S.744 Markup - 5/16/13

On 5/16/2013 the Senate Judiciary Committee held Day Three of the markup on S. 744. The committee first finished four remaining amendments (all passed by voice vote) on Title IV before turning to the E-Verify section of Title III, where they passed seven out of 11 amendments offered. Over half of the amendments on E-Verify were offered by Senator Grassley, everything from delaying the preemption of State and local laws until E-Verify is nationally mandated, to requiring an 18 month implementation deadline for businesses to implement E-Verify nationally to protecting children from identity theft.

However, one of the most contentious Grassley amendments came on the second to last vote of the day. Amendment Grassley 34, which would make document fraud (knowingly transferring, possessing, or using, without lawful authority, a means of identification that is not their own) a crime punishable by up to 20 years imprisonment if such offense is committed to facilitate or assist in harboring or hiring unauthorized workers, turned out to be the only party line vote of the day, failing 8-10.

AILA has compiled a chart listing all the amendments offered during the 3rd 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.

AILA Positions on Selected Senate Title III Amendments. (AILA Doc. No. 13051551.)

Hearing Begins

9:38am Sen. Leahy (D-VT) compares the room the hearing is taking place in to one of the circles in Dante’s Inferno while killing time waiting for a quorum (8).

Amendment Hirono 4 is up for consideration. This amendment provides for the eligibility of the Hong Kong Special Administrative Region for designation for participation in the visa waiver program for certain visitors to the United States.

Sen. Hirono (D-HI): Under current law only countries can be eligible for visa waiver program, but Hong Kong is not a country. Senators Lee and Hatch have signed on as co-sponsors.

Sen. Sessions (R-AL): I have a reluctant opposition. Hong Kong is a part of China, although with their own set of rules and governance. However, we have a huge problem with China not taking back deportees from America and I don’t think we should offer rewards to these countries.

Amendment Hirono 4 is passed by a vote of 14-4.

9:50am the Committee begins consideration of:
Srikanth Srinivasan, to be United States Circuit Judge for the District of Columbia Circuit
Raymond T. Chen, to be United States Circuit Judge for the Federal Circuit
Jennifer A. Dorsey, to be United States District Judge for the District of Nevada

10:14am Amendment Grassley 71 is up for consideration. This amendment limits the duration of Irish E-3 program to Sep 30, 2015; imposes LCA requirement on Irish E-3 nonimmigrants; restores State Department concurrence to 212(d)(3) nonimmigrant waivers for E-3 Irish; divides 10,500 quota equally into specialty occupation, high school diploma or equivalent, and those with 3 years experience; imposes fee of $300 per principal, and $300 per dependent; and other restrictions.

Sen. Schumer (D-NY): Se. Grassley and I have more in common that you might thing, we are the only two "Chucks" left in this Senate. We've always had a program to help Irish immigrants, Ireland and America are bound together by cultural, familial and historical circumstances. Sen. Kennedy has tried to rectify a 1965 law that inadvertently discriminated against the Irish. A two year sunset would mean that by the time it got started up it would be over. I believe Sen. Kennedy is watching over these proceedings.
Sen. Leahy: I will fight for the visas for the Irish community.
Sen. Durbin (D-IL): The honor of representing the city of Chicago, which has quite a few Irishmen, I can tell you that the Irish community has always been in support of immigration reform.

Sen. Grassley withdraws the Amendment Grassley 71.

Sen. Schumer asks that Title IV not be closed in anticipation of an agreement between the two sides on a number of amendments to the Title offered by Senator Hatch (R-UT) to the H-1B program that will be ready early next week.
Sen. Leahy: Well, we have to vote on this at some point.
Sen. Hatch: I appreciate the efforts of my colleagues on the other side of the aisle and I appreciate it being held off for the time being.

Amendment Leahy 2 is up for consideration. This amendment would make permanent the EB-5 regional center program and makes other changes to the program.

Sen. Sessions: This clearly is a job creating immigration amendment as it allows persons to come to America if they're going ot invest and create jobs. And this amendments tightens up background checks and other regulations. Most of us in our states have seen the advantage of foreign investments. We have a number of car plants in my state. This is good for America.

Amendment Leahy passed by voice vote.

Sen. Grassley: I have questions on the "W" visa program.
1. The W visa program is available for foreign workers out of the U.S. to apply. Would someone who is here illegaly, but returns to their home country be eligible to apply.
Flake A: They would be subject to the same 3 and 10 year bars.

2. Employers who apply must try to find a U.S. worker first that is defined as someone who is in RPI status. Does this mean employers must recruit RPI status holders, and isn't this unfair to people who followed the law and are applying from their home countries?
Flake A: Yes.

