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LACK OF WORKSITE ENFORCEMENT

AND EMPLOYER SANCTIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JUNE 21, 2005

Serial No. 109–51

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 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

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 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

LUKE BELLOCCHI, Full Committee Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

C O N T E N T S 

JUNE 21, 2005

OPENING STATEMENT 

Page 

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Chairman, Subcommittee on Immigration, Border 

Security, and Claims ............................................................................................ 1

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

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 2

WITNESSES 

Mr. Richard M. Stana, Director, Homeland Security and Justice Issues, U.S. 

Government Accountability Office 

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

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

Mr. Terence P. Jeffrey, Editor, Human Events

Oral Testimony ..................................................................................................... 32

Prepared Statement ............................................................................................. 33

Mr. Carl W. Hampe, Partner, Baker & McKenzie, LLP 

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

Prepared Statement ............................................................................................. 37

Ms. Jennifer Gordon, Associate Professor of Law, Fordham Law School 

Oral Testimony ..................................................................................................... 41

Prepared Statement ............................................................................................. 43

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Maxine Waters, a Representative in 

Congress from the State of California ................................................................ 71

(1)

LACK OF WORKSITE ENFORCEMENT

AND EMPLOYER SANCTIONS 

TUESDAY, JUNE 21, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:25 p.m., in Room 

2141, Rayburn House Office Building, the Honorable John N. 

Hostettler, Chairman of the Subcommittee, presiding. 

Mr. HOSTETTLER. The Subcommittee will come to order. 

In March this Subcommittee held hearings on the lack of immigration enforcement resources, which has led to much discussion on 

Capitol Hill regarding the need to boost the number of Border Patrol agents, and Immigration and Customs Enforcement, or ICE, 

investigators. 

It now appears that Congress will include in its final budget for 

2006 the majority of Border Patrol agents and ICE agents authorized in the Intelligence Reform and Terrorism Prevention Act of 

2004, but does not include the full number of agents authorized. 

Increasing the number of agents in the field, however, will only 

be helpful in bringing illegal immigration under control if the 

agents are allowed to be fully committed to immigration enforcement and not solely to other enforcement duties. 

In May, the Subcommittee held hearings on how immigration enforcement has suffered as a result of both ICE and CBP having 

multiple missions, and ICE lacking a written mission strategy. 

Even if multiple missions were not distracting the critical national security work of these agencies of the Department of Homeland Security, this Subcommittee must ask whether the internal 

immigration enforcement that has been conducted since ICE’s creation has been effective. 

There is no doubt that physical control of the borders by Border 

Patrol will play a critical role in bringing law and order over illegal 

immigration; however, this alone cannot be sufficient because almost half of illegal aliens arrived here legally and simply found 

jobs and never went back. 

The ‘‘black market’’ in cheap illegal labor must be attacked for 

the safety of the American workers and the Nation as a whole. 

As this chart indicates, thousands of employers are sending in 

duplicate Social Security numbers multiple times for different 

workers, perhaps hiding the identity or criminal history of illegal 

aliens working next to you. 

2

The ‘‘jobs magnet’’ that has motivated so many aliens to enter 

the country and work illegally has—as we learned in last month’s 

hearing on American workers—impacted most heavily on those 

low-income and unskilled Americans that are the most vulnerable 

in the economy. 

The Congressional Budget Office published these figures in November. 

Moreover, the terrorist and criminal ‘‘needles’’ in the worksite 

haystack cannot be detected without the overall deterrent effect 

that broad and aggressive worksite enforcement would achieve. 

In other words, ICE must reduce the size of the haystack if ICE 

is to find the really bad apples. So far, ICE appears to be reactive 

to events rather than proactive in pursuing a strategic plan. 

In fact, as this most important chart of the hearing indicates, 

ICE has pursued almost no worksite enforcement at all, ever since 

its creation. 

As I hope you will see and understand, there has been a dramatic decline in the work-years, work-hours devoted by legacy Immigration & Naturalization Service, and by ICE agents toward 

worksite enforcement—enforcing the 1986 law providing that employers could not employ illegal aliens and had to verify the documents of all new employees. 

Save a few ‘‘Critical Infrastructure’’ worksites, ICE has conducted almost no worksite enforcement. Of the critical infrastructure facilities investigated, no employer has been fined when illegal 

aliens have been found at the worksite. 

In total, only three Notice of Intent to Fine, or NIFs, have been 

issued by ICE in FY 2004, following the long trend that this following chart indicates. 

In total, worksite enforcement amounts to less than 5 percent of 

all of ICE’s investigation activities. ICE today is doing less worksite enforcement than even the Clinton Administration did, and 

that is quite a dubious distinction. 

Today we will learn why Congress acted in 1986 to create employer sanctions and why they have never been adequately enforced. 

Mr. HOSTETTLER. And at this time I yield to the gentlelady from 

Texas, the Ranking Member, for an opening statement. 

Ms. JACKSON LEE. I thank the distinguished Chairman, and I 

thank the witnesses. 

I’m going to be forthright this afternoon and indicate that I’ve 

had a number of thoughts about workforce, worksite enforcement. 

And as someone who has repeatedly offered the comments that immigration does not equate to terrorism, and have a full recognition 

that really what we’re facing in the United States is an onslaught 

of people who have come for opportunity. 

The system that we have structured begs and creates this pool 

of illegal immigration because we have not fixed the system of legal 

immigration. And frankly, I think it’s important in this instance, 

particularly talking about employment, employers, worksites, to 

note that the origins of our immigration cycle, at least that of the 

1800’s, late 1800’s and early 1900’s, were people seeking opportunity, economic opportunity, and those who fled persecution. 

3

And so I’ve had sort of the thought that this hearing will be very 

important to the focus that I will give to legislation that I am considering, whether or not in fact worksite enforcement in a harsh 

way actually hurts Americans, actually hurts employers, and does 

little to stem the tide of illegal immigration. 

The Immigration Reform and Control Act of 1986 established 

Federal sanctions for employing undocumented immigrants. The 

objective of these sanctions is to eliminate the United States as a 

job magnet that draws undocumented immigrants to the United 

States and keeps them here. 

IRCA also established legalization programs for some immigrants 

who had been residing illegally in the United States prior to 1982 

and for others who had worked in the United States agriculture for 

at least 1 year. Approximately 3 million obtained lawful status 

under these programs. Fines for first-time violations started at 

$250 per unauthorized employee, and increased to as much as 

10,000 per employee for third and subsequent violations. Employers engaging in a pattern and practice of employing unauthorized 

workers are subject to fines of as much as 3,000 per employee and 

incarceration for up to 6 months. 

IRCA has established a universal employment verification system. Violations of the verification requirements may result in penalties ranging from $100 to 1,000 per employee. Employers are required to attest that they have examined documentation that appears to be genuine and that establishes the employee’s identity 

and authorization to work in the United States. 

The former Immigration & Naturalization Service, Department 

of Homeland Security have not made employer sanctions a priority. 

We can see the evidence of it. We can read and hear about headlines of stories of illegal immigrants now in security areas or areas 

that should be having the necessity of security clearances. Only 

417 Notices of Intent to Fine were issued in 1999, 178 in 2000, 100 

in 2001, 53 in 2002, 162 in 2003, and only 3 in 2004. Maybe we’re 

getting better. 

The employer sanction system has had some unintended consequences. According to Jennifer Gordon in her book, ‘‘Suburban 

Sweatshops,’’ many employers take a minimalist approach to complying with the law until the workers make a demand the employers want to resist. It may be a simple request for a bathroom break 

or for overtime wages. More often it is a union-organizing campaign. If he has not filled out I-9 forms, he decides to comply with 

the law, forcing all the workers to provide legal papers on the spot, 

which means immediate termination. If he has I-9 forms filed already, he begins to pay new attention to them, calling the Social 

Security Administration to check on the validity of numbers. 

Ms. Gordon concludes that employer sanctions have become the 

perfect cloak under which to carry out an effective campaign of intimidation, sending the clear message that immigrant workers who 

organize are not the kind of immigrant workers to get jobs, but it 

also gives you a rotating door, but it does not provide an opportunity for hiring new American workers or documented workers, it 

only throws out the last bunch and adds a new bunch that will be 

quiet, asks no questions, and subject themselves to low-based 

wages. It is not easy to stop this kind of abuse. 

4

The National Labor Relations Act provides that it is an unfair 

labor practice to fire workers on the basis of union activity. The 

normal remedy for such an offense is to require the employer to rehire the fired workers and make them whole, which may include 

back pay. In Hoffman Plastic Compounds v. National Labor Relations Board, however, the U.S. Supreme Court ruled that Federal 

immigration policies prohibit awarding undocumented workers 

back pay under the provisions of the National Labor Relations Act. 

This decision has made it possible for employers to fire undocumented workers for union activities with impunity, and some employers also have used this decision as a justification for denying 

undocumented the protections of the Fair Labor Standards Act. At 

that level of work, make it very clear that I don’t believe that that 

employer then goes out and recruits large numbers of American 

workers. 

The AFL-CIO advocates strong penalties against employers who 

use workers’ immigration status to suppress their rights and labor 

protections, thereby also denying fair compensation to documented 

American workers as well. And I agree that this is a problem. It 

is unfair to the foreign workers and it has the indirect effect of 

harming workers who are lawful permanent residents or citizens of 

the United States. Unscrupulous workers will not hire American 

workers if they can force undocumented employees to work for 

lower wages than the American workers would require. 

So a solution, Mr. Chairman, is partly this hearing, and being informed, and hearing from a diverse groups of witnesses, which I 

appreciate, who are before us. 

But I think the other solution is to move quickly to the overall 

comprehensive immigration reform that this Nation is begging to 

have, and I look forward to the Save America Comprehensive Immigration Act of 2005 that I’ve authored, that has seen—that has 

received a number of very favorable reviews from experts dealing 

with immigration law, to have a hearing so that we can have one 

piece of it be heard, and that is the earned access to legalization, 

the ability to get in line, to stand in line and to seek legalization 

so that we can have workers that are on equal plane with American workers, and begin to build jobs and create jobs as opposed to 

an approach that may not create jobs. 

I thank you, Mr. Chairman, and with that, I yield back my time. 

Mr. HOSTETTLER. The gentlelady’s time has expired. 

At this time, I will introduce members of our panel. Richard 

Stana is the Director of Homeland Security and Justice Issues at 

the Government Accountability Office. During his 29-year career 

with GAO he has directed reviews on a wide variety of complex 

military and domestic issues in headquarters, the field and overseas offices. 

Most recently, he has directed GAO’s work relating to law enforcement, drug control, immigration, customs, corrections, court 

administration and election systems. 

Mr. Stana earned a Master’s degree in Business Administration 

with a concentration in Financial Management from Kent State 

University. He is also a graduate of Cornell University’s Johnson 

School of Management Program on Strategic Decision Making, and 

5

Harvard University’s JFK School of Government Program on Leadership and Performance. 

Since September 1996, Terence Jeffrey has served as Editor of 

Human Events—the National Conservative Weekly. In 1991, Mr. 

Jeffrey became the Research Director of Pat Buchanan’s Republican presidential primary campaign, and served as campaign manager for Buchanan’s second Republican presidential primary campaign. 

Mr. Jeffrey started his writing career in 1987 when he became 

an editorial writer for The Washington Times. Prior to that he 

taught high school, studied Arabic at the American University in 

Cairo, and studied at Georgetown University. Mr. Jeffrey graduated from Princeton University with a bachelor’s degree in 

English literature. 

Carl Hampe is currently a partner at Baker & McKenzie, focusing on immigration and legislative matters. From 1992 to 1993, 

Mr. Hampe was Deputy Assistant Attorney General in the Office 

of Legislative Affairs, U.S. Department of Justice, where he was responsible for all legislation in Congress which affected the Immigration & Naturalization Service or the Executive Office for Immigration Review. In addition, Mr. Hampe represented the U.S. in 

appellate immigration litigation. 

Prior to that he served as Counsel and Minority Counsel to the 

Senate Subcommittee on Immigration and Refugee Affairs of the 

Committee on the Judiciary. 

Mr. Hampe earned his B.A. with honors from Stanford University and graduated magna cum laude from the Georgetown University Law Center. 

Jennifer Gordon is Associate Professor of Law at Fordham Law 

School in New York City. In 1992, she founded the Workplace 

Project in New York, a nationally recognized grass roots workers 

center that advocates for just treatment on the job. Ms. Gordon has 

worked as a consultant to the AFL-CIO, the Campaign for Human 

Development of the Catholic Church, and the Ford Foundation, 

among others. 

She is also author of the book ‘‘Suburban Sweatshops: The Fight 

For Immigrant Rights,’’ that we heard about earlier. And she has 

received numerous awards for her work, including being selected as 

one of the National Law Journal’s 40 leading lawyers under the 

age of 40, and being named ‘‘Outstanding Public Interest Advocate 

of the Year’’ by the National Association for Public Interest Law. 

Ms. Gordon earned her B.A. from the Radcliffe Institute at Harvard University and her J.D. from Harvard Law School. 

At this time, according to Committee procedure, I would ask the 

witnesses to stand and raise your right hand. 

[Witnesses sworn.] 

Mr. HOSTETTLER. Thank you. You may be seated. 

Let the record reflect that the witnesses responded in the affirmative. 

Mr. Stana, you are recognized for 5 minutes, and all members of 

the panel will have 5 minutes for your opening statement. Mr. 

Stana. 

6

TESTIMONY OF RICHARD M. STANA, DIRECTOR, HOMELAND 

SECURITY AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STANA. Chairman Hostettler, Congresswoman Jackson Lee 

and Members of the Subcommittee, I appreciate the opportunity to 

participate in this hearing today on worksite enforcement and employer sanctions efforts. 

As we and others have reported in the past, the opportunity for 

employment is a key magnet attracting illegal aliens to the United 

States. In 1986, Congress passed the Immigration Reform and Control Act, or IRCA, which made it illegal to knowingly hire unauthorized workers. IRCA established an employment verification 

process for employers to verify all newly hired employees’ work eligibility, and a sanctions program for fining employers who did not 

comply with the act. 

As the U.S. Commission on Immigration Reform reported, immigration contributes to the U.S. national economy by providing 

workers for certain labor-intensive industries. Yet, immigration, especially illegal immigration, can have adverse consequences by 

helping to depress wages for low-skilled workers. The Commission 

concluded that deterring illegal immigration requires a more reliable employment verification process and a more robust worksite 

enforcement program. 

My prepared statement is drawn from our ongoing work for this 

Subcommittee to assess the employment verification process and 

ICE’s worksite enforcement program. I’d like to briefly summarize 

it now and discuss the current employment verification process and 

ICE’s priorities and resources for worksite enforcement. 

The employment verification process is primarily based on employers’ review of work authorization documents presented by new 

employees, but various weaknesses, such as its vulnerability to 

fraud, have undermined this process. Employers certify that they 

have reviewed documents presented by their employees and that 

the documents appear genuine and relate to the individual presenting the documents. However, the availability and use of counterfeit documents and the fraudulent use of documents that are 

valid and belong to others, have made it difficult for employers who 

want to comply with the employment verification process to ensure 

that they hire only authorized workers. 

It also makes it easier for employers who don’t want to comply, 

to knowingly hire unauthorized workers without fear of sanction. 

This further is complicated by the fact that employees can present 

27 different documents to establish their identity and/or work eligibility. In 1998, INS proposed revising the verification process and 

reducing the number of acceptable work eligibility documents to 14, 

but that proposal was never acted upon. 

To bolster the verification process, DHS, at the direction of Congress, introduced the Basic Pilot Program, a voluntary, automated 

system for employers to electronically check employees’ work eligibility information against information in DHS and Social Security 

Administration databases. In fiscal year 2004, about 2,300 employers actively used the Basic Pilot Program. This program shows 

promise to help identify the use of counterfeit documents and assist 

ICE in better targeting its worksite enforcement efforts. Yet a 

7

number of weaknesses exist in the pilot program, including its inability to detect the fraudulent use of valid documents, and DHS 

delays in entering information into its databases. In addition, CIS 

officials told us the current Basic Pilot Program would not be able 

to complete timely verifications with existing resources if the number of employers using the program significantly increased. 

