[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

                               __________

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                       COMMITTEE ON THE JUDICIARY

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

                              ----------                              

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

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

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

                               WITNESSES

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

                               QUESTIONS

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

                                ANSWERS

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

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

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

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

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

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

                                WITNESS

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

                               QUESTIONS

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

                                ANSWERS

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

                MISCELLANEOUS SUBMISSION FOR THE RECORD

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

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

                              ----------                              


                         MONDAY, APRIL 22, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                              ----------                              


                        TUESDAY, APRIL 23, 2013

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

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

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

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

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

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

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

                            A P P E N D I X

              Additional Material Submitted for the Record

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