[Congressional Record (Bound Edition), Volume 152 (2006), Part 7]
[Senate]
[Pages 9071-9083]
[From the U.S. Government Publishing Office, www.gpo.gov]




              COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 2611, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (S. 2611) to provide for comprehensive immigration 
     reform and for other purposes.

  Pending:

       Feinstein-Harkin amendment No. 4087, to modify the 
     conditions under which aliens who are unlawfully present in 
     the United States are granted legal status.

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be a period of debate for up to 60 minutes on amendment No. 
4087, with the Senator from California, Mrs. Feinstein, in control of 
30 minutes, the Senator from Pennsylvania, Mr. Specter, in control of 
20 minutes, and the Senator from Massachusetts, Mr. Kennedy, in control 
of 10 minutes.
  The Senator from California is recognized.
  Mrs. FEINSTEIN. I thank the President. I also want to thank the 
chairman of the committee. He has been a very good chairman. I want him 
to know that the only reason I offer this amendment is because when we 
read the bill language of Hagel-Martinez, which has not been voted on 
by this body, I believe it to be unworkable. I believe it will create 
another class of illegal immigrants in this country. I believe it is 
impossible to carry out the deportation requirements of the Hagel-
Martinez amendment.


                    Amendment No. 4087, as Modified

  I send an amendment to the desk, as modified, on behalf of Senators 
Harkin, Kennedy, Reid, Kerry, and myself. This is a modification of my 
earlier amendment.
  The ACTING PRESIDENT pro tempore. Without objection, the amendment is 
so modified.
  (The amendment, No. 4087, as modified, is as follows:

       On page 345 strike line 10 and all that follows through 
     page 395, line 23, and insert the following:

                Subtitle A--Earned Adjustment of Status

     SEC. 601. ORANGE CARD VISA PROGRAM.

       (a) Short Title.--This section may be cited as the ``Orange 
     Card Program''.
       (b) Earned Adjustment of Status.--
       (1) In general.--Chapter 5 of title II (8 U.S.C. 1255 et 
     seq.) is amended by inserting after section 245A the 
     following:

     ``SEC. 245B. ACCESS TO EARNED ADJUSTMENT.

       ``(a) Adjustment of Status.--
       ``(1) Principal aliens.--Subject to subsection (c)(5) and 
     notwithstanding any other provision of law, including section 
     244(h), the Secretary of Homeland Security shall adjust an 
     alien's status to the status of an alien lawfully admitted 
     for permanent residence, if the alien satisfies the following 
     requirements:
       ``(A) Application.--The alien shall file an application 
     establishing eligibility for adjustment of status in 
     accordance with the procedures established under subsection 
     (n) and pay the fine required under subsection (m) and any 
     additional amounts owed under that subsection.
       ``(B) Continuous physical presence.--
       ``(i) In general.--The alien shall establish that the 
     alien--

       ``(I) was physically present in the United States on or 
     before January 1, 2006;
       ``(II) was not legally present in the United States on or 
     before January 1, 2006, under any classification set forth in 
     section 101(a)(15); and
       ``(III) did not depart from the United States on or before 
     January 1, 2006, except for brief, casual, and innocent 
     departures.

       ``(ii) Legally present.--For purposes of this subparagraph, 
     an alien who has violated any conditions of the alien's visa 
     shall be considered not to be legally present in the United 
     States.
       ``(C) Admissible under immigration laws.--The alien shall 
     establish that the alien is not inadmissible under section 
     212(a) except for any provision of that section that is 
     waived under subsection (b) of this section.
       ``(D) Employment in the united states.--
       ``(i) In general.--The alien shall--

       ``(I) submit all documentation of the alien's employment in 
     the United States before January 1, 2006; and
       ``(II) be employed in the United States for at least 6 
     years, in the aggregate, after the date of the enactment of 
     the Orange Card Program.

       ``(ii) Exceptions.--

       ``(I) In general.--The employment requirement in clause (i) 
     shall be reduced for an individual who--

       ``(aa) cannot demonstrate employment based on a physical or 
     mental disability or as a result of pregnancy; or
       ``(bb) is under 18 years of age on the date of the 
     enactment of the Orange Card Program, by a period of time 
     equal to the time period beginning on such date of enactment 
     and ending on the date on which the individual reaches 18 
     years of age.

       ``(II) Postsecondary study.--The employment requirements in 
     clause (i) shall be reduced by 1 year for each year of 
     completed full time postsecondary study in the United States 
     during the relevant period.

       (III) The employment requirements in clause (i) shall not 
     apply to an alien who is 65 years or older on the date of 
     enactment of this Act.
       ``(iii) Portability.--An alien shall not be required to 
     complete the employment requirements in clause (i) with the 
     same employer.
       ``(iv) Evidence of employment.--

       ``(I) Conclusive documents.--For purposes of satisfying the 
     requirements in clause (i), the alien shall submit at least 2 
     of the following documents for each period of employment, 
     which shall be considered conclusive evidence of such 
     employment:

       ``(aa) Records maintained by the Social Security 
     Administration.
       ``(bb) Records maintained by an employer, such as pay 
     stubs, time sheets, or employment work verification.
       ``(cc) Records maintained by the Internal Revenue Service.
       ``(dd) Records maintained by a union or day labor center.

[[Page 9072]]

       ``(ee) Records maintained by any other government agency, 
     such as worker compensation records, disability records, or 
     business licensing records.

       ``(II) Other documents.--An alien who is unable to submit a 
     document described in subclause (I) may satisfy the 
     requirement in clause (i) by submitting to the Secretary at 
     least 2 other types of reliable documents that provide 
     evidence of employment for each required period of 
     employment, including--

       ``(aa) bank records;
       ``(bb) business records;
       ``(cc) sworn affidavits from nonrelatives who have direct 
     knowledge of the alien's work, including the name, address, 
     and phone number of the affiant, the nature and duration of 
     the relationship between the affiant and the alien, and other 
     verification information; or
       ``(dd) remittance records.
       ``(v) Burden of proof.--An alien applying for adjustment of 
     status under this subsection has the burden of proving by a 
     preponderance of the evidence that the alien has satisfied 
     the employment requirements in clause (i).
       ``(E) Payment of income taxes.--The alien shall establish 
     the payment of all Federal and State income taxes owed for 
     employment during the period of employment required under 
     subparagraph (D)(i). The alien may satisfy such requirement 
     by establishing that--
       ``(i) no such tax liability exists;
       ``(ii) all outstanding liabilities have been met; or
       ``(iii) the alien has entered into an agreement for payment 
     of all outstanding liabilities with the Internal Revenue 
     Service and with the department of revenue of each State to 
     which taxes are owed.
       ``(F) Basic citizenship skills.--
       ``(i) In general.--Except as provided in clause (ii), the 
     alien shall demonstrate that the alien either--

       ``(I) meets the requirements of section 312(a) (relating to 
     a knowledge and understanding of English and the history and 
     Government of the United States); or
       ``(II) is satisfactorily pursuing a course of study, 
     recognized by the Secretary of Homeland Security, to achieve 
     such understanding of English and the history and Government 
     of the United States.

       ``(ii) Exceptions.--

       ``(I) Mandatory.--The requirements of clause (i) shall not 
     apply to any person who is unable to comply with those 
     requirements because of a physical or developmental 
     disability or mental impairment.
       ``(II) Discretionary.--The Secretary of Homeland Security 
     may waive all or part of the requirements of clause (i) in 
     the case of an alien who is 65 years of age or older as of 
     the date of the filing of the application for adjustment of 
     status.

       ``(G) Security and law enforcement clearances.--The alien 
     shall submit fingerprints in accordance with procedures 
     established by the Secretary of Homeland Security. Such 
     fingerprints shall be submitted to relevant Federal agencies 
     to be checked against existing databases for information 
     relating to criminal, national security, or other law 
     enforcement actions that would render the alien ineligible 
     for adjustment of status under this subsection. The relevant 
     Federal agencies shall work to ensure that such clearances 
     are completed within 90 days of the submission of 
     fingerprints. An appeal of a security clearance determination 
     by the Secretary of Homeland Security shall be processed 
     through the Department of Homeland Security.
       ``(H) Military selective service.--The alien shall 
     establish that if the alien is within the age period required 
     under the Military Selective Service Act (50 U.S.C. App. 451 
     et seq.) that such alien has registered under that Act.
       ``(I) Annual reporting requirement.--
       ``(i) In general.--An alien who has applied for an 
     adjustment of status under this section shall annually submit 
     to the Secretary of Homeland Security the documentation 
     described in clause (ii) and the fee required under 
     subsection (m)(3).
       ``(ii) Documentation.--The documentation submitted under 
     clause (i) shall include evidence of employment described in 
     subparagraph (D)(iv), proof of payment of taxes described in 
     subparagraph (E), and documentation of any criminal 
     conviction or an affidavit stating that the alien has not 
     been convicted of any crime.
       ``(iii) Termination.--The reporting requirement under this 
     subparagraph shall terminate on the date on which the alien 
     is granted the status of an alien lawfully admitted for 
     permanent residence.
       ``(J) Adjustment of status.--An alien may not adjust to 
     legal permanent residence status under this section until 
     after the earlier of--
       ``(i) the consideration of all applications filed under 
     section 201, 202, or 203 before the date of enactment of this 
     section; or
       ``(ii) 8 years after the date of enactment of this section.
       ``(2) Spouses and children.--
       ``(A) In general.--
       ``(i) Adjustment of status.--Notwithstanding any other 
     provision of law, the Secretary of Homeland Security shall, 
     if otherwise eligible under subparagraph (B), adjust the 
     status to that of a lawful permanent resident under this 
     section, or provide an immigrant visa to--

       ``(I) the spouse, or child who was under 21 years of age on 
     the date of enactment of the Orange Card Program, of an alien 
     who adjusts status or is eligible to adjust status to that of 
     a permanent resident under paragraph (1); or
       ``(II) an alien who, within 5 years preceding the date of 
     the enactment of the Orange Card Program, was the spouse or 
     child of an alien who adjusts status to that of a permanent 
     resident under paragraph (1), if--

