[Congressional Record Volume 151, Number 14 (Thursday, February 10, 2005)]
[Senate]
[Pages S1280-S1284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. MIKULSKI (for herself, Mr. Gregg, Mr. Leahy, Mr. Warner, 
        Mr. Chafee, Mr. Thomas, Mr. Levin, Mr. Salazar, Mr. Allen, Mr. 
        Kennedy, Mr. Jeffords, Ms. Collins, Mr. Sarbanes, Ms. Snowe, 
        Mr. Dorgan, Mr. Reed, Mr. Dayton, and Mr. Kerry):
  S. 352. A bill to revise certain requirements for H-2B employers and 
require submission of information regarding H-2B non-immigrants, and 
for other purposes; to the Committee on the Judiciary.
  Ms. MIKULSKI. Mr. President, today I rise to introduce legislation 
that is desperately needed by small and seasonal businesses all over 
the Nation. These businesses are in crisis. They need seasonal workers 
before the summer so that they can survive. For many years they have 
relied on the H2B Visa program to meet these needs, but this year they 
can't get the temporary labor they need because they have been shut out 
of the H-2B visa program. That program lets them hire temporary foreign 
workers when no American workers are available.
  So today, I join with my colleague Senator Gregg to introduce 
legislation that provides a quick fix to the H-2B problem. The ``Save 
our Small and Seasonal Businesses Act'' will help these employers by 
doing three things--temporarily exempting good actor workers from the 
H-2B cap, protecting against fraud in the H-2B program and providing a 
fair and balanced allocation system for H-2B visas. I urge my 
colleagues to work with us to pass this legislation quickly to save 
these businesses and the thousands of American jobs they provide.
  Many in this body know about the H-2B crisis. All this week we have 
been talking about the litigation crisis--but a real crisis to 
thousands of small and seasonal businesses is the worker shortage they 
face as they approach the summer season. These small businesses count 
on the H-2B Visa Program to keep their businesses afloat. And this 
year, because the cap of 66,000 was reached so early in the year, many 
of these businesses will be unable to get the seasonal workers that 
they need to survive.
  Hitting the cap so early has had a great impact on Maryland. We have 
a lot of summer seasonal businesses in Maryland, on the Eastern Shore, 
in Ocean City or working the Chesapeake Bay. Many of our businesses use 
the program year after year. They hire all the American workers they 
can find, but they need additional help to meet seasonal demands. 
Because the cap was reached so early this year, for the second year in 
a row, summer employers face a disadvantage. They can't use the 
program, so they can't meet their seasonal needs and many will be 
forced to limit services, lay-off permanent U.S. workers or, worse yet, 
close their doors.
  These are family businesses and small businesses in small communities 
in Maryland. If the business suffers the whole community suffers. For 
seafood companies like J.M. Clayton, what they do is more than a 
business, it's a way of life. Started over a century ago and run by the 
great grandsons of the founder, J.M. Clayton works the waters of the 
Chesapeake Bay, supplying crabs, crabmeat and other seafood, including 
Maryland's famous oysters, to restaurants, markets, and wholesalers 
allover the Nation. It is the oldest working crab processing plant in 
the world and by employing 65 H-2B workers the company can retain over 
30 full-time American workers.
  But its not just seafood companies that have a long history on the 
Eastern Shore. It's companies like S.E.W. Friel Cannery, which began 
its business over 100 years ago when there were 300 canneries on the 
Eastern Shore. But now those others are gone and Friel's is the last 
corn cannery left. Ten years ago, when the cannery could not find local 
workers, it turned to the new H-2B Visa Program. It has used the 
program every year since, and many workers are repeat users who come 
each year and then go home after the season. What's important is that 
having this help each year has not only allowed the company to maintain 
its American workforce, but it has paved the way for local workers to 
return to the cannery. They now employ 75 full time and 190 seasonal 
workers, along with 70 farmers and additional suppliers.

