    [Senate Hearing 113-875]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-875

                         THE BORDER SECURITY, ECONOMIC
                          OPPORTUNITY, AND IMMIGRATION
                           MODERNIZATION ACT, S. 744

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                             April 22 and 23, 2013

                                   __________

                              Serial No. J-113-15

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

             Available via the World Wide Web: http://www.fdsys.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking
    CHUCK SCHUMER, New York                  Member
    DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
    SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    AL FRANKEN, Minnesota                JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
                Bruce A. Cohen, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                       MONDAY, APRIL 22, 2013, 10:03 A.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................   408

                                   WITNESSES

    Witness List.....................................................   175
    Benjamin, Fred, Chief Operating Officer, Medicalodges, Inc.,
      Coffeyville, Kansas............................................    49
        prepared statement...........................................   299
    Camarota, Steven A., Ph.D., Director of Research, Center for
      Immigration Studies, Washington, DC............................   111
        prepared statement...........................................   388
    Conner, Charles, President and Chief Executive Officer, National
      Council of Farmer Cooperatives, Washington, DC.................     8
        prepared statement...........................................   183
    Crane, Chris, President, National Immigration and Customs
      Enforcement Council 118, American Federation of Government
      Employees, Washington, DC......................................   109
        prepared statement...........................................   383
    Eastman, Alyson, President, Book-Ends Associates, Orwell, Vermont     9
        prepared statement and attachment............................   196
    Fleming, David, Ph.D., Senior Pastor, Champion Forest Baptist
      Church,
      Houston, Texas.................................................    72
        prepared statement...........................................   322
    Gupta, Neeraj, Chief Executive Officer, Systems In Motion,
      Newark,
      California.....................................................    47
        prepared statement...........................................   294
    Hira, Ronil, Ph.D., P.E., Associate Professor of Public Policy,
      Rochester
      Institute of Technology, Rochester, New York...................    45
        prepared statement...........................................   276
    Jacoby, Tamar, President, ImmigrationWorks USA, Washington, DC...    40
        prepared statement...........................................   244
    Judson, Rick, Chairman of the Board, National Association of Home
      Builders, Washington, DC.......................................    42
        prepared statement...........................................   253
    Kephart, Janice L., former Border Counsel, 9/11 Commission, and
      Principal, 9/11 Security Solutions, Washington, DC.............   107
        prepared statement...........................................   361
    Kobach, Hon. Kris W., Secretary of State, State of Kansas,
      Topeka, Kansas.................................................    78
        prepared statement...........................................   347
    Kolbe, Hon. Jim, a former Representative in Congress from the
      State of Arizona...............................................    38
        prepared statement...........................................   240
    Krikorian, Mark, Executive Director, Center for Immigration
      Studies,
      Washington, DC.................................................    74
        prepared statement...........................................   324
    Lichter, Laura L., Esq., President, American Immigration Lawyers
      Association, Denver, Colorado..................................    76
        prepared statement...........................................   330
    Murguia, Janet, President and Chief Executive Officer, National
      Council of La Raza, Washington, DC.............................    70
        prepared statement...........................................   315
    Norquist, Grover, President, Americans for Tax Reform,
      Washington, DC.................................................   113
        prepared statement...........................................   399
    Pacheco, Maria Gabriela ``Gaby,'' Immigrant Rights Leader,
      Director, Bridge Project, Miami, Florida.......................    68
        prepared statement...........................................   310
    Rodriguez, Arturo S., President, United Farm Workers of America,
      Keene, California..............................................     6
        prepared statement...........................................   178
    Shurtleff, Mark L., Partner, Troutman Sanders LLP, and former
      Attorney General for the State of Utah, Washington, DC.........   103
        prepared statement...........................................   353
    Smith, Brad, General Counsel and Executive Vice President, Legal
      and
      Corporate Affairs, Microsoft Corporation, Seattle, Washington..    43
        prepared statement...........................................   259
    Smith, Megan M., Commissioner, Vermont Department of Tourism and
      Marketing, Montpelier, Vermont.................................    36
        prepared statement...........................................   233
    Vidal, Hon. Guillermo ``Bill,'' President and Chief Executive
      Officer, Hispanic Chamber of Commerce of Metro Denver, and
      former Mayor of Denver,
      Colorado.......................................................   105
        prepared statement...........................................   358

                                   QUESTIONS

    Questions submitted to Fred Benjamin by Senator Sessions.........   421
    Questions submitted to Steven A. Camarota, Ph.D., by:
        Senator Grassley.............................................   410
        Senator Sessions.............................................   423
    Questions submitted to Charles Conner by Senator Sessions........   424
    Questions submitted to Chris Crane by:
        Senator Grassley.............................................   411
        Senator Sessions.............................................   425
    Questions submitted to Neeraj Gupta by Senator Sessions..........   426
    Questions submitted to Professor Ronil Hira by:
        Senator Grassley.............................................   412
        Senator Sessions.............................................   427
    Questions submitted to Tamar Jacoby by:
        Senator Lee..................................................   418
        Senator Sessions.............................................   428
    Questions submitted to Rick Judson by Senator Sessions...........   429
    Questions submitted to Janice L. Kephart by:
        Senator Grassley.............................................   413
        Senator Lee..................................................   419
        Senator Sessions.............................................   430
    Questions submitted to Hon. Kris W. Kobach by:
        Senator Grassley.............................................   414
        Senator Lee..................................................   420
        Senator Sessions.............................................   431
    Questions submitted to Hon. Jim Kolbe by Senator Sessions........   432
    Questions submitted to Mark Krikorian by:
        Senator Grassley.............................................   415
        Senator Sessions.............................................   433
    Questions submitted to Laura L. Lichter by Senator Sessions......   434
    Questions submitted to Janet Murguia by Senator Sessions.........   435
    Questions submitted to Grover Norquist by Senator Sessions.......   436
    Questions submitted to Arturo S. Rodriguez by Senator Sessions...   438
    Questions submitted to Mark L. Shurtleff by Senator Sessions.....   439
    Questions submitted to Brad Smith by:
        Senator Leahy................................................   416
        Senator Lee..................................................   417
        Senator Sessions.............................................   422
    Questions submitted to Hon. Guillermo ``Bill'' Vidal by Senator
      Sessions.......................................................   440

                                    ANSWERS

    Responses of Fred Benjamin to questions submitted by Senator
      Sessions.......................................................   441
    Responses of Steven A. Camarota, Ph.D., to questions submitted
      by:
        Senator Grassley.............................................   447
        Senator Sessions.............................................   450
    Responses of Charles Conner to questions submitted by Senator
      Sessions.......................................................   451
    [Note: At the time of printing, after several attempts to obtain
      responses to the written questions, the Committee had not
      received any communication from Chris Crane.]
    Responses of Neeraj Gupta to questions submitted by Senator
      Sessions.......................................................   452
    Responses of Professor Ronil Hira to questions submitted by:
        Senator Grassley.............................................   453
        Senator Sessions.............................................   460
    Responses of Tamar Jacoby to questions submitted by:
        Senator Lee..................................................   462
        Senator Sessions.............................................   464
    Responses of Rick Judson to questions submitted by Senator
      Sessions.......................................................   468
    Responses of Janice L. Kephart to questions submitted by:
        Senator Grassley.............................................   469
        Senator Lee..................................................   473
        Senator Sessions.............................................   481
    [Note: At the time of printing, after several attempts to obtain
      responses to the written questions, the Committee had not
      received any communication from Hon. Kris W. Kobach.]
    Responses of Hon. Jim Kolbe to questions submitted by Senator
      Sessions.......................................................   483
    [Note: At the time of printing, after several attempts to obtain
      responses to the written questions, the Committee had not
      received any communication from Mark Krikorian.]
    Responses of Laura L. Lichter to questions submitted by Senator
      Sessions.......................................................   484
    Responses of Janet Murguia to questions submitted by Senator
      Sessions.......................................................   485
    Responses of Grover Norquist to questions submitted by Senator
      Sessions.......................................................   487
    Responses of Arturo S. Rodriguez to questions submitted by
      Senator Sessions...............................................   491
    Responses of Mark L. Shurtleff to questions submitted by Senator
      Sessions.......................................................   492
    Responses of Brad Smith to questions submitted by:
        Senator Leahy................................................   445
        Senator Lee..................................................   442
        Senator Sessions.............................................   446
    Responses of Hon. Guillermo ``Bill'' Vidal to questions submitted
      by Senator Sessions............................................   493

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Abrams, Robert, former Attorney General of the State of New York,
      et al., April 21, 2013, letter.................................   520
    Asian and Pacific Islander American Health Forum (APIAHF) et al.,
      Washington, DC, statement......................................   495
    Community College Consortium for Immigrant Education (CCCIE),
      Valhalla, New York, statement..................................   506
    Community Council of Idaho, Inc., April 19, 2013, letter.........   512
    Farmworker Association of Florida, Inc., Apopka, Florida,
      statement......................................................   524
    Farmworker Justice, Washington, DC, statement....................   515
    Human Rights Campaign, Washington, DC, statement.................   527
    Immigration Equality, Washington, DC, et al., statement..........   582
    inSPIRE STEM USA, April 23, 2013, letter.........................   534
    inSPIRE STEM USA member organizations, list......................   536
    Kelly Services, Inc., Troy, Michigan, statement..................   530
    Leadership Conference on Civil and Human Rights, The, Washington,
      DC, statement..................................................   593
    List of Faith-Based Organizations................................   601
    Microsoft Corporation, Redmond, Washington, June 27, 2011, letter   494
    National Association of Attorneys General, Washington, DC,
      statement......................................................   539
    National Association of Former Border Patrol Officers (NAFBPO),
      Brunswick, Georgia, April 22, 2013, press release..............   537
    National Farm Worker Ministry (NFWM), St. Louis, Missouri,
      statement......................................................   562
    National Governors Association (NGA) and the Council of Chief
      State School Officers (CCSSO), April 24, 2013, letter..........   510
    National Immigration Forum, Washington, DC, statement............   543
    New York City Bar Association, New York, New York, Reduced
      Detention, statement...........................................   546
    New York City Bar Association, New York, New York, Right to
      Counsel, statement.............................................   554
    Rights Working Group (RWG), Washington, DC, statement............   575
    United Migrant Opportunity Services/UMOS Inc., Milwaukee,
      Wisconsin, statement...........................................   590
    University of Southern California (USC), Center for the Study of
      Immigrant Integration (CSII), Los Angeles, California,
      statement......................................................   566

                       TUESDAY, APRIL 23, 2013, 9:33 A.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   135
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   133
        prepared statement...........................................   611

                                    WITNESS

    Witness List.....................................................   602
    Napolitano, Hon. Janet, Secretary, U.S. Department of Homeland
      Security, Washington, DC.......................................   137
        prepared statement...........................................   603

                                   QUESTIONS

    Questions submitted to Hon. Janet Napolitano by:
        Senator Grassley.............................................   613
        Senator Hatch................................................   622
        Senator Lee..................................................   624

                                    ANSWERS

    Responses of Hon. Janet Napolitano to questions submitted by:
        Senator Grassley--Redacted...................................   626
        Senator Hatch................................................   678
        Senator Lee..................................................   688

                    MISCELLANEOUS SUBMISSION FOR THE RECORD

    Asian American Center for Advancing Justice and the Asian
      American Justice Center (AAJC), Washington, DC, statement......   697

    .
                        THE BORDER SECURITY, ECONOMIC
                          OPPORTUNITY, AND IMMIGRATION.
                           MODERNIZATION ACT, S. 744

                                  ----------

                             MONDAY, APRIL 22, 2013

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:03 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Feinstein, Schumer, Durbin,
    Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Grassley,
    Sessions, Graham, Cornyn, Lee, Cruz, and Flake.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Chairman Leahy. Good morning. We welcome everybody here,
    and I am glad we have so many who are here. We have many others
    who are watching. We are, of course, live streaming this on the
    Judiciary website, as I always do, and I assume that others are
    covering it.
        I would note there are many people here. There are some
    very strong feelings, and I appreciate that. Certainly there
    are T-shirts that give different views, and you have every
    right to do that. But I would urge, as I always do in hearings,
    whether it is supportive of my views or opposed to my views,
    that there will be no demonstrations, no blocking of people who
    have waited in line for a long time to be here at this hearing.
    We want to make sure that you are respectful of those near you
    and especially behind you.
        We resumed the hearings on comprehensive immigration reform
    legislation last Friday. Secretary Napolitano was scheduled to
    appear then, but I think everybody understands that with what
    happened in Massachusetts, she could not be here. She will be
    before the Committee tomorrow morning.
        Today's hearing is our fifth immigration hearing this year.
    It will add to the more than 40 hearings--four-zero--that
    Senator Schumer, Senator Durbin, Senator Coons, Senator Hirono,
    and I have chaired during the last few Congresses on these
    matters.
        On Friday, we received testimony about the economic impact
    of the bill. Today we will hear about how the bill will impact
    our farming, construction, service, and technology industries.
    We will hear the views of those who have long fought for
    immigration reform and those who oppose the proposal. We will
    hear from the religious community and the business community.
    We will hear from scholars, law enforcement, and advocates. We
    will also hear from witnesses who believe that equality for all
    under our immigration system is not only right, but in our
    Nation's interest.
        You know, it is long past time to reform our immigration
    system. We came close in 2006 when Senator Kennedy and Senator
    McCain led a bipartisan effort. In the course of those efforts,
    Senator Kennedy said the following:
        We believe that immigrants, like women and African
    Americans before them, have rights in this country, and the
    time is ripe for a new civil rights moment. We believe that a
    nation of immigrants rejects its history and its heritage when
    millions of immigrants are confined forever to second-class
    status and that all Americans are debased by such a two-tier
    system. The time has come for comprehensive immigration reform.
        Well, my dear friends, Senator Kennedy was right. I wish
    the House had joined in our efforts in 2006 and we had
    completed reforms back then. I am glad, however, that Senator
    McCain has once again joined this effort. It is long past time
    to get this done. We need an immigration system that lives up
    to American values and helps write the next great chapter in
    American history by reinvigorating our economy and enriching
    our communities--the kind of country that attracted my maternal
    grandparents here or my wife's parents when they came here and
    became citizens, productive citizens.
        In Vermont, immigration has promoted cultural richness
    through refugee resettlement and student exchange, economic
    development through the EB-5 Regional Center program, and
    tourism and trade with our friends in Canada. Foreign
    agricultural workers support Vermont's farmers and growers, and
    many have become a part of the farm families that are such an
    integral part of the fabric of Vermont communities. Among
    today's witnesses are two Vermonters who will talk about the
    needs of farmers and the challenges many face under the current
    system and the way in which international tourism and trade is
    critical to border States like Vermont.
        Now, let me point out one thing that has troubled me a
    great deal. Last week, opponents of comprehensive immigration
    reform began to exploit the Boston Marathon bombing. I am a New
    Englander. I spent a lot of time in Boston growing up, and
    still do today, friends and relatives there. I urge restraint
    in that regard. Refugees and asylum seekers have enriched the
    fabric of this country from our founding. In Vermont, we have
    welcomed as neighbors Bhutanese, Burmese, and Somalis, just as
    other States have welcomed immigrants looking to America for
    refuge and opportunity. Whether it is the Hmong in Minnesota,
    Vietnamese Americans in California, Virginia, and Texas, Cuban
    Americans in Florida and New Jersey, or Iraqis in Utah, our
    history is full of these stories of salvation.
        Let no one be so cruel as to try to use the heinous acts of
    these two young men last week to derail the dreams and futures
    of millions of hard-working people. The bill before us would
    serve to strengthen our national security by allowing us to
    focus our border security and enforcement efforts against those
    who would do us harm. But a Nation as strong as ours can
    welcome the oppressed and persecuted without making compromises
    on our security. We are capable of vigilance in our pursuit of
    these values, and we have seen the tremendous work that the
    local law enforcement as well as the Federal law enforcement
    have done in the Boston area, and I am so proud of them.
        The bipartisan effort behind the proposal we are examining
    today is the result of significant work and compromise. In
    addition to the eight bipartisan Members who led the effort, I
    also want to thank Senators Feinstein and Hatch for their work
    on the provisions affecting agriculture. So I urge everyone on
    both sides to consider their example as we move forward on
    this.
        Too often in the recent past this Committee has broken
    along partisan lines on compelling issues. Recently we saw all
    the Republican Senators on this Committee oppose
    reauthorization of the Violence Against Women Act. Fortunately,
    with the help of nearly half of the Republicans in the Senate
    and a great number of Republicans in the House, we were able to
    enact that important legislation this year.
        Now, we had three Committee hearings, four markups and
    extensive negotiations on gun laws, but we saw all Republicans
    on this Committee oppose bipartisan efforts to close the gun
    show loophole and enact a tough law against gun trafficking and
    straw purchasing.
        Let us not let comprehensive immigration reform fall victim
    to what we saw in the Violence Against Women Act and guns. The
    challenge now is ours in the Committee. But the challenge is
    really for all of America. Let this Committee set an example
    and bring to the Senate, which should be the conscience of the
    Nation, the opportunity to create an immigration system worthy
    of American values.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Senator Grassley.

               OPENING STATEMENT OF HON. CHUCK GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. If you want to avoid partisanship, I
    would say let us be very deliberate, and I think you have been
    very deliberate so far. If you continue that deliberation, I do
    not think you will have any partisanship.
        I want you to take note of the fact that when you proposed
    gun legislation, I did not accuse you of using the Norristown
    killings as an excuse. And I do not hear any criticism of
    people when there are 14 people killed in West, Texas, and
    demanding taking advantage of that tragedy to warn about more
    Government action to make sure that fertilizer factories are
    safe. I think we are taking advantage of an opportunity when
    once in 25 years we deal with immigration to make sure that
    every base is covered.
        Today we continue our discussion on the immigration bill
    that was unveiled last Wednesday in a very good work by a
    bipartisan group of Senators. And as they correctly stated, a
    starting point in a process that is going to have to be very
    deliberative, because we were very deliberative in 1986, and
    you can see we screwed up because at that point we only had
    three million people crossing the border unlawfully. Now there
    are 12 million people that have.
        As some of the authors of that bill have emphasized, the
    Border Security, Economic Opportunity, and Immigration
    Modernization Act is a starting point. Now, there are 92 other
    Senators that must get their chance to amend and improve this
    bill in a deliberative process.
        Let me begin by saying that a critical part of the bill
    that we are discussing is the first 59 pages. And as people
    read through this bill, I hope you will pay special attention
    to those 59 pages.
        This is the border security section that triggers the
    kickoff of legalization, because if we do not secure our
    borders up front, there will be no political will and pressure
    from legalization advocates to do it later.
        To summarize, the bill requires the Secretary of Homeland
    Security within 6 months that a bill is signed into law to
    submit a comprehensive southern border security strategy as
    well as a southern border fencing strategy. After those so-
    called plans are submitted to Congress, the Secretary can start
    processing applications to legalize the 12 million people that
    are in the United States. The result is that the undocumented
    become legal after a mere plan is submitted despite the
    potential that the plan could be flawed and inadequate.
        Additionally, the bill provides $6.5 billion in emergency
    spending to be available for various border security
    enhancements to be used under the discretion of the Secretary.
    While I understand the need for such an investment, there is no
    congressional input on either the Secretary's plan and the
    funding that she will have at her disposal.
        Now, I have not read every page in this bill yet, but from
    what I read, I find a great deal of congressional authority
    delegated to the Secretary. It reminds me of the 1,693
    delegations of authority in the health care reform bill that
    makes it almost impossible for the average citizen to
    understand what might be coming down the road.
        More importantly, the bill does nothing to improve the
    metrics that this and a future administration will use to
    ensures that the border is truly secure. Congress passed a law
    in 2007 requiring that 100 percent of the border be 100 percent
    ``operationally controlled.'' However, President Obama and
    Secretary Napolitano abandoned that metric.
        The bill before us weakens current law by only requiring
    the southern border to be 90 percent effectively secured in
    some sectors, only the so-called high-risk sectors. What about
    the other six sectors?
        Then before green cards are allocated to those here
    illegally, the Secretary only has to certify that the security
    plans and fencings are ``substantially deployed, operational,
    and completed.'' If the Secretary does not do her job, then a
    commission is created to provide recommendations. This is just
    a loophole that allows the Secretary to neglect doing the job.
        Another area of interest for me is the employment
    verification measures. As I said before so many times, I was
    here in 1986 when we, for the first time, made it illegal for
    employers to hire undocumented individuals. I have been a
    champion for making the E-Verify system a staple in every
    workplace. It is a proven and valuable tool to ensure that we
    have a legal workforce. While I am encouraged that the bill
    includes E-Verify, I am concerned that the provisions will
    render the program ineffective as an enforcement tool.
        The bill fails to put this system in place for everyone for
    almost 6 years down the road. After regulations are published,
    the biggest employers in the country will have another 2 years
    before they are required to check their employees.
        If we are legalizing and providing work permits in 6
    months, why must we wait up to 6 years for everyone to comply?
    The system is ready to be deployed right now nationwide.
        Finally, on E-Verify, the bill fails to require or even
    allow employers to verify their current workforce and is only
    prospective in nature. I am also concerned about the
    Secretary's ability to exclude individuals with ``casual,
    sporadic, irregular, or intermittent'' employment, however they
    may be defined. And then why we do not define those terms, I do
    not know.
        I am interested in hearing from our witnesses about whether
    the bill fixes the problems in our immigration system.
    Everyone, including myself, says the system is broken. Aside
    from legalization from those who are here and potentially for
    the family members who are not and the clearing of backlogs,
    what does the bill do to fix the system? What improvements will
    ensure that we are not back here in the hearing room 30 years
    from now to revisit the issue? Will the new legal guest worker
    program be effective? Will small business and U.S.-based
    companies be able to compete nd find high-skilled workers to
    grow the economy? Will American workers truly come first? Will
    we incentivize people to come here legally and deter them from
    overstaying their visas once it has expired? These are
    questions I have.
        But in regard to border security, security is what is the
    basis of the sovereignty of any nation. We must have
    independent authority over our borders.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you very much.
        We will hear first from Arturo Rodriguez. He has served as
    the president of the United Farm Workers since 1993. He has
    spent much of his life working to establish fair working
    conditions for agricultural workers in the Western United
    States. He is no stranger to this Committee, and, of course,
    Senator Feinstein, who has worked so hard on these agricultural
    matters, I know has met and talked with you a great deal.
    Please, Mr. Rodriguez, go ahead.
        Senator Grassley. Mr. Chairman, I ask that Senator Cornyn
    be given 5 minutes because he was not here Friday and because
    he is the Ranking Republican on the Subcommittee.
        Chairman Leahy. Could I ask if he takes that during his
    question time? And I will--I know you were not here, and,
    incidentally, I stated publicly that if I was in your shoes, I
    would not have been here either.
        Senator Cornyn. We had 14 dead in West, Texas----
        Chairman Leahy. I said publicly I would have been there----
        Senator Cornyn [continuing]. Which is the reason I was
    there, and I understand and I appreciate the Ranking Member
    pointing out the reason for my absence.
        Chairman Leahy. I also did.
        Senator Cornyn. My only concern, Mr. Chairman, is if I am--
    that takes away time that I have for questions for the panel. I
    appreciate----
        Chairman Leahy. No, no. I am going to give you an extra 5
    minutes so you can do both.
        Senator Cornyn. I will be happy to. Thank you.
        Senator Grassley. Thank you.
        Chairman Leahy. And I did state publicly at the hearing
    that I commended you for being in Texas and that is the place
    you had to be, as did Senator Feinstein.
        Mr. Rodriguez.

              STATEMENT OF ARTURO S. RODRIGUEZ, PRESIDENT,
           UNITED FARM WORKERS OF AMERICA, KEENE, CALIFORNIA

        Mr. Rodriguez. Well, thank you, Chairman Leahy, Ranking
    Member Grassley, and Members of the Subcommittee. Thank you for
    the opportunity to testify today. My name is Arturo Rodriguez,
    and I have the honor of being President of the United Farm
    Workers of America. Tomorrow will mark the 20th year since our
    founder, Cesar Chavez, passed away, so we think it is very
    appropriate that we are here today on this historic day to talk
    about the future of American agriculture. I want to give a
    special thank you to Senator Feinstein, with whom we have
    worked for years to solve this problem, and Senator Hatch, who
    unfortunately could not be with us here today, with whom we
    have worked very closely, especially over the last several
    months, and who helped us in forging this agreement and
    bringing together the parties to deal with a crisis that we
    face in American agriculture and to provide stability in the
    years to come.
        Last week, both Chuck Conner, to my left, and I proudly
    joined other agricultural employers and agricultural workers in
    supporting a policy proposal put together by Senators
    Feinstein, Hatch, Bennet, and Rubio that will strengthen our
    Nation's agricultural industry.
        The proposal is part of the broader, more comprehensive
    immigration policy submitted last week by Senators Schumer,
    McCain, Durbin, Graham, Menendez, Flake, Bennet, and Rubio. It
    is great to see so many of you on this Committee today.
        Thankfully, many of you on this Committee are very
    committed to fixing our broken immigration system. As someone
    born and raised in Texas and with almost all of my extended
    family in Texas, I am proud that both Texas Senators are on
    this Committee, and I hope to leave here today knowing that I
    can count on the support of Senators Cornyn and Cruz to advance
    this proposal in addition to those of you with whom we have
    worked so hard.
        Both farmers and farm workers have worked together over the
    last 5 months with the support of Senators from both political
    parties, representing very different regions of the country, in
    the interest of improving our Nation's agricultural industry
    and securing our Nation's food supply.
        We have worked so hard to come together, and we ask you as
    Members of this Committee to come together to support this
    proposal because America's farms and ranches produce an
    incredible bounty that is the envy of the world. The farmers
    and farm workers that make up our Nation's agricultural
    industry are truly heroic in their willingness to work hard and
    take on risk as they plant and harvest the food all of us eat
    every day.
        But our immigration system threatens our Nation's food
    supply. The UFW and our Nation's agricultural employers have
    often been at odds on many policy issues, but we have now come
    together to unify our Nation's agriculture industry. We are in
    a unique moment in our Nation's history, and together with a
    lot of work, you on this Committee can make the changes we need
    to secure our Nation's food supply.
        Let me speak a little about what is at stake for the women
    and men who work in the fields. Every day across America, about
    2 million women, men, and, yes, even children, labor on our
    Nation's farms and ranches, producing our fruits and vegetables
    and caring for our livestock. At least 600,000 of these
    Americans are U.S. citizens or legal residents. Our migrant and
    seasonal farm workers are rarely recognized for bringing this
    rich bounty to supermarkets and our dinner tables. And most
    Americans cannot comprehend the difficult struggles faced every
    day by farm worker families. Increasingly, however, America's
    consumers are asking Government and the food industry for
    assurances that their food is safe, healthy, and produced under
    fair conditions.
        The life of a farm worker in 2013 is not an easy one. Most
    farm workers earn very low wages. Housing in farm worker
    communities is often poor and overcrowded. Federal and State
    laws exclude farm workers from many labor protections other
    workers enjoy, such as the right to join a union without being
    fired for it, overtime pay, many of the OSHA safety standards,
    and even workers' compensation in several States. Farm worker
    exclusion from many of these basic Federal laws, such as the
    right to organize, in the 1930s is one of the sadder chapters
    of our history.
        With any new immigration policy, first and foremost we seek
    an end to the status quo of poverty and abuse. We should not
    continue to treat farm workers as second-class workers. We also
    know that any new immigration policy must consider the future
    of the workforce upon which American agriculture depend.
        I want to thank this Committee very much for the
    opportunity to be here today and certainly will answer any of
    the questions that the Committee might have in regards to this.
        Thank you very much.
        [The prepared statement of Mr. Rodriguez appears as a
    submission for the record.]
        Chairman Leahy. Well, thank you very much, Mr. Rodriguez.
        Our next witness is Charles Conner. He serves as the
    president and CEO of the National Council of Farmer
    Cooperatives since 2009. He served as Deputy Secretary and
    Acting Secretary for the U.S. Department of Agriculture in the
    Bush administration from 2005 to 2009. I might say on a
    personal note, both during the time when I was Chairman of the
    Senate Agriculture Committee and when I was Ranking Member, Mr.
    Conner was one of the most valuable staff people working there.
    He was relied on heavily by both Republicans and Democrats for
    his advice.
        Go ahead, Mr. Conner.

      STATEMENT OF CHARLES CONNER, PRESIDENT AND CHIEF EXECUTIVE
                  OFFICER, NATIONAL COUNCIL OF FARMER
                      COOPERATIVES, WASHINGTON, DC

        Mr. Conner. Chairman Leahy, thank you for those comments,
    and Ranking Member Grassley and Members of the Committee, thank
    you for the invitation to testify today on American
    agriculture's need for immigration reform.
        As noted in your introduction, I am Chuck Conner, president
    and CEO of the National Council of Farmer Co-ops. But I am also
    here as one of the founding members of the Agriculture
    Workforce Coalition, or the AWC. The AWC brings together nearly
    70 agricultural organizations that represent the diverse needs
    of agricultural employers across the country. The AWC came
    together because, increasingly, finding enough workers to pick
    crops and care for animals has become the number one priority
    for many of our members across the country, in all regions of
    the country.
        I dare say that for many producers, this immigration
    legislation and this debate before us is more important to the
    survival of their operations than any other legislation pending
    before Congress.
        We have all seen reports of crops left to rot in the fields
    because growers lack sufficient workers to bring in the
    harvest. It is estimated that in California alone, some 80,000
    acres of fresh fruit and vegetable production has been moved
    overseas because of labor shortages here in the U.S.
        The problem extends to animal agriculture as well,
    especially dairy. A study by Texas A&M found that farms are
    using immigrant labor supplies on more than 60 percent of our
    farms in this country producing milk. Without these employees,
    economic output from this study was estimated to decline by
    nearly $22 billion, and 133,000 workers would have lost their
    jobs.
        As many of you know, the formation of the AWC represents a
    significant change from where we have been in the past. For
    many years, American agriculture has spoken with many and
    oftentimes conflicting voices on the issue of immigration.
    Today, as the AWC, we speak with one unified voice. This unity
    in agriculture extends beyond just the employer side, though.
    The AWC has also engaged the United Farm Workers Union in
    arriving at a landmark agreement on agricultural immigration
    reform. It is a great pleasure that my fellow panelist today,
    Arturo Rodriguez, president of the UFW, joins us in support of
    this legislation.
        I would also like to emphasize that reaching this agreement
    would have been simply impossible without the leadership,
    tenacity, and commitment of Senator Dianne Feinstein. Senator
    Feinstein, joined in the process, of course, by Senator Marco
    Rubio, Senator Bennet, and Senator Hatch, fostered a spirit of
    unity that was ultimately necessary to produce this agreement.
        The agricultural provisions in this legislation represent
    our best chance in over a decade or longer to solve the labor
    shortage in agriculture. The program outlined in the bill
    includes two key components: a blue card program for current
    experienced farm workers and a new agricultural visa program to
    meet future labor needs.
        Agriculture today admits the reality that a majority of our
    current workforce is undocumented, despite producers' good
    faith efforts to verify the status of their employees. In the
    short-term, the legislation provides that current undocumented
    farm workers would be eligible to obtain legal status through
    this previously mentioned blue card program. But the
    legislation also realizes that, in time, these blue card
    workers will likely move on to jobs in sectors of the economy
    far beyond just agriculture.
        To ensure that we do not end up back where we started in 5
    or 10 years, the bill includes a new, flexible and market-based
    agricultural worker visa program. Importantly, the new visa
    program will be administered by the U.S. Department of
    Agriculture. This is a significant change from the current
    regime administered by the Department of Labor, which has
    demonstrated a complete lack of understanding of agriculture
    and our labor needs. Additional information on agriculture's
    unique labor needs as well as the details of the proposal can
    be found, of course, in my lengthier written statement which
    was submitted for the record, Mr. Chairman.
        I thank you again for this opportunity to testify on behalf
    of so many in agriculture today, and I do look forward to any
    questions that you have at a later time.
        [The prepared statement of Mr. Conner appears as a
    submission for the record.]
        Chairman Leahy. Well, thank you, and it is good to see you
    back here on the Hill.
        Alyson Eastman is the president of Book-Ends Associates,
    agent of H-2A business services for employers of agricultural
    workers based on Vermont. Her family has a long tradition of
    farming in Vermont. They currently own a 278-acre farm in
    Orwell, Vermont. Orwell is not only one of the prettiest parts
    of Vermont, but it is certainly one of the most significant
    agricultural parts of our State.
        Ms. Eastman, please go ahead.