       ``(aa) the termination of the qualifying relationship was 
     connected to domestic violence; or
       ``(bb) the spouse or child has been battered or subjected 
     to extreme cruelty by the spouse or parent who adjusts status 
     or is eligible to adjust status to that of a permanent 
     resident under paragraph (1).
       ``(ii) Application of other law.--In acting on applications 
     filed under this paragraph with respect to aliens who have 
     been battered or subjected to extreme cruelty, the Secretary 
     of Homeland Security shall apply the provisions of section 
     204(a)(1)(J) and the protections, prohibitions, and penalties 
     under section 384 of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).
       ``(B) Grounds of inadmissibility not applicable.--In 
     establishing admissibility to the United States, the spouse 
     or child described in subparagraph (A) shall establish that 
     they are not inadmissible under section 212(a), except for 
     any provision of that section that is waived under subsection 
     (b) of this section.
       ``(C) Security and law enforcement clearance.--The spouse 
     or child, if that child is 14 years of age or older, 
     described in subparagraph (A) shall submit fingerprints in 
     accordance with procedures established by the Secretary of 
     Homeland Security. Such fingerprints shall be submitted to 
     relevant Federal agencies to be checked against existing 
     databases for information relating to criminal, national 
     security, or other law enforcement actions that would render 
     the alien ineligible for adjustment of status under this 
     subsection. The relevant Federal agencies shall work to 
     ensure that such clearances are completed within 90 days of 
     the submission of fingerprints. An appeal of a denial by the 
     Secretary of Homeland Security shall be processed through the 
     Department of Homeland Security.
       ``(3) Nonapplicability of numerical limitations.--When an 
     alien is granted lawful permanent resident status under this 
     subsection, the number of immigrant visas authorized to be 
     issued under any provision of this Act shall not be reduced.
       ``(b) Grounds of Inadmissibility.--
       ``(1) Applicable provisions.--In the determination of an 
     alien's admissibility under paragraphs (1)(C) and (2) of 
     subsection (a), the following provisions of section 212(a) 
     shall apply and may not be waived by the Secretary of 
     Homeland Security under paragraph (3)(A):
       ``(A) Paragraph (2) (relating to criminals).
       ``(B) Paragraph (3) (relating to security and related 
     grounds).
       ``(C) Subparagraphs (A) and (C) of paragraph (10) (relating 
     to polygamists and child abductors).
       ``(2) Grounds of inadmissibility not applicable.--The 
     provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), 
     (6)(G), (7), (9), and (10)(B) of section 212(a) shall not 
     apply to an alien who is applying for adjustment of status 
     under subsection (a).
       ``(3) Waiver of other grounds.--
       ``(A) In general.--Except as provided in paragraph (1), the 
     Secretary of Homeland Security may waive any provision of 
     section 212(a) in the case of individual aliens for 
     humanitarian purposes, to ensure family unity, or when it is 
     otherwise in the public interest.
       ``(B) Construction.--Nothing in this paragraph shall be 
     construed as affecting the authority of the Secretary of 
     Homeland Security, other than under this subparagraph, to 
     waive the provisions of section 212(a).
       ``(4) Special rule for determination of public charge.--An 
     alien is not ineligible for adjustment of status under 
     subsection (a) by reason of a ground of inadmissibility under 
     section 212(a)(4) if the alien establishes a history of 
     employment in the United States evidencing self-support 
     without public cash assistance.
       ``(5) Special rule for individuals where there is no 
     commercial purpose.--An alien is not ineligible for 
     adjustment of status under subsection (a) by reason of a 
     ground of inadmissibility under section 212(a)(6)(E) if the 
     alien establishes that the action referred to in that section 
     was taken for humanitarian purposes, to ensure family unity, 
     or was otherwise in the public interest.
       ``(6) Ineligibility.--
       ``(A) In general.--An alien is ineligible for adjustment to 
     lawful permanent resident status under this section if--
       ``(i) the alien has been ordered removed from the United 
     States--

       ``(I) for overstaying the period of authorized admission 
     under section 217;
       ``(II) under section 235 or 238; or
       ``(III) pursuant to a final order of removal under section 
     240;

[[Page 9073]]

       ``(ii) the alien failed to depart the United States during 
     the period of a voluntary departure order issued under 
     section 240B;
       ``(iii) the alien is subject to section 241(a)(5);
       ``(iv) the Secretary of Homeland Security determines that--

       ``(I) the alien, having been convicted by a final judgment 
     of a serious crime, constitutes a danger to the community of 
     the United States;
       ``(II) there are reasonable grounds for believing that the 
     alien has committed a serious crime outside the United States 
     prior to the arrival of the alien in the United States; or
       ``(III) there are reasonable grounds for regarding the 
     alien as a danger to the security of the United States; or

       ``(v) the alien has been convicted of a felony or 3 or more 
     misdemeanors.
       ``(B) Exception.--Notwithstanding subparagraph (A), an 
     alien who has not been ordered removed from the United States 
     shall remain eligible for adjustment to lawful permanent 
     resident status under this section if the alien's 
     ineligibility under subparagraph (A) is solely related to the 
     alien's--
       ``(i) entry into the United States without inspection;
       ``(ii) remaining in the United States beyond the period of 
     authorized admission; or
       ``(iii) failure to maintain legal status while in the 
     United States.
       ``(C) Waiver.--The Secretary may, in the Secretary's sole 
     and unreviewable discretion, waive the application of 
     subparagraph (A) if the alien--
       ``(i) was ordered removed on the basis that the alien--

       ``(I) entered without inspection;
       ``(II) failed to maintain status; or
       ``(III) was ordered removed under 212(a)(6)(C)(i) before 
     April 7, 2006; and

       ``(ii) demonstrates that--

       ``(I) the alien did not receive notice of removal 
     proceedings in accordance with paragraph (1) or (2) of 
     section 239(a);
       ``(II) the alien's failure to appear was due to exceptional 
     circumstances beyond the control of the alien; or
       ``(III) requiring the alien to depart from the United 
     States would result in extreme hardship to the alien's 
     spouse, parent, or child, who is a citizen of the United 
     States or an alien lawfully admitted for permanent residence.

       ``(c) Treatment of Applicants.--
       ``(1) In general.--An alien who establishes the 
     requirements under subsection (a)(1)(B) for including a 
     spouse or child of such alien--
       ``(A) shall be granted employment authorization upon the 
     filing of an application fee of $1,000 pending final 
     adjudication of the alien's application for adjustment of 
     status;
       ``(B) shall be granted permission to travel abroad pursuant 
     to regulation pending final adjudication of the alien's 
     application for adjustment of status;
       ``(C) shall not be detained, determined inadmissible or 
     deportable, or removed pending final adjudication of the 
     alien's application for adjustment of status, unless the 
     alien commits an act which renders the alien ineligible for 
     such adjustment of status; and
       ``(D) shall not be considered an unauthorized alien as 
     defined in section 274A(h)(3) until such time as employment 
     authorization under subparagraph (A) is denied.
       ``(2) Document of authorization.--The Secretary of Homeland 
     Security shall provide each alien described in paragraph (1) 
     with a counterfeit-resistant orange card that--
       ``(A) meets all current requirements established by the 
     Secretary of Homeland Security for travel documents, 
     including the requirements under section 403 of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note);
       ``(B) reflects the benefits and status set forth in 
     paragraph (1); and
       ``(C) contains a unique number that authorizes card holders 
     who have resided longer in the United States to receive the 
     status of lawful permanent resident before similarly situated 
     card holders whose length of residence in the United States 
     is shorter.
       ``(3) Security and law enforcement clearance.--Before an 
     alien is granted employment authorization or permission to 
     travel under paragraph (1), the alien shall be required to 
     undergo a name check against existing databases for 
     information relating to criminal, national security, or other 
     law enforcement actions. The relevant Federal agencies shall 
     work to ensure that such name checks are completed not later 
     than 90 days after the date on which the name check is 
     requested.
       ``(4) Termination of proceedings.--An alien in removal 
     proceedings who establishes prima facie eligibility for 
     adjustment of status under subsection (a) shall be entitled 
     to termination of the proceedings pending the outcome of the 
     alien's application, unless the removal proceedings are based 
     on criminal or national security grounds.
       ``(5) Adjustment to permanent residence.--
       ``(A) In general.--The Secretary of Homeland Security shall 
     adjust the status of an alien who satisfies all the 
     requirements under subsection (a) to that of an alien 
     lawfully admitted for permanent residence.
       ``(B) Nonapplicability of numerical limitations.--When an 
     alien is granted lawful permanent resident status under this 
     section, the number of immigrant visas authorized to be 
     issued under any provision of this Act shall not be reduced.
       ``(d) Apprehension Before Application Period.--The 
     Secretary of Homeland Security shall provide that in the case 
     of an alien who is apprehended before the beginning of the 
     application period described in subsection (a) and who can 
     establish prima facie eligibility to have the alien's status 
     adjusted under that subsection (but for the fact that the 
     alien may not apply for such adjustment until the beginning 
     of such period), until the alien has had the opportunity 
     during the first 180 days of the application period to 
     complete the filing of an application for adjustment, the 
     alien may not be removed from the United States unless the 
     alien is removed on the basis that the alien has engaged in 
     criminal conduct or is a threat to the national security of 
     the United States.
       ``(e) Confidentiality of Information.--
       ``(1) In general.--Except as otherwise provided in this 
     section, no Federal agency or bureau, nor any officer or 
     employee of such agency or bureau, may--
       ``(A) use the information furnished by the applicant 
     pursuant to an application filed under paragraph (1) or (2) 
     of subsection (a) for any purpose other than to make a 
     determination on the application;
       ``(B) make any publication through which the information 
     furnished by any particular applicant can be identified; or
       ``(C) permit anyone other than the sworn officers and 
     employees of such agency, bureau, or approved entity, as 
     approved by the Secretary of Homeland Security, to examine 
     individual applications that have been filed.
       ``(2) Required disclosures.--The Secretary of Homeland 
     Security and the Secretary of State shall provide the 
     information furnished pursuant to an application filed under 
     paragraph (1) or (2) of subsection (a), and any other 
     information derived from such furnished information, to a 
     duly recognized law enforcement entity in connection with a 
     criminal investigation or prosecution or a national security 
     investigation or prosecution, in each instance about an 
     individual suspect or group of suspects, when such 
     information is requested in writing by such entity.
       ``(3) Criminal penalty.--Any person who knowingly uses, 
     publishes, or permits information to be examined in violation 
     of this subsection shall be fined not more than $10,000.
       ``(f) Penalties for False Statements in Applications.--
       ``(1) Criminal penalty.--
       ``(A) Violation.--It shall be unlawful for any person to--
       ``(i) file or assist in filing an application for 
     adjustment of status under this section and knowingly and 
     willfully falsify, conceal, or cover up a material fact or 
     make any false, fictitious, or fraudulent statements or 
     representations, or make or use any false writing or document 
     knowing the same to contain any false, fictitious, or 
     fraudulent statement or entry; or
       ``(ii) create or supply a false writing or document for use 
     in making such an application.
       ``(B) Penalty.--Any person who violates subparagraph (A) 
     shall be fined in accordance with title 18, United States 
     Code, or imprisoned not more than 5 years, or both.
       ``(2) Inadmissibility.--An alien who is convicted of a 
     crime under paragraph (1) shall be considered to be 
     inadmissible to the United States.
       ``(3) Exception.--Notwithstanding paragraphs (1) and (2), 
     any alien or other entity (including an employer or union) 
     that submits an employment record that contains incorrect 
     data that the alien used in order to obtain such employment, 
     shall not have violated this subsection.
       ``(g) Ineligibility for Public Benefits.--For purposes of 
     section 403 of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613), an 
     alien whose status has been adjusted in accordance with 
     subsection (a) shall not be eligible for any Federal means-
     tested public benefit unless the alien meets the alien 
     eligibility criteria for such benefit under title IV of such 
     Act (8 U.S.C. 1601 et seq.).
       ``(h) Relationships of Application to Certain Orders.--
       ``(1) In general.--An alien who is present in the United 
     States and has been ordered excluded, deported, removed, or 
     to depart voluntarily from the United States or is subject to 
     reinstatement of removal under any provision of this Act may, 
     notwithstanding such order, apply for adjustment of status 
     under subsection (a). Such an alien shall not be required, as 
     a condition of submitting or granting such application, to 
     file a separate motion to reopen, reconsider, or vacate the 
     exclusion, deportation, removal or voluntary departure order. 
     If the Secretary of Homeland Security grants the application, 
     the order shall be canceled. If the Secretary of Homeland 
     Security renders a final administrative decision to deny the 
     application, such order shall be effective and enforceable. 
     Nothing in this paragraph shall affect the review or stay of 
     removal under subsection (j).
       ``(2) Stay of removal.--The filing of an application 
     described in paragraph (1) shall stay the removal or 
     detainment of the alien

