[Congressional Record Volume 142, Number 57 (Tuesday, April 30, 1996)]
[Senate]
[Pages S4390-S4395]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      IMMIGRATION CONTROL AND FINANCIAL RESPONSIBILITY ACT OF 1996

  The Senate continued with the consideration of the bill.
  Mr. SIMPSON. Mr. President, I ask unanimous consent that a vote occur 
on or in relation to the Graham amendment No. 3760 at 2:15 today, and 
immediately following that vote there be 2 minutes of debate equally 
divided in the usual form to be followed by a vote on or in relation to 
the Graham amendment No. 3803 with the clarification that there be 2 
minutes of debate equally divided on each of those amendments, and that 
the debate begin at 2:15.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SIMPSON. Mr. President, I send an amendment to the desk.
  Mr. President, I will submit the amendment in a moment. As we prepare 
to do that, let me say that I will proceed to an amendment. Senator 
Kennedy has certainly accelerated the process. I am very appreciative. 
He and I intend to deal with the hot button items, and certainly the 
one with regard to deeming and public assistance and welfare is one of 
those. Anything to do with verification is one of those.
  So now I do not think this one will be exceedingly controversial 
because it will deal with the issue of the birth certificate, and the 
birth certificate is the most abused document. It is the breeder 
document of most falsification. I have tried to accommodate the 
interests of Senator DeWine.
  I may not have met that test. But I certainly have tried. I have 
tried to meet the recommendations of Senator Leahy, and certainly we 
have met the test of the issue of cost. Because we have it now so 
provided that I think we have met those conditions.


                 Amendments Nos. 3853 and 3854, En Bloc

  Mr. SIMPSON. Mr. President, I call up amendments at this time 3853 
and 3854 and ask that they be considered en bloc.
  The PRESIDING OFFICER. If there is no objection, the pending 
amendments are set aside, and without objection it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wyoming (Mr. Simpson) proposes amendments 
     numbered 3853 and 3854 en bloc.

  Mr. SIMPSON. Mr. President, I believe that those relate to 
verification. I am not prepared to bring those up at this time, and I 
ask unanimous consent that that request be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.


          Amendments Nos. 3855 and 3857 through 3862, En Bloc

  Mr. SIMPSON. I call up amendments 3855 and 3857 through 3862, en 
bloc.
  The PRESIDING OFFICER. Without objection, the pending amendments are 
set aside, and the clerk will report.
  The legislative clerk read as follows:

       The Senator from Wyoming (Mr. Simpson) proposes amendments 
     numbered 3855 and 3857 through 3862, en bloc.

  Mr. SIMPSON. Mr. President, I ask unanimous consent that reading of 
the amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The text of the amendments follow:


                           AMENDMENT NO. 3855

(Purpose: To amend sec. 118 by phasing-in over 6 years the requirements 
    for improved driver's licenses and State-issued I.D. documents)

       In sec. 118(b), on page 42 delete lines 18 through 19 and 
     insert the following:
       ``(5) Effective Dates.--
       ``(A) Except as otherwise provided in subparagraphs (B) or 
     (C), this subsection shall take effect on October 1, 2000.
       ``(B)(i) With respect to driver's licenses or 
     identification documents issued by States that issue such 
     licenses or documents for a period of validity of six years 
     or less, Paragraphs (1) and (3) shall apply beginning on 
     October 1, 2000, but only to licenses or documents issued to 
     an individual for the first time and to replacement or 
     renewal licenses issued according to State law.
       ``(ii) With respect to driver's licenses or identification 
     documents issued in States that issue such licenses or 
     documents for a period of validity of more than six years, 
     Paragraphs (1) and (3) shall apply--
       ``(I), during the period of October 1, 2000 through 
     September 30, 2006, only to licenses or documents issued to 
     an individual for the first time and to replacement or 
     renewal licenses issued according to State law, and
       ``(II), beginning on October 1, 2006, to all driver's 
     licenses or identification documents issued by such States.
       ``(C) Paragraph (4) shall take effect on October 1, 2006.''
                                                                    ____



                           amendment No. 3857

       Amend section 118(a)(3) to read as follows:
       (B) The conditions described in this subparagraph include--
       (i) the presence on the original birth certificate of a 
     notation that the individual is deceased, or
       (ii) actual knowledge by the issuing agency that the 
     individual is deceased obtained through information provided 
     by the Social Security Administration, by an interstate

