Cite as "AILA InfoNet Doc. No. 13051446 (posted May. 14, 2013)"
Full summary of today’s hearing located below
On 5/14/13 the Senate Judiciary Committee held Day Two of the markup on S. 744 and completed most of the debate on Title IV of the bill (nonimmigrant visa provisions). 15 amendments were passed with majority support out of the 25 votes taken. All but one of the amendments that passed did so with broad bipartisan support on voice votes. The "Gang of Eight" continued to stay committed to the core provisions of the bill, with the two Republican Committee members of the "Gang of Eight" (Senators Flake (AZ) and Graham (SC)) joining all ten Democrats to vote no on two amendments offered by Senator Sessions that tie certain provisions of the bill to the successful implementation of a biometric entry/exit system. Negotiations are still currently ongoing between Senator Hatch and the "Gang of Eight" to include some of his amendments (#10-17) in the final version of the bill. Although at the end of the day Chairman Leahy officially closed Title IV (with a few specified exceptions that will be brought up on Thursday), most likely some of Senator Hatch’s amendments to the high-skilled visa program will also be addressed on Thursday. The committee will then move to Title III, starting with the E-Verify provisions.
In other amendment news: three of Senator Grassley’s eight offered amendments were passed (all with voice votes). These will: require additional information in internet job postings for nonimmigrant employees in connection with the issuance of H–1B visas (#58), strengthen provisions regarding student and exchange visitor visa programs (#69), and require the Secretary to implement the transmission of data from the Student and Exchange Visitor Information System (SEVIS) to databases used by CBP (#77). Two amendments offered by Senator Schumer (#3 and #4) to allocate small numbers of visas to underrepresented countries passed as well as an amendment by Senator Klobuchar (#1) to provide protections for abused derivatives of temporary workers also passed.
AILA has compiled a chart listing all the amendments offered during the 2nd day of mark-up, the statement of purpose and the result of the vote in committee. In addition, the full text of all amendments can be found under “Related Resources” to the right.
25 amendments to Title IV to watch (with AILA recommendations). (AILA Doc. No. 13051462.)
10:05 Sen. Leahy (D-VT) starts the hearing by commenting on how ugly the Dirksen Senate Office Building is, only saved from being the ugliest building in D.C. by the FBI building.
Amendment Feinstein 11, as modified, up for consideration. This amendment would prevent CBP from operating unmanned aerial vehicles in the San Diego sector except within three miles of the border.
Sen. Feinstein (D-CA): I learned five minutes ago that Sen. McCain is concerned that these drones should be permitted to operate off the ocean, but that is not the purview of CBP. I modified this amendments after Sen. Cornyn mentioned that he was concerned because Texas is different and he saw drones as being valuable in that perspective.
10:12am Amendment Feinstein 11, as modified, passed by voice vote
Amendment Coons 2, as modified, is up for consideration. This amendment would limit night time deportation which at times needlessly place immigrants in danger, but not tie the hands of DHS by including exceptions in this amendment. It also requires DHS to do a study on the effectiveness of lateral repatriation and requires border patrol agents to return property to migrants before deporting them when practical.
10:15am Amendments Coons 2, as modified, passed by voice vote.
Schumer Amendment 1 is up for consideration. This amendment offers purely technical corrections to the bill, clarifies reduction of employment and family backlogs, clarifies that $500 J1 visa program only applies to summer program, clarifies that fees funding W visa program also fund research institute, and that only the Secretary of DHS has the authority to determine the prevailing wage as relates to W visas.
Sen. Grassley (R-IA): Have you consulted with the committee of jurisdiction on this, and are they ok with it?
Sen. Schumer (D-NY): We have consulted with the Appropriations committee and they are ok with it. We have also consulted with the Commerce committee.
10:19am Amendment Schumer 1 passed by voice vote
Amendment Session 4 is up for consideration. Thise amendment will require the use of a biometric entry and exit data system at ports of entry before the Secretary of Homeland Security may adjust the status of aliens who have been granted registered provisional immigrant status.
Sen. Cornyn (R-TX): Under the biographic system, if your name is misspelled would that allow someone on the no-fly list to enter?
Sen. Sessions(R-AL): Yes, I believe it would.
