H. Rept. 108-731 - TO AMEND SECTION 274A OF THE IMMIGRATION AND NATIONALITY ACT TO IMPROVE THE PROCESS FOR VERIFYING AN INDIVIDUAL'S ELIGIBILITY FOR EMPLOYMENT108th Congress (2003-2004)
Committee Report
Hide Overview| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.4306 |
| Committees: | House Judiciary Committee |
Report text available as:
- TXT
- PDF (PDF provides a complete and accurate display of this text.) Tip ?
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-731
======================================================================
TO AMEND SECTION 274A OF THE IMMIGRATION AND NATIONALITY ACT TO IMPROVE
THE PROCESS FOR VERIFYING AN INDIVIDUAL'S ELIGIBILITY FOR EMPLOYMENT
_______
October 5, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4306]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 4306) to amend section 274A of the Immigration and
Nationality Act to improve the process for verifying an
individual's eligibility for employment, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Vote of the Committee............................................ 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 5
Committee Cost Estimate.......................................... 5
Performance Goals and Objectives................................. 5
Constitutional Authority Statement............................... 5
Section-by-Section Analysis and Discussion....................... 5
Agency Views..................................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Markup Transcript................................................ 9
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. IMPROVEMENTS TO EMPLOYMENT VERIFICATION SYSTEM.
(a) In General.--Section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)) is amended--
(1) in paragraph (1)(A), by inserting before ``A person or
entity has complied'' the following: ``Such attestation may be
manifested by either a hand-written or an electronic
signature.'';
(2) in paragraph (2), by adding at the end the following:
``Such attestation may be manifested by either a hand-written
or an electronic signature.''; and
(3) in paragraph (3), by inserting ``a paper, microfiche,
microfilm, or electronic version of'' after ``must retain''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the earlier of--
(1) the date on which final regulations implementing such
amendments take effect; or
(2) 90 days after the date of the enactment of this Act.
Purpose and Summary
H.R. 4306 would amend the Immigration and Nationality Act
to allow employers to comply with a statutory mandate to
prepare and retain Employment Eligibility Verification Forms
(Forms I-9) for their employees electronically.
Background and Need for the Legislation
All employers in the United States are required to complete
and retain Employment Eligibility Verification Forms (Forms I-
9) for each individual they hire for employment in the United
States.\1\ On the form, the employer must identify the
employment eligibility and identity documents presented by the
employee and verify review of those documents. The employer is
not required to file the form with the government, but instead
must keep the form in paper form or on microfiche or microfilm,
either for 3 years after the date of hire or for 1 year after
employment is terminated, whichever is later.
---------------------------------------------------------------------------
\1\ See section 274A of the Immigration and Nationality Act.
---------------------------------------------------------------------------
The form must be made available for inspection by Federal
officials from U.S. Immigration and Customs Enforcement
(``ICE''), the Justice Department's Civil Rights Division, and
the Department of Labor. Government officials who want to
inspect those documents must provide the employer with three
business days' notice of such inspection. The documents must be
made available for inspection either at the place where the
request was made or elsewhere if the employer and government
officials agree.
H.R. 4306 would allow employers to electronically complete
and store I-9 forms. This legislation is a reasonable extension
of the current law. It would not only facilitate employer
compliance, but also enhance enforcement of the law.
In allowing for the electronic storage and retrieval of I-9
forms, the bill would facilitate both an employer's
presentation of documents and the government's inspection of
them. Electronic storage would allow an employer to easily
maintain a single I-9 storage system for its various facilities
throughout the country. This is particularly important to
companies that operate multiple worksites in different states.
Such a system could be accessed from remote locations by
computer and, therefore, could eliminate the practical problem
of unearthing and relocating individual forms each time an
employee is transferred from one facility to another.
Electronically stored I-9 forms could also be retrieved more
quickly than paper, microfiche, or microfilm copies, simply by
entering the employee's name or identification number into a
storage system.
