proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters, the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided herein, hereby contained in force and effect.

SEC. 6. This Act shall become effective on the first day of the first month after the expiration of ninety days following the date of its enactment.

Mr. EILBERG. The first witness is the Honorable James D. McKevitt, Assistant Attorney General for Legislative Affairs, Department of Justice.

TESTIMONY OF JAMES D. (MIKE) McKEVITT, ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; ACCOMPANIED BY CHARLES GORDON, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, AND MICHAEL DOLAN, MEMBER, OFFICE OF LEGISLATIVE AFFAIRS OF THE DEPARTMENT OF JUSTICE

Mr. McKEVITT. With me I would like to introduce Mr. Charles Gordon, general counsel of the Immigation and Naturalization Service, and Mr. Michael Dolan, who is a member of my Office of Legislative Affairs of the Department of Justice.

Mr. EILBERG. I just want to introduce you as a former colleague of ours on this subcommittee. You are energetic, and you are very competent, and you made a real contribution to this subcommittee. I know that I individually will miss you during the deliberations of this subcommittee. We know that you know what you are talking about, because you demonstrated it while you were working with us and we are very pleased to have you, Mike.

Mr. McKEVITT. Thank you, Mr. Chairman. One of the prime things I miss about being on this subcommittee is the chairman. I appreciate your gracious words.

I am glad to see that the subcommittee is also graced with new and distinguished Members. Congresswoman Holtzman and Congressmen Wiggins and Keating. And I think it is going to be a very effective subcommittee this year.

I am pleased that Mr. Seiberling made the front page of the Wall Street Journal this morning with his funny little bill for the small winemaker. I am surprised that that wasn't picked up a long time ago. Mr. SEIBERLING. Thank you.

Mr. McKEVITT. Having known the work the subcommittee has done in the last 2 years, in submitting the statement, Mr. Chairman and members of the committee, I would like to point out that I think it was the obligation of the Department of Justice to comment specifically as to its position and support or suggest possible amendments to the proposed legislation before this subcommittee.

And without further ado, because most of the comments are of a technical nature, I would like to read my statement rather than do a summary.

Mr. Chairman and members of the subcommittee, it is a pleasure to return to Subcommittee No. 1 to present the views of the Department of Justice on H.R. 982, a bill amending the Immigration and Nationality Act. H.R. 982, introduced by Chairman Rodino, is almost

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identical with H.R. 16188, which passed the House on September 12, 1972, but was not considered by the Senate.

Although the major purpose of the bill is to impose penalties on employers who knowingly hire illegal aliens, the bill would also substantially amend section 245 of the act, the adjustment of status authorization, add a new section requiring the Department of Health, Education, and Welfare to disclose the names of illegal aliens receiving public assistance benefits, and amend 18 U.S.C. 1546 prohibiting the misuse of entry documents. I will discuss these provisions in the order they appear.

Section 1 of H.R. 982 makes several amendments to section 245 of the act which presently authorizes Eastern Hemisphere nonimmigrants to adjust their status to that of a permanent resident alien. without leaving the United States to secure an immigrant visa. The language of existing subsection (a) relating to the ineligibility of alien crewmen would be transferred to subsection (c) which lists the other disqualifications. Subsection (a) is also amended to establish eligibility for an immigrant visa at the time the application is filed rather than at the time it is approved. The Department agrees that the applicant should not be penalized for administrative delays not attributable to him.

Section 1 of the bill makes three amendments to subsection 245 (c). First, aliens who are not defined as immediate relatives and who accept unauthorized employment prior to filing an application would be ineligible for an adjustment of status. The Department supports this attempt to limit unauthorized employment by nonimmigrants. The second change in subsection (c) would disqualify from adjustment aliens admitted in transit without visa. Although a departmental regulation prescribing such ineligibility has been upheld in the second circuit, Mak v. INS, 435 F. 2d 728 (1970), the Department favors legislative recognition of this disqualification.

The third major change to subsection 245 (c) would restore adjustment of status eligibility to Western Hemisphere aliens. The present disqualification, enacted in 1965, has created many hardships and leads to unnecessary alien expense by requiring the alien to return to his country of origin to apply for an immigrant visa from a consular office. The number of Western Hemisphere aliens granted adjustment would be charged against the Western Hemisphere numerical limitation by subsection 245 (b).

