr. Gerry put you on

the seat there as well, let me direct a question to our individual

from the IRS. Have you been working with the Social Security Administration as well as ICE in order to promote the information

sharing within the bounds of the law with this ESF? And perhaps

as a followup question as well, you mentioned that the mission of

the IRS is to collect taxes. I was a former county treasurer, so I

have that, right? Through Biblical times, even, the tax collectors

were always the most hated people. Regardless that is our mission.

What about all of these employers who are using as a corporate

deduction the amount of compensation that they are paying to illegal aliens? What about legislation that would remove them, I don’t

know if this is something you want to opine on, but I am sort of

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thinking out loud now, what about removing that from their corporate deduction? We have to have some penalties in order for people to comply with this. I think that would be a way. I don’t know

if you have any opinion on that.

Mr. BURGESS. Actually, Madam Chair, that would be in terms of

consideration from Treasury, which would obviously require legislation. I guess maybe to indirectly answer, but if I was looking in

terms of additional penalties and that sort of thing, to drive, it still

roots back to some of the basic problems in terms of what information is provided to that employer. Unless there is a significant

change in legislation as to what information is provided, as I testified right now, if someone provides evidence of a Social Security

number and that is an accurate number, and signs that under penalties of perjury, it absolves the employer of responsibility to exercise reasonable care.

So even in terms of looking at additional legislation, that is

something we would have to be mindful of in terms of, it wouldn’t

solve the problem.

Mrs. MILLER. Thank you.

Mr. Lynch.

Mr. LYNCH. Mr. Allen, I appreciate your testimony this morning.

I want to go over the enforcement end of this that you are involved

with. We just had a troubling incident up in the Boston area where

one of our employers, it was actually an enforcement action that

was conducted at an LNG facility in Boston, which is right beside

a very large oil and petrochemical facility. So we have LNG, we

have LNG tankers, we have LNG liquified natural gas and we have

a massive petroleum product depot.

Inside the facility, we basically apprehended 16 illegal aliens

working for one of the contractors there. This is a facility that is

critical infrastructure with respect to homeland security. Yet I also

read the Washington Post from last month where onsite inspections have been scaled back 95 percent between 1999 and 2003,

this is after September 11th, continued to drop. The number of employers prosecuted for unlawfully employing unauthorized immigrants dropped from 182, which isn’t a lot, figuring, as Mr. Gerry

said, we have 6.6 million employers, we actually prosecuted 182 of

those in 1999. Then that number has reduced to four. We actually

prosecuted four, four companies for illegal employment of unauthorized immigrants.

It just doesn’t read well with what your earlier testimony was

that we are trying to reduce duplication of services and trying to

work smarter and trying to get this job done. It seems like not only

have we reduced duplication of services, we have reduced everything, down to basically zero. I know it is not your fault, but I am

just trying to figure out how are we going to get our arms around

this problem if we are not more aggressive than what we are? This

is basically, we are doing nothing at this point, from what I can

see.

Mr. ALLEN. Let me start with your last point first, and that is,

how do we get our arms around this problem. I think the consistent

theme that we have put forward this morning is that the answer

to this is comprehensive. As the chairwoman pointed out in her

opening remarks, this is a situation that we have found ourselves

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in over the course of virtually two decades. We are not going to arrest our way out of it. It is virtually impossible, and none of the

agencies sitting at this table are resourced to go out and arrest 12

million people to resolve the issue that way.

Mr. LYNCH. Nor do we want you to. But we do have some leverage with employers to help us police this whole process. It is going

to require a collaboration. I think there is a way out of this, but

it doesn’t look like we are taking any meaningful steps.

Mr. ALLEN. I hope that my testimony pointed out that there has

been a shift in strategy. I think the shift has been away from administrative worksite enforcement, which I think also in the last

two decades has kind of illustrated that it hasn’t been the kind of

deterrent that we would want, to a focus on the two pillars that

you pointed out and started with. And that is critical infrastructure, in light of September 11th and in light of the 9/11 Commission report, recognizing that access to critical infrastructure is the

key, and that our first pillar has to be focused on removing that

access and working with employers to make sure that they self-police. Many of the operations that we do at critical infrastructure

sites are done in collaboration with employers who want to make

sure that their work force is secure and that we remove access to

people who should not be in the United States, first of all, and

shouldn’t be in critical infrastructure in the second place.

