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E-Verify Reauthorization Stalled With Time Running Out

Congressional efforts to reauthorize E-Verify, the electronic work authorization verification program, have stalled despite bipartisan efforts of many Members to bring a bill to the floor. The program, vital to combating the unlawful employment of illegal aliens, will expire in November if legislation to reauthorize the bill does not pass both the House and Senate before the fall recess. In March, Representative Ken Calvert (R-CA), along with sixteen cosponsors, introduced H.R.5596, which would extend the E-Verify program for a ten-year period. Plans to bring the bill to the floor were halted earlier this month when Representative Sam Johnson (R-TX) insisted that language be added to the bill that could jeopardize future funding of the operation of the program. In short, Rep. Johnson's language would prohibit the Social Security Administration (SSA) from ever spending any of its own funds to implement the program. Since the program is a joint effort of the Department of Homeland Security (DHS) and SSA, this means that if DHS ever fails to enter into a reimbursement agreement with SSA, the SSA database could not be used to verify an employee's legal work status.

Multiple Hill sources inform FAIR that efforts are underway to get a clean reauthorization bill to the House floor-i.e. the original Calvert bill without the Johnson language.  With E-Verify set to expire in November and the month-long August recess just around the corner, lawmakers are running out of time to reauthorize this important program.

Since its inception in 1996, the electronic verification program has proven to be an effective and useful tool in protecting legal workers and the individuals who hire them. In fact, in the last few years the number of employers registered for E-Verify has risen to over 75,000, and DHS recently reported that over 1,000 new employers are registering each week. (Testimony of Secretary Michael Chertoff, July 17, 2008)

In fact, support for E-Verify has grown so significantly that President Bush last month issued an executive order requiring all federal contractors to use the program for new and existing hires. (White House Press Release, June 9, 2008) Following the announcement, DHS Secretary Michael Chertoff said, "A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal. E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires." (DHS Press Release, June 9, 2008)

In addition to federal contractors, eleven states have also enacted laws encouraging or requiring use of E-Verify for state contractors, state employees, and, in some cases, for all employees. (National Conference of State Legislatures, May 5, 2008) States included are Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, North Carolina, Oklahoma, Rhode Island, Utah, and, most recently, South Carolina. (Id.) Following a contentious battle in the South Carolina State Legislature, Governor Mark Sanford praised his state's adoption of legislation that requires all employers to use E-Verify: "We've said from day one that while we're a nation of immigrants, we're also a nation of laws - and that South Carolina shouldn't be in the business of sanctioning illegal activity with a wink and a nod." (Sanford Press Release, June 4, 2008)

Stay tuned for more information on legislative efforts to re-authorize E-Verify.

House Homeland Security Committee Questions Chertoff on Border Security

On Thursday, the House Homeland Security Committee held a hearing to examine border security and ask DHS Secretary Michael Chertoff about the department's efforts in that area. Chairman Bennie Thompson (D-MS) voiced concerns about border security in his opening statement: "DHS has failed to develop a comprehensive strategy to guide its border security activities." The Chairman added, "Without a comprehensive strategy to coordinate the Department's efforts across components, DHS will not be as effective as it should be." Thompson pointed to "out-dated," "ill-equipped," and "understaffed" ports of entry along both the Southern and Northern borders as evidence substantiating his claim. (Statement of Chairman Bennie G. Thompson, July 17, 2008)

Ranking Member Peter King (R-NY) argued in his opening statement that a considerable share of the blame for the conditions along the border should be attributed to the Committee's failure to pass legislation related to border security. "It raises the question of how we can be so critical of the Department when we really have not passed any new border security bills ourselves," said King. Representative Dave Reichert (R-WA) supported King's statement by pointing out that "it's been 1,249 days since the committee charged with securing our nation's borders has passed border security legislation." (Committee on Homeland Security Hearing, July 17, 2008)

Homeland Security Secretary Michael Chertoff was the lone witness at the hearing. When asked what Congress could do to help DHS with the situation along the border, Chertoff stressed the importance of interior workforce enforcement measures and asserted that these efforts assist with border security. Chertoff highlighted the need for Congress to reauthorize E-Verify saying that, "If people don't come in to work illegally, they don't try to cross the border." (Testimony of Michael Chertoff, July 17, 2008)

Chertoff's testimony came just one day after House Appropriations Committee Chairman David Obey (D-WI) announced his unwillingness to move forward with fiscal year 2009 spending bills until the White House and Congressional Republicans agree to make concessions. (National Journal, July 17, 2008) Speaking on the appropriations process, Chertoff said that DHS has a "good sense" of where it needs to spend money to strengthen border security. "If we don't get appropriations bills, we can't spend the money," Chertoff said, adding, "I very much hope we can get a bill so we can continue to make progress." (Committee on Homeland Security Hearing, July 17, 2008)

