[Congressional Record Volume 149, Number 112 (Friday, July 25, 2003)]
[Senate]
[Pages S9943-S9946]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  SINGAPORE AND CHILE TRADE AGREEMENT

  Mrs. FEINSTEIN. Mr. President, I come to the floor to make some 
comments on the Singapore and Chile trade agreements. Let me begin by 
saying I think it is really a shame that an otherwise good trade 
agreement with both Singapore and Chile, which I would otherwise 
support, I cannot support because immigration provisions were added to 
the bill, I believe contrary to the plenary powers of this Congress.
  But before I discuss the trade agreement, I would like to say at the 
outset that, as I see it, the fast-track process is a real problem. 
Under fast-track rules, there is limited debate, expedited procedures, 
deadlines, and no amendments. Congress can only vote up or down.
  While the fast-track procedures provide for consultations with 
Congress, there is really no guarantee that the President or the U.S. 
Trade Representative will ultimately respect the opinions and advice of 
Senators and House Members. In other words, we lose all ability to 
influence the content of a trade agreement negotiated under the fast-
track procedures.
  For me, from California, a place that has 36 million people and is 
either the fifth or sixth largest economic engine on Earth, trade 
agreements have major implications.
  I have always had a relationship with the USTR that apparently I do 
not have with this USTR, because of the size of California 
economically, and the interests internationally, that at least I be 
consulted in a meaningful way. In this case, consultation, as I 
understand it, constituted staff briefings.
  I wish to say, my staff does not cast a vote. I cast the vote. So if 
anyone is going to consult with the senior Senator from California, it 
ought to be with the senior Senator from California. None of those 
consultations took place.
  Not only that, I have sat on the Immigration Subcommittee for 10 
years now and you, Mr. President, are the new chair of that 
subcommittee. To the best of my knowledge, that subcommittee as a 
whole--maybe individual members have been able to have an impact, but 
as a whole, the subcommittee has not been able to have an impact. So 
any hearing we might have is de minimis in impact because the decision 
is already made. I am told by my staff that by the time any meaningful 
briefing took place, the agreement had been signed and sent over here. 
That is not the way to do business with somebody like me, who has 36 
million people, a huge economy, and all kinds of issues in virtually 
any trade agreement.
  Fast track really provides a disadvantage for the people of 
California. When I was lobbied to vote yes on fast track, I said to 
virtually every industry in California: Do you realize that if a 
President or a USTR negotiates an agreement, they can negotiate an 
agreement and let California suffer all kinds of repercussions and 
there is nothing your elected representative can do about it? That is 
fast track. When you have the fifth or sixth largest economy on Earth, 
it means a great deal.
  But, having said that, let me go to the immigration provisions of 
this free-trade agreement. The administration again insists it has had 
a number of discussions on these. Perhaps, again, they have with 
certain Members. They certainly have not with me. But immigration 
policy has long been well within the purview of Congress, and I believe 
it should stay there. Indeed, the Constitution gives Congress this 
power, and I do not think it is wise to give up that power to another 
branch of Government in this trade agreement or in any other.