  Now these employers can't just turn to the H-2B program whenever they 
want seasonal workers. First, employers must try to vigorously recruit 
U.S. workers. They must demonstrate to the Department of Labor that 
there are no U.S. workers available. Only after that are they allowed 
to fill seasonal vacancies with H-2B visa workers. The workers that 
they bring in often participate in the H-2B program year after year. 
They often work for the same companies. But they cannot and do not stay 
in the U.S. They return to their home countries, to their families and 
their U.S. employer must go through the whole visa process again the 
following year to get them back. That means an employer must prove 
again to the Department of Labor that they cannot get U.S. workers.
  This legislative fix keeps that visa process in place. It's a short-
term legislative fix to solve the immediate H-2B visa shortage. It does 
not take the place of comprehensive immigration reform.
  This legislation is a temporary two year fix. And it does four 
things:
  One, it exempts returning seasonal workers from the cap. These are 
workers who have already successfully participated in the H-2B Visa 
Program. They received a visa in one of the past three years and have 
returned home to their families after their seasonal employment with a 
U.S. company.
  Everyone must still play by the rules. Employers must go through the 
whole visa process, prove they need the seasonal help and only after 
that are returning employees exempt from the cap. Employees must be 
those who have left the U.S. and are requesting a new H-2B visa to come 
back for another season. This new system rewards those who have played 
by the rules, worked hard and successfully participated in the program. 
And the bill gives a helping hand to businesses by allowing them to 
retain workers who they have already trained to do their seasonal jobs.
  Next, this bill creates new anti-fraud provisions. To make sure that 
everyone is playing by the rules and that no one is misusing the 
program. And it gives government some teeth to prevent fraud and 
enforce our nation's immigration laws. A $150 anti-fraud fee ensures 
that government agencies processing the H-2B visas will get added 
resources to detect and prevent fraud. New sanction provisions for 
those who misrepresent facts on a petition further strengthens DHS's 
enforcement power. This section also sends a strong message to 
employers--don't play games with U.S. jobs. Our bill reserves the 
highest penalties for employer actions which harm U.S. workers.
  And, this bill creates a fair allocation of visas. Now, summer 
employers lose out because winter employers get all the visas. This 
bill makes the system fair for all employers. We reserve half of the 
visas for the winter and half for the summer. Allocating visas ensures 
that, until a long-term solution is reached, all employers will have an

[[Page S1281]]

equal chance of getting the workers that they need.
  Finally, the bill adds some simple reporting requirements. So that 
DHS gives Congress the information it needs to make informed decisions 
about the H-2B visa program in the future.
  This is a quick and simple fix. It lasts just 2 years--the rest of 
this year and next. And it does not get in the way of comprehensive 
immigration reform.
  I worked with my colleagues to get a bill with strong bipartisan 
support, a bill that would work.
  This bill is realistic. It provides a temporary solution because 
immediate action is needed to help these small and seasonal businesses 
stay in business. Yes, we need to help them now. Their seasons start 
soon. And if they don't get seasonal workers this year, there may not 
be any businesses around next year to help.
  Every Member of the Senate who has heard from their constituents--
whether they are seafood processors, landscapers, resorts, timber 
companies, fisheries, pool companies or carnivals--knows the urgency in 
their voices, knows the immediacy of the problem and knows that the 
Congress must act now to save these businesses. I urge my colleagues to 
join this effort, support the Save our Small and Seasonal Businesses 
Act, and push this Congress to fix the problem today.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 352

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Save Our Small and Seasonal 
     Businesses Act of 2005''.

     SEC. 2. NUMERICAL LIMITATIONS ON H-2B WORKERS.

       (a) In General.--Section 214(g) of the Immigration and 
     Nationality Act (8 U.S.C. 1184(g)) is amended by adding at 
     the end the following:
       ``(9) An alien counted toward the numerical limitations of 
     paragraph (1)(B) during any one of the 3 fiscal years prior 
     to the submission of a petition for a nonimmigrant worker 
     described in section 101(a)(15)(H)(ii)(b) may not be counted 
     toward such limitation for the fiscal year in which the 
     petition is approved.''.
       (b) Effective Date.--
       (1) In general.--The amendment in subsection (a) shall take 
     effect as if enacted on October 1, 2004, and shall expire on 
     October 1, 2006.
       (2) Implementation.--Not later than the date of enactment 
     of this Act, the Secretary of Homeland Security shall begin 
     accepting and processing petitions filed on behalf of aliens 
     described in section 101(a)(15)(H)(ii)(b), in a manner 
     consistent with this Act and the amendments made by this Act.

