Energy Policy Act of 2003 - Continued

ENERGY POLICY ACT OF 2003—CONTINUED

THE CHILEAN AND SINGAPOREAN FREE TRADE AGREEMENTS

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Nevada for the courtesy of allowing me to move ahead with some additional remarks on the Chilean and Singaporean free-trade agreements and on the immigration policy that is attached to those agreements. I have expressed my deep concern about the temporary entry provisions of the free-trade agreements on which we are about to vote. I was prepared to support the trade agreements. However, I believe the USTR has made a terrible mistake in negotiating immigration provisions in these trade agreements, and, thus, delving into areas of authority that should have been left to the Congress.

I spoke to this to some extent on Friday, and I would like to speak again today because I think this is like peeling an onion. The more you look at it, if you look at immigration law, the more you see the major loophole this agreement is creating.

This agreement would create new categories for nonimmigrant visas for free-trade professionals. It would permit the admission, on its face, of up to 5,400 professionals from Singapore and up to 1,400 from Chile each year. That is on its face.

It would require the entry for their spouses and children, so they could join foreign workers in the United States. That, of course, makes it less of a temporary visa program. Those visas can be extended indefinitely. They can be renewed year after year after year ad infinitum. The bill would require without a numerical limit the entry of business persons under categories that parallel three other current visa categories: The B-1 visitor visa, the E-1 trader or investor visa, and the L-1 intercompany transfer visa.

In fiscal year 2002, the State Department issued more than a total of 5,232,492 visas to foreign nationals under the current temporary visa category that parallels those in the free-trade agreement—5.2 million individuals from foreign countries who come here each year and replace American workers in various pursuits.

How many more do we need? This legislation requires the entry of foreign workers in a new way on L-1 visas regardless of whether they are nationals of Singapore or Chile.

I don't think most Members realize that. You can get an L-1 visa now under this trade agreement just if you have been employed by a Chilean or Singaporian country. You don't have to be a citizen of that country. This is particularly egregious, and I will explain why a little later.

The bill would permit but not require the United States to deny the entry of a free-trade professional if his or her entry would adversely affect the settlement of a labor dispute. It would require the United States to submit the dispute about whether it should grant certain individuals entry to an international tribunal. An international tribunal for the first time that I can recall would determine now under this treaty a sovereign right which belongs to the United States of America.

In enacting the Trade Promotion Act, the Congress did not provide the USTR authority to negotiate new visa categories or immigration programs or to impose new requirements on the existing temporary entry system. In fact, the USTR has taken that upon itself.

In negotiating these agreements, the USTR has negotiated a perpetual visa category that we as Members will not be able to modify no matter what the circumstances or the economic consequences may be. Employers can renew these new
employee visas each and every year under the agreement with no limit while also bringing in every year an additional crop of new entrants to fill up the annual numerical limits for new visas.

This makes it possible for foreign employees entering the country on a supposedly temporary basis at the age of 22 to remain until he or she is ready to retire at the age of 70.

That is not what temporary visas aim to do.

In effect, by voting for these provisions we are adding to the U.S. labor market a continuous supply of 6,800 guest workers a year in addition to the more than 40,000 from Chile and the 30,000 from Singapore who came in last year under the existing temporary work categories.

In other words, this is in addition to the 50,000 workers who have already come in from these two countries. I don't believe Members realize that.

These workers come in without taking into account the potential impact on U.S. workers.

By voting on this agreement, we as Members of Congress are effectively ceding our authority to limit the duration of these visas when it is in the national interest to do so because we can't change a thing. We can't change a comma. We can't dot an "i". We can't cross a "t". That is fast track.

Another problematic provision—and we should be very concerned about this—is that the unlimited L-1 visa category included in the Chile and Singapore agreement does not require that these workers be citizens of either Chile or Singapore. They can be from anywhere as long as they are working for a company right now located either in Chile or Singapore.

This means under the agreement, a Chinese or Indian or any other country's multinational corporation with offices in Singapore, for example, can transfer an unlimited number of Chinese or Indian employees to the United States.

What happens if the corporation also has offices in countries hostile to the United States or are state sponsors of terrorism?
Under these agreements, the corporation may send an unlimited number of such nationals to the United States under the E-1 trader visa and the L-1 intercompany transferee visa category.

In other words, these trade agreements create a major loophole through which thousands of foreign workers can come into the country with little scrutiny.

I don't believe there is anybody virtually in this Senate who understands that.

This is the problem of having the USTR negotiate an immigration agreement. They don't understand it either. And I don't think they really understand what has been accomplished here.

Effectively, these agreements permit unlimited entry through Singapore and Chile under the L-1 visa category for any worker anywhere.

