FAIR Legislative Update - 16 Jun 2008

Executive Order Makes E-Verify Mandatory for Government Contractors

On June 6th, President Bush signed an executive order requiring all federal contractors to use E-Verify to check the work authorization of new employees. In a press conference on Monday, Homeland Security Secretary Michael Chertoff announced the executive order, where he pledged that E-Verify would, in cooperation with the efforts of other federal agencies, give contractors the tools needed to ensure that workers used for federal contracts are legal. Chertoff said, "It is always embarrassing frankly, when we have these periodic operations in which we discover illegal workers working on federal projects paid for by federal money that is ultimately paid for by the taxpayer." Chertoff praised E-Verify as a "tremendous success," noting that 1,000 new employers on average join every week.

The executive order appears to apply to all federal agencies and contractors bidding on new contracts, but it remains unclear whether the order will apply to contracts already in place. The executive order justifies the new requirement to use E-Verify by stating that the use of illegal alien labor on a federal contract poses the risk of disruption when employers ignore immigration laws, and that the use of E-Verify will provide more stability in government contracting. (Executive Order: Amending Executive Order 12989, as Amended, June 9, 2008) Secretary Chertoff announced that there would be a proposed rule that would implement the President's executive order, but declined to comment how the new requirement would be enforced. (Remarks by Homeland Security Secretary Michael Chertoff at the State of Immigration Address, June 9, 2008)

Business and other special interest groups criticized the new executive order and the E-Verify system in general. Mike Aitken, director of governmental affairs for the Society for Human Resource Management, said, "We think it's extremely premature to extend this coverage . . . to federal contractors without addressing the shortcomings of E-Verify." (National Journal, June 10, 2008) Ali Noorani, executive director of the National Immigration Forum, said, "This is a last-ditch effort to throw a bone to the anti-immigrant crowd….He couldn't pass any good policy so he is left without any options." (Wall Street Journal, June 10, 2006)

Meanwhile, advocates for true immigration reform lauded the President's executive order. Congressman Lamar Smith (R-TX), ranking member of the House Judiciary Committee, said "I want to applaud the Administration's decision to require companies who contract with the federal government to use the Basic Pilot Program. This protects the American worker by ensuring that all federal jobs, both direct and indirect, are reserved for legal workers." (Statement of Ranking Member Lamar Smith Regarding the Electronic Employment Verification System, June 10, 2008) Congressman Jack Kingston (R-GA), member of the House Appropriations Committee, also praised the executive order and said, "We should have a higher bar and set an example for the private sector. The federal government is a trillion dollar customer so if you want to sell to us you must comply with the law." (Press Release from Rep. Jack Kingston, June 9, 2008) Senator Chuck Grassley (R-IA) told FAIR, "This is an important and positive step by the Department of Homeland Security. Government contractors should be held to the same standards as the federal government. Nobody should be allowed to skirt the rules and the federal government and its contractors should lead by example."

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House Committee Scrutinizes E-Verify

On Tuesday, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing to examine E-Verify and proposed legislative alternatives. Chairwoman Zoe Lofgren (D-CA), presiding over the hearing, voiced concerns about E-Verify in her opening statement, and listed the potential privacy and discriminatory misuse of E-Verify accompanied by reports of wrongly denied employment and high error rates.

Representatives Ken Calvert (R-CA), Heath Shuler (D-NC), Sam Johnson (R-TX), and Gabrielle Giffords (D-AZ) appeared as Congressional witnesses, each proposing different electronic employment verification bills. Representative Calvert strongly defended E-Verify and urged the Subcommittee to extend the program. Since its inception in 1996, employer use of E-Verify has grown steadily, but federal law provides that the program will sunset November 30, 2008. In the hearing, Rep. Calvert explained that to prevent the program from expiring, he has introduced two bills: H.R. 19, which would make E-Verify permanent and phase in its mandatory use over seven years, and H.R. 5596, which would provide a ten year extension of the current program. (Testimony of the Hon. Ken Calvert, June 10, 2008)

Rep. Shuler also told the Subcommittee that he supports making E-Verify permanent and mandatory for all employers. He explained that the SAVE Act (H.R. 4088), which he authored, would do just that. In response to questions about E-Verify's error rate, Shuler told the committee that E-Verify has an error rate of one-half of one percent, which is far less than the 4 percent error rate alleged by the program's critics. Moreover, he testified that, based on load testing, the system could handle 240 million queries a year—four times the annual number of people hired in the U.S. (Testimony of the Hon. Heath Shuler, June 10, 2008)