  These agreements, as I read them, would create sweeping and permanent 
new categories of visas, regardless of whether Congress would deem 
these new entries valid or beneficial to our Nation's economy and 
welfare. Even more important, regardless of whether Congress might want 
to change these new categories at some later date, we cannot do it.
  Specifically, I oppose these agreements because they would create 
entirely new categories of nonimmigrant visas for free-trade 
professionals, thus permitting the admission of up to 5,400 
professionals from Singapore and up to 1,400 professionals from Chile 
each year.
  They would permit an indefinite extension of these visas.
  They would require the entry of spouses and children accompanying or 
following to join these professionals without limitation. So any number 
of family members can come in.
  They would require, without numerical limit, the entry of business 
persons under categories that parallel three other current visa 
categories. In other words, require their entry under other categories, 
the B-1 business visitor visa, the E-1 treaty trader or investor visa, 
and the L-1 intracompany transfer visa.
  These agreements would permit but not require the United States to 
deny the entry of a free-trade professional if his or her entry would 
adversely affect the settlement of a labor dispute.
  They would require that the United States submit disputes about 
whether it should grant certain individuals entry to an international 
tribunal. So if there was a pattern in our entry practice, we would 
have to submit that to an international tribunal, and a international 
tribunal would decide a sovereign right of the United States of 
America. That, to me, is unacceptable.
  These agreements are troubling in their permanence, their 
inflexibility, and their lack of congressional participation or 
oversight. The fact is, current law already permits foreign nationals 
to do all the things specified under the trade agreement. In fact, 
several thousand nationals from Chile and Singapore enter the United 
States each year. To the extent that changes need to be made, Congress 
can choose to make them.
  So this raises the question, Why, then, do these provisions need to 
be in a trade agreement? Perhaps the answer can be found by taking a 
closer look at these trade agreements, and more specifically at how 
exactly the agreements differ from current law.
  There are no numerical limits for any of the visa categories except 
the new H-1B(1) visa. There are no labor certifications under this 
bill. This is very significant. The United States can impose no prior 
approval procedures, petitions, labor certification tests, or other 
procedures of similar effect.
  Under the visitor visa provisions:

       A party shall normally accept an oral declaration as to the 
     principal place of business and the actual place of accrual 
     of profits.

  Where the party requires further proof, a letter from the employer 
attesting to these matters would serve as sufficient proof.
  These are all contained in the trade agreements. Thus, the facts 
speak for themselves.
  But behind the abstraction, the theories, and the statistics of the 
free-trade agreements we are considering today, there is one 
inescapable factor, and that is the working men and women of this 
country and what is going to happen to them.

[[Page S9944]]

  As I said in the Judiciary Committee, I am not the Senator from Chile 
or Singapore. I am the Senator from California. The people of my State 
are working in produce-rich fields. They are building new technologies 
for tomorrow. They are fiber optic engineers, computer programers, and 
physical therapists tending to the needs of others, all of whom are 
going to be affected by the immigration provisions of this bill.
  I know of engineers who have been out of work for more than a year 
who have sent out hundreds of resumes and are still looking for a job--
machinists, carpenters, and engineers by the tens of thousands looking 
for work in my State. Let me give you a couple of cases.
  Jenlih Hsieh is a 50-year-old U.S. citizen from Taiwan with a 
master's degree and more than 12 years of experience in Unix systems 
administration, filed a complaint with the Equal Employment Opportunity 
Commission, the U.S. Department of Justice and in Santa Clara County 
Superior Court. Hsieh alleges that SwitchOn Networks of Milpitas fired 
him after 6 months and replaced him with an H-1B worker. According to 
the complaint, the H-1B worker was earning $30,000 less a year, had 
only a bachelor's degree and much less experience.
  Why is this important? It is important because this bill provides 
that the Labor Department cannot do an investigation to see if the 
complaint is correct. The Labor Department cannot make a certification 
that there is no replacement of an American worker. If the 
administration chose to add this, the message it should send to each 
and every one of us is the administration fully contemplates that 
American workers are going to be replaced by the immigration provisions 
of this treaty and does not want their Department of Labor to be able 
to check that out and keep records to see if these are, in fact, 
sustainable complaints.
  Bob Simoni, 39, lost his consulting job at Toshiba American 
Electronics Components in Irvine in March 2002. Simoni, who has an MBA 
from the University of California-Los Angeles, had worked at Toshiba as 
a contract engineer for 2 years installing software. He came to work in 
February to find everyone packing their boxes. Toshiba was outsourcing 
the division to an India-based technology services company, Infosys, 
which employs H-1B workers in the United States. Simoni said Toshiba 
asked him to stay for 3 weeks to do ``knowledge transfer'' with Infosys 
employee Rakesh Gollapalli, who told him he had an H-1B visa. It hurt 
to be training someone who for all practical purposes was replacing 
him, and it felt wrong, Simoni said.
  You and I, Mr. President, are allowing this to happen with the H-1B 
visa being so extensively used in the United States, and we need to 
change that.
  The Boston Globe published an article June 3, 2003 that also reveals 
the fear many American workers have of losing their positions to H-1B 
and L-1 temporary workers. The story of John Malloy illustrates the 
experience of many Americans in the fields of technology, information, 
and engineering:

       Unix system administrator John Malloy used to work for 
     NASA, but hasn't had a steady job in over 2 years. ``I'm 40 
     years old, and my life is ruined,'' he said. Malloy said his 
     last job was at a local healthcare company, where he helped 
     train two workers from India. He said the Indian workers are 
     still on the job, but he was laid off. Mallory told the 
     reporter: ``I'm an open, fair-minded world citizen who loves 
     everybody . . . but I'm really starting to get frustrated.''

  This trend prompted The San Francisco Chronicle to publish articles 
on the topic on both May 25 and June 2, 2003. The articles describe the 
confusion surrounding the use of L-1 visas, citing confusion among 
companies, labor lawyers, and government agencies as to what type of 
use of the visas is legal. They also show increasing hostility from 
American high-tech workers surrounding L-1 visas.

       One example is the case of the dozen computer programmers 
     who were laid off from Siemens Information and Communication 
     Networks in Lake Mary FL, and replaced with foreign workers 
     using the L-1 program. Michael Emmons left Siemens last fall 
     just before his job there was to end. Emmons had worked as a 
     contract computer programmer for the company for 6 years, 
     first in San Jose, CA, and then in Florida. He said, ``This 
     is what they call outsourcing. I call it in-sourcing. Import 
     foreign workers, mandate your American workers to train them, 
     they lay off your Americans.''

  This is what we are allowing to happen. My view is that it is not a 
problem during boom time because there are enough jobs for all. But 
what happens when we have these rich programs is that when tough times 
come, employers succumb to the lure of being able to save $30,000 or 
$40,000 a worker. We are passing this treaty in the middle of huge 
unemployment in our country. We are creating a sinecure for these 
workers from other countries. I think that is a mistaken priority.
  Last week, I joined with my colleagues on the Judiciary Committee, 
Senators Sessions of Alabama and Graham of South Carolina, urging the 
President and the U.S. Trade Representative to withdraw the legislation 
implementing the Free Trade Agreements with Chile and Singapore.
  We also asked that the administration renegotiate or reconfigure the 
trade agreements without the immigration provisions and re-transmit a 
new version of the implementing legislation to Congress.
  I am extremely trouble that despite these concerns, which were 
expressed by several members of both chambers of Congress, the 
President sent Congress implementing legislation that would effectively 
expand the temporary admissions program without the express consent to 
do so.
  Let me say this: I very much doubt that the USTR is any kind of an 
expert on immigration. I must tell you that I have heard rumors that 
this was to be the precedent for some 50 other treaties to come after 
it. I think if this Senate and the House were to allow this to happen, 
we don't deserve to hold these jobs.
  I don't believe that this Senate should relinquish its plenary power 
over immigration to any administration nor to any country that is party 
to a trade agreement. Trade agreements are simply not the appropriate 
vehicle for enacting immigration law. Such agreements are meant to have 
a permanent impact. They cannot be amended or modified by subsequent 
legislation should Congress need to alter these provisions. I am not 
saying we should capriciously alter these provisions. I am saying that 
if the economic conditions change, the United States needs to respond 
to those economic changes rather than to be frozen into a pattern of 
dozens of agreements which freeze for all time certain things that may 
be proved to be inimical to our national interests.
  A recent commentary by Paul Magnusson in BusinessWeek asked the 
question I think we should all ask ourselves: ``Is a stealth 
immigration policy smart?'' Magnusson wrote:

       Complex trade agreements, which increasingly affect the 
     entire U.S. economy and require changes in U.S. laws and 
     social policies, should not be considered in secret, or in 
     isolation from all other legislation.

