Congressional Record, Volume 152 Issue 65 (Tuesday, May 23, 2006)

[Congressional Record Volume 152, Number 65 (Tuesday, May 23, 2006)]
[Senate]
[Pages S4936-S4957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006--Continued

Mr. SPECTER. Mr. President, I ask unanimous consent that the Senator
from Rhode Island be given 10 minutes to speak on the bill.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Rhode Island is recognized.
Mr. REED. Mr. President, I rise to discuss S. 2611, the immigration
bill we are debating this week. It has been a difficult debate with
several difficult votes, but I believe this is one of the most
important pieces of legislation we will address this year.
The status of immigrants in this country, including legal aliens,
guest workers, and illegal aliens, has a profound impact on our
economy, our labor force, and the quality of life of all of the
Nation's residents. Clearly, our immigration system in terms of both
its punitive measures and its benefits offered is in need of overhaul.
The bill before us is not perfect, but it is a realistic approach to
dealing with an issue that is important to so many Americans.
Rather than measures that sound good but are ineffective, this
legislation is truly comprehensive immigration reform. It includes
tough enforcement provisions directed at those who seek to come here
illegally in the future and those who would hire illegal aliens. It
contains provisions for guest workers that balance the needs of
employers and the average American worker, and it offers a path to
legalization to those who entered this country illegally but who have
since been working hard and obeying the rules.
One of the most important sections of this bill relates to
enforcement. Clearly, the continuous flow of illegal immigrants across
our southern border in particular in search of higher paying jobs in
the United States strains our Nation's labor market and resources such
as hospitals and schools and law enforcement.
I note that while illegal immigration has been a significant problem
since the 1980s, the problems have only worsened in the past 6 years.
The 9/11 Commission gave the Bush administration a grade of C-minus on
border security. The administration has simply lost control of the
border. In the past decade, between 700,000 and 800,000 illegal
immigrants have arrived in this country annually. Over 70 percent of
these individuals are from Mexico or South America or from Central
America. During the same period from 1995 to 2005, the number of Border
Patrol agents increased from 4,876 to 11,106.
However, while the number of border agents increased dramatically
during the Bush administration, the number of apprehensions at the
border declined 31 percent from the last 4 years of the Clinton
administration. In addition, approximately one-half of the 11 million
illegal aliens in this country live in the 46 nonborder States, yet the
average apprehension rate during the

[[Page S4937]]

Bush administration is 25,901 individuals per year in interior States
away from the border.
But apprehending individuals illegally crossing the border only
partially solves the problem. The reason so many try to enter this
country is the search for jobs. We must work to cut off the supply of
jobs by making it too costly for employers to hire illegals. Again,
this administration has performed poorly in this area. In fiscal year
2004, the last year in which data is available, the Justice Department
only obtained 46 convictions for employer violations of illegal
immigrant employment laws. Audits of employers suspected of utilizing
labor have dropped from a peak of 8,000 per year under President
Clinton to less than 2,200 in fiscal year 2003 under President Bush.
The number of cases resulting in fines has declined from a peak of 900
under President Clinton to a total of 124 in fiscal year 2003. I would
therefore say that the first step to improve enforcement would be to
actually enforce the laws that are already on the books.
In addition, I believe the bill adds many useful enforcement
measures. I would like to highlight a few that I feel are most
significant.
I am particularly pleased with the focus on technology. This bill
requires the Department of Homeland Security to create a virtual fence
along the borders using unmanned aerial vehicles, cameras, sensors,
tethered aerostat radars, and other surveillance equipment. This bill
also requires the Department of Homeland Security to work with other
agencies such as the Department of Defense and the Federal Aviation
Administration to develop plans for sharing assets and implementing
surveillance strategies.
In addition, this bill includes provisions which replace and extend
existing fencing along the U.S.-Mexican border. While I realize that
building additional fences may be an attractive option, ultimately I
believe this approach would be expensive and ineffective. History has
proven that fences simply drive the illegal immigration flow to cross
by land through more inhospitable terrain, increasing the number of
deaths, or to enter by boat through our largely unprotected ports and
shores.
For example, once a triple fence was built in the San Diego area,
apprehensions dropped dramatically, but they increased 342 percent
during the same period in Tuscon, away from the fence. In addition,
during that period, it is estimated that 1,954 people died attempting
to cross the Sonoran Desert to reach Tucson.
I also believe that wall is a symbol of distrust which can only
weaken our relations, particularly with Mexico. It is a country we need
to cooperate with to reduce the flow of illegal aliens.
For these reasons, last week I voted against the Sessions amendment
to add 370 more miles of triple-layer fencing and 500 miles of vehicle
barriers along our southern border. I believe the funding could be
spent in more effective ways using new technologies.
This bill also improves enforcement of employers who might unlawfully
hire illegal aliens. First, it reduces the number of documents that can
be used to prove legal status. It also increases verification and
recordkeeping requirements. Most importantly, it establishes an
electronic employment verification system.
Under this program, employers must electronically verify new hires'
employment authorization within 3 days through the Social Security
Administration and the Department of Homeland Security databases. All
employers will have to participate in the system within the next 5
years. The bill also provides for punitive measures for employers who
do not participate. Such a system will help standardize enforcement,
making it more certain that employers hiring illegals will be found out
and therefore providing a deterrent effect.
I believe the measure I have discussed, along with others in the
bill, will help control the stream of illegal aliens entering this
country.
As we all are aware, one of the most controversial aspects of this
bill is that it provides a path to legalization for approximately 11
million illegal immigrants living in this country. I believe that while
this is a difficult decision, it is a necessary one.
Logic and history dictate that these individuals will certainly not
return to their native countries voluntarily. In addition, it is not
possible to apprehend and return all of them involuntarily. If
apprehensions continue at the present rate and new illegal immigration
ceases, it would still take 228 years for this country to be free of
illegal immigrants.
In the meantime, a significant segment of our population is living in
the shadows and in constant fear of being caught working for low wages,
often in terrible conditions, without health care, without a way to
redress any crimes against them. So many being forced to live this way
lowers the standard of living for all of us--by decreasing job
opportunities, lowering wages and the standards of working conditions
for the American workforce, and burdening our hospitals and law
enforcement agencies. It is not just a problem for the illegal
population, it is a problem for all of us. And it is time we address
it. This bill does address it, and I believe in a fair way. It is not
what opponents have called amnesty. These people are not illegal one
day and enjoying the rights and benefits of legal residency the next
without any sacrifice or work on their part. I would like to take a
moment to put these provisions I am about to discuss in a historical
context.
For the vast majority of our Nation's history, there were few, if
any, requirements for immigrants entering this country. The first
restrictive immigration laws, other than those racially based, were not
passed until the late 1880s and did not substantially change for
several decades, including during the height of European immigration in
the early 1900s. These laws excluded convicts, polygamists,
prostitutes, persons suffering from loathsome or contagious diseases,
and persons liable to become public charges. The 1917 literacy
requirement required individuals to be able to write out 40 words in
some language, not necessarily English.
These requirements, I would say, were not particularly strenuous. The
INS, once established in 1891, actually ran its own schools and
supplied textbooks to help immigrants learn English and civics. There
was no requirement to work or have marketable skills. For the most
part, if you arrived and were relatively healthy, you were admitted. So
by these standards, the requirements for earned adjustment are much
more significant.
First, in order to receive the most benefits from this bill, an
individual must prove he or she has already lived in this country for 5
years--time to become a part of the community and, it should be noted,
the residency requirement since 1802. These individuals will also have
to prove they worked 3 of the past 5 years and then must work
continuously for the next 6 years. They must pay all unpaid back income
taxes. They must demonstrate an understanding of the English language
and an understanding of the history and government of this country.
They must submit to fingerprinting and background checks and meet the
health and security requirements of every other alien entering the
country. Also, they are placed at the ``back of the line'' of
applications for adjustment, and, as we all know, that wait is several
years. They also have to pay a $2,000 fine as well as other processing
fees.
Those who have been in this country since January 7, 2004, and have
been employed since that time may apply for status called deferred
mandatory departure which would allow them to remain in this country
for an additional 3 years.

During that time, these individuals can apply for immigrant or
nonimmigrant status, but ultimately they must leave the country in
order to be admitted under that legal status. These hurdles are high
and a far cry from amnesty. They strike the proper balance in punishing
those who came here illegally and addressing the problems of some
illegal aliens in the country.
One of the original provisions of S. 2611 about which I had
significant reservations was the originally proposed H-2C guest worker
program. It would create a new visa category--providing visas for
hundreds of thousands of low-skilled workers each year. I understand
the argument that this new program is a way to regulate and hopefully
slow the flow of illegal aliens who will continue to cross our borders,
but I was

[[Page S4938]]

concerned about immediately implementing the program as it was
originally drafted.
I believe, however, that it has been vastly improved by the amendment
process here on the floor. Senators Dorgan and Stabenow were the first
to note the flaws in this program during debate on their amendment to
eliminate the program, an amendment which was tabled. Further
amendments, however, fix many of these flaws.
I wish to commend Senator Bingaman for his amendment, which passed,
that reduces the number of H-2C visas allotted annually to 200,000 and
eliminates the provision that would allow this number to automatically
increase in future years. This amendment provides some needed
limitation on the H-2C program until we see how all the provisions of
S. 2611 are working.
I also wish to commend Senator Obama for offering his amendment,
which was accepted and which provides adequate requirements for the
wages offered to H-2C visa workers. One of the greatest challenges of
allowing low-skilled workers in this country is balancing their needs
with the needs of the American labor force. Over the past 32 months,
real average hourly earnings have fallen by 1.2 percent. Without
adequate protections, an influx of workers who will accept lower wages
risks bringing down the wages and working conditions of everyone. I
also worry that companies will use this visa program as a recruiting
device for cheap labor rather than truly offering opportunities to
individuals who want a better life in the United States. Senator
Obama's amendment will work against those dangers, and I am pleased it
was included.
I must state that I continue to have one concern about this program--
the bilateral agreement. For our immigration system to truly work, it
is critical that the United States have cooperation regarding
enforcement with countries and citizens flocking to this country. I
was, therefore, pleased to find that S. 2611 requires the United States
to enter into bilateral agreements on numerous issues, including taking
back aliens removed from the United States, document forgery,
smuggling, human trafficking, and gang membership. However, this bill
does not state that these bilateral agreements must be completed before
the H-2C program is established. I believe a delay in concluding
bilateral agreements may undercut the purpose of the H-2C program.
I will continue to monitor the situation, and I believe it is an
issue Congress may have to address again in the near future.
Let me conclude very briefly by pointing out that there is a category
of residents here, the Liberian community, who have been here legally
since the late 1980s. For years, I have been endeavoring to provide
relief so that these individuals, who are important and decent members
of communities all across this country, could reach permanent status in
United States and aspire to citizenship. I am pleased to note that in
this bill, there is a means to do that. They can avail themselves of
the mechanism others will use for their pathway to citizenship. It is
long overdue.
I am disappointed that we could not specifically rectify this problem
years ago and recognize their contributions as legal residents here
under temporary protective status. But I am pleased that this
legislation will go a long way to give the Liberian community a pathway
to citizenship.
I am pleased to support this legislation. I commend the sponsors and
the chairman of the Judiciary Committee and Senator Kennedy for their
work.
I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. 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. SPECTER. Mr. President, I ask unanimous consent the following
first-degree amendments be in order: First, Senator Leahy on No. 4117,
with 20 minutes equally divided; Senator Grassley on title III, with 20
minutes for Senator Cornyn, 5 minutes for Senator Kennedy, 5 minutes
for Senator Obama, 5 minutes for Senator Kyl, and 10 minutes for
myself; Senator Lieberman, No. 4036, with the time agreement to be
determined; Senator Durbin on a humanitarian waiver amendment, with
time to be determined; Senator Kennedy, No. 4106, with the time
agreement to be decided.
I further ask, following those amendments, the next first-degree
amendments be in order: McConnell, 4085; Gregg, 4114; Hutchison, 4101;
Burns, 4124; Chambliss, 4084; Cornyn, 4097; Sessions, 4108; Kyl, 4134.
Provided further that it be in order to have first-degree amendments
offered by the Democratic leader or his designee between each of the
preceding Republican amendments.
I further ask unanimous consent that if cloture is invoked on the
bill and if any of the above listed amendments have not been offered
prior to the expiration of time under rule XXII, it be in order to call
that amendment prior to third reading of the bill. I further ask
consent that it be in order any time during the consideration of these
amendments to consider a managers' amendment which has been cleared by
both managers and notwithstanding the provisions of rule XXII.
I think I specified on Senator Leahy's amendment 4117 that the 20
minutes equally divided would be followed by a tabling motion.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Reserving the right to object, the Senator is referring to
the Leahy-Coleman-Kennedy-Sununu-Lieberman-Chafee amendment. He had not
mentioned a motion to table. He has a right to make a motion to table
at any time. On the Leahy-Coleman-Sununu-Chafee-et al. amendment, I
hope the distinguished chairman of the Judiciary Committee would at
least listen to this debate, of our efforts to protect these child
soldiers before the Senator moves to table.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I always listen with great care to
anything the very distinguished Senator from Vermont has to say, but in
order to get consent to this unanimous consent agreement, it was found
to be necessary to insert the language, which I did.
Mr. LEAHY. I have no objection to that. I just want to make my point.
We are trying to protect these women who have been raped and mutilated
and these children forced into involuntary servitude and others who
have stood up when the United States has asked them to help defend us.
Mr. SPECTER. Does that last comment come out of Senator Leahy's time?
Mr. LEAHY. That is when I reserved my right to object.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. We intend to notify the Senate what these Democratic
amendments will be. They will be interspersed as rapidly as we can. We
will do that, hopefully, before the end of the afternoon.
The PRESIDING OFFICER. The Senator from Vermont.

Amendment No. 4117

Mr. LEAHY. Mr. President, this bipartisan amendment I offer is on
behalf of the distinguished Presiding Officer, Senator Coleman, Senator
Kennedy, Senator Lieberman, Senator Chafee, Senator Harkin, Senator
Bingaman, and Senator Sununu.
We have had unintended consequences because of changes made in
immigration laws after September 11. Rightly so, they were modified to
protect national security, but we made them so broad that many people
have been prevented from entering our Nation, people who do us no harm.
The PATRIOT Act and the subsequent REAL ID Act modified definitions
of ``terrorist activity'' and ``material support'' in order to block
entry into the United States of individuals who assist terrorist
organizations. On its face, that made sense. No one wants terrorists or
their supporters to come here as refugees.
But the new law failed to recognize that many foreigners, including
children, are forced against their will to give food, shelter or other
assistance to terrorist groups.
It also defined ``terrorist organization'' so broadly that groups
that are

[[Page S4939]]

not engaged in activities against civilians--freedom fighters that the
U.S. Government once provided training and other material support to--
like the Montagnards in Vietnam--are covered by this broad definition.
Our amendment would bring American laws once again into line with
American values. It would give U.S. officials the ability to separate
the victims from the aggressors, and it will bring our immigration laws
into harmony with our government's foreign policy.
We can prevent the entry of those who would do America harm without
closing our borders to genuine refugees who urgently need our help.
Let me give a few examples. A 13-year-old girl is kidnapped, she is
forced to become a member of the Lord's Resistance Army in Uganda,
become a soldier, basically a sex slave of one of the commanders. She
is ineligible for admission as a refugee under current law. That is
wrong. In fact, it is immoral.
The same goes for people who provide material support to FARC, the
terrorist group in Colombia. The support they gave was digging graves
for other victims of the terrorists or giving them food, or otherwise
being shot themselves.
Or a Liberian woman who was kidnapped by a rebel group and forced to
serve as a sex slave. She was also forced to cook and do laundry for
the rebels, so she is considered to have given material support and she
is barred. That makes no sense.
People who are barred for supporting a terrorist organization--which
is broadly defined as any group of two or more people fighting a
government--includes refugees who our own government has long
supported.
The Vietnamese Montagnards, who supported the United States 35 years
ago, are barred. Members of the Karen Tribe fighting against the
Burmese junta are barred. Some anti-Castro Cubans are barred.
Afghans who fought with the Northern Alliance, and even the NATO
soldiers who trained them, are barred. We never intended to do that.
After 8 months of interagency inertia, the Secretary of State
recently issued a waiver for one group of Burmese refugees who live in
a refugee camp in Thailand. The use of the waiver authority was long
overdue and I welcomed the Secretary's action. But the waiver was too
limited, and will help only a minority of those deserving help, who are
waiting to be resettled here.
When the waiver was issued, the State Department asserted that it did
not plan to extend it to other groups in the near future.
Infighting between executive branch agencies is preventing people who
have been victimized in the most brutal ways from obtaining asylum.
The bipartisan amendment that we offer today modifies the law so that
before the overly broad definition of a terrorist organization is
applied to a group of two or more individuals, the Secretary of State
must determine that the group engages in terrorist activity which poses
a threat to U.S. nationals or the national security of the United
States.
That is the right balance. It protects U.S. security, and it provides
sanctuary for victims of repression.
Mr. President, how much time remains for the Senator from Vermont?
The PRESIDING OFFICER. The Senator has not yet called up the
amendment, so there is no time running.
Mr. LEAHY. That is not bad. Mr. President, I did not do that
intentionally, but I think it may be protecting the distinguished
Presiding Officer. I now call up amendment No. 4117.
The PRESIDING OFFICER. The clerk shall report the amendment.
The legislative clerk read as follows:

The Senator from Vermont [Mr. Leahy], for himself, Mr.
Coleman, Mr. Lieberman, Mr. Kennedy, Mr. Chafee, Mr. Harkin,
Mr. Bingaman, and Mr. Sununu, proposes an amendment numbered
4117.

