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PROBLEMS IN THE CURRENT EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT SYSTEM

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

CITIZENSHIP, REFUGEES, BORDER SECURITY, 

AND INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 24, 2007

Serial No. 110–17

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES,

BORDER SECURITY, AND INTERNATIONAL LAW

ZOE LOFGREN, California, Chairwoman

LUIS V. GUTIERREZ, Illinois 

HOWARD L. BERMAN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

LINDA T. SA ́ NCHEZ, California 

ARTUR DAVIS, Alabama 

KEITH ELLISON, Minnesota 

STEVE KING, Iowa 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas

UR MENDOZA JADDOU, Chief Counsel 

GEORGE FISHMAN, Minority Counsel 

(III)

C O N T E N T S 

APRIL 24, 2007

OPENING STATEMENT 

Page 

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

of California, and Chairwoman, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 1

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 3

WITNESSES 

Mr. Jonathan R. Scharfen, Deputy Director, United States Citizenship and 

Immigration Services, Department of Homeland Security 

Oral Testimony ..................................................................................................... 6

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

Mr. John Shandley, Senior Vice President Human Resources, Swift & Company 

Oral Testimony ..................................................................................................... 35

Prepared Statement ............................................................................................. 38

Mr. Stephen W. Yale-Loehr, Miller Mayer, LLP, Adjunct Professor, Cornell 

Law School 

Oral Testimony ..................................................................................................... 42

Prepared Statement ............................................................................................. 44

Mr. Marc Rosenblum, Ph.D., Department of Political Science, University of 

New Orleans 

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

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

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on 

Immigration, Citizenship, Refugees, Border Security, and International 

Law ........................................................................................................................ 2

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ....... 4

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

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 85

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Jonathan R. Scharfen, Deputy Director, United States Citizenship 

and Immigration Services, Department of Homeland Security to the Honorable John Conyers, Jr., Chairman, Committee on the Judiciary ..................... 92

INS Basic Pilot Evaluation Summary Report submitted to the U.S. Department of Justice, Immigration and Naturalization Service, prepared by the 

Institute for Survey Research, Temple University, and Westat on January 

29, 2002 ................................................................................................................. 93

Page

IV

Interim Findings of the Web-Based Basic Pilot Evaluation submitted to the 

U.S. Department of Homeland Security, prepared by Westat in December 

2006, and accompanying letter from Jonathan R. Scharfen, Deputy Director, United States Citizenship and Immigration Services, Department of 

Homeland Security to the Honorable Zoe Lofgren, Chairwoman, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and 

International Law ................................................................................................ 145

‘‘Alternative strategies for preventing false negatives and identity theft problems iin an electronic eligibility verification system’’ by Marc Rosenblum, 

Ph.D., Department of Political Science, University of New Orleans ............... 265

(1)

PROBLEMS IN THE CURRENT EMPLOYMENT 

VERIFICATION AND WORKSITE ENFORCEMENT SYSTEM 

TUESDAY, APRIL 24, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, 

REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 11:04 a.m., in 

Room 2226, Rayburn House Office Building, the Honorable Zoe 

Lofgren (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Lofgren, Berman, Jackson Lee, 

Delahunt, Sanchez, Conyers, King, Gallegly, and Gohmert. 

Staff present: Ur Mendoza Jaddou, Chief Counsel; J. Traci Hong, 

Majority Counsel; Benjamin Staub, Professional Staff Member; and 

George Fishman, Minority Counsel. 

Ms. LOFGREN. This hearing of the Subcommittee on Immigration, 

Citizenship, Refugees, Border Security, and International Law will 

come to order. 

I would like to welcome the Immigration Subcommittee Members, our witnesses, and members of the public who are here today 

at the Subcommittee’s fourth hearing on comprehensive immigration reform issues. 

At our first hearing at Ellis Island in the shadows of the Statue 

of Liberty and in the Great Hall where 12 million immigrants were 

processed in a controlled, orderly and fair manner, we heard from 

witnesses who explained why our Nation needs comprehensive immigration reform. 

Our border patrol chief, David Aguilar, said we need comprehensive immigration reform to secure our borders. Demographer 

Dowell Myers said comprehensive immigration reform is critical to 

prepare for the declining birthrates and aging population. Economist Dan Siciliano explained that immigration is good for the economy, good for jobs, and a critical part of our Nation’s prosperity. 

Historian Daniel Tichenor told us that each new wave of immigrants has been scorned by critics only later to be among our most 

accomplished and loyal citizens. 

At our second and third hearings last week, we learned about the 

shortfalls of the 1986 and 1996 immigration legislation to ensure 

that we do not repeat the mistakes made in those last two reforms 

of immigration law. 

2

One theme that arose in both hearings is the inability of the current paper and electronic systems to accurately verify the immigration status and employment eligibility of workers in the United 

States. 

Since one of the main reasons for undocumented immigration is 

the lure of jobs in the United States, it is imperative that comprehensive immigration reform include an employment verification 

system that prevents employment of unauthorized immigrants. 

We will learn today that the employment verification systems 

created in 1986 and 1996 fail to meet that goal. 

In our second hearing on unemployment verification, currently 

scheduled on Thursday, we will look for some of the potential solutions that will help end illegal immigration. 

Employment verification is the one component of comprehensive 

immigration reform that will affect all workers in the United 

States, including U.S. citizens, lawful permanent residents, and 

others legally authorized to work in the United States. 

Thus it is imperative that Congress ensure that any employment 

eligibility verification system enacted as part of comprehensive immigration reform is designed and implemented properly. 

I look forward to hearing from our witnesses today, who will each 

provide an explanation of the problems of our current employment 

verification system, each from their own perspective, including the 

perspective of employers who attempted to follow the law but still 

got caught up in an enforcement action by Immigration Customs 

and Enforcement. 

With these problems identified, we can move to our next hearing 

to exam proposed solutions for an employment verification system 

in comprehensive immigration reform. 

[The prepared statement of Ms. Lofgren follows:]

PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL

LAW

I would like to welcome the Immigration Subcommittee Members, our witnesses, 

and members of the public that are here today for the Subcommittee’s fourth hearing on comprehensive immigration reform. 

In our first hearing at Ellis Island, in the shadow of the Statue of Liberty and 

in the Great Hall where 12 million immigrants were processed in a controlled, orderly, and fair manner, we heard from witnesses who explained why our nation 

needs comprehensive immigration reform.

• Our Border Patrol Chief, David Aguilar, said we need comprehensive immigration reform to secure our borders.

• Demographer Dowell Myers said comprehensive immigration reform is critical 

to prepare for a declining birth rate and aging population.

• Economist Dan Siciliano explained that immigration is good for the economy, 

good for jobs, and a critical part of our nation’s prosperity.

• Historian Daniel Tichenor told us that each new wave of immigrants has been 

scorned by critics only later to be among our most accomplished and loyal citizens.

In our second and third hearings last week, we learned about the shortfalls of 

1986 and 1996 immigration legislation to ensure that we do not repeat the mistakes 

made in those last two reforms of immigration law. One theme that arose in both 

hearings was the inability of the current paper and electronic systems to accurately 

verify the immigration status and employment eligibility of workers in the U.S. 

Since one of the main reasons for undocumented immigration is the lure of jobs 

in the U.S., it is imperative that comprehensive immigration reform include an emVerDate 0ct 09 2002 14:17 Jul 19, 2007 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\042407\34925.000 HJUD1 PsN: DOUGA
3

ployment verification system that prevents employment of unauthorized immigrants. We will learn today that the employment verification systems created in 

1986 and 1996 fail to meet that goal. In our second hearing on employment 

verification on Thursday, we will explore some of the potential solutions that will 

help end illegal immigration. 

Employment verification is the one component of comprehensive immigration reform that will affect all workers in the U.S., including U.S. citizens, lawful permanent residents, and others legally authorized to work in the U.S. Thus, it is imperative that Congress ensure that any employment eligibility verification system enacted as a part of comprehensive immigration reform is designed and implemented 

properly. 

I look forward to hearing from our witnesses today who will each provide an explanation of the problems of our current employment verification system, each from 

their own perspective, including the perspective of an employer who attempted to 

follow the law but still got caught up in an enforcement action by Immigration Customs and Enforcement. 

With these problems identified, we can then move to our next hearing to examine 

proposed solutions for an employment verification system in comprehensive immigration reform.

Ms. LOFGREN. I would now recognize our distinguished Ranking 

minority Member, Mr. Steve King, for his opening statement. 

Mr. KING. Thank you, Madam Chair, and thank you for holding 

this hearing. 

In the Immigration Reform and Control Act, known as IRCA, in 

1986, Congress tried to end the job magnet that drew illegal aliens 

to the United States by making it unlawful to knowingly hire illegal aliens and by requiring employers to check the documents of 

new employees. 

In the mid-1990’s, failure of the Federal Government to enforce 

employer sanctions that were set out in IRCA and the failure of the 

Employment Eligibility Verification provisions in IRCA to help 

curb the illegal employment of aliens—all those failures led to calls 

for a better way to ensure that employers hire only citizens and 

aliens eligible to work in the United States. 

In 1996, the Illegal Immigration Reform and Immigration Responsibility Act answered those calls by establishing the Basic Pilot 

Employment Eligibility and Verification Program. That Basic Pilot 

program allows employers to check workers’ Social Security and 

Alien Identification Numbers against Social Security Administration and DHS workers in order to ensure that new hires are genuinely eligible to work. 

The program is voluntary for employers in all 50 States and is 

now used by over 15,500 employers, one of whom will be before us 

today. 

When using the Basic Pilot program, an employer has 3 days 

from the time they hire an employee to contact the Federal Government by Internet to determine the validity of the employee’s Social 

Security Number or Alien Identification Number. The numbers are 

checked against Social Security Administration’s database and 

DHS database. 

Within 3 days, the employer will receive a confirmation that the 

employee is eligible to work or a tentative non-confirmation indicating that the work eligibility of the employee cannot be validated. 

Once a tentative non-confirmation is received, the employee can 

request secondary verification and contact DHS or SSA to determine how government records differ from the information submitted by the employee. 

4

DHS has another 10 days in which to further investigate the discrepancy, after which the employer will receive a confirmation or 

a denial of work eligibility number. If the employer receives a final 

non-confirmation, they can then fire the employee. 

The Basic Pilot program has been remarkably successful. A study 

found that an overwhelming majority of employers participating 

found the Basic Pilot program to be an effective and reliable tool 

for employment verification. In fact, according to a recent National 

Federation of Independent Business survey of its members, 76 percent said use of a phone or Internet employment verification system would be a minimal burden or not a burden at all. 

Last Congress, this House passed legislation that would have 

made it mandatory. The Basic Pilot is not perfect. In fact, a recent 

high-profile case highlights that a business’s use of Basic Pilot does 

not ensure that it is not hiring illegal immigrants because the program is vulnerable to identity theft. 

Swift & Company, whose representative, Mr. Shandley, will be 

testifying at this hearing, has participated in the Basic Pilot program since 1997. However, last December exactly 1,282 of its employees were arrested by the Immigration and Customs Enforcement during a worksite enforcement action. ICE suspected a pattern of identity theft and conducted the enforcement action. Many 

of the Social Security numbers submitted by Swift employees were 

genuine but had been stolen or purchased and were being used illegally. 

So, there is no doubt that Basic Pilot needs some tools to deal 

with identity theft. DHS needs to have access to Social Security 

Administration data so that it can investigate situations in which 

a single Social Security number was submitted more than once for 

the same employer but where a number was submitted by multiple 

employers in a manner that suggested fraud. 

The vast majority of American businesses want to hire legal 

workers. And most would like a quick and easy system to verify 

employee work eligibility. The Basic Pilot program holds out the 

promise that it can meet these goals. 