     SEC. 3. FRAUD PREVENTION AND DETECTION FEE.

       (a) Imposition of Fee.--Section 214(c) of the Immigration 
     and Nationality Act (8 U.S.C. 1184(c)), as amended by section 
     426(a) of division J of the Consolidated Appropriations Act, 
     2005 (Public Law 108-447), is amended by adding at the end 
     the following:
       ``(13)(A) In addition to any other fees authorized by law, 
     the Secretary of Homeland Security shall impose a fraud 
     prevention and detection fee on an employer filing a petition 
     under paragraph (1) for nonimmigrant workers described in 
     section 101(a)(15)(H)(ii)(b).
       ``(B) The amount of the fee imposed under subparagraph (A) 
     shall be $150.''.
       (b) Use of Fees.--
       (1) Fraud prevention and detection account.--Subsection (v) 
     of section 286 of the Immigration and Nationality Act (8 
     U.S.C. 1356), as added by section 426(b) of division J of the 
     Consolidated Appropriations Act, 2005 (Public Law 108-447), 
     is amended--
       (A) in paragraphs (1), (2)(A), (2)(B), (2)(C), and (2)(D) 
     by striking ``H1-B and L'' each place it appears;
       (B) in paragraph (1), as amended by subparagraph (A), by 
     striking ``section 214(c)(12)'' and inserting ``paragraph 
     (12) or (13) of section 214(c)'';
       (C) in paragraphs (2)(A)(i) and (2)(B), as amended by 
     subparagraph (A), by striking ``(H)(i)'' each place it 
     appears and inserting ``(H)(i), (H)(ii), ''; and
       (D) in paragraph (2)(D), as amended by subparagraph (A), by 
     inserting before the period at the end ``or for programs and 
     activities to prevent and detect fraud with respect to 
     petitions under paragraph (1) or (2)(A) of section 214(c) to 
     grant an alien nonimmigrant status described in section 
     101(a)(15)(H)(ii)''.
       (2) Conforming amendment.--The heading of such subsection 
     286 is amended by striking ``H1-B and L''.
       (c) Effective Date.--The amendments made by subsections (a) 
     and (b) shall take effect on October 1, 2005.

     SEC. 4. SANCTIONS.

       (a) In General.--Section 214(c) of the Immigration and 
     Nationality Act (8 U.S.C. 1184(c)), as amended by section 3, 
     is further amended by adding at the end the following:
       ``(14)(A) If the Secretary of Homeland Security finds, 
     after notice and an opportunity for a hearing, a substantial 
     failure to meet any of the conditions of the petition to 
     admit or otherwise provide status to a nonimmigrant worker 
     under section 101(a)(15)(H)(ii)(b) or a willful 
     misrepresentation of a material fact in such petition--
       ``(i) the Secretary of Homeland Security may, in addition 
     to any other remedy authorized by law, impose such 
     administrative remedies (including civil monetary penalties 
     in an amount not to exceed $10,000 per violation) as the 
     Secretary of Homeland Security determines to be appropriate; 
     and
       ``(ii) the Secretary of Homeland Security may deny 
     petitions filed with respect to that employer under section 
     204 or paragraph (1) of this subsection during a period of at 
     least 1 year but not more than 5 years for aliens to be 
     employed by the employer.
       ``(B) The Secretary of Homeland Security may delegate to 
     the Secretary of Labor, with the agreement of the Secretary 
     of Labor, any of the authority given to the Secretary of 
     Homeland Security under subparagraph (A)(i).
       ``(C) In determining the level of penalties to be assessed 
     under subparagraph (A), the highest penalties shall be 
     reserved for willful failures to meet any of the conditions 
     of the petition that involve harm to United States workers.
       ``(D) In this paragraph, the term `substantial failure' 
     means the willful failure to comply with the requirements of 
     this section that constitutes a significant deviation from 
     the terms and conditions of a petition.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on October 1, 2005.

     SEC. 5. ALLOCATION OF H-2B VISAS DURING A FISCAL YEAR.