Turning to worksite enforcement, this has been a low priority 

under both INS and ICE. In fiscal year 1999, INS devoted about 

240 FTEs, or about 9 percent of its total agent work-years, to address the employment of millions of unauthorized workers. In fiscal 

year 2003, it devoted about 90 FTE’s or about 4 percent of total 

agent work-years. That many people would not fill the chairs behind me in this hearing room. Furthermore, the number of Notices 

of Intent to Fine issued to employers for knowingly hired unauthorized workers or improperly completing employment verification 

forms dropped from 417 in fiscal year 1999 to 3 in fiscal year 2004. 

Some of this reduced activity in worksite enforcement can be attributed to a shift in agency priorities. Since 9/11, ICE focused 

worksite enforcement resources almost exclusively on identifying 

and removing unauthorized workers from critical infrastructure 

sites, such as airports and nuclear power plants. Other issues have 

also hampered worksite enforcement issues. In particular, the 

availability and use of counterfeit documents has made it difficult 

for ICE agents to prove that employers knowingly hired unauthorized workers. Further, employers who knowingly hire or continue 

to employ unauthorized aliens may be fined from $275 to $11,000 

for each employee. Fine amounts are often negotiated down in 

value during discussions between ICE attorneys and employers to 

a point so low that employers might view it as a cost of doing business rather than as an effective deterrent. And collecting fines from 

employers is difficult in many cases because employers go out of 

business or declare bankruptcy. 

In closing, we plan to further develop these and other program 

management issues and report to you on the final results of our 

work later this summer. This concludes my oral statement. I’d be 

happy to address any questions that Members of the Subcommittee 

may have. 

[The prepared statement of Mr. Stana follows:]

8

PREPARED STATEMENT OF RICHARD M. STANA


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Mr. HOSTETTLER. Thank you, Mr. Stana. 

Mr. Jeffrey. 

TESTIMONY OF TERENCE P. JEFFREY, EDITOR, HUMAN 

EVENTS

Mr. JEFFREY. I would like to thank you, Chairman Hostettler 

and Congresswoman Jackson Lee and the other Members of the 

Committee for having me here today. 

I will briefly outline a problem I believe is happening where national security, Social Security and corporate accountability intersect. 

In February, Admiral James Loy, Deputy Secretary of Homeland 

Security, told the Senate Intelligence Committee, ‘‘Recent information from ongoing investigations, detentions and emerging threat 

streams strongly suggest that al Qaeda has considered using the 

Southwest border to infiltrate the United States. Several al Qaeda 

leaders believe operatives can pay their way into the country 

through Mexico and also believe illegal entry is more advantageous 

than legal entry for operational security reasons.’’ If for no other reason than national security, the Federal Government needs to take the most effective steps possible to secure our 

border and enforce the immigration laws. Yet today, almost 4 years 

after the September 11, 2001 terrorist attacks, unidentified persons 

continue to pour across our border and many millions live here in 

violation of our immigration laws, seemingly with impunity. Certainly the opportunity to find work in the U.S. is a powerful magnet for illegal immigrants. The sheer number of these job seekers 

makes it more difficult for a limited number of immigration law enforcement officers to secure the border and enforce the immigration 

law in the interior of the country. 

A focused effort to shut down the job magnets, to stop employers 

from routinely hiring large numbers of illegal immigrants could diminish this flow, thus making it easier to secure our country. 

Where are those job magnets? 

The Social Security Administration I believe has already created 

what could be an effective road map for worksite enforcement. 

When SSA gets a W-2 report from an employer that it cannot 

match to a known taxpayer, it dumps that W-2 into what it calls 

the Earning Suspense File. These are W-2s, for example, that have 

bad Social Security numbers or Social Security numbers and names 

that do not match, and where efforts to find the person to whom 

the W-2 belong have failed. There are many reasons an employer 

might file one of these bad W-2s. 

One reason, however, is that the W-2 represents a non-citizen, 

whether he entered legally or illegally, is unauthorized to work in 

the U.S. In fact, then SSA Inspector James G. Huse told this Committee in 2002, ‘‘Our reviews of the suspended wages in the ESF 

suggest that illegal work is the primary cause of suspended wages.’’

If that is the case, it can at least be reasonably suspected that 

employers that routinely file large numbers of unmatchable W-2s 

may be hiring large numbers of illegal immigrants. According to an 

audit report published in October by the Social Security Administration’s Inspector General, each year the SSA’s Office of Public 

Services and Operations Support develops a national listing of emVerDate 0ct 09 2002 13:17 Oct 25, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\062105\21911.000 HJUD2 PsN: 21911
33

ployers who submit 100 or more suspended wage items. This can 

be a road map for worksite enforcement. 

But perhaps even a better map would be the October report 

itself, which lists by state, but not publicly by name, the 100 U.S. 

employers who filed the largest number of unmatchable W-2s between 1997 and 2001. You can see the appendix from the report 

up here, which lists the No. 1 company on this list, which is based 

in Illinois. It filed a remarkable 131,991 unmatchable W-2s over 5 

years, reporting more than 524 million in wages paid by unknown 

taxpayers to the Federal Government. SSA believes current law 

prevents it, with certain exceptions, from naming such companies 

to the Department of Homeland Security. 

The law should be changed. DHS ought to be given the manpower and the mandate to find out if some of the U.S. employers 

filing large numbers of unmatchable W-2s are also creating a magnet that draws large numbers of illegal immigrants into the United 

States. 

Thank you. 

[The prepared statement of Mr. Jeffrey follows:]

PREPARED STATEMENT OF TERENCE P. JEFFREY

The Department of Homeland Security has been failing in its mission to enforce 

the immigration laws against employers who, by hiring large numbers of illegal 

aliens, create the magnet that draws large numbers of illegal aliens into the United 

States. 

Meanwhile, the Social Security Administration has information that could be very 

useful to DHS in getting this job done. But SSA believes the law prevents it from 

giving this information to DHS. 

I will briefly describe for you a problem occurring where national security, Social 

Security and corporate accountability intersect. 

Testifying in the Senate Intelligence Committee in February, Admiral James Loy, 

the deputy secretary of Homeland Security, said, ‘‘Several al-Qaeda leaders believe 

operatives can pay their way into the country through Mexico and also believe illegal entry is more advantageous than legal entry for operational security reasons.’’

Loy also pointed to ‘‘the threat from criminal groups and persons who engage in 

criminal enterprise that supports or contributes to terrorism and which has homeland security implications.’’ He cited, among other examples, ‘‘people smuggling . . . 

document forgery and false identity provision.’’

These are crimes that serve the needs not only of illegal aliens who sneak into 

the United States to find work, but also of illegal aliens who would sneak into the 

United States to commit terror. 

Mass illegal immigration—and employers who encourage it by hiring large numbers of illegal aliens—has created an inland sea of lawlessness in which terrorist 

sharks can readily swim. 

A recent case illustrates how someone with terrorist connections in the Middle 

East can enter the United States illegally from Mexico and then live here as an illegal alien. 

In March, Mahmoud Kourani pleaded guilty to conspiracy to support the terrorist 

organization Hezbollah by helping raise money for it in the United States. On June 

14, he was sentenced to 4 and 1⁄2 years in prison. ‘‘The government,’’ the Associated 

Press reported, ‘‘said Kourani paid a Mexican consular official in Beirut $3,000 for 

a visa to enter Mexico, then sneaked across the U.S.-Mexican border in 2001 . . .’’

How many other security risks have entered the United States this way? If we 

do not secure our border, and do not seriously enforce the immigration laws within 

the country, how could we ever know? 

The government does know, however, where to look for the employment magnets 

that attract large numbers of illegal aliens into the United States. If it were to shut 

these magnets down, it could significantly curtail the number of work-seeking illegal 

aliens trying to enter the country, thus making it easier for the Department of 

Homeland Security to secure the border itself and to find those who may have illicitly crossed it with intent to harm Americans. 

34

The Social Security Administration has already developed information that can be 

used as the road map for worksite immigration enforcement. 

The SSA maintains something it calls the Earnings Suspense File. This is the 

place where it puts W-2 forms submitted by employers that cannot be matched to 

known taxpayers. These W-2s may have a Social Security Number that does not 

match the name on the form, or a Social Security Number that has never been 

issued by SSA, or a number that simply could not be a Social Security Number. 

There are many reasons employers might file W-2s with bad Social Security Numbers. But one significant reason is the hiring of aliens, who whether they entered 

the country legally or illegally, are not authorized to work in the United States. In 

fact, in a statement submitted to this subcommittee on Sept. 19, 2002, then-SSA Inspector General James G. Huse, Jr., said: ‘‘Our reviews of the suspended wages in 

the ESF suggest that illegal work is the primary cause of suspended wages.’’ This being the case, it is reasonable to at least suspect that employers habitually 

filing large numbers of bad W-2s may be hiring large numbers illegal aliens. 

The Social Security Administration, fortunately, already compiles an annual list 

of employers who file large numbers of bad W-2s. In an October 2004 audit report 

entitled ‘‘Employers With the Most Suspended Wage Items in the 5-Year Period 

1997 through 2001,’’ the SSA Inspector General’s office said that SSA’s Office of 

Public Services and Operations Support each year ‘‘develops a national listing of employers who submit 100 or more suspended wage items.’’ The same audit report listed the 100 employers that between 1997 and 2001 filed 

the largest number of W-2s that could not be matched to known taxpayers. The report did not reveal the names of these employers, but identified them by the state 

in which they are based. It also listed how many W-2s each company had filed during the five-year period, and how many of these were bad. 

Some of these employers apparently filed tens of thousands of bad W-2s, year 

after year. 

The No. 1 filer of bad W-2s between 1997–2001, for example, was based in Illinois. It filed 131,991 bad W-2s over the five years, reporting more than $524 million in 

wages that SSA could not attribute to known taxpayers. These bad W-2s accounted 

for 11.68% of all W-2s this company filed during that time. 

The No. 2 filer of bad W-2s was based in Texas. It filed 108,302 bad W-2s over 

the five years, reporting more than $532 million in wages that SSA could not attribute to known taxpayers. More than 14% of this employer’s W-2 were bad. 

A California employer, ranked No. 13, had more than 78% its W-2s dumped into 

the Earnings Suspense File. A Florida employer, ranked No. 47, had more than 

81%. 

One of the Top 100 filers of bad W-2s, the audit determined, was a state agency. 

The report did not reveal in which state this agency was based. 

The report also included troubling information beyond the Top 100 list. For example, it noted that a California based security guard company had filed 8,902 W-2s 

in 2001 of which 4,321, or 49%, were bad 

I asked the SSA IG’s office if it had notified the Department of Homeland Security 

about this security guard company’s problem. The IG’s office responded that ‘‘with 

limited exception, Section 6103 of the Internal Revenue Code restricts the disclosure 

of such information. In our January 2001 report on Obstacles to Reducing Social Security Number Misuse in the Agricultural Industry, we recommended that SSA reevaluate the application of existing disclosure laws or seek legislative authority to 

remove barriers that would allow SSA to share information regarding chronic problem employers with the other federal agencies such as the Department of Homeland 

Security. Until such disclosure restrictions are removed, we are unable to share this 

type of information outside the context of a criminal investigation.’’

In a report published in April, entitled ‘‘Social Security Misuse in the Service, 

Restaurant, and Agricultural Industries,’’ the SSA IG’s office said: ‘‘Because we believe intentional misuse of SSNs by unauthorized noncitizens has been a major contributor to the ESF’s growth, we will provide a copy of this report under separate 

cover to the DHS inspector general.’’

‘‘Furthermore,’’ said the report, ‘‘we continue to believe SSA should seek legislative authority to remove barriers that would allow the Agency to share information 

regarding chronic problem employers with DHS.’’

Congress needs to tear down the wall that prevents SSA from passing this information to DHS. 

Yet, tearing down the wall may not be enough. Clearly, the agents who do immigration investigations for DHS deserve respect and credit for the excellent work 

they do. But there does not seem to be enough of them. 

Last Friday, I asked DHS’s Immigration and Customs Enforcement (ICE) division 

how many full-time active duty investigators it has investigating violations of immiVerDate 0ct 09 2002 13:17 Oct 25, 2005 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\062105\21911.000 HJUD2 PsN: 21911
35

gration laws. ‘‘There are roughly 5,500 criminal investigators at ICE,’’ the agency 

responded. ‘‘These special agents enforce both immigration and customs laws, which 

together involve more than 400 statutes. Nearly all ICE criminal investigators have 

completed cross-training to enforce these 400 statutes. There is not a specific segment of the ICE special agent population that is solely dedicated ‘full-time’ to enforcing one particular violation of law at the expense of all other violations that ICE 

is responsible for enforcing. On any given day, investigative resources are prioritized 

to best address national security and public safety priorities. ‘‘In accordance with ICE’s homeland security mission, ICE special agents 

prioritize worksite enforcement efforts by focusing on those worksite investigations 

related to critical infrastructure, national security and employers who engage in 

egregious criminal violations. ‘‘Unauthorized workers employed in sensitive security sites and critical infrastructure facilities—such as airports, nuclear power and chemical plants and defense contractors—pose potential homeland security threats,’’ ICE said. ‘‘Not only is their 

identity in question, but they are also vulnerable to exploitation by terrorists and 

other criminals.’’ ICE provided a number of examples of the good work its agents have done in this area. But, if on ‘‘any given day’’ only a portion of ICE’s 5,500 investigators are dedicated 

to worksite enforcement, that means it is quite possible that the California security 

guard company that filed 4,321 bad W-2s back in 2001 may have had more people 

working that year on bad Social Security Numbers than the Department of Homeland Security has working today to enforce the immigration law at worksites across 

the entire United States. 

This is absurd. 

Congress has authorized increasing the number of ICE investigators by 800 per 

year for the next five years. These increases should be fully funded, and more 

should be added if necessary. DHS should then deploy some of these agents specifically to investigate those employers that SSA has discovered habitually file large 

numbers of bad W-2s. If the evidence shows these employers have knowingly hired 

illegal aliens they should be held accountable under the law. 

If the federal government shuts down the magnet that attracts illegal aliens here 

to work, it will be easier to secure our country against those who come here illegally 

looking not to work, but to harm us.

Mr. HOSTETTLER. Thank you, Mr. Jeffrey. 

Mr. Hampe. 

TESTIMONY OF CARL W. HAMPE, PARTNER, BAKER & 

McKENZIE, LLP 

Mr. HAMPE. Thank you, Mr. Chairman, Congresswoman Jackson 

Lee and Members of the Subcommittee. Thank you for inviting me 

to testify today, and thank you for devoting your time to this critically important issue, the oversight of employer sanctions. 

I share my 22-year experience with employer sanctions in my 

written statement, and would like to highlight the key historical 

lessons and provide some recommendations in the next 5 minutes. 

The history of employer sanctions is not whether they should be 

part of the law or not. There is a strong bipartisan support for that. 

There has been for the past 20 years, and there is today. But rather, the historical challenge is how to create a worker verification 

system that is relatively secure, and that imposes minimal burdens 

on U.S. employers. Unfortunately, a secure worker verification system has so far proven to be elusive, both politically and practically, 

and thus is the Achilles heel of employer sanctions. 

Enactment of sanctions in 1986, with its reliance solely on existing Federal, State and local documents, created ripe opportunities 

for fraud, and after sanctions were enacted the fraud became only 

more prevalent. The subsequent INS implementing regulations provided a long list of documents that satisfied the I-9 form and ultimately only increased the problem. While the low level of employer 

36

sanctions enforcement by ICE is inappropriate and must be reversed, the susceptibility of the current regime to document and 

identity fraud creates I believe an understandable feeling of futility 

and low morale within this agency. 

And certain structural forms are necessary so that ICE can rededicate itself to sanctions enforcement with a sustainable strategy. One route to doing so is to expand the use of computerized 

database checks of the alien number or Social Security number of 

new employees. The Jordan Commission recommended this in 

1994. The Congress created the Basic Pilot in 1996 in response, but 

further improvements to Basic Pilot are necessary, as indicated by 

GAO. 

