Emergency Supplemental Appropriations Act, 2005 - Part I

EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT, 2005 -- (Senate - April 18, 2005)

Mr. CRAIG. Mr. President, I appreciate the Senator from Arizona finally coming to the floor with a piece of legislation. For the last several years, I have challenged the Senate to deal with what I believe, and I think most colleagues believe, is a very urgent problem. Our borders, as much money as we have poured into them and as many new border patrolmen as we have put along them--primarily our southern border today--are still being overrun substantially by illegal people crossing.

While we have been trying, since 9/11, to understand and reform our immigration laws, there has been a great deal of talk, but very little done--some 1,300 days now of high-flying political talk about the dramatic problem that we awakened to post-9/11, and that was that there were between 8 million to 12 million undocumented illegal people in our country--most of them here and working hard to help themselves and their families. But it was obvious there were a few here with the evilest intent in mind: to destroy our country and to destroy us, too.

While I accept the argument, as most do, that comprehensive immigration reform is critical, right now we have a critical situation in front of us as it relates to agriculture. Starting about 5 years ago, and before 9/11, American agriculture was attempting to get the Congress to look at their plight. The plight was obvious and simple--and criticize it if you will--but the reality was that 50 to 70 percent of their workforce was undocumented, and the law we had given them, as the Senator from Arizona has so clearly spoken to, was so cumbersome, costly, and so untimely--and the key to timeliness is when the crop is in the field and ripe, it has to come out or it rots--that American agriculture could not depend on it. The workforce who was seeking the work in American agriculture began to recognize it. If you will, the black market or the illegal processes began.

It should not be a surprise to any of us that when government stands in the way of commerce, stands in the way of an economy, usually people find a way around it. Tragically enough, it happened. But, by definition, it was an illegal way.

Last year, in our country, there were 2 months in which we were a net importer of food. This year, it is guesstimated it could be in as many as 6 months that we will be a net importer of food, and that will be the first time, in the history of American agriculture, that becomes the situation. So why we are here on the floor today debating a piece of a much broader overall immigration problem is because it is urgent, it is important we deal with it, and we deal with it now as thoughtfully and as thoroughly as we can. That is why I insisted that the Senate come to this issue.

I am glad my colleagues have come up with an alternative. I think the provisions in it are quickly thought up. They were criticizing my bill earlier because I offered a temporary visa. They offer a visa. They offered it for 3 years--3 years--as many as 9 years. What I am glad to hear said, for those who argue what we were doing was an amnesty issue, is that it is no longer viewed as that, that we recognize there is a legitimate need for an American agricultural workforce, and it is critically necessary we make it a legal workforce for the sake of our country, for the sake of our borders, and for the sake of American agriculture.

That is what this debate will be all about in the next several hours and tomorrow morning before we vote on this issue. Both sides have accepted a rather unusual procedure, Mr. President--a supermajority procedure. Why? Well, we are germane to this supplemental bill because of what the House did earlier with a Sensenbrenner amendment dealing with what is known as REAL ID. It dealt with immigration and, as a result of dealing with immigration in the House, we were legitimized to do so, in a germane way, in the Senate. We will do that.

At the same time, we all understand that in legislative procedures, on cloture 60 votes are required. We have agreed to do so. Tomorrow, we will vote--first on the Chambliss-Kyl amendment and then on the Craig amendment. It will require 60 votes to proceed. Whether we succeed or fail--and I think I can succeed--what is most important is that the American people are beginning to hear just a little bit about what they have deserved to hear for the last 1,300 days, since Ð9/11 awakened us all to the dysfunctional character and the lack of enforcement of immigration law that has been going on for well over two decades. It was so typical of a Congress that wanted to talk a lot about it but do very little about it.

The Senator from Arizona and I and the Senator from Georgia, without question, agree on the critical nature of American agriculture today. What we also agree on--symbolic by their presence on the floor today, debating the issue and offering an alternative--is that we cannot build the wall high enough along our southern border, we cannot dig its foundation deep enough to close that border off, that it requires good, clear, simple, understandable, functioning law, not unlike the old Bracero Program of the 1950s when we had a guest worker program, when we identified the worker with the work, and they came, they worked, and they went home.

Up until that time, illegal immigration was astronomically high. It dropped precipitously during that period of time when we were identifying and being able to work about 500,000 workers who were foreign national in American agriculture. It was a law that worked.