Members of the committee also expressed concerns with the Department's immigration enforcement procedures. Representative Nita Lowey (D-NY) stated that she felt DHS was placing too much emphasis on worksite enforcement operations when it should focus the majority of its efforts on removing dangerous criminal aliens. Chertoff pointed to a recent tripling of the number of annual criminal alien removals as proof that the Department does emphasize this part of its enforcement responsibilities, but also noted the importance of worksite enforcement: "When we find a company," Chertoff said, "that has built a business model largely out of hiring illegals, we have to address that." Chertoff also attended to Representative Sheila Jackson-Lee's (D-TX) concerns regarding the conduct of Immigration and Customs Enforcement (ICE) agents during these worksite enforcement operations. The Secretary noted that it is ICE's policy to work with lawyers and social service agencies to design an approach that balances the need to effectively carry out workplace operations with the need to do so in a compassionate and law-abiding manner. (Id.)

House Committee Examines Who Should Pay To Fingerprint Exiting Foreign Nationals

On Wednesday, the House Homeland Security Subcommittee on Border, Maritime, and Global Counterterrorism examined the Visa Waiver Program (VWP), and questioned DHS's proposed rule requiring the airlines to pay for a system to collect biometric data to verify that foreign visitors leave the country. The VWP allows nationals of designated countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. VWP travelers are enrolled in DHS's United States Visitor and Immigrant Status Indicator Technology program (US VISIT) when they arrive at U.S. ports of entry. (U.S. Department of State, Visa Waiver Program)

The biometric collection system is part of US VISIT. The program, required by Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), mandates that DHS track when foreign visitors enter and exit the country. The entry portion of the program checks the fingerprints of a foreign visitor and matches them against those in a government database of known or suspected terrorists. The law also requires DHS to establish the exit program by June 2009 using biometric data to verify that visiting foreign nationals leave the U.S. If the program is not implemented before the deadline, VWP could be suspended. DHS completed the entry portion of the system in 2005, but the department has yet to develop the exit portion of the system. (Nextgov, July 16, 2008)

In prepared testimony to the committee, Robert Mocny, Director of the US VISIT Program, testified that the administration published a proposed rule to require commercial airlines to collect the biometric data and transmit that data to DHS within 24 hours. The rule is to comply with a 9/11Act deadline. (Testimony of Richard Barth and Robert Mocny, July 16, 2008) Under questioning by Rep. Jane Harman (D-CA), Mocny admitted that DHS fashioned the proposed rule to require the airlines to collect the data because the DHS lacked the funds to implement a government operated exit program. He told the committee that the costs of deploying a government operated program would run approximately $1.3 billion. (Testimony of Robert Mocny, July 16, 2008)

Rep. Loretta Sanchez (D-CA), who chairs the subcommittee, commented that the proposed rule "not only poses an additional burden on an already stressed industry, but it will also cost the industry over $12 billion to implement the program and to train their employees." Another witness, Douglas Lavin, Regional Vice President, North America International Air Transport Association, agreed with Sanchez's cost estimate. He commented, "This is a core government responsibility that DHS should not be able to offload. Congress never gave DHS the authority to transmit this obligation to the private sector. The airline industry simply can't afford to pay this bill." (Testimony of Douglas Lavin, July 16, 2008)

House Judiciary Committee Tweaks Immigration Law's "Widow Penalty"

On Wednesday, the House Judiciary Committee passed by voice vote a bill designed to eliminate what has become know as the "widow penalty." Under current immigration law, an immigrant spouse of a citizen automatically faces deportation if their spouse dies less than two years after their marriage and before the survivor's permanent residency application was approved. (See, 8 U.S.C. 1151(b)(2)(A)(i)).

The bill would allow a spouse in this situation to avoid deportation by proving, "by a preponderance of the evidence that the marriage was entered into in good faith and not solely for the purpose of obtaining an immigration benefit." (See, H.R. 6034) While the bill was considered non-controversial, one member of the committee, Steve King (R-IA), voiced concerns. Rep. King, while agreeing with the sentiment of the bill, thought more protections were needed to ensure immigrant spouses have good moral character. He told the committee, "A soldier, man or woman, could get drunk in Bangkok, wake up in the morning and be married, as will happen sometimes in places like Las Vegas or Bangkok, be killed the next day, and the spouse who was a product of the evening's celebration would have then a right to claim access to come to the United States on a green card." (Des Moines Register, July 18, 2008) King offered an amendment requiring the married couple to have shared a residence together in the United States, but the amendment was ruled as non-germane by Chairman John Conyers (D-MI), and therefore could not be considered by the committee. (Id.)

The bill will need to be considered by the full House and Senate and signed by the President before becoming law.

Recent Floor Statements

• Rep. Ted Poe (R-TX) commented on The Guilty Go Free Because Our Government Has Blundered (July 17, 2008)
• Rep. Ted Poe (R-TX) commented on A Common Language (July 15, 2008)
• Rep. Joe Baca (D-CA) commented on Support Comprehensive Immigration Reform (July 15, 2008)