In negotiating these agreements, the USTR has eviscerated existing requirements that U.S. corporations first demonstrate that there is a shortage of domestic workers in an industry seeking foreign workers. Every one of us knows that unemployment rates are on the rise. In professional and technical services, it is over 6 percent. In computer and mathematical occupations, it is 5 percent. In architecture and engineering occupations, it is 4 percent. In informational technology, it is 7 percent. In financial services, it is about 4 percent. In business and professional services, it is almost 9 percent.

When there are all of these vacancies, why are we allowing new sources of low-wage labor into this country when we are not facing a labor shortage in any of these industries today? There is no public interest in keeping Americans unemployed in order to accommodate new guest worker programs that would be established by these trade agreements. Quite the contrary. We face the highest unemployment rate in almost a decade, and I can tell you it is high among these worker categories as well.

I think these agreements are going to do no more than foster a race to the bottom where American workers are forced to compete with whatever foreign workers will accept in the lowest wage categories. That is wrong. This trend should be stopped, not exacerbated.

In negotiating these agreements, the USTR has expanded the types of occupations currently covered under the H-1B visa to include management consultants, disaster relief claims adjusters, physical therapists, and agricultural
managers—professions that do not require a bachelors degree. This a weakening of what are supposed to be highly qualified and highly skilled workers. Now they are amending this to permit a whole host of unskilled categories. You don't even have to have a higher education to qualify to come in as a skilled worker in a technical field.

These agreements lower the skill level in another way, too. In negotiating the agreements, the USTR has lowered the standards for which foreign professionals could enter the United States to work. Under current law, H-1B professionals must exhibit—and this is a term of art—highly specialized knowledge in the occupation for which he or she is seeking a visa. This agreement would require the applicant only to possess specialized knowledge. In other words, they are weakening the requirement. You don't need to be highly specialized, just specialized. And then for some, you don't even need to have a higher education.

This distinction is critical because the highly specialized knowledge criteria used under the H-1B program was designed to ensure that employers don't abuse the program to undercut American workers in occupations where there is no skill shortage. I assume that this is a crucial point.

To back that up, neither the trade agreement nor the implementing language would enable the Department of Labor to have the authority to investigate or conduct spot checks at worker sites, as they do now with H-1B visas, to uncover instances of U.S. worker displacement and other labor violations pertaining to the entry of foreign workers. So what this agreement is doing is handcuffing the Labor Department and removing from it specific authority that it has now to go out to investigate and to see whether the law is being abused and domestic workers are being replaced purposefully with foreign workers.

You would say: Well, is this really necessary for them to have this authority? The answer is absolutely. There have been labor violations involving H-1B visas, and not a few but a lot. These violations have jumped more than fivefold since 1998, according to the Labor Department. Back pay awards for such employees who have been replaced have soared by more than 10 times, jumping from about $365,000 in 1998 to over $4 million in 2002. So we know there is fraud going on. What this bill does is just simply eliminate the regulations to eliminate any investigation as to whether the fraud exists or not.

In response to what I have just said about the soaring awards because of fraudulent uses of visas, Labor Department officials have stepped up H-1B investigations. They say there really could be thousands of H-1B workers today who don't file complaints because they fear the loss of their visa.

In the last 5 years, Labor investigated 656 complaints involving H-1B visas. What did they find? They found that out of 308 cases that have become final, the Labor Department found 261 H-1B violations. That is almost a two-thirds rate of violation. Of that number, 227 employers owed 1,413 domestic workers who were replaced by foreign workers almost $8 million in back wages.

This temporary work visa system gives employers tremendous power over immigrants. More than 1 million people already are employed in the United States under visas for skilled workers. The growing trend in H-1B violations is proof that some companies will, in fact, violate and have violated the worker protection laws to protect their bottom line. This is happening now, and in a tough economy it is going to happen more often. Those of us who are elected by workers to protect them, if we vote for this agreement, fail to do our job because this agreement weakens protections. The most offensive aspect of these provisions is that the USTR has bargained away our sovereign right to set the criteria for admitting foreign visitors and workers to our country. Under the agreement, if Congress determines that the visa categories in this agreement should be subject to numerical limits or labor certification, we could well be subject to defending that decision before an international tribunal. So an international tribunal would decide the sovereignty of the United States of America to make these decisions.

During a time when our country is preoccupied with the threat of terrorism on our soil, what protection do we have to prevent individuals from purposely utilizing and abusing this visa process?

In essence, control over employment-based visas will effectively be taken out of the hands of Congress and placed in the hands of corporate executives, the USTR, and countries that are parties to these types of agreements. That is, frankly, unacceptable to me, and such proposals should be rejected by Congress.