[[Page 9074]]

     pending final adjudication of the application, unless the 
     removal or detainment of the alien is based on criminal or 
     national security grounds.
       ``(i) Application of Other Provisions.--Nothing in this 
     section shall preclude an alien who may be eligible to be 
     granted adjustment of status under subsection (a) from 
     seeking such status under any other provision of law for 
     which the alien may be eligible.
       ``(j) Administrative and Judicial Review.--
       ``(1) In general.--Except as provided in this subsection, 
     there shall be no administrative or judicial review of a 
     determination respecting an application for adjustment of 
     status under subsection (a).
       ``(2) Administrative review.--
       ``(A) Single level of administrative appellate review.--The 
     Secretary of Homeland Security shall establish an appellate 
     authority to provide for a single level of administrative 
     appellate review of a determination respecting an application 
     for adjustment of status under subsection (a).
       ``(B) Standard for review.--Administrative appellate review 
     referred to in subparagraph (A) shall be based solely upon 
     the administrative record established at the time of the 
     determination on the application and upon the presentation of 
     additional or newly discovered evidence during the time of 
     the pending appeal.
       ``(3) Judicial review.--
       ``(A) Direct review.--A person whose application for 
     adjustment of status under subsection (a) is denied after 
     administrative appellate review under paragraph (2) may seek 
     review of such denial, in accordance with chapter 7 of title 
     5, United States Code, before the United States district 
     court for the district in which the person resides.
       ``(B) Review after removal proceedings.--There shall be 
     judicial review in the Federal courts of appeal of the denial 
     of an application for adjustment of status under subsection 
     (a) in conjunction with judicial review of an order of 
     removal, deportation, or exclusion, but only if the validity 
     of the denial has not been upheld in a prior judicial 
     proceeding under subparagraph (A). Notwithstanding any other 
     provision of law, the standard for review of such a denial 
     shall be governed by subparagraph (C).
       ``(C) Standard for judicial review.--Judicial review of a 
     denial of an application under this section shall be based 
     solely upon the administrative record established at the time 
     of the review. The findings of fact and other determinations 
     contained in the record shall be conclusive unless the 
     applicant can establish abuse of discretion or that the 
     findings are directly contrary to clear and convincing facts 
     contained in the record, considered as a whole.
       ``(4) Stay of removal.--Aliens seeking administrative or 
     judicial review under this subsection shall not be removed 
     from the United States until a final decision is rendered 
     establishing ineligibility under this section, unless such 
     removal is based on criminal or national security grounds.
       ``(k) Dissemination of Information on Adjustment Program.--
     During the 12 months following the issuance of final 
     regulations in accordance with subsection (o), the Secretary 
     of Homeland Security, in cooperation with approved entities, 
     approved by the Secretary of Homeland Security, shall broadly 
     disseminate information respecting adjustment of status under 
     this section and the requirements to be satisfied to obtain 
     such status. The Secretary of Homeland Security shall also 
     disseminate information to employers and labor unions to 
     advise them of the rights and protections available to them 
     and to workers who file applications under this section. Such 
     information shall be broadly disseminated, in the languages 
     spoken by the top 15 source countries of the aliens who would 
     qualify for adjustment of status under this section, 
     including to television, radio, and print media such aliens 
     would have access to.
       ``(l) Employer Protections.--
       ``(1) Immigration status of alien.--Employers of aliens 
     applying for adjustment of status under this section shall 
     not be subject to civil and criminal tax liability relating 
     directly to the employment of such alien.
       ``(2) Provision of employment records.--Employers that 
     provide unauthorized aliens with copies of employment records 
     or other evidence of employment pursuant to an application 
     for adjustment of status under this section or any other 
     application or petition pursuant to other provisions of the 
     immigration laws, shall not be subject to civil and criminal 
     liability pursuant to section 274A for employing such 
     unauthorized aliens.
       ``(3) Applicability of other law.--Nothing in this 
     subsection shall be used to shield an employer from liability 
     pursuant to section 274B or any other labor and employment 
     law provisions.
       ``(m) Authorization of Appropriations; Fines; Fees.--
       ``(1) Authorization of appropriations.--There are 
     authorized to be appropriated to the Secretary of Homeland 
     Security $100,000,000 for fiscal year 2007, which shall 
     remain available until expended, to carry out this section.
       ``(2) Fine.--An alien who files an application for 
     adjustment of status to lawful permanent residence under this 
     section (except for an alien under 18 years of age) shall pay 
     a fine equal to $1,000.
       ``(3) Fee.--Annual processing fee of $50.
       ``(4) Immigration examinations fee account.--Of the amounts 
     collected each fiscal year under paragraphs (2) and (3), the 
     Secretary of Homeland Security shall deposit--
       ``(A) $10,000,000 into the General Fund of the Treasury, 
     until an amount equal to the amount appropriated pursuant to 
     paragraph (1) has been deposited under this subparagraph; and
       ``(B) the remaining amount into the Immigration 
     Examinations Fee Account established under section 286(m).
       ``(5) Use of amounts collected.--Of the amounts deposited 
     into the Immigration Examinations Fee Account under paragraph 
     (4)(B)--
       ``(A) such amounts as may be necessary shall be available, 
     without fiscal year limitation, to--
       ``(i) the Secretary of Homeland Security to implement this 
     section and to process applications received under this 
     section; and
       ``(ii) the Secretary of Homeland Security and the Secretary 
     of State for administrative and other expenses incurred in 
     connection with the review of applications filed by immediate 
     relatives of aliens applying for adjustment of status under 
     this section; and
       ``(B) any amounts not expended under subparagraph (A) shall 
     be available to the Secretary of Homeland Security to improve 
     border security.
       ``(n) Rulemaking.--
       ``(1) In general.--Not later than 120 days after the date 
     of the enactment of the Orange Card Program, the Secretary of 
     Homeland Security shall issue regulations to implement this 
     section.
       ``(2) Application processing procedure.--The regulations 
     issued under paragraph (1) shall include a procedure for the 
     orderly, efficient, and effective processing of applications 
     received under this section. Such procedure shall require the 
     Secretary of Homeland Security to--
       ``(A) permit applications under this section to be filed 
     electronically, to the extent possible; and
       ``(B) allow for initial registration with fingerprints of 
     applicants to be followed by a personal appointment and 
     completed application.''.
       (2) Table of contents.--The table of contents is amended by 
     inserting after the item relating to section 245A the 
     following:

``Sec. 245B. Access to earned adjustment.''.

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to have 
printed in the Record a list of organizations across the country that 
support this amendment.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     ACORN
     Acercamiento Hispano de Carolina del Sur
     The American-Arab Anti-Discrimination Committee
     American Friends Service Committee, Miami
     Asian American Justice Center
     Asian Americans for Equality
     Association of Mexicans in North Carolina (AMEXCAN)
     CASA of Maryland, Inc.
     Cabrini Immigrant Services, New York City
     Center for Community Change
     The Center for Justice, Peace and the Environment
     Center for Economic Progress
     Center for Social Advocacy
     Central American Resource Center/CARECEN--L.A.
     Centro Campesino Inc.
     Church World Service Immigration and Refugee Program
     Coalition for Asian American Children and Families (CACF)
     Coalition for Humane Immigrant Rights of Los Angeles (CHlRLA)
     Coalition for New South Carolinians
     Committee for Social Justice in Colombia
     Community Wellness Partnership of Pomona
     Day without an Immigrant Coalition
     Dignity Through Dialogue and Education
     Dolores Mission Church, Los Angeles
     Eastern Pennsylvania Conference of the United Methodist 
         Church
     El Centro Hispanoamericano
     El Centro, Inc.
     Empire Justice Center
     En Camino, Diocese of Toledo
     FIRM (Fair Immigration Reform Movement)
     Family & Children's Service
     Fann Ayisyen Nan Miyami/Haitian Women of Miami, Inc.
     The Farmworker Association of Florida Inc.
     Farmworkers Association of Florida
     Filipno American Human Services, Inc. (FAHSI)
     Florida Immigrant Advocacy Center
     Florida Immigrant Coalition
     Friends and Neighbors of Immigrants
     Fuerza Latina
     Fundacion Salvadorena de la Florida
     The Gamaliel Foundation
     Georgia Association of Latino Elected Officials (GALEO)
     Guatemalan Unity Information Agency
     Haiti Women of Miami

[[Page 9075]]

     HIAS and Council Migration Service of Philadelphia
     Heartland Alliance
     Hebrew Immigrant Aid Society (HIAS)
     Hispanic American Association
     Hispanic Coalition Corp.
     Hispanic Directors Association of New Jersey
     Hispanic Federation
     Hispanic National Bar Association
     Hispanic Women's Organization of Arkansas
     Holy Redeemer Lutheran Church, San Jose, CA
     Idaho Community Action Network
     Illinois Coalition for Immigration and Refugee Rights
     Immigration Equality
     Immigrant Legal Resource Center
     Interfaith Coalition for Immigrant Rights, California
     Interfaith Coalition for Worker Justice of South Central 
         Wisconsin (ICWJ)
     The Interfaith Council for Religion, Race, Economic and 
         Social Justice, San Jose, CA
     Intl. Association of Bridge, Structural, Ornamental and 
         Reinforcing Iron Workers, Miami
     International Immigrants Foundation
     International Institute of Rhode Island
     International Social Work Organization-University of Maryland 
         School of Social Work
     Institute of the Sisters of Mercy of the Americas
     Irish American Unity Conference
     Irish Apostolate USA
     Irish Immigration Center
     Irish Immigration Pastoral Center, San Francisco
     Irish Lobby for Immigration Reform
     ISAIAH, Twin Cities and St. Cloud Regions, MN
     Kentucky Coalition for Comprehensive Immigration Reform 
         (KCCIR)
     Korean American Resource and Cultural Center, Chicago, IL
     Korean Resource Center, Los Angeles, CA
     JUNTOS
     Jesuit Conference
     Jewish Council For Public Affairs
     Joseph Law Firm, PC
     LULAC
     Labor Council for Latin American Advancement, LCLAA
     Lahore Foundation, Inc.
     Latin American Immigrants Federation Corp.
     Latin American Integration Center, New York City
     Latino and Latina Roundtable of the San Gabriel Valley and 
         Pomona Valley
     Latino Leadership, Inc.
     Latinos en Accion de CCI, a chapter of Iowa Citizens For 
         Community Improvement
     Law Office of Kimberly Salinas
     League of Rural Voters
     Lutheran Immigration and Refugee Service (LIRS)
     Lutheran Office of Governmental Ministry in New Jersey
     MALDEF
     Make the Road by Walking
     Mary's Center for Maternal and Child Care
     Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA)
     Medical Mission Sisters' Alliance for Justice
     Michigan Organizing Project
     Migrant Legal Action Program
     Minnesota Advocates for Human Rights
     Minnesota Immigrant Freedom Network
     The Multi-Cultural Alliance of Prince George's County Inc.
     Nashville Area Hispanic Chamber of Commerce
     National Advocacy Center of the Sisters of the Good Shepherd
     National Association of Latino Elected and Appointed 
         Officials (NALEO) Educational Fund
     National Capital Immigration Coalition (NCIC)
     National Council of Jewish Women
     National Council of La Raza
     National Employment Law Project
     National Farm Worker Ministry (NFWM)
     National Immigration Forum
     National Korean American Service & Education Consortium, Los 
         Angeles, CA
     Nationalities Service Center
     Nebraska Appleseed Center for Law in the Public Interest
     Neighborhood House at The Paul & Sheila Wellstone Center for 
         Community Building
     Neighbors Helping Neighbors
     NETWORK--A National Catholic Social Justice Lobby
     New York Immigration Coalition
     Northwest Federation of Community Organizations
     ONE Lowell, Lowell, MA
     Office for Social Justice, Catholic Archdiocese of St. Paul/
         Minneapolis
     Organization of Chinese Americans (OCA)
     Pennsylvania ACORN
     Pennsylvania Immigration and Citizenship Coalition (PICC)
     People For the American Way (PFAW)
     Pilsen Neighbors Community Council
     Pineros y Campesinos Unidos del Noroeste (PCUN)
     Presbyterian Church (USA), Washington Office
     Project HOPE
     Project for Pride in Living
     Proyecto Pastoral at Dolores Mission
     Rockland Immigration Coalition
     Rural Coalition/Coalicion Rural
     S & G Enterprises
     Service Employees International Union (SEIU)
     SEIU Florida Healthcare Union
     SEIU Local 32BJ
     Seattle Irish Immigrant Support Group
     Society of Jesus, New York Province
     South Asian American Leaders of Tomorrow
     Spanish Community of Wallingford, Inc.
     Tennessee Immigrant & Refugee Rights Coalition (TIRRC)
     UJA-Federation of New York
     UN DIA (United Dubuque Immigrant Alliance)
     UNITE HERE!
     U.S. Committee for Refugees and Immigrants (USCRI)
     Unite for Dignity for Immigrant Workers Rights, Inc.
     United Church of Christ, Justice and Witness Ministries
     United Farm Workers, Miami
     United Food and Commercial Workers
     United Methodist Church, General Board of Church and Society
     United Methodist Hispanic Ministries of North Alabama
     Virginia Justice Center for Farm and Immigrant Workers
     Washington Citizen Action
     We Count!
     Westchester Hispanic Coalition
     Westside Community Action Network Center (Westside CAN 
         Center)
     The Workmen's Circle/Arbeter Ring
     YKASEC--Empowering the Korean American Community, New York, 
         NY
     Yee & Durkin, LLP