[[Page S4391]]

     system of birth-death matching, or otherwise.
       (3) Grants to States.--(A)(i) The Secretary of Health and 
     Human Services, in consultation with other agencies 
     designated by the President, shall establish a fund, 
     administered through the National Center for Health 
     Statistics, to provide grants to the States to encourage them 
     to develop the capability to match birth and death records, 
     within each State and among the States, and to note the fact 
     of death on the birth certificates of deceased persons. In 
     developing the capability described in the preceding 
     sentence, States shall focus first on persons who were born 
     after 1950.
       (ii) Such grants shall be provided in proportion to 
     population and in an amount needed to provide a substantial 
     incentive for the States to develop such capability.
                                                                    ____



                           amendment no. 3858

  (Purpose: To amend sec. 118 by providing that the birth certificate 
 regulations will go into effect two years after a report to Congress)

       In sec. 118(e), on page 41, strike lines 1 and 2, and 
     insert the following:--
       ``(6) Effective Dates.--
       ``(A) Except as otherwise provided in subparagraph (B) and 
     in paragraph (4), this subsection shall take effect two years 
     after the enactment of this Act.
       ``(B) Paragraph (1)(A) shall take effect two years after 
     the submission of the report described in paragraph (4)(B).''
                                                                    ____



                           amendment no. 3859

       Section 118(b)(1) is amended to read as follows:
       (b) State-Issued Drivers Licenses.--
       (1) Social security account number.--Each State-issued 
     driver's license and identification document shall contain a 
     social security account number, except that this paragraph 
     shall not apply if the document or license is issued by a 
     State that requires, pursuant to a statute, regulation, or 
     administrative policy which was, respectively, enacted, 
     promulgated, or implemented, prior to the date of enactment 
     of this Act, that--
       (A) every applicant for such license or document submit the 
     number, and
       (B) an agency of such State verify with the Social Security 
     Administration that the number is valid and is not a number 
     assigned for use by persons without authority to work in the 
     United States, but not that the number appear on the card.
                                                                    ____



                           amendment no. 3860

    (Purpose: To amend sec. 118 by revising the definition of birth 
                              certificate)

       In sec. 118(a), on page 40, line 24, after ``birth'' 
     insert:

     ``of--
       ``(A) a person born in the United States, or
       ``(B) a person born abroad who is a citizen or national of 
     the United States at birth, whose birth is''.
                                                                    ____



                           amendment no. 3861

       Amend sec. 118(a)(4) to read as follows:
       (B) The Secretary of Health and Human Services shall 
     establish a fund, administered through the National Center 
     for Health Statistics, to provide grants to the States for a 
     project in each of 5 States to demonstrate the feasibility of 
     a system by which each such State's office of vital 
     statistics would be provided, within 24 hours, sufficient 
     information to establish the fact of death of every 
     individual dying in such State.
       (C) There are authorized to be appropriated to the 
     Department of Health and Human Services such amounts as may 
     be necessary to provide the grants described in subparagraphs 
     (A) and (B).
       (4) Report.--(A) not later one year after the date of the 
     enactment of this Act, the Secretary of Health and Human 
     Services shall submit a report to the Congress on ways to 
     reduce the fraudulent obtaining and the fraudulent use of 
     birth certificates, including any such use to obtain a social 
     security account number or a State or Federal document 
     related to identification or immigration.
       (B) Not later than one year after the date of enactment of 
     this Act, the agency designated by the President in paragraph 
     (1)(B) shall submit a report setting forth, and explaining, 
     the regulations described in such paragraph.
       (C) There are authorized to be appropriated to the 
     Department of Health and Human Services such amounts as may 
     be necessary for the preparation of the report described in 
     subparagraph (A).
       (5) Certificate of birth.--As used in this section, the 
     term ``birth certificate'' means a certificate of birth 
     registered in the United States.
                                                                    ____