                STATEMENT OF ALYSON EASTMAN, PRESIDENT,
                 BOOK-ENDS ASSOCIATES, ORWELL, VERMONT

        Ms. Eastman. Good morning. My name is Alyson Eastman. At
    Book-Ends Associates we have been assisting H-2A employers
    since 1993.
        First, I would like to thank Chairman Leahy, Ranking Member
    Grassley, and all Members of the Committee for providing me the
    opportunity to appear before you today on behalf of the
    agricultural employers that I represent in Vermont, New
    Hampshire, and New York as an H-2A Agent. As a member of the
    National Council of Agricultural Employers and through my work
    with U.S. Apple, I have traveled to DC on several occasions,
    including two bipartisan meetings with U.S. DOL officials and
    Members of Congress, which took up the better part of each day.
        There is bipartisan agreement that the current system is
    broken and that the H-2A program as it stands today is nearly
    impossible to use. A shared challenge faced by all farmers
    seems to be finding legal and experienced laborers who can
    provide the agricultural employers with competence,
    predictability, and stability. The proposed bill would be
    useful as it no longer draws a distinction between the seasonal
    and non-seasonal employers such as dairy farmers. This will
    allow dairy farmers to hire workers, and also some of their
    workers could even be considered for legalization.
        A common misconception is that H-2A seasonal guest workers
    are displacing U.S. domestic workers. In our office, we not
    only facilitate the application paperwork for employers, but in
    some cases, we also process their payroll. There is a direct
    correlation between the hiring of H-2A and the hiring of
    domestic employees. Forrence Orchards in Peru, New York, in
    2012 applied and petitioned for 224 H-2A workers. The majority,
    roughly 200 of these workers, only worked for an 8-week harvest
    period. These foreign workers created 50 year-round domestic
    jobs. Their payroll for fiscal year ending 6/30/12 was just
    short of $2.4 million.
        Without the H-2A workers, employers would not find it
    possible to harvest the crops according to the quality method
    and, therefore, would not have a marketable crop. All employers
    will tell you that it requires appropriate timing and skilled
    labor to pick produce in such a way that will ensure a quality
    product and market opportunity.
        Employers face many challenges with the current H-2A
    process, and the majority agree the issues are simply because
    U.S. DOL does not understand ag. The application process is
    very time sensitive, starting at 60 days prior to date of need.
    It is nearly impossible to get the workers here in a timely
    fashion due to the convoluted process and the unnecessary
    Notices of Deficiencies. These employers are in the H-2A
    program because they want a legal, reliable, and experienced
    workforce. It would be most advantageous for USDA to facilitate
    the application process as they understand the needs of ag.
        I think back to August of 2010 when there was no movement
    of the workers because Department of State was notified by U.S.
    DOL not to let any of the Jamaican workers enter the country
    due to an investigation of Jamaica Central Labor. Thankfully,
    Senator Leahy's seasoned staff quickly sprung into action. An
    agreement was reached within a week, and each employer signed
    an affidavit that they would not take any deductions from the
    workers' pay for JCLO. Another 48 to 72 hours and we would have
    seen thousands of bushels of apples on the ground nationwide as
    a total crop loss.
        Needless to say, our office did not get any sleep for a
    straight week just knowing that crop insurance would not cover
    this type of loss.
        It is important to H-2A employers such as Barney Hodges at
    Sunrise that he can continue to get his experienced workers
    back each year. Barney has said, ``Without these experienced
    workers, my orchard would be crippled, and we would be done
    farming and look at developing.''
        Please note the term ``experienced,'' and also note the
    fact that these H-2A workers have returned year after year to
    the same farm.
        In conclusion, the only con I see with the proposed name is
    the W-2 and W-3 visas since all employees' annual wages are
    reported on a Form W-2 and the gross employer wages are
    reported on a Form W-3.
        The pros certainly outweigh the cons. I feel that the
    employers will be in favor of the written part of the bill
    which refers to an employer's ability to give preference to the
    loyal H-2A worker who has worked for the employer 3 out of the
    last 4 years. Also, the logic behind the proposed wage rates
    seems much more commonsensical and affordable.
        I believe that those undocumented workers also follow much
    of what is said above. It would be a great opportunity for the
    employers to obtain a legal workforce and provide them with
    stability. The public does not seem to understand that these
    undocumented workers have been paying into Social Security and
    Medicare with the expectation that they would never benefit
    from it. It seems ludicrous to me to even consider sending all
    the undocumented workers home as it would significantly impact
    our Social Security and Medicare funding, while at the same
    time losing those folks who support our farms by doing jobs
    that Americans simply do not want to do.
        No doubt that whether one is referring to an undocumented
    ag worker or an H-2A ag worker, they share the following in
    common: these workers are ambitious, they are here to work,
    they want to please their employers and improve their lot in
    life, and they are willing to do jobs that we cannot get
    Americans to do. Let us not forget through doing these jobs
    that Americans do not want to do, they, in fact, create jobs on
    the farm for the U.S. domestic workers.
        I conclude by stating a solid immigration bill will
    solidify and solve many of these ag issues that employers are
    facing today.
        Thank you again for providing me with this opportunity to
    testify. I look forward to answering any questions.
        [The prepared statement of Ms. Eastman appears as a
    submission for the record.]
        Chairman Leahy. Well, thank you, Ms. Eastman, and I thank
    you for using those real-world examples. I remember very well
    the question with the apple pickers. Thank you for
    complimenting the staff. I may get the credit, but they are the
    ones doing the work. And I know a lot of meetings we had, a lot
    of phone calls with you, a lot of phone calls with others, and
    a number that I could make, but they did the leg work. And as a
    lifelong Vermonter, I worry about those crops, too.
        Ms. Eastman. Absolutely.
        Chairman Leahy. They are such a significant part of our
    bases.
        Also, the H-2A program is open to temporary and seasonal
    agriculture employers. We can take care, assuming it works
    right, we can take care of apple pickers, but then we have
    dairy farmers, and Senator Franken and I have both noted that
    you cannot tell the cows, ``We will be back in 6 months to milk
    you again.'' They do not react well to that.
        So how would the proposed agricultural worker visa in the
    legislation help both seasonal and year-round workers?
        Ms. Eastman. Sir, I think it would definitely help in many
    ways, allowing for the workers to not only be here year-round,
    milk the cows, and I think, too, when you face both types of
    visas, whether they are going to come in for one employer or
    they have the ability to move between employers, all of that
    seems very advantageous and in effect will take care of dairy
    farmers.
        When I look at how the H-2A works today and I see that, you
    know, poultry, some of our farms are year-round and they do
    have the ability to get H-2A seasonal workers only because it
    is seasonal work that they are doing. However, the milking of
    the cows does not wait.
        Chairman Leahy. We see a lot of dysfunction in the current
    H-2A program. Do you think we should be giving the Department
    of Agriculture a greater role in the visa program?
        Ms. Eastman. Absolutely, and I think most of us agree on
    that. I have got a prime example of the U.S. Department of
    Labor that I think everybody can understand. When we petitioned
    for 18 peak seasonal workers to come and process turkeys, the
    job employment period was from 10/13 to 12/3. It was clear they
    were going to come to process the turkeys for Thanksgiving. We
    received a Notice of Deficiency from the Department of Labor
    and they wanted to know who was doing these jobs when these
    seasonal workers were not here. And we had to respond and show
    2 years' worth of payroll and have it notarized as an affidavit
    saying that it was true to prove that they were needed here to
    process turkeys for Thanksgiving. So I am not sure really what
    is on their table at Thanksgiving, but they clearly did not
    understand that need.
        Chairman Leahy. I understand. I know you have a couple
    other examples which we will put in the record, because I do
    want to ask Mr. Rodriguez. I want to set an example and keep to
    my own time here. I know how he was one of the chief
    negotiators in discussions over the agriculture title, and I
    would note again, everybody that has been involved in this has
    had to give some. I hope people realize on this Committee that
    there has been a lot of giving on both sides.
        There is one area, though, in this legislation, can you
    tell us how this is going to help prevent the exploitation of
    undocumented farm workers?
        Mr. Rodriguez. First of all, I want to thank the folks from
    the agriculture industry that we worked with and certainly
    Senator Feinstein and the rest of the Senators who were there
    with us, because they really helped fashion the discussions in
    such a way that we really talked about the various issues that
    affected all of us.
        But I think all of us in the end, Senator Leahy, wanted to
    make sure that we had an agricultural industry in this country
    that was viable and that we could all respect and be proud of
    here in our Nation. It was very important for us to establish
    an agreement here that would honor the farm workers and the
    work that they do as well as ensure that the ag industry is
    going to have the supply of labor that is necessary, the
    skilled professional farm workers that they so need to harvest
    their crops, and for the dairy industry and other industries.
        And so, you know, we feel that there are a lot of
    protections that are here in the legislation that will ensure
    the protection of the existing farm worker labor force that is
    here right now. The current force are going to have an
    opportunity to legalize themselves via the blue card program.
    And that will provide great opportunities for stabilizing
    families, stabilizing the industry, and providing a good
    product for American consumers.
        Chairman Leahy. And living conditions.
        Mr. Rodriguez. Certainly the living conditions would be
    very important, and, again, we worked very closely in
    discussions with the agriculture industry, and they were very
    open to ensuring that that did exist here within this
    legislation, such as providing housing or housing vouchers.
        Chairman Leahy. Thank you.
        And, Mr. Conner, I know you worked with a number of people,
    with Tom Nassif of the Western Growers, lead negotiator on your
    side. I know there was a lot of give and take when you worked
    with Senators Feinstein and Hatch. But if we get these reforms,
    do you feel pretty satisfied this is going to be not only
    better for the country but better for agriculture?
        Mr. Conner. Senator Leahy, there is no question, and let me
    just underscore, this is a compromise piece of legislation from
    our standpoint. You know, the negotiations were extremely
    difficult, but in the final product, we believe we have a
    balanced proposal that protects those farm worker interests, as
    Arturo has described, but at the same time provides an
    opportunity for U.S. agriculture to do what it does best, which
    is produce high-quality, low-cost products so that we are not
    continuing to import more and more of our food supply, which is
    what we are so strongly against.
        So there is no question it is the right balance. We believe
    it provides us that opportunity because of the legalized
    workforce through the blue card program, for our existing
    trained, skilled workers. But equally as important is the new
    guest worker program that contains both an at-will as well as a
    contract provision so that the seasonal as well as the
    livestock industry can get the workers they need in the future.
        Chairman Leahy. I thank all three of you, and I will yield
    to Senator Grassley.
        Senator Grassley. I am going to make a little statement
    before I ask specific questions, and if there is anything in my
    question or my statement that is incorrect, I hope you will
    correct me.
        It is my understanding that the legalization program for
    agricultural workers mirrors in part the main legalization
    program in the bill. It gives undocumented people up to 2-1/2
    years to come forward and apply. It provides a blue card for
    people who can prove that they have worked in agriculture for
    some time. It gives the same status to spouses and children. Ag
    workers pay an initial fine of $100.
        Also like the main legalization program, the Department of
    Homeland Security is required to provide any alien it
    apprehends after the date of enactment with an opportunity to
    file an application. Those in removal proceedings get the same
    benefit. During the time the application is pending, the
    undocumented person cannot be removed. They cannot even be
    detained. If an application is denied because it does not have
    sufficient evidence, the undocumented worker gets another bite
    at the apple.
        Going to my first question, this is the way I read the
    bill, and so I want you to tell me whether or not I am right or
    wrong. The bill provides legal status to ag workers right away.
    Then they must wait 5 years before gaining citizenship.
    However, the Secretary only has to submit a plan, not implement
    it. So the border does not have to be secured before millions
    get citizenship.
        Would that be an accurate interpretation of the legislation
    before us?
        Mr. Rodriguez. I would just say, Senator Grassley, that it
    is my understanding of the legislation is that the agricultural
    workers will, yes, be given an opportunity to obtain legal
    status to work in this country immediately. However, it will
    take at least 5 years to meet the requirements for working in
    the agricultural industry to gain permanent residency, not
    citizenship.
        Senator Grassley. Okay.
        Mr. Rodriguez. And the reason for that, the thinking behind
    that and the discussions, is that the reality----
        Senator Grassley. You do not have to justify that.
        Mr. Rodriguez. Okay.
        Senator Grassley. It was in relationship to whether or not
    citizenship for this group of people could be possible without
    the border being secured because of the time period.
        Mr. Conner. Senator Grassley, if I could just supplement
    that very quickly, I will tell you, in order to be eligible for
    the blue card program, which eventually can then be, as Arturo
    has pointed out, converted into a green card, you have to have
    a history of substantial agricultural work already in this
    country.
        Senator Grassley. Sure. I got you.
        Now, I want to give a quote here from somebody commenting
    on the 1986 legislation as it deals with agricultural workers
    and following up on what Senator Leahy said, the extent to
    which it is better for agriculture--and I do not disagree with
    what you said about that, Mr. Conner--but because there are
    lessons to be learned from mistakes that we made in 1986.
        This is a quote from Phillip Martin, Professor,
    Agricultural Economics, Davis: ``The exit of illegal immigrants
    granted special agricultural worker status and subsequent
    permanent residence from the farm workforce since the early
    1990s reflects a different phenomenon. Falling real wages and
    shrinking benefits encourage special agricultural workers to
    seek non-farm jobs as the economy improved in the 1990s. The
    special agricultural workers who left farm work were replaced
    by newly arrived, unauthorized migrants. By 1997 to 1998, it
    was estimated that the special agricultural workers were only
    about 16 percent of the crop workers.''
        So, Mr. Conner, are we not afraid or should we not be
    afraid that giving legal status and eventual citizenship to
    people who are here illegally will only repeat the mistakes we
    made in 1986, putting the ag industry in the same position in
    the long run? In other words, this whole thing comes about
    because farmers come to us and tell us they need these workers.
    Okay. We bring in these workers. Then they migrate someplace
    else, and people illegally came in afterwards. How do we avoid
    that mistake we made in 1986?
        Mr. Conner. Senator Grassley, your question is a great
    question, and it goes to the heart of, fundamentally, the basis
    of our negotiation that has been occurring in Senator
    Feinstein's office for the last 3 or 4 months. The blue card
    program for our current existing trained workforce is an
    important component, but an equally important component is we
    do not know with absolute certainty over the next decade or so
    what is going to be the status of those workers that will be
    receiving these blue cards. Will they stay in agriculture? In
    order to get the green card, they have to stay in for a very
    long time. The law requires that. But beyond that, we do not
    know for sure, and that is why we have had very difficult
    negotiations over then the second part of that, which is the
    guest worker program, and to make sure that it is both at-will
    and contract so that it serves all of agriculture. Because we
    know at some point we are going to need additional workers
    beyond the highly trained skilled workers that are currently
    doing the work in this country, that are likely to get a blue
    card, there will be additional workers needed down the road.
        So we have got to have a viable, workable guest worker
    program. The current H-2A program is not that program. If we
    had the blue card program and our existing H-2A, I can assure
    you we would be back here in a few years, Senator, telling you
    that we have got a big problem. That is what we have got to
    avoid.
        Senator Grassley. My time is up, but we have got to make
    sure we do not make the same mistake we did in 1986.
        Chairman Leahy. Thank you.
        We have two unique situations on the Committee, as we
    mentioned, with Senator Cornyn who had to be absent, and all of
    us understand why. There is no question he should have been in
    Texas, and he was. The other is Senator Feinstein, who is head
    of the ag negotiations, both are going to be given some extra
    time with the consideration of other Senators, and I will yield
    first to Senator Feinstein, and then we will go to Senator
    Sessions, I guess.
        Senator Feinstein. Thank you very much, Senator Leahy. I
    very much appreciate this opportunity. Thank you very much, and
    I want to thank our witnesses here today.
        Also, Chuck, I hope you will thank Tom Nassif for the
    negotiation of those specific wage numbers.
        Arturo--it is hard to call somebody by their last name when
    you have sat for so many hours together. So I want you to know
    that I do not know a labor leader in this country who cares
    more about its people, who is more dedicated, more reasonable,
    and I want you to know that it has just been a real pleasure to
    work with you. And, Chuck, I can say the same thing. The
    sessions were long. They were 6, 7 hours at a time. You all
    negotiated over weekends. We went back and forth.
        Through the course of this, it was easy to sort of come out
    with what was necessary. One was that there was a deep belief
    that a lot of the BLS studies on wage rates were skewed, and,
    therefore, we needed a new process. The farmers wanted
    specificity of wage. We have that for the farm worker. We have
    a way of increasing it. We have a way of putting all of this
    under the Department of Agriculture.
        The Secretary of Agriculture will make his FSAs, his Farm
    Service Agencies, which exist in each State, available, which
    should help farmers.
        The thing about the farm workers was to find a way to
    recognize the skills that exist in farm work and to try through
    a program to see that what evolves out of this is a
    professional class of worker who can be proud.
        The blue card we expect--and this is very rough--would
    apply to 700,000 to 1.1 million workers. It exists for 5 years.
    You have to have worked ag for a specific number of days and
    hours for 2 years prior to getting a blue card. You would be
    vetted. You would have to pay taxes, a fine, et cetera. No
    major criminal activity. You get your blue card. Then you have
    to work another 5 years, dependent upon the number of days a
    year. And then you get a green card.
        The H-2A program which exists, only 74,000 workers this
    past year, will cease to exist within a 2-year period, and it
    would be replaced by two visa programs. Chuck spelled them out:
    a contract program which replaces H-2A, and an at-will portable
    visa program. They are both 3 years. There is a cap on both of
    112,000 a year for the first 5 years. That totals 300,000 plus,
    and then the Secretary of Agriculture in the future sets the
    cap. The AEWR wage rate, which is the adverse wage rate, is
    phased out and replaced by this new methodology within--I think
    it is a year after the effective date of passage of this bill.
        This has not been easy to put together, and I appreciate
    Senator Grassley's comments, but I want him and others to know
    that we tried to figure what you were aiming at and compensate
    for it in terms of making the kinds of changes that would have
    a stable workforce out there for farmers.
        My staff has prepared comments from each State that have
    come in with respect to the need. We have 100 copies, and we
    would make it available to anyone that would like to provide
    additional information. But I think every State is in here.
        It is as close to coming to a national crisis with respect
    to retaining this country's agricultural prowess as anything.
    Farms cannot farm because they do not have a consistent supply
    of workers. They cannot get their contractors. They do not know
    what to pay them. I mean, I sat next to a woman who operated a
    turkey farm in California that between the wage rates and the
    high price of corn because of ethanol had to shut down her
    business. That should not be the case in the United States. And
    we think that we have a solution to that.
        Now, let me go to the questions, and whoever would like to
    answer this. This bill would require all employers to ensure a
    legal workforce at some point by using E-Verify. Very
    controversial when it comes to agriculture. Employers with more
    than 5,000 employees would be required to use E-Verify no more
    than 2 years after regulations are published. Smaller employers
    would have 3 years, and agricultural employers would have to
    comply within 4 years.
        DHS Secretary Janet Napolitano shared with this Committee
    in February that the United States Citizenship and Immigration
    Services recognizes the need and the unique nature of ag and
    has developed a pilot program to test the use of E-Verify in
    agricultural settings. I am waiting to receive an update from
    DHS on the status of this pilot, but, Chuck Conner, let me ask
    you this question: Is DHS working with your organization and
    other ag industry groups to test the E-Verify pilot program?
        Mr. Conner. I am not aware of anything at this point,
    Senator Feinstein, but we can provide any updates based upon
    surveying our membership for the record.
        Along those lines, I will just say we appreciate the fact
    that in the legislation there is some recognition of really the
    small business aspect of American agriculture and the fact that
    producers are moved, if you will, somewhat to the back of the
    line in terms of that being, you know, fully enforceable under
    the E-Verify system. Because we will have new programs up and
    running, we recognize there will be glitches here and there,
    but ultimately our goal here is to have a program where every
    farmer, no matter how small, that they have access to the
    workers they need without incurring enormous expense that we
    know they just simply cannot do.
        Senator Feinstein. Well, then, let me ask everybody here,
    Arturo and Chuck and Ms. Eastman--I do not know you as well as
    I do the other two--to please weigh in with DHS. They must work
    with you. This is controversial in agriculture, and I know
    there are some bumps in the road that we are going to have to
    work out. But we should get that done as soon as we possibly
    can.
        The Chair is not here, but I will say to the Ranking
    Member, Senator, I really believe, with hour after hour and
    week after week, that we have done the best we could to put
    together a bill which satisfies your concerns and also enables
    farmers in America to get a consistent supply of ag workers. So
    I hope that this will be possible to pass, even unamended--
    perhaps there will be a few things, but this has been a
    negotiated agreement over a substantial period of time.
        And I know, Mr. Conner, you represent the American farm
    worker here as well as members of sheep and dairy and all the
    others, as well as Ms. Eastman.
        And, Arturo, there were the Farm Workers Union in this, and
    you were really outnumbered by farmers. You held your own, and
    I think you got good protections for your workers, and I think
    you really perform in the best interests of not only the union
    movement but the workforce of this country. So I just want to
    compliment both of you very strongly.
        Thank you, and I would like to recognize Senator Sessions--
    and the Chair is back.
        Chairman Leahy. Thank you. Senator Sessions, go ahead.
        Senator Sessions. Thank you.
        Well, this is an odd conversation, it seems to me, as we
    deal with this. I believe the interest that needs to be
    protected is the national interest of the United States, and
    that includes existing workers today, workers whose wages have
    been pulled down without doubt by a large flow of labor, low-
    wage labor into the country, and this bill would continue that
    in a way that is very disturbing to me.
        For example, for the last 10, 15 years, maybe more, wages
    have not kept up with inflation in America. Julie Hotchkiss, an
    economist at the Federal Reserve in Atlanta, says, ``As a
    result of the growth in the share of undocumented workers, the
    annual earnings of the average documented worker in Georgia in
    2007 declined 2.9 percent, or $960.''
        So I would say that it is interesting that we have union
    members, we have business people, they meet and they reach an
    agreement, and this is somehow presumed to be the interest of
    the United States. So I would reject that fundamentally. We
    need to ask what is in the national interest.
        I am also dubious about the idea that there are jobs
    Americans will not do. I worked construction in the Alabama
    sun, hauling lumber and stuff. I know Americans do that every
    single day. It is tough work. It is done every day. Where I was
    raised, when I was--when they talked about how we should think
    about that, we were told to respect people who did hard work
    and not to say it is a job an American will not do. Any
    honorable labor is good.
        The last jobs report showed 486,000 people dropped out of
    the workforce. We determined that about a fifth of that only is
    retirements; whereas, only 88,000 jobs were created. And so I
    worry about these kind of things, and I think we need to ask
    that.
        It seems to me that the ag industry is saying that we are
    entitled to a certain number of workers, we demand those
    workers. And, Mr. Rodriguez, this can have the long-term impact
    of reducing the salary of people who have entered lawfully,
    people who get legalized today, immigrant workers. So their
    wages are at risk, too, as the years go by.
        So I just would say that the immigration policy of the
    United States should be established based on the national
    interest.
        Now, we are examining this legislation and found a lot of
    surprising facts. I am not sure the bill's sponsors fully
    understand it or not. But I think it could prove fatal to the
    legislation, and we are going to have to look at a number of
    those things.
        With regard to the ag workers program, Mr. Rodriguez, do
    you know how many people would be legalized, if you do, under
    this program immediately?
        Mr. Rodriguez. The potential is, as Senator Feinstein
    mentioned a little bit earlier, Senator Sessions, that
    somewhere in the range of between 800,000 to 1.1 million, our
    best estimate right now, individuals that we know that are here
    in the country.
        Senator Sessions. Could some of those obtain legal
    permanent resident status in as little as 3 years?
        Mr. Rodriguez. No, sir. They could qualify to be able to do
    that, but no one will be allowed to gain permanent legal
    residency until after 5 years in the program.
        Senator Sessions. So they would get LPR status after 5.
        Mr. Rodriguez. That is correct.
        Senator Sessions. Now, other people in the country would
    wait 10 years. We have been hearing 10 years. But agricultural
    workers would be able to get LPR status in 5. Is that correct?
        Mr. Rodriguez. That is correct, sir.
        Senator Sessions. And that entitles them to certain
    benefits.
        Mr. Rodriguez. It actually just gives them an opportunity
    to be able to stay here, to work in agriculture, to be able to
    ensure that they do not have to fear immigration services or
    anything of that nature. So they will be able to stabilize
    their families as well as provide the skilled labor to
    stabilize the agricultural industry.
        Senator Sessions. But in the future, under the agricultural
    act, immigrants that come to replace people presumably who move
    on to other jobs under this provision of the act, they will
    come for what period of time? How long will they get to come
    and stay in the country initially?
        Mr. Rodriguez. The workers that are currently here right
    now?
        Senator Sessions. No. In the future.
        Mr. Rodriguez. In the future? Well, there is a provision
    here with the----
        Senator Sessions. Mr. Conner wants to be sure he has all he
    needs----
        Mr. Rodriguez. Right.
        Senator Sessions [continuing]. To keep his wage rates at
    the levels he would like to----
        Chairman Leahy. Let Mr. Rodriguez answer the question.
        Senator Sessions. I am letting him answer. I am just
    discussing here.
        Mr. Rodriguez. There is a new visa program that has been
    established that would allow folks to apply for and get 3-year
    visas as opposed to the way it currently is right now, and that
    is to deal with issues like Ms. Eastman was talking about a
    little bit earlier. I mean, we have dairy workers and the dairy
    industry is now included. It is a year-round business.
        Senator Sessions. So they would come for 3 years. Would
    they be able to bring their families?
        Mr. Rodriguez. No, they would not.
        Senator Sessions. And after 3 years, do they have to go
    home or could they stay?
        Mr. Rodriguez. They have to go home for a period of time,
    and then----
        Senator Sessions. How long is that?
        Mr. Conner. If I could, Senator Sessions, for the at-will
    and contract guest workers, they are eligible for a 3-year work
    visa. They are eligible for one renewal of that visa, so that
    combined is a total of 6 years. And after that 6-year period,
    they have to spend at a minimum 3 months, if you will, back in
    their home area.
        Senator Sessions. Over 3 years--how many months at home?
        Mr. Conner. No touchback during 3 year period.
        Senator Sessions. Well, so a person could stay for 6 years.
    They get pretty deeply attached to this country in that period
    of time. Are you going to ask them to go home then?
        Mr. Conner. Well, to follow on to that, obviously they have
    to have----
        Senator Sessions. Will you ask them to go home at the end
    of 6 years?
        Mr. Conner. Yes. They will no longer be eligible because
    they can only get two of those 3-year visas during that period.
        Senator Sessions. My time is up, but I think that is where
    we are. I do not think we are going to be hunting down those
    people and seeking to deport them if they do not leave.
        Chairman Leahy. I am trying to provide time for everybody.
    Senator Schumer?
        Senator Schumer. Thank you, Mr. Chairman, and, again, I
    want to thank you for your continued leadership, support on
    immigration. I cannot thank you enough for agreeing to consider
    the bill our little group filed last week. I would like to make
    a few general comments and then get into ag.
        Generally, as an initial matter, I would like to point out
    that our immigration bill has received widespread support and
    praise among law enforcement, business groups, labor unions,
    religious leaders, conservative thought leaders, and
    immigration groups. It is no accident that all of these folks
    were standing with us last week as we introduced the bill. This
    is not just a few narrow special interests. These are some of
    the leading groups that represent tens of millions of people in
    America.
        And, on the other hand, the only witnesses who are willing
    to testify against the bill today are three individuals from
    the so-called Center for Immigration Study, an organization
    whose stated goal is to reduce immigration to the United States
    and who invented the concept of self-deportation; the author of
    S.B. 1070, the controversial Arizona law that was so far to the
    extreme it was stricken down as unconstitutional by the Supreme
    Court; and the head of the ICE union who has been an outspoken
    critic of immigration.
        So to call all the groups for it, as my good friend from
    Alabama does, ``special interests'' and then to have these
    three witnesses who are far narrower, far more special
    interest, and, in fact, have opposed any immigration reform for
    a very long period of time is not right. These three are not
    mainstream witnesses. The American people are overwhelmingly in
    favor of immigration reform. That is what every poll says. And
    they----
        Senator Sessions. Would the Senator yield?
        Senator Schumer. No, I will not.
        Senator Sessions. Would the Senator yield?
        Senator Schumer. No, no. And they will not be satisfied
    with calls for delays and impediments towards the bill.
        I would say to my colleagues--and I understand their views
    are heartfelt--that the Chairman has a very open process. So if
    you have ways to improve the bill, offer an amendment when we
    start markup in May and let us vote on it. I say that
    particularly to those who are pointing to what happened, the
    terrible tragedy in Boston, as, I would say, an excuse for not
    doing a bill or delaying it many months or years.
        Senator Grassley. I never said that.
        Senator Schumer. I did not say you did.
        Senator Grassley. I never said that.
        Senator Schumer. I did not say you did, sir.
        Senator Grassley. I did not say----
        Senator Schumer. I do not mean you, Mr. Grassley.
        Senator Sessions. Mr. Chairman, I do not appreciate the
    Senator----
        Chairman Leahy. We are----
        Senator Sessions [continuing]. Demeaning the witnesses that
    have come here.
        Chairman Leahy. Let me finish. We are going to have
    probably the most open process on this. There will be debate in
    the Committee. We will have time for it. I have even--as
    Senator Grassley knows, I have even offered some extra time on
    this. And let us keep on. We will have the debate. I expect we
    are going to have a lot of debate.
        Senator Schumer.
        Senator Schumer. And I thank you. I was not intending--
    those remarks were not aimed at anyone on this Committee or the
    three witnesses. There are people out there--you have read it
    in the newspapers--who have said it. And what I am saying is if
    there are things that come up as a result of what happened in
    Boston that require improvement, let us add them to the bill,
    because certainly our bill tightens up things in a way that
    would make a Boston less likely. The changes in the exit-entry
    system of visas, requiring the 11 million people here to
    register, and all of that make it a tighter bill.
        Now, maybe it should be made tighter still. We are open to
    that. That is all I am saying, because I have heard lots of
    calls from people out in the country saying delay it.
        What our bill does, very simply, is add billions of
    additional dollars towards border security and border fencing,
    tracking immigrants who overstay their visas so they can be
    apprehended, and reforming our immigration courts to expedite
    deportation of dangerous individuals. Individuals currently
    here would finally have to register with the Government, give
    us photos and fingerprints. All of that will make America a
    safer place, and that is what I am saying here.
        So the status quo has none of these things, and, therefore,
    no responsible person should be aiming to keep the status quo
    in order. Let us move forward. Let us have this debate. It is
    an open debate. Let us discuss all amendments from all points
    of view. But let us not keep our present system, which everyone
    admits is broken.
        On agriculture, I just want to thank Senator Feinstein for
    her great work, and Senator Hatch and the members of her group.
    They have done an amazing job, and I thank the three of you.
    You are a good example of what we need in America, which is
    people coming together. None of you got everything you wanted,
    but you knew you each did a lot better than the present status
    quo. That happened in agriculture, and I hope that will happen
    in the bill.
        And my one question for Ms. Eastman is very quick, because
    my time is about to run out. Vermont's agricultural market is
    very similar to New York's. We have the same problems. We have
    a fellow in Ontario County, one of the largest cabbage growers
    in the country, who did not plant cabbage this spring because
    he cannot get labor to pick it up. A huge amount of cabbage, a
    huge number of jobs, a huge amount of produce that the American
    people are deprived of. And this bill will rectify that
    situation and give him and many others the labor they need.
        So could you just mention how the bill keeps Northeast
    growers competitive with growers from the rest of the country
    and why it is good for the Northeast and New York? To Ms.
    Eastman.
        Ms. Eastman. Without much time, I would like to narrow it
    down to the fact that the bill does actually allow employers at
    an affordable rate to employ legal workers. The way the H-2A
    program is right now with the paperwork, the timelines, it is
    so difficult to comply with, and the wage rates are just
    exponential. You know, the fact is--I will give you a quick
    example. 1091 is the adverse effect wage rate in New York and
    in Vermont, and you take, say, apple producers. The wage rate,
    piece rate right now in Vermont is $1 per bushel for handpicked
    ciders. In New York, it is 62 cents. There is no consistency,
    and those are done by the Prevailing Wage Survey, and there is
    nothing overseen on that, nor regionalization of wage rates,
    the housing, the transportation. It is very expensive. And yet
    it does provide legal workers. It is difficult to get them
    here.
        So I think, you know--and with the United States Department
    of Ag facilitating the process, it is going to be transparent,
    I believe. They understand ag, the need behind this, and keep
    in mind, I would like to let Mr. Sessions know, Senator
    Sessions know that we do have employers that open up and they
    have to, through the H-2A program, hire any willing, able,
    qualified individual. Anybody is qualified because in the State
    of Vermont we cannot require experience. The Department of
    Labor says we cannot require experience. We have orchards--and
    I would invite you to come visit them during harvest in August.
    They have everybody that applies start picking apples, and they
    pick on trellis trees, which are the easiest. They do not have
    to climb a 20-foot ladder. And by week two, in one orchard,
    Sunrise Orchards in Cornwall, Vermont, they hired eight
    pickers, U.S., everybody that showed up. By week two, there was
    one left, and that one picker asked if he could work in the
    packing house. This orchard needs 55 seasonal workers to bring
    in their crop.
        So when I say Americans will not do the job, it is true.
    They are not doing the job.
        Senator Sessions. Well, there are factors that all go into
    that.
        Chairman Leahy. Trust me, I know that orchard. I know
    exactly what Ms. Eastman is saying, and she stated it very,
    very accurately.
        Senator Cornyn, again, our hearts----
        Senator Sessions. I would note that seasonal workers are
    more justified----
        Chairman Leahy. Senator Cornyn, again, I think I can speak
    for all Vermonters, our hearts go out to Texas for what you
    have gone through, and I appreciate the fact you could be here
    today, and I understand why--there was only one place you
    should have been on Friday, and that was Texas. So thank you,
    and you have extra time because of that.
        Senator Cornyn. Thank you, Mr. Chairman, and I know Senator
    Cruz, who joined me there, appreciates the comments about
    people's concerns, condolences, grieving with people who lost
    their life in that terrible incident last week.
        I want to use the time you have given me, Mr. Chairman, the
    10 minutes--I will actually probably reserve some of that time
    for the second and fourth panels, with all due respect to the
    current panel. But I do have a brief opening statement.
        The bill introduced last week by the bipartisan group
    touches on nearly every aspect of our Nation's immigration
    system. It is truly comprehensive in the sense that it covers a
    wide range of complex and often controversial aspects of our
    immigration law. The bill contains major changes to refugees
    and asylum law, guest worker programs, detention policy,
    worksite enforcement, and overall permanent immigration, both
    in terms of family- and employment-based immigration.
        I fully expect there will be a healthy and I hope
    respectful debate about how we should address the 11 to 12
    million people here in the United States who came into the
    country illegally or overstayed their visa in violation of the
    law, which comprises about 40 percent of illegal immigration,
    the visa overstays.
        That is a conversation we cannot avoid and we must not
    avoid, because it impacts our national security, public safety,
    and the health of our national and local economies.
        While engaging in that conversation, we must give short
    shrift to the scores of other critical immigration reforms
    contained in the bill, including the areas I just mentioned.
    Those who have read the bill know that the legalization program
    for 11 to 12 million people takes up less than 100 pages of the
    844-page bill.
        What is in the other 750 pages? Well, that is important,
    because it turns out quite a lot. And much of it is at least as
    important to our national interest as any solution for the 11
    to 12 million here.
        Mr. Chairman, we have had this bill less than a week, of
    course, as we all know, and we are still analyzing the scores
    of major reforms it contains. But I want to say this to my
    friends who are part of the Gang of Eight. This legislation
    makes a number of positive improvements to our immigration
    system. There are things to commend, both in terms of major
    upgrades to employment-based legal immigration and worksite
    enforcement. There are reforms in this bill that have the
    potential to boost innovation and job growth within the United
    States. And there are reforms that will bolster foreign tourism
    spending and incentivize foreign investors and entrepreneurs to
    invest in U.S. companies and workers.
        I appreciate the attention given in the bill to expanding
    resources for improving assimilation and the integration of
    immigrants in our society, especially in terms of promoting
    English language and civics education.
        But there are a number of areas that this bill need
    substantial improvement in. For example, while well
    intentioned, I regret that the border security element falls
    well short of the sponsors' aspiration to protect the borders
    and maintain U.S. sovereignty. In fact, without major changes,
    the bill could do more harm than good.
        The bill sets what would superficially appear to be a
    worthy target of a 90-percent apprehension rate along the
    southwestern border. But based on our preliminary review, this
    90-percent goal only applies to three of the nine southern
    border sectors and only two out of the five sectors in Texas.
    And so as I read it, the border security provisions in this
    bill will necessarily mean that the Border Patrol will shift
    resources away in a pre-announced fashion from most of the
    border sectors in order to reach the goals for only a few. We
    can only imagine what the transnational criminal organizations
    that move drugs, people, and contraband across our border will
    do in response.
        Border security matters in Texas and along the southwestern
    border, and the bill does not adequately provide for it. And I
    hope my colleagues will work with me to help get it right. I
    think we can do it.
        As I said, the bill is comprehensive, but it is not
    exhaustive. In other words, some important reforms were omitted
    that I think need to be included.
        For example, the bill fails to address the critical needs
    for improvements at our land-based ports of entry, especially
    along the southwestern border. The vitality of these land ports
    of entry is critical both in terms of security but also for the
    economic prosperity that legitimate trade and travel bring to
    our border communities and 6 million jobs in the United States.
        We must use this opportunity to provide meaningful
    infrastructure investment to the ports of entry in order to
    reduce wait times for legitimate trade and travel.
        I am also concerned that the bill does not do enough to
    deal with the biometric exit requirement in current law. This
    is perhaps one of the most concerning areas of the bill
    because, since 1996, there has been a requirement mandated by
    Congress for an entry-exit system. Unfortunately, while the
    entry system works well, the exit system is nonfunctional. I
    want to learn more about the rationale of why the Department of
    Homeland Security has been unable to comply with this
    longstanding mandate of the Congress and why the Department
    continues to drag its feet in implementing the law already on
    the books which requires a biometric exit.
        If we want to get serious about preventing another wave of
    visa overstays, then we have to get this exit system right. I
    remain concerned about the message that this sends by allowing
    individuals with multiple serious criminal convictions to be
    eligible for legalization. It should not be a controversial
    proposition to oppose legalization for someone who, on top of
    their illegal entry or overstay, was convicted of two
    misdemeanor drunk driving offenses or two misdemeanor domestic
    violence offenses or two misdemeanor child abuse offenses.
        It is an affront to the rule of law, I believe, to give the
    Secretary of the Department of Homeland Security the discretion
    to waive the bar and to allow an illegal immigrant who has
    committed three or more types of these offenses a pathway to
    citizenship. So I look forward to working with my colleagues on
    both sides of the aisle to fix that.
        I also worry that the bill's implementation will be
    frustrated by thousands of lawsuits unless we tighten up the
    administrative and judicial review portions of the bill. And,
    finally, the bill falls well short of providing certain
    employers, particularly in the construction industry, with
    access to the labor force they need to run and grow their
    businesses.
        So, Mr. Chairman, I look forward to a spirited and
    respectful discussion of these issues. The challenge before us
    is to make sure we get all of this right. And I would reserve
    the remaining 2 minutes and 26 seconds I have.
        Chairman Leahy. Thank you.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
    you to the witnesses. As a State that has a lot of agricultural
    workers, I am really impressed by all the work that you have
    done and the fact that the Farmers Union, the Farm Bureau, Mr.
    Rodriguez, your amazing work, that all of these organizations
    are supporting this bill. It is truly a tribute to your ability
    to compromise and see the bigger picture.
        And I thought I would start with you, Mr. Rodriguez. I have
    been so impressed by your work, and you can imagine that some
    people still get concerned about what this could mean for
    American jobs with the guest worker agreement. And as someone
    with immense credibility in the labor movement and others
    fighting hard to protect American workers, can you summarize
    why you think this bill is a good thing for American ag
    workers?
        Mr. Rodriguez. Well, first of all, Senator Klobuchar, the
    workers that are currently here right now in the United States
    are going to have an ample opportunity to gain legal status
    through the blue card program and earn legal permanent
    residency.
        Secondly, there is clear language in the bill that calls
    for no discrimination against U.S. workers in favor of guest
    workers, and we had lots of discussions with the employers in
    regards to that. Employers agreed they want to keep experienced
    farm workers that have the ability and have the skills to pick
    their crops. As Ms. Eastman mentioned earlier, it does not help
    the cows to be changing the workforce and have rotating numbers
    of workers. So we want to do everything we possibly can to
    maintain that stability here within the ag industry as much as
    we can.
        And so legalization was our number one issue to try to deal
    with so that we keep the workers that are here right now, keep
    those professional workers, those skilled workers in the
    agricultural industry; and, secondly, to put provisions in the
    bill that there would not be discrimination against U.S.
    workers as the new visa programs are implemented.
        Senator Klobuchar. Thank you very much.
        I have been hearing from ag producers for years about the
    problems with the H-2A program, and I am happy that we are
    going to find a way with this improved program to make this
    work better. And sometimes an alphabet soup of immigration
    programs and the endless rules involved in each can get pretty
    confusing.
        Can one of you explain what you see as the biggest problems
    with the H-2A program as it is and whether you think the bill
    addresses these problems? Mr. Conner.
        Mr. Conner. I know your time is short, Senator, so I will
    just tick off a few here.
        Certainly the wage rates that are part of the H-2A program.
    For your constituency, obviously the fact that it is strictly a
    seasonal program that provides no value for year-round workers,
    so it is of no use to the dairy industry at all.
        And then, secondly, I would just say the administrative
    bureaucracy of the program. Small producers, you know, do not
    have the ability to hire consultants to navigate their way
    through an H-2A application process.
        Senator Klobuchar. That is for sure.
        Can someone explain why you think it is important to have
    the Ag Department oversee the guest worker program instead of
    the Labor Department?
        Mr. Conner. I will try that as well. Let me just say I
    think there are a couple different ways to answer that.
    Certainly there is a structure already in place for not only
    State level USDA offices, but we all know that there is a
    virtual USDA presence in every county in America, certainly
    every major agricultural county. These are offices that
    producers out there deal with quite often. They are quite
    familiar with them. There are people in those offices who are
    used to not only helping the producers but helping them
    navigate through other processes. We believe that producers
    will be quick to use that local system that is well established
    out there in America today.
        Senator Klobuchar. Thank you.
        Ms. Eastman, I thought one of the most important parts of
    your testimony is when you talked about the indirect benefits
    really of the guest workers, the fact that when they are here
    and we have some kind of status that works, that they are going
    to buy things in America. And sometimes they use them here,
    sometimes they ship them back, whether it is motorcycles,
    washing machines, you name it. You also mentioned the positive
    impact for rural areas with stores.
        Could you talk more about these indirect impacts that you
    have seen in your community?
        Ms. Eastman. Yes. Thank you, Senator. One of the best times
    that I have is at the end of harvest. We have a baggage truck
    that has its set route, and it is run by Florida East Coast
    Travel Service, and it is great because when I get the listing
    of where it is going to go, the workers actually know before I
    do. It is like an underground tunnel. They cannot wait. They
    get their bins together, whether they go to Costco, Walmart,
    they buy motorcycles, weed whackers, washing machines, and all
    of this is shipped back because they tell us that it is cheaper
    for them to buy it here and ship it home. I have witnessed them
    pay $200 for a canoe and it costs them $200 to get it home.
        So the point to be made is a lot of the money that they
    make here in the United States is spent locally here as well.
        Senator Klobuchar. Thank you very much, all three of you.
        Chairman Leahy. Thank you very much.
        I have consulted with the Ranking Member, and I am told
    Senator Lee is next. Senator Lee of Utah, please go ahead.
        Senator Lee. Thank you, Mr. Chairman, and thanks to each of
    our witnesses for joining us today. I have got a brief
    statement, and then I have got a couple of questions.
        I recognize that the labor problems facing our agricultural
    industry are different in kind from those in other industries
    and are critically important to our Nation's economy. The
    nature of agricultural work can, of course, deter even the
    hardest working of Americans. The long sporadic hours, a
    distant and secluded worksite, the nominal wages that result
    from low margins for food products and the back-breaking
    physical labor itself all contribute to a relative lack of
    interest in and participation in these jobs by American-born
    workers.
        Creating a sustainable guest worker visa is essential for
    keeping our Nation's farms and ranches fully staffed. That is
    why I introduced the DASH Act, a bill that would expand access
    to the H-2A program for additional categories of workers and
    employers. Addressing problems for agricultural workers and
    employers must be part of any visa reform, so I am glad that we
    are having this discussion this morning.
        I was wondering if I could start with Ms. Eastman, if you
    could tell us a little bit why--sort of restate for us why you
    think that the H-2A program is insufficient, particularly as it
    relates to some of these industries like dairy farming and
    sheepherding.
        Ms. Eastman. I cannot speak to sheepherding----
        Chairman Leahy. Is your microphone on?
        Senator Lee. Microphone.
        Ms. Eastman. Excuse me. I cannot speak to sheepherding
    because I have not had direct access with sheep.
        As far as the dairy farming goes, it is impossible. We have
    two dairy farms that do have H-2A workers, but they are here to
    repair fence and work in quarries that are going to be used as
    pasture. So it is not related to milking cows, which is simply
    an everyday function at these farms. So in part it is not
    available to those folks.
        Senator Lee. Explain to us why it is not.
        Ms. Eastman. It is because right now H-2A is limited to a
    10-month seasonal, so if you are an employer--and that is
    limited to the employer. The H-2A employee can stay here longer
    than that, but they have to transfer. So one individual
    employer can only have H-2A workers on site for 10 months out
    of the year.
        Senator Lee. Which does not work for some of these areas.
        Ms. Eastman. That is right, and it is not based on a fiscal
    year, like you take apples when they come in. You know, it is
    August and they will stay to pick, prune, pack. They have to be
    gone by the end of May. So it is not limited to a fiscal year.
        Senator Lee. And this bill, in your opinion, addresses that
    problem?
        Ms. Eastman. Yes.
        Senator Lee. Tell us how it fixes the problem.
        Ms. Eastman. Well, it fixes the problem because--I think
    actually Mr. Conner can speak to that better with the different
    types of visa applications.
        Senator Lee. Mr. Conner.
        Mr. Conner. Well, it fixes the problem fundamentally by
    creating two different groups of the guest worker program. One
    would be the seasonal at-will program. But the other is a
    contract program, again, where you would have the ability to
    bring in workers on a contract. As you noted, to perform those
    milking functions, the feeding functions on the farm, those
    kind of things where you--you know, as was noted earlier, the
    cows do not stop producing milk. They produce 24/7 every day of
    the year.
        Senator Lee. That is the nice thing about cows. They are
    considerate in that regard to produce year-round.
        [Laughter.]
        Senator Lee. So looking long term, do you think this solves
    it for the long term? Do you see this as a long-term fix or
    something that we would have to tinker with every few years?
        Mr. Conner. There is no question, Senator Lee, that we
    picture this as a long-term fix. This was fundamental to our
    coalition's efforts. We were not looking to come back and do
    this in a few years because we know that that is, you know, not
    going to happen. This has been a problem that has been
    developing really since the mid-1980s, and, you know, we
    believe that the combination of the blue card program for our
    trained existing workforce and the viable guest worker program,
    both at-will and contract, administered by USDA, provides that
    long-term access to the workforce, legal workforce that we are
    going to need to continue to produce the crops and the food for
    America.
        Senator Lee. Can you tell me how the caps work, the caps on
    the number of these visas that will be available?
        Mr. Conner. Yes. There is a cap on these visa workers. In
    year one, that cap would be set at 112,333. As you can note by
    some of those numbers, this was a product of a lot of
    negotiation and compromise on both sides in terms of the
    setting of those caps. Another 112,000 would be then year two
    and year three so that by year three the cap would be 337,000
    workers. From years five onward, there would be no cap, but the
    Secretary of Agriculture would be empowered then to set a cap
    based upon need for the number of guest workers that we would
    have in the country.
        Senator Lee. Okay. And that is part and parcel of why you
    see this as a long-term fix, is because you are then allowing
    us to respond to changing economic circumstances through the
    Department of Agriculture.
        Mr. Conner. Absolutely.
        Senator Lee. Okay. I see my time has expired. Thank you
    very much.
        Thank you, Chairman.
        Chairman Leahy. Thank you very much, Senator Lee.
        Senator Franken.
        Senator Franken. Thank you, Mr. Chairman.
        I just want to take a moment to respond to those who say
    that immigration is such a complex problem that we cannot
    address it with a comprehensive approach. I believe that the
    complexity of this problem and the connectedness of the issues
    involved in immigration speaks to the need for comprehensive
    reform.
        Take, for example, border security. I know that border
    security is critical, and that is why I am very happy to see
    that the strong provisions in this bill are in it. But if all
    you did was secure the border with 10-foot walls, if there is
    still a market for undocumented labor, you would create this
    huge market for 11-foot ladders. And so you need to verify--you
    need to be able to verify workers.
        So, Mr. Conner and Mr. Rodriguez, first of all, I want to
    congratulate you two on working with each other. I think it was
    a great thing. Mr. Conner, one of the important aspects of the
    bill is the delayed phase-in of the employment verification
    requirements. Agricultural employers are not required to
    participate in the E-Verify program until 4 years after
    regulations are issued, which will be about 5 years after the
    passage of the bill. This is going to be very important for
    farmers in Minnesota. Lots of our farmers run pretty small
    operations. It is going to take time for these programs to get
    up and running.
        Can you, Mr. Conner, identify why this delayed
    implementation of E-Verify is important for agriculture?
        Mr. Conner. That is a great question, Senator Franken. Let
    me just say I think the important aspects go to the heart of
    the program, and that is, we really are creating in many ways,
    you know, two brand-new programs here. You have the blue card
    program, and then you have the contract part of the guest
    worker program, and then the at-will part of the guest worker
    program. We know that this is going to be administratively
    difficult. We know there will be bumps and bruises along the
    way on the implementation. This ensures, again, that for
    agricultural production, which is so important in terms of
    timeliness, seasonality, that, you know, there is going to be a
    maximum amount of time here before the E-Verify system is
    kicking in and fully operational, so that we can make sure that
    these three new apparatuses are working, that, you know, the
    caps are being set in an adequate amount to provide the workers
    that we need. You know, it just gives time, because, you know,
    remember, Senator Franken--and you know this--these are very,
    very small businesses out there on our American farms and
    ranches almost by any standard, and, you know, more than
    anything else, we want to make sure that these small producers
    know the program, know what it takes to get the legal workforce
    here before we get to enforcing this thing out on every single
    farm and ranch in America today. I think that is only fair.
        Senator Franken. And especially for these small operations.
    We need to make sure that the E-Verify program has an higher
    accuracy rate than it has now. And I am worried that as we
    introduce millions of immigrants into the system, the error
    rates tend to get higher when you do that. And when you run a
    dairy operation or other small businesses, for that matter, you
    do not have a huge HR department like you might at other
    businesses.
        And so I think this is just very important that we
    understand how this all fits together and that we do it with
    our eyes wide open. But to me, it is absolutely essential that
    we do it at one time because everything is so interrelated.
        I am very pleased with what this is going to do again for
    our dairy industry. Half of all dairy cows in America are
    milked by immigrant labor. And I have called for this to be
    fixed for years. I am glad that Senator Feinstein and Senator
    Leahy have made their efforts to do that.
        In your mind, Mr. Conner, in addition to dairy, what are--
    and, by the way, the Chairman said something about you say to
    cows, ``We are only going to milk you seasonally,'' they do not
    like it. They do not know what you are saying.
        [Laughter.]
        Chairman Leahy. They do in Vermont. Maybe not in Minnesota.
        [Laughter.]
        Senator Franken. Well, okay. I know the Chairman is a
    Deadhead, so no comment on where he got--sorry, Senator.
        [Laughter.]
        Chairman Leahy. Has the Senator finished his questions?
        Senator Franken. No. I have no idea where I was--yes, I
    wanted to--just what are the--aside from dairy, what are the
    one or two most helpful aspects of this agreement?
        Mr. Conner. Well, again, Senator, you know, we have a
    problem in American agriculture today, and it is reflected in
    the fact that, you know, so much of our workforce is currently
    undocumented. You know, for anything else that we have,
    recognize that the problem exists today. So the status quo is
    intolerable. Across all of the agricultural sector, the notion
    that you are going to give us the ability to actually have a
    legalized workforce that we know is legal and can verify that--
    you know, farmers and ranchers are the most law-abiding people
    on this planet. They want to have access to those workers. They
    want them to be legal. And more than anything else, I think
    fundamentally this bill gives us that ability to be legal. And,
    you know, that is huge because the status quo, again, is--you
    know, what are the alternatives? I challenge those to suggest
    that. The current system is broken. We have got to change it.
        Senator Franken. Thank you.
        Thank you, Mr. Chairman.
        Chairman Leahy. Senator Flake.
        Senator Flake. I thank the Chairman and thank the
    witnesses. I just want to thank all of you and Senator
    Feinstein for working so hard to get an agreement here. We were
    kept informed, those of us working on the broader agreement, of
    the progress that was made and the hurdles that you had to
    overcome, and it is not an easy task, I think we all know, and
    so congratulations for working together on this and getting
    this done.
        As I mentioned when we launched the broader bill last week,
    I grew up on a farm, working alongside migrant labor, and I
    know the motivations that they have. I know how difficult it
    is. And I know that they were here to make a better life for
    themselves and for their families. And for the life of me, I
    have never been able to place all those who come here across
    the border undocumented in some criminal class. It just has
    never rung true to me that way. And so I want a solution here.
    Farm work is tough work. I made it off the farm with almost all
    of my digits, just lost the end of one in an alfalfa field. But
    I can tell you, I am here largely in politics because I got
    tired of milking cows. It is a tough job. You cannot tell them,
    you know, ``We are not going to milk you today.'' It just does
    not work. I have tried. I have tried. It does not work.
        But I appreciate what you have done here, and, Mr. Conner,
    I appreciated working with you when you were at the USDA on
    other issues, and I appreciate the work that you have done.
        Let me just say, in your experience, I know that you have
    been working on a solution just for ag for years now. Why is
    that so difficult? And why is it important to have this as part
    of the broader bill? Why is it easier as part of a
    comprehensive package or at least possible? I know that you
    have been working on this. Why has it not been possible to
    achieve on its own?
        Mr. Conner. Well, Senator, you are absolutely correct in
    that agriculture has--you know, this is not a realization that
    has come about just in the last few months. We have known we
    have had a problem for a very, very long time, and, you know,
    we have worked with Senator Feinstein on solving just
    agriculture's problems for a very, very long time as well. And
    I would just say that history suggests that, you know, that did
    not work, that, you know, the agricultural problem in and of
    itself probably was not going to produce successful
    legislation.
        So, you know, being a part of this comprehensive effort,
    again, our negotiations have been very, very limited to just
    the agricultural piece, but we appreciate the fact that, you
    know, as part of the broader package there seems to be some
    momentum to get something done this year because we have been
    talking and proposing solutions and in some cases even
    producing legislation for a very, very long time because this
    has been a problem for a long time. We believe 2013 reflects,
    you know, what I have described to many as the best chance in a
    generation to stop talking about it and finally fix it.
        Senator Flake. Can you just go on with that? If we fail to
    reach an agreement here and there is no agreement just with the
    subset of agriculture, what would the consequence be? How much
    of our industry do we stand to lose if we cannot reach
    agreement here?
        Mr. Conner. Well, the consequences are substantial,
    Senator. Some of those I put in my opening statement, but, you
    know, again, the status quo means that a large, large
    percentage of the American workforce--doing nothing means a
    large percentage of the American workforce is going to continue
    to be undocumented workers in this country, people that are not
    here legally. Again, this is untenable to the American producer
    out there, that somehow we cannot give him or her a legal
    workforce. So that is first.
        Secondly, we do have labor shortages in this country, and
    it is resulting in crops going unharvested. It is resulting in
    agricultural production--and I cited the case of the California
    study of tens of thousands of acres moving to another country.
    That pattern will continue if we do not fix this problem.
        Senator Flake. Just in the remaining seconds I have, some
    will argue that if we do not have a foreign labor force, then
    that simply means more jobs for Americans. But how does the
    lack of a program like this affect U.S. jobs or American worker
    jobs?
        Mr. Conner. Well, several have raised this point, and
    perhaps Arturo has a comment, too. I know time is running out,
    but I will just say this issue has been studied and looked at
    exhaustively. Senator Feinstein has been personally involved in
    a number of efforts out there to really sort of demonstrate,
    you know, are we replacing U.S. jobs here? Are there people out
    there that would really do this but we are just not paying
    enough or something is wrong and, therefore, we are turning to
    these foreign workers? It has been proven time and time again,
    study after study, several cited in my written testimony, that
    is not the case. They will not do this work. And without this
    workforce, again, food production will go overseas and crops
    will be left unharvested in the U.S., period.
        Senator Flake. All right. Thank you.
        Chairman Leahy. Thank you.
        Next is Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman.
        I will note at the outset that I regret I was not able to
    be here at the hearing on Friday. I joined my colleague Senator
    Cornyn down in West, Texas, visiting with the victims of that
    horrific accident, and I want to thank my colleagues and the
    millions of Americans who have lifted up the citizens of West
    who have been suffering through that tragedy. Both West, Texas,
    and obviously Boston have both in the past week had horrific
    tragedies, and all of us are lifting up those who lost their
    lives, their families, and loved ones, and the many who are
    injured and suffering. And so I am grateful for the great many
    prayers for the citizens of West in their suffering.
        I want to thank each of the three of you for being here
    today, for your very able testimony, and for your hard work and
    commitment to immigration reform. And, indeed, I would like to
    thank all of the Members of the so-called Gang of Eight, who I
    think have worked very, very hard on this very difficult issue
    to try to reach a solution to a very difficult problem. And so
    I comment the efforts of the four Democrats, the four
    Republicans, who have worked very hard on this.
        I think there is enormous agreement in this country that
    our immigration system right now is broken. I think that is
    bipartisan agreement. I think it is across the country. I think
    there are huge challenges. I think those challenges are
    particularly acute in the agricultural area. And I will note
    for me this is an issue that is not simply abstract. I am proud
    to be the son of an immigrant who came from Cuba with nothing,
    and to be the grandson of an agricultural worker. My
    grandfather worked in the sugar canes on a plantation in Cuba
    in very difficult circumstances. And, indeed, I would note--
    and, in fact, I would like to commend the senior Senator from
    California for this very substantive report that she has put
    together. I think it is very well done, and I think it very
    effectively tells the story of how the current system is not
    working. Indeed, I made a point of reading the section on
    Texas, and I will note that what is contained there very much
    comports with what I have heard from farmers and ranchers
    throughout the State of Texas. Agriculture is critical to my
    State, as it is to her State, and I suspect to the States of
    every Member of this Committee.
        I think all of us would like to see a bill that fixes the
    broken immigration system. And I would suggest, in my view, the
    strategy that will be effective to pass a bill is to focus
    where there is wide bipartisan agreement. That is how we will
    actually get a bill passed. And in my judgment, there are two
    broad areas where there is bipartisan agreement right now.
        Number one, I think there is bipartisan agreement that we
    have got to get serious about securing the border, that we need
    to increase manpower, that we need to increase technology, that
    we need to fix the problem. In a post-9/11 world, I think it
    does not make sense right now that we do not know the criminal
    history, we do not know the background of those coming in. And
    I think there is wide agreement we should fix that, including
    the problem of visa overstays, which is a significant component
    of illegal immigration today.
        I think there is likewise wide bipartisan agreement that we
    need to improve legal immigration, that we need to streamline
    it, that we need to reduce the bureaucracy, reduce the red
    tape, reduce the waiting periods.
        One of the things that all three of the witnesses have
    talked about today are the difficulties of the existing H-2A
    system and having that system work, and one of the reasons we
    see illegal immigration at the levels we do is because our
    legal immigration system is not working effectively. And I
    think we should all be champions of legal immigrants, making
    the system work, and not just welcoming but celebrating legal
    immigrants.
        I think if we are going to see an immigration reform bill
    pass, that should be the focus of the bill. I think if instead
    the bill includes elements that are deeply divisive--and I
    would note that I do not think there is any issue in this
    entire debate that is more divisive than a path to citizenship
    for those who are here illegally. In my view, any bill that
    insists upon that jeopardizes the likelihood of passing any
    immigration reform bill.
        So it is my hope that passing a bipartisan bill addressing
    areas of common agreement, securing the border, improving legal
    immigration, improving agricultural workers to ensure that we
    have workers who are here out of the shadows, able to work
    legally, I hope that that reform legislation will not be held
    hostage to an issue that is deeply, deeply divisive, namely, a
    pathway to citizenship. In my view, that is how we get
    something done. We focus on areas of agreement, not on areas of
    disagreement. And I am hopeful that over the course of
    consideration we will see some consensus come together to do
    exactly that.
        Thank you.
        Chairman Leahy. Thank you, Senator Cruz.
        Senator Graham.
        Senator Graham. Thank you, Mr. Chairman. I will pick up
    where my friend from Texas left off about consensus.
        I may be wrong, but after having dealt with this since
    2005, I think we are beginning to reach consensus as a Nation.
    The first consensus we have reached is the current system is
    not working. If you are worried about amnesty, that is exactly
    what we have. We have 11 million people roaming around the
    country with really no way to find out who they are under the
    current construct.
        Senator Cruz is right. If you are trying to access legal
    labor, it is incredibly hard to do. The visas run out. It is
    just too complicated. So I think most Americans believe the
    status quo will not work. They want their borders secured.
    There is consensus. There are very few people in this country
    who think that border security is not a good thing. And visa
    control, 40 percent of the people here illegally did not come
    across the border. They overstayed their visas. All the
    hijackers on 9/11 were visa overstays. And if Boston tells us
    anything, we need to be aware of who is living among us,
    whether native born or come in on a visa and become a citizen.
    We can be threatened by our own people.
        So there is a consensus about border security, there is a
    consensus the status quo should be replaced. I think there is a
    consensus about what Senator Cruz said, a guest worker program,
    with this caveat--this is where Senator Sessions and I kind of
    join forces. I do not want a foreign worker to come into the
    country and take a job from a willing American worker. The only
    time I want you to be able to hire somebody, Mr. Rodriguez, is
    when an American worker will not do the job after you advertise
    at a competitive wage. And until you get this system kind of
    under control, we really do not know. Is it because--why are
    there almost no native-born workers in agriculture? Is it
    because the work is too hard and we have moved on as a people?
    Or because the wages are too low and most of them are illegal
    immigrants? We will not know until we get order out of chaos.
        I think the other thing that people have come to grips
    with--and this is where Senator Cruz and I disagree--is that
    the 11 million are not going to go away. And most people are
    okay with a pathway to citizenship, 70 percent, if it is
    earned, if you do not cut in line of those who have been
    patiently waiting, if as a condition of staying here you have
    to go through a criminal background check, you have to pay a
    fine, if as a condition of staying here to become a citizen you
    have to learn the language and hold a job. And we are talking
    about a 10-year minimum before you can even apply for a green
    card, and the conditions on the pathway to citizenship are that
    you have to learn our language, you have to pay a fine for the
    crime you committed, you have to go through a criminal
    background check, and you have to keep a job.
        I think most Americans would say that is a practical
    solution, and most Americans, like me, do not want to deal with
    this 20 years from now. And my goal is to end this debate and
    get it right. We did not get it right in 1986.
        When it comes to the agriculture community, Mr. Conner, do
    you believe that most people working in agriculture are non-
    citizens or illegal immigrants?
        Mr. Conner. Senator Graham, I believe the statistics do
    verify that, you know, the numbers are somewhere between 60 to
    70 percent of our agricultural workforce are undocumented----
        Senator Graham. Why is that? Mr. Rodriguez, do you agree
    with that?
        Mr. Rodriguez. Yes, sir. That is what I understand.
        Senator Graham. Why is that?
        Mr. Rodriguez. Well, I think you pointed out some of the
    reasons, sir. You said that, you know, the current systems that
    are in place affect not----
        Senator Graham. Willing employers cannot get enough legal
    labor because there are limits on the visas and it is
    complicated and expensive. Do you all agree with that?
        Mr. Conner. Yes.
        Mr. Rodriguez. Yes. We have made changes as a result of
    that, and the fact that these are dangerous, seasonal, low-
    paying jobs.
        Senator Graham. Everybody said yes, okay.
        Do you also agree it appears that meat packing, poultry,
    agriculture, some of these more labor-intensive jobs, that it
    is hard to find labor here in our country? Do you agree with
    that?
        Mr. Conner. Well, Senator, let me just respond. I am not
    here representing the meat packing industry, but the six
    categories, if you will, of agricultural workers out there--
    and there is no question that I wholeheartedly agree with that
    statement, that you cannot get Americans to do this work.
        Senator Graham. Well, and here is the question. If you paid
    them $40 an hour, you probably could, but nobody would be left
    in American agriculture. They would go to Mexico. So we have
    got to find a way, in my view, to replace our agricultural
    workforce that is 60 to 70 percent illegal and everybody should
    be legal. There is no benefit to our economy by having a bunch
    of illegal workers in any part of the economy dominate that
    part of our economy.
        So what I think we have done with this bill is we have
    tried to strike a balance, and Senator Rubio and Senator
    Feinstein in my view have done a good job to replace the
    illegal workforce with a legal workforce.
        And one last thought, Mr. Chairman, just indulge me for a
    second. The pathway to citizenship has three triggers: there
    has to be a border security strategy created by Homeland
    Security before the pathway to citizenship can be fully
    implemented; you have to have E-Verify up and running; and you
    have to have entry and exit control visas before people can
    transition from a temporary legal status to get a green card. I
    think those three triggers make sense.
        If this Committee can make those triggers more effective,
    if Senator Cornyn can help us on the exit visa system, count me
    in. If we can find ways to secure the border better, Senator
    Cruz, count me in.
        At the end of the day, I want to make sure that we do not
    have a third wave, and getting the agricultural part right,
    since 60 to 70 percent of the workers in agriculture are
    illegal, seems to be a good place to start.
        So I would like to compliment the authors of this part of
    the bill and say you have done a good job and let us make it
    better if we can.
        Chairman Leahy. Thank you.
        I want to thank this----
        Senator Grassley. May I have 15 seconds?
        Chairman Leahy. Go ahead.
        Senator Grassley. I have been where the Chairman has been
    as Chairman of the Committee, and we have to move on. But I do
    want the record to show that we were hoping to have a second
    round, and so we will submit our questions for answer in
    writing.
        Chairman Leahy. I appreciate that, because I am looking at
    the number of witnesses we have today. It is going to take some
    time. Of course, we will have another panel tomorrow with the
    head of Homeland Security.
        [The questions appear as submissions for the record.]
        Chairman Leahy. I want to thank Mr. Rodriguez, Mr. Conner,
    and Ms. Eastman for being here. Each one of you have been very,
    very helpful in putting this together. And I wanted to thank
    Senator Feinstein, Senator Hatch, and others who have worked so
    hard on the agriculture part of this. So thank you all very,
    very much.
        Mr. Rodriguez. Can we make any final points?
        Chairman Leahy. If you would like to make a brief final
    point, each of you, go ahead.
        Mr. Rodriguez. It will be very brief. Again, we just want
    to thank the Committee for all their hard work, and we want to
    certainly thank once again Senator Feinstein for her diligence
    in all this. But just one closing thought.
        I think what we tried to do here in working together over
    the past few months and years is to really do something that
    would both honor farm workers in this country and the work that
    they do do. And, secondly, that we do have an industry, an
    agricultural industry, that will maintain its viability. I
    think all of us in America want to see products produced here
    when it comes to our fruits and vegetables.
        Chairman Leahy. Having had the honor of serving as Chair
    and also as Ranking Member of the Senate Agriculture Committee,
    I want the most powerful Nation on Earth that we can supply our
    own food and our own agriculture, and I want a vibrant, from
    east to west, north to south, agricultural community. So thank
    you all very, very much for being here.
        Chairman Leahy. While we are changing, would Megan Smith,
    Jim Kolbe, Tamar Jacoby, Rick Judson, Brad Smith, Ron Hira,
    Neeraj Gupta, and Fred Benjamin please come forward? We will
    set up the table.
        [Pause.]
        Chairman Leahy. I thank all the witnesses for being here.
    Just so everybody will understand, we are going to go straight
    through the noon hour because of the numbers we have. Some
    Senators will be going in and out for lunch and other meetings
    that are taking place.
        We will begin with Megan Smith, who is the commissioner of
    the Vermont Department of Tourism and Marketing. She was
    appointed by Governor Shumlin in 2011. Before that, of course,
    she was--well, we know, anyway, that she was in the Vermont
    Legislature, and before she became commissioner, she and her
    husband owned and operated the Vermont Inn in Mendon, which is
    a very nice place--nice town, nice inn--for over a dozen years.
        Ms. Smith, please go ahead.

     STATEMENT OF MEGAN M. SMITH, COMMISSIONER, VERMONT DEPARTMENT
             OF TOURISM AND MARKETING, MONTPELIER, VERMONT

        Ms. Smith. Chairman Leahy, Ranking Member Grassley, and
    Members of the Committee, I am pleased to be here today on
    behalf of the Vermont Department of Tourism and Marketing and
    the broader travel community to highlight the importance of
    travel-related provisions included in immigration reform.
        Vermont is very dependent on tourism. Our percentage of
    jobs in the industry is twice the national average, at 38
    percent. The majority of our businesses are small and family-
    owned, and agritourism is growing at a very high rate. We are
    starting to see a steady increase of international visitors,
    and it is a market that we are focusing on much more with the
    support of Brand USA. While we benefit from being a weekend
    destination for millions of travelers, in order for small
    businesses to flourish, we need to attract more international
    travelers who stay longer--an average of 14 days--and spend
    more money.
        Our Nation does not remain competitive in the global travel
    marketplace. From 2001 through 2010, our market share of the
    world traveler fell from 17 to 12 percent. This resulted in
    more than 78 million international travelers going somewhere
    else and the U.S. losing 467,000 jobs and $606 billion in
    revenue over those years.
        Understanding the economic importance of growing
    international visitation, let me highlight some important
    provisions in the immigration bill that will address some of
    the most pressing barriers facing inbound business and leisure
    travelers in the U.S.
        We fully support all the provisions in the JOLT Act that
    were included in the proposed legislation. In particular, we
    strongly support expansion of the Visa Waiver Program, which is
    critical to both our national security and our economic health.
    According to Commerce Department data, VWP visitors spent
    nearly $67 billion and supported 525,000 American jobs in 2011.
        Easing unnecessary restrictions on visitation from Canada
    will only enhance the already strong diplomatic and economic
    ties between the two countries. Vermont has a distinct and
    important relationship with our Canadian neighbors. This
    relationship is especially strong in the northern region where
    thousands of Canadians own second homes. As these homeowners
    reach retirement, they are interested in spending more time in
    the U.S., so we strongly support increasing their time to
    remain in the U.S. to 240 days.
        Vermont has also been a pioneer of the EB-5 program through
    the unparalleled efforts of Jay Peak Resort's Bill Stenger,
    making our State the first in the country to successfully
    utilize this program for resort development and expansion. Jay
    Peak is a perfect example of this program's benefits for the
    economy and the local community, where jobs are scarce in that
    part of Vermont and conventional lending is not an option. We
    appreciate the inclusion of a permanent authorization of this
    important program.
        We also very much appreciate inclusion of the reforms to
    the H-2B visa program which is highly important to employers in
    seasonal tourism industries--most importantly the States with
    lower populations and dense visitor seasons. Ski resorts in the
    winter and beach communities in the summers rely on these
    workers who not only prove to be excellent employees but bring
    a cultural experience to States that do not necessarily enjoy a
    great deal of diversity. When a trained employee can return for
    several years in a row, it is a great benefit to all. We thank
    you for including Sections 4601 and 4602 in the bill.
        In order to enhance security while also facilitating
    legitimate travel and trade, we strongly support the addition
    of the 3,500 Custom and Border Patrol officers included in this
    legislation. In order to ensure the officers are allocated
    appropriately, we urge the Committee to work with the CBP to
    identify and specify the number of officers needed at air,
    land, and sea ports of entry.
        Lastly, I would like to highlight one of our areas of
    concern. The proposal in Section 6 of the immigration bill to
    gut the funding for Brand USA by 75 percent will stifle the
    organization's global impact and hurt States like Vermont that
    depend on Brand USA to reach new markets. The 2010 passage of
    the bipartisan Travel Promotion act was supported by an
    overwhelming majority of the U.S. Senate, including Senators on
    this Committee. I represent the small rural States on the Brand
    USA Marketing Committee. This organization has allowed those of
    us that are not gateway States to finally have a voice in the
    international travel market. Since Brand USA and Vermont have
    partnered together, it has allowed Vermont to enter the markets
    of Great Britain and Japan, using Boston, New York, and
    Montreal as gateways. Partnering with Jet Blue, we have already
    seen an increase in visitation to Vermont through JFK, and I
    have been able to hire a PR firm in both of these markets to
    promote Vermont tourism.
        Cutting Brand USA's funding by taking 75 percent of the TPA
    fees for border security will have an immediate negative impact
    on the travel community across the U.S. There are excess funds
    in the ESTA that are not being used by Brand USA. The
    immigration bill should focus solely on using those funds for
    new border security initiatives.
        In conclusion, if the U.S. recaptures its historic share of
    worldwide overseas travel by 2015 and maintains that share
    through 2020, it will add nearly $100 billion to the economy
    over the next decade and create nearly 700,000 more U.S. jobs.
    The positive travel provisions in this bill will help us
    achieve this goal.
        I very much appreciate the opportunity to testify today.
        [The prepared statement of Ms. Smith appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        Our next witness is former Congressman Jim Kolbe from
    Arizona's 5th District, I believe. He served for 22 years.
    President Obama recently appointed Mr. Kolbe to the Advisory
    Committee for Trade Policy and Negotiations. He provides policy
    advice on trade matters, and he and I worked together on a
    number of significant matters during his years in the House,
    and we are glad to have you back here.
        Please go ahead.

        STATEMENT OF HON. JIM KOLBE, A FORMER REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Mr. Kolbe. Thank you, Senator Leahy. Senator Leahy and
    Members of the Committee, thank you for inviting me to testify
    before you today on behalf of the Border Security, Economic
    Opportunity, and Immigration Modernization Act of 2013.
        I had the privilege of serving in the United States
    Congress from 1985 until 2007, representing Arizona's 5th and
    8th Congressional Districts. Immigration is an issue that has
    always been in the forefront in this border district.
        I applaud the Senators in the so-called Gang of Eight,
    especially my colleague Senator Flake from Arizona, who spent
    many months preparing this legislation. The bill currently
    before the Committee is an excellent start that offers many
    positive provisions to help U.S. businesses, our immigrant
    population, and our country as a whole. Others on this panel
    will discuss various economic considerations, but I want to
    talk about one particular provision: completing family
    unification.
        I know, as the partner of a Panamanian immigrant, how
    especially difficult it can be to build a life and protect your
    family under our current, cumbersome system. While the bill you
    are considering is an excellent starting point, I submit to you
    that it is still incomplete. Families like mine are left behind
    as part of this proposal. Equally important, U.S. businesses
    and our economy suffer because of the omission of lesbian, gay,
    bisexual, and transgender families from the bill introduced
    last week.
        My partner and future husband, Hector Alfonso, was born in
    Panama and came to the Unites States on a Fulbright Scholarship
    to pursue graduate studies in special education. He has been a
    dedicated teacher for almost two decades. Hector was forced to
    return to Panama when his work visa expired. Our 12-month
    separation, like that of any American from their spouse, was
    painful. Hector returned to Panama while he applied for another
    visa. Eventually, we accomplished this, but it was a long
    process and it was expensive--far beyond the reach of most
    families.
        Just a month from now, Hector and I will legally marry here
    in the District of Columbia, surrounded by family and friends.
    We are immensely fortunate that Hector has now secured an
    investment visa that allows him to remain here with me. Many
    other couples, however, are not so fortunate. Their ability to
    secure a solution that would allow them to build a home,
    family, or business together is elusive and difficult to
    realize. This Committee has an opportunity to fix this problem.
        The Uniting American Families Act, UAFA--legislation
    sponsored by Chairman Leahy and Senator Collins--would make a
    profound difference in the lives of many Americans and their
    families. By amending our immigration laws to treat lesbian and
    gay families as our Nation treats other immigrant families,
    UAFA would ensure American citizens are not torn apart from
    their loved ones or forced into exile abroad.
        The comprehensive immigration reform bill now under
    consideration by this Committee includes important provisions
    to make U.S. businesses more competitive. UAFA does the same,
    which is why it is supported by Fortune 500 companies like
    Intel, Marriott, Texas Instruments, and U.S. Airways. The
    failure to recognize lesbian and gay families in our
    immigration laws has a direct impact on American business.
        In a letter last month to the eight Senators who authored
    the Border Security, Economic Opportunity, and Immigration
    Modernization Act, a coalition of 28 of our country's most
    prominent companies wrote:
        ``We have each worked to help American employees whose
    families are split apart because they cannot sponsor their
    committed, permanent partners for immigration benefits. We have
    lost productivity when those families are separated; we have
    borne the costs of transferring and retraining talented
    employees so they may live abroad with their loved ones; and we
    have missed opportunities to bring the best and the brightest
    to the United States when their sexual orientation means they
    cannot bring their family with them.''
        It is not just major corporations that lose out, Mr.
    Chairman. In Columbia, South Carolina, a restaurant owner with
    25 employees recently made the difficult decision to close his
    business in order to move so he could be with his partner. In
    Los Angeles, a young entrepreneur who employed 30 U.S. workers
    shut his doors after his Canadian partner's visa expired and
    they were forced into exile. These are stories that should give
    us all pause and cause us to reflect on the price to both
    American businesses and American families when we choose to
    leave some of our fellow citizens out of a reform to our
    immigration laws.
        It is time, Chairman Leahy and Members of this Committee,
    to fix this part of our immigration law. The opportunity is too
    rare and the positive impact too great to leave anyone behind.
    Adding UAFA to the Committee bill would be a big step toward
    making it a truly comprehensive bill.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Kolbe appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much, Congressman. I
    appreciate that.
        Tamar Jacoby is the president and CEO of ImmigrationWorks
    USA, a national federation of small business owners working to
    enhance the immigration law.
        Thank you for being here. Go ahead, Ms. Jacoby.