  Mrs. FEINSTEIN. Mr. President, let me state why I think the Hagel-
Martinez compromise is not workable. The Hagel-Martinez compromise 
essentially creates three tiers of people in this country in 
undocumented or illegal status. The first is 6.7 million who have been 
here more than 5 years; the second is 1.6 million who have been here 
less than 2 years; and the third is 2.8 million who have been here from 
2 to 5 years. People here less than 2 years are subject to immediate 
deportation. Someone has to find them, go into their workplace or their 
homes, pick them up, and deport them. Then one has to consider the 
likelihood that in about 3 days, which is often the case in California, 
they will come back to their families and their job.
  The second is the 2.8 million who must leave, touch back, get in a 
guest worker program or some other visa program, come back, be in this 
country, and then, after a period of time, get an employer to sponsor 
them for a green card or leave. They have a kind of mandatory 
departure. The guest worker program they would be eligible for is the 
H-2C program, which we reduced in size from 325,000 to 200,000 in an 
earlier amendment. The cap of the program is removed for them. 
Therefore, what is created for this group is a 3 million-person guest 
worker program, but they cannot earn a path to legalization unless they 
have an employer who will petition for them. They are limited in the 
time they can stay in the country, and they must return.
  My sense, based on the reality of the largest immigration State in 
the Union, is that these two tiers in Hagel-Martinez simply will not 
work. We will have large-scale fraud. The people here slightly less 
than 2 years will present fraudulent documents to show they have been 
here for at least 2 years. That is what happens now. There is a wide 
market in fraudulent documents for the undocumented. And those here 
less than 5 years will shortly realize that when they have to go back 
they face a precarious situation of whether they can come back legally. 
If they can't come back legally, I hazard a guess they will come back 
and find a way to come back illegally. That is a major problem.
  What we have tried to do is create a program, based on McCain-
Kennedy, and to an extent on Hagel-Martinez, saying let's be realistic, 
let's understand what the situation is, that there is no way it is good 
to create another illegal class of up to 4.4 million people. It does 
not make sense to spend the time trying to seek out people living 
clandestinely.
  It is much better to create the process for earned legalization which 
has some meaning and substance, and tests that individuals must pass. 
So we have created a three-step test for something we would call an 
orange card. That orange card is like this chart. I picked a color that 
had no political connotation. This is a biometric card. It has

[[Page 9076]]

the personal identifiers. It has the photo. It has the fingerprints. It 
has a number. Once someone has the orange card, that number, 
essentially, places them in a line. The line would begin with those 
people here the longest. They have the lowest numbers. Therefore, when 
the current green card line of 3.3 million people is expunged--
estimated to take 6 to 11 years--the people here the longest in the 
undocumented status are the first to receive their green card.
  In the meantime, this would be the identifier. It is biometric. It 
enables an individual to move in and out of the country, and the 
individual reports electronically every year with their work history. 
They will pay a $50 processing fee. They will pay a total $2,000 fine 
by the time they reach green card status. They will show they are 
trying to learn English. They will present their work history. To me, 
it makes better sense because it is able to be managed.
  The Hagel-Martinez amendment is not able to be managed 
electronically. Therefore, we have 4.4 million people, plus the 
remainder of the 10 to 12 million people that you have to handle. It is 
extraordinarily complicated and difficult to do that.
  The system was created with good intentions, but I don't believe it 
is workable. I believe it is subject to fraud. I believe the most 
difficult part of it is the guest worker part for those who have been 
here 2 to 5 years. Under Hagel-Martinez, if you are here for 4 years 
and 9 months, you are 3 months shy of earning legalization. These 3 
months cost you the ability to get on a clear path to legalization. 
With those stakes and no formal documentation that proves when you 
cross the border, it is only logical to assume that people are going to 
try to falsify dates in order to qualify for the higher tier. This 
becomes the bureaucratic nightmare.
  Then there is the problem for the 2-to 5-year person, of returning to 
their own country, getting into a legal program and coming back. I 
pointed out this makes the guest worker program 3 million people 
because the 200,000 cap is waived, and therefore the 2.8 million come 
into that program. That is way too many guest workers for any one time.
  Then there is the mandatory departure part of the guest worker 
program, which essentially says an individual, once in the country, can 
only be here for 6 years and then must return to their own country 
unless an employer will sponsor them for a green card. This in itself 
might appear to be a good thing, but I want to spend a minute on it. 
You are dependent on your employer for your legal status after that 
point. This is a huge burden for an employer to bear. It also means 
that for some employers that may not be good employers, they have a 
method to exploit an individual by threatening that, unless they do 
certain things, they will not recommend them for the earned 
legalization program and for their green card.
  We know exploitation does happen. I believe the best step is clearly 
to put forward a process for everyone in this country, a process that 
allows you to electronically submit your data, fingerprints, photo, and 
work history. That is then verified. You then come in. If the 
verification of your criminal history is adequate, if you pay the fine, 
and if you are willing to sign up for the orange card, then you receive 
it. Therefore, you have your biometric identifier, and you can be 
tracked, if necessary. You are free to leave the country and come back. 
It is a much sounder path to legalization.
  I hope this will be the program that eventually is accepted.
  I now yield time to the Senator from Iowa, my distinguished 
colleague, Mr. Harkin. I believe he has asked for 5 minutes, or such 
time as he may consume.
  Mr. HARKIN. Up to 10 minutes.
  Mrs. FEINSTEIN. I yield up to 10 minutes to the Senator from Iowa.
  Mr. HARKIN. I commend and compliment my distinguished colleague from 
California for presenting this amendment.
  I wonder if I might engage in a little colloquy with the author of 
this amendment. I am proud to join her as a cosponsor because this is 
the way we have to go.
  I was interested in the pie chart that showed the 4.4 million, if I 
added it correctly, the people here less than 2 years and those here 2 
years to 5 years. All of those people have to leave the country?
  Mrs. FEINSTEIN. Correct.
  Mr. HARKIN. Under Hagel-Martinez?
  Mrs. FEINSTEIN. Correct.
  Mr. HARKIN. Some will leave and can't come back and some will 
petition to come back?
  Mrs. FEINSTEIN. That is correct.
  Mr. HARKIN. I ask my friend, how are they going to deal with 
families? Many of these people who have been here 2 to 5 years, maybe 
some less than 2 years, may have gotten married, maybe they brought 
their spouse along with them, and there are children. I have come 
across some myself. What will happen to these children who have been 
born here who are American citizens?
  Mrs. FEINSTEIN. That is exactly the point. It is a theoretical plan.
  For those who live in big immigration States, who live this problem 
daily, who see the people and their families--many have bought homes, 
pay taxes, their children are born here and go to school here--it 
creates a dynamic which puts the Federal Government again in the place 
of having to find and deport 1.6 million people; and then if the 2.8 
million don't follow the mandatory departure section of the program, 
they are subject to deportation.
  Mr. HARKIN. If I could pursue that a minute longer, again, 
contemplating the breakup of families, I ask my friend from California, 
wouldn't that also then make it even more difficult, harder or less 
likely that these people would come forward. If they know their 
families may be split up or they might have to leave their children 
behind and in the care of someone else, why would they come forward?
  Mrs. FEINSTEIN. The Senator is exactly right. The dynamic to add to 
that is, you create a work differential because these people will 
continue to be clandestine, embedded in the cultures of our country, 
and find ways to work, and employers, as they have in the past, will 
hire them. Then we will be faced with carrying out a program that has 
never worked and that is employer-sanctioned.
  Mr. HARKIN. I thank my colleague from California for offering this 
amendment.
  Quite frankly, the amendment offered by Senator Feinstein is the only 
way I see that we can get out of the mess we are in, so to speak, with 
all of the undocumented people here, in a way that is pro-family, pro-
worker, pro-American, pro-national security.
  The amendment offered by the Senator from California meets all of 
those requirements. It will cost a heck of a lot less, just in terms of 
dollars.
  While I respect the efforts by Senators Hagel and Martinez and others 
to craft some sort of compromise, the fact is the Hagel-Martinez bill 
will be difficult, costly to implement, will tend to separate families 
and will not be in the best interests of our country.
  Quite frankly, as the Senator from California just pointed out, we do 
not even know if it is workable. How are you going to find these 
people? As the Senator so aptly pointed out, people who have been here 
just shy of 2 years, by a month, aren't they going to find some 
documentation, forging rent receipts, and things like that, to make it 
seem as though they have been here at least 2 years? And those who have 
been here 3 to 5 years, won't the same thing happen there also?
  The Hagel-Martinez compromise is totally unworkable. By contrast, the 
approach taken by Senator Feinstein to create a new kind of an orange 
card--because this is a unique group of people--this orange card is 
realistic, and it is enforceable, and it is fair. It would require 
undocumented immigrants, as the Senator said, to register immediately 
with the Department of Homeland Security. Once they have passed a 
criminal and national security background check, they could apply for 
an orange card.
  As the Senator said, they would have to pay a $2,000 fine, any back 
taxes