Sen. Schumer: Under the current bill that would not be possible because the document would have to be machine readable, and we use a picture that is tamper proof. A picture is just as secure as a biometric, because it goes in a database. Our effectiveness is just as high, but the cost is less. Not having an exit system is a huge hole in our immigration enforcement scheme, that will not be allowed to happed under our proposal, but it will cost less than $25 billion that Sen. Session's amendment.
Sen. Sessions: I don't think you have an exit system that will work.
Sen. Leahy: I don't think the pathway to citizenship should be a false promise, we can't keep telling people that it's over the next mountain. The drafters of the bill worked hard to get a bi-partisan agreement on triggers which are realistic, and I don't think this is.
Sen. Sessions: They've agreed no doubt, and they decide which amendments will live or die. And I don't agree.
Sen. Cornyn: All the amendments related to border security failed, which I think was a big mistake. But by adopting Sen. Sessions' common-sense approach we can improve the bill. Walt Disney World is able to use a bio-metric system. I don't think DHS will ever do what Congress wants it to do unless we tie it to the trigger.
Sen. Feinstein: I think Sen. Sessions> has a point that the bio-metric system is the fail safe system, the problem is we haven't been able to do it. Sen. Schumer assures me that the biographic system will be effective, I don't necessarily believe that. The other concern is the cost, but I have real frustration because DHS Secretaries have committed to implementing and not been able to follow through. My understanding is that it adds $25 billion to the bill over ten years. I'm for the bill and don't want to stop it. I've seen too much fraud.
Sen. Schumer: They tried the bio-metric system in Atlanta and Detroit and it just didn't work.
Sen. Grassley: Airlines don't want this and they are the ones saying $25 billion. I take issue that it's easier to change fingerprints than your face. We shouldn't delay citizenship longer than ten years, but if we can't get something right in 20 years then there's something wrong in what we're trying to do.
Sen. Durbin (D-IL): We have 329 ports of entry in the United States, land, sea and air. We're trying to do something that is achievable and that will make America safer. Biometrics may be more sophisticated, but it also elusive. Also, to Sen. Cornyn's point last week we passed the Cornyn-Leahy amendment.
Sen. Sessions: I agree this is not so much a partisan matter.
Sen. Graham: How can you protect the nation when it's at risk? The technology is not deployed around the country.
Sen. Leahy: My Vermont driver license does not have a picture.
Amendment Sessions 4 fails by a vote of 6-12 (all Democrats plus Sens. Flake and Graham)
Sen. Lee (R-UT): Want to bring attention to Amendment Lee 1, 2 and 3, but not calling them up (withdrawn). These amendments show that we could deal with immigration reform in an incremental fashion.
Amendment Session 1 up for consideration. The amendment provides for future immigration and limits the number of nonimmigrant aliens who may be authorized for employment in the United States.
Sen. Sessions: Under the current law we admit close to 1.1 million people legally, and my amendment would call on us to generally understand what we're doing. We will have that 1.1 million, plus the 11 million that will get legal status at one time, plus the 4.5 million waiting time in the backlog that are chain migration recipients. The bill will create about a 50% increase in future flow, which means that instead of 10 million brought in lawfully in the next ten years, it will be 15 million. So in total that is 30 million new people coming in over the next ten years, which doesn't count family migration. Well some people say that the 11 million are already here. Well half of them are working in the underground economy, but when they become legal they will compete against native-born and legal immigrants.
Sen. Graham: These are debates worth having. Over the next 20 years 80 million baby boomers will be leaving the workforce, so I don't think we do enough. I see this country's need for legal immigration growing. Three years out we replace the family based chain migration system we replace it with a merit based system. Those who are already in line and the family members of 11 million will be grandfathered in. It's not my desire to punish anybody, but to not repeat the mistakes of the past. In the future about 150,000 green cards a year that used to be given to family members will now be given on a merit based system. For those who want to continue chain family migration, I'm sorry that won't be happening. Neither one of my parents graduated high school, but they made sure me and my sister went to college. I challenge this idea that the low skilled workforce won't contribute to America. I would suggest that the strength of this country is not the degree one holds, but the character that one possesses. I am very confident that out of this 11 million who have low skills will come some of the brightest hope for the future.
Sen. Schumer: We try to cause middle class America to grow and to increase wages as the economy grows.