      STATEMENT OF TAMAR JACOBY, PRESIDENT, IMMIGRATIONWORKS USA,
                             WASHINGTON, DC

        Ms. Jacoby. Thank you, Chairman Leahy, Ranking Member
    Grassley, Members of the Committee. Thank you for this
    opportunity to testify. I am Tamar Jacoby, president of
    ImmigrationWorks USA.
        IW is a national federation of small and medium-sized
    businesses from across the sectors that hire immigrants, and I
    am here today on behalf of my members to express our support
    for this legislation. The less-skilled temporary worker, W-visa
    program in particular, is a thoughtful, innovative blueprint,
    and we look forward to supporting passage.
        But we also hope the measure can be improved, most
    importantly increasing the size of the W-visa program so it
    works to prevent future illegal immigration, diverting today's
    unauthorized immigrant influx and replacing it with a legal
    labor force.
        I am going to use my time today to address three issues:
        Number one, the economic benefits of less-skilled
    immigration. The U.S. workforce is changing. American families
    are having fewer children with birth rates now well below
    replacement level. Ten thousand baby boomers are retiring every
    day, and the much younger workers coming up behind them are
    much more educated than their parents.
        In 1960, 64 percent of American workers were high school
    dropouts. Today the number is less than 10 percent. And
    together these three factors have had a dramatic effect on the
    pool of Americans available to fill low-skilled jobs.
        It is no accident that my members are constantly
    complaining about their difficulty finding workers. The pool
    they have to draw on is shrinking alarmingly. For those seeking
    to hire unskilled men of prime working age, the supply of U.S.
    workers is literally half the size it was in 1970.
        But, if anything, demand for less-skilled workers is
    growing. In 1955, 25 cents of every dollar spent on food was
    spent in a restaurant; today it is 50 cents. And one of the
    fastest growing occupations in America is home health aide.
        Bottom line: we need less-skilled immigrant workers. We are
    going to need them increasingly in the years ahead. And far
    from taking jobs from Americans, by and large immigrants
    support and create jobs for U.S. workers. Low-skilled immigrant
    workers allow restaurants, for example, to expand, creating
    jobs for U.S.-born chefs, U.S.-born waiters, restaurant
    managers, and others--farmers, janitors, architects, you name
    it, up and downstream in the economy.
        The urgent question for the Nation is how to fill this need
    for less-skilled immigrant workers, which brings me to my
    second issue: the design of the W-visa program. The Gang of
    Eight Senators faced a daunting challenge in creating a less-
    skilled worker visa program. The existing programs offered
    little to build on. Both are intensely disliked by employers
    and labor advocates alike. But the Senators largely succeeded,
    in my estimation. The W is a program is creative, well-crafted
    blueprint. Among its most innovative features, in contrast to
    other temporary worker programs, workers would not be tied to
    specific employers but can change jobs at will, accepting work
    from any employer enrolled in the program, approved to
    participate in the program. This was a win-win for workers and
    employers, most particularly for employers, providing
    flexibility and the possibility of hiring in real time.
        Number two, the size of the program is designed to adjust
    automatically in response to changing U.S. labor needs, growing
    in good times when the economy needs more workers and shrinking
    in down years when Americans are out of work.
        Number three, employers who participate in the program are
    required to try to hire Americans first and pay the same or
    more than they pay American workers. But in contrast to
    existing temporary worker programs, applying for a W-visa slot
    is relatively simple, straightforward, and predictable.
        Bottom line: My members and other employers find much to
    admire in the W-visa program. Our main concern--and this is my
    last point--is that the program may not be large enough to
    accommodate U.S. labor needs and as a result may not succeed in
    replacing the existing flow of illegal immigrants with a legal
    foreign labor force.
        Without a workable temporary visa program, the Nation can
    have no hope of ending illegal immigration. Of course,
    enforcement can help control the flow, but ultimately the best
    antidote to illegal immigration is a legal immigration system
    that works, meeting unmet U.S. labor needs with an adequate
    supply of legal foreign workers.
        We learned this lesson the hard way since 1986, and if we
    repeat that mistake again this year, in 10 or 20 years we are
    going to find ourselves in exactly the same predicament,
    wondering what to do about a new 11 or 12 million unauthorized
    immigrants.
        Most scholars trying to predict future labor needs base
    their estimates on the past, and most suggest that in average
    years to come, U.S. labor needs could attract as many as
    250,000 to 350,000 to even 400,000 less-skilled workers.
        Will the W-visa program be able to accommodate these
    workers? Certainly not in its first 4 years, when the quota
    will range from 20,000 to 75,000. And even the program's upper
    limit of 200,000 may be too low, even with potential exemptions
    for spouses and others.
        My written statement includes a number of ideas about how
    potentially to improve and expand the W-visa program, but in
    closing, I would like to underscore how much I and my members
    appreciate the work of the Senators who crafted this
    legislation. We look forward to working with this Committee and
    others in Congress to improve the W-visa program and pass the
    Border Security, Economic Opportunity, and Immigration
    Modernization Act.
        [The prepared statement of Ms. Jacoby appears as a
    submission for the record.]
        Senator Franken [presiding]. Thank you, Ms. Jacoby.
        Next is Rick Judson, a builder and developer from
    Charlotte, North Carolina, who currently serves as the Chairman
    of the Board of the National Association of Home Builders.
        Welcome, Mr. Judson.

       STATEMENT OF RICK JUDSON, CHAIRMAN OF THE BOARD, NATIONAL
              ASSOCIATION OF HOME BUILDERS, WASHINGTON, DC

        Mr. Judson. Thank you very much. On behalf of the more than
    140,000 member companies of the National Association of Home
    Builders, thank you, Chairman Leahy and Ranking Member
    Grassley, for the opportunity to testify today. My name is Rick
    Judson. I am a builder and developer from Charlotte, North
    Carolina, and NAHB Chairman of the Board.
        The Senate bill takes meaningful steps toward comprehensive
    immigration reform. NAHB appreciates the work of the Gang of
    Eight to include a fair and workable employer verification
    system that honors the direct employer-employee relationship
    and the current ``knowing'' liability standard.
        American and immigrant workers working alongside each other
    is not a new development in our industry. The inflow of
    foreign-born labor into construction is cyclical and coincides
    with overall housing activity. Their share was rising rapidly
    during the housing boom years even when labor shortages were
    widespread then. However, even during the severe housing
    downturn, the construction labor force continued to recruit new
    immigrants to replace, for example, native and foreign-born
    workers leaving the industry.
        According to the 2011 American Community Survey, foreign-
    born workers account for 22 percent of the construction labor
    force nationally, but it does vary from State to State. States
    with a larger share of foreign labor are more likely to
    experience difficulties in filling construction job vacancies
    as the home-building economy continues to improve.
        The improvement in housing markets over the last year
    represents new labor challenges for us all. In a recent NAHB
    survey, almost half of the builders surveyed experienced delays
    in completing projects on time. Fifteen percent of the
    respondents had to turn down some projects, and 9 percent were
    lost or cancelled due to the result of labor shortages
    directly.
        Despite our efforts to recruit and train American workers,
    our industry faces a very real impediment to full recovery if
    work is delayed or even cancelled due to the worker shortages.
    The W-visa program reflects a very good faith attempt on the
    part of the negotiators to address a serious matter that has
    been ignored for decades.
        Unfortunately, the program is near unworkable for many
    segments of the residential construction industry. The distinct
    set of rules for the construction industry, including an
    arbitrary and meager cap, not only ignores but often in cases
    rejects the value of the housing industry to the Nation's GDP.
    Our industry should be afforded the same opportunities as any
    other segment of the economy.
        The 8.5-percent unemployment trigger is perhaps the most
    concerning component of the program. Putting an unemployment
    trigger in the program ignores the simple fact that immigrant
    workers and native-born workers sometimes perform jobs that are
    dependent upon one another during the process.
        The inclusion of a commission in the program is yet another
    misstep. Only the marketplace can best make wage and worker
    shortage determinations. The most accurate way to measure
    whether immigrant workers are needed is for employers to try,
    and either succeed or fail, to hire U.S. workers.
        Moreover, for NAHB members, the concept of prevailing wage
    is very unfamiliar, and most would be deterred from the complex
    requirements under such a program.
        Another component of the W-visa program that should be
    addressed is the 90-day attestation requirement. This
    inflexible rule should simply be eliminated. Construction is
    project based, and employers must be given flexibility if a
    project is cancelled, completed, delayed, or by any other means
    of the employer--something outside his control.
        Another concern is the inclusion of complete portability. A
    registered employer faces the stark reality that a W-visa
    holder, on the first day of work, has the option to immediately
    quit and go elsewhere. NAHB believes that employers should have
    some assurances that after navigating the confusing and
    expensive process, the visa holder will actually have to show
    up for work. Employers should be given some sort of credit for
    lost resources based on that component.
        All these issues are complex, and NAHB welcomes a strong
    legislative debate. Tackling comprehensive immigration reform
    is an enormous task. Congress should not ignore the importance
    of the housing industry to the Nation during this critical
    juncture in the housing industry.
        Thank you very much.
        [The prepared statement of Mr. Judson appears as a
    submission for the record.]
        Senator Franken. Thank you, Mr. Judson.
        Brad Smith has served as the general counsel and executive
    vice president of Legal and Corporate Affairs at Microsoft
    since 2002. Mr. Smith is responsible for Microsoft's legal
    work, intellectual property portfolio, patent licensing
    business, government affairs, and philanthropy work.
        Please go ahead.

      STATEMENT OF BRAD SMITH, GENERAL COUNSEL AND EXECUTIVE VICE
    PRESIDENT, LEGAL AND CORPORATE AFFAIRS, MICROSOFT CORPORATION,
                          SEATTLE, WASHINGTON

        Mr. Smith. Well, thank you, Senator Franken and Ranking
    Member Grassley, for the opportunity to be here today and to
    support comprehensive immigration reform, including changes in
    the high-skilled immigration area.
        At Microsoft and across the technology sector, we are
    increasingly grappling with a significant economic challenge.
    We are not able to fill all the jobs that we are creating. The
    numbers help tell the story.
        At a time when unemployment nationally hovers just below 8
    percent, the unemployment rate in the computer and mathematical
    occupation has fallen to 3.2 percent, and in many States and in
    many sub-categories, it has fallen below 2 percent.
        Unfortunately, the situation is likely to get worse rather
    than better. The Bureau of Labor Statistics has estimated that
    this year the economy is going to create over 120,000 jobs, new
    jobs, that will require a bachelor's degree in computer
    science. And yet we estimate that all of the colleges and
    universities in the country put together will produce this year
    only 51,474 of these degrees. That is why high-skilled
    immigration and this legislation is of such great importance.
        The bill you are considering does three very important
    things:
        First, it addresses the green card shortage. It eliminates
    or goes very far to reduce the backlog. It eliminates the per
    country cap. And it creates a new green card category for
    advanced STEM degrees--all things that are needed.
        Second, in the H-1B area, the bill, quite rightly I
    believe, has improvements in the number of H-1Bs that are
    available, but accompanies this with changes to ensure that
    American workers are protected. It raises the wage floor for H-
    1B employees. It improves portability so H-1B employees can
    switch employers. It addresses a number of other issues. And
    even though we have some lingering questions about potential
    language and potential unintended consequences, we recognize
    that compromise is needed all around, and we hope to be able to
    work with this Committee and its staff as you go through the
    details.
        There is a third thing this bill does that is of
    extraordinary importance, and that is this: It creates a
    national STEM education fund. The reason we have such a
    shortage of high-skilled labor is because we have
    systematically underinvested as a country in the education of
    our own children.
        Consider this: There are over 42,000 high schools in
    America, but this year, the number certified to teach the
    advanced placement course in computer science is only 2,250.
        Senator Klobuchar, we are very grateful to the work that
    you and Senator Hatch led to really create the I-squared
    proposal, the I-squared Act. It creates the model for a
    national STEM education fund, and this bill follows much of
    that model. But I hope you might improve it even further. Raise
    the fees on visas. Raise the fees on some green cards and
    invest that money in the American people so we can provide our
    own children with the educational opportunities they will need
    to develop the skills to compete in an increasingly competitive
    world.
        As a company, Microsoft spends more on research and
    development than any other company in the world, $9.8 billion
    this year. And yet we spend 85 percent of that money in one
    country--this country, the United States. Our industry has come
    to Washington because we want to keep jobs in America. We want
    to fill jobs in America, and we want to help create more jobs
    in America.
        We know that in the short run we will need to bring more
    people from other countries to America. And we hope that in the
    long run some of them will follow in the footsteps of the
    Alexander Graham Bells and Albert Einsteins and Andy Groves,
    great technologists and scientists and entrepreneurs.
        But we want to do more than that. We think the country
    should seize the moment to invest in our own children as well.
    And if we are going to do all of that, if we are going to do
    any of that, we need your help.
        Thank you.
        [The prepared statement of Mr. Smith appears as a
    submission for the record.]
        Senator Franken. Thank you, Mr. Smith.
        Ron Hira is an associate producer--professor. Sorry.
    Sometimes that slips out, the old career.
        [Laughter.]
        Senator Franken. Associate professor of public policy--I am
    the Chair now.
        [Laughter.]
        Senator Franken. Ron Hira is an associate professor of
    public policy at the Rochester Institute of Technology in
    Rochester, New York, where he teaches courses on technological
    innovation, communications, and public policy.
        Professor.

            STATEMENT OF RONIL HIRA, PH.D., P.E., ASSOCIATE
            PROFESSOR OF PUBLIC POLICY, ROCHESTER INSTITUTE
                   OF TECHNOLOGY, ROCHESTER, NEW YORK

        Professor Hira. Thank you. I want to thank Chairman Leahy,
    Ranking Member Grassley, and the Members of the Committee for
    inviting me to testify here today. I have been studying high-
    skill immigration policy for more than a decade, so I am
    honored to share what I have learned with you.
        I also want to thank Senator Durbin for his leadership
    within the Gang of Eight to ensure that some reforms of the H-
    1B and L-1 visa programs were included in S. 744.
        I also want to thank Senators Durbin and Grassley for their
    long work in trying to provide clarity on how the H-1B and L-1
    guest worker programs are actually being used in practice.
        Through high-skilled immigration, we have the potential of
    attracting the best and brightest from around the world and,
    more importantly, keeping them here. But much of our policy
    effort is misguided. It has been focused mostly on expanding
    guest worker programs rather than permanent immigration.
        I will focus my remarks today on the deeply flawed H-1B
    program. Right now, the majority of the H-1B program is being
    used to hire cheap indentured workers. The bulk of demand for
    H-1B visas is being driven by the desire for lower-cost
    workers, not a race for specialized talent or a shortage of
    American talent. The results show this.
        All of the top ten H-1B employers last year used the
    program principally to outsource American jobs to overseas
    locations. Outsourcing firms received the majority of H-1B v
    visas issued last year. Globalization and outsourcing will
    happen, but we should not be subsidizing and promoting it
    through flawed guest worker policies.
        Many claim that the H-1B guest worker program is primarily
    used as a bridge to permanent immigration. But the top H-1B
    employers have no intention of ever applying for green cards
    for their workers. Accenture, for example, received a
    remarkable 4,000 H-1Bs last year alone, but it only applied for
    eight green cards. That is 4,000 H-1Bs, eight green cards. That
    means 500 H-1Bs for every green card that they applied for. It
    may be a bridge to immigration, but it is not a very good one.
        Outsourcing is only the most visible and obvious symptom of
    the underlying problems. Program misuse is widespread, even
    beyond the outsourcing firms. This is due to two fundamental
    problems. First, H-1B workers are cheaper than American
    workers; and, second, American workers do not have a first and
    legitimate shot at jobs and, in fact, can even be replaced by
    H-1B workers. Simply put, there is no shortage necessary before
    hiring an H-1B worker.
        So how does this happen? First off, Congress sets the wage
    floor, and it is far too low. H-1B workers can be paid 20 to 25
    percent less than an American worker. And there is no
    requirement for employers to look for American workers before
    hiring an H-1B. Employers can even displace American workers.
    This is, again, in the law itself.
        S. 744, which we are discussing today, includes safeguards
    that move in a positive direction, but the bill falls far
    short. Employers will continue to be able to bring in cheaper
    foreign workers and bypass American workers. Let me illustrate.
        Under the proposed language in the law right now, wages
    will be set a little bit higher than they are currently. Under
    this bill, an employer could hire an electronics engineer in
    College Station, Texas, for as low as $39,000 a year. This is a
    job, an electronics engineer, where the starting salary for an
    entry-level engineer would be $61,000. So an employer would
    save up to $22,000 per year by hiring this H-1B worker. It is
    no surprise why they want to keep these wage floors as low as
    possible.
        S. 744 also requires a national website for posting of jobs
    as well as some language that talks about the fact that
    employers have to hire American workers who are equally
    qualified. We need a little bit more specificity on how that
    would be implemented and how that would work in practice. Will
    American workers be able to ask for--or complain if they are
    not hired? How is that going to be enforced?
        The good news is that some modifications to S. 744 could
    solve these problems. The provisions contained in Senate bill
    600, the H-1B and L-1 Visa Reform Act of 2013, introduced by
    Senators Grassley and Brown, should be included in S. 744. It
    achieves these basic principles: American workers will have a
    first and legitimate shot at these jobs; and, second, it raises
    the wage floor to the average that Americans get.
        Given that the industry claims that they are seeking the
    best and brightest through the H-1B program, should not those
    best and brightest be paid at least the average wage?
        I look forward to your questions.
        [The prepared statement of Professor Hira appears as a
    submission for the record.]
        Senator Franken. Thank you, Professor.
        Neeraj Gupta is the CEO and co-founded of Systems In
    Motion. Previously, Mr. Gupta was a member of the executive
    team at Patni Computer Systems, an IT services company.
        Mr. Gupta.

               STATEMENT OF NEERAJ GUPTA, CHIEF EXECUTIVE
             OFFICER, SYSTEMS IN MOTION, NEWARK, CALIFORNIA

        Mr. Gupta. Thank you. I want to thank Members of the Senate
    Committee for the opportunity to share my perspectives on how
    our immigration policy on H-1B and L-1 visas--on how our policy
    is having significant unintended consequences.
        I came to the United States as a graduate student,
    following which a tech company on the west coast applied for my
    green card. I went on to found an IT services company that was
    later acquired by an Indian offshore company. That company was
    number seven on the offshoring leader board, and I went on to
    lead a $700 million top line for them with 80 percent of our
    revenues coming from the U.S.
        Most recently, I founded a domestic technology services
    company to see if it can replicate the model that offshore
    companies have built with centralized software factors in
    places like Bangalore and Manila in U.S. locations such as Ann
    Arbor, Michigan.
        As a backdrop to my comments, I wish to emphasize that I
    support the proper use of H-1B visas to attract the best
    available global talent to the United States. My comments are
    largely limited to the use of visas by the technology services
    industry.
        In early 2009, in the midst of the Great Recession and
    inspired by the wave of hope and change, a group of us left the
    offshore industry to study and see if we could be a part of a
    solution that would create American jobs. After having
    offshored many jobs, we were looking to see how U.S.
    enterprises could leverage an alternative model here in the
    U.S.
        We knew the key drivers that led to the growth of the
    offshore industry. The industry had been buoyed by the
    availability and lower cost of resources and the easy mobility
    of these resources through the use of the H-1B program. Global
    services companies had built a model of efficiency with
    centralized factories, and we were posing ourselves the
    question: Can we build similar globally competitive technology
    services factories here in the U.S.?
        We looked at the primary drivers for the industry. The
    first one was economics. If you see the number one use of H-1B
    and L-1 visas, as Professor Hira mentioned, a large majority of
    these visas are used by the offshoring industry. Also, the
    number one reason why enterprises use offshoring programs is
    for cost reduction. Is there not a direct correlation? How
    could one miss the linkage that the visas are primarily being
    used for lower costs? It did not matter who the beneficiary of
    these visas is. It could be a large offshore company with
    headquarters in India or the U.S. or a global major like IBM or
    Accenture. Every one of them was using it for one reason alone:
    reducing their costs. Economic rationale was the only reason.
        The U.S. market is the largest revenue source for offshore
    vendors. H-1B visas allowed them to create easy mobility and
    keep utilization rates high. The first question an Indian
    business would asked was: ``Why do we need to hire an American
    worker when we can get a cheaper resource from India, benched
    in India at a lower wage, and mobilized on an as-needed
    basis?''
        The offshore majors mostly hired H-1B employees because the
    current policy provided them a subsidy. It was clear that our
    policies should change, and the question that we ought to be
    asking is: Why do we need to hire an H-1B employee if we can
    train and develop a local worker?
        We also looked at the question of supply of U.S. workers.
    Here is one of the critical findings we found. While the
    finished goods may not be there, there is a lot of raw material
    available. What I mean is there is a lot of resources available
    that we can hire and train here in the U.S. While the
    specialist resources with degrees in computer science may not
    be available in abundance, there are a lot of resources that
    are available with associate degrees and other degrees that we
    can use for IT services work here in the U.S.
        The majority of the work that is done by H-1B employers is
    really not specialist work. Most of them have between 3 to 8
    years of experience, and they go on to do work for large IT
    departments for U.S. banks, insurance companies, and telecom
    operators. This is not the work the kind for which we need more
    H-1B visas such as what Google and Microsoft might need and is
    not traditionally considered specialized work.
        I have a couple of recommendations.
        I would suggest the Committee look at the economic abuse
    and the associated disincentive to hire American workers,
    potentially some sort of a surcharge that would allow us to use
    those monies for hiring and training.
        I would also request the Committee to look at limiting the
    use of the visas for the direct use of an enterprise rather
    than for outsourcing or subcontracting. This would allow us to
    have more visas available for organizations like Google and
    Microsoft, not hit the visa caps where the majority of our
    current visas are being used by the Indian offshore industry,
    allow us to train domestically, and ultimately reduce visa
    abuse.
        If we challenge the industry, if they really need
    specialist resources and challenge them by saying let us
    offer--let us have them offer 125 percent of the top American
    wage to these H-1B employees, you will notice that a lot of the
    visa requests will go down, and it will be truly the
    specialists that will be required for our innovative startups
    and product R&D organizations for which we will use these
    visas.
        I would submit to the Committee that the policies you
    institute should truly focus on addressing the true gap of
    highly specialized skills and put a stop to the use of visas by
    the offshore industry.
        Thank you.
        [The prepared statement of Mr. Gupta appears as a
    submission for the record.]
        Senator Franken. Thank you, Mr. Gupta.
        Fred Benjamin serves as the chief operating officer of
    Medicalodges, Inc., a company that currently operates 30
    nursing homes in Kansas, Missouri, and Oklahoma.
        Mr. Benjamin.

         STATEMENT OF FRED BENJAMIN, CHIEF OPERATING OFFICER,
                MEDICALODGES, INC., COFFEYVILLE, KANSAS

        Mr. Benjamin. Good afternoon, Senator Franken, Ranking
    Member Grassley, and distinguished Members of the Committee. I
    would like to thank you for holding this hearing and for the
    opportunity to appear before you today. My name is Fred
    Benjamin, and I am the chief operating officer of Medicalodges,
    a company that offers a continuum of health care services which
    include skilled nursing home care, rehabilitation, assisted
    living, and services for people with developmental
    disabilities.
        Medicalodges is a member of the American Health Care
    Association, which in turn is a member of the Essential Worker
    Immigration Coalition. I thank you, Senators Leahy and
    Grassley, for bringing the immigration reform debate to the
    forefront. I also greatly appreciate the efforts of the Gang of
    Eight for their bipartisan work culminating in the introduction
    of Senate bill 744.
        Medicalodges is employee owned, operating over 30
    facilities in Kansas, Missouri, and Oklahoma, employing over
    2,300 people. I am honored to have served in the health care
    industry for over 30 years, including roles in skilled care and
    hospitals. I also serve currently as the chairman of the board
    of the Kansas Health Care Association, the leading provider
    advocacy group for seniors in Kansas.
        We have critical staffing needs, and there are chronic
    shortages throughout the nursing home community. It is a daily
    struggle to find enough dedicated caregivers, yet we are
    responsible for the lives of 1.5 million frail and elderly
    citizens nationwide. And this is the fastest growing sector of
    our population.
        The general causes of the shortage have been explored, but
    we are also confronted with chronic underfunding through
    Medicare and Medicaid, which prevents higher wages from being
    paid to our workers; a newly altered regulatory system that
    focuses on fines and penalties; dramatically increased
    competition for caregivers; annualized turnover rates of nearly
    100 percent; and an aging workforce. We are almost completely
    dependent on the Government for payment for our services and,
    therefore, do not have the ability to raise our prices.
        Nearly 80 percent of the residents in our facilities are
    beneficiaries of the Medicaid or Medicare programs, and while
    we do not have the ability to raise our prices, we also have
    little ability to reduce our expenditures.
        The Government inspects every nursing home every year to
    look for errors in compliance with several hundred regulations
    with fines of up to $10,000 per day or closure for
    noncompliance.
        Dedicated caregivers in our facilities are the unsung
    heroes of the American workforce. Because of the difficulty of
    the job and our inability to increase wages or prices, long-
    term care has always been a high-turnover industry. My
    company's turnover rate in lower-skilled categories is
    approximately 60 percent annually, and that is significantly
    lower than most companies in the field. We do focus on
    retention initiatives and employee recognition and involvement,
    but we need certified nurse's aides, licensed practical nurses,
    and registered nurses to provide care around the clock, 24/7/
    365. We provide services in both rural and urban locations.
    Vacancy rates for certified nurse's aides can approach 20
    percent, LPNs 10 percent, and RNs 10 percent.
        So what have we done to address the shortages? Well,
    historically, we have hired extensively from the welfare rolls.
    The nursing home industry in general has hired over 50,000
    welfare recipients in the last 3 years. Most of them are single
    mothers whom we train to become certified nurse's aides and put
    on a career path in health care. And this is the only career
    path that I know of that can take people from economically
    disadvantaged situations to the middle class.
        We have set up tables in grocery stores to recruit new
    employees, sent direct mail, posted job openings in newspapers,
    schools, and even laundromats. We have offered signing bonuses
    and multiple incentives for recruitment. Yet it is still not
    enough.
        Comprehensive immigration reform should be guided by three
    basic principles:
        First, America must always remain in absolute control of
    its borders.
        Second, new immigration laws should serve the needs of the
    American economy. As always, American workers should be given
    the first preference. If an American employer is offering a job
    that American citizens are not willing or available to take, we
    ought to welcome into our country a person who will.
        Third, undocumented workers who pay taxes and contribute to
    our labor needs should be given a vehicle to earn legal status.
        We currently have a broken immigration system, and that is
    why the American Health Care Association and EWIC have helped
    to craft the business community's basic principles of what
    comprehensive immigration reform should include.
        While everyone is still reviewing Senate bill 744, I do
    believe that it captures most of the needs of immigration
    reform.
        In conclusion, the labor shortage is our most pressing
    operating problem. If we are to meet the expectations set for
    us, policymakers must act now to expand access to new pools of
    staff. I urge you to take a broader look at this staffing
    crisis and think about the frail and elderly population we
    serve--our parents, our grandparents, our aunts, our uncles,
    our neighbors, and yours--those special people who have given
    so much to us and our country. We owe it to them to provide the
    best possible care, do we not? I am here to ask you who will
    care for them if this critical situation is not addressed
    immediately.
        Thank you, and I am happy to answer any questions.
        [The prepared statement of Mr. Benjamin appears as a
    submission for the record.]
        Senator Franken. Thank you, Mr. Benjamin. Thank you to all
    the witnesses.
        Mr. Smith, despite the fact that overall undocumented
    immigration has gone down, the number of children arriving
    alone at our borders has doubled in recent years. Last year,
    14,000 children younger than 18 arrived at our borders without
    a parent or guardian. Right now, the Department of Health and
    Human Services is charged with getting attorneys for these
    children, but about half of them do not get counsel. I recently
    heard a story by way of the American Bar Association of an
    immigration judge who told an 8-year-old boy representing
    himself that the child had the right to cross-examine the
    Government's witness. This is an 8-year-old boy, alone in
    court, and presumably he did not speak English.
        For months, I have been calling for changes to our
    immigration laws that will protect these children, several of
    whom are now living with friends or relatives in Minnesota. I
    am absolutely thrilled to see that the bill we are debating
    contains these provisions.
        Mr. Smith, can you tell us a little bit about Microsoft's
    work on this issue and about the need for these protections?
        Mr. Smith. Well, yes, thank you, Senator Franken. At
    Microsoft we have been supportive through a pro bono legal
    effort, and I co-founded and continue to co-chair the Board of
    Directors of Kids in Need of Defense, or KIND.
        The mission of KIND is to provide legal counsel to children
    who are going through an immigration removal process but have
    been separated from their parents, precisely the individuals
    that you referred to. And as you mentioned, there has been an
    increase in this number in recent years.
        We are making heroic efforts across the country through the
    help of over 160 volunteer law firms, companies, and law
    schools. There are over 5,200 lawyers now volunteering their
    time to provide this legal representation.
        But as you point out, we have had clients as young as 2
    years old. A child who is 2 years old who does not have a
    lawyer and who does not have a parent is basically defenseless
    when it comes to an incredibly important legal proceeding. And
    the bill before you does some very important focused things to
    help address this, as you pointed out. It mandates to the
    Attorney General that there be legal counsel appointed to
    represent a child in this situation, and it moves from HHS to
    the Department of Justice the responsibility to work on this,
    which makes perfect sense given the DOJ's responsibility.
        As we look to the future, we are going to need to continue
    to recruit more volunteer lawyers, and we are committed to
    doing that. But I think that passage of this bill will
    definitely help.
        Senator Franken. Thank you.
        Mr. Kolbe, this is not so much a question as a statement
    that you are not alone. I have heard many stories from my LGBT
    constituents about how our immigration system is tearing their
    families apart.
        I recently heard from one of my constituents, who I will
    call ``Mark.'' Mark works for a Fortune 500 company in our
    State. He is a citizen. His partner, Alberto, is Italian and
    planned to move to Minnesota to be with Mark under the Visa
    Waiver Program for Europeans. But when they were identified as
    a same-sex couple by Customs and Border Protection at the
    airport, Alberto was interrogated, forced to surrender his
    personal e-mail password, and eventually told he would not be
    allowed to remain in the country.
        Alberto is now back in the U.S. on a different visa, but it
    is only a temporary solution, and Mark is prohibited from
    sponsoring Alberto for permanent residency. Under current law,
    Mark must choose between his career and the person he loves,
    which is not fair, it is wrong, and I just wanted to tell you
    that I and many other Senators on this panel are going to do
    everything we can to try to see that we amend this bill to
    protect all families, including those of LGBT Americans. And I
    just want to thank you for your work on this issue, Mr. Kolbe.
        Mr. Kolbe. Thank you, Senator Franken, for those comments,
    and I think you have put your finger right on the source of the
    problem, the fact that it is not possible for me to sponsor my
    spouse in the same way that it would be for some man and a
    woman to do for the other there. So it is an unfairness that
    exists, and we hope that it will be corrected.
        Senator Franken. Thank you.
        I only have a very short time, but, Ms. Smith, I think
    Vermont and Minnesota have a lot in common. Tourism contributed
    a lot to our economy, about $12 billion, and I am proud to
    cosponsor the JOLT Act. Senator Schumer's bill will make it
    easier for Canadians and other foreigners to visit Minnesota
    and visit the Mall of America and fish in the boundary waters,
    et cetera. So I just want to say that, and thank you for your
    testimony on that.
        I will turn to the Ranking Member, Senator Grassley.
        Senator Grassley. Thank you, and thanks to all the
    witnesses.
        I support H-1B with some changes, and I want to start with
    Mr. Hira and Mr. Smith with this question. It would be asking
    for some reaction to what used to be the Durbin-Grassley bill
    and now is the Grassley-Brown bill, regarding requirements for
    employers to first attest that they have tried to recruit and
    hire an American worker before applying for a foreign worker.
    It is my understanding that our good faith recruitment
    provision is not in this bill by the Group of Eight.
        Why does the business community oppose this simple and
    straightforward measure that would provide qualified people at
    home with a chance of high-skilled, high-paying jobs? Mr. Hira.
        Professor Hira. I am not sure. I think you would have to
    ask the industry why they oppose it so much. But I think it is
    a very common-sense thing. It certainly goes to the spirit of
    what the program is supposed to do. And the good faith
    recruitment requirement is already in law. It just applies to a
    very narrow set of employers right now, H-1B-dependent firms,
    so-called H-1B-dependent firms. I see no reason why only a
    small number of firms should be doing good faith recruitment.
    All of these firms should be doing good faith recruitment of
    American workers before hiring an H-1B.
        This is an intervention into the labor market, and it seems
    to me that American workers should have that first and
    legitimate shot at those jobs. And S. 744 does not go far
    enough. I think the good faith recruitment that is in S. 600
    would work very well.
        Senator Grassley. Mr. Smith, please.
        Mr. Smith. Well, I actually think most of the companies
    that I know do the kind of recruitment you would hope them to
    do every day. The truth is we have to hire both Americans and
    people from overseas to fill the jobs that we have. The bill
    has, as you know, a new requirement that all jobs get posted on
    a website managed by the Department of Labor. I am not aware of
    people objecting to that. And when I hear people raise
    concerns, it is more about other aspects relating to what the
    Department of Labor might look at years later with respect to
    the review of an individualized specific hiring decision:
    Person A over Person B. And I think that is where you hear more
    people express reservations.
        Senator Grassley. That provision that you said was added
    about the Internet, do you support that provision?
        Mr. Smith. Yes. I think that we have no problem--we post
    things all across the Internet. We are happy to post it on one
    more website.
        Senator Grassley. Okay. Thank you.
        Professor Hira. Could I add, Senator? There is another
    provision in S. 744 that requires American workers who are
    equally qualified to be hired. I think that is an important
    provision to stay in, and I would be curious what industry
    thinks of that.
        Senator Grassley. Mr. Smith, do you support that?
        Mr. Smith. Well, I think the real concern that people have,
    Senator Grassley, is how that determination is made, when, and
    by whom. If the Department of Labor comes 3 or 4 years after an
    individualized hiring decision is made--let us say somebody has
    the opportunity to hire the number one student from the number
    one computer science department in the country, but that person
    was in competition from somebody who might have been at the
    bottom of the class at a less competitive university but has 2
    years of work experience. Do you like an apple or do you like
    an orange? You do not really know until 3 years later when the
    Department of Labor tells you whether you were supposed to
    prefer apples over oranges. It is that kind of uncertainty that
    gives people pause.
        Senator Grassley. Then you would suggest we work on that
    aspect of it.
        Mr. Hira, The Washington Post ran a piece about how the
    bill has a special carveout for Facebook and, quote-unquote, H-
    1B-dependent employers? Could you explain what provision the
    article references and your opinion on the carveout?
        Professor Hira. Sure. The carveout is if a firm sponsors H-
    1B workers for green cards, they just put in the paperwork
    basically. That will reduce their H-1B-dependent numbers, and
    they will be less than H-1B dependent. So they will not have to
    do good faith recruiting, and they will not have to pay the
    higher wage levels. I think this is a mistake, and it will
    affect not just Facebook, and we should not be making policy
    around one firm. It is also going to affect a number of other
    firms that exploit the program.
        Senator Grassley. Mr. Gupta, since you have been on an H-1B
    visa in the past, your experience with the program is
    particularly relevant. Why do you say that H-1B visa holders at
    tech service companies are not really specialized?
        Mr. Gupta. Well, Senator Grassley, the majority of the work
    that the Indian offshore industry does is back-office IT work
    for large enterprises here in the U.S. And it does not require
    the necessary skill to do the traditional product development
    work that Microsoft might require their engineers to do. So the
    nature of the work is really less of research and development
    but mostly applying IT concepts in the context of a large
    enterprise, and this work traditionally tends to be easier than
    what may require a bachelor's in computer science or a master's
    in computer science.
        One interesting point to note is that the Indian industry,
    if you look at the numbers of people they hire and the number
    of visas they apply for, has the majority of the visas. Now, in
    that, they do not have very many Americans, so you have to sort
    of look at this industry and say this is the industry that is
    hiring most of the
    H-1B visas, they are not hiring American workers, why is that?
    And I think the categorization of the H-1B program for the
    likes of Microsoft and Google is very different than how it is
    being utilized by the Indian offshore industry. And that
    segmentation is very important. My fear is that we look at sort
    of the larger issue that is raised by Microsoft and in the
    process we think about the supply issues and pin that as a
    standard thing across the industry. And in the process, we end
    up seeing that a majority of the visas end up being used for
    the wrong purpose. And even if we were to raise this limit from
    65,000 to 110,000, what is not to say that 100,000 of those
    visas will be used by the Indian offshore industry?
        Senator Grassley. Thank you.
        Thank you, Mr. Chairman.
        Senator Franken. According to the early-bird rule, Senator
    Klobuchar is next?
        Senator Klobuchar. Thank you very much. Thank you to all
    the witnesses, and I appreciate your focus, many of you on the
    economic advantages of this bill.
        Mr. Smith, I wondered if you would take an opportunity to
    respond to some of the issues raised by Professor Hira and Mr.
    Gupta.
        Mr. Smith. Well, thank you, Senator Klobuchar. Let me offer
    a couple thoughts.
        First, while the so-called Facebook rule is not going to
    benefit Microsoft, I actually think it is an important rule for
    the industry because it encourages companies to do what I think
    Professor Hira, in fact, has said is a good thing: apply so
    people can get green cards, and do not count that against the
    H-1B numbers.
        I can tell you at Microsoft we apply for a green card for
    every single person who comes to us on an H-1B visa, and we
    initiate that process in the first 30 days of employment. And I
    do not know what Facebook does, but I bet it is about the same
    because that is how competitive the industry is.
        I do think it is appropriate to recognize that not every
    company is in the same state. But I think, by and large, it is
    important to find rules that work well across the board.
        That is why, for example, I advocate that we should raise
    the fees paid by employers. They are paid by companies. They
    are not paid by individuals.
        Senator Klobuchar. Mr. Smith, if we could just follow up on
    that----
        Mr. Smith. Okay. Sorry.
        Senator Klobuchar [continuing]. Because I also want to get
    to some other issues. I will get to your second point. But on
    the fees, in the original proposal that Senator Hatch and I
    had, we increased the fees on H-1Bs by $1,000. That generated,
    I think, $3 to $5 billion over 10 years for STEM education in
    the country. It was very important.
        I think the current Gang of Eight increases the amount of
    green cards but not H-1B. Is that right?
        Mr. Smith. Yes, that is right, and I personally would
    prefer what was in the I-Squared Act. Look, I think you could
    double the fee on an H-1B. That would raise it from $2,350 to
    $4,700. The visa lasts for 3 years. That would represent
    between half a percent and 2 percent of what it costs to employ
    one of these individuals. And it would bring $517 million in
    per year, and if it is invested in a STEM fund, you could
    really help improve education across the country.
        Senator Klobuchar. All right. Very good. Thank you. I
    appreciate it.
        And then, Mr. Kolbe as you know, I am a cosponsor of the
    Uniting American Families Act. What would be the effect if the
    Supreme Court did overturn DOMA in terms of the need for it? I
    do not know that answer. That is why I am asking.
        Mr. Kolbe. I am not sure that we know exactly, but this, of
    course, does not deal with the issue of marriage at all. This
    has to do with the employment provisions. And what this would
    simply say is while DOMA defines marriage as between a man and
    a woman for Federal purposes, this legislation simply says for
    immigration purposes that an individual can be immigrated into
    the United States. Once you go through the very lengthy process
    of proving that you are in that relationship and the
    evidentiary requirements are actually stricter than they are
    today for spouses coming in with an H-1B permittee. So it
    really applies only to the immigration side of it, not to the
    other parts.
        Senator Klobuchar. Okay. I just think it is something worth
    looking at, the interrelationship, if that happens while we are
    debating this bill and figure out what to do. Thank you.
        Ms. Smith, the tourism issue, as you know, that has been
    near and dear to my heart. I head up the Travel Caucus, and we
    have done some great things with speeding up visa times as well
    as getting the Travel promotion Act implemented to advertise
    our country. I just got from our staff the newest numbers that
    have come out, and we have actually seen with these efforts an
    increase in 6 percent of foreign tourism from 2011 to 2012,
    which, as you know, means many, many hundreds of thousands of
    jobs. So we are very excited about this since all tourism jobs
    are in America if people come to see the Mall of America or the
    beautiful State of Vermont.
        Could you talk about the JOLT Act and how this could be
    helpful in terms of the actual goals? One of them is
    interviewing 80 percent of all nonimmigrant visa applicants
    within 3 weeks of receipt of an application, exploring
    expansion of visa processing in China and Brazil. Could you
    talk about how this could actually work in reality?
        Ms. Smith. Well, I think that the main point of this is the
    markets we are looking at right now, China and Brazil, we
    have--there is huge interest for them to come to our country.
    We know that. We go to trade shows. We have learned that. So
    anything we can do to expedite their ability to get these visas
    is going to help our country greatly.
        Senator Klobuchar. Okay. Very good. And, also, you raised
    quickly at the end this idea that some of the travel promotion
    money was being siphoned off basically. What would be the
    effect of that given these numbers that we are seeing since we
    started implementing the Travel Promotion Act?
        Ms. Smith. I have been so impressed with Brand USA and what
    they have been able to do since they got going. It was kind of
    a startup, and now it is going full speed ahead, and that
    money, we are just entering markets that I never dreamed, we
    never dreamed that we would have the support to go into and
    recruit visitors. So I just think the Travel Promotion Act is a
    wonderful thing, Brand USA, and keeping that funding is hugely
    important to our industry.
        Senator Klobuchar. Okay. Very good. Thank you.
        And, Mr. Smith, I am out of time. I was going to go back to
    you and have you finish your points, but if you could put them
    in writing, or maybe someone else will ask you. Thank you very
    much.
        Senator Franken. Thank you, Senator Klobuchar.
        I have Senator Sessions next, then in this order: Senators
    Durbin, Cornyn, and Whitehouse. Senator Sessions.
        Senator Sessions. Thank you.
        Well, these are very complex issues. Each one that we have
    discussed requires a lot of thought. I would just sum up on our
    previous agriculture panel that I think a tight, well-managed
    temporary seasonal worker program can be beneficial to America
    and should be considered, and we can achieve that.
        But I asked the question, what do you do in the off-season?
    Will people be able to bring their families? And then what will
    happen if people come for 3 years and they re-up for another 3
    years? They have been here 6 years. They are married, they have
    a child, and then we are asking them to leave? Or maybe they do
    not have a child but have been here 6 years, are embedded here.
    So to me it is an unworkable system. We are not going to hunt
    those people down and try to deport them.
        The bill assumes also that and provides for--Mr. Judson,
    with regard to your workers, people that are here illegally
    today working would be legalized. They would be able to stay.
    And then in addition to that, throughout this whole area,
    people except, I believe, ag workers would be able to
    transition to any other job--truck drivers, heavy equipment
    operators, county employees, and that sort of thing. So it will
    have a ripple effect in competing against American workers for
    even the high-wage jobs. It just will.
        And we know, unless you business people believe the law of
    supply and demand has been repealed, it will pull down those
    wages. That is what experts tell us, and I think that is
    absolutely true.
        And then for people that are working at the lower-wage jobs
    that you are talking about, they will begin over time, when
    they become a legal permanent resident or a citizen in 10, 15
    years, would be at a level where they draw earned income tax
    credit, all the means-tested social programs. So people would
    be brought in, businesses would pay them at this level, and the
    taxpayers would subsidize additionally. And I am not sure that
    is a bargain for the American worker. We need to think that
    through.
        So those are some of the matters that I am concerned about
    and we are going to get to the bottom of. We are going to find
    the numbers. And I got to tell you, it will not strengthen
    Social Security and Medicare. The numbers are clear. Those
    reports are in, and they will be confirmed. It will weaken
    Social Security and Medicare perhaps by trillions of dollars.
    That is just what is going to happen.
        Mr. Gupta, I appreciate your insight into how the practical
    program is working for high-skilled workers. I totally believe
    and statistics and data shows that persons who come to America
    with 2 years of college almost all do very well. They almost
    all pay in more taxes than they will take out over a lifetime.
    And that seems like a pretty--you know, I think that is a
    matter we ought to consider as we think about the total flow
    and who is admitted to America.
        Professor Hira, the bill would increase the amount of H-1B
    visas up to 180,000, 3 times the current cap. Some say that
    there is a dire need for these workers, especially in the STEM
    fields. You testified that unemployment data does not support
    that assertion and that raising the cap would significantly
    harm American workers.
        I hear college graduates are having a hard time, even
    engineering students are not able to be employed frequently in
    America. What is the status there? And how would you explain
    your testimony?
        Professor Hira. Sure, I am happy to. Mr. Smith gave some
    data. He said a 3.2-percent unemployment rate. His data is
    right. The problem is his interpretation is wrong. What we
    would expect when we are at full employment in these
    occupations would be about a 1.5-percent unemployment rate. So
    we are about twice where we should be at full employment. So he
    is misinterpreting the data.
        I do not think that raising the cap to 180,000 is warranted
    in any way, shape, or form because businesses do not have to
    show any kind of need for these workers. And the wage floors
    are still too low in the current bill, and so what you will see
    is just an expansion of cheaper labor.
        I would also note that the bill expands the base cap, so
    all you need is a bachelor's degree. It does not really expand
    the advanced degree cap, the 20,000. It only expands it to
    25,000. So it is kind of baffling to me that the high-tech
    industry, which usually puts up the poster child of someone who
    graduates from MIT and cannot stay in the U.S., in reality what
    they fought for was the base cap, which was importing the
    cheaper workers at the lower levels, not at the U.S. advanced
    degree graduates floor.
        Mr. Smith. Could I just respond briefly? Just to note that
    while I said that the unemployment rate for the entire computer
    and mathematical occupation was 3.2 percent, I said that in
    many States and sub-categories it is below 2. In Washington
    State, for example, the last half of last year, it was 1.0
    percent.
        Senator Sessions. I would just say to everyone that is
    listening, wages have not gone up for the working American over
    the last 15 or 20 years. My Democrat colleagues have hammered
    that for a long time, not so much lately, and I think it is a
    reality.
        So we have high unemployment, particularly among low-
    skilled workers, and we have these highly capable people,
    particularly on the previous panel, arguing for more low-
    skilled workers, and I do not see how that can be justified at
    a time we have high unemployment. And we have got to move
    people from dependency on the Government into the workforce,
    and we are going to have to be more aggressive about that.
        Welfare offices, unemployment offices, have to be job-
    creating offices. Americans cannot continue to bring in labor
    to do work and subsidize people who are not working by the
    millions.
        So, hopefully, we can work through this. I know a lot of
    the suggestions are good in these areas, and I am willing to
    work with them. But the reality is that there are some
    difficult challenges out there.
        Senator Franken. Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman. Let me welcome all
    the panel, especially my former colleague, Congressman Kolbe.
    Thank you for being here. I am a cosponsor of UAFA as well, and
    I hope that we can include it in this bill. I think it should
    be part of it.
        I sat on this Gang of Eight. I kind of hate this ``gang''
    thing. I am sure Senator Flake does, too. But I have been
    involved in so many gangs, you would think I would have a few
    tattoos by now.
        [Laughter.]
        Senator Durbin. But I would tell you that we spent a lot of
    time on a lot of subjects. We probably spent as much if not
    more on
    H-1Bs than anything else. And I would have been surprised if
    somebody would have told me that in advance.
        And we came to it basically--and I listened to Mr. Smith
    and Professor Hira, who has been a consultant--thank you for
    your kind words--on this whole subject. And we came to it with
    the premise that if we could bring in the talent, even the
    talent we are educating in America, and keep them here to grow
    our businesses and grow our jobs, it is in the best interests
    of the country.
        And I would say to my friend and colleague Senator
    Grassley, yes, it was Grassley-Durbin, Durbin-Grassley for a
    long time. I did not add my name as cosponsor this time because
    I was sitting in this group, and I felt that I really had to be
    open-minded to work toward a compromise. But please do not sue
    me for any alienation of affection. I agree with you on the
    principles that you have espoused.
        Here is what it gets down to, Mr. Smith. When Microsoft and
    other companies come and tell me, ``We are going to put our
    research facility in British Columbia if you do not give us
    some opportunity in the United States of America to bring in
    the talent we need to build the products we need to prosper,''
    I get it.
        I have also been a commencement speaker at the Illinois
    Institute of Technology and watched the graduates from South
    Asia and China coming across the stage for multiple advanced
    degrees, thinking we are handing them a diploma and a map on
    how to get on the Kennedy Expressway out to O'Hare at the same
    time, which I think is a mistake.
        But here is what it gets down to, Mr. Smith. There are some
    specific abuses of H-1B. Professor Hira and Mr. Gupta have
    pointed them out. These outsourcing firms, like Emphasis,
    Wipro, Tata, and others, Americans will be shocked to know that
    the H-1B visas are not going to Microsoft. They are going to
    these firms, largely in India, who are finding workers,
    engineers, who will work at low wages in the United States for
    3 years and pay a fee to Emphasis or these companies. I think
    that is an abuse of what we are trying to achieve here.
        Most people would think, well, Microsoft needs these folks,
    and they would be shocked to know that most of the H-1B visas
    are not going to companies like yours. They are going to these
    outsourcing companies.
        I sat at the table and I said, ``I am for increasing H-1Bs
    only if we offer the job to an American first at a reasonable
    wage so that they have a chance to fill that position, and if
    they cannot, then we bring in the talent.''
        Mr. Smith, what is wrong with that? And what is wrong with
    having a provision in here that says I do not want you to fire
    an American worker so you can hire an H-1B worker?
        Mr. Smith. Well, first of all, Senator Durbin, I want to
    thank you for all the consideration you have given, frankly, to
    our industry's point of view over the last few months, because
    I appreciate that an enormous amount of work has been done to
    strike a compromise.
        I personally think it is important that we both recognize
    the need for these firms to evolve their business model. I have
    had these conversations myself with them in India that
    encourages them to focus on hiring more people in the United
    States----
        Senator Durbin. If 50 percent of their employees are H-1B
    visa holders, if they have more than 50 employees and more than
    50 percent are H-1B visa holders, it suggests to you they know
    their economic model and how they can make money.
        Mr. Smith. Well, look, as you know, the bill will put an
    end to that.
        Senator Durbin. Thank goodness.
        Mr. Smith. It will say that if they do not change that
    within 3 years, they will not be eligible for any H-1Bs at all.
    And I frankly----
        Senator Durbin. Do you support that?
        Mr. Smith. I told them that 3 years ago, they better
    recognize that. There is no large country in the world that
    allows companies to employ over half of their people from
    outside the local population. So I do support that.
        I do think it is important that one not eliminate their
    ability to do good work, because they also do good work. And I
    do not want to lose sight of that.
        Senator Durbin. But would you buy my premise that if there
    is a job opening at Microsoft, the first responsibility of
    Microsoft is to hire an American?
        Mr. Smith. I will buy that premise, but I will qualify it
    in this one respect: If the number one student in the Ph.D.
    class at the University of Illinois happens to come from China
    and that person as a Ph.D. student filed six patent
    applications and is clearly the pioneer in her field, I want us
    to hire her.
        Senator Durbin. But--and I know this is subjective.
    Employers are subjective.
        Mr. Smith. Right.
        Senator Durbin. All things being equal?
        Mr. Smith. If you can equalize everything else in life,
    then the job should go to an American.
        Senator Durbin. An American first.
        Mr. Smith. Absolutely.
        Senator Durbin. So offering this on a website----
        Mr. Smith. Absolutely.
        Senator Durbin [continuing]. Attesting to the fact that you
    have done this?
        Mr. Smith. I think as long as we do not get lost in the
    details that may have unintended consequences, yes, these kinds
    of things absolutely can work.
        Senator Durbin. I see I am out of time here. I certainly
    wanted to ask Professor Hira and Mr. Gupta a question or two.
    But I do want to commend Senator Klobuchar and also you, Mr.
    Smith, because I think this notion of more homegrown American
    talent is something we all should applaud, and if it means
    charging a higher fee to bring in a foreign H-1B worker so that
    we can create scholarship opportunities for American students
    to become tomorrow's engineers, I think that is what America
    wants us to do. And I am glad that Senator Klobuchar led in
    that effort, and I am glad you have endorsed it.
        Mr. Smith. Thank you.
        Senator Durbin. Thank you.
        Senator Franken. We will go to Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Ms. Smith, you and I both come from border States, and I
    want to ask you a little bit about the importance of security,
    but also maintaining trade, tourism, and commerce between our
    trading partners, in your case primarily Canada, in my State's
    case primarily Mexico.
        Do you find anything mutually exclusive between our desire
    to have a secure border and our desire to make sure that
    legitimate trade, commerce, and tourism flows across those
    borders smoothly?
        Ms. Smith. No, I do not.
        Senator Cornyn. And I believe the figure that I have read
    is about 6 million American jobs depend on cross-border trade
    and commerce with Mexico. Do you happen to know what the
    economic impact of cross-border trade at Canada is?
        Ms. Smith. I am sorry. I do not.
        Senator Cornyn. Well, I am sorry. I did not mean to pop
    that on you, but----
        Ms. Smith. That is all right. I know it is very, very
    relevant, especially to the border States, but, you know,
    really all the way down. I understand the importance.
        Senator Cornyn. And have you found that the staffing at the
    borders and the infrastructure both need to be improved?
        Ms. Smith. Very much so.
        Senator Cornyn. And that will not only provide a more
    secure border, but it will also enhance that cross-border
    commerce and trade in a way that helps grow jobs and grow the
    economy here in the United States. Would you agree with that?
        Ms. Smith. I agree, and we have a situation right now where
    we have airlines in Toronto that cannot--we do not have the
    Border Patrol agents to have them come year-round. They can
    only come in the winter because in the summer those agents are
    put onto Lake Champlain. So we have to stop the service, and it
    is four flights a week bringing 60 people, 70 people per flight
    from Toronto to our State.
        Senator Cornyn. Mr. Judson, we heard the first panel--and I
    know you were in the audience--talk a lot about agriculture and
    its important to our economy and what percentage of the
    workforce in agriculture is undocumented, and you alluded to
    the dependency of the construction industry in the United
    States on this workforce as well, and I know you want it to be
    a legal workforce.
        But you also described the cap on construction jobs as
    ``arbitrary and meager.'' Can you explain to me why Congress
    would want to discriminate against the construction industry
    and treat them any differently than the agriculture industry?
        Mr. Judson. I cannot answer the rationalizations why that
    would be the case, but I can give you statistical support data.
    We are in the worst economic recession/depression our industry
    has ever experienced. So just to hypothetically say we are at
    50 percent of where we were construction-wise, that is 50
    percent of where the demographic demand for housing would be.
        There are three jobs created for every house that is built,
    so if we are half a million houses short of production today
    and we go back over the next 12 or 18 or 24 months to economic
    demographic demand, 500,000 houses at three jobs per house,
    that is a million and a half jobs.
        Our 30,000 jobs are not going to quite get that done, and
    we are going to be right back in that situation of having a
    labor shortage and not having a way to solve it.
        Senator Cornyn. And you alluded to the provision of the
    bill that dealt with prevailing wages. I am just guessing that
    you believe the market ought to set the wages in the
    construction industry, like it does in most of our economy. Did
    I understand that correctly?
        Mr. Judson. As Senator Sessions alluded, the supply-demand
    scenario in law still applies in construction very vehemently.
    Our houses are clearly a product of supply-demand. We are not
    necessarily interested in a lower price as much as we are in
    meeting the demand of the public. Components of a home are
    generally done on a square foot basis, $3 for painting or $4
    for brick or whatever it might be, and that is within general
    parameters. It will vary by locale and certainly by quality.
    But we are saying that that local market would drive the
    product price and the labor that you pay more so than with an
    arbitrary this is the prevailing wage and consequently you are
    generating greater productivity because you are paying a higher
    wage.
        Senator Cornyn. And if I could just conclude, would you be
    satisfied with being treated like any other sector of the
    economy in this bill?
        Mr. Judson. Very simply, yes.
        Senator Cornyn. Rather than being targeted for special
    treatment, as you have been?
        Mr. Judson. Yes, sir.
        Senator Cornyn. Thank you.
        Senator Whitehouse [presiding]. In the order, I am up next,
    and then Senator Flake follows, and that concludes the panel.
        My first question is for Ms. Jacoby. Ms. Jacoby, a lot of
    this comes to us by what we have seen. I give pretty regular
    community dinners in Rhode Island. I listen to folks, and on a
    couple of occasions, people have come up afterwards to talk to
    me, and they have described--these are mid-level professional
    people, and they have described working for large, well-known
    companies that have an office in Rhode Island and being laid
    off and having people brought in from out of the country in
    order to do their jobs, people who live in hotels, get brought
    in from the hotel in a bus in the morning, do the work, go
    back, live in the hotel. And, obviously, the calculation for
    the company is that it is cheaper to lay off the American
    worker, avoid whatever benefits and costs there might be
    associated with them, and bring in people from out of the
    country to do the same work. Obviously, very distressing and
    very discouraging for the American mid-level professional who
    got laid off and in some cases had to help train the people who
    are here from out of the country.
        Are you satisfied that this sort of activity, there is
    enough teeth in the bill to prevent that from continuing?
    Because I think we can all agree that that is a very
    unfortunate choice, and if we do not take away the incentives
    for corporations to behave that way, it seems to me they will
    continue.
        Ms. Jacoby. The situation you described is deplorable. The
    W-visa would not apply to the people in the circumstance you
    are describing. The W-visa is only for people with less than a
    bachelor's degree. So the W-visa is for a much less skilled
    pool of workers.
        The requirements that you are talking about, the concerns
    you are expressing, of course, apply in that less-skilled tier
    of the labor force as well. No one wants a situation where
    there are Americans available for the job to be turned away and
    immigrants to be hired instead.
        The W-visa does have, I believe, adequate protections
    against that. Employers do have to try to find Americans. They
    have to pay the immigrants at least as much as they are paying
    comparable Americans or more. There will be robust back-end
    audits to make sure that they do the kind of recruitment they
    are supposed to do.
        Senator Whitehouse. And you are satisfied with the strength
    of those audits?
        Ms. Jacoby. We have not seen them yet, but the point is
    that we are replacing--in the less-skilled category, we are
    replacing what is now a completely unregulated Wild West
    unauthorized market with a legal market, and that should
    prevent and remedy, to the degree it goes on, the kinds of
    things you are talking about rather than invite it. That is the
    beauty of this, is it would replace that Wild West environment
    with a legal situation.
        Senator Whitehouse. Let me ask another question. This is at
    the highest tech end. I guess Mr. Smith and Professor Hira, let
    me ask you. I am thinking of a Rhode Island small business that
    has a very high technical level of accomplishment. They do not
    have a colossal HR department. They work in a very particular
    niche. When they can identify the person whom they need as the
    person whom they need, there may be no person with that skill
    set quite like them anywhere to be found. If you need a
    specific, so to speak, pro from Dover, does this bill give you
    the capability to reach out and recruit that person? And the
    concern that I have heard from these businesses is that even if
    you have identified that person and start recruiting them
    through the existing H-1B process, it creates so much
    uncertainty and so much delay and so much havoc that, if they
    have an international capability, they will go wherever. They
    will go to Germany, they will go to India, they will go to
    China. Why go through that here?
        Are you comfortable that we can compete for those kind of
    people where there is a very specific person that you are
    looking for?
        Mr. Smith. Well, I think the bill takes a number of
    important steps to help precisely that type of employer. I
    think one of the points you hit on which is really important, a
    Rhode Island employer may find a foreign candidate just by
    going to Brown or a local university; 54 percent of all the
    Ph.D.s in computer science are going to foreign individuals.
        I think that the new STEM green card helps. I think that
    the H-1B numbers help. As long as we avoid unintended
    consequences in some of the language, I think it is a system
    that will work, and all of this will benefit from continued
    discussion----
        Senator Whitehouse. Microsoft is enormous and has a huge HR
    department that can plow its way through a fair amount of
    complexity. Professor Hira, what do you think for a small
    business?
        Professor Hira. Well, I think the numbers just show that
    37,000 different employers got H-1Bs last year, and the H-1B
    program was oversubscribed again. There are lots of very small
    businesses that have easy access to the H-1B program. There is
    no indication that there is any real difficulty, and I do not
    think what has been proposed in S. 744 would make it any more
    complicated or more difficult to get access to those workers.
    And, in fact, I think the good faith recruitment should be
    included in there.
        You have to strike a balance. You want employers to be able
    to get those specialized skills. And there is no one that I
    know of who is arguing against that. The question is you have
    got to have the right balance, have access to the program, but
    have the right kinds of safeguards in place.
        Senator Whitehouse. Thank you.
        Senator Flake.
        Senator Flake. Thank you.
        Mr. Smith, you mentioned in your testimony the 25,000
    figure in Washington State, the gap between jobs available and
    the workforce. Can you touch on the multiplier effect? You did
    not touch on that in your testimony. I would just be interested
    in your assessment of the multiplier effect.
        Mr. Smith. Yes. In our industry, study after study has
    pretty much shown that each job that we add has a multiplier
    effect of 4.3, meaning that it leads to the creation of 4.3
    additional jobs in the economy.
        So, for example, this recent study that was done in
    Washington State showed that over the next 4 years, unless
    something is done, there will be 50,000 open high-tech jobs,
    and when you add it all up, it adds up to 160,000 jobs that the
    economy loses the opportunity to create.
        Senator Flake. Well, thank you. That is significant.
        Mr. Judson, you talked about the E-Verify program. That was
    something that we wanted to make sure in drafting this
    legislation that it worked for employers and it worked for
    employees as well and for our system here. Do you think that we
    have struck the right balance there, or what, with regard to E-
    Verify?
        Mr. Judson. We are cautiously optimistic with that program.
    We support the concept. It is moving in the right direction. We
    think it does a couple of things very constructively, which is
    to solidify this separation between legal and illegal, which
    ultimately leads to an improvement of the social and economic
    fabric for that worker. So we are supportive in the direction,
    yes.
        Senator Flake. Okay. Thank you.
        Ms. Jacoby, I know that you noted in your testimony you
    feel the W-visa program needs to be a lot bigger. I think a lot
    of us would prefer it that way. But you mentioned at the end,
    though, that, ``Most of the ImmigrationWorks members I have
    consulted agree: the W-visa program is significantly better
    than the status quo [which is] no program.'' Do you want to
    elaborate on that at all?
        Ms. Jacoby. Well, I believe that creating a program for
    less-skilled immigrant workers is the most important--is the
    heart of immigration reform. The reason we have 11 million
    unauthorized immigrants in the country is because there is no
    way for an unskilled work who does not have family here who
    wants to work year-round to come to the country. So the way to
    prevent illegal immigration in the future is to create a usable
    legal program for less-skilled immigrant workers. The W-visa is
    such a usable program. I believe it is the heart of the fix
    that we need. We talk about fixing the broken system. It is
    creating a program for less-skilled workers. And I believe the
    W-visa program is, as I said, a very thoughtful and ingenious
    and creative, break-the-mold program. I do wish it was bigger,
    but it is certainly better than nothing.
        Senator Flake. Right. And there is nothing to suggest that
    5 years from now, if we just realize that it is completely out
    of whack with labor needs, that we cannot revisit it and up the
    numbers. Is that right?
        Ms. Jacoby. Well, one thing, one of the suggestions I make
    in my written statement is that we might put something in--one
    might put something in the bill that suggests that Congress
    come back and revisit it, at least look at the workings of the
    entire bill, in fact, in a few years. This is a vast new change
    in the system. Congress does not want to start over again in 5
    years, but at least some sort of reconsideration of some of the
    things, including if these low quotas go through, whether they
    have proved adequate.
        Senator Flake. All right. Thank you.
        Congressman Kolbe, we have been through this before years
    and years ago.
        Mr. Kolbe. We certainly have.
        Senator Flake. The Kolbe-Flake-Gutierrez bill, if I recall
    it right. Do you want to make any comments about where you
    think this particular legislation is--I know you came to
    testify on something specific, but more broadly, do you see
    this as a workable program overall in terms of matching labor
    needs and the border security needs, which you are all too
    familiar with, as well as respect for the rule of law?
        Mr. Kolbe. Senator Flake, yes, we certainly have worked on
    this for a number of years, and I have not had a chance to
    study this in detail as, of course, the bill that you and I and
    Congressman Gutierrez drafted years ago, which I might say many
    of the pieces of that find their way into this bill. It is very
    clear that the core of it, I think, is still there, and so in
    that regard, I think it is a good and a workable piece of
    legislation.
        Several suggestions along here today by the other panels I
    think are things that need to be looked at, including the level
    of the H-1B visas, how you define when the border is actually
    secure, which really puzzles me as to how you are going to
    really define that in a meaningful way. I think all of these
    things really have to be addressed, but that is what the
    purpose of these hearings and the work that is being done now
    is, and I commend you and the others and all the Members of the
    Senate for taking this matter up.
        I can say quite safely that a year ago I would have said
    there was no chance this was going to happen, and here we are
    today. So I think it is progress, and I think it is moving
    definitely in the right direction.
        Senator Flake. All right. Thank you.
        Thank you, Mr. Chairman.
        Senator Whitehouse. Senator Graham is recognized.
        Senator Graham. Thank you, Mr. Chairman.
        Congressman Kolbe, if we fail this time around, what do you
    think the consequences for immigration reform would be?
        Mr. Kolbe. If we fail this time around, if we take it up
    and we fail this time around, it is going to be a lot tougher.
    It only gets more difficult with the passage of time.
        Senator Graham. Okay. You have got a high-skill workforce
    problem, you have a low-skill workforce problem. Here is one
    common denominator, from my point of view. I want American
    businesses to have access to labor that we cannot find here at
    home only after you have tried to find an American worker at a
    reasonable price, competitive wage, and that endeavor does not
    result in finding the worker.
        Mr. Smith, from the Microsoft perspective, do you prefer to
    hire American workers?
        Mr. Smith. Well, Senator Graham, as I was saying earlier,
    we do 85 percent of our worldwide research here in the United
    States. I think that tells you how enthusiastic we are about
    hiring American workers.
        Senator Graham. So the answer would be yes.
        Mr. Smith. Yes. But I will also add that the key to having
    a globally world-class research and development center in the
    United States is to be able to combine world-class American
    talent with some world-class talent from other countries as
    well.
        Senator Graham. As I understand the H-1B program, there is
    a requirement that you try to find an American worker first. Is
    that correct?
        Mr. Smith. There are some requirements, and, look, we will
    go and we recruit every day on over 100 college campuses, among
    other places, for American candidates.
        Senator Graham. Ms. Jacoby, is there a desire in your part
    of the economy to hire American workers if you can?
        Ms. Jacoby. Absolutely, and the overwhelming majority of
    employers would rather hire an American. You do not have
    cultural issues----
        Senator Graham. And under our legislation, you are required
    to go out and seek that American worker. Is that correct?
        Ms. Jacoby. Yes, you are. But in a situation where you have
    tried to hire an American worker and you cannot find them,
    employers need a fast, legal, orderly way of----
        Senator Graham. Well, there you go. That is the goal of
    this bill. If an American company is trying to find labor to
    stay in America, not leave the country, we want to make sure
    that they can do business in America.
        Do we have graduates at our major universities in the
    advanced science fields from overseas?
        Mr. Smith. Well, Senator Graham, just to give you an
    example, 54 percent of all the Ph.D.s issued this year in
    computer science went to foreign students; 46 percent of all
    the master's degrees in computer science went to foreign
    students. So the answer is yes.
        Senator Graham. And so here is the goal of the legislation:
    to incorporate those talented people into the American business
    economy. Is that correct?
        Mr. Smith. Yes.
        Senator Graham. We do not want to educate them in our
    finest universities and they go back to the country of origin
    and open up businesses against us. We would like for them to be
    part--use their talents as part of the American enterprise
    system. Is that correct?
        Mr. Smith. I wholeheartedly agree.
        Senator Graham. Okay. Well, that is what we are trying to
    do. And do you believe this bill accomplishes that?
        Mr. Smith. I am a strong supporter, we are a strong
    supporter of this piece of legislation.
        Senator Graham. Okay. Mr. Judson, from the home builders'
    point of view, I know we do not have as many visas as you would
    like, but do you prefer to hire an American worker if possible?
        Mr. Judson. To overuse the phrase that has been used
    already today, all things being equal, the answer is yes. Our
    industry has been deglamorized over the past few years, as Ms.
    Jacoby pointed out. Educationally, the construction industry is
    not viewed as being the most glamorous of careers. So,
    consequently, people have moved away. That has been our
    difficulty in filling some of our entry-level positions.
        Senator Graham. Under this bill you have to advertise and
    you have to seek out an American worker before you can get a
    foreign worker. Do you understand that?
        Mr. Judson. I do.
        Senator Graham. Okay. Do you agree that that is a fair
    concept?
        Mr. Judson. That is reasonable, yes.
        Senator Graham. Okay. To my colleagues, what we are trying
    to do is make sure that the best and the brightest throughout
    the world who come to America to receive an education can stay
    here because it is to our benefit that they stay. When it comes
    to building homes and running the economy in the low-skill
    area, we are trying to make sure that American businesses can
    access labor only after an American worker is not found at a
    competitive wage.
        So if we do not get this part of it right, do you agree
    with me that our economy is going to be in trouble because we
    are not growing the workforce in America fast enough to meet
    our needs? Does anybody disagree with that concept? If you
    disagree, say so.
        Okay. Well, nobody said so, so you must all agree. Thanks.
        Senator Whitehouse. I am told that Senator Lee is seconds
    away and wishes to ask some questions, so we will give him a
    few minutes, and if----
        Senator Grassley. I have a question for----
        Senator Whitehouse. There we go. The Ranking Member is
    recognized until Senator Lee arrives.
        Senator Grassley. Okay. You can finish your answer, I am
    sure.
        In addition to creating a new temporary working program,
    the bill sets up an electronic monitoring system that will
    require employers to keep track of visa holders whom they
    employ. Presumably this would mean that employers must report
    to the Department of Homeland Security when a visa holder shows
    up on the job or when he fails to report. The language in the
    bill lacks clarity and detail in this matter. While E-Verify is
    an established tool, this monitoring system does not even exist
    today.
        So, Ms. Jacoby, do you think that employers will be able to
    comply with this new electronic monitoring requirement? And who
    do you anticipate will pay for the creation and maintenance of
    this new electronic monitoring system?
        Ms. Jacoby. Thank you, Senator. The new monitoring system
    you are talking about I understand is modeled on the SEVIS
    system that tracks foreign students. No, low-skilled employers
    do not have to comply with anything like that at the moment.
    They do not have to comply with applying and getting visas. But
    the overwhelming majority of my members would rather be on--
    want to be on the right side of the law. They try to be on the
    right side of the law, and they want to be in the future. And I
    believe that if a program is provided, they will use it and
    they will get used to some of these hurdles, including having
    to monitor workers and use this system to track when they take
    a job and leave a job and that sort of thing.
        Senator Grassley. Okay. You can go ahead and call the new
    panel.
        Senator Whitehouse. All right. It looks like Senator Lee is
    a little further out than we thought, so I will discharge this
    panel. I want to thank you all for participating in what is a
    very helpful and wide-ranging hearing, and we will be in recess
    just for 2 minutes while the next panel comes up and the signs
    are changed.
        [Pause.]
        Senator Whitehouse. Good afternoon to the new panel, and
    thank you for being here. Welcome to the immigration hearing of
    the Senate Judiciary Committee.
        I am going to introduce all of the panelists very briefly,
    but the first person that I am going to be introducing is Gaby
    Pacheco, who is a DREAMer and an immigrant rights leader
    currently serving as the director of the Bridge Project in
    Miami, Florida. She is a co-founder of Students for Equal
    Rights as well, and I know that Senator Durbin wished to say a
    few words, so I will defer to him for a moment. Then we will go
    across the rest of the panel.
        Senator Durbin. Thanks, Mr. Chairman. I thank you for this.
    At 2 o'clock, the Senate goes in session, and I have a bill on
    the floor, so I have to be there, and I explained that to Gaby
    in advance. I would not want her to think I was leaving in her
    time of testimony.
        Gaby Pacheco has been such an important part of this effort
    on passing the DREAM Act. She came to the United States from
    Ecuador at the age of 7. She was the highest-ranking junior
    ROTC student in her high school. She served as president of
    Florida's Junior College Student Government, and then she got
    actively involved in the DREAM Act.
        I have been at this for 12 years. Gaby, I do not know how
    many you have been, but it has been a few. It involved a number
    of students from Florida who would be eligible for the DREAM
    Act who literally walked from Miami to Washington, and along
    the way gathered students of like mind, some eligible, some who
    were not eligible but wanted to support the cause. And it is a
    cause that has grown in intensity because of your leadership,
    Gaby, and so many others like you.
        So I want to thank you for being here today, and I will
    stick around as long as I can and try to come back for
    questions. But the DREAM Act is where it is today because of
    the courage of young people like yourself. Thank you.
        Senator Whitehouse. The rest of the panel is Janet Murguia.
    She is the president and CEO of the National Council of La
    Raza, the largest national Hispanic civil rights and advocacy
    organization in the United States. You do a wonderful job. I am
    delighted that you are here.
        Dr. David Fleming, the senior pastor at the Champion Forest
    Baptist Church in Houston, Texas, where he has served since
    2006.
        Mark Krikorian, the executive director at the Center for
    Immigration Studies, who has worked there since 1995, a veteran
    in the field.
        Laura Lichter, Esquire, currently serves as president of
    the American Immigration Lawyers Association based in Denver,
    Colorado.
        And the Honorable Kris Kobach, Kansas' Secretary of State.
    From 2001 to 2003, he was also counsel to U.S. Attorney General
    John Ashcroft at the Justice Department.
        Welcome, and we are delighted to have you here. Please
    proceed with your statements. Ms. Pacheco?

