[Congressional Record Volume 152, Number 64 (Monday, May 22, 2006)]
[Senate]
[Pages S4862-S4880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006--Continued
The PRESIDING OFFICER (Mr. Chambliss.) The Senator from New Mexico is
recognized.
Mr. BINGAMAN. Mr. President, I want to speak briefly this afternoon
about two amendments that I intend to offer, and I hope can be
favorably considered by the Senate before this bill is completed. The
first will just take a moment. It relates to forestry workers.
This is amendment No. 4055. It would make H-2B guest workers who are
invited here to work in our forestry sector eligible for limited legal
aid. I believe this amendment should be noncontroversial. Under current
law, agricultural guest workers are eligible for legal aid with respect
to employment rights provided for in their H-2A contract. This
amendment would provide H-2B forestry workers with the same eligibility
for legal aid. We have had hearings in our Energy Committee on the
issue. We had a recent hearing where we heard that making H-2B forestry
workers eligible for legal aid is the single most effective thing
Congress could do to address the problem of exploitation of forestry
workers.
These guest workers have been asked to come to the United States
because of a labor shortage that was certified by our Government. They
are here legally. They pay U.S. taxes. Currently, the law prohibits
legal-services-funded organizations from providing them with any legal
aid to enforce their rights under their guest worker contract. The
amendment would correct this issue, and I hope that this amendment can
be adopted when it is appropriate to take action on it.
Mr. President, I also want to talk about another amendment which goes
to the issue of the number of employment-based immigrant visas admitted
each year--the number of employment-based immigrants that we admit each
year under the current version of this immigration bill as it stands in
the Senate today. Let me first describe the big picture as I see it, as
far as people becoming legal permanent residents under our laws.
First, let me preface this entire discussion by saying that none of
what I am talking about relates to the people who are here on an
undocumented basis today. There are other provisions of the law that
apply to them and that give them rights under this proposed legislation
to adjust their status and become legal permanent residents at some
stage down the road. So that is separate. I am not in any way talking
about that. I know that has been a subject of great controversy in the
Senate and in the Congress in general, but that is not the purpose of
my proposed amendment.
When you talk about people who are not here illegally today, there
are basically two major ways that a person can become a legal permanent
resident under our immigration laws. The two ways are through the
family-based visa program or through the employment-based visa program.
This chart shows the numbers that have been admitted into the country
up until the end of 2004 through the family-based and employment-based
programs combined, under both of those. You can see that those two
together--it comes out to somewhere around 800,000. That is a total
annual figure I am talking about for people coming and getting legal
permanent residency through both of those major avenues.
Now, this legislation we are talking about would, according to the
Congressional Research Service, substantially increase those numbers.
You can see that their projection--and this is an estimate because, in
fact, we are eliminating some caps that have been in the law
previously, and I will discuss that in a minute. But these estimates
from the Congressional Research Service are that we will get closer to
2 million legal permanent residents that we are accepting each year
under this legislation. So that is the overall picture.
The amendment I am talking about does not try to deal with this
entire picture. It just looks at the employment-based legal permanent
resident visas.
Let me go to a different chart in order to describe the concern I
have. Current law says there is a cap of 140,000 persons, or 140,000
visas, that can be issued under the employment-based LPR categories of
our laws. That has been the case now for some time--140,000 per year.
This includes family. These are people who come here and seek legal
permanent status in order to take work. But it also includes their
families. Each member of the family, of course, uses a visa as well. So
the total number of employees under this system, and family, spouse,
and children, does not exceed 140,000. That is what the law currently
provides.
Now, when Senators McCain and Kennedy--this is my understanding of
the history, and I am sorry that neither Senators McCain or Kennedy are
here so they could correct me in case I misstated anything, but my
understanding is that they concluded that we needed to reform the law,
and part of the reform that we should adopt was to clear out the
backlog and make more room for additional immigration under this
employment-based LPR system. I agree with that. Clearly, that is one of
the purposes of this legislation and one of the effects of this
legislation.
They set out to do this in several different ways. Let me mention the
three main ways that they set out to do it. First of all, they said
let's clear out the backlog. By that, it is meant in the legislation
that any visa that was available to be issued in the last 5 years that
was not issued because the immigration service could not get the
processing done--that any of those visas would be once again made
available. And the estimate we have from the Congressional Research
Service is that there are about 140,000 of those.
So we are going back for the last 5 years and saying: OK, are there
visas that should have been or could have been issued? Let's bring
those forward and issue them and make them available again. Clearly, I
support doing that.
They also said: OK, in order to help clear out the backlog, we need
to encourage some groups to come here and exempt them from any of this
cap. This idea that we only allow 140,000 people to come should not
apply to people we are particularly interested in bringing to this
country, for whatever reason. One idea is to allow students who come
here to be exempted from the cap so they can remain here and become
legal permanent residents--scientists, technicians, engineers, people
with careers in mathematics. We need those people to create a strong
economy. Let's allow them to come.
They said also let's eliminate some of these schedule A groups; that
is, people who have specialty occupations we
[[Page S4863]]
need to bring here. So let's take them out from under the cap. Again, I
have no problem with that approach.
The one other thing they said, which is a major change in the law--
this was the bill they introduced last May, the McCain-Kennedy
legislation--is that we should raise the cap, that we have outgrown
that. Let's raise it to 290,000, so the total number of people who are
being allowed to come each year--employees and their spouses and
children--will be 290,000, in addition to the ones permitted to come
because of our bringing these visas forward from previous years and in
addition to the people who come not subject to any cap at all.
That is how the McCain-Kennedy legislation was introduced. Frankly,
my own reaction was that it sounded like a fairly reasonable approach.
Then the Judiciary Committee decided to proceed with legislation, and
the Judiciary Committee began to mark up the chairman's bill--Senator
Specter's bill--and as I understand what occurred there, and in reading
the record of those hearings, the Specter bill agreed with the effort
to clear out the backlog that I have described, agreed with the effort
to exempt certain groups from the 290,000-person cap. It agreed to keep
the number 290,000, but they changed the definition of what the 290,000
applied to.
Under McCain-Kennedy, it had been a cap on the number of workers,
along with their accompanying family members. Under the Specter
legislation, it was defined as a cap on the workers themselves, and
there was to be no cap on the spouses and family members.
If you look at this chart, you can see the progression. Current law
is the first column. The second column is S. 1033, which takes it up to
290,000. Then the third column is the one that is the chairman's mark
that was marked up and reported by the Judiciary Committee, and that is
the one that keeps the 290,000 but says: OK, on top of that we are
going to allow spouses and family members.
On this chart, you see an estimated 638,000. The reason I put that in
is because the Congressional Research Service was asked how many
spouses and family members they expect to come along with these people?
They said, looking back at past history, they estimate perhaps at least
1.2 people per employee. So you would be talking about 638,000,
roughly, under that legislation. But that is an estimate. This is the
first time we have not had a cap. We have an estimate instead of a
cap. So the obvious question we have to deal with is whether that is
the right level.
As we all know, the legislation that came through the Judiciary
Committee was changed once it got to the floor, and we then began to
work on what is called the Hagel-Martinez legislation. That is the
legislation pending today. That is the legislation about which we are
having a great deal of discussion.
Let me recount what the Hagel-Martinez legislation does. That is the
fourth of these columns. The Hagel-Martinez legislation says that we
agree with the proposal to clear out the backlog, just as McCain-
Kennedy did. They are saying they agree with the proposal to exempt
certain categories from the cap. That was also in the McCain-Kennedy
proposal. And they agree with the Specter proposal that the definition
of who should be covered should not include spouses and family members.
But they also believed the 290,000 was too low a figure, and they
raised it to 450,000. What we have now is 450,000 workers permitted to
come and no limit on the number of spouses and family members who can
accompany them. That is the legislation pending before us. That
continues under the bill, as it is before us, for a 10-year period,
through 2016. After 2016, for the period from then on, it drops back to
290,000, plus their spouses and family members, rather than the
450,000.
Why did Hagel-Martinez insist upon going to this 450,000 instead of
290,000? That is the obvious question. They did it for a very logical
reason. They did it because they were providing that a certain group of
those who are currently in the country--that is, people who have been
here at least 2 years and fewer than 5 years--that group of individuals
would have to go through this same system, so they had to increase the
amount of that cap as they saw it.
What I am suggesting we ought to do first and what my amendment will
propose, once I have the opportunity to offer my amendment, is we
should put a cap on the total number of people we are allowing into the
country under this employment-based legal permanent residency visa
program.
We have always had a cap on the number of immigrants coming into this
country on an employment-based system. We have done that now for well
over half a century. I think we have done it for over a century. I
think it would be a fairly radical change for us to say we are giving
up on having any cap on this group and instead we are going to an open-
ended system, and we will work on estimates.
Part of the debate we have had in the Senate, frankly, is the result
of the fact that we don't have a hard cap for how many people will
actually be admitted each year. I believe that is not good public
policy. It is not fair to the Immigration Service, which has to plan
for the number of employees they will need and the number of
applications they will receive each year. We are much better off having
a cap.
I also believe we should make it clear that whatever cap we have on
this group excludes those aliens who are adjusting their status because
they have been here from 2 to 5 years. If they are in that category,
they should not be counted in the numbers we calculate.
My amendment would try to exclude that group and would basically
otherwise take the numbers that are estimated by the Congressional
Research Service and say: OK, let's go ahead and put a cap, and let's
make it a 650,000-person cap each year. That is slightly more than the
Congressional Research Service estimated would be required or would be
expected to apply. It is a substantial increase over current law, more
than four times, nearly five times the current level. It is
substantially more than twice what Senators McCain and Kennedy proposed
in their legislation.
I think, frankly, it would be a major liberalization of our laws. I
know there are those who will argue that we shouldn't have any cap at
all, but I think that is not a wise course. This legislation will be
improved if we can assure our constituents that we have a cap on the
number of people who are coming in under this employment-based system.
That is what the amendment will do.
I hope to be able to explain it further when we get closer to
actually offering the amendment. I am told we cannot offer an amendment
today. This would be a very useful change and improvement in the
pending legislation.
I hope my colleagues will take the time to look at this issue and
will educate themselves on what the effect of the current proposed
legislation would be and the reasons we should put some cap on that
number. I believe it would be a wise course to follow.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, I compliment the Senator from New Mexico.
He has approached this very contentious and very complicated issue in a
very thoughtful way, looking at realities and numbers. I appreciate his
observations today. His proposal, and an amendment he offered that was
adopted last week, changes the numbers. I am not going to stand here on
the floor as an advocate of the legislation and suggest we have gotten
it right, but we spent a great deal of time attempting to get it right,
recognizing the importance of the migrant labor force inside the
American economy and, at the same time, recognizing the wishes of the
American people to make it a transparent legal process with secured
borders. That is what they are asking of us. I hope, as we finalize
this legislation this week, that is the outcome of it before we send
the bill to the President for his signature.
I have come to the Chamber this afternoon to talk once again about an
issue that is before us. The Presiding Officer is the author of the
amendment. Again, it is one that, in part, is a bit technical. I
suggest this afternoon in my opposition to the amendment that it is
predicated on what I hope are appropriately the unforeseen consequences
of this amendment and the impact it would have on American agricultural
employment.
Last Thursday night, Senator Chambliss opened the debate on his
[[Page S4864]]
amendment, and I talked about its impact on the users of the H-2A
agricultural guest worker program. To get right to the bottom line, my
argument is that the Senate should keep the provision that is in the
bill now and deny Senator Chambliss the success of his amendment. Why?
A deal doesn't necessarily have to be a deal, but at the same time,
over the course of the last 4 years, in negotiating with agricultural
employees and agricultural employers, we attempted to bring some
rationale to a method of compensation under the H-2A program that
simply in most opinions was out of touch with reality. It was
escalating on an automatic basis every year, and it simply was not
fitting the need, especially when more and more in agriculture were
illegal and were not under that program.
Now a small minority actually, some 40,000-plus a year, are under the
H-2A program and identified with the wage set by that program. It is
possible--and we are not sure--but a million-plus are not and are
simply out there in the marketplace bidding for a salary that, in most
instances, is below the H-2A adverse wage that is proposed.
So what did we do? Recognizing that disparity, we reached back, with
the agreement of all of the parties involved, and said that one of the
pieces of getting this puzzle right was to freeze that wage in 2003 at
the 2002 level, and that is what is in the bill. So that pushes that
wage scale back substantially for a period of 3 years while we look at
what Senator Chambliss has attempted to do in his legislation in
developing a prevailing wage for American agricultural employers and
employees that fit into this guest worker category.
I don't know that we, with all of the different categories of wages,
can automatically put it all under one at this time. Of course, that is
what the Senator attempts to do. The agriculture section of S. 2611, as
I said, immediately drops that wage down, and then over a period of 3
years, we look at it and adjust as the program is adjusting because we
are not going to have everybody inside the program once it becomes law
for a period of several years as the program adjusts and as we work our
way through and people begin to qualify under the blue card system that
we proposed to become legal workers and have permanent visas for the
purpose of moving back and forth across the border as guest workers to
work in American agriculture.
What I have attempted to do and what I am attempting to understand is
what in the bill is now the best deal for American agriculture. That is
one reason I believe a vote on the Chambliss amendment is not a good
deal for American agriculture at this moment. But that is not the only
reason. Let me talk about the rest of agriculture, the million-plus who
will now be affected by the Chambliss amendment if it is to become law,
because I see that as the rest of the story, and the rest of the story
deals with the blue card and the blue card transitional program, the
earned status which is a part of the whole of this program. It isn't
just a matter of putting in a wage; it is a matter of how that wage
ultimately affects the transition into a blue card status.
We have done a pictorial chart tonight that I think better explains
what we are talking about.
We believe the blue card built within the agricultural jobs is that
transitional tool which allows American agriculture to cross the chasm,
if you will, and allow a reformed H-2A program, a guest worker program,
to come into being. It won't happen overnight, but it will happen under
the law, and it will happen with a wage scale that is pushed back as we
make sure we get it right. That is under the reform program.
The second part of the agricultural jobs is a one-time-only program,
right here, a blue card. It will last for a specific period of time
while we are transitioning the illegals here today into a legal status
so they can continue to work and move back and forth across the border
in a guest worker program.