                           amendment no. 3862

       Amend section 118(a)(1) is amended to read as follows:
       (a) Birth Certificate.--
       (1) Limitation on acceptance.--(A) No Federal agency, 
     including but not limited to the Social Security 
     Administration and the Department of State, and no State 
     agency that issues driver's licenses or identification 
     documents, may accept for any official purpose a copy of a 
     birth certificate, as defined in paragraph (5), unless it is 
     issued by a State or local authorized custodian of record and 
     it conforms to standards described in subparagraph (B).
       (B) The standards described in this subparagraph are those 
     set forth in regulations promulgated by the Federal agency 
     designated by the President after consultation with such 
     other Federal agencies as the President shall designate and 
     with State vital statistics offices, and shall--
       (i) include but not be limited to--
       (I) certification by the agency issuing the birth 
     certificate, and
       (II) use of safety paper, the seal of the issuing agency, 
     and other features designed to limit tampering, 
     counterfeiting, and photocopying, or otherwise duplicating, 
     for fraudulent purposes;
       (ii) not require a single design to which the official 
     birth certificate copies issued by each State must conform; 
     and
       (iii) accommodate the differences between the States in the 
     manner and form in which birth records are stored and in how 
     birth certificate copies are produced from such records.
       (2) Limitation on issuance.--(A) If one or more of the 
     conditions described in subparagraph (B) is present, no State 
     or local government agency may issue an official copy of a 
     birth certificate pertaining to an individual unless the copy 
     prominently notes that such individual is deceased.
  Mr. SIMPSON. Mr. President, these series of amendments deal with a 
certain issue. They are intended to improve section 118 of the bill 
which relates to the improvements in the birth certificate and driver's 
license. These were contained in a single amendment to this section of 
the bill, and they have been united en bloc.
  These amendments in their en bloc form provide for a 6-year phase in 
of the driver's license improvements. It provides that the agency will 
develop the new minimum standards for birth certificate copies--the 
agency designated by the President and not necessarily the Department 
of Health and Human Services.
  The second amendment, or the amendments, eliminate the reference to 
the phrase ``use by imposters.'' And the purpose here is to remove any 
implication that fingerprints, or other so-called biometric information 
will be required. That came up in the debate in committee. I have no 
desire to go to that intrusive level, and it is not there.
  It directs the agency developing the new standards for birth 
certificate copies not to require a single design. That was part of the 
debate. Surely we cannot require a single design, and we do not.
  All of the States would not have to conform to this, and it directs 
the agency to take into account differences between the States and how 
birth records are kept and copies are produced. And it directs the 
agency developing the birth certificate standards to first consult with 
other Federal agencies as well as with the States.
  It requires the agency developing the minimum standards to submit a 
report to Congress on their proposed standards within 1 year of 
enactment, and then it also modifies the definition of ``birth 
certificate'' to clarify that it includes the certificate of a person 
born abroad who is a citizen at birth if the birth is registered in a 
State.
  It also provides new minimum standards for birth certificate copies--
copies--which will be in effect beginning 2 years after the report to 
Congress by the agency developing the standards. And it makes a 
technical amendment to part of the driver's license provision so that 
it will more accurately reflect the agreement between Senator Kennedy 
and I during the Judiciary Committee markup.
  That is the essence of the material, but let me add this. The 
amendment would phase in the bill's requirements for the improved 
driver's licenses and State issued ID documents over 6 years beginning 
October 1, 2000, the year suggested by the National Governors' 
Association.
  Under my amendment, the improved format would be required only for 
new or renewed licenses or State issued ID documents with the exception 
of licenses or documents issued in one State where the validity period 
for licenses is twice as long--12 years--as that in States with the 
next longest period. This one State would have 6 years to implement the 
improvements. This is an accommodation that Senator Kennedy is aware 
of. His State has some very interesting and sweeping legislation with 
regard to licenses.
  Furthermore, the bill's provision that only the improved licenses and 
documents could be accepted for evidentiary purposes by Government 
agencies in this country would under the amendment I am now proposing 
not be effective until 6 years after the effective date of the 
legislation.

[[Page S4392]]

  I wish to give Senator Kennedy an appropriate time to respond before 
the hour of 12:30 when by previous order we will recess, but what we 
have tried to do is remind our colleagues once again that fraud 
resistant ID documents will not only make it possible for an effective 
system of verifying citizenship or work authorization but also greatly 
reduce illegal immigration.
  The amendment is in response to the CBO estimate of the current 
requirement that these documents be implemented prior to October 1, 
1997. The additional costs of replacing all licenses and ID documents 
by 1998, including those that would otherwise be valid for an 
additional number of years, would be eliminated. So instead of costing 
$80 to $200 million initially, plus $2 million a year thereafter, CBO 
estimates that the total cost of all the birth certificate and driver's 
license improvements would be $10 million to $20 million incurred over 
6 years, and the CBO has written a letter to me confirming that fact. I 
ask unanimous consent it be inserted in the Record at this time.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                    U.S. Congress,