             STATEMENT OF MARIA GABRIELA ``GABY'' PACHECO,
       IMMIGRANT RIGHTS LEADER, DIRECTOR, BRIDGE PROJECT, MIAMI,
                                FLORIDA

        Ms. Pacheco. Thank you, Chairman. I also would like to
    recognize Chairman Leahy, Ranking Member Grassley, and the
    Members of this Committee for giving me the opportunity to
    testify today in support of S. 744, the Border Security,
    Economic Opportunity, and Immigration Modernization Act of
    2013.
        My name is Maria Gabriela ``Gaby'' Pacheco and I am an
    undocumented American. I was born in 1985 in Guayaquil,
    Ecuador. In 1993, at the age of 8, I moved to the United States
    with my parents and three siblings.
        Out of everyone who is here testifying today, I am the only
    one that comes to you as one of the 11 million undocumented
    people in this country.
        My family reflects the diversity and beauty of America. We
    are part of a strong working class, a mixed-status family who
    are your neighbors, classmates, fellow parishioners, consumers,
    and part of the fabric of this Nation.
        My father is an ordained Southern Baptist preacher who
    currently works as a window washer. My mom is a licensed
    nurse's aide, but due to health conditions, she has not been
    able to work for the last couple of years. Their hope is to
    continue to support their family while at the same time
    contributing to this country's economic growth.
        My oldest sister, Erika, is eagerly counting the days when
    she is able to apply for citizenship later this year. She is
    married to a United States citizen and has two United States
    citizen children, Isaac and Eriana. She will be able to vote in
    the next national election.
        Mari, my second oldest sister, currently works managing a
    construction company. And although a DREAMer, she did not
    qualify for the Department of Homeland Security's new
    initiative, Deferred Action for Childhood Arrivals, DACA,
    because she is over the age of 30. However, the DREAM Act
    provisions under S. 744 will provide her a permanent path
    forward.
        My younger brother is a proud business owner; he has a car-
    washing business. Last month, at the age of 27, and because of
    DACA, he was able to get a driver's license and buy his first
    car. However, DACA is not a permanent solution.
        Last, I am the wife of a Venezuelan of Cuban descent, who
    has lived in the United States for 26 years. Miraculously last
    year, after 18 years of waiting, he was able to obtain his
    legal permanent residency. My husband's process shows how our
    immigration system is broken, outdated, and desperately in need
    of modernization.
        My family is not alone. In 2009, my friend Felipe Souza
    Matos, co-director of ``Get Equal,'' asked me to join him on a
    journey and campaign to seek immigration reform. In my heart I
    knew that in order to put an end to the separation of families,
    heal the hurt and the pain of our communities, we needed to
    peacefully demonstrate and courageously bring to light our
    (lack of) immigration status. On January 1, 2010, Felipe, Juan
    Rodriguez--now Juan Souza Matos--and Carlos Roa, and I began
    the Trail of Dreams, a 1,500-mile walk from Miami to
    Washington, DC.
        Through this walk we wanted to show our love for this
    country, which we consider our home. We risked our lives, put
    everything on the line. We walked in the cold and felt the pain
    in our bodies and the blisters and callouses forming on our
    feet. We walked in faith knowing that before us in our country
    people had put their lives at risk to fight for freedom, for
    legal reforms, and the American values that this country was
    founded on and aspires to.
        We did not allow anything to stop us, including the fringe
    elements of American society. We witnessed firsthand how
    misinformation and fear mongering confused people about
    immigrants. The phrasing and images that some use to portray
    people like me, undocumented Americans, have created a false
    perception of who we are. It was also during the trail we saw
    firsthand how fear translated into hate. I vividly remember how
    robes of white, in a KKK demonstration, had colored the streets
    of a small town in Georgia. In fact, an event eerily similar
    happened this past Saturday in Atlanta, Georgia. America's
    history, however, shows that we have been here before and we
    have overcome.
        Since the walk, I have carried the stories and dreams of
    thousands of people we met along the way. People working in the
    fields, people working in chicken farms, day laborer centers,
    homes as domestic workers, newspapers as journalists, small
    businesses as owners, and health clinics as doctors and nurses.
    These people are mothers, fathers, children, and neighbors.
    Their dreams are held in the hands of this Committee and the
    rest of Congress. Their dreams now lie in the Senate bipartisan
    bill S. 744.
        Legalizing people like me, the 11 million of us, will make
    the United States stronger and will bring about significant
    economic gains in terms of growth, earnings, tax revenues, and
    jobs. It is time to set fear aside and deal with an issue that
    is affecting the entire Nation, and doing nothing is no longer
    acceptable.
        Americans deserve a modernized immigration system.
    Individuals who are citizens in every way except on paper ask
    for a road map to citizenship,
        In the words of my good friend, journalist Jose Antonio
    Vargas, who testified in front of this very Committee: ``What
    do you want to do with me? What do you want to do with us?
        With dignity and faith I surrender my talents, my passion,
    my life. I ask you to give me, my family, and the 11 million of
    us an opportunity to fully integrate and achieve our American
    Dream.
        Thank you.
        [The prepared statement of Ms. Pacheco appears as a
    submission for the record.]
        Senator Whitehouse. Thank you, Ms. Pacheco, and welcome,
    Ms. Murguia, to you. Welcome. Please proceed.

            STATEMENT OF JANET MURGUIA, PRESIDENT AND CHIEF
            EXECUTIVE OFFICER, NATIONAL COUNCIL OF LA RAZA,
                             WASHINGTON, DC

        Ms. Murguia. Thank you, Mr. Chairman. Thank you to Chairman
    Leahy and Ranking Member Grassley and all the Members of the
    Committee for the opportunity to appear before you al today.
        I want to thank the bipartisan group of Senators who worked
    to find common ground and a common-sense solution on this very
    difficult issue. Senate bill 744 is a significant milestone and
    presents a historic opportunity to move forward on immigration
    reform.
        First, there is a clear path to legalization and eventual
    citizenship at the core of this bill. The sponsors of Senate
    bill 744 recognize that the U.S. has been successful as a
    nation of immigrants because we allow and encourage those who
    come to our shores to fully participate in American life. This
    legislation seeks to ensure that the best interests of our
    country continue to be served. A key step in achieving this is
    requiring the 11 million undocumented immigrants who are
    already here and who want to earn legal status to come forward,
    pass background checks, learn English, and eventually apply for
    citizenship. But I do want to express our concern to the
    Committee that the process may be too long and too costly for
    many who have been working and raising families in the U.S.
        Second, unlike previous immigration reforms, this bill
    would create a 21st century legal immigration system in tended
    to be responsive to U.S. labor needs in a regulated, orderly
    fashion while breaking precedent by providing labor rights and
    protections. This is the best way to prevent the Nation from
    having yet another debate in the future about legalizing
    another group of workers. It is imperative that our legal
    immigration system keep pace with our economy and our changing
    society.
        And while the legislation thoughtfully addresses worker-
    based legal immigration, it does send mixed messages on family
    immigration.
        Make no mistake, our country has had a historic commitment
    to family unity because it is good for society and for our
    economy. We are glad that the bipartisan legislation seeks to
    reduce the unnecessarily long backlog for certain family visas.
    But eliminating visas for groups such as siblings and adult
    children fails to take into account that families today come in
    all shapes and sizes and includes siblings pooling their
    resources together to buy a home or to start a business, adult
    children taking care of their elderly parents, and also
    binational same-sex families.
        Finally, Americans hold immigrant integration in high
    regard and want to see immigrants pledge allegiance to our
    country. So we are very pleased to see that the bipartisan
    legislation also includes many measures and the resources
    necessary to achieve the successful integration of immigrants
    into American society. Immigrants want to learn English and
    make greater contributions to the Nation. I know it because my
    organization and our hundreds of affiliates help immigrants on
    this journey every day.
        In conclusion, I would like to acknowledge that compromises
    will have to be made by all parties. Significant concessions
    have already been made in this legislation, many that cut
    deeply into the interests of immigrants and Hispanics. If each
    of us was looking at only individual pieces of this bill from
    our own parochial perspective, there is much we would be forced
    to oppose. But just as we are asking others to set aside some
    of their priorities to advance our Nation's interests, we
    recognize that all of us have to accept some compromise to
    advance our common goal of producing a bill that reflects a
    strong, effective, and sustainable immigration policy for the
    21st century.
        A bright line will soon emerge between those who seek to
    preserve the status quo, which serves no one except those who
    profit from a broken immigration system, and those who are
    working in good faith to reach compromise and deliver a
    solution the country desperately needs.
        Put in stark terms, those who oppose progress are not just
    advocates for doing nothing. In essence, they are advocates for
    worse than nothing. Opponents of progress would ignore the
    growing gap between the needs of a 21st century society and a
    legal immigration system that has remained unchanged for nearly
    three decades. They would be opposing a level playing field for
    American workers and the accelerated integration of immigrants.
    In short, many offer the same feeble failed policies that may
    advance their political interests but do not produce real
    results.
        This bright line will be seared into the minds of Latino
    voters, those voters who created the game-changing moment for
    this debate in November and the additional 14.4 million U.S.-
    born and -raised prospective Hispanic voters that will join the
    electorate between now and 2028.
        Our community will be engaged and watching closely to
    ensure that the legalization process is real, enforcement is
    accountable, and families and workers are protected.
        Thank you.
        [The prepared statement of Ms. Murguia appears as a
    submission for the record.]
        Senator Whitehouse. Thank you, Ms. Murguia, and thank you
    also for the important role that the National Council of La
    Raza has played in this discussion and will continue to play.
        Ms. Murguia. Thank you.
        Senator Whitehouse. Before we get to Pastor Fleming,
    Ranking Member Grassley has a statement from the National
    Association of Former Border Patrol Officers. That will,
    without objection, be placed into the record.
        [The prepared statement of the National Association of
    Former Border Patrol Officers appears as a submission for the
    record.]
        Senator Whitehouse. Now we will hear from Pastor Fleming.
    Please proceed, sir.

               STATEMENT OF DAVID FLEMING, SENIOR PASTOR,
             CHAMPION FOREST BAPTIST CHURCH, HOUSTON, TEXAS

        Pastor Fleming. Thank you, and good afternoon, Senators,
    and thank you so much for the privilege and the opportunity to
    participate in this process as you work towards a bipartisan
    solution to our Nation's current immigration crisis.
        As a pastor, I got involved in this debate simply as a
    result of my everyday ministry responsibilities. My personal
    encounters with hurting people have just compelled me to work
    towards improving a system that just is not working. It is not
    working for a young father with children back home, for a widow
    and mother of two teenagers, for a family that has done
    everything to come legally but is caught in a system that is
    painfully slow, inefficient, and often simply unfair.
        I have spoken to law enforcement officials, immigration
    attorneys, and government officials at every level. Everyone
    agrees as to the magnitude of this problem.
        But when it comes to proposed solutions, the ones we have
    heard typically have come from one of two opposing poles. From
    the one pole we have heard what sounds like a call for open
    borders and amnesty with little regard for the rule of law or
    our national security. From the other pole, we have heard a
    call for closed borders and deportation, which seems to have
    too little regard for human dignity and potentially comes at
    the expense of our national identity. We are a nation of
    immigrants. With such strong and opposing forces, we have heard
    plenty of rhetoric but seen no workable solutions until perhaps
    now.
        In the midst of this confusion, I as a pastor have wondered
    what God has to say. I read in Romans 13, ``Let every person be
    subject to the governing authorities. For there is no authority
    except from God, and those that exist have been instituted by
    God. Therefore whoever resists the authorities resists what God
    has appointed, and those who resist will incur judgment.'' God
    is a God of order, and our Nation must be a Nation of law, and
    our laws must be just.
        But I also read in Leviticus 19, ``When a stranger sojourns
    with you in your land, you shall not do him wrong. You shall
    treat the stranger who sojourns with you as the native among
    you, and you shall love him as yourself, for you were strangers
    in the land of Egypt.'' God expects us to treat all people with
    compassion, each person having been created in His image.
        So which is it, Senator? The law and justice or mercy and
    compassion? And the answer is: Yes. There is balance in the
    tension between the two. We ought to be guided in all that we
    do by a relentless commitment to protect the inherent value and
    the dignity of human life, and to alleviate human suffering
    whenever and wherever we can.
        Senators, there is more at the heart of this debate than
    millions of undocumented immigrants. There are millions of real
    people with names and faces. I can assure you that each one
    matters to God, and each one should matter to us. So we need a
    legal system and public policies that are certainly just but
    that are also humane.
        I recognize I am not in the majority perhaps at time and
    maybe not everyone shares my convictions, but I want you to
    know there are a great many Americans who do. I am a local
    church pastor, but I have the privilege to stand with thousands
    of pastors from across the country who represent a growing tide
    of support for a bipartisan effort and a comprehensive approach
    to immigration reform.
        In my city, the Houston Area Pastors Council wrote a
    Declaration on Immigration Reform, and more than 1,000 pastors
    representing the great diversity of Houston and of Texas signed
    on. The Southern Baptist Convention, of which I am a part, with
    45,000 churches and more than 16 million members, passed a
    resolution in 2011 calling for just and humane public policy
    with regard to immigration. And most recently a national
    coalition of Christian denominations and organizations has been
    formed. It is known as the Evangelical Immigration Table, with
    thousands of Christian leaders representing millions of
    members. It is calling for bipartisan comprehensive reform
    that: respects the God-given dignity of every person; that
    protects the unity of the immediate family; that respects the
    rule of law; guarantees secure national borders; ensures
    fairness to taxpayers; establishes a path toward legal status
    and/or citizenship for those who qualify and who wish to become
    permanent residents.
        That is why I am grateful to see the introduction of this
    legislation. While this bill may not be perfect yet, it appears
    to be an excellent starting point for a bipartisan discussion
    that moves the debate forward toward real solutions that work
    for real people.
        In a passionate debate with opposing views, some of us are
    called to speak for those who cannot speak for themselves. In
    the end I will stand before the Lord and give an account, and
    it will be clear whether or not I cared about what God cares
    about and whether I did what I was supposed to do, not because
    it was popular with men, but because it was right with God.
        And so I am calling on you, our representatives and our
    leaders, who no doubt share my sense of calling and
    responsibility. Let us not waste this opportunity to do the
    right thing under God and for the sake of people created in his
    image. And we want you to know that we are supporting you, we
    are praying for you, and we are with you as you work through
    this bipartisan and comprehensive reform.
        Thank you.
        [The prepared statement of Pastor Fleming appears as a
    submission for the record.]
        Senator Whitehouse. Thank you, Pastor.
        Next is Mr. Krikorian, the executive director of the Center
    for Immigration Studies. Please proceed.

      STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR
                  IMMIGRATION STUDIES, WASHINGTON, DC

        Mr. Krikorian. Thank you, Senator. I will be talking about
    the legalization parts of the bill, but since Senator Schumer
    had taken my name in vain, as it were, at the beginning of the
    hearing, I wanted to respond very briefly to a comment he had
    made.
        The Boston bombing is not an excuse for delay of
    considering this immigration bill, but it is an illustration of
    certain problems that exist with our immigration system. And I
    will just to touch on a few of them before I move on to the
    main body of my comments.
        Why were the Tsarnaevs given visas to come to the United
    States to begin with? This is a question nobody seems to have
    answered.
        Why were they given asylum since they had passports from
    Kyrgyzstan? And especially why were they given asylum since the
    parents have moved back to Russia, the country supposedly they
    were fleeing and wanted asylum from?
        What does it say about the automated background checks that
    this bill would subject 11 million illegal immigrants to that
    in-person interviews by FBI agents of Tamerlan Tsarnaev
    resulted in no action even though it was actually based on
    concerns about terrorism.
        And what does it say about our broken patriotic
    assimilation system that legal, relatively privileged immigrant
    young people became so alienated that they engaged in this kind
    of mass murder against Americans.
        Let me move to the legalization part of this bill, S. 744.
        There may actually be circumstances under which amnesty for
    certain illegal aliens can make sense. The question is: Do you
    do it before or after the problems that created the large
    illegal population have been solved?
        Unfortunately, S. 744 puts the legalization of the illegal
    population before the completion of the necessary tools to
    avoid the creation of a new illegal alien population in the
    future.
        What is more, the legalization provisions of the bill make
    widespread fraud very likely if this, in fact, goes into
    effect.
        Much has been made of the triggers that would permit the
    registered provisional immigrants to receive permanent
    residence. And those triggers are clearly a step in the right
    direction--improvements in exit tracking, employment
    authorization, border security.
        The problem is, with regard to legalization, those triggers
    are essentially irrelevant, because the only trigger that
    matters to the legalization is the presentation of two border
    security plans by Homeland Security. And, frankly, given the
    number of similar plans that have passed before this body and
    elsewhere, it is not much of a hurdle.
        Unfortunately, it is the only hurdle that matters because
    receipt of this RPI status is the amnesty. That is to say, it
    transforms the illegal immigrant into a person who is lawfully
    admitted into the United States. The rest of it is an upgrade
    from one legal status to another legal status, not the amnesty
    itself.
        Essentially, the other triggers would trigger an upgrade
    from ``Green Card Lite,'' if you will, which is to say work
    authorization, Social Security account, driver's license,
    travel papers, et cetera, Green Card Lite to Green Card
    Premium, which is the regular green card.
        And, unfortunately, as far as the incentives, the political
    and bureaucratic incentives, to get those benchmarks enforced,
    that upgrade does not really create much of an incentive to get
    things done. Once illegal immigrants are out of the shadows and
    no longer undocumented, the urgency on the part of amnesty
    supporters to push the completion of those security measures
    essentially evaporates.
        What is more, many of those who receive this RPI amnesty
    are likely to do so frequently. In reading the requirements in
    Section 2101 here in the bill, it harkens back to the
    Immigration Reform and Control Act, which the New York Times
    rightly called ``one of the most extensive immigration frauds
    ever perpetrated against the United States Government.''
        Just to touch on a few of the things that would result in
    such fraud, IRCA created a crush of applications, according to
    the Department of Justice Inspector General. That was only 3
    million people. What kind of crush will we see with 3 or 4
    times that many applicants.
        The bill does not require interviews of amnesty applicants,
    and, in fact, we have seen with the DACA amnesty that is going
    on now very few people are interviewed, 99.5 percent of
    applicants have been approved so far.
        The bill permits affidavits by non-relatives regarding work
    or education history. Fraudulent affidavits were extremely
    widespread in IRCA and created much of the fraud that we dealt
    with in that program.
        The current bill also includes a confidentiality clause,
    essentially a sanctuary provision, prohibiting any information
    to be used against the applicant.
        Likewise, it does not require the deportation of any failed
    applicant, essentially creating a heads-I-win, tails-you-lose
    situation where the applicant can simply apply and know he can
    never be deported.
        And just to end, the consequences of this kind of fraud is
    very serious. We do not have to speculate. We saw from last
    time Mahmoud the Red Abouhalima, an Egyptian illegal immigrant
    driving a cab in New York, fraudulently received amnesty as a
    farm worker, and that legal status permitted him to travel to
    Afghanistan, get his terrorist training, and help lead the
    first World Trade Center attack.
        So I would encourage this panel to look hard at these
    legalization provisions and see if there is any way to salvage
    them and to avoid the kind of problems that we are almost
    certain to get.
        Thank you.
        [The prepared statement of Mr. Krikorian appears as a
    submission for the record.]
        Chairman Leahy [presiding]. Thank you, Mr. Krikorian. I do
    not want to take from the time of the others.
        The next witness is Laura Lichter, who currently serves as
    the president of the American Immigration Lawyers Association
    based in Denver, Colorado.
        Ms. Lichter, thank you very much, and thank you, Mr.
    Krikorian. Please go ahead.

            STATEMENT OF LAURA L. LICHTER, ESQ., PRESIDENT,
           AMERICAN IMMIGRATION LAWYERS ASSOCIATION, DENVER,
                                COLORADO

        Ms. Lichter. Thank you, Mr. Chairman, and thank you for the
    opportunity to address you today on this exceedingly important
    and historic moment.
        I will not use up my time to argue with Mr. Krikorian about
    his conclusions on these things, but I can tell you that the
    mess we have today in our immigration laws, frankly, sirs and
    madam, is the mess that we designed. We have been living with a
    failed experiment now for almost 20 years, and I would suggest
    that if your head hurts from banging your head against the
    wall, the solution is not to bang your head harder.
        The architecture of this bill shows great creativity, great
    courage, and I would argue that the Gang of Eight has shown
    great perseverance in reaching a very good bipartisan
    architecture. Our concerns at this point, however, are that we
    not lose sight of some very core values that aid in our
    communities.
        Families really are the cornerstone of our communities, and
    it is a tragic irony that our current system places road blocks
    in the face of the people that have the most significant and
    deepest ties to our communities. Family applications are
    plagued by long delays. I just pulled up the visa bulletin this
    morning to see what those delays were, and the adult child of a
    U.S. citizen would wait over 7 years to even begin the process.
    If that individual is from Mexico, we are talking over two
    decades.
        If we start talking about categories which are now
    apparently under siege, the Family Third Preference for married
    children and siblings of U.S. citizens, those backlogs go back
    decades as well.
        It should be clear that we should not recognize a false
    dichotomy between business immigration and family-based
    immigration. They interrelate. Many of our most important
    innovators and entrepreneurs actually came through the family
    system, not merely the business system. Less family-friendly
    policies may actually dissuade highly skilled immigrants who
    have families from choosing to immigrate to the United States,
    and especially in the case of individuals who are members of
    the LGBT community, it may force us to lose our own citizens
    who will immigrate to other countries in order to keep their
    families intact.
        The best thing I can do is give you examples to tell you in
    my experience how this actually impacts people. We see families
    torn apart. We see people without options. We see adult
    children of people who could be sponsored who are left out,
    those brothers and sisters, folks who might have no ability to
    immigrate on their own, even through the proposed merit-based
    system.
        We can see that for LGBT couples, for example, an
    individual who is married in the United States but does not
    have another way to stay in the country, that that individual
    is at a road block and cannot immigrate under the current
    system or even under the proposals.
        We do want to thank the Gang of Eight and especially
    Senator Leahy for your leadership in the asylum arena.
    Streamlining this process, providing more due process,
    increases efficiencies, and getting rid of the arbitrary 1-year
    filing deadline for asylum cases will increase the fairness of
    this process, which is at the key of our vision in the world as
    the upholders of freedom and fairness.
        Immigration court has been described as something on the
    corner of byzantine and absurd. It is death penalty
    consequences with traffic court rules. We see backlogs that
    remain well over 300,000 cases despite significant efforts by
    ICE to prioritize the cases that are in removal proceedings.
        We are encouraged by the effort to include more counsel for
    people going through proceedings, especially individuals who
    are detained. An expansion of the legal orientation program
    provides a win-win-win-win impact for the courts, for the DHS,
    for the justice system, and for the immigrants themselves.
        We need to ensure that we do not resort to draconian
    bright-line limits. They simply do not work. They do not deter
    behavior, and they do not accommodate the need for humanitarian
    consideration of cases on a case-by-case basis.
        Immigration detention also needs a more significant eye
    towards it. Right now, we have seen an incredible increase in
    spending on detention and an increase in the number of beds,
    and I would like to see that we have more alternatives to
    detention as we go forward under the new bill.
        I would like to make one brief comment as to the concern
    for fraud going forward under the legalization program. What we
    have seen under deferred action actually is a very important
    effort by the Government, and kudos to USCIS for actually
    presenting incredibly useful information on its website and
    administering the program in an intelligent way so that the
    public cannot be victimized.
        There has been an incredible partnership by the immigration
    bar, by community-based organizations, and others to make sure
    good, solid information gets out there. And good, solid
    information and representation are going to be the keys to
    making sure that a program does not suffer from fraud or any
    other abuses.
        Thank you.
        [The prepared statement of Ms. Lichter appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much, Ms. Lichter.
        Our next with, Kris Kobach, is the Kansas Secretary of
    State. We know him on this Committee; from 2001 to 2003 he was
    counsel to U.S. Attorney General John Ashcroft.
        Please go ahead, sir.

