Emergency Border Security Supplemental Appropriations Act, 2010

Floor Speech

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Mr. SCHUMER. Mr. President, today, I come to the floor to seek Unanimous Consent to pass a smart, tough, and effective $600 million bill that will significantly enhance the security and integrity of our Nation's southern border--which currently lacks the resources needed to fully combat the drug smugglers, gunrunners, human-traffickers, money launderers and other organized criminals that seek to do harm to innocent Americans along our border.

The Senate first passed this bill last week by unanimous consent. Last week's vote ended an impasse over how to pay for this package that all of us agree needed to be passed as soon as possible.

At first, the House proposed a border security bill that was not fully paid for and, thus, was unacceptable to many in the Senate.

And, here in the Senate, many of my colleagues on the other side of the aisle wanted to pay for this bill by diverting critical funds from the stimulus bill, The Recovery Act. This too was unacceptable because border security does not need to come at the expense of programs that create jobs for millions of Americans. As important as border security is, we should not be taking away jobs from firemen in Buffalo and teachers in Syracuse in order to hire more agents in El Paso. That is the worst kind of robbing Peter to pay Paul that was simply an unacceptable way to pay for increased border security.

Instead of raising the deficit--which we do not do in this bill--or diverting vital stimulus funds, the Senate ultimately agreed to pay for the border package by increasing visa fees on companies who hire foreign workers in a manner contrary to the original intent of the H-1B visa program.

After the Senate reached this compromise and unanimously approved this border package last week, the House approved the same substantive border package by voice vote on Tuesday.

But, regrettably, the House was unable to simply pass the Senate bill. According to House rules--because the Senate's offset did not originate in the House--it had to be approved by the House first, before the Senate's passage. So today, I again seek the unanimous consent of my colleagues to approve this border security bill and to finally provide President Obama and Secretary Napolitano with the boots on the ground and the resources necessary to combat the crime and violence that currently exists on our southern border.

I would like to thank the original cosponsors of this legislation: Senators MCCASKILL, REID, INOUYE, MURRAY, FEINSTEIN, BINGAMAN, UDALL of New Mexico, CASEY, MERKLEY, LINCOLN, UDALL of Colorado, BEGICH, and BURRIS.

I would also particularly like to thank Senators MCCAIN and KYL for joining on as cosponsors prior to the Senate's original approval and for recognizing this bill as being significant border security legislation.

In addition to providing many vital resources for securing our southern border--all of which I will detail in a moment--this bill is also enormously important because it will clear the path for restarting the bipartisan discussions we absolutely need to have on how best to restore the rule of law to our entire immigration system.

Although we all agree that we must secure our borders, we will never fully resolve the problem of illegal immigration until we fix the entirety of what is wrong with our immigration system.

But those of us who currently support comprehensive immigration reform also believe in providing all of the resources our experts on the ground are telling us they need to secure the border right now. That is why this bill has received the support of the entire Senate.

We know that keeping our borders safe from dangerous gang members, drug dealers, and human traffickers is critical to restoring the public's confidence that the entirety of our focus with regard to immigration policy is geared toward restoring the rule of law to what has been a lawless system in the past.

That is why I commend the President and Secretary Napolitano for their tireless work in advocating for the passage of this package to give our people on the ground the tools they need to secure the border.

Here are all of the vital resources our border security package will provide:

First, we provide over $250 million to hire 1,000 new Border Patrol agents and 500 CBP officers to permanently patrol our southern border. These new agents will form a ``strike force'' that will be deployed in different areas of the southwest border depending on where the need is greatest at any particular moment. We will finally have the capability to deploy our manpower in a way where we can continuously and immediately change our tactics to respond to changes in the tactics of smugglers and traffickers.

Second, we will provide funding to deploy more unmanned drones to fly along our southern border to provide our agents on the ground with real-time information on unlawful border crossings.

We are currently deploying seven of these unmanned drones on our border. They have been proven to be very effective because they provide our border patrol agents with vast force multiplication through their ability to identify the exact locations of larger groups that disperse into smaller groups upon encountering border patrol agents on the ground.

These additional drones will help us gain operational control over a much larger segment of our southern border than we otherwise would have controlled because they provide miles of surveillance capability that is technologically impossible to achieve through other means.

Third, we will provide funds to improve communications capabilities between Federal border enforcement agents and state and local officers along the border. The issue here is crime. Officers with different areas of expertise and jurisdiction need to be able to communicate in order to have the best information possible to break up smuggling and trafficking rings that are embedded in local communities. These improved communication capabilities will lead to countless more apprehensions and prosecutions of big-time smugglers and traffickers.

As an example, if our border patrol suddenly begins encountering a surge of illegal border crossers from El Salvador with identical tattoos on their arms, it is important that they provide this information to State and local law enforcement on the ground so that we can immediately begin sharing intelligence to determine whether individuals with this description have recently been arrested. This coordination will help us determine the exact criminal intent of this group and their methods of operation so that they can be effectively combated.