[[Page 9077]]

owed, learn English and American civics, and pass extensive criminal 
and security background checks. Then, after working for at least 6 
years, orange card holders could apply for legal permanent residence, 
but, again, as the Senator pointed out, they would have to get in back 
of all the green card holders who are existent right now. So, again, 
this is a tough approach, but it is workable. It will work. It is fair. 
And, as I said, it will cost a lot less money and a lot less manpower 
to implement.
  I think, as the Senator from California said, we just have to deal 
with reality, what is real. Twelve million undocumented immigrants, 
many who have lived here for many years, have children, family members 
who are U.S. citizens. They are working. They are contributing to 
society. They may be undocumented. They may be living in the shadows. 
But, make no mistake about it, they are de facto members of the 
American economy and the American society. They are integrated into the 
fabric of our national life. They are filling jobs that in many cases 
would otherwise go unfilled.
  In essence, they are a part of our American family. And they are not 
going away. In fact, we would face huge problems if they did. Just last 
week, I say to my friend from California, a delegation from the 
Marshalltown, IA, Chamber of Commerce was in town. Several of them 
pointed out that immigrants play an indispensable role in the 
Marshalltown economy. As one put it: If you rounded up and kicked out 
all the immigrants, our city's economy would come to a screeching halt.
  I say to my friend from California, I was in Denison, IA, on Friday. 
There is a Job Corps center there. It is a small-town community in 
western Iowa. They have a couple meatpacking plants there. So we have a 
lot of Latinos who come in from Mexico, El Salvador, Honduras, 
Guatemala, places like that. The mayor took me aside and he said: I 
want to talk to you about immigration. I didn't know which side he was 
coming from. He said: I just wanted to let you know how important it is 
to Denison that you resolve this in a fair and equitable manner. He 
said: We have people here who have bought homes that were abandoned. 
People have left town because the town was kind of dying out. They 
bought these homes. They fixed them up.
  Then he told me something very interesting. He said: A lot of Latinos 
have taken over small businesses on Main Street. They are operating 
these small businesses that were going out of business. He said: If you 
want an answer to Wal-Mart, here is your answer to Wal-Mart. He said: 
They are actually running businesses on Main Street in Denison. He 
said: I know for a fact that many of them are undocumented aliens. He 
said: We cannot afford to lose them.
  So it is not just in the big cities, I say to my friend--Los Angeles 
and San Francisco--but in the small towns and small communities of 
rural Iowa that would be drastically affected by the Hagel-Martinez so-
called compromise.
  Most of these new immigrants have found work, but they have not found 
freedom. This spring, at United Trinity Methodist Church in Des Moines, 
IA, I met with a group of new immigrants, and I asked how many of them 
were undocumented. I looked around. They didn't know whether to raise 
their hand, and finally they decided, OK, they would. I would say 
probably a third of them were undocumented. They are living in the 
shadows. They live in fear. Many pay taxes. They make Social Security 
payments, but they receive nothing in return.
  They want to become loyal, contributing American citizens, to pursue 
the American dream. But, instead, they are living an American nightmare 
of anxiety and exclusion and exploitation. One young girl there was 18 
years old, just graduating from high school, who wants to go on to 
college. They have no money. Her folks work. They have a modest income. 
We know what college tuitions are like. She came here as a 3-year-old 
when her folks fled the strife in El Salvador. She is now 18. She is 
undocumented. She has no papers. She cannot get any loans to go to 
college. She cannot get any college aid or anything else to help her 
through. She just wants to be a good American citizen. What about her? 
What are we going to do about people like that?
  So it is time to find a constructive and positive way to bring these 
people out of the shadows and into the sunshine. The Feinstein 
amendment does it. It establishes a legal framework, where people can 
learn English. They have to learn English. They have to pass security 
background checks, pay the fines and penalties, and can earn the right 
to eventually become U.S. citizens.
  The ACTING PRESIDENT pro tempore. The Senator has used 10 minutes.
  Mrs. FEINSTEIN. Mr. President, I yield 2 additional minutes to the 
Senator.
  Mr. HARKIN. I thank my friend from California.
  Again, the orange card program will increase participation by 
decreasing fear. More people will come forward because fewer families 
will be separated. They will become full participants. It is pro-
family, pro-work, pro-American, pro-national security.
  Let me close by saying one personal thing. My mother came to this 
country as an immigrant. I have the documentation when she came to this 
country. Was she legal? Well, I don't know. She came on a boat with a 
lot of other people--steerage class. They landed in Boston. They could 
not get into New York because of a storm. They landed in Boston. She 
had $7 in her pocket and a one-way train ticket to Des Moines, IA. Yet 
she became a fully contributing member of our American community. Later 
on she became a citizen.
  So when I see our new immigrants, and I look into their face, I see 
the face of my mother. Why do we have an immigration problem in 
America? Because people want to come here. They want to work. They love 
America. They love our freedoms. They love our society and the 
opportunities that it presents.
  This is not the time to go to some convoluted thing such as the 
Hagel-Martinez amendment, which is going to make the mess even messier. 
It is going to make it even worse. Let's clear it up once and for all, 
in a fair and equitable manner. And the only way to do that, I submit, 
is with the Feinstein amendment.
  I thank the Senator from California for coming up with this 
amendment. I am proud to be her cosponsor.
  Mrs. FEINSTEIN. Mr. President, how much time do I have remaining?
  The ACTING PRESIDENT pro tempore. The Senator has 6\1/2\ minutes 
remaining.
  Mrs. FEINSTEIN. Mr. President, I would like to reserve the remainder 
of my time. But I would like to also thank the Senator from Iowa. I 
think he showed, particularly speaking from the heartland of our 
country--a much smaller State than California--how much a local economy 
depends on this workforce. I think that is really important to 
understand.
  I remember speaking--and I would like the Senator to know this--with 
Doris Meissner. She was the head of the U.S. Immigration and 
Naturalization Service, and I think a very good commissioner. She said: 
Whatever you do, make it simple. Make it enforceable. That is the key 
where we go astray with this because you cannot enforce it, basically. 
Good luck finding all of these people subject to immediate deportation. 
It is impossible. You cannot deport 1.6 million people. And then to 
expect the other 2.8 million are going to go home and touchback within 
3 years is an unrealistic expectation.
  So I hope somehow people will actually read the bill and understand 
the devil is in details of the language as to whether it can be carried 
out. I think the Senator from Iowa said it very eloquently, and I thank 
him for that.
  I reserve the remainder of my time.
  Mr. President, I ask unanimous consent that the time begin to run on 
the other side.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. FEINSTEIN. Mr. President, may I be clear as to what I just asked 
unanimous consent for: that the Presiding Officer allows the time 
against the amendment to run, and I reserve the remainder of my time.

[[Page 9078]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. FEINSTEIN. I thank the Chair. I appreciate it.
  Mrs. BOXER. Mr. President, currently, 10 to 12 million workers are in 
this country illegally living in the shadows. Of those, approximately 
24 percent or 2.5 to 3 million undocumented immigrants are living in 
California.
  Many of these people are longtime residents, hard workers, and with 
American-born children. They are the parents of children in your 
school. They are members of your community whom you know and respect.
  Any comprehensive immigration reform bill must address the plight of 
undocumented workers currently in the country. Unfortunately, the 
current provision in the bill is not rational and could leave millions 
of individuals without relief and forced to hide.
  Under the three-tier process created by the Hagel-Martinez 
compromise, undocumented immigrants here less than 2 years are subject 
to deportation, and those here from 2 to 5 years must return to their 
country and seek reentry under a guest/worker program.
  It is estimated that these tiers would apply to nearly 5 million 
people--that means approximately a million residents of California 
would either face voluntary departure or deportation.
  Families would be broken apart and industries disrupted as workers 
are forced to leave or go into hiding. California cannot afford and 
most of its residents do not support the convoluted Hagel-Martinez 
approach.
  That is why I was pleased that my colleague, Senator Feinstein, has 
proposed a much more practical and humane approach in her orange card 
program.
  Under the program, all undocumented immigrants who are in the United 
Stats as of January 1, 2006, would be eligible to get on a path to 
legality. They would be required to pass criminal and national security 
background checks, demonstrate an understanding of English and U.S. 
history and Government, have paid their back taxes and pay a $2,000 
fine.
  Moreover, orange card holders would have a continuing obligation to 
work, pay their taxes, and not to engage in criminal activity.
  The Feinstein orange card program establishes a realistic approach to 
dealing with the 10 to 12 million undocumented workers currently in the 
country. In conjunction with her AgJOBS amendment, Senator Feinstein 
has addressed two of the most important aspects of the comprehensive 
immigration reform bill.
  I urge my colleagues to vote for the Feinstein amendment. It is a 
workable solution to a difficult problem.
  The PRESIDING OFFICER (Mr. DeMint). The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I want to speak briefly on the overall 
bill and the progress we are making to date. And then I want to 
address, briefly, the Feinstein amendment.
  I have great regard for the Senator from California. She is one of 
the top authorities in the Senate on immigration. She has dealt with 
this topic for many years, and in a very practical way she has dealt 
with it, and in a very knowledgeable way she has dealt with it.
  We are making great progress on getting a comprehensive, bipartisan 
immigration bill through the U.S. Senate. Everybody is not going to 
agree with this bill at the end of the day, but it has been a delight 
to see the body work and to see us go on amendments--a Republican 
amendment might pass or fail, a Democrat amendment might pass or fail. 
We are really legislating and building a coalition, and I think 
building a vote total that, at the end of the day, will pass a strong 
bill. I think that is to the credit of the country, and I think it is 
to the credit of the body.
  I oppose the Feinstein amendment, even though I have great respect 
for my colleague from California and her knowledge and ability and the 
practical impact of this on her State. I have opposition to it because 
I think it slows us down and possibly really disrupts us from being 
able to get a comprehensive bill through the body. We have worked to 
craft a delicate compromise that--it is my hope--could pass 
substantially in cloture, get well over 60 votes on final passage.
  A key part of that coalition and building has been the Hagel-Martinez 
compromise, that makes the distinctions between if you have been here 
more than 5 years or if you have been here less than 2 years. That has 
been something where a number of people have said: OK, it is difficult 
to work in practice, but it makes some sense to me. It also makes some 
sense on the amount of roots you have put into this country. It makes 
some sense to me about if you have just come in the last 2 years and 
you are just trying to jump in over the line as things change.
  If you break that compromise, I think you break the momentum in 
passing the bill, and I would not doubt that you break the ability for 
us to pass the bill. I think the Senator from California has some real 
issues that she raises. I think they are important issues she raises. I 
think there are key things for us to consider. But at the end of the 
day, I think it causes the bill to fail, and I do not think that is a 
useful thing for us to do--having invested the quantity of time we have 
in this bill, having the importance of this bill, and having it as the 
No. 1 topic across the country--for us now to adopt an amendment that I 
believe has the clear possibility of failing the whole bill and pulling 
the whole bill under.
  For those reasons, with high regard for the Senator from California 
and her work, and with real recognition of the practicality of the 
issues she is dealing with, I oppose the Feinstein amendment. I hope 
that my colleagues will oppose it, and we can move forward toward 
closing the debate with a strong vote on final passage.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Mr. President, I would like to speak for 5 minutes in 
opposition to the Feinstein amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MARTINEZ. Following on the remarks of the Senator from Kansas, I 
have to agree with an awful lot of what he said. We came to this bill 
in a situation where it was a good concept. It had some obvious, 
positive qualities to it, but it was also a bill that was not gaining 
the favor of the vast majority of the Members of the Senate. In order 
for it to be successful, we had to tweak it. We had to find a way in 
which we could thread the needle, strike a balance, a way in which we 
could somehow bring more people to the table in understanding what it 
is that we were trying to do.
  We came together and found a way of doing so by simply not treating 
everyone who was here the same. We talk about a group of 11 million 
people in our country illegally today. It was apparent that all of 
those people were not in the same situation. Some have been here for a 
number of years, well established, sometimes owning a home, certainly 
having a steady job, children who were probably by now United States 
citizens, having been born here. For the sake of family unity, we felt 
it was important to treat people who had been here a longer period of 
time differently than more recent arrivals.
  Senator Hagel and I came up with a concept of having a 5-year 
dividing line where those who have been here more than 5 years would be 
treated one way and those who had been here less would be treated a 
slightly different way. The requirement was that those who had been 
here less than 5 years would be divided in two different ways--those 
who have been here less than 5 years who might have come here with the 
expectation that there would be some immigration bill. The date was 
selected around the time the President first spoke on this issue of 
comprehensive reform. We settled on the idea that those who had been 
here 2 years or less would not be able to benefit from this bill, but 
that those who had been here between 2 and 5 years should be given an 
opportunity. We would require that they reenter the country, that they 
would have a legal entry into the country, but understanding that all 
the other categories or steps that were appropriate for those who had 
been here 5

