S. HRG. 113–875 

THE BORDER SECURITY, ECONOMIC 

OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S. 744 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

April 22 and 23, 2013 

Serial No. J–113–15 

Printed for the use of the Committee on the Judiciary 

( 
THE BORDER SECURITY, ECONOMIC OPPORTUNITY, 

AND IMMIGRATION MODERNIZATION ACT, S. 744 
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26–146 PDF 2018

S. HRG. 113–875 

THE BORDER SECURITY, ECONOMIC 

OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S. 744 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

April 22 and 23, 2013 

Serial No. J–113–15 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

MONDAY, APRIL 22, 2013, 10:03 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 408 

WITNESSES 

Witness List ............................................................................................................. 175 

Benjamin, Fred, Chief Operating Officer, Medicalodges, Inc., Coffeyville, Kansas 49 

prepared statement .......................................................................................... 299 

Camarota, Steven A., Ph.D., Director of Research, Center for Immigration 

Studies, Washington, DC ..................................................................................... 111 

prepared statement .......................................................................................... 388 

Conner, Charles, President and Chief Executive Officer, National Council 

of Farmer Cooperatives, Washington, DC .......................................................... 8 

prepared statement .......................................................................................... 183 

Crane, Chris, President, National Immigration and Customs Enforcement 

Council 118, American Federation of Government Employees, Washington, 

DC .......................................................................................................................... 109 

prepared statement .......................................................................................... 383 

Eastman, Alyson, President, Book-Ends Associates, Orwell, Vermont ............... 9 

prepared statement and attachment .............................................................. 196 

Fleming, David, Ph.D., Senior Pastor, Champion Forest Baptist Church, 

Houston, Texas ..................................................................................................... 72 

prepared statement .......................................................................................... 322 

Gupta, Neeraj, Chief Executive Officer, Systems In Motion, Newark, 

California .............................................................................................................. 47 

prepared statement .......................................................................................... 294 

Hira, Ronil, Ph.D., P.E., Associate Professor of Public Policy, Rochester 

Institute of Technology, Rochester, New York ................................................... 45 

prepared statement .......................................................................................... 276 

Jacoby, Tamar, President, ImmigrationWorks USA, Washington, DC ............... 40 

prepared statement .......................................................................................... 244 

Judson, Rick, Chairman of the Board, National Association of Home Builders, 

Washington, DC ................................................................................................... 42 

prepared statement .......................................................................................... 253 

Kephart, Janice L., former Border Counsel, 9/11 Commission, and Principal, 

9/11 Security Solutions, Washington, DC .......................................................... 107 

prepared statement .......................................................................................... 361 

Kobach, Hon. Kris W., Secretary of State, State of Kansas, Topeka, Kansas .... 78 

prepared statement .......................................................................................... 347 

Kolbe, Hon. Jim, a former Representative in Congress from the State of 

Arizona .................................................................................................................. 38 

prepared statement .......................................................................................... 240 

Krikorian, Mark, Executive Director, Center for Immigration Studies, 

Washington, DC ................................................................................................... 74 

prepared statement .......................................................................................... 324 

Lichter, Laura L., Esq., President, American Immigration Lawyers Association, 

Denver, Colorado .................................................................................................. 76 

prepared statement .......................................................................................... 330 
Page

IV 

Murguı ́a, Janet, President and Chief Executive Officer, National Council of 

La Raza, Washington, DC ................................................................................... 70 

prepared statement .......................................................................................... 315 

Norquist, Grover, President, Americans for Tax Reform, Washington, DC ....... 113 

prepared statement .......................................................................................... 399 

Pacheco, Maria Gabriela ‘‘Gaby,’’ Immigrant Rights Leader, Director, Bridge 

Project, Miami, Florida ........................................................................................ 68 

prepared statement .......................................................................................... 310 

Rodriguez, Arturo S., President, United Farm Workers of America, Keene, 

California .............................................................................................................. 6 

prepared statement .......................................................................................... 178 

Shurtleff, Mark L., Partner, Troutman Sanders LLP, and former Attorney 

General for the State of Utah, Washington, DC ............................................... 103 

prepared statement .......................................................................................... 353 

Smith, Brad, General Counsel and Executive Vice President, Legal and 

Corporate Affairs, Microsoft Corporation, Seattle, Washington ....................... 43 

prepared statement .......................................................................................... 259 

Smith, Megan M., Commissioner, Vermont Department of Tourism and 

Marketing, Montpelier, Vermont ........................................................................ 36 

prepared statement .......................................................................................... 233 

Vidal, Hon. Guillermo ‘‘Bill,’’ President and Chief Executive Officer, Hispanic 

Chamber of Commerce of Metro Denver, and former Mayor of Denver, 

Colorado ................................................................................................................ 105 

prepared statement .......................................................................................... 358 

QUESTIONS 

Questions submitted to Fred Benjamin by Senator Sessions .............................. 421 

Questions submitted to Steven A. Camarota, Ph.D., by: 

Senator Grassley .............................................................................................. 410 

Senator Sessions ............................................................................................... 423 

Questions submitted to Charles Conner by Senator Sessions ............................. 424 

Questions submitted to Chris Crane by: 

Senator Grassley .............................................................................................. 411 

Senator Sessions ............................................................................................... 425 

Questions submitted to Neeraj Gupta by Senator Sessions ................................. 426 

Questions submitted to Professor Ronil Hira by: 

Senator Grassley .............................................................................................. 412 

Senator Sessions ............................................................................................... 427 

Questions submitted to Tamar Jacoby by: 

Senator Lee ....................................................................................................... 418 

Senator Sessions ............................................................................................... 428 

Questions submitted to Rick Judson by Senator Sessions ................................... 429 

Questions submitted to Janice L. Kephart by: 

Senator Grassley .............................................................................................. 413 

Senator Lee ....................................................................................................... 419 

Senator Sessions ............................................................................................... 430 

Questions submitted to Hon. Kris W. Kobach by: 

Senator Grassley .............................................................................................. 414 

Senator Lee ....................................................................................................... 420 

Senator Sessions ............................................................................................... 431 

Questions submitted to Hon. Jim Kolbe by Senator Sessions ............................. 432 

Questions submitted to Mark Krikorian by: 

Senator Grassley .............................................................................................. 415 

Senator Sessions ............................................................................................... 433 

Questions submitted to Laura L. Lichter by Senator Sessions ........................... 434 

Questions submitted to Janet Murguı ́a by Senator Sessions .............................. 435 

Questions submitted to Grover Norquist by Senator Sessions ............................ 436 

Questions submitted to Arturo S. Rodriguez by Senator Sessions ...................... 438 

Questions submitted to Mark L. Shurtleff by Senator Sessions .......................... 439 

Questions submitted to Brad Smith by: 

Senator Leahy ................................................................................................... 416 

Senator Lee ....................................................................................................... 417 

Senator Sessions ............................................................................................... 422 

Questions submitted to Hon. Guillermo ‘‘Bill’’ Vidal by Senator Sessions ......... 440 
Page

V 

ANSWERS 

Responses of Fred Benjamin to questions submitted by Senator Sessions ........ 441 

Responses of Steven A. Camarota, Ph.D., to questions submitted by: 

Senator Grassley .............................................................................................. 447 

Senator Sessions ............................................................................................... 450 

Responses of Charles Conner to questions submitted by Senator Sessions ....... 451 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Chris Crane.] 

Responses of Neeraj Gupta to questions submitted by Senator Sessions ........... 452 

Responses of Professor Ronil Hira to questions submitted by: 

Senator Grassley .............................................................................................. 453 

Senator Sessions ............................................................................................... 460 

Responses of Tamar Jacoby to questions submitted by: 

Senator Lee ....................................................................................................... 462 

Senator Sessions ............................................................................................... 464 

Responses of Rick Judson to questions submitted by Senator Sessions ............. 468 

Responses of Janice L. Kephart to questions submitted by: 

Senator Grassley .............................................................................................. 469 

Senator Lee ....................................................................................................... 473 

Senator Sessions ............................................................................................... 481 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Hon. Kris W. Kobach.] 

Responses of Hon. Jim Kolbe to questions submitted by Senator Sessions ....... 483 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Mark Krikorian.] 

Responses of Laura L. Lichter to questions submitted by Senator Sessions ...... 484 

Responses of Janet Murguı ́a to questions submitted by Senator Sessions ......... 485 

Responses of Grover Norquist to questions submitted by Senator Sessions ...... 487 

Responses of Arturo S. Rodriguez to questions submitted by Senator Sessions 491 

Responses of Mark L. Shurtleff to questions submitted by Senator Sessions .... 492 

Responses of Brad Smith to questions submitted by: 

Senator Leahy ................................................................................................... 445 

Senator Lee ....................................................................................................... 442 

Senator Sessions ............................................................................................... 446 

Responses of Hon. Guillermo ‘‘Bill’’ Vidal to questions submitted by Senator 

Sessions ................................................................................................................. 493 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Abrams, Robert, former Attorney General of the State of New York, et al., 

April 21, 2013, letter ............................................................................................ 520 

Asian and Pacific Islander American Health Forum (APIAHF) et al., 

Washington, DC, statement ................................................................................ 495 

Community College Consortium for Immigrant Education (CCCIE), Valhalla, 

New York, statement ........................................................................................... 506 

Community Council of Idaho, Inc., April 19, 2013, letter .................................... 512 

Farmworker Association of Florida, Inc., Apopka, Florida, statement ............... 524 

Farmworker Justice, Washington, DC, statement ................................................ 515 

Human Rights Campaign, Washington, DC, statement ....................................... 527 

Immigration Equality, Washington, DC, et al., statement .................................. 582 

inSPIRE STEM USA, April 23, 2013, letter .......................................................... 534 

inSPIRE STEM USA member organizations, list ................................................. 536 

Kelly Services, Inc., Troy, Michigan, statement .................................................... 530 

Leadership Conference on Civil and Human Rights, The, Washington, DC, 

statement .............................................................................................................. 593 

List of Faith-Based Organizations ......................................................................... 601 

Microsoft Corporation, Redmond, Washington, June 27, 2011, letter ................. 494 

National Association of Attorneys General, Washington, DC, statement ........... 539 

National Association of Former Border Patrol Officers (NAFBPO), Brunswick, 

Georgia, April 22, 2013, press release ................................................................ 537 

National Farm Worker Ministry (NFWM), St. Louis, Missouri, statement ....... 562 

National Governors Association (NGA) and the Council of Chief State School 

Officers (CCSSO), April 24, 2013, letter ............................................................ 510 
Page

VI 

National Immigration Forum, Washington, DC, statement ................................ 543 

New York City Bar Association, New York, New York, Reduced Detention, 

statement .............................................................................................................. 546 

New York City Bar Association, New York, New York, Right to Counsel, 

statement .............................................................................................................. 554 

Rights Working Group (RWG), Washington, DC, statement ............................... 575 

United Migrant Opportunity Services/UMOS Inc., Milwaukee, Wisconsin, 

statement .............................................................................................................. 590 

University of Southern California (USC), Center for the Study of Immigrant 

Integration (CSII), Los Angeles, California, statement .................................... 566 

TUESDAY, APRIL 23, 2013, 9:33 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 135 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 133 

prepared statement .......................................................................................... 611 

WITNESS 

Witness List ............................................................................................................. 602 

Napolitano, Hon. Janet, Secretary, U.S. Department of Homeland Security, 

Washington, DC ................................................................................................... 137 

prepared statement .......................................................................................... 603 

QUESTIONS 

Questions submitted to Hon. Janet Napolitano by: 

Senator Grassley .............................................................................................. 613 

Senator Hatch ................................................................................................... 622 

Senator Lee ....................................................................................................... 624 

ANSWERS 

Responses of Hon. Janet Napolitano to questions submitted by: 

Senator Grassley—Redacted ............................................................................ 626 

Senator Hatch ................................................................................................... 678 

Senator Lee ....................................................................................................... 688 

MISCELLANEOUS SUBMISSION FOR THE RECORD 

Asian American Center for Advancing Justice and the Asian American Justice 

Center (AAJC), Washington, DC, statement ..................................................... 697 
(1) 

THE BORDER SECURITY, ECONOMIC 

OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S. 744 

MONDAY, APRIL 22, 2013 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Schumer, Durbin, 

Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Grassley, 

Sessions, Graham, Cornyn, Lee, Cruz, and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. We welcome everybody here, 

and I am glad we have so many who are here. We have many others who are watching. We are, of course, live streaming this on the 

Judiciary website, as I always do, and I assume that others are 

covering it. 

I would note there are many people here. There are some very 

strong feelings, and I appreciate that. Certainly there are T-shirts 

that give different views, and you have every right to do that. But 

I would urge, as I always do in hearings, whether it is supportive 

of my views or opposed to my views, that there will be no demonstrations, no blocking of people who have waited in line for a 

long time to be here at this hearing. We want to make sure that 

you are respectful of those near you and especially behind you. 

We resumed the hearings on comprehensive immigration reform 

legislation last Friday. Secretary Napolitano was scheduled to appear then, but I think everybody understands that with what happened in Massachusetts, she could not be here. She will be before 

the Committee tomorrow morning. 

Today’s hearing is our fifth immigration hearing this year. It will 

add to the more than 40 hearings—four-zero—that Senator Schumer, Senator Durbin, Senator Coons, Senator Hirono, and I have 

chaired during the last few Congresses on these matters. 

On Friday, we received testimony about the economic impact of 

the bill. Today we will hear about how the bill will impact our 

farming, construction, service, and technology industries. We will 

hear the views of those who have long fought for immigration reform and those who oppose the proposal. We will hear from the re-
2 

ligious community and the business community. We will hear from 

scholars, law enforcement, and advocates. We will also hear from 

witnesses who believe that equality for all under our immigration 

system is not only right, but in our Nation’s interest. 

You know, it is long past time to reform our immigration system. 

We came close in 2006 when Senator Kennedy and Senator McCain 

led a bipartisan effort. In the course of those efforts, Senator Kennedy said the following: 

We believe that immigrants, like women and African Americans 

before them, have rights in this country, and the time is ripe for 

a new civil rights moment. We believe that a nation of immigrants 

rejects its history and its heritage when millions of immigrants are 

confined forever to second-class status and that all Americans are 

debased by such a two-tier system. The time has come for comprehensive immigration reform. 

Well, my dear friends, Senator Kennedy was right. I wish the 

House had joined in our efforts in 2006 and we had completed reforms back then. I am glad, however, that Senator McCain has 

once again joined this effort. It is long past time to get this done. 

We need an immigration system that lives up to American values 

and helps write the next great chapter in American history by reinvigorating our economy and enriching our communities—the kind 

of country that attracted my maternal grandparents here or my 

wife’s parents when they came here and became citizens, productive citizens. 

In Vermont, immigration has promoted cultural richness through 

refugee resettlement and student exchange, economic development 

through the EB–5 Regional Center program, and tourism and trade 

with our friends in Canada. Foreign agricultural workers support 

Vermont’s farmers and growers, and many have become a part of 

the farm families that are such an integral part of the fabric of 

Vermont communities. Among today’s witnesses are two 

Vermonters who will talk about the needs of farmers and the challenges many face under the current system and the way in which 

international tourism and trade is critical to border States like 

Vermont. 

Now, let me point out one thing that has troubled me a great 

deal. Last week, opponents of comprehensive immigration reform 

began to exploit the Boston Marathon bombing. I am a New 

Englander. I spent a lot of time in Boston growing up, and still do 

today, friends and relatives there. I urge restraint in that regard. 

Refugees and asylum seekers have enriched the fabric of this country from our founding. In Vermont, we have welcomed as neighbors 

Bhutanese, Burmese, and Somalis, just as other States have welcomed immigrants looking to America for refuge and opportunity. 

Whether it is the Hmong in Minnesota, Vietnamese Americans in 

California, Virginia, and Texas, Cuban Americans in Florida and 

New Jersey, or Iraqis in Utah, our history is full of these stories 

of salvation. 

Let no one be so cruel as to try to use the heinous acts of these 

two young men last week to derail the dreams and futures of millions of hard-working people. The bill before us would serve to 

strengthen our national security by allowing us to focus our border 

security and enforcement efforts against those who would do us 
3 

harm. But a Nation as strong as ours can welcome the oppressed 

and persecuted without making compromises on our security. We 

are capable of vigilance in our pursuit of these values, and we have 

seen the tremendous work that the local law enforcement as well 

as the Federal law enforcement have done in the Boston area, and 

I am so proud of them. 

The bipartisan effort behind the proposal we are examining 

today is the result of significant work and compromise. In addition 

to the eight bipartisan Members who led the effort, I also want to 

thank Senators Feinstein and Hatch for their work on the provisions affecting agriculture. So I urge everyone on both sides to consider their example as we move forward on this. 

Too often in the recent past this Committee has broken along 

partisan lines on compelling issues. Recently we saw all the Republican Senators on this Committee oppose reauthorization of the Violence Against Women Act. Fortunately, with the help of nearly 

half of the Republicans in the Senate and a great number of Republicans in the House, we were able to enact that important legislation this year. 

Now, we had three Committee hearings, four markups and extensive negotiations on gun laws, but we saw all Republicans on 

this Committee oppose bipartisan efforts to close the gun show 

loophole and enact a tough law against gun trafficking and straw 

purchasing. 

Let us not let comprehensive immigration reform fall victim to 

what we saw in the Violence Against Women Act and guns. The 

challenge now is ours in the Committee. But the challenge is really 

for all of America. Let this Committee set an example and bring 

to the Senate, which should be the conscience of the Nation, the 

opportunity to create an immigration system worthy of American 

values. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. If you want to avoid partisanship, I would 

say let us be very deliberate, and I think you have been very deliberate so far. If you continue that deliberation, I do not think you 

will have any partisanship. 

I want you to take note of the fact that when you proposed gun 

legislation, I did not accuse you of using the Norristown killings as 

an excuse. And I do not hear any criticism of people when there 

are 14 people killed in West, Texas, and demanding taking advantage of that tragedy to warn about more Government action to 

make sure that fertilizer factories are safe. I think we are taking 

advantage of an opportunity when once in 25 years we deal with 

immigration to make sure that every base is covered. 

Today we continue our discussion on the immigration bill that 

was unveiled last Wednesday in a very good work by a bipartisan 

group of Senators. And as they correctly stated, a starting point in 

a process that is going to have to be very deliberative, because we 

were very deliberative in 1986, and you can see we screwed up be-
4 

cause at that point we only had three million people crossing the 

border unlawfully. Now there are 12 million people that have. 

As some of the authors of that bill have emphasized, the Border 

Security, Economic Opportunity, and Immigration Modernization 

Act is a starting point. Now, there are 92 other Senators that must 

get their chance to amend and improve this bill in a deliberative 

process. 

Let me begin by saying that a critical part of the bill that we are 

discussing is the first 59 pages. And as people read through this 

bill, I hope you will pay special attention to those 59 pages. 

This is the border security section that triggers the kickoff of legalization, because if we do not secure our borders up front, there 

will be no political will and pressure from legalization advocates to 

do it later. 

To summarize, the bill requires the Secretary of Homeland Security within 6 months that a bill is signed into law to submit a comprehensive southern border security strategy as well as a southern 

border fencing strategy. After those so-called plans are submitted 

to Congress, the Secretary can start processing applications to legalize the 12 million people that are in the United States. The result is that the undocumented become legal after a mere plan is 

submitted despite the potential that the plan could be flawed and 

inadequate. Additionally, the bill provides $6.5 billion in emergency spending 

to be available for various border security enhancements to be used 

under the discretion of the Secretary. While I understand the need 

for such an investment, there is no congressional input on either 

the Secretary’s plan and the funding that she will have at her disposal. 

Now, I have not read every page in this bill yet, but from what 

I read, I find a great deal of congressional authority delegated to 

the Secretary. It reminds me of the 1,693 delegations of authority 

in the health care reform bill that makes it almost impossible for 

the average citizen to understand what might be coming down the 

road. 

More importantly, the bill does nothing to improve the metrics 

that this and a future administration will use to ensures that the 

border is truly secure. Congress passed a law in 2007 requiring 

that 100 percent of the border be 100 percent ‘‘operationally controlled.’’ However, President Obama and Secretary Napolitano 

abandoned that metric. 

The bill before us weakens current law by only requiring the 

southern border to be 90 percent effectively secured in some sectors, only the so-called high-risk sectors. What about the other six 

sectors? 

Then before green cards are allocated to those here illegally, the 

Secretary only has to certify that the security plans and fencings 

are ‘‘substantially deployed, operational, and completed.’’ If the Secretary does not do her job, then a commission is created to provide 

recommendations. This is just a loophole that allows the Secretary 

to neglect doing the job. 

Another area of interest for me is the employment verification 

measures. As I said before so many times, I was here in 1986 when 

we, for the first time, made it illegal for employers to hire undocu-
5 

mented individuals. I have been a champion for making the E– 

Verify system a staple in every workplace. It is a proven and valuable tool to ensure that we have a legal workforce. While I am encouraged that the bill includes E–Verify, I am concerned that the 

provisions will render the program ineffective as an enforcement 

tool. 

The bill fails to put this system in place for everyone for almost 

6 years down the road. After regulations are published, the biggest 

employers in the country will have another 2 years before they are 

required to check their employees. 

If we are legalizing and providing work permits in 6 months, 

why must we wait up to 6 years for everyone to comply? The system is ready to be deployed right now nationwide. 

Finally, on E–Verify, the bill fails to require or even allow employers to verify their current workforce and is only prospective in 

nature. I am also concerned about the Secretary’s ability to exclude 

individuals with ‘‘casual, sporadic, irregular, or intermittent’’ employment, however they may be defined. And then why we do not 

define those terms, I do not know. 

I am interested in hearing from our witnesses about whether the 

bill fixes the problems in our immigration system. Everyone, including myself, says the system is broken. Aside from legalization 

from those who are here and potentially for the family members 

who are not and the clearing of backlogs, what does the bill do to 

fix the system? What improvements will ensure that we are not 

back here in the hearing room 30 years from now to revisit the 

issue? Will the new legal guest worker program be effective? Will 

small business and U.S.-based companies be able to compete nd 

find high-skilled workers to grow the economy? Will American 

workers truly come first? Will we incentivize people to come here 

legally and deter them from overstaying their visas once it has expired? These are questions I have. 

But in regard to border security, security is what is the basis of 

the sovereignty of any nation. We must have independent authority 

over our borders. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

We will hear first from Arturo Rodriguez. He has served as the 

president of the United Farm Workers since 1993. He has spent 

much of his life working to establish fair working conditions for agricultural workers in the Western United States. He is no stranger 

to this Committee, and, of course, Senator Feinstein, who has 

worked so hard on these agricultural matters, I know has met and 

talked with you a great deal. Please, Mr. Rodriguez, go ahead. 

Senator GRASSLEY. Mr. Chairman, I ask that Senator Cornyn be 

given 5 minutes because he was not here Friday and because he 

is the Ranking Republican on the Subcommittee. 

Chairman LEAHY. Could I ask if he takes that during his question time? And I will—I know you were not here, and, incidentally, 

I stated publicly that if I was in your shoes, I would not have been 

here either. 

Senator CORNYN. We had 14 dead in West, Texas—— 

Chairman LEAHY. I said publicly I would have been there—— 
6 

Senator CORNYN [continuing]. Which is the reason I was there, 

and I understand and I appreciate the Ranking Member pointing 

out the reason for my absence. 

Chairman LEAHY. I also did. 

Senator CORNYN. My only concern, Mr. Chairman, is if I am— 

that takes away time that I have for questions for the panel. I appreciate—— 

Chairman LEAHY. No, no. I am going to give you an extra 5 minutes so you can do both. 

Senator CORNYN. I will be happy to. Thank you. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. And I did state publicly at the hearing that I 

commended you for being in Texas and that is the place you had 

to be, as did Senator FEINSTEIN. 

Mr. Rodriguez. 

STATEMENT OF ARTURO S. RODRIGUEZ, PRESIDENT, 

UNITED FARM WORKERS OF AMERICA, KEENE, CALIFORNIA 

Mr. RODRIGUEZ. Well, thank you, Chairman Leahy, Ranking 

Member Grassley, and Members of the Subcommittee. Thank you 

for the opportunity to testify today. My name is Arturo Rodriguez, 

and I have the honor of being President of the United Farm Workers of America. Tomorrow will mark the 20th year since our founder, Cesar Chavez, passed away, so we think it is very appropriate 

that we are here today on this historic day to talk about the future 

of American agriculture. I want to give a special thank you to Senator Feinstein, with whom we have worked for years to solve this 

problem, and Senator Hatch, who unfortunately could not be with 

us here today, with whom we have worked very closely, especially 

over the last several months, and who helped us in forging this 

agreement and bringing together the parties to deal with a crisis 

that we face in American agriculture and to provide stability in the 

years to come. 

Last week, both Chuck Conner, to my left, and I proudly joined 

other agricultural employers and agricultural workers in supporting a policy proposal put together by Senators Feinstein, 

Hatch, Bennet, and Rubio that will strengthen our Nation’s agricultural industry. 

The proposal is part of the broader, more comprehensive immigration policy submitted last week by Senators Schumer, McCain, 

Durbin, Graham, Menendez, Flake, Bennet, and Rubio. It is great 

to see so many of you on this Committee today. 

Thankfully, many of you on this Committee are very committed 

to fixing our broken immigration system. As someone born and 

raised in Texas and with almost all of my extended family in 

Texas, I am proud that both Texas Senators are on this Committee, 

and I hope to leave here today knowing that I can count on the 

support of Senators Cornyn and Cruz to advance this proposal in 

addition to those of you with whom we have worked so hard. 

Both farmers and farm workers have worked together over the 

last 5 months with the support of Senators from both political parties, representing very different regions of the country, in the interest of improving our Nation’s agricultural industry and securing 

our Nation’s food supply. 
7 

We have worked so hard to come together, and we ask you as 

Members of this Committee to come together to support this proposal because America’s farms and ranches produce an incredible 

bounty that is the envy of the world. The farmers and farm workers that make up our Nation’s agricultural industry are truly heroic in their willingness to work hard and take on risk as they 

plant and harvest the food all of us eat every day. 

But our immigration system threatens our Nation’s food supply. 

The UFW and our Nation’s agricultural employers have often been 

at odds on many policy issues, but we have now come together to 

unify our Nation’s agriculture industry. We are in a unique moment in our Nation’s history, and together with a lot of work, you 

on this Committee can make the changes we need to secure our 

Nation’s food supply. 

Let me speak a little about what is at stake for the women and 

men who work in the fields. Every day across America, about 2 

million women, men, and, yes, even children, labor on our Nation’s 

farms and ranches, producing our fruits and vegetables and caring 

for our livestock. At least 600,000 of these Americans are U.S. citizens or legal residents. Our migrant and seasonal farm workers are 

rarely recognized for bringing this rich bounty to supermarkets and 

our dinner tables. And most Americans cannot comprehend the difficult struggles faced every day by farm worker families. Increasingly, however, America’s consumers are asking Government and 

the food industry for assurances that their food is safe, healthy, 

and produced under fair conditions. 

The life of a farm worker in 2013 is not an easy one. Most farm 

workers earn very low wages. Housing in farm worker communities 

is often poor and overcrowded. Federal and State laws exclude 

farm workers from many labor protections other workers enjoy, 

such as the right to join a union without being fired for it, overtime 

pay, many of the OSHA safety standards, and even workers’ compensation in several States. Farm worker exclusion from many of 

these basic Federal laws, such as the right to organize, in the 

1930s is one of the sadder chapters of our history. 

With any new immigration policy, first and foremost we seek an 

end to the status quo of poverty and abuse. We should not continue 

to treat farm workers as second-class workers. We also know that 

any new immigration policy must consider the future of the workforce upon which American agriculture depend. 

I want to thank this Committee very much for the opportunity 

to be here today and certainly will answer any of the questions 

that the Committee might have in regards to this. 

Thank you very much. 

[The prepared statement of Mr. Rodriguez appears as a submission for the record.] 

Chairman LEAHY. Well, thank you very much, Mr. Rodriguez. 

Our next witness is Charles Conner. He serves as the president 

and CEO of the National Council of Farmer Cooperatives since 

2009. He served as Deputy Secretary and Acting Secretary for the 

U.S. Department of Agriculture in the Bush administration from 

2005 to 2009. I might say on a personal note, both during the time 

when I was Chairman of the Senate Agriculture Committee and 

when I was Ranking Member, Mr. Conner was one of the most val-
8 

uable staff people working there. He was relied on heavily by both 

Republicans and Democrats for his advice. 

Go ahead, Mr. Conner. 

STATEMENT OF CHARLES CONNER, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, NATIONAL COUNCIL OF FARMER 

COOPERATIVES, WASHINGTON, DC 

Mr. CONNER. Chairman Leahy, thank you for those comments, 

and Ranking Member Grassley and Members of the Committee, 

thank you for the invitation to testify today on American agriculture’s need for immigration reform. 

As noted in your introduction, I am Chuck Conner, president and 

CEO of the National Council of Farmer Co-ops. But I am also here 

as one of the founding members of the Agriculture Workforce Coalition, or the AWC. The AWC brings together nearly 70 agricultural 

organizations that represent the diverse needs of agricultural employers across the country. The AWC came together because, increasingly, finding enough workers to pick crops and care for animals has become the number one priority for many of our members 

across the country, in all regions of the country. 

I dare say that for many producers, this immigration legislation 

and this debate before us is more important to the survival of their 

operations than any other legislation pending before Congress. 

We have all seen reports of crops left to rot in the fields because 

growers lack sufficient workers to bring in the harvest. It is estimated that in California alone, some 80,000 acres of fresh fruit and 

vegetable production has been moved overseas because of labor 

shortages here in the U.S. 

The problem extends to animal agriculture as well, especially 

dairy. A study by Texas A&M found that farms are using immigrant labor supplies on more than 60 percent of our farms in this 

country producing milk. Without these employees, economic output 

from this study was estimated to decline by nearly $22 billion, and 

133,000 workers would have lost their jobs. 

As many of you know, the formation of the AWC represents a 

significant change from where we have been in the past. For many 

years, American agriculture has spoken with many and oftentimes 

conflicting voices on the issue of immigration. Today, as the AWC, 

we speak with one unified voice. This unity in agriculture extends 

beyond just the employer side, though. The AWC has also engaged 

the United Farm Workers Union in arriving at a landmark agreement on agricultural immigration reform. It is a great pleasure 

that my fellow panelist today, Arturo Rodriguez, president of the 

UFW, joins us in support of this legislation. 

I would also like to emphasize that reaching this agreement 

would have been simply impossible without the leadership, tenacity, and commitment of Senator Dianne Feinstein. Senator Feinstein, joined in the process, of course, by Senator Marco Rubio, 

Senator Bennet, and Senator Hatch, fostered a spirit of unity that 

was ultimately necessary to produce this agreement. 

The agricultural provisions in this legislation represent our best 

chance in over a decade or longer to solve the labor shortage in agriculture. The program outlined in the bill includes two key compo-
9 

nents: a blue card program for current experienced farm workers 

and a new agricultural visa program to meet future labor needs. 

Agriculture today admits the reality that a majority of our current workforce is undocumented, despite producers’ good faith efforts to verify the status of their employees. In the short-term, the 

legislation provides that current undocumented farm workers 

would be eligible to obtain legal status through this previously 

mentioned blue card program. But the legislation also realizes that, 

in time, these blue card workers will likely move on to jobs in sectors of the economy far beyond just agriculture. 

To ensure that we do not end up back where we started in 5 or 

10 years, the bill includes a new, flexible and market-based agricultural worker visa program. Importantly, the new visa program will 

be administered by the U.S. Department of Agriculture. This is a 

significant change from the current regime administered by the Department of Labor, which has demonstrated a complete lack of understanding of agriculture and our labor needs. Additional information on agriculture’s unique labor needs as well as the details of 

the proposal can be found, of course, in my lengthier written statement which was submitted for the record, Mr. Chairman. 

I thank you again for this opportunity to testify on behalf of so 

many in agriculture today, and I do look forward to any questions 

that you have at a later time. 

[The prepared statement of Mr. Conner appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you, and it is good to see you back 

here on the Hill. 

Alyson Eastman is the president of Book-Ends Associates, agent 

of H–2A business services for employers of agricultural workers 

based on Vermont. Her family has a long tradition of farming in 

Vermont. They currently own a 278-acre farm in Orwell, Vermont. 

Orwell is not only one of the prettiest parts of Vermont, but it is 

certainly one of the most significant agricultural parts of our State. 

Ms. Eastman, please go ahead. 

STATEMENT OF ALYSON EASTMAN, PRESIDENT, 

BOOK-ENDS ASSOCIATES, ORWELL, VERMONT 

Ms. EASTMAN. Good morning. My name is Alyson Eastman. At 

Book-Ends Associates we have been assisting H–2A employers 

since 1993. 

First, I would like to thank Chairman Leahy, Ranking Member 

Grassley, and all Members of the Committee for providing me the 

opportunity to appear before you today on behalf of the agricultural 

employers that I represent in Vermont, New Hampshire, and New 

York as an H–2A Agent. As a member of the National Council of 

Agricultural Employers and through my work with U.S. Apple, I 

have traveled to DC on several occasions, including two bipartisan 

meetings with U.S. DOL officials and Members of Congress, which 

took up the better part of each day. 

There is bipartisan agreement that the current system is broken 

and that the H–2A program as it stands today is nearly impossible 

to use. A shared challenge faced by all farmers seems to be finding 

legal and experienced laborers who can provide the agricultural 

employers with competence, predictability, and stability. The pro-
10 

posed bill would be useful as it no longer draws a distinction between the seasonal and non-seasonal employers such as dairy 

farmers. This will allow dairy farmers to hire workers, and also 

some of their workers could even be considered for legalization. 

A common misconception is that H–2A seasonal guest workers 

are displacing U.S. domestic workers. In our office, we not only facilitate the application paperwork for employers, but in some cases, 

we also process their payroll. There is a direct correlation between 

the hiring of H–2A and the hiring of domestic employees. Forrence 

Orchards in Peru, New York, in 2012 applied and petitioned for 

224 H–2A workers. The majority, roughly 200 of these workers, 

only worked for an 8-week harvest period. These foreign workers 

created 50 year-round domestic jobs. Their payroll for fiscal year 

ending 6/30/12 was just short of $2.4 million. 

Without the H–2A workers, employers would not find it possible 

to harvest the crops according to the quality method and, therefore, 

would not have a marketable crop. All employers will tell you that 

it requires appropriate timing and skilled labor to pick produce in 

such a way that will ensure a quality product and market opportunity. 

Employers face many challenges with the current H–2A process, 

and the majority agree the issues are simply because U.S. DOL 

does not understand ag. The application process is very time sensitive, starting at 60 days prior to date of need. It is nearly impossible to get the workers here in a timely fashion due to the convoluted process and the unnecessary Notices of Deficiencies. These 

employers are in the H–2A program because they want a legal, reliable, and experienced workforce. It would be most advantageous 

for USDA to facilitate the application process as they understand 

the needs of ag. 

I think back to August of 2010 when there was no movement of 

the workers because Department of State was notified by U.S. DOL 

not to let any of the Jamaican workers enter the country due to 

an investigation of Jamaica Central Labor. Thankfully, Senator 

Leahy’s seasoned staff quickly sprung into action. An agreement 

was reached within a week, and each employer signed an affidavit 

that they would not take any deductions from the workers’ pay for 

JCLO. Another 48 to 72 hours and we would have seen thousands 

of bushels of apples on the ground nationwide as a total crop loss. 

Needless to say, our office did not get any sleep for a straight 

week just knowing that crop insurance would not cover this type 

of loss. 

It is important to H–2A employers such as Barney Hodges at 

Sunrise that he can continue to get his experienced workers back 

each year. Barney has said, ‘‘Without these experienced workers, 

my orchard would be crippled, and we would be done farming and 

look at developing.’’ 

Please note the term ‘‘experienced,’’ and also note the fact that 

these H–2A workers have returned year after year to the same 

farm. 

In conclusion, the only con I see with the proposed name is the 

W–2 and W–3 visas since all employees’ annual wages are reported 

on a Form W–2 and the gross employer wages are reported on a 

Form W–3. 
11 

The pros certainly outweigh the cons. I feel that the employers 

will be in favor of the written part of the bill which refers to an 

employer’s ability to give preference to the loyal H–2A worker who 

has worked for the employer 3 out of the last 4 years. Also, the 

logic behind the proposed wage rates seems much more 

commonsensical and affordable. 

I believe that those undocumented workers also follow much of 

what is said above. It would be a great opportunity for the employers to obtain a legal workforce and provide them with stability. The 

public does not seem to understand that these undocumented workers have been paying into Social Security and Medicare with the 

expectation that they would never benefit from it. It seems ludicrous to me to even consider sending all the undocumented workers 

home as it would significantly impact our Social Security and Medicare funding, while at the same time losing those folks who support 

our farms by doing jobs that Americans simply do not want to do. 

No doubt that whether one is referring to an undocumented ag 

worker or an H–2A ag worker, they share the following in common: 

these workers are ambitious, they are here to work, they want to 

please their employers and improve their lot in life, and they are 

willing to do jobs that we cannot get Americans to do. Let us not 

forget through doing these jobs that Americans do not want to do, 

they, in fact, create jobs on the farm for the U.S. domestic workers. 

I conclude by stating a solid immigration bill will solidify and 

solve many of these ag issues that employers are facing today. 

Thank you again for providing me with this opportunity to testify. I look forward to answering any questions. 

[The prepared statement of Ms. Eastman appears as a submission for the record.] 

Chairman LEAHY. Well, thank you, Ms. Eastman, and I thank 

you for using those real-world examples. I remember very well the 

question with the apple pickers. Thank you for complimenting the 

staff. I may get the credit, but they are the ones doing the work. 

And I know a lot of meetings we had, a lot of phone calls with you, 

a lot of phone calls with others, and a number that I could make, 

but they did the leg work. And as a lifelong Vermonter, I worry 

about those crops, too. 

Ms. EASTMAN. Absolutely. 

Chairman LEAHY. They are such a significant part of our bases. 

Also, the H–2A program is open to temporary and seasonal agriculture employers. We can take care, assuming it works right, we 

can take care of apple pickers, but then we have dairy farmers, and 

Senator Franken and I have both noted that you cannot tell the 

cows, ‘‘We will be back in 6 months to milk you again.’’ They do 

not react well to that. 

So how would the proposed agricultural worker visa in the legislation help both seasonal and year-round workers? 

Ms. EASTMAN. Sir, I think it would definitely help in many ways, 

allowing for the workers to not only be here year-round, milk the 

cows, and I think, too, when you face both types of visas, whether 

they are going to come in for one employer or they have the ability 

to move between employers, all of that seems very advantageous 

and in effect will take care of dairy farmers. 
12 

When I look at how the H–2A works today and I see that, you 

know, poultry, some of our farms are year-round and they do have 

the ability to get H–2A seasonal workers only because it is seasonal work that they are doing. However, the milking of the cows 

does not wait. 

Chairman LEAHY. We see a lot of dysfunction in the current H– 

2A program. Do you think we should be giving the Department of 

Agriculture a greater role in the visa program? 

Ms. EASTMAN. Absolutely, and I think most of us agree on that. 

I have got a prime example of the U.S. Department of Labor that 

I think everybody can understand. When we petitioned for 18 peak 

seasonal workers to come and process turkeys, the job employment 

period was from 10/13 to 12/3. It was clear they were going to come 

to process the turkeys for Thanksgiving. We received a Notice of 

Deficiency from the Department of Labor and they wanted to know 

who was doing these jobs when these seasonal workers were not 

here. And we had to respond and show 2 years’ worth of payroll 

and have it notarized as an affidavit saying that it was true to 

prove that they were needed here to process turkeys for Thanksgiving. So I am not sure really what is on their table at Thanksgiving, but they clearly did not understand that need. 

Chairman LEAHY. I understand. I know you have a couple other 

examples which we will put in the record, because I do want to ask 

Mr. Rodriguez. I want to set an example and keep to my own time 

here. I know how he was one of the chief negotiators in discussions 

over the agriculture title, and I would note again, everybody that 

has been involved in this has had to give some. I hope people realize on this Committee that there has been a lot of giving on both 

sides. 

There is one area, though, in this legislation, can you tell us how 

this is going to help prevent the exploitation of undocumented farm 

workers? 

Mr. RODRIGUEZ. First of all, I want to thank the folks from the 

agriculture industry that we worked with and certainly Senator 

Feinstein and the rest of the Senators who were there with us, because they really helped fashion the discussions in such a way that 

we really talked about the various issues that affected all of us. 

But I think all of us in the end, Senator Leahy, wanted to make 

sure that we had an agricultural industry in this country that was 

viable and that we could all respect and be proud of here in our 

Nation. It was very important for us to establish an agreement 

here that would honor the farm workers and the work that they 

do as well as ensure that the ag industry is going to have the supply of labor that is necessary, the skilled professional farm workers 

that they so need to harvest their crops, and for the dairy industry 

and other industries. 

And so, you know, we feel that there are a lot of protections that 

are here in the legislation that will ensure the protection of the existing farm worker labor force that is here right now. The current 

force are going to have an opportunity to legalize themselves via 

the blue card program. And that will provide great opportunities 

for stabilizing families, stabilizing the industry, and providing a 

good product for American consumers. 

Chairman LEAHY. And living conditions. 
13 

Mr. RODRIGUEZ. Certainly the living conditions would be very important, and, again, we worked very closely in discussions with the 

agriculture industry, and they were very open to ensuring that that 

did exist here within this legislation, such as providing housing or 

housing vouchers. 

Chairman LEAHY. Thank you. 

And, Mr. Conner, I know you worked with a number of people, 

with Tom Nassif of the Western Growers, lead negotiator on your 

side. I know there was a lot of give and take when you worked with 

Senators Feinstein and Hatch. But if we get these reforms, do you 

feel pretty satisfied this is going to be not only better for the country but better for agriculture? 

Mr. CONNER. Senator Leahy, there is no question, and let me just 

underscore, this is a compromise piece of legislation from our 

standpoint. You know, the negotiations were extremely difficult, 

but in the final product, we believe we have a balanced proposal 

that protects those farm worker interests, as Arturo has described, 

but at the same time provides an opportunity for U.S. agriculture 

to do what it does best, which is produce high-quality, low-cost 

products so that we are not continuing to import more and more 

of our food supply, which is what we are so strongly against. 

So there is no question it is the right balance. We believe it provides us that opportunity because of the legalized workforce 

through the blue card program, for our existing trained, skilled 

workers. But equally as important is the new guest worker program that contains both an at-will as well as a contract provision 

so that the seasonal as well as the livestock industry can get the 

workers they need in the future. 

Chairman LEAHY. I thank all three of you, and I will yield to 

Senator Grassley. 

Senator GRASSLEY. I am going to make a little statement before 

I ask specific questions, and if there is anything in my question or 

my statement that is incorrect, I hope you will correct me. 

It is my understanding that the legalization program for agricultural workers mirrors in part the main legalization program in the 

bill. It gives undocumented people up to 2–1/2 years to come forward and apply. It provides a blue card for people who can prove 

that they have worked in agriculture for some time. It gives the 

same status to spouses and children. Ag workers pay an initial fine 

of $100. 

Also like the main legalization program, the Department of 

Homeland Security is required to provide any alien it apprehends 

after the date of enactment with an opportunity to file an application. Those in removal proceedings get the same benefit. During 

the time the application is pending, the undocumented person cannot be removed. They cannot even be detained. If an application is 

denied because it does not have sufficient evidence, the undocumented worker gets another bite at the apple. 

Going to my first question, this is the way I read the bill, and 

so I want you to tell me whether or not I am right or wrong. The 

bill provides legal status to ag workers right away. Then they must 

wait 5 years before gaining citizenship. However, the Secretary 

only has to submit a plan, not implement it. So the border does not 

have to be secured before millions get citizenship. 
14 

Would that be an accurate interpretation of the legislation before 

us? 

Mr. RODRIGUEZ. I would just say, Senator Grassley, that it is my 

understanding of the legislation is that the agricultural workers 

will, yes, be given an opportunity to obtain legal status to work in 

this country immediately. However, it will take at least 5 years to 

meet the requirements for working in the agricultural industry to 

gain permanent residency, not citizenship. 

Senator GRASSLEY. Okay. 

Mr. RODRIGUEZ. And the reason for that, the thinking behind 

that and the discussions, is that the reality—— 

Senator GRASSLEY. You do not have to justify that. 

Mr. RODRIGUEZ. Okay. 

Senator GRASSLEY. It was in relationship to whether or not citizenship for this group of people could be possible without the border being secured because of the time period. 

Mr. CONNER. Senator Grassley, if I could just supplement that 

very quickly, I will tell you, in order to be eligible for the blue card 

program, which eventually can then be, as Arturo has pointed out, 

converted into a green card, you have to have a history of substantial agricultural work already in this country. 

Senator GRASSLEY. Sure. I got you. 

Now, I want to give a quote here from somebody commenting on 

the 1986 legislation as it deals with agricultural workers and following up on what Senator Leahy said, the extent to which it is 

better for agriculture—and I do not disagree with what you said 

about that, Mr. Conner—but because there are lessons to be 

learned from mistakes that we made in 1986. 

This is a quote from Phillip Martin, Professor, Agricultural Economics, Davis: ‘‘The exit of illegal immigrants granted special agricultural worker status and subsequent permanent residence from 

the farm workforce since the early 1990s reflects a different phenomenon. Falling real wages and shrinking benefits encourage special agricultural workers to seek non-farm jobs as the economy improved in the 1990s. The special agricultural workers who left farm 

work were replaced by newly arrived, unauthorized migrants. By 

1997 to 1998, it was estimated that the special agricultural workers were only about 16 percent of the crop workers.’’ 

So, Mr. Conner, are we not afraid or should we not be afraid that 

giving legal status and eventual citizenship to people who are here 

illegally will only repeat the mistakes we made in 1986, putting the 

ag industry in the same position in the long run? In other words, 

this whole thing comes about because farmers come to us and tell 

us they need these workers. Okay. We bring in these workers. 

Then they migrate someplace else, and people illegally came in 

afterwards. How do we avoid that mistake we made in 1986? 

Mr. CONNER. Senator Grassley, your question is a great question, 

and it goes to the heart of, fundamentally, the basis of our negotiation that has been occurring in Senator Feinstein’s office for the 

last 3 or 4 months. The blue card program for our current existing 

trained workforce is an important component, but an equally important component is we do not know with absolute certainty over 

the next decade or so what is going to be the status of those workers that will be receiving these blue cards. Will they stay in agri-
15 

culture? In order to get the green card, they have to stay in for a 

very long time. The law requires that. But beyond that, we do not 

know for sure, and that is why we have had very difficult negotiations over then the second part of that, which is the guest worker 

program, and to make sure that it is both at-will and contract so 

that it serves all of agriculture. Because we know at some point we 

are going to need additional workers beyond the highly trained 

skilled workers that are currently doing the work in this country, 

that are likely to get a blue card, there will be additional workers 

needed down the road. 

So we have got to have a viable, workable guest worker program. 

The current H–2A program is not that program. If we had the blue 

card program and our existing H–2A, I can assure you we would 

be back here in a few years, Senator, telling you that we have got 

a big problem. That is what we have got to avoid. 

Senator GRASSLEY. My time is up, but we have got to make sure 

we do not make the same mistake we did in 1986. 

Chairman LEAHY. Thank you. 

We have two unique situations on the Committee, as we mentioned, with Senator Cornyn who had to be absent, and all of us 

understand why. There is no question he should have been in 

Texas, and he was. The other is Senator Feinstein, who is head of 

the ag negotiations, both are going to be given some extra time 

with the consideration of other Senators, and I will yield first to 

Senator Feinstein, and then we will go to Senator Sessions, I guess. 

Senator FEINSTEIN. Thank you very much, Senator Leahy. I very 

much appreciate this opportunity. Thank you very much, and I 

want to thank our witnesses here today. 

Also, Chuck, I hope you will thank Tom Nassif for the negotiation of those specific wage numbers. 

Arturo—it is hard to call somebody by their last name when you 

have sat for so many hours together. So I want you to know that 

I do not know a labor leader in this country who cares more about 

its people, who is more dedicated, more reasonable, and I want you 

to know that it has just been a real pleasure to work with you. 

And, Chuck, I can say the same thing. The sessions were long. 

They were 6, 7 hours at a time. You all negotiated over weekends. 

We went back and forth. 

Through the course of this, it was easy to sort of come out with 

what was necessary. One was that there was a deep belief that a 

lot of the BLS studies on wage rates were skewed, and, therefore, 

we needed a new process. The farmers wanted specificity of wage. 

We have that for the farm worker. We have a way of increasing 

it. We have a way of putting all of this under the Department of 

Agriculture. 

The Secretary of Agriculture will make his FSAs, his Farm Service Agencies, which exist in each State, available, which should 

help farmers. 

The thing about the farm workers was to find a way to recognize 

the skills that exist in farm work and to try through a program to 

see that what evolves out of this is a professional class of worker 

who can be proud. 

The blue card we expect—and this is very rough—would apply to 

700,000 to 1.1 million workers. It exists for 5 years. You have to 
16 

have worked ag for a specific number of days and hours for 2 years 

prior to getting a blue card. You would be vetted. You would have 

to pay taxes, a fine, et cetera. No major criminal activity. You get 

your blue card. Then you have to work another 5 years, dependent 

upon the number of days a year. And then you get a green card. 

The H–2A program which exists, only 74,000 workers this past 

year, will cease to exist within a 2-year period, and it would be replaced by two visa programs. Chuck spelled them out: a contract 

program which replaces H–2A, and an at-will portable visa program. They are both 3 years. There is a cap on both of 112,000 a 

year for the first 5 years. That totals 300,000 plus, and then the 

Secretary of Agriculture in the future sets the cap. The AEWR 

wage rate, which is the adverse wage rate, is phased out and replaced by this new methodology within—I think it is a year after 

the effective date of passage of this bill. 

This has not been easy to put together, and I appreciate Senator 

Grassley’s comments, but I want him and others to know that we 

tried to figure what you were aiming at and compensate for it in 

terms of making the kinds of changes that would have a stable 

workforce out there for farmers. 

My staff has prepared comments from each State that have come 

in with respect to the need. We have 100 copies, and we would 

make it available to anyone that would like to provide additional 

information. But I think every State is in here. 

It is as close to coming to a national crisis with respect to retaining this country’s agricultural prowess as anything. Farms cannot 

farm because they do not have a consistent supply of workers. They 

cannot get their contractors. They do not know what to pay them. 

I mean, I sat next to a woman who operated a turkey farm in California that between the wage rates and the high price of corn because of ethanol had to shut down her business. That should not 

be the case in the United States. And we think that we have a solution to that. 

Now, let me go to the questions, and whoever would like to answer this. This bill would require all employers to ensure a legal 

workforce at some point by using E–Verify. Very controversial 

when it comes to agriculture. Employers with more than 5,000 employees would be required to use E–Verify no more than 2 years 

after regulations are published. Smaller employers would have 3 

years, and agricultural employers would have to comply within 4 

years. 

DHS Secretary Janet Napolitano shared with this Committee in 

February that the United States Citizenship and Immigration 

Services recognizes the need and the unique nature of ag and has 

developed a pilot program to test the use of E–Verify in agricultural settings. I am waiting to receive an update from DHS on the 

status of this pilot, but, Chuck Conner, let me ask you this question: Is DHS working with your organization and other ag industry 

groups to test the E–Verify pilot program? 

Mr. CONNER. I am not aware of anything at this point, Senator 

Feinstein, but we can provide any updates based upon surveying 

our membership for the record. 

Along those lines, I will just say we appreciate the fact that in 

the legislation there is some recognition of really the small busi-
17 

ness aspect of American agriculture and the fact that producers are 

moved, if you will, somewhat to the back of the line in terms of 

that being, you know, fully enforceable under the E–Verify system. 

Because we will have new programs up and running, we recognize 

there will be glitches here and there, but ultimately our goal here 

is to have a program where every farmer, no matter how small, 

that they have access to the workers they need without incurring 

enormous expense that we know they just simply cannot do. 

Senator FEINSTEIN. Well, then, let me ask everybody here, Arturo 

and Chuck and Ms. Eastman—I do not know you as well as I do 

the other two—to please weigh in with DHS. They must work with 

you. This is controversial in agriculture, and I know there are some 

bumps in the road that we are going to have to work out. But we 

should get that done as soon as we possibly can. 

The Chair is not here, but I will say to the Ranking Member, 

Senator, I really believe, with hour after hour and week after week, 

that we have done the best we could to put together a bill which 

satisfies your concerns and also enables farmers in America to get 

a consistent supply of ag workers. So I hope that this will be possible to pass, even unamended—perhaps there will be a few things, 

but this has been a negotiated agreement over a substantial period 

of time. 

And I know, Mr. Conner, you represent the American farm worker here as well as members of sheep and dairy and all the others, 

as well as Ms. Eastman. 

And, Arturo, there were the Farm Workers Union in this, and 

you were really outnumbered by farmers. You held your own, and 

I think you got good protections for your workers, and I think you 

really perform in the best interests of not only the union movement 

but the workforce of this country. So I just want to compliment 

both of you very strongly. 

Thank you, and I would like to recognize Senator Sessions—and 

the Chair is back. 

Chairman LEAHY. Thank you. Senator Sessions, go ahead. 

Senator SESSIONS. Thank you. 

Well, this is an odd conversation, it seems to me, as we deal with 

this. I believe the interest that needs to be protected is the national 

interest of the United States, and that includes existing workers 

today, workers whose wages have been pulled down without doubt 

by a large flow of labor, low-wage labor into the country, and this 

bill would continue that in a way that is very disturbing to me. 

For example, for the last 10, 15 years, maybe more, wages have 

not kept up with inflation in America. Julie Hotchkiss, an economist at the Federal Reserve in Atlanta, says, ‘‘As a result of the 

growth in the share of undocumented workers, the annual earnings 

of the average documented worker in Georgia in 2007 declined 2.9 

percent, or $960.’’ 

So I would say that it is interesting that we have union members, we have business people, they meet and they reach an agreement, and this is somehow presumed to be the interest of the 

United States. So I would reject that fundamentally. We need to 

ask what is in the national interest. 

I am also dubious about the idea that there are jobs Americans 

will not do. I worked construction in the Alabama sun, hauling 
18 

lumber and stuff. I know Americans do that every single day. It is 

tough work. It is done every day. Where I was raised, when I 

was—when they talked about how we should think about that, we 

were told to respect people who did hard work and not to say it 

is a job an American will not do. Any honorable labor is good. 

The last jobs report showed 486,000 people dropped out of the 

workforce. We determined that about a fifth of that only is retirements; whereas, only 88,000 jobs were created. And so I worry 

about these kind of things, and I think we need to ask that. 

It seems to me that the ag industry is saying that we are entitled 

to a certain number of workers, we demand those workers. And, 

Mr. Rodriguez, this can have the long-term impact of reducing the 

salary of people who have entered lawfully, people who get legalized today, immigrant workers. So their wages are at risk, too, as 

the years go by. 

So I just would say that the immigration policy of the United 

States should be established based on the national interest. 

Now, we are examining this legislation and found a lot of surprising facts. I am not sure the bill’s sponsors fully understand it 

or not. But I think it could prove fatal to the legislation, and we 

are going to have to look at a number of those things. 

With regard to the ag workers program, Mr. Rodriguez, do you 

know how many people would be legalized, if you do, under this 

program immediately? 

Mr. RODRIGUEZ. The potential is, as Senator Feinstein mentioned 

a little bit earlier, Senator Sessions, that somewhere in the range 

of between 800,000 to 1.1 million, our best estimate right now, individuals that we know that are here in the country. 

Senator SESSIONS. Could some of those obtain legal permanent 

resident status in as little as 3 years? 

Mr. RODRIGUEZ. No, sir. They could qualify to be able to do that, 

but no one will be allowed to gain permanent legal residency until 

after 5 years in the program. 

Senator SESSIONS. So they would get LPR status after 5. 

Mr. RODRIGUEZ. That is correct. 

Senator SESSIONS. Now, other people in the country would wait 

10 years. We have been hearing 10 years. But agricultural workers 

would be able to get LPR status in 5. Is that correct? 

Mr. RODRIGUEZ. That is correct, sir. 

Senator SESSIONS. And that entitles them to certain benefits. 

Mr. RODRIGUEZ. It actually just gives them an opportunity to be 

able to stay here, to work in agriculture, to be able to ensure that 

they do not have to fear immigration services or anything of that 

nature. So they will be able to stabilize their families as well as 

provide the skilled labor to stabilize the agricultural industry. 

Senator SESSIONS. But in the future, under the agricultural act, 

immigrants that come to replace people presumably who move on 

to other jobs under this provision of the act, they will come for 

what period of time? How long will they get to come and stay in 

the country initially? 

Mr. RODRIGUEZ. The workers that are currently here right now? 

Senator SESSIONS. No. In the future. 

Mr. RODRIGUEZ. In the future? Well, there is a provision here 

with the—— 
19 

Senator SESSIONS. Mr. Conner wants to be sure he has all he 

needs—— 

Mr. RODRIGUEZ. Right. 

Senator SESSIONS [continuing]. To keep his wage rates at the levels he would like to—— 

Chairman LEAHY. Let Mr. Rodriguez answer the question. 

Senator SESSIONS. I am letting him answer. I am just discussing 

here. 

Mr. RODRIGUEZ. There is a new visa program that has been established that would allow folks to apply for and get 3-year visas 

as opposed to the way it currently is right now, and that is to deal 

with issues like Ms. Eastman was talking about a little bit earlier. 

I mean, we have dairy workers and the dairy industry is now included. It is a year-round business. 

Senator SESSIONS. So they would come for 3 years. Would they 

be able to bring their families? 

Mr. RODRIGUEZ. No, they would not. 

Senator SESSIONS. And after 3 years, do they have to go home 

or could they stay? 

Mr. RODRIGUEZ. They have to go home for a period of time, and 

then—— 

Senator SESSIONS. How long is that? 

Mr. CONNER. If I could, Senator Sessions, for the at-will and contract guest workers, they are eligible for a 3-year work visa. They 

are eligible for one renewal of that visa, so that combined is a total 

of 6 years. And after that 6-year period, they have to spend at a 

minimum 3 months, if you will, back in their home area. 

Senator SESSIONS. Over 3 years—how many months at home? 

Mr. CONNER. No touchback during 3 year period. 

Senator SESSIONS. Well, so a person could stay for 6 years. They 

get pretty deeply attached to this country in that period of time. 

Are you going to ask them to go home then? 

Mr. CONNER. Well, to follow on to that, obviously they have to 

have—— 

Senator SESSIONS. Will you ask them to go home at the end of 

6 years? 

Mr. CONNER. Yes. They will no longer be eligible because they 

can only get two of those 3-year visas during that period. 

Senator SESSIONS. My time is up, but I think that is where we 

are. I do not think we are going to be hunting down those people 

and seeking to deport them if they do not leave. 

Chairman LEAHY. I am trying to provide time for everybody. Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman, and, again, I want 

to thank you for your continued leadership, support on immigration. I cannot thank you enough for agreeing to consider the bill 

our little group filed last week. I would like to make a few general 

comments and then get into ag. 

Generally, as an initial matter, I would like to point out that our 

immigration bill has received widespread support and praise 

among law enforcement, business groups, labor unions, religious 

leaders, conservative thought leaders, and immigration groups. It 

is no accident that all of these folks were standing with us last 

week as we introduced the bill. This is not just a few narrow spe-
20 

cial interests. These are some of the leading groups that represent 

tens of millions of people in America. 

And, on the other hand, the only witnesses who are willing to 

testify against the bill today are three individuals from the socalled Center for Immigration Study, an organization whose stated 

goal is to reduce immigration to the United States and who invented the concept of self-deportation; the author of S.B. 1070, the 

controversial Arizona law that was so far to the extreme it was 

stricken down as unconstitutional by the Supreme Court; and the 

head of the ICE union who has been an outspoken critic of immigration. 

So to call all the groups for it, as my good friend from Alabama 

does, ‘‘special interests’’ and then to have these three witnesses 

who are far narrower, far more special interest, and, in fact, have 

opposed any immigration reform for a very long period of time is 

not right. These three are not mainstream witnesses. The American people are overwhelmingly in favor of immigration reform. 

That is what every poll says. And they—— 

Senator SESSIONS. Would the Senator yield? 

Senator SCHUMER. No, I will not. 

Senator SESSIONS. Would the Senator yield? 

Senator SCHUMER. No, no. And they will not be satisfied with 

calls for delays and impediments towards the bill. 

I would say to my colleagues—and I understand their views are 

heartfelt—that the Chairman has a very open process. So if you 

have ways to improve the bill, offer an amendment when we start 

markup in May and let us vote on it. I say that particularly to 

those who are pointing to what happened, the terrible tragedy in 

Boston, as, I would say, an excuse for not doing a bill or delaying 

it many months or years. 

Senator GRASSLEY. I never said that. 

Senator SCHUMER. I did not say you did. 

Senator GRASSLEY. I never said that. 

Senator SCHUMER. I did not say you did, sir. 

Senator GRASSLEY. I did not say—— 

Senator SCHUMER. I do not mean you, Mr. Grassley. 

Senator SESSIONS. Mr. Chairman, I do not appreciate the Senator—— 

Chairman LEAHY. We are—— 

Senator SESSIONS [continuing]. Demeaning the witnesses that 

have come here. 

Chairman LEAHY. Let me finish. We are going to have probably 

the most open process on this. There will be debate in the Committee. We will have time for it. I have even—as Senator Grassley 

knows, I have even offered some extra time on this. And let us 

keep on. We will have the debate. I expect we are going to have 

a lot of debate. 

Senator Schumer. 

Senator SCHUMER. And I thank you. I was not intending—those 

remarks were not aimed at anyone on this Committee or the three 

witnesses. There are people out there—you have read it in the 

newspapers—who have said it. And what I am saying is if there 

are things that come up as a result of what happened in Boston 

that require improvement, let us add them to the bill, because cer-
21 

tainly our bill tightens up things in a way that would make a Boston less likely. The changes in the exit-entry system of visas, requiring the 11 million people here to register, and all of that make 

it a tighter bill. 

Now, maybe it should be made tighter still. We are open to that. 

That is all I am saying, because I have heard lots of calls from people out in the country saying delay it. 

What our bill does, very simply, is add billions of additional dollars towards border security and border fencing, tracking immigrants who overstay their visas so they can be apprehended, and 

reforming our immigration courts to expedite deportation of dangerous individuals. Individuals currently here would finally have to 

register with the Government, give us photos and fingerprints. All 

of that will make America a safer place, and that is what I am saying here. 

So the status quo has none of these things, and, therefore, no responsible person should be aiming to keep the status quo in order. 

Let us move forward. Let us have this debate. It is an open debate. 

Let us discuss all amendments from all points of view. But let us 

not keep our present system, which everyone admits is broken. 

On agriculture, I just want to thank Senator Feinstein for her 

great work, and Senator Hatch and the members of her group. 

They have done an amazing job, and I thank the three of you. You 

are a good example of what we need in America, which is people 

coming together. None of you got everything you wanted, but you 

knew you each did a lot better than the present status quo. That 

happened in agriculture, and I hope that will happen in the bill. 

And my one question for Ms. Eastman is very quick, because my 

time is about to run out. Vermont’s agricultural market is very 

similar to New York’s. We have the same problems. We have a fellow in Ontario County, one of the largest cabbage growers in the 

country, who did not plant cabbage this spring because he cannot 

get labor to pick it up. A huge amount of cabbage, a huge number 

of jobs, a huge amount of produce that the American people are deprived of. And this bill will rectify that situation and give him and 

many others the labor they need. 

So could you just mention how the bill keeps Northeast growers 

competitive with growers from the rest of the country and why it 

is good for the Northeast and New York? To Ms. Eastman. 

Ms. EASTMAN. Without much time, I would like to narrow it 

down to the fact that the bill does actually allow employers at an 

affordable rate to employ legal workers. The way the H–2A program is right now with the paperwork, the timelines, it is so difficult to comply with, and the wage rates are just exponential. You 

know, the fact is—I will give you a quick example. 1091 is the adverse effect wage rate in New York and in Vermont, and you take, 

say, apple producers. The wage rate, piece rate right now in 

Vermont is $1 per bushel for handpicked ciders. In New York, it 

is 62 cents. There is no consistency, and those are done by the Prevailing Wage Survey, and there is nothing overseen on that, nor regionalization of wage rates, the housing, the transportation. It is 

very expensive. And yet it does provide legal workers. It is difficult 

to get them here. 
22 

So I think, you know—and with the United States Department 

of Ag facilitating the process, it is going to be transparent, I believe. They understand ag, the need behind this, and keep in mind, 

I would like to let Mr. Sessions know, Senator Sessions know that 

we do have employers that open up and they have to, through the 

H–2A program, hire any willing, able, qualified individual. Anybody is qualified because in the State of Vermont we cannot require experience. The Department of Labor says we cannot require 

experience. We have orchards—and I would invite you to come visit 

them during harvest in August. They have everybody that applies 

start picking apples, and they pick on trellis trees, which are the 

easiest. They do not have to climb a 20-foot ladder. And by week 

two, in one orchard, Sunrise Orchards in Cornwall, Vermont, they 

hired eight pickers, U.S., everybody that showed up. By week two, 

there was one left, and that one picker asked if he could work in 

the packing house. This orchard needs 55 seasonal workers to 

bring in their crop. 

So when I say Americans will not do the job, it is true. They are 

not doing the job. 

Senator SESSIONS. Well, there are factors that all go into that. 

Chairman LEAHY. Trust me, I know that orchard. I know exactly 

what Ms. Eastman is saying, and she stated it very, very accurately. 

Senator Cornyn, again, our hearts—— 

Senator SESSIONS. I would note that seasonal workers are more 

justified—— 

Chairman LEAHY. Senator Cornyn, again, I think I can speak for 

all Vermonters, our hearts go out to Texas for what you have gone 

through, and I appreciate the fact you could be here today, and I 

understand why—there was only one place you should have been 

on Friday, and that was Texas. So thank you, and you have extra 

time because of that. 

Senator CORNYN. Thank you, Mr. Chairman, and I know Senator 

Cruz, who joined me there, appreciates the comments about people’s concerns, condolences, grieving with people who lost their life 

in that terrible incident last week. 

I want to use the time you have given me, Mr. Chairman, the 

10 minutes—I will actually probably reserve some of that time for 

the second and fourth panels, with all due respect to the current 

panel. But I do have a brief opening statement. 

The bill introduced last week by the bipartisan group touches on 

nearly every aspect of our Nation’s immigration system. It is truly 

comprehensive in the sense that it covers a wide range of complex 

and often controversial aspects of our immigration law. The bill 

contains major changes to refugees and asylum law, guest worker 

programs, detention policy, worksite enforcement, and overall permanent immigration, both in terms of family- and employmentbased immigration. 

I fully expect there will be a healthy and I hope respectful debate 

about how we should address the 11 to 12 million people here in 

the United States who came into the country illegally or overstayed 

their visa in violation of the law, which comprises about 40 percent 

of illegal immigration, the visa overstays. 
23 

That is a conversation we cannot avoid and we must not avoid, 

because it impacts our national security, public safety, and the 

health of our national and local economies. 

While engaging in that conversation, we must give short shrift 

to the scores of other critical immigration reforms contained in the 

bill, including the areas I just mentioned. Those who have read the 

bill know that the legalization program for 11 to 12 million people 

takes up less than 100 pages of the 844-page bill. 

What is in the other 750 pages? Well, that is important, because 

it turns out quite a lot. And much of it is at least as important to 

our national interest as any solution for the 11 to 12 million here. 

Mr. Chairman, we have had this bill less than a week, of course, 

as we all know, and we are still analyzing the scores of major reforms it contains. But I want to say this to my friends who are part 

of the Gang of Eight. This legislation makes a number of positive 

improvements to our immigration system. There are things to commend, both in terms of major upgrades to employment-based legal 

immigration and worksite enforcement. There are reforms in this 

bill that have the potential to boost innovation and job growth 

within the United States. And there are reforms that will bolster 

foreign tourism spending and incentivize foreign investors and entrepreneurs to invest in U.S. companies and workers. 

I appreciate the attention given in the bill to expanding resources for improving assimilation and the integration of immigrants in our society, especially in terms of promoting English language and civics education. 

But there are a number of areas that this bill need substantial 

improvement in. For example, while well intentioned, I regret that 

the border security element falls well short of the sponsors’ aspiration to protect the borders and maintain U.S. sovereignty. In fact, 

without major changes, the bill could do more harm than good. 

The bill sets what would superficially appear to be a worthy target of a 90-percent apprehension rate along the southwestern border. But based on our preliminary review, this 90-percent goal only 

applies to three of the nine southern border sectors and only two 

out of the five sectors in Texas. And so as I read it, the border security provisions in this bill will necessarily mean that the Border 

Patrol will shift resources away in a pre-announced fashion from 

most of the border sectors in order to reach the goals for only a few. 

We can only imagine what the transnational criminal organizations 

that move drugs, people, and contraband across our border will do 

in response. 

Border security matters in Texas and along the southwestern 

border, and the bill does not adequately provide for it. And I hope 

my colleagues will work with me to help get it right. I think we 

can do it. 

As I said, the bill is comprehensive, but it is not exhaustive. In 

other words, some important reforms were omitted that I think 

need to be included. 

For example, the bill fails to address the critical needs for improvements at our land-based ports of entry, especially along the 

southwestern border. The vitality of these land ports of entry is 

critical both in terms of security but also for the economic pros-
24 

perity that legitimate trade and travel bring to our border communities and 6 million jobs in the United States. 

We must use this opportunity to provide meaningful infrastructure investment to the ports of entry in order to reduce wait times 

for legitimate trade and travel. 

I am also concerned that the bill does not do enough to deal with 

the biometric exit requirement in current law. This is perhaps one 

of the most concerning areas of the bill because, since 1996, there 

has been a requirement mandated by Congress for an entry-exit 

system. Unfortunately, while the entry system works well, the exit 

system is nonfunctional. I want to learn more about the rationale 

of why the Department of Homeland Security has been unable to 

comply with this longstanding mandate of the Congress and why 

the Department continues to drag its feet in implementing the law 

already on the books which requires a biometric exit. 

If we want to get serious about preventing another wave of visa 

overstays, then we have to get this exit system right. I remain concerned about the message that this sends by allowing individuals 

with multiple serious criminal convictions to be eligible for legalization. It should not be a controversial proposition to oppose legalization for someone who, on top of their illegal entry or overstay, was 

convicted of two misdemeanor drunk driving offenses or two misdemeanor domestic violence offenses or two misdemeanor child 

abuse offenses. 

It is an affront to the rule of law, I believe, to give the Secretary 

of the Department of Homeland Security the discretion to waive 

the bar and to allow an illegal immigrant who has committed three 

or more types of these offenses a pathway to citizenship. So I look 

forward to working with my colleagues on both sides of the aisle 

to fix that. 

I also worry that the bill’s implementation will be frustrated by 

thousands of lawsuits unless we tighten up the administrative and 

judicial review portions of the bill. And, finally, the bill falls well 

short of providing certain employers, particularly in the construction industry, with access to the labor force they need to run and 

grow their businesses. 

So, Mr. Chairman, I look forward to a spirited and respectful discussion of these issues. The challenge before us is to make sure we 

get all of this right. And I would reserve the remaining 2 minutes 

and 26 seconds I have. 

Chairman LEAHY. Thank you. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you to the witnesses. As a State that has a lot of agricultural workers, I am really impressed by all the work that you have 

done and the fact that the Farmers Union, the Farm Bureau, Mr. 

Rodriguez, your amazing work, that all of these organizations are 

supporting this bill. It is truly a tribute to your ability to compromise and see the bigger picture. 

And I thought I would start with you, Mr. Rodriguez. I have been 

so impressed by your work, and you can imagine that some people 

still get concerned about what this could mean for American jobs 

with the guest worker agreement. And as someone with immense 

credibility in the labor movement and others fighting hard to pro-
25 

tect American workers, can you summarize why you think this bill 

is a good thing for American ag workers? 

Mr. RODRIGUEZ. Well, first of all, Senator Klobuchar, the workers 

that are currently here right now in the United States are going 

to have an ample opportunity to gain legal status through the blue 

card program and earn legal permanent residency. 

Secondly, there is clear language in the bill that calls for no discrimination against U.S. workers in favor of guest workers, and we 

had lots of discussions with the employers in regards to that. Employers agreed they want to keep experienced farm workers that 

have the ability and have the skills to pick their crops. As Ms. 

Eastman mentioned earlier, it does not help the cows to be changing the workforce and have rotating numbers of workers. So we 

want to do everything we possibly can to maintain that stability 

here within the ag industry as much as we can. 

And so legalization was our number one issue to try to deal with 

so that we keep the workers that are here right now, keep those 

professional workers, those skilled workers in the agricultural industry; and, secondly, to put provisions in the bill that there would 

not be discrimination against U.S. workers as the new visa programs are implemented. 

Senator KLOBUCHAR. Thank you very much. 

I have been hearing from ag producers for years about the problems with the H–2A program, and I am happy that we are going 

to find a way with this improved program to make this work better. And sometimes an alphabet soup of immigration programs and 

the endless rules involved in each can get pretty confusing. 

Can one of you explain what you see as the biggest problems 

with the H–2A program as it is and whether you think the bill addresses these problems? Mr. Conner. 

Mr. CONNER. I know your time is short, Senator, so I will just 

tick off a few here. 

Certainly the wage rates that are part of the H–2A program. For 

your constituency, obviously the fact that it is strictly a seasonal 

program that provides no value for year-round workers, so it is of 

no use to the dairy industry at all. 

And then, secondly, I would just say the administrative bureaucracy of the program. Small producers, you know, do not have the 

ability to hire consultants to navigate their way through an H–2A 

application process. 

Senator KLOBUCHAR. That is for sure. 

Can someone explain why you think it is important to have the 

Ag Department oversee the guest worker program instead of the 

Labor Department? 

Mr. CONNER. I will try that as well. Let me just say I think there 

are a couple different ways to answer that. Certainly there is a 

structure already in place for not only State level USDA offices, but 

we all know that there is a virtual USDA presence in every county 

in America, certainly every major agricultural county. These are offices that producers out there deal with quite often. They are quite 

familiar with them. There are people in those offices who are used 

to not only helping the producers but helping them navigate 

through other processes. We believe that producers will be quick to 
26 

use that local system that is well established out there in America 

today. 

Senator KLOBUCHAR. Thank you. 

Ms. Eastman, I thought one of the most important parts of your 

testimony is when you talked about the indirect benefits really of 

the guest workers, the fact that when they are here and we have 

some kind of status that works, that they are going to buy things 

in America. And sometimes they use them here, sometimes they 

ship them back, whether it is motorcycles, washing machines, you 

name it. You also mentioned the positive impact for rural areas 

with stores. 

Could you talk more about these indirect impacts that you have 

seen in your community? 

Ms. EASTMAN. Yes. Thank you, Senator. One of the best times 

that I have is at the end of harvest. We have a baggage truck that 

has its set route, and it is run by Florida East Coast Travel Service, and it is great because when I get the listing of where it is 

going to go, the workers actually know before I do. It is like an underground tunnel. They cannot wait. They get their bins together, 

whether they go to Costco, Walmart, they buy motorcycles, weed 

whackers, washing machines, and all of this is shipped back because they tell us that it is cheaper for them to buy it here and 

ship it home. I have witnessed them pay $200 for a canoe and it 

costs them $200 to get it home. 

So the point to be made is a lot of the money that they make 

here in the United States is spent locally here as well. 

Senator KLOBUCHAR. Thank you very much, all three of you. 

Chairman LEAHY. Thank you very much. 

I have consulted with the Ranking Member, and I am told Senator Lee is next. Senator Lee of Utah, please go ahead. 

Senator LEE. Thank you, Mr. Chairman, and thanks to each of 

our witnesses for joining us today. I have got a brief statement, 

and then I have got a couple of questions. 

I recognize that the labor problems facing our agricultural industry are different in kind from those in other industries and are 

critically important to our Nation’s economy. The nature of agricultural work can, of course, deter even the hardest working of Americans. The long sporadic hours, a distant and secluded worksite, the 

nominal wages that result from low margins for food products and 

the back-breaking physical labor itself all contribute to a relative 

lack of interest in and participation in these jobs by American-born 

workers. 

Creating a sustainable guest worker visa is essential for keeping 

our Nation’s farms and ranches fully staffed. That is why I introduced the DASH Act, a bill that would expand access to the H–2A 

program for additional categories of workers and employers. Addressing problems for agricultural workers and employers must be 

part of any visa reform, so I am glad that we are having this discussion this morning. 

I was wondering if I could start with Ms. Eastman, if you could 

tell us a little bit why—sort of restate for us why you think that 

the H–2A program is insufficient, particularly as it relates to some 

of these industries like dairy farming and sheepherding. 

Ms. EASTMAN. I cannot speak to sheepherding—— 
27 

Chairman LEAHY. Is your microphone on? 

Senator LEE. Microphone. 

Ms. EASTMAN. Excuse me. I cannot speak to sheepherding because I have not had direct access with sheep. 

As far as the dairy farming goes, it is impossible. We have two 

dairy farms that do have H–2A workers, but they are here to repair fence and work in quarries that are going to be used as pasture. So it is not related to milking cows, which is simply an everyday function at these farms. So in part it is not available to those 

folks. 

Senator LEE. Explain to us why it is not. 

Ms. EASTMAN. It is because right now H–2A is limited to a 10- 

month seasonal, so if you are an employer—and that is limited to 

the employer. The H–2A employee can stay here longer than that, 

but they have to transfer. So one individual employer can only 

have H–2A workers on site for 10 months out of the year. 

Senator LEE. Which does not work for some of these areas. 

Ms. EASTMAN. That is right, and it is not based on a fiscal year, 

like you take apples when they come in. You know, it is August 

and they will stay to pick, prune, pack. They have to be gone by 

the end of May. So it is not limited to a fiscal year. 

Senator LEE. And this bill, in your opinion, addresses that problem? 

Ms. EASTMAN. Yes. 

Senator LEE. Tell us how it fixes the problem. 

Ms. EASTMAN. Well, it fixes the problem because—I think actually Mr. Conner can speak to that better with the different types 

of visa applications. 

Senator LEE. Mr. Conner. 

Mr. CONNER. Well, it fixes the problem fundamentally by creating two different groups of the guest worker program. One would 

be the seasonal at-will program. But the other is a contract program, again, where you would have the ability to bring in workers 

on a contract. As you noted, to perform those milking functions, the 

feeding functions on the farm, those kind of things where you—you 

know, as was noted earlier, the cows do not stop producing milk. 

They produce 24/7 every day of the year. 

Senator LEE. That is the nice thing about cows. They are considerate in that regard to produce year-round. 

[Laughter.] 

Senator LEE. So looking long term, do you think this solves it for 

the long term? Do you see this as a long-term fix or something that 

we would have to tinker with every few years? 

Mr. CONNER. There is no question, Senator Lee, that we picture 

this as a long-term fix. This was fundamental to our coalition’s efforts. We were not looking to come back and do this in a few years 

because we know that that is, you know, not going to happen. This 

has been a problem that has been developing really since the mid1980s, and, you know, we believe that the combination of the blue 

card program for our trained existing workforce and the viable 

guest worker program, both at-will and contract, administered by 

USDA, provides that long-term access to the workforce, legal workforce that we are going to need to continue to produce the crops 

and the food for America. 
28 

Senator LEE. Can you tell me how the caps work, the caps on the 

number of these visas that will be available? 

Mr. CONNER. Yes. There is a cap on these visa workers. In year 

one, that cap would be set at 112,333. As you can note by some of 

those numbers, this was a product of a lot of negotiation and compromise on both sides in terms of the setting of those caps. Another 

112,000 would be then year two and year three so that by year 

three the cap would be 337,000 workers. From years five onward, 

there would be no cap, but the Secretary of Agriculture would be 

empowered then to set a cap based upon need for the number of 

guest workers that we would have in the country. 

Senator LEE. Okay. And that is part and parcel of why you see 

this as a long-term fix, is because you are then allowing us to respond to changing economic circumstances through the Department 

of Agriculture. 

Mr. CONNER. Absolutely. 

Senator LEE. Okay. I see my time has expired. Thank you very 

much. 

Thank you, Chairman. 

Chairman LEAHY. Thank you very much, Senator LEE. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

I just want to take a moment to respond to those who say that 

immigration is such a complex problem that we cannot address it 

with a comprehensive approach. I believe that the complexity of 

this problem and the connectedness of the issues involved in immigration speaks to the need for comprehensive reform. 

Take, for example, border security. I know that border security 

is critical, and that is why I am very happy to see that the strong 

provisions in this bill are in it. But if all you did was secure the 

border with 10-foot walls, if there is still a market for undocumented labor, you would create this huge market for 11-foot ladders. And so you need to verify—you need to be able to verify workers. 

So, Mr. Conner and Mr. Rodriguez, first of all, I want to congratulate you two on working with each other. I think it was a 

great thing. Mr. Conner, one of the important aspects of the bill is 

the delayed phase-in of the employment verification requirements. 

Agricultural employers are not required to participate in the E– 

Verify program until 4 years after regulations are issued, which 

will be about 5 years after the passage of the bill. This is going to 

be very important for farmers in Minnesota. Lots of our farmers 

run pretty small operations. It is going to take time for these programs to get up and running. 

Can you, Mr. Conner, identify why this delayed implementation 

of E–Verify is important for agriculture? 

Mr. CONNER. That is a great question, Senator Franken. Let me 

just say I think the important aspects go to the heart of the program, and that is, we really are creating in many ways, you know, 

two brand-new programs here. You have the blue card program, 

and then you have the contract part of the guest worker program, 

and then the at-will part of the guest worker program. We know 

that this is going to be administratively difficult. We know there 

will be bumps and bruises along the way on the implementation. 
29 

This ensures, again, that for agricultural production, which is so 

important in terms of timeliness, seasonality, that, you know, there 

is going to be a maximum amount of time here before the E–Verify 

system is kicking in and fully operational, so that we can make 

sure that these three new apparatuses are working, that, you 

know, the caps are being set in an adequate amount to provide the 

workers that we need. You know, it just gives time, because, you 

know, remember, Senator Franken—and you know this—these are 

very, very small businesses out there on our American farms and 

ranches almost by any standard, and, you know, more than anything else, we want to make sure that these small producers know 

the program, know what it takes to get the legal workforce here 

before we get to enforcing this thing out on every single farm and 

ranch in America today. I think that is only fair. 

Senator FRANKEN. And especially for these small operations. We 

need to make sure that the E–Verify program has an higher accuracy rate than it has now. And I am worried that as we introduce 

millions of immigrants into the system, the error rates tend to get 

higher when you do that. And when you run a dairy operation or 

other small businesses, for that matter, you do not have a huge HR 

department like you might at other businesses. 

And so I think this is just very important that we understand 

how this all fits together and that we do it with our eyes wide 

open. But to me, it is absolutely essential that we do it at one time 

because everything is so interrelated. 

I am very pleased with what this is going to do again for our 

dairy industry. Half of all dairy cows in America are milked by immigrant labor. And I have called for this to be fixed for years. I am 

glad that Senator Feinstein and Senator Leahy have made their efforts to do that. 

In your mind, Mr. Conner, in addition to dairy, what are—and, 

by the way, the Chairman said something about you say to cows, 

‘‘We are only going to milk you seasonally,’’ they do not like it. 

They do not know what you are saying. 

[Laughter.] 

Chairman LEAHY. They do in Vermont. Maybe not in Minnesota. 

[Laughter.] 

Senator FRANKEN. Well, okay. I know the Chairman is a 

Deadhead, so no comment on where he got—sorry, Senator. 

[Laughter.] 

Chairman LEAHY. Has the Senator finished his questions? 

Senator FRANKEN. No. I have no idea where I was—yes, I wanted 

to—just what are the—aside from dairy, what are the one or two 

most helpful aspects of this agreement? 

Mr. CONNER. Well, again, Senator, you know, we have a problem 

in American agriculture today, and it is reflected in the fact that, 

you know, so much of our workforce is currently undocumented. 

You know, for anything else that we have, recognize that the problem exists today. So the status quo is intolerable. Across all of the 

agricultural sector, the notion that you are going to give us the 

ability to actually have a legalized workforce that we know is legal 

and can verify that—you know, farmers and ranchers are the most 

law-abiding people on this planet. They want to have access to 

those workers. They want them to be legal. And more than any-
30 

thing else, I think fundamentally this bill gives us that ability to 

be legal. And, you know, that is huge because the status quo, 

again, is—you know, what are the alternatives? I challenge those 

to suggest that. The current system is broken. We have got to 

change it. 

Senator FRANKEN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Flake. 

Senator FLAKE. I thank the Chairman and thank the witnesses. 

I just want to thank all of you and Senator Feinstein for working 

so hard to get an agreement here. We were kept informed, those 

of us working on the broader agreement, of the progress that was 

made and the hurdles that you had to overcome, and it is not an 

easy task, I think we all know, and so congratulations for working 

together on this and getting this done. 

As I mentioned when we launched the broader bill last week, I 

grew up on a farm, working alongside migrant labor, and I know 

the motivations that they have. I know how difficult it is. And I 

know that they were here to make a better life for themselves and 

for their families. And for the life of me, I have never been able 

to place all those who come here across the border undocumented 

in some criminal class. It just has never rung true to me that way. 

And so I want a solution here. Farm work is tough work. I made 

it off the farm with almost all of my digits, just lost the end of one 

in an alfalfa field. But I can tell you, I am here largely in politics 

because I got tired of milking cows. It is a tough job. You cannot 

tell them, you know, ‘‘We are not going to milk you today.’’ It just 

does not work. I have tried. I have tried. It does not work. 

But I appreciate what you have done here, and, Mr. Conner, I 

appreciated working with you when you were at the USDA on 

other issues, and I appreciate the work that you have done. 

Let me just say, in your experience, I know that you have been 

working on a solution just for ag for years now. Why is that so difficult? And why is it important to have this as part of the broader 

bill? Why is it easier as part of a comprehensive package or at least 

possible? I know that you have been working on this. Why has it 

not been possible to achieve on its own? 

Mr. CONNER. Well, Senator, you are absolutely correct in that agriculture has—you know, this is not a realization that has come 

about just in the last few months. We have known we have had a 

problem for a very, very long time, and, you know, we have worked 

with Senator Feinstein on solving just agriculture’s problems for a 

very, very long time as well. And I would just say that history suggests that, you know, that did not work, that, you know, the agricultural problem in and of itself probably was not going to produce 

successful legislation. 

So, you know, being a part of this comprehensive effort, again, 

our negotiations have been very, very limited to just the agricultural piece, but we appreciate the fact that, you know, as part of 

the broader package there seems to be some momentum to get 

something done this year because we have been talking and proposing solutions and in some cases even producing legislation for 

a very, very long time because this has been a problem for a long 

time. We believe 2013 reflects, you know, what I have described to 
31 

many as the best chance in a generation to stop talking about it 

and finally fix it. 

Senator FLAKE. Can you just go on with that? If we fail to reach 

an agreement here and there is no agreement just with the subset 

of agriculture, what would the consequence be? How much of our 

industry do we stand to lose if we cannot reach agreement here? 

Mr. CONNER. Well, the consequences are substantial, Senator. 

Some of those I put in my opening statement, but, you know, 

again, the status quo means that a large, large percentage of the 

American workforce—doing nothing means a large percentage of 

the American workforce is going to continue to be undocumented 

workers in this country, people that are not here legally. Again, 

this is untenable to the American producer out there, that somehow we cannot give him or her a legal workforce. So that is first. 

Secondly, we do have labor shortages in this country, and it is 

resulting in crops going unharvested. It is resulting in agricultural 

production—and I cited the case of the California study of tens of 

thousands of acres moving to another country. That pattern will 

continue if we do not fix this problem. 

Senator FLAKE. Just in the remaining seconds I have, some will 

argue that if we do not have a foreign labor force, then that simply 

means more jobs for Americans. But how does the lack of a program like this affect U.S. jobs or American worker jobs? 

Mr. CONNER. Well, several have raised this point, and perhaps 

Arturo has a comment, too. I know time is running out, but I will 

just say this issue has been studied and looked at exhaustively. 

Senator Feinstein has been personally involved in a number of efforts out there to really sort of demonstrate, you know, are we replacing U.S. jobs here? Are there people out there that would really 

do this but we are just not paying enough or something is wrong 

and, therefore, we are turning to these foreign workers? It has been 

proven time and time again, study after study, several cited in my 

written testimony, that is not the case. They will not do this work. 

And without this workforce, again, food production will go overseas 

and crops will be left unharvested in the U.S., period. 

Senator FLAKE. All right. Thank you. 

Chairman LEAHY. Thank you. 

Next is Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. 

I will note at the outset that I regret I was not able to be here 

at the hearing on Friday. I joined my colleague Senator Cornyn 

down in West, Texas, visiting with the victims of that horrific accident, and I want to thank my colleagues and the millions of Americans who have lifted up the citizens of West who have been suffering through that tragedy. Both West, Texas, and obviously Boston have both in the past week had horrific tragedies, and all of 

us are lifting up those who lost their lives, their families, and loved 

ones, and the many who are injured and suffering. And so I am 

grateful for the great many prayers for the citizens of West in their 

suffering. 

I want to thank each of the three of you for being here today, 

for your very able testimony, and for your hard work and commitment to immigration reform. And, indeed, I would like to thank all 

of the Members of the so-called Gang of Eight, who I think have 
32 

worked very, very hard on this very difficult issue to try to reach 

a solution to a very difficult problem. And so I comment the efforts 

of the four Democrats, the four Republicans, who have worked very 

hard on this. 

I think there is enormous agreement in this country that our immigration system right now is broken. I think that is bipartisan 

agreement. I think it is across the country. I think there are huge 

challenges. I think those challenges are particularly acute in the 

agricultural area. And I will note for me this is an issue that is not 

simply abstract. I am proud to be the son of an immigrant who 

came from Cuba with nothing, and to be the grandson of an agricultural worker. My grandfather worked in the sugar canes on a 

plantation in Cuba in very difficult circumstances. And, indeed, I 

would note—and, in fact, I would like to commend the senior Senator from California for this very substantive report that she has 

put together. I think it is very well done, and I think it very effectively tells the story of how the current system is not working. Indeed, I made a point of reading the section on Texas, and I will 

note that what is contained there very much comports with what 

I have heard from farmers and ranchers throughout the State of 

Texas. Agriculture is critical to my State, as it is to her State, and 

I suspect to the States of every Member of this Committee. 

I think all of us would like to see a bill that fixes the broken immigration system. And I would suggest, in my view, the strategy 

that will be effective to pass a bill is to focus where there is wide 

bipartisan agreement. That is how we will actually get a bill 

passed. And in my judgment, there are two broad areas where 

there is bipartisan agreement right now. 

Number one, I think there is bipartisan agreement that we have 

got to get serious about securing the border, that we need to increase manpower, that we need to increase technology, that we 

need to fix the problem. In a post-9/11 world, I think it does not 

make sense right now that we do not know the criminal history, 

we do not know the background of those coming in. And I think 

there is wide agreement we should fix that, including the problem 

of visa overstays, which is a significant component of illegal immigration today. 

I think there is likewise wide bipartisan agreement that we need 

to improve legal immigration, that we need to streamline it, that 

we need to reduce the bureaucracy, reduce the red tape, reduce the 

waiting periods. 

One of the things that all three of the witnesses have talked 

about today are the difficulties of the existing H–2A system and 

having that system work, and one of the reasons we see illegal immigration at the levels we do is because our legal immigration system is not working effectively. And I think we should all be champions of legal immigrants, making the system work, and not just 

welcoming but celebrating legal immigrants. 

I think if we are going to see an immigration reform bill pass, 

that should be the focus of the bill. I think if instead the bill includes elements that are deeply divisive—and I would note that I 

do not think there is any issue in this entire debate that is more 

divisive than a path to citizenship for those who are here illegally. 
33 

In my view, any bill that insists upon that jeopardizes the likelihood of passing any immigration reform bill. 

So it is my hope that passing a bipartisan bill addressing areas 

of common agreement, securing the border, improving legal immigration, improving agricultural workers to ensure that we have 

workers who are here out of the shadows, able to work legally, I 

hope that that reform legislation will not be held hostage to an 

issue that is deeply, deeply divisive, namely, a pathway to citizenship. In my view, that is how we get something done. We focus on 

areas of agreement, not on areas of disagreement. And I am hopeful that over the course of consideration we will see some consensus come together to do exactly that. 

Thank you. 

Chairman LEAHY. Thank you, Senator CRUZ. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. I will pick up 

where my friend from Texas left off about consensus. 

I may be wrong, but after having dealt with this since 2005, I 

think we are beginning to reach consensus as a Nation. The first 

consensus we have reached is the current system is not working. 

If you are worried about amnesty, that is exactly what we have. 

We have 11 million people roaming around the country with really 

no way to find out who they are under the current construct. 

Senator Cruz is right. If you are trying to access legal labor, it 

is incredibly hard to do. The visas run out. It is just too complicated. So I think most Americans believe the status quo will not 

work. They want their borders secured. There is consensus. There 

are very few people in this country who think that border security 

is not a good thing. And visa control, 40 percent of the people here 

illegally did not come across the border. They overstayed their 

visas. All the hijackers on 9/11 were visa overstays. And if Boston 

tells us anything, we need to be aware of who is living among us, 

whether native born or come in on a visa and become a citizen. We 

can be threatened by our own people. 

So there is a consensus about border security, there is a consensus the status quo should be replaced. I think there is a consensus about what Senator Cruz said, a guest worker program, 

with this caveat—this is where Senator Sessions and I kind of join 

forces. I do not want a foreign worker to come into the country and 

take a job from a willing American worker. The only time I want 

you to be able to hire somebody, Mr. Rodriguez, is when an American worker will not do the job after you advertise at a competitive 

wage. And until you get this system kind of under control, we really do not know. Is it because—why are there almost no native-born 

workers in agriculture? Is it because the work is too hard and we 

have moved on as a people? Or because the wages are too low and 

most of them are illegal immigrants? We will not know until we 

get order out of chaos. 

I think the other thing that people have come to grips with—and 

this is where Senator Cruz and I disagree—is that the 11 million 

are not going to go away. And most people are okay with a pathway to citizenship, 70 percent, if it is earned, if you do not cut in 

line of those who have been patiently waiting, if as a condition of 

staying here you have to go through a criminal background check, 
34 

you have to pay a fine, if as a condition of staying here to become 

a citizen you have to learn the language and hold a job. And we 

are talking about a 10-year minimum before you can even apply for 

a green card, and the conditions on the pathway to citizenship are 

that you have to learn our language, you have to pay a fine for the 

crime you committed, you have to go through a criminal background check, and you have to keep a job. 

I think most Americans would say that is a practical solution, 

and most Americans, like me, do not want to deal with this 20 

years from now. And my goal is to end this debate and get it right. 

We did not get it right in 1986. 

When it comes to the agriculture community, Mr. Conner, do you 

believe that most people working in agriculture are non-citizens or 

illegal immigrants? 

Mr. CONNER. Senator Graham, I believe the statistics do verify 

that, you know, the numbers are somewhere between 60 to 70 percent of our agricultural workforce are undocumented—— 

Senator GRAHAM. Why is that? Mr. Rodriguez, do you agree with 

that? 

Mr. RODRIGUEZ. Yes, sir. That is what I understand. 

Senator GRAHAM. Why is that? 

Mr. RODRIGUEZ. Well, I think you pointed out some of the reasons, sir. You said that, you know, the current systems that are in 

place affect not—— 

Senator GRAHAM. Willing employers cannot get enough legal 

labor because there are limits on the visas and it is complicated 

and expensive. Do you all agree with that? 

Mr. CONNER. Yes. 

Mr. RODRIGUEZ. Yes. We have made changes as a result of that, 

and the fact that these are dangerous, seasonal, low-paying jobs. 

Senator GRAHAM. Everybody said yes, okay. 

Do you also agree it appears that meat packing, poultry, agriculture, some of these more labor-intensive jobs, that it is hard to 

find labor here in our country? Do you agree with that? 

Mr. CONNER. Well, Senator, let me just respond. I am not here 

representing the meat packing industry, but the six categories, if 

you will, of agricultural workers out there— and there is no question that I wholeheartedly agree with that statement, that you cannot get Americans to do this work. 

Senator GRAHAM. Well, and here is the question. If you paid 

them $40 an hour, you probably could, but nobody would be left in 

American agriculture. They would go to Mexico. So we have got to 

find a way, in my view, to replace our agricultural workforce that 

is 60 to 70 percent illegal and everybody should be legal. There is 

no benefit to our economy by having a bunch of illegal workers in 

any part of the economy dominate that part of our economy. 

So what I think we have done with this bill is we have tried to 

strike a balance, and Senator Rubio and Senator Feinstein in my 

view have done a good job to replace the illegal workforce with a 

legal workforce. 

And one last thought, Mr. Chairman, just indulge me for a second. The pathway to citizenship has three triggers: there has to be 

a border security strategy created by Homeland Security before the 

pathway to citizenship can be fully implemented; you have to have 
35 

E–Verify up and running; and you have to have entry and exit control visas before people can transition from a temporary legal status to get a green card. I think those three triggers make sense. 

If this Committee can make those triggers more effective, if Senator Cornyn can help us on the exit visa system, count me in. If 

we can find ways to secure the border better, Senator Cruz, count 

me in. 

At the end of the day, I want to make sure that we do not have 

a third wave, and getting the agricultural part right, since 60 to 

70 percent of the workers in agriculture are illegal, seems to be a 

good place to start. 

So I would like to compliment the authors of this part of the bill 

and say you have done a good job and let us make it better if we 

can. 

Chairman LEAHY. Thank you. 

I want to thank this—— 

Senator GRASSLEY. May I have 15 seconds? 

Chairman LEAHY. Go ahead. 

Senator GRASSLEY. I have been where the Chairman has been as 

Chairman of the Committee, and we have to move on. But I do 

want the record to show that we were hoping to have a second 

round, and so we will submit our questions for answer in writing. 

Chairman LEAHY. I appreciate that, because I am looking at the 

number of witnesses we have today. It is going to take some time. 

Of course, we will have another panel tomorrow with the head of 

Homeland Security. 

[The questions appear as submissions for the record.] 

Chairman LEAHY. I want to thank Mr. Rodriguez, Mr. Conner, 

and Ms. Eastman for being here. Each one of you have been very, 

very helpful in putting this together. And I wanted to thank Senator Feinstein, Senator Hatch, and others who have worked so 

hard on the agriculture part of this. So thank you all very, very 

much. 

Mr. RODRIGUEZ. Can we make any final points? 

Chairman LEAHY. If you would like to make a brief final point, 

each of you, go ahead. 

Mr. RODRIGUEZ. It will be very brief. Again, we just want to 

thank the Committee for all their hard work, and we want to certainly thank once again Senator Feinstein for her diligence in all 

this. But just one closing thought. 

I think what we tried to do here in working together over the 

past few months and years is to really do something that would 

both honor farm workers in this country and the work that they 

do do. And, secondly, that we do have an industry, an agricultural 

industry, that will maintain its viability. I think all of us in America want to see products produced here when it comes to our fruits 

and vegetables. 

Chairman LEAHY. Having had the honor of serving as Chair and 

also as Ranking Member of the Senate Agriculture Committee, I 

want the most powerful Nation on Earth that we can supply our 

own food and our own agriculture, and I want a vibrant, from east 

to west, north to south, agricultural community. So thank you all 

very, very much for being here. 
36 

Chairman LEAHY. While we are changing, would Megan Smith, 

Jim Kolbe, Tamar Jacoby, Rick Judson, Brad Smith, Ron Hira, 

Neeraj Gupta, and Fred Benjamin please come forward? We will 

set up the table. 

[Pause.] 

Chairman LEAHY. I thank all the witnesses for being here. Just 

so everybody will understand, we are going to go straight through 

the noon hour because of the numbers we have. Some Senators will 

be going in and out for lunch and other meetings that are taking 

place. 

We will begin with Megan Smith, who is the commissioner of the 

Vermont Department of Tourism and Marketing. She was appointed by Governor Shumlin in 2011. Before that, of course, she 

was—well, we know, anyway, that she was in the Vermont Legislature, and before she became commissioner, she and her husband 

owned and operated the Vermont Inn in Mendon, which is a very 

nice place—nice town, nice inn—for over a dozen years. 

Ms. Smith, please go ahead. 

STATEMENT OF MEGAN M. SMITH, COMMISSIONER, VERMONT 

DEPARTMENT OF TOURISM AND MARKETING, MONTPELIER, 

VERMONT 

Ms. SMITH. Chairman Leahy, Ranking Member Grassley, and 

Members of the Committee, I am pleased to be here today on behalf of the Vermont Department of Tourism and Marketing and the 

broader travel community to highlight the importance of travel-related provisions included in immigration reform. 

Vermont is very dependent on tourism. Our percentage of jobs in 

the industry is twice the national average, at 38 percent. The majority of our businesses are small and family-owned, and 

agritourism is growing at a very high rate. We are starting to see 

a steady increase of international visitors, and it is a market that 

we are focusing on much more with the support of Brand USA. 

While we benefit from being a weekend destination for millions of 

travelers, in order for small businesses to flourish, we need to attract more international travelers who stay longer—an average of 

14 days—and spend more money. 

Our Nation does not remain competitive in the global travel marketplace. From 2001 through 2010, our market share of the world 

traveler fell from 17 to 12 percent. This resulted in more than 78 

million international travelers going somewhere else and the U.S. 

losing 467,000 jobs and $606 billion in revenue over those years. 

Understanding the economic importance of growing international 

visitation, let me highlight some important provisions in the immigration bill that will address some of the most pressing barriers 

facing inbound business and leisure travelers in the U.S. 

We fully support all the provisions in the JOLT Act that were 

included in the proposed legislation. In particular, we strongly support expansion of the Visa Waiver Program, which is critical to 

both our national security and our economic health. According to 

Commerce Department data, VWP visitors spent nearly $67 billion 

and supported 525,000 American jobs in 2011. 

Easing unnecessary restrictions on visitation from Canada will 

only enhance the already strong diplomatic and economic ties be-
37 

tween the two countries. Vermont has a distinct and important relationship with our Canadian neighbors. This relationship is especially strong in the northern region where thousands of Canadians 

own second homes. As these homeowners reach retirement, they 

are interested in spending more time in the U.S., so we strongly 

support increasing their time to remain in the U.S. to 240 days. 

Vermont has also been a pioneer of the EB–5 program through 

the unparalleled efforts of Jay Peak Resort’s Bill Stenger, making 

our State the first in the country to successfully utilize this program for resort development and expansion. Jay Peak is a perfect 

example of this program’s benefits for the economy and the local 

community, where jobs are scarce in that part of Vermont and conventional lending is not an option. We appreciate the inclusion of 

a permanent authorization of this important program. 

We also very much appreciate inclusion of the reforms to the H– 

2B visa program which is highly important to employers in seasonal tourism industries—most importantly the States with lower 

populations and dense visitor seasons. Ski resorts in the winter 

and beach communities in the summers rely on these workers who 

not only prove to be excellent employees but bring a cultural experience to States that do not necessarily enjoy a great deal of diversity. When a trained employee can return for several years in a 

row, it is a great benefit to all. We thank you for including Sections 

4601 and 4602 in the bill. 

In order to enhance security while also facilitating legitimate 

travel and trade, we strongly support the addition of the 3,500 Custom and Border Patrol officers included in this legislation. In order 

to ensure the officers are allocated appropriately, we urge the Committee to work with the CBP to identify and specify the number of 

officers needed at air, land, and sea ports of entry. 

Lastly, I would like to highlight one of our areas of concern. The 

proposal in Section 6 of the immigration bill to gut the funding for 

Brand USA by 75 percent will stifle the organization’s global impact and hurt States like Vermont that depend on Brand USA to 

reach new markets. The 2010 passage of the bipartisan Travel Promotion act was supported by an overwhelming majority of the U.S. 

Senate, including Senators on this Committee. I represent the 

small rural States on the Brand USA Marketing Committee. This 

organization has allowed those of us that are not gateway States 

to finally have a voice in the international travel market. Since 

Brand USA and Vermont have partnered together, it has allowed 

Vermont to enter the markets of Great Britain and Japan, using 

Boston, New York, and Montreal as gateways. Partnering with Jet 

Blue, we have already seen an increase in visitation to Vermont 

through JFK, and I have been able to hire a PR firm in both of 

these markets to promote Vermont tourism. 

Cutting Brand USA’s funding by taking 75 percent of the TPA 

fees for border security will have an immediate negative impact on 

the travel community across the U.S. There are excess funds in the 

ESTA that are not being used by Brand USA. The immigration bill 

should focus solely on using those funds for new border security 

initiatives. 

In conclusion, if the U.S. recaptures its historic share of worldwide overseas travel by 2015 and maintains that share through 
38 

2020, it will add nearly $100 billion to the economy over the next 

decade and create nearly 700,000 more U.S. jobs. The positive travel provisions in this bill will help us achieve this goal. 

I very much appreciate the opportunity to testify today. 

[The prepared statement of Ms. Smith appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is former Congressman Jim Kolbe from Arizona’s 5th District, I believe. He served for 22 years. President 

Obama recently appointed Mr. Kolbe to the Advisory Committee for 

Trade Policy and Negotiations. He provides policy advice on trade 

matters, and he and I worked together on a number of significant 

matters during his years in the House, and we are glad to have you 

back here. 

Please go ahead. 

STATEMENT OF HON. JIM KOLBE, A FORMER REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. KOLBE. Thank you, Senator Leahy. Senator Leahy and Members of the Committee, thank you for inviting me to testify before 

you today on behalf of the Border Security, Economic Opportunity, 

and Immigration Modernization Act of 2013. 

I had the privilege of serving in the United States Congress from 

1985 until 2007, representing Arizona’s 5th and 8th Congressional 

Districts. Immigration is an issue that has always been in the forefront in this border district. 

I applaud the Senators in the so-called Gang of Eight, especially 

my colleague Senator Flake from Arizona, who spent many months 

preparing this legislation. The bill currently before the Committee 

is an excellent start that offers many positive provisions to help 

U.S. businesses, our immigrant population, and our country as a 

whole. Others on this panel will discuss various economic considerations, but I want to talk about one particular provision: completing family unification. 

I know, as the partner of a Panamanian immigrant, how especially difficult it can be to build a life and protect your family 

under our current, cumbersome system. While the bill you are considering is an excellent starting point, I submit to you that it is 

still incomplete. Families like mine are left behind as part of this 

proposal. Equally important, U.S. businesses and our economy suffer because of the omission of lesbian, gay, bisexual, and 

transgender families from the bill introduced last week. 

My partner and future husband, Hector Alfonso, was born in 

Panama and came to the Unites States on a Fulbright Scholarship 

to pursue graduate studies in special education. He has been a 

dedicated teacher for almost two decades. Hector was forced to return to Panama when his work visa expired. Our 12-month separation, like that of any American from their spouse, was painful. Hector returned to Panama while he applied for another visa. Eventually, we accomplished this, but it was a long process and it was expensive—far beyond the reach of most families. 

Just a month from now, Hector and I will legally marry here in 

the District of Columbia, surrounded by family and friends. We are 

immensely fortunate that Hector has now secured an investment 
39 

visa that allows him to remain here with me. Many other couples, 

however, are not so fortunate. Their ability to secure a solution 

that would allow them to build a home, family, or business together is elusive and difficult to realize. This Committee has an opportunity to fix this problem. 

The Uniting American Families Act, UAFA—legislation sponsored by Chairman Leahy and Senator Collins—would make a profound difference in the lives of many Americans and their families. 

By amending our immigration laws to treat lesbian and gay families as our Nation treats other immigrant families, UAFA would 

ensure American citizens are not torn apart from their loved ones 

or forced into exile abroad. 

The comprehensive immigration reform bill now under consideration by this Committee includes important provisions to make 

U.S. businesses more competitive. UAFA does the same, which is 

why it is supported by Fortune 500 companies like Intel, Marriott, 

Texas Instruments, and U.S. Airways. The failure to recognize lesbian and gay families in our immigration laws has a direct impact 

on American business. 

In a letter last month to the eight Senators who authored the 

Border Security, Economic Opportunity, and Immigration Modernization Act, a coalition of 28 of our country’s most prominent 

companies wrote: 

‘‘We have each worked to help American employees whose families are split apart because they cannot sponsor their committed, 

permanent partners for immigration benefits. We have lost productivity when those families are separated; we have borne the costs 

of transferring and retraining talented employees so they may live 

abroad with their loved ones; and we have missed opportunities to 

bring the best and the brightest to the United States when their 

sexual orientation means they cannot bring their family with 

them.’’ 

It is not just major corporations that lose out, Mr. Chairman. In 

Columbia, South Carolina, a restaurant owner with 25 employees 

recently made the difficult decision to close his business in order 

to move so he could be with his partner. In Los Angeles, a young 

entrepreneur who employed 30 U.S. workers shut his doors after 

his Canadian partner’s visa expired and they were forced into exile. 

These are stories that should give us all pause and cause us to reflect on the price to both American businesses and American families when we choose to leave some of our fellow citizens out of a 

reform to our immigration laws. 

It is time, Chairman Leahy and Members of this Committee, to 

fix this part of our immigration law. The opportunity is too rare 

and the positive impact too great to leave anyone behind. Adding 

UAFA to the Committee bill would be a big step toward making 

it a truly comprehensive bill. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Kolbe appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Congressman. I appreciate that. 
40 

Tamar Jacoby is the president and CEO of ImmigrationWorks 

USA, a national federation of small business owners working to enhance the immigration law. 

Thank you for being here. Go ahead, Ms. Jacoby. 

STATEMENT OF TAMAR JACOBY, PRESIDENT, 

IMMIGRATIONWORKS USA, WASHINGTON, DC 

Ms. JACOBY. Thank you, Chairman Leahy, Ranking Member 

Grassley, Members of the Committee. Thank you for this opportunity to testify. I am Tamar Jacoby, president of 

ImmigrationWorks USA. 

IW is a national federation of small and medium-sized businesses 

from across the sectors that hire immigrants, and I am here today 

on behalf of my members to express our support for this legislation. 

The less-skilled temporary worker, W-visa program in particular, is 

a thoughtful, innovative blueprint, and we look forward to supporting passage. 

But we also hope the measure can be improved, most importantly increasing the size of the W-visa program so it works to prevent future illegal immigration, diverting today’s unauthorized immigrant influx and replacing it with a legal labor force. 

I am going to use my time today to address three issues: 

Number one, the economic benefits of less-skilled immigration. 

The U.S. workforce is changing. American families are having 

fewer children with birth rates now well below replacement level. 

Ten thousand baby boomers are retiring every day, and the much 

younger workers coming up behind them are much more educated 

than their parents. 

In 1960, 64 percent of American workers were high school dropouts. Today the number is less than 10 percent. And together these 

three factors have had a dramatic effect on the pool of Americans 

available to fill low-skilled jobs. 

It is no accident that my members are constantly complaining 

about their difficulty finding workers. The pool they have to draw 

on is shrinking alarmingly. For those seeking to hire unskilled men 

of prime working age, the supply of U.S. workers is literally half 

the size it was in 1970. 

But, if anything, demand for less-skilled workers is growing. In 

1955, 25 cents of every dollar spent on food was spent in a restaurant; today it is 50 cents. And one of the fastest growing occupations in America is home health aide. 

Bottom line: we need less-skilled immigrant workers. We are 

going to need them increasingly in the years ahead. And far from 

taking jobs from Americans, by and large immigrants support and 

create jobs for U.S. workers. Low-skilled immigrant workers allow 

restaurants, for example, to expand, creating jobs for U.S.-born 

chefs, U.S.-born waiters, restaurant managers, and others—farmers, janitors, architects, you name it, up and downstream in the 

economy. 

The urgent question for the Nation is how to fill this need for 

less-skilled immigrant workers, which brings me to my second 

issue: the design of the W-visa program. The Gang of Eight Senators faced a daunting challenge in creating a less-skilled worker 

visa program. The existing programs offered little to build on. Both 
41 

are intensely disliked by employers and labor advocates alike. But 

the Senators largely succeeded, in my estimation. The W is a program is creative, well-crafted blueprint. Among its most innovative 

features, in contrast to other temporary worker programs, workers 

would not be tied to specific employers but can change jobs at will, 

accepting work from any employer enrolled in the program, approved to participate in the program. This was a win-win for workers and employers, most particularly for employers, providing flexibility and the possibility of hiring in real time. 

Number two, the size of the program is designed to adjust automatically in response to changing U.S. labor needs, growing in good 

times when the economy needs more workers and shrinking in 

down years when Americans are out of work. 

Number three, employers who participate in the program are required to try to hire Americans first and pay the same or more 

than they pay American workers. But in contrast to existing temporary worker programs, applying for a W-visa slot is relatively 

simple, straightforward, and predictable. 

Bottom line: My members and other employers find much to admire in the W-visa program. Our main concern—and this is my 

last point—is that the program may not be large enough to accommodate U.S. labor needs and as a result may not succeed in replacing the existing flow of illegal immigrants with a legal foreign labor 

force. 

Without a workable temporary visa program, the Nation can 

have no hope of ending illegal immigration. Of course, enforcement 

can help control the flow, but ultimately the best antidote to illegal 

immigration is a legal immigration system that works, meeting 

unmet U.S. labor needs with an adequate supply of legal foreign 

workers. 

We learned this lesson the hard way since 1986, and if we repeat 

that mistake again this year, in 10 or 20 years we are going to find 

ourselves in exactly the same predicament, wondering what to do 

about a new 11 or 12 million unauthorized immigrants. 

Most scholars trying to predict future labor needs base their estimates on the past, and most suggest that in average years to come, 

U.S. labor needs could attract as many as 250,000 to 350,000 to 

even 400,000 less-skilled workers. 

Will the W-visa program be able to accommodate these workers? 

Certainly not in its first 4 years, when the quota will range from 

20,000 to 75,000. And even the program’s upper limit of 200,000 

may be too low, even with potential exemptions for spouses and 

others. 

My written statement includes a number of ideas about how potentially to improve and expand the W-visa program, but in closing, I would like to underscore how much I and my members appreciate the work of the Senators who crafted this legislation. We 

look forward to working with this Committee and others in Congress to improve the W-visa program and pass the Border Security, 

Economic Opportunity, and Immigration Modernization Act. 

[The prepared statement of Ms. Jacoby appears as a submission 

for the record.] 

Senator Franken [presiding]. Thank you, Ms. Jacoby. 
42 

Next is Rick Judson, a builder and developer from Charlotte, 

North Carolina, who currently serves as the Chairman of the Board 

of the National Association of Home Builders. 

Welcome, Mr. Judson. 

STATEMENT OF RICK JUDSON, CHAIRMAN OF THE BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS, WASHINGTON, DC 

Mr. JUDSON. Thank you very much. On behalf of the more than 

140,000 member companies of the National Association of Home 

Builders, thank you, Chairman Leahy and Ranking Member Grassley, for the opportunity to testify today. My name is Rick Judson. 

I am a builder and developer from Charlotte, North Carolina, and 

NAHB Chairman of the Board. 

The Senate bill takes meaningful steps toward comprehensive 

immigration reform. NAHB appreciates the work of the Gang of 

Eight to include a fair and workable employer verification system 

that honors the direct employer-employee relationship and the current ‘‘knowing’’ liability standard. 

American and immigrant workers working alongside each other 

is not a new development in our industry. The inflow of foreignborn labor into construction is cyclical and coincides with overall 

housing activity. Their share was rising rapidly during the housing 

boom years even when labor shortages were widespread then. However, even during the severe housing downturn, the construction 

labor force continued to recruit new immigrants to replace, for example, native and foreign-born workers leaving the industry. 

According to the 2011 American Community Survey, foreign-born 

workers account for 22 percent of the construction labor force nationally, but it does vary from State to State. States with a larger 

share of foreign labor are more likely to experience difficulties in 

filling construction job vacancies as the home-building economy 

continues to improve. 

The improvement in housing markets over the last year represents new labor challenges for us all. In a recent NAHB survey, 

almost half of the builders surveyed experienced delays in completing projects on time. Fifteen percent of the respondents had to 

turn down some projects, and 9 percent were lost or cancelled due 

to the result of labor shortages directly. 

Despite our efforts to recruit and train American workers, our industry faces a very real impediment to full recovery if work is delayed or even cancelled due to the worker shortages. The W-visa 

program reflects a very good faith attempt on the part of the negotiators to address a serious matter that has been ignored for decades. 

Unfortunately, the program is near unworkable for many segments of the residential construction industry. The distinct set of 

rules for the construction industry, including an arbitrary and meager cap, not only ignores but often in cases rejects the value of the 

housing industry to the Nation’s GDP. Our industry should be afforded the same opportunities as any other segment of the economy. 

The 8.5-percent unemployment trigger is perhaps the most concerning component of the program. Putting an unemployment trigger in the program ignores the simple fact that immigrant workers 
43 

and native-born workers sometimes perform jobs that are dependent upon one another during the process. 

The inclusion of a commission in the program is yet another 

misstep. Only the marketplace can best make wage and worker 

shortage determinations. The most accurate way to measure 

whether immigrant workers are needed is for employers to try, and 

either succeed or fail, to hire U.S. workers. 

Moreover, for NAHB members, the concept of prevailing wage is 

very unfamiliar, and most would be deterred from the complex requirements under such a program. 

Another component of the W-visa program that should be addressed is the 90-day attestation requirement. This inflexible rule 

should simply be eliminated. Construction is project based, and employers must be given flexibility if a project is cancelled, completed, 

delayed, or by any other means of the employer—something outside 

his control. 

Another concern is the inclusion of complete portability. A registered employer faces the stark reality that a W-visa holder, on 

the first day of work, has the option to immediately quit and go 

elsewhere. NAHB believes that employers should have some assurances that after navigating the confusing and expensive process, 

the visa holder will actually have to show up for work. Employers 

should be given some sort of credit for lost resources based on that 

component. 

All these issues are complex, and NAHB welcomes a strong legislative debate. Tackling comprehensive immigration reform is an 

enormous task. Congress should not ignore the importance of the 

housing industry to the Nation during this critical juncture in the 

housing industry. 

Thank you very much. 

[The prepared statement of Mr. Judson appears as a submission 

for the record.] 

Senator FRANKEN. Thank you, Mr. JUDSON. 

Brad Smith has served as the general counsel and executive vice 

president of Legal and Corporate Affairs at Microsoft since 2002. 

Mr. Smith is responsible for Microsoft’s legal work, intellectual 

property portfolio, patent licensing business, government affairs, 

and philanthropy work. 

Please go ahead. 

STATEMENT OF BRAD SMITH, GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT, LEGAL AND CORPORATE AFFAIRS, 

MICROSOFT CORPORATION, SEATTLE, WASHINGTON 

Mr. SMITH. Well, thank you, Senator Franken and Ranking 

Member Grassley, for the opportunity to be here today and to support comprehensive immigration reform, including changes in the 

high-skilled immigration area. 

At Microsoft and across the technology sector, we are increasingly grappling with a significant economic challenge. We are not 

able to fill all the jobs that we are creating. The numbers help tell 

the story. 

At a time when unemployment nationally hovers just below 8 

percent, the unemployment rate in the computer and mathematical 
44 

occupation has fallen to 3.2 percent, and in many States and in 

many sub-categories, it has fallen below 2 percent. 

Unfortunately, the situation is likely to get worse rather than 

better. The Bureau of Labor Statistics has estimated that this year 

the economy is going to create over 120,000 jobs, new jobs, that will 

require a bachelor’s degree in computer science. And yet we estimate that all of the colleges and universities in the country put together will produce this year only 51,474 of these degrees. That is 

why high-skilled immigration and this legislation is of such great 

importance. 

The bill you are considering does three very important things: 

First, it addresses the green card shortage. It eliminates or goes 

very far to reduce the backlog. It eliminates the per country cap. 

And it creates a new green card category for advanced STEM degrees—all things that are needed. 

Second, in the H–1B area, the bill, quite rightly I believe, has improvements in the number of H–1Bs that are available, but accompanies this with changes to ensure that American workers are protected. It raises the wage floor for H–1B employees. It improves 

portability so H–1B employees can switch employers. It addresses 

a number of other issues. And even though we have some lingering 

questions about potential language and potential unintended consequences, we recognize that compromise is needed all around, and 

we hope to be able to work with this Committee and its staff as 

you go through the details. 

There is a third thing this bill does that is of extraordinary importance, and that is this: It creates a national STEM education 

fund. The reason we have such a shortage of high-skilled labor is 

because we have systematically underinvested as a country in the 

education of our own children. 

Consider this: There are over 42,000 high schools in America, but 

this year, the number certified to teach the advanced placement 

course in computer science is only 2,250. 

Senator Klobuchar, we are very grateful to the work that you 

and Senator Hatch led to really create the I-squared proposal, the 

I-squared Act. It creates the model for a national STEM education 

fund, and this bill follows much of that model. But I hope you 

might improve it even further. Raise the fees on visas. Raise the 

fees on some green cards and invest that money in the American 

people so we can provide our own children with the educational opportunities they will need to develop the skills to compete in an increasingly competitive world. 

As a company, Microsoft spends more on research and development than any other company in the world, $9.8 billion this year. 

And yet we spend 85 percent of that money in one country—this 

country, the United States. Our industry has come to Washington 

because we want to keep jobs in America. We want to fill jobs in 

America, and we want to help create more jobs in America. 

We know that in the short run we will need to bring more people 

from other countries to America. And we hope that in the long run 

some of them will follow in the footsteps of the Alexander Graham 

Bells and Albert Einsteins and Andy Groves, great technologists 

and scientists and entrepreneurs. 
45 

But we want to do more than that. We think the country should 

seize the moment to invest in our own children as well. And if we 

are going to do all of that, if we are going to do any of that, we 

need your help. 

Thank you. 

[The prepared statement of Mr. Smith appears as a submission 

for the record.] 

Senator FRANKEN. Thank you, Mr. Smith. 

Ron Hira is an associate producer—professor. Sorry. Sometimes 

that slips out, the old career. 

[Laughter.] 

Senator FRANKEN. Associate professor of public policy—I am the 

Chair now. 

[Laughter.] 

Senator FRANKEN. Ron Hira is an associate professor of public 

policy at the Rochester Institute of Technology in Rochester, New 

York, where he teaches courses on technological innovation, communications, and public policy. 

Professor. 

STATEMENT OF RONIL HIRA, PH.D., P.E., ASSOCIATE 

PROFESSOR OF PUBLIC POLICY, ROCHESTER INSTITUTE 

OF TECHNOLOGY, ROCHESTER, NEW YORK 

Professor HIRA. Thank you. I want to thank Chairman Leahy, 

Ranking Member Grassley, and the Members of the Committee for 

inviting me to testify here today. I have been studying high-skill 

immigration policy for more than a decade, so I am honored to 

share what I have learned with you. 

I also want to thank Senator Durbin for his leadership within 

the Gang of Eight to ensure that some reforms of the H–1B and 

L–1 visa programs were included in S. 744. 

I also want to thank Senators Durbin and Grassley for their long 

work in trying to provide clarity on how the H–1B and L–1 guest 

worker programs are actually being used in practice. 

Through high-skilled immigration, we have the potential of attracting the best and brightest from around the world and, more 

importantly, keeping them here. But much of our policy effort is 

misguided. It has been focused mostly on expanding guest worker 

programs rather than permanent immigration. 

I will focus my remarks today on the deeply flawed H–1B program. Right now, the majority of the H–1B program is being used 

to hire cheap indentured workers. The bulk of demand for H–1B 

visas is being driven by the desire for lower-cost workers, not a 

race for specialized talent or a shortage of American talent. The results show this. 

All of the top ten H–1B employers last year used the program 

principally to outsource American jobs to overseas locations. 

Outsourcing firms received the majority of H–1B v visas issued last 

year. Globalization and outsourcing will happen, but we should not 

be subsidizing and promoting it through flawed guest worker policies. 

Many claim that the H–1B guest worker program is primarily 

used as a bridge to permanent immigration. But the top H–1B employers have no intention of ever applying for green cards for their 
46 

workers. Accenture, for example, received a remarkable 4,000 H– 

1Bs last year alone, but it only applied for eight green cards. That 

is 4,000 H–1Bs, eight green cards. That means 500 H–1Bs for 

every green card that they applied for. It may be a bridge to immigration, but it is not a very good one. 

Outsourcing is only the most visible and obvious symptom of the 

underlying problems. Program misuse is widespread, even beyond 

the outsourcing firms. This is due to two fundamental problems. 

First, H–1B workers are cheaper than American workers; and, second, American workers do not have a first and legitimate shot at 

jobs and, in fact, can even be replaced by H–1B workers. Simply 

put, there is no shortage necessary before hiring an H–1B worker. 

So how does this happen? First off, Congress sets the wage floor, 

and it is far too low. H–1B workers can be paid 20 to 25 percent 

less than an American worker. And there is no requirement for employers to look for American workers before hiring an H–1B. Employers can even displace American workers. This is, again, in the 

law itself. 

S. 744, which we are discussing today, includes safeguards that 

move in a positive direction, but the bill falls far short. Employers 

will continue to be able to bring in cheaper foreign workers and bypass American workers. Let me illustrate. 

Under the proposed language in the law right now, wages will 

be set a little bit higher than they are currently. Under this bill, 

an employer could hire an electronics engineer in College Station, 

Texas, for as low as $39,000 a year. This is a job, an electronics 

engineer, where the starting salary for an entry-level engineer 

would be $61,000. So an employer would save up to $22,000 per 

year by hiring this H–1B worker. It is no surprise why they want 

to keep these wage floors as low as possible. 

S. 744 also requires a national website for posting of jobs as well 

as some language that talks about the fact that employers have to 

hire American workers who are equally qualified. We need a little 

bit more specificity on how that would be implemented and how 

that would work in practice. Will American workers be able to ask 

for—or complain if they are not hired? How is that going to be enforced? 

The good news is that some modifications to S. 744 could solve 

these problems. The provisions contained in Senate bill 600, the H– 

1B and L–1 Visa Reform Act of 2013, introduced by Senators 

Grassley and Brown, should be included in S. 744. It achieves these 

basic principles: American workers will have a first and legitimate 

shot at these jobs; and, second, it raises the wage floor to the average that Americans get. 

Given that the industry claims that they are seeking the best 

and brightest through the H–1B program, should not those best 

and brightest be paid at least the average wage? 

I look forward to your questions. 

[The prepared statement of Professor Hira appears as a submission for the record.] 

Senator FRANKEN. Thank you, Professor. 

Neeraj Gupta is the CEO and co-founded of Systems In Motion. 

Previously, Mr. Gupta was a member of the executive team at 

Patni Computer Systems, an IT services company. 
47 

Mr. Gupta. 

STATEMENT OF NEERAJ GUPTA, CHIEF EXECUTIVE 

OFFICER, SYSTEMS IN MOTION, NEWARK, CALIFORNIA 

Mr. GUPTA. Thank you. I want to thank Members of the Senate 

Committee for the opportunity to share my perspectives on how our 

immigration policy on H–1B and L–1 visas—on how our policy is 

having significant unintended consequences. 

I came to the United States as a graduate student, following 

which a tech company on the west coast applied for my green card. 

I went on to found an IT services company that was later acquired 

by an Indian offshore company. That company was number seven 

on the offshoring leader board, and I went on to lead a $700 million 

top line for them with 80 percent of our revenues coming from the 

U.S. 

Most recently, I founded a domestic technology services company 

to see if it can replicate the model that offshore companies have 

built with centralized software factors in places like Bangalore and 

Manila in U.S. locations such as Ann Arbor, Michigan. 

As a backdrop to my comments, I wish to emphasize that I support the proper use of H–1B visas to attract the best available global talent to the United States. My comments are largely limited to 

the use of visas by the technology services industry. 

In early 2009, in the midst of the Great Recession and inspired 

by the wave of hope and change, a group of us left the offshore industry to study and see if we could be a part of a solution that 

would create American jobs. After having offshored many jobs, we 

were looking to see how U.S. enterprises could leverage an alternative model here in the U.S. 

We knew the key drivers that led to the growth of the offshore 

industry. The industry had been buoyed by the availability and 

lower cost of resources and the easy mobility of these resources 

through the use of the H–1B program. Global services companies 

had built a model of efficiency with centralized factories, and we 

were posing ourselves the question: Can we build similar globally 

competitive technology services factories here in the U.S.? 

We looked at the primary drivers for the industry. The first one 

was economics. If you see the number one use of H–1B and L–1 

visas, as Professor Hira mentioned, a large majority of these visas 

are used by the offshoring industry. Also, the number one reason 

why enterprises use offshoring programs is for cost reduction. Is 

there not a direct correlation? How could one miss the linkage that 

the visas are primarily being used for lower costs? It did not matter 

who the beneficiary of these visas is. It could be a large offshore 

company with headquarters in India or the U.S. or a global major 

like IBM or Accenture. Every one of them was using it for one reason alone: reducing their costs. Economic rationale was the only 

reason. 

The U.S. market is the largest revenue source for offshore vendors. H–1B visas allowed them to create easy mobility and keep 

utilization rates high. The first question an Indian business would 

asked was: ‘‘Why do we need to hire an American worker when we 

can get a cheaper resource from India, benched in India at a lower 

wage, and mobilized on an as-needed basis?’’ 
48 

The offshore majors mostly hired H–1B employees because the 

current policy provided them a subsidy. It was clear that our policies should change, and the question that we ought to be asking 

is: Why do we need to hire an H–1B employee if we can train and 

develop a local worker? 

We also looked at the question of supply of U.S. workers. Here 

is one of the critical findings we found. While the finished goods 

may not be there, there is a lot of raw material available. What I 

mean is there is a lot of resources available that we can hire and 

train here in the U.S. While the specialist resources with degrees 

in computer science may not be available in abundance, there are 

a lot of resources that are available with associate degrees and 

other degrees that we can use for IT services work here in the U.S. 

The majority of the work that is done by H–1B employers is really not specialist work. Most of them have between 3 to 8 years of 

experience, and they go on to do work for large IT departments for 

U.S. banks, insurance companies, and telecom operators. This is 

not the work the kind for which we need more H–1B visas such as 

what Google and Microsoft might need and is not traditionally considered specialized work. 

I have a couple of recommendations. 

I would suggest the Committee look at the economic abuse and 

the associated disincentive to hire American workers, potentially 

some sort of a surcharge that would allow us to use those monies 

for hiring and training. 

I would also request the Committee to look at limiting the use 

of the visas for the direct use of an enterprise rather than for 

outsourcing or subcontracting. This would allow us to have more 

visas available for organizations like Google and Microsoft, not hit 

the visa caps where the majority of our current visas are being 

used by the Indian offshore industry, allow us to train domestically, and ultimately reduce visa abuse. 

If we challenge the industry, if they really need specialist resources and challenge them by saying let us offer—let us have 

them offer 125 percent of the top American wage to these H–1B 

employees, you will notice that a lot of the visa requests will go 

down, and it will be truly the specialists that will be required for 

our innovative startups and product R&D organizations for which 

we will use these visas. 

I would submit to the Committee that the policies you institute 

should truly focus on addressing the true gap of highly specialized 

skills and put a stop to the use of visas by the offshore industry. 

Thank you. 

[The prepared statement of Mr. Gupta appears as a submission 

for the record.] 

Senator FRANKEN. Thank you, Mr. Gupta. 

Fred Benjamin serves as the chief operating officer of 

Medicalodges, Inc., a company that currently operates 30 nursing 

homes in Kansas, Missouri, and Oklahoma. 

Mr. Benjamin. 
49 

STATEMENT OF FRED BENJAMIN, CHIEF OPERATING 

OFFICER, MEDICALODGES, INC., COFFEYVILLE, KANSAS 

Mr. BENJAMIN. Good afternoon, Senator Franken, Ranking Member Grassley, and distinguished Members of the Committee. I 

would like to thank you for holding this hearing and for the opportunity to appear before you today. My name is Fred Benjamin, and 

I am the chief operating officer of Medicalodges, a company that offers a continuum of health care services which include skilled nursing home care, rehabilitation, assisted living, and services for people with developmental disabilities. 

Medicalodges is a member of the American Health Care Association, which in turn is a member of the Essential Worker Immigration Coalition. I thank you, Senators Leahy and Grassley, for 

bringing the immigration reform debate to the forefront. I also 

greatly appreciate the efforts of the Gang of Eight for their bipartisan work culminating in the introduction of Senate bill 744. 

Medicalodges is employee owned, operating over 30 facilities in 

Kansas, Missouri, and Oklahoma, employing over 2,300 people. I 

am honored to have served in the health care industry for over 30 

years, including roles in skilled care and hospitals. I also serve currently as the chairman of the board of the Kansas Health Care Association, the leading provider advocacy group for seniors in Kansas. 

We have critical staffing needs, and there are chronic shortages 

throughout the nursing home community. It is a daily struggle to 

find enough dedicated caregivers, yet we are responsible for the 

lives of 1.5 million frail and elderly citizens nationwide. And this 

is the fastest growing sector of our population. 

The general causes of the shortage have been explored, but we 

are also confronted with chronic underfunding through Medicare 

and Medicaid, which prevents higher wages from being paid to our 

workers; a newly altered regulatory system that focuses on fines 

and penalties; dramatically increased competition for caregivers; 

annualized turnover rates of nearly 100 percent; and an aging 

workforce. We are almost completely dependent on the Government 

for payment for our services and, therefore, do not have the ability 

to raise our prices. 

Nearly 80 percent of the residents in our facilities are beneficiaries of the Medicaid or Medicare programs, and while we do 

not have the ability to raise our prices, we also have little ability 

to reduce our expenditures. 

The Government inspects every nursing home every year to look 

for errors in compliance with several hundred regulations with 

fines of up to $10,000 per day or closure for noncompliance. 

Dedicated caregivers in our facilities are the unsung heroes of 

the American workforce. Because of the difficulty of the job and our 

inability to increase wages or prices, long-term care has always 

been a high-turnover industry. My company’s turnover rate in 

lower-skilled categories is approximately 60 percent annually, and 

that is significantly lower than most companies in the field. We do 

focus on retention initiatives and employee recognition and involvement, but we need certified nurse’s aides, licensed practical nurses, 

and registered nurses to provide care around the clock, 24/7/365. 

We provide services in both rural and urban locations. Vacancy 
50 

rates for certified nurse’s aides can approach 20 percent, LPNs 10 

percent, and RNs 10 percent. 

So what have we done to address the shortages? Well, historically, we have hired extensively from the welfare rolls. The nursing 

home industry in general has hired over 50,000 welfare recipients 

in the last 3 years. Most of them are single mothers whom we train 

to become certified nurse’s aides and put on a career path in health 

care. And this is the only career path that I know of that can take 

people from economically disadvantaged situations to the middle 

class. 

We have set up tables in grocery stores to recruit new employees, 

sent direct mail, posted job openings in newspapers, schools, and 

even laundromats. We have offered signing bonuses and multiple 

incentives for recruitment. Yet it is still not enough. 

Comprehensive immigration reform should be guided by three 

basic principles: 

First, America must always remain in absolute control of its borders. 

Second, new immigration laws should serve the needs of the 

American economy. As always, American workers should be given 

the first preference. If an American employer is offering a job that 

American citizens are not willing or available to take, we ought to 

welcome into our country a person who will. 

Third, undocumented workers who pay taxes and contribute to 

our labor needs should be given a vehicle to earn legal status. 

We currently have a broken immigration system, and that is why 

the American Health Care Association and EWIC have helped to 

craft the business community’s basic principles of what comprehensive immigration reform should include. 

While everyone is still reviewing Senate bill 744, I do believe 

that it captures most of the needs of immigration reform. 

In conclusion, the labor shortage is our most pressing operating 

problem. If we are to meet the expectations set for us, policymakers 

must act now to expand access to new pools of staff. I urge you to 

take a broader look at this staffing crisis and think about the frail 

and elderly population we serve—our parents, our grandparents, 

our aunts, our uncles, our neighbors, and yours—those special people who have given so much to us and our country. We owe it to 

them to provide the best possible care, do we not? I am here to ask 

you who will care for them if this critical situation is not addressed 

immediately. 

Thank you, and I am happy to answer any questions. 

[The prepared statement of Mr. Benjamin appears as a submission for the record.] 

Senator FRANKEN. Thank you, Mr. Benjamin. Thank you to all 

the witnesses. 

Mr. Smith, despite the fact that overall undocumented immigration has gone down, the number of children arriving alone at our 

borders has doubled in recent years. Last year, 14,000 children 

younger than 18 arrived at our borders without a parent or guardian. Right now, the Department of Health and Human Services is 

charged with getting attorneys for these children, but about half of 

them do not get counsel. I recently heard a story by way of the 

American Bar Association of an immigration judge who told an 8- 
51 

year-old boy representing himself that the child had the right to 

cross-examine the Government’s witness. This is an 8-year-old boy, 

alone in court, and presumably he did not speak English. 

For months, I have been calling for changes to our immigration 

laws that will protect these children, several of whom are now living with friends or relatives in Minnesota. I am absolutely thrilled 

to see that the bill we are debating contains these provisions. 

Mr. Smith, can you tell us a little bit about Microsoft’s work on 

this issue and about the need for these protections? 

Mr. SMITH. Well, yes, thank you, Senator FRANKEN. At Microsoft 

we have been supportive through a pro bono legal effort, and I cofounded and continue to co-chair the Board of Directors of Kids in 

Need of Defense, or KIND. 

The mission of KIND is to provide legal counsel to children who 

are going through an immigration removal process but have been 

separated from their parents, precisely the individuals that you referred to. And as you mentioned, there has been an increase in this 

number in recent years. 

We are making heroic efforts across the country through the help 

of over 160 volunteer law firms, companies, and law schools. There 

are over 5,200 lawyers now volunteering their time to provide this 

legal representation. 

But as you point out, we have had clients as young as 2 years 

old. A child who is 2 years old who does not have a lawyer and who 

does not have a parent is basically defenseless when it comes to an 

incredibly important legal proceeding. And the bill before you does 

some very important focused things to help address this, as you 

pointed out. It mandates to the Attorney General that there be 

legal counsel appointed to represent a child in this situation, and 

it moves from HHS to the Department of Justice the responsibility 

to work on this, which makes perfect sense given the DOJ’s responsibility. 

As we look to the future, we are going to need to continue to recruit more volunteer lawyers, and we are committed to doing that. 

But I think that passage of this bill will definitely help. 

Senator FRANKEN. Thank you. 

Mr. Kolbe, this is not so much a question as a statement that 

you are not alone. I have heard many stories from my LGBT constituents about how our immigration system is tearing their families apart. 

I recently heard from one of my constituents, who I will call 

‘‘Mark.’’ Mark works for a Fortune 500 company in our State. He 

is a citizen. His partner, Alberto, is Italian and planned to move 

to Minnesota to be with Mark under the Visa Waiver Program for 

Europeans. But when they were identified as a same-sex couple by 

Customs and Border Protection at the airport, Alberto was interrogated, forced to surrender his personal e-mail password, and eventually told he would not be allowed to remain in the country. 

Alberto is now back in the U.S. on a different visa, but it is only 

a temporary solution, and Mark is prohibited from sponsoring 

Alberto for permanent residency. Under current law, Mark must 

choose between his career and the person he loves, which is not 

fair, it is wrong, and I just wanted to tell you that I and many 

other Senators on this panel are going to do everything we can to 
52 

try to see that we amend this bill to protect all families, including 

those of LGBT Americans. And I just want to thank you for your 

work on this issue, Mr. Kolbe. 

Mr. KOLBE. Thank you, Senator Franken, for those comments, 

and I think you have put your finger right on the source of the 

problem, the fact that it is not possible for me to sponsor my 

spouse in the same way that it would be for some man and a 

woman to do for the other there. So it is an unfairness that exists, 

and we hope that it will be corrected. 

Senator FRANKEN. Thank you. 

I only have a very short time, but, Ms. Smith, I think Vermont 

and Minnesota have a lot in common. Tourism contributed a lot to 

our economy, about $12 billion, and I am proud to cosponsor the 

JOLT Act. Senator Schumer’s bill will make it easier for Canadians 

and other foreigners to visit Minnesota and visit the Mall of America and fish in the boundary waters, et cetera. So I just want to 

say that, and thank you for your testimony on that. 

I will turn to the Ranking Member, Senator Grassley. 

Senator GRASSLEY. Thank you, and thanks to all the witnesses. 

I support H–1B with some changes, and I want to start with Mr. 

Hira and Mr. Smith with this question. It would be asking for some 

reaction to what used to be the Durbin-Grassley bill and now is the 

Grassley-Brown bill, regarding requirements for employers to first 

attest that they have tried to recruit and hire an American worker 

before applying for a foreign worker. It is my understanding that 

our good faith recruitment provision is not in this bill by the Group 

of Eight. 

Why does the business community oppose this simple and 

straightforward measure that would provide qualified people at 

home with a chance of high-skilled, high-paying jobs? Mr. Hira. 

Professor HIRA. I am not sure. I think you would have to ask the 

industry why they oppose it so much. But I think it is a very common-sense thing. It certainly goes to the spirit of what the program 

is supposed to do. And the good faith recruitment requirement is 

already in law. It just applies to a very narrow set of employers 

right now, H–1B-dependent firms, so-called H–1B-dependent firms. 

I see no reason why only a small number of firms should be doing 

good faith recruitment. All of these firms should be doing good 

faith recruitment of American workers before hiring an H–1B. 

This is an intervention into the labor market, and it seems to me 

that American workers should have that first and legitimate shot 

at those jobs. And S. 744 does not go far enough. I think the good 

faith recruitment that is in S. 600 would work very well. 

Senator GRASSLEY. Mr. Smith, please. 

Mr. SMITH. Well, I actually think most of the companies that I 

know do the kind of recruitment you would hope them to do every 

day. The truth is we have to hire both Americans and people from 

overseas to fill the jobs that we have. The bill has, as you know, 

a new requirement that all jobs get posted on a website managed 

by the Department of Labor. I am not aware of people objecting to 

that. And when I hear people raise concerns, it is more about other 

aspects relating to what the Department of Labor might look at 

years later with respect to the review of an individualized specific 
53 

hiring decision: Person A over Person B. And I think that is where 

you hear more people express reservations. 

Senator GRASSLEY. That provision that you said was added about 

the Internet, do you support that provision? 

Mr. SMITH. Yes. I think that we have no problem—we post things 

all across the Internet. We are happy to post it on one more 

website. 

Senator GRASSLEY. Okay. Thank you. 

Professor HIRA. Could I add, Senator? There is another provision 

in S. 744 that requires American workers who are equally qualified 

to be hired. I think that is an important provision to stay in, and 

I would be curious what industry thinks of that. 

Senator GRASSLEY. Mr. Smith, do you support that? 

Mr. SMITH. Well, I think the real concern that people have, Senator Grassley, is how that determination is made, when, and by 

whom. If the Department of Labor comes 3 or 4 years after an individualized hiring decision is made—let us say somebody has the 

opportunity to hire the number one student from the number one 

computer science department in the country, but that person was 

in competition from somebody who might have been at the bottom 

of the class at a less competitive university but has 2 years of work 

experience. Do you like an apple or do you like an orange? You do 

not really know until 3 years later when the Department of Labor 

tells you whether you were supposed to prefer apples over oranges. 

It is that kind of uncertainty that gives people pause. 

Senator GRASSLEY. Then you would suggest we work on that aspect of it. 

Mr. Hira, The Washington Post ran a piece about how the bill 

has a special carveout for Facebook and, quote-unquote, H–1B-dependent employers? Could you explain what provision the article 

references and your opinion on the carveout? 

Professor HIRA. Sure. The carveout is if a firm sponsors H–1B 

workers for green cards, they just put in the paperwork basically. 

That will reduce their H–1B-dependent numbers, and they will be 

less than H–1B dependent. So they will not have to do good faith 

recruiting, and they will not have to pay the higher wage levels. 

I think this is a mistake, and it will affect not just Facebook, and 

we should not be making policy around one firm. It is also going 

to affect a number of other firms that exploit the program. 

Senator GRASSLEY. Mr. Gupta, since you have been on an H–1B 

visa in the past, your experience with the program is particularly 

relevant. Why do you say that H–1B visa holders at tech service 

companies are not really specialized? 

Mr. GUPTA. Well, Senator Grassley, the majority of the work that 

the Indian offshore industry does is back-office IT work for large 

enterprises here in the U.S. And it does not require the necessary 

skill to do the traditional product development work that Microsoft 

might require their engineers to do. So the nature of the work is 

really less of research and development but mostly applying IT concepts in the context of a large enterprise, and this work traditionally tends to be easier than what may require a bachelor’s in computer science or a master’s in computer science. 

One interesting point to note is that the Indian industry, if you 

look at the numbers of people they hire and the number of visas 
54 

they apply for, has the majority of the visas. Now, in that, they do 

not have very many Americans, so you have to sort of look at this 

industry and say this is the industry that is hiring most of the 

H–1B visas, they are not hiring American workers, why is that? 

And I think the categorization of the H–1B program for the likes 

of Microsoft and Google is very different than how it is being utilized by the Indian offshore industry. And that segmentation is 

very important. My fear is that we look at sort of the larger issue 

that is raised by Microsoft and in the process we think about the 

supply issues and pin that as a standard thing across the industry. 

And in the process, we end up seeing that a majority of the visas 

end up being used for the wrong purpose. And even if we were to 

raise this limit from 65,000 to 110,000, what is not to say that 

100,000 of those visas will be used by the Indian offshore industry? 

Senator GRASSLEY. Thank you. 

Thank you, Mr. Chairman. 

Senator FRANKEN. According to the early-bird rule, Senator 

Klobuchar is next? 

Senator KLOBUCHAR. Thank you very much. Thank you to all the 

witnesses, and I appreciate your focus, many of you on the economic advantages of this bill. 

Mr. Smith, I wondered if you would take an opportunity to respond to some of the issues raised by Professor Hira and Mr. 

Gupta. 

Mr. SMITH. Well, thank you, Senator Klobuchar. Let me offer a 

couple thoughts. 

First, while the so-called Facebook rule is not going to benefit 

Microsoft, I actually think it is an important rule for the industry 

because it encourages companies to do what I think Professor Hira, 

in fact, has said is a good thing: apply so people can get green 

cards, and do not count that against the H–1B numbers. 

I can tell you at Microsoft we apply for a green card for every 

single person who comes to us on an H–1B visa, and we initiate 

that process in the first 30 days of employment. And I do not know 

what Facebook does, but I bet it is about the same because that 

is how competitive the industry is. 

I do think it is appropriate to recognize that not every company 

is in the same state. But I think, by and large, it is important to 

find rules that work well across the board. 

That is why, for example, I advocate that we should raise the 

fees paid by employers. They are paid by companies. They are not 

paid by individuals. 

Senator KLOBUCHAR. Mr. Smith, if we could just follow up on 

that—— 

Mr. SMITH. Okay. Sorry. 

Senator KLOBUCHAR [continuing]. Because I also want to get to 

some other issues. I will get to your second point. But on the fees, 

in the original proposal that Senator Hatch and I had, we increased the fees on H–1Bs by $1,000. That generated, I think, $3 

to $5 billion over 10 years for STEM education in the country. It 

was very important. 

I think the current Gang of Eight increases the amount of green 

cards but not H–1B. Is that right? 
55 

Mr. SMITH. Yes, that is right, and I personally would prefer what 

was in the I-Squared Act. Look, I think you could double the fee 

on an H–1B. That would raise it from $2,350 to $4,700. The visa 

lasts for 3 years. That would represent between half a percent and 

2 percent of what it costs to employ one of these individuals. And 

it would bring $517 million in per year, and if it is invested in a 

STEM fund, you could really help improve education across the 

country. 

Senator KLOBUCHAR. All right. Very good. Thank you. I appreciate it. 