I look forward to the testimony and hope we can minimize the 

burden and still provide for a more effective Basic Pilot program. 

Madam Chair, I thank you, and I yield back the balance of my 

time. 

Ms. LOFGREN. Thank you. 

Mr. King, Mr. Conyers will join us later and will be able to give 

us his opening statement at that time. I don’t know if Mr. Smith 

is expected, but we would extend the same courtesy to him. 

We have two panels today. The first panel is by himself. 

And I would ask that other Members submit their statement for 

the record so that I can introduce Deputy Director of U.S. Citizenship and Immigration Services Jonathon Scharfen. 

[The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

Today marks the third hearing in a series of hearings dealing with comprehensive 

immigration reform. This subcommittee previously dealt with the shortfalls of the 

1986 and 1996 immigration reforms, and a consistent theme throughout both hearVerDate 0ct 09 2002 14:17 Jul 19, 2007 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\042407\34925.000 HJUD1 PsN: DOUGA
5

ings was the difficulty that employers encountered when they attempted to verify 

that potential foreign employees have work authorization. Making a mistake could 

subject an employer to fines or more serious sanctions for employing a foreign worker who does not have work authorization. Some employers avoid that risk by simply 

refusing to hire foreign-looking employees. Therefore, as Members of the 110th Congress we must ensure that we find practical solutions to fixing the employment eligibility verification system. 

HISTORY

In 1986 Congress passed the Immigration Reform and Control Act of 1986 (IRCA). 

Congress’ intent was to create a system that could verify the employment eligibility 

of potential foreign workers, and impose sanctions on employers from knowingly 

hire workers who do not have employment authorization. that were not authorized. 

IRCA established the I-9 Form employment eligibility verification system. Under 

this system a potential foreign employee has to present valid documentation to establish his identity and his authorization to work in the United States, such as a 

U.S. passport, permanent resident card, driver’s license, or Social Security card. 

However, with any system relying on documents the potential for fraud was great, 

and this became evident in the years after the legislation was enacted. The prevalence of fraudulent documents, either counterfeit or real but used fraudulently, 

makes it difficult for employers to determine who has legal authorization to work 

in the United States. Also, employers have to be mindful against discrimination during the verification process. In addition, the executive branch has not made a sustained, determined effort to enforce employer sanctions. 

BASIC PILOT PROGRAM

In reaction to an ongoing problem with the employment of undocumented workers 

that was only exasperated by the shortcomings of IRCA, Congress created the Basic 

Pilot Program (BPP). The BPP involves verification checks of the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases, using 

an automated system to verify the employment authorization of all newly hired employees. Participation in this program has been voluntary, and free to participating 

employers. The intent of the BPP was to remove the guesswork from document review during the I-9 process; allow participating employers to confirm employment 

eligibility of all newly hired employees; improve the accuracy of wage and tax reporting; protect jobs for authorized United States workers. The program has been 

available to all employers in the States of California, Florida, Illinois, New York, 

and Texas since November 1997 and to employers in Nebraska since March 1999. 

The program originally expired in November 2001, but was extended to November 

2008 thru the Basic Pilot Program Extension and Expansion Act of 2003. 

The Pilot Program has had numerous problems ranging from inaccurate and outdated information in the DHS and SSA databases, misuse of the program by employers, and a lack of adequate privacy protections. In 2002, the Government Accountability Office (GAO) issued a report stating, ‘‘existing weaknesses in the program, such as the inability of the program to detect identity fraud, delays in entering data into DHS databases, and some employer noncompliance with pilot program 

requirements, could become 

more significant and additional resources could be needed if employer participation in the program greatly increased or was made mandatory.’’

Therefore, as we move forward in this immigration debate, we need to adhere to 

practicality. We can not allow emotion, and our ambition to cater to all of the interested parties to cloud our view. Comprehensive immigration reform must include a 

viable employer sanctions system in addition to creating an opportunity for undocumented workers to earn legal status, and securing our borders. In the end, this debate is really about the American worker and the American family, and what we 

are doing to protect them, because when we protect the American worker from wage 

and workplace exploitation we protect everyone in pursuit of the American dream.

Ms. LOFGREN. Prior to assuming his post at USCIS, Mr. Scharfen 

served for 25 years in the U.S. Marine Corps, retiring in 2003 at 

the rank of colonel. Mr. Scharfen is no stranger to the House of 

Representatives, however, where he served as both Chief Counsel 

and Deputy Staff Director for the House International Relations 

Committee following his military service. 

6

Mr. Scharfen received his bachelor’s degree from the University 

of Virginia, his JD from the University of Notre Dame, and his 

LLM from the University of San Diego. 

Mr. Scharfen, your written statement will be made part of the 

record in its entirety, so I would ask that you now summarize your 

testimony in 5 minutes or less. 

And to help you stay within the time, there is a timing light at 

your table. When 1 minute remains, the light will switch from 

green to yellow, and then to red when the 5 minutes are up. 

And I would let all the Members who are present know that our 

mikes are live at all times. 

Mr. Scharfen, if you would begin. 

TESTIMONY OF JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, 

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, 

DEPARTMENT OF HOMELAND SECURITY 

Mr. SCHARFEN. Thank you very much, ma’am. I am grateful for 

this opportunity to appear before the Subcommittee to discuss the 

Employment Eligibility Verification program administered by 

United States Citizenship and Immigration Services, USCIS. 

Previously known as the Basic Pilot program, this unique program provides employment eligibility information on newly hired 

employees to more than 16,000 participating American employers. 

Any company anywhere in America can try the Employment Eligibility Verification System, EEVS, and use it for free over an easyto-use government web site. EEVS is a valuable tool that helps employers comply with immigration law while also strengthening 

worksite enforcement. 

This year, the program is growing by over 1,000 employers every 

month. We project that the EEVS system will verify over 3 million 

new hires this fiscal year at more than 71,000 worksites. 

Chairwoman Lofgren, California has 2,104 participating employers in this program, representing over 12,000 sites. 

In the state of Iowa, Ranking Member King, there are 148 participating employers, representing 659 sites. For fiscal year 2007, USCIS received $114 million from Congress 

for the expansion and improvement of EEVS to better support an 

increasing amount of employers. Appropriations have been used to 

test the photo screening tool, incorporate additional data sources to 

deter fraud and cases of identity theft and streamline the employer 

enrollment process by making it completely electronic. 

USCIS is improving the program in many other ways, including 

updating training materials, creating more user-friendly web 

pages, providing better customer support and exploring additional 

query access methods that could be used by employers that do not 

have Web access. We are also continuing to conduct independent 

evaluations to provide additional input for improving the program. 

An accurate and secure Employment Eligibility Verification program is a critical component of efforts to improve worksite enforcement. Better worksite enforcement is a key component of any proposal to create a Temporary Worker Program. The success of the 

TWP will be essential to reducing the pressure on our border. 

A secure border will allow us to free up much needed resources, 

enforce our laws and protect our homeland against foreign threat. 

7

It is all connected. Each link in this chain is critical to its overall 

integrity and our Nation’s homeland security. 

The ultimate success of a future electronic eligibility verification 

program will rely on public-private cooperation and active employer 

participation in government partnerships to secure our workforce. 

Our work is critically important to the future of our Nation and directly impacts national security, our economy and individual lives. 

We all share in the responsibility to make our Nation greater. 

I look forward to working with you to advance our mutual interests and assist those who come here seeking freedom, prosperity 

and hope for a better future. 

Thank you, and I look forward to answering your questions. 

But at this time, Chairwoman, I would like to ask permission to 

have Ms. Gerri Ratliff, who is the Director of our Verification Division, join me at the table here, so she can do a quick demonstration 

on the EEVS system. 

Ms. LOFGREN. Without objection. 

Ms. RATLIFF. Good morning. 

This is the employer’s homepage for the Basic Pilot. When an 

employer is ready to perform a query on a new hire, they go to this 

screen and input information from the Form I-9. So you can see it 

is basic information, very simple: name, date of birth, SSN, citizenship status. 

You can see here in the middle of the screen, where it says ‘‘employment authorized′′—or you may not be able to see. In the middle 

of the screen, it says ‘‘employment authorized,’’ and this happens 

92 percent of the time for queries. The employer then is essentially 

done with the verification. 

In the percentage of cases, about 7 percent, where there is a mismatch, the employer gets a screen like this that will indicate the 

type of mismatch. 

Our latest functionality that we wanted to show you today is a 

pilot with about 40 employers called the photo screening tool. This 

is a query by card number. It is a query for new hires who are noncitizens showing a green card or employment authorization document for Form I-9 purposes, and we are querying by that card 

number to display on the screen the photo that we, USCIS, put on 

that card. 

If the photo does not match the photo on the document the employee showed the employer 100 percent, then the card has been 

either photo substituted or is completely a fraudulent card. And 

this pilot has already detected one case of fraud in about 300 queries that have been run, and that employee did not contest that it 

was a fraudulent document. 

The information is also verified against our databases in addition 

to showing the photo that should be on the screen. 

Thank you very much. 

Ms. LOFGREN. I should note for those whose vision is not good 

enough to see the writing on that screen, that we do have the 

PowerPoint attached to the testimony of the witness for our review. 

Thank you very much for your testimony. 

[The prepared statement of Mr. Scharfen follows:]

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PREPARED STATEMENT OF JOHNATHAN R. SCHARFEN


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Ms. LOFGREN. I I will begin the 5 minutes of questioning. 

Mr. Scharfen, you say that over 92 percent of the queries from 

employers receive an instantaneous clearance within 3 seconds, but 

it is that 8 percent that we need to resolve. The Bureau of Labor 

and Statistics estimates that the total number of employees in the 

United States is 146.3 million. Eight percent of that workforce 

would be 11,704,000. 

As the United States contemplates the Basic Pilot program and 

expansion, are you equipped to deal with that volume of inquiries? 

And, if so, in what timeframe? 

Mr. SCHARFEN. Yes, ma’am. Right now, we are taking 3 million 

inquiries a year. Our current capacity is for 25 million inquiries a 

year. However, we are also taking approximately 10 million inquiries a year from the State programs. So that puts us at 13 million. 

We have capacity for 25 million. So right now, we are about halfcapacity. 

Ms. LOFGREN. I see. 

Mr. SCHARFEN. So we could double it today. 

Ms. LOFGREN. I want to make sure I understood your testimony 

correctly. Was it your testimony that the Social Security Administration Numident database and the USCIS database are not currently interoperable? 

Mr. SCHARFEN. I am sorry, Madam Chairwoman. If the databases——

Ms. LOFGREN. USCIS and the Social Security Numident, are they 

interoperable databases? 

Mr. SCHARFEN. What we do is we make an electronic query to 

the Social Security——

Ms. LOFGREN. So it is a query system. 

Mr. SCHARFEN. Yes, ma’am. 

Ms. LOFGREN. I am going to give you an example, and I want you 

to tell me how this could happen and how what you are doing will 

change it. It is a real-life story that happened with an employee of 

the House of Representatives who was hired on March 2. 

This individual is a United States citizen, came to the United 

States as a child in 1980 and has been a U.S. citizen since 1992. 

Because the United States House of Representatives participates in 

screening, she went down to the Committee, completed the I-9, 

showed them her United States passport, and it came back as a 

tentative non-confirmation. 

So this person, the next day, got 8 Federal Government work 

days to resolve it—even though it was actually dated the day after 

she found out, so it ended up being only 7—and ended up having 

to go to several meetings, to the Social Security office, back to her 

employer, to House Employee Services. I mean, it took about six or 

seven meetings. And luckily this person had her passport on her. 

