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Public Statements

Immigration Reform

Floor Speech

Location: Washington, DC

Mr. PORTMAN. Mr. President, I rise today to talk about the immigration bill that is before the Senate this week. We just had a vote on the Corker-Hoeven amendment. I wish to talk about why it is so important to fix our broken immigration system, but also about a critical issue that I believe has to be addressed in order for the proposed reforms to work.

I wish to begin by acknowledging the hard work of a number of my colleagues, including four Republicans and four Democrats who came together and spent months negotiating the bill we are now considering. They showed a lot of courage in addressing a tough issue. It is a tough issue politically, and it is a difficult issue in terms of the policies.

I also wish to recognize Senators Hoeven and Corker who offered that amendment today. The changes they made in that amendment are a step in the right direction because they provide more enforcement for immigration laws, and we have to guarantee there is meaningful enforcement that is coupled with any legal status for people who are now living in the shadows. I think that enforcement must include strong border protections. That was talked about a lot on the floor today.

It also has to include enforcement of the visa system so an entry-exit system for visas is effective. Finally, it has to include workplace enforcement.

In my view, the enforcement policies in the underlying bill and in the amendment we just voted on are still insufficient to ensure that we ultimately resolve our illegal immigration crisis. Much of the debate over the past week has been about border security, and the most significant provisions in today's amendment are focused on the border. So much so it was described today as being a border surge--employing an additional 20,000 Border Patrol agents and completing 700 miles of fencing that will no doubt make it harder for people to cross the southern border illegally.

Again, I think it is important we have a secure border. But, in reality, no matter how many miles of fence we build and no matter how many agents we station along the border, I truly believe people will continue to come to this country illegally as long as they believe America offers them a better life and a better job.

As we see on subsections of the border where fences have already been constructed, determined people find ways to go under, over, and around it. Some go around those parts of the border altogether to enter our country through a coastline or other less secure parts of the border. We also have to acknowledge that even if we were to prevent every single unauthorized entry at the border, such enforcement would not solve the problem of illegal immigration. Why? Because we are told that 40 percent of those here illegally are visa overstays. In other words, they came legally. They didn't come illegally across the border; they came legally and they have overstayed. They never tumbled a border fence or evaded a Border Patrol agent; instead, they came here legally and simply overstayed their visas.

Having a secure border is important for our immigration system, as I have said. It is also important because of the illegal drug traffic, because of the concern about terrorists coming over our border. So I do support having a more secure border, but I do not think it is sufficient.

Today I want to talk about an issue I think should receive more attention. It has received a lot less than border security over the past few weeks, as we have talked about this legislation. But I think it is even more important to the ultimate success of comprehensive immigration reform, and it is about turning off the jobs magnet--the jobs magnet for those who come here illegally for a better way of life and a better job. It is about effective enforcement of the workplace that I think is absolutely essential to bringing people out of the shadows and to preventing future flows of illegal immigration.

The only way to do that at the workplace is through effective employment verification--a topic that has received little attention during our debate thus far, an area where I believe the current bill and the amendment we voted on tonight fall short.

Policy efforts to eliminate this jobs magnet have been part of the discussion about immigration for decades. Yet our current employment enforcement system has failed to stem the tide of unauthorized workers. I am pleased the underlying bill would mandate the use of an electronic employment verification system called E-Verify. But the bill does little to address the inadequacies of the E-Verify system itself, including the widespread use of false documents.

An effective employment verification system must first verify authorization to work by connecting a worker's name and biographical information to a legal status, and then, second, it has to ensure the worker is who he or she says he or she is--in other words, connecting an individual to a specific name and identity record.

The goal of E-Verify should be to provide for a simple, reliable way for employers to confirm a new employee's work eligibility and to identify that person to prevent illegal immigrants from getting jobs in this country. Until we do that, and deal with the magnet, I do not think we are going to be able to get the kind of enforcement we need.