I would like to invite the subcommittee's attention to the fact that the same reasons for removing the Western Hemisphere exception to the section 245 adjustment of status provision apply with equal force to the Western Hemisphere exception to the section 344 suspension of deportation authorization. Accordingly, the Department suggests that statutory consistency and equality of treatment would be promoted by deleting clause (3) of subsection 244 (f).

Section 2 of H.R. 982 amends section 274 of the act to construct an elaborate three-tiered procedure for imposing sanctions on employers who knowingly employ aliens illegally in the United States. And, of course, this is where the Department's position changes to support the committee bill, in contrast with the position that the Department took in the 92d Congress.

This subcommittee has estimated the number of aliens illegally in this country to be between 1 and 2 million. In fiscal year 1972, the Immigration and Naturalization Service located 505,949 deportable aliens, a 20-percent increase over fiscal year 1971, and a number exceeding by 121,000 the number of aliens admitted as immigrants in fiscal year 1972.

These illegal aliens are generally industrious, hardworking people who enter this country for the purpose of earning wages, accumulating savings and returning with or sending their savings home. Approximately 85 percent of all the deportable aliens located in fiscal year 1972 were citizens of Mexico. The economic disparity between the United States and Mexico cannot be denied. In rough figures, the per capita income of the poorest 40 percent of the population of Mexico is less than $150 per year.

I wish to emphasize, however, that the Department does not view the illegal alien problem as a so-called Mexican problem. Substantial numbers of illegals come from other countries, as this subcommittee learned in its hearing in the last 2 years.

The wages exported from this country are often untaxed and allegedly contribute to our balance-of-payment problem. Many illegal aliens displace citizens and permanent resident aliens from employment; those illegal aliens unable to find employment become a burden on public assistance programs either situation only aggravates the plight of the lower income American. Illegals who enter this country without inspection may also present a health hazard since their immunization levels are low.

Not only is the employment of unlawful aliens not illegal under present law, but such employment actually appears to be condoned by the existing proviso in section 274(a) (4) that employment shall not be deemed to constitute the harboring of illegal aliens. Of course, this bill would delete that proviso. The present lawful employment of unlawful aliens not only represents an economic magnet attracting workers to our country, but also provides an economic incentive for the employer to hire illegal aliens who are often highly productive and willing to work for wages and under working conditions that are not attractive to American workers.

H.R. 982 would amend subsection 274 (b) to declare it to be unlawful for an employer, agent, or person who for a fee refers an alien for employment, knowingly to employ or refer for employment any alien who has not been lawfully admitted for permanent residence, unless such employment is authorized by the Attorney General. The Department of Justice believes that such a prohibition on the employment of illegal aliens will, by eliminating the economic incentive for aliens to enter this country unlawfully, by a major Government advance toward stemming the influx of illegal aliens.

As amended, section 274 (b) (1) would contain two provisos. The first would stipulate that an employer, referrer, or agent shall not be deemed to have violated the subsection if he has made a bona fide inquiry whether the applicant is a citizen or an alien, whether he is lawfully admitted for permanent residence.

A second proviso in subsection 274(b) (1) would provide that an employer, referrer, or agent can demonstrate prima facie proof of

such a bona fide inquiry by securing a signed statement from the person employed or referred that such person is a citizen, a permanent resident alien, or an alien authorized by the Attorney General to accept employment. The proviso also directs the Attorney General to prepare and furnish forms for the use of employers, agents, or referrers in obtaining such written statements.

The Department of Justice believes that unless they are given this opportunity to obtain proof of compliance with the new statute, employers may avoid hiring applicants with a foreign accent or surname. However, the Department also feels that the prohibition against the employing of illegal aliens may be thwarted if an employer can immunize himself from prosecution merely by obtaining the alien's signature on a piece of paper.