The blue card program is a critical piece of the agricultural job
solution. It is an essential transition program. Let me repeat,
agriculture needs this blue card if we don't want to throw it
immediately into havoc because agriculture, whether we like it or not,
based on an H-2A law that didn't work at all well and a very
transparent border, has grown increasingly dependent on an illegal
workforce. There are no wage requirements for blue card workers in the
bill. It is only the 40,000-plus H-2A we shove back. They are paid
whatever the farmer is paying, whatever the current wage is in the
area, and other workers are gaining. And those wages would differ from
place to place and job to job, farm to farm.
What the Chambliss amendment does, however, is it says that blue card
workers must be paid a prevailing wage. It pushes the base up
substantially. The Chambliss amendment doesn't just deal with the wages
of the H-2A program, the 40-plus, it applies the same fix to every
farmer who employs a blue card transitional worker.
Now, why is that significant? Here is why: By definition, the
prevailing wage is neither the lowest nor the highest wage; it is just
about in the middle or between the two. It is the 51st percentile in
wages. So even if a farmer is paying a lower wage for a particular job,
if he hires a blue card worker, if the Chambliss amendment becomes law,
he is going to have to pay the blue card worker a higher wage than he
is currently paying today. And if the Chambliss amendment is adopted,
the lower 50th percentile of wages, that is the figure that becomes the
calculating base for the next year. While you freeze for 3 years and
let the wage scale work as it is, the Chambliss amendment begins to
ratchet the wages up, setting them at a 51st percentile level. I don't
think American agriculture has that one figured out yet.
What could ultimately happen is that we lose the value of the
transition of the blue card, especially when it comes to vegetable
crops and crops that can move very quickly out of this country that
aren't mechanized and are labor intensive. Already, we are beginning to
lose those farmers because the worker isn't there. If all of a sudden
that wage scale shoots up under the Chambliss bill, as I propose it
will, to a prevailing status, my guess is not only will you not have
the worker but you will not have the producer out there in the field
simply because they will not be able to afford to pay that wage in a
competitive way. More and more of our production, tragically enough, I
believe will go south of the border in some of these areas. Much of
that production today happens outside the United States.
So I think when we are talking about what sounds like a good idea, we
better put it in the context of what the bill is really about; that is,
the transitional time of 2 to 3 years of blue card workers who are in
the market today working at a variety of wages, depending upon the
particular job, the particular type of agriculture, and all of a sudden
establishing a whole new wage base substantially above where they are
being paid but, as the Senator from Georgia would argue, below H-2A.
But remember, once again, only about 45,000 workers are in H-2A, and
there are well over a million who are all of a sudden going to be
affected by the blue card status and by the Chambliss amendment. So it
is tremendously important that we bring this into context.
Now, that is not going to be just a couple of workers, as I said.
That is nearly 70 percent of the current agricultural workforce we
believe to be undocumented. Not all of those workers are going to
qualify for the blue card program, but a lot of them will. Our blue
card program envisions that it could go as high as, over a 3-year
period, 1.5 million, and if I am not mistaken, those higher wages won't
be limited to the blue card worker.
But what the Senator from Georgia is doing is setting a new, higher
floor for all agricultural employment. Somehow, you are talking about
inflating the wages of a large percentage of the American agricultural
workforce. I am not against higher salaries. I am for a fair salary.
What I am concerned about in particular is labor-intense areas, and
those crops will simply cease to exist and they will go south of the
border, to Chile or somewhere else. In areas of agriculture that are
highly mechanized, there will be limited to no effect. And it is that
which I believe we have to put into context.
So what is the result? The result is that employers, in my opinion,
won't be able to afford blue card workers. Is
[[Page S4865]]
that the intent of the Senator from Georgia? I don't think so, but I
believe it is the unintended consequence we are talking about and
something I think my colleagues need to understand.
Part of that was the discussion over the last 4 years. This is
something which didn't just come up yesterday. There were 4 years of
negotiation between the employer and the employees as to how to get an
H-2A wage right. We had the adverse wage for a lot of reasons, such as
because of where agriculture was located and because housing wasn't
available. There were a lot of things that were brought into that
discussion. We know our country has changed since the creation of the
first H-2A law. And while there are still other benefits tied to the
wage, that is why we could effectively negotiate rolling that wage back
and allowing American agriculture and the employers in American
agriculture to effectively look at what we were doing and strike the
kind of balanced margin that is necessary.
What happens? What happens if the blue card is removed? I am going to
argue tonight that the Chambliss amendment has the effect of removing
the blue card substantially because it inflates that lower wage base
significantly. What happens if it is removed? The bridge that is the
chasm we cross as we transition with American agriculture into a
legal--a legal--guest worker program goes away. That is what I am
worried about, dramatically worried about, and that is why I am urging
my colleagues to vote against the Chambliss amendment because I think
if that goes away, there is no transition. Within a very short time,
even under tight labor conditions today, because our borders are
getting tighter and because of shifts in the workforce, this drives
that workforce even further out of the ability to be hired by much of
American agriculture. I think it is tremendously important that we look
at all of that and understand it.
Here is something else that is ironic. The Chambliss amendment
creates a federally mandated wage base for American agriculture. Some
will argue that we have done it in a couple of other areas, but most of
us will say the market ought to work. It was only in the unique status
of H-2A that we had a different kind of wage base. I will argue today,
and I think appropriately so, that we are setting an entirely new
standard for 70 percent of the American workforce. Instead of allowing
us to make sure that it fits right in the program, looks at the
diversity, looks at the kind of representation that is reflected all
over the United States when it relates to where you are working, how
you are working, the type of work you are doing--is it piecework, are
you doing it by the amount produced instead of by the hour of work--all
of that kind of thing works today, and I am not so sure it is not
effectively distorted by the proposal which is being offered by the
Senator from Georgia.
That is why I hope my colleagues would stay with us and stay with
what is in the bill and in the provision that we call AgJOBS, that
rolls back--on 40,000-plus workers qualified under the H-2A program,
rolls their wage back to the 2002 level, freezes it for 3 years, while
the Department of Labor, working with American agriculture, can get
this right because I am convinced that the unintended consequences of
now mandating a Federal floor, if you will, to American agriculture is
not where we want to go.
If we want American agriculture to transition across this chasm, to
get its workforce legalized, as it wants and as the Senator from
Georgia and I want, then we have to make sure the transition which
allows that to happen effectively uses this tool, the blue card, which
will allow that kind of transition to go forward in a way that causes
us to adjust.
We can't take the blue card off the table. I will argue that in the
end, if the Chambliss amendment passes, we have taken that worker out
of the workforce. That is not going to be good for American
agriculture. That is not going to be good for the crops that are
rotting in the fields today if, by that action, we now have a Federally
mandated prevailing wage which brings that wage rate up across the
board in a way that disallows American agriculture from being
competitive.
I believe those are the critical points involved in the difference
between where we are and where we know we need to get. We need to get
there in a way that allows the worker to be treated fairly, the
producer to be treated fairly, and most importantly that we have an
available, legal workforce to meet the needs of American production
agriculture. That workforce is at risk today, and with the passage of
the Chambliss amendment, significantly changing the base rate, it will
be at even greater risk as production agriculture looks where it needs
to farm to be competitive in a world market. It may not be on the soil
of this great country, and that would be the wrong thing for us, the
wrong thing for our country, and certainly for our consumers. So I hope
my colleagues will look at that and consider it as we deal with this
issue.
I yield the floor.
The PRESIDING OFFICER (Mr. Martinez). The Senator from Georgia is
recognized.
Mr. HARKIN. Parliamentary inquiry, Mr. President.
Mr. CHAMBLISS. I am happy to yield to the Senator from Iowa.
Mr. HARKIN. Mr. President, my inquiry is, is the Senate under a
unanimous consent agreement that it would go from one side to the other
in this debate or is it just jump ball? It is just whoever gets
recognized by the Chair to speak?
The PRESIDING OFFICER. That is correct.
Mr. HARKIN. I thank the Presiding Officer.
Mr. CHAMBLISS. Mr. President, I appreciate very much the arguments
made by the Senator from Idaho, but there are a couple of very obvious
faults in the argument relative to the wages farmers should pay to the
folks who work for them.
First of all, the adverse effect wage rate, which is in the current
law and is in the current bill, and is supported by Senator Craig, is
the only provision in the labor laws of this land that uses the adverse
effect wage rate, and we both recognize that this is a flawed system.
By his own admission, the Senator from Idaho recognized it, and I
recognize it. It is a flawed system because it was never intended to be
used by the Department of Labor as a means by which wages would be set.
So my response to that is, let's take what all other labor laws utilize
in determining wages, and that is a prevailing wage.
You come up with a method whereby the skills that are attached to the
individual laborer, the location where that laborer is going to work,
and the type of job for which that person is to be hired determine how
much that person is going to be paid. What happens now is there is
simply a rollback in the current bill of the adverse effect wage rate
to the year 2002. That is 4 years ago. And by rolling it back 4 years,
there is an admission that there is a significant problem there.
I don't want to misquote my friend from Idaho, but the other night,
Thursday night, when we were arguing about this on the floor--I might
add, in a way that moves both of us to the same conclusion, which is to
make sure we provide that quality workforce--the Senator from Idaho
said that at the end of the day, what he wants to get is a prevailing
wage. I am going to talk about that again in a minute. But if we want
to get to a prevailing wage, let's get to it now.
Mr. CRAIG. Would the Senator yield?
Mr. CHAMBLISS. I am happy to yield.
Mr. CRAIG. Mr. President, I don't think he and I disagree. My concern
is you are affecting 1.5 million workers by your immediate action, and
I am affecting 40,000-plus in rolling them back. And we are giving a
period of transition of 3 years to get right what you have proposed. My
concern is that in getting right what you proposed, you have an
immediate effect on the next phase of agricultural jobs, and that is
the transitional period of time in qualifying the blue card worker to
become a permanent worker or a permanent legal worker, and that
immediately inflates the wage base. And then immediately upon inflating
it once, you inflate it again the next year and the next year because
you have lifted the base, ratcheted it up by each year's calculation. I
think that is a very legitimate concern. So I ask you, is that not the
impact of what you do? I am affecting 40,000-plus; you are affecting
1.5 million.
[[Page S4866]]
Mr. CHAMBLISS. I reclaim my time, Mr. President.
Here is the deal. The deal today is that a farmer in America,
wherever he may be, whether he is in Idaho or Georgia, who goes out and
hires workers to come here legally, pays the adverse effect wage rate.
In my State, that happens to be about $8.37 an hour right now. In
addition to that, they pay for their transportation, they pay for all
their consular fees, they provide housing, so the $8.37 an hour is a
little bit misleading. It is actually more in benefits than that. The
neighbor next door to that farmer, which is that category of blue card
worker that you address in your comments, he is paying probably $5.15
an hour to that individual. So the farmer who is trying to be legal is
paying a fair wage rate, or paying a wage rate with benefits that is
significantly different than the gentleman that he is competing with on
the farm next door.
What the proposed legislation does is continue that difference. It
takes those individuals who are here illegally today and says we are
not going to guarantee them the adverse effect wage rate or the
prevailing wage rate. We are going to continue to treat them as a
second class citizen, and we are going to allow farmers who use them to
have an advantage over farmers who use legal workers.
All my amendment says is that everybody ought to use legal workers.
We ought to give farmers across America the opportunity to choose from
a pool of workers to plant, tend, and harvest their crops. During the
whole course of the time that they are here in a legal manner, working
under that contract, before they have to go home, we want to make sure
they are paid a fair wage. That wage is determined as the prevailing
wage rate by the Department of Labor, and it is based, again, on the
skill of that worker, on the job for which that worker is hired, and on
the wages that are prevailing in the area in which that worker is
hired. That is exactly what my amendment does.
We don't eliminate the blue card. You still have the blue card. The
folks who hire blue card workers under the current bill are going to
have an advantage over those employers, those farmers who have been
legal and utilized H-2A and who want to utilize H-2A in the future.
It is a very skewed way of arriving at a wage rate that we both agree
upon. The question is, How do you get from today, from May 22, 2006, to
a prevailing wage rate?
I say let's do it now. What the underlying bill says is let's take
35,000 or 40,000 workers who are here currently under H-2A, and let's
allow them get to a prevailing wage rate down the road, within some
certain period of time. But let's take this other 1.5 million and let's
keep them depressed. Let's let farmers who hire that blue card worker
continue. And it is not going to go away. You better believe they will
be here working because they are going to pay them a lower wage rate.
It is not fair.
My amendment is all about fairness, and it requires farmers to pay a
reasonable wage rate. They don't mind paying a reasonable wage rate to
get an honest day's work out of an employee.
This amendment is not about numbers either. We had a lot of
discussion the other night about numbers which, frankly, were developed
by the American Farm Bureau. The American Farm Bureau has access to
every farm in America. They have the ability to come up with what are
the wage rates that are being paid by every farmer in America. That is
how we arrived at our numbers. It is not about how Senator Craig
arrived at his numbers for the adverse effect wage rate. That is not an
argument on our part. This amendment is simply about fairness.
The AgJOBS portion of the underlying bill is simply not fair. It is
not fair to the employers across the United States, and it is not fair
to those who work on our farms--whether they are illegal, whether they
are in a temporary worker program, a legal permanent resident, or a
U.S. citizen.
Why? Because the underlying bill provides wage guarantees only to
those foreign workers who come in under the temporary H-2A program. At
present, those workers do number in--I don't know whether it is 35,000
to 40,000 or 45,000 to 50,000 this year, but that is the range it will
be. The 1.5 million workers who will be legalized under the AgJOBS blue
card program do not receive a wage guarantee. This is a tremendous flaw
in the AgJOBS bill, in my opinion. If these blue card workers are
willing to work for $5.15 an hour, then that is all their employers
have to pay them. Those folks who are here legally are going to be
required to be paid the adverse effect wage rate, which is
significantly above that minimum wage rate of $5.15.
What is ironic to me is that these workers, whether here on a blue
card or on a H-2A visa, are essentially the same. Most come from the
same country, Mexico; and many from the same villages. Most are here
because of the poverty that exists in their home countries. All are
here to earn money to support their families and improve the quality of
their lives.
Many will work in the same occupations. Shouldn't they be treated the
same? I believe they should. Under the AgJOBS bill, they are not. The
distinguished Senator from Idaho might argue that they are different
and should be treated differently. He does, in a way, say that because
those who are legalized with the blue card program will be here
permanently. However, legalized blue card workers do not have permanent
status. The blue card program simply allows these legal workers to stay
here, employed in agriculture, until they meet all the requirements for
legal permanent status.
No one can calculate how many of these transitional workers will ever
become legal permanent residents. Until they achieve legal permanent
resident status they should be considered temporary foreign workers and
treated similarly.
