Comprehensive Immigration Reform Act of 2006 - Continued -
COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006--Continued -- (Senate - May 23, 2006)
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Mr. CORNYN. Mr. President, I heard the distinguished Senator from Massachusetts and the distinguished chairman of the Finance Committee, Senator Grassley, talk about this amendment as if this were an agreed-upon amendment. I understand there has been a lot of work put into this amendment. I rise to voice objections to the amendment for a number of reasons I would like to discuss.
This is critical. I agree with Senators Grassley and Kennedy that this is the linchpin of this bill. If we don't get this right, then we might as well pitch it in because the fact is that employment and the prospects for employment are the magnets that attract illegal immigrants into the country or people who come legally and overstay in violation of our immigration laws.
I think it is important that the very Cabinet member--Secretary Chertoff--who is going to be responsible for enforcing this immigration reform has called this amendment a poison pill. He expressed concerns about the fact that, as currently written--and I understand it is one thing to pass a piece of legislation and expect to improve it in the conference committee, but I think it is absolutely critical that our colleagues understand what it is they are being asked to vote on. The No. 1 concern I have is that it would create a carve-out, until such time as whatever process is developed would produce a rate of 99-percent accuracy, in terms of confirming eligibility of prospective employees to work legally in the United States. A nonanswer would be essentially treated as an approval, and that individual would be then authorized to work permanently in the United States.
Once we pass this legislation, if it is passed, and it goes to conference and the differences are worked out and it is signed by the President, we all know this is merely an authorization. This is not an appropriation. In other words, the money to pay for this, to make it happen, is a matter of the appropriations process. That is not what we are doing here. Once the money is appropriated, then we are going to have to see the Department of Homeland Security issue a request for a proposal and ask contractors to bid on creating the database and the system whereby we can verify eligibility of prospective employees. So what we are talking about is a system that is going to take months, if not years, to implement. But even after it is implemented, until such time as it has a 99-percent accuracy rate, essentially what we are saying is the same old broken illegal immigration system of hiring people who are not authorized to work in the United States is OK.
The second problem I point out with this amendment is it creates liability on the part of the Federal Government. If, for example, someone submits their credentials and they are refused a job because they are not qualified to work in the United States, what this does is create a litigation system that will prove a disincentive for employers and the Department of Homeland Security to actually even check someone's qualifications as to whether they can work legally in the United States. This was the issue the Secretary of the Department of Homeland Security, Mr. Chertoff, took great issue with. He says, as a former judge, you are going to have determinations made, lawsuits filed, and then you are going to have appeals, and perhaps these appeals will take years to finally resolve, and the costs of hiring lawyers and the costs to the Government are going to stack up.
What is the easiest way for the Government and that individual at the Department of Homeland Security to avoid incurring those additional costs? It is going to be to give the prospective employee a pass and say: OK, you are fine. It proves a powerful disincentive for checking out the eligibility of that prospective employee.
Finally, this system would apply to future employees only. This amendment would limit the period of time in which employers could submit the credentials of this prospective employee to only 3 days. If, for example, they overlooked the matter and didn't do it for 4 days, they would be prohibited for all time from checking whether this individual could legally work in the United States.
So I ask, why would we create a system that is designed to fail? That is what this amendment, unfortunately, would do, notwithstanding the hard work that has been put into it. I believe the placeholder in title III is vastly superior to this so-called agreement, which is obviously not agreed to--certainly not by the Cabinet member who is responsible for the Department of Homeland Security and certainly not by this Senator and others who have had a chance to look at this.
Each day, approximately 1,300 migrant workers enter the United States to work illegally. The vast majority come here not to commit crimes or cause harm but to work. They are looking only to provide for their families, and we certainly all understand that. But they pay smugglers thousands of dollars and risk their lives crossing the border. They take this risk because they know that once they get into the United States, it won't be difficult to find employers willing to hire them in this black market of human labor. Until the Federal Government removes the magnet of illegal employment, it will not regain control over our broken immigration system.
