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Public Statements

Comprehensive Immigration Reform Act of 2006 - Part 1 -

By:
Date:
Location: Washington, DC


COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006 -- (Senate - May 18, 2006)

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Mr. KENNEDY. I yield myself 4 minutes.

Mr. President, as we all know, yesterday the Senate voted to eliminate the H-2C immigrant's ability to self-petition for green cards after 4 years. I believe that vote was a mistake because it will have a devastating effect not just for temporary workers but for all workers and, basically, for all Americans.

The amendment we offer today would correct the mistake and take the good language from the Cornyn amendment to improve the underlying bill. This amendment will require that the Labor Department certify that no U.S. worker will be displaced by H-2C workers when they adjust to permanent status, as the Cornyn amendment requires. This amendment also restores the ability of H-2C workers to obtain a green card without being dependent on the generosity of the employers.

The self-petition feature of our temporary worker program is innovative and essential to workers' rights. All Americans lose if it is eliminated from the bill.

The reason temporary worker programs failed in the past, going back to the time of the Bracero Program, is because they did not protect workers' rights. For this new program to work without harming U.S. workers, H-2C workers must have the full set of rights. That is why our bill includes extensive labor protections for temporary workers.

Effectively, then, at the time after the 4 years, the individual will be able to make the petition for the green card, and they will also have to have a certification by the Department of Labor that there is no American able and willing to perform that job. There will have to be that kind of a finding. The self-petition gives that worker some rights and respect as an employee instead of being subject to the dangers we have seen in the past of exploitation by an employer that knows that worker can never get a chance to have a petition and can never get on the path for a green card without the employer giving the thumbs-up signal.

When that power relationship between the employer and the employee exists, we have seen exploitation in terms of wages, working conditions, and other unfortunate problems with regard to women.

This seems to be a solid compromise. It takes the framework of the Cornyn amendment, but it will also ensure that these petitioners are going to have to demonstrate there is that gap in terms of the labor market that they are able to fill and that there is not someone out there in the American labor market prepared to take that job. It seems to me to be a very important principle, a very concrete proposal, one I hope we can have accepted this morning.

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Mr. KENNEDY. Mr. President, I have tried to point out this will be a judgment decision that will be made by the Secretary of Labor as to whether there is an American fit, willing, and able. And if there is, they cannot petition.

Now, the Senator says: Well, it is all then up to the employee. But the idea of the whole guest worker is the employer. Why is it good for the employer, who is going to go out and petition and say: Look, I need someone to come work for me. They advertise for 45 days. Then they find out they have someone from overseas who will do that. So the employer is the one who is petitioning there. Didn't have any problem with that.

Now, when we get into the situation after 4 years, they can make the petition on this, if there is a vacancy, according to this proposal, but if there is not a green card available, they do not get it. They might have to wait a year. They might have to indicate 2 years. This is not automatic. There are only a certain number of green cards that are available under this category. They may wait 1 year. They may have to wait 2 years. So it is much more difficult. This is still weighted far against the worker than the employer.

What we were always trying to do in the development of the legislation is to have balance and fairness in terms of the authority and responsibility and the legality on this. I think what we have offered addresses what I understood to be the Senator's concern; that is, that there are going to be American workers out there when this person is getting a green card. Therefore, it is going to be adverse to the American workers. We say, if there is one, they don't get it. That is decided by the Secretary of Labor. And they have to be able to prove their work history through documents and records that are either held by the Government or by the employer. It seems to me that is about as lock safe and secure as you can have in this business. I would hope we would accept this amendment.

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Mr. KENNEDY. Mr. President, identity fraud is a major problem, a major issue in this country, and it ought to be dealt with. We ought to do whatever is necessary to make sure we are going to deal with this issue. I think most of us have seen the various national publications and magazines talking about identity fraud. It is there with the use of credit cards. We have it on telephone calling. We have it for purchasing over the Internet, obtaining access of financial records, and with individuals making illegal withdrawals.