And then, Mr. Kolbe as you know, I am a cosponsor of the Uniting American Families Act. What would be the effect if the Supreme Court did overturn DOMA in terms of the need for it? I do 

not know that answer. That is why I am asking. 

Mr. KOLBE. I am not sure that we know exactly, but this, of 

course, does not deal with the issue of marriage at all. This has to 

do with the employment provisions. And what this would simply 

say is while DOMA defines marriage as between a man and a 

woman for Federal purposes, this legislation simply says for immigration purposes that an individual can be immigrated into the 

United States. Once you go through the very lengthy process of 

proving that you are in that relationship and the evidentiary requirements are actually stricter than they are today for spouses 

coming in with an H–1B permittee. So it really applies only to the 

immigration side of it, not to the other parts. 

Senator KLOBUCHAR. Okay. I just think it is something worth 

looking at, the interrelationship, if that happens while we are debating this bill and figure out what to do. Thank you. 

Ms. Smith, the tourism issue, as you know, that has been near 

and dear to my heart. I head up the Travel Caucus, and we have 

done some great things with speeding up visa times as well as getting the Travel promotion Act implemented to advertise our country. I just got from our staff the newest numbers that have come 

out, and we have actually seen with these efforts an increase in 6 

percent of foreign tourism from 2011 to 2012, which, as you know, 

means many, many hundreds of thousands of jobs. So we are very 

excited about this since all tourism jobs are in America if people 

come to see the Mall of America or the beautiful State of Vermont. 

Could you talk about the JOLT Act and how this could be helpful 

in terms of the actual goals? One of them is interviewing 80 percent of all nonimmigrant visa applicants within 3 weeks of receipt 

of an application, exploring expansion of visa processing in China 

and Brazil. Could you talk about how this could actually work in 

reality? 

Ms. SMITH. Well, I think that the main point of this is the markets we are looking at right now, China and Brazil, we have—there 

is huge interest for them to come to our country. We know that. 

We go to trade shows. We have learned that. So anything we can 

do to expedite their ability to get these visas is going to help our 

country greatly. 

Senator KLOBUCHAR. Okay. Very good. And, also, you raised 

quickly at the end this idea that some of the travel promotion 

money was being siphoned off basically. What would be the effect 
56 

of that given these numbers that we are seeing since we started 

implementing the Travel Promotion Act? 

Ms. SMITH. I have been so impressed with Brand USA and what 

they have been able to do since they got going. It was kind of a 

startup, and now it is going full speed ahead, and that money, we 

are just entering markets that I never dreamed, we never dreamed 

that we would have the support to go into and recruit visitors. So 

I just think the Travel Promotion Act is a wonderful thing, Brand 

USA, and keeping that funding is hugely important to our industry. 

Senator KLOBUCHAR. Okay. Very good. Thank you. 

And, Mr. Smith, I am out of time. I was going to go back to you 

and have you finish your points, but if you could put them in writing, or maybe someone else will ask you. Thank you very much. 

Senator FRANKEN. Thank you, Senator KLOBUCHAR. 

I have Senator Sessions next, then in this order: Senators Durbin, Cornyn, and Whitehouse. Senator Sessions. 

Senator SESSIONS. Thank you. 

Well, these are very complex issues. Each one that we have discussed requires a lot of thought. I would just sum up on our previous agriculture panel that I think a tight, well-managed temporary seasonal worker program can be beneficial to America and 

should be considered, and we can achieve that. 

But I asked the question, what do you do in the off-season? Will 

people be able to bring their families? And then what will happen 

if people come for 3 years and they re-up for another 3 years? They 

have been here 6 years. They are married, they have a child, and 

then we are asking them to leave? Or maybe they do not have a 

child but have been here 6 years, are embedded here. So to me it 

is an unworkable system. We are not going to hunt those people 

down and try to deport them. 

The bill assumes also that and provides for—Mr. Judson, with 

regard to your workers, people that are here illegally today working would be legalized. They would be able to stay. And then in addition to that, throughout this whole area, people except, I believe, 

ag workers would be able to transition to any other job—truck drivers, heavy equipment operators, county employees, and that sort of 

thing. So it will have a ripple effect in competing against American 

workers for even the high-wage jobs. It just will. 

And we know, unless you business people believe the law of supply and demand has been repealed, it will pull down those wages. 

That is what experts tell us, and I think that is absolutely true. 

And then for people that are working at the lower-wage jobs that 

you are talking about, they will begin over time, when they become 

a legal permanent resident or a citizen in 10, 15 years, would be 

at a level where they draw earned income tax credit, all the meanstested social programs. So people would be brought in, businesses 

would pay them at this level, and the taxpayers would subsidize 

additionally. And I am not sure that is a bargain for the American 

worker. We need to think that through. 

So those are some of the matters that I am concerned about and 

we are going to get to the bottom of. We are going to find the numbers. And I got to tell you, it will not strengthen Social Security 

and Medicare. The numbers are clear. Those reports are in, and 
57 

they will be confirmed. It will weaken Social Security and Medicare 

perhaps by trillions of dollars. That is just what is going to happen. 

Mr. Gupta, I appreciate your insight into how the practical program is working for high-skilled workers. I totally believe and statistics and data shows that persons who come to America with 2 

years of college almost all do very well. They almost all pay in 

more taxes than they will take out over a lifetime. And that seems 

like a pretty—you know, I think that is a matter we ought to consider as we think about the total flow and who is admitted to 

America. 

Professor Hira, the bill would increase the amount of H–1B visas 

up to 180,000, 3 times the current cap. Some say that there is a 

dire need for these workers, especially in the STEM fields. You testified that unemployment data does not support that assertion and 

that raising the cap would significantly harm American workers. 

I hear college graduates are having a hard time, even engineering students are not able to be employed frequently in America. 

What is the status there? And how would you explain your testimony? 

Professor HIRA. Sure, I am happy to. Mr. Smith gave some data. 

He said a 3.2-percent unemployment rate. His data is right. The 

problem is his interpretation is wrong. What we would expect when 

we are at full employment in these occupations would be about a 

1.5-percent unemployment rate. So we are about twice where we 

should be at full employment. So he is misinterpreting the data. 

I do not think that raising the cap to 180,000 is warranted in 

any way, shape, or form because businesses do not have to show 

any kind of need for these workers. And the wage floors are still 

too low in the current bill, and so what you will see is just an expansion of cheaper labor. 

I would also note that the bill expands the base cap, so all you 

need is a bachelor’s degree. It does not really expand the advanced 

degree cap, the 20,000. It only expands it to 25,000. So it is kind 

of baffling to me that the high-tech industry, which usually puts 

up the poster child of someone who graduates from MIT and cannot 

stay in the U.S., in reality what they fought for was the base cap, 

which was importing the cheaper workers at the lower levels, not 

at the U.S. advanced degree graduates floor. 

Mr. SMITH. Could I just respond briefly? Just to note that while 

I said that the unemployment rate for the entire computer and 

mathematical occupation was 3.2 percent, I said that in many 

States and sub-categories it is below 2. In Washington State, for 

example, the last half of last year, it was 1.0 percent. 

Senator SESSIONS. I would just say to everyone that is listening, 

wages have not gone up for the working American over the last 15 

or 20 years. My Democrat colleagues have hammered that for a 

long time, not so much lately, and I think it is a reality. 

So we have high unemployment, particularly among low-skilled 

workers, and we have these highly capable people, particularly on 

the previous panel, arguing for more low-skilled workers, and I do 

not see how that can be justified at a time we have high unemployment. And we have got to move people from dependency on the 

Government into the workforce, and we are going to have to be 

more aggressive about that. 
58 

Welfare offices, unemployment offices, have to be job-creating offices. Americans cannot continue to bring in labor to do work and 

subsidize people who are not working by the millions. 

So, hopefully, we can work through this. I know a lot of the suggestions are good in these areas, and I am willing to work with 

them. But the reality is that there are some difficult challenges out 

there. 

Senator FRANKEN. Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. Let me welcome all 

the panel, especially my former colleague, Congressman Kolbe. 

Thank you for being here. I am a cosponsor of UAFA as well, and 

I hope that we can include it in this bill. I think it should be part 

of it. 

I sat on this Gang of Eight. I kind of hate this ‘‘gang’’ thing. I 

am sure Senator Flake does, too. But I have been involved in so 

many gangs, you would think I would have a few tattoos by now. 

[Laughter.] 

Senator DURBIN. But I would tell you that we spent a lot of time 

on a lot of subjects. We probably spent as much if not more on 

H–1Bs than anything else. And I would have been surprised if 

somebody would have told me that in advance. 

And we came to it basically—and I listened to Mr. Smith and 

Professor Hira, who has been a consultant—thank you for your 

kind words—on this whole subject. And we came to it with the 

premise that if we could bring in the talent, even the talent we are 

educating in America, and keep them here to grow our businesses 

and grow our jobs, it is in the best interests of the country. 

And I would say to my friend and colleague Senator Grassley, 

yes, it was Grassley-Durbin, Durbin-Grassley for a long time. I did 

not add my name as cosponsor this time because I was sitting in 

this group, and I felt that I really had to be open-minded to work 

toward a compromise. But please do not sue me for any alienation 

of affection. I agree with you on the principles that you have espoused. 

Here is what it gets down to, Mr. SMITH. When Microsoft and 

other companies come and tell me, ‘‘We are going to put our research facility in British Columbia if you do not give us some opportunity in the United States of America to bring in the talent we 

need to build the products we need to prosper,’’ I get it. 

I have also been a commencement speaker at the Illinois Institute of Technology and watched the graduates from South Asia and 

China coming across the stage for multiple advanced degrees, 

thinking we are handing them a diploma and a map on how to get 

on the Kennedy Expressway out to O’Hare at the same time, which 

I think is a mistake. 

But here is what it gets down to, Mr. SMITH. There are some specific abuses of H–1B. Professor Hira and Mr. Gupta have pointed 

them out. These outsourcing firms, like Emphasis, Wipro, Tata, 

and others, Americans will be shocked to know that the H–1B visas 

are not going to Microsoft. They are going to these firms, largely 

in India, who are finding workers, engineers, who will work at low 

wages in the United States for 3 years and pay a fee to Emphasis 

or these companies. I think that is an abuse of what we are trying 

to achieve here. 
59 

Most people would think, well, Microsoft needs these folks, and 

they would be shocked to know that most of the H–1B visas are 

not going to companies like yours. They are going to these 

outsourcing companies. 

I sat at the table and I said, ‘‘I am for increasing H–1Bs only if 

we offer the job to an American first at a reasonable wage so that 

they have a chance to fill that position, and if they cannot, then 

we bring in the talent.’’ 

Mr. Smith, what is wrong with that? And what is wrong with 

having a provision in here that says I do not want you to fire an 

American worker so you can hire an H–1B worker? 

Mr. SMITH. Well, first of all, Senator Durbin, I want to thank you 

for all the consideration you have given, frankly, to our industry’s 

point of view over the last few months, because I appreciate that 

an enormous amount of work has been done to strike a compromise. 

I personally think it is important that we both recognize the 

need for these firms to evolve their business model. I have had 

these conversations myself with them in India that encourages 

them to focus on hiring more people in the United States—— 

Senator DURBIN. If 50 percent of their employees are H–1B visa 

holders, if they have more than 50 employees and more than 50 

percent are H–1B visa holders, it suggests to you they know their 

economic model and how they can make money. 

Mr. SMITH. Well, look, as you know, the bill will put an end to 

that. 

Senator DURBIN. Thank goodness. 

Mr. SMITH. It will say that if they do not change that within 3 

years, they will not be eligible for any H–1Bs at all. And I frankly—— 

Senator DURBIN. Do you support that? 

Mr. SMITH. I told them that 3 years ago, they better recognize 

that. There is no large country in the world that allows companies 

to employ over half of their people from outside the local population. So I do support that. 

I do think it is important that one not eliminate their ability to 

do good work, because they also do good work. And I do not want 

to lose sight of that. 

Senator DURBIN. But would you buy my premise that if there is 

a job opening at Microsoft, the first responsibility of Microsoft is to 

hire an American? 

Mr. SMITH. I will buy that premise, but I will qualify it in this 

one respect: If the number one student in the Ph.D. class at the 

University of Illinois happens to come from China and that person 

as a Ph.D. student filed six patent applications and is clearly the 

pioneer in her field, I want us to hire her. 

Senator DURBIN. But—and I know this is subjective. Employers 

are subjective. 

Mr. SMITH. Right. 

Senator DURBIN. All things being equal? 

Mr. SMITH. If you can equalize everything else in life, then the 

job should go to an American. 

Senator DURBIN. An American first. 

Mr. SMITH. Absolutely. 
60 

Senator DURBIN. So offering this on a website—— 

Mr. SMITH. Absolutely. 

Senator DURBIN [continuing]. Attesting to the fact that you have 

done this? 

Mr. SMITH. I think as long as we do not get lost in the details 

that may have unintended consequences, yes, these kinds of things 

absolutely can work. 

Senator DURBIN. I see I am out of time here. I certainly wanted 

to ask Professor Hira and Mr. Gupta a question or two. But I do 

want to commend Senator Klobuchar and also you, Mr. Smith, because I think this notion of more homegrown American talent is 

something we all should applaud, and if it means charging a higher 

fee to bring in a foreign H–1B worker so that we can create scholarship opportunities for American students to become tomorrow’s 

engineers, I think that is what America wants us to do. And I am 

glad that Senator Klobuchar led in that effort, and I am glad you 

have endorsed it. 

Mr. SMITH. Thank you. 

Senator DURBIN. Thank you. 

Senator FRANKEN. We will go to Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Ms. Smith, you and I both come from border States, and I want 

to ask you a little bit about the importance of security, but also 

maintaining trade, tourism, and commerce between our trading 

partners, in your case primarily Canada, in my State’s case primarily Mexico. 

Do you find anything mutually exclusive between our desire to 

have a secure border and our desire to make sure that legitimate 

trade, commerce, and tourism flows across those borders smoothly? 

Ms. SMITH. No, I do not. 

Senator CORNYN. And I believe the figure that I have read is 

about 6 million American jobs depend on cross-border trade and 

commerce with Mexico. Do you happen to know what the economic 

impact of cross-border trade at Canada is? 

Ms. SMITH. I am sorry. I do not. 

Senator CORNYN. Well, I am sorry. I did not mean to pop that 

on you, but—— 

Ms. SMITH. That is all right. I know it is very, very relevant, especially to the border States, but, you know, really all the way 

down. I understand the importance. 

Senator CORNYN. And have you found that the staffing at the 

borders and the infrastructure both need to be improved? 

Ms. SMITH. Very much so. 

Senator CORNYN. And that will not only provide a more secure 

border, but it will also enhance that cross-border commerce and 

trade in a way that helps grow jobs and grow the economy here in 

the United States. Would you agree with that? 

Ms. SMITH. I agree, and we have a situation right now where we 

have airlines in Toronto that cannot—we do not have the Border 

Patrol agents to have them come year-round. They can only come 

in the winter because in the summer those agents are put onto 

Lake Champlain. So we have to stop the service, and it is four 

flights a week bringing 60 people, 70 people per flight from Toronto 

to our State. 
61 

Senator CORNYN. Mr. Judson, we heard the first panel—and I 

know you were in the audience—talk a lot about agriculture and 

its important to our economy and what percentage of the workforce 

in agriculture is undocumented, and you alluded to the dependency 

of the construction industry in the United States on this workforce 

as well, and I know you want it to be a legal workforce. 

But you also described the cap on construction jobs as ‘‘arbitrary 

and meager.’’ Can you explain to me why Congress would want to 

discriminate against the construction industry and treat them any 

differently than the agriculture industry? 

Mr. JUDSON. I cannot answer the rationalizations why that 

would be the case, but I can give you statistical support data. We 

are in the worst economic recession/depression our industry has 

ever experienced. So just to hypothetically say we are at 50 percent 

of where we were construction-wise, that is 50 percent of where the 

demographic demand for housing would be. 

There are three jobs created for every house that is built, so if 

we are half a million houses short of production today and we go 

back over the next 12 or 18 or 24 months to economic demographic 

demand, 500,000 houses at three jobs per house, that is a million 

and a half jobs. 

Our 30,000 jobs are not going to quite get that done, and we are 

going to be right back in that situation of having a labor shortage 

and not having a way to solve it. 

Senator CORNYN. And you alluded to the provision of the bill that 

dealt with prevailing wages. I am just guessing that you believe 

the market ought to set the wages in the construction industry, 

like it does in most of our economy. Did I understand that correctly? 

Mr. JUDSON. As Senator Sessions alluded, the supply-demand 

scenario in law still applies in construction very vehemently. Our 

houses are clearly a product of supply-demand. We are not necessarily interested in a lower price as much as we are in meeting 

the demand of the public. Components of a home are generally 

done on a square foot basis, $3 for painting or $4 for brick or whatever it might be, and that is within general parameters. It will 

vary by locale and certainly by quality. But we are saying that that 

local market would drive the product price and the labor that you 

pay more so than with an arbitrary this is the prevailing wage and 

consequently you are generating greater productivity because you 

are paying a higher wage. 

Senator CORNYN. And if I could just conclude, would you be satisfied with being treated like any other sector of the economy in this 

bill? 

Mr. JUDSON. Very simply, yes. 

Senator CORNYN. Rather than being targeted for special treatment, as you have been? 

Mr. JUDSON. Yes, sir. 

Senator CORNYN. Thank you. 

Senator WHITEHOUSE [presiding]. In the order, I am up next, and 

then Senator Flake follows, and that concludes the panel. 

My first question is for Ms. Jacoby. Ms. Jacoby, a lot of this 

comes to us by what we have seen. I give pretty regular community 

dinners in Rhode Island. I listen to folks, and on a couple of occa-
62 

sions, people have come up afterwards to talk to me, and they have 

described—these are mid-level professional people, and they have 

described working for large, well-known companies that have an office in Rhode Island and being laid off and having people brought 

in from out of the country in order to do their jobs, people who live 

in hotels, get brought in from the hotel in a bus in the morning, 

do the work, go back, live in the hotel. And, obviously, the calculation for the company is that it is cheaper to lay off the American 

worker, avoid whatever benefits and costs there might be associated with them, and bring in people from out of the country to do 

the same work. Obviously, very distressing and very discouraging 

for the American mid-level professional who got laid off and in 

some cases had to help train the people who are here from out of 

the country. 

Are you satisfied that this sort of activity, there is enough teeth 

in the bill to prevent that from continuing? Because I think we can 

all agree that that is a very unfortunate choice, and if we do not 

take away the incentives for corporations to behave that way, it 

seems to me they will continue. 

Ms. JACOBY. The situation you described is deplorable. The Wvisa would not apply to the people in the circumstance you are describing. The W-visa is only for people with less than a bachelor’s 

degree. So the W-visa is for a much less skilled pool of workers. 

The requirements that you are talking about, the concerns you 

are expressing, of course, apply in that less-skilled tier of the labor 

force as well. No one wants a situation where there are Americans 

available for the job to be turned away and immigrants to be hired 

instead. 

The W-visa does have, I believe, adequate protections against 

that. Employers do have to try to find Americans. They have to pay 

the immigrants at least as much as they are paying comparable 

Americans or more. There will be robust back-end audits to make 

sure that they do the kind of recruitment they are supposed to do. 

Senator WHITEHOUSE. And you are satisfied with the strength of 

those audits? 

Ms. JACOBY. We have not seen them yet, but the point is that 

we are replacing—in the less-skilled category, we are replacing 

what is now a completely unregulated Wild West unauthorized 

market with a legal market, and that should prevent and remedy, 

to the degree it goes on, the kinds of things you are talking about 

rather than invite it. That is the beauty of this, is it would replace 

that Wild West environment with a legal situation. 

Senator WHITEHOUSE. Let me ask another question. This is at 

the highest tech end. I guess Mr. Smith and Professor Hira, let me 

ask you. I am thinking of a Rhode Island small business that has 

a very high technical level of accomplishment. They do not have a 

colossal HR department. They work in a very particular niche. 

When they can identify the person whom they need as the person 

whom they need, there may be no person with that skill set quite 

like them anywhere to be found. If you need a specific, so to speak, 

pro from Dover, does this bill give you the capability to reach out 

and recruit that person? And the concern that I have heard from 

these businesses is that even if you have identified that person and 

start recruiting them through the existing H–1B process, it creates 
63 

so much uncertainty and so much delay and so much havoc that, 

if they have an international capability, they will go wherever. 

They will go to Germany, they will go to India, they will go to 

China. Why go through that here? 

Are you comfortable that we can compete for those kind of people 

where there is a very specific person that you are looking for? 

Mr. SMITH. Well, I think the bill takes a number of important 

steps to help precisely that type of employer. I think one of the 

points you hit on which is really important, a Rhode Island employer may find a foreign candidate just by going to Brown or a 

local university; 54 percent of all the Ph.D.s in computer science 

are going to foreign individuals. 

I think that the new STEM green card helps. I think that the 

H–1B numbers help. As long as we avoid unintended consequences 

in some of the language, I think it is a system that will work, and 

all of this will benefit from continued discussion—— 

Senator WHITEHOUSE. Microsoft is enormous and has a huge HR 

department that can plow its way through a fair amount of complexity. Professor Hira, what do you think for a small business? 

Professor HIRA. Well, I think the numbers just show that 37,000 

different employers got H–1Bs last year, and the H–1B program 

was oversubscribed again. There are lots of very small businesses 

that have easy access to the H–1B program. There is no indication 

that there is any real difficulty, and I do not think what has been 

proposed in S. 744 would make it any more complicated or more 

difficult to get access to those workers. And, in fact, I think the 

good faith recruitment should be included in there. 

You have to strike a balance. You want employers to be able to 

get those specialized skills. And there is no one that I know of who 

is arguing against that. The question is you have got to have the 

right balance, have access to the program, but have the right kinds 

of safeguards in place. 

Senator WHITEHOUSE. Thank you. 

Senator Flake. 

Senator FLAKE. Thank you. 

Mr. Smith, you mentioned in your testimony the 25,000 figure in 

Washington State, the gap between jobs available and the workforce. Can you touch on the multiplier effect? You did not touch on 

that in your testimony. I would just be interested in your assessment of the multiplier effect. 

Mr. SMITH. Yes. In our industry, study after study has pretty 

much shown that each job that we add has a multiplier effect of 

4.3, meaning that it leads to the creation of 4.3 additional jobs in 

the economy. 

So, for example, this recent study that was done in Washington 

State showed that over the next 4 years, unless something is done, 

there will be 50,000 open high-tech jobs, and when you add it all 

up, it adds up to 160,000 jobs that the economy loses the opportunity to create. 

Senator FLAKE. Well, thank you. That is significant. 

Mr. Judson, you talked about the E–Verify program. That was 

something that we wanted to make sure in drafting this legislation 

that it worked for employers and it worked for employees as well 
64 

and for our system here. Do you think that we have struck the 

right balance there, or what, with regard to E–Verify? 

Mr. JUDSON. We are cautiously optimistic with that program. We 

support the concept. It is moving in the right direction. We think 

it does a couple of things very constructively, which is to solidify 

this separation between legal and illegal, which ultimately leads to 

an improvement of the social and economic fabric for that worker. 

So we are supportive in the direction, yes. 

Senator FLAKE. Okay. Thank you. 

Ms. Jacoby, I know that you noted in your testimony you feel the 

W-visa program needs to be a lot bigger. I think a lot of us would 

prefer it that way. But you mentioned at the end, though, that, 

‘‘Most of the ImmigrationWorks members I have consulted agree: 

the W-visa program is significantly better than the status quo 

[which is] no program.’’ Do you want to elaborate on that at all? 

Ms. JACOBY. Well, I believe that creating a program for lessskilled immigrant workers is the most important—is the heart of 

immigration reform. The reason we have 11 million unauthorized 

immigrants in the country is because there is no way for an unskilled work who does not have family here who wants to work 

year-round to come to the country. So the way to prevent illegal 

immigration in the future is to create a usable legal program for 

less-skilled immigrant workers. The W-visa is such a usable program. I believe it is the heart of the fix that we need. We talk 

about fixing the broken system. It is creating a program for lessskilled workers. And I believe the W-visa program is, as I said, a 

very thoughtful and ingenious and creative, break-the-mold program. I do wish it was bigger, but it is certainly better than nothing. 

Senator FLAKE. Right. And there is nothing to suggest that 5 

years from now, if we just realize that it is completely out of whack 

with labor needs, that we cannot revisit it and up the numbers. Is 

that right? 

Ms. JACOBY. Well, one thing, one of the suggestions I make in 

my written statement is that we might put something in—one 

might put something in the bill that suggests that Congress come 

back and revisit it, at least look at the workings of the entire bill, 

in fact, in a few years. This is a vast new change in the system. 

Congress does not want to start over again in 5 years, but at least 

some sort of reconsideration of some of the things, including if 

these low quotas go through, whether they have proved adequate. 

Senator FLAKE. All right. Thank you. 

Congressman Kolbe, we have been through this before years and 

years ago. 

Mr. KOLBE. We certainly have. 

Senator FLAKE. The Kolbe-Flake-Gutierrez bill, if I recall it right. 

Do you want to make any comments about where you think this 

particular legislation is—I know you came to testify on something 

specific, but more broadly, do you see this as a workable program 

overall in terms of matching labor needs and the border security 

needs, which you are all too familiar with, as well as respect for 

the rule of law? 

Mr. KOLBE. Senator Flake, yes, we certainly have worked on this 

for a number of years, and I have not had a chance to study this 
65 

in detail as, of course, the bill that you and I and Congressman 

Gutierrez drafted years ago, which I might say many of the pieces 

of that find their way into this bill. It is very clear that the core 

of it, I think, is still there, and so in that regard, I think it is a 

good and a workable piece of legislation. 

Several suggestions along here today by the other panels I think 

are things that need to be looked at, including the level of the H– 

1B visas, how you define when the border is actually secure, which 

really puzzles me as to how you are going to really define that in 

a meaningful way. I think all of these things really have to be addressed, but that is what the purpose of these hearings and the 

work that is being done now is, and I commend you and the others 

and all the Members of the Senate for taking this matter up. 

I can say quite safely that a year ago I would have said there 

was no chance this was going to happen, and here we are today. 

So I think it is progress, and I think it is moving definitely in the 

right direction. 

Senator FLAKE. All right. Thank you. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Senator Graham is recognized. 

Senator GRAHAM. Thank you, Mr. Chairman. 

Congressman Kolbe, if we fail this time around, what do you 

think the consequences for immigration reform would be? 

Mr. KOLBE. If we fail this time around, if we take it up and we 

fail this time around, it is going to be a lot tougher. It only gets 

more difficult with the passage of time. 

Senator GRAHAM. Okay. You have got a high-skill workforce 

problem, you have a low-skill workforce problem. Here is one common denominator, from my point of view. I want American businesses to have access to labor that we cannot find here at home 

only after you have tried to find an American worker at a reasonable price, competitive wage, and that endeavor does not result in 

finding the worker. 

Mr. Smith, from the Microsoft perspective, do you prefer to hire 

American workers? 

Mr. SMITH. Well, Senator Graham, as I was saying earlier, we do 

85 percent of our worldwide research here in the United States. I 

think that tells you how enthusiastic we are about hiring American 

workers. 

Senator GRAHAM. So the answer would be yes. 

Mr. SMITH. Yes. But I will also add that the key to having a globally world-class research and development center in the United 

States is to be able to combine world-class American talent with 

some world-class talent from other countries as well. 

Senator GRAHAM. As I understand the H–1B program, there is 

a requirement that you try to find an American worker first. Is 

that correct? 

Mr. SMITH. There are some requirements, and, look, we will go 

and we recruit every day on over 100 college campuses, among 

other places, for American candidates. 

Senator GRAHAM. Ms. Jacoby, is there a desire in your part of the 

economy to hire American workers if you can? 
66 

Ms. JACOBY. Absolutely, and the overwhelming majority of employers would rather hire an American. You do not have cultural 

issues—— 

Senator GRAHAM. And under our legislation, you are required to 

go out and seek that American worker. Is that correct? 

Ms. JACOBY. Yes, you are. But in a situation where you have 

tried to hire an American worker and you cannot find them, employers need a fast, legal, orderly way of—— 

Senator GRAHAM. Well, there you go. That is the goal of this bill. 

If an American company is trying to find labor to stay in America, 

not leave the country, we want to make sure that they can do business in America. 

Do we have graduates at our major universities in the advanced 

science fields from overseas? 

Mr. SMITH. Well, Senator Graham, just to give you an example, 

54 percent of all the Ph.D.s issued this year in computer science 

went to foreign students; 46 percent of all the master’s degrees in 

computer science went to foreign students. So the answer is yes. 

Senator GRAHAM. And so here is the goal of the legislation: to incorporate those talented people into the American business economy. Is that correct? 

Mr. SMITH. Yes. 

Senator GRAHAM. We do not want to educate them in our finest 

universities and they go back to the country of origin and open up 

businesses against us. We would like for them to be part—use their 

talents as part of the American enterprise system. Is that correct? 

Mr. SMITH. I wholeheartedly agree. 

Senator GRAHAM. Okay. Well, that is what we are trying to do. 

And do you believe this bill accomplishes that? 

Mr. SMITH. I am a strong supporter, we are a strong supporter 

of this piece of legislation. 

Senator GRAHAM. Okay. Mr. Judson, from the home builders’ 

point of view, I know we do not have as many visas as you would 

like, but do you prefer to hire an American worker if possible? 

Mr. JUDSON. To overuse the phrase that has been used already 

today, all things being equal, the answer is yes. Our industry has 

been deglamorized over the past few years, as Ms. Jacoby pointed 

out. Educationally, the construction industry is not viewed as being 

the most glamorous of careers. So, consequently, people have 

moved away. That has been our difficulty in filling some of our 

entry-level positions. 

Senator GRAHAM. Under this bill you have to advertise and you 

have to seek out an American worker before you can get a foreign 

worker. Do you understand that? 

Mr. JUDSON. I do. 

Senator GRAHAM. Okay. Do you agree that that is a fair concept? 

Mr. JUDSON. That is reasonable, yes. 

Senator GRAHAM. Okay. To my colleagues, what we are trying to 

do is make sure that the best and the brightest throughout the 

world who come to America to receive an education can stay here 

because it is to our benefit that they stay. When it comes to building homes and running the economy in the low-skill area, we are 

trying to make sure that American businesses can access labor only 

after an American worker is not found at a competitive wage. 
67 

So if we do not get this part of it right, do you agree with me 

that our economy is going to be in trouble because we are not growing the workforce in America fast enough to meet our needs? Does 

anybody disagree with that concept? If you disagree, say so. 

Okay. Well, nobody said so, so you must all agree. Thanks. 

Senator WHITEHOUSE. I am told that Senator Lee is seconds 

away and wishes to ask some questions, so we will give him a few 

minutes, and if—— 

Senator GRASSLEY. I have a question for—— 

Senator WHITEHOUSE. There we go. The Ranking Member is recognized until Senator Lee arrives. 

Senator GRASSLEY. Okay. You can finish your answer, I am sure. 

In addition to creating a new temporary working program, the 

bill sets up an electronic monitoring system that will require employers to keep track of visa holders whom they employ. Presumably this would mean that employers must report to the Department of Homeland Security when a visa holder shows up on the job 

or when he fails to report. The language in the bill lacks clarity 

and detail in this matter. While E–Verify is an established tool, 

this monitoring system does not even exist today. 

So, Ms. Jacoby, do you think that employers will be able to comply with this new electronic monitoring requirement? And who do 

you anticipate will pay for the creation and maintenance of this 

new electronic monitoring system? 

Ms. JACOBY. Thank you, Senator. The new monitoring system 

you are talking about I understand is modeled on the SEVIS system that tracks foreign students. No, low-skilled employers do not 

have to comply with anything like that at the moment. They do not 

have to comply with applying and getting visas. But the overwhelming majority of my members would rather be on—want to be 

on the right side of the law. They try to be on the right side of the 

law, and they want to be in the future. And I believe that if a program is provided, they will use it and they will get used to some 

of these hurdles, including having to monitor workers and use this 

system to track when they take a job and leave a job and that sort 

of thing. 

Senator GRASSLEY. Okay. You can go ahead and call the new 

panel. 

Senator WHITEHOUSE. All right. It looks like Senator Lee is a little further out than we thought, so I will discharge this panel. I 

want to thank you all for participating in what is a very helpful 

and wide-ranging hearing, and we will be in recess just for 2 minutes while the next panel comes up and the signs are changed. 

[Pause.] 

Senator WHITEHOUSE. Good afternoon to the new panel, and 

thank you for being here. Welcome to the immigration hearing of 

the Senate Judiciary Committee. 

I am going to introduce all of the panelists very briefly, but the 

first person that I am going to be introducing is Gaby Pacheco, who 

is a DREAMer and an immigrant rights leader currently serving 

as the director of the Bridge Project in Miami, Florida. She is a cofounder of Students for Equal Rights as well, and I know that Senator Durbin wished to say a few words, so I will defer to him for 

a moment. Then we will go across the rest of the panel. 
68 

Senator DURBIN. Thanks, Mr. Chairman. I thank you for this. At 

2 o’clock, the Senate goes in session, and I have a bill on the floor, 

so I have to be there, and I explained that to Gaby in advance. I 

would not want her to think I was leaving in her time of testimony. 

Gaby Pacheco has been such an important part of this effort on 

passing the DREAM Act. She came to the United States from Ecuador at the age of 7. She was the highest-ranking junior ROTC 

student in her high school. She served as president of Florida’s 

Junior College Student Government, and then she got actively involved in the DREAM Act. 

I have been at this for 12 years. Gaby, I do not know how many 

you have been, but it has been a few. It involved a number of students from Florida who would be eligible for the DREAM Act who 

literally walked from Miami to Washington, and along the way 

gathered students of like mind, some eligible, some who were not 

eligible but wanted to support the cause. And it is a cause that has 

grown in intensity because of your leadership, Gaby, and so many 

others like you. 

So I want to thank you for being here today, and I will stick 

around as long as I can and try to come back for questions. But 

the DREAM Act is where it is today because of the courage of 

young people like yourself. Thank you. 

Senator WHITEHOUSE. The rest of the panel is Janet Murguı ́a. 

She is the president and CEO of the National Council of La Raza, 

the largest national Hispanic civil rights and advocacy organization 

in the United States. You do a wonderful job. I am delighted that 

you are here. 

Dr. David Fleming, the senior pastor at the Champion Forest 

Baptist Church in Houston, Texas, where he has served since 2006. 

Mark Krikorian, the executive director at the Center for Immigration Studies, who has worked there since 1995, a veteran in the 

field. 

Laura Lichter, Esquire, currently serves as president of the 

American Immigration Lawyers Association based in Denver, Colorado. 

And the Honorable Kris Kobach, Kansas’ Secretary of State. 

From 2001 to 2003, he was also counsel to U.S. Attorney General 

John Ashcroft at the Justice Department. 

Welcome, and we are delighted to have you here. Please proceed 

with your statements. Ms. Pacheco? 

STATEMENT OF MARIA GABRIELA ‘‘GABY’’ PACHECO, 

IMMIGRANT RIGHTS LEADER, DIRECTOR, BRIDGE PROJECT, 

MIAMI, FLORIDA 

Ms. PACHECO. Thank you, Chairman. I also would like to recognize Chairman Leahy, Ranking Member Grassley, and the Members of this Committee for giving me the opportunity to testify 

today in support of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. 

My name is Maria Gabriela ‘‘Gaby’’ Pacheco and I am an undocumented American. I was born in 1985 in Guayaquil, Ecuador. In 

1993, at the age of 8, I moved to the United States with my parents and three siblings. 
69 

Out of everyone who is here testifying today, I am the only one 

that comes to you as one of the 11 million undocumented people 

in this country. 

My family reflects the diversity and beauty of America. We are 

part of a strong working class, a mixed-status family who are your 

neighbors, classmates, fellow parishioners, consumers, and part of 

the fabric of this Nation. 

My father is an ordained Southern Baptist preacher who currently works as a window washer. My mom is a licensed nurse’s 

aide, but due to health conditions, she has not been able to work 

for the last couple of years. Their hope is to continue to support 

their family while at the same time contributing to this country’s 

economic growth. 

My oldest sister, Erika, is eagerly counting the days when she 

is able to apply for citizenship later this year. She is married to a 

United States citizen and has two United States citizen children, 

Isaac and Eriana. She will be able to vote in the next national election. 

Mari, my second oldest sister, currently works managing a construction company. And although a DREAMer, she did not qualify 

for the Department of Homeland Security’s new initiative, Deferred 

Action for Childhood Arrivals, DACA, because she is over the age 

of 30. However, the DREAM Act provisions under S. 744 will provide her a permanent path forward. 

My younger brother is a proud business owner; he has a carwashing business. Last month, at the age of 27, and because of 

DACA, he was able to get a driver’s license and buy his first car. 

However, DACA is not a permanent solution. 

Last, I am the wife of a Venezuelan of Cuban descent, who has 

lived in the United States for 26 years. Miraculously last year, 

after 18 years of waiting, he was able to obtain his legal permanent 

residency. My husband’s process shows how our immigration system is broken, outdated, and desperately in need of modernization. 

My family is not alone. In 2009, my friend Felipe Souza Matos, 

co-director of ‘‘Get Equal,’’ asked me to join him on a journey and 

campaign to seek immigration reform. In my heart I knew that in 

order to put an end to the separation of families, heal the hurt and 

the pain of our communities, we needed to peacefully demonstrate 

and courageously bring to light our (lack of) immigration status. 

On January 1, 2010, Felipe, Juan Rodriguez—now Juan Souza 

Matos—and Carlos Roa, and I began the Trail of Dreams, a 1,500- 

mile walk from Miami to Washington, DC. 

Through this walk we wanted to show our love for this country, 

which we consider our home. We risked our lives, put everything 

on the line. We walked in the cold and felt the pain in our bodies 

and the blisters and callouses forming on our feet. We walked in 

faith knowing that before us in our country people had put their 

lives at risk to fight for freedom, for legal reforms, and the American values that this country was founded on and aspires to. 

We did not allow anything to stop us, including the fringe elements of American society. We witnessed firsthand how misinformation and fear mongering confused people about immigrants. 

The phrasing and images that some use to portray people like me, 

undocumented Americans, have created a false perception of who 
70 

we are. It was also during the trail we saw firsthand how fear 

translated into hate. I vividly remember how robes of white, in a 

KKK demonstration, had colored the streets of a small town in 

Georgia. In fact, an event eerily similar happened this past Saturday in Atlanta, Georgia. America’s history, however, shows that we 

have been here before and we have overcome. 

Since the walk, I have carried the stories and dreams of thousands of people we met along the way. People working in the fields, 

people working in chicken farms, day laborer centers, homes as domestic workers, newspapers as journalists, small businesses as 

owners, and health clinics as doctors and nurses. These people are 

mothers, fathers, children, and neighbors. Their dreams are held in 

the hands of this Committee and the rest of Congress. Their 

dreams now lie in the Senate bipartisan bill S. 744. 

Legalizing people like me, the 11 million of us, will make the 

United States stronger and will bring about significant economic 

gains in terms of growth, earnings, tax revenues, and jobs. It is 

time to set fear aside and deal with an issue that is affecting the 

entire Nation, and doing nothing is no longer acceptable. 

Americans deserve a modernized immigration system. Individuals who are citizens in every way except on paper ask for a road 

map to citizenship, 

In the words of my good friend, journalist Jose Antonio Vargas, 

who testified in front of this very Committee: ‘‘What do you want 

to do with me? What do you want to do with us? 

With dignity and faith I surrender my talents, my passion, my 

life. I ask you to give me, my family, and the 11 million of us an 

opportunity to fully integrate and achieve our American Dream. 

Thank you. 

[The prepared statement of Ms. Pacheco appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you, Ms. Pacheco, and welcome, 

Ms. Murguı ́a, to you. Welcome. Please proceed. 

STATEMENT OF JANET MURGUI ́A, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, NATIONAL COUNCIL OF LA RAZA, 

WASHINGTON, DC 

Ms. MURGUI ́A. Thank you, Mr. Chairman. Thank you to Chairman Leahy and Ranking Member Grassley and all the Members of 

the Committee for the opportunity to appear before you al today. 

I want to thank the bipartisan group of Senators who worked to 

find common ground and a common-sense solution on this very difficult issue. Senate bill 744 is a significant milestone and presents 

a historic opportunity to move forward on immigration reform. 

First, there is a clear path to legalization and eventual citizenship at the core of this bill. The sponsors of Senate bill 744 recognize that the U.S. has been successful as a nation of immigrants 

because we allow and encourage those who come to our shores to 

fully participate in American life. This legislation seeks to ensure 

that the best interests of our country continue to be served. A key 

step in achieving this is requiring the 11 million undocumented immigrants who are already here and who want to earn legal status 

to come forward, pass background checks, learn English, and eventually apply for citizenship. But I do want to express our concern 
71 

to the Committee that the process may be too long and too costly 

for many who have been working and raising families in the U.S. 

Second, unlike previous immigration reforms, this bill would create a 21st century legal immigration system in tended to be responsive to U.S. labor needs in a regulated, orderly fashion while breaking precedent by providing labor rights and protections. This is the 

best way to prevent the Nation from having yet another debate in 

the future about legalizing another group of workers. It is imperative that our legal immigration system keep pace with our economy 

and our changing society. 

And while the legislation thoughtfully addresses worker-based 

legal immigration, it does send mixed messages on family immigration. 

Make no mistake, our country has had a historic commitment to 

family unity because it is good for society and for our economy. We 

are glad that the bipartisan legislation seeks to reduce the unnecessarily long backlog for certain family visas. But eliminating visas 

for groups such as siblings and adult children fails to take into account that families today come in all shapes and sizes and includes 

siblings pooling their resources together to buy a home or to start 

a business, adult children taking care of their elderly parents, and 

also binational same-sex families. 

Finally, Americans hold immigrant integration in high regard 

and want to see immigrants pledge allegiance to our country. So 

we are very pleased to see that the bipartisan legislation also includes many measures and the resources necessary to achieve the 

successful integration of immigrants into American society. Immigrants want to learn English and make greater contributions to the 

Nation. I know it because my organization and our hundreds of affiliates help immigrants on this journey every day. 

In conclusion, I would like to acknowledge that compromises will 

have to be made by all parties. Significant concessions have already been made in this legislation, many that cut deeply into the 

interests of immigrants and Hispanics. If each of us was looking at 

only individual pieces of this bill from our own parochial perspective, there is much we would be forced to oppose. But just as we 

are asking others to set aside some of their priorities to advance 

our Nation’s interests, we recognize that all of us have to accept 

some compromise to advance our common goal of producing a bill 

that reflects a strong, effective, and sustainable immigration policy 

for the 21st century. 

A bright line will soon emerge between those who seek to preserve the status quo, which serves no one except those who profit 

from a broken immigration system, and those who are working in 

good faith to reach compromise and deliver a solution the country 

desperately needs. 

Put in stark terms, those who oppose progress are not just advocates for doing nothing. In essence, they are advocates for worse 

than nothing. Opponents of progress would ignore the growing gap 

between the needs of a 21st century society and a legal immigration system that has remained unchanged for nearly three decades. 

They would be opposing a level playing field for American workers 

and the accelerated integration of immigrants. In short, many offer 
72 

the same feeble failed policies that may advance their political interests but do not produce real results. 

This bright line will be seared into the minds of Latino voters, 

those voters who created the game-changing moment for this debate in November and the additional 14.4 million U.S.-born and 

-raised prospective Hispanic voters that will join the electorate between now and 2028. 

Our community will be engaged and watching closely to ensure 

that the legalization process is real, enforcement is accountable, 

and families and workers are protected. 

Thank you. 

[The prepared statement of Ms. Murguı ́a appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you, Ms. Murguı ́a, and thank you 

also for the important role that the National Council of La Raza 

has played in this discussion and will continue to play. 

Ms. MURGUI ́A. Thank you. 

Senator WHITEHOUSE. Before we get to Pastor Fleming, Ranking 

Member Grassley has a statement from the National Association of 

Former Border Patrol Officers. That will, without objection, be 

placed into the record. 

[The prepared statement of the National Association of Former 

Border Patrol Officers appears as a submission for the record.] 

Senator WHITEHOUSE. Now we will hear from Pastor Fleming. 

Please proceed, sir. 

STATEMENT OF DAVID FLEMING, SENIOR PASTOR, 

CHAMPION FOREST BAPTIST CHURCH, HOUSTON, TEXAS 

Pastor FLEMING. Thank you, and good afternoon, Senators, and 

thank you so much for the privilege and the opportunity to participate in this process as you work towards a bipartisan solution to 

our Nation’s current immigration crisis. 

As a pastor, I got involved in this debate simply as a result of 

my everyday ministry responsibilities. My personal encounters 

with hurting people have just compelled me to work towards improving a system that just is not working. It is not working for a 

young father with children back home, for a widow and mother of 

two teenagers, for a family that has done everything to come legally but is caught in a system that is painfully slow, inefficient, 

and often simply unfair. 

I have spoken to law enforcement officials, immigration attorneys, and government officials at every level. Everyone agrees as 

to the magnitude of this problem. 

But when it comes to proposed solutions, the ones we have heard 

typically have come from one of two opposing poles. From the one 

pole we have heard what sounds like a call for open borders and 

amnesty with little regard for the rule of law or our national security. From the other pole, we have heard a call for closed borders 

and deportation, which seems to have too little regard for human 

dignity and potentially comes at the expense of our national identity. We are a nation of immigrants. With such strong and opposing 

forces, we have heard plenty of rhetoric but seen no workable solutions until perhaps now. 
73 

In the midst of this confusion, I as a pastor have wondered what 

God has to say. I read in Romans 13, ‘‘Let every person be subject 

to the governing authorities. For there is no authority except from 

God, and those that exist have been instituted by God. Therefore 

whoever resists the authorities resists what God has appointed, 

and those who resist will incur judgment.’’ God is a God of order, 

and our Nation must be a Nation of law, and our laws must be 

just. 

But I also read in Leviticus 19, ‘‘When a stranger sojourns with 

you in your land, you shall not do him wrong. You shall treat the 

stranger who sojourns with you as the native among you, and you 

shall love him as yourself, for you were strangers in the land of 

Egypt.’’ God expects us to treat all people with compassion, each 

person having been created in His image. 

So which is it, Senator? The law and justice or mercy and compassion? And the answer is: Yes. There is balance in the tension 

between the two. We ought to be guided in all that we do by a relentless commitment to protect the inherent value and the dignity 

of human life, and to alleviate human suffering whenever and 

wherever we can. 

Senators, there is more at the heart of this debate than millions 

of undocumented immigrants. There are millions of real people 

with names and faces. I can assure you that each one matters to 

God, and each one should matter to us. So we need a legal system 

and public policies that are certainly just but that are also humane. 

I recognize I am not in the majority perhaps at time and maybe 

not everyone shares my convictions, but I want you to know there 

are a great many Americans who do. I am a local church pastor, 

but I have the privilege to stand with thousands of pastors from 

across the country who represent a growing tide of support for a 

bipartisan effort and a comprehensive approach to immigration reform. 

In my city, the Houston Area Pastors Council wrote a Declaration on Immigration Reform, and more than 1,000 pastors representing the great diversity of Houston and of Texas signed on. 

The Southern Baptist Convention, of which I am a part, with 

45,000 churches and more than 16 million members, passed a resolution in 2011 calling for just and humane public policy with regard to immigration. And most recently a national coalition of 

Christian denominations and organizations has been formed. It is 

known as the Evangelical Immigration Table, with thousands of 

Christian leaders representing millions of members. It is calling for 

bipartisan comprehensive reform that: respects the God-given dignity of every person; that protects the unity of the immediate family; that respects the rule of law; guarantees secure national borders; ensures fairness to taxpayers; establishes a path toward legal 

status and/or citizenship for those who qualify and who wish to become permanent residents. 

That is why I am grateful to see the introduction of this legislation. While this bill may not be perfect yet, it appears to be an excellent starting point for a bipartisan discussion that moves the debate forward toward real solutions that work for real people. 
74 

In a passionate debate with opposing views, some of us are called 

to speak for those who cannot speak for themselves. In the end I 

will stand before the Lord and give an account, and it will be clear 

whether or not I cared about what God cares about and whether 

I did what I was supposed to do, not because it was popular with 

men, but because it was right with God. 

And so I am calling on you, our representatives and our leaders, 

who no doubt share my sense of calling and responsibility. Let us 

not waste this opportunity to do the right thing under God and for 

the sake of people created in his image. And we want you to know 

that we are supporting you, we are praying for you, and we are 

with you as you work through this bipartisan and comprehensive 

reform. 

Thank you. 

[The prepared statement of Pastor Fleming appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you, Pastor. 

Next is Mr. Krikorian, the executive director of the Center for 

Immigration Studies. Please proceed. 

STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES, WASHINGTON, DC 

Mr. KRIKORIAN. Thank you, Senator. I will be talking about the 

legalization parts of the bill, but since Senator Schumer had taken 

my name in vain, as it were, at the beginning of the hearing, I 

wanted to respond very briefly to a comment he had made. 

The Boston bombing is not an excuse for delay of considering this 

immigration bill, but it is an illustration of certain problems that 

exist with our immigration system. And I will just to touch on a 

few of them before I move on to the main body of my comments. 

Why were the Tsarnaevs given visas to come to the United 

States to begin with? This is a question nobody seems to have answered. 

Why were they given asylum since they had passports from 

Kyrgyzstan? And especially why were they given asylum since the 

parents have moved back to Russia, the country supposedly they 

were fleeing and wanted asylum from? 

What does it say about the automated background checks that 

this bill would subject 11 million illegal immigrants to that in-person interviews by FBI agents of Tamerlan Tsarnaev resulted in no 

action even though it was actually based on concerns about terrorism. 

And what does it say about our broken patriotic assimilation system that legal, relatively privileged immigrant young people became so alienated that they engaged in this kind of mass murder 

against Americans. 

Let me move to the legalization part of this bill, S. 744. 

There may actually be circumstances under which amnesty for 

certain illegal aliens can make sense. The question is: Do you do 

it before or after the problems that created the large illegal population have been solved? 

Unfortunately, S. 744 puts the legalization of the illegal population before the completion of the necessary tools to avoid the creation of a new illegal alien population in the future. 
75 

What is more, the legalization provisions of the bill make widespread fraud very likely if this, in fact, goes into effect. 

Much has been made of the triggers that would permit the registered provisional immigrants to receive permanent residence. And 

those triggers are clearly a step in the right direction—improvements in exit tracking, employment authorization, border security. 

The problem is, with regard to legalization, those triggers are essentially irrelevant, because the only trigger that matters to the legalization is the presentation of two border security plans by 

Homeland Security. And, frankly, given the number of similar 

plans that have passed before this body and elsewhere, it is not 

much of a hurdle. 

Unfortunately, it is the only hurdle that matters because receipt 

of this RPI status is the amnesty. That is to say, it transforms the 

illegal immigrant into a person who is lawfully admitted into the 

United States. The rest of it is an upgrade from one legal status 

to another legal status, not the amnesty itself. 

Essentially, the other triggers would trigger an upgrade from 

‘‘Green Card Lite,’’ if you will, which is to say work authorization, 

Social Security account, driver’s license, travel papers, et cetera, 

Green Card Lite to Green Card Premium, which is the regular 

green card. 

And, unfortunately, as far as the incentives, the political and bureaucratic incentives, to get those benchmarks enforced, that upgrade does not really create much of an incentive to get things 

done. Once illegal immigrants are out of the shadows and no longer 

undocumented, the urgency on the part of amnesty supporters to 

push the completion of those security measures essentially evaporates. 

What is more, many of those who receive this RPI amnesty are 

likely to do so frequently. In reading the requirements in Section 

2101 here in the bill, it harkens back to the Immigration Reform 

and Control Act, which the New York Times rightly called ‘‘one of 

the most extensive immigration frauds ever perpetrated against 

the United States Government.’’ 

Just to touch on a few of the things that would result in such 

fraud, IRCA created a crush of applications, according to the Department of Justice Inspector General. That was only 3 million people. What kind of crush will we see with 3 or 4 times that many 

applicants. 

The bill does not require interviews of amnesty applicants, and, 

in fact, we have seen with the DACA amnesty that is going on now 

very few people are interviewed, 99.5 percent of applicants have 

been approved so far. 

The bill permits affidavits by non-relatives regarding work or 

education history. Fraudulent affidavits were extremely widespread 

in IRCA and created much of the fraud that we dealt with in that 

program. 

The current bill also includes a confidentiality clause, essentially 

a sanctuary provision, prohibiting any information to be used 

against the applicant. 

Likewise, it does not require the deportation of any failed applicant, essentially creating a heads-I-win, tails-you-lose situation 
76 

where the applicant can simply apply and know he can never be 

deported. 

And just to end, the consequences of this kind of fraud is very 

serious. We do not have to speculate. We saw from last time 

Mahmoud the Red Abouhalima, an Egyptian illegal immigrant 

driving a cab in New York, fraudulently received amnesty as a 

farm worker, and that legal status permitted him to travel to Afghanistan, get his terrorist training, and help lead the first World 

Trade Center attack. 

So I would encourage this panel to look hard at these legalization 

provisions and see if there is any way to salvage them and to avoid 

the kind of problems that we are almost certain to get. 

Thank you. 

[The prepared statement of Mr. Krikorian appears as a submission for the record.] 

Chairman LEAHY [presiding]. Thank you, Mr. Krikorian. I do not 

want to take from the time of the others. 

The next witness is Laura Lichter, who currently serves as the 

president of the American Immigration Lawyers Association based 

in Denver, Colorado. 

Ms. Lichter, thank you very much, and thank you, Mr. 

Krikorian. Please go ahead. 

STATEMENT OF LAURA L. LICHTER, ESQ., PRESIDENT, 

AMERICAN IMMIGRATION LAWYERS ASSOCIATION, DENVER, 

COLORADO 

Ms. LICHTER. Thank you, Mr. Chairman, and thank you for the 

opportunity to address you today on this exceedingly important and 

historic moment. 

I will not use up my time to argue with Mr. Krikorian about his 

conclusions on these things, but I can tell you that the mess we 

have today in our immigration laws, frankly, sirs and madam, is 

the mess that we designed. We have been living with a failed experiment now for almost 20 years, and I would suggest that if your 

head hurts from banging your head against the wall, the solution 

is not to bang your head harder. 

The architecture of this bill shows great creativity, great courage, 

and I would argue that the Gang of Eight has shown great perseverance in reaching a very good bipartisan architecture. Our concerns at this point, however, are that we not lose sight of some 

very core values that aid in our communities. 

Families really are the cornerstone of our communities, and it is 

a tragic irony that our current system places road blocks in the 

face of the people that have the most significant and deepest ties 

to our communities. Family applications are plagued by long 

delays. I just pulled up the visa bulletin this morning to see what 

those delays were, and the adult child of a U.S. citizen would wait 

over 7 years to even begin the process. If that individual is from 

Mexico, we are talking over two decades. 

If we start talking about categories which are now apparently 

under siege, the Family Third Preference for married children and 

siblings of U.S. citizens, those backlogs go back decades as well. 

It should be clear that we should not recognize a false dichotomy 

between business immigration and family-based immigration. They 
77 

interrelate. Many of our most important innovators and entrepreneurs actually came through the family system, not merely the 

business system. Less family-friendly policies may actually dissuade highly skilled immigrants who have families from choosing 

to immigrate to the United States, and especially in the case of individuals who are members of the LGBT community, it may force 

us to lose our own citizens who will immigrate to other countries 

in order to keep their families intact. 

The best thing I can do is give you examples to tell you in my 

experience how this actually impacts people. We see families torn 

apart. We see people without options. We see adult children of people who could be sponsored who are left out, those brothers and sisters, folks who might have no ability to immigrate on their own, 

even through the proposed merit-based system. 

We can see that for LGBT couples, for example, an individual 

who is married in the United States but does not have another way 

to stay in the country, that that individual is at a road block and 

cannot immigrate under the current system or even under the proposals. 

We do want to thank the Gang of Eight and especially Senator 

Leahy for your leadership in the asylum arena. Streamlining this 

process, providing more due process, increases efficiencies, and getting rid of the arbitrary 1-year filing deadline for asylum cases will 

increase the fairness of this process, which is at the key of our vision in the world as the upholders of freedom and fairness. 

Immigration court has been described as something on the corner 

of byzantine and absurd. It is death penalty consequences with 

traffic court rules. We see backlogs that remain well over 300,000 

cases despite significant efforts by ICE to prioritize the cases that 

are in removal proceedings. 

We are encouraged by the effort to include more counsel for people going through proceedings, especially individuals who are detained. An expansion of the legal orientation program provides a 

win-win-win-win impact for the courts, for the DHS, for the justice 

system, and for the immigrants themselves. 

We need to ensure that we do not resort to draconian bright-line 

limits. They simply do not work. They do not deter behavior, and 

they do not accommodate the need for humanitarian consideration 

of cases on a case-by-case basis. 

Immigration detention also needs a more significant eye towards 

it. Right now, we have seen an incredible increase in spending on 

detention and an increase in the number of beds, and I would like 

to see that we have more alternatives to detention as we go forward under the new bill. 

I would like to make one brief comment as to the concern for 

fraud going forward under the legalization program. What we have 

seen under deferred action actually is a very important effort by 

the Government, and kudos to USCIS for actually presenting incredibly useful information on its website and administering the 

program in an intelligent way so that the public cannot be victimized. 

There has been an incredible partnership by the immigration 

bar, by community-based organizations, and others to make sure 

good, solid information gets out there. And good, solid information 
78 

and representation are going to be the keys to making sure that 

a program does not suffer from fraud or any other abuses. 

Thank you. 

[The prepared statement of Ms. Lichter appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Ms. Lichter. 

Our next with, Kris Kobach, is the Kansas Secretary of State. We 

know him on this Committee; from 2001 to 2003 he was counsel 

to U.S. Attorney General John Ashcroft. 

Please go ahead, sir. 

STATEMENT OF HON. KRIS W. KOBACH, SECRETARY 

OF STATE, STATE OF KANSAS, TOPEKA, KANSAS 

Mr. KOBACH. Thank you, Mr. Chairman. 

This bill has been portrayed as a balance between an amnesty 

or legalization and enforcement, and in my testimony I want to 

stress to you that it is not a balanced bill. In my written this I offer 

nine reasons why this bill is problematic and not at all balanced. 

I want to just stress the most important six here—three problems 

with the amnesty provisions and three problems with the enforcement provisions. 

The first one with the amnesty provision is that the background 

checks in this bill are insufficient to prevent a terrorist from getting the amnesty. The biggest problem is this: The bill has no requirement that you provide a Government-issued document that 

says you are who you say you are. So what that does is it allows 

the terrorist to create a new fictitious identity, invent an unusual 

name—Rumpelstiltskin, for instance. He gets an identity card from 

the Government under this bill, verifying and giving credibility to 

that new identity. He also gets legal status, which allows him to 

travel abroad under that new identity. 

Now, the Tamerlan Tsarnaev example demonstrates how important an alien’s ability to have freedom of movement and to travel 

abroad for terrorist connections and terrorist training is and how 

dangerous it can be for Americans. 

Now, it should be pointed out that even if a terrorist attempts 

to use his real name to gain the amnesty, the background check 

in most cases is unlikely to stop him. Again, the Tamerlan 

Tsarnaev example illustrates the point. As was mentioned by Mr. 

Krikorian, most of these aliens are not going to have personal 

interviews. Tsarnaev had at least two background checks, and he 

had a personal interview with the FBI, yet they still were unable 

to conclude that he might have terrorist intentions and should be 

barred from the country. And that was far more scrutiny than 

these aliens are going to have. 

Under the last amnesty in 1986, we had multiple terrorists who 

were amnestied out of 2.7 million amnesties granted. This is much 

larger. It is simply a mathematical likelihood that it will happen 

again on a greater scale. 

The second problem, absconders and people who have already 

been deported are legalized under this amnesty. I am not aware of 

any amnesty in our country’s history where we have reached back 

and grabbed people who have already been removed from the 

United States and brought them back in to gain the amnesty, and 
79 

perhaps even worse, absconders are made eligible for the amnesty. 

Now, for those of you who do not remember the term ‘‘absconder,’’ 

it is someone who has already been removed by a immigration 

court, had his day in court, but he becomes a fugitive and remains 

in the United States and disobeys the court order. This amnesty allows the absconders to remain. What kind of perverse incentive 

will that be going forward? Our immigration courts will be basically sending a meaningless message: ‘‘We are ordering you to be 

removed from the United States, but if you hang out and you can 

remain a fugitive until the next amnesty, you will be able to stay 

in the United States.’’ 

The third problem with the amnesty is it legalizes dangerous 

aliens who received deferred action under DACA. As you know, the 

DACA directive was enacted by the—not even enacted—proclaimed 

by the Secretary of Homeland Security in June of 2012. It is now 

in effect. Large numbers of people have gotten it. It violates Federal law at 8 U.S.C. 1225, certain aliens must be placed into removal proceedings. That is what this Congress said in 1996. The 

DACA directive says, no, you do not have to put them in removal 

proceedings. 

There was a hearing in April, on April 8th in Dallas in Federal 

district court. We learned at that hearing that, under the DACA directive, multiple dangerous aliens who had been arrested but not 

yet convicted of serious crimes had been released back onto the 

streets—one for assault on a Federal officer, sexual assault on a 

minor, trafficking in cocaine. Those dangerous aliens will be eligible for the amnesty under this bill. 

Now, three quick problems why the enforcement provisions are 

not serious. 

First, the 90-percent threshold is meaningless. This bill promises 

an effectiveness rate of 90 percent. But it is 90 percent of the individuals who attempt to come into the country, that they will be 

stopped or turned back. But there is no way of knowing the denominator. We have never had the ability to calculate the number of 

people who evade border security enforcement, and we probably 

never will. 

The second problem with this point is that it does not measure 

90 percent over the whole border. It only does so at supposedly the 

high-risk areas where the apprehensions are over 30,000. As we 

know, over the pas few decades, every time the Border Patrol does 

something different here, the smugglers move their networks to a 

different part of the border. So DHS may report, hey, we have got 

90-percent success here, however they are measuring it, but, in 

fact, the smugglers have long abandoned that part of the border 

and they have gone to a different part of the border. 

And, finally, third, DHS, as was recently revealed in that same 

April hearing, we now know has been cooking the books as far as 

its removal numbers. They were claiming a record number of removals of 410,000 in fiscal year 2012. We now know that that number is overreported, inflated by about 86,000. If they are not fairly 

calculating their numbers now, why should we expect them to fairly calculate the 90-percent figure? 

The second problem with the enforcement provision: It hobbles 

State enforcement efforts. This bill has a preemption clause in it 
80 

that says State efforts to discourage the employment of unauthorized aliens in the workplace will be preempted. Many of those State 

efforts have been the only enforcement in the workplace during the 

last 4 years to speak of. Most notably in Arizona, the Legal Arizona 

Workers Act was implemented at the beginning of 2008, and in 

those first 3 years of implementation, Arizona saw a drop of 36 percent in the illegal alien population compared to a 1-percent drop 

nationwide. Those State efforts will be gutted if this bill becomes 

law. Indeed, there could be a vacuum, because while this new electronic verification system is being created, States will be prevented 

from doing absolutely at. That is an important flaw in the bill. 

And then the final flaw I would mention is that the bill scraps 

the E–Verify system. We have over 400,000 employers using 

E–Verify. Four States mandate it. Many other States require it for 

businesses who are receiving Government contracts. But, 

inexplicably, this bill scraps that proven system and replaces it 

with something else, some other electronic verification system, even 

though E–Verify gets over 98 percent approval ratings among employers who use it. One has to wonder why they are doing this. 

Why is the bill written this way? The only explanation I can see 

is delay. Because of the prolonged phase-in periods and the fact 

that E–Verify regs probably do not even have to be in place until 

5 years from enactment, you are talking about a 9-year period at 

the minimum before this thing is likely to be in effect, the new 

E–Verify, the new electronic verification system is likely to be in 

effect. 

In short, this bill does not seem to be a good faith effort to bring 

enforcement to the workplace. If it were serious, it would simply 

say make E–Verify mandatory now, give large employers 1 year, 

give other employers 2 or 3 years, like the States have done very 

successfully. 

Thank you. 

[The prepared statement of Mr. Kobach appears as a submission 

for the record.] 

Chairman LEAHY. Well, I am sorry you feel that the four Republican Senators and four Democratic Senators did not work in good 

faith. I know all eight of them very well. They have met with me. 

I think they worked very, very hard to work in good faith. 

Ms. Pacheco, in 2010, you were part of a courageous march to 

Washington pursuing your dream. That made me think of the civil 

rights marches of the 1950s and 1960s, and I am old enough to actually remember them. Since then, you have inspired an entire 

generation of young people who were brought to the United States 

through no fault of their own. You taught them to come out of the 

shadows. You do this even though you risk being taken out of the 

only country you have ever known as home. 

What inspires you to do that? What inspires you to step forward 

that way? 

Ms. PACHECO. Thank you, Senator Leahy, for your question. And 

it is simply put in one word: love. The love that I have for this 

country, the love that I have for my family, for the community that 

I grew up in, and the love that I have for myself, because I do have 

a dream. I have three degrees. I have a bachelor’s in special education, and I want to be able to open a music therapy center to 
81 

work with people with Down’s syndrome, autism, and mental disabilities. And that is what drives me, and I think what drives a lot 

of undocumented young people who are in this country, who are 

seeking an opportunity for themselves and for their family. And in 

that 1,500-mile walk, all we did was talk to people, everyday people, and after two seconds of telling our stories and sharing with 

them what was really happening with our immigration system, we 

were able to change a lot of hearts and minds. 

Chairman LEAHY. Thank you. 

Ms. Murguı ́a—I am so used to calling you by your first name 

when we see each other, but you are the president of the largest 

Hispanic civil rights organization in the United States, so I think 

that carries a lot of weight with Hispanics in America. 

As you know, I have supported immigration reform for years and 

years. Even though that is not a major issue in Vermont, I think 

it is a major moral issue for this country. But I worry about a proposal that contains false promises. I have always wanted something straightforward and fair and achievable. 

Is the legalization proposal in this bill, drafted by the eight Senators, do you consider it straightforward, fair, and achievable? 

Ms. MURGUI ́A. I do believe that there was a good faith effort to 

modernize our legalization program, and I think that is a really important step, because I think what we failed to do in 1986—and it 

was a failure to acknowledge—was that, on the one hand, we did 

not create the flexibility, the foresightedness, to look at how we 

might be able to make adjustments in terms of our economy and 

the needs of our country and its workforce. This program seems to 

build that in, and we want to make sure that that is something 

that can be done. 

On the one hand, I think this also reduces the backlog for many 

who have been waiting a long time for family visas, and for us I 

think that is a really important step. 

On the other hand, we do have some concerns about the elimination of the program for siblings and adult children. I think that 

when you look at the bill as a whole and all the parts that it has, 

there is a lot to like and dislike, but overall I think right now this 

presents a framework that we can build upon as we move forward. 

So I am very encouraged by what I have seen. 

Chairman LEAHY. Well, thank you. 

Dr. Fleming, you currently lead a church in Texas, and I believe 

before that in Florida. You spoke about the moral imperative to reunite families and help millions of people, and I have referred to 

the moral aspects of it, and earlier I mentioned being the grandson 

of immigrants. My wife is the daughter of immigrants. And on the 

other side of my family, I am the great-grandson of immigrants. I 

remember my grandparents speaking of the morality of people coming to this country and being—they always insisted we work hard 

to be good citizens. 

What brought you to speak out publicly in this matter? You have 

a lot of issues as a pastor that you might speak out on. What 

brought you to speak out on this one? 

Pastor FLEMING. Well, thank you, Senator Leahy. In my remarks, as I mentioned, it is the human aspect for me, and it is the 

strong sense of God’s movement and working in this as it relates 
82 

to the humanity side. I am not a politician. I am not an attorney. 

I am certainly woefully unqualified to speak in terms of policy and 

how do we work out these details. But what I have a sense of calling for in this is just to keep reminding us that there is no solution 

at either pole or either extreme. We have got to come together to 

the middle of this thing, and we have got to keep the humanity of 

those involved very much in the front of our minds. 

I am excited to say there has been a rising middle voice in this 

debate, and I am excited to see that. We have made a lot of 

progress, and I am grateful that we are here talking about it today. 

I really feel something good is going to happen. 

Chairman LEAHY. My final question of Ms. Lichter: Do you think 

this will bring people out of the shadows and register? 

Ms. LICHTER. Absolutely. We see this on a daily basis. People 

want to know how do they pay their taxes, how do they join the 

military, how do they start a business. They want to be fully functioning members of their communities. 

Chairman LEAHY. Thank you. 

Senator Grassley. 

Senator GRASSLEY. My first question is to Mr. Krikorian. My understanding of the bill so far is that undocumented immigrants will 

get every opportunity to apply for legalization, and they will have 

more opportunities if this bill were to pass to appeal the decisions 

that the Homeland Security officials make. Would you discuss that 

part of the bill, please? 

Mr. KRIKORIAN. The bill permits the people who are in deportation proceedings to apply for the amnesty, people who have already 

been deported, at least who were deported over the past roughly 

year and a half, certain ones of them, to apply for the amnesty. If 

they are turned down initially because of some inadequate documents, they are allowed a second bite at the apple. 

So, you know, this—I do not mean to be flip about it, but this 

subheading—I mean, you know, this section could have subheaded, 

‘‘No illegal alien left behind.’’ I mean, the goal really seems to be 

to get amnesty for as many people as is physically possible. 

Senator GRASSLEY. Okay. Mr. Kobach, I am going to quote a section of the bill and then ask you to tell us what you think it means. 

On page 330 of the bill—and this is in the Legalization Title—it 

says, ‘‘The Secretary may exercise discretion to waive a ground of 

inadmissibility if the Secretary determines that such refusal of admission is against the public interest or would result in hardship 

to aliens, United States citizen or permanent resident parent, 

spouse or child.’’ 

Mr. KOBACH. Thank you, Senator GRASSLEY. That provision on 

page 330 of the bill I think is a huge loophole, and I do not think 

the DHS Secretary should have this immense discretion. And this 

is a massive increase over the discretion we see in current law. It 

radically expands current law, which allows waivers in cases of extreme hardship. This little change of language can have huge consequences. Now we are just down to hardship. 

It also expands the hardship to the alien’s parent as well. That 

is not part of current law. 

Now, two pages before that, on page 328, the same unprecedented discretion is also given to immigration judges in immigra-
83 

tion court proceedings, and they would have the authority to terminate those proceedings, again, on this very low threshold of hardship to a wide variety of people. 

Now, we should also note that the waiver can also be applied to 

people who have already been deported and are inadmissible. So, 

for example, a person who has been removed and perhaps has been 

convicted of some form of domestic violence or spousal abuse could 

come back in and try to claim eligibility under this waiver. 

So this is a loophole that might seem small enough, but it is actually very big. 

Senator GRASSLEY. Again, do people that apply for legalization, 

this means RPI status, and get denied have an opportunity to appeal the decision? And if so, what is that appeal process? What impact would it have on the Federal court system? 

Mr. KOBACH. Well, I think you are going to find—the answer is 

yes. As Mr. Krikorian also mentioned, they do have this right to 

appeal. And we already see the immigration courts, you know, 

overflowing with cases, and this is a constant complaint that the 

immigration courts—it is one that goes back all the way to the time 

when I was at the Justice Department over 10 years ago and we 

were trying to deal with the issue then. Now you are going to be 

sending all of the people who are denied this amnesty into the immigration court system, and you are going to be overloading it even 

further. And I think you are going to find that the system is—there 

is going to be a tendency now with this discretion for judges to look 

for easy outs to clear their docket. And I think the excuse for many 

immigration judges will be to go ahead and exercise discretion if 

anyone related to the alien within the defines of that family unit, 

as is in the bill, can say that they are suffering hardship. 

So I think the combination of overloading the system plus this 

wide discretion is going to be problematic. 

Senator GRASSLEY. Again, some may say this bill is a boon to immigration attorneys and that it creates more loopholes than it 

closes. Do you know of any specific provision that will only create 

loopholes down the road? 

Mr. KOBACH. There are a number that jump to mind. In the employment provision, it does not—the employment restrictions do not 

apply to ‘‘casual, sporadic, irregular, or intermittent’’ employees. 

Intermittent employees is clearly intended to refer to day labor, 

which is what a huge number of—a large percentage of illegal 

aliens perform right now. One could argue that because of the discretion in applying the word ‘‘intermittent,’’ that might even be applied to seasonal labor. So, again, that could be a huge loophole. 

There is also a loophole for employers who make a good faith attempt to comply with the verifying of employees, but that good 

faith attempt seems ill-placed here because E–Verify under the current system is so easy to comply with. It is not like people have 

a problem when they sign up on the Internet and then they run 

names through the E–Verify system. So one wonders what could 

possibly be a good faith failure. ‘‘I tried to look for the DHS 

website, and I could not find it’’? Is that good enough to be good 

faith? 
84 

There is also a clear and convincing evidence standard for employers who violate the provisions of this bill. That elevates the 

standard very high, unnecessarily high. 

So I think employers are, again, given lots of leeway. These are 

just a few of the loopholes, and I could go on. 

Senator GRASSLEY. My time is up. Just let me make a closing 

comment. And the use of waivers came up several times in my 

questioning here. 

I think, you know, we cannot blame the President if he has certain authority and he uses it. So I do not want to use the word 

‘‘abuse.’’ But I think we can say that this President has taken more 

advantage of opportunities that have been given to him under law. 

And when we consider the 1,693 delegations of authority to the 

President under the health care reform bill, I think that we ought 

to be very careful in this legislation, as important as it is that we 

have immigration reform, not to overdelegate authority and waivers and things like that. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. I will turn to Senator Klobuchar, 

but before I do, I would note that wherever we are as we approach 

10 of, I am going to pause for a couple minutes. The Senate—in 

fact, I preside at the opening of the Senate wearing my other hat 

as President Pro Tem, and it was decided that at 10 minutes of 

2:00 the Senate and the Committees would hold a moment of silence, and I will announce that as we are closer to 10 minutes of 

2:00. 

Senator Klobuchar, go ahead. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

With the last panel, I really focused on the economics of this bill 

and how important it was to our country’s economy to move forward on reform. And here I want to get out an issue that I think 

is equally important. I guess I will start with you, Ms. Murguı ́a, 

about the U-visa part of this bill. I am a former prosecutor, and 

I saw firsthand dozens of cases where immigrant women would be 

victims and then their perpetrator of either domestic violence but 

mostly rape, mostly young women, would then hold over them that 

they would be deported if they reported it to the police or if they 

allowed a prosecutor to go forward with the case. Sometimes they 

would report it, though they would have to because law enforcement knew about the case, but then they would try to get them to 

back down and change their story and other things like that based 

on legal threats. 

We tried really hard in the Violence Against Women Act. We did 

keep the U-visa program in there and extended it to also stalking 

victims, which was important. But we did not expand the number 

of U-visas. And in this bill, the Gang of Eight, realizing the importance that this tool has for law enforcement, did expand them. And 

so could you talk about why this is so important for law enforcement? And if you want to add anything, Ms. Lichter? 

Ms. MURGUI ́A. Thank you, Senator Klobuchar. Thanks for your 

leadership on the VAWA act. I know that was a huge victory for 

many of us and wanted to support that. But you are right, we have 

seen incidents that are higher than normal. In many of these communities, the stresses on these families are enormous, and yet we 
85 

have not had the assurances that these protections would be built 

in. And with this bill, we have seen a major effort to allow for more 

of those visas and allow for folks to come forward when they feel 

that they are at risk and to not violate their status. 

So this is a huge step forward for us, and we really are appreciative of the Gang of Eight and their thoughtfulness in that regard. 

Senator KLOBUCHAR. Thank you. 

Did you want to add anything, Ms. Lichter? 

Ms. LICHTER. Yes, and, again, thank you very much for your 

leadership on this. This is a critically important piece, frankly, of 

law enforcement because it means that immigrant victims of 

crimes can step forward and help prosecute their abusers, whether 

it is something, as you said, a rape or domestic violence or something even more heinous. 

The one thing that I think we need to see a little more attention 

to is the removal of the need to have a law enforcement certification. What we find is that the victim him- or herself ends up 

being sort of the victim of the political tenor of the particular area 

in which they were victimized, and that should not have any place 

in this. If a victim is courageous enough and brave enough to come 

forward and testify and assist in prosecution, then that should 

stand on its own. 

Senator KLOBUCHAR. So that is something you would like to see 

added? 

Ms. LICHTER. Yes, ma’am. 

Senator KLOBUCHAR. Ms. Lichter, another subject. Most of the 

focus we had with the last panel on visas and green cards was on 

engineering, science, and those types of technology visas and green 

cards. But as you know, the U.S. is also facing a daunting shortage 

of doctors. One of the things I have worked very hard on with this 

bill and want to improve is the funding for homegrown science, 

technology, engineering, and math degrees and getting more scholarships and getting the high schools and getting big money into 

this based on the fees that are being paid for these visas, which 

should temporarily help us bridge the gap. 

But one of the areas which I have seen in the rural parts of our 

State is the need for doctors, many of them trained in the U.S. but 

happen to be from other countries, to be able to work in rural and 

inner-city areas, underserved areas. In the last decade, my State 

alone has recruited over 200 doctors through the program called 

the Conrad State 30 program to our State. I reintroduced this bill, 

led the bill with Senators Heitkamp, Moran, and Collins, and this 

is also included, along with many other good things, in this Gang 

of Eight proposal. 

Could you talk about how important it is when you have a rural 

area and you do not—we had one hospital that almost was not 

going to be able to deliver babies anymore because they did not 

have a doctor that could perform a C-section. So especially in rural 

areas, this is very important. 

Ms. LICHTER. Thank you also again for your leadership on this 

area. This is another area of critical importance. We have a high 

number of medical graduates who are foreign born. They are willing and eager to take these jobs out in rural areas and in some un-
86 

derserved urban areas as well. And anything we can do through 

the immigration laws to assist them with that process really is 

going to inure to the benefit of our communities. 

Senator KLOBUCHAR. One last question. You mentioned going 

after fraud and abuse in your testimony in Government programs, 

how important that is, including in the immigration context, that 

DHS, the Department of Labor, and the Justice Department should 

use their auditing and prosecutorial authorities to combat the misuse of all visa programs and protect foreign workers from abuse, 

which in turn protects American workers. 

What does this bill do to improve the tools the Government has 

to prevent potential misuse of our visa programs? 

Ms. LICHTER. Well, my understanding is that there are numerous 

opportunities and numerous elements of this new bill that would 

allow us to combat abuse, and numerous mechanisms to, frankly, 

just investigate that abuse. I think at this point in time, under the 

law as we currently have, that is where I think things are a bit 

anemic. We need to have more process in there. 

I would caution, though, that that process needs to be fair, it 

needs to be balanced, and it needs to make sure that all sides are 

heard. 

Senator KLOBUCHAR. Very good. I appreciate that. I think people 

have to hear these parts of the bill as well as the important pathway to citizenship and other things. There are actually things that 

we are doing that make it more possible to enforce against fraud 

and other things that just are not in existing law. 

Thank you. 

Chairman LEAHY. I told Senator Sessions that I wished to interrupt his time if speaking, and we are now within a minute of the 

time. Just so everybody will understand who came in late, the Senate agreed by consent this afternoon when it came in that at this 

time we would observe a minute of silence in memory of the people, 

the police officer, and others who were killed and those who lost 

life and limb at the Patriots’ Day Boston Marathon. So I would ask 

those who wish to join, if you would please join me and stand for 

a moment of silence. 

[Moment of silence.] 

Chairman LEAHY. I thank you all. As one who lives in a State 

bordering Massachusetts and who has probably walked by the corner where the bombs went off dozens of times, I have a feeling that 

the expressions here and elsewhere in our Government will mean 

a lot to the people there. 

Senator Sessions. 

Senator SESSIONS. Thank you. And, of course, I assume we will 

at some point recognize those volunteer firefighters and all in 

Texas who responded to help their community and then—— 

Chairman LEAHY. I was going to leave that to Senator CORNYN. 

Senator SESSIONS. I know that we will be dealing with that. 

Well, I thought the first panel showed that we had problems with 

ag and low-skilled workers in that portion of the bill, and I think 

the second panel on high-skilled workers indicated there are problems there. And I think your testimony indicates we have problem 

here that need to be dealt with. 
87 

I just would ask Dr. Fleming, you know, I do not believe there 

is scriptural basis for the idea that a modern nation state cannot 

have a lawful system of immigration and is somehow prohibited 

from enforcing legitimate laws once they have been passed. I really 

feel strongly about that. 

I would just as a matter of pursuing it a little bit note that Nehemiah, when he came back to Judah, asked the king to give him letters to the governors beyond the—provinces beyond the river that 

‘‘I might pass through and come to Judah.’’ And then he was given 

that. And he said, ‘‘Then I came to the governors of the province 

beyond the river and gave them the king’s letters.’’ And Moses at 

Edam, he is in Kaddish, and he says, ‘‘We are in Kaddish, a city 

on the edge of your territory,’’ he says to the king of Edam. ‘‘Please 

let us pass through your land. We will not pass through a field or 

vineyard or drink water from a well. We will go along the king’s 

highway. We will not turn aside from the right hand or to the left 

until we have passed through your territory.’’ 

‘‘You shall not pass through,’’ he said. 

He asked again. He said, ‘‘You shall not pass through.’’ 

And so thus, Edam refused to give Israel passage through the 

territory, so Israel turned away from him and did not go through 

the territory. 

So I think this idea that somehow the love statements in Leviticus 19 is not the kind of thing that would indicate that nations 

should not have laws. And I think it is not healthy to lead little 

ones astray. Some people have been citing Scripture I think pretty 

loosely, it appears to me. 

And in Genesis, Abraham and Isaac, they had to negotiate treaties to sojourn in the territory of and obtain water rights from local 

kings. In Genesis, Joseph requested permission from Pharaoh for 

his family to sojourn in Egypt. And I would note that when the 

phrase ‘‘sojourn’’ is used, at least one scholar, Dr. Hoffmeier, a professor, says that ‘‘sojourn’’ means lawfully to be in that area. 

Do you have any—I will give you a chance to respond to that. 

Pastor FLEMING. Thank you, Senator Sessions, and I so appreciate you doing my job for me today. My members would like you 

to come and share with us sometime as well. 

I could not disagree at all with what you have said. I completely 

agree. That is why we have been asking for legislation that respects the rule of law, that secures our national borders. I wholeheartedly agree with that. And, by the way, Dr. Hoffmeier is a personal friend of mine, and so I appreciate you quoting him today as 

well. 

However, that being said, surely if our system currently as it is 

structured were true to those Scriptures that you just quoted, we 

would not have 11 million plus illegal or undocumented immigrants in our country with us today. So clearly we do not have the 

system you described. 

Senator SESSIONS. Well, I would just acknowledge that I have 

said since 2007 we need to deal compassionately with people who 

have been here a long time in this country. They all cannot be deported and should not attempt to be deported, and so we need to 

wrestle through all this and try to do it in a way that is appropriate. 
88 

You know, I believe Senator Rubio issued a facts check today 

that said that my statement about 30 million people being legalized 

is not accurate. Well, I first would ask all of those who support the 

bill, what is the number that will be legalized under this system? 

The amnesty itself would provide legalization for 11 million. The 

backlog is 4.5. It is an accelerated backlog elimination that would 

add 4.5. According to the Los Angeles Times, the future flow will 

be 50 percent above current future flow, at least, and that would 

be another 15 million. So over 10, that is around 30, and that does 

not include other chain migration, family migration. 

Mr. Krikorian, do you want to comment on that? 

Mr. KRIKORIAN. Well, I have not done the numbers, but it makes 

sense, and there is one thing—— 

Senator SESSIONS. Has anybody promoted numbers that they say 

it would—— 

Mr. KRIKORIAN. No. I mean, that is one of the issues I think people have in this, is to get actual numbers. But one thing I think 

you left out that would increase numbers also is that this legislation would make unlimited the immediate relatives of green card 

holders as the immediate relatives of U.S. citizens are now admitted. And so that would necessarily increase numbers as well. 

Senator SESSIONS. Millions, perhaps? 

Mr. KRIKORIAN. Over time, certainly. Absolutely. 

Senator SESSIONS. Mr. Kobach, thank you for your work in this 

area over time. I would just note that your comment about the 

hardship definition and some of the other definitions, all of us need 

to listen to that because if you get to the point where you do not 

have clarity in these cases and every case has got to be tried now 

over whether or not there is a hardship allegation, I do think, do 

you not, as a practical lawyer who knows how these systems work, 

that that could be terribly destabilizing to the whole legal system 

and the ability to proceed? 

My time is up, so if you—— 

Mr. KOBACH. I would simply say this: When you have a modifier 

like ‘‘extreme,’’ in most courts of law that tells the judge, okay, exercise your discretion very carefully here, as opposed to just the 

word ‘‘hardship,’’ which is a very open-ended term and it invites a 

lot of leeway, and I think it would be, you know, very problematic 

in our immigration court system. 

Chairman LEAHY. What I am going to do is yield now to Senator 

Durbin, who will take the gavel for a bit, but I would note, as much 

as I enjoy being Chairman of Judiciary I just want to amend the 

U.S. Code. I am not trying to amend Genesis or any other part of 

the Bible. 

Senator SESSIONS. You do not have that power. 

Chairman LEAHY. Well, I know. I do not even suggest I do. So 

I appreciate the Bible lesson, but we will stick to the U.S.—— 

Senator SESSIONS. Your brother is a priest. I know you understand where the ultimately authority lies. 

Chairman LEAHY. He does it a lot better than I do. 

Senator Durbin. 

Senator DURBIN [presiding]. Thank you very much, Mr. Chairman. 
89 

Gaby Pacheco, thank you for being here, and thanks for all you 

have done on behalf of the DREAMers. My staff has asked me to 

read the stories of some more DREAMers. I have done that 54 

times on the floor of the United States Senate. Each one of these 

stories is amazing in its own right. The accomplishments of these 

young people, the fact that they have known no other country in 

their lives and they want to be part of America’s future, they have 

extraordinary educational achievements that they managed to put 

together in American schools, schools that were open by American 

taxpayers. So their education has been supported by our country. 

And now with all the skill and talent, they are just asking us to 

give them a chance. 

So, Mr. Kobach, do you think the DREAMers deserve a chance 

to become legal in America? 

Mr. KOBACH. Well, that, of course, involves a lot of calculations 

because, you know, we are talking about—for example, in the 

DREAM Act part of the bill, we are talking about resources, places. 

For example, the DREAM Act portion of the bill, like many of the 

DREAM Act we have seen before Congress since 2001, says that 

the current provision against giving in-state tuition rates to illegal 

aliens has to be removed as part of the DREAM. And so we are 

talking about—— 

Senator DURBIN. So you want to get into—I just want to ask a 

matter of principle. Let us go down to basic values here. These 

young people were brought to America, Gaby at the age of 8. It was 

not exactly her decision to come from Ecuador. It was her family’s 

decision. And time and again, we are finding cases where children 

were brought in and the parents did not file the right papers or 

overstayed a visa, and the child knew nothing about it. 

So getting beyond immigration policy and the specifics, which we 

could talk about for a long time, as a basic matter of justice and 

fairness, do you believe that these young people should be penalized for the wrongdoing of their parents? 

Mr. KOBACH. And that is exactly where I was going to go to that 

biblical metaphor, that biblical verse. We are not supposed to punish the children for the sins of the parents. But, similarly, we probably should not reward the children for the sins of the parents. I 

would say treat the children neutrally without respect to the sins 

of the parents. And treating them neutrally, I think that would be 

the most just thing to do. 

Senator DURBIN. So how would you treat them neutrally? 

Mr. KOBACH. I would treat them neutrally by treating them the 

equivalent of other people who hold the same nationality. And so, 

therefore, do not allow them to jump ahead—which is what it is— 

jump ahead of the line by retaining their presence in the United 

States. Allow them to have the same opportunity. That might beinclude getting rid of the 10-year bar—I think that might be a reasonable proposal for DREAMers—and go back and get in line with 

the rest of their countrymen. 

Senator DURBIN. Well, you see, we debated that, and it is interesting, because eight Senators—four Democrats, four Republicans—and some pretty conservative Republicans, I might add— 

basically came to the opposite conclusion. They said what you are 

suggesting is punishment. What you are suggesting is that they 
90 

should be punished and put to the back of the line, and they have 

never done anything wrong. 

I have been at this for 12 years. I have met hundreds, maybe 

thousands of these young people. And to suggest that somehow 

they are guilty, culpable, should pay a price for what they did 

wrong, it just defies basic compassion, which I feel is part of this 

calculation, as well as justice. 

And I would say to you that this notion that we heard in the last 

campaign of self-deport—I think that might have been one of your 

points of view at that time—I mean, overlooking the obvious, 

America will be a stronger Nation when we acknowledge who we 

are. My mother was an immigrant to this country, brought here at 

the age of 2. She was a DREAMer of her generation. Her son is 

now a United States Senator. That is my story. That is my family’s 

story. That happens to be America’s story. She was given a chance 

to naturalize at the age of 23, and she did. And I have got her certificate sitting on the back of my desk. I am so proud of it. 

I think America is a little better because Ona Kutkin came over 

on a boat from Lithuania and managed to live here and make a 

life. And you know what? My story is not unique. And what happened to her, what was given to her, that opportunity, made this 

the country it is today. 

And I think many people who resist and fight back against immigration are ignoring who we are, our birthright as a nation. We 

went through 3 months of debate over this at least, 24 separate 

meetings, trying to figure out what was a just and fair way to resolve this. But this notion that immigrants are somehow negative 

or bad for America, that is not a fact at all. Never has been. 

And I think what we come up with is a fair approach. Can it be 

improved? Sure. I am open to improvement. But when it comes 

right down to Gaby Pacheco and hundreds of thousands just like 

her, Mr. Kobach, she has never known any other country. This is 

her home. 

Mr. KOBACH. May I briefly respond. 

Senator DURBIN. Of course. 

Mr. KOBACH. I do not think it is fair to characterize those of us 

who think we should restore the rule of law as saying we are resisting immigration. We are resisting illegal immigration, and we 

are resisting a system where we have essentially the national interest of the United States not being promoted in deciding who 

may enter the country, who may stay in the country, and the rules 

for coming in. 

And self-deportation is not some radical idea. It is simply the 

idea that people may comply with the law by their own choice. 

Whenever we have a law enforcement problem, self-deterrence is 

basically the typical solution law enforcement adopts; that is, you 

increase the penalties so that people start complying with the law. 

Self-deportation is something that Arizona has proven that if you 

ratchet up the penalties for violating the law, people will choose to 

leave. And it has been proven that they do that. 

Senator DURBIN. You were an elected official in Kansas, correct 

Mr. KOBACH. Correct. 

Senator DURBIN. So am I. I am an elected official in Illinois. And 

what we have basically said is ultimately the voters have the last 
91 

word. The voters had the last word on self-deportation on November 6th. So we are beyond that now. I mean, you can stick with 

that theory as long as you would like, but I think that what we 

are talking about now is whether America is a better country if we 

have an immigration system that brings 11 million people out of 

the shadows to register with this Government so we know who 

they are, where they are, do a criminal background check, or 

whether we leave them in the shadows. I think it is pretty clear. 

We are a better Nation when we have these 11 million people coming forward. 

And for these DREAMers, yes, they are being treated differently, 

given perhaps a better chance toward legalization. But it is still not 

an easy path. Most of them have spent their lives in hiding for fear 

of being deported. And they have achieved amazing things despite 

that. 

So we just come down to this with a different point of view, and 

I am going to stop now because—and I think I have the gavel if 

I go over and retrieve it. Are there other Members who would like 

to make a comment or statement? Who is next? Senator Cornyn, 

please. 

Senator CORNYN. Mr. Chairman, as long as you have the gavel, 

you can go as long as you want. 

I am going to ask Mr. Kobach and Mr. Krikorian to answer this 

question. Is there anything short of removal that you would consider not to be amnesty? 

Mr. KRIKORIAN. No. Amnesty means an illegal immigrant gets to 

stay. It is the definition we have always used as far as immigration 

goes, and there is actually an academic literature of comparative 

immigration amnesty—— 

Senator CORNYN. I understand what it means. 

Mr. KOBACH. Right. 

Senator CORNYN. How about you, Mr. Kobach? Anything short of 

removal is amnesty to you. 

Mr. KOBACH. I would argue that declining to remove an unlawfully present alien is actually amnesty plus, because you are giving, 

if you will—if you liken it to theft, you are giving the person what 

he has taken, namely, presence in the United States. He has taken 

it unlawfully. So you are not only declining to punish, you are allowing the person to have what he has taken. You could in theory 

define amnesty as not prosecuting, but this is more than just not 

prosecuting. This is not prosecuting and allowing the person to 

keep what he has unlawfully taken. 

Senator CORNYN. Some have said that the status quo represents 

de facto amnesty. Would you agree with that, Mr. Krikorian? 

Mr. KRIKORIAN. The status quo, to the degree that this administration, and, frankly, others, have deliberately chosen not to enforce the law, that is kind of a de facto amnesty, yes. But the only 

way to resolve that is not necessarily through statute but through 

Executive action. 

Senator CORNYN. Mr. Kobach. 

Mr. KOBACH. I would argue that we have more than just a de 

facto amnesty, which, you know, people use the term ‘‘de facto’’ to 

describe the situation of facts that we have on the ground. But we 

have more than a de facto amnesty. The DACA directive of June 
92 

15, 2012, is an Executive directive, an order, if you will, that declares that the current provisions of U.S. law, specifically 8 U.S.C. 

1225, will not be enforced and that the officers who are ordered by 

U.S. law to place certain aliens in removal proceedings shall disobey the law. 

So we have got more than a de facto amnesty. We have an executive branch that is ignoring the statutes that this Congress has 

written. 

Senator CORNYN. I would like to have Ms. Murguı ́a and Ms. 

Lichter respond to this. There are a number of people, including 

me, who believe that the representations that the border will be secure and that we will have an effective system of monitoring and 

addressing visa overstays has been adequately—there are those 

who say it has been adequately addressed in this bill. You know 

especially, Ms. Lichter, that since 1996 Congress has said that the 

executive branch should create a system of effectively monitoring 

visa overstays. Yet today, all these years later, 40 percent of illegal 

immigration does not come across the border. It is people coming 

legally and then overstaying. 

So I just ask you, Ms. Murguı ́a and Ms. Lichter, can you understand those who have seen this movie before and who have said 

these promises and assurances that this is the last time this will 

ever have to happen because we are going to institute a system of 

border security and enforcing the law against people who come in 

legally but overstay their visa, that has never come to pass? Can 

you appreciate the skepticism that people feel when they hear that 

again? Ms. Lichter, go ahead. 

Ms. LICHTER. Sure. Thank you, Senator. I think maybe the better 

way to look at this is to—— 

Senator CORNYN. Just look at it my way first, okay? 

[Laughter.] 

Senator CORNYN. Then you can look at it a better way. Can you 

understand the skepticism that—— 

Senator SESSIONS. Judge Cornyn. 

Senator CORNYN [continuing]. Of people who have heard these 

representations before only to find that they did not work as advertised? 

Ms. LICHTER. Right. And in order to avoid that sense of disenchantment with the new method going forward, I would like to 

draw your attention to what the real cause is of the overstay or the 

illegal entry. It is not for lack of enforcement. It is not for lack of 

a tracking system. It is for lack of a lawful path for people who 

wish to change from their nonimmigrant status to extend—— 

Senator CORNYN. You are kidding me. When you come in on a 

30-day visa, you do not know when your visa expires that it is time 

to go home? And you are saying it is for lack of a path to citizenship? 

Ms. LICHTER. I did not say it was for lack of a path to citizenship. I said it was for lack of legal immigration options. What happened—— 

Senator CORNYN. We have legal immigration options. You know 

better than most, Ms. Lichter. We naturalize as many as a million 

people a year in this country. We have a path for people to function 

through the legal system. But you are telling me that some people 
93 

have no option but to come in and overstay their visa and to melt 

into the great American landscape? 

Ms. LICHTER. We have had 3 hours of testimony as to why that 

path is inadequate and does not work. And I believe that the architecture that the Gang of Eight has come up with would do much 

to provide an intelligent, common-sense system. And if our focus 

instead shifts to making those pathways achievable for low-skilled 

workers, for high-skilled workers, for family, having fairness and 

due process in our laws, then I think the rest of it will actually fall 

into place. And I do honestly believe that because I believe I am 

the only person on this panel that actually practices in this, and 

I have been doing it for nearly two decades. I believe that because 

I see it every single day. 

Senator CORNYN. Ms. Murguı ́a, out of fairness to you, I asked a 

question. Would you care to respond? 

Ms. MURGUI ́A. Yes, I would, and I appreciate it. And I do understand the perspective, and I think, you know, the fact that you 

have someone representing viewpoints like mine and Gaby and 

Secretary Kobach down at the end, I think we know that there are 

different views on how to get to maybe perhaps the same end goal, 

which is making sure our borders are secure as well as making 

sure that we have a process that is regular, orderly, and fair to 

bring in new immigrants. I get that. And I really appreciate the 

fact that we need to give ourselves this space to have this discussion without pointing fingers about people’s motives. 

Let me say to you that I do believe that Senate bill 744 includes 

many painful lessons learned from the past. As you know, the 1986 

law had a number of issues, and for one thing, the legalization program did not cover everyone. So there remained a large undocumented population afterwards. 

Second, it did not include changes to legal immigration to address our future needs. Both of these omissions I think contributed 

to the growth of the undocumented population since that time. 

And I think, third, clearly its enforcement measures were not 

strong enough. But as I had noted in my written testimony, the enforcement system we now have in place is by several orders of magnitude much stronger than anything in place or even contemplated 

in the 1986 Act. 

By combining a legalization process that does lead to citizenship 

with a modern immigration system and real accountability for employers, we will have immigrants that are here legally, immigrants 

in the future will have real channels to enter through, and those 

hired in the future will be here legally. 

So our goals are the same, and that is to have an immigration 

system that works and reflects our values as a Nation of immigrants and as a Nation of laws. And my favorite section from the 

Bible is the Beatitudes, and I say, ‘‘Blessed are the peacemakers,’’ 

and I hope that we all can find peace in our common goals around 

immigration reform. 

Senator CORNYN. Mr. Chairman, may I ask for you to exercise 

your discretion and allow me to ask my constituent one question, 

please? 

I got so involved, Dr. Fleming, with these other witnesses, I 

meant to ask you a question. First of all, welcome. 
94 

Mr. Fleming. Thank you, Senator. 

Senator CORNYN. We are glad you are here. I know you care 

deeply about the people you come in contact with, and I believe 

that justice and fairness and compassion are not incompatible with 

the rule of law. I think it enhances our ability to demonstrate justice, fairness, and compassion when we operate within a legal 

framework, and that is certainly what we are trying to do here. At 

least I believe that. 

But there is a provision in this bill that would allow somebody 

who has committed multiple offenses of domestic violence, of drunk 

driving, and of child abuse. It draws the line at two. You can do 

it twice, and you are still eligible. But if you do it three times or 

commit a felony, you are not. Does that cause you any concern just 

in terms of the welfare of the victim of that drunk driving, the domestic violence, or child abuse? 

Mr. Fleming. Thank you, Senator CORNYN. It is a great question. 

I know a lot of people will be asking that very question. 

It does cause me some concern. What we have said throughout 

this conversation is that we are advocating for legal status and/or 

citizenship to those who qualify? I do not believe that everyone will 

qualify or should qualify. I feel woefully inadequate to say what the 

exact and express qualifications should be, but I do recognize that 

is a very important issue. 

I would be uncomfortable with multiple offenses and felonies. I 

think there has to be some line to where we are allowing those who 

are going to be productive, taxpaying, contributing to their community, great neighbors, and those who either by lack of attention or 

intention cause us harm. There has to be a line, surely. 

Senator CORNYN. Thank you very much. 

Mr. Fleming. Thank you. 

Senator DURBIN. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Before I turn to my questions, I just wanted to say that I am 

really glad to see you here, Dr. Fleming. A lot of Minnesotans I 

know who support immigration reform do so out of—see it as an 

issue of faith. 

At this point, Mr. Chairman, I would like to enter into the record 

a list of three dozen—actually three dozen plus one Minnesota faith 

groups that support immigration reform. If you look through this 

list, you will see Lutherans and Muslims and Catholics, Jews, Episcopalians, Methodists, you name it, unitarians. 

Senator DURBIN. Without objection. 

Senator FRANKEN. Thank you. 

[The list appears as a submission for the record.] 

Senator FRANKEN. A lot of Minnesotans do not just think that 

this is a smart thing to do. They think that this is the morally 

right thing to do. 

Ms. Lichter, the bill we are debating will make E–Verify mandatory for almost all employers within 5 years. Unfortunately, the 

last independent audit of the system revealed that it wrongly rejected a legal worker about one out of every 140 times. It does not 

sound that high, but it would not be acceptable for you, the credit 

card errors or starting your car. And I am worried about how this 

is going to affect Minnesota small businesses, a small business that 
95 

does not have a big HR department or the human resources person 

may be their accountant, may man the front desk and may be the 

spouse of the small business owner. 

In February, the American Immigration Lawyers Association 

issued a press release highlighting these problems and saying that 

any mandatory employment verification system should ‘‘protect the 

interests of small businesses and provide mechanisms to suspend 

the rollout of the employment verification program if patterns of errors develop.’’ 

Can you tell us why AILA made these recommendations and if 

AILA continues to stand by them? 

Ms. LICHTER. Thank you, Senator. Yes, we do continue to stand 

by those recommendations, and it is simply because, as you note, 

this is not an issue just for the employer. It is for the entire workforce. It could be an issue for that person who is applying for a job, 

and simply because the paperwork does not clear, you have just 

gone on to the next individual. And now that individual is out 

there hitting the streets looking for another job. 

It does sound like a small percentage, but we are talking about 

tends of thousands of people who are wrongly, tentatively nonconfirmed, been told that they are not eligible to go forward with employment. 

In terms of what the best metrics would be, I think we have a 

good chance here to look at slowing this down, potentially, to see 

if there are ways to evaluate whether we are having a high number 

of errors. There needs to be some method for reporting and correcting those. And let us not lose sight of the fact that this sort of 

additional regulation facing small business has a disproportionate 

effect. It literally costs a small business twice or nearly three times 

as much as it does a larger corporation to institute E–Verify and 

go through these checks. 

Senator FRANKEN. Thank you. 

Ms. Murguı ́a, in 2007, the National Council of La Raza released 

a powerful study on the impact of immigration enforcement action 

on children. Your study revealed that immigration raids often left 

children abandoned without anyone to care for them. Let me quote 

the study’s description of the aftermath of two raids. 

‘‘In one case, a youth spent several days alone because both parents were arrested in the raid. In one household, three adolescents 

were left to fend for themselves after both parents were detained. 

Neighbors provided occasional supervision. People only found out 

about those cases because the youths subsequently showed up at 

food banks to ask for assistance. Another adolescent spent months 

in the care of a pastor of a local church where his parents worshipped.’’ 

There have been cases like this all across the country. After a 

2006 raid in Worthington, Minnesota, a second grader came home 

from school to find his mother and father missing and his 2-yearold brother alone. For the next week, this child stayed home from 

school to take care of his brother. 

After a 2008 raid in Postville, Iowa, a local newspaper reported 

that ‘‘children went as long as 72 hours without seeing their parents, not knowing or understanding where they were.’’ 
96 

Thankfully the days of massive immigration raids are over, but 

in the past 2 years, over 200,000 parents of citizen children were 

deported. I have a bill, Ms. Murguı ́a, that I plan to offer as an 

amendment to the immigration bill that we are now debating. It 

will institute some basic humanitarian protections for children during immigration enforcement actions and during the detention of 

their parents. 

Ms. Murguı ́a, do you think we need to do more to protect our 

children in the course of immigration enforcement actions? 

Ms. MURGUI ́A. I so, and I appreciate you highlighting that report, 

which I think was eye-opening for many people because I think 

when you hear about the impact of these deportations and as a result of our broken immigration system, we are not talking about individuals, we are not even talking about just about families. We 

are talking about communities that really are devastated by this 

broken system. 

But the fact that I could not even articulate for you the pain and 

the suffering that has occurred across this country as a result of 

those raids and that continues to exist as long as we have these 

kinds of deportations in place is really for me not consistent with 

the values that we have as Americans in this country. There is a 

better way for us to do it. This bill, this compromise, offers us a 

path to get to that kind of a more rational and sane and humane 

resolution on this. So I appreciate you highlighting that there is 

real pain being inflicted, and these are not just statistics that we 

are talking about. There are families that have been devastated, 

communities that have been devastated, and to their credit, many 

people in the faith-based community across the board have stepped 

up to fill in where we ought to understand that there are collateral 

costs that are to be paid in this. 

Senator FRANKEN. Thank you. Thank you so much to all of you. 

Mr. Chairman, thank you. 

Senator DURBIN. Senator LEE. Senator LEE. Thank you, Mr. Chairman, and thanks to each of 

you witnesses for joining us today. 

As we started this discussion, I was reminded of the words of 

Stephen Covey, a prominent Utahan and author of ‘‘The Seven 

Habits of Highly Effective People,’’ who used to tell people to think, 

‘‘Win-win.’’ That was followed up on by a guy named Michael Scott, 

a character on a TV sitcom called ‘‘The Office,’’ who told his employees to think, ‘‘Win-win-win.’’ So I want to thank Ms. Lichter for 

telling us to think, ‘‘Win-win-win-win,’’ which sounds even better, 

and I hope we can get to that point, and I think that is really the 

point of this discussion, how we can find a way to make a difficult 

situation better. And I hope that through this legislation or some 

modified form of it, we can get to a point where we improve our 

legal immigration system. We are Nation of immigrants. We always have been. I hope and pray that we always will be. 

For that to work effectively, we have got to have an effective 

front door through which immigrants to this country can be welcomed into this country under the terms of our laws. 

There is a lot in this bill to be praised in this regard. There are 

some things that concern me, and I would like to discuss a couple 

of those with Mr. Kobach for a moment. 
97 

A couple of things that you mentioned have got my attention, one 

of them dealing with your assertion that the Department of Homeland Security may have been shaping some of the removal numbers. Can you speak more of the suspect activity of sort of changing—I think you said they are changing the denominator such that 

the overall ratio can be manipulated. 

Mr. KOBACH. Two points. One is that you are kind of putting 

them in an impossible position if you say calculate 90 percent—if 

you are at 90-percent success, because you can never know the denominator of people that we missed because, almost by definition, 

we missed them and, therefore, we probably did not have surveillance of them. So it is almost impossible. 

And so my second point to that was, well, if you are going to 

force them to come up with this number, this effectiveness ratio, 

then should we trust them to do so? And I would say based on the 

reporting of the last 2 years, there is serious reason to consider 

perhaps not, and that is, we have been told repeatedly in the last 

2 years that fiscal year 2012 saw a record number, 410,000 approximately, of removals from the United States. Well, it turns out 

that about 86,000 of that number we have learned because of evidence disclosed in a Federal judicial proceeding, 86,000 fall under 

the ATEP program, and that is, these are aliens who previously 

would have been—they were apprehended by the Border Patrol. 

Previously they would have been turned around right at the border 

and called a ‘‘voluntary return.’’ Voluntary returns were never 

counted as removals. But since 2011, what they have been doing 

is taking these individuals and, for a good reason, they have been 

saying, well, let us transport them a few hundred miles down the 

border and then return them there so that they have a harder time 

reconnecting with a smuggling network; but we are going to count 

that as a removal, because ICE touched the alien for a few hours 

or maybe 24 hours during the process of helping to transport him. 

And so now we have got what are basically voluntary returns 

with a transit in place being counted as removals, and that inflates 

the statistics to 410,000. So, really, removals are way down. ICE 

ERO, Enforcement Removal Operations, the core removal unit, has 

seen a massive decrease in removals over the last 4 years. 

Senator LEE. So part of the problem with this is not necessarily 

that you should not be able to count that figure, because those are 

resulting from the efforts of DHS. It is the fact that it was a 

change compared to prior—— 

Mr. KOBACH. Right. Those never would have been counted as removals before. 

Senator LEE. Okay. 

Mr. KOBACH. And so one way to look at it is, well, calculate all 

of the alien turnarounds, removals, and everything, and look at 

that, ICE and Border Patrol combined over the past few years, and 

you see a decrease. 

Now, some will say, oh, well, that decrease is because fewer people are attempting to come in, that is why Border Patrol numbers 

are down. But the point being the numbers are being manipulated 

in a misleading manner. And the President himself even used the 

word ‘‘misleading’’ when he was talking to a group of Hispanic reporters about these removal numbers, and he said, well, it is not 
98 

really—it is misleading because it is not really like old removals, 

what we would count them as. 

So my point would be, if you are going to have metrics and you 

are going to have triggers, then pick something that is a very hard, 

indisputable number, maybe miles of fence constructed or specific 

numbers, as opposed to these very fuzzy percentages and success 

factors that this bill contemplates. 

Senator LEE. And you think it is possible to identify objective, 

verifiable metrics that could do that? And so if you were to improve 

this bill, you would propose something that is less subjective? 

Mr. KOBACH. Absolutely. But there are not that many things— 

one is miles of fence. That is something that is verifiable. But when 

you start talking about operational control, that is another one of 

those fuzzy factors that it is so virtually impossible to define. 

Senator LEE. Do they really call those ‘‘voluntary removals,’’ by 

the way? 

Mr. KOBACH. Voluntary returns. Yes, they call them ‘‘voluntary 

returns.’’ 

Senator LEE. I suspect that those people who were actually the 

subject of such returns would not think of them as voluntary. 

Mr. KOBACH. They probably would not. They were told return or 

else. But, yes, ‘‘voluntary’’ might be a misnomer. 

Senator LEE. Okay. Perhaps in a subsequent round we can get 

back to the casual, sporadic, irregular, or intermittent standard, 

but my time has expired for now, so thank you. 

Thank you, Mr. Chairman. 

Senator SCHUMER [presiding]. Senator Coons. 

Senator COONS. Thank you, Mr. Chairman. I want to start by 

just thanking the broad and bipartisan group of eight Senators who 

have worked so hard and over many months, and obviously all the 

different groups and individuals who have brought forward their 

stories and their views to help shape this bill, and the staff who 

have worked so hard on it. I think that this bill is a vital, an important first step towards moving our country away from our current broken, outdated, and in many ways unequal and unjust system to one that will work, and work in a way that comports with 

American values. 

There are many important aspects of this bill to support that are 

encouraging: the resolution of the concerns of DREAMers, an 

earned path to citizenship, dramatically reducing backlogs, dealing 

more fairly with those seeking refugees—refugees seeking asylum. 

And coming with a system that more successfully keeps highly talented individuals who have been educated in this country here to 

contribute to our economy. 

Like others who have spoken before me, I think there is still 

work to be done: additional due process protections, ensuring that 

all families, including LGBT families, are equally valued in this 

bill, and an emphasis on investing in education for U.S. nationals 

to address the skills gap over the long term. I think there are a 

number of areas we can work on together. 

And I appreciate Chairman Leahy’s commitment to having an 

open and transparent process and to the length at which this panel 

has testified today. 
99 

Ms. Pacheco, if I might first just thank you for your story, your 

testimony. This is the second time I have heard you testify to this 

Committee, and it is a reminder of the individual stories that make 

up the broad fabric of the concerns that we are dealing with. 

Ms. Lichter, if I might, I am interested in hearing you speak specifically to the need for appointed counsel or for an expanded legal 

orientation program. I was struck in a previous hearing I chaired 

to learn that more than 80 percent of detainees are unrepresented 

in any way, even if they are children, if they are mentally incompetent, if they are asylum seekers, and that, frankly, the absence 

of counsel for the overwhelming majority of non-citizens who are 

too poor or vulnerable to get them bogs the system down and actually makes it harder for immigration judges to do their job. And I 

would also be interested if you would speak concretely to your experience representing individuals with long past minor criminal offenses that have been deemed ‘‘aggravated felonies’’ for the limited 

purpose of the immigration law. If you can speak to both of those, 

I would appreciate it. 

Ms. LICHTER. Thank you, Senator Coons, and you have hit upon 

probably the dirtiest little secret of our immigration proceedings, 

which is that this is one of the most complicated areas of law I 

think one can practice, and it is a forum in which we willingly 

throw people that do not have a sophisticated legal background. 

They might not even speak English. Most of them, as you noted, 

especially detained cases, do not have legal counsel. 

The existence recently of legal orientation programs, where we 

advise people as to in general very broad terms, what they are facing, why, for example, they are detained, what avenues for relief 

there might be, have been extremely successful not only in promoting what would be, I think, important to many in the fair interest of justice and fair administration of the immigration laws, but 

there is an efficiency here as well. If we can explain to an individual that because of their lack of ties to the United States or because of their history that they do simply not have any relief in 

front of the immigration court, that case can be moved on very 

quickly. And, in fact, the legal orientation of programs themselves 

have been responsible for a significant amount of savings in terms 

of detained case processing and case processing in general. 

It is clear also in this context that we have individuals coming 

to removal proceedings only because they have old minor crimes. 

And when we hear the words ‘‘aggravated felony,’’ I think many of 

us think, well, that sounds bad, it is aggravated and it is a felony. 

But what that really means in immigration is something else. It 

can involve something for which the individual never spent a day 

in jail, where there was not actually even any physical harm. It 

could be something that is 20, 30, 40 years old. I have had people 

facing removal proceedings for crimes that were that long in the 

past. And, unfortunately, the system that we have currently does 

not provide almost any path out of removal for those individuals, 

but for the very, very extreme cases where they might be facing 

persecution if they were returned home. 

Senator COONS. Thank you, Ms. Lichter. 

Ms. Murguı ́a, if I might, you have spoken about the potential 

economic benefits as well as the moral imperative to establish an 
100 

earned path to citizenship and the possible benefit to our economy 

of having 11 million people be able to fully participate in our economy. If you would, just talk a little bit further about that and 

about this bill as a compromise. Can you help us understand what 

would happen on these fronts if the hurdles to earned legal status 

are too high, and for a significant number of those currently here 

in undocumented status, what would the consequences be? 

Ms. MURGUI ́A. Well, sure, and I will just reiterate a piece on the 

economic impact, and that is that even on Friday this Committee 

heard that there would be an overall net gain to our economy by 

moving forward with a comprehensive immigration reform bill to 

the tune of $1.5 trillion to the U.S. GDP over a decade. And we 

know that, in addition, there would be billions added in terms of 

earned wages by many. So we do see this as net gain. 

I will tell you that as we look at the legalization program right 

now—and, again, we see this path to citizenship and legalization 

that has been put forward there—I think for us the fact that we 

can build on that as a way to move forward is really important, because it is essential. What I mentioned earlier was that we do have 

some questions about the length and, again, the costliness of—the 

high cost, perhaps, with the fees and provisions there. And I think 

what we want to make sure we are doing is that we are not undermining our very goal of achieving legalization and citizenship by 

creating some of these barriers, which could be the length of time 

or could be the fees. There will be several fees. And, in fact, we 

know immigrants want to learn English, and if we are going to 

have the standards for them to learn English, we just need to make 

sure those supports are there for them to be able to have access 

to English classes and to the citizenship classes, which in the past 

has been a problem. But we are encouraged by what we see here. 

But if all of those pieces are not in place and if there is not attention to the potentially high cost and the length of time, I think we 

could undermine our very goal of seeing that citizenship become a 

reality. 

Senator COONS. Thank you, Ms. Murguı ́a. 

Thank you. 

Senator SCHUMER. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. And I want to 

first join in thanking Senator Schumer and others who have participated in the Group of Eight—I hesitate to call them a ‘‘gang’’— 

that have produced such a very promising and important and really historic consensus solution to a topic that I think is probably the 

most important—among the most important that we face today in 

the United States and will determine the America of our children 

and our grandchildren. And I will be very proud to vote for immigration reform. I do not know that it will be exactly the bill that 

has been proposed, and I want to thank this panel and others that 

have been here before and will be here after for making the suggestions that they do. But I think we can be a better America, juster, 

freer, and more productive, if we bring those 11 million people out 

of the shadows and do the background checks. We may figure out 

better ways to do them. And I am a law enforcement guy. I believe 

that background checks can always be improved. But those background checks will make us safer. And enlisting and recruiting 
101 

those 11 million people in a path to earned citizenship I think will 

be good for them. 

And I do not know, Mr. Krikorian or Secretary Kobach, whether 

you have spent a lot of time with the DREAMers, but I sort of 

think the DREAMers are ground zero. They are the basic—you 

know, who could be against giving these people citizenship? I have 

spent a lot of time with them. I have come to know them. I try to 

go to the floor whenever I can with pictures of them and their stories so that people understand who they are. 

Let me begin, Mr. Kobach, Secretary of State Kobach, by asking: 

What is your position on people who are born here whose parents 

are here illegally? Should they be U.S. citizens? 

Mr. KOBACH. Well, under current Federal law and under current 

practice, long practice that the executive branch has had for many 

administrations, they are treated as U.S. citizens. 

Senator BLUMENTHAL. And I take it you would oppose that policy? 

Mr. KOBACH. Well, there have been a number of bills introduced 

in Congress, and some of them I think have some merit, that would 

say that, for example—I am remembering Nathan Deal as the author of one of these that would say that if a person is born and at 

least one of his parent is either a green card holder or a U.S. citizen, that would be truer to the intent of what the writers of the 

14th Amendment had that the individual, to gain U.S. citizenship—— 

Senator BLUMENTHAL. But do you not in your opposition to 

DREAMers having eventually this expedited path to citizenship 

have to oppose anybody who is born here whose parents are here 

illegally being denied citizenship and having to go to the back—— 

Mr. KOBACH. No, you do not—— 

Senator BLUMENTHAL [continuing]. Because they are—they are 

really no different in terms of their intent, their basic circumstances, than someone who is brought here by their parents 

without any choice on their part. 

Mr. KOBACH. No, I do not think you do have to. One does not 

necessarily imply the other. There are a lot of reasons in the law 

why the current way we define natural born citizenship is simple 

and easy, so we can know instantly if a person is a U.S. citizen 

based on the place of their birth. And so there are lots of balances 

on both sides of that question, and so I am simply saying that proposals in Congress to, you know, define that more narrowly, who 

would have access to instant natural born citizenship, they may be 

more consistent with the Framers of the 14th Amendment, what 

they meant by that, but there are also other costs, legally. So I do 

not think one necessarily implies the other. 

You know, looking at the green—— 

Senator BLUMENTHAL. Because the criteria are too complex if 

they are brought here? 

Mr. KOBACH. Well, you then have this problem of determining 

citizenship is much more difficult than if you have to obtain other 

verifications. 

Senator BLUMENTHAL. Well, let me just suggest to you, because 

my time will shortly expire, that I think the benefits of setting definitions that serve the national interest of having those people who 
102 

are brought here without any choice of their own, much like they 

are born here without choosing to be, are very, very much the 

same. And the DREAMers who are contributing to this country, are 

in school, serving in the military, are in, if anything, in terms of 

equity, a better position in deserving that kind of treatment of 

being given a path to expedited citizenship. 

Mr. KOBACH. One very brief response. Past versions of the 

DREAM Act have included an upper age limit, and, you know, the 

idea is if you get—the closer you get to somebody who is actually 

a minor, you can say, well, that person is not responsible for his 

or her actions, I think we would all agree. But this bill has no 

upper age limit, so a person who is 40 could say, ‘‘Well, I am a 

DREAMer,’’ and, of course, he does not have to prove that he was 

in the—there is no documentary—— 

Senator BLUMENTHAL. With an age limit, you would not oppose 

it? 

Mr. KOBACH. No, I think I would still oppose it, but my point is 

that this one does not have any age limit, and so it makes it less 

tolerable, you know, the more open-ended it is. And so I think, you 

know, people will fall on different places on the spectrum, but I 

think most people would agree that if you do not put an upper age 

limit on it, that is extremely problematic. 

Senator BLUMENTHAL. Thank you. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you, and I guess I will just ask one 

question here since I have not had a chance. I take it, Senators 

Cornyn and Lee, you have had the opportunity to ask this panel 

questions. Yes, okay. 

My one question is to Mr. Krikorian. The organization you are 

executive director of, that is called the Center for Immigration 

Studies. I just want to clarify. You advocate lower levels for both 

illegal and legal immigration. Is that correct? 

Mr. KRIKORIAN. Well, ideally no illegal immigration, and lower 

overall immigration, yes. 

Senator SCHUMER. Okay. But you would want the legal level to 

be lowered as well? 

Mr. KRIKORIAN. Yes. 

Senator SCHUMER. Okay. So when some on the other side say I 

am not for any illegal immigration but I want to have more legal 

immigration, that would not be your position? 

Mr. KRIKORIAN. No. But the first priority has to be to regain control of the system, because if we do not enforce the laws, it does 

not matter what the laws are. So in a sense, it is almost a second 

priority issue. It is an important issue, but it has to come after we 

regain control. 

Senator SCHUMER. You may not think we have done it effectively 

enough, but that is our goal as well, to prevent—I have always said 

Americans—and this disagrees with the second proposition, but 

Americans will be fair and common sense towards legal immigration and the 11 million who are here in the shadows, provided they 

believe that there will not be future waves of illegal immigration. 

Mr. KRIKORIAN. I actually agree with that. 

Senator SCHUMER. Yes, and we attempt to do that in our bill. 

You obviously think we do not meet the mark, but that is okay. 
103 

All right. With that, then, let me call up the next panel and 

thank this panel for their comments and expertise. I thank my colleagues for their good questions, and we will move on to the next 

panel. 

[Pause.] 

Chairman LEAHY [presiding]. Thank you. Everybody here we are 

going to have is on this list: 

Mark Shurtleff, Bill Vidal, Janice Kephart, Chris Crane, Steven 

Camarota, and Grover Norquist. 

The first witness will be Mart Shurtleff, who served three terms 

as Utah Attorney General. He is currently a partner at Troutman 

Sanders, a Washington, DC-based law firm, and first I do want to 

thank again Senator Schumer, who has not only spent so much 

time on this but has also filled in to chair it, and Senator Durbin, 

also part of the so-called Gang of Eight, who has been chairing in 

my absence. Unfortunately, like everybody here, we all sit on so 

many different committees, and they all seem to be meeting at the 

same time. So I appreciate that. 

Mr. Shurtleff, you go ahead. 

STATEMENT OF MARK L. SHURTLEFF, PARTNER, TROUTMAN 

SANDERS LLP, AND FORMER ATTORNEY GENERAL FOR THE 

STATE OF UTAH, WASHINGTON, DC 

Mr. SHURTLEFF. Thank you, Mr. Chairman and Members of the 

Committee. It is an honor to be here today in these historic hearings. 

I am very pleased to see that there are four former Attorneys 

General who sit on this Committee, and two of my mentors, frankly, Senator Blumenthal and Senator Cornyn, a few years back 

when I first became Attorney General. It is a pleasure to be with 

you today. 

Beginning with my service as a prosecutor in the United States 

Navy right out of law school up until just leaving office as Attorney 

General a few short months ago, I have dedicated and committed 

my life to public safety and to law enforcement, and I am very, 

very thankful for the opportunity today to speak on behalf of the 

criminal justice system on the issue of comprehensive immigration 

reform. 

I am also a student and an author of history, and I love what 

the Founders said when they wanted to form a more perfect union. 

The first two things they wanted to do were to establish justice, 

which was obviously all about equal access, equal opportunity, 

equal treatment under the law; and to ensure domestic tranquility—both of what law enforcement and the criminal justice system are all about. And I believe that is what this proposed Senate 

bill 744 does. 

Having been a long time also a Republican advocate for comprehensive reform of America’s immigration system, I applaud the 

sponsors, I applaud this Committee for moving so quickly with the 

strong bipartisan purpose in holding these hearings and moving 

forward on this. 

From my experience on the ground at the State and local level 

dealing with the impact of a broken system—in fact, that is where 

it is felt, at the local and community level, where law enforcement 
104 

and public safety address these interests. It is not only a moral imperative of this Committee and of this Senate and of this country 

to move forward with appropriate reform, but I think it also demonstrates what is best about America, and that is the ability to pull 

together for the good of the whole—and not the least of which is 

to enhance national security and local public safety. I believe that 

not just the very important provisions about increased border security do that, but the entirety of the bill is about fixing a system 

in order to reduce illegal immigration, so that by modernizing our 

system and making legality and accountability our top priority, our 

Government can take control and make immigration once again 

work for America. 

I am very pleased, Mr. Chairman, if I could, to be able to introduce two letters and ask you that you would introduce them. They 

have already been sent to the Committee. One is an April 15th letter. It is the official position of the National Association of Attorneys General. Having had 36 signers, it becomes the official position of the National Association in support of comprehensive reform. 

I am also very pleased to have worked with a couple of my 

former colleagues, the former Republican and Democratic Attorneys General of Arizona, Grant Woods and Terry Goddard, and 76 

other former Attorneys General—my predecessor, Jan Graham, a 

Democrat—a bipartisan letter dated April 21st, also in support of 

this comprehensive immigration reform. 

Chairman LEAHY. They will be included in the record. 

Mr. SHURTLEFF. Thank you. 

[The letters appear as submissions for the record.] 

Mr. SHURTLEFF. Now, beginning in 2010, as Arizona 1070 passed 

and the States are trying to respond to the lack of comprehensive 

reform by Congress, the State of Utah, in particular law enforcement in the State of Utah, was very concerned about the huge negative public safety implications of State-by-State, enforcement-only, 

drive-them-out self-deportation-type laws. And so we in Utah knew 

that that was coming to Utah, and we wanted to try and do something different. We knew we had to do more than just say no to 

a 1070-type law. But we needed to get together with other important groups, and in this case law enforcement got together with 

those who carry Bibles, members of the faith communities, as well 

as chambers of commerce and business leaders and others who 

knew the terrible negative and the terrible community—family and 

community negative impacts of these State-by-State law enforcement measures to oppose 1070 and did something extraordinary in 

Utah. We came together and passed something called the Utah 

Compact, which we felt helped support a different approach in the 

State of Utah, to do things like a guest worker program and some 

other issues towards comprehensive reform and to oppose these 

negative aspects. 

You know, in Utah, by the time 1070 passed, we decided to focus 

our law enforcement efforts on going after the true criminal—what 

we call ‘‘criminal aliens,’’ those who are in our country illegally to 

commit other crimes—drugs, guns, human trafficking, and all these 

other things. And, you know, we found that 90-plus percent of our 

confidential informants were otherwise undocumented, otherwise 
105 

law-abiding members of our community. And we understood that 

by making our law enforcement officers into ICE agents would terribly impact our ability to work together as a cohesive community 

with undocumented residents to go after the worst of the worst. 

And so we brought those groups together. Our very brave, I believe, Republican majority in the House and Senate in Utah passed 

comprehensive reform. They were threatened. They were told by 

some of the groups actually who have been on these panels today 

that they would be kicked out of office at Republican conventions 

and primaries. The truth of the matter was they stepped up and 

did the right thing, and every one of those brave, in our case Republican legislators were re-elected. They did the right thing for 

the right reason, and the people of Utah recognized that, and I believe the people in this country will do so as well. 

Now, obviously border security is very important, and there is 

much to be said about what this bill does. But our point is that we 

believe in law enforcement that the best defense is a strong offense, 

and there are so many provisions in this bill that will encourage— 

or discourage illegal immigration that we create the first choice in 

those who want to come to this country to work, to benefit their 

own lives or to benefit this great country, and that is to choose a 

pathway that is correct and legal. So all those other provisions in 

this law are those that help, in addition to securing our borders, 

in addition to those provisions with regard to a more—a stronger 

border. 

Thank you very much. 

[The prepared statement of Mr. Shurtleff appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

Bill Vidal, former mayor of Denver, Colorado, currently serves as 

the president and CEO of the Hispanic Chamber of Commerce of 

Metro Denver. 

Good to have you here, Mr. Mayor. 

STATEMENT OF HON. GUILLERMO ‘‘BILL’’ VIDAL, PRESIDENT 

AND CHIEF EXECUTIVE OFFICER, HISPANIC CHAMBER OF 

COMMERCE OF METRO DENVER, AND FORMER MAYOR OF 

DENVER, COLORADO 

Mr. VIDAL. Thank you, Mr. Chairman, Members of the Committee. My name is Guillermo Vidal—I am also known as ‘‘Bill’’— 

and I am here to lend support to the Border Security, Economic 

Opportunity, and Immigration Modernization Act of 2013. 

Before I go on, I know as Coloradans we send our prayers and 

support to our neighbors in Texas and Massachusetts, and in solidarity, we stand with you as Americans as you try to make a better 

day for your communities. 

I am the president and CEO of the Hispanic Chamber of Commerce of Metro Denver, an organization of over 2,000 business 

members. And although I represent the business community today, 

I also bring over 36 years of experience as a public servant that 

culminated with my service as the 44th and first foreign-born 

mayor of the city and county of Denver. 

I am a proud American, but I am also a Cuban immigrant who, 

in 1961, at the tender age of 10, was sent by my parents to the 
106 

United States with my two brothers as part of a program called 

Operation Peter Pan that sent 14,000 Cuban children to this country unaccompanied by their parents to escape from Castro’s Cuba. 

For this reason, my testimony today is rooted in everything that 

I am, everything that I have, and everything that I have ever represented, that was a direct result of the door I was able to walk 

through when I first stepped onto American soil. 

My personal story represents two great truths about this country: 

First, that anyone, regardless of the most humble beginnings, 

can become anything they set their mind to, like the mayor of a 

large city or perhaps even greater. 

Fifty-two years ago, I arrived in this country parentless and was 

sent to live in an orphanage in Pueblo, Colorado. Every day I woke 

up not knowing what suffering awaited me. Many nights I cried 

myself to sleep and asked a merciful God to take my life and spare 

me from the great sorrow I was experiencing. 

Yet here I am today in this great hall in front of you, the Senate 

Judiciary Committee. It is a wonderful testimony to this country. 

The second truth that my story represents is that immigrants 

make positive contributions to the success of this country daily, especially when they can live out of the shadows, as I have been able 

to do. 

Did you know that over 40 percent of Fortune 500 companies 

were started by immigrants and their children? 

Immigrants built America. We came escaping the desperation of 

poverty or to free ourselves from oppressive regimes that violated 

our human rights. We came in search of education and opportunity. 

We chose a new destiny, the United States of America, a beacon 

of hope and promise of a brighter future, a place where we can live 

in freedom and contribute to the success of our families and our 

communities. 

Unfortunately, over the years, indecisiveness and lack of action 

on comprehensive immigration reform has resulted in a dysfunctional system that, I believe, has confiscated the respect we once 

held for immigrants and replaced it with a fear and ignorance that 

has dehumanized these individuals to the point that they are 

looked down upon as human throwaways. 

Now, there are many business reasons to improve our system 

and why the chamber and I are encouraged by the bipartisan effort 

that emerged to craft this legislation. But after all my years in government developing public policy, I know that no legislation will 

ever be perfect enough to satisfy every nuance from all political 

sides. 

But hopefully we can agree on one thing. Fixing our immigration 

system will contribute to the greater good of our country by: securing our borders and providing a safe, fair, and orderly process into 

this Nation; giving a clear set of rules and realistic timeline for future immigrants to live and work here; providing legal status and 

a path to citizenship to undocumented immigrants already here so 

that they may openly contribute to our society; keeping families together; providing immigrant children who came here following the 

will of their parents a stable home and their own opportunity at 

the American Dream. 
107 

This comprehensive immigration reform will bring people out of 

the shadows, which is a good thing, to: provide a skilled and dedicated workforce that will grow our economy; invite 

entrepreneurialism and innovation that will create more businesses 

and jobs; bring in new revenues in the form of taxes that will help 

us run our country and strengthen our government; bring out into 

the open a new group of consumers that will spur new business 

growth. 

My parents made an unfathomably courageous sacrifice in sending their children to this country, and I am better for it. My life 

has been filled with hope, opportunity, meaning, and purpose. I am 

fulfilling their American Dream for me. But although it was not 

perfect at the time, the America I was sent to as a child would 

never have tolerated the things I have seen as mayor of a large city 

where many immigrants must live in fear of being deported or 

being separated from their families, or having their wages stolen 

by a deceitful employer, or having no legal recourse when crimes 

are committed against them. 

I ask you to support comprehensive immigration reform. Let us 

brighten that light that America has always proudly displayed for 

the rest of the world. 

Thank you, and I will be happy to answer questions when the 

time comes. 

[The prepared statement of Mr. Vidal appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

The next witness is Janice Kephart, former counsel of the September 11 Commission and a principal of 9/11 Security Solutions. 

Ms. Kephart. 

STATEMENT OF JANICE L. KEPHART, FORMER BORDER 

COUNSEL, 9/11 COMMISSION, AND PRINCIPAL, 9/11 SECURITY 

SOLUTIONS, WASHINGTON, DC 

Ms. KEPHART. Chairman Leahy, Members, thank you so much 

for having me here today. I appreciate very much this Committee’s 

continued interest in reform and securing our borders and protecting our national security. I further appreciate being back as an 

alum of the Committee I was so privileged to staff. 

I begin by putting the bill in context of both the illegal border 

problem and issues with legal immigration processing. 

On the legal immigration side, in light of the Boston Marathon 

terrorist attack, we were reminded once more that border security 

is indeed essential to national security. Historically, the 1986 amnesty program was fraudulently used five times by terrorists in attempts to establish residency. Three of five succeeded in attaining 

the benefit, but the key for each of them was that simply applying 

for the benefit allowed them to embed long enough to commit the 

terrorist act. 

The effect of today’s bill unfortunately will not be that much different than the 1986 bill. Why? Two recent examples of the immigration system serving up immigration benefits to terrorists show 

the system is not much better now at discerning terrorists than it 

was in 1986. 
108 

First, Boston Marathon terrorist 19-year-old Tsarnaev just received his naturalization on September 11th of this past year. Was 

there really no way to learn of his terrorist leanings just a few 

months ago? 

Less well known, a Syrian known deeply affiliated with the 9/11 

hijackers and assassinated Yemen’s al Qaeda leader Al-Awlaki was 

recently granted asylum on his third attempt, despite Federal law 

enforcement reopening the case. 

Second, the illegal problem is big. The southwest border is far 

from secure. Over both the Texas and Arizona borders, we are seeing a huge surge in illegal crossings, with the Texas Border Patrol 

saying it is looking at tent cities to deal with the onslaught, and 

central Arizona witnessing a 494-percent increase in illegal crossings from August of last year to November. 

Here is the issue: There is no way that illegal entrants who have 

never encountered our immigration or criminal system can be vetted as to who they say they are. And with 10,000 to 20,000 foreignborn terrorists that Federal law enforcement know reside in the 

United States, that creates a serious concern for more terrorists, 

using the compassion that we have for the DREAMers, to embed 

here illegally using the legalization in this bill. 

There are problems with the border security triggers as well. 

Overall, the concept of a comprehensive southern border strategy 

is really useful, but since the Homeland Security Secretary is not 

really required to assure border security, just state that it exists, 

that does not really help us assure that our borders are indeed 

more secure. 

The metric used in the bill to determine a 90-percent effectiveness rate depends on a 100-percent detection rate of apprehensions 

and turnbacks, which is not even close to being able to occur today. 

If there is not a 100-percent detection, then the 90-percent effectiveness rate set forth in the metric is going to be inaccurate. 

So how would a 100-percent detection rate be best achieved? We 

are not really told in the bill at all. And, unfortunately, that makes 

the metric fail. 

Moreover, the metric only applies to three of nine border sectors. 

That is an open invitation for smugglers to realign with the new 

metric and use whatever other six sectors are not considered high 

risk. 

The bill’s version of a mandatory E–Verify holds no consequences 

for illegal aliens who fail E–Verify. Moreover, E–Verify’s construct 

adds three more levels of review to a non-confirmation, culminating 

in an alien receiving four opportunities to get authorized. The practical result is that this appellate process for the alien creates a 

really difficult atmosphere for the employer to terminate an employee even when the grounds for authorization do not exist. 

In terms of the exit system requirement, this Nation most certainly needs to fulfill the mandate to complete a comprehensive 

exit system that includes air, land, and sea ports of entry. However, S. 744’s exit component fails to include the largest volume of 

crossings, which is at land borders. In addition, the exit component 

is unnecessary for two reasons, I believe. One, six prior inconsistent exit laws have already complicated the exit requirement 

enough. We do not need another one. And, second, just a few weeks 
109 

ago, congressional appropriators used their purse strings very wisely to realign exit implementation to Customs and Border Protection. CBP owning exit implementation may be the game changer 

we need to get the program done, because not only does CBP need 

that exit data to conduct admissions, but its sister agency, State, 

use it for visa adjudication and ICE needs better data to determine 

its overstays as well. 

Thank you so much for the opportunity to testify, and I am 

happy to receive your questions. 

[The prepared statement of Ms. Kephart appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. 

Our next witness is Chris Crane, president of the National Immigration and Customs Enforcement Council 118 of the American 

Federation of Government Employees based here in Washington, 

DC. 

Mr. Crane, go ahead. 

STATEMENT OF CHRIS CRANE, PRESIDENT, NATIONAL IMMIGRATION AND CUSTOMS ENFORCEMENT COUNCIL 118, 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

WASHINGTON, DC 

Mr. CRANE. Good afternoon, Mr. Chairman and Members of the 

Committee. I would like to begin by thanking the Senators on this 

Committee who have met with me and expressed concerns for law 

enforcement officers and the needs of law enforcement officers; in 

particular, Ranking Member Grassley, thank you. 

Americans should understand that this legislation only guarantees legal status for illegal aliens. It contains no promise of solving 

our Nation’s immigration problems, no guarantee of stronger enforcement on our Nation’s interior or its borders. It ignores the 

problems that have doomed our current immigration system to failure. 

I testify today without having the opportunity to read this bill in 

its entirety as the Gang of Eight’s rush to pass this bill denies their 

fellow Americans the time and means of effectively studying the 

bill and adding input. 

This legislation was crafted behind closed doors with big business, big unions, and groups representing illegal aliens—groups 

with their own interests, groups that stand to make millions from 

this legislation. Anyone with a significantly different opinion on immigration reform was prohibited by the Gang of Eight from having 

input. 

Lawmaking in our Nation has indeed taken a strange twist as 

Senators invite illegal aliens to testify before Congress and groups 

representing the interests of illegal aliens are brought into the development of our Nation’s laws, but American citizens working as 

law enforcement officers within our Nation’s broken immigration 

system are purposely excluded from the process and prohibited 

from providing input. 

Last week, desperate to be heard, border sheriffs, interior sheriffs, deputies, and immigration agents all came to Washington, DC, 

with the hope that the Gang of Eight would hear their concerns. 
110 

They held two meetings on two separate days. Not one Member of 

the Gang of Eight attended. 

Last week, when I respectfully asked a question of the Gang of 

Eight at their press conference, I was escorted out by police and 

Senate staff. I was spoken to with anger and disrespect. Never before have I seen such contempt for law enforcement officers as 

what I have seen from the Gang of Eight. 

Suffice it to say, following the Boston terrorist attack, I was appalled to hear the Gang of Eight telling America that its legislation 

is what American law enforcement needs. 

Since 2008, President Obama has ignored many of the immigration laws enacted by Congress and has instead created his own immigration system that unlawfully provides protections for millions 

of illegal aliens. Of course, Congress has done nothing to stop the 

President, and I submit to everyone that America will never have 

an effective immigration system as long as Presidents and their appointees are permitted to ignore the United States Congress and 

pick and choose the laws they will enforce and indeed enact their 

own laws without Congress through agency policy. 

This bill does nothing to address these problems. In fact, unbelievably, it gives far greater authority and control to the President 

and the Secretary of DHS—exactly the opposite of what our country needs to create a consistent and effective immigration system. 

If the laws enacted by Congress are not enforced by the Executive, America has no promise of future enforcement. That much is 

certain. 

Currently at ICE, immigration agents have filed a lawsuit 

against DHS and ICE because both have refused to enforce the immigration laws enacted by Congress. Agents cannot arrest individuals for entering the United States illegally or overstaying visas. 

Agents are prohibited from enforcing laws regarding fraudulent 

documents and identity theft. Agents are not permitted to arrest 

public charges. Agents are forced to apply the Obama DREAM Act 

not to children in children in schools but to adult inmates in jails, 

releasing criminals back into communities, criminals who have 

committed felonies, who have assaulted officers, and who prey on 

children. 

At an alarming rate, ICE deportation numbers have plummeted 

since 2008, evidence that interior enforcement has in large part 

been shut down, contrary to reports by Presidential appointees at 

ICE and DHS. 

In closing, my initial impression of this bill thus far is that in 

large part it appears to have a lot of loopholes. Everything from 

gang activity to arrest records to criminal backgrounds and fraudulent activities at many levels are acceptable or waiverable under 

this bill. The entry-exit system does not even utilize biometrics, 

making it ineffective yesterday. We already know that aliens are 

engaged in illegal activities that will bypass this system. 

At a time when Congress is proposing legalization for millions, 

I think Americans expected a stronger enforcement across the 

board that would prevent another wave of illegal immigration. Unfortunately, in terms of enforcement and providing for public safety, I think this bill is going to fall short in terms of legalization and 
111 

eventual citizenship. For 11 million illegal aliens, I think its success is guaranteed. 

Thank you, and that concludes my testimony. 

[The prepared statement of Mr. Crane appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. 

Dr. Steven Camarota is the director of research at the Center for 

Immigration Studies here in Washington, DC. You focus, I understand, on the economic and fiscal impact of immigration. Is that 

correct, Doctor? 

Mr. CAMAROTA. Yes, that is correct. 

Chairman LEAHY. Please go ahead. 

STATEMENT OF STEVEN A. CAMAROTA, PH.D., DIRECTOR 

OF RESEARCH, CENTER FOR IMMIGRATION STUDIES, 

WASHINGTON, DC 

Mr. CAMAROTA. Well, I would like to thank the Committee for inviting me. I am going to focus today on the fiscal side of things 

with some mention of the economics. 

In the modern American economy, those with relatively little 

education—immigrant or native—earn modest wages on average 

and by design pay modest taxes. Their lower income also means 

that they often benefit from welfare and other means-tested programs. As a result, the less-educated in general, immigrant or native, use more in services than they pay in taxes. There is simply 

no question about this basic point. 

The relationship between educational attainment and net fiscal 

impact is the key to understanding the fiscal impact of immigrants. 

The National Research Council estimated in 1996 that an immigrant who arrives in the United States without a high school education will use $89,000 more in services than he pays in taxes during his lifetime. If you adjusted that for inflation, obviously, it 

would be much bigger now. For an immigrant who comes with only 

a high school education, the net fiscal drain is $31,000. However, 

more-educated immigrants, just as you would expect, pay more in 

taxes than they use in services. 

In the case of illegal immigrants, the vast majority have modest 

levels of education, averaging only about 10 years of schooling. This 

fact is the primary reason illegal immigrants are a fiscal drain, not 

their legal status. 

My own research indicates that if we were to legalize illegal immigrants and they began to use services and pay taxes like legal 

immigrants with the same level of education, the net fiscal costs 

at the Federal level would roughly triple because they remain unskilled. 

Now, the figure to my left here illustrates the strong relationship 

between fiscal impacts and education. The figures show self-reported—this is what people said—use of major welfare programs 

and tax liability for immigrant households from 2011 Census Bureau data. The figures show that 59 percent of households headed 

by immigrants who do not have a high school education used one 

or more major welfare programs. And 70 percent of those same 

households have no Federal income tax liability. So the Census Bu-
112 

reau calculates how much they should be paying in taxes, and 70 

percent of those whole households would pay none. 

Since roughly 75 percent of illegal immigrants either have no 

high school education or only a high school education, the chart illustrates what is so problematic about illegal immigration from a 

fiscal point of view. 

Now, it is worth pointing out that less-educated natives also have 

high rates of welfare use and low rates of tax liability. It is also 

worth pointing out, of immigrant-headed households using welfare, 

86 percent—let me say that again-86 percent had at least one 

worker. These figures, these high rates of welfare use, are not the 

result of a lack of work. Rather, they reflect educational attainment 

and resulting low incomes and low tax payments and, thus, eligibility. 

Now, advocates of amnesty and high levels of immigration have 

two main responses to this situation. First, they argue welfare and 

other programs used by U.S.-born children living in immigrant 

households should not count. Now, that makes little sense, obviously, because the child is here as a direct result of their parents 

having been allowed into the country, so it must count as well. 

In addition, I would point out that the National Research Council 

statistics I cite did not include the children. It was only for the 

original immigrant, and they still found very large net fiscal drains 

for less-educated folks. 

Now, the other argument advocates of high immigration and amnesty make is that immigration creates such wonderful benefits for 

the economy that it offsets the fiscal cost. But the National Research Council estimated both the fiscal effect and the economic effect and found that the fiscal drain from immigrant households was 

actually slightly larger than the tiny economic benefit that we got 

from immigration. 

As the Nation’s leading immigration economist George Borjas of 

Harvard points out in a recent paper, immigration makes the economy larger, significantly larger, but it does not make Americans 

richer. It does not increase the per capita income of natives. 

Now, advocates for the amnesty respond that the National Research Council and the academic research is wrong. The Cato Institute, for example, commissioned a study a few years back using a 

model originally designed to estimate the impact of trade, and they 

found that the economic benefits were bigger. But it is not at all 

clear that that model even applies to immigration, and they largely 

ignore the actual fiscal characteristics of immigrants, like their use 

of social services. 

Now, more recently, Douglas Holtz-Eakin in an article for American Action Forum argued that immigrant-induced population 

growth would be a big economic benefit and, thus, generate large 

fiscal benefits or increases in per capita GDP. But he, too, ignored 

the academic literature. He ignored the development literature that 

looked at the impact of population growth on per capita GDP that 

does not show a big benefit. And he never mentions even in his 

paper the impact of legalizing illegal immigrants—— 

Chairman LEAHY. Thank you. 

Mr. CAMAROTA. Could I just say one more sentence? 

Chairman LEAHY. One more sentence. 
113 

Mr. CAMAROTA. One more sentence. 

In conclusion, if we decide to go ahead with this, we have to be 

honest with the American people and make it clear it comes with 

very large fiscal costs. 

Thank you. 

[The prepared statement of Mr. Camarota appears as a submission for the record.] 

Chairman LEAHY. Our next witness is Grover Norquist, the 

president of Americans for Tax Reform, a taxpayer advocacy group 

here in Washington, DC. 

Mr. Norquist, you have been here patiently all day. Go ahead. 

STATEMENT OF GROVER NORQUIST, PRESIDENT, 

AMERICANS FOR TAX REFORM, WASHINGTON, DC 

Mr. NORQUIST. Good to be with you. Thank you, Mr. Chairman, 

thank you, Senators. 

People are an asset. They are not a liability. America is the richest country in the world. It is also the most immigrant-friendly 

country in the world. This is not a coincidence. It is our history, 

and it is what we have proved again and again. Those of us who 

would change our history and would make us less immigrant 

friendly would also make us less successful, less prosperous, and 

certainly less American. 

I am delighted that at a time when people talk about Washington not being able to get something done and coming together, 

we have seen a lot of movement on this issue because we have a 

growing consensus—I will speak from a center-right perspective. 

The Reagan Republican movement understands the need to come 

to legal status for those who are here. We have seen the business 

community go from silence to strong advocacy for making this 

progress. Farmers, ranchers, the dairy people, the high-tech industry, all the communities of faith—Evangelical, Protestants, the 

Southern Baptist Convention, the National Association of 

Evangelicals, the Mormon Church, the Roman Catholic Church, the 

Jewish organizations—all are moving in this direction, and this is 

a real opportunity for Congress to get together and make progress. 