Then the second part of our strategy really does focus on that

criminality. Those employers, who as part of their business model

structure, work in such a way that they virtually knowingly hire

unauthorized workers. By focusing on those two pillars, we take

care of critical infrastructure on the one hand and focus on criminality and those who really build their business model on the other

hand, and criminalize that activity.

Mr. LYNCH. OK, thank you.

Mr. Gerry, if I could just touch on a point that Madam Chair was

hitting on earlier, about the sharing of information and the sensitivity of that. We heard that we have in many instances illegal

immigrants who are working here who are actually filing these I–

10’s. So they are getting employer i.d. numbers, they are paying

taxes. But I think what might be happening here is, we have no

way of verifying if the number of deductions that they are claiming

is valid.

So while we are saying, yes, they paid X number of dollars in

taxes, it is probably very likely that they are claiming in their W–

4E, which is exempt, or W–4 with 25 deductions. So we are getting

very little of what we should be getting in terms of the proper tax

load. I am just wondering, how do we get at that problem? Because

without sharing that information, we understand you are trying to

be respectful of that division of authority, we would have to have

you go onto these jobs sites under the guise of enforcing the proper

tax load on those individuals. Instead of asking Mr. Allen and his

group to go in with ICE and under a straight immigration protocol,

we are asking you to go in to enforce the tax laws.

So we have to sort of collaborate here. I think we have the right

group here. We just have to figure out who is going to do what.

Mr. GERRY. I think amongst us you have the right group. I think

our problem in the I–10 situation is we might well have no inforVerDate 11-MAY-2000 10:36 Jun 11, 2007 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 C:\DOCS\34662.TXT HGOVREF1 PsN: HGOVREF1
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mation whatsoever. This is a person who is not enumerated by us.

It is possible that they could have dependents who are enumerated

by us, but it would be total speculation at this point.

The restriction on sharing of tax-related information of course

doesn’t apply to the Internal Revenue Service. It is in fact their

role. So any information that we have that is tax-related, of course

they have complete access to.

So I understand the problem that you are posing is probably

really a better problem for the IRS to talk about. I think right now,

I don’t see any immediate barriers to our working with the Treasury on this. It would depend on whether we had data whether it

was not tax-related and whether there are regulatory projibitions

on sharing it. One question is to the privacy of that data. But I

don’t know that comes up in this case.

Mr. LYNCH. Madam Chair, I asked the wrong person. Could I

have Mr. Burgess——

Mrs. MILLER. The time has expired, and we do have a couple of

Members who do have to leave. There will be a second round of

questioning.

Mrs. Schmidt.

Mrs. SCHMIDT. Thank you.

I am going to direct two questions to Mr. Allen. The first one is

regarding ICE and the training of locals. In the surrounding district, Sheriff Jones in Butler County has really come to the scene

in the greater Cincinnati market, saying that he would like to be

able to go in and collect illegals and put them in jail; but he lacks

the authority. His complaint is that ICE can’t train his folks to do

it in a timely manner. He has been told that it is anywhere from

6 to 18 months to train his officials to do that.

Is that a valid statement or not?

Mr. ALLEN. I will answer briefly, and then we can talk offline or

I can take one for the record if you want. ICE has a very robust

287(g) program, which you are talking about, which is the mechanism that we have under the INA to train State and locals to perform immigration functions. We have been working aggressively to

try and identify State and local agencies to work with us cooperatively. I would say that our focus right now is on the southwest

border. Six to 18 months sounds like something that I am going to

have to check on and find out if that is a real time line. I don’t

have oversight of that division of the Office of Investigations. So I

will have to get back to you whether or not that is an accurate time

line for training in your area.

Mrs. SCHMIDT. OK, thank you. Second, and I wasn’t going to

bring this up, but you have it in your testimony on page 7, and it

is regarding the Fischer Homes issue. I don’t know how to delicately talk about this. In the United States, we are innocent until

proven guilty. Mr. Fischer does not live in my district, he lives in

Kentucky. I represent Ohio.

But a few weeks ago, he came to my office with tears in his eyes

over the heavy-handedness that the Federal Government is applying to him regarding Richard Pratt. He shared with me all of the

documents that the Federal Government had laid on his table. He

was there with his attorney.