              STATEMENT OF HON. KRIS W. KOBACH, SECRETARY
               OF STATE, STATE OF KANSAS, TOPEKA, KANSAS

        Mr. Kobach. Thank you, Mr. Chairman.
        This bill has been portrayed as a balance between an
    amnesty or legalization and enforcement, and in my testimony I
    want to stress to you that it is not a balanced bill. In my
    written this I offer nine reasons why this bill is problematic
    and not at all balanced. I want to just stress the most
    important six here--three problems with the amnesty provisions
    and three problems with the enforcement provisions.
        The first one with the amnesty provision is that the
    background checks in this bill are insufficient to prevent a
    terrorist from getting the amnesty. The biggest problem is
    this: The bill has no requirement that you provide a
    Government-issued document that says you are who you say you
    are. So what that does is it allows the terrorist to create a
    new fictitious identity, invent an unusual name--
    Rumpelstiltskin, for instance. He gets an identity card from
    the Government under this bill, verifying and giving
    credibility to that new identity. He also gets legal status,
    which allows him to travel abroad under that new identity.
        Now, the Tamerlan Tsarnaev example demonstrates how
    important an alien's ability to have freedom of movement and to
    travel abroad for terrorist connections and terrorist training
    is and how dangerous it can be for Americans.
        Now, it should be pointed out that even if a terrorist
    attempts to use his real name to gain the amnesty, the
    background check in most cases is unlikely to stop him. Again,
    the Tamerlan Tsarnaev example illustrates the point. As was
    mentioned by Mr. Krikorian, most of these aliens are not going
    to have personal interviews. Tsarnaev had at least two
    background checks, and he had a personal interview with the
    FBI, yet they still were unable to conclude that he might have
    terrorist intentions and should be barred from the country. And
    that was far more scrutiny than these aliens are going to have.
        Under the last amnesty in 1986, we had multiple terrorists
    who were amnestied out of 2.7 million amnesties granted. This
    is much larger. It is simply a mathematical likelihood that it
    will happen again on a greater scale.
        The second problem, absconders and people who have already
    been deported are legalized under this amnesty. I am not aware
    of any amnesty in our country's history where we have reached
    back and grabbed people who have already been removed from the
    United States and brought them back in to gain the amnesty, and
    perhaps even worse, absconders are made eligible for the
    amnesty. Now, for those of you who do not remember the term
    ``absconder,'' it is someone who has already been removed by a
    immigration court, had his day in court, but he becomes a
    fugitive and remains in the United States and disobeys the
    court order. This amnesty allows the absconders to remain. What
    kind of perverse incentive will that be going forward? Our
    immigration courts will be basically sending a meaningless
    message: ``We are ordering you to be removed from the United
    States, but if you hang out and you can remain a fugitive until
    the next amnesty, you will be able to stay in the United
    States.''
        The third problem with the amnesty is it legalizes
    dangerous aliens who received deferred action under DACA. As
    you know, the DACA directive was enacted by the--not even
    enacted--proclaimed by the Secretary of Homeland Security in
    June of 2012. It is now in effect. Large numbers of people have
    gotten it. It violates Federal law at 8 U.S.C. 1225, certain
    aliens must be placed into removal proceedings. That is what
    this Congress said in 1996. The DACA directive says, no, you do
    not have to put them in removal proceedings.
        There was a hearing in April, on April 8th in Dallas in
    Federal district court. We learned at that hearing that, under
    the DACA directive, multiple dangerous aliens who had been
    arrested but not yet convicted of serious crimes had been
    released back onto the streets--one for assault on a Federal
    officer, sexual assault on a minor, trafficking in cocaine.
    Those dangerous aliens will be eligible for the amnesty under
    this bill.
        Now, three quick problems why the enforcement provisions
    are not serious.
        First, the 90-percent threshold is meaningless. This bill
    promises an effectiveness rate of 90 percent. But it is 90
    percent of the individuals who attempt to come into the
    country, that they will be stopped or turned back. But there is
    no way of knowing the denominator. We have never had the
    ability to calculate the number of people who evade border
    security enforcement, and we probably never will.
        The second problem with this point is that it does not
    measure 90 percent over the whole border. It only does so at
    supposedly the high-risk areas where the apprehensions are over
    30,000. As we know, over the pas few decades, every time the
    Border Patrol does something different here, the smugglers move
    their networks to a different part of the border. So DHS may
    report, hey, we have got 90-percent success here, however they
    are measuring it, but, in fact, the smugglers have long
    abandoned that part of the border and they have gone to a
    different part of the border.
        And, finally, third, DHS, as was recently revealed in that
    same April hearing, we now know has been cooking the books as
    far as its removal numbers. They were claiming a record number
    of removals of 410,000 in fiscal year 2012. We now know that
    that number is overreported, inflated by about 86,000. If they
    are not fairly calculating their numbers now, why should we
    expect them to fairly calculate the 90-percent figure?
        The second problem with the enforcement provision: It
    hobbles State enforcement efforts. This bill has a preemption
    clause in it that says State efforts to discourage the
    employment of unauthorized aliens in the workplace will be
    preempted. Many of those State efforts have been the only
    enforcement in the workplace during the last 4 years to speak
    of. Most notably in Arizona, the Legal Arizona Workers Act was
    implemented at the beginning of 2008, and in those first 3
    years of implementation, Arizona saw a drop of 36 percent in
    the illegal alien population compared to a 1-percent drop
    nationwide. Those State efforts will be gutted if this bill
    becomes law. Indeed, there could be a vacuum, because while
    this new electronic verification system is being created,
    States will be prevented from doing absolutely at. That is an
    important flaw in the bill.
        And then the final flaw I would mention is that the bill
    scraps the E-Verify system. We have over 400,000 employers
    using
    E-Verify. Four States mandate it. Many other States require it
    for businesses who are receiving Government contracts. But,
    inexplicably, this bill scraps that proven system and replaces
    it with something else, some other electronic verification
    system, even though E-Verify gets over 98 percent approval
    ratings among employers who use it. One has to wonder why they
    are doing this. Why is the bill written this way? The only
    explanation I can see is delay. Because of the prolonged phase-
    in periods and the fact that E-Verify regs probably do not even
    have to be in place until 5 years from enactment, you are
    talking about a 9-year period at the minimum before this thing
    is likely to be in effect, the new
    E-Verify, the new electronic verification system is likely to
    be in effect.
        In short, this bill does not seem to be a good faith effort
    to bring enforcement to the workplace. If it were serious, it
    would simply say make E-Verify mandatory now, give large
    employers 1 year, give other employers 2 or 3 years, like the
    States have done very successfully.
        Thank you.
        [The prepared statement of Mr. Kobach appears as a
    submission for the record.]
        Chairman Leahy. Well, I am sorry you feel that the four
    Republican Senators and four Democratic Senators did not work
    in good faith. I know all eight of them very well. They have
    met with me. I think they worked very, very hard to work in
    good faith.
        Ms. Pacheco, in 2010, you were part of a courageous march
    to Washington pursuing your dream. That made me think of the
    civil rights marches of the 1950s and 1960s, and I am old
    enough to actually remember them. Since then, you have inspired
    an entire generation of young people who were brought to the
    United States through no fault of their own. You taught them to
    come out of the shadows. You do this even though you risk being
    taken out of the only country you have ever known as home.
        What inspires you to do that? What inspires you to step
    forward that way?
        Ms. Pacheco. Thank you, Senator Leahy, for your question.
    And it is simply put in one word: love. The love that I have
    for this country, the love that I have for my family, for the
    community that I grew up in, and the love that I have for
    myself, because I do have a dream. I have three degrees. I have
    a bachelor's in special education, and I want to be able to
    open a music therapy center to work with people with Down's
    syndrome, autism, and mental disabilities. And that is what
    drives me, and I think what drives a lot of undocumented young
    people who are in this country, who are seeking an opportunity
    for themselves and for their family. And in that 1,500-mile
    walk, all we did was talk to people, everyday people, and after
    two seconds of telling our stories and sharing with them what
    was really happening with our immigration system, we were able
    to change a lot of hearts and minds.
        Chairman Leahy. Thank you.
        Ms. Murguia--I am so used to calling you by your first name
    when we see each other, but you are the president of the
    largest Hispanic civil rights organization in the United
    States, so I think that carries a lot of weight with Hispanics
    in America.
        As you know, I have supported immigration reform for years
    and years. Even though that is not a major issue in Vermont, I
    think it is a major moral issue for this country. But I worry
    about a proposal that contains false promises. I have always
    wanted something straightforward and fair and achievable.
        Is the legalization proposal in this bill, drafted by the
    eight Senators, do you consider it straightforward, fair, and
    achievable?
        Ms. Murguia. I do believe that there was a good faith
    effort to modernize our legalization program, and I think that
    is a really important step, because I think what we failed to
    do in 1986--and it was a failure to acknowledge--was that, on
    the one hand, we did not create the flexibility, the
    foresightedness, to look at how we might be able to make
    adjustments in terms of our economy and the needs of our
    country and its workforce. This program seems to build that in,
    and we want to make sure that that is something that can be
    done.
        On the one hand, I think this also reduces the backlog for
    many who have been waiting a long time for family visas, and
    for us I think that is a really important step.
        On the other hand, we do have some concerns about the
    elimination of the program for siblings and adult children. I
    think that when you look at the bill as a whole and all the
    parts that it has, there is a lot to like and dislike, but
    overall I think right now this presents a framework that we can
    build upon as we move forward. So I am very encouraged by what
    I have seen.
        Chairman Leahy. Well, thank you.
        Dr. Fleming, you currently lead a church in Texas, and I
    believe before that in Florida. You spoke about the moral
    imperative to reunite families and help millions of people, and
    I have referred to the moral aspects of it, and earlier I
    mentioned being the grandson of immigrants. My wife is the
    daughter of immigrants. And on the other side of my family, I
    am the great-grandson of immigrants. I remember my grandparents
    speaking of the morality of people coming to this country and
    being--they always insisted we work hard to be good citizens.
        What brought you to speak out publicly in this matter? You
    have a lot of issues as a pastor that you might speak out on.
    What brought you to speak out on this one?
        Pastor Fleming. Well, thank you, Senator Leahy. In my
    remarks, as I mentioned, it is the human aspect for me, and it
    is the strong sense of God's movement and working in this as it
    relates to the humanity side. I am not a politician. I am not
    an attorney. I am certainly woefully unqualified to speak in
    terms of policy and how do we work out these details. But what
    I have a sense of calling for in this is just to keep reminding
    us that there is no solution at either pole or either extreme.
    We have got to come together to the middle of this thing, and
    we have got to keep the humanity of those involved very much in
    the front of our minds.
        I am excited to say there has been a rising middle voice in
    this debate, and I am excited to see that. We have made a lot
    of progress, and I am grateful that we are here talking about
    it today. I really feel something good is going to happen.
        Chairman Leahy. My final question of Ms. Lichter: Do you
    think this will bring people out of the shadows and register?
        Ms. Lichter. Absolutely. We see this on a daily basis.
    People want to know how do they pay their taxes, how do they
    join the military, how do they start a business. They want to
    be fully functioning members of their communities.
        Chairman Leahy. Thank you.
        Senator Grassley.
        Senator Grassley. My first question is to Mr. Krikorian. My
    understanding of the bill so far is that undocumented
    immigrants will get every opportunity to apply for
    legalization, and they will have more opportunities if this
    bill were to pass to appeal the decisions that the Homeland
    Security officials make. Would you discuss that part of the
    bill, please?
        Mr. Krikorian. The bill permits the people who are in
    deportation proceedings to apply for the amnesty, people who
    have already been deported, at least who were deported over the
    past roughly year and a half, certain ones of them, to apply
    for the amnesty. If they are turned down initially because of
    some inadequate documents, they are allowed a second bite at
    the apple.
        So, you know, this--I do not mean to be flip about it, but
    this subheading--I mean, you know, this section could have
    subheaded, ``No illegal alien left behind.'' I mean, the goal
    really seems to be to get amnesty for as many people as is
    physically possible.
        Senator Grassley. Okay. Mr. Kobach, I am going to quote a
    section of the bill and then ask you to tell us what you think
    it means. On page 330 of the bill--and this is in the
    Legalization Title--it says, ``The Secretary may exercise
    discretion to waive a ground of inadmissibility if the
    Secretary determines that such refusal of admission is against
    the public interest or would result in hardship to aliens,
    United States citizen or permanent resident parent, spouse or
    child.''
        Mr. Kobach. Thank you, Senator Grassley. That provision on
    page 330 of the bill I think is a huge loophole, and I do not
    think the DHS Secretary should have this immense discretion.
    And this is a massive increase over the discretion we see in
    current law. It radically expands current law, which allows
    waivers in cases of extreme hardship. This little change of
    language can have huge consequences. Now we are just down to
    hardship.
        It also expands the hardship to the alien's parent as well.
    That is not part of current law.
        Now, two pages before that, on page 328, the same
    unprecedented discretion is also given to immigration judges in
    immigration court proceedings, and they would have the
    authority to terminate those proceedings, again, on this very
    low threshold of hardship to a wide variety of people.
        Now, we should also note that the waiver can also be
    applied to people who have already been deported and are
    inadmissible. So, for example, a person who has been removed
    and perhaps has been convicted of some form of domestic
    violence or spousal abuse could come back in and try to claim
    eligibility under this waiver.
        So this is a loophole that might seem small enough, but it
    is actually very big.
        Senator Grassley. Again, do people that apply for
    legalization, this means RPI status, and get denied have an
    opportunity to appeal the decision? And if so, what is that
    appeal process? What impact would it have on the Federal court
    system?
        Mr. Kobach. Well, I think you are going to find--the answer
    is yes. As Mr. Krikorian also mentioned, they do have this
    right to appeal. And we already see the immigration courts, you
    know, overflowing with cases, and this is a constant complaint
    that the immigration courts--it is one that goes back all the
    way to the time when I was at the Justice Department over 10
    years ago and we were trying to deal with the issue then. Now
    you are going to be sending all of the people who are denied
    this amnesty into the immigration court system, and you are
    going to be overloading it even further. And I think you are
    going to find that the system is--there is going to be a
    tendency now with this discretion for judges to look for easy
    outs to clear their docket. And I think the excuse for many
    immigration judges will be to go ahead and exercise discretion
    if anyone related to the alien within the defines of that
    family unit, as is in the bill, can say that they are suffering
    hardship.
        So I think the combination of overloading the system plus
    this wide discretion is going to be problematic.
        Senator Grassley. Again, some may say this bill is a boon
    to immigration attorneys and that it creates more loopholes
    than it closes. Do you know of any specific provision that will
    only create loopholes down the road?
        Mr. Kobach. There are a number that jump to mind. In the
    employment provision, it does not--the employment restrictions
    do not apply to ``casual, sporadic, irregular, or
    intermittent'' employees. Intermittent employees is clearly
    intended to refer to day labor, which is what a huge number
    of--a large percentage of illegal aliens perform right now. One
    could argue that because of the discretion in applying the word
    ``intermittent,'' that might even be applied to seasonal labor.
    So, again, that could be a huge loophole.
        There is also a loophole for employers who make a good
    faith attempt to comply with the verifying of employees, but
    that good faith attempt seems ill-placed here because E-Verify
    under the current system is so easy to comply with. It is not
    like people have a problem when they sign up on the Internet
    and then they run names through the E-Verify system. So one
    wonders what could possibly be a good faith failure. ``I tried
    to look for the DHS website, and I could not find it''? Is that
    good enough to be good faith?
        There is also a clear and convincing evidence standard for
    employers who violate the provisions of this bill. That
    elevates the standard very high, unnecessarily high.
        So I think employers are, again, given lots of leeway.
    These are just a few of the loopholes, and I could go on.
        Senator Grassley. My time is up. Just let me make a closing
    comment. And the use of waivers came up several times in my
    questioning here.
        I think, you know, we cannot blame the President if he has
    certain authority and he uses it. So I do not want to use the
    word ``abuse.'' But I think we can say that this President has
    taken more advantage of opportunities that have been given to
    him under law. And when we consider the 1,693 delegations of
    authority to the President under the health care reform bill, I
    think that we ought to be very careful in this legislation, as
    important as it is that we have immigration reform, not to
    overdelegate authority and waivers and things like that.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you. I will turn to Senator
    Klobuchar, but before I do, I would note that wherever we are
    as we approach 10 of, I am going to pause for a couple minutes.
    The Senate--in fact, I preside at the opening of the Senate
    wearing my other hat as President Pro Tem, and it was decided
    that at 10 minutes of 2:00 the Senate and the Committees would
    hold a moment of silence, and I will announce that as we are
    closer to 10 minutes of 2:00.
        Senator Klobuchar, go ahead.
        Senator Klobuchar. Thank you very much, Mr. Chairman.
        With the last panel, I really focused on the economics of
    this bill and how important it was to our country's economy to
    move forward on reform. And here I want to get out an issue
    that I think is equally important. I guess I will start with
    you, Ms. Murguia, about the U-visa part of this bill. I am a
    former prosecutor, and I saw firsthand dozens of cases where
    immigrant women would be victims and then their perpetrator of
    either domestic violence but mostly rape, mostly young women,
    would then hold over them that they would be deported if they
    reported it to the police or if they allowed a prosecutor to go
    forward with the case. Sometimes they would report it, though
    they would have to because law enforcement knew about the case,
    but then they would try to get them to back down and change
    their story and other things like that based on legal threats.
        We tried really hard in the Violence Against Women Act. We
    did keep the U-visa program in there and extended it to also
    stalking victims, which was important. But we did not expand
    the number of U-visas. And in this bill, the Gang of Eight,
    realizing the importance that this tool has for law
    enforcement, did expand them. And so could you talk about why
    this is so important for law enforcement? And if you want to
    add anything, Ms. Lichter?
        Ms. Murguia. Thank you, Senator Klobuchar. Thanks for your
    leadership on the VAWA act. I know that was a huge victory for
    many of us and wanted to support that. But you are right, we
    have seen incidents that are higher than normal. In many of
    these communities, the stresses on these families are enormous,
    and yet we have not had the assurances that these protections
    would be built in. And with this bill, we have seen a major
    effort to allow for more of those visas and allow for folks to
    come forward when they feel that they are at risk and to not
    violate their status.
        So this is a huge step forward for us, and we really are
    appreciative of the Gang of Eight and their thoughtfulness in
    that regard.
        Senator Klobuchar. Thank you.
        Did you want to add anything, Ms. Lichter?
        Ms. Lichter. Yes, and, again, thank you very much for your
    leadership on this. This is a critically important piece,
    frankly, of law enforcement because it means that immigrant
    victims of crimes can step forward and help prosecute their
    abusers, whether it is something, as you said, a rape or
    domestic violence or something even more heinous.
        The one thing that I think we need to see a little more
    attention to is the removal of the need to have a law
    enforcement certification. What we find is that the victim him-
    or herself ends up being sort of the victim of the political
    tenor of the particular area in which they were victimized, and
    that should not have any place in this. If a victim is
    courageous enough and brave enough to come forward and testify
    and assist in prosecution, then that should stand on its own.
        Senator Klobuchar. So that is something you would like to
    see added?
        Ms. Lichter. Yes, ma'am.
        Senator Klobuchar. Ms. Lichter, another subject. Most of
    the focus we had with the last panel on visas and green cards
    was on engineering, science, and those types of technology
    visas and green cards. But as you know, the U.S. is also facing
    a daunting shortage of doctors. One of the things I have worked
    very hard on with this bill and want to improve is the funding
    for homegrown science, technology, engineering, and math
    degrees and getting more scholarships and getting the high
    schools and getting big money into this based on the fees that
    are being paid for these visas, which should temporarily help
    us bridge the gap.
        But one of the areas which I have seen in the rural parts
    of our State is the need for doctors, many of them trained in
    the U.S. but happen to be from other countries, to be able to
    work in rural and inner-city areas, underserved areas. In the
    last decade, my State alone has recruited over 200 doctors
    through the program called the Conrad State 30 program to our
    State. I reintroduced this bill, led the bill with Senators
    Heitkamp, Moran, and Collins, and this is also included, along
    with many other good things, in this Gang of Eight proposal.
        Could you talk about how important it is when you have a
    rural area and you do not--we had one hospital that almost was
    not going to be able to deliver babies anymore because they did
    not have a doctor that could perform a C-section. So especially
    in rural areas, this is very important.
        Ms. Lichter. Thank you also again for your leadership on
    this area. This is another area of critical importance. We have
    a high number of medical graduates who are foreign born. They
    are willing and eager to take these jobs out in rural areas and
    in some underserved urban areas as well. And anything we can do
    through the immigration laws to assist them with that process
    really is going to inure to the benefit of our communities.
        Senator Klobuchar. One last question. You mentioned going
    after fraud and abuse in your testimony in Government programs,
    how important that is, including in the immigration context,
    that DHS, the Department of Labor, and the Justice Department
    should use their auditing and prosecutorial authorities to
    combat the misuse of all visa programs and protect foreign
    workers from abuse, which in turn protects American workers.
        What does this bill do to improve the tools the Government
    has to prevent potential misuse of our visa programs?
        Ms. Lichter. Well, my understanding is that there are
    numerous opportunities and numerous elements of this new bill
    that would allow us to combat abuse, and numerous mechanisms
    to, frankly, just investigate that abuse. I think at this point
    in time, under the law as we currently have, that is where I
    think things are a bit anemic. We need to have more process in
    there.
        I would caution, though, that that process needs to be
    fair, it needs to be balanced, and it needs to make sure that
    all sides are heard.
        Senator Klobuchar. Very good. I appreciate that. I think
    people have to hear these parts of the bill as well as the
    important pathway to citizenship and other things. There are
    actually things that we are doing that make it more possible to
    enforce against fraud and other things that just are not in
    existing law.
        Thank you.
        Chairman Leahy. I told Senator Sessions that I wished to
    interrupt his time if speaking, and we are now within a minute
    of the time. Just so everybody will understand who came in
    late, the Senate agreed by consent this afternoon when it came
    in that at this time we would observe a minute of silence in
    memory of the people, the police officer, and others who were
    killed and those who lost life and limb at the Patriots' Day
    Boston Marathon. So I would ask those who wish to join, if you
    would please join me and stand for a moment of silence.
        [Moment of silence.]
        Chairman Leahy. I thank you all. As one who lives in a
    State bordering Massachusetts and who has probably walked by
    the corner where the bombs went off dozens of times, I have a
    feeling that the expressions here and elsewhere in our
    Government will mean a lot to the people there.
        Senator Sessions.
        Senator Sessions. Thank you. And, of course, I assume we
    will at some point recognize those volunteer firefighters and
    all in Texas who responded to help their community and then----
        Chairman Leahy. I was going to leave that to Senator
    Cornyn.
        Senator Sessions. I know that we will be dealing with that.
        Well, I thought the first panel showed that we had problems
    with ag and low-skilled workers in that portion of the bill,
    and I think the second panel on high-skilled workers indicated
    there are problems there. And I think your testimony indicates
    we have problem here that need to be dealt with.
        I just would ask Dr. Fleming, you know, I do not believe
    there is scriptural basis for the idea that a modern nation
    state cannot have a lawful system of immigration and is somehow
    prohibited from enforcing legitimate laws once they have been
    passed. I really feel strongly about that.
        I would just as a matter of pursuing it a little bit note
    that Nehemiah, when he came back to Judah, asked the king to
    give him letters to the governors beyond the--provinces beyond
    the river that ``I might pass through and come to Judah.'' And
    then he was given that. And he said, ``Then I came to the
    governors of the province beyond the river and gave them the
    king's letters.'' And Moses at Edam, he is in Kaddish, and he
    says, ``We are in Kaddish, a city on the edge of your
    territory,'' he says to the king of Edam. ``Please let us pass
    through your land. We will not pass through a field or vineyard
    or drink water from a well. We will go along the king's
    highway. We will not turn aside from the right hand or to the
    left until we have passed through your territory.''
        ``You shall not pass through,'' he said.
        He asked again. He said, ``You shall not pass through.''
        And so thus, Edam refused to give Israel passage through
    the territory, so Israel turned away from him and did not go
    through the territory.
        So I think this idea that somehow the love statements in
    Leviticus 19 is not the kind of thing that would indicate that
    nations should not have laws. And I think it is not healthy to
    lead little ones astray. Some people have been citing Scripture
    I think pretty loosely, it appears to me.
        And in Genesis, Abraham and Isaac, they had to negotiate
    treaties to sojourn in the territory of and obtain water rights
    from local kings. In Genesis, Joseph requested permission from
    Pharaoh for his family to sojourn in Egypt. And I would note
    that when the phrase ``sojourn'' is used, at least one scholar,
    Dr. Hoffmeier, a professor, says that ``sojourn'' means
    lawfully to be in that area.
        Do you have any--I will give you a chance to respond to
    that.
        Pastor Fleming. Thank you, Senator Sessions, and I so
    appreciate you doing my job for me today. My members would like
    you to come and share with us sometime as well.
        I could not disagree at all with what you have said. I
    completely agree. That is why we have been asking for
    legislation that respects the rule of law, that secures our
    national borders. I wholeheartedly agree with that. And, by the
    way, Dr. Hoffmeier is a personal friend of mine, and so I
    appreciate you quoting him today as well.
        However, that being said, surely if our system currently as
    it is structured were true to those Scriptures that you just
    quoted, we would not have 11 million plus illegal or
    undocumented immigrants in our country with us today. So
    clearly we do not have the system you described.
        Senator Sessions. Well, I would just acknowledge that I
    have said since 2007 we need to deal compassionately with
    people who have been here a long time in this country. They all
    cannot be deported and should not attempt to be deported, and
    so we need to wrestle through all this and try to do it in a
    way that is appropriate.
        You know, I believe Senator Rubio issued a facts check
    today that said that my statement about 30 million people being
    legalized is not accurate. Well, I first would ask all of those
    who support the bill, what is the number that will be legalized
    under this system? The amnesty itself would provide
    legalization for 11 million. The backlog is 4.5. It is an
    accelerated backlog elimination that would add 4.5. According
    to the Los Angeles Times, the future flow will be 50 percent
    above current future flow, at least, and that would be another
    15 million. So over 10, that is around 30, and that does not
    include other chain migration, family migration.
        Mr. Krikorian, do you want to comment on that?
        Mr. Krikorian. Well, I have not done the numbers, but it
    makes sense, and there is one thing----
        Senator Sessions. Has anybody promoted numbers that they
    say it would----
        Mr. Krikorian. No. I mean, that is one of the issues I
    think people have in this, is to get actual numbers. But one
    thing I think you left out that would increase numbers also is
    that this legislation would make unlimited the immediate
    relatives of green card holders as the immediate relatives of
    U.S. citizens are now admitted. And so that would necessarily
    increase numbers as well.
        Senator Sessions. Millions, perhaps?
        Mr. Krikorian. Over time, certainly. Absolutely.
        Senator Sessions. Mr. Kobach, thank you for your work in
    this area over time. I would just note that your comment about
    the hardship definition and some of the other definitions, all
    of us need to listen to that because if you get to the point
    where you do not have clarity in these cases and every case has
    got to be tried now over whether or not there is a hardship
    allegation, I do think, do you not, as a practical lawyer who
    knows how these systems work, that that could be terribly
    destabilizing to the whole legal system and the ability to
    proceed?
        My time is up, so if you----
        Mr. Kobach. I would simply say this: When you have a
    modifier like ``extreme,'' in most courts of law that tells the
    judge, okay, exercise your discretion very carefully here, as
    opposed to just the word ``hardship,'' which is a very open-
    ended term and it invites a lot of leeway, and I think it would
    be, you know, very problematic in our immigration court system.
        Chairman Leahy. What I am going to do is yield now to
    Senator Durbin, who will take the gavel for a bit, but I would
    note, as much as I enjoy being Chairman of Judiciary I just
    want to amend the U.S. Code. I am not trying to amend Genesis
    or any other part of the Bible.
        Senator Sessions. You do not have that power.
        Chairman Leahy. Well, I know. I do not even suggest I do.
    So I appreciate the Bible lesson, but we will stick to the
    U.S.----
        Senator Sessions. Your brother is a priest. I know you
    understand where the ultimately authority lies.
        Chairman Leahy. He does it a lot better than I do.
        Senator Durbin.
        Senator Durbin [presiding]. Thank you very much, Mr.
    Chairman.
        Gaby Pacheco, thank you for being here, and thanks for all
    you have done on behalf of the DREAMers. My staff has asked me
    to read the stories of some more DREAMers. I have done that 54
    times on the floor of the United States Senate. Each one of
    these stories is amazing in its own right. The accomplishments
    of these young people, the fact that they have known no other
    country in their lives and they want to be part of America's
    future, they have extraordinary educational achievements that
    they managed to put together in American schools, schools that
    were open by American taxpayers. So their education has been
    supported by our country. And now with all the skill and
    talent, they are just asking us to give them a chance.
        So, Mr. Kobach, do you think the DREAMers deserve a chance
    to become legal in America?
        Mr. Kobach. Well, that, of course, involves a lot of
    calculations because, you know, we are talking about--for
    example, in the DREAM Act part of the bill, we are talking
    about resources, places. For example, the DREAM Act portion of
    the bill, like many of the DREAM Act we have seen before
    Congress since 2001, says that the current provision against
    giving in-state tuition rates to illegal aliens has to be
    removed as part of the DREAM. And so we are talking about----
        Senator Durbin. So you want to get into--I just want to ask
    a matter of principle. Let us go down to basic values here.
    These young people were brought to America, Gaby at the age of
    8. It was not exactly her decision to come from Ecuador. It was
    her family's decision. And time and again, we are finding cases
    where children were brought in and the parents did not file the
    right papers or overstayed a visa, and the child knew nothing
    about it.
        So getting beyond immigration policy and the specifics,
    which we could talk about for a long time, as a basic matter of
    justice and fairness, do you believe that these young people
    should be penalized for the wrongdoing of their parents?
        Mr. Kobach. And that is exactly where I was going to go to
    that biblical metaphor, that biblical verse. We are not
    supposed to punish the children for the sins of the parents.
    But, similarly, we probably should not reward the children for
    the sins of the parents. I would say treat the children
    neutrally without respect to the sins of the parents. And
    treating them neutrally, I think that would be the most just
    thing to do.
        Senator Durbin. So how would you treat them neutrally?
        Mr. Kobach. I would treat them neutrally by treating them
    the equivalent of other people who hold the same nationality.
    And so, therefore, do not allow them to jump ahead--which is
    what it is--jump ahead of the line by retaining their presence
    in the United States. Allow them to have the same opportunity.
    That might be-include getting rid of the 10-year bar--I think
    that might be a reasonable proposal for DREAMers--and go back
    and get in line with the rest of their countrymen.
        Senator Durbin. Well, you see, we debated that, and it is
    interesting, because eight Senators--four Democrats, four
    Republicans--and some pretty conservative Republicans, I might
    add--basically came to the opposite conclusion. They said what
    you are suggesting is punishment. What you are suggesting is
    that they should be punished and put to the back of the line,
    and they have never done anything wrong.
        I have been at this for 12 years. I have met hundreds,
    maybe thousands of these young people. And to suggest that
    somehow they are guilty, culpable, should pay a price for what
    they did wrong, it just defies basic compassion, which I feel
    is part of this calculation, as well as justice.
        And I would say to you that this notion that we heard in
    the last campaign of self-deport--I think that might have been
    one of your points of view at that time--I mean, overlooking
    the obvious, America will be a stronger Nation when we
    acknowledge who we are. My mother was an immigrant to this
    country, brought here at the age of 2. She was a DREAMer of her
    generation. Her son is now a United States Senator. That is my
    story. That is my family's story. That happens to be America's
    story. She was given a chance to naturalize at the age of 23,
    and she did. And I have got her certificate sitting on the back
    of my desk. I am so proud of it.
        I think America is a little better because Ona Kutkin came
    over on a boat from Lithuania and managed to live here and make
    a life. And you know what? My story is not unique. And what
    happened to her, what was given to her, that opportunity, made
    this the country it is today.
        And I think many people who resist and fight back against
    immigration are ignoring who we are, our birthright as a
    nation. We went through 3 months of debate over this at least,
    24 separate meetings, trying to figure out what was a just and
    fair way to resolve this. But this notion that immigrants are
    somehow negative or bad for America, that is not a fact at all.
    Never has been.
        And I think what we come up with is a fair approach. Can it
    be improved? Sure. I am open to improvement. But when it comes
    right down to Gaby Pacheco and hundreds of thousands just like
    her, Mr. Kobach, she has never known any other country. This is
    her home.
        Mr. Kobach. May I briefly respond.
        Senator Durbin. Of course.
        Mr. Kobach. I do not think it is fair to characterize those
    of us who think we should restore the rule of law as saying we
    are resisting immigration. We are resisting illegal
    immigration, and we are resisting a system where we have
    essentially the national interest of the United States not
    being promoted in deciding who may enter the country, who may
    stay in the country, and the rules for coming in.
        And self-deportation is not some radical idea. It is simply
    the idea that people may comply with the law by their own
    choice. Whenever we have a law enforcement problem, self-
    deterrence is basically the typical solution law enforcement
    adopts; that is, you increase the penalties so that people
    start complying with the law. Self-deportation is something
    that Arizona has proven that if you ratchet up the penalties
    for violating the law, people will choose to leave. And it has
    been proven that they do that.
        Senator Durbin. You were an elected official in Kansas,
    correct
        Mr. Kobach. Correct.
        Senator Durbin. So am I. I am an elected official in
    Illinois. And what we have basically said is ultimately the
    voters have the last word. The voters had the last word on
    self-deportation on November 6th. So we are beyond that now. I
    mean, you can stick with that theory as long as you would like,
    but I think that what we are talking about now is whether
    America is a better country if we have an immigration system
    that brings 11 million people out of the shadows to register
    with this Government so we know who they are, where they are,
    do a criminal background check, or whether we leave them in the
    shadows. I think it is pretty clear. We are a better Nation
    when we have these 11 million people coming forward.
        And for these DREAMers, yes, they are being treated
    differently, given perhaps a better chance toward legalization.
    But it is still not an easy path. Most of them have spent their
    lives in hiding for fear of being deported. And they have
    achieved amazing things despite that.
        So we just come down to this with a different point of
    view, and I am going to stop now because--and I think I have
    the gavel if I go over and retrieve it. Are there other Members
    who would like to make a comment or statement? Who is next?
    Senator Cornyn, please.
        Senator Cornyn. Mr. Chairman, as long as you have the
    gavel, you can go as long as you want.
        I am going to ask Mr. Kobach and Mr. Krikorian to answer
    this question. Is there anything short of removal that you
    would consider not to be amnesty?
        Mr. Krikorian. No. Amnesty means an illegal immigrant gets
    to stay. It is the definition we have always used as far as
    immigration goes, and there is actually an academic literature
    of comparative immigration amnesty----
        Senator Cornyn. I understand what it means.
        Mr. Kobach. Right.
        Senator Cornyn. How about you, Mr. Kobach? Anything short
    of removal is amnesty to you.
        Mr. Kobach. I would argue that declining to remove an
    unlawfully present alien is actually amnesty plus, because you
    are giving, if you will--if you liken it to theft, you are
    giving the person what he has taken, namely, presence in the
    United States. He has taken it unlawfully. So you are not only
    declining to punish, you are allowing the person to have what
    he has taken. You could in theory define amnesty as not
    prosecuting, but this is more than just not prosecuting. This
    is not prosecuting and allowing the person to keep what he has
    unlawfully taken.
        Senator Cornyn. Some have said that the status quo
    represents de facto amnesty. Would you agree with that, Mr.
    Krikorian?
        Mr. Krikorian. The status quo, to the degree that this
    administration, and, frankly, others, have deliberately chosen
    not to enforce the law, that is kind of a de facto amnesty,
    yes. But the only way to resolve that is not necessarily
    through statute but through Executive action.
        Senator Cornyn. Mr. Kobach.
        Mr. Kobach. I would argue that we have more than just a de
    facto amnesty, which, you know, people use the term ``de
    facto'' to describe the situation of facts that we have on the
    ground. But we have more than a de facto amnesty. The DACA
    directive of June 15, 2012, is an Executive directive, an
    order, if you will, that declares that the current provisions
    of U.S. law, specifically 8 U.S.C. 1225, will not be enforced
    and that the officers who are ordered by U.S. law to place
    certain aliens in removal proceedings shall disobey the law.
        So we have got more than a de facto amnesty. We have an
    executive branch that is ignoring the statutes that this
    Congress has written.
        Senator Cornyn. I would like to have Ms. Murguia and Ms.
    Lichter respond to this. There are a number of people,
    including me, who believe that the representations that the
    border will be secure and that we will have an effective system
    of monitoring and addressing visa overstays has been
    adequately--there are those who say it has been adequately
    addressed in this bill. You know especially, Ms. Lichter, that
    since 1996 Congress has said that the executive branch should
    create a system of effectively monitoring visa overstays. Yet
    today, all these years later, 40 percent of illegal immigration
    does not come across the border. It is people coming legally
    and then overstaying.
        So I just ask you, Ms. Murguia and Ms. Lichter, can you
    understand those who have seen this movie before and who have
    said these promises and assurances that this is the last time
    this will ever have to happen because we are going to institute
    a system of border security and enforcing the law against
    people who come in legally but overstay their visa, that has
    never come to pass? Can you appreciate the skepticism that
    people feel when they hear that again? Ms. Lichter, go ahead.
        Ms. Lichter. Sure. Thank you, Senator. I think maybe the
    better way to look at this is to----
        Senator Cornyn. Just look at it my way first, okay?
        [Laughter.]
        Senator Cornyn. Then you can look at it a better way. Can
    you understand the skepticism that----
        Senator Sessions. Judge Cornyn.
        Senator Cornyn [continuing]. Of people who have heard these
    representations before only to find that they did not work as
    advertised?
        Ms. Lichter. Right. And in order to avoid that sense of
    disenchantment with the new method going forward, I would like
    to draw your attention to what the real cause is of the
    overstay or the illegal entry. It is not for lack of
    enforcement. It is not for lack of a tracking system. It is for
    lack of a lawful path for people who wish to change from their
    nonimmigrant status to extend----
        Senator Cornyn. You are kidding me. When you come in on a
    30-day visa, you do not know when your visa expires that it is
    time to go home? And you are saying it is for lack of a path to
    citizenship?
        Ms. Lichter. I did not say it was for lack of a path to
    citizenship. I said it was for lack of legal immigration
    options. What happened----
        Senator Cornyn. We have legal immigration options. You know
    better than most, Ms. Lichter. We naturalize as many as a
    million people a year in this country. We have a path for
    people to function through the legal system. But you are
    telling me that some people have no option but to come in and
    overstay their visa and to melt into the great American
    landscape?
        Ms. Lichter. We have had 3 hours of testimony as to why
    that path is inadequate and does not work. And I believe that
    the architecture that the Gang of Eight has come up with would
    do much to provide an intelligent, common-sense system. And if
    our focus instead shifts to making those pathways achievable
    for low-skilled workers, for high-skilled workers, for family,
    having fairness and due process in our laws, then I think the
    rest of it will actually fall into place. And I do honestly
    believe that because I believe I am the only person on this
    panel that actually practices in this, and I have been doing it
    for nearly two decades. I believe that because I see it every
    single day.
        Senator Cornyn. Ms. Murguia, out of fairness to you, I
    asked a question. Would you care to respond?
        Ms. Murguia. Yes, I would, and I appreciate it. And I do
    understand the perspective, and I think, you know, the fact
    that you have someone representing viewpoints like mine and
    Gaby and Secretary Kobach down at the end, I think we know that
    there are different views on how to get to maybe perhaps the
    same end goal, which is making sure our borders are secure as
    well as making sure that we have a process that is regular,
    orderly, and fair to bring in new immigrants. I get that. And I
    really appreciate the fact that we need to give ourselves this
    space to have this discussion without pointing fingers about
    people's motives.
        Let me say to you that I do believe that Senate bill 744
    includes many painful lessons learned from the past. As you
    know, the 1986 law had a number of issues, and for one thing,
    the legalization program did not cover everyone. So there
    remained a large undocumented population afterwards.
        Second, it did not include changes to legal immigration to
    address our future needs. Both of these omissions I think
    contributed to the growth of the undocumented population since
    that time.
        And I think, third, clearly its enforcement measures were
    not strong enough. But as I had noted in my written testimony,
    the enforcement system we now have in place is by several
    orders of magnitude much stronger than anything in place or
    even contemplated in the 1986 Act.
        By combining a legalization process that does lead to
    citizenship with a modern immigration system and real
    accountability for employers, we will have immigrants that are
    here legally, immigrants in the future will have real channels
    to enter through, and those hired in the future will be here
    legally.
        So our goals are the same, and that is to have an
    immigration system that works and reflects our values as a
    Nation of immigrants and as a Nation of laws. And my favorite
    section from the Bible is the Beatitudes, and I say, ``Blessed
    are the peacemakers,'' and I hope that we all can find peace in
    our common goals around immigration reform.
        Senator Cornyn. Mr. Chairman, may I ask for you to exercise
    your discretion and allow me to ask my constituent one
    question, please?
        I got so involved, Dr. Fleming, with these other witnesses,
    I meant to ask you a question. First of all, welcome.
        Mr. Fleming. Thank you, Senator.
        Senator Cornyn. We are glad you are here. I know you care
    deeply about the people you come in contact with, and I believe
    that justice and fairness and compassion are not incompatible
    with the rule of law. I think it enhances our ability to
    demonstrate justice, fairness, and compassion when we operate
    within a legal framework, and that is certainly what we are
    trying to do here. At least I believe that.
        But there is a provision in this bill that would allow
    somebody who has committed multiple offenses of domestic
    violence, of drunk driving, and of child abuse. It draws the
    line at two. You can do it twice, and you are still eligible.
    But if you do it three times or commit a felony, you are not.
    Does that cause you any concern just in terms of the welfare of
    the victim of that drunk driving, the domestic violence, or
    child abuse?
        Mr. Fleming. Thank you, Senator Cornyn. It is a great
    question. I know a lot of people will be asking that very
    question.
        It does cause me some concern. What we have said throughout
    this conversation is that we are advocating for legal status
    and/or citizenship to those who qualify? I do not believe that
    everyone will qualify or should qualify. I feel woefully
    inadequate to say what the exact and express qualifications
    should be, but I do recognize that is a very important issue.
        I would be uncomfortable with multiple offenses and
    felonies. I think there has to be some line to where we are
    allowing those who are going to be productive, taxpaying,
    contributing to their community, great neighbors, and those who
    either by lack of attention or intention cause us harm. There
    has to be a line, surely.
        Senator Cornyn. Thank you very much.
        Mr. Fleming. Thank you.
        Senator Durbin. Senator Franken.
        Senator Franken. Thank you, Mr. Chairman.
        Before I turn to my questions, I just wanted to say that I
    am really glad to see you here, Dr. Fleming. A lot of
    Minnesotans I know who support immigration reform do so out
    of--see it as an issue of faith.
        At this point, Mr. Chairman, I would like to enter into the
    record a list of three dozen--actually three dozen plus one
    Minnesota faith groups that support immigration reform. If you
    look through this list, you will see Lutherans and Muslims and
    Catholics, Jews, Episcopalians, Methodists, you name it,
    unitarians.
        Senator Durbin. Without objection.
        Senator Franken. Thank you.
        [The list appears as a submission for the record.]
        Senator Franken. A lot of Minnesotans do not just think
    that this is a smart thing to do. They think that this is the
    morally right thing to do.
        Ms. Lichter, the bill we are debating will make E-Verify
    mandatory for almost all employers within 5 years.
    Unfortunately, the last independent audit of the system
    revealed that it wrongly rejected a legal worker about one out
    of every 140 times. It does not sound that high, but it would
    not be acceptable for you, the credit card errors or starting
    your car. And I am worried about how this is going to affect
    Minnesota small businesses, a small business that does not have
    a big HR department or the human resources person may be their
    accountant, may man the front desk and may be the spouse of the
    small business owner.
        In February, the American Immigration Lawyers Association
    issued a press release highlighting these problems and saying
    that any mandatory employment verification system should
    ``protect the interests of small businesses and provide
    mechanisms to suspend the rollout of the employment
    verification program if patterns of errors develop.''
        Can you tell us why AILA made these recommendations and if
    AILA continues to stand by them?
        Ms. Lichter. Thank you, Senator. Yes, we do continue to
    stand by those recommendations, and it is simply because, as
    you note, this is not an issue just for the employer. It is for
    the entire workforce. It could be an issue for that person who
    is applying for a job, and simply because the paperwork does
    not clear, you have just gone on to the next individual. And
    now that individual is out there hitting the streets looking
    for another job.
        It does sound like a small percentage, but we are talking
    about tends of thousands of people who are wrongly, tentatively
    nonconfirmed, been told that they are not eligible to go
    forward with employment.
        In terms of what the best metrics would be, I think we have
    a good chance here to look at slowing this down, potentially,
    to see if there are ways to evaluate whether we are having a
    high number of errors. There needs to be some method for
    reporting and correcting those. And let us not lose sight of
    the fact that this sort of additional regulation facing small
    business has a disproportionate effect. It literally costs a
    small business twice or nearly three times as much as it does a
    larger corporation to institute E-Verify and go through these
    checks.
        Senator Franken. Thank you.
        Ms. Murguia, in 2007, the National Council of La Raza
    released a powerful study on the impact of immigration
    enforcement action on children. Your study revealed that
    immigration raids often left children abandoned without anyone
    to care for them. Let me quote the study's description of the
    aftermath of two raids.
        ``In one case, a youth spent several days alone because
    both parents were arrested in the raid. In one household, three
    adolescents were left to fend for themselves after both parents
    were detained. Neighbors provided occasional supervision.
    People only found out about those cases because the youths
    subsequently showed up at food banks to ask for assistance.
    Another adolescent spent months in the care of a pastor of a
    local church where his parents worshipped.''
        There have been cases like this all across the country.
    After a 2006 raid in Worthington, Minnesota, a second grader
    came home from school to find his mother and father missing and
    his 2-year-old brother alone. For the next week, this child
    stayed home from school to take care of his brother.
        After a 2008 raid in Postville, Iowa, a local newspaper
    reported that ``children went as long as 72 hours without
    seeing their parents, not knowing or understanding where they
    were.''
        Thankfully the days of massive immigration raids are over,
    but in the past 2 years, over 200,000 parents of citizen
    children were deported. I have a bill, Ms. Murguia, that I plan
    to offer as an amendment to the immigration bill that we are
    now debating. It will institute some basic humanitarian
    protections for children during immigration enforcement actions
    and during the detention of their parents.
        Ms. Murguia, do you think we need to do more to protect our
    children in the course of immigration enforcement actions?
        Ms. Murguia. I so, and I appreciate you highlighting that
    report, which I think was eye-opening for many people because I
    think when you hear about the impact of these deportations and
    as a result of our broken immigration system, we are not
    talking about individuals, we are not even talking about just
    about families. We are talking about communities that really
    are devastated by this broken system.
        But the fact that I could not even articulate for you the
    pain and the suffering that has occurred across this country as
    a result of those raids and that continues to exist as long as
    we have these kinds of deportations in place is really for me
    not consistent with the values that we have as Americans in
    this country. There is a better way for us to do it. This bill,
    this compromise, offers us a path to get to that kind of a more
    rational and sane and humane resolution on this. So I
    appreciate you highlighting that there is real pain being
    inflicted, and these are not just statistics that we are
    talking about. There are families that have been devastated,
    communities that have been devastated, and to their credit,
    many people in the faith-based community across the board have
    stepped up to fill in where we ought to understand that there
    are collateral costs that are to be paid in this.
        Senator Franken. Thank you. Thank you so much to all of
    you.
        Mr. Chairman, thank you.
        Senator Durbin. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman, and thanks to each of
    you witnesses for joining us today.
        As we started this discussion, I was reminded of the words
    of Stephen Covey, a prominent Utahan and author of ``The Seven
    Habits of Highly Effective People,'' who used to tell people to
    think, ``Win-win.'' That was followed up on by a guy named
    Michael Scott, a character on a TV sitcom called ``The
    Office,'' who told his employees to think, ``Win-win-win.'' So
    I want to thank Ms. Lichter for telling us to think, ``Win-win-
    win-win,'' which sounds even better, and I hope we can get to
    that point, and I think that is really the point of this
    discussion, how we can find a way to make a difficult situation
    better. And I hope that through this legislation or some
    modified form of it, we can get to a point where we improve our
    legal immigration system. We are Nation of immigrants. We
    always have been. I hope and pray that we always will be.
        For that to work effectively, we have got to have an
    effective front door through which immigrants to this country
    can be welcomed into this country under the terms of our laws.
        There is a lot in this bill to be praised in this regard.
    There are some things that concern me, and I would like to
    discuss a couple of those with Mr. Kobach for a moment.
        A couple of things that you mentioned have got my
    attention, one of them dealing with your assertion that the
    Department of Homeland Security may have been shaping some of
    the removal numbers. Can you speak more of the suspect activity
    of sort of changing--I think you said they are changing the
    denominator such that the overall ratio can be manipulated.
        Mr. Kobach. Two points. One is that you are kind of putting
    them in an impossible position if you say calculate 90
    percent--if you are at 90-percent success, because you can
    never know the denominator of people that we missed because,
    almost by definition, we missed them and, therefore, we
    probably did not have surveillance of them. So it is almost
    impossible.
        And so my second point to that was, well, if you are going
    to force them to come up with this number, this effectiveness
    ratio, then should we trust them to do so? And I would say
    based on the reporting of the last 2 years, there is serious
    reason to consider perhaps not, and that is, we have been told
    repeatedly in the last 2 years that fiscal year 2012 saw a
    record number, 410,000 approximately, of removals from the
    United States. Well, it turns out that about 86,000 of that
    number we have learned because of evidence disclosed in a
    Federal judicial proceeding, 86,000 fall under the ATEP
    program, and that is, these are aliens who previously would
    have been--they were apprehended by the Border Patrol.
    Previously they would have been turned around right at the
    border and called a ``voluntary return.'' Voluntary returns
    were never counted as removals. But since 2011, what they have
    been doing is taking these individuals and, for a good reason,
    they have been saying, well, let us transport them a few
    hundred miles down the border and then return them there so
    that they have a harder time reconnecting with a smuggling
    network; but we are going to count that as a removal, because
    ICE touched the alien for a few hours or maybe 24 hours during
    the process of helping to transport him.
        And so now we have got what are basically voluntary returns
    with a transit in place being counted as removals, and that
    inflates the statistics to 410,000. So, really, removals are
    way down. ICE ERO, Enforcement Removal Operations, the core
    removal unit, has seen a massive decrease in removals over the
    last 4 years.
        Senator Lee. So part of the problem with this is not
    necessarily that you should not be able to count that figure,
    because those are resulting from the efforts of DHS. It is the
    fact that it was a change compared to prior----
        Mr. Kobach. Right. Those never would have been counted as
    removals before.
        Senator Lee. Okay.
        Mr. Kobach. And so one way to look at it is, well,
    calculate all of the alien turnarounds, removals, and
    everything, and look at that, ICE and Border Patrol combined
    over the past few years, and you see a decrease.
        Now, some will say, oh, well, that decrease is because
    fewer people are attempting to come in, that is why Border
    Patrol numbers are down. But the point being the numbers are
    being manipulated in a misleading manner. And the President
    himself even used the word ``misleading'' when he was talking
    to a group of Hispanic reporters about these removal numbers,
    and he said, well, it is not really--it is misleading because
    it is not really like old removals, what we would count them
    as.
        So my point would be, if you are going to have metrics and
    you are going to have triggers, then pick something that is a
    very hard, indisputable number, maybe miles of fence
    constructed or specific numbers, as opposed to these very fuzzy
    percentages and success factors that this bill contemplates.
        Senator Lee. And you think it is possible to identify
    objective, verifiable metrics that could do that? And so if you
    were to improve this bill, you would propose something that is
    less subjective?
        Mr. Kobach. Absolutely. But there are not that many
    things--one is miles of fence. That is something that is
    verifiable. But when you start talking about operational
    control, that is another one of those fuzzy factors that it is
    so virtually impossible to define.
        Senator Lee. Do they really call those ``voluntary
    removals,'' by the way?
        Mr. Kobach. Voluntary returns. Yes, they call them
    ``voluntary returns.''
        Senator Lee. I suspect that those people who were actually
    the subject of such returns would not think of them as
    voluntary.
        Mr. Kobach. They probably would not. They were told return
    or else. But, yes, ``voluntary'' might be a misnomer.
        Senator Lee. Okay. Perhaps in a subsequent round we can get
    back to the casual, sporadic, irregular, or intermittent
    standard, but my time has expired for now, so thank you.
        Thank you, Mr. Chairman.
        Senator Schumer [presiding]. Senator Coons.
        Senator Coons. Thank you, Mr. Chairman. I want to start by
    just thanking the broad and bipartisan group of eight Senators
    who have worked so hard and over many months, and obviously all
    the different groups and individuals who have brought forward
    their stories and their views to help shape this bill, and the
    staff who have worked so hard on it. I think that this bill is
    a vital, an important first step towards moving our country
    away from our current broken, outdated, and in many ways
    unequal and unjust system to one that will work, and work in a
    way that comports with American values.
        There are many important aspects of this bill to support
    that are encouraging: the resolution of the concerns of
    DREAMers, an earned path to citizenship, dramatically reducing
    backlogs, dealing more fairly with those seeking refugees--
    refugees seeking asylum. And coming with a system that more
    successfully keeps highly talented individuals who have been
    educated in this country here to contribute to our economy.
        Like others who have spoken before me, I think there is
    still work to be done: additional due process protections,
    ensuring that all families, including LGBT families, are
    equally valued in this bill, and an emphasis on investing in
    education for U.S. nationals to address the skills gap over the
    long term. I think there are a number of areas we can work on
    together.
        And I appreciate Chairman Leahy's commitment to having an
    open and transparent process and to the length at which this
    panel has testified today.
        Ms. Pacheco, if I might first just thank you for your
    story, your testimony. This is the second time I have heard you
    testify to this Committee, and it is a reminder of the
    individual stories that make up the broad fabric of the
    concerns that we are dealing with.
        Ms. Lichter, if I might, I am interested in hearing you
    speak specifically to the need for appointed counsel or for an
    expanded legal orientation program. I was struck in a previous
    hearing I chaired to learn that more than 80 percent of
    detainees are unrepresented in any way, even if they are
    children, if they are mentally incompetent, if they are asylum
    seekers, and that, frankly, the absence of counsel for the
    overwhelming majority of non-citizens who are too poor or
    vulnerable to get them bogs the system down and actually makes
    it harder for immigration judges to do their job. And I would
    also be interested if you would speak concretely to your
    experience representing individuals with long past minor
    criminal offenses that have been deemed ``aggravated felonies''
    for the limited purpose of the immigration law. If you can
    speak to both of those, I would appreciate it.
        Ms. Lichter. Thank you, Senator Coons, and you have hit
    upon probably the dirtiest little secret of our immigration
    proceedings, which is that this is one of the most complicated
    areas of law I think one can practice, and it is a forum in
    which we willingly throw people that do not have a
    sophisticated legal background. They might not even speak
    English. Most of them, as you noted, especially detained cases,
    do not have legal counsel.
        The existence recently of legal orientation programs, where
    we advise people as to in general very broad terms, what they
    are facing, why, for example, they are detained, what avenues
    for relief there might be, have been extremely successful not
    only in promoting what would be, I think, important to many in
    the fair interest of justice and fair administration of the
    immigration laws, but there is an efficiency here as well. If
    we can explain to an individual that because of their lack of
    ties to the United States or because of their history that they
    do simply not have any relief in front of the immigration
    court, that case can be moved on very quickly. And, in fact,
    the legal orientation of programs themselves have been
    responsible for a significant amount of savings in terms of
    detained case processing and case processing in general.
        It is clear also in this context that we have individuals
    coming to removal proceedings only because they have old minor
    crimes. And when we hear the words ``aggravated felony,'' I
    think many of us think, well, that sounds bad, it is aggravated
    and it is a felony. But what that really means in immigration
    is something else. It can involve something for which the
    individual never spent a day in jail, where there was not
    actually even any physical harm. It could be something that is
    20, 30, 40 years old. I have had people facing removal
    proceedings for crimes that were that long in the past. And,
    unfortunately, the system that we have currently does not
    provide almost any path out of removal for those individuals,
    but for the very, very extreme cases where they might be facing
    persecution if they were returned home.
        Senator Coons. Thank you, Ms. Lichter.
        Ms. Murguia, if I might, you have spoken about the
    potential economic benefits as well as the moral imperative to
    establish an earned path to citizenship and the possible
    benefit to our economy of having 11 million people be able to
    fully participate in our economy. If you would, just talk a
    little bit further about that and about this bill as a
    compromise. Can you help us understand what would happen on
    these fronts if the hurdles to earned legal status are too
    high, and for a significant number of those currently here in
    undocumented status, what would the consequences be?
        Ms. Murguia. Well, sure, and I will just reiterate a piece
    on the economic impact, and that is that even on Friday this
    Committee heard that there would be an overall net gain to our
    economy by moving forward with a comprehensive immigration
    reform bill to the tune of $1.5 trillion to the U.S. GDP over a
    decade. And we know that, in addition, there would be billions
    added in terms of earned wages by many. So we do see this as
    net gain.
        I will tell you that as we look at the legalization program
    right now--and, again, we see this path to citizenship and
    legalization that has been put forward there--I think for us
    the fact that we can build on that as a way to move forward is
    really important, because it is essential. What I mentioned
    earlier was that we do have some questions about the length
    and, again, the costliness of--the high cost, perhaps, with the
    fees and provisions there. And I think what we want to make
    sure we are doing is that we are not undermining our very goal
    of achieving legalization and citizenship by creating some of
    these barriers, which could be the length of time or could be
    the fees. There will be several fees. And, in fact, we know
    immigrants want to learn English, and if we are going to have
    the standards for them to learn English, we just need to make
    sure those supports are there for them to be able to have
    access to English classes and to the citizenship classes, which
    in the past has been a problem. But we are encouraged by what
    we see here. But if all of those pieces are not in place and if
    there is not attention to the potentially high cost and the
    length of time, I think we could undermine our very goal of
    seeing that citizenship become a reality.
        Senator Coons. Thank you, Ms. Murguia.
        Thank you.
        Senator Schumer. Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman. And I want to
    first join in thanking Senator Schumer and others who have
    participated in the Group of Eight--I hesitate to call them a
    ``gang''--that have produced such a very promising and
    important and really historic consensus solution to a topic
    that I think is probably the most important--among the most
    important that we face today in the United States and will
    determine the America of our children and our grandchildren.
    And I will be very proud to vote for immigration reform. I do
    not know that it will be exactly the bill that has been
    proposed, and I want to thank this panel and others that have
    been here before and will be here after for making the
    suggestions that they do. But I think we can be a better
    America, juster, freer, and more productive, if we bring those
    11 million people out of the shadows and do the background
    checks. We may figure out better ways to do them. And I am a
    law enforcement guy. I believe that background checks can
    always be improved. But those background checks will make us
    safer. And enlisting and recruiting those 11 million people in
    a path to earned citizenship I think will be good for them.
        And I do not know, Mr. Krikorian or Secretary Kobach,
    whether you have spent a lot of time with the DREAMers, but I
    sort of think the DREAMers are ground zero. They are the
    basic--you know, who could be against giving these people
    citizenship? I have spent a lot of time with them. I have come
    to know them. I try to go to the floor whenever I can with
    pictures of them and their stories so that people understand
    who they are.
        Let me begin, Mr. Kobach, Secretary of State Kobach, by
    asking: What is your position on people who are born here whose
    parents are here illegally? Should they be U.S. citizens?
        Mr. Kobach. Well, under current Federal law and under
    current practice, long practice that the executive branch has
    had for many administrations, they are treated as U.S.
    citizens.
        Senator Blumenthal. And I take it you would oppose that
    policy?
        Mr. Kobach. Well, there have been a number of bills
    introduced in Congress, and some of them I think have some
    merit, that would say that, for example--I am remembering
    Nathan Deal as the author of one of these that would say that
    if a person is born and at least one of his parent is either a
    green card holder or a U.S. citizen, that would be truer to the
    intent of what the writers of the 14th Amendment had that the
    individual, to gain U.S. citizenship----
        Senator Blumenthal. But do you not in your opposition to
    DREAMers having eventually this expedited path to citizenship
    have to oppose anybody who is born here whose parents are here
    illegally being denied citizenship and having to go to the
    back----
        Mr. Kobach. No, you do not----
        Senator Blumenthal [continuing]. Because they are--they are
    really no different in terms of their intent, their basic
    circumstances, than someone who is brought here by their
    parents without any choice on their part.
        Mr. Kobach. No, I do not think you do have to. One does not
    necessarily imply the other. There are a lot of reasons in the
    law why the current way we define natural born citizenship is
    simple and easy, so we can know instantly if a person is a U.S.
    citizen based on the place of their birth. And so there are
    lots of balances on both sides of that question, and so I am
    simply saying that proposals in Congress to, you know, define
    that more narrowly, who would have access to instant natural
    born citizenship, they may be more consistent with the Framers
    of the 14th Amendment, what they meant by that, but there are
    also other costs, legally. So I do not think one necessarily
    implies the other.
        You know, looking at the green----
        Senator Blumenthal. Because the criteria are too complex if
    they are brought here?
        Mr. Kobach. Well, you then have this problem of determining
    citizenship is much more difficult than if you have to obtain
    other verifications.
        Senator Blumenthal. Well, let me just suggest to you,
    because my time will shortly expire, that I think the benefits
    of setting definitions that serve the national interest of
    having those people who are brought here without any choice of
    their own, much like they are born here without choosing to be,
    are very, very much the same. And the DREAMers who are
    contributing to this country, are in school, serving in the
    military, are in, if anything, in terms of equity, a better
    position in deserving that kind of treatment of being given a
    path to expedited citizenship.
        Mr. Kobach. One very brief response. Past versions of the
    DREAM Act have included an upper age limit, and, you know, the
    idea is if you get--the closer you get to somebody who is
    actually a minor, you can say, well, that person is not
    responsible for his or her actions, I think we would all agree.
    But this bill has no upper age limit, so a person who is 40
    could say, ``Well, I am a DREAMer,'' and, of course, he does
    not have to prove that he was in the--there is no documentary--
    --
        Senator Blumenthal. With an age limit, you would not oppose
    it?
        Mr. Kobach. No, I think I would still oppose it, but my
    point is that this one does not have any age limit, and so it
    makes it less tolerable, you know, the more open-ended it is.
    And so I think, you know, people will fall on different places
    on the spectrum, but I think most people would agree that if
    you do not put an upper age limit on it, that is extremely
    problematic.
        Senator Blumenthal. Thank you.
        Thank you, Mr. Chairman.
        Senator Schumer. Thank you, and I guess I will just ask one
    question here since I have not had a chance. I take it,
    Senators Cornyn and Lee, you have had the opportunity to ask
    this panel questions. Yes, okay.
        My one question is to Mr. Krikorian. The organization you
    are executive director of, that is called the Center for
    Immigration Studies. I just want to clarify. You advocate lower
    levels for both illegal and legal immigration. Is that correct?
        Mr. Krikorian. Well, ideally no illegal immigration, and
    lower overall immigration, yes.
        Senator Schumer. Okay. But you would want the legal level
    to be lowered as well?
        Mr. Krikorian. Yes.
        Senator Schumer. Okay. So when some on the other side say I
    am not for any illegal immigration but I want to have more
    legal immigration, that would not be your position?
        Mr. Krikorian. No. But the first priority has to be to
    regain control of the system, because if we do not enforce the
    laws, it does not matter what the laws are. So in a sense, it
    is almost a second priority issue. It is an important issue,
    but it has to come after we regain control.
        Senator Schumer. You may not think we have done it
    effectively enough, but that is our goal as well, to prevent--I
    have always said Americans--and this disagrees with the second
    proposition, but Americans will be fair and common sense
    towards legal immigration and the 11 million who are here in
    the shadows, provided they believe that there will not be
    future waves of illegal immigration.
        Mr. Krikorian. I actually agree with that.
        Senator Schumer. Yes, and we attempt to do that in our
    bill. You obviously think we do not meet the mark, but that is
    okay.
        All right. With that, then, let me call up the next panel
    and thank this panel for their comments and expertise. I thank
    my colleagues for their good questions, and we will move on to
    the next panel.
        [Pause.]
        Chairman Leahy [presiding]. Thank you. Everybody here we
    are going to have is on this list:
        Mark Shurtleff, Bill Vidal, Janice Kephart, Chris Crane,
    Steven Camarota, and Grover Norquist.
        The first witness will be Mart Shurtleff, who served three
    terms as Utah Attorney General. He is currently a partner at
    Troutman Sanders, a Washington, DC-based law firm, and first I
    do want to thank again Senator Schumer, who has not only spent
    so much time on this but has also filled in to chair it, and
    Senator Durbin, also part of the so-called Gang of Eight, who
    has been chairing in my absence. Unfortunately, like everybody
    here, we all sit on so many different committees, and they all
    seem to be meeting at the same time. So I appreciate that.
        Mr. Shurtleff, you go ahead.

    STATEMENT OF MARK L. SHURTLEFF, PARTNER, TROUTMAN SANDERS LLP,
    AND FORMER ATTORNEY GENERAL FOR THE STATE OF UTAH, WASHINGTON,
                                   DC

        Mr. Shurtleff. Thank you, Mr. Chairman and Members of the
    Committee. It is an honor to be here today in these historic
    hearings.
        I am very pleased to see that there are four former
    Attorneys General who sit on this Committee, and two of my
    mentors, frankly, Senator Blumenthal and Senator Cornyn, a few
    years back when I first became Attorney General. It is a
    pleasure to be with you today.
        Beginning with my service as a prosecutor in the United
    States Navy right out of law school up until just leaving
    office as Attorney General a few short months ago, I have
    dedicated and committed my life to public safety and to law
    enforcement, and I am very, very thankful for the opportunity
    today to speak on behalf of the criminal justice system on the
    issue of comprehensive immigration reform.
        I am also a student and an author of history, and I love
    what the Founders said when they wanted to form a more perfect
    union. The first two things they wanted to do were to establish
    justice, which was obviously all about equal access, equal
    opportunity, equal treatment under the law; and to ensure
    domestic tranquility--both of what law enforcement and the
    criminal justice system are all about. And I believe that is
    what this proposed Senate bill 744 does.
        Having been a long time also a Republican advocate for
    comprehensive reform of America's immigration system, I applaud
    the sponsors, I applaud this Committee for moving so quickly
    with the strong bipartisan purpose in holding these hearings
    and moving forward on this.
        From my experience on the ground at the State and local
    level dealing with the impact of a broken system--in fact, that
    is where it is felt, at the local and community level, where
    law enforcement and public safety address these interests. It
    is not only a moral imperative of this Committee and of this
    Senate and of this country to move forward with appropriate
    reform, but I think it also demonstrates what is best about
    America, and that is the ability to pull together for the good
    of the whole--and not the least of which is to enhance national
    security and local public safety. I believe that not just the
    very important provisions about increased border security do
    that, but the entirety of the bill is about fixing a system in
    order to reduce illegal immigration, so that by modernizing our
    system and making legality and accountability our top priority,
    our Government can take control and make immigration once again
    work for America.
        I am very pleased, Mr. Chairman, if I could, to be able to
    introduce two letters and ask you that you would introduce
    them. They have already been sent to the Committee. One is an
    April 15th letter. It is the official position of the National
    Association of Attorneys General. Having had 36 signers, it
    becomes the official position of the National Association in
    support of comprehensive reform.
        I am also very pleased to have worked with a couple of my
    former colleagues, the former Republican and Democratic
    Attorneys General of Arizona, Grant Woods and Terry Goddard,
    and 76 other former Attorneys General--my predecessor, Jan
    Graham, a Democrat--a bipartisan letter dated April 21st, also
    in support of this comprehensive immigration reform.
        Chairman Leahy. They will be included in the record.
        Mr. Shurtleff. Thank you.
        [The letters appear as submissions for the record.]
        Mr. Shurtleff. Now, beginning in 2010, as Arizona 1070
    passed and the States are trying to respond to the lack of
    comprehensive reform by Congress, the State of Utah, in
    particular law enforcement in the State of Utah, was very
    concerned about the huge negative public safety implications of
    State-by-State, enforcement-only, drive-them-out self-
    deportation-type laws. And so we in Utah knew that that was
    coming to Utah, and we wanted to try and do something
    different. We knew we had to do more than just say no to a
    1070-type law. But we needed to get together with other
    important groups, and in this case law enforcement got together
    with those who carry Bibles, members of the faith communities,
    as well as chambers of commerce and business leaders and others
    who knew the terrible negative and the terrible community--
    family and community negative impacts of these State-by-State
    law enforcement measures to oppose 1070 and did something
    extraordinary in Utah. We came together and passed something
    called the Utah Compact, which we felt helped support a
    different approach in the State of Utah, to do things like a
    guest worker program and some other issues towards
    comprehensive reform and to oppose these negative aspects.
        You know, in Utah, by the time 1070 passed, we decided to
    focus our law enforcement efforts on going after the true
    criminal--what we call ``criminal aliens,'' those who are in
    our country illegally to commit other crimes--drugs, guns,
    human trafficking, and all these other things. And, you know,
    we found that 90-plus percent of our confidential informants
    were otherwise undocumented, otherwise law-abiding members of
    our community. And we understood that by making our law
    enforcement officers into ICE agents would terribly impact our
    ability to work together as a cohesive community with
    undocumented residents to go after the worst of the worst.
        And so we brought those groups together. Our very brave, I
    believe, Republican majority in the House and Senate in Utah
    passed comprehensive reform. They were threatened. They were
    told by some of the groups actually who have been on these
    panels today that they would be kicked out of office at
    Republican conventions and primaries. The truth of the matter
    was they stepped up and did the right thing, and every one of
    those brave, in our case Republican legislators were re-
    elected. They did the right thing for the right reason, and the
    people of Utah recognized that, and I believe the people in
    this country will do so as well.
        Now, obviously border security is very important, and there
    is much to be said about what this bill does. But our point is
    that we believe in law enforcement that the best defense is a
    strong offense, and there are so many provisions in this bill
    that will encourage--or discourage illegal immigration that we
    create the first choice in those who want to come to this
    country to work, to benefit their own lives or to benefit this
    great country, and that is to choose a pathway that is correct
    and legal. So all those other provisions in this law are those
    that help, in addition to securing our borders, in addition to
    those provisions with regard to a more--a stronger border.
        Thank you very much.
        [The prepared statement of Mr. Shurtleff appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        Bill Vidal, former mayor of Denver, Colorado, currently
    serves as the president and CEO of the Hispanic Chamber of
    Commerce of Metro Denver.
        Good to have you here, Mr. Mayor.