She was told that even though she has always been legal to 

work, I mean, she came as a lawful permanent resident, that that 

didn’t matter, that wouldn’t be reflected in the Social Security 

database. 

And I am just mindful that Ms. Hong here, who is our counsel, 

if that is what is happening to her in the Basic Pilot, what is happening to someone who isn’t an immigration lawyer, who doesn’t 

work for the Immigration Subcommittee, who doesn’t have access 

26

to the Social Security Office in the Rayburn Building, and whose 

boss is not the Chair of the Immigration Subcommittee? [Laughter.] 

Mr. SCHARFEN. That is a good question, Madam Chairwoman. I 

will try to answer as best I can. 

We understand that the system today is not perfect, and we are 

taking the large investment that Congress has made, $110 million, 

and during the past year we have been trying to make improvements to the system. 

Unfortunately, there is a fact pattern there that has occurred 

previously, where someone has been born outside the United 

States, whether as a citizen or otherwise, when they come to the 

United States they have been having some problems with the 

EEVS process. And so that is one fact pattern unfortunately that 

we are struggling with. 

Some of the ways that we are trying to correct that is that we 

are adding to the databases that make up the system on the 

USCIS side. We are also working closely with the Social Security 

Administration, working through those types of issues as well. 

Ms. LOFGREN. So are you saying that it—we have, for example, 

in Silicon Valley a tremendous percentage of our population is a 

naturalized citizen. I mean, these are engineers from all over the 

world, that they are all going to get a hit as possible non——

Mr. SCHARFEN. No. But there have been—any of these types of 

hits, obviously, are too many. And in looking at the data that we 

have of non-confirmations that should have been confirmations, we 

have found this sort of information, this sort of fact pattern. 

Ms. LOFGREN. I am going to end because my time is up and I 

want to set an example, so I will turn now to Mr. King for his 5 

minutes of questions. 

Mr. KING. Thank you, Madam Chair. 

Mr. Scharfen, as I review this testimony, it occurs to me that we 

have also been talking, and the President, as I recall, has been 

talking about biometrics in addition to anything you might be 

using right now with your improvement in the photo tool incorporation. 

Have you considered incorporating biometrics into that? Because 

as I recall the gentlelady’s testimony about matching the picture on 

the card with the picture that is in the database, what about 

matching the face that is in front of you at the same time? 

Mr. SCHARFEN. Yes, sir. The current photo pilot is doing just 

that. 

What we have done is, we have taken the data, we have increased our database and are taking the photographs from the I551s, the green cards, and the EADSs, the work permits, and we 

have taken those photographs and we have put them into the system so that when you do—when a participating—we have 40 employers right now in the pilot participating with this photo——

Mr. KING. Can you identify the distinction between twin brothers 

or sisters? 

Mr. SCHARFEN. I am sorry, sir. Can you——

Mr. KING. What I really want to know is, does the employer have 

the authority to determine by visual identification, if the picture on 

27

the card matches the picture in the database but does not match 

the face in front of them, can you then dismiss that employee? 

Mr. SCHARFEN. Well, yes. He would be able to then try to ask for 

confirmation. You go through that process that you had described. 

Mr. KING. Would there be repercussions on the employer if he 

made a bad judgment call and they happened to be twins? 

Mr. SCHARFEN. I would hope that in a situation like that, that 

discretion would play into any type of enforcement action. 

Mr. KING. The reason I ask the question is because I think when 

you get into this judgment call, we had that problem in the judgment call of reasonably determining that the documents are valid. 

Now there is this question about the judgment call of being able 

to verify that the person in front of you matches the picture. 

So I submit that, can you incorporate fingerprints into this, like 

ICE has, where you put the index fingers on a cheap little camera 

and the picture shows up that matches those fingerprints? Have 

you considered going down that path with real biometrics? 

Mr. SCHARFEN. Right now, sir, we are just working with the 

photo pilot, and we are not working with using any of the fingerprints at this time. There are other biometrics that are conceivably 

possible with this program, but right now we are working on the 

photo. 

And getting back to the photo, I think that with our current system under the pilot, the emphasis has been just making sure that 

the photograph that comes up through the computer, on the computer screen, and the photo in front of you are one and the same 

and that they haven’t been doctored. 

Mr. KING. And I will concede that is a very good start. And hopefully we will also plant some seeds here that we know we are going 

to have to be facing a requirement for biometrics to really get this 

right in the longer term. 

In your written testimony, you state or indicate that we can ‘‘protect our homeland against foreign threats by implementing a temporary worker program.’’ I wonder if you could explain to this 

panel, how letting in millions of foreign workers is going to make 

the United States safer. 

Mr. SCHARFEN. I think that the President’s position would be 

that it has to be part of a comprehensive immigration reform plan. 

Mr. KING. The point of legalizing millions of people that are here 

today illegally, how does that make America safer, though? Do you 

have an understanding of that or is that the Administration’s position and that is where we are today? 

Mr. SCHARFEN. I do. I think that the Administration’s position is 

defensible in terms of looking at a comprehensive reform plan and 

that taking one piece of that reform plan in isolation won’t get you 

the right answer. 

But in terms of putting it in the larger context of the immigration reform proposal, you would increase security because you 

would be brining people out of the shadows who are working——

Mr. KING. At least those that felt comfortable that they would be 

legalized. Those that suspect that they would not be, I suspect 

would not come out of the shadows. 

I point out also that many of the people who are here illegally 

don’t have a legal existence in their own country, and how would 

28

we go about doing background checks or verifying them since they 

don’t have a birth certificate if they are not born in a hospital? 

Mr. SCHARFEN. We would be doing a full series of background 

checks that we do on immigrants coming in or other non-immigrants coming in through our systems today, whether it is the FBI 

name check, whether or not it is the arrests and warrants system. 

We would do the full security check and fingerprint check on 

these——

Mr. KING. But if someone has committed a felony in a foreign 

country and come into the United States illegally and they don’t 

have a legal existence in their home country, then do you have a 

way to verify that? Or do you just have to take them at their word? 

Mr. SCHARFEN. I think that currently our system checks are with 

the FBI and with the other arrest and watch warrants that feed 

into that process. Whether or not they would have some of the foreign information on that, I think would be questionable, but not 

necessarily preclude it, sir. 

Mr. KING. Thank you, Mr. Scharfen. 

Thank you, Madam Chair. I yield back. 

Ms. LOFGREN. Thank you. 

The gentleman from California, Mr. Berman, is recognized for 5 

minutes. 

Mr. BERMAN. Thank you, Madam Chairman. 

Could you explain how doing nothing will make us safer? 

Mr. SCHARFEN. I am not certain I could do that, Mr. Berman. 

Mr. BERMAN. Because it wouldn’t. 

Mr. SCHARFEN. Yes, sir. 

Mr. BERMAN. On the Basic Pilot, that is not a photo verification 

system. That is simply a Social Security number authenticity 

check? 

Mr. SCHARFEN. Yes, sir. Basically, today, the current Basic Pilot 

is taking a look at the information behind different cards that are 

given to the employer on the I-9 form so that you go back and you 

check the Social Security number first with the Social Security Administration and then if it is a non-citizen, you check the USCIS 

data to see whether the individual is——

Mr. BERMAN. The Social Security Administration has a special 

designation for legitimate Social Security numbers held by non-citizens? 

Mr. SCHARFEN. That is correct. 

Mr. BERMAN. What the system doesn’t tell you is whether the 

person who is asserting his or her Social Security number is in fact 

the person who has that number. 

Mr. SCHARFEN. Yes, sir. And that is the problem we had with the 

Swift case, where there was identity theft and identity fraud, sir. 

Mr. BERMAN. Let us assume for a second that wasn’t a problem. 

In order to expand that Basic Pilot program into a mandatory national system, how much time would you need? And how many new 

employees would you need? And how much more than—this year 

it was $114 million—in appropriations would you need? 

Mr. SCHARFEN. Yes, sir. I will try to give you that answer as best 

that I can, sir. 

29

It depends on what sort of program the EEVS is, whether or not 

you are going to have all new, just all new employees covering everybody——

Mr. BERMAN. Let us assume that it would be universal in terms 

of employer coverage, but it would only apply to new employees. 

Mr. SCHARFEN. We currently have a capacity of 25 million queries right now. We would have to double that to 53 million. We 

think we could do that with the current system and that all we 

would be adding onto that system would be servers. And so we 

think we could do that in short order and on the hardware capacity 

side of it we could add on to that system rather easily. 

Our intake here, the Web intake, is large. The pipe is large, if 

you will. And just adding on to the servers would not be that difficult or technical——

Mr. BERMAN. Just quantify ‘‘short order.’’

Mr. SCHARFEN. It would be less than a year, I believe. 

Mr. BERMAN. And quantify ‘‘cost of additional servers.’’

Mr. SCHARFEN. Right now, it costs $75 million just to run our 

current system a year. We would anticipate that it would be in the 

hundreds of millions of dollars, sir, to expand that. I would probably leave it at that magnitude, sir, if I could. 

Mr. BERMAN. Tell me about the photo pilot. The individual who 

applies for the job, in order to participate in this pilot, what does 

the employer have to get from the individual other than the Social 

Security number? 

Mr. SCHARFEN. The way for this to work, sir, you have to have 

a green card or an EADS, a worker authorization card. 

Mr. BERMAN. Some kind of nonimmigrant worker——

Mr. SCHARFEN. Yes, sir, or a green card that has the photo, the 

biometric, there. 

And what happens, and I will let Ms. Ratliff describe this in 

more detail since it is her program, but basically you pull it up, you 

put the number of the card into the system. It pulls up the photo 

in the system and the employer matches the two photos, but I will 

let Ms. Ratliff add anything to that. 

Ms. RATLIFF. Sir, it is query by card number so that it is a oneto-one match against our repository where we store the data that 

we put on the card, the green card or the EAD. So we are collecting 

an additional data field for card number. 

And this applies today, in sort of Phase 1, to non-citizen new 

hires who show a green card or employment document for the 

Form I-9. 

Mr. BERMAN. Let me just interject. But the employer determines 

that the card he is seeing on the screen matches the picture? There 

is no machine verification? 

Ms. RATLIFF. Correct. Today it is just a matter of the visual 

verification that the photo on the card and the photo on the screen 

are 100 percent the same, because it is the photo we put on the 

card. 

For the purpose of this pilot, we are moving very carefully, and 

if the employer thinks there is a mismatch, we are having them 

send us copies of the document so we can also visually inspect because it is just such a huge leap forward to begin incorporating this 

biometric. We want to do it quite carefully. 

30

Mr. BERMAN. I think my time is expired. 

Ms. LOFGREN. The gentleman’s time has expired. 

The gentleman from California, Mr. Gallegly, is recognized for 5 

minutes. 

Mr. GALLEGLY. I appreciate the opportunity, but since I came in 

in the middle of the hearing, I will defer. 

Ms. LOFGREN. All right. Let me call, then, on Mr. Gohmert, who 

has been here from the beginning. 

Mr. GOHMERT. Thank you, Madam Chairwoman. 

I appreciate you being here to testify. There are so many problems, it is kind of hard to know where to start. 

First of all, we had heard testimony in the last couple of years 

in this Immigration Committee that when a name is processed, 

wanting the right to come into the United States, it is put in the 

most generic form, put into the computer for potential hits or flags, 

and when those come, it goes to adjudicators, if I understood the 

process—is that correct?—to check out those flags and see if it is 

something they should be worried about or that this couldn’t possible be the person. 

Mr. SCHARFEN. Essentially, that is it. There is a two-step process 

and it goes to verifiers at the USCIS, who then work on the case, 

sir. 