[[Page 9079]]

years they would also have to meet before obtaining a path to 
regularization, to being here legally, and then, ultimately, to live 
the American dream to its fullest extent by becoming citizens of this 
country.
  Not every immigrant who crossed the southern border intended to 
become an American. We could not treat everyone the same. People who 
have been here 10, 15 years certainly have a very different situation 
than those who have been here 3 years. A lot of times single men will 
come to work for a period of time, having no intention of being here 
for an extended visit.
  At the end of the day, what we have to understand is that we are now 
at the crossroads where this bill is about to be completed. This bill 
is moving along in a very positive way with support from both sides of 
the aisle, which makes an even stronger statement. As we move forward 
to do that, this amendment will take us a step back. This would bring 
us back to a time when we didn't have consensus, to a time when we were 
not all pulling in the same direction, and to a time when we didn't 
have what we have demonstrated, the support of as many as 66 Members of 
this body to defeat some of these amendments that would have taken the 
bill in a different direction, that would have taken us from 
comprehensive reform to something different.
  So for those folks who have been here 2 to 5 years, we want to give 
them a path to regularizing themselves in this country. But also we 
have to understand that their situation is different than those who 
have been here for a long time.
  I appreciate the effort of the Senator from California to do what I 
know in her heart she believes is fair. I do understand the 
difficulties. I don't want to be Pollyannish about it. This is a very 
difficult concept to implement. When the time comes, we must try. We 
are putting a lot of employment enforcement into this bill which will 
make it possible for this to be worked out. Without any idea that this 
is going to be easy to do, I do believe that there is a practical 
reason. It was a way for us to reach a resolution of how to deal with 
this country's population of illegal immigrants, which is a group of 
people the size of those people who live in the State of Pennsylvania.
  I believe with ample protections to all, understanding the 
difficulties that may come about in the implementation, that we have to 
go forward and move ahead with the concept that has brought this body 
together, the concept that had the favor of the President. The 
President, when he spoke on this a week ago, clearly stated that, in 
fact, he favored the idea of creating a difference between the groups 
of people as they have arrived in this country and the length of time 
they have been here.
  I urge Members of the Senate not to support the current amendment but 
to stick with the concept that has worked so far, the concept that has 
pulled us together. I believe if we do that, we will be very close to 
final resolution of this bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to add the 
names of Senators Durbin and Obama as cosponsors of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 5 minutes.
  Mrs. FEINSTEIN. My understanding is Senator Kennedy has 10 minutes. 
Would the Senator like to use that time now?
  Mr. KENNEDY. That would be fine.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank the Senator from California for 
her amendment. It does, for the reasons she has outlined and that I 
will address briefly, seem to be a constructive and positive way to go. 
It effectively moves us back to what was originally the legislation 
that Senator McCain and I introduced. I was enthusiastically in support 
of it because it achieves what we are trying to do in terms of earned 
legalization. In terms of simplicity and legality for those people who 
are here, that is the preferable way to go.
  Since that time, as the Senate has worked its will, the Martinez-
Hagel amendment has come in and, as has been outlined, establishes a 
tier system. It recognizes that those who are here for over 5 years 
will be able to have the earned legalization which many of us support--
strong bipartisan support. Those who are here for just 2 years will be 
deported, and those from 2 to 5 will have to return and follow a 
different pathway in terms of earning citizenship. That is 
administratively more complicated and difficult and puts additional 
burdens on Homeland Security.
  One of the basic concepts behind the legislation was to try to move 
people out of the shadows. This is going to move us back into creating 
a situation where a number of people will be back in the shadows. It 
does move us in a direction that I would not have hoped we would move. 
But frankly, this is the legislative process. The legislative process 
has brought us to where we are today. The underlying legislation is a 
good product and an important product which will mean a significant and 
important change in the opening of opportunity for people who are here, 
who want to work hard and pay a fine, pay their back taxes, play by the 
rules and become a part of the American dream.
  I am enthusiastic for the underlying legislation which includes the 
Hagel-Martinez amendment. I will say that the Feinstein amendment is 
basically, in fact, what Senator McCain and I had originally hoped for. 
It is difficult for someone like myself to argue against it. It makes 
sense. But as legislative proceedings go, at least as far as I am 
concerned, you are sort of stuck with where you are in terms of the 
process.
  I thank the Senator from California for again raising an issue which 
is a matter of enormous importance. And her reasons are excellent, as 
she outlined in her comments. I am sympathetic to that. If the 
Senator's amendment is not successful, we still have a very strong 
bipartisan document which will deserve to move ahead in this process.
  I retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, how much time remains under my control?
  The PRESIDING OFFICER. The Senator has 9 minutes.
  Mr. SPECTER. I yield 4 minutes to the Senator from Texas, Mr. Cornyn.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I rise to oppose the pending amendment. It 
is interesting how causes line up. I find myself critical of the Hagel-
Martinez compromise. I also find myself in agreement with the diagnosis 
of the Senator from California that the tiered method of trying to 
divide up the undocumented population will result in rampant fraud, 
just as it did in the post-1986 amnesty. But while I agree with her on 
the diagnosis, I don't agree with her prescription. The prescription, 
the alleged cure for the diagnosis, is that basically we throw up our 
hands and say that we cannot enforce the law. We can't secure our 
borders. We can't verify eligibility to work at the work site. We can't 
sanction employers who cheat. So we have to let anyone and everyone who 
has come to the United States, either in violation of the law or 
legally and overstayed, get basically the best gift that America can 
confer, and that is legal permanent residency and American citizenship 
and to jump in line ahead of those who have waited patiently outside 
the country and revisit the mistakes of 1986 when amnesty was tried.
  I have two articles from the New York Times, one dated June 18, 1989 
and one dated November 12, 1989. I ask unanimous consent that these be 
printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibits 1 and 2.)
  Mr. CORNYN. The June 18 article says:

       The most sweeping effort to halt illegal immigration in 
     American history, the 1986

[[Page 9080]]

     overhaul of immigration law, may have cut the flow of illegal 
     aliens less than expected and may have actually encouraged 
     unlawful entry in several ways.

  It quotes a professor Wayne Cornelius, director of the Center for 
U.S.-Mexican Studies at the University of California in San Diego:

       We found no evidence that the 1986 immigration law has shut 
     off the flow of new undocumented migrants.

  The article, dated November 12, 1989, includes a quote from the 
junior Senator from New York, who was then serving in the House of 
Representatives. It says:

       Representative Charles E. Schumer, a Brooklyn Democrat who 
     was an author of this Special Agricultural Worker provision, 
     said that in retrospect the program seemed ``too open'' and 
     susceptible of fraud. But he argued that the budget decisions 
     had made the battle to combat fraud more difficult.

  In other words, alluding to the fact that notwithstanding the policy 
decisions made by Congress in 1986, that, in fact, it was the failure 
to actually finance and implement the policy for work site verification 
and employer sanctions that contributed to the ineffectiveness of the 
1986 amnesty.
  I hope we will learn from the mistakes of the past and are not 
condemned to relive them with this bill. But I do agree with my 
colleagues, Senator Kennedy, Senator Specter, the chairman of the 
Judiciary Committee, Senator Martinez and others, that while the 
Senator from California is absolutely correct in her diagnosis, this 
sets us up for a repeat of massive fraud. The prescription she 
recommends is not well advised.
  I yield the floor.

                               Exhibit 1

                [From the New York Times, June 18, 1989]

         1986 Amnesty Law Is Seen as Failing To Slow Alien Tide

                           (By Roberto Suro)

       Houston, June 17.--The most sweeping effort to halt illegal 
     immigration in American history, the 1986 overhaul of 
     immigration law, may have cut the flow of illegal aliens less 
     than expected and may have actually encouraged unlawful entry 
     in several ways.
       Two years after it began to take effect, experts around the 
     country are starting to draw conclusions about the law's 
     effect. As thousands of people continue to enter the country 
     illegally every day, the first arguments are being entered in 
     a debate over whether the legislation has achieved its goals, 
     and whether it ever will.
       Some in Congress seek more effective enforcement of the 
     law; others want to focus on the poverty and turmoil in the 
     third world that force people out of their homelands. 
     Meanwhile, the Immigration and Naturalization Service has 
     proclaimed the law a clear success, and the Bush 
     Administration has yet to put its own stamp on immigration 
     policy.
       ``We have found no evidence that the 1986 immigration law 
     has shut off the flow of new undocumented migrants,'' said 
     Wayne Cornelius, director of the Center for U.S.-Mexican 
     Studies at the University of California at San Diego.


                           a decade of Study

       The Immigration Reform and Control Act of 1986, whose 
     measures began to take effect in May 1987, was the first 
     nationwide response to a wave of illegal immigration that 
     began in the mid-1960's and created a resident population of 
     illegal aliens variously estimated between 6 million and 12 
     million people.
       After a decade of study and argument in Washington, the 
     1986 law emerged as a mixture of humanitarian and restrictive 
     measures. Unlike the two previous efforts to counter similar 
     waves of illegal immigration in the 1930's and 1950's, there 
     was no resort to mass deportations. The law offered legal 
     status to illegal aliens who had lived in the United States 
     continuously since Jan. 1, 1982, and it imposed penalties on 
     employers who knowingly hired illegal aliens. It also allowed 
     migrant workers to enter the United States during harvest 
     season.
       ``The legislation bought time for everyone and made the 
     problem more manageable for a while,'' said Leonel J. 
     Castillo, who was Commissioner of Immigration and 
     Naturalization during the Carter Administration and is now 
     president of Houston International University. ``It seems, 
     however, that time has passed more quickly than expected, and 
     so it is important to see where we stand, because I think we 
     will be dealing with the issue again soon.''


                           torrents of people

       According to indicators used by the immigration service to 
     estimate traffic across the southern border, this year there 
     will be 1.7 million to 2.5 million crossings. The most recent 
     statistics signal that the flow may have increased in April 
     and May.
       Separate surveys of illegal aliens conducted by researchers 
     based in Mexico, Texas and California all found that 
     immigration by first-time travelers, as against those who had 
     previously been to the United States, has been on the rise 
     for at least a year. Experts also agree that the flow had 
     dropped off through most of 1987. As a result, immigration 
     experts say they have identified a ``wait and see'' response 
     to the law among potential immigrants that may be producing a 
     new wave of illegal immigration.
       Doris Meissner, an expert on immigration for the Carnegie 
     Endowment, a Washington research organization, said, ``There 
     is evidence that many potential immigrants waited for a while 
     to see how the law worked and have since begun moving again. 
     If so, we should see the flow across the border accelerating 
     any day.''


