Mr. Chairman, as a former member of this subcommittee, I have firsthand knowledge of the efforts that this subcommittee has put into this bill. I was present at the subcommittee's hearings on the complex problem of the illegal alien and heard most of the 186 witnesses which appeared before this subcommittee. With the inclusion of the Department's suggested technical amendments, the enactment of this bill will result in a major step toward reducing the number of illegal aliens in this country. The Department of Justice urges this subcommittee to recommend that the bill, with our suggested changes, be reported.

Mr. EILBERG. Thank you very much, Mr. McKevitt, for a very fine statement.

Before asking you some questions I would just like to refer the subcommittee to rule 5 of the rules of the full committee, which say: "In the course of any hearing each member shall be allowed 5 minutes for the interrogation of a witness, until such time as each member, if he so desires, has had an opportunity to question the witness.”

I suggest as far as possible that we try to observe the rule. And with that observation, I would like to ask you a few questions. Would you review for the subcommittee what the Department has done with respect to requests for the Immigration and Naturalization Service for additional funding. During our hearings last year it was indicated that Commissioner Farrell's request for $150 million was reduced to $129 million by the Department of Justice and by the Office of Management and Budget. I am sure you know and realize that the thrust of this question has to do with the fact that we have been told that if the Service had more help and more personnel, that they could do a more effective job in the area of illegal aliens.

Mr. McKEVITT. I share this concern. Mr. Chairman. And on top of that I have to speak as a former Member of Congress rather than as a member of the Department of Justice on this question. It was brought out in these hearings in the last 2 years that there was a great shortage of agents, and there was a need particularly for agents to enforce the provisions of the law as well as to change the law to give agents even more enforcement powers. And I certainly now cannot come before this committee and take a different tack.

So far as the procedures of the Department itself are concerned, Mr. Gordon is in a better position to review and comment on what action has been taken by Immigration and Naturalization Service as far as the OMB question is concerned.

Mr. GORDON. I am not that close to the budget process either, but I can give you a general outline of the process.

We have, as I understand it, requested additional funds for this year. That request goes to the Department of Justice, which makes a recommendation to OMB. After that OMB makes a budget allocation which is the basis of the President's budget, eventually submitted to Congress. I am not familiar with what stage the budget for next year is at right now.

Mr. EILBERG. Mr. Gordon, can you supply us with a copy of that request for the record?

Mr. GORDON. Of course. We can get you whatever information you would like about it, what is being done and what the present prospects

are.

(The information referred to follows:)

IMMIGRATION AND NATURALIZATION SERVICE APPROPRIATIONS

Mr. EILBERG. Thank you, sir.

Mr. McKevitt, as you will recall, a floor amendment was adopted last year relating to review of civil fines imposed by the Attorney General. You referred to it in your statement. Is judicial review limited to the situation where suit is brought on behalf of the Attorney General to collect an administrative fine?

Mr. McKEVITT. Well, so far as this question is concerned, Mr. Chairman, it would be the review of the special inquiry officer's decision in an appeal to the Board of Immigration Appeals. And the other thing that came up is the question of even further review in a suit by the Government to collect the penalty. Of course, H.R. 982 would provide that the standard of review in such a suit would be whether the special inquiry officer's decision was supported by the substantial evidence on the record considered as a whole.

That would be the test. If you are going to have civil penalties, the question is how far are you going to go in an administrative review? As I say, there is a hearing before the Special Inquiry Officer and then an appeal to the Board of Immigration Appeals. And also, of course, if the Civil Division of the Department of Justice were to bring an action against the employer for the collection of the penalty you would have an opportunity to contest it in the U.S. district court. I think it is just a practical matter of how you want to go in setting up an administrative procedure.

Mr. EILBERG. And pursuing that a little further, what in your opinion is the proper scope of judicial review of such a fine?

Mr. McKEVITT. The Department's position is that in a suit to collect the penalty, the standard of review should be whether, upon the administrative record, the administrative decision is supported by substantial evidence.