Mr. GOHMERT. And one of the things that concerned me greatly 

in trying to get at why it is taking so long to process things here 

was that many of the adjudicators didn’t have the security clearance; they had not gone through the process because it costs 

money. 

They didn’t have adequate security clearances in order to access 

the FBI files, the documents, the files, the records that would allow 

them to make that determination, and that in some cases, because 

of time restraints, they eventually either just made a guess, passed 

it on or left the flag on. 

So I am wondering, how are we doing for getting security clearances for adjudicators to make those determinations, so they don’t 

just sit there? 

Mr. SCHARFEN. Sir, I think there are two issues here. One is the 

EEVS system and then the other is the FBI name check——

Mr. GOHMERT. Right. 

Mr. SCHARFEN. And the checks of watches and warrant type 

checks there. 

As to the second there, we are giving this our attention at both 

the agency and at DHS to improve our ability to do our name 

checks in a quicker, expedited and more accurate fashion, and we 

have looked at that process from start to finish. 

And as a matter of fact, I am meeting today after this hearing 

with the FBI to work on a pilot program that we hope will increase 

the efficiency with which we do our FBI name checks to make 

sure——

Mr. GOHMERT. I appreciate that, but I would sure—I am so 

pleased that the Chairwoman would have this meeting, and I hope 

will have more so we can find out what progress they are making 

in this regard. 

An anecdotal situation, but I am afraid from what I hear this is 

true across the country. We had a business in Belgium that wanted 

31

to locate in one of the towns in my district, and they wanted to hire 

workers in the community. Most of them would have been Democrats. [Laughter.] 

But all they were asking was that we have the plant manager 

from Belgium. And after about a year and a half, they are going—

this is people we could have had working for a year, year and a 

half, and all we are trying to do is get this guy through. 

I ended up talking to the company’s lawyer in New York. They said they were told, gee, if you pay $1,000 it will put it on the expedited path. So they paid $1,000. Months later, they checked, said 

we thought it was expedited, and they were, according to him, oh, 

yeah, it was expedited on that one part, but now if you want it expedited on the next part, pay another $1,000. 

And I am going, my goodness, it sounds like the United States 

is a corrupt, third-world country that may, actually, in talking to 

others that come in, they say it is easier and quicker to go into a 

third-world country and get a visa to move in there than it often 

is in the United States. 

So with all our millions, with all our technology, I am really concerned about our image abroad, and especially when we leave people without jobs simply because we can’t process one visa, one right 

to come into this country and help all of us. 

So I would like your comment on that. 

Mr. SCHARFEN. Yes, sir. We admit that it is a serious problem, 

and it is a problem that, in terms of the backlog, unfortunately, has 

been——

Mr. GOHMERT. And is there a bribe system like that, that helps 

smooth the path? An official, I mean, not illegal bribe. Just a legalized bribe system to move it forward? 

Mr. SCHARFEN. No, sir. There are some——

Mr. GOHMERT. So you are saying you can’t pay $1,000 so we need to run down who they paid the $1,000 and where it ran and who 

got the $1,000? 

Mr. SCHARFEN. There are some expedited processes in our immigration services. 

Mr. GOHMERT. So you can pay extra money to move it along. 

Mr. SCHARFEN. In some of the immigration transactions, yes, sir, 

there are expedited processes and fees that you can pay. However——

Mr. GOHMERT. You understand how that looks to the outside 

world, and even to some of us in this one? 

Mr. SCHARFEN. Yes, sir. What happens, though, if—and I don’t 

know the facts of this case, sir, and I would be happy to go back 

and take a look at it carefully, but——

Mr. GOHMERT. Well, he is in now, finally. 

Mr. SCHARFEN. I am glad to hear it. 

Mr. GOHMERT. And the Democrats are working, as they wanted 

to do all along. 

Mr. SCHARFEN. What happens, though, is that we don’t want 

anyone, we can’t allow anyone to get into the United States unless 

the FBI name check has been cleared. And that is really where we 

have this terrible backlog. And it is affecting any number of people. 

It is affecting our laws. We are being sued tremendously over 

this. It is requiring a—there is a real cost. There are costs to lives, 

32

individuals’ plans and their families. It is a cost to our economy 

and a cost to our Nation’s security, and we are working hard to fix 

the problem, sir. 

Mr. GOHMERT. Okay. 

Thank you, Madam Chairwoman. 

Ms. LOFGREN. The gentleman’s time has expired. 

Mr. Delahunt, the gentleman from Massachusetts. 

Mr. DELAHUNT. Thank you, Madam Chair. 

Let me just pick up on the theme—it is good to see you, Jock. 

Mr. SCHARFEN. Nice to see you, sir. 

Mr. DELAHUNT. Let me pick up on the theme that was laid out 

by my colleague, Mr. Gohmert. We have a real problem in terms 

of welcoming people to the country. In the year 2005, our share of 

the international visitors market, what we should have had, has 

been estimated at a loss of some $43 billion in that single year. 

You know, the problem, as Mr. Gohmert referenced, it is my understanding, and there is significant evidence to establish this 

premise, is that international businesses are now making decisions 

to relocate elsewhere rather than in the United States because of 

the problem in the anecdote that was described by my friend. 

That is serious. You know, we are a Nation of immigrants and 

all that, and we do have to provide for security, but it would appear to be in terms of the admission process, and we are talking 

people who we want in this country for our own economic prosperity, are being discouraged. 

It would just seem, and I am just giving you an opinion. I have 

had in my own Subcommittee which I chair, I have had a series 

of hearings on America’s image abroad as well as this issue of the 

decline in tourism and travel internationally that we are witnessing. 

I don’t want to get into the weeds, but it would appear, Mr. Secretary, that we have a real mess here in terms of the technology, 

and it is very, very frustrating. I don’t know what the current status is in terms of the biometric passports. I just recently returned 

from Germany. We were besieged by German officials to expand 

the visa waiver program and to enhance the Visit USA every time 

we turned around. 

Let me just pose a question, because I think this goes to Mr. 

Gohmert’s point and to the Chairwoman’s point in this case. Is 

there, within USCIS, an ombudsman? Do we have, within the 

agency, a significantly sized resource to expedite these kinds of 

problems that I think are hurting our image and are clearly impacting in a negative way our national economy in an economy that 

is increasingly subject to globalization? 

Mr. SCHARFEN. Yes, sir, we do. We have an ombudsman who has 

been there for about 4 years, and he has addressed these issues, 

and they are of concern to him, sir. 

Mr. DELAHUNT. But, I mean, I guess what I am talking about, 

Mr. Scharfen, is, it is one thing if you are counsel to the House 

Committee on Immigration, but, again, going to the problem that 

Mr. Gohmert talked about, a year and a half is just totally unacceptable. It is just totally unacceptable. 

I mean, what is the size of his staff? Are we talking five people 

or are we talking hundreds of people so that those whom we want 

33

in this country that are being impeded can pick up a phone and 

talk to somebody and have them walk through the process so that 

we can get these issues resolved? 

Mr. SCHARFEN. No, sir, he does not have 100 individuals. It is 

significantly less than that. 

Mr. DELAHUNT. What I am saying, I think these problems are everywhere, all over the system. We don’t seem to be doing well in 

the technology. You just referenced the FBI. I mean, we had a debacle in terms of $180 million computer appropriation that didn’t 

work. I mean, here we are, a leading technological Nation and we 

just can’t seem to get it together. And as a result, our image abroad 

is hurting. 

If you look at these surveys, people are opting to go elsewhere 

for school. They are going elsewhere in terms of their recreational 

travel. And they are relocating elsewhere—their business decisions 

are being impacted by what they perceive to be an unfriendly Nation in a system that they don’t want to navigate any longer. 

Ms. LOFGREN. The gentleman’s time has expired. 

The gentlelady from California is recognized for 5 minutes for 

her questions. 

Ms. SANCHEZ. Thank you, Madam Chair. 

Mr. Scharfen, can you tell me if Basic Pilot can detect in cases 

when an employer probably knowingly hires an undocumented 

worker, doesn’t enter them into the system, but then enters them 

into the system later, say, after they have filed a labor complaint? 

Mr. SCHARFEN. Right now we are working to improve that area 

of our program, ma’am. 

We have $110 million appropriated to us, and some of the improvements we are doing is in the monitoring and compliance side 

of it, and what we would like to do, we have the data but we are 

not right now monitoring it, and we are putting it into systems and 

adequately monitoring it to pick up the patterns that you have just 

identified. 

We would like to do that, and so we have a program where we 

are hiring and starting to develop different monitoring software 

and analysts so that we can look for those sorts of patterns in the 

data, so that we can make those sorts of judgments and then go 

from monitoring to compliance. 

Ms. SANCHEZ. Because right now, participation in the Basic Pilot 

program requires signing of a memorandum of understanding and 

there are certain conditions that employers have to abide by for the 

use of the program as well as the prohibited practices for using the 

program. 

But my understanding is that in an external evaluation that was 

done by Temple University, they found many employers were misusing the system and violating the terms of the memorandum of 

understanding, things like giving non-authorized people access to 

the database or information, prescreening job applicants, taking 

adverse actions against employees after receiving a tentative confirmation. 

Do you have any updates in terms of what percentage of employers who are currently using the Basic Pilot program might be misusing it? 

34

Mr. SCHARFEN. I don’t have that at my fingertips, here. Ms. 

Ratliff might have some of the data. 

But before I allow her to add that in, I would say that that sort 

of illegal conduct, some of the conduct that you just identified, is 

clearly against the law. And whether it is discrimination or otherwise. And the monitoring program that I was just discussing would 

be aimed at looking for that sort of pattern as well, where an employer is illegally screening out foreign workers, for instance, or on 

other grounds. 

That may be evident when we start doing the monitoring of that, 

and then that would go into the compliance side of it, and it would 

be on any one of those grounds. 

Ms. Ratliff, can you add to that? 

Ms. RATLIFF. I would just add that that Temple report is based 

on data that is 5, 6, 7 years old. 

Ms. SANCHEZ. Do you have any more current data? 

Ms. RATLIFF. Westat is doing an independent evaluation with updated information. We have an interim report that came out in 

April and the final report is due out this summer, that we would 

be happy to make available. 

Ms. SANCHEZ. Okay. I would appreciate that. 

Can you please tell me what actions are currently taken against 

employers that misuse that system? The compliance side of it. 

Mr. SCHARFEN. I would think that we would refer that to the enforcement side of the department. We would refer it to ICE and 

give it to them for any appropriate enforcement. 

Ms. SANCHEZ. To your knowledge, do you know if there have 

been instances of misuse where action has been taken against employers or if any employers have been penalized for misusing the 

system? 

Mr. SCHARFEN. There have been instances where the use of the 

EEVS has been cut off, but as to other types of enforcement, I will 

have to look into that and get back to you, ma’am. 

Ms. SANCHEZ. Would you have any recommendations for ensuring that employers use the system properly and ways in which we 

could penalize, what would be effective methods of penalizing those 

who violate the terms of——

Mr. SCHARFEN. I think getting back to the original point that I 

had made, ma’am, is that we first have to monitor it and then go 

from there onto the compliance side of it, and that the first step 

is to identify in a more systematic way those instances of violations 

and then treat those appropriately, both programmatically and in 

individual instances, and I think if we did pick up individual instances, we would refer those to ICE for enforcement. 

Ms. SANCHEZ. Thank you. 

I yield back. 

Ms. LOFGREN. The gentlelady’s time has expired. 

I will note that the record is held open for 5 legislative days so 

that written questions can be directed to the witnesses. And all 

Members are asked to pose those questions within the 5 days, and 

we ask that answers be made as promptly as possible. 

