[Congressional Record Volume 144, Number 152 (Thursday, November 12, 1998)]
[Senate]
[Pages S13001-S13002]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT

 Mr. KENNEDY. Mr. President, I commend Senator Abraham, the 
Chairman of the Senate Immigration Subcommittee, for his leadership in 
reaching this acceptable compromise that addresses the needs of our 
high-tech industry and is fair to U.S. workers. I also commend the 
White House for its strong commitment to protecting the U.S. labor 
force. This is an issue of major importance to the high-tech industry 
and U.S. workers. High-tech jobs are growing at three times the rate of 
other jobs. Over the next ten years, high-tech computer companies will 
need 1.3 million additional employees.
  Few dispute the fact that today, U.S. high-tech companies are unable 
to find enough skilled workers to meet the mushrooms demands of their 
rapidly growing industry. Universities are also unable to obtain enough 
talented faculty members and researchers to fill critical high-tech 
academic positions. If these shortages persist, the growth and vitality 
of U.S. high-tech companies will be undermined and our role as a leader 
in technology and research will be diminished.
  The obvious solution to this current crisis is to increase the number 
of temporary visas available to skilled foreign workers. But the 
increase should not be permanent. Our immigration laws should not 
jeopardize opportunities for young Americans, downsized defense 
workers, and others who wish to enter the dynamic field of high-tech 
industries.
  The current compromise reaches a fair balance--by temporarily 
increasing the number of high-tech visas over the next three years, and 
then reinstating the current annual cap of 65,000 visas after the third 
year.
  Many of the foreign workers who will benefit from this compromise are 
exceptionally talented. They represent the ``best and brightest'' the 
world has to offer. We welcome these accomplished individuals and the 
unique skills they will bring to strengthen and diversify our economy.
  However, most of the positions that will be filled by these 
additional foreign workers are simply good middle class jobs. Most of 
the jobs are lower level computer programmers. Many are physical 
therapists, occupational therapies, or nurses. It is shameful that U.S. 
workers do not have the skills to compete for these jobs. The fact that 
American workers lack the training skills to compete for these good 
jobs is an incident of our educational system. Clearly, we need to do 
more to find a long-term solution to this festering problem. And this 
bill gives three years to address this failure.
  I have long insisted that any legislation increasing these visas 
should substantially invest in improved job training for U.S. workers 
and better education for U.S. students. We must give the U.S. workers 
the skills they need to qualify for these jobs. It makes no sense to 
throw in the towel by increasing quotas--even temporarily--without also 
investing in our own labor force. As a nation, we have an obligation to 
invest in our own workers and students.
  Many firms are doing the right thing. Many of the large computer 
companies spend millions of dollars each year training their workers, 
and encouraging young men and women to choose high-tech careers. The 
compromise before us today enhances that commitment.

[[Page S13002]]