Accordingly, we recommend that the written statement be on a form prescribed by the Attorney General, and, therefore, suggest that after the word "writing" on line 17 of page 3, the following language be inserted: "in conformity with regulations prescribed by the Attorney General,". This change would render unnecessary the second sentence in the proviso requiring the Attorney General to prepare the forms for the written statements. This deletion would allow the Attorney General to arrange for the utilization of existing forms, such as the W- Income Tax Withholding Form or appropriate social security documents.

The three-step penalty structure authorized by the amended section 274 would begin with the Attorney General or his agent serving a citation informing the offending employer, agent, or referrer of an apparent violation. A second offense within 2 years of the service of such a citation would authorize the Attorney General to assess a civil penalty of not more than $500 for each alien in respect to whom a such a citation would authorize the Attorney General to assess a civil penalty would expose the offender to a criminal conviction with a maximum punishment of $1,000 fine and 1-year imprisonment for each alien in respect to which a violation occurs.

I have several comments about the civil penalty provision. As this subcommittee knows, the Department has, in the context of this bill, believed that a civil penalty threshold to a criminal prosecution would unnecessarily complicate and obstruct the enforcement of this bill, and, therefore, we favored judicial rather than administrative sanctions. In the face of the manifested preference of this committee and the House of Representatives for a civil penalty sanction, the Department of Justice will no longer assert its objection to the civil penalty provision.

We do suggest, however, that line 14 of paragraph (3), the civil penalty provision, be amended to read: "not more than $500 for each alien in respect to whom any violation of paragraph (1) occurs." The change would conform the language of the civil penalty provision to that used in the criminal sanction, subsection (c).

This bill's predecessor. H.R. 16188, was amended on the floor of the House to make the civil penalty hearing procedure subject to the requirements of 5 United States Code 554, the adjudications provision of the Administrative Procedure Act. Although Immigration and Naturalization Service proceedings, including exclusion and depor

tation hearings, are not subject to the APA (See Marcello v. Bonds, 349 U.S. 302 (1955)), exclusion and deportation proceedings usually reflect APA procedure. The chief difference is in the manner of selection of the hearing officers. Section 242 (b) of the Immigration and Nationality Act requires that deportation proceedings be conducted by special inquiry officers, officials who are not selected under the APA. The amended section 274 (b) (4) requirement that the civil penalty hearing by "conducted before an immigration officer designated by the Attorney General" and the exclusion reference to section 554 of title 5, United States Code, make it clear to the Department that these hearings can be conducted before special inquiry officers. We would suggest a specific amendment if the intent of the subcommittee is otherwise.

Subsection (d) of the amended section 274 would provide for the seizure and forfeiture of vehicles used in violation of existing subsection (a), prohibiting the bringing in or harboring of illegal aliens, and the new subsection (b), barring the employment or referral of illegal aliens. Although the Department supports this amendment, we note that because the forfeiture provision is triggered by a "violation," it is available at the citation and civil penalty as well as the criminal stage. If this is not the intent of the draftsman, an amendment would be in order.

Another amendment adopted during the floor debate on last year's bill would add a new section 274A which would require officers and employees of the Department of Health, Education, and Welfare to disclose to the Service the name and most recent address of any alien not lawfully in the United States who is receiving welfare benefits. Because there is no present procedure under which HEW employees can determine whether a welfare recipient is lawfully in the United States, this provision will be of little use in locating illegal aliens. However, the need for denying social security cards to illegal aliens, and the identification of such aliens through social security records, is a matter of widespread public concern. Because the Department supports efforts in this direction, we support section 3 of H.R. 982. The Service is already working with the Social Security Administration to implement section 137 of the Social Security Amendments of 1972, Public Law 92-603, 86 stat. 1329, which requires, inter alia, that social security account applicants submit evidence of their citizenship or alien status. I know this is a matter of genuine concern on the part of the subcommittee.

Section 4 of the bill amends 18 United States Code 1546 which imposes criminal penalties for falsifying certain immigration documents, or for use of such falsified documents. The amendment would expand the present language to make it applicable to any "border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay in the United States." Because this amendment is necessitated by the restrictive reading of the present statute announced in United States v. Campos-Serrano, 404 U.S. 293 (1971), the Department of Justice urges its enactment.

The Department also supports sections 5 and 6 of the bill which provide a saving provision and prescribe a delayed effective date.