From the employer's side, no difference exists between employers who
utilize the H-2A program and those who use the blue card program. This
applies across the board to all commodities produced and livestock
raised production methods and for their need of dependable workers.
There is a major difference though. H-2A workers, many of whom have
been coming to the same employers for years in this country legally--
the vast majority did not bring their family members, and they returned
home at the end of their periods of employment, just as the law
requires.
These H-2A workers were not exploited while they were here because
the employers played by the rules. Playing by the rules was expensive.
The adverse effect wage rate is expensive. But those employers did it
to their competitive disadvantage with a neighbor who employed illegals
at a significantly lower rate, who did not pay the transportation costs
of those workers, and did not provide those workers with housing.
On the other hand, illegal workers who will benefit from the blue
card program broke our laws when they came here, even though they came
here for the same reasons as the H-2A worker. The employers who hired
them, perhaps some out of absolute necessity--and I understand that--
but, by doing that, they also broke our laws. Regardless of the
circumstances under which those illegal workers are employed in
agriculture now, I would be willing to bet that many were exploited,
underpaid, and indentured along the way.
That is why I do not understand why the underlying bill fails to
protect the illegal workers, who adjust their status, and guarantee
them a fair wage.
I also don't understand why the AgJOBS bill fails to protect U.S.
workers who do farm work by neglecting to require employers who use
foreign labor, whether they access via the H-2A program or the blue
card program, to pay all workers in that occupation a prevailing wage.
Mr. CRAIG. Will the Senator yield on that point?
Mr. CHAMBLISS. I will be happy to.
Mr. CRAIG. Inside the AgJOBS Act there is a U.S. labor pool
established. They would pay the going wage. They have to make sure that
pool is exhausted so U.S. citizen agricultural workers are protected.
You go there first before you go to hire a blue card worker or a H-2A-
qualified worker.
I hope the Senator understands that they are protected in that sense,
as it relates to making sure that they are the first in line, if you
will, for a job that is available if they would choose to work in that
field at the wage that exists at that point.
[[Page S4867]]
Mr. CHAMBLISS. I guess the question is, though: How many U.S. workers
are out there who do take advantage of that now, or would in the
future? I think you and I both know the answer. It is minimal at best.
Reclaiming my time--I am about to run out of time.
Mr. CRAIG. OK.
Mr. CHAMBLISS. We are going to have our time split at 5:15.
Agricultural employers who utilize blue card workers must only pay the
blue card workers the minimum wage and are not required to pay U.S.
workers any more than the minimum wage. I think we can agree on that.
The H-2A program requires that employers who utilize H-2A pay all
workers in the same occupations in which they employ H-2A workers the
same wage guaranteed to every other H-2A worker.
Throughout this immigration debate we have heard that widespread use
of foreign workers will depress wages and that employers will reject
U.S. workers in favor of foreign workers who are willing to work for
less. In fact, the Senate passed by a voice vote an amendment that was
put forward by the distinguished Senator from Illinois, Mr. Obama,
addressing this very issue.
Rather than trying to make the same argument that Senator Obama made,
I simply want to quote him because it was on the same issue of
prevailing wage for another program, the H-2C program. Here is what he
said. It was a very good explanation. Senator Obama said that his
amendment essentially says:
. . . the prevailing wage provisions in the underlying bill
should be tightened to ensure that they apply to all workers
and not just some workers. The way the underlying bill is
currently structured, essentially those workers who fall
outside of Davis-Bacon projects or collective bargaining
agreements or other provisions are not going to be covered.
That could be 25 million workers or so which could be subject
to competition from guest workers, even though they are
prepared to take the jobs that the employers are offering, if
they were offered at a prevailing wage. My hope would be that
we can work out whatever disagreements there are on the other
side. This is a mechanism to ensure that the guest worker
program is not used to undercut American workers and to put
downward pressure on the wages of American workers.
That is exactly what I am saying because, if we have a prevailing
wage, American workers are going to be more inclined to take those jobs
rather than blue card workers coming in and being willing to take $5.15
an hour. That is exactly what is going to happen if we set the
prevailing wage, which is where it ought to be, rather than utilizing
your blue card program, which is going to wind up in millions, or
hundreds of thousands of agricultural workers being hired at minimum
wage.
Let me close by saying, here is the reason that the adverse effect
wage rate is so skewed. This is the chart that shows which States are
used in calculating the adverse effect wage rate. In my case we use the
southeast region: Alabama, Georgia, South Carolina. A farm worker job,
or a worker at the State farmers market in Atlanta, GA, is compared to
the same agricultural worker at the farmers market in Thomasville, GA.
They are 225 miles apart. One is a very urban area, Atlanta, GA. The
other is a very rural area, Thomasville, GA. It is pretty easy to see
why the Senator from Idaho says this is a skewed way to calculate
wages. With that we agree.
The prevailing wage rate method of calculating wages says individuals
who work at the farmers market in Atlanta will be paid a wage
comparable to other farm workers in the Atlanta area. That wage earner
in Thomasville, GA, will receive a wage that is comparable to
agricultural workers who are paid in the Thomasville, GA, region.
I am prepared to yield back, assuming that we have approached the
hour where we are going to divide these last 30 minutes?
The PRESIDING OFFICER. Under the previous order, the time until 5:30
shall be equally divided between the Senator from Georgia and the
Senator from Massachusetts or his designee.
Who yields time?
Mrs. FEINSTEIN. Mr. President, I have had an opportunity to listen to
the discussion between Senator Craig and Senator Chambliss on this
provision of AgJOBS which we put in as part of the blue card. I
congratulate Senator Craig on one of the most colorful charts that we
have seen.
The labor provision of this bill is a compromise that was negotiated.
I think it makes sense to leave it that way. It is left that way for 3
years. This has been the subject of long negotiations. After many
attempts to try to find the right balance, Senators Kennedy and Craig
struck an agreement that was supported by both growers and farm workers
across this Nation. That is the language in this bill.
Under AgJOBS, H-2A workers are paid the greater of the prevailing
rate or the adverse effect wage rate. As Senator Craig has said, the
standard is frozen at 2003, and growers will be required to pay the
prevailing wage, or what the adverse wage rate was over 3 years ago.
The compromise states that this will be the wage rate just for the next
3 years. And during that time, the GAO and a commission of agricultural
and labor experts will perform two studies examining H-2A wage rates
and making recommendations to Congress. If at the end of the 3 years
Congress fails to enact a new adverse effect wage rate, the adverse
effect wage rate would be adjusted by the cost of living.
While changing AgJOBS isn't, alone, a disqualification, I think we
have to be very careful before we upset what has been a very carefully
crafted compromise that is supported by a broad coalition of Members
from all sides of the debate.
If I might, I would like to ask Senator Craig a question. Since he
was the one who negotiated this, is it not true that this is a broadly
agreed upon solution for both farm workers as well as growers?
Mr. CRAIG. I believe it is fair and balanced. The reason it is is
because we pushed a wage scale that is already there back 3 years. We
do it this time to get right what the Senator from Georgia has
proposed. He has shown the disparity that already exists out there--and
it exists in all formulations when it relates to agriculture and
agricultural jobs. We have never focused on agriculture except in the
H-2A area. We believe it did get out of line, and that is why it is
shoved back. Then we proceed, just as the Senator mentioned, in a
methodical way to examine the country and get the wage scale rate
right.
Mrs. FEINSTEIN. Is it not true that when I introduced the blue card
program in the Judiciary Committee I just took that part of the H-2A
program which the Senator and Senator Kennedy had put together in the
AgJOBS bill?
Mr. CRAIG. That is correct.
Mrs. FEINSTEIN. This has been a longstanding compromise that has been
out there, which is a negotiated compromise.
If I might ask one other question, in the negotiations that the
Senator had on AgJOBS, how long did it take to come up with this
negotiated compromise?
Mr. CRAIG. Frankly, the adverse wage issue was one of the more
contentious, for a variety of reasons--first of all, because producers
saw it as being complicated with a lot of requirements other than just
a wage, and obviously employment saw it as an advantage but limited. As
a result, we were able to agree to shove it back.
As I say, that rarely happens in American history, to actually by law
push the wage scale back but to do so with the understanding that we
would get equity and fairness through the approach that the Senator has
outlined. That was the approach we used. A coalition of well over 500,
including agriculture, a lot of agricultural producers.
Mrs. FEINSTEIN. How long has this agreement been in place?
Mr. CRAIG. About 3 years--2\1/2\ years, actually, as we formulated
it.
Mrs. FEINSTEIN. I thank the Senator. My time has expired.
I urge the Senate to vote no on the Chambliss amendment.
The PRESIDING OFFICER. Who yields time?
Mr. CHAMBLISS. Mr. President, I yield myself such time as I may
consume.
The Senator from California was not involved in those negotiations,
and I chair the Agriculture Committee. I do not know how to respond to
that other than by saying that certain segments of agriculture were
involved in the negotiations, I assume. My dear friend from
Massachusetts was involved, and I daresay that I have more farmers in
[[Page S4868]]
my home county than we have in the vast majority of Massachusetts.
My point is not that these discussions did not take place over a long
period of time between farmers--I don't know who they were. But I can
tell you this: The American Farm Bureau has looked at the AgJOBS
provision. They have looked at my amendment. They have looked at the
bill that I submitted which was somewhat contrary to AgJOBS. The
American Farm Bureau--which, as I said earlier, has access to virtually
every farm in America, particularly from the standpoint of the
calculation of wages--has concluded that my amendment is fair and
reasonable. And the American Farm Bureau is recommending a ``yes'' vote
on the Chambliss amendment.
To say that this has been discussed over a period of time by a group,
or a large group--whatever the term was--of farmers across America, my
farmers were not involved in those negotiations. Senator Craig and I
have had any number of conversations about the bill and about our
various amendments. But we were not involved in those negotiations.
I see my friend from Iowa, Senator Grassley. He comes from the Farm
Belt of America. I daresay that his farmers were not involved in those
negotiations. Let us be very clear about this. There was not a
discussion or a negotiation by America's farmers for what they thought
was best.
Mrs. FEINSTEIN. Will the Senator yield?
Mr. CHAMBLISS. I would be happy to yield.
Mrs. FEINSTEIN. I can speak for California, and California's Farm
Bureau has signed off on this. I can tell the Senator that no State has
as many farmers and growers as California does. This is the accepted
agreement.
I thank the Senator.
Mr. CHAMBLISS. I thank the Senator from California for her comments,
and I tell her that I dialog with many farmers in her State on a
regular basis, particularly as chairman of the Agriculture Committee. I
am hearing from a large number of her farmers in strong support of my
amendment.
Again, when you say that a majority number of farmers in America
think this is the way to go, you can't say that. That is simply not
right. There are only--by Senator Craig's numbers--less than 50,000
farmers in America--and I happen to agree with him on this--who
currently utilize H-2A. I daresay the rest of the farmers in America
don't even know what ``adverse effect wage rate'' means. But I can tell
you they know what ``prevailing wage rate'' means. They know when they
hire a tractor driver in the southwest part of Texas what their
neighbors are paying for a tractor driver. And that is how you
calculate a prevailing wage. That is not how adverse effect wage rate
says you will pay that tractor driver.
Whether farmers in California or farmers in Georgia or the northeast
part of our country, the market should dictate, and the market dictates
under the prevailing wage rate. It simply does not dictate under the
adverse effect wage rate.
That is why, in the Senator's bill, the adverse effect wage rate is
rolled back 4 years. There is a flaw in the way the wage rate is
calculated. If you are going to roll back the wage rate, which is
actually going to move toward the utilization of the prevailing wage
rate, let's do it now. Let's require that all farmers in America pay a
reasonable wage rate for their employees based upon what other farmers
in that region pay for employees.
For example, I know in northern California there are different crops
grown than in southern California. There are different types of jobs.
But today, under the AgJOBS bill, a farmer in northern California will
pay exactly the same wage rate as a farmer in southern California.
Here is the chart. This shows how wage rates under this bill are
calculated. They use the entire State of California. It is a different
type of farming. There is a different skill required in northern
California than there is in southern California. There is a different
skill required in a tractor driver versus somebody who goes into the
field and cuts lettuce or cuts cabbage or cuts squash or whatever it
may be.
Under the adverse effect wage rate in the base AgJOBS bill, that is
not taken into consideration. Under the prevailing wage under my
amendment, it is taken into consideration.
If anyone says it is difficult to determine, how do I know in my
example of Thomasville, GA, what it takes to hire that worker? Let me
tell you what you have to do. You simply have to go to the computer and
plug into a Web site, the Department of Labor. And you designate the
area. You put into the computer where you are located, what the job is,
and the computer immediately gives you what the Department of Labor has
determined to be a prevailing wage. It is very simple and very easy. It
ensures that one farmer next door to another farmer is paying employees
the same wage rate. You don't have a farmer who is paying $8.37
currently required by the adverse effect wage rate and the farmer next
door paying $5.15 an hour for the same job.
This is about fairness. It is about equity. It is about ensuring that
farm workers who come here under the base bill, which I, frankly, don't
agree with, but if we are going to pass this, then let us be fair to
those employees who come here and work in agriculture. Let us pay them
the rate that is prevailing in the area in which they work.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. CRAIG. Mr. President, standing in opposition to the amendment, it
is fascinating to me that we now want to play a game of what groups and
whose associations. I find it fascinating that the California Farm
Bureau, which supports the position, isn't quite good enough. The
California Apple Commission, the California Avocado Commission, the
California Association of Nurseries and Garden Centers, the California
Association of Wine Grape Growers, the California Canners and Peach
Association, the California Citrus Mutual--we have nearly 500 groups
that have endorsed this.
The reason they have endorsed it is because they see the need to do
it right and get a reasonable transition.
The Web site the Senator from Georgia is talking about has to be
right. It has to be effective and reflective. It doesn't do that today.
That information is now not available in that context.
Let me go back to the transition. We are talking about those who are
illegal today and wanting them to come forward, get a background check,
show us their credentials, qualify for a transitional status, called
earned adjustment status, and a blue card, and to do so in a fair and
responsible fashion.
They can stay and continue to work. While they are doing that, we are
going to work to get the wage scale right. In our work over the last
good number of years, literally hundreds and hundreds of agricultural
groups and associations have stepped forward and said: Help us fix
this. Help us use this blue card to get across, in a transitional way,
for a legal workforce, in a reformed H-2A program. The compromise that
the Senator from California talked about was just that. It was a
transitional wage to get this fair and equitable.