Now, however you look at this, it is important that we use dynamic scoring when we ask how we handle some of these statistics. 

People who do not like immigrants want to look at costs and not 

benefits. They want to imagine that 20-year-olds stay 20 years old 

all their lives. But I would point out that people, as they come 

here, one, they accumulate skills; two, they get older, 30-year-olds 

make more than 20-year-olds. And ask yourself—we know that 

from 1986 there was a 15-percent jump in the income of the people 

who got legal status who had been illegal by becoming legalized. 

Well, how does this happen? 

Well, imagine what would happen to your siblings or your children if somebody said, ‘‘Go out in the world and do the best you 

can, but no driver’s license. Go out in the world and do the best 

you can, but do not get on a plane. And go ahead and go do what 

you want, but live in fear that when you do an interview, somehow 

you might get deported at the end of the interview.’’ 

I would argue, I think common sense tells us, that people who 

can live without that fear, people who can get a driver’s license, 
114 

people who can fly on a plane because they have earned legal status and the immigration reform that you have put together and are 

looking at has all the protections against bad guys coming in, going 

through people who are bad guys who need to leave, and this is tremendously helpful. And, again, taking a look at what Doug HoltzEakin has talked about, this is not just some increase in the economic health of the country. It is $2.7 trillion in advantage, reducing the deficit by having more people working. More people working, more people paying taxes is not a tax increase. It is deficit reduction without a tax increase. And I think it is the kind of deficit 

reduction that we can get bipartisan support for in the country. 

Now, people also throw up all sorts of other issues in order to 

throw marbles at the feet of a serious discussion about immigration. What about public education? The public schools do not teach 

kids how to read English well, and they do not teach them American history. Well, if that is a problem, then we need education reform, and that is being worked on State by State, but that is a 

problem for kids who are born here as well as everybody else in 

terms of what the quality of education they are getting is. 

What about the welfare system? Well, there are 185 means-tested welfare programs. Bill Clinton, a Democrat President, worked 

with the Republican Congress to reform Aid to Families with Dependent Children. We can make progress on the others as well. Reforming welfare is important, needs to be done, saves a lot of 

money, keeps people out of getting locked into welfare dependency. 

But none of those are arguments for getting in the way of immigration reform. 

And then there is the question of entitlements. Somebody is going to pay $100,000 in Medicare and get $400,000 in benefits because they are born. That is not a question of immigration. That 

is a question of an entitlement system that is out of whack and 

needs to be reformed. 

So let us reform public education, let us reform the welfare system, let us reform entitlements, but let us move forward first, now, 

on immigration reform as well. 

Thank you. 

[The prepared statement of Mr. Norquist appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

You know, Mr. Vidal, you talked about—this is not a question, 

but you talked about so many immigrants who are not legal, that 

they have no legal recourse when something happens if they are 

told, ‘‘I will pay you $20, if I hire somebody else, I would have to 

pay them minimum wage, but I will just pay you $20,’’ you have 

no legal recourse. 

My wife is a registered nurse. We were driving near Los Angeles 

once, and a well-dressed person with a large dog was walking down 

the street. A very large dog. A person who appeared to be in sort 

of workman’s clothes and appeared to be Hispanic was walking up 

the street. The dog runs over, bit him. As we were driving by, we 

just saw the blood gush from his leg. Well, we turned around and 

zipped back to see if there was any way we could give any aid. He 

had left. The woman who had the dog was walking blithely down 

the street knowing this person could never make any complaint. 
115 

And I tell you, that has stuck in my mind for years and years since 

then. 

Mr. VIDAL. If I may add, Mr. Chairman, people suffer even greater happenstance than that, greater crimes, and have no legal recourse to go after the perpetrator. 

Chairman LEAHY. Trust me, I was a prosecutor for 8 years, and 

I know those who were afraid to come forward and report a rape, 

report a batter, report a robbery, which meant that the rapist, the 

robber, the person who committed the battery got away scot free, 

and that is wrong, because they are out there and they could do 

that to anybody else and it is wrong. 

Mr. Norquist, you have addressed this, but I want to emphasize 

that some have said we cannot afford to reform our broken immigration system because of the current Federal deficit. I have heard 

50 reasons why we cannot do something. It is very easy in the Senate to find reasons why we cannot do something. It is kind of nice 

to try to find a reason why we can. 

Do you believe the current proposal before the Committee would 

compound the budget and deficit challenges we all agree we face 

in this country? 

Mr. NORQUIST. No, quite the opposite. First of all, it is very clear 

that people who earn legal status are not eligible for many Federal 

benefits for 10 or more years going into the future. So you avoid 

that. 

Second, that gives you plenty of time to reform some of these programs that need to be reformed and that the folks over on the 

House side have already passed a number of reforms in the Ryan 

budget, which I commend to the Senate. But it certainly shows that 

it can be done, and I think it will be done. 

But, also, when you tell somebody that you are going to tell them 

go ahead and, you know, look for work, without papers, but you 

cannot get a license, you cannot fly, I mean, the number of things 

you cannot do, of course it depresses their wages and makes it 

more difficult for people to do better. I think you will see in this 

case, as we have in the past, tremendous increases. 

Let me just suggest, if we go back in history, this argument that 

people that come over will be wards of the state was used against 

the Irish Americans, about the Eastern European Jews, about 

Southern Europeans, about Asians. I mean, we have heard this 

again and again, decade after decade, and the people who said it 

have always been wrong. 

Chairman LEAHY. My father was a grandchild of Irish immigrants and began with a very thriving business in Montpelier. My 

maternal grandfather came here from Italy, and he also put together a business in stone carving that employed a whole lot of 

people in a small town with very good wages. 

Now, Mr. Shurtleff, you mentioned that many of us have had a 

law enforcement background here, and, of course, you were Attorney General. We all ask these questions on bills like this. Is it 

going to help the efforts of State and local law enforcement to combat crime in their communities? 

Mr. SHURTLEFF. Absolutely, Mr. Chairman. We are very concerned, and, by the way, I talk to Federal and State law enforcement officers all the time. I attend funerals. I work with—I have 
116 

created a foundation to treat police officers who are sick from busting meth labs without proper protection. Those people do not see 

these efforts at bipartisan reform and comprehensive immigration 

reform as any kind of disrespect or attack on law enforcement. 

Quite to the contrary, they see it as a support to assist them in 

their jobs and what they are trying to do. 

The people they work with in their communities, the whole concept of community-based policing which is so critical to success in 

our communities mandates that people feel safe and able to work 

with law enforcement and trust that when they are hurt, when 

they are seeking help, they are going to have that from their local 

law enforcement officer. 

Chairman LEAHY. But it is the trust they have to have. 

Mr. SHURTLEFF. Absolutely need that trust. It disappears 

when—— 

Chairman LEAHY. And is it not possible we could have immigration efforts that might destroy that trust? 

Mr. SHURTLEFF. Absolutely. You know, we in law enforcement 

deal with the pragmatics, what is happening on the ground, not 

theoretics. And I have heard no proposals from the other side who 

are against immigration reform suggest anything that will work. 

Everything that is being done and proposed by this law that will 

discourage illegal immigration will encourage those people to come 

out of the darkness, to pay their back taxes, they will not have to 

steal Social Security numbers anymore simply because now they 

are going to be recognized. They are going to pay a penalty. This 

certainly is no amnesty as those in law enforcement understand 

what amnesty means. And it would be, I believe, a boon to public 

safety in this country as well as a moral imperative to go forward. 

Chairman LEAHY. Thank you very much, and I am going to yield 

to Senator Grassley and hand the gavel over to Senator Schumer, 

who will hand it on to whomever he wishes. I have to go prepare 

for—— 

Senator GRASSLEY. Does that count if there are only Republicans 

here? 

Senator SCHUMER. I would be happy to hand the gavel over to 

you for—— 

[Laughter.] 

Senator GRASSLEY. Okay. 

Chairman LEAHY. I have handed the gavel over to him on more 

than one occasion, as you may recall. There you go. 

Senator GRASSLEY. I am going to start with Ms. Kephart if that 

is okay with you. Can you talk a little bit more about the need to 

include land ports environment with identifiers in the entry-exit 

system? 

Ms. KEPHART. Sure. The land borders right now, as we all know, 

have the largest daily and national—annual crossing rate, much 

more so than the air and sea ports. 

Strangely, the exit component here does not include the land 

ports of entry. Perhaps that is because the infrastructures are really difficult to deal with, and that is understandable. But they need 

to be included because people can come in by air or sea and leave 

by land, and then we still do not have the data that we need for 
117 

ICE to do its job, for CBP to have its admissions data, for the State 

Department to do visa adjudications. 

The biometric piece of this is something that the 9/11 Commission was very, very interested in. We learned, in our findings and 

all my subsequent work with terrorist identities, that one of the 

best ways to determine a terrorist identity is through biometrics, 

because they will often change their name and change their identity. And without that biometric component, you will not evolve national security to the height that it can be. 

Biographic is very helpful. It gets us part of the way. It is a good 

first step. That is what the appropriators just did when they moved 

exit over to Customs and Border Protection to implement. That is 

a helpful first step. But biometric would be very helpful to have 

down the road if you really want to try to assure national security. 

Senator GRASSLEY. Mr. Crane, in my opening statement, I talked 

about how the bill does not necessarily require the border to be secured before those here illegally are provided legal status or even 

citizenship. Is that your reading of the bill? 

Mr. CRANE. Yes, Senator, it is. And, you know, I think in my 

comments I tried to point out that, you know, we currently have 

a situation where the Secretary of DHS and the President of the 

United States do whatever they want to do. They ignore the law, 

and they manipulate data. All of these things that, you know, are 

critical to making sure that there is some kind of system of integrity in place to monitor what DHS and ICE are doing down there 

and to stop the border—none of those things are going to happen, 

and all we have to do is look at what is happening right now. Everything this administration has done, everything this DHS Secretary has done, we can see right now this is not going to happen. 

Senator GRASSLEY. Mr. Norquist, you know I agree with you 

most of the time, and I am surprised to see—— 

Mr. NORQUIST. Good plan. 

Senator GRASSLEY. I am surprised to hear you backing a bill that 

has emergency spending in it. 

Mr. NORQUIST. Well, I am a Jack Kemp-Ronald Reagan Republican, and I think that this is a bill that will spur economic growth, 

give people more opportunities, make the economy stronger. There 

is a downside that all these people who have been here undocumented will now pay taxes and pay fines and the Government will 

get all this money and do something horrific with it. But that is 

the downside of the project, and I understand that others think 

that that is a positive—— 

Senator SCHUMER. We are good up until now. 

Mr. NORQUIST. Yes. So, look, the Government is going to get a 

whole bunch of revenue from people who have not been paying 

taxes and will be required to to earn legalization. There are fees 

involved, not exactly amnesty, as some people like to say. You wonder why they keep saying it. It is like a 14-year-old with a dirty 

word. They keep saying it again for shock value. It just is not true. 

You cannot hit people with fees and fines and all sorts of hoops to 

run through and act like you have not done anything. 

When we had the 55-mile-an-hour speed limit, there were an 

awful lot of illegal driving going on, and we did not decide to enforce that law. We decided to come up with a reasonable speed 
118 

limit and then enforce it. We did not even go back—we gave amnesty to all those people who had been illegally driving. This goes 

back and gives fines to everybody who had been illegally driving 

throughout the 1970s, which is a rather rough thing. It certainly 

is not amnesty as it was then. 

I think we should move forward, do the fines, do the back taxes. 

Let us get these people continuing to work. They are working now, 

but do so in the light of day so that they are protected from any 

sort of abuse or exploitation. And let us get control of the border, 

which is what this immigration reform does in addition to improving our immigration policy. 

We have problems. We have high-tech workers that do not come 

here. They go to other countries and compete with us. We need 

more people on farms. We need more people in a number of areas, 

from ranchers to dairy to farmers. This bill makes a step there. I 

do not think it goes far enough as a robust enough guest worker 

program. I would like to see more. But this is progress. 

Senator GRASSLEY. Ms. Kephart, your statement mentioned several examples of how terrorists take advantage of our system. You 

even mentioned how some terrorists have applied and received asylum. You also mentioned that the bill would allow people who have 

filed frivolous asylum applications to benefit under the legalization 

system. 

Do you know how many people fall into that category? And how 

does the bill before us make the current system weaker? 

Ms. KEPHART. I do outline in my written testimony a number of 

pages of terrorists who have taken advantage of asylum. We have 

most notably the case just a few weeks ago of the Syrian national 

who has been here since 9/11, who was known to help and support 

materially the 9/11 hijackers, who also was affiliated deeply with 

Al-Awlaki, and his immigration—his asylum went three times before the judge. The Federal law enforcement officers tried to reopen 

the case, and the judge considered it final. 

Senator GRASSLEY. I will ask you to go to that part of my question about how the bill might change this. 

Ms. KEPHART. I do not see the bill changing it very much at all 

and helping the system that is in place right now, make it more 

secure. I do not—it is just not there, Senator. 

Senator SCHUMER. Senator KLOBUCHAR. 

Senator KLOBUCHAR. Thank you very much, Senator SCHUMER. 

Thank you to all of you. 

I want to start with you, Mayor, as you are focusing on the economic advantages of this bill, which I think people do not always 

think about firsthand and how important they are. 

What do you see as the two or three biggest economic benefits 

of this bill? 

Mr. VIDAL. Well, I think the first thing that we seldom talk 

about is that we need the workforce. I mean, even if we hired all 

Americans, we still would be short of that workforce, and we need 

it. 

I also think that immigrants tend to bring with them new ideas, 

new entrepreneurialism. You know, in Colorado, 60 percent of 

small businesses right now are Hispanic-owned businesses; a ma-
119 

jority of those are immigrants. So if we talk about small businesses 

being job creators, this certainly will create jobs. 

I think in addition we will have new consumers. We will have 

folks who can apply for home mortgages, buy cars, and do the 

kinds of things that spur business growth in our country. So I 

think that there are many benefits to that. 

As the former mayor of a large city, I know that we are always 

short of funds for government services, therefore, I believe that the 

new tax and fee revenues that will be generated by this immigration reform will help us fund those services and thereby strengthen 

our Government. 

Senator KLOBUCHAR. Just to add to that, our State is actually 

second per capita for Fortune 500 companies, and one interesting 

fact is that of Fortune 500 companies, 90 of them are headed up 

by immigrants. Just to reinforce your view not only with small 

businesses but big businesses, and another double that are kids of 

immigrants. So I think people have to understand that this is more 

than just about legalizing people, bringing people in. It is the jobs 

that it will create in our own country. 

You also, I know, are a fan of the Invest Visa for foreign entrepreneurs. Can you comment on that quickly? Because I have one 

more. 

Mr. VIDAL. Well, I think, again, it is that foreign entrepreneurs 

can invest in companies here in the United States. I think we 

should welcome that. We compete in a global economy. It is something that would certainly be to our economic advantage to allow. 

Senator KLOBUCHAR. Thank you. 

Mr. Norquist, welcome. I was teasing you outside that we welcome you for your bipartisan debut, but you quickly corrected me 

that you, in fact, have testified before on evening out the penalties 

on crack cocaine and that that was a bipartisan effort. 

Mr. NORQUIST. Unanimous in the House. 

Senator KLOBUCHAR. Well, thank you. So this is what happens 

when you get involved in a bipartisan effort. 

The thing that I was going to ask you about was the H–1B cap. 

There has been a lot of testimony on that today. How do you see 

it improves the employment-based immigration generally? We want 

to focus on allowing American companies to grow here and add jobs 

here. And how do you see increasing that cap helps? 

Mr. NORQUIST. Look, we need to increase the H–1B cap. It is not 

high enough. You know, within days it was reached just this year. 

There is an awful lot of talent around the world that American 

firms would like to hire and bring here to work to create additional 

jobs here from Silicon Valley to across the country in all 50 States. 

These are people who come and create other jobs for themselves 

and other people, and it is a number that ought to be higher. It 

has increased in this legislation. It is a very important step. I think 

it should be increased more than in this legislation. But this is a 

real opportunity. 

You want to know how does it create jobs? It allows people to 

come here to create jobs. These people are bright, they are hardworking. They are going to be working somewhere else, either in 

other countries, a number of people have brought them up to Canada because they cannot bring them across the border here. No-
120 

body should be stuck in Canada. It is not fair. We should let them 

all come here—— 

Senator KLOBUCHAR. Oh, come on. I can see Canada from my 

porch in Minnesota. 

[Laughter.] 

Mr. NORQUIST. Oh, a foreign policy expert. 

So this is an opportunity to bring these people—allow them to 

come to the United States and work here, and raising that H–1B 

visa is an important part of why this is a pro-growth policy. 

Senator KLOBUCHAR. Very good. I noticed in your testimony that 

your testimony ends with a quote from President Reagan’s farewell 

address, in which he described ‘‘a shining city on a hill,’’ and he 

said this: ‘‘If there had to be city walls, the walls had doors, and 

the doors were open to anyone with the will and the heart to get 

here.’’ 

I think this quote is a good reminder that we have to keep working on this bill, and I wondered if you want to comment on why 

that quote was meaningful to you in this context. 

Mr. NORQUIST. Well, I think it is important to remember that the 

Reagan Republican/Jack Kemp Republican position has always 

been immigrant welcoming, and that this is—you see this now coming stronger, both in the business community and in the religious 

community, communities of faith. In 1999–2000, I was at a meeting 

with the head of the Republican Party, the Republican National 

Committee. Ten major trade associations—Chamber, NAM, NFIB, 

Retailers—and I was there as the taxpayer guy. And they went 

around the table, what is important? And they said, ‘‘Do something 

icky to all the trial lawyer, cut the capital gains tax.’’ And they 

went back and forth between those two important projects. 

And then at the end, the RNC Chair said, ‘‘Thank you very 

much,’’ and he got up to leave, and a gentleman from the Chamber 

said, sort of like they do in the ‘‘Colombo’’ shows just in the last 

minute, he said, ‘‘There is this other thing.’’ ‘‘Well, what is it?’’ 

‘‘Well, I do not know how to bring it up.’’ ‘‘What is it?’’ ‘‘Well, we 

have never mentioned it before.’’ ‘‘What is it?’’ He said, ‘‘We are 

running out of workers. The economy is growing. We need immigration reform. We have never worked on this before. We do not 

know how to address it.’’ 

Everybody around that table, from the truckers to the restaurateurs to the retail people, all said, ‘‘Actually that is a bigger 

issue for us than the stuff we talked about.’’ And the business community did not talk about it for years. They are now talking about 

it again and focused on the importance of reforming it. H–1B visas, 

a guest worker program—all of these things are steps in the right 

direction. Very helpful for the economy. This is the most—this is 

real stimulus. This would be the best thing that the Senate and the 

House and the President could do for the economy and for deficit 

reduction, and it really should be a high priority. 

Senator KLOBUCHAR. Thank you very much. I appreciate it. 

Senator SCHUMER. Senator Sessions. 

Senator SESSIONS. I will yield to Senator Cornyn. 

Senator SCHUMER. Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. I appreciate my 

friend Senator Sessions letting me go next. 
121 

Ms. Kephart, you were very much involved with the 9/11 Commission, correct? 

Ms. KEPHART. Yes, sir. 

Senator CORNYN. And I seem to recall that at least six of the 9/ 

11 hijackers came into the country legally but overstayed their 

visa. In other words, they were part of that 40 percent today, 

roughly, of illegal immigration that occurs when people come in legally but overstay. Was that a major concern of the 9/11 Commission? 

Ms. KEPHART. Well, actually, in my findings, most of the hijackers worked extremely hard to stay within their legal admission 

time frame. So you had the pilots going in and out many, many 

times. But the ‘‘muscle hijackers,’’ as we called them, the support 

hijackers, basically came in April and May and June of 2001 to 

stay within the 6-month time frame that they had. There was only 

one that came in, and he was given a business visa of 2 weeks, and 

he was an overstay. So the overstay issue, like the land borders, 

was not a big issue for the 9/11 Commission because they did not 

become part of the story. 

When they became a part of the story was when we insisted on 

looking at a pattern of activity of terrorists and how they abuse the 

immigration system. As we started looking into it, and we realized 

there was as pattern of terrorist travel, we asked to look beyond 

that. Our executive director gave us the ability to do that, and that 

is when we saw all the other issues evolving. 

And I did a major report subsequently on 94 terrorists and how 

they managed to embed and assimilate in this country, and the 

visa overstay piece of it was a large part of it. 

Sorry for the long answer. 

Senator CORNYN. Mr. Norquist, you know there is a lot of skepticism about the Federal Government in general and Congress in 

particular. I think Congress’ approval rating hovers around 11 percent, maybe 15 percent today. So it seems to me the last thing we 

would want to do is to confirm that lack of confidence that many 

of the American people have about Congress and promise something we are not going to deliver. And I am concerned particularly 

about the border security element and the visa overstay element. 

With 40 percent of the illegal immigration occurring because of 

people who enter legally and then since we are not keeping track 

of them—and I am very concerned about the lack of an exit program at the land-based borders, particularly in my State with 

1,200 miles of common border with Mexico. But are you concerned 

at all that the border security component of this, about the credibility of it, which only provides that three out of nine southern border sectors will require the 90-percent effectiveness rate in terms 

of apprehension, when, in fact, we know that as you tighten the 

border in one place, the human smugglers, the drug dealers, and 

others come through other less guarded places? Is that an important issue? 

Mr. NORQUIST. Look, border security is important to the country. 

Border security is important to this bill holding together. The way 

we in the past have dealt with border security issues, we used to 

have over 800,000 people apprehended at the border with Mexico, 

and then we had a guest worker program put in by Eisenhower. 
122 

And then it went down to about 45,000. And as long as that robust 

guest worker program was there, people crossed legally, not illegally. The most important thing you can do to reduce illegal entry 

is to have a serious, grownup, robust guest worker program and a 

way for people to get her legally to do work that needs to be done 

with willing employers and willing workers. Then you only have to 

worry at the border about bad guys, not about guys that want to 

work. 

Senator CORNYN. Well, I agree with that last comment. I agree 

that if people want to come here and work, then having a legal system for them to do so is important. But I do not think that is going 

to deter the drug traffickers, the human traffickers, and other people that deal in contraband. 

Mr. NORQUIST. But, sir, it frees up the officers at the border to 

focus on bad guys instead of trying to go after people who are coming here to work because they would have a legal way to come here 

and work. That is what happened when Eisenhower did it, and I 

think there was a lot of wisdom. Eisenhower had a very big success 

there. And when the Federal Government does something well, it 

would be a good idea to study it because it is kind of rare. 

Senator CORNYN. Mr. Shurtleff, it is good to see you again, and 

I just had a question about the provision of the legislation which, 

again, I am not sure how many of you have had a chance to read 

all 844 pages of it, but it does provide that people who have been 

convicted of multiple domestic violence offenses, drunk driving offenses, and child abuse offenses, that they could take advantage of 

this legalization pathway. 

Would you be concerned about where that line is drawn in terms 

of whether that should be available to those folks? 

Mr. SHURTLEFF. Yes, Senator, absolutely. You know, some of the 

concerns we have had in law enforcement, local and State law enforcement officers, with some of these State-by-State requirements 

of acting as ICE agents was it took away from their responsibilities 

to protect the public from other type criminals. And so, yes, I am 

concerned about that. I think that needs to be looked at and resolved. Truly, these—we are going to give this opportunity to be 

given to those who are truly the law-abiding members of our community. 

Senator CORNYN. Mr. Vidal, thank you for your kind comments 

about the people of West, Texas. I think the President is going to 

be there on Thursday as part of the memorial service for the first 

responders at Baylor University, but thank you for your kind comments. 

Thank you. 

Senator SCHUMER. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Senator Schumer, and thank 

you all on this panel. It has been a very thoughtful and very worthwhile panel, and let me begin where my former colleague, former 

Attorney General, now Senator Cornyn, began, by asking you, Mr. 

Norquist, your point really is— and I think it is a very profound 

and fundamental one—that enforcing a broken system, a bad law 

or set of laws in the sense that it is irrational and arbitrary is very 

difficult to do effectively. In other words enforcing a bad law is very 

difficult for law enforcement to do. 
123 

Mr. NORQUIST. Absolutely. And, again, the example that people 

can remember because most of us do not come in touch with real 

crimes day to day, but when we were all busy doing illegal driving 

because there was a 55-mile-an-hour speed limit, we realized that 

was an unreasonable law, it needed to be reformed. We reformed 

that law, and then we enforced the law. 

We have a need in this country and can welcome many more immigrants legally than we have, and this is a debate about how 

many immigrants and how welcoming we are going to be. We are 

losing internationally because we are not bringing—or allowing in 

many of the best and brightest who then go work somewhere else 

and start companies somewhere else. Forty percent of the Fortune 

500 CEOs that were born elsewhere or are the children of people 

who were born elsewhere, do you really want those in other countries? Why not here? This is a jobs program. This is about economic 

growth. And people misunderstand that, do not see it. They need 

to focus on the fact that this is how our country grew. 

The idea that more people make us poor is nonsense. We used 

to have 3 million people. We lived on farms. We now have 300 million people. We are not a hundred times poorer. We are more than 

100 times wealthier. More people in a free society increase wealth 

because people are an asset. When you hear, oh, we have got more 

oil and natural gas in North Dakota, we do not go, ‘‘Oh, that is too 

bad.’’ We say, ‘‘Good.’’ 

More people are an asset in a free society. And, yes, we can afford to be choosy on who we have in because so many people in the 

world would like to live here. 

Senator BLUMENTHAL. And I appreciate that point, and the potential contributions especially among the higher-skilled people are 

one of the reasons that I am supporting the I-squared legislation 

that my colleagues Senator Klobuchar and Senator Hatch have 

taken the lead on. 

Mr. NORQUIST. Very important legislation. 

Senator BLUMENTHAL. And I am very proud to be supporting it, 

and I am proud to welcome my former colleague, Mark Shurtleff, 

and thank you for your excellent testimony here today as well as 

your terrific work as a law enforcer. And your point that also it is 

a broken system and as a law enforcer as well as a moral imperative, you believe that this kind of reform is necessary. And I do not 

know whether you were here for the testimony that was provided 

on the prior panel about the supposed impossibility of these background checks working. I wonder if perhaps you have an opinion 

on that point. 

Mr. SHURTLEFF. Well, certainly they can work and will work. But 

there is no other answer to what we ought to do. Again, we have 

to deal in pragmatics in law enforcement, what is happening on the 

ground. For example, in Utah, we knew people were there driving 

without driver’s licenses. They are all over this country driving 

without driver’s licenses. But it became imperative, we felt, for law 

enforcement, knowing they are there, as a public safety measure, 

to make sure they took a test and understood the law. We gave 

them an authorization to drive. Eighty-five percent of those who we 

gave authorization to drive had insurance so that if they ran into 

us, their insurance would cover it. We knew where they were. It 
124 

was pragmatic. The same thing with in-State tuition in Utah. I 

have taught in fifth grade classes, kids how to stay away from 

gangs because the gang bangers, which are 70 percent Latino in 

Utah, way disproportionate to the population, are telling these 

kids, ‘‘You can never succeed, you cannot go to college, you will not 

be able to work, join the gang.’’ And I am telling the kids, ‘‘Stay 

away from gangs, stay away from drugs, study, and in Utah you 

get to pay in-State tuition just like the kid sitting next to you and 

who walks down in the graduation.’’ 

I mean, these are practical solutions, and that is the same thing 

with those who are working and dealing with those who are here, 

that we are able to do those background checks. And I think we 

can do it effectively. 

Senator BLUMENTHAL. Thank you. 

Let me finish with you, Mayor. You know, your story is a very 

inspiring one, and I think your being here to share it with us is 

enormously meaningful, and I want to thank you particularly for 

being here. I know you have a long career of public service but I 

think you have done us a great service by sharing with us. And I 

think it makes a point that we too often overlook, which is that 

people who want to come to America are often among the best and 

the brightest everywhere in the world, and they choose to come 

here because they want that opportunity. 

You know, when I am feeling down and discouraged, and I was 

pretty down and discouraged last week for various reasons, not the 

least of which were the disasters in Boston and Texas and then the 

vote here on gun safety, as I often do, I went to some immigration 

and naturalization ceremonies. And they are just enormously inspiring and uplifting because, as you know, people come with tears 

in their eyes, their families, their friends. It is a tremendous celebration. It is one of the high points of their life. And your story 

about your parents sending you to this country, involving huge sacrifice on their part, but knowing that it would be great for you as 

an opportunity is very inspiring, and I just want to thank you for 

being here today and for making that points. 

Mr. VIDAL. If I may just respond for a second, I know we hear 

today a lot of bad things about immigrants, but the overwhelming 

majority of them bring with them an iron will to succeed, a tireless, 

steady work ethic, a tremendous gratitude for being given a second 

chance in a new country, and that always—always—triggers in 

them a tremendous desire to contribute to this country. And I 

think we have seen that time and time again through generations. 

Senator BLUMENTHAL. And they appreciate citizenship in a way 

that many Americans do not. Thank you. 

Senator SCHUMER. Senator Lee—Senator Sessions. I am sorry. 

Senator SESSIONS. Thank you. 

Mr. Crane, thank you for your leadership. Mr. Crane represents 

7,000 Immigration and Customs Enforcement agents. He is a 

former marine. You can tell he has got the courage of his convictions. That association unanimously voted no confidence—and Mr. 

Morton, who is the head of the ICE group—because they have undermined their ability to enforce the law. They filed a lawsuit in 

Texas—or I think it is in Texas—a lawsuit in Federal court to try 
125 

to force them to allow them to follow the plain requirements of the 

law. 

So I think your criticisms of the President and your criticisms of 

this process, your repeated requests—you repeatedly requested the 

right to participate in these discussions, advise and give your opinion on how to craft a system that would actually work. You were 

denied that, and I thank you for your speaking out. I think it is 

very much important. 

We certainly had the pro-immigrant groups really active pushing. 

We had the people with similar interests, and that is, the business 

community to have more workers. But the law enforcement people 

who have got to actually enforce the law, make sure it stays on a 

sound basis, were shut out of the process. So I want to thank you 

for that. 

Dr. Camarota, I want you to talk with us a little bit about some 

of the statements that have been made here by others today. With 

regard to legal immigrants who have low education, high school or 

below high school education, that are legal, do we have data that 

shows how they compare to the same cohort of people in the country who are American citizens with the same educational level? 

And what are the implications of that? 

Mr. CAMAROTA. In general, the immigrants have relatively high 

rates of work, but also high rates of welfare use, and relatively low 

rates of Federal income tax and other tax liability. But as a general 

proposition, the less-educated immigrant or native do not come 

close to paying what they use in services. 

The Heritage Foundation, looking at both immigrant and native 

households together, estimated about $20,000 a year, and that was 

several years ago, the difference between what the least educated 

pay in taxes and use in services. And you can see that same phenomenon here. 

In my testimony, I have the statistics for less-educated natives, 

and in some ways, the immigrants look a little worse, but the important point is that both less-educated populations have this negative fiscal impact. 

Now, if I could just say, I do not think we should see this as 

some kind of moral defect or moral failing; rather, the way to see 

it is simply reflecting the realities of the U.S. economy, which does 

not offer much in opportunities to people with less education, including American citizens, and at the same time the existence of 

a well-developed—— 

Senator SESSIONS. Well, are we not counting kids in high school 

if they do not get a high school diploma and even try to go on further, they have a hard time getting a good-paying job in America? 

And should we not, therefore, when we seek to accept people legally into the country, should seek those who have education levels 

that will allow them to be most successful? 

Mr. CAMAROTA. Right, exactly. About 40 percent of all the high 

school dropouts in the United States today are foreign born, and 

very roughly, about half are legal and half illegal. 

Senator SESSIONS. Well, tell me about—let us say Social Security 

and Medicare. How will this law, if passed, impact the viability of 

those programs? Social Security now has a $7 trillion unfunded li-
126 

ability debt out there over the next 75 years. What would this do 

to it? 

Mr. CAMAROTA. Right, the thing to understand about Social Security is it is partly redistributive, paying more generous benefits 

back relative to what is paid in to the low income. So what this 

bill does, by allowing all the illegal immigrants to stay and get 

legal status, is it adds lots of new claimants on the Social Security 

system who are low income. 

Yes, we hope that their wages would rise with legalization, but 

it does not change the underlying educational attainment of the immigrants, and that is why it creates negative long-term implications for Social Security and Medicare, because you are adding lots 

of low-income people to that system. You cannot fund the welfare 

state and you cannot fund social services with low-income folks. It 

is just that simple. It does not make them bad. It does not make 

them evil. And it does not mean they do not work, and it does not 

mean they all came to get welfare. But the reality is what is on 

this chart, that there are very high use rates of public services 

from the less educated and very low tax contributions. 

Senator SESSIONS. Well, I just would say that there are possibilities for us to reach some agreement on higher-skill entrants and 

immigrants, but this bill does not make sufficient changes in that 

regard. 

Senator SCHUMER. Senator LEE. Senator LEE. Thank you very much, Mr. Chairman, and I want 

to thank the witnesses for coming and enduring our questioning. 

I especially want to thank and welcome my friend Mark 

Shurtleff. He has been a friend for a long time. I have known him 

as a lawyer, as a client, and just a fellow resident of Utah, so it 

is a pleasure to have you here. 

I am very concerned with the near-complete discretion that 

would be granted to the Secretary of Homeland Security through 

this bill, and especially in connection with the border security provisions of this bill. 

This certainty that should accompany the border security triggers tends to dissolve, I think, with the delegation of our decisionmaking authority to an agency that has demonstrated a certain 

level of disregard for congressional guidance—I should not call it 

‘‘congressional guidance.’’ It is law—particularly in the field of immigration. 

Many conservatives are genuinely willing to discuss fundamental 

immigration reforms, so long as that reform is founded on a truly 

secure border and a renewed commitment to enforce our current 

immigration laws. And I fear that while this bill does a lot of 

things and it does a lot of things that would be good, it does not 

do nearly enough to establish that foundation that I am talking 

about. And so I am always looking for ways that I can look to reform something, but to reform it to make it better, we have to understand what it is that is lacking. So I have got some questions 

that I would like to ask about this. 

First of all, Mr. Crane, from the date of enactment of this law, 

assuming it is enacted into law, until the end of the RPI period, 

this bill would seem to, as I understand it, prevent anyone from 

being detained or deported, even if apprehended, so long as they 
127 

appear prima facie eligible for RPI status under the bill. Is that 

your understanding? 

Mr. CRANE. Absolutely, Senator. 

Senator LEE. And is it also your understanding that the RPI period, once you factor in the automatic discretionary extension period that the Secretary is allowed to invoke, will take it up to 31⁄2

years? 

Mr. CRANE. I saw it as 3 years, sir, but it could be 31⁄2 years. 

Senator LEE. Okay. Now, you have testified before this Committee that the work of ICE agents has been hampered with a 

similar prohibition on pursuing cases against those who merely 

claim eligibility, you know, with nothing other than their own word 

at the moment for DACA. That is, once an alien in custody says 

that they qualify for DACA, ICE agents just cannot process them, 

that that shuts it down. 

Now, if this same approach is used by an illegal alien who has 

entered after the enactment of this law, assuming it is enacted into 

law, will not this 3- or 31⁄2-year period, whichever it is, amount to 

a de facto enforcement holiday during which time ICE will not be 

able to apprehend anyone once they claim to be eligible for RPI status? Am I understanding that correctly? Or am I missing something? 

Mr. CRANE. No. You nailed it, sir, and I mean, that is a big concern for us, too, because we feel that even the people that are now 

making the run on the border are going to be included into that 

group as well. 

Senator LEE. Now, the legislation also says that anyone in this 

category has to be given what the bill describes as a ‘‘reasonable 

opportunity’’ to file an RPI application. Do we know what that reasonable opportunity consists of? 

Mr. CRANE. I do not, sir. 

Senator LEE. Can you tell me, you know, based on your experience with law enforcement in this area—you know, you come to 

this with a unique background that enables you to sort of forecast 

where some of the problems might be and where some of the good 

things might be. In what ways can you tell me that this bill, the 

one we are now considering, will tend to improve or enhance your 

ability to enforce the laws? 

Mr. CRANE. Well, Senator, it is real difficult for us, I think, to 

say at this point because, like everybody else, we are struggling to 

read through this monster and reference back and forth in terms 

of what improvements it makes for us. And to be quite honest with 

you, I have not—I know there are some improvements in here, but 

I really have not seen a lot of them, and I am confused by some 

of these things with regards to the three misdemeanors and the 

CIMT standards, the Crimes Involving Moral Turpitude, that we 

have now that could be misdemeanor offenses, you know, one within 5 years of admission, two at any time thereafter. How does that 

mix in with these three misdemeanors? What are significant misdemeanors? That is not a legal term that we are familiar with. It 

is something we struggle with out in the field already. 

So this thing for us right now makes a lot more questions, I 

think, than it provides answers. So like I said, it is going to take 

a lot of digging through this. 
128 

You know, I have seen some things with regard to gang affiliation, the general concept, of course, we are all about that. We 

have been asking about it forever. But if I understand the legislation correctly, it seems to say things like if the person says, ‘‘I am 

no longer part of the gang,’’ you know, that they get to have this 

probationary period. I find that highly problematic. It seems to say 

that people under 18 years of age could possibly continue to be 

gang members. I do not know. It is very confusing. 

The DUI thing is something we have been asking for, for a long 

time. To give someone three DUI convictions, if I understand that 

correctly, I find that, again, extremely problematic. You know, 

these are folks that are driving in one ton of metal down the highway at high speeds. They are dangerous. It is happening a lot. We 

all know that. To give them three shots at that, a felony DUI, as 

a law enforcement officer I think that is a no-go. 

And when I look through this as well that these folks that are 

on probation, you know, first of all, to even get on the probationary 

status, if I understand this correctly, they get three misdemeanor 

criminal convictions that are not traffic offenses. And then once 

they get on the probation, we continue to let them get criminal convictions, if I understand it correctly. 

And so I guess—I know we are redefining a lot of words here, 

‘‘amnesty’’ and all these different things, but if that is the case, I 

think we have redefined ‘‘probation’’ as well. I do not understand 

why someone has committed a Federal crime by entering the 

United States illegally—and it is a crime, not just an administrative offense. It is a crime. And so we give them probation for that, 

and now we allow them to continue to break our Nation’s criminal 

laws and stay in the United States? Just I do not understand it. 

But like I said, I apologize. I wish I could give you a better answer, but we are struggling to sort through this thing. 

Senator LEE. Well, it is only 844 pages. 

Mr. CRANE. Yes. 

Senator LEE. Thank you, Chairman. 

Senator SCHUMER. Thank you. I would just correct the record. 

Any felony conviction or DWI—in almost all States by the time it 

is the third conviction, it is a felony. 

Mr. CRANE. Yes, sir. 

Senator SCHUMER. So it is rare that you would have three DWIs 

and people would not be deported. 

Senator Flake. 

Senator FLAKE. Thank you. 

Mr. Shurtleff, I want to commend what you have done in Utah 

with the Utah Compact. That has provided a blueprint and a model 

for a lot of people in Arizona who have been looking for a rational, 

humane approach to this problem. And so thanks for helping to 

lead the way there. 

Mr. Crane and Mr. Camarota, would you agree with those on the 

last panel who said that they would define amnesty as anything 

that allows anybody who has crossed the border illegally to stay 

under any form, whether it is RPI status or anything else? Is that 

what constitutes amnesty for both of you? 

Mr. CAMAROTA. Yes, anytime you set aside the rule of law and 

you give someone a chance to—some other special thing, whether 
129 

they pay a fine or something, that would be amnesty. That does not 

necessarily make it a bad idea, but I do believe in truth in advertising. 

Senator FLAKE. Mr. Crane, you would agree with that? It is amnesty as long as somebody—regardless of whether they are paying 

a fine or earning their way to legal status? 

Mr. CRANE. Well, in my statement I refer to it as ‘‘legal status.’’ 

I did not use the word ‘‘amnesty.’’ But if you are going to kind of 

put me to it, I guess, sir, I would have to say that I do believe that 

once you allow that person to stay in the United States after they 

have come here in violation of law, I would believe that most Americans would think that that would be an amnesty. 

Senator FLAKE. All right. 

Mr. CRANE. Thank you. 

Senator FLAKE. Mr. Norquist, your organization has a big grassroots presence around the country. I suppose since you have taken 

quite a public role here on this that you have heard from them. 

What are you hearing? 

Mr. NORQUIST. Look, people understand that the system we have 

is broken. We do not have the number of high-tech workers coming 

into the country that we need to. We do not have a guest worker 

program that we need to. We do not have a secure border. We need 

to have protection to know who is in the country. And people understand that if people have to go through paying fines, back taxes, 

that that is not amnesty or not nothing. It is a lot of money. Some 

people may be so rich they think a couple thousand dollars is nothing. But it is not for most people. And with earned legal status, 

they are willing—you see it in the polling data, but you certainly 

see it in the center-right movement. I mean, I see that the business 

community, the small businesses in particular—this is not a Fortune 500 issue. This is a small business issue. Farmers and dairymen and ranchers around the country have been explaining that 

they need this. You see this with the various communities of faith. 

All of the various communities of faith have focused on this and are 

saying that we need to move forward on this. 

So from a center-right perspective in terms of the Reagan Republicans around this country and conservatives, absolutely yes, it is 

very powerful. The arguments against it are the arguments of Malthus and the left, and they do not really carry a lot of weight with 

Reagan Republicans. 

If you want to go through the myths, one of the things that I 

used in my testimony today were the nine myths of immigration, 

which the Heritage Foundation put out. Julian Simon was their 

senior fellow at the time. This is back in the 1980s during Reagan’s 

Presidency, and it walks through all of the canards that you hear 

from people who did not like the Irish and did not like the Jews 

and did not like the Asians and did not like all the previous 

groups, and now we are told that this new group is going to be a 

problem coming into the country. Every time we have been through 

this, on whether they are criminals or all go on welfare or do not 

want to work, we have found that not to be the case. And the Heritage Foundation did a very good study under the Reagan years, 

and another extremely good one in 2006 which made the case that, 

of course, immigration and more immigration makes us a richer 
130 

country, not a poorer country, and helps out on questions of deficits 

and economic growth. 

So from a center-right perspective—and one of the groups we 

have talked to has been law enforcement as we go State to State. 

The Austin chief of police, a big advocate of comprehensive. When 

we were in Indianapolis, the same thing. The groups we always 

talk to are the police officers, the guys with badges, as well as the 

business community and the religious community. 

Senator FLAKE. Thank you. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you. I will do the last round. I know 

it has been a long day for the witnesses. 

First, this is to Ms. KEPHART. When the FBI was investigating 

Tamerlan Tsarnaev’s travel, it did not find his trip to Russia—this 

is after he got back—because Aeroflot, the Russian airline, typed 

in his name incorrectly. Our bill requires that travel exit data be 

based by swiping the passport or making sure it is machine readable upon exit. 

DHS says this would have helped the FBI in this case. Do you 

agree? 

Ms. KEPHART. Yes, absolutely. 

Senator SCHUMER. Okay, good. That is one example of many 

where we are tightening things up. That would have been relevant 

since people want to focus on Boston. 

Now, to Mr. Camarota, I mentioned this to the previous witness 

from your group. I guess you are the second witness from CIS. You 

folks are not only against illegal—you are against illegal immigration, but you are for reducing—or you want to reduce the amount 

of illegal immigration, so do we. And we go to great pains in our 

bill to try and do that. But you also want to reduce legal immigration. Is that correct? 

Mr. CAMAROTA. Yes, we basically come down on the issue where 

Barbara Jordan, your former colleague, did when she headed a 

commission in the 1990s that a more moderate pace of immigration 

would make sense economically and so forth. 

Senator SCHUMER. Okay. Now, let me ask you—you have a lot 

of those economic levels. What do you think of the H–1B and the 

high-tech visas that we have proposed? Are you against that part 

of our proposal? 

Mr. CAMAROTA. Yes, I think that you—— 

Senator SCHUMER. You are? You are against it? 

Mr. CAMAROTA. No, no. Let me say this. You can allow in highly 

skilled workers and not worry about a fiscal consequence. Something very different from letting people in with very little education. 

Now, there might be other concerns. Are you displacing Americans? Are you discouraging Americans from going in? Are you making American business increasingly indifferent to what is going on 

in the American education system? There are maybe a lot of negatives. But you do not have to worry about a fiscal consequence. 

Senator SCHUMER. And you saw that we do make provisions in 

there that they have to hire Americans first. So just let me ask 

you, I mean—Mr. Crane says he is having trouble going through 

it. I understand it is a long and complicated bill. It has been online 
131 

for 6 days. It will be online for 3, 4 weeks before we mark up. That 

is unusual for a complicated bill to be out there and available for 

as long as it is. 

But, Mr. Camarota, from what you have seen, if you had to say 

you support or do not support the H–1B sections of our proposal— 

well, let me ask you this: Would you support giving a green card 

to any foreigner who graduates, gets an M.A. or Ph.D. in STEM in 

an American university? 

Mr. CAMAROTA. Sure, it is about 5,000 or 6,000 people a year, 

and we can give all those green cards—— 

Senator SCHUMER. It is more than that. 

Mr. CAMAROTA. For just Ph.D.s. We can certainly do that. An 

M.A.—— 

Senator SCHUMER. We do it for M.A.s. 

Mr. CAMAROTA. Is a very different thing. Ph.D.s is rigorous and 

specialized. 

Senator SCHUMER. Okay. So you would do it for Ph.D.s. 

Mr. CAMAROTA. Sure. But they mostly all stay now anyway. 

Senator SCHUMER. Okay. So there is one part of the bill we agree 

on. 

Mr. CAMAROTA. It would not be a big issue. 

Senator SCHUMER. How about for M.A.s? You do not agree with 

that? 

Mr. CAMAROTA. No, because obviously an M.A. is a very different 

kind—having had both, it is very different, and you can easily 

imagine—— 

Senator SCHUMER. This is just in STEM. Just in STEM—— 

Mr. CAMAROTA. Right. 

Senator SCHUMER [continuing]. Science, technology, engineering—— 

Mr. CAMAROTA. But you can easily imagine a kind of visa mill 

there where people are just issuing M.A.s exclusively so that someone could get a visa. I do not think that would make sense. But 

for Ph.D.s, sure, you can give them all green cards. 

Senator SCHUMER. Okay. And—well, I think we have gone over 

time. I have a minute left, and I am going to—do you want, Senator Lee—because I know—— 

Senator LEE. If we could have one more round. 

Senator SCHUMER. Well, we have not had rounds, and the Chair 

has to be gone. We said we would finish at 5:00. But I will give 

you one more question. How is that? And you can submit—by the 

way, the record will stay open until Wednesday. Any Member can 

submit questions in writing, which have to be answered—a week 

later? 

Okay. Questions have to be submitted by 5 o’clock Wednesday, 

additional questions. But go ahead, Senator Lee. 

Senator LEE. Okay. Ms. Kephart, what specific border security 

measures does this bill require in the non-high-risk sectors? 

Ms. KEPHART. I have also struggled to review the bill in that 

level of detail. In terms of the non—the other six sectors, they are 

not emphasized, so what I do not understand about the bill is why 

are we saying three of nine. Why are we not saying all the sectors 

need to attain a 90-percent effectiveness rate and then make that 
132 

effectiveness rate something that we can actually have a 100-percent detection rate—which we cannot right now. 

And also, I have another problem with the effectiveness rate, too. 

If we are only focusing on apprehensions and turnbacks, what happens to the Border Patrol work on contraband, on weapons, on 

drug loads? Does that roll back and because a non-priority because 

they have to focus on the apprehension number? 

So I added that in as well, Chairman. I hope that is okay. But 

I do not understand why we do not have it as a broad-based—every 

sector can be a high risk because we know that the flows move. 

And it is a very stiff rubric as well, because it is only annual. That 

shift can only happen between sectors as determining them high 

risk on an annual basis. Smugglers move every few weeks. 

Senator LEE. Okay. Thank you very much. 

Thank you, Mr. Chairman. 

Senator SCHUMER. I would just add that we do not just add new 

responsibilities but $3.5 billion for personnel, detection equipment, 

drones, you name it, which is a lot. We added about six—Senator 

McCain and I added about $600 million to border in 2010. The 

overall effectiveness rate went up from 68 to 82. We are adding 3.5 

times that, if you include the fence—or 3 times that, and if you include the fence money that Senator Rubio pushed in the bill, that 

is 4.5 billion, 4.5 times that. And so most experts think you are 

going to get a much higher effective rate without deterring people 

from doing those other charges. We are not just giving them new 

responsibilities. We are giving them new personnel, new equipment, things like that. 

With that, I want to thank my colleagues for staying. I want to 

thank our witnesses. It has been a long day. I want to thank Chairman LEAHY. This has been a thorough, extensive hearing. All different points of view were able to be spoken about. And tomorrow 

at 9:30, Secretary Napolitano will be here. Again, until Wednesday 

evening to submit questions in writing, and then the panelists will 

have a week to answer those, long before we go to markup in early 

May. 

With that, the hearing is adjourned. 

[Whereupon, at 5:16 p.m., the Committee was adjourned.] 

[Additional material submitted for the record for Day 1 follows 

Day 2 of the hearing.] 
(133) 

THE BORDER SECURITY, ECONOMIC 

OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S. 744 

TUESDAY, APRIL 23, 2013 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:33 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Feinstein, Schumer, Durbin, Whitehouse, 

Klobuchar, Franken, Coons, Blumenthal, Hirono, Grassley, Hatch, 

Sessions, Graham, Cornyn, Lee, Cruz and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning everybody. I know we are running a bit of a tight schedule. The Secretary has to testify on Appropriations later today, but I do want to commend you, Madam 

Secretary, and the men and women of the Department of Homeland Security who worked so hard on the coordinated national security effort in Boston. 

I have had middle of the night, early morning, middle of the day 

briefings on what has happened. The way your department, local 

and State police, the FBI worked together is a model for the rest 

of the world, especially how quickly everybody was able to move. 

The Patriot Day bombing, identification and successful capture of 

the remaining suspect of course is why you were not here that day 

when we talked. I well understood what your schedule looked like 

and it was time for you to be in the command post. 

Now, a number of Republican senators were not part of the bipartisan legislative effort for comprehensive immigration reform 

demanded in March that you return to the Committee to testify 

about the workability of this. You had been here in February and 

you testified extensively about this effort, but I thank you and I 

asked you to come back and you said you were perfectly willing to. 

I think it is a testimony to your longstanding commitment to reforming the immigration system, you are willing to return just two 

months after your last appearance here and of course some sleepless nights with what has happened in the last few days. 

It would be an easy thing to just talk about last week. I would 

remind all Senators that this is their opportunity to ask you di-
134 

rectly about the Border Security, Economic Opportunity, and Immigration Modernization Act which of course is why you are here. 

This is a member of the cabinet that is going to be directly involved in implementing this legislation. I repeat, as I have said before, that you and President Obama have done more in the administration’s first four years to enforce immigration laws and 

strengthen border security than in years leading up to this administration. 

You have more than 21,000 agents in the border patrol, more 

than any point in history, new technologies have been deployed to 

the border. Apprehension along the border is the lowest we have 

seen in decades because people are deterred from trying to cross. 

According to the report by the Migration Policy Institute, the 

United States now spends more money on immigration enforcement 

agencies than it does in all our major Federal law enforcement put 

together. I think it is time to start talking about reforming the immigration system. 

We are doing more enforcement than ever before, but that should 

not be a bar to having good immigration reform. It is long past 

time for us to reform our immigration system. We need an immigration system that lives up to American values, one that allows 

families to be reunited and safe, one that treats individuals with 

humanity and respects due process and civil liberties, one that 

shields the most vulnerable among us, including children and 

crime victims and asylum seekers and refugees, one that helps to 

reinvigorate our economy and enrich our communities. 

I have commended Senators Schumer and McCain, Durbin, 

Graham, Menendez, Rubio, Bennett, Flake and Feinstein for their 

extraordinary work here. I am concerned that what some are calling triggers could long delay green cards for those who want to 

make full and contributing participation in our society. I do not 

want people to move out of their shadows but then be stuck in 

some kind of an underclass once they have moved out of the shadows, just as we should not fault DREAMers who are brought here 

as children. We should not make people’s fates and future status 

depend on border enforcement conditions over which they have no 

control. 

I am disappointed the legislation has not treated all American 

families equally. I believe we have to end the discrimination to gay 

and lesbian families facing our immigration laws. I am concerned 

about changing the visa system for siblings and I am concerned 

about how the new point-based visa system will work in practice. 

I really have to question whether spending billions more on a fence 

between the United States and Mexico is really the best use of taxpayer dollars in a country that we are furloughing air traffic controllers because we cannot pay for them. 

Throughout our history, immigration has been an ongoing source 

of renewal of our spirt of our creativity, our economic strength. 

Young students brought to this country by their loving parents 

seeking a better life, hardworking men and women who play by the 

rules supporting our farmers, innovating for our technology companies or creating businesses of their own, Google, Intel, Yahoo, other 

companies that then hire hundreds of thousands of Americans. Our 

Nation continues to benefit from immigrants. So let us uphold the 
135 

fundamental American values of family, hard work and fairness. 

Values my parents inculcated in their children and my immigrant 

grandparents inculcated in theirs. 

The dysfunction in our current immigration system affects all of 

us. It is time to fix it. The opportunity is now. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Without repeating the Chairman, I thank you 

for the work that you were involved in in Boston as well. We welcome you, Madam Secretary. I appreciate your being here today to 

discuss the immigration bill that this Committee will be taking up 

in about 16 days. 

The bill before us is a starting point. Most, if not all, of the Members of the Group of Eight have acknowledged that the bill is not 

perfect. It will go through an amendment process. I am encouraged 

to see that one cosponsor of the bill is taking suggestions on his 

website of how to improve the legislation. We hope to have the opportunity to do just that. There are 92 other Senators that must 

get their chance to amend and improve the bill. 

As I said yesterday, we have a duty to protect the borders and 

the sovereignty of this country, but I am concerned that the bill we 

are discussing repeats the mistakes of the past and will not secure 

the border and stop the flow of illegal migration. 

Yesterday I brought up the border security language contained in 

the bill. Not one person disputed the fact that legalization begins 

upon submission of both a southern border security and fencing 

strategy. Thus, the undocumented become legal after the plans are 

submitted despite the potential that the plan could be flawed and 

could be inadequate. 

Once the Secretary certifies that the security and fencing plans 

are substantially deployed, operational and completed, green cards 

are allocated to those here illegally. There is not much of a definition of substantially in the bill. Agricultural workers and Dream 

Act youth however are put on a different and expedited path. 

If enacted today, the bill would provide no pressure on this Secretary or even any future Secretary to secure the borders. 

Madam Secretary, you have stated that the border is stronger 

than ever before. You have even indicated that Congress should not 

hold up legalization by adding border security measures and requiring them to be a trigger for the program. Every Senator that 

I have heard on this subject has said that borders must be secured. 

Short of that, this bill makes the same mistake that we did in 1986 

and surely we do not want to screw up like we did 25 years ago. 

I am interested in hearing from you, Madam Secretary, about 

what problems the bill fixes in our current immigration system, 

aside from legalizing those who are here illegally and potentially 

for their family members who have yet to arrive and the clearing 

of backlogs, what does the bill do to fix the system? 

I am concerned that the bill provides unfettered and unchecked 

authority to you and your department and your successors. On al-
136 

most every page there is a language that allows the Secretary to 

waive certain provisions of the law. I have not encountered it yet 

but I have heard every other page has some sort of a waiver in it, 

so that could add up to 400. 

Worse yet, the Secretary may define terms as she sees fit. The 

Secretary has $6.5 billion immediately at disposal with no accountability to Congress, she can excuse certain behavior, determine 

what document or evidence is successful, exempt various criminal 

actions as grounds of inadmissability and of course it reminds me 

as I said yesterday of the 1,693 delegations of authority in the 

Health Care Reform Bill that makes it almost impossible for the 

average citizen to understand or predict how the law would work. 

I think it does not apply just to this bill, but we have got a situation that Congress ought to legislate more and delegate less. There 

is a lot of talk about immigration reform in the light of recent terrorism cases. I have not advocated that we quit talking about immigration reform, rather I am advocating that we carefully review 

the immigration laws and the administrative policies in place to 

ensure that we are addressing critical national security issues. 

The tragic events that occurred in Boston and the potential terrorist attacks of the U.S. Canadian railroad are reminders that our 

immigration system is directly related to our sovereignty and national security matters. 

For example, we know that the 9/11 hijackers abused our immigration system by overstaying their student visas. We also know 

that people enter illegally and stay below the radar. It has been reported that the older Boston bomber traveled to Russia and his 

name was misspelled on his airline ticket, so how could authorities 

not realize that he had departed the United States? 

The bill before us weakens the entry/exit system because it does 

not require biometric identifiers and does not deploy a biometric 

system to land ports. If this bill were to pass as is, we will continue 

to rely on airline personnel to properly type a name into a computer and not on biometric identifiers. 

Moreover, if the background checks on the 12 million people who 

are here illegally are anything like they were in the Boston bomber, we are in serious trouble. If these two individuals used our immigration system to assist their attacks, it is important to our ongoing discussion. Moreover, if the background checks on the 12 million people who are here illegally are riddled with problems that 

appear to be involved in this case, it raises serious questions about 

the Department’s ability to properly investigate such individuals. 

Yesterday we heard testimony that the immigration bill would 

weaken asylum law. The asylum fraud is a serious problem. Courts 

are clogged with asylum cases and it is no secret that terrorists are 

trying to exploit the system. 

The bill would do away with one year bar that makes aliens 

come forward in a reasonable time frame if they are seeking asylum. It also allows any individual whose case was ever denied 

based on the one year bar to get their case reopened. Those who 

file frivolous asylum applications can still apply for legalization 

program despite the current provision that bars any relief under 

the immigration law. 
137 

One witness also testified that the bill provides exemptions for 

certain criminals, making some eligible for legalization under this 

bill. Those who have been convicted of serious offenses may still 

have the ability to apply for the registered provisional immigrant 

status. 

We also heard testimony from an immigration and customs enforcement agent about the inability of our agents in the field to do 

their jobs. The group that devised this bill refused to hear from enforcement agencies. It seems unthinkable that law enforcement 

would be left out of the room when the bill was put together. 

Finally, nothing in the bill deals with student visas or improving 

the way we oversee schools who accept foreign nationals. Yesterday 

over a decade after 9/11, a terrorism case has come to light that 

may involve an individual who overstayed student visas. These are 

important national security matters and are worthy of our discussion as we work on the comprehensive immigration bill. I look forward to the testimony today. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Madam Secretary, it is over to 

you. 

STATEMENT OF HON. JANET NAPOLITANO, SECRETARY, U.S. 

DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC 

Secretary NAPOLITANO. Thank you, Chairman Leahy, Senator 

Grassley, Members of the Committee. I appreciate the opportunity 

to appear again to discuss the need for common sense comprehensive immigration reform. First let me say a few words about the 

attack in Boston. 

Our thoughts and prayers remain with the victims, their families 

and with the City of Boston. DHS continues to support the ongoing 

investigation, working closely with the FBI, our Federal and our 

State and local partners, and I know all of us here are committed 

to finding out why this happened, what more we can do to prevent 

attacks like this in the future and making sure those responsible 

for this unconscionable act of terror face justice. 

We will learn lessons from this attack, just as we have from past 

instances of terrorism and violent extremism. We will apply those, 

we will emerge even stronger. In this case, law enforcement at all 

levels joined together and shared knowledge, expertise and resources. Many had been specifically trained in improvised explosive 

device threats and many had exercised for this very type of scenario. 

The response was swift, effective, and in many ways will serve 

as a model for the future. I think the people of Boston and the 

greater Boston area showed tremendous resilience over the past 

week and so did America. 

Today, after ten years of investments and training and equipment and improved information sharing, our cities and communities and our Nation are stronger, more prepared and engaged 

and better equipped to address a range of threats. 

This legislation will build on these gains, strengthening both our 

overall national security posture and our border security. The draft 

bill captures the core principles annunciated by President Obama 
138 

in Las Vegas and reflects the bipartisan spirit necessary to achieve 

comprehensive immigration reform. 

The bipartisan work reflected in this bill will strengthen security 

at our borders by funding the continued deployment of manpower, 

infrastructure, air cover and proven effective surveillance technologies along the highest traffic areas of the southwest border. 

These efforts have already significantly reduced illegal immigration and increased our seizures of drugs and contraband. They 

must be strengthened and sustained. The draft bill does this. The 

bill also helps eliminate the jobs magnet that fuels illegal immigration. It holds employers accountable for knowingly hiring undocumented workers and requires the mandatory use of employment 

verification. 

Employment verification actually supports strong border security. It also supports the integrity of our immigration system and 

the American economy by providing businesses with a clear, free 

and efficient means to determine whether their employees are eligible to work here. 

By helping employers ensure their work force is legal, we promote fairness, prevent illegal hiring that serves as a magnet for 

undocumented migration across our borders, and we protect workers from exploitation. 

Consistent with the President’s principles, the bill also provides 

a pathway to earn citizenship for the millions of individuals currently in our country illegally. We must bring these people out of 

the shadows. Many have been here for years raising families, paying taxes and contributing to our communities and to our economy. 

Knowing who they are is critical to public safety. Indeed as we 

just saw in Boston, information from our legal immigration system 

often supports response and investigation. It must be evident from 

the outset that there is a pathway to citizenship, one that will not 

be quick or easy, but that will be fair and attainable. 

Individuals will need to comply with many requirements, including documenting a history of work, paying penalties and taxes and 

learning English. DREAMers and immigrant farm workers will 

also be included, and those who complete the rigorous requirements will be able to achieve lawful, permanent resident status 

more quickly. 

Lastly, the bill will improve our legal immigration system. It 

raises the arbitrarily low caps on legal visas so that the visa system as a whole better matches the needs of our growing economy. 

It continues to protect vulnerable immigrants, including victims of 

crime and victims of domestic violence and it creates new temporary worker programs to enable critical industries to address 

labor shortages while protecting American workers. 

Businesses of all kinds and sizes must be able to find and maintain a stable, legal workforce if our economy is to continue to grow. 

As we make it easier for businesses to get the workers they need 

legally and more difficult for undocumented workers to find jobs, 

this will relieve pressure on the border and reduce illegal flows. 

The majority of Americans support these common sense steps 

and DHS is ready to implement them within the time lines that 

the draft bill provides. We can and we will achieve the core provisions of the bill. The time to modernize our immigration system is 
139 

now. We stand ready to work with this Committee and with the 

Congress to achieve this important goal. 

The introduction of this legislation is indeed a milestone, so I 

thank the Committee for your progress in developing a comprehensive immigration package. I look forward to continuing to work 

with you and to answering your questions today. Thank you, Mr. 

Chairman. 

[The prepared statement of Secretary Napolitano appears as a 

submission for the record.] 

Chairman LEAHY. Well, thank you and thank you again for what 

is an extraordinary busy time in being here. The bipartisan bill before us requires an additional $1.5 billion be spent to build more 

portions of a fence along the southern border. 

We built 650 miles of fence along the border. DHS estimates that cost at $2.5 billion. I remember you saying in 2005, show me a 50 

foot wall and I will show a 51 foot ladder. More fencing would not 

have done anything about the case in Boston. 

We have limited resources. Considering that significant gains have been made in the last 4 years, is $1.5 billion the most cost 

effective way to spend what are, after all, limited resources? 

Secretary NAPOLITANO. Mr. Chairman, obviously if the Congress 

decides that is where they want to put some money, we will comply. But I will share with you that we would prefer having money 

not so designated so that we can look at technologies, they can be 

ground based, air based, what have you, manpower, other needs 

that may be more fitting to actually prevent illegal flows across the 

southwest border. 

If we had our druthers, we would not so designate a fence fund 

per se. 

Chairman LEAHY. You would like flexibility? 

Secretary NAPOLITANO. We would like flexibility. 

Chairman LEAHY. I assume that there is an annual maintenance 

cost to $1.5 billion worth of fence? 

Secretary NAPOLITANO. Yes. There is operation and maintenance 

cost, and when you drive the fence or ride the fence, there are holes 

put in it, et cetera, et cetera. We are very good at building the infrastructure now. We know what works better than what we started with, but it is not just building, it is maintaining. 

Chairman LEAHY. We also have environmental questions, wildlife 

questions, people’s property along the border. 

Secretary NAPOLITANO. Yes. In fact the last remaining mile that 

we have not completed of the fence that the border patrol has designated has not been completed because it is still tied up in property litigation. 

Chairman LEAHY. Former Secretary Chertoff waived a range of 

Federal environmental and historic preservation and other laws for 

purposes of fence construction. This bill also provides waiver authority. 

What goes into your thinking of when and if you waive that authority? 

Secretary NAPOLITANO. Well, it is a very careful process and I 

will begin by saying that we now have MOUs with the Department 

of Agriculture, Department of Interior concerning the Federal lands 

that are along the border that grant us, for example, access to 
140 

build infrastructure, access if we are in pursuit and those sorts of 

things. So some of those logistical problems that existed before 

have really been worked out. 

Obviously when you build a fence and it goes right through the 

middle of a downtown area or right through a university campus, 

and we have had those situations, there are lots of values to be 

considered. 

Chairman LEAHY. When you were here a couple of months ago 

speaking of immigration, I explained my concern about proposals 

and where citizenship is always over the next mountain. I want the 

pathway to be clear. I want citizenship not to be just available but 

attainable. Sometimes they are two different things. 

This legislation has several triggers that have to be met before 

people could earn green cards. People come forward, wait for ten 

years to get their green cards, but then they go in a state of limbo. 

That worries me. 

Are the triggers in the legislation truly attainable? 

Secretary NAPOLITANO. As I review the legislation, there are 

really three triggers. One is the submission of the plans and their 

substantial completion as Senator Grassley referred to, one is the 

implementation of a national employer verification system, and one 

is the implementation of an electronic entry/exit system. Those particular triggers, if you want to call them that, are already part of 

our plans and I believe that we can satisfy them in the upcoming 

years. 

Chairman LEAHY. Well, and lastly I want to keep on time here. 

In the wake of the Boston bombings, some have raised concerns 

about the security screenings we have in place for those that are 

seeking asylum here in the United States. 

Now, I do not believe the Boston bombing is a reason to stop 

progress or consideration of this legislation. I trust our law enforcement people to be able to handle that case and our courts are the 

best in the world. I have no worry about that, but even those who 

oppose this legislation, they have got to recognize there are several 

provisions to make our country safer. 

Can you tell us about the security screening that is currently in 

place for refugees and asylum seekers and does this legislation help 

or hinder that? 

Secretary NAPOLITANO. Well, if I might, let me start with what 

the process is now and share with the Committee that over the 

past four years, we have increased both the number and the coverage of the vetting that goes on. But if someone is seeking asylum, 

they first have a so-called screening interview to see whether they 

have presented any sort of credible fear of persecution. 

That includes collection of biographic information and biometric 

information. That is all run against all law enforcement holdings 

and also the holdings of the NCTC and also virtually every DOD 

holding. 

At the second point in the process, they submit to a full scale 

interview. This can be several hours. It is usually accompanied by 

affidavits and other supporting documentation. One of the things 

we do there, by the way, is we re-fingerprint the individual to 

make sure it is the same individual who originally presented, so we 
141 

have identify verification. We again vet, we run through all the 

databases and so forth. 

After the presentation to the asylum officer, there is review by 

a supervisory officer as well to look at consistency. All the way 

through they are looking at things like country conditions, other information that we gather. 

After a year, you can convert to LPR status, green card status. 

At that point you are vetted yet again, run against all the law enforcement databases, all the NCTC databases and so forth. 

After five years, you can apply for naturalization. At that point, 

you are vetted again and you are re-interviewed again. Lastly, if 

you are granted naturalization between then and the actual ceremony, right before the ceremony we re-vet everyone for a final 

time. That is the current situation. 

The existing bill builds on that. One of the important things the 

existing bill does, quite frankly, from a law enforcement perspective is bringing all of the people out of the shadows who are currently in the shadows. That RPI process is very, very important. 

Chairman LEAHY. Thank you. 

Senator Grassley. 

Senator GRASSLEY. We heard testimony yesterday and I think I would have to say 

that I share this feeling that there is principle behind this legislation of legalize now, enforce later. Now, you can disagree with that, 

but that is where I am coming from. 

Secretary NAPOLITANO. Yes. 

Senator GRASSLEY. I also assume that you read the bill and if I 

am wrong on that, let me know because my questions come to some 

specifics within the bill. 

Do you agree with my opening statement that upon enactment, 

the bill simply requires security and fencing strategy to be submitted by your department before legalization begins? 

Secretary NAPOLITANO. It requires submittal of the plans both for 

infrastructure and for border security, two different plans—— 

Senator GRASSLEY. Yes. 

Secretary NAPOLITANO. And substantial completion. 

Senator GRASSLEY. All right. Can you tell the American people now why they should 

trust the purposes of legislation to secure the border after 12 million people get legal status, driver’s licenses, work permits and the 

ability to live and work freely in the country? 

Secretary NAPOLITANO. Well, I think a couple of very important 

things. Number one, the bill builds on the very large investment 

the country has already made in the southwest border and sustains 

that. I can say as a former Governor and Attorney General from 

that area, it is the sustainment part that is so very important because that is where we have experienced gaps in the past, so the 

bill guarantees that we build on that. 

Secondly, the bill actually supports border security in a way I 

suggested in my opening comments, which is to say two major drivers of illegal migration across that southwest border are labor and 

the fact that it takes so long to get a legal visa. The bill deals with 

both of those problems in a way that gives us more measurements, 

more metrics, more identities, more things that we can use from 
142 

a law enforcement purpose, so it actually supports in that fashion 

the border security measures already in place. 

Senator GRASSLEY. The bill prohibits immigration officers from 

removing aliens who ‘‘appear eligible’’ for legalization until a final 

decision has been made on the application. 

Does this bill tie the hands of immigration agents in the same 

way that the 1986 amnesty prevented them from enforcing the immigration laws? 

Secretary NAPOLITANO. I do not believe so, Senator. I think that 

what the bill does in effect say get the RPI process up and running, 

move it as quickly as possible, do the background checks, do the 

security checks, get the identifications out and during that period 

do not remove somebody who is not a priority individual. 

Senator GRASSLEY. Yes. I thank you for starting out your statement in reference to the Boston situation, so I feel comfortable asking this question. 

Several media outlets have reported that two individuals responsible for the tragic bombings were immigrants from Chechnya. Before the brothers became the focus of the investigation, authorities 

questioned a Saudi student who reportedly was on a terrorist 

watch list. 

I sent a letter to you this morning asking for answers to questions about the bombers and how they interacted with your agency. 

I trust that you would promptly respond given the impact that this 

could have on the immigration debate questions. 

With regard to the Saudi student, was he on a watch list? And 

if so, how did he obtain a student visa? 

Secretary NAPOLITANO. He was not on a watch list. What happened is this student, really when you back it out, he was in the 

wrong place at the wrong time. He was never a subject. He was 

never even really a person of interest. Because he was being interviewed, he was at that point put on a watch list and then when 

it was quickly determined he had nothing to do with the bombing, 

the watch listing status was removed. 

Senator GRASSLEY. All right. In regard to the older brother of the 

two people, was your department aware of his travels to Russia? 

If you were not, the reason. 

Secretary NAPOLITANO. The travel in 2012 you are referring to? 

Senator GRASSLEY. Yes. 

Secretary NAPOLITANO. Yes, the system pinged when he was 

leaving the United States. By the time he returned, all investigations had been—the matter had been closed. 

Senator GRASSLEY. Is it true that his identity document did not 

match his airline ticket? If so, why did TSA miss the discrepancy? 

Secretary NAPOLITANO. There was a mismatch there. By the way, 

the bill will help with this because it requires that passports be 

electronically readable as opposed to having to be manually input. 

It really does a good job of getting human error, to the extent it 

exists, out of the process. 

But even with the misspelling, under our current system there 

are redundancies, and so the system did ping when he was leaving 

the United States. 

Senator GRASSLEY. I am done, but can I make a correction in my 

statement? 
143 

Chairman LEAHY. Certainly. 

Senator GRASSLEY. It might leave a mis-impression. Where I said 

yesterday over a decade after 9/11 a terrorism case has come to 

light that may involve an individual who overstayed his student 

visa, I would have to say we just simply do not know. So my statement was incorrect on that point. 

Chairman LEAHY. Thank you. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much. Welcome, Madam Secretary. I have five questions, so I am going to try and go very fast. 

Secretary NAPOLITANO. I will try to answer very fast. 

Senator FEINSTEIN. Great. The first one is on E–Verify. It is our 

understanding from your testimony in February that you are planning to develop a pilot E–Verify program for agriculture. 

I asked Chuck Connor who was representing the agricultural industry yesterday if they had heard of this and they had not. When 

will this begin and who is responsible for that implementation? 

Secretary NAPOLITANO. It is under the implementation of CIS. 

We are exploring things like mobile sites that can be moved around 

to different fields and other rural areas that may not have offices. 

My dream would be to actually have some sort of app. But the bill, 

as you know, does not have the E–Verify for ag workers until year 

four. 

I am very comfortable sitting here today telling you that by year 

four we will have multiple ways by which employers can verify 

legal presence for work purposes. 

Senator FEINSTEIN. Good. Will you have your people talk with 

Mr. Connor? 

Secretary NAPOLITANO. Yes. 

Senator FEINSTEIN. Thank you. Flight schools. A GAO report released last year found that many flight schools obtained student 

and exchange visitor program certification from Immigration and 

Customs Enforcement without being certified by the FAA. 

According to GAO, 167 out of 434 flight training schools, 38 percent today do not have the required FAA certification. I am told 

ICE is often unaware of instances when the FAA revokes certification for flight training providers. 

I understand that ICE is working with FAA to address this issue. 

What updates and assurances can you provide about ICE’s efforts 

to improve its communication with the FAA to address this issue? 

Secretary NAPOLITANO. I think we are very far along. By the 

way, Senator, we are also moving from SEVIS I to SEVIS II which 

is a new system governing education institutions that educate student visa holders. This will also help solve that problem. 

Senator FEINSTEIN. Yes, good. I will get to that in a minute. The 

asylum screening process in this bill. Under the present system as 

I understand it, applicants for asylum must undergo a credible fear 

interview to determine whether the applicant has a credible fear of 

persecution in his or her county of origin. 

If the screening officer determines that the individual has a credible fear, the application moves along for further consideration. 

This bill as I understand it streamlines the refugee and asylum 

screening process partly by allowing a screening officer to grant 

asylum immediately following a screening interview. 
144 

If this provision were to become law, how would the Department 

ensure that asylum applicants are adequately screened for national 

security threats? Current DHS regulations permit USCIS to confer 

with the State Department to verify the voracity of an asylum applicant’s claims. 

To what extent does USCIS use that authority and are there barriers that prevent full information sharing between the agencies? 

My concern is that it is not streamlined to the point where the 

checks are not adequate. 

Secretary NAPOLITANO. First as I mentioned, we have greatly improved the information available from the get go in terms of what 

databases are checked. The law enforcement, the national security 

databases and so forth, and that starts from the beginning when 

we collect the initial biographic and biometric information. 

Secondly, with respect to the State Department, we have extensive and very good relations with the State Department in the refugee asylum area where the issue is credible fear. 

Senator FEINSTEIN. All right, but you will check whether that is 

an accurate statement, whether credible fear exists? 

Secretary NAPOLITANO. Yes. We do not take it at face value. 

There are a number of ways we look into it. 

Senator FEINSTEIN. All right. Well, the concern is that this bill 

truncates the process as I understand it. I would just ask you to 

look at that. 

Now let me turn to what you just mentioned, the student visa 

fraud. This is something that I have been interested in since 9/11 

when there was a lot of it in the country. 

I just looked at some schools going back to 2008, most in 2011, 

some 14 schools, I am sorry to say 8 of them in my State of California where there are very suspicious activities going on. 

Now, if I understand this correctly, you have got 10,500 schools 

approved by DHS to accept non-immigrant students and exchange 

visitors. Last year Senator Schumer and I sent a letter to Immigration and Customs Enforcement to express our concerns about student visa fraud and the lack of information sharing among various 

Federal agencies. 

The response letter that we received noted that ICE is developing a new database system called SEVIS II that will improve, 

theoretically, ICE’s ability to monitor international students and 

the schools they attend. 

SEVIS II is expected to improve the ability to avoid fraud, of 

which there still is plenty. Is it on track to be fully operational by 

2013 when this bill goes into effect? 

Secretary NAPOLITANO. That is my understanding, yes, Senator. 

Senator FEINSTEIN. We will count on it. 

Secretary NAPOLITANO. It needs to be part of this. Again, it goes 

to the fact that this bill actually improves and builds on the security matters we already have at hand. So yes, we are well under 

way on SEVIS II and my anticipation is yes, it will be implemented 

by the end of the year. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. So everybody knows, we are going to Senator 

Cornyn next and then Senator Klobuchar and then Senator LEE. 

Senator Cornyn. 
145 

Senator CORNYN. Good morning, Madam Secretary. I want to 

start with something that I agree with you on and that is the set 

aside for border fencing. Texas is different, as you know, from Arizona and California and other places. While the border patrol has 

recommended some tactical use of fencing there, I do not believe 

and I do not think you believe, you can speak for yourself, that 

building a fence across a 2,000 mile southern border is the answer, 

that it is really a combination of tactical infrastructure, technology 

and boots on the ground. 

I would like to see a little more flexibility for the Department in 

coming up with the best strategy to actually achieve the goal, so 

you and I agree with each other on that, right? 

Secretary NAPOLITANO. Let the record show we agree. 

Senator CORNYN. That is good. Good start. All right, now here is 

the harder part. That is in the bill, as you point out, there are different measures for effective control of the border and it calls for 

a 90 percent effectiveness rate. 

The problem I have is do you know how many people actually 

cross the border unbeknownst to the Department and effectively 

get away? In other words, we do not know the denominator, but we 

know the numerator because we know the people who are detained, 

but we do not know the people who actually attempt to get across 

and who are successful in doing so unbeknownst to the border patrol, do we? 

Secretary NAPOLITANO. That is one of the problems with using effectiveness rate as your only measure. Now as we continue to buy 

and put in place all the technology according to the plans that we 

have now submitted to Congress for each sector along the border, 

I think we will have greater confidence that we will have situational awareness as to that denominator. 

I will share with you, Senator, that that is an inherent problem 

knowing the actual denominator. 

Senator CORNYN. I have always thought it kind of bizarre that 

we measure our success by the people we catch and do not focus 

on the people who got away as a measure of our lack of success, 

but it is an inherent problem as you point out. 

Secretary NAPOLITANO. It is a number that is used as one of the 

many that taken together when you look at all the other statistics 

along the border give you kind of an overall picture. 

Senator CORNYN. Under the bill, the Department would have to 

gain effective control over high risk sectors along the border, and 

right now based on 2012 numbers, that would be Tucson, the Rio 

Grande sector and the Laredo sector, obviously two in Texas and 

one in Arizona. 

The problem with that is that if the cartels and the human traffickers know where the Department of Homeland Security is going 

to concentrate its efforts, they are going to reroute and redirect 

their efforts into the areas that are not as hardened and are not 

as secure. Would you not agree? 

Secretary NAPOLITANO. This is the way I think it will work, Senator, which is to say first of all all sectors will have protection in 

them. The question is where you have basically surge, or even more 

protection and you want to put your resources where the traffic is 

greatest. 
146 

If the traffic shifts, the resources will shift. The ability we have 

now is we are much better able to kind of predict ahead of time 

where we think some of that traffic is going to move and pre-position. 

Senator CORNYN. The bill provides for an annual review in terms 

of identifying which of those sectors, where the Department would 

concentrate its resources. 

Secretary NAPOLITANO. Yes. 

Senator CORNYN. My concern is the cartels and the human traffickers are far more nimble and are able to—an annual decision 

just seems to me to be unworkable. 

Secretary NAPOLITANO. If I might, Senator. That is what the 

draft bill provides, but we regularly review those numbers and 

make decisions, so we would not wait for an annual review to make 

adjustments. 

Senator CORNYN. Again on the number of people who get across 

who get away so to speak, there was a story in the Los Angeles 

Times, I am sure you are familiar with, talking about radar technology, VADER I think it is called. 

Secretary NAPOLITANO. VADER. Yes, sir. 

Senator CORNYN. VADER, the story suggests that as many as 

half of the people who cross the border get away undetected by the 

Department of Homeland Security. Do you have any reason to disagree or differ with that estimate? 

Secretary NAPOLITANO. Oh, yes. That story was unfortunate and 

misleading. It did not understand the technology which was just 

being tested, it has not even been used yet. We are taking something that was used in the battlefield and transferring it to the border and there are adjustments that have to be made. 

But it also did not take into account the fact that there were apprehensions being made around the aperture of the VADER. So I 

can give you a more detailed briefing in a more private setting 

which I think would be more appropriate, but I will tell you that 

article was very incomplete and very inaccurate. 

Senator CORNYN. I would welcome that. My last question, if I 

may. Since 1996, the law of the land has mandated the implementation of an automated entry/exit system. Here we are 16 years 

later and it still has not been done. 

My question is what gives you any confidence that it will be done 

now under the terms in this bill if it has not been done over the 

last 16 years? 

Secretary NAPOLITANO. Two things. One is that we have now enhanced our ability to, as I said before, use different databases and 

link them in different ways. We have already submitted to the Congress our plan for moving toward electronic verification upon air 

and sea exit. So that is the plan we are already implementing. 

In terms of a biometric exit, we have piloted that in Detroit and 

Atlanta. There were a lot of issues about it. One of the issues quite 

frankly, Senator, is our airports really are not designed to have 

those kind of exit lanes. Just a plain old architecture problem. 

We think we can basically achieve that with the electronic 

records verification that we are already putting into place according to a plan we have given to Congress, and that will be for both 

air and sea. 
147 

Chairman LEAHY. Thank you. 

Senator CORNYN. Thank you. I hope we get to land at some point 

in the future, too. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you, Secretary, for being here. Thank you for all your good 

work last week. 

Last year a bipartisan group of Senators including myself introduced the JOLT Act which modernizes and expands the visa waiver program, reduces visa wait times. I think you know as the 

former Governor of Arizona which is a great tourism State, although not quite as good as Minnesota with our current foot of 

snow in April, but we have introduced this bill to speed things up 

and there have been some dramatic changes made already. 

I wanted to know if you support this part of the bill and if you 

think it is a good idea and what you think of using video conferencing more to try to speed up the numbers. As you know, we have 

lost 16 percent of the international tourism market since 9/11. We 

are finally seeing some improvements without changes to our security in terms of speeding up the times. Every point we add is over 

160,000 jobs in America. 

Secretary NAPOLITANO. Well, the administration is supportive of 

the JOLT Act. We are supportive of the visa waiver program with 

appropriate safeguards for security and video conferencing, we are 

using it in several other areas. So that is something that is really 

just a tactical decision. By the way, it was 90 degrees in Phoenix 

today. 

Senator KLOBUCHAR. I get the message. But we have them all 

over America. Many local and State law enforcement officials, particularly those in border towns have had their resources stretched 

very thin. 

Can you speak to the potential benefits of this bill and the resources to State and local law enforcement agencies of passing this 

comprehensive reform and improving security on the border? 

Secretary NAPOLITANO. Yes. I think the bill does an excellent job 

of putting more resources at the border and specifying resources to 

be used in a Stonegarden type of arrangement with our State and 

local law enforcement authorities along the border. 

I think there are some special provisions in there for Arizona, 

but it is a good and very supportive of State and local law enforcement provision with respect to the border security title of the bill. 

Senator KLOBUCHAR. Very good. Going after fraud and abuse in 

Government programs is extremely important, including in the immigration area. DHS, the Department of Labor and the Justice Department have to use their auditing and prosecutorial authorities 

to combat the misuse of all of visa programs and protect foreign 

workers from abuse which really in turn protects American workers. 

Does this bill improve the tools and resources that the Government has to prevent or identify abuses and problems with our immigration system? What are the components of this bill and how 

do you think this helps? 
148 

Secretary NAPOLITANO. Yes. It really helps. The bill just increases the body of knowledge that we have available to us because 

it requires more by way of verification, by employers and employees. It requires a secure identification to be issued. It gives us more 

biometric capacity. 

We will also be able to take the RPI database and dump it into 

our photo matching database and that in and of itself will be very 

helpful. 

Senator KLOBUCHAR. Right. I think that is something where we 

have all been talking about in the past week the difference of actually knowing who is here and being able to get that information 

which really eludes us right now. 

Secretary NAPOLITANO. I think one of the real significant improvements made by this bill is to bring people out of the shadows, 

we know who they are, we know where they are. By the way, from 

a police perspective, once these people know that every time they 

interact with law enforcement they will not be subject to removal, 

it will help with the reporting of crimes, the willingness to be a 

witness and so forth. 

Senator KLOBUCHAR. Right, and that gets to the last thing I was 

going to ask you about was an U visa program. As you know, we 

worked had to try to get that in the Violence Against Women Act. 

It is in there, but we were trying to expand the U visas available. 

You are a former prosecutor, I am a former prosecutor and we understand how perpetrators, especially rapists and domestic abusers 

use the law against victims. They basically say well, if you are 

going to report this, I am going to have you deported. 

Could you explain how the work of the Gang of Eight helps with 

public safety by protecting these victims so they are not afraid to 

come forward? 

Secretary NAPOLITANO. Well, what the bipartisan bill does is it 

expands the number of U visas that are available and also the T 

visas that are available. So from a crime victim protection standpoint and our ability to prosecute those who are abusers, traffickers and so forth, it is very helpful. 

Senator KLOBUCHAR. Thank you very much. 

Chairman LEAHY. Thank you. I would just remind Members 

again that on Thursday we are going to meet at 9:30 instead of at 

10:00 because of a security briefing we are having, a closed door 

briefing. At 10:30 we will have the bill that Senator Lee and I 

have, the Electronic Communications Privacy Act. I think it will go 

through well in the Committee, but we will need the quorum. 

Senator Lee, you are next. 

Senator LEE. Thank you, Mr. Chairman. I do look forward to 

that hearing. It is going to be a fun one. Thank you, Madam Secretary, for joining us today. 

Some of the questions that I have as I have read through this 

bill over the last few days relate to the amount of discretion that 

you were given, you and your successors and interest will be given 

over time should this become law. Some have suggested there are 

as many as 400 instances of discretion. 

I do not mean to suggest that administrative discretion is categorically bad. Sometimes it is necessary. But I want to look at a 
149 

couple of instances where you have got discretion that would be 

vested in your office and ask you about how that might work. 

In establishing the border fencing strategy, you will have a certain amount of discretion as to how much additional fencing might 

need to be deployed on the southern border region. You will have 

discretion to certify when your fencing strategy is substantially 

complete. 

As I understand it, President Obama stated in a speech in El 

Paso in May, 2010 that he believed the border fence was basically 

complete. So one question I have for you, if you determine that little or no additional fencing along the southern border is necessary, 

When do you think is the soonest that you might certify that that 

has been completed? 

Secretary NAPOLITANO. Well, if that part of the bill is passed as 

it is currently written, and Chairman Leahy and I already had a 

little colloquy about that, I think we would move very quickly. 

We have, as I said before, sector by sector technology plans. We 

have not been sitting back waiting for an immigration bill to pass 

to secure this border. So we would move very quickly to look at the 

overall fencing requirement. 

Senator LEE. Do you agree that the discretion that is granted to 

you under this bill should it be enacted into law could permit you 

to make a finding that it is complete, it is substantially complete 

without building any additional fencing? 

Secretary NAPOLITANO. Well, right now the border patrol already 

pursuant to existing law and appropriations law has done an extensive study of where fencing makes sense along the southwest 

border. They determined that there were 653 miles where it actually makes sense, and as Senator Cornyn mentioned, there are vast 

stretches of the border where it does not make a lot of sense. 

Senator LEE. Sure, sure. 

Secretary NAPOLITANO. Six hundred and fifty two miles of that 

have been completed. So I think what we would do should the bill 

pass is go back, look at the kind of fencing we have and say do we 

want to make it triple what it is, or taller than what it is, or something of that sort. 

But, we have continually looked at the infrastructure along the 

border from a security perspective. 

Senator LEE. All right. You also have discretion to waive grounds 

of inadmissibility on the part of would be RPIs related to criminal 

background. The language of the bill I believe says that you can 

do that for humanitarian purposes to ensure family unity or if such 

waiver is otherwise in the public interest. 

Once you decide to make such waiver, you have to apply it to the 

entire class of any persons who might be similarly situated with respect to their own eligibility or lack thereof for RPI status. 

In what situations do you think you might consider granting that 

waiver? The kind of waiver discussed at page 65 of the bill? 

Secretary NAPOLITANO. Right. I am going to caveat all my answers as of what I know today verus what the bill may change to, 

so just with that in mind. 

Senator LEE. Right. 

Secretary NAPOLITANO. But I could see that there would be consideration based on the age of a conviction, the type of a conviction, 
150 

whether the individual was the primary wage earner for a family, 

not just a family member, the records since a prior conviction, that 

kind of inclusive evaluation of an individual. 

Senator LEE. All right. According to the bill at page 81 of the bill, 

an applicant for RPI status may not file an application for that status unless the individual has satisfied all tax obligations to the 

IRS, meaning Federal income tax since the date on which the applicant was authorized to work in the United States as an RPI. 

If the alien was authorized to work in the U.S. during the time 

in which he or she was legally authorized, would not those taxes 

have already been collected? 

As I understand it, as I read that language in the bill, it runs 

from the moment that the would-be RPI was made legal to work 

in the country. If they were not legally authorized to work in the 

country, is that really a significant restriction? 

Secretary NAPOLITANO. Well, I think the issue, the intent of the 

bill is to make sure that anybody moving to RPI and then ultimately from RPI to LPR has paid all taxes and is paying all taxes. 

If the language has to be clarified, that is what the Committee 

process is for. 

Senator LEE. All right. Great. Thank you very much. There is 

more we could ask but I see my time has expired. I thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. I see Senator Franken 

is not here, so Senator Coons. 

Senator COONS. Thank you, Chairman Leahy. I just wanted to at 

the outset thank you very much, Secretary Napolitano. DHS has a 

complicated, difficult, broad-ranging mission, and though it is just 

one department, it is responsible for a vast array of important 

goals at the same time and I am grateful for you doing your very 

best and for everyone in the Department doing your very best, particularly at this time when we opened this hearing with reflections 

on the tragedies in Boston and in West Texas, we are reminded of 

how grateful we are for everyone in law enforcement and public 

safety who helps protect us. 

I am from the Mid Atlantic, a region with many ports, and with 

the significant allocation of additional resources under this bill to 

the southwest border, what assurance could you give us that comprehensive immigration reform will not further degrade CBP’s ability to perform its customs inspection mission at some of our vital 

ports around the country? 

Secretary NAPOLITANO. Well, I think it is important, and as I review the bill and the intent behind the bill, it is to make sure that 

the additional activities are paid for through fees and fines and the 

like. 

Again, Senator, the other parts of the bill, the employment 

verification, the opening up and clarifying of the visa process, making more visas available both on a permanent and temporary worker basis, this will help the economy grow in every State. 

Senator COONS. There has been some discussion back and forth 

about discretion. Under current practice, DHS uses its discretion 

authority very sparingly. I think studies have shown roughly 1 percent of all cases. This legislation provides the Department with 
151 

some additional discretion in deportation cases but with very significant limitations. 

Given what is proposed in the bill, how much more should we expect the Department to exercise its prosecutorial discretion say in 

cases where a U.S. national child would be directly affected? 

Secretary NAPOLITANO. Well, I think we already do that pursuant to policy. That was one of the points of building some discretion 

into the enforcement of current law. So I think the intent of the 

bill, again, is to simply memorialize some of that in statute. 

Senator COONS. Under current practice, immigrants spend a significant amount of their time and resources obtaining basic information about their own cases before appearing in front of an immigration judge, and DHS has to spend significant staff time and resources because there is no discovery process. 

Each request for their own files has to go through a FOIA process. Would the Department have any objection to streamlining this 

process through simply providing appropriate portions of an immigrant’s A-file in advance of a hearing? 

Secretary NAPOLITANO. Provided we had the resources to pull the 

A-files, I would have no objection to that. We would have to see the 

actual language. One of the real logistical issues is some of these 

old A-files as you know are contained in large warehouses of paper 

files and caves. 

But given the resources, anything we can do to streamline the 

FOIA process would be something to be considered, yes. 

Senator COONS. Thank you. My impression is that following a 

9th Circuit decision in this area, the Department may have actually seen some benefit in terms of the overall efficiency, recognizing 

the resource limitations you point to. 

Secretary NAPOLITANO. That is right. 

Senator COONS. My last question is about the E–Verify system. 

What privacy protections need to be put in place or are already in 

place to ensure employers do not misuse the system and how would 

this legislation improve on it? 

Given that DMV’s in many States do not comply with their existing obligations under the so-called motor voter law, do you believe 

it would be constructive or appropriate to give these States additional funds with the assumption that they will meet their obligations to assist in E–Verify implementation? 

Secretary NAPOLITANO. I believe the bill actually constructs an 

incentive program for States to have their DMVs put their driver’s 

license databases into the E–Verify database, and that of course is 

something we greatly support. I think it would be very helpful. 

Senator COONS. Great. Madam Secretary, thank you very much 

for your leadership in this difficult and important area. Thank you 

for your answers today. Mr. Chairman? 

Chairman LEAHY. Thank you very much. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. Thank you, Madam 

Secretary. It has been a real pleasure working with you and your 

staff on this very important topic of border security. 

Let me start with the waiver provisions as inquired by Senator 

Lee. It is my understanding that there is no waiver for an aggra-
152 

vated felony or felony or national security problem, that those three 

areas are not waivable, is that correct? 

Secretary NAPOLITANO. That is my understanding as well, Senator. 

Senator GRAHAM. I think the waiver he was talking about is in 

other areas and again, I think that is good to know that there is 

some discretion, but not in these areas. 

Now, about what we are trying to accomplish here. How much 

money have we spent on border security since 2005 or 2006? 

Secretary NAPOLITANO. Billions. 

Senator GRAHAM. All right. Multiple billions. 

Secretary NAPOLITANO. Yes, sir. 

Senator GRAHAM. I think we have 21,000 border patrol agents 

down at the border now? 

Secretary NAPOLITANO. 21,370 I believe is today’s count. 

Senator GRAHAM. I think that is double what we had in 2005 or 

2006. Is that correct? 

Secretary NAPOLITANO. At least doubled, yes. 

Senator GRAHAM. At least doubled, and this bill adds 3,500 more, 

is that correct? 

Secretary NAPOLITANO. Well, it adds 3,500 more CBP officers. 

Yes, it does. 

Senator GRAHAM. It adds more people to help secure the border. 

Secretary NAPOLITANO. Who are stationed at the border. They 

may be at ports, not necessarily between ports. 

Senator GRAHAM. But to enforce border security? 

Secretary NAPOLITANO. Yes, indeed. 

Senator GRAHAM. So we have doubled the number of border patrol agents since 2005 and 2006. This bill we are adding 3,500 more 

customs and border patrol officers to help secure the border. 

Under this bill we are also trying to achieve a 24-hour a day, 7- 

day a week presence, situational awareness at the border by having more unmanned area vehicles, is that correct? 

Secretary NAPOLITANO. Yes. I would mention there that I would 

include not just UAVs, but also different kinds of sensor and radar 

systems that work better in partial areas of the border. 

Senator GRAHAM. We are going to spend $3 billion I believe on 

carrying out the border enforcement strategy? 

Secretary NAPOLITANO. The initial phase, yes. 

Senator GRAHAM. Initial phase, $1.5 billion to try to complete the 

fencing? 

Secretary NAPOLITANO. Yes, and we have already had a colloquy 

about that. 

Senator GRAHAM. All right, and flexibility is fine with me. We 

are also going to allow the National Guard to continue to be deployed to secure the border, is that correct? 

Secretary NAPOLITANO. That is right. As the Governor who was 

the first to ask for the National Guard at the border, I really appreciate that mission assignment. 

Senator GRAHAM. We are going to increase funding to increase 

the number of border crossing prosecutions in the Tucson area? 

Secretary NAPOLITANO. Yes. I think it basically triples those 

under something called Operation Streamline. 
153 

Senator GRAHAM. So that is what we are doing to enhance the 

border itself. Do you agree with me that controlling jobs inside the 

country is just as important as securing the border? 

Secretary NAPOLITANO. At least as important. As I have testified 

several times, that magnet of illegal labor is a major driver of illegal migration. Dealing with the worker side of this is so very important. 

Senator GRAHAM. Eleven million are coming for employment. We 

are not being overrun by 11 million Canadians. They come to visit, 

they go back home, they live in a stable country with a stable government and a good economy. 

We are being overrun by people from corrupt and poor countries. 

They come here to work. Our theory is that not only should you 

secure the border, but the second line of defense is controlling a job 

so that if you get across the border, you cannot find a job because 

of E–Verify. Is that correct? 

Secretary NAPOLITANO. That is the intent of the bill, yes. 

Senator GRAHAM. All right. Now, 40 percent of the people here 

illegally never came across the border, they came in through a visa 

system at airports and seaports. One of the triggers in this bill is 

to get an entry/exit system up and running so we will know when 

a visa expires, is that correct? 

Secretary NAPOLITANO. Yes, an electronic entry/exit system—air 

and sea, yes. 

Senator GRAHAM. So the 19 highjackers on 9/11 were all students 

here on visas. Their visa expired and the system did not catch that, 

is that correct? 

Secretary NAPOLITANO. That is correct. There are a number of 

ways that those highjackers would be revealed under the bill. 

Senator GRAHAM. Now we have a pretty robust guest worker program providing legal labor to employers who cannot find American 

workers. That is part of the bill, is that correct? 

Secretary NAPOLITANO. Right. Both for ag, but unskilled and 

high skilled. 

Senator GRAHAM. So the combination of systems work in concert. 

Increasing border security through fencing, technology and manpower, controlling finally at a national level who gets a job plus 

providing access to legal labor as a multi-layered approach to trying to achieve border security. 

Do you agree that they all work in concert? 

Secretary NAPOLITANO. It is an interwoven system, absolutely. 

Senator GRAHAM. All right, and if we can make it better, let us 

do it. One last question. You said I think to Senator Grassley that 

the older brother, the suspect who was killed, when he left to go 

back to Russia in 2012, the system picked up his departure but did 

not pick up him coming back, is that correct? 

Secretary NAPOLITANO. That is my understanding. I can give you 

the detail in a classified setting, but I think the salient fact there, 

Senator, is that the FBI TECS alert on him at that point was more 

than a year old and had expired. 

Senator GRAHAM. The point I am trying to make is after having 

talked to the FBI, they told me they had no knowledge of him leaving or coming back. The name was misspelled. So I would like to 

talk to you more about this case, how this man left, where he went. 
154 

When we say there was no broader plot here, I just do not know 

how in the world we know that at this early stage. As to the person 

giving information, suspect two, the 19-year-old, I would imagine 

he is going to tell us that his brother was the bad guy and he was 

a player and that was not that big a deal. I would be shocked if 

that is not the information received from the suspect. That is why 

I want more time to interview him outside of having a lawyer and 

investigate the case in a more thorough way. So we will talk about 

that. 

Secretary NAPOLITANO. If I might, Senator. 

Senator GRAHAM. Please. 

Secretary NAPOLITANO. As you know, this is a very active ongoing investigation. All threads are being pulled. My understanding 

is there will be a classified briefing for the Senate this week. 

Senator GRAHAM. I look forward to hearing it. Thank you. 

Chairman LEAHY. Senator Hirono. 

Senator HIRONO. Thank you, Mr. Chairman and Madam Secretary, thank you for returning to testify before this Committee. 

We know that you have had and continue to have urgent matters 

that require your attention. 

I want to thank you for pointing out once again to this Committee that there are two main drivers of any goal of border crossings and one is labor and the second is that it takes so long to get 

a legal visa to come into our country and that this bill addresses 

both of these issues in ways that should have the effect of decreasing illegal border crossings. Is that correct? 

Secretary NAPOLITANO. It does, and I think also by doing that allows us to focus our resources on those who are smugglers and 

narco traffickers and others who really are public safety or national 

security concerns. 

Senator HIRONO. I think it allows our priorities to be where they 

ought to be in terms of enforcement. This bill overhauls the current 

system in ways that will certainly help millions of families reunite 

with their loved ones, but it will also dramatically restrict the abilities of some families to reunite with certain loved ones, and this 

is a particular concern to those who are on the wait list from Asia 

which is where the major backlogs are. 

I would like to continue to work with the Members of the Committee and with all of you to seek improvements on the family provisions to include LGBT families and children of the Filipino World 

War II veterans. These veterans have been waiting for decades to 

reunite with their children. 

I know that compromises needed to be made, but I do believe 

that there are some areas of this bill where it went farther than 

it needed to. Specifically this bill eliminates, after 18 months, the 

sibling category and adult married children category and it replaces it with a merit-based point system. 

I believe that the new merit-based visa system will exclude many 

immigrant family members from reuniting with their U.S. citizen 

siblings, and of course we know how important siblings are as part 

of a nuclear family structure because they provide assistance with 

jobs and emotional and financial support. They provide care for 

family members. 
155 

In addition, there are many times when for immigrants a sibling 

may be the only remaining member of their nuclear family. In fact 

I have met a number of people who have been waiting to reunite 

with their siblings. 

I am concerned that this bill will no longer provide a meaningful 

opportunity for U.S. citizens to petition for their siblings. My question to you, Madam Secretary, is what opportunities will siblings 

have of U.S. citizens to be able to immigrate to the United States 

under the provisions of this bill? 

Secretary NAPOLITANO. Well, I think what the intent of the bill 

is in exchange for allowing the spouses and children of green card 

holders to be excluded, in exchange for the recapture provisions of 

unused visas and in balance with the increase in economic related 

visas, the sibling category was greatly restricted if not eliminated. 

But as you mentioned, there are other avenues such as the different work related visas that a sibling would be eligible for regardless. So there will be other avenues that a sibling could pursue. 

Senator HIRONO. I know that this bill allows siblings to under 

the merit basis to get some points for being siblings. However, I 

had a hearing of this Committee relating to comprehensive immigration reform impact on women and children and it became clear 

that the majority, 70 percent, of immigrant women obtain legal status through family based immigration system. 

What do you think would be the impact of the merit-based system on women who have not had the kinds of education and employment opportunities that give them additional points that would 

allow them to score high enough to be able to come in under the 

merit-based system? 

Secretary NAPOLITANO. I think it is difficult to answer that hypothetical right now. I think obviously again since spouses no longer 

count against caps, that is a big improvement where family unification is concerned, spouses of LPRs and children as well. 

I think that in and of itself is a major improvement and will deal 

with a lot of the backlog where women are concerned. 

Senator HIRONO. I think there are probably some ways that we 

can allow for these kinds of family members to come in with—so 

that a nuclear family that consists just of sibling or of older married children, that issue can be addressed. I look forward to continuing to work with you. Thank you, Mr. Chairman. 

Senator FEINSTEIN [presiding]. Senator Cruz. 

Senator CRUZ. Thank you, Madam Chairman. Madam Secretary, 

thank you for joining us and thank you for the excellent work that 

you and your agency have done, in particular over the last week 

in dealing with and apprehending the Boston bomber. It has been 

a time of great trauma for the country and we are all celebrating 

that he was apprehended so quickly. 

Secretary NAPOLITANO. Thank you. 

Senator CRUZ. I would like to ask questions both dealing with 

process on this legislation and then also dealing with border security. Starting with process. 

My office received the text of this bill at 2:25 a.m. on Wednesday, 

April 17th, five days ago. The bill is 844 pages long. It is dealing 

with a very complicated topic. 
156 

My first question is when did your office receive a copy of the bill 

as filed? 

Secretary NAPOLITANO. About 3:00 in the morning. I think that 

is about right. 

Senator CRUZ. In the five days since then when you have obviously been heavily focused on matters such as the Boston bombing, 

and quite properly focused on matters such as that, have you had 

the time to read all 844 pages of the bill? 

Secretary NAPOLITANO. Actually, I have read the bill. I know 

many sections of the bill fairly well, so I was able to skim those 

sections, but I have been able to review the bill, yes, sir. 

Senator CRUZ. All right. Then that has been a busy weekend for 

you. 

Secretary NAPOLITANO. Yes, sir. Very busy. 

Senator CRUZ. Let me shift to the question of border security. 

Metrics of border security are sometimes interesting because at 

times, public officials point to an increase in apprehension as demonstration that border security is working well, and at other times 

it seems officials point to a decrease in border apprehensions as 

evidence that border security is working well. 

I guess I am always a little skeptical of a statistic that regardless 

of what it demonstrates proves the end being put forth. 

Let me just ask an initial question. Have apprehensions increased or decreased? 

Secretary NAPOLITANO. From when to when? 

Senator CRUZ. From say last year to this year. 

Secretary NAPOLITANO. Overall, apprehensions have stayed the 

same except with respect to the southern Rio Grande valley where 

we have had an increase primarily in illegal immigrants from Central America, not from Mexico. 

I can give you kind of chapter and verse on all that is being done 

there, but it has basically stayed the same in all the sectors except 

for that one geographic area. 

Senator CRUZ. I guess I am a little puzzled because earlier this 

month you told reporters in Houston, and I believe this is a quote, 

I can tell you having worked that border for 20 years, it is more 

secure now than it has ever been. Illegal apprehensions are at 40 

year lows. 

Secretary NAPOLITANO. That is true. 

Senator CRUZ. I want to understand. It goes back to the point I 

said that sometimes saying apprehensions are down is signs of success and at other times the argument seems to be apprehensions 

are up. 

Which is accurately describing what is happening at the border? 

Secretary NAPOLITANO. Well, both are accurate. If you look at the 

border, San Diego to Brownsville, apprehensions are at 40 year 

lows. The key thing is to sustain that. 

We know that we are currently having—— 

Senator CRUZ. Madam Secretary, if I can ask. You just said a 

minute ago they were higher this year than last year, so I am trying to understand how it can be a low and a high at the same time. 

Secretary NAPOLITANO. One is referring to border-wide, one is referring just to the southern Rio Grande sector. In that sector, ap-
157 

prehensions are higher now. We know that traffic is higher now. 

Actions are being taken to turn that traffic back. 

Senator CRUZ. So your testimony is border-wide, apprehensions 

are down. Is that right? I am trying to understand. 

Secretary NAPOLITANO. I think what I just said, Senator, is it is 

about level with last year except with respect to south Texas. 

Senator CRUZ. How does DHS measure border security? Prior to 

fiscal year 2011 DHS used a metric called operational control, and 

as I understand it, DHS is not using that anymore. Obviously this 

bill relies upon DHS having a sound metric for who is attempting 

to cross this country illegally and who is being prevented from 

doing so or apprehended. 

How does DHS actually figure out what is happening and measure success? As a component of that, why is it that the Department 

no longer uses the metric of operational control? 

Secretary NAPOLITANO. We look at a number of things. We look 

at apprehensions, but not in and of themselves. We look at crime 

rates. We look at seizures, both inbound and outbound. We look at 

reports from those on the ground at the border. 

So it is a whole host of things. One of the things we are really 

looking for, Senator, is what is the trend? Is the trend pretty much 

all in a positive direction meaning the border is more secure or 

not? 

When we look at all of those things, then we can also make decisions about where we need to put even more resources. 

Chairman LEAHY [presiding]. Thank you. 

Secretary NAPOLITANO. For example, right now we know south 

Texas is problematic for us, but we are already and have been moving more technology, manpower, et cetera, in there. I bet we will 

see those numbers shift very quickly. 

Chairman LEAHY. Senator Schumer. 

Senator SCHUMER. Thank you, Madam Secretary. First I want to 

thank you for the outstanding job that you are doing not only on 

this legislation but on so much else in terms of securing the border 

and all the other mandates that your position has. 

Second, I would just reiterate, this bill is going to be available 

for everyone to read for three weeks from the day it was introduced 

which is actually six days, not five days since Wednesday at 2 a.m. 

I was there, I introduced it. 

I would also say that we had Senator Grassley, and this is not 

casting an aspersions on Senator Grassley, he introduced an 80- 

page gun bill at about 11:00 as I remember it on the day we voted 

on it at 2:00 or 3:00. It was a complicated bill. I did not hear any 

cry about it. The main point I want to make, there is going to be 

plenty of time for everybody to read the bill thoroughly and prepare 

amendments both for Members of this Committee and Members of 

the floor. 

I know there is sort of this view, well, this is just like health 

care, and it is not. The health care bill we started debating before 

it was even introduced. That is not happening here. We want just 

to say this—I think I speak for the eight of us who helped put this 

together. We want a robust Committee process because last time 

we did not have a Committee process and the bill collapsed on the 

floor. 
158 

Now perhaps if the amendments that were offered on the floor 

would have been offered in Committee, compromises could have 

emerged, discussions could have emerged and we might have avoided that. 

To have an open, robust Committee process which the Chairman 

has agreed to is in our interest. No one is trying to rush this bill 

through in any way. I want to make that clear and I think I speak 

fully on behalf of the eight of us here. 

I would now like to talk about the border. Back in 2010 you may 

remember that Senator McCain and myself sent you the border bill 

that had a supplemental appropriation of about $600 million, is 

that right? 

Secretary NAPOLITANO. Yes. 

Senator SCHUMER. At that time the southern border as a whole 

had an effectiveness rate of 68 percent which meant that of every 

100 people that our authorities saw, they were able to catch or turn 

back 68. After the border bill was passed and after that money was 

spent, it went up to 82 percent, is that correct? 

Secretary NAPOLITANO. It sounds about right, yes. 

Senator SCHUMER. I believe that is the case. The immigration bill 

we are passing today actually appropriates $4.5 billion and up to 

$6.5, minimum of $4.5, the maximum of $6.5 over the next five 

years. 

Given that the $600 million we appropriated made such progress, 

can you tell us what kind of security impact we will have by appropriating more than ten times the amount in that bill? Does it not 

seem to you very logical that we are going to get a much higher 

effective rate than we have now? 

Secretary NAPOLITANO. Yes, Senator. I think that is true. I think 

in particular in my view the key here is technology and air cover. 

Our ability to procure, install and implement the best available 

technology at that border as we are doing so now, but to be able 

to speed that up can only improve where we all ready are. 

Senator SCHUMER. Yes. Look, I went to the border. It was a revelation to me. Senator Flake and Senator McCain led a trip that 

Senator Bennet and I went on and it is clear that it is a huge vast 

border. I am from a little tiny State of New York. You cannot do 

it by just lining up people, you do not have enough. 

It is amazing, if you use air and particularly drones, you can actually figure out where the people are going and force them, apprehend them, 20, 30, 40, 50 miles inland and the drones have the 

ability to follow that. We certainly need more drones, we need more 

air, the people on the border made that clear to us and should increase the effectiveness rates dramatically in my opinion at least. 

Do you disagree? 

Secretary NAPOLITANO. I do not disagree, and the technology I 

think as it is implemented will give us more confidence in the denominator which has always been one of the major problems in calculating effectiveness rates. 

Senator SCHUMER. Finally I just want to clarify, and Senator 

Grassley actually brought this up again, how we tighten up security. It is clear that Tamerlan Tsarnaev, they had no record of him 

going to Russia or coming back because his name was misspelled 
159 

by Aeroflot where we do not have regulations, it being a foreign 

airline. 

Under our bill, everything would have to be passport or machine 

read so that type of mistake could not occur. So if our bill were law, 

is it a pretty safe guess that the authorities would have known 

that Tsarnaev left to go to Russia and knew when he came back? 

Secretary NAPOLITANO. If I might, Senator, there are actually 

redundancies now in the system, so there was a ping on the outbound to customs. This is my understanding and this has been 

kind of a changing picture. But even regardless of that, anything 

that makes a requirement for machine readable gets manual 

inputting out of the system, improves security. 

Senator SCHUMER. Right. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Flake. 

Senator FLAKE. Thank you. It was a revelation to go down on the 

border. We actually watched an illegal border crossing while we 

were there. 

Secretary NAPOLITANO. And an apprehension. 

Senator FLAKE. As you heard, and an apprehension. And a quick 

one, too. 

Senator SCHUMER. They knew exactly where the person was 

climbing the fence would go. They said we are going to catch her 

in 20 minutes. And they did. It was amazing. 

Senator FLAKE. I think the woman who crossed heard Senator 

Schumer’s accent through the fence and thought I am in New York, 

where is the Statue of Liberty? I am here. 

[Laughter.] 

Senator FLAKE. But, anyway, It was a good trip. It is always 

good to see the border and see what needs to go on there. Let me 

just touch on that for a second. You have talked about apprehension rate and there has been concern for awhile about the metrics. 

Is it true that what we are calling for in the legislation, the effectiveness rate, is pretty much what you do now in terms of—because 

Senator Schumer quoted some statistics from a couple of years ago. 

That is within what you are doing now, but now you will have 

more resources to do it, correct? Is that the net effect? 

Secretary NAPOLITANO. Yes. 

Senator FLAKE. We know the denominator, the number of people 

who have crossed, but with better technology, particularly surveillance, we will be able to get a better figure there. 

Secretary NAPOLITANO. Right. But realize too that no one number captures the evolving and extensive nature of the border. So 

that is why I keep saying there is no one metric that is your magic 

number 42 or something of that sort. 

These are indicators which taken as a whole give you a picture 

of the border and then are informed by what we are actually seeing. 

Senator FLAKE. I take it from your testimony you are comfortable 

that given the resources that are provided given where we are already that you will be able to achieve the 90 percent effectiveness 

rate in the high risk sectors? 

Secretary NAPOLITANO. Well, if we are not, the border provides 

then for the commission and additional resources, but let me just 

share with you that it is not just what is at the border. It is the 
160 

E–Verify, it is the visas, it is improving the overall system so that 

we lessen the drivers of illegal migration. 

Senator FLAKE. Right. That is what I want to focus on next, the 

so-called second border or employer enforcement. 

Do you see any issues with moving ahead with being able to have 

E–Verify mandatory in the time table called for by the legislation? 

Is that achievable? 

Secretary NAPOLITANO. It is achievable assuming the resources 

are available to CIS, but yes as I testified, assuming resources we 

will implement the bill with the time lines you have given us. 

Senator FLAKE. Identify fraud is kind of the Achilles heel of employer verification at present. The provisions called for in the bill, 

the photo tools and whatnot, do you see those as having an effect 

or helping in that regard? 

Secretary NAPOLITANO. Absolutely. We are already doing photo 

match with things like passports, but putting for example all the 

RPI IDs into the employee verification database, very, very helpful. 

Also incentivizing States to put their motor vehicle records, their 

driver’s licenses in the database, also very helpful. 

Senator FLAKE. Current concern is that E–Verify can tell if the 

social security number is valid, it just does not do very well in determining whether that is being used six times in other States. 

How does this legislation deal with that in your view? 

Secretary NAPOLITANO. It allows us to implement a system that 

basically creates a lock on a social security number so if the same 

number is being used in several places, that gets flagged. 

Senator FLAKE. All right. So an individual can say all right, I 

have my job, I am going to lock my number so it cannot be used 

elsewhere? 

Secretary NAPOLITANO. That is correct. 

Senator FLAKE. And if a number does pop up in Montana or New 

York or somewhere else, then that is flagged now where it currently is not? 

Secretary NAPOLITANO. That is my understanding of the bill, yes, 

sir. 

Senator FLAKE. All right. Thank you. Thank you for your testimony. 

Chairman LEAHY. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you, Madam Secretary. This bill gives 

the Secretary, you, extraordinary discretion if it were to become 

law in making many, many decisions about how the law would be 

carried out. 

In light of what has been happening in recent months and years, 

that causes me a great deal of concern. In October of 2011 in an 

oversight hearing, I shared with you the concerns that your ICE officers, your immigration customers enforcement officers, they described how your department has been more focused on meeting 

the special interest pro-immigration groups than supporting them 

and helping them accomplish what the law requires in this country. 

Since then, I have asked you have you met with those officers 

and you said no. Today have you met with the officers and the ICE 

Officer’s Association? 
161 

Secretary NAPOLITANO. Have I met with union leadership? No. 

Have I spoken with ICE and border patrol officers in the field? Yes. 

Senator SESSIONS. Well, I think you should have met with them. 

I think there is a real problem there. We have a very real problem. 

In December of 2012, a few months ago, a survey of Federal agencies showed that morale of ICE employees had dropped in rankings 

to 279th out of 291 Federal agencies. 

Were you aware that the morale at ICE has plummeted? 

Secretary NAPOLITANO. Yes. In fact, employee morale is a real 

concern of mine and it is not just with ICE, it is throughout the 

Department. 

Senator SESSIONS. Are you aware that a lawsuit has been filed? 

Are you aware that really two years ago a vote of no confidence in 

ICE Director John Martin was held and nothing has been done apparently to deal with his failed leadership at that agency? 

Secretary NAPOLITANO. Senator, under his direction, ICE has actually increased its enforcement efforts. It has installed real priorities for the first time. He actually gets criticized for deporting too 

many people as opposed to not enough people. 

It is a difficult, difficult job to have, but when you look overall 

at the operation of ICE and where it was four years ago, they have 

removed more people, they have installed real priorities and we 

now have secure communities installed nationally. So I think—— 

Senator SESSIONS. Well, I could not disagree more. I cannot disagree more about that. That is not what the officers are saying. 

That is not what Chris Crane, the head of the association testified 

to yesterday. 

Let me ask you this. 

Chairman LEAHY. Let her answer the question. 

Senator SESSIONS. She was interrupting my comment. 

Secretary NAPOLITANO. I apologize. I did not mean to interrupt. 

Senator SESSIONS. I just would say that I do not believe that is 

accurate. He testified that agents are prohibited from enforcing the 

law and indeed the ICE officers have filed a lawsuit. 

I started out as a Federal prosecutor in the Department of Justice in 1975. I have never heard of a situation in which a group 

of law officers sued their supervisor and you for blocking them from 

following the law. They were not complaining about pay, benefits, 

working conditions. They were saying their very oath they took to 

enforce the law is being blocked by rules and regulations and policies established from on high and that this is undermining their 

ability to do what they are sworn to do. 

Secretary NAPOLITANO. May I respond? 

Senator SESSIONS. Yes. 

Secretary NAPOLITANO. There are tensions with union leadership 

unfortunately, but here is what I expect as a former Federal prosecutor and attorney general. 

That is that law enforcement agents will enforce the law in accord with the guidance they are given from their superiors and that 

is what we ask of ICE, that is what we ask of border patrol, it is 

what we ask throughout the Department and I believe that would 

be consistent with all law enforcement. 
162 

Agents do not set the enforcement priorities, those are set by 

their superiors and they are asked then to obey that guidance in 

accord with the law. 

Senator SESSIONS. Well, what Mr. Crane testified to was that 

there are law provisions that say agents shall do this, that and the 

other and that the policies set by their political supervisors refuse 

to allow them to do what the law plainly requires. 

You are not entitled to set policies, are you, that violate the mandates of congressional law? 

Secretary NAPOLITANO. If I might, Senator. I disagree with almost everything you have said, but we will just have to respectfully 

disagree with each other. 

But I think it does point to why this bill needs to be passed, because what we want our officers doing is focusing on narco traffickers and human smugglers and money launderers and others 

who misuse our border and our immigration system by having a 

process by which those in the country illegally can pay a fine, pay 

fees, register so we know who they are by dealing with the employer demand for illegal labor, by opening up the visa system. 

That will have the effect basically of confirming the focus of resources where they need to be. 

Senator SESSIONS. Madam Secretary, I appreciate that but I am 

really worried about the vigor of this department and your leadership and Mr. Morton. I would note removals by ICE are down 40 

percent than when Director Morton issued his 2011 prosecution 

memorandum that basically undermined prosecutorial ability to 

function. 

Chairman LEAHY. I think the Secretary has answered. 

Senator SESSIONS. That is why the morale is so low. 

Chairman LEAHY. I think the Secretary has answered the question and of course filing a lawsuit does not mean the person filing 

it wins the lawsuit. Let us see how the lawsuit comes out. 

In the meantime, Senator Franken was here very early on? 

Please go ahead. 

Senator FRANKEN. Thank you, Mr. Chairman. Before I begin, 

Secretary Napolitano, I want to thank you for your department’s 

response to the Boston bombings. Our thoughts and prayers have 

been with you and all law enforcement and national security professionals in Boston and across the country. You did an outstanding job in quickly tracking down and capturing the perpetrators. Thank you for your work. 

Turning to immigration reform, I am going to focus my questions 

on some things I am a little worried about in the bill, but I just 

want to be clear that this overall package is a giant step forward, 

a giant step forward. 

I really believe this is going a long, long way to fixing a broken 

immigration system and it will help Minnesota businesses and 

families alike. My first question, Madam Secretary, is about the E– 

Verify mandate in this bill. 

I am worried that errors in the system are going to hurt legal 

workers and small businesses. Big companies have the resources to 

deal with this. They have big human resource departments. But I 

am worried about the small family business where the human re-
163 

sources department may also be the accountant, may also be the 

sales force, may also be your spouse. 

You do not have the time to deal with a system that is not working 100 percent properly. One in five businesses in Minnesota is a 

small business with 20 employees or less. The Department is currently self-reporting an error rate of 1 out of 380 workers. For 

every 380 people run through the E–Verify system, the Department 

says that one legal authorized worker is wrongly rejected, at least 

temporarily. 

Madam Secretary, that error rate is a lot lower than the last 

independent audit. Will the Department be able to maintain this 

kind of error rate in five years when the E–Verify mandate would 

apply to all American businesses? 

Secretary NAPOLITANO. Senator, that is certainly our intention, 

and even to drive that error rate down. One of the other things we 

have added to the system is the ability of individuals to self-check 

where they are in the E–Verify so they can go online and check and 

see if their entry is adequate before they even apply for employment. 

We have also set up a very quick system where things can be 

corrected if an error rate occurs. But when you look at the history 

of the E–Verify system over the last six years, you have seen that 

error rate really substantially diminish. We are going to continue 

to work in that regard. 

Senator FRANKEN. So you believe you can be there on that error 

rate or better? 

Secretary NAPOLITANO. Yes. 

Senator FRANKEN. All right. Good. Because an independent audit 

in 2009 as you know had a higher error rate, 1 out of every 140 

kicked out a false negative. Someone who was a legal worker, and 

that sounds low, but you would not want that working on your 

credit card 1 out of every 140 purchases or your car starting or 

something. 

In the 2009 audit it took legal workers an average of 7 to 13 days 

to get those errors fixed. I heard one account of a U.S. citizen, a 

former captain in the U.S. Navy with 34 years of service and a 

high level security clearance, he was flagged as an illegal worker 

and it took him two months to resolve that issue and I have heard 

similar complaints from employers in Minnesota. 

Madam Secretary, is it not critical that E–Verify have these low 

error rates and lower error rates if it will be mandatory for every 

business in the country including small businesses? 

Secretary NAPOLITANO. Yes, and it will be important to continue 

to achieve that, Senator, that CIS get the resources needed for implementation of national verification. 

Senator FRANKEN. That was that old 2009. I know that DHS has 

its own figures showing the lower error rate, but I think independent audits are what we need here and we are a matter of days 

to starting—we are discussing this bill now. We cannot legislate on 

a basis of a study that no one has seen. Would you pledge to us 

to release that data of that study? 

Secretary NAPOLITANO. I do not know the specific data to which 

you refer, but let me—— 

Senator FRANKEN. The report. The report that you—— 
164 

Secretary NAPOLITANO. If there is a report, we will make it available to you. 

Senator FRANKEN. All right. Thank you. Finally, Madam Secretary, I wanted to thank you and your staff for providing me feedback on my bill, the Help Separated Children Act. This is a priority 

for me and so I hope I can count on you and your continuing help 

with that. 

Secretary NAPOLITANO. Yes, sir. Absolutely. 

Senator FRANKEN. Thank you so much. Mr. Chairman. 

Chairman LEAHY. Thank you. Before I go to Senator Lee, I understood that Senator Durbin was here and wished to ask some 

questions. Senator Lee, if you could hold just a moment because 

Senator Durbin had been here earlier. I think he may have had to 

step out for a phone—he is not here? Senator Lee, go ahead. I 

promised you a second round. Please keep it to five minutes because the Secretary does have to go another—— 

Senator LEE. Thank you, Mr. Chairman. Thank you, Madam Secretary. I wanted to correct something I said earlier. I cited that to 

page 81 when we were talking about the tax liability issue. That 

one does talk about the tax liability issue, only in the context of 

the renewal of the RPI status. 

What I should have referred you to was pages 68 to 69 of the bill, 

what would become Section 245BC2. The standard as it is stated 

is ambiguous as to when it would trigger the back tax liability. We 

will move on from that, but I just wanted to acknowledge that I 

had given you a citation error. The standard is in fact broad 

enough that it would give you discretion to identify as the Secretary what documentation they would have to prove in order to 

show that they had fulfilled their obligation to pay any back taxes. 

But we will move on from there. 

I wanted to talk about another provision, this one is on page 63 

of the bill that deals with who is eligible and who is not eligible 

for RPI status. 

It waives ineligibility, inadmissability for RPI status for those 

who have received orders of deportation but have thereafter either 

absconded, meaning they did not leave the country but they fled 

after having been ordered deported or they had returned to the 

United States following an order of deportation after which they 

had returned to their home country or to another country. 

I am a little bit concerned that this provision in particular, separate and part from what anyone thinks about the rest of the path 

to legalization and eventual citizenship, that this might reward 

conduct that seems to be in pretty clear violation of a court order. 

Do you agree with this policy? Is this policy something that 

causes you concerns from an enforcement standpoint as the cabinet 

official in charge of enforcing our laws? 

Secretary NAPOLITANO. Right. I have read the bill. I have not 

memorized the pages of the bill, but I believe the intent of the provision that you are citing is kind of a family unification provision 

in a sense that if somebody has been removed from the country and 

they would otherwise have qualified for RPI and they meet certain 

other criteria, they would be allowed back in the country or I can 

allow them back in the country. 
165 

I think that is one of the balances struck in the bill, family unification versus economic benefit and enforcement. 

Senator LEE. All right. So your recollection of that provision is 

that it is discretionary and it is not automatic? 

Secretary NAPOLITANO. I would have to look at the bill itself, but 

my understanding is that the intent is to give us the ability to 

waive someone in who was previously removed under certain limited circumstances. 

Senator LEE. All right. I will check that as well and will follow 

up in writing with any follow up questions. 

From the date of the enactment until the end of the RPI period, 

the bill as I understand it prevents anyone from being detained or 

deported or even apprehended as long as they appear prima facie 

eligible for RPI status. 

The RPI period as I understand it could last as much as three 

or three and a half years if the extension is granted which you 

have the authority to extend. We have heard from some ICE agents 

in hearings before the Committee that their work has been hampered at times with the similar prohibition under DACA wherein 

people will claim prima facie eligibility for DACA simply by saying 

I qualify under DACA, and at that point enforcement stops. 

The concern has been expressed that this could amount to a 

defacto three to three and a half year enforcement holiday wherein 

nobody as long as they know to invoke these provisions may be detained, deported or even apprehended so long as they utter the 

magic words. 

Do you share that concern? 

Secretary NAPOLITANO. First of all, it is not my intent to take all 

of those extensions assuming I am here or my successor, we have 

every interest in implementing this as quickly as possible. 

Secondly, if someone has an aggravated felony conviction, a felony conviction, if they are a public safety risk or a national security 

risk, they already fall within our priorities. They would not prima 

facie qualify for RPI. Again, since we want to focus on those who 

have those kind of records and get them removed from our country, 

I think we would handle that very effectively as we enforce and 

begin to enforce this new regime. 

Senator LEE. All right. Thank you, Madam Secretary and thank 

you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator LEE. 

Senator Durbin is one of the ones who has written this bill. 

Senator DURBIN. Thank you, Mr. Chairman, Madam Secretary. 

Your title says it all, Homeland Security. 

In light of what happened in Boston, everyone is more sensitive 

to this issue this week than they were ten days ago. It is certainly 

understandable. 

I have said and I am sure you have said it but I want to confirm 

here as a closing Senator to ask questions, do you believe that the 

passage of this immigration reform bill will make America safer 

and more secure? 

Secretary NAPOLITANO. Yes, absolutely. 

Senator DURBIN. First, the notion that up to 11 million undocumented people will step forward, be identified by our Government 
166 

as to who they are, where they live, where they work, be subject 

to a criminal background check? 

It seems obvious to me that with that knowledge, we will be a 

safer nation. 

Secretary NAPOLITANO. Senator, yes, we will have more identifications, more metrics, more biographics reviewed not just against 

law enforcement holdings, but NCTC holdings. So it increases security at that end and then as a number of police chiefs have told 

me, right now for that group that is kind of in the gray area, limbo, 

what have you, they are reluctant to come forward when they have 

been the victim of a crime, the witness to a crime and so forth, allowing them to get RPI status and then begin that pathway will 

help alleviate that law enforcement problem as well. 

Senator DURBIN. I will not dwell on the border aspects of the bill. 

It is clear that we have made historic investments in the security 

of our border between the United States and Mexico and this bill 

will go further. I would like to address a couple other areas that 

are topical. 

One relates to those coming to the United States seeking asylum. 

I want to make it clear for the record that there is nothing in this 

bill that weakens the authority nor the responsibility of your department and the agencies of our Federal Government to establish 

through rigorous, biometric and biographic checks, through law enforcement and intelligence checks including the FBI, Department of 

Defense and other agencies whether those seeking asylum would 

pose any threat to the United States. 

Secretary NAPOLITANO. That is right. As I shared with Chairman 

Leahy at the beginning of the hearing, as you go through that asylum application process, there are a number of times where individuals are re-checked, re-vetted against law enforcement and national security databases, re-interviewed, and then information is 

also gathered to help ascertain the credibility of the claim of persecution. 

Senator DURBIN. I know that you are aware of my interest in the 

Dream Act and I also want to applaud you and the President again 

for DACA an ask you to respond to the criticism which was lodged 

yesterday by one of the witnesses from Kansas about whether or 

not those who have gone through the DACA check should be closer 

to provisional status than those who have not. 

Secretary NAPOLITANO. I thought that was a really good part of 

the draft bill which is to go ahead and put these DREAMers on an 

accelerated schedule. We have already checked them a variety of 

ways. 

Actually, Senator, the DACA process itself really gives us a good 

pilot on how we would do the much larger RPI process. 

Senator DURBIN. One of the other aspects, I know E–Verify has 

been discussed here which is an important linkage between employment, identification and security, but I want to go to the other, 

and that is one that has been worrisome and challenging for more 

than ten years, and that relates to visa holders who come to the 

United States, being told you can stay for a certain purpose or a 

certain period of time and the fact that our system at least up to 

today has been unable to track their departures, so we closed the 

loop. They arrived, stayed and left as promised. 
167 

Part of this immigration reform moves us to a new level, a new 

stage where to increase security and safety in the United States, 

we will develop the technology and the means to establish that. 

Can you tell me in light of what we have been through in trying 

to reach that goal your level of confidence that we can reach it in 

the near future? 

Secretary NAPOLITANO. Well, the electronic exit system for air 

and sea in the bill is very consistent with the plan we have already 

submitted to the Congress and what we are implementing now. It 

is an achievable goal as referenced or stated in the bill as drafted. 

Senator DURBIN. I will just close by saying I have stated publicly 

and I hope that you will agree, the worst thing that we can do at 

this moment in America’s history is nothing. To step back and say 

we will just accept this broken immigration system, the weaknesses in our security and safety that are associated with it and 

resign ourselves to that as our future. 

I think that is the worst outcome. I invite you to respond. 

Secretary NAPOLITANO. Senator, I could not agree with you more. 

As I said at the beginning of the hearing, I think the draft bipartisan bill really embraces the principles, the President annunciated 

it is a much better system than the one we have now. 

It deals with security but also economic growth and vitality, so 

it is a bill that I am very hopeful can move forward. 

Senator DURBIN. Thank you very much. 

Chairman LEAHY. Just so everybody will know, Senator 

Blumenthal and Senator Whitehouse, Senator Grassley has asked 

for a second round. Senator Lee has already had his second round 

and nobody else has asked for a second round, so we will go Senators Blumenthal, Whitehouse, Grassley and then wrap up because 

I know you have to get to another matter. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you for 

being here today and for your really excellent and very helpful testimony. 

I would like to ask a question that perhaps you may have answered in a different way during the course of your testimony. If 

you had one or two or three points where you think this bill should 

be changed as you have read it so as to be improved, and it is a 

bipartisan bill, it advances the debate I think immeasurably and 

I am a supporter and I believe very strongly with Senator Durbin 

that the worst thing to do now would be to do nothing. 

Every measure can use some constructive scrutiny and I wonder 

if you would have any suggestions about how this bill might be improved. 

Secretary NAPOLITANO. One we have discussed and that is rather 

than create a separate fence fund per se, is to have one security 

fund out of which fencing and other things can be paid for so that 

the Secretary and the operators who actually have to manage that 

border have more flexibility with those monies. I would recommend 

that. 

The second area, and we will work with Committee staff on this, 

Senator, is to make sure the language about funding flows in which 

accounts and so forth is accurate and clear because we want to 
168 

make sure it is consistent with appropriations and the Budget Control Act. So we will work with your staffs on that part. 

Senator BLUMENTHAL. In terms of the detention or the judicial 

process or semi-judicial process in some instances by which these 

cases are prosecuted so to speak, can you suggest changes in the 

procedure that would make it either fairer or more expeditious? 

Secretary NAPOLITANO. No. I think one change in the bill actually reflects a policy change we are installing right now which is 

counsel for those who are deemed mentally incompetent. But I 

think overall the due process protections in the bill are pretty robust. 

Senator BLUMENTHAL. In terms of the impacts of the most recent 

incident in Boston, I know that you have addressed those in the 

course of your testimony already. But I wonder if there is anything 

we can do to raise these issues so that they do not become embroiled in the short term misperceptions that may result. 

Secretary NAPOLITANO. Senator, what I would hope is that— 

there is a lot of misinformation out there as to the two brothers 

and of course this is an ongoing criminal investigation, so all 

threads are being followed. 

There is going to be a classified briefing on Thursday for the Senate. What I would recommend we do is let us have that briefing 

and then see what, if any, questions arise at that point that may 

have any relevance at all to immigration legislation. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman. I 

guess Senator Whitehouse, you are presiding. 

Senator WHITEHOUSE. I call on myself. Welcome, Madam Secretary. 

Secretary NAPOLITANO. Thank you, Senator. 

Senator WHITEHOUSE. It is good to have you here, and let me join 

many of my colleagues in expressing my appreciation through you 

to the American law enforcement community for the stellar way 

that they responded to the incidents in Boston. 

We were attorneys general and U.S. attorneys together and I 

know you have a soft space in your heart for law enforcement folks 

and so I am sure you saw with the same pride that I did the way 

people pulled together, the lack of turfiness and the very impressive deployment of a wide range of local, State and Federal capabilities very rapidly, very comprehensively and very smoothly. 

I know as one of the law enforcement leaders, you were an important participant in that and so to you and to the law enforcement community, let me say well done. 

Secretary NAPOLITANO. Thank you, Senator. 

Senator WHITEHOUSE. We have in the context of the immigration 

debate heard considerable complaint about the lack of border enforcement, the problems of continued illegal immigration across 

particularly the southern border and so forth. 

I think that is a refrain that departs a little bit from the facts 

and I wanted to give you the opportunity to recap some of the accomplishments of the Obama administration in border security. So 

if you could briefly give us the highlights reel on some of the statistics and some of the metrics that you look at that show improved 

and increased border enforcement under this administration’s 
169 

watch, I would like to have that be part of the record of this proceeding. 

Secretary NAPOLITANO. Just very briefly, I have worked at border 

for a long time. The border now is very different than the border 

then. Not to say that we are ever done, but this has to be sustained 

and that is an important part of this bill, it sustains our efforts 

there. We have record manpower now between the ports of entry, 

we have technology, we have air coverage. We have completed all 

but one mile of fence, the last mile is in litigation. The end result 

is that apprehensions border-wide, I talked with Senator Cruz 

about south Texas, we have a problem there right now which we 

are fixing, but border-wide are at 40 year lows. 

Our seizures of drugs and contraband, because we are able to 

focus there more, are up. So with the great help of the supplemental appropriation several years ago, we have been able to do 

quite a bit at that southwest border. 

Senator WHITEHOUSE. So the short answer if I could summarize 

is that the deployment of resources to protect that border has significantly increased? 

Secretary NAPOLITANO. To record levels, yes. 

Senator WHITEHOUSE. The enforcement results in terms of additional seizures and prosecutions are up? 

Secretary NAPOLITANO. Are all in the positive direction, yes. 

Senator WHITEHOUSE. And the amount of illegal immigration as 

a result has been reduced? 

Secretary NAPOLITANO. That is correct. There are probably a 

number of other reasons; illegal migration has a number of causes, 

but law enforcement is certainly one reason. 

Another major reason however is the driver to try to get a job, 

which is why this bill really helps us at the border because it deals 

with that driver. 

Another major driver is how difficult and long a period it takes 

to get a visa. That is why this bill helps because it deals with that 

problem. So it is a system that needs to work together. 

Senator WHITEHOUSE. Good. Thank you very much, Mr. Chairman, for holding this hearing. Thank you, Secretary Napolitano for 

being here and I do think it is important that the record of the 

hearing reflect that this administration has actually substantially 

brought up this country’s game in terms of border enforcement and 

suggestions to the contrary, again, they have the appeal of a familiar refrain but they are not factual. 

Chairman LEAHY. I was just curious, I have got to ask the Senator from Rhode Island. Did you and the Secretary serve at the 

same time together either as U.S. attorneys or as attorneys general? 

Secretary NAPOLITANO. Yes, both. I think we may have actually 

gone to the same law school. 

Senator WHITEHOUSE. We did that as well. 

Chairman LEAHY. As the outsider on this Committee, Senator 

Grassley. 

Senator GRASSLEY. Before I ask you the first question, I want to 

make a statement here. It involves the discussion you had with 

Senator Graham. You said that Tamerlan’s name did not ping 

against your database, but the FBI told Senator Graham that it did 
170 

not and I am not sure if it was just a case of your department not 

telling the FBI, but that is something that in the days to come, I 

want to get to the bottom of. 

Let me go to the first question. In regard to high risk sectors, the 

bills border security goal only applies to high risk sectors. You define high risk based on the number of apprehensions in a particular sector, but we know from a 2011 GAO report that your department has no operational control of more than half of the border, meaning apprehensions will remain low in those sectors because your department does not have control. 

Do you think it is acceptable for the border to only be secured 

in certain areas? 

Secretary NAPOLITANO. Senator, that is why we do not use the 

term operational control. Operational control is a phrase that 

should properly be associated with the ability to deploy resources 

to your highest risk areas. 

There are parts of that border we do not need all the same resources that we need in other parts, as you well know. What we 

want is the ability to have manpower and technology and air cover 

and to be able to focus those and move those around to the areas 

where the risk is the highest. That is not operational control per 

se, but it is looking at a whole range of statistics and measures. 

Senator GRASSLEY. In taking off on the term high risk, is it not 

really high risk for the bill to ignore large sections of the border? 

Secretary NAPOLITANO. Well, Senator, we divide the border into 

nine sectors, and there are some sectors that have a lot of miles 

in them but are very sparsely populated and rarely crossed. They 

are not near any population centers, they are not near any roads, 

they are just very difficult. We do not leave them bare, we have 

resources there. But where we want to surge resources is in those 

areas that are used as the trafficking routes. 

Senator GRASSLEY. The bill only mentions need to secure the 

southern border, no mention of the northern border. In fact, only 

the southern border is included in the trigger and has to be 90 percent secured. 

In light of what happened I think it was yesterday, this foiled 

terror plot in Canada, can the northern border be ignored? Or does 

it need to be part of the discussion? 

Secretary NAPOLITANO. Well, I think it is part of the discussion 

but in a different way. It is a very different type of border. Both 

with respect, Senator, to your first point on the misspelling of 

Tamerlan’s name and what that meant. 

With respect to Esseghaier which is the case you are referring 

to now, I think it would be better if we could discuss those with 

you in a classified setting. But let me just share with you that I 

believe the draft bill adequately accounts for security on the 

northen border. 

Senator GRASSLEY. All right. Thank you. Legalization program, 

about how many people today if you know or somewhere within the 

ballpark are in removal proceedings? 

Secretary NAPOLITANO. I would have to get that number for you, 

Senator. 
171 

Senator GRASSLEY. Well then I can ask you a question about the 

bill. Whatever the number is, should these people who are in removal proceedings be allowed to apply for and receive legalization? 

Secretary NAPOLITANO. In my judgment, if they would meet the 

requirements for being an RPI, I believe the intent of the bill is 

they would be allowed to register as such, yes. 

Senator GRASSLEY. And you agree with that? 

Secretary NAPOLITANO. We support the bill and we support that 

intent, yes. 

Senator GRASSLEY. All right. You may not be able to answer this 

question either. How many people today have ignored the Government’s order to leave the United States? 

Secretary NAPOLITANO. Why, I will get you the number for whom 

we have fugitive warrants. 

Senator GRASSLEY. All right, then about the bill on that same 

point, should these absconders be allowed to benefit from the legalization program even though the Government has expanded the resources to remove them? 

Secretary NAPOLITANO. I think the intent of the bill is for certain 

narrow categories, for family unification purposes that they would 

be allowed to come back and register for RPI. 

I think given how that provision is drafted and how it would 

work in practice in terms of family reunification, that is a very 

good part of the bill. 

Senator GRASSLEY. Could I ask one more question? 

Chairman LEAHY. Of course. 

Senator GRASSLEY. This will be my last. I do not know how certain you are about what the fees will bring in on that and I know 

CBO has not scored it and I hope you have a handle on costs to 

some extent. 

Some analyzers tell us that the agency will be able to be prepared to cover all costs through fees and that the administration 

will not come to Congress to seek taxpayers’ money to pick up the 

tab for the program. Does that sound reasonable to you? 

Secretary NAPOLITANO. I think, Senator, as I mentioned earlier, 

we need to work with the Committee on how they have structured, 

to which account the fees and fines collected go. But the intent of 

the bill is that this be a self-supporting piece of legislation. 

We know from DACA the Deferred Action Program, gives us a 

good pilot in terms of estimating what the costs are going to be. 

Senator GRASSLEY. Thank you, Mr. Chairman. Thank you, 

Madam Secretary. 

Secretary NAPOLITANO. Thank you. 

Chairman LEAHY. Thank you. I was going to recess, but Senator 

Cruz says he has a couple more questions and rather than recess 

and come back late this afternoon, I will yield to him now and then 

we will stop. 

Senator CRUZ. Thank you, Mr. Chairman, I appreciate the courtesy. 

Madam Secretary, I wanted to go back and revisit the topic we 

discussed earlier of border security, which is proponents of this legislation argue that it provides for real metrics for border security 

and triggers that are meaningful. 
172 

I will confess the testimony that was provided this morning is 

not encouraging in that regard. We talked about operational control, a measure DHS has used for some time. In 2010 the last time 

DHS used that measure of operational control, the conclusion was 

that only 873 of the roughly 2,000 miles of the southern border 

were under operational control. 

That metric was not an encouraging metric in terms of assessing 

what kind of job we are doing securing the border. It strikes me 

as not coincidental that in the light of that less than encouraging 

statistic, the Department simply decided to stop relying upon that 

statistic and instead, if I understood what you explained this morning correctly, the Department now relies on a holistic group of 

measures which to me seem reminiscent of Justice Lewis Powell’s 

test in Bakke for affirmative action that measured everything and 

has a great deal of subjectivity in it. 

If there are no objective metrics, if it is simply the subjective assessment of a host of factors, how can we have any confidence that 

the border will be secure and that any trigger will be meaningful? 

Secretary NAPOLITANO. I think you have to step back, Senator, 

and look at where the border was even six or seven years ago, 

where it is today. There are a whole host of statistics that help in 

that regard. They are not subjective in that sense. 

They are numbers that give you an overall picture of what is 

happening at the border. The problem with the operational control 

metric is the overuse of it or misuse of it because it was easily misunderstood. I am not being critical about it being overused, I am 

just being descriptive. 

What it really refers to is your ability to have situational awareness and response in highly trafficked areas where you need it, 

where the risk is greatest. 

What this bill does is pretty much say look, we are going to continue to build on the security you already have. There is additional 

money in there for that. We hope that we can get flexibility with 

respect to how that money is spent that goes to the set aside for 

fence. 

Senator CRUZ. But Madam Secretary—— 

Secretary NAPOLITANO. By the way, by the way if we are going 

to use effectiveness rate, which is a GAO number based on numbers we give the GAO and if that does not reach a certain number 

in the highly trafficked areas, then we will have a commission that 

will recommend to me what additional steps need to be made. 

Senator CRUZ. Madam Secretary though, it seems to me that if 

border security is to be measured by an amorphous, multi-factored 

subjective test, that this Committee knows to a metaphysical certainty that DHS will conclude border security is satisfied. 

If a trigger is certain to occur, then I would suggest it is not a 

meaningful trigger that is measuring anything. 

Let me ask you this. Can you describe a circumstance in which 

the evidence would be such that DHS would say the trigger is not 

satisfied, that border security is not there? 

You have already told us apprehensions are at the lowest level 

in 40 years and yet the border is secure. What would the facts have 

to be for DHS to conclude the triggers are not satisfied? 
173 

Secretary NAPOLITANO. I think, Senator, and we will just kind of 

agree to disagree on the predicate for your question, but we would 

be continuing to look at all the measures I indicated to you. We 

would be deploying the technology plans that we have submitted 

to the Congress, and those technology plans are sector specific and 

they are important. 

They are important because they will give us even greater visibility into what may be trying to come across the border than we 

even have now, so that when you look at effectiveness rate, we can 

have—— 

Senator CRUZ. Madam Secretary, I am sorry. My time is expiring 

and I would like if possible for you to try to answer the question 

I asked which is what the evidence would have to show for DHS 

to conclude that triggers were not satisfied. 

Secretary NAPOLITANO. Well, if the conditions in the Tucson sector return to where they were in 2005 and 2006, the triggers certainly would not be satisfied. 

Chairman LEAHY. Thank you. 

Senator CRUZ. Thank you, Madam Secretary. 

Chairman LEAHY. Thank you. Madam Secretary, one, I appreciate you being here. You and I talk often on issues here. I appreciate yours, I appreciate the President’s commitment on immigration. As you know, he and I spent more than one discussion about 

this. I rather ruefully thanked him for having so many issues of 

importance to him before this Committee, but he was kind enough 

to say he did not want me to be bored because then Marcel would 

have to put up with me. 

I cannot help but think as I listened to the debate around here 

that for some, there will always be a reason why we cannot go forward on immigration reform. It could be the terrible events in Boston, it could be any one of a thing. 

The fact is that is denying reality to say we cannot go forward. 

Now is a good time. We have had eight senators who worked for 

months on this, joined by others and they go across the political 

spectrum on both parties. 

I have stated often I am a grandson of immigrants, my wife is 

a daughter of immigrants. I think of how this country is improved 

and enlarged and made better by immigrants. If the most powerful, 

wealthiest nation on earth cannot face up to reality and find a law 

that faces reality, then shame on us. Shame on us. 

This Senator believes we can. I know you believe we can, I know 

the President believes we can, and a growing number of Senators 

in both parties believe we can. 

I have often said that the Senators should be the conscience of 

the Nation. If we want to be the conscience, now is the time to 

show our conscience, and I thank you for being here. 

Secretary NAPOLITANO. Thank you, Senator. 

Chairman LEAHY. We stand in recess. 

[Whereupon, at 11:54 a.m., the Committee was adjourned.] 

[Additional material submitted for the record for Day 1 and for 

Day 2 follows.] 

