Securing the Border Is No Easy Feat

Securing America's borders is no easy matter. Undocumented workers do not just walk across the borders but come in legally, by car, air, and ship, and then overstay their visas. Some estimate that 40 percent of undocumented workers came to the country legally and did not leave after their visas expired.

Coping with visa overstays, as they are known, has different challenges than stopping people from crossing the border. To keep people from crossing without permission, governments can build fences, and patrol with security forces, video cameras, and drones. Countries as different as Israel and North Korea manage to do this-Israel to keep potential terrorists out, North Korea to keep its people in.

What is far harder is making sure that people who enter legally also leave. People come on business, for tourism, as students, and we want to encourage them to do so. But we also want to make sure they do not stay on expired visas.

The bipartisan Senate immigration bill, the Border Security, Economic Opportunity, and Immigration Modernization Act, contains provisions that would improve security as well as granting provisional work status to 11 million undocumented workers after background checks and payment of penalties. The bill funds barriers and police protection at the borders, as well as requiring biometric data on immigrants.

Knowing who is in the country is vital because America is engaged in a global war on terrorism and many want to do us harm. (See World Trade Center attacks; shoe bomber; underwear bomber; Times Square bomber; Benghazi attacks; Boston bombers; etc.)

Opponents are trying any way they can to derail the bill, and they may succeed. Last week the Heritage Foundation issued a discredited report stating that the immigration bill would cost America $6.3 trillion. Numerous other sources, including the nonpartisan Congressional Budget Office and President George W. Bush's Council of Economic Advisers, concluded the opposite, that immigration would raise additional revenue. Jason Richwine, one of the authors of the Heritage report, resigned on Friday after derogatory comments about Hispanics were found in his Harvard doctoral dissertation.

The latest slur on the Senate bill is the false accusation that it requires biometric data to be collected from U.S. citizens and placed in a massive government database. The collection of biometric data from U.S. citizens by federal or state governments is not in the Senate bill.

The immigration bill attempts to make sure that those who enter legally can be checked against registers of international criminals and terrorists. Before applying for provisional legal status, and again before applying for temporary resident status, the bill requires that immigrants submit biometric data, such as fingerprints and iris scans, so that they can be identified to authorities.

These provisions are being attacked by liberal and conservative opponents of the bill, such as the American Civil Liberties Union and the Competitive Enterprise Institute. CEI analyst David Bier stated in Wired.com and on his organization's blog that the bill funds a biometric database of all Americans.

But in a thorough search of the bill, I found no reference to collection of biometric data from American citizens. In a phone conversation with me on Monday, Bier cited a provision on page 468 of the bill that provides funding for states to enable them to share drivers' license information with the Department of Homeland Security. Bier told me that a photo was defined as biometric information under 46 United States Code 70123.

The definition of mobile biometric identification under 46 USC 70123 states that "For the purposes of this section, the term "biometric identification" means use of fingerprint and digital photography images and facial and iris scan technology and any other technology considered applicable by the Department of Homeland Security."

The law's language is poorly worded and easy to misunderstand, so Bier read "fingerprint and digital photography images" as just digital photography. It is clear that a photo is not biometric information. Otherwise, any photo album would be a collection of biometric information. Biometrics refers to certain physiological traits that are unique to individuals, such as fingerprints, iris scans, or DNA.

The bill proposes funding to enable the federal government to purchase drivers' license photos from states for the E-Verify program, used by some employers to check whether job applicants are legal. But this is not the same as funding a biometric database for U.S. citizens.

Furthermore, under the bill, the federal government can only access state drivers' license photos if the state and the federal government enter into an agreement to share them. It would be unconstitutional for Congress to mandate individual states to turn this information over to the federal government.

Under the expanded E-Verify system job applicants without photos will be asked questions about their work history and places of residence. This is to prevent theft of their Social Security numbers and identities.

In 2012 there were 409,000 employers enrolled in E-Verify, and 20.2 million cases checked in E-Verify. Total nonfarm payroll employment in 2012 was 133.7 million, so a maximum of15 percent of jobs were checked by E-Verify (some positions might have been checked multiple times before being filled). However, looking at E-Verify as a percent of new hires, 52 million in 2012, shows that as many as 38 percent of new hires were checked by the system. Larger employers are more apt to use the system, looking for a safe harbor to shield themselves from liability.

E-Verify is not foolproof. In a study performed by the Maryland consulting firm Westat, based on data from September 2007 to June 2008, more than half of undocumented workers run through the E-Verify system received a false positive of work eligibility. In other words, the system picked up about half of undocumented workers. With new revelations about the role of the Internal Revenue Service in dealing with tax-exempt organizations, Americans' trust in government institutions will likely reach a new low.

A more effective way to keep track of foreigners visiting America would be to make vastly more visas available (with the collection of biometric information) and make it simpler for holders of visas to renew them when they expire-just as is the case with drivers' licenses. Practically anyone can get a driver's license, and renewing it takes a trip to the Department of Motor Vehicles and payment of a five-year fee. If the visas could be renewed online, or at any Federal Express office, compliance would be relatively high. Immigrants would not receive any government benefits, and would be charged for the renewal of the visas.

If the visas were not renewed, the government could levy a fine-just like fines for driving with an expired license. A penalty of $100 daily for the first three months and $300 per day thereafter would be a deterrent. People would know that if they were caught they would have to pay and that the fee would be a liability if they wanted to stay or reenter the country.

By broadening the availability of visas, making renewal simple, and fining those who are in the country without them, it would be easier to keep track of those who overstay their visas. Coupled with more fencing and border patrols, these measures would strengthen American security.