                                  Congressional Budget Office,

                                   Washington, DC, April 15, 1996.
     Hon. Alan K. Simpson,
     Chairman, Subcommittee on Immigration, Committee on the 
         Judiciary, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: As requested by your staff, CBO has 
     reviewed a possible amendment to S. 1664, the Immigration 
     Control and Financial Responsibility Act of 1996, which was 
     reported by the Senate Committee on the Judiciary on April 
     10, 1996. The amendment would alter the effective date of 
     provisions in section 118 that would require states to make 
     certain changes in how they issue driver's licenses and 
     identification documents. The amendment would thereby allow 
     states to implement those provisions while adhering to their 
     current renewal schedules.
       The amendment contains no intergovernmental mandates as 
     defined in Public Law 104-4 and would impose no direct costs 
     on state, local, or tribal governments. In fact, by delaying 
     the effective date of the provisions in section 118, the 
     amendment would substantially reduce the costs of the 
     mandates in the bill. If the amendment were adopted, CBO 
     estimates that the total costs of all intergovernmental 
     mandates in S. 1664 would no longer exceed the $50 million 
     threshold established by Public Law 104-4.
       In our April 12, 1996, cost estimate for S. 1664 (which we 
     identified at the time as S. 269), CBO estimated that section 
     118, as reported, would cost states between $80 million and 
     $200 million in fiscal year 1998 and less than $2 million a 
     year in subsequent years. These costs would result primarily 
     from an influx of individuals seeking early renewals of their 
     driver's licenses or identification cards. By allowing states 
     to implement the new requirements over an extended period of 
     time, the amendment would likely eliminate this influx and 
     significantly reduce costs. If the amendment were adopted, 
     CBO estimates the direct costs to states from the driver's 
     license and identification document provisions would total 
     between $10 million and $20 million and would be incurred 
     over six years. These costs would be for implementing new 
     data collection procedures and identification card formats. 
     If you wish further details on this estimate, we will be 
     pleased to provide them.
           Sincerely,
                                                  June E. O'Neill,
                                                         Director.

  Mr. SIMPSON. So with respect to birth certificates, the bill already 
requires, the bill we are debating, that as of October 1, 1997 no 
Federal agency--and no State agency that issues driver's licenses or ID 
documents--may accept for any official purpose a copy of a birth 
certificate unless it is issued by a State or local government rather 
than a hospital or nongovernmental entity, and it conforms to Federal 
standards after consultation with the State vital records officials. 
The standards would affect only the form of copies, not the original 
records kept in the State agencies.
  The standards would provide for improvements that would make the 
copies more resistant to counterfeiting and tampering and duplicating 
for fraudulent purposes. An example is the use of safety paper, which 
is difficult to satisfactorily copy or alter.
  There is no requirement in this bill that all States issue birth 
certificate copies in the same form, but in response to concerns that 
some have expressed the amendment I now propose explicitly to require 
that the implementing regs not mandate that all States use the single 
form for birth certificate copies and require the regs to accommodate 
differences among the States in how birth records are kept and how 
copies are produced.
  These are the things that this provides. There is more. We will 
discuss it in further depth after we return from recess for our 
caucuses. But these are modifications suggested by the Governors and 
some of my colleagues, and the real issue is a very simple one. Birth 
certificates are the breeder document. You get the birth certificate--
you can get it by reading the obituaries. Read the obituaries and write 
for the birth certificate--no proper certifications.
  I yield to my colleague for any time he would wish on this or any 
other matter.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, just a brief comment on this measure. I 
think that Senator Simpson has made several valuable changes in the 
bill on the driver's licenses and birth certificates. I strongly 
support his proposal in this area to alleviate the concerns that the 
provisions amounted to an unfunded mandate. He has addressed those 
issues.
  In addition, Senator Simpson has made important changes in the 
provision on the birth certificates. The amendment instructs the HHS, 
when issuing the guidelines for birth certificates, to not require 
birth certificates to be one single form for every State, and the other 
measures he has outlined.
  This is a difficult issue for many, but it is an absolutely essential 
one. We are not serious in trying to deal with illegals unless we get 
right back to the breeder document, which Senator Simpson has done, and 
also in terms of a verification program, which we will have an 
opportunity to debate, and also in terms of the Border Patrol. Those 
are the essential aspects.
  That is where the target is. Jobs are the magnet. This helps provide 
assurances that illegals are not going to get the jobs and legals, 
legal Americans will be protected. This is an extremely important 
provision. It is a difficult one and we will have a chance to address 
some of the related matters later in the afternoon.
  Just very briefly, Mr. President, on some of the matters that were 
talked about earlier, I know my good friend from New Mexico talked 
about the SSI issues and also about how legals have moved into this 
process and have been drawing down on the program.
  This issue of deeming has worked effectively with the SSI, and 
Senator Simpson has addressed that issue as presented in the SSI 
because it will go on for some 10 years--10 years. The deeming is an 
effective program, and it will go on for a period of 10 years.
  So the principal concerns that the Senator from New Mexico has as has 
been pointed out here will be addressed in the Simpson program. Many of 
us are looking at other measures where we think the deeming should not 
be applicable and that is to try and ensure that legal immigrants are 
going to be treated identically to illegal immigrants for what are 
basically programs that will have an impact on the public health.
  My good friend from Wyoming says we ought to deem those, too. The 
principal fact is when you deem those programs, deeming is effective 
and that gets people out of the programs. We do not want children with 
communicable diseases out of the program. We want them to be immunized. 
We want them to have the emergency care so that they will not infect 
other children. There is a higher interest, I would say, in those 
limited areas. The House of Representatives has recognized it as we do.