                           a magnet of sorts

       The 1986 law allowed 3.1 million previously illegal aliens 
     to obtain legal status here. Recent studies show that many 
     thousands of people crossed the border surreptitiously to 
     take advantage of the program, some of them with falsified 
     documents and personal histories. The mass of newly legalized 
     immigrants is also acting as a magnet for illegal aliens who 
     want to come to the United States to join friends and 
     relatives.
       A plan to strengthen the Border Patrol was never fully 
     carried out, and experts reach widely differing verdicts on 
     the effectiveness of the sanctions against employers who hire 
     illegal aliens.
       Representative Charles E. Schumer, the New York Democrat 
     who was instrumental in shaping the law's final compromises, 
     said, ``The legislation has had some effect but not close to 
     what it should have been.'' He complained that the Reagan 
     Administration favored passage of the law but never gave the 
     immigration service the resources to enforce it. ``So far, 
     the law really has not been given a fair test,'' he said.
       The current debate over immigration policy is likely to 
     affect not only future law but also foreign policy. After 
     hearings last month on the law's effect, Representative Bruce 
     A. Morrison, a Connecticut Democrat who is chairman of the 
     House Judiciary Committee's Subcommittee on Immigration, 
     Refugees and International Law, said, ``Looking at what's 
     happened the past few years it is increasingly obvious that 
     most of the reasons for illegal immigration are in the 
     countries people are leaving, and that unless those 
     conditions change we may be able to reduce the flow somewhat, 
     but no enforcement scheme will stop the tide.''


                           a lonely assertion

       At those hearings Alan C. Nelson, Commissioner of the 
     I.N.S., argued that a steady decline in the number of people 
     apprehended trying to cross the border ``continues to 
     demonstrate that the law is working and employer sanctions 
     are having the intended effect of reducing illegal 
     immigration.''
       But the immigration service is now virtually alone in 
     asserting that the sanctions have substantially cut the flow 
     of illegal immigrants. Mr. Nelson has said repeatedly that 
     the number of people apprehended on the border has dropped at 
     a rate of 40 percent a year since the law went into effect. 
     But many scholars dispute Mr. Nelson's statistics. Some 
     researchers believe sanctions on employers have cut the flow, 
     but not by 40 percent, and other experts argue the sanctions 
     have had no effect at all.
       The effects of the law are illustrated in the experiences 
     of two recent illegal immigrants.
       A 30-year-old woman from El Salvador said that in February 
     1988 she left home to live illegally in Texas in part because 
     ``my cousin got papers under the amnesty, and so she was able 
     to help me with money and a place to stay and generally in 
     getting around.'' But as a result of the law, she said, 
     ``there is no way to get a good job, because they always ask 
     for your papers.''
       The woman, a secretary in El Salvador, cleans houses in 
     Houston, and although she would like better work here, she 
     said she had no desire to return to the poverty and political 
     violence of her homeland. ``Yes,'' she said, ``it is more 
     difficult to get here and earn money now, but people still do 
     it.'' Like other illegal aliens interviewed, she asked not to 
     be identified.


                            a family asunder

       In the case of another woman from El Salvador, the law had 
     contradictory effects. She arrived here in 1981, qualifying 
     for the amnesty, but her five children, now 10 to 18 years 
     old, arrived too late to be legalized. ``It is a great worry 
     for me,'' she said, ``because my two oldest have graduated 
     from American high school. Their home is with me here, but 
     they cannot get real jobs. What is their future?'' According 
     to the immigration service, 3.5 million to 4 million illegal 
     aliens live in the United States on an established basis, as 
     against 6.5 million to 7 million before passage of the 1986 
     law.
       The drop is accounted for by the number of applicants for 
     the amnesty programs. In effect, the amnesty divided illegal 
     immigrants into those who were suddenly legalized and those 
     who were not, but it did not physically separate these 
     people.
       The immigration service expects that a vast majority of 
     amnesty applicants will receive permanent status as legal 
     residents. If they then become citizens after a five-year

[[Page 9081]]

     waiting period, they will be able to get legal status for 
     their spouses and children.


                           the men were first

       In the meantime, however, the law has created a new and 
     growing category of illegal alien: the relatives of amnesty 
     applicants. Noting that nearly 70 percent of the amnesty 
     applicants are men, Nestor Rodriguez, a sociologist at the 
     University of Houston, said: ``Usually, the men were the 
     first to migrate, and so more of them qualified for the 
     amnesty. Many woman and children who followed along later did 
     not qualify, and certainly the men who were here alone and 
     got papers are now bringing in their families illegally.''
       The effect of the amnesty on illegal immigration goes 
     beyond relatives, however.
       ``Illegal immigrants have a long history of following well-
     established routes,'' said Mr. Castillo, ``and the amnesty 
     program gave those routes a little more solidity. Now, 
     instead of relying on other illegals, a new arrival is likely 
     to know people here who are legal and can offer help with all 
     kinds of things. It's my guess that it will take a generation 
     to break those ties.''
       Mr. Cornelius of the University of California at San Diego 
     conducted extensive surveys of three rural Mexican 
     communities and has concluded, ``There has been no 
     significant return flow of illegals who suddenly found 
     themselves jobless in the United States.'' In the short term 
     at least, he said, the 1986 law ``may have kept more Mexicans 
     in the United States than it has kept out'' because it 
     granted some kind of amnesty to about 3.1 million people.
       Although immigration experts agree that the prohibition on 
     hiring undocumented workers has made it more difficult for 
     illegal aliens to find work here, they differ widely on how 
     much the sanctions on employers have reduced the flow across 
     the border.


                        arrest rates are debated

       Much of the debate over the rate of illegal immigration 
     centers on statistics for the apprehension of aliens along 
     the Southern border because the immigration service uses 
     these figures to support its assertion that the sanctions 
     have been effective.
       Almost all experts dismiss the immigration service view 
     that proof of decreased flow lies in the 40 percent drop in 
     apprehensions each year since 1986. The agency's critics say 
     the number of Border Patrol agents assigned to watch the 
     border also decreased markedly in that time, and so fewer 
     apprehensions were inevitable.
       Also, it is argued that since 1986 the agents remaining on 
     the border have spent more time tracking down drug smugglers, 
     another reason why a decline in apprehension would not 
     necessarily mean there was a drop in the flow of illegal 
     aliens. Yet other researchers insist that a substantial part 
     of the decline in apprehensions is explained by the fact that 
     most of the 3.1 million amnesty applicants can move across 
     the border as they have for years but do it legally.
       Chart of breakdown of legalization applicants and 
     agricultural workers by gender, type of work, age, and state 
     they applied in.
                                  ____


                               Exhibit 2

                [From the New York Times, Nov. 12, 1989]

             Migrants' False Claims: Fraud on a Huge Scale

                           (By Roberto Suro)

       Houston, Nov. 11, 1989.--In one of the most extensive 
     immigration frauds ever perpetrated against the United States 
     Government, thousands of people who falsified amnesty 
     applications will begin to acquire permanent resident status 
     next month under the 1986 immigration law.
       More than 1.3 million illegal aliens applied to become 
     legal immigrants under a one-time amnesty for farm workers. 
     The program was expected to accommodate only 250,000 aliens 
     when Congress enacted it as a politically critical part of a 
     sweeping package of changes in immigration law.
       Now a variety of estimates by Federal officials and 
     immigration experts place the number of fraudulent 
     applications at somewhere between 250,000 and 650,000.
       The Immigration and Naturalization Service has identified 
     398,000 cases of possible fraud in the program, but the 
     agency admits that it lacks both the manpower and the money 
     to prosecute individual applicants. The agency is to begin 
     issuing permanent resident status to amnesty applicants on 
     Dec. 1, and officials said they were approving 94 percent of 
     the applicants over all.
       Evidence of vast abuse of the farm worker amnesty program 
     has already led to important changes in the way immigration 
     policies are conceived in Congress. For example, recent 
     legislation to aid immigration by refugees from the Soviet 
     Union was modified specifically to avoid the uncontrolled 
     influx that has occurred under the agricultural amnesty 
     program.
       Supporters of the farm worker amnesty argue that it 
     accomplished its principal aim of insuring the nation a 
     cheap, reliable and legal supply of farm workers and that it 
     made an inadvertent but important contribution in 
     legitimizing a large part of the nation's illegal alien 
     population.
       Critics point to cases like that of Larry and Sharon Marval 
     of Newark. Last year they pleaded guilty to immigration fraud 
     charges after immigration service investigators alleged that 
     the Marvals were part of an operation that helped about 1,000 
     aliens acquire amnesty with falsified documents showing they 
     had all worked on a mere 30 acres of farmland.
       The amnesty for farm workers was a last-minute addition to 
     the Immigration Reform and Control Act of 1986, which sought 
     to halt illegal immigration with a two-part strategy. Under a 
     general amnesty, illegal aliens who could prove they had 
     lived in the United States since before Jan. 1, 1982, were 
     given the chance to leave their underground existence and 
     begin a process leading to permanent resident status. And to 
     stem further illegal immigration, the employment of illegal 
     aliens was made a crime.
       The agricultural amnesty program was adopted at the 
     insistence of politically powerful fruit and vegetable 
     growers in California and Texas who wanted to protect their 
     labor force. In several respects, the provisions for the 
     program were much less strict than the general amnesty 
     program, which drew 1.7 million applicants. Instead of having 
     to document nearly five years of continuous residence, most 
     agricultural worker applicants had to show only that they had 
     done 90 days of farm work between May 1, 1985, and May 1, 
     1986.
       Representative Charles E. Schumer, a Brooklyn Democrat who 
     was an author of this Special Agricultural Worker provision, 
     said that in retrospect the program seemed ``too open'' and 
     susceptible to fraud. But he argued that budget decisions had 
     made the battle to combat fraud more difficult.
       ``There has not been enough diligence in tracking down the 
     fraud,'' he said, ``because funding for the I.N.S. has been 
     cut by the White House in each of the last three budgets, 
     even though everyone agreed when the bill passed that greater 
     I.N.S. manpower was essential to make it work.''
       Congress rarely raises the immigration service budget above 
     Administration requests.
       Aside from its budget problems, the immigration service has 
     repeatedly come under fire this year in Congress and in an 
     audit by the Justice Department for what was termed 
     mismanagement and administrative inefficiency.
       John F. Shaw, Assistant Immigration Commissioner, agreed 
     that ``manpower restrictions'' at the agency were a major 
     factor in the fraud in the agricultural amnesty program. He 
     said much of the fraud ``shot through a window of 
     opportunity'' when the agency was frantically trying to deal 
     with many new burdens of the 1986 immigration law.
       Mr. Shaw said law-enforcement efforts had been limited to 
     the people who sold false documents to applicants for the 
     farm worker amnesty. The immigration service has made 844 
     arrests and won 413 convictions in cases alleging fraud in 
     the amnesty program. The people involved ranged from notaries 
     public to field crew leaders. ``It was a cottage industry,'' 
     Mr. Shaw said.
       The immigration service can revoke legal status if it finds 
     the applicant committed fraud, but even this effort is 
     limited. Only applications that appear linked to a fraud 
     conspiracy are held for review, as when an unusually large 
     number of applicants assert that they have worked in same 
     place. Some 398,000 aliens have fallen into this category 
     since the application period ended last Nov. 30, but it is 
     likely that many of them will get resident status.
       Mr. Shaw said the fraud conspiracies often involved farms 
     that actually did employ some migrant labor. So it is 
     frequently impossible to separate legitimate from illicit 
     claims.
       Given the limited law-enforcement effort, no precise count 
     of fraud in the agricultural amnesty program is possible. But 
     some rough estimates are possible based on information from 
     the aliens themselves. An extensive survey conducted in three 
     rural Mexican communities by the Center for U.S.-Mexican 
     Studies at the University of California in San Diego found 
     that only 72 percent of those who identified themselves as 
     applicants for farm worker amnesty had work histories that 
     qualified them for the program. A similar survey conducted by 
     Mexican researchers in Jalisco in central Mexico found that 
     only 59 percent qualified.
       But fraud alone does not explain why the program produced 
     more than five times the applicants Congress expected. Frank 
     D. Bean, co-director of the Program for Research on 
     Immigration Policy at the Urban Institute in Washington, said 
     the miscalculation in the Special Agricultural Worker program 
     reflected longstanding difficulties in tracking the number of 
     temporary illegal migrants from Mexico.
       ``It is at least plausible that a very large percentage of 
     the S.A.W. applicants had done agricultural work in the U.S. 
     even if they did not meet the specific time requirements of 
     the amnesty,'' Mr. Bean said.
       Mr. Shaw of the immigration service, and other critics of 
     the law, believe there were more fundamental flaws. ``It was 
     a weak program and it was poorly articulated in the law,'' he 
     said.
       Unlike almost all other immigration programs, which put the 
     burden of proof applicant, the farm amnesty put the burden on