Sen. Cruz (R-TX): I intend to vote no on the amendment. I believe legal immigration is a fundamental pillar of this country.
Sen. Sessions: The guestworker program will fail because we won't deport people when they can't get jobs.
Amendment Sessions 4 fails by a vote of 1-17 (only Sen. Sessions in support)
11:20 am Title IV begins.
Whitehouse 2nd degree amendment to Amendment Whitehouse 6, as modified, up for consideration. The amendment requires DOL to create toll free number and a website for people who feel they have been knocked out of their jobs by the hiring of immigrants that is then inspected by the AG in one year.
Amendment Whitehouse 6, as modified, passed by voice vote.
Sen. Grassley has questions for the "Gang of Eight," there are a lot of special interest provisions included in this bill (for example South Korea, Irish, Facebook, etc…) I want to address some of those.
- Who asked for Section 4604, which states that: "any alien admitted under section may accept an honorarium payment and associated incidental expenses, for a usual academic activity or activities."
Sen. Schumer A: this is already in the law, but that adds in entertainers. It will bring jobs to America.
- Section 4606: "An alien coming individually, or aliens coming as a group, who possess specialized knowledge to perform maintenance or repairs for common carriers, including to airlines, cruise lines, and railways, if such maintenance or repairs are occurring to equipment or machinery manufactured outside of the United States and are needed for purposes relating to life, health, and safety, may be admitted to the United States pursuant to section 101(a)(15)(B) for a period of not more than 90 days if each such alien has been employed in a foreign country by 1 employer for not less than 1 year prior to the date the alien is so admitted."
Sen. Schumer A: requested by the cruise industry when a ship is built overseas and needs emergency repairs.
- Signals out Ireland for specific benefits. Why?
Sen. Schumer A: America has had a special relationship with Ireland and we are continuing the status of immigration from Ireland for the last 15-20 years. The Donnelly and Morrison visa program also addressed this area.
Bill provides for increase in H-1B visas and allows the cap to move up or down in response to demand. Was DHs consulted in regards to this moving cap and how difficult will it be to implement?
- Sen. Schumer A: The cap is based on need and unemployment levels. DHS was consulted and supports the provision.
Sen. Klobuchar A: From 2001-2003 it was at 195,000 for historical perspective.
Sen. Schumer: The cap is based on need and unemployment levels. DHS was consulted and supports the provision.
Sen. Klobuchar: From 2001-2003 it was at 195,000 for historical perspective.
11:55am Amendment Grassley 58 up for consideration. The amendment requires additional information in Internet job postings for nonimmigrant employment in connection with the issuance of H-1B visas.
Sen. Durbin: I support this amendment, it's a good one. When writing this bill we tried to balance competing interests. We wanted to make certain that all jobs would first be offered to Americans at a competitive wage. I think we came up with a good alternative to past Durbin-Grassley bills. If you have a company that is more than 15% H-1B workers you have to make an effort to hire an American, we expand that in the current bill to beyond H-1B dependent employers. In the past we've gone after those companies exploiting the H-1B visa program, like outsourcing companies that are based overseas-the current bill phases them out over a three year period, rather than all at once.
Amendment Grassley 58 passed by voice vote.
Sen. Feinstein asks for unanimous consent to modify Feinstein 11 to exclude maritime operations. Passed by voice vote.
12:15pm Amendment Hatch 9 up for consideration. The amendment increases the labor certification fee required under section 212(a)(5)(A) and to use these fees to enhance the economic competitiveness of the United States by improving STEM education and training in the United States.
Sen. Hatch: This amendment would give power back to the states to determine how to spend the money in this fund to increase economic competitiveness. 70% of funds would be given to states and territories to fund educational opportunities in STEM fields, 20% of funds would be given to minority serving institutions for STEM fields, 5% statewide workplace activities in STEM fields, 3% for DREAM Act account to help K-12 students in STEM fields and 2% in a long-term fund.
Sen. Schumer: I offer a 2nd degree amendment to clarify the funding streams.
Sen. Klobuchar (D-MN): This puts in place one of the very provisions of the I Squared bill.
Sen. Coons (D-DE): I support this amendment.
Sen. Durbin: Why don't we have Americans do these jobs, we need to invest in our children. I am concerned about some of your other amendments. I want to make sure that every job is first offered to an American.