What the Senator from Georgia is doing is not affecting the 40,000-
plus of H-2A under adverse wage. We are doing that. We are shoving
those wages back. He is affecting the 1.5 million that may cause
agriculture to become noncompetitive if we don't get the wage scale
rate right and involve agriculture along with the Department of Labor,
as our studies would do, to make sure we get an equitable and fair
wage. Fair means two sides. For the worker, it means certainty; for the
producer, absolutely, the product that is produced--especially in the
vegetable crops, in the intensified labor crops--has got to be
competitive against a world market crop, or we will shove those
producers and that kind of production out of the country.
We have to do it in a balanced way. What we have offered allows the
Senator from Georgia, as the chairman of the Agriculture Committee, to
participate. He did not participate in these negotiations because he
did not agree with them. He did not agree with the transition of
getting through what we attempted to do in AgJOBS. That was his choice.
In the end, both he and I agreed on many of the provisions except this
one. It is important we stay with the work product.
Literally hundreds and hundreds of farm groups and associations
across
[[Page S4869]]
the Nation that deal with this type of workforce recognize the need of
the transitional period of time and the legality of the workforce, as
do we. It is reflected in the bill. I hope our colleagues continue to
support it.
Mr. LEAHY. Mr. President, the Comprehensive Immigration Reform Act
includes a subtitle known as AgJOBS, a bill that has long been
championed by Senator Craig, Senator Kennedy, and a broad bipartisan
group of Senators. I strongly support this bill because it will help
both farmers and farm workers in Vermont and around the Nation.
AgJOBS contains a package of reforms that are badly needed in the
seasonal agricultural worker program, called H-2A visas. AgJOBS was
negotiated with the full participation of agribusiness and farmworkers'
unions, and it reflects a fair and thoughtful balance of the needs of
both farmers and workers.
The version of AgJOBS contained in S. 2611 protects business by
ensuring a steady flow of legal workers. It assists agricultural
workers by preventing wage stagnation in a growing economy and by
providing labor protections. It helps both business and labor by giving
trained and trusted foreign agricultural workers a path to permanent
immigration status if they meet the requirements in the bill, such as
paying fines and taxes, keeping a clean criminal record, and working
the requisite number of hours.
The Chambliss amendment is an attack on wages for agricultural
workers who are among the lowest paid laborers in America. By unfairly
favoring the growers over foreign workers, the Chambliss amendment
would upset the careful balance on wages and labor protections that
were negotiated with the participation of agribusiness and unions in
the AgJOBS bill.
The Chambliss amendment requires employers to pay workers the highest
of two wage rates: the prevailing wage in the area of employment, which
may be determined by an employer who conducts his own local survey, or
the applicable State minimum wage. Basing wages on the higher of these
two rates could result in deep cuts to wages. Some State minimum wages
are very low, such as Kansas, which requires only $2.65 per hour.
Senator Chambliss previously acknowledged that farm wages could fall by
roughly $3 per hour under his proposal. His proposal almost guarantees
that no U.S. workers could afford to accept agricultural jobs and that
foreign agricultural workers, who are already among the most poorly
paid workers in America, would be paid miserly wages for their labor.
The Chambliss formulation does not include the well-balanced
provisions of AgJOBS. Under AgJOBS, an employer must pay the highest of
three wage rates: (1) the prevailing wage, (2) the Federal or State
minimum wage, (3) or the ``adverse effect wage rate,'' or AEWR, a
regional weighted average hourly wage rate for agricultural workers.
The AEWR was established under the Bracero guest worker program for
Mexican workers that ended in the 1960s. It was created to ensure that
guest workers would not adversely affect American workers by depressing
wages. Removing AEWR from the wage equation drives wages downward,
which hurts all workers--American and foreign. It is no secret that our
agricultural industries depend on cheap labor, and some estimate that
70 percent of agricultural workers presently working in the U.S. are
undocumented. For all the of national security reasons I have cited
throughout this debate, we need to bring agricultural workers out of
the shadows. But we must also recognize that vulnerable populations
deserve our support and protection. Farm workers are among the most
vulnerable laborers in the Nation and I cannot support an amendment
that would slash their wages further.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. CHAMBLISS. How much time remains?
The PRESIDING OFFICER. The Senator from Georgia has 7\1/2\ minutes.
The Senator from Massachusetts has 6\1/2\ minutes.
Mr. KENNEDY. I yield myself 4 minutes.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I thought there were certain values in
this Senate upon which we could agree. If you work hard in this
country, you shouldn't live a life of poverty. We have been trying to
raise the minimum wage--which is $5.15 an hour--trying to raise that
for over 9 years, and our Republican friends, including the Senator
from Georgia, have been opposed to it.
Look what this bill does. The current farm wage is $10.11; for an
agricultural job, it is $7.86; and the Chambliss amendment is below the
minimum wage. Not only is it below the minimum wage, but he
specifically writes in his amendment that it will be below the minimum
wage and State minimum wages will apply when they apply. But Georgia
does not have a State minimum wage.
I don't know what the Senator from Georgia has against someone
working for $7.86 an hour. The cost of gas has gone through the roof.
The cost of food has gone through the roof. A gallon of milk is $3.09 a
gallon; eggs, $1.39; a loaf of bread is $3.29; a pound of hamburger is
$3.99. And the Senator from Georgia, if we follow his suggestion, is
driving wages down, not up.
This is $7.86 an hour to try to get along. What we are trying to do
is reduce the disparity. The Senator from Georgia said we were not
involved in this. Well, we have 400 different organizations indicating
to the Senate their support. We have broad support. More than 60
Members, Republicans and Democrats, cosponsored it, to bring it up to
$7.86. But no, the Senator from Georgia wants this down to what some
people have said is paid to pieceworkers, $3 or $4 an hour. Three or
four dollars an hour? We might not have many farmers in Massachusetts,
but whoever we have in Massachusetts understands below poverty wages,
and $3 or $4 an hour for piecework is a poverty wage. It is wrong.
If it is so troublesome that they are going to get paid $7.86, if
Members are so worked up about that, if Members think that is too much
for someone who works hard, for someone who does some of the most
difficult work in this country, go ahead and vote for the Chambliss
amendment.
Mr. President, $7.86, when these workers have to pay $3 to get a
gallon of gasoline? Talk about fairness. I listen to the Senator from
Georgia. Let's talk about fairness. Let's talk about equity. Let's talk
about treating everyone the same. They will be treated the same, but
they will be treated mighty shabbily. This is a question of respect for
those workers. Do you respect them in the United States, these hard-
working people? Finally, about 20 percent of agricultural workers are
Americans. You will depress their wages, too? Evidently. I hope we are
not going to be about that at this time in this debate and discussion.
I noticed that on page 2, the Senator talks about the prevailing
wage, the occupation, and the applicable State minimum wage. Is there a
State minimum wage in Georgia, I ask the Senator?
Mr. CHAMBLISS. The minimum wage in Georgia is $5.15 an hour.
Mr. KENNEDY. In agriculture?
Mr. CHAMBLISS. Yes.
Mr. KENNEDY. The State minimum wage in agriculture is $5.15 an hour.
Am I right that there is no way that even those who are picking per
bushel would go below $5.15 an hour?
Mr. CHAMBLISS. What happens is these wage earners in the fields in
Georgia and all over the country go out and they take a bucket out into
the field. They cut squash, cucumbers, or they cut whatever the crop
may be, they put it in that bucket, they dump that bucket in a bin, and
they are given a chip. At the end of the day, those chips add up to
dollars. They are required to be paid the minimum of either the minimum
wage or, in this case, the adverse effect wage rate.
Mr. KENNEDY. I understand I may be wrong, and I wish the Senator from
Georgia would correct me, the State minimum wage does not apply to
agricultural workers. That is my understanding. If I am wrong, I hope
the Senator will correct me. My understanding is the State minimum wage
does not apply to agricultural workers.
I withhold the remainder of my time.
Mr. CHAMBLISS. I yield 3 minutes to the Senator from Georgia, my
colleague, Senator Isakson.
Mr. ISAKSON. Let me respond to the distinguished Senator from
Massachusetts.
[[Page S4870]]
Something he said--I am sure unintentionally--was very incorrect. He
said we are going to force people, by what the Senator is trying to do,
to earn less than the minimum wage. What we are, in fact, trying to do
is to ensure that those who are working in the fields, who are illegal
and are being abused and are not being paid the adverse effect wage
rate, prevailing rate, or anything else, all those--maybe 1.8 million--
will now get a pay raise under what the Senator is trying to do. He is
saying they will be paid the higher of the minimum wage or the
prevailing wage.
I ran for the Senate in the years 2003 and 2004. Although I worked
farms in the 1950s, I had not been on a farm in a long time, and I
spent a lot of time in south Georgia, slept in a lot of barns on farms.
I got to know the onion folks, the peanut folks, and the row crops.
I spent the night in a farmer's barn--a mighty nice barn, I might
add, with a nice double bed--I spent the night in the barn, and he
complained about what happened. He hired H-2A workers, as he
should, legal workers. According to the law, he paid them the adverse
effect wage rate, and the farmer down the road from him hired illegals
and paid them the minimum. They got away with paying much less for
picking the same crop he was because he was obeying the law.
The circumstances the Senator has right now in the United States of
America are the following: The unintended consequence of the adverse
effect wage rate is that you are driving farmers to hire illegally
rather than hire legally and pay them at adverse effect wage rates.
That is what the Senator is trying to correct.
But it is absolutely incorrect to allege or to say that the bill of
the Senator from Georgia, the chairman of the Agriculture Committee,
would force people to be paid below the minimum wage. It will, in fact,
ensure that workers will be paid the higher of the minimum wage or the
prevailing wage; is that not correct?
Mr. CHAMBLISS. That is correct.
Mr. ISAKSON. Facts are stubborn things. We can argue about a lot of
things, but treating people right is something Senator Chambliss has
been doing in Georgia, what I have grown up in Georgia doing, and I am
sure what the Senator from Massachusetts does. The argument here is
about repealing a law that has the unintended consequence of making it
attractive to hire illegal aliens to work. What this bill is supposed
to be doing is fostering legal immigration and equitable treatment for
all.
I commend the distinguished Senator from Georgia. I commend the
chairman of the Agriculture Committee. I pledge my support to this
amendment and congratulate him on this effort.
I yield back the balance of my time.
Mr. KENNEDY. How much time do we have?
The PRESIDING OFFICER. The Senator has 1 minute 34 seconds.
Mr. KENNEDY. I yield a minute to the Senator from Idaho. I will
reserve 34 seconds for myself.
Mr. CRAIG. Mr. President, as of April of 2006, the average
fieldworker in the United States was paid $8.96 an hour. The average
livestock worker was paid $9.30 an hour. The minimum wage is $5.15. Do
the math. That is why, when we put this bill together, we said we have
to get it right for all parties involved.
I agree with the Senator from Georgia, producers are willing to pay a
fair wage. And they should. And workers who work as hard as
agricultural workers ought to be paid a fair and good wage. At the same
time, we compete in a world market, and I hope we stay there.
I don't think you can meet with one farm organization and establish
what the prevailing wage is going to be. That is why we mandated in our
bill that the Department of Labor work with agriculture to get it right
because we conclude that the H-2A adverse effect wage rate got out of
line. I don't know what the right wage is. I wager that the Senator
from Georgia probably doesn't know where it ought to be, either, in
every segment of agriculture in our country.
I wish the Senators would stay with the bill and vote down the
Chambliss amendment because in the end we want to get it right for all
involved. We want to keep American agriculture competitive in a world
market.
Mr. KENNEDY. Mr. President, no matter how you slice it, this is a
major cut for workers with the Chambliss amendment, No. 1.
No. 2, we are trying to remedy the situation between documented and
undocumented workers. We hear we have to do this because we are forced
to have illegal workers. We are changing all of that. We are putting in
place a system so we will have verification.
We do believe this figure, the $7.86, for workers who work hard, play
by the rules, and are trying to provide for their families, is not
unfair, at a minimum. That is why I hope the Chambliss amendment will
be defeated.
The PRESIDING OFFICER. The Senator from Georgia has 4 minutes
remaining.
Mr. CHAMBLISS. Mr. President, I simply say to my friend from
Massachusetts, I hear what the Senator is saying relative to the
numbers the Senator just addressed, but here is what you are doing. You
are taking 40,000 agricultural employees who now operate under H-2A and
you are reducing their wages immediately. The chart Senator Craig had
up here Thursday night showed what the numbers are. I don't remember
what they are, but it is a significant reduction because you are
rolling that wage back to what it was 4 years ago. Now, that is 40,000
agricultural workers.
Here is what you are doing to 1.5 million agricultural workers under
your bill. You are going to allow farmers across America who do not
participate in H-2A to pay those blue card workers $5.15 an hour. We
can argue whether minimum wage is high enough, whether it ought to be
more, but that is the effect of what you are doing with your blue card
workers. So if the $7 number is good enough for H-2A or not good enough
for H-2A, whatever it is, it ought to be good for those 1.5 million
workers who will have a blue card. That is what fairness in my
amendment is all about.
When Senator Craig says let's get it right, let's do get it right. We
agree the adverse effect wage rate is wrong. There is no disagreement
about that. The question is, How do we correct it? How do we get to the
point where it is fair? The way we get to the point where it is fair is
we take the same method of calculation we do under every other labor
bill, including the one we just passed last week, the H-2C bill that
Senator Obama said: Let's put a prevailing wage rate on H-2C. I say
let's put a prevailing wage rate on H-2A.
We understand we are not the ones to calculate that. It is calculated
by the Department of Labor. It is calculated by the Department of Labor
based upon the fair and accurate wages paid to individuals in different
parts of the country who perform different jobs within agriculture. It
is very easy to ascertain by the farmer what that wage rate ought to
be.
It will remove the ability of the next door neighbor to come in and
undercut that farmer, whether he is a blue card worker or whether they
continue to be here illegally. It will depress the wages for those
farmers rather than raising the standard for all workers to be paid a
fair wage. It will encourage farmers--this is what we want to do--to
participate in the H-2A program. If we had every farmer in America
doing that, they would have a quality supply of labor from which to
choose. They would have to pay those workers a reasonable rate, and
America would never be in a position of being dependent upon foreign
imports for our food supply.
We cannot afford to get there. This is a national security issue. We
need to make sure farmers have those workers from whom to choose to
make sure their crops are harvested.
Mr. President, I yield back my time, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. CRAIG. Mr. President, I move to table the amendment, and I ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the motion.