(175) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
176 

Rick Judson 

Chairman of the Board 

National Association of Home Builders 

Washington, DC 

Brad Smith 

General Counsel and Executive Vice President 

Legal and Corporate Affairs 

Microsoft 

Seattle, WA 

Professor Ron Hira 

Associate Professor of Public Policy 

Rochester Institute of Technology 

Rochester, NY 

Neeraj Gupta 

Chief Executive Officer 

Systems In Motion 

Newark, CA 

Fred Benjamin 

Chief Operating Officer 

Medicalodges, Inc. 

Coffeyville, KS 

Gaby Pacheco 

Immigrant Rights Leader 

Direetor, Bridge Project 

Miami,FL 

Janet Murguia 

President and CEO 

National Council of La Raza 

Washington, DC 

Dr. David Fleming 

Senior Pastor 

Champion Forest Baptist Church 

Houston, TX 

Mark Krikorian 

Executive Director 

Center for Immigration Studies 

Washington, DC 
177 

Laura L. Lichter, Esq. 

President 

American Immigration Lawyers Association 

Denver, CO 

The Honorable Kris Kobach 

Secretary of State 

State of Kansas 

Topeka, KS 

Mark Shurtleff 

Partner, Troutman Sanders LLP 

Former Utah Attorney General 

Washington, DC 

The Honorable Bill Vidal 

Former Mayor of Denver 

President and CEO 

Hispanic Chamber of Commerce of Metro Denver 

Denver, CO 

Janice L. Kephart 

Former Counsel, September 11 Commission 

Principal, 911 Security Solutions 

Washington, DC 

Chris Crane 

President 

National Immigration and Customs Enforcement Council liS 

Of the American Federation of Government Employees 

Washington, DC 

Dr. Steven Camarata 

Director of Research 

Center for Immigration Studies 

Washington, DC 

Grover Norquist 

President 

Americans for Tax Reform 

Washington, DC 
178 

Statement of Arturo S. Rodriguez 

President of United Farm Workers of America 

Senate Committee on the Judiciary 

"The Border Security, Economic Opportunity, and Immigration 

Modernization Act, S.744." 

April 22, 2013 

Chairman Leahy, Ranking Member Grass ley, and members of the 

subcommittee, thank you for the opportunity to testify today. My name is 

Arturo Rodriguez, and I have the honor of being President ofthe United Farm 

Workers of America. Tomorrow will mark the 2Qth year since our founder 

Cesar Chavez passed away- so we think it is very appropriate that we are 

here on this historic day to talk about the future of American agriculture. I 

want to give a special thank you to Senators Feinstein with whom we have 

worked for years to solve this problem and Senator Hatch, with whom we 

have worked very closely over the last several months to come to a proposal 

supported by both agricultural employer associations and agricultural 

workers that we believe will addressa crisis in American agriculture and we 

hope will provide some stability in the years to come. 

Last week, both agricultural employers and agricultural workers joined 

together in supporting a policy proposal put together by Senators Feinstein, 

Hatch, Bennet, and Rubio that will strengthen our nation's agricultural 

industry. 

The proposal is part of the broader more comprehensive immigration policy 

submitted last week by Senators Schumer, McCain, Durbin, Graham, 

Menendez, Flake, Bennet, and Rubio. It is great to see so many of you on this 

committee today. 

Both farmers and farm workers have worked together over the last 5 months 

with the support of these Senators from both political parties and 

representing very different regions of the country in the interests of 
179 

improving our nation's agricultural industry and securing our nation's food 

supply. 

We have worked so hard to come together and we ask you as members of this 

committee to come together to support this proposal because America's farms 

and ranches produce an incredible bounty that is the envy ofthe world. The 

farmers and farm workers that make up our nation's agricultural industry are 

truly heroic in their willingness to work hard and take on risk as they plant 

and harvest the food all of us eat every day. 

But our broken immigration system threatens our nation's food supply. The 

UFW and our nation's agricultural employers have often been at odds on 

many policy issues -but we have now come together to unify our nation's 

agriculture industry. We are in a unique moment in our nation's history- and 

together with a lot of work, you on this committee can make the changes we 

need to secure our nation's food supply. 

Let me speak a little about what's at stake for the women and men who work 

in the fields and do some of what even some Congressional opponents of our 

past proposals have acknowledged are the "hardest, toughest, dirtiest jobs." 

Every day, across America, almost two million women, men, and, yes, even 

children, labor on our nation's farms and ranches, producing our fruits and 

vegetables and caring for our livestock At least 600,000 of these Americans 

are US Citizens or permanent legal residents. Our migrant and seasonal 

farm workers are rarely recognized for bringing this rich bounty to 

supermarkets and our dinner tables. And most Americans cannot 

comprehend the difficult struggles faced every day by farm worker families. 

Increasingly, however, America's consumers are asking government and the 

food industry for assurances that their food is safe, healthy and produced 

under fair conditions. 

The life of a farm worker in 2013 is not an easy one. Most farm workers earn 

very low wages. Housing in farmworker communities is often poor and 

overcrowded. Federal and state laws exclude farm workers from many labor 
180 

protections other workers enjoy, such as the right to join a union without 

being fired for it, overtime pay, many of the OSHA safety standards, and even 

workers' compensation in some states. Farm worker exclusion from these 

basic Federal Laws in the 1930s is one of the sadder chapters of our history. 

We learned painful lessons from the abusive guest worker program of the 

1940's to 1960's, known as the bracero program, and we should not repeat 

those abuses. Even when protections exist, there is often inadequate labor 

law enforcement. In California, where state laws thankfully provide most of 

the protections that Federal law does not, we have still seen dozens of farm 

workers die over the last several years for the simple lack of water and shade. 

Such poor conditions, discriminatory laws and weak enforcement have 

resulted in substantial employee turnover in agriculture. 

An unstable labor market harms farmers, farm workers and consumers. 

Numerous federal commissions have made recommendations to achieve 

stability in the farm labor market. We believe, as have both Republican and 

Democrats who have prepared those commission reports in the past, that 

improving wages and working conditions and increasing farm workers' legal 

protections would help attract and retain current workers in the farm labor 

force and end chronic employee turnover. These commissions and we 

recognize that immigration policy plays an important role in determining 

labor stability. We now turn to our goals and recommendations. 

First and foremost, we seek an end to the status quo of poverty and abuse; we 

should not continue to treat farm workers as second-class workers. We also 

know that any new immigration policy must consider the future of the work 

force upon which American agriculture and American consumers depend. 

With these goals in mind, we are very excited about what we have 

accomplished together with the nation's grower associations and I want to 

share some highlights of the agricultural labor sections in the immigration 

proposal, S. 744, the Border Security, Economic Opportunity, and Immigration 

Modernization Act of 2013. 
181 

While there are important details still to be worked out and debated, we are 

supportive of the comprehensive bill submitted by Senators Schumer, McCain, 

Durbin, Graham, Menendez, and Flake. 

The comprehensive bill includes language drafted by Senators Feinstein, 

Rubio, Bennet, and Hatch regarding agricultural employers and workers. 

Should it become law,the proposal would give professional farm workers 

presently in the United States, who have been contributing to our country by 

helping feed our nation, temporary legal status and the opportunity to earn 

permanent legal residence in the future by continuing to work in agriculture. 

Farm workers are the backbone of our agriculture industry here in the United 

States and an expeditious process toward adjustment of their status provides 

a strong incentive for those farm workers who are currently working on our 

farms and ranches to continue working in agriculture. Doing so also honors 

the people who feed our nation every day, helps farmers prosper, ensures the 

security of our food supply, and strengthens rural America's communities. 

The bill also creates a new agricultural worker visa program for the future. 

The new visa program creates a legal avenue for farm workers to enter the 

country and a way for agricultural employers to recruit farm workers in a 

legal and just manner. The protections in the comprehensive legislation 

against the current corrupt recruitment practices we witness around the 

world are critical for all workers, but in particular for agricultural workers. S. 

7 44 includes a registry of foreign recruiters and requires recruiters to post of 

a bond. Right now, in Mexico, where more than 90% of H-2A workers are 

recruited, no one knows who the recruiters are. This lack of transparency 

breeds fraud, coercion and worse. Requiring recruiters to register in the US 

and to post a bond will shed light on an industry that currently has no 

regulatory oversight either in the US or Mexico. The legislation also 

appropriately puts the ultimate responsibility with the US employers. They 
182 

must ensure that there is integrity in their labor supply chain. This concept is 

consistent with current codes of conducts of major retailers like Costco, who 

requires that companies who supply them with products to ensure 

compliance with their standards all the way down their supply chains. 

Anything less than the recruitment standards in this legislation will promote 

abuse and trafficking. 

Finally, there are many substantial changes in this compromise that greatly 

benefit agricultural employers. Agricultural employers, under this proposal, 

will not be subject to some of the paperwork and labor regulations in the 

current H-2A guestworker program. On the other hand, the employers will be 

subject to some new and stronger worker protections and enforcement 

mechanisms. The proposal's wage requirements differ substantially from the 

H-2A program, including by recognizing the variation in wage rates for 

different jobs. We believe the new program's wage rates, while beneficial to 

employers, will protect wages for those farm workers working in the United 

States. We are hopeful that the new wage rates will enhance stability for both 

agricultural employers and agricultural workers into the future. 

As a result of this compromise, farm workers are one step closer to muchearned recognition for their contributions to the United States. We believe 

this compromise could be a vehicle for improving the working conditions and 

job opportunities for farm workers. We also believe that this proposal will 

benefit agricultural employers, consumers and the nation. 

We hope it earns the support of this committee. 
183 

STATEMENT OF CHARLES CONNER 

PRESIDENT AND CHIEF EXECUTIVE OFFICER 

NATIONAL COUNCIL OF FARMER COOPERATIVES 

FOUNDING MEMBER OF THE AGRICULTURE WORKFORCE COALITION 

TESTIMONY BEFORE THE COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

APRIL 22,2013 

Chairman Leahy, Ranking Member Grassley and members of the Committee, thank you tor the 

invitation to testifY on comprehensive immigration reform legislation, in particular, the 

agriculture worker program included in the Border Security, Economic Opportunity, and 

Immigration Modernization Act (S. 744). 

I am Chuck Conner, President and Chief Executive Officer ofthe National Council of Farmer 

Cooperatives (NCFC). NCFC represents the interests of America's farmer cooperatives. There 

are nearly 3,000 furmer cooperatives across the United States whose members include a majority 

of our nation's more than 2 million farmers. 

I am also here on behalf of the Agriculture Workforce Coalition (A WC). The A WC brings 

together nearly 70 organizations representing the diverse needs of agricultural employers across 

the country. A list of A WC members and supporters tallows this testimony. The A WC came 

together out of the realization that, while America's farms and ranches are among the most 

productive in the world, they have struggled in recent years to find enough workers to pick crops 

or care for animals. The great success story that is American agriculture is threatened by this 

situation, and A WC has been working to develop an equitable solution to the problem. 

As many of you know, the formation ofthe A WC represents a significant change from the past. 

For many years, agriculture and the farming sector have spoken with many voices on 

immigration; today \Ve speak with one voice. And we are loudly saying that without people to 

work on America's farms and ranches, pick the crops, or milk the cows, all other issues in 

agriculture become irrelevant. 

Team Effort 

On behalf of the NCFC and the A WC, we commend the leadership, tenacity and commitment of 

Senator Dianne Feinstein throughout our negotiations as we worked toward a balanced approach 

for an agriculture worker program. Her efforts in collaboration with Senators Marco Rubio, 

Orrin Hatch, and Michael Bennet go! us to where we are today. Additionally, I thank the 
184 

bipartisan group of champions in the Senate who have heard our concerns, challenged us to 

compromise, and introduced a workable solution to a problem we have been struggling with for 

years. 

The agreement- reflected inS. 744 introduced by the bipartisan "'Gang of8" includes both the 

short- and long-term workforce requirements of all of agriculture; both those producers with 

seasonal labor needs and those with year-round needs. 

And a key to this landmark agreement that was reached recently was the discussions that the 

A WC had been having with representatives of the United Farm Workers (UFW) union. So it is 

my great pleasure to be joined on the panel by Arturo Rodriguez, President of the UFW. 

Agriculture Worker Program inS. 744 

U.S. agriculture competes both domestically and internationally, and the inability to find enough 

employees poses threats to our competitiveness and food security. The question is not whether 

foreign-born workers will be the ones harvesting many of our crops. The question is whether 

they will be picking those crops here in the U.S., or in other countries. To remain competitive, 

we need the stability of the earned legalization in the Blue Card Program and also future access 

to new workers in the Agriculture Worker Program offered inS. 744. 

In spite of producers' good fuith efforts to verify work authorization, the agriculture industry 

acknowledges the reality that a majority of agriculture's current workforce is unauthorized. In 

the short-term, the legislation provides that current unauthorized farm workers would be eligible 

to obtain legal status through the Blue Card Program. Granting work authorization for current 

experienced agricultural workers will preserve agriculture's workforce and maintain stability in 

the sector. These workers would have a future obligation to work in agriculture. After this 

obligation is fulfilled, along with having paid all taxes and required fines, and barring conviction 

of any felony or violent misdemeanor, these employees could obtain permanent legal status. 

For long-term stability, a new agriculture worker visa program is established that has two work 

options: 

.I "At-Will'' visa employees have the freedom to move from employer to employer without 

any contractual commitment, replicating the way market forces allocate the labor force 

now . 

.I Contract visa employees commit to work for an employer for a fixed period of time, 

giving both parties increased stability where it is mutually preferred. 

Importantly, we take great comfort in the fact that the new visa program will be administered 

primarily by the U.S. Department of Agriculture. This is a significant change from the current 

regime administered by the Department of Labor, who has demonstrated a complete lack of 

understanding of agriculture and our labor needs. 

Conner Testimony 

Senate Judiciary Commiltee 

April 22, 2013 

Page 2 of9 
185 

Achieving agreement on wages was one of the most time consuming aspects of our negotiations. 

For agriculture, it was important that we could quantify to the average producer the costs of the 

program. For many in agriculture, wages are the lion's share of their variable production costs. 

Thus, it was absolutely critical that we get this right. The negotiated wages included in S. 744 

provide our farmers and ranchers with the certainty they need to plan for the future. 

The bottom line with our efforts was to create a program that farmers and ranchers could easily 

navigate- whether they are growing almonds in California, peaches in South Carolina or apples 

in Vermont; or whether they raise beef cattle in Texas or dairy cows in Iowa. We believe the 

agreement reached, and reflected in S. 744, would provide both producers and their employees 

with a flexible yet predictable program. We look forward to working with the Committee as 

necessary on perfecting S. 744 to ensure our landmark agreement with the UFW is fully captured 

in the legislative text. 

H-2A Beyond Repair 

Given the difficulties of fmding an adequate domestic workforce for production agriculture, the 

only option for farmers and ranchers to legally find the workers they need is the H-2A program, 

Unfortunately, this program has not worked for the vast majority of agricultural employers. 

I have been asked by policy makers why we don't just try to reform what we have in place now. 

In fact, past efforts have attempted to reform the existing H-2A program, but the situation 

agriculture faces today is simply beyond repair. 

The H-2A program's basic framework is overly restrictive and difficult for an employer to 

maneuver. Furthermore, the H-2A program is only accessible for producers with seasonal needs, 

excluding the year-round needs of many producers of commodities such as dairy, livestock, and 

mushrooms, as well as other crops. In recent years it has become even more unworkable and 

costly to use. The program has become so burdensome, in fact, that producers use it only when 

they absolutely have to, thus the H-2A program provides only about two to five percent of 

agriculture's total workforce. 

A national survey ofH-2A employers conducted by the National Council of Agricultural 

Employers illustrates some of the program's significant shortcomings. It showed that 

administrative delays caused an economic loss of nearly $320 million for farms in 20 I 0 alone. 

Seventy-two percent of growers using the program reported that workers arrived after the "date 

of need,'' on average 22 days late. Mother Nature does not wait for workers that might or 

might not show up. 

Additionally, the U.S. Department ofLabor's Foreign Labor Certification Data Center reports 

that denials ofH-2A applications have increased dramatically in recent years, further 

complicating the situation and increasing costs. If there is a silver lining, the dysfunction of the 

H-2A program has Jed to a growing bipartisan consensus that the program is beyond repair and 

should be replaced. S. 744 would in fact sunset the H-2A program one year after the new visa 

program is enacted. 

Conner Testimony 

Senate Judiciary Committee 

April22, 2013 

Page 3 of9 
186 

Our goal with the new, more flexible and market-oriented program contained in S. 744 is that it 

meets the diverse needs of American agriculture-from the seasonal needs of many fruit and 

vegetable growers to the year-round needs of dairy producers, nursery owners and others. We 

also hope that such a visa program would benefit the great majority of farm workers who would 

now have greater freedom in choosing where and when they work. 

Why Action is Needed 

It is widely recognized that one of the industries most affected by our outdated and flawed 

immigration system is the agriculture industry. The labor situation in agriculture has been a 

concern for many years, but is moving towards a breaking point. There are roughly I.8 to 2 

million people who perform hired farm work in the U.S. Each of these workers supports two to 

three other employees in jobs like sales, marketing and transportation. Yet, a combination of 

government statistics arid other evidence suggest that at least 50 percent and likely 70 percent or 

more is unauthorized to work in the U.S., though the workers typically show employers 

documents which appear genuine on their face. 

Today, large segments of American agriculture face a critical lack of workers, a shortage that 

makes our farms and ranches less competitive and that threatens the abundant, safe and 

affordable food supply American consumers enjoy. For example, a 20I2 survey by the 

California Farm Bureau found that 7I percent of the tree fruit growers, and nearly 80 percent of 

raisin and berry growers, were unable to find an adequate number of employees to prune trees 

and vines or pick crops. This has been an ongoing problem. In 2008, Texas A&M University 

reported that 77 percent of vegetable farmers reported scaling back operations. More than 

80,000 acres of fresh produce that was once grown in California have been moved to other 

countries. Without adequate labor, estimates are that thousands of furms could fail and farm 

income could drop by five to nine billion dollars. 

With labor costs and labor instability being a significant factor to our global competitiveness, we 

are seeing our market share slip to countries with lower costs of production. Already, imports 

are fast commanding a larger share of U.S. consumption. For example, the value of U.S. fruits 

and vegetable imports has grown to more than twice the value of exports. U.S. strawberries have 

moved from a comfortable trade surplus to a trade deficit in just four years. In fact, the Florida 

strawberry and tomato industries are fighting for their survival in the face of a fast-changing 

import picture. Likewise, each American apple- over 20 billion-must be picked by hand in 

over 36 states. And we need a reliable and skilled workforce to do that, otherwise we export our 

jobs to foreign orchards. Collectively, the apple industry alone needs over 70,000 harvest 

workers to get the crop off of the trees each year. 

The problem exists for all facets of agriculture, beyond just fruits, vegetables, nuts and nursery 

crops. A separate Texas A&M study in 2012 focused on dairy, and found that farms using an 

immigrant workforce produce more than 60 percent of the milk in our country. Without these 

employees. economic output would decline by $22 billion and 133,000 workers would lose their 

Conner Testimony 

Senate Judiciary Committee 

April 22, 2013 

Page 4 of9 
187 

jobs. Dairy farmers in this country have faced more months since late 2008 with flat to negative 

operating margins than they have profitable months. 

Dairy is a labor intensive industry- cows must be milked two to three times a day, 365 days a 

year, including Thanksgiving, Christmas, Easter and the Fourth of July. Other commodities have 

their harvest over the course of a few weeks once, maybe twice a year. For dairy farmers, their 

harvest comes multiple times per day, every day. 

This labor situation is simply not consistent with those who say that U.S. agriculture should just 

offer better wages. According to a 2009 Comell University study, jobs on dairy farms in New 

York averaged nearly $10 per hour, and usually included benefits as well. In spite of stable yearround jobs with wages averaging well above minimum wage and often with some benefits, few if 

any workers born in this country respond to job postings for dairy farm work. 

Furthermore, an adequate and skilled workforce is a must to help ensure the well-being, health 

and productivity of herds. These are not entry-level jobs. Caring for herds of 1,500-pound eows 

that must be fed several times a day, given health exams routinely, milked multiple times a day, 

and bred and calved about once a year takes training and experience. And while others in 

agriculture at least have the H-2A guest worker program, those with dairy or other livestock 

operations have been left without a legal channel to find workers. 

NCFC's membership also includes many of the banks in the Farm Credit System who work with 

their farmer members to address various risk factors including input and price risk, weather risk, 

and risk associated with changing interest rates. Increasingly concern with maintaining a stable 

labor supply is the risk factor with which agriculture producers are most concerned. 

Talk to farmers and they will tell you that this is the issue that keeps them awake at night. A 

recent article in The New York Times detailed the challenges farmers there face, partly because 

they are so close to the Canadian border and as a result experience stronger federal immigration 

enforcement operations in their area. One farmer reported having to let 12 of his 14 workers go 

after a labor audit. Two I-9 audits on Idaho dairy farms resulted in upwards of an 80 percent 

dismissal rate. The list goes on. 

The concern over farm labor availability is already influencing farm investment and management 

decisions. Many successful, progressive operations that have positioned themselves for growth 

opportunities are holding back over concern with 1-9 audits, ICE activities, burdens associated 

with use of the H-2A program and the possibility of mandatory E-Verify without a workable visa 

program. 

Even more concerning is that the lack of a stable labor supply will cause farms to go out of 

business, shrink in size, or shift to low-labor, but less profitable commodities. The economic 

impact of that will be dramatic. For example, a recent study by Farm Credit East, which I am 

submitting along with my testimony, examines the northeastern U.S. agricultural sector. It 

estimates that, without an adequate farm labor workforce, over 1,650 farms across the region 

could go out of business, meaning a loss of$1.6 billion in lost agricultural production and nearly 

Conner Testimony 

Senate Judiciary Committee 

April 22, 2013 

Page 5 of9 
188 

20,000 jobs destroyed. Without workers to count on, our farmers and ranchers simply cannot 

continue to provide tor America. 

In closing, I believe we are facing a once in a generation opportunity to reform our nation's 

immigration policy. We've done a lot ofwork; we have more work to do. All facets of 

American agriculture- tram big to small, tram all regions and all commodities- stand ready to 

work with this committee as you advance S. 744 through the legislative process. 

Thank you again for holding this hearing and recognizing the unique needs of agriculture in this 

important debate. l look forward to responding to your questions. 

Conner Testimony 

Senate Judiciary Committee 

April 22, 2013 

Page 6 of9 
189 

Founding Association Members of A WC: 

American Farm Bureau Federation 

American Nursery & Landscape Association 

Florida Fruit & Vegetable Association 

National Council of Agricultural Employers 

National Council of Farmer Cooperatives 

National Milk Producers Federation 

USA Farmers 

U.S. Apple Association 

United Fresh Produce Association 

Western Growers Association 

Western United Dairymen 

Coalition Partners: 

Agriculture Coalition tor Immigration Reform 

A WC Supporters: 

Agricultural Council of California 

American AgriWomen 

American Beekeeping Federation 

American Frozen Food Institute 

American Mushroom Institute 

American Sheep Industry Association 

California Association of Winegrape Growers 

California Avocado Commission 

California Citrus Mutual 

California Giant Berry Farms 

California Grape and Tree Fruit League 

California Women lor Agriculture 

Certitled Greenhouse Farmers 

Colorado Nursery & Greenhouse Association 

Co Bank 

Cooperative Network 

Farm Credit East 

Florida Citrus Mutual 

Florida Farm Bureau 

Florida Nursery, Growers & Landscape Association 

Conner Testimony 

Senate Judicimy Committee 

April 22, 2013 

Page 7 iJ[9 
190 

Georgia Farm Bureau Federation 

Georgia Fruit and Vegetable Growers Association 

Georgia Green Industry Association 

His panic American Growers Association 

Idaho Dairymen's Association 

Illinois Farm Bureau 

Louisiana Farm Bureau Federation 

MBG Marketingffhe Blueberry People 

National Christmas Tree Association 

National Farmers Union 

National Grange 

National Onion Association 

National Peach Council 

National Potato Council 

Northeast States Association for Agricultural Stewardship 

Northwest Farm Credit Services 

OFA, An Association of Horticulture Professionals 

Oregon Association ofNurseries 

Produce Marketing Association 

Red Gold, Inc. 

Society of American Florists 

South East Dairy Farmers Association 

Southeast Milk, Inc. 

State Agriculture and Rural Leaders 

Sweet Potato Council of California 

Texas Citrus Mutual 

Texas International Produce Association 

Texas Vegetable Association 

U.S. Custom Harvesters, Inc. 

United Ag 

United Dairymen of Arizona 

Utah Dairy Producers 

United Egg Producers 

Village Farms International, Inc. 

Wine America 

Wine Institute 

Yankee Farm Credit 

Yuma Fresh Vegetable Association 

Conner Testimony 

Senate Judiciary Committee 

April 22, 2013 

Page 8 of9 
191 

Farm Labor and Immigration Enforcement 

Economic Impact to the Northeast 

Farm businesses throughout the Northeast United States depend on a stable workforce to produce a 

safe, reliable lood supply as well as other horticultural products. Immigrant workers have been and 

will likely continue to be a significant part of this workforce. Farm Credit East has undertaken the 

following analysis to better understand the economic impact of a potential farm labor shortage 

resulting from significantly enhanced immigration entbrcement actions. with no new agricultural 

guest worker provisions. Without foreign labor, many farm businesses in the Northeast and 

nationwide will face critical labor shortages. 

Northeast agricu lturc includes significant labor-intensive production such as vegetable, fruit, 

greenhouse, nursery, and dairy. These sectors can be highly vulnerable' to shortages of labor. The fact 

is that labor disruptions can quickly result in severe operational and linancial problems for many 

farms, Most farms simply do not have the financial resources to survive for very long if they cannot 

produce and market their products. With the increasing consumer demand for quality products, a 

delay in harvest caused by a labor shortage can have a dramatic negative impact. 

Northeast agricultural employers comply with existing federal and state laws in hiring workers. 

Some of this workforce has evolved into a population who presents identity documents and is then 

employed on the same federal and state terms as native-born workers. This includes deducting and 

remitting the appropriate payroll taxes and assessments on behalf ofthese workers. These to reignborn farm workers that are an integral part of American agriculture are hard-working individuals 

filling an umnct need in the labor market. It has become apparent, that even with today's high 

unemployment levels, those on the unemployment rolls in the Northeast are simply not seeking jobs 

as limn laborers. Indeed, agricultural employers have had little success attracting and keeping local 

Americans in farm jobs. Whether it is their location, often away from population centers. working in 

variable weather conditions, the physical nature ofthe work, or the fact that many farm jobs are 

intermittent or seasonaL American-born workers have shown little interest in farm labor. 

1 This analysis defines '"highly vulnerable'' farms a" those that could be forced to close or reduce operations by two~ thirds 

or more, after a two year period in which no undocumented farm workers were available and no new guest worker 

provisions were offered, This analysis covers the states of New York, New Jersey. Connecticut. Massachusetts, New 

Hampshire and Rhode Island. 
192 

Farm Credit East Knowledge &change Report 

In light of these considerations, we present the Fann Credit East analysis: 

• Approximately 1,732 Northeast furms are highly vulnerable to going out of business or being 

forced to severely cut back their operations due to a labor shortage caused by an aggressive, 

enforcement-only immigration policy. 

• These 1, 732 highly vulnerable farms are some of the largest in the region; their total sales of 

fann product are estimated to exceed $2.4 billion. This is approximately 36% of the value of 

the region's agricultural output. 

$8,00CJ 

57,000 

i $6,000 

! $5.000 

.5 

.~ $4,000 

~ -g S3.,000 

li 

!if $2,000 

Si,roo 

$0 

Northeast Agricultural Production 

value of ag production agvalue highly vulnerable 

• On-farm employment: 20,212 full-time, year-round positions could be eliminated (this is on 

top of seasonal jobs lost, and not counting farm owners) 

Northeast Full-time Agricultural Employment 

50,000 

45,000 

11'1 40,000 

J:l 

.2, 35,000 

] 

g 30,000 

~ 25,000 

~ 

oi' 20,000 

E 

:!: 15.000 

'5 

l,ol.. 10,000 

5,000 

jobs highly vulne-rable 

• Productive cropland: These furms operate over 1.1 million acres of cropland. If these highly 

vulnerable farms were to cease or reduce operations, some of this acreage might switch into less 

intensive agriculture, but thousands of acres would potentially be converted to non-agricultural 

uses. This would be at cross purposes to the region's long standing efforts to preserve farmland. 

2 
193 

Farm Credit East Knmv/edge Exchange Report 

• Farm-related economic impact: The impact goes beyond the farm gate, and could undermine, 

in part, the region's agri-business sector that our local and state economics depend on. In 

addition to the loss offarm emplo)ment, it is estimated that 55,311 off-farm jobs in 

agriculturally related businesses in the Northeast could be impacted. Many of these positions 

are full-time jobs held by local citizens. 

Profile of Six Northeastern States 

Total Farms All Sizes 

Farms with sales > $10,000 

Farms with Sales >$50,000 

Farms with Hired Workers 

Value of Agricultural Production 

Total Acreage in Cropland 

Number ofF arm Workers 

64,671 

44,545 

13,375 

15,948 

$ 6, 793,432,000 

5,308,138 

116,829 

Profile of Northeast Agricultural Industry Considered Vulnerable 

Total 64,671 6, 793,432,000 5,308.138 116,829 70,351 

Dairy 6,058 2;754,114,000 1,877,316 16,114 5,71(} 

Fruit 6,640 643,826,000 210,111 27,940 22,116 

Nursery/(JH 6,603 1,386, 7,39,0{)0 161,535 27,602 13,593 

Vegetable 4,268 653,841,000 358,873 17,340 11,154 

Other Crop,? 70 58,40{),000 6,115 ?;624 1,972 

Farm Labor Shortages 

Farms Considered Highly Vulnerable* 

By Farm Type 

Total 1.732 2,420,504,000 1,109,448 50,103 29,894 

Dairy 528 l ,076,496,000 732,664 8,679 3,071 

Fruit 407 309,975,000 101,624 15,345 11,987 

Nursery/GH 429 627,008,000 68,043 13,970 6,523 

Vegetable 332 281,607,000 201,685 9,909 7,113 

Other Crops 36 51;577,000 5,4(}] 2;201 1,654 

2 Other crops were measured only for CT, and include tobacco. 

3 

46,478 

10,404 

5,823 

1!1,009 

6,186 

652 

20,212 

5,609 

3,017 

~,585 

4,455 

547 
194 

.farm Credit East Kno-wledge Exchange Report 

By State 

Connecticut 164 273,090,000 45,487 6,558 3,973 2,585 

Massachusetts 100 109,914,000 18,431 2,954 1,756 1,198 

New 40 55,136,000 Hampshire 18,425 1,322 843 479 

New Jersey 350 461,23 5, 000 103,852 13,481 .8,319 5,162 

New York 1,049 1,508,996,000 919,241 25,247 14,737 10,510 

Rhode Island 31 12,.133,000 4,012 544 266 278 

Percentage Considered Highly Vulnerable 

By Farm Type 

Total 13% 36% 21% 43% 42% 43% 

Dairy HI% 39% 39% 54% 54% 54% 

Fruit 27% 48% 48% 54% 54% 52% 

lljitrsetylGH 23:% 45% 42% 47% 48% 47"/o 

Vegetable 23% 43% 56% 67% 64% 72% 

Other. Ctops 68% 88% 88% 84% 84% 84% 

By State 

Connecticut 22% 49% 71% 50% 53% 46% 

Massaehusetts 8% 22% 10% 23% 26'l~ 28% 

New 9% 27% 14% 26% 26% Hampshire 28% 

New Jersey 22% 46% 21% 55% 57% 53% 

New York II% 34% 21% 42% 41% 44% 

Rho(je Island 17% 18% 16% 33% 31% 3.5% 

4 
195 

Farm Credit East Knowledge Exchange Report 

In summary, an aggressive, enforcement-only approach to undocumented immigrants could result in a 

severe labor shortage for Northeast farms, which would be not only disastrous to Northeast agriculture, 

but would have ripple effects throughout the economy as well. 

Notes about methodology: 

Raw data for this analysis was obtained from the USDA 2007 Census of Agriculture. FCE broke down 

the data by number of workers (those with a greater number were considered more vulnerable), farm 

types (some types are more labor-intensive than others), as well as the value and land area of their 

production. Each category was given a subjective assessment of vulnerability determined by a survey of 

Farm Credit staff based upon their knowledge ofNortheast agriculture. Responses were averaged and 

multiplied against total number of farms. Upstream and downstream impact was estimated by taking 

data from the U.S. Bureau of Census, County Business Pattern, and multiplying it by a percentage 

reduction in agricultural output. 

for more information: 

Robert A. Smith 

Farm Credit East 

2668 State Route 7, Suite 21 

Cobleskill, NY 12043 

518.296.8188 

robert.smith@farmcrediteast.com 

Famz Credit East, ACA serves approximately 12,000 customers in the states of New Jersey. Connecticut. 

Massachusetts, Rhode Island and major parts of New York and New Hampshire. Part of the nationwide 

Famz Credit System, Farm Credit East is a customer-owned lender dedicated to serving farmers, 

commercial fishermen and the forest products sector. Farm Credit East is committed to providing 

economic information constructive to the advancement of Northeast agriculture. 

5 
196 

Lake Home 

IJusiness Services, Inc. B<mkkc(•pin~. Payroll & H·ZA Bm.hwss Srnkts 

Written Testimony by Alyson Eastman 

President and Owner of Lake Home Business Services, Inc. 

Dba Book-Ends Associates 

U.S. Senate Committee of the Judiciary 

"Hearing on Comprehensive Immigration Reform Legislation" 

Aprilzznd, 2013 

Picture of Lake Home Farm, Inc. located in Orwell, Vennont 
197 

Good Morning! My name is Alyson Eastman, and I am the President and Owner of Lake Home Business Services, Inc., 

doing business as Book-Ends Associates. I purchased Book-Ends Associates from the previous owner in 2010 after 

collaboratively working with her for five years. Book-Ends Associates has been assisting H-2A employers for since 

1993. At Book-Ends Associates, we offer a variety of Business Services, including Payroll, Bookkeeping and H-2A 

processing. I'd like to thank Chairman Leahy, and all the Members of the Committee for providing me the opportunity to 

appear before you today on behalf of the agricultural employers that I represent in Vermont, New Hampshire and New 

York as an H-2A Agent. As a member of the National Council of Agricultural Employers and through my work with US 

Apple I've kept abreast of the Ag issues on a National level through weekly H-2A conference calls and annual meetings. 

I am a fourth generation farmer, born and raised on Lake Home Farm, Inc., a 278 acre family dairy farm in Orwell, 

Vermont. I have firsthand experience with dairy and beef farming. In fact, we sold our dairy cows in 2006 in part 

because of our inability to hire legal, reliable domestic employees. Since then, we have been raising Grass Fed Beef, 

which can be managed mostly by my father. Though I still have many family members that currently own and operate 

dairy farms within a 20 mile radius of our farm, there is not a day that goes by that I regret going into business to assist 

farmers from the business side. 

Agricultural employers face many challenges these days, but a shared challenge faced by all farmers seems to be 

finding legal and experienced laborers who can provide the agricultural employers with competence, predictability, and 

stability. In fact, Vermont's Legislature recognized the importance of the H-2A program in our Agricultural Sector- please 

refer to the enclosed House Resolution H.R. 10. \/\lith such help, employers would be free to focus on other aspects of 

their operations; rather than who will milk the cows, who will harvest the produce or who will process this year's turkeys 

for Thanksgiving. H-2A currently is limited to a 10 month maximum. The proposed bill would be useful as it no longer 

draws a distinction between the seasonal and non-seasonal employers such as dairy farmers. This will allow dairy 

farmers to hire visa workers and also some of their workers could even be considered for legalization. At present, there 

is no program to get documented workers here legally for dairy. The Vermont Legislature is considering a driving 

privilege card that is designed to address undocumented workers- refer to S.38. I conclude my introduction by stating a 

solid Immigration Bill will solidify and resolve many of these above issues. 

2 
198 

The remainder of my testimony will concentrate on the following three issues that I feel are most important: 

Misconception that Foreign workers displace US Workers 

Challenges with the current H-2A application process 

Experienced Workers 

MISCONCEPTION THAT FOREIGN WORKERS DISPLACE US WORKERS 

A common misconception is that H-2A seasonal guest workers are displacing US Domestic workers. In our office we 

not only facilitate the H-2A Application for USDOL and Immigration Petition for employers, but in some cases we also 

process their payroll. What I have seen is a direct correlation between the hirtng of H-2A workers and the hirtng of 

domestic employees, based on payroll data. In short, the harvest work done by the H-2A seasonal guest workers sets 

up year-round employment opportunities for domestic help. 

I have received permission from two of my clients to share with you data from their operations that will help make my 

point: 

Forrence Orclhards, Inc. in Peru, New York applied and petitioned for the following foreign workers in 2012: 

200 H-2A workers from Jamaica to pick apples over an eight week period 

12 H-2A workers from Jamaica to harvest apples, prune and grade apples over an eight month period 

12 H-2A workers from Jamaica to harvest, sort and grade apples over a five month period. 

The above foreign workers created 50 year-round domestic jobs. Their payroll for the fiscal year wihich ended on 

6/30/12 was $2,359,500.00. 

Sunrise Orchards, Inc. in Cornwall, Vermont applied and petitioned for the following foreign workers in 2012: 

44 H-2A workers from Jamaica to pick apples over a 9 week period 

7 H-2A workers from Jamaica to harvest, prune, pack and grade apples over an eight month pertod 

1 H-2A worker from Jamaica to operate agricultural equipment and make deliveries over an eight month period. 

The above seasonal workers clearly created approximately 20 US Domestic year round positions. Also to be noted is the 

fact that this is a $700,000.00 payroll for the fiscal year end of 12/31/2012. 

My point is that without the H-2A workers neither Forrence or Sunrise would find it pcssible to harvest the apples 

according to the quality method and therefore would not have a marketable crop for the fresh fruit market that would be 

3 
199 

stored, sorted, packed, and shipped- work that in large part is done by "local" help. All employers will tell you that it 

requires appropriate timing and skilled labor to pick the produce in such a way that will ensure a quality product and 

market opportunity. 

I would also like to add that money eamed by H-2A workers is put back into our own economy. Each fall U-haul trucks 

will be loaded with the following: barrels full with goods from places like Walmart & Costco, purchases such as 

motorcycles, washing machines, lawn mowers, weed whackers and even chainsaws. The baggage trucks have routes 

that have been in place for years. The items are all shipped from the Fort Lauderdale Port to the final destination where 

the worker or their family will claim it. It is cheaper for the H-2A worker to purchase such ttems in the US and pay to 

have them shipped to their home country. The convenience stores in the rural locations make sure to stock their shelves 

accordingly upon the arrival of the seasonal ag workers. 

CHALLENGES WITH CURRENT H-2A APPLICATION PROCESS 

Employers face many challenges with the current H-2A Application Process, and the majority agree that the issues are 

simply because U.S. Department of Labor does not understand agricu~ure. In reading further I believe one will 

understand the importance for US Department of Ag to administer the program going forward rather than US 

Department of Labor. For example, in 2010 Stonewood Farm (in my hometown of Orwell) applied for 18 seasonal 

foreign laborers to assist with slaughtering turkeys from mid-October until the beginning of December. U.S. Department 

of Labor sent a Notice of Deficiency because as it was unclear to them: 1) who did this work, and 2) why temporary 

workers were needed. The fact that Thanksgiving happens once a year and this farm had 27,000 turkeys to slaughter 

and process between October 11 ~and December 3"'apparently was lost on them! I've enclosed the Notice of 

Deficiency and the employer's response- please refer to the enclosed pages labeled Exhibit 1. 

Another example is in 2012, Mother Nature was quick to bring on the warm weather and an early spring in New 

England. Many apple trees had already gone to bud when they were damaged by an otherwise "normal" spring frost, 

and in some orchards, much of the surviving young fruits were by hit by hail. Some employers had a total crop loss and 

therefore did not apply for any foreign workers. In 2013 some of them decided they'd like to apply for foreign workers to 

dean up the orchard floor and prune the trees, in order to get the orchard ready, after last year's loss. US Department of 

Labor sent a Notice of Deficiency asking why the temporary dates of need changed from the previous applications. 

4 
200 

Please refer to the enclosed pages labeled Exhibit 2 for the Notice of Deficiency and also the employer's response. 

NOTE- many employers are growing new varieties which make their seasons longer and we've experienced numerous 

Notices of Deficiencies across the country as US Department of Labor requires proof and written justification for the 

longer harvest schedule. 

The application process is very time-sensitive. The employer must: list the job opportunity at 60 days prior to date of 

need, apply to US Dept of Labor 45 days prior to date of need, and, if applicable, answer any Notice of Deficiencies in 

order to obtain a Letter of Acceptance, and then file a Recruitment Report according to the Notice of Acceptance to 

obtain a Labor Certification. Upon receipt of the Labor Certification an 1-129 Petition is submitted to Immigration. It is 

nearly impossible to get workers here in timely fashion due to the convoluted process and the unnecessary Notices of 

Deficiencies. These employers are in the H-2A program because they want a legal workforce, reliable, experienced 

workface. However, in the last 4 years it has become more difficult for employers to navigate the bureaucratic processes 

of the program in order to comply with the tougher regulations. The H-2A employers desperately need a user-friendly 

guest worker program that will enable them to obtain their current legal H-2A employees in a timely manner. For the 

reasons above, it would be most advantageous for USDA to facilitate the application processing for the proposed NonImmigrant Agriculture Visa. 

I've traveled to DC on several occasions including two bipartisan meeting with US Department of Labor officials and 

members of Congress which took up the better part of each day. There is bipartisan agreement that the current system 

is broken and that the H-2A program as it stands today is nearly impossible to use. Workers have been arriving late for 

many reasons, some I've already stated. It truly means that farms may go out of business if the produce isn't picked 

timely or the turkeys are slaughtered the week after Thanksgiving. I think back to August of 2010 when there was no 

movement of workers because Department of State had been notified by U.S. Department of Labor not to let any 

Jamaican workers enter the country due to an ongoing investigation of Jamaica Central Labor Organization (JCLO). 

Thankfully, Senator Leahy's seasoned staff quickly sprung into action. An agreement was reached within a week and 

each employer signed an affidavit that they would not take any deductions from the workers pay for JCLO. Another 48-

72 hour delay and we would have seen thousands of bushels of apples on the ground. Needless to say our office didn't 

get any sleep for a straight week just knowing crop insurance wouldn't cover this type of loss. 

5 
201 

EXPERIENCED WORKERS 

H-2A workers return to the same employer(s) each year and are like family to the employers. I enjoy going onsrte to 

Sunrise Orchards, Inc. during harvest. It's great to see the entire domestic staff happily greet the bus of H-2A workers as 

they arrive for harvest. Bamey Hodges Jr and his wife Dee raised their children on the fann; now Bamey Hodges Ill is 

the President. I love the fact that some of their H-2A Jamaican workers have been coming for over 30 years and they 

talk about watching their boss grow from a young child to a grown man. It is important to H-2A employers such as 

Bamey Hodges Ill that he can continue to get his experienced workers back each year. Barney has said, "Without these 

experienced H-2A workers my orchard would be crippled and we'd be done fanning and looking at developing." 

Please note the term "experienced" and also note the fact that these H-2A workers return year after year to the same 

farm. Unfortunately, currently in Vermont, H-2A employers cannot require any experience on their H-2A applications. 

That's right. .. each employer has to hire any willing and able individual. This is due to the Prevailing Wage Survey, a 

broken system that is currently in place in Vermont. The survey is an attempt to use wages paid by employers in a given 

sector as a guide to set wages for H-2A employees. It is poo~y handled and lacks credibility. For example, in Vennont 

the survey goes to all apple orchards, including those that do not use H-2A workers- each orchard is asked if they 

require experience, what they pay hourly and/or as a piece rate, as well as various other questions. The interesting part 

is that the only non H-2A Orchards in Vennont are "pick your own," which would make the results inconclusive. For 

example, an orchard in Vermont has to pay $1.00 per box of handpicked cider apples, whereas an orchard 1 mile away 

across Lake Champlain in New York can pay .62 per box for handpicked cider apples. 

Imagine for a moment you buy a McDonald's franchise and U.S. Department of Labor tells you that you must hire any 

willing and able individual and you cannot require that they have previous experience- yet you have to pay them all 

$10.91 per hour, provide housing and pay for transportation. This includes high school students. If the worker is not 

experienced why can't the employer pay start them at minimum wage and give raises on merit? 

6 
202 

CONCLUSION 

The only con I see is the proposed name of the W-2 and W-3 Visas since all employees' annual wages are repcrted on 

form W-2 and the gross for the employer is reported on form W-3. 

The pros certainly outweigh the cons. I feel that all employers will be in favor of the written part of the bill which refers to 

an employers ability to give preference to the loyal H-2A wor1<er who has wor1<ed for the employer three out of the last 

four years. Also, the logic behind the proposed wage rates seems much more commonsensical and affordable. The 

idea of the W-2 or W-3 Visa is exciting as it should make the transferring of workers between employers easier and more 

transparent Though the majority of my testimony is about H-2A, it is believed that those undocumented workers also 

follow much of what is said above. It would be a great opportunity for the employer to obtain a legal workforce and 

provide them with stability. I believe that the public does not understand that the many of the undocumented wor1<ers 

have been paying into Social Security and Medicare with the expectation that they would never benefit from the system. 

It seems ludicrous to me to even consider sending all the undccumented wor1<ers home as it would significantly impact 

our Social Security and Medicare funding, while at the same time losing those folks who support our farms by doing jobs 

that Americans simply don't want to do. No doubt that whether one is referring to an undocumented Ag wor1<er or an H2A Ag worker, they share the following in common: these wor1<ers are ambitious and here to wor1<, they want to please 

their employers and improve their lot in life, and they are willing to do the jobs that we cannot get Americans to do. Let's 

not forget through doing these jobs that Americans don't want, they create other jobs on the farm for the domestic 

wor1<er. 

Thank you again for providing me with this oppcrtunity to testify. I look forward to answering any questions you might 

have, 

7 
203 

~tntt nf 1fltrmnnt 

31tnust nf ittprtstntatiuts 

:19lhrutpdttr, l!Jernutttt 

31fnust m.esnlutinu 

H.R.lO 

House resolution emphasizing the importance of Jamaican H2-A workers to Vermont's agricultural 

economy 

Offered by: Representatives Jewett of Ripton, Turner of :Milton, Partridge of Windham, Lawrence 

of Lyndon, Botzow of Pownal, Marcotte of Coventry, Johnson of South Hero, Stevens of Shoreham, 

Acinapura of Brandon, Bartholomew of Hartland, Branagan of Georgia, Browning of Arlington, 

Buxton of Royalton, Campion of Bennington, Canfield of Fair Haven, Clarkson of Woodstock, 

Conquest of Newbury, Copeland-Hanzas of Bradford, Deen of Westminster, Devereux of Mount 

Holly, Fisher of Lincoln, Gresbin of Warren, Helm of Fair Haven, Howrigan of Fairfield, Johnson of 

Canaan, Keenan of St. Albans City, Kilmartin of Newport City, Lenes of Shelbnrne, Malcolm of 

Pawlet, Manwaring of WJ.!mington, Marek of Newfane, McAllister of Highgate, McNeil of Rutland 

Town, Miller of Shaftsbury, Mitchell of Barnard, Mrowicld of Putney, Pearson of Burlington, Peaslee 

of Guildhall, Shand of W eathersfield, Smith of New Haven, Taylor of Barre City and Toll of Danville 

Whereas, for many years, Vermont's agricultural community has been heavily dependent on 

seasonal Jamaican contract labor to harvest crops, and 

Whereas, Vermont agricultural employers in the H2-A temporary agricultural worker visa program 

make concerted efforts to advertise for and hire United States citizens and are required to demonstrate 

a need in order to qualify for H2-A employees, and 

Whereas, workers with H2-A permits cannot displace workers from the United States, and 

employers are required to treat H2-A guest workers and United States citizen workers identically, and 

Whereas, among the agricultural operations reliant on seasonal Jamaican labor are poultry and 

vegetable farms, greenhouses, and apple orchards, and 

Whereas, many Vermont farmers rely on sales of poultry and vegetables for a significant portion of 

their revenue, and 

Whereas, greenhouses are fundamental for the initial cultivation of many crops, and 

Whereas, according to the Vermont Tree Fruit Growers Association, the state's fresh apple crop is 

valued at $12-15 million annually, and value-added products including cider, applesauce, hard cider, 

and other apple products double the total cash value of the state's apple crop to $25-30 million, and 

Whereas, Jamaican workers are admitted to work temporarily in the United States as a result of the 

H2-A visa program that the United States Department of Homeland Security administers in 

conjunction with the United States Department of Labor (DOL), and 

Whereas, these Jamaican workers have long proven their worlh to Vermont's farmers and orchard 

owners, ofterr returning to the same farms year after year, skillfully and. conscientiously completing 

vital farm activities, and 

Whereas, without H2-A labor, many Vermont farmers and orchard owners will find it difficult to 

plant, grow, arrd harvest their crops on time, arrd 

VT LEG 2691 BB.l 
204 

'Whereas, beginning in the autumn of 2010,Vermont's farmers have confronted new regulatory 

barriers to hiring Jamaican workers, barriers that are slowing the admission of these workers into the 

United States and denying the Jamaicans their comprehensive Jamaican benefits, and 

Whereas, Jamaican agricultural workers are specifically impacted because DOL has declared that 

the nonprofit Jamaican Central Labour Organisation (JCLO) is a recruitment organization that charges 

a recruiting fee despite JCLO' s assertions to the contrary, and 

Whereas, JCLO furthers the mutual interests of both growers and employees, acts as a useful 

intermediary, promotes employment standards, and provides support services including: advising 

workers of employment conditions and welfare benefits; meeting workers at the United States ports of 

entry and assisting them in clearing customs; ensuring that workers and employers adhere to the terms 

and conditions of employment; periodically visiting housing and work sites to assist in the resolution 

of work-related or domestic disputes; ensuring that workers receive proper medical attention; and 

monitoring the employers' payroll documentation, and 

Whereas, through 2010, employers sent tluee payroll deductions, including an administrative fee, a 

social security fee, and a health insurance fee to JCLO and another 19 percent of each worker's 

American salary to a bank account for family use in Jamaica, and 

Whereas, specifically, the administrative fee was partially allocated to defray program costs which 

the J arnaican government incurred, and 

Whereas, Jamaican H2-A workers in the past arrived in the United States with their 

JCLO-administered benefits, but starting in 2011, they will no longer receive these benefits, and, 

consequently, demands on Vermont's system ofpnblic services could increase proportionately, and 

Whereas, the Department of Homeland Security's characterization of Jamaican workers' 

employment deductions as a recruitment fee threatens to cause serious harm to Vermont's agricultural 

economy, including the loss of domestic employment opportunities, diminished product quality, 

degradation of Vermont's working landscape, and the potential loss of millions of dollars in Vermont 

crops, now therefore be it 

. Resolved by the House of Representatives: 

That the viability of Vermont's specialty crop producers' 2011 harvesting operations, many of 

which rely on Jamaican workers, is seriously at risk because of the uncertainty surrounding t11e H2-A 

program, and be it further 

Resolved: That the issue of the benefits provided by the Jamaican Central Labour Organisation 

should not risk the future of the H2-A program and its successful implementation in Vermont and New 

England, and be it further 

Resolved: That this legislative body urge the United States Department of Homeland Security and 

the United States Department of Labor to coordinate efforts that will ensure the reliable issuance of 

H2-A visas for Jamaican agricultural workers and the predictable supply of high-quality labor for 

Vermont producers, and be it further 

Resolved: That the United States Department of Homeland Security continue to permit employer 

deductions for payments to JCLO, and be it further 

Resolved: That the Clerk of the House be directed to send copies of this resolution to United States 

Se~retary of Homeland Security Janet Napolitano, to United States Secretary of Labor Hilda Solis, to 

Uruted States Secretary of Agriculture Tom Vilsack, to the Vermont Coogressional Delegation, to 

Vermont Secretary of Agriculture Chuck Ross, to Vermont Secretary of Commerce and Community 

Development Lawrence Miller, and to Vermont Commissioner of Labor Anne Noonan. 

Attested to: 

~~t.~ 

Donald G. Milne 

Clerk, House of Representatives 

VTLEO 2691BB.l 
205 

AS PASSED BY SENATE 

2013 

S.38 

S.38 

Page 1 of7 

An act relating to expanding eligibility for driving and identification 

privileges in Vermont 

It is hereby enacted by the General Assembly of the State of Vermont: 

Sec. 1. 23 V.S.A. § 603 is amended to read: 

§ 603. APPLICATION FOR AND ISSUANCE OF LICENSE 

* * * 

(d) In addition to any other requirement of law or mle, a Except as 

provided in subsection (e) ofthis section: 

Ol..A citizen of a foreign country shall produce his or her passport and 

visa, alien registration receipt card (green card), or other proof of legal 

presence for inspection and copying as a part of the application process for an 

operator license, junior operator license, or Ieamer permit. Notwithstanding 

any ether law or mle to the contrary, an 

(2) An operator license, junior operator license, or learner permit issued 

to a citizen of a foreign country shall expire coincidentally with his or her 

authorized duration of stay. 

(e){l) A citizen of a foreign country unable to establish legal presence in 

the United States who :fumishes reliable proof of Vermont residence and of 

name, date of birth, and place ofbirth, and who satisfies all otherrequirements 

of this chapter for obtaining a license or permit, shall be eligible to obtain an 

VTLEG#289716v.l 
206 

AS PASSED BY SENATE 

2013 

S.38 

Page 2 of7 

operator's privilege card. a junior operator's privilege card, or a learner's 

privilege card. 

(2) The Commissioner shall reguire applicants under this subsection to 

furnish a document or a combination of documents that reliably proves the 

applicant's name, date of birth, and place of birth. The Commissioner may 

prescribe the documents or combination of documents that meets these criteria. 

However, the Commissioner shall accept a combination oftwo or more of the 

following documents to establish the name, date of birth, and place ofbilth of 

an applicant: 

(A) a valid foreign passport, with or without a U.S. Customs and 

Border Protection entry form or stamp; 

(B) a valid consular identification document issued by the 

government of Mexico or of Guatemala or by any other government with 

comparable security standards and protocols, as determined by the 

Commissioner; 

(C) a certified record of the applicant's birth. marriage, adoption, or 

divorce. including a translation if necessary. 

(3) The Commissioner shall require applicants under this subsection to 

furnish a document or a combination of documents that reliably proves the 

applicant's Vermont residence. The Commissioner may prescribe the 

documents or combination of documents that meets these criteria. However, 

VTLEG#2897l6 v.l 
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AS PASSED BY SENATE 

2013 

8.38 

Page 3 of7 

the Commissioner shall accept the following combinations of documents as 

proof of Vennont residence: 

(A)(i) two pieces of mail received by the applicant within the prior 30 

days with the applicant's current name and residential Vermont address; and 

(ii) at least one of the documents specified in subdivision (B) of 

tlils subdivision (3); or 

(B) two of the following which show name and residential Ve1mont 

address: 

(i) a vehicle title or registration; 

(ii) a document issued by a financial institution, such as a bank 

statement; 

(iii) a document issued by an insurance company or agent, such as 

an insurance card, binder, or bill; 

(iv) a document issued by an educational institution, such as a 

transcript, report card, or enrollment confirmation; 

(v) federal tax documents, such as W-2 or 1099 forms; 

(vi) state tax documents, such as an IN-111; and 

(vii) medical health records, receipts, or bills. 

(f) Persons able to establish lawful presence in the United States but who 

otherwise fail to comply with the requirements of the REAL ID Act of2005, 

Pub. L. No. I 09-13, §§ 201-202, shall be eligible for an operator's privilege 

VT LEG #289716 v.l 
208 

AS PASSED BY SENATE 

2013 

8.38 

Page 4 of7 

card, a junior operator's privilege card, or a learner's privilege card, provided 

the applicant furnishes reliable proof of Vermont residence and of name, date 

of birth, and place of birth, and satisfies all other requirements ofthis chapter 

for obtaining a license or permit. The Commissioner shall require applicants 

under this subsection to furnish a document or a combination of documents 

that reliably proves the applicant's Vermont residence and his or her name, 

date of birth, and place of birth. 

(g) The Commissioner may adopt policies or rules related to the issuance of 

privilege cards under this section that balance accessibility with mechanisms to 

prevent fraud. The Commissioner shall consider adopting the appointment 

system procedures used in other states to prevent and deter fraud with regard to 

proof ofresideney. 

(h) A privilege card issued under this section shall: 

(1) on its face bear the phrase "privilege card" and text indicating that it 

is not valid for federal identification or official purposes; and 

(2) expire at midnight on the eve of the second birthday of the applicant 

following the date of issuance. 

(i) Every applicant for or holder of a privilege card under this section shall 

be subject to all of the provisions of this title that apply to applicants and 

holders of operator's licenses, junior operator's licenses. and learner permits, 

except where the context clearly requires otherwise. 

VTLEG#289716 v.l 
209 

AS PASSED BY SENATE 

2013 

Sec. 2. 23 V.S.A. § 115 is amended to read: 

§ 115. NONDRJVER IDENTIFICATION CARDS 

S.38 

Page 5 of7 

(a) Any Vermont resident may make application to the commissioner 

Commissioner and be issued an identification card which is attested by the 

commissioner Commissioner as to true name, correct age, and any other 

identifYing data as the commissioner Commissioner may require which shall 

include, in the case of minor applicants, the written consent of the applicant's 

parent, guardian, or other person standing in loco parentis. Every application 

for an identification card shall be signed by the applicant and shall contain 

such evidence of age and identity as the commissioner Commissioner may 

require, consistent with subsection (l) of this section. The commissioner 

Commissioner shall require payment of a fee of $20.00 at the time application 

for an identification card is made. 

(b) B¥efy Except as provided in subsection Q) of this section, every 

identification card shall expire, unless earlier canceled, on the fourth birthday 

of the applicant following the date of original issue, and may be renewed every 

four years upon payment of a $20.00 fee. At least 30 days before an 

identification card will expire, the commissioner Commissioner shall mail first 

class to the cardholder an application to renew the identification card. 

* * * 

VfLEG#289716v.l 
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AS PASSED BY SENATE 

2013 

8.38 

Page 6 of7 

(I)( I) The Commissioner shall issue identification cards to Vermont 

residents who are not U.S. citizens but are able to establish lawful presence in 

the United States if an applicant follows the procedures and fumishes 

documents as required under subsection 603(d) of this title and any policies or 

rules adopted thereunder, and otherwise satisfies the requirements of this 

section. The identification cards shall expire consistent with subsection 603(d) 

of this title. 

{2) The Commissioner shall issue non-REAL ID compliant 

identification cards to Vermont residents unable to establish lawful presence in 

the United States if an applicant follows the procedures and furnishes 

docwnents as required under subsection 603(e) of this title and any policies or 

rules adopted thereunder, and otherwise satisfies the requirements of this 

section. 

(3) The Commissioner shall issue non-REAL ID compliant 

identification cards to Vermont residents able to establish lawful presence in 

the United States but who otherwise fail to comply with the requirements of 

the REAL ID Act of2005, Pub. L. No. 109-13, §§ 201-202, ifthe applicant 

follows the procedures and furnishes documents as required under subsection 

603(f) ofthis title and any policies or rules adopted thereunder, and otherwise 

satisfies the requirements of this section. 

VT LEG #2897!6 v.l 
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AS PASSED BY SENATE 

2013 

S.38 

Page 7 of7 

(4) A non-REAL ID compliant identification card issued under 

subdivision (2) or (3) of this subsection shall: 

(A) bear on its face text indicating that it is not valid for federal 

identification or official pumoses; and 

@) expire at midnight on the eve ofthe second birthday of the 

applicant following the date of issuance. 

Sec. 3. EFFECTIVE DATE 

This act shall take effect on January 1, 2014. 

VfLEG#289716v.l 
212 

U.S. Department of Labor Employment and Training Administration 

Office of Foreign Labor Certification 

Chicago National Processing Center 

September 08, 2010 

STONEWOOD FARM, INC 

105 GRISWOLD LANE 

ORWELL, VT 05760 

Dear Sir/Madam: 

536 South Clark Street 

9th Floor 

Chicago, IL 60605 

NOTICE OF DEFICIENCY 

No. ofJob Openings: 18 

Job Title: MEAT, POULTRY AND 

FISH CUTTERS AND 

TRIMMERS 

Period ofEmployment: 10/11/2010-12/04/2010 

Case Number: C-10238-24951 

Date of Receipt by DOL: 08/26/2010 

RE: STONEWOOD FARM, INC 

Pursuantto 20 Code of Federal Regulations (CFR) 655.141, your application for temporary 

employment certification and/or job order fails to meet the criteria for acceptance. The specific 

reason(s) why your application cannot be accepted for consideration, with citation(s) to the 

relevant regulatory standards, appears on the enclosed attachment. Pursuant to the regulations at 

20 CFR 655.142, you may submit a modified application within five (5) business days from the 

date you receive this letter. · 

The modification(s) required for consideration of your application and/or job order also appear 

on the attachment. Please include your case number on any correspondence sent to the National 

Processing Center; failure to do so may result in a delay in processing your application. 

If the modifications in the application are received within five (5) business days from the date 

you receive this deficiency letter and in the marmer specified by the Certifying Officer, the 

Certifying Officer will make a determination on whether to grant or deny your application no 

later than thirty (30) calendar days before the date of need. 

If you file a modified application, and it does not address all the modifications listed in this 

notice, we will not be able to accept it for consideration. If you file a modified application, and it 

does address all the modifications listed in this notice, but it is not received in the office by the 

due date for modification, the final determination will be postponed one calendar day for each 

day that passes beyond the 5-business day period allowed under 655.14l(b) up to a maximum of 

five (5) days. 20 CFR 655.142(a). The application will be deemed abandoned if the employer 
213 

does not submit a modified application within twelve (12) calendar da.ys after the Notice of 

Deficiency was issued. 

As provided by the regulations at 20 CFR 655.142(c), you have the opportunity to request an 

expedited administrative review of the Notice of Deficiency or a de novo hearing of the Notice 

ofDeficiency before an Administrative Law Judge. To obtain this review or de novo hearing, 

you must file within five (5) business days from the date of receipt ofthis notice by facsimile or 

other means normally assuring next day delivery, a written request for such a review or hearing 

to the Chief Administrative Law Judge, U.S. Department of Labor, 800 K Street NW, Suite 400-

N, Washington, DC 20001-8002, with a simultaneous copy to this office. You may submit any 

legal arguments that you believe will rebut the basis of the Certifying Officers actions. 

The Certifying Officers detem1ination on whether to grant or deny the application will be made 

no later than 30 calendar days before the date of need, provided that the employer submits the 

requested modification to the application within five (5) business days and does not request an 

expedited review or de novo administrative hearing. 

Sincerely, 

William L. Carlson 

Certifying Officer 

Enclosure 

CC: VERMONT DEPARTMENT OF EMPLOYMENT AND TRAINING 
214 

ENCLOSURE FOR UNACCEPTABLE APPLICATIONS f;. X h •b ,-} _) 

1. TemporaryNeed 20 CFR 655.103(d) 

Deficiency: 

DOL regulations at 20 CFR 655.103(d) requires that H-2Ajob opportunities are on a seasonal or 

other temporary basis. Poultry processing is presumed to occur on a year-round basis. 

Documentation to establish and support the employers temporary need for workers was not 

provided as part of this H-2A application. 

Modification Required: 

The employer must submit a detailed, written explanation documenting the temporary need for 

(18) H-2A Meat, Poultry, and Fish Cutters and Trimmers workers for only 55 days out of the 

year. The employer must explain who processes the poultry during the days in which temporary 

workers are not needed. This written explanation must be based upon supporting evidence and 

submitted to the Chicago National Processing Center (CNPC) on letterhead stationary and signed 

by the employer. 

Supporting evidence in the form of summarized payroll reports is required to substantiate the 

employers temporary need for the H-2A. workers in the case. The employer is required to submit 

summarized payroll reports for a minimum of one (1) previous calendar year (2009) Meat, 

Poultry, and Fish Cutters and Trinm1ers. These payroll reports must be a summarization of the 

employers individual payroll records by month, and, at a minimum, identify the total number of 

workers, total hours worked, and total earni1~gs received separately for permanent and 

temporary employment in the designated occupation. 

The su:rmnarized payroll reports should be signed by the employer with the following statement 

attesting that the infonnation was compiled from the employers accounting records or system: I 

certify that the information contained on this monthly payroll report is accurate and based upon 

the individual payroll records maintained by Stonewood Faun, Inc. for Calendar Year 2009. 

If original documents have been returned, please make sure the amendments are made on 

the original documents by crossing out the amended item and initialing and dating each 

amendment. An application in which "white out" is used to make corrections cannot be 

accepted for processing. You must return all original documents sent with thiJ modification 

letter. You must also provide a copy of any amendments to your respective State 

Workforce Agency. 
215 

Stonewood Farm 

9114/2010 

William L. Carlson, Certifying Officer 

U.S. Dept. of Labor 

Employment and Training Adm. 

Office of Foreign Labor Certification 

Chicago National Processing Center 

536 South Clark St., glh Floor 

Chicago, ll 60605 

Re: C-10238-24951 

Dear Sir/Madam: 

Per 20 CFR 655.103(d) 

105 Griswold Lane 

Orwell, VT 05760 

802-948-2277 

Ex.J, ~b.t JPlease find enclosed the requested Payroll Summarization of the previous (2009) calendar year. All payroll 

information is maintained by Stonewood Farm, Inc. I, Peter Stone manage the payroll operations. I certify 

that the information contained on these monthly payroll reports is accurate and bases upon the individual 

payroll records maintained by Stonewood Farm, Inc. for the Calendar Year 2009. 

Stonewood Farm Inc. raises turkeys on a seasonal basis. Turkeys arrive mid May each year. Slaughter 

operations are from October 11 to December 3, 2010. This year we will slaughter 24,000 turkeys for 

Thanksgiving fiom October 11lh through November 25, 2010. Then we will slaughter the remaining 3000 

from November 29 to December 3, 2010 for Christmas. 

We sell our turkeys fresh; as a result we only have a small window of time to slaughter. It takes 24 

employees to run the slaughter operation. We have 4 to 5 Full-Time employees' year around. Therefore, we 

need temporary help to assist in the slaughtering operations at Stonewood Farm, Inc. 

We have always employed locals; however it is tough to find enough local help for the slaughtering process. 

We need the 18 temporary employees to fill the remaining open positions. We do employ 4 -5 local 

employees' year around doing activities non-related to slaughtering. We do not slaughter year around. 

Thank you in advance to your prompt attention to this matter. Please don't hesitate to contact me with any 

questions. 

Sincerely 

Peter Stone, President 
Stonewood Farm 2009 Payroll Summarization by Month 

January 

Full-time 

Hours 586.23 

Earnings 8027.01 

#of Workers 5 

Part-time 

Hours 349.02 

EarninQs 3481.25 

#of Workers 4 

105 Griswold Lane 

Orwell, Vermont 05760 

February March 

578.95 601.96 

7954.49 8195.6 

5 5 

387.68 416.92 

3835.49 4193.75 

4 4 

Aoril 

808.35 

10358.76 

5 

360.11 

3614.58 

3 

Temporary Related to Slaughtering 

Hours I I I I 

Earninqs I I I I 

#of Workers I I I 

Certified Correct ---------------

Peter Stone, President 

Mav June Julv AUQUSt September October 

652.35 752.73 856.11 724.04 624.28 819.76 

8680.81 9739.16 10879.78 9464.87 7479.65 11419.1 

5 5 5 5 5 

85.49 8.4 0 0 0 175.02 

843.8 '81.48 0 0 0 1727.42 

3 1 0 0 0 3 

1215.16 

11701.95 

17 

Date-------

November December T

855.88 556.95 

11112.79 8035.27 

5 5 

731.46 600.82 

7393.69 6222.41 

5 6 

3978.05 318.1 

38308.69 3063.3 

17 10 
217 

wquin!f{ utuh~t· H !;.S.C. 1 \ill!, Ztl CFR 

pntl 5Ul. t'll' this subpnrt. 

{c) 1)(!(iJ1ilion nf ogriclll1urnl !ohnrllr 

!wrvit.'1..'."· l~m tlw pnrpmms nf !his 

S"l,lbtmrl. agrlt:ullumllnhor or sm·vic:ns, 

j.HiniHill!l It'! ll tJ . .S.C. 

'1HH(u)(l5)(ll)(ii)(n), is dofincd ns: 

D.gricnltural lnbor .:IS dcflrwd 1md Hpp1ir:d in~tr:c:. :n21(g) of the buct:n.D.l 

Rnv~rmr: Cad(l of 10!16 at 26 U,S.C. 

312l(g); o.gricultttm as dr)llnod ~n~ 

applim! in ~llt:. !!(1) of lho fuir I.abOt' 

.Stuwlurds Act of 193.0 (FU::>A) Df 29 

lLS.C. 2D3(D: tbc prossing of apples for 

cid~r au o. farm: or leggin~ mnpll.lYlnl;l!l1-

Atl. 9ccupation incJm:lcd in 11ithnr 

stl'lfutmy detiuHion i~ ilgri1;ulturnllabot 

nr fitirvict-:s. uutwithslilndin.g the 

Hxduiiloo t)f lhilt occupation fi•om the other st~hltory dr.f1nilinn. Fnr 

infmmntiomd purposes. thl} iit11lutory 

provl$5.Dl1S ,'l.re lls!F.d helm\'. 

(:l )(i] Agrit:ulluml luhor for the pmpo.-;1: t')f puragn:.1ph {c) of this section 

u1oa.as all ~cYvice performed: 

(A} On a farm, in the employ nf nuy 

pcrSOl1. in conn,ction with r.:ulfivnling 

tbs tmil. otin c:onucction with misinr. tlr 

harvesting tmy agricultural or horticulturn! r:nmmndity. induding thl) 

r::~isinn, !!lu'lnring. fll1:diHg. cadngTot, 

lraiuiue, and IUil1lli.&Cn)rmt of livP.!Ifnr:k, 

bf!A:<, puullry, a1'1d fllr bCLJ.l'ing ~nim:;ls 

ilntl wildlife; 

(D) ln. tho employ of thn m.vmlr ur 

tf!nsJll or other operator of~~ f1tr1H. i11 

t.OlHUlCCLiOll with tht~ opl'!raiinn, 

rnal'J.agcmcnt, con~crvHiinn. 

imprOvement, nr nmiulcnD.ncc of such 

form 11nd iln tools and oquiptnr.!llt, min 

Sollvngiop. timhHr ur dca.fing land C'lf bn1sh itnd nth{:)r debris lcf't by a 

h\1rric:am1. if ili~ Jll.ajor p{lrt of ~\H:h 

servicH iii pc:rforruod Oil R f~rtn; 

[C:) In c:onncction wi~h th1.~ prMhH~tion 

or hnr\'H:iling uf illlY commo~ity dt:Cint::d 

~J;: au u~ricultur~l c:'.(lnltn{)(lity i1\ sactitn\ 

t5(g) oftb~ Agrkullurul !o-•1;rtketing Ad. 

as mncnrlP.d {12 U.S.C. 1141j), or in 

cormHdiou wil11 tlw. p,inning of t.:olton, 

m iu connection wilh the opcrr.tinn tlr 

maintenl'lnr.t~ of ilitdws, cnnt\b, 

rosc..-voirs, 1,1r wa\f:t\vays, not rJWHP.d M 

upnrotod for prol'il, ust~d exclusively fM 

:mpplying f\ncl.5torina wntcr fo:r fArming 

put'poses; 

(D) In th!:! !!IH!lloy oftbc- operr~lor r>f 

D. fD.rm in hHndlinfl. plantiqg, drying. 

p~cking, packilging, pron~~~ing. 

fn:t:~i:lg, gr"'dlng. slnrin.g, or dcliv~ring 

lo starag~ or tu market or !1.1 n ci'lt'i'h1r for 

transporlnlicHl to market, i11 ils 

uumanui~u:lurcd state, ~ny <=~griCLtlntr::.l_ 

or horHcultural commodily: but only il 

such upcwator prod\lt:Hd more th11n one· hMl r uf tho commodil y \1\"i.th r~srwr:l lu 

which stu:h l'iU:tvice is p~rfurmC'd': 

(E} In the e-mploy uf a gro\1p nf 

.. opcr;;JtC'Ir!':. tlf runns {odlfH thom il 

wDptltnti,·a orgauit:iltinn) in 1!Jn 

JWrfnrnwncn nf sr:n·i1:r: dr~s1:ri lmd ir1 

pan1grnph {1:)!'! J(ivj ur !J1is !·il:l:timl but 

nr~ly if suclt oporntnl'S !H'oducnd nil c1f 

thn t:Ol11TllfJt\ily wilh m"JWC! lo whid1 

such service is perfornwd. 1-'nr pnrpns1!s 

or thl:> j)l!ri-J.gr;1ph. iii!)' unill(:urpurfltfld 

gruup of oponHt1J'S slH1ll bo dccrnod n 

cooperative orguuiY.Riir,m if ttw numlmr 

of opnmlm!i 1:nmprising sut:lt group is 

mun: than 20 ill ally time dul'inR tlm calc1ndor vc.f\1' in which such ~urvicl! is 

p~.:rfumwd; 

(F) 'rl1C ptt)ViSiOJl!l of p~·a~raphl' 

[t:)('l}(iv) <'lll.d (c:)(l][v} of this scctiun 

skill r)t)\ h1~ dt·:r:mcd to he appllc:•bh! wilh rc$pcct to ~mrvic:n pmlilfmml in 

connoctir:m with con'lu\orr.i;~l canning or 

COrT\nl~m;i<l} fmBziug, 01' it'1 COI1IlGCtion 

with illly or.grit::ltltm<t! or b\lrli(~\ll\llr<tl 

commodity ili'!P.-r its dttlivnry tn a lcrmiJ~ul.mackl}t for di~t\'ilHilion fur 

com>ltmplit.lll; nr 

(C;) On a farm upoancd f~r fll"f.lf!t il' 

!>uch litlrvicc is llOt in tho cC'Iursn nf !Ia: 

Bmployo-t•"s u·adc or bm.il1l1!\.S nr is 

dom~stic s.crvict! in H pri\'llll: home of 

lhu employer. 

(ii}J\.s usod i.n this sm:!lun. lht': tonn 

foTm innludns slotk. daity. poultry,· fruit. fut'~boi11'i.ng: nn!mal, nnd !ruc:'k hrms, plsnl.Htinils,runch~s.nms{lt!r~s. 

rvng(!;;, grmmhuuscs o:r otl1cr similnr 

slruclUI'CS used ptimttrily !'or !hi: rni:;ing 

or ogricultur:JJ or hmlicullm'ill 

commodities., (lrul (Jrc:hard.~. 

(2) Agrir:ultuta. For purpose~ ur par<l!:;l'illlh (!:) of this ser:tinn, agriculturet 

~ncans farming iJ) nll !ts brancht1!i arHI among ollmr 1hings inclutle:i lhn t..:ulliv;olirm ;md til1agu ofthH snil, 

dairying. the produdiflJl, r.n'ttiv<lliun, 

growing, and horv1~S!iJ1g of ;:my agricltlturi'll ru· horticullurnl 

commuditir.-s (including commnriitias 

tll:finetf its n.gi'iculhmli nminmditics in '114Ij(g} of !ltlo ·12, tho rai~lng of livr;l.'>lm:k, htws, fur-hc~niug nnimuls, or 

pnuhry. ;:md any pr;:it~licr.s (indudlnt~ 

nny for~slry nr 'Iumb•Jring np1m:~tions} 

pcrforr11cd by-<" farnmr CH' 11n a f~rm r~.s 

<~n incidE.mt ln m· ln. canjunctkw with 

~ur:.h f.1rnring opcwtimu:., i11duding 

preparation fnr mtirb;t, dH.Iivi:J'Y to 

storag13 or ltl market or tu cnrril':ts for transporlnljnn to market, .Sw: snc, 29 

U.S.(' .. zo:~(f). us n~(!ndm1 (~cc. J(t) nt the FI.SA, as Cod.irmd). Under 12 U.S.C. 

·t·J41j(g} agricu}h.Jral cmnmoditie:- incl\Hh~. iit ruldltion to nlhur ~gricu It mal 

(:ommoditics, crude gum (oie!Jf.w;inj 

f1·am o living itM:. and the !'nl!\1Wing 

products t:~:> prcn~t:;:>scd 'l:ly 11l£~·orig!nD.l 

producBr of the crude gum (cJlcorc-!'irl) 

!rom which dcriv1.~d: gum spirits nf 

turp~ntine and gitm rn!'lin. ln addition as 

lh:fi1Wd in 7 tJ.S.C, U2 1 gum spirit:• of 

turptm!ial!lme>:~J1:'i spil·il:> 1)f turpmtlinc mado. from gum (oklQTP.Rin) tl·Otn o. !lvi1~g 

!n~n <ll!!lgum rosin HWHns t'tJSill 

l'owaitiiJ'lg ;lftitl' the: distillnlion Ill' gunt 

spi1'iLs oflut')H!lltinn. 

(:tl >\Jifllf! flti:Hsiu;; for r:idr:r. Thn pn:~sin:.; of i!pph:s l'nr c:idct' 011 a. farm, 

n:-~ !liE! l!:nn fM1n is dr.I'Jncd and applied itl st:t:. :ll:il(g) of the lntorn::~ll<cvomw 

Coden\ 20 t: . .s.C. :l12:! (gl nr ;1s >~pp1iud 

in Hla;. :J(r) nf the 1-'L,S/\. ilt 29 U.S.C. 

~o;;fn_ ptu·sumu to 29 CJ'R ptnt 71W. 

{·1) f,n!;t;ing nmplnymoui. Opomtions 

assm:iatod \vith fcllit18 nnd movlnr, trnnli 

:mrl\ngs frnm llm s:!ump lu the point of 

tletivt!ry, such i!Fi, h11t110! limited m. 

murk in:: danJ:m !n:ns nncl tl'Oes/logs to 

b~! 1:111 In lc;ngth, fdling, Hmbin"', 

bucking, debarking, chipplnp,, yardir1g, 

}o;:Jdlng, l1nloadinH. ;'\loring, :md 

tra!l!'pnr!iiiJ: Jnm:hil)t1S, equipment and 

pnrsmuu:llu. frum ;mel between logs~ing 

~i\1):/i, 

(d) nt!Jiuiliou (4 0 [;}mpol'Cl!j' or 

seasanuliwiure. Fur lim putprJsO.~ of 

thh; ~\lhpHrl, !!mpluyl1'tf:t1l Js of a 

SI!H.'IOWtlutJiurc whe:rn it is tied to 1.1 

r:nrtilin tim D. of yoar by 1m uy(nH or pmorn. suc.:h 3S u !(hor1 mmuHI !iJ'nwing 

r.yde m• u spcc:ific a~pr.!t:t of 11 ld11g1!r 

cycle-. :.md rncplirns Inhnt lovnls f.:tl' D.bovo 

lhusn ntH:n!ismy frlt ongoing openttitms. 

Emplo~mtmtls of ;J lt:mtJOfW'Y natUJ'l! wlwrn !bg t:Olployc-r's need to till Ibn 

posit inn with a tompor~ry workHr will, 

nxr:npt in cxtr<'lordinu,·y t:in:tuuMancos, 

last no lnngm !hau 1 year, 

Pl •fJin;; l'r()t:mlunJ!i 

§555.120 OfferedwagBr'd!O, 

(u) Tn comply wi!h i!s f1hligation 

under~ 655,1 7.2(1), m\ D!Tij1loYcr mu~t 

nffc1', o.dvNthm in its rc:c:fuitmcnt, nnd 

p<~y a wup.p tlwi is 1hn highest of thn A'I<;WH.. 11m f)1'Cvailil1P, hnurly Wll/3t'' t"Jl' 

pinta: rntc, the a~r1md-uprm collc-r.tiva 

b:uguinit1g wage, or llw Fl!rt(;\'fll m· Staltl 

minimUl:\ wo.;;c, excnpl whcl'o il spncini 

pmr.(:di.\1'(! l!t nppmvm1 Cot ntl oet~llflll!ion 

or ~JIIH:iJII: dass of ~grkullunll 

P.T!(~iW';};~f-~~;~uvoJiling hourly wu~~' r.Ho 

nr pim;Ct'iHC is ;Jrljuslud during ll work. 

,~nHlt'nct, 11nd i!' hight~•· than the hip,bm>l 

nf the At.:WR, t1w prcvailinR wag,r:. the 

ar;rf:nd-upon coH1wli'llo hnrgJininp, w<Jge, 

nr tho Fedor1:d nr Slate mi1.1imum wagf~. 

in cffo(!! at lim lime thG work i:> 

pcdormf<rl, llm Callploy{!r must pLl.y 11Hll 

higher (lr~:vaili11g Wtt&!! .nr picGet rute, upnn uutJ~U to tht! mnploycr by the tJcpllrtmnuL 

(t-:} The OVT.r: Adminh:trator will 

puhli.'>h, at ltm:ol onc:a in rJtlch t~alondur · vcar, on" dalu to be rloltmuined by tht~ 

(Jl'LC Administrator, !lm Al~WRs. for 

cr.u:h Slott: usn tm!ic;c in the Fmlt~ral 

R1!gister, 

§555.121 Job otdcrs. 

[o.)/\nw c4 iJJUmrff.~d r:mploymrml.. 
218 

U.S. Department of 

Labor 

February 26, 2013 

AL YSON EASTMAN 

375 MT. INDEPENDENCE 

ROAD 

ORWELL, VT 05760 

Employment and Training 

Administration 

Office of Foreign Labor Certification 

Chicago National Processing Center 

11 West Quincy Court 

Chicago, IL 60604 

NOTICE OF DEFICIENCY 

No. of Job Openings: 2 

Job Title: Farm Workers and 

Laborers Crops 

Period of Employment: 04/08/2013 to 

12/12/2013 

Case Number: H-300-13051-970070 

Date of Receipt by 02/20/2013 

DOL: 

RE: PUTNAM MANAGEMENT PROPERTIES, LLC DBA BILLY BOB'S 

ORCHARD 

Dear Sir/Madam: 

In accordance with Departmental regulations at 20 Code of Federal Regulations 

(CFR) § 655.141, your application for temporary employment certification and/or 

job order fails to meet the criteria for acceptance. The specific reasons why your 

application cannot be accepted for consideration, with citations to the relevant 

regulatory standards, appears on the enclosed attachment. In accordance with 

Departmental regulations at 20 CFR § 655.142, you may submit a modified 

application within five business days from the date you receive this letter. 

The modifications required for consideration of your application and/or job order 

also appear on the attachment. Please include your case number on any 

correspondence sent to the National Processing Center; failure to do so may 

result in a delay in processing your application. 

If the modifications in the application are received within 5 business days from 

the date you receive this deficiency letter and in the manner specified by the 

Certifying Officer, the Certifying Officer will make a determination on whether to 

grant or deny your application no later than 30 calendar days before the date of 

need. 
219 

If you file a modified application, and it does not address all the modifications 

listed in this notice, we will not be able to accept it for consideration. If you file a 

modified application, and it does address all the modifications listed in this notice, 

but it is not received in the office by the due date for modification, the final 

determination will be postponed one calendar day for each day that passes 

beyond the five business day period allowed under 20 CFR § 655.141 (b) up to a 

maximum of five days. Under Departmental regulations at 20 CFR § 655.142(a}, 

the application will be deemed abandoned if the employer does not submit a 

modified application within 12 calendar days after the Notice of Deficiency was 

issued. 

As provided by the Departmental regulations at 20 CFR § 655.142(c}, you have 

the opportunity to request an expedited administrative review of the Notice of 

Deficiency or a de novo hearing of the Notice of Deficiency before an 

Administrative Law Judge. To obtain this review or de novo hearing, you must 

file within five business days from the date of receipt of this notice by facsimile or 

other means normally assuring next day delivery, a written request for such a 

review or hearing to the Chief Administrative Law Judge, U.S. Department of 

Labor, 800 K Street NW, Suite 400-N, Washington, DC 20001-8002, with a 

simultaneous copy to this office. You may submit any legal arguments that you 

believe will rebut the basis of the Certifying Officer's actions. 

The OFLC Certifying Officer's determination on whether to grant or deny the 

application will be made no later than 30 calendar days before the date of need, 

provided that the employer submits the requested modification to the application 

within 5 business days and does not request an expedited review or de novo 

administrative hearing. 

In order to assist with the timely processing of the application, you are 

encouraged to submit all required documentation no later than 3:00pm 

Central Time. 

Sincerely, 

H-2A Certifying Officer 

CC: 

NEW YORK STATE DEPT OF LABOR 

LAKE HOME BUSINESS SERVICES, INC. 

Enclosure 
220 

ENCLOSURE FOR UNACCEPTABLE APPLICATIONS 

1. Temporary Need 20 CFR 655.103(d) 

Deficiency: 

In accordance with Departmental regulations at 20 CFR sec. 655.1 03(d), the job 

opportunity must be on a seasonal or other temporary basis. Seasonal or 

temporary is defined as "employment [that] is tied to a certain time of year by an 

event or pattern, such as a short annual growing cycle or a specific aspect of a 

longer cycle, and requires labor levels far above those necessary for ongoing 

operations. Employment is of a temporary nature where the employer's need to 

fill the position with a temporary worker will, except in extraordinary 

circumstances, last no longer than 1 year." 

The job opportunity, described on ETA Form 9142, Section B Items 5 and 6 

indicates the employer's dates of need are from April 8, 2013 through December 

12, 2013. However, the employer's previous certification was for September 6, 

2011 through December 18, 2011 (our records indicate the employer did not file 

an H-2A application for 2012). 

Beginning Ending 

Case Number Employer Name Status Date Of Date Of 

Need Need 

Certified 

C-08192-14213 PUTNAM MANAGEMENT PROPERTIES -Full 8/28/2008 10131/2008 

Certified 

C-08192-14217 PUTNAM MANAGEMENT PROPERTIES -Full 8/28/2008 12/12/2008 

Certified 

C-09176-20059 PUTNAM MANAGEMENT PROPERTIES -Full 8/28/2009 10/31/2009 

Certnled 

C-09176-20065 PUTNAM MANAGEMENT PROPERTIES -Full 8/28/2009 1211212009 

PUTNAM MANAGEMENT PROPERTIES, Certffied 

C-10189-24639 LLC -Full 8/25/2010 11/20/2010 

PUTNAM MANAGEMENT PROPERTIES, Certified 

C-11201-29825 LLC -Full 9/6/2011 12118/2011 

H-300-13051-

970070 PUTNAM MANAGEMENT PROPERTIES 4/8/2013 12/12/2013 

Based on the current employer's requested dates of need and its previously 

established dates of need, it is unclear how this job opportunity is temporary or 

seasonal in nature. 

Modification Required: 

The employer must explain why its job opportunity is seasonal or temporary. 

This explanation must state in detail why its dates of need have significantly 
221 

changed from its established season of September through December to its 

current request of April through December. 

Because the employer failed to establish a temporary need as required by 20 

CFR sec. 655.1 03(d), it is now required to provide supporting evidence that a 

temporary need exists. The employer must submit a written explanation which 

documents the temporary need for H-2A workers. 

Supporting evidence in the form of summarized payroll reports is required to 

substantiate the employer's temporary need for the H-2A worker(s) in the case. 

The employer is required to submit summarized payroll reports for a minimum of 

two previous calendar years (2011 and 2012) for Farm Workers and Laborers, 

Crop. These payroll reports must be a summary of the employers individual 

payroll records by month, and, at a minimum, identify the total number of 

workers, total hours worked, and total earnings received separately for 

permanent and temporary employment in the designated occupation. 

The summarized payroll reports must be signed by the employer with the 

following statement attesting that the information was compiled from the 

employer's accounting records or system: I certify that the information contained 

on this monthly payroll report is accurate and based upon the individual payroll 

records maintained by Putnam Management Properties for Calendar Year 2011 

and 2012. 

2. Notice of Deficiency 20 CFR 655.141(a) 

Deficiency: 

In accordance with Departmental regulations at 20 CFR sec. 655.141 (a), "[i]f the 

CO determines the Application for Temporary Employment Certification or job 

order are incomplete, contain errors, or inaccuracies, or do not meet the 

requirements set forth in this subpart, the CO will notify the employer within 7 

calendar days of the CO's receipt of the Application for Temporary Employment 

Certification." In Item 2 of the ETA Form 790, the employer attests that the 

worksite is owned and operated by the employer. However, the employer did not 

include this attestation in the ETA Form 9142. 

Modification Required: 

The Chicago NPC must have the employer's written permission to add the 

attestation above to the ETA Form 9142. 
222 

If original documents have been returned, please make sure the 

amendments are made on the original documents by crossing out the 

amended item and initialing and dating each amendment. An application in 

which "white out" is used to make corrections cannot be accepted for 

processing. You must return all original documents sent with this 

modification letter. You must also provide a copy of any amendments to 

your respective State Workforce Agency. 
223 

CxJ,·,b'.+ d.-

Putnam Management Properties, LLC 

Dba Billy Bob's Orchard 

March 1'', 2013 

U.S. Department of Labor 

Office of Foreign Labor Ce1tification 

11 West Quincy Court 

Chicago, Illinois 60604-2105 

17771 State Route 22 

PO Box 105 

Putnam Station, New York 12861 

RE: Response to Notice ofDeficiency H-300-13051-970070 

To Whom It May Concem: 

Putnam Management, LLC's Job order H-3 00-13051-970070 is for (2) H-2A fann worlcers for the period of 

time 4/8!2013 -12!12!2013 to perfonn orchard work Tasks outlined in this job order are "to perform orchard 

work, harvest apples and specifically the ability to trim, prune and traio apple trees in the spring." Putnam 

Management, LLC historically begins its pruning in April to early May recommended by the Cornell 

Cooperative Extension. (*)See quote below. I have also included detail from the Cornell Extension outlining 

best practices of pruning orchards, which Putnam Management, LLC uses as its baseline manual. 

(*) When to Przme 

Jjyoulucve a small orchard, delay prulllng ttutil it's nearly spl'ing. Allow for rain ami badweafller, bnt plan to 

bejiuislreclprtmlug by JYJay 1 or in lime to beg/It spra)'ing. In many larger orchards. the pruning begins soon 

after harvest and continues through to spring. Old trees are pruned first nnd young trees are left until March and ApriL 

2012 was a difficult year for our orchard, Mother Nature caused severe crop loss for our fann. I've enclosed a 

copy of the check stub from Rural Community Crop Insurance Services for the crop insurance received, The 

buds were damaged by frost in late winter on the lower two thirds of each tree and the buds that escaped the 

frost were hit with hail in late spring. Thus the reason our orchard did not file a 2012 job order for any seasonal 

workers. 

However, the reason why the date of need has changed significantly with those of the past is because of the 

damage iu 2012 and the US Domestic workers that were going to pnme are both out of work due to medical 

reasons, The orchard is in need of workers to prune, clean up the orchard floor and prep for harvest of 2013, 

Putnam Management, LLC anticipates that due to the inability to find local help, as years in the past to harvest 

apples, that another 2013 job order will be filed for harvest workers consistent with the date of needs in the past 

if the crop matmes to its fullest potential. I anticipate that the domestic workers cun·ently out will retum to 

work once released by their doctors, 

Please find enclosed an Employee Wage Summary and Payroll Register (Summruy) report requested for 2011 

and 2012. This particular job order sta11s earlier tl1an those in the past because of pruning and cleaning up the 

orchard floor and prepping for a 2013 harvest. Please note early Februa1y thru the mid to end of April there is 

no orchard payroll in 20 II and last year the payroll was minimal due to the crop loss. 

Please don't hesitate to ask should you need anything further, 

'~&f BillBlood 1 
224 

Cooperative Extension 

of Chemung County 

Human Resources Center 

425 Pennsylvania Avenue 

Elmira, NY 14904-1766 

Tel: 607-734-4453 

Fax: 607-734-7740 

vvww.cce.come:ll.e:du/ chemung 

Pruning Apple Trees 

The "experts" generally agree to certain principles 

in the pruning of fruit trees. These principles 

include early training, selecting scaffold limbs with 

wide (60-90°) angle crotches and elimination of 

those with narrow crotches, thinning crowding 

branches and broken limbs, and heading the tree at a 

height desirable for economical spraying and 

harvesting. 

Training apple trees. The training and 

selection of scaffold branches during the first few 

years of growth will influence the strength and life 

ofyourtree. There are several systems of training 

standard apple tree varieties, but the modifiedleader system is best adapted to local conditions. 

This system is one that allows one leader or main 

limb to develop vertically for the first 5 to 8 years 

until strong, desirable scaffolds have developed 

laterally. Once the scaffolds have developed, the 

central leader is headed back to about 8 feet to a 

desirable, wide-angled limb. 

This limb should be on the windward side of the 

tree, if possible, as a means of maintaining a good 

shape. The lowest scaffold branches should also be 

on the windward side. During the first few years, 

keep the leader larger in diameter than the scaffold 

limbs. This will help maintain strong crotches and 

discourage the scaffolds from becoming the leader. 

Occasionally snip back the tip of the scaffold 

branches a foot or more to keep their height below 

the leader. Later, after you've harvested a crop or 

two, the limbs will bend enough to do away with 

this operation. 

Delayed heading. You may not wish to 

follow standard procedures of pruning and training 

young apple trees for the first two or three years. 

Delayed heading, for instance, is a practice that is 

not universal but is successfully used by some 

orchardists. Delayed heading, the practice of 

pruning back the top of the tree to a strong bud 

which will become the central leader, starts when 

you plant the tree. This means cutting the whip 

back only a few inches, not to the usual desired 

height. The buds below the cut grow and lateral or 

scaffold limbs start to develop. 

The mature tree will have a central leader modified 

at a desirable height (usually 8 feet), and scaffold limbs 

spaced up the leader 8to 12 inches apart growing from 

various sides of the leoder. Water sprouts and side 

branches are always fOund in vigorous orchards. 

Building Strong and Vibrant New York Commwlities 

Cornell Cooperative Extension provides equal program and employment opporhmities. 
225 

Pruning Apple Trees 

Scaffold branches near your cut develop sharp 

narrow-angled crotches. Limbs several inches 

lower, however, develop strong wide-angled 

crotches. After a month or two when the top shoots 

are 4- to 6-inches long, trim back the central leader 

to a shoot at the desired height. This point will be 

below the shoots with the narrow-angled crotches. 

The remaining top shoot will become the new 

leader for future growth. 

You may fmd that bud stimulation or suppression 

will help develop good tree structure. Stimulation 

in this sense means selecting buds in a desirable 

location on the tree and cutting though the bark and 

cambium just above the bud. Do this in May or 

June during the first two years. 

Suppression of undesirable shoots and buds may be 

accomplished by pinching back the growing point. 

You'll probably have to do this twice a year-{)nce 

in June and again in July-{)ver a two-year period to 

permit scaffold branch development. 

Scaffold limbs. Select scaffolds that originate 

on different sides of the main leader, with the 

lowest limb on the windward side and at least 18 

inches from the ground. Be careful that permanent 

scaffold limbs are no closer together than 10 to 12 

inches at their base because each scaffold will 

develop side branches. Keep the side branches that 

have wide angles; thin out those that tend to crowd 

toward the trunk or other permanent scaffolds. 

Usually there are four permanent scaffold limbs 

originating from the main leader, but there may be 

as many as eight depending on the height of the 

leader. 

Strong, wide-angle crotches. The limbs 

selected for scaffolds should form a wide angle (60-

900) with the main leader and be smaller in 

diameter. If you fmd only narrow-angled crotches 

on the young trees, remove them all so new limbs 

will develop from the leader. Delay in taking this 

step will cause you a great deal of trouble in 

shaping and training the tree in future years. 

Crowding branches. Do not remove 

branches on young trees unless they interfere with 

desirable growth of the permanent scaffolds. More 

specifically, remove only those branches which are 

shading or rubbing the permanent branches, or are 

discouraging growth of new ones in desired 

locations. By leaving as much leaf surface as 

possible on the young tree, you will develop a larger 

tree in a shorter period oftirae. 

Older trees already have more or less permanent 

shape and pruning of branches becomes a process of 

thinning. Trim to take out weak, slender unfruitful 

wood; to remove limbs that rub others; and to open 

up the tree for insect and disease control. Occasionally you may wish to leave a water sprout for 

bracing or renewal purposes. Otherwise, remove 

the water sprouts. They serve as a feeding area for 

insects and do not contribute to fruit production. 

Crowded branches that tend to be growing down 

should be removed, not those that grow upward. 

The weight of the fruit will bring the branches 

down. Do not remove growing spurs. Food 

produced by leaves on spurs adds to the growth of 

the tree and fruit. 

Thin wood pruning. Thin wood pruning on 

fruiting trees is economical and profitable, resulting 

in the production of more apples of good quality. 

Thin wood is found on outer reaches of the tree and 

toward the center. A ladder is usually necessary to 

do a good job on the outside. 

Better growers will prune thin wood even though it 

takes longer than just the removal of crowded 

branches or bulk pruning. These trees often look 

over-pruned but close observation will show that 

few limbs are removed. 

2 
226 

L:!;:_l year nld wbip .(tne) jnat planted. 

Ri&hi-Whip "hea.ded hi&b at planting tUne. 

Whip in rnid to hte Jn.rlc w!Lh new abooU 6 to 8 inl:be.~ lonK. Note Lhe 1boota 11t 

the top devdoop n11rraw angled l:rolchea. 

Whip with delayed pruninK• Bud 8hmm by IUTow i8 in a desirable localion and 

~hould be stimulst£<1. ShOQt.ll n-earby should b~ auppro:~~ud by pln~hing; 

Other than training and shaping the young 

trees (as described under training), pruning 

should be limited to removal of limbs that 

are crowding and shading the permanent 

scaffolds, broken branches, or weak growth. 

Leave as much leaf area as you can to get 

fast growth and a large tree. 

Trees in this age group seem to grow very rapidly. You should 

have these trees already shaped with established scaffolds. 

Because the limbs tend to grow up rather than out, bend the 

limbs down before pruning to visualize how the limb will be 

once it begins to bear fruit. If you do this, you will find the 

removal of thin wood, broken or damaged branches, water 

sprouts, and an occasional branch is all the pruning needed. Too 

much pruning will delay fruiting of the tree. 

3 
227 

Pruning Apple Trees 

This is the age when trees are in prime fruiting. The limbs begin to bend from the weight of the fruit. Removal 

of thin wood, crowded branches, broken limbs, and water sprouts is a general practice. The big problem now is 

keeping the tree down to size without stimulating more upward growth. 

Each large limb removed on top seems to encourage a dozen others which grow twice as high. Moderate work 

in the top of the tree each year is necessary to keep growth down. Occasionally, you will want to leave a water 

sprout in the top to branch out and provide shade to the upper branches to prevent sun scald. The second year 

the water sprout can be cut back two or three feet and the side branches will bear fruit and keep growth down, 

not up. 

Neverremove all the branches from the top of the tree leaving the center of the tree exposed. 

Trees in this age group need to be pruned as much on the outside as on the inside. Removal of long, slender 

weak growth is important to maintain quality fruit. Leave strong branches and strong spurs, but remove 

crowded branches, thin wood, water sprouts, and broken limbs. Limbs which are touching the ground or will 

have fruit which is touching the ground should be removed. This often means you may have to remove one or 

more permanent scaffold limbs. The limbs above it will soon take its place. 

Cutting back crowding trees is too common a practice. The need for this is usually the result of planting too 

close and failure to remove trees. If trees can be removed to improve spacing, do not hesitate to do so. A 

vigorous, well-managed orchard may have a yield drop for a couple of years, but the yield will be back up the 

thhd year following removal. 

The limb on the left should be removed because it has a narrow 

angle (less than 60') crotch. The limb on the right has a desirable, 

wide-angled crotch (60-90') and should be lea as a penmanent 

scaffold limb. 

Equipment. The amount and type of pruning 

needed determines the tools you will take to the 

orchard. You can usually handle two hand tools 

such as a limb lopper and hand saw. On young 

trees, you'll need hand shears, handsaw, and 

pocket knife. With power pruning equipment in 

use, the saw and shears are left with the tractor 

and used only when necessary. A light ladder is 

important on thin wood pruning on older trees. 

Brush removal can be a problem. Brush rakes, 

similar to a buck rake but with shorter and 

stronger teeth, work well on thick brush but leave 

the spindle twigs. Orchardists are using large 

rotary mowers to chop up the brush and leave it 

for mulch. 

4 
228 

Pruning Apple Trees 

You can remove brush fairly rapidly. Large limbs, 2 inches and larger, are trimmed out with an axe and 

removed for stove wood. Smaller wood is either removed or left to be chopped up with a rotary mower. Small 

brush, if it doesn't interfere with the cutter bar on the conventional mowers, need not be removed. 

Most growers fork the brush in between the rows and push it out of the orchard with a modified brush rake. Or, 

you can pick it up by hand and put it on a large drag float or wagon. Another way is to use the large rotary 

mower and chop it up in the rows. 

This works well if you use the rotary for mowing the grass later in the season. I have undoubtedly left out other 

methods that work equally well, but the point to remember is that brush must be taken care of. 

Source: 

5/1994 

Rudolph A. Poray 

Extension Fruit Specialist 

Maine Extension Service 

Chemung 

Every effort bas been made to provide correct, complete, and up-to-date pest management information 

for New York State. Changes in pesticide regulations occur constantly, and human errors are still 

possible. These recommendations are not a substitute for pesticide labeling. Read the label before 

applying any pesticide. Trade names used herein are for convenience only. No endorsement of products 

is intended, nor is criticism of unnamed products implied. 

Cornell Cooperative Extension and its employees assume no liability for the effectiveness or results of any 

chemicals for pesticide usage. No endorsement of products is made or implied. 

**HOME REMEDIES: These remedies are not endorsements by Cornell University of any product or 

procedure. They are not recommendations for use either express or implied. Neither Cornell University, 

nor its employees or agents are responsible for any injury or damage to person or property arising from 

the use of this information. 

5 
Putnam Management Properties 

PO Box 105, 720 Couty Rt. 2 

Putnam Station, NY 12861 

2011 Payroll Summary 

I . . . .. I January I February I March I April I May I June I July I August I September I October I November I December I 

Fui/Time · · ·· 

1 certify that the information contained on this monthly payroll reportis accurate and based upon the individual payroll records maintained by Putnam Management Properties for the Calender Year 2011. 

;;:::(~?~ 

William E. Blood ~ 
Putnam Management Properties 

PO Box 1 05, 720 Couty Rt. 2 

Putnam Station, NY 12861 

Part Time 

2012 Payroll Summary 

I certify that the information contained on this monthly payroll reportis accurate and based upon the individual payroll records maintained by 

Putnam Management Properties for the Calender Year 2012. 

William 

d/~£/P'~ 

E: Blood 
231 

3501 Thurs.ton Avenue Anoka MN 55303 1060 

MPCI SUMMARY OF LOSS 

PUTNAM MANAGEMENT PROPERTY LLC 

PO BOX 105 

PUTNAM STATION NY 12861 

31-3008 CROP GROWERS LLP 

GREENWICH OFFICE 

ONE TECHNOLOGY PL STE 3 

HOMER NY 13077 

PHONE (800)234-7012 

CROP/ UNIT FSN ACRES PRAC TYP STG PLAN 

APPLE 0001·0001-BU 122 6.80 DD3 111 UH APH 

122 6.80 DD3 111 UH 

122 4.50 DD3 111 UH 

122 5.60 003 111 UH 

122 9.90 DDS 111 UH 

122 10.70 D03 111 UH 

122 15.30 003 111 UH 

BALANCE REFLECTS TRANSACTIONS POSTED AS OF 9/2D/2012 

Policv #: 2012 

brhibt ;;>.___ 

Check Number: 01726025 

DIRECT- CHECKS MAILED TO INS 

31-090-095625 Claim#: 1915796 

County: WASHINGTON 115 RY: 2012 

Page: 1 

Date: 9/20/12 TOTAL NET LOSS $156.600.00 PREVIOUS PAID AMOUNTS $.00 PREMIUM CREDIT $5,266.00 FC!C ADMIN FEE CREDIT $30.00 AMOUNT OF CHECK $151,304.00 

"'PREMIUM BALANCE DUE $.00 

GUARI ADJ GUAR PROD TO PRICE SHARE PAYABLE ACRE COUNT 

180.50 1227.00 .DO 10.90 1.000 13374 

180.50 1227.00 ,00 1·0.90 1.000 13374 

180,50 812.00 .OD 10.90 1.000 8851 

180.50 1011.00 .OD 10.90 1.000 11020 

180.50 1787,00 .DO i0.90 1.000 19478 

180.50 1931,00 .00 10.90 1.000 21048 

180.50 2762.00 .OD 10.90 1.000 30106 

' ' 

' 

" ' 
232 

3501 Thurtlon Avenue Anoka, MN 55303·\060 

Policy#: 2012 31-090-095625 

PUTNAM MANAGEMENT PROPERTY LLC 

PO BOX 105 

PUTNAM STATION NY 12861 

CROP/ UNJT FSN ACRES IPRACITYP PLAN 

122 16.60' 0031111 

122 3.40 0031111 

?rt-,;p,·ra--

MPCI SUMMARY OF LOSS oate: 9}20/i 2 

Page: 2 

I RY: 2012 Claim#: 1915796 

[ 31-3008 CROP GROWERS LLP I GREENWICH OFFICE ONE TECHNOLOGY PL STE 3 

HOMER NY 13077 

STG GUARJ ADJ GUAR PROD TO PRICE SHARE PAYABLE ACRE COUNT 

UH 180.50 2996.00 .00 10.90 1.000 32656 

UH 180.50 614.00 .00 10.90 1.000 6693 

' 

' 
233 

TESTIMONY FOR THE RECORD 

OF 

MEGAN SMITH 

COMMISSIONER 

VERMONT DEPARTMENT OF TOURISM & MARKETING 

ON 

THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND 

IMMIGRATION MODERNIZATION ACT, S. 744 

BEFORE THE 

SENATE JUDICIARY COMMITTEE ON 

APRIL 22, 2013 

INTRODUCTION 

On behalf of the U.S. and Vennont travel and tourism industry, I welcome the opportunity to 

provide testimony on how immigration refonn can spur economic growth by providing needed 

refonns and resources that will expand foreign travel to the U.S. We congratulate the "Gang of 

8" for including a number of significant provisions in the "Border Security, Economic 

Opportunity, and Immigration Modernization Act" and more broadly recognizing that facilitating 

legal travel must be an integral part of immigration reform. 

As our economy recovers from the Great Recession, travel is leading the way: 

In 2012 international visitors added nearly $130 billion to the U.S. Economy and 

generated more than $19 billion in federal, state and local tax revenue. 

One in eight Americans is employed by the travel industry, and international visitors 

support more than one million U.S. Jobs. 

• Every 33 additional overseas visitors i.e. international visitors other than those from 

Canada and Mexico- create one American job. 

• Overseas visitors to the US spend an average of nearly $4500 per visit. 

• Inbound international travel to the U.S. is America's number one service export. 

Vennont is very dependent on Tourism. Our percentage of jobs in the industry is twice the 

national average (38%) while our visitors spent $1.7 billion in 2011 generating $233 million in 
234 

tax revenue. The majority of our businesses arc small and family-owned, and Agritourism is 

growing at a very high rate. We are starting to sec a steady increase of international visitors and 

it is a market that we are focusing on much more with the support of Brand USA. While we 

benefit from being a weekend getaway for millions oftravelers, in order for our small businesses 

to flourish, we need to attract more international travelers who stay longer (on average 14 days) 

and spend more money. 

Understanding the economic importance of growing international visitation, we are fully 

supportive of the inclusion of the Jobs Originated through Launching Travel (JOLT) Act in the 

proposed immigration legislation. The JOLT Act, which garnered bipartisan support in both the 

Senate and House last Congress, will address some of the most pressing barriers facing inbound 

business and leisure travel to the U.S. JOLT, along with other key provisions in the legislation 

such as the EB-5 and H-2B proposals, will help the U.S. meet the nation's goal of attracting 100 

million visitors by 2021. 

In my testimony, I also want to highlight a provision in the bill which would have a negative 

impact on our nation's effort to continue attracting international visitors. 

VISA WAIVER PROGRAM 

According to an analysis by the U.S. Travel Association, one provision alone in the immigration 

proposal- expanding the Visa Waiver Program (VWP)- could, if extended to Argentina, Brazil, 

Bulgaria, Chile, Croatia, Israel, Panama, Poland, Romania and Uruguay, increase annual 

visitation by more than 600,000 people, add more than $7 billion to the U.S. economy, and 

support more than 40,000 additional American jobs. A recent sales mission to Brazil by 

Vermont's ski industry gave us insight into how much interest there is for our ski product in just 

this one country. 

The most economical and powerful step the U.S. government can take to improve the 

performance and competitiveness of the visa processing system while maintaining national 

security is to sign bilateral visa-free travel agreements with new countries as part of the VWP. 

The immigration proposal before the Senate today makes some necessary adjustment to the 

VWP in order to allow additional countries such as Poland, Brazil and Israel the opportunity to 

be eligible for the program, if they met substantial and important security and counter-terrorism 

criteria. 

In 20 II, visitors from VWP countries played a leading role in making travel the leading service 

export for our nation. VWP countries are the largest source of inbound overseas travel to the 

United States. According to Commerce Department data, 18 million VWP visitors, 65 percent of 

all visitors from overseas traveled to the U.S. in 2011. While here, they spent nearly $69 billion, 

supporting 525,000 American jobs along with $12.8 billion in payroll, and generating $10.5 

billion in government tax revenues. 

Every new overseas visitor from Brazil, Poland and other key markets constitutes a source of 

new economic stimulus. Each has the desire and means to travel to the United States, for 

business and/or pleasure; and rarely do these visits require additional U.S. infrastructure. It is 

2 
235 

just a question of whether our entry process is welcoming or discouraging, as compared with 

destinations in other nations. 

Another key goal of the Visa Waiver Program is to improve standards for air security, travel 

documents and international law enforcement collaboration. As a condition of participation in 

the program, VWP countries must follow strict counter-terrorism, border security, Jaw 

enforcement and document security guidelines, as well as participate in information-sharing 

arrangements with the United States. VWP countries must issue International Civil Aviation 

Organization-compliant electronic passports; report information on all lost and stolen passports 

to the United States through Interpol; and share information on travelers who may pose a 

terrorist or criminal threat to the U. S. As a result, our government is able to supplement our 

watch-list database with information from the travelers' home governments. In addition, each 

VWP traveler must also obtain pre-clearances to board a flight to the U.S. through the ESTA. 

Taken together, these eligibility requirements ensure compliance with elevated security standards 

and cooperation with United States law enforcement. This enables us to better detect, apprehend 

and limit the movement of terrorists, criminals and other dangerous travelers and to shift 

limited visa screening resources to higher risk countries. 

The most effective ambassadors of American values are ordinary Americans. Citizens from 

VWP countries who travel to the United States for tourism or business form life-long 

impressions of American society based on their visits to destinations, large and small, across 

America. From our national parks to our ball parks to our theme parks, the heartland of our great 

nation reflects the best of the United States to foreign visitors. The more they know us, the better 

they like us and the more often they return. 

Surveys have shown that foreigners who have the opportunity to visit the U.S. are 74 percent 

more likely to have a favorable view of our country; and that 61 percent are more likely to 

support the U.S. and its policies. Moreover, the mere agreement itself to establish a visa waiver 

relationship reinforces bilateral goodwill. While its explicit mission is to enhance security and 

encourage travel, the Visa Waiver Program has also demonstrated significant public diplomacy 

value as a "soft power" tool that complements our formal foreign policy mechanisms. 

By strengthening our alliances and enhancing our nation's global image, the VWP has helped to 

keep us safer. By facilitating more efficient flow of overseas visitors for legitimate business and 

leisure at a time when the global travel market is booming, VWP expansion offers enormous 

export opportunity for the U.S. travel and tourism sector across the entire nation. 

INTERNATIONAL TRAVEL PROVISIONS 

The immigration bill also includes other provisons designed to improve the U.S. economy by 

facilitating legitimate travel to the U.S. including reducing visa wait times with measures that 

include: 

• Premium Visa Processing: This provision would establish a pilot program for fee-based, 

expedited interviews at a limited number of consulate posts. Similar to services already 

3 
236 

offered by the State Department for passport issuance, this would allow expedited review 

of visas for travelers willing to pay the additional fee. This service would not alter the 

visa issuance process, thus ensuring no impacts to security. Additionally, the revenue 

generated from the program would be reinvested into the State Department's visa 

issuance activities. 

• Visa Processing Goal: The establishment of a visa processing goal is crtical to ensure 

long-term, strategic planning by the State Department. The provision sets a goal of 

interviewing 80% of the applicants within three weeks for all nonimmigrant visas 

worldwide. It is my understanding that the State Department has already met this goal 

and therefore, I would encourage the Senate to raise the bar with a new goal of 

interviewing 90% of the applicants within ten days, with recognigion of the need to 

concurrently maintain U.S. security and address resoruces allocation. 

• Wait Time Transparency: Requiring the State Department to publish information on visa 

wait times will eliminate uncertainty in the process and facilitate travel planning for 

potential visitors. 

• Encouraging Canadian Visitation: Easing unnecessary restrictions on visitation from 

Canada will only enhance the already strong diplomatic and economic ties between the 

two countries. As we continue with implcmentaion of the "Beyond the Border 

Agreement" we should identifY additional opportunities to boost Canadian visitation to 

the U.S. Vermont has a distinct and important relationship with our Canadian neighbors. 

This relationship is especially strong in the northern region where thousands of 

Canadians own second homes. These Canadians are more than second homeowners, 

though, they are members of our communities, not only as a critical segment of our local 

economy, but generous contributors to our local foundations, arts and humanities 

organizations. As these homeowners reach retirement, they are interested in spending 

more time in the U.S. so we strongly support increasing their time to remain in the U.S. 

to 240 days as proposed in the immigration bill. 

• Global Entry Expansion: We also support inclusion of new language to expand the 

highly successful Global Entry Program that allows pre-approved, low risk international 

travelers the ability to utilize an expedited clearance process upon entry into the U.S. 

Customs and Border Protection personnel to focus inspection resources on unknown or 

risky travelers. 

BRAND USA 

Brand USA is a non-profit, public-private partnership dedicated to promoting the U.S. as a 

premier travel destination in foreign markets. By attracting more visitors, Brand USA increases 

U.S. economic growth, spurs job creation and creates a more positive impression of the U.S. 

around the world- at no cost to U.S. taxpayers. Half of Brand USA's budget, up to a maximum 

of$100 million per year, is funded by the private sector, with matching funds provided by a $10 

fee assessed on visa-free international visitors screened through the Department of Homeland 

Security's Electronic System for Travel Authorization (ESTA). 

4 
237 

Brand USA has already launched successful campaigns in Canada, Japan and the United 

Kingdom and is having a significant impact in these initial markets, showing between a 12 -

14% increase in intent to travel to the U.S. We expect to see similar results as the marketing 

campaign intensifies in the next three markets- China, Brazil and South Korea. 

I represent the "small rural states" on the Brand USA Marketing Advisory Committee. This 

organization has allowed those of us that are not gateway states such as Florida, California and 

New York to finally have a voice in the international travel market. Vermont is lucky to work 

with Discover New England (the 6 states have a marketing cooperative overseas run by a staff of 

3) but that has always been somewhat limited since the visitor is encouraged to visit the entire 

region only giving Vermont one or two nights of the stay. Since Brand USA and Vermont have 

partnered together, it has allowed Vermont to enter the markets of Great Britain, Tokyo and 

Canada, using both New York and Montreal as a gateway as opposed to only Boston with 

Discover New England. Partnering with Jet Blue, we have already seen an increase in visitation 

to Vermont through JFK and I have been able to hire aPR firm in the UK to promote Vermont. 

Brand USA also makes it much more affordable and easier for Vermont to have a presence at 

international trade shows. Having a presence at a trade show allows smaller states a new 

opportunity to market themselves. Just this year at the ITB (largest international trade show in 

Europe) I saw states represented that have never attended before. The interest at the Illinois 

booth was particularly noteworthy with the popularity of the film "Lincoln" which they smartly 

were featuring. Brand USA has done a particularly good job promoting our National Parks and 

Monuments of which many are in smaller more rural states. 

With the aforementioned successes and economic benefits associated with Brand USA's efforts, 

we are very concerned about a provision in Section 6 of the immigration bill that would divert 

75% of the ESTA fees that are used by Brand USA to the general funding pool for border 

security. DHS currently collects about $140 million annually from the $10 fee, and Brand USA 

can access up to $100 million of these EST A funds, if matched with private sector donations. 

The excess $40 million currently is dedicated to deficit reduction. While Vermont and the 

broader travel community would support using the excess fees for the border security 

requirements in the immigration bill, we strongly oppose changing the ESTA funding formula so 

that Brand USA would only receive 25% of the $140 million. Slashing the funding provided to 

Brand USA would greatly reduce the markets Brand USA could tackle and greatly diminish its 

return-on-investment to the U.S. Furthermore, with fewer resources, BUSA would have less 

opportunity to partners with smaller states like Vermont. 

EB-5 PROGRAM 

Vermont has been a pioneer of the EB-5 program through the unparalleled efforts of Jay Peak 

Resort's Bill Stenger, making our state the first in the country to successfully utilize this program 

for resort development and expansion. Jay Peak is a perfect example of this program's benefits 

for the economy and the local community, where jobs are scarce in that part of Vermont and 

conventional lending is not an option. Other resorts in Vermont that have utilized this program 

or are pursuing it for future projects include Sugarbush Resort, the Trapp Family Lodge and 

5 
238 

Mount Snow Resort. In addition, manufacturing companies have likewise benefited from this 

program, thereby strengthening that important component of Vennont's economy. We 

appreciate the inclusion of a penn anent authorization of this important program in Section 2319. 

H-2B WORKERS 

We also very much appreciate inclusion of reforms to the H-2B visa program which is highly 

important to employers in seasonal tourism industries - most importantly the states with lower 

populations and dense visitor seasons. Ski resorts in the winter and beach communities in the 

summers rely on these workers who not only prove to be excellent employees but bring a cultural 

experience to states that do not necessarily enjoy a great deal of diversity. When a trained 

employee can return for several years it is a great benefit to all. We thank you for including 

Sections 460 I and 4602 in the bill. 

VISA VIDEOCONERFENCING 

In geographically large countries, the lack of access to U.S. Consular Offices creates a major 

deterrent to travel to the United States for millions of potential visitors. For this reason, we 

encurage the Committee to add a provision requring the State Department to conduct a pilot 

program using secure videoconferencing technology for visa interviews. By adopting modern 

commications technology commonly used in the pricate sector, U.S. consulates around the world 

could provide increased access for potential travelers while reducing costs for U.S. taxpayers. 

Videoconferencing has become second nature to private industry and even State Government. 

The quality of remote videoconference technology has improved significantly in recent years -

and is now used routinely for secure communications in the State Department and other sensitive 

federal agencies, as well as in such demanding environments as battlefield medicine. The use of 

videoconference technology to conduct visa interviews will enable U.S. consulates in nations 

such as Brazil to significantly expand access to visa services without reducing the level of 

security for visa interviews. 

CBP OFFICER STAFFING 

U.S. Customs and Border Protection's (CBP) recently released Workload Staffing Model 

identified a significant shortage of CBP officers nationwide. In order to enhance security, while 

also facilitating legitimate travel and trade, we strongly support the addition of the 3,500 CBPOs 

included in the legislation. In order to ensure the officers are allocated appropriately, we urge 

the committee to work with CBP to identify and specify the number of officers needed at air, 

land, and sea ports of entry. 

While Vermont lacks a major U.S. gateway airport, our tourism industry relies heavily on traffic 

from major northeast hubs, where travelers often experience significant customs wait times upon 

entry largely due to a lack of resources within CBP. These delays can significantly impact 

foreign perceptions of the U.S. and discourage future visitation. 

6 
239 

Let me give you a couple of examples of the far-reaching impact of this problem. It is common 

for states like Vermont to invite foreign journalist to visit our state and write stories about their 

experience in order to attract international visitors. We recently had 4 journalists from the U.K. 

arrive at l 0:00pm in JFK on a flight that arrives every evening at that time. There was only one 

agent to process all of the international visitors arriving on various flights at that time this 

resulted in a four hour wait at primary inspection. As a result, the journalist didn't arrive to their 

hotel until after 3:00 am. Imagine if you had to wait in a four-hour line to enter a country after 

arriving on a 7-hour flight. Would it leave you with a desire to return? We did all we could to 

show them a wonderful experience in Vermont, but the delays at CBP are likely to also be 

featured in the articles they write. 

For the past two winters we have worked with Porter Airlines from Toronto to fly four flights per 

week into Burlington International Airport. This has opened a huge market for us, and the high 

demand for the flights has proven this market has excellent potential. Yet, instead of helping 

sustain this economic opportunity, as of today, we won't be able to offer the service in the 

summer because CBP has informed us they do not have the officers to process those flights. It 

appears that the CBP officers from the winter are reassigned to Lake Champlain in the summer. 

So essentially, we are going to leave money on the table and hurt our local small businesses as a 

result. 

The land border can also experience similar problems. Our Canadian visitors have found it much 

more difficult to cross the border due to both lines and intesive scrutiny that often borders on 

harassment. I have experienced first hand much greater difficulty coming back into our Vermont 

from Canada. 

We strongly encourage the committee to work with CBP to provide adequate staffing resources 

at our nation's gateway airports to process all flights and to meet a 30 minute per-passenger 

processing goal. Recently released researched from CBP highlighted the significant economic 

impact of CBPOs. Adding a single CBP officer equates to annual benefits of a $2 million 

increase in GDP, $640,000 saved in opportunity costs, and the addition of 33 U.S. jobs. This 

significant economic and security related impacts generated from each officer should more than 

justify the government's investment in increased CBP staffing. 

CONCLUSION 

As noted throughout my testimony, there are various provisions in the bill that recognize the 

importance of legitimate travel to our nation. As we work to reform the entire immigration 

system and enhance border security, we must ensure that our efforts do not unintentionally deny 

the country the significant economic benefits of travel. Just like many other states, Vermont has 

a strong tourism industry and many of the provisions outlined in my testimony will help 

strengthen our state and local economies throughout the country. 

I very much appreciate the opportunity to testify today and look forward to your questions. 

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TESTIMONY OF FORMER CONGRESSMAN JIM KOLBE 

SENATE JUDICIARY COMMITIEE 

22 APRIL 2013 

Chairman Leahy and Members of the Committee: 

Thank you for inviting me to testify before you today on behalf of the Border Security, 

Economic Opportunity and Immigration Modernization Act of 2013. As you may know, I had 

the privilege of serving in the United States Congress from 1985 until 2007, representing 

Arizona's s'h and gth Congressional Districts. Immigration is an issue that has always been in the 

forefront in this border district, with a large and vibrant immigrant community and all the 

strains on law enforcement and social services that accompany illegal immigration. At one 

point less than a decade ago, nearly half of all apprehensions of illegal immigrants in the entire 

country were occurring in this single congressional district. 

I applaud the senators in the so-called "Gang of Eight", and especially Senator Flake 

from my home state of Arizona, who spent many months preparing this legislation. I am 

hopeful that this Committee will engage in a bipartisan effort to fix our country's broken 

immigration system with legislation that offers meaningful solutions. The bill currently before 

the Committee is an excellent start that offers many positive provisions to help U.S. businesses, 

our immigrant population, and our country as a whole. Others on this panel will discuss 

various economic considerations, but I want to talk about one particular provision-completing 

family unification. 

I know first-hand from my days of representing my district in Arizona that immigration 

laws impact all of our lives. I also know, as the partner of a Panamanian immigrant, how 

especially difficult it can be to build a life and protect your family, under our current, 

cumbersome system. While the bill you are considering is an excellent starting point for 

reform, I submit to you that it is still incomplete. Families like mine are left behind as part of 
241 

this proposal. Equally important, U.S. businesses and our economy suffer because of the 

omission of lesbian, gay, bisexual and transgender (LGBT) families from the bill introduced last 

week. 

Eight years ago, I met my partner and future husband, Hector Alfonso. Hector was born 

in Panama, and came to the Unites States on a Fulbright Scholarship to pursue graduate studies 

in special education. He has been a dedicated teacher for almost two decades. The schools 

where he taught, however, could not sponsor him for a green card, and I couldn't either. 

Despite being in a committed relationship and despite the fact that he remained in lawful 

status every day he had been here, Hector was forced to return to Panama when his work visa 

expired. Our twelve month separation-like that of any American from their spouse-was 

painful. Hector returned to Panama while he applied for another visa. Eventually, we 

accomplished this, but it was a long process and it was expensive-far beyond the reach of 

most families. Our laws should not separate American citizens from their loved ones for such 

unacceptably long periods oftime. 

On May 18'h-just a month from now-Hector and I will legally marry here in the 

District of Columbia, surrounded by family and friends. We are immensely fortunate that 

Hector has now secured an investment visa that allows him to remain here with me. Many 

other couples, however, are not as fortunate. Even if they, like us, have a marriage, civil union 

or life-long commitment to each other, their ability to secure a permanent solution that would 

allow them to build a home, family or business together is elusive and difficult to realize. It 

shouldn't be that way, and this Committee has an opportunity to fix this problem. 

The Uniting American Families Act (UAFA)-Iegislation sponsored by Chairman Leahy 

and Senator Collins-would make a profound difference in the lives of many Americans and 

their families. By amending our immigration laws to treat lesbian and gay families as our nation 

treats other immigrant families, UAFA would ensure American citizens are not torn apart from 

their loved ones, or forced in to exile abroad. The Williams Institute at the University of 

California estimates that some 36,000 couples who are raising more than 25,000 children, 

would be given the permanence they need to protect their families and build a life here in this 
242 

country. It is a small number overall. Including this provision would place virtually no 

additional burden on our immigration system. For those families and their children, however, 

UAFA's inclusion in the committee bill would make all the difference in the world. 

The comprehensive immigration reform bill now under consideration by this Committee 

includes important provisions to make U.S. businesses more competitive. The UAFA does the 

same, which is why it is supported by Fortune SOO companies like Intel, Marriott, Texas 

Instruments and US Airways, who have called on lawmakers of both parties to support its 

passage. The failure to recognize lesbian and gay families in our immigration laws has a direct 

impact on American business. 

A survey last year by the American Council on International Personnel (ACIP) found that 

ten percent of their member organizations have lost valuable employees who were forced to 

leave the United States because the employee's spouse or partner had no ability to remain in 

the country. An additional forty-two percent reported missing out on a significant recruiting 

opportunity because a job candidate was unable to bring their partner to the U.S. with them. 

Meanwhile, six of America's top ten trading partners, as well as sixty-five percent of the 

Organization of Economic Cooperation and Development (OECD) member countries, recognize 

lesbian and gay couples for immigration purposes. That puts those countries at a distinct 

competitive advantage over the United States. 

In a letter last month to the eight Senators who authored the Border Security, Economic 

Opportunity and Immigration Modernization Act, a coalition of 28 of our country's most 

prominent companies wrote: 

"We have each worked to help American employees whose families are split apart 

because they cannot sponsor their committed, permanent partners for immigration benefits. 

We have lost productivity when those families are separated; we have borne the costs of 

transferring and retraining talented employees to they may live abroad with their loved ones; 

and we have missed opportunities to bring the best and the brightest to the United States when 

their sexual orientation means they cannot bring their family with them." 
243 

It isn't just major corporations that lose out; small business owners are also suffering. In 

Columbia, South Carolina, a restaurant owner with 25 employees recently made the difficult 

decision to close his business in order to move so he could be with his partner. In Los Angeles, 

a young entrepreneur who employed 30 U.S. workers shut his doors after his Canadian 

partner's visa expired and they were forced into exile. These are stories that should give us all 

pause, and cause us to reflect on the price to both American businesses and American families 

when we choose to leave some of our fellow citizens out of a reform to our immigration laws. 

Prior to serving as a Member of Congress, I also had the privilege to serve our country as 

a member of the United States Navy, including a year's tour in Vietnam on small boats 

alongside now-Secretary of State, John Kerry. Both my service in our armed forces, and in the 

U.S. Congress has reinforced my strong belief that America is unique among the nations of the 

world in its dedication to equality, liberty and justice for all. Our country is changing and our 

laws must change with it in order to protect all American citizens and their families, and to 

strengthen our position in an increasingly competitive, global economy. The immigration 

reform bill currently before this Committee is a step in the right direction, and I commend the 

Committee for taking up the difficult task of immigration reform. It can be made better, 

however, by including American citizens like me, and American businesses-like the 28 who 

recently wrote many on this Committee-who need your vote for this important addition of the 

Uniting American Families act to the bill now before you. 

It is time, Chairman Leahy and members of the Committee, to fix our immigration laws. 

The opportunity is too rare, and the positive impact too great to leave anyone behind. Adding 

UAFA to the committee bill would be a big step toward making it truly comprehensive. 

Thank you. 
244 

ON: 

TO: 

BY: 

DATE: 

THE BORDER SECURITY, ECONOMIC OPPORTUNITY AND 

IMMIGRATION MODERNIZATION ACT, S.744 

U.S. SENATE COMMITIEE ON THE JUDICIARY 

TAMAR JACOBY 

PRESIDENT, IMMIGRATIONWORKS USA 

APRIL 22, 2013 

737 EIGHTH STREET, SE * WASHINGTON DC 20003 

TEL: 202-506-4541 * FAX: 202-595-8962 * WWW.!MM!GRATIONWORKSUSA.DRG 
245 

Testimony before the U.S. Senate Committee on the Judiciary 

Monda~ April 22,2013 

Hearing on the Border Security, Economic Opportunity and Immigration 

Modernization Act 

Statement of 

Tamar Jacoby 

President 

ImmigrationWorks USA 

Good morning, Chairman Leahy, Ranking Member Grassley and distinguished members of 

the Senate Judiciary Committee. Thank you for this opportunity to testify on the less-skilled 

worker visa program in the Border Security, Economic Opportunity and Immigration 

Modernization Act. My name is Tamar Jacoby, and I'm president of ImmigrationWorks USA. 

ImmigrationWorks USA is a national federation of small and medium-sized business owners 

from across the sectors that hire less skilled immigrant workers: hospitality, food 

processing, cleaning, maintenance and construction, among other industries. Our network 

consists of 25 state-based, pro-immigration business coalitions. These local groups fight for 

better immigration law in their states and in Washington and work to educate the public 

about the economic benefits of immigration. Their shared goal: to bring the legal intake of 

less-skilled immigrant workers more into line with the nation's labor needs. 

I'm here today on behalf of my members to express our support for the Border Security, 

Economic Opportunity and Immigration Modernization Act. We applaud the eight Senators 

and staff who came together to craft the legislation. It's a thoughtful, ambitious blueprint, 

proof positive that the art of compromise is still alive in the Senate. Many of my members 

are particularly pleased to see Republican lawmakers engaging as equal partners in the 

effort to pass immigration reform, and we are grateful to all eight Senators for their 

commitment to pragmatism and bipartisanship- pragmatism and bipartisanship evident on 

virtually every page of the bill. 

We believe the legislation would make for dramatic improvements in the workings of the 

nation's dysfunctional immigration system and look forward to supporting passage. But we 

also hope the measure can be improved, most importantly by increasing the size of the 

less-skilled worker W Visa program so that it works to prevent future illegal immigration, 

diverting today's unauthorized immigrant influx and replacing it with a legal labor force. 

I'm going to use my time today to address three issues: 

Number One: The nation's need for less-skilled immigrants and the contribution they make 

to the U.S. economy, not just filling critical jobs for which there are not enough willing and 

able Americans, but also supporting jobs for U.S. workers up and downstream in the local 

marketplace. 

Number Two: The design of the less-skilled worker W Visa program in the Border Security, 

Economic Opportunity and Immigration Modernization Act, which we find innovative and 

ingenious- a break-the-mold 21st century temporary worker visa program. 

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Number Three: Our concerns about the size of the program, which I and many of my 

members fear may not be adequate to prevent illegal immigration in the future. 

The economic benefits of less-skilled immigration 

Americans who are skeptical about the nation's need for immigrant workers often frame the 

issue as a contest between U.S. workers and the foreign-born. These skeptics make claims 

about competition and displacement and adverse wage effects. But this is not the reality in 

the U.S. today. In fact, immigrants, high and low-skilled, fill labor market niches for which 

there are not enough willing and able Americans. And by filling these niches, which are 

generally at the top and bottom of the job-skills ladder- PhD engineer, for example, or 

busboy and farmworker- immigrants make U.S. workers, who are more likely than 

newcomers to occupy the middle rungs of the ladder, more productive. 

The most powerful force driving low-skilled immigration today is not in Mexico or Central 

America or elsewhere beyond our borders. It's the changing nature of the U.S. workforce. 

American families are having fewer children. U.S. fertility rates have declined dramatically 

since the 1960s and are now well below replacement level. For U.S.-born women, the rate is 

currently 1.7 percent- some 20 percent lower than what's needed to maintain the size of 

the population and eventually replace the existing workforce. 

Meanwhile, a second factor, baby boomers are retiring. The numbers are stunning: a full 

10,000 older workers are now leaving the workforce every day, and that rate is expected to 

continue through the next 15 years. 

Third and perhaps most important, the younger workers coming up behind the baby boom 

generation are much more educated than their parents. In 1950, 64 percent of American 

workers were high school dropouts willing to do physically demanding, low-skilled work. 

Today, the figure is less than 10 percent. More than 60 percent of Americans have some 

postsecondary education, whether college or vocational training. And the number 

graduating from college is 25 times greater today than it was in 1950. 

Together, these three factors- smaller families, baby boom retirements and what 

economists call the "educational upgrading" of the U.S. workforce - have had a dramatic 

effect on the pool of Americans available to fill low-skilled jobs. It's no accident that the 

service-sector employers who make up the lion's share of my membership are constantly 

complaining about the difficulty they have finding workers. The pool they have to draw on is 

shrinking, and has been for several decades. For those seeking to hire unskilled men of 

prime working age- high-school dropouts aged 25-34- the supply of U.S.-born workers is 

half the size it was as recently as 1970. 

But many U.S. businesses still need less-skilled workers to meet customers' needs and 

remain competitive. If anything, demand for less-skilled workers is growing. In 1955, 25 

cents of every dollar spent on food was spent in a restaurant; today, the figure is 50 cents 

out of every food dollar. Restaurant and food-service employment is expected to grow by 11 

percent over the next decade, but the 16-to-24 year old workforce that typically fills 

restaurant jobs will grow by only 4 percent. 

The shortfall is even more dramatic in the care professions. According to the Bureau of 

Labor Statistics, the two fastest growing occupations in America are home-health aide and 

personal-care aide. Both will expand by more than 70 percent between now and 2020. 

Combine this with the nation's future need for nurses' aides and child-care workers- also 

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low-skilled, physically demanding work- and the total projected demand adds up to 1.9 

million new jobs. This sounds good: 1.9 million new jobs. The problem: it's more than the 

total number of Americans who are expected to enter the labor force between now and 

2020- just 1.7 million. As Michael Clemens and Lant Pritchett point out in a recent study 

issued by the Center for Global Development, in coming years, the need for low-skilled care 

workers alone will outstrip the growth of the entire U.S. labor force. And given continuing 

trends- smaller families, baby boom retirements and the educational upgrading of the U.S. 

workforce - not many American parents are likely to be raising their children to aspire to 

jobs of this kind. 

Bottom line: we need less-skilled immigrant workers. We're going to need them increasingly 

in the years ahead. And far from taking jobs from Americans, by and large they support and 

create jobs for U.S. workers. Because immigrant workers are different from Americans in 

this case, less skilled, less educated, generally with poorer English and less suited to jobs 

that require communications or management skill -they tend to complement U.S. workers, 

filling empty niches and producing a well-rounded workforce that can fill jobs across the skill 

spectrum. 

Low-skilled immigrant workers allow restaurants to expand and the restaurant industry to 

grow, creating jobs for U.S.-born chefs, U.S.-born waiters, U.S.-born restaurant managers 

and accountants. A restaurant's expansion also creates more work for other businesses up 

and downstream in the local economy, whether food producers or janitorial services or local 

designers and architects. The availability of low-skilled immigrant labor has enabled millions 

of American women to work outside the home in recent decades. And in coming years, lowskilled immigrant health care workers will position more Americans to take advantage of 

better health care jobs: doctors, nurses and lab technicians, among others. 

These are givens- all but inexorable demographic and educational trends that are changing 

the U.S. workforce to create a continuing demand for low-skilled foreign workers. It's not a 

fixed or entirely predictable need: economic trends and technology, among other factors, 

will influence its magnitude in coming years. And these workers represent an increasingly 

small part of the U.S. economy. Remember, most U.S. workers are becoming more 

educated and better skilled, and on the whole, the kinds of jobs on offer in the U.S. are 

becoming more sophisticated. 

But the question remains- a burning question: how in the years ahead is the nation going 

to fill this ongoing need for less-skilled immigrant workers? 

The W Visa program 

The Gang of Eight Senators that crafted the Border Security, Economic Opportunity and 

Immigration Modernization Act faced a daunting challenge in creating a less-skilled worker 

visa program. 

Guest worker programs has proved problematic in the past, both in the U.S. and in Europe, 

giving rise to the well-known quip that there's nothing more permanent than a temporary 

foreign worker. Existing U.S. temporary worker programs offered little to build on. Both 

existing low-skilled programs- H-2A and H-2B, both for seasonal workers only -are 

regarded by many employers as too cumbersome and bureaucratic to be useful, and both 

are disliked by labor advocates, who claim they foster a new form of indentured servitude. 

The Gang of Eight sought to craft a program that would prove workable through future 

decades, flexible enough in size to accommodate the ups and downs of the business cycle 

and meet U.S. labor needs, which could change significantly in future years. And in this 

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realm as others, the Senators strove to find an equitable balance: a new program that 

would provide employers with a stable, reliable, legal labor force, while protecting labor 

rights the rights of less-skilled U.S. workers and the incoming foreign labor force. 

The Senators largely succeeded in my estimation. The W Visa program is a thoughtful, 

creative blueprint- vital bipartisan recognition that we as a nation need a less-skilled 

foreign labor force to fill jobs when there are no willing and able Americans. Presented as a 

drawing without a key to indicate its size or scale, the program would inspire high praise. 

Among its innovative and ingenious features: 

Free movement of workers within the program. In contrast with other, existing U.S. 

temporary worker programs, employers would not sponsor workers for W visas, and 

workers would not be tied to specific jobs or specific employers. A foreign worker could not 

enter the country without a job offer from a U.S. employer. But once workers have entered 

the country, they would be free to change jobs at will, accepting work from any employer 

who had been approved to participate in the program - who had tried to hire U.S. workers 

and demonstrated a bona fide labor need. 

This innovation is a win-win for willing workers and willing employers. For workers, the 

possibility of quitting is the foundation of all other labor rights: leverage to bargain for 

better wages, working conditions, promotions and other benefits. For employers, the new 

model offers more flexibility in managing the size of their labor force and also the possibility 

of hiring in real time without repeating a cumbersome government application process. 

A floating cap. In contrast to existing temporary worker programs, the W Visa yearly 

quota would not be fixed legislatively. Congress would mandate an initial limit. But in future 

years, the cap is designed to adjust automatically in response to changing U.S. labor needs. 

The number of visas issued would float upward in good years when the economy needs 

more foreign workers and downward in down years, when labor demand decreases and 

more Americans are out of work. 

What's more, the Senators recognized, even a floating cap might not always accommodate 

the changing needs of the wide variety of U.S. employers who rely on immigrant workers. 

The government isn't omniscient, the economy is dynamic- and some employers in some 

sectors will need workers even in economic downtimes. The Senators solved this problem 

with a so-called "safety valve," intended to provide relief for employers who cannot find 

workers even when the annual visa quota has been met or unemployment in the metro area 

where the job is located is higher than 8.5 percent. At that point, employers can no longer 

use the regular program. But they can still petition to hire a foreign worker, provided they 

are willing to pay a higher wage and take additional steps to try to recruit U.S. workers. 

Streamlined and easy to use. Employers who participate in the program would be 

required to try to hire Americans first. They would have to complete a variety of specified 

recruitment steps, whether advertising in a local newspaper or visiting a jobs fair or posting 

open slots on the internet, among other options. They would have to pay foreign workers 

the same or slightly higher wages than they pay comparable U.S. workers. And compliance 

with these and other program requirements would be monitored by rigorous government 

audits. But in contrast to existing temporary worker programs, applying for a W Visa slot 

would be a relatively simple, streamlined, predictable process. Most significantly for 

employers, it would be based on attestation rather than certification - and as result less 

costly, more timely and less vulnerable to the whims of government adjudicators. 

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An option to earn permanent status. If the patterns of the past are any guide, workers 

who participate in the new program are likely to come to the U.S. with a range of goals and 

motives. Some will seek to work for a while and then return to their home countries, armed 

with new skills and a nest egg with which to build a home or start a business. Others, 

particularly those who do well while in the United States, may decide they want to settle 

permanently. The Gang of Senators wisely acknowledge this reality and attempt to 

accommodate it. 

The initial W visa would be temporary: good for three years. But just as high-skilled H-lB 

temporary visa holders can eventually transition to permanent visas, so low-skilled workers 

in theW Visa program can eventually become eligible to apply for green cards under the 

new merit-based point system created elsewhere in the Border Security, Economic 

Opportunity and Immigration Modernization Act. 

This provision too would be a win-win for willing workers and willing employers and for the 

United States. For workers, it would mean flexibility and choice. For employers, it would 

open the possibility of retaining and promoting valued workers. For the United States, it 

would combine the benefits of a temporary worker program and those of the nation's 

traditional way of immigration -the melting pot model based on permanent residence and 

assi mil at ion. 

Bottom line: my members and other employers like them find much to admire in the new W 

Visa program. By and large, the program is well designed and carefully crafted. It promises 

to meet employers' needs while protecting U.S. workers. It would be relatively easy to use 

for the vast majority of employers who desperately want a legal way to hire less-skilled 

foreign workers, while disadvantaging those who continue to flout the law and punishing 

them with stiff penalties. 

My main concern and that of my members: that theW Visa program may not be large 

enough to accommodate U.S. labor needs in years ahead and as a result may not succeed 

in replacing the existing flow of illegal immigrants with a legal labor force. 

A program that will work for the future? 

TheW Visa program will be used by a relatively small number of willing workers and willing 

employers- a few hundred thousand workers at most, out of the 150 million that make up 

the U.S. economy. But these direct beneficiaries are far from the only Americans who need 

the program to succeed. 

Without a workable temporary visa program, the nation can have no hope of ending illegal 

immigration. New intensified border enforcement can help control the flow. So can 

workplace enforcement, and my members welcome the E-Verify mandate in the Border 

Security, Economic Opportunity and Immigration Modernization Act. Like most employers, 

my members would welcome the government's help distinguishing new hires who are 

eligible to work in the U.S. from those aren't, as long as their businesses are not liable when 

the E-Verify system is inaccurate. And together, the enforcement mechanisms stipulated by 

the legislation should create a new environment. But ultimately, the best antidote to illegal 

immigration is a legal immigration system that works, meeting unmet U.S. labor needs with 

an adequate supply of foreign workers. 

We learned this lesson the hard way - or should have learned it - over the last three 

decades. An overwhelming majority of the 11 million unauthorized immigrants living in the 

U.S. today would rather be here legally. They came and stayed illegally only because, when 

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work beckoned, there was no lawful way for them to enter the country- under existing law, 

there is effectively no visa program, temporary or permanent, for less-skilled foreigners who 

want to work year-round and have no family in the U.S. to sponsor them. Lawmakers 

considered creating such a visa program the last time they overhauled the immigration 

system, in 1986- but they failed to do so. If we repeat that mistake this year, failing to 

create a legal way for low-skilled workers to enter the country in the future, in 10 or 20 

years we're going to find ourselves in exactly the same predicament we're in today -

wondering what to do about a new 11 or 12 or who knows how many million unauthorized 

immigrants. 

Bottom line: the most important question -the threshold test- about theW Visa program 

is whether or not it will be ample enough to accommodate the nation's foreign labor needs 

in the decades ahead. 

How to anticipate what those needs will be? Most scholars attempting to do so use a 

methodology based in part on the flows of recent decades. 

According the Mexican Migration Monitor developed by researchers at the University of 

Southern California and the Colegio de Ia Frontera Norte in Tijuana, from 2003 to 2009, 

more than 350,000 unauthorized Mexican immigrants entered the U.S. every year to take 

jobs for which there were no willing or able Americans. At the height of the housing boom, 

in 2006 and 2007, the number exceeded 650,000. Even in 2011, with the economy still 

sluggish and uncertain, 150,000 workers came to fill unmet demand. 

The Migration Policy Institute looks at different years, uses a different measure and 

proposes a somewhat different estimate- of the net inflow. But according to this 

calculation, more than 450,000 Mexican immigrants came to the U.S. every year in the 

decade from 1990 to 2000. Between 2000 and 2007, the annual average was 280,000. And 

in the decade ahead, assuming continued soft growth, MPI predicts that demand will range 

from 230,000 to 330,000 workers a year. 

Will theW Visa program be able to accommodate these projected labor needs? Not, 

certainly, in its first four years, when the annual quota will start at 20,000 workers and rise 

year by year to 75,000. In subsequent years, the size of program is intended to ebb and 

flow in response to changing U.S. workforce needs, as measured by employer demand, 

national economic indices and the deliberations of a newly created research bureau. But 

under the act, the upper limit is 200,000 permits a year- still seemingly not enough if the 

past is any guide and expert projections of demand are accurate. 

Other uncertainties further cloud the calculus, among them the complexity of the legislation. 

There are some potential exemptions and exceptions to the quotas that could prove 

significant. The Gang of Eight proposes to admit the spouses of W Visa holders and allow 

them to work in the United States. There is a small additional allotment of visas - up to 10 

percent of the overall annual quota -for meat, poultry and fish cutters and trimmers. And 

by definition, the safety valve would increase annual admissions. 

But even together, these exemptions and exceptions may not produce a robust addition to 

the available immigrant labor force. It's unclear how many W visa-holders' spouses will 

accompany them to the U.S. and choose to participate in the labor force. Married Mexican 

women currently living in the U.S. are significantly less likely than their husbands to work or 

be looking for work. As structured, the safety valve is likely to be too expensive for most 

employers. The wage premium required to participate will vary from occupation to 

occupation and depend on where the job is located. But it in some cases it will be higher 

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than 100 percent, and it will often be more than 50 percent. Additionally problematic, any 

workers admitted under the safety valve will count against the next year's visa quota, 

limiting how much the safety valve can raise the number of workers in the U.S. at any given 

time. 

There is also a quota within a quota for the construction industry: 33 percent of the overall 

annual limit- that's 6,600 in the first year of the program -and never, under any 

circumstances, more than 15,000 workers. This certainly will not to be enough for an 

industry that anticipates adding as many as 350,000 jobs this year and currently relies on 

immigrants for some 20 to 25 percent of its workforce. 

Bottom line: it's hard to predict how many foreign workers the nation will need in years 

ahead -or even how many theW Visa program would admit. But the quotas mandated in 

the legislation - 20,000 to 200,000 registered slots a year- appear inadequate to 

accommodate future needs. And these limits raise serious questions about whether the 

program will work as intended to divert today's illegal immigration into legal channels. 

What sorts of changes would eliminate this uncertainty? It's beyond the scope of this 

testimony to develop detailed improvements to the program, but among the ideas that 

might be considered: 

A larger footprint to start. Few scholars who study the problem of unauthorized 

immigration think 20,000 slots will be adequate to replace the current illegal flow 

even in today's still uncertain economy. 