       Section 214(g) of the Immigration and Nationality Act (8 
     U.S.C. 1184(g)), as amended by section 2, is further amended 
     by adding at the end the following new paragraph:
       ``(10) The numerical limitations of paragraph (1)(B) shall 
     be allocated for a fiscal year so that the total number of 
     aliens who enter the United States pursuant to a visa or 
     other provision of nonimmigrant status under section 
     101(a)(15)(H)(ii)(b) during the first 6 months of such fiscal 
     year is not more than 33,000.''.

     SEC. 6. SUBMISSION TO CONGRESS OF INFORMATION REGARDING H-2B 
                   NONIMMIGRANTS.

       Section 416 of the American Competitiveness and Workforce 
     Improvement Act of 1998 (title IV of division C of Public Law 
     105-277; 8 U.S.C. 1184 note) is amended--
       (1) by striking ``Attorney General'' each place that term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following new subsection:
       ``(d) Provision of Information.--
       ``(1) Quarterly notification.--Beginning not later than 
     March 1, 2006, the Secretary of Homeland Security shall 
     notify, on a quarterly basis, the Committee on the Judiciary 
     of the Senate and the Committee on the Judiciary of House of 
     Representatives of the number of aliens who during the 
     preceding 1-year period--
       ``(A) were issued visas or otherwise provided nonimmigrant 
     status under section 101(a)(15)(H)(ii)(b) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)); or
       ``(B) had such a visa or such status expire or be revoked 
     or otherwise terminated.
       ``(2) Annual submission.--Beginning in fiscal year 2007, 
     the Secretary of Homeland Security shall submit, on an annual 
     basis, to the Committees on the Judiciary of the House of 
     Representatives and the Senate--
       ``(A) information on the countries of origin of, 
     occupations of, and compensation paid to aliens who were 
     issued visas or otherwise provided nonimmigrant status under 
     section 101(a)(15)(H)(ii)(b) of the Immigration and 
     Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) during the 
     previous fiscal year;
       ``(B) the number of aliens who had such a visa or such 
     status expire or be revoked or otherwise terminated during 
     each month of such fiscal year; and
       ``(C) the number of aliens who were provided nonimmigrant 
     status under such section during both such fiscal year and 
     the preceding fiscal year.
       ``(3) Information maintained by state.--If the Secretary of 
     Homeland Security determines that information maintained by 
     the Secretary of State is required to make a submission 
     described in paragraph (1) or (2), the Secretary of State 
     shall provide such information to the Secretary of Homeland 
     Security upon request.''.

  Mr. WARNER. Mr. President, I rise today in support of S. 352, the 
Save Our Small and Seasonal Businesses Act. This legislation, which I'm 
proud to cosponsor, would provide emergency relief to thousands of 
small and seasonal businesses across the country, many of which are 
significant employers in the Commonwealth of Virginia.
  I am pleased to be joined in this effort by my colleague from 
Virginia, Senator George Allen. I particularly would like to thank 
Senator Barbara Mikulski and Senator Judd Gregg, the sponsors of this 
bipartisan bill, for their leadership in this area.

[[Page S1282]]

