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Hearing of the Senate Judiciary Committee on Immigration Plan Mark-Up

Location: Washington, DC

Hearing of the Senate Judiciary Committee on Immigration Plan Mark-Up

Senator Kennedy's Remarks on the Mark-Up of the Specter Immigration Plan

"Mr. Chairman, thank you for scheduling this mark up on immigration reform, a topic I think we all agree is in desperate need of attention.

Congress has struggled almost continuously with immigration policy for the last 30 years, because the issues at stake represent deep structural challenges, and not just political problems to be solved through simple horse trading or partisan slogans. The United States benefits in important ways from immigration. But these benefits are substantially undermined and even reversed when immigrants have no way to obtain legal status. The challenge is to guarantee our ability to recruit the immigrants we need, and prevent the admission of those we're unable to accept.

The demand for effective immigration reform is more pressing today than ever before because the stakes are so high. In the past, we accepted a high level of illegal immigration, because the costs fell principally on the immigrants themselves, who were often brutally exploited. Low-income Americans paid a price too because they had to compete directly with those workers in many sections of the economy. Irresponsible employers were more than willing to ignore the law and benefit from a steady inflow of these low-wage immigrants.

That all changed after 9/11. Our national security now requires us to know who is entering and living in the United States. We can't afford to ignore illegal immigration any more. The vast majority of immigrants are undoubtedly motivated by their desire to work and support their families, but the lesson of 9/11 and the hundreds of terror attacks around the world since then is that some will enter the United States for deadly reasons. We need an immigration system that brings everyone out of the shadows and eliminates illegal inflows.

The stakes are higher because the problem is so large. An estimated eleven million undocumented immigrants now live in the United States. The number grows by half a million more a year. They work in a wide range of jobs in all 50 states. Five percent of all workers in America lack legal status. A generation ago this was largely confined to border states and agricultural jobs, but that's no longer true.

A century ago, it might have been possible to prevent illegal entries by fortifying the U.S.-Mexican border with higher fences and more Border Patrol agents. Today, Mexico is our second-largest trading partner—300,000 vehicles legally cross the border from Mexico every day carrying $650 million in merchandise. The large modern commerce between the United States and our neighbors in the region makes traditional border enforcement obviously inadequate.

In fact, the United States is more dependent than ever on legal immigration. In the last 25 years, immigrants have increased from eight percent of the prime-age workforce to fourteen percent, and dozens of our industries require immigrant workers to remain open for business.

America benefits from such immigration. Immigrants perform jobs which most Americans are unwilling or unable to perform. Economists such as Alan Greenspan say that our relatively open immigration system was essential for our unprecedented growth without inflation in the 1990s. Immigrants are often very entrepreneurial. They were responsible for fully a third of the Silicon Valley start-ups during the high-tech boom. Even the most conservative estimates by economists who are skeptical of immigration concede that the average immigrants pay substantially more in taxes over their lifetime than they consume in services.

Our dependence on immigrant labor will increase in the future because of our native birth rates. Births after World War Two produced 27 percent growth in the prime-age workforce from 1980 to 2000, but that figure will drop to zero between 2000 and 2020, based on the number of native births in the last 25 years. The only opportunity for such workforce growth in the future is through immigration.

We also know that immigrants are concentrated at the high and low end of the skills spectrum where US job growth has been strongest. According to the Bureau of Labor Standards, eight of the ten industries projected to have the most job creation in the next decade are disproportionately staffed by immigrant labor. To a degree not seen since the industrial revolution, the United States depends on immigration to sustain our prosperity and our economy.

Our families also benefit from a relatively open immigration system. One out of ten American children lives in a so-called mixed-status household, in which at least one parent is foreign-born. Millions of Americans today are separated from their homes and their families, and immigration is the only opportunity they have to be reunited with their loved ones in the United States. There has never been a more pressing need to balance immigration enforcement with adequate opportunities for legal immigration.

The fundamental problem is that in today's world there are far more potential immigrants than we're prepared to accept, and it is difficult to reach the proper balance. Poll after poll tells us that what the public wants is both a responsible enforcement strategy and a fair admissions strategy.