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What I saw in it was a statement by the Federal Government

saying that if he admitted to culpability and paid $1 million, things

would go away. But if he didn’t, they were threatening to seize all

of his assets until such time it would be demonstrated whether he

had culpability or not.

That was troubling to me, because I don’t know whether Mr.

Fischer is innocent or guilty. But what worries me is, if the Federal

Government comes in to someone that is innocent and puts liens

on all of his homes that he can’t sell, in essence, that individual

is going to go broke. And if he is innocent, then the blame is on

us.

I am sure you may not know all of the issue here today. But I

did read those documents and I read them very, very carefully. And

they were from the Federal Government. And it indeed troubled

me.

I also want to add, Mr. Fisher asked me to do nothing on his behalf, which is why I never contacted your agency or any other

agency. All he wanted to show me was the heavy-handedness of the

Federal Government, so that I could be aware for the future. So

again, Mr. Fischer asked me to say nothing or to do nothing. And

I wouldn’t have said anything today except on page 7 you talk

about this issue. So I am bringing it to your attention that whether

he is guilty or not, from what I saw from the documents that he

gave to me, the Federal Government is assuming guilt, which I

don’t think we do in our Constitution.

Mr. ALLEN. Thank you. At the risk of appearing to dodge it, I

will defer perhaps to the Department of Justice who, based on your

description, probably is the author of those documents. That case

is ongoing and I believe there are negotiations between the Federal

Government and the defendants in the case.

Mrs. MILLER. Mr. Bilbray.

Mr. BILBRAY. Thank you, Madam Chair. First of all, I would like

to thank you for allowing me to participate on the panel.

Ladies and gentlemen, before you really is the answer to illegal

immigration. Mr. Allen, in all fairness, it is not border patrolmen

at the border. Interior enforcement is obviously where we have the

missing line.

Mr. Gerry, I appreciate that you bring up the fact that you have

laws that don’t allow you to share information. I think all of us

have read the September 11th report. The 9/11 Commission specifically said, September 11th happened because we had so many firewalls that were developed after the Watergate period that agencies

couldn’t communicate.

I think, Madam Chair, our goal should be right now in Government Reform to destroy these firewalls and allow the communication so the American people can be protected.

Mr. Allen, I have to apologize to you right off, because you are,

to a large degree, going to be the focus of my wrath today. How

old were you in 1986?

Mr. ALLEN. I was 21 years old.

Mr. BILBRAY. Twenty-one. Well, let me remind you that in 1986

we did pass what was called comprehensive. And part of that comprehensive plan that was implemented was the amnesty program.

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What wasn’t implemented, obviously, from the records, was

workplace enforcement. 1986 caused the greatest influx of illegal

immigration that we have ever seen in this republic. In fact, as

somebody who grew up and lives down south along the border, you

can set your watch by every time somebody in the administration

talks about comprehensive, because the flow of illegal immigration

pours across the border, because they hear amnesty.

Now, my concern is that when we talk about what to do about

the 12 million that are here is that we don’t cause another 30 million to come because they see that they were fools to wait to immigrate legally. There is one gaping hole that we have in the system,

and I need you to give us the answer. That is, we haven’t been

doing interior enforcement. I want to ask you, why can’t my border

patrol agents, who have checkpoints north of my district, south of

my district, east of my district, cannot leave my district, leave my

county without going through border patrol agents.

But the same border patrol agents are specifically told they cannot go to my Home Depot and check illegal aliens. Why is there

a gag rule on my uniformed officers in San Diego County?

Mr. ALLEN. Speaking on behalf of ICE, and not being the organization that CBP border patrol agents work for, I will have to defer

to CBP on that policy question. But obviously, focus on worksite is

what we are here to do. I can’t answer on behalf of CBP.

Mr. BILBRAY. OK. In all fairness, I think that I would just ask

that we look at the fact that any time someone, Madam Chair,

talks about sending more agents to the border, as somebody at the

border, I would say, send them to Tennessee, send them to Kentucky, send them to the interior, send them to Alexandria, so that

we can start doing enforcement.

Mr. Gerry, in 1937, is that when our Social Security card was developed?

Mr. GERRY. Approximately, yes.

Mr. BILBRAY. Every driver’s license in America was a name and

a number on a piece of paper, right?