A more flexible upper limit. Why the arbitrary 200,000-visa cap that bears so little 

relation to past low-skilled immigrant flows? One possible way to create some 

leeway: a returning worker exemption like the one incorporated in the past in the 

H-2B seasonal temporary worker program - an exemption that would be reinstated 

in the H-2B program by the Border Security, Economic Opportunity and Immigration 

Modernization Act. 

A formula that gives more weight to employer efforts to recruit U.S. workers. Surely, 

this is the closest and most accurate measure of whether there are indeed willing 

and able Americans available to take low-skilled jobs. 

Don't try to pick economic winners and losers. Why should the construction industry 

be subject to a quota within a quota? Why should other industries get a special 

allotment? These arbitrary distinctions could have dire consequences for individual 

employers as the construction industry ramps up after years of severe contraction. 

They would severely limit construction growth in years ahead- just as the industry 

is poised to take off and drive the rest of the economy toward full recovery. And they 

are likely to create incentives for unauthorized employment, as immigrants who 

enter the country to work in sectors other than construction gravitate, lawfully or 

not, to higher-paying construction jobs. 

A safety valve that's financially within reach for employers. The safety valve should 

be expensive- that's the intent, it's a special accommodation - but not prohibitively 

so. And it should not be structured in a way that benefits large, well-financed 

employers at the expense of smaller, weaker businesses. As is, not only will many 

smaller business be barred by cost from participating in the safety valve; they will 

also have limited access to workers the following year when the number of visas 

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issued this year under the safety valve limits the number available under the normal 

program. 

Revisit the program after five years. TheW Visa program is a bold experiment- a 

significant departure from any existing temporary worker program. Its design is 

highly promising, but like any new idea, it is sure to need tweaking after a few years 

of operation. The new research bureau, the quotas, the mathematical formula 

designed to expand and contract the program should all be reexamined -and 

perhaps more than once. My members would adamantly oppose an automatic 

sunset. The unpredictability produced by the prospect of a sunset would deter many 

if not most employers from entering the program in the first place. But the new 

system should be assessed and if needs be adjusted in coming years. 

Conclusion 

In closing, I'd like to underscore how much I and my members appreciate the work of the 

Gang of Eight Senators who crafted the Border Security, Economic Opportunity and 

Immigration Modernization Act. Most of the ImmigrationWorks members I've consulted 

agree: theW Visa program is significantly better than the status quo - no program. The 

new system reinvents the very definition of guest worker. It would be market-based but 

respectful of labor rights, easy to use but tough on those who abused the privilege, a boon 

for willing workers and willing employers - a breakthrough design that could become a 

model for other temporary worker programs in the U.S and abroad. 

Our concerns about the size of the program, while significant, can be readily addressed. 

Indeed, some improvements, like a returning worker exemption, could be incorporated - if 

political considerations require it- without changing the overall statutory limit on the size of 

the program. 

Thank you again for this opportunity to testify. My members and I look forward to working 

with members of this committee and others in Congress to improve the W Visa program and 

pass the Border Security, Economic Opportunity and Immigration Modernization Act. 

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253 

Testimony of Rick Judson 

2013 Chairman of the Board, 

National Association of Home Builders 

Before the 

Senate Judiciary Committee 

April22, 2013 

Hearing on 

S.744 

The Border Security, Economic Opportunity, and Immigration Modernization Act 
254 

Introduction 

On behalf of the more than 140,000 members of the National Association of Home Builders (NAHB), I 

appreciate the opportunity to testify today. My name is Rick Judson, and I am a homebuilder and 

developer from Charlotte, North Carolina and NAHB's 2013 Chairman of the Board. 

NAHB supports the goal of many of those in Congress to enact comprehensive immigration reform. A 

stable, just, and efficient immigration system will provide the certainty needed to grow our economy and 

increase competitiveness. 

S.744 strikes a balance between a mandatory, nationwide, E-Verify program and the employer 

community's role in addressing illegal immigration. The legislation creates a fair, efficient, and workable 

system that gives employers clarity with regard to their duties and obligations. It also pre-empts the 

current patchwork of state Jaws, providing employers with a straightforward rulebook for compliance. 

Perhaps most importantly, S.744 honors the direct employer-employee relationship and the current 

"knowing" liability standard. 

S.744 also includes a responsible solution to bringing the current undocumented population out of the 

shadows, and NAHB appreciates the work that has been done to create a new visa program for the lowskill sector within the Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744. However, to ensure the mistakes of the past are not repeated, improvements to theW Visa 

program, particularly for the residential construction industry, should be given due consideration through 

the legislative process. 

NAHB welcomes a strong legislative debate on S.744, and I will direct my testimony today on 

recommended improvements to the W Visa program, the low-skill guest worker program contained in the 

legislation. By way of background, I will first provide information on the importance of foreign workers 

in the residential construction industry and current labor challenges. 

Foreign Labor in Construction 

American and immigrant workers working alongside each other in the construction industry is not a new 

development. Throughout our nation's history, the immigrant community has played a vibrant and 

important role in the industry, often bringing their trade-related expertise and skills to enhance the quality 

of our work. We are proud to say that many immigrants who have come to America and joined our 

industry have been able to enhance their skills, create and grow their own businesses, and gain a foothold 

in the American middle class. 

The home building industry, with the contribution of a substantial immigrant workforce, plays a critical 

role in sustaining the national economy and meeting the nation's housing needs. The inflow of foreignborn labor into construction is cyclical and coincides with overall housing activity. Their share was rising 

rapidly during the housing boom years when labor shortages were widespread and serious. However, 

even during the severe housing downturn and a period of high unemployment, the construction labor 

force continued to recruit new immigrants to replace, for example, native and foreign-born workers 

leaving the industry. 

According to the 2011 American Community Survey, foreign-born workers account for 22% of the 

construction labor force. Particularly, immigrants are concentrated in some of the trades needed to build a 

home, such as carpenters, painters, drywall and ceiling tile installers, brick masons, and construction 

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255 

laborers. These are trades that require less training and education, 1 but consistently register some of the 

highest labor shortages in NAHB surveys. 

The distribution of immigrant construction workers is not even across the United States, with some states 

drawing more than a third of their construction workers from abroad. States that traditionally rely on 

foreign-born labor, but lost its significant share during the housing downturn such as Arizona, 

California, Colorado, Florida, Nevada, and Georgia- are most likely to experience difficulties in filling 

out construction job vacancies once home building takes off. 2 

Worker Shortages in Residential Construction 

Few industries have struggled more during the Great Recession than the home building industry. The 

decline in home construction has been historic and unprecedented. Single-family housing production 

peaked in early 2006 at an annual rate of 1.8 million homes, but construction fell to 353,000 per year in 

early 2009, an 80% decline in activity. A normal year driven by underlying demographics should see 1.4 

million single-family homes produced. When home building is operating at normal levels, there will be 

millions of additional jobs in home building and related trades. 

The improvement in housing markets over the last year has been a welcome change for the economy. 3 

NAHB is anticipating total housing starts of 970,000 this year and 1.18 million in 2014 as the market 

continues its gradual rebound. 

This turnaround presents new labor challenges for the construction industry. The January and March 

2013 NAHB/Wells Fargo Housing Market Index (HMI) surveys, which gauge sales conditions from 

builders across the county, indicate that labor shortages are quickly rising on home builders' list of most 

significant problems. 46 percent of the builders surveyed experienced delays in completing projects on 

time. 15 percent of respondents had to tum down some projects, and nine percent lost or cancelled sales 

as a result of recent labor shortages.' 

Trades with a high concentration of immigrant workers also tend to have more vacancies and labor 

shortages. According to NAHB's HMI surveys, construction trades with the most consistent labor 

shortages are framing crews, carpenters and bricklayers. About 30 percent of surveyed builders were still 

'The construction industry relies heavily on labor that requires less training and education. 21 percent of 

construction workers do not have a high school diploma and an additional third of the construction labor force did 

not study beyond high school. Immigrants who arrive to the United States to work in the construction industry are 

more likely to be drawn into lower-skill trades since roughly half of them do not have a high school diploma and 

additional 27 percent did not study beyond high school. By comparison, only 13 percent of native born workers in 

the construction industry did not graduate from high school and more than half of them went to college. As a result, 

immigrants represent more than half ofthe lowest skill construction labor force, while their overall share in the 

construction labor force is 22 percent. For more detailed information, please see NAI1B Economics, "Immigrant 

Workers in the Construction Labor Force" m•ailable at http://www.nahb.org/gencric.aspx?section!D~734&generic 

Content!D=200529&channeiiD~3!1. 

2 To review a map detailing the regional differences, please see id. 

3 Construction activities have positive impacts by creating ongoing beneficial impacts in communities as new home 

purchasers pay taxes and buy goods and services in the community. For example, NAHB estimates the first-year 

economic impacts of building 100 typical single family homes include $23.1 million in wage and net business 

income, $8.9 million in federal, state and local taxes, and 305 jobs. 

4 NAHB Economics, "Evidence of Growing Labor Shortages in Home Building", available at http://eyeonhousing. 

wordpress .com/20 13/ 03/26/evidence-of-growing-labor-shortages-in-home-buildingl. 
256 

reporting some shortages of labor in these trades in June 2012, even though the shortages were not nearly 

as severe as in the midst of the housing boom. Nine months later, in March 2013, reported labor 

shortages worsened across all trades, but particularly among framing crews and carpenters, with more 

than a half of respondents reporting shortages. 

NAHB works diligently to address the continuing need for skilled labor within the nation's borders. In 

partnership with NAHB and Job Corps, the Home Building Institute (HBI) is a national leader for career 

training and job placement in the building industry. HBl's Job Corps training programs are national in 

scope but implemented locally, using proven models that can be customized to meet the workforce needs 

of communities across the United States. It prepares students with the skills and experience they need for 

successful careers through pre-apprenticeship training, job placement services, mentoring, certification 

programs, textbooks and curricula. With an 80 percent job placement rate for graduates, HBI Job Corps 

programs provide services for disadvantaged youth in 73 centers across the country. 

Yet, NAHB believes strongly that the nation should implement a new market-based visa system that 

would allow more immigrants to legally enter the construction workforce each year. Despite our efforts 

to recruit and train American workers, our industry faces a very real impediment to full recovery if work 

is delayed or even cancelled due to worker shortages. A new, workable visa program would complement 

our skills training efforts within the nation's borders, and fill the labor gaps needed to meet the nation's 

housing needs. 

W Visa Program in S.744 

NAHB appreciates the work that has been done to construct a bold and innovative visa program for the 

low-skill sector that operates unlike any other across the world. TheW Visa program contained in S.744 

reflects a good-faith attempt on the part of the negotiators to address a serious matter that has been 

ignored for decades. 

NAHB believes, however, that the negotiated product is unworkable for our industry. First and foremost, 

the program wrongly singles out the construction industry with a discriminating set of rules and 

stipulations that no other sector of the economy must follow. The distinct set of rules, including an 

arbitrary and meager cap, not only ignores, but rejects, the value of the housing industry to the nation's 

Gross Domestic Product (GOP). 

Housing is a critical part of the economy, once equal to 18 percent of the nation's GOP. Our industry 

should be afforded the same opportunities as any other sector of the economy. Congress must reassess 

this critical flaw in the legislation. 

Other components of the W Visa are not without concern. The 8.5% unemployment trigger is perhaps the 

most concerning component of the program. Immigrant workers fill jobs that are currently going unfilled 

because the majority of Americans are over-qualified and are unwilling to take these jobs. Putting an 

unemployment trigger in the program ignores the simple fact that immigrant workers and native-born 

workers sometimes perfonn jobs that are interdependent. 

The inclusion of a commission in the program is yet another misstep. Under the program, the 

commission will play a role in determining the annual cap after year four of the program's existence, in 

addition to declaring shortage occupations. However, only the marketplace can best make these 

determinations. The most accurate way to measure whether immigrant workers are needed is for 

employers to try, and either succeed or fail, to hire U.S. workers. 

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Additionally, an expensive and undersized program allows only sophisticated and well-funded businesses 

to navigate the complex program. With high fees in the underlying program, as well as under the safety 

valve mechanism, employers with worker shortages will be faced with the decision to either delay or 

cancel a project, or pass along unexpected costs to the consumer. 5 

In the W Visa program, big business wins. There simply is no room for a small business, let alone a startup company, to compete. For the American housing industry, this is a very significant concern. 

The NAHB membership is dominated by small businesses, which construct approximately 80% of the 

new homes built in the United States, including both single-family and multifamily homes. Residential 

construction is, for the most part, comprised of private sector firms. Accordingly, only three to four 

percent of the industry is unionized. 

For NAHB's members, the concept of prevailing wages is unfamiliar, and most would be deterred from 

the complex requirements under the program. NAHB appreciates that theW Visa's prevailing wage 

requirements are a step forward from the wage requirements in the current H-2B program. However, 

including a complex wage scale in the program will deter private small business firms from taking 

advantage of the program. Employees in similarly situated positions should be paid actual wages. 

Employers will already have to pay fees for self-registration and any positions needed, and those fees 

alone should satisfY the employer's financial obligations. 

Another component of theW Visa program that should be addressed is the requirement that the employer 

attest that he or she has not or will not lay off aU .S. worker during the period beginning 90 days prior to 

and ending 90 days after the date the employer designates the registered position. This inflexible rule 

ought to be eliminated. Construction is project-based, and employers must be given flexibility if a project 

is cancelled or delayed due to conditions outside of the employer's control. 

Another concern is the inclusion of complete portability. A registered employer faces the stark reality 

that a W visa holder, on the first day of work, has the option of immediate portability to quit and work 

somewhere else. One positive aspect of the program allows the employer to hire another similarly 

situated employee in the system free of charge. However, whether another worker is available to quickly 

replace the Joss of time and resources is a serious concern. This concern is even more pronounced for the 

construction industry, considering the meager 15,000 visa cap. NAHB believes that employers should 

have some assurances that after navigating a confusing and expensive process, the visa holder will 

actually have to show up to work for the employer who sponsored the worker. 

Conclusion 

NAHB commends the authors ofS.744 for their resolve in taking meaningful steps towards 

comprehensive immigration reform. We also express gratitude to Chairman Leahy and Ranking Member 

Grassley for holding this important hearing today. 

5 The rising cost of inputs drives up the cost of construction, which in tum, drives up the price of a new home. The 

impact is of particular concern in the affordable housing sector where relatively small price increases can have an 

immediate impact on low- to moderate-income horne buyers who are more susceptible to being priced out of the 

market. A 2012 priced-out analysis done by NAHB illustrates the number of households priced out of the market 

for a median priced new home due to a $1,000 price increase. Nationally, this price difference means that when a 

median new home price increases from $225,000 to $226,000, 232,447 households can no longer afford that home. 

See NAHB Economics, "Households Priced-Out by Higher House Prices and Interest Rates", available at 

http://www.nahb.org!generic.aspx?sectioniD=784&genericContent!D=40372. 
258 

Congress should not ignore the importance of the housing industry to the nation during this critical 

juncture for housing and the economy. Tackling comprehensive immigration reform is an enormous task 

that requires a bold vision. Given the significant role that foreign workers play in the housing industry, 

Congress needs to take a long-term, holistic approach to comprehensive immigration reform. 

NAHB stands ready to work with the Senate Judiciary Committee to achieve such reforms and provide 

much-needed stability for this critical sector of the economy. 

Thank you for your attention to our concerns. 
259 

Written Testimony of Brad Smith 

General Counsel and Executive Vice President 

Legal and Corporate Affairs 

Microsoft Corporation 

My name is Brad Smith, and I am the General Counsel and Executive Vice President for Legal and 

Corporate Affairs at Microsoft Corporation. Thank you for the opportunity to participate in this hearing 

and to provide the perspective of a major technology and private sector employer on an issue of critical 

importance to our country. 

The bipartisan introduction of the Border Security, Economic Opportunity, and Immigration 

Modernization Act of 2013 represents the most significant opportunity for comprehensive immigration 

reform in the last 30 years. The bill's sponsors have shown a superb bipartisan spirit by working 

together to strike a careful balance on a range of complex and difficult issues. The bill addresses 

problems that have remained unsolved for over a decade. Its passage would modernize the nation's 

approach to immigration policy, including border security, the undocumented, families, and both low 

skilled and high skilled workers. If passed, the bill would enable technology companies, large and small, 

to keep jobs in America and create more jobs here in the future. Through an extraordinary effort, the 

bill's sponsors have launched an immigration reform process whose successful outcome is critical to our 

nation's ability to remain economically and technologically competitive, and to remain the beacon of 

hope and opportunity this country has always been. 

One of the crucial issues on which Congress must strike the right balance is improving the programs for 

America's access to high skilled foreign talent. The current system does not meet the needs of today's 

economy, and it must be reformed to enable ongoing innovation and economic growth. Like most 

American businesses, Microsoft has seen the enormous contributions that highly educated foreign 

workers bring to our company and our economy. Now more than ever, as our economy continues its 

recovery, we need effective high skilled immigration reform that brings the best talent in the world to 

America and to enables these individuals to work together with the innovators, entrepreneurs and 

talented individuals in our domestic workforce. We need reform that encourages businesses to 

innovate and grow here, while providing reasonable protections for American workers. This bill 

provides a strong framework for just this type of reform. It makes important and badly needed changes 

regarding green cards and H-lB visas for high skilled workers and it provides powerful new enforcement 

authority to ensure that unscrupulous companies cannot abuse the system. It also implements strong 

measures to protect American workers. As with any legislation, there are parts of the bill that may 

benefit from some clarifications and refinement. But this bill contains tremendously important changes 

that will benefit employers, workers, families, and the nation. 
260 

As important as high skilled immigration reform is to our economic prosperity, however, it is only part of 

the solution. To us, unlocking the full potential of our nation's economic capabilities also requires 

investments to provide current and future generations of Americans with the skills needed to succeed in 

an increasingly competitive world. We cannot afford to ignore the need to equip our current workforce 

with new skills, nor can we allow this country to fall behind in providing our children with a strong 

education that equips them for the jobs of the future. Just as we need a healthy immigration system, 

we also need to make targeted investments in STEM education to improve opportunities for current and 

future American workers. We are pleased that the proposed legislation adopts this two-pronged 

solution by coupling high skilled immigration reform with additional funding for STEM education, and we 

hope that this STEM focus and funding will be strengthened further as Congress considers this bill. 

THE U.S. ECONOMY IS PRODUCING MORE HIGH SKILLED JOBS THAN THERE ARE QUALIFIED PEOPLE TO 

FILL THEM. 

When I testified before the Judiciary Subcommittee on Immigration, Refugees, and Border Security in 

July 2011, our country was struggling to emerge from the Great Recession. The nation's unemployment 

rate was above 9 percent, and many were deeply concerned by the prospect of a double-dip recession. 

Twenty-one months later, while many economic indicators have improved, we are still waiting for the 

emergence of a full, sustained economic recovery. The national unemployment rate, now at 7.6 

percent, still reflects an estimated 11.7 million unemployed workers in our country. Educational 

attainment continues to be a crucial differentiator. The unemployment rate for those without a high 

school diploma is 11.1 percent; for high school graduates, it is 7.6 percent. But for those with a 

bachelor's degree, the unemployment rate is only 3.8 percent, and for computer and mathematical 

occupations, it is only 3.2 percent. In many parts of the country, the latter unemployment rate is even 

lower. According to The Boston Consulting Group, the unemployment rate for computer science-related 

jobs in Washington state was only 1 percent over the last half of 2012. 

This disparity illustrates a simple but sobering reality: those with the skills in highest demand were 

largely spared from the effects of the Great Recession, while those without the modern skill sets 

demanded by an innovation economy bore a disproportionate share of the burden from the downturn. 

And even as the economy slowly recovers, this disparity in opportunity persists. 

The Importance of High Skilled Workers to the Economy 

This skills gap unquestionably is impeding our country's economic prosperity. Even while we have close 

to 12 million unemployed in our workforce, the Department of labor reports that there were 3.9 million 

unfilled job openings at the end of February 2013, up from 3.6 million in the previous month. This is the 

highest number of unfilled job openings since May 2008, and it is in large part a reflection of the 

difficulty that employers are having in finding workers with the modern skill sets needed to fill the types 

of jobs being created by today's knowledge economy. As a result, it is taking employers longer than 

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ever to fill the open positions they are creating across the country. Put simply, our economy is 

producing more high skilled jobs than there are high skilled workers to fill them. 

On a local level, we see this happening quite clearly in Washington state, where there are currently 

25,000 unfilled jobs as a direct result of the gap in skills-a deficit that is projected to double to 50,000 

unfilled jobs by 2017. And these aren't the only jobs whose potential is being lost. Economists agree 

that the additional economic activity created when a high skilled, high wage job is filled results in 

more job creation-the so-called "multiplier effect." Factoring in the most conservative estimates for 

the multiplier effect, a recent report by The Boston Consulting Group and the Washington Roundtable 

concluded that leaving these 50,000 jobs unfilled will also forego the opportunity to create enough 

additional jobs to drive down our state's unemployment rate by as much as 1.8 percentage points. 

The Challenge of Finding Enough High Skilled Workers 

Like other employers with high skilled job openings around the country, Microsoft has been confronting 

the challenge of finding workers for our open jobs in a labor market where the necessary skills are in 

short supply. Our recruiters are dedicated to finding the talent we need wherever they can find it, using 

every effective recruiting strategy possible. This includes conducting substantial recruiting activities at 

universities across the nation and extensive targeted recruitment of experienced workers in the 

industry, including veterans and candidates with diverse backgrounds. Despite these efforts, we 

currently have more than 6,300 open positions in the U.S. Over 3,300 of these are for jobs in core 

research, engineering and development. This represents a 29 percent increase in the number of open 

research, engineering and development positions compared to the same time last year. Combined with 

IBM, Intel, Oracle and Qualcomm, these five companies alone have over 10,000 high tech job openings 

in the United States. In New York City, there are postings for over 20,000 open jobs among a group of 

just 25 employers that includes companies like JPMorgan Chase, AT&T, IBM, PriceWaterhouseCoopers 

LLP, Bloomberg, Deloitte and Accenture. This problem isn't improving-it's getting worse. 

This problem is not limited to the computing sector. Increasingly, every company is at least in part a 

software company. Auto manufacturers create advanced software for cars, appliance manufacturers 

build "smart" appliances, and health care companies create software systems to manage medical data. 

To take one example where expertise and understanding of computing will be vital, we can look at Big 

Data, the new frontier in information capture and analysis. Big Data advancements will impact many 

business sectors far beyond the technology industry, including education, energy, transportation, and 

healthcare. As the use and insights from data pervade new areas, companies across our economy will 

need people to create and use these Big Data systems. Yet we are not equipping our population to 

meet that need. A recent McKinsey Report predicts a potential shortfall of 1.5 million "data-savvy" 

managers and analysts by 2018. 

The unmet demand for high skilled talent, particularly in STEM and computer science, is also a key issue 

for start-ups, who rely deeply on the expertise of high skilled workers for driving the key innovations 

upon which they are built. And start-up activity is not limited to Silicon Valley or major urban centers. 

We are seeing an emerging technology scene in the Great Plains area-which many are now calling the 

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"Silicon Prairie" -one of just two regions in the nation that increased its share of the country's angel 

investment deals from 2011 to 2012. The region is now home to start-ups like MindMixer, Hudl, 

AdFreeq, Aglocal, Stackify, and lnvenquery, to name just a few. Eastern Nebraska has seen a three-fold 

increase in start-up activity, with more than $300 million in venture capital available in the state. Des 

Moines, Iowa is home to Dwolla, an online and mobile money transfer company that represents another 

success story. Startup City Des Moines, a tech incubator, has received applications from 160 start-ups in 

the past two years. Yet even with this level of activity, the New York Times reports that the Silicon 

Prairie is being held back by a limited supply of software engineers. Sensible high skilled immigration 

reform, combined with a focus on improving STEM education, will benefit all parts of our country. 

Unless we take new steps to invest in education and reform immigration, America's job growth and 

technology leadership will be at risk. The current persistent talent shortage is simply not a sustainable 

situation for U.S. employers. The risk here is two-fold. First, the inability to fill open positions requiring 

high skilled workers means there is less capacity for research, innovation and technology development. 

Second, if this skills deficit persists, companies will be forced to move unfilled positions to other 

countries, where they can recruit more individuals with the skills needed to fill them. 

WE MUST INCREASE TARGETED INVESTMENTS IN EDUCATION TO BETTER PREPARE AMERICANS FOR 

THE JOB OPPORTUNITIES OF TOMORROW. 

The high skilled jobs in today's modern economy increasingly are requiring an education in STEM fields. 

These types of occupations drive our nation's innovation and competitiveness, and they are 

experiencing some of the fastest growth rates in new job openings and compensation, particularly in the 

highest demand STEM fields like computer science. The shortage of available labor is a reflection of the 

lack of capacity within our education system, resulting from a fundamental underinvestment in 

education in high demand STEM fields. 

This deficit begins early in the educational system. Our K-12 system is not producing enough high school 

graduates with sufficient preparation for success in college, particularly in critically important STEM 

fields of study. In 2011, only 45 percent of U.S. high school graduates were prepared for college-level 

math, and only 30 percent were prepared for college-level science. Our students are also scoring 

significantly lower in math and science literacy compared to their counterparts in other developed 

countries, and this gap is growing as other countries continue to improve their scores at a rapid pace. 

These are clear warning signs that need to be addressed. 

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The lack of education in computer science is an example of an area of particularly acute concern. Of the 

more than 42,000 high schools in the U.S., just 2,255 were even certified to teach the Advanced 

Placement (AP) computer science course in the current academic year. Counter to the growing 

importance of computer science in the job market, AP computer science accounted for less than 1 

percent of all AP tests taken last year-down from 1.6 percent of all tests in 2000. What's more, 41 

states currently do not consider computer science courses even to be part of the "core" curriculum 

distribution requirements students can pursue to graduate from high school. This means there are not 

appropriate incentives in place for students to take computer science education courses, even when 

they are offered. The presence and profile of computer science in K-12 education is actually fading from 

the national landscape at a time when it is needed most. 

Our Computer Science Shortage 

Supply is not meeting demand 

Number of People. Arn\iiJIIy 

The pipeline of talent is restricted within the higher education system as well. The Bureau of Labor 

Statistics has projected approximately 122,000 new job openings each year in computing occupations 

requiring at least a bachelor's degree through the end of this decade. Yet nationally, our universities are 

only producing approximately 51,000 bachelor's degrees in computer science each year. And a 

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significant number of the degrees awarded each year in high demand STEM majors like computer 

science are earned by foreign students studying in the U.S. This means that not only is the pool of 

students in this field too small by over half, but there are also too few American students in that 

undersized pool. 

Consider the following: In 2009, U.S. universities produced 58,058 computer science degrees at the 

bachelor's, master's, and doctoral levels combined. Of those, 11,010-nearly 1 out of every 5-were 

earned by international students. Among those earning advanced degrees, the proportion of 

international students at U.S. universities is even more pronounced. At the master's degree level, 

international students earned 27 percent of all degrees in science and engineering. In computer science, 

that number rose to 46 percent; in engineering, it was 43 percent. At the doctoral level, international 

students earned more than 33 percent of all science and engineering degrees. They comprised 57 

percent of doctorates in engineering and 54 percent of doctorates in computer science. 

Our colleges and universities are not meeting the demand for educating and graduating students with 

degrees in key STEM majors. Our own region in the Seattle metropolitan area is home to one of the top 

computer science departments in the world at the University of Washington. Yet that department 

currently turns away over two-thirds of students at the university who complete the prerequisites and 

apply for this major because of a lack of capacity. This is just one example of a leading university that 

still can't meet the demand of the number of students who want to major in computer science. We 

need to do better. 

This is a high skilled labor shortage that cannot be solved in just a year. We need a sustained, two part 

strategy that leverages high skilled immigration reform to address the labor market's current skills 

deficit at the same time that we invest in educating, training and preparing the U.S. workforce for these 

new opportunities. It is critical that at the very outset of work to pass comprehensive immigration 

reform, Congress carefully strike the proper balance in the high skilled provisions of the bill to reach the 

country's innovation and job growth potential. 

HIGH SKILLED IMMIGRATION REFORM IN THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND 

IMMIGRATION MODERNIZATION ACT OF 2013: KEY STEPS FORWARD 

Modernizing the Supply of High Skilled Green Cards and Matching Green Card Supply to the Needs of 

the Innovation Economy 

When I testified before the Judiciary Subcommittee on Immigration, Refugees, and Border Security in 

2011, the Subcommittee explored in depth the problems associated with the shortage of employmentbased green cards and a quota system for them that had not been updated since 1990, nearly 25 years 

ago. I believe that this bill goes a long way toward addressing those problems. There are several 

components of the green card provisions of the bill that are exceptionally important for tech no logy 

companies and for the ability of the country overall to remain competitive in global markets. In short, 

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this bill modernizes the supply of high skilled green cards, and matches that supply to the needs of our 

innovation economy. 

1 would like to express our deep appreciation to Senators Hatch, Klobuchar, Rubio, and Coons for the 

leadership they have shown in developing and introducing-with 21 other cosponsors-the Immigration 

Innovation Act of 2013, or the "!-Squared Act." Last fall they sat down, rolled up their sleeves, and 

drafted the blueprint for optimal high skilled immigration reforms, providing in the process a model of 

bipartisanship from the very outset of this Congress. We believe that it provided a very important 

contribution to the comprehensive immigration reform effort, and many important features from that 

bill are echoed in this one. 

Perhaps most importantly on the topic of green cards, the legislation before this Committee today 

recognizes the value to the U.S. economy of graduates from U.S. universities with an advanced STEM 

degree. By exempting them from the overall green card quota, the bill provides a clear path to a green 

card for these highly sought-after individuals. Under current law, many face a wait of more than 10 

years to obtain a green card, and they may decide that a career in the United States simply isn't worth 

that kind of instability. As a result, we risk losing these experts to other countries, where they will 

compete against us. This bill goes a long way toward keeping their talents in the United States and 

helping to grow our economy. 

The bill also recognizes the importance of other critical kinds of employees by exempting them from the 

quota as well. This includes outstanding researchers, individuals of extraordinary ability, and 

multinational executives and managers. By ensuring that these individuals do not need to be concerned 

about quota backlogs, they can instead focus on making new discoveries, creating new product lines and 

keeping their companies competitive. 

The bill also takes the sound approach of exempting family members of employment-based immigrants 

from the quota. This helps to keep the focus of the employment-based green card numbers where it 

belongs-on the workers themselves. This also helps to treat all high skilled workers the same, whether 

they have a family or not, bringing a key element of fairness to the system. 

On the subject of fairness, the bill also restores parity to the employment-based immigration system by 

eliminating the "per country" limits on green cards. This change, modeled after a bill authored by 

Senator Lee in 2011, levels the playing field and is long overdue. 

I also applaud the provision of the bill that recaptures employment-based green cards that were 

previously authorized but never used. According to data provided by the Department of State to the 

U.S. Citizenship and Immigration Services Ombudsman and published in the Ombudsman's 2010 Annual 

Report, there were approximately 325,000 employment-based immigrant visa numbers that Congress 

authorized in previous years but that remain unused. There is a substantial backlog that has developed 

for people who have approved labor certification applications and immigrant petitions, and who could 

be given a green card if only there was a green card number available. At Microsoft, where we sponsor 

our employees for permanent residence at the outset of the employment relationship, we have large 

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numbers of employees directly affected by this backlog, and it is a major disruption to their lives and 

their ability to feel that the U.S. is truly their home. It makes great sense to use these employmentbased green card numbers, which were already allocated but never used, to bring these immigrants 

permanently into the American community. 

Enabling Entrepreneurs and Startups 

New companies are one oft he most important drivers of job creation, innovation and economic growth, 

and this bill contains smart provisions to facilitate the cultivation of new ventures and technological 

endeavors. The bill provides a new category of nonimmigrant visas for individuals who can secure 

investment funding for a startup or who have an existing U.S. business that is creating jobs and 

generating significant revenue. The bill would also create an entirely new "EB-6" immigrant visa 

category that would provide up to 10,000 green card numbers each year for entrepreneurs with 

business ventures that are creating jobs for our economy and that have secured ongoing investment 

funding or are generating substantial revenues. We fully support this kind of forward-thinking 

immigration policy, which will help attract the brightest young entrepreneurs from around the world to 

bring their ideas and grow their businesses in the U.S., rather than to other countries, and enhance our 

competitive capability. 

Improving the Supply of H·lB Visas 

Aside from an important but limited exemption that Congress added in 2004 for those who have earned 

an advanced degree from a U.S. university, we work still, in 2013, under an H-lB cap that was set in 

1990-a time when only 15 percent of American households even had a personal computer. It is a visa 

supply that was set for a 1990 economy, and we have long outgrown it. Just two weeks ago, we saw a 

repeat of what is becoming common during periods of relative economic strength. The H-1B cap for the 

coming fiscal year was exceeded in just the first week of availability, with about 40,000 more petitions 

submitted than there are numbers available. 

A Renewed Visa Shortage 

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Running out of H-1B visas this quickly has significant consequences for the economy. This year, 

employers are faced with a scenario in which one-third of the H-1B petitions that they submitted will be 

rejected in the H-19 lottery. These are 40,000 positions that will remain unfilled despite the fact that 

qualified candidates have been identified and job offers have been extended after a careful, intensive 

recruiting process in a very competitive market for talent. This is incredibly disruptive to the business 

planning and operations of U.S. employers. 

At Microsoft, we entered this year's H-19 cap season knowing that we could not file H-B petitions for 

250 candidates we had identified for job offers simply because the cap would be exhausted in the first 

week, a full two months before their graduation dates in June. Among the H-1B petitions we were able 

to file this year, we will likely have more than 200 additional candidates to whom job offers were 

extended, but who will not be selected in the H-19 lottery. When this happens, we don't simply rescind 

these offers of employment. We begin the process of identifying alternative options for employing 

these talented individuals at one of our subsidiaries abroad. The inability to employ these individuals in 

the U.S. means the loss of work that was intended to be performed in the U.S., and along with it, the 

output and productivity our business groups were planning, not to mention the potential tax revenues 

and economic activity associated with the salaries for those jobs. 

These immigration challenges also have very real consequences for the talent we are trying to attract 

Some potential hires are unwilling to jump over all of the hurdles presented by the H-1B cap and will 

simply walk away from the offer of employment in the U.S., opting to instead pursue alternative options 

in their home countries. A few specific examples from our own experience will help illustrate the 

tangible impact to these individuals. Last year, we were unable to file an H-19 petition for one of our 

candidates before the H-1B cap was exhausted due to his graduation date. The inability to start working 

for us in the U.S. was incredibly distressing to him, not only because of the delay in staring a job he was 

excited for, but also because of an uncertain political situation in his home country. We have filed an H19 petition for him under this year's H-lB cap, a year and a half after his original offer of employment 

was extended. In the meantime, he continues to wait on the sidelines for the approval of the petition. 

This year, we extended offers of employment to two candidates who happen to be engaged to one 

another. Again, due to the timing of graduation dates, only one of them could have an H-lB petition 

filed before the cap was reached. This couple is now confronted with the reality of being separated in 

order for one to pursue employment with Microsoft in the U.S. while the other seeks options abroad. 

Without reform to address these unnecessary impediments in the H-19 program, these kinds of 

challenges will deter future high skilled immigrants from investing their skills in our economy. 

An additional consequence is the loss of potential jobs that would have been created in the economy by 

filling these open positions. This month, the Economist reported on yet another in a line of studies 

concluding that bringing high skilled workers to the U.S. creates additional jobs. According to that study, 

for every job created in the high tech sector, an additional4.3 jobs emerge over time in the local 

economy. If there are 40,000 jobs that will go unfilled because of the insufficiency of the H-1B cap, 

there will be an additional172,000 potential new jobs that will go unrealized. Combined, this 

represents nearly 10 percent of the 2.2 million net jobs that were created in all of 2012. The lesson 

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could not be clearer: failing to match the supply of H~1B visas to the demands oftoday's economy 

weakens, in real numbers, the economy's ability to create jobs. 

Without a doubt, high skilled foreign workers are essential leaders of and contributors to the innovation 

and entrepreneurial activity of our nation. The number of talented workers from abroad who have 

founded or co~founded successful, job creating companies, and who have been awarded U.S. patents for 

their inventions is well documented. At Microsoft, these kinds of high impact technical and leadership 

contributions by foreign~born workers are evident throughout our organization. In my testimony from 

2011, I shared about Alex Kipman, an immigrant who led the development of Kinect, one of our most 

successful consumer products and important technical accomplishments. Another example of a high 

impact contributor at Microsoft is Dr. Desney Tan, one of our Principal Researchers. Dr. Tan manages 

the Computational User Experiences Group at our headquarters and holds an affiliate faculty 

appointment in the Department of Computer Science and Engineering at the University of Washington. 

At Microsoft, Dr. Tan researches the adaptation of advanced technologies for applications in human~ 

computer interaction, mobile computing and health care. He has received numerous honors recognizing 

his substantial expertise and significant contributions to the field, including MIT Technology Review's 

"2007 Young Innovators Under 35" award for his work on brain~computer interfaces and Forbes' 

"Revolutionaries: Radical Thinkers and their World~Changing Ideas" for his work on Whole Body 

Computing. Dr. Tan began his career at Microsoft with an H~1B visa, and we subsequently sponsored 

him in the employment-based green card process. Talent of Dr. Tan's caliber illustrates why our 

country's access to the best and brightest from around the world is so essential. 

The Base Cap and the STEM Exemption 

The bill's sponsors wisely included an increase to the base H~lB cap to 110,000 per year, with a new 

exemption for an additional25,000 U.S. advanced STEM degree holders. Even these increases could be 

quickly exhausted in a strong economy, but it is a healthy increase and a very positive step. We also 

commend the focus on addressing our serious skills gap in STEM fields. 

While advanced degree workers are particularly critical, those with Bachelor's degrees in highly 

technical fields for which there are acute shortages are also the type of crucial high skilled talent that 

can drive forward our country's economy and capacity for innovation. H~1B visas are reserved for 

"specialty occupation" jobs that require the theoretical and practical application of a body of highly 

specialized knowledge, requiring completion of a specific course of higher education-typically at least a 

bachelor's degree. These jobs-whether for biophysicists, geneticists, artificial intelligence researchers 

or software engineers-require highly educated and skilled workers at all career stages and levels of 

experience. 

The Market Adjustment Mechanism 

The bill incorporates a crucial concept that better connects the supply of visas with the changing needs 

of our economy. The supply of H-18 visas should not be structured around a fixed numerical limit set 

through congressional negotiation every 10 or 20 years. It should be allowed to fluctuate-either up or 

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down-in response to the conditions actually taking place in the American economy, and the labor 

demand that fluctuates as a result. The bill wisely recognizes this, and includes a market adjustment 

mechanism that allows the base cap to fluctuate between 110,000 and 180,000 per year in response to 

market conditions, never increasing by more than 10,000 in a given year. This is an approach we 

endorse. 

We do have some concerns that the bill's market adjustment mechanism-which has a "High Skilled 

Jobs Demand Index" that factors in the level of new H-18 filings from the previous year with changes in 

the unemployment rate-might not adequately respond to the need for H-18 visas in the labor market. 

Because companies stop filing new H-1B petitions as soon as the quota is reached, the Index may 

undervalue demand. In addition, the Index looks at changes in the unemployment rate without 

considering the actual rate itself, and could therefore restrict upward adjustments in the cap even when 

the unemployment rate is extremely low. Because of these concerns, we believe that the approach 

taken in the !-Squared Act is potentially simpler and more effective. It would measure demand based on 

how quickly the cap is reached, and it would inject additional numbers into the system for that year. 

Improving Protection for American Workers and Other Critical Provisions 

We support strong enforcement of the rules associated with the H-1B program against those that 

violate them. Without question, this bill has introduced a number of tough new enforcement measures 

and tightened restrictions, and we fundamentally agree that the H-1B program should be regulated and 

enforced in a manner that protects American workers, prevents abuse and holds violators accountable. 

But it is equally important to ensure that companies that utilize the H-1B program appropriately, recruit 

and employ thousands of American workers and are key job creators in our economy continue to be 

able to utilize the H-1B program to effectively meet the need for high skilled workers. Enforcement and 

restrictions will be most effective if they are focused on the users whose workforces are most 

dependent on H-18 visas or that show a disregard fort he rules. 

We believe we share common ground with the bill's sponsors, who have taken steps to differentiate 

"dependent" and "super-dependent" users from non-dependent companies. We support the bill's new 

restrictions on these types of employers-such as the phased-in restrictions for employers whose 

workforces are made up by more than fifty percent of workers in either H or L status. We also agree 

with the manner in which the bill differentiates employers who sponsor foreign workers for permanent 

residence from those who do not by treating employees in the green card process like permanent 

residents for purposes of dependency calculations. This is wise policy. 

Changes ta the Prevailing Wage System 

There are new restrictions that have been placed on all employers as well. The prevailing wage system 

has been completely restructured and now subjects all employers to significantly higher wage 

requirements. Microsoft is generally supportive of this approach, in part, because it helps address the 

common misperception that H-1B workers are used as a cheap source of labor. For the overwhelming 

majority of users of the H-18 system, this criticism simply isn't true, and our H-1B workers provide a 

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direct rebuttal of this misperception. At our headquarters, our software development engineers who 

have recently graduated college, for example, have a starting salary that is typically more than 36 

percent above the "Levell" wage in the Department of Labor's current wage system. In fact, their 

salaries are even slightly above the Department of Labor's "Level3" wage for the occupation. 

We sometimes hear that the problem with the H-1B program is that employers are cheap, and that 

instead of providing additional visas for high skilled workers, the government should require employers 

to increase wages to attract the U.S. workers they are supposedly avoiding. let me be plain on this 

point. If employers really wanted only to hire cheaper workers, it would not a difficult thing to do. Our 

industry would not be here asking Congress to modernize the H-lB program and align it to the needs of 

today's economy. Instead companies would be moving additional jobs outside the United States and 

putting them in countries where labor costs are significantly lower. Our industry has come to 

Washington specifically because it wants to create more jobs in this country, both by securing 

meaningful access to global talent and by investing more to help American students and workers gain 

the skills needed for the jobs that will fuel the innovation economy. 

And, in fact, compensation in this area has consistently been increasing due to the short supply of 

talent. The highest growth rates in wages have occurred for positions requiring the highest skill levels. 

Since 1999, wages for computer research scientists have increased 54 percent and wages for software 

engineers have risen 52 percent, substantially ahead of inflation. Technology companies have taken 

dramatic steps to retain and attract talent: in late 2010, Google issued a 10 percent across the board 

pay raise, and Microsoft responded with a similar company-wide increase the following spring. Analysts 

predict this trend of robust wage growth will continue. A report by Robert Half International predicts a 

5 percent average increase in U.S. tech starting salaries for 2013, outpacing inflation and the economy's 

overall wage rate. Growth in compensation for expertise in the newest technologies is occurring even 

more quickly. Analysts predict salaries for mobile application developers to rise 9 percent and wages for 

wireless network engineers and data modelers to rise almost 8 percent. Overall, studies have shown 

that H-lB workers are among the most highly paid and productive workers in the U.S. economy. 

Enhancement af Enforcement Authority 

The bill before this Committee would also give the government substantial new enforcement powers. 

The Department of Labor would be able to initiate investigations based on complaints received two 

years after the alleged violation, up from a one-year limit now. Investigations could be based on 

complaints from anonymous tipsters. No longer would there be a need for "reasonable cause to 

believe" a violation occurred before undertaking an investigation. DOL would have unrestricted 

authority to begin self-initiated investigations, and there would be no time limit at all on how many 

years after an alleged violation one of these non-complaint driven investigations could begin. Standards 

for violations would be broadened, interagency information-sharing would be enhanced and penalties 

would increase. The list goes on. The agencies would have more power than ever before to identify and 

penalize program violations. This is an important change to the law, and will help ensure that 

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companies that don't follow the rules will be found and that rule violations and program abuses will be 

stopped. 

Improvements to Worker Mobility 

We likewise support the proposed provision that would enhance worker mobility for those in H-18 

status. One criticism of the H-18 program we often hear is that H-18 workers are "indentured servants." 

To the contrary, the H-18 program already includes a very specific portability provision that allows H-18 

workers to move very freely to new employers, and many of the H-18 workers we hire at Microsoft 

come to us from other companies. H-18 workers can begin working for a new company as soon as a 

petition from the new employer has been filed. The only limitation of this portability provision is the 

requirement to demonstrate continuity of employment. The H-18 worker must show that he or she is 

still employed by the current employer while applying to transition to a new company. H-18 workers 

who end their employment relationship with their first employer before subsequently finding a new job, 

therefore, are not afforded the same type of mobility. This bill would further improve the mobility of H1B workers by providing a 60-day grace period to look for a new job after initial H-1B employment ends, 

for any reason, and to transition to the new employer without having to leave the United States. 

The bill would also alleviate another and much more significant problem affecting worker mobility-the 

impact of such transitions on an individual's green card process. Today, if a worker being sponsored for 

an employment-based green card changes employers, the worker risks having to restart some or all of 

the stages of the lengthy green card process. The idea of losing one's place in line is a daunting 

prospect, given the extraordinary length of the green card backlog. One solution to this problem is to 

correct the supply of green cards and eliminate the backlog, thereby mitigating the impact of the 

worker's move to a new employer. When the backlog goes away, this problem goes away, and the bill 

takes significant steps in that direction. 

Spousal Employment Authorization 

We also welcome the provision in the bill that would allow the spouses of H-18 workers to be employed. 

Today they cannot, throughout what can be a many-year period while awaiting a green card. This is a 

significant problem for employees and their families. The spouses of H-18 workers tend to be well 

educated, well qualified, able to contribute productively to the economy, and armed with their own 

professional ambitions and goals. Prohibiting their employment causes financial, personal, and other 

hardships for employees, and it causes recruitment and retention problems for employers. The 

provision in this bill allows the spouse to work only if he or she is a national of a country that provides 

reciprocal treatment to the spouses of American workers in that country. This additional requirement, 

though its motivation is understandable, seems slightly self-defeating. A key goal of this provision is to 

enhance American competitiveness in an extremely tight global competition for talent. We support 

entirely the notion that the State Department should aggressively seek agreements in other nations to 

provide the same treatment to Americans, a task that should be facilitated greatly with this provision in 

place. But it would be more in the economic self-interest of the United States to remove the reciprocal 

treatment limitation. 

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Areas for Refinement of Certain New Restrictions and Requirements 

Given the number of new restrictions and requirements included in the proposed legislation, it is 

important to ensure that the provisions are crafted with an appropriate scope and breadth that enables 

compliant, job-creating U.S. employers to continue to use the H-1B program. Two important areas 

would benefit from further clarification and refinement to ensure these goals are achieved. These relate 

to the recruitment requirements and nondisplacement provisions included in this bill. 

Recruitment 

For the first time, the bill includes a recruitment requirement even for employers with a small overall 

population of H-1B workers. For each H-1B petition-including petitions seeking to extend the H-1B 

status of existing employees-every employer would need to attest that it has advertised the job on a 

new website created by the Secretary of Labor, and has offered the job to any U.S. worker who applies 

and is equally or better qualified for the job than the H-1B worker. Employers that are H-1B dependent 

would have to make an additional attestation that they have taken good faith steps to recruit in the U.S. 

using procedures that meet industry-wide standards and are offering compensation that is at least as 

great as that required to be offered to the H-1B nonimmigrant. 

As a threshold matter, it is important to understand that we are not dealing with a choice between 

hiring U.S. workers and hiring foreign workers. The talent shortage is so acute that we need both to 

address today's workforce needs. And, to be clear, Microsoft endorses the idea of requiring that H-1B 

employers make good faith efforts to recruit U.S. workers in the occupations for which H-1Bs are 

sought, using industry-wide standards and offering the same level of compensation. At Microsoft, we 

do this already, not just because it is the right thing to do, but also because it is a necessity to meet our 

business needs. Microsoft engages in massive recruitment efforts for talent-including U.S. workerson a daily basis. We spend millions of dollars each year in our recruitment efforts, with a staff of over 

300 recruiters whose key assignment is to find qualified candidates for our job openings. We hire 

people from hundreds of U.S. universities, and we conduct significant targeted recruitment efforts at 

100 of those schools with whom we have cultivated deep connections and relationships over the years 

to ensure the opportunities available at Microsoft are widely known. We also dedicate significant 

resources to the recruitment of experienced candidates within the industry, and we leverage a 

multitude of connection points, including professional networks and associations, a robust employee 

referral program, dozens of job search websites, social media and our own careers website. We even 

have a blog at www.microsoftjobsblog.com that is devoted to generating as much visibility as possible 

for our opportunities. We don't just wait for potential candidates to find us. We do everything we can 

to find them. 

When we make our hiring decisions, we evaluate our candidates thoughtfully to ensure that the 

candidate with the best qualifications receives an employment offer. We are confident in how we hire 

and the opportunities that we provide to American workers. Our main concern is with having those 

hiring decisions second-guessed years after they are made. This introduces a deep level of uncertainty, 

particularly with regard to how regulators would make appropriate assessments of employers' hiring 

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decisions. The imposition of new requirements on non-dependent employers-whose workforces are 

already comprised primarily of U.S. workers-to keep voluminous records on each applicant and every 

hiring decision would also add a significant level of administrative overhead and expense without 

improving protections for U.S. workers or helping drive innovation and business growth. This level of 

regulation would certainly create substantial new resource demands for the government as well, and in 

the context of compliant, non-dependent employers, may not be the best use of limited enforcement 

resources. Ultimately, employers are in the best position to assess applicants and their qualifications in 

relation to their workforce needs, and it is already in our clear business interest to hire the most 

qualified candidates. We believe that this provision must recognize that reality. 

Nondisplocement 

The bill also includes a requirement that even companies with very small percentages of H-lB workers 

not have displaced a U.S. worker within the 90 days prior to an H-lB petition, and that they will not do 

so within 90 days following a petition. Again, we fully endorse the principle that H-lB visas should not 

be used to displace U.S. workers, but we should be certain to focus the restriction on the practice we all 

want to prohibit-replacing an American worker with an H-lB worker. But as drafted, this provision 

could disrupt a number of situations that Congress would consider to be both legitimate and important 

business options-such as changes in the number of U.S. workers due to acquisition or divestiture 

activity-none of which would involve actual displacement of U.S. workers. Particularly for companies 

like Microsoft with a well-documented record of job creation and hiring U.S. workers, these provisions 

should be carefully crafted to preserve the critical flexibility that employers need to make workforce 

decisions that enable important strategic business decisions. 

The bill recognizes these types of situations and includes an exemption for situations where the number 

of U.S. workers in the professional ranks has not decreased in the prior year. This is a sensible 

exemption, but it may not be broad enough to accommodate for common situations such as 

divestitures, acquisitions, and other noncontroversial occurrences in the corporate ecosystem. The 

framework of the exemption-based on job zones-also creates challenges in calculating the qualifying 

metrics for the exemption. There are simple refinements to address this concern. One option would be 

to require an attestation of nondisplacement that more precisely provides that the employer is not filing 

an H-lB petition for the intent or purpose of displacing a specific U.S. worker. An alternative approach 

would be to apply the nondisplacement provisions to employers whose layoffs exceeded their net hiring 

of U.S. workers. We recognize that compromises are necessary for a bill of this scale, but we are 

optimistic that this provision can be refined while still ensuring strong protections against the 

displacement of U.S. workers. 

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SIGNIFICANT, LONG TERM INVESTMENTS IN THE U.S. STEM PIPELINE ARE CRITICAL 

As I expressed at the outset of this testimony, there is an urgent demand for workers trained in the 

STEM fields, throughout the nation and in a wide range of industries. Yet there simply are not enough 

people with the necessary skills to meet this burgeoning demand. Even more troubling, too few 

American students are achieving the levels of education required to secure jobs in innovation-based 

industries, especially students who have historically been underserved and underrepresented. This 

trend is compounding our economic challenges and limiting our nation's full economic potential. 

High skilled immigration alone is not the solution to the skills shortage. We need to make deeper 

investments in the U.S. STEM education pipeline to ensure that Americans have access to these crucial 

opportunities in our economy. While I'm pleased to see a STEM fund included in this initial bill, a more 

robust national education fund would go further in growing the pipeline of qualified workers and 

keeping these high skilled, high wage jobs in the U.S. There is a real opportunity before us to address 

the threats to employment and economic competitiveness our country faces at its source, and we need 

to ensure the level of our investments in STEM are sufficient to make a long-term difference. 

Experts have reached consensus around the key needs in the STEM pipeline. In K-12 education, we need 

to recruit and train more qualified teachers and help more students prepare adequately for college and 

careers. There also needs to be increased access to computer science in our nation's high schools to 

ensure that all students have the opportunity to gain this foundational knowledge and explore 

promising and fulfilling careers in computing. Within the higher education system, we need to address 

challenges in college completion rates and the ability of higher education to produce more graduates in 

critical STEM degrees, with a particular focus on computer science. Targeting efforts to address each of 

these areas in the pipeline is essential if we are to ensure that all students have the opportunity to 

achieve their dreams and industry has the opportunity to innovate and thrive. 

Here, we can draw from the principles outlined in the !-Squared Act-which has the support of the 

National Governors Association and The Council of Chief State School Officers-with its model of a 

larger national STEM education investment that is urgently needed. That bill contains the "Promoting 

American Ingenuity Account" funded by fees from companies that pay for the additional green cards 

and H-18 visas. The combined fees would generate as much as $500 million dollars each year for the 

U.S. STEM pipeline, a substantial increase from the fund proposed in this legislation. The I-Squared Act 

calls for the money to be state-directed and used for teacher training, post-secondary STEM programs, 

computer science and community college STEM training programs. This level of investment is 

desperately needed by U.S. students, educators and employers. 

Ultimately we cannot expect to build the economy of the future without empowering our people to 

grasp the opportunities that the future promises to provide. With greater investment in STEM 

education, we know we can better prepare the next generation for the waves of technological 

innovation that are on the horizon in every field. If we do, our future is a bright one, not only in 

information technology, but in all kinds of scientific and technological innovation. And more of our 

people will share in, and contribute to, the resulting economic strength and prosperity for our nation. 

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* * * * * 

I want to reiterate that the introduction of the bipartisan Border Security, Economic Opportunity, and 

Immigration Modernization Act of 2013 is a major step forward in the collective effort for 

comprehensive immigration reform. The bill provides sensible solutions not just for high skilled 

immigration, but for our nation's immigration policy as a whole. The Congress has a rare opportunity to 

position our country for leadership in technology and innovation, foster sustained economic growth and 

enhance our global competitiveness. We should not let this moment pass. 

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Testimony Given By 

Ronil Hira, Ph.D., P.E., 

Associate Professor of Public Policy 

Rochester Institute of Technology, Rochester, NY 

In A Hearing Before The 

Judiciary Committee 

U.S. Senate 

On 

"The Border Security, Economic Opportunity, and Immigration 

Modernization Act, S.744." 

April22, 2013 

Hart Senate Office Building 
277 

I want to thank Chainnan Leahy, Ranking Member Grassley, and the members of the committee 

for inviting me to testify today. My name is Ronil Hira. I am a professor of public policy at the 

Rochester Institute of Technology in Rochester, New York. I have been studying high-skill 

immigration policy for more than a decade, so I appreciate the opportunity to share my thoughts 

about how the proposed Border Security, Economic Opportunity, and Immigration 

Modernization Act might impact the U.S. economy and American workers. I want to 

acknowledge Senator Durbin's leadership in ensuring that some reforms of the H-1B and L-1 

guest worker visas were included in this bill. 

I also would like to note that I am the son of immigrants. My parents, both of whom were 

professionals, left India in the 1950s in search of a better life. After leaving India, they first lived 

in France for six years but decided to leave primarily because my late mother, who was a 

physician, could not practice medicine there. Subsequently, they received the opportunity to 

immigrate to America, immediately receiving greencards, and later became naturalized citizens. 

They had long and productive careers, my late father as an engineer and my late mother as an 

anesthesiologist. The opportunity to testify is a professional honor but it is also very meaningful 

to me personally. 

High-skill immigration has the potential to spur innovation and economic growth, and to create 

better job opportunities for American workers. However, l have concluded that our high-skill 

immigration policy, as currently designed and administered, does more harm than good. To meet 

the needs of the U.S. economy and U.S. workers, our guestworker and permanent residence 

programs need immediate and substantial overhaul. I will focus most of my testimony on the HI B guest worker program, but the L-1 and OPT guest worker programs suffer from even more 

significant problems. 

The majority of the H-IB program is now being used to hire cheap indentured workers. 

The bulk of demand for H-1 B visas is driven by the desire for lower cost workers, not by a race 

for specialized talent or a shortage of American talent. All of the top I 0 H-1 B employers in 

FY 12 used the program principally to outsource American jobs to overseas locations. 

Outsourcing firms received more than half of the H-18 visas issued in FY12. Outsourcing 

is only the most visible and obvious symptom of the underlying problems with the H-IB 

program. Program misuse is widespread. 

The H-1 B program currently has three fundamental flaws: 

I) employers can legally hire H-1 B workers at substantially lower wages than American 

workers, 

2) American workers do not have a first and legitimate shot at these jobs and can even be 

replaced by H-1 B workers, and, 

3) accountability in, and oversight of, the program is nearly non-existent. 

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The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744, 

includes safeguards that move in a positive direction, but it falls short by not fixing the 

fundamental problems in the H-lB or other guest worker programs. Employers will 

continue to briug in cheaper foreign workers, with ordinary skills, to directly substitute for, 

rather than complement, workers already in America. Under this bill the H-lB program 

would continue displacing American workers and deny them both current and future 

opportunities. It also discourages American students from pursuing these professions. 

These problems will expand since the bill proposes to roughly double the number ofH-lBs, 

which potentially could grow to a tripling. 

The good news is that adding some modifications to the legislation could solve these 

problems. The provisions contained in S.600, the H-lB and L-1 Visa Reform Act of2013, 

introduced by Senators Grassley and Brown, should be included in S.744. 

Let me turn to some facts about the H-I B program that are not often understood. 

The Mythology & Facts About The H-lB Program 

The public discussion about the H-1 B program is often misleading and mistaken, and does not 

represent the way the program operates in practice. Let me discuss a few key features of how the 

H-1 B program actually works. 

• H-I B advocates often conflate the H-1 B with a legal permanent residence (a greeencard). 

The H-lB program is a temporary non-immigrant work permit. An H-IB is not legal 

permanent residence (a greencard). The employer holds the visa, not the worker, and if 

the H-1 B worker is laid off he must leave the U.S. This provides enormous leverage over 

the H-1 B worker. An H-1 B worker is essentially indentured to a particular employer. 

• The employer, not the worker, has the discretion of applying for a green card for an H-1 B 

worker. And most of the top H-IB employers don't sponsor their H-IB workers for 

grcencards. By my estimates less than half of H-1 Bs are being sponsored for green cards. 

As Table 1 below shows, most of the top H-1 B employers are using the program for 

cheaper temporary labor -as a vehicle to outsource jobs overseas rather than as a bridge 

to permanent immigration. Just to use one example- Aceenture received 4,035 H-1 Bs yet 

applied for a mere 8 greencards for its H-IB workers in FYI2. That is a 0.2% rate, or 1 

green card application for every 50 H-I B workers. 

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Table 1 

The Top 10 H-18 Employers (All Outsourcers) Do Not Sponsor 

Their H-18 Workers For Greencards 

FY 12 H-18 

FY12 H· Initial FY12 Greencard Immigration Yield= 

18 RANK Employer Petitions Applications for H·18s Greencard/ H·18s 

1 Cognizant 9,280 669 7% 

2 Tata 7,485 10 0% 

3 lnfosys 5,600 21 0% 

4 Wipro 4,304 30 1% 

5 Accenture 4,035 8 0% 

6 HCL 2,131 105 5% 

7 Tech Mahindra SATYAM 1,963 20 1% 

8 IBM India 1,846 96 5% 

9 Larsen & Toubro 1,829 15 1% 

10 Deloitte 1,668 260 16% 

TOTAL 40,141 1,234 3% 

• H-1 B workers can be paid wages that are lower than the market wage for an American 

worker. While employers are required to pay a "prevailing" wage, which may sound like 

a market wage it is not. Congress, not the market, sets the "prevailing wage", and it is set 

far below than a market wage. It is the fiduciary duty of employers to lower their costs if 

it increases their profits for the owners, so it is no surprise that employers take advantage 

of the opportunity to hire workers at below-market wages. 

• Employers do not have to look for American workers before hiring an I-1-IB worker. 

Simply put, no shortage is necessary before hiring an H-18 worker. 

• Employers can displace an American worker with an J-1.] 8 worker. This has been 

happening with more frequency. Simply put, even if there is a surplus of American 

workers who are doing the job, they can be displaced by an J-1-1 B. There have been a 

number of documented cases of American workers training their foreign replacements. I 

personally know American engineers, working at a major firm in Rochester, who are 

currently being "shadowed" by guest workers who will soon take over their jobs. The 

American engineers will be let go. Like many American engineers about to lose their jobs 

to guest workers, they are frustrated but scared. They are unwilling to tell their story 

publicly for fear of retribution and for fear of losing their severance packages. 

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• To qualify for an H-113, the foreign worker need no special or rare skills. The worker 

must hold a Bachelor's degree. Approximately 30% of American workers already hold a 

bachelors degree and their unemployment rates continue to be very high. H-lBs can be 

hired into virtually any occupation that generally requires a bachelors degree. The typical 

H-1 B worker has no more than ordinary skills, skills that are abundantly available 

amongst American workers. Or skills that could be easily acquired by American students. 

• The H-IB program is already huge. USCIS doesn't know how many 1-1-!Bs are here but 

analysts estimate that there are approximately 650,000 here right now. On top of that we 

know that approximately 120,000 new H-1 Bs arrive every year. 1 As the National 

Academies found in 2000, these numbers are large enough to distort the labor market. It 

is having significant adverse impacts on the American workforce, job opportunities, and 

wages. In new research to be published shortly, Professor Hal Salzman estimates that 

approximately one-third to one-half of new IT jobs were taken by guest workers on HlB, L-1 and OPT.2 This is not because there aren't enough Americans studying STEM 

t1elds. Salzman finds, "In computer and information science and in engineering, U.S. 

colleges graduate 50 percent more students than are hired into those fields each year; of 

the computer science graduates not entering the IT workforce, 32 percent say it is 

because IT jobs are unavailable, and 53 percent say they found better job opportunities 

outside of IT occupations." Most of the jobs being filled by H-1 Bs are ones that 

Americans can and should be filling. 

• There is no shortage of American STEM workers and students. As Salzman finds, "the 

United States has more than a sufficient supply of workers available to work in STEM 

occupations." The key indicator of a shortage would be rapidly rising wages, but wages 

in STEM and in computer occupations have been essentially flat for more than a decade. 

• The H-1 B program harms employers that hire American workers. Domestic sourcing 

companies, such as Ameritas Technologies and Systems in Motion, arc being penalized 

by U.S. Government H-1 B policies because they arc hiring American workers. Their 

competitor firms hire H-IB workers because they can be paid less than Americans. 

• Stepped up enforcement will not solve the problem. Most of the problems with the H-1 B 

program are loopholes that can only be t1xed through legislation. 

1 The 120,000 is larger than the 85,000 cap because many employers are exempt from the cap. 2 This paper, written by Hal Salzman, Daniel Kuehn, and B. Lindsay Lowell, will be published by the Economic Policy 

Institute. 

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• Program integrity relies almost entirely upon whistleblowers. There is virtually no 

oversight of the program. The only program accountability and integrity comes from 

relying on whistleblowers. This is the worst possible design of program integrity. 

S.744 Moves in the Right Direction But Falls Far Short on Safeguards 

S.744 attempts to address some of the flaws in the H-IB program but falls short. S.600 would fix 

the flaws and close the loopholes. 

S. 7 44 Raises Wage Floor from 17th to 33rd Percentile But Wage Floors Remain Below 

American Wages 

It is an open secret in the information technology industry that H-1 B workers can be paid belowmarket wages. Brian Keane, CEO of Ameritas Technologies and a veteran of the technology 

industry, summed it up this way at a recent Senate briefing of Judiciary Committee staff: 

Outsourcing firms who place H-IB personnel onsite at a client, will typically charge an 

average of $60-75 per hour of IT work. Compare that to a US-based IT staffing firm 

which will need to charge $80-100 per hour, or a US IT consultancy which likely will 

charge $90-150 per hour. Simply put, firms using H-IB labor are paying lower wages so 

they can charge lower prices than equivalent US competitors that use US citizens as their 

workforce. 

Neeraj Gupta, who joins me on this panel, pegs the cost savings at approximately 20%. 

Last week, the Wall Street Journal reported that, "Indian IT professionals working in the U.S. are 

typically paid about 25% less than their American counterparts."3 

S.744 raises the wage floor for the H-I B program from the 17th percentile to the 33rd percentile 

for the particular occupation in a specific geographic area. This is a step in the right direction but 

the 33rd percentile is still far below market wages for American workers. 

To illustrate why this is still too low, let me provide you some concrete examples of what the 

wage floor would be ifS.744 were adopted: 

• Under the bill's wages, a firm could hire an electronics engineer for a mere $39,000 

per year in College Station, TX. This is more than a 37% discount (a whopping 

$23,000 annually) over the starting salary for an entry level Bachelor's degree 

' http:/ /b logs. wsj .com/india re alti me/2013/04/18/u -s-vi sa-bill-very-to ugh-for -indianit/?mod=wsj_streaming_latest-headlines 

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engineer.45 And it is an astonishing 59% lower than the national average wage of 

$95,250 for electronics engineers at all skill levels. 

• Firms could hire a computer programmer for $11.90 per hour in the Pee Dee region 

of South Carolina. This is 68% lower than the national average wage of $78,260. 

• Firms could hire a computer systems analyst for $43,413 per year in Roanoke VA, 

which is 48% lower than the national average salary for computer systems analysts 

of$83,800. Computer systems analysts is by far the most common H-!B occupation 

accounting for more than a quarter of all the H-1 B applications certified by the 

Department of Labor. 6 

• Firms could hire a computer professional for $10.64 per hour in Salisbury, MD, or 

73% lower than the national average wage of $81,140. 

• Firms could hire an accountant for $35,027 in Lewis, MO, or 51% lower than the 

national average wage of $71,040. 

All of these occupations are amongst the top 10 H-18 occupations according to the FY12 

Department of Labor H-1 B data. The three computer occupations above were by far the largest 

of all H-1B occupations accounting for more than half of all of the H-lB applications approved 

by the Department of Labor. The examples I have given are located in low-cost areas but they 

illustrate the rule: the H-1 B wage floors are far below market wages. In some high-cost areas, the 

discounts might be less, but they are still substantial. 

It is worth keeping in mind that the H-IB advocates have claimed that the H-IB workers they 

seek possess superior skills. If this is the case, then those workers should be paid at least the 

average wage. 

Some have argued that American workers are protected by the following employer requirement, 

"Employers must attest to the Department of Labor that they will pay wages to the H -1 B 

nonimmigrant workers that are at least equal to the actual wage paid by the employer to other 

workers with similar experience and qualifications for the job in question." While this sounds 

like a requirement with teeth, in reality it is nothing more than a paper tiger. Any human resource 

professional can easily tweak requirements to make two similar positions appear dissimilar. The 

4 The data for the wage floor is sourced from the prevailing wage tables at the Department of Labor's Foreign 

Labor Certification Program web page. The wage is calculated as the current Level2 wage or 80% of the mean 

wage, whichever is higher. 5 The National Association of Colleges & Employers (NACE) conducts an annual salary survey of recent graduates by 

discipline. 

6 This is based on the Office of Foreign Labor Certification fact sheet for FY12: 

http://www. foreign Ia borcert. dol eta.gov I p df/h_lb _tern p _visa_ 2012. pdf 

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data prove this out. There is no case that I'm aware of where the Department of Labor has tried to 

enforce this requirement. And even if it attempted to, it would be doubtful that it ever could. 

Lastly, I think there are important technical flaws in the ways in which the Department of Labor 

calculates Prevailing Wages. Virtually no electronics engineer with a BS degree is being paid 

$39,000, yet the Department of Labor claims that one-third of them in College Station, TX, are 

being paid less than that. I believe that Congress should ask the Department of Labor to do a 

thorough review of how it is measuring Prevailing Wages and make appropriate changes to 

better reflect the Congress' intent. 

S. 7 44 Requires Posting oj.Jobs But No Actual Active Recruitment Requirements -American 

Workers Deserve a First & Legitimate Shot At These Jobs 

There were a couple positive, albeit weak, steps in S.744 when it comes to recruiting American 

workers. 

S. 744 requires that H-1 B jobs be posted to a national jobs board for 30 days There is nothing 

stopping the jobs posting from becoming more than a pro fonna exercise, where firms post the 

jobs but still hire an H-1 8 instead of a qualified American applicant. The bill should include a 

tally of the number of applicants for each position posted. 

Most H-1 8 employers will never have to look for American workers prior to hiring an 

Americans. The bill does not require "good faith" recruiting of American workers. It should. 

The good faith recruitment requirements are common sense and are not burdensome. Here are 

some excerpts from the compliance guidance from the Department of Labor of what is required.7 

What does the term ~·recruitment" mean? 

The term "recruitment" means the process by which an employer seeks to contact or to attract the attention 

of any person who may apply for any job that the employer is considering filling with an H -IB worker. 

Recruitment must take place before the LCA or petition is filed. Recruitment includes soliciting, receiving, 

considering, and revie\\'ing applications. 

What solicitation methods may an employer use in seeking to contact or to attract the attention of 

potential U.S. applicants for employment and to solicit applications from persons for employment? 

"Solicitation methods'' that an employer may use are: 

Either external or intemal to the employer's worktorce; or 

Either active (where an employer takes positive, proactive steps to identity potential applicants 

and to get information about its job openings into the hands of such persons), or passive (where 

potential applicants find their way to an employer's job announcements). 

7 http://www .dol.gov /wh d/ regs/ compliance/Fa ctSh eet6 2/whd fs62 0. ht m 

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An employer must recruit in ~'good faith." What does this mean? 

An employer which recruits in good faith must offer fair and nondiscriminatory opportunities for 

employment to U.S. workers. U.S. workers must be given fair consideration tor jobs. H-lB workers must 

not be favored over U.S. workers. 

It is good step that S.744 has eliminated a major loophole in the good faith recruitment 

requirements for so-called H-1 B Dependent firms. Current law provides H-IB Dependent firms 

exemptions the additional good faith and non-displacement regulations if they claimed to pay the 

H-1 B worker more than $60,000 or if the worker held a Masters degree. This loophole was 

widely used by most !·l-IB Dependent finns. While this loophole has been closed, the bill puts a 

new one in its place. Firms will be exempted from the requirements should they begin the 

paperwork for green cards for some of their workers. We could see a rush to begin paperwork 

with no intention of following through. As former Congressman Bruce Morrison observed 

recently, "It could just be a matter of paper pushing, ... All you have to do is file a piece of paper, 

which doesn't even have to be approved or approvable." 

S. 7 44 Attempts to Curb Outsourcing But Simply Shifts it to Other Firms Instead 

The H-18 visa has been aptly dubbed the "outsourcing visa" by a number of observers. All of the 

top 10 H-18 employers in FY12 use the program principally to outsource American jobs 

overseas. Table 2 below shows this very clearly. Every single finn used the program to facilitate 

the shipping of American jobs overseas. These ten firms alone received an astonishing 40,141 HlB visas in FY 12, or nearly half of that year's allotment. 

Table 2 

All of the Top 10 H-1B Employers in FY12 Used It Principally for Offshoring 

FY12 H-18 Significant 

RANK Employer FY 12 H-lB Initial Petitions Offshoring 

1 Cognizant 9,280 X 

2 Tata 7,485 X 

3 lnfosys 5,600 X 

4 Wipro 4,304 X 

5 Accenture 4,035 X 

6 HCL 2,131 X 

7 Tech Mahindra SATYAM 1,963 X 

8 IBM India 1,846 X 

9 Larsen & Toubro 1,829 X 

10 Deloitte 1,668 X 

TOTAL 40,141 

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Three key provisions in S.744 attempt to curb the use of the H-1 B program for outsourcing 

American jobs overseas. The first is the so-called 50/50 rule, which prohibits finns that have 

more than 50% of its U.S. workforce on H-18 or L-1 visas from getting additional visas. This is 

a good rule but it isn't sufficient. Many ofthe firms that use the H-1 B program to ship American 

jobs overseas, like IBM India and Accenture, will not meet these thresholds due their legacy 

business models. Therefore, we will simply see the outsourcing shift from a company like 

Cognizant, which will face restrictions, to an Accenture, which will not. The net result for 

American workers and the American economy will still be same negative outcome - more jobs 

being shipped offshore due to loopholes in the H-IB program. 

The second is that H-1 B dependent firms will have to meet a higher wage floor than other H-1 B 

employers. That wage floor will be set at the average wage for the occupation in the geographic 

area. This is, again, a good development but the likely outcome will be a shift of work from HIB dependent outsourcers to outsourcers that are not H-18 dependent. American workers will 

continue to be undercut and undermined. 

Another good provision ofS.744 is that it bans the outplacement ofH-1 B workers. But it only 

bans it for H-1 B Dependent finns. It allows non-dependent firms to do outplacement by paying a 

$500 fee. Again, we would expect that work will shift from dependent to non-dependent firms 

and that American workers will continue to be undercut. 

S. 744 Only Includes Regular Audits of H-JB Dependent Firms 

In addition to abuse, which is legal due to loopholes, the H-18 program has been rife with fraud 

for many years. This hasn't been stamped out because program integrity is almost entirely reliant 

on hoping that whistle blowers will come forward. There is absolutely no rational reason for an 

H-1 B worker to come forward with a complaint. Their visa is held by their employer, so if they 

complain they could be fired and have to leave the country. But more importantly, H-18 

whistleblower cases typically take 5 years to adjudicate and result in awards that are miniscule. 

One case of alleged widespread fraud by Infosys is illustrative. The whistleblower, Jay Palmer, 

has been subjected to threats and harassment for years. 

S.744 includes audits only ofH-18 Dependent firms. These are a small number ofH-1 B 

employers that account for an outsized share of the number ofH-1 Bs granted. However, the bill 

does not require any random auditing of other H-1 B employers. This is a significant drawback in 

the bill. A random audit of all H-1 B employers should be adopted. Without it, the vast majority 

of H-1 B have no reason to carefully comply with the regulations. 

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S. 7 44 Includes Important Non-Displacement Requirements For All Firms 

The H-18 program has been used to displace American workers at many firms. This sometimes 

happens in subtle ways. Age discrimination is an open secret in the technology industry and the 

H-18 workers, most of whom are young, have been used as a way fuel this age discrimination. 

I would urge Congress to keep the non-displacement requirements outlined in section 4221 for 

all firms. These provisions will ensure that employers are using the H-1 8 for truly specialized 

talent rather than because the H-1B worker is younger, and therefore cheaper. 

The non-displacement requirements for L-1 visas, contained in Section 4301, are also important 

to include in any final legislation. The L-1 visa has been extensively to displace American 

workers. 

Major Problems With L-1 & OPT Visas Not Addressed 

The L-1 and OPT visa programs are in many ways more harmful to American workers than the 

H-18 program. 

Neither the L-1 nor the OPT have any wage floor, a cap, recruitment requirements, or nondisplacement. Further, neither program has virtually any scrutiny. We have no idea how many L1 visa holders are here at any one time, and unlike the H-IB, we don't even know how many are 

coming in every year. 

The L-1 program has been extensively used to support the outsourcing of American jobs 

oversea.'> as can be seen by Table 3. S.744 wouldn't stem this at all. 

The L-1 visa program has no wage floor and the wage arbitrage opportunities are even greater. 

Workers can be paid home country wages. The wage differentials between America and India, 

the source country for the largest share ofL-1 s, are staggering. In the case of an information 

technology worker from India, this could mean a salary of just $10,000 per year. Even including 

the housing allowances and living expenses often given to these workers, the wages would be far 

below market. S.744 does not set a wage floor. 

I would note that the industry lobbying coalition, Compete America, heartily endorsed the IDEA 

Act of20!1 introduced in the House in the !12th Congress. 8 That bill included a wage floor for 

L-1 workers, something that doesn't exist now. 

8 See: http://www .co mpeteamerica.org/media/ideaact2011 

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Table3 

Top 10 L-1 Employers for Fiscal Year 2008 

8 of 10 Have Significant Offshoring 

L-1 Use Rank Company L-Is Obtained Significant Offshoring 

FY08 

1 Tata Consultancy Services L998 X 

2 Cognizant Technology 1,893 X 

3 Wipro 662 X 

4 Satyam (now Mahindra Satyam) 604 X 

5 Infosys 377 X 

6 IBM India 364 X 

7 Hewlett Packard 319 X 

8 GSTechnical Services 288 X 

9 Schlumberger 287 

10 Intel Corp 226 

Source: DHS USCIS 

In 2008, Optional Practical Training (OPT) was extended from 12 to 29 months for STEM 

graduates to fill what was then called a shortage in the STEM field. 

While the H- IB program has loopholes that allow employers to bring in cheaper workers, the 

OPT has even wider loopholes and little oversight and transparency. For example, unlike the HIB there is no wage floor for the OPT. B. Lindsay Lowell, a research professor at Georgetown 

University, estimates that OPT workers are paid a mere 40% of equivalent US workers. And 

many of the major beneficiaries of the OPT STEM extension are obscure universities with 

dubious credentials. For example, students from the unaccredited University of Northern 

Virginia, which was recently raided by USCIS investigators, received 189 OPT STEM 

extensions, 14th on the list of all universities. According to media reports USC IS has revoked 

University of Northern Virginia's ability to issue any new F -I student visas for international 

students. For those foreign students who wish to work in the US for extended periods of time, 

rather than simply obtain practical training, they should have their employers use the H-1 B 

program. 

Major Increase in H-lB Cap is Unwarranted & Detrimental 

There is no reason for an increase in the H-1 B cap, and any increase would do significant harm 

to American workers and students. 

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All objective studies that have examined the STEM labor markets have concluded that there is 

no systemic shortage of American workers and students. These have been conducted by 

academics, like Salzman and Lowell, as well as respected think tanks like RAND. 

There are always spot shortages for specialized talent. To address these shortages immigration 

policy should allow employers access foreign guest workers for these positions. A large H-1 8 

program will send a clear signal to American students to avoid professions where employers will 

simply use the H-18 to import cheaper workers. It will also send a signal to the employers that 

they do not have to invest in workforce development. 

S.744 is extremely generous with the number of skilled greencards that have been allocated. 

There is no reason why the number of guest workers need to be increased. The proposed E8 

green cards coupled with the current guestworker program already has the potential to overwhelm 

the American STEM labor market. 

Trade Policy Creeping in on Immigration Policy in S.744 

There are a few provisions in S.744 that require more clarification. It is unclear what Section 

4402 would do to the law. Docs it exempt these nationals from free trade agreement countries 

from the H-1 B cap? From the rules? We need more clarity on the goal of this section. 

H-JBsfor Ireland Without the Bachelors Requirement 

Section 4403 ofS.744 appears to create a new work visa program for people from under the 

existing E-3 program. The E-3 was created as an H-18 program specifically for Australians as 

workaround of the U.S.-Australian Free Trade Agreement. It has a cap of 10,000 visas and 

allows Australians to avoid the H-1 B cap. Under the E-3 program, S.744 creates a new set of 

temporary work permits for Irish who have no more than a high school education. 

The temporary non-immigrant work program is already too complex. It makes little sense to add 

to the alphabet soup of visa programs. There should be a bright line between trade and 

immigration policy. 

Recommendations 

By closing the H- 1 Band L-1 visa loopholes described above, Congress would create and retain 

hundreds of thousands of high-wage American jobs and ensure that our labor market works fairly 

for American and foreign workers alike. The "H-I Band L-1 Visa Reform Act of2013", S.600, 

would solve the most important problems with these programs and should be included in S. 744. 

I summarize what needs to be done to restore the integrity of the programs below. 

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Pay Guest Workers True Market Wages 

H-18 and L-1 workers should be paid true market wages. The Congressionally imposed fourlevel wage structure for the H-1 8 program should be abandoned. No guest worker should be paid 

less than the median wage in the occupation for all skill levels. Ensuring that employers pay 

market wages will remove the temptation of wage arbitrage. Further, employers should pay an 

annual fee equal to I 0% of the average annual wage in the occupation. Those fees could be used 

to increase the skills of the American workforce and will ensure that employers are hiring guest 

workers who are filling real gaps in the labor market. 

S.744 increases the wage floor but H-ll3s can still be paid below-market wages. And the bill 

does nothing to fix the L-1 wages. 

Institute an Effective Labor Market Test 

All employers should, at a minimum, perform good faith recruitment of American workers prior 

to hiring an H-l 8 or L-l worker. They should also be required to not displace American 

workers. 

L-1 I3 visas surpassed the number of L-1 As over the past decade, in concert with the rise of the 

offshore outsourcing industry. Yet no one, including the consular officers who review the 

applications, can identify what constitutes specialized knowledge. Congress should either 

eliminate the category or clearly define specialized knowledge. 

S.744 only applies good faith recruiting to a small subset of employers and provides no clarity on 

what constitutes L-1 8 specialized knowledge. 

Eliminate access to additional H-1B and L-1 visas for any H-1 B Dependent/inns. 

The programs are intended to help employers in the United States operate more effectively, 

providing them skilled workers they cannot find in the U.S. It should not be a way for businesses 

to compete here in the U.S. with an imported workforce. With the exception of very small 

businesses, no employer should be permitted to employ a workforce consisting of more than 

15% H-1 8s or L-1 s. There is no reason, other than wage arbitrage, for any firm to have more 

than 15% of its workforce on guest worker visas. 

S.744 sets the threshold at 50%. This is a good step in the right direction but the threshold should 

be set lower. 

Shine Light on H-1B & L-1 Program Practice 

There is widespread and substantial misunderstanding, in the media and even amongst some 

policy makers, about how the programs work in practice. Many of these misunderstandings 

could be cleared up through greater transparency. Congress and USCIS should publish data on 

program use by employer, including job title, job location, actual wages paid, and whether the 

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worker is being sponsored for permanent residence. The data should include all H-1 8 & L-1 

workers, not just newly issued and renewed petitions. Further, the practice and impact of L-1 

blanket petitions should be examined. 

H-18 & L-1 use by H-JB Dependent firms should be investigated and the findings publicly 

released. The GAO or IG should be asked to complete a study of the weaknesses of the H-18 

Dependent regulations on good faith recruiting and non-displacement. So called H-1 8 

Dependent firms must meet additional requirements prior to hiring an H-18 worker, yet it is 

clear that these firms are able to circumvent Congress' intent regarding those additional 

requirements. As noted above, these firms are able to hire literally thousands of 1-1-1 Bs annually 

without hiring any Americans for those positions. 

Institute Sensible Oversight 

Through their usc of guest worker visas employers are asking government to intervene in the 

normal functioning of the American labor market. With this privilege should come 

accountability. Employers using guest workers should be subject to random audits to ensure they 

are fulfilling the obligations contained in their attestations. And government agencies in charge 

of these programs- the Departments of Homeland Security, Labor, and State-should be 

granted the authority, and allocated resources, to ensure the programs are operating properly. 

Given the efforts in Congress to cut deeply into discretionary spending, some mechanism to fund 

these audits should be created. At a minimum, one in ten H-1 8 & L-1 employers should be 

audited and, if they arc not eliminated, every H-1 8 Dependent firm should be audited every year. 

S.744 includes audits only ofthc H-1 8 Dependent firms. The vast majority of firms will never be 

kept accountable by an audit. So, the program will continue to ensure its integrity solely by 

whistleblowers. 

Establish a Clear Single Objective for the H-I B Program 

The H-1 B program is a so-called "dual-intent" visa; i.e., though the visas are temporary, 

employers can choose to sponsor these workers for pennanent residence. While this design 

feature appears to provide flexibility, it comes at substantial cost. Is the H-1 B program supposed 

to be truly temporary, be used sparingly, and only for short periods of time? Or is it the way to 

entice very recent foreign graduates of American universities to stay pennanently? Or is it the 

primary bridge to immigration for high-skilled workers who are trained abroad? Each ofthese 

objectives creates inherent conflicts in program design; e.g., in setting wage floors. Congress 

should consider how to limit the scope of the H-1 B program to improve its performance. 

Other High-Skill Visa Programs Need Scrutiny & Fixing 

I have highlighted in detail the problems with the H-1 Band L-1 visa programs. But I would like 

to briefly point to some other critical issues for high skill immigration policy. Other temporary 

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visa programs, such as the B-1, OPT, and J-1, are also badly in need of an overhaul, and are 

being used to circumvent the annual numerical limit on H-IBs and the regulatory controls on the 

L-1. 

With respect to the B-1 "business visitor" visa we have even less information about how it might 

be being exploited, but recent news reports and an ongoing lawsuit reveal that they are being 

used to get around the H-1 B rules and cap. Pending litigation alleges that B-1 visas are being 

used for shuttling in workers rather than business visitors. And job websites advertise explicitly 

for jobs for foreigners with eligible B-1 & B-2 visas9

, in direct contradiction of the purpose of 

these visas. 

In 2008, the duration of the OPT work visa was extended for STEM majors to 29 months without 

oversight or any approval from Congress. The list of eligible majors was recently expanded by 

the Obama Administration. The largest beneficiaries of this extension are obscure colleges that 

are providing workers to the offshore outsourcing industry. 10 There is no wage floor for OPT and 

one analyst estimates they are paid a mere 40% of what Americans earn. The rationale for the 

OPT extension has disappeared- according an analysis of BLS data by IEEE-USA more than 

300,000 American engineers and computer professionals are unemployed -so the OPT STEM 

extension should be rolled back to its original duration. 

S.744 does nothing to address these major loopholes. 

Immigration Policy Should Be 111ade By Congress, Not the US. Trade Representative 

Given the widespread use of both H-1 B and L-1 visas by offshore outsourcing firms, Congress 

should take affirmative steps to make it clear that both guest worker programs and permanent 

residence are immigration, and not trade, policy issues. In 2003, the U.S. Trade Representative 

(USTR) negotiated rree trade agreements (FT As) with Chile and Singapore, which included 

additional H-1 B visas for those two countries, and constrained Congress from changing laws that 

govern the L-1 visa program. In response, many members of Congress felt it was importantto reassert that Congress, not the USTR, has jurisdiction over immigration laws. But no law was ever 

passed. Without legislation, the muddying of trade and immigration policy will keep recurring. 

Most recently, it appears that some L-1 visa provisions were included as a side agreement in the 

Korea-U.S. Free Trade Agreement. Many countries, including India, have pressed for more 

liberalized visa regimes through trade agreements including proposing a new GATS work visa. 

Congress, not the U.S. Trade Representative, should have the authority to change these laws, and 

Congress should pass a law reaffirming jurisdiction. 

9 See "'-'YYL!le.!!.krLcom as described in Malia Politzer & Surabhi Agarwarl, "B-1 visa holders in demand on job 

portals," LiveMint.com, June 23, 2011. bttpiL;.v_,y;.vJivgmintcq_m/20 ll/O£Ll3.Q1_4g 1?/B 1-yisa::lJ.Qj_dgr__dfl:.d£rr1eD.cJ.:. 

For the list of universities benefitting from the OPT STEM extension see, 

http:L(;.v_;.vw.compJ!J~I:\YOJirtcornLs/article/919§Ll?/H 1B .eL1Sl_ !:low_the tech_ w_orker visa isr~l11eHOiULin_ 

America 

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Simple Administrative Fix Would Prioritize Foreign Graduates of American Universities 

Some have argued that foreign students with advanced degrees from American universities 

should have a priority with the H-1 B program but DHS could easily do more to fulfill this goal. 

The quota for new H-1 B workers is 85,000 per year with 20,000 of those set aside for advanced 

degree graduates of U.S. universities. The 20,000 additional visas were created specifically to 

provide prioritization for advanced degree graduates of U.S. universities. But the way in which 

DHS counts advanced degree holders towards the cap severely hampers its effectiveness. DHS 

fills the 20,000 cap with applications from advanced degree graduates before counting them 

against the 65,000. lfDHS instead counted them against base cap of 65,000 first it would free up 

more than enough spaces for advanced degree holders. 

S.744 expands the base cap substantially from 65,000 to 110,000. But it only increases the 

advanced degree cap from 20,000 to 25,000. This is one of the most baffling features of the 

legislation. Industry has repeatedly put the straw man forward that the cap is too low so foreign 

graduates of American universities are being forced out ofthe country. If there is any increase in 

the cap, and I don't think it is warranted, it should be allocated towards advanced degree 

graduates of U.S. universities. 

Immigration Policy Should Be Made By Congress But It Needs Specialized Expertise From An 

Independent Commission 

A number of think tanks and academics, including the Migration Policy Institute and the 

Economic Policy Institute, have recommended that Congress create a standing commission on 

immigration. This commission would track the implementation of policy, the changing needs of 

the U.S. economy and labor market, and make recommendations to Congress on legislative 

changes. Given the nature of immigration policymaking Congress should seriously consider 

creating such a commission. 

S. 744 proposes creating a Bureau to address these but it is focused on low-skilled guestworker 

programs. The Bureau's jurisdiction should be expanded to high-skilled guestworker programs. 

CONCLUSION 

In conclusion, let me say that I believe the United States benefits enormously from high skilled 

permanent immigration, especially in the technology sectors. We can and should encourage the 

best and brightest to come to the United States and settle here permanently. But our future 

critically depends on our homegrown talent, and while we should welcome foreign workers, we 

must do it without undermining American workers and students. Closing the H-I B& L-1 visa 

loopholes would ensure that the technology sector remains an attractive labor market for 

Americans and continues to act as a magnet for the world's best and brightest. 

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Those the H-18 & L-1 programs have repeatedly made claims that the program is needed 

because there is a shortage of American workers with the requisite skills, and the foreign workers 

being imported are the best and brightest. If that is indeed the case, then those employers should 

not object to these sensible reforms. The policies I have proposed pose no limitations on 

employers' ability to hire foreign workers who truly complement America's talent pool. 

18 
294 

Testimony Given By 

Neeraj Gupta 

CEO, Systems In Motion 

Managing Director, Cervin Ventures 

In A Hearing before the Senate Committee on the Judiciary 

On 

"The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744" 

Monday, April22, 2013 

Senate Hearing. 8.744. April22. 2013 
295 

I want to thank Chairman Leahy and the members of the Senate Committee on the Judiciary for inviting 

me to testify today. I appreciate the opportunity to share my perspectives on how our immigration policy 

on H1 Band L 1 visas is having significant unintended consequences. 

My name is Neeraj Gupta and I came to America as a graduate student on a student visa, following which 

a Silicon Valley technology company applied for my H 1 B visa and green card. I went on to be the founder 

and CEO of an IT services company that was acquired by an Indian company that was #7 on the 

offshoring leader board. I became a member of the executive team and led global sales and marketing 

with over 80% of our approximately $700M in revenues coming from US customers. More recently, I 

founded a domestic technology services company, a direct result of my experiences in offshore 

outsourcing. I am also a Managing Director of an early stage technology venture fund in Silicon Valley. 

I have been a direct beneficiary of the H1B program. I have also been an executive at an offshore 

company that has leveraged the visa programs effectively, and in my current role, I see the challenges 

our current immigration policy creates for domestic IT services companies and innovative start-ups. As a 

backdrop to my comments, I wish to emphasize that I support the proper use of H-1 B visas as a means to 

attract the best available global talent to the United States. My comments are largely limited to the use of 

visas by the technology services industry. 

In early 2009, in the midst of the great recession and inspired by the wave of hope and change, a group 

of us left the offshore industry to study how we could be a part of a solution that would create American 

jobs in technology services. After having offshored many jobs, primarily helping US enterprises reduce 

their cost of operations, we went on a quest to find a US alternative. 

We knew the key drivers that led to the growth of the offshore industry. The industry had been buoyed by 

the availability and lower-cost of resources, and easy mobility of such resources through the use of H 1 B 

and L 1 visa programs. Global services companies had built a model of efficiency with "centralized 

software factories". The question we posed ourselves was: "Can we build globally competitive technology 

services in the US?" We reviewed key business drivers including the supply of resources, the quality of 

resources, and the economics of building a domestic alternative to offshore companies. We also reviewed 

our policies for high-skilled immigration. 

Economics: Let us first look at the economics. It was clear that the #1 use of H1B and L1 visas was by 

the offshoring industry. The #1 reason why enterprises used offshore programs was for cost reduction 

(under the euphemistic terminology of efficiency). Was there not a direct correlation? How could one miss 

the linkage that the visas are primarily being used for lower costs? It did not matter who the beneficiary of 

these offshoring visas was - a large offshore major headquartered in India or the US or a global services 

major such as IBM or Accenture. It was clear to us that everyone was using the visas for the same 

reason. Lower costs. Economic rationale was driving their decisions. 

The US market is the largest revenue source for offshore vendors. H1 B/L 1 visas allowed them to have 

easy mobility and keep utilization rates high. In the current policy environment, domestic services 

companies faced a huge competitive disadvantage. We know that the first question an Indian business 

asked was: "why do we need to hire an American worker when we can get a cheaper resource from India, 

benched in India at a lower wage, and mobilized on an as-needed basis." 

Senate Hearing, S.744, ApMI22, 2013 
296 

The offshore majors mostly hired H18 employees because the current policy provided them a "subsidy". It 

was clear to us that our policies should change in order that the question that should be asked is "why do 

we need to hire an H1B employee, if we can train and develop a local worker". 

Imagine a scenario, where hiring of an H18 employee had an associated tax of 25% (which could be 

used for training of American workers). If it cost a company 25% higher to hire an H1B employee than a 

local resource, what will the industry do? I am not suggesting taxes but the idea that it needs to be 

fundamentally more expensive to hire an H1B employee than an American worker. If we did that, the 

market forces will lead us to the right outcome. We will adapt quickly, the H 1 B program will move towards 

hiring of specialist resources only, local training and development will get an impetus, and US "software 

factories" will flourish. Most importantly, we would find the answers for the kids that wish to pursue STEM 

careers and give them a clear path forward. We would address the challenge of long-term human capital 

development. 

The current policy approach around determining supply and demand of such skilled resources, 

undertaking market or prevailing wage tests, and determining employer-employee relationships did not 

address the core issue. Putting restrictions on H 1 B dependent employers would only move the offshore 

pie from TCS and Wipro to IBM and Accenture. It would not solve the core issue. The core issue we saw 

was the following: Why would a business hire an American worker if a cheaper local alternative were 

available? We thought to ourselves: why are policy makers creating economic incentives for hiring Indian 

engineers over American kids who can be trained for most roles that H 1 B visas are being used for? Why 

are we not letting market forces handle this and limiting our policy to only addressing the true skills gap 

for the highly specialized? 

Supply: Let me move on to share our findings on the availability of talent. Our most critical finding is that 

there are enough workers with the pre-requisite skills to be trained and developed. Today, all our staff in 

our delivery center in Michigan has been hired locally. We have taken the advantages of centralized 

"software factory" operations with strong training plans. We are convinced that the model of Bangalore 

and Manila can work in the US. We have found strong support from universities- University of Michigan, 

Eastern Michigan University (EMU), and others. 

In our early days in Michigan, a dean at EMU spent extensive time with us as we reviewed his data on the 

drop of enrollment in CS/EE programs that if graphed on a time line was the direct opposite of the growth 

of the Indian offshore industry. His biggest issue in convincing kids to join his programs was his ability to 

show how graduating kids are finding meaningful jobs. It was disheartening to meet various underemployed graduates from these universities. 

We have created a self-fulfilling 'skills scarcity' problem. With an expectation that most of the potential 

technology jobs of the future will be offshore, we see young Americans steadily moving away from 

technical degrees, creating greater pressure on an already weak supply pool. We continue to push for 

more kids to take up careers in STEM, but without a career path for our graduating students, we have 

broken the "chain of long-term human capital development". We cannot expect our workers to 

become technology leaders of tomorrow without having the opportunity for an apprentice role or an entrylevel job. We need to create meaningful and stable jobs for our graduating students. 

The H-1 8 workers employed by organizations with offshore outsourcing as their primary business model 

generally average between 3-8 years of work experience and primarily to sub-contract work for IT 

Senate Hearing, 5.744, April22, 2013 
297 

departments of large US enterprises - banks, insurance companies, telecom operators, etc. Majority of 

this work delivered by H1 8/L 1 staff cannot be considered specialized. This is unlike the work done by 

technology companies such as Google and Microsoft who use these visas to hire engineers for research 

and development; work that can generally be considered specialized. 

We are convinced that the supply of resources for majority of technology services is available in the 

United States. 

Quality: Global enterprises are not entirely satisfied with the quality of work being delivered offshore. 

Research by Rafiq Doss ani at Stanford University illustrates the quality advantage that we have. 

#of Institutions 1$()(1 

4SOK 

84% 

350 

70K 

15% 

Ill% 

15% 

Note that the above chart only shows graduates from four-year engineering schools. In India, engineers 

graduate with a degree even if the quality of education and skills may be so weak that they are 

unemployable. In the US, we are graduating better quality engineers. Also, we have a significant supply 

of resources graduating with associate degrees that can be employed in technology services. 

Senate Hearing, S.744, April22, 2013 4 
298 

Recommendations 

I would recommend that the committee consider taking away the economic incentives for businesses to 

hire H 1 B employees. Here are a few recommendations: 

1. We should address the economic abuse and the associated dis-incentive to hire American 

workers. Location-based wage test should be changed. The goal should be that enterprises feel 

the "pain" of hiring H1B employees. Their total cost of hiring a resource should be at least 125% 

of the highest percentile resource and the 25% surcharge should be used for training and 

development of local resources. Since most services today can be delivered in a distributed 

environment, tying H1 B visas to locations and wage parity in a location is no longer relevant We 

should tie wage rate requirements to national averages. Or even more simply, benchmark it to a 

minimum of $100K in annual wages (excluding graduating MS/Ph.D. students from US 

universities). 

2. We should consider limiting the use of visas for an organization's direct use and eliminate the use 

of these visas for any kind of outsourcing or sub-contract work. Employer-employee relationship 

test should be strengthened to a "sub-contract test" the visas should be for an organization's 

direct use and not to deliver sub-contract work to a client, irrespective of who controls the work. In 

essence, the visas should be used for specialist work such as R&D. We should not have the 

offshore industry take away majority of the visas while innovative product companies cannot meet 

their needs. 

By instituting the above, 3 key things will happen: 

H 1 B visas will be increasingly available for innovation and specialized work. US technology 

companies such as Google and Microsoft will not hit visa caps, as the visas currently being used 

by the offshore industry become available. The H 1 B policy will enable innovative start-ups and 

technology companies rather than feeding the offshoring machine. 

The offshore industry will adapt and invest more heavily in developing, training, and building 

resources in the US. Domestic services models will become more competitive. Enterprises and 

services organizations will drive greater local work-force development 

Visa abuse will be significantly reduced. Only the best and brightest would be hired for direct 

employment and not for sub-contract work. 

In closing 

Our current policy is unfair. It is intended to solve the skills gap. However, it has resulted in a side effect 

of economic abuse. While we could use more specialized talent at the top end, we have the workforce for 

most IT jobs that can be trained and developed. The market will quickly adjust if we did not have H1 8/L 1 

visas available for sub-contract/outsourcing services. How about we challenge the industry by giving them 

as many visas at 125% of the top American wage and let us see how many visas are actually used. Will 

experiments such as ours that focus on training and development of American workers succeed or fall 

under the weight of current policies that give a significant advantage to offshore companies? 

Finally, I would submit to the committee that the policies you institute should truly focus on addressing the 

true gap of highly specialized skills and put a stop to the use of visas by the offshore industry. 

Senate Hearing, 5.744. April22, 2013 
299 

TESTIMONY OF 

FRED BENJAMIN, CHIEF OPERATING OFFICER, 

MEDICALODGES, INC. 

BEFORE THE SENATE JUDICIARY COMMITTEE ON COMPREHENSIVE 

IMMIGRATION REFORM: 

THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S.744 

APRIL 22, 2013 
300 

Good Morning, Chairman Leahy, and distinguished members of the Committee. I'd like to 

thank you for holding this hearing to examine the immigration reform needs of our Country, and 

I especially appreciate the opportunity to appear before you here today. My name is Fred 

Benjamin, and I am the Chief Operating Officer of Medicalodges, Inc., a company that offers a 

continuum of health care options which include independent living, skilled nursing home care, 

rehabilitation, assisted living, specialized care, outpatient therapies, adult day care, in-home 

services, as well as services and living assistance to those with developmental disabilities. 

Medicalodges is a member of the American Health Care Association (AHCA), which is a 

member of the Essential Worker Immigration Coalition (EWIC) - a broad-based national 

coalition of businesses and trade associations concerned about the shortage of semi-skilled and 

unskilled labor. 

The American Health Care Association (AHCA) is the nation's largest association of long-term 

care with more than I 0,000 members that include not-for-profit and proprietary skilled nursing 

facilities, assisted living communities, and facilities for the developmentally disabled. AHCA 

represents over 1.5 million nursing staff, and approximately 1.7 million residents and patients. 

I thank you, Senator Leahy for bringing the immigration reform debate to the forefront. I also 

greatly appreciate the efforts of the "Gang of 8" Senators for their bi-partisan work culminating 

in the introduction on April 17, 2013 of S. 744, The Border Security, Economic Opportunity, and 

Immigration Modernization Act of2013. This bill addresses the major elements of immigration 

reform needed by the business community. Specifically it provides new and revised visa 

programs for skilled and lesser-skilled workers to provide businesses a way to get the workers 

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needed from abroad when U.S. workers are unavailable, a mechanism for the undocumented to 

earn legal status after being screened and paying a penalty, and a new employment verification 

system. 

Medicalodges was launched in 1961 when its first nursing home, Golden Age Lodge, was 

opened in Coffeyville, Kansas by founding owners Mr. and Mrs. S.A. Hann. The company grew 

through the 1960s with the addition of eight nursing facilities. In 1969, Golden Age Lodges was 

renamed Medicalodges, Inc. As new care centers were built or purchased, the company 

expanded its products and services to include a continuum of health care. In February 1998, the 

employees of Medicalodges acquired the company from its previous owners in a 1 00% 

Employee Stock Ownership Trust transaction. Today, the company owns and operates over 30 

facilities with operations in Kansas, Missouri and Oklahoma, and employs over 2200 people in 

the communities it serves. 

I have served as the Company's Chief Operating Officer since May 2009. I am honored to have 

served for 30 years in this industry, which includes senior management roles in skilled and subacute care, hospitals and other for-profit and not-for-profit ventures. I am also currently 

serving as Chairman of the Board of the Kansas Health Care Association, the leading provider 

advocacy group for seniors in Kansas. 

Worker Needs are Critical and The Impact is More Profound in Skilled Nursing Facilities 

We have critical stat1ing needs. There are chronic shortages throughout the nursing home 

industry. If you are in the business of caring for our nation's elderly, whether you are for-profit, 

not-for-profit, or government-managed, it is a daily struggle to find enough dedicated caregivers 

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to care for the people in your charge. Let me tell you a little about the state of nursing homes 

today. 

We are different from other employers in many ways. We are responsible for the lives of 1.5 

million frail and elderly citizens nationwide. And this is the fastest-growing segment of our 

population. 

The general causes of the shortage have been explored. In addition to the causes that affect 

employers of all types, the nursing home industry is confronted with the following: . 

• A newly altered regulatory system that focuses on fines and penalties (often for 

failing to provide adequate personnel) instead of the previous system where 

government employees were encouraged to help centers meet the challenges they 

face. 

• Dramatically increased competition for caregivers from assisted living centers, 

independent housing for the elderly, home care centers and hospital-based nursing 

homes- all of which seek the workers we traditionally employed. 

• Annualized turnover rates of nearly I 00% in our industry among staff personnel, and 

now excessively high turnover rates among our managers, who are increasingly 

frustrated with overwhelming paperwork, regulation, and underfunding. 

• Challenge of caring for infirm and often difficult residents. 

• Mandated training and certification of most employees. 

• Need for dedicated and caring personalities. 

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• Increasing age of workforce because of fewer young workers entering long-term care; 

this means that these young workers are increasingly not choosing long-term care as a 

profession of choice, which is alarming as baby boomers age in greater numbers. 

Underfunding through Medicare and Medicaid, which impacts wages for our workers 

The Role of Caregiver 

Dedicated caregiving staff that work in our facilities every day and every night are the unsung 

heroes of the American workforce. The job of caring for the elderly and disabled is one of the 

most demanding jobs on many levels. 

It is difficult physically to lift, tum, transport, position, and keep up with our residents' care day 

and night. It is psychologically demanding to work with our Alzheimer's residents who are often 

confused, angry, scared, or lonely, and to make their days rewarding and productive. It is 

emotionally draining to care for those in the twilight of their lives, share their frustration and 

fears, and still assure that they are getting the very best medical care we can provide. Their 

needs must come first, and staff must learn to put their own needs second to needs of their 

residents. These are the residents that hospitals cannot care for, whose families cannot care for 

them, and who are dealing with multiple chronic illnesses. 

Our dedicated staff does a very hard job for a wage that is as much as we can pay, but never 

enough, in my opinion, for the service they provide. Without these caregivers, our seniors will 

suffer. 

The shortage of labor and the difficulty in finding adequate levels of staff on a daily basis, 24-

hours each and every day of the year, is cited as the number one reason prompting many of our 

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existing workers to leave our company and seek alternative employment. We Jose some of our 

best managers during this period of time when their skills and compassion are crucially needed. 

Because of the difficulty of the job, and our inability to increase wages or prices, long-term care 

has always been a high turnover industry. My company's turnover rate in lower skilled 

categories is approximately 60% annually - significantly lower than most companies in the 

industry. We do focus on retention initiatives and employee recognition and involvement. We 

have implemented dozens of programs, and empowered our facilities to implement their own 

initiatives. We are active in implementing total quality management techniques successfully 

used by the best companies in America. Indeed, four of our facilities were recently identified by 

US. News and World Report as among the "Best in America." 

Our nursing centers are not factories. We cannot stop the assembly line or reduce the services 

we provide to accommodate budget cuts. The elderly we care for depend on us 24 hours a day, 

every day, weekends and holidays. If we have a staff vacancy, we must fill that vacancy. Ms. 

Johnson will still need help getting dressed and eating in the morning. Mr. Smith will need 

therapy to help him swallow and learn to walk after a stroke. These services are not optional. 

We need certified nurse aides (CNAs), licensed practical nurses (LPNs), and registered nurses 

(RNs) to provide skilled services around the clock in every facility. We provide services in both 

rural and urban locations. Vacancy rates for CNAs can approach 20%; for LPNs and RNs, the 

rate is 10%. 

Addressing the Recruitment Problem 

What has Medicalodges done to address the vacancies and shortages? 

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Historically, I have hired extensively from the welfare rolls. The nursing home industry in 

general has hired over 50,000 welfare recipients in the last three years. Most of them are single 

mothers whom we train to become certified nurse aides, and put on a career path in health care. 

This is the only career path that I know of that can help take people from economically 

disadvantaged situations to the middle class. Unfortunately, all too often they will complete their 

training with us, and then be hired away by hospitals or other providers who do not have to deal 

with our heavy reliance on government-set payment rates. 

• Several states, including Wisconsin and Florida, have taken steps to use federal funds 

to help support training programs specifically targeted on meeting the labor needs of 

the long-term care industry. 

• In our profession, the residents' welfare must be the top priority. Hence, we perform 

criminal background checks on each potential employee. This process significantly 

adds to costs, but eliminates an estimated I 0% of applicants from eligibility for hire, 

and appropriately so. 

• We have offered signing bonuses of$1,500 for certified nursing assistants and even 

higher for licensed personnel. 

• We have set up tables in grocery stores to recruit new employees, sent direct mail, 

posted job openings in communities, schools, and even Laundromats. 

• We offer multiple incentives for recruitment. We have flexible scheduling, good 

benefits, recruitment bonuses, shift difTerentials, float incentives, pay in lieu of 

benefits, and many other programs to attract the dedicated caregivers we need. 

• Every one of my facilities has a substantial recruitment and retention function. We 

make great efforts to reduce turnover and maintain a stable workforce through 

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306 

flexible scheduling, employee appreciation efforts, mentoring programs, and much 

more. We even involve our residents in interviewing candidates. Yet it is still not 

enough. 

Comprehensive Immigration Reform 

Comprehensive immigration reform should be guided by three basic goals. First, America must 

always remain in absolute control of its borders and know who lives within those borders. 

Second, new immigration laws should serve the needs of the U.S. economy. If an 

American employer is offering a job that American citizens arc not willing or available to 

take, we ought to welcome into our country a person who will fill that job - especially a 

job that has the capacity to improve the health and well-being of our seniors and people 

with disabilities. With the high turnover rate for CNAs and personal care workers in some of our 

skilled nursing facilities and assisted living residences, we find it illogical that an administrator 

must send his or her most senior, qualified aide home after just two or three years simply because 

they were born in a foreign country. 

Third, undocumented workers who pay taxes and contribute to our labor needs should be 

given a vehicle to earn legal status. Of course, we should not provide unfair rewards to 

illegal immigrants in the citizenship process, or disadvantage those who came here 

lawfully; however, we must recognize the contributions of these workers and provide 

mechanisms for attaining legal status. 

8 
307 

We cun·ently have a broken immigration system that was created in 1986 after the passage of the 

Immigration Reforn1 and Control Act. We have let our immigration system spin out of control 

over the past 2 decades. That is why AHCA in collaboration with EWIC helped craft the 

business community's basic principles of what comprehensive immigration reform should 

include: 

• Reform should be comprehensive, addressing both future economic needs for 

workers and undocumented workers already in the United States. 

• Refonn should strengthen national security by providing for the screening of 

foreign workers and creating a disincentive for illegal immigration. 

• Reform should strengthen the rule of law by establishing clear, sensible 

immigration laws that are efficiently and vigorously enforced. 

Refonn should create an immigration system that functions efficiently for 

employers, workers, and government agencies. 

• Reform should create a program that allows hard working, tax-paying, 

undocumented workers to earn legal status. 

• Reform should ensure that U.S. workers are not displaced by foreign workers. 

• Refonn should ensure that all workers enjoy the same labor law protections. 

While everyone is still reviewing S. 744, I believe that it captures most of the needs of 

immigration refonn identified above. In particular, the W visa program is designed to allow 

employers to match with qualified foreign nationals. This new nonimmigrant classification for 

non-agricultural lesser skilled foreign workers, while limited in the number of workers permitted 

to enter in any given year, would allow employers to bring W visa holders to the U.S. when U.S. 

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308 

workers cannot be found. It would be valid for 3 years and could be extended in increments of 3 

years. 

Conclusion 

Our labor shortage is our most pressing operating problem. The labor shortage deprives us of the 

most valuable resource we have: our caregivers. If we are to meet the expectations set for us, 

policymakers must act now to expand access to new pools of staff and take steps to encourage 

employment in long-term care. We need to increase staff supply, and there are many talented 

immigrants who are anxious to enter the caregiving field, yet face insurmountable roadblocks. 

These talented caregivers should be given the opportunity to make a living and make a difference 

in their own lives and the lives of others. To increase the supply of labor, please give special 

consideration to permitting new entry for immigrants with nursing skills as well as increasing the 

pool of unskilled labor. We need a new immigration system that serves the economic needs of 

the U.S. economy. If an American employer is offering a job that American citizens are not 

willing to take, we ought to welcome into our country a person who will fill that job- especially 

a job that has the capacity to improve the health and well-being of a vulnerable senior, or a 

person with disabilities. 

We struggle every day to ensure that the labor shortage does not negatively affect the quality of 

care delivered in our facilities. This is a difficult and highly complex balancing act that is 

currently taking place in nursing centers across the country. I urge you to take a broader look at 

this staffing crisis and think about the frail and elderly population we serve - our parents, our 

grandparents, our aunts, our uncles, our neighbors and yours - those special people who have 

given so much to us and our country. We owe it to them to provide the best possible care, don't 

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309 

we? I am here to ask you who will care for them if this critical situation is not addressed 

immediately. I thank the committee for its commitment to resolving this onerous problem in a 

manner that advances ideas and solutions in a straightforward, bipartisan fashion. 

Thank You. I am happy to answer any questions that you may have. 

11 
310 

BRICGE PROJECT 

Statement of 

Maria Gabriela "Gaby" Pacheco 

Immigrant Rights Leader 

Director of Bridge Project 

Before the 

U.S. State Judiciary Committee 

At the hearing entitled 

"UPDATED: The Border Security, Economic Opportunity, and 

Immigration Modernization Act, S.744" 

Presented 

April22, 2013 
311 

Thank you Chairman Leahy, Ranking Member Grasslcy, and 

members of this Committee for giving me the opportunity to testify 

today in support of S. 7 44, the Border Security, Economic 

Opportunity, and Immigration Modernization Act of2013. 

My name is Maria Gabriela "Gaby" Pacheco and I am an 

"undocumented American." I was born in 1985 in Guayaquil, 

Ecuador. In 1993, at the age of eight, I moved to the United States 

with my parents and three siblings. 

Out of everyone who is here testifying today, I am the only one 

that comes to you as one of the I I million undocumented people in 

this country. 

My family reflects the diversity and beauty of America. We arc 

part of a strong working class; a mixed-status family who are your 

neighbors, classmates, fellow parishioners, consumers, and pat1 of 

the fabric of this nation: 

• My father is an ordained Southern Baptist preacher 

who currently works as a window washer. My mom is a 

licensed nurse's aide, but due to health problems she has 

not been able to work the last couple of years. Their hope is 

to continue to support their family while at the same time 

contributing to this country's economic growth. 

• My oldest sister, Erika, is eagerly counting the days 

when she is able to apply for citizenship later this year. She 

is married to a United States citizen and has two United 

States citizen children, Isaac and Eriana. She will be able to 

vote in the next national election. 

• Mari, my second oldest sister, cunently works 

managing a construction company. Although a DREAMer, 

she did not qualify for the Department of Homeland 
312 

Security's new initiative, Defened Action for Childhood 

Anivals (DACA), because she is over the age of thirty. The 

DREAM Act provisions under S.744 will provide her a 

permanent path forward. 

• My younger brother is a proud business owner; he has 

a car washing business. Last month, at the age of twentyseven, because ofDACA he was able to get a driver's 

license and buy his first car. However, DACA is not a 

permanent solution. 

• Last, I am the wife of a Venezuelan of Cuban descent, 

who has lived in the United States for twenty-six years. 

Miraculously last year, after an eighteen-year wait, he was 

able to obtain his Legal Pem1anent Residency. My 

husband's process shows how our immigration system is 

broken, outdated, and desperately in need of modemization. 

My family is not alone. 

In 2009, my friend Felipe Souza Matos, Co-Director of "Get 

Equal," asked me to join him on a joumey and campaign to seek 

immigration reform. In my heart I knew that in order to put an end 

to the separation of families, heal the hurt and pain of our 

communities, and disprove the myths and lies that are told about 

immigrants, we needed to peacefully demonstrate and 

courageously bring to light our (lack of) immigration status. On 

January 1, 2010, with Felipe, Juan Rodriguez (now Juan Souza 

Matos), and Carlos Roa, I began the Trail of Dreams, a 1,500 mile 

walk from Miami to Washington, D.C. 

Through this walk we wanted to show our love for this country, 

which we consider our home. We risked our lives, put everything 

on the line, walked in the cold, and felt the pain in our bodies as 

blisters and callouses formed on our feet. We walked in faith 
313 

knowing that many before us had put their lives at risk to fight for 

freedom, legal refonns, and the American values that this countly 

was founded on and aspires to. 

We did not allow anything to stop us, including the fringe elements 

of American society. We witnessed firsthand how misinformation 

and fear mongering confused people about immigrants. The 

phrasing and images that some use to pmiray people like me, 

undocumented Americans, have created a false perception of who 

we are. It was also during the trail we saw firsthand how fear 

translated into hate. I vividly remember how robes of white, in a 

KKK demonstration, had colored the streets of a small town in 

Georgia. In fact, an event eerily similar to this demonstration just 

took place this past Saturday in Atlanta, Georgia. America's 

history, however, shows that we have been here before and we 

have overcome. 

Since the walk I have carried the stories and dreams of thousands 

of people we met along the way. People working in our fields, 

chicken farms, day laborer centers, homes as domestic workers, 

newspapers as journalists, small businesses as owners, and health 

clinics as doctors. These people are mothers, fathers, children, and 

neighbors. Their dreams are held in the hands of this committee 

and the rest of Congress. Their dreams now lie in the Senate 

bipartisan bill, S. 7 44. 

Legalizing people like me, all 11 million of us, will make the 

United States stronger and will bring about significant economic 

gains in terms of growth, earnings, tax revenues, and jobs. It is 

time to set fear aside and deal with an issue that is affecting an 

entire nation, and doing nothing is no longer acceptable. 

Americans deserve a modernized immigration system. Individuals 

who are citizens in every way except on paper ask for a roadmap to 

citizenship. 
314 

In the words of my good friend, journalist Jose Antonio Vargas, 

who testified in front of this very committee--

• What do you want to do with me? 

• What do you want to do with us? 

With dignity and faith I surrender my talents, passion, and life. I 

ask you to give me, my family, and 11 million of us an opportunity 

to fully integrate and achieve our American Dream. 
315 

A COMMONSENSE SOLUTION FOR IMMIGRATION 

REFORM MUST BE ENACTED THIS YEAR 

Presented at 

"The Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744'' 

Submitted to 

U.S. Senate Judiciary Committee 

Submitted by 

Janet Murguia 

President and CEO 

National Council of La Raza 

April22, 2013 
316 

2 

Chairman Leahy and Ranking Member Grassley, thank you for holding this hearing on 

immigration reform legislation. 1 appreciate the opportunity to appear again before the 

Committee on this critically important issue to the Latino community. 

I am the President and CEO of the National Council of La Raza (NCLR), the largest national 

Hispanic civil rights and advocacy organization in the United States, an American institution 

recognized in the book Forces for Good as one of the highest impact nonprofits in the nation. 

We represent some 300 Affiliates-local, community-based organizations in 41 states, the 

District of Columbia, and Puerto Rico--that provide education, health, housing, workforce 

development, and other services to millions of Americans and immigrants annually. 

NCLR has a long legacy of engaging in immigration, evidenced through our work in the 

Hispanic community and in Washington, DC. We helped shape the Immigration Reform and 

Control Act of 1986, the Immigration Act of 1990 to preserve family-based immigration, and the 

Nicaraguan Adjustment and Central American Relief Act (NACARA). We also led four 

successful efforts to restore safety net systems that promote immigrant integration. We have 

worked with Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush 

to achieve the best results possible for our community and for the country. We know that 

working with both parties is the only way to get things done. 

Fixing our broken immigration system is in the best interest of our country. That is why it is so 

important to acknowledge the work of the bipartisan group of senators who last week reached a 

critically important breakthrough in the push for immigration reform with the introduction of S. 

744, the "Border Security, Economic Opportunity, and Immigration Modernization Act of 

2013 ." The distinguished senators who worked on this bill have shown extraordinary 

perseverance, thoughtfulness and courage in their months-long effort to bring about a solution to 

a national concern too long neglected. Their unity and ability to work together to find common 

ground in the face of an increasingly polarized political atmosphere should be a model for 

addressing our country's challenges. Senate bill 744 is a significant milestone and presents a 

historic opportunity to deliver a commonsense solution for the country this year. 

As I noted in my previous testimony, NCLR's principles for immigration reform are very clear 

that refonn should (I) restore the rule oflaw by creating a road map to legalization and 

citizenship for the II million aspiring Americans, and include smart enforcement that improves 

safety, supports legal immigration channels, and prevents discrimination; (2) preserve the rule of 

law by creating workable legal immigration channels that reunite families, strengthen our 

economy, and protect workers' rights; and (3) strengthen the fabric of our society by adopting 

proactive measures that advance the successful integration of new immigrants. While Senate bill 

744 is not perfect, it has provisions that will give our country the tools to achieve a 21st Century 

immigration system--{)ne that helps ensure immigration to the United States is orderly and legal, 

promotes economic growth, sustains our families, and protects workers and honest employers, if 

it is implemented in a way that is consistent with our nation's values. 

NCLR 
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3 

The Time is Now 

There are three potent threads aligning that make this moment different and the opportunity for 

reform stronger: the moral, economic, and political imperatives for immigration reform. 

• The moral imperative for reform has been made clear for years, with a wide ranging set of 

organizations raising awareness about the untold damage our broken immigration system has 

had on immigrants and families, a plight that found its most potent symbol recently in the 

courageous activism of DREAMers. And the magnitude of that devastation is much larger, 

as the lives and fate of immigrants are fundamentally interwoven with those of citizens and 

impacts how those who are deemed to be immigrants are treated. 

• The economic imperative for reform has been gaining strength particularly in the last couple 

of years, with the consequences of deportation policies, state anti-immigrant laws, and an 

outdated legal immigration system, affecting more industries. Simultaneously, more and 

more studies show the economic benefit to our country of implementing legalization, 

promoting citizenship, and bringing in the best and brightest talent from around the globe. 

• Election Day made the political imperative crystal clear. Adding to the strong participation 

by African American voters, according to the exit polls, Asian American and Pacific Islander 

voters were 3% of the electorate and Latinos were 10%. Latinos were decisive in Nevada, 

Colorado, and Florida, and an essential part of the winning coalition in places like 

Pennsylvania and Wisconsin, as were Asian American voters in Minnesota and Virginia. 

These three imperatives, and the conditions that created them, have brought together the multisector voices and constituencies on the left and right of the debate necessary to help immigration 

reform become a reality. We understand that failure to achieve reform will mean a continued 

erosion of the family unit, working rights, community wellbeing, and civil rights protections that 

start with the vulnerable undocumented community and reverberate well beyond. For example, 

hundreds ofthousands of U.S. citizens and lawful permanent residents have been separated from 

family members. This is untenable. We can do better, and have an opportunity to do so. The 

time to take action is now. 

A Road map to Citizenship 

Our country places a high regard on the successful integration of immigrants into the socioeconomic fabric of the nation. And we must remember that the American public puts a special 

premium on citizenship, because citizenship signifies fully embracing our country and accepting 

the contract that all of our ancestors at some point made: to be fully American. The American 

people want to sec immigrants all in-not partially in, not in a special status, but in the same boat 

as everyone else. 

We believe Senate bill 744 recognizes the importance of that process of integration, and seeks to 

strike a balance that can reflect our national principles and priorities. And it also recognizes the 

fact that, if we are serious about restoring the rule oflaw, it is essential that we acknowledge that 

no healthy society can tolerate the existence of a subclass of people outside the scope and 

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4 

protection of the law. Those living in the shadows are easily exploited by employers, thus 

lowering the wages and labor standards for all workers and undercutting businesses that play by 

the rules. They are afraid to report crimes that they may experience or witness, undermining 

public safety. 

ln addition, the lives of undocumented immigrants arc inextricably linked with ours. Most of 

them are long-term U.S. residents; they work hard, pay taxes, and otherwise abide by our laws. 

They provide for U.S. citizen spouses and children; they are our fellow churchgoers and 

children's playmates. Some of them came to this country as children, and this is the only 

country they know and consider home. Many have contributed to the revitalization of the cities 

where they live, and are providing the services the aging Baby Boom generation requires. 

The notion that we are going to hunt down and deport II million people is a fantasy, and one the 

American public neither buys nor supports. So the question then is, what do we do? The 

majority of Americans support an earned legalization with a roadmap to citizenship as an 

essential component of immigration reform-and Senate bill 744 offers that possibility. 

It is a steep road, one that includes some conditions many civil rights and social justice 

organizations, including my own, have concerns about. But we are willing to give our support to 

Senate bill 744, as we pledge to improve it, because we know that the interests of our country are 

best served by creating that roadmap to legality and to citizenship for this population of 

immigrants, just like there was for every other group of immigrants before them. We know this 

road map can also help us prevent having a subclass of workers who are expected to support the 

rest of us in our pursuit of the American Dream without having access to it themselves. 

With implementation in mind. we do want to express our concern to the Committee that the 

process of moving from unlawful status to potential citizenship may be too long and too costly 

for many who have been working and raising families in the U.S. lt is also a significant concern 

that as these individuals move forward through the legalization process, they will not only be 

assessed multiple fees and fines, they will be required to pay taxes to fund critical services that 

ensure health, well-being and productivity without having access to them. As NCLR has 

testified, the ultimate goal of any public benefits system should be to provide the support that 

enables American families-including immigrant families-to become self-sustaining. However, 

the irony in the treatment of immigrants under S. 744 is that the rules in place may actually make 

it harder for them to do so. 

The benefits to our country of allowing these immigrants to earn legalization are significant, both 

economically and socially. No longer could unscrupulous employers pit undocumented workers 

against other workers. Legalization is also the only way to reduce the ability of unscrupulous 

employers from exploiting them or threatening to deport them for reporting labor law violations, 

thereby endangering wages and working conditions for all workers. 

And bringing stability through earned legality to this population would mean opportunity for 

deepening roots, as well as higher earnings and therefore higher tax revenue-which studies 

have estimated would add billions of dollars just in the next I 0 years alone. Legalized 

immigrants would be able to invest and spend more as they would be able to work towards their 

dreams-starting a business, buying a home for their families, helping their children succeed. 

NCLR 
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5 

In short, the legislation proposes a tough but reachable path for those who are willing to 

contribute and be vested in the future of our country. It should be noted that the success not just 

of the legalization program, but of reform itself, will be determined by how many undocumented 

immigrants who are law-abiding aside from their immigration status, are able to go through the 

process. lfthc legalization program is made more difficult, or imposes conditions designed to 

prevent people :tTom applying, or provisions that exclude people with a legitimate claim, then 

reform will fail to achieve restoration of the rule oflaw, one of its fundamental goals. 

Family Unity 

Keeping families together and strong is a core principle and a fundamental value of American 

life. In every religion, in every culture, in every wave of immigrants that have come to this 

country, the family unit has been critical both to the survival of immigrants in a strange land, and 

to their success in adapting and contributing to their newly adopted nation. It also promotes the 

economic stability of immigrants and their integration into our country, and we must continue 

our historic commitment to this idea. 

We are glad that the bipartisan legislation seeks to address the unnecessary separation of families 

who are kept apart by extraordinarily long wait times for certain family visas. Millions of close 

family members of U.S. citizens and permanent residents are stuck waiting outside the U.S. for 

visas to become available; many wait for more than two decades. It is also important to 

remember that the family is not only a social unit, but a powerful economic engine. Close 

relatives are able to make vital contributions to the U.S. economy as productive workers and 

entrepreneurs. By clearing out the backlogs in the family and employment based categories and 

removing the limitation on the number of visas that are requested by legal permanent residents 

who apply for their spouses and minor children, the legislation would help promote the economic 

stability of immigrant families and their integration into our country. 

Unfortunately, there are also provisions in the legislation that weaken our country's historic 

commitment to family unity. This proposal eliminates the ability of U.S. citizens to petition for 

their siblings and reduces the ability of U.S. citizens to petition for their adult married children 

who are more than 30 years old. Maintaining a commitment to "family values" requires the 

recognition that a rapidly changing society and economy requires an equally dynamic definition 

of family. Families in our country today come in all shapes and sizes and include not only 

siblings pooling their resources together to buy a home or start a business but also adult children 

taking care of their elderly parents. And it is ironic that same sex couples increasingly have been 

gaining appropriate recognition in our society, except in our immigration law. 

Future Flow of Workers 

Unlike previous immigration reforms, which have tightened enforcement but failed to establish 

effective legal avenues that respond to the needs of our economy and protect the American 

workforce, this bill has a series of provisions offering the opportunity for future workers to 

eventually pursue legal permanent residency and then citizenship. This is the best way to 

prevent the nation from having another debate in the future about legalizing yet another group of 

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6 

workers who live and work unlawfully in the U.S. It is imperative that our legal immigration 

system keep pace with our economy and our changing society. 

As such, the sponsors of the bipartisan senate bill took into account the needs of both our country 

and its workers, from the fields all the way to Silicon Valley, by providing multiple ways for 

immigrant workers to enter the U.S. through safe and legal channels to meet legitimate 

workforce needs across sectors of our economy. The proposed legislation includes provisions 

that are complex and need further analysis. However, it appears it would create a 21" century 

process intended to be responsive to U.S. labor needs in a regulated, orderly fashion-while 

breaking precedent by providing labor rights and protections. We strongly believe that 

immigrant workers should have the same rights and responsibilities as other U.S. workers, 

including whistleblower protections and back-pay owed to them for their labor. 

Immigrant Integration 

Americans hold immigrant integration in high regard and want to see immigrants pledge 

allegiance to our country. So we are very pleased to see that the bipartisan legislation also 

includes many measures designed to achieve the successful integration of immigrants into 

American society. Tts provisions would help enhance social cohesion among neighbors and 

coworkers in communities across the United States. The legislation would prohibit the use of 

race and ethnicity in federal law enforcement activities and requires data collection and new 

regulations to ensure a prohibition of racial profiling is implemented effectively. It also 

establishes an Otlice of New Americans, a New Americans taskforce and includes additional 

initiatives to help immigrants learn English, American civics and integrate into local 

communities. From financial counseling to English and civics courses, there is a dramatic need 

1or increased resources and collaboration across government agencies to achieve the full 

integration of immigrants. And immigrants want to learn English and make greater contributions 

to the nation-! know it, because my organization and our hundreds of Affiliates help 

immigrants on this journey every day of the week. We applaud the effort to strengthen that 

process. The sponsors of this legislation recognize that, as in the tum of the 20th century, the 

integration of immigrants needs to be accelerated by both the public and private sectors and it 

funds a public-private partnership to acquire the skills needed to work and integrate into the 

economic and social mainstream. 

Conclusion 

I want to reiterate that Senate Bill 744 provides you an incredible opportunity to restore and 

preserve the rule oflaw, and to do so in a way that honors our country's values and strengthens 

our economy. 

We acknowledge that compromises will have to be made by all parties. Significant concessions 

have already been made in this legislation, many that cut deeply into the interests of the Hispanic 

community. If each of us was looking at only individual pieces ofthis bill from our own 

parochial perspective, there is much we would be forced to oppose. But just as we are asking 

others to set aside some of their preferences to advance our nation's interests, we recognize that 

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7 

all of us have to accept some compromises to advance our common goal of producing a bill that 

reflects a strong, effective, and sustainable immigration policy for the 21" Century. 

A bright line will soon emerge between those who seek to preserve a status quo, which serves no 

one except those who profit from a broken system, and those who are working in good faith to 

reach compromise and deliver a solution the country desperately needs. Put in stark terms, those 

who oppose progress are not just advocates for doing nothing, in essence, they are advocating for 

worse than nothing. Opponents of progress are supporting the continued existence of a subclass 

of II million people living outside the scope and protection of the law and an enforcement 

regime that separates families, turns a blind eye to racial profiling and the detention and even 

deportation of U.S. citizens and lawful residents. They would do nothing to address the growing 

gap between on the one hand, the family values of a 21st century society and the economic needs 

of a 21" Century economy and on the other, a legal immigration system that has remained 

unchanged for nearly three decades. They are opposing improved labor law enforcement, 

leveling the field for American workers, and laying the foundation for the accelerated integration 

oftoday's immigrants and those yet to arrive. In short, they offer the same feeble failed policies 

that may advance their political interests but don't produce real results, or they hold out for 

dystopian ends that cannot be achieved. 

This bright line will be burnt indelibly in the minds of Latino voters. Those who created the 

game-changing moment for this debate in November, and the additional 14.4 million U.S. born 

and raised prospective Hispanic voters that will join the electorate between now and 2028. Our 

community will be engaged and watching closely to ensure that the legalization process is real, 

enforcement is accountable, and families and workers are protected. 

NCLR 
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Testimony of 

Dr. David Fleming, 

Senior Pastor Champion Forest Baptist Church 

Senate Judiciary Committee 

"The Border Security, Economic Opportunity, 

and Immigration Modernization Act, S.744" 

April 22, 2013 

Chainnan Leahy, Ranking Member Grassley and distinguished Members of the Judiciary 

Committee: Good afternoon and thank you for the opportunity to participate in this process as 

you work towards a bipartisan solution to our nation's current immigration crisis. 

As a Pastor, I got involved in this debate as a result of my everyday responsibilities. My personal 

encounters with hurting people compelled me to work towards improving a system that isn't 

working. It isn't working for a young father with children back home, for a widow and mother of 

two teenagers born here, for a family who has done everything to come legally but is still caught 

in a system that is neither just nor fair. and is certainly not compassionate. 

Determined to make a difference for these and so many others, I've spoken to law enforcement 

officials, immigration attorneys and government officials at every leveL Everyone agrees on the 

magnitude of the problem, from rampant crime along the border, to human trafficking across our 

borders, to broken homes and families on all sides of our borders. 

But when it comes to proposed soluti<.ms, they have mostly come from one oftwo opposite poles. 

One side calls for what sounds like open borders and amnesty with little regard for the rule of 

law or our national security. The other side demands closed borders and mass deportations with 

little regard for human dignity, and at the expense of our national identity. With such strong and 

opposing forces, we've heard plenty of rhetoric but seen no workable solutions. 

In the midst of this contusion, I've wondered what God has to say. I read in Romans !3 ... "Let 

every person be subject to the governing authorities. For there is no authority except from God, 

and those that exist have been instituted by God. Therefore whoever resists the authorities resists 

what God has appointed, and those who resist will incur judgment." God is a God of order, our 

nation must be a nation of Jaw, and our laws must be just. 

I also read in Leviticus 19 ... "When a stranger sojourns with you in your land, you shall not do 

him wrong. You shall treat the stranger who sojourns with you as the native among you, and you 

shall love him as yourself, for you were strangers in the land of Egypt. .. " God is just, but he also 

expects us to treat one another with compassion, each having been created in His image. 

In Matthew 25, we read about those who stood before the Lord and were invited into His 

Kingdom. They fed the hungry, gave something to drink to the thirsty, welcomed the stranger, 
323 

clothed the naked, and visited the sick and imprisoned. In the words of Jesus: 'Truly, I say to 

you, as you did it to one of the least of these my brothers, you did it to me.' 

So which is it, justice or compassion? The answer is: Yes! There is balance in the tension 

between the two. We are to be guided in all we do to protect the value and dignity of human life, 

and to alleviate human suffering wherever and whenever we can. And we must have laws and a 

legal system that enables us to live out those values in a way that is just and fair. 

I recognize not everyone shares my convictions, but I want you to know that there are many who 

do. I am but one local church Pastor, but I have the privilege to stand with thousands of other 

Pastors and leaders from across the country, who represent a growing tide of support for and 

demand for a bipartisan effort and a comprehensive approach to immigration reform. 

In my city, the Houston Area Pastors Council wrote a Declaration on Immigration Reform and 

more than I ,000 Pastors representing the great diversity of Houston signed on. As a Southern 

Baptist, I rejoiced as our Convention with 45,000 churches and 16 million members, passed a 

resolution in 2011 with overwhelming support, calling for just and humane public policy with 

regard to immigration. And most recently a national coalition of Christian denominations and 

organizations known as the Evangelical Immigration Table, with thousands of Christian leaders 

representing millions of members, calling for bipattisan comprehensive refonn that: 

Respects the God-given dignity of every person 

Protects the unity of the immediate family 

Respects the rule of law 

Guarantees secure national borders 

Ensures fairness to taxpayers 

Establishes a path toward legal status and/or citizenship for those who qualifY 

and who wish to become permanent residents 

That is why I was pleased to see the introduction ofS. 744, The Border Security, Economic 

Opportunity and Immigration Modernization Act. While this bill may not be perfect, it appears to 

be an excellent starting point for bipartisan discussion that moves this debate forward toward real 

solutions that work in the real world and for real people. 

In a passionate debate with opposing views, some of us are called to speak for those who cannot 

speak for themselves. In the end I will stand before The Lord and give an account for my actions. 

It will be clear whether or not I cared about what God cares about, and whether or not I did what 

I was supposed to do, not because it was popular with men, but because it was right with God. 

I am calling on you ... our leaders, who no doubt share my sense of calling, and swore an oath 

under God, and I believe will also give an account before God who has given you authority. I 

urge you, don't waste this opportunity lo do the right thing, under God and for the sake of 

millions ofpeople ... come together and give us a comprehensive solution that works. 

Thank you again for giving me this opportunity, and please know that we support you and that 

we are praying for you as you work through this bill and as you resolve this immigration crisis. 
324 

S 744: Amnesty before enforcement 

Statement of Mark Krikorian 

Executive Director of the Center for Immigration Studies 

Before the Senate Committee on the Judiciary 

April 22, 2013 

There may be circumstances under which an amnesty for certain illegal aliens would make sense. Given 

the pervasive and deliberate non-enforcement of the immigration laws for so many years, and the 

resulting large population of illegal aliens, one could make a case for clearing the decks, as it were, and 

making a fresh start. This would be a distasteful proposition, to be sure, given that virtually all illegal 

aliens are guilty of multiple felonies, among them identity theft, document fraud, tax evasion, and 

perjury. Nonetheless, for practical reasons conferring legal status on established, non-violent illegal 

aliens may weJJ, at some point, be a policy option worth discussing. 

But only after the problem that allowed the mass settlement of illegal aliens has been addressed. 

5 744 takes the opposite approach. It legalizes the iJJegal population before the necessary tools are in 

place to avoid the development of yet another large illegal population. As such, it paves the way for yet 

more demands for amnesty a decade or so in the future, as those who entered in, say 2015, are so wellestablished by 2023 that we will be told that we have to permit them to stay as well. 

What's more, the legalization provisions of the bill make widespread fraud very likely. 
325 

Much has been made of the so-called triggers in Sec. 3 that would permit the Registered Provisional 

Immigrants (RPI) to receive permanent residence. Tying the green card to achievement of these 

benchmarks which include an employment authorization system for all employers, biographical exit 

tracking at airports and seaports, and substantial completion of two border strategies- is presented as a 

guarantee that this scenario of serial amnesties would not happen. Unfortunately, those triggers are, in 

a very real sense, beside the point. 

The other triggers mentioned in Sec. 3 -those allowing the granting of the initial RPI status- are the 

submission by the Department of Homeland security of two plans: A "Comprehensive Southern Border 

Security Strategy" and a "Southern Border Fencing Strategy". Since similar plans have been frequently 

offered over the years, this isn't much of a hurdle. 

And yet it's the only hurdle that matters because receipt of Registered Provisional Immigrant status is 

the amnesty- that is to say, it represents the transformation of the illegal alien into a person who is 

lawfully admitted to the United States. 

RPI status brings with it work authorization, a legitimate Social Security account, driver's license, travel 

documents- in effect, Green Card Lite. It is only the upgrade of this status to that of lawful permanent 

resident Green Card Premium, if you will- that is on hold until the enforcement benchmarks are 

satisfied. But the political and bureaucratic incentives to press for the achievement of those 

enforcement benchmarks are blunted by the fact that the amnesty has already happened. With people 

"out of the shadows" and no longer "undocumented", the urgency to meet enforcement deadlines 
326 

would evaporate, especially in the face of determined opposition to enforcement by business and civil 

liberties groups. 

To use an analogy, if you're flying to the West Coast, it doesn't ultimately matter whether you're in 

coach or first class- your destination is the same. By the same token, whether or not the beneficiary of 

the RPI amnesty is upgraded to a green card, the destination is the same- the ability to live and work in 

the United States. An upgrade from coach to first class may actually be more consequential than the 

upgrade from RPI to permanent residence; while the former results in wider seats and free drinks, all a 

green card offers that RPI status does not is the right to apply for citizenship, something most recipients 

of green cards from the I RCA amnesty had not done a quarter century after the enactment of the law. 

And many of those who receive the RPI amnesty are likely to do so fraudulently. Reading Sec. 2101 

harkens back to the 1986 Immigration Reform and Control Act's Special Agricultural Worker program, 

which the New York Times called "one of the most extensive immigration frauds ever perpetrated 

against the United States Government". The Justice Department's Office of Inspector General described 

it this way: 

To be eligible for adjustment of status under the SAW provisions, the applicant had to prove 

with documentation that he or she had worked in an agricultural enterprise in the United States 

for 90 days in each calendar year from 1984 through 1986, or for 90 days between May 1985 

and May 1986. The evidence of having engaged in such work, INS employees believed, was 

often forged and sold to undocumented individuals seeking U.S. residency. Given the crush of 

applications under the program and the relative fewer investigative resources, INS approved 

applications absent explicit proof that they were in fact fraudulent. 
327 

("An Investigation of the Immigration and Naturalization Service's Citizenship USA Initiative", USDoJ DIG, 

July 2000, http://www.justice.gov/oig/special/0007/listpdf.htm, p. 72; emphasis added) 

When Sec. 2101 of S 744 is considered in this light, the sources of fraud become apparent: 

If I RCA created a "crush" of applications when only 3 million people applied, what should we call 

the workload that DHS will face when triple the number of people - at least -apply for the RPI 

amnesty? The administrative capacity does not exist to handle this properly, which all but 

guarantees that most applications will be rubber-stamped by overwhelmed DHS staff. 

The bill says DHS "may interview", not "shall interview", applicants for the RPI amnesty. Given 

the aforementioned crush, it is unlikely many will be interviewed. In fact, the current DACA 

amnesty (Deferred Action for Childhood Arrivals) is a good model for how the administration 

would manageS 744's amnesty provisions. DACA processing is almost entirely paper-based, with 

few interviews, resulting in the approval of 99.5 percent of applications. And yet the number of 

cases so far decided amounts to perhaps one-fiftieth the number likely to apply for the RPI 

amnesty. 

S 744 allows affidavits by non-relatives regarding the work or education history of RPI amnesty 

applicants. Fraudulent affidavits were common among I RCA applicants, with some small farmers 

claiming to have employed hundreds of illegal-alien farmworkers. The temptation to fraud will 

be great in any program giving away something as valuable as the RPI amnesty, but the ability to 

investigate fraudulent affidavits will be extremely limited given the millions of applicants. And 

there is no realistic level of fees or penalties that could raise enough money to hire enough staff 

to follow up on questionable affidavits. They will be approved, as in the 1980s, absent specific 

proof that they're fraudulent. 
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The current bill also contains a confidentiality clause, prohibiting the use of any information 

provided by illegal alien applicants for other purposes. This means illegal aliens with little 

likelihood of approval are free to apply and try their luck, knowing that there's no downside, and 

a significant upside. 

As a corollary to this, there is no requirement that rejected applicants be immediately taken into 

custody and deported. In fact, the bill specifically says that failure to qualify does not require 

DHS to commence removal proceedings. Again, unqualified applicants would have nothing to 

lose in applying, in the hope that they could fall through the cracks and get approved, something 

certain to happen to a significant number of people. 

As an additional incentive to fraudulent applicants, S 744 provides de facto work authorization 

to those merely applying for the RPI amnesty, pending the adjudication of the application. 

Application alone also forestalls removal, making a frivolous application an attractive option for 

illegal aliens with no chance at amnesty. 

We don't have to speculate about the consequences of such widespread fraud. Mahmoud "The Red" 

Abouhalima was an Egyptian illegal alien driving a cab in New York when he fraudulently - and 

successfully - applied for amnesty as a farmworker. This legal status allowed him to travel to 

Afghanistan for terrorist training, which he put to use in the first World Trade Center attack in 1993. 

A co-conspirator, Mohammed Salameh, also applied for the 1986 amnesty but was, remarkably, turned 

down. But since that amnesty, like the one in S 744, did not mandate the removal of failed applicants, 

Salameh was able to remain and assist in the 1993 bombing. 

S 744 thus places amnesty before enforcement, and ensures an amnesty process that would reward 

fraud. A better approach would be to make the initial legalization dependent on the bill's enforcement 
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provisions, rather than a future upgrade in status. The enforcement provisions themselves would have 

to be strengthened by requiring, for instance, biometric exit-tracking at all ports of entry, not just 

airports and seaports - as it already required in current law and as was recommended by the 9/11 

Commission. Another trigger for initial legalization would have to be an explicit statement by Congress 

that states and localities are not preempted from en forcing civil immigration law. 

And any future amnesty would need to be constructed differently. Not only should all lies, however 

small, be punished with criminal prosecution, but the amnesty might best be conducted piecemeal, 

rather than addressing millions of people effectively all at once. That is to say, candidates might be 

considered as they are apprehended for traffic stops or factory raids or what have you, with those who 

fail to qualify be removed. 

Thank you for the opportunity to speak on this important matter and I look forward to any questions 

you might have. 
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Testimony of Laura Lichter 

President, American Immigration Lawyers Association 

Submitted to the 

Committee on the Judiciary ofthe U.S. Senate 

Hearing of April22, 2013 

"The Border Security, Economic Opportunity, 

and Immigration Modernization Act, S.744" 

I am Laura Lichter, national president of the American Immigration Lawyers 

Association ("A!LA"), and founder and managing parmer of Lichter Immigration, a 

Denver-based law fum. AILA is the national association of immigration lawyers 

established to promote justice and advocate for fair and reasonable immigration law 

and policy. AILA has more than 12,500 attorney and law professor members. 

For nearly two decades, my immigration practice has focused on complex removal, family 

and naturalization issues, their related administmtive appeals, and related litigation at the 

Fedemllevel. I have been an elected member of A!LA's national leadership for over a 

decade and previously served as the association's top liaison to the key inunigmtion 

enforcement bureaus of the Department of Homeland Security and Department of Justice, 

including Inunigmtion and Customs Enforcement (ICE) and the Executive Office of 

Innnigration Review (EOlR). In 2011, I was appointed by DHS to serve alongside other 

key stakeholders on the Homeland Security Advismy Council Task Force assessing the 

agency's Secure Conunnnities program. 

I am honored to testify on this subject at a time when ovetwhelming numbers of 

Americans support i11111ligration reform. National polls show more than 80 percent 

support for granting citizenship to the 11 million people who are without status in the 

U.S. AILA is encouraged by actions already taken in Congress and commends the 

creativity and perseverance of the eight Senate leaders who introduced the "Border 

Security, Economic Opportunity, and lnunigration Modemization Act." This bill 

presents a solid framework to ftx our broken immigration system and match our laws 

to the needs and realities ofthe 21" century. 

My testimony will focus on: (I) the importance of ensuring that our immigration laws 

support and sustain families, including same sex families; (2) the need to protect 

refugees and asylum seekers; and (3) the critical value of reforms that will preserve 

due process and maintain the integrity ofthe inunigration system. 
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1 Ensuring Family Unity in the Immigration System 

Families stand at the center of our American values. Understanding the value of strong families 

means that keeping them united is a core national interest. Thus, family unification has long 

been the cornerstone of our legal immigration system. 

Current immigration policy, as codified in the Immigration and Nationality Act (INA), reflects 

those values, but has been undermined by unreasonable and unnecessary backlogs that result in 

years-long separation of families, not to mention a confounding set of roadblocks that often 

block or completely bar the path for these very immigrants who have ties to our communities. A 

properly working family-based immigration system is foundational to ensure that future 

generations of immigrants continue to maintain family as a core value of our country. 

Family-based immigration is about more than advancing fundamental American values. When 

working properly, family immigration policies further America's economic and social interests, 

as well. Oftentimes, immigrants who arrive through the family-based system have valuable skills 

or are business innovators themselves. Moreover, studies have shown that close family 

relationships facilitate entrepreneurship because family members can support caring for children 

and working in family-owned busincsses. 1 

A popular misconception about the immigration system is that family members who would like 

to immigrate can simply get into a line to obtain a visa, and then quickly get a green card. This is 

the furthest thing from the truth. Apart from parents, spouses and unmarried minor children of 

U.S. citizens, close family members of citizens and legal permanent residents are forced to 

navigate extremely long delays in the visa application process due to the insufficiency of the 

numbers of visas available per year-numbers which were last adjusted by Congress a 

generation ago. 