Another option is to increase the security of current identity and 

work authorization documents. Congress took a significant step forward toward improving the identity requirement of the I-9 form 

when it required improvements in State driver’s licenses in the 

REAL ID law. 

A remaining significant challenge, however, is the security of the 

principal work authorization document, the Social Security card, 

and the political opposition that exists to making this document 

more secure. A related problem is the recent prevalence of identity 

theft based on stolen Social Security numbers. Both issues must be 

addressed if employer sanctions are to obtain a level of internal integrity that policymakers would find satisfactory. 

I do believe there’s a bright spot in this picture. In my post-government experience I have found that most employers agree, most 

employers agree that they should not knowingly hire unauthorized 

aliens, and they’re willing to tolerate reasonable mechanisms to 

demonstrate compliance. This is an important fact for ICE to understand, as an improved employer sanctions enforcement regime 

must view the vast majority of U.S. employers as partners and not 

adversaries in the enforcement process. 

Let me provide three recommendations on some improvements. 

One, once the REAL ID law is implemented, Congress or DHS 

should limit the documents that satisfy the identity aspect of the 

I-9 form to compliant State driver’s licenses and a U.S. passport or 

appropriately endorsed foreign passport. 

Two, there must be an improvement in the security of documents 

and the processes that satisfy the work authorization aspect of the 

I-9 form, principally the Social Security account number database 

and card. I respectfully suggest to this Subcommittee that such a 

task, though fraught with political turmoil, is worthy of your time 

and effort. 

The Department of Homeland Security can help on this aspect by 

improving the effectiveness of the Basic Pilot Program, and by utilizing it on a much larger scale. To improve its effectiveness, DHS 

must standardize its indicators that someone has stolen the identity of the proper holder of the account number, and it must then 

create a reliable process when identify theft appears likely, so that, 

one, employers using Basic Pilot are alerted, but importantly, two, 

that the individual submitting the number to satisfy the I-9 form 

is given a chance to rectify the problem before being denied employment. I also believe DHS must engage in a dedicated program 

of recruitment of employers into the voluntary basic pilot program. 

37

Finally, my third recommendation is that DHS and DOJ should 

significantly increase the investigation and prosecution of document and identity fraud, and I can discuss some details of that if 

you would like during the question period. For the most part, the 

enemy of employer sanctions is not the unscrupulous employer, of 

which admittedly there are some, but rather the false documents 

vendors and identity thieves that seek to defeat the entire employer sanctions system. 

Thank you very much 

[The prepared statement of Mr. Hampe follows:]

PREPARED STATEMENT OF CARL HAMPE

Mr. Chairman, Ranking Member Lee, and Members of the Subcommittee: 

Thank you for this opportunity to provide an historical perspective on the employer sanctions program. In summary, I believe employer sanctions are a commonsense immigration law enforcement tool that should be a component of any comprehensive regime to detect and deter unauthorized immigration. Implementation of 

this program in the United States, however, has not had its desired effect for a variety of reasons. I will therefore describe the history and purpose of the employer 

sanctions regime, discuss recent changes and pilot programs, and make some recommendations for increasing their effectiveness. 

I. PRE-ENACTMENT HISTORY AND PURPOSE

I first became aware of the employer sanctions proposal when I began work in 

1983 as a staff member of the Immigration Subcommittee of the Senate Judiciary 

Committee. After the enactment of employer sanctions in the Immigration Reform 

and Control Act (IRCA) of 1986, I and other subcommittee staff worked closely with 

then-INS Commissioner Alan Nelson and his colleagues on the program’s regulatory 

implementation. While at the U.S. Department of Justice in the early 1990’s, I 

worked with INS officials on numerous implementation issues and proposed legislative changes. Since entering private practice in 1993, I have represented a number 

of companies in obtaining amendments to the employer sanctions statute, conducting internal I-9 audits, and responding to sanctions-based enforcement actions 

by the Service. 

When championing the enactment of IRCA, Former Senator Alan Simpson (R-WY) 

used to observe: ‘‘Upon becoming chairman of the Senate Immigration Subcommittee, I was astounded to learn that it was illegal to be an illegal alien, but 

it was not illegal for a U.S. employer to hire one.’’

The core logic of this statement remains the most compelling basis for a U.S. employer sanctions law. And employer sanctions indeed were the central feature of the 

report credited with convincing Congress that it was time to eliminate the ‘‘Texas 

Proviso’’—the Final Report of the Select Commission on Immigration Refugee Policy 

(1981). That bipartisan commission, chaired by Father Theodore Hesburgh, recommended that the United States close the ‘‘back door’’ to illegal immigration in 

order to keep the ‘‘front door’’ to legal immigration open. Its central proposal to 

amend current law was to impose civil penalties on employers who knowingly hired 

unauthorized aliens. The 16-member commission (which included four Carter Administration cabinet members, eight members of Congress, and four members of the 

public) had little trouble with this proposal, recommending 14–2 that the law be 

amended to include this rule. Citing the availability of U.S. jobs as the central ‘‘pull 

factor’’ in the illegal immigration equation, the Select Commission recommended removing the magnet of the U.S. employment market as central to discouraging unlawful immigration. While strong border enforcement mechanisms were undoubtedly 

important, many illegal aliens obtain lawful access to the United States through 

temporary visas, such as visitor and student status, and then overstay those visas 

to work and live in the United States. Border enforcement alone will never stop this 

form of unlawful immigration, but employer sanctions certainly could. 

The critical vote cast by the Select Commission was its narrow recommendation 

(8–7) of a ‘‘more reliable’’ mechanism to identify persons authorized to work in the 

United States, such as a counterfeit-resistant social security card. The policy logic 

of the proposal was strong: (1) in order for an employer to ‘‘know’’ whether he or 

she was knowingly hiring an unauthorized alien, a simple verification procedure 

should be established; (2) U.S. employers should not be expected to be fraudulent 

documents experts, (3) given the insecurity of current documents, a more secure 

38

work authorization system was necessary to avoid creating a gaping loophole in employer sanctions. The politics of the final element of the proposal—a more secure worker verification system—turned out to be critical. 

Senators Alan Simpson and Congressman Ron Mazzoli (D-KY) introduced a relatively faithful codification of the Select Commission’s recommendations on employer sanctions in 1982. The measure passed the Senate by an overwhelming vote, 

but was defeated in the final days of session in the House when an insurmountable 

number of amendments was proposed by bill opponents and the House leadership 

provided an open rule on the bill. The Senate-passed version of IRCA in 1982 relied 

on existing documents to prove work authorization, but required the Administration 

to implement a more secure worker verification system by a date certain. The legislation did not specify the particular method of security, but gave standards that the 

new system must meet. It also contained detailed protections against abuse of the 

database that might be created and required protection of the privacy of individuals 

contained in the database. If a secure card was the result of the more secure system, 

such a card could not be required to be carried on one’s person. 

The Simpson-Mazzoli bill would be considered in two additional Congresses before 

being enacted in 1986. In each subsequent Congress, opponents of a more secure 

worker verification system watered down this important component of the employer 

sanctions regime. Senator Simpson responded to Democratic and Republican critics 

of the secure verification system that, ‘‘there is no slippery slope to a national I.D. 

card or national I.D. system in this bill. This bill prohibits it. If a national I.D. system emerges, it will only occur because we have taken deliberate, specific steps toward creating it. I will oppose those steps.’’ The Immigration Reform and Control Act was enacted with an employer sanctions 

system that relied on current, admittedly insecure, documents. Reports were required of the Administration on how to make the system more secure. Ironically, 

the final version of IRCA contained detailed prohibitions on the creation of a more 

secure system—most in the form of ‘‘report to Congress and wait’’ requirements 

which are embedded within INA Section 274A. The Achilles Heal of employer sanctions—its insecure employment verification system—has its roots in Congress deciding to rely solely on a vast of array of insecure documents, issued by various federal, 

state and local governments, to determine U.S. work authorization. 

II. POST-ENACTMENT EXPERIENCE

Once enacted, the legacy Immigration and Naturalization Service took an imperfect statutory system and implemented it poorly. After a reasonably well-run public 

education and implementation program, the INS lost some political capital with 

U.S. employers by focusing on technical paperwork violations rather than on substantive violations of the ban on knowingly hiring unauthorized aliens. Congress 

later reduced the grounds for paperwork violations in the 1996 Act. 

The INS also failed to correct another early problem—the excessive number of 

documents that could satisfy the I-9 requirement. This situation was both confusing 

to employers and an incentive for the counterfeiting of the most easily circumvented 

documents. Congress reacted again in the 1996 Act by instructing the INS to reduce 

the number of documents that satisfy the I-9 form, but there were significant delays 

in that process and today the result is of uncertain value. 

Congress continued to receive support from immigration policy experts during this 

period on the essential role of employer sanctions in deterring illegal immigration. 

In 1994, the Commission on Immigration Reform (the ‘‘Jordan Commission’’) issued 

a report entitled U.S. Immigration Policy: Restoring Credibility, which addressed 

both employer sanctions and worker verification systems. As the late Barbara Jordan testified before the House Appropriations Committee in 1995:

Our second set of recommendations would reduce the magnet that jobs currently present for illegal immigration. We have concluded that illegal immigrants come primarily for employment. The Commission believes that we need 

to enhance our enforcement of both employer sanctions and labor standards. 

But, to make employer sanctions work, we must improve the means by which 

employers verify the work authorization of new employees. The Commission believes the most promising option is a computerized system for determining if 

a social security number is valid and has been issued to someone authorized 

to work in the United States. We are pleased that the Administration has endorsed our recommendations in this area, and we look forward to working with 

INS and the Social Security Administration on the design of pilot programs that 

will phase in and test this new verification approach. I urge this committee to 

provide the funding needed to develop the computerized system and implement 

the pilot programs.

39

One encouraging aspect of IRCA was the strong desire by most U.S. employers 

to comply with the I-9 requirement. I have represented a number of medium-sized 

and large employers in internal I-9 audits, and in their responses to agency audits 

or investigations, and I have been impressed by the near universal acknowledgement that employers should not knowingly hire illegal aliens and that employer participation in deterring unlawful employment is a reasonable concept. 

Unfortunately, the INS failed to capitalize on this attitude, treating many employers as adversaries rather than partners in deterring unauthorized employment. One 

example of this missed opportunity was the ‘‘Basic Pilot’’ voluntary employer 

verification system, enacted as part of the 1996 Act and inspired in part by the Jordan Commission recommendations. Under this program, participating employers 

were given computer-access to a portion of the INS alien-number and Social Security Administration social security account number databases. New employees would 

have to submit at least one of these numbers in order to satisfy the I-9 requirement, 

and the employer would have prompt feedback on whether the employment applicant was submitting a valid number, or a number that matched the name of the 

person to whom the number was issued. The meatpacking industry widely adopted 

participation in Basic Pilot, even though it was only available to companies with operations in at least one of only seven states, and the companies in this industry 

were initially satisfied with the additional capabilities and protections provided by 

the program. 

Indeed, the Basic Pilot program initially fulfilled two of the early promises of employer sanctions: to reduce the lure of U.S. employment to unauthorized aliens, and 

to reduce the need for immigration authorities to ‘‘raid’’ employer work sites. Changing worksite enforcement to primarily an auditing function, or to an electronic 

verification process, was a principal objective of the early proponents of employer 

sanctions. Unfortunately, the ‘‘good times’’ under Basic Pilot were short-lived. When 

it became clear to the unauthorized alien community that using another individual’s 

valid social security number would be detected by Basic Pilot, the response was to 

engage in a higher level of fraud: to assume the identity of someone else. 

In the late 1990’s, ‘‘true identity fraud’’ became the greatest threat to users of the 

Basic Pilot program. When the INS began worksite enforcement actions at the 

plants of meatpacking companies participating in Basic Pilot, the employers in this 

industry asked for access to the database of employees whom the INS suspected of 

committing identity fraud, so that the employers could deny them employment. Unwisely, the INS declined to provide this information and instead launched the illconsidered work site enforcement program known first as ‘‘Operation Prime Beef,’’

which it later renamed ‘‘Operation Vanguard.’’ The INS made ‘‘work site visits’’ to 

interview employees on their ‘‘identity fraud’’ list, and most employees on this list 

failed to show up and left their current employers—for other employers or other industries. Rather than deter unlawful immigrants from entering the United States, 

the INS had simply succeeded in chasing the unauthorized alien from one U.S employer to another—while alienating an employer community that had demonstrated 

its commitment to voluntary compliance. 

Finally, all evidence points to a comparatively low level of attention paid to investigating and prosecuting document fraud. One critical example is the INS decision 

to enter into a settlement agreement in which it agreed to cease issuing civil penalties for document fraud under INA Section 274C, added in the 1990 Act to enhance document-fraud enforcement. On the criminal side, there is scant evidence 

today of a coherent, coordinated effort between ICE and U.S. Attorney’s Offices to 

put the time, energy and resources necessary into detecting, indicting and prosecuting persons involved in the manufacture and sale of fraudulent documents. 

III. FUTURE PROSPECTS FOR EMPLOYER SANCTIONS

Some observers believed that the tragedy of 9/11 would change the political aversion to a more secure worker verification system. That has proven to be belatedly 

but partially true, in that Congress recently enacted and the President signed the 

REAL ID Act, the first significant reform of the employment authorization system 

since the Basic Pilot Program of 1996, and the first mandatory change since IRCA’s 

enactment in 1986. 

The REAL ID legislation requires States to meet certain minimum procedural requirements (such as confirming the identity and lawful immigration status of the 

applicant) before issuing a driver’s license, and to satisfy other minimum security 

requirements to ensure that the cards issued are counterfeit resistant. Given that 

State Drivers’ licenses are one of the principal documents used to establish identity 

on the employer sanctions I-9 form, this is a significant step toward addressing the 

40

insecure-documents loophole in employer sanctions. But substantial challenges remain. 

First, the States must implement the REAL ID standards in a prompt and effective fashion. The technology exists to do so, but it is unclear whether the political 

will in the 51 U.S. jurisdictions is also present. Second, the I-9 Form also asks for 

evidence of work authorization, which a State Drivers’ license does not demonstrate. 

The common document for demonstrating work authorization is a social security 

card. (A U.S. passport would satisfy both aspects of the I-9 requirement.) The social 

security card is today easily counterfeited, and we know from the Operation Vanguard experience that identity theft is a common scheme that can defeat use of the 

social security account number to deter unauthorized employment. 

So what should be done in response? One option would be to repeal employer 

sanctions because of their ineffectiveness. I believe such a response would be very 

unwise, as it would send a message to the world’s potential unauthorized immigrants that the United States no longer will discourage illegal immigration—as long 

as one can simply slip across the border or present enough fraudulent documents 

to a consular officer to obtain a visitor’s visa. However large the unauthorized immigration problem is now, repeal of employer sanctions at this point would certainly 

make the problem far worse. 

What then are the realistic reforms to employer sanctions that Congress and the 

Administration should consider? 

(1) Limit the number of documents that satisfy the ‘‘identity’’ aspect of the I-9 

Form to: (A) a State Driver’s license that conforms to the REAL ID law’s specifications (allowing for a reasonable transition period), and (B) a U.S. Passport. Given 

the 1996 Act amendments, the Department of Homeland Security should have the 

authority to achieve this objective by regulation. 

(2) Address the problem of insecure documents that satisfy the ‘‘work authorization’’ aspect of the I-9 Form—principally the social security account number database and card. Congress can help by considering legislated changes to the security 

of social security cards, and by revisiting the onerous ‘‘report and wait’’ requirements imposed on revisions to this card in INA Section 274A. There is legislation 

pending now in Congress to begin this process, and I respectfully suggest to this 

Subcommittee that such a task—though fraught with political turmoil—is worthy of 

your time and effort. 

The Department of Homeland Security can help by improving the effectiveness of 

the Basic Pilot program and utilizing it on a much larger scale. To improve its effectiveness, DHS must standardize its indicators that someone has stolen the identity 

of the proper holder of the account number. It must then create a reliable process 

when identity theft appears likely, so that employers using Basic Pilot are alerted 

and the individual submitting the number to satisfy the I-9 Form is given a chance 

to rectify the problem before being denied employment. I was told in 2000 and 2001 

that such an improvement to the Basic Pilot system was not possible, but I have 

not pursued the matter since. This would be a good question to ask of DHS officials 

today. 