  That is exactly what happened with this agreement. The result of this 
kind of process is going to be an unwieldy patchwork of conflicting 
permanent law that will encumber an already overburdened immigration 
system, while exacerbating the growing backlogs of people already 
seeking to enter the United States.
  Such legislation will ultimately tie our hands when the national 
interest demands an alteration in the immigration provisions on which 
we are about to vote. Establishing separate policies and laws for 
different countries makes the day-to-day implementation more 
complicated and susceptible to error and abuse. And that is exactly 
what this does. Every country will have its own set of immigration 
laws, which can last forever under the terms of the treaty. How can any 
INS ever administer that?
  I have other concerns with the Trade Representative's decision to 
include so prescriptively the immigration provisions at hand. The 
Office of the U.S. Trade Representative has not demonstrated the need 
for negotiating these temporary entry provisions, nor does the office 
provide any evidence that current immigration law would be a barrier to 
meeting the United States obligation in furthering trade and goods and 
services. In fact, current law is sufficient to accommodate these 
obligations, as evidenced by the millions of temporary workers who 
enter the United States each year.
  Just listen to the numbers: In just 2002, 4,376,935 foreign nationals 
entered

[[Page S9945]]

under the B-1 temporary business visitor visa; 171,368 entered under 
the E treaty-trader visa; and another 313,699 entered under the L 
intracompany transfer visa; and an additional 370,490 entered the 
United States under the H-1B professional visa.
  If you add all of these up, we have over 5 million people just last 
year coming in under these temporary visas, of which probably half 
become permanent. And that is in addition to the regular immigration 
program.
  In all, the United States admitted a total of 5,232,492 foreign 
nationals under the current temporary visa categories. Of these 
numbers, 40,461 temporary business professionals entered from Chile and 
29,458 entered from Singapore.
  What is my point? My point is, there already is enough room to absorb 
under present visa categories. Over 40,000 from Chile and 30,000 from 
Singapore came in last year alone under these visa categories. Yet the 
USTR saw fit to say: It isn't enough, Senate and House. We are going to 
impose another permanent program.
  Free-trade visas should not be indefinitely renewable, and I am not 
going to vote for one that is. Under the trade agreements, the visas 
for temporary businesspersons entering under all the categories in the 
agreement are indefinitely renewable. So this is what transforms what, 
on paper, is a temporary visa-entry program into a permanent visa-entry 
program.
  While the trade agreements require temporary professionals to come in 
under the overall cap imposed on the H-1B visa, each visa holder would 
be permitted to remain in the United States for an indefinite period of 
time. That means permanent. Thus, employers could renew their 
employees' visas each and every year under the agreement with no 
limits, while also bringing in new entrants to fill up the annual 
numerical limits for new visas. So the thing spirals and expands 
exponentially. This effectively would obliterate Congress' ability to 
limit the duration of such visas even when it is in the national 
interest to do so.