Sen. Hatch: There is a whole high-tech world that will be up in arms if we don't do this right and can make this bill very difficult to pass.
Sen. Sessions: Ron Hira, who testified, stated that H-1B and L visa program make it too easy to bring in foreign workers that substitute American workers rather than compliment.
Sen. Schumer: I understand the amendment would be supported by the fee set up by the bill. Then I support this amendment.
Amendment Hatch 9 passed by voice vote.
12:20pm Amendment Grassley 67 up for consideration. The amendment requires additional H and L audits mandatory, at least 1% of petitions, in addition to required audits of heavy users of the programs.
Sen. Schumer: I have to oppose this bill because it would allow audits of companies that have done nothing wrong. Currently, if a company looks like it has done something wrong that doesn't make sense. We have heard that these audits can go way overboard and can interfere with the ability of companies to hire H-1B workers.
Sen. Grassley: There is a lot of fraud in this program.
12:25 Committee in recess until after the lunch caucuses.
2:55pm Committee reconvenes.
Sen. Sessions: It seems to me businesses are asking for exceptions to American immigration law in order to satisfy needs, but that means there has to be some control of it.
Sen. Grassley: We're too often accused of wanting to protect business too often and now we're trying to crack down on fraud.
Sen. Flake: In this legislation we do crack down on H-1B dependent companies, after three years they'll go out of businesses. But to do an audit of companies when there is no allegation of wrong doing is a burden on business. Being audited comes with a significant cost.
Sen. Grassley: You're saying that audits are ok for some businesses and not for others. I'm saying that we should be consistent.
Sen. Schumer: We think sometimes think the government goes too far, if we had a bill that said that 1% of farms should be audited I'd guess that Sen. Grassley would vote against that, and for good reason. This same amendment was proposed in March 2007 and it was a good idea then because there were no audits happening whatsoever at that time. Since the summer of 2009, DHS has been conducting site visits of every new employer with H-1B employees, 15,000 were completed last year.
Sen. Sessions: This bill doubles the number of H-1B to 180,000, so we need to be prudent and concerned about American students. I support Sen. Grassley.
Amendment Grassley 67 fails on a 3-15 vote.
Amendment Cruz 5 is up for consideration. This amendment would raise the H-1B cap to 325,000. Authorizes dual intent for F-1 students as well.
Sen. Cruz: This amendment would substantially increase high skilled temporary worker program because they generate economic productivity. We should welcome workers from around the world who are high-skilled, STEM graduates who will produce jobs and improve the economic growth of America.
Sen. Durbin: Our goal is to make sure that jobs are first offered to American workers are a reasonable wage, what Sen. Cruz is proposing eliminates many of the protections built into this bill that protects American workers. We achieve this by using a fact based approach in the current bill that will guide the increase in H-1B.
Sen. Sessions: Would everyone that comes as a student be offered a green card?
Sen. Durbin: Only those in graduate students in STEM fields with a job offer.
Sen. Flake: I sympathize with this amendment, I'd like to see a lot of these caps raised. I'll have to reluctantly oppose this amendment because this is a highly negotiated section of the bill.
Sen. Klobuchar: I support a higher cap, but I think the protections added by "Gang of Eight" were important and we need to remember this was a compromise.
Sen. Cruz: This amendment would provide a cap, not a requirement. I think high-tech immigrants are an unambiguous good for this country. I would withdraw this amendment (without the protections) if the "Gang of Eight" would increase the cap (and leave the protections in the bill).
Amendment Cruz 5 fails on a 4-14 vote.
Amendment Grassley 60 is up for consideration. This amendment would require that the good faith efforts to recruit in the U.S. apply to all employers for H-1B visas.
Sen. Schumer: We have plenty of protections. But to push it too far, would not bring us the results we want. Let's not forget, you have to pay a level 2 wage, a higher wage to a foreign worker. To pile on protection after protection puts the pendulum too far in one direction.
Sen. Feinstein: As I understand, all this amendment does is that it requires all H-1B employers, not just H-1B dependent employers to make a good faith amendment,. What is wrong with that?
Sen. Schumer: It's so undefined that it's actually going to get in the way of people hiring good workers….You are not allowed to fire American workers to bring H-1B workers. That is prohibited in our bill.