  Our legislation is simple. It makes common-sense reforms to our H-2B 
visa program that will allow our small and seasonal companies an 
opportunity to remain open for business. Without these modifications, 
these employers will continue to struggle in their efforts to find the 
necessary employees to keep their businesses running.
  The H-2B visa program is designed to allow nonagricultural businesses 
to supplement their workforce with non-immigrant workers when American 
workers cannot be found. The cap is set at 66,000 per fiscal year, 
which begins on October 1 of each year. Employers can only apply for a 
visa 120 days before the work is needed.
  For each of the last two years, this statutory cap was reached soon 
after the fiscal year began. In 2004, the cap was reached on March 20. 
As a result, many businesses, mostly summer employers, were unable to 
obtain the temporary workers they needed because the cap was filled 
prior to the day they could even apply for the visas.
  Consequently, these businesses sustained significant economic losses.
  This year the H-2B visa cap was reached on January 3, 2005. Now, even 
more businesses, especially in the seafood industry which has a long 
history in Virginia and the Chesapeake Bay, are susceptible to 
significant losses.
  The hardships in these and other businesses are very real. Many in 
the seafood industry in Virginia have come to my office, looked me 
straight in the eye, and told me that their businesses aren't going to 
make it another year if something isn't done. Only through passage of 
this legislation can this detrimental cycle be interrupted and these 
business can be saved.
  There are three main criticisms of this program which I am certain 
some will raise: these H-2B workers are taking jobs away from 
Americans; automation of these jobs makes H-2B workers unnecessary; and 
finally, these workers come into the U.S. under the guise of returning 
home after they've finished, but they never do. In my view, these 
criticisms of the H-2B program simply do not reflect the reality.
  Believe me, I am a strong supporter of efforts to help those 
Americans who want to work get the skills they need to be successful in 
the workforce. But these H-2B workers are not taking jobs from 
Americans, they are filling in the gaps left vacant by Americans that 
don't want them. The jobs we are talking about here are seasonal, labor 
intensive, and require a certain amount of skill, mainly in the areas 
of oyster and crab harvesting, seafood processing, landscaping, 
reforestation, and seasonal resorts and other hospitality services.
  Furthermore, most of these jobs cannot be automated. What kind of 
machine will you use to fully landscape a yard, to arrange and plant 
flowers? Some in the seafood industry already tried to automate parts 
of crab harvesting, but it was a complete failure. The machines failed 
to remove most of the bits of crab shells from the meat, and the 
consumers flat out rejected it.
  As for the criticism that these temporary workers won't leave, a long 
review of the management of this program reveals otherwise. The 
employers have successfully ensured that the workers return to their 
home country. If they don't, employers aren't able to participate in 
the program next year, and neither are the workers. Most consulates in 
their home countries require the workers to present themselves 
personally to prove that they have returned home.
  The future success of the H-2B visa program rests on the ability of 
businesses to participate in it, but right now, many will be denied 
access to the program for the second year in a row. The bill introduced 
today helps fix this problem by focusing on three main objectives to 
help make the H-2B program more effective and more fair.
  First, the bill will reward good workers and employers by exempting 
from the cap H-2B workers who have participated in the program 
successfully in one of the past three years. These are companies and 
employees that have faithfully abided by the law, and they have a 
successful track record of working together.
  Second, the bill will make sure that the government agencies 
processing the H-2B visas have the resources they need to detect and 
prevent fraud. Starting on October 1, 2005, employers participating in 
the program will pay an additional fee that will be placed in a Fraud 
Prevention and Detection account. The Departments of State, Homeland 
Security, and Labor can use these funds to educate and train their 
employees to prevent and detect fraudulent visas.
  Finally, the bill implements a visa allocation system that is fair 
for all employers. Half of the 66,000 visas will be reserved for 
employers needing workers in the winter and the other half will be 
reserved for companies needing workers for the summer. This provision 
allows both winter employers and summer employers an equal chance to 
obtain the workers they desperately need.
  These seasonal businesses just can't find enough American workers to 
meet their business needs. And ultimately, that is why this program is 
so important. Without Americans to fill these jobs, these businesses 
need to be able to participate in the H-2B program. The current system 
isn't treating small and seasonal businesses fairly and must be 
reformed if we want these employers to stay in business.
  In closing, I strongly support this legislation, and I hope my 
colleagues in the Senate will join with me to help these small and 
seasonal businesses by passing this legislation as quickly as possible.
  Mr. JEFFORDS. Mr. President, I am proud to be a strong supporter and 
original cosponsor of the Save Our Small and Seasonal Businesses Act, 
which is being introduced today. This legislation will ensure that the 
seasonal businesses in our country have the workers they need to 
support our economy and enable the economy to flourish.
  I would first like to thank Senators Mikulski and Gregg for bringing 
such a large, bipartisan group of Senators together to create this 
legislative solution. Last year, the United States Citizenship and 
Immigration Services announced in March that they had received enough 
petitions to meet the cap on H-2B visas. As a result, they stopped 
accepting petitions for these temporary work visas halfway through the 
Federal fiscal year. This announcement was a shock to many businesses 
around the country that depend on foreign workers to fill their 
temporary and seasonal positions.
  Tourism is the largest sector of Vermont's economy and as a result, 
many Vermont businesses hire seasonal staff during their winter, summer 
or fall foliage seasons. Last year, I heard from many Vermont 
businesses that they were unable to employ foreign workers for their 
summer and fall seasons because the cap had been reached. Not only was 
this unexpected, but many of the employees were people who had been 
returning to the same employer year after year. These employers lost 
essential staff and, in many cases, well trained, experienced staff.
  Many employers told me it is extremely difficult to find Americans to 
fill these seasonal positions, especially in areas of Vermont where the 
unemployment rate is less than 2 percent. One Vermont resort only 
survived Vermont's fall foliage season because of the dedication of 
their permanent employees. Instead of 35 housekeeping staff, they made 
do with 8. Staff was asked to work 12 to 14 hours per day, 6 or 7 days 
per week. At this particular resort, the vice president, general 
manager, administrative and technology managers, and marketing manager 
all cleaned rooms. While they are proud of the work of their staff, 
they believe their business and their personnel will suffer if they are 
not able to employ seasonal foreign workers again this year. They 
foresee a devastating effect on the family business they have owned and 
operated for the past 40 years if they are not able to bring in foreign 
workers soon.
  I have also heard from Vermont businesses that had to lay off or not 
hire American workers because they could not find enough employees to 
fill their crews. Without the workers to complete projects, they could 
not hire or maintain their year-round staff. They also could not bid on 
projects and many had to scale back their operations. In these 
instances, the lack of seasonal workers had a direct effect on our 
economy and the employment of American workers.
  As many may know, I believe strongly that American workers must be