The amendment is as follows:

(Purpose: To amend section 212 of the Immigration and Nationality Act
regarding restrictions on the admission of aliens)

On page 65, line 24, strike ``f'' and insert the following;
(f) Terrorist Organizations.--
(1) Definitions.--Section 212(a)(3)(B)(vi) (8 U.S.C.
1182(a)(3)(B)(vi)) is amended by striking subclause (III) and
inserting the following:
``(III) that is a group of two or more individuals, whether
organized or not, which engages in, or has a subgroup which
engages in, the activities described in subclauses (I)
through (VI) of clause (iv), and that the Secretary of State,
in consultation with or upon the request of the Attorney
General or the Secretary of Homeland Security, has determined
that these activities threaten the security of United States
nationals or the national security of the United States.
``(vii) Applicability.--Clause (iv)(VI) shall not apply
to--
``(I) any active or former member of the Armed Forces of
the United States with regard to activities undertaken in the
course of official military duties; or
``(II) any alien determined not to be a threat to the
security of United States nationals or the national security
of the United States and who is not otherwise inadmissible on
security related grounds under this subparagraph.''.
(2) Temporary admission of non-immigrants.--Section
212(d)(3)(B)(i) (8 U.S.C. 1182(d)(3)(B)(i)) is amended to
read as follows:
``(i) The Secretary of State, after consultation with the
Attorney General and the Secretary of Homeland Security, or
the Secretary of Homeland Security, after consultation with
the Secretary of State and the Attorney General, may conclude
in such Secretary's sole unreviewable discretion that
subclause (IV)(bb), (VI), or (VII) of subsection (a)(3)(B)(i)
shall not apply to an alien, that subsection
(a)(3)(B)(iv)(VI) shall not apply with respect to any
material support an alien afforded to an organization (or its
members) or individual that has engaged in a terrorist
activity, or that subsection (a)(3)(B)(vi)(III) shall not
apply to a group, or to a subgroup of such group, within the
scope of that subsection. The Secretary of State may not,
however, exercise discretion under this clause with respect
to an alien once removal proceedings against the alien are
instituted under section 240.''.
(g)

Mr. LEAHY. Mr. President, I ask unanimous consent that of the time
available to the Senator from Vermont, 4 minutes be reserved for the
distinguished Presiding Officer and he be allowed to use that time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I hope Senators will support this
amendment. It has strong bipartisan support. It speaks to the moral
goodness of our Nation. It ensures that the waiver in current law is
available to asylum seekers who were forced to join terrorist groups or
to provide material support against their will.
Completely innocent victims of ethnic and other forms of violence and
repression are being denied asylum for engaging in the very activity
they were forced to engage in, even though they pose no threat to U.S.
security--child soldiers, sex slaves of people who were among the worst
violators of human rights. Those victims are being excluded by our
great, good Nation.
They deserve our compassion. Let us bring our laws back in line with
our values.
I hope we will adopt this amendment.
Mr. President, I see the distinguished Senator from Minnesota on the
floor. I yield the floor.
The PRESIDING OFFICER (Mr. Allard). The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I rise in support of the amendment by
Senators Leahy, Coleman, Lieberman, Sununu, Kennedy, Bingaman, Chafee,
and Harkin.
The distinguished Senator from Vermont has laid out a general
principle we are dealing with here. I would like to make a couple
observations, if I may.
I would actually like to read from an article in the New York Times
of April 3--just a couple sentences.
In Sierra Leone there was a woman who was kept captive in her house
for 4 days by guerillas. The rebels raped her and her daughter and cut
them with machetes. Under America's Program for Refugees she would be
eligible to come to safety in the United States, but her application
for refugee status has been put on indefinite hold because American law
says she has provided material support to terrorists by giving them
shelter.
The same story has been repeated in Liberia. Women who have been
kidnapped, raped, forced to be sexual slaves, by the definition of
``material support,'' gave material support. The law makes no exception
for duress.
In the State of Minnesota, we have individuals who have worked in
groups that have been supported by the United States--Hmongs in
Southeast Asia resisted the Laos military; Liberians who

[[Page S4940]]

gave de minimis aid under duress; Burmese; Somalians; Cubans resisting
Castro; Colombians intimidated by the FARC guerrillas--and, again, they
are in a similar circumstance as we have talked about. But the way the
law is written, they would be denied the opportunity because of the
definition of both ``material support'' and ``terrorist group.''
I think some of my colleagues have concerns about this. I know they
have raised some questions. We have tried to look at those concerns.
One of them is: What is the reason for this? There is a waiver
provision in this legislation. The problem is that the labor provision
is extremely, extremely limited. I believe one of them was negotiated
for about 8 months. It does not cover asylum seekers in the U.S. who
have been subject to atrocities, who under duress were forced to give
minimal support but by definition of the law gave ``material support.''
So as a result--what I do not think was intentional--when we looked
at the REAL ID legislation, we revised some of this. I do not think
there was an intentional effort here. Sometimes, though, we suffer from
the law of unintended consequences. The unintended consequences of the
broad definition of ``terrorist organization'' and ``material support''
is to deny asylum, to deny entry to individuals who I think under all
circumstances across the board--Democrat and Republican, liberal and
conservative--it would be agreed that opportunity is the right thing to
do, such as for the Vietnamese Montagnards, the Karen National Front
fighting the Burmese junta, the Afghan Northern Alliance that has had
U.S. support.
So what we have here, we believe, is a technical problem that can be
corrected. If somebody is a member of a terrorist organization, they
are not going to be allowed entry into this country. But that is not
what this is about. That is not what we are dealing with here. I hope
my colleagues would take a close look at this amendment and understand
it is the right thing to do, the compassionate thing to do, the
reasonable thing to do, and one that we will be proud of doing when we
are finished.
There are a lot of folks who have fought for freedom in ways that we
believe they are freedom fighters, a lot of folks who have been subject
to great abuse, horrific abuse, and yet, somehow, the way things have
been defined or appear to be threats to this country, they do not have
the opportunity others have. They are not threats to our security. The
right thing to do is to support the Leahy-Coleman amendment.
With that, Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I ask unanimous consent to have printed in
the Record editorials from the New York Times and the Washington Post,
and an op-ed from the Los Angeles Times in support of this amendment.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, Apr. 3, 2006]

Terrorists or Victims?

In Sierra Leone there is a woman who was kept captive in
her house for four days by guerrillas. The rebels raped her
and her daughter and cut them with machetes. Under America's
program to resettle refugees, she would be eligible to come
to safety in the United States. But her application for
refuge has been put on indefinite hold--because American law
says that she provided ``material support'' to terrorists by
giving them shelter.
This law is keeping out of the United States several
thousand recognized refugees America had agreed in principle
to shelter. By any reasonable definition, they are victims,
not terrorists.
A Liberian woman was kidnapped by a guerrilla group and
forced to be a sexual slave for several weeks. She also had
to cook and do laundry. These services are now considered
material support to terrorists. In Colombia, the United
Nations will no longer ask the United States to admit dozens
of refugees who are clearly victims, since all their
predecessors have been rejected on material support grounds.
One is a woman who gave a glass of water to an armed
guerrilla who approached her house. Another is a young man
who was kidnapped by paramilitary members on a killing spree
and forced to dig graves alongside others. The men, many of
whom were shot when their work was finished, never knew if
one of the graves would become their own.
The law makes no exception for duress. It also treats any
group of two or more people fighting a government as
terrorists no matter how justified the cause, or how long ago
the struggle. So the United States has turned away Chin
refugees, for supporting an armed group fighting against the
Myanmar dictatorship, which has barred them from practicing
their religion. The United States has acknowledged that the
law would also bar Iraqis who helped American marines find
Jessica Lynch.
The law does not formally reject these applicants but
places them on indefinite hold. No one accused of material
support has ever had that hold lifted. The Department of
Homeland Security can supposedly waive the material support
provision but has never done so.
Clearly, Congress needs to add an exception for duress,
allow the secretary of state to designate armed movements as
nonterrorist, and allow supporters of legitimate groups to
gain refuge. These changes would pose no risk of admitting
terrorists to the United States and would keep America from
further victimizing those who have already suffered at the
hands of terrorist groups.
____

[From the Washington Post, Apr. 28, 2006]

How Not To Treat Friends

Congress tightened a law last year on refugee admissions in
order (it thought) to keep terrorists and their supporters
out of the country. The effect has been to bar friends and
allies.
One example: Many Vietnamese Montagnards fought alongside
U.S. forces during the Vietnam War and were then murderously
oppressed by the Vietnamese government. During the war, the
United States helped arm a Montagnard group called the United
Front for the Liberation of Oppressed Races, which continued
to struggle for autonomy after the war ended. This group
ceased to exist in 1992, when a band of nearly 400 fighters
disarmed and were resettled in North Carolina. Under
Congress's irrational new rules, however, the group has
become, legally speaking, a terrorist organization, and 11
Montagnards still stuck in Cambodia would be denied refugee
status because in the past they had offered the group
``material support.''
The Montagnards are not the law's only, or even principal,
victims. Thousands of ethnic victims of the Burmese military
regime, living in camps in Thailand, expected after long
waits to receive refugee status; now they're stuck in limbo.
So are large numbers of Colombians who were forced to support
the leftist rebels of the Revolutionary Armed Forces of
Colombia. Liberians, Somalis and anti-Castro Cuban dissidents
are also being branded terrorists and kept out.
Misguided law now prevents the admission of a member or
backer of any group of ``two or more individuals'' that
``engages in, or has a subgroup which engages in,''
activities as commonplace as using an ``explosive, firearm or
other weapon or dangerous device.'' The law treats a
Montagnard who once aided a U.S.-backed group no differently
from an al-Qaeda operative. The administration has the
authority to override this absurdity in certain instances,
though not all. But it has not used this limited power, and
even the need for a waiver is galling. America should not be
``forgiving'' people who did not, in fact, support terrorism.
These are victims--exactly the sort of people refugee and
asylum programs are meant to protect.
An amendment being offered to the supplemental
appropriations bill by Sens. Patrick J. Leahy (D-Vt.), Norm
Coleman (R-Minn.) and Lisa Murkowski (R-Alaska) would solve
the problem cleanly. It would clarify that only associates
and supporters of groups certified by the government as
terrorist organizations should be denied refugee status and
that those forced to aid terrorists are not themselves
terrorists. Congress did not mean to create this problem.
Fixing it should not be controversial.
____

[From the Washington Post, Apr. 17, 2006]

Fix This Law

If Congress doesn't quickly fix a major problem it created
in the law governing the admission of refugees, tens of
thousands of human rights victims will soon begin paying the
price. Congress, we assume, never meant to rewrite federal
law so that victims of totalitarian regimes and those forced
to serve human rights abusers are kept out of the United
States. Yet an accumulation of legal changes in recent years,
culminating in the Real ID Act last year, has done just
that--paralyzing America's traditionally generous refugee
admission program. The United States is supposed to admit up
to 70,000 refugees this year, though it probably will take
around 55,000 under the best of circumstances. Yet human
rights advocates estimate that between 10,000 and 20,000
people may be barred because of irrationally broad legal
definitions of terrorism, support for terrorism and terrorist
groups--definitions that make no distinction between this
country's enemies and those it ought to protect.
The law makes ineligible for admission members or
supporters of any group that contains ``two or more
individuals, whether organized or not, [which] engages in, or
has a subgroup which engages in'' activities as broad as
using an ``explosive, firearm or other weapon or dangerous
device.'' It makes no exception for people compelled to
support a group--for example, Colombian peasants forced to
aid the leftist rebels of the Revolutionary Armed Forces of
Colombia. Nor does

[[Page S4941]]

it exempt someone who took up arms--or sheltered or fed
someone who did--against the murderous Burmese government.
The result is that people around the world whose struggles
America backs find themselves ineligible for refugee status
here. The problem is most acute for Colombians and large
numbers of people of the Karen and Chin ethnic groups whom
the Burmese military junta has brutally repressed. But
Liberians, Somalis and Vietnamese Montagnards have also
gotten caught up in the problem. Even some Cuban dissidents
who once helped anti-Castro forces may be found ineligible.
The Bush administration has acknowledged that members of
Afghanistan's Northern Alliance would be barred under the law
as well; they, after all, fought alongside our troops.
The government has the power to waive the exclusion in some
cases, but it hasn't managed to use it yet. Its power is
limited, in any event; it can forgive people for their
support for terrorism but not for their membership in
terrorist groups. Even if it were broader, its categories are
all wrong. These people aren't terrorists and shouldn't be
labeled as such.
Fixing the law would not be hard. At a minimum, Congress
needs to make it clear that not every armed, non-state group
is a terrorist organization. Not all such groups attack
civilians; some are U.S. allies fighting legitimate military
struggles against evil governments. What's more, the law
needs to recognize that people forced to aid terrorists are
victims of terror, not terrorists themselves. Time is running
out. Congress must act.
____

[From the Los Angeles Times, Mar. 29, 2006]

Terrorist or Terrorized?