  Earlier this year, Senator Feinstein and I proposed a way to provide 
genuine training for American workers, without costing the taxpayer a 
single penny. I am pleased that the legislation before the Senate today 
incorporates our idea and achieves this goal. It contains a reasonable 
fee for visa petitions and visa renewals for high-tech foreign workers. 
The $500 visa application fee included in the compromise will generate 
approximately $75 million a year.
  One third of these funds will be used to fund National Science 
Foundation scholarships in math, engineering, and computer science for 
low-income students. The remaining funds will be used to train U.S. 
workers. As a result, many students and many workers will obtain the 
skills necessary to compete successfully for these good jobs. It is 
imperative that we provide as many U.S. workers as possible with the 
skills and specialized training to qualify for these positions.
  The high-tech industry must also do a better job of recruiting U.S. 
workers. We have all read the reports about unscrupulous employers who 
pay only lip-service to recruiting U.S. workers, because they know they 
can obtain cheaper foreign labor. It makes sense that employers should 
recruit in the U.S. first, in cities like Boston, Detroit, or Los 
Angeles, before bringing workers in from Beijing, New Delhi, or Moscow. 
Only if employers cannot find qualified U.S. workers, should they be 
allowed to recruit and hire foreign workers.
  The following are a few examples of how U.S. employers have only 
payed lip service to recruiting U.S. workers.
  A high-tech facility in New Mexico announced a hiring freeze and 
refused to accept job applications. But at the same time, they brought 
in 53 foreign workers under the high-tech visa program.
  Alan Ezer is a 45-year-old computer programmer with 10 years of 
experience in the field. He has kept his skills up to date. He was 
willing to take a pay cut to stay in the industry. After he was laid 
off, he sent out 150 resumes. He got only one job interview and no job 
offers.
  Rose Marie Roo is an experienced computer programmer. But when no one 
would hire her to do computer work, she and her husband opened a bed 
and breakfast in Florida.
  Peter Van Horn, age 31, has a master's degree in computer science. He 
lives in California, but employers won't hire him either.
  The list goes on and on. Many of the nation's high-tech firms are 
blatantly turning away qualified U.S. workers while appealing to 
Congress for more foreign workers.
  As a result of this problem, Senator Feinstein and I fought long and 
hard to ensure that strong recruitment requirements would be included 
in the high-tech visa legislation. This compromise contains a 
worthwhile provision on this issue, and I commend Senator Abraham for 
supporting our effort.
  High-tech companies will be required to demonstrate that they have 
taken good faith steps to recruit in the U.S., according to industry-
wide standards. Companies will be required to offer jobs to any U.S. 
workers who applies for a position and is equally or better qualified 
for the job than the foreign applicant. U.S. workers should have first 
crack at these jobs, and with this legislation, they will have it.
  We should also make every effort to retain skilled U.S. workers 
presently holding these high-tech positions. There have been countless 
media stories about predatory high-tech computer firms firing talented 
middled-aged employees and replacing them with foreign workers willing 
to work longer hours for less pay. In the most flagrant instances, the 
replaced U.S. workers have even been asked to train their foreign 
replacement.
  I am pleased that this compromise contains needed protections to 
guard against such abusive layoffs. Until now, it was legal under our 
immigration laws for an employer to fire U.S. workers and replace them 
with cheaper foreign workers. As a condition of participating in this 
compromise, employers covered under the legislation must attest that 
they have not laid off U.S. workers and tried to replace them with 
foreign workers.
  The compromise contains many worthwhile provisions, but it also has 
flaws. One of the most serious defects is that the new recruitment and 
layoff attestations do not cover all employers hiring skilled foreign 
workers. The compromise exempts the largest high-tech companies from 
the new attestation requirements, even though some of these firms are 
the most serious violators.
  Nevertheless, the Department of Labor will have increased enforcement 
powers. Under the previous law, the Department of Labor was restricted 
to waiting for complaints to be filed before they could act. The 
Department will now have authority to investigate compliance if they 
receive specific credible information that a violation has occurred. 
Additionally, the Department of Labor will now be empowered to conduct 
random investigations of even exempt employers if they are found to 
have committed violations. Violators will face stiffer fines and other 
punishment.
  A second flaw in the legislation is the failure to cap the number of 
visas made available to health care workers. The effect of the 
abolition of this cap is that U.S. health care workers, particularly 
physical and occupational therapists, will be increasingly unable to 
find work. A recent study by the American Physical Therapy Association 
indicates that by the year 2000, there will be an 11% surplus of 
physical therapists in the United States. By the year 2005, this 
surplus will increase to 20-30%. Faced with these estimates, it is 
impossible to conclude that there is a shortage of physical therapists 
in this country. I urge the Department of Labor to reconsider its 
classification of physical and occupational therapy as occupations for 
which there is a blanket shortage of labor.
  Despite these flaws, the compromise is, on the whole, fair to both 
U.S. and foreign workers. It provides much-needed protections for 
foreign workers. We must make sure that foreign workers who are brought 
to this country are not abused by their employers. The law requires 
that temporary foreign workers must be paid the prevailing wage for the 
specialty work they perform, including salary and benefits. This 
compromise requires employers to treat all similarly situated workers 
equally.
  Finally, I am pleased that the compromise contains whistleblower 
protections I had recommended earlier this year. Despite serious 
abuses, few complaints were filed by workers because they were afraid 
of retaliation. Foreign workers were afraid that if they complained 
they would lose their jobs and be forced to leave the country. American 
workers were afraid to complain because they feared being blackballed 
in the industry.
  This compromise protects workers who courageously report violations. 
Those who report abuses to the Department of Labor may request that 
their identity not be disclosed. And more important, workers who file 
complaints or cooperate with investigations cannot be intimidated, 
threatened, restrained, coerced, blacklisted, or discharged by their 
employer.
  Overall, this compromise is a reasonable solution of the current 
difficult problem. It deserves bipartisan support.

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