However, Representatives Johnson and Giffords were critical of E-Verify. Rep. Giffords testified that mandating E-Verify as-is would be "disastrous." She cited as evidence that between October 2006 and March 2007 nearly 3,000 foreign born U.S. citizens were initially flagged erroneously as not work authorized. (Testimony of the Hon.Gabrielle Giffords, June 10, 2008) Rep. Johnson criticized how proponents of a mandatory E-Verify system have not taken into account the "need to properly fund this expanded mission of the Social Security Administration (SSA)." (Testimony of the Hon. Sam Johnson, June 10, 2008)

Representatives Johnson and Giffords coauthored H.R. 5515, the New Employee Verification Act (NEVA), to offer an alternative verification program to E-Verify. H.R. 5515 would require electronic verification of employment eligibility, but allows employers to use one of two systems. The first system, based on the National Directory of New Hires (NDNH) database, is already in use in the states to assist child support agencies in locating parents and enforcing child support orders. The second eligibility verification system allow employers to utilize government certified private sector companies to certify employment authorization. Both systems would interface with SSA and Department of Homeland Security (DHS) databases to verify the accuracy of the data. Additionally, NEVA would preempt all state laws that sanction employers for hiring illegal aliens. (H.R. 5515, §101(b))

Also testifying at the hearing was Timothy Sparapani, Senior Legislative Counsel for the American Civil Liberties Union (ACLU). Mr. Sparapani argued that E-Verify or any similar electronic verification system would increase identity theft. Suggesting such a system would be too effective, Sparapani told the Subcommittee, "Requiring each worker to present his or her identity to be granted permission to work will lead some desperate undocumented immigrants - and those who smuggle and illegally employ them - to steal the identities of work-eligible American workers. In short, the identities of work-eligible individuals will become commodities for borrowing and sale." (Testimony of Timothy Sparapani Senior Legislative Counsel, Washington Legislative Office American Civil Liberties Union, June 10, 2008)

Jonathan Scharfen, Acting Director of the U. S. Citizenship and Immigration Services (USCIS), defended E-Verify before the committee. He assured the committee that E-Verify is an accurate, efficient and easy to use system for employers. Scharfen also explained that errors occur when an employee has not updated information with the SSA, including name changes or citizenship status changes, or that the employer made an error inputting information into the system. He also reassured the committee that E-Verify's infrastructure is capable of handing a nationwide mandatory system. According to Scharfen, the DHS and the SSA conducted load testing on the databases and the test results showed that E-Verify has the capacity to handle the estimated 60 million queries per year that would occur under a nationwide mandatory system. (Testimony of Jonathon Scharfen, Acting Director of the U.S. Citizenship and Immigration Services, June 10, 2008)

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Lofgren Promotes Expansion of "High Tech Green Cards"

On Thursday, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing to discuss the need for increasing the number of green cards for "highly skilled" workers. Chairwoman Zoe Lofgren (D-CA) noted that there were a number of bills introduced addressing the issue including her bill, H.R. 6039, which would issue green cards to foreign students graduating from U.S. institutions with a master's degree or higher in science, technology, engineering or mathematics, and who have an employment offer from a U.S. employer (To read the testimony of all the witnesses at this hearing, click here.)

Most of the witnesses at the hearing agreed with the Chair's assessment that Congress should increase the number of green cards for foreign high tech workers. Lee Colby, past chairman of the Santa Clara Valley Section of the Institute of Electrical and Electronics Engineers (IEEE) testified, "Instead of becoming more dependent on temporary non-immigrant visa programs, like the H-1B, IEEE-USA recommends that Congress make permanent immigrant admissions programs the preferred option for adding skilled and educated workers to our economy." (Testimony of Lee Colby, June 10, 2008) National Semiconductor Corp. Senior Vice President Edward Sweeney told the committee that the U.S. must, "Permit foreign nationals to work in the U.S. rather than force them to work overseas. Foreign nationals comprise half of the masters and 70 percent of the PhDs gradating from U.S. universities in electrical engineering, and they help create the successful products that support other jobs throughout the company." (Testimony of Edward Sweeney, June 10, 2008)

Insisting on all or nothing immigration reform, including amnesty, Representative Luis Gutierrez (D-IL), a member of the Immigration Subcommittee, stated, "I think we should give the high-tech industry the innovators they need, but what do lawmakers tell foreign workers who labor on farms and apply pesticides -- that 'you're not really smart?'" Gutierrez emphasized that farm workers are, "just as critical and relevant to the innovation of that industry" and urged the committee to take a "holistic approach" to immigration reform. (Computerworld, In Congress, H-1B Issue Pits Tech Workers Against Farm Groups, June 12, 2008)