I don't think this Congress should relinquish its plenary authority over immigration to any administration, whether it be Democratic or Republican, nor to any country that is party to a trade agreement. It is hard to imagine that against the backdrop of the highest unemployment rate in almost a decade, this administration has negotiated what, in essence, is a permanent guest worker program. That is the hard fact of what is in this bill.

Today in our Nation, 15 million people are unemployed, underemployed in part-time jobs out of economic necessity, or have given up looking for work altogether; 9.4 million are considered officially unemployed. In California, 1.1 million are out of jobs. The average person has been out of work for 20 weeks, a phenomenon this country has not seen since 1948, in over 50 years.

Yet while we are faced with unprecedented unemployment, we are negotiating and accepting a permanent guest worker program.

Beneath the aggregate unemployment numbers is an even more disturbing trend. Unlike past instances of high unemployment, the ranks of the jobless are increasingly populated by highly skilled, college-educated workers. Workers who typically had little difficulty finding a new job are becoming discouraged by their lengthy stay on the unemployment roll.

A recent CBS news segment on the Nation's unemployed captured so poignantly the lives behind the numbers. The Presiding Officer should know that this CBS clip was actually done in his State. The news footage shows a line of cars stretching out of sight down a flat two-lane road in Logan, OH, where the jobless and struggling families were waiting for the twice-a-month distribution of free food by the local office of America's Second Harvest. The head of the agency said: We are now seeing a new phenomenon. Last year's food bank donors are now this year's food bank clients.

CBS reporter Cynthia Bowers observed:

You could call it a line of the times, because in a growing number of American communities these days, making ends meet means waiting for a handout.

There are many reasons for the persistent weakness in the labor market. But I think we are making the situation worse by agreeing to the immigration provisions set out in these trade agreements. Increasingly, American workers have expressed fears of losing their positions to foreign workers who are paid considerably less and whose ability to remain in the United States is often contingent upon their not making trouble from their employer. I must tell you, I didn't believe this 5 or 6 years ago because I was importuned by one CEO after another to vote to increase the quota on H-1B visas.

They all supported me, that there was no abuse. It was only when we began to look deeply into it that we found there was abuse.

Today, more and more out-of-work technology workers are filing complaints with the Government or going to court to protest perceived abuses of temporary visa programs. We cannot simply blame the foreign workers for causing Americans to lose their jobs. It is shortsighted, behind-the-scenes policies such as these visa provisions, negotiated in secret, without any meaningful public hearing, included in trade agreements in small print, that invite a dependence on cheaper, more pliable foreign labor, and thus threaten American jobs.

The scarcity of jobs has left many skilled immigrants more dependent on their employer and less willing to quit if trouble starts. The abuses have been particularly widespread in the high-tech industry, which used H-1B visas to bring in tens of thousands of programmers and other professionals. Remember, it is not just these workers; there are another 5.2 million coming in each and every year. They come in and companies seize upon them.

Let me give you an example of testimony that is going on right now in the Judiciary Committee in the Immigration Subcommittee. A woman named Pat Fluno, a computer programmer and former Siemens employee, is testifying that she and 14 of her colleagues were required to train their foreign worker replacements before U.S. workers were laid off. Their replacements were foreign nationals on L-1 visas. That is exactly the visa program we are establishing in this trade agreement. They were paid one-third the salary the U.S. workers were making. There is no requirement that L-1 visa employers pay the prevailing wage. Ms. Fluno was making $98,000 a year. Her replacement is making $32,000 a year. This is Siemens, and that is what it did to 15 workers.

Unlike U.S. workers, foreign workers on L-1 visas don't pay income tax. Ms. Fluno, before the Immigration Subcommittee of Judiciary right now, estimates that the Federal Government and the State of Florida would lose over $1.1 million in income taxes as a result of layoffs of the 15 employees.

The international consulting firm that Siemens used to obtain the foreign workers knew that the U.S. workers would be laid off, so they did not use the H-1B visas to bring the workers in; they used the underregulated L-1 visa to get around the existing employer protection of the H-1B visa program. That is what we are creating more of in this bill.

This type of abuse really should stop because if we don't stop it, it is going to go on. Look, if you pay an American worker $98,000 and you can bring in a technical worker and pay them $32,000, and it is OK, how would any of our workers ever be able to own a home and raise their kids?

Temporary professional workers are often paid less than American workers despite requirements that they be paid prevailing wage rates. Employers seeking to hire H-1B workers can base their prevailing wage rates on third party salary surveys up to 2 years old. An H-1B worker in a job since the beginning of 2003 might still be getting the 2001 prevailing rate.

I only use this because H-1B is a much more regulated program than the L-1 visa program that is in this bill. You see how they can kind of gerrymander this program by using out-of-date prevailing wage rates.