Restricting employment of undocumented workers as a way to reduce illegal immigration is not a new concept. In 1981, the bipartisan Select Commission on Immigration and Refugee Policy recommended legislation making it illegal to hire undocumented workers. In 1997, the bipartisan U.S. Commission on Immigration Reform stated that eliminating the employment magnet is the linchpin to a comprehensive strategy to deter unlawful immigration. The U.S. Commission on Immigration Reform went on to conclude that the most promising option for verifying work authorization is a computerized registry based on the Social Security number. Yet, 25 years later, after 25 years of consensus, current employment verification laws are unworkable and unenforceable.
Today the Federal law only requires that employers confirm that employees produced paper documents. There is no general requirement that employers ensure that the paper documents are, indeed, reliable or otherwise take steps to combat fraud.
An employer--and this is the problem with the law as it currently stands, not necessarily with employers who are not FBI agents and who are not asking to conduct independent investigations or somehow a forensic examination of the authenticity of these documents, but under the law today an employer must review some combination of more than 20 different documents to determine whether a new worker is legal.
In 1996, Congress called for reduction in the number of documents, but 10 years later, the Government has yet to implement those regulations. As a result, document fraud and identity theft makes it easy for unscrupulous employers to look the other way and hire undocumented workers. Yet increasing penalties alone will not work because ambiguities in the law prevent employers from knowing what their obligations are with respect to their workforce.
Until there is a way for employers to truly know whether their workforce is legal, it will be difficult for them to comply and difficult for the Government to prosecute those who fail to comply. The result is the Government has all but given up enforcing laws governing the work site. The Government has all but given up.
In 2003, the Department of Homeland Security dedicated only 90 full-time employees to work site enforcement--90, for a country of almost 300 million people.
In 2004, the Department of Homeland Security issued only three--yes, three--notices of intent to fine employers for violating the work site enforcement laws.
In 1992, by contrast, the Department issued more than 1,400 notices of intent to fine. So we went from 1,400 notices of intent to fine for cheating for hiring workers who could not legally work in 1992 to 3 in 2004. So over the past 12 years, those enforcement efforts have declined at a rate of 99.8 percent.
In the absence of any enforcement whatsoever, many employers flagrantly violate our laws. Just a few weeks ago, the Department of Homeland Security arrested several managers at the largest pallet services company in the United States. The Government has charged those managers with conspiring to transport, harbor, and induce illegal aliens to reside in the United States. On the day of their arrest, the Department of Homeland Security also took into custody 1,187 undocumented workers.
According to the records, more than 50 percent of the employee records had faulty Social Security numbers, and the Social Security Administration had told the company more than a dozen times that they had more than 1,000 employees without accurate Social Security numbers.
I wish I could say the allegations against this company are an isolated event, but they are not. The truth is, many employers make no effort whatsoever to comply with the law.
A recent Government Accountability Office report reviewed employer tax filings for the years 1985 through 2000 and found that one employer submitted a single Social Security number--a single Social Security number--for more than 2,580 different employees in a single tax year. Overall, 8,900 employers--just .2 percent of all employers--accounted for more than 30 percent of the total number of incorrect Social Security number submissions.
Get this, Mr. President: Of the 84.6 million records placed in the Social Security earnings suspense fund for tax years 1985 to 2000, about 9 million had Social Security numbers that consisted of nothing but zeros. Obviously, the employer knew they were submitting a bogus number, and 9 million submitted nothing but zeros. But in the absence of any enforcement of the law, any incentive to clean up those numbers, any incentive for employers to comply with the law, any infrastructure that allows people to check to determine whether this is a person who can legally work, this is the kind of fraud that occurs.
For 3.5 million records, employers used the same Social Security number to report earnings for multiple workers in a single tax year.
The truth is, the Government is decades behind the private sector when it comes to document integrity. Maybe what we ought to do is issue a contract and outsource this to MasterCharge and Visa. Maybe they can do a better job.
The fact is, this is embarrassing and intolerable and inexcusable conduct on the part of the Federal Government. But there is also reason for hope. There is a model that is already in place. Since 1996, the Federal Government has run an electronic verification system called Basic Pilot. Currently, about 6,000 employers participate in this system. Members of Congress, for example, are required to use this electronic verification system. And it works. That system should be expanded, and that system should be enforced.
We simply must require electronic verification by all employers, not just the ones covered by the current law or those who decide to do it on a voluntary basis. Electronic verification has been tested for more than 10 years, and an independent review of the program found that 96 percent of participating employers believed that the electronic verification system is an effective tool for employment verification.