  And then in the second proposal that I have put forward we recognize 
the importance of protecting expectant mothers, children and the 
veterans. Out of the $2 billion, it is $125 million. Again I think for 
those who have served under the colors of the United States, they ought 
to have at least some additional consideration as well as children. But 
we will have an opportunity to address those later on in the afternoon.
  I see my colleague rising. I ask unanimous consent to be able to 
proceed for another 15 minutes.
  Mr. SIMPSON. I think that would be all right.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KENNEDY. Mr. President, there were two other items. We have tried 
to

[[Page S4393]]

move this process along. I had hoped that we would be able to go back 
and forth, we would have one from one side, one from the other, and be 
able to intersperse my own amendments in with others. But as often 
happens around here, our colleagues are committed to important hearings 
over the course of the morning, so I will just finalize the last two 
amendments that I have. And then we will have an opportunity to address 
those in the postlunch period. That will conclude the debate on that.

  Mr. President, I ask the current amendment be temporarily set aside. 
I will send----
  Mr. SIMPSON. Mr. President, may I just enter this unanimous-consent 
request, to correct the withdrawal moments ago?


                 Amendments Nos. 3853 and 3854, En Bloc

  Mr. SIMPSON. Let me ask unanimous consent the pending amendment be 
set aside temporarily, and ask unanimous consent amendments 3853 and 
3854 be considered en bloc.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wyoming [Mr. Simpson] proposes en bloc 
     amendments numbered 3853 and 3854.

  The amendments are as follows:


                           amendment no. 3853

       Amend section 112(a)(1)(A) to read as follows:
       (A)(i) Subject to clauses (ii) and (iv), the President, 
     acting through the Attorney General, shall begin conducting 
     several local or regional projects, and a project in the 
     legislative branch of the Federal Government, to demonstrate 
     the feasibility of alternative systems for verifying 
     eligibility for employment in the United States, and 
     immigration status in the United States for purposes of 
     eligibility for benefits under public assistance programs (as 
     defined in section 201(f)(3) and government benefits 
     described in section 201(f)(4)).
       (ii) Each project under this section shall be consistent 
     with the objectives of section 111(b) and this section and 
     shall be conducted in accordance with an agreement entered 
     into with the State, locality, employer, other entity, or the 
     legislative branch of the Federal Government, as the case may 
     be.
       (iii) In determining which State(s), localities, employers, 
     or other entities shall be designated for such projects, the 
     Attorney General shall take into account the estimated number 
     of excludable aliens and deportable aliens in each State or 
     locality.
       (iv) At a minimum, at least one project of the kind 
     described in paragraph (2)(E), at least one project of the 
     kind described in paragraph (2)(F), and at least one project 
     of the kind described in paragraph (2)(G), shall be 
     conducted.
       Section 112(f) is amended to read as follows:
       (f) System Requirements.--
       (1) In general.--Demonstration projects conducted under 
     this section shall substantially meet the criteria in section 
     111(c)(1), except that with respect to the criteria in 
     subparagraphs (D) and (G) of section 111(c)(1), such projects 
     are required only to be likely to substantially meet the 
     criteria, as determined by the Attorney General.
       (2) Superseding effect.--(A) If the Attorney General 
     determines that any demonstration project conducted under 
     this section substantially meets the criteria in section 
     111(c)(1), other than the criteria in subparagraphs (D) and 
     (G) of that section, and meets the criteria in such 
     subparagraphs (D) and (G) to a sufficient degree, the 
     requirements for participants in such project shall apply 
     during the remaining period of its operation in lieu of the 
     procedures required under section 274A(b) of the Immigration 
     and Nationality Act. Section 274B of such Act shall remain 
     fully applicable to the participants in the project.
       (B) If the Attorney General makes the determination 
     referred to in subparagraph (A), the Attorney General may 
     require other, or all, employers in the geographical area 
     covered by such project to participate in it during the 
     remaining period of its operation.
       (C) The Attorney General may not require any employer to 
     participate in such a project except as provided in 
     subparagraph (B).
                                                                    ____



                           amendment no. 3854

  (Purpose: To modify bill section 112 (relating to pilot projects on 
systems to verify eligibility for employment in the U.S. and to verify 
immigration status for purposes of eligibility for public assistance or 
 certain other government benefits) to define ``regional project'' to 
 mean a project conducted in an area which includes more than a single 
          locality but which is smaller than an entire State)

       Sec. 112(a) is amended on page 31, after line 18, by adding 
     the following new subsection:
       ``(i) Definition of Regional Project.--For purposes of this 
     section, the term ``regional project'' means a project 
     conducted in a geographical area which includes more than a 
     single locality but which is smaller than an entire State.''.