In December of last year, a New Jersey-based company, Pegasus Consulting Group, was ordered to pay $231,279 in back wages to 19 former employees. Most of them were Indian nationals. The judge also required the company to pay $40,000 in civil money penalties for violating the prevailing wage provisions of the H-1B visa rules. The judge found that some of the employees had gone several months without being paid. So this is happening today.

Our Nation's growing dependence on foreign workers is not—and I originally thought it was—spurred by a lack of skills or education in the United States. In June of this year, an estimated 1.286 million bachelor's degrees were conferred all across the United States, along with 436,000 master's degrees, 80,400 professional degrees, and 46,700 doctoral degrees. In addition, an estimated 633,000 associate's degrees were awarded. We have told, and continue to tell, our young people to acquire more education, to get a skill, to remain competitive in the job market, and they are doing so.

If an advanced degree, years of experience, and a good work ethic are not enough to land a job and to keep a job, what does the future hold for the American worker? Now, for some, the answer to that question is really pretty tragic.

Just in April of this year, Kevin Flanagan, a 41-year-old software programmer, took his life in the parking lot of Bank of America's Concord Technology Center on the afternoon he was told he lost his job. His father said it was the "straw that broke the camel's back." Flanagan knew that his employer, Bank of America Corporation, as other corporations weathering the economic storm, was cutting high-tech jobs and sending them overseas. He applied for other jobs at the bank but didn't receive responses. His father said: "He felt like he was fighting a large corporation that pretty much didn't care."

Kevin Flanagan's death, which is a suicide, underscores the anxiety that has swelled among technology workers throughout this land, at the Bank of America in particular, and elsewhere, as more businesses shift high-tech jobs to foreign workers, even as they cut those jobs in the United States. To add insult to injury, some employers are requiring U.S. workers to train their replacements before they are laid off, and then they see where their replacement worker earns one-third the salary.

So I don't think we should gamble with the lives and livelihoods of American workers with an agreement the consequences of which are so problematic. I really find expanding the least regulated of all the visa categories at a time of economic distress in the United States, at a time when we have so many of our own highly skilled domestic workers out of work and looking for a job, somewhat cynical.

To do this in secret, not do it by virtue of lawmakers who are elected, who know their States, who hold hearings, and then make adjustments to visas is really stealth and very ill advised.

We should never use immigration law as a bargaining chip to negotiate bad trade deals. We should never have offered visas to Chile and Singapore as part of these trade deals, and we should not trade American jobs as part of a free-trade agreement.
That is what we are doing in this trade agreement.

Bear in mind, we already have tens of thousands of workers, highly skilled workers, coming in from Chile and Singapore every year under the H-1B visa. What is cynical here is that the L-1 visa does not have the protections the H-1B visa has, and the Labor Department cannot go out and do an investigation and, therefore, cannot certify that no American worker is being replaced in his or her job. So I have to accept that the reason they are doing the L-1 visa is because they want to do just that: replace American workers with foreign workers. Remember, you can have a Chilean-owned company or Singaporean-owned company, I believe, not necessarily in Singapore, that can qualify under this agreement.

The fast-track process should not undermine Congress's authority under the Constitution, and that is what this agreement does. This is a bad trade bill, a bad precedent, and if this Congress does not stand up for its right to protect the American people, who will?

We asked in the Judiciary Committee for more time. We were denied more time. We asked to send this bill back to the administration and ask them to sever the immigration provisions from the trade provisions, and we were refused in our request. I do not think because immigration law is complicated and every visa program has with it a different set of rules, regulations, procedures, and protocols and that creating more of one of the weakest, in terms of protecting American workers at a time when American workers need the most protection because of rampant unemployment—the highest unemployment in the 10 years I certainly have been in the Senate—seems to me it is not timely, it is not economically
productive except for the bottom line of some companies.

I believe in these remarks I have shown where many of these visas are being misused. I have shown where there is fraud, where there have been back payments made. And I have shown where already without this program, year in, year out, 5.2 million technical foreign workers come into this country without this addition.

I conclude by saying that I think the real angst, if I may use that word, of this bill is for us to accept the abdication of our constitutional authority and power over immigration law. I cannot do that because I represent a very large State that is going to be affected by this trade agreement, and a State where we have 1,100,000 people out of work, a State where the unemployment insurance trust fund is going to be in deficit at the end of next year and workers will not get anything when unemployed.

I think it is not good public policy at a time of economic deprivation for millions of Americans to be bringing in workers who will take a third of the salary of their American counterpart, displace that counterpart, not complain and to, by law, say to the Department of Labor of the United States of America: You cannot investigate any one of these complaints, and you cannot make a determination whether, in fact, an American worker has been replaced unfairly by a foreign worker. We
should not do that.

I thank the Chair. I yield the floor.