Mr. GERRY. I think so.

Mr. BILBRAY. How many States have that kind of i.d. for their

driver’s license today?

Mr. GERRY. A piece of paper—I don’t know the answer. I have

a license, I have had licenses in Texas, Kansas and Maryland in

the last 15, 20 years, and I haven’t seen anything on paper.

Mr. BILBRAY. It is a pretty good guess that all the States have

left that system? Is there any possibility we may be able to work

between the administration and this legislature to upgrade our Social Security card to reflect the real i.d. standards that we have set

on driver’s licenses?

Mr. GERRY. Actually, Congress passed requirements which asked

the agency to develop, with respect to the bank note paper requirements, a new approach to try to secure the card. The Commissioner

has recently forwarded to the Congress a report that outlines several different things that could be done to dramatically improve security of the bank note card. That is what the statute that governs

us right now requires.

And we haven’t really gone beyond that because the SSN card is

not an identification document. However, the President talking

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about the whole question of immigration has talked about a biometric card for foreign job applicants, which I think by its very definition would have to be something other than a paper, bank note

card.

Mr. BILBRAY. That is where it gets down to your work and Mr.

Burgess’ work. An employer right now is required to get a Social

Security number from an employee?

Mr. BURGESS. Yes, Congressman. They are required to ask for an

accurate Social Security number provided by the employee.

Mr. BILBRAY. But we really don’t have a true tamper-resistant

document, so that the employer could see that the number actually,

have justifiable cause that the number applies to the person that

is standing before them, asking for a job? Either one of you guys.

Mr. GERRY. That is correct.

Mr. BURGESS. Yes, sir, that is correct.

Mr. BILBRAY. So what we have is that the Federal Government

has never done with its Social Security card what we are requiring

States under the Real I.D. bill to do with all driver’s licenses and

all i.ds? Is that fair to say?

Mr. GERRY. I think it is fair to say.

Mr. BILBRAY. I would ask, Mr. Burgess, when we were talking

about the tax issue, how many taxpayers, do we know how much

money is paid out without using Social Security numbers, using the

tax i.d. number?

Mr. BURGESS. In terms of the mis-match fund, Congressman?

Mr. BILBRAY. No, I am talking about the use of those tax, not

just mis-match, but also those who are using the tax i.d. number

in lieu of the Social Security number.

Mr. BURGESS. The I–10, the taxpayer identification number? Actually, the $5 billion that I referred to was the net in terms of, obviously those individuals, some individuals may have received refunds. Obviously even someone that is here illegally that is filing

a return would be entitled to deductions. However, they would not

be entitled to earned income tax credit.

Mr. BILBRAY. Why would they not be?

Mr. BURGESS. They specifically by statute do not qualify. You

would need to be a citizen. But as far as the other deductions in

terms of deductions for exemptions other items, they would qualify

for and have claimed on returns.

Mrs. MILLER. The gentleman’s time has expired, if I could interrupt. There will be a second round of questioning.

At this time I would like to call on Ms. Foxx.

Ms. FOXX. Thank you, Madam Chairwoman.

I too am bothered by this constant use of the term failure to

enact comprehensive immigration reform. That seems to be the answer that all of you have.

I would like to ask Mr. Allen a question. Tell me exactly what

you mean in using that phrase, ‘‘by establishing a temporary worker program as part of a comprehensive immigration reform.’’ What

is that program going to look like?

Mr. ALLEN. Well, ICE in all likelihood would not administer the

program. It would be administered by CIS and other parts of the

Department.

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Our vision for a temporary worker program is an opportunity to

do something that is very important. I think it has been pointed

out a couple of times during the discussion this morning. And that

is to bring in people from the shadows, and identify people who are

in the United States, get them identified and have an ability to

know who is actually in our country. Once they are identified,

allow them to work in jobs that are available and that are not currently being worked by U.S. citizens. In other words, fill jobs that

are currently not filled by our citizens.

Ms. FOXX. How is that different from the temporary worker programs that we already have? Don’t we already have a lot of temporary worker programs? Tell me what is new about what you are

talking about. You are talking about establishing a temporary

worker program for illegals. I want to know, what is that, what do

you mean by a temporary worker program?