Then somehow, in the sixties, Congress got it all wrong again. Why? Because they thought they were protecting an American workforce. But what the AFL-CIO found out and why they support my legislation is that there are unique types of employment in this country with which the American workforce will not identify.

I am pleased to hear that the Chambliss-Kyl bill, along with mine, provides a first-hire American approach. We create a labor pool. The employer must first go there, but if that workforce is not available, they do not have to languish there because, in essence, they have a crop to harvest, and the crop is time sensitive. We understand all of that.

I will get to the detail of my bill over the course of the afternoon and tomorrow. This is a bill that for 5 years has been worked out between now over 509 organizations. It is interesting that the Farm Bureau supports the Kyl-Chambliss approach, but they do not oppose my approach. And last year they supported my approach. In other words, they are as frustrated as all of us are about this very real problem of immigration. First they are here and then they are there. What is most important is that we are here on the floor of the Senate this afternoon talking about an issue on which this Senate has been absent way too long.

What the Senator from Arizona, the Senator from Georgia, and I and others who will be on the floor--I see my prime cosponsor Senator Kennedy is on the floor--believe is that this is an issue whose time is coming, and we believe for agriculture it is now because it is critical and it is necessary. We are learning at this moment that as much money as we throw at the border, as many Border Patrol men as we hire, if the law on the other side does not back them up, if the law on the other side does not create a reasonable pathway forward for a workforce to be legal and a workforce that is necessary in this country, then you cannot put them along the border unless they are arm length to arm length from the Gulf of Mexico to San Diego. And even then, those folks have to sleep.

The reality is, we have to get the law right, and the law has been wrong for a great long while. In the absence of a functioning, reasonable law, we have set up for our country a human disaster. Not only do we have an uncontrolled illegal population in our country, but because they have no rights, because of the way they are treated, it is not unusual in the course of a given year to see 200 or 300 lose their lives along the southern border of our country, to see our emergency rooms in Texas, Arizona, New Mexico, and California flooded, to see the very culture and the very character and foundation of our country at risk because we do not control process, we do not control immigration, and we do not do so in an upright, legal, and responsible way.

We are here. We are going to debate this for a time, and there will be much more debate tomorrow. We will have some key votes to see whether we proceed to deal with the bill that I call AgJOBS and that 509 organizations across the country that have worked with us for the last 5 to 6 years call AgJOBS. It is a major reform in the H-2A law. It is a simplification. It is a clearer understanding. It is a reasonable process: The blue card, if you will, or the green card that is acceptable, normal, and understandable and provided in a temporary and earned way, as my bill does, is simply a point in transition, and it ought to be viewed as that.

You will hear the rhetoric that it will allow millions of people to become legal. The Bureau of Labor Statistics, the Department of Labor, does not agree with that at all. The Department of Labor says there are about 500,000 who they think will responsibly and legitimately come forward, and of that, there may be dependence of around 200,000 that are already in this country because that workforce has been here 5 or 6 years or more, for that matter. So those numbers are reasonable and realistic, and that is a moment in time, a transition as we create a law and allow American agriculture to work their way into a functioning realistic H-2A program that is timely, that is sensitive, that meets their workforce needs, and recognizes the value and the production of American agriculture.

If we do not correct this law and correct it now, Americans have a choice because we already decided years ago, based on the character of the work, that most Americans would not do it. They had better jobs and alternative jobs. So American agriculture began to rely on a foreign workforce.

I say this most directly, and I mean it most sincerely. Either foreign workers will harvest America's agricultural produce for America's consumers or foreign workers will harvest agriculture in another country to be shipped to American consumers. Ask an American today what they want. They want a safe food supply. They want an abundant food supply. They hope it would be reasonably priced. But most assuredly, they want to know that it is safe and it is reliable. The only way to guarantee that is that it be harvested in this country, as it has been from the beginning history of our great country. It was not for 2 months last year and possibly not for 6 months this year.

We have a choice to make. We either create a legal workforce, a workforce that is identifiable, or we keep stumbling down this road that no American wants us to go down, and that is to not control our borders, to not identify the foreign nationals within our borders, and to not have a reasonable, legal, and timely process. That is what the debate is all about.

I am pleased to see the other side, having been in opposition for so long, finally say, Whoa, I think maybe we ought to try to get this right. We disagree on process, we disagree on their approach, but there is similarity in many instances on reform of the H-2A program. We will work over the course of this afternoon, evening, and tomorrow to break all those differences out so all of our Senators can see these differences and sense the importance of what we debate.