We do thank you, Mr. Scharfen, for your testimony today and for 

your further information and answers to follow-up questions. And 

35

we do look forward to the April interim report, which we do not 

have, and we look forward to getting that. 

Mr. SCHARFEN. Yes, ma’am. Thank you for the opportunity to 

testify. 

Ms. LOFGREN. Thank you so much. 

I am now going to ask the second panel to come forward to the 

table. While we are getting organized, I will start the introductions. 

First, we are pleased to introduce John Shandley, the Senior Vice 

President of Human Resources at Swift & Company. Before his 

work with Swift & Company, Mr. Shandley directed several units 

within the Labor Relations Division at Nestle USA and store operations at Ralph’s Grocery Company. 

A former aide to the commanding Army general in Okinawa, 

Japan, and the assistant commanding Army general in Fort Hood, 

Texas, Mr. Shandley holds a B.S. degree from the University of 

Southern California and graduated from the Food Industry Management Program, also at the University of Southern California. 

We are also pleased to have Stephen Yale-Loehr join us from the 

law firm of Miller Mayer. Mr. Yale-Loehr has practiced immigration law for more than 20 years and has co-authored the leading 

multi-volume treaties on U.S. immigration law, titled, Immigration 

Law and Procedures.

In addition to his practice, Mr. Yale-Loehr teaches Immigration 

and Asylum Law at Cornell University’s Law School as an adjunct 

professor. He holds his bachelor and law degrees from Cornell. 

Finally, I would like to welcome Dr. Marc Rosenblum, a professor 

with the Political Science Department at the University of New Orleans. In addition to his scholarship on immigration policy and 

U.S.-Latin American relations, Professor Rosenblum has served as 

an international affairs fellow at the Council on Foreign Relations 

and a visiting fellow at the Migration Policy Institute. 

Professor Rosenblum earned his B.A. from Columbia University 

and his Ph.D. from the University of California in San Diego. 

Each of you have provided written statements, which I have read 

and I am sure the other Members have as well. They were very 

helpful. The entire statements will be made part of the official 

record. 

I would ask that you summarize your testimony in 5 minutes, 

and to help you stay within that timeframe we have a very helpful 

little light here. And when you have about 1 minute remaining, the 

yellow light will go on. And when it turns to red, it means that 

your time is up. 

So, again, thank you for being here. 

And let us start with Mr. Shandley. 

TESTIMONY OF JOHN SHANDLEY, SENIOR VICE PRESIDENT 

HUMAN RESOURCES, SWIFT & COMPANY 

Mr. SHANDLEY. Chairwoman Lofgren, Ranking Member King, 

Members of the Subcommittee, good morning. My name is Jack 

Shandley, Senior Vice President of Human Resources for Swift & 

Company. Thank you for inviting me. 

Today I will cover background on Swift, our experiences with employment verification, worksite enforcement systems, and recommendations. 

36

Swift is the third-largest processor of fresh beef and pork in the 

United States. Annual sales exceed $9 billion. All but one of our 

seven domestic plants have union representation. We employ 

15,000 people domestically, pay production employees more than 

twice the Federal minimum wage, offer retirement and comprehensive health care benefits, and possess industry-leading employee 

safety records. 

Swift’s hiring process goes above and beyond what is required by 

Federal and State law in terms of identity determination and work 

authorization. 

First, every new Swift employee is required to complete an I-9 

form, provide government-issued photo identification, usually a 

State identification card or driver’s license. Employers must accept 

identification documents that on their face seem valid and not 

specify which of the 29 authorized forms of identification the applicant must supply and are prohibited from asking for additional 

documents. 

In fact, Swift was sued for $2.5 million by the Department of 

Justice in 2001 for allegedly going too far in trying to determine 

applicant eligibility. We settled the case for less than $200,000 

with no admission of wrongdoing. 

Second, Swift has voluntarily participated in the Federal Basic 

Pilot program since 1997. Every production employee hired since 

has received a Social Security number and name validation 

through this government system. 

Third, last year, with the assistance of third-party immigration 

compliance consultants, we implemented a hiring process improvement program called, informally, Connect the Dots. It enhanced 

our interviewing and information evaluation procedures to allow us 

to better detect identity fraud in a nondiscriminatory way. 

For example, we now automatically flag new applicants who were 

either previously employed with or denied employment at another 

Swift location. 

Simply put, a company cannot legally and practically do more 

than we have done to ensure the legal workforce under the current 

regulations and tools available from the government. Despite these 

procedures, the government raided six Swift production facilities on 

December 12, 2006, detaining 1,282 employees. This event cost 

Swift more than $30 million and disrupted communities and livestock producers. 

The raids came after numerous attempts over many months by 

senior management, outside counsel and others to understand 

ICE’s concern. We sought a collaborative way of apprehending all 

potential illegal workers and criminals in order to minimize disruption to the company, the communities and the livestock producers. 

All efforts to generate a collaborative solution were repeatedly 

rebuffed by ICE under the guise of an ongoing criminal investigation. 

After 14 months of investigation, the government has not accused or charged Swift or any current or former member of management with any wrongdoing in connection with this immigration 

worker investigation and we have no reason to believe they shall 

do so in the future. 

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DHS continues to unfairly insinuate that Swift is somehow 

guilty. We believe it is past time for it to publicly admit to the company that it is not guilty of violating immigration laws. 

These ICE raids dramatically highlighted flaws in the Basic Pilot 

program. Criminals today are able to substitute counterfeit identification documents with genuine ones obtained under fraudulent 

terms. For example, State identification cards obtained with valid 

copies of birth certificates or Social Security cards. Furthermore, 

Basic Pilot does not detect duplicate active records in its database. 

The same Social Security number could be used at multiple employers across the country. 

Today we are confronted with a prolific and sophisticated document fraud industry now capable of providing unauthorized workers with documents and identities that challenge our ability to detect fraud and seem to defeat the Basic Pilot program relied upon 

by employers. Let me reiterate: Basic Pilot is the only government 

tool available to employers and it is fatally flawed. 

Employers like Swift, who follow the law, are not the problem 

within the immigration reform debate. The immigration system is 

the problem. We need a legislative solution to the issue of employment verification, a more broadly comprehensive immigration format that includes a revamped Basic Pilot program; standardized 

State identification requirements; tamper-proof or biometric identity documents; tough penalties for employers who break the law 

and protection for those who don’t; a refocused initiative for ICE 

that includes a collaboration with employers who play by the rules; 

a guest worker program; and earned status adjustment for a large 

portion of the estimated 12 million individuals illegally here today, 

whether as citizens or permanent alien residents. 

Thank you for having me. 

[The prepared statement of Mr. Shandley follows:]

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PREPARED STATEMENT OF JOHN W. SHANDLEY


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Ms. LOFGREN. Thank you very much. 

Mr. Yale-Loehr? 

TESTIMONY OF STEPHEN YALE-LOEHR, MILLER MAYER, LLP, 

ADJUNCT PROFESSOR, CORNELL LAW SCHOOL 

Mr. YALE-LOEHR. Thank you. The Subcommittee asked me to 

give you a brief history about employer sanctions. I also want to 

talk with you about some systemic problems with the current employer sanctions regime and conclude with some recommendations. 

First, a brief history. Congress enacted employer sanctions in 

1986. Until then, it was not illegal for an employer to hire someone 

who did not have proper work authorization. It was illegal for the 

worker to be here without proper work authorization, but it was 

not illegal for an employer to hire them. 

That changed in 1986 when Congress enacted employer sanctions 

as part of IRCA. IRCA did four things relating to this hearing 

today. 

First, it prohibits employers from knowingly hiring undocumented workers. 

Second, it requires all employers to verify identity and work eligibility of all job applicants, U.S. citizens or foreign nationals. 

Third, IRCA created anti-discrimination protections. 

And, fourth, although it wasn’t in the statute, one flaw of IRCA 

was that it failed to provide for a temporary worker program to 

allow future flows of temporary workers to enter the United States 

legally. 

Congress was concerned that the enactment of employer sanctions might increase discrimination against foreign-looking and foreign-sounding job applicants, so it asked the Government Accountability Office to do a series of three reports. 

In 1990, the final version of that report came out and the GAO 

found that IRCA’s employer sanctions provisions created ‘‘a serious 

pattern of discrimination.’’ The GAO found that because of employer sanctions, discrimination against foreign-looking and foreign-sounding job applicants increased by 19 percent. 

Despite that finding by the GAO, Congress did not do much to 

repeat or to modify employer sanctions. Employer sanctions effectively has created a paradox. We have a high degree of paperwork 

compliance, but a low degree of actually stopping undocumented 

workers from entering the United States or working here. 

Employers complain about the paperwork burdens and they do 

not want to be junior immigration inspectors. Fraud and discrimination have increased with employer sanctions over the last 20 

years. 

What to do about it? Well, in 1994, Representative Barbara Jordan headed a commission that looked into this issue and they came 

up with a proposal to take verification away from employers and 

put it on the government. They recommended a computerized registry of looking at Social Security and immigration databases. That 

was the genesis of the Basic Pilot program that Congress enacted 

in 1996. 

I am not going to talk about the Basic Pilot program because the 

other panelists will talk about that in more depth. What I next 

43

want to focus on are some of the systemic problems in our current 

employer sanctions regime. 

First, the political compromise that created employer sanctions 

floundered against the economic reality of the fact that we did not 

have a legal way to bring in needed temporary workers to the 

United States legally. Therefore, they had to enter illegally and use 

fake documents many times. 

Second, employer sanctions enforcement has been inconsistent. It 

was fairly good right after enactment of IRCA in 1986, but has 

then declined. For example, the Immigration and Naturalization 

Service audited almost 10,000 employers back in 1990, but only 

2,200 in fiscal year 2003, a decline of 77 percent. Similarly, back 

in 1992 the Immigration Service issued over 1,460 notices of intent 

to fine against employers who violated employer sanctions. By 

2004, that had dropped to three, a decline of 98 percent. 

So what do we do? Well, I have several recommendations in my 

written testimony. I call them the 3 E’s: enforcement, evaluation, 

and entry. 

First, on enforcement, we need consistent, vigorous and adequately funded enforcement that is funded by the Congress over 

the long haul, not just for a few years. Moreover, we need to target 

employers who intentionally violate whatever employer sanctions 

regime is enacted. 

Second, evaluation. We need to properly, quickly and accurately 

evaluate a person’s documents so that we know those documents 

are not fraudulent and that they do relate to the person presenting 

those documents. We also need to continually evaluate any new 

system to make sure that it is working properly with very few errors and is not causing any increase in discrimination or privacy 

problems. 

Third, entry. We need to have a temporary worker program as 

part of comprehensive immigration reform that is large enough to 

accommodate our labor shortages. Those people then will be able 

to enter legally and with proper documents. That will reduce incentives to enter illegally or use false documents. 

These three elements are the three legs of the stool that can reform our employer sanctions regime. All three legs need to be adequately funded and enforced over time or they may fall apart. 

In sum, employer sanctions is a very important component of 

comprehensive immigration reform, perhaps the most important 

component because it affects all Americans, not just immigrants. 

For that reason, Congress must handle this issue carefully and 

thoughtfully. 

Thank you. 

[The prepared statement of Mr. Yale-Loehr follows:]

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PREPARED STATEMENT OF STEPHEN YALE-LOEHR


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Ms. LOFGREN. Thank you. 

Now, finally, Dr. Rosenblum. 

TESTIMONY OF MARC ROSENBLUM, Ph.D., DEPARTMENT OF 

POLITICAL SCIENCE, UNIVERSITY OF NEW ORLEANS 

Mr. ROSENBLUM. Thank you very much, Madam Chairwoman 

and Members of the Committee. It is a great honor to be here with 

you today. I appreciate the opportunity to talk to you about the 

challenges of employment verification and worksite enforcement. 