To expand employer utilization of Basic Pilot, DHS must engage in a dedicated 

program of employer education and recruitment into the program, and work as true 

partners (rather than as adversaries) with the employers and employer organizations that participate. A recent amendment to the Basic Pilot program makes it 

available in all 50 states. The Administration should use this tool to increase employer participation by a substantial degree. 

(3) Increase the investigation and prosecution of document and identity fraud. 

A significant increase in ICE and U.S. Attorney’s Office resources should be dedicated to prosecuting documents vendors, document smuggling rings, and those who 

facilitate the theft of the identity of others, through the social security card or any 

other common document. This renewed focus needs to come ‘‘from the top’’—from 

the Secretary of Homeland Security and the Attorney General. It is simply unacceptable in light of current terrorist threats for the United States to allow its principal national documents to be subject to such widespread fraud. While Congress 

can review the sufficiency of current Sentencing Guidelines for these offenses, I believe its time is better spent dedicating appropriated funds to this mission and then 

conducting the oversight afterward to ensure that the enforcement initiatives occur. 

Even if the social security card remains an insecure document for a number of years 

to come, the goal of a concentrated investigation and prosecution effort should be 

to raise the black-market price of a fraudulent social security card or of a stolen 

identity linked to such a card to $10,000 or more. If that result is achieved, the incidence of document and identity fraud will decline sharply, and the benefits will 

inure not only to the employer sanctions system but to overall U.S. national security 

as well. 

41

In addition, the late 1990’s settlement agreement that ended the use of Section 

274C’s civil fines for document fraud should be re-examined, with a view toward its 

repeal. Every available tool, civil and criminal, should be used to combat those who 

would attempt to profit from the insecurity of our current documents. 

(4) ICE should dedicate additional resources to unauthorized employment. Until 

the recent supplemental appropriations bill was enacted, ICE was operating under 

a hiring freeze. It now needs to focus on the integrity of the employer sanctions system. My experience representing U.S. companies is that worksite enforcement actions are, with rare exceptions, not worth the expenditure of the resources. A fair, 

consistent system of I-9 auditing would help reinforce most employers’ current compliance with this requirement, and would also develop leads on pockets of noncompliance. And as mentioned above, document and identity fraud should be targeted with an all-out effort, at both the criminal and civil level. The effort should 

be undertaken with the knowledge that most employers comply or desire to do so, 

and that they should be partners, not adversaries, in the process. 

CONCLUSION. 

Employer sanctions is an important and reasonable enforcement regime to deter 

unauthorized immigration to the United States. The difficult policy questions arise 

when one attempts to implement it effectively. It has lost any enforcement priority 

that it ever might have had, and this fact should be recognized and corrected by 

the Departments of Homeland Security and Justice. I believe this hearing is a good 

step in encouraging such a change in attitude, and I commend you for holding it. 

I also thank you for inviting me to contribute my views on the topic and stand ready 

to answer any questions that you may have.

Mr. HOSTETTLER. Thank you, Mr. Hampe. 

Ms. Gordon. 

TESTIMONY OF JENNIFER GORDON, ASSOCIATE PROFESSOR 

OF LAW, FORDHAM LAW SCHOOL 

Ms. GORDON. Chairman Hostettler, Ranking Member Jackson 

Lee and Members of the Subcommittee, thank you for the opportunity to testify today. 

For the past 18 years, I have worked with low-wage immigrants 

and their employers in a context of employer sanctions, and from 

that vantage point I can say that sanctions have been an unequivocal failure. 

Congress had two principal goals in including employer sanctions 

in IRCA in 1986: deterring undocumented immigration, and protecting the jobs of U.S. workers. Sanctions have done neither. 

Since 1986, the undocumented population in the United States 

has grown from an estimated 5 million then to an estimated 10 to 

12 million today. There is no clearer evidence that sanctions are no 

deterrent to undocumented immigrants or their employers. 

With regard to the second goal, ironically, sanctions have not 

only failed to protect the working conditions of U.S. citizens and 

legal immigrants, but have contributed significantly to undermining them by handing a trump card to those employers who seek 

to maintain a vulnerable and exploitable workforce. Such an employer may simply ignore the requirement that undocumented 

workers complete I-9 forms at the time of hire, or may fill them out 

in a pro forma way. But if those workers complain about any aspect of their working conditions—wages below the legal minimum, 

no protection from hazardous chemicals, or a ban on discussion of 

unions in the workplace—they are suddenly told that unless they 

can provide the documents to fill out the I-9 form they will be fired. 

The fear this generates is intensified by the doubt employer sanctions have cast on whether employers will be penalized when they 

42

violate basic workplace laws with regard to undocumented employees. 

At the time IRCA passed, it was clear in most States and Federal 

circuits that minimum wage, health and safety and anti-discrimination laws, as well as the National Labor Relations Act, applied 

to workers who were illegally present in the country. IRCA’s own 

legislative history reaffirms the importance of this coverage. 

Although almost all courts and agencies continue to maintain 

that undocumented immigrants are protected by workplace statutes, in 2002 the Supreme Court in its Hoffman Plastics decision, 

insulated employers who fired undocumented employees in violation of the NLRA from monetary penalties. The Court cited 

Congress’s passage of employer sanctions as the primary reason for 

its holding. 

Although Hoffman was technically limited in scope, employers 

have used it repeatedly to intimidate those few undocumented 

workers who still dare to report sub-minimum wages and to demand better working conditions. 

The effect of this dynamic is the exact inverse of what Congress 

intended. Through sanctions undocumented immigrants have been 

pushed further underground, rendered ever more uncertain about 

whether they have rights, and ever more terrified to claim any of 

the rights to which they are aware they are entitled. Basic workplace rights are guaranteed to undocumented workers under U.S. 

law for the precise reason that to deny them those rights would 

make them unfairly attractive to employers, thus undercutting 

U.S. workers. But unless undocumented workers know that reporting violations will not put their jobs at risk and subject them to potential deportation, they will remain silent. Without their participation, lawbreakers in the underground economy are hard to detect 

and nearly impossible to convict. 

Employer sanctions have harmed U.S. workers in another way. 

Employers in immigrant heavy industries, wishing to avoid liability 

for sanctions, have shifted en masse to subcontracting in the wake 

of IRCA. Now predominant in such industries as agriculture, janitorial, landscaping and construction, subcontracting exerts downward pressure on wages in two ways. Contracts are put out to bid, 

encouraging contractors to offer the lowest possible price, which 

translates directly into falling wages. In addition, subcontracting 

introduces a middleman who takes a cut of the contract, further 

lowering the wages that workers receive. And of course, once subcontracting becomes the standard arrangement in any industry, its 

impact on wages affects all workers, documented or not, in that industry. Far from protecting U.S. workers, then employer, sanctions 

lower their wages and undercut their efforts to obtain jobs and improve working conditions. 

Instead of sanctions we need two things. One is an unequivocal 

statement from Congress that employers will be penalized for violations of workplace protections independent of the immigration status of the victim. The other is a new commitment to intensive and 

strategically targeted government enforcement of minimum wage 

and health and safety laws in industries and geographic areas with 

high concentrations of undocumented workers. Only through this 

sort of approach do we have a hope of addressing the exploitive 

43

working conditions and unfair competition that undermine the 

work opportunities, health and wages of workers throughout our 

Nation. 

Thank you, and I welcome your questions. 

[The prepared statement of Ms. Gordon follows:]

PREPARED STATEMENT OF JENNIFER GORDON

Chairman Hostettler, Ranking Member Jackson Lee, and Members of the Subcommittee: 

Thank you for the opportunity to testify regarding employer sanctions. I appear 

before you today as someone who has worked on issues surrounding undocumented 

immigrant work and employer sanctions since the program’s very inception. In 1987, 

my first job out of college was to educate Boston employers and employees about 

their responsibilities and rights under the just-implemented employer sanctions provisions of the Immigration Reform and Control Act. In that capacity, I spent two 

years visiting over 100 Boston-area employers as they struggled to comply with the 

new provisions. I then went on to Harvard Law School, and upon graduation founded the Workplace Project, a New York organization that among other goals seeks 

to enforce basic wage and safety standards in immigrant workplaces. My recent 

book, Suburban Sweatshops, explores the re-emergence of sweatshop work on the 

United States and discusses strategies to eradicate it. I am now on the faculty of 

Fordham Law School in New York, specializing in immigration and labor law. 

When Congress included employer sanctions in the Immigration Reform and Control Act of 1986, it had two principal goals: deterring undocumented immigration 

and protecting the jobs and wage levels of U.S. workers. After nineteen years, sanctions have proven an unequivocal failure on both fronts. Today, the undocumented 

population has grown considerably. And, ironically, sanctions have not only failed 

to protect the working conditions of US citizens and legal immigrants, but have contributed significantly to undermining them. Furthermore, sanctions have created a 

burgeoning black market in false documents, increased discrimination against legal 

immigrants and U.S. citizens, and created an undue burden for employers, who 

have been deputized against their will as agents of the Department of Homeland 

Security. 

The increase in undocumented immigration to the United States to its present 

level despite employer sanctions speaks for itself. In 1986, at the time employer 

sanctions went into effect, approximately 5 million undocumented immigrants resided in the United States. Today, the best estimate is that this country is home 

to between 10 and 12 million undocumented immigrants. There is no clearer evidence of the failure of sanctions to deter illegal immigration. 

What requires more explanation is the dynamic that has rendered employer sanctions the source of more, not less, competition for jobs between legal workers and 

their undocumented counterparts. While sanctions have put a considerable burden 

on responsible businesses, who according to an INS study spend over 13 million 

hours per year to comply with this law, it has handed a trump card to those employers who seek to maintain a vulnerable and exploitable workforce. An unprincipled 

employer wishing to hire undocumented workers may simply ignore the requirement 

that workers complete I-9 forms, or may ask new employees to fill them out but pay 

little attention to the quality and consistency of the documents offered. If those 

workers complain about any aspect of their working conditions, however—if they 

ask that their wages be raised to the legal minimum, or request gloves as protection 

from hazardous chemicals, or express an interest in joining a union, all of which 

are rights guaranteed to them under U.S. law for the precise reason that to deny 

them those rights would make them unfairly attractive to employers, thus undercutting U.S. workers—the employer remembers employer sanctions. The workers who 

have stepped forward are suddenly told that unless they can provide documents to 

fulfill the I-9 form’s requirements, they will be fired. 

This cycle is intensified by the doubt employer sanctions have cast on whether 

employers will be penalized when they violate basic workplace laws with regard to 

undocumented immigrants. At the time IRCA passed, it was clear in most states 

and federal circuits that minimum wage, health and safety and anti-discrimination 

laws, as well as the NLRA, applied to workers who were illegally present in the 

country. And the legislative history of IRCA states explicitly that ‘‘[i]t is not the intention of the Committee that the employer sanctions provisions of the bill be used 

to undermine or diminish in any way labor protections in existing law. . . . As the 

Supreme Court observed in Sure-Tan, Inc. v. NLRB, 467 U.S. 833 (1984), application of the NLRA ‘helps to assure that the wages and employment conditions of lawVerDate 0ct 09 2002 13:17 Oct 25, 2005 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\062105\21911.000 HJUD2 PsN: 21911
44

ful residents are not adversely affected by the competition of illegal alien employees 

who are not subject to standard terms of employment.’ ’’ Although most courts and 

agencies continue to maintain that undocumented immigrants are covered by workplace statutes, in 2002 the Supreme Court issued its Hoffman Plastics decision, 

which confirmed that undocumented workers were covered under the National 

Labor Relations Act but insulated employers who fired undocumented employees in 

violation of the Act from monetary penalties. The Court cited Congress’s passage of 

employer sanctions as the primary reason for its change of heart after Sure-Tan.

Although the Hoffman holding was limited in scope, employers have used it repeatedly to intimidate those few undocumented workers who still dare to report subminimum wages and to demand better working conditions. 

The effect of this dynamic is the exact inverse of what Congress intended. Undocumented immigrants have been pushed further underground, rendered ever more 

uncertain about whether they have rights and ever more terrified to claim any of 

the rights to which they are aware they are entitled. These rights are not just a 

matter of human dignity, although they are certainly that. They are the only force 

restraining a race to the bottom in which undocumented immigrants can be had for 

any price and under any conditions, thus making them a much more attractive 

workforce for unscrupulous employers, foreclosing job opportunities for U.S. citizens 

and legal residents, and dragging down wages and working conditions for all. If our 

minimum wage laws are to have any meaning at all, they must be reinforced where 

they are in peril, in immigrant-heavy workplaces. But unless undocumented workers know that reporting violations will not put their jobs at risk and subject them 

to potential deportation, they will remain silent. Without their participation, 

lawbreakers in the underground economy are hard to detect and nearly impossible 

to convict. 

This argument becomes clearer by analogy to other law enforcement situations. 

When government authorities need the cooperation of undocumented immigrants in 

times of serious threat to safety or national security, they make clear that those 

who come forward with information will not be reported to Immigration Control and 

Enforcement (ICE). Thus, when the Beltway sniper was terrorizing the DC suburbs 

in 2002, Maryland Chief of Police Charles Moose made a public promise that that 

any undocumented immigrant who came forward with information about the sniper 

would not be turned over to the INS. Similarly, recognizing that crime prosecution 

and prevention will only be successful if all city residents feel comfortable working 

with the police, the New York City Police Department and numerous others around 

the country have declared that they will not ask questions about immigration status 

of a witness or victim of a crime. In the same way, once we recognize that effective 

enforcement of basic workplace rights for all employees is the lynchpin in any strategy to protect the wages and working conditions of U.S. workers, it becomes clear 

that immigration enforcement must be taken out of the workplace. 

Social scientist Douglas Massey has documented additional negative labor market 

effects of employer sanctions. He notes that employers in sectors characterized by 

high levels of undocumented employment—such as agriculture, janitorial, landscaping and construction—shifted to subcontracting arrangements in the wake of 

IRCA in order to insulate themselves from the consequences of hiring unauthorized 

workers. Subcontracting exerts downward pressure on wages in two ways. Contracts 

are put out to bid, encouraging contractors to offer the lowest possible price in order 

to prevail. Since all of these are labor-intensive industries, falling contract prices 

translate directly into falling wages. In addition, subcontracting introduces a middleman where once employment was direct, and the middleman takes a cut of the 

contract. This cut further lowers the wages that workers receive. Of course, once 

subcontracting becomes that standard arrangement in a particular industry, it affects all workers in that industry, whether documented or not. Thus, increased subcontracting—a direct consequence of employer sanctions—has decreased the wages 

of U.S. workers. 

The idea of repealing employer sanctions is politically unpopular at the moment. 

On all sides, the current debate in Washington over immigration reform assumes 

that sanctions will either continue in place or be strengthened, for example through 

the addition of harsher penalties or a national i.d. card. To continue on this road 

is to trade short-term political gain for long-term disaster. More enforcement of the 

existing law, or the intensification of documentation requirements for workers or 

punishment for employers, will only increase the power of sanctions to drive undocumented workers underground. The problem with this law is not a matter of a few 

technical glitches amenable to a legislative fix. The premise on which sanctions are 

based is fundamentally flawed. 

Far from protecting U.S. workers, employer sanctions lower their wages and undercut their efforts to improve working conditions. Instead of sanctions, we need two 

45

things. One is an unequivocal statement from Congress that all workplace protections apply equally to documented and undocumented workers. The Supreme 

Court’s 2002 decision in Hoffman Plastics should be corrected through legislation 

that explicitly renders employers equally liable for the failure to obey the Fair Labor 

Standards Act, the Occupational Safety and Health Act, the National Labor Relations Act, and all of the other bedrock pieces of workplace legislation, independent 

of the victim’s immigration status. The other is a new commitment to intensive and 

strategically targeted government enforcement of minimum wage and health and 

safety laws in industries and geographic areas with high concentrations of undocumented workers. Only through such an approach do we have the hope of addressing 

the exploitative working conditions and unfair competition that undermine the work 

opportunities, health and wages of workers throughout our nation.