Ms. SPOSATO. Congresswoman, if it is all right, I will try to take

that, because it is my part of the Department of Homeland Security

that would administer such a program. I would like to go back to

your slightly earlier question about how would the temporary

worker program differ from the employment based programs that

we administer today. And I think the answer to that is, not necessarily in substantial ways, but when the administration expresses its desire and openness for a temporary worker program,

it is looking to manage the 12 million or so people who we believe

to be in the United States in the shadows, and to give them an opportunity to come forward and be employed in positions that are

not occupied by U.S. workers.

Ms. FOXX. So are you saying then you would simply expand the

existing temporary worker programs that we have by 12 million, if

that is what it needs to be? And do you assume that all 12 million

of those people are currently working?

Ms. SPOSATO. I can’t say that the number of qualifying individuals would be 12 million. But I believe the administration has expressed an openness to various kinds of programs that the Congress might propose, and the Senate has proposed a program. The

administration is willing to work with the Congress to develop the

best program that can be put in place.

Ms. FOXX. I have one more question. I would like to get a copy

of the training manual that you use for local people, local law enforcement people, to come up to the standards that ICE has set. I

want to see all of the manuals or the outlines, the syllabus, whatever you have that you use that you say people have to adhere to

in order to be qualified to do what ICE says they have to do.

Then I want to see the comparable material that you use for your

own officers to say that they meet the standards to be enforcement

officers. I would like to see those. And I would like to see them fairly soon. I don’t want to wait 6 or 8 months to get them. I am assuming that they exist and that it shouldn’t be any problem to get

a copy of them. I would like to see them right away, because I

would like to review them.

Mr. ALLEN. I will certainly take that for the record. The only

thing I would point out right up front is that the training course,

the 287(g) training course is about a 5-week course that we teach

to State and local officers. I believe our special agent training right

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now is in the range of 27 weeks at the Federal Law Enforcement

Training Center. And they are different courses, they teach completely different skill sets; immigration authority being one subset

of the skills that we teach our investigators.

Ms. FOXX. What does the length of the program have to do with

my request?

Mr. ALLEN. I don’t think it did.

Ms. FOXX. Thank you.

Mrs. MILLER. Thank you. I am one of these who really does believe that we have to have a comprehensive approach to immigration reform and to assisting all the agencies to enforce our current

laws, etc. I will tell you I just came back from a very eye-opening

trip for me, over the weekend, to our southern border.

We were in Yuma watching the Kentucky National Guard actually there build a wall. We were down in Nogales with some of the

ICE agents and the Customs and Border Protection, looking at the

processing centers there with hundreds and hundreds of illegals

that they had just picked up that night, as well as the drugs. There

was marijuana about to the ceiling of this room. It was unbelievable, the amount of drug interdiction that is happening as the National Guard is now able to supplement the work for the Customs

and Border as well. And in El Paso, looking at some of the different

things that are happening there.

I do think we need a comprehensive. I mean, you have to have

a wall, perhaps, you need to be able to utilize technology. You need

to have additional resources. You need to have judges and attorneys that can adjudicate the system so that we can stop this catch

and release, etc. A big part of why we are having this hearing here

today is so we can understand again what tools we need to give the

various agencies in the Federal Government to dis-incentivize employers from hiring known illegal aliens. I just want to read off the

Social Security Administration’s Web site under Employer Reporting Instructions and Information, I just thought this was interesting.

‘‘Do not use any of this information, essentially, to take punitive

action against an employee whose name and Social Security number do not match Social Security’s records. A mismatch does not

make any statement about an employee’s immigration status, is

not a basis in and of itself for taking adverse action against the

employee.’’ Here is the kicker. ‘‘Doing so could subject you to antidiscrimination or labor law sanctions.’’

In other words, don’t do anything with this information or you

are going to really be in trouble. So again, the purpose of this hearing is, how can we assist all of you. I want to focus my final question here, on the I–9 form, the employment eligibility verification

form. Ms. Sposato, I think you were mentioning in your testimony,

you said it was a very simple and straightforward process that we

are attempting to do with employers to make sure that they can

understand the process.

But so far, as we understand it, you have not issued a final rule

which would align the I–9 verification documents with the 1996

amendments. I am wondering, what is the plan of your agency to

do so, and does it require legislation or can you promulgate a rule?

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What is the delay and is that a dis-incentive to employers who are

trying to understand the bureaucratic maze of paperwork?