                           Amendment No. 3829

    (Purpose: To allocate a number of investigators to investigate 
              complaints relating to labor certifications)

  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I ask the pending amendment be 
temporarily set aside and it be in order to consider my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy] proposes an 
     amendment numbered 3829.

  Mr. KENNEDY. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 8, line 17, before the period insert the following: 
     ``except that not more than 150 of the number of 
     investigators authorized in this subparagraph shall be 
     designated for the purpose of carrying out the 
     responsibilities of the Secretary of Labor to conduct 
     investigations, pursuant to a complaint or otherwise, where 
     there is reasonable cause to believe that an employer has 
     made a misrepresentation of a material fact on a labor 
     certification application under section 212(a)(5) of the 
     Immigration and Nationality Act or has failed to comply with 
     the terms and conditions of such an application''.

  Mr. KENNEDY. Mr. President, under my amendment, up to 150 of the 350 
Department of Labor wage and hour investigators authorized in the bill 
will be assigned the task of ensuring that employers seeking immigrant 
help do so according to our laws.
  This amendment simply takes the same enforcement authority that is 
available to the Labor Department in the temporary worker program and 
makes it available to the permanent worker program. It does not create 
anything new. Enforcement activities covered under my amendment include 
the investigations of cases where there is a reasonable cause to 
believe the employer has made a misrepresentation of a material fact on 
a labor certification application. These enforcement activities are 
vital to reduce the number of immigrant and nonimmigrant victims of 
illegal immigration practices.
  There is no better example of the need for better DOL enforcement 
than in the recruitment area. For example, employers currently are 
required to recruit U.S. workers first, bringing in permanent 
immigrants, but the recruitment process result is the hire of a U.S. 
worker only 0.2 of the time. A recently released report of the 
Department of Labor's inspector general shows recruitment in the 
permanent employment program is a sham.
  Another example, the IG reports that during one 6-month period, 
28,000 U.S. applicants were referred on 10,000 job orders and only 5 
were hired.
  I have other amendments to address these problems. At the minimum, 
what we should do is increase our capacity to enforce our current law.
  That is it basically. It is a pretty straightforward issue. We 
discussed this issue in general terms during the course of the 
amendment debate.
  Mr. President, I ask it be in order to temporarily set aside the 
existing amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3816

    (Purpose: To enable employers to determine work eligibility of 
           prospective employees without fear of being sued)

  Mr. KENNEDY. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy] proposes an 
     amendment numbered 3816.

  The amendment is as follows:
       On page 37 of the matter proposed to be inserted, beginning 
     on line 12, strike all through line 19, and insert the 
     following:
       (a) In General.--Paragraph (6) of section 274B(a) (8 U.S.C. 
     1324b(a)(6)) is amended to read as follows:
       ``(6) Treatment of certain documentary practices as 
     employment practices.--
       ``(A) In general.--For purposes of paragraph (1), a 
     person's or other entity's request, in order to satisfy the 
     requirements of section 274A(b), for additional or different 
     documents than are required under such section or refusal to 
     honor documents tendered that on their face reasonably appear 
     to be genuine shall be treated as an unfair immigration-
     related employment practice relating to the hiring of 
     individuals. A person or

[[Page S4394]]

     other entity may not request a specific document from among 
     the documents permitted by section 274A(b)(1).
       ``(B) Reverification.--Upon expiration of an employee's 
     employment authorization, a person or other entity shall 
     reverify employment eligibility by requesting a document 
     evidencing employment authorization in order to satisfy 
     section 274A(b)(1). However, the person or entity may not 
     request a specific document from among the documents 
     permitted by such section.
       ``(C) Ability to present permitted document.--Nothing in 
     this paragraph shall be construed to prohibit an individual 
     from presenting any document or combination of documents 
     permitted by section 274A(b)(1).''.
       (b) Limitations on Complaints.--Section 274B(d) (8 U.S.C. 
     1324b(d)) is amended by adding at the end the following new 
     paragraph:
       ``(4) Limitations on ability of office of special counsel 
     to file complaints in document abuse cases.--
       ``(A) In general.--Subject to subsection (a)(6) (A) and 
     (B), if an employer--
       ``(i) accepts, without specifying, documents that meet the 
     requirements of establishing work authorization,
       ``(ii) maintains a copy of such documents in an official 
     record, and
       ``(iii) such documents appear to be genuine,