(By George Rupp)

In his second inaugural address, President Bush made a
stirring commitment to oppressed people yearning to be free:
``When you stand for your liberty, we will stand with you.''
For half a century, one of the best expressions of that
bond has been the federal Refugee Resettlement Program. This
State Department-administered program seeks to offer a safe
harbor to those fearing persecution by tyrannical
governments. But thousands of people whose lives are at risk
for standing up for freedom will this year be denied help
because of a Kafkaesque interpretation of who is deemed a
terrorist.
The laws governing eligibility for refugee status have long
denied it to anyone who commits a terrorist act or who
provides ``material support'' to terrorists. These laws were
strengthened after 9/11. The problem was created by recent
legislation that expanded the definition of terrorists. There
are real-life consequences from such myopic ``reform.''
In Colombia, for example, the leftist guerrilla group FARC
often kidnaps civilians and demands ransom from their
relatives. FARC also requires the payment of a ``war tax''
from Colombians in the regions it controls, upon threat of
serious harm. Nearly 2,000 Colombians who faced such
circumstances as paying a ransom or ``tax''--and who later
fled the country and were determined by the United Nations to
be refugees--have been denied U.S. resettlement on the basis
of the ``material support'' provision.
In Liberia, a female head of a household was referred to
the U.S. resettlement program by the Office of the United
Nations High Commissioner for Refugees as a person
particularly vulnerable to attack. Rebels had come to her
home, killed her father and beat and gang-raped her. The
rebels held her hostage in her own home and forced her to
wash their clothes. The woman escaped after several weeks and
made her way to a refugee camp. The Department of Homeland
Security has decided that because the rebels lived in her
house and she washed their clothes, she had provided
``material support'' to the rebels; the case has been placed
on hold.
A Sierra Leonean woman's house was attacked by rebels in
1992. A young family member was killed with machetes, another
minor was subjected to burns and the woman and her daughter
were raped. The rebels kept the family captive for days in
their own home. Homeland Security has placed the case on hold
for ``material support'' concerns because the family is
deemed to have provided housing to the rebels. Under this
interpretation, it does not matter whether the support
provided was given willingly or under duress.
Unfortunately, the actions of Homeland Security go far
beyond barring the affected refugees from entering the U.S.
They become permanently tainted by suspicions of terrorism
and find themselves shut out by other nations that resettle
refugees. And the governments now providing these people with
temporary asylum might even force them back to the nations
they fled.
U.S. policy toward authoritarian governments has been
turned on its head: The victims of terrorism are being denied
protection and sanctuary. The secretary of Homeland Security
has the authority to determine that the ``material support''
provision shall not apply to certain individuals or groups.
Yet the department has failed to issue guidance, causing mass
confusion and holding up decisions on refugee cases. Neither
the administration nor Congress seems able to fix the problem
for fear of being labeled weak on terrorism.
Yes, we must remain vigilant against terrorists. But in
order to implement Bush's commitment to stand with those
seeking liberty at great personal risk. Homeland Security
Secretary Michael Chertoff or Congress must rectify the
injustice that treats victims of coercion as supporters of
terrorism.

Mr. LEAHY. Mr. President, I ask unanimous consent to withhold the
remainder of our time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
The Senator from Illinois.
Who yields time?
Mr. LEAHY. Mr. President, how much time remains to this side, to the
Senator from Vermont?
The PRESIDING OFFICER. Four minutes 4 seconds.
Mr. LEAHY. Mr. President, I ask unanimous consent to yield to the
Senator from Illinois, with the understanding that 1 minute be retained
to the Senator from Vermont.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. OBAMA. Mr. President, if it would be acceptable, I ask unanimous
consent that I have a total of 5 minutes and that the 1 minute also be
retained by the Senator from Vermont.
The PRESIDING OFFICER. Is there objection?
Mr. KYL. Mr. President, reserving the right to object, if that
request is amended to the extent that the same additional amount of
time will be given to the Republican side, there will be no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. OBAMA. Thank you very much.
Mr. President, I come to the floor to briefly discuss amendment No.
4177. It pertains to title III and I believe will be called in short
order. It is a bipartisan effort to create the kind of employment
verification system that will ensure that American workers are
protected. It is an amendment that I worked on with Senator Grassley,
as well as Senator Kennedy. And as I indicated, it will be offered
shortly.
One of the central components of immigration reform is enforcement.
This bill contains a number of important provisions to beef up border
security. But that is not enough. Real enforcement also means drying up
the pool of jobs that encourages illegal immigration. That can only
happen if employers do not hire illegal workers. Unfortunately, our
current employer enforcement system does little to nothing to deter
illegal immigrants from finding work.
Just a few statistics: Overall, the number of workplace arrests of
illegal immigrants fell from 17,552 in 1997 to 451 in 2002, even as
illegal immigration grew during that time. Moreover, between 25 percent
to 40 percent of all undocumented immigrants are people who have
overstayed their visas. They are not folks who will be stopped by a
wall. Rather, the only way to effectively deter overstays is to reduce
their access to employment.
When Congress last passed an immigration bill in 1986, we did not
provide any meaningful way for employers to check legal eligibility to
work. Currently, employees can prove their legal status by showing a
variety of documents, and employers are supposed to record their
inspection of such documents by filling out an I-9 form for each
employee. As a consequence, the market for fraudulent documents--fake
Social Security cards, driver's licenses, birth certificates--has
exploded.
Unfortunately, with more than 100 million employees in more than 6
million workplaces, and only about 788 Wage and Hour investigators,
employer sanctions have basically become a nuisance requirement to
maintain records, not a serious risk of penalty. As a result, the
number of ``intent to fine'' notices issued to employers for hiring
undocumented workers dropped from 417 in 1999 to just 3 in 2004. I want
to repeat that. There were three employers in the entire United States
in 2004 who were fined for hiring undocumented workers.
Now, understandably, employers cannot always detect forged documents.
And employers who reject workers with questionable documents risk
employment discrimination suits. That is why we need a better
alternative. We need an electronic verification system that can
effectively detect the use of fraudulent documents, significantly
reduce the employment of illegal workers, and give employers the
confidence that their workforce is legal.

[[Page S4942]]

When Congress first considered comprehensive immigration reform in
April, the legislation on the floor addressed this problem by creating
a national employment eligibility verification system. Senators
Grassley, Kyl, and I all thought this was a good idea in theory, but we
had concerns with the design of the system.
Senators Grassley and Kyl proposed that a verification system be
implemented nationally within 18 months. Senators Kennedy and I
proposed that the system be phased in over 5 years but that it also
included additional accuracy and privacy standards, as well as strict
prohibitions on the use of the system to discriminate against legal
workers.
Over the past few weeks, we have been in discussions to try to
negotiate a compromise. I am pleased that we have reached an agreement
by which all employers would have to participate by 18 months after the
Department of Homeland Security receives the appropriations necessary
to receive the funds needed to fund the system. All new employees hired
would have to be run through a system. A series of privacy and accuracy
standards would protect citizens and legal immigrants from errors in
the system and breaches of private information. To make sure that
employers take the system seriously, we strengthen civil penalties for
employers who hire unauthorized workers, and we establish criminal
penalties for repeat violators.
I think we worked in a constructive, bipartisan manner to design an
employment verification system that is fair to legal workers and tough
on illegal workers. I think it is a good amendment. I urge my
colleagues to support it.
I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. SPECTER. Mr. President, I yield 5 minutes to Senator Kyl.
The PRESIDING OFFICER (Mr. Coleman). The Senator from Arizona.
Mr. KYL. Mr. President, I rise in strong opposition to the Leahy
amendment and just warn my colleagues that this is not a benign
amendment but is one of the most serious amendments that has been
proposed to this legislation and, if it is adopted, literally would
allow us to take somebody from the Taliban into the United States.
There is already a law that provides full waiver authority to the
Secretary of State to allow entry into this country for someone who
happened to be caught up in terrorist activity, albeit innocently--the
villager who is forced to give rice and water to a Taliban member.
There is nothing that prevents the Secretary of State from allowing
that person to come into this country.
This is literally a solution looking for a problem. And it is
pernicious because it literally allows entry into this country of
members of the Taliban because the Taliban is not a designated
terrorist organization or a person who assists an organization which
threatens other countries and peoples but not the United States.

Under the specific language of the amendment, there are three
specific exceptions. One is the Secretary of State, in consultation
with or upon the request of the Attorney General or Secretary of
Homeland Security, has determined that these activities threaten the
security of United States nationals or the national security of the
United States. So you can threaten the security of Israel or Sri Lanka
or India or some other country and support that terrorist organization
but be permitted to come into the United States. What sense does that
make?
There is no problem here that cannot be dealt with under existing
law. Show me where in existing law the Secretary of State does not have
complete and unfettered authority to waive the provisions of the law.
This is a law about terrorists, people who provide material support to
terrorist organizations not being allowed into the United States. I
know the good intentions of the sponsors of the amendment, but the fact
is, some villager who is forced to provide aid and comfort to a
terrorist organization can get entry into the United States without
this language which opens a huge loophole. Never in the past have we
said it is OK to let a member of the Taliban come in simply because the
Taliban is not a designated organization.
You might ask: Why, with all of the other terrorist organizations,
isn't the Taliban a designated organization? Of the 42 groups in the
world that have been certified by the Secretary of State, it is not.
The reason is because it is a serious matter to designate someone. For
example, once they are designated, then giving anything of value to
that group constitutes a Federal felony punishable by 15 years in
prison. And as a result, the failure to designate the Taliban would be
the type of group that if you give material support or aid to would
permit you entry into the United States. Because the Department of
State is conservative with these certifications and they have
substantial collateral consequences, not every group that would fall
into the category of a terrorist group is going to be designated, and
the Taliban is a perfect example.
I urge my colleagues, simply because your heart yearns to help
someone who might have been forced under a concept of duress to support
a terrorist organization or an organization like the Taliban that is
not designated as a terrorist organization, don't adopt this amendment
under the mistaken view that there is no other remedy. There is a
remedy. Clearly, under circumstances of duress, that remedy can be
invoked.
I urge my colleagues to reject this very dangerous amendment.
The PRESIDING OFFICER (Mr. Martinez). Who yields time?
Mr. SPECTER. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator has 7 minutes 52 seconds.
Mr. SPECTER. I yield myself 4 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, this is the third version of this
amendment that has been circulated on this bill. It may well be that an
earlier version of this basic idea would merit support from Senators,
but in its present form, it is not worthy of support because it
redefines what is material support. What constitutes material support
is a complex issue. Before the Senate passes on it, there ought to be
an analysis and hearings. The Judiciary Committee has had a whole
series of hearings but none on this subject.
The amendment further narrows the definition of what constitutes a
terrorist organization. There, again, it is a complicated subject. It
ought to be analyzed and considered at a hearing so that Senators have
a record basis for making a determination as to whether it ought to be
adopted. These are hardly the kinds of complex issues which can be
decided without a record, without a hearing, and without analysis.
The Senator from Arizona has cited the Taliban, but there are many
other citations that could be given. Kurdish terrorists in Turkey might
be admitted under this amendment because they pose no threat to the
United States of America. Basque terrorists in Spain might be admitted
because they pose no threat to the United States of America. Hamas,
which poses a deadly threat to Israel, might be admitted to the United
States because they arguably pose no threat on the face of it to our
national security. So we have an amendment which is very broad and
changes really fundamental definitions, in redefining material support.
In the collateral field of what is a material witness, the definition
takes enormous analysis, which I have seen in the criminal law. And to
narrow the definition of what is a terrorist organization, so that
organizations which would be considered terrorist without this
amendment but not terrorist under this amendment, is just not the sort
of thing that ought to be done by the U.S. Senate without a full
hearing, without analysis and a record basis for making such a broad,
important distinction.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. LEAHY. How much time remains.
The PRESIDING OFFICER. The Senator has 1 minute 12 seconds.
Mr. LEAHY. Mr. President, no one has any intention or desire to
permit terrorists into this country. It is setting up a straw man to
say something would let the Taliban in here. This amendment is not
about the Taliban, incidentally. Our government supported them very
strongly through our

[[Page S4943]]

CIA and others, as the press has reported, during the Soviet Union
days. But this amendment is not about terrorists. It is about genuine
refugees who have been victims of the very brutality that is now
preventing them from receiving asylum in this country.
I will give a practical example. We trained and supported the
Vietnamese Montagnards. We trained and equipped them. We asked them to
fight with us. Now we deny them asylum because they risked their lives
to do what we asked them to do. The Burmese, who are fighting a brutal
regime, our government supports them. Many are refugees. But even
though they have not been designated a foreign terrorist organization
and our government supports them, they are inadmissible. There are
cases of women and children threatened with torture and death and
forced to provide food, shelter or become the sex slaves of members of
terrorist groups. Our law bars them from asylum.
We are giving them discretion. I cannot believe that President Bush
or Secretary Rice is going to misuse this discretion to allow in
terrorists.
The PRESIDING OFFICER. Who yields time?
Mr. SPECTER. How much time do I have?
The PRESIDING OFFICER. The Senator has 4 minutes and 52 seconds.
Mr. SPECTER. Mr. President, I agree with Senator Leahy on one
important point. That is, he does not intend to offer an amendment to
let terrorists into the United States. But his amendment does. Senator
Leahy's intentions are pure because I know Senator Leahy. But the most
revealing part about Senator Leahy's last rebuttal was that he didn't
deny my basic contention that it redefines what is material support,
what constitutes material support, or the complexity of that issue.
Senator Leahy does not deny that it narrows the definition of what
constitutes a terrorist organization, nor does he deny that on the face
of his language, Kurdish terrorists who are terrorizing Turkey might
come into the United States or Basque terrorists who are terrorizing
Spain might come into the United States or the example of Hamas
terrorizing Israel might come into the United States. The fact is that
the existing law is adequate to keep out such individuals, and
supporters of this amendment have not met the burden of showing that
the law should be changed in the way they have proposed.
Secretary Rice recently exercised the waiver to pave the way for the
resettlement of 9,300 ethnic Karen refugees housed in a camp in
Thailand who backed the Karen National Union. So we have, under
existing law, methods for recognizing that some individuals may be
acting under duress, that they may not be terrorists. That is the kind
of an analysis which can best be made by the Secretary of State, as
opposed to the very different concept of litigating such matters. And
when you are dealing on the floor of the Senate with redefining
material support, redefining what is a terrorist organization, that
simply is not the way to legislate.
I have great respect for Senator Leahy. He and I have worked together
to craft this immigration reform bill. He and I have structured the
hearing list and could have had a hearing on this, had it been deemed
important and had it been deemed necessary to correct a major problem,
but it wasn't because existing law is satisfactory to address the
problem of individuals providing material support under duress. It is
difficult for me to oppose Senator Leahy, the ranking member of the
committee, with whom I have worked so closely. But I do not want to sow
confusion in this very important matter on the floor of the Senate by
redefining very basic concepts in a few minutes in a way which is not
intelligible.
How much time remains?
The PRESIDING OFFICER. The Senator has 1 minute 58 seconds.
Mr. SPECTER. I yield 1 minute to Senator Kyl.
Mr. KYL. I am not sure if the group that the chairman of the
Judiciary Committee referred to is the same one I will refer to here,
but to illustrate the fact that the Secretary of State has unfettered
authority to grant these waivers and has in fact done so in the past,
actually there was a large group of refugees from Burma who were
recently permitted asylum in the United States, even though they had
provided, allegedly, material support to terrorism. This is an
authority which can be exercised, which has been exercised.
Secondly, I urge my colleagues who are in support of this underlying
legislation on immigration reform, it is a controversial enough piece
of legislation for the Senate to consider. Amending it in the way that
the chairman has described, without the necessary careful consideration
of what the ramifications would be if this language is too broad, I
urge that this be done in another way and another time rather than in
this bill.
Mr. SPECTER. Mr. President, in my capacity as manager of the bill, it
is my intention to move next to the Grassley amendment under title III.
We will stack votes later because we have a whole series of amendments.
I think our time can be most effectively used. So at this time I move
to table the Leahy amendment and ask for the yeas and nays.
I withdraw the motion to table.
Mr. LEAHY. I was going to say, if the chairman will yield, that if we
move to table now, we would have to vote now. I would have no objection
if the chairman would give me some idea when those votes might be.
Mr. SPECTER. To respond to my colleague, I would say sometime around
the dinner hour when we see how the debate goes. We have a great many
amendments, and we know when we start to vote it takes much longer than
the designated time. I would say somewhere in the 6 o'clock range.
Mr. LEAHY. Mr. President, I would note to the distinguished chairman,
one of the reasons I agreed to this schedule, to come here and do this
debate now, was that there would be a vote now. I am going to be off
the Hill for a period of time around dinnertime, and I would like to be
here to vote on my own amendment. Could we agree on a time certain,
like 5:30, for the tabling motion on the Leahy-Coleman-Sununu
amendment?
Mr. SPECTER. Mr. President, I would be prepared to have the vote
occur as soon after 5:30 as we finish amendments. I think we may be
able to have two more amendments in the next hour and a half. I think
we can accommodate the request of the Senator from Vermont.
Mr. LEAHY. Mr. President, I won't make a unanimous consent request. I
will rely on the expertise and long experience of the chairman of the
committee to get that vote in before 5:30.
Mr. SPECTER. Mr. President, reserving the right to object, I must.
Mr. LEAHY. I am not making a unanimous consent request. I am saying I
am relying on the representations of the distinguished senior Senator
from Pennsylvania.
Mr. SPECTER. May I say, I think that is a wise reliance.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I believe the matter that is before the
Senate now is the title III provisions. Under our agreement, I think I
had 5 minutes to speak, am I correct?
The PRESIDING OFFICER. That amendment has not yet been formally
called up.
The PRESIDING OFFICER. Once the amendment is pending, the Senator has
5 minutes.
Mr. KENNEDY. I thank the Chair.