Sen. Sessions: So there is no doubt in my mind that if there's a choice between a business hiring an American worker that is unemployed or a foreign worker, national interest dictates that we hire the American worker.
Sen. Whitehouse: I frankly don't see how that could be the case that this is a deal breaker. You will see me voting no, but I can see a lot of sense in this.
Sen. Grassley: Surely, if we protect American workers, this whole deal isn't going to fall apart.
Sen. Hatch: We have a 120,000 needed STEM workers every year. We have 40,000 Americans to fill those jobs. It's apparent that we need to be more open in this area. And frankly, there is a way we can write this to solve this problem. You can turn over immense power to the Department of Labor with this, and I'm not about to do that.
Sen. Franken: I'm going to vote no, but I would very much like to work with the Senator on this.
Amendment Grassley 60 fails on a 2-15 vote (1 pass)
Amendment Grassley 62 is up for consideration. This amendment strikes all references to intending immigration in H-1B visas.
Sen. Grassley: This amendment closes a loophole.
Sen. Flake: The concerns that the member expressed would be valid if this were written differently. Here what we're doing is, now remember, the process for a green card is lengthy, we're trying to incentivize good behavior. And good behavior is to bring people here who will stay here and be part of the permanent workforce.
Amendment Grassley 62 fails on a 2-15 vote.
Amendment Grassley 56 is up for consideration. This amendment strikes the authority relating to interview waivers for low risk visa applicants.
Sen. Grassley:This is an example of delegating to DHS when we should be delegating, we shouldn't tolerate lowering our standards for conducting an interview for national security reasons.
Sen. Leahy:I'm comfortable relying on the expertise of the people in the consular offices rather than Congress. They know who the low risk visa applicants are, and that frees them up to focus where they need to spend their time.
Sen. Grassley:It seems to me that there could be some sort of definition of "low risk."
Sen. Durbin:I think America post 9/11 understands the words "low security risk." If a mother in Mexico wants to visit her son who has been in an accident in Iowa, that's when they would waive it.
Sen. Hirono:I would like to speak in opposition to this amendment. Under current law there are only two exceptions to interviews, those under age 14 and over 79, doesn't it seem if interviews can be waived for those groups it can be waived for others. This amendment would result in longer wait times.
Sen. Feinstein: I support the amendment to prevent further exceptions to visa interviews.
Amendment Grassley 56 failed on a 9-9 vote.
4:07pm The committee has finished with H-1B and L visas.
Amendment Schumer 3 is up for consideration. This amendment makes certain nationals of countries that benefit from the African Growth and Opportunity Act or the Caribbean Basin Economic Recovery Act eligible for E nonimmigrant visas.
Sen. Schumer: This is a more economic visa (E-6 visa). This visa would last two years and require a job offer. Many individuals from the countries in Africa benefitted from the Diversity Visa that is being eliminated in the current bill. this amendment recognizes that people from African countries and the Caribbean are important parts of our country.
Sen. Graham: I believe the 10,000 visas will not tip things and is a good amendment to the bill. I very much support it.
Sen. Coons: A visa program that recognizes our improved relationship with countries in Africa is important and a wise way to balance competing interests aligned with our geo-political interests.
Sen. Sessions: I don't see why we benefit one country over another.
Amendment Schumer 3 passed on a voice vote.
Amendment Grassley 70 is up for consideration. This amendment delays the issuance of E-5 Visas to nationals of South Korea until South Korea has fully removed age-based import restrictions on beef from the United States.
During a free trade agreement we made with South Korea we said we would increase the number of visas allowed. I believe that this issue should be debated separately.
We have such a good relationship with South Korea.
Amendment Grassley 70 failed on a voice vote.
Amendment Klobuchar 3 is up for consideration. This amendment requires a pilot program to conduct interviews for certain nonimmigrant visas using secure remote video conferencing technology.
We are finally starting to see an increase in tourists after the large decrease after 9/11. We are not trying to reduce security efforts, but to use all technology efforts. This is a bipartisan effort. The State Department will be able to make decisions on where the pilot program will take place.
Amendment Klobuchar 3 passed on a voice vote.
Amendment Sessions 13 is up for consideration. This amendment requires aliens who may be a threat to national security to submit to an in person interview with a consular officer when applying for a visa.