All of that is bad and wrong and violates the law, and we ought to deal with that. But we are talking about individuals who are not involved in identity fraud and have paid into the Social Security fund. Should they have that payment they have made into the fund denied to them? So I am with the Senator from Nevada in trying to deal with identity fraud, but I separate myself from him when he says all illegal immigrants are involved in the identity fraud and, therefore, they should not get credit for what they have paid in in terms of Social Security.

Now, who are we talking about? Basically, we are talking about individuals who have the opportunity to try to earn their position, the opportunity to be an American citizen, who have to pay a fine, have to go to the end of the line for those who are coming into the United States currently, who have to demonstrate they have paid all of their taxes, who have to demonstrate they have been free from violating the law. There are all of those conditions that are set up. But once they have achieved all of those conditions, then they have the possibility of citizenship 11 years from now.

So the issue is, should they be denied the credits they have paid into Social Security? The Senator from Nevada thinks they should.

Well, first of all, who are these people? First of all, his proposal would deprive, for example, widows and surviving children of needed Social Security benefits, even if the widows and children are U.S. born. We will have circumstances where the children are American citizens. The widows might be American citizens.

Now, let's say this individual regularizes their position and has paid into Social Security. If that person dies, their survivors would be eligible for survivor benefits, but not under the Ensign amendment. It is interesting, some 85 percent of immigrant-headed households include at least one U.S. citizen. Under the Ensign proposal, citizen children may not be eligible for survivor benefits if their parents had gained legal status or even citizenship but die before they gained the 40 hours of coverage.

The Ensign amendment effectively would deprive the immigrants who have become legal residents of the right to receive Social Security credits for the payroll tax payments they made on the work they performed when they were undocumented. Some do now.

The 1986 act permitted 3 million people--they received the amnesty. That was amnesty. We did not move ahead in terms of the enforcement against the undocumented afterwards. But that was amnesty. Now they are able to receive the benefits today. We are going to say to them, we are evidently going to cut you off from being able to get any credit because I don't see in the Ensign amendment where they are going to respect their position.

It is important to focus on who would be hurt by this highly punitive proposal. Only immigrants who have attained legal status are eligible to receive Social Security. So everyone this amendment would affect will be legal residents under the terms of the bill. Many of them will even be citizens by the time they apply for Social Security. Those are the hard-working men and women this amendment seeks to penalize.

Those are the individuals who really want to be Americans, be part of the American family. They are going to have to pay the penalty, pay their back taxes, abide by all of the laws, continue to believe in their faith. And then they will have the opportunity to go to the end of the line. And then, in 11 years, they will be able to achieve citizenship. They will be working during this period of time.

They are paying into Social Security. And, finally, when they become citizens--11 years from now--the Ensign amendment is going to say: Well, all right, you paid. You have waited your turn. You paid the penalties all the way along. But you are not going to be able to benefit from paying into Social Security because of identity fraud. Well, I have difficulty assuming that all of those who have paid into Social Security have been a part of identity fraud.

Before this bill passed, these workers were undocumented. But once in the country, they complied with the rules of the workplace and paid Social Security taxes on their earnings. Their payroll tax payments and the matching

contributions of their employers were paid to the Social Security Administration on a timely basis. Those dollars are sitting in an account at the Social Security Administration today. Social Security has a record of receiving these payments. There is no dispute about that.

The issue raised by this amendment is whether these workers should be given credit in Social Security for the hard-earned dollars they paid into the system. Shouldn't the payroll tax payments they made count toward determining the level of retirement benefits and disability benefits they have earned when they reach retirement age or become disabled?

Now, the amount of benefits a worker receives depends on how many years the individual worked and how much payroll tax he or she paid in. I believe it would be terribly wrong to arbitrarily deny these hard-working men and women credit for all the payroll tax dollars they paid into Social Security on the wages they earned. But that is exactly what the Ensign amendment would do.

Most undocumented workers do pay Social Security taxes. Stephen Goss, Social Security's chief actuary, estimates that ``about three-quarters of other-than-legal immigrants pay payroll taxes''--three-quarters of them.

The amounts paid in by them are substantial. Payments into the Social Security system by undocumented workers total $7 billion a year. Unfortunately, most of these workers do not have genuine Social Security numbers, so the money goes into what they call the Social Security Administration's earnings suspense file. This money is identified by the employer who submitted it but not by the individual worker it belongs to.