The failure of existing immigration law to prevent undocumented 

employment has been well documented and establishing more effective employment-based immigration controls has rightly been identified by advocates of comprehensive immigration reform as a top 

priority. 

In short, the current system fails to provide employers the tools 

they need to identify undocumented employees. The I-9 documentbased verification system is vulnerable to document fraud, the use 

of fake IDs, and both the I-9 system and the Basic Pilot Electronic 

Eligibility Verification System are vulnerable to identity fraud with 

the fraudulent use of borrowed or stolen identity documents pertaining to another person. 

In addition, enforcement of employer sanctions has never been a 

priority for INS or DHS, as we have just discussed, and penalties 

for noncompliance are low. These verification problems mean that 

even conscientious employers may unknowingly hire undocumented 

immigrants and weak enforcement provisions mean that unscrupulous employers may knowingly do so because the expected penalty 

is simply not a deterrent. 

So we need to address both the conscientious employers and the 

unscrupulous employers, and they require sort of separate solutions. 

These obstacles to effective enforcement are well known, and I 

will therefore focus on three additional problems which have received less attention. 

First, even as the current system fails to prevent undocumented 

employment, it also denies authorization to some U.S. citizens and 

other legal workers. False negatives occur during the I-9 process 

because the system is complex and many employers recognize their 

inability to accurately determine a job applicant’s status. 

So some employers err on the side of caution by refusing to hire 

people who seem like they might be unauthorized to work, a phenomenon known as defensive hiring. 

The Basic Pilot was conceptualized in part to address this problem by eliminating the need for subjective employer judgment, but 

Basic Pilot database errors are surprisingly widespread—we have 

talked a little bit about this. They exist on a scale that would affect 

hundreds of thousands and perhaps millions of workers in a universal system. 

These errors demand our attention, because the logic of electronic verification runs counter to the judicial principle of presumed innocence. Under Basic Pilot, all job applicants are presumed unauthorized until proven otherwise, so the burden is on 

the U.S. citizen or other legal worker to correct database errors, 

often after considerable time and expense, or lose their job. 

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A second problem is that these false negatives disproportionately 

affect persons born outside of the United States so that our overall 

employment verification system becomes a de facto source of employment discrimination. Legal workers who look or sound foreign 

born are more likely to fail an employer’s eyeball test or to be subject to additional scrutiny in the context of ambiguous verification 

procedures. 

Faced with these doubts, some employers refuse to hire such job 

applicants as a function of their appearance and other employers 

hire questionable job applicants but pass along the risk of doing so 

in the form of lower wages. 

A well-functioning electronic eligibility verification system could 

ameliorate this problem, but the Basic Pilot exacerbates the problem because database errors in Basic Pilot are far more likely to 

affect naturalized citizens and legal immigrants than native-born 

citizens. 

A third unintended consequence of the current system is increased exploitation of undocumented workers by unscrupulous employers. Ambiguity in the verification process allows employers to 

turn a blind eye to fraudulent documents at the point of hire and 

then discover an employee’s undocumented status later, perhaps in 

response to an employee’s demand for fair working conditions or 

their efforts to join a labor union. 

Because current rules place greater emphasis on migration control than they do on holding employers accountable or enforcing 

U.S. labor law, some employers actively seek out undocumented 

employees knowing it puts them in a position to deport their labor 

problem later. 

Once again, the harmful effect on wages and standards are felt 

throughout the U.S. economy, not just by undocumented workers. 

As Congress considers comprehensive immigration reform, I believe you confront a fundamental tension in this area. Most steps 

to limit undocumented employment, strengthening verification and 

enforcement procedures, tend to increase the risk of false negatives, employment discrimination and worker exploitation. 

Setting aside the politics, it is technically difficult to design a 

system which screens out those who should be screened out without causing collateral damage to legal workers and conscientious 

employers. 

This tension may best be resolved by providing employers and 

employees with clear and effective verification procedures so that 

straightforward compliance prevents the overwhelming majority of 

undocumented employment. 

Once such a verification system exists, enforcement efforts and 

penalty structures must be substantially increased to create a real 

deterrent to undocumented employment with a special focus on 

going after ‘‘bad apple’’ employers. 

Most importantly, we now have two decades of unambiguous evidence about the harmful, unintended labor market consequences of 

worksite enforcement. Yet even as Congress has been made aware 

of these adverse effects, flawed enforcement practices have not only 

been committed to continue, but they have been expanded in direct 

opposition to the conclusions of key reports on this subject. 

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So as Congress once again prepares to strengthen worksite enforcement, as it should, I urge you to learn from these studies and, 

simultaneously, to take steps to prevent the predictable increase in 

false negatives, discrimination and exploitation, which are sure to 

result. 

Thank you again for the opportunity, and I would be happy to 

elaborate. 

[The prepared statement of Mr. Rosenblum follows:]

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PREPARED STATEMENT OF MARC R. ROSENBLUM


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Ms. LOFGREN. Thank you very much. Very helpful from all of 

you. 

I will begin the questions. 

Mr. Shandley, thank you for coming in voluntarily to give us 

your perspective. You have suggested that ICE’s behavior with respect to action against Swift, have been problematic. I am wondering, I mean, in your written testimony you say that Swift lost 

more than $30 million as a consequences of this raid. 

Could you talk about what steps ICE took or didn’t take that 

they should have taken, in your judgment, to deal with the situation you found and the financial ramifications for your business? 

Mr. SHANDLEY. I would address from this way, Madam: It is 

what they didn’t take. 

We repeatedly, through various avenues, including attempts at 

direct contact, to work with them in a collaborative format. And ultimately, you know, if they are looking for criminals, we volunteered to help them. We said we would move heaven and earth to 

get to those criminals and do everything we can. 

At the end of the day, they raided our facilities and basically detained thousands of employees to get at the 1,282, of which only 

a few hundred actually had criminal issues associated, and that 

was well documented in the press. 

So at the end of the day, I think it could have been a far more 

collaborative effort in its process without having to shut down our 

operations in what we would consider to be—well, it was an unprecedented manner. 

Ms. LOFGREN. I am wondering, Mr. Yale-Loehr, you talked a little bit about the need to phase in a system over time, and as we 

think about a biometric system, too often we don’t think about the 

database that is needed to support that system. 

But we really actually have to make this work for every employee in America, which is a lot of people. And I think about 

standing in the line—which I don’t much care for. I am pretty sure 

that our American citizen constituents are not going to be very 

happy about that. Everybody thinks this will apply to somebody 

else. 

What do you envision in terms of phase-in to make this actually 

work in a way that will be seamless for the United States citizens 

who are impacted? 

Mr. YALE-LOEHR. Because it is such a large problem, we do need 

to phase it in over time. We probably need to have checkpoints at 

each step of the process so that we know that there is an accuracy 

rate that we can live with before we move on to the next step of 

the process. 

For that reason, it may take even a decade before we get to a 

system that we all can agree on that meets certain fundamental requirements of speed, accuracy, privacy considerations, and non-discrimination. I don’t have a specific timetable in mind. 

Hopefully, if this could be done well, it would not necessarily be 

an actual line but it would be more of a virtual line in that you 

present your documents to the employer and they can find out very 

quickly by dialing or using the Internet the answer that they need. 

79

But there are going to be some costs to U.S. citizens and the 

question is what is the price of that versus getting control over 

knowing who our workers are. 

Ms. LOFGREN. Dr. Rosenblum, you are an expert on these technology issues and I appreciate very much your willingness to be 

here. 

Some people say if every employer had the ability to just do a 

card swipe like we do at the checkout stand, that that would solve 

our problems. It seems to me that although that kind of a system 

might eliminate some errors, that is really not going to solve the 

whole thing. 

Can you talk about the biometric needs as opposed to where we 

are on databases and what needs to be done? 

Mr. ROSENBLUM. Thank you. 

Well, you are certainly correct. Simply adding a card swipe to the 

current system would not solve all our problems. And the main reason is that the card swipe doesn’t tell you anything about who is 

doing the card swiping. So we still have the same identity fraud 

problem that we have now. 

Ultimately, the only way that we are going to—there are two 

ways that we can conceivably address identity fraud, and one is 

through some kind of a biometric database. 

And when we think about a biometric database, one option—

what that requires is, ultimately, for every U.S. citizen to submit 

biometric data, a digital photograph or fingerprint, to DHS, and so 

there would be an enrollment period where everybody would submit that data. 

One option then is that we would have something like the photo 

screening tool that Ms. Ratliff was describing earlier, where the 

employer would see a picture of what that person is supposed to 

look like and then could make a judgment about whether that person was in fact in front of them. 

So I would submit that this would essentially address the problem for conscientious employers. Most conscientious employers 

could make a judgment. I mean, you would still have some false 

negatives as a result and some discriminatory outcomes. 

The only way that you would really decisively confirm the identity fraud issue is to take biometric data at the point of hire. So 

to have either fingerprint scanning or some kind of digital image 

scanning when employees get their jobs, and this is a massive infrastructure investment and a massive shift in how we think about 

relations between the States and individuals and their employers. 

The one thing that we should bear in mind when we think about 

the cost of that is that ultimately we have to choose between frontloading the cost by building some kind of a biometric database and 

having problems like what we have seen in the Swift case, backloading the cost. We are either going to make a lot of mistakes in 

enforcement and have employers who comply but nonetheless hire 

undocumented immigrants, or we are going to have to make this 

investment in some sort of biometric database. 

Ms. LOFGREN. My time is expired, but I will just note that com- pared to the $30 million Swift company lost on this raid, they probably wouldn’t have minded to spend a small amount to enroll their 

employees. 

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But I would yield now to Mr. King for the 5 minutes. 

Mr. KING. Thank you, Mr. Rosenblum. 

And thank you, Madam Chair. 

I thank all the witnesses. 

A point that I didn’t hear emphasized, Mr. Rosenblum, is that 

99.8 percent of U.S. citizens are approved in the first attempt to 

pass Basic Pilot. And would you agree that U.S. citizens should be 

our first priority if we are going to clean up this database and work 

our way through this process until we get it all right? 

Mr. ROSENBLUM. As long as there are these—the problem with—

certainly I think that, you know, your first concern is to your constituents, U.S. citizens. As long as the system has these large, systematic errors, then we are going to end up with mistakes and we 

are going to have problems like the Swift case. 

Mr. KING. Are there distinctions between the rights of U.S. citizens and the rights of, I will say, visa holders and legal workers 

here in the United States? 

Mr. ROSENBLUM. Certainly, there are. 

Mr. KING. And you would acknowledge that we would have a priority to set here in this Congress, would you not? Do you just prefer not to make that philosophically yourself? 

Mr. ROSENBLUM. I don’t have a problem with Members of Congress making that distinction, and I recognize that there are differences in the rights of citizens versus non-citizens. 

My concern is that until we have a verification system that is accurate and reliable and employers are making judgments, as you 

commented before, then we are going to end up with a lot of mistakes and we are going to end up with employers continuing to 

comply with the law and still hiring undocumented immigrants. 

Mr. KING. Okay. Thank you. 

On Page 14 of your testimony, you state that a minority of the 

employers will still attempt to game the system. And you also address that we need to address both the contentious and the unscrupulous employers. 

Do you have any reference that I have missed in unscrupulous 

employees? And what percentage of the employees would you suspect are unscrupulous? 

Mr. ROSENBLUM. Well, all of the undocumented ones are attempting to break our law. I would agree with that. 

Mr. KING. Thank you. A well-stated point, and I appreciate that. 

Turning to Mr. Yale-Loehr, how would you suggest Congress determine the number and type of needed workers? Would you put 

a cap on that? Listening to some of your testimony, I didn’t get 

that sense that you would. 