[[Page S1283]]

given the opportunity to fill jobs and strengthen our nation's 
workforce. However, the companies I have referred to today, and all of 
the others that have contacted me, did their utmost to find Americans 
for the positions available. Efforts to find workers included: working 
closely with the State of Vermont's Employment and Training office; 
increasing wages and benefits; and implementing aggressive year-round 
recruiting.
  While many Vermont businesses were able to survive last year, thanks 
to that old Yankee ingenuity, I am not optimistic about this year. The 
cap on H-2B visas was reached in early January, barely a quarter of the 
way through the fiscal year. It is imperative we immediately address 
this problem in order to prevent further harm to this Nation's small 
businesses and the economy.
  Ms. COLLINS. Mr. President, the recent shortage of H-2B nonimmigrant 
visas for ernporary or seasonal non-agricultural foreign workers is a 
matter of great concern to many small businesses in my home state of 
Maine, particularly those in the hospitality sector that rely on these 
seasonal workers to supplement their local employees during the height 
of the tourism season.
  On January 4, a mere three months into fiscal year 2005, the U.S. 
Citizenship and Immigration Services, CIS, announced that it would 
immediately stop accepting applications for H-2B visas because the 
annual statutory cap of 66,000 visas had been met. In other words, many 
employers who require temporary workers in the spring, summer, or fall 
will be unable to hire such workers because all 66,000 H-2B visas 
already will have been issued within the first few months of the fiscal 
year. Once again, Maine's employers will be left out in the cold, 
disadvantaged by the simple fact of their later tourism season.
  Without these visas, employers will be unable to hire enough workers 
to keep their businesses running at normal levels. Last year, unable to 
locate enough American workers willing and able to take these jobs, and 
without temporary foreign workers to fill the gap, many business owners 
were forced to initiate stop-gap measures that were neither ideal nor 
sustainable in the long term. Many of these businesses fear that, this 
year, they will have to decrease their hours of operation during what 
is their busiest time of year. This would translate into lost jobs for 
American workers, lost income for American businesses, and lost tax 
revenue from those businesses. These losses will be significant, and 
they can be avoided.
  Today, I am pleased to join Senators Mikulski and Gregg, along with 
several other of my distinguished colleagues, in introducing the Save 
Our Small and Seasonal Businesses Act of 2005. Similar to legislation 
that I cosponsored last year, as well as legislation that I have 
introduced in the current Congress, this bill would exclude from the 
cap returning workers who were counted against the cap within the past 
3 years. This legislation also seeks to address the inequities in the 
current system by limiting the number of H-2B visas that can be issued 
in the first 6 months of the fiscal year to no more than 33,000 visas, 
or one half of the total number of visas available under the cap. By 
allocating visas equally between each half of the year, employers 
across the country, operating both in the winter and summer seasons, 
will have a fair and equal Opportunity to hire these much-needed 
workers.
  In addition, this legislation includes important new anti-fraud 
provisions that will strengthen our ability to detect, prevent, and 
deter, fraud by those who would seek to abuse the H-2B program. These 
include sanctions for employers who are found to have misrepresented II 
If facts on an H-2B petition, and the creation of a Fraud Prevention 
and Detection Fee of $150 for each H-2B petition. Similar to anti-fraud 
fees charged in other visa categories, funds raised from this fee will 
be placed in an account with the U.S. Treasury and made available to 
the agencies involved in processing H-2B visas--CIS, the Department of 
Labor, and the Department of State--to educate and train employees to 
recognize and protect against fraud in the visa applicant process.

