[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ask unanimous consent that that request be withdrawn.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.
____________________