  Thirdly, the agreement provides insufficient protection for workers, 
both domestic and foreign. Today, in our country, 15.3 million people 
are unemployed or underemployed in part-time jobs out of economic 
necessity or they have given up looking for work. Of that number, 9.4 
million are considered officially unemployed.
  These unemployment figures are the highest in a decade, and yet we 
are doing this program now. In California, 1.17 million people are out 
of work. In the San Francisco Bay area, the technology boom and 
subsequent bust has created a huge pool of unemployed skilled labor. In 
San Jose alone, 47,160 people--or nearly 10 percent of the population--
are looking for jobs.
  More and more out-of-work technology workers are filing complaints 
with the Government or going to court to protest perceived abuses of 
temporary visa programs. And yet the administration has seen fit to 
push through a free-trade agreement with immigration provisions of 
which very few of us could predict the consequences.
  Although employers are, by and large, good actors, the provisions in 
the implementing legislation would expose many more workers--and don't 
forget this--to displacement, to wage exploitation, and to other forms 
of abuse. These provisions, as drafted in the trade agreement, would 
increase the number of temporary foreign workers exposed to 
exploitation and leave more to face an uncertain future. By making the 
visas indefinitely extendable, albeit 1 year at a time, these workers 
will remain in limbo with year-to-year extensions of their stay.
  Despite these concerns, the USTR has seen fit to push through a free-
trade agreement with immigration provisions that significantly weaken 
the U.S. and temporary foreign worker protections under current 
immigration law in several ways.
  First, the provisions would expand the types of occupations currently 
covered under H-1B to include: management consultants, disaster relief 
claims adjusters, physical therapists, and agricultural managers--
professions that do not require a bachelor's degree. Nor would 
employers be required to demonstrate a shortage of workers in these 
professions before hiring foreign nationals under the agreement. This 
opens the door to the inclusion of new occupations in the trade 
agreement that are not currently included in the H-1B program.
  In a sense, what this means is, it is a special program through which 
you can replace an American worker, pay less for that worker, and keep 
that worker so that worker isn't going to complain because if he or she 
does, the visa is not going to get renewed the next year. And if that 
worker succumbs to any kind of exploitation, his family comes over, her 
family comes over, and they have a lifetime sinecure, not only with the 
company but within the United States. No American worker has that.

  The current H-1B program defines a specialty occupation as one that 
requires the application--and this is important--of a body of highly 
specialized knowledge. That is there for one reason, to ensure 
employers don't abuse the program to undercut American workers in 
occupations where there is no skill shortage. What this agreement does 
is delete the word ``highly.'' So that would lower the standard for 
admission by broadening the definition of specialty occupation to 
include any job that requires the application ``of a body of 
specialized knowledge.''
  It is a significant weakening to allow less specialized workers to 
come in and, I believe, to replace American workers at less money.
  Neither the free-trade agreement nor the implementing legislation 
require the employer to attest and the Department of Labor to certify 
that the employer has not laid off a U.S. worker either 90 days before 
or after hiring the foreign worker before the foreign national is 
permitted to enter the United States.
  Why do you suppose that is in there? That is in there so any American 
employer that wants to can keep an American worker until they can 
replace them with a foreign worker at less money and then do so. 
Because those simple precautions that made this more difficult to do 
are gone. Nobody should believe, when they vote for this legislation, 
that it is not a foreign-worker replacement program. I have just given 
the documentation that indicates exactly how it is going to be done.
  Once you eliminate the labor certification, you eliminate the 
requirement that the Department of Labor makes an investigation to 
verify the employer's attestation is accurate and truthful before 
permitting the entry of a foreign national. Labor certifications are 
expressly prohibited under this trade agreement. Again, it is the 
foreign worker employment program in the United States displacing 
American workers, and this is how to do it.
  Moreover, the implementing provisions limit the authority of the 
Labor Department by providing that it may review attestations only for 
completeness and only for inaccuracies. So the screw is being tightened 
on the Labor Department. You can't investigate, you can't certify, and 
you can only review the application to see whether it is complete and 
accurate. To add insult to injury, you have to provide the 
certification mandatorily within 7 days. So neither the trade agreement 
nor the implementing language provides the Department of Labor 
authority to initiate investigations or conduct spot checks at 
worksites to uncover instances of U.S. worker displacement and other 
labor violations pertaining to the entry of foreign workers. It is 
really bad.
  This is troublesome, given that in the last 2 fiscal years the 
Department of Labor investigated 166 businesses with H-1B violations. 
As a result of those investigations, H-1B employers were required to 
pay more than $5 million in back pay awards to 678 H-1B workers. That 
is proof of what is going on. There is proof that companies do this. 
This is not new thought. I am not reaching to find a reason. This is 
happening. And in a tough economy, it is going to happen more. Those of 
us who are elected by workers to protect them fail in our obligation to 
do so.
  While the administration has included a cap on the number of 
professionals entering under the H-1B(1) category, there are no such 
limitations on the number of temporary workers entering on other visa 
categories, including the B-1 visitor visa, the E-treaty/investor visa, 
and the L-1 intracompany visa.