    STATEMENT OF HON. GUILLERMO ``BILL'' VIDAL, PRESIDENT AND CHIEF
       EXECUTIVE OFFICER, HISPANIC CHAMBER OF COMMERCE OF METRO
              DENVER, AND FORMER MAYOR OF DENVER, COLORADO

        Mr. Vidal. Thank you, Mr. Chairman, Members of the
    Committee. My name is Guillermo Vidal--I am also known as
    ``Bill''--and I am here to lend support to the Border Security,
    Economic Opportunity, and Immigration Modernization Act of
    2013.
        Before I go on, I know as Coloradans we send our prayers
    and support to our neighbors in Texas and Massachusetts, and in
    solidarity, we stand with you as Americans as you try to make a
    better day for your communities.
        I am the president and CEO of the Hispanic Chamber of
    Commerce of Metro Denver, an organization of over 2,000
    business members. And although I represent the business
    community today, I also bring over 36 years of experience as a
    public servant that culminated with my service as the 44th and
    first foreign-born mayor of the city and county of Denver.
        I am a proud American, but I am also a Cuban immigrant who,
    in 1961, at the tender age of 10, was sent by my parents to the
    United States with my two brothers as part of a program called
    Operation Peter Pan that sent 14,000 Cuban children to this
    country unaccompanied by their parents to escape from Castro's
    Cuba.
        For this reason, my testimony today is rooted in everything
    that I am, everything that I have, and everything that I have
    ever represented, that was a direct result of the door I was
    able to walk through when I first stepped onto American soil.
        My personal story represents two great truths about this
    country:
        First, that anyone, regardless of the most humble
    beginnings, can become anything they set their mind to, like
    the mayor of a large city or perhaps even greater.
        Fifty-two years ago, I arrived in this country parentless
    and was sent to live in an orphanage in Pueblo, Colorado. Every
    day I woke up not knowing what suffering awaited me. Many
    nights I cried myself to sleep and asked a merciful God to take
    my life and spare me from the great sorrow I was experiencing.
        Yet here I am today in this great hall in front of you, the
    Senate Judiciary Committee. It is a wonderful testimony to this
    country.
        The second truth that my story represents is that
    immigrants make positive contributions to the success of this
    country daily, especially when they can live out of the
    shadows, as I have been able to do.
        Did you know that over 40 percent of Fortune 500 companies
    were started by immigrants and their children?
        Immigrants built America. We came escaping the desperation
    of poverty or to free ourselves from oppressive regimes that
    violated our human rights. We came in search of education and
    opportunity.
        We chose a new destiny, the United States of America, a
    beacon of hope and promise of a brighter future, a place where
    we can live in freedom and contribute to the success of our
    families and our communities.
        Unfortunately, over the years, indecisiveness and lack of
    action on comprehensive immigration reform has resulted in a
    dysfunctional system that, I believe, has confiscated the
    respect we once held for immigrants and replaced it with a fear
    and ignorance that has dehumanized these individuals to the
    point that they are looked down upon as human throwaways.
        Now, there are many business reasons to improve our system
    and why the chamber and I are encouraged by the bipartisan
    effort that emerged to craft this legislation. But after all my
    years in government developing public policy, I know that no
    legislation will ever be perfect enough to satisfy every nuance
    from all political sides.
        But hopefully we can agree on one thing. Fixing our
    immigration system will contribute to the greater good of our
    country by: securing our borders and providing a safe, fair,
    and orderly process into this Nation; giving a clear set of
    rules and realistic timeline for future immigrants to live and
    work here; providing legal status and a path to citizenship to
    undocumented immigrants already here so that they may openly
    contribute to our society; keeping families together; providing
    immigrant children who came here following the will of their
    parents a stable home and their own opportunity at the American
    Dream.
        This comprehensive immigration reform will bring people out
    of the shadows, which is a good thing, to: provide a skilled
    and dedicated workforce that will grow our economy; invite
    entrepreneurialism and innovation that will create more
    businesses and jobs; bring in new revenues in the form of taxes
    that will help us run our country and strengthen our
    government; bring out into the open a new group of consumers
    that will spur new business growth.
        My parents made an unfathomably courageous sacrifice in
    sending their children to this country, and I am better for it.
    My life has been filled with hope, opportunity, meaning, and
    purpose. I am fulfilling their American Dream for me. But
    although it was not perfect at the time, the America I was sent
    to as a child would never have tolerated the things I have seen
    as mayor of a large city where many immigrants must live in
    fear of being deported or being separated from their families,
    or having their wages stolen by a deceitful employer, or having
    no legal recourse when crimes are committed against them.
        I ask you to support comprehensive immigration reform. Let
    us brighten that light that America has always proudly
    displayed for the rest of the world.
        Thank you, and I will be happy to answer questions when the
    time comes.
        [The prepared statement of Mr. Vidal appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        The next witness is Janice Kephart, former counsel of the
    September 11 Commission and a principal of 9/11 Security
    Solutions.
        Ms. Kephart.

             STATEMENT OF JANICE L. KEPHART, FORMER BORDER
        COUNSEL, 9/11 COMMISSION, AND PRINCIPAL, 9/11 SECURITY
                       SOLUTIONS, WASHINGTON, DC

        Ms. Kephart. Chairman Leahy, Members, thank you so much for
    having me here today. I appreciate very much this Committee's
    continued interest in reform and securing our borders and
    protecting our national security. I further appreciate being
    back as an alum of the Committee I was so privileged to staff.
        I begin by putting the bill in context of both the illegal
    border problem and issues with legal immigration processing.
        On the legal immigration side, in light of the Boston
    Marathon terrorist attack, we were reminded once more that
    border security is indeed essential to national security.
    Historically, the 1986 amnesty program was fraudulently used
    five times by terrorists in attempts to establish residency.
    Three of five succeeded in attaining the benefit, but the key
    for each of them was that simply applying for the benefit
    allowed them to embed long enough to commit the terrorist act.
        The effect of today's bill unfortunately will not be that
    much different than the 1986 bill. Why? Two recent examples of
    the immigration system serving up immigration benefits to
    terrorists show the system is not much better now at discerning
    terrorists than it was in 1986.
        First, Boston Marathon terrorist 19-year-old Tsarnaev just
    received his naturalization on September 11th of this past
    year. Was there really no way to learn of his terrorist
    leanings just a few months ago?
        Less well known, a Syrian known deeply affiliated with the
    9/11 hijackers and assassinated Yemen's al Qaeda leader Al-
    Awlaki was recently granted asylum on his third attempt,
    despite Federal law enforcement reopening the case.
        Second, the illegal problem is big. The southwest border is
    far from secure. Over both the Texas and Arizona borders, we
    are seeing a huge surge in illegal crossings, with the Texas
    Border Patrol saying it is looking at tent cities to deal with
    the onslaught, and central Arizona witnessing a 494-percent
    increase in illegal crossings from August of last year to
    November.
        Here is the issue: There is no way that illegal entrants
    who have never encountered our immigration or criminal system
    can be vetted as to who they say they are. And with 10,000 to
    20,000 foreign-born terrorists that Federal law enforcement
    know reside in the United States, that creates a serious
    concern for more terrorists, using the compassion that we have
    for the DREAMers, to embed here illegally using the
    legalization in this bill.
        There are problems with the border security triggers as
    well. Overall, the concept of a comprehensive southern border
    strategy is really useful, but since the Homeland Security
    Secretary is not really required to assure border security,
    just state that it exists, that does not really help us assure
    that our borders are indeed more secure.
        The metric used in the bill to determine a 90-percent
    effectiveness rate depends on a 100-percent detection rate of
    apprehensions and turnbacks, which is not even close to being
    able to occur today. If there is not a 100-percent detection,
    then the 90-percent effectiveness rate set forth in the metric
    is going to be inaccurate.
        So how would a 100-percent detection rate be best achieved?
    We are not really told in the bill at all. And, unfortunately,
    that makes the metric fail.
        Moreover, the metric only applies to three of nine border
    sectors. That is an open invitation for smugglers to realign
    with the new metric and use whatever other six sectors are not
    considered high risk.
        The bill's version of a mandatory E-Verify holds no
    consequences for illegal aliens who fail E-Verify. Moreover, E-
    Verify's construct adds three more levels of review to a non-
    confirmation, culminating in an alien receiving four
    opportunities to get authorized. The practical result is that
    this appellate process for the alien creates a really difficult
    atmosphere for the employer to terminate an employee even when
    the grounds for authorization do not exist.
        In terms of the exit system requirement, this Nation most
    certainly needs to fulfill the mandate to complete a
    comprehensive exit system that includes air, land, and sea
    ports of entry. However, S. 744's exit component fails to
    include the largest volume of crossings, which is at land
    borders. In addition, the exit component is unnecessary for two
    reasons, I believe. One, six prior inconsistent exit laws have
    already complicated the exit requirement enough. We do not need
    another one. And, second, just a few weeks ago, congressional
    appropriators used their purse strings very wisely to realign
    exit implementation to Customs and Border Protection. CBP
    owning exit implementation may be the game changer we need to
    get the program done, because not only does CBP need that exit
    data to conduct admissions, but its sister agency, State, use
    it for visa adjudication and ICE needs better data to determine
    its overstays as well.
        Thank you so much for the opportunity to testify, and I am
    happy to receive your questions.
        [The prepared statement of Ms. Kephart appears as a
    submission for the record.]
        Chairman Leahy. Thank you.
        Our next witness is Chris Crane, president of the National
    Immigration and Customs Enforcement Council 118 of the American
    Federation of Government Employees based here in Washington,
    DC.
        Mr. Crane, go ahead.

     STATEMENT OF CHRIS CRANE, PRESIDENT, NATIONAL IMMIGRATION AND
        CUSTOMS ENFORCEMENT COUNCIL 118, AMERICAN FEDERATION OF
                  GOVERNMENT EMPLOYEES, WASHINGTON, DC

        Mr. Crane. Good afternoon, Mr. Chairman and Members of the
    Committee. I would like to begin by thanking the Senators on
    this Committee who have met with me and expressed concerns for
    law enforcement officers and the needs of law enforcement
    officers; in particular, Ranking Member Grassley, thank you.
        Americans should understand that this legislation only
    guarantees legal status for illegal aliens. It contains no
    promise of solving our Nation's immigration problems, no
    guarantee of stronger enforcement on our Nation's interior or
    its borders. It ignores the problems that have doomed our
    current immigration system to failure.
        I testify today without having the opportunity to read this
    bill in its entirety as the Gang of Eight's rush to pass this
    bill denies their fellow Americans the time and means of
    effectively studying the bill and adding input.
        This legislation was crafted behind closed doors with big
    business, big unions, and groups representing illegal aliens--
    groups with their own interests, groups that stand to make
    millions from this legislation. Anyone with a significantly
    different opinion on immigration reform was prohibited by the
    Gang of Eight from having input.
        Lawmaking in our Nation has indeed taken a strange twist as
    Senators invite illegal aliens to testify before Congress and
    groups representing the interests of illegal aliens are brought
    into the development of our Nation's laws, but American
    citizens working as law enforcement officers within our
    Nation's broken immigration system are purposely excluded from
    the process and prohibited from providing input.
        Last week, desperate to be heard, border sheriffs, interior
    sheriffs, deputies, and immigration agents all came to
    Washington, DC, with the hope that the Gang of Eight would hear
    their concerns. They held two meetings on two separate days.
    Not one Member of the Gang of Eight attended.
        Last week, when I respectfully asked a question of the Gang
    of Eight at their press conference, I was escorted out by
    police and Senate staff. I was spoken to with anger and
    disrespect. Never before have I seen such contempt for law
    enforcement officers as what I have seen from the Gang of
    Eight.
        Suffice it to say, following the Boston terrorist attack, I
    was appalled to hear the Gang of Eight telling America that its
    legislation is what American law enforcement needs.
        Since 2008, President Obama has ignored many of the
    immigration laws enacted by Congress and has instead created
    his own immigration system that unlawfully provides protections
    for millions of illegal aliens. Of course, Congress has done
    nothing to stop the President, and I submit to everyone that
    America will never have an effective immigration system as long
    as Presidents and their appointees are permitted to ignore the
    United States Congress and pick and choose the laws they will
    enforce and indeed enact their own laws without Congress
    through agency policy.
        This bill does nothing to address these problems. In fact,
    unbelievably, it gives far greater authority and control to the
    President and the Secretary of DHS--exactly the opposite of
    what our country needs to create a consistent and effective
    immigration system.
        If the laws enacted by Congress are not enforced by the
    Executive, America has no promise of future enforcement. That
    much is certain.
        Currently at ICE, immigration agents have filed a lawsuit
    against DHS and ICE because both have refused to enforce the
    immigration laws enacted by Congress. Agents cannot arrest
    individuals for entering the United States illegally or
    overstaying visas. Agents are prohibited from enforcing laws
    regarding fraudulent documents and identity theft. Agents are
    not permitted to arrest public charges. Agents are forced to
    apply the Obama DREAM Act not to children in children in
    schools but to adult inmates in jails, releasing criminals back
    into communities, criminals who have committed felonies, who
    have assaulted officers, and who prey on children.
        At an alarming rate, ICE deportation numbers have plummeted
    since 2008, evidence that interior enforcement has in large
    part been shut down, contrary to reports by Presidential
    appointees at ICE and DHS.
        In closing, my initial impression of this bill thus far is
    that in large part it appears to have a lot of loopholes.
    Everything from gang activity to arrest records to criminal
    backgrounds and fraudulent activities at many levels are
    acceptable or waiverable under this bill. The entry-exit system
    does not even utilize biometrics, making it ineffective
    yesterday. We already know that aliens are engaged in illegal
    activities that will bypass this system.
        At a time when Congress is proposing legalization for
    millions, I think Americans expected a stronger enforcement
    across the board that would prevent another wave of illegal
    immigration. Unfortunately, in terms of enforcement and
    providing for public safety, I think this bill is going to fall
    short in terms of legalization and eventual citizenship. For 11
    million illegal aliens, I think its success is guaranteed.
        Thank you, and that concludes my testimony.
        [The prepared statement of Mr. Crane appears as a
    submission for the record.]
        Chairman Leahy. Thank you.
        Dr. Steven Camarota is the director of research at the
    Center for Immigration Studies here in Washington, DC. You
    focus, I understand, on the economic and fiscal impact of
    immigration. Is that correct, Doctor?
        Mr. Camarota. Yes, that is correct.
        Chairman Leahy. Please go ahead.

            STATEMENT OF STEVEN A. CAMAROTA, PH.D., DIRECTOR
              OF RESEARCH, CENTER FOR IMMIGRATION STUDIES,
                             WASHINGTON, DC

        Mr. Camarota. Well, I would like to thank the Committee for
    inviting me. I am going to focus today on the fiscal side of
    things with some mention of the economics.
        In the modern American economy, those with relatively
    little education--immigrant or native--earn modest wages on
    average and by design pay modest taxes. Their lower income also
    means that they often benefit from welfare and other means-
    tested programs. As a result, the less-educated in general,
    immigrant or native, use more in services than they pay in
    taxes. There is simply no question about this basic point.
        The relationship between educational attainment and net
    fiscal impact is the key to understanding the fiscal impact of
    immigrants. The National Research Council estimated in 1996
    that an immigrant who arrives in the United States without a
    high school education will use $89,000 more in services than he
    pays in taxes during his lifetime. If you adjusted that for
    inflation, obviously, it would be much bigger now. For an
    immigrant who comes with only a high school education, the net
    fiscal drain is $31,000. However, more-educated immigrants,
    just as you would expect, pay more in taxes than they use in
    services.
        In the case of illegal immigrants, the vast majority have
    modest levels of education, averaging only about 10 years of
    schooling. This fact is the primary reason illegal immigrants
    are a fiscal drain, not their legal status.
        My own research indicates that if we were to legalize
    illegal immigrants and they began to use services and pay taxes
    like legal immigrants with the same level of education, the net
    fiscal costs at the Federal level would roughly triple because
    they remain unskilled.
        Now, the figure to my left here illustrates the strong
    relationship between fiscal impacts and education. The figures
    show self-reported--this is what people said--use of major
    welfare programs and tax liability for immigrant households
    from 2011 Census Bureau data. The figures show that 59 percent
    of households headed by immigrants who do not have a high
    school education used one or more major welfare programs. And
    70 percent of those same households have no Federal income tax
    liability. So the Census Bureau calculates how much they should
    be paying in taxes, and 70 percent of those whole households
    would pay none.
        Since roughly 75 percent of illegal immigrants either have
    no high school education or only a high school education, the
    chart illustrates what is so problematic about illegal
    immigration from a fiscal point of view.
        Now, it is worth pointing out that less-educated natives
    also have high rates of welfare use and low rates of tax
    liability. It is also worth pointing out, of immigrant-headed
    households using welfare, 86 percent--let me say that again-86
    percent had at least one worker. These figures, these high
    rates of welfare use, are not the result of a lack of work.
    Rather, they reflect educational attainment and resulting low
    incomes and low tax payments and, thus, eligibility.
        Now, advocates of amnesty and high levels of immigration
    have two main responses to this situation. First, they argue
    welfare and other programs used by U.S.-born children living in
    immigrant households should not count. Now, that makes little
    sense, obviously, because the child is here as a direct result
    of their parents having been allowed into the country, so it
    must count as well.
        In addition, I would point out that the National Research
    Council statistics I cite did not include the children. It was
    only for the original immigrant, and they still found very
    large net fiscal drains for less-educated folks.
        Now, the other argument advocates of high immigration and
    amnesty make is that immigration creates such wonderful
    benefits for the economy that it offsets the fiscal cost. But
    the National Research Council estimated both the fiscal effect
    and the economic effect and found that the fiscal drain from
    immigrant households was actually slightly larger than the tiny
    economic benefit that we got from immigration.
        As the Nation's leading immigration economist George Borjas
    of Harvard points out in a recent paper, immigration makes the
    economy larger, significantly larger, but it does not make
    Americans richer. It does not increase the per capita income of
    natives.
        Now, advocates for the amnesty respond that the National
    Research Council and the academic research is wrong. The Cato
    Institute, for example, commissioned a study a few years back
    using a model originally designed to estimate the impact of
    trade, and they found that the economic benefits were bigger.
    But it is not at all clear that that model even applies to
    immigration, and they largely ignore the actual fiscal
    characteristics of immigrants, like their use of social
    services.
        Now, more recently, Douglas Holtz-Eakin in an article for
    American Action Forum argued that immigrant-induced population
    growth would be a big economic benefit and, thus, generate
    large fiscal benefits or increases in per capita GDP. But he,
    too, ignored the academic literature. He ignored the
    development literature that looked at the impact of population
    growth on per capita GDP that does not show a big benefit. And
    he never mentions even in his paper the impact of legalizing
    illegal immigrants----
        Chairman Leahy. Thank you.
        Mr. Camarota. Could I just say one more sentence?
        Chairman Leahy. One more sentence.
        Mr. Camarota. One more sentence.
        In conclusion, if we decide to go ahead with this, we have
    to be honest with the American people and make it clear it
    comes with very large fiscal costs.
        Thank you.
        [The prepared statement of Mr. Camarota appears as a
    submission for the record.]
        Chairman Leahy. Our next witness is Grover Norquist, the
    president of Americans for Tax Reform, a taxpayer advocacy
    group here in Washington, DC.
        Mr. Norquist, you have been here patiently all day. Go
    ahead.

                STATEMENT OF GROVER NORQUIST, PRESIDENT,
                AMERICANS FOR TAX REFORM, WASHINGTON, DC

        Mr. Norquist. Good to be with you. Thank you, Mr. Chairman,
    thank you, Senators.
        People are an asset. They are not a liability. America is
    the richest country in the world. It is also the most
    immigrant-friendly country in the world. This is not a
    coincidence. It is our history, and it is what we have proved
    again and again. Those of us who would change our history and
    would make us less immigrant friendly would also make us less
    successful, less prosperous, and certainly less American.
        I am delighted that at a time when people talk about
    Washington not being able to get something done and coming
    together, we have seen a lot of movement on this issue because
    we have a growing consensus--I will speak from a center-right
    perspective. The Reagan Republican movement understands the
    need to come to legal status for those who are here. We have
    seen the business community go from silence to strong advocacy
    for making this progress. Farmers, ranchers, the dairy people,
    the high-tech industry, all the communities of faith--
    Evangelical, Protestants, the Southern Baptist Convention, the
    National Association of Evangelicals, the Mormon Church, the
    Roman Catholic Church, the Jewish organizations--all are moving
    in this direction, and this is a real opportunity for Congress
    to get together and make progress.
        Now, however you look at this, it is important that we use
    dynamic scoring when we ask how we handle some of these
    statistics. People who do not like immigrants want to look at
    costs and not benefits. They want to imagine that 20-year-olds
    stay 20 years old all their lives. But I would point out that
    people, as they come here, one, they accumulate skills; two,
    they get older, 30-year-olds make more than 20-year-olds. And
    ask yourself--we know that from 1986 there was a 15-percent
    jump in the income of the people who got legal status who had
    been illegal by becoming legalized. Well, how does this happen?
        Well, imagine what would happen to your siblings or your
    children if somebody said, ``Go out in the world and do the
    best you can, but no driver's license. Go out in the world and
    do the best you can, but do not get on a plane. And go ahead
    and go do what you want, but live in fear that when you do an
    interview, somehow you might get deported at the end of the
    interview.''
        I would argue, I think common sense tells us, that people
    who can live without that fear, people who can get a driver's
    license, people who can fly on a plane because they have earned
    legal status and the immigration reform that you have put
    together and are looking at has all the protections against bad
    guys coming in, going through people who are bad guys who need
    to leave, and this is tremendously helpful. And, again, taking
    a look at what Doug Holtz-Eakin has talked about, this is not
    just some increase in the economic health of the country. It is
    $2.7 trillion in advantage, reducing the deficit by having more
    people working. More people working, more people paying taxes
    is not a tax increase. It is deficit reduction without a tax
    increase. And I think it is the kind of deficit reduction that
    we can get bipartisan support for in the country.
        Now, people also throw up all sorts of other issues in
    order to throw marbles at the feet of a serious discussion
    about immigration. What about public education? The public
    schools do not teach kids how to read English well, and they do
    not teach them American history. Well, if that is a problem,
    then we need education reform, and that is being worked on
    State by State, but that is a problem for kids who are born
    here as well as everybody else in terms of what the quality of
    education they are getting is.
        What about the welfare system? Well, there are 185 means-
    tested welfare programs. Bill Clinton, a Democrat President,
    worked with the Republican Congress to reform Aid to Families
    with Dependent Children. We can make progress on the others as
    well. Reforming welfare is important, needs to be done, saves a
    lot of money, keeps people out of getting locked into welfare
    dependency. But none of those are arguments for getting in the
    way of immigration reform.
        And then there is the question of entitlements. Somebody is
    going to pay $100,000 in Medicare and get $400,000 in benefits
    because they are born. That is not a question of immigration.
    That is a question of an entitlement system that is out of
    whack and needs to be reformed.
        So let us reform public education, let us reform the
    welfare system, let us reform entitlements, but let us move
    forward first, now, on immigration reform as well.
        Thank you.
        [The prepared statement of Mr. Norquist appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        You know, Mr. Vidal, you talked about--this is not a
    question, but you talked about so many immigrants who are not
    legal, that they have no legal recourse when something happens
    if they are told, ``I will pay you $20, if I hire somebody
    else, I would have to pay them minimum wage, but I will just
    pay you $20,'' you have no legal recourse.
        My wife is a registered nurse. We were driving near Los
    Angeles once, and a well-dressed person with a large dog was
    walking down the street. A very large dog. A person who
    appeared to be in sort of workman's clothes and appeared to be
    Hispanic was walking up the street. The dog runs over, bit him.
    As we were driving by, we just saw the blood gush from his leg.
    Well, we turned around and zipped back to see if there was any
    way we could give any aid. He had left. The woman who had the
    dog was walking blithely down the street knowing this person
    could never make any complaint. And I tell you, that has stuck
    in my mind for years and years since then.
        Mr. Vidal. If I may add, Mr. Chairman, people suffer even
    greater happenstance than that, greater crimes, and have no
    legal recourse to go after the perpetrator.
        Chairman Leahy. Trust me, I was a prosecutor for 8 years,
    and I know those who were afraid to come forward and report a
    rape, report a batter, report a robbery, which meant that the
    rapist, the robber, the person who committed the battery got
    away scot free, and that is wrong, because they are out there
    and they could do that to anybody else and it is wrong.
        Mr. Norquist, you have addressed this, but I want to
    emphasize that some have said we cannot afford to reform our
    broken immigration system because of the current Federal
    deficit. I have heard 50 reasons why we cannot do something. It
    is very easy in the Senate to find reasons why we cannot do
    something. It is kind of nice to try to find a reason why we
    can.
        Do you believe the current proposal before the Committee
    would compound the budget and deficit challenges we all agree
    we face in this country?
        Mr. Norquist. No, quite the opposite. First of all, it is
    very clear that people who earn legal status are not eligible
    for many Federal benefits for 10 or more years going into the
    future. So you avoid that.
        Second, that gives you plenty of time to reform some of
    these programs that need to be reformed and that the folks over
    on the House side have already passed a number of reforms in
    the Ryan budget, which I commend to the Senate. But it
    certainly shows that it can be done, and I think it will be
    done.
        But, also, when you tell somebody that you are going to
    tell them go ahead and, you know, look for work, without
    papers, but you cannot get a license, you cannot fly, I mean,
    the number of things you cannot do, of course it depresses
    their wages and makes it more difficult for people to do
    better. I think you will see in this case, as we have in the
    past, tremendous increases.
        Let me just suggest, if we go back in history, this
    argument that people that come over will be wards of the state
    was used against the Irish Americans, about the Eastern
    European Jews, about Southern Europeans, about Asians. I mean,
    we have heard this again and again, decade after decade, and
    the people who said it have always been wrong.
        Chairman Leahy. My father was a grandchild of Irish
    immigrants and began with a very thriving business in
    Montpelier. My maternal grandfather came here from Italy, and
    he also put together a business in stone carving that employed
    a whole lot of people in a small town with very good wages.
        Now, Mr. Shurtleff, you mentioned that many of us have had
    a law enforcement background here, and, of course, you were
    Attorney General. We all ask these questions on bills like
    this. Is it going to help the efforts of State and local law
    enforcement to combat crime in their communities?
        Mr. Shurtleff. Absolutely, Mr. Chairman. We are very
    concerned, and, by the way, I talk to Federal and State law
    enforcement officers all the time. I attend funerals. I work
    with--I have created a foundation to treat police officers who
    are sick from busting meth labs without proper protection.
    Those people do not see these efforts at bipartisan reform and
    comprehensive immigration reform as any kind of disrespect or
    attack on law enforcement. Quite to the contrary, they see it
    as a support to assist them in their jobs and what they are
    trying to do.
        The people they work with in their communities, the whole
    concept of community-based policing which is so critical to
    success in our communities mandates that people feel safe and
    able to work with law enforcement and trust that when they are
    hurt, when they are seeking help, they are going to have that
    from their local law enforcement officer.
        Chairman Leahy. But it is the trust they have to have.
        Mr. Shurtleff. Absolutely need that trust. It disappears
    when----
        Chairman Leahy. And is it not possible we could have
    immigration efforts that might destroy that trust?
        Mr. Shurtleff. Absolutely. You know, we in law enforcement
    deal with the pragmatics, what is happening on the ground, not
    theoretics. And I have heard no proposals from the other side
    who are against immigration reform suggest anything that will
    work. Everything that is being done and proposed by this law
    that will discourage illegal immigration will encourage those
    people to come out of the darkness, to pay their back taxes,
    they will not have to steal Social Security numbers anymore
    simply because now they are going to be recognized. They are
    going to pay a penalty. This certainly is no amnesty as those
    in law enforcement understand what amnesty means. And it would
    be, I believe, a boon to public safety in this country as well
    as a moral imperative to go forward.
        Chairman Leahy. Thank you very much, and I am going to
    yield to Senator Grassley and hand the gavel over to Senator
    Schumer, who will hand it on to whomever he wishes. I have to
    go prepare for----
        Senator Grassley. Does that count if there are only
    Republicans here?
        Senator Schumer. I would be happy to hand the gavel over to
    you for----
        [Laughter.]
        Senator Grassley. Okay.
        Chairman Leahy. I have handed the gavel over to him on more
    than one occasion, as you may recall. There you go.
        Senator Grassley. I am going to start with Ms. Kephart if
    that is okay with you. Can you talk a little bit more about the
    need to include land ports environment with identifiers in the
    entry-exit system?
        Ms. Kephart. Sure. The land borders right now, as we all
    know, have the largest daily and national--annual crossing
    rate, much more so than the air and sea ports.
        Strangely, the exit component here does not include the
    land ports of entry. Perhaps that is because the
    infrastructures are really difficult to deal with, and that is
    understandable. But they need to be included because people can
    come in by air or sea and leave by land, and then we still do
    not have the data that we need for ICE to do its job, for CBP
    to have its admissions data, for the State Department to do
    visa adjudications.
        The biometric piece of this is something that the 9/11
    Commission was very, very interested in. We learned, in our
    findings and all my subsequent work with terrorist identities,
    that one of the best ways to determine a terrorist identity is
    through biometrics, because they will often change their name
    and change their identity. And without that biometric
    component, you will not evolve national security to the height
    that it can be.
        Biographic is very helpful. It gets us part of the way. It
    is a good first step. That is what the appropriators just did
    when they moved exit over to Customs and Border Protection to
    implement. That is a helpful first step. But biometric would be
    very helpful to have down the road if you really want to try to
    assure national security.
        Senator Grassley. Mr. Crane, in my opening statement, I
    talked about how the bill does not necessarily require the
    border to be secured before those here illegally are provided
    legal status or even citizenship. Is that your reading of the
    bill?
        Mr. Crane. Yes, Senator, it is. And, you know, I think in
    my comments I tried to point out that, you know, we currently
    have a situation where the Secretary of DHS and the President
    of the United States do whatever they want to do. They ignore
    the law, and they manipulate data. All of these things that,
    you know, are critical to making sure that there is some kind
    of system of integrity in place to monitor what DHS and ICE are
    doing down there and to stop the border--none of those things
    are going to happen, and all we have to do is look at what is
    happening right now. Everything this administration has done,
    everything this DHS Secretary has done, we can see right now
    this is not going to happen.
        Senator Grassley. Mr. Norquist, you know I agree with you
    most of the time, and I am surprised to see----
        Mr. Norquist. Good plan.
        Senator Grassley. I am surprised to hear you backing a bill
    that has emergency spending in it.
        Mr. Norquist. Well, I am a Jack Kemp-Ronald Reagan
    Republican, and I think that this is a bill that will spur
    economic growth, give people more opportunities, make the
    economy stronger. There is a downside that all these people who
    have been here undocumented will now pay taxes and pay fines
    and the Government will get all this money and do something
    horrific with it. But that is the downside of the project, and
    I understand that others think that that is a positive----
        Senator Schumer. We are good up until now.
        Mr. Norquist. Yes. So, look, the Government is going to get
    a whole bunch of revenue from people who have not been paying
    taxes and will be required to to earn legalization. There are
    fees involved, not exactly amnesty, as some people like to say.
    You wonder why they keep saying it. It is like a 14-year-old
    with a dirty word. They keep saying it again for shock value.
    It just is not true. You cannot hit people with fees and fines
    and all sorts of hoops to run through and act like you have not
    done anything.
        When we had the 55-mile-an-hour speed limit, there were an
    awful lot of illegal driving going on, and we did not decide to
    enforce that law. We decided to come up with a reasonable speed
    limit and then enforce it. We did not even go back--we gave
    amnesty to all those people who had been illegally driving.
    This goes back and gives fines to everybody who had been
    illegally driving throughout the 1970s, which is a rather rough
    thing. It certainly is not amnesty as it was then.
        I think we should move forward, do the fines, do the back
    taxes. Let us get these people continuing to work. They are
    working now, but do so in the light of day so that they are
    protected from any sort of abuse or exploitation. And let us
    get control of the border, which is what this immigration
    reform does in addition to improving our immigration policy.
        We have problems. We have high-tech workers that do not
    come here. They go to other countries and compete with us. We
    need more people on farms. We need more people in a number of
    areas, from ranchers to dairy to farmers. This bill makes a
    step there. I do not think it goes far enough as a robust
    enough guest worker program. I would like to see more. But this
    is progress.
        Senator Grassley. Ms. Kephart, your statement mentioned
    several examples of how terrorists take advantage of our
    system. You even mentioned how some terrorists have applied and
    received asylum. You also mentioned that the bill would allow
    people who have filed frivolous asylum applications to benefit
    under the legalization system.
        Do you know how many people fall into that category? And
    how does the bill before us make the current system weaker?
        Ms. Kephart. I do outline in my written testimony a number
    of pages of terrorists who have taken advantage of asylum. We
    have most notably the case just a few weeks ago of the Syrian
    national who has been here since 9/11, who was known to help
    and support materially the 9/11 hijackers, who also was
    affiliated deeply with Al-Awlaki, and his immigration--his
    asylum went three times before the judge. The Federal law
    enforcement officers tried to reopen the case, and the judge
    considered it final.
        Senator Grassley. I will ask you to go to that part of my
    question about how the bill might change this.
        Ms. Kephart. I do not see the bill changing it very much at
    all and helping the system that is in place right now, make it
    more secure. I do not--it is just not there, Senator.
        Senator Schumer. Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Senator Schumer.
    Thank you to all of you.
        I want to start with you, Mayor, as you are focusing on the
    economic advantages of this bill, which I think people do not
    always think about firsthand and how important they are.
        What do you see as the two or three biggest economic
    benefits of this bill?
        Mr. Vidal. Well, I think the first thing that we seldom
    talk about is that we need the workforce. I mean, even if we
    hired all Americans, we still would be short of that workforce,
    and we need it.
        I also think that immigrants tend to bring with them new
    ideas, new entrepreneurialism. You know, in Colorado, 60
    percent of small businesses right now are Hispanic-owned
    businesses; a majority of those are immigrants. So if we talk
    about small businesses being job creators, this certainly will
    create jobs.
        I think in addition we will have new consumers. We will
    have folks who can apply for home mortgages, buy cars, and do
    the kinds of things that spur business growth in our country.
    So I think that there are many benefits to that.
        As the former mayor of a large city, I know that we are
    always short of funds for government services, therefore, I
    believe that the new tax and fee revenues that will be
    generated by this immigration reform will help us fund those
    services and thereby strengthen our Government.
        Senator Klobuchar. Just to add to that, our State is
    actually second per capita for Fortune 500 companies, and one
    interesting fact is that of Fortune 500 companies, 90 of them
    are headed up by immigrants. Just to reinforce your view not
    only with small businesses but big businesses, and another
    double that are kids of immigrants. So I think people have to
    understand that this is more than just about legalizing people,
    bringing people in. It is the jobs that it will create in our
    own country.
        You also, I know, are a fan of the Invest Visa for foreign
    entrepreneurs. Can you comment on that quickly? Because I have
    one more.
        Mr. Vidal. Well, I think, again, it is that foreign
    entrepreneurs can invest in companies here in the United
    States. I think we should welcome that. We compete in a global
    economy. It is something that would certainly be to our
    economic advantage to allow.
        Senator Klobuchar. Thank you.
        Mr. Norquist, welcome. I was teasing you outside that we
    welcome you for your bipartisan debut, but you quickly
    corrected me that you, in fact, have testified before on
    evening out the penalties on crack cocaine and that that was a
    bipartisan effort.
        Mr. Norquist. Unanimous in the House.
        Senator Klobuchar. Well, thank you. So this is what happens
    when you get involved in a bipartisan effort.
        The thing that I was going to ask you about was the H-1B
    cap. There has been a lot of testimony on that today. How do
    you see it improves the employment-based immigration generally?
    We want to focus on allowing American companies to grow here
    and add jobs here. And how do you see increasing that cap
    helps?
        Mr. Norquist. Look, we need to increase the H-1B cap. It is
    not high enough. You know, within days it was reached just this
    year. There is an awful lot of talent around the world that
    American firms would like to hire and bring here to work to
    create additional jobs here from Silicon Valley to across the
    country in all 50 States. These are people who come and create
    other jobs for themselves and other people, and it is a number
    that ought to be higher. It has increased in this legislation.
    It is a very important step. I think it should be increased
    more than in this legislation. But this is a real opportunity.
        You want to know how does it create jobs? It allows people
    to come here to create jobs. These people are bright, they are
    hard-working. They are going to be working somewhere else,
    either in other countries, a number of people have brought them
    up to Canada because they cannot bring them across the border
    here. Nobody should be stuck in Canada. It is not fair. We
    should let them all come here----
        Senator Klobuchar. Oh, come on. I can see Canada from my
    porch in Minnesota.
        [Laughter.]
        Mr. Norquist. Oh, a foreign policy expert.
        So this is an opportunity to bring these people--allow them
    to come to the United States and work here, and raising that H-
    1B visa is an important part of why this is a pro-growth
    policy.
        Senator Klobuchar. Very good. I noticed in your testimony
    that your testimony ends with a quote from President Reagan's
    farewell address, in which he described ``a shining city on a
    hill,'' and he said this: ``If there had to be city walls, the
    walls had doors, and the doors were open to anyone with the
    will and the heart to get here.''
        I think this quote is a good reminder that we have to keep
    working on this bill, and I wondered if you want to comment on
    why that quote was meaningful to you in this context.
        Mr. Norquist. Well, I think it is important to remember
    that the Reagan Republican/Jack Kemp Republican position has
    always been immigrant welcoming, and that this is--you see this
    now coming stronger, both in the business community and in the
    religious community, communities of faith. In 1999-2000, I was
    at a meeting with the head of the Republican Party, the
    Republican National Committee. Ten major trade associations--
    Chamber, NAM, NFIB, Retailers--and I was there as the taxpayer
    guy. And they went around the table, what is important? And
    they said, ``Do something icky to all the trial lawyer, cut the
    capital gains tax.'' And they went back and forth between those
    two important projects.
        And then at the end, the RNC Chair said, ``Thank you very
    much,'' and he got up to leave, and a gentleman from the
    Chamber said, sort of like they do in the ``Colombo'' shows
    just in the last minute, he said, ``There is this other
    thing.'' ``Well, what is it?'' ``Well, I do not know how to
    bring it up.'' ``What is it?'' ``Well, we have never mentioned
    it before.'' ``What is it?'' He said, ``We are running out of
    workers. The economy is growing. We need immigration reform. We
    have never worked on this before. We do not know how to address
    it.''
        Everybody around that table, from the truckers to the
    restaurateurs to the retail people, all said, ``Actually that
    is a bigger issue for us than the stuff we talked about.'' And
    the business community did not talk about it for years. They
    are now talking about it again and focused on the importance of
    reforming it. H-1B visas, a guest worker program--all of these
    things are steps in the right direction. Very helpful for the
    economy. This is the most--this is real stimulus. This would be
    the best thing that the Senate and the House and the President
    could do for the economy and for deficit reduction, and it
    really should be a high priority.
        Senator Klobuchar. Thank you very much. I appreciate it.
        Senator Schumer. Senator Sessions.
        Senator Sessions. I will yield to Senator Cornyn.
        Senator Schumer. Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman. I appreciate my
    friend Senator Sessions letting me go next.
        Ms. Kephart, you were very much involved with the 9/11
    Commission, correct?
        Ms. Kephart. Yes, sir.
        Senator Cornyn. And I seem to recall that at least six of
    the 9/11 hijackers came into the country legally but overstayed
    their visa. In other words, they were part of that 40 percent
    today, roughly, of illegal immigration that occurs when people
    come in legally but overstay. Was that a major concern of the
    9/11 Commission?
        Ms. Kephart. Well, actually, in my findings, most of the
    hijackers worked extremely hard to stay within their legal
    admission time frame. So you had the pilots going in and out
    many, many times. But the ``muscle hijackers,'' as we called
    them, the support hijackers, basically came in April and May
    and June of 2001 to stay within the 6-month time frame that
    they had. There was only one that came in, and he was given a
    business visa of 2 weeks, and he was an overstay. So the
    overstay issue, like the land borders, was not a big issue for
    the 9/11 Commission because they did not become part of the
    story.
        When they became a part of the story was when we insisted
    on looking at a pattern of activity of terrorists and how they
    abuse the immigration system. As we started looking into it,
    and we realized there was as pattern of terrorist travel, we
    asked to look beyond that. Our executive director gave us the
    ability to do that, and that is when we saw all the other
    issues evolving.
        And I did a major report subsequently on 94 terrorists and
    how they managed to embed and assimilate in this country, and
    the visa overstay piece of it was a large part of it.
        Sorry for the long answer.
        Senator Cornyn. Mr. Norquist, you know there is a lot of
    skepticism about the Federal Government in general and Congress
    in particular. I think Congress' approval rating hovers around
    11 percent, maybe 15 percent today. So it seems to me the last
    thing we would want to do is to confirm that lack of confidence
    that many of the American people have about Congress and
    promise something we are not going to deliver. And I am
    concerned particularly about the border security element and
    the visa overstay element. With 40 percent of the illegal
    immigration occurring because of people who enter legally and
    then since we are not keeping track of them--and I am very
    concerned about the lack of an exit program at the land-based
    borders, particularly in my State with 1,200 miles of common
    border with Mexico. But are you concerned at all that the
    border security component of this, about the credibility of it,
    which only provides that three out of nine southern border
    sectors will require the 90-percent effectiveness rate in terms
    of apprehension, when, in fact, we know that as you tighten the
    border in one place, the human smugglers, the drug dealers, and
    others come through other less guarded places? Is that an
    important issue?
        Mr. Norquist. Look, border security is important to the
    country. Border security is important to this bill holding
    together. The way we in the past have dealt with border
    security issues, we used to have over 800,000 people
    apprehended at the border with Mexico, and then we had a guest
    worker program put in by Eisenhower. And then it went down to
    about 45,000. And as long as that robust guest worker program
    was there, people crossed legally, not illegally. The most
    important thing you can do to reduce illegal entry is to have a
    serious, grownup, robust guest worker program and a way for
    people to get her legally to do work that needs to be done with
    willing employers and willing workers. Then you only have to
    worry at the border about bad guys, not about guys that want to
    work.
        Senator Cornyn. Well, I agree with that last comment. I
    agree that if people want to come here and work, then having a
    legal system for them to do so is important. But I do not think
    that is going to deter the drug traffickers, the human
    traffickers, and other people that deal in contraband.
        Mr. Norquist. But, sir, it frees up the officers at the
    border to focus on bad guys instead of trying to go after
    people who are coming here to work because they would have a
    legal way to come here and work. That is what happened when
    Eisenhower did it, and I think there was a lot of wisdom.
    Eisenhower had a very big success there. And when the Federal
    Government does something well, it would be a good idea to
    study it because it is kind of rare.
        Senator Cornyn. Mr. Shurtleff, it is good to see you again,
    and I just had a question about the provision of the
    legislation which, again, I am not sure how many of you have
    had a chance to read all 844 pages of it, but it does provide
    that people who have been convicted of multiple domestic
    violence offenses, drunk driving offenses, and child abuse
    offenses, that they could take advantage of this legalization
    pathway.
        Would you be concerned about where that line is drawn in
    terms of whether that should be available to those folks?
        Mr. Shurtleff. Yes, Senator, absolutely. You know, some of
    the concerns we have had in law enforcement, local and State
    law enforcement officers, with some of these State-by-State
    requirements of acting as ICE agents was it took away from
    their responsibilities to protect the public from other type
    criminals. And so, yes, I am concerned about that. I think that
    needs to be looked at and resolved. Truly, these--we are going
    to give this opportunity to be given to those who are truly the
    law-abiding members of our community.
        Senator Cornyn. Mr. Vidal, thank you for your kind comments
    about the people of West, Texas. I think the President is going
    to be there on Thursday as part of the memorial service for the
    first responders at Baylor University, but thank you for your
    kind comments.
        Thank you.
        Senator Schumer. Senator Blumenthal.
        Senator Blumenthal. Thank you, Senator Schumer, and thank
    you all on this panel. It has been a very thoughtful and very
    worthwhile panel, and let me begin where my former colleague,
    former Attorney General, now Senator Cornyn, began, by asking
    you, Mr. Norquist, your point really is-- and I think it is a
    very profound and fundamental one--that enforcing a broken
    system, a bad law or set of laws in the sense that it is
    irrational and arbitrary is very difficult to do effectively.
    In other words enforcing a bad law is very difficult for law
    enforcement to do.
        Mr. Norquist. Absolutely. And, again, the example that
    people can remember because most of us do not come in touch
    with real crimes day to day, but when we were all busy doing
    illegal driving because there was a 55-mile-an-hour speed
    limit, we realized that was an unreasonable law, it needed to
    be reformed. We reformed that law, and then we enforced the
    law.
        We have a need in this country and can welcome many more
    immigrants legally than we have, and this is a debate about how
    many immigrants and how welcoming we are going to be. We are
    losing internationally because we are not bringing--or allowing
    in many of the best and brightest who then go work somewhere
    else and start companies somewhere else. Forty percent of the
    Fortune 500 CEOs that were born elsewhere or are the children
    of people who were born elsewhere, do you really want those in
    other countries? Why not here? This is a jobs program. This is
    about economic growth. And people misunderstand that, do not
    see it. They need to focus on the fact that this is how our
    country grew.
        The idea that more people make us poor is nonsense. We used
    to have 3 million people. We lived on farms. We now have 300
    million people. We are not a hundred times poorer. We are more
    than 100 times wealthier. More people in a free society
    increase wealth because people are an asset. When you hear, oh,
    we have got more oil and natural gas in North Dakota, we do not
    go, ``Oh, that is too bad.'' We say, ``Good.''
        More people are an asset in a free society. And, yes, we
    can afford to be choosy on who we have in because so many
    people in the world would like to live here.
        Senator Blumenthal. And I appreciate that point, and the
    potential contributions especially among the higher-skilled
    people are one of the reasons that I am supporting the I-
    squared legislation that my colleagues Senator Klobuchar and
    Senator Hatch have taken the lead on.
        Mr. Norquist. Very important legislation.
        Senator Blumenthal. And I am very proud to be supporting
    it, and I am proud to welcome my former colleague, Mark
    Shurtleff, and thank you for your excellent testimony here
    today as well as your terrific work as a law enforcer. And your
    point that also it is a broken system and as a law enforcer as
    well as a moral imperative, you believe that this kind of
    reform is necessary. And I do not know whether you were here
    for the testimony that was provided on the prior panel about
    the supposed impossibility of these background checks working.
    I wonder if perhaps you have an opinion on that point.
        Mr. Shurtleff. Well, certainly they can work and will work.
    But there is no other answer to what we ought to do. Again, we
    have to deal in pragmatics in law enforcement, what is
    happening on the ground. For example, in Utah, we knew people
    were there driving without driver's licenses. They are all over
    this country driving without driver's licenses. But it became
    imperative, we felt, for law enforcement, knowing they are
    there, as a public safety measure, to make sure they took a
    test and understood the law. We gave them an authorization to
    drive. Eighty-five percent of those who we gave authorization
    to drive had insurance so that if they ran into us, their
    insurance would cover it. We knew where they were. It was
    pragmatic. The same thing with in-State tuition in Utah. I have
    taught in fifth grade classes, kids how to stay away from gangs
    because the gang bangers, which are 70 percent Latino in Utah,
    way disproportionate to the population, are telling these kids,
    ``You can never succeed, you cannot go to college, you will not
    be able to work, join the gang.'' And I am telling the kids,
    ``Stay away from gangs, stay away from drugs, study, and in
    Utah you get to pay in-State tuition just like the kid sitting
    next to you and who walks down in the graduation.''
        I mean, these are practical solutions, and that is the same
    thing with those who are working and dealing with those who are
    here, that we are able to do those background checks. And I
    think we can do it effectively.
        Senator Blumenthal. Thank you.
        Let me finish with you, Mayor. You know, your story is a
    very inspiring one, and I think your being here to share it
    with us is enormously meaningful, and I want to thank you
    particularly for being here. I know you have a long career of
    public service but I think you have done us a great service by
    sharing with us. And I think it makes a point that we too often
    overlook, which is that people who want to come to America are
    often among the best and the brightest everywhere in the world,
    and they choose to come here because they want that
    opportunity.
        You know, when I am feeling down and discouraged, and I was
    pretty down and discouraged last week for various reasons, not
    the least of which were the disasters in Boston and Texas and
    then the vote here on gun safety, as I often do, I went to some
    immigration and naturalization ceremonies. And they are just
    enormously inspiring and uplifting because, as you know, people
    come with tears in their eyes, their families, their friends.
    It is a tremendous celebration. It is one of the high points of
    their life. And your story about your parents sending you to
    this country, involving huge sacrifice on their part, but
    knowing that it would be great for you as an opportunity is
    very inspiring, and I just want to thank you for being here
    today and for making that points.
        Mr. Vidal. If I may just respond for a second, I know we
    hear today a lot of bad things about immigrants, but the
    overwhelming majority of them bring with them an iron will to
    succeed, a tireless, steady work ethic, a tremendous gratitude
    for being given a second chance in a new country, and that
    always--always--triggers in them a tremendous desire to
    contribute to this country. And I think we have seen that time
    and time again through generations.
        Senator Blumenthal. And they appreciate citizenship in a
    way that many Americans do not. Thank you.
        Senator Schumer. Senator Lee--Senator Sessions. I am sorry.
        Senator Sessions. Thank you.
        Mr. Crane, thank you for your leadership. Mr. Crane
    represents 7,000 Immigration and Customs Enforcement agents. He
    is a former marine. You can tell he has got the courage of his
    convictions. That association unanimously voted no confidence--
    and Mr. Morton, who is the head of the ICE group--because they
    have undermined their ability to enforce the law. They filed a
    lawsuit in Texas--or I think it is in Texas--a lawsuit in
    Federal court to try to force them to allow them to follow the
    plain requirements of the law.
        So I think your criticisms of the President and your
    criticisms of this process, your repeated requests--you
    repeatedly requested the right to participate in these
    discussions, advise and give your opinion on how to craft a
    system that would actually work. You were denied that, and I
    thank you for your speaking out. I think it is very much
    important.
        We certainly had the pro-immigrant groups really active
    pushing. We had the people with similar interests, and that is,
    the business community to have more workers. But the law
    enforcement people who have got to actually enforce the law,
    make sure it stays on a sound basis, were shut out of the
    process. So I want to thank you for that.
        Dr. Camarota, I want you to talk with us a little bit about
    some of the statements that have been made here by others
    today. With regard to legal immigrants who have low education,
    high school or below high school education, that are legal, do
    we have data that shows how they compare to the same cohort of
    people in the country who are American citizens with the same
    educational level? And what are the implications of that?
        Mr. Camarota. In general, the immigrants have relatively
    high rates of work, but also high rates of welfare use, and
    relatively low rates of Federal income tax and other tax
    liability. But as a general proposition, the less-educated
    immigrant or native do not come close to paying what they use
    in services.
        The Heritage Foundation, looking at both immigrant and
    native households together, estimated about $20,000 a year, and
    that was several years ago, the difference between what the
    least educated pay in taxes and use in services. And you can
    see that same phenomenon here.
        In my testimony, I have the statistics for less-educated
    natives, and in some ways, the immigrants look a little worse,
    but the important point is that both less-educated populations
    have this negative fiscal impact.
        Now, if I could just say, I do not think we should see this
    as some kind of moral defect or moral failing; rather, the way
    to see it is simply reflecting the realities of the U.S.
    economy, which does not offer much in opportunities to people
    with less education, including American citizens, and at the
    same time the existence of a well-developed----
        Senator Sessions. Well, are we not counting kids in high
    school if they do not get a high school diploma and even try to
    go on further, they have a hard time getting a good-paying job
    in America? And should we not, therefore, when we seek to
    accept people legally into the country, should seek those who
    have education levels that will allow them to be most
    successful?
        Mr. Camarota. Right, exactly. About 40 percent of all the
    high school dropouts in the United States today are foreign
    born, and very roughly, about half are legal and half illegal.
        Senator Sessions. Well, tell me about--let us say Social
    Security and Medicare. How will this law, if passed, impact the
    viability of those programs? Social Security now has a $7
    trillion unfunded liability debt out there over the next 75
    years. What would this do to it?
        Mr. Camarota. Right, the thing to understand about Social
    Security is it is partly redistributive, paying more generous
    benefits back relative to what is paid in to the low income. So
    what this bill does, by allowing all the illegal immigrants to
    stay and get legal status, is it adds lots of new claimants on
    the Social Security system who are low income.
        Yes, we hope that their wages would rise with legalization,
    but it does not change the underlying educational attainment of
    the immigrants, and that is why it creates negative long-term
    implications for Social Security and Medicare, because you are
    adding lots of low-income people to that system. You cannot
    fund the welfare state and you cannot fund social services with
    low-income folks. It is just that simple. It does not make them
    bad. It does not make them evil. And it does not mean they do
    not work, and it does not mean they all came to get welfare.
    But the reality is what is on this chart, that there are very
    high use rates of public services from the less educated and
    very low tax contributions.
        Senator Sessions. Well, I just would say that there are
    possibilities for us to reach some agreement on higher-skill
    entrants and immigrants, but this bill does not make sufficient
    changes in that regard.
        Senator Schumer. Senator Lee.
        Senator Lee. Thank you very much, Mr. Chairman, and I want
    to thank the witnesses for coming and enduring our questioning.
        I especially want to thank and welcome my friend Mark
    Shurtleff. He has been a friend for a long time. I have known
    him as a lawyer, as a client, and just a fellow resident of
    Utah, so it is a pleasure to have you here.
        I am very concerned with the near-complete discretion that
    would be granted to the Secretary of Homeland Security through
    this bill, and especially in connection with the border
    security provisions of this bill.
        This certainty that should accompany the border security
    triggers tends to dissolve, I think, with the delegation of our
    decisionmaking authority to an agency that has demonstrated a
    certain level of disregard for congressional guidance--I should
    not call it ``congressional guidance.'' It is law--particularly
    in the field of immigration.
        Many conservatives are genuinely willing to discuss
    fundamental immigration reforms, so long as that reform is
    founded on a truly secure border and a renewed commitment to
    enforce our current immigration laws. And I fear that while
    this bill does a lot of things and it does a lot of things that
    would be good, it does not do nearly enough to establish that
    foundation that I am talking about. And so I am always looking
    for ways that I can look to reform something, but to reform it
    to make it better, we have to understand what it is that is
    lacking. So I have got some questions that I would like to ask
    about this.
        First of all, Mr. Crane, from the date of enactment of this
    law, assuming it is enacted into law, until the end of the RPI
    period, this bill would seem to, as I understand it, prevent
    anyone from being detained or deported, even if apprehended, so
    long as they appear prima facie eligible for RPI status under
    the bill. Is that your understanding?
        Mr. Crane. Absolutely, Senator.
        Senator Lee. And is it also your understanding that the RPI
    period, once you factor in the automatic discretionary
    extension period that the Secretary is allowed to invoke, will
    take it up to 3\1/2\ years?
        Mr. Crane. I saw it as 3 years, sir, but it could be 3\1/2\
    years.
        Senator Lee. Okay. Now, you have testified before this
    Committee that the work of ICE agents has been hampered with a
    similar prohibition on pursuing cases against those who merely
    claim eligibility, you know, with nothing other than their own
    word at the moment for DACA. That is, once an alien in custody
    says that they qualify for DACA, ICE agents just cannot process
    them, that that shuts it down.
        Now, if this same approach is used by an illegal alien who
    has entered after the enactment of this law, assuming it is
    enacted into law, will not this 3- or 3\1/2\-year period,
    whichever it is, amount to a de facto enforcement holiday
    during which time ICE will not be able to apprehend anyone once
    they claim to be eligible for RPI status? Am I understanding
    that correctly? Or am I missing something?
        Mr. Crane. No. You nailed it, sir, and I mean, that is a
    big concern for us, too, because we feel that even the people
    that are now making the run on the border are going to be
    included into that group as well.
        Senator Lee. Now, the legislation also says that anyone in
    this category has to be given what the bill describes as a
    ``reasonable opportunity'' to file an RPI application. Do we
    know what that reasonable opportunity consists of?
        Mr. Crane. I do not, sir.
        Senator Lee. Can you tell me, you know, based on your
    experience with law enforcement in this area--you know, you
    come to this with a unique background that enables you to sort
    of forecast where some of the problems might be and where some
    of the good things might be. In what ways can you tell me that
    this bill, the one we are now considering, will tend to improve
    or enhance your ability to enforce the laws?
        Mr. Crane. Well, Senator, it is real difficult for us, I
    think, to say at this point because, like everybody else, we
    are struggling to read through this monster and reference back
    and forth in terms of what improvements it makes for us. And to
    be quite honest with you, I have not--I know there are some
    improvements in here, but I really have not seen a lot of them,
    and I am confused by some of these things with regards to the
    three misdemeanors and the CIMT standards, the Crimes Involving
    Moral Turpitude, that we have now that could be misdemeanor
    offenses, you know, one within 5 years of admission, two at any
    time thereafter. How does that mix in with these three
    misdemeanors? What are significant misdemeanors? That is not a
    legal term that we are familiar with. It is something we
    struggle with out in the field already.
        So this thing for us right now makes a lot more questions,
    I think, than it provides answers. So like I said, it is going
    to take a lot of digging through this.
        You know, I have seen some things with regard to gang
    affiliation, the general concept, of course, we are all about
    that. We have been asking about it forever. But if I understand
    the legislation correctly, it seems to say things like if the
    person says, ``I am no longer part of the gang,'' you know,
    that they get to have this probationary period. I find that
    highly problematic. It seems to say that people under 18 years
    of age could possibly continue to be gang members. I do not
    know. It is very confusing.
        The DUI thing is something we have been asking for, for a
    long time. To give someone three DUI convictions, if I
    understand that correctly, I find that, again, extremely
    problematic. You know, these are folks that are driving in one
    ton of metal down the highway at high speeds. They are
    dangerous. It is happening a lot. We all know that. To give
    them three shots at that, a felony DUI, as a law enforcement
    officer I think that is a no-go.
        And when I look through this as well that these folks that
    are on probation, you know, first of all, to even get on the
    probationary status, if I understand this correctly, they get
    three misdemeanor criminal convictions that are not traffic
    offenses. And then once they get on the probation, we continue
    to let them get criminal convictions, if I understand it
    correctly.
        And so I guess--I know we are redefining a lot of words
    here, ``amnesty'' and all these different things, but if that
    is the case, I think we have redefined ``probation'' as well. I
    do not understand why someone has committed a Federal crime by
    entering the United States illegally--and it is a crime, not
    just an administrative offense. It is a crime. And so we give
    them probation for that, and now we allow them to continue to
    break our Nation's criminal laws and stay in the United States?
    Just I do not understand it.
        But like I said, I apologize. I wish I could give you a
    better answer, but we are struggling to sort through this
    thing.
        Senator Lee. Well, it is only 844 pages.
        Mr. Crane. Yes.
        Senator Lee. Thank you, Chairman.
        Senator Schumer. Thank you. I would just correct the
    record. Any felony conviction or DWI--in almost all States by
    the time it is the third conviction, it is a felony.
        Mr. Crane. Yes, sir.
        Senator Schumer. So it is rare that you would have three
    DWIs and people would not be deported.
        Senator Flake.
        Senator Flake. Thank you.
        Mr. Shurtleff, I want to commend what you have done in Utah
    with the Utah Compact. That has provided a blueprint and a
    model for a lot of people in Arizona who have been looking for
    a rational, humane approach to this problem. And so thanks for
    helping to lead the way there.
        Mr. Crane and Mr. Camarota, would you agree with those on
    the last panel who said that they would define amnesty as
    anything that allows anybody who has crossed the border
    illegally to stay under any form, whether it is RPI status or
    anything else? Is that what constitutes amnesty for both of
    you?
        Mr. Camarota. Yes, anytime you set aside the rule of law
    and you give someone a chance to--some other special thing,
    whether they pay a fine or something, that would be amnesty.
    That does not necessarily make it a bad idea, but I do believe
    in truth in advertising.
        Senator Flake. Mr. Crane, you would agree with that? It is
    amnesty as long as somebody--regardless of whether they are
    paying a fine or earning their way to legal status?
        Mr. Crane. Well, in my statement I refer to it as ``legal
    status.'' I did not use the word ``amnesty.'' But if you are
    going to kind of put me to it, I guess, sir, I would have to
    say that I do believe that once you allow that person to stay
    in the United States after they have come here in violation of
    law, I would believe that most Americans would think that that
    would be an amnesty.
        Senator Flake. All right.
        Mr. Crane. Thank you.
        Senator Flake. Mr. Norquist, your organization has a big
    grassroots presence around the country. I suppose since you
    have taken quite a public role here on this that you have heard
    from them. What are you hearing?
        Mr. Norquist. Look, people understand that the system we
    have is broken. We do not have the number of high-tech workers
    coming into the country that we need to. We do not have a guest
    worker program that we need to. We do not have a secure border.
    We need to have protection to know who is in the country. And
    people understand that if people have to go through paying
    fines, back taxes, that that is not amnesty or not nothing. It
    is a lot of money. Some people may be so rich they think a
    couple thousand dollars is nothing. But it is not for most
    people. And with earned legal status, they are willing--you see
    it in the polling data, but you certainly see it in the center-
    right movement. I mean, I see that the business community, the
    small businesses in particular--this is not a Fortune 500
    issue. This is a small business issue. Farmers and dairymen and
    ranchers around the country have been explaining that they need
    this. You see this with the various communities of faith. All
    of the various communities of faith have focused on this and
    are saying that we need to move forward on this.
        So from a center-right perspective in terms of the Reagan
    Republicans around this country and conservatives, absolutely
    yes, it is very powerful. The arguments against it are the
    arguments of Malthus and the left, and they do not really carry
    a lot of weight with Reagan Republicans.
        If you want to go through the myths, one of the things that
    I used in my testimony today were the nine myths of
    immigration, which the Heritage Foundation put out. Julian
    Simon was their senior fellow at the time. This is back in the
    1980s during Reagan's Presidency, and it walks through all of
    the canards that you hear from people who did not like the
    Irish and did not like the Jews and did not like the Asians and
    did not like all the previous groups, and now we are told that
    this new group is going to be a problem coming into the
    country. Every time we have been through this, on whether they
    are criminals or all go on welfare or do not want to work, we
    have found that not to be the case. And the Heritage Foundation
    did a very good study under the Reagan years, and another
    extremely good one in 2006 which made the case that, of course,
    immigration and more immigration makes us a richer country, not
    a poorer country, and helps out on questions of deficits and
    economic growth.
        So from a center-right perspective--and one of the groups
    we have talked to has been law enforcement as we go State to
    State. The Austin chief of police, a big advocate of
    comprehensive. When we were in Indianapolis, the same thing.
    The groups we always talk to are the police officers, the guys
    with badges, as well as the business community and the
    religious community.
        Senator Flake. Thank you.
        Thank you, Mr. Chairman.
        Senator Schumer. Thank you. I will do the last round. I
    know it has been a long day for the witnesses.
        First, this is to Ms. Kephart. When the FBI was
    investigating Tamerlan Tsarnaev's travel, it did not find his
    trip to Russia--this is after he got back--because Aeroflot,
    the Russian airline, typed in his name incorrectly. Our bill
    requires that travel exit data be based by swiping the passport
    or making sure it is machine readable upon exit.
        DHS says this would have helped the FBI in this case. Do
    you agree?
        Ms. Kephart. Yes, absolutely.
        Senator Schumer. Okay, good. That is one example of many
    where we are tightening things up. That would have been
    relevant since people want to focus on Boston.
        Now, to Mr. Camarota, I mentioned this to the previous
    witness from your group. I guess you are the second witness
    from CIS. You folks are not only against illegal--you are
    against illegal immigration, but you are for reducing--or you
    want to reduce the amount of illegal immigration, so do we. And
    we go to great pains in our bill to try and do that. But you
    also want to reduce legal immigration. Is that correct?
        Mr. Camarota. Yes, we basically come down on the issue
    where Barbara Jordan, your former colleague, did when she
    headed a commission in the 1990s that a more moderate pace of
    immigration would make sense economically and so forth.
        Senator Schumer. Okay. Now, let me ask you--you have a lot
    of those economic levels. What do you think of the H-1B and the
    high-tech visas that we have proposed? Are you against that
    part of our proposal?
        Mr. Camarota. Yes, I think that you----
        Senator Schumer. You are? You are against it?
        Mr. Camarota. No, no. Let me say this. You can allow in
    highly skilled workers and not worry about a fiscal
    consequence. Something very different from letting people in
    with very little education.
        Now, there might be other concerns. Are you displacing
    Americans? Are you discouraging Americans from going in? Are
    you making American business increasingly indifferent to what
    is going on in the American education system? There are maybe a
    lot of negatives. But you do not have to worry about a fiscal
    consequence.
        Senator Schumer. And you saw that we do make provisions in
    there that they have to hire Americans first. So just let me
    ask you, I mean--Mr. Crane says he is having trouble going
    through it. I understand it is a long and complicated bill. It
    has been online for 6 days. It will be online for 3, 4 weeks
    before we mark up. That is unusual for a complicated bill to be
    out there and available for as long as it is.
        But, Mr. Camarota, from what you have seen, if you had to
    say you support or do not support the H-1B sections of our
    proposal--well, let me ask you this: Would you support giving a
    green card to any foreigner who graduates, gets an M.A. or
    Ph.D. in STEM in an American university?
        Mr. Camarota. Sure, it is about 5,000 or 6,000 people a
    year, and we can give all those green cards----
        Senator Schumer. It is more than that.
        Mr. Camarota. For just Ph.D.s. We can certainly do that. An
    M.A.----
        Senator Schumer. We do it for M.A.s.
        Mr. Camarota. Is a very different thing. Ph.D.s is rigorous
    and specialized.
        Senator Schumer. Okay. So you would do it for Ph.D.s.
        Mr. Camarota. Sure. But they mostly all stay now anyway.
        Senator Schumer. Okay. So there is one part of the bill we
    agree on.
        Mr. Camarota. It would not be a big issue.
        Senator Schumer. How about for M.A.s? You do not agree with
    that?
        Mr. Camarota. No, because obviously an M.A. is a very
    different kind--having had both, it is very different, and you
    can easily imagine----
        Senator Schumer. This is just in STEM. Just in STEM----
        Mr. Camarota. Right.
        Senator Schumer [continuing]. Science, technology,
    engineering----
        Mr. Camarota. But you can easily imagine a kind of visa
    mill there where people are just issuing M.A.s exclusively so
    that someone could get a visa. I do not think that would make
    sense. But for Ph.D.s, sure, you can give them all green cards.
        Senator Schumer. Okay. And--well, I think we have gone over
    time. I have a minute left, and I am going to--do you want,
    Senator Lee--because I know----
        Senator Lee. If we could have one more round.
        Senator Schumer. Well, we have not had rounds, and the
    Chair has to be gone. We said we would finish at 5:00. But I
    will give you one more question. How is that? And you can
    submit--by the way, the record will stay open until Wednesday.
    Any Member can submit questions in writing, which have to be
    answered--a week later?
        Okay. Questions have to be submitted by 5 o'clock
    Wednesday, additional questions. But go ahead, Senator Lee.
        Senator Lee. Okay. Ms. Kephart, what specific border
    security measures does this bill require in the non-high-risk
    sectors?
        Ms. Kephart. I have also struggled to review the bill in
    that level of detail. In terms of the non--the other six
    sectors, they are not emphasized, so what I do not understand
    about the bill is why are we saying three of nine. Why are we
    not saying all the sectors need to attain a 90-percent
    effectiveness rate and then make that effectiveness rate
    something that we can actually have a 100-percent detection
    rate--which we cannot right now.
        And also, I have another problem with the effectiveness
    rate, too. If we are only focusing on apprehensions and
    turnbacks, what happens to the Border Patrol work on
    contraband, on weapons, on drug loads? Does that roll back and
    because a non-priority because they have to focus on the
    apprehension number?
        So I added that in as well, Chairman. I hope that is okay.
    But I do not understand why we do not have it as a broad-
    based--every sector can be a high risk because we know that the
    flows move. And it is a very stiff rubric as well, because it
    is only annual. That shift can only happen between sectors as
    determining them high risk on an annual basis. Smugglers move
    every few weeks.
        Senator Lee. Okay. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Schumer. I would just add that we do not just add
    new responsibilities but $3.5 billion for personnel, detection
    equipment, drones, you name it, which is a lot. We added about
    six--Senator McCain and I added about $600 million to border in
    2010. The overall effectiveness rate went up from 68 to 82. We
    are adding 3.5 times that, if you include the fence--or 3 times
    that, and if you include the fence money that Senator Rubio
    pushed in the bill, that is 4.5 billion, 4.5 times that. And so
    most experts think you are going to get a much higher effective
    rate without deterring people from doing those other charges.
    We are not just giving them new responsibilities. We are giving
    them new personnel, new equipment, things like that.
        With that, I want to thank my colleagues for staying. I
    want to thank our witnesses. It has been a long day. I want to
    thank Chairman Leahy. This has been a thorough, extensive
    hearing. All different points of view were able to be spoken
    about. And tomorrow at 9:30, Secretary Napolitano will be here.
    Again, until Wednesday evening to submit questions in writing,
    and then the panelists will have a week to answer those, long
    before we go to markup in early May.
        With that, the hearing is adjourned.
        [Whereupon, at 5:16 p.m., the Committee was adjourned.]
        [Additional material submitted for the record for Day 1
    follows Day 2 of the hearing.]