3. What if a W visa employee is found to be working for a non registered employer?
Flake A: After 60 days their W visa would be revoked if they were not employed by a registered employer.

4. How does an employer know when a W visa holder is admitted?
Flake A: Like with students there is a database, if they don't show up we will know.

5. Why do we say consecutive instead of cumulative for the 60 day unemployed maximum?
Flake A: We'd be willing to work with you on that.

6. Why are there no processing fees for W visa applicants.
Flake A: The fees are pretty extensive that fund the database and the program.

7. Sessions Q: Will the exit of the W visa holder be recorded by a biometric system.
Schumer A: There is no separate exit system than our normal exit system included in the bill.

Sen. Sessions: Sen. Rubio has made it clear that he wants a biometric exit system. I think especially for the W visa system, it cannot be sold to the American people as an effective system if we don't know when people complete the work and leave the country.
Sen. Schumer: When someone comes in and leaves they will swipe their passport and we will know it.
Sen. Cornyn: We don't have a system to track down visa overstays.
Sen. Flake: We can reach a happy medium where we are on a road to biometrics, but we don't hold up an immigration bill while we work toward that.
Sen. Cornyn: Is there a trigger associated with the biometric exit/entry system? What is the hammer?
Sen. Graham: What should the triggers be was a big part of the discussion. And when we decided that AOS could not happen until the entry/exit system was put in place. We've had a Republican president and Republican Congress and Democratic president and Democratic Congress and we haven't made the investment we need to create a biometric system. Let's go with the Hatch proposal to make biometric available at 30 airports, but to make the biometric system a trigger is not the right approach.
Sen. Graham: Every time we have this debate there is always a way the border is not quite secure enough. We spend billions of dollars on the border. The mandatory E-Verify system is the ultimate in border security. I'm against having systems that can never be achieved in my lifetime, the reason we have 11 million illegal immigrants is because the people who come here from the south come from very distressed parts of the world. You cannot build a fence high enough if there are jobs available. Under this bill if you are an employer who hires an illegal worker you will go to jail or lose your business.
Sen. Cornyn: Drug cartel and human traffickers don't use E-Verify or an exit-entry system.

Amendment Grassley 76 is up for consideration. The amendment requires that the electronic system to monitor the presence and employment of W nonimmigrants is fully implemented prior to the admission of W nonimmigrants.

Sen. Grassley withdraws the amendment.

Amendment Schumer 5 is up for consideration, as modified. This amendments makes technical and other changes to the W visa program in the areas including in certain definitions, use and maintenance of the registry, recruitment process, wage calculations and electronic monitoring.

Amendment Schumer 5, as modified, passed by voice vote.

Amendment Cornyn 9 is up for consideration. This amendment eliminates discrimination against the construction industry.

Amendment is withdrawn.

Amendment Whitehouse 1 is up for consideration, as modified. This amendment provides for qualified startup accelerators with respect to nonimmigrant INVEST visas, and for other purposes.

Amendment Whitehouse 1 passed by voice vote.

Amendment Lee 18 is up for consideration. This amendment increases the number of W nonimmigrant visas available during each fiscal year.

Amendment Lee 18 is withdrawn.

Amendment Lee 19 is up for consideration. This amendment limits certain complaints to W nonimmigrants.

Amendment Lee 19 is withdrawn.

11:20: Moving to Title III, E-Verify

Amendment Franken 2 is up for consideration, as modified. This amendment requires annual accuracy audits by DHS OIG. Would limit civil penalties to $1,000 in any year after an error rate above 0.26% was found.

Sen. Franken: I was planning on offering an amendment to delay E-Verify, but I've been told that it would be a deal breaker, and I don't want to be a deal-breaker. The error rate is the number of legal workers who get turned down.
Sen. Sessions: One of the best things in this legislation in the utilization throughout the system is for all businesses to use E-Verify. But now I'm worried about that too, it looks like there could be 18 years before all of this is completed. The current E-Verify system is extremely accurate (99.74% in the last 6 months of 2012).

Amendment Franken 2 passed on a voice vote.

Amendment Grassley 31 is up for consideration. This amendment requires USCIS to provide weekly reports to ICE about non-confirmations.

Sen. Schumer: I agree that the left hand should know what the right hand is doing, but I move to strike lines 9-13 to not force ICE to investigate every non-confirmation and then I'll support it.
Sen. Grassley: I agree with that 2nd degree amendment.

Amendment Grassley 31, as modified, is passed by voice vote.