Ms. SPOSATO. Madam Chair, that is a great question. As I mentioned in my oral statement, my organization came to being in February. So I really can’t speak to why something hasn’t happened

previously. But I can tell you that I agree with you completely that

the I–9 form and process needs to be simplified. I do have staff

working on it and I have a pledge from my colleague here in ICE

that they will work with us to simplify the form, reducing the number of documents that may be presented to employers.

Combined with mandatory employment verification through data

bases, I think that will be a tremendous advance in stemming illegal immigration.

Mrs. MILLER. Even though you are not able to answer my question here today, obviously, about promulgating a rule, or passing

a final rule, the committee is interested in knowing what the time

line is from your agency on that. If you could get back to us on

that, I would appreciate that.

Ms. SPOSATO. I will do that.

Mrs. MILLER. If I could, to the Department of Labor, Mr. Robinson, again on this I–9 form, and I think you testified, I was trying

to take some notes during your testimony, that the Department of

Labor has no authority to issue employers a violation, even after

you might have determined that a violation of immigration laws

has occurred. Are your field officers trained to detect fraud? How

are they determining that a violation has occurred? Are they

trained to detect fraud, for instance, on these I–9 forms? Do they

know it when they see it?

Mr. ROBINSON. Madam Chair, the review that our field officers

and investigators do is a review of the face of the form. So they

look for irregularities, refusals, numbers that might be the same,

things of that nature. That is what they report. As part of what

we do train our employers, our investigators, they do those through

training, but we try to be, if you will, eyes, and then we use that

to report to Homeland Security.

Mrs. MILLER. So you don’t have the authority to issue a violation.

Would it be helpful, would it assist you if you did have such authority, rather than transferring that information to another agency? And when you do so, do you even followup to see what has happened with that?

Mr. ROBINSON. Well, Madam Chair, I think our No. 1 priority is

to make sure that, for example, the Fair Labor Standards Act is

enforced correctly. I think that is something that Congress should

evaluate and debate. As we noted earlier, we report these types of

violations to Homeland Security, which has been the enforcer, if

you will, under the INA. But I think that is something that the administration would enter into debate as well as discussions with

Congress, to determine what would be the best appropriate program.

Mrs. MILLER. OK. It is interesting, every one of you obviously

has a mission. Yours is the Fair Labor Standards, yours is to collect taxes, etc. But before we do all these things, we are still Americans and we need to enforce the law. And we need to give you the

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tools to assist to break down these silos. I think that is something

that is really becoming very clear to the committee today.

Mr. Lynch.

Mr. LYNCH. Thank you, Madam Chair.

Let me just join the chorus here in calling for a comprehensive

immigration bill. I personally think that we have so inflated that

political football that I don’t hold much hope for it. Maybe after

elections are over, maybe cooler heads prevail and common sense

comes to pass on a lot of people, and we can do something. I really

recognize the need for immigration. This country’s demand for engineers and scientists and our future is tied directly to our immigration policy, not to mention that it says a lot about what our

country has become and who we will be in the future.

I think we need an immigration bill that is not Mexico-centric.

I think it needs to recognize the global need for immigration to this

country. And I think we need to have a deliberate, cogent, and

workable system that doesn’t frustrate people who would genuinely

love to be U.S. citizens and who abide by the law and want to come

here and work hard and take part in the American dream. Like I

say, how we solve those problems says a lot about who we will be

in the future.

But putting that aside for a moment, I want to go back to Mr.

Burgess if I could. Let me summarize what I had asked before of

Mr. Gerry. Do you think it is possible to increase the flow of information from the Social Security Administration, from the IRS as

well, to the Department of Homeland Security, but at the same

time respecting taxpayers’ privacy. Is there a way to enhance what

we are doing right now without going over the line that apparently

has been drawn?

Mr. BURGESS. Congressman, the problem I see right now in reference to Code Section 6103 is that, in my opinion, it would actually take an amendment of that section to provide an exception. It

does govern, it is obviously there to protect taxpayer privacy of

their tax-related data. It is a fundamental foundation of our tax

system.

So I believe that it would actually take an amendment of that

particular Code section.

Mr. LYNCH. All right. Thank you, Mr. Burgess.

Mrs. MILLER. Mr. Bilbray.

Mr. BILBRAY. Thank you very much, Madam Chair.