Mr. EILBERG. Mr. McKevitt, Social Security will testify later today. But would you please indicate for the committee what has been the practice between the INS and Social Security regarding the implementation of section 137 of Public Law 92-603 relating to the restrictions on the issuance of social security numbers to an alien?

Mr. McKEVITT. I think Mr. Gordon would be best qualified to answer this for you. Mr. Chairman.

Mr. GORDON. Mr. Chairman, there have been conferences with social security agencies; besides the Immigration Service, which participated, were the Department of State, the Department of Labor, and a representative of HEW.

I am informed that several tentative agreements have been reached. concerning the enforcement of H.R. 1, or Public Law 92–603. I under

stand that representatives of Social Security will be testifying today, and I am sure that Social Security will be in a better position to tell you about their future plans.

But I can describe from our standpoint what has been done so far. As you know, the 1972 law, Public Law 92-603, required that when an immigrant comes into the United States he shall obtain a social security number. Steps have been taken to devise a procedure whereby a person who applies for and obtains an immigrant visa, and one who applies for and obtains adjustment of status, will simultaneously submit an application which will be forwarded to Social Security, and a social security number will be issued. When the application is forwarded, it will indicate that he has been lawfully admitted for permanent residence and thereupon the applicant will get the social security number.

A second procedure which is provided for in the bill is where a person who has not obtained a social security number in this fashion, that is, upon a current application for an immigrant visa, when such a person who has not obtained a social security number applies for such a number, then the Social Security Administration will attempt to determine whether he is entitled to work.

Chiefly, I believe this will refer to persons who enter as non-immigrants. And there are discussions concerning the best procedure to identify such persons and to determine whether they are entitled to work.

The representatives of Social Security are here today and will give you the benefit of their thinking. Of course, they are primarily concerned with the enforcement of the law. We are attempting to advise them to coordinate our efforts with theirs.

And then there is a third group, as I understand it, which is still being discussed. And that is foreign-born people who claim to be citizens of the United States. Those, of course, are people with whom the Immigration Service is concerned. And procedures are being devised to require such persons to establish their citizenship claim in an acceptable manner.

Again I say, the representatives of Social Security are here, and they can speak for themselves.

Mr. EILBERG. I would like to ask you further, is it your opinion that the immigrant should be required to provide some evidence of his status, or would his word alone be sufficient evidence that he is legally in the country?

Mr. GORDON. We are talking about people who are coming now and in the future. Those who have come previously and who have already obtained social security cards, there are millions of such people. We are talking about people now coming into the country. The procedure would require that any such persons coming in or seeking adjustments would get a social security number when he gets an immigrant visa or gets adjustment of status. In other words, he would have to establish his lawful right to come into the United States before he can get the number.

Mr. EILBERG. By the presentation of suitable evidence or documents indicating his status, and not simply his verbal say so?

Mr. GORDON. It is simultaneous, because before he gets the visa, he will have to submit the application for a social security number, and before he applies for adjustment of status, he likewise submits the application. And simultaneously a number will be obtained for him. Mr. EILBERG. One more question, Mr. McKevitt, and then I will yield to my colleagues.

As you have stated, the Department does not support the second proviso contained in section 2 of H.R. 982. Is it the Department's position that this proviso will enable an employer to escape liability whenever a prospective employee executes the appropriate form?

Mr. McKEVITT. I think, first of all, that we do support the provision, Mr. Chairman. We do support section 2.

Mr. EILBERG. What about the second proviso in section 2, that is, having to do with supplying of the form?

Mr. McKEVITT. We feel that we not only support the second proviso in section 2, but that the Attorney General should be given the prerogative here to establish the forms. We think that it can be done in such a manner to protect the good-faith employers and also screen out those who act in bad faith. I think it is a better tack to have in this procedure.