[[Page S4871]]
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Wyoming (Mr. Enzi), the Senator from Arizona (Mr. McCain),
and the Senator from New Hampshire (Mr. Sununu).
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden),
the Senator from Minnesota (Mr. Dayton), the Senator from New Jersey
(Mr. Menendez), and the Senator from West Virginia (Mr. Rockefeller)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden), would vote ``yea.''
The PRESIDING OFFICER (Mr. Thune). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 50, nays 43, as follows:
[Rollcall Vote No. 136 Leg.]
YEAS--50
Akaka
Baucus
Bayh
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Craig
Crapo
DeWine
Dodd
Domenici
Dorgan
Durbin
Feingold
Feinstein
Hagel
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Martinez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Salazar
Sarbanes
Schumer
Shelby
Specter
Stabenow
Voinovich
Wyden
NAYS--43
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
DeMint
Dole
Ensign
Frist
Graham
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Smith
Snowe
Stevens
Talent
Thomas
Thune
Vitter
Warner
NOT VOTING--7
Biden
Dayton
Enzi
McCain
Menendez
Rockefeller
Sununu
The motion was agreed to.
Mrs. FEINSTEIN. Mr. President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 4076, as Modified
The PRESIDING OFFICER. Under the previous order, the pending question
is now amendment No. 4076, as modified, of the Senator from Nevada.
Mr. ENSIGN. Mr. President, have the yeas and nays been ordered?
The PRESIDING OFFICER. They have not.
Mr. ENSIGN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. ENSIGN. I thank the Chair.
The PRESIDING OFFICER. There is now 2 minutes equally divided for
debate on the amendment.
The Senator from Nevada is recognized.
Mr. ENSIGN. Mr. President, very briefly, to inform my colleagues,
this amendment is basically the President's proposal to use the
National Guard to secure our borders as an interim step as we are
adding to our Border Patrol agents on our southern border.
We all know we cannot have a commonsense, comprehensive immigration
policy without having secure borders. It is going to take us years to
get enough Border Patrol agents down there. In the meantime, we need to
have the National Guard to supplement and to multiply the force of the
Border Patrol agents down there. That is what this amendment does. I
believe it is an important step toward making sure we know who is
coming into this country, making sure terrorists are not coming into
this country.
Mr. President, the Ensign amendment would codify the President's
proposal to deploy the National Guard to the border. The President's
proposal strikes a careful balance.
Over the next year, they would send up to 6,000 guardsmen. The
following year, they would decrease this to a maximum of 3,000
guardsmen. As the guardsmen stand down, the Border Patrol would stand
up, and in the end, we would have 6,000 more Border Patrolmen securing
the border.
I remain concerned about the strain on the Guard. It is reassuring
that the deployment will be limited in number and duration. I hope the
administration will work closely with the Pentagon to ensure that we
are not putting greater strain on those specialties that are needed in
Iraq and Afghanistan.
Also, I applaud the President's decision to use the Guard in a
supporting role and not for direct law enforcement missions. The Guard
is not trained for the civilian Border Patrol missions and its complex
combination of law enforcement, civil rights, and human rights issues.
Nor should we ask them to be, for this is not their mission. They
should provide support to the Border Patrol.
We must also ensure that any Guard activity is coordinated with the
Governors. I agree with the border State Governors that securing our
borders, particularly for the long term, is a law enforcement function.
We should not militarize the borders. And, in the short term, we should
respect the desires of the border State Governors regarding the
utilization of the Guard along the border.
I urge that my colleagues support this amendment.
Mr. WARNER. Mr. President, I rise to add my support to this very
important amendment offered by my good friend and colleague from
Nevada, Senator Ensign.
Last Monday evening, a week ago, the President addressed this Nation,
forcefully and articulately making the case that one of the necessary
steps in undertaking comprehensive immigration reform is to secure our
national borders, particularly along our Southwestern States.
Following the President's speech by little more than a day, the Armed
Services Committee held a hearing during which we closely questioned
senior members of the Department of Defense, Joint Chiefs of Staff, the
Chief of the Border Patrol, and the Chief of National Guard Bureau on
the President's plan.
I strongly support the President's plan, and, on the basis of our
hearing and subsequent discussions, I strongly believe that the
National Guard is capable of providing this temporary support to the
Bureau of Customs and Border Protection without degrading either its
readiness for combat or its ability to respond to domestic emergencies.
I also believe that this amendment is important to show that the
Congress is behind this effort to secure our borders as part of
comprehensive immigration reform, and that we will provide the
resources and legislation to do so. This amendment provides specific
authority for deployment of the National Guard, and does so in a way
that is careful to authorize both the types of activities, the duration
of the training rotations, a limit on the authority to use the Guard
for direct participation in law enforcement consistent with the
President's intent, and a sunset date for the authority.
I commend my colleague from Nevada, who serves with me on the Armed
Services Committee, for this important amendment that puts the full
force of Congress behind the President's initiative to secure our
borders and support our Border Patrol with the National Guard.
Mr. LEVIN. Mr. President, I intend to vote in favor of the Ensign
amendment to authorize the National Guard to assist in securing the
southern border of the United States. The National Guard has been used
in a State status to perform Federal missions in the past--for
counterdrug and counterterrorism missions--but Congress provided
express statutory authorization for these efforts.
I believe that it is essential that we provide a similar statutory
authorization here. This authorization gives Congress an appropriate
opportunity to define the circumstances in which it is appropriate to
provide Federal reimbursement for the National Guard in State status
and the types of activities for which Federal reimbursement will be
provided.
The key to the Ensign amendment, in my view, is that it makes it
clear that the National Guard of a State will perform this mission only
if ordered by the Governor of the State to do so. This provision makes
it clear that the Governors retain control of the National Guard when
it acts in a State
[[Page S4872]]
status. For these reasons, I support the Ensign amendment and urge my
colleagues to support it as well.
Mr. BYRD. Mr. President, the Senate will soon vote on an amendment to
authorize the use of the National Guard along the Southwest border of
the United States. Last week, in hearings before the Appropriations
Committee and the Armed Services Committee, I asked senior
administration officials from the Department of Defense, the Border
Patrol, the National Guard Bureau, and other military leaders about my
concerns that this mission would detract from the ability of the
National Guard to respond to emergencies in their home States.
Secretary of Defense Donald Rumsfeld, Chief of the National Guard
Bureau General Steven Blum, and other witnesses gave their assurances
that this plan to deploy troops to the border would not create a new,
strenuous deployment of the Guard, it would not leave our States in a
bind should a disaster strike while troops were on deployment, and it
would allow Governors to make the final call as to whether National
Guard units from their States should be used in support of the Border
Patrol. Those witnesses also testified that National Guard units would
only be used in missions and roles for which the troops are already
trained.
I expect the administration to hold firm to these assurances, and the
amendment before the Senate would help to limit the scope of the
missions for which the Guard may be deployed.
While I still have questions about how the National Guard will carry
out the missions that are assigned to it, we must not overlook the fact
that the administration has missed many opportunities to tighten
controls at our borders without depending on our citizen-soldiers to do
the job. Since September 11, I have offered nine amendments to provide
more funds to hire more Border Patrol agents, strengthen security at
our borders, and stop the flow of illegal immigrants and contraband
into our country. The administration opposed each one of my amendments,
labeling them to be ``extraneous,'' ``unnecessary'' spending that would
``expand the size of government.'' If my amendments had been approved
and supported by the administration, there would be thousands more
Border Patrol agents on the job today.
Real homeland security cannot be found in a patchwork of quick fixes.
Sending troops to the border is at best a Band-Aid solution to a
serious problem. I will support this amendment, but I will also
continue my efforts to provide the funds that are needed to provide
lasting improvements to our border security.
action consistent with president's plan
Mrs. BOXER. Mr. President, the Bush administration has announced a
plan that includes the use of National Guard forces to temporarily
support Federal border patrol operations. While I support additional
efforts to secure our borders, it is disappointing that nearly 5 years
after the attacks of September 11, 2001, there are still insufficient
U.S. Border Patrol personnel to adequately maintain the southern land
border.
I appreciate the efforts by the Senator from Nevada to clarify the
role of the National Guard in implementing the President's plan to
secure the border. It is my understanding that the National Guard is
being utilized under title 32 of the United States Code, which means
that command and control rains with the Governor and the State or
territorial government even though the Guard forces are being employed
in the service of the United States for a Federal purpose. I also
understand that under title 32, the Federal Government will reimburse
States for costs, including the logistical costs, incurred during the
mission. Finally, I understand that the National Guard will not
directly participate in any law enforcement function, including search,
seizure, arrest or similar activity.
Does the Senator from Massachusetts share my understanding that the
Ensign amendment is consistent with the President's plan?
Mr. KENNEDY. Mr. President, the Senator from California is correct.
Mrs. BOXER. Mr. President, I thank the Senator from Massachusetts.
Mr. KENNEDY. Mr. President I ask unanimous consent that the following
letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
May 18, 2006.
Dear Senator: We the undersigned write to strongly oppose
the Chambliss amendments aimed at gutting the ``AgJOBS''
compromise contained in the Hagel-Martinez bill before the
Senate. The AgJOBS language is the product of the hard work
of Senators Craig, Feinstein and Kennedy in collaboration
with agribusiness employers, farmworker organizations, and a
bipartisan group of Members of the House. We strongly support
these needed reforms for the agricultural industry and its
workers and we oppose changes that would turn this balanced
package into a Bracero program.
In particular, we oppose the Chambliss amendment to lower
the wages for farmworkers. Amendment 4009 would change the
AgJOBS compromise on wage rates and slash the H-2A program's
already inadequate wage rates by eliminating the protection
of the adverse effect wage rate and the federal minimum wage
from H-2A workers.
Currently, H-2A employers must pay the highest of three
wage rates--the state or federal minimum wage, the ``Adverse
Effect Wage Rate'' (AEWR), or the local prevailing wage. The
AEWR was created under the Bracero guestworker program as a
necessary protection against depression in prevailing wages
(wage rates often stagnate because the guestworkers have
little ability to demand higher wages). Sen. Chambliss
himself described the effect of his provision as cutting H-2A
program wage rates by roughly $3.00 per hour!!
The AGJOBS compromise already addresses the H-2A wage
issue. AgJOBS would reduce the adverse effect wage rates for
each state by about 10% by setting them at the rates in
effect on January 1, 2003, and would then freeze the AEWR's
for three years, while two studies are performed to examine
H-2A wage rates and make recommendations to Congress. If
Congress were to fail to enact an adverse effect wage rate
formula within 3 years, the AEWRs would be adjusted at the
end of 3 years by the cost of living. The AEWR issue is a
complex one and is best left to the studies agreed to in the
AgJOBS compromise.
Congress should not approve amendments that will encourage
the agricultural industry to hire guestworkers at depressed
wages--and that is exactly what the Chambliss amendments
would do. This will harm both foreign workers and U.S.
workers)and the effort should be opposed.
Thank you for your consideration of this matter.
Sincerely,
American Federal of Labor-Congress of Industrial
Organizations (AFL-CIO); American Federation of State County
and Municipal Employees (AFSCME); Catholic Charities USA;
Change to Win; Evangelical Lutheran Church in America;
Farmworker Justice; Hebrew Immigrant Aid Society (HIAS);
International Brotherhood of Teamsters; The International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW); Laborers' International
Union of North America; League of United Latin American
Citizens (LULAC); Mexican American Legal Defense and
Educational Fund (MALDEF); National Council of La Raza
(NCLR); National Farm Worker Ministry; National Immigration
Forum; National Immigration Law Center; Service Employees
International Union (SEIU); UNITE HERE; United Farm Workers
of America (UFW); United Food and Commercial Workers
International Union (UFCW).
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I believe most of us strongly support
deploying the National Guard to our borders. I appreciate very much the
sentiment and the direction this amendment goes. Unfortunately, it
limits their ability and puts limitations on the time and on the
mission the Guard provides. When you are sending troops into a
difficult assignment, whether it is war or not, we should not be saying
the Guard can only stay so long, the Guard can only do this or the
Guard can only do that.
The President has outlined how he wishes to use the Guard. I support
that. I believe it is a bad idea for Congress to say how we should be
using our troops, whether it is in national security or homeland
defense. Therefore, I urge a ``no'' vote.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I wholeheartedly support what the Senator
from Missouri has said.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. ENSIGN. Mr. President, I ask unanimous consent for an additional
30 seconds to respond.
Mr. LEAHY. I ask unanimous consent that Senator Bond also have an
additional 30 seconds.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S4873]]
Mr. ENSIGN. Mr. President, briefly, regarding the limitations the
Senator from Missouri has brought up, a third of the forces the
President has envisioned would not have any limitations. Two-thirds
would basically be on their annual missions of 21 days, and they are
specifically for the perception that they are there for police
enforcement and are doing what the Border Patrol agents do. We put in
the bill specifically what they would be doing.
There is all the flexibility in the world for the Guard to do the
mission they are being sent down there to do. I think the concerns
being raised are unfounded.
Mr. BOND. Mr. President, I appreciate the effort the Senator from
Nevada is making. The problem is, some on the training missions may
have to spend longer than that. They may want to spend longer than
that. It may have the effect of having a different percentage of the
Guard used for more than 15 days. It specifies limits on it.
I believe that while we support the general purpose of using the
Guard, Congress should not be putting limitations on how it is used. I
disagree with my colleague.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Nevada. The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Wyoming (Mr. Enzi), the Senator from Arizona (Mr. McCain),
and the Senator from New Hampshire (Mr. Sununu).
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden),
the Senator from Minnesota (Mr. Dayton), the Senator from New Jersey
(Mr. Menendez), and the Senator from West Virginia (Mr. Rockefeller)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 83, nays 10, as follows:
[Rollcall Vote No. 137 Ex.]
YEAS--83
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bingaman
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Feingold
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Talent
Thomas
Thune
Vitter
Warner
Wyden
NAYS--10
Bennett
Bond
Cochran
Conrad
Harkin
Hatch
Jeffords
Leahy
Stevens
Voinovich
NOT VOTING--7
Biden
Dayton
Enzi
McCain
Menendez
Rockefeller
Sununu
The amendment (No. 4576), as modified, was agreed to.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask unanimous consent that when the
Senate resumes the bill tomorrow morning, there be 60 minutes for the
Feinstein amendment, with Senator Feinstein in control of 30 minutes,
20 minutes to the chairman, and 10 minutes for the ranking member;
provided further that on the expiration of that debate, the Senate
proceed to a vote on the Feinstein amendment No. 4087, with no
intervening action or debate or second-degree amendments. We will vote
on the Feinstein amendment at 10:45 a.m. tomorrow, since the Senate
will be coming in at 9:45 a.m.