Amendment No. 4177

Mr. GRASSLEY. The amendment as to title III has been filed. I am
ready to take that up.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Iowa (Mr. Grassley) proposes an amendment
numbered 4177.

Mr. GRASSLEY. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. GRASSLEY. Mr. President, I ask unanimous consent that Senators
Obama, Baucus, and Kennedy be added as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, this amendment represents a bipartisan
effort to create an effective, workable

[[Page S4944]]

employment verification system. Without a workable verification system,
there is no point in having a bill dealing with immigration.
The amendment balances the needs of workers, employers, and
immigration enforcement. The amendment would replace the current paper
I-9 process with a new electronic verification system. This new system
would allow employers to verify the legal status of their workers
within 3 days of being hired. If the system cannot verify a worker's
employment authorization, the employer would be notified and the worker
must be discharged. If the system fails to operate as intended and a
legitimate worker is erroneously discharged, the worker could be
compensated by the Government for lost wages.
I understand that some of my colleagues believe that further changes
are needed with respect to this provision, which would allow a worker
who loses his job through no fault of his own to recover lost wages. I
will continue to work with them, as chairman of the Senate Finance
Committee with jurisdiction over the provisions in this amendment, on
this issue and the questions they have in subsequent conference with
the House of Representatives. I believe this amendment must move
forward, so I urge my colleagues to support it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I yield myself 4\1/2\ minutes.
Mr. President, as the Senator pointed out, this really represents a
very strong, bipartisan effort to make sure we get a key feature of
this immigration reform correct. I wish to express my personal
appreciation to those who have worked so hard and so well, including
Senators Grassley, Kyl, Obama, and Baucus and their staffs, who have
devoted an enormous amount of time to this issue. It is incredibly
important. We are talking about worksite enforcement, which we all
agree is a core goal and challenge. If that doesn't work, this
legislation, to a great extent, will be very ineffective. But what we
have worked out--the inclusion we have in this amendment--I think
effectively guarantees that it will work out.
The core goal is to establish the worksite enforcement system as
quickly as possible, which will succeed in preventing undocumented
immigrants from obtaining employment. I believe everybody agrees that
the heart of the system must be the new electronic verification system
that allows employers to compare a worker's name and identification
data to a central database that confirms or disconfirms the worker's
eligibility to work in the United States. Yet the Basic Pilot upon
which this electronic system will be based did not work well. It has
error rates of 10 to 15 percent. In a national system, that would mean
millions of Americans would be told every year they do not have the
right to work in this country. The GAO has told us that the error rate
could increase as the system is expanded to a national level.
So the core challenge is how to establish a universal verification
system as quickly as possible, while minimizing the risk that we end up
throwing millions of American workers out of work or putting thousands
of employers out of business. The stakes are high. While all our other
decisions have profound consequences for millions of immigrants, what
we do in title III will directly affect also the working conditions for
Americans, so it is enormously important to get it correct.
I am pleased to say that our negotiations with all of our colleagues
here produced an agreement we can be proud of. We agreed to an
ambitious schedule for implementation. Every employer in the country
will be required to participate in the system beginning 18 months after
funding for the system is appropriated. At the same time, we agreed on
a number of due process and procedural steps to minimize the risk that
U.S. citizens and legal immigrants are wrongly harmed by the system--
problems which workers and employers are equally eager to avoid.
Mr. President, we may have differences about this legislation and
about different provisions, but I think everybody agrees that if it
goes into effect, we want to make sure it is the best possible system
with the best possible protections. I think this amendment which has
been worked out with the leadership of my colleague and friends,
Senators Grassley, Baucus, Kyl, and Obama, is the best we could
possibly recommend. We urge the Senate to accept it.
I will withhold whatever time I have remaining.
The PRESIDING OFFICER. Who yields time?
The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, it is my understanding that I have 20
minutes.
The PRESIDING OFFICER. The Senator is correct.
Mr. CORNYN. Mr. President, I heard the distinguished Senator from
Massachusetts and the distinguished chairman of the Finance Committee,
Senator Grassley, talk about this amendment as if this were an agreed-
upon amendment. I understand there has been a lot of work put into this
amendment. I rise to voice objections to the amendment for a number of
reasons I would like to discuss.
This is critical. I agree with Senators Grassley and Kennedy that
this is the linchpin of this bill. If we don't get this right, then we
might as well pitch it in because the fact is that employment and the
prospects for employment are the magnets that attract illegal
immigrants into the country or people who come legally and overstay in
violation of our immigration laws.
I think it is important that the very Cabinet member--Secretary
Chertoff--who is going to be responsible for enforcing this immigration
reform has called this amendment a poison pill. He expressed concerns
about the fact that, as currently written--and I understand it is one
thing to pass a piece of legislation and expect to improve it in the
conference committee, but I think it is absolutely critical that our
colleagues understand what it is they are being asked to vote on. The
No. 1 concern I have is that it would create a carve-out, until such
time as whatever process is developed would produce a rate of 99-
percent accuracy, in terms of confirming eligibility of prospective
employees to work legally in the United States. A nonanswer would be
essentially treated as an approval, and that individual would be then
authorized to work permanently in the United States.
Once we pass this legislation, if it is passed, and it goes to
conference and the differences are worked out and it is signed by the
President, we all know this is merely an authorization. This is not an
appropriation. In other words, the money to pay for this, to make it
happen, is a matter of the appropriations process. That is not what we
are doing here. Once the money is appropriated, then we are going to
have to see the Department of Homeland Security issue a request for a
proposal and ask contractors to bid on creating the database and the
system whereby we can verify eligibility of prospective employees. So
what we are talking about is a system that is going to take months, if
not years, to implement. But even after it is implemented, until such
time as it has a 99-percent accuracy rate, essentially what we are
saying is the same old broken illegal immigration system of hiring
people who are not authorized to work in the United States is OK.
The second problem I point out with this amendment is it creates
liability on the part of the Federal Government. If, for example,
someone submits their credentials and they are refused a job because
they are not qualified to work in the United States, what this does is
create a litigation system that will prove a disincentive for employers
and the Department of Homeland Security to actually even check
someone's qualifications as to whether they can work legally in the
United States. This was the issue the Secretary of the Department of
Homeland Security, Mr. Chertoff, took great issue with. He says, as a
former judge, you are going to have determinations made, lawsuits
filed, and then you are going to have appeals, and perhaps these
appeals will take years to finally resolve, and the costs of hiring
lawyers and the costs to the Government are going to stack up.
What is the easiest way for the Government and that individual at the
Department of Homeland Security to avoid incurring those additional
costs? It is going to be to give the prospective

[[Page S4945]]

employee a pass and say: OK, you are fine. It proves a powerful
disincentive for checking out the eligibility of that prospective
employee.
Finally, this system would apply to future employees only. This
amendment would limit the period of time in which employers could
submit the credentials of this prospective employee to only 3 days. If,
for example, they overlooked the matter and didn't do it for 4 days,
they would be prohibited for all time from checking whether this
individual could legally work in the United States.
So I ask, why would we create a system that is designed to fail? That
is what this amendment, unfortunately, would do, notwithstanding the
hard work that has been put into it. I believe the placeholder in title
III is vastly superior to this so-called agreement, which is obviously
not agreed to--certainly not by the Cabinet member who is responsible
for the Department of Homeland Security and certainly not by this
Senator and others who have had a chance to look at this.
Each day, approximately 1,300 migrant workers enter the United States
to work illegally. The vast majority come here not to commit crimes or
cause harm but to work. They are looking only to provide for their
families, and we certainly all understand that. But they pay smugglers
thousands of dollars and risk their lives crossing the border. They
take this risk because they know that once they get into the United
States, it won't be difficult to find employers willing to hire them in
this black market of human labor. Until the Federal Government removes
the magnet of illegal employment, it will not regain control over our
broken immigration system.
Restricting employment of undocumented workers as a way to reduce
illegal immigration is not a new concept. In 1981, the bipartisan
Select Commission on Immigration and Refugee Policy recommended
legislation making it illegal to hire undocumented workers. In 1997,
the bipartisan U.S. Commission on Immigration Reform stated that
eliminating the employment magnet is the linchpin to a comprehensive
strategy to deter unlawful immigration. The U.S. Commission on
Immigration Reform went on to conclude that the most promising option
for verifying work authorization is a computerized registry based on
the Social Security number. Yet, 25 years later, after 25 years of
consensus, current employment verification laws are unworkable and
unenforceable.
Today the Federal law only requires that employers confirm that
employees produced paper documents. There is no general requirement
that employers ensure that the paper documents are, indeed, reliable or
otherwise take steps to combat fraud.
An employer--and this is the problem with the law as it currently
stands, not necessarily with employers who are not FBI agents and who
are not asking to conduct independent investigations or somehow a
forensic examination of the authenticity of these documents, but under
the law today an employer must review some combination of more than 20
different documents to determine whether a new worker is legal.
In 1996, Congress called for reduction in the number of documents,
but 10 years later, the Government has yet to implement those
regulations. As a result, document fraud and identity theft makes it
easy for unscrupulous employers to look the other way and hire
undocumented workers. Yet increasing penalties alone will not work
because ambiguities in the law prevent employers from knowing what
their obligations are with respect to their workforce.
Until there is a way for employers to truly know whether their
workforce is legal, it will be difficult for them to comply and
difficult for the Government to prosecute those who fail to comply. The
result is the Government has all but given up enforcing laws governing
the work site. The Government has all but given up.
In 2003, the Department of Homeland Security dedicated only 90 full-
time employees to work site enforcement--90, for a country of almost
300 million people.
In 2004, the Department of Homeland Security issued only three--yes,
three--notices of intent to fine employers for violating the work site
enforcement laws.
In 1992, by contrast, the Department issued more than 1,400 notices
of intent to fine. So we went from 1,400 notices of intent to fine for
cheating for hiring workers who could not legally work in 1992 to 3 in
2004. So over the past 12 years, those enforcement efforts have
declined at a rate of 99.8 percent.
In the absence of any enforcement whatsoever, many employers
flagrantly violate our laws. Just a few weeks ago, the Department of
Homeland Security arrested several managers at the largest pallet
services company in the United States. The Government has charged those
managers with conspiring to transport, harbor, and induce illegal
aliens to reside in the United States. On the day of their arrest, the
Department of Homeland Security also took into custody 1,187
undocumented workers.
According to the records, more than 50 percent of the employee
records had faulty Social Security numbers, and the Social Security
Administration had told the company more than a dozen times that they
had more than 1,000 employees without accurate Social Security numbers.
I wish I could say the allegations against this company are an
isolated event, but they are not. The truth is, many employers make no
effort whatsoever to comply with the law.
A recent Government Accountability Office report reviewed employer
tax filings for the years 1985 through 2000 and found that one employer
submitted a single Social Security number--a single Social Security
number--for more than 2,580 different employees in a single tax year.
Overall, 8,900 employers--just .2 percent of all employers--accounted
for more than 30 percent of the total number of incorrect Social
Security number submissions.
Get this, Mr. President: Of the 84.6 million records placed in the
Social Security earnings suspense fund for tax years 1985 to 2000,
about 9 million had Social Security numbers that consisted of nothing
but zeros. Obviously, the employer knew they were submitting a bogus
number, and 9 million submitted nothing but zeros. But in the absence
of any enforcement of the law, any incentive to clean up those numbers,
any incentive for employers to comply with the law, any infrastructure
that allows people to check to determine whether this is a person who
can legally work, this is the kind of fraud that occurs.
For 3.5 million records, employers used the same Social Security
number to report earnings for multiple workers in a single tax year.
The truth is, the Government is decades behind the private sector
when it comes to document integrity. Maybe what we ought to do is issue
a contract and outsource this to MasterCharge and Visa. Maybe they can
do a better job.
The fact is, this is embarrassing and intolerable and inexcusable
conduct on the part of the Federal Government. But there is also reason
for hope. There is a model that is already in place. Since 1996, the
Federal Government has run an electronic verification system called
Basic Pilot. Currently, about 6,000 employers participate in this
system. Members of Congress, for example, are required to use this
electronic verification system. And it works. That system should be
expanded, and that system should be enforced.
We simply must require electronic verification by all employers, not
just the ones covered by the current law or those who decide to do it
on a voluntary basis. Electronic verification has been tested for more
than 10 years, and an independent review of the program found that 96
percent of participating employers believed that the electronic
verification system is an effective tool for employment verification.
Reports have also shown that the Department of Homeland Security and
the Social Security Administration have made considerable progress in
improving the accuracy of data. According to a 2004 report, there is a
99.8-percent confirmation rate for U.S.-born employees.
I can assure you, Mr. President, and my colleagues that without work
site enforcement, we will be back here again in 10 years trying to
figure out what to do with the next wave of illegal immigrants. We
cannot afford piecemeal enforcement. We have to secure our border, we
have to work with

[[Page S4946]]

local and State law enforcement agencies to deal with enforcement in
the interior, and we have to have an ability to verify on an accurate
and expedited basis whether someone can work here legally in the United
States. We don't yet have that. This bill does not yet provide it.
My hope is that we will get serious, finally, once and for all, in
holding employers accountable, those who cheat and who provide that
magnet that attracts so many people to come into this country
illegally.
Mr. President, I reserve the remainder of my time. May I inquire how
much time is left?
The PRESIDING OFFICER. The Senator has 4 minutes remaining.
Mr. CORNYN. I thank the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I don't have time, so I ask unanimous
consent for 2 minutes to address this issue, particularly some of the
issues Senator Cornyn made.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, Senator Cornyn has been working very
faithfully with us on this issue, so I don't take exception to anything
he said except to clarify from my position what I want to accomplish.
First, I don't ever pretend to make perfect legislation. The English
language doesn't allow that, even if that is the good intent. We have
had several variations of the amendment that is before us and on which
we will be voting. I have always made an attempt to do things through
my committee in a bipartisan way. This is a bipartisan amendment. If
there is an issue with this amendment that it may not be the linchpin
for the verification we want, we are going to have an opportunity in
conference to fine-tune this amendment. I want the Senator from Texas
to know that I am open to that, and I hope--I haven't talked to my
cosponsors, but I hope the cosponsors are also open to it because
everybody indicated their intent to make sure the verification system
works.
With that in mind, I hope this amendment will be adopted so we can
move this process forward, and anything that needs to be done with this
amendment, including all of the objections that have been raised, will
be taken care of in conference.
I think we have a good compromise, so I am not starting out with the
idea that we have to correct it, but we are going to try to address all
these concerns because this is a very key part of any immigration bill
that we pass.
I yield the floor.
Mr. CORNYN. Mr. President, will the Senator from Iowa, before he
yields the floor, yield for a question?
Mr. GRASSLEY. If I have time, I will.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CORNYN. I will give him a minute of my time by unanimous consent,
if that will help.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I yield.
Mr. CORNYN. Mr. President, I guess the question I have for the
Senator is, if this amendment fails, there is a provision in the
underlying bill that would go to the conference committee; isn't that
correct?
Mr. GRASSLEY. That is correct.
Mr. CORNYN. I understand the obligation of the Senator from Iowa, as
chairman of the Finance Committee, to try to work on a bipartisan
basis, and I know he is committed to do that, and that is what this
amendment represents. But I want to make clear that in the absence of
this amendment being adopted, we still have a title III provision that
can go to conference committee and be the subject of further
negotiations.
Mr. GRASSLEY. Yes, if the Senator will allow me to continue to use
some of his time, I hope we would agree on this at least: If somebody
is not employed because of a mistake that the Federal Government made,
that we have a responsibility to make sure that person is made whole;
that nobody should lose a job or not get a job because of a mistake
made by some Federal bureaucrat. With that in mind, we ought to be able
to move forward.
I think I heard the Senator from Texas say that is his motivation,
that he would want to make sure nobody was harmed economically, not
getting a job because of a mistake that the Federal Government made.
Mr. CORNYN. Mr. President, I express my appreciation to Senator
Grassley for his good work in this area. I do agree with him that we
need to make sure, if there is a false positive--in other words, if
someone should not be excluded from employment but the system says they
should be and they are--that they ought to have some recourse.
My hope is that we would create a way for that record, if it is
erroneous, to be corrected without everybody hiring a lawyer and going
to their respective corners and then meeting in a courtroom and
litigating the issues that could perhaps be worked out without that
kind of experience.
I also want to make sure, as I know the Secretary of the Department
of Homeland Security told both Senator Grassley and myself, that we
don't unintentionally create some disincentive for people to hold
employers accountable for hiring people who aren't qualified to work. I
think we can certainly work to that end to try to balance it so it is
not a disincentive to work site verification and sanctions against
employers who cheat, but at the same time it is also fair to the
employees.
The other problem is, this amendment and what we have done so far on
this bill does not require the issuance of a secure Social Security
card or employment authorization document. We had numerous witnesses
testifying to the need for such a secure card. I believe employers
would welcome the ease of being able to rely on a single document that
could be literally swiped through a card reader, such as a debit card
or a credit card at a convenience store.
This bill, as amended by this amendment, would retain the complicated
document scheme that has led to widespread document fraud and identity
theft. And as I said, the Secretary of the Department of Homeland
Security has stated his objections to this amendment. I realize he is
not a Senator; he doesn't get to vote. But I do think we ought to
consult with and respect the views of those who are going to have the
responsibility to actually make this system work.