Fourth, we will provide funds to construct forward operating bases for the border patrol to use that are actually located on the border itself rather than hundreds of miles away.

It is extremely inefficient for border patrol to apprehend individuals along the border and then have to drive hours to place that person in detention in a far-away base. These forward operating bases provide locations much closer to the border where detainees can be brought for processing so that patrol agents on the ground can spend much more time combating illegal activity on the border.

Fifth, we will provide funds for Immigration and Customs Enforcement to conduct investigations of drug-runners, money-launderers, and human traffickers along our border. It is almost impossible to find out the sources and uses of smuggling and trafficking funds without strong intelligence and investigation capabilities. This bill will provide ICE with the resources it needs to hunt down the major players in these cartels who are responsible for the majority of the illegality on the southern border.

Finally, we will provide over $200 million to increase the number of ATF, DEA, and FBI agents on our border and to bolster the number of prosecutors and court resources along our border so that wrongdoers can be immediately brought to justice.

We will dramatically reduce the incidences of illegal smuggling of guns, drugs, and currency along our borders so that the American people can feel far safer living in many of our border communities than they do today.

The best part of this border package is that it is fully paid for and does not increase the deficit by a single penny. In actuality, the Congressional Budget Office--the CBO--has determined that the bill will yield a direct savings to taxpayers of $50 million.

The emergency border funds we are passing today are fully paid for by assessing fees on certain types of companies who hire foreign workers using certain types of visas in a way that Congress did not intend.

I want to take a moment to explain exactly what we are doing in the bill a little further because I want everyone to clearly understand how these offsets have been designed. There has been some discussion about this proposal, and I think we ought to lay it on the table and explain it clearly.

In 1990, the Congress realized the world was changing rapidly and that technological innovations, such as the Internet, were creating a high demand in the United States for high-tech workers to create new technologies and products. Consequently, Congress created the H-1B visa program to allow U.S. employers to hire foreign tech workers in special circumstances when they could not find an American citizen who was qualified.

Many of the companies that use this program today are using the program in exactly the way Congress intended; that is, these companies, such as Microsoft, IBM, and Intel, are hiring bright foreign students educated in our American universities to work in the United States for 6 or 7 years to invent new product lines and technologies so that Microsoft, IBM, and Intel can sell more products to the American public and hire more American workers. Then at the expiration of the H-1B visa period, these companies apply for these talented workers to earn green cards and stay with the company.

When the H-1B visa program is used in this manner, it is a good program for everyone involved. It is good for the company, it is good for the worker, and it is good for the American people who benefit from the products and jobs created by the innovation of the H-1B visa holder.

Every day companies such as Oracle, Cisco, Apple, and others use the H-1B visa program in the exact way I have described, and their use of the program has greatly benefited the country.

But recently some companies have decided to exploit an unintended loophole in the H-1B visa program to use the program in a manner that many in Congress, including myself, do not believe is consistent with the program's intent.

Rather than being a company that makes something or provides a service and simply needs to bring in a talented foreign worker to help innovate and create new technologies, these other companies are essentially creating multinational temp agencies that were never contemplated when the H-1B program was created.

The business model of these newer companies is not to make any new products or technologies such as Microsoft or Apple does. Instead, their business model is to, first, bring foreign tech workers into the United States who are willing to accept less pay than their American counterparts; two, place these workers into other companies in exchange for a consulting fee; and, three, transfer these workers from company to company in order to maximize profits from placement fees.

In other words, these companies are petitioning for foreign workers simply to then turn around and provide these same workers to other companies who need cheap labor for various short-term projects.

Don't take my word for it. If you look at the marketing materials of some of these companies that fall within the scope covered by today's legislation, their materials boast about their ``outsourcing expertise'' and say their advantage is their ability to conduct what they call ``labor arbitrage''--labor arbitrage; they say it--which is, in their own words, ``transferring work functions to a lower cost environment for increased savings.''

The business model used by these companies within the United States is creating three major negative side effects. First, it is ruining the reputation of the H-1B program, which is overwhelmingly used by good actors for beneficial purposes. Some of our colleagues have legislation to curtail H-1B because of these types of abuses.

Second, according to the Economic Policy Institute, it is lowering the wages for American tech workers already in the marketplace. And, third, it is also discouraging many of our smartest students from entering the technology industry in the first place. Students can see that paying hundreds of thousands of dollars for advanced schooling is not worth the cost when the market is being flooded with foreign temporary workers willing to do tech work for far less pay because their foreign education was cheaper and they intend to move back home when their visa expires to a country where the cost of living is far less expensive.

This type of use of the H-1B visa program will be addressed as part of comprehensive reform, and it is likely going to be dramatically restricted--certainly, if I have something to do about it. We will be reforming the legal immigration system to encourage the world's best and brightest to come to the United States to create new technologies and businesses that will employ countless American workers but will discourage businesses from using our immigration laws as a means to obtain temporary and less expensive foreign labor to replace capable American workers.