Mark Krikorian, Executive Director, Center for Immigration Studies (CIS) questioned the need for more foreign high tech workers. He testified that our society often takes for granted that the workers who come in on these green cards are highly skilled. However, he told the panel, "Once we peel away the misconceptions, we find that the 'highly skilled' workers in question aren't really that highly skilled, and the 'need' for them has little to do with the national interest and much to do with firms seeking cheaper and more compliant workers." (Statement of Mark Krikorian Executive Director, Center for Immigration Studies, June 12, 2008)

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House Passes Three Immigration-Related Bills

The House of Representatives passed three bills related to immigration during the week of June 9, 2008. All of the measures were debated and voted on as suspension bills, which by definition can not be amended and require a 2/3 majority vote to pass. These bills are typically considered non-controversial by both parties.

The first bill, the Kendell Frederick Citizenship Assistance Act S.2516, was introduced by Senator Barbara Mikulski (D-MD) in December 2007. S. 2516 helps servicemen and women applying to become citizens by requiring Homeland Security (DHS) to accept the fingerprints and biometric data they originally submitted to the Department of Defense (DoD) at enlistment. (See Sec. 2(a)(2)) Under the new bill, DoD will be required to transfer the data to DHS free of charge, and both agencies will be expected to work together to facilitate the process. (See Sec. 2(c)(1)&(2))

The second bill passed by the House was H.R.5569, which would extend the Regional Center Pilot (EB-5) program for five years. The EB-5 program grants two-year conditional visas to individuals seeking permanent residence based on their involvement in a new commercial enterprise. EB-5 visas are issued to wealthy aliens who have invested at least $500,000 in designated areas and are able to prove that as few as 10 American jobs were created through that investment. (See U.S.C. Title 8) While the bill does not increase the total number of EB-5 visas made available annually, it does extend a program established by Congress 15 years ago and is set to expire at the end of September. A measure similar to this was added to the Iraq War Funding Bill by the Senate Appropriations Committee in mid-May, but was stripped out when Senator Robert Menendez (D-NJ) made a point of order under a Senate rule that prohibits legislating on appropriations bills. (To read more about the Senate bill, click here.)

Finally, the House also passed legislation that will provide financial aid to Mexico and other Central American countries in order to fight drug and gang-related violence. H.R. 6028, the Merida Initiative to Combat Illicit Narcotics and Reduce Organized Crime Authorization Act of 2008, authorizes $1.6 billion in spending. If appropriated, the aid would be used to provide training and equipment to drug enforcement agencies of Mexico and other Central American countries. (Titles I and II) Congress has imposed several conditions on the aid, including a requirement that investigations be conducted into human rights abuses by the Mexican military. (Title III) Mexican government officials have threatened to reject the aid if these conditions are attached. (Associated Press, Mexico Warns it may Reject U.S. Drug Aid, June 2, 2008) (To read more about the Merida Initiative, click here.)

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Pew Hispanic Center Reports Rising Unemployment in Hispanic Population

In early June, the Pew Hispanic Center released a report showing the slowing U.S. economy, especially in the construction sector, has led to higher unemployment rates among the U.S. Hispanic population. The Pew Hispanic Center reported that unemployment rates for Hispanic workers significantly increased between the first quarter of 2007 and the first quarter of 2008, with the most dramatic increases within immigrant communities. Among the immigrant population, the Pew Hispanic Center does not distinguish between legal and illegal aliens (as the unemployment data does not account for this), but the Center estimates that approximately 30% of the foreign-born population is illegal. (Jeffrey Passel, The Size and Characteristics of the Unauthorized Migrant Population in the U.S. Pew Hispanic Center, March 2006).

The report, entitled the "Latino Labor Report, 2008," shows remarkable differences in unemployment rates between native-born and foreign-born Hispanic workers. For Hispanics who immigrated to the United States after 2000, the unemployment rate in the first quarter of 2008 was an astonishing 9.3%. While unemployment for all Hispanic immigrants has increased, the Mexican immigrant population appears to have taken the hardest hit in the past year: the unemployment rate for Mexican immigrants was 8.4% in the first quarter of 2008, a 3.1% increase over the 5.5% rate for that population in 2007. (Rakesh Kochhar, Pew Hispanic Center, "Latino Labor Report, 2008: Construction Reverses Job Growth for Latinos").