[[Page S9946]]

  None of these categories are numerically limited under the agreement. 
Once enacted, Congress may not subsequently impose caps on these 
categories for nationals entering pursuant to this agreement.
  The trade agreement expressly prohibits the imposition of labor 
certification tests or other similar conditions on temporary workers 
entering from Chile and Singapore. I am amazed the Governments of Chile 
and Singapore want this. I am amazed they want their people to come in 
and face exploitation in the United States.
  While Congress could certainly correct some aspects of the law 
implementing the trade agreements, it would be limited in what it could 
do by the underlying trade agreement itself. For example, if Congress 
decided to better protect U.S. businesses and workers by amending the 
laws governing the L-1 visa category to require a labor certification 
or a numerical limit before a foreign worker from Chile or Singapore 
could enter the United States, it would not be able to do so. Both are 
plausible options for dealing with perceived abuses in the visa 
category. However, both trade agreements provide ``neither party may, 
A, as a condition for temporary entry under paragraph 1, require labor 
certifications or other procedures of similar effect; or, B, impose or 
maintain any numerical restriction relating to temporary entry under 
paragraph 1.''
  Again, there is something a little insidious in this, in the 
formulation of a new program with these specific specifications in view 
of the fact of the more than 50,000 Chilean and Singaporean workers 
coming in in our other business visitor visa categories. So the 
significance of this is creating a new program and making it permanent 
and taking out any meaningful labor certification. I figure every one 
of these people can replace an American worker for less money. 
Otherwise, why do this?
  These provisions significantly limit congressional authority, A, to 
establish labor protections when warranted and, B, to limit the number 
of visas that could be issued to nationals in Chile and Singapore, 
should we deem it is in the national interest.
  I don't think we should relinquish this constitutional authority. It 
is really for this reason, on behalf of the millions of Americans who 
are unemployed and underemployed and particularly in these exact 
categories, I cannot tell you the workers trained with graduate degrees 
being replaced, with families. And they can't find jobs. And we fall 
right into the trap and produce an agreement that is going to say: 
Labor Department, the only thing you can check is the accuracy of an 
application for name, address, and phone number, and whether it is all 
filled in, and then you must certify it within 7 days. And John Smith, 
who has worked in the company for 10 years, has a graduate degree, gets 
to train this worker, who is paid $30,000 less--and I gave you actual 
cases where this is happening--and the worker goes home to a mortgage 
on a home and a car and three kids in school.

  Is this what we are elected to do? I am not going to do it. If I 
could filibuster, I would filibuster it. I am really angry about it 
because it is sleight of hand. There was no meaningful consultation. 
Mr. Zoellick never picked up the phone and called me--or his No. 2, 3, 
4, or 5--and said: This is what we are thinking of doing. I know you in 
California have the highest unemployment in 10 years and there has been 
a high-tech bubble burst. I know a lot of your professionals are out on 
the street. What do you think of this? I would say: No way, Jose.
  So I am mad and I hope every working man and woman in this country is 
mad, too. I am mad because--Mr. President, you know, as you were in 
committee--we asked to send it back. We were refused. And there is no 
delay. Bingo, it is out on the floor. It is going to be ramrodded 
through this body.
  Well, one thing I have learned is that the working men and women of 
this country are not stupid. Of all these visitor visas, we have 5 
million granted in just a year. People are going to catch on. The word 
is going to get around. I very much regret that the administration 
won't eliminate the immigration section. This would be a perfectly good 
treaty without them. Five million people came in last year under the H-
1B visas--5 million. Plenty of room. We don't need to create a new 
permanent program, tighten the housing supply, tighten the school 
supply, bring in all these families, and not be able to take care of 
our own.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.

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