The PRESIDING OFFICER. Is there objection?
The Senator from New Hampshire.
Mr. GREGG. Mr. President, reserving the right to object, I would like
to ask of the chairman of the committee, Senator Cantwell and I have an
amendment that has been pending. We were willing to move forward last
week, we were willing to move forward today, and we are willing to move
forward tomorrow. I am wondering if the chairman can give us a sense of
when our amendment can be brought up so we can be heard and whether we
can get a commitment from the chairman that we will have a reasonable
amount of time, if not an excessive amount of time to debate it--say,
an hour or 2 hours.
Mr. SPECTER. Mr. President, my sense is we will be able to reach it
tomorrow. We are juggling a great many considerations. I had discussed
the issue with the Senator from New Hampshire earlier. We talked about
1 hour equally divided.
Mr. GREGG. That would be fine with me if the other side is agreeable
to that.
Mr. SPECTER. That would be my proposal when we come to it. I know the
Senator from New Hampshire is waiting, and he is entitled to have his
amendment heard. We will try to get to it tomorrow, and we will try to
work out a time agreement of 1 hour equally divided.
Mr. GREGG. I appreciate the chairman making that representation. My
concern, of course, is that it not end up in a vote-arama, should we
get to a vote-arama, and that we have time to debate it. With that
representation, I will not object.
Mr. SPECTER. Mr. President, I do not expect vote-arama on this bill.
This is not the budget resolution. The Senator from New Hampshire is
familiar with budget resolutions.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from California.
Amendment No. 4087
(Purpose: To modify the conditions under which aliens who are
unlawfully present in the United States are granted legal status)
Mrs. FEINSTEIN. Mr. President, I call up amendment No. 4087.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein], for herself
and Mr. Harkin, proposes an amendment numbered 4087.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mrs. FEINSTEIN. Mr. President, this is an amendment to modify the
conditions under which aliens who are lawfully present in the United
States are granted legal status. It is submitted on behalf of Senator
Harkin and myself. We have a half hour to argue the amendment tomorrow,
but I would like to just raise a few points about it tonight. I did
have the opportunity to speak about it earlier, but I recognize many
Members were not yet back and available.
This amendment creates an orange card, a replica of which is on my
left. This would streamline the process for earned legalization. It
would create a more workable and practical program than exists in the
Hagel-Martinez compromise, and it would dedicate the necessary dollars
to cover the costs of administering this program. This amendment builds
on compromises already agreed to under the McCain-Kennedy and Hagel-
Martinez proposals, and it incorporates the amendments already adopted
on the floor, but it eliminates what I consider to be a very unworkable
three-tier program. This amendment only deals with the earned
legalization parts of the bill. It does not change any of the border
security provisions, the guest worker program, or any other component
of the bill. It would simply eliminate the program created by Hagel-
Martinez and replace it with this orange card program.
Under Hagel-Martinez, there are three tiers. Now, note this: We have
not voted on Hagel-Martinez. Hagel-Martinez was an arrangement put
together by Members of this body and it was brought up by using rule
XIV. We have not voted on it. It essentially takes the 11.1 million
people now in this country--working in this country, living in this
country, raising their families in this country, but doing so in a
clandestine way--and divides them into three different categories. For
the 6.7 million who have been here more than 5 years, it would provide
a transition to achieve earned legalization. For the 1.6 million who
have been here less than 2 years or the 2.8 million who
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have been here from 2 to 5 years, it creates two different tiers, and
this is the bone of contention, these two different tiers.
I would say for anyone here as of the first of the year, we should
provide this orange card process which I will describe in a moment. The
problem doing it the Hagel-Martinez way is that it opens the door for
fraud and for manipulation because you essentially have 4.4 million
people here less than 5 years who would come forward and produce, in
all likelihood, fraudulent documents, or simply remain in a clandestine
status because they are working and they have families here.
The 2.8 million who have been here 2 to 5 years are then subject to
leave the country, to touch back and enter into the country through a
visa program, most likely the H-2C worker program which has 200,000. We
lowered the cap for the H-2C program from 325,000 to 200,000 in an
earlier amendment offered by Senator Bingaman and myself. But what
people haven't realized is that the cap would be waived for individuals
coming in from this tier, which would raise the guest worker program to
3 million people. And then here is the rub with the guest worker
program: they would have to return after a period of time to their
country. Therefore, there is no automatic path to earned legalization
for these people, unless they can get an employer to petition for them
for a green card. I think that is an unusual responsibility placed on
an employer for so many people, and I think it is not fair for the
employee, either.
Therefore, we have put forward a three-step process under the orange
card amendment, which has received the support of 115 organizations and
groups.
Under this amendment, all undocumented aliens who are in the United
States as of January 1 would immediately register a preliminary
application with the Department of Homeland Security.
At the time of the registration, they would submit fingerprints to
the Customs and Immigration Services facility so that criminal and
national security background checks could commence. It would create a
more precise registration that would allow this to proceed
electronically. That is a major key--proceed electronically so that DHS
would have time to do the necessary processing and vet the application
in an orderly manner. Then they would submit a full application for
their orange card.
Once they have passed the security background check, they have paid
their back taxes, they have paid the $2,000 fine, then they would be
issued the orange card. The orange card would have biometric
identifiers, would have the history of the individual, and would have a
number, and this number would be designed so that those who have been
here the longest would be first in the line for the green card at the
end of the work period.
As everyone recalls, there are 3.3 million people back in their own
countries waiting for green cards. None of this goes into play until
that green card list is expunged. It is estimated that could take
anywhere from 6 to 11 years. So during that period of time, individuals
in this country would have an identifier: the orange card. This would
be their identification. They could come and go with it. It is fraud-
proof, it is biometric, it has a photo, it has a fingerprint, and
therefore provides a safe methodology. As long as individuals fill out
the annual reports required by the program which attest to their work
history, pay the fine, and pay their back taxes, they would keep the
orange card effectively in place.
I wish to comment that first of all, Senators Hagel and Martinez have
done a service. They have tried to work out a compromise. I find fault
with that compromise only when you read the small print of the bill
language. When you read the bill language, you see that it is a huge
program with 4.4 million people having to be found, having to be sought
out. If they are here for less than the 2 years, they are deported. Who
would deport them? How would they be found? You are going to find 2
million people? I think that is very difficult to do. We know employer
sanctions haven't worked. In 2004, total convictions under employer
sanctions for the tens of thousands of employers who employ these
people was a total number of 47.
So I believe the orange card would serve us well. It is a streamlined
process. It has the ability to consider all people to avoid the problem
of deportation but to create a system which is secure, where people are
checked out, where they are held accountable for their work, held
accountable for their payment of back taxes, held accountable for the
payment of a fine so they can then come out of the shadows and live a
more normal and more productive life.
This goes back to the original McCain-Kennedy formula, but in essence
it essentially provides that there is an orderly process connected with
this.
As I said earlier, I think there is a critical flaw in Hagel-
Martinez, and that is those people who fall into the second tier can
remain in the United States legally for up to 3 years, and then they
must leave the country and find a legal program from which they may
reenter the United States. This is the flaw because this would subject
people to, once again, going back into a clandestine lifestyle rather
than running the risk that they leave their families, go home, can't
get into a program, and then can't come back again.
The other problem with the Hagel-Martinez program is that if an
individual doesn't work for 60 consecutive days, they are out. There is
no provision for injury, there is no provision for illness, and when
you are dealing with 6 million people, that is a problem. Some people
are going to be the victims of bona fide injuries or bona fide
catastrophic circumstances and not able to work for a period of time.
So if they become injured or ill and effectively can't be on the job
for 60 consecutive days at any given time during the year, they are
then subject to deportation.
I believe we have an opportunity, through the border patrol with
12,000 additional agents, 2,500 additional inspectors, the money in the
supplemental appropriations bill for the border, the National Guard
doing logistical support and physical work on the border, and the fence
to be built on the border, to make a major step forward in securing our
borders. The next step and the most important part of the bill is what
is the proper handling of the 10 million to 12 million people who are
here illegally in our country at this time.
I would respectfully submit to this body that the fair handling of
these people is creating a pathway to an earned--not an amnesty--but an
earned legalization where people have to document over a consequential
period of time that they are working, they are good citizens, they are
learning English, they are paying their taxes, and they are paying the
fine. All of the proceeds from this fine would go to support the costs
of the program. If there are 10 million people, at $2,000, that
produces $20 billion for the additional hires that are necessary to run
this program and hopefully run it well.
So we will continue to argue this tomorrow, and I ask that the
amendment be set aside at this time.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from New Hampshire is recognized.
Mr. GREGG. Mr. President, I would like to speak briefly on my
amendment, which will hopefully be reached at some point here in the
next day or so. It is an amendment I sponsored with Senator Cantwell
from Washington, and it addresses what we see as an issue that,
although not major in the context of the overall immigration debate,
remains rather significant.
There is today something called a lottery system. It is
euphemistically called the diversity lottery system, which really I
don't understand why it has picked up that name because it is really
nothing like that. It is simply a lottery system. It says essentially
that 50,000 people will get the right to become American citizens if
they win a lottery and they are from countries which are deemed
underrepresented. Most of those countries represent Eastern Europe and
Africa. They don't have to do anything other than have a high school
education or, alternatively, have worked for 2 out of the last 5 years
in order to participate in this lottery. So the essential effect of
this lottery system is that we are taking from around the world 50,000
people
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who simply got lucky. There is no real reason we should take them.
There is no policy reason to take them.
There is no such thing as an underrepresented country really in our
immigration system because of the fact that there are so many illegal
immigrants in the country already. For example, if you were to take
Poland, there are 47,000 people in this country who under this bill are
presently illegal--that is the estimate--who may become legal. From
Russia, there are about 46,000 people who qualify in that area. From
Africa, there are 120,000 people who fall into that category. So these
countries have a lot of people already here--some legally, a lot
illegally, and they don't need representation.
Mr. FEINSTEIN. Mr. President, may I interrupt the Senator just for
one brief change?
Mr. GREGG. As long as I will not lose the floor.
Mr. FEINSTEIN. Mr. President, I ask that instead of setting aside the
amendment, it will be continuing in a pending status.
The PRESIDING OFFICER. The amendment is pending.
Mr. FEINSTEIN. Thank you very much.
Mr. GREGG. So this lottery system, which was created back a while
ago--I think in the early 1990s--in a sense of good will or political
correctness, really is not all that productive to us as a nation. So
Senator Cantwell and I have taken a look at it and said: Listen, if we
are going to have a lottery system, why don't we at least apply it to
people we actually need in this country to assist us in being a
stronger nation, a more vibrant nation, a more economically successful
nation?
We know that in our Nation today, we are missing--or not missing, but
we know we are not producing and creating enough people in the sciences
which are energizing economic activity in this world: the maths, math
doctorates, the science doctorates. We know we have a real lack of
technical ability in many arenas and that we are falling well behind
other nations, such as China, in our ability to produce people in the
sciences and math subjects.
Why not take this lottery system and say, rather than making it
available to the cabdriver in Kiev, whom we may or may not really need
in the United States, let's make it available to the physicist in Kiev.
Why not say to the doctor in Poland or the doctor in Nigeria: You will
have a chance to become an American citizen and have the opportunity to
participate in this lottery, rather than saying to the street sweeper
in Poland or the miner in Nigeria: It is your chance to participate in
the lottery. So we have taken this proposal, which is 50,000 names
thrown in a hat from these countries which are allegedly underserved,
which are not underserved, and we changed it so that two-thirds of the
names thrown in this hat will be of people who have advanced science
degrees, which our Department of Commerce and Department of State
determine are in need here in the United States. Two-thirds of those
lottery winners will have those degrees. The other third will remain
people who only need to have a high school education or have worked 2
out of the last 5 years.
Basically the lottery system will be changed from being one of, we
don't know who is coming in the country and we don't know what they are
going to contribute to our society as they come in--we hope they will
be people who will be hard-working and committed people, but they may
actually be people who are not. In fact, if a person has only worked 2
out of the last 5 years and doesn't have a high school education, they
can literally qualify for the lottery. Now I ask you, is that the kind
of person we want to have qualified for the lottery? A person who may
have been unemployed for 3 of the last 5 years, doesn't have a high
school education, but they can get into the United States under the
lottery. I think it makes much more sense to say let's have folks who
have shown their energy, shown their commitment, shown their
willingness to strive within their own communities by obtaining these
advanced degrees, let's have those folks participate in the lottery.
Some will say the H-1B program already solves this because it is
greatly expanded in this bill, and that allows people with advanced
degrees to come into this country. That is true. That is good. This
bill is excellent in that manner. But as a practical matter, this
lottery would go to people who do not qualify for H-1B. In other words,
to get an H-1B visa, you have to have a sponsor or, in other words, an
employer here in the United States who is going to hire you or you have
to have a family member who will sponsor you to come into the country.
There are a lot of people out there in these allegedly underserved
countries who do not have somebody who is going to employ them because
the groups that employ foreign nationals who have advanced science
degrees don't go to those countries. They don't recruit in those
countries, for all intents and purposes. And they don't have a family
member here. So they are out of it. They can't get in. So it makes
sense to take the lottery system and convert it to something that is
going to be an add-on to America's success.
We hear a lot in this Chamber, especially from some of our
colleagues, that we are outsourcing jobs, we are outsourcing our jobs
to other countries. What this proposal does is it insources people who
will create jobs in our country. It says let's go out and find the best
and the brightest people around the world and say: Listen, we would
like to have you live in the United States and create jobs in the
United States, use your ability to produce in the United States. If you
don't have a person who wants to employ you and you don't have a spouse
here who is willing to sponsor you or a family member who is willing to
sponsor you, we still would like you to have a shot at coming here,
because most would like to, and we have a lottery system that says you
can win it and get into this country.
I note that under the present lottery system, we have seen abuses. In
fact, the report of the inspector general of the State Department found
significant fraud and mismanagement of this program and the fact that
people were coming into the country who really should not have come
into the country, but they won the lottery or they were relatives of
people who won the lottery. Obviously, the most egregious example of
that was the terrorist individual who attacked the L.A. airport and
shot up the El Al counter. He was in the United States because his
spouse had won the lottery. Not a good decision for us.