The most realistic answer is reform which addresses three basic challenges:

* Developing an efficient and effective strategy for immigration control and for eliminating the undocumented population in the United States
* Ensuring sufficient legal access to the United States to meet the needs of our economy.
* Managing immigration in a way that prevents downward pressure on the wages and standards of working Americans.

I'm encouraged that the bill we have before us embraces all three of these challenges, but in each case the bill still stops short of the fundamental changes needed to bring our immigration policy and our immigration system in line with our national interests.

Our current policies have failed spectacularly. Existing control efforts are unacceptably costly. We now spend nearly $4 billion on border enforcement alone, five times more than in 1993.

Even these costs barely scratch the surface. Current enforcement hasn't deterred illegal immigrants, but it forces them to cross in more dangerous territory and to rely on criminal smuggling rings. 500 immigrants die each year attempting to cross the border in dangerous locations. Border guards are too often poorly trained, and violence at the border makes it impossible to distinguish between job-seeking immigrants and smugglers or potential terrorists. These developments have become a diplomatic disaster and are now the single most contentious issue with our Latin American neighbors. Heavy-handed enforcement is also costly for US citizens living in the border area. These communities bear the brunt of environmental degradation, noise and light pollution, and surging border area violence.

In spite of these rising costs, illegal immigration continues unchecked. Their average annual number has increased from about 40,000 during the 1980s to a half million today. The probability that an illegal border crosser will be apprehended has fallen from 20 percent to just 5 percent during the last decade. Put another way, we now spend $1700 per border apprehension, up from $300 in 1992.

The current indiscriminate approach to enforcement has diverted scarce resources away from the real counter-terrorism work of targeting potential terrorists. The southern border is the one US frontier already under constant surveillance, and most terrorism experts consider it unlikely that terrorists would seek to enter there without inspection. Instead, they're more likely to enter through legal ports of entry under false pretenses, or take advantage of the weaker surveillance and security along the 10,000 miles of the US coastline and the Canadian border.

We need to move away from the current focus on costly and ineffective border fencing, and move toward smarter high-tech strategies which rely on cooperation with Mexico, Canada, and the nations of Central America. Cooperation also means an opportunity to eliminate the pressure for illegal immigrants as its source, by working with other countries to invest in communities of origin.

It is also long past time to develop a system of worksite enforcement that can eliminate the job magnets which attract the most illegal immigrants.

The bill before us contains some of these elements of a smart approach to immigration control. But rather than targeting US enforcement primarily at the criminal networks which make up the infrastructure of undocumented immigration, the bill is indiscriminate in its criminalization of immigrants themselves. Instead of applying the toughest enforcement to illegal immigrants, this bill would radically expand grounds for removal of all foreign-born residents, regardless of their legal status.

These broad new grounds for removal plus new restrictions on rights to due process guarantees that injustice will be done. The cost of excessive and arbitrary enforcement will inevitably be wrongful detention and removal of many legal immigrants and ethnic minorities, in violation of our basic values.

In the long run, the excessive attacks on immigrant rights in this bill will drive a wedge between immigrant communities and enforcement agents, undermine the legitimacy of the system, discourage voluntary compliance, and do far more harm than good. What we need is immigration control which is targeted, tough, and fair, not indiscriminate enforcement.

Four suggestions make sense to me.

First, rather than spend valuable enforcement resources on an endless cat and mouse game with millions of individuals attempting to enter the country illegally, resources should be directed primarily at smugglers, producers and distributors of fraudulent documents, and other organized criminal elements. Targeting these genuine criminals will be far more effective than a scattershot approach. Disrupting the infrastructure of illegal immigrants will do far more to prevent terrorism.

Second, this bill correctly identifies the worksite as a crucial arena for enforcement, but it fails to create the conditions to make such enforcement likely to succeed. In particular, the bill would establish a timeline for universal employer participation in an electronic eligibility system without guaranteeing that database reforms and systems enhancements have been successful in allowing real-time corrections and updates to the verification database. Nor does the bill even define what successful database reform would mean. This shortcoming is significant because we know the existing verification database is deeply flawed. Widespread implementation of a flawed verification system would produce an unacceptable level of wrongful non-confirmations—to the detriment of workers and employers alike. It would undermine the system's credibility and discourage voluntary compliance. By ensuring adequate database reforms up front, we have the opportunity to see that all immigration stakeholders "buy in" to improved worksite enforcement.