Mr. Burgess, that whole privacy thing sort of struck me hard, because I was required, the State of California demanded that I show

my tax return to be able to get in-State tuition for my children. I

just wonder where the privacy issue is there, when you have to

give that kind of document to be able to justify basically a taxpayer’s right.

I would like an answer from the two ends on one issue. I think

from the hearings that we have had, let me just first off really congratulate the ranking member. I appreciate his attitude about this

whole issue. But one of the things that has really come down from

the hearings is this lack of not crackingdown on illegal immigration, but the lack of real, substantial crackdown on illegal employment. One of the basic issues that keeps being raised by the business community is the 1986 law. When it came to enforcement, it

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had things like the civil rights issues and the discrimination issues,

almost to the point where you don’t do it.

H.R. 98, which really needs work, I think Democrats and Republicans can meet and agree on something, and that is, let’s make it

so simple for an employer to know who is qualified to work here

and who is not that there is no excuse to hire somebody who isn’t.

And H.R. 98 is a bill by Chairman Dreier and Silvestre Reyes of

Texas that basically says, let’s upgrade the Social Security card to

a tamper-resistant document like our driver’s license. That and

only that would be the document that you would check to get the

Social Security number you require.

Has the Social Security Administration taken a position on H.R.

98 yet?

Mr. GERRY. No, Mr. Bilbray, we haven’t. Obviously the focus, and

we have been working on this with IRS and DHS, has been the immigration issue. Of course, H.R. 98, as you are describing it, would

go well beyond that. I testified before the Senate Judiciary Committee where we had members who were interested in a question

of estimates of cost if we were to have a hard or tamper-resistant

card. So we have provided some testimony with respect to what we

think it would cost for the agency to do that. But we have not

looked at the question as a policy matter or provided any kind of

an answer.

Mr. BILBRAY. Although, you are aware that their bill only requires new hirees to get the document.

Mr. Burgess, one of the things I saw when I was a tax consultant, my family still runs the business, and we don’t talk about this

now, is the stealing of identification by illegals by using Social Security numbers. When an auditor tells you, Mr. Jones, you have

three jobs that you haven’t disclosed, and you have to prove that

somehow an illegal got there, wouldn’t the fact that if we simplify

it to where, when an employer gets a number they get it off a tamper-resistant card, rather than just taking the word of somebody?

Has your department taken a look at that at all, or do you have

a position on H.R. 98? Or do you personally have an opinion about

that kind of approach?

Mr. BURGESS. Congressman, I would defer that to Treasury. I

can speak to the fact in terms of, as I have indicated in my testimony, one of the problems that we have had in terms of enforcing

penalties for inaccurate numbers is the fact that the employer relies on information that is furnished by the employee.

Mr. BILBRAY. OK. Mr. Allen, I want to ask you a question about

your guest worker program. Your guest worker program is being

supported by the administration. Who would qualify to get into

that guest worker program?

Mr. ALLEN. I think as I testified before, it is not ICE’s program,

we would not administer it. I will defer to CIS on what the criteria

would be.

Mr. BILBRAY. Anybody from the administration, anybody from

the administration, who qualifies under this guest worker program?

Ms. SPOSATO. I believe that the administration has asked the

Congress to propose a guest worker program. The only proposal

that I am aware of is the Senate bill. That proposal, at the risk

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of summarizing it incompletely or inaccurately, I believe it allows

people who have been in the United States for a certain amount

of time to apply for and be granted guest worker status if they pass

security checks.

Mr. BILBRAY. When you said then, are you talking about legal or

are you talking about illegally in the country for a certain amount

of time?

Ms. SPOSATO. I believe that the Senate proposal covers people regardless of whether their status in the United States today is legal

or illegal.

Mr. BILBRAY. OK. Would somebody who is not in the United

States, who has never entered the United States, would they be allowed to participate in that program?

Ms. SPOSATO. I believe that is also a part of the Senate bill.

Mr. BILBRAY. And who would have priority over, what would you

do with the illegals who are here now? Where do they stand in this

program?

Ms. SPOSATO. Again, I am a little bit reluctant to be precise, because I am not that familiar with the ins and outs of the bill. But

I believe that if the person who is in the United States today illegally has been here for a specified amount of time they are allowed

to a qualify for the——

Mr. BILBRAY. My question is, if you have never been here legally,

how do you qualify for the 2-years to 5 years of being here?