Mr. EILBERG. In your statement, you suggest a change which, in effect, deletes the top paragraph-I am referring to page 6 of your statement, if you will just refer to it. It starts, "Accordingly, we recommend." And my question was to the point that you made in that paragraph, wondering why you were suggesting that change. Is it the Department's position that the language that you would strike would enable an employer to escape liability if he has a prospective employee execute the appropriate form under the language as it exists in the bill?

Mr. McKEVITT. Just for clarification, Mr. Chairman, I don't think that we intended to say that we did not support it. We do suggest that the subcommittee consider that language be added to it to require that the forms which would, in effect, immunize the employer be in conformity with regulations prescribed by the Attorney General. We feel that this would be better rather than having the employer supply his own forms.

Mr. EILBERG. You have a sentence which says this change would render unnecessary the second sentence in the proviso. And I understand that to mean that you would just as soon eliminate the second proviso.

Mr. McKEVITT. We are on page 3 of the bill?

Mr. EILBERG. Yes.

Mr. McKEVITT. On page 3, lines 23 through 25, and lines 1 and 2 of page 4, Mr. Chairman, is what we suggest be stricken, because it wouldn't be necessary, because we will, in fact, supply the forms.

Mr. EILBERG. It wouldn't be necessary. And the reason why it wouldn't be necessary is that you feel that the existing approach in the bill is insufficient or inadequate?

Mr. GORDON. May I comment on that?

I think the question assumes something which is not in our proposal, or in the bill. The only purpose of this form is to establish a prima facie case. It does not relieve an employer of liability. Obtain

92-476-73- -3

ing the form will enable him to show prima facie that he has not knowingly employed illegal aliens. The change suggested by Mr. McKevitt and the Department is merely a change to give the Attorney General more flexibility. The Attorney General is not required under our proposal to hand out any particular forms. We contemplated that the Attorney General would suggest to the employer certain things he could do, not necessarily forms which he could hand out, and that the employer might use existing forms. Our thought was that we didn't want the employer to be burdened with too many forms, and perhaps existing forms could be used. And therefore, as proposed, the Attorney General would prescribe by regulation what type of evidence the employer could obtain in order to get this prima facie presumption operative.

Mr. EILBERG. Thank you, Mr. Gordon.

Mr. McKEVITT. May I elaborate just a bit further.

After the word "writing" in line 17 of page 3 of the bill, I suggest that we just put in that language, "in conformity with regulations provided by the Attorney General." If you had that language, then the language starting on line 23, "the Attorney General of the United States shall prepare a form", and so forth, wouldn't be necessary. Mr. EILBERG. Thank you, Mr. McKevitt.

Mr. Keating.

Mr. KEATING. Mike, it is good to see you here today. And I congratulate you on your statement. And I look further to working with you on this committee.

Mr. McKEVITT. Thank you. Mr. Keating. And vice versa.

Mr. KEATING. On page 2 of your statement you indicated that aliens who are not defined as immediate relatives, and who accept unauthorized employment, would be ineligible for an adjustment of status. Why do you exempt immediate relatives?

Mr. McKEVITT. Mr. Gordon?

Mr. GORDON. I can answer that.

This is a humane provision. The immediate relative is a spouse, parent, or child of an American citizen. And our feeling is that penalizing the alien for accepting employment would perhaps break up the family situation, or require his spouse to go on relief if he couldn't work. So we didn't want to penalize those who had families here. We thought that would be too harsh. Our proposal was a humanitarian one.

Mr. KEATING. Let me just ask you: Do you oppose the forfeiture of the vehicles used in the transportation of illegal aliens? It comes up on page 8.

Mr. McKEVITT. Do we oppose the forfeiture of the vehicles?

Mr. KEATING. Yes.

Mr. McKEVITT. No.

Mr. KEATING. You favor it?

Mr. McKEVITT. Right.

Mr. KEATING. Now, with regard to Social Security and their longrange programs for the utilization of automated file to identify potential illegal aliens, how much longer will it be until this is operational?

Mr. GORDON. Social Security will be able to speak to that. It is being discussed. And I suspect it is going to be a long-range proposition. But I think Social Security is in the best position to answer that.