     the Office of Special Counsel shall not bring an action 
     alleging a violation of this section. The Special Counsel 
     shall not authorize the filing of a complaint under this 
     section if the Service has informed the person or entity that 
     the documents tendered by an individual are not acceptable 
     for purposes of satisfying the requirements of section 
     274A(b).
       ``(B) Acceptance of document.--Except as provided in 
     subsection (a)(6) (A) and (B), a person or entity may not be 
     charged with a violation of subsection (a)(6)(A) as long as 
     the employee has produced, and the person or entity has 
     accepted, a document or documents from the accepted list of 
     documents, and the document reasonably appears to be genuine 
     on its face.''.
       (c) Good Faith Defense.--Section 274A(a)(3) (8 U.S.C. 
     1324a(a)(3)) is amended to read as follows:
       ``(3) Defense.--A person or entity that establishes that it 
     has complied in good faith with the requirements of 
     subsection (b) with respect to the hiring, recruiting, or 
     referral for employment of an alien in the United States has 
     established an affirmative defense that the person or entity 
     has not violated paragraph (1)(A) with respect to such 
     hiring, recruiting, or referral. This section shall apply, 
     and the person or entity shall not be liable under paragraph 
     (1)(A), if in complying with the requirements of subsection 
     (b), the person or entity requires the alien to produce a 
     document or documents acceptable for purposes of satisfying 
     the requirements of section 274A(b), and the document or 
     documents reasonably appear to be genuine on their face and 
     to relate to the individual, unless the person or entity, at 
     the time of hire, possesses knowledge that the individual is 
     an unauthorized alien (as defined in subsection (h)(3)) with 
     respect to such employment. The term ``knowledge'' as used in 
     the preceding sentence, means actual knowledge by a person or 
     entity that an individual is an unauthorized alien, or 
     deliberate or reckless disregard of facts or circumstances 
     which would lead a person or entity, through the exercise of 
     reasonable care, to know about a certain condition.''.

  Mr. KENNEDY. Mr. President, this proposal goes to the heart of the 
dilemma that employers feel they are facing in the hiring of employees, 
many of whom speak with a different tongue, maybe have a skin color 
that is different from others. Many employers feel they are caught 
between a rock and a hard place. If they are too vigilant about 
ensuring they do not hire illegal aliens, they get charged with 
discrimination. If they are not vigilant enough, they get socked with 
employer sanctions.
  This amendment eliminates that dilemma by amending both the employer 
sanctions and the document abuse provisions. For the first time, there 
is now explicit language guaranteeing that if the employers follow a 
few simple rules, they cannot be held liable under either the employer 
sanctions provisions or the document abuse provisions.
  Here are the simple rules: As long as an applicant produces a 
document from the accepted list of documents--that will be the reduced 
list, the six that will be as a result of this bill --and the document 
appears authentic, the employer cannot ask for additional documents to 
prove employment eligibility.
  If the employer follows these simple rules, my amendment contains 
explicit language ensuring that the employer is off the hook for 
employer sanctions on discrimination. If the applicant provides one of 
the six documents, and it is authentic or looks to be authentic and 
that person is hired, then effectively this provision will be a good-
faith response to any charge that there was any intentional kind of 
discrimination against that individual.
  The document abuse provision now states if the employer follows these 
rules, the Justice Department ``shall not bring an action alleging a 
violation of this section.'' These are entirely new provisions. 
Everybody agrees there is a serious problem against foreign-looking and 
foreign-sounding American citizens and legal immigrants. Everybody 
agrees also, and studies have confirmed, that employer sanctions have 
been used to discriminate.
  The most widely utilized procedure is when employers see or 
understand that a Puerto Rican is applying and they ask for the green 
card. They ask for the green card, the Puerto Rican does not have a 
green card because he or she is a U.S. citizen, and, therefore, they 
discriminate against those individuals.
  What this would say is, if the individual provided any of the six, 
then that effectively ensures that the employer will not be subject to 
the charge of discrimination. It basically resolves, I think, in a very 
important way, the employer and the applicant's interest.