For example, a U.S. citizen parent typically has to wait about seven years to bring an adult child. 

Due to limits on per country admissions, an adult child from Mexico will wait nearly two 

decades. Brothers and sisters of U.S. citizens just now eligible to apply for status started the 

process about a dozen years ago, and if the sibling is coming from the Philippines, the minimum 

wait would have been more than two decades. For families stuck in these artificial backlogs, 

important life events whose passing we might take for granted-a college graduation, the birth of 

a grandchild, a sister's achievement of a lifelong dream, a brother's bout with cancer-are at best 

a major struggle to be a part of, and most often are missed altogether. 

Senate Bill 744 makes several improvements to the legal immigration system that will strengthen 

families. Recognizing their unique bonds, the bill re-classifies the children and spouses of lawful 

permanent residents as "immediate relatives." This allows them to immediately qualifY for a 

visa, while the existing system keeps them apart from their spouses and children for two years or 

more. The drafters also recognized that many visas that Congress authorized by statute have 

gone and continue to go unused every year solely because of bureaucratic delays. As a result 

1 Chad Moutray. (2009). LOOKING AHEAD: OPPORTUNITIES AND CHALLENGES FOR 

ENTREPRENEURSHIP AND SMALL BUSINESS OWNERS, 31 W. New Eng. L. Rev. 763 

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those visas are pem1anently lost even though there are people who are waiting in backlogs for 

those visas. The bill ensures iliat visas will not be lost. Another important change is the 

"widows and orphans" provision, which allows an orphan, a widow, or a widower to immigrate 

even if ilie petitioning parent or spouse dies before the application process is completed. 

Unfortunately, S. 744 also includes provisions that would restrict or eliminate existing family 

categories that enable U.S. citizens to bring siblings or married adult children, also known as the 

third and fourth family preferences. We are concerned iliat the "merit-based" point system fails 

to provide sufficient opportunity for those close family members to immigrate, and may 

significantly disadvantage women, who are more likely to work in the home or in the informal 

labor market. AILA urges Congress to ensure U.S. citizens can continue to directly petition for 

their siblings and married adult children. 

In many families the ties that hold together siblings or elderly parents and adult children are as 

strong as the bonds of marriage or of parent and child. Siblings and adult sons and daughters are 

in some cases the closest family to a U.S. citizen or lawful permanent resident. 

Eliminating or restricting these family-based immigration categories would tear apart families 

and foster social isolation and discoMection. Furthermore, adult children and siblings have been 

shown to have a direct impact on immigrant entrepreneurship. They help build family-owned 

businesses. They also provide critical care for elderly parents and minor children. 

America benefits the most when the family- and employment-based systems are each working 

effectively. A well-functioning family-based system strengthens ilie employment-based system 

by allowing workers to maintain their family units in the U.S. Less family-friendly policies may 

dissuade high-skilled immigrants who also have families, from choosing to invest their talents 

and resources in America's economy. This is particularly true as LGBT relationships find more 

acceptance globally, and American companies must be able to offer same an immigration path 

that includes the entire family. Our immigration system must be flexible and capable of meeting 

the needs of both American businesses and families. 

Family Case Example: Lauren 

Lauren, a 21-year old British citizen, came to the U.S. at age 4. Her grandparents had immigrated 

to the U.S. earlier in 1983 to farm. After an accident where Lauren's grandmother had a stroke 

and lost her leg, her parents, Ian and Allison, brought their family to the U.S. in 1995. The 

parents arrived on an E-2 visa to manage a motel and restaurant. 

Lauren's grandparents became U.S. citizens, and in September 2003, her grandmother filed a 

petition for Lauren's mom as an adult married child of a U.S. citizen (Family Third category). 

(The employment-based system for permanent residence is decidedly hostile to business owners, 

making ilie family-based system Lauren's parents' only option.) Lauren was a derivative on that 

petition. Because of the wait on the Family Third (F3) category, the family is still waiting for 

visas to be available that would allow iliem to become lawful permanent residents. From March 

2013 to April2013, the F3 category will only inch forward one week from July 15,2002 to July 

22, 2002. At that rate, it is expected to take five more years to reach their place in the queue. 

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Lauren's parents' E-2 visa status is only temporary, and E status holders live in constant fear 

that, at the next renewal point, their extension will be denied. And when Lauren turned 21, she 

was no longer covered under her parents' current nonimmigrant visa- and was left without a 

status. Furthennorc, she may soon "age-out" of the F3 family-based petition filed in 2003, and 

the Child Status Protection Act likely does not provide enough protection to save her from aging 

out. The only reason that Lauren is still here is that she was granted deferred action in 2012, 

allowing her to stay in the U.S. temporarily. She is currently pursuing dance in New York. 

Outside of the extraordinary relief of deferred action there are few options for Lauren to remain 

with her family. If Lauren ages out, she does not keep her place in line with a different petition. 

When her parents finally get permanent resident status, either could file a new petition for 

Lauren as the adult child of a pem1anent resident (F2B). But Lauren would have to start her wait 

over again (and would risk being again disqualified if she marries). The wait in the F2B category 

means that Lauren could wait another decade or longer to get her green card. 

Under S.744, Lauren and her mother should be able to complete their petition process. But in the 

future, anyone in their situation would be permanently separated because Lauren's mother was 

over 30 years old when the petition was filed. 

Family Case Example: "N" 

N is the daughter ofM and J, from Thailand. After immigrating to the U.S. in the 1990's based 

on M's skill as a traditional Thai chef, M and J opened their own Thai restaurant. In 2002, they 

filed a petition for their adult daughter, N, to immigrate and join them. N was over the age of 21 

when M and .T immigrated initially and, therefore, could not accompany them to the U.S. forM's 

job. 

By the time the petition on N's behalf was approved in 2005, the "priority date" in the category 

for an unmarried daughter of a lawful permanent resident was backlogged to 1995. M and J 

considered naturalizing, but between the demands of running their own restaurant and the high 

cost of the application fees, did not do so until2010. 

In 2009, however, N decided to get married. As a married daughter of permanent residents, her 

parents' immigrant petitions on her behalf became immediately void, and she lost her place in 

the immigrant visa quota backlog, with no credit for any of the five years she had been waiting in 

the backlog. 

M and J have now become U.S. citizens and have re-filed immigrant petitions for their married 

daughter, but their priority date of January 2013 is in a category that is backlogged to July of 

2002, meaning that it will be at least a decade or more before their daughter can join them. 

Under S. 744, N herself will be able to obtain her green card. But once S. 744 is implemented 

anyone in her situation -as a married child over age 30-would be unable to obtain permanent 

residence. 

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Family Case Example: Sudhir 

Sudhir is a 44 year old Indian national who is developmentally disabled, and has an IQ of 40. 

Sudhir has always lived with his parents who continue to care for him as if he were a young 

child. Sudhir is a friendly, docile, and curious person with a strong sense of imagination. 

Sudhir and his elderly parents, Raj and Mohan, entered the U.S. in lawful nonimmigrant status in 

May 2012. Sudhir has a brother, Dinesh, who is a permanent resident on the verge of citizenship 

and a U.S. citizen sister, Anjali, who has been here for about 14 years and who has 3 U.S. citizen 

children. Both siblings are married to U.S. citizens and are physicians. Raj and Mohan's age and 

poor health make it vital that they have the support ofDinesh and Anjali. 

Anjali has filed an immediate relative petition for her parents, and a family-based fourth 

preference petition for her brother Sudhir. As the parents of an adult U.S. citizen, visa numbers 

are immediately available for Raj and Mohan and they have applied for permanent residency and 

expect to have their green cards soon. lfowever, because of the long wait in the quota for 

siblings, it will take approximately twelve years before Sudhir will be able to obtain permanent 

residency based on his sister's petition. 

It is simply impossible for Sudhir to wait twelve years outside of the U.S. without his family. He 

requires assistance with everyday tasks oflife, including shaving, bathing, and dressing. Sudhir 

requires constant care and cannot be on his own for even one day, much less twelve years. He 

cannot live on his own, and would be subject to physical abuse and exploitation in his home 

country because of his disability. Raj and Mohan's own poor health prevents their return to 

India, and in addition, the family has no relatives in India who can help care for Sudhir. 

While a twelve-year wait is untenable, no option at all would be devastating to a family like this. 

Track two of the merit-based system inS. 744 preserves Sudhir's chances, but the thousands of 

other Sudhirs who are not fortunate enough to already be the beneficiary of a petition on file 

would be left with nowhere to tum. 

Family Case Example: Nadine 

Nadine, originally from Trinidad, came to the U.S. on a student visa in August 1988. She 

completed a graduate degree and was sponsored for an H-IB visa and later, a green card. In 

1998, Nadine became a naturalized citizen. 

Though their dad was deceased and their mother was fighting cancer, Nadine's brother was a 

determined university student. Nadine worked long hours in the U.S. and tried to support her 

brother and her mother from afar. In February 2006, the family decided that the siblings needed 

to be together, and Nadine filed a sibling petition (I-130) for the brother, who was 23 years old at 

the time. Their mother passed away in 2007. 

Right now, green cards are available to brothers and sisters of U.S. citizens who began the 

process in April of2001, five years before Nadine began the process for her brother. To date, a 

visa has not been made available and, during the almost decade-long wait, Nadine's brother 

finished a bachelor's degree. 

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At age 30, he is currently residing in Barbados, where he attended college and remained after 

graduation. Nadine and her brother are very close, and given the age difference between them, 

Nadine has always helped to take care of him. In the past six years, Nadiue and her brother have 

buried their mother, grandmother, and stepfather -it has been a difficult time for them to be 

apart. They maintain weekly contact through phone calls, Skype, or Facebook. Modem 

technology has helped them keep their bond, but it is no substitute for actual presence. 

Under S.744, Nadine's brother would eventually be able to get his green card under the meritbased track two, because he already is in the queue. But families like theirs would remain 

permanently apart in the future under S. 744 due to the repeal of the family-based fourth 

preference. 

Under current law, gay or lesbian U.S. citizens or residents cannot sponsor their foreign-born 

same-sex partners, forcing couples to either live abroad or be separated. Similarly, same-sex 

partners of immigrants sponsored by U.S. employers are not included in petitions for either 

nonimmigrant visas or permanent residence. U.S. immigration law does not recognize same-sex 

relationships, no matter how long same-sex partners have been together or how committed their 

relationship. According to a UCLA study of the 20 I 0 Census, more than 36,000 couples are 

affected by this form of discrimination, and nearly half of them are households raising children. 

Many gay and lesbian Americans in binational relationships have aging parents and must make 

difficult decisions between managing their parents' health or remaining with their partners. The 

median age for Americans in these families is 38 years old. These are mature, committed 

relationships between couples who have established productive lives within the U.S. These 

individuals and families are a valuable asset to the market and a resource that businesses want to 

retain. Many Fortune 500 companies have lost skilled Americans to foreign competitors because 

of this issue. 

In my practice alone, we advise couples facing these very difficult issues on nearly a weekly 

basis. For many, the limited options mean having to choose between unconscionable separation, 

a life without lawful immigration status, or relocating the entire family outside the U.S. 

Same-Sex Family Case Example: Susanne and Mary 

Susanne, a German citizen, always wanted to be a teacher. While pursuing her Ph.D. in Gennan 

language and literature at U.C. Davis, she met and fell in love with Mary, a U.S. citizen. On 

October 25, 2008, with their families and friends present, Susanne and Mary married iu the back 

garden of their home. 

Susanne is currently employed as a part-time lecturer at City College of San Francisco (CCSF), 

teaching German language and culture to a cross section of college-aged and older students. In 

addition to her teaching, Susanne was chosen to act as the CCSF cultural liaison for a group of 

German students from Hochschule Fresenius, a private university in Cologne that is seeking a 

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long term partnership with CCSF. Every semester, Susanne exposes these students to American 

culture, history and ideas. 

Susanne donates much of her time to CCSF by giving free tutorials to her students, arriving at 

class early and staying late to help with homework assignments, and organizing German-themed 

cultural events for students. She often partners with the Goethe Institut in their cultural events in 

San Francisco and has students over to the home that she shares with Mary, where she introduces 

them to German cuisine and music. 

The mix of Susanne's teaching, volunteer work and cultural liaison activities makes her a vital 

part ofCCSF, a beloved institution in San Francisco. A measure of how important CCSF is to 

the economic and cultural life of the city is the fact that voters recently and overwhelmingly 

approved a parcel tax to keep CCSF open. CCSF is a true jewel in a city that is known for its 

rich heritage. 

Mary is an attorney who has owned her own small law firm in San Francisco for fifteen years. 

Mary was named Best Lawyers 2012 Lawyer of the Year in White Collar Criminal 

Defense in San Francisco. In addition to her practice, she and her firm are deeply involved in 

the local community, volunteering time to the local federal court. Mary has spent almost a 

quarter of a century building her career as a lawyer. If the laws do not change to allow aU .S. 

citizen to sponsor the non-U.S. citizen spouse/partner on an equal footing with traditionallymarried couples, Mary will have to leave the country, abandoning her business and causing great 

disruption to her law partner and employees. This would result in at least some of the employees 

losing their jobs. It would also spell a major financial loss for both Susanne and Mary. 

Susanne is present in the U.S. on an academic H-lB visa, which expires in early August, and she 

has been on this visa for almost six years, the maximum duration. Due to the school's financial 

situation, she does not have any possibility of obtaining a different visa via her employer, CCSF. 

Like most married couples, Susanne and Mary share everything. They have been married for 

four and a half years and jointly own a house, bank accounts, a car, life insurance, long-term 

disability insurance, retirement plans, health insurance. In short, they are completely intertwined 

financially, as well as emotionally. If forced to leave the U.S., all of those things would have to 

be abandoned, sold off or liquidated, with tax penalties for the liquidation of retirement accounts. 

They would lose their major source of income with the loss of Mary's law firm income, and 

would suffer the termination of such financial safeguards as long tem1 care policies that have 

been paid into for two decades and that are invalid outside of the U.S. 

There is also the huge cost of Mary's having to find a new way to make a living. Because 

Germany does not follow the common law system, Mary would have to start over in a field 

outside of the law and in a language that is not her native one. The emotional toll of being 

forced to leave would be even greater. Mary has lived her entire adult life in San Francisco and 

has deep ties to the community in the form of friends, her business and employees and the home 

that she shares with Susmme. For her, leaving the country amounts to being forced into exile. 

Susanne has spent thirteen years in the U.S., first as a Ph.D. student and, for the past six years, as 

a lecturer giving her energy and talents to her students. Simply put, Susanne and Mary have 

built a life together that is rooted in their home and community of San Francisco. There is no 

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valid reason to treat them, or LGBT couples like them, differently from every other committed 

couple in the country. 

1!1. PROTECTING REFUGEES AND ASYLUM SEEKERS 

The United States has a long history and tradition of protecting victims of persecution and 

torture. The United States is a leader in refugee resettlement and humanitarian protection, and 

annually resettles thousands of refugees. Since 1975 refugee admissions to the United States 

have totaled more than 3 million people. Welcoming those fleeing persecution is a deeply rooted 

American value that has defined our country since its founding. 

Our nation's immigration laws and practices, however, too often fall short in protecting refugees 

and asylum seekers. For example, many asylum seekers are detained upon their arrival in the 

U.S. In fact, my very first case was a young Somali man who on arrival was detained for 

months, without bond, waiting for his case to be heard. Arbitrary or harsh rules often prevent 

bona fide asylum seekers from seeking, much less obtaining the protection they desperately 

need. AILA has long supported reforms to ensure refugees and asylum seekers are protected by 

the United States, including those embodied in the proposed Refugee Protection Act of2013. 

AILA is pleased that S. 744 includes several provisions that would improve U.S. refugee and 

asylum law, increase efficiency in processing, and protect refugees, asylum seekers and stateless 

persons. Senate Bill 744 eliminates the one-year filing deadline for asylum applications and 

allows those previously denied asylum because of the deadline the opportunity to reopen their 

cases. Eliminating the deadline also makes the asylum system more efficient. Currently, the 

filing deadline leads to the unnecessary expenditure of governn1ent resources by pushing the 

claims of credible refugees into the overburdened immigration courts, diverting limited time and 

resources that could be more efficiently allocated to assessing the actual merits of asylum 

applications. Further, because effective anti-fraud measures already exist in the adjudications 

process, the filing deadline is not needed to counter abuse in the system. 

Senate Bill 744 also gives expert, trained asylum officers the authority to review an asylum claim 

after credible fear is shown by an individual seeking entry into the U.S., rather than referring 

asylum seekers to a judge for lengthy and costly court proceedings. This approach was 

recommended by the bipartisan U.S. Commission on International Religious Freedom. This 

simple, commonsense change in process should result in increased efficiency and cost savings by 

helping to ease the immigration court backlog, clear busy court dockets, and prevent prolonged 

and costly detention of bona fide asylees. It also will help decrease the psychological strain on 

individuals who already have been traumatized by their experiences in their home countries. 

Senate Bill 744 also includes a provision allowing certain refugee children to join their parents in 

the United States and provides protections for the surviving relatives ofrefugees. Gaps in 

current law can lead to the permanent separation of vulnerable families. The bill extends and 

improves the Iraqi and Afghan Special Immigrant Visa program, establishes protections for 

stateless persons, and enables the designation special groups of humanitarian concern as eligible 

for resettlement, including religious minorities from Iran. Finally, S. 7.44 encourages the 

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successful integration of both refugees into their receiving communities through the creation of 

an Office of Citizenship and New Americans and initiatives that would provide elderly refugees 

with greater access to naturalization. 

AILA strongly supports these reforms included inS. 744 that would improve the lives of asylum 

seekers, refugees, and the U.S. communities that welcome them, all while making the system 

more efficient and cost-effective. 

Asylum Case Example: Mr. N 

A citizen of Venezuela, Mr. N, along with his wife and children, arrived in the United States in 

June 2002. An opponent of the Chavez regime, and supportive of his brother who was "out" as 

being homosexual, Mr. N was the victim of repeated threats in Venezuela because of his 

opinions on the regime and his brother's sexuality. Indeed, his brother has been granted asylum 

in the U.S. because of these threats. 

Admitted under a visitor's visa, Mr. N tried hard to maintain a lawful status in the U.S. 

Unfortunately, he received bad legal advice, and rather than seeking asylum, pursued extensions 

of his visitor's status and a petition for another nonimmigrant status for which he was ineligible. 

He applied for asylum in 2006. Because he had missed the one-year filing deadline, his case was 

referred to an inunigration judge. Plagued by ineffective assistance of counsel (his then-attorney 

has since been disbarred), Mr. N's case has traveled the judicial system over for years, and is 

now administratively closed before the immigration courts, pending visa availability through a 

petition filed by his parents. 

What should have been a simple case had a trained asylum officer been able to review the merits 

has become a costly and trying ordeal for the system and theN family alike. Senate Bill 744 's 

repeal of the one-year filing deadline would have prevented this situation. 

Asylum case example: Ms. P 

Ms. Pis the married mother of two from Nepal. From an early age, she experienced pervasive 

discrimination, beatings and attempts on her life because of her gender and commitment to 

women's rights. In addition to the "normal" discrimination she suffered as a child and young 

wife, Ms. P was subjected to beatings by her in-laws and forced to live in the family's livestock 

pen after she gave birth to a female child. Eventually, Ms. P decided that she would try to 

improve the lives of women and girls, and sought out training on birth control, sexually 

transmitted diseases and sex trafficking. 

In her travels as a community educator, Ms. P was subject to threats and harassment for her 

attempts to inform women of their rights and how to care for and protect themselves. 

Eventually, her outspokenness on the perils of sex trafficking brought her to the attention of both 

the local officials and Maoist rebels who were profiting from the trade. Facing attacks on her life 

and her family, Ms. P fled to the United States. 

Traumatized and uncertain about her rights, Ms. P did not understand that she could apply for 

asylum nor know that there was a time limit. After a few years in the U.S., she presented her 

case for asylum but was told that the officer would have to deny her case, simply because she 

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was applying after one year. The case was referred to an immigration judge, and after several 

years of waiting, Ms. P was able to establish that she met a much higher standard than that 

required for asylum-that she was more likely than not to suffer persecution if returned to 

Nepal--and was granted withholding of removal. 

While the story should have ended there, it did not. Unlike an individual granted asylum, Ms. P 

could not bring her daughter to the U.S. and withholding did not provide a path to permanent 

residence. In fact, for several years, immigration authorities hounded her to make arrangements 

to leave the U.S. for a third country, all simply because she did not file her case within one year 

of arrival. 

IV. UPHOLDING FAIRNESS AND DUE PROCESS IN AMERICA'S lMM!~~TION SYSTE!\! 

AILA's mission is "to promote justice, to advocate for fair and reasonable immigration law and 

policy, [and] to advance the quality ofinunigration and nationality law and practice." These 

principles infonn AILA 's belief that America's immigration laws and the enforcement of our 

laws should uphold civil and human rights and ensure due process, equal treatment, and fairness. 

AILA urges Congress to improve the integrity of the immigration judicial system by ensuring 

that immigration judges have the resources and authority to give thorough and fair review for 

each case and thereby deliver just outcomes for every person who appears before them. In 

addition, immigration legislation should reduce the use of institutional detention, ensure that all 

persons in removal proceedings are represented by counsel, and re-establish the primacy of the 

federal government in the enforcement of immigration law. 

The Immigration Court System 

Ensuring the due process rights of immigrants in removal proceedings is of the utmost 

importance. The immigration court system, however, is struggling to meet the demands of 

rapidly increasing caseloads. As of March 2013---despite an aggressive attempt by Immigration 

and Customs Enforcement to review cases on the docket for discretionary closure----there were 

327,483 immigration cases pending in a lengthy backlog where the average number of days 

cases have been waiting has reached 555 days. 2 

Each inunigration judge handles, on average, over a thousand cases per year. High caseloads 

and lack of adequate financial and other resources have resulted in overworked judges and staff, 

compromising the system's ability to assure proper review of every case. Court statistics show 

that the grant rates for cases are highly disparate among judges, thus giving rise to criticism that 

outcomes may tum on who or which court is deciding the case, rather than on established 

principles and rules oflaw. Such disparities have made the immigration judiciary vulnerable to 

perceptions that its ranks are biased and lacking in professionalism. 

Immigration reform must address these serious problems with the immigration judicial system or 

risk eroding the fundamental principles of due process and rule of law. In this regard, AILA is 

2 !Jttp:/:trac.svr .ed.!:'Ji:!bptool~/immi Qration/coun backlof!../ 

h~.m./.!\r~.c: syr. e.fl -~~~Y!J.?tS!lC\.\·~l!J'.li I. 1 3 0.4.1..1 Jnml 

10 
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pleased that S. 744 adds immigration judges, law clerks, legal assistants, and appellate review 

staff to clear the backlog in immigration court and facilitate better adjudication of cases. The bill 

also codifies the existence of the Board of Immigration Appeals and requires the BIA to issue 

written decisions, thereby improving the transparency and thoroughness of review in appellate 

cases. 

Access to Legal Coun!eJ 

The high numbers of respondents appearing in proceedings without counsel is a major 

contributing factor to the large backlog of cases before the immigration courts. The Executive 

Office ofimmigration Review (EOIR) has stated that "[n]on-represented cases are more difficult 

to conduct. They require far more effort on the part of the judge."3 If noncitizens lack lawyers, 

immigration judges must guide them through the proceedings, often through an interpreter. Even 

at that, a Judge, of course, cannot function as counsel for a noncitizen in proceedings, and 

valuable information which might impact a case may never come to light, thereby necessitating 

appeals and motions to reopen in order to avoid a miscarriage of justice. Judges frequently 

continue cases to give noncitizens time to seek counsel, or repeated reset a case to allow a 

noncitizen to attempt navigate the complex immigration system on his or her own. 

The Administrative Conference of the United States recently advised that "funding legal 

representation for ... non-citizens in removal proceedings, especially those in detention, will 

produce efficiencies and net cost savings."4 The American Bar Association also concluded that 

in immigration courts "[t]he lack of adequate representation diminishes the prospects of fair 

adjudication for the noncitizen, delays and raises the costs of proceedings, calls into question the 

fairness of a convoluted and complicated process, and exposes noncitizens to the risk of abuse 

and exploitation by 'immigration consultants' and 'notarios."'5 

The tremendous cost savings to the government oflegal education and services programs has 

been demonstrated by EOIR's Legal Orientation Program (LOP), which provides general 

information to immigration detainees about the immigration law and the court system. 

According to a 2012 EOIR report to the Senate Committee on Appropriations, LOP reduced case 

processing times by an average of 12 days when compared to individuals who did not receive 

LOP.6 Using an average cost per bed day of$112.83/ EOIR's analysis determined that LOP led 

3 Charles H. Kuck, Legal Assistancefhr Asylum Seekers in Expedited Removal: A Survey o_f Alternative Practices 

(Dec. 2004), 8, available at l)J~p//'\'_!Y~:-~.-~s:irL_g9~1Jl.~.£esl~t.Qr:.!.~?.lJ?9.f!a~y1um_se~k.~I:.~.~I~g9:JAssis_tpsJ_f 4 Administrative Conference Recommendation 2012-3: Immigration Removal Adjudication (adopted June 15, 

20 12), 3, available at !J.!!J!: i/wv.-rw .<'lcus.~ov/wp-c0_!l~~BJ/uploadsldQ_'c\'}}J9adsif_912-.. l9_§!~3-ecommel~.g-~tl~~--20 12-3-

.bnm i grat ion-R emo~:9-J: l\9il.J11i cat i OD ._pQf 5 American Bar Association Commission on Immigration, RefOrming the Immigration S . .l'~'ltem.· Proposals to 

Promote Independence, Fairness. Efficiency, and Professionalism in the Adjudication of Removal Cases. (20 10), 5-

8. 

6 The April4, 2012 EOIR report was transmitted on July 2, 2012 by the Department of Justice to the Chairwoman 

and Ranking Member of the Senate Committee on Appropriations' Subcommittee on Commerce, Justice, Science, 

and Related Agencies pursuant to the requirements of the Conference Report accompanying the Consolidated and 

Further Continuing Appropriations Act, 2012 (P.L. 112-55). The report was reviewed by the Office of Management 

and Budget before being transmitted to Congress, and OMB did not object to its transmittal. 

11 
341 

to $677 in detention cost savings for each LOP participant in Fiscal Year 2011. In the aggregate 

in FY 2011, LOP saved the federal government, specifically Immigration and Customs 

Enforcement (ICE), more than $19.9 million. After deducting the cost of providing the services 

(which cost approximately $70 per participant), the net savings to the government in FY 20 II 

were more than $17.8 million. Attorney General Holder described LOP's incremental assistance 

as a "great success story" and a ''critical tool for saving precious taxpayer dollars" based on its 

cost savings to both DOJ's immigration courts and the Department of Homeland Security's 

(DHS) immigration detention system.8 

Despite the success and cost savings delivered by LOP, the program serves adult detainees at 

only 25 of the approximately 250 detention facilities used by ICE. The LOP program should be 

expanded nationwide. This would increase the cost savings, improve efficiencies, and lead to 

more just outcomes in immigration comis. 

The Senate bill would improve the LOP program by codifying the existing Office of Legal 

Access Programs and ensure that Legal Orientation Programs were administered to detainees 

within five days of arriving in custody, as well as provide services to detained immigrants in 

proceedings. 

In addition to legal orientation programs, having immigration counsel represent individuals in 

immigration court proceedings directly correlates to successful outcomes for noncitizens 

pursuing claims to relief ranging from persecution abroad or family separation from U.S. citizen 

relatives. Asylum seekers who have legal representation, for example, are three times as likely 

to be granted asylum.9 Whether a person is represented by an immigration attorney is the "single 

most important factor" affecting the result in an asylum case. 10 

A pilot project providing legal representation to asylum seekers found that the rate at which 

asylum seekers retracted their claims rose by 50 percent, and the number of claims resulting in 

successful outcomes also increased significantly. 11 Overall, "[t]he two most important variables 

7 Once DHS personnel and administrative costs are included, the total cost of detention is $164 per person per day. 

National Immigration Forum, The Math a,( Immigration Detention (Aug. 2012), 2, available at 

.h!ffi:/iw,vw.innpigrationfor~1_:.()rg/imagesfuploacfs/I\·1athoflmn"!igr9-tioi}R_etention.p_Ll_f Using the current of 

detention, the net annual savings to the government from the LOP are more than $25 million. 8 Attorney General Eric Holder Addresses the Pro Bono Institute (Mar. 19, 2010); see also Vera Institute of Justice. 

"Lega1 Orientation Program: Evaluation and Perfom1ance and Outcome Measurement Report, Phase II." (May 

2008), available at ll!IQ2\\'\\'\\',us.<JQi.gov/eoir/n:p_Qit;;;LOPE,al!J.atjQn-finaLpdf 9 Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison. (2009), 8, available at 

bttp://v,'.Y(\Y.JlJ...!t:!l<mrigh!1ifi!:_-?"t.9.00.9L'Q9_Q::l~2_:Re_-hrf:.{!_~ylum-detcigign-smn-doc.pdf In a September 2008 report, 

the Government Accountability Office found the likelihood of an asylum claim being granted by an Immigration 

Judge increased significantly for those who had representation. GAO, US. Asylum System: Significant Variation 

Existed in Asylum Outcomes across Immigration Courts and Judges, 30, GA0-08-940 (Sept. 2008), available at 

b!!~\~~v.gao.gov/lJ~-~.i!~!I!~~·:9.mi2tQJ29f 

10 Jaya Ramji-Nogales, Andrew Schoenholtz & Philip Schrag, Re.fogee Roulette: Disparities in Asylum 

Adjudication, 60 Stan. L. Rev. 295,340-41 (2007). 11 Nimrod Pitsker. "Due Process for All: Applying Eldridge to Require Appointed Counsel for Asylum Seekers." 95 

CaLL. Rev. 169 (2007). 

12 
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affecting the ability to secure a successful outcome in a case ... are having representation and 

being free from detention." 12 

The absence of court-appointed counsel in immigration court is especially damaging for 

vulnerable populations such as juveniles and immigrants with mental disabilities. Through the 

enactment of the Unaccompanied Alien Child Protection Act and the Trafficking Victims 

Protection Act, Congress has recognized the vulnerability of unaccompanied youth and that they 

are unlikely to grasp the nature and consequences of immigration court removal proceedings. To 

ensure the needs of children and youth are protected, Congress has directed EOIR and the 

Department of Health and Human Services to provide legal orientation services for the released 

children's caregivers. A guarantee oflegal representation for this population is absolutely 

essential to ensure fairness in the immigration system. 

Those with mental disabilities are no less vulnerable when confronting the complexities of the 

immigration court system. A 2010 report concluded that U.S. citizens with mental disabilities 

have been erroneously placed into ICE custody, and that "an unknown number oflegal 

permanent residents (LPRs) and asylum seekers with a lawful basis for remaining in the United 

States may have been unfairly deported from the country because their mental disabilities made 

it impossible for them to effectively present their claims in court." 13 A 2011 report by the DHS 

Office oflnspcctor General concurred that"[ s ]ome detainees are seriously impaired by mental 

illness and may be unable to coexist with others in detention or participate in immigration 

proceedings." In 20 I 0 two individuals with mental disabilities "lost" in ICE custody were 

identified in immigration detention after they had been forgotten for more than four years, 

without ever being given a single bond hcaring. 14 Their cases were closed because they were 

incompetent and without counsel to understand proceedings. Incarceration for someone with a 

mental disability is estimated to cost seven times the averagc. 15 Legal representation is vital to 

ensure that immigration courts serve immigrants with mental disabilities and other vulnerable 

populations, including juveniles, fairly and efficiently. 

Importantly, S.744 gives the Attorney General authority to appoint counsel and ensures that for 

unaccompanied minors, individuals with serious mental disabilities, and other particularly 

vulnerable populations will be represented by counsel. 

12 New York Immigrant Representation Study, Accessing Justice: The Availability and Adequacy of Counsel in 

Immigration Proceedings (Dec. 2011 ), available at 

hH.Ql~:..!~~-m:Q_Q~J:DB_~J~'j~~~_Qm/cQ_IJ_tent!denovo/NYIRS Report.pdf; see also Donald Kerwin, Revisiting the 

Need for Appointed Counsel (Migration Policy Institute, 2005). 13 Deportation by Default (Human Rights Watch/ACLU, July 2010), 4, available at 

hl.!Jl.;/twww .hrw .org/cn/reports/20 l 0/07:'26/deportation-d_~J~1..L1)1_:_0 14 "Immigration Officials Announce Release of Detainees with Mental Disabilities Who Were Lost in Detention for 

Years:' (Mar. 31, 201 0), available at ~.'/w'A:v,'.aclu-s.f_:_~-~le~~~~~~~jt;\_vfl9~.0 17 15 Texas Appleseed, Justice for Immigration ·s Hidden Population: Protecting the Rights of' Persons with Mental 

Disabilities in the Immigration Court and Detention System (Mar. 20 l 0), 17 (quoting Sen. Russell Feingold), 

available at h_Up_;f{wy~:w. texasapp les~e~~· net/lmJ ~x ·Ph.l?.?.9P.il.9.1T:::.£.Q!!L9.PS.DJflD.& !<!-?~~5iQ_LQQ\~J!.l.9_qf,J. ~.gi.9 . .:=-~JJ. 

13 
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Resj_oring Judicial Discretion 

The revisions to immigration law enacted in the 1996 Illegal Immigration Reform and Immigrant 

Responsibility Act (IIRAIRA) restricted the authority and jurisdiction of immigration courts to 

review removal charges involving many categories of noncitizens. First, Congress widened the 

scope of summary administrative removal procedures, thereby authorizing DHS to bypass 

normal removal proceedings before an immigration judge for many noncitizens including those 

with minor or old criminal convictions. Second, for those noncitizens who do make it into 

proceedings before an immigration judge, Congress expanded the number and scope of grounds 

for removal while it limited the opportunities for noncitizens to offer evidence of extenuating 

circumstances or compelling equities. The impact ofiiRAIRA was to categorically deny certain 

noncitizens- including long-time lawful permanent residents (LPRs) the opportunity to plead 

their cases to an immigration judge before they are deported. 

Judicial authority to engage in a careful consideration of the specific facts in each case has been 

curtailed. In its place, immigration officers-essentially, the prosecutors-have been 

empowered to act as judge and jury, with no meaningful independent oversight. Federal courts 

have been stripped of the authority to review most discretionary determinations made by these 

officers. The system as it currently operates is neither equitable nor fair. Every noncitizen 

should have the opportunity to go before a neutral adjudicator for an individualized, fact-based 

determination before the extraordinary consequence of deportation is imposed. 

Congress can restore fairness and flexibility to our system by expanding the authority of 

immigration judges to consider an individual's unique circumstances and make case-by-case 

assessments before deportation. Senate Bill 744 restores limited authority to immigration judges 

to review the specific facts in an individual case and grant relief where family unity would be 

served. The bill recognizes the value of keeping families together especially in cases where a 

U.S. citizen or lawful permanent resident would be separated from their family. The bill 

expands access to U visas and removes arbitrary, harsh barriers to asylum relief. AILA supports 

these and other reforms included in S. 744 that restore judicial discretion to grant relief. 

But even if S. 744 were enacted, judges would still exercise very limited authority to review the 

circumstances each individual case to determine whether to grant relief. Some forms of relief, 

such as Cancellation of Removal have very high standards, for example requiring a showing of 

"extreme hardship" or "exceptional and extremely unusual hardship." It is critical that judges 

have the discretion to consider the facts presented by both parties and then to grant relief based 

on merit. The people in the following examples involving clients currently represented by AILA 

members would not be eligible for relief if S. 744 became law. 

Case Example: Janelle Ngo Chin 

Janelle Ngo Chin has lived in the U.S. for over 25 years, since she was 10 years old. She 

attended elementary, middle, and high school here. She now has three U.S. citizen children. Her 

only criminal history is a single minor conviction 17 years ago- when at age 19 she was 

convicted for petty theft, but served no jail time. 

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As the mother of three and common-law wife to a hardworking noncitizen with Temporary 

Protected Status (TPS), Janelle now also takes care of her aging and ailing parents (who are both 

lawful permanent residents), who live with her. Her father has already had two heart attacks and 

suffers from coronary heart disease and many other health problems that interfere with his ability 

to accomplish everyday tasks. Janelle's mother has diabetes, a history of cancer, and debilitating 

psychological problems. All of this was thoroughly documented before the immigration judge, 

when Janelle was placed in removal proceedings. She requested cancellation of removal, asking 

the judge to exercise his discretion and allow her to stay in the U.S. with her family. 

The immigration judge denied Janelle's request for discretion, finding that her evidence of 

hardship, though compelling, was insufficient to meet the incredibly high "exceptional and 

extremely unusual hardship" standard required by the statute. She appealed the judge's decision, 

but lost. Then her circumstances got much worse. Her parents' health deteriorated, additional 

familial assistance evaporated, and her children were suffering at school. She asked DIIS to 

exercise Prosecutorial Discretion (PD) to choose not to deport her, given that she is not a high 

priority for enforcement and has compelling equities. Unfortunately, DHS felt that Janelle's case 

did not merit PD. Finally, an appeals court intervened. Janelle is now back before the 

immigration judge, trying desperately to make her case for discretionary relief from deportation. 

Senate Bill 744 docs not change the criteria for eligibility for Cancellation of Removal, the form 

of relief that Janelle applied for. IfS. 744 were enacted, she would still need to meet the very 

high standard of"exceptional and extremely unusual hardship." 

Case Example: Brenda Gutierrez 

Brenda Gutierrez is the mother of three children. Two of her children are U.S. citizens and the 

third recently qualified for a temporary reprieve from deportation through Deferred Action for 

Childhood Arrivals (DACA). One of her U.S. citizen children has a rare blood disorder that 

requires constant medical attention. Ms. Gutierrez and her husband, Jose, have both been trained 

by their doctors to give their child injections when needed. 

Mr. Gutierrez is a lawful permanent resident after having been granted Cancellation of Removal. 

Ms. Gutierrez was not so fortunate. Many years ago, shortly after she arrived in the U.S., she 

came out of the shadows to apply for asylum but missed the tight statutory deadline. The 

government immediately tried to deport her and issued a charging document. She then renewed 

her asylum claim before the courts and appealed her denial, but that was ultimately unsuccessful. 

That charging document, issued so many years ago, now disqualifies Ms. Gutierrez for the same 

discretionary relief her husband had received. None of the equities she accumulated over the 

many years she has been living in the U.S. since that document was issued- even with no 

criminal history whatsoever·· can even be considered by the judge. ICE finally granted her a 

temporary stay of removal that may be renewed, at ICE's discretion, each year. But she never 

knows whether this year will be the year ICE decides to deport her. She lives in fear of being 

torn apart from her family and the child who needs her. 

If S. 744 were enacted, Brenda would still be unable to obtain her green card because S. 744 

would not change the rule that rendered her unable to apply for Cancellation of Removal. 

15 
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Categorical Bars_and Detention Statute~ Result in UJ!fairness and Injustice 

The category of "aggravated felonies" was introduced into the immigration law in 1988, and 

encompassed murder and trafficking in drugs or weapons. However, the roster of offenses that 

are considered aggravated felonies was expanded tremendously with the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA) and with IIRAIRA. Now, even some 

misdemeanors fall within the statutory definition of"aggravated felony." 

An alien who has been convicted of a crime categorized as an "aggravated felony" must be 

detained and is deportable and ineligible for any form of relief from deportation. These stringent 

requirements restrict a judge's ability to look at the totality of circumstances in a case and grant 

appropriate relief. Tying the hands of immigration judges by denying them the ability to 

consider all of the facts of a case has led to substantial inequities, especially for individuals with 

minor or old disqualifying criminal conduct. Expanding judicial discretion to grant relief tor 

those individuals with minor convictions on their record, including minor non-violent drug 

offenses, would bring fairness back to our i1mnigration system. 

Former Immigration Judge Paul Grussendorf, who testified before the Senate Judiciary 

Committee on March 20, 2013, provided the following example of a woman whose case came 

before him and who was designated with an aggravated felony for stealing diapers. As a result 

she was subject to mandatory detention. 

A mother from El Salvador who had received a suspended sentence for shoplifting baby 

diapers for her U.S. citizen child came before me on the custody docket, and I had to 

infonn her that I could not even consider bond in her case. She chose deportation so as 

not to be separated from her infant [while she was in detention], although she may even 

have been eligible for a green card if she were not designated as having committed an 

aggravated felony. 

The Senate bill, S. 744, keeps intact the current definition of"aggravated felony," which has led 

to patently unfair results and is long overdue for reform. 

As currently applied by ICE, our mandatory custody or detention laws prevent the release of 

entire categories of noncitizens charged with immigration violations. The restraint of an 

individual's liberty is one of the most consequential government powers. No one should be 

deprived of their liberty except as a last resort. But every day, thousands of people -including 

asylum seekers and those with no criminal convictions- are detained by Immigration and 

Customs Enforcement (ICE) though they pose no flight risk or threat to public safety. According 

to recent ICE data, as of May 2, 20 II, 41 percent of immigrants in detention were classified at 

the lowest possible risk level. Categorical laws that mandate prolonged deprivations of liberty 

without permitting- or without sufficiently ensuring- the availability of release under the least 

restrictive conditions run afoul of basic principles of fairness and due process. 

16 
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In the last several years, Congress has increased funding for ICE detention beds, from 20,800 

beds per day in FY 2006 to 34,000 beds per day in FY 2012. The appropriations law has been 

interpreted by ICE to mandate detention of a minimum average daily number of 

noncitizens. This ''mandate" puts pressure on ICE to detain more people, even if the agency 

determines that reducing detention is a smarter, more effective approach. 

ICE has a range of tools other than institutional detention at its disposal and should be 

encouraged to use them more often. Spending on detention has increased exponentially from 

$864 million seven years ago to $2.02 billion today. Spending billions of taxpayer dollars to 

needlessly detain immigrants who could successfully and safely be released is a poor use of 

limited resources. Immigration detention costs U.S. taxpayers between $122 and $164 per day; 

however, proven alternatives to detention cost between 30 cents and $14 per day and have an 

over 90 percent success rate. 16 

Immigration officers and judges must have the authority in all cases to consider alternatives to 

detention for individuals who are vulnerable or pose little risk to communities and to consider in 

each case whether continued detention is necessary and lawful. Further, ICE should be required 

to place each individual in the least restrictive setting available. 

Bond hearings also must occur in a timely fashion. Detainees often languish in detention with no 

hearings scheduled in their cases because charging documents have not been served on them or 

filed with the immigration court. Finally, detention conditions fall well below appropriate 

standards for civil confinement. Clear standards that mandate humane conditions of civil 

detention under which aliens may be housed must be adopted, and there needs to be meaningful 

oversight and penalties for non-compliant facilities. 

Thank you for the opportunity to address these important issues, and for your efforts to grapple 

with these difficult questions. 

16 U.S. Immigration and Customs Enforcement Salaries and Expenses, Fiscal Year 2012 Congressional Budget 

Justification, 43. 

17 
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Testimony of Kris W. Kobach 

Before the United States Senate Committee on the Judiciary 

Hearing on Comprehensive Immigration Reform Legislation 

April 22, 2013 

Mr. Chainnan and Members of the Committee, although 1 serve as Kansas Secretary of 

State, I come before you today chiefly in my capacity as former Counsel to United States 

Attorney General John Ashcroft, and as an attorney representing cities and states that have 

successfully reduced illegal immigration within their jurisdictions. I also represent the ten ICE 

agents who are suing Secretary Napolitano for the reason that her directive of June 2012 directly 

orders the agents to violate federal law. That case is Crane v. Napolitano, No. 3:12-cv-03247-0 

(N.D. Tex.). 

The legislation pending before this committee has been portrayed as a balanced bill that 

combines an amnesty with significant enforcement measures. That portrayal is completely 

inaccurate. In the testimony that follows I will offer three significant vulnerabilities created by 

the amnesty provisions and six reasons why the enforcement components of this bill are illusory. 

Three Flaws in the The Bill's Amnesty Provisions. 

(1) The Background Checks Are Insufficient to Prevent Terrorists from Gaining Amnesty. 

The background check provisions of the bill in Section 2101 (b )(8) contain no 

requirement that amnesty applicants actually provide government-issued documentation proving 

who they say they arc. That means that any illegal alien can invent a new name with a totally 

clean record and present that name when applying for the amnesty. Immigration officials will 

have absolutely no way to force the alien to disclose his real identity. In other words, an alien 

who has a terrorist background can call himself''Rumpclstiltskin" without having to prove that 

that is his real name. Indeed, under Section 2101 (b)( 12), the terrorist alien gains a new photo-ID 

document issued by the federal government that gives credibility to his fictitious identity. He 

also gains legal immigration status and the ability to travel outside of the United States to 

coordinate with international terrorist groups and then to return to the United States. As 

marathon bomber Tamer/an Tsarnaev demonstrated, an alien's ability to travel internationally 

and gain terrorist training before returning to the United States can have deadly consequences 

for innocent Americans. 

It should also be pointed out that even if a terrorist uses his real name when seeking the 

amnesty, a background check is in most cases unlikely to produce information sufficient to stop 

the granting of legal status. Again, the case ofTamerlan Tsamaev illustrates the point. 

Although Tsarnaev entered the country legally, he was compelled to undergo background checks 

1 
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similar those that amnesty applicants would undergo. Tsarnaev cleared those background checks. 

He was also interviewed by FBI agents in 2011 at the request of a foreign government. The FBI 

found no links to terrorism and released him. That is far more scrutiny than applicants for the 

amnesty offered by this legislation would receive. 

The United States has granted amnesty to terrorists before. That is exactly what 

happened in 1986 when we last granted an amnesty to millions of illegal aliens. Under that 

amnesty, the United States granted legal status to Mahmoud "The Red" Abouhalima, who 

fraudulently sought and obtained the amnesty for seasonal agricultural workers. He was actually 

working as a cab driver in New York City. He was a ringleader in the 1993 terrorist attack 

against the World Trade Center, and he used his new legal status to travel abroad for terrorist 

training. His brother Mohammed, another participant in the 1993 attack, also gained legal status 

under the 1986 amnesty. 

(2) Abseonders and Aliens Who Have Already Been Deported Claim the Amnesty. 

One provision of the bill is particularly counterproductive with respect to immigration 

enforcement. Unlike the amnesty of 1986, and unlike the various smaller amnesties that have 

been enacted since then (such as the "Section 245i" amnesty), this bill actually allows illegal 

aliens who have already been deported from the United States to return and gain the amnesty. 

Sections 21 OJ (b )(6)(B)-(C) do so. Theses provision are a waste ofthe millions of dollars in 

immigration court proceedings and other costs that were spent in the process of removing those 

aliens from the United States. 

Worse, the bill allows alien absconders who have remained in the United States as 

fugitives, despite the tact that a removal order has been issued to them by an immigration court, 

to receive the benefit of the amnesty. Sections 21 Ol(c)(7)(C)(i) and 2211 (b)(5)(C)(i) grant this 

benefit to absconders. This would create a significant and perverse incentive for aliens who are 

removed in the future. Any alien who is ordered removed after this bill is enacted would be 

effectively told, "Ignore your removal order and remain in the United States until the next 

amnesty." This provision would make a mockery of immigration court proceedings. 

(3) The Bill Legalizes Dangerous Aliens Who Received Deferred Action Under DACA. 

Sections 210 l(b )(13 and 21 03(b )(2)(C) permits beneficiaries of Secretary Napolitano's 

unlawful DACA directive of June 2012 to become eligible for the amnesty and for lawful 

permanent resident status. The DACA Directive was issued by Secretary Napolitano in direct 

violation of federal law, specifically 8 U.S.C. § 1225, which requires that immigration officials 

place certain aliens into removal proceedings. 8 U.S.C. § 1225(a)(l) requires that "an alien 

present in the United States who has not been admitted ... shall be deemed for purposes of this 

chapter an applicant for admission." This designation triggers 8 U.S.C. § 1225(a)(3), which 

requires that all applicants for admission "shall be inspected by immigration officers." This in 

turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates that "if the examining immigration 

2 
349 

officer detennines that an alien seeking admission is not clearly and beyond a doubt entitled to 

be admitted, the alien shall be detained for a proceeding under section 1229a of this title." The 

proceedings under 8 U.S.C. § 1229a are removal proceedings in United States Immigration 

Courts. 

As was recently revealed in an April 8, 2013, hearing before the U.S. District Court for 

the Northern District of Texas, DHS has employed that unlawful DACA Directive to release 

numerous aliens who have been arrested, but not yet convicted, of very seriousfelonies 

including: assault on a federal officer, sexual assault on a minor, and trafficking in cocaine. If 

this bill is enacted, those dangerous aliens will be eligible for the amnesty; no provision of the 

bill disqualifies criminals who have been arrested but not yet convicted. 

Six Reasons Why The Bill's Enforcement Provisions are not Serious. 

(1) The So-Called Enforcement "Triggers" in the Bill are Trivial. 

The bill is contains two triggers that have been described as ensuring enforcement of our 

immigration laws. They do no such thing. The first trigger (in Section 3(c)(l)) is simply the 

submission of written strategies to Congress by the Homeland Security Secretary. After 

submitting these pieces of paper, DHS may begin accepting applications and offering immediate 

legal status to illegal aliens. The second trigger (in Section 3(c)(2)), which allows DHS to adjust 

the legalized aliens' status to lawful pennanent resident is equally insubstantial. It is merely a 

statement from the Secretary that the strategies are "substantially deployed and substantially 

operational." These terms are not defined in the bill and have no concrete meaning. Indeed the 

Obama Administration's current border enforcement strategy is "substantially deployed and 

substantially operational.'' But it is largely ineffective. In addition, DHS must implement a 

"mandatory employment verification system,'' but that too is left undefined and is so vague that 

the current 1-9 paper system could be said to qualify. Finally, DHS must implement an 

"electronic exit system'' at air and sea ports of entry. Arguably, the current U.S. Visit kiosks 

already satisfY this vague description. Moreover an exit verification system that does not include 

land ports of entry is utterly pointless, since DHS can never conclusively determine whether or 

not an alien has left if the land ports of entry are not included. 

(2) The 90 Percent Metric is Completely Meaningless. 

Even more misleading is the bill's promise to achieve an "effectiveness rate" of90 

percent or higher in "high risk border sectors." The bill requires that, within five years after 

enactment, DHS must certifY that it is catching or turning around 90 percent of all border 

crossers in these sectors. If not, a Border Commission will be created to reshape DHS strategy at 

the border. The first problem with this metric is that it is sheer fantasy to imagine that we can 

calculate that percentage. We have no idea how many people the Border Patrol doesn't catch. 

3 
350 

And we likely never will. Thus, it is impossible to know whether we have achieved 90 percent 

or not, because we have absolutely no idea what the denominator is. 

The second problem with this metric is that it is only applied at a few so-called "high risk 

border sectors'' where the annual number of apprehensions is over 30,000. Only three of the nine 

border sectors meet that definition at present. As illegal immigration patterns over the last two 

decades demonstrate, smugglers constantly adjust their routes in response to Border Patrol 

activity. If by some miracle, the Border Patrol manages to deploy complete video surveillance 

and improved security in the three high risk sectors, the smugglers will simply move their 

operation to the other sectors. In which case, DHS will be declaring 90 percent success in a 

sector that the smugglers have long abandoned, while smuggling traffic surges elsewhere. 

Finally, even if calculating this metric were possible and it were to be done across the 

entirety of the southern border, the DHS under current leadership has demonstrated that it cannot 

be trusted to fairly report its statistics. For the past two years, we have heard DHS repeatedly 

claim that deportations are at an all-time high. It sounds pretty impressive: almost 410,000 

removals in FY 2012 alone. However, we now know that DHS has been cooking the books. In 

FY 2011, DHS started transporting many of the aliens who were caught at the border (and who 

would have counted as "voluntary returns," not "removals") to a different border sector before 

releasing them. But DHS decided to count these voluntary returns as "removals" since ICE had 

control of the alien for a short period of time during transit. And that little accounting trick made 

all of the difference. In FY 2012, there were about 86,000 of these cases. Take them out of the 

total, and the claimed 410,000 removals shrinks to 324,000. Given their track record, we simply 

cannot trust current DHS leadership to fairly calculate their success percentages. 

(3) The Bill Hobble State Enforcement Efforts in the Workplace. 

For the past four years, the only meaningful enforcement against illegal labor in the 

workplace has occurred at the state level. The Obama Administration essentially brought a halt 

to worksite enforcement in 2009 (with the exception ofi-9 "audits"). Those state efforts have 

been particularly effective. Most notably, in Arizona, the Legal Arizona Workers Act resulted in 

a 36 percent decrease in the population of illegal aliens in the state between 2008 and 20I l, 

when the nationwide population decreased only one percent. 

Another major flaw in this bill is the ''preemption" clause found in Section 274a(h) on 

page 496 of the bill. This provision guts almost all state laws prohibiting the knowing 

employment of unauthorized aliens. A State also would not be able to fine an employer for 

failing to use the verification system. The clause preempts everything except for "business 

licensing ... as a penalty for failure to use the System." This preemption clause is extremely 

broad and overturns the penalties that already exist in numerous states. Under this clause, no 

state may pass a law that penalizes employers for knowingly hiring or continuing to employ 

unauthorized aliens. This huge preemption clause is problematic because it permits employers 

4 
351 

who knowingly hire or continue to employ illegal aliens to avoid any kind of enforcement by 

State and local governments. If this bill were really intended to be tough on employers and 

illegal immigration, it would expand, not restrict, the authority that states already have to 

discourage illegal immigration. What is more, that weakness is exacerbated by the lengthy 

phase-in period of the verification system. During that entire period, a State has absolutely no 

authority to discourage the hiring of unauthorized labor. 

(4) The Employment Provisions Exempt Large Categories of Labor. 

The definition of"employer," found in the amendment to INA Section 274A(b)(3) on 

page 402 of the bill exempts any employment that is ''casual, sporadic, irregular, or intermittent." 

In other words, the express definition of"employer" excludes anyone that hires someone in any 

of those situations. Currently, many of the ways in which illegal immigrants obtain labor will 

thus no longer be unlawful. Likely any kind of day labor would easily fit within this definition. 

No employer would have to verify the work authorization status of any such employee, nor even 

refuse to hire the worker if the employer had knowledge of the person's unlawful work 

authorization. What is more, even if it weren't large enough of a loophole to allow illegal labor, 

the bill expressly allows the DHS Secretary to define the terms as the Secretary sees fit. The 

term "intermittent" alone is so broad that many construction employers could hire illegal aliens 

on an as needed basis, and potentially not violate the statute. 

The bill also contains a huge loophole for illegal labor employed by subcontractors. The 

proposed INA 274a(a)(3) on page 396 of the bill, only prohibits "obtaining labor. .. while 

knowing that the alien is unauthorized.'' Therefore, under typical contractor bidding, a general 

contractor will take proposals from subcontractors to perfonn work. As long as the general 

contractor is not contracting with a subcontractor to obtain the worker "while knowing that the 

alien is unauthorized," the general contractor is not implicated. What is more, the "continuing'' 

employment provision will not prohibit the contractor from continuing the contract with the 

subcontractor, even if the general contractor learns of the unlawful labor during the performance 

of the contract. The contractor is not "employing" the illegal aliens, so the general contractor is 

not violating 274A(a)(l) or (2). And the contractor did not "obtain" the unauthorized labor 

through contract, so the general contractor is not violation of INA 274a(a)(3). 

(5) The Bill Scraps and Replaces the Proven E-Verify System. 

One of the big selling points made by some lawmakers has been that this bill would 

mandate the use ofE-Verify. Repeatedly, employers who use £-VerifY give high grades to the 

system and successive administrations admit that E-Verify is the best way to ensure a lawfully 

authorized work force. Y ct, rather than simply mandating nationwide E-Verify use, this bill 

scraps the entire E-Verify system. Section 310l(e) of the bill (Pages 503-04). E-Verify is a 

system that is already used by more than 400,000 employers. Several states already mandate its 

use by all employers (Arizona, Mississippi, South Carolina, and Alabama), and many more states 

5 
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mandate its use by public employers and the recipients of government contracts. There does not 

seem to be a significant difference between the current £-Verify system and the system that the 

bill mandates must be created. So, one has to wonder why this bill would scrap the successful 

E-Verify system which billions of dollars has already been spent. 

Furthennore, the prolonged phase-in requirement for the replacement system does not 

start at the time of the bill's enactment, but after the regulations implementing the new system 

are in place. INA 274a(d)(D), (E), (G). The only deadline seems to be in the trigger section, 

which requires that "the Secretary has implemented a mandatory employment verification 

system to be used by all employers to prevent unauthorized workers from obtaining employment 

in the United States." Bill Sec. 3(c)(2)(A). In other words, it does not appear that any employers 

will be required to even use the new system before the newly amnestied aliens (Registered 

Provisional Immigrants or "RP!s'·) may be converted to LPR status. Instead, under the terms of 

the statute, the system only needs to be in place so that it is "to be used" by employers. 

In short, this bill is not a good-faith effort to implement a national electronic verification 

system for employers. If it were, the bill would follow the example of several states and 

immediately require E-Verify usage by large employers within a one-year period after enactment 

and by all employers within a two or three year period. There is absolutely no reason to scrap 

the E-Verify system and replace it with another--other than to delay any meaningful 

enforcement in the workplace. 

(6) The Bill Exempts Current Employees from Verification, 

A final major flaw of the bill is that it does not require, or even pennit (except when 

ordered by the DHS Secretary due to a pattern and practice of violations), the electronic 

verification of existing employees. INA§ 274a(d)(l)(ii). Furthennore, it is deemed an "unfair 

immigration-related employment practice" to "use the System to reverify the employment 

authorization of a current employee ... " Section 31 05(a) (amending INA § 274B(a)(4)(C) (page 

514). If this bill were truly intended to protect American workers against unfair competition 

from illegal labor, it would subject existing employees to electronic verification. 

6 
353 

Testimony of 

Former Utah Attorney General Mark L. Shurtleff 

Senate Judiciary Committee 

"Hearing on Border Security, Economic Opportunity and Immigration 

Modernization Act, S.744" 

April 22, 2013 

Chairman Leahy, Ranking Member Grassley and distinguished Members of the 

Judiciary Committee: 

My name is Mark Shurtleff. I am currently a Partner in the Washington DC office of 

Troutman Sanders LLP, and the former three term Attorney General for the State of 

Utah. Thank you for inviting me to testify before you today regarding the important 

issue of comprehensive immigration reform. 

Let me start by saying our hearts and prayers go out to the people of Boston. As the 

former top law enforcement official for the State of Utah I know what a difficult time 

this can be. We are extremely grateful for the fast and successful work of federal, state 

and local law enforcement officials in responding to this atrocious attack. Any strike 

against America is an attack against all Americans regardless of their faith, ethnicity or 

national origin. All Americans are united in our revulsion at this crime, and in our 

resolve to pull together for the security of our communities and our nation. 

Having been a long-time Republican advocate for comprehensive reform of America's 

immigration system, I applaud the Committee for moving so quickly and with purpose 

in holding this hearing on Senate bill S. 744, the Border Security, Economic 

Opportunity, and Immigration Modernization Act. 

Prior to being elected Utah Attorney General I was an assistant attorney general, deputy 

country attorney and a county commissioner. From my experience on the ground at the 

state and local level observing and dealing with the impact of a broken system, and my 

study of this bill, it is clear that it not only addresses the moral imperative of reform, but 

also demonstrates the best of what is a uniquely American tradition of pulling together 

for the good of the country - not the least purpose of which is to enhance national 

security and local public safety.i 

From a law enforcement perspective, we need to fix legal immigration in order to reduce 

illegal immigration. By modernizing our system and making legality and accountability 

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354 

our top priority, our government can take control and make immigration once again 

work for America. 

I believe Congress must now seize upon the momentum that has been building around 

immigration reform. For more than two years, starting with the Utah Compact, an 

alliance of conservative faith, law enforcement and business leadership has come 

together to forge a new consensus on immigrants and America. These relationships 

formed through outreach in the evangelical community; the development of state 

compacts; and convening of regional summits in the Mountain West, Midwest and 

Southeast. 

In early December 2012, I was one of over 250 faith, law enforcement and business 

leaders from across the country - including two of today's other witnesses, Dr. David 

Fleming, Senior Pastor of Champion Forest Baptist Church, and Grover Norquist, 

President of Americans for Tax reform- who came to Washington, D.C. for a National 

Strategy Session and Advocacy Day. We told policymakers and the press about the new 

consensus on immigrants and America. More importantly, faith, law enforcement and 

business leaders from across the country committed to work together to urge Congress 

to pass broad immigration reform in 2013. 

In February, we launched the Bibles, Badges and Business for Immigration Reform 

Network to achieve that goal. Over the last few months, 'Bibles, Badges and Business' 

have hosted dozens of events all over the country to keep the momentum going around 

immigration reform. 

As the Judiciary Committee discusses reforming our immigration system, I applaud the 

work of four of the committee's members, Senators Richard Durbin, Charles Schumer, 

Lindsey Graham and Jeff Flake, who helped craft the Border Security, Economic 

Opportunity, and Immigration Modernization Act. This bipartisan legislation is a strong 

start for the immigration debate this year. I am also pleased that my Senators Mike Lee 

and Orrin Hatch of Utah have been engaged in these bipartisan negotiations and hope 

they continue to be involved in the process. 

Now that the legislation is introduced, many will work to improve it as it goes through 

the important process of regular order in the Senate, first in Committee and then to the 

Senate floor. This bill strikes a careful balance among its most important pillars: interior 

enforcement and border security, earned legalization and a path to citizenship, needed 

reforms to our current immigration system, and efforts to deal with the current backlog 

of immigration. 

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I urge this Committee, and all Senators, as they consider this bill, to continually 

remember that the whole of the bill is much more than just the sum of its parts. This bill 

is not perfect. There is no such thing as a perfect bill. Each part of the bill has impacts on 

the other areas. 

It is also important that the discussion does not become singularly focused on 

enforcement. Over the last few years we have carefully followed and analyzed the 

consequences of state enforcement-only approaches on immigration reform, and they 

have led to less law and less order. Law enforcement must deal pragmatically with the 

reality of how policy translates to the street; and a commonsense, workable solution is 

imperative. 

Our Border Has Never Been More Secure 

Since 2004, I have participated in numerous border and cross-border conferences and 

training exercises with American and Mexican federal, state and local law enforcement 

and criminal justice professionals including many of the attorneys general from states in 

Mexico. During these conferences we have been briefed on the ongoing efforts to further 

secure the border. 

Currently, the entire Southwest border is either "controlled," "managed," or "monitored" 

to some degree according to the Department of Homeland Security. When I was first 

elected Attorney General of Utah in 2000 we had a total 8,500 agents at the border and 

were apprehending 1.6 million people per year. Now, we have a record 21,370 Border 

Patrol agents that continue to be stationed at the border, a number that does not include 

the iliousands of agents from other federal agencies, including the Drug Enforcement 

Agency (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Federal 

Bureau of Investigations (FBI), and other agencies, supplemented by National Guard 

troops. As a result of these increased resources and programs, in my last year in office, 

2012, we apprehended 365,000 people attempting to cross the border. Indeed our 

border with Mexico is more secure today than it has ever been. 

As of February 2012, 651 miles of border fencing had been built out of the 652 miles that 

the Border Patrol feels is operationally necessary. The fence now covers almost the 

entire length of the border from California to Texas. There is double fencing in many 

areas. 

Customs and Border Protection now has more than 250 Remote Video Surveillance 

Systems with day and night cameras deployed on the Southwest border. In addition, the 

agency relies on 39 Mobile Surveillance Systems, which are truck-mounted infrared 

cameras and radar. CBP has also deployed additional Mobile Surveillance Systems, 

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356 

Remote Video Surveillance Systems, thermal imaging systems, non-intrusive inspection 

systems, radiation portal monitors, RFID readers and license plate readers to the 

Southwest border and is the process of acquiring more. CBP currently operates three 

Predator B unmanned aerial drones from an Arizona base and two from a Texas base, 

providing surveillance coverage of the entire Southwest border across Arizona, New 

Mexico, and Texas. 

Prior to August 2006, many persons who were apprehended at the border were released 

pending their immigration hearing. That practice was ended in August 2006, and now 

nearly all persons crossing the border illegally are detained. Immigration and Customs 

Enforcement (ICE) is now funded to hold 33,400 individuals in detention at any given 

time. In Fiscal Year (FY) 2011 ICE detained a record number of people: 429,000. In FY 

2012 ICE deported a record 409,849 people. Of these, approximately 55 percent, or 

225,390, were convicted of felonies or misdemeanors - almost double the number of 

criminals removed in FY 2008. On top of this, 96 percent of all removals (also a record 

high) fell under ICE's priorities for deportation. 

ICE priorities include recent border crossers and people who re-enter the country 

illegally. An enormous amount of resources are devoted to prosecuting individuals who 

enter the country illegally. For example, in the first 10 months of FY 2011, over 63,000 

people were charged with illegal entry or illegal re-entry, making up 46 percent of all 

federal prosecutions during that time. 

Increased Border Provisions in S.744 

Notwithstanding the forgoing, the eight committed sponsors of this legislation 

understand that as part of a comprehensive approach to the problem, they need to 

provide additional resources and programs to help further secure our nation's borders. 

The bill calls on the Department of Homeland Security to create a "Comprehensive 

Southern Border Security Strategy" which would achieve and maintain an effectiveness 

rate of 90 percent or higher in all high-risk border sectors. To help implement this 

strategy, three billion dollars from fees and fines collected under the bill will be made 

available. 

The Secretary of Homeland Security must also submit a "Southern Border Fencing 

Strategy" to Congress and the Comptroller General of the United States to identifY areas 

of the southern border where enhanced barriers should be put in place, including double 

and triple fencing. Another $1.5 Billion will be made available to implement this 

additional fencing. 

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The Best Defense is a Good Offense 

It is often said in sports that the best offense is a good defense, but as a former offensive 

lineman, I always believed the opposite was true. So that while the additional border 

security provisions of S.744 are vecy important to law enforcement, of perhaps even 

greater value to national and local security, are the many reforms that fix legal 

immigration, deal pragmatically and justly with those currently here in an unauthorized 

status, and enhance identification for future immigrants and migrant workers. These 

reforms will reduce and eliminate the causes and incentives for past illegal entcy or 

overstays. 

For example, streamlining legal immigration; eliminating backlogs for family and 

employment-based immigrants; opening up greater numbers and new categories of 

visas; enhancing and improving employment verification systems; mandating 

"biometric work authorization cards"; creating SSN "locks"; adding due process 

protections; and registering employers will all work to ensure legal migration and 

immigration are the first choice of those who want to come to this countcy to better their 

own lives and those of their families, and contribute to the growth, vitality and 

improvement of the United States of America. 

The American people want this problem solved. In poll after poll the American people 

demand law and order, secure borders and broad immigration reform that includes 

earning U.S. citizenship. Immigration reform is good for national security and public 

safety as a whole. We learned in Utah that when brave and selfless policy makers step up 

and do what is right, instead of what is thought to politically expedient, they will be 

supported by not just those who carcy Bibles, wear badges, and own businesses; but by 

the majority of the American public and in particular, by those who participate in our 

Constitutional Republic by going to the polls. 

I look forward to continuing this positive discussion on how best to move forward with 

passing broad immigration reform into law this year. We cannot let the status quo 

continue any longer. The moral imperative is now for uniquely American comprehensive 

immigration reform that is just, pragmatic, fair and compassionate. 

' Last year First Focus Campaign For Children published a treatise I wrote entitled "A Dream of Youthful Hopes" 

which details much of my experience in dealing with the lack of action by federal policymakers to address 

immigration reform which resulted in the introduction of state laws around the country that have a direct impact 

on children of immigrants. The paper highlights the success of the Utah Compact as well as the importance of 

recent federal administrative reforms and need for comprehensive reform. It gives insight into my education and 

experience underlying my testimony today. A copy can be downloaded at 

http :1/www. fi rstfocu s. net/ I i bra ry/repo rts/ a-dream-of -yo uthfu 1-hopes 

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April 19, 2013 

Mr. Patrick Leahy 

Chairman 

I S 

United States Senate Committee on the Judiciary 

Washington, D.C. 

Good morning, Mr. Chairman, and Members of the Committee. My name is Guillermo 

Vidal. I am here to lend support to the Border Security, Economic Opportunity, and 

Immigration Modernization Act of 2013. 

I am the President and CEO of the Hispanic Chamber of Commerce of Metro Denver, an 

organization of over 2000 business members. 

Although I represent the business community today, I also bring over 36 years of experience 

as a public servant, holding several positions within the great city of Denver, Colorado 

including serving as the city's 44'h and first foreign born mayor. 

Before I served the state of Colorado for twenty three years in the Colorado Department of 

Transportation, the last five of which I held the post of Executive Director and part of a 

governor's cabinet. 

I am a proud American, but I am also Cuban immigrant who, in 1961, at the tender age of 

10, was sent by my parents to the United States with my two brothers as part of a program 

called Operation Peter Pan that brought 14,000 Cuban children to this country 

unaccompanied by their parents in order to save them from Castro's Cuba. 

For this reason, my testimony today is rooted in everything that 1 am, everything that I have 

and everything that I have ever achieved as a result of the door that was opened to me the 

day I arrived in the United States. 

My personal story represents two great truths about this country, First, that anyone 

regardless of the most humble beginnings can become anything they set their mind to, like 

the mayor of a large city or perhaps even greater, 

Fifty two years ago I arrived in this country parentless and was sent to live in an orphanage 

in Pueblo, Colorado. Every day I woke up not knowing what suffering awaited me. Many 

nights I cried myself to sleep and asked a merciful God to take my life and spare me from 

the great sorrow I was experiencing. 

Yet, here I am today testifying before you, the Senate Judiciary Committee. 

But the second truth that my story represents is that immigrants make positive contributions 

to the success of this country daily, especially when they can live our of the shadows. 
359 

l 

Immigrants built America. \Ve came escaping the desperation of poverty, or to free ourselves 

from oppressive regimes that violated our human rights. We came in search of education 

and opportunity. 

We chose a new destiny, the United States of America, a beacon of hope and promise of a 

brighter future, a place where all can live in freedom and contribute to the success of their 

communities. 

Unfortunately, over the years, indecisiveness and lack of action on comprehensive 

immigration reform has resulted in a dysfunctional system that has confiscated the respect 

we once held for immigrants and replaced it with a fear and ignorance that has dehumanized 

these individuals to the point that they are looked down upon as human throwaways. 

I am encouraged by the bi-partisan effort that emerged to craft this legislation, but after all 

my years in government developing public policy, I know that no legislation will ever be 

perfect enough to satisfy every nuance from all political sides. 

But hopefully we can agree on one thing; fixing our immigration system will contribute to 

the greater good of our country by; 

- securing our borders and providing a safe, fair and orderly process into this nation. 

- giving a clear set of rules and realistic timeline for future immigrants to live and 

work here. 

providing legal status and a path to citizenship to undocumented immigrants 

already here so that they may openly contribute to our society. 

- keeping families together, 

- providing immigrant children who came here following the will 

of their parents a stable home and their own opportunity at the American dream. 

This Comprehensive Immigration Reform will bring people out of the shadows to; 

- Provide a skilled and dedicated workforce that will grow our economy. 

- Invite entreprencurialism and innovation that will create more businesses and 

jobs. 

- Bring in new revenues in the form of taxes that will help us run our country and 

strengthen our government 

- Bring out into the open a new group of consumers that will spur 

new business growth. 
360 

I I 

My parents made an unfathomably courageous sacrifice in sending their children to this 

country, and I am the better for it. My life has been filled with hope, opportunity, meaning 

and purpose. I am fulfilling my parents' American dream But the America that I was sent to 

as a child would never have tolerated what many immigrants must live with today; living in 

fear of being deported or separated from their families, having their wages stolen by a 

deceitful employer, or having no legal recourse when crimes are committed against them. 

The fabric of America will continue to change and we as leaders should be the positive 

facilitators of that change. 

I ask you to support comprehensive immigration refonn. Let's recover that greater good 

America once proudly displayed for the rest of the world. 

Thank you and I can answer any questions. 
361 

S. 744 Kephart testimony 

Senate Committee on the Judiciary 

"The Border Security, Economic Opportunity, and 

Immigration Modernization Act, S.744" 

Introduction 

Monday, April22, 2013 

Hart Senate Office Building , Room 216 

10:00 a.m. 

Testimony of 

Janice L. Kephart 

former border counsel, 9/11 Commission 

principal, 9111 Security Solutions 

Chainnan Leahy, Ranking Member Grassley. Thank you for having me here today. I appreciate 

very much this committee's continued interest and effort in securing our borders and your 

willingness to hear from so many highly qualified experts today with whom I am honored to 

share testimony. 

It is an honor to be before you as an alum of the committee that prepared me so well for my work 

as a counsel to the 9/11 Commission and my subsequent work on border and identity security. 

More specifically, my testimony is based on my work as a counsel on the 9/11 Commission 

"border security team," as an author of the 9/11 staff report, 9/11 and Terrorist Travel, and as the 

National Security Director at the Center for Immigration Studies for five years. 

From the outset, let me make it clear that I, like many, consider the benefits and wealth of human 

potential that immigration brings to this country to be one of our greatest strengths as a nation. 

However, I also believe that we owe it to all Americans to maintain the integrity of our borders. 

I appreciate the S. 744's Congressional Findings, especially those that make clear that it is the 

federal government's responsibility to "maintain and secure our borders, and to keep our country 

safe and prosperous", "protect its borders and maintain its sovereignty'', and a recognition that 

"illegal immigration ... in some cases has become a threat to our national security." These tenets 

ret1ect and incorporate findings pertaining to abuse of our immigration system's historical 
362 

S. 744 Kephart testimony 2 

vulnerabilities, some of which were made clear by the 9/11 Commission, while others arc 

reflected in more recent events, including the surge in illegal immigration we have seen across at 

least some key sections of the southwest border in recent months as well as the continued abuse 

of the legal immigration system by those with terrorist intentions. 

To be clear, I was asked that my testimony cover the border security portion ofS. 744, "The 

Border Security, Economic Opportunity, and Immigration Modernization Act". The basis of my 

testimony rests on the basic finding of fact from my work on the 9/11 Commission, and 

subsequent work on terrorist travel, border and identity security: that border security is a matter 

of national security. From that vantage point, I thought most helpful to the Committee may be a 

review of the "triggers" that must occur before the "Secretary ... adjust the status of aliens who 

have been granted registered provisional immigrant status" set out in Section 3. My testimony 

therefore covers the "triggers" as follows: 

Part One. Comprehensive Southern Border Strategy must be submitted to Congress and 

"substantially" deployed and operational 

Part Two. E-Verify becomes mandatory 

Part Three. An electronic, biographic exit system is in place 

In addition, I've added in Part Four. Immigration Benefit Identity Verification as Vital to 

National Security Security. 

Part One. Comprehensive Southern Border Strategy 

A. Overview 

The Comprehensive Souther Border Strategy called for inS. 744 has useful, albeit somewhat 

limited, elements. First, the concept of a mandate for a strategy for the southwest border is a 

good one. It is helpful. However, it is also incomplete as the Secretary of Homeland Security is 

not truly required to assure border security, just state the official Department opinion regarding 

what that strategy should be, whether that the strategy has been deployed and how well the 

metrics set out in S. 744 have been met. Also, there is another more nefarious problem with S. 

744 's approach to border security: requiring only a strategy for the southwest border ignores the 

many loopholes that still exist in the legal system to enable entry and embedding of an illegal 

alien, such as the visa overstay or illegitimate asylum seeker. 

The Border Strategy requires a new metric to measure border security, which the bill refers to as 

an "effectiveness rate". The policy equation put forth in the bill to determine the required 90 

percent "effectiveness rate'' is defined as the annual number of illegal entries divided by 

"apprehensions and tumbacks" per sector. To be able to determine "apprehensions and 

tumbacks", the strategy must deploy a means to create a IOO percent detection rate of these 

apprehensions and tum backs. How that is to be done is undefined. The problem is this: if there 

is not I 00 percent detection, then the 90 percent effectiveness rate set forth in the equation will 

be inaccurate, and the metric fails. 

How would I 00 percent detection rate best be achieved? The most fail-proof manner would be 

an interoperable common operating picture deployment by sector which enables Border Patrol 

agents to gamer operational intelligence by geographic coordinates and type of activity on a 24/7 

basis. How a I 00 percent detection rate can be deployed otherwise that is both accurate and 
363 

S. 744 Kephart testimony 3 

reliable will be difficult with a combination oftechnologies that do not garner information in a 

standardized way. 

Another issue with the 'effectiveness rate' is that it appears to be based wholly on human 

activity, and not necessarily on activity that affects public safety. Does the metric now mean that 

the Border Patrol, to maintain a sector's 'effectiveness rate' (assuming it can be achieved), will 

now prioritize only human and alien smuggling, and not drug cartel loads, weapons or other 

contraband which will not count towards the metric? 

In terms of"high risk border sector" where 'effectiveness' must be maintained, this definition 

is questionable as well. While reallocating that term to sectors on an annual basis recognizes that 

smugglers shift their entry points based on law enforcement and other logistics issues, an annual 

determination is an extremely slow response to flows that can shift on a weekly basis. The 

failure to embed flexibility into a high risk border sector, or even requiring that a determination 

be made about whether a sector is high risk or not, may complicate and not support the Border 

Patrol mission, which is to secure the entire border. 

The 'Southern Border Fencing Strategy' is a valuable requirement ofS. 744. A fencing 

strategy with required deployment, with attending authorizations, would also have value as a 

standalone statute. However, S. 744 only calls for a strategy, nothing more. While a strategy is 

a good start, it is actually building one-- one that actually is built to keep individuals out-- that 

works to protect both the border and the environment. This is an issue which I have written 

about extensively. 

The Southern Border Security Commission established in Section 4 of the bill is an invitation 

for failure. Immigration control is a federal responsibility which the states and local 

communities are enabled to support with laws that reflect federal law, or in conjunction with 

federal law enforcement. Creating a Commission five years down the road if the Border Strategy 

created in S. 744 fails is tantamount to, at minimum, a political gesture asking for the states to 

make recommendations and decisions which can not be operationalized without federal support. 

That is a waste of taxpayer money in an era of severe budget cuts as well as a political distraction 

from the federal government's ultimate accountability. 

B.S. 744's Southwest Border Strategy Metric in Light of the Surge of Illegal 

Crossings 

Predator UAV: "We haven't been in that area for hours; we're being inundated where we're at." 

Fixed-wing pilot: "lbis in Night Owl on air four. We're ten eight. We're en route about two zero mikes from Ajo. You guys got targets out there?" 

Predator UAV: "Are you kidding me? We just broke the record." 

Whether the metric outlined is S. 744 is adequate to deal with the complications of border 

enforcement should be considered closely. The metric's relative simplicity focusing on 

apprehensions does not take into account these complications, and may have unintended 

consequences such as encouraging the Border Patrol to focus on the smuggling of people to the 

exclusion of drugs, weapons and other contraband. 
364 

S. 744 Kephart testimony 4 

It also remains unclear how many individuals S. 744 will legalize. Right now, the numbers 

could be substantially higher than the 11 million generally accepted as the illegal population 

currently residing in the United States, especially since S. 744 enables those previously deported 

to seek amnesty. 

Recent data on illegal crossings suggests strongly that the numbers are substantially higher than 

the II million. Whether the American public, and Congress, is comfortable with an increasing 

number of illegal aliens who come here specifically, or in part, to benefit from S. 744 is an 

outstanding question. It would be inappropriate for S. 744 to be considered in a policy vacuum, 

rather than in the reality of the border as it stands today. Below is a snapshot of the southwest 

border today. 

1. Overview oflllegal Border Crossings Since August 2012 

At least over the central Arizona border, there has been a tremendous surge in the amount of 

illegal border crossing activity from August to December oflast year. August is usually a 

relatively low number of crossings due to high heat creating dangerous conditions. However, 

when in late August 2012 the DHS Deferred Action program began accepting applications from 

illegal aliens that qualified under the provisions ofthe June 2012 memo, there was an uncanny 

corollary surge in illegal crossings. While it is impossible to know if the surge is related to the 

deferred action applications, the fact remains that the numbers surged every month from August 

through December 2012. There were 540 incidents in August while there were 2,668 incidents 

in November. The result was a 494 percent increase in activity during that time frame. 

Date 

Prior 346 205 141 

2012.Junl 72 46 26 

20'12-Jul 91 66 25 

2012-Aug 540 436 104 8 

2:012-Sepl 1194 1044 150 31 96 4 

2012-0ct 2019 1853 166 30 101 10 

2012·Novl 2668 2423 245 30 188 6 

I 

I TOTALS:! 6930 6073 557 213 10 520 49 31 47 

The high numbers !rom last November are reflected in recent weeks as well. with groups over 

the same area ranging from 20-40 per day, and group size anywhere from one individual to 

ninety. Hidden cameras show pockets of areas where the drug cartels do near daily drops, but 

the Border Patrol is never seen in any of the footage. 

This chart and data are derived from the non-governmental volunteer group Secure Border 

Intelligence, who uses various official and unofficial sources, including hidden cameras, to 

compile a list of incidents along a portion of Arizona's border with Mexico. All data are 

verifiable, but confidential, given the sensitive nature of the work. A summary chart is below. 

All charts come with attending mapping pinpointing activity, showing where heavy traffic versus 

lower traffic is occurring across the year, and various points in time. Hidden camera and law 

enforcement audio is anecdotally available as well. Note those reported here are only the illegal 
365 

S. 744 Kephart testimony 5 

crossings which were either recorded or noted by federal, state or local law enforcement, or 

picked up by hidden camera. Other illegal crossings remain unknown. 

2. Surge Analysis Details 

From August 1 to September 23,2012, more than 1,000 incidents occurred in 915 "hot spots" in 

a small area stretching from the central Arizona border to about 70 miles north to the Interstate 8 

east-west highway, crossing north over the Tohono O'odham Indian Reservation to the Barry 

Goldwater Firing Range and into the Sonoran Desert National Monument. There have been 

3,275 incidents from August I to October 19. In contrast, just 509 incidents were logged from 

January through July. 

"Incidents" are defined as groups of individuals involved in illegal activity, such as those on foot 

being smuggled by coyotes, drug packers on foot, drug vehicles operating in tandem, ultralight 

planes dropping drugs to a group of waiting vehicles, or even a pack oflookout scouts crossing 

in preparation for another series of drug loads in the near future. Incidents can range in size from 

a handful to as many as 90 individuals at once. One incident in late October included 200 

individuals amassing just south of the border and then dispersing into smaller groups to cross. 

Recall the issues that arose when Agent Nicholas Jvie died in October 2012 immediately after 

being shot in the head by a fellow agent due to confusion surrounding a group of individuals who 

had set off a sensor about six miles east of Bisbee, Ariz. With bounties on Border Patrol agents 

and a surge in numbers, it is almost predictable that agents operating in such a tense atmosphere 

could make such a tragic and fatal mistake. 

There are other issues as welL At least in late 2012, the Border Patrol was not apprehending in 

the traditionally heavily trafficked area ofCasa Grande and Gila Bend about 80 miles north of 

the border at east-west corridor 1-8. However, law enforcement continued to track as many as 

seven groups at a time in this area via air support. Primarily working this corridor on the ground 

to fill in the gap left by the Border Patrol is the "West Desert Task Force". The Bureau of Land 

Management leads often, and operations include representatives from the High Intensity Drug 

Trafficking Area force, the Arizona Department of Public Safety, and Pinal and Maricopa 

County sheriffs offices. Most often these operations occur at night. When operating, the task 

force often is picking up two incidents per day just between Gila Bend and CasaGrande. This 

could mean there are actually up to six incidents a night, if the conventional estimate is correct 

that law enforcement detects just one-third of actual activity in the vicinity of the border. 

Observation I. The number of incidents that grew late last year made clear the level of border 

insecurity existed in the area. According to Secure Border Intelligence data, 73 percent of the 

1,881 incidents occurred in the 54 days between August I and September 23. In August, the 

month began with a low of seven incidents on August 5. By August 31, there were 33. 

On September I, there were 38 incidents. By September 29, the month peaked with 62 incidents 

in one day. On September 30, there were another 38. On October I, there were 43 incidents. 

By October 18, the per-day incidents had jumped to 83. 
366 

S. 744 Kephart testimony 6 

Following are two maps of the Arizona border south of Tucson. The first is from the beginning 

of the year through July 29. the second through October 22. While the amount of activity the 

Border Patrol estimates that it intercepts varies, a conservative statistic puts detection at about 

one-third of actual illegal crossings; applying the same rule of thumb would suggest these maps 

are missing some two-thirds of total incidents. 

January I, 2012- July 29, 2012. Red flags are drugs, yellow are human smuggling. Blue dots 

are actual locations determined via map coordinates. 

January I, 2012 October 22, 2012. Red flags are drugs, yellow arc human smuggling. Blue 

dots are actual locations determined via map coordinates. 

Observation 2. The size of each incident was growing. One incident in October involved about 

200 illegal aliens massed on the Mexican side of the border who then spread out to cross the 
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S. 744 Kephart testimony 7 

border in smaller groupings. The area is south of the Baboquivari Mountains- a favorite of 

coyotes- and is administered by the Bureau of Land Management. It is located about 80 miles 

southwest of Tucson and just east of the Tohono O'odham Indian Reservation. These mountains 

are the Tohono O'odham's holiest location. Recently the area had l 00 illegal aliens in five groups 

of 20 staging to cross the border. 

These peaks have seen the largest groups crossing in this area, with a group of91 in Vamori 

Wash, just west ofthese mountains and seven miles north ofthe border, and two groups of70 

each in the mountains. About 90 people across the three incidents were apprehended and the 

remaining 141 were not stopped, representing the average of Border Patrol apprehensions. 

The incidents have grown so much in both size and number that those tracking them can no 

longer keep up with counting individuals in a group as they struggle just to keep up with incident 

numbers. It seems that traditional coyote and cartel concerns about being noticed and stopped 

due to larger group sizes may be receding. 

Observation 3. Drug activity is unabated. Not a single day has passed between August and 

December without a drug incident, with as many as II in one day. A drug incident is defined as a 

group involving some combination of multiple drug vehicles, packers, scouts, drug bales, and 

weapons. Most days included one to three load vehicles. Only six days did not include drug 

packers. Drug pack horses are also being used, a new tactic for drug runners. 

Oddly, only 16 scouts were found, but 20 drug-related arrests included weapons. 

A typical drug apprehension goes like this: On October 9 at I p.m., 16 miles east of Gila Bend 

and three miles south of Interstate 8, air support was requested for multiple subjects in custody 

along with three vehicles filled with 30 bundles of about 648 pounds of marijuana with an 

estimated street value of$972,766.90. 

Observation 4. Violence continues. From August to December there were four homicides of 

illegal aliens. From January to August there had been just one. 

Observation 5. Use of ultralight planes to carry drug loads is on the rise. In one incident on 

October 20, the plane flew 73 miles into U.S. airspace before dropping IO bales of marijuana. 

These pilots are crafty, often zig-zagging along the border to test whether they are being 

followed or possibly about to be intercepted before proceeding across to drop their drug loads. 

In this case there were three smugglers on the ground and one load vehicle. All three were 

apprehended. 

Law enforcement does not track these incidents back across the border and does not try to stop 

airspace incursions or attempt to confiscate the ultralight planes; it only seeks out the drugs and 

runners left on the ground. The October 20 incident unfolded over two hours, as the ultralight 

entered U.S. airspace, followed a path that allowed it to fly close to the ground, circled until it 

found the load truck, dropped the load, and returned to Mexico unharmed without ever having 

been challenged. 
368 

S. 744 Kephart testimony 8 

The next night another ultralight incursion occurred, but there was no law enforcement activity 

to track its purpose or stop it. 

Observation 6. "The word amnesty possesses remarkable power on the Mexican side of the line. 

It has the same effect as a starter's pistol." Leo Banks, reporter, The Tucson Weekly/a>. 

The president began implementing his deferred action amnesty program in August. Illegal aliens 

were offered driver's licenses in California in September. Other states followed suit. Amnesty 

plus driver's licenses seemed to create a magnet for an illegal population that seeks both legality 

and the ID that embodies legality in most places in America the driver's license- so they can 

get a job and live in the United States comfortably. Despite the border violence, abuse, extortion 

by smugglers, and the high cost of coyotes, plus "border bandits" and "rip crews" within U.S. 

borders and cartel-controlled corridors, Mexicans and other foreign nationals may well see the 

value in risking the violence and potential death for the chance at a job and amnesty being 

offered north of the border. 

3. Texas 

In a recent series of stories from FOX News reporter William LaJeunesse, Border Patrol sources 

told LaJeunnesse that the newest illegal immigrants have nothing to fear from being caught. 

"With the knowledge of immigration reforn1, you will -- and are -- seeing a huge flow of illegals 

hitting the Southern border looking to stay caught,'' a Border Patrol source told Fox News. 

Another said, "Central Americans and South Americans are flooding the system asking for 

hearings knowing immigration reform/amnesty is coming." Moreover, the source told Fox News 

that with the freeing of thousands of non-criminal illegal aliens from detention facilities while 

awaiting removal or deportation hearings, that law enforcement calls the "notice to appear'' a 

sarcastic ·'notice to disappear." 

LaJeunesse also reported that Fox News received emails that show Texas Border Patrol is feeling 

the heat from the surge in illegal crossings as well. Border Patrol officials in Texas feel 

overwhelmed by the sudden influx from Mexico. "Not sure if you saw our last detention report, 

but we have approximately 700 [illegal immigrants] ready to go and another 1,000 unprocessed," 

read one. "We have been at emergency levels for a while and we are now entering critical mass." 

Part Two. S. 744 Requirement for a Mandatory E-Vcrity is a Good Idea, 

Minus the Revisions 

It has taken more than 20 years, but E-VerifY is tinally in a form that is helpful to those 

employers who choose to use it. E-VerifY's on the Web, with straightforward access. Error rates 

are low. The human-resource personnel who use it attest that it is easy to use, cheap and helps 

straighten out hiring issues up front, before cost and disruption become a grave concern. Labor 

statistics from last year showed about I in 8 new hires nationwide checked through the system. 

E-Verify has clear momentum. 

E-Verify replaced a paper-based system that employers incessantly complained about for good 

reason. Even after Sept. I I, 200 I, employers were in a no-win situation with the federal 

government; they faced an immigration law rightly forbidding the hiring of illegal workers but 
369 

S. 744 Kephart testimony 9 

had to rely on a paper-based system which could not verify the identities or documents of new 

hires. Then, with the creation ofE-VerifY in 2004, the main burden for determining work 

authorization shifted to the government in a meaningful way, modernizing what was known as 

the Basic Pilot Program. 

E-Verify taps into the Social Security Administration (SSA) database for verification and, for 

foreign workers, checks with U.S. Citizenship and Immigration Services (USCIS). Photos are 

available for those presenting immigration cards as their IDs, and this is to be expanded to 

include passport photos and, hopefully, driver's license photos as well. 

Kinks in the system are continually being fixed at a remarkable pace; 94 percent of hires are now 

verified instantly, with a mere one percent requiring further action- and most of these are new 

citizens who have not had their Social Security information updated. The rest are rejected as not 

authorized to work. Chilling- and perhaps good proof that E-Verify is doing its job- is that the 

numbers rejected byE-Verify as not authorized to work closely parallels the estimated 

percentage of illegal aliens in the work force, about 5 percent. 

WhileS. 744's interest in making a mandatory E-Verify a centerpiece of assuring a legal 

workforce in noteworthy, unfortunately what is most important about S. 744 is that it renders EVerify initially unhelpful, as most individuals will attain authorization. Nor does a mandatory EVerify appear to require DHS to act on those who fail authorization. S. 744 calls for no less than 

5,000 USCIS and Immigration and Customs Enforcement (ICE) employees to handle E-Verify. 

Nowhere does the law (current or S.744) require that an alien with a final nonconfirmation be 

turned over to ICE to be put into removal proceedings. There are no consequences for illegal 

aliens who fail E-Verify. Making E-Vcrify mandatory without consequences does not assure 

adherence to immigration law. 

Moreover, E-Verify's construct adds not one, not two, but three levels of review of a 

nonconfirmation in E-VcrifY, culminating in the alien receiving four opportunities for 

authorization. The practical result is that this appellate process for the alien creates an extremely 

difficult atmosphere for an employer to terminate an employee, even when clearly the grounds 

for authorization is likely nonexistent. 

To make matters more confounding, S. 744 adds unlawful employment practice to the lengthy 

list ofU visa grounds to apply for a visa. This means that an alien that fails E-Verify 

confirmation despite repeated, and possibly frivolous, time-consuming and costly appeals, can 

claim harm from theE-Verify process and get aU visa. 

S. 744's straightforward requirement for a mandatory E-Verify is sufficient. Adding appellate 

processes to an already well-developed confirmation I nonconfirmation process is not helpful and 

should be deleted. Also unhelpful is the ability of a nonconfirmed alien to obtain a lJ visa by 

claiming theE-Verify program caused harm. 

Part Three. S. 744 Unnecessarily Requires an (Insufficient) Exit System 

On August 23, 2001, the CIA provided biographical identification information about two of the 

hijackers to border and law enforcement authorities. The CTA and FBI considered the case 
370 

S. 744 Kephart testimony lO 

important, but there was no way of knowing whether either hijacker was still in the country, 

because a border exit system Congress authorized in 1996 was never implemented. 

9/11 and Terrorist Travel monograph (August 2004) 

This nation most certainly needs to fulfill the mandate to complete a comprehensive exit system 

that includes air, land and sea ports of entry. However, S. 744's exit component fails to include 

the largest volume of crossings, that of the land border ports of entry. In addition, the exit 

component ofS. 744 is unnecessary for two reasons: (1) six prior inconsistent exit laws have 

already complicated the exit requirement enough; and (2) just a few weeks ago congressional 

appropriators used their purse strings to realign exit implementation to Customs and Border 

Protection. 

A. National Security Component of Exit; Why We Need It 

In September 2011, on 9/11 's ten year anniversary, 9/11 Commission Chairman Torn Kcan and 

Vice-Chairman Lee Hamilton, who together led the bipartisan commission forward politically 

and substantively in a manner that has changed the way we look at national security, released 

their "Tenth Anniversarv Report Card: The Status of the 9/ll Commission Recommendations." 

The report highlights the top nine areas the Commissioners believe require the most work. They 

term these "Nine Major Unfinished 9/ll Commission Recommendations." 

Discussing the "evolving terrorist threat to the U.S.", the commissioners refer to the breadth of a! 

Qaeda affiliates that have multiplied in diversity since 9/11: "In assessing terrorist threats to the 

American homeland, senior U.S. counterterrorism officials now call attention to a! Qaeda's 

strategy of'diversification' attacks mounted by a wide variety of perpetrators of different 

national and ethnic backgrounds that cannot easily be 'profiled' as threats." Such could be the 

description of the Boston Marathon terrorist attack perpetrated by two Chechen refugee brothers 

brought to the United States as children. 

Yet despite the diversification of the terrorist threat and the huge volume of border crossings, this 

nation still lacks a comprehensive exit system. 

Not having an exit system in place led the 9/ll commissioners to conclude that our border 

system must include data about who is leaving and when, with the following recommendation: 

"The Department of Homeland Security, properly supported by the Congress, should complete, 

as quickly as possible, a biometric entry-exit screening system. As important as it is to know 

when foreign nationals arrive, it is also important to know when they leave. Full deployment of 

the biometric exit ... should be a high priority. Such a capability would have assisted law 

enforcement and intelligence officials in August and September 2001 in conducting a search for 

two of the 9/11 hijackers that were in the U.S. on expired visas." 

Our more recent experience with terrorist threats and attempts reiterates the commissioners 

point. In the wake of the Christmas Plot and the near-getaway by would-be Times Square 

bomber Faisal Shahzad (who had already boarded a flight leaving the United States when he was 

arrested), we are once again reminded that border security is an essential element of national 

security, and exit control is part of that rubric. 
371 

S. 744 Kephart testimony 11 

B. S. 744 Confuses Multiple Laws Already on the Books Requiring Exit, While 

Eliminating the Current Land Border Requirement 

Other nations, like Australia, have made a biographic exit part of their immigration controls for 

years. Yet issues of money, politics, and practicalities of infrastructure have haunted this issue 

for the last 17 years in this country. Various laws requiring exit control have sat on the books 

since 1996. There have been discussions, policy platfonns, even pilot programs, but to this day, 

we do not have a full-fledged exit program covering air, sea and land ports of entry. 

In the post-9/11 era, the issue of national security and biometrics dominated border security 

discussion and policy. The issue has never failed to engage Congress. Even before 9/1 1, in 

2000, two separate laws were passed, one that set up exit and the other that tied it to the Visa 

Waiver Program. In 200 I, the USA Patriot Act chimed in again, demanding exit. In 2002, the 

Border Security Enhancement law again required exit, and in 2004, the intelligence refonn act 

emanating from 9/1 1 Commission recommendations included it again. Beginning in 2004, and 

until2007, pilot programs tor exit were undertaken at the demand of Congress. The technology 

worked, but compliance rates were low since the kiosks were not manned by government and not 

clearly mandatory. 

Then in 2007, the 9/11 Commission Recommendations Act reiterated the need for exit and 

required exit apply to all foreign nationals entering under the Visa-Waiver Program, adding in a 

biometric component. The basic idea behind a biometric exit requirement was to reassert the 

9/11 Commission recommendation that the federal government assure that people are who they 

say they are in real time, and that no derogatory infonnation be linked to them to prevent 

departure. 

Data gathered- depending in part on whether the data was gathered and vetted in real time 

would provide overstay data and watchlists hits. Overstays would give CBP and the State 

Department better data to detennine who gets to visit the US again, and ICE better infonnation 

about who returned or illegally overstayed. Exit data may even give Joint Terrorism Task Forces 

the ability to curtail terrorist absconders who sought to slip out of the US unnoticed based on 

verified watchlist hits- akin to what we saw with the Times Square bomber or those of us on 

the 9/I I Commission staff hoped. US-VISIT, the DHS program that takes 10 fingerprints and a 

digital photo of foreign nationals when they enter the country, seemed the perfect fit to do a 

biometric exit. 

Then in 2008, DHS put out a proposed rulemaking for the "Collection of Alien Biometric Data 

Upon Exit From the United States at Air and Sea Ports of Departure," but it put the onus on 

airlines to collect biometric data anywhere in the international departure process, with no money. 

The airlines balked. A viable exit system was far from implementation. 

In 2009, congressional appropriators, clearly frustrated by the lack of progress in implementing 

exit, required two airport pilot programs before appropriating further monies for exit. In the June 

2009 pilot programs conducted by US-VISIT at Detroit and Atlanta international airports, one 

tested TSA checkpoints, the other required CBP to screen departures on the jetway. Airlines 

refused to participate in the pilot programs, reiterating the emerging agreement that exit, like 

entry, is primarily a government function. Both programs successfully used border inspection 
372 

S. 744 Kephart testimony 12 

personnel to take biometric exit data, at the jetways (in Detroit) and TSA checkpoints (in 

Atlanta). 

Both went very well, with no increase in processing time that amounted to missed flights, or 

even flow time or longer lines. Those processed complied. Overstays and considerable watch lists 

hits were found, proving that a biometric exit fulfilled both immigration and security functions 

simultaneously. Moreover, the technology worked. Overall, the Air Exit pilots confirmed the 

ability to biometrically record the exit of those aliens subject to US-VISIT departing by air. 

In October 2009, the appropriations committees received the evaluation report from US-VISIT 

as required by law. However, Secretary Napolitano decided not to pursue exit, as she testified 

before this committee stating her conclusions as to why. 

C. Appropriators Just Shifted the Exit Requirement to CBP Changing the 

Implementation Dynamic-- It May Well Work 

From its inception, US-VISIT was involved with the statutory requirement for exit because of 

the legal requirement that the program be biometric. Being the only true biometric and 

immigration shop, US-VISIT was saddled with conducting exit pilots and rendering massive 

reports that President Obama's DHS never allowed to see the light of day. Meanwhile, CBP, 

which would be ultimately responsible for full implementation of exit as they are now at entry, 

was included in pilots and contributed input, but never had final say, control, or accountability 

for getting the job done. 

However, Congressional appropriators, in just the past few weeks, took the issue off the table 

and in one set-aside paragraph, made clear that CBP is fully in control and accountable for 

getting the exit done. 

The appropriators also finally broke down the various legal requirements pertaining to exit into a 

viable, practical, phased approach that was desperately needed, adding clarity to convoluted exittracking requirements listed in a handful of different laws. CBP has clear marching orders: the 

agency must produce an enhanced biographic exit-tracking plan first, and quickly, with a later 

phase-in of a biometric exit plan. 

One more potential benefit ofthe new shift of overstay analysis to ICE (done at the same time by 

the appropriators) and exit implementation to CBP: this change may cause the necessary friction 

to actually make exit happen. ICE now relies on many forms of exit data, but getting the same 

data in the same manner with the same standardized sets of information consistently from CBP 

would make their job more accurate and efficient. As CBP uses exit data to determine 

admissions and State to issue visas, mutual agency symbiosis may create the atmosphere to 

finally get exit done, and should be given a chance to succeed. 

Part Four. Immigration Benefit Identity Verification as Vital to National 

Security 
373 

S. 744 Kephart testimony 13 

OH GOD, you who open all doors, please open all doors for me, open all venues for me, open all 

avenues for me. 

Mohammed Atta, operational lead for 9/11 terrorist attack 

The overarching border security problem with S, 744 is not as much with the Comprehensive 

Southwest Border Strategy as with the legalization side of the legislation. The failure is simple 

and pervasive: there is no way to assure most applicants are who they say they are, and have no 

derogatory information attached to their identity that would make them a national security or 

public safety threat. Why? Because most of these individuals have no verifiable identity 

information or authenticatable identity documents. This includes those watchlisted, since the 

current US watchlist exists with no requirement for the attending biometrics. Thus, if a terrorist 

or criminal changes their name, and has no immigration or criminal background, that individual 

will likely be able to enroll inS. 744's legalization program. 

A. 98 Percent Watch listed are foreign-Born 

To place in perspective the national security aspect of creating integrity in immigration benefits 

adjudications, it is important to note that 98 percent of those watch listed are foreign-born. That 

means that there is a significant terrorist population that could seek to change their identity and 

apply for immigration benelits under S. 744. 

More specifically, in 2010, the FBI's Terrorist Screening Center conlirmed the identity of 4,876 

alleged terrorists who had encounters usually for reasons unrelated to terrorism- with law 

enforcement. Today, more than 98 percent of those individuals on the federal government's sole 

Terrorist Watchlist are associated with international terrorism (foreign nationals or Americans 

attacking Americans based on international extremist ideologies). 

Senior FBI sources put the number of current terrorists residing in the U.S. conservatively at 

20,000 to 30,000 of the approximate 550,000 individuals listed on the FBI's official terror 

watch list. I 0,000 to 20,000 of those in the United States are foreign-born. For the full CIS 

Memorandum detailing the fact that 98 percent of the terrorist watch list, see "Administrative 

Amnesty and the Thousands ofWatchlistcd Terrorists Residing in the United States". 

The bottom line is that S. 744 needs to take into consideration that the I 0,000 to 20,000 terrorists 

that law enforcement is well aware of may change their identity and seck legalization. Without 

thorough vetting, there remains the possibility that at least some of these individuals (those listed 

without attending biometrics) could be legalized under S. 744. 

B. Identity Vetting Critical to Preventing Fraud Used by Terrorists and Others 

The processing and vetting provided in the legalization of an unknown illegal population is 

critical to assure an individual is who they say they are, and does not pose a public safety or 

national security threat to the United States. Thankfully, S. 744 does provide that no application 

for provisional status be approved until "national security and law enforcement clearances" have 

been completed. 

However, if an individual has never encountered the U.S. criminal system, we will not know 

their criminal past. If an individual has never encountered our immigration system nor our 

criminal system. there will be no biometrics to vet those individuals' identities. 

Further, there is no way for the immigration system under this type of legalization to verifY birth 

certificates, passports, or other core identifYing information since these individuals' origins lay 
374 

S. 744 Kephart testimony 14 

outside the United States. Thus, the immigration system will not be able to adequately determine 

if an individual applying for legalization is who they say they are, or has used the legalization 

process to create an entirely new identity which hides a personal history that makes clear the 

individual is a serious public safety or terrorist threat. 

The USClS is in a constant struggle with fraud based on counterfeit or stolen identities. 

According to the Federal Trade Commission, identity theft itself cost taxpayers $1.52 billion in 

2011. S. 744 does not make clear how the vetting process assures against identity theft and fraud. 

S. 744 does not assure against the national security risk posed by terrorists, or members of drug 

cartels, seeking to game the system. At base, S. 744 does not verify that individuals are who 

they say they are, a key fundamental concept to achieving border security that the 9/11 

Commission put forth in its Final Report recommendations. 

This next section reviews in detail these abuses from 1990-2005, and a later evaluation I 

conducted on terrorist attempts/attacks from 2009-2013. 

C. Terrorist Abuse oflmmigration Loopholes and Amnesties 

In light of the Boston Marathon terrorist attack, we are reminded once more that border security 

is essential to national security, a concept which is reignited with every terrorist attempt by a 

foreign born individual in the United States since 9/11. S. 744 reminds us of past amnesty laws, 

and their abuse by terrorists. In fact, the 1986 amnesty program was fraudulently used five times 

in attempts to establish residency. One terrorist, Mir Aimal Kansi, sought amnesty under the 

1986 law for illegal entrants. Four others, three convicted for their roles in the 1993 World 

Trade Center bombing and one in the 1993 Landmarks case, sought amnesty under the Special 

Agricultural Workers Program. Three who sought amnesty under this program attained it. 

Many successfully obtain other immigration benefits while here. These facts I noted in my 2005 

report Immigration and Terrorism: Moving Beyond the 9/11 Staff report on Terrorist Travel. 

This report covered the immigration histories of94 terrorists who operated in the United States 

between the early 1990s and 2004, including six of the September II th hijackers. Other than the 

hijackers, almost all ofthesc individuals were indicted or convicted for their crimes. 

My work on the 9/11 Commission made it clear that terrorists need travel documents for 

movement at some point during their journey here as much as they need weapons for operations. 

Once within U.S. borders, terrorists seek to stay. Or, some are radicalized once here. Doing so 

with the appearance oflegality helps ensure long-term operational stability. Terrorist travel 

handlers overseas are well oft his fact, and seek out those with legal status in the United States. 

At the 9/11 Commission we called this practice embedding. 

The 2005 report findings show widespread terrorist violations of immigration laws. The terrorist 

events of the last decade highlights the danger of our lax immigration system, not just in terms of 

who is allowed in, but also how terrorists, once in the country, used weaknesses in the system to 

remain here. The 2005's report makes clear that strict enforcement of immigration law-- at 

American consulates overseas, at ports of entry, and within the United States-- must be an 

integral part of our efforts to prevent future attacks on U.S. soil. Unfortunately, these findings 

remain relevant today. 
375 

S. 744 Kephart testimony 15 

The 2005 report's findings included: 

• Of the 94 foreign-born terrorists who operated in the United States, the study found that about 

two-thirds (59) committed immigration fraud prior to or in conjunction with taking part in 

terrorist activity. 

• Of the 59 terrorists who violated the law, many committed multiple immigration violations--

79 instances in all. 

• In 47 instances, immigration benefits sought or acquired prior to 9/11 enabled the terrorists to 

stay in the United States after 9/11 and continue their terrorist activities. In at least two 

instances, terrorists were still able to acquire immigration benefits after 9/11. 

• Temporary visas were a common means of entering; 18 terrorists had student visas and another 

four had applications approved to study in the United States. At least 17 terrorists used a visitor 

visa-- either tourist (82) or business (B I). 

• There were II instances ofpassport fraud and 10 instances of visa fraud; in tota134 individuals 

were charged with making false statements to an immigration official. 

• In at least 13 instances, terrorists overstayed their temporary visas. 

• In 17 instances, terrorists claimed to lack proper travel documents and applied for asylum, 

often at a port of entry. 

• Fraud was used not only to gain entry into the United States, but also to remain, or "embed," in 

the country. 

• Seven terrorists were indicted for acquiring or using various forms of fake identification, 

including driver's licenses, birth certificates, Social Security cards, and immigration arrival 

records. 

• Once in the United States, !6 of23 terrorists became legal permanent residents, often by 

marrying an American. There were at least nine sham marriages. 

• In total, 20 of21 foreign terrorists became naturalized U.S. citizens. 

D. Foreign-Born Individuals Remain a Significant Terrorist Threat 

There has been much emphasis in the past few years on a "homegrown" threat. Often the focus 

is on radicalized native born Americans. However, the Boston Marathon attacks remind us once 

more that "homegrown" can still mean foreign-born, with often those foreign-born having 

received significant immigration benefits. 

In taking a close look at the most signitkant terrorist events within the United States since 2009, 

the immigration violations and abuse of immigration benefits is remarkably similar. Most 

incidents in the past five years were committed by foreign-born individuals, not Americans. In 

fact, four of the 13 most notorious terrorism arrests since 2009 involved naturalized U.S. 
376 

S. 744 Kephart testimony 16 

citizens. Five cases involved native-born U.S. citizens, while eight involved foreign nationals (it 

appears the Boston Marathon bombing included two foreign-born brothers), all of whom had 

received multiple U.S. immigration benefits. What follows is not a comprehensive list, but it 

does reflect the most significant U.S.-based terrorist incidents since 2009. 

I !legal Over stays 

February 2012: Amine el-Khalifi, a 29-year-old Moroccan man arrested for an attempted 

suicide bombing two blocks from the Capitol building while exiting the parking garage at the 

Labor Department. He thought he had a suicide bomb vest and an automatic weapon. He had 

been living in the United States since he was 16 as an illegal immigrant, having overstayed his 

tourist visa by 13 years. 

September 2009: Hosam Smadi, a 19-year Jordanian illegal overstay by a year, attempted to 

detonate what he thought was a car bomb to destroy a 1.2 million-square-foot, 60-story Dallas 

office building. 

Multi-Entry Visa 

December 2009: Umar Farouq Abdulmutallab, a Nigerian with a multi-entry visa to the United 

States and prior travel into the country for a religious conference, detonated a malfunctioning 

explosive on board an international flight about to land in Detroit on Christmas Day. 

Legal Permanent Residents 

April 2013: Tamerlan Tsamaev, 26, the alleged bomber of the Boston Marathon who was killed 

during a manhunt during the early morning hours of April 19, and his brother Dzhokhar 

Tsarnaev (see below), are believed to have used two homemade bombs that killed three and 

injured about 175 individuals aged five to 78. Both had come to the United States I 0 years ago 

from Chechnya as refugees. Tamerlan was reportedly a legal permanent resident. U.S. law 

requires asylum and refugee applicants to mmJy for legal permanent residence within one year of 

arrival. 

September 2009: Najibullah Zazi, an Afghan legal permanent resident residing in the United 

States since 1999, conspired to conduct suicide bombings (with others) on four rush-hour New 

York City subway lines on or near the 9/11 anniversary. The conspiracy had operational support 

from AI Qaeda abroad and explosives materials were stockpiled. 

U.S. Citizens (Naturalized) 

April2013: Dzhokhar Tsarnaev, 19, reportedly a naturalized citizen at 18 who conspired with 

his brother, Tamerlan Tsarnaev (see above), to bomb the Boston Marathon. 

November 2010: Mohamed Osman Mohamud, a 19-year-old Somali-born U.S. citizen, 

attempted to detonate what he thought was a car bomb during a Christmas tree lighting ceremony 

in Portland, Ore. He had told undercover agents he had dreamed since he was 15 of a 

"spectacular fireworks show" where he hoped all would be dead or wounded. 
377 

S. 744 Kephart testimony 17 

October 2010: Farooque Ahmed, a Pakistani-born immigrant who grew up on Staten Island and 

became aU .S. citizen at 17, conspired to bomb four Metro subway stations near the Pentagon in 

Virginia- Arlington Cemetery, Pentagon City Mall, Crystal City, and Court House- and a 

Washington, DC, hotel. Ahmed had conducted extensive surveillance and drawn up plans. 

May 2010: Faisal Shahzad, a Pakistani-born U.S. citizen, detonated a "vehicle-borne explosive 

device" that malfunctioned in Times Square. He came to the United States in 1997 (likely on a 

tourist visa), but did not acquire a student F-1 visa until 1998. In 2002, he acquired an H-1 B 

worker visa. In 2004. in an arranged marriage in Pakistan, he wed a U.S. citizen of Pakistani 

descent. In 2006, he became a legal permanent resident and in April 2009, just before the 

terrorist attempt, he acquired citizenship. His American passport enabled him to attempt to flee 

the country in May without concern of jeopardizing his legal status or calling attention to himself 

while his naturalization application was still pending. 

U.S. Citizens (Native-Born) 

December 2010: Antonio Martinez, an Islamic convert, attempted to detonate what he thought 

was a car bomb in front of a military recruiting center near Baltimore, Md. 

November 2009: Nidal Malik Hasan, born to Jordanian immigrants of Palestinian descent, killed 

13 soldiers and wounded 43 others in a shooting spree at Fort Hood, Texas. 

October 2009: David Coleman Headley, of Pakistani descent, was arrested as a surveillance 

accomplice for the 2008 Mumbai (Bombay) terrorist attacks that killed over I60 people. 

September 2009: Michael Finton, an Islamic convert. attempted to detonate what he thought 

was a car bomb in front of a federal government building in Springfield, lll. 

June 2009: Carlos Bledsoe, an Islamic convert, killed one soldier and wounded another at a 

military recruiting station in Little Rock, Ark. 

E. A Note on Naturalization 

AsS. 744 seeks to legalize a large swath of the illegal population that eventually will be able to 

gamer legal residency, and about which many of whom the immigration system knows little or 

nothing, it is important to note that perhaps the most current and graphic example we may have 

of a failure to properly vet an individual may be that ofDzhokhar Tsamaev, the 19 year old just 

taken into custody in the Boston Marathon bombing. 

What requires emphasis is the ease with which terrorists have moved through the U.S. border 

system and obtained significant immigration benefits such as naturalization. The Boston 

Marathon is yet another example of how the security gaps that existed in 2001, in many 

instances, exist today. The younger Tsameav brother just received his naturalization a few 

months ago, on September II, 2012. Tsameav's older brother was a legal permanent resident 

known to the FBI for his terrorist sympathies. Both had come to the United States as children, 

aged 8 and 16, with families as refugees seeking asylum. At that point, the asylum system would 

not be aware of terrorist leanings. Perhaps there were none to be found. 
378 

S. 744 Kephart testimony 18 

However, ten years later at the age of 18, was there no way of learning ofTsarneav's terrorist 

intentions that may have been brewing before naturalization was granted? Would the fact that his 

brother had known terrorist tics and was interviewed by the FBI require a closer look by 

adjudicators ofTsarneav's naturalization application? Not likely. Immigration adjudications 

remain deeply stovepiped, a complicated problem where privacy issues and national security 

interests collide, sometimes to the detriment of national security. These issues remain 

unresolved today. 

F. A Note on Political Asylum 

The Boston Marathon terrorist attack bears in mind the special instances where political asylum 

enabled terrorists to legally embed while awaiting determination oftheir application, and work 

within !50 days. While the Tsarneav brothers responsible for the Boston attacks came as 

children of a family seeking asylum and thus it is not likely they would have sufficient intent to 

abuse the asylum system, the issue of asylum processing raises an important point in regard to 

those terrorists or terrorist affiliates who do embed in the United States by using the asylum 

system. 

While asylum processing may have been tweaked over the past few years, such processing has 

not been tweaked enough to deny and deport individuals with known terrorist affiliations. Take 

for example the case of a Syrian that law enforcement knew well had ties to at least five 9/1 I 

hijackers who remains in north Jersey and is now virtually immune from deportation. While 

400,000 people wait for U.S. citizenship, Daoud Chehazeh has received political asylum for a 

third time after a series of bureaucratic screw ups. According to news reports, it is well known in 

the law enforcement community that Chehazeh facilitated the moves and protection of the 9/11 

hijackers, including obtaining housing in Virginia for a few of them. Chehazeh had come from 

Saudi Arabia in 2000. He had no real job, and was closely associated with Anwar al-Awlaki--

who the President ordered killed with a drone in Yemen in September 201 I. Because of national 

security requirements, the immigration judge was unaware of Chehazch' s terrorist past and 

helped him fill out immigration applications. Secretary of Homeland Security, Janet Napolitano, 

when asked whether she would intervene to reopen the case and seek deportation, described the 

Chehazeh case as closed with "clarity and finality". These are the unfortunate mistakes that can 

take place with asylum claims where there is a national security concern. 

S. 744 provides that aliens who tile frivolous applications of asylum are still eligible for 

provisional status, completely overturning current immigration law that specifically states that 

aliens who knowingly make a frivolous application are permanently ineligible for any benefits 

under the Immigration and Naturalization Act. Someone like Chehazeh, who could have been 

deported, could use this S. 744 provision even if he lost out on asylum. Asylum applications are 

already extremely difficult for courts to make fair determinations due to the long standing abuse 

by those gaming the system to stay in the United States. Enabling frivolous filings to still obtain 

provisional status usurps the difficult and delicate process of asylum by rendering the claim 

almost unnecessary. 

S. 744 will also enable the President to classify not just individuals, but an entire community or 

group as refugees humanitarian reasons or if in the national interest, including tourism. The 

bill's language is unclear as the whether these individuals are required to be vetted through the 
379 

S. 744 Kephart testimony 19 

same scrutiny as regular asylum and refugee applicants. He can designate a whole group for 

humanitarian reasons or if in the national interest. While this provision may seem to be 

relatively innocuous, they are not. Under the rubric of9/11 Commission border 

recommendations which have held their value with time, each applicant-- fairly and equally 

should be scrutinized for risk in a manner that enables, in the balance of equities, for national 

security to remain a high priority. 

A few years ago, there were about 50,000 to 75,000 asylum cases are filed annually. In May 

2005, Congress passed The REAL ID Act. It includes provisions dealing with key aspects of 

U.S. asylum law. The law narrowly reforms our asylum procedures to better ensure that all 

courts better scrutinize asylum claims so that legitimate claims survive and fraudulent claims get 

thrown out. In 9/11 and Terrorist Travel, we discussed in some depth that terrorists like !993 

World Trade Center mastermind Ramzi Yousef (whose uncle is KSM) used political asylum 

claims effectively to get in and stay in the United States. Even with the revision of the law, 

immigration personnel who deal with asylum applicants must remain cognizant that those who 

claim political persecution in a country that the United States considers a high national security 

risk should receive extra scmtiny. 

There are a few reasons why these claims arc an excellent choice for terrorists. First, the claim 

itself keeps the applicant from a potential automatic removal or detention. Second, if an applicant 

for asylum (whether at a port of entry, a hard border, or in a court room) does not appear to pose 

a threat to public safety, the lack of detention space usually means the applicant is free to move 

about the United States. Third, often the only infonnation available to a judge is the word of the 

applicant without corroborating evidence, so fraudulent claims are easily made by those 

motivated to make them. For all of these reasons, political asylum claims usually permit 

terrorists to do what they seek: buy time to live here freely. 

On June !4, 2004, Nuradin Abdi was indicted in Columbus, Ohio, on four counts, including 

conspiracy to provide material support to a] Qaeda. In !999, Abdi had applied for and received 

asylum. Abdi was allegedly involved in a plot with the admitted al Qaeda member lyman Faristo 

blow up a Columbus shopping mall. In addition, Abdi allegedly received bomb-making 

instructions from a co-conspirator and had intended to travel to Ethiopia to receive training in 

guns, guerrilla warfare, and bombs at a military-style training camp. Federal investigators 

believe that the plot may have involved as many as five people. The three other men, unnamed, 

were truck drivers with Faris. 

Up through 2005, there were 16 other instances of political asylum being used to either prevent 

removal or deportation are as follows: 

* Kamran Sheikh Akhtar was detained in Charlotte, North Carolina while videotaping buildings 

there in July 2004. He entered the United States illegally through Mexico in December 1991 and 

claimed political asylum in 1992. Five years later, in 1997, the asylum request was denied. A 

month later, he sought to resist removal by filing for residency based on marriage to an 

American. In March 1998, he is found by an immigration judge to be removable and is given 

voluntary departure, but a month later the marriage petition secures a permanent residency.;D! 
380 

S. 744 Kephart testimony 20 

* Abdul Halim Hassan Al-Ashqar came to the United States on a student visa in 1989. He had 

received a scholarship through the U.S. government from the Thomas Jefferson Center "in order 

to complete my higher education in Business Administration" at the University of Mississippi. 

He was able to do so despite the fact that he had co-founded a university on the West Bank with 

Abu Marzook (eventually deported for his role as U.S. leader ofHamas) and Hamas founder 

Sheikh Ahmed Yassin. He had run public relations at that university for eight years prior to 

coming to the United States. Once in the United States, Al-Ashqar overstayed his visa and 

continued working for Barnas in a variety of functions. He was imprisoned for refusing to testify 

about Abu Marzook during a grand jury investigation. AI-Ashqar was then placed in deportation 

hearings himself, but claimed political asylum. The asylum claim was denied, but he fought that 

denial for six years in U.S. courts. In 2004, he agreed to voluntarily depart, but was instead 

indicted on RICO charges for running Hamas in the United States with Marzook. In January 

2005 announced he was an independent candidate for president of the Palestinian Authority. 

* Hesham Hedayet, who killed airline personnel at LAX on July 4, 2002, filed for political 

asylum in 1992 but ended up acquiring legal status through a diversity immigration lottery. 

* Rabih Haddad, a Lebanese citizen and a co-founder and chairman of the Global Relief 

Foundation (GRF), was arrested on December 14, 2001, the same day that its offices were 

raided. GRF's assets were frozen by the U.S. Treasury Department on December 14, 2001, for 

financially supporting al Qaeda. Also on December 14,2001, the government detained Haddad 

on a visa violation. Haddad was originally admitted to the United States in 1998 with the status 

of a non-immigrant visitor. His visa expired on August 31, 1999. Haddad was ordered deported. 

Despite a series of appeals and the filing of an application for asylum and withholding of 

removal, ip November 2002 an Immigration Judge concluded that he presented "a substantial 

risk to the national security of the United States." Haddad appealed again and was denied again, 

and on July 14, 2003, Haddad was deported to Lebanon. After his deportation, the Department 

oflmmigration and Customs Enforcement (ICE) issued a press release that reiterated GRF's ties 

to Wadi El-Hage and stated again that GRF was a Specially Designated Global Terrorist. 

* At least three people closely associated with the September II hijackers claimed political 

asylum, one that helped them obtain Virginia identification cards, and two other "friends." 

*Malek Mohamed Seit; a friend of9/11 hijacker Hanjour filed a false application for 

asylum and was indicted for social security, mail, and immigration fraud. 

* Eyad Mohammed Mohammed Mustafa helped 9/11 hijackers (unknowingly) to obtain 

VA 10 cards. He made a false claim of asylum during deportation in Ocober 2002. The 

application was denied and he was deported to Jordan. 

* Mohdar Abdullah was a friend of two 9/11 hijackers. He claimed political asylum 

defensively in 2000 after overstaying his visitor's length of stay by a year and a half. He 

was charged with fraud in November 2001 and was deported to Yemen in May 2004. 

Yemen. 

* Abdel Hakim Tizegha, an associate of the LAX Millennium plotters, claimed political asylum 

based on persecution by Muslim fundamentalists. He said he entered at Boston as a stowaway on 
381 

S. 744 Kephart testimony 21 

an Algerian gas tanker. Hearings were rescheduled five times. The claim was denied two years 

later, and then appealed. Nine months later his location was unknown. 

* Abu Mezer, responsible for the New York City subway plot in August 1997, was arrested in 

Washington state in January 1997 after his third attempt to illegally enter the United States. The 

next month, he applied for political asylum, denying an affiliation with Hamas. In July, he did 

not show up for his hearing. Instead, he called his attorney and stated he had married a U.S. 

citizen and was living in Canada. On Aug. I, 1997, he was arrested in New Y ark City based on 

an informant's tip. 

* Muin Mohammad (aka Muin Shabib, Kamel Mohammad Shabib, and Abu Muhammad) is one 

of the original founders of AAEF and is listed on the group's 1993 IRS Form 990 as the secretary 

of the AAEF Executive Committee. According to an FBI Action Memorandum, Muin Kamel 

Mohammed Shabib attended the October 1993 Harnas conference in Philadelphia along with 

Abdelhaleem Al-Ashqar and others. Documents submitted by the Department of Justice in 

HLFRD v. John Ashcroft show that Shabib was identified by the government of Israel as a senior 

Harnas operative formerly in charge ofHamas' Central Section (Rarnallah-Jerusalem) in the 

West Bank. 

On March 16, 1994, the FBI in Falls Church, Va., at the horne ofYasser Bushnaq, interviewed 

Shabib. During the interview, Shabib admitted supporting Hamas financially and politically. 

Shabib was interviewed under the pretext of gaining information relating to his immigration 

status (he had applied for political asylum in December 1993). 

* Faraj Hassan was arrested and charged with naturalization fraud in June 2004 after being 

granted refugee status from Syria in 1993. He worked for the Benevolence International 

Foundation that was considered a strong source of funding for AI Qaeda. 

*Three terrorists involved in the Feb. 26, 1993, World Trade Center bombing, Ramzi Yousef, 

Sheik Omar Abdel Rahman, and Biblal Alkaisi, all sought political asylum. Y ousef, mastermind 

of the bombing, was initially arrested with fraudulent travel documents upon entry at JFK 

International Airport in August 1992. Y ousef claimed political asylum and was released pending 

a hearing. Alkaisi, also a key witness in the Meir Kahane murder, filed for both "temporary 

protected status" using a fake birth certificate and fake immigration entry record in August 1991, 

and for political asylum in May 1992 falsely claiming a prior illegal entry. Sheik Rahman, who 

issued the fatwa for Anwar Sadat's assassination and was also convicted for his role as the 

spiritual leader of the 1995 conspiracy to bomb New York City landmarks, had a long history of 

immigration violations and fraud, including a March 1992 political asylum claim to prevent his 

pending deportation. 

* Mir Aimal Kansi, who killed two people outside CIA headquarters on Jan. 25, 1993, became 

an illegal overstay in February 1991. In February 1992, he simultaneously sought both political 

asylum and amnesty under a 1986 law. While the applications were pending, he was able to 

obtain a Virginia driver license and work as a courier. 

*Ibrahim Parlak of the Kurdistan Worker's Party applied for political asylum upon his arrival to 

the United States in 1991. In 1992, he was granted asylum and LPR status the following year. In 
382 

S. 744 Kephart testimony 22 

October 2004, he was charged with inciting terrorism and providing material support for terrorist 

activities. He was also charged with lying on his INS applications for failing to disclose his 

membershipin the Kurdistan Worker's Party along with his prior aggravated felon record from 

Turkey. 

Unfortunately, as made clear by the multiple appeals and despite law enforcement involvement 

in the 2013 asylum case ofDaoud Chehazeh, these 2005 findings of fact are still relevant today. 
383 

Statement by Chris Crane, President, 

National Immigration and Customs Enforcement Council 118 

of the 

American Federation of Government Employees 

Before the 

Senate Committee on the Judiciary 

April 22, 2013 
384 

Good afternoon Chairman and members of the Committee, 

I would like to begin by thanking the members of this committee who have 

met with me and expressed concerns for law enforcement and the needs of our 

officers. In particular I would like to say thank you to Ranking Member Grassley. 

Americans should understand that this legislation only guarantees legal 

status for illegal aliens. It contains no promise of solving our nation's immigration 

problems; no guarantee of stronger enforcement on our nation's interior, or its 

borders. It ignores the problems that have doomed our current immigration system 

to failure. 

I testify today without having the opportunity to read this bill in its entirety 

as the Gang of8's rush to pass this bill denies their fellow Americans the time and 

means of effectively studying the bill and adding input. 

This legislation was crafted behind closed doors with big business, big 

unions and groups representing illegal aliens groups with their own interests. 

Groups that stand to make millions from this legislation. Anyone with a 

significantly different opinion on immigration reform was prohibited by the Gang 

of 8 from having input. 

Lawmaking in our Nation has indeed taken a strange twist, as Senators invite 

illegal aliens to testifY before Congress, and groups representing the interests of 
385 

illegal aliens are brought in to develop our nations laws, but American Citizens 

working as law enforcement officers within our nation's broken immigration 

system are purposely excluded from the process by lawmakers and prohibited from 

providing input. 

Last week, desperate to be heard, Border Sheriffs, Interior Sheriffs, deputies 

and Immigration Agents all came to Washington, DC with the hope that the Gang 

of 8 would hear their concerns. They held two meetings on two separate days; not 

one member of the Gang of 8 attended. 

Last week, when I respectfully asked a question of the Gang of 8 at their 

press conference, I was escorted out by police and Senate Staff; I was spoken to 

with anger and disrespect. Never before have I seen such contempt for law 

enforcement officers and I have seen from the Gang of8. 

Suffice it to say, following the Boston terrorist attack, I was appalled to hear 

the Gang of 8 telling America that its legislation is what America's law 

enforcement needs. 

Since 2008, President Obama has ignored many of the immigration laws 

enacted by Congress, and has instead created his own immigration system that 

unlawfully provides protections for millions of illegal aliens. Of course, Congress 

has done nothing to stop the President, and I submit to everyone that America will 
386 

never have an effective immigration system, as longs as Presidents and their 

appointees are permitted to ignore the United States Congress and pick and choose 

the laws they will enforce, and indeed enact their own laws without Congress 

through agency policy. This bill does nothing to address these problems. In fact, 

unbelievably it gives far greater authority and control to the President and the 

Secretary ofDHS. Exactly the opposite of what our country needs to create a 

consistent and effective immigration system. If the laws enacted by Congress are 

not enforced by the Executive, America has no promise of future enforcement. 

That much is certain. 

• Currently at ICE, Immigration Agents have filed a lawsuit against DHS and 

ICE because both have refused to enforce the immigration laws enacted by 

Congress. 

• Agents cannot arrest individuals for entering the United States illegally, or 

overstaying a visa. 

• Agents are prohibited from enforcing laws regarding fraudulent documents 

and identity theft by illegal aliens. 

• Agents are not permitted to arrest public charges. 

• Agents are forced to apply the Obama dream act not to children in schools, 

but to adult inmates in jails. Releasing criminals back into communities-
387 

Criminals who have committed felonies, who have assault officers and who 

prey on children. 

• At an alanning rate, ICE deportation numbers have plummeted since 2008; 

evidence that interior enforcement has in large part been shut down. 

Contrary to reports by presidential appointees at ICE and DHS. 

In closing, my initial impression of this bill thus tar is that in large part it appears 

to have a lot of loopholes. Everything from Gang activity, to arrest records, to 

criminal backgrounds and fraudulent activities -at many levels are acceptable or 

waiver able under this bill. The entry exit system doesn't even utilize biometrics 

making it ineffective yesterday. We already know aliens are engaged in illegal 

activities that will bypass this system. 

At a time when Congress is proposing legalization for millions, I think 

Americans expected stronger enforcement across the board that would prevent 

another wave of illegal immigration. 

Unfortunately, in terms of enforcement and providing for public safety, I think 

this bill is going to fall short. In terms oflegalization and eventual citizenship for 

11 million illegal aliens I think its success is guaranteed. 

Thank you and that concludes my testimony 
388 

Why Less-Skilled Immigration and Amnesty 

are so Costly to Taxpayers 

Testimony Prepared for Senate Committee on the Judiciary 

April22, 2013 

by Steven A. Camarata, Ph.D. 

Director of Research 

Center for Immigration Studies 

1629 K Street NW, Suite 600 

Washington, DC 20006 

(202) 466-8185 

fax, (202) 466-8076 

sac@cis.org 

www.cis.org 
389 

Overview 

in the modern American economy those with relatively little education (immigrant or 

native) earn modest wages on average, and by design they make modest tax contributions. 

Because of their relatively low incomes, the less-educated, or their dependent children, are often 

eligible for welfare and other means-tested programs. As a result, the less-educated use more in 

services than they pay in taxes. This is true for less-educated natives, less-educated legal 

immigrants and less-educated illegal immigrants. There is simply no question about this basic 

fact. 

The relationship between educational attainment and netfiscal impact is the key to 

understanding the fiscal impact of immigrants, legal or illegal. Research that has focused on 

immigrants' net fiscal efjixt shows exactly what one would expect: on average those who have not 

completed high school and those with only a high school education are a significant net fiscal 

drain. while those with at least a college degree are, on average, a significant net fiscal benefit. 

In the case of illegal immigrants. the vast majority of adults have modest levels of education, 

averaging only 10 years of schooling. This fact is the primary reason they are a net fiscal drain, 

not their legal status. 

It must also be understood that use of welfare and work often go together. Of 

immigrant-headed households in using we(fare in 2011, 86% had at least one worker during the 

year. The non-cash welfare system is specifically designed to help low-income workers, 

especially those with children. There are also a number of other programs that provide assistance 

to low-income workers, such as the Earned Income Tax Credit and the cash portion of the 

Additional Child Tax Credit. Because low-income workers and theirfamilies can and do access 

welfare and other means-tested programs, and because they are taxed a relatively low levels, it is 

ve1y common for a worker, even a full-time worker, to be a significant a net fiscal drain. 

We may decide to amnesty illegal immigrants and/or continue to admit large numbers of 

less-educated immigrants through family-based immigration or a new foreign worker program. 

If we do this, however, we should at/east be honest with the American people, making it clear that 

such policies have a sizable negative impact on taxpayers. 

It is important not to see this situation as a mora/failing on the part of the less-educated 

(immigrant or native); rather, it simply reflect the realities of the modern American economy, 

coupled with the existence of a well-developed welfare state. In my view, immigration policy 

should reflect this reality. 

Key Findings of Research: 

The Pew Hispanic Center, the Center for Immigration Studies, and others have all 

estimated that about three-fourths of illegal immigrants have no education beyond high 

school.' 

• The National Research Council (NRC) estimated in 1996 that immigrant households (legal 

and illegal) create a net fiscal burden (taxes paid minus services used) on all levels of 

government of between $11.4 billion and $20.2 billion annually." 
390 

• At the individual level, excluding any costs for their children, the NRC estimated a net 

lifetime fiscal drain of -$89,000 (1996 dollars) for an immigrant without a high school 

diploma, and a net fiscal drain of -$31,000 for an immigrant with only a high school 

education. However, more educated immigrants create a lifetime net fiscal benefit of 

+$! 05,000.ll! 

• Updated to 2013 dollars the NRC net lifetime fiscal drain for an immigrant with less than a 

high school education would be -$132,000 while the drain for an immigrant with only a 

high school education would be -$46,000. 

• A 2007 study by the Heritage Foundation estimated that households headed by immigrants 

without a high school education received $19,588 more in direct and indirect benefits than 

they paid in taxes each year.iv 

• In another 2007 study, Heritage also found that the fiscal drain caused by all households 

headed by someone without a high school diploma (immigrant and natives) was very 

similar to the drain for households headed by immigrants with this level of education. 

This is an indication that it is the education level that creates the drain, not whether the 

household head is immigrant.v 

Figure I at the end of this testimony illustrates the importance of education. For example, it 

shows that 59% of households headed by an immigrant who has not graduated high school 

access one or more welfare programs, and 70% have no federal income tax liability. In 

contrast, 16% of households head by an immigrant with bachelor's degree access welfare 

and only 21% had no federal income tax liability. 

• Figure 2 shows welfare use and tax liability for native-headed households by education 

level. Like Figure I, the results in Figure 2 show the enormous implication of education 

when thinking about fiscal impacts. 

• Table I provides additional information by education and length of residence in the United 

States. It shows that a large share ofless-educated immigrants struggle in the United States 

in terms of income, poverty, health insurance coverage, welfare use, or language ability. 

This is the case even when they have lived in the country for 20 years. 

• The table also shows that immigrants with a bachelor's degree generally do quite well in 

the United States. Even newly arrived, well-educated immigrants generally prosper. 

• In a study I authored for the Center for Immigration Studies (CIS), we found that in 2002 

illegal immigrant households imposed costs of$26 billion on the federal government (state 

and local governments were not included) and paid $16 billion in federal taxes, creating an 

annual net fiscal deficit of $10.4 billion at the federal level, or $2,700 per household." 

• If illegal immigrants were legalized and began to pay taxes and use services like 

households headed by legal immigrants with the same education levels, CIS estimates that 

the annual net fiscal deficit would increase to $29 billion, or $7,700 per household at the 
391 

federal level. v" 

• Illegal immigrants with little education are a significant fiscal drain, but less-educated 

immigrants who are legal residents are a much larger fiscal problem because they are 

eligible for many more programs. For this reason amnesty increases costs in the long run. 

Counterarguments 

There is a pretty clear consensus that the fiscal impact of immigration depends on the 

education level of the immigrants. Certainly other factors also matter, but the human capital of 

immigrants, as economists like to refer to it, is clearly very important. There is no better predictor 

of one's income, tax payments, or use of public services in modern America than one's education 

level. The vast majority of immigrants come as adults, and it should come as no surprise that the 

education they bring with them is a key determinate of their net fiscal impact. 

Advocates of amnesty and allowing in large numbers of less-educated immigrants have 

three main responses to the above analysis. First they argue that less-educated immigrants are no 

worse in terms of their net fiscal impact than less-educated natives. Second, they argue that 

examining households overstates the costs because it includes the U.S.-born children of 

immigrants. Thirdly, they argue that less-educated immigrants, and immigrants generally, create 

large economic benefits that offset the fiscal costs they create. As will be discussed below, none 

of these arguments holds much water. 

Claim: "Less-educated immigrants are no worse than less-educated natives." As I 

have emphasized in the discussion above, and as the figures and table below make clear, both 

less-educated natives and less-educated immigrants are likely to be significant fiscal drain. But 

this observation is largely irrelevant to the immigration debate. What matters is the actual fiscal 

impact of immigrants not whether that impact is similar to similarly-educated natives. 

Immigration is supposed to benefit the country. As a sovereign country we have a right to 

select well-educated immigrants if we think that makes sense for our country. We also have a right 

to enforce our law against illegal immigration. In contrast, less-educated natives are here and it is 

their birth right to remain. Their low income or high use of welfare is certainly a concern. But 

common sense suggests that we do not want to add to the concern through immigration. Put 

simply, the fiscal drain created by less-educated natives does not in any way justify allowing into 

the country less-educated immigrants. Of course, there may be other arguments to allowing in 

less-educated immigrants. 

Claim: "Children should not count." Advocates for high immigration often object to 

doing analysis by households because it includes the U.S.-born children of immigrants. They 

argue that the costs for education, welfare, and other programs that benefit children should not be 

counted because these children are not immigrants. (More than 80 percent children in immigrant 

households are U.S.-born.) Of course such an argument ignores the fact that the child would not be 

here but for their parents having been allowed into the country. Further the critics argue that 

someday the child will grow to adulthood and pay back these costs. This may or may not tum out 

to be true, but it does not change the very real costs created in the present. 

First, the NRC study cited above did individual level analysis, excluding U.S.-born 
392 

children, and still found a large fiscal drain if the original immigrant arrived without a high school 

education or with only a high school education. In other words even without the children, there 

was still a significant net fiscal drain from less-educated immigrants. 

Second, it is not clear that an individual rather than a household-level fiscal analysis makes 

sense. At the very least it is difficult to do accurately because tax liability and eligibility for 

means-tested programs are based on the ineome and number of dependents in a household. 

Although the Cato Institute today is critical of the idea of doing household-level analysis, the late 

Julian Simon, who was a scholar at the Cato Institute and helped shape the institute views on 

immigration, thought that individual level analysis did not make sense. In a 1984 article Simon 

was clear that to evaluate the fiscal impact of immigration one had to examine both the immigrant 

and the family "he brings or acquires." He states, "One important reason for not focusing on 

individuals is that it is on the basis of family needs that public welfare, Aid to Families with 

Dependent Children (AFDC), and similar transfers are received." For this reason Simon examined 

families, not individuals. This is very similar to a household-level analysis. As Simon himself 

observed, the household "in most cases" is "identical with the family."VI" 

Support for a household-level analysis is very common among academics. The National 

Research Council states that the, "household is the primary unit through which public services are 

consumed and taxes paid", in their analysis of the fiscal impact of immigrants. ln their study of 

New Jersey, Deborah Garvey and Princeton University professor Thomas Espenshade also used 

households as the unit of analysis because as they pointed out, "households come closer to 

approximating a functioning socioeconomic unit of mutual exchange and support."" Harvard 

University professor and labor economist George Borjas and economist Lynette Hilton, in their 

1996 study of immigrant welfare use also examined households.x The Census Bureau itself has 

reported welfare use for immigrants and natives by household." Household-level analysis 

makes sense because a child can only be enrolled in Medicaid or free/reduced school lunch if the 

total income of his or her family or household is below the eligibility threshold. Moreover, many 

welfare benefits can be consumed by all members of the household such as food purchased with 

food stamps. 

On a more practical level, the costs created by children are quite real for taxpayers. Any 

hoped-for fiscal benefit these children may or may not create in the future is a long way off and 

unknown, while the current costs are real and must be paid. 

Finally, it must be pointed out that ifthe critics are correct-that children should not count 

-then the same must be true for native-headed households. But if programs and benefits that go 

to children are excluded, a large share of the federal current budget deficit does not exist. 

Similarly, if education is not counted then most state and local governments are flush with money. 

Of course, such a conclusion is total nonsense. Taxpayer money spent on children is real and 

significant. 

Suggesting that money spend on the children of immigrants or children, generally, should 

not be counted as real cost is completely contrary to common sense. This type of argument only 

obscures the issue and not is unhelpful when thinking about the costs and benefits of immigration. 

Claim: "Economic benefits offset Fiscal Costs." This argument takes several forms but 

the idea is that immigration increases the income of natives and this offsets the fiscal costs 

immigration creates. The National Research Council study mentioned above is the only study of 

which I am aware that tried to measure both the economic and fiscal impact of immigration. That 

study concluded that the economic gain to the native-born, which is referred to by economists as 
393 

the "immigrant surplus", was $1 billion to $10 billion a year in 1996. At the same time the NRC 

estimated that the net fiscal drain (taxes paid, minus services used) from immigrant households 

was negative $11 billion to $20 billion a year. Thus, there was an economic benefit, but it was 

smaller than the fiscal drain. 

Recently some immigration advocates have argued that the Gang of Eight immigration 

plan will result in significant net gains for public coffers based on the idea of"dynamic scoring" or 

"dynamic analysis.'' Chief among them has been Sen. John McCain's former economic advisor, 

Douglas Holtz-Eakin. Mr. Holtz-Eakin lays out his argument in an opinion piece published by 

the American Action Forum, which he heads." 1 He also recently testified before this very 

committee. 

I have provided a much longer critique of his arguments elsewhere.' 111 Below I touch on 

some the main problems with his formulation. 

The central point of Holtz-Eakin's "dynamic analysis" is to argue that 

immigration-induced population growth by itself will have a positive, indirect impact on per capita 

GDP, thereby benefiting public coffers. The few studies he cites to support this argument do not 

deal with immigration; it is theoretic work suggesting a relationship between a larger population 

and positive economic outcomes. It is not at all clear whether this work is even relevant to 

immigration-induced population growth. 

Probably the biggest weakness of his analysis is that he ignores the actual characteristics of 

immigrants, generally, and illegal immigrants, in particular, factors which bear directly on their 

fiscal impact. This includes relatively high poverty, welfare use, lack of health insurance, and their 

more modest tax payments (See Table l, below). Holtz-Eakin even ignores the research indicating 

that the education level of immigrants at arrival has direct bearing on their income, tax payments, 

use of public services, and their resulting net fiscal impact. 

He further ignores the economic literature focusing on immigration's economic impact 

which shows that immigration does not significantly increase the per capita GDP or income of the 

existing population. As the nation's leading immigration economist, George Borjas of Harvard 

points out in a recent paper, "Although immigration makes the aggregate economy larger, the 

actual net benefit accruing to natives is small, equal to an estimated two-tenths of l percent of 

GDP."XIV 

A larger economy from immigration is not a richer economy, though it is not a poorer one 

either. It may also be worth noting that to generate these tiny gains immigration has to redistribute 

income. In the United States, the workers who lose from immigration tend to be the least-educated 

and poorest workers, who very likely have to use more government services as their income 

declines. 

The above mentioned NRC study came to the same conclusion as Borjas- immigration's 

main impact is to redistribute income. The study estimated that the economic benefit from the 

redistribution created by immigration was at most $10 billion, one- to two-tenths of I percent of 

GDP at the time of the study. This is very similar to the Borjas estimate and it is very far from the 

kinds of per capita gains Holtz-Eakin asserts in his article. 

In addition to ignoring the immigration research, Holtz-Eakin also ignores the literature 

that looks at the impact of population growth on per capita income in developing countries, which 

would appear to be directly related to his argument. That research generally does not support the 

idea that by itself population growth increases per capita GDP. A 2009 review of29 different 

studies on the impact of population growth on economic development concludes: "Particularly 

strong is the evidence in support of the increasingly adverse effects of population growth in the 
394 

post-1980 period."xv Maybe he feels that this work is not relevant to developed countries like the 

United States. But he does not say so. 

Holtz-Eakin's argument is highly speculative. He completely fails to mention the fiscal 

impact of legalizing illegal immigrants even though this issue is at the center of the immigration 

reform debate. 

Conclusion 

If you take nothing else away from my testimony, it should be remembered that it is simply 

not possible to fund social programs by bringing in large numbers of immigrants with relatively 

little education. This is central to the debate on illegal immigration given that such a large share of 

illegal immigrants have modest levels of education. The fiscal problem created by less-educated 

immigrants exists even though the vast majority of immigrants, including illegal immigrants, work 

and did not come to America to get welfare. The realities of the modem American economy 

coupled with the modern American administrative state make large fiscal costs an unavoidable 

problem of large scale, less-educated immigration. 