Each year, Social Security identifies approximately 130,000 employers who submitted W-2s that cannot be matched to a worker. So the undocumented immigrants account for the vast majority of the funds in the suspense file. The unidentified W-2s closely track their geographic distribution and types of employment to that which undocumented workers typically hold. According to an analysis by the GAO, three of the categories of business with the largest numbers of inaccurate W-2s were restaurants, construction companies, and farm operations.

In order to get credit for the payroll taxes he paid in when he was undocumented, a worker would have to prove how much he paid in while working for a particular employer and when it was paid. The burden of proof would be on the worker, and the worker would only receive credit for payments that the Social Security Administration could verify.

Whatever rules and regulations Social Security established, we are for. They ought to be accurate. They ought to be tough. They ought to be fair. But we are not prepared to say that every individual who paid in, who is now in the process, over this 11 years--here, they are paying in. I want to be a citizen. I am paying my fine. I paid my back taxes. My sons have joined the military serving in Afghanistan. We are going to church every single week. And I am paying into Social Security. I wait 11 years, and I finally become a citizen. Under the Ensign amendment, no, no, you are not going to receive any of that. You are not going to receive a cent of that.

So we are all for Social Security establishing whatever requirements are necessary to ensure the integrity of the fund and the accuracy of the work effort by individuals. But I think the only reason for the Ensign amendment is to deny the legal residents the Social Security benefits they have earned and paid for. Their money sits in the Social Security Administration waiting to be matched with an eligible beneficiary. Once those workers establish eligibility, how, in all fairness, can we deny them credit for their past contributions?

This legislation before the Senate sets out a difficult process for undocumented workers seeking to become legal residents. Most of them have very little money. Yet the legislation will require them to pay thousands in fines and fees. It would be wrong to deny them credit for the Social Security tax dollars they have paid from their often meager wages.

Once these workers are legal residents, if they become disabled, shouldn't they be entitled to receive disability benefits based on the payroll taxes they contributed to Social Security? And if they die prematurely, leaving minor children, shouldn't those children--who in many instances are American children--shouldn't those American children be eligible to receive survivor benefits based on the payroll taxes they contributed to Social Security? And when, after a lifetime of hard work, they reach retirement age, shouldn't they be able to receive a retirement benefit based on all the years of payroll tax payments they contributed to Social Security?

This is not a handout. This is not welfare. Social Security is an earned benefit. If these immigrant workers earned it, they should receive it like everyone else. The Ensign amendment would take their hard-earned money and give them nothing in return. That is not the way America operates.

Allowing these workers to receive the Social Security benefits they have earned not only helps them, it serves the interests of the larger American community. They are living amongst us. As I say, many of the children were born here. If they cannot rely on the Social Security benefits they have earned when they become elderly or disabled, on what source of support will they rely? Certainly, the people of this great Nation would not leave them destitute. We all benefit when the earned benefits of Social Security are there for those in need.

So I urge my colleagues to reject this amendment.

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SPECTER. Mr. President, may I inquire as to whether we might be set now to enter into a time agreement on this amendment?

Mr. KENNEDY. Mr. President, I have been here on the floor since the Senator started, and in response, I would be glad to inquire of those who are interested. I think there are some members of the Finance Committee who are interested in this amendment and want to be heard since it deals with the Finance Committee jurisdiction. So I will inquire and report back to the floor manager.

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Mr. KENNEDY. Mr. President, first of all, I commend the Senator for raising this issue. He has been a constant advocate for the families he has spoken about today. And he has communicated with us in the Immigration Committee on so many different occasions about the fairness and the importance of the family unifications and the uniqueness of service that so many of these parents were involved in at a very difficult and challenging time during World War II.

So the Senator from Hawaii deserves great credit for bringing this to the attention of us in the Senate. I speak for the Senator from Pennsylvania, who urges the acceptance of this amendment. This will help provide some very important family reunification. It is entirely warranted and entirely justified.

We thank the Senator for bringing this issue again to our attention and for his continued advocacy on this issue. We will do everything we possibly can to make sure this is carried at the conference as well.

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