Centralized electronic storage would also facilitate review
of the documents and thereby facilitate enforcement of the
immigration laws by Federal officials. Currently, in many cases
the breadth of the inspection request by the government is
unclear. Often, the difficulty of presenting the documents
circumscribes the scope of the inspection. For example, if an
inspection were scheduled for the I-9 forms of an outlet of a
chain store, generally only forms for that outlet would be
provided. The presentation of documents from the company as a
whole, within the 3 days required by law, would be impractical.
Often, however, the actions of an outlet are indicative of
the actions of the company as a whole. If the company were to
maintain I-9 forms electronically, government officials could
request documents for the company as a whole as easily as they
could for any individual outlet. In addition, inspection of the
forms themselves, which currently requires examination of
writing that is often barely legible, would also be
facilitated. Further, ICE, the Justice Department, or the Labor
Department could request a company that retains I-9 forms
electronically to provide the documents electronically for
inspection purposes. Those Federal officials could then perform
``virtual audits'' of businesses by sending out the requisite
notice, and receiving electronic copies of the forms and other
requested documents without ever going to the place of
employment.
Maintaining sufficient storage space to accommodate hard
copies of I-9 forms has become a significant document
management challenge for many companies, especially in
industries with high turnover rates for employees. This burden
is magnified by the length of the retention requirements for I-
9 forms. Storing forms electronically would greatly alleviate,
if not eliminate, this burden.
Concerns have been raised in the past that paper I-9 forms,
which contain a significant amount of personal information on
the employee (e.g., name, Social Security number, A-number),
can pose a privacy risk if they are improperly used or are
stolen. The largely paper-based nature of those documents is
one of the main reasons for this concern because access to
paper (or even microfiche and microfilm) records can be
restricted only by physical security devices. Access to
electronically stored records can be restricted effectively to
authorized personnel through the use of passwords and access
codes, in addition to physical security measures, such as
locks.
Electronic storage could greatly increase the organization
of Forms I-9, making them both easier to provide and to review.
Regardless of the degree of care exercised in storing paper
documents, inevitably such documents can be lost, misplaced,
misfiled, or physically damaged. This likelihood increases over
time, as physical records are removed from and returned to
files, or transferred from file to file. In addition to the
typical day-to-day damage that paper documents often suffer
over time, such documents are subject to complete loss in the
event of theft or disaster. Companies have raised such losses
as a defense to non-compliance with the retention and
presentation requirements in the past. While no company could
be expected to ``back up'' all their original I-9 forms with
photocopies, securely backing up electronic files has become a
routine part of any company's daily procedures.
The electronic completion and storage of I-9 forms is
consistent with the Government Paperwork Elimination Act
(GPEA).\2\ GPEA gave Federal agencies until October 2003 to
provide citizens the option of conducting business with the
government electronically. The law also provides that
electronic records and their related electronic signatures are
not to be denied legal effect, validity, or enforceability
merely because they are in electronic form. Moreover, the
Electronic Signatures in Global and National Commerce Act \3\
provides that electronic signatures on contracts and most other
legal documents are as valid and enforceable as written
signatures. Under this bill, electronic copies of I-9 forms are
to be considered legally valid and enforceable. Likewise, the
Federal Rules of Evidence provide for the admissibility of
electronically stored data and information, specifying that
printouts of such information constitute ``originals'' for
evidentiary purposes. Under this bill, therefore, electronic
copies of I-9 forms could be submitted in connection with a
criminal or administrative proceeding relating to the
documents.
---------------------------------------------------------------------------
\2\ Pub. L. No. 105-277 (1998).
\3\ Pub. L. No. 106-229 (2000).
---------------------------------------------------------------------------
Hearings
No hearings were held in the Committee on the Judiciary on
H.R. 4306.
Committee Consideration
On September 14, 2004, the Subcommittee on Immigration,
Border Security, and Claims met in open session and ordered
favorably reported the bill H.R. 4306, with an amendment, by a
voice vote, a quorum being present. On September 30, 2004, the
Committee met in open session and ordered favorably reported
the bill H.R. 4306 with an amendment, by voice vote, a quorum
being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that there
were no recorded votes during the Committee's consideration of
H.R. 4306.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee believes that
the bill will have no significant cost for the current fiscal
year, and no significant cost for the next five fiscal years.