Ms. SPOSATO. Under that bill, as I understand it, it is physical

presence, not legal presence, that matters.

Mr. BILBRAY. So what you are telling me is that those who are

waiting in other countries with applications to emigrate, or to try

to get a work card, they would not qualify under this guest worker

program, but somebody who has violated our immigration laws for

5 years would qualify under the program?

Mr. GERRY. Let me just clarify. What we are talking about is a

Senate bill. I am looking at a document issued by the White House

Office of Communications on June 1st in which the President outlines his principles for what a guest worker program would be. And

they are inconsistent with what we are now talking about.

Mr. BILBRAY. Right. And that is what I want to clarify. Because

the President supported the House bill strongly before it was

passed. And now the Senate is proposing a bill that would allow

somebody who is illegally in the country to have access to a guest

worker program that those who have never violated our immigration laws would not qualify for, which really violates the original

context that we never allow, the administration said we do not

allow those who are illegally here to move ahead of those who have

applied.

We have almost 100 million people that would one way or the

other love to emigrate here. Then we end up with this conflict. So

I just wanted to clarify that, because it is a very important message, not only to those who are illegally in this country, but those

who are outside the country, listening to this debate. Because right

now what they are saying down in Guahaca is, my cousin who

broke the law is going to qualify for a program that I am not going

to qualify for, because I didn’t break the law. That is a very strong

message.

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Mr. GERRY. If you would like, I can read from this.

Mr. BILBRAY. Go ahead.

Mr. GERRY. I am just reading from the President. This is the

White House Office of Communications, June 1st. ‘‘A temporary

worker program would create a legal path for foreign workers to

enter our country in an orderly way for a limited period of time.’’

That is the first statement. Then below that, ‘‘The President believes illegal immigrants who have roots in our country and want

to stay,’’ so that is the second group of people, ‘‘should have to pay

a meaningful penalty for breaking the law, pay their taxes, learn

English and work in a job a number of years. People who meet

these conditions should eventually be permitted to apply for citizenship like other foreign workers, but approval would not be automatic and they will have to wait in line behind those who played

by the rules and followed the law.’’

Mr. BILBRAY. OK, that is the catch word, Mr. Gerry.

Madam Chair, we have to clarify. This country takes almost a

million legal immigrants a year, more than the rest of the world

combined. And the fact is, Mr. Gerry, in reality, if you put them

behind everyone who is playing by the rules, they will never enter

this country, because we never take everyone who is applying.

So that word about putting them behind, if it is truly the intent

of the legislation, then you have to say that in reality, we are never

going to process them, because we have those who are playing by

the rules who will never get through the system themselves.

Mr. GERRY. I just want to clarify, I am not speculating on the

intent of the legislation. I am just talking about what the President

has laid out as the administration’s view of what the legislation

should include.

Mrs. MILLER. I appreciate that, and I am going to say that the

gentleman’s time has expired. And I am going to conclude the hearing as well, because we have another subcommittee that wants to

use this room here shortly. But we certainly, on behalf of the entire

committee, appreciate all of the witnesses coming here today.

Obviously the issue of illegal immigration is a very emotional one

for every American. It is a very complicated issue as well. When

you see the House and the Senate at loggerheads over various aspects of their individual bills, in all the different nuances within

that, it is a very difficult issue as the Congress is reflective, I

think, of what is happening nationally with the electorate. And it

is not going to go away after the election, no matter what happens.

So that again was the purpose of this hearing today. I think the

committee got a lot of good information about possible opportunities that we have again to assist the various agencies to enforce

current laws, regardless of what happens, whether or not we pass

any further immigration legislation. What we have currently on the

books, I think we have a huge amount of opportunity to do the

right thing for our Nation as well.

With that, again, we appreciate all of the witnesses’ attendance

today.

Mr. BILBRAY. Madam Chair.

Mrs. MILLER. Mr. Bilbray.

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Mr. BILBRAY. I would just like to thank you again for allowing

me to participate, and I would like to compliment Mr. Allen. He

looks much younger than he really is. [Laughter.]

Mrs. MILLER. Thank you very much.

With that, the committee will be adjourned.

[Whereupon, at 11:40 a.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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