Let me say, in our proposal, the extra duty only goes on companies that are more than 50 percent foreign workers and 50 percent H-1B workers. The only companies that are 50 percent H-1B workers are those that are just doing the policy that I proposed--far, far from what we envisioned when H-1B was passed.

I say to those companies: If you do not change your ways--you should not be doing what you are doing, and this duty is appropriate for that purpose.

I do want to clarify a previous remark which mischaracterized these firms where I labeled them as ``chop shops.'' That statement was incorrect, and I wish to acknowledge that. In the tech industry, these firms are known as ``body shops.'' That is what I should have said, and that is what they are.

While I wholly oppose the manner in which these firms are using H-1B to accomplish objectives that Congress never intended, it would be unfortunate if anyone concluded from my remarks that these firms are engaging in illegal behavior.

But I also want to make clear that the purpose of this fee is not to target businesses from any particular country. Many news articles have reported that the only companies affected by this fee are companies based in India and that ipso facto the purpose of this legislation is to target Indian IT companies. It is simply untrue that the purpose of this legislation is to target Indian companies. We are simply raising fees for businesses that use the H-1B visa to do things that are contrary to the program's original intent, and that will be on any company from any country that does it.

Visa fees will only increase for companies with more than 50 workers who continue to employ more than 50 percent of their employees through the H-1B program. That was never even close to anyone's thought when H-1B was passed. Congress does not want the H-1B program to be a vehicle for creating multinational temp agencies where workers do not know what projects they will be working on or what cities they will be working in when they enter the country. The fee is solely based upon the business model of the company, not the location of the company.

If they are using the H-1B visa to innovate new products and technologies, that is a good thing, regardless of whether the company was originally founded in India, Ireland, or Indiana. But if they are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of this program, I and my colleagues believe they should have to pay a higher fee to ensure that American workers are not losing their jobs because of the unintended uses of the visa program that were never contemplated when the program was created. This belief is consistent regardless of whether the company using these staffing practices was founded in Bangalore, Beijing, or Boston.

Raising the fees for companies hiring more than 50 percent of their workforce through foreign visas accomplishes two important goals: First, it will provide the necessary funds to secure our borders without raising taxes or adding to the deficit. Second, it will level the playing field for American workers so they do not lose out on good jobs in America because it is cheaper to bring in a foreign worker than hire an American worker.

Let me tell my colleagues what objective folks around the world are saying about the impact of this fee increase.

In an August 6, 2010, Wall Street Journal article, Avinash Vashistha, the CEO of a Bangalore-based offshoring advisory consulting firm, told the Journal the new fee in the bill ``would accelerate Indian firms'' plans to hire
more American-born workers in the U.S.'' What is wrong with that?

In an August 7, 2010, Economic Times article, Jeya Kumar, a CEO of a top IT company, said this bill would ``erode cost arbitrage and cause a change in the operational model of Indian offshore providers.'' Exactly. That is what we want.

The leaders of this business model are agreeing that our bill will make it more expensive to bring in foreign tech workers to compete with American tech workers for jobs in America. That means these companies are going to have to start to hire U.S. tech workers again.

This bill is not only a responsible border security bill, it has the dual advantage of creating more high-paying American jobs.

Finally, I want to be clear about one other thing. Even though passing this bill will secure our borders, I again say the only way to fully restore the rule of law to our entire immigration system is by passing comprehensive immigration reform.

In my many meetings with folks on the other side of the aisle to try to gain their support for comprehensive reform, I repeatedly heard them say that once we show we are serious about passing border security legislation, they would be able to begin working with us to fix all of the other aspects of our broken immigration system.

Make no mistake about it, our entire immigration system is broken. It is a patient that needs quadruple bypass surgery. A single bypass surgery of border security alone is important but not enough to cure the patient of its ailment. We also need to enact tough and smart immigration reform that will, A, end the jobs magnet to the United States by requiring that all legal workers show a secure Social Security card prior to obtaining a job; B, end visa overstays through robust interior enforcement; and, C, require that all persons here unlawfully make their presence known to us by registering with the Federal Government and then either getting right with the law or leaving the country.

It is my hope that the bill we are passing today will break the deadlock that has existed in Congress and will clear the path for us to finally resume bipartisan negotiations in good faith on reforming our broken immigration system. I intend to do everything I can to make that happen.

But negotiations cannot happen out of thin air. It will take serious Republicans working with serious Democrats to get this done. I urge my colleagues on both sides of the aisle to join in this very important task.

With this bill's passage today, we will clearly show we are serious about securing our Nation's borders. It is time for our colleagues on both sides of the aisle to join in fixing our entire broken immigration system.

The urgency for immigration reform cannot be overstated because it is so overdue. The time for excuses is now over. The time to get to work is now.

Mr. President, I ask unanimous consent that the bill be read three times, passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the RECORD.

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