Mr. HOSTETTLER. Thank you, Ms. Gordon. 

The Subcommittee Members will now turn to questions. Mr. 

Stana, in your written testimony you revealed that an ICE policy 

memo prohibits ICE agents from engaging in worksite enforcement 

in restaurants and farms without prior approval. What is the basis 

of this policy, do you know? 

Mr. STANA. My understanding is that ICE headquarters sent 

that memo out to reinforce the idea that they wanted their resources focused on issues of national security. So to keep its agents 

from opening investigations in areas not connected to national security, they set up the critical infrastructure program, which focused attention to places like airports, nuclear power plants and so 

on. Locations can, however, ask for and get exemptions from that 

memo. We visited 12 locations in the course of our work, and in 

those 12 locations combined, we only found 5 or 6 exemptions. 

So what it has done, it has focused resources on the areas of priority in their strategic plan, but it has discouraged workforce enforcement. 

Mr. HOSTETTLER. This notion of the strategic plan and the place 

that employer sanctions worksite enforcement plays in it is a common theme. How has the Department of Homeland Security been 

doing with regard to critical infrastructure issues? 

Mr. STANA. Well, there are two major programs that I am aware 

of, Tarmac and Glow Worm, and in Operation Tarmac they have 

identified about 1,000 illegal aliens working in airports. They treat 

this as a worksite enforcement action in that if they are undocumented they will take enforcement actions which include possible 

deportation. So it has had some effect that way, but perhaps not 

as many terrorists as they thought they might identify have been 

acted upon. 

Mr. HOSTETTLER. Would you say that the dedication of resources 

and the return on the investment is substantial? 

Mr. STANA. Well, I think there is a policy decision here that ICE 

and DHS have made, that they have a limited number of resources 

and they are going to put them in the areas where they feel it is 

most prudent to put them. I do not think any of us want another 

9/11. However, on the other side of that, what it has done is it has 

taken resources away from worksite enforcement. In the late 

1990’s, we had 240 roughly FTEs devoted to this. Now there is— well, this year there is about 50, 65, depending on how you count 

them. So it has had an impact on ICE’s ability to undertake worksite enforcement activity. 

Mr. HOSTETTLER. I guess my question is, more clearly stated, 

with the concentration of resources to the notion of critical infraVerDate 0ct 09 2002 13:17 Oct 25, 2005 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\062105\21911.000 HJUD2 PsN: 21911
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structure worksite enforcement, are we finding a lot of problems in 

critical infrastructure? 

Mr. STANA. Well, in fact, there was an article in today’s newspaper and on the news about a nuclear facility, I believe it was a 

weapons manufacturing facility, where the Department of Energy 

IG found through its checks there were 16 illegal aliens identified, 

and that the normal I-9 process had not identified. 

So there is cause for focusing on these things, but it hasn’t found 

that many aliens, and it’s usually aliens working in areas where 

aliens are working in other areas, nonsensitive, such as construction and food service and whatnot. 

Mr. HOSTETTLER. Very good, thank you. 

Mr. Jeffrey, do you think that if there were credible deterrents 

in worksite enforcement, there would be a widespread reduction in 

illegal immigration? And if that is the case, if ICE concentrates on 

worksite enforcement and creates deterrents, many of its other 

problems with immigration enforcement, such as detention bed 

space and deportation might be drastically reduced, is that not correct? 

Mr. JEFFREY. I think in the long run I think there will be a deterrent effect. If you look at that list from the October report from 

the Social Security Administration Inspector General, the top 100 

employers that had filed the worst W-2s, and you assume there’s 

some correlation between those bad W-2s and the hiring of illegal 

aliens, which of course is something that hasn’t been demonstrated 

because DHS apparently is not investigating these companies. I 

think you see that year after year after year you have certain employers that are hiring large numbers of people that they can’t 

identify correctly by Social Security number. These have to be 

major companies if you look at the size of their payroll. That Illinois company paid more than $524 million to employees that it 

could not identify to the IRS or Social Security Administration by 

Social Security number for 5 years. 

It seems to me if a company like that, assuming that there is 

some hiring of illegal aliens there, were publicly exposed and were 

penalized that the public pressure on the corporate managers 

would force them to stop the practices that have led to the filing 

of the bad W-2s. If in fact it is the hiring of illegal aliens, those 

jobs will dry up. I think if you do that in a fairly focused manner, 

the message will get out that the jobs magnet is closing down in 

the United States. 

Mr. HOSTETTLER. Thank you, Mr. Jeffrey. 

The gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much. 

I would like to pursue the line of questioning, Mr. Stana, on this 

whole issue of resources. You know, we have had a battle about 

200 versus 800, 300 versus 800. The 9/11 Commission recommended I believe 800 ICE officers a year for the next 5 years. 

There are those of us, and many on this Committee, that have submitted amendments and continue to push and work for the higher 

numbers of ICE officers as well as others who are part of immigration enforcement as well as immigration services. 

So just again have me understand the breakdown of resources as 

relates to the large threat, the large concern of terrorism. And 

47

again, not to be redundant, you know, I do not equate immigration 

to terrorism, so I think the work of the Homeland Security Department, of which I am a Member of the Homeland Security Committee, really should be distinguished or distinguishable fighting 

terrorism versus the concern about immigration, whether it be 

legal or illegal. 

So are you suggesting that with the numbers we have now—and 

my remarks earlier indicated that we have not prioritized work as 

it relates to employer sanctions or enforcement. Is that what you 

are saying is a clear problem that we face today? 

Mr. STANA. Let me say this, that in almost every measure worksite enforcement is at about the bottom of the priority scale. In 

terms of number of agents devoted to the activity, it’s near the bottom. In terms of detention priority it’s near the bottom. 

We have testified, I have testified in the past that we need to 

have a more balanced effort between border enforcement and interior enforcement, and there are a number of people we have put 

over the years on the line of scrimmage, so to speak, on the border, 

less so in the interior. 

Let me also say though that in the context of worksite enforcement, simply putting another 100 or 200 or 300 agents on this likely would not make the major dent in the problem that having an 

effective employment authorization verification system would, and 

it might even be less resource intense. 

Ms. JACKSON LEE. Now, when you say that, would that mean 

that the individual comes with better documents and the employer 

still makes the determination, or would we have a central pooling 

place for people to funnel through, and then say these are available 

for hiring? 

Mr. STANA. There are a number of different models available, but 

what would happen is, is that the prospective employee or the employee would present documents to the employer stating their eligibility to work, and there are a number of documents that they can 

do that with now that would be pruned back. But this information 

would be sent to central databases at DHS and SSA. If it came 

back that the person was authorized to work, the employer would 

not have a worry of whether they are hiring illegal workers, and 

a sanctions regime could then reliably take place. If a person then 

knowingly hires someone not authorized, the ICE investigators 

would have a much better case to make for knowingly hiring. 

Ms. JACKSON LEE. Let me pose questions to Mr. Hampe and Ms. 

Gordon, and then I will listen to your answers. 

I am fascinated, Mr. Hampe, with your comments about the actual document fraud creator, and explore that a little bit more because I believe that that is the right track, and I said I would listed 

today for themes for legislative response, and I think that that is 

going in the direction of where we might go on going after those 

who are creating the documents, even though we might come up 

with a system of better documents. 

And, Ms. Gordon, brilliance on your part with respect to whether 

or not we even enforce, as we should for Americans, workplace protections, particularly the hourly wage, the minimum wage, et 

cetera, which unfortunately we have such uneven circumstances in 

different states. But would you explore again as well the value of 

48

really focusing on workplace conditions, because it is negative not 

only for those who are working undocumented, but it is also a negative atmosphere for those who are either documented and/or 

Americans. The other thing is the threat against documented workers if we do a full sweep of purging when you begin to talk about 

employer sanctions. 

Mr. Hampe, if you could talk more about how we would go and 

explore this, if you will, prosecuting the fraudulent document 

maker. And I would like to acknowledge that my colleague, Congresswoman Maxine Waters, has joined me this afternoon. 

Mr. HAMPE. Yes, Congresswoman. The question you asked does 

go to the heart of the concept behind employer sanctions, which is 

that employers would review documents that theoretically are reasonably reliable, and that therefore the system becomes self-enforcing, and one needn’t rely on constant workplace-worksite actions in 

order to effectively enforce the workplace ban. Even if Congress 

continues to grapple for a number of years, as it may well, on making current documents more secure, there are initiatives that can 

be taken by Congress and by the Executive Branch to make it more 

difficult for documents vendors to be effective. 

A targeted prosecution—investigation and prosecution campaign, 

relying on the cooperation of DOJ and DHS, a reduction by DHS 

in the number of documents that would satisfy the I-9 form, which 

has been a pending regulation for quite some time now, approaches 

such as that, which if they could, for example, drive up the black 

market price of a fraudulent Social Security card from however 

many hundreds of dollars it is now to, say, $10,000, then I think 

there would be a discernible reduction in the number of people who 

can afford to purchase that different identity and defeat the system. It wouldn’t be perfect and there still would be a need to resolve the structural problems, but it’s a good interim step. 

Ms. GORDON. Yes, thank you, Congresswoman. With regard to 

your question about workplace rights—workplace rights, and in 

particular the minimum wage, are really the only force that we 

have that is restraining a race to the bottom, a race in which the 

end result is that you can have an undocumented immigrant at any 

price and under any condition. And the only way to stop that is to 

really focus on what it takes, what does it take to enforce the minimum wage and basic health and safety laws and so on in the 

workplace? 

And what it takes is the cooperation of the workers who know 

the harms best, and those workers are undocumented workers. And 

when you look at any law enforcement effort, enforcing a law that 

recognizes—where the agency recognizes it needs the cooperation of 

undocumented workers, what you see is the agency takes immigration out of the equation. So you have Maryland Chief of Police 

Charles Moose, during the time of the Beltway sniper, coming forward and saying, ‘‘If any undocumented immigrant has information 

about this, you can come forward secure. We won’t bring you to immigration.’’ The same with police departments all around the country. 

And by the same logic, if you want to enforce workplace rights 

in the workplace—and that is the only way to protect U.S. workers 

49

and guarantee that the minimum wage will be respected—you have 

to take immigration enforcement out of the workplace first. 

Mr. HOSTETTLER. The gentlelady’s time has expired. 

Gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Stana, I was very much impressed by the chart that we saw 

on the screen a few minutes ago, and that is a part of your written 

testimony, and that is the chart that referred to the number of Notices of Intent to Fine. What an incredible commentary, unfortunately, on the current Administration and what would appear to be 

their unwillingness to enforce current law when it comes to employer sanctions. I had heard that there was not a single fine levied 

against an employer in 2004, despite the fact that there were 

roughly 7 million people employed illegally. Your chart seems to 

bear that out. There were only 3 Notices of Intent. Are you aware 

of any of those Notices of Intent actually resulting in a fine against 

an employer in 2004? 

Mr. STANA. No, I’m not, but it does take several months for the 

process to work to the point where they do get a notice to, or an 

intent to fine. 

Mr. SMITH. Right. But it does sound like my information may 

well be accurate, that not a single employer was fined in 2004? 

Mr. STANA. And if you look at the chart, in fiscal ’03 I think we 

had 100 and some, and those may have resulted from actions taken 

months or years before, so there was a lag time. 

Mr. SMITH. Let me ask you, Mr. Stana, and also Mr. Hampe, 

what conclusions you might draw from the Government’s inaction 

or unwillingness to levy fines against employers who are breaking 

the law? 

Mr. STANA. Well, I think there’s a couple of things that I would 

say. First, I think there’s a certain dispiritedness among ICE 

agents that when they do take worksite enforcement action, the actions don’t result in much because fines are reduced in the negotiation process, or if they do take aliens out of the workplace there’s 

not enough detention space and they’re told to appear some months 

later and, and they find another job in the meantime. 

Also, I think it demonstrates to some degree a lack of political 

consensus on how to deal with this issue. One of the locations, one 

of the 12 we went to, the agent in charge told us that there’s a 

rumor going around in his particular city, a large city, of an impending employment action on the part of ICE, and even though 

it wasn’t true, he had different delegations calling his office, either 

saying, yeah, you know, this is—we’re all behind it, or other delegations calling, saying, this isn’t what you should be doing. 

And so in that kind of environment, without a clear signal, 

they’re really not sure which way to go. 

Mr. STANA. They can always enforce the law. 

Mr. SMITH. That is true. 

Mr. Hampe, what conclusions do you draw from the Government’s inaction, and furthermore, based upon your 22 years of experience with the issue, Do you think the Government’s inaction is 

actually increasing illegal immigration? 

Mr. HAMPE. Let me take the second one first because I think the 

answer to that is pretty clearly yes. However susceptible to defeat 

50

the employer sanction system is because of insecure documents, the 

fact that there is no attention being paid by ICE whatsoever to the 

entire employer sanctions regime, which we can include, say, I-9 

audits, document fraud prosecutions and worksite enforcement, is 

certainly sending the message that if someone can get past the consular officer for a visa or past one of the U.S. borders, then they’re 

unlikely to be detected. 

I do believe that failure to enforce—to issue Notices of Intents to 

Fine, my understanding is, given the low levels of ICE personnel, 

is that they tend to desire to go after big enforcement actions, 

which would suggest go after large employers. Well, the truth is 

today that large employers tend to have gotten more sophisticated, 

and they have an I-9 process that would show that they did rely 

on documents presented to them which reasonably on their face appear genuine. Therefore, they’re not legally liable. 

So all roads lead back to the insecure document, I think in that 

sort of situation. 

Mr. SMITH. Thank you, Mr. Hampe. 

Thank you, Mr. Chairman. 

Mr. HOSTETTLER. The Chair now recognizes the gentlelady from 

California for 5 minutes. 

Ms. WATERS. Thank you very much. Mr. Chairman, and Members, this is not as complicated as many of us would make others 

believe. The simple fact of the matter is we have illegal immigration, an Administration that talks out of both sides of its mouth, 

and little or no enforcement. It seems to me that there is no will 

or desire, as has been demonstrated, for employer sanctions. We 

simply do not wish to fine employers or to make them accountable. 

If we had enforcement and if we had a system by which to do that, 

we could stem the illegal immigration problem. 

I believe that what was demonstrated about the number of companies that, well, the lack of enforcement and the lack of sanctions, 

and the lack of making these employers accountable is just, I mean 

it’s blatant. It’s just not there. I can’t believe that in the United 

States of America we can’t set up systems by which to get this 

done. If you tell me that the documents are all left in the workplace so that employers can use them to basically intimidate undocumented workers when they began to speak out about lack of 

proper wages and conditions, then why don’t we do something 

about that? Why don’t we have a central place in cities or counties 

where the employers have to file these documents under penalty of 

perjury? 

It’s not good enough to say, I thought, or I guessed, or it’s almost. 

I think that we should have criteria, requirements that the employers could depend on, and I think that we can do that. So there’s 

not a will to do this. 

If you take a look at the industries where they are most needed, 

then I think we can find out who’s protecting these employers. We 

know what’s happening in the agricultural industry. We know that 

this Administration attempted to come up with a plan by which to 

have workers come in, I guess at the height of agricultural seasons, 

to do the work, and I don’t know what they planned on doing with 

them afterwards, sending them back or giving amnesty or working 

out some kind of program where if you have worked for so many 

51

years you’ll be able to get citizenship. But we just aren’t doing anything. I mean nothing is being done. 

So we can hold these hearings all we want, and many of the 

hearings I think are very valuable, but now, they have become redundant. We know what we have to do is not being done, it’s not 

in the best interest of certain industries to stand the wave of undocumented. 

I was in one of our cities in California, spending a few days. I’ll 

tell you what city it was, Palm Springs. Everybody who works 

there, you know, appears to be Latino. I don’t know whether 

they’re documented or undocumented. I hear the rumors down 

there about who they are or who they’re not, but I suspect that 

that city does not want to do anything about illegal immigration or 

undocumented workers, because, you know, who would do the work 

for all those tourists that are coming in there? 