It concerns me that 20 years after the 1986 amnesty and the promise
of work site enforcement that the agency responsible for enforcing
those laws is telling Congress the new system would not work. My hope
is that we would find a way to make it work. There may be some--I am
not one of them--who don't want there to be enforcement, who don't want
the system to work.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CORNYN. My hope is that we would all work together in good faith
to make that happen. I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, we are looking for stacked votes at 5:30,
as mentioned during the discussion with Senator Leahy. If we cannot get
another debate completed on another amendment before 5:30, we will only
have the two votes. But if it is possible to have Senator Lieberman
come to the floor or Senator Durbin, it would be appreciated by the
managers to try to move the bill along. We now have 5 minutes for
Senator Kennedy, 5 minutes for Senator Obama, and 5 minutes for Senator
Kyl.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I have just conferred with the
distinguished Senator from Massachusetts, and we are going to yield all
time back on--we had time listed, as I announced a little while ago,
for 5 minutes for Senator Obama and 5 minutes for Senator Kyl, but
Senator Obama has spoken and Senator Kyl spoke on the preceding
amendment. Let's yield all time back.
Mr. KENNEDY. All time back.
Mr. SPECTER. And now we will proceed to Senator Kennedy's amendment
No. 4106.
I ask unanimous consent that we consider the Kennedy amendment

[[Page S4947]]

under a 30-minute time limit, equally divided, with no second-degree
amendments.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.

Amendment No. 4106

(Purpose: To enhance the enforcement of labor protections for the
United States workers and guest workers)

Mr. KENNEDY. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. Is the Senator offering an amendment?
Mr. KENNEDY. Yes. I call up amendment No. 4106 and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Massachusetts [Mr. Kennedy] proposes an
amendment numbered 4106.

Mr. KENNEDY. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is as printed in the Record of Monday, May 22, 2006,
under ``Text of Amendments.'')
Mr. KENNEDY. Mr. President, I yield myself 10 minutes.
Immigrant workers are among the most vulnerable in our Nation. While
performing society's most difficult and dangerous work, they face abuse
by employers, the denial of basic rights, and economic exploitation. In
negotiating the McCain-Kennedy bill, we took great care to include
protections that will halt these alarming trends and ensure fair wages
and working conditions for guest workers. We also took great care to
protect American workers and ensure that the guest worker program does
not diminish American labor standards.
However, history shows us that it is not enough to pass good labor
laws if we do not also make a strong commitment to enforcing these
laws. Beyond anything we have provided in the bill, the most important
step we could take to help American workers and immigrant workers alike
would be to improve our enforcement of the critical labor protections
that have been a part of U.S. law for decades.
We have laws on the books that protect the safety of American
workers. Yet each year in the United States over 5,700 workers are
killed on the job, and 4.3 million others have become ill or injured. I
must say that prior to the time we passed the OSHA law, that has more
than doubled. We reduced that by more than 50 percent in recent years
because of that legislation. That is 16 deaths and 12,000 injuries and
illnesses each day, today.
We have laws on the books that prohibit child labor. Yet there are
about 148,000 illegally employed children in the United States today.
We have laws on the books that give workers a voice on the job to
protect their fundamental right to organize and join a union. Yet each
year in the United States more than 20,000 workers are illegally
discriminated against for exercising these rights in the workplace.
These appalling statistics persist because our efforts to seek out
and punish employers who violate the law are laughably inadequate. We
find and address only a minuscule fraction of the number of violations
that occur each year. Even when we do try to enforce the law, the
penalties for breaking it are so low that employers treat them as a
minor cost of doing business. The average fine for a serious OSHA
violation last year was $883. The average fine for a child labor
violation was $718. And violation of workers' rights to organize are
remedied with back pay awards that come years too late. So such minor
sanctions provide no incentives for employers to comply with the law.
We need to provide real penalties, not slaps on the wrist, for the
employers that violate the Fair Labor Standards Act, the Occupational
Safety and Health Act, and the National Labor Relations Act.
The Kennedy amendment bolsters our enforcement of these important
laws. It updates the penalties under the Fair Labor Standards Act by
increasing the back pay remedy for willful violations and increasing
the maximum penalty for violations of the minimum wage, overtime, and
child labor protections. It would also update the OSHA civil penalties
which have been unchanged since 1990. It would provide a maximum
penalty of $50,000 when a worker's death is caused by willful
violations of the law, and make it a felony when an employer kills or
injures an employee through such willful violations.
But these increased fines and penalties, while important, are not
enough. We also need to take stronger steps to ensure that current laws
are being enforced and violations are being detected and remedied.
Vigilant enforcement is particularly important in occupations with
high percentages of immigrants who often see large numbers of
violations of health and safety and wage and hour laws. It can be
difficult to enforce the law in such occupations where workers often
don't know their rights or are afraid to report violations.
That is why we need targeted enforcement efforts to ensure that guest
workers' rights are protected and our high American labor standards are
being maintained for all workers in this country. The Kennedy amendment
will serve this important goal by requiring that 25 percent of all fees
collected under the guest worker program be dedicated to enhance
enforcement of the Fair Labor Standards Act, OSHA, and the labor
protections of the immigration bill in industries that have the highest
percentage of violations and the highest percentage of guest workers.
Another key step in protecting both American and immigrant workers is
to end the economic incentives that employers have under the current
law to abuse undocumented workers. The Supreme Court's decision in the
Hoffman Plastic case was a major setback for American workers. By
ruling that undocumented workers are not entitled to back pay when
their rights are violated, the Supreme Court left millions of workers
without meaningful recourse when they are fired for trying to organize
a union.

Unfortunately, this terrible decision has been applied to other labor
laws as well, making undocumented workers even more vulnerable to
exploitation because their employers can violate their rights with
relative impunity.
This decision also hurts American workers in several ways. It
encourages employers to hire undocumented workers by making them less
expensive and easier to intimidate. Businesses take advantage of the
situation by hiring undocumented workers and cutting legal corners.
Under the Hoffman case, unscrupulous employers are rewarded for this
unlawful behavior.
Congress should not allow employers to use immigration laws as a
shield for unlawful and abusive behavior. All workers should be
entitled to the protections of our labor laws regardless of their
immigration status.
Finally, our workplace standards will not be effective until workers
have the security, knowledge, and means to enforce them. The best way
to provide workers with these resources is to give them the ability to
freely and fairly choose a union. The right to organize and join a
union is a fundamental right recognized in the United Nations
Declaration of Human Rights. Yet the United States violates that
fundamental principle every day because our laws don't adequately
protect the right to organize. When workers attempt to form a union,
employers intimidate them, harass them, and retaliate against them.
Employees who stand up for their rights are fired.
The Kennedy amendment provides stronger protections that allow
workers to organize freely and require employers to negotiate fairly.
It allows workers to get court orders to stop employers from firing or
threatening union advocates and strengthens the penalties in current
law for mistreatment of workers who support a union.
It is long past time to give workers these basic protections.
Congress passed laws such as the Fair Labor Standards Act, the National
Labor Relations Act, and the Occupational Safety and Health Act in
order to establish the minimum standards necessary to preserve basic
human rights. But we must provide meaningful enforcement if we want
these to be meaningful laws. The Kennedy amendment ensures vigilant
enforcement of these critical labor protections to preserve the health,
the safety, and the well-being of all Americans. I hope it will be
included in the underlying legislation.

[[Page S4948]]

Mr. President, I yield the floor.
Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I have charts which are fairly indicative
of the points I made earlier.
Penalties for violating workers' rights are shamefully low. On the
first one, $718 is the average fine for child labor violations, and
148,000 children are being exploited in the labor force. There is very
little enforcement in the first place against these violations. And
even when there is one, the average fine is $718. When you have a
serious OSHA violation, the average fine is $883.
If you look at the far side, it is a $1,000 minimum fine for bribery
at a sporting event.
Here we are exploiting children, here we have the possibility of
serious injury to workers, and here we have the minimum fine for
bribery at a sporting event being higher.
It is illustrative of the inadequacy of current enforcement. More and
more immigrant workers are dying on the job.
This is a very interesting chart. It shows the total number of
immigrant workers who are dying on the job. These are significant
numbers. You see they are increasing every year. It is explainable.
This illustrates 2002, 2003, and 2004 for Hispanic fatalities and the
national fatality rate. We see what happens. Here are the Hispanic
fatalities.
Obviously, in the workplace the Spanish are being assigned to more
dangerous jobs. There is not enforcement to make sure they are being
protected on the jobs as they should be. As a result, they are paying
with their lives, in many of these instances, and the numbers are
continuing to go up.
We need strong enforcement. That is what our amendment does.
This chart shows that Fair Labor Standards Act enforcement has
declined while the workforce has grown. This is the increase in the
United States covered by the Fair Labor Standards Act. It has
increased. This is from 1975 to 2004--112 percent.
The next is the increase in U.S. workers covered by the Fair Labor
Standards Act; a 36 percent reduction in compliance actions being
completed.
We are not getting enforcement and protection. As all of us know, the
facts show and the GAO and other studies show when you have compliance
and when you have enforcement, the result is saving workers' lives--
Hispanic lives, migrant lives, American workers' lives.
We have to have justice in the workplace. We want to ensure that we
are going to upgrade as we are moving to a new phase--bringing new
people into the workplace. We want to upgrade the penalties to make
sure that we are going to have compliance. This is consistent certainly
with the other thrust of the legislation. It is important that workers
who are going to have protections that we believe are essential to
permit them to produce and to meet their responsibilities but to do it
in a climate that is as devoid of exploitation and danger as possible.
To do that we need compliance in enforcement. That is what this
amendment is really about.
I suggest the absence a quorum and retain the remainder of my time.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so
ordered.
Mr. SPECTER. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Three minutes and 32 seconds.
Mr. SPECTER. I ask unanimous consent that Senator Cornyn be
recognized for 7 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Texas.
Mr. CORNYN. Mr. President, I rise in opposition to amendment 4106 by
the distinguished Senator from Massachusetts. The amendment enhances
enforcement of labor protections for United States workers and guest
workers, it is argued, by increasing penalties in violation of the Fair
Labor Standards Act, increase civil and criminal penalties in violation
of the Occupational Safety and Health Act, strengthens enforcement of
violations for unfair labor practices, and designates how fees
collected under the H-2C program should be allocated, including 25
percent to the labor law enforcement fund, and it would, arguably,
provide protections for whistleblowers.
The main problem I have with the amendment is it is beyond the scope
of this bill and beyond the language included in the underlying
compromise which we have been told time and time again is fragile or
delicate, as those who have supported that compromise have sought to
defeat amendments such as this argue to change it.
This is obviously an amendment designed to increase the role of
government, a role that is not called for. The problem is, the irony
is, we may end up providing more protections for foreign workers than
are provided for American citizens who currently work and reside
legally in the United States. We ought to be cautious about doing that.
Certainly we all agree--not all of us, but I agree--we need to
provide some means for a guest worker or temporary worker program, and
that those foreign workers who are authorized to work legally in the
United States for a period of time should be given the protection of
the laws that generally apply to workers who already work legally in
the United States. But to increase penalties and so-called labor
protections to a degree that exceeds that provided to American workers,
to me, seems uncalled for.
I urge my colleagues to vote against amendment 4106.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, do I have any time remaining?
The PRESIDING OFFICER. The Senator has no time remaining.
Mr. SPECTER. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. 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. SPECTER. Mr. President, I ask unanimous consent we turn to the
Durbin amendment, with 20 minutes equally divided, with no second-
degree amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4142

Mr. DURBIN. Mr. President, I call up my amendment numbered 4142.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Illinois, [Mr. Durbin], proposes an
amendment numbered 4142.

Mr. DURBIN. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To authorize the waiver of certain grounds of inadmissibility
or removal where denial of admission or removal would result in
hardship for a spouse, parent, or child who is a citizen or permanent
resident alien)

On page 183, between lines 4 and 5, insert the following:

SEC. 235. WAIVER OF CERTAIN GROUNDS FOR INADMISSIBILITY OR
REMOVAL BASED ON HARDSHIP TO CITIZEN OR
PERMANENT RESIDENT ALIEN SPOUSE, PARENT, OR
CHILD.

(a) Waiver.--Notwithstanding any other provision of law and
except as provided in subsection (b), the Secretary of
Homeland Security (in the sole and unreviewable discretion of
the Secretary) or the Attorney General (in the sole and
unreviewable discretion of the Attorney General), as
applicable, may waive any ground of inadmissibility or
removal of an alien under, or arising from, an amendment made
by a provision of section 203, 208, 209, 214 or 222 of this
Act if the denial of admission or removal of such alien would
result in an extreme hardship to a spouse, parent, or child
of such alien who is a citizen or an alien lawfully admitted
for permanent residence.
(b) Exception for Terrorists.--No waiver may be made under
subsection (a) under or

[[Page S4949]]

arising from an amendment referred to in that subsection with
respect to a ground of inadmissability or removal under a
provision of law as follows:
(1) Section 212(a)(3) of the Immigration and Nationality
Act.
(2) Section 237(a)(4) of the Immigration and Nationality
Act.