The current voluntary E-Verify pilot program--this is the pilot program that is out there now that is mandatory in the underlying legislation, but in the pilot program, there is a way to reliably verify authorization to work. I think that actually is fairly effective. But where it has not been successful is in authenticating a worker's identity because it lacks a universal and secure system of verification. The best recent study of the E-Verify pilot, by the way, shows that 55 percent--54 percent--of unauthorized workers are getting through the system. In other words, more than half of those who are here illegally, processed through the E-Verify system, are erroneously found to be eligible for work. The reason is straightforward: Many unauthorized workers obtain employment by committing identity fraud that cannot be detected by E-Verify. So my primary focus over the past few weeks has been on working constructively to develop a bipartisan E-Verify amendment to strengthen the employment verification provisions in S. 744 to help curtail the widespread unauthorized employment that fuels most illegal immigration.

Along with my colleague from Montana Senator Tester, I have submitted an amendment today that strengthens E-Verify in five key respects--first, by enhancing protections against Social Security number fraud and identity theft.

A critical challenge in implementing mandatory E-Verify throughout the country will be combating the fraudulent use of other people's identities in seeking employment authorization. S. 744 seeks to address this challenge by allowing individuals to lock their Social Security numbers for purposes of E-Verify and requiring audits of suspicious E-Verify activities.

The amendment also requires the Social Security Administration to include in all of our annual statements we get from Social Security information about all E-Verify queries that have been placed during that year and for us to have a toll-free telephone number to be able to call folks if there has been a misuse of that number. This will allow us to be on guard against unauthorized workers fraudulently using our personal information to seek and obtain work.

Our amendment also requires the Department of Homeland Security to notify individuals when they identify suspected Social Security number fraud in the E-Verify system.

The amendment also allows the Department of Homeland Security to build on successful pilots programs in Florida and Mississippi to allow E-Verify to validate drivers' licenses and State-issued ID cards with information provided by the State motor vehicle administrations. This step is critical to stopping the pervasive use of fake drivers' licenses in the E-Verify process. But in doing so, we must also protect personal privacy, so the Portman-Tester amendment prohibits DHS from maintaining this information in a Federal database or transmitting that information except for the purposes of E-Verify.

Our amendment also requires regular referrals from the U.S. Citizenship and Immigration Services, USCIS, to Immigration and Customs Enforcement, ICE, identifying fraudulent Social Security number use and fake documents presented during the E-Verify process for investigation and appropriate enforcement action. And it provides for DHS outreach and training to assist employers in preventing identity fraud and strengthening hiring practices. Only with all these tools and efforts can we expect to curtail the widespread use of identity fraud and help prevent unauthorized employment.

The second focus of our amendment is to strengthen the identity authentication aspects of E-Verify and ensure that the system includes robust data privacy protections.

To improve the accuracy of E-Verify, the underlying bill expands the use of a new photo-matching process called Photo Tool, which enables employers to match a new employee's photo ID with a digital E-Verify image. Currently, photo matching is limited to documents for which there is a verified photo in the E-Verify system. Unfortunately, for more than 60 percent of us--60 percent of Americans--there is no such data in a file because we do not have a passport, we do not have an immigration document. The bill, therefore, relies on States to give the Department of Homeland Security access to drivers' license photos. But based on our experience with the REAL ID Act of 2005, very few States are likely to comply.

There is no assurance that all or even most States will voluntarily participate in this kind of a program. So while the underlying bill provides some funding and grants to ease State compliance, we believe the amount they provide may understate the cost to most States.

To help make Photo Tool actually work, our amendment doubles the available grant moneys for States that share department of motor vehicle information and photos, and it ensures the States are fully reimbursed for whatever their actual compliance and participation costs are, providing incentives for States to participate. It also clarifies that Photo Tool will be fully integrated into the E-Verify system and that it must be implemented in time for the rollout of the mandatory E-Verify throughout the country. So it brings Photo Match into the E-Verify system to provide for better enforcement at a time when some workers are going to be provided a legal status.

Senator Tester and I want to be sure the bill's Photo Tool provisions do not lead to the establishment of a Federal database containing additional personal information and photographs of individual Americans. In fact, this will be another thing that is important to States because many States will only participate if assured the data they share will not be misused. So our amendment provides robust data privacy protections, one, clarifying that Photo Tool will be implemented so that E-Verify ``pings'' State DMV databases with individual queries rather than storing such State-provided information--so only when there is an individual request do they ping the DMV, and the DMV provides the photo; two, providing that the State DMV images and information may not be collected, may not be stored, may not be used for any other purpose other than for E-Verify, and may not be disseminated in any way beyond a response to an individual Photo-Tool query; and, three, providing for periodic DHS audits to ensure that the Photo Tool data is not being collected, stored, or improperly disseminated.