So I mean we either—we can’t have it both ways. We’re either 

going to have to decide that we’re going to stem the tide with employer sanctions, and we’re going to have to come up with a program by which some recognition is given to some folks who have 

been in, you know, the United States over a long period of time and 

have families that have grown up here. We’re going to have to do 

something. We’re going to have to come up with a program and a 

response that recognizes all aspects of the issues and try and do 

the right thing. 

So with that, I have no questions. They can’t say anymore than 

they’ve already said. We know what it is, and that’s it. So I yield 

back the balance of my time. 

Mr. HOSTETTLER. I thank the gentlelady. 

The Chair now recognizes the gentleman from California, Mr. 

Issa, for 5 minutes. 

Mr. ISSA. Thank you, Mr. Chairman. At my own peril, I associate 

myself with the gentlelady from California. I think that she’s hit 

on something, which is this is deja vu all over again, again, again, 

again. One of our challenges here today is, are we hearing what the 

problem is? Yes. Is it the first time we’ve heard any of it? No. As 

a matter of fact, the only thing that I found surprising was Ms. 

Gordon’s statement that basically in a failed system you can blame 

everything as ineffective, including employer sanctions, even 

though substantially there aren’t any. I found that to be new. I 

don’t happen to agree with it, but I did find it to be new. 

My question for Mr. Stana, by the way, what year did you graduate from Kent State? 

Mr. STANA. 1972, and a Master’s in ’76, with 2 years as a draftee 

in between. 

Mr. ISSA. And I never saw you while I was driving campus bus 

during that period of time. I’m wondering what two alums—how 

we missed each other. Only 28,000 of us there though. 

Mr. STANA. Yeah. 

Mr. ISSA. The questions I’d have for you, certainly in the testimony it becomes obvious that ICE does not—cannot live up to its 

priorities. In the INS 1999 strategy paper, the INS claimed that its 

strategy is 5 major principles in order of priority. First, identify 

and remove criminal aliens and minimize the recidivism. Second, 

52

deter, dismantle and diminish smuggling or trafficking of aliens. I 

won’t even get to the next three. 

The U.S. Attorney in San Diego has set up criteria that requires 

multiple felonies before she will prosecute a smuggler. There is no 

criminal alien removal program unless they are already incarcerated, and then of course they are not removed to Federal prison, 

they’re kept in State prison, and in many cases they’re not picked 

up at the end of their term. 

In light of that, my question to you is, should this Committee 

and should this Congress, considering fully breaking off INS and 

ICE and all these other agencies into separate immigration only 

departments, meaning not for the war on terror, and organizations 

that continue to do the war on terror and drugs and all these other 

things? And I ask that question because it now occurs to me that 

no matter how much money and no matter how the instructions 

are and no matter what they write in their own white papers, that 

agencies will simply fall back into anything except dealing with 7 

million illegal workers and 11 million illegal residents. 

Mr. STANA. Going back into the mid to late ’90’s, there was a lot 

of frustration on activities and inactivities of INS dealing with interior enforcement. And I have testified before this Subcommittee on 

several occasions on some of the issues you’ve raised, you know, 

criminal alien removal and so on. When the Department of Homeland Security was created, the only agency that was specifically 

abolished was INS, and I think that was a reflection of the frustration. 

There are a number of different ways to attack this, and I think 

it ultimately boils down to a policy issue. If the Congress would 

like to reassemble an immigration agency, or at least a component 

of DHS, there are certainly lots of good reasons to do it. In creating 

DHS, and in the aftermath of 9/11, the goal was to make sure 

something like that did not happen again. And therefore, most of 

the immigration activities flow from the overall strategic plan to 

deter and detect terrorism. You can see what the numbers show, 

what has happened to some of the more traditional INS activities. 

They have been downplayed or at least morphed into antiterrorism 

events. 

And so what I would say is, is that’s a decision that you would 

have to make, but it’s clear that what’s happening now is not 

geared to those traditional interior enforcement programs. 

Mr. ISSA. Thank you. One question is more than enough in this 

case. 

Thank you, Mr. Chairman. Yield back. 

Mr. HOSTETTLER. Thank the gentleman, and I commend the gentleman for his line of questioning with regard to the focus of immigration law enforcement. 

The Chair now recognizes the gentleman from Iowa, Mr. King, 

for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I appreciate the testimony, 

and however many times I hear it, I don’t get to this point where 

I just think there’s nothing we can do. It’s a redundant verbal exercise. I think there are many things we can do, and I think every 

time any of us speak up to the issue, it helps move it in this counVerDate 0ct 09 2002 13:17 Oct 25, 2005 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\062105\21911.000 HJUD2 PsN: 21911
53

try, and it might even help the President get more conviction on 

enforcement of our immigration laws. 

Firstly, Mr. Stana, you testified about 2,300 employers have used 

the Basic Pilot Program. I would assume—is that in this calendar 

year basically? 

Mr. STANA. That’s the number who are subscribed now. 

Mr. KING. Okay. And—but that—and I notice as I looked through 

your testimony, I didn’t see—that doesn’t really indicate how many 

hits there are or how heavy the usage might be on an overall numbers basis, whether they’re large employers or small? 

Mr. STANA. We can get the information for you. 

Mr. KING. I’d be curious. And maybe you just have a judgment 

answer that would answer my curiosity, but is the software large 

enough? Is the technology in place well enough? Are there restrictions, the fraudulent use of documents and the DHS delays in entering the data, or is it software and technology? 

Mr. STANA. If the Basic Pilot Program were to be mandatory, and 

it would have to expand to accommodate all the employers in the 

country, the millions of employers in the country, a number of 

things would have to be done. You know, they have to expand the 

technology. You have to put the number of people who actually 

verify the documents in the secondary steps, you have to increase 

that number. But you’d also have to find some different way to pay 

for it. Right now this is paid through the fees that are paid through 

applications, and when the State DMVs query the system for the 

checks that they make. So there’s not a lot of money to expand it. 

In fact, if maybe several thousand more employers were added 

to the 2,300, that would be the limit with the current system. 

Mr. KING. Thank you, Mr. Stana. And I wonder also if the utilization goes up incrementally we’ll be able to adapt to that; if we 

did this mandatory as a drop-dead date, then chances are we could 

have a system that could melt down around us? 

Mr. STANA. Yeah. We’d have to be careful how quickly we expand 

it. 

Mr. KING. Thank you. We may need some advice on that. 

I turn to Mr. Jeffrey, and I think you brought some information 

before this Committee that has been something that I hadn’t at 

least noticed that I had seen before in my piles of paperwork, and 

I’d look at it from a bit different perspective. 

Although you sorted this list, or at least brought the largest number of dollars up to the top, the Illinois employer with $524 

million, almost $525 million in—I call them ‘‘no match wages’’—out 

of 5,454,000,000 so 9.62 percent. And then as I look down through 

on that percentage on the right-hand column I come quickly to item 

No. 13, California employer, almost 71 percent of those employees 

are no match. One might presume that the vast majority of those 

71 percent are illegals. And then I go to employer No. 22, page D2, 

70.76 percent no match, $86 million out of $121 million. Next page 

over, D3 toward the bottom, 75.53 percent of those wages paid out 

in no match. 

We’re in a technology day and age, and how hard would it be to 

go to a company like that and step in and apply employer sanctions 

given the odds that if 7 out of 10 or 71⁄2 out of 10 that are there 

right now as we speak are there illegally? 

54

Mr. JEFFREY. I think Congress ought to ask Homeland Secretary 

Chertoff why he isn’t sending ICE agents to these companies, why 

he isn’t demanding the names and why he isn’t sending ICE 

agents. I think it’s just simply inexplicable. You know, if you look 

at—there’s the argument that these employers might be accidentally hiring these people who they don’t know their Social Security 

number. Five years in a row, 131,991 W-2s they file with the Federal Government that are not accurate. I don’t believe it. 

But there’s another reason I’m skeptical about it, if you look at 

the reports of the Social Security Administration’s Inspector General, and that the Government Accountability Office has done, 

about this Earning Suspense File. Although the bad W-2s are focused in particular industries that are somewhat predictable, 

they’re also focused in certain States, particularly in California and 

Texas and Illinois. And apparently not all employers in those industries in which the bad W-2s are concentrated are problem employers for filing these bad W-2s. It seems that there are particular 

employers that tend to do it, tend to do it repeatedly. 

And then there are other things, Congressman, that the Government Accountability Office talks about. For example, many employers, as I think the Chairman mentioned, file multiple W-2s in the 

same year with the same Social Security number. Can they not 

pick that up? 

So I think we need to have, we need to have a Federal investigative authority that goes to these corporations on this list, finds out 

exactly what’s going on, and if the evidence shows that the corporate managers have knowingly hired illegal aliens, if that’s what 

the evidence shows, then the law should be brought to bear against 

them. 

Mr. KING. $11,000 per employee at the max. 

Mr. JEFFREY. Whatever the law says, it should be brought to 

bear against them. 

Mr. KING. Thank you, Mr. Jeffrey, appreciate your testimony. 

I yield back. Thank you, Mr. Chairman. 

Mr. HOSTETTLER. The Chair now recognizes the gentleman from 

California, Mr. Gallegly, for 5 minutes. 

Mr. GALLEGLY. Thank you very much, Mr. Chairman. 

Ms. Gordon, I tell you, I couldn’t agree with you more on, on your 

statement that employer sanctions under IRCA have failed dramatically, failed, I guess, as much as anything could fail. My interpretation of that is, in the absence of—it’s not very easy for something to succeed if you’ve never implemented it. 

One of the things that’s happened—and I hope I understood your 

testimony correctly—that all too often legal immigrants or American citizens sometimes get painted with the same brush as illegals 

on the job site. Would you say that’s not correct? 

Ms. GORDON. I would say that’s partially correct, although my 

point was that when wages go down because of unfair competition, 

they are affected equally. 

Mr. GALLEGLY. Would you say the best way to deal with that as 

an officer of the court and as an advocate of the rule of law, that 

we should enforce the law and aggressively remove all of those that 

have no legal right to be in this country under the employer sanctions law that are working here illegally? 

55

Ms. GORDON. As an officer of the court and an advocate dedicated 

to the rule of law, I would say that a focus on workplace rights enforcement is the best way to ensure that the rule of law is respected——

Mr. GALLEGLY. Meaning remove them from their jobs? 

Ms. GORDON. No. Meaning enforce the minimum wage, enforce 

basic health and safety protections, therefore remove the incentive 

for employers to break the law with regard to these workers. 

Mr. GALLEGLY. But if the workers are working there illegally, 

should they or should they not be removed? 

Ms. GORDON. It’s my opinion that the best way to deal with problems created by the presence of undocumented immigrants is to 

focus on the enforcement of basic workplace laws, that a focus on 

removal——

Mr. GALLEGLY. Meaning——

Ms. GORDON. —a focus on bringing immigration enforcement into 

the workplace, inevitably undermines the very goals as intended to 

protect——

Mr. GALLEGLY. If someone is driving 100 miles an hour down the 

freeway, should you stop that person and tell them not to drive 100 

miles an hour anymore? 

Ms. GORDON. If we’re just talking about the freeway, I would 100 

percent——

Mr. GALLEGLY. If they are working illegally, should they be denied access to work, continue to work illegally? 

Ms. GORDON. It would be my point that if that is your ultimate 

goal, the way to go about it is not through employer sanctions. 

Mr. GALLEGLY. No. Ma’am, if you’d please just answer the question. Do you believe that someone that is working illegally in this 

country under our laws, should they or should they not be denied 

the right to work? Yes or no. 

Ms. GORDON. I would say that if that is the goal that you 

seek——

Mr. GALLEGLY. Obviously, the——

Ms. GORDON. —there’s only one way to achieve it. 

Mr. GALLEGLY. I wish—I guess I’m not articulate enough to get 

a straight answer, and my time is expired, and I can’t get a simple 

yes or no. Those are difficult answers. I yield back. 

Mr. HOSTETTLER. Thank the gentleman. 

The Chair now recognizes the gentleman from Texas, Mr. 

Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. GALLEGLY. Is that correct? Did my time never start? I just 

thought it was taking me longer to get a yes or no answer than 

was necessary. Could I have a couple of minutes, because my time 

really didn’t expire? 

Mr. HOSTETTLER. I believe so. I saw the red light. I apologize to 

the gentleman from California, and the gentleman is recognized. 

Mr. GALLEGLY. Maybe Ms. Gordon was pushing other buttons 

over there. [Laughter.] 

Mr. Jeffrey, we understand—and maybe you could correct me if 

I’m wrong—that according to the Social Security service there is 

somewhere in excess of 10 million Social Security cards that are in 

56

use today where the name and the number does not match. Are 

you aware of that number? 

Mr. JEFFREY. Social Security, I am not, sir. 

Mr. GALLEGLY. Well, according to the Social Security service, my 

staff has received information that they do have in excess of 10 

million Social Security cards where the name and number does not 

match, which means that there is an inconsistency at best, knowing that there is a large percentage of those are likely counterfeit 

or not legitimate cards. And as I believe it was Mr. King mentioned, some employers that have as many as 70 percent of the Social Security numbers that they’re using that are not matched. 

Would it not be a fairly simple process—or maybe Mr. Stana 

could better answer this—that the Social Security service advise 

the employers? At one time I understand they were doing this aggressively, but for some reason just in the middle of the night this 

procedure stopped. 

Mr. Stana, maybe you would be the one to answer. Why could 

they not advise the employer that we have a list of names and 

numbers that don’t match? You have 10 days to send us the numbers to see if maybe it was a typo or something, and in the absence 

of being able to clarify it, you’re notified to terminate that employee 

immediately. 

Mr. STANA. Well, they should be doing that as part of the I-9 investigation process. 

Mr. GALLEGLY. Are they doing that? 

Mr. STANA. I don’t know how well they’re doing it. They should 

be, they should be doing that. 

Mr. GALLEGLY. Could you get a report back to this Committee 

letting us know what the status is on that, how many notification 

letters went out in the last 12 months. I’d also like to know, out 

of that 10 million last year, how many people were deported as a 

result of their illegal status working in the country? 

Mr. STANA. Okay. 

Mr. GALLEGLY. Mr. Chairman, that probably used my full 5 minutes. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the gentleman from Texas for 5 minutes, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Professor Gordon, I appreciate your being here today, and obviously you’re here because of some expertise and your training and 

background. So I’ll ask you, in your opinion, should illegal aliens 

be hired to work in the United States? 

Ms. GORDON. In my opinion, the United States has a very complicated relationship with undocumented immigration, on the one 

hand inviting it in many ways——

Mr. GOHMERT. Professor Gordon, pardon my judicial background, 

but I asked you a direct question. I asked, in your opinion should 

illegal aliens be hired in the United States to work? Yes or no. If 

you cannot answer, then say, ‘‘I cannot answer.’’ If you can, then 

answer yes or no. 

Ms. GORDON. If the question is what does the law permit, the 

law——

57

Mr. GOHMERT. The question was, in your opinion should illegal 

aliens be hired in the United States, yes or no? In your opinion, 

please answer. 

Ms. GORDON. My opinion is it’s against the law. 

Mr. GOHMERT. In your opinion, should illegal aliens be hired in 

the United States? 

Ms. GORDON. In my opinion it’s against the law and it’s too complicated a question for me to answer with a yes or no. 

Mr. GOHMERT. Okay. So you know you’re discounting everything 

that you have said by being unable to answer a direct question. Do 

you realize your credibility is shot when you cannot answer a direct 

question? 

Ms. GORDON. With all due——

Mr. GOHMERT. Is it too complicated for you to answer? It’s a very 

simple question. In your opinion, in your opinion, should illegal 

aliens be hired in the United States? 

Ms. JACKSON LEE. Mr. Chairman? 

Mr. GOHMERT. And that means if there are exceptions, the answer would be yes. If there are not, then you can say no, but you’re 

saying it’s too complicated for you to answer. Is that correct? 

Ms. GORDON. I’m saying the situation that has led to the immigration situation we are in is a very complicated one, and if you 

give me the time I would be very glad to give you an answer. 

Mr. GOHMERT. I gave you the time. I’ve given you a great deal 

of my time to answer yes or no. You’ve been unsuccessful, and as 

far as to this individual on this Committee, you have blown your 

credibility because you cannot—— Ms. JACKSON LEE. Mr. Chairman, Mr. Chairman, I think the witness should be given the time to answer the gentleman’s question. 