  I believe that this anti-fraud fee serves a worthy goal, and that the 
government agencies should have the resources they need to ensure the 
integrity of the H-2B visa application process. However, I am concerned 
about the impact that a fee of this size, in addition to the filing 
fees that employers already pay, may have on many smaller businesses. I 
intend to examine this issue further in order to ensure that smaller 
businesses are not unfairly impacted by this provision.
  We must act quickly on this legislation, or we will be too late to 
help thousands of American businesses that need our help now. We cannot 
be content to say: ``It's too late for this year; maybe next year.'' It 
is true that comprehensive, long-term solutions may be necessary, but 
we have immediate needs as well. This problem demands immediate 
solutions.
  In my home state of Maine, the economic impact of this visa shortage 
will be harmful and widespread. When people think of Maine, what often 
comes to mind is its rugged coastline, picturesque towns and villages, 
and its abundant lakes and forests. Not surprisingly, tourism is the 
state's largest industry. Temporary and seasonal workers play an 
important role in this very important industry.
  Unfortunately, there are not enough American workers willing and able 
to fill the thousands of jobs necessary to provide the level of service 
that Maine's visitors have come to expect. Over the years, seasonal 
workers have filled this gap, becoming an integral part of Maine's 
tourism and hospitality industry. In Fiscal Year 2003, the last time 
Maine's employers were able to fully utilize the H-2B program, Maine 
employed more than 3,000 seasonal workers. The majority of these 
individuals worked in the State's resorts, inns, hotels, and 
restaurants. Many are people who have returned to the same employer 
summer after summer.
  Let me emphasize that employers are not permitted to hire these 
foreign workers unless they can prove that they have tried, and failed, 
to locate available and qualified American workers through advertising 
and other means. As a safeguard, current regulations require the U.S. 
Department of Labor to certify that such efforts have occurred before 
CIS will process the visa applications. In Maine, as in other States, 
our state Department of Labor takes the lead in ensuring that employers 
have taken sufficient steps to try to find local workers to fill the 
positions. Unless and until more H-2B visas are made available, many 
seasonal jobs will remain unfilled and American businesses will suffer.
  A similar situation faces Maine's forest products industry, which 
contributes approximately $5.6 billion annually to Maine's economy. In 
2003, more than 600 temporary workers--mostly from Canada--were 
employed as forestry workers in Maine. Many work in remote areas of the 
state where there are not enough Americans able to take these jobs. By 
some estimates, these foreign workers account for as much as 30-40 
percent of the wood fiber that supplies paper and saw mills throughout 
Maine and the Northeast. This number represents roughly 4.8 million 
tons of wood annually. With an already significant shortage in the wood 
supply, the loss of these temporary workers poses a serious threat to 
the industry and to Maine's economy. With fewer workers available to 
bring wood out of the forest and into mills, supplies will dwindle, 
prices will continue to rise, and mills may be forced to curtail 
production, or even temporarily discontinue operations. If this 
happens, it is American workers that may lose their jobs.
  The effects of the H-2B visa shortage are not limited to the tourism 
and forest products industries, however. It will also be felt by 
fisheries and lobstermen, junior league hockey and minor league 
baseball teams. It win affect small businesses and large, visitors and 
locals, young and old, from Maine to Maryland, to Wyoming and Alaska.
  Mr. President, the shortage of nonimmigrant temporary or seasonal 
worker visas is a problem that must be addressed, and soon. I believe 
that this legislation offers a workable short-term solution, and I urge 
us to move forward. We must resist the tendency to let this problem, 
and the people who are affected by it, become entangled in the larger 
debate about our Nation's