Mr. YALE-LOEHR. I think that is a large issue, and I think it 

needs to be considered carefully. 

There have been various proposals about how to handle any temporary worker program. The Migration Policy Institute, for example, convened a task force of experts last year and came out with 

some very good recommendations on how to deal with the temporary worker program, generally. 

I think there has to be collaboration between the government 

and employers to be able to figure out what the true labor shortages are, and I think some kind of advisory panel to say that we 

81

have a labor shortage in this industry this year, therefore we need 

workers, would be one way to deal with it. 

So I don’t know that we need to have a fixed cap. I think that 

we have seen in other areas of immigration law, like the H-1B 

area, that fixed caps do not work. On the other hand, I am not for 

open borders where anybody can just cross the borders. 

Mr. KING. I just happened to notice that in your written testimony it says that we need a temporary worker program large 

enough to allow most foreign workers to enter the United States 

legally. And in your verbal testimony, your statement was large 

enough to accommodate our labor shortages. 

What criteria would you use? Would you let the market demand 

determine, as long as there was a willing employer and a willing 

employee? Doesn’t that connote that we are then a Nation that is 

an economic Nation, a Nation of opportunity, a giant ATM, rather 

than a Nation of people that has a soul and a heart and a culture 

and interests beyond those of an employer that is willing to hire 

an employee regardless of the price of that wage? 

Mr. YALE-LOEHR. Well, I think President Bush has said that he 

wants to match willing workers with willing employers, and I 

think——

Mr. KING. You concur? 

Mr. YALE-LOEHR [continuing]. That as long as we do that carefully, I think that is an appropriate way for Congress to act. 

Mr. KING. You would make the economic decision only, then. You 

wouldn’t consider the cultural implications that I have mentioned. 

Mr. YALE-LOEHR. I think those are one factor, but I think immigration generally is healthy in the United States. So I think that 

has helped our culture over time. 

Mr. KING. How would you measure that? 

Mr. YALE-LOEHR. I think that is very hard to measure. I don’t 

have a way to put that into a concrete system. 

Mr. KING. Thank you. 

Mr. Shandley, I want to say first off, as the Member of Congress 

who represents the number-one pork production district in America, we appreciate Swift & Company. You provide a fantastic market for our producers there. And whatever we discuss with regard 

to immigration has no implication upon the character or the efficiency or the people whatsoever. And I want to thank you for providing that market. That has been an interest of mine as well. 

I wanted to ask you—and you have gone through quite a lot 

since last December, and I have watched it closely since Worthington, Minnesota, is to my north and Marshalltown, Iowa, is 

just to my east. We pay attention. Also, Grand Island, Nebraska, 

to my west. 

Have your competitors undergone the same scrutiny that Swift 

& Company has? 

Mr. SHANDLEY. To our knowledge, no. 

Mr. KING. Do you consider that to be a disadvantage now to you 

competitively? Or there is another way to phrase that around the 

other way. Do your competitors have an advantage that you don’t 

have because they have not undergone the same scrutiny? 

Mr. SHANDLEY. We believe that is the case, both at the customer 

level as well as at the employment level. 

82

Mr. KING. Have you made the case to ICE or to Justice that you 

have been now put with a spotlight on you in the Nation and it 

puts you at a competitive disadvantage? 

Mr. SHANDLEY. We have made that case to anybody that will listen, including ICE. 

Mr. KING. Then I assume you welcome that question, as well, 

and appreciate that. 

In the past, is there a history of INS or ICE raids with Swift that 

have gone on in previous year? How many times has this happened? 

Mr. SHANDLEY. You know, the industry has gone through raids. 

The most recent part of that was in the late 1990’s. And Swift & 

Company in Nebraska had facilities in Nebraska when those raids 

occurred. 

Mr. KING. Thank you, Mr. Shandley. 

Appreciate all your testimony. 

Thank you, Madam Chair. I yield back. 

Ms. LOFGREN. Thank you very much. 

I now recognize the gentleman from California, Mr. Berman, for 

his questions. 

Mr. BERMAN. My first one really isn’t so much about employers, 

but I do hope to be able to get into that. It is this willing employer/

willing worker. The fact is, scarcity or shortage is a way by which 

workers can increase what they get paid or get better conditions. 

That is the marketplace. 

In a universe where you decide the number of guest workers by 

a willing employer/willing worker standard, for all intents and purposes, you remove that friction or that scarcity because there is 

somebody in Bangladesh who will do it. 

Now, you have minimum wage laws, but now you are essentially 

condemning lots of workers to being at the legal bottom and I just 

want to make that observation, without getting into——

Mr. YALE-LOEHR. If I could respond to that, if you don’t mind. 

I certainly believe we have to have full enforcement of all of our 

labor protections and I agree entirely with Dr. Rosenblum’s comments in his written testimony, that we need to, for example, repeat Hoffman Plastics. We need to have a lot more vigorous labor 

protection so that immigrant workers, as well as U.S. workers, get 

the full protection of our labor laws. 

Mr. BERMAN. I agree with that very strongly, but that doesn’t 

really deal with the underlying point, that the minimum labor protections, even if strongly enforced, are not necessarily what—at 

some point, that farm worker who has been there 10 years has 

some expectation of getting more than the minimum wage in a 

willing employer/wiling worker universe, somebody is quite willing 

to take his or he job for the minimum wage. 

But anyway, there is a—even in my own mind, there is a tension 

here. I do think we need a legal avenue for people to come in and 

perform jobs. How expansive it is, to what extent it should be 

capped, and what the tests for industries or jobs that are eligible 

for those folks are is a tougher question. 

On the verification, I guess, Dr. Rosenblum, since the Chair introduced you as an expert on the technologies, you essentially described the most fulsome kind of system and the most effective sysVerDate 0ct 09 2002 14:17 Jul 19, 2007 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\042407\34925.000 HJUD1 PsN: DOUGA
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tem, the system that will avoid the Swift problem, most likely, as 

a fairly intrusive system with a great deal of forward-funding for 

infrastructure. 

The government is going to essentially—or employers are going 

to underwrite equipment and communication systems that give 

quick and accurate answers very quickly. I don’t think this thing 

works without that. I think otherwise we have some sort of repeat 

of 1986 again. 

What can we do to take that element, which you made a brief 

reference to—changing the whole nature of questions of privacy 

and individual liberty and misuse of information. Can we both 

make the investment and decide to implement as effectively and 

quickly as possible that kind of system, and at the same time safeguard and limit the change in the nature of those relationships 

such that concerns about misuse of information can be alleviated 

to the greatest extent possible? 

Mr. ROSENBLUM. I think that is exactly the right question, and 

the record so far, including the Federal Government’s record in protecting private data, doesn’t give us a lot of reasons to be confident 

that we can——

Mr. BERMAN. Well, let me interject. 

One area that I was particularly focused on, in the 1986 law, one 

of the arguments against the legalization program was people will 

come forward to get legalized, if they didn’t qualify they will be 

turned over to enforcement and they will be immediately deported. 

I am unaware of a single—we put in prohibitions on that kind of 

sharing—and I am unaware of one instance where that actually 

happened. 

Why can’t you create firewalls and limitations on the use of information that by and large will be effectively maintained and enforced and thereby protect——

Mr. ROSENBLUM. I think the reason it is challenging to protect 

that data is that, as we invest the data with a lot of importance 

in the context of this system, we create a market for it. So there 

will be people who, you know, will seek to obtain it, and so the 

more valuable it is, the more vulnerable it is. 

I think that there are ways to phase in this system, even before 

we assemble the complete biometric database that is such a threat 

in the ways that you just observed, by relying on sort of data-mining strategies to look for probable cases of noncompliance. 

In doing that, we will end up targeting employers who intend to 

comply but aren’t able to do so successfully. But to my knowledge 

and in my estimation, there is no way to come up with a truly foolproof verification system without building this database and building that database is inherently a threat to our privacy and inherently restructures our relationship with the State and with employers. 

So I think that Congress should certainly invest a lot of time and 

energy in doing what you can to safeguard that data and to try to 

limit it to the purposes of employment verification and both the 

Strive Act and last year’s Senate S.2611 have some very sensible 

provisions that way, but I think that we should go into it with our 

eyes open and recognize that those protections are going to be imperfect. 

84

Ms. LOFGREN. The gentleman’s time is expired. 

The gentlelady from California, Ms. Sanchez, is recognized. 

Ms. SANCHEZ. Thank you. 

Mr. Yale-Loehr, you mentioned that Congress didn’t terminate 

employer sanctions following a 1990 GAO report that showed sanctions have created a serious pattern of discrimination. You also 

note that over time it has become clear that employer sanctions 

aren’t working effectively and I think in your written testimony 

you said that in the end, fraud and discrimination took over the 

system. 

Can you explain a little bit how fraud and discrimination took 

over that system? 

Mr. YALE-LOEHR. Well, I think, as I mentioned in my testimony, 

as it became clear that the immigration agency was not effectively 

enforcing employer sanctions, employers decided they didn’t really 

have to worry about it, and they were more willing to take fake 

documents. 

Similarly, particularly back in the 1980’s, it was easy to obtain 

fake documents. We didn’t have the same kind of counterfeit resistant documents that we do today. So it was easy for fraudulent documents to flood the market. So that is why employer sanctions 

gradually came to be seen as a joke. 

Ms. SANCHEZ. Do you know what percentage of employers ever 

got investigated or fined? 

Mr. YALE-LOEHR. Yes. There are some statistics in my testimony 

as well, and Dr. Rosenblum’s testimony. I don’t recall what the 

overall percentage of U.S. employers is, however. 

Ms. SANCHEZ. So you don’t think employer sanctions was an effective deterrent in that regard? 

Mr. YALE-LOEHR. In part because we didn’t have consistent enforcement. 

In 1999, Immigration and Naturalization Service made worksite 

enforcement the lowest of its five investigatory priorities. So with 

that kind of background, it is hard for any system to be effective. 

Ms. SANCHEZ. We hear terms all the time, the cost of doing business, the businesses take the risk because what they save in terms 

of wages that they have to pay far exceeds their risk for enforcement of being caught employing people that they shouldn’t be employing and paying whatever minimal fines at the end of the day 

end up being assessed. 

What recommendations do you have for protecting against discriminatory hiring practices? 

Mr. YALE-LOEHR. I think we have some decent provisions in current law. We also have expansions of that proposed in the Strive 

Act that I think are worth considering. 

I also think we need to give more money to the Office of Special 

Counsel and the Department of Justice so they can go out and enforce those laws. 

Ms. SANCHEZ. And any suggestions on how we could protect 

against the fraudulent aspects of verification? 

Mr. YALE-LOEHR. I think Dr. Rosenblum has expressed the fact 

that it is hard to make sure that the person who presents the documents really is the person who belongs to those documents, and 

that is a large challenge that we all have to face. 

85

Ms. SANCHEZ. Okay. 

Mr. Rosenblum, in your written testimony, you discuss at length 

the problem of false negatives and how they can adversely effect 

even United States citizens. 

In your opinion, when the Basic Pilot program or any new system is built, who should compensate work eligible citizens who are 

wrongly denied the right to work by DHS data errors or by bureaucratic errors? 

Mr. ROSENBLUM. Well, certainly, if the errors are on the part of 

DHS and the government database, then I would see it as the government’s responsibility to compensate the workers for those lost 

wages, both the Strive Act and last year’s Senate bill had provisions for that. 

Ms. SANCHEZ. Okay, great. Thank you. 

I have no further questions. I yield back my time. 

Ms. LOFGREN. Thank you. 

The gentlelady yields back. 