                         THE BORDER SECURITY, ECONOMIC
                          OPPORTUNITY, AND IMMIGRATION
                           MODERNIZATION ACT, S. 744

                                  ----------

                            TUESDAY, APRIL 23, 2013

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:33 a.m., in
    Room SH-216, Hart Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Feinstein, Schumer, Durbin, Whitehouse,
    Klobuchar, Franken, Coons, Blumenthal, Hirono, Grassley, Hatch,
    Sessions, Graham, Cornyn, Lee, Cruz and Flake.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Chairman Leahy. Good morning everybody. I know we are
    running a bit of a tight schedule. The Secretary has to testify
    on Appropriations later today, but I do want to commend you,
    Madam Secretary, and the men and women of the Department of
    Homeland Security who worked so hard on the coordinated
    national security effort in Boston.
        I have had middle of the night, early morning, middle of
    the day briefings on what has happened. The way your
    department, local and State police, the FBI worked together is
    a model for the rest of the world, especially how quickly
    everybody was able to move. The Patriot Day bombing,
    identification and successful capture of the remaining suspect
    of course is why you were not here that day when we talked. I
    well understood what your schedule looked like and it was time
    for you to be in the command post.
        Now, a number of Republican senators were not part of the
    bipartisan legislative effort for comprehensive immigration
    reform demanded in March that you return to the Committee to
    testify about the workability of this. You had been here in
    February and you testified extensively about this effort, but I
    thank you and I asked you to come back and you said you were
    perfectly willing to. I think it is a testimony to your
    longstanding commitment to reforming the immigration system,
    you are willing to return just two months after your last
    appearance here and of course some sleepless nights with what
    has happened in the last few days.
        It would be an easy thing to just talk about last week. I
    would remind all Senators that this is their opportunity to ask
    you directly about the Border Security, Economic Opportunity,
    and Immigration Modernization Act which of course is why you
    are here.
        This is a member of the cabinet that is going to be
    directly involved in implementing this legislation. I repeat,
    as I have said before, that you and President Obama have done
    more in the administration's first four years to enforce
    immigration laws and strengthen border security than in years
    leading up to this administration.
        You have more than 21,000 agents in the border patrol, more
    than any point in history, new technologies have been deployed
    to the border. Apprehension along the border is the lowest we
    have seen in decades because people are deterred from trying to
    cross.
        According to the report by the Migration Policy Institute,
    the United States now spends more money on immigration
    enforcement agencies than it does in all our major Federal law
    enforcement put together. I think it is time to start talking
    about reforming the immigration system.
        We are doing more enforcement than ever before, but that
    should not be a bar to having good immigration reform. It is
    long past time for us to reform our immigration system. We need
    an immigration system that lives up to American values, one
    that allows families to be reunited and safe, one that treats
    individuals with humanity and respects due process and civil
    liberties, one that shields the most vulnerable among us,
    including children and crime victims and asylum seekers and
    refugees, one that helps to reinvigorate our economy and enrich
    our communities.
        I have commended Senators Schumer and McCain, Durbin,
    Graham, Menendez, Rubio, Bennett, Flake and Feinstein for their
    extraordinary work here. I am concerned that what some are
    calling triggers could long delay green cards for those who
    want to make full and contributing participation in our
    society. I do not want people to move out of their shadows but
    then be stuck in some kind of an underclass once they have
    moved out of the shadows, just as we should not fault DREAMers
    who are brought here as children. We should not make people's
    fates and future status depend on border enforcement conditions
    over which they have no control.
        I am disappointed the legislation has not treated all
    American families equally. I believe we have to end the
    discrimination to gay and lesbian families facing our
    immigration laws. I am concerned about changing the visa system
    for siblings and I am concerned about how the new point-based
    visa system will work in practice. I really have to question
    whether spending billions more on a fence between the United
    States and Mexico is really the best use of taxpayer dollars in
    a country that we are furloughing air traffic controllers
    because we cannot pay for them.
        Throughout our history, immigration has been an ongoing
    source of renewal of our spirt of our creativity, our economic
    strength. Young students brought to this country by their
    loving parents seeking a better life, hardworking men and women
    who play by the rules supporting our farmers, innovating for
    our technology companies or creating businesses of their own,
    Google, Intel, Yahoo, other companies that then hire hundreds
    of thousands of Americans. Our Nation continues to benefit from
    immigrants. So let us uphold the fundamental American values of
    family, hard work and fairness. Values my parents inculcated in
    their children and my immigrant grandparents inculcated in
    theirs.
        The dysfunction in our current immigration system affects
    all of us. It is time to fix it. The opportunity is now.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Senator Grassley.

               OPENING STATEMENT OF HON. CHUCK GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. Without repeating the Chairman, I thank
    you for the work that you were involved in in Boston as well.
    We welcome you, Madam Secretary. I appreciate your being here
    today to discuss the immigration bill that this Committee will
    be taking up in about 16 days.
        The bill before us is a starting point. Most, if not all,
    of the Members of the Group of Eight have acknowledged that the
    bill is not perfect. It will go through an amendment process. I
    am encouraged to see that one cosponsor of the bill is taking
    suggestions on his website of how to improve the legislation.
    We hope to have the opportunity to do just that. There are 92
    other Senators that must get their chance to amend and improve
    the bill.
        As I said yesterday, we have a duty to protect the borders
    and the sovereignty of this country, but I am concerned that
    the bill we are discussing repeats the mistakes of the past and
    will not secure the border and stop the flow of illegal
    migration.
        Yesterday I brought up the border security language
    contained in the bill. Not one person disputed the fact that
    legalization begins upon submission of both a southern border
    security and fencing strategy. Thus, the undocumented become
    legal after the plans are submitted despite the potential that
    the plan could be flawed and could be inadequate.
        Once the Secretary certifies that the security and fencing
    plans are substantially deployed, operational and completed,
    green cards are allocated to those here illegally. There is not
    much of a definition of substantially in the bill. Agricultural
    workers and Dream Act youth however are put on a different and
    expedited path.
        If enacted today, the bill would provide no pressure on
    this Secretary or even any future Secretary to secure the
    borders.
        Madam Secretary, you have stated that the border is
    stronger than ever before. You have even indicated that
    Congress should not hold up legalization by adding border
    security measures and requiring them to be a trigger for the
    program. Every Senator that I have heard on this subject has
    said that borders must be secured. Short of that, this bill
    makes the same mistake that we did in 1986 and surely we do not
    want to screw up like we did 25 years ago.
        I am interested in hearing from you, Madam Secretary, about
    what problems the bill fixes in our current immigration system,
    aside from legalizing those who are here illegally and
    potentially for their family members who have yet to arrive and
    the clearing of backlogs, what does the bill do to fix the
    system?
        I am concerned that the bill provides unfettered and
    unchecked authority to you and your department and your
    successors. On almost every page there is a language that
    allows the Secretary to waive certain provisions of the law. I
    have not encountered it yet but I have heard every other page
    has some sort of a waiver in it, so that could add up to 400.
        Worse yet, the Secretary may define terms as she sees fit.
    The Secretary has $6.5 billion immediately at disposal with no
    accountability to Congress, she can excuse certain behavior,
    determine what document or evidence is successful, exempt
    various criminal actions as grounds of inadmissability and of
    course it reminds me as I said yesterday of the 1,693
    delegations of authority in the Health Care Reform Bill that
    makes it almost impossible for the average citizen to
    understand or predict how the law would work.
        I think it does not apply just to this bill, but we have
    got a situation that Congress ought to legislate more and
    delegate less. There is a lot of talk about immigration reform
    in the light of recent terrorism cases. I have not advocated
    that we quit talking about immigration reform, rather I am
    advocating that we carefully review the immigration laws and
    the administrative policies in place to ensure that we are
    addressing critical national security issues.
        The tragic events that occurred in Boston and the potential
    terrorist attacks of the U.S. Canadian railroad are reminders
    that our immigration system is directly related to our
    sovereignty and national security matters.
        For example, we know that the 9/11 hijackers abused our
    immigration system by overstaying their student visas. We also
    know that people enter illegally and stay below the radar. It
    has been reported that the older Boston bomber traveled to
    Russia and his name was misspelled on his airline ticket, so
    how could authorities not realize that he had departed the
    United States?
        The bill before us weakens the entry/exit system because it
    does not require biometric identifiers and does not deploy a
    biometric system to land ports. If this bill were to pass as
    is, we will continue to rely on airline personnel to properly
    type a name into a computer and not on biometric identifiers.
        Moreover, if the background checks on the 12 million people
    who are here illegally are anything like they were in the
    Boston bomber, we are in serious trouble. If these two
    individuals used our immigration system to assist their
    attacks, it is important to our ongoing discussion. Moreover,
    if the background checks on the 12 million people who are here
    illegally are riddled with problems that appear to be involved
    in this case, it raises serious questions about the
    Department's ability to properly investigate such individuals.
        Yesterday we heard testimony that the immigration bill
    would weaken asylum law. The asylum fraud is a serious problem.
    Courts are clogged with asylum cases and it is no secret that
    terrorists are trying to exploit the system.
        The bill would do away with one year bar that makes aliens
    come forward in a reasonable time frame if they are seeking
    asylum. It also allows any individual whose case was ever
    denied based on the one year bar to get their case reopened.
    Those who file frivolous asylum applications can still apply
    for legalization program despite the current provision that
    bars any relief under the immigration law.
        One witness also testified that the bill provides
    exemptions for certain criminals, making some eligible for
    legalization under this bill. Those who have been convicted of
    serious offenses may still have the ability to apply for the
    registered provisional immigrant status.
        We also heard testimony from an immigration and customs
    enforcement agent about the inability of our agents in the
    field to do their jobs. The group that devised this bill
    refused to hear from enforcement agencies. It seems unthinkable
    that law enforcement would be left out of the room when the
    bill was put together.
        Finally, nothing in the bill deals with student visas or
    improving the way we oversee schools who accept foreign
    nationals. Yesterday over a decade after 9/11, a terrorism case
    has come to light that may involve an individual who overstayed
    student visas. These are important national security matters
    and are worthy of our discussion as we work on the
    comprehensive immigration bill. I look forward to the testimony
    today.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you. Madam Secretary, it is over to
    you.

    STATEMENT OF HON. JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT
                  OF HOMELAND SECURITY, WASHINGTON, DC