This fact does not reflect a moral defect on the part of immigrants. What it does mean is that we 

need an immigration policy that reflects the reality of modern America. W c may decide to let 

illegal immigrants stay and we may even significantly increase the number ofless-educated legal 

immigrants allowed into the country. But we have to at least understand that such a policy will 

create large, unavoidable costs for taxpayers. 
395 

8 

Figure 1. Education Has Enormous Fiscal Implications 

11 Share using welfare Share with no federal income tax liability 

All Immigrant Households by Education of Head 

51% 

less than High school 

1 high school only 1 

I 

37% 

Some 

college 

3/4 of illegal households 

have this education level 

21% 

Bachelor's 

or more 

35% 

All Native 

Households 

Source: Public use file of the March 2011 Current Population Survey. Welfare programs include 

SSI, TANF. food stamps, WlC, free lunch, public/subsidized housing and Medicaid. 
396 

9 

Figure 2. Education Has Enormous Fiscal Implications 

• Share using welfare Share with no federal income tax liability 

All Native Households by Education of Head 

70% 

Less than 

high school 

45% 

High school 

only 

34% 

Some 

college 

15% 

Bachelor's 

or more 

44% 

All 

Immigrant 

Households 

Source: Public use tile of the Marcb 2011 Current Population Survey. Welfare programs 

include SSI. TANF, food stamps, WI C. free lunch, public/subsidized housing and Medicaid. 
10 

The underlying reason both amnesty and letting Illegal Immigrants stay is so costly 

Important Fact 1: Half of illegal immigrants haven't graduated high school. One-fourth have only a high school educatImportant Fact 2: Less-educated Immigrants make progress the longer they live in the U.S., but this progress still leave

dramatically poorer, and much more likely to use welfare and be uninsured than the average native-born American. 

z; 'ii :. <6• ,; ..... ' 

Only 

Without English or 

Average Total In or near Health speak$ it Welfare Hom

Income Poverty Poverty Insurance very well U$e Owners

All Native $ 36,073 11.8% 28.7% 15.5% 98.6% 22.8% 6

Education Immigrant $ 29,152 18.9% 42.4% 34.4% 46.9% 36.3% 5

levels Recent immigrants s 5 Yrs $ 20,463 28.3% 50.9% 44.3% 34.8% 30.6% 1

Immigrant in US 20 Yrs. $ 31,214 17.7% 41.7% 34.3% 46.8% 42.5% 5

Less Than Native $ 13,746 28.6% 57.8% 22.5% 95.4% 48.1% 5

High Immigrant $ 14,878 31J% 66.0% 49.1% 18.9% 58.8% 4

School Recent immigrants s 5 Yrs $ 10,461 41.3% 70.9% 60.9% 11.8% 55.8% 1

Immigrant in US 20 Yrs. $ 16,605 30.0% 66.2% 47.6% 19.2% 63.2% 4

High Native $ 25,631 14.0% 35.8% 19.8% 98.7% 28.2% 6

School Immigrant $ 20,449 20.0% 46.7% 40.7% 42.2% 41.8% 4

Only Recent immigrants s 5 Yrs $ 14,593 30.9% 57.8% 56.9% 24.3% 42.9% 1

Immigrant in US 20 Yrs. $ 21,658 19.1% 45.1% 39.3% 43.6% 49.2% 4

Native $ 30,662 10J% 27.2% 16.0% 99.0% 23.7% 6

Some Immigrant $ 26,697 13.1% 33.0% 28.4% 63.5% 29.8% 5

College Recent immigrants s 5 Yrs $ 17,071 27.3% 50.3% 38.4% 46.2% 26.4% 1

Immigrant in US 20 Yrs. $ 26,708 11.5% 31.6% 30.3% 64.5% 35.6% 5

Native $ 61,851 4.2% 11.5% 7.6% 99.3% 8.8% 7

Bachelor's Immigrant $ 55,534 7.4% 18.2% 15.8% 72.7% 16.3% 6

or more 

Recent immigrants s 5 Yrs $ 34,123 17.1% 31.1% 25.8% 58.9% 14.4% 1

lmJ11igrant in US 20 Yrs. $ 62,456 6.4% 10.4% 16.3% 73.1% 21.0% 6

With the exception of language and home ownership, all figures are from a Center for Immigration Studies analysis of the public use March 2011 Current Population Surv

Home ownership and language skills are based on a Center for Immigration Studies analysis of the public use 2010 American Community Survey. Poverty, income, and 

insurance figures are for adults only. Welfare use and home ownership are based on the nativity of the household head. Welfare programs include TANF, SSI, WJC, foo

stamps, free/reduced lunch, public/subsidized housing and Medicaid. 
II 

' A Pottrait of Unauthorized Immigrants in the United States. 2009. Jeflrcy S. Passel D'Vera Cohn Pew Hispanic Center hllp://www.pewhispanic.org/filcs/repotts/l07.p

"Immigrants in the United Slates, 2010: A Protlle of America's Foreign-Born Population" 2012 Steven A. Camarata Center for Immigration Studies " The National Research Council's 1997 report is report entitled. The New Americans: t'conomic, Demographic, and Fiscal Effects of immigration A summary of the 

findings can be t(,und at www.cis.org/articlesll999/combinednrc.pd[ 

w Sec end note i i. 

"' "The Fiscal Cost of Low-Skill Immigrants to the U.S. Taxpayer" 2007 Robett Rector and Christine Kim 

http://www.heritage.org/research/reports/2007/05/the-tiscal-eost-of-low-skill-immigrants-to-the-us-taxpayer 

' "The Fiscal Cost of Low-Skill Households to the U.S. Taxpayer" 2007 Robert Rector. Christine Kim and Shanea Watkins. Ph.D. 

http://www .heritage .org/ resca rch/ reports/2 007 /04/thc-ti seal-cost -o t~lo w-sk iII-ho useho Ids-to-the-us-taxpayer 

" The High Cost of Cheap Labor Illegal Immigration and the Federal Budget. 2004 Steven A. Camarota http://www.cis.org/articles/2004/tiscal.pdf 

Vll See endnote vi. 

"" "Immigrants. Taxes, and Welfare in the United States 1984. Julian L. Simon Population and Derelopment Rerie11·. Vol. 10. No. I (Mar.. 1984). pp. 55-69 on))) " "State and Local Fiscal Impacts of New Jersey.'" in Keys to Successful immigration: Implications of the New Jersey Experience, Thomas .1. Espenshade, ed., Washing

Urban Institute Press, p. 143. 

' George J. Borjas and Lynette Hilton, "Immigration and the Welfare State: Immigrant Participation in Means-Tested Entitlement Programs,"' Quarterly Journal of Econo

1996. 

"The Census Bureau rep01ts welfare use by household based on the nativity of the household head. See. tor example. Figures 20-1.20-2 and 21-3 in ·'Prolile of the Fore

Population: 2000, .. pp. 23-206. U.S. Census Bureau. December 200 I. h11Jl:.':""" .ccnsus.~o1 ;prod '2002pubsip23-206.pdf. 

"' Douglas Holtz-Eakin, "Immigration f{cfi!rm. Economic Growth. and the Fiscal Challcn~c", April 

20 I 3 .http:// americanacti on tc1rum .org/ sites/ de fa u It/ tiles/1m m igration%2 Oand%20the%20 Economy %2 Oand%2 0 Bud get. pdf 

"" ·'Dynamic Scoring oflmmigration? A Critique of Douglas Holtz-Eakin's Analysis" 2013, Steven A Camarata Center for Immigration Studies. http://eis.org/dynamic-scoring-of-immigration 

xtv See ",lmrni2ration and the AmeriL'an \V_orker A RcYiew ol'thc Academic fjteralun: 11 , 2013 Center for Immigration Studies. 

" ··The EW:ct of Population Gro\\th on Economic Gro;vth: A Meta-Regression Analysis of the Macroeconomic Literature" 2009. Derek D. Headey and Andrew Hodge 

and Development Review, VoL 35, No.2. 
399 

Written Testimony of Grover Norquist 

President 

Americans for Tax Reform 

Before the United States Senate 

Committee on the Judiciary 

April 22, 2013 

Chairman Leahy, Ranking Member Grassley, and Members of the Committee, my 

name is Grover Norquist, and I am President of Americans for Tax Reform (ATR). 

ATR is a nonprofit advocacy organization that promotes free market principles 

and a fiscally conservative approach to public policymaking. 

Mr. Chairman, people are an asset, not a liability. America is the most immigrantfriendly country in the world, and we are the richest country in the world. This is 

not a coincidence. Those who would make us less immigrant-friendly would 

make us less successful, less prosperous, and less American. 

Now, how do we evaluate the specific legislation before the Senate? The Border 

Security, Economic Opportunity, and Immigration Modernization Act of2013's 

stated aim is to uphold America's tradition of strengthening its economy by 

maintaining its openness to immigrants. 

Dynamic Analysis: A Conservative Consensus 

The consensus conservative, free market approach to evaluating any public 

policy change is to do so dynamically. Dynamic scoring takes into account both 

the costs and benefits of any policy change. Specific to immigration, providing a 

tough but fair pathway to legal status for America's undocumented population 

while facilitating a adequate future flow of legal immigrants will increase the 

size and productivity of our workforce and thus lead to accelerated economic 

growth for all Americans. 

Wall Street Journal editorial board member Jason Riley made the case for 

dynamic scoring in his 2008 book: 

Supplysiders have for decades been critical of the way federal agencies 

like the Congressional Budget Office and the Joint Committee on Taxation 

estimated, or "scored," the effects of tax cuts on revenue without figuring 

in their effects on the overall economy. And rightly so. Under static 

modeling, for instance, if a state doubles its cigarette tax, it will double its 

revenue from that tax. But that doesn't take into account, as a dynamic 

model would, the fact that the tax increase will affect behavior. Some 

smokers, for example, may quit or smoke less. The tobacco taxes they 

previously paid would be lost to the state, offsetting some of the 
400 

Jlf,~~1~~ Page 2 of9 

additional revenue anticipated by increasing the tax rate. Similarly, a tax 

cut might not result in a revenue reduction if it stimulates more economic 

activity.l 

Riley also provides a history of conservative policy organizations driving the centerright consensus on dynamic scoring: 

Along with other conservative outfits like the National Center for Policy 

Analysis and the Institute for Policy Innovation, [the Heritage Foundation] 

helped pioneer the use of dynamic analysis. Whether the issue was trade 

liberalization or tax policy, free-market conservatives regularly mocked 

economic studies that took into account only static impacts. "[No] matter how 

many times a 'static' analysis is disproved," Heritage Foundation president Ed 

Feulner once wrote, "Congress keeps doing business in the same wrongheaded 

way." When President Bush's 2007 budget proposal included a plan to create a 

Dynamic Analysis division inside the Treasury Department to assess how tax 

laws affect economic activity, William Beach, Heritage's top numbers cruncher, 

praised the move. "Inside the Beltway, this type of work is called 'dynamic 

analysis,"' Beach wrote in Business Week. "Outside the Beltway, this is called 

'economics."'z 

Indeed, any sound conservative evaluation of public policy changes must include an 

accounting of the legislation's costs and benefits. Conservatives do not consider tax cuts 

statically, because of behavioral changes that result when we incentivize work and 

investment. That dynamic increase in economic activity that takes place when the 

government loosens its grip on the private sector leads to more revenue than a static 

projection would suggest. 

A number of conservative and free market organizations and leaders have added their 

voices to the debate, speaking to the importance of dynamic analysis. 

Recently departed Heritage Foundation President Ed Feulner put forth a convincing 

argument about the flaws of static scoring: 

Indeed, some lawmakers are fighting a proposal that would require them to 

take real-world considerations into account. They prefer to keep "scoring" each 

bill-estimating how it will affect the economy and the amount of taxes they take 

in-with the "static" model used by the store owner's friend. If, say, a 5 percent 

tax on something brings in $50 million, they assume a 10 percent tax will fetch 

$100 million. 

Not surprisingly, this approach has caused lawmakers to come up with some 

wildly inaccurate assumptions over the years. Consider what happened with 

President Kennedy's tax cut. Many lawmakers were sure that, with the top 

marginal tax rate being slashed from 91 percent to 70 percent, tax revenues 

would plunge. Instead, the cut spurred economic growth. Between 1961 and 

1968, tax revenues rose by one-third. 

1 Riley, Jason. Let Them In, The Case for Open Borders. New York: Penguin. 2008. 

'Ibid. 
401 

A,}.J:ERICANS Page 3 of9 

/?/TAX REFORM 

The same thing happened when President Reagan cut taxes in the early 1980s. 

Many lawmakers predicted financial ruin as the top rate plummeted from 70 

percent to 28 percent. Again, they were wrong. Once the cuts were phased in, 

tax revenues soared. The amount of money the federal government was taking 

in through personal income taxes had increased 28 percent (adjusted for 

inflation) by 1989. 

Yet no matter how many times a "static" analysis is disproved, Congress keeps 

doing business in the same wrong-headed way. 3 

Newt Gingrich and Peter Ferrara criticized the static analyses of the Congressional 

Budget Office, Office of Management and Budget, and joint Committee on Taxation 

thusly: 

The methodologies used by analysts across the federal government to score the 

impact of legislation still do not take into account the dynamic, pro-growth 

effects of policy changes. They continue to use mostly static methodologies that 

assume no significant changes in behavior in response to changes in incentives. 

The result of these antiquated scoring practices is that Congress is forced to 

discount any policy change that would increase economic growth or enhance 

efficiency in federal programs. Instead, Congress is constrained to consider 

legislation designed to meet a politically acceptable score from the CBO, even 

though experience demonstrates that the scoring will surely be erroneous --

indeed, is effectively designed to be so. 4 

Americans for Prosperity (AFP), the conservative advocacy group, argued: 

CBO's current static scoring system fails to account for behavioral changes that 

individuals, households, and firms make in response to new economic policies. 

This makes tax increases look better and tax cuts look worse than they actually 

are ... 

Adjusting to dynamic scoring accounts for these (behavioral) changes and 

provides better cost estimates for Congress to weigh its decisions. 5 

Other free market institutions such as the Club for Growth, Freedom Works, the Cato 

Institute, and the National Taxpayers Union have been broadly supportive of dynamic 

scoring. This is a consensus issue in the center-right policy community. 

Dynamic Scoring Specific to the Immigration Debate 

To score legislation dynamically we need to understand its impact on the economy first. 

The broad issue of dynamic scoring applies specifically to immigration reform because 

immigrants increase both the supply and demand sides ofthe economy. On the supply 

3 Feulner, Ed,..in. Less "Static," Please. Heritage Foundation blog. July 22, 2002. 

http: I I www. heritage. org I research I comm en tan• I 2002 I oz!l ess-sta tic-pi ease. 

< Gingrich, Newt and Ferrara, Peter. Doesn't Anyone Know the Score? Wall Street Journal. September 

26, 2005. http: /lonline.wsi.comlarticle1SB11277008ogo855179'3.html. 

s Americans for Prosperity Foundation. Inside the Congressional Budget Office: Static vs. Dynamic 

Budget Scoring. November, 2011. 

http: 1/ameriransforprospcritvioundation.comlfilesiNtK 19 Statie Dynamic Sroring.pdf. 
402 

A,.).J.ERICANS Page 4 of9 /"'I TAX REFORM 

side, immigrants work and thereby increase economic production and the productivity 

of Americans. Because immigrants have different skills, they are complements rather 

than competitors to the vast majority of Americans. On the demand side, immigrants 

purchase and rent goods, services, and real estate produced by other Americans, thus 

incentivizing production. 

Immigrants and Americans, in the face of such changes, do not respond statically. Both 

groups change their behavior in response to incentives, and it is incumbent upon us to 

measure the economic effects of these behavioral changes dynamically. For instance, 

immigrant incomes increase over time just as incomes increase during the working life 

of Americans. After the legalization of immigrants during the Reagan amnesty, their 

incomes rose by an average 15 percent just by gaining legal status, Those immigrants 

today are making much more than they did then and, as a result, paying more in taxes. 

In response to immigration, Americans also increase their investments in machines and 

capital to invest in a faster growing and productive workforce. Those are just two 

changes but they illustrate the magnitude of dynamic changes to the economy. Since 

both the supply and demand sides change in relation to each other, we have to use a 

dynamic scoring process to accurately estimate the broad effects. 

The broader economic impacts are gigantic. A 2009 study prepared for the Cato 

Institute by economists Peter Dixon and Maureen Rimmer employed a dynamic 

economic model called USAGE to estimate the effects of changes in the US economy 

due to an immigration policy change very similar to to day's Senate legislation. It found 

that the incomes of U.S. households would increase by $180 billion dollars a 

year. Increased legal immigration will add millions of consumers, workers, renters, and 

others who will make our economy larger by working with Americans to produce more 

of the goods and services we demand. 

Another similar study commissioned by Cato and written by Professor Raul HinojosaOjeda of UCLA employed a similar analysis using a dynamic model called 

the GMig2. The study found that an additional $1.5 trillion in GOP growth would occur 

ten years after immigration reform similar to the Senate's plan. 6 

As a comparison, Professor Hinojosa-Ojeda ran a simulation on the GMig2 model 

whereby immigration reform was instead replaced by an effective enforcement-only 

policy that produced the mass removal of all illegal immigrants -a policy desired by 

immigration restrictionists. The result of that simulation was a $2.6 trillion decrease in 

estimated GOP growth over the same decade.? 

Most recently, American Action Forum President Douglas Holtz-Eakin, former Director 

of the Congressional Budget Office, authored a dynamic study on the economic impact 

of immigration reform. While not specifically related to the legislation before us today, 

Holtz-Eakin's study measures the costs and benefits of a "benchmark immigration 

6 Peter B. Dixon and Maureen T. Rimmer. Restriction or Legalization? Measuring the Economic 

Benefits of Immigration Reform. Cato Institute, Trade Policy Analysis #40, August 13, 

2009. http://www.cato.org/publications/trade-policv-analysis/restriction-or-legalization-mcasuringcconomic-benefits-immigration-reform. 

7 Raul Hinojosa-Ojeda. The Economic Benefits ofComphensive Immigration Reform. Cato Journal 

VoL 32, No.1, Winter 2012. http://www.cato.org/sites/cato.org/files/seril!)s/files/<;;itQ:: 

journal/2o!2Jjjcjc;zn1-12.pdf. 
403 

A).""vRICANS Pa_ae 5 o'9 /l'fTAX REFORM -' J 

reform," concluding that significantly increasing legal immigration would boost GDP 

growth by 0.9 points annually. B 

Holtz-Eakin's findings are primarily driven by immigration's impact on the size of the 

labor force. He writes: 

The mechanics of reform and the research literature suggest that immigration 

reform can raise the overall pace of population growth- indeed, in the absence 

of immigration, low birth-rates mean that the U.S. population will actually 

shrink. Because foreign-born individuals tend to have higher rates oflabor force 

participation, this translates into an even more rapid pace of growth in the 

labor force. At historic rates of population growth, this immediately translates 

into more rapid overall growth in Gross Domestic Product. 9 

Additionally, Holtz-Eakin cites the entrepreneurial vigor associated with immigrants as 

further evidence that more immigration will lead to higher rates of economic growth. 

This assertion is supplemented by the Kauffman Foundation, which found that 

immigrants in 2011 were twice as likely as native-born Americans to start a new 

business. 10 

Immigrants and Productivity Gains 

To get a sense of how the productivity oftoday's undocumented workers might 

increase once they have earned legal status, imagine the converse. If your siblings or 

your children were denied the ability to have a driver's license and therefore fly on 

airplanes or drive themselves to and from work, how productive would they be? How 

would their income suffer? How many career opportunities would they be denied? 

Allowing undocumented workers to move from job to job, travel easily and safely, 

search out and interview for different jobs in different sectors and locations would 

greatly increase their productivity, and they would become greater contributors to their 

own well-being and the wealth of our nation. 

The majority of those undocumented immigrants currently here are low-skilled. Some 

argue that we should not be importing or legalizing this type of talent. But in reality, the 

U.S. economy demands an enormous number of low-skilled workers. They work in 

construction, retail, hospitality, food preparation, agriculture, manufacturing, and other 

industries. But the domestic labor supply is inadequate for these types of jobs. We need 

immigrant labor to fill demand for low-skill jobs. 

For evidence of this, see the economic consequences of Georgia's House Bill87, passed 

in 2011. Similar to harsh enforcement-first measures passed recently in Alabama and 

Arizona, HB 87 was intended to eliminate the supply of illegal immigrant labor in the 

8 Douglas Holtz-Eakin. Immigration Reform, Economic Growth, and the Fiscal Challenge. April, 

2013c 

l.illil.;_llamed<:~nactionforumcorg/sites/default/files/Immil>ration%20and%20the%20Economy%20a 

nd%~olludgetcpdf. 

9Ibid. 

10 Robert Fairlie. Kauffman Index of Entrepreneurial Activity. Kauffman Foundation, March 2012, 

page g. http://www.kauffmancorg/uploadedFilcs/KIEA 2012 reportcpdf. 
404 

Jl,Mi§1~M;i~ Page 6 of9 

state by imposing strict penalties on undocumented immigrants and the businesses that 

hired them. 

The problem with HB 87 is that it worked. Undocumented immigrants fled the state in 

droves, and left a crippled agricultural industry behind them. Labor shortages led to 

$140 million in agricultural losses, with crops left unpicked and rotting in the fields. 11 

Georgia Gov. Nathan Deal even introduced a program for unemployed ex-convicts on 

probation to fill these vacant agriculture jobs. According to Georgia's Agriculture 

Commissioner Gary Black, many of these new workers promptly quit because the jobs 

were too strenuous.1z 

Increasing the supply of low-skilled immigrants doesn't only ensure that more vacant 

jobs are filled. It increases the overall productivity of the American economy by 

injecting talent that is complementary to the existing domestic labor supply. 

Immigrants are generally either lower-skilled or higher-skilled than most native-born 

workers. That means they aren't competing with Americans for the type of jobs they are 

qualified to do. Instead, they fill jobs that complement the existing American labor 

supply, raising productivity and wages across the board. 

Think about this in the context of a restaurant. Immigrants, because of their low skills 

and lesser English speaking proficiency, work in non-communications jobs like 

dish washing, cooking, bussing tables, and janitorial work The Americans who filled 

these jobs in previous generations are now performing higher-paid jobs like waiting 

tables, hosting, and managing the restaurant. The availability of lower-skilled labor 

allows native-born Americans to work better jobs and earn more money. 

By the same account, high-skilled immigrants are vital to America's dynamic economy. 

Similar to low-skilled immigrants, they rarely directly compete with native-born 

workers, but for different reasons. High-skilled labor is extremely entrepreneurial. They 

grow the economic pie by innovating and building new businesses. They directly create 

opportunity for Americans. 

Immigrants or their children founded more than 40 percent of Fortune 500 companies. 

Those immigrant-founded Fortune SODs employ more than 10 million people 

worldwide, and have combined global revenues of $4.2 trillion.13 

Baseless Criticism 

Some people who choose to play politics with this issue have ignored dynamic analysis 

and instead considered only the inflated costs of reform. Errors found in pseudoanalysis by anti-immigration groups include: 

11 Benjamin Powell. The Law of Unintended Consequences: Georgia's Immigration Law Backfires. 

Forbes. May 17, 2012. http://www.forbes.com/sites/realspin/20I2/0s/I7/the-law-of-unintendedconsequences-georgias-immigration-law-backfires/. 

12 Associated Press. Crackdown on illegal immigrants left crops rotting in Georgia fields, ag chief 

tells US lawmakers. October 4, 2011. 

http://blogJ.l)~_omlwirei2011IIDicrackdown on illegal immi.gmnt.htmj. 

''The Partnership for a New American Economy. The 'New American' Fortune 500. June, 2011. 

http: I I www. renewourecon om~_si tes I alll1J.J_emes I nna e/ img In ew-american-fortune-s oo-i un e201L,Pdf. 
405 

A).,ffi.RICANS Pa,ge 7 of9 /"~'TAX REFOR/\1 

• Exaggerating public benefit costs by citing household costs, rather than 

individual immigrant costs. By counting welfare costs on a household basis, critics 

including millions of native-born American spouses and children into their estimation. 

This is a misleading trick that inflates the true cost of public benefits for immigrants, 

and assumes native-born Americans are only public charges because of their 

association with their immigrant spouses or parents. 

• Portraying impossible levels of welfare use. Putting aside the evidence that 

immigrants come to America to pursue economic opportunity, it is important to point 

out that leading criticisms of increased immigration predict levels of welfare use that 

are impossible under this bill. Most undocumented immigrants are barred from 

accepting public benefits, including Obamacare, for 13 years at the earliest. Those on a 

quicker path- agricultural workers and DREAMers- still must wait eight years. Yet 

prominent criticisms of the bill assume immediate adoption welfare benefits by those 

legalized. 

• Assuming immigrant wages will remain stagnant throughout their lives. With 

legalization come labor market flexibility and productivity gains, resulting in higher 

wages. After the 1986 Reagan amnesty, immigrant wages increased immediately after 

they became legal, sometimes by as much as 15 to 25 percent.14 

• Ignoring the costs of an enforcement-only approach. Professor Raul HinojosaOjeda of UCLA using the GMig2, a dynamic bilateral labor flows model, to estimate the 

economic effects of a successful enforcement-only policy that included mass removal of 

all illegal immigrants- a policy desired by immigration restrictionists. The result of that 

simulation was a $2.6 trillion decrease in estimated GOP growth over the same decade, 

decreasing tax revenues. Direct government costs of such a program are also enormous. 

Economist Rajeev Goyle estimated that deporting 11 million people would cost the 

government $206 billion over a five year period.15 More conservatively, Immigration 

and Customs Enforcement (ICE) assumed that the marginal immigrant costs $12,500 to 

deport which, assuming no increase in marginal costs, would cost the government 

approximately $140 billion to deport 11 million unauthorized immigrants.16 

• Conceding the size of the current welfare state, rather than working to reform 

it. Building a wall around the welfare state is a far more effective and economically 

beneficial policy than building a wall around the country. It is also politically possible. 

There are groups that oppose growing the American economy via more immigration 

because of their extreme environmental and population control views, because they 

have a flawed Malthusian view of the economy, and because they don't understand free 

markets. Their failed arguments against immigration are also arguments against having 

children. These groups view people not as assets, but as liabilities. This is a fatally 

flawed argument, and completely inconsistent with conservative principles. 

Some argue that the fiscal burden of America's entitlement programs make more 

immigration cost prohibitive. That is a false choice. That our entitlement systems are 

broken is not an argument for less immigration; it is an argument to fix our entitlement 

systems. 

1

4 Baker. E.ffects of the 1986 Immigration Reform and Control Act on Crime. SSRN Working Paper, 

2011. 

'5 Gayle and Jaeger. Depoting the Undocumented: A Cost Assessment. July, 2005. 

l:!.t.m;ilwww.djacger.org/researcb/reports/deporting undocumente<;l~. 

J6 Associated Press. Feds Estimate Deportation Costs $12,500 Per Person. January 27, 2011. 

http://cnsnews.com/news/article/feds-estimate-deportation costs-12500-person. 
406 

.A,.M.ERIC.ANS 

/"'/TAX REFORM 

!'age 8 of9 

The legislation before us today puts at least 13 years between legal status and access to 

public benefits for most undocumented immigrants, mitigating the negative fiscal 

impacts of our bloated entitlement programs. Those who insist or imagine that this bill 

would impose trillions of dollars in new entitlement costs have not read the legislation, 

nor do they understand the current eligibility requirements. 

Furthermore, immigrants come at the beginning of their working lives, which means 

they will have years to pay taxes and contribute to the economy before being eligible for 

entitlements. The American Community Survey estimates that the average age 

of immigrants who have come since the year 2000 is 31 while the average native-born 

American is 36 years oldY Immigrants typically arrive in their mid-20s after their 

home countries pay for their education so they can begin to work and pay taxes in the 

U.S. immediately. By coming at such a young working age the government does not have 

to pay for their education but they could work around 40 years before being eligible for 

entitlements if they decide to stay. 

Also, many low-skilled immigrants work for years in the U.S. before returning home 

with their savings as part of a phenomenon called circular migration. Forcing them to 

work in the illegal market means they will stay here longer than they otherwise would 

because if they did leave the U.S., there would be no guarantee they could come back 

later to work if they had to. Allowing them to come legally or to legalize the ones here 

would reignite circular migration, allowing immigrants to plan on coming here for a few 

years to work and pay taxes and then returning home with their savings. Princeton 

Sociologist Doug Massey has observed that 20 percent to 30 percent of Mexican 

immigrants from 1965 to 1986 followed that pattern,lB 

For almost all means-tested federal welfare programs, immigrants are substantially 

restricted access until they have had a green card for at least five years. Programs they 

are restricted from include: Medicaid, Supplemental Nutrition Assistance Program, 

Temporary Assistance for Needy Families, and Supplemental Security Income. The 

current legislation would construct even larger barriers to welfare, with a 10-year 

waiting period for most newly legalized immigrants to receive a green card, and then 

another 3 years until access to means-tested public benefits. That is a high wall around 

the welfare state. 

The Shining City on a Hill 

Mr. Chairman, it is my belief that a position in favor of more legal immigration and a fair 

and humane path to citizenship for those undocumented immigrants already here is 

wholly consistent with the ideals of the center-right movement I have worked my entire 

life to help build. I believe that free markets lead to economic growth and prosperity for 

all. This includes free and flexible labor markets, which will benefit not only those who 

'7 American Community Survey, 2011, Chart S0502, Selected Characteristics of the Foreign-Born 

Population by Period of Entry into the United States and S0501 Selected Characteristics of the Native 

and Foreign-Born Populations, 1-year estimates. 18 Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican 

Immigration in an Era of Economic Integration (New York: Russell Sage Foundation, 2002): 63-64 
407 

A).JJ'!RICANS P'<ae 9 of9 /''f '11\X REFORM ,, :J 

wish to come here to pursue the American Dream, but also those of us blessed enough 

to have been born in the United States of America. 

I conclude with an excerpt from President Ronald Reagan's farewell address to the 

nation, in january of 1989. 

I've spoken of the shining city all my political life, but I don't know if I ever 

quite communicated what I saw when I said it. But in my mind it was a tall, 

proud city built on rocks stronger than oceans, wind-swept, God-blessed, 

and teeming with people of all kinds living in harmony and peace; a city 

with free ports that hummed with commerce and creativity. And if there 

had to be city walls, the walls had doors and the doors were open to anyone 

with the will and the heart to get here. 
408 

Statement Of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committee, 

Hearing On Oversight Of The Department Of Justice 

March 6, 2013 

This week is the anniversary of"Bloody Sunday" when voting rights marchers, including now 

Congressman John Lewis, were beaten by state troopers as they attempted to cross the Edmund 

Pettis Bridge in Selma. Attorney General Holder spoke this weekend about living up to our 

founding ideals and the power of our legal system. The law protects the rights of all Americans. 

That is what this Attorney General and the Justice Department he leads are dedicated to doing. 

In 2009, the Attorney General worked with us in Congress to pass landmark hate crimes 

legislation to address crimes committed against Americans because of race, ethnicity, religion, 

sexual orientation, or gender identity. The Justice Department is enforcing that law. This week 

the President will sign historic legislation building upon the Violence Against Women Act and 

the Trafficking Victims Protection Act to protect all victims of abuse. The Justice Department 

will implement those laws. 

And the Justice Department is defending the protections provided by section 5 of the Voting 

Rights Act to ensure that all Americans have the right to vote and to have their votes matter. 

This Committee played a key role in reauthorizing the Voting Rights Act six years ago. After 

nearly 20 hearings before the House and Senate Judiciary Committees, we found that modem 

day barriers to voting persist in our country. We passed and President Bush signed the current 

extension of the Voting Rights Act in order to safeguard the fundamental rights of all Americans. 

I commend the Attorney General, FBI Director Mueller and all those who work every day to 

keep Americans safe. The follow up attack to 9/11 that so many predicted has not occurred--

not on this President's watch. Constant vigilance is part of the reason. I also thank the Attorney 

General for reaching out, not only to me, but to Senator Grassley on issues of national security. 

While the Department's success in disrupting threats to national security has been remarkable 

and its efforts to hold terrorists accountable commendable, I remain deeply troubled that this 

Committee has not yet received the materials I have requested regarding the legal rationale for 

the targeted killing of United States citizens overseas. I am not alone in my frustration or in my 

waning patience. The relevant Office of Legal Counsel memoranda should have been provided to 

members of this Committee. It is our responsibility to ensure that the tools at Government's 

disposal are used in a way that is consistent with our Constitution, laws and values. 

We have worked together effectively to help keep Americans safe from crime and to help crime 

victims rebuild their lives. Together, we have worked to strengthen Federal law enforcement and 

to support state and local law enforcement, and crime rates have experienced a historic decline 

despite the struggling economy. 

We have worked together to fight fraud and corporate wrongdoing, which had such a devastating 

impact on the American people in the recent economic downturn. Congress passed the Fraud 

Enforcement and Recovery Act, which Senator Grassley and I drafted together, and important 
409 

new anti-fraud provisions as part of the Affordable Care Act and the Dodd-Frank Wall Street 

Reform and Consumer Protection Act. Armed with these new tools, the Justice Department has 

broken records over the last several years for civil and criminal fraud recoveries and has 

increased the number of fraud prosecutions. 

This Committee has also worked with the Department to try to ensure that the criminal justice 

system works as it should. This month marks the 501

h anniversary of the seminal Supreme Court 

decision in Gideon v. Wainwright, which affirmed that no person should face prosecution 

without the assistance of a lawyer. I an1 encouraged by the Justice Department's Access to 

Justice Office but so much more needs to be done to ensure justice for all. I was also glad to see 

the announcement of a joint initiative to help standardize and improve forensic science across the 

country, incorporating many of the ideas from my Criminal Justice and Forensic Science Reform 

Act. 

I appreciate the Attorney General joining me in recognizing the mounting problem of our 

growing prison population. This is having devastating consequences at a time of shrinking 

budgets at all levels of government. We all must do more to find constructive ways to solve it. 

Turning away from excessive sentences and mandatory minimums for nonviolent offenders 

would be a good start. 

When the Senate confirmed Attorney General Holder four years ago, the Department of Justice 

was still reeling from scandal, mismanagement, and findings of impermissible politicization. 

Since that time, the credibility of the Justice Department among the American people and in 

courtrooms throughout the country has increased dramatically, and the morale of its hardworking 

agents, prosecutors, and professionals has been largely restored. 

##### 
410 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S. 744" on April22, 2013 

Questions for Dr. Steven Camarota 

I. At the April22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

3. In your opinion, how should comprehensive immigration reform strike a balance between 

family-based and merit-based immigration? 

4. In your opinion, will the bill's legalization provisions create a burden on the national 

economy or public programs? 

5. In what ways, if any, does this bill use immigration reform to strengthen the national 

economy? 
411 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April22, 2013 

Questions for Chris Crane 

1. At the April 22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

3. In your opinion, does this bill strengthen or weaken our current immigration laws? 

4. Does this bill help or hurt the enforcement of immigration laws? 

5. How meaningful are the triggers in this bill? 

6. In your opinion, are the border security provisions of this bill strong enough to prevent 

another wave of illegal immigration? Why or why not? 

7. Are you concerned that the discretion afforded to DHS to legalize aliens will lead to 

fraud or other abuse? Why or why not? 

8. Page 548 discusses "Profiling." It articulates a standard where race and ethnicity may not 

be used by law enforcement even where the use of race or ethnicity might otherwise be 

lawful. Why would current standards/law not be what guides law enforcement? 

9. Page 48-49 discusses "Use of Force." Specifically, is says: "The Secretary in 

consultation with the Assistant Attorney General of Civil Rights shall issue policies 

governing the use of force, accepting and investigating complaints, disciplining 

personnel, and reviewing all uses of forces by personnel." Since every arrest necessitates 

some use of force, docs that provision open the door to review every arrest made by an 

agent? 

I 0. Page 49 discusses "Training." Specifically, it says: "The Secretary shall in collaboration 

with the Assistant Attorney General of Civil Rights provide training." Does the Civil 

Rights Division generally train your agents on "interrogations, stops, searches, seizures, 

arrests, and detention?" 
412 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April22, 2013 

Questions for Professor Ron Hira 

I. At the April 22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently v.Titten? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

3. Do you believe that the bill as v.Titten appropriately addresses the economic needs of the 

country through the immigration system? 

4. Some people have suggested that the bill should focus more on family-based 

immigration. What is your view of the right balance between merit-based and familybased immigration? 

5. In your opinion, does this bill treat American workers fairly? 

6. Are there sufficient safeguards for American and foreign workers in the bill? 

7. Given the testimony of Brad Smith, do you have any further thoughts on why the 

business community opposes the Grasslcy/Durbin "good faith effort" requirement, which 

is a simple and straight forward measure that would provide qualified people at home 

with a chance at high skilled, high paying jobs? 

8. During the hearing, Brad Smith of Microsoft claimed that there are severe and systemic 

shortages of STEM workers. Do you agree with this claim? 

9. It is clear that the top firms using the H-1 B visa program are taking about 50% of the 

available visas each year. Can you explain how outsourcing firms work and how they are 

taking work offshore? 

10. Will the bill eliminate the use of the Hl-B visa for outsourcing? 

II. How does it impact the use of the L-1 visa and OPT for outsourcing? 

12. Could you explain your concerns about the L-1 and OPT visas? 

13. Do you have any suggestions for improving the law so that companies based in the 

United States have a shot at the visas available each year? 

14. Can you elaborate on any other provisions in the bill that I) protect American workers 

and 2) ensure that companies arc not abusing the program? 

15. Why do you believe that allowing greencard applications (intending immigrant) to reduce 

the H-IB counts is not good policy? 
413 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April22, 2013 

Questions for Janice Kephart 

1. At the April22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

refom1? 

3. How meaningful are the triggers contained in the bill? 

4. In your opinion, does the bill guarantee that the problems with our current level of 

border security will be addressed? 

5. What are the national security implications of granting legalization without establishing 

objective standards to measure border security? 

6. Do you believe that the bill strengthens our national security and makes our homeland 

safer? Why or why not? 

7. In your opinion, does the bill strengthen or weaken our current immigration laws? 
414 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April 22,2013 

Questions for Hon. Kris Kobach 

1. At the April 22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

3. Do the legalization provisions of the bill promote the rule oflaw? 

4. Does this bill give too much discretion for DHS to waive conditions for immigrants who 

evade the law that would otherwise make them ineligible for legalization? 

5. Will the bill encourage increased litigation over people's immigration status? 

6. Docs the bill adequately address border security concerns, and does it guarantee that an 

effective employer verification system will be implemented? 

7. Are you concerned that the bill gives illegal aliens multiple opportunities to get legal 

status, and does not mandate deportation after denials of citizenship? 

8. Do you believe that the bill's docs enough to prevent and deter fraud and abuse of the 

immigration system? Why or why not? 

9. What does the preemption provision ofE-Verify mean for various states across the 

country? 

I 0. Do you think that employers should be required. or at least allowed to, verity the work 

eligibility of their current workforce? 

II. Some have stated that this bill creates more loopholes than it closes. Are you aware of 

any specific provisions that will create loopholes down the road? 
415 

Senator Grasslcy's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April22, 2013 

Questions for Mark Krikorian 

1. At the April22, 2013 hearing, we heard many perspectives on comprehensive 

immigration refonn. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently 1\Titten? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

3. How meaningful are the triggers contained in the bill? 

4. In your opinion, does the bill guarantee that any problems with our current level of border 

security will be addressed? 

5. Does the bill put meaningful restraints on the discretion of the Department of Homeland 

Security with respect to both border security and the ability of immigrants who would 

otherwise be ineligible for legalization to attain waivers allowing them to become 

legalized? 

6. Are you concemed that the creation ofthe RPI status will lead to fraud, increased 

litigation, or high administrative costs? Why or why not? 

7. In your opinion, what are the most egregious provisions in this bill? 

8. What are your thoughts on the new electronic monitoring system, to be modeled after 

SEVIS, and for employers who use theW visa program? 

9. Is there anything in the bill that would incentivize people to return to their country? 

10. In your opinion, is the temporary worker program truly temporary? 

11. Is it your understanding that this bill provides illegal immigrants with many opportunities 

to apply for legalization as well as more opportunities to appeal adverse decisions made 

by the Department of Homeland Security? If so, would you discuss how the bill 

accomplishes this? 
416 

Hearing on S.744, The Border Security, Economic Opportunity, 

and Immigration Modernization Act 

April22, 2013 

Senator Leahy 

Questions for the Record for Brad Smith 

Q. The Uniting American Families Act (UAFA) would allow American citizens who are in 

long term committed relationships, or are married, to sponsor their foreign partners or 

spouse for green cards under the family immigration system, just as heterosexual married 

couples are currently allowed to do under the law. I have championed this proposal since 

2003, when I first introduced the legislation. This year, I welcomed Senator Susan 

Collins (R-Maine) as an original cosponsor of this bipartisan legislation. 

a. Does Microsoft have a position on the Uniting American Families Act? 

b. Why do you believe that UAFA is important to American companies? 
417 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

Brad Smith 

In your testimony, you expressed several concerns with the burdens the H-IB reforms would 

place on your business. 

• Could you elaborate on those concerns? 

• How can we ensure that Hl-B visas are not exploited by outsourcing companies, without 

overly burdening businesses that use them for legitimate reasons? 
418 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

Tamar Jacoby 

The new W -visa has a cap of 200,000 per year after the phase-in. The Pew Hispanic Center 

shows that in March 2000, the annual flow of illegal immigrants was 500,000. 

• As our eeonomy improves, will there be enough visas to fill the jobs that are available? 

• If there not enough visas, will we see more illegal entries? 
419 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

Janice Kephart 

By what metric is "border security" currently determined? Is this metric effective? Is the same 

metric used in the bill? 

When calculating total illegal entries, besides watching someone cross the border without 

apprehending them, how does DHS decide that an illegal entry has occurred? 

What specific border security measures does this bill require in the non-high-risk sectors? 

If, five years after the enactment of the bill, one of the current non-high-risk sectors becomes 

"high-risk" due to an increase in illegal crossings, do the border security requirements for those 

sectors also increase? 
420 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

Kris Kobach 

Mr. Kobach, you noted in your written testimony that the bill's definition of employer exempts 

employment that is "casual, sporadic, irregular, or intermittent." I also noted this exemption and 

was troubled by it. 

• What employment would be exempted from using E-Verify that shouldn't, under this 

definition? 
421 

Senator Jeff Sessions 

Questions for the Record 

Fred Benjamin, Chief Operating Officer, Medicalodges, Inc. 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
422 

Senator .Jeff Sessions 

Questions for the Record 

Brad Smith, General Counsel and Executive Vice President, Microsoft 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
423 

Senator Jeff Sessions 

Questions for the Record 

Dr. Steven Camarota, Director of Research, Center for Immigration Studies 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
424 

Senator .Jeff Sessions 

Questions for the Record 

Charles Conner, President & CEO, National Council of Farmer Cooperatives 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
425 

Senator Jeff Sessions 

Questions for the Record 

Chris Crane, President, National Immigration and Customs Enforcement Council liS 

of the American Federation of Government Employees 

1. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
426 

Senator Jeff Sessions 

Questions for the Record 

Neeraj Gupta, CEO, Systems in Motion 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
427 

Senator Jeff Sessions 

Questions for the Record 

Professor Ron Hira 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
428 

Senator Jeff Sessions 

Questions for the Record 

Tamar Jacoby, President & CEO, Immigration Works USA 

l. IfS. 744 were to become law, do you believe that the Department ofHomeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
429 

Senator Jeff Sessions 

Questions for the Record 

Rick Judson, Chairman, National Association of Home Builders 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
430 

Senator Jeff Sessions 

Questions for the Record 

Janice L. Kephart, Former Counsel, September 11 Commission, 

Principal, 911 Security Solutions 

l. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment'? 
431 

Senator Jeff Sessions 

Questions for the Record 

Honorable Kris Kobach, Secretary of State, State of Kansas 

I. lf S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
432 

Senator Jeff Sessions 

Questions for the Record 

The Honorable Jim Kolbe 

1. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
433 

Senator Jeff Sessions 

Questions for the Record 

Mark Krikorian, Executive Director, Center for Immigration Studies 

1. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
434 

Senator Jeff Sessions 

Questions for the Record 

Laura L. Lichter, Esq., President, American Immigration Lawyers Association 

1. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
435 

Senator Jeff Sessions 

Questions for the Record 

Janet Murguia, President & CEO, National Council of La Raza 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
436 

Senator Jeff Sessions 

Questions for the Record 

Grover Norquist, President, Americans for Tax Reform 

I. lfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some fonn of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

3. Dynamic macroeconomic models of the U.S. economy assume an average wage rate that 

is applied over the entire population of workers. With respect to the analysis that you 

relied on for your testimony, please explain what wage rate was used, how much that 

wage rate changed over the course of the forecast period, and whether it was based on 

income earned only by legal workers or on income earned by both legal and illegal 

workers. 

4. Although your testimony concludes that a large-scale amnesty will result in budget 

savings from lower deficits, your testimony is silent with regard to inflation and interest 

rates, which often make significant differences in budget outcomes. Please provide the 

the interest rate and inflation (CPI of GDP deflator) results in the simulation that you 

relied upon in your testimony. 

5. Experts on the current illegal population report that the average educational level adjusted 

for age is below that of the legal population. However, worker productivity is closely 

associated with educational attaimnent and productivity is causally connected to growth 

in the economy. Please explain whether the economic model or analysis you relied upon 

in your testimony suggests that the illegal population will gain the training and education 

needed to support your claims regarding economic growth. 

6. In your written testimony you state: "The majority of those undocumented immigrants 

currently here are low-skilled. Some argue that we should not be importing or legalizing 

this type of talent. But, in reality, the U.S economy demands an enormous number of 

low-skilled workers ... We need immigrant labor to fill demand for low-skill jobs." 

a. Please explain how you anticipate that many of the low-skilled workers who 

would be legalized under S. 744 would find employment in light of the current 

unemployment rate of 7.6 percent and the fact that 90 million Americans are 

outside of the labor force. 

b. Please list the sources that you used to reach your conclusion that the U.S. needs 

more labor to fill a low-skill job demand. 
437 

7. In your testimony you asserted that S. 744 "puts at least 13 years between legal status 

and access to public benefits for most undocumented immigrants, mitigating the negative 

fiscal impacts of our bloated entitlement programs." Your testimony went on to say that 

immigrants come at tbc beginning of their working lives, which means they will have 

years to pay taxes and contribute to the economy before they receive any benefits. 

Eugene Steuerle and Caleb Quakenbush of the Urban Institute published a report in 2012 

titled "Social Security and Medicare Taxes and Benefits over a Lifetime." Their report 

provides data indicating that even among two-household couples where one earns a high 

wage ($71 ,400) and the otber a lower wage ($44,600), the amount paid in total lifetime 

taxes is lower than the total lifetime benefits they receive as they get older. 

a. Please provide tbe data on which you rely that suggests illegal immigrants will 

pay enough taxes to mitigate any negative fiscal impacts of receiving entitlement 

benefits over the long-term. 

b. Please explain how you reconcile your conclusions with those of the report by 

Steuerle and Quakenbush. 

c. Please provide the data on which you rely to calculate the average wages that 

illegal immigrants will earn once they are authorized to work in the U.S. 

d. Under S. 744, when is the earliest that illegal immigrants who become legalized 

would be eligible for federal benefits? 

e. Under S. 744, when is tbe earliest that illegal immigrants who become legalized 

would be eligible tor state and local benefits? 

f. Under S. 744, when is the earliest that a household headed by an illegal immigrant 

who becomes legalized would become eligible for federal benefits? 
438 

Senator .Jeff Sessions 

Questions for the Record 

Arturo Rodriguez, President, United Farm Workers 

S.744, The Border Security, Economic Opportunity, and Immigration Modernization Act 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some fonn of!egal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
439 

Senator Jeff Sessions 

Questions for the Record 

Mark Shurtleff, Partner, Troutman Sanders LLP 

1. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some fom1 oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
440 

Senator Jeff Sessions 

Questions for the Record 

The Honorable Bill Vidal, President & CEO, 

Hispanic Chamber of Commerce of Metro Denver 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 
441 

Senator Jeff Sessions 

Questions for the Record 

Fred Benjamin, Chief Operating Officer, Medicalodges, Inc. 

I. If S. 744 were to become law, do you believe that the Department ofHomeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

I believe that if enacted, this legislation would provide a mechanism to track those individuals 

who are allowed to enter the U.S. legally and overstay their visa. I also believe that this 

legislation would deter illegal entrants because of new legal programs that would be made 

available to foreign nationals to enter the U.S. lawfully. Those who enter the country illegally, 

would have a difficult time finding employment and would most likely be deported. 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

This question is beyond my scope of expertise. I have looked at the bill with respect to the 

current and future needs for workers in the senior care industry. I believe that it addresses those 

needs. 
442 

Brad Smith 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

In your testimony, you expressed several concerns with the burdens the H-JB reforms would 

place on your business. 

• Could you elaborate on those concerns? 

Thank you for the opportunity to provide additional detail on some of the concerns we have with 

the current language ofS.744, the Border Security, Economic Opportunity, and Immigration 

Modernization Act of 2013. 

Two sections of the bill that would benefit from further clarification and refinement are the 

recruitment requirements and nondisplacement provisions relating to H-1 B workers. As I 

explained at the hearing, Microsoft is and intends to be a strong supporter of this bill. It makes 

many important improvements to bring the supply of employment-based green cards and H-IB 

visas into line with the skills demands oftoday's innovation economy. With respect to H-IB 

visas, though, if the recruitment and nondisplacement requirements are not refined, they would 

stand as unnecessary obstacles to use of the visas by employers who create jobs in this country. 

Recruitment 

For the first time, the bill includes a recruitment requirement even for employers with a small 

overall population of H-1 8 workers. For each H-1 B petition-including petitions seeking to 

extend the H-IB status of existing employees-every employer would need to attest that it has 

advertised the job on a new website created by the Secretary of Labor, and has offered the job to 

any U.S. worker who applies and is equally or better qualified for the job than the H-1 8 worker. 

Employers that are H-1 B dependent would have to make an additional attestation that they have 

taken good faith steps to recruit in the U.S. using procedures that meet industry-wide standards 

and are offering compensation that is at least as great as that required to be offered to the H-1 B 

nonimmigrant. 

As a threshold matter, it is important to understand that we are not dealing with a choice between 

hiring U.S. workers and hiring foreign workers. The talent shortage is so acute that we need both 

to address today's workforce needs. And, to be clear, Microsoft endorses the idea of requiring 

that H-IB employers make good faith efforts to recruit U.S. workers in the occupations for 

which H-!Bs are sought, using industry-wide standards and offering the same level of 

compensation. At Microsoft, we do this already, not just because it is the right thing to do, but 

also because it is a necessity to meet our business needs. Microsoft engages in massive 

recruitment efforts for talent-including U.S. workers-on a daily basis. We spend millions of 

dollars each year in our recruitment efforts, with a staff of over 300 recruiters whose key 

assignment is to find qualified candidates for our job openings. We hire people from hundreds 

of U.S. universities, and we conduct significant targeted recruitment efforts at 100 of those 
443 

schools with whom we have cultivated deep connections and relationships over the years to 

ensure the opportunities available at Microsoft are widely known. We also dedicate significant 

resources to the recruitment of experienced candidates within the industry, and we leverage a 

multitude of connection points, including professional networks and associations, a robust 

employee referral program, dozens of job search websites, social media and our own careers 

website. We even have a blog at www.microsoftjobsblog.com that is devoted to generating as 

much visibility as possible for our opportunities. We don't just wait for potential candidates to 

find us. We do everything we can to find them. 

When we make our hiring decisions, we evaluate our candidates thoughtfully to ensure that the 

candidate with the best qualifications receives an employment offer. We are confident in how 

we hire and the opportunities that we provide to American workers. Our main concern is with 

having those hiring decisions second-guessed by Department of Labor auditors years after those 

decisions are made. This introduces a deep level of uncertainty, particularly with regard to how 

regulators would make appropriate assessments of employers' hiring decisions. The imposition 

of new requirements on non-dependent employers-whose workforces are already comprised 

primarily of U.S. workers-to keep voluminous records on each applicant and every hiring 

decision would also add a significant level of administrative overhead and expense without 

improving protections for U.S. workers or helping drive innovation and business growth. This 

level of regulation would certainly create substantial new resource demands for the government 

as well, and in the context of compliant, non-dependent employers, would not be the best use of 

limited enforcement resources. Ultimately, employers are in the best position to assess 

applicants and their qualifications in relation to their workforce needs, and it is in our clear 

business interest to hire the most qualified candidates. We believe that this provision must 

recognize that reality. 

Nondisplacement 

The bill also includes a requirement that even companies with very small percentages ofH-18 

workers not have displaced a U.S. worker within the 90 days prior to an H-18 petition, and that 

they will not do so within 90 days following a petition. Again, we fully endorse the principle 

that H-1 8 visas should not be used to displace U.S. workers, but we should be certain to focus 

the restriction on the practice we all want to prohibit-replacing an American worker with an HI 8 worker. But as drafted. this provision could disrupt a number of situations that Congress 

would consider to be both legitimate and important business options-such as changes in the 

number ofU.S. workers due to acquisition or divestiture activity-none of which would involve 

actual displacement of U.S. workers. Particularly for companies like Microsoft with a welldocumented record of job creation and hiring U.S. workers, these provisions should be carefully 

crafted to preserve the critical flexibility that employers need to make workforce decisions that 

enable important strategic business decisions. 

The bill recognizes these types of situations and includes an exemption for situations where the 

number of U.S. workers in the professional ranks has not decreased in the prior year. This is a 

sensible exemption, but it may not be broad enough to accommodate for common situations such 

as divestitures, acquisitions, and other noncontroversial occurrences in the corporate ecosystem. 

The framework of the exemption-based on job zones-also creates challenges in calculating 
444 

the qualifying metrics for the exemption. There are simple refinements to address this concern. 

One option would be to require an attestation of nondisplacement that more precisely provides 

that the employer is not filing an H-1 8 petition for the intent or purpose of displacing a specific 

U.S. worker. We recognize that compromises are necessary for a bill of this magnitude, but we 

are optimistic that this provision can be refined while still ensuring strong protections against the 

displacement of U.S. workers. 

• How can we ensure that H-1 B visas are not exploited by outsourcing companies, without 

overly burdening businesses that use them for legitimate reasons? 

We often hear general concerns about wages in relation to the overall 1-1-18 program. Microsoft 

creates thousands of high skilled, high paying jobs in the U.S. every year. As required by the 

existing provisions of the H-1 8 program, we pay our H-18 employees the same as their peers 

who are U.S. citizens. As a result, at our headquarters in Redmond, WA, software development 

engineers who have recently graduated college have starting salaries in excess of 36% above the 

Department of Labor's Levell wage for the occupation, not to mention the additional 

opportunities for bonuses and stock awards. This bill would restructure the prevailing wage 

system and substantially increase the minimum wage floor for all H-1 8 employees. Microsoft is 

supportive of this approach because it protects U.S. workers and it helps disprove the common 

misperception that H-1 8 workers ·are used as a cheap source of labor. 

We think it makes sense to differentiate and tailor the restrictions and enforcement applied to 

companies based on whether they are dependent or non-dependent employers-and the bill takes 

strong steps in this direction. For example, firms with a U.S. workforce more than 50% 

comprised of H-1 8 and L-1 employees will be barred from obtaining new H-1 Bs after a three 

year phase in period. 1-1-18 dependent employers will also be required to pay the highest wage 

level for its H-18 employees. And H-18 dependent employers will be subject to strong 

requirements to recruit U.S. workers as well as restrictions on nondisplacement. We do agree 

with the approach taken by the drafters of the bill to exclude 1-1-1 and L-1 employees being 

sponsored for permanent residence from the dependency calculations in the bill. 

While these additional burdens make sense for employers who are H-1 8 dependent, 

non dependent employers should have a different level of attestation requirements applied to 

them. These are companies who, like Microsoft, are clearly recruiting and hiring U.S. workers, 

as evidenced by the low percentage oftheir workforccs that are comprised ofH-18 employees. 

These are also the companies that do not use the H-18 visa to displace U.S. workers. Simple 

revisions to the existing language on both of these attestation requirements would alleviate these 

concerns. Specifically, it makes sense to require non dependent employers to attest that they have 

attempted in good faith to recruit U.S. workers in the occupations for which J-1-18 employees are 

sought, but they shouldn't be subjected to regulators second-guessing individualized hiring 

decisions years after those decisions are made. Similarly, employers should be required to attest 

that H-18 petitions are not being filed to displace specific U.S. workers. But the definition of 

displacement under the current language must be narrowed to properly exclude circumstances 

where no specific displacement has actually taken place. 
445 

Hearing on S.744, The Border Security, Economic Opportunity, 

and Immigration Modernization Act 

April 22, 2013 

Senator Leahy 

Questions for the Record for Brad Smith 

Q. The Uniting American Families Act (UAFA) would allow American citizens who are in 

long term committed relationships, or are married, to sponsor their foreign partners or 

spouse for green cards under the family immigration system, just as heterosexual married 

couples are currently allowed to do under the law. I have championed this proposal since 

2003, when I first introduced the legislation. This year, I welcomed Senator Susan 

Collins (R-Maine) as an original cosponsor of this bipartisan legislation. 

a. Does Microsoft have a position on the Uniting American Families Act? 

Yes, Microsoft supports the Uniting American Families Act and sent a formal letter of support 

on June 27, 2011. A copy of the letter is attached. 

b. Why do you believe that UAFA is important to American companies? 

As an innovation leader, our most critical asset is the brainpower of the people in our workforce. 

Our talented employees are the key to our competitive strength, our ability to generate new ideas 

and products, and our ongoing capacity to create new jobs in the American economy. 

Currently, same-sex permanent partners of U.S. citizens and lawful permanent residents cannot 

access similar benefits extended to married couples which impose a tremendous hardship on a 

number of our employees as well as the individuals we seek to recruit. These highly talented 

individuals are forced to choose between abandoning successful careers and established lives in 

the U.S. or living indefinitely in separate countries. Neither is a choice that makes sense and 

UAFA would change this outdated barrier. 
446 

Senator Jeff Sessions 

Questions for the Record 

Brad Smith, General Counsel and Executive Vice President, Microsoft 

1. lfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

In testimony last week before the Judiciary Committee, Janet Napolitano, the Secretary of the 

Department of Homeland Security noted that this legislation will strengthen both national 

security and border security by helping to better identity individuals who are physically present 

in the U.S. Our understanding of the bill is that it does not change the current policy or practice 

of the Department of Homeland Security with respect to removal proceedings. 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

Respectfully, Microsoft is not in a position to provide a qualified answer to these specific 

questions. We believe U.S. government officials are in the best position to provide an estimate 

on the future flow of immigrants under S. 744. 
447 

Senator Chuck Grassley 

Responses to Questions for the Record 

Hearing on "The Border Security, Economic Opportunity, and Immigration 

Modernization Act S.744" on April22, 2013 

Dr. Steven Camarota, Director of Research, Center for Immigration Studies 

I. At the April22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

Grover Norquist's testimony was the most odd. He seems entirely unaware of how our 

welfare system and income support system actually work. lt1oreover, he seems unaware of 

the actual welfare use rates of immigrants, especially less-educated immigrants. His 

argument that past immigration was not a problem, so today 's immigration is not a problem 

is entirely out of touch with current realities. For example, in 1900, during the last great 

wave of immigration, government expenditures (at all levels) equaled only about 5% ofGDP, 

today it is roughly 35%. Today, each individual has to be able on average to pay a good 

deal in taxes to cover their consumption of services, direct and indirect. This means the 

arrival of less-educated immigrants who often earn low incomes has enormous negative 

implications fbr public coffers. Mr. Norquist does not seem aware of any of this. He simply 

wishes to state platitudes as a basis for policy. 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration reform must include so that it avoids the problems that followed the 1986 

reform? 

There are too many problems with the bill to explore here. But let me touch on just a few. 

I) Employers are not required to start verifYing the legal status of new workers for jive 

years. 

2) Employment verification never covers existing workers only new hirers, even after it is 

implemented inftve years. 

3) The bill actually scraps the existing employment verification system (called E-verifY), and 

creates a whole new system that will almost certainly take years to get up and running. 

4) Only 3 of9 border sectors are required to be 90% secure. 

5) DHS only has to submit a border control "plan" before amnesty goes into effect. Since 

the administration already considers the border controlled, this "requirement" means very 

little. 
448 

6) No in-personal interview is required to verifY identity; amnesty applications can all be 

done by mail. 

7) The information amnesty applicants provide can never be used in an eriforcement action. 

If, for example, if a previously deported murderer applies under a false name and is 

discovered, agents are prohibited from using the address or place of work he provided in his 

application to pick him up. Confidentiality also means that if someone has been using a 

stolen identity, USC IS cannot inform the person whose identity has been stolen. Further, the 

illegal alien is given an amnestyfor having stolen an identity. 

8) Illegal immigrants are not required to pay back taxes (no matter how much is owed), even 

though prior to the bill's release there was the belief that it would include such a provision. 

9) Illegal immigrants receive amnesty without any English language requirement. In ten 

years when illegal immigrants begin to apply for green cards (permanent residence) they 

only have to state that they are signed up for an English class. 

1 0) Illegal immigrants with two drunk driving convictiom can still receive amnesty. 

11) There is no mechanism to detain and deport those who apply for amnesty, but are found 

ineligible. There is no requirement that DHS make any effbrt to locate and remove these 

individuals. The bill could have required applicants to receive approval in person, and those 

found ineligible could then be arrested. But there is no such provision. This fact, coupled 

with the probation on using ilifhrmation in the application for enforcement, means that the 

S744 will not be weeding out criminals, terrorists, and other bad actors. 

3. In your opinion, how should comprehensive immigration reform strike a balance between 

family-based and merit-based immigration? There are many way to think about this 

question but consider this as a starting point. 

ff one thinks immigration is supposed to benefit the United States, then selecting as few 

immigrants as possible based on the family relations is best. In my view family immigration 

should be limited to the spouses and minor children ofU.S.-citizens. 

4. In your opinion, will the bill's legalization provisions create a burden on the national 

economy or public programs? 

As I made clear in my testimony. immigration makes the economy larger but not richer. Its 

primary effect is to redistribute income, reducing the wages of some workers (those in 

competition with immigrants), who are often the least-educated, while increasing profits for 

business and the wages of those workers not in competition with immigrants. There are no 

large net gains for natives. Second the fiscal impact (taxes paid minus services used) of 

immigrant household orfmnilies is almost certainly negative. In other words, they use more 

in services than they pay in taxes. 
449 

As I indicated in my testimony, the National Research Councilfound that immigrant 

households overall were a net fiscal drain in/996 !!f$11 to $20 billion annually. The illegal 

population is ovenvhelmingly less-educated, averaging only I 0 years of schooling. Allowing 

them to stay is very costly; giving them legal status will increase the costs further. 

5. In what ways, if any, does this bill use immigration retbrm to strengthen the national 

economy? 

The provisions allowing in more skilled immigrants could have a positive impact economically 

and fiscally. However, the amnesty provisions, the increase in immigrationforfamily members, 

and the new guest worker program for the less-skilled immigrants all have negativefiscal 

implications iJ!Pfu:tiCui(JJ". 
450 

Senator Jeff Sessions 

Responses to Questions for the Record 

Dr. Steven Camarota, Director of Research, Center for Immigration Studies 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

There is nothing in the bill to mandate this. Thus those found ineligible for the amnesty 

will continue to live and work in the United States. It must be remembered that border 

enforcement and an enter/exit system will have no impact on those turned down for the amnesty. 

Further, the E-verifo system is not implemented for 5 years and never applies to existing 

workers. All of this means that those who do not qual[fY can and will continue to live in the 

United States. 

2. IfS. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

I am not sure of the number. However, Numbersusa has estimated that it roughly doubles the 

number of green cards each year to 2 million. Their findings is consistent with my reading of the 

bill. 
451 

Senator Jeff Sessions 

Questions for the Record 

Charles Conner, President & CEO, National Council of Farmer Cooperatives 

I. lfS. 744 were to become law, do you believe that the Department ofHomeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

Yes I do assuming sufficient resources are provided and visa holder tracking systems are 

in place. 

2. lfS. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

I do not have access to information which would allow me to answer this question. 
452 

Senator Jeff Sessions 

Questions for the Record 

Neeraj Gupta, CEO, Systems in Motion 

1. lfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

Answer: 

Senator Sessions, 

I am unable to answer the above questions. I am not an expert at DHS matters and don't have 

any data on question #2. 
453 

Senator Grassley's questions to witnesses re!!:arding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April 22, 2013 

Responses from Professor Ron Hira 

I. At the April22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you found 

problematic, and how would you respond to it? Do you have any additional comments on 

issues that were discussed at the hearing? 

A key issue not addressed in the hearing was the number oflegal permanent residents who will 

be cleared from backlogs, as well as future flows of greencards. While I believe that the US 

economy and American labor market can absorb somewhat higher levels of greencards without 

adversely impacting American workers, the numbers in this bill may be high enough to create 

significant negative impacts for American workers. Many of the skilled greencard provisions 

are uncapped and bypass the labor certification process, so there is no way to predict, nor 

control, the future dynamics ofthose seeking greencards. 

There are very low standards, a STEM degree and work in a related field, required to gain one of 

these greencards. So, we can easily predict that the program will be so attractive that large 

numbers of ordinary skilled workers will soon begin to crowd out American workers and 

students in those fields. 

This key issue was not addressed in any of the hearings on this bill yet it might have the most 

lasting and largest impact on the American labor market. 

The skilled greecard provisions in the bill should be modified to significantly raise the standards, 

institute a labor certification, and the program should be capped. 

2. As you know, Department of Homeland Security Secretary Janet Napolitano testified 

before the Judiciary Committee on April23, 2013. Much of her testimony focused on the 

issue of border security and the discretion that the proposed bill gives to the DHS 

Secretary. Do you agree with Secretary Napolitano's assessment that this legislation 

should be enacted largely as it is currently written? What do you believe comprehensive 

immigration refonn must include so that it avoids the problems that followed the 1986 

reform? 

Improve the H-18, L-1, OPT safeguards, and place better standards on the greencard provisions. 

3. Do you believe that the bill as written appropriately addresses the economic needs of the 

country through the immigration system? 

I don't believe that the bill addresses the economic needs in high-skilled labor markets, especially 

for STEM fields. With respect temporary work visas, the bill does not raise the wage floors for 
454 

H-1 Bs high enough - H-!Bs can still be paid 20% below the average wages of Americans. And it 

doesn't create wage floors for either the L-1 or the OPT visas. 

With respect to legal permanent residence, the bill eliminates labor certification for all STEM 

graduate students and eliminates the cap on their numbers. This will create perverse incentives in 

the market. Employers will be tempted to replace their older incumbent workers with cheaper 

fresh graduates, fueling age discrimination. And universities will be placed in a conflict of 

interest by becoming the sole gatekeeper for issuing greencards. Universities will essentially be 

able to sell green cards to foreign students. Given that Masters degrees are short in duration, 

and have little oversight from outside bodies, this provision will make it inexpensive for 

foreigners to purchase greencards. We will see a flood of foreign student applications, which will 

crowd out American students from the STEM fields. Those foreign students will in tum flood the 

labor market in the STEM fields, depressing wages, and further steering American students from 

studying these fields. 

All significant studies find that there are no systemic shortages in the STEM labor markets, and 

therefore there is no justification for such a provision. The most recent labor market study by 

Salzman, Lowell, and Kuehn (SLK) uses wage data as well as supply of graduates to show that 

there is no systemic shortage of STEM workers 

It can be found here: h!!J2:f/www.epi.oTil./pu1Jiication/bp359-guestworkers-high-skill-labormarket-analysis/ 

SLK find: 

"Our examination of the JT labor market, guestworker flows, and the STEM education pipeline 

finds consistent and clear trends suggesting that the United States has more than a sufficient 

supply of workers available to work in STEM occupations: 

The flow of U.S. students (citizens and permanent residents) into STEM fields has been 

strong over the past decade, and the number of U.S. graduates with STEM majors 

appears to be responsive to changes in employment levels and wages. 

For every two students that U.S. colleges graduate with STEM degrees, only one is hired 

into a STEM job. 

In computer and information science and in engineering, U.S. colleges graduate 50 

percent more students than are hired into those fields each year; of the computer science 

graduates not entering the IT workforce, 32 percent say it is because IT jobs are 

unavailable, and 53 percent say they found better job opportunities outside of IT 

occupations. These responses suggest that the supply of graduates is substantially larger 

than the demand lor them in industry. 

Analyzing new data, drawing on a number of our prior analyses, and reviewing other studies of 

wages and employment in the STEM and IT industries, we find that industry trends are strikingly 

consistent: 
455 

Over the past decade IT employment has gradually increased, but it only recovered to its 

2000-2001 peak level by the end of the decade. 

Wages have remained flat, with real wages hovering around their late I990s levels. 

We also find that, while there were strong increases in the number of computer science graduates 

and entrants from other fields that supply the IT industry during the late 1990s, after the dot-com 

bubble burst in 2001 a declining number of both guestworkers and U.S. students entered the IT 

pipeline. But since then, the number of IT college graduates has recovered modestly, while the 

number of guestworkers has increased sharply, suggesting a fundamental change in this 

labor market. 

Our review ofthe data finds that guestworkers make up a large and increasing portion of the IT 

labor market: 

The flow of guestworkers has increased over the past decade and continues to rise (the 

rate of increase dropped briefly with the economic collapse of2008, but the flow of 

guestworkers has since continued its rapid upward pace). 

The annual inflows of guestworkers amount to one-third to one-half the number of all 

new IT job holders. 

It could appear to casual observers that the striking increase in guestworkers might be a response 

to increased labor demand in the IT field. But employment and wage levels in JT jobs have been 

weak, trends that are not consistent with strong demand. The data also show that there are 

multiple routes into IT employment, most of which do not require a STEM degree: 

Only about a third of the JT workforce has an IT-related college degree. 

36 percent of IT workers do not hold a college degree at all. 

Only 24 percent of IT workers have a four-year computer science or math degree. 

The data also strongly suggest that there is a robust supply()( domestic workers available for the 

IT industry: 

The number of domestic STEM graduates has grown strongly, and many of these 

graduates could qualify for IT jobs. 

The annual number of computer science graduates doubled between 1998 and 2004, and 

is currently over 50 percent higher than its 1998 level." 

4. Some people have suggested that the bill should focus more on family-based 

immigration. What is your view of the right balance between merit-based and familybased immigration? 

I believe that this is a value judgment. There are merits to both sides of the argument. 
456 

5. In your opinion, does this bill treat American workers fairly? 

American workers and students will face more unfair competition from lower cost guestworkers, 

dramatically higher numbers of STEM greencard holders, and the increased outsourcing of jobs 

overseas. There arc some positive elements in this bill, but on balance it will make the STEM 

labor market more unattractive for American workers and students. 

6. Are there sufficient safeguards for American and foreign workers in the bill? 

No. Firms will still be able to pay below-market wages for guestworkers. And American workers 

will not be given a first and legitimate shot at these jobs. 

7. Given the testimony of Brad Smith, do you have any further thoughts on why the 

business community opposes the Grassley/Durbin "good faith effort" requirement, which 

is a simple and straight forward measure that would provide qualified people at home 

with a chance at high skilled, high paying jobs? 

During the hearing, Mr. Smith claimed that Microsoft was doing the kinds of recruitment efforts 

contained in Grassley/Durbin. The company would simply be asked to attest that they are doing 

what he claims Microsoft already does. It doesn't make logical sense why he would oppose it. 

There is plenty of evidence to show that many firms, including many that are non-dependent, are 

not conducting the good-faith recruitment that Microsoft claims to be doing. This is why all 

firms should be required to meet these standards to ensure that American workers are given a 

true first shot at the jobs. 

8. During the hearing, Brad Smith of Microsoft claimed that there are severe and systemic 

shortages of STEM workers. Do you agree with this claim? 

The Salzman, Lowell, and Kuehn paper as well as a recent paper by EPI's Daniel Costa show 

that this is simply untrue. Microsoft's Brad Smith is making elementary, but significant, 

mistakes in the ways in which he is interpreting the BLS data. He is making apples to 

oranges comparisons. 

Costa's paper addresses Microsoft's misinterpretations in detail 

(http://www.epi.org/publication/pm 195-stem-labor-shortages-microsoft-report-distorts/) 

I will highlight two of these mistakes. 

First, Brad Smith claims that the BLS projects 120,000 openings for workers with Bachelors in 

Computer Science. This is based on the false assumption that the only workers who do, and 

could, fill Computer Occupations have a BS in Computer Science. As Costa finds, "less than 

one-fourth to less than one-half of workers in computing occupations have a computer science 

degree." This finding, which is based on NSF data, has been true for many years. The National 
457 

Academies had a similar finding in its landmark 2000 study, "Building a Workforce for the 

Information Economy." In it the authors found that there is no tight coupling between 

Information Technology occupations and specific fields of education. The upshot is that most IT 

workers do not have a Computer Science degree, and most do not need one now or in the future. 

Also, to be clear, the BLS would never sign on to the claim that Brad Smith is making. 

Second, Brad Smith claims that a 3.2% unemployment rate for Computer Occupations is below 

the full employment unemployment rate. This is also false. We would expect 1.5%-2% 

unemployment rates to be an indicator that these occupations could be close to full employment. 

But to make this determination, one needs to look at other labor market indicators including the 

employment level growth and changes in wages. In fact, Salzman finds that for IT, 

Wages have remained flat, with real wages hovering around their late 1990s levels. 

There are always spot shortages in certain sub-specialties and emerging fields where significant 

technological disruptions have occurred. But to be clear that no one has found systemic and 

broad-based shortages in STEM or IT occupations. In some STEM fields, like the Life Sciences, 

there are large surpluses of workers. 

Employers do not have to demonstrate a shortage before hiring an H-1 B, L-1 or OPT worker. 

9. It is clear that the top firms using the H-1 B visa program are taking about 50% of the 

available visas each year. Can you explain how outsourcing firms work and how they are 

taking work offshore? 

There are three principal ways in which the outsourcing finns utilize these visas: 

First, they can bring in cheaper workers into the US to serve clients. They are able to bill out at 

lower rates to because the cost of their labor is less than hiring American workers. 

Second, the firms use the H-1 B or L-1 visa program to bring in guestworkers who shadow 

American workers, learning the American worker's job. This is called knowledge transfer -an 

American worker teaches the foreign guestworker to take over their job. The American worker is 

then laid off and the guestworker may either remain in the US or take the work with him back to 

his home country. 

Third, the H-1 B or L-1 guestworker acts as a liaison to an offshore team. 

In all ofthesc cases, American workers could have and should have kept or gotten the job. 

Instead, they got to guestworkers. 
458 

I 0. Will the bill eliminate the use ofthc H 1-B visa for outsourcing? 

No, unfortunately, the bill falls short in this respect. Many firms, like IBM and Accenture, which 

use the program for outsourcing in the same ways that lnfosys do, will simply pick up the work 

that lnfosys might lose as a result of the bill's curbs on outsourcing. 

But American workers won't be the beneficiaries. The work will continue to go to guestworkers, 

but they will be working for IBM or Accenture instead oflnfosys. This is still extremely harmful 

to American workers and to the American economy. 

Also, the greencard loophole in the bill is very significant. It enables firn1s to get below the 50-

50 rule as well as even H-IB dependency. This loophole will surely be exploited by outsourcing 

firms in order to avoid any of the more stringent requirements for heavy H-1 B users. 

II. How docs it impact the use ofthe L-1 visa and OPT for outsourcing? 

The bill does very little to curb the use oflhe L-1 visa program to facilitate outsourcing. Eight of 

the top L-1 employers from 2008 (the most recent data that is public) are using it to offshore 

jobs. These are mostly the same firms that exploit the H-IB loopholes to use it to offshore jobs. 

12. Could you explain your concerns about the L-1 and OPT visas? 

Both are work visas and neither has a cap nor any protections for US and foreign workers alike. 

OPT workers have been found by analysts to be paid at a steep discount to equivalent American 

workers. The OPT extension allows workers to stay 29 months in a very wide variety of 

disciplines. Some analysts have tbund that OPT workers are being paid at 40% discounts over 

American workers. There is almost no transparency in either program and no one knows, 

including the government, the wages and working conditions being offered these workers. 

No other country operates its intra-company transfer visas this way. The UK government sets a 

high wage floor for intra-company transfers and the Canadian government requires that they be 

paid average wages. 

13. Do you have any suggestions for improving the law so that companies based in the 

United States have a shot at the visas available each year? 

Raise the wage floors and demand by firms seeking cheaper labor will use far fewer of the visas. 

This is the best way in which to meet the needs of these firms. Where real needs can be shown 

the visa program should be used. Right now, the program is being dominated by firms using it 

for cheaper workers. This is crowding out the legitimate use of the program. 

Industry has offered a false choice by claiming that the only way to bring in the best and 

brightest is by allowing firms to bring in much larger numbers of cheaper indentured workers. 
459 

14. Can you elaborate on any other provisions in the bill that I) protect American workers 

and 2) ensure that companies are not abusing the program? 

The outplacement clause for the H-1 8 program is very important to curb abuse. Non-dependent 

firms should also be prohibited from outplacement. 

Another key provision that should be added to the bill is a regular audit for all firms. Right now, 

the bill includes audits only for H-18 Dependent firms. The H-18 program has been so rife with 

abuse that it needs much more oversight to ensure compliance. To date compliance has relied on 

whistleblowers to come forward. Relying on whistle blowers is the worst possible choice in 

designing accountability into any program. 

15. Why do you believe that allowing greencard applications (intending immigrant) to reduce 

the H-1 8 counts is not good policy? 

This is a very significant loophole that has little justification. If news reports are correct, this was 

placed in at the behest ofFacebook and outsourcing firm Cognizant. 

In the case ofFacebook, the company received 305 H-18s in FY12. The company applied for 73 

greencards for its H-18 workers in FY12. Of those greencard applications, 58 were for wages at 

the current Level I or Levell!. It is questionable why it is so critical for Congress to enable 

Facebook to pay lower wages when it is H-IB Dependent. 

This provision may save Face book money by allowing it to pay lower wages to its H-lB 

workers, but it comes at a very high cost to American workers. 

Many firms are likely to take advantage ofthc greencard loophole, and the biggest 

beneficiaries will be the outsourcing firms. There is nothing stopping 1nfosys or Cognizant 

from applying for green cards for all of its 1-1-18 and L-1 workers. Given that there is likely to be 

a backlog for E8-3 visas, they could have workers tethered to them for many years at belowmarket wages. Further, companies like IBM and Accenture, which are likely close to the H-1 8 

Dependent threshold of 15%, will be able to avoid the additional safeguards. 

Industry insiders like Neeraj Gupta believe that this will result in the outsourcing firms viewing 

the greencard application simply as an additional cost of doing business, which will be more than 

offset by the lower fees and lower wages they will be able to pay. 

Companies would begin to sponsor workers for green cards not because they want them to 

stav permanently, but instead to exploit the temporary worker programs. This is a 

perverse use of a precious asset, greencards. 
460 

Senator Jeff Sessions 

Questions for the Record 

Responses from Professor Ron Hira 

"The Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744" 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

I do not have expertise in this area. 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

I believe this is a critical number that should be calculated and estimated. Large numbers will 

have significant impacts on the American labor market. The extent ofthe labor market impact is 

difficult to determine without making reasonable estimates ofthe numbers of green cards that 

will be granted, to clear out backlogs, and also for future flows. In sum, it looks like this bill 

would vastly increase the number of greencards and temporary work permits, swelling the labor 

pool significantly. 

The U.S. already has complex formulas to admit legal permanent residents. We currently grant 

approximately I million new green cards per year. The bill seeks to eliminate backlogs ofthosc 

waiting for a greencard. This includes the approximately 11 million undocumented workers plus 

family-based and employment-based backlogs. 1 do not have good estimates of the latter two but 

I understand that combined they are in the neighborhood of 6 million. That would mean the bill 

would grant 17 million green cards just for clearing out backlogs that would be equivalent to 17 

years' worth of greencards. The labor market impact is mitigated somewhat because many of 

these 17 million are already here. However, the future flows of workers on greencards and 

temporary workers looks to be very expansive. 

On the temporary side, the H-1 B program is likely to at least double from its already large 

current size of700,000 some workers here. And the L-1 and OPT work visas remain uncapped 

and largely unregulated. 

A key issue not addressed in the hearing was the number of legal permanent residents who will 

be cleared from backlogs, as well as future flows of green cards. While I believe that the US 

economy and American labor market can absorb somewhat higher levels of greencards without 

adversely impacting American workers, the numbers in this bill may be high enough to create 

significant negative impacts for American workers. Many ofthe skilled greencard provisions 
461 

are uncapped and bypass the labor certification process, so there is no way to predict, nor 

control, the future dynamics of those seeking green cards. 

There are very low standards, a STEM degree and work in a related field, required to gain one of 

these greencards. So, we can easily predict that the program will be so attractive that large 

numbers of ordinary skilled workers will soon begin to crowd out American workers and 

students in those fields. 

This key issue was not addressed in any of the hearings on this bill yet it might have the most 

lasting and largest impact on the American labor market. 

The bill eliminates labor certification for all STEM graduate students and eliminates the cap on 

their numbers. This will create perverse incentives in the market. Employers will be tempted to 

replace their older incumbent workers with cheaper fresh graduates, fueling age discrimination. 

And universities will be placed in a conflict of interest by becoming the sole gatekeeper for 

issuing greencards. Universities will essentially be able to sell green cards to foreign students. 

Given that Masters degrees are short in duration, and have little oversight from outside bodies, 

this provision will make it inexpensive for foreigners to purchase greencards. We will see a flood 

of foreign student applications, which will crowd out American students from the STEM fields. 

Those foreign students will in tum flood the labor market in the STEM fields, depressing wages, 

and further steering American students from studying these fields. 

The skilled greecard provisions in the bill should be modified to significantly raise the standards, 

institute a labor certification, and the program should be capped. The H-1 B, L-1, and OPT 

programs need significantly more safeguards included. 
462 

Tamar Jacoby 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

Apri122, 2013 

The new W-visa has a cap of200,000 per year after the phase-in. The Pew Hispanic Center 

shows that in March 2000, the annual flow of illegal immigrants was 500,000. 

As our economy improves, will there be enough visas to fill the jobs that are available? 

I fear not. As the economy improves, I fear there will not be enough W visa holders under 

the quotas proposed in S. 744 to fill jobs for which there are no willing or able Americans. 

Unauthorized immigrants come to the U.S. to work, drawn across the border by a powerful 

demand for less-skilled labor. The reason for this demand: the U.S. workforce is changing. 

American families are having fewer children, with birthrates well below replacement level. 

Baby boomers are retiring: 10,000 older· workers are leaving the workforce every day. And 

the younger workers coming up behind them are much more educated than their parents. 

In 1950, 64 percent of U.S. workers were high school dropouts. Today, the figure is less 

than 10 percent. 

Together, these trends are creating a perfect storm, and it is what drew the annual inflow of 

500,000 unauthorized immigrants measured by the Pew Hispanic Center in 2000. In 

subsequent years, Pew Hispanic Center founder Roberto Suro left Pew for the University of 

Southern California where he created the Mexico Migration Monitor, which continues to 

count the annual inflow of unauthorized Mexicans. According to his estimates, every year 

from 2003 and 2009, more than 350,000 unauthorized Mexicans alone entered the U.S. to 

work. At the height of the housing boom, in 2006 and 2007, more than 600,000 entered 

every year. And even in 2011, with the economy just coming out of recession, more than 

150,000 came to the U.S. to fill JObs for which there were no available Americans. 

The most recent numbers avarlable from the Mexico Migration Monitor, for the first half of 

2012, show a slow but continued upturn -just as one would expect with economic 

recovery. 

Bottom line: the W Visa program is not likely to be large enough to accommodate the 

number of workers who entered the country illegally during the boom years of the early 

2000s- or the number likely to enter in the future when the nation's economy has fully 

recovered. 

If there not enough visas, will we see more illegal entries? 

I fear we will. 

Effective immigration control requires three essential elements: border security, workplace 

enforcement and legal channels that can accommodate the flow of fore1gn workers drawn to 

the U.S. to fill jobs for which there are no willing and able Americans. 
463 

Border security and workplace enforcement together will restnct the flow somewhat. But 

unless enforcement measures are accompanied by a worker visa program, they are unlikely 

to stop the immigrant influx. As long as jobs beckon to poor workers on the other side of 

the border, nature is likely to find a way. 

Some people argue that the solution to this problem is eliminating the "jobs magnet." But 

surely in the long run, that would be counterproductive. We can mechanize some of the jobs 

that draw immigrant workers. Over time, effective enforcement might create worker 

shortages that force employer·s to pay somewhat higher wages for this work. But there are 

limits to how high wages can go before consumers stop buying products and services. And 

even with higher wages, it remains unclear how many relatively educated Americans will 

want to work, say, washing dishes in the back of a restaurant. (And even if they did, it 

would hardly be an economically productive use of their educations.) The only other way to 

"eliminate the jobs magnet" is to restrict economic growth so as to reduce the growth of 

low-skilled JObs- but that hardly seems like the right answer. 

Surely a better solution is to create a visa program big enough to meet U.S. labor needs 

with a lawful foreign labor force. 
464 

Senator Jeff Sessions 

Questions for the Record 

Tamar Jacoby, President & CEO, Immigration Works USA 

I. IfS. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

My area of expertise and my testimony pertain to fixing the legal immigration system 

so it works for the future, providing U.S. business owners with lawful foreign workers 

to fill jobs when there are not eno]Jgh Willing and able Americans. 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form oflegal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

My testimony concerned the new W Visa program created by S. 744 to allow lessskilled foreign workers to enter the United States to fill jobs when there are not 

enough willing and able Americans. What I can try to shed some light on: the 

number of immigrants- technically non immigrants- likely to be admitted under that 

new program. 

In truth, even this is extremely difficult to estimate. Among the many unpredictable 

variables: 

1/ How rapidly theW Visa program will grow in size beyond the minimal quotas 

mandated by the bill. 

S. 744 envisions that the number of employer permits issued annually will start in the 

program's first year at 20,000 and could eventually rise as high as 200,000. But 

after Year 4, when the program will be capped at 75,000 permits, we have no idea 

how quickly it will grow. 

2/ How many W visa holders will choose to bring spouses to the United States. 

The bill allows for this, but it is highly unlikely that all program participants will 

choose to do so - after all, many are not married and others will have no intention of 

relocating permanently. They will be coming to the U.S. for temporary work st1ntsand maintaining a family in the U.S. is much more expensive than maintaining one 

at home. 

3/ How many W visa holders will take advantage of the opportunity to switch from a 

short-term visa to a green card track, exiting the W Visa program and applying for 

legal permanent residence under the bill's new merit-based green card preference. 
465 

It's hrghly unlrkely that all program particrpants wrll choose to switch tracks and, if 

the past rs any guide, it may be less than l1alf. In prevrous decades, most 

unauthorized migrants have carne to the U.S. for short work stmts. Sorne stayed 

longer than they rnrtrally rntended because they wer·e afrard that intensified border 

enforcement would prevent thern From reentenng the U.S. again at a later date For 

another work stint. But most of the unauthonzed migrants entering the country in 

recent years were young people lookrng to work in the U.S. for a br-ief period, 

accumulating skills and capital to take back to their horne countries. 

4/ How many employers who qualify to participate in the program will reapply to 

renew therr hiring permits, and how many who do so will retain the same workers 

they hir·ed inrtially under the program. 

This variable is highly relevant because some reapplying employers (those who do 

not retarn the same workers) will count against the annual cap wl1en they renew and 

some (those who do retarn workers) wrll not count agarnst the cap. 

Of these three variables, arguably the most important is the last one- because no 

matter what the breakdown, as long as some reapplying employers count against the 

cap, thrs provrsion will eventually halt the growth of theW visa program. Over time, 

renewals wrll take up all the available W visas. 

In my view, far from being a good thing, this is a signrfrcant problem - lrmrting the 

number· of new workers available to fill jobs for· which there arc no wrlling and able 

Americans. But here's how it would work: 

Prctcmd for simplicrty's sake that the program is capped at 100 hiring permits. 

Permrts last for three years, after which employers can renew. (That part is truenot a hypothetical assumption.) IF all 100 employers who get permrts the first year 

renew in Year 4 and none have retained their original W visa workers, then all wrll 

count against the cap and NO new employers will be able to enter the program that 

year- and as a consequence no additional workers will be authonzed to enter the 

country under· the W Visa program. Thrs despite the fact that the nominal quota for 

that year rs actually 100 permrts. 

Srmrlarly, rf all employers who get permits the first year decrde to renew in Year 4 

and 75 percent of thern have experienced a turnover of W Visa workers and 

therefore count agarnst the cap, only 25 new employer-s- and 25 new workers- wrll 

be able to participate in the progr-am that year. And so on every year after Year 4. 

(After all, there will be a cohort renewing ever·y year frorn Year 4 on.) 

Where this really bcgins to brte: in Year 7 and again even more intensely in Year 10. 

The number of employers participatrng rn the program will inevitably grow in the 

early years. Every tr rne per-mits must be renewed - every three years- there wrll be 

more employer·s who want to renew. And because some percentage of these 

busrnesses will inevitably count against the cap, as their numbers gmw, they will 

increasrngly cannrbalize the quota. Eventually -just when depends on variables # 1 

and #4- there will sirnply be no new permits available and no increase in the 

2 
466 

number· of visas rssued. (No new workers will be permitted to enter the country 

unless they are replacing departing workers.) 

On net, how many foreigners will accumulate rn the U.S. as a result of theW Visa 

program? 

As difficult as it is to estimate, we can speculate about two scenarios- one relatively 

low-growth, one relatrvely hrgh-growth. 

Plausrble condrtrons that would produce low growth: 

The formula designed to regulate the growth and shrinkage of theW Visa 

program produces an annual quota of 100,000 permits in Year 5, but then no 

further increase in the quota. 

All of the employer·s who enroll contrnue to need workers after three years, so 

all seck to renew, but none are still employing the workers they started with 

three years before, so 100 percent of them count against the cap in Year 4 

and ther-eafter. 

Under thrs scenario, the number of new workers admrtted to the U.S. under 

theW Visa program would reach zero rn Year 8 and would not grow 

thereafter. (In subsequent year-s, new workers could enter only to replace 

departing workers.) 

Plausible conditions that would produce hrgher growth: 

The formula designed to regulate the growth and shrinkage of the program 

produces a steadily rising quota that reaches 200,000 permits in Year 9. 

All of the employers who enroll continue to need workers after three years, so 

all seek to renew, but only half are still employing the workers they started 

with three years before, so 50 percent of them count against the cap in Year· 

4 and ther-eafter. 

Under this scenario, the number of new workers admrtted to the U.S. under 

the program would begrn declinrng in Year 9, trending gradually toward zero 

in the years thereafter. 

On net, in my estrmation, over 10 years, the low-gmwth scenario would allow a total 

of 300,000 W visa holders to enter the United States_ Under the high-growth 

scenario, by Year 10, there could be as many as 800,000 less-skilled W visa workers 

present in the country. 

As for Year 15, under the low-growth scenario, the only new workers entering the 

country after Year 8 would be replacing departrng workers, so there would be no net 

growth in the stock of workers pr-esent rn the U.S. between Year 10 and Year 15. 

Under the high-growth scenar·io, by Year 15, the stock present in the U.S. would 

reach 1.075 mrllion. 

Let's assume further that half of these nonimmigr·ants bring spouses with them to 

the United States. In my vrew, that's unlikely- I thrnk the percentage will be lower 

than half- but for ar-gument's sake, let's use the median figure. If this rs the case, 

3 
467 

under the low-growth scenario, the total number of foreigners aclmitted under theW 

Visa program and still in the country after 10 years would be 450,000. The number 

produced by tile high-growth scenar·io would be 1.2 millron. 

After· 15 year·s, the stock pr-oduced by the low-growth scenario will not change. The 

high-growtll scenario would produce a stock 1.6 millron. 

These numbers may seem high, but not in comparison to the number of 

unauthorized immigrants who would lrkely enter the country rn this 15-year per·iod if 

S. 744 fails to pass and there is no W Visa program. 

Every year from 2003 to 2009, more than 300,000 unauthorized Mexicans entered 

the U.S. to fill jobs for which there were no willrng or able Amen cans. At the height 

of the housing boom, in 2006 and 2007, the figure was more than 600,000. Even 111 

2011, with the nation Just coming out of recession, more than 160,000 unauthorized 

Mexicans came to find work. And accor-ding to the respected Mrgration Policy 

Institute, in years ahead even a tepid economy will likely require upward of 320,000 

~1exican workers a year to fill jobs that wrll not be filled by U.S. workers. 

What do these MPI projections tell us aiJout the total number of unauthorrzed 

workers likely to enter the U.S. over the next decade absent a worker visa program 

like theW Visa7 At 320,000 a year·, at the end of 10 years, 3.2 million additional 

unauthorized Mexican workers will have entered the United States. If half of them 

bring spouses- the same percentage we assumed would bring spouses in the 

scenarios above- the total number· of new unauthorized Mexicans present in the 

U.S. will grow to 4.8 mrllion. 

At the end of 15 years, there will be 4.8 million unauthorized workers, and the total 

stock - with spouses - will add up to 7.2 million. 

Which outcome would be better for the U.S. -tile VV visa scenario or contrnued 

illegal immigration? As I see the options, in Year 15 we could have 7.2 million new 

unauthorized immigrants living among us but beyond the rule of law- many of them 

people whose real names we don't know, who l1ave never undergone a background 

check and who we have little or no power to force to return to their home countries. 

Or we could be benefiting from the labor of 1.6 million guest workers and spouses 

here lawfully on permits and scheduled to return home on a date certain. 

In my view, rt's an easy choice- not really a choice at all. 

The best answer to illegal immrgration is a legal rmmigration system that works. 

The VV Visa program is a thoughtful, well-crafted bluepr·int. In my estimate, if 

anything, it may be too small to meet the labor needs of a vibrant, growing U.S. 

economy. But rt certainly strrkes me as preferable to a new generation - much larger 

in number- of unauthorized immigrants living beyond the rule of law. 

4 
468 

,.............. 

NAHB., 

National Association of Home Builders Rick Judson 

120115lh Street NW 

Washington. DC 20005 

NAHB 2013 Cha1rman of the Board 

T 800 368 52~2 

F 202 266 8'·00 

nahb.org 

May 1, 2013 

The Honorable Jeff Sessions 

U.S. Senate 

326 Russell Senate Office Building 

Washington, DC 20510 

Dear Senator Sessions: 

It is with appreciation that I received your questions following the Senate Committee 

on the Judiciary hearing entitled, "The Border Security, Economic Opportunity, and 

Immigration Modernization Act, S.744" on April22, 2013. On behalf of the more than 

140,000 members of the National Association of Home Builders (NAHB), I appreciate 

the opportunity to testify. 

I agree with you that a thorough analysis of the legislation is imperative. I regret, 

however, that I am unable to comment on the U.S. Department of Homeland 

Security's capacity for fulfilling its responsibilities, which is outside our range of 

expertise. NAHB is also unable to comment on migration patterns in the United 

States, as we do not have data on this for analysis. 

We look forward to continuing to work with you as S.744 moves forward in the 

legislative process. Thank you again for sharing your questions with us. 

Sincerely, 

;8d_~~ Rick J on 

2013 · airman of the Board 

cc: Chairman Patrick Leahy 
469 

Senator Grassley's questions to witnesses regarding the hearing on "The Border Security, 

Economic Opportunity, and Immigration Modernization Act, S.744" on April22, 2013 

Questions for Janice Kephart 

1. At the April 22, 2013 hearing, we heard many perspectives on comprehensive 

immigration reform. Was there any testimony offered by other witnesses that you 

found problematic, and bow would you respond to it? Do you have any additional 

comments on issues that were discussed at the hearing? 

My main concern is that there are numerous national security loopholes in the bill that have gone 

unaddressed. My expertise is not in what nearly all the other witnesses spoke to, so I would like 

instead to speak to what is problematic in issues I did not hear discussed during the course of the 

hearing. 

The first is a general statement about the basic premise of granting immediate RPI status to 

millions of individuals whose identities we can not know. Today, USCIS struggles to find fraud 

and root it out in its current application vetting process. Adding II million on to that, or as some 

estimates state, 33 million potential recipients of RPI status in a timely manners, requires USC IS 

to either (I) rubber stamp the RPI applications or (2) produce tremendous backlogs that by the 

very nature of the bill will put current applicants more out oftime with current processing. 

Former executive-level long-time employees of USC IS tell me that USCJS cannot even handle 

current applications and problems. The processing problems persist and S. 744 does not solve 

them. The result is a tremendous fraud and national security vulnerability that takes us back to 

before 9/11. Even on 9/11, all applicants were receiving vetting and most were interviewed. 

There are no controls inS. 744 at all. The process is completely blind without identity vetting, 

and a criminal background check does little in these circumstances to assure security. 

Here are some other issues with S. 7 44, perhaps the most visible and egregious. I do not attempt 

to capture them all here, but hope this listing provides some insight into substantial issues with S. 

744, and recommendations for solving them. Many of these reflect the bipartisan agreements 

made in the 2007 push for comprehensive immigration reform 

Border Security: 

• Require actualfencing per an update to the specific fencing language in the Secure Fence Act 

of2006. 

• Remove triggers, high risk sector demarcation, and require instead "operational control on I 00 

percent ofthe border" as defined in the Secure Fence Act. Right now, S. 744 puts forth a 

metric that can be summed up as follows: "only 1/3 (if that) of the southwest border, not 

northern or coastal borders, measured only by apprehensions we say are happening, need be 90 

percent secure, to trigger the path to citizenship". That's not a measure of border security. 

That's a permission slip for an open border. 

• Exit-- strike provision which marginalizes and further confuses current law, and reaffirm that 

land exits and an eventual biometric (referencing appropriation language on US VISIT from 

April2013). 
470 

Kephart answers to Sen. Grass!ey 4/30/20 13 

National Security: 

• Strike language allowing absconders and aliens who have already been deported to claim the 

amnesty-- these individuals have already been provided due process and removed for reasons 

that range from violating immigration law to being a national security threat. 

Strike language that enables dangerous felons given temporary status under DACA to be 

legalized. 

Identity Vetting and Document Fraud: 

• Require identity documents (passport or government issued ID) presented at time of 

initial application, and checks via watch lists, criminal data, national security data, 

immigration data, interviews as an option but required for any watchlist hit (Tsarneav 

was on watchlist but not interviewed) no matter at time of application or seeking readmission to US-- to assure against terrorists like Tsameav from using legalization to 

then go abroad for terror support/training and return, no questions asked. 

• No RPI issuance prior to completion of all the checks listed above. 

• Require that five percent (or more) of RPI applicants receive random interviews. 

• Require the RPI and all applications be electronic 

• Penalize those who knowingly engage in immigration benefit fraud should also be fined 

and barred/precluded from filing applications and petitions with USC IS for at least five 

years, and then only after having paid the fine and demonstrating rehabilitation. 

Agricultural, Wand Day Workers: 

• Biometric exit required per prior law, pilot projects that were never completed. lfbiometrics 

are not required, then this workforce will likely not honor their length of stay, nor will we 

know who they really are. This is a well vetted idea that was piloted previously, but not well. 

• Strike the new definition of "employer," found in the amendment to INA Section 274A(b)(3) 

on page 402 of the bill exempts any employment that is "casual, sporadic, irregular, or 

intermittent." The express definition of"employer" excludes anyone that hires someone in any 

of those situations. Currently, many of the ways in which illegal immigrants obtain labor will 

thus no longer be unlawful. 

Monetary Impact of Low Skill Workers: 

· Require back taxes per first draft of bill and President's promises-- why do illegals no longer 

have to pay their debt to America? 

Higher Workers: 

- E-Ver(fy as is (not the change in the bill that starts E-Verify at ground zero) and mandatory. 
471 

2. As you know, Department of Homeland Security Secretary Janet Napolitano 

testified before the Judiciary Committee on April 23, 2013. Much of her testimony 

focused on the issue of border security and the discretion that the proposed bill gives 

to the DHS Secretary. Do you agree with Secretary Napolitano's assessment that 

this legislation should be enacted largely as it is currently written? What do you 

believe comprehensive immigration reform must include so that it avoids the 

problems that followed the 1986 reform? 

S. 744 takes America back to pre-9/11 standards, recreating- in much larger volume- many of 

the immigration vulnerabilities which the 9/11 hijackers and many other terrorists have taken 

advantage of time and again. This bill does not solve serious bureaucratic problems with legal 

immigration processing, which should be the core focus of reform alongside of attaining a 

secure border which can operationally control the flows of illegal aliens, terrorists and 

contraband through our borders while providing a well, fair, and just processing for those 

seeking to immigrate legally. 

3. How meaningful are the triggers contained in the bill? 

The triggers in the bill are meaningless. Beyond that, the triggers will roll back current security 

by not requiring a truly secure border. As I stated in my answer to Q 1: Right now, S. 744 puts 

forth a metric that can be summed up as follows: "only 1/3 (if that) of the southwest border, not 

northern or coastal borders, measured only by apprehensions DHS says are happening, need be 

90 percent secure (a measure impossible to measure), to trigger the path to citizenship". Maybe 

securing 1/3 of the border is not an attempt at securing the border. That's a permission slip for 

an open border. 

4. In your opinion, does the bill guarantee that the problems with our current level of 

border security will be addressed? 

Not at all. See prior answers. 

5. What are the national security implications of granting legalization without 

establishing objective standards to measure border security? 

S. 744 enables anyone who applies for RPI to get the status minus identity vetting, national 

security vetting, as soon as the application is submitted. There is no requirement for vetting first. 

And no requirement to secure the border before this initial status is granted. That means any 

terrorist or criminal can use the legalization process to embed and assimilate for as long as 

necessary to carry out an attack. The facts and circumstances of the April 2013 Boston 

Marathon Terrorist attacks is a perfect example, as I discuss in my written testimony. 

6. Do you believe that the bill strengthens our national security and makes our 

homeland safer? Why or why not? 

Absolutely not, for all the reasons stated here and in my testimony. 

7. In your opinion, does the bill strengthen or weaken our current immigration laws'! 
472 

Kephart answers to Sen. Grass ley 4/30/2013 

I'm not sure whether S. 744 strengthens or weakens current immigration law. I would say it 

usurps most immigration law, including the need for enforcement in many instances. 

4 
473 

Kephart Answers to Sen. Lee Questions 4/30/2013 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

April22, 2013 

Janice Kephart 

Q 1. By what metric is "border security" currently determined? Is this metric effective? 

Is the same metric used in the bill? 

Today there exists no definition of"border security". However, there are at least three versions 

currently in government circles which are stated as measuring border security. 

• The first is "operational control", a legal term which requires the border be maintained to 

keep out illegal aliens, terrorists and contraband across J 00 percent of the border. This 

definition is set out in the Secure Fence Act of2006. Prior to its legal definition, "operational 

control" was a term used within the Border Patrol to allocate resources to areas so that the 

Border Patrol could determine what was necessary to be operational in that locale. That tenn, 

whether the Border Patrol has decided to use another measure or not, remains law. I discuss 

that tenn and its meaning below at length. 

• The second is lower apprehension numbers. Secretary of Homeland Security Napolitano has 

stated numerous times that lower apprehension numbers indicate that the border is as secure as 

it has ever been. 

• The third is what I will call a "we feel safe" measure, a relatively new metric that remains 

undefined, is not in law, and has no objective measure to make the determination as to whether 

the border is secure. In fact, the measure does not describe nor help determine whether the 

actual border is secure, or safe, or under operational control as defined in the Secure Fence Act, 

at all. Border Patrol Chief Mike Fisher testified before the House in February 2013 about this 

new measure, which is not Jaw, as follows: 

We arc here today to discuss what a secure border looks like .... For border communities, 

a secure border means living free from fear in their towns and cities. It means an 

environment where businesses can conduct cross-border trade and flourish. For other 

American communities, it means enjoying the benefits of a well-managed border that 

facilitates the flow of legitimate trade and travel. See 

http://docs.house.gov/meetings/HM/HM 11/20130226/1 00300/HHRG-113-HM 11-WstateFisherM-20 130226.pdf, from House hearing, 'What Does a Secure Border Look Like?' 2/26/13 
474 

Kephart Answers to Sen. Lee Questions 4/22/2013 

In contrast to the limiting measure of "low apprehensions" and amorphous measure of "we feel 

safe", there is a metric the measure the Border Patrol traditionally understood and built its 

resources upon, known as "operational control". That is defined clearly and succinctly under 

the Secure Fence Aet of 2006, PL I 09-367 [http://www.gpo.gov/fdsys/pkg/PLA WI 09publ367/html!PLA W -l 09publ367.htm]. This is not the metric inS. 744. 

The White House Fact Sheet for the Secure Fence Act of 2006 (and the 2006 outline of 

comprehensive immigration reform) is here [http://georgewbushwhitehouse.archives.gov/news/releases/2006/l 0/20061 026-l.html]. 

The Secure Fence Act makes clear the definition of''operational control" (my emphasis added 

below): 

SEC. 2. <<NOTE: 8 USC 1701 note.» ACHIEVING OPERATIONAL CONTROL 

ON THE BORDER. 

(a) <<NOTE: Deadline.>> In General.--Not later than 18 months after the date of 

the enactment of this Act, the Secret my ofHomeland Security shall take all actions the 

Secretary determines necessary and appropriate ro achieve and maintain operational 

control over the entire international/and and maritime borders of the United States. to 

include the following--

(I) systematic surveillance of the international land and maritime borders oft he 

United States through more effective use of personnel and technology, such as 

unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and 

cameras; and 

(2) physical infrastructure enhancements to prevent unlawfol entry by aliens 

into the United States and facilitate access to the international land and maritime 

borders by United States Customs and Border Protection, such as additional 

checkpoints, all weather access roads, and vehicle barriers. 

(b) Operational Control Dejined.--In this section, the term "operational control" means 

the prevention of all unlawful entries blto the United States, including entries by 

terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other 

contraband. 

(c) Report.--Not later than one year after the date of the enactment o,{this Act and 

annually thereafter, the Secretary shall submit to Congress a report on the progress 

made toward achieving and maintaining operational control over the entire international/and 

and maritime borders of the United States in accordance with this section. 

Top Ten Reasons Why the S. 744 Border Seeurity Metric is Unnecessary and Unhelpful 

2 
475 

Kephart Answers to Sen. Lee Questions 4/30/2013 

1. The S. 744 "effectiveness rate" metric only requires the Secretary of Homeland Security to 

assure Congress via reporting that the border is secure, not actually secure the border. On 

numerous occasions, including before the Senate Judiciary Committee, the current Secretary 

Napolitano has asserted that the border is more secure than it ever has been and that the metric 

for security the Secretary has been using -- apprehensions statistics - are down. 

However, internal DHS documents, received on a daily basis by DHS, show that for two years 

the apprehension numbers on the southwest border are going up. Considering that S. 744 

focuses on the southwest border, the fact that border apprehensions have risen for two years, not 

declined, would have been helpful to the nation's consideration of whether we are ready for 

comprehensive immigration reform. 

What we now know is that internal Department of Homeland Security documents produced daily 

by the Border Patrol make clear that as of April 2, 2013, southwest apprehensions across nine 

Border Patrol sectors rose during this same time frame in both 2011 and 2012. More 

specifically, the FY2103 compared to FY 2012 shows a l3 percent increase in apprehensions 

(from 170,223 to 192,298) and a 16 percent increase in apprehensions comparing FY20l3 to 

FY2011 (from 165, 244 to 192,298). 

Here are excerpts from DJ-IS extensive data highly relevant to the debate today pertaining to the 

southwest border: 

U.S. BORDER PATROL STATISTICAL DATA 4/2/13 

Southwest Border Apprehensions (9 USBP Sectors) 

FY2013 YTD Cumulative 

FY2012 YTD Cumulative 

FY2011 YTD Cumulative 

FY20l3 compared to FY2012: 

FY2013 compared to FY201l: 

192,298 

170,223 

165.244 

13 °/o increase 

16 % increase 

Total U.S. Border Patrol Apprehensions 

FY2013 YTD Cumulative 

FY20!2 YTD Cumulative 

FY20l3 compared to FY2012: 

195,287 

174,187 

12 % increase 

Total Year to Date U.S. Border Patrol Drug Seizures 
476 

Kephart Answers to Sen. Lee Questions 4/22/2013 

FY2013 YTD Marijuana Totals 1,331,512 

FY2012 YTD Marijuana Totals 1,272,456 

5% increase 

(Note: Data shows total apprehensions down in northern and coastal sectors) 

2. As I stated in my testimony, the 90 percent "effectiveness rate" laid out inS. 744 to measure 

border security depends on a 100 percent detection rate of illegal aliens crossing the border. 

As Secretary Napolitano has agreed in her April 23, 2013 testimony before this Committee, 

the ability to detect I 00 percent of illegal crossings is not occurring today, and likely is not 

possible due to geographic constraints. Thus the metric's construction fails because the 

denominator (detections) can not be accurately measured. 

3. The S. 744 border security metric only measures Border Patrol activity (apprehensions) 

and not results (actual reduction in illegal crossings and contraband, and enhanced national 

security and public safety). A sole focus on apprehension numbers both(!) focuses on what 

the Border Patrol is doing and not on results; (2) reduces accountability to Congress and the 

American people as to how secure the border actually is; and (3) excludes from the definition 

what the Secure Fence Act includes "means the prevention of all unlawful entries into the 

United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, 

narcotics, and other contraband." I 

I have written much on terrorist entry and need not repeat it here, but any metric that only 

considers numbers of apprehensions important when one terrorist can attack and kill Americans, 

docs not make much sense. Neither does ignoring contraband, weapons or drugs. Nor does 

ignoring special considerations when surges occur in illegal crossings from those from Special 

Interest Countries (which does not include any of the former Soviet Republics, but most other 

countries known to harbor terrorists). 

4. The GAO [http://www.gao.gov/assets/660/65233l.pdf.] agrees that the sole focus of the DHS 

on apprehensions means Congress cannot adequately provide oversight of DHS activities, 

nor ofDHS headquarters over CBP. Here is an excerpt from GAO February 2013 

testimony before the House Homeland Security Committee: 

Since .fiscal year 2011, the Department of Homeland Security (DHS) has used changes in 

the number of apprehensions on the southwest border between ports of entry as an 

interim measure for border security as reported in its annual pe1:{ormance plans. In .fiscal 

year 2011, DHS reported a decrease in apprehensions, which met its goal to secure the 

southwest border. 

4 
477 

Kephart Answers to Sen. Lee Questions 4/30/2013 

At the end of fiscal year 20 I 0, DHS reported achieving vmying levels of operational 

control of 873 (44 percent) of the nearly 2. 000 southwest border miles. In fiscal year 

2011, ciling a need to establish new goals and measures that reflect a more quantitative 

methodology and an evolving vision for border control, DHS tram·itioned to using the 

number of apprehensions on the southwest border as an interim goal and measure. As 

GA 0 previously testified, this interim measure, which reports on program activity 

levels and not program results, limits DHS and congressional oversight and 

accountability. 

5. A metric that measures apprehensions and turnbacks only, but ignores surges and lulls 

in activity, does not represent actual illegal activity. I lay out a series of examples in my 

testimony, which focuses on the surge currently taking place over the Arizona central border 

region. This area, representing most of the Tucson Sector, had a 494 percent surge in illegal 

crossings and activity from August 2012 to December 2012, and Border Patrol pilot audio 

from March I, 2013 state that pilots are seeing group sizes of crossings now that has those in 

the field stating they are being "inundated". Yet the numbers for actual apprehensions for the 

first four months of 21 03 in Tucson are -1%. Does that make sense? Perhaps there is an 

explanation, but the apprehension metric does not reflect or explain this type of data. Rather, 

the DHS apprehension data appears to contradict it. Thus, the metric appears to be incomplete 

at best, and misleading at worst. 

6. The secure border definition of "operational control" already exists in the Secure Fence 

Act. This definition is comprehensive yet flexible, and one which the Border Patrol was 

working to achieve in past years, if not fully implemented. The current definition creates a 

clear standard and mission that is inclusive of what it takes to preserve our national security, 

expanded to include lessons teamed from 9/ I I and terrorist travel studies I subsequently 

conducted after the 9/11 Commission. 

Maintaining the DHS mission of seeking operational control of the border, and a continued 

build-out of creating an accurate metric from within the Border Patrol, approved by CBP and 

authenticated at the DHS headquarters level, is the best option to do so. CBP has been on this 

path for some time, continued to improve its "operational control" metrics which are reflected in 

part in the vast data they produce to determine where to allocate resources currently. Allowing 

them to continue to do so-- while encouraging DHS headquarters to support that mission with 

technology, infrastructure and sound enforcement policy-- is the best option for securing the 

border. 

"High risk sectors" in the bill are an arbitrary, capricious, limiting and unhelpful added element 

that micro-manages the Border Patrol's ability to realign resources in sectors that may be under 

significant threat. To be clear, I do not see the problem of achieving border security as residing 

with the current law's definition of"operational control". Changing the law now will not create 

better border security, but likely exacerbate current problems. 
478 

Kephart Answers to Sen. Lee Questions 4/22/20 !3 

7. Requiring "effective control" in only three high risk sectors does not align with current 

Border Patrol data regarding apprehensions, and does not reflect the need for flexibility 

in order to be effective to the ebb and flow well known to exist in smuggling operations that 

can concentrate in one sector or spread out, contract again, etc., all in relatively short time 

frames. Right now four Texas sectors are surging in activity while Tucson remains at nearly 

double the others in apprehensions. indicating that only requiring three sectors to be secure to 

declare an ''effectively" secure border to trigger a second wave of legalization. is out of sync 

with data and any common sense approach to determining whether a border is operationally 

under control and secure. 

These short time frames are made stiff and stringent in S. 744, with only annual reviews of 

"effective'' sectors. 

According to the internal documents shared within the Border Patrol and with headquarters on a 

daily basis, as of April2, 20l3,.four Texas sectors have seen a significant increase in 

apprehension numbers in comparison to the same time frame last year. and one, Tucson has 

remained almost the same producing almost twice the illegal apprehensions than any other 

sector. 

The chart below breaks down apprehensions with percentage change across the southwest border 

sectors. Note in my testimony that at least in major portions of the Tucson sector, we know the 

Border Patrol is not detecting all illegal activity across the border, and not all smuggling 

operations are pursued. 

6 
479 

Kephart Answers to Sen. Lee Questions 4/30/2013 

8. 30,000 apprehended per year is not a number Congress should be requiring as a 

threshold. Border control should be measured by a broader array of elements as the Secure 

Fence Act does-- terrorists, contraband, weapons and drugs-- which requires the Border Patrol 

to not just measure apprehensions and recidivism (although helpful), but also Special Interest 

Country aliens and Other Than Mexican statistics. The Border Patrol should be free to make 

that determination about threat, risk and allocation of resources. Having an arbitrary number 

set at 30,000 proscribed in law is a a stiff calculation that is arbitrary and capricious, and limits 

the ability of the Border Patrol to respond in an appropriate and timely manner. 

9 . • Just because a sector does not see an increase in apprehensions does not mean it is not 

high risk; if illegal crossings are always high, then that sector as well is a high risk sector. If 

certain special interest aliens are known to use a certain sector, than that area could also be 

considered high risk. 

10. The border security portion of S. 744 does require a border fencing strategy, but it 

neither (1) builds out on the requirements of the Secure Fence Act to maintain some level 

of consistency in infrastructure; (2) nor actually requires any fence to be built. It will be 

nearly impossible for the Border Patrol to increase apprehensions and achieve effectiveness 

without necessary infrastructure in place such as double fencing where geographically 

feasible. Note that only a small portion of the over 2,000 miles of southwest border is fenced 

today. According to the CBP website 

[http://www.cbp.gov/xp/cgov/border security/ti/ti news/sbi fence/], 652 miles of the project 

begun under the Bush administration has been completed. 

Of these 652 miles, only 352 of these miles is pedestrian fence. The 299 miles of vehicle fence 

does nothing to stop either pedestrian or vehicular traffic, and really only acts as a boundary 

demarcation. To be clear, the Obama administration did not, as far as I know, ever begin 

undertaking any new fencing, but rather completed contracts already in place during the Bush 

administration. In addition, much of the pedestrian fence is not doubled or reinforced to prevent 

cut-throughs or climb-overs as in San Diego or Arizona's Yuma Sector which has extremely 

successful fencing. Thus, while a fencing strategy in S. 744 is a helpful start to maintaining 

border integrity and supporting the Border Patrol mission, it is not that helpful. Requiring the 

infrastructure to be in place is what is actually helpful. 

10. Low risk sectors are largely ignored inS. 744. There is a requirement, which is helpful, in 

Sec. 5(a)(5)(C)(iii) that requires that semi-annual border security reports submitted by CBP to 

Congress include (I) each sector's effectiveness rate; (II) number of recidivist apprehensions by 

sector; and (III) that recidivism rate meted out by criminal consequence. While helpful, that 

does not mean a reallocation of resources or support to any sector outside the top three as far as I 

can tell. 

7 
480 

Kephart Answers to Sen. Lee Questions 4/22/2013 

Q 2. When calculating total illegal entries, besides watching someone cross the border 

without apprehending them, how does DHS decide that an illegal entry has occurred? 

Here is what the GAO [http://www.gao.gov/assets/660/652331.pd0 says about determining 

illegal border crossing activity: 

We defined these illegal entries as estimated .. known .. illegal entries to clarify that the 

estimates do not include illegal entrant.~ for which Border Patrol does not have 

reasonable indications of cross-border illegal activity. These data are collectively 

referred to as known illegal entries because Border Patrol officials have what they deem 

to be a reasonable indication that the cross-border activity occurred. Indications of 

illegal crossings are obtained through various sources such as direct agent observation, 

referrals from credible sources (.wch as residents), camera monitoring, and detection of 

physical evidence left on the environment/rom animal or human crossings. 

Q 3. What specific border security measures does this bill require in the non-high-risk 

sectors? 

I do not see that S. 744 requires border security measures in the six sectors on the southwest 

border not labelled high risk. Please see Answer no. I, reason I 0. 

Q 4. If, five years after the enactment of the bill, one of the current non-high-risk sectors 

becomes "high-risk" due to an increase in illegal crossings, do the border security 

requirements for those sectors also increase? 

It appears that the language of the bill only requires three sectors at a time to qualify for "high 

risk". If one shifts into high risk, it appears to me that another will shift out and mandate a 

reallocation of resources no matter what the current circumstances include. I may be inaccurate 

in my analysis, but that is what appears to me to be the case under the language I have reviewed. 

8 
481 

Kephart Answers to Sen. Sessions 4/30/2013 

Senator Jeff Sessions 

Questions for the Record 

Janice L. Kephart, Former Counsel, September 11 Commission, 

Principal, 911 Security Solutions 

1. If S. 744 were to become law, do you believe that the Department of Homeland 

Security would deport those who enter the country illegally or overstay their visas 

after the bill's enactment? 

No, not unless the individuals fell in a high priority category, such as known terrorist or public 

safety threat to America. The "prosecutorial discretion" memos made clear two years ago that 

the Obama administration intended to not carry out immigration enforcement in a manner 

consistent with the law, including not apprehending or removing those who entered illegally or 

overstayed their visas. This was a stated policy that evolved from USCIS headquarters to DHS 

headquarters to ICE itself. For the politics behind the scenes on how immigration enforcement 

was intentionally set to be reduced over time, see my memo, "Amnesty by Anv Means" and my 

series of''ICE Mission Melt" memos that outline how the reduction in interior enforcement 

manifested itself subsequently: 

ICE's Mission Melt 5: Another No Confidence Vote for Morton 

ICE's Mission Melt 4: Houston. We Have a Problem 

ICE's Mission Melt 3: Endangering America 

ICE's Mission Melt 2: It Won't Sav Yes to Congressional Support 

ICE's Mission Melt: Agents Vote 'No Confidence' in Leadership 

In addition, the policy not only manifested itself in two votes of No Confidence for ICE 

leadership by ICE union members, mandated reductions in DOJ immigration case load, failure to 

request appropriations for responsibilities ICE said it did not have the capability to respond to, 

but also in actual numbers. Here are some key items from a March 2013 Center for Immigration 

Studies Fact Sheet found here: 

• The most significant decline in arrests- 70 percent- was in the Homeland Security 

Investigations division, which is responsible for worksite enforcement, transnational gang 

cases, national security, and certain non-immigration related casework. HSI arrests declined 

from 54,000 in 2007 to 16,000 in 2011. 

• Enforcement agencies can order aliens "removed", which includes a bar to future entry for a 

time, or "returned", a simpler procedure in which the alien departs, but without penalty or a 

hearing. Since 2007, the number of aliens ordered removed has increased by 23 percent, while 

the number returned has decreased by 64 percent. 

• When taken together, the total number of removals and returns has declined 41 percent since 

2007, from 1,210,000 to 716,000 in 2011. 

• ICE reports that it removed and returned about 4IO,OOO aliens from the country in 2012. This is 

an increase of 14 percent over the last five years, with the steepest increase occurring between 

2008 and 2009. However, ICE's latest removal/return statistics include more than 85,000 aliens 

that were apprehended by the Border Patrol, which traditionally have not been counted with 

removals. ICE has not published a breakdown of border arrests vs. interior arrests. 
482 

• More than 1.2 million criminal aliens arrested by local police have been identified through the 

Secure Communities program since 2009. Of these, 247,000 have been removed so far. 

According to a Congressional Research Service analysis, over a 2.5-year period they studied, 

ICE also released tens of thousands of deportable criminal aliens, of whom 26,000 were later 

re-arrested for new crimes within the time frame ofthe study. 

• Data from the Secure Communities program indicate that about half of aliens selected for 

removal are either multiple or repeat immigration violators, and about one-fourth are 

individuals who illegally re-entered after a previous deportation, which is a felony under 

federal criminal statutes. 

• An independent research group at Syracuse University, the Transactional Records Access 

Clearinghouse (TRAC), which obtains immigration court data from the federal government, 

reports that, since 2009, there has been a significant decline in the number of aliens that ICE 

has brought to immigration court. The number of immigration court filings has declined 25 

percent since last year, and 30 percent since 2009. 

In addition, the percentage of aliens ordered deported by immigration judges is the lowest rate 

since 1998, according to TRAC. Last year, judges ordered removal in 57 percent ofthe cases, 

and granted the alien's request to stay 43 percent ofthe time. 

• It appears that the number of aliens who have failed to abide by deportation orders is rising. In 

2012, ICE reported that there were 850,000 aliens present in the country who had been ordered 

removed or excluded, but who had not departed. In 2008, DHS said that there were 558,000 

"fugitive aliens''. 

2. If S. 744 were to become law, how many total new immigrants, including those 

currently here illegally who would be granted some form of legal status and those who 

would be admitted to the country under all categories of chain migration, would be 

added to the United States over a ten-year period following the date of enactment and 

over a fifteen-year period following the date of enactment? 

I do not know. The only organization I'm aware of that has attempted to place a number on 

those who would gain legal status under S. 744 is NumbersUSA, whose leadership states that 

"33 million lifetime work permits to be given to foreign citizens in the first decade after the bill 

passes." See the blog here. 

To be clear, I have no way of knowing how many total new immigrants S. 744 would legalize. 

I'm not sure anyone can really predict fully the numbers which encompass those already here 

that seek legalization, their family members, and some of those previously deported as well. 

What is even more troubling is that there is no way to truly predict over the next ten to fifteen 

years the consequences of far-reaching legalization provisions on future governmental programs; 

on culture and assimilation; nor public safety and national security. 

The effect of S. 744 should be thoroughly reviewed for a prudent, thoughtful discussion on what 

immigration means to America; what we want it to look like in years to come; and whether this 

legislation fulfills that mission. 
483 

Senator Jeff Sessions 

Questions for the Record 

The Honorable Jim Kolbe 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a tifteenyear period following the date of enactment? 

These questions are beyond the scope of my testimony to the committee, so I would refer you to 

my colleagues on the panel who might provide answers to these questions. 

Sincerely, 

Jim Kolbe 

Former Member of Congress 
484 

Senator Jeff Sessions 

Questions for the Record 

Laura L. Lichter, Esq., President, American Immigration Lawyers Association 

I. IfS. 744 were to become law. do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

I do not see anything in the bill that would prohibit DHS from removing those not 

eligible for relief. The Department has broken all previous records when it comes to 

number of removals. If history predicts the future, it would appear that the Department 

would continue to remove people after enactment as they have before, and the bill would 

provide even more resources to do so. 

2. IfS. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteenyear period following the date of enactment? 

The bill goes a long way towards providing a comprehensive solution, but will inevitably 

leave many immigrants out of the picture. Not everyone who wants to immigrate to the 

United States will have a path under the bill, but the bill does a reasonable job of 

identifying and providing a legal option for people who our economy and our values say 

we should let in. It could do better on family values, but it is a strong step forward 

regarding our economic needs. The number is unclear, but it's not the number that is 

important. What matters is that fairness and workability are built into the system. 
485 

Senator Jeff Sessions 

Questions for the Record 

Janet Murguia, President and CEO, National Council of La Raza 

Question: If S. 744 were to become law, do you believe that the Department of Homeland 

Security would deport those who enter the country illegally or overstay their visas after the 

bill's enactment? 

NCLR Response: 

Yes. In the last several years, deportations have risen and remain at record levels, measured in 

both absolute and relative terms. The additional investments and technological upgrades in 

immigration enforcement included inS. 7 44, if properly implemented, would give us reason to 

expect that immigration law enforcement not only will continue, but will be smarter and more 

effective in the future. 

Question: If S. 744 were to become law, how many total new immigrants, including those 

currently here illegally who would be granted some form of legal status and those who 

would be admitted to the country under all categories of chain migration, would be added 

to the United States over a ten-year period following the date of enactment and over a 

fifteen-year period following the date of enactment'! 

NCLR Response: 

To begin with, we would like to correct some misconceptions included in the question: First, 

neither the current undocumented population nor those already in line for visas would constitute 

"new" immigrants to this country. In the first case, one (!f the major catalysts for reform is the 

fact that the undocumented are already here, and many have been for years, working, raising 

families, and, in other wtrys, becoming part of American society. In the latter case, S. 7 44 would 

simply reduce the unconscionably long wait times for many of those who apply to reunite with 

their closest family members. 

Second, "chain migration" is not a fact but a pejorative term used by opponents of legal 

immigration to denigrate and grossly exaggerate the impact (if legal family immigration, a 

bedrock principle of our immigration system. As noted above, the process for reuniting with 

families is both quite arduous and prolonged. It can, and does, take years for qualified 

applicants to receive a visa and in the vast majority of cases, if and only if they meet certain 

eligibility requirements, demonstrate they can support themselves, and a family member also 

legally commits to supporting them. The idea that this process is either quick or ea~~v is refuted 

by the considerable backlogs in many categories that S. 744 seeks to remedy. 

As for the effect of S. 7 44 on new immigrant entries, both authorized and unauthorized, there are 

a number of agencies and research organizations working on this but we would point the 

committee to the Center for American Progress (CAP), whose highly respected policy analysts 

have produced a series of estimates, summarized below, comparing net levels of immigration 
486 

v.·ith and without enactment of S. 7 44. The National Council of La Raza (NCLR) believes it 

represents a credible, i11formed estimate offuture immigration levels under either scenario. In 

short, CAP estimates that the legislation may result in a net annual decrease of 151,200 (-see 

Chart 1 belo1t). Current levels are calculated at 1. 74 million, while new entries are estimated to 

be 1.59million. One ofthe most significant impacts is on the levels r!funauthorized 

immigration, which will be reduced by about 90%. 1 

Chart 1. Centerfbr American Progress 

The Senate Immigration reform bill will actually redu<e the number 

of people entering the <ountry 

Category Current 

Nll\ 

140,000 

MeriHJased vis~s· fill A 

470/lt)(l 

Capped family visas 226,00() 

50,000 

169,.000 

6$8,00!1' 

Tot~! 1,743,001) 

Net new immigrants under S. 744 

future' 

150,000' 

185,1)(10 

470,00() 

0 

1,523:,000 

1,591,800 

·151,200 
487 

Mr. Grover Norquist Responses to Senator .Jeff Sessions Questions for the Record 

4/22/13 Hearing: "The Border Security, Economic Opportunity, and Immigration 

Modernization Act, S.744" 

Question One: JfS. 744 were to become law, do you believe that the Department of Homeland 

Security would deport those who enter the country il1egal1y or overstay their visas after the bill's 

enactment? 

S.744 improves America's immigration system to make it easier to identify and find those 

who overstay visas or cross illegally into the United States. The law would require anyone 

illegally entering the US to be deported. S.744 is a significant improvement in the 

government's ability to enforce the law when compared with present law. 

Question Two: If S. 744 were to become law, how many total new immigrants, including those 

currently here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the United 

States over a ten-year periodfo11owing the date of enactment and over a fifteen-year period 

following the date of enactment:' 

Comparing the results with S.744 to present law: 

There are an estimated 11 million people now living without papers in the United 

States. After passage of S. 744 this number would decline, as those who arrived recently 

would not be allowed to stay, those with criminal records would not be allowed to stay and 

those who did not maintain work and income above the poverty level would not be allowed 

to stay. 

S. 744 would reduce the future inflow of immigrants who are entering solely because they 

are the siblings of U.S. citizens or the married sons and daughters of U.S. citizens because 

those categories, which you refer as the "chain migration" categories, are being eliminated 

in the proposal. 

There would be more immigrants in the future who come because they have specialized 

skills and talents needed in the United States than under present law. 

Question Three: Dynamic macroeconomic models of the U.S. economy assume an average wage 

rate that is applied over the entire population of workers. With respect to the analysis that you 

relied on .for your testimony, please explain what wage rate was used, how much that wage rate 

changed over the course of the forecast period, and whether it was based on income earned only 

by legal workers or on income earned by both legal and illegal workers. 

I cited economic analysis recently released by Douglas Holtz-Eakin. He was a witness 

before the committee and one assumes you have asked him for this information, as he 

would be the best source. 
488 

Question Four: Although your testimony concludes that a large-scale amnesty will result in 

budget savings from lower deficits, your testimony is silent with regard to inflation and interest 

rates, which often make significant dif.forences in budget outcomes. Please provide the the 

interest rate and inflation (CP I of GDP deflator) results in the simulation that you relied upon in 

your testimony. 

I cited an economic study by Douglas Holtz-Eakin He was also a witness before the 

committee the day before I testified. I assume you have asked him this question, as he 

would be most authoritative person. 

Question Five: Experts on the current illegal population report that the average educational 

level adjustedfor age is below that of the legal population. However, worker productivity is 

closely associated with educational attainment and productivity is causally connected to growth 

in the economy. Please explain whether the economic model or analysis you relied upon in your 

testimony suggests that the illegal population will gain the training and education needed to 

support your claims regarding economic growth. 

The economic model I discussed before the committee was that of Douglas Holtz-Eakin. He 

testified before the committee on Friday and would be the best person to speak to his study 

and its assumptions/analyses. 

Question Six (A): In your written testimony you state: "The majority of those undocumented 

immigrants currently here are low-skilled. Some argue that we should not be importing or 

legalizing this type of talent. But, in reality, the US economy demands an enormous number of 

low-skilled workers . .. We need immigrant labor to fill demandfor low-skill jobs." Please 

explain how you anticipate that many of the low-skilled workers who would be legalized under S. 

744 would find employment in light of the current unemployment rate of7.6 percent and the fact 

that 90 million Americans are outside of the labor force. 

S.744 would reduce the total number of those now working in the United States without 

authorization. First, by deporting those who entered the United States more recently, 

second, by deporting who could not pass background checks and third by denying legal 

status to those who do no consistently work and earn above the poverty level. 

And by bringing those now in the United States living outside the protections of the law 

and into the legal workforce, even those who believe Malthus was a fine economist would 

recognize that this concern would be reduced. 

Question Six (B): Please list the sources that you used to reach your conclusion that the US. 

needs more labor to fill a low-skill job demand. 

The history of the past 10, 20,30 years, and the assumption that our economy will continue 

to grow at least at Obama/French levels, and one hopes soon at Reagan levels. And the fact 

that the children of the 1960s forgot to have as many children as their parents and 

grandparents. 
489 

Question Seven: (A and B). In your testimony you asserted that S. 7 44 "puts at least !3 years 

between legal status and access to public benefits for most undocumented immigrants, mitigating 

the negative fiscal impacts of our bloated entitlement programs." Your testimony went on to say 

that immigrants come at the beginning of their working lives, which means they will have years 

to pay taxes and contribute to the economy beji1re they receive any benefits. Eugene Steuerle and 

Caleb Quakenbush of the Urban Institute published a report in 2012titled "Social Security and 

Medicare Taxes and Benefits over a Lifetime." Their report provides data indicating that even 

among two-household couples where one earns a high wage ($71,400) and the other a lower 

wage ($44,600), the amount paid in total lifetime taxes is lower than the total lifetime 

benefits they receive as they get older. 

a. Please provide the data on which you rely that suggests illegal immigrants will pay 

enough taxes to mitigate any negative fiscal impacts of receiving entitlement benefits 

over the long-term. 

b. Please explain how you reconcile your conclusions with those of the report by 

Steuerle and Quakenbush 

The study by Steucrle and Quakenbush, and other studies, point out that Social Security 

and Medicare will, on average, pay out more in benefits than they seize from American 

citizens in "contributions." Is an indictment of the political class that created-and failed to 

reform--unsustainable entitlement programs. 

They make a good case for passing the Ryan Budget which would fix this problem. The 

House has acted on this and the Senate should follow their wise path. 

Yes, the present structure of entitlement programs must be reformed. This is not a good 

argument against having children, adopting children, or allowing immigrants to join our 

nation. Reasoning backwards from dumb government policy would argue for more 

abortions and more fatal car accidents. 

While we reform the entitlement programs, let us as a nation remember that in a free 

society people are a resource and that includes both babies and immigrants. 

Question Seven (C): Please provide the data on which you rely to calculate the average wages 

that illegal immigrants will earn once they are authorized to work in the U.S. 

In my testimony I pointed out that S. 744 would result in those now working in the United 

States without papers earning higher wages, paying more in taxes and being more 

productive. After the 1986 Reagan amnesty, wages of immigrants increased 15 percent just 

by gaining legal status. But commonsense informs us also. Imagine if your son or sister 

was told to go earn as much money as they could with a few limitations: no driver's license, 

no ability to fly on an airplane, and the real fear that any change in jobs might end in 

deportation. Imposing those restrictions would dramatically decrease the ability of any 

American to earn a living. Removing them would increase wages, opportunity, growth and 

wealth creation. 
490 

Question Seven (D): Under S. 744, when is the earliest that illegal immigrants who become 

legalized would be eligible for ftderal benefits? 

I share your concern about welfare fraud and having immigrants become reliant upon 

federal tax dollars for their ability to survive in American society, but the fact is ifthe 

federal government does not meet its border security goals, does not make the current 

voluntary e-verify system mandatory for all employers, and does not fully implement the 

entry exit system at our airports and seaports, none of these people will be able to get green 

cards, which in turn means none of them will qualify for federal public benefits. Moreover, 

there are also immigrant visa backlogs that have to be dealt with before any of these people 

can get a green card. If those aren't dealt with in 10 years, the current illegal population 

won't be able to apply for a green card. Thus, to answer your question as forthrightly as I 

possibly can, if our border security and enforcement issues are effectively dealt with and 

our immigrant visa backlogs are taken care of in 10 years, then the current undocumented 

population can apply for a green card, but even then they still have to spend a certain 

amount of years in LPR status before they can apply for these benefits. 

Question Seven (E): Under S. 744, when is the earliest that illegal immigrants who become 

legalized would be eligible for state and local benefits? 

S. 744 is a federal law. Every state and local government can decide how to spend the 

money it wrenches from the hands of its citizens. Some will spend it wisely and some will 

spend it poorly. 

Question Seven (F): Under S. 744, when is the earliest that a household headed by an illegal 

immigrant who becomes legalized would become eligible for ftderal benefits? 

See the answer to Question Seven (D). 
491 

Senate Committee on the Judiciary 

"The Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744'' 

April22nd, 2013 

Responses from United Farm Worker President Arturo Rodriguez to questions from Senator Jeff 

Sessions 

Submitted May 3, 2013 

1. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

Last year, the Department of Homeland Security deported about 41 0,000 individuals who 

entered the country illegally or overstayed their visas. We see nothing that would indicate that 

DHS will not continue to enforce the law in the future regardless of the passage of S. 744. 

It is our hope, however, that at least in the agriculture sector, passage ofS. 744 will greatly 

reduce the future flow of illegal entrants. In particular, the Blue card program is intended to 

create a more stable, domestic workforce of experienced farm workers. We can further insure 

against additional illegal migration by improving farm worker working conditions and increasing 

earnings for farm workers though longer periods of employment. 

Your goal of reducing illegal immigration may be better served by such reforms than by simply 

focusing on deportations. The prospect of employment is a magnet of unauthorized workers. To 

the extent that job opportunities are secured by legal workers in a more stable labor market, the 

pull factor for illegal immigration is reduced. 

2. If S. 744 were to become law, how many total new immigrants, including those 

currently here illegally who would be granted some form of legal status and those who 

would be admitted to the country under all categories of chain migration, would be added 

to the United States over a ten-year period following the date of enactment and over a 

fifteen-year period following the date of enactment? 

We can only respond with respect to the situation oftbe farm workers in the United States. We 

believe tbat approximately 1.2 million individuals work during the course of the year in U.S. 

agriculture without legal status. If S. 744 becomes law, we believe about 80% or about I million 

farm workers currently present in the U.S. would be eligible for the Blue Card program. 
492 

Mark Shurtleff Responses to Questions for the Record 

From Senator Jeff Sessions 

"The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744" 

I. If S. 744 were to become law, do you believe that the Department of Homeland Security 

would deport those who enter the country illegally or overstay their visas after the bill's 

enactment? 

Response: Yes. As Utah Attorney General, I worked closely with DHS agencies and am 

absolutely confident that those who enter the country illegally or overstay their visas after the 

bill's enactment will be deported. 

2. If S. 744 were to become law, how many total new immigrants, including those currently 

here illegally who would be granted some form of legal status and those who would be 

admitted to the country under all categories of chain migration, would be added to the 

United States over a ten-year period following the date of enactment and over a fifteen 

year period following the date of enactment? 

Response: I do not have sufficient information to respond to this question. 
493 

Senator Jeff Sessions 

Questions for the Record 

The Honorable Bill Vidal, President & CEO, 

Hispanic Chamber of Commerce of Metro Denver 

Thank you for the opportunity to follow up on my testimony in front of the Senate Judiciary 

Committee on S.744 

1. If S. 744 were to become law, do you believe that the Department of Homeland 

Security would deport those who enter the country illegally or overstay their visas 

after the bill's enactment? 

I believe the Deparunent of Homeland Security would follow the new measures 

established by S. 7 44 as it is required to do. 

2. If S. 744 were to become law, how many total new immigrants, including those 

currently here illegally who would be granted some form of legal status and those 

who would be admitted to the country under all categories of chain migration, would 

be added to the United States over a ten-year period following the date of enactment 

and over a fifteen-year period following the date of enactment? 

I was asked to provide testimony as a business representative from Colorado, a 

former mayor of Denver and as an immigrant. My testimony was based on my 

experiences and knowledge of Colorado and the positive effects of allowing 

undocumented people to come out shadows and participate in our communities. 

Although I believe the benefits of S. 7 44 will be common around the nation, I do 

not feel comfortable providing an answer that is of such national scope as tlus 

question requires. 
494 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

June 27,2011 

Senator Patrick Leahy 

437 Russell Senate Building 

United States Senate 

Washington, O,C. 20510 

Dear Chairman Leahy: 

I arn writing to express Microsoft Corporation's support for the Uniting American Families Act As an 

innovation leader, our most critical asset is the brainpower of the people in our workforce. Our human 

talent is the key to Microsoft's ability to generate new ideas and new products, and to create new U,S. 

jobs, and we place top emphasis on attracting and keeping the best and brightest. 

Today's immigration laws create a particularly serious barrier to this goal by failing to provide 

immigration benefits to the same~sex permanent partners of U.S, citizens and lawful permanent 

residents, This barrier imposes tremendous hardships on a significant number of talented employees 

and recruits who, along with their foreign national partner or spouse, are forced to choose between: 

abandoning successful careers and established lives in the US and moving to a country where they may 

remain together; living indefinitely in separate countries; or, separating permanently, This barrier also 

imposes an economic burden on Microsoft and other U.S. employers by impacting the productivity of 

key employees and creating substantial costs as we transfer employees to subsidiaries in other 

countries. where possible, to mitigate this hardship. More importantly, we are faced with the reality of 

losing some of our best employees as they deal with this challenge. 

The provisions of the Uniting American Families Act would overcome this outdated barrier. Such a law 

would also bring U.S. immigration policy law into line with the growing number of countries-including 

economic competitors such as Sweden, Germany, the Netherlands, Canada, the United Kingdom, 

France, and Australia-that already provide immigration benefits to the same-sex permanent partners 

of citizens and permanents residents, recognizing that it is both fair and economically smart to do so, 

Passage of the Uniting American Families Act would permit key employees to keep their families 

together and remain as contrihvtorr:; to the lLSo econnmy ar!d !t Vlot!ld ~!!cli,,V !\llicros.0ft and 

keep the best possible talent within our workforce, 

We commend you for your continued leadership on this very important issue. 

Karen F. Jones 

Vice President, Deputy General Counsel 

HR Legal Group 
495 

TESTIMONY BEFORE THE UNITED STATES SENATE COMMITIEE ON THE JUDICIARY 

FOR THE HEARING ENTITLED "THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND 

IMMIGRATION MODERNIZATION ACT, S.744" 

April 22, 2013 

BY THE 

ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM AND UNDERSIGNED 

ORGANIZATIONS 

The Asian & Pacific Islander American Health Forum (APIAHF) and sixty-eight undersigned 

organizations committed to improving the health and well-being of Asian Americans, Native Hawaiians, 

and Pacific Islanders (AAs and NHPis) and advancing health equity submit this written testimony for the 

record for the April22, 2013 hearing before the Senate Committee on the Judiciary entitled "The 

Border Security, Economic Opportunity, and Immigration Modernization Act, S.744." 

The "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013" (S. 744) is a 

major step forward for the nation, offering a sensible, comprehensive, bipartisan overhaul to our 

immigration system. While the bill makes substantial inroads, the compromised positions affecting 

access to care threaten the health, safety and economic future of the entire nation for short-term 

costsavings. Most importantly, cementing these barriers to affordable health care is an affront to our 

American values of responsibility, fairness and unity and is out of step with the desires of the majority 

of Americans who have made it clear that they are ready for a sensible and sustainable fix to our 

immigration system. 

The guiding principle behind any improvements to our immigration laws must be unity for immigrants, 

unity for families and unity for the entire nation. The following testimony addresses one oft he 
496 

cornerstones of these values: access to affordable health care. It is critical that this committee not view 

health care access in a vacuum. Right now, federal agencies and states are rapidly implementing the 

Affordable Care Act and other initiatives to combat uninsurance and mitigate the massive toll that 

uninsurance takes on the nation. 

While these initiatives have the potential to drastically reduce uninsurance, S.744 and proposals being 

debated in the House will undermine these efforts and threaten the nation's health and economy in 

the long run. 

I. Americans and Aspiring Americans Alike Need Affordable Health Insurance 

and Care Options that Allow them to Take Responsibility for their Health, 

and a Majority of Americans Agree 

Immigration reform proponents often argue that immigrants must be responsible for their actions. The 

primary reason most immigrants come to the U.S. is to better their lives and that of their children 

through hard work and sacrifice. Those two principles are one of the many reasons the U.S. is seen as a 

nation built by immigrants. 

Recent polling conducted by the Kaiser Family Foundation found that most Americans support offering 

the same opportunities for accessing affordable health care and insurance to aspiring Americans1 The 

poll found that six out often Americans surveyed believed that immigrants on the path to legalization 

should be able to fully participate in health reform and qualify for Medicaid coverage. Overwhelming 

majorities of Blacks and Latinos surveyed agreed with providing equal access to health care. 

While the Kaiser survey did not provide disaggregated data on the views of Asian Americans surveyed, 

the 2012 National Asian American Survey found that one in six Asian American voters placed health 

care as a top issue and Asian Americans overwhelmingly supported the Affordable Care Act.' These 

numbers are telling as Asian Americans and Latinos supported progressive policies during the 2012 

1 "Kaiser Health Tracking Poll: Public Opinion on Health Care Issues," Kaiser Family Foundation, February 2013, available at 

IJnQJLwww. kff.org/ka iserpolls/ u pia a d/8.41!1:E,pgf. 

2 "The Policy Priorities and Issue Preferences of Asian Americans and Pacific Islanders," National Asian American Survey, 

September 2012, available at !:!!!.Q_J/_www.naasurvey.com/. 
497 

election by substantial margins. As Asian Americans continue to be the fastest growing racial group in 

the nation, Asian American voters will continue to demand policies that serve their communities. 

II. Federal laws Already Restrict Access to Care for Immigrants. 5.744 Would 

Cement these Barriers and Contribute to Costly and Unnecessary Health 

Disparities 

The complex interplay between existing federal health programs and immigration laws already restricts 

access for many immigrants and families, including the over 4 million citizen children living with 

undocumented parents. 5.744 offers an estimated 11 million undocumented immigrants the chance at 

legal status and earned citizenship, but unfortunately cements existing federal laws that could have 

disastrous consequences. 

The ACA already maintains existing immigration-based restrictions and goes even further and 

affirmatively bars undocumented immigrants from purchasing private health insurance coverage in the 

newly created insurance marketplaces, even at full price and with their own funds. 5.744 goes further 

than current federal law and creates a new exclusion for persons who are "lawfully present" or those 

who are Registered Provisional immigrant (RPI) status and excludes them largely from the benefits of 

health reform. RPis, including DREAMers, are ineligible for the affordability programs including 

advance premium tax credits and subsidies that would make health insurance more affordable, despite 

the fact that these individuals would be legal and paying taxes. At the same time, they are subjected to 

the individual mandate. 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, also known as 

the "welfare reform" law), created arbitrary and inhumane time limits and other restrictions for 

lawfully present immigrants to become eligible for federal means-tested public programs. As a result, 

legal aspiring citizens are barred from critical safety net programs for a minimum offive years. 5.744 

reaffirms this exclusion. The result is that, under the pathway to citizenship outlined in 5.744, a newly 

legalized immigrant going through the ten year process to adjust from RPI to legal permanent resident 

would have to wait an additional five years after adjusting to LPR status to become eligible for 

safetynet health programs like Medicaid. This-what effectively amounts to a bar of 15 years or 

3 
498 

more- occurs during a time when the legalized individual is residing in the country and paying into the 

system. 

PRWORA also bars citizens from the freely associated states of Micronesia, Republic of the Marshall 

Islands and Republic of Palau from the Medicaid program. These individuals, known as COFA (Compact 

of Free Association) migrants, are persons who are free to enter and work in the U.S. without 

restriction under long-standing agreements between the U.S. and pacific jurisdictions. COFA migrants 

suffer from a number of serious health disparities caused by America's militarization of the pacific 

islands, nuclear test bombing and lack of economic supports, including high rates of cervical cancer and 

other chronic diseases. The 19961aw revoked Medicaid coverage for COFA migrants, and, coupled with 

existing disparities and failure on the part ofthe U.S. to provide required supports, has created serious 

economic consequences for states like Hawaii and the territory of Guam, who have shouldered the 

burden of providing health care to this population. 

These federal policies undermine America's values, further health disparities and put the entire 

nation's health at risk. These disparities will only worsen in 2014, when the ACA is fully implemented 

and the gap between the health of immigrants and those who qualify for new coverage options 

widens. As a result, immigration status will become one of the leading social determinants of healthaffecting everything from whether or not a person can buy health insurance, whether a sick child can 

see the doctor, and whether a low-income worker can afford the treatment they need. 

Ill. America Cannot Afford the Long Term Economic and Human Costs for a Short 

Term Compromise that Erects Barriers to Affordable Care 

The U.S. cannot afford to continue the unsustainable health care path the nation is currently on. This 

was one oft he reasons lawmakers and President Obama prioritized the Affordable Care Act (ACA). 

While the ACA provides new, affordable insurance options for many of the currently SO million 

uninsured individuals in the U.S., America will continue to have a population of uninsured workers, 

children and families even after full implementation oft he law. 

4 
499 

Uninsurance leads to poor health outcomes, but the opposite is true when an individual is insured. 

Individuals with health coverage, including Medicaid, report better physical and mental health. 3 They 

are more likely to have routine access to medical care, less likely to rely on expensive emergency room 

visits and have better access to essential preventive services, reducing the incidence of chronic 

diseases that take a major toll on the U.S. health care system. In contrast, research shows that the 

uninsured have significantly worse health outcomes across a number of chronic diseases including 

cancer and diabetes. 4 

The nonpartisan Institute of Medicine (!OM) has studied the issue extensively and their report, 

America's Uninsured Crisis: Consequences for Health and Health Core, outlines the resulting lack of 

access to routine preventive care. In addition to the physical toll, there are major economic costs. 

Shorter lifespans and worse health outcomes result in a loss of $65 130 billion annually5 and translate 

into lost economic productivity and threaten economic security as families live in fear of what might 

happen if they get sick. 