To make E-Verify work, we have to be certain employers are able to authenticate the true identify of new hires accurately, quickly, and easily. But in doing so through methods such as Photo Tool match, we must protect privacy and safeguard personal information. We have done that in this amendment.

The third way our amendment strengthens E-Verify is by enhancing additional security measures for identity verification. For new employees whose identity cannot be verified using Photo Tool, which we talked about, the underlying bill provides for the Secretary of Homeland Security to develop ``additional security measures'' designed to authenticate identity. But there is no specified timeframe for implementation and little or no guidance in the way of standards for these additional security measures.

Our amendment clarifies that the additional security measures must be integrated into the E-Verify system for workers who present a document without a corresponding Photo Tool image, that the timing of their implementation is tied to the rollout of mandatory E-Verify, and that failure to verify an identity with the additional security measures results in what is called a Further Action Notice in the E-Verify process, allowing employees to appeal through the established appeals process, where they have to prove they are authorized to work.

Our amendment also specifies standards for design and operation of the additional security measures that are provided to include state-of-the-art technology structured to provide prompt determinations and minimize employer and employee burdens. These specifications are designed to safeguard employee privacy and maximize the accuracy and efficiency of identity determinations. And the amendment permits employers to choose, with advance notice to DHS, to use the additional authentication measures on all new hires rather than only in cases where no digital image is available for a Photo Tool match. For a number of employers that is important.

A fourth section of our amendment clarifies protections for employers who seek to comply with E-Verify procedures in good faith. The underlying bill mandates nationwide rollout of E-Verify and also increases employer sanctions--penalties for employers who do not comply with the mandated employment verification process. The bill's provisions seek to ensure that employers will not engage in unfair immigration-related employment practices, expanding both the grounds and penalties for such practices.

Employers will therefore face the often challenging task of ensuring compliance with these new employment verification obligations while simultaneously avoiding an expanded set of unfair immigration-related employment practices.

Our amendment simply provides that there is a safe harbor, a safe harbor protection to employers that comply in good faith with the requirements of the mandatory employment verification system. The amendment provides that the government must demonstrate by clear and convincing evidence that the employer had knowingly hired an unauthorized worker and employers that take reasonable steps in good faith to avoid unfair immigration-related employment practices are not subject to liability. Again, it is very important for employers to have this be a simple system and one where, if they follow the rules, they have a safe harbor.

Finally, our amendment expedites the E-Verify mandatory rollout to American employers, while preserving the full 5-year timeline for the smallest businesses to make sure we begin rigorous enforcement efforts at the same time millions of current illegal immigrants begin to shift to a legal status.

Our amendment ensures that most American jobs are covered by E-Verify as soon as it is feasible, applying to large employers as early as 2 years after enactment, which is speeding up and expediting the coverage of E-Verify. It includes a new strengthened trigger to ensure timely and full implementation of mandatory E-Verify to all employers, including integrated Photo Tool and additional security measures prior to any adjustment to green card status. So it also has a stronger, more comprehensive trigger.

In each of these ways, this amendment presents an opportunity for this Senate to put forth good policy that will make a real difference if implemented. The amendment's provisions were drafted with input from both Republicans and Democrats. They are the product of a lot of negotiations regarding business groups, labor interests. They were developed and vetted in consultation with the administration and the officials who will actually be tasked with developing and implementing this new system of mandatory employment verification.

I am pleased Senator Tester has joined me in this effort. I know the provisions in our amendment enjoy broad bipartisan support in this Chamber and I think across the Nation. There is a recent poll, for instance, that showed that 82 percent of likely voters think businesses should be required to use E-Verify to determine if a new employee is legal.

The question before this body is a simple one: Will our comprehensive immigration reforms include serious, meaningful, and effective E-Verify provisions that along with the border security measures will actually stem the tide of illegal immigration or will we fail to eliminate the jobs magnet that makes it harder to bring people out of the shadows and continue to provide a strong incentive for people to come here illegally.