Third, this bill takes an important step toward creating new opportunities for immigrant workers to enter through legal channels, not illegally. Yet, by admitting hundreds of thousands of workers on a strictly temporary basis, this bill also lays the groundwork for a new crisis of visa over-stays in the future. We know that temporary work visas will result in social jobs and family and community ties in the United States for the workers and inevitably cause them to stay in this country beyond their visa limit. Immigrants who fall into that category will have typically proven their ability to make lasting contributions to our economy and to our communities. Why would we intentionally design a visa which fails to create a path to permanent status in these cases?

Fourth, this bill fails to respond to the fact that eleven million undocumented immigrants already live in the United States.

Some rule out any legalization as an unacceptable amnesty for those who have broken our laws. I don't favor amnesty, or any blanket offer of relief. But, I do believe we should create opportunities to earn the right to remain in the United States for qualified immigrants who work, pay taxes, pass criminal and security background checks, and learn English.

They've broken our laws, we share some of the blame for looking the other way for so many years. It's wrong to single out these men and women, and their US citizen families and employers and make them bear all the cost of our previous policy failures.

We can debate these philosophical issues, but my concern today is more practical. By failing to offer a durable solution which moves most of these individuals into legal status, the bill undermines its own enforcement provisions. These eleven million workers are deeply integrated in the United States. Even the harshest measures being considered won't give us the ability to remove them. The choice is between providing incentives to come out of the shadows and fully join the economy, or allowing them to continue a culture and infrastructure of illegality. Only a path to permanent status can break this cycle and give us a chance to create an effective system of immigration control.

We also have to ensure America's ability to recruit the immigrants our economy demands. Our current policy fails to respond to this challenge. The labor market absorbs a million immigrant workers each year, but we distribute fewer than 80,000 employment-based visas. Americans with relatives abroad must wait more than 20 years in some cases to be reunited with their families. Overly restrictive numerical limits reduce economic growth and burden employers and families. Restrictive immigration limits also force many immigrants to consider illegal strategies for entering the United States. The mismatch between visa supply and demand has clearly contributed to the crisis we now confront.

These problems can only be resolved by modernizing our visa system to harmonize supply and demand. The bill we have before us takes important steps in this direction by restructuring our family-based and employment-based preferences and by increasing the numerical limits in these categories. Under these reforms, most of those individuals who, in principle, are already eligible to join their families in the United States could expect to receive their visa within just a few years. US employers would benefit from greater ability to recruit immigrants to fill the positions for which US labor is unavailable.

Finally, our reforms should manage immigration without permitting downward pressure on the wages and standards of working Americans. The problem is especially pressing, because we have extensive evidence of two-tiered labor markets in many sectors of the economy, with immigrants concentrated in the lower tier.

Clearly, the regulations governing the temporary worker program described in Title IV of this bill are an important step in the right direction. But, if we are truly concerned about downward pressure on American wages, then these regulations must be strengthened and backed up with tough enforcement provisions. A second refinement should be the use of market-based limits on temporary worker inflows. Such limits are an essential part of our effort to ensure that US workers remain competitive in the labor market.

We can manage immigration and protect US workers by creating stronger protections to ensure that worksite enforcement does not become a method of labor market coercion and ethnic discrimination, as it has in the past. This bill calls for "reasonable safeguards" to prevent unlawful discrimination, but the record of similar anti-discrimination provisions proves that such unspecified safeguards don't work. Protecting US workers requires not only that we prevent illegal employment, but also that we anticipate and head off the predictable disparities in workplace enforcement which have victimized legal immigrants and other minorities in the past.

It's a tall order we face in getting all these aspects of immigration reform right, but we can't afford to ignore any of them. I look forward to working with all our colleagues to do the best we can."

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