Amendment Coons 1 is up for consideration. This amendment requires the Secretary to develop protocols to notify individuals that a query for the individual has been processed through the Employment Verification System and to submit other queries.

Amendment Coons 1 passed by voice vote.

Amendment Grassley 38 is up for consideration. This amendment establishes a program that allows parents to limit the use of their children's social security numbers to prevent identity theft.

Amendment Grassley 38 passed by voice vote.

Amendment Grassley 29 is up for consideration. This amendment requires all employers to use the Employment Verification System not later than 18 months after date of enactment.

Amendment Grassley 29 failed on a vote of 5-13.

Amendment Franken 4 if up for consideration, as modified. This amendment provides for the establishment of the Office of the Small Business and Employee Advocate.

Sen. Franken: This will be paid for by RPI fees and is modeled after the IRS office for small business.

Amendment Franken 4 passed by voice vote.

Amendment Grassley 35 is up for consideration. This amendment delays the preemption of State and local laws relating to employment eligibility verification until all employers are required to use the Employment Verification System.

Sen. Grassley: 19 states have enacted laws requiring some component of E-Verify. Why is the federal government fighting the states instead of working with them?
Sen. Scuhmer: We're trying to get a national system rather than a piecemeal approach, so I must oppose it.

Amendment Grassley 35 failed by a vote of 5-13.

Amendment Blumenthal 18 is up for consideration. This amendment prohibits withholding of employment records as an unfair immigration-related employment practice.

Sen. Blumenthal: Creates no new obligation because employers already have to keep these records, it just requires them to share these records with employees.
Sen. Leahy: Both Senators Grassley and I support this common-sense amendment.

Amendment Blumenthal 18 passed by voice vote.

Amendment Lee 15 is up for consideration. This amendment requires intent in certain prohibitions on discrimination based on national origin or citizenship status.

Sen. Durbin: I reluctantly oppose the amendment, but he is creating a new and different standard. The amendment requires a showing of intent, which is a departure from well-established civil rights law.
Sen. Sessions: Under this law can an employer give preference to someone who has not broken the law over someone in RPI status. Once a person become an RPI are they given all the preferences of a USC even though they're not?
Sen. Durbin: The bill states that employers can give preference to a USC over RPI, but that's the only specific statement.

Amendment Lee 15 failed 6-12.

Amendment Grassley 34 is up for consideration. This amendment aGGremends 18 U.S.C. 1028 to make document fraud (knowingly transferring, possessing, or using, without lawful authority, a means of identification that is not their own) a crime punishable by up to 20 years imprisonment if such offense is committed to facilitate or assist in harboring or hiring unauthorized workers.

Sen. Grassley: The Supreme Court said that someone who uses a false document can't be convicted of an aggravated identity theft unless the government can prove that the person knew she was stealing someone's identity. Under this amendment the government only has to prove that the person knowingly used an identification that was not hers, not that she knew it was someone else's.
Sen. Leahy: Adds mandatory minimums and reverses the Supreme Court decision even if you had something as minor as a fake DL number or made a false statement on a government form. It's already unlawful to use a fake social security card or number. This would dramatically change laws that prosecutors are using now, and before we make such a big change to criminal laws we should hear from prosecutors themselves and defense counsel. I believe in tough sentences, but this goes way beyond.
Sen. Durbin: It's already against the law, up to five years in prison. There is a 20 year sentence in here for harboring an undocumented person, so someone who would employ an undocumented person would be subject to 20 years in prison-are we serious about this? This strikes me as excessive.
Sen. Lee: if there are problems with sentencing terms I'm happy to address those. This amendments deals with the existing law that has been rendered unenforceable, because of the "knowingly stealing identity" portion of the current law. I support it.
Sen. Sessions: The big problem in this Supreme Court decision is that it has nullified prosecutors ability to enforce identify theft.

Amendment Grassley 24 failed by a vote of 8-10 (on a party line vote).

Amendment Grassley 36 is up for consideration. This amendment requires that an attestation as to an individual's identity for purposes of work authorization under section 274A of the Immigration and Nationality Act be made by the individual's parent or legal guardian.

Amendment Grassley 36 is passed by a voice vote.

Sen. Leahy: I applaud the members of the committee for finishing earlier than expected. The committee will reconvene at 10:00am on Monday morning (May 20, 2013). In consultation with the ranking member, Sen. Grassley, next week there will be late evening sessions to complete this before the Memorial Day recess. We want the bill to be able to printed over the Memorial Day recess and give other members of the Senate the opportunity to read and debate this bill.

Cite as AILA Doc. No. 13051641.