It seems to me that rather than just flipping a coin and saying: Hey,
listen, if you are out there and you want to come to work and you are
from one of these countries which are allegedly underserved--which, by
the way, they are not underserved, as I pointed out in the early part
of my statement--you have a chance to come here. Let's at least say for
the majority of the people who have won the lottery that you have to
have done something, you have to have shown something, you have to have
produced something, you have to have been willing to go out there and
show you have the character and the energy and the intelligence to
actually be an addition to our society, an add-on, a creator of jobs in
our society, a creator of economic activity, a creator of a stronger
society rather than just have the good fortune of having drawn a lucky
number.
That is what this bill does. I cannot really understand the
opposition to it. A lottery system--I am not sure it ever really had a
good time to exist, but clearly now is not a good time for it to exist.
We have 12 million people in this country who arguably won the lottery
by coming into this country illegally. I guess you could say that.
Under this bill, some of them are really going to win the lottery
because they are going to go to the back of the line, but they are
getting on the line and obtaining what is called earned citizenship, as
the Senator from California was saying. But the simple fact is, we
don't need to add to that great mass of people. They are here already.
If we are going to add people to our culture from the immigration
standpoint, let's add people who we know on the face of it are likely
to contribute significantly to making us a stronger and more vibrant
nation, especially economically.
If we are going to have a lottery, let's just not make it an
arbitrary event. Let's make it something that assists not only the
person who wins but also our Nation, so that both sides
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are winners under the lottery, not just one side.
The House took a look at the lottery. In their bill, they determined
it was so inappropriate, they simply abolished it altogether. So it
seems to me if we take this position we will be strongly positioned in
conference to present the case that the lottery can work for us as a
nation, rather than be a loss leader. That is why this amendment has
picked up considerable support. It is bipartisan support.
I look forward to having a more extensive debate on it with my
cosponsor, Senator Cantwell, who understands. She comes from Washington
State where they understand the need to get some top-quality people in
our country in the area of science, as the home of Microsoft, which is
clearly the engine of the Internet, the engine of the expansion of
technology over the Internet and in computer science that has driven
the world, not only the United States. They understand uniquely in
Washington State, as we all hopefully do, the need to bring smart,
intelligence people from across the world into our Nation and keep us
competitive with countries such as China that are turning out four or
five or six times the number of scientists we are turning out annually.
That is why this is important. It is not, obviously, the biggest vote
on this stage. There have been a lot of votes dealing with the
substance of this bill which has huge implications relative to the
numbers of people who come into this country and how they come into
this country and how we protect our borders, but it is one part of the
system we have to make more rational, better, but to be a system where
not only does the immigrant win but America wins.
With that, I make a point of order that a quorum is not present.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I wish to speak in support of the
amendment of Senator Gregg to deal with the lottery provision that is
currently in the code involving immigration. We have many odd and
curious provisions in our immigration law, but I suppose the lottery
provision is one of the most odd and most curious. It seems to me to be
unprincipled, without any real thought as to how it would effect a
policy that is good for America. What kind of thing is this, that you
do a lottery to let people come in from around the world?
His approach would be to say: Let's focus two-thirds of those slots
on people with higher skills and higher education. I want to speak in
favor of that and say, really, we need not only to do this two-thirds,
but it would be better, in my view, to do the whole lottery program in
this fashion. In addition, we need to reevaluate entirely this bill
which is before us today to ask ourselves with some thoughtfulness how
we can make future immigration policy beneficial to our country. It
ought to benefit us. Everybody who comes here, no matter how poor or
uneducated, according to the witnesses we heard at our one hearing, is
benefited economically.
The poorer they are the more they benefit. They benefit, but the
question is, What about the United States? Do we benefit? Is it a net
gain for the United States?
We had a number of professors who testified--Professor Freeman,
Professor Siciliano, Professor Chiswick, and others whose names escape
me--and talked about this quite openly. These are the fundamental facts
that should be part of any thoughtful, comprehensive reform of
immigration in America.
The facts are these: People with college credit, people with a
college degree uniformly contribute more to this country in taxes than
they take out in benefits. The people who come to our country with less
than a high school education, a high school dropout or somebody who
just didn't have the opportunity, they don't have a high school
degree--and over 50 percent of illegal immigrants entering our country
today are without a high school degree--those people, it is uniformly
agreed by professional economists who studied this issue, most of whom
testified at our committee, strongly favor immigration but they all
agree they will on average--not every single one but on average--draw
more from the U.S. Treasury and U.S. coffers than they put in.
Does that tell us anything? What is happening in Canada? What is
happening in France right now? What has already happened in Britain,
Australia, Switzerland, and the Netherlands? These countries have
reevaluated their immigration policy. They are focusing on bringing in
people who benefit the country.
We cannot accept everybody. Isn't it a simple principle? There is no
way this country can accept everybody who would like to come.
The leading expert on immigration--I think universally agreed on
immigration--such as Professor Voorhas from the Kennedy School at
Harvard, he himself is an immigrant. He immigrated here from Cuba. The
name of his book, probably the most authoritative book on the entire
subject, is entitled ``Heaven's Door.'' What is that? ``Heaven's Door''
is entry into the United States.
For a poor person in the Third World who has been abused by a legal
system that does not work, who does not have clean water, who does not
have a legitimate job, who does not have electricity, getting to the
United States, the title of his book, is like going through Heaven's
door. It is a tremendous thing.
But the world has a lot of people in it. We already have a lot of
people in the United States. We have to ask ourselves: How many can we
welcome? What people will achieve their dreams and aspirations most
successfully here, people who are high school dropouts or people who
have a greater education?
We also need to ask, as Canada does: Do they speak English? Australia
does. They ought to speak English before they come here.
What is it about letting in hundreds and hundreds of thousands of
people on the theory that they might one day learn English, and that
would be a requirement for citizenship. But if we have gotten more
applicants than we can accept, why would we not want to ask ourselves
whether we should give extra points, a higher listing on the list, if
they already speak English? They would be guaranteed to be more
successful here and more likely to assimilate, more likely to be
promoted, more likely to be a boss over other people. If you can't
speak the language, how can you ever rise to be a supervisor?
Those are important things, I submit, and not considered in the
legislation before us at all.
Senator Craig's amendment is a very good amendment. It focuses on a
critical matter. Let me tell you what my staff has concluded from their
careful study of the bill. We believe that as it is presently written
today only 30 percent of the people coming into this country will come
in as a result of their skills or education. That is a pretty stunning
number. Only 30 percent coming into our country will have their entry
evaluated, their skill level or their education level, whereas 70
percent will come into our country for other reasons.
For example, if a young man came to our country under the new guest
worker program that would be made law today, and that guest worker
program would allow him to come into the country to file for a green
card the first day he arrived here, within 5 years from that he can
apply for and obtain as of right his citizenship in the United States.
That will happen under the bill. Within 6 years, the person could
possibly be a citizen of the United States coming in under a program
which the bill says is a temporary guest worker provision. They say it
is a temporary guest worker section of the bill. It has big letters,
``Temporary Guest Worker.''
But on the first day they get here, their employer can ask for a
green card. A green card means you have legal permanent residence.
Within 5 years of getting that card, they can become a citizen. A legal
permanent resident means if you never seek citizenship you can stay in
the country once you get that green card for the rest of your life.
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What I am saying is, under this provision a young man can come in--
and he is 20 years of age. If he works 5 or 6 years, he becomes a
citizen. Now he is 30, and he has a 50-year-old brother, a 60-year-old,
a 70-year-old mother and father. They can be brought into this country
under chain migration, whether or not they have any skills or any
education that would be relevant to their success in the United States
of America.
Think about this: Let us say they are both from Honduras. Let us say
this is a young man who was valedictorian of his school in Honduras,
who had a chance to take an English course and took English and learned
it well, was able to go to a technical college and became skilled in
electricity, and he applies at age 21 to come to the United States.
Would he not have the advantage over a 50-year-old brother or a 70-
year-old mother of someone who is already here when those people who
may or may not have any skills which would be beneficial to the country
could likely became a drain on the Nation's resources?
That is how we have 70 percent of the people coming into our country
under the new provision who are supposed to be in a comprehensive
reform of the immigration system? That does not make sense. We need to
focus more on providing opportunities for people to enter our country
who have the greatest potential to succeed. It is perfectly proper and
legitimate for us to ask: What is the worker status, the wages that are
being paid in a given area, and do we have a shortage?
In my view, the Department of Labor should not allow surging
immigration when we have certain fields in the United States where
there are more workers than there are jobs and you let a bunch of
people come in from out of the country to take what few jobs there are
leaving Americans unemployed.
We need to consider all of those things. But, fundamentally, when you
make a choice between two individuals--a younger person, a person who
speaks English, a person who has skills--who is going to be far more
successful? If they are successful here themselves, and if they benefit
and if they are blessed by the great freedoms and economic prosperity
and the free market we have in America, if they are blessed by that,
they will pay more taxes to the Government than they draw from the
Government. That is a pretty good thing, I submit.
One reason I have been so critical of this legislation--and I remain
steadfastly convinced that it is not worthy of the Senate of the United
States--is the legislation seems to have given no thought to these
issues whatsoever. We certainly never had a hearing to deal with it, to
my knowledge. A lot of things we haven't done that we could have done.
We could have studied more, we could have had more experts come in and
testify and help us craft the legislation. We should have brought in
immigration people who work for the Government of the United States to
find out what is working and what is not working.
I talked to the person in the Dominican Republic, the American
consulate official who meets with those people in the Dominican
Republic who would like to come to the United States. He seemed like a
very nice guy. He made some mention about sham marriages. So we talked
about that.
As a U.S. attorney prosecuting a case where people created a sham
marriage for immigration purposes, he said they won't even talk about
prosecuting a case in the Dominican Republic. And he has seen lots and
lots of sham marriage cases that were never prosecuted.
Why do they have a sham marriage? Because if you are married to
somebody who is in the United States, they can take their wife and
their children. That is the way to get people here. So they create a
sham marriage.
But he told me that 95 percent of the people in the Dominican
Republic who were approved to come to the United States were approved
under the chain migration or family connection provisions in our code.
Fundamentally, almost no one coming from the Dominican Republic to
the United States is coming because they have a skill that would
benefit us and that would indicate their likely success in our society.
They come in because some other family member of a qualified relation
is here as a citizen or even a green card holder. That is how they get
to come. They are creating a false document to show these are relatives
or their spouses and they are married when it is not so.
As I have said a number of times on the Senate floor, 60 percent of
the people in Nicaragua in a recent poll said they would come to the
United States if they could, and I understand 70 percent of the people
in Peru, when polled, said they would come to the United States if they
could.
What does that mean? Think about it.
Mexico, all of Central America, Haiti, the Dominican Republic,
Jamaica, Morocco, all of the African nations, the Middle East,
Bangladesh, China, India, Taiwan, the Philippines--all these nations
around the world with great people in them--wonderful people but in
each one of those countries are significant numbers of people, I
submit, who would come to the United States if they could. Wouldn't it
be a good policy for our Nation? Wouldn't it be the right thing to
think seriously about who should come, like Canada and Britain, and as
France did last week, and refocus our attention on accepting a certain
number of people but making sure those people bring skills and talents
with them to indicate they would be a positive benefit to our society
rather than a net drain on society?
That is a challenge. We simply cannot accept everyone who wants to
come. It is painful to bring people who are not able to speak English
or effectively take advantage of the opportunities our country has.
When they do not do that, they do not do well. They tend to pull
themselves apart and continue to speak their own language. They do not
advance and assimilate and become part of the great melting pot we are
so proud of as Americans.
It is a big step forward to take this lottery, to put two-thirds of
those people who are in it, who are now chosen by random chance,
without any regard to skills or abilities or language or those matters,
to at least set them aside for high-skilled positions for education,
science, mathematics. It would be a great benefit to our country.
I yield the floor.
Mr. LEAHY. Mr. President, when the Senate resumed its consideration
of comprehensive immigration reform last week I began by expressing my
hope that we would finish the job the Judiciary Committee started in
March and the Senate began in April. We need to fix the broken
immigration system with tough reforms that secure our borders and with
reforms that will bring millions of undocumented immigrants out of the
shadows. I have said all along that Democratic Senators cannot pass a
fair and comprehensive bill alone. Last week we got some help.
We got some words of encouragement from President Bush last Monday
night when he began speaking out more forcefully and in more specific
terms about all of the components needed for comprehensive legislation.
For the first time, he expressly endorsed a pathway to earned
citizenship for the millions of undocumented workers now here. I thank
him for joining in this effort. We will need his influence with the
recalcitrant members of his party here in the Senate, and especially in
the House, if we are ultimately to be successful in our legislative
effort. Without effective intervention of the President, this effort is
unlikely to be successful and the prospects for securing our borders
and dealing with the hopes of millions who now live in the shadows of
our society will be destroyed. Those who have peacefully demonstrated
their dedication to justice and comprehensive immigration reform should
not be relegated back into the shadows.
Last week the Senate made progress. We made progress because
Democratic and Republican Senators working together rejected the most
strident attacks on the comprehensive bill that we are considering. We
joined together in a bipartisan coalition in the Judiciary Committee
when we reported the Judiciary Committee bill. Democratic Senators were
ready to join together in April and supported the Republican leader's
motion that would have resulted in incorporating features from the
Hagel-Martinez bill, but Republicans balked at that time and continued
to filibuster action. Last week, Republicans joined with us to defend
the
[[Page S4878]]
core provisions of that bill, and we defeated efforts by Senators Kyl
and Cornyn to gut the guest worker provisions and to undermine the
pathway to earned citizenship. Instead, we adopted the Bingaman
amendment to cap the annual guest worker program at 200,000 and the
Obama amendment regarding prevailing wages in order to better protect
the opportunities and wages of American workers.
I spoke last week about the need to strengthen our border security
after more than 5 years of neglect and failure by the Bush-Cheney
administration. A recent report concluded that the number of people
apprehended at our borders for illegal entry fell 31 percent on
President Bush's watch, from a yearly average of 1.52 million between
1996 and 2000, to 1.05 million between 2001 and 2004. The number of
illegal immigrants apprehended while in the interior of the country
declined 36 percent, from a yearly average of roughly 40,000 between
1996 and 2000, to 25,901 between 2001 and 2004. Audits and fines
against employers of illegal immigrants have also fallen significantly
since President Bush took office. Given the vast increases in the
number of Border Patrol agents, the decline in enforcement can only be
explained by a failure of leadership.