Reports have also shown that the Department of Homeland Security and the Social Security Administration have made considerable progress in improving the accuracy of data. According to a 2004 report, there is a 99.8-percent confirmation rate for U.S.-born employees.
I can assure you, Mr. President, and my colleagues that without work site enforcement, we will be back here again in 10 years trying to figure out what to do with the next wave of illegal immigrants. We cannot afford piecemeal enforcement. We have to secure our border, we have to work with local and State law enforcement agencies to deal with enforcement in the interior, and we have to have an ability to verify on an accurate and expedited basis whether someone can work here legally in the United States. We don't yet have that. This bill does not yet provide it.
My hope is that we will get serious, finally, once and for all, in holding employers accountable, those who cheat and who provide that magnet that attracts so many people to come into this country illegally.
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Mr. CORNYN. Mr. President, I guess the question I have for the Senator is, if this amendment fails, there is a provision in the underlying bill that would go to the conference committee; isn't that correct?
Mr. GRASSLEY. That is correct.
Mr. CORNYN. I understand the obligation of the Senator from Iowa, as chairman of the Finance Committee, to try to work on a bipartisan basis, and I know he is committed to do that, and that is what this amendment represents. But I want to make clear that in the absence of this amendment being adopted, we still have a title III provision that can go to conference committee and be the subject of further negotiations.
Mr. GRASSLEY. Yes, if the Senator will allow me to continue to use some of his time, I hope we would agree on this at least: If somebody is not employed because of a mistake that the Federal Government made, that we have a responsibility to make sure that person is made whole; that nobody should lose a job or not get a job because of a mistake made by some Federal bureaucrat. With that in mind, we ought to be able to move forward.
I think I heard the Senator from Texas say that is his motivation, that he would want to make sure nobody was harmed economically, not getting a job because of a mistake that the Federal Government made.
Mr. CORNYN. Mr. President, I express my appreciation to Senator Grassley for his good work in this area. I do agree with him that we need to make sure, if there is a false positive--in other words, if someone should not be excluded from employment but the system says they should be and they are--that they ought to have some recourse.
My hope is that we would create a way for that record, if it is erroneous, to be corrected without everybody hiring a lawyer and going to their respective corners and then meeting in a courtroom and litigating the issues that could perhaps be worked out without that kind of experience.
I also want to make sure, as I know the Secretary of the Department of Homeland Security told both Senator Grassley and myself, that we don't unintentionally create some disincentive for people to hold employers accountable for hiring people who aren't qualified to work. I think we can certainly work to that end to try to balance it so it is not a disincentive to work site verification and sanctions against employers who cheat, but at the same time it is also fair to the employees.
The other problem is, this amendment and what we have done so far on this bill does not require the issuance of a secure Social Security card or employment authorization document. We had numerous witnesses testifying to the need for such a secure card. I believe employers would welcome the ease of being able to rely on a single document that could be literally swiped through a card reader, such as a debit card or a credit card at a convenience store.
This bill, as amended by this amendment, would retain the complicated document scheme that has led to widespread document fraud and identity theft.
And as I said, the Secretary of the Department of Homeland Security has stated his objections to this amendment. I realize he is not a Senator; he doesn't get to vote. But I do think we ought to consult with and respect the views of those who are going to have the responsibility to actually make this system work.
It concerns me that 20 years after the 1986 amnesty and the promise of work site enforcement that the agency responsible for enforcing those laws is telling Congress the new system would not work. My hope is that we would find a way to make it work. There may be some--I am not one of them--who don't want there to be enforcement, who don't want the system to work.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CORNYN. My hope is that we would all work together in good faith to make that happen. I yield the floor.
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Mr. CORNYN. Mr. President, I rise in opposition to amendment 4106 by the distinguished Senator from Massachusetts. The amendment enhances enforcement of labor protections for United States workers and guest workers, it is argued, by increasing penalties in violation of the Fair Labor Standards Act, increase civil and criminal penalties in violation of the Occupational Safety and Health Act, strengthens enforcement of violations for unfair labor practices, and designates how fees collected under the H-2C program should be allocated, including 25 percent to the labor law enforcement fund, and it would, arguably, provide protections for whistleblowers.