Mr. DURBIN. Mr. President, this amendment would authorize the
Attorney General or the Secretary of Homeland Security to grant a
humanitarian waiver to an immigrant if deportation would create extreme
hardship for an immediate family member of the immigrant who is a U.S.
citizen or a legal permanent resident.
The Senate is considering a bill that takes a comprehensive approach
to solving the problem of illegal immigration. One aspect of the bill
is strengthening enforcement of our immigration laws. I support that.
We need to strengthen enforcement to restore integrity to our
immigration system. No one will believe we are serious about
immigration reform unless enforcement is a critical element.
But as we make our laws tougher, we must make certain we hold true to
American values. We should treat people fairly. We shouldn't separate
families if it would cause extreme hardship to American citizens.
I am concerned that some of the enforcement provisions in this bill
are so broad they may have unintended consequences. These provisions
have the potential to sweep up long-term legal permanent residents and
separate them from their American families.
Let me give one example which will surprise most Members of the
Senate. It illustrates the need for this amendment. Under current
immigration law, a legal permanent resident convicted of an
``aggravated felony'' is subject to mandatory detention and
deportation. The definition of aggravated felony in the Immigration and
Nationality Act is very broad. It includes nonviolent crimes such as
shoplifting. Section 203 of this bill would expand the definition of
aggravated felony even further. It would now be an aggravated felony to
aid or abet the commission of many nonviolent crimes.
Under this provision, a teenager who is a lawful permanent resident
and has lived in this country most of her life, could be subject to
mandatory detention and deportation if she drives a friend home from
the mall after the friend shoplifts a DVD.
Let's take another example. The bill greatly expands the definition
of document fraud to include potentially innocent activities such as
omitting immaterial information from an immigration application. The
bill would make such an omission a ground for deportation for the first
time, so we are creating a new avenue for deporting people who are
currently in the United States legally.
For example, a lawful permanent resident who inadvertently fails to
include information about her parent's birthplace and address on her
citizenship application could be convicted of document fraud and
deported.
My amendment would follow very closely what Senator Kyl and Senator
Cornyn accomplished last week. The Senate approved a Kyl-Cornyn
amendment that under very strict circumstances will allow a
humanitarian waiver for undocumented immigrants who apply for legal
status under this bill. We are following to the word the Kyl-Cornyn
amendment for the cases of legal immigrants who might be deportable as
a result of changes in the law made by this bill.
In my Chicago office, 80 percent of the casework relates to
immigration. I can tell you we encounter case after case that would
break your heart. In so many cases, people who have lived and worked in
the United States for a long period of time and have immediate family
members who are Americans are falling between the cracks of the law.
Most often, when we present these cases to Homeland Security they say
that they are powerless to do anything because our immigration laws
allow so little flexibility.
Every Member of the Senate has heard the pleas of a constituent or a
friend or someone who has faced this kind of a dilemma. In most cases,
we have no ability to help them.
My amendment would follow the Kyl-Cornyn amendment and create a very
limited waiver that would apply only in the most compelling cases--
where deportation of an immediate family member would cause extreme
hardship to an American citizen or legal permanent resident. The waiver
would not be automatic. The burden would fall on the immigrant to prove
that extreme hardship would occur if he or she were deported.
In every case, the Government has complete discretion to deny the
waiver. To quote my amendment, the decision to grant a waiver would be
in the ``sole and unreviewable discretion'' of the Attorney General or
Secretary of Homeland Security--the identical language used in the Kyl-
Cornyn amendment. This same strict standard was enacted last week by
the Senate in the Kyl-Cornyn amendment by a vote of 99 to 0.
The Kyl-Cornyn waiver would apply in cases where undocumented
immigrants are seeking legal status. The waiver in my amendment would
apply in cases where an immigrant who was previously in legal status is
subject to deportation only because of a change in the law made by this
bill.
Shouldn't we give the same chance to a legal immigrant facing
deportation that we give to an undocumented immigrant seeking legal
status? Deportation is very serious. For an immigrant, it means
permanent exile from family and home. And in some situations, it may
even be a matter of life and death.
I think it is appropriate that we build on the good work of Senators
Kyl and Cornyn. Their standard is tough, but it is fair, and it
certainly is not an easy standard to meet.
It is also important to note that the discretionary waiver in my
amendment is limited only to new penalties that are a consequence of
this bill. In other words, it only applies to deportations that are a
direct result of the changes in law made by this bill.
I should also point out that in no circumstances would this waiver
apply to cases involving suspected terrorists. The text of the
amendment makes that explicit.
We already give the Government broad discretion to apprehend, detain,
and deport undocumented immigrants. My amendment would give the
Government limited discretion--very limited discretion--to show mercy
in only the most compelling cases.
The supporters of this amendment include the U.S. Conference of
Catholic Bishops, Catholic Charities USA, Hebrew Immigrant Aid Society,
American Jewish Committee, League of United Latin American Citizens,
National Council of La Raza, Hispanic National Bar Association, Service
Employees International Union, National Immigration Forum, American
Immigration Lawyers Association, Asian American Justice Center, Mexican
American Legal Defense and Education Fund, Human Rights Watch, and
National Immigration Law Center.
Mr. President, I will close by saying this: most Members of the
Senate would be surprised to learn that under this bill a young person
who is guilty of aiding a shoplifter could be deported from the United
States. In light of this, you can see why there ought to be a very
limited option for the Secretary of Homeland Security and the Attorney
General to grant a humanitarian waiver to an immigrant if it would
cause extreme hardship to an immediate relative who is an American. We
followed the same standard in the Kyl-Cornyn amendment, which was
adopted earlier, and I hope my colleagues will support this amendment.
Mr. President, at this point, I withhold the remainder of my time and
yield to the chairman.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I yield 5 minutes to the distinguished
Senator from Texas.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I appreciate the opportunity to address
the amendment. I guess if imitation is the sincerest form of flattery,
I appreciate the Senator from Illinois suggesting that this follows the
course set by the earlier amendment that had to do, as it turns out,
with an entirely different class of individuals than the ones this
amendment addresses. So I do not believe it is a similar sort of
amendment.
For this reason, this morning, the Senate voted overwhelmingly to
reject the Feinstein amendment, which basically would have undone this
delicate compromise, this fragile compromise we have been told has to
be maintained

[[Page S4950]]

at all costs. That amendment would have simply opened the door to
amnesty for 12 million people who are here and not require anyone--no
matter how short a time they have been here--to do very much of
anything distinguishable, at least from the 1986 amnesty.
The difference between what the Senate voted for earlier, which the
Senator from Illinois references, is that those individuals had already
had their day in court and been ordered deported but had simply gone
underground. We recognized an extreme hardship exception there in an
effort to try to work across the aisle with the Senator from
Massachusetts and others, and the Senator from Arizona, Mr. McCain.
Those individuals, by the way, still had to meet the other criteria
under the bill, the so-called 2-year and 5-year standards.
The problem I have with this amendment is it has absolutely no
standards to guide the discretion. As it says in the amendment, the
``sole and unreviewable'' discretion of the Attorney General and the
``sole and unreviewable'' discretion of the Secretary of the Department
of Homeland Security. So we are left to wonder what standards would be
actually applied by either the Attorney General or the Secretary of the
Department of Homeland Security.
Also, I believe, if taken at face value, this amendment would result
in the waiver of grounds for inadmissibility for some 6 million
individuals--roughly half of those who are currently in the United
States--because, according to the Pew Hispanic Center, approximately 6
million people are currently in the country illegally who have an
American citizen child or American citizen spouse.
So I urge my colleagues to vote against the amendment, although I do
think this is one of those areas where the conference committee--after
the Senate passes its version of the bill and the House is working with
us to try to come up with a final form--certainly can build on and try
to work on to put some meat on the bone that is left undone by this
amendment.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. DURBIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Three minutes one second.
Mr. DURBIN. Mr. President, I would like to ask the Senator from Texas
to reconsider his position because we followed the language of his
amendment exactly in limiting this waiver to cases where deportation of
an immigrant would cause ``extreme hardship to a spouse, parent or
child'' of the immigrant who is an American citizen or lawful permanent
resident.
We also followed his language exactly in committing the decision
whether to grant a waiver to ``the sole and unreviewable discretion''
of the Attorney General or Homeland Security Secretary. In every case,
the government would have complete discretion to deny the waiver. No
court could review the denial of a waiver. That is an extremely high
standard. It is one that would apply only in very limited
circumstances.
And I say to the Senator, consider for a moment, if you would, that
the group of people that would be affected by the Kyl-Cornyn amendment
are those who are in the United States in undocumented status, who have
received final orders of deportation and have not left the United
States. I think the Senate took a wise, bipartisan course in saying
that even those people should be viewed in some circumstances as
deserving of another chance--but in very limited circumstances.
Now we are talking about a different class of people in my amendment.
These are people who are here legally. They are not undocumented. They
are legal permanent residents. Then, because of new changes in the law
that this bill would make--not the old standards but new standards in
the law--they might be subject to deportation. And we say, in those
cases, where you have people who are here legally, who may be subject
to deportation because of changes in the law made by this bill, we will
give to the Attorney General or the Secretary of Homeland Security
``sole and unreviewable'' discretion to decide whether there is a
humanitarian case for not deporting them. I think it is fair to treat
those who are currently here legally at least as well as those who are
currently not here legally.
The Senator's earlier amendment dealt with that class that is here
undocumented, and I supported him. I thought it was a very wise and
humane thing for him and Senator Kyl to do. But I would ask him to
consider. Shouldn't those who are here in legal permanent status
receive at least as much consideration, if this new law establishes
some means by which they could be deported, so in the case where there
is extreme hardship to their American immediate family members, the
Secretary would have this authority to grant them a waiver?
I say to the Senator, we use your identical language. And I did that
even though I might have wanted to put it in different words. I thought
to myself, let's stick to the standard that was established in the Kyl-
Cornyn amendment. So I hope the Senator from Texas will reconsider.
Mr. President, I reserve the remainder of my time, if the Senator has
any comments.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, how much time remains?
The PRESIDING OFFICER. Six minutes thirty-eight seconds.
Mr. SPECTER. Mr. President, I yield 2 minutes to Senator Cornyn.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I would just say that the way I read this
amendment--and I have only seen it in the last few minutes--it would
result in a waiver for approximately 6 million people illegally here in
the United States, as we speak.
Mr. DURBIN. Mr. President, will the Senator yield?
Mr. CORNYN. It would be based on the fact of alleged extreme hardship
through a spouse, parent, or child of such alien who is a citizen. The
fact is, a total of 6 million illegal aliens in the United States
currently, according to the Pew Hispanic Center, have an American
citizen child or spouse.
It would also, as I read this, purport to waive removal for
aggravated felons and would result in a green card for this class of
individuals, irrespective of payment of taxes, any requirement they
learn English, or paying a fine--which we have been told are the
essential ingredients of earned legalization.
So this is really a backdoor way of undermining the compromise we
have been told is very delicate and fragile and should not be messed
with. So I would think those Senators who believe that is actually true
would vote against the Durbin amendment because it does seek to
undermine that compromise.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Forty seconds.
Mr. DURBIN. Mr. President, may I say to the Senator from Texas,
``aggravated felony,'' as defined by this bill, could include aiding or
abetting shoplifting. So in that extraordinary case, where someone is a
legal permanent resident and is about to be deported because of changes
we are making in the law, this amendment would give one last chance to
that person to go to the Secretary of Homeland Security and say:
Please, don't ask me to leave the country because I drove the car when
my girlfriend shoplifted a DVD. It would cause extreme hardship to my
mother and father, who are American citizens. And the Secretary can
say: No. And it is not reviewable by a court. He will be deported. But
it at least leaves that last option. These are people who are currently
legally in the United States whom we are trying to protect.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, how much time remains?
The PRESIDING OFFICER. Five minutes.

Amendment No. 4106

Mr. SPECTER. Mr. President, I yield 3 minutes to the Senator from
Georgia to speak on the Kennedy amendment No. 4106.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I thank the distinguished chairman.
I rise to oppose the Kennedy amendment. I come to the floor as
chairman

[[Page S4951]]

of the subcommittee on occupational safety in the HELP Committee. I
come to the floor because the issue this amendment addresses has
nothing to do with immigration. It affects immigrants and
nonimmigrants. It affects employment. It amends the Occupational Safety
and Health Act, the National Labor Relations Act, and the Fair Labor
Standards Act. It is a massive increase in fines and penalties. It
changes many penalties from civil to criminal. There has not been a
single hearing or anything else.
The distinguished Senator from Massachusetts knows full well that we
have just completed 6 months of hard work on the Mine Safety Act, which
this Senate today will pass unanimously in response to the terrible
tragedy at the Sago mines. He knows how much time and effort went into
the hearings and the studies to see to it what OSHA needed to do and
what we needed to do. To summarily come to the floor on an immigration
bill and amend the OSHA laws and the Fair Labor Standards Act, the
National Labor Relations Act, to throw in massive penalties, massive
criminal fines--in fact, just to give you an example, it dramatically
increases criminal and civil penalties, with up to as much as 5 years
in jail for a workplace accident. Arbitrary provisions such as this
have no business on the floor of the Senate being tacked on to a bill
that deals with a major pressing problem in an entire other area.
Just to add the piece de resistance, this amendment, as I read it,
overturns the Supreme Court ruling in Hoffman Plastic Compounds, Inc.
v. the National Labor Relations Board. What that would, in effect, do
is force employers now to go pay back compensation to illegal
immigrants who were working in the workplace and put the Justice
Department as their designated attorney when they are not even here
legally in the first place. Now, if that action is the right thing to
do, it certainly needs to be done in civil debate and through the
committee process and not as a last-minute attachment to a bill that is
in itself controversial and in itself comprehensive.
So with all due respect to the distinguished Senator from
Massachusetts but with respect for the integrity of the committee
system, I submit this amendment should not be adopted, and I will
oppose it.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, with respect to the Kennedy amendment No.
4106, my record is plain that I believe in strict enforcement of the
Fair Labor Standards Act, strict enforcement of OSHA, and strengthening
enforcement against unfair labor practices. But this amendment
represents a sweeping change to the Fair Labor Standards Act and to
OSHA. In particular, it increases certain penalties five- and tenfold.
It increases civil fines under OSHA and criminal penalties under OSHA
without any record as to whether such increases are necessary. There
have been no hearings on this bill.
It would increase an OSHA criminal penalty from 6 months to 10 years
and in another place strike a 1-year penalty and insert a 10-year
penalty on a first conviction. Those are very significant changes. As
much as I favor strict enforcement of the Fair Labor Standards Act and
OSHA and strict enforcement against unfair labor practices, there has
been no hearing on this amendment, and, therefore, I reluctantly oppose
it.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I know we had this debate about an hour
ago. I ask unanimous consent for 1 minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, it is true that we have increased
significantly and dramatically the penalties in the Mine Safety Act
because they were a slap on the wrist. They didn't even rise to the
level of a business penalty. All we are doing basically is changing the
maximum penalties, when we see the loss of life and the most grievous
kinds of injuries to American workers. That is what we are doing. They
haven't been raised since 1990, over 16 years. Why shouldn't we be able
to at least take that to conference? That is all this is doing, trying
to make sure that all the laws to protect American workers and to
protect guest workers are going to be fairly and equitably enforced.
I thank the chairman.
Mr. SPECTER. Mr. President, Senator Kyl was unnecessarily detained
and did not have his time on Grassley No. 4177. I ask unanimous consent
for 1 minute for Senator Kyl.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, I will be voting against the Grassley
amendment. I compliment the chairman of the Judiciary Committee and the
chairman of the Finance Committee, Senator Grassley, and his staff, for
working hard at producing what is a big step forward in ensuring that
we can determine the eligibility of workers to be hired. Unfortunately,
it doesn't complete the job. That is such a critical component of this
legislation that I cannot support it until additional changes are made.
My vote is not intended to be pejorative in any way toward those who
worked very hard to put this together, and many of my ideas are in that
amendment. I appreciate their effort. But there is still a long way to
go, and, in some respects, this is a metaphor for a lot of this bill.
There has been a lot of progress made, but there is a long way to go.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, we are now ready to vote on four
amendments. I ask unanimous consent that there be 2 minutes of debate
equally divided before each amendment is called.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. I further ask unanimous consent that the first rollcall
vote on Leahy No. 4117 be the regular 15 minutes and that each
succeeding of the stacked votes be 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. I want to put my colleagues on notice that we will
strictly enforce this time because we have four votes, and it is going
to take quite some time. There is more business to be conducted after
the votes are concluded.
I further ask unanimous consent that when the Senate resumes
consideration of the bill at 8:30 a.m. tomorrow morning, Senator
McConnell be recognized to offer his amendment No. 4085; provided
further that the time until 9:30 be equally divided between Senator
McConnell and Senator Reid or his designee; provided further that at
9:30, the Senate proceed to a vote in relation to the McConnell
amendment with no second degree in order prior to the vote; I ask
consent that following that vote, the Senate proceed to a vote on
invoking cloture; further that there be 2 minutes for debate equally
divided between the stacked votes after the first vote and the time
from 9:20 to 9:30 on Wednesday be equally divided between Senators Dodd
and McConnell. The order of the votes will be Leahy No. 4117, Grassley
No. 4177, Kennedy No. 4106, and Durbin No. 4142.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the Leahy amendment No. 4117.
Mr. LEAHY. Mr. President, I understand the distinguished Senator from
Pennsylvania is going to speak to correct one part of the record, but
both Senator Coleman and I want to make sure the record is correct and
Senators know what they are voting on. Some Senators, in speaking in
opposition to the Leahy-Coleman amendment, suggested that members of
Hamas, the Kurdish PKK, or the Basque separatist group might obtain
refugee status in the U.S. because those terrorists organizations do
not specifically target the United States. That is totally incorrect.
They are not allowed in with this. Hamas, the Basque separatists, the
Kurdish PKK are already listed as terrorist organizations by our
government. Members of the Taliban are also barred. These individuals
could not obtain entry with this amendment. It was wrong to
misrepresent the amendment that way. It is inflammatory to say the
Leahy-Coleman amendment would aid members and supporters of designated
terrorist organizations. It does not. It does not. It does not. This
amendment in no way changes current law as suggested, but it would do
something for those people who have been raped, tortured, or forced
into helping terrorist organizations.