There are many others who have come to the floor to discuss this legislation this afternoon. I yield the floor so the debate can proceed.

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Mr. CRAIG. Mr. President, I rise to speak about immigration and the issue that will be before us for two very important votes tomorrow. My colleague from Alabama is also in the Chamber. I will take the allotted time under the unanimous consent, and then I think he wants to spend more time on these issues.

What I find very fascinating is that everyone who has come to the Senate floor this afternoon to talk about immigration agrees that our country is in near crisis at this moment for our inability to control our borders, to stem the tide of illegal movement into our country, and to fashion comprehensive or targeted immigration law that effectively works. Simply put, our Federal Government has to do better. It has to move faster in improving our border security and meeting this phenomenally large and important issue of illegal immigration.

Congress is no further along today on a comprehensive bill than it was a year ago at this time when my bill, the AgJOBS bill, had a thorough hearing before the Judiciary Committee. It is now well over 1,300 days since we woke up after 9/11 with thousands of our country men and women dead and a phenomenal frightening awakening on the part of the American people that there were millions of undocumented foreign nationals living in our country.

As I said earlier, while most of them are law-abiding, are here to work, and are extremely hard-working people, we found out tragically enough that there were some here with evil intent, and we began to control our borders. I think that is why Congress then again started beefing up border patrol and buying high-tech verification systems for the Department of Homeland Security, and that is why, whether one agrees on the specific methods or not, the House of Representatives just attached to the legislation we are talking about this afternoon a national driver's license standard and asylum changes, those seeking asylum in our country, in the so-called REAL ID provisions to the Iraq supplemental. That is why I have supported a Byrd amendment on this bill to take money away from certain portions of this bill that are not immediately necessary for our troops for their security and allow our border security to hire more investigators and enforcement agents to boost up that whole area we are so concerned about.

That is why I am cosponsoring a bill that helps States deal with undocumented criminal aliens. We must get it right everywhere if we are going to reinstate in our country secure borders and functional immigration law. That is why I have worked for the last good number of years on AgJOBS. We talk about it here today. What does it mean? It means Agricultural Job Opportunities, Benefits and Security Act. That is why we are on the floor of the Senate today.

Some would argue we ought to be doing the Iraqi supplemental because it is urgent. None of this money is immediately necessary in Iraq. The House took 2 months to craft it. We are going to take a few days to pass it. But I must tell you as I have before, I believe the crisis in immigration today is every bit as significant. No matter the money we pour along the borders, still our borders are not under control, especially our southern border.

Senator Kennedy came to the floor a few moments ago to give a very comprehensive analysis of how he and I, and now over 500 groups, have come together to try to resolve the issue of immigration, specific to American agriculture. Those are the issues at hand at this moment. We are not in any way obstructing the process. This afternoon could have been filled with amendments on the supplemental if those who have amendments would have been here to offer them. We are simply taking time in the debate. We will have those votes tomorrow. If Senators SAXBY CHAMBLISS and JON KYl do not get the necessary 60 votes, or I do not on these issues, they will be set aside. But they will not go away, because I do believe, as I think most Americans believe, somehow we have to get this right. Somehow it is necessary to do so.

I am committed to making this debate as brief as possible. That is why I agreed to a unanimous consent request to conform it and to shape it, but to allow a full and fair and necessary debate. As far as I am concerned, a thorough debate on AgJOBS does not need to take a multiple of days or months. Every Senator knows this issue. Every Senator knows his and her constituents are upset at this moment because somehow Congress has failed to deal with this issue. I have received my fair share of criticism from some of my constituents for offering AgJOBS. I smiled and said: You sent me to work in Washington to solve a problem. I brought the solution to that problem. I believe it is the right one. No one else, except for those this afternoon, has brought a second solution. I welcome all Senators to get involved in this debate and understand the issues. But most importantly, we cannot do what past Congresses have done or what we have done for the over 1,300 days since 9/11, look over our shoulder and say: Oh, boy, that is a big problem; and, oh, boy, our borders are at risk and, yes, some of those illegals could be here to do us harm, but we can't seem to get our hands around it because it is such a complicated issue.