The Committee did not receive any estimates of the costs of
this legislation from any other government agency as outlined
in clause 3(d)(2)(B) of rule XIII. The bill does not authorize
programs so the Committee cannot provide a comparison with
relevant programs under current law as outlined in clause
3(d)(2)(C) of rule XIII.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, the
bill would amend the Immigration and Nationality Act to allow
employers to comply with a statutory mandate to prepare and
retain Employment Eligibility Verification Forms (Forms I-9)
for their employees electronically, making more efficient the
retention of the documents and facilitating their review by the
government.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, Sec. 8 of the Constitution.
Section-by-Section Analysis and Discussion
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Improvements to Employment Verification System.
Subsection 1(a) amends the Immigration and Nationality Act
to allow employers to complete Forms I-9 electronically. This
section specifically allows employers and employees to complete
the attestation required under paragraph 274A(b)(1) of the INA
electronically. It also allows employers to retain Forms I-9
electronically, as well as in paper form or on microfilm and
microfiche.
Subsection 1(b) provides that the amendments in this bill
will take effect on the earlier of the date on which final
regulations implementing the regulations take effect, or 90
days after enactment, whichever is earlier.
Agency Views
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SECTION 274A OF THE IMMIGRATION AND
NATIONALITY ACT
unlawful employment of aliens
Sec. 274A. (a) * * *
(b) Employment Verification System.--The requirements
referred to in paragraphs (1)(B) and (3) of subsection (a) are,
in the case of a person or other entity hiring, recruiting, or
referring an individual for employment in the United States,
the requirements specified in the following three paragraphs:
(1) Attestation after examination of
documentation.--
(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Attorney
General by regulation, that it has verified
that the individual is not an unauthorized
alien by examining--
(i) * * *
* * * * * * *
Such attestation may be manifested by either a
hand-written or an electronic signature. A
person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine.
If an individual provides a document or
combination of documents that reasonably
appears on its face to be genuine and that is
sufficient to meet the requirements of the
first sentence of this paragraph, nothing in
this paragraph shall be construed as requiring
the person or entity to solicit the production
of any other document or as requiring the
individual to produce such another document.
(2) Individual attestation of employment
authorization.--The individual must attest, under
penalty of perjury on the form designated or
established for purposes of paragraph (1), that the
individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Attorney General to be hired, recruited, or
referred for such employment. Such attestation may be
manifested by either a hand-written or an electronic
signature.
(3) Retention of verification form.--After
completion of such form in accordance with paragraphs
(1) and (2), the person or entity must retain a paper,
microfiche, microfilm, or electronic version of the
form and make it available for inspection by officers
of the Service, the Special Counsel for Immigration-
Related Unfair Employment Practices, or the Department
of Labor during a period beginning on the date of the
hiring, recruiting, or referral of the individual and
ending--
(A) * * *
* * * * * * *
Markup Transcript
BUSINESS MEETING
THURSDAY, SEPTEMBER 30, 2004
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will come to order. A
working quorum is present. The first item on the agenda is H.R.
4306, to amend section 274A of the Immigration and Nationality
Act to improve the process for verifying an individual's
eligibility for employment. The Chair recognizes the gentleman
from Indiana, Mr. Hostettler, the Chairman of the Subcommittee
on Immigration, Border Security, and Claims, for a motion.
Mr. Hostettler. Mr. Chairman, the Subcommittee on
Immigration, Border Security, and Claims reports favorably the
bill H.R. 4306 with the single amendment in the nature of a
substitute and moves its favorable recommendation to the full
House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point.
[The bill, H.R. 4306, follows:]
Chairman Sensenbrenner. And the Subcommittee amendment in
the nature of a substitute which the Members have before them
will be considered as read, considered as the original text for
purposes of amendment and open for amendment at any point.
[The amendment follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Indiana, Mr. Hostettler, to strike the last word briefly.
Mr. Hostettler. Thank you, Mr. Chairman. I urge my
colleagues to support H.R. 4306, introduced by our colleague
Mr. Cannon, which would allow for the electronic preparation
and storage of employment eligibility verification forms known
as forms I-9.