Despite the downturn in Hispanic employment, the Pew Hispanic Center maintains there is no evidence that it is leading to self-deportation, an assessment that contradicts other reports. Only last week, the Miami Herald noted that an increasing number of illegal aliens are choosing to self-deport rather than struggle to find work in the U.S. The paper quoted Arturo Padilla, a Nicaraguan immigrant who has decided to return home because of a declining economy and poor working conditions: ''There is no sense in staying in a country where you can't eat well, you can't live well, you can't earn enough to be well, and, on top of all of this, you get treated like an animal.'' According to Sociology professor Suieli Siqueira, who interviewed many of the self-deportees, "the cost-benefit of this experience of migration has stopped being positive and they began thinking about coming home." Nicaraguan consulate officials also report that more Nicaraguans are returning home because "at least in Nicaragua, they can figure something out to make a living without the fear of getting detained." (Miami Herald, "More Immigrants Choose to Leave U.S., Go Home," May 1, 2008).

In addition, just days ago the Charlotte News and Observer reported that after multiple North Carolina counties began participating in a 287(g) program, which allows local law enforcement agents to initiate deportation procedures, many undocumented immigrants were opting to go home rather than live in fear of deportation. "I'm always thinking that if the police stop me, I could lose my family," said Mexican citizen Jesi Segura, who has made plans to return home. (The News and Observer, "Deportation Fear Fuels Flight," June 12, 2008).

The extent to which the rapidly rising unemployment rates in the Latino community are attributable to a slowing economy and/or increasing enforcement against the hiring of illegal aliens is uncertain. However, there is evidence that illegal aliens who find it difficult to find work are more likely to self-deport. This was the outcome for Mexican Hector Salinas, who decided the situation for illegal aliens would not be getting better anytime soon: "The patrones pay only what they want. You live with very little, and then you're also alone, and always fearful of arriving at work and having them come looking for you." (Miami Herald, "More Immigrants Choose to Leave U.S., Go Home", May 1, 2008).

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Homeland Security Inspector General Critical of FBI's Name Check Program

The name check program used by U.S. Citizenship and Immigration Services (USCIS) to process immigration-related benefit requests came under harsh scrutiny last week after the Office of Inspector General (OIG) released an audit criticizing the program's slow response time and poor accuracy rates. The National Name Check Program (NNCP), which compiles background information and criminal records for over 50 million individuals, is run by the FBI and offered as a resource to government and law enforcement agencies around the country. In the context of immigration, USCIS uses NNCP to check the names of aliens applying for benefits against terrorist watch-lists and other criminal databases.

The OIG audit raised concerns regarding both the wait-time and quality of NNCP's responses to inquiries, noting that NNCP suffers from a tremendous backlog, inadequately trained staff, outdated equipment, and lack of funds. (Office of Inspector General, "The Federal Bureau of Investigation's Security Check Procedures for Immigration Applications and Petitions," June 9, 2008). The OIG's audit suggests that these problems could result in potential security threats and delayed deportations. According to the audit, "the FBI's name check processes are inefficient and untimely, rely on outdated technology, and provide little assurance that pertinent and derogatory information is being retrieved and transmitted." Furthermore, the audit warns that "security check delays may slow the adjudication and deportation of applicants who pose a national security threat to the United States."

Among the 21 recommendations for improvement of the FBI's identification processes, the audit recommends that NNCP increase fees, re-engineer its software, and develop automation of its records to increase response time and better assure that records are thoroughly and accurately searched. (Id.)

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FAIR Recent Release

• Executive Order Requiring Government Contractors to Use E-Verify is Leading by Example, Says FAIR (June 9, 2008)

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Recent Floor Statements

• Rep. Charles Rangel (D-NY) commented on Emergency Extended Unemployment Compensation Act Of 2008 (June 12, 2008)
• Rep. Gene Green (D-TX) commented on H-2B Visas (June 12, 2008)
• Rep. Carolyn B. Maloney (D-NY) commented on Merida Initiative To Combat Illicit Narcotics And Reduce Organized Crime Authorization Act Of 2008 (June 12, 2008)
• Rep. Walter Jones (R-NC) commented on Border Patrol Agents Ramos And Compean (June 12, 2008)
• Rep. Zoe Lofgren (D-CA) commented on Kendell Frederick Citizenship Assistance Act (June 9, 2008)
• Rep. Zoe Lofgren (D-CA) commented on EB-5 Regional Center Pilot Program Extension (June 9, 2008)

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