The recent aggressive and well-publicized enforcement efforts to
detain illegal immigrants seem to be election-year posturing that does
little to improve the situation. We need comprehensive reform, backed
up by leadership committed to using the tools Congress provides, not to
piecemeal political stunts.
Once again the administration is turning to the fine men and women of
National Guard. After our intervention turned sour in Iraq, the
Pentagon turned to the Guard. After the government-wide failure in
responding to Hurricane Katrina, we turned to the Guard. Now, the
administration's longstanding lack of focus on our porous Southern
border and failure to develop a comprehensive immigration policy has
prompted the administration to turn once again to the Guard. I remain
puzzled that this administration, which seems so ready to take
advantage of the Guard, fights so vigorously against providing this
essential force with adequate equipment, a seat at the table in policy
debates, or even adequate health insurance for the men and women of the
Guard.
I have cautioned that any Guard units should operate under the
authority of State Governors. In addition, the Federal Government
should pick up the full costs of such a deployment. Those costs should
not be foisted onto the States and their already overtaxed Guard units.
Controlling our borders is a national responsibility, and it is
regrettable that so much of this duty has been punted to the States and
now to the Guard. The Guard is pitching in above and beyond, balancing
its already demanding responsibilities to the States, while sending
troops who have been deployed to Iraq. The Guard served admirably in
response to Hurricane Katrina when the Federal Government failed to
prepare or respond in a timely or sufficient manner. The Vermont Guard
and others have been contributing to our national security since the
immediate aftermath of 9/11. After 5 years of failing to utilize the
authority and funding Congress has provided to strengthen the Border
Patrol and our border security, the administration is, once again,
turning to the National Guard.
It was instructive that last week President Bush and congressional
Republicans staged a bill-signing for legislation that continues
billions of dollars of tax cuts for the wealthy. Instead of a budget
with robust and complete funding for our Border Patrol and border
security, the President has focused on providing tax cuts for the
wealthiest among us. Congress has had to step in time and again to
create new border agent positions and direct that they be filled.
Instead of urging his party to take early and decisive action to pass
comprehensive immigration reform, as he signaled he would in February
2001, the President began his second term campaigning to undercut the
protections of our Social Security system, and the American people
signaled their opposition to those undermining steps. While the
President talks about the importance of our first responders, he has
proposed 67 percent cuts in the grant program that supplies bulletproof
vests to police officers.
Five years of the Bush-Cheney administration's inaction and misplaced
priorities have done nothing to improve our immigration situation. The
Senate just passed an emergency supplemental appropriations bill that
allocated nearly $2 billion from military accounts to border security.
The Democratic leader had proposed that the funds not be taken from the
troops. But last week the President sent a request for diverting a like
amount of funding, intended for capital improvements for border
security, into operations and deployment of the National Guard. The
Republican chairman of the Senate Appropriations Subcommittee on
Homeland Security came to the Senate floor last week to give an
extraordinary speech in this regard.
In addition, last week the Senate adopted a billion-dollar amendment
to build fencing along the Southern border without saying how it would
be funded. We also adopted amendments by Senators Bingaman, Kerry, and
Nelson of Florida to strengthen our enforcement efforts.
Border security alone is not enough to solve our immigration
problems. We must pass a bill--and enact a law--that will not only
strengthen the security along our borders, but that will also encourage
millions of people to come out of the shadows. When this is
accomplished we will be more secure because we will know who is living
and working in the United States. We must encourage the undocumented to
come forward, undergo background checks, and pay taxes to earn a place
on the path to citizenship.
Last week we defeated an Ensign amendment to deny persons in legal
status the Social Security benefits to which they are fairly entitled.
I believe that most Americans will agree with that decision as fair and
just. It maintains the trust of the Social Security trust fund for
those workers who contribute to the fund.
The opponents of our bipartisan bill have made a number of assaults
on our comprehensive approach. Senators Kyl, Sessions, and Cornyn
opposed the Judiciary Committee bill. Senators Vitter, Ensign, and
Inhofe have been very active in the amendment process, as well. I hope
that they recognize how fairly they have been treated and the time they
have been given to argue their case against the bill and offer
amendments. We have adopted their amendments where possible. A narrowed
version of the Kyl-Cornyn amendment disqualifying some from seeking
legalization was adopted. The Sessions amendment on fencing was
adopted. The Vitter amendment on documents was adopted. The Ensign
amendment on the National Guard is being considered. Over my strong
objection and that of the Democratic leader, Senator Salazar and
others, a modified version of the Inhofe amendment designating English
as our national language was even adopted. This amendment is wrong and
has understandably provoked a reaction from the Latino community as
exemplified by the May 19 letter from the League of United Latin
American Citizens, the Mexican American Legal Defense and Educational
Fund, the National Association of Latino Elected Officials Educational
Fund, the National Council of La Raza, the National Puerto Rican
Coalition, and from a larger coalition of interested parties as
reflected in a May 19 letter from 96 national and local organizations.
I will ask copies of these two letters be printed in the Record
following my statement.
I trust that with so many of their amendments having been fairly
considered and some having been adopted, those in the opposition to
this measure will reevaluate their previous filibuster, that they will
vote for cloture, and, I will hope, support the compromise bill.
Immigration reform must be comprehensive if it is to lead to real
security and real reform. Enforcement-only measures may sound tough but
they are insufficient. The President has acknowledged this truth. Our
bipartisan support of the Senate bill is based on our shared
recognition of this fact. In these next few days, the Senate has an
opportunity, and a responsibility, to pass a bill that addresses our
broken system, with comprehensive immigration reform.
[[Page S4879]]
I ask unanimous consent that the aforementioned letters be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
May 19, 2006.
Dear Senator: On behalf of the undersigned national Latino
organizations, we are writing to express our grave concern at
the passage of the Inhofe Amendment to the immigration reform
bill currently under consideration in the Senate. We believe
this amendment jeopardizes the health and safety of all
Americans by undercutting federal, state, and local
government's capacity to provide vital information and
services to immigrants and Americans who are speakers of
other languages. This amendment has nothing to do with
immigration reform, and it does nothing to help immigrants
learn English. We believe it has no place in this bill and
urge you to reconsider it.
Upon review of the language of this amendment, we have
reached the conclusion that it would undercut policies that
facilitate communication with people who are speakers of
other languages. If this amendment becomes law, it would
jeopardize the delivery of public health and safety messages
that are intended to protect all Americans. The amendment
would make it more difficult for agencies like the Federal
Emergency Management Agency (FEMA) and the Centers for
Disease Control and Prevention (CDC) to respond to a flu
pandemic, another hurricane disaster like Katrina, or another
terrorist attack. If some portion of the community does not
receive information about immunizations or other health
threats in a language they can understand. then the entire
public is at risk.
We are also offended by the premise reflected in the
amendment and the debate which took place on the Senate floor
that the English language is somehow ``under attack'' in the
United States. Immigrants and all Americans understand that
English is our common language. If there is a challenge to
the integration of immigrants. it is that there are
insufficient English classes available to meet the demand
from immigrants who are eager to take them; the Inhofe
Amendment does not help a single immigrant learn English. We
stand ready to join in a debate on how to create new
resources and options to facilitate English classes and the
full integration of immigrants into our society. We deeply
regret that the Senate failed to choose this course of action
and instead voted on a counterproductive proposal that would
do real harm while doing nothing to promote English-language
acquisition.
The presence of this amendment in the immigration reform
bill calls into question our community's support of the
immigration reform package. We urge you in the strongest
possible terms to reconsider this damaging vote.
Sincerely,
Hector Flores, National President, League of United Latin
American Citizens (LULAC).
John Trasvina, Interim President and General Counsel,
Mexican American Legal Defense and Educational Fund (MALDEF).
Arturo Vargas, Executive Director, National Association of
Latino Elected Officials Educational Fund (NALEO).
Janet Murguia, President and CEO, National, Council of La
Raza (NCLR).
Manuel Mirabal, President and CEO, National Puerto Rican
Coalition (NPRC).
____
May 19, 2006.
Dear Senator: We, the undersigned 96 national and local
organizations, understand that the Senate voted yesterday to
approve an amendment offered by Senator Inhofe which affirms
English as the nation's national language and which could
undercut policies which facilitate communication with people
who are speakers of other languages. We are alarmed at this
development and urge you to reconsider this ill-advised vote.
There is no question that English is the common language of
this Nation; many of our organizaions offer English-language
classes and can testify to the fact that the demand for
instruction far exceeds the supply. If there is one single
issue that stands in the way of immigrants learning English,
it is a lack of resources to provide sufficient classes for
those seeking to take them. We are sorely disappointed that
the Senate debate on language focused on a proposal to limit
communication with immigrants rather than on increasing
access to programs that can actually assist immigrants as
they attempt to learn English while working, raising
families, and contributing in multiple ways to the vibrancy
of this country.
In addition, the Inhofe Amendment undermines the health and
safety of all Americans by undercutting federal, state, and
local government's capacity to provide vital information and
services to immigrants and Americans who are speakers of
other languages. It would jeopardize the delivery of public
health and safety messages that are intended to protect all
Americans. The amendment could make it more difficult for
agencies like the Federal Emergency Management Agency (FEMA)
and the Centers for Disease Control and Prevention (CDC) to
respond to a flu pandemic, another hurricane disaster like
Katrina, or another terrorist attack. If some portion of the
community does not receive information about immunizations or
other health threats in a language they understand, then the
entire public is at risk.
This amendment has nothing to do with immigration reform,
and it does nothing to help immigrants learn English. We
believe it has no place in this bill and urge you to
reconsider it.
Sincerely,
ACORN; American Immigration Lawyers Association; Americans
for Democratic Action, Inc.; Arab Community Center for
Economic and Social Services; Asian American Justice Center;
Asian American Institute; Asian and Pacific Islander American
Health Forum; Asian Pacific Islander Coalition of King
County; Asian Communities for Reproductive Justice; Asian Law
Alliance; Asian Law Caucus; Asian Pacific American Legal
Center of Southern California; ASPIRA; Bell Policy Center-
Denver; Break the Cycle; Carter and Alterman; CASA of
Maryland, Inc.; Center for Justice, Peace and the
Environment; Center for Law and Social Policy; Central
American Resource Center/CARECEN-L.A.; Centro de la
Comunidad, Inc.
Centro Hispano of Dane County; Chinese for Affirmative
Action/Center for Asian American Advocacy; CHIRLA; Coalition
of Limited English Speaking Elderly; Community Legal
Services, Inc.; Cross-Cultural Communications, LLC; Cuban
American National Council; District of Columbia's Fellowship
of Reconciliation; Escuela Tlatelolco Centro de Estudios;
Fuerza Latina; Greater New York Labor-Religion Coalition;
Immigrant Legal Resource Center; Immigration Law Office of
Kimberly Salinas; Institute of the Sisters of Mercy of the
Americas; Korean American Voters Alliance; Korean Resource
Center--Los Angeles; La Causa Inc.; La Clinica del Pueblo;
Latino and Latina Roundtable of the San Gabriel Valley and
Pomona Valley; Latino Leadership, Inc.;
Law Center For Families; Lawyers' Committee for Civil
Rights Under Law; League of United Latin American Citizens;
Legal Momentum; Luther Immigration and Refugee Service;
Mary's Center for Maternal and Child Care, Inc.; Mexican-
American Council; Migrant Legal Action Program; Minnesota
Immigrant Freedom Network; NAACP; National Advocacy Center of
the Sisters of the Good Shepherd; National Association of
Latino Elected Officials; National Association of Social
Workers; National Council for Community and Education
Partnerships; National Council of La Raza; National Health
Law Program; National Immigration Law Center; National
Korean American Service & Education Consortium; National
Latina Health Network National Organization for Women.
National Network for Arab American Communities; National
Network to End Domestic Violence; National Network to End
Violence Against Immigrant Women; National Partnership for
Women & Families; National Puerto Rican Coalition; New York
Asian Women's Center; New York Immigration Coalition; OCA
Greater Seattle Chapter; PeaceAction Montgomery; People for
the American Way; Presbyterian Church (USA); Resource Center
of the Americas; Rio Grande Centers, Inc.; SEIU Local 21--
Louisiana; SEIU Local 32BJ; Service Employees International
Union; Sexual Assault Services Organization; South Florida
Jobs with Justice; Southeast Asia Resource Action Center;
SSG/PALS for Health Program--SSG/ALAS para tu Salud.
Tahirih Justice Center; Teachers of English to Speakers of
Other Languages, Inc.; The American-Arab Anti-Discrimination
Committee; The California Pan-Ethnic Health Network; The Fair
Immigration Reform Movement; The Korean American Resource &
Cultural Center--Chicago; The Mexican American Legal Defense
and Educational Fund; The National Asian Pacific American
Women's Forum; The National Capital Immigration Coalition;
UFCW Region One; UNITE HERE; United Methodist Church, General
Board of Church and Society; WA State Coalition Against
Domestic Violence; Women's Committee of 100; YKASEC--
Empowering the Korean American Community--New York.
Mr. FRIST. Mr. President, we have had a good process to this point on
the immigration bill. I thank the bill managers for their hard work. We
are now, as I outlined this morning, in our final week prior to our
recess. We have a lot of legislative and executive items we need to
complete before that recess. Therefore, in a moment, I will be filing
cloture on the immigration bill to ensure we will complete action
before the Memorial Day recess, by the end of this week. In doing so I
hope we can still have a fair process and continue to work through
amendments.
There are a number of germane amendments that may be in order
postcloture. I hope Senators will have the opportunity to have votes on
them.
Having said that, we also have a lengthy list of important executive
nominations that I will be discussing with the Democratic leader. It is
my hope we can reach time agreements on these so we can schedule those
nominations for votes this week, as well.
One of the nominations we will consider is the nomination of Brett
Kavanaugh to be a U.S. circuit court judge. I understand we would not
be able to reach a time limit for that nomination for this week.
Therefore, it
[[Page S4880]]
is my intention to file cloture on that nomination, as well.
Cloture Motion
I now send a cloture motion to the desk on the comprehensive
immigration bill.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Calendar No.
414, S. 2611: a bill to provide for comprehensive immigration
reform and for other purposes.
William H. Frist, Arlen Specter, Larry Craig, Mel
Martinez, Orrin Hatch, Gordon Smith, John Warner, Pete
Domenici, George V. Voinovich, Ted Stevens, Craig
Thomas, Thad Cochran, Judd Gregg, Lindsey Graham, Norm
Coleman, Mitch McConnell, Lamar Alexander.
Mr. FRIST. I ask that the live quorum under rule XXII be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________