Mr. GOHMERT. I did not yield, and I have a right to have a question——

Ms. JACKSON LEE. I understand, but——

Mr. GOHMERT. —answered and it was—— Ms. JACKSON LEE. —abuse of witnesses is—seems to be the trade 

of this Committee, and I don’t think this witness should be abused. 

Mr. HOSTETTLER. The time belongs to the gentleman from Texas. 

Mr. GOHMERT. I would point out to the Chairman that this questioner is being abused by saying that I’m abusive. So all I was trying to get was a rather straightforward answer, yes or no, and 

I——

Ms. WATERS. Well, she said she wouldn’t give it to you, so you’re 

badgering her. [Laughter.] 

Mr. HOSTETTLER. The gentleman yields to the gentleman—the 

gentleman’s time——

Mr. GOHMERT. Obviously, I’m being badgered because I tried to 

get a yes or no answer, and I appreciate the condemnation when 

I can’t get an answer. 

But please know, when you ask a direct question, I will support 

you in trying to get a direct answer—— Ms. WATERS. If the gentleman will yield, I will—— Mr. GOHMERT. —because I have that much respect for you and 

the process. 

Ms. WATERS. But if you can’t get it, you can’t make her give it 

to you. 

58

Mr. HOSTETTLER. The time belongs to the gentleman from Texas. 

The time belongs to the gentleman from Texas. 

Ms. WATERS. There is a point that you badger. 

Mr. GOHMERT. Thank you very much, Mr. Chairman. 

All right. Now then, let me see if I can get a question answered. 

Mr. Stana, if I said 2,000 Border Patrol agents hired today and 

1,000 employer enforcement agents hired this very day, how long 

would they be able—before they would be able to actually start 

working in their respective areas? 

Mr. STANA. For the Border Patrol agents, I believe that’s about— if you hired them today and they passed all the physicals and the 

other checks, the training itself would be, say, 3 to 4 months. Interior, roughly the same amount of time. 

Mr. GOHMERT. Thank you. I’m curious. I’m asking about the 

database that ICE has—of course going back to the INS days—

what would you say the status of the database is? Is it good? I keep 

hearing reports from individuals that it is not what it should be, 

some bad information that’s never been corrected. What’s your 

opinion? 

Mr. STANA. Within the last year or so, they’ve transferred their 

data into the former, the Legacy Customs text system. So the INS 

data is beginning to go away. And that’s why when you look at 

charts like the ones you see here with the lines going down, the 

general trend is the same, but trying to get the exact numbers requires some interpretation. 

The old INS data had some difficulties, and we’ve reported on 

that before. 

Mr. GOHMERT. Thank you. And just so that I can explain myself, 

when you’re asking questions that will give you answers about a 

witness’s credibility, then it is important to find out what that witness thinks about a given area. And the only badgering of a witness occurs when the answer is forthcoming, but never in judicial 

proceedings is it badgering a witness to continue to get an answer, 

a direct answer to a direct question. It’s only seeking credibility information, and I got the credibility information. 

Ms. JACKSON LEE. Would the gentleman yield for a moment for 

an inquiry? 

Mr. GOHMERT. My time has expired. 

Mr. HOSTETTLER. The gentleman’s time has expired. The Chair 

now recognizes the gentleman from Arizona for 5 minutes. 

Mr. FLAKE. I thank the Chairman. 

Mr. Hampe, with regard to the ’86 law, you had a hand in writing that I understand. 

Mr. HAMPE. Yes. 

Mr. FLAKE. Was there a thought at that time that we would perhaps need additional workers that weren’t in the country and 

weren’t part of the amnesty that was given at that time? Why 

wasn’t that written into the law, some kind of process for additional worker visas beyond what we already have? 

Mr. HAMPE. Congressman, it certainly was, it was probably the 

most difficult issue that caused IRCA to pend for three Congresses 

before it was enacted. And the ultimate version—or let me step 

back. The reason IRCA—the principal reason IRCA was not enacted in the 98th Congress was the existence of competing guest 

59

worker systems in the Senate and House bills, and the Senate bill 

had a very generous agricultural guest worker system that was not 

acceptable to the House. And so when IRCA was finally enacted in 

the 99th Congress, the solution was the SAW program, which was 

sort of an amnesty in the agricultural sector. 

So there was an awful lot of attention paid back in the ’80’s to 

temporary guest worker issues. It proved to be very complicated, 

and you know, I think there was an uncertain result as to did 

SAW, did the SAW program satisfy those needs? 

Mr. FLAKE. Well, given the fact that we have anywhere between 

10 and 15 million illegals here now, it would suggest that maybe 

there wasn’t a sufficient program for new flows of legal workers. 

Just along those lines, does it follow that any, any solution we 

find to the current crisis, if we want to return to the rule of law 

and actually enforce what we have, what does history suggest that 

we need to recognize in terms of the need to provide for the flow 

of additional workers? 

Mr. HAMPE. That’s a very good question. I think I would flip it 

just a little bit and say political history suggests to me that you 

probably will not be able to enact a large-scale guest worker program without the assurances that either employer sanctions or 

something like it will ensure that the entire flow from this point 

forward is lawful. Otherwise, many would view another guest 

worker program as simply a magnet for yet again more unauthorized migration. 

Mr. FLAKE. I could not agree more, and that is why the legislation that we’ve proffered already has the enforcement, but it also 

recognizes we’re going to need significantly more workers than we 

have right now, and it’s just, it’s unreasonable to enforce a law that 

says we’re done, we don’t need any more new workers, like we did 

essentially in 1986. I would suggest that’s why we’ve had such a 

problem here in terms of legal flows, we simply didn’t recognize 

we’ll need more workers, and I don’t think that we ought to make 

that mistake again. 

I appreciate the time. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now informs the Subcommittee that we’ll go to a second round of questions. I myself have several more questions. 

First of all, before I begin my questions, I want to refer to a comment made by you, Mr. Stana, that was so on point, and I know 

sometimes I forget that I want to definitely give a supportive voice 

of this entire Subcommittee and the entire Congress. You talked 

about a, ‘‘dispirited attitude on the part of ICE agents’’ in a quote 

earlier. While we talk about policy in this Subcommittee, and resources, we all uniformly in a bipartisan fashion support and are 

very appreciative of the hard work that our ICE agents, our folks 

at CBP and ICE do for our national security and enforcing the law. 

We are very much appreciative of them and do not in any way wish 

to downplay the importance of the work they do. 

That being said, Mr. Hampe, I appreciate your written testimony. It gives a very interesting and succinct history of the issue 

of employer sanctions, especially with regard to the work of the Select Commission on Immigration Policy Reform in 1981, and the 

fact that, ‘‘The critical vote cast by the Select Commission was its 

60

narrow recommendation, 8–7, of a more reliable mechanism to 

identify persons authorized to work in the United States, such as 

a counterfeit-resistant Social Security card.’’ You go on to recount 

some of the testimony, some of the discussion by Senator Simpson, 

when he said, ‘‘There is no slippery slope to a national ID card or 

a national ID system in this bill. This bill prohibits it. If a national 

ID system emerges, it will only occur because we have taken deliberate specific steps toward creating it. I will oppose those steps.’’

Now, if you will humor me, the American Heritage Dictionary, 

Second College Edition, defines the phrase ‘‘ID card’’ as ‘‘A card, 

often bearing a photograph, that gives identifying data’’—if I can 

editorialize, a Social Security number—‘‘as name, age or organizational membership about an individual.’’

Would you essentially agree with that definition, that an ID card 

is a card bearing—often, not always, but often bearing a photograph, identifying data as name, age or organizational membership 

about an individual? 

Mr. HAMPE. A lawyer never quibbles with a dictionary. 

Mr. HOSTETTLER. I appreciate it. Secondly, if that card was 

issued by a national government, would you not suggest that that 

would be a national ID card? 

Mr. HAMPE. Certainly. 

Mr. HOSTETTLER. Thank you. You also speak in your written testimony about—and you elaborate on this very well—the fact that 

after the notion of true identity fraud became the greatest to users 

of the Basic Pilot Program that employers in the—I believe it was 

meat packing industry—asked for access to the database of employees whom the INS suspected of committing identity fraud so that 

the employers could deny them employment. 

Could you elaborate on that and maybe suggest what we can do 

to reform the Basic Pilot Program to allow such access? 

Mr. HAMPE. Yes, Mr. Chairman. I’ll be happy to. And I believe 

the GAO testimony referred to that present problem in the Basic 

Pilot system right now, which is it detects invalid Social Security 

numbers, and it detects mismatches between a name and a number. But if someone has engaged in identity theft and has a valid 

name matching a valid number, then the Basic Pilot Program, at 

the moment, cannot detect such an employee. 

The SSA and the legacy INS, back when I was very involved in 

this issue, said that they had certain indicators they came up with 

that suggested the existence of identity fraud, and they were two 

addresses—address changes—two addresses for the same Social Security number. A variety of other factors. 

But they weren’t absolutes, but when you stacked all the factors 

up, they allowed the INS back then to decide that it was worth 

issuing interview letters to individuals meeting this profile in the 

meat packing industry, which, in 1999 and 2000, was the subject 

of an enforcement action specific to that industry. 

So the meat packing industry, which is one of the principal industry participants in Basic Pilot, said we want to keep unauthorized aliens out of our industry, we think that’s the thing to do for 

a variety of reasons. Give us this opportunity to use Basic Pilot and 

screen them out at the time of employment—at the time of initial 

61

employment, and the Immigration Service said, ‘‘that’s too complicated, and we can’t.’’ I think pursuing that—Senators Hagel and Roberts actually introduced a bill that never went anywhere—but that directed the 

Immigration Service to do so, and I think it’s something that’s certainly worth exploring now because that is the Achilles heel of the 

Basic Pilot Program: identity theft linked to the Social Security 

number. 

Mr. HOSTETTLER. Thank you. Mr. Jeffrey, if I can find the Statement that you made with regard to an IG—Social Security Administration IG report. When talking about barriers between the Social 

Security Agency—Administration—and the Department of Homeland Security, you say, ‘‘furthermore, we continue to believe that 

SSA should seek legislative authority to remove barriers that 

would allow the agency to share information regarding chronic 

problems with DHS—chronic problem employers with DHS.’’ Could you elaborate on that? I know we’ve talked a lot about the 

numbers and the high numbers by some employers. Could you just 

elaborate on that type of work? 

Mr. JEFFREY. Right, Mr. Chairman. I believe that I was quoting 

from the Social Security Administration’s Inspector General report 

that was published in April about misuse of Social Security numbers in the agricultural and service and some other industries. 

But I wrote a piece a few weeks ago about the fact that the Social Security Administration Inspector General had discovered a security guard company, based in California, that in tax year 2001, 

had 49 percent of its W-2 forms dumped into this Earning Suspense File because the Social Security Administration could not 

match them up to a taxpayer. And I asked the Inspector General 

of the Social Security Administration if they informed the government of the State of California, if they had notified the Department 

of Homeland Security about this security guard company, and they 

told me, in response, that they believed that, with some exceptions—and my understanding of the key exception was in the context of a criminal investigation—but with some exceptions that section 6103 of the Internal Revenue Code prevented them from sharing that information. 

So I believe that what the Inspector General is referencing in 

that April report that I quoted there was this wall that they think 

prevents the Social Security Administration, which knows the identity of these companies that are filing all these bad W-2s, from giving that information to the Department of Homeland Security. 

To me, it’s analogous to the wall of separation we had between 

counterintelligence investigators who couldn’t hand over information they got on FISA warrants to criminal investigators before the 

PATRIOT Act was passed. 

I think it’s a similar problem, if it is, in fact, this section of the 

IRS code that prevents this information from being passed on. I 

think that part of the code should be amended. 

I think that the Social Security Administration should actually 

be statutorily mandated to routinely and regularly pass on this information to the Department of Homeland Security. 

Mr. HOSTETTLER. Thank you, sir. The Chair now recognizes the 

gentlelady from Texas, Ms. Jackson Lee, for 5 minutes. 

62

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me 

as well acknowledge my good friend from Texas, who happens to 

be a jurist in his former life. Maybe he still is, and so when he 

poses the question to a witness and begins to analyze credibility, 

I believe that he is somewhat in the courtroom. And I don’t know 

whether credibility can be based upon whether you agree or disagree with the witness. But I will say that another legal theory 

that you would use in the courtroom, a lawyer would rise and say, 

asked and answered. 

Ms. Gordon was asked, and she answered it. She was asked and 

she answered it. So I hope that we can apply ourselves equally and 

fairly to a number of legal guidelines when it comes to our mutual 

witnesses, and I do understand the frustration that many of us 

sometimes engaging with our witnesses. 

But in any event, let me proceed by suggesting, Mr. Jeffrey, I 

may, in fact, agree with you a lot to the extent that we need more 

resources. And so I pose to you this question. 

I notice—I’m not sure if you’ve said this, but immigration seems 

to find its way to the southern border, where Texas is, and it seems 

to be where we—as far as I’m concerned—we have been too heavily 

weighted to immigrants who happen to come from the southern 

border and make it only that issue. 

I don’t think we’ve found one terrorist amongst the Hispanic population that’s come across the border that may be considered undocumented aliens working in various places around the nation— whether it’s hotels, hospitals, or in the agricultural areas. 

Not to say that I am either reckless or ignorant of the fact that 

we have to be secure on our borders, but I think it’s important to 

note that when we talk about reducing the number of undocumented aliens, and that helps fight the War on Terrorism, frankly, 

I believe that the War on Terrorism is distinctive. It requires technology, intelligence. It requires keeping the terrorists away from 

our respective countries. So I would try to get you to try to—if 

you’re saying something that employer sanctions have something to 

do with terrorism, I’d appreciate the opportunity for you to clarify. 

I’m going to ask all my questions, and then I’ll yield to you all. 

Mr. Hampe, I don’t think you are clear enough—I’m not going to 

go into ask and answered—but I don’t think you were clear enough 

to give me guidance on getting the guys who are perpetrating the 

illegal documents. I want some legal guidance from you. You’ve obviously dealt with this issue, both professionally, and I sense that 

you’re a little sensitive to taking a hammer to employers, the business community, and you’re saying these guys are victims because 

they’re getting all these random documents. 

So if you would guide me a little bit more. 

Ms. Gordon, I understand what you’re saying, and I’d like you to 

explore it more. And that is, I understand you to say—you’re not 

answering the question on whether there should be illegal immigrants—I’ll say that I think there should be a circumstance where 

we document those who are here illegally. That will certainly part 

the sheaves, if you will. That will separate the wolves from the 

sheep. You’ll know who they are. You put them in line to get legalization, and you’ll have an answer. I hope people will look at the 

Save America Comprehensive Immigration bill that I have that 

63

deals with that aspect; that fixes a lot of broken system; protects 

American jobs; gets more resources for the border. 

But help us understand more what you’re saying by your words 

of suggesting that going after the illegal immigrant in the workplace is not going to help American jobs. It’s not going to help employers stop doing what they’re doing. If you treat the illegal immigrants badly by lower wages and can’t go to the bathroom, they’ll 

throw those out and get the next group. And so they keep coming, 

as I understand that may be a thrust. You may want to refine it 

a little better than what I’ve said. 

And, Mr. Stana, you know, we have the oversight, but it’s a 

shame that when we go to experts like yourself and we ask what 

should we be doing, and we ask for more resources, because frankly 

I think that’s what you need—trained individuals, not throwing 

good money after bad. But for example, you indicated the Basic 

Pilot Program, you can’t do it because you don’t have resources. 

But when we go to experts like yourself to the Department of 

Homeland Security, you know what you do? You turn into reticent, 

shy, on the wall, no comment, because you have the overall policy 

of a budget line item from the Administration that’s cutting you off 

at the path. We’re not going to be able to solve this problem unless 

experts have enough courage to say to their supervisors, I’m going 

to break rank. We’re never going to get our hands around security, 

immigration unless we get the resources we need—from Customs, 

from ICE, from those who are on the border, from the Immigration 

Services that are backlogged, holding up people’s documentation, ’cause they can’t find the fingerprints, from the Basic Pilot Program—that’s a shame. There are people who are fighting to get the 

standard ID program to get through the airport. 