We have been joined by the Chairman of the full Committee, Mr. 

Conyers, who advises me he wishes to put his opening statement 

in the record but does have questions. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

As we heard during the course of last week’s two hearings, prior immigration reform efforts—especially the 1996 reforms—sought to substantially toughen enforcement of our immigration laws, but their implementation has been virtually nonexistent. Nowhere is this better illustrated than our broken worksite enforcement 

system. 

After years of utter neglect, the Administration has just recently stepped up its 

worksite enforcement efforts. This increased flurry of activity comes at about the 

same time that the Administration is calling for long-term immigration solutions 

and the normalization of undocumented workers. 

These recent large-scale raids at various businesses across the Nation, however, 

reveal massive problems with our current worksite enforcement system. 

First, worksite enforcement should not be a used as a tool of retaliation—whether 

in response to formal organizing activities or as a way to punish individual employees who demand their rights as workers. Such retaliatory actions are an abuse of 

the legal process. Such misuse of our limited enforcement resources is unfair not 

only to the workers and their representatives, but to the federal immigration agents 

who must conduct these enforcement efforts. Worksite enforcement should not be 

used to profit unscrupulous employers. 

Second, employers should be able to rely—in good faith—on an employment 

verification system, such as under the Basic Pilot program. Such voluntary participation should be rewarded, not punished. We must ensure that businesses that participate in a verification process do not instead end up as targets of that very system 

as a result of their participation. 

Third, many of these worksite enforcement actions have caused humanitarian crises in their wake. As we know, many undocumented workers belong to blended families, often comprised of legitimate immigrants and American citizens. In the course 

of several recent worksite enforcement raids, however, many of these families were 

torn apart. Children were abruptly separated from their parents who had no means 

to communicate with their children or to make alternative care arrangements. 

These children were unexpectedly stranded or left to fend for themselves while their 

parents were detained. 

If we are to achieve a controlled, orderly, and fair immigration system, we must 

look at the flaws in the current system. Yes, enforcement is important. But so are 

people and the communities in which they live. The enforcement regime can be 

fixed. It must be fixed. 

We must keep that in mind as we move forward on comprehensive immigration 

reform.

86

Ms. LOFGREN. Welcome, Mr. Conyers. 

Mr. CONYERS. Thank you, Madam Chairman and my dear friend. 

We are happy that this is the third hearing trying to examine 

how we got to where we are from the 1996 reforms. 

But we had enforcement, tough enforcement, but there was no 

implementation. Now we are looking at broken worksite enforcement systems. 

And, Mr. Shandley, I just want to try to capsulize your testimony 

about the company, the union, that represents your workers and 

how you have addressed the needs of this vulnerable population. 

What do you suggest employers do to avoid the fix that you ended 

up in, trying to cooperate? 

Mr. SHANDLEY. Well, I don’t know if an employer can, that has 

the power—especially an employer like Swift, who has complied 

with the laws of the land. And ultimately we do believe that it is 

immigration reform. 

We focus on the documents, not on the individuals, when we 

hire, and the key is that the quality of the documents and do they 

relatively or reasonably relate to the individual in front of us. And 

the testimony that is at hand would go a long way toward helping 

employers continue to abide by the laws of the land. 

Mr. CONYERS. I am glad to see that you don’t have a chip on your 

shoulder and you don’t bring a bad attitude to this hearing. We 

were thinking that you would been put in a pretty awkward place 

through the selective enforcement of these worksite requirements. 

Should I sleep better in my bed at night knowing that it wasn’t 

as bad as we were hearing that it was? 

Mr. SHANDLEY. No, sir. Absolutely not. The chip is just deep inside right now. [Laughter.] 

Mr. CONYERS. Well, thank you very much. 

I just wanted to, on the record, commend you and the representative of your workers in the collective bargaining system for the 

work you are doing. And we would invite you to follow along with 

us as we try to shape a whole new approach in immigration legislation that minimizes what happened to you. 

Because, otherwise, let us face it, what is the point if you are 

going to get busted for trying to comply and comport with the law? 

And that is the spirit that I bring to this Committee, and I certainly admire your spirit to come and testify before us. 

Thank you, Madam Chairman. 

Mr. SHANDLEY. Put us at the head of the line on cooperation. 

Ms. LOFGREN. Will do. 

I would like to recognize now the gentlelady from Texas for 5 

minutes. 

Ms. JACKSON LEE. Good afternoon. 

Let me thank the Chairwoman and the Chairman of the full 

Committee and the Ranking Member. This is an instructive way of 

creating what I call a pathway to a sensible response to our immigration crisis. 

Let me characterize what many have described as government officials doing their job and, might I say, that the line officers on the 

ground, the ICE officers on the ground, are to be commended for 

their service. They are obviously being instructed on the basis of 

87

policy and on the basis of believing that they are correcting the crisis in the immigration structure in the United States. 

I claim it to be a reign of terror, because it does not create order. 

It does not create adherence to the law. It creates chaos and confusion. 

I come from Houston, Texas. Any number of times I will tell you 

of the panic that runs through the community when rumor has it 

that apartment buildings will be raided, that jobsites will be raided. Nothing constructive comes out of it. And as you have your 

meatpacking responsibilities, we happen to have an energized construction effort. 

Now, I would make the argument that there are wide numbers 

of Americans that can be employed and we know together we are 

going to make an effort to ensure that happens. But we also know 

that there are many times jobs going longing, wanting, and there 

are employers, even though we have been faulty in enforcement, 

there are employers who simply ask, such as my construction industry, give me a system, let me follow an adequate system and 

I will comply. 

So we failed on two ends. One, whether or not this Pilot program 

is even effective, one because there are inaccuracies, wrong names. 

It makes it very difficult and we don’t know if it works, and I understand the witness said hundreds of millions of dollars for it to 

work. 

So I am going to start with Dr. Rosenblum, whose experience I 

think started on the Senate side. Would a more corrected system 

of identification, of who is here, accurate, orderly system of documentation, something like we are trying to frame as we move forward in comprehensive immigration reform—several bills, as you 

know, have been filed. The Senate is still looking. But the concept 

is to find order where there is disorder and chaos. 

Would that begin to build a serious employer verification program? 

Mr. ROSENBLUM. Certainly, knowing who is here, bringing people 

out of the shadows, but also knowing, building a database, a reliable database of U.S. Citizens as well, because it is the same database, because when an employer is checking an employee’s status, 

the employer doesn’t know. So the database has to have access to 

both U.S. citizen data and immigrant data. 

Ms. JACKSON LEE. That is interesting. 

Mr. ROSENBLUM. And that is absolutely the critical step in any 

kind of employment verification process, is to verify somebody’s 

work eligibility. So without that, we can’t possibly do it properly. 

Ms. JACKSON LEE. And any efforts to merge a system that has 

citizens and non-citizens or undocumented would be at least a step 

going in a corrective direction. 

Mr. ROSENBLUM. There has been a lot of focus on the interoperability of the FSA and the DHS databases. Currently, what happens is that Basic Pilot basically queries both databases. It is a 

system of systems system. And database experts don’t really consider that particularly problematic. It is not ideal, but that is not 

really where the problem is. 

The problem is that both of these databases have lots of errors 

in them. 

88

Ms. JACKSON LEE. Clean it up. 

Mr. ROSENBLUM. Clean them up. And the real challenge is that 

ultimately the only way we can clean them up is to query them, 

is to have people go through the system. So we won’t really know 

until we start enrolling people. 

And so what the Senate bill conceived last year was to go ahead 

and start that query process, but to not non-confirm people until 

we are sure that we have got all those errors fixed and so to do 

the query and give people the opportunity to clear up their records, 

but to not fully turn on the enforcement until we have done that 

enrollment through the program. 

Ms. JACKSON LEE. John Shandley, thank you very much. There 

is only one employer, I believe, sitting here, so we are going to put 

the heavy burden of employers on you. 

Are you coming to this Committee complaining that you don’t 

want to be part of a process of verification or are you asking for 

relief in the instance of a corrected list, a list that works, error-free 

list? What are you saying about employer compliance with knowing 

who they are employing? 

Mr. SHANDLEY. Swift wants to be part of the solution, and the 

solution requires a whole systematic fix, both in the databases as 

well as the processes, ultimately down to how does the U.S. allow 

people to come into the U.S. to work. 

But, you know, we are not here to complain. We feel that we 

were unfairly treated, especially for somebody who complies with 

all of the laws. But, you know, that is water under the bridge. 

What we do have to do as an employer going forward, we do have 

to find a system of which we have the confidence that the government looks at and we look at in the same light, that is truly accurate and workable from a legal standpoint. 

Ms. JACKSON LEE. Madam Chairperson, I know the time is out, 

but I just simply want to make the statement on the record. For 

some reason, it has been given to the public that those of us who 

believe in comprehensive immigration reform are running away 

from legal structure. Employer verification is one. It is a very sensitive issue. 

I would like to be on the record that I am not running away from 

it, but I think that you cannot have employer verification that 

works without a system that documents those who are undocumented and a fair system of immigration reform. 

With that, I thank you, and I yield back. 

And I thank the witnesses for their testimony. 

Ms. LOFGREN. Thank you very much. 

Thanks to all of the witnesses for their testimony today. 

Without objection, Members will be given 5 legislative days to 

submit any additional written questions to these witnesses as well 

as the first panel. And we ask that witnesses answer questions as 

promptly as they can so that the answers can be made part of the 

record. 

And, without objection, the record will remain open for 5 legislative days for the submission of any other additional material. 

I think this hearing today has helped to illuminate numerous 

issues about the Nation’s employment verification and worksite enVerDate 0ct 09 2002 14:17 Jul 19, 2007 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\042407\34925.000 HJUD1 PsN: DOUGA
89

forcement system. It has been very helpful to me, and I think it 

will be helpful to the Congress as we move forward. 

Somebody asked me earlier what are we doing with these hearings, and I said we have a secret plan to be well-informed when 

we actually take action. 

So to that end, our next hearing is planned for 9:30, Thursday 

morning, in the room downstairs, 2141. That will be potential solutions to some of the issues that have been outlined here today. 

We are aware that we lost our dear colleague, Juanita MillenderMcDonald. The funeral arrangements are being made. If the funeral for Juanita conflicts, our hearing will be postponed to the following week. Otherwise, we will proceed at 9:30. 

And, again, thank you so very much for taking your time to help 

the Congress on this very important questions. 

This meeting is adjourned. 

[Whereupon, at 12:46 p.m., the Subcommittee was adjourned.] 

(91)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

92

LETTER FROM JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY TO THE

HONORABLE JOHN CONYERS, JR., CHAIRMAN, COMMITTEE ON THE JUDICIARY


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INS BASIC PILOT EVALUATION SUMMARY REPORT SUBMITTED TO THE U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, PREPARED BY THE

INSTITUTE FOR SURVEY RESEARCH, TEMPLE UNIVERSITY, AND WESTAT ON JANUARY

29, 2002


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INTERIM FINDINGS OF THE WEB-BASED BASIC PILOT EVALUATION SUBMITTED TO THE

U.S. DEPARTMENT OF HOMELAND SECURITY, PREPARED BY WESTAT IN DECEMBER

2006, AND ACCOMPANYING LETTER FROM JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF

HOMELAND SECURITY TO THE HONORABLE ZOE LOFGREN, CHAIRWOMAN, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND

INTERNATIONAL LAW


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‘‘ALTERNATIVE STRATEGIES FOR PREVENTING FALSE NEGATIVES AND IDENTITY THEFT

PROBLEMS IIN AN ELECTRONIC ELIGIBILITY VERIFICATION SYSTEM’’ BY MARC

ROSENBLUM, PH.D., DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NEW ORLEANS


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