The consequences are not limited to the individual, but impact communities and state economics and 

put America's security at risk. Expanding access to affordable health insurance would help to relieve 

overburdened safety net hospitals and clinics and reduce uncompensated care costs, which often falls 

to states and the federal government to pick up the tab. In total, eighty-five percent ofthe costs for 

uncompensated care fall on the government. 6 

While the initial cost of extending coverage to the newly legalized (RP!s) may be significant, the amount 

is an investment that is needed and cannot be avoided. Health costs will become due now or later. The 

need for any uninsured individual-regardless of immigration status-for basic health care will not 

disappear regardless of the number of complex restrictions put forth. Health care is out of reach for 

3 "What is the link between having health insurance and enjoying better health and finance?" Robert Wood Johnson 

Foundation, January 2012, available at http://www.rwif.org/content/dam/farm/reports/issue briefs/2012/rwif72145. 

4 "American's Uninsured Crisis: Consequences for Health and Health Care;' Institute of Medicine, February 2009, available 

at http://www.iom.edu/"'/media/Files/Report%20Files/2009/Americas-Uninsured-Crisis-Consequences-for-HealthandHea!th-Care/Americas%20Uninsured%20Crisis%202009%20Report%20Brief.pdf. 

5 "Hidden Costs, Value lost: Uninsurance in America," National Academies Press, 2003, available at 

http://w_ww.nap.edu/openbook.pho?record ld=10719&page=1. 

6 "The Cost of Care for the Uninsured: What do We Spend, Who Pays and What Would Full Coverage Add to Medical 

Spending?" Kaiser Family Foundation, May 2004, available at http://www.kff.Q.Cg/uninsured/up!oadlthe-cost-of-care-fortheuninsured-what-do-we-spend-who-pays-and-what-would-full-coverage-add-to-medlca!-spending.pdf. 

5 
500 

most of the uninsured. The average hospital stay in the U.S. costs over $15,000 and the average cost 

for a doctor's visit is $89-expenses that can add up quickly. 7 

Racial and ethnic minorities and other underserved populations are particularly impacted by access and 

cost barriers, resulting in expensive health disparities. Asian Americans and Pacific Islanders, for 

example, are overwhelmingly immigrant and account for 40% of recent immigrants to the United 

States. As of 2011, there are over 17.6 million Asian Americans living in the United States, and over 1.2 

million Native Hawaiians and Pacific Islanders. These communities, like many other racial and ethnic 

minorities, are disproportionately uninsured for a number of reasons, including cost, challenges 

navigating enrollment and eligibility processes, and importantly for this Committee-the intersection 

of immigration-based eligibility restrictions on access to health insurance and health programs. 

The choice is clear; America cannot afford the human or economic toll that access barriers have. 

Putting up roadblocks to good health risks individual, family and community health and the safety and 

security of the entire nation. 

IV. Offering Immigrants the Same Opportunities for Affordable Health Care and 

Coverage is Fiscally Responsible and Promotes Full Integration 

Providing equal access to affordable, quality care and insurance for immigrants is sound fiscal policy. 

Immigrants are often younger, healthier and have lower health care expenses than native-born 

Americans.• A recent report by leading health researcher Leighton Ku and Brian Bruen found that, 

analyzing the Census Bureau's March 2012 Current Population Survey, immigrants have lower 

utilization rates for public benefits and the value of those benefits received is less than that for 

7 uSurvey Shows that Americans Pay a lot More for Health care," National Journal, March 25, 2012 1 available at 

http:l/www.natio_naljournal.com/healthcare/survey-shows-americans.:.Q..?~-_I_Qt-more-for-hea!th-care-20120304. 

8 "Health Insurance Coverage and Medical Expenditures of Immigrants and Native-Born Citizens in the United States/' Am J 

Public Health, Leighton Ku, 2009 July; 99(7):1322-1328, available at 

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2696660/. 

6 
501 

nativeborn individuals? In addition, the report found that analysis of the 2010 Medical Expenditure 

Panel 

Survey (MEPS), costs for immigrants under Medicaid were substantially lower compared to native-born 

adults and for immigrant children, costs were less than half that of native-born children. Prior analysis 

has conclusively shown that immigrants as a whole underutilize health care compared to the U.S. born 

and, when they participate in federal and state funded health programs, use fewer resources. 10 

America needs commonsense immigration policies that align with our values, protect all families and 

communities, and put the nation on a path to a better, healthier future. Our laws should make health 

care more affordable and accessible for both Americans and aspiring Americans alike. Immigrants 

already feel the pain when archaic eligibility laws, language barriers and access challenges converge. 

We cannot afford to create new barriers to good health for anyone. 

The undersigned organizations recommend the following four reforms to ensure that immigration 

policies support the full integration of immigrants and encourage all Americans to take responsibility 

for their health. 

a. Young Adults Granted Deferred Action Must be Allowed Access to Health 

Reform 

Including DACA-eligible youth and young adults in health reform is sound policy and fiscally 

responsible. DACA-eligible youth, commonly known as DREAMers, are a sizable population, with recent 

estimates suggesting that as many as 1.76 million young adults could be eligible for administrative 

relief. 11 An estimated 9% of these youth come from Asian countries, comprising over 170,000 

individuals. These young adults are already part of America's fabric, having lived in the country for 

years, and share the same hopes and aspirations as all young Americans. 

9 "The Use of Public Assistance Benefits by Citizens and Non~Citizen Immigrants in the United States," CATO Institute, 

leighton Ku and Brian Bruen, February 2013, available at 

http://www.cato.org/sites/cato.org/fi!es/pubs/pdf/worklngpaper13 l.pdf. 

10 "Health Insurance Coverage and Medical Expenditures of Immigrants and Native~Born Citizens in the United States," Am J 

Public Health, Leighton Ku, 2009 July; 99(7):1322-1328, available at 

http ://W'f:IW. ncbi. n lm. nih .gov /pmc/ a rticl es/P MC2696660/. 

11 "Relief from Deportation: Demographic Profile of the DREAMers Eligible Under the Deferred Action Polley/' Migration 

Policy Institute, August 2012, available at b.!!Q;/.h.vww.migrationpgli_cy.org/oubs/fs24 deferredaction.pdf. 

7 
502 

There is no principled reason to treat young people who receive deferred action through DACA 

differently from any other person who has received deferred action. In fact, until HHS decided to carve 

out DACA beneficiaries, they were covered by the ACA like all other persons who have been granted 

deferred action. Restoring eligibility for DACA-eligible young adults in health reform would allow these 

individuals to purchase coverage in the new health insurance marketplaces, pay their fair share of 

health care costs and see a doctor on a regular basis, instead of remaining uninsured. Including this 

population of overall younger and healthier individuals in the marketplace creates a more sustainable 

and robust risk pool and ensures that these young people are able to continue to work, pay taxes and 

build the nation's economy. 

Shutting them out could increase costs for everyone. Excluding a large population of relatively healthy 

young adults from the insurance marketplaces increases the risk of adverse selection and ultimately 

drives up premiums for everyone. Even more worrisome is the fact that if premiums rise, citizens and 

lawfully present individuals alike may find it too costly to purchase coverage through the marketplace 

and instead choose to remain uninsured, further reducing the marketplace population and in turn 

driving up costs. 

Finally, including DACA-eligible youth and young adults in health reform supports administrative 

efficiency. As states develop processes to facilitate seamless eligibility determinations and enrollment 

for individuals in private insurance plans, Medicaid and CHIP, they are faced with yet another 

complicated process. Treating DACA-eligible youth like all other immigrants granted deferred status 

would ease this process. 

b. All Immigrants Must be Allowed the Same Opportunity to Take 

Responsibility for their Health by Being Able to Purchase Coverage in the 

Insurance Marketplaces 

Federal law currently excludes undocumented immigrants from purchasing private health insurance in 

the newly created insurance marketplaces. This policy undermines our country's efforts to reduce the 

number of uninsured and prevents a large population of mostly healthy, working adults from being 

included in state insurance risk pools. It is also the first known statutory prohibition on a private 

market transaction based on an individual's immigration status. It's good fiscal policy to offer health 

8 
503 

coverage to the largest number of people. Allowing everyone to pay in increases competition and 

spreads risks and costs across a larger population. As these immigrants continue to contribute to the 

U.S. economy, support their families and work toward a path of obtaining legal status, they must be 

able to take responsibility for their health by having the same opportunity to purchase affordable 

insurance. 

c. End Arbitrary and Inhumane Time Limits that Put Legal Aspiring Citizens at 

Risk 

Congress should remove the arbitrary time limits imposed on lawfully present immigrants whose taxes 

help support the social safety net programs they are barred from participating in. The arbitrary time 

limits currently in place create substantial barriers for low-income immigrants from being able to 

benefit from the same support systems critical to preventing needy individuals and families from 

slipping into poverty. As a result, eligible immigrants have lower rates of enrollment in federally 

supported programs than their citizen counterparts. This disparity is also true among citizen children 

living in immigrant households, putting these low-income children at risk of food insecurity and poor 

health outcomes. 

States already recognize the importance of keeping women, children and families healthy. Four states 

and the District of Columbia use their own funds to provide health care for children regardless of their 

immigration status, and twenty states use the option under the Children's Health Insurance Program 

Reauthorization Act of 2009 to provide health coverage for lawfully present children subject to the 

five-year bar. Fourteen states and the District of Columbia provide CHIP or other medical coverage for 

pregnant immigrant women, regardless of immigration status, and an additional thirteen states 

provide Medicaid coverage for lawfully present pregnant women through the CHIPRA option. 

We urge Congress to act again to permanently eliminate this arbitrary restriction for all lawfully 

present immigrants. 

d. America Must Uphold its Commitment to the Freely Associated States and 

Provide Parity in Health Care 

9 
504 

Migrants from the Compact territories should be able to access the federal health programs they pay 

into. COFA migrants are part of the fabric of America and share a complex relationship with the U.S. 

government, one in which the U.S. government has certain responsibilities. They contribute to the 

economy and pay taxes and therefore should be eligible for state funded programs. Lifting the current 

bar on eligibility will provide needed fiscal relief for states like Hawaii and the territory of Guam, which, 

as a result of the federal government's failure to provide economic supports for this population, have 

shouldered a disproportionate burden ofthis population's health care expenses. 

V. Conclusion 

Every individual, regardless of immigration status, should have a fair opportunity to attain optimal 

health and well-being. Any fix to the nation's immigration system must include access to health care. 

The alternative risks putting recent reforms and advances at risk, potentially shifts costs to states and 

safety net providers, and puts the entire nation's physical health and economic well-being at risk. 

For more information or questions, please contact Priscilla Huang, APIAHF Policy Director at 

phuang@apiahf.org or (202) 466-3550. 

Signing organizations: 

APAIT Health Center, Asian & Pacific Islander National Cancer Survivors Network, Asian & Pacific 

Islander Wellness Center, Asian American Health Coalition of Greater Houston, Asian Americans for 

Change, Asian and Pacific Islander Obesity Prevention Alliance, Asian Health Coalition, Asian Health 

Services, Asian Pacific American Labor Alliance, AFL-CIO, Asian Pacific American Network of Oregon, 

Asian Pacific Community in Action, Asian Pacific Islander American Public Advocacy Association, Asian 

Pacific Partners for Empowerment, Advocacy and Leadership, Asian Services In Action, Inc., Asian 

Women for Health, Inc., Association of Asian Pacific Community Health Organizations, BPSOS Inc., 

BPSOS California, Breast Cancer Action, California Healthy Nail Salon Collaborative, Center for Pan 

Asian Community Services, Inc., CHOW Project, Coalition for Asian American Children & Families, 

Empowering Pacific Islander Communities, Field Research Corporation, Health Through Action Arizona, 

Hep Free Hawaii, Hmong National Development, Inc., Island Liaison, Japanese American Citizens 

League, Japanese American Citizens League, Arizona, Kalusugan Coalition, Inc., Lao Assistance Center of 

MN, Laotian American National Alliance, Light and Salt Association, Malama Pono Health Services, 

Micronesian Islander Community, Midwest Asian Health Association, MQVN Community Development 

Corporation, National Asian Pacific American Families Against Substance Abuse, National Asian Pacific 

American Women's Forum, National Asian Pacific American Women's Forum, Arizona Chapter, 

National Council of Asian Pacific Islander Physicians, National Pacific Islander Educator Network, 

National Tongan American Society, OCA, One Global Family Foundation, Orange County Asian and, 

Pacific Islander Community Alliance, Inc., Pacific American Foundation 

10 
505 

Pacific Islander Community Partnership, PELE, The Sorority of Oceania, Philipino Senior Resource 

Center, Project CHARGE, Restaurant Opportunities Centers United, Saath USA, Samoan Community 

Development Center, Samoan National Nurses Association, SEAMAAC, Inc., Socio-Economic 

Development Center for Southeast Asians, Southeast Asia Resource Action Center (SEARAC), Tan usia 

Ma'a Tonga, Taulama for Tongans, The HYPE Movement, Tongan American Youth Foundation, 

Vietnamese American Young leaders Association of New Orleans, Vietnamese Health Project at Mercy 

Medical Center, West Michigan Asian American Association, Inc., and Worksafe, Inc. 

11 
506 

April 24, 2013 

TO: The Honorable Patrick Leahy and Members of the US Senate Judiciary Committee 

RE: Testimony of the Community College Consortium for Immigrant Education to the US Senate Judiciary 

Committee Hearing on Comprehensive Immigration Reform Legislation 

FROM: Teresita B. Wisell, Executive Director, CCCIE, and Associate Dean, The Gateway Center, Westchester 

Community College, Valhalla, New York 

Thank you for the opportunity to submit written testimony to the Senate Judiciary Committee in support of 

Comprehensive Immigration Reform. 

The Community College Consortium for Immigrant Education is a national network of over 30 community colleges 

and other leading professional organizations committed to strengthening and expanding programs and services for 

immigrant students and leveraging the special role community colleges play in the immigrant integration and 

education ecosystem. The members of CCCIE believe that the effective education and training of immigrants is a 

key component-indeed, a necessity-for successful immigrant integration. 

The programs and services CCCIE is interested in advancing span the skills continuum and mirror the varied needs 

that immigrant students have. These include English as a Second Language (ESL) instruction at all skill levels, 

college readiness, college completion, career readiness, and employment and advancement. With immigration 

reform and labor force needs in the policy forefront, CCCIE and its members are poised to assist in reform 

implementation and immigrant integration and education efforts more broadly. 

CCCIE, which is housed at Westchester Community College in Valhalla, NY, sees both challenges and opportunities 

associated with the successful integration of immigrants into American society. 

THE CHALLENGES 

Over 25 million foreign-born non-citizens age 18 and over have limited English proficiency. 

While their educational backgrounds differ, many could be served in various ways by community colleges. 

Each year about 65,000 undocumented students graduate from U.S. high schools, but only about 5-10 

percent go on to college due to legal, financial, and other barriers. 

As the US population ages and millions of baby boomers retire, immigrants and their U.S.-born children will 

account for all workforce growth between now and 2050. 

Many of the 11.2 million unauthorized immigrants in the U.S. who could be legalized have limited English 

proficiency and skills that need to be adapted to the US market. 

An estimated 1.8 million foreign-educated, skilled immigrants residing in the U.S. are unemployed or 

underemployed. Many are scientists, engineers, or doctors who have been unable to re-enter their careers 

in the U.S1 
507 

THE OPPORTUNITIES 

Resources and policies that support workforce and education efforts for immigrants support economic growth, 

educational attainment, college completion, and career enhancement for this fast growing segment of the US 

population. The nation's 1200 community colleges play an integral role in the linguistic, civic and economic 

integration of our nation's immigrants. Today, 1 in 4 community college students is an immigrant or child of an 

immigrant. On some campuses, the percentage of immigrants or children of immigrants is much higher. 

Community colleges provide high quality: 

Certificate and 2-year degrees 

Career training and employer recognized credentials 

English as a Second Language (ESL) instruction 

Civics education and citizenship preparation 

EXAMPLES OF CCCIE MEMBERS' SUCCESS AND INNOVATION 

Community colleges assist thousands of newly arrived refugees each year with intensive job related English 

language instruction, vocational training and employability skills. Some exemplary programs: Miami Dade 

College's REVEST program (Refugee/Entrant Vocational Educational Services Training), FL, Pima Community 

College's Refugee Education Project, AZ, Northern Virginia Community College's Adult Career Pathways 

program, VA; and the Montgomery County Refugee Training Program at Montgomery College, MD. 

Since 2005, Wilbur Wright College, IL and its partners have operated Carreras en Salud (Careers in Health). This 

program has helped low skilled, limited English proficient immigrants become bilingual and bicultural Certified 

Nurse Assistants and Licensed Practical Nurses, filling a much-needed health care services gap in Chicago. 

Alamo Community College District, TX, Bunker Hill Community College, MA; City College of San Francisco, CA; 

and LaGuardia Community College, NY are among several community colleges across the country that partner 

with the Welcome Back Initiative, a national program that helps internationally trained health care professionals 

rebuild their health care careers in the US. 

Since last summer's implementation of Deferred Action for Childhood Arrivals (DACA), community colleges such as 

Palm Beach State College, fl; Bluegrass Community and Technical College, KY; Johnson County Community 

College, KS; Rio Hondo College, CA; South Texas College, TX; and Westchester Community College, NY have 

played a pivotal role in ensuring access to higher education for these eligible youth and have served as resource 

and referral hubs, partnering with community organizations and agencies. 

The Washington State Board for Community and Technical Colleges, WA has replicated the highly successful 

I-BEST model throughout all34 community colleges in Washington state. This model combines basic skills, ESL 

instruction, and job skills needed for specific careers and has greatly accelerated college completion and career 

readiness of community college students-immigrants and non-immigrants alike. 

In San Mateo and Santa Clara counties (CA) ALLIES, a partnership of community colleges, adult education 

providers, community organizations, labor, business and public agencies works to increase the skills and credential 

attainment of the region's limited English proficient jobseekers and to meet the skill needs of employers. 

www.ccde.org 
508 

CCCIE RECOMMENDATIONS FOR IMMIGRATION REFORM 

Provide a clear, earned pathway to citizenship for undocumented immigrant youth and their families. 

Create a National Office on Immigrant Integration Policy to ensure coordination of immigrant integration 

efforts across federal agencies and at state and local levels. CCCIE supports the provisions in the proposed 

legislation to develop the Office of Citizenship and New Americans within U.S. Citizenship and Immigration 

Services to coordinate immigrant integration initiatives, create a Task Force on New Americans to advise 

on implementing integration policies, and establish the United States Citizenship Foundation to help fund 

programs at state and local levels. 

Ensure that community colleges and other adult education providers have adequate funding to deliver 

programs that integrate ESL, vocational training and career pathways. 

Create a federal clearinghouse for information on professional re-credentialing for skilled immigrants for 

use by community colleges and community based service providers 

Ensure availability of GED resources to facilitate immigrant students' educational advancement and entry 

into college level work. 

Ensure availability of federal financial aid for undocumented or newly DACA authorized youth to increase 

their access to higher education. 

Expand use of Pell Grants to include support for noncredit ESL instruction and career-related certificates. 

Support on line and self-access learning for nontraditional and adult immigrants so they can achieve full 

linguistic, economic and civic integration. 

Provide financial incentives for employers who offer onsite education for workers via vocational ESL and 

other evidence-based integrated skills/language training models with proven outcomes. 

For more information, contact: 

Teresita Wisell, CCCIE Executive Director and Associate Dean, The Gateway Center, 

Westchester Community College; Tere.Wisell@sunywcc.edu; 914-606-7866 

Jill Casner-Lotta, CCCIE Director, Jiii.Casnerlotto@cccie.org; 914-606-5644 

www .cccie.org 
509 

~ 

~C~ornmuni::y Coilsye 

Ccnsortium fer !rr;rnigrant Ecuca:ion 

CCCIE Blue Ribbon Panel Members: 

Alamo Community College District, TX (includes 5 community colleges) 

ALLIES (Alliance for Language Learners' Integration, Education and Success), CA (includes 10 community colleges 

and over 40 adult education providers, employers, labor unions, public agencies, community groups, and economic 

development agencies) 

American Association of Community Colleges, D.C 

Bluegrass Community and Technical College, KY 

Bunker Hill Community College, MA 

City College of San Francisco, CA 

Johnson County Community College, KS 

LaGuardia Community College, NY 

Literacywork International, NM 

Miami Dade College, FL 

Migration Policy Institute, D.C. 

Montgomery College, MD 

National Community College Hispanic Council, CA 

Northern Virginia Community College, VA 

Palm Beach State College, FL 

Pima Community College, AZ 

Queens borough Community College, NY 

Rio Hondo College, CA 

South Texas College, TX 

Washington State Board for Community and Technical Colleges, WA (includes 34 community colleges) 

Westchester Community College, NY 

Wilbur Wright College, IL 

World Education Services, NY 

www.cccie.org 
510 

April24, 2013 

The Honorable Patrick J. Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, D.C. 20510 

Dear Chairman Leahy and Ranking Member Grassley: 

The Honorable Chuck Grassley 

Ranking Member 

Committee on the Judiciary 

United States Senate 

Washington, D.C. 20510 

The nation's govemors and chief state school officers appreciate your work to create a Science, Technology, 

Engineering, and Math (STEM) education and training fund in the Border Security, Economic Opportunity, 

and Immigration Modemization Act (S: 744). Currently inS. 744, however, federal STEM funding would 

support the federal govemment for federally detennined and prescribed priorities. States, not the federal 

government, fund and manage most of public education in the country. 

As the Senate moves forward to design a sustainable pipeline to educate U.S. workers for careers in STEM 

fields, govemors and chief state school officers encourage you to consider the Promoting American 

Ingenuity Account created by S. 169, the Immigration Innovation Act of 2013, with minor amendments. 

Governors and chief state school officers supportS. !69's framework to expand access to STEM education, 

collaboration, and innovation as detailed in the attached legislative proposal. Governors and chief state 

school officers believe incorporating a moditied S. 169 STEM framework into S. 744 is necessary to 

encourage systemic STEM education improvements, accelerate best practices, and spur ongoing state-led 

innovation by engaging state leaders, businesses, and other state agencies engaged in this critical venture. 

The NGA/Chief State School Officers Proposal would ensure that: 

State leaders are empowered to work across and among state agencies to meet student and employer 

needs: 

States, not the federal government, would retain the authority to design innovative programs that 

strengthen STEM education: and 

All states and territories would be eligible to receive federal supp011 to expand STEM education. 

Governors and chief state school officers are leading the way in STEM education by increasing proficiency 

and growing the number of students who pursue STEM careers. Federal support, through increased visa 

fees, to expand state-led STEM reform would fuel economic growth and innovation in states. Inclusion of 

a robust and flexible STEM education funding stream to states would allow governors and chief state school 

officers to design STEM policies in a manner best suited to their state's educational and economic needs. 

Page 2 

Thank you for your consideration. If you have any questions regarding this matter, please contact Joan 

Wodiska at jwodiska@nga.org or (202) 624-5361 or Peter Zamora at PeterZ@CCSSO.org or (202) 

3367003. 

Sincerely, 
511 

Governor Dannel P. Malloy 

Chair 

Education and Workforce Committee 

Commissioner Mitchell Chester 

President 

Council of Chief State School Officers 

CC: Members of the Judiciary Committee 

Senator Bennet 

Senator Flake 

Senator McCain 

Senator Menendez 

Senator Rubio 

Vice Chair 

Education and Workforce Committee 
512 

April 19. 2013 

Dear Senate Judiciary Committee: 

7 HAPPY DAY BL\ill., SUITE 2:i0 

C\LDWELL.IDAHO 83607 

OFFICE: 208-454-1652 

FAX: 208-459-(HAS 

Our organization. Community Council ofldaho. Inc., serves over 16.000 individuals on an annual 

basis across Idaho. A large percentage of those we serve are farm workers. We submit this 

statement for inclusion in the record of the April 19,2013 Senate Judiciary Committee hearing 

on ··comprehensive Immigration Reform Legislation."' V..1e believe that immigration reform is 

essential to helping fann workers and their families have the opportunity to lead productive and 

healthy lives. We arc theref(lre grateful to you and your colleagues, who have spent considerable 

effort to recognize the interests and knowledge of stakeholders in agriculture and to develop 

legislation to reform our broken immigration system. 

\Ve're very pleased that farrnworker and grower representatives have come to an agreement on 

immigration refom1 for agriculture. This compromise should greatly increase support for 

comprehensive immigration rcfonn and get us closer to dignity for fam1 workers. As the Border 

Security. Economic Oppo11unity, and Immigration Modernization Act of20I3 (CIR bill) moves 

through the legislative process, we write to emphasize the importance of labor protections fOr 

immigrant fam1 \vorkers and urge you to ensure that existing worker protections remain in the 

bill or are strengthened. 

The Current Landscape: Greater Protections Needed for Farm ,,·orkers 

The lack of authorized immigration status of so many farm workers contributes to their poor 

wages and \Vorking conditions. Farmworker wages are among the lowest in the country. Many 

earn at or just above the minimum wage. Poverty among farm workers is more than double that 

of all wage and salary employees. Few fam1 workers receive any fringe benefits, such as paid 

sick leave or paid vacation. Decrepit. overcrowded housing is aU too common. Health insurance 

is rarely provided by employers and few farm workers can afford to purchase it on their own. 

Yet. agriculture ranks among the most hazardous occupations. Federal laws on overtime pay and 

collective bargaining exclude fam1 workers. as do most federal occupational safety standards and 

many states' workers' compensation systems. 

Such marginalized workers fear joining labor unions, seeking improved job terms, or challenging 

illegal employment practices. Agricultural workers experience rampant violations of employment 

laws, including minimum wage requirements. Frequently, fann operators hire workers through 

fann labor contractors,· whom they claim are the sole "employers" fof purposes of escaping 

Preserving Families- Renewing Lives! 
513 

HAPPY DAY BLVD., 250 

CALDWELL, !DJ\HO 83607 

OFFICE: 208-454-1652 

FAX: 208-·t59-0•14tl 

immigration and labor laws. Undocumented workers who challenge illegal employment practices 

risk losing their job and breaking up their families and other dire consequences of deportation. 

Roadmap to Citizenship: the Blue Card 

We are very pleased that the ClR bill contains a roadmap to citizenship for current and future 

fann workers and their families. We strongly suppot1 the proposal for a "blue card" program. 

under which experienced undocumented farm workers and their family members could earn legal 

immigration status. permanent residency and citizenship within a reasonable period of time and 

at a reasonable cost given their low incomes. Farm workers and their families are contributing to 

America: it is only fair that they he given an opportunity earn legal immigration status. An 

above-hoard agricultural labor relations system will lead to better working conditions. Jess 

employee turnover and higher productivity, all of which will help ensure a prosperous 

agricultural sector. The entire food system will benefit by responding to consumers increasing 

interest in the conditions under which their fruits and vegetables are produced. 

The New Nonimmigrant Agricultural Visa Program 

The new system would end or weaken certain longstanding H-2A labor protections but also 

would provide important new rights. We are very pleased that farm workers in the proposed 

future visa program will be covered by the Migrant and Seasonal Agricultural Worker Protection 

Act (A WPA), the main federal law that protects farnt workers. The program would also 

maintain the requirement that U.S. workers in corresponding employment receive the same 

wages and benefits as the visa workers (with unfortunate exceptions of housing for certain 

workers), and it contains a cap to limit the number of workers that may be brought in on the visa. 

We hope that portability provisions of the new visa program would offer workers some ability to 

move from job to job, v.:hich should mitigate some of the problems in the current H-2A program 

associated \Yith \vorkcrs being tied to their employer by their visa. However. we note that 

contract workers in the program \Vill have less freedom to change jobs, which could result in 

labor exploitation. There will need to be protections for contract workers, whose employers 

violate their lahar rights. They should be assisted in transferring to another position. 

The 50% job preference rule in the H-2A program that requires employers to hire any ready, 

willing and qualified U.S. worker up until 50% of the H-2A contract period is not in the current 

bill. The administration of the program by the U.S. Department of Agriculture instead of the 

U.S. Departtnent of Labor causes concern. The Departtnent of Labor has significant experience, 

expertise and infrastructure in operating guest worker programs and protecting workers. If this 

Preserving Families- Renewing Lives! 
514 

317 HAPPY DAY BLVD., SUITE 250 

CALDWELL, IDAHO 83607 

OFFICE: 208-454-1652 

FAX: 208-459-0448 

major change is maintained in the legislation. we support that the bill's provision of a 

consultative role for the U.S. Department of Labor. 

We note that other reductions in the requirements for and oversight of recruitment of U.S. 

workers could result in U.S. workers being displaced by workers on the visa. Thus. the modest 

protections for U.S. workers that are included in the current compromise language will be 

essential to protect the jobs of current U.S. workers and future legalizing workers. Further, once 

the bill is enacted, there will need to be stringent enltll'cemcnt of the protections in the program 

and labor laws protecting farm workers. 

The Broader Legalization Program and Worker Protections in the CJR Bill 

We applaud the bill's broader legalization program. We also strongly support the provisions in 

the bill that aim to protect immigrant and nonimmigrant workers from retaliation and abuse. 

including the protections against abuse in intemationallabor recruitment. Workers· experiences 

during the recruitment process have a substantial impact on their earnings and conditions in the 

U.S. Many temporary foreign workers arc charged high recruitment fees, in violation of federal 

law, to ohtain employment. To a!Tord those fees and transportation costs. workers often borrow 

money, frequently at high interest rates. Upon ani\'al in the U.S .. these indebted workers, 

particularly under the H-2A program and potentially in the future, arc too fearful of losing their 

jobs and deportation to challenge unfair or illegal conduct. The recruitment system must be 

regulated and transparent. Employers that use recruiters ftlr guest workers should disclose to the 

government the identities of the recruiters. ensure workers do not pay recruitment fees, and be 

responsible for abuses inflicted on \Vorkers when they have used unlicensed recruiters. 

In conclusion. we strongly support the proposal's road map to citizenship for undocumented faiTn 

workers and their families. We stress that the future nonimmigrant agricultural visa program is 

the product of a compromise and that its modest labor protections must remain in the bill and he 

enforced effectively in order for the program to be workable and fair. Thank you again for your 

efforts to bring farm workers one step closer to gaining legal status and the muchearned 

recognition for their contributions to the United States. 

Regards, 

Preserving Families- Renewing Lives! 
515 

Written Testimony of Farmworker Justice 

Before the Senate Judiciary Committee on 

"Comprehensive Immigration Reform Legislation" 

April 22, 2013 

Dear Senate Judiciary Committee: 

Farmworkcr Justice submits this statement for inclusion in the record of the April22. 2013 

Senate Judiciary Committee hearing on .. the Border Security. Economic Opportunity. and 

Immigration Modernization Act. S.744."' For over thirty years, Fannworker Justice has engaged 

in policy analysis, education and training. advocacy and litigation to empower farm workers to 

improve their wages and working conditions. immigration status, health, occupational safety and 

access to justice. Since its inception, Farmworker Justice has played an important role in 

immigration policy discussions, monitored the H-2A agricultural guestworker program 

throughout the country and helped farmworker organizations participate in policy debates. 

We applaud the bipartisan efforts to reach agreement on reforming our broken immigration 

system that Jed to the Border Security. Economic Opportunity. and Immigration Modernization 

Act of2013 (CIR Bill). We greatly appreciate the considerable time that the sponsors and their 

colleagues have spent to take into account the interests and knowledge of stakeholders in 

agriculture. \Vc also commend the United Farm Workers ( UF\V) fix its leadership in reaching a 

hard-fought compromise\\ ith agricultural employer organizations and a bipartisan group of U.S. 

Senators on immigration legislation regarding farnmorkcrs. This compromise should greatly 

increase support for comprehensive immigration reform and get us closer to dignity for fann 

workers. 

Farnmorker Justice seeks public policies and private conduct that treat the men and \\·omen 

employed on our ranches and farms \\ith dignity. The wages and \\orking conditions of most 

farm\\ orkers deserve imprO\ ement and immigration policy plays an impot1ant role in 

determining l~lrmworkcrs· ability to win such impro\·cmcnts. Immigration status is not only an 

important determinant ofjob terms. but also of the health and safety offarnmorkers. their famil) 

members and their communities. For these and other reasons. immigration policy has been at the 

core of' the mission or Farlll\\Orker Justice for its cntin: existence. 

We strongly support the inclusion in S. 7-l-l of a path to I em Cui permanent residency and 

citizenship for fann\\'orkers and their families. \Ve are troubled by some aspects of the bill. The 

nev\ nonimmigrant \vorker program for W -3 and W--l visas lacks certain protections and 

procedures that developed in agricultural guest\\ orker programs to remedy and prevent serious 

abuses. but it also contains labor protections of significant importance. The bill also creates a 

modest but critically important elTon to reduce serious abuses associated \\ith international labor 

recruitment on behalf of employers in the United States. We recognize that immigration reform 

cannot pass Congress\\ ithout the broad suppot1 that comes fl·om diflicult concessions to reach 

compromise. 

We encourage members of Congress to adopt a final bill that ensures t~1ir treatment for current 

and l'uture farm\\Orkers and their families. As the bill moves through the legislative process. we 
516 

write to emphasize the importance of granting a road map to citizenship for current and future 

fam1workers and their family members and including the bill's existing or stronger labor 

protections to help farm workers improve their living and working conditions. 

The Current Landscape: Greater Protections Needed for Farmworkers 

Our nation's broken immigration system. labor laws that discriminate against farmworkers, and 

the labor practices of many agricultural employers have combined to create an agricultural labor 

system that is unsustainable and fundamentally unfair to our farmworkers. The resulting 

turnover in the farm labor force means that now more than one-half of the approximately 2 

million seasonal farmworkers lack authorized immigration status. 1 The presence of 

undocumented workers depresses wages for all fannworkers. including the 700.000 to I million 

U.S. citizens and lawful immigrants in agriculture. But undocumented farmworkers are not 

leaving and they are needed. 

The lack of authorized immigration status of so many farmworkers contributes to their poor 

wages and working conditions. Farmworker wages are among the lowest in the country. Many 

earn at or just above the minimum wage. Poverty among farmworkers is more than double that 

of all wage and salary employees. Few farm workers receive any fringe benefits, such as paid 

sick leave or paid vacation. Decrepit. overcrowded housing is all too common. Health insurance 

is rarely provided by employers and few farm workers can afford to purchase it on their own. 

Yet. agriculture ranks among the most hazardous occupations. Federal laws on overtime pay and 

collective bargaining exclude farmworkers. as do most federal occupational safety standards and 

many states" workers' compensation systems. The absence of such protections harms 

farm workers and imposes a competitive disadvantage on those employers which voluntarily 

provide farm workers with the same minimum standards that apply to other occupations. 

Such marginalized workers fear joining labor unions. seeking improved job terms, or challenging 

illegal employment practices. Agricultural workers experience rampant violations of 

employment laws, including minimum wage requirements. Frequently, farm operators hire 

workers through farm labor contractors. whom they claim are the sole ''employers" for purposes 

of escaping immigration and labor laws. Undocumented workers who challenge illegal 

employment practices risk losing their job and breaking up their families and other dire 

consequences of deportation. 

Roadmap to Citizenship: the Blue Card 

Fannworker Justice strongly supports the CIR bill's inclusion of a roadmap to citizenship for 

current and future farmworkers and their families. We support the proposal's "blue card'' 

program. under which experienced undocumented farmworkers and their family members could 

earn legal immigration status. permanent residency and citizenship within a reasonable period of 

time and at a reasonable cost. Fannworkers and their families are contributing to America; it is 

1 Findings from the National Agricultural Workers Survey (NA WS) 200 I -2002: A Demographic and Employment 

Profile of United States Farm Workers, available at 

httP:' W\\.\\ .doh:-ta.l!.O\ 3.!.!.\\0f"L'r rep<1rt9 chapter l.cnn~digihilit\. 
517 

only fair that they be given an opportunity to earn legal immigration status. With a roadmap to 

citizenship. all f':Jrnmorkcrs. including the hundreds of thousands oCcurrent U.S. \\Orkcrs and 

the ne11 ly American. will be on a level pia) ing field. An above-board agricultural labor relations 

system will lead to better working conditions. less employee turnover and higher productivity. all 

of which will help ensure a prosperous agricultural sector. The entire food system will benefit 

by responding to consumers· increasing interest in the conditions under which their fruits and 

vegetables are produced. 

The bill imposes a harsh requirement. Despite having to prove that they have been employed in 

agriculture recently. the applicants must also continue to work in agriculture for three to five 

more years. The better policy would be to require employers to retain their workforce by 

improving job terms and provide farm workers with the same labor law rights of other workers. 

We arc also troubled by delaying eligibility for certain public benefits until five years after 

obtaining a green card. despite existing federal law which would enable eligible workers to 

qualify for benefits. such as SNAP food stamps. if they have been employed in the U.S. for 40 

work quarters. The wages of most farm workers are so low that access to subsidized nutrition. 

health and other benefits are important to helping farmworker children develop. Such 

concessions may be necessary to reach an agreement and the opportunity to obtain lawful 

permanent residency and citizenship is of critical importance. 

Implementation of the legalization program will present many challenges for farmworkers due to 

geographic, educational. language and other barriers. Applicants must hope that their previous 

employers- many of whom use fly-by-night labor contractors- will cooperate in documenting 

their past employment. Although the bill sets forth a reasonable application process. Congress 

must allocate sufficient resources to ensure that all eligible fannworkers are educated about the 

program and that government agencies are equipped to handle their applications efficiently and 

with understanding. 

The Current H-2A Temporary Agricultural Guestworker Program 

Currently, employers may hire foreign workers on temporary visas through the H-2A temporary 

foreign agricultural worker program. The H-2A program does not limit the number of visas 

available to employers each year, but contains important protections that were put in place in 

1987 by the Reagan Administration and restored by the Obama Administration in 20 I 0. The 

protections are intended to protect the jobs. wages and other labor standards of U.S. farm workers 

by encouraging employers to hire U.S. workers before turning to the guestworker program and 

by preventing wage depression and the deterioration of working conditions. They arc also aimed 

at reducing exploitation of foreign citizens of poor countries. These labor protections evolved 

over several decades and are rooted in the experiences of the Bracero program. which 

nonetheless became notorious for abuse of Mexican citizens during its twenty-two year history 

ending in 1964. These labor protections are inadequate to overcome the fundamentally flawed 

nature of the H-2A program and rampant violations of workers' rights are endemic. 

The H-2A program's inherent tlaws begin with the recruitment of the workers, who have 

typically paid illegal recruitment fees for the opportunity to work in the United States. Because 

the workers arrive indebted. they are desperate to work to repay their debt. The workers are tied 

to an employer for an entire season, must leave the country when the job ends and hope that the 
518 

employer will request a visa for them in a following year. All of these factors make workers 

extremely vulnerable to abuse. Often employers prefer guestworkers over U.S. workers because 

they are more vulnerable and less likely to challenge illegal conduct, in addition to other factors: 

(I) guestworkers will work at the limits of human endurance for low wages because they are tied 

to the employer and desperate to repay debt. U.S. workers seek more sustainable productivity 

expectations; (2) the l-I-2A employer does not pay Social Security or Unemployment Tax on the 

guestworkers' wages, but must do so on the U.S. workers' wages. saving about 10-13% per 

worker; (3) H-2A workers are excluded from the principal federal employment law for 

farmworkers. the Migrant and Seasonal Agricultural Worker Protection Act; and (4) employers 

are able to handpick their H-2A workers -they are virtually all young men- because antidiscrimination laws aren't enforced in the recruitment process abroad. 

The New Nonimmigrant Agricultural Visa Program 

The new system ofW-3 and W-4 visas that would replace the H-2A program would end or 

weaken certain longstanding H-2A labor protections but it would also provide important new 

rights. We arc very pleased that farmworkers in the proposed future visa program will be 

covered by the Migrant and Seasonal Agricultural Worker Protection Act (A WPA). the main 

federal employment law that protects farmworkers. The exclusion of H-2A guestworkers from 

A WPA has led to many abuses. The program would also maintain the requirement that a 

participating employer provide U.S. workers in corresponding employment the same wages and 

benefits as the visa workers (with unfortunate exceptions of housing). The bill contains a cap to 

limit the number of W-3 and W-4 visas. We hope that portability provisions of the new visa 

program, which ofler workers some ability to move from job to job. mitigate some of the 

problems associated with H-2A workers being tied to their employer by their visa. However. we 

note that W -3 contract workers in the program will have less freedom to change jobs than the W4 visa holders or U.S. workers. which creates the potential for labor exploitation. The bill 

contains some protections for contract workers but special attention will need to be paid to 

remedy and prevent violations of their labor rights. At a minimum. victimized contract workers 

should be assisted in transferring to another position. 

Some of the other provisions give us pause. The 50% job preference rule in the H-2A program 

that requires employers to hire any ready. willing and qualified U.S. worker up until 50% of the 

H-2A contract period is not in the current bill. Nonimtnigrant agricultural visa workers can 

remain in the U.S. for as long as 3 years and then renew their visa for another 3 years. but will 

not be able to bring their spouses and dependent children with them, which will separate 

families. The administration of the program by the U.S. Department of Agriculture instead of 

the U.S. Department of Labor causes concern. The Department of Labor has significant 

experience. expertise and infrastructure in operating guestworker programs and protecting 

workers. lfthis major change is maintained in the legislation. we support that the bill's provision 

of a consultative role for the Department of Labor. We also strongly support the bill's 

assignment of enforcement of worker protections to the Department of Labor. which will be able 

to accept worker complaints but also initiate investigations and remedy violations. However. the 

Department of Labor's limited resources means that the Congress must maintain the bill's 

provisions covering nonimmigrant workers under the Migrant and Seasonal Agricultural Worker 

Protection Act and continuing the guestworkers' eligibility for federally-funded legal aid 

programs' assistance. 
519 

We note that other reductions in the requirements for and oversight of recruitment of U.S. 

workers could result in U.S. workers being displaced by workers on the visa. Thus, the modest 

protections for U.S. workers that are included in the current compromise language will be 

essential to protect the jobs of current U.S. workers and future legalizing workers. Further. once 

the bill is enacted, there will need to be stringent enforcement of the protections in the program 

and labor laws protecting farm workers. 

We applaud the oppmiunity for nonimmigrant visa farmworkers to eventually apply for green 

cards but we are concerned that the waiting period could last many years. 

Other Provisions of the CIR Bill 

We also strongly support the provisions in the bill that aim to protect immigrant and 

nonimmigrant workers from retaliation and abuse, including the protections against abuse in 

international labor recruitment. Workers' experiences during the recruitment process have a 

substantial impact on their earnings and conditions in the U.S. Many temporary foreign workers 

-not just agricultural workers- are charged high recruitment fees. in violation of federal law, to 

obtain employment. To afford those fees and transportation costs, workers often borrow money 

from the recruiters, frequently at high interest rates. In some cases, recruiters misrepresent the 

amount and conditions of work that will be available in the U.S. Upon arrival in the U.S., these 

indebted workers, particularly under the H-2A program and potentially in the future, are too 

fearful of losing their jobs and deportation to challenge unfair or illegal conduct. It has often 

been said that many guestworkers ''work scared'' and therefore are compliant and highly 

productive at low wages in comparison to workers with freedom in the marketplace. The 

recruitment system must be regulated and transparent. International labor recruiters should be 

required to register with the government to aid in monitoring the treatment of migrating workers. 

Employers that use recruiters for guestworkers should disclose to the government the identities 

of the recruiters. ensure workers do not pay recruitment fees, and be responsible for abuses 

inflicted on workers when they bave used unlicensed recruiters. 

In conclusion, we strongly support the proposal's road map to citizenship for undocumented 

fannworkers and their families. We stress that the future nonimmigrant agricultural visa 

program is the product of a compromise and that its modest labor protections must remain in the 

bill and be enforced effectively in order for the program to be workable and fair. Thank you 

again for your efforts to bring undocumented farm workers one step closer to gaining legal status 

and the much-earned recognition for their contributions to the United States. 

Bruce Goldstein 

President 

Farm worker Justice 

I 126 1 6'h St., NW, Suite 270 

Washington. D.C. 20036 

(202) 293-5420 

\\v\w.farmworkerjusticc.onl 
520 

April 21, 2013 

Communication from Former Attorneys General 

Senator Patrick J. Leahy 

Chair, Senate Judiciary Committee 

Senator Chuck Grassley 

Ranking Member, Senate Judiciary Committee 

Dear Senator Leahy and Senator Grassley: 

We, the undersigned bipartisan group of fanner state Attorneys General, wish to convey our 

support for legislative efforts to pass common sense immigration reform in conjunction with 

increased border security. A practical, comprehensive reform to our federal immigration laws 

will significantly improve public safety within our states. 

Having served as the chief law enforcement officer in each of our states and jurisdictions, we 

witnessed the myriad ways in which our broken federal immigration system makes the most 

basic law enforcement functions far more difficult. 

The public safety problems created by the current broken system include: 

The large numbers of immigrants in an unauthorized status coming across our borders 

create many opportunities for the truly dangerous criminals to hide within their midst. 

Today, even with the reduced numbers coming across the border illegally, it is relatively 

easy for cartel operatives, traffickers, and other serious criminals to hide among the large 

number of people crossing for employment in the United States. In this way, the current 

immigration system often makes our border less secure. 

Law enforcement is seriously impaired by an inability to accurately identify residents in 

an unauthorized status they encounter. The current system encourages these immigrants 

to find false identification for employment and basic needs. As a result, law enforcement 

often cannot determine who a person is or reliably investigate that person's background. 

Thus, our current immigration system both undermines the ability oflaw enforcement 

officers to carry out their duties and adds to the risks they face. 

The current system decreases the effectiveness of community policing efforts throughout 

the Nation. Many immigrants, whether in this country legally or illegally, do not report 

crimes, serve as witnesses, or generally cooperate with law enforcement eiTorts for fear 

of generating inquiries into their immigration status. This lack of trust between 

immigrants and law enforcement officers makes it far more difficult to enforce laws and 

far easier for criminals to perpetrate their crimes, both against undocumented immigrants 

and others. 
521 

To address these problems, we should use every law enforcement tool available to keep 

dangerous individuals and drugs from illegally crossing the border into our country and money 

and guns from being transferred to organized criminals in Mexico. At the same time, 

immigration reforms should be adopted to address the II million undocumented immigrants 

already in the United States. 

In the interest of public safety, increased border security and comprehensive immigration reform 

should not be an either/or proposition. We need both. Put simply, practical, comprehensive 

refonn to our federal immigration laws will make us all safer. 

We urge you to move forward expeditiously Vvith consideration and action on comprehensive 

immigration reform. Thank you. 

Robert Abrams 

David Armstrong 

Thurber! Baker 

Paul Bardacke 

William J. Baxley 

Mark Bennett 

Charlie Brown 

Richard H. Bryan 

Bob Butterworth 

Bonnie Campbell 

Pamela Carter 

Steve Clark 

Walter Cohen 

Frankie Sue Del Papa 

Bob Del Tufo 

Larry Derryberry 

M. Jerome Diamond 

Richard Doran 

Jim Doyle 

Mike Easley 

Rufus Edmisten 

Drew Edmondson 

Tyrone Fahner 

Sincerely, 

New York Attorney General 1979-1993 

Kentucky Attorney Generall983-1988 

Georgia Attorney General 1997-2011 

New Mexico Attomey General 1983-1986 

Alabama Attorney General 1970-1979 

Hawaii Attorney General2003-2010 

West Virginia Attorney General 1985-1989 

Nevada Attorney General 1979-1983 

Florida Attorney General 1986-2002 

Iowa Attorney General 1991-1995 

Indiana Attorney General 1993-1997 

Arkansas Attorney General 1979-1990 

Pennsylvania Attorney General 1995 

Nevada Attorney General 1991-2003 

New Jersey Attorney General 1990-1993 

Oklahoma Attorney General 1971-1979 

VennontAttomey Generall975-1981 

Florida Attorney General 2002-2003 

Wisconsin Attorney General199!-2003 

North Carolina Attorney General1992-2001 

North Carolina Attorney General 1974-1984 

Oklahoma Attorney General1995-20ll 

Illinois Attorney General 1980-1983 
522 

Lee Fisher 

Steve Freudenthal 

David B. Frohnmayer 

Jose Fuentes Agostini 

Richard Gebelein 

Terry Goddard 

Chris Gonnan 

Slade Gorton 

Jan Graham 

Jennifer Granholm 

Mike Greely 

Peter Harvey 

Peter Heed 

Robert Henry 

Drew Ketterer 

Bronson La Follette 

Peg Lautenschlager 

Michael Lilly 

Patrick Lynch 

Rob McKenna 

Mark Meierhenry 

Jeff Modisett 

Mike Moore 

Hardy Myers 

Richard Opper 

Jerry Pappert 

Jim Petro 

Jeff Pine 

Ed Pittman 

Hector Reichard 

Dennis Roberts 

Steve Rosenthal 

Steve Rowe 

Jim Shannon 

Mark Shurtleff 

Linda Singer 

Ohio Attorney General 1991-1995 

Wyoming Attorney General 1981-1982 

Oregon Attorney General 1981-1991 

Puerto Rico Attorney General 1997-2000 

Delaware Attorney General 1979-1983 

Arizona Attomey General 2003-2011 

Kentucky Attorney General 1992-1996 

Washington Attorney General 1969-1980 

Utah Attorney General 1993-2000 

Michigan Attorney General 1999-2003 

Montana Attorney General 1977-1988 

New Jersey Attorney General 2003-2006 

New Hampshire Attorney General 2003-2004 

Oklahoma Attorney General 1987-1991 

Maine Attorney General 1995-2001 

Wisconsin Attorney General 1964-1968; 1974-1986 

Wisconsin Attorney General 2003-2007 

Hawaii Attorney General 1984-1985 

Rhode Island Attorney General 2003-2011 

Washington Attorney General2005-2013 

South Dakota Attorney General 1979-1986 

Indiana Attorney General 1997-2000 

Mississippi Attorney General 1987-2003 

Oregon Attorney General 1997-2009 

Guam Attorney General 1983-1986 

Pennsylvania Attorney General 2003-2005 

Ohio Attorney General 2003-2007 

Rhode Island Attorney General 1993-1999 

Mississippi Attorney General 1984-1988 

Puerto Rico Secretary of Justice 1981-1983 

RI1ode Island Attorney General 1979-1985 

Virginia Attorney General 1993-1994 

Maine Attorney General2001-2009 

Massachusetts Attorney General 1987-1991 

Utah Attomey General2000-2012 

District of Columbia Attorney General 2007-2008 
523 

Steve Six 

Gregory Smith 

Jim Smith 

Nicholas Spaeth 

Robert Stephan 

lver Stridiron 

Roger Tellinghuisen 

Mary Sue Terry 

Jim Tierney 

Anthony Troy 

Mike Turpen 

John Van de Kamp 

Knox Walkup 

Bob Wefald 

Mark White 

Duane Woodard 

Grant Woods 

Kansas Attorney General 2008-20 II 

New Hampshire Attorney General 1980-1984 

Florida Attorney General 1979-1987 

North Dakota Attorney General 1985-1993 

Kansas Attorney General 1979-1995 

Virgin Islands Attorney General 1999-2004 

South Dakota Attorney General 1987-1990 

Virginia Attorney General 1986-1993 

Maine Attorney General 1995-200 I 

Virginia Attorney General 1977-1978 

Oklahoma Attorney General 1983-1986 

California Attorney General 1983-1991 

Tennessee Attorney General 1997-1 999 

North Dakota Attorney General 1981-1984 

Texas Attorney General 1979-1983 

Colorado Attorney General 1983-1991 

Arizona Attorney General 1 991-1 999 

cc: Senator Harry Reid and Senator Mitch McConnell 

Members of the Judiciary Committee 

Secretary Janet Napolitano, DHS 

Attorney General Eric Holder, DOJ 
524 

Dear Senate Judiciary Committee: 

The Farm worker Association of Florida, Inc. 

La Asociaci6n campesina de Florida 

Asosiyasyon Travaye Late 

Our organization, The Fannworker Association ofFlorida, serves farmworkers, We submit 

this statement for inclusion in the record oft he Aprill9, 2013 Senate Judiciary Committee 

hearing on "Comprehensive Tmmigration Reform Legislation," We believe that immigration 

reform is oft he utmost importance to helping fannworkcrs and their families have the 

opportunity to lead productive, healthy lives. We are therefore grateful to you anti your 

colleagues, who have spent considerable effort to take into account the interests and 

knowledge of stakeholders in agriculture and to develop legislation to reform our broken 

immigration system. 

We're very pleased that farmworker and grower representatives have come to an agreement 

on immigration reform for agriculture, This compromise should greatly increase suppm1 for 

comprehensive immigration reform and get us closer to dignity for f.'ltm workers, As the 

Border Security, Economic Oppottunity, and Immigration Modernization Act of 2013 (CIR 

bill) moves through the legislative process, we write to emphasize the importance of labor 

protections for immigrant farmworkers and urge you to ensure that existing worker 

protections remain in the bill or arc strengthened. 

The Cur•·~nt Landscape: Gr~ater Protections Needed fot• Fm·mworkcrs 

The lack of authorized immigration status of so many farmworkers contributes to their poor 

wages and working conditions. Farmworkcr wages are among the lowest in the countly. 

Many earn at o•·just above the minimum wage, Poverty among farmworkers is more than 

double that of all wage and salary employees. Few farm workers receive any fringe benefits, 

such as paid sick leave or paid vacation. Decrepit, overcrowded housing is all too common. 

Health insurance is rarely provided by employers and few farmworkers can afford to 

purchase it on their own, Yet, agriculture ranks among the most hazardous occupations, 

Federal laws on overtime pay and collective bargaining exclude farmworkers, as do most 

federal occupational safety standards and many states' workers' compensation systems, 

Such marginalized workers fear joining labor unions, seeking improved job terms, or 

challenging illegal employment practices. Agricultural workers experience rampant 

violations of employment laws, including minimum wage requirements. Frequently, farm 

operators hire workers through farm labor contractors, whom they claim are the sole 

"employers" for purposes of escaping immigration and labor laws, Undocumented workers 

who challenge illegal employment practices risk losing their job and breaking up their 

families and other dire consequences of deportation, With a roadmap to citizenship, all 
525 

[J 

The Farmworker Association of Florida, Inc. 

La Asociacion Campesina de Florida 

Asosiyasyon Travaye Late 

brmworkers, including the hundreds of thousands of current U.S. workers and the 

newly American, will be on a level playing field. 

Roadmap to Citizenship: the Blue Card 

We arc very pleased that the CUt bill contains a road map to citizenship for current and fhture 

farmworkcrs and their families. We strongly support the proposal tbr a "blue card" program, 

under which experienced undocumented farmworkcrs and their family members could earn 

legal immigration status, pcnnancnt residency and citizenship within a reasonable period of 

time and at a reasonable cost given their low incomes. Farmworkers and their t1unilics arc 

contributing to America; it is only fair that they be given an opportunity earn legal 

immigration status. With a roadmap to citizenship, all farm workers, including the hundreds 

of thousands of current U.S. worker·s and the newly American, will be on a level playing 

field An above-board agricultural labor relations system will lead to better working 

conditions, less employee turnover and higher productivity, all of which will help ensure a 

prosperous agricultural sector. The entire food system and other non-eatable farm products 

will benefit by responding to consumers' increasing interest in the conditions under which 

their fl·uits and vegetables are produced. 

The New Nonimmigrant Agricultural Visa l't·ogram 

The new system would end or weaken certain longstanding 11-2A labor protections but also 

would provide important new rights. We are very pleased that farmworkers in the proposed 

future visa program will be covered by the Migrant and Seasonal Agricultural Worker 

Protection Act (AWPA), the main federal law that protects farmworkcrs. The program 

would also maintain the requirement that US. workers in corresponding employment receive 

the same wages and benefits as the visa workers (with unfortunate exceptions of housing for 

certain workers), and it contains a cap to limit the number of workers that may be brought in 

on the visa. We hope that portability provisions of the new visa program would offer 

workers some ability to move n·om job to job, which should mitigate some of the problems in 

the current H-2A program associated with workers being tied to their employer by their visa 

However, we note that contract workers in the program will have less freedom to change 

jobs .. which could result in labor exploitation. There will need to be protections lbr contract 

workers, whose employers violate their labor rights. They should he assisted in transfcn·ing 

to another position. 

Some of the other provisions give us pause. The 50% job preference mle in the H-2A 

program that requires employers to hire any ready, willing and qualified U.S. worker up until 

50% of the H-2A contract period is not in the current bill. The administration of the program 
526 

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A)ap!.a,Ft321G3 

(401;HBa·S~!J!M 

{;QJIR81-fio;4fex 

0 

The Farmworker Association of Florida, Inc. 

La Asociaci6n Campesina de Florida 

Asosiyasyon Travaye Late 

by the U.S. Department of Agriculture imtead of the TJ.S. Department of Labor causes 

concern. The Department ofLabor has signi[icant experience, expertise and infrastructure in 

operating guest worker programs and protecting workers. Tfthis major change is maintained 

in the legislation, we support that the bill's provisinn of a consultative role for the 

Department ofLabor. We note that other reductions in the requirements for and oversight of 

recruitment ofUS. workers could result in U.S. workers being displaced by workers on the 

visa. Thus, the modest protections for US. workers that are included in the current 

compromise language will be essential to protect the jobs of current U.S. workers and future 

legalizing workers. Fm1her, once the bill is enacted, there will need to be stringent 

enforcement of the protections in the program and labor laws protecting farmworkers. We 

applaud the opportunity for nonimmigrant visa farmworkers to eventually apply for green 

cards but we are concerned that the waiting period could last many years. 

The. Broader· Legalization Program and Worker Po·otections in the CJR Bill 

We applaud the bill's broader legalization program. We also strongly support the provisions 

in the bill that aim to protect immigrant and nonimmigrant workers from retaliation and 

abuse, including the protections against abuse in international labor recruitment. Workers' 

experiences during the recruitment process have a substantial impact on their earnings and 

conditions in the U.S. Many temporary foreign workers arc charged high recruitment fees, in 

violation of federal Jaw, to obtain employment. To afford those fees and transportation costs, 

workers often borrow money, frequently at high interest rates. Upon arrival in the U.S., these 

indebted workers. particularly under the H-2A program and potentially in the nl!urc, arc too 

fearful of losing their jobs and deportation to challenge unfair or illegal conduct. It has often 

been said that many guestworkers "work scared" and therefore are compliant and highly 

productive at low wages in comparison to workers with ll:cedom in the marketplace. The 

recruitment system must be regulated and transparent. Employers that use recruiters for 

gucstworkcrs should disc.lose to the government the identities orthe recruiters, ensure 

workers do not pay recruitment tees, and he responsible lor abuses inllicted orr workers when 

they have used unlicensed recruiters. In conclusion, we strongly support the proposal's road 

map to citizenship for undocumented fannworkers and their families. We stre.<S that the 

future nonimmigrant agricultural visa program is the product of a compromise and that its 

modest labor protections must remain in the bill and be enforced effectively in order for the 

program to be workable and fair. Thank you again for your efforts to bring farmworkers one 

step closer to gaining legal status and the much-earned recognition for their contributions to 

the United States. 
527 

Written Statement of 

Chad Griffin 

President 

Human Rights Campaign 

To the 

Committee on Judiciary 

United States Senate 

Room216 

Hart Senate Office Building 

April22, 2013 

Mr. Chairman and Members of the Committee: 

My name is Chad Griffin, and I am the President of the Human Rights Campaign, America's 

largest civil rights organization working to achieve lesbian, gay, bisexual and transgender 

(LGBT) equality. On behalf of our over 1.5 million members and supporters nationwide, I 

applaud the bipartisan introduction of the Border Security, Economic Opportunity, and 

Immigration Modernization Act of2013 (S. 744) and urge the members of this committee to 

amendS. 744 to provide relief to the lesbian and gay families who, under current immigration 

law, are often forced to choose between the country they love and the person they love. 

John Beddingfield and Erwin de Leon are one such family. They have been together since 1998 

and were married in Washington, DC in 2010. John, a North Carolina native, is an Episcopal 

priest and rector of All Souls Memorial Episcopal Church. Erwin, originally from the 

Philippines, is a Ph.D. candidate whose student's visa will expire when he completes his degree 

this year. 

If John and Erwin were a straight couple, Erwin would receive a green card as a result of their 

marriage, making Erwin eligible for permanent residency in the U.S. But because they are gay, 

and even though they are legally married, they are faced with the prospect of either having to 

separate or to leave their home, friends, family-and the country they love. 

All across our country, same-sex binational couples like John and Erwin are struggling to see a 

future for their families. There are an estimated 24,700 same-sex binational couples (one 

nativeborn U.S. citizen and one noncitizen) in the U.S. today, and it is estimated that these 

couples are raising over II ,000 children. These couples, these children and these families 

deserve better than the discriminatory treatment they receive under current laws. 

There is no doubt that S. 744 brings us one step closer to the historic immigration reform this 

country desperately needs. From a pathway to citizenship, to a solution for young DREAMers. to 
528 

much-needed refonn for asylum-seekers and our immigration detention facilities, this bill will 

change millions oflives for the better. 

The bill will provide a brighter future to the 267,000 undocumented LGBT adult immigrants 

who are forced into the shadows of society. It will help the LGBT champions of the DREAM 

Act finally be recognized for who they are Americans. It will ensure that individuals who flee 

anti-LGBT violence in their home countries will not be denied asylum because of an arbitrary 

filing deadline. And, it will protect LGBT immigrants in detention from experiencing abuse and 

solitary confinement by increasing detention oversight and detention alternatives. 

However, as drafted, the bill omits critical language that would end discrimination against the 

tens of thousands of same-sex binational couples like John and Erwin. Because of the Defense of 

Marriage Act, U.S. citizens and residents cannot sponsor a same-sex partner for family-based 

immigration, unlike their heterosexual counterparts. Amending S. 744 to include the Uniting 

American Families Act (UAF A) would remedy this injustice. 

UAF A provides lesbian and gay individuals the same opportunity as opposite-sex married 

couples to sponsor their partner. Lesbian and gay couples, just like their straight peers, would 

need to fulfill strict requirements to show proof of their relationship including affidavits from 

friends and family or evidence of financial support. And, in line with current immigration law, 

UAF A would impose harsh penalties for any fraud, including up to five years in prison and as 

much as $250,000 in fines. 

For decades, the family unit has been a cornerstone of immigration law. UAFA not only keeps 

those families together, but it keeps our country economically secure by recognizing the family 

as the center of economic stability. 

Alessandro (Sandro) Tomassetti and A! on Rosenfeld were married in California and spent 14 

years building a life together in Los Angeles. Sandra, a Canadian, was recruited to the U.S. by 

Disney to work on feature films. Alon, who is Israeli-born, was brought to the U.S. by Microsoft. 

After 4 years of working in the special effect industry in Los Angeles, Sandra left his job, 

retrained and opened up a small business with the help of Alon. Alon, meantime, stayed at 

Microsoft and received his U.S. citizenship. 

In 2010, Sandra's visa was set to expire and, because the U.S. does not recognize his marriage to 

A! on, the couple was forced to close their nationally-recognized small business in order to move 

their life abroad. Microsoft lost an employee with over a decade of experience. Los Angeles lost 

a small business that provided jobs for over 30 individuals. 

Every year, highly-skilled couples like Sandra and A! on are forced to relocate their lives and 

livelihoods abroad. When they leave for one of over two dozen countries that offer residency for 

lesbian and gay partners, we lose their talent and skills to a foreign competitor. We lose the taxes 

they pay. We lose the small businesses they run. Our communities suffer. Discrimination has a 
529 

needlessly high cost. That is why nearly 30 Fortune 500 companies have supported UAFA, 

declaring that it will allow them to recruit and keep the best talent in America. 

As a matter of basic justice, hardworking people who come to the U.S. seeking a better life 

should be treated fairly regardless of whom they love. At this moment of bipartisan consensus, 

this committee should seize the chance to do the right thing for couples like John and Erwin, and 

Sandro and Alon. With one amendment, you have the opportunity to adopt a commonsense 

policy that is rooted in legal and economic fairness-guaranteeing that immigration reform is 

truly comprehensive. Please adopt UAFA and send this vital bill to the floor for passage. 
530 

Written Testimony 

Of 

Carl Camden 

CEO 

Kelly Services, Inc. 

on 

s. 74 

"The Border Security, Economic Opportunity, and 

Immigration Modernization Act" 

April 25, 2013 

Mr. Chairman, members of the Senate Judiciary Committee, my name is Carl Camden. I am President 

and Chief Executive Officer of Kelly Services. I am pleased to submit testimony for the record on 'The 
531 

Border Security, Economic Opportunity, and Immigration Modernization Act, S.74." 

I am encouraged that immigration reform is now gaining the attention it richly deserves. Even a year 

ago, it would have seemed unlikely that a broad based solution to repair and update our broken 

immigration system would be the subject of hearings such as these. 

Common sense, solutions-oriented immigration reform is crucial to the long term competitiveness of 

the U.S. economy. It is a crucial ingredient in the sustainable and sustained economic growth that is 

required to effectively address our tax and budget issues. It is crucial to assure proper workplace 

protections to a group that is too easily exploited by unscrupulous bad actors. It is crucial to restoring a 

level playing field for those employers who do the right thing. 

Kelly Services brings unique experience and expertise on the employment marketplace and sees, 

everyday, the impact of immigration policy in undermining US competitiveness. Founded in 1946, Kelly 

has evolved from a United States-based company concentrating primarily on traditional office staffing 

into a global workforce solutions leader offering a full breadth of specialty services. Kelly ranks as one of 

the worlds largest staffing companies across a range of disciplines from science, law, finance and 

engineering to contact center, and light industrial. As the human capital component of the U.S. and 

global economies has become more complex, Kelly has developed a suite of solutions to help many of 

the world's largest companies manage the full range of their talent and workforce supply needs. We 

connect our workers with work in a way that allows them to choose a work style that meets their 

current needs and circumstances. We connect our clients with the talent they need to successfully 

execute strategies in the hyper competitive global economy. We help our clients bring state of the art 

human capital management practices to their entire workforce, not just their regular employees. 

The nature of Kelly's business gives us real time visibility into the talent needs of our nation's top 

employers- the Fortune 100. Make no mistake; there is a fierce global war for talent going on right now. 

What we need to recognize is that talent always wins this war. Talent and work will always find each 

other. They always have; the frequent efforts of governments to the contrary notwithstanding. We must 

understand that talent now has a wider global array of choices that ever before. We need to do all we 

can to make the United States the best place in the world for the intersection of talent and opportunity. 

Global companies are keenly aware of the increasing talent shortages in key disciplines. This concern 

repeatedly ranks near the top of the list in multiple surveys of what keeps CEOs awake at night. If the 

talent cannot come to the work, then global companies will have no choice but to take the work (and 

the associated capital investment) to the places that welcome and attract the talent. 

2 Written Testimony of Carl Camden, CEO, Kelly Services, Inc. on S.74 
532 

The Border Security, Economic Opportunity, and Immigration Modernization Act, S.74 recognizes and 

responds to these new realities in several encouraging ways. The increase in Hl-B visas is an important 

step, and the change to allow the dependents of Hl-B visa holders not to count against the numeric 

limitation is a much needed change that will help make us more attractive to globally mobile talent. 

Likewise, the creation in 2015 of a merit based pool of visas taking into account a mix of family ties, 

work history in the U.S., and strength of work skills, takes us directionally where we want to go. It is in 

America's enlightened self interest to do so, and importantly, it follows established international trends 

in immigration laws, as other country's act to address their own talent needs and economic 

competitiveness. 

Perhaps most exciting is the creation of a new start-up visa for foreign entrepreneurs. Immigrants to our 

country have a rich and consistent history of starting and building successful businesses. Numerous 

studies document conclusively the positive economic benefits attributable to such immigrants. They 

create employment opportunities for others and economic growth in our communities. We no longer 

enjoy the luxury of being the only place in the world such people aspire to. This is another needed and 

positive step to make the U.S. the destination of choice for people with energy and vision. We need and 

want these people to pursue their dreams here as so many have done before them. 

But the issue is not exclusively about high skill immigrants and high skill jobs. Benefits to our economy 

are not limited to the arrival of high skill immigrants alone. On the contrary, lower skill workers are 

needed now, and our demographic (an aging workforce) and educational (generally rising educational 

achievement) trends make clear that we will continue to need more low-skilled workers than are 

available in America in the future. Certain enterprises depend on these workers, and therefore, so do 

the higher skill workers of the same employer. The legislation rightfully addresses the needs of both the 

employers of low skill workers and their employees. 

For those of us who generally favor free markets, the truly innovative feature of the proposed 

temporary worker program is that workers would not be tied to a single employer. While they would be 

required to have a job prior to entering the country, they would also be free to change jobs, and accept 

work from other employers in the program. This newfound autonomy and mobility is a significant step 

forward in empowering those workers, and is a practical and effective protection against potential 

overreach by employers. 

All legitimate employers are concerned with competitors who play fast and loose with our immigration 

system. It hurts our reputation as employers and causes us economic harm. I welcome the strengthened 

employee verification provisions as a step needed to level the playing field for those businesses that 

play by the rules. 

3 Written Testimony of Carl Camden, CEO, Kelly Services, Inc. on S.74 
533 

While I am not an expert on the proper numbers for any of the visa categories covered by the bill, nor 

the precise capital and employment requirements appropriate for the entrepreneurial visa; it is fair to 

say that a realistic opportunity for significant immigration reform does not occur often. Therefore, while 

we have that opportunity, let us make full use of it to build a new system that will serve future, as well 

as current needs. 

I know the path forward is likely difficult and contentious. I commend and pledge my continued support 

for your efforts. Finally, I urge you in the strongest possible terms to press on despite the obstacles; to 

continue the hard work necessary to create a common sense system of legal immigration for the 21" 

century. 

Thank you. 

4 Written Testimony of Carl Camden, CEO, Kelly Services, Inc. on 5.74 
534 

April23, 2013 

The Honorable Christopher Coons 

127 A Russell Senate Office Building 

Washington, DC 20510 

Dear Senator Coons, 

As you know, America faces an immediate and long-term employment crisis due to a chronic shortage of 

qualified workers in STEM fields. Despite high unemployment, the number of available science, 

technology, engineering, computer science and mathematics jobs far outpaces our ability to fill them. 

For example, according to a widely quoted Bureau of Labor Statistics report, only 40,000 U.S. bachelor 

degrees are awarded in the computer science field annually, despite the fact that around 120,000 new 

computer science jobs are created in the United States every year. 

This systemic failure endangers the competitiveness of U.S. firms in a rapidly changing global economy, 

especially as many other nations successfully educate their own citizens in critical STEM areas. It also has 

longer term implications on the health and vitality of our educational system, as it will become 

increasingly difficult for our primary and secondary schools to develop curriculums that can interest and 

educate American students in cutting edge science and technology fields. 

With this in mind, inSPIRE STEM USA was established to support a linkage between the temporary need 

for foreign high skilled workers and a longer term desire to promote STEM education in America. 

inSPIRE STEM USA, a coalition which is co-chaired by former Senator John E. Sununu and Maria Cardona, 

aims to address this problem by advocating for an approach that can immediately sharpen America's 

economic competitiveness through modernization of the H-1B visa process while providing long-term 

support to improve training of tomorrow's workforce. 

inSPIRE STEM USA includes organizations, companies and leaders, who are committed to ensuring the 

United States remains competitive globally by training and graduating more engineers, mathematicians 

and computer scientists. Our membership is comprised of companies that rely on high tech workers, 

representatives of educational interests that are concerned with the erosion of effective STEM 

education in this nation, and a variety of groups supporting progressive immigration policies. We have 

attached a list of our coalition's membership. 

inSPIRE STEM would like to thank the U.S. Senate for initiating a critical debate that could address 

immediate needs for high tech employers while developing a long term commitment to upgrading 

STEM and computer science educational opportunities in the United States. 
535 

In particular, we commend you and the other members who have advocated for the inclusion of a STEM 

and computer science education component in this bill. And while we applaud the bill in its current 

form, inSPIRE STEM USA recommends a more robust STEM fund like the one you and Senators Hatch, 

Rubio and Klobuchar included in the Immigration Innovation Act (!-Squared), which has 26 bipartisan 

Senate cosponsors. We hope you will strongly advocate for the inclusion of such a fund in any 

immigration reform package that is considered moving forward. 

Finally, inSPIRE STEM USA hopes that that any STEM fund be administered to provide the most "bang for 

its buck," to guarantee educational opportunities in STEM and computer science discipline areas, and 

ultimately to provide the largest long-term supply of STEM educated U.S. workers. 

Again, we would like to thank you and your colleagues in the Senate for all the hard work you have put 

into crafting this important legislation, and we look forward to providing assistance as you continue your 

important work. 

Kindest regards, 

Be neva Schulte 

Executive Director inSPIRE STEM USA 
536 

CATERPILLAR' a a 

liB 

J As 0 N JOlNT C£N1£fl 

NCTM 
537 

Our paramount mission is to contribute to the security and stabili(V C{[ the United States. To that 

end, we shall propose and be advocated.for immigration laws and policies that we believe serve 

those national interests, and we will oppose those That do not. 

National Assodation of Former Border Patrol Officers 

Pre.ss Releasq April 22,2013 

NAFBPO Offers Alternative to Flawed Senate Immigration Bill 

In October 2010, NAFBPO developed and distributed to all members of the House and Senate a 

Comprehensive Immigration Enforcement and Retorm proposal (C!ER) This proposal was 

developed by a select group of subject matter experts who collectively have years of experience 

in immigration laws and border entorcement 

As stated in our CJER, we have immigrarion laws to regulate which and how many foreigners we 

are going to allow to enter this country; that is the sovereign right and duty of every country. 

Properly formulated and enforced immigration laws would: 

" Protect national security and sovereignty 

" Protect American jobs and social programs 

• Enhance public safety 

• Guard public health 

As currently wril!en. a number of the concepts outlined in the soon to be released Senate Bill ass 

several bureaucratic platforms that are non-verifiable and non-enforceable, which do not 

adequately address the li.lur principles listed above that are critical to our national well-being and 

security. 

The nation is about to undertake the largest collective legalization of illegal aliens in its history. 

lt is estimated that 11 million illegal aliens will fall under the umbrella ofthe proposed Senate 

legislation. This legislation faits to adequately address "chain migration" (immediate family 

members to follow), that \vi!! undoubtedly add a significant number to the total. Tins will result 

in catastrophic consequences to our job market, hcalthcare institutions, public welfare, and 

educational institutions. 

NAFBPO's CIER addresses these issues in a common sense way. The Temporary Worker 

Prog.ram detailed in NAFBPO's C IER adequately meets the needs of employers. Other existing 
538 

laws set forth in the commonsense CIER should be enforced. This CIER should be reviewed by 

our lawmakers any final decision on this volatile issue. 

NAFBPO, Inc. 

P.O Box 20l2, Brunswick, GA 3152!-2012 

Chairman: &'Orge (Zack) Vice-Chairman: JeffEvcryly 

Contact for this press release: A! Ferguson, Executive Assistant 

Phone: 530-467-3752 
539 

FRES.IDENT 

F. Gansler 

PRESIDE!\:T LECT 

J.B. Van Hollen 

Wtsconsin Attorney General 

ViCE PRESIDENT 

Jim Hood 

MiHISSippi AftOrnf')l Gt?neral 

DAS.TPRJS.1Df-NT 

Roy Cooper 

North Carolina Attorney Generoi 

fHCVTIVF DIR~CTOR 

James McPherson 

2030 M Street, NW 

Eighth Floor 

Washington, DC 20036 

Phone: (202) 326-6000 

http://www.naag.org/ 

April 15, 2013 

The Honorable Harry Reid 

Majority Leader 

U.S. Senate 

The Honorable John Boehner 

Speaker of the House of Representatives 

U.S. House of Representatives 

The Honorable Mitch McConnell 

Minority Leader 

U.S. Senate 

The Honorable Nancy Pelosi 

Minority Leader 

U.S. House of Representatives 

Dear Majority Leader Reid, Minority Leader McConnell, Speaker Boehner, 

Minority Leader Pelosi, 

We are a bipartisan group of state attorneys general who recognize that 

immigration policy is primarily a federal responsibility. We are writing to 

convey our support for federal immigration reform that improves our 

immigration system, keeps our communities safe and protects our borders. 

We believe that maintaining the safety and security of the United 

States is the utmost priority. Our immigration system must ensure the 

protection of our communities and the integrity of our national borders. We 

support a law enforcement strategy that focuses on public safety. targets 

serious crime, safeguards witnesses and victims, and considers national 

security implications for porous borders. We further urge a reasonable and 

predictable regulatory environment that considers the interests of, and the 

unintended consequences to businesses, workers and consumers. A broader 

refonn effort should eventually include a way to accurately, reliably and 

afford ably determine who's permitted to work, ensuring an adequate labor 

force for a growing economy. 

Our immigration system must be flexible enough to address the needs 

of businesses in the various states, with state input, while protecting the 

interests of workers. This includes a visa system that is both responsive and 

effective in meeting the demands of our economy. It should also acknowledge 

the beneficial economic contributions immigrants make as workers, tax 

payers, and consumers. 

Our immigration policies, where possible, should prioritize keeping 

families together in order to ensure the most supportive home environment for 

all the children across our country. 

Our immigration policies must provide a sensible means to deal with 

the immigrants who are currently in the country without legal status but are of 

good character, pay taxes and are committed to continuing to contribute to our 

society. 
540 

We look forward to working with you as you move forward in this process and lending 

our voice and expertise as you develop legislation. 

Colorado Attorney General 

~~rt~ Nevada Attorney General 

**Signature Unavailable** 

Afoa Leulumoega Lutu 

American Samoa Attorney General 

Kamala Harris 

California Attorney General 

,/r::;-~:1 ;(. ;' 

/Joseph R. "Beau" Biden III 

Delaware Attorney General 

. ~~,J--- ~n~yR~dat Guam Attorney General 

~~~ Idaho Attorney General 

Indiana Attorney General 

Sincerely. 

~~ Massachusetts Attorney General 

qt,w:ll·~ ~~tah Attorney General 

fo£.. ~Mi.· /} Dustinrvi'~~' 

~omo, Gooo"l 

George Jepsen 

Connecticut Attorney General 

Irvin Nathan 

District of Columbia Attorney General 

Hawaii Attorney General 

Illinois Attorney General 

~~ Tom Miller 

Iowa Attorney General 
541 

v~~ 

etMills 

Louisiana Attorney General ine Attorney General 

!)#,L~ Maryland Attorney Genera I 

Bill Schuette 

Chris Koster 

ssissippi Attorney General Missouri Attorney General 

~£t:l {Jj)_ -~J /S,. 

New Hampshire Atto~ New Mexic61\'ttorney General 

/" /) f l . / /1 I L/::L: 

New 

Eric 

York 

Schneiderman 

Attorney 

' ~ 

General 

Uv(~(,~, W~yne StenehjemU 

North Dakota Attorney General 

Luis Sanchez Betances 

Puerto Rico Attorney General 

/1"J ? .~·;1--- . / c/61A.~ 

Marty J. J~kle~. 

South Dakota Attorney General 

~~~ William H. Sorrell 

Vermont Attorney General 

North Carolina Attorney General 

__ &f~_A_,__ ~7. 

Ellen Rosenblum 

Oregon Attorney General 

Peter Kilm:~in Rhode Island Attorney General 

AT~. ~--·-· Tennessee 

Robert E. Cooper, 

Attorney 

Jr. 

GeJral 

~ 

t:v~~- Vmcen~:r-111 

Virgin Islands Attorney General 
542 

Robert W. Ferguson 

Washington Attorney General 

//~ 

~ 

·P~ Gregory A~Phi!Yips 

Wyoming Attorney General 

Cc: United States Attorney General Eric Holder 

Secretary of Homeland Security Janet Napolitano 
543 

Statement for the Record 

Senate Judiciary Committee 

"The Border Security, Economic Opportunity, and Immigration 

Modernization Act, S.744" 

April 22, 2013 

The National Immigration Forum works to uphold America's tradition as a nation of 

immigrants. The Forum advocates for the value of immigrants and immigration to the 

nation, building support for public policies that reunite families, recognize the 

importance of immigration to our economy and our communities, protect refugees, 

encourage newcomers to become new Americans and promote equal protection under 

the law. 

First and foremost, our hearts and prayers go out to the people of Boston. We are 

extremely grateful for the fast and successful work of federal and local law enforcement 

officials in dealing Vl~th this atrocious attack that threatened all Bostonians. Any attack 

against America is an attack against all Americans regardless of their faith or ethnicity. 

The National Immigration Forum applauds the Committee for holding this hearing on 

the matter of "Comprehensive Immigration Reform Legislation" and urges the 

Committee to take up Senate bill S. 744, the Border Security, Economic Opportunity, 

and Immigration Modernization Act. We applaud the bipartisan Senate working group 

for making progress on much-needed reform of our immigration laws. 

Over the past two years, an alliance of conservative faith, law enforcement and business 

leadership has come together to forge a new consensus on immigrants and America: The 

Bibles, Badges, and Business for Immigration Reform Network, which formally 

launched in February. Their consensus lies in a common belief that all Americans 

prosper when our immigration system is humane, prioritizes public safety and 

empowers the U.S. economy. Since 2011, the National Immigration Forum and 

hundreds of "Bibles, Badges and Business" leaders have sounded the horn for fixing our 

immigration process at national summits in the Mountain West, Southeast and 

Midwest. In December 2012, a year's worth of dialogues led to a National Strategy 

Session and Federal Lobby Day in Washington, D.C. where over 250 leaders, including 

three of today's witnesses, Dr. David Fleming, Senior Pastor Champion Forest Baptist 

Church, Grover Norquist, President, Americans for Tax Reform and Mark Shurtleff, 

Partner, Troutman Sanders LLP communicated their full support for comprehensive 

immigration reform - an event which resulted in more than 6o news stories across the 
544 

(57 'Aith Republican offices). More importantly, faith, law 

enforcement and business leaders from across the country committed to work together 

to urge Congress to pass broad immigration reform in 2013. 

Why the Bibles, Badges and Business Network Supports Comprehensive Immigration 

Reform? 

Faith: 

National evangelical leaders have been on the front lines of America's broken 

immigration system. They have seen far too many church members have their 

families torn apart by a strident immigration system that does not respect the 

fundamental importance of the family. Parents should not be ripped away from 

their children, and no child should be forced to grow up without a parent simply 

because immigration laws are not cognizant of basic Biblical teachings such as 

welcoming the stranger and honoring your father and mother. The Evangelical 

Immigration Table was an unprecedented group formed to outline and submit a 

framework for immigration reform that coincides with Christian teachings. 

• Law Enforcement: 

Nationwide, law enforcement leaders including current and former state 

attorneys general, sheriffs and police chiefs are united in demanding smart 

immigration enforcement that acknowledges the realities of a police officer's 

community role and the importance of that officer's ability to maintain 

community trust. Law enforcement officials do NOT want to become immigration 

officers because it detracts from their ability to prioritize public safety threats. A 

new national immigration strategy must be intelligent and focus on detecting 

transnational smugglers and terrorists. 

Business: 

Business leaders from coast to coast have been frustrated with an immigration 

system that relies on unrealistic and inflexible visa quotas for immigrant workers, 

which force many economic contributors to wait months or years to immigrate. 

The process should be less cumbersome and more in sync \vith a market economy 

that expands and contracts. Immigrant workers are vital for picking crops during 

seasonal harvest as well as working in our engineering and scientific laboratories. 

These business opportunities also provide upstream and do\\nstream jobs for 

other professionals, thus driving the U.S. economy toward success. 
545 

As the Committee discusses reforming our immigration system, we applaud the work of 

four of the committee's members, Senators Richard Durbin, Charles Schumer, Lindsey 

Graham and Jeff Flake, who helped craft the Border Security, Economic Opportunity, 

and Immigration Modernization Act. The bipartisan legislation is a strong start for the 

immigration debate this year. People on both sides of the political spectrum have 

concerns about certain parts of the package. However, that is the nature of compromise: 

:yielding on something we care about to move fonvard on what all of us care about. 

Now that the legislation is introduced, many will work to improve it as it goes through 

the regular order in the Senate, first in Committee and then to the Senate floor. This 

process is right and necessary to ensure that the bill has the broadest possible support. 

This bill is the product of a great deal of discussion and debate and negotiation already. 

We urge this Committee, and all Senators, as they consider this bill, to continually 

remember that the whole of the bill, is much more than just the sum of its parts. It 

strikes a careful balance among its most important pillars: interior enforcement and 

border security, earned legalization and a path to citizenship, needed reforms to our 

current immigration system, and efforts to deal with the current backlog of immigration. 

A singular focus on immigration enforcement will not result in workable solutions to our 

overall immigration system, and may, if too expensive or difficult to achieve, unduly 

delay reform and further politicize border security. 

The National Immigration Forum looks fonvard to continuing this positive discussion 

on how best to move forward with passing broad immigration reform into law this year. 

We cannot let the status quo continue any longer. The time is now for immigration 

reform. 
546 

COMMITTEE ON 

NEW YORK 

CITY BAR 

IMMIGRATION & NATIONALITY LAW 

LENNI B. BE'ISON 

CHAIR 

! 80 WEST BROADWAY 

NEW YORK, 'IY !00!3-2960 

Phone: (2!2) 431-2336 

Fax: (212) 43!-1864 

!bensonf0nyls.edu 

NICOLE E. FElT 

SECRETARY 

7 WORlD TRADE CENTER 

FL 3 

NEW YORK, NY 10007 

Phone: (2!2) 295-6358 

Fax: (2!2) 230-8888 

nicole.feit@wilmerha!e.com 

April 24.2013 

To the Senate Judiciary Committee: 

The New York City Bar Association (the "City Bar") and its Committee on Immigration 

and Nationality Law (the "Committee") applaud the April 16 introduction of the Senate draft 

immigration reform bill entitled "Border Security, Economic Opportunity, and Immigration 

Modernization Act" (S. 744). The City Bar and its Committee have a longstanding commitment 

to support fair and humane immigration policies and to advancing human rights in the United 

States and abroad. In particular, the City Bar advocated for reforms to immigration detention, 

including the right to representation for detained immigrants, in a 2009 report. 1 

Recently, in an April 24, 2013 submission to the Senate Judiciary Committee, the City 

Bar supported the Senate's efforts to increase access to and representation by counsel, and urged 

Congress to expand the legislation to include universal representation of indigent non-citizens 

facing detention or deportation proceedings. 

This letter builds upon that submission. Here, the Committee supports the steps that S. 

744 takes to reduce Department of Homeland Security ("DHS)" over-detention of non-citizens. 

Specifically, we support that S. 744: 

Revises mandatory detention into mandatory "detention or custody"; 

Encourages alternatives to detention, such as tracking bracelets and communitybased supervision; 

Provides impoltant due process protections, such as timely bond hearings; and 

Requires more oversight and transparency over Dl!S detention facilities. 

Active US J08217155v.2 
547 

These are important steps to reduce wmecessary restrictions on liberty and safeguard 

human rights while reducing costs to taxpayers. However, the Committee urges Congress to take 

further steps to reduce detention and ensure due process, including: 

Repealing mandatory "detention or custody" entirely, and requiring 

individualized judge review of each custody decision. with specific, transparent 

criteria and no artificial minimum bond amount; 

• Repealing the "bed quota," which requires 34,000 detainees regardless oft1ight or 

public safety risk; 

Providing appointed counsel to all immigrant detainees and requiring lawyers to 

review DHS custody decisions; and 

• Giving American Bar Association ("ABA") Civil Immigration Detention 

Standards the full force oflaw. 

"Civil" Immigration Detention Should Emplov Less Detention With Fewer Criminal 

Conditions 

The U.S. immigration detention system has exploded into America's largest system of 

incarceration, detaining a record 429,247 individuals in 2011-more than any federal or state 

prison system? This increased detention of immigrants3 has been driven in part by 1996 laws 

requiring mandatory detention pending adjudication of those with prior criminal convictions 

(even minor or from long ago),4 the post-911 I buildup of immigration enforcement,5 and the 

recent expansion of enforcement to state and local police6 through initiatives like Secure 

Communities. Whereas in 1995, the U.S. detained 7,500 people on any one day, the U.S. now 

detains 34,000 in over 250 facilities across America7 This occurs at great cost to American 

taxpayers. The U.S. government spends $2 billion a year on immigration detention-$164 per 

detainee per day-when lesser restrictive alternatives to detention cost $14 per day or less. 8 

Further, this huge detention apparatus, requiring manpower to arrest, process, guard, 

transport, and house large numbers of people, means that essential personnel are diverted from 

other enforcement priorities. Certainly, due process has suffered. Immigration courts. unable to 

keep pace with the expansion, now conduct over 40% of removal hearings by video due to the 

cost of transporting detainees from remote locations. This raises serious issues for study, which 

the bipartisan Administrative Conference of the United States has begun to undertake after 

making recommendations to improve efficiency in immigration removal proceedings 9 

Moreover, even though immigration violations are legally classified as ''civil" 

proceedings, immigration detention facilities are more akin to criminal confinement. 10 Many 

immigrants are held in actualjails. 11 Worse, immigration facilities have been repeatedly 

denounced for substandard conditions, such as the use of excessive force, shackles, solitary 

confinement, poor food and exercise, fifteen minutes of phone access a day, visitation through 

Plexiglass, and inadequate law libraries containing English-only books. 12 As Dora Schriro, 

author of DHS' 2009 report on immigration detention, stated, "in general, criminal inmates fare 

better than do civil [immigration] detainees." 13 All this occurs without appointed counsel, which 

renders it nearly impossible for detainees to litigate their deportation cases. 14 Moreover, 

detainees are routinely transferred to rural facilities far from counsel or family who might 

assist. 15 And it is estimated that one percent of immigration detainees are U.S. citizens, for 

whom no justification to detain exists16 

2 

Active US I 0821715Sv.2 
548 

DHS and its sub-agency Immigration and Customs Enforcement ("'ICE") have engaged in 

meaningful efforts to make immigration detention "truly civil," as ICE Director John Morton 

stated. 17 We applaud this bill's extension of those steps. However, if the term "civil'' detention 

means anything, it is that ICE should detain not just better, but less. 18 Our recommendations 

further that goal. 

The City Bar Supports this Bill Because It Takes Steps to Reduce Over-Detention of 

Immigrants While Facilitating Increased Government Efficiency 

First, we applaud the bill's steps to scale back mandatory immigration detention without 

bail. S. 744 revises mandatory detention into mandatory ''detention or custody"-now including 

electronic tracking ankle bracelets-based on an individualized DHS determination. 19 This may. 

if DHS allows it, let thousands avoid unnecessary incarceration and remain with families 

pending their deportation hearing, for which they may more meaningfully prepare and 

participate. 

We urge the Senate to go further and wholly repeal mandatory "detention or custody" so 

that DHS only detains those who pose a flight or public safety risk. There is no reason why 

immigration judges cannot determine flight or public safety risk as judges do every day in 

criminal courts. Yet the bill still excepts mandatory detention or custody from immigration court 

review. 20 Moreover, the bill expands the categories of criminal offenses that may subject one to 

immigration mandatory detention or custody (already including minor offenses like drug 

possession or subway turnstile jumping).21 In addition, the bill retains the unfairness of 

retroactively subjecting immigrants to detention and custody for criminal offenses that had no 

immigration consequences when committed. The bill also retains the extremely high burden on 

those challenging mandatory "detention or custody"-i.e. that the Government only needs any 

non-frivolous legal rationale to detainn Repealing mandatory "detention or custody'' would 

eliminate these concerns. 

Second, we applaud the bill's steps to reduce over-detention by making detention the 

exception, not the rule, and encouraging alternatives to detention ("A TD"). Importantly, except 

for mandatory detainees, DHS must now demonstrate to an immigration judge that "no 

conditions, including ... alternatives to detention" will "reasonably assure'' appearance at 

hearings and public safety 23 The bill further requires DHS to establish alternatives to detention 

that provide a "continuum of supervision ... including community support,"24 and incorporate 

case management scrvices."25 DHS is also required to review the level of supervision on a 

monthly basis. 26 And, positively, the bill may reduce over-restriction as well as over-detention. 

The bill requires alternatives to detention not to be used when bail or simple release would 

suffice to ensure appearance and public safety,27 more like criminal court practices28 

We also support the bill's requirement that DHS establish "community-based supervision 

programs" that screen detainees and provide appearance assistance and community-based 

supervision.29 These programs have been shown to ensure appearance at hearings without risk to 

public safety, at a fraction of the cost. While detention costs taxpayers $166/day, alternatives to 

detention cost $14/day or less.30 Meanwhile, DHS's pilot programs for alternatives to detention 

achieved an appearance rate of 94%, far beyond its target rate and that of most criminal release 

programs31 

That said, Congress should repeal the "bed quota," which requires DHS to detain 34,000 

immigrants at any one time, regardless of risk. 32 Otherwise, the bill's other reforn1s encouraging 

3 Active US I 08217155v.2 
549 

alternatives to detention will be frustrated, and DHS will continue to unnecessarily detain 

immigrants who pose little risk at great taxpayer cost. 

Also, Congress should repeal the $1,500 minimum amount for individual immigration 

bond settings, which subjects immigrants to far greater bond settings than criminal pretrial 

detainees even though immigrants pose less risk33 Indeed, 80% of New York criminal arrestees 

receive bond settings of $I,OOO or less 34 Moreover, Congress should provide clear criteria 

regarding risk of flight or risk to public safety to DHS officers and immigration court judges, 

such as the eight delineated factors a New York criminal judge considers when setting bail.)j 

Additionally, Congress should make transparent ICE's new risk assessment tool which 

will play a key role in individual detention determinations 36 Risk assessment has promise to 

reduce over-detention, and provide empirical evidence that detainees pose little risk, thus further 

supporting reform of detention laws.37 As of now, however, ICE appears to be making 

computerized determinations regarding immigrants' liberty based on a secret algorithm with no 

opportunity for immigrants to change or review information. Human rights advocates previously 

criticized the tool for being weighted toward over-detention38 If this continues, legal reforms to 

reduce detention may be for naught. Congress should require immediate disclosure of!CE's risk 

assessment criteria, and require that the risk assessment summary, currently placed in DHS' file 

on an immigrant (the "A-File"), be reviewed in immigration court. 

The City Bar Supports this Bill Because It Takes Steps to Improve Due Process for 

Immigrant Detainees 

Additionally, we applaud the bill's steps to improve due process for immigrant detainees. 

in line with American values and widespread public support. The bill requires DHS to 

"immediately" determine whether an immigrant is detained or released, inform the immigrant of 

his rights to a bond hearing, and serve a copy of the detention decision, with reasons, on the 

immigrant within 72 hours 39 The bill then provides for a bond hearing before an immigration 

judge within 72 hours of service of the custody detem1ination, and no later than one week from 

arrest.40 Nine in ten Americans, of party affiliation, agree there should be a "time limit on how 

long someone can be held in jail for immigration violations before they see ajudgc."41 

Although these basic due process protections are welcome and long-overdue, Congress 

should go further and provide counsel to all immigrant detainees. 42 As we set forth in our 

companion letter, under fundamental American fairness and due process values, this country 

provides representation for indigents when liberty and livelihood are at stakc43 Both are at stake 

in deportation proceedings involving detention. Immigration judge Paul Grussendorftestified, 

"It is un-American to detain someone, send them to a remote facility where they have no contact 

with family, place them in legal proceedings where they are often unable to comprehend, and not 

to provide counsel for them."44 App_ointed counsel will also increase court efficiency and in 

tum, reduce unnecessary detention. ' 

Also, Congress should require DHS lawyers, rather than DHS officer non-lawyers, to 

review and render detention decisions and charging decisions46 Non-lawyers should not have 

the authority to jail immigrants for months or years based on incredibly complex legal 

determinations. 47 

4 

Active US J 082 J 71 55v.2 
550 

The City Bar Supports this Bill Because It Takes Steps to Improve Detention Conditions 

and Oversight 

We applaud the bill's steps to provide long-needed oversight and transparency to 

immigration detention. The bill requires DHS to make all of its contracts with detention 

facilities contingent on compliance with ICE's detention standards, and requires the imposition 

of financial penalties on any facility that violates those standards.48 Also, the bill requires DHS 

to report to Congress yearly on facility oversight, requires DHS to make all detention contracts, 

evaluations, and reviews public, and further makes those contracts, evaluations, and reviews 

subject to Freedom of Information Act requests, even regarding private prison corporations 49 

That said, Congress should examine detention standards more closely and give them 

binding force. Congress should thoroughly examine the American Bar Association model Civil 

Immigration Detention Standards, and consider adopting them into law, rather than the ICE 

standards which remain modeled after criminal jail standards 5° Moreover, whichever detention 

standards Congress adopts should be made binding with full force of law, as are Bureau of 

Prisons regulations, so as to provide legal relief to immigrant detainees who are mistreated. 51 

Lastly, Congress should require DHS to develop visitation policies for detained clients 

that are consistent, well-publicized, and less restrictive of access to counsel. Detention facilities 

have conflicting visitation standards, which make it difficult for representatives to access their 

clients. Some prohibit visitation unless lawyers submit to a criminal background check days in 

advance 5 2 Congress should direct DHS to standardize its provisions for representatives to visit 

clients in detention facilities, and ICE should create online registries of representatives, as 

immigration courts are doing, to ease access 53 ICE should also publicize policies regarding 

access to facilities, as immigration courts have done with pro bono information in each district54 

We thank the Senate Judiciary Committee for its consideration of these comments and 

recommendations. 

Respectfully submitted, 

!

(), . . . -;,L)_f_0fc.l''-

Prof. Lenni Benson 

Chair 

1 See Association of the Bar of the City of New York, Committee on Immigration & Nationality Law, Report on the 

Right to Counsel for Detained Individuals in Removal Proceedings (August 2009) [hereinafter "City Bar, Right to 

Counset'], available at http://www.nycbar.org/pdf/report/uploads'2007!793-ReportontheRighttoCounsel.pdf. 

2 John Simanski and Lesley M. Sapp, Department ofllomeland Security, Office of Immigration Statistics. 

Immigration Eriforcement Actions: 201 I 4 (September 2012), available at 

http://www.dhs.gov/sites/default/files/publications/immigration-statistics.'enforcement ar 20 I l.pdf; see also Dora 

Schriro, Improving Conditions ofConjinementfor Criminal Inmates and Immigrant Detainees (''Improving 

Conditions"), 47 Am. Crim. L. Rev. 1441, 1446 (2010). 

3 See generally Ani! Kalhan, Rethinking Immigration Detention, !10 Colum. L. Rev. Sidcbar42, 44-46 (20!0). 4 See 8 U.S.C. § !226(c). 

5 ActiveUS 108217155v.2 
551 

5 Ted Hesson, Five Ways Immigration System Changed After 9/11, ABC News/Univision (Sept. II, 2012), available 

at http://abcnews.go.com/ ABC Unlvision!N ews/ways-irnm i gration-system-changed-. 

911/story?id=17231590#.UXngGLWR9dO. 

6 See generally Lenni B. Benson, As Old as the Hills: Detention and immigration (''As Old as the Hills"), 5 

Intercultural Hum. Rts. L. Rev. II, 11-13 (20 1 0). 

7 The release of criminal detainees by U.S. immigration and Customs Enforcement: Pol h.)' or Politics?, Hearing 

Before the H. Comm. On the Judiciary, 113'" Cong. (20 13) (Statement of John Morton) (20 13) (''Mm1on, Written 

Testimony"), available at http;//www.dhs.gov/news/20 13/03/19/written-testimonv-us-immigration-and-customsenforcement-director-lohn-morton-house; see also Dora Schriro, U.S. Dep't of Homeland Security, lmmigrution 

Detention Overview and Recommendations 6 (2009) ("'Schriro, Immigration Detention Oven,iew and 

Recommendations ''), available at http://www. ice .gov/ doc I ib/abouti o ffi cesi od ppipdfiice-detention-rpt. pdf 

8 National Immigration Forum, The Math of Immigration Detention 1 (August 2011), available at 

http://www.immigrationforum.org/images/uploads/MathoflmmigrationDetention.pdf; Building an Immigration 

System Worthy~~ American Values, Hearing Before the S. Comm. On the Judicimy, IIJ'h Cong. 19 (2013) 

(Statement of Ahilan T. Arulanantham, ACLU), available at http://www.judiciary.senate.govipdf!3-20-

13 Arulanantham T estimony.pdf. 

9 Two of the recommendations adopted at the Administrative Conference of the United States involved video 

teleconferencing. See Administrative Conference of the United States, Administrative 

Recommendations 2012-13 16-17 (June 20 12), available at !ill&';;:!~J!S:lli,,gQ'L.:iil~~~!!ll'lli~:JQS:lli!lli!!.scii2.L2: 

:LQQ..['. 

10 Schriro, Immigration Detention Overview and Recomml!.ndutions at 2, 4. 

II fd. 

12 Inter-American Commission on Human Rights, Report on Immigration in the United States: Detention am) Due 

Process 117 (20 I 0), available at http://www.oas.org/en/iachrimigrants/docsipdf!Migrants20 ll.pdf; Amnesty 

International USA, Jailed Without Justice-Immigration Detention in the USA (2009), available at 

http:l/www.amnestvusa.orgipdfs/JailedWithoutJustice.pdf; see also Nat'! Immigration Law Ctr., A Broken System: 

Confidential Reports Reveal Failures in U.S. !mmigron/ Detention Centers (2009), ami/able at 

www.nilc.org/document.html?id=9; Human Rights First, Jails and Jumpsuits: Transforming the U.S. Immigration 

Detention System-A Two-Year Review (2011), available at http://www.humanrightsfirst.org/vvpcontent/up I oads/pd f/H RF -J ai Is-and-Jumpsuits-report. pdf. 

13 Schriro, Improving Conditions at 1445. 

14 City Bar, Right to Counsel at 7. 

15 City Bar, Right to Counsel at 7; New York Immigrant Representation Study, Accessing Justice: The Avai/ahility 

and Adequacy of Counsel in Immigration Proceedings, 33 Cardozo L. Rev. 357,363 (2011), available at 

http://www.cardozolawreview.comicontent/denovo/NYIRS Repor!J2<:lf. 

16 William Finnegan, The Deportation Machine, THE NEW YORKER 24 (Apr. 29, 20 13); Jacqueline Stevens, U.S. 

Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens, 18 Va. J. Soc. Pol'y & L. 606, 622 

(2011). 

17 Nina Bernstein, U.S. to Reform Policy on Detention for Immigrants, N.Y. TIMES, Aug. 5, 20091 m'Cii!able at 

http://www.nytimes.com/2009108/06/us 1politics/06detain.html. 

18 See Benson, As Old as the Hills at 13-17 (20 1 0): Mark Noferi, New ABA Civil Immigration Detention Standards: 

Does "Civil" Mean Beller Detention Or Less Detention>, CRIMMIGRATION.COM (Aug. 28, 2012). available a/ 

http:// crim migration .com/2 0 l 2/0 8/2 8/new-aba-ci vi 1-immigration-detention -standards-does-c i vi 1-mean-hent:rdetention-or-less-detention.aspx. 

19 Sec. 3715(c), (d), sec. 3717 (a) (creating new INA section 236(1)(5)); see Rutgers School of Law-Newark 

Immigrant Rights Clinic, Freed but Not Free.· A Report Examining the Current Use ofAlternatives to Immigration 

Detention24-25 (July 20 12) (arguing that INA § 236(c) should be interpreted to allow electronic monitoring), 

available at http://www.law.newark.rutgers.edu/filcs:TreedbutnotFree.pdf. The new bill excepts suspected terrorists 

certified by the Attorney General under INA§ 236A (8 U.S.C. § 1226A). 

20 Sec. 37I7(a) (creating new INA section 236 (1)(5) ("Except for aliens that the immigration judge has determined 

are deportable as described in section 236A and 236(c), the immigration judge shall review the custody 

determination de novo .... For aliens detained under 236(c), the immigration judge !!1!!1'. review the custody 

determination i[the Secretary agrees ... "))(emphases ours). 

6 ActiveUS 108217155v.2 
552 

21 See Crimmigration Provisions ofNew Immigration Bill, CRJMMIGRATION.COM (Apr. 18, 20 13). 

http:!/crimmigration,com/20 13/04/ 18/crimm igration-provisions-of-immigration-bil J.aspx. 

22 See, e.g. Gayle v. Napolitano, Civ. A. No. 12-2806 (D.NJ. filed May I, 2012), available at 

http://www.aclttorg/immigrants-rights/gayle-v-napolitano. 

23 Sec. 3717(a), creating new INA section 236 (1)(5). 

24 Sec. 3715(b). 

25 Sec. 3715(a). 

26 Sec. 3715(c); see also Rutgers School of Law-Newark, Freed but Not Free at 12-14 (inconsistent and confiicting 

guidance for review of alternatives to detention leads to arbitrary and inconsistent restrictions), 

27 Sec. 3715(c). 

28 NYU School of Law Immigrant Rights Clinic eta!., Insecure Communities, Devastated Families.· New Data on 

Immigrant Detention and Deportation Practices in New York City, 8-11 (July 23, 2012) (in New York, while 80% of 

ICE detainees were denied bail, 68% of pretrial criminal defendant were released on recognizance with no bail at 

all), available at hrtp://immi~rrantdefenseprolect.org/\\p~content/uploads/20 12/07/NYC~FOJA-Report-20 12-

FlNALpdf. 

29 Sec. 3715(b); see also Demore v. Kim, 538 U.S. 510, 565 (2003) (Souter, J., dissenting). 

30 National Immigration Forum, The Math of Immigration Deteltlion 1 (Aug. 201 I), available at 

http://www.immigrationforum.org/imaQ:.es/uploads/MathoflmmlgrationDetention.pdf. 

31 Arulanantham at 26-27; Ophelia Field and Alice Edwards, UN High Commissioner for Refugees, Alternatives tv 

Detention of Asylum Seekers and Refi<gees POLAS/2006103 24 (April 2006), available at 

http://www.refworld.orgidocid/4472e8b84.html ("In the crimina! justice field. compliance figures for felony 

defendants who are released under non-custodial measures before trial usually range from 40-70%. This study, 

therefore, assumes that any alternative measure applied to asylum seekers to ensure their appearance that achieves a 

success rate over 80% can be considered 'effective'.") 

12 Arulanantham at 19. 

"8 U.S.C. § 1226(a)(2)(A) ("the Attomey General .. may release the alien on ... bond of at least $1.500 ... "). 

"See NYU, Insecure Communities at II (for New York ICE arrestees, 75% of bond settings are $5,000 or more, 

and 35% are $10,000 or more. 55% of ICE arrestees were unable to pay, and one in five of those have children. 

Conversely, for New York criminal pretrial detainees, 80% of bond settings are $1,000 and below.). 

35 See N.Y. Crim. Proc. Law§ 510.30. When making a bond determination, a criminal court "must, on the basis of 

available information, consider and take into account: (i) The principal's character, reputation, habits and mental 

condition; (ii) His employment and financial resources: and (iii) His family ties and the length of his residence if an) 

in the community; and (iv) His criminal record if any; and (v) His record of previous adjudication as a juvenile 

dellnquent[]; and (vi) His previous record if any in responding to cout1 appearances when required or \\'ith respect to 

flight to avoid criminal prosecution; and (vii) If he is a defendant, the weight of the evidence against him in the 

pending criminal action and any other factor indicating probability or improbability of conviction; or. in the case of 

an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and (viii) If he is a 

defendant, the sentence which may be or has been imposed upon conviction ... See generally NYU. Insecure 

Communities at 8-9. 

36 On March 19, 2013, ICE Director John Morton confirmed to Congress that ICE had deployed nationwide its new 

automated "Risk Classification Assessment" tooL Morton, Written Testimony (Mar. 19, 2013 ), supra note 7. 

37 See Robert Koulish and Mark Noferi, Unlocking immigrant detention reform, BAL TJ~10RE SUN, Feb. 20, 2013, 

available at http:l/www.baltimoresun.com/newslopinion!oped/bs-ed-immigrant-detention20130220,0,5653483.storv. 

38 Lutheran Immigrant Refugee Service, Unlocking Liberty 11, 21 (20 11 ), available at http:!·w\1 w.lirs.omiwpcontent!uploads/2012/05/RPTUNLOCKINGLIBERTY.pdf, citing Alice Edwards, UN High Commissioner for 

Refugees, Back to Basics: The Right to Liberty and Security ofl'erson and 'Alternatives to Detention· of Refugees, 

Asylum-Seekers, Stateless Persons and Other Migrants 81 (201 1) (''the US risk assessment tool. .. appears heavily 

weighted in favour of detention~'), available at http::''/\'Q~~w.ref~yorld.orgicgi-binitexis:'vtx.·nnnain?docid=4dc935fd~. 

39 Sec. 3717(a), creating new INA sections 236(1)(2), (7). 

40 Sec. 3717(a), creating new INA sections 236 (1)(3), (4). A bond hearing was not previously required. See Mark 

Noferi, Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained 

Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L 63,83 & n.l03 (2012), citing 8 C.F.R. 

7 

ActiveUS 108217155v.2 
553 

§236.1 (g)( I) (immigration official ·'may" issue an 1-286 Notice of Custody detennination ·'at any time .. up to the 

time removal proceedings are completed''). 

41 Belden Russonello Strategists LLC, American attitudes on immigration l~'orker protections. due process, 

and border enforcement 3 (April 20 13). available 

"

2 City Bar, Right to Counsel, supra note I; The Constitution Project, Recommendations for RefiJrming Our 

Immigration Detention System and Promoting Access to Counsel in Immigration Proct!.edings 8 (2009), available at 

http://www.constitutionprojectonr/pdf/359.pdf 

43 Noferi. Cascading Constitutional Deprivation. 18 Mich. J. Race & L. at 71 & n.30. I 01-05. 

44 Building an Immigration System Worthy ofAmerican Values, Hearing Before the S. Comm. On the Judiciary, 

113'" Con g. 8 (20 13) (Statement of Paul Grussendorf). available at http:l/www.judiciary.senatc.gov/pdt)3-20-

13GrussendorfTestimony .pdf. 

45 Lenni Benson and Russell \Vheeler, Enhancing Quality and Timeliness in Immigration Removal Adjudication 59. 

66-67, 80-82 (20 12), available at http://www,acus.gov/sites/detault/liles/Enhancino-Quality-and-Timeliness-inImmigration-Removai-Adjudication-Finai-June-720 12.pdt; City Bar. Right to Counsel at 7-8. 

46 Currently, non-lawyers are allowed to make such determinations. See Benson and '-"'heeler, Enhancing Qua!ir;,· 

and Timeliness in Immigration Removal Adjudication at 37; Noferi, Cascading Constitutional DepriFation, 18 Mich. 

J. Race & L. at 84; American Bar Association Commission On Immigration, Rqforming The Immigration System, 

Proposals To Promote Independence, Fairnes:;, Efficiency, And Professionalism In The Acfjudication Of Removal 

Cases 1-49 (20 I 0), availabl< at 

http://www .american bar .org/ content/dam/aba!m igrated/I mm igration/Pu bl ic Documents/ aba __ comp 1 ete _ full_report. aut 

hcheckdam.pdf. 

47 These determinations, such as whether a prior conviction is an ''aggravated felony'' or "crime involving moral 

turpitude," are based on interlocking state criminal and federal immigration laws. Analysis may involve 

detennining whether the correct statutory test is a ''strict" or ••modified categorical approach," depending on whether 

a criminal statute is "divisible' and whether the immigration statute is "generic'' or ·'specific." See Noferi, 

Cascading Constitutional Deprivation, 18 Mich. J. Race & L. at 89-95. 

48 See generally sec. 3716. 

49 Sec. 3716 (c)(3). (d)(! )(D), (e). 

50 ABA Civil Immigration Detention Standards (2012). available at 

http://www.americanbar.org/content/dam/abaladministrativelimmigration/abaimmdctstds.authcheckdam.pdf: 

compare U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 201 l 

(Feb. 2012). available at http:f/www.ice.gov/detention-standards/2011/. 

"Schriro, Improving Conditions, 47 Am. Crim. L. Rev. at 1446. 1451 (''The ultimate form of enforcement is 

regulation that also affords opportunity for relief. . . Failure to comply with regulation is a basis for relief. Failure 

to comply with elective standards is not."). 

52 We base this information on interviews by our committee members of detention facility staff in the New York and 

New Jersey area. 

53 See Daniel Kowalski, EO!R Final Rule: Registry for Altorneys and Representatives (Apr. l. 2013 ), availabit! at 

http;/ /www .lex isnexis.com/com m un ity/imm igration-la \V!b logs/inside/arch i vc/20 I 3/04/0 1 /eoir-fi na 1-ru le-regi stryfor-attomeys-and-representatives.aspx; 78 Fed. Reg. 19400-01 (Apr. 1. 20 13). available at 

http://www.gpo.gov/fdsys/pkg/FR -2013-04-0 1/pdf/20 13-07526.pdf. 

54 See Department of Justice, Free Legal Sen'ices Providers, available at 

http:!/www.justice.gov/eoir/probono/states.htm. 

8 Activel!S 108217155v.2 
554 

COMMITTEE ON 

IMMIGRATION & NATIONALITY LAW 

LENNI B BENSON 

CIIAIH. 

180\VES-! BROADWAY 

Nt:WYORK, NY 10013-2960 

Phone: (212) 431-2336 

Fax: (212)431-1864 

lbenson@nyls,edu 

NICOLE E. FElT 

Sf:CRETAR) 

7 WORLD TRADE CENTER 

250 GREE!'<W!CH STREET 

NEW YORK, NY 10007 

Phone: (212) 295-6358 

Fax: (212) 230-8888 

nico!e,feitti£:wilmerhale,com 

April24, 2013 

To the Senate Judiciary Committee, 

NEW YORK 

CITY BAR 

The New York City Bar Association (the "City Bar") and its Committee on Immigration 

and Nationality Law (the ··committee'') applaud the Aprill6 introduction of the Senate draft 

immigration reform bill entitled "Border Security, Economic Opportunity. and Immigration 

Modernization Act" (S. 744). The City Bar and the Committee have a longstanding commitment 

to support fair and humane immigration policies and to advancing human rights in the United 

States and abroad. In particular, we have actively advocated for due process in immigration 

courts, including the right to representation for detained immigrants.' 

As an initial matter, we believe that this bill is a strong and serious step forward. We are 

pleased that the bill contemplates the right to free counsel for certain particularly vulnerable 

groups. However, for the reasons set forth below, we urge the Senate to adopt provisions to 

provide free counsel to all indigent individuals in deportation proceedings, as well as certain 

other narrow circumstances as outlined below. 

The City Bar Supports this Bill Because The Right to Counsel Advances American Due 

Process Values 

S. 744 aligns with fundamental American fairness and due process values that provide 

representation for indigents when liberty and livelihood are at stake2 It is an "obvious truth," as 

the Supreme Court stated 50 years ago, that "any person haled into court, who is too poor to hire 

a lawyer, cannot be assured a fair trial unless counsel is provided for him.''3 According to a 

recent poll, 76 percent of Americans, including 87 percent of Democrats and 67 percent of 
555 

Republicans, support ensuring that "immigrants can have legal representation if they face 

deportation." 4 

The right to counsel at government expense should be guaranteed for any indigent noncitizen facing deportation (also known as "removal"), especially if he or she is jailed in detention 

during the proceedings. Deportation, although technically "civil," involves much higher stakes 

than the typical civil proceeding-banishment from family, friends, livelihood. and property, or 

"all that makes life worth Jiving," as the Supreme Court said5 For these reasons, the right to 

counsel in criminal cases already includes immigration advice, since deportation can be ·'the 

most important part" of a criminal conviction to an immigrant6 

Indeed, deportation may send long-time immigrants to a "homeland" to which they have 

no ties and where they may be persecuted. 7 Deportation can also significantly impact other Jives 

in America. Immigrants who own businesses---and seventeen percent of small businesses are 

immigrant owned8

- may have to close the business, liquidate assets, and fire workers, resulting 

in significant economic loss. Families are abandoned, more than economically. In 2011,5,000 

children of deported U.S. parents were in foster care, causing untold human and social cost. 9 

When the stakes are this high, it has become common to provide appointed counsel. whether in 

civil or criminal proceedings. The vast majority of states provide appointed counsel in 

proceedings to terminate parental rights and in abuse or neglect proceedingsiO 

Moreover, immigration law is incredibly difficult to understand without a lawyer. As 

Justice Alito stated, "[N]othing is ever simple with immigration law.'' 11 The Immigration and 

Nationality Act has sixteen categories for grounds of removal alone, all with parts, subparts. 

exceptions, and waivers, each with multiple elements. 12 Qualifying tor relief is even more 

complex. Without a lawyer, individuals (who also face language and cultural barriers), are 

unlikely to even know what facts will help them make their case, Jet alone argue it in court based 

on complex statutory analysis. 13 

On top of all this, detention during immigration proceedings exacerbates the stakes and 

the need for counsel. Detention- being locked up in jail- impinges personal libenies in a 

manner akin to criminal proceedings. 14 For this reason, the federal government already appoints 

counsel to everyone else it detains, whether criminally, civilly, or militarily, including convicted 

sex offenders facing civil commitment, and suspected terrorists facing military detention. 15 The 

Supreme Court has required appointed counsel for civil juvenile detention and civil psychiatric 

commitment. 16 

An immigration detainee may be held in a detention facility for 2 to 4 weeks before 

seeing an immigration judge for the first time. 17 Detainees thus face a Catch-22: they typically 

cannot escape detention by winning a bond hearing without the assistance of counsel, and they 

typically cannot find counsel, given the limited access to communication and information, until 

they escape detention. If a detainee decides to seek relief, he or she may be held for months at a 

time before receiving an adjudication of his or her immigration status. 18 Transfer to rural 

detention facilities compounds the problem of inadequate access, making it nearly impossible to 

collect and present favorable evidence at a deportation hearing. 19 

For these reasons, a New York study led by the Honorable Robert Katzmann, a Second 

Circuit Court of Appeals Judge, found that a stunning 97 percent of non-represented detainees 

lost their derortation cases, while 74 percent of non-detained, represented non-citizens ultimately 

succeeded2 As immigration judge Paul Grussendorftestified, ''It is un-American to detain 

someone, send them to a remote facility where they have no contact with family, place them in 

legal proceedings where they are often unable to comprehend, and not to provide counsel for 

2 
556 

them." 21 Congress should, at the very least, provide appointed counsel to detained immigrants 

in removal proceedings. 

Lastly, there is no citizenship test for counsel in America. When the U.S. or its states 

provide counsel, we provide it to citizens and non-citizens alike- whether in criminal, civil, or 

military proceedings. Put another way, the familiar words "You have the right to an attorney If 

you cannot q!Jord an allorney, one will be providedfor you" do not include "only if you are a 

citizen." We provide appointed counsel because procedural safeguards reflect American values 

of fairness and due process, regardless of the defendant's identity. 

The City Bar Supports this Bill Because Providing a Right to Counsel Reduces 

Government Costs 

In addition to creating a system more in step with American values, providing counsel to 

indigent non-citizens saves the government money by I) preventing unnecessary court 

proceedings, 2) reducing the amount oftime non-citizens spend in detention, and 3) relieving the 

burden of government support to disrupted families. 

First, having parties represented by counsel increases efficiency by preventing 

unnecessary court proceedings and continuances. For example, existing Legal Orientation 

Programs ("LOPs") for detainees, in which advice is provided without full representation, has 

shortened case processing times for detainees by 13 days on average. 22 Applicants learn to better 

articulate what reliefthey are entitled to and move through the system more quickly, 23 while 

judges are relieved of the time and burden required to guide uncounseled respondents. 24 

Although we applaud the bill's expansion of this program into the formal establishment of a 

Legal Access Program (see Section 3503), full representation would likely increase efficiency 

even further. Having lawyers on both sides reduces the length of overall proceedings by 

allowing negotiations to take place outside of court and reducing the need to grant expensive 

continuances to provide respondents time to find counsel25 or complete an application26 T vm 

competent, opposing laV~>yers also better educate the court with the best information available, 

building a more complete and accurate record and preserving issues for review. 21 Fmthermore, 

counsel, as officers of the court and subject to the professional rules of conduct, can help prevent 

fraud committed upon non-citizens by unscrupulous notaries peddling dubious legal ad vice at 

high cost.28 

Second, these increased efficiencies lead to reduced costs of detention. With counseL 

non-citizens eligible for bond are more likely to gain release and, rather than sitting in taxsupported detention, continue working and supporting their families while awaiting a hearing29 

Non-citizens represented by counsel are also more likely to appear for their appointed court 

dates30 Others with no hope of relief can be counseled to acceft removal rather than stay in 

detention, reducing the need for expensive court proceedings. 3 

Third, reduced detention and deportation of those with valid claims to lawful status saves 

significant human and social costs resulting from family disruption. Without counsel, noncitizens are much more likely to be removed, even if entitled to relief because of family ties or 

humanitarian protection.32 Such non-citizens often leave behind U.S. citizen children to grow up 

in foster care at government expense-an expensive and heartbreaking result. 33 

We recommend the creation of an independent immigration defender's office, modeled 

on the federal public defender office, with direct granting authority that would provide the 

Executive Office for Immigration Review with an independent stream of income 34 

Independence and direct granting authority would allow money to go directly into the program, 

thereby providing a more efficient use of federal money, 

3 
557 

The Citv Bar Supports the Right to Counsel Under Section 3502 

We applaud the work of the bipartisan committee that drafted S. 744, particularly 

Sections 3502 and 3503, in expanding access to legal advice for non-citizens facing immigration 

proceedings. These provisions both advance American ideals of justice and represent practical, 

cost-effective policy. We also support the bill's authorization of funding for "LOPs" from the 

Comprehensive Immigration Reform Trust Fund and its mandate that LOPs be made available to 

all immigration detainees within five days of arrival into custody. The expansion of LOPs is a 

welcome first step in creating a fairer and more efficient immigration system. 

However, LOPs are not a substitute for full legal representation. Counsel is required to 

make the immigration system more efficient and fair. The Committee therefore urges the Senate 

to provide appointed counsel to all indigent non-citizens in removal proceedings (including 

expedited removal). Such non-citizens must at a minimum include indigent Lawful Permanent 

Residents ("LPRs"), those who have been determined to be children (whether unaccompanied or 

not), persons with serious mental disabilities (as already contemplated by Sec. 3502), and 

individuals seeking relief under humanitarian provisions such as asylum, the Trafficking Victims 

Protection Reauthorization Act ('TVPRA") or the Violence Against Women Act ('"VA WA''). 

These objective standards better correspond to American values, are cost-effective and 

simple to apply (unlike open-ended language for the "particularly vulnerable''), and provide 

predictable guideposts for budgetary planning. Indeed, we anticipate that a determination of 

"vulnerability" will be onerous to evaluate, and that an "ad hoc review" will take unnecessary 

time and resources and potentially clog the courts with litigation."35 Accordingly, LOPs should 

screen more broadly for these objective standards and recommend all such individuals for 

appointed counsel. At the very least, LOPs should have the discretion to recommend those 

indigent individuals for appointed counsel who have a prima facie meritorious case. a 

particularly complicated matter, or otherwise present special circumstances. 

Expedited Removal. We urge appointment of counsel for individuals in expedited 

removal hearings. A growing number of United States citizens are being erroneously subjected 

to expedited removal, and there is no readily accessible mechanism to correct the error36 The 

consequences of a wrongful expedited removal are dire citizens and non-citizens who are 

erroneously removed face a minimum of a five year bar to reentry after removal,37 and if the 

government alleges misrepresentation or fraud as the basis of the expedited removal, removed 

individuals face a lifetime bar to entry38 Therefore. we believe that it is imperative that these 

individuals are afforded counsel, so as to ensure that they receive a "fair and efficient 

adjudication," just like the vulnerable classes of individuals afforded the same in Section 

3502(c). 

Lawful Permanent Residents. All indigent LPRs should have a right to counsel, 

because they have a deep stake in American society that the government has recognized by 

granting them LPR status. That stake entitles an LPR to stronger due process protections, 

including a right to counsel if the individual is indigent and facing removal or detention39 

Granting LPRs such a right is not only cost-effective, as described above, but critical to the due 

process values at the heart of American ideals of justice. 

Children. We urge that counsel be provided for those who have been determined to be 

children during the initiation of removal proceedings (i.e., non-citizens under the age of 21 ). 

because they are particularly vulnerable, even if they are not unaccompanied.'° Children are 

4 
558 

provided court-appointed advocates in other judicial proceedings related to their well-being and 

liberty interests such as child welfare41 and juvenile delinquencl2 matters. Children are in 

particular need of appointed counsel in the immigration context given their more limited 

knowledge of the law and avenues for relief, lack of ability to contact and hire counsel for 

themselves, and greater potential for being victims of traft1cking and other forms of abuse and 

neglect or abandonment. 43 In New York City, children's cases now represent 9-12 percent of the 

Immigration Court's docket, with many of these children being identified for immigration relief 

but unrepresented. 44 

Serious Mental Disabilities. Section 3502 appropriately includes the right to appointed 

counsel for non-citizens with "serious mental disabilities." Procedures for implementing this new 

policy were recently outlined by the Department of Justice and the Department of Homeland 

Security.45 The City Bar supports appointed counsel for this group of particularly vulnerable 

persons. 

Humanitarian Claims. Finally, claimants under humanitarian provisions, such as 

asylum, trafficking and relief under the Violence Against Women Act, should be given a right to 

counsel. These individuals are often traumatized and need legal assistance to help articulate their 

claims and achieve safety and protection. 

We are encouraged by the provision in Section 3407 allowing applicants for refugee 

status to be represented at a refugee interview, albeit at no expense to the Government. We 

recommend that the phrase "at no expense to the Government" be deleted from this section, as it 

has proven problematic in other parts of the INA and is being removed by this bill as a result. 

We further applaud the change to asylum law proposed in Section 3404 of the bill, \Vhich 

authorizes US CIS Asylum Division officers to conduct non-adversarial interviews of asylumseekers identified at or near a U.S. border after such individuals have successfully passed a 

"credible fear" screening interview. Currently, individuals passing credible fear interview·s move 

on to full adversarial hearings in the immigration courts. 

We urge, however, that asylum seekers be appointed counsel prior to their credible fear 

determinations, or at least be provided an LOP presentation, so that they fully understand the 

international protections provided by the United States and can best prepare their claims. 

Asylees face particular hardships, including extremely dangerous conditions in the home countr) 

trom which they have fled, and an erroneous adverse credible fear determination may put them 

back in danger, potentially of bodily harn146 Additionally, pending a credible fear 

determination, individuals seeking asylum arc subject to mandatory detention, which can be 

psychologically damaging for an already fragile population.47 Passing a credible fear interview 

within days of fleeing one's home country and while in detention can be extremely difficult and 

trying for an asylum seeker. Consequently, detention should not be mandatory for these 

individuals, and counsel should be appointed to help them seek release on bond. Therefore, we 

believe that Section 3404 should also include a provision securing the right to counsel for asylum 

seekers prior to the credible fear determination. 

Conclusion 

The Committee urges the Senate to provide appointed counsel to all indigent non-citizens 

in removal proceedings, including expedited removal. Such non-citizens should at a minimum 

include Lawful Permanent Residents ("LPRs"), children (whether unaccompanied or not), 

5 
559 

individuals with" serious mental disabilities" and individuals seeking relief under humanitarian 

provisions. 

Thank you for considering these comments and for producing a draft bill that takes such a 

positive step towards achieving desperately needed immigration reform in this country. 

Respectfully submitted, 

Professor Lenni B. Benson 

Chair 

1 See Association of the Bar of the City ofNew York, Committee on Immigration & Nationality Law, Report on the 

Right to Counsel for Detained individuals in Removal Proceedings (August 2009) ("New York City Bar''), availah!e 

at http:i /www. n vcbar.org/ pd f!reportlup loads/2 007 1793-Reportonthe Rig httoC otmse l.pd f. 

2 American Immigration Council, Two Systems ofJustice.· How the Immigration Syslem Falls Short ofAmerican 

Ideals of Justice 12 (March 2013)("American Immigration Council"), available at 

http://www. immigrationpolicy.or!!/sites/detau Jtif1Jes 1

docs/aic t\vosvstemsofiustice.pdf: Mark Noferi. Ca.vcading 

Constitutional Deprivalion.· The Right To Appointed Counsel For .Mandatorily Detaint!-d Immigrants Pending 

Removal Proceedings, 18 Mich. J. Race & L. 63, 119-20 (2012). 

3 Gideon v. Wainwnght, 372 U.S. 335,344 (1963). 

4 Ofthose polled, 87 percent of Democrats, 67 percent of Republicans, and 73 percent of Independents supported 

the proposition. Belden Russonello Strategists LLC, American attitudes on immigration reform, worker protecTions, 

due process and border enforcement 3 (April 2013), available at http:!/cambio-us.org!\vpcontentluploads/20 13/04/B RS-Poll-for-CAMB!O-A PR!L-16-20 13-R ELEASE.pdf. 

5 Ng Fung Ho v. White, 259 U.S. 276,284 (!922); see also Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). 

6 Padilla, 130 S. Ct. at 1480. 

7 New York City Bar at I. 

8 NALEO Education Fund, Immigration Reform Must Provide the Integrations Services Immigrants and American 

Communities Need to Thrive Together, 2 (2013), available at http://s l43989.gridserver.comi2013 lmages!CIRintegration overview.pdf. Seth Freed Wessler, Thousands of Kids Lost From Parents In U.S Deportation System, 

COLORLINES, Nov. 2, 20 II, available at 

http://colorlines.cornJarchive_s/2011/ll/thousands of kids lost in foster homes after PQ.rents deportatiol1,.b..t.mJ 

9 !d. 

10 See Laura K. Abel and Max Rettig, Stale Statutes Providing for a Right to Counsel in Civil Cases, 40 

Clearinghouse Review 245 (July-Aug. 2006), available at http://wwwxivilri£httocoun.se!.or£;1

pdfs;abe!chart.pdf: sell 

also Rosalie R. Young, The Right To Appointed Counsel In Termination Of Parental Rights Proceedings.· The 

States' Response To Lassiter, 14 T ouro L. Rev. 247. 259-63 ( 1997). 

11 Padi/!a, 130 S. Ct. at 1490 (Alita, J., concurring). 

12 New York City Bar at 6; Noferi at 89-95. 

13 New York Immigrant Representation Study Report: Part II, Accessing Justice II: A Mode/for Providing Counsel 

to New York Immigrants in Removal Proceeding.< 19 (2012) ("New York Immigrant Representation Study Report: 

Part II"), available at http://www.cardozolawreview.com/contentidenovofNYIRS Report! I. pdf. 

14 Padilla, 130 S. Ct. at 1481, 1484 n.ll (deportation is a particularly severe "penalty'' akin to ''banishment or 

exile"); Turner v. Rogers, 131 S. Ct. 2507, 2511 (20 II) (freedom from incarceration lies "at the core of the liberty 

protected by the Due Process Clause"); see general!y Noferi at I 01-05. 

6 
560 

15 Noferi at 71 & n.30 (Congress has statutorily provided appointed counsel to criminal pretrial detainees, postconviction sex offender civil commitment hearings, and military preventive detention hearings for AI Qaeda 

suspects). 

16 Noferi at 102 and n. 273-74. 

See American Immigration CounciL 

18 Donald Kerwin & Serena Yi-Yang Lin, Immigration Detention: Can ICE Meet irs Legal Imperatives and Case 

Management Responsibilities? (Washington, D.C.: Migration Policy Institute 2009). 3-4. available at 

http:/1www. migrationpolicv.onUpubsidetentionreportSept I 00~ 

19 New York City Bar at 7; Noferi at 105-08 (articulating impact of detention on ability to litigate proceedings). 

20 New York Immigrant Representation Study, Accessing Justice: The Availability and Adequacy of Counsel in 

Immigrarion Proceedings, 33 Cardozo L. Rev. 357,363-64 (2011), available at 

htto://www,cardozolawreview.com/content/denovo/NYIRS Report.pdf; see also New York Immigrant 

Representation Study Report: Part II (recommending appointed counsel for detainees because detainees face greatest 

barriers). 

21 Building an Immigration System Worthy of Arnerican Values~ Hearing Before the S. Comm. on the Judiciary, I /3 111 

Cong. 8 (2013) (Statement of Paul Grussendorf) ("Grussendorf'), available al 

http://www. judiciary. senate. gov /pdf13-20- 13 G russendorfT est imony .pdf. 

22 Nina Siulc, et al., Vera Institute of Justice, Legal Orientation Program, Evaluation and Performance and 

Outcome Measurement Report, Phase II iv (2008), available at http://www.lustice.gov/eolr/reports/LOPEvaluatiqn--:_ 

final. pdf. 

"Jd. 

24 Lenni Benson and Russell Wheeler, Enhancing Quality and Timeliness in Immigration Removal Adjudication 59 

(2012) ("Benson and Wheeler") available at http:/iwww.acus.govisites 1

default!files 1Enhancing-Qualitv-andTimeliness-in-lmmigration-Removai-Adjudication-Finai-J une· 720 12.pdf; Grussendorf at 8. 

25 Benson and Wheeler at 58; Grussendorfat 8. Each continuance for a detainee costs taxpayers between $8,745 and 

$10,890. Building an lmmigralion System Worthy of American Values, Hearing Before the S. Comm. On 1he 

Judiciary, 1131

h Cong. l3 (2013) (Statement of Ahilan T. Arulanantham, ACLU) ("just a few continuances in one 

case cost as much money as a single attorney who could represent dozens of people each year'") (''Arulanantham"). 

available at 

http:!/www.aclu.org/files/asscts/testimony of abi!an arutanantham for 3 20 13 senate judicimv committee hear 

ino final 3 22 l3.pdf. 

26 Benson and Wheeler at 66-67. 

27 !d. at 59. 

28 See American Bar Association, Reforming the Immigration System, at ES-42 (20 I 0), available ar 

http://www.americanbar.org/content/dam/abalmi!lrated/lmmigration/PublicDocuments/aba complete full rep011.aut 

hcheckdam.pdf. 

29 Benson and Wheeler at 58. 

30 Siulc at 4. 31 Benson and Wheeler at 58. 

32 New York City Bar at 2. 

33 In 2011, more than 5000 children were in foster care as a result of their parents' deportation. Arulanantham. 

Wriuen Statemenr of the American Civil Liberti e.> Union. at 4. We note that Section 2107(c) ofS.744 anticipates 

this issue by contemplating the care of a "separated child"-· one who is in foster care because his or her parent, 

legal guardian, or primary caregiver has been detained or removed for immigration enforcement purposes. 

34 lngrid Eagly, Gideon's Migration, 122 Yale L.J. 101, 125-26 (2013), citing, e.g., David A. Martin, Reforming 

Asylum Adjudication, 138 U. Pa. L. Rev. 1247, 1329-30 (1990). 35 Lassiter v. Dep't of Soc. Servs, I 0 I S. Ct. 2153, 2172 (1981) (Biackmun, J .. dissenting). 

36 See generally Jacqueline Stevens, States Wirhour Nations, http://stateswithoutnations.blogspot.com (last updated 

March 26, 2013); see also Anna Schoenfelder et al., Uncovering USBP: Bonus Programs for Unired Stares Border 

Parra/ Agents and rhe Arresl of L'mfu!ly Present Individuals (Jan. 20 13), available ar 

http://familiesfortreedom.orgisites/default/filesiresources/Uncoverino%20USBP-FFF%20Report%202013 .ru!f 37 A five year bar applies to removal under INA § 212(a)(9)(A)( I). 

38 A lifetime bar applies to removal under INA§ 212(a)(6)(C). 

7 
561 

39 Kevin R. Johnson, Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An 

Immigration Gideon for Lawful Permanent Residents?, Yale L.J. _(forthcoming 2013), available at 

http://ssm.com/abstract=2186245. 

4

° For more infonnation about unaccompanied children facing removal, see U.S. Citizenship and Immigration 

Services, USCIS Initiates Procedures for Unaccompanied Children Seeking Asylum (March 2009) available at 

http://www. uscis.govlfileslarticle/tvpra qa 25mar2009.pdf. 

41 Child Abuse Prevention and Treatment Act, P.L. 93-247 (1974). 

(Fed requirement that states must have a guardian ad litem (attorney or non atty) appointed in child welfare cases.) 42 In re Gault, 387 U.S. I (1967). 43 See, e.g. Catholic Relief Services, Human Trafficking: An Overview (2013), available at http:l'crs.orglpublicpolicylin _ depth.cfm 44 Sonia Nazario, Child Migrants, Alone in Court, N. Y. Times, April I 0, 2013, available a/ 

http:! /www .nvtimes.com/20 13/04/1 1 /opinion/give~!a\:vvers-to-immigrant-chi ldren.htm l?pagewanted=al! 

"'See Press Release, Department of .Justice, Executive Office for Immigration Review, Department ofJuslice and 

the Department of Homeland Security Announce Safeguards for Unrepresented !mmigrution Detainees with Serious 

Mental Disorders or Conditions (Apr. 22, 20 13), available at 

http://www .j ustice.gov /eo ir/press/20 13 /Safeguards U nrepresentedl m migration Deta inees.h tm I. 46 See ABA at 1-15; see also United States Comm'n on In!' I Religious Freedom, Asylum Seekers in Expedited 

Removal (2005), available at http:i/www.uscirf.gov/inde:x.pho?option=coql contcnt&task~-view&id- 189~. 

47 See generally Human Rights First, US Detention ojAsylum Sr1ekers: Seeking Protection Finding Prison (2009). 

available at http://www.humanrightstirst.orgiwp-content!uploadsipdf/090429-RP-hrf-as\·lum-detention-repo[J,pfjJ. 

8 
562 

MEMBER 0RGANJ7AIIONS 

Atl•anceofBaptJsts 

CaliforniaChurchlrnpact 

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ofGioba1~1in•stnr.s,Women'sDiviS10n 

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" \ \Ntl' \Vorkcrs ft,1rv 

'ft"i~}UtJ bi1'"''; 

National Farm Worker Ministry 

April 22, 2013 

Dear Senate Judiciary Committee: 

Our organization, National Farm Worker Ministry, submits this statement 

for inclusion in the record of the Apri122, 2013 Senate Judiciary 

Committee hearing on "As the Border Security, Economic Opportunity, 

and Immigration Modernization Act. S.744." We believe that 

immigration reform is of the utmost importance to helping farmworkers 

and their families have the opportunity to lead productive, healthy lives. 

We are therefore grateful to you and your colleagues, who have spent 

considerable effort to take into account the interests and knowledge of 

stakeholders in agriculture and to develop legislation to reform our broken 

immigration system. 

National Farm Worker Ministry (NFWM) has over 90 years of experience 

in service with farm workers. Based in state ministries which began 

providing charitable services to farm workers in the 1920's, we became a 

national organization in 1971 to engage people of faith across the country 

in support of fann worker efforts to improve their living and working 

conditions. NF\VM is composed of thirty member organizations. which 

include national denominations. religious orders and regional groups. 

hundreds of suppm1ing organizations. and thousands of conccmed 

individuals. W c believe in the biblical mandate to .. welcome the 

strang~..~r" and to "'love our ncighhor as oursdvcs''_ Vv'e believe in the God 

gi\ en dignity of all people. and their right to he treated fairness and 

respect. 

We're very pleased that farmworker and grower representatives have 

come to an agreement on immigration reform for agriculture. This 

compromise should greatly increase support for comprehensive 

immigration reform and get us closer to dignity for farm workers. As the 

Border Security, Economic Opportunity, and Immigration Modernization 

Act of 2013 (CIR bill) moves through the legislative process, we write to 

emphasize the importance oflabor protections for immigrant fannworkers 

and urge you to ensure that existing worker protections remain in the bill 

or are strengthened. 

438 N. Skinker Blvd. St. Louis, MO 63130 314·726·6470 www.nfwm.org 
563 

The Current Landscape: Greater Protections Needed for Farmworkers 

The lack of authorized immigration status of so many farmworkers contributes to their poor wages 

and working conditions. Farm worker wages are among the lowest in the country. Many earn at or 

just above the minimum wage. Poverty among fannworkers is more than double that of all wage 

and salary employees. Few farm workers receive any fringe benefits. such as paid sick leave or paid 

vacation. Decrepit. overcrowded housing is all too common. Health insurance is rarely provided by 

employers and few fannworkers can afford to purchase it on their own. Yet. agriculture ranks 

among the most hazardous occupations. Federal laws on overtime pay and collective bargaining 

exclude fannworkers. as do most federal occupational safety standards and many states' workers' 

compensation systems. 

Such marginalized workers fear joining labor unions, seeking improved job terms, or challenging 

illegal employment practices. Agricultural workers experience rampant violations of employment 

laws. including minimum wage requirements. Frequently, farm operators hire workers through farm 

labor contractors, whom they claim are the sole "'employers" for purposes of escaping immigration 

and labor laws. Undocumented workers who challenge illegal employment practices risk losing 

their job and breaking up their families and other dire consequences of deportation. 

National Farm Worker Ministry stall and board members have spent time 11 ith limn 11orkers in the 

fields and labor camps and rural to11ns of Florida. N011h Carolina. California. Arizona. Washington. 

and Oregon and else11here. We have met undocumented workers who live in crowded bug infested 

labor camps. lacking clean sanitary facilities or safe drinking water. but are afl·aid to ask for better. 

lest they be fired and deported. We have mel undocumented 11orkers cheated out of the minimum 

wage. afraid to speak up lest they be fired and deported. We have met 11omen who have endured 

sexual harassment. threatened 1\ith tiring or deportation if they speak up. We ha1·e seen the burns on 

workers exposed to toxic pesticides beyond any tolerable limit yet 1\ith no ready aecess to medical 

care. These are conditions experienced by people 11 ho arc essential to our agricultural industry. It is 

an untenable situation fi.lr 1\hich we all bear responsibility. 

We have also spoken to women and men 11ho have lived and worked here on our farms. orchards 

and dairies for fifteen to twenty years. yet speak tearfully of their fear of deportation and separation 

from their children. We have met fa1111 workers who eame here over t11·e years ago to work simply 

to be able to provide ti:.1od and shelter for their families in their home country: they haven't been 

able to go back since they made their risky trip here. missing birthdays. baptisms. and funerals. We 

have met families of1mrkers \\ho have died here due to heat stress in the fields. and are only able to 

return home to be buried. We believe it is a moral travesty to separate families. in order to feed US 

families. 

We are tremendously grateti.!l f(w the 1\ork done by those who provide the tood for our tables. We 

believe that they deserve a path to citizenship in recognition of their tremendous sacrifice and 

contributions to our economy and society. We 11elcome this bill which provides. that. and 

appreciate the work that has gone into its de\ elopment. 

NFWM 438 N. Skinker Blvd. St. Louis, MO 63130 314-726-6470 www.nfwm.org 
564 

Roadmap to Citizenship: the Blue Card 

With a roadmap to citizenship. all farmworkers. including the hundreds of thousands of current U.S. 

workers and the newly American. will be on a level playing field. We are very pleased that the CIR 

bill contains a roadmap to citizenship for current and future farmworkers and their families. We 

strongly support the proposal for a "'blue card" program, under which experienced undocumented 

farm workers and their family members could earn legal immigration status, permanent residency 

and citizenship within a reasonable period of time and at a reasonable cost given their low incomes. 

Farm workers and their families are contributing to America; it is only fair that they be given an 

opportunity earn legal immigration status. With a roadmap to citizenship. all fannworkers. 

including the hundreds of thousands of current U.S. workers and the newly American. will be on a 

level playing field. An above-board agricultural labor relations system will lead to better working 

conditions, less employee turnover and higher productivity, all of which will help ensure a 

prosperous agricultural sector. The entire food system will benefit by responding to consumers' 

increasing interest in the conditions under which their fruits and vegetables are produced. 

The New Nonimmigrant Agricultural Visa Program 

The new system would end or weaken certain longstanding H-2A labor protections but also would 

provide important new rights. We are very pleased that farmworkers in the proposed future visa 

program will be covered by the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 

the main federal law that protects farm workers. The program would also maintain the requirement 

that U.S. workers in corresponding employment receive the same wages and benefits as the visa 

workers (with unfortunate exceptions of housing for certain workers). and it contains a cap to limit 

the number of workers that may be brought in on the visa. We hope that portability provisions of the 

new visa program would offer workers some ability to move from job to job, which should mitigate 

some of the problems in the current H-2A program associated with workers being tied to their 

employer by their visa. However, we note that contract workers in the program will have less 

freedom to change jobs, which could result in labor exploitation. There will need to be protections 

for contract workers, whose employers violate their labor rights. They should be assisted in 

transferring to another position. 

Some of the other provisions give us pause. The 50% job preference rule in the H-2A program that 

requires employers to hire any ready, willing and qualified U.S. worker up until 50% of the H-2A 

contract period is not in the current bill. The administration of the program by the U.S. Department 

of Agriculture instead of the U.S. Department of Labor causes concern. The Department of Labor 

has significant experience, expertise and infrastructure in operating guestworker programs and 

protecting workers. If this major change is maintained in the legislation, we support that the bill's 

provision of a consultative role for the Department of Labor. 

We note that other reductions in the requirements for and oversight of recruitment of U.S. workers 

could result in U.S. workers being displaced by workers on the visa. Thus, the modest protections 

for U.S. workers that are included in the current compromise language will be essential to protect the 

jobs of current U.S. workers and future legalizing workers. Further, once the bill is enacted, there 

will need to be stringent enforcement of the protections in the program and labor laws protecting 

farm workers. 

We applaud the opportunity for nonimmigrant visa farm workers to eventually apply for green cards 

NFWM 438 N. Skinker Blvd. St. Louis, MO 63130 314-726-6470 www.nfwm.org 
565 

but we are concerned that the waiting period could last many years. 

The Broader Legalization Program and Worker Protections in the CIR Bill 

We applaud the bill's broader legalization program. We also strongly support the provisions in the 

bill that aim to protect immigrant and nonimmigrant workers from retaliation and abuse, including 

the protections against abuse in international labor recruitment. Workers' experiences during the 

recruitment process have a substantial impact on their earnings and conditions in the U.S. Many 

temporary foreign workers are charged high recruitment fees, in violation of federal law, to obtain 

emplo)1nent. To afford those fees and transportation costs, workers often borrow money, 

frequently at high interest rates. Upon arrival in the U.S., these indebted workers, particularly 

under the H-2A program and potentially in the future, are too fearful of losing their jobs and 

deportation to challenge unfair or illegal conduct. It has often been said that many guestworkers 

"work scared" and therefore are compliant and highly productive at low wages in comparison to 

workers with freedom in the marketplace. The recruitment system must be regulated and 

transparent. Employers that use recruiters for guestworkers should disclose to the govenunent the 

identities of the recruiters, ensure workers do not pay recruitment fees, and be responsible for 

abuses inflicted on workers when they have used unlicensed recruiters. 

In conclusion, we strongly support the proposal's road map to citizenship for undocumented 

farmworkers and their families. We stress that the future nonimmigrant agricultural visa program is 

the product of a compromise and that its modest labor protections must remain in the bill and be 

enforced effectively in order for the program to be workable and fair. Thank you again for your 

efforts to bring farm workers one step closer to gaining legal status and the much-earned 

recognition for their contributions to the United States. 

NFWM 438 N. Skinker Blvd. St. Louis, MO 63130 314-726-6470 www.nfwm.org 
566 

Citizen Gain: 

Why a Roadmap to Citizenship is So Important for 

Immigrants and for the American Economy 

Statement of Manuel Pastor 

Director 

Center for the Study of Immigrant Integration 

University of Southern California 

Before the Senate Judiciary Committee 

Full Commitee 

United States Senate 

April22, 2013 
567 

Statement of Manuel Pastor 

Director 

Center for the Study of Immigrant Integration 

University of Southern California 

Before the Senate Judiciary Committee 

Full Commitee 

United States Senate 

Apri122, 2013 

Chairman