[[Page S4952]]

The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I have opposed the Leahy amendment
because it redefines what constitutes material support for a terrorist.
It redefines and narrows the definition of what is a terrorist
organization. Those are complex subjects. There could have been
hearings in the Judiciary Committee where the Senator from Vermont is
the ranking member. I was wrong about Hamas when I made that
representation. But as to the Kurdish terrorists, we did not identify
PKK but other Kurdish terrorists in Turkey. I did not refer to the
Basque ETA but to other Basque terrorists in Spain. When you have these
far-reaching changes, there should have been hearings. There is
adequate recourse under existing law for the Secretary of State to
grant waivers for those providing material support to terrorist
organizations, as she did recently for 9,300 ethnic Karen refugees to
come out of Thailand.
I move to table the Leahy amendment and 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. The clerk will call the
roll.
The bill clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) is necessarily absent.
The PRESIDING OFFICER (Mr. Chambliss). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 79, nays 19, as follows:

[Rollcall Vote No. 139 Leg.]

YEAS--79

Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bond
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chambliss
Clinton
Coburn
Cochran
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kohl
Kyl
Landrieu
Lautenberg
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden

NAYS--19

Akaka
Bingaman
Chafee
Coleman
Feingold
Harkin
Inouye
Jeffords
Kennedy
Kerry
Leahy
Levin
Lieberman
Obama
Reed
Reid
Salazar
Sarbanes
Sununu

NOT VOTING--2

Enzi
Rockefeller

The motion was agreed to.
Mr. BOND. I move to table the vote.
Mr. ENSIGN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KENNEDY. Mr. President, I understand we are going to have another
rollcall vote.
Mr. LEAHY. Parliamentary inquiry: Are these 10-minute rollcall votes
now?
The PRESIDING OFFICER. The next votes are 10-minute rollcall votes.
Mr. LEAHY. We should be able to finish in 40 or 45 minutes?
The PRESIDING OFFICER. That is correct.

Amendment No. 4177

The PRESIDING OFFICER. There is now 2 minutes equally divided on the
Grassley amendment. The Senator from Iowa is recognized.
Mr. GRASSLEY. The Immigration Reform and Control Act of 1986 made it
unlawful for employers to knowingly hire or employ someone who is not
authorized to work in the United States; and it required employers to
check the identity and work authorization documents of all new
employees.
The current employment verification process relies on a paper form
known as the ``I-9.'' To complete this form, employers must examine one
or more documents from a list of nearly 30 different documents. If the
document provided by the employee appears to be genuine, the employer
has met his obligation.
The employer is not allowed to solicit additional documents and the
employee is not required to produce additional documents. In fact, an
employer's request for more or different documents, or a refusal to
honor documents that appear to be genuine, can potentially be treated
as an unfair immigration-related employment practice. This obviously
puts employers in a very difficult situation. If he accepts the
document, he may be hiring an illegal worker. If he does not accept the
document, he may be sued for employment discrimination.
The easy availability of counterfeit documents has made a mockery of
the current I-9 process. Fake documents are produced by the millions
and can be obtained easily and cheaply. Thus, the current system
benefits unscrupulous employers who do not mind hiring illegal aliens
but want to show that they have met their legal requirements, and it
harms employers who don't want to hire illegal aliens but have no
choice but to accept documents they may suspect of being counterfeit.
The failure of the current process is evidenced by the millions of
``no match'' letters generated each year by the Social Security
Administration. Each year, the Social Security Administration processes
about 250 million W-2s. It is able to match more than 95 percent of
these. However, nearly 9 million W-2s contain names and social security
numbers that do not match the Social Security Administration's records.
It is widely believed that many, if not most, of these no matches are
due to the employment of illegal aliens.
This problem must be addressed. We cannot control our boarders, or
create an enforceable guest worker program, until we have a reliable
and secure employment verification system.
I supported the creation of the Basic Pilot program in 1996 which
allows employers to voluntarily check the employment status of their
new employees. At the time, it was a pilot in 6 states. In 2003, I
authored the law that provided all 50 states the option to use the
Basic Pilot program. Unfortunately, those who are most likely to hire
illegal workers are the least likely to use this system.
My amendment today would create a new worker verification system for
employers to use to determine if their workers are eligible to work in
the United States. While this new system is based on the Basic Pilot,
there are a number of important differences. The new system will be
mandatory for all employers who hire any new employees beginning 18
months after Congress appropriates the funds needed to implement the
system.
The system can be compared to a ``red light,'' ``green light,'' and
``yellow light'' verification. The employer, in the course of hiring a
new worker, must submit certain information within 3 days of the
hiring. The Secretary of Homeland Security, with the assistance of the
Commissioner of Social Security, will turn around, in less than 10
days, and provide a positive confirmation or a tentative non-
confirmation--that is a ``green light'' or a ``yellow light.'' If DHS
provides a tentative non-confirmation--a ``yellow light''--then the
burden will be on the worker to resolve the matter. If the worker
contests the non-confirmation, DHS will have 30 days to provide a final
response to the employer. If the final response is negative--a ``red
light''--the employer is required to discharge the worker.
The new system would be Internet based. However, the Secretary will
also provide access through a toll-free telephone number so that small,
rural, and underserved areas can use the system as well. There are a
number of important worker protections built into this new system.
During the initial implementation of the system, if DHS cannot resolve
their worker's status within 30 days, DHS will grant an automatic
default confirmation. If the worker loses his job through no fault of
his own due to a mistake by the system, he can seek administrative and
judicial review to recover lost wages. The system would also give
workers the ability to verify their own information prior to obtaining
or changing

[[Page S4953]]

jobs. This would give workers the ability to know their status before
applying for a job and give them the opportunity to correct any
mistakes.
Finally, until the Secretary of Homeland Security certifies that the
system is able to correctly resolve 99 percent of all the cases
involving eligible workers within 30 days, then the automatic default
confirmation will remain in effect. This safeguard is designed to
ensure that no eligible worker is denied a job due to bureaucratic
delays or excessive workloads at DHS or SSA. Once the system is
certified by the secretary, the automatic default confirmation is
changed to an automatic default non-confirmation. There have been some
concerns raised that once illegal workers are no longer able to use
phony IDs and fake social security cards, they will attempt to steal
someone else's identity. We have addressed this problem by allowing
workers--on a purely voluntary basis--to put a ``block'' on their own
SSN. This would work much like a ``credit freeze'' or the ``do not
call'' list that already exists under current law.
A worker could block his own number to prevent someone else from
using it and then unblock his number whenever he needed to obtain or
change jobs. The amendment also provides important protections for
employers who use the system. They will no longer be forced to choose
between questionable documents or an employment discrimination lawsuit.
They will be able to rely on the information provided by the system.
They will be protected from liability if they fire a worker based on
that information. Finally, the amendment provides safeguards to prevent
the unauthorized disclosure of information contained in the system.
Individuals and employers will not have direct access to Federal
databases. Rather, they will submit information and only receive back a
confirmation or non-confirmation of that information. The amendment
also provides that the information in the system cannot be used for any
purpose other than provided by law.
With respect to information sharing, the amendment contains important
language regarding the use of tax return information.
The protection of taxpayer information is a cornerstone of our
voluntary tax system. These protections are found in section 6103 of
the tax code and are designed to strike the balance between taxpayer
privacy and legitimate law enforcement. Several members raised this
issue during the Judiciary Committee markup. I urged my colleagues to
defer any action in this area until the members of the Finance
Committee had an opportunity to review this issue.
Some of the proposals in the Judiciary Committee were very broad. In
this amendment, we have taken a more focused approach. We identified
the specific information that would be needed to identify potentially
illegal workers and crafted an amendment to 6103 that permits such use
while maintaining all of the privacy protections afforded by 6103.
Specifically, we allow the Social Security Administration to share
taxpayer identity information with DSH for the next 3 years. The
information that can be shared would be for those employers who had
more than 100 employees with names and numbers that do not match, and
employers who used the same social security number for more than 10
employees.
In addition, DHS would be able to request that SSA provide
information to identify employers who are not participating in the
system, and employers who are not verifying all of their new employees.
This information sharing would sunset after 3 years unless Congress
extends this authority. We will closely monitor the use of this
authority to determine if it should be extended.
Relying on Social Security records to help enforce immigration law
also raises a critical issue with respect to the Social Security
Administration's ability to perform its primary functions. This
amendment addresses this concern by requiring DHS to reimburse SSA in
advance for the cost of any data it obtains.
Let me again point out that--unlike the House bill--this amendment
only applies to new hires, with some limited exceptions under the
discretionary authority of DHS.
However, I would note that despite the high turnover rate seen among
some workers, many workers are employed by the same employer for many
years.
According to the Bureau of Labor Statistics, nearly one-half of all
workers have been employed by the same employer for 5 or more years.
More than one-quarter have been employed by the same employer for 10 or
more years.
Without verification for all employees, many illegal workers might
never be detected under a system that only checks new hires.
I understand that a requirement to verify all employees is viewed as
overly burdensome. But, as mentioned earlier, the Social Security
Administration processes roughly 250 million W-2s each and every year
and is able to verify more than 95 percent. It might turn out that the
additional burden of checking everyone would be very minimal. I suspect
we will have to revisit this issue in conference with the House--if we
make it that far.
In conclusion, let me urge my colleagues to support this amendment.
It represents a significant step forward in creating a more reliable
and secure employment verification system.
Mr. KENNEDY. I yield 30 seconds to the Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. OBAMA. Mr. President, I congratulate Senator Grassley and all who
worked on this amendment. This is probably the single most important
thing we can do in terms of reducing the inflow of undocumented
workers--making sure we can actually enforce in a systematic way rules
governing who gets hired.
It is an amendment that has bipartisan support, as Senator Grassley
indicated. It will increase fines. It will provide for an electronic
data system that is effective.
I urge all colleagues on my side of the aisle to vote for the
amendment.
The PRESIDING OFFICER. Who seeks time in opposition?
The Senator from Texas.
Mr. CORNYN. Mr. President, notwithstanding my tremendous admiration
and support for the chairman of the Finance Committee, Mr. Grassley, I
must oppose this amendment.
Secretary Chertoff of the Department of Homeland Security, who is
responsible for actually implementing this program, has called the
requirements of this amendment a poison pill. Why in the world would we
design a verification system, which I agree is the linchpin of
comprehensive enforcement, that fails? Why would we design a system to
fail in which the very person who is responsible for enforcing it calls
it a poison pill? The administration does not support this amendment. I
suggest the underlying bill is a better bill with which to go to
conference and work out our differences.
The PRESIDING OFFICER. The question is on agreeing to amendment.
Mr. BUNNING. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 58, nays 40, as follows:

[Rollcall Vote No. 140 Leg.]

YEAS--58

Akaka
Baucus
Bayh
Biden
Bingaman
Bond
Boxer
Brownback
Byrd
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Dayton
DeWine
Dodd
Durbin
Feingold
Feinstein
Graham
Grassley
Gregg
Hagel
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCain
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Salazar
Sarbanes
Schumer
Snowe
Specter
Stabenow
Stevens
Warner
Wyden

[[Page S4954]]

NAYS--40

Alexander
Allard
Allen
Bennett
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Frist
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Sununu
Talent
Thomas
Thune
Vitter
Voinovich

NOT VOTING--2

Enzi
Rockefeller

The amendment (No. 4177) was agreed to.
Mr. KENNEDY. Mr. President, I move to reconsider the vote.
Mr. LEVIN. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 4106

Mr. KENNEDY. Mr. President, I understand that now before the Senate
is the amendment I offered earlier, is that correct?
The PRESIDING OFFICER. That is correct. There are 2 minutes equally
divided.
Mr. KENNEDY. Mr. President, I yield myself 1 minute.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, when American workers go to work every
day, they expect to go into a workplace that is safe and secure.
American families expect their husbands or their wives to come home to
them because they work in a place that is safe and secure. For the last
16 years, we have not increased any of the penalties--the maximum
penalties--on OSHA, the Fair Labor Standards Act--any of these
penalties. This amendment does do so in a very reasonable and modest
way.
We have just done that with mine safety, and later this evening we
are going to pass mine safety, virtually unanimously. One of the
important parts of the mine safety amendment is the increase in the
penalty. We are doing for American workers and for future American
workers the same thing we have done for mine safety: We are making
sure, through having penalties that are reasonable and responsible,
that we have safe working conditions. That is what the Kennedy
amendment does.
The PRESIDING OFFICER. The time of the Senator has expired. Who seeks
time in opposition?
Mr. SPECTER. Mr. President, I remind my colleagues this is a 10-
minute vote. Time will be strictly enforced; 10 plus 5. I ask my
colleagues to stay on the floor for these last 2 votes. I yield the
remaining time to the Senator from Georgia.
Mr. ISAKSON. Mr. President, there have been no hearings on this
amendment. The Senator from Massachusetts knows full well the mine
safety bill has been heard for over 6 months. I have worked with him.
This amendment takes civil penalties and makes them criminal. I worry
about the worker going to work and getting hurt, but I worry about
destroying the incentive to employ anyone by imposing punitive,
arbitrary assessments on them, all because we sneak an amendment in at
the last minute on a bill that is on an entirely different subject. I
urge everybody to vote with me, because I am going to move to table the
Kennedy amendment, and I encourage a yea vote.
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.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Maryland (Mr. Sarbanes) are
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 41, as follows:

[Rollcall Vote No. 141 Leg.]

YEAS--56

Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kohl
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--41

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Clinton
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Salazar
Schumer
Stabenow
Wyden

NOT VOTING--3

Enzi
Rockefeller
Sarbanes
The motion was agreed to.
Mr. SPECTER. Mr. President, I move to reconsider the vote.
Mr. CRAIG. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I think we have had a fast-moving day. I
have been authorized by the leader to say there will be no further
rollcall votes tonight after this vote. We start tomorrow morning at
8:30 with the McConnell amendment. We will vote at 9:30 on the
McConnell amendment. Of course, we have a cloture vote at 10 o'clock.

I thank my colleagues for their cooperation. I yield 1 minute to the
Senator from Texas, Mr. Cornyn.

Amendment No. 4142

The PRESIDING OFFICER (Mr. Martinez). The next vote is on the Durbin
amendment. There is 2 minutes equally divided.
The Senator from Illinois is recognized for 1 minute.
Mr. DURBIN. Mr. President, last week, by a vote of 99 to 0, we
created a humanitarian waiver for undocumented people in the United
States who are seeking to get on the pathway to legalization. We said
we would allow a nonreviewable look by the Secretary of Homeland
Security at the cases of certain undocumented immigrants who would
otherwise by ineligible for legalization.
This amendment says if you are currently legally in the United States
and, as a result of changes in the law made by this bill, may be
deportable for failing to include a piece of information on an
immigration form, an immaterial omission, you also could qualify for
the same kind of humanitarian waiver, nonreviewable by a court.
It is the same standard for legal residents that last week we
approved for the undocumented. I hope the Senators on both sides will
support the amendment.
Mr. CORNYN. This amendment would waive deportation for aggravated
felons. It would result in a green card, irrespective of legalization,
requiring no payment of taxes, no requirement of learning English, and
no fine.
I believe it would result in the legalization of roughly 6 million
individuals under this standard contained in this amendment.
I urge my colleagues to vote ``no'' on this amendment.
I move to table the amendment, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the Durbin amendment.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Maryland (Mr. Sarbanes) are
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?