We can’t do it, because we don’t have enough money to do it. So 

you have these automatic travelers who could get that ID card. 

They can’t get it, because there’s not enough money. 

So I want you to answer that question. Why you don’t speak up 

about the resources we need so we can fight for you in the United 

States Congress. 

If I can get Mr. Jeffrey to answer the question that I asked, and 

thank you, all, very much as witnesses. 

Mr. JEFFREY. Congressman, I appreciate your question. I think— first, I take your point that Latin American immigrants coming to 

the United States looking for a job are not a terrorism threat to 

the United States. I think the connection is first, as I quoted, Admiral Loy did say in the Senate Intelligence Committee that alQaeda leaders have looked at infiltrating terrorists across the 

Mexican border. 

Ms. JACKSON LEE. OTMs. 

Mr. JEFFREY. Right. Because they think that will provide them 

with more operational security, i.e., the ability to operate secretly 

within the United States. 

Also, he said in his testimony, he cited criminal enterprises that 

can support terrorists or terrorism, and among those he cited, if I 

remember correctly, were people smuggling, document forgery, and 

identity fraud—the sort of crimes that Mr. Hampe was talking 

about are precursors to illegal aliens feigning employment in the 

United States of America. So I believe that in order to secure the 

64

border against the threat and the terrorists that may be infiltrating it, we need to limit the flow of people in general across the 

border so that the resources we have will be more effective in intercepting those malefactors. 

And if the people who are coming for jobs know they’re not going 

to get a job because the job magnets have been closed down, we can 

more surely know that those who are illicitly trying to cross the 

border are coming for an intent that is not a job, and could be 

harmful to the American people. And so there’s the market created 

for the criminal activity the terrorists use that the illegal aliens 

also use, and there’s just the sheer numbers of people coming 

across the border that facilitates the movement of terrorists. And, 

in fact, last week, I believe June 14th, in Detroit, a Federal Judge 

sentenced a man named Mahmoud Kourani to 4-and-a-half years 

in jail for material cooperation with the terrorist group Hezbollah. 

He was raising money for them apparently in Detroit. But the Federal Government said this man had come across the Mexican border in the trunk of a car. So we do know that people come from 

the Middle East and do sneak across the Mexican border, and I believe that has to be stopped. 

Mr. HAMPE. Congresswoman, I think the focus on documents 

fraud is appropriate now because A, not enough attention is paid 

to it, and B, if you do shift the focus primarily to employers, you 

run into the conundrum of, there are a small group of employers 

that do do very bad things. They should be—there’s no question 

that, you know, the full resources of the law should be used against 

them. And, you know, indicators such as the mismatch statistics 

that were displayed earlier, I think would be an advisable way to 

target the specific employers you’d want to go after. 

But the majority of Americans are employed by large employers. 

The large employers tend to be more sophisticated. They do, for the 

most part, have very well running HR departments that handle the 

I-9 process in such a way that they’re not going to be found liable 

if ICE conducts an I-9 audit. 

So I think, if you were to ask, so what specifically should we do 

to target documents fraud, my suggestion is this: ICE should, as 

the legacy INS did in the 1980’s and early 1990, designate a cadre 

of attorneys to go into U.S. Attorneys offices in the major cities. 

U.S. Attorneys offices have these all the time. They’re called Special Assistant U.S. Attorneys, or ‘‘Specials,’’ as the AUSAs call 

them, dedicated to immigration law enforcement where an ICE attorney, designated as a Special Assistant U.S. Attorney in a large 

U.S. Attorneys office, would prosecute specifically immigration 

crimes, would bring his or her expertise to that body of law that 

they’re familiar with, the immigration crimes, and would specifically go after a priority list of crimes, including, I believe, documents fraud, with the objective being to substantially raise the 

price of a fraudulent Social Security card, driver’s license, you 

know, the critical I-9 documents. 

What could we do right now? I would say that’s what you can 

do, absent some major reform in, you know, in document security. 

Ms. JACKSON LEE. But performing document security is an important challenge? 

65

Mr. HAMPE. Absolutely. It has proven to be politically very challenging. Sorry. 

Ms. JACKSON LEE. Thank you. Ms. Gordon? 

Ms. GORDON. Thank you, Congresswoman. 

As you know, we have not admitted, as Congressman Flake said, 

enough immigrants to meet the demand in this country. We have 

jobs going begging, and we have an immigration policy that claims 

to bar undocumented immigrants from taking these jobs, but covertly admits them in. 

It is my goal to have good jobs in this country and to have them 

filled by legal residents and by U.S. citizens. And I think the best 

means to achieve this is by immigration reform that is adequate to 

the demand, and then to deal with any residual of undocumented 

immigration through intensive and targeted enforcement of basic 

workplace laws. 

Ms. JACKSON LEE. Okay. Mr. Stana. Thank you. 

Mr. STANA. Yeah. I think you have a good point. I think the Department of Homeland Security ought to be honest about the resources it needs to do its job. Our role is to make sure that it does 

the best job it can with the resources it has, and we have found 

areas where it has been a bit wasteful in its use of resources. 

As for the GAO, I’d love to have more resources than we have 

right now, but we’ve decided to hold the line in these tough budget 

times. 

Ms. JACKSON LEE. Well, the light has been turned on in this 

room, Mr. Chairman. Thank you very much. 

Mr. HOSTETTLER. The Chair now recognizes the gentleman from 

Texas, Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I do appreciate the instructional information from the 

gentlelady from Texas on how to question, and I completely agree 

questions should not be all that affected by whether we disagree 

or agree with an answer, and in the case like today, if I had ever 

gotten an answer, then I could have determined whether I agreed 

or disagreed. 

But I would also point out that whether it’s at the courtroom, the 

hearing room, the living room, the board room, or just in life in 

general, credibility is always, always an issue. And none of us 

should ever forget that. 

Now, Mr. Stana, your testimony that you had provided in writing 

indicated that you believe ICE had chosen to concentrate on critical 

infrastructure, and I believe that you have talked about that some. 

So I would ask you, and then I’ll follow with others, but in your 

opinion, what are the three most important things we could do 

with our money and our resources to address the problem? You get 

my question. You said we had chosen to concentrate on critical infrastructure. What three do you think would be most important to 

concentrate on? 

Mr. STANA. Within critical infrastructure, I would—

Mr. GOHMERT. Well, just in anywhere. 

Mr. STANA. Oh, anywhere? 

Mr. GOHMERT. Anywhere. 

Mr. STANA. In homeland security or in worksite enforcement? 

66

Mr. GOHMERT. Anywhere you feel like would be most helpful to 

concentrate resources. 

Mr. STANA. Let me start with worksite enforcement. I think the 

most critical things in worksite enforcement are these four: first, 

I think we need to get a better idea of how many foreign workers 

or illegal or legal immigrants we need to make our economy hum. 

Okay. 

Second thing I would do is I would set up an effective worker eligibility verification system with reliable documents so that I know 

the people I’m hiring are eligible to work in the United States. 

The third thing I would do is I’d have an effective regime of sanctions so that it would make a difference to me whether I hired— if I were an employer—whether I hired an illegal person or an unauthorized person or not. That doesn’t exist right now. 

And the fourth thing is I would fund a credible system of worksite enforcement with enough agents to do that job. 

But I think you have to do all of those, not just one or the other. 

As far as critical infrastructure, I think that nuclear facilities 

and airports, airplanes are two good areas. I would expand that to 

targets—trophy targets that we have—and there are some efforts 

along those lines—trophy targets meaning White House, Capitol 

Hill, Golden Gate Bridge. I would make sure that those were protected because they would have a devastating impact, as the Twin 

Towers did on 9/11, if something happened to that, on the American people. 

Mr. GOHMERT. Thank you. Mr. Jeffrey, just in dealing with the 

issue of illegal immigration, what do you feel would be the three 

most important places to concentrate our resources? 

Mr. JEFFREY. I think Mr. Stana has some good ideas. I think 

that Congress is doing the right thing by going forward and fully 

funding the new ICE agents that were authorized in the 9/11 reform bill. It may turn out that there needs to be even more—it may 

turn out that there needs to be very strict—a very strict mandate 

from Congress that these agents are actually deployed to worksite 

enforcement. And I accept the argument of the people at ICE that 

they want to concentrate first on critical infrastructure. But considering that we have a $2.6 trillion Federal budget, and 

my view, as a conservative, there’s a great many things this Government is spending money on that it doesn’t need to spend money 

on, that the Constitution does not mandate that it spend money on, 

I believe this is such a priority that there shouldn’t be, you know, 

penny ante budget restrictions on what it takes to make sure that 

we enforce the immigration law. 

Mr. GOHMERT. Okay. Mr. Hampe? 

Mr. HAMPE. I would agree with Mr. Stana’s list, but would make 

one amendment to it, and that is in 1994 the Jordan Commission 

recommended that the best way to obtain a secure worker 

verification system is to come up with something like Basic Pilot. 

They had envisioned more than just a pilot. 

I think that makes a lot of sense. I think expanding its effectiveness, you know, the politics of making it mandatory are uncertain; 

but certainly making Basic Pilot capable of addressing queries from 

most of the U.S. employers and making it effective enough so that 

it can give an employer a heads up on whether an identity theft 

67

situation is present would be an extremely important item to add 

to the agenda. 

Mr. GOHMERT. Thank you. I yield back my time. 

Mr. HOSTETTLER. The Chairman recognizes the gentlelady from 

California, Ms. Waters, for 5 minutes. 

Ms. WATERS. Thank you very much. There was a little bit of a 

discussion here with Ms. Gordon about a particular question that 

was asked by my colleague that she did not answer to his satisfaction, and while I recognize that Members would like to have their 

questions answered, we can’t make anyone answer anything. 

But I want to say to Ms. Gordon that one of the problems we 

have with this issue is a failure to deal with it head on simply because it’s too painful. Yes, there are problems with immigration in 

this country, and while we would like to have some humane answers, the fact of the matter is we have too much illegal immigration, and it does cause problems. We recognize that people are coming here because they’re poor. They want to have opportunity. They 

want to be able to have a decent quality of life. 

However, we cannot excuse the illegal immigration and somehow 

create a sophisticated argument that talks about how we must target the employer for better pay and more humane work policies as 

a response to the illegal immigration. That just doesn’t wash. 

The fact of the matter is this President said that he would put 

resources in the budget for 2,000 more border guards, which he did 

not do, which we are trying to force him to do, and that’s not 

enough. We need to recognize there’s a difference between legal immigration and illegal immigration. 

People who are here legally should be treated as American citizens. They should have a right to work and to earn a living. People 

that are here as illegal immigrants must be dealt with, and hopefully in the most humane ways. 

I believe that employers should receive sanctions. They should be 

real, and they should be enforced. 

People who’ve been in the United States for some period of time 

under certain conditions, we should recognize this as such, and 

there should be something that we could do. Nobody wants to talk 

about amnesty. It’ a dirty word. It just creates all of this discussion 

and debate, and people use it in a political way. But I think there 

must be room for some kind of amnesty for people who have lived 

and worked here under certain conditions. 

But again, Ms. Gordon, that’s not to say that we should not have 

sanctions against employers and not anything should continue to 

go. And while we have a lot of jobs that we need additional workers 

on, there is confrontation. There is confusion and competition for 

jobs that we have to recognize as a problem and deal with. 

Now having said that, Ms. Gordon, do you believe that we can 

create the kind of public policy that will recognize all of these complications and do the right thing by those immigrants who are getting here by any means necessary, employers who need to have 

some sanctions, people who need to be recognized as having lived 

and worked here for some period of time that should be allowed 

some amnesty and that this not have an either or, but some kind 

of public policy that recognizes all of these difficulties and complications? 

68

Ms. GORDON. I do believe that such a public policy is possible. 

And I think as you point out, Congresswoman, an important part 

of that is legalization and I do think that it is one of those rare 

confluences of interests across the spectrum here about making 

sure that jobs are available for U.S. workers. From my 18 years of 

experience working on the ground in the industries and with the 

employers that hire those workers—the small underground economy employers, the only thing that they respond to is consistent 

targeted enforcement that is brought about by the workers themselves. And the only way those workers are going to come forward 

is if they know they can enforce all the laws the employer is breaking—the wage and hour laws, the health and safety laws, and so 

on—by safely going to the Government to report them. 

What we’re talking about here is competition for wages and 

working conditions. That’s what’s at the core of everything everybody has said. 

Ms. WATERS. Okay. And I understand that, and I have to interrupt you here for a moment, because my time is going to run out 

and I have a great appreciation for that. But let me tell you where 

you must examine your argument. 

You must examine the argument that says someone who’s here 

illegally in the first place has a right to go and challenge anybody 

about the conditions of the workplace. That argument won’t fly in 

this public policy making that we have to do. 

I want to do something for workers who have been here and who 

deserve the opportunity to petition even this Government to say, 

you know, my children were born here; I’ve been here for so many 

years. I own a house. I pay taxes. And I want to support the immigrant that falls in a certain category. 

But when you say that somebody who came across the border 

yesterday, goes and works on a job, does not like the pay, does not 

like the fact that they don’t have certain benefits, can now go and 

charge the employer with not having treated them right, something 

is wrong with that argument, and I want you to think about it and 

think about how to, you know, come up with other ways by which 

we can be honest, have some integrity in our public policy making, 

and do the right thing. 

Mr. HOSTETTLER. The gentlelady’s time has expired. I thank the 

gentlelady. 

The Chair now wishes to thank and commend the members of 

the panel for being here—for your very important contribution to 

this discussion. And the business before the Subcommittee completed— Ms. JACKSON LEE. Mr. Chairman, may I have unanimous consent 

just to thank the witnesses as well because it’s been a feisty hearing, and I want to thank them. We really appreciate you coming 

forward, and I just say to Mr. Jeffrey just a sentence: that intelligence is part of having pointed out the indicted gentleman in Detroit, and so it’s not just resources and going down to the border, 

but intelligence will help separate the illegal immigrants from the 

OTMs, or others that might come for terrorist activities. When I 

say intelligence, the intelligence gathering opportunities of this nation. 

But I thank, you, and I’d like to thank the witnesses as well. 

69

Mr. HOSTETTLER. I thank the gentlelady. 

Ms. JACKSON LEE. Thank you. 

Mr. HOSTETTLER. Without objection, the hearing is adjourned. 

[Whereupon, at 4:20 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman, we have a real problem with the illegal entry of aliens into the 

United States and with employers illegally hiring such aliens. With the lure of a 

job and a better life, more and more aliens illegally come across American borders 

every day. As it stands, the current law requires prospective employees to provide 

employers with specified documentation to prove that they have a legal resident status. However, illegal aliens have easy accessibility to fraudulent documentation to 

prove that they are legal residents. Therefore, this requirement needs to be strongly 

enforced by the overseeing agencies—the Department of Homeland Security (DHS) 

and Immigration and Customs Enforcement (ICE). But this is not being done. 

Mr. Chairman, workplace enforcement and employer sanctions are dysfunctional. 

There is a huge problem with the employment of illegal aliens in this country and 

neither DHS nor ICE has made this problem a high priority. And with such lax enforcement by both agencies, there is no incentive for employers to stop hiring illegal 

immigrants, or for aliens to stop coming to America illegally. 

Also, with employers not being penalized for hiring illegal immigrants, illegal immigrants are being exploited at the workplace. They do not belong to unions out of 

fear of being fired; they consistently receive extremely low wages, and usually work 

in unsanitary or unsafe conditions. With such little enforcement at the workplace, 

the enforcement of immigration law is put into the employers’ hands, leaving illegal 

aliens vulnerable to exploitation and abuse. 

Mr. Chairman, hopefully today we can explore options to effectively prioritize 

workplace enforcement and employer sanctions so as to better safeguard our borders 

and to prevent the exploitation of illegal immigrant labor. Hopefully our witnesses 

today can provide some insight into this pervasive problem and come up with strategies as to how to effectively address this problem. 

I yield back the balance of my time.

Æ