Today, I am simply asking for a debate and a vote on this critical amendment. My request does not have a political motivation. It is not about whether I support the legislation, although I will not be able to support it without it. It is about making this reform work. If this amendment is not adopted, I do not believe the reforms are going to work, and thus I would not be in a position to support final passage.

I was there during the immigration commission that came up with the proposals that led to the 1986 law, which was the last comprehensive effort that Congress made to overhaul our immigration system. I was a young staffer on what was called the Select Commission on Immigration and Refugee Policy. I spent 2 years there working on these issues and have followed them since and have been involved in immigration policy both in the Congress and in the administration since then.

But back in 1986, I saw the work that went into crafting that legislation and the hope it gave everyone that we were actually going to solve the problem of illegal immigration. Then I saw those hopes dashed, as the reforms failed to work. They failed to address illegal immigration, in part, because they did not effectively implement the workplace enforcement provisions, despite, by the way, strong recommendations from the Commission on which I served. Congress simply--and the administration--subsequently did not implement the kinds of employer sanctions at the time and the kind of enforcement at the workplace that was necessary.

Therefore, they left intact that jobs magnet that has driven so many to come here illegally in the past decades since. I do not want to see a repeat of that failure. That is why I cannot support the legislation without these changes.

We have before us a historic opportunity. We have a real chance to fix this broken system and help curtail illegal immigration. It goes without saying that in the world of partisan politics, such opportunities are pretty rare. Time and again, we have seen reform efforts held hostage by politics. During the last few weeks, we have

been reminded once again how difficult it is to achieve consensus on issues relating to immigration reform.

But this system is broken, the legal system and the illegal system. So we ought to take this opportunity to fix it, but we have to really fix it. It is our responsibility to ensure that the reform legislation passed by the Senate includes policies that will actually work. We are not operating in a vacuum. Not only are the people of this country watching us, but the House of Representatives is watching too.

To ensure that effective workplace enforcement provisions actually become law, E-Verify must be prominent in our efforts and central to our debate. We must make certain the House understands that a more effective E-Verify is perhaps the most crucial element of successful reform and that real workplace enforcement remains a priority during their deliberations, as well as an eventual conference between the House and Senate to work out a final package.

A separate debate and a vote on this amendment is essential to sending that strong message to the House. They need to know one way or the other whether there is strong bipartisan support for E-Verify. I believe there will be. I believe, therefore, that maximizes the chance of it being in the final product. Politically, if supporters want this legislation to have a chance at passing the House and becoming law, we have to make sure it is focused on preventing new illegal immigration as much as it is on adjusting the status of those currently living in the shadows. I do not see how we can make that claim if E-Verify is not strengthened, if it is included only in passing, if turning off the jobs magnet is treated as an afterthought.

That is the sort of thinking that doomed the 1986 reform. It is this sort of approach that may doom this reform before it has even had a chance to be enacted. I am certain everyone engaged in this debate has the best of intentions, but we have to ensure those intentions do not lead us down a path that we repeat the mistakes of 1986.

That is why we have to have a vote on this amendment. The Portman-Tester E-Verify strengthening amendment is critical to the success of this bill. I would like to be able to support reform of a broken immigration system. An immigration system that invites the best and brightest to come to our shores and seek a better life is what this country is all about. It is part of our promise. It is one of the reasons the United States has long been called a beacon of hope and opportunity for the rest of the world.

But I have given assurances to my constituents, the same assurances I know many in this Chamber have made; that is, that I cannot vote for this legislation unless I am convinced it will work. I cannot support reform that does not adequately address the problem of illegal immigration and provides adequate enforcement; at the border, yes, but also at the workplace. Without a stronger E-Verify system, I am convinced this legislation will ultimately fail.

I know many of my colleagues feel the same way. That is why I believe if this amendment were brought up for a vote, it would not only pass, but it would pass with a strong bipartisan vote. I am simply asking for that vote. Let's make strong and effective E-Verify part of immigration reform. Let's accomplish something of which we can be proud, something that fixes the problem this country has struggled with for decades, something we can hold up to the American people of how Washington is supposed to work, as proof the Republicans and Democrats, working together with mutual respect and in a bipartisan fashion, can achieve meaningful results.

That is what this amendment is all about. I certainly hope it can become part of this legislation.

I yield the floor.

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