The main problem I have with the amendment is it is beyond the scope of this bill and beyond the language included in the underlying compromise which we have been told time and time again is fragile or delicate, as those who have supported that compromise have sought to defeat amendments such as this argue to change it.
This is obviously an amendment designed to increase the role of government, a role that is not called for. The problem is, the irony is, we may end up providing more protections for foreign workers than are provided for American citizens who currently work and reside legally in the United States. We ought to be cautious about doing that.
Certainly we all agree--not all of us, but I agree--we need to provide some means for a guest worker or temporary worker program, and that those foreign workers who are authorized to work legally in the United States for a period of time should be given the protection of the laws that generally apply to workers who already work legally in the United States. But to increase penalties and so-called labor protections to a degree that exceeds that provided to American workers, to me, seems uncalled for.
I urge my colleagues to vote against amendment 4106.
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Mr. CORNYN. Mr. President, I appreciate the opportunity to address the amendment. I guess if imitation is the sincerest form of flattery, I appreciate the Senator from Illinois suggesting that this follows the course set by the earlier amendment that had to do, as it turns out, with an entirely different class of individuals than the ones this amendment addresses. So I do not believe it is a similar sort of amendment.
For this reason, this morning, the Senate voted overwhelmingly to reject the Feinstein amendment, which basically would have undone this delicate compromise, this fragile compromise we have been told has to be maintained at all costs. That amendment would have simply opened the door to amnesty for 12 million people who are here and not require anyone--no matter how short a time they have been here--to do very much of anything distinguishable, at least from the 1986 amnesty.
The difference between what the Senate voted for earlier, which the Senator from Illinois references, is that those individuals had already had their day in court and been ordered deported but had simply gone underground. We recognized an extreme hardship exception there in an effort to try to work across the aisle with the Senator from Massachusetts and others, and the Senator from Arizona, Mr. McCain. Those individuals, by the way, still had to meet the other criteria under the bill, the so-called 2-year and 5-year standards.
The problem I have with this amendment is it has absolutely no standards to guide the discretion. As it says in the amendment, the ``sole and unreviewable'' discretion of the Attorney General and the ``sole and unreviewable'' discretion of the Secretary of the Department of Homeland Security. So we are left to wonder what standards would be actually applied by either the Attorney General or the Secretary of the Department of Homeland Security.
Also, I believe, if taken at face value, this amendment would result in the waiver of grounds for inadmissibility for some 6 million individuals--roughly half of those who are currently in the United States--because, according to the Pew Hispanic Center, approximately 6 million people are currently in the country illegally who have an American citizen child or American citizen spouse.
So I urge my colleagues to vote against the amendment, although I do think this is one of those areas where the conference committee--after the Senate passes its version of the bill and the House is working with us to try to come up with a final form--certainly can build on and try to work on to put some meat on the bone that is left undone by this amendment.
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Mr. CORNYN. Mr. President, I would just say that the way I read this amendment--and I have only seen it in the last few minutes--it would result in a waiver for approximately 6 million people illegally here in the United States, as we speak.
Mr. DURBIN. Mr. President, will the Senator yield?
Mr. CORNYN. It would be based on the fact of alleged extreme hardship through a spouse, parent, or child of such alien who is a citizen. The fact is, a total of 6 million illegal aliens in the United States currently, according to the Pew Hispanic Center, have an American citizen child or spouse.
It would also, as I read this, purport to waive removal for aggravated felons and would result in a green card for this class of individuals, irrespective of payment of taxes, any requirement they learn English, or paying a fine--which we have been told are the essential ingredients of earned legalization.
So this is really a backdoor way of undermining the compromise we have been told is very delicate and fragile and should not be messed with. So I would think those Senators who believe that is actually true would vote against the Durbin amendment because it does seek to undermine that compromise.
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Mr. CORNYN. Mr. President, notwithstanding my tremendous admiration and support for the chairman of the Finance Committee, Mr. Grassley, I must oppose this amendment.
Secretary Chertoff of the Department of Homeland Security, who is responsible for actually implementing this program, has called the requirements of this amendment a poison pill. Why in the world would we design a verification system, which I agree is the linchpin of comprehensive enforcement, that fails? Why would we design a system to fail in which the very person who is responsible for enforcing it calls it a poison pill? The administration does not support this amendment. I suggest the underlying bill is a better bill with which to go to conference and work out our differences.
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