[[Page S1284]]

immigration policies. This is not about the number of immigrants we 
should allow to come to the United States each year, or what to do with 
those who violate our immigration laws. It is about temporary workers 
who, for the most part, respect our laws, go home at the end of their 
authorized stay, and in many cases, return again next year to provide 
services that benefit our Nation's economy. It is about American 
businesses that rely on these workers to take jobs that many Americans 
do not want. It is about the economic impact that will be felt across 
the Nation if these businesses are unable to hire temporary workers. We 
need to solve this problem now, before it is too late and our economy 
is harmed and jobs lost.
   Mr. SARBANES. Mr. President, I rise in support of the Save Our Small 
and Seasonal Businesses Act being introduced by Senator Mikulski today. 
This legislation offers a measured approach to provide needed relief to 
the many small businesses that have been struggling to find enough 
employees to operate during seasonal spikes in workload. Small 
businesses that are seasonal often need a large number of employees for 
a short portion of the year, but cannot afford to retain the same 
number of people as full-time, year-round employees. They instead must 
rely on temporary workers to fill the gap in their high season. In my 
home State of Maryland, for example, our seafood processors are busy in 
the summer and early fall, but have very little work in the winter. To 
accommodate this changing need, they hire college students and local 
residents as extra workers in the summer. But even with those workers 
they often find themselves short-staffed. So they turn to temporary 
employees who are willing to leave their home countries for a few 
months to come to the U.S. and work.
  Specifically, the bill being introduced today will allow anyone who 
has had an H-2B visa for one of the last 3 years to return this summer 
or next if an employer petitions for them to do so. Importantly, 
employers still must demonstrate that they have tried and failed to 
find available, qualified U.S. citizens to fill these jobs before they 
file an H-2B visa application. In addition, the bill would ensure that 
our summer employers are not disadvantaged by allowing no more than 
half of the 66,000 visas to be allocated in the first half of the year. 
Finally, the bill imposes antifraud fees on employers who willfully 
misrepresent any statement on their H-2B petition and requires the 
Department of Homeland Security to file reports on the demographics of 
those utilizing the H-2B program.
  Any changes to our immigration laws must balance the interests of 
U.S. citizens and our economy while providing a fair, legal framework 
for those seeking to come to our Nation from other countries. For 
example, our current immigration laws already contain several general 
reasons an alien seeking admission into the United States may be denied 
entry: security and terrorist concerns, health-related grounds, 
criminal history, public charge, i.e., indigence, seeking to work 
without proper labor certification, illegal entry and/or immigration 
law violations, lack of proper documents, ineligibility for 
citizenship, and previous removal. Ensuring the safety of our country 
requires preserving these categories.
  This legislation would leave this existing framework intact. It 
simply provides a fair and equitable means of distributing a very 
scarce number of visas so that all employers who require extra 
assistance during one season of the year may obtain that assistance. We 
must resist the temptation to let the H-2B situation and the small 
businesses affected by it become entangled in the larger debate over 
immigration reform. Workers who use H-2B visas come to the U.S. for a 
temporary period of time and are required to leave when that time 
period has run. These workers respect our laws, work hard, provide 
services that benefit our economy, and then return to their families at 
the end of the season. For their sake and that of the small, seasonal 
businesses that rely on them, we need to resolve this H-2B crisis soon.
  Without this fix, our seafood processors cannot operate at full 
capacity. That becomes a problem for the rest of the seafood industry, 
including our watermen, who will be forced to curtail their fishing 
because of an insufficient number of locations to process their 
catches. In the end, the people who suffer are not the seafood 
processors or the temporary workers but the watermen who cannot feed 
their families. This bill provides the assistance necessary to keep our 
watermen, seafood processors, and a number of other industries such as 
landscapers, pool operators, and summer camps working at full capacity 
this summer. I urge my colleagues to support its passage.
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