I do not dispute its complications. But I am frustrated that the Senate and the House have literally not been able to act. I believe the Senate has had enough time. As I mentioned earlier, we have seen this bill when it was before the Judiciary Committee. I think most of my colleagues know about AgJOBS. Yes, 63 Senators supported it last year. We are now nearly at 50 at this time. Clearly a large number do support it. I think that is extremely important that we do. It is so necessary that we move appropriately to solve this problem and solve it in a timely fashion. This now gives us an opportunity to do that.

As I said to my colleagues, I have worked on this issue with numerous communities of interest for nearly 5 years to craft what we believe is one of the best approaches to solving the problem, not only recognizing that illegals, the undocumented are a problem in our country, but once they are here, and if they are here illegally, how do we treat them? How does the agricultural economy provide for them and respond to them while they are so necessary in that workforce? That is what is embodied in AgJOBS. It is not simply a threshold of how you transition through. It is in reality a major reform of the H-2A program.
Let's continue with this issue. I am going to stop at this moment. My colleague Senator Sessions is on the floor. I need to step away a few moments. I know he has important things to say--many that I agree with, but there are some I do not agree with.
Don't kick this ball down the field to another day. We look now at a comprehensive piece of legislation. It is very necessary we attempt to solve it now, get this Congress involved, and tell the American people we hear them, we know our national security is at risk, and in this instance our food security is at risk. We need to solve a very important problem.
I yield the floor.

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Mr. CRAIG. Mr. President, will the Senator yield?

Mr. SESSIONS. Yes.

Mr. CRAIG. The Senator is making a very interesting point. Has the Senator looked at the Bureau of Labor Statistics' numbers of those they believe--if the law were passed--are AgJOBS eligible?

Mr. SESSIONS. About a million.

Mr. CRAIG. About 500,000 is what they estimate. When you do all of the very thorough background checks we have within it that are consistent with immigration law today, they figure a certain number would fall out, and then there are the wives and dependents. A very large number of these are not married. They have no immediate family--about 200,000 more. It is reasonable to say the Department of Labor is looking at a total number of workers, spouse, and dependents of upwards of possibly 700,000. I know millions and millions are talked about. I believe that is unrealistic based on the Bureau of Labor Statistics.

Does the Senator disagree with those figures?

Mr. SESSIONS. I will say it this way: I will say it is very likely to be a million.

Mr. CRAIG. Based on what figures?

Mr. SESSIONS. Close to a million, if you take the figure of 700,000. I am not sure we have thought it through.
The Senator, I believe--who was here in 1987 when the 1986 amnesty was passed--would admit that the estimate of how many people would take advantage of it was very low. In fact, I believe three times as many people took advantage of that amnesty as the estimators estimated. It could happen here. I don't know.

Mr. CRAIG. I don't disagree with that. But the criteria was entirely different. If I could be so kind, I think my colleague is mixing apples and oranges and getting an interesting blend of a new juice. An earned status approach has never been used before. The full background check, and the thoroughness of that background check as we anticipate in this legislation, is only used when you have a legal immigrant standing in line. In fact, our law is more stringent for illegal than it is for the legal immigrant because they can get the misdemeanors. We say, if you get a misdemeanor with 6 months' incarceration, that is pretty serious. The Senator from Alabama is an attorney. Would he agree with that? They are out of here. There is a much different criteria when you start comparing the total numbers. That is why I think they would be different.

Mr. SESSIONS. The act says three convictions of misdemeanors. The Senator is right. It can be up to 6 months or a year.

Mr. CRAIG. Then they are deported.

Mr. SESSIONS. Not if there are two convictions.

Mr. CRAIG. That is correct. That is the current law. That is what current law says for the illegal immigrant.

Mr. SESSIONS. It is in the legislation.

Mr. CRAIG. It is in the law.

Mr. SESSIONS. For those here illegally and want amnesty to be given even though they have already violated immigration laws.

Mr. CRAIG. I thank my colleague for yielding. What is important is the bill be read very thoroughly. Extrapolations can be made. But when it says 100 hours of work, I think it is important to assume you would only work 1 hour a day for 100 days. That is not a very logical process.

I thank the Senator for yielding.

Mr. SESSIONS. I agree with the Senator on that. I will disagree with the concept that somehow, by working here, coming here, and getting a job you wanted to get when you came, that that is somehow earning something, if you did it illegally. You are getting what you wanted, which was pay for the work.