[[Page 9082]]

     the Government. Consequently, aliens with even the most 
     rudimentary documentation cannot be rejected unless the 
     Government can prove their claims are false.
       Stephen Rosenbaum, staff attorney for California Rural 
     Legal Assistance, a nonprofit service organization for farm 
     workers, argued that there was no other way to structure an 
     immigration program for an occupation ``that does not produce 
     a paper trail.'' He noted that farm workers are paid in cash 
     and neither the employers nor the workers keep detailed 
     records.
       ``You can argue the wisdom of a farm worker amnesty, but if 
     you have one, you have to recognize the immense logistical 
     problems involved in producing evidence,'' he said.
       The immigration service at first tried to apply the 
     stringent practices common to other immigration programs, 
     like rejecting applicants with little explanation when their 
     documents were suspect. But three lawsuits brought in 
     Florida, Texas and California over the last two years forced 
     the agency to follow the broader standards mandated by 
     Congress.
       The burden-of-proof issue arose again earlier this year 
     when the House of Representatives approved legislation that 
     would have made any person who could prove Soviet citizenship 
     eligible for political refugee status.
       A legislator with a powerful role on immigration policy, 
     Senator Alan K. Simpson, Republican of Wyoming, eliminated 
     the provision because of concerns raised by the farm worker 
     amnesty program, an aide said. Mr. Simpson, who is on the 
     Senate Judiciary Subcommittee on Immigration and Refugee 
     Affairs, substituted a series of specific circumstances that 
     had to be met for a Soviet citizen to be considered a 
     refugee, like denial of a particular job because of religious 
     beliefs.
       Immigration experts believe that the agricultural amnesty 
     program will probably color policy debates over other 
     categories of aliens whose qualifications will be difficult 
     to document, like the anti-Sandinista rebels of Nicaragua.
       ``One certain product'' of the agricultural amnesty 
     program, Representative Schumer said, ``is that in developing 
     immigration policies in the future, Congress will be much 
     more wary of the potential for fraud and will do more to stop 
     it.''

  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 4\1/2\ minutes.
  Mrs. FEINSTEIN. Mr. President, I would like to make a couple of 
comments.
  I very much appreciate my service and Senator Cornyn's service on the 
same committee and have great respect for him and also for Senator 
Martinez who has introduced the Hagel-Martinez plan with the best of 
motives. Senator Cornyn said we shouldn't throw up our hands. I am not 
throwing up my hands. I want strong borders. I voted for a fence. I 
believe we should put National Guard on the borders. We provide 12,500 
additional Border Patrol, 2,500 border inspectors, over $1 billion of 
equipment for the border. We should have our border enforced. We should 
get the help of Mexico to enforce it.
  Secondly, with this plan, there is no jumping in line ahead of anyone 
waiting legally for a green card.
  The line begins for the orange card recipients, if such should ever 
be, when that line is expunged. What we do is recognize the reality, 
learn from the streets, understand what happens, and then try to build 
a comprehensive solution to deal with the real world--border control, 
increase practical numbers of visas, as well as providing a path for 
earned legalization for those people who are here now.
  That path has several hurdles. It will weed out those who should not 
receive an orange card from those who should. It is an electronic 
process. It is doable, and it is practical. It recognizes that if you 
leave 4.4 million undocumented immigrants subject to deportation, 
whether it is this year or 4 years down the pike, you create another 
illegal pool of workers in this country, which I think destroys the 
comprehensive approach.
  Therefore, I just want to say that this orange card has specific 
requirements that have to be met over a 6-year period of work, of 
learning to speak English, of paying a fine, of paying taxes, of work 
history. That has to be met on an annual basis, submitting work history 
receipts on an annual basis. The program financially takes care of 
itself with the fines and fees. I believe it is a practical, humane way 
to go which can, in fact, with the other components of the bill, create 
a comprehensive solution to immigration reform which has a chance to 
stop illegal immigration into our country.
  I am concerned that should Hagel-Martinez become the law, we are back 
where we started with a huge group of people subject to deportation at 
one point or another. We know that creates the underground labor pool, 
which then creates the incentive for an addition to that underground 
labor pool. I believe the orange card proposal we have before the 
Senate now does not do that. But the devil is in the details of all of 
this. We will see.
  How much time do I have remaining?
  The PRESIDING OFFICER. Less than 1 minute 50 seconds.
  Mr. KENNEDY. Mr. President, I yield whatever time I have to the 
Senator from California.
  Mrs. FEINSTEIN. Mr. President, I would like to say one other thing. A 
lot of people come to me in desperate circumstances for private bills. 
I have tried to meet some of the families. What I have seen in these 
families is truly amazing. I have seen a legacy of work over a period 
of time that is amazing for any human being. I have actually seen 
families whose children are valedictorians of their high school class. 
I have seen them hide, but they pay their taxes, and they own a home. 
Some are even supervisors of companies.
  If you look around America, the meatpacking industry, the chicken-
processing industry, virtually all of the manufacturing and production, 
you will see these people as a dominant part of that workforce. I look 
at the great bread basket that is California, the largest agricultural 
State in the Union, and I know at least 600,000 of our workforce are 
undocumented and illegal. I know they come here because of the absence 
of any hope or opportunity or ability to make a decent living where 
they were living before.
  I think this whole dialog we are having puts an enormous obligation 
on Mexico to begin to understand the needs of their people and do 
something to help them become economically more upwardly mobile because 
this is certainly the main problem that leads to the cross-border 
immigration that is illegal into our country. So we have tried to solve 
this with a comprehensive bill. I think it makes sense. It says to 
everybody that you have to earn this legalization. You have to get out 
there and work for at least 6 more years. You have to report in, but 
you have a card which identifies that you are in an adjusted status, 
you are not subject to deportation. You can raise your children. You 
can volunteer for community activities. You can become a constructive 
member of society. I believe that is worth a lot.
  Enabling people to live to their fullest is worth a lot. I hazard a 
guess that there is not one person who is going to go home because of 
what we do in a bill. They are going to stay, they are going to 
continue, but the lifestyle is going to be clandestine, and they are 
never going to be able to reach their full potential. This amendment 
allows them to do so. I urge the Senate to vote yes.
  I yield the floor and the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, it is with reluctance that I oppose the 
amendment offered by the Senator from California because if this 
amendment were to be adopted, I believe the very delicate and fragile 
coalition we have for this bill would fail. We are going to be looking 
for a cloture vote tomorrow, and if we were to go back to before the 
tenuous agreement that has been worked out to date with the three 
subdivisions--those here 5 years or more, those here 2 to 5 years, and 
those here less than 2 years--I think our efforts at cloture would fail 
and the prospects for failure of the bill would be very high.
  We have structured the bill on a matter of principle, that those who 
are here the longest have the most roots and deserve the most 
consideration. The top tier was those who have been

[[Page 9083]]

here 5 years or more. Selecting the date of January 7, 2004, as a 
cutoff date was done because that was the date of the President's 
speech on immigration reform. And anybody who came to the United States 
was on notice that they would be treated differently.
  Under ideal circumstances, if we didn't have a tenuous coalition and 
we didn't have a conference prospectively with the House, I would be 
very sympathetic and inclined to support what the Senator from 
California has done. The reality is that it is going to be very 
difficult to find people who are here and not turn them into a fugitive 
class. The theory is that those people will not be able to find jobs 
and that they will, therefore, return.
  But this legislation is on the edge of the ledge as it is. To keep 
the coalition intact--and I think that was the thrust of what Senator 
Kennedy had to say, if I understood him, and I think others in the 
coalition are of the same mind--it is with reluctance that I oppose 
what the Senator from California has said. As a nation of immigrants, 
it would be nice to include everybody on the path to citizenship, but 
we face a lot of opposition, realistically, on the charge of amnesty, 
which I have dealt with on the floor. The bill is not amnesty; it is 
earned citizenship.
  How much time do I have?
  The PRESIDING OFFICER. Two minutes.
  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. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Under the previous order, all time having expired, the question is on 
agreeing to amendment No. 4087, as modified.
  Mrs. FEINSTEIN. 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 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) was necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 37, nays 61, as follows:

                      [Rollcall Vote No. 138 Leg.]

                                YEAS--37

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Chafee
     Clinton
     Conrad
     Dayton
     Dodd
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Menendez
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--61

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

                             NOT VOTING--2

     Enzi
     Rockefeller
       
  The amendment (No. 4087), as modified was rejected.
  Mr. REID. Mr. President, I move to reconsider the vote.
  I move to lay that motion on the table.
  Mr. SPECTER. The motion to lay on the table was agreed to.


                     Death of Senator Lloyd Bentsen

  Mr. REID. Mr. President, I was just notified a few minutes ago that 
Lloyd Bentsen died. For those of us who have had the pleasure of 
serving with Lloyd Bentsen, this is a sad day. There was no one who 
better represented the Senate than Lloyd Bentsen. He looked like a 
Senator, he carried himself so well, and he acted like a Senator. He 
legislated like a Senator. He died at age 85. He was sick for a number 
of years. He was a person who had a great political record. He served 
in the House of Representatives for three terms, and he served in the 
Senate--he could have served as long as he wanted--and became Secretary 
of the Treasury during the Clinton administration. He, of course, ran 
for Vice President and he ran for President.
  For me personally, he was such a guiding light. I can remember when I 
was elected to the Senate, and I was trying to get on the 
Appropriations Committee. I met in his hideaway.
  This speaks about the way Lloyd Bentsen conducted his life. I was 
telling him why it would be good for me. I had been through a tough 
race. It was the most noted race in the cycle at that time. I was 
talking to him a lot about why it was important for me to get on the 
Appropriations Committee. He ended the discussion very quickly.
  He said: It doesn't matter if it is good for you. I believe it is 
good for the Senate.
  That was how he conducted his life. He was someone we all looked to. 
As a new Senator, I could talk to him with reverence. I can remember 
visiting with him when he was Secretary of Treasury. He told me how 
much he missed the Senate and how lonely it was down there and how he 
missed the collegiality of the Senate.
  The State of Texas has had great Senators, but no Senator has ever 
been a better Senator than Lloyd Bentsen.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, with the consent of the majority leader, I 
ask unanimous consent that the time for the recess begin now, 12 
minutes early.
  The PRESIDING OFFICER. Is there objection?
  Mr. FRIST. Mr. President, there will be no objection. We are making 
real progress and have begun discussing how we will handle the rest of 
the day and tomorrow as well. There is no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the Senate stands in recess until 2:15 p.m.
  Thereupon, at 12:19 p.m., the Senate recessed until 2:15 p.m. and 
reassembled when called to order by the Presiding Officer (Mr. 
Voinovich).
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  (The remarks of Mrs. Hutchison are printed in today's Record under 
``Morning Business.'')
  Mrs. HUTCHISON. Mr. President, I yield the floor and 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.

                          ____________________