[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
26-146 PDF PDF WASHINGTON : 2017
----------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].
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.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]