        Secretary Napolitano. Thank you, Chairman Leahy, Senator
    Grassley, Members of the Committee. I appreciate the
    opportunity to appear again to discuss the need for common
    sense comprehensive immigration reform. First let me say a few
    words about the attack in Boston.
        Our thoughts and prayers remain with the victims, their
    families and with the City of Boston. DHS continues to support
    the ongoing investigation, working closely with the FBI, our
    Federal and our State and local partners, and I know all of us
    here are committed to finding out why this happened, what more
    we can do to prevent attacks like this in the future and making
    sure those responsible for this unconscionable act of terror
    face justice.
        We will learn lessons from this attack, just as we have
    from past instances of terrorism and violent extremism. We will
    apply those, we will emerge even stronger. In this case, law
    enforcement at all levels joined together and shared knowledge,
    expertise and resources. Many had been specifically trained in
    improvised explosive device threats and many had exercised for
    this very type of scenario.
        The response was swift, effective, and in many ways will
    serve as a model for the future. I think the people of Boston
    and the greater Boston area showed tremendous resilience over
    the past week and so did America.
        Today, after ten years of investments and training and
    equipment and improved information sharing, our cities and
    communities and our Nation are stronger, more prepared and
    engaged and better equipped to address a range of threats.
        This legislation will build on these gains, strengthening
    both our overall national security posture and our border
    security. The draft bill captures the core principles
    annunciated by President Obama in Las Vegas and reflects the
    bipartisan spirit necessary to achieve comprehensive
    immigration reform.
        The bipartisan work reflected in this bill will strengthen
    security at our borders by funding the continued deployment of
    manpower, infrastructure, air cover and proven effective
    surveillance technologies along the highest traffic areas of
    the southwest border.
        These efforts have already significantly reduced illegal
    immigration and increased our seizures of drugs and contraband.
    They must be strengthened and sustained. The draft bill does
    this. The bill also helps eliminate the jobs magnet that fuels
    illegal immigration. It holds employers accountable for
    knowingly hiring undocumented workers and requires the
    mandatory use of employment verification.
        Employment verification actually supports strong border
    security. It also supports the integrity of our immigration
    system and the American economy by providing businesses with a
    clear, free and efficient means to determine whether their
    employees are eligible to work here.
        By helping employers ensure their work force is legal, we
    promote fairness, prevent illegal hiring that serves as a
    magnet for undocumented migration across our borders, and we
    protect workers from exploitation.
        Consistent with the President's principles, the bill also
    provides a pathway to earn citizenship for the millions of
    individuals currently in our country illegally. We must bring
    these people out of the shadows. Many have been here for years
    raising families, paying taxes and contributing to our
    communities and to our economy.
        Knowing who they are is critical to public safety. Indeed
    as we just saw in Boston, information from our legal
    immigration system often supports response and investigation.
    It must be evident from the outset that there is a pathway to
    citizenship, one that will not be quick or easy, but that will
    be fair and attainable.
        Individuals will need to comply with many requirements,
    including documenting a history of work, paying penalties and
    taxes and learning English. DREAMers and immigrant farm workers
    will also be included, and those who complete the rigorous
    requirements will be able to achieve lawful, permanent resident
    status more quickly.
        Lastly, the bill will improve our legal immigration system.
    It raises the arbitrarily low caps on legal visas so that the
    visa system as a whole better matches the needs of our growing
    economy. It continues to protect vulnerable immigrants,
    including victims of crime and victims of domestic violence and
    it creates new temporary worker programs to enable critical
    industries to address labor shortages while protecting American
    workers.
        Businesses of all kinds and sizes must be able to find and
    maintain a stable, legal workforce if our economy is to
    continue to grow.
        As we make it easier for businesses to get the workers they
    need legally and more difficult for undocumented workers to
    find jobs, this will relieve pressure on the border and reduce
    illegal flows.
        The majority of Americans support these common sense steps
    and DHS is ready to implement them within the time lines that
    the draft bill provides. We can and we will achieve the core
    provisions of the bill. The time to modernize our immigration
    system is now. We stand ready to work with this Committee and
    with the Congress to achieve this important goal.
        The introduction of this legislation is indeed a milestone,
    so I thank the Committee for your progress in developing a
    comprehensive immigration package. I look forward to continuing
    to work with you and to answering your questions today. Thank
    you, Mr. Chairman.
        [The prepared statement of Secretary Napolitano appears as
    a submission for the record.]
        Chairman Leahy. Well, thank you and thank you again for
    what is an extraordinary busy time in being here. The
    bipartisan bill before us requires an additional $1.5 billion
    be spent to build more portions of a fence along the southern
    border.
        We built 650 miles of fence along the border. DHS estimates
    that cost at $2.5 billion. I remember you saying in 2005, show
    me a 50 foot wall and I will show a 51 foot ladder. More
    fencing would not have done anything about the case in Boston.
        We have limited resources. Considering that significant
    gains have been made in the last 4 years, is $1.5 billion the
    most cost effective way to spend what are, after all, limited
    resources?
        Secretary Napolitano. Mr. Chairman, obviously if the
    Congress decides that is where they want to put some money, we
    will comply. But I will share with you that we would prefer
    having money not so designated so that we can look at
    technologies, they can be ground based, air based, what have
    you, manpower, other needs that may be more fitting to actually
    prevent illegal flows across the southwest border.
        If we had our druthers, we would not so designate a fence
    fund per se.
        Chairman Leahy. You would like flexibility?
        Secretary Napolitano. We would like flexibility.
        Chairman Leahy. I assume that there is an annual
    maintenance cost to $1.5 billion worth of fence?
        Secretary Napolitano. Yes. There is operation and
    maintenance cost, and when you drive the fence or ride the
    fence, there are holes put in it, et cetera, et cetera. We are
    very good at building the infrastructure now. We know what
    works better than what we started with, but it is not just
    building, it is maintaining.
        Chairman Leahy. We also have environmental questions,
    wildlife questions, people's property along the border.
        Secretary Napolitano. Yes. In fact the last remaining mile
    that we have not completed of the fence that the border patrol
    has designated has not been completed because it is still tied
    up in property litigation.
        Chairman Leahy. Former Secretary Chertoff waived a range of
    Federal environmental and historic preservation and other laws
    for purposes of fence construction. This bill also provides
    waiver authority.
        What goes into your thinking of when and if you waive that
    authority?
        Secretary Napolitano. Well, it is a very careful process
    and I will begin by saying that we now have MOUs with the
    Department of Agriculture, Department of Interior concerning
    the Federal lands that are along the border that grant us, for
    example, access to build infrastructure, access if we are in
    pursuit and those sorts of things. So some of those logistical
    problems that existed before have really been worked out.
        Obviously when you build a fence and it goes right through
    the middle of a downtown area or right through a university
    campus, and we have had those situations, there are lots of
    values to be considered.
        Chairman Leahy. When you were here a couple of months ago
    speaking of immigration, I explained my concern about proposals
    and where citizenship is always over the next mountain. I want
    the pathway to be clear. I want citizenship not to be just
    available but attainable. Sometimes they are two different
    things.
        This legislation has several triggers that have to be met
    before people could earn green cards. People come forward, wait
    for ten years to get their green cards, but then they go in a
    state of limbo. That worries me.
        Are the triggers in the legislation truly attainable?
        Secretary Napolitano. As I review the legislation, there
    are really three triggers. One is the submission of the plans
    and their substantial completion as Senator Grassley referred
    to, one is the implementation of a national employer
    verification system, and one is the implementation of an
    electronic entry/exit system. Those particular triggers, if you
    want to call them that, are already part of our plans and I
    believe that we can satisfy them in the upcoming years.
        Chairman Leahy. Well, and lastly I want to keep on time
    here. In the wake of the Boston bombings, some have raised
    concerns about the security screenings we have in place for
    those that are seeking asylum here in the United States.
        Now, I do not believe the Boston bombing is a reason to
    stop progress or consideration of this legislation. I trust our
    law enforcement people to be able to handle that case and our
    courts are the best in the world. I have no worry about that,
    but even those who oppose this legislation, they have got to
    recognize there are several provisions to make our country
    safer.
        Can you tell us about the security screening that is
    currently in place for refugees and asylum seekers and does
    this legislation help or hinder that?
        Secretary Napolitano. Well, if I might, let me start with
    what the process is now and share with the Committee that over
    the past four years, we have increased both the number and the
    coverage of the vetting that goes on. But if someone is seeking
    asylum, they first have a so-called screening interview to see
    whether they have presented any sort of credible fear of
    persecution.
        That includes collection of biographic information and
    biometric information. That is all run against all law
    enforcement holdings and also the holdings of the NCTC and also
    virtually every DOD holding.
        At the second point in the process, they submit to a full
    scale interview. This can be several hours. It is usually
    accompanied by affidavits and other supporting documentation.
    One of the things we do there, by the way, is we re-fingerprint
    the individual to make sure it is the same individual who
    originally presented, so we have identify verification. We
    again vet, we run through all the databases and so forth.
        After the presentation to the asylum officer, there is
    review by a supervisory officer as well to look at consistency.
    All the way through they are looking at things like country
    conditions, other information that we gather.
        After a year, you can convert to LPR status, green card
    status. At that point you are vetted yet again, run against all
    the law enforcement databases, all the NCTC databases and so
    forth.
        After five years, you can apply for naturalization. At that
    point, you are vetted again and you are re-interviewed again.
    Lastly, if you are granted naturalization between then and the
    actual ceremony, right before the ceremony we re-vet everyone
    for a final time. That is the current situation.
        The existing bill builds on that. One of the important
    things the existing bill does, quite frankly, from a law
    enforcement perspective is bringing all of the people out of
    the shadows who are currently in the shadows. That RPI process
    is very, very important.
        Chairman Leahy. Thank you.
        Senator Grassley.
        Senator Grassley.
        We heard testimony yesterday and I think I would have to
    say that I share this feeling that there is principle behind
    this legislation of legalize now, enforce later. Now, you can
    disagree with that, but that is where I am coming from.
        Secretary Napolitano. Yes.
        Senator Grassley. I also assume that you read the bill and
    if I am wrong on that, let me know because my questions come to
    some specifics within the bill.
        Do you agree with my opening statement that upon enactment,
    the bill simply requires security and fencing strategy to be
    submitted by your department before legalization begins?
        Secretary Napolitano. It requires submittal of the plans
    both for infrastructure and for border security, two different
    plans----
        Senator Grassley. Yes.
        Secretary Napolitano. And substantial completion.
        Senator Grassley.
        All right. Can you tell the American people now why they
    should trust the purposes of legislation to secure the border
    after 12 million people get legal status, driver's licenses,
    work permits and the ability to live and work freely in the
    country?
        Secretary Napolitano. Well, I think a couple of very
    important things. Number one, the bill builds on the very large
    investment the country has already made in the southwest border
    and sustains that. I can say as a former Governor and Attorney
    General from that area, it is the sustainment part that is so
    very important because that is where we have experienced gaps
    in the past, so the bill guarantees that we build on that.
        Secondly, the bill actually supports border security in a
    way I suggested in my opening comments, which is to say two
    major drivers of illegal migration across that southwest border
    are labor and the fact that it takes so long to get a legal
    visa. The bill deals with both of those problems in a way that
    gives us more measurements, more metrics, more identities, more
    things that we can use from a law enforcement purpose, so it
    actually supports in that fashion the border security measures
    already in place.
        Senator Grassley. The bill prohibits immigration officers
    from removing aliens who ``appear eligible'' for legalization
    until a final decision has been made on the application.
        Does this bill tie the hands of immigration agents in the
    same way that the 1986 amnesty prevented them from enforcing
    the immigration laws?
        Secretary Napolitano. I do not believe so, Senator. I think
    that what the bill does in effect say get the RPI process up
    and running, move it as quickly as possible, do the background
    checks, do the security checks, get the identifications out and
    during that period do not remove somebody who is not a priority
    individual.
        Senator Grassley. Yes. I thank you for starting out your
    statement in reference to the Boston situation, so I feel
    comfortable asking this question.
        Several media outlets have reported that two individuals
    responsible for the tragic bombings were immigrants from
    Chechnya. Before the brothers became the focus of the
    investigation, authorities questioned a Saudi student who
    reportedly was on a terrorist watch list.
        I sent a letter to you this morning asking for answers to
    questions about the bombers and how they interacted with your
    agency. I trust that you would promptly respond given the
    impact that this could have on the immigration debate
    questions.
        With regard to the Saudi student, was he on a watch list?
    And if so, how did he obtain a student visa?
        Secretary Napolitano. He was not on a watch list. What
    happened is this student, really when you back it out, he was
    in the wrong place at the wrong time. He was never a subject.
    He was never even really a person of interest. Because he was
    being interviewed, he was at that point put on a watch list and
    then when it was quickly determined he had nothing to do with
    the bombing, the watch listing status was removed.
        Senator Grassley. All right. In regard to the older brother
    of the two people, was your department aware of his travels to
    Russia? If you were not, the reason.
        Secretary Napolitano. The travel in 2012 you are referring
    to?
        Senator Grassley. Yes.
        Secretary Napolitano. Yes, the system pinged when he was
    leaving the United States. By the time he returned, all
    investigations had been--the matter had been closed.
        Senator Grassley. Is it true that his identity document did
    not match his airline ticket? If so, why did TSA miss the
    discrepancy?
        Secretary Napolitano. There was a mismatch there. By the
    way, the bill will help with this because it requires that
    passports be electronically readable as opposed to having to be
    manually input. It really does a good job of getting human
    error, to the extent it exists, out of the process.
        But even with the misspelling, under our current system
    there are redundancies, and so the system did ping when he was
    leaving the United States.
        Senator Grassley. I am done, but can I make a correction in
    my statement?
        Chairman Leahy. Certainly.
        Senator Grassley. It might leave a mis-impression. Where I
    said yesterday over a decade after 9/11 a terrorism case has
    come to light that may involve an individual who overstayed his
    student visa, I would have to say we just simply do not know.
    So my statement was incorrect on that point.
        Chairman Leahy. Thank you.
        Senator Feinstein.
        Senator Feinstein. Thank you very much. Welcome, Madam
    Secretary. I have five questions, so I am going to try and go
    very fast.
        Secretary Napolitano. I will try to answer very fast.
        Senator Feinstein. Great. The first one is on E-Verify. It
    is our understanding from your testimony in February that you
    are planning to develop a pilot E-Verify program for
    agriculture.
        I asked Chuck Connor who was representing the agricultural
    industry yesterday if they had heard of this and they had not.
    When will this begin and who is responsible for that
    implementation?
        Secretary Napolitano. It is under the implementation of
    CIS. We are exploring things like mobile sites that can be
    moved around to different fields and other rural areas that may
    not have offices. My dream would be to actually have some sort
    of app. But the bill, as you know, does not have the E-Verify
    for ag workers until year four.
        I am very comfortable sitting here today telling you that
    by year four we will have multiple ways by which employers can
    verify legal presence for work purposes.
        Senator Feinstein. Good. Will you have your people talk
    with Mr. Connor?
        Secretary Napolitano. Yes.
        Senator Feinstein. Thank you. Flight schools. A GAO report
    released last year found that many flight schools obtained
    student and exchange visitor program certification from
    Immigration and Customs Enforcement without being certified by
    the FAA.
        According to GAO, 167 out of 434 flight training schools,
    38 percent today do not have the required FAA certification. I
    am told ICE is often unaware of instances when the FAA revokes
    certification for flight training providers.
        I understand that ICE is working with FAA to address this
    issue. What updates and assurances can you provide about ICE's
    efforts to improve its communication with the FAA to address
    this issue?
        Secretary Napolitano. I think we are very far along. By the
    way, Senator, we are also moving from SEVIS I to SEVIS II which
    is a new system governing education institutions that educate
    student visa holders. This will also help solve that problem.
        Senator Feinstein. Yes, good. I will get to that in a
    minute. The asylum screening process in this bill. Under the
    present system as I understand it, applicants for asylum must
    undergo a credible fear interview to determine whether the
    applicant has a credible fear of persecution in his or her
    county of origin.
        If the screening officer determines that the individual has
    a credible fear, the application moves along for further
    consideration. This bill as I understand it streamlines the
    refugee and asylum screening process partly by allowing a
    screening officer to grant asylum immediately following a
    screening interview.
        If this provision were to become law, how would the
    Department ensure that asylum applicants are adequately
    screened for national security threats? Current DHS regulations
    permit USCIS to confer with the State Department to verify the
    voracity of an asylum applicant's claims.
        To what extent does USCIS use that authority and are there
    barriers that prevent full information sharing between the
    agencies? My concern is that it is not streamlined to the point
    where the checks are not adequate.
        Secretary Napolitano. First as I mentioned, we have greatly
    improved the information available from the get go in terms of
    what databases are checked. The law enforcement, the national
    security databases and so forth, and that starts from the
    beginning when we collect the initial biographic and biometric
    information.
        Secondly, with respect to the State Department, we have
    extensive and very good relations with the State Department in
    the refugee asylum area where the issue is credible fear.
        Senator Feinstein. All right, but you will check whether
    that is an accurate statement, whether credible fear exists?
        Secretary Napolitano. Yes. We do not take it at face value.
    There are a number of ways we look into it.
        Senator Feinstein. All right. Well, the concern is that
    this bill truncates the process as I understand it. I would
    just ask you to look at that.
        Now let me turn to what you just mentioned, the student
    visa fraud. This is something that I have been interested in
    since 9/11 when there was a lot of it in the country.
        I just looked at some schools going back to 2008, most in
    2011, some 14 schools, I am sorry to say 8 of them in my State
    of California where there are very suspicious activities going
    on.
        Now, if I understand this correctly, you have got 10,500
    schools approved by DHS to accept non-immigrant students and
    exchange visitors. Last year Senator Schumer and I sent a
    letter to Immigration and Customs Enforcement to express our
    concerns about student visa fraud and the lack of information
    sharing among various Federal agencies.
        The response letter that we received noted that ICE is
    developing a new database system called SEVIS II that will
    improve, theoretically, ICE's ability to monitor international
    students and the schools they attend.
        SEVIS II is expected to improve the ability to avoid fraud,
    of which there still is plenty. Is it on track to be fully
    operational by 2013 when this bill goes into effect?
        Secretary Napolitano. That is my understanding, yes,
    Senator.
        Senator Feinstein. We will count on it.
        Secretary Napolitano. It needs to be part of this. Again,
    it goes to the fact that this bill actually improves and builds
    on the security matters we already have at hand. So yes, we are
    well under way on SEVIS II and my anticipation is yes, it will
    be implemented by the end of the year.
        Senator Feinstein. Thank you.
        Chairman Leahy. So everybody knows, we are going to Senator
    Cornyn next and then Senator Klobuchar and then Senator Lee.
        Senator Cornyn.
        Senator Cornyn. Good morning, Madam Secretary. I want to
    start with something that I agree with you on and that is the
    set aside for border fencing. Texas is different, as you know,
    from Arizona and California and other places. While the border
    patrol has recommended some tactical use of fencing there, I do
    not believe and I do not think you believe, you can speak for
    yourself, that building a fence across a 2,000 mile southern
    border is the answer, that it is really a combination of
    tactical infrastructure, technology and boots on the ground.
        I would like to see a little more flexibility for the
    Department in coming up with the best strategy to actually
    achieve the goal, so you and I agree with each other on that,
    right?
        Secretary Napolitano. Let the record show we agree.
        Senator Cornyn. That is good. Good start. All right, now
    here is the harder part. That is in the bill, as you point out,
    there are different measures for effective control of the
    border and it calls for a 90 percent effectiveness rate.
        The problem I have is do you know how many people actually
    cross the border unbeknownst to the Department and effectively
    get away? In other words, we do not know the denominator, but
    we know the numerator because we know the people who are
    detained, but we do not know the people who actually attempt to
    get across and who are successful in doing so unbeknownst to
    the border patrol, do we?
        Secretary Napolitano. That is one of the problems with
    using effectiveness rate as your only measure. Now as we
    continue to buy and put in place all the technology according
    to the plans that we have now submitted to Congress for each
    sector along the border, I think we will have greater
    confidence that we will have situational awareness as to that
    denominator.
        I will share with you, Senator, that that is an inherent
    problem knowing the actual denominator.
        Senator Cornyn. I have always thought it kind of bizarre
    that we measure our success by the people we catch and do not
    focus on the people who got away as a measure of our lack of
    success, but it is an inherent problem as you point out.
        Secretary Napolitano. It is a number that is used as one of
    the many that taken together when you look at all the other
    statistics along the border give you kind of an overall
    picture.
        Senator Cornyn. Under the bill, the Department would have
    to gain effective control over high risk sectors along the
    border, and right now based on 2012 numbers, that would be
    Tucson, the Rio Grande sector and the Laredo sector, obviously
    two in Texas and one in Arizona.
        The problem with that is that if the cartels and the human
    traffickers know where the Department of Homeland Security is
    going to concentrate its efforts, they are going to reroute and
    redirect their efforts into the areas that are not as hardened
    and are not as secure. Would you not agree?
        Secretary Napolitano. This is the way I think it will work,
    Senator, which is to say first of all all sectors will have
    protection in them. The question is where you have basically
    surge, or even more protection and you want to put your
    resources where the traffic is greatest.
        If the traffic shifts, the resources will shift. The
    ability we have now is we are much better able to kind of
    predict ahead of time where we think some of that traffic is
    going to move and pre-position.
        Senator Cornyn. The bill provides for an annual review in
    terms of identifying which of those sectors, where the
    Department would concentrate its resources.
        Secretary Napolitano. Yes.
        Senator Cornyn. My concern is the cartels and the human
    traffickers are far more nimble and are able to--an annual
    decision just seems to me to be unworkable.
        Secretary Napolitano. If I might, Senator. That is what the
    draft bill provides, but we regularly review those numbers and
    make decisions, so we would not wait for an annual review to
    make adjustments.
        Senator Cornyn. Again on the number of people who get
    across who get away so to speak, there was a story in the Los
    Angeles Times, I am sure you are familiar with, talking about
    radar technology, VADER I think it is called.
        Secretary Napolitano. VADER. Yes, sir.
        Senator Cornyn. VADER, the story suggests that as many as
    half of the people who cross the border get away undetected by
    the Department of Homeland Security. Do you have any reason to
    disagree or differ with that estimate?
        Secretary Napolitano. Oh, yes. That story was unfortunate
    and misleading. It did not understand the technology which was
    just being tested, it has not even been used yet. We are taking
    something that was used in the battlefield and transferring it
    to the border and there are adjustments that have to be made.
        But it also did not take into account the fact that there
    were apprehensions being made around the aperture of the VADER.
    So I can give you a more detailed briefing in a more private
    setting which I think would be more appropriate, but I will
    tell you that article was very incomplete and very inaccurate.
        Senator Cornyn. I would welcome that. My last question, if
    I may. Since 1996, the law of the land has mandated the
    implementation of an automated entry/exit system. Here we are
    16 years later and it still has not been done.
        My question is what gives you any confidence that it will
    be done now under the terms in this bill if it has not been
    done over the last 16 years?
        Secretary Napolitano. Two things. One is that we have now
    enhanced our ability to, as I said before, use different
    databases and link them in different ways. We have already
    submitted to the Congress our plan for moving toward electronic
    verification upon air and sea exit. So that is the plan we are
    already implementing.
        In terms of a biometric exit, we have piloted that in
    Detroit and Atlanta. There were a lot of issues about it. One
    of the issues quite frankly, Senator, is our airports really
    are not designed to have those kind of exit lanes. Just a plain
    old architecture problem.
        We think we can basically achieve that with the electronic
    records verification that we are already putting into place
    according to a plan we have given to Congress, and that will be
    for both air and sea.
        Chairman Leahy. Thank you.
        Senator Cornyn. Thank you. I hope we get to land at some
    point in the future, too. Thank you, Mr. Chairman.
        Chairman Leahy. Thank you.
        Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
    you, Secretary, for being here. Thank you for all your good
    work last week.
        Last year a bipartisan group of Senators including myself
    introduced the JOLT Act which modernizes and expands the visa
    waiver program, reduces visa wait times. I think you know as
    the former Governor of Arizona which is a great tourism State,
    although not quite as good as Minnesota with our current foot
    of snow in April, but we have introduced this bill to speed
    things up and there have been some dramatic changes made
    already.
        I wanted to know if you support this part of the bill and
    if you think it is a good idea and what you think of using
    video conferencing more to try to speed up the numbers. As you
    know, we have lost 16 percent of the international tourism
    market since 9/11. We are finally seeing some improvements
    without changes to our security in terms of speeding up the
    times. Every point we add is over 160,000 jobs in America.
        Secretary Napolitano. Well, the administration is
    supportive of the JOLT Act. We are supportive of the visa
    waiver program with appropriate safeguards for security and
    video conferencing, we are using it in several other areas. So
    that is something that is really just a tactical decision. By
    the way, it was 90 degrees in Phoenix today.
        Senator Klobuchar. I get the message. But we have them all
    over America. Many local and State law enforcement officials,
    particularly those in border towns have had their resources
    stretched very thin.
        Can you speak to the potential benefits of this bill and
    the resources to State and local law enforcement agencies of
    passing this comprehensive reform and improving security on the
    border?
        Secretary Napolitano. Yes. I think the bill does an
    excellent job of putting more resources at the border and
    specifying resources to be used in a Stonegarden type of
    arrangement with our State and local law enforcement
    authorities along the border.
        I think there are some special provisions in there for
    Arizona, but it is a good and very supportive of State and
    local law enforcement provision with respect to the border
    security title of the bill.
        Senator Klobuchar. Very good. Going after fraud and abuse
    in Government programs is extremely important, including in the
    immigration area. DHS, the Department of Labor and the Justice
    Department have to use their auditing and prosecutorial
    authorities to combat the misuse of all of visa programs and
    protect foreign workers from abuse which really in turn
    protects American workers.
        Does this bill improve the tools and resources that the
    Government has to prevent or identify abuses and problems with
    our immigration system? What are the components of this bill
    and how do you think this helps?
        Secretary Napolitano. Yes. It really helps. The bill just
    increases the body of knowledge that we have available to us
    because it requires more by way of verification, by employers
    and employees. It requires a secure identification to be
    issued. It gives us more biometric capacity.
        We will also be able to take the RPI database and dump it
    into our photo matching database and that in and of itself will
    be very helpful.
        Senator Klobuchar. Right. I think that is something where
    we have all been talking about in the past week the difference
    of actually knowing who is here and being able to get that
    information which really eludes us right now.
        Secretary Napolitano. I think one of the real significant
    improvements made by this bill is to bring people out of the
    shadows, we know who they are, we know where they are. By the
    way, from a police perspective, once these people know that
    every time they interact with law enforcement they will not be
    subject to removal, it will help with the reporting of crimes,
    the willingness to be a witness and so forth.
        Senator Klobuchar. Right, and that gets to the last thing I
    was going to ask you about was an U visa program. As you know,
    we worked had to try to get that in the Violence Against Women
    Act. It is in there, but we were trying to expand the U visas
    available. You are a former prosecutor, I am a former
    prosecutor and we understand how perpetrators, especially
    rapists and domestic abusers use the law against victims. They
    basically say well, if you are going to report this, I am going
    to have you deported.
        Could you explain how the work of the Gang of Eight helps
    with public safety by protecting these victims so they are not
    afraid to come forward?
        Secretary Napolitano. Well, what the bipartisan bill does
    is it expands the number of U visas that are available and also
    the T visas that are available. So from a crime victim
    protection standpoint and our ability to prosecute those who
    are abusers, traffickers and so forth, it is very helpful.
        Senator Klobuchar. Thank you very much.
        Chairman Leahy. Thank you. I would just remind Members
    again that on Thursday we are going to meet at 9:30 instead of
    at 10:00 because of a security briefing we are having, a closed
    door briefing. At 10:30 we will have the bill that Senator Lee
    and I have, the Electronic Communications Privacy Act. I think
    it will go through well in the Committee, but we will need the
    quorum.
        Senator Lee, you are next.
        Senator Lee. Thank you, Mr. Chairman. I do look forward to
    that hearing. It is going to be a fun one. Thank you, Madam
    Secretary, for joining us today.
        Some of the questions that I have as I have read through
    this bill over the last few days relate to the amount of
    discretion that you were given, you and your successors and
    interest will be given over time should this become law. Some
    have suggested there are as many as 400 instances of
    discretion.
        I do not mean to suggest that administrative discretion is
    categorically bad. Sometimes it is necessary. But I want to
    look at a couple of instances where you have got discretion
    that would be vested in your office and ask you about how that
    might work.
        In establishing the border fencing strategy, you will have
    a certain amount of discretion as to how much additional
    fencing might need to be deployed on the southern border
    region. You will have discretion to certify when your fencing
    strategy is substantially complete.
        As I understand it, President Obama stated in a speech in
    El Paso in May, 2010 that he believed the border fence was
    basically complete. So one question I have for you, if you
    determine that little or no additional fencing along the
    southern border is necessary, When do you think is the soonest
    that you might certify that that has been completed?
        Secretary Napolitano. Well, if that part of the bill is
    passed as it is currently written, and Chairman Leahy and I
    already had a little colloquy about that, I think we would move
    very quickly.
        We have, as I said before, sector by sector technology
    plans. We have not been sitting back waiting for an immigration
    bill to pass to secure this border. So we would move very
    quickly to look at the overall fencing requirement.
        Senator Lee. Do you agree that the discretion that is
    granted to you under this bill should it be enacted into law
    could permit you to make a finding that it is complete, it is
    substantially complete without building any additional fencing?
        Secretary Napolitano. Well, right now the border patrol
    already pursuant to existing law and appropriations law has
    done an extensive study of where fencing makes sense along the
    southwest border. They determined that there were 653 miles
    where it actually makes sense, and as Senator Cornyn mentioned,
    there are vast stretches of the border where it does not make a
    lot of sense.
        Senator Lee. Sure, sure.
        Secretary Napolitano. Six hundred and fifty two miles of
    that have been completed. So I think what we would do should
    the bill pass is go back, look at the kind of fencing we have
    and say do we want to make it triple what it is, or taller than
    what it is, or something of that sort.
        But, we have continually looked at the infrastructure along
    the border from a security perspective.
        Senator Lee. All right. You also have discretion to waive
    grounds of inadmissibility on the part of would be RPIs related
    to criminal background. The language of the bill I believe says
    that you can do that for humanitarian purposes to ensure family
    unity or if such waiver is otherwise in the public interest.
        Once you decide to make such waiver, you have to apply it
    to the entire class of any persons who might be similarly
    situated with respect to their own eligibility or lack thereof
    for RPI status.
        In what situations do you think you might consider granting
    that waiver? The kind of waiver discussed at page 65 of the
    bill?
        Secretary Napolitano. Right. I am going to caveat all my
    answers as of what I know today verus what the bill may change
    to, so just with that in mind.
        Senator Lee. Right.
        Secretary Napolitano. But I could see that there would be
    consideration based on the age of a conviction, the type of a
    conviction, whether the individual was the primary wage earner
    for a family, not just a family member, the records since a
    prior conviction, that kind of inclusive evaluation of an
    individual.
        Senator Lee. All right. According to the bill at page 81 of
    the bill, an applicant for RPI status may not file an
    application for that status unless the individual has satisfied
    all tax obligations to the IRS, meaning Federal income tax
    since the date on which the applicant was authorized to work in
    the United States as an RPI.
        If the alien was authorized to work in the U.S. during the
    time in which he or she was legally authorized, would not those
    taxes have already been collected?
        As I understand it, as I read that language in the bill, it
    runs from the moment that the would-be RPI was made legal to
    work in the country. If they were not legally authorized to
    work in the country, is that really a significant restriction?
        Secretary Napolitano. Well, I think the issue, the intent
    of the bill is to make sure that anybody moving to RPI and then
    ultimately from RPI to LPR has paid all taxes and is paying all
    taxes.
        If the language has to be clarified, that is what the
    Committee process is for.
        Senator Lee. All right. Great. Thank you very much. There
    is more we could ask but I see my time has expired. I thank
    you. Thank you, Mr. Chairman.
        Chairman Leahy. Thank you very much. I see Senator Franken
    is not here, so Senator Coons.
        Senator Coons. Thank you, Chairman Leahy. I just wanted to
    at the outset thank you very much, Secretary Napolitano. DHS
    has a complicated, difficult, broad-ranging mission, and though
    it is just one department, it is responsible for a vast array
    of important goals at the same time and I am grateful for you
    doing your very best and for everyone in the Department doing
    your very best, particularly at this time when we opened this
    hearing with reflections on the tragedies in Boston and in West
    Texas, we are reminded of how grateful we are for everyone in
    law enforcement and public safety who helps protect us.
        I am from the Mid Atlantic, a region with many ports, and
    with the significant allocation of additional resources under
    this bill to the southwest border, what assurance could you
    give us that comprehensive immigration reform will not further
    degrade CBP's ability to perform its customs inspection mission
    at some of our vital ports around the country?
        Secretary Napolitano. Well, I think it is important, and as
    I review the bill and the intent behind the bill, it is to make
    sure that the additional activities are paid for through fees
    and fines and the like.
        Again, Senator, the other parts of the bill, the employment
    verification, the opening up and clarifying of the visa
    process, making more visas available both on a permanent and
    temporary worker basis, this will help the economy grow in
    every State.
        Senator Coons. There has been some discussion back and
    forth about discretion. Under current practice, DHS uses its
    discretion authority very sparingly. I think studies have shown
    roughly 1 percent of all cases. This legislation provides the
    Department with some additional discretion in deportation cases
    but with very significant limitations.
        Given what is proposed in the bill, how much more should we
    expect the Department to exercise its prosecutorial discretion
    say in cases where a U.S. national child would be directly
    affected?
        Secretary Napolitano. Well, I think we already do that
    pursuant to policy. That was one of the points of building some
    discretion into the enforcement of current law. So I think the
    intent of the bill, again, is to simply memorialize some of
    that in statute.
        Senator Coons. Under current practice, immigrants spend a
    significant amount of their time and resources obtaining basic
    information about their own cases before appearing in front of
    an immigration judge, and DHS has to spend significant staff
    time and resources because there is no discovery process.
        Each request for their own files has to go through a FOIA
    process. Would the Department have any objection to
    streamlining this process through simply providing appropriate
    portions of an immigrant's A-file in advance of a hearing?
        Secretary Napolitano. Provided we had the resources to pull
    the A-files, I would have no objection to that. We would have
    to see the actual language. One of the real logistical issues
    is some of these old A-files as you know are contained in large
    warehouses of paper files and caves.
        But given the resources, anything we can do to streamline
    the FOIA process would be something to be considered, yes.
        Senator Coons. Thank you. My impression is that following a
    9th Circuit decision in this area, the Department may have
    actually seen some benefit in terms of the overall efficiency,
    recognizing the resource limitations you point to.
        Secretary Napolitano. That is right.
        Senator Coons. My last question is about the E-Verify
    system. What privacy protections need to be put in place or are
    already in place to ensure employers do not misuse the system
    and how would this legislation improve on it?
        Given that DMV's in many States do not comply with their
    existing obligations under the so-called motor voter law, do
    you believe it would be constructive or appropriate to give
    these States additional funds with the assumption that they
    will meet their obligations to assist in E-Verify
    implementation?
        Secretary Napolitano. I believe the bill actually
    constructs an incentive program for States to have their DMVs
    put their driver's license databases into the E-Verify
    database, and that of course is something we greatly support. I
    think it would be very helpful.
        Senator Coons. Great. Madam Secretary, thank you very much
    for your leadership in this difficult and important area. Thank
    you for your answers today. Mr. Chairman?
        Chairman Leahy. Thank you very much.
        Senator Graham.
        Senator Graham. Thank you, Mr. Chairman. Thank you, Madam
    Secretary. It has been a real pleasure working with you and
    your staff on this very important topic of border security.
        Let me start with the waiver provisions as inquired by
    Senator Lee. It is my understanding that there is no waiver for
    an aggravated felony or felony or national security problem,
    that those three areas are not waivable, is that correct?
        Secretary Napolitano. That is my understanding as well,
    Senator.
        Senator Graham. I think the waiver he was talking about is
    in other areas and again, I think that is good to know that
    there is some discretion, but not in these areas.
        Now, about what we are trying to accomplish here. How much
    money have we spent on border security since 2005 or 2006?
        Secretary Napolitano. Billions.
        Senator Graham. All right. Multiple billions.
        Secretary Napolitano. Yes, sir.
        Senator Graham. I think we have 21,000 border patrol agents
    down at the border now?
        Secretary Napolitano. 21,370 I believe is today's count.
        Senator Graham. I think that is double what we had in 2005
    or 2006. Is that correct?
        Secretary Napolitano. At least doubled, yes.
        Senator Graham. At least doubled, and this bill adds 3,500
    more, is that correct?
        Secretary Napolitano. Well, it adds 3,500 more CBP
    officers. Yes, it does.
        Senator Graham. It adds more people to help secure the
    border.
        Secretary Napolitano. Who are stationed at the border. They
    may be at ports, not necessarily between ports.
        Senator Graham. But to enforce border security?
        Secretary Napolitano. Yes, indeed.
        Senator Graham. So we have doubled the number of border
    patrol agents since 2005 and 2006. This bill we are adding
    3,500 more customs and border patrol officers to help secure
    the border.
        Under this bill we are also trying to achieve a 24-hour a
    day, 7-day a week presence, situational awareness at the border
    by having more unmanned area vehicles, is that correct?
        Secretary Napolitano. Yes. I would mention there that I
    would include not just UAVs, but also different kinds of sensor
    and radar systems that work better in partial areas of the
    border.
        Senator Graham. We are going to spend $3 billion I believe
    on carrying out the border enforcement strategy?
        Secretary Napolitano. The initial phase, yes.
        Senator Graham. Initial phase, $1.5 billion to try to
    complete the fencing?
        Secretary Napolitano. Yes, and we have already had a
    colloquy about that.
        Senator Graham. All right, and flexibility is fine with me.
    We are also going to allow the National Guard to continue to be
    deployed to secure the border, is that correct?
        Secretary Napolitano. That is right. As the Governor who
    was the first to ask for the National Guard at the border, I
    really appreciate that mission assignment.
        Senator Graham. We are going to increase funding to
    increase the number of border crossing prosecutions in the
    Tucson area?
        Secretary Napolitano. Yes. I think it basically triples
    those under something called Operation Streamline.
        Senator Graham. So that is what we are doing to enhance the
    border itself. Do you agree with me that controlling jobs
    inside the country is just as important as securing the border?
        Secretary Napolitano. At least as important. As I have
    testified several times, that magnet of illegal labor is a
    major driver of illegal migration. Dealing with the worker side
    of this is so very important.
        Senator Graham. Eleven million are coming for employment.
    We are not being overrun by 11 million Canadians. They come to
    visit, they go back home, they live in a stable country with a
    stable government and a good economy.
        We are being overrun by people from corrupt and poor
    countries. They come here to work. Our theory is that not only
    should you secure the border, but the second line of defense is
    controlling a job so that if you get across the border, you
    cannot find a job because of E-Verify. Is that correct?
        Secretary Napolitano. That is the intent of the bill, yes.
        Senator Graham. All right. Now, 40 percent of the people
    here illegally never came across the border, they came in
    through a visa system at airports and seaports. One of the
    triggers in this bill is to get an entry/exit system up and
    running so we will know when a visa expires, is that correct?
        Secretary Napolitano. Yes, an electronic entry/exit
    system--air and sea, yes.
        Senator Graham. So the 19 highjackers on 9/11 were all
    students here on visas. Their visa expired and the system did
    not catch that, is that correct?
        Secretary Napolitano. That is correct. There are a number
    of ways that those highjackers would be revealed under the
    bill.
        Senator Graham. Now we have a pretty robust guest worker
    program providing legal labor to employers who cannot find
    American workers. That is part of the bill, is that correct?
        Secretary Napolitano. Right. Both for ag, but unskilled and
    high skilled.
        Senator Graham. So the combination of systems work in
    concert. Increasing border security through fencing, technology
    and manpower, controlling finally at a national level who gets
    a job plus providing access to legal labor as a multi-layered
    approach to trying to achieve border security.
        Do you agree that they all work in concert?
        Secretary Napolitano. It is an interwoven system,
    absolutely.
        Senator Graham. All right, and if we can make it better,
    let us do it. One last question. You said I think to Senator
    Grassley that the older brother, the suspect who was killed,
    when he left to go back to Russia in 2012, the system picked up
    his departure but did not pick up him coming back, is that
    correct?
        Secretary Napolitano. That is my understanding. I can give
    you the detail in a classified setting, but I think the salient
    fact there, Senator, is that the FBI TECS alert on him at that
    point was more than a year old and had expired.
        Senator Graham. The point I am trying to make is after
    having talked to the FBI, they told me they had no knowledge of
    him leaving or coming back. The name was misspelled. So I would
    like to talk to you more about this case, how this man left,
    where he went.
        When we say there was no broader plot here, I just do not
    know how in the world we know that at this early stage. As to
    the person giving information, suspect two, the 19-year-old, I
    would imagine he is going to tell us that his brother was the
    bad guy and he was a player and that was not that big a deal. I
    would be shocked if that is not the information received from
    the suspect. That is why I want more time to interview him
    outside of having a lawyer and investigate the case in a more
    thorough way. So we will talk about that.
        Secretary Napolitano. If I might, Senator.
        Senator Graham. Please.
        Secretary Napolitano. As you know, this is a very active
    ongoing investigation. All threads are being pulled. My
    understanding is there will be a classified briefing for the
    Senate this week.
        Senator Graham. I look forward to hearing it. Thank you.
        Chairman Leahy. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman and Madam
    Secretary, thank you for returning to testify before this
    Committee. We know that you have had and continue to have
    urgent matters that require your attention.
        I want to thank you for pointing out once again to this
    Committee that there are two main drivers of any goal of border
    crossings and one is labor and the second is that it takes so
    long to get a legal visa to come into our country and that this
    bill addresses both of these issues in ways that should have
    the effect of decreasing illegal border crossings. Is that
    correct?
        Secretary Napolitano. It does, and I think also by doing
    that allows us to focus our resources on those who are
    smugglers and narco traffickers and others who really are
    public safety or national security concerns.
        Senator Hirono. I think it allows our priorities to be
    where they ought to be in terms of enforcement. This bill
    overhauls the current system in ways that will certainly help
    millions of families reunite with their loved ones, but it will
    also dramatically restrict the abilities of some families to
    reunite with certain loved ones, and this is a particular
    concern to those who are on the wait list from Asia which is
    where the major backlogs are.
        I would like to continue to work with the Members of the
    Committee and with all of you to seek improvements on the
    family provisions to include LGBT families and children of the
    Filipino World War II veterans. These veterans have been
    waiting for decades to reunite with their children.
        I know that compromises needed to be made, but I do believe
    that there are some areas of this bill where it went farther
    than it needed to. Specifically this bill eliminates, after 18
    months, the sibling category and adult married children
    category and it replaces it with a merit-based point system.
        I believe that the new merit-based visa system will exclude
    many immigrant family members from reuniting with their U.S.
    citizen siblings, and of course we know how important siblings
    are as part of a nuclear family structure because they provide
    assistance with jobs and emotional and financial support. They
    provide care for family members.
        In addition, there are many times when for immigrants a
    sibling may be the only remaining member of their nuclear
    family. In fact I have met a number of people who have been
    waiting to reunite with their siblings.
        I am concerned that this bill will no longer provide a
    meaningful opportunity for U.S. citizens to petition for their
    siblings. My question to you, Madam Secretary, is what
    opportunities will siblings have of U.S. citizens to be able to
    immigrate to the United States under the provisions of this
    bill?
        Secretary Napolitano. Well, I think what the intent of the
    bill is in exchange for allowing the spouses and children of
    green card holders to be excluded, in exchange for the
    recapture provisions of unused visas and in balance with the
    increase in economic related visas, the sibling category was
    greatly restricted if not eliminated.
        But as you mentioned, there are other avenues such as the
    different work related visas that a sibling would be eligible
    for regardless. So there will be other avenues that a sibling
    could pursue.
        Senator Hirono. I know that this bill allows siblings to
    under the merit basis to get some points for being siblings.
    However, I had a hearing of this Committee relating to
    comprehensive immigration reform impact on women and children
    and it became clear that the majority, 70 percent, of immigrant
    women obtain legal status through family based immigration
    system.
        What do you think would be the impact of the merit-based
    system on women who have not had the kinds of education and
    employment opportunities that give them additional points that
    would allow them to score high enough to be able to come in
    under the merit-based system?
        Secretary Napolitano. I think it is difficult to answer
    that hypothetical right now. I think obviously again since
    spouses no longer count against caps, that is a big improvement
    where family unification is concerned, spouses of LPRs and
    children as well.
        I think that in and of itself is a major improvement and
    will deal with a lot of the backlog where women are concerned.
        Senator Hirono. I think there are probably some ways that
    we can allow for these kinds of family members to come in
    with--so that a nuclear family that consists just of sibling or
    of older married children, that issue can be addressed. I look
    forward to continuing to work with you. Thank you, Mr.
    Chairman.
        Senator Feinstein [presiding]. Senator Cruz.
        Senator Cruz. Thank you, Madam Chairman. Madam Secretary,
    thank you for joining us and thank you for the excellent work
    that you and your agency have done, in particular over the last
    week in dealing with and apprehending the Boston bomber. It has
    been a time of great trauma for the country and we are all
    celebrating that he was apprehended so quickly.
        Secretary Napolitano. Thank you.
        Senator Cruz. I would like to ask questions both dealing
    with process on this legislation and then also dealing with
    border security. Starting with process.
        My office received the text of this bill at 2:25 a.m. on
    Wednesday, April 17th, five days ago. The bill is 844 pages
    long. It is dealing with a very complicated topic.
        My first question is when did your office receive a copy of
    the bill as filed?
        Secretary Napolitano. About 3:00 in the morning. I think
    that is about right.
        Senator Cruz. In the five days since then when you have
    obviously been heavily focused on matters such as the Boston
    bombing, and quite properly focused on matters such as that,
    have you had the time to read all 844 pages of the bill?
        Secretary Napolitano. Actually, I have read the bill. I
    know many sections of the bill fairly well, so I was able to
    skim those sections, but I have been able to review the bill,
    yes, sir.
        Senator Cruz. All right. Then that has been a busy weekend
    for you.
        Secretary Napolitano. Yes, sir. Very busy.
        Senator Cruz. Let me shift to the question of border
    security. Metrics of border security are sometimes interesting
    because at times, public officials point to an increase in
    apprehension as demonstration that border security is working
    well, and at other times it seems officials point to a decrease
    in border apprehensions as evidence that border security is
    working well.
        I guess I am always a little skeptical of a statistic that
    regardless of what it demonstrates proves the end being put
    forth.
        Let me just ask an initial question. Have apprehensions
    increased or decreased?
        Secretary Napolitano. From when to when?
        Senator Cruz. From say last year to this year.
        Secretary Napolitano. Overall, apprehensions have stayed
    the same except with respect to the southern Rio Grande valley
    where we have had an increase primarily in illegal immigrants
    from Central America, not from Mexico.
        I can give you kind of chapter and verse on all that is
    being done there, but it has basically stayed the same in all
    the sectors except for that one geographic area.
        Senator Cruz. I guess I am a little puzzled because earlier
    this month you told reporters in Houston, and I believe this is
    a quote, I can tell you having worked that border for 20 years,
    it is more secure now than it has ever been. Illegal
    apprehensions are at 40 year lows.
        Secretary Napolitano. That is true.
        Senator Cruz. I want to understand. It goes back to the
    point I said that sometimes saying apprehensions are down is
    signs of success and at other times the argument seems to be
    apprehensions are up.
        Which is accurately describing what is happening at the
    border?
        Secretary Napolitano. Well, both are accurate. If you look
    at the border, San Diego to Brownsville, apprehensions are at
    40 year lows. The key thing is to sustain that.
        We know that we are currently having----
        Senator Cruz. Madam Secretary, if I can ask. You just said
    a minute ago they were higher this year than last year, so I am
    trying to understand how it can be a low and a high at the same
    time.
        Secretary Napolitano. One is referring to border-wide, one
    is referring just to the southern Rio Grande sector. In that
    sector, apprehensions are higher now. We know that traffic is
    higher now. Actions are being taken to turn that traffic back.
        Senator Cruz. So your testimony is border-wide,
    apprehensions are down. Is that right? I am trying to
    understand.
        Secretary Napolitano. I think what I just said, Senator, is
    it is about level with last year except with respect to south
    Texas.
        Senator Cruz. How does DHS measure border security? Prior
    to fiscal year 2011 DHS used a metric called operational
    control, and as I understand it, DHS is not using that anymore.
    Obviously this bill relies upon DHS having a sound metric for
    who is attempting to cross this country illegally and who is
    being prevented from doing so or apprehended.
        How does DHS actually figure out what is happening and
    measure success? As a component of that, why is it that the
    Department no longer uses the metric of operational control?
        Secretary Napolitano. We look at a number of things. We
    look at apprehensions, but not in and of themselves. We look at
    crime rates. We look at seizures, both inbound and outbound. We
    look at reports from those on the ground at the border.
        So it is a whole host of things. One of the things we are
    really looking for, Senator, is what is the trend? Is the trend
    pretty much all in a positive direction meaning the border is
    more secure or not?
        When we look at all of those things, then we can also make
    decisions about where we need to put even more resources.
        Chairman Leahy [presiding]. Thank you.
        Secretary Napolitano. For example, right now we know south
    Texas is problematic for us, but we are already and have been
    moving more technology, manpower, et cetera, in there. I bet we
    will see those numbers shift very quickly.
        Chairman Leahy. Senator Schumer.
        Senator Schumer. Thank you, Madam Secretary. First I want
    to thank you for the outstanding job that you are doing not
    only on this legislation but on so much else in terms of
    securing the border and all the other mandates that your
    position has.
        Second, I would just reiterate, this bill is going to be
    available for everyone to read for three weeks from the day it
    was introduced which is actually six days, not five days since
    Wednesday at 2 a.m. I was there, I introduced it.
        I would also say that we had Senator Grassley, and this is
    not casting an aspersions on Senator Grassley, he introduced an
    80-page gun bill at about 11:00 as I remember it on the day we
    voted on it at 2:00 or 3:00. It was a complicated bill. I did
    not hear any cry about it. The main point I want to make, there
    is going to be plenty of time for everybody to read the bill
    thoroughly and prepare amendments both for Members of this
    Committee and Members of the floor.
        I know there is sort of this view, well, this is just like
    health care, and it is not. The health care bill we started
    debating before it was even introduced. That is not happening
    here. We want just to say this--I think I speak for the eight
    of us who helped put this together. We want a robust Committee
    process because last time we did not have a Committee process
    and the bill collapsed on the floor.
        Now perhaps if the amendments that were offered on the
    floor would have been offered in Committee, compromises could
    have emerged, discussions could have emerged and we might have
    avoided that.
        To have an open, robust Committee process which the
    Chairman has agreed to is in our interest. No one is trying to
    rush this bill through in any way. I want to make that clear
    and I think I speak fully on behalf of the eight of us here.
        I would now like to talk about the border. Back in 2010 you
    may remember that Senator McCain and myself sent you the border
    bill that had a supplemental appropriation of about $600
    million, is that right?
        Secretary Napolitano. Yes.
        Senator Schumer. At that time the southern border as a
    whole had an effectiveness rate of 68 percent which meant that
    of every 100 people that our authorities saw, they were able to
    catch or turn back 68. After the border bill was passed and
    after that money was spent, it went up to 82 percent, is that
    correct?
        Secretary Napolitano. It sounds about right, yes.
        Senator Schumer. I believe that is the case. The
    immigration bill we are passing today actually appropriates
    $4.5 billion and up to $6.5, minimum of $4.5, the maximum of
    $6.5 over the next five years.
        Given that the $600 million we appropriated made such
    progress, can you tell us what kind of security impact we will
    have by appropriating more than ten times the amount in that
    bill? Does it not seem to you very logical that we are going to
    get a much higher effective rate than we have now?
        Secretary Napolitano. Yes, Senator. I think that is true. I
    think in particular in my view the key here is technology and
    air cover. Our ability to procure, install and implement the
    best available technology at that border as we are doing so
    now, but to be able to speed that up can only improve where we
    all ready are.
        Senator Schumer. Yes. Look, I went to the border. It was a
    revelation to me. Senator Flake and Senator McCain led a trip
    that Senator Bennet and I went on and it is clear that it is a
    huge vast border. I am from a little tiny State of New York.
    You cannot do it by just lining up people, you do not have
    enough.
        It is amazing, if you use air and particularly drones, you
    can actually figure out where the people are going and force
    them, apprehend them, 20, 30, 40, 50 miles inland and the
    drones have the ability to follow that. We certainly need more
    drones, we need more air, the people on the border made that
    clear to us and should increase the effectiveness rates
    dramatically in my opinion at least. Do you disagree?
        Secretary Napolitano. I do not disagree, and the technology
    I think as it is implemented will give us more confidence in
    the denominator which has always been one of the major problems
    in calculating effectiveness rates.
        Senator Schumer. Finally I just want to clarify, and
    Senator Grassley actually brought this up again, how we tighten
    up security. It is clear that Tamerlan Tsarnaev, they had no
    record of him going to Russia or coming back because his name
    was misspelled by Aeroflot where we do not have regulations, it
    being a foreign airline.
        Under our bill, everything would have to be passport or
    machine read so that type of mistake could not occur. So if our
    bill were law, is it a pretty safe guess that the authorities
    would have known that Tsarnaev left to go to Russia and knew
    when he came back?
        Secretary Napolitano. If I might, Senator, there are
    actually redundancies now in the system, so there was a ping on
    the outbound to customs. This is my understanding and this has
    been kind of a changing picture. But even regardless of that,
    anything that makes a requirement for machine readable gets
    manual inputting out of the system, improves security.
        Senator Schumer. Right. Thank you, Mr. Chairman.
        Chairman Leahy. Senator Flake.
        Senator Flake. Thank you. It was a revelation to go down on
    the border. We actually watched an illegal border crossing
    while we were there.
        Secretary Napolitano. And an apprehension.
        Senator Flake. As you heard, and an apprehension. And a
    quick one, too.
        Senator Schumer. They knew exactly where the person was
    climbing the fence would go. They said we are going to catch
    her in 20 minutes. And they did. It was amazing.
        Senator Flake. I think the woman who crossed heard Senator
    Schumer's accent through the fence and thought I am in New
    York, where is the Statue of Liberty? I am here.
        [Laughter.]
        Senator Flake. But, anyway, It was a good trip. It is
    always good to see the border and see what needs to go on
    there. Let me just touch on that for a second. You have talked
    about apprehension rate and there has been concern for awhile
    about the metrics.
        Is it true that what we are calling for in the legislation,
    the effectiveness rate, is pretty much what you do now in terms
    of--because Senator Schumer quoted some statistics from a
    couple of years ago. That is within what you are doing now, but
    now you will have more resources to do it, correct? Is that the
    net effect?
        Secretary Napolitano. Yes.
        Senator Flake. We know the denominator, the number of
    people who have crossed, but with better technology,
    particularly surveillance, we will be able to get a better
    figure there.
        Secretary Napolitano. Right. But realize too that no one
    number captures the evolving and extensive nature of the
    border. So that is why I keep saying there is no one metric
    that is your magic number 42 or something of that sort.
        These are indicators which taken as a whole give you a
    picture of the border and then are informed by what we are
    actually seeing.
        Senator Flake. I take it from your testimony you are
    comfortable that given the resources that are provided given
    where we are already that you will be able to achieve the 90
    percent effectiveness rate in the high risk sectors?
        Secretary Napolitano. Well, if we are not, the border
    provides then for the commission and additional resources, but
    let me just share with you that it is not just what is at the
    border. It is the E-Verify, it is the visas, it is improving
    the overall system so that we lessen the drivers of illegal
    migration.
        Senator Flake. Right. That is what I want to focus on next,
    the so-called second border or employer enforcement.
        Do you see any issues with moving ahead with being able to
    have E-Verify mandatory in the time table called for by the
    legislation? Is that achievable?
        Secretary Napolitano. It is achievable assuming the
    resources are available to CIS, but yes as I testified,
    assuming resources we will implement the bill with the time
    lines you have given us.
        Senator Flake. Identify fraud is kind of the Achilles heel
    of employer verification at present. The provisions called for
    in the bill, the photo tools and whatnot, do you see those as
    having an effect or helping in that regard?
        Secretary Napolitano. Absolutely. We are already doing
    photo match with things like passports, but putting for example
    all the RPI IDs into the employee verification database, very,
    very helpful. Also incentivizing States to put their motor
    vehicle records, their driver's licenses in the database, also
    very helpful.
        Senator Flake. Current concern is that E-Verify can tell if
    the social security number is valid, it just does not do very
    well in determining whether that is being used six times in
    other States. How does this legislation deal with that in your
    view?
        Secretary Napolitano. It allows us to implement a system
    that basically creates a lock on a social security number so if
    the same number is being used in several places, that gets
    flagged.
        Senator Flake. All right. So an individual can say all
    right, I have my job, I am going to lock my number so it cannot
    be used elsewhere?
        Secretary Napolitano. That is correct.
        Senator Flake. And if a number does pop up in Montana or
    New York or somewhere else, then that is flagged now where it
    currently is not?
        Secretary Napolitano. That is my understanding of the bill,
    yes, sir.
        Senator Flake. All right. Thank you. Thank you for your
    testimony.
        Chairman Leahy. Thank you.
        Senator Sessions.
        Senator Sessions. Thank you, Madam Secretary. This bill
    gives the Secretary, you, extraordinary discretion if it were
    to become law in making many, many decisions about how the law
    would be carried out.
        In light of what has been happening in recent months and
    years, that causes me a great deal of concern. In October of
    2011 in an oversight hearing, I shared with you the concerns
    that your ICE officers, your immigration customers enforcement
    officers, they described how your department has been more
    focused on meeting the special interest pro-immigration groups
    than supporting them and helping them accomplish what the law
    requires in this country.
        Since then, I have asked you have you met with those
    officers and you said no. Today have you met with the officers
    and the ICE Officer's Association?
        Secretary Napolitano. Have I met with union leadership? No.
    Have I spoken with ICE and border patrol officers in the field?
    Yes.
        Senator Sessions. Well, I think you should have met with
    them. I think there is a real problem there. We have a very
    real problem. In December of 2012, a few months ago, a survey
    of Federal agencies showed that morale of ICE employees had
    dropped in rankings to 279th out of 291 Federal agencies.
        Were you aware that the morale at ICE has plummeted?
        Secretary Napolitano. Yes. In fact, employee morale is a
    real concern of mine and it is not just with ICE, it is
    throughout the Department.
        Senator Sessions. Are you aware that a lawsuit has been
    filed? Are you aware that really two years ago a vote of no
    confidence in ICE Director John Martin was held and nothing has
    been done apparently to deal with his failed leadership at that
    agency?
        Secretary Napolitano. Senator, under his direction, ICE has
    actually increased its enforcement efforts. It has installed
    real priorities for the first time. He actually gets criticized
    for deporting too many people as opposed to not enough people.
        It is a difficult, difficult job to have, but when you look
    overall at the operation of ICE and where it was four years
    ago, they have removed more people, they have installed real
    priorities and we now have secure communities installed
    nationally. So I think----
        Senator Sessions. Well, I could not disagree more. I cannot
    disagree more about that. That is not what the officers are
    saying. That is not what Chris Crane, the head of the
    association testified to yesterday.
        Let me ask you this.
        Chairman Leahy. Let her answer the question.
        Senator Sessions. She was interrupting my comment.
        Secretary Napolitano. I apologize. I did not mean to
    interrupt.
        Senator Sessions. I just would say that I do not believe
    that is accurate. He testified that agents are prohibited from
    enforcing the law and indeed the ICE officers have filed a
    lawsuit.
        I started out as a Federal prosecutor in the Department of
    Justice in 1975. I have never heard of a situation in which a
    group of law officers sued their supervisor and you for
    blocking them from following the law. They were not complaining
    about pay, benefits, working conditions. They were saying their
    very oath they took to enforce the law is being blocked by
    rules and regulations and policies established from on high and
    that this is undermining their ability to do what they are
    sworn to do.
        Secretary Napolitano. May I respond?
        Senator Sessions. Yes.
        Secretary Napolitano. There are tensions with union
    leadership unfortunately, but here is what I expect as a former
    Federal prosecutor and attorney general.
        That is that law enforcement agents will enforce the law in
    accord with the guidance they are given from their superiors
    and that is what we ask of ICE, that is what we ask of border
    patrol, it is what we ask throughout the Department and I
    believe that would be consistent with all law enforcement.
        Agents do not set the enforcement priorities, those are set
    by their superiors and they are asked then to obey that
    guidance in accord with the law.
        Senator Sessions. Well, what Mr. Crane testified to was
    that there are law provisions that say agents shall do this,
    that and the other and that the policies set by their political
    supervisors refuse to allow them to do what the law plainly
    requires.
        You are not entitled to set policies, are you, that violate
    the mandates of congressional law?
        Secretary Napolitano. If I might, Senator. I disagree with
    almost everything you have said, but we will just have to
    respectfully disagree with each other.
        But I think it does point to why this bill needs to be
    passed, because what we want our officers doing is focusing on
    narco traffickers and human smugglers and money launderers and
    others who misuse our border and our immigration system by
    having a process by which those in the country illegally can
    pay a fine, pay fees, register so we know who they are by
    dealing with the employer demand for illegal labor, by opening
    up the visa system.
        That will have the effect basically of confirming the focus
    of resources where they need to be.
        Senator Sessions. Madam Secretary, I appreciate that but I
    am really worried about the vigor of this department and your
    leadership and Mr. Morton. I would note removals by ICE are
    down 40 percent than when Director Morton issued his 2011
    prosecution memorandum that basically undermined prosecutorial
    ability to function.
        Chairman Leahy. I think the Secretary has answered.
        Senator Sessions. That is why the morale is so low.
        Chairman Leahy. I think the Secretary has answered the
    question and of course filing a lawsuit does not mean the
    person filing it wins the lawsuit. Let us see how the lawsuit
    comes out.
        In the meantime, Senator Franken was here very early on?
    Please go ahead.
        Senator Franken. Thank you, Mr. Chairman. Before I begin,
    Secretary Napolitano, I want to thank you for your department's
    response to the Boston bombings. Our thoughts and prayers have
    been with you and all law enforcement and national security
    professionals in Boston and across the country. You did an
    outstanding job in quickly tracking down and capturing the
    perpetrators. Thank you for your work.
        Turning to immigration reform, I am going to focus my
    questions on some things I am a little worried about in the
    bill, but I just want to be clear that this overall package is
    a giant step forward, a giant step forward.
        I really believe this is going a long, long way to fixing a
    broken immigration system and it will help Minnesota businesses
    and families alike. My first question, Madam Secretary, is
    about the E-Verify mandate in this bill.
        I am worried that errors in the system are going to hurt
    legal workers and small businesses. Big companies have the
    resources to deal with this. They have big human resource
    departments. But I am worried about the small family business
    where the human resources department may also be the
    accountant, may also be the sales force, may also be your
    spouse.
        You do not have the time to deal with a system that is not
    working 100 percent properly. One in five businesses in
    Minnesota is a small business with 20 employees or less. The
    Department is currently self-reporting an error rate of 1 out
    of 380 workers. For every 380 people run through the E-Verify
    system, the Department says that one legal authorized worker is
    wrongly rejected, at least temporarily.
        Madam Secretary, that error rate is a lot lower than the
    last independent audit. Will the Department be able to maintain
    this kind of error rate in five years when the E-Verify mandate
    would apply to all American businesses?
        Secretary Napolitano. Senator, that is certainly our
    intention, and even to drive that error rate down. One of the
    other things we have added to the system is the ability of
    individuals to self-check where they are in the E-Verify so
    they can go online and check and see if their entry is adequate
    before they even apply for employment.
        We have also set up a very quick system where things can be
    corrected if an error rate occurs. But when you look at the
    history of the E-Verify system over the last six years, you
    have seen that error rate really substantially diminish. We are
    going to continue to work in that regard.
        Senator Franken. So you believe you can be there on that
    error rate or better?
        Secretary Napolitano. Yes.
        Senator Franken. All right. Good. Because an independent
    audit in 2009 as you know had a higher error rate, 1 out of
    every 140 kicked out a false negative. Someone who was a legal
    worker, and that sounds low, but you would not want that
    working on your credit card 1 out of every 140 purchases or
    your car starting or something.
        In the 2009 audit it took legal workers an average of 7 to
    13 days to get those errors fixed. I heard one account of a
    U.S. citizen, a former captain in the U.S. Navy with 34 years
    of service and a high level security clearance, he was flagged
    as an illegal worker and it took him two months to resolve that
    issue and I have heard similar complaints from employers in
    Minnesota.
        Madam Secretary, is it not critical that E-Verify have
    these low error rates and lower error rates if it will be
    mandatory for every business in the country including small
    businesses?
        Secretary Napolitano. Yes, and it will be important to
    continue to achieve that, Senator, that CIS get the resources
    needed for implementation of national verification.
        Senator Franken. That was that old 2009. I know that DHS
    has its own figures showing the lower error rate, but I think
    independent audits are what we need here and we are a matter of
    days to starting--we are discussing this bill now. We cannot
    legislate on a basis of a study that no one has seen. Would you
    pledge to us to release that data of that study?
        Secretary Napolitano. I do not know the specific data to
    which you refer, but let me----
        Senator Franken. The report. The report that you----
        Secretary Napolitano. If there is a report, we will make it
    available to you.
        Senator Franken. All right. Thank you. Finally, Madam
    Secretary, I wanted to thank you and your staff for providing
    me feedback on my bill, the Help Separated Children Act. This
    is a priority for me and so I hope I can count on you and your
    continuing help with that.
        Secretary Napolitano. Yes, sir. Absolutely.
        Senator Franken. Thank you so much. Mr. Chairman.
        Chairman Leahy. Thank you. Before I go to Senator Lee, I
    understood that Senator Durbin was here and wished to ask some
    questions. Senator Lee, if you could hold just a moment because
    Senator Durbin had been here earlier. I think he may have had
    to step out for a phone--he is not here? Senator Lee, go ahead.
    I promised you a second round. Please keep it to five minutes
    because the Secretary does have to go another----
        Senator Lee. Thank you, Mr. Chairman. Thank you, Madam
    Secretary. I wanted to correct something I said earlier. I
    cited that to page 81 when we were talking about the tax
    liability issue. That one does talk about the tax liability
    issue, only in the context of the renewal of the RPI status.
        What I should have referred you to was pages 68 to 69 of
    the bill, what would become Section 245BC2. The standard as it
    is stated is ambiguous as to when it would trigger the back tax
    liability. We will move on from that, but I just wanted to
    acknowledge that I had given you a citation error. The standard
    is in fact broad enough that it would give you discretion to
    identify as the Secretary what documentation they would have to
    prove in order to show that they had fulfilled their obligation
    to pay any back taxes. But we will move on from there.
        I wanted to talk about another provision, this one is on
    page 63 of the bill that deals with who is eligible and who is
    not eligible for RPI status.
        It waives ineligibility, inadmissability for RPI status for
    those who have received orders of deportation but have
    thereafter either absconded, meaning they did not leave the
    country but they fled after having been ordered deported or
    they had returned to the United States following an order of
    deportation after which they had returned to their home country
    or to another country.
        I am a little bit concerned that this provision in
    particular, separate and part from what anyone thinks about the
    rest of the path to legalization and eventual citizenship, that
    this might reward conduct that seems to be in pretty clear
    violation of a court order.
        Do you agree with this policy? Is this policy something
    that causes you concerns from an enforcement standpoint as the
    cabinet official in charge of enforcing our laws?
        Secretary Napolitano. Right. I have read the bill. I have
    not memorized the pages of the bill, but I believe the intent
    of the provision that you are citing is kind of a family
    unification provision in a sense that if somebody has been
    removed from the country and they would otherwise have
    qualified for RPI and they meet certain other criteria, they
    would be allowed back in the country or I can allow them back
    in the country.
        I think that is one of the balances struck in the bill,
    family unification versus economic benefit and enforcement.
        Senator Lee. All right. So your recollection of that
    provision is that it is discretionary and it is not automatic?
        Secretary Napolitano. I would have to look at the bill
    itself, but my understanding is that the intent is to give us
    the ability to waive someone in who was previously removed
    under certain limited circumstances.
        Senator Lee. All right. I will check that as well and will
    follow up in writing with any follow up questions.
        From the date of the enactment until the end of the RPI
    period, the bill as I understand it prevents anyone from being
    detained or deported or even apprehended as long as they appear
    prima facie eligible for RPI status.
        The RPI period as I understand it could last as much as
    three or three and a half years if the extension is granted
    which you have the authority to extend. We have heard from some
    ICE agents in hearings before the Committee that their work has
    been hampered at times with the similar prohibition under DACA
    wherein people will claim prima facie eligibility for DACA
    simply by saying I qualify under DACA, and at that point
    enforcement stops.
        The concern has been expressed that this could amount to a
    defacto three to three and a half year enforcement holiday
    wherein nobody as long as they know to invoke these provisions
    may be detained, deported or even apprehended so long as they
    utter the magic words.
        Do you share that concern?
        Secretary Napolitano. First of all, it is not my intent to
    take all of those extensions assuming I am here or my
    successor, we have every interest in implementing this as
    quickly as possible.
        Secondly, if someone has an aggravated felony conviction, a
    felony conviction, if they are a public safety risk or a
    national security risk, they already fall within our
    priorities. They would not prima facie qualify for RPI. Again,
    since we want to focus on those who have those kind of records
    and get them removed from our country, I think we would handle
    that very effectively as we enforce and begin to enforce this
    new regime.
        Senator Lee. All right. Thank you, Madam Secretary and
    thank you, Mr. Chairman.
        Chairman Leahy. Thank you, Senator Lee.
        Senator Durbin is one of the ones who has written this
    bill.
        Senator Durbin. Thank you, Mr. Chairman, Madam Secretary.
    Your title says it all, Homeland Security.
        In light of what happened in Boston, everyone is more
    sensitive to this issue this week than they were ten days ago.
    It is certainly understandable.
        I have said and I am sure you have said it but I want to
    confirm here as a closing Senator to ask questions, do you
    believe that the passage of this immigration reform bill will
    make America safer and more secure?
        Secretary Napolitano. Yes, absolutely.
        Senator Durbin. First, the notion that up to 11 million
    undocumented people will step forward, be identified by our
    Government as to who they are, where they live, where they
    work, be subject to a criminal background check?
        It seems obvious to me that with that knowledge, we will be
    a safer nation.
        Secretary Napolitano. Senator, yes, we will have more
    identifications, more metrics, more biographics reviewed not
    just against law enforcement holdings, but NCTC holdings. So it
    increases security at that end and then as a number of police
    chiefs have told me, right now for that group that is kind of
    in the gray area, limbo, what have you, they are reluctant to
    come forward when they have been the victim of a crime, the
    witness to a crime and so forth, allowing them to get RPI
    status and then begin that pathway will help alleviate that law
    enforcement problem as well.
        Senator Durbin. I will not dwell on the border aspects of
    the bill. It is clear that we have made historic investments in
    the security of our border between the United States and Mexico
    and this bill will go further. I would like to address a couple
    other areas that are topical.
        One relates to those coming to the United States seeking
    asylum. I want to make it clear for the record that there is
    nothing in this bill that weakens the authority nor the
    responsibility of your department and the agencies of our
    Federal Government to establish through rigorous, biometric and
    biographic checks, through law enforcement and intelligence
    checks including the FBI, Department of Defense and other
    agencies whether those seeking asylum would pose any threat to
    the United States.
        Secretary Napolitano. That is right. As I shared with
    Chairman Leahy at the beginning of the hearing, as you go
    through that asylum application process, there are a number of
    times where individuals are re-checked, re-vetted against law
    enforcement and national security databases, re-interviewed,
    and then information is also gathered to help ascertain the
    credibility of the claim of persecution.
        Senator Durbin. I know that you are aware of my interest in
    the Dream Act and I also want to applaud you and the President
    again for DACA an ask you to respond to the criticism which was
    lodged yesterday by one of the witnesses from Kansas about
    whether or not those who have gone through the DACA check
    should be closer to provisional status than those who have not.
        Secretary Napolitano. I thought that was a really good part
    of the draft bill which is to go ahead and put these DREAMers
    on an accelerated schedule. We have already checked them a
    variety of ways.
        Actually, Senator, the DACA process itself really gives us
    a good pilot on how we would do the much larger RPI process.
        Senator Durbin. One of the other aspects, I know E-Verify
    has been discussed here which is an important linkage between
    employment, identification and security, but I want to go to
    the other, and that is one that has been worrisome and
    challenging for more than ten years, and that relates to visa
    holders who come to the United States, being told you can stay
    for a certain purpose or a certain period of time and the fact
    that our system at least up to today has been unable to track
    their departures, so we closed the loop. They arrived, stayed
    and left as promised.
        Part of this immigration reform moves us to a new level, a
    new stage where to increase security and safety in the United
    States, we will develop the technology and the means to
    establish that.
        Can you tell me in light of what we have been through in
    trying to reach that goal your level of confidence that we can
    reach it in the near future?
        Secretary Napolitano. Well, the electronic exit system for
    air and sea in the bill is very consistent with the plan we
    have already submitted to the Congress and what we are
    implementing now. It is an achievable goal as referenced or
    stated in the bill as drafted.
        Senator Durbin. I will just close by saying I have stated
    publicly and I hope that you will agree, the worst thing that
    we can do at this moment in America's history is nothing. To
    step back and say we will just accept this broken immigration
    system, the weaknesses in our security and safety that are
    associated with it and resign ourselves to that as our future.
        I think that is the worst outcome. I invite you to respond.
        Secretary Napolitano. Senator, I could not agree with you
    more. As I said at the beginning of the hearing, I think the
    draft bipartisan bill really embraces the principles, the
    President annunciated it is a much better system than the one
    we have now.
        It deals with security but also economic growth and
    vitality, so it is a bill that I am very hopeful can move
    forward.
        Senator Durbin. Thank you very much.
        Chairman Leahy. Just so everybody will know, Senator
    Blumenthal and Senator Whitehouse, Senator Grassley has asked
    for a second round. Senator Lee has already had his second
    round and nobody else has asked for a second round, so we will
    go Senators Blumenthal, Whitehouse, Grassley and then wrap up
    because I know you have to get to another matter.
        Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman. Thank you for
    being here today and for your really excellent and very helpful
    testimony.
        I would like to ask a question that perhaps you may have
    answered in a different way during the course of your
    testimony. If you had one or two or three points where you
    think this bill should be changed as you have read it so as to
    be improved, and it is a bipartisan bill, it advances the
    debate I think immeasurably and I am a supporter and I believe
    very strongly with Senator Durbin that the worst thing to do
    now would be to do nothing.
        Every measure can use some constructive scrutiny and I
    wonder if you would have any suggestions about how this bill
    might be improved.
        Secretary Napolitano. One we have discussed and that is
    rather than create a separate fence fund per se, is to have one
    security fund out of which fencing and other things can be paid
    for so that the Secretary and the operators who actually have
    to manage that border have more flexibility with those monies.
    I would recommend that.
        The second area, and we will work with Committee staff on
    this, Senator, is to make sure the language about funding flows
    in which accounts and so forth is accurate and clear because we
    want to make sure it is consistent with appropriations and the
    Budget Control Act. So we will work with your staffs on that
    part.
        Senator Blumenthal. In terms of the detention or the
    judicial process or semi-judicial process in some instances by
    which these cases are prosecuted so to speak, can you suggest
    changes in the procedure that would make it either fairer or
    more expeditious?
        Secretary Napolitano. No. I think one change in the bill
    actually reflects a policy change we are installing right now
    which is counsel for those who are deemed mentally incompetent.
    But I think overall the due process protections in the bill are
    pretty robust.
        Senator Blumenthal. In terms of the impacts of the most
    recent incident in Boston, I know that you have addressed those
    in the course of your testimony already. But I wonder if there
    is anything we can do to raise these issues so that they do not
    become embroiled in the short term misperceptions that may
    result.
        Secretary Napolitano. Senator, what I would hope is that--
    there is a lot of misinformation out there as to the two
    brothers and of course this is an ongoing criminal
    investigation, so all threads are being followed.
        There is going to be a classified briefing on Thursday for
    the Senate. What I would recommend we do is let us have that
    briefing and then see what, if any, questions arise at that
    point that may have any relevance at all to immigration
    legislation.
        Senator Blumenthal. Thank you. Thank you, Mr. Chairman. I
    guess Senator Whitehouse, you are presiding.
        Senator Whitehouse. I call on myself. Welcome, Madam
    Secretary.
        Secretary Napolitano. Thank you, Senator.
        Senator Whitehouse. It is good to have you here, and let me
    join many of my colleagues in expressing my appreciation
    through you to the American law enforcement community for the
    stellar way that they responded to the incidents in Boston.
        We were attorneys general and U.S. attorneys together and I
    know you have a soft space in your heart for law enforcement
    folks and so I am sure you saw with the same pride that I did
    the way people pulled together, the lack of turfiness and the
    very impressive deployment of a wide range of local, State and
    Federal capabilities very rapidly, very comprehensively and
    very smoothly.
        I know as one of the law enforcement leaders, you were an
    important participant in that and so to you and to the law
    enforcement community, let me say well done.
        Secretary Napolitano. Thank you, Senator.
        Senator Whitehouse. We have in the context of the
    immigration debate heard considerable complaint about the lack
    of border enforcement, the problems of continued illegal
    immigration across particularly the southern border and so
    forth.
        I think that is a refrain that departs a little bit from
    the facts and I wanted to give you the opportunity to recap
    some of the accomplishments of the Obama administration in
    border security. So if you could briefly give us the highlights
    reel on some of the statistics and some of the metrics that you
    look at that show improved and increased border enforcement
    under this administration's watch, I would like to have that be
    part of the record of this proceeding.
        Secretary Napolitano. Just very briefly, I have worked at
    border for a long time. The border now is very different than
    the border then. Not to say that we are ever done, but this has
    to be sustained and that is an important part of this bill, it
    sustains our efforts there. We have record manpower now between
    the ports of entry, we have technology, we have air coverage.
    We have completed all but one mile of fence, the last mile is
    in litigation. The end result is that apprehensions border-
    wide, I talked with Senator Cruz about south Texas, we have a
    problem there right now which we are fixing, but border-wide
    are at 40 year lows.
        Our seizures of drugs and contraband, because we are able
    to focus there more, are up. So with the great help of the
    supplemental appropriation several years ago, we have been able
    to do quite a bit at that southwest border.
        Senator Whitehouse. So the short answer if I could
    summarize is that the deployment of resources to protect that
    border has significantly increased?
        Secretary Napolitano. To record levels, yes.
        Senator Whitehouse. The enforcement results in terms of
    additional seizures and prosecutions are up?
        Secretary Napolitano. Are all in the positive direction,
    yes.
        Senator Whitehouse. And the amount of illegal immigration
    as a result has been reduced?
        Secretary Napolitano. That is correct. There are probably a
    number of other reasons; illegal migration has a number of
    causes, but law enforcement is certainly one reason.
        Another major reason however is the driver to try to get a
    job, which is why this bill really helps us at the border
    because it deals with that driver.
        Another major driver is how difficult and long a period it
    takes to get a visa. That is why this bill helps because it
    deals with that problem. So it is a system that needs to work
    together.
        Senator Whitehouse. Good. Thank you very much, Mr.
    Chairman, for holding this hearing. Thank you, Secretary
    Napolitano for being here and I do think it is important that
    the record of the hearing reflect that this administration has
    actually substantially brought up this country's game in terms
    of border enforcement and suggestions to the contrary, again,
    they have the appeal of a familiar refrain but they are not
    factual.
        Chairman Leahy. I was just curious, I have got to ask the
    Senator from Rhode Island. Did you and the Secretary serve at
    the same time together either as U.S. attorneys or as attorneys
    general?
        Secretary Napolitano. Yes, both. I think we may have
    actually gone to the same law school.
        Senator Whitehouse. We did that as well.
        Chairman Leahy. As the outsider on this Committee, Senator
    Grassley.
        Senator Grassley. Before I ask you the first question, I
    want to make a statement here. It involves the discussion you
    had with Senator Graham. You said that Tamerlan's name did not
    ping against your database, but the FBI told Senator Graham
    that it did not and I am not sure if it was just a case of your
    department not telling the FBI, but that is something that in
    the days to come, I want to get to the bottom of.
        Let me go to the first question. In regard to high risk
    sectors, the bills border security goal only applies to high
    risk sectors. You define high risk based on the number of
    apprehensions in a particular sector, but we know from a 2011
    GAO report that your department has no operational control of
    more than half of the border, meaning apprehensions will remain
    low in those sectors because your department does not have
    control.
        Do you think it is acceptable for the border to only be
    secured in certain areas?
        Secretary Napolitano. Senator, that is why we do not use
    the term operational control. Operational control is a phrase
    that should properly be associated with the ability to deploy
    resources to your highest risk areas.
        There are parts of that border we do not need all the same
    resources that we need in other parts, as you well know. What
    we want is the ability to have manpower and technology and air
    cover and to be able to focus those and move those around to
    the areas where the risk is the highest. That is not
    operational control per se, but it is looking at a whole range
    of statistics and measures.
        Senator Grassley. In taking off on the term high risk, is
    it not really high risk for the bill to ignore large sections
    of the border?
        Secretary Napolitano. Well, Senator, we divide the border
    into nine sectors, and there are some sectors that have a lot
    of miles in them but are very sparsely populated and rarely
    crossed. They are not near any population centers, they are not
    near any roads, they are just very difficult. We do not leave
    them bare, we have resources there. But where we want to surge
    resources is in those areas that are used as the trafficking
    routes.
        Senator Grassley. The bill only mentions need to secure the
    southern border, no mention of the northern border. In fact,
    only the southern border is included in the trigger and has to
    be 90 percent secured.
        In light of what happened I think it was yesterday, this
    foiled terror plot in Canada, can the northern border be
    ignored? Or does it need to be part of the discussion?
        Secretary Napolitano. Well, I think it is part of the
    discussion but in a different way. It is a very different type
    of border. Both with respect, Senator, to your first point on
    the misspelling of Tamerlan's name and what that meant.
        With respect to Esseghaier which is the case you are
    referring to now, I think it would be better if we could
    discuss those with you in a classified setting. But let me just
    share with you that I believe the draft bill adequately
    accounts for security on the northen border.
        Senator Grassley. All right. Thank you. Legalization
    program, about how many people today if you know or somewhere
    within the ballpark are in removal proceedings?
        Secretary Napolitano. I would have to get that number for
    you, Senator.
        Senator Grassley. Well then I can ask you a question about
    the bill. Whatever the number is, should these people who are
    in removal proceedings be allowed to apply for and receive
    legalization?
        Secretary Napolitano. In my judgment, if they would meet
    the requirements for being an RPI, I believe the intent of the
    bill is they would be allowed to register as such, yes.
        Senator Grassley. And you agree with that?
        Secretary Napolitano. We support the bill and we support
    that intent, yes.
        Senator Grassley. All right. You may not be able to answer
    this question either. How many people today have ignored the
    Government's order to leave the United States?
        Secretary Napolitano. Why, I will get you the number for
    whom we have fugitive warrants.
        Senator Grassley. All right, then about the bill on that
    same point, should these absconders be allowed to benefit from
    the legalization program even though the Government has
    expanded the resources to remove them?
        Secretary Napolitano. I think the intent of the bill is for
    certain narrow categories, for family unification purposes that
    they would be allowed to come back and register for RPI.
        I think given how that provision is drafted and how it
    would work in practice in terms of family reunification, that
    is a very good part of the bill.
        Senator Grassley. Could I ask one more question?
        Chairman Leahy. Of course.
        Senator Grassley. This will be my last. I do not know how
    certain you are about what the fees will bring in on that and I
    know CBO has not scored it and I hope you have a handle on
    costs to some extent.
        Some analyzers tell us that the agency will be able to be
    prepared to cover all costs through fees and that the
    administration will not come to Congress to seek taxpayers'
    money to pick up the tab for the program. Does that sound
    reasonable to you?
        Secretary Napolitano. I think, Senator, as I mentioned
    earlier, we need to work with the Committee on how they have
    structured, to which account the fees and fines collected go.
    But the intent of the bill is that this be a self-supporting
    piece of legislation.
        We know from DACA the Deferred Action Program, gives us a
    good pilot in terms of estimating what the costs are going to
    be.
        Senator Grassley. Thank you, Mr. Chairman. Thank you, Madam
    Secretary.
        Secretary Napolitano. Thank you.
        Chairman Leahy. Thank you. I was going to recess, but
    Senator Cruz says he has a couple more questions and rather
    than recess and come back late this afternoon, I will yield to
    him now and then we will stop.
        Senator Cruz. Thank you, Mr. Chairman, I appreciate the
    courtesy.
        Madam Secretary, I wanted to go back and revisit the topic
    we discussed earlier of border security, which is proponents of
    this legislation argue that it provides for real metrics for
    border security and triggers that are meaningful.
        I will confess the testimony that was provided this morning
    is not encouraging in that regard. We talked about operational
    control, a measure DHS has used for some time. In 2010 the last
    time DHS used that measure of operational control, the
    conclusion was that only 873 of the roughly 2,000 miles of the
    southern border were under operational control.
        That metric was not an encouraging metric in terms of
    assessing what kind of job we are doing securing the border. It
    strikes me as not coincidental that in the light of that less
    than encouraging statistic, the Department simply decided to
    stop relying upon that statistic and instead, if I understood
    what you explained this morning correctly, the Department now
    relies on a holistic group of measures which to me seem
    reminiscent of Justice Lewis Powell's test in Bakke for
    affirmative action that measured everything and has a great
    deal of subjectivity in it.
        If there are no objective metrics, if it is simply the
    subjective assessment of a host of factors, how can we have any
    confidence that the border will be secure and that any trigger
    will be meaningful?
        Secretary Napolitano. I think you have to step back,
    Senator, and look at where the border was even six or seven
    years ago, where it is today. There are a whole host of
    statistics that help in that regard. They are not subjective in
    that sense.
        They are numbers that give you an overall picture of what
    is happening at the border. The problem with the operational
    control metric is the overuse of it or misuse of it because it
    was easily misunderstood. I am not being critical about it
    being overused, I am just being descriptive.
        What it really refers to is your ability to have
    situational awareness and response in highly trafficked areas
    where you need it, where the risk is greatest.
        What this bill does is pretty much say look, we are going
    to continue to build on the security you already have. There is
    additional money in there for that. We hope that we can get
    flexibility with respect to how that money is spent that goes
    to the set aside for fence.
        Senator Cruz. But Madam Secretary----
        Secretary Napolitano. By the way, by the way if we are
    going to use effectiveness rate, which is a GAO number based on
    numbers we give the GAO and if that does not reach a certain
    number in the highly trafficked areas, then we will have a
    commission that will recommend to me what additional steps need
    to be made.
        Senator Cruz. Madam Secretary though, it seems to me that
    if border security is to be measured by an amorphous, multi-
    factored subjective test, that this Committee knows to a
    metaphysical certainty that DHS will conclude border security
    is satisfied.
        If a trigger is certain to occur, then I would suggest it
    is not a meaningful trigger that is measuring anything.
        Let me ask you this. Can you describe a circumstance in
    which the evidence would be such that DHS would say the trigger
    is not satisfied, that border security is not there?
        You have already told us apprehensions are at the lowest
    level in 40 years and yet the border is secure. What would the
    facts have to be for DHS to conclude the triggers are not
    satisfied?
        Secretary Napolitano. I think, Senator, and we will just
    kind of agree to disagree on the predicate for your question,
    but we would be continuing to look at all the measures I
    indicated to you. We would be deploying the technology plans
    that we have submitted to the Congress, and those technology
    plans are sector specific and they are important.
        They are important because they will give us even greater
    visibility into what may be trying to come across the border
    than we even have now, so that when you look at effectiveness
    rate, we can have----
        Senator Cruz. Madam Secretary, I am sorry. My time is
    expiring and I would like if possible for you to try to answer
    the question I asked which is what the evidence would have to
    show for DHS to conclude that triggers were not satisfied.
        Secretary Napolitano. Well, if the conditions in the Tucson
    sector return to where they were in 2005 and 2006, the triggers
    certainly would not be satisfied.
        Chairman Leahy. Thank you.
        Senator Cruz. Thank you, Madam Secretary.
        Chairman Leahy. Thank you. Madam Secretary, one, I
    appreciate you being here. You and I talk often on issues here.
    I appreciate yours, I appreciate the President's commitment on
    immigration. As you know, he and I spent more than one
    discussion about this. I rather ruefully thanked him for having
    so many issues of importance to him before this Committee, but
    he was kind enough to say he did not want me to be bored
    because then Marcel would have to put up with me.
        I cannot help but think as I listened to the debate around
    here that for some, there will always be a reason why we cannot
    go forward on immigration reform. It could be the terrible
    events in Boston, it could be any one of a thing.
        The fact is that is denying reality to say we cannot go
    forward. Now is a good time. We have had eight senators who
    worked for months on this, joined by others and they go across
    the political spectrum on both parties.
        I have stated often I am a grandson of immigrants, my wife
    is a daughter of immigrants. I think of how this country is
    improved and enlarged and made better by immigrants. If the
    most powerful, wealthiest nation on earth cannot face up to
    reality and find a law that faces reality, then shame on us.
    Shame on us.
        This Senator believes we can. I know you believe we can, I
    know the President believes we can, and a growing number of
    Senators in both parties believe we can.
        I have often said that the Senators should be the
    conscience of the Nation. If we want to be the conscience, now
    is the time to show our conscience, and I thank you for being
    here.
        Secretary Napolitano. Thank you, Senator.
        Chairman Leahy. We stand in recess.
        [Whereupon, at 11:54 a.m., the Committee was adjourned.]
        [Additional material submitted for the record for Day 1 and
    for Day 2 follows.]

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