That is what I would point out. Then, a family would be automatically eligible to come into the country. I don't think there is any dispute about that.

If a person came here illegally, if they worked here 18 months and met those qualifications of 100 workdays, or 565 hours, I believe--either way, it is not very much--they can come even though they are not here now. In other words, if they did that illegally, worked here and for some reason went back home, then they are getting a letter from Uncle Sam saying, By the way, we know you violated our law but we are in a forgiving mood. You can come on back and join the process toward citizenship and bring your family, too.

I am not sure that is what we want to do. I don't think it is what we want to do. That is the fundamental of this legislation.

I think that is what you call amnesty. Not only does it give the person what they wanted in terms of being able to come into the country and get a job and be paid, that puts them on a track--unless they get seriously conflicted with the law--to be a permanent resident and then even a citizen, and their children and family can be on that same track.

That is a big deal. That is what I am saying. It is not something we need to be rushing into on this legislation today.

Under section 101(d)(8), entitled ``Eligibility for Legal Services,'' it is required under the act that free, federally funded legal counsel be afforded, through the Legal Services Corporation, to assist temporary workers in the application process for adjustment to lawful permanent resident status.

American workers are not always available for that. They have to meet other standards such as need and that sort of thing.

Also, the act gives several advantages to foreign workers not provided to American workers. Look at this.

Section 101(b), rights of aliens granted temporary resident status.

Right here--temporary resident status.

Terms of employment respecting aliens admitted under this section, A, prohibition.

Quoting:

No alien granted temporary resident status under subsection A may be terminated from employment by any employer during the period of temporary resident status except for just cause.

Then they set up a big process for this. There is a complaint process. The subsection sets out a process for filing complaints for termination without just cause. If reasonable cause exists, the Secretary shall initiate binding arbitration proceedings and pay the fee and expenses of the arbitrator. Attorneys' fees will be the responsibility of each party. The complaint process does not preclude ``any other rights an employee may have under applicable law.''

That means they could file under this process for unjust termination and hire a plaintiffs lawyer and sue the business for whatever else you want to sue them for.

Any fact or finding made by the arbitrator shall not be conclusive or binding in any separate action--

That is the action filed in the court by plaintiffs' lawyer--or subsequent action or proceeding between the employee and the employer.

I submit to you, by the language of this statute, it would appear they intend for that to be admissible, if not binding. It says not binding but the implication would be it would be admissible.

This means an employer cannot allow that arbitration proceeding to go without an attorney. He will have to hire an attorney and go down there because things will go wrong and that will be used against him in any civil action that might take place. They have to pay counsel in both places.

This section will override State laws in America. In Alabama, unless you enter into a contract that states otherwise for employment, your work for an employer is at will. Contracts of employment at will mean just that: it is the will of either party. Employees can quit at will and employers can terminate at will, with cause or without cause, and for no reason, good or bad reason.

That is the way I think it is in most States. Certainly that is true in my State. This provision will mean illegal aliens who file for amnesty under the AgJOBs amendment, after coming here illegally in violation of our law, are guaranteed to have a job unless they are terminated for just cause. If the AgJOBS amendment passes, employers of aliens given amnesty will be subject to forced and binding arbitration regarding the termination of the alien, and they will have to cover their legal bills for the defense in arbitrations even if the arbitrator finds they had just cause to terminate the alien.

I suggest what we are about here is a provision for greater protection for a foreign worker, one not only who is foreign but who previously violated American law. If you were an employer and you need to lay off one person, and you have two working for you, and one would have the ability to take you through arbitration and argue that you did not have just cause, and the other one had no such rights, you might fire the American citizen first, not the foreigner.

There is another provision I will talk about later that deals with the filing of the application. The Senator says they will be doing background checks. I see nothing in here that provides for background checks. It requires an application to be filed to become a temporary resident. Get this: It can be filed with two groups who are called ``qualified designated entities.'' That can be an employer group who wants workers to come here to work for them, or a labor group. And they are qualified entities. The application is filed with them.

It prohibits giving the application to the Secretary of Homeland Security unless a lawyer has read it first. It says the entities that receive this application cannot give it to the Secretary unless they are conducting a fraud investigation. How would they know to conduct one if they haven't seen the documents? It might be fraudulent.

It is a rather weird idea, is antigovernment, and seems to be far more concerned with protecting an applicant who may be committing fraud than protecting the security and the laws of the United States.

I yield the floor.

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