The national interest waiver should only be used in consultation with the DHS not just individual consular officers.
We have to have a balance, and this amendment goes too far. I'm offering a 2nd degree amendment that would: require that consular officers have access to all national security databases, prevents people who are on a terrorist watch-list from gaining entrance to the U.S. unless DHS, National Security Director, and State Department they should be admitted, all databases be updated when an alien's visa is revoked.
This 2nd degree amendment is illegal because consular officers aren't authorized to access these terrorist databases.
Amendment Session 13, as modified by Sen. Schumer's 2nd degree amendment, passed on a 10-8 vote.
Amendment Blumenthal 17, as modified, is withdrawn. This amendment strengthens the whistleblower protections for H-2B nonimmigrants.
Amendment Hirono 15 is up for consideration. This amendment permits Medicaid coverage for citizens of the Freely Associated States.
The Compact of Free Association (COFA) defines the relationship that each of these three sovereign states-the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI) and the Republic of Palau-have entered into as associated states with the United States. Hawaii is bearing the brunt of the cost of medical costs of COFA migrants in that state.
I think this is a fair agreement and should be non-controversial.
These folks were excluded inadvertently by a change in the law that was passed over a decade ago. We have a special relationship with these islands and this will be supported by the fees of this bill.
Amendment Hirono 15 passed by voice vote.
Amendment Grassley 69 is up for consideration. This amendment requires institutions accepting F-1 students to be accredited; mandates suspension of F-1 authorization for certain violations or loss of accreditation; mandates termination if school owner/official is indicted for visa fraud; requires background checks for DSOs; and requires FAA certification of flight schools.
Sen. Grassley:CEVIS is inadequate to protect country from national security threats.
Sen. Schumer: Offers 2nd degree amendment that is accepted.
Sen. Leahy:I support this amendment, maybe you should stop before you talk me out of it.
Amendment Grassley 69 passed by a voice vote.
Amendment Schumer 4 is up for consideration. This amendment provides J status to individuals with skill in languages spoken in countries from which fewer than 5000 immigrants are admitted per year. 2nd degree amendment would require the State Department to publish a list of the countries included.
Amendment Schumer 4 passed by voice vote.
Amendment Sessions 6 is up for consideration. This amendment prevents amendments to the Visa Waiver Program from taking effect until a biometric entry/exit system is fully implemented.
Amendment Sessions 6 failed on a vote of 6-12.
Amendment Klobuchar 1 is up for consideration. This amendment provides immigration status for certain battered spouses and children.
Sen. Klobuchar: This is an amendment that provides relief for a legal immigrant spouse of a temporary visa holder who is an abusive relationship. People in these positions do not qualify for a U visa. These victims have fallen in loophole that is really a trap for them.
Sen. Leahy:Too often abusers use the immigration system to further isolate and abuse their victims.
Amendment Klobuchar 1 passed by voice vote.
Amendment Grassley 77 is up for consideration. This amendment requires the Secretary to implement the transmission of data from the Student and Exchange Visitor Information System to databases used by U.S. Customs and Border Protection.
Amendment Grassley 77 passed by voice vote.
Amendment Hirono 2 is up for consideration. This amendment permits nonimmigrant alien crewman to land temporarily in Hawaii. 2nd degree amendment offered.
Amendment Hirono 2 is passed by voice vote.
Amendment Grassley 68 is up for consideration. This amendment delays the effectiveness of the provisions on dual intent for F nonimmigrants seeking higher degree until the deployment of the 2nd generation Student and Exchange Visitor Information System.
Sen. Schumer: I do have some problems with this because it prevents students who are currently here on student visas from having internships or graduate student teaching roles, or to have any other jobs. This could be a permanent situation, which would make it harder to recruit students.
Sen. Feinstein: I would support this amendment. We don't have a dearth of students who want to come into the United States.
Amendment Grassley 68 failed on a 9-9 vote.
Sen. Leahy: Title IV is now closed except for one amendment each from Senators Hirono, Grassley, Klobuchar, Sessions and Whitehouse. Then we will start Title III with E-Verify. Because this is taking longer than anyone anticipated we will also reconvene on Friday and I hope we don't have to stay-in Saturday, but we will determine that on late Friday night. The committee is now in recess.