In the Immigration Reform and Control Act of 1986 Congress
prohibited American employers from hiring aliens who lack
employment authorization. To assist employers in complying with
this requirement, the IRCA mandated that employers review
documents establishing their employees employment authorization
and ensure that the employees attested to the fact that they
were eligible to be employed. Both the employee's attestation
and the employer's review of the documents were to be
memorialized on the form I-9, a document that was introduced by
INS in 1987. Forms I-9 are not filed with the Federal
Government. Rather, to ensure that the employer complied with
the I-9 requirements and to allow the government the
opportunity to ensure that the employer complied with the
immigration and labor laws, IRCA required the employer to
retain the form for 3 years after hire or 1 year after the
employee's termination, whichever was later.
The 1987 regulations implementing this provision allow the
employer to keep those forms in one of three ways, on the
original paper form, on microfilm or microfiche. While there
have been many advances in document preparation and retention
technology in the past 17 years, those changes have not been
reflected in the employment eligibility verification
regulations. As a consequence, there is still only one method
for preparing form I-9 and that is on the original form. There
are still only three ways to retain those forms, on the
original paper, on microfilm and on microfiche.
H.R. 4306 would bring the employment verification process
into the 21st century by allowing employers to complete and
retain forms I-9 electronically. This proposal would benefit
the employer in maintaining records as well as the government
in enforcing the immigration and labor laws. Electronic
preparation and retention will allow employers to improve
efficiency in the hiring process and save resources that they
currently spend on preparing and storing paper forms I-9.
Further, electronic access to forms I-9 will make it easier for
government agents to review those forms and in particular make
it easier for the Department of Homeland Security to enforce
the employer sanctions provisions of the Immigration and
Nationality Act.
For these reasons I urge my colleagues to support H.R. 4306
and yield back the balance of my time.
Chairman Sensenbrenner. Does the gentleman from Virginia
wish to give an opening statement?
Mr. Scott. Mr. Chairman, I would ask unanimous consent that
a statement from the gentlelady from Texas, Ms. Jackson Lee in
support of the bill be entered into the record.
Chairman Sensenbrenner. Without objection, so ordered. And
without objection all Members may include opening statements in
the record at this point.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
The regulation 8 CFR Sec. 274a2(b)(2) requires United States
employers to process and retain I-9 forms for up to 3 years. These
forms are used to verify the employment eligibility and identity of all
employees in the United States. They are required to be kept on paper
or on microfilm or microfiche. This was fine in 1988, when the
regulation was promulgated. Computers were expensive and less widely
used in 1988. Paper records were an unavoidable burden then, and
microfilm and microfiche were being used far more in 1988 than they are
now. It is not appropriate to be restricted to such records in the
computer age that we live in today.
More than half of the benefits applications that are submitted to
the U.S. Citizenship and Immigration Service are filed on its website,
but employers are still required to maintain paper I-9 forms. Employers
should be permitted to keep the Form I-9 in electronic form. In
addition to saving paper and storage space, an electronic storage
system would permit a central reservoir of data and allow retrieval of
I-9 forms in a fraction of the time it takes to retrieve paper,
microfiche, or microfilm copies.
H.R. 4306 simply would allow employers the option of electronic
processing and storage of the I-9 forms. This would include electronic
signatures. I will vote for H.R. 4306.
Thank you.
Chairman Sensenbrenner. Are there amendments? If there are
no amendments, a reporting quorum is not present, and without
objection the previous question is ordered on reporting the
bill favorably.
[Intervening business.]
Chairman Sensenbrenner. The unfinished business is the
motion to report favorably the bill, H.R. 4306, to amend
section 274A of the Immigration and Nationality Act, to improve
the process for verifying an individual's eligibility for
employment, on which the previous question is ordered.
The question occurs on the motion to report--or excuse me.
A reporting quorum is present. The question occurs on the
motion to report the bill, H.R. 4306, favorably. All those in
favor will say aye. Opposed, no. The ayes appear to have it.
The ayes have it. The motion to report favorably is agreed to.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all Members will be given 2 days as provided by the House
rules in which to submit additional, dissenting, supplemental,
or minority views.