  It makes no sense to enact a provision that everyone knows can lead 
to possible problems of discrimination. The problems are document fraud 
and the pressure created by the employers by the employer sanction 
provisions. We already addressed the document fraud problem elsewhere 
in the bill. We are reducing the number of applicable documents from 29 
to 6, and we are making it harder for criminals to manufacture the 
phony document.
  This amendment eliminates the pressure on employers created by 
employer sanctions provisions. It also provides protections for the 
applicants. I think it is a preferable way of dealing with this 
particular issue. We had discussion on this in the committee and we did 
not accept these provisions, but it does seem to me that they meet the 
challenge of protecting us against discrimination and, also, against 
the employer being subject to employer sanctions.
  Those are the principal items. As I said, we have had a good 
opportunity. The members of the Judiciary Committee are familiar with 
these measures. We have been on the legislation for a few days. These 
measures are complex, they are difficult, but they are enormously 
important because they reach the issues of discrimination. In the last 
instance, they reach the whole question about the assurance that we are 
going to give adequate notice for Americans when there are job openings 
so they can be protected, their interests can be protected, and we can 
ensure that when there are openings for American workers and they are 
qualified, that they are going to be able to gain the employment and 
there is not going to be a circuitous way to effectively undermine the 
interests of workers.
  What we have found is that, in so many instances, when there is a 
hiring of a foreign worker the salaries go down and other benefits go 
down for that worker, so the American worker, first of all, does not 
get the job. And, then, if the foreign worker gets paid less, which 
means that an American company on the one hand is competing with this 
company and the second company has an advantage because they are paying 
their foreign workers less, and therefore they have a competitive 
advantage, the American workers at the second company lose their jobs, 
too.
  So we want to try, to the extent we can, to make sure the current law 
is being enforced. When we come back to the issues of legal 
immigration, we will have an opportunity to address some of those 
items, which I think are very, very high priority.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. SIMPSON. Mr. President, I have just 5 minutes remaining. We will, 
of course, return to these issues. I appreciate the cooperation of my 
friend from Massachusetts.
  The first amendment at the desk--I do not recall the number, but the 
one on enforcement of labor conditions--is similar to the one my 
colleague offered at a subcommittee markup.
  It concerned me then because of the broad grant of power that it 
makes to the Secretary of Labor to bring employers before a tribunal, 
demand various kinds of information and assess substantial penalties, 
and I remain very concerned about the same problems in this amendment.
  He has argued that it provides investigative authority to the 
Department

[[Page S4395]]

of Labor in H-1B nonimmigrant cases, indicating this simply provides 
similar investigative authority to the Department of Labor as in labor 
certification cases, but in this amendment, the DOL can initiate its 
own investigations. It is given authority under section 556 of title V 
which it does not have in H-1B cases. There is an array of penalties 
and remedies that is greater than that in 212. I certainly think it 
would not be appropriate, and I would speak against it.
  Quickly, with regard to the amendment dealing with the ``intent 
standard,'' I oppose that amendment. I have heard many more horror 
stories from employers who, when trying in absolute good faith to avoid 
hiring illegal aliens, have for one reason or another required more 
documents than the law requires or the wrong documents or fail to honor 
documents that appear to be genuine.
  Here is a common scenario. We often hear scenarios of the aggrieved. 
Here is one.
  A worker initially submits an INS document showing time-limited work 
authorization. At a later verification, however, the same employee 
produces documents with no time limitation--for example, a Social 
Security card--to show work authorization and a driver's license to 
show identity, both of which the employer knows are widely available in 
counterfeit form. What is the employer supposed to do?
  Under current law, if the employer asks for an INS work 
authorization, he or she can be fined, for a first offense, up to 
$2,000 per individual. Yet, if the employer continues to employ the 
individual, he or she will be taking the chance of unlawfully hiring an 
illegal alien. Remember that compliance with the law requires an 
employer to act in good faith. Would there be good faith under such 
suspicious circumstances?
  Furthermore, in hiring the individual, the employer would be facing 
the possibility of investing considerable time and resources, including 
training, in an individual whom the INS might soon force the employer 
to fire. There is also the loss of the work opportunity for the legal 
U.S. worker, people we speak of here.
  In another example, a college recruiter cannot ask a job applicant, 
``Do you have work authorization for the next year?'' That is 
discrimination because it would discriminate against asylees or 
refugees with time-limited work authorization. A recruiter may only 
ask, ``Are you permitted to work full-time?''
  Employers cannot even ask an employee what his or her immigration 
status is. An employer may only ask, ``Are you any of the following? 
But don't tell me which.''
  I oppose any kind of employment discrimination, always have 
throughout the whole course of years. Employers who intentionally 
discriminate in hiring or discharging are breaking the law. Scurrilous. 
But I do not believe it fair to fine the employers who are trying in 
good faith to follow the law.
  Under this amendment, law-abiding employers would continue to be 
threatened with penalties. The amendment says an employer may not ask 
for different documents, even when the employer has constructive 
knowledge that the applicant's documents are likely to be false; must 
reverify an employee if their time-limited work authorization expires, 
and must accept documents provided; and will be fined for employer 
sanctions or unfair discrimination unless he or she asks for any 
specific documents from the alien. This is the same as current law, and 
I think this is unacceptable.
  We will review and discuss it further. I will have further comments. 
But I believe, under the previous order, that we will now proceed to 
regular order with the direction of the Chair.

                          ____________________