[[Page S4955]]

The result was announced--yeas 63, nays 34, as follows:

[Rollcall Vote No. 142 Leg.]

YEAS--63

Alexander
Allard
Allen
Baucus
Bayh
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Dorgan
Ensign
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kyl
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Pryor
Roberts
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--34

Akaka
Biden
Bingaman
Boxer
Cantwell
Carper
Clinton
Dayton
Dodd
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Reed
Reid
Salazar
Specter
Stabenow
Wyden

NOT VOTING--3

Enzi
Rockefeller
Sarbanes
The motion was agreed to.
Mr. CRAIG. Mr. President, I move to reconsider the vote.
Mr. SHELBY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, I understand from the chairman we will not
do any further work on the bill this evening. I would, therefore, ask
unanimous consent that Senator Shelby be allowed to speak for up to 8
minutes, immediately following this statement, and that I then be
allowed to speak for up to 5 minutes following that.
The PRESIDING OFFICER. Is there objection?
Ms. LANDRIEU. Mr. President, reserving the right to object, could I
just be added to the list of speakers?
Mr. CRAIG. I ask the Senator, how much time would she like?
Ms. LANDRIEU. Thirty minutes.
Mr. CRAIG. I follow Senator Shelby. I ask unanimous consent that the
Senator from Louisiana be allowed up to 30 minutes following me.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Alabama is recognized.
Mr. SHELBY. Mr. President, while S. 2611, the immigration bill,
contains important titles addressing border security and worksite
enforcement, the bill, as everyone knows, also contains titles relating
to amnesty for illegal aliens and the creation of a massive new guest
worker program which will undermine true immigration reform, in my
opinion.
The most problematic provisions of S. 2611 are as follows:
One, I want you to know I opposed amnesty 20 years ago. It did not
work then, and I do not believe it will work now.
Two, our first priority should be to secure our borders. Any
discussion of amnesty takes away from that priority, in my judgment.
Three, supporters of these amnesty provisions say it is not amnesty
but what they call ``earned legalization.'' I am not here to argue
about semantics or labels. Whether you call it: ``amnesty,'' ``status
adjustment'' or ``guest worker,'' the result is that individuals who
came here illegally will now be considered legal workers and on their
way toward citizenship. That is the bottom line.
Four, under the so-called compromise that is working here, those who
have broken the law the longest are treated the best.
Five, those who can prove they have been here 2 to 5 years still do
not have to leave the country and are, hence, still treated better than
those waiting to enter legally.
Six, the bill has minimal requirements on proving that an illegal
alien has worked or will work in the future. What few provisions there
are seem very vulnerable to fraud.
Seven, this bill mandates that illegal workers are paid a higher wage
than many American workers in the same position with the same
qualifications.
Eight, the supporters of this bill claim that back taxes will be paid
for past labor. But a close reading of the bill shows that these back
taxes will only be paid, if at all, 8 years down the road when applying
for a green card, not as a requirement to receive the H-2C visa.
Nine, this bill drastically increases the number of employment-based
green cards issued annually. What will happen to the American worker
when unemployment goes up and so many foreign workers, who are willing
to work for less, have been given citizenship?
Ten, today, before the implementation of any reforms, the ability of
our immigration officials to process applicants who are following the
law is severely taxed. This bill will surely have a negative impact on
those foreign workers who have followed the rules and are waiting
patiently in their home country to legally come to this country.
Eleven, while others say comprehensive immigration reform must
include these amnesty provisions, I feel strongly they will only serve
to encourage further illegal immigration in the years to come.
And my 12th reason, the bottom line is, this bill, in my judgment,
rewards past lawbreaking and encourages future lawbreaking. I am
willing to bet that if this bill is enacted, we will only revisit this
problem 20 years--perhaps before 20 years--down the road. Only then, we
might be talking about 20 million to 30 million illegal immigrants.
Those are some of the reasons--and there are many others--why I will
vote ``no'' on the final passage of this legislation.
Ms. COLLINS. Mr. President, I rise today to express my support for a
provision in S. 2611 that will level the playing field for minor league
sports teams that depend on getting the best athletic talent. Under
current law, minor league players who have to use the H-2B visa
category face severe visa shortages, while Major League players qualify
automatically for plentiful P-1 visas. This unfair discrepancy in the
law needs to be remedied, and my amendment, which was accepted by the
Judiciary Committee and is now in the underlying bill, provides a
commonsense solution.
By way of background, H-2B visas are intended for use by industries
facing seasonal demands for labor, such as the hospitality and
agricultural industries. What many people do not know is that, in
addition to loggers, hotel and restaurant employees, and many other
types of seasonal workers, the H-2B visa category is also used by many
talented, highly competitive foreign athletes who are recruited by U.S.
teams.
A chronic H-2B visa shortage over the last few years has posed
challenges for all industries using the H-2B visa category. In both
fiscal years 2004 and 2005, the 66,000 visa cap was met early in the
year. While we were successful last year in crafting a temporary 2-year
fix for the H-2B shortage, this fix will expire at the end of the
current fiscal year. I commend my colleague from Maryland, Senator
Mikulski, for offering an amendment to this bill that would extend the
current exemption of returning H-2B workers until 2009.
However, solving this problem goes beyond fixing the H-2B visa cap.
Minor league players simply do not belong in the same visa category as
seasonal workers. There is no reason why Major League players can
qualify automatically for P-1 visas, which are granted to talented
athletes, artists, and entertainers, while minor league players cannot.
My amendment would remedy this unfair situation.
The problem of requiring minor league athletes to use the H-2B visa
category has posed a particular challenge to those of us in Maine who
enjoy cheering on our sports teams. The MAINEiacs, a Canadian junior
hockey league team that plays its games in Lewiston, ME, has faced
tremendous difficulties obtaining the H-2B visas necessary for the
majority of its players to come to the United States to play in the
team's first home games.
Last year, due to uncertainty surrounding the availability of H-2B
visas at the end of the fiscal year, the team had to reschedule its
season home opener and cancel several early season games. This forced
the team to schedule make-up games for those normally

[[Page S4956]]

played in September. The problems created by the visa situation creates
an unnecessary hardship for this team, in addition to threatening the
revenue the team generates for the city of Lewiston and businesses in
the surrounding area.
The Portland Sea Dogs, a Double-A baseball team affiliated with the
Boston Red Sox, is another of the many teams that relies on H-2B visas
to bring some of its most skilled players to the United States.
Thousands of fans come each year to see this team, and others like it
across the country, play one of America's favorite sports. Due to the
shortage of H-2B visas, however, Major League Baseball reports that, in
2004 and early 2005, more than 350 talented young, foreign baseball
players were prevented from coming to the U.S. to play for minor league
teams. These teams have been a traditional proving ground for athletes
hoping to make it to the major leagues and players often move from
these teams to major league rosters.
The inclusion of these highly skilled athletes in the H-2B visa
category seems particularly unusual when you consider that major league
athletes are permitted to use an entirely different non-immigrant visa
category--the P-1 visa. This visa is available to athletes who are
deemed by the Citizenship and Immigration Services to perform at an
``internationally recognized level of performance.'' Arguably, any
foreign athlete whose achievements have earned him a contract with an
American team would meet this definition.
CIS, however, has interpreted this category to exclude minor and
amateur league athletes. Instead, the P-1 visa is typically reserved
for only those athletes who have already been promoted to major league
sports. Unfortunately, this creates something of a catch-22 for minor
league athletes--if an H-2B visa shortage means that promising athletes
are unable to hone their skills, and to prove themselves, in the minor
leagues, they are far less likely to ever earn the major league
contract currently required to obtain a P-1 visa.
A simple, commonsense solution would be to expand the P-1 visa
category to include minor league and certain amateur-level athletes who
have demonstrated a significant likelihood of graduating to the major
leagues. Major League Baseball strongly supports the expansion of the
P-1 visa category to include professional minor league baseball
players. In correspondence to me, the league has pointed out that, by
making P-1 visas available to this group of athletes, teams would be
able to make player development decisions based on the talent of its
players, without being constrained by visa quotas. The P-1 category,
the league believes, is appropriate for minor league players because
these are the players that Major League clubs have selected as some of
the best baseball prospects in the world.
There is no question that Americans are passionate about sports. We
have high expectations for our teams, and demand only the best from our
athletes. By expanding the P-1 visa category, we will make it possible
for athletes to be selected based on talent and skill, rather than visa
availability. In addition, we would reduce some pressure on the H-2B
visa category making more of those visas available to the industries
that need them.
I am pleased that this important provision is included in S. 2611,
and I thank the Judiciary Committee for their willingness to
incorporate it into the underlying bill.
I ask unanimous consent that letters endorsing my amendment from the
Lewiston MAINEiacs Hockey Club and Major League Baseball be printed in
the Record.
There: being no objection, the material was ordered to be printed in
the Record, as follows:

Lewiston MAINEiacs

Hockey Club, LLC,

Lewiston, ME, April 7, 2006.
Re ``MAINEiacs'' amendment to enable American sports teams to
recruit talented players from abroad.

Hon. Susan M. Collins,
Russell Senate Office Building,
Washington, DC
Dear Senator Collins: I wish to express the Lewiston
MAINEiacs Hockey Club's support for your efforts with regards
to ``MAINEiacs'' amendment to enable American sports teams to
recruit talented players from abroad.
The Lewiston MAINEiacs Hockey Club is the sole U.S. based
franchise in the 18-member Quebec Major Junior Hockey League
(QMJHL). The QMJHL together with the Ontario Hockey League
(OHL) and the Western Hockey League (WHL) make up the
Canadian Hockey League which comprises a total of 58 teams.
Of those 58 franchises, 9 are located in the United States
(OHL-3, WHL-5, QMJHL-1).
The CHL is the largest developer of talent for the National
Hockey League (NHL). More than 70% of all players, coaches
and general managers who have played in the NHL are graduates
of the Canadian Hockey League.
The majority of players in the Canadian Hockey League are
Canadian, although each team is permitted to have a maximum
of 2 Europeans on their rosters. There is also an increasing
number of elite U.S. born players now playing in the league.
In January of 2004, the City of Lewiston purchased the
Colisee in order to complete the first round of renovations
to the facility which was in excess of two million dollars.
The Colisee has undergone a second phase of renovations in
excess of 1.8 millions dollars that entails a three-story
addition to the front of the building providing for new
offices, box office, pro-shop, food and beverage concessions
and a new private VIP suite that can accommodate more than
130 fans per game. The City of Lewiston contracted the day-
to-day management of the Colisee to Global Spectrum, a
subsidiary of Comcast-Spectacor, one of the largest and most
successful facility management companies in North America.
The results of the current visa laws have forced all U.S.
based franchises in the CHL to delay the commencement of
their regular season until or after October 1 of each year
due to the restrictions of the of the H-2B temporary work
visa regulations. This has caused significant hardship on
teams, their facilities and the 3 leagues. U.S. based
franchises are forced to try and make-up games that would
normally be scheduled in the month of the September later in
the season, putting both the teams and their fans at
disadvantage before the season even commences.
Under your leadership, should congressional legislation
make available P-1 visas to Major Junior players of the CHL,
the success of all 9 U.S. based CHL franchises would be
greatly enhanced by ensuring that all 58 teams have an equal
chance at attracting and developing the best available
talent.
It is the hope of the Lewiston MAINEiacs that your
colleagues in the Senate follow your leadership and endorse
your recommendations for the amendment to the immigration
reform bill to ensure the viability and success of not only
our franchise--but the 8 other U.S. based clubs in the
Canadian Hockey League.
Sincerely,
Matt McKnight,
Vice President & Governor.
____

Office of the Commissioner,

Major League Baseball,

New York, NY, April 27, 2006.
Hon. Susan M. Collins,
Russell Senate Office Building,
Washington, DC.
Re legislation for nonimmigrant alien status for certain
athletes.

Dear Senator Collins: I write to express Major League
Baseball's support as you redouble your efforts to make Minor
League players eligible for P-l work visas.
Unlike other professional athletes, baseball players need
substantial experience in the Minor Leagues to develop their
talents and skills to Major League quality. To get that
necessary experience, young players are signed by Major
League Clubs and assigned to play for Minor League affiliates
throughout the United States, such as Maine's own Portland
Sea Dogs.
Approximately 40 percent of these young players come from
foreign countries, and MLB must obtain H2-B visas in order
for them to enter the U.S. Under current law, however, these
visas are capped, and the demand for them is so great across
a wide range of industries, many Minor Leaguers are not being
afforded the opportunity to play here and develop into Major
League baseball players.
The lack of available visas prevented more than 350 young
baseball players from performing in the United States in 2004
and 2005, and will prevent even more from doing so this year.
Additionally, over the past few years several Clubs have
shied away from drafting foreign (mostly Canadian) players
whom they otherwise might have selected in the annual First-
Year Player Draft, because of the risk of not being able to
obtain visas for those players. In fact, in 2004, signings of
Canadian players declined 80% over the previous year, and in
2005 only four of the twenty-five Canadian players who were
drafted were eventually signed by a Club. The resulting
impact on the quality of the product on the field is
significant, particularly for almost forty million Americans
who attend Minor League Baseball games each year.
Under your leadership, Congress can ensure that the best
baseball prospects from around the world will have the
opportunity to develop here in the United States, without the
constraint that the H-2B visa cap imposes. Minor League
Baseball shares our support of your efforts. The Major League
Baseball Players Association also supports allowing the best
young players to develop here in the United States.
Major Legue Baseball hopes that your Senate colleagues will
follow your leadership

[[Page S4957]]

and pursue a legislatiye remedy to a problem that is
threatening to weaken Baseball's Minor League system.
Sincerely,
Robert A. DuPuy,
President & Chief Operating Officer.

Mr. ENSIGN. Mr. President, I ask unanimous consent that a copy of a
letter addressed to me from Mark J. Sprinkle in support of amendment
No. 4076, which was agreed to yesterday, amending S. 2611, be printed
in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Senator: I returned home last night from my two weeks of
Annual Training (AT) with the National Guard. I was able to
meet many of the soldiers I will serve with in Iraq. They all
seem great and I look forward to working with them to
accomplish our mission of delivering fuel to units throughout
the country. We did some excellent training in Hawthorne. We
were able to see some examples of IEDs, work on convoy
procedures and tactics, and do innovative things like firing
M-16s from the windows of our moving trucks at targets 50 and
250 meters away. This training was enjoyable and it really
tied into what we'll be doing over there.
When I got home, I caught a replay of the Armed Services
Committee meeting regarding the role and mission of the
National Guard on the border. I agree with the comments of
Lt. General Blum of the NGB that the Guard will prove more
than capable and effective in helping to secure the border.
All people enjoy accomplishing tasks and helping others. I
think it would be a great feeling for an engineer to build a
road that will be there for decades and for a helicopter
medevac crew-member to rescue a sick or injured person in the
desert. It is a tremendous idea to use the Guard in this
capacity. It will help units stay sharp and prepared by
having them use the same skill sets that they will use in
fulfilling their missions during natural disasters and in
warzones. I also like the idea of having units rotate in
during their two week AT. That would be great training and it
sure beats sitting in an armory for 15 days. Your amendment
to reimburse states with federal funds is great and I hope
that governors will allow their units to assist the Border
Patrol in accomplishing their vital mission of securing the
border. Well Senator, just some thoughts and observations
from your local guardsman.
Sincerely,
Mark J. Sprinkle.

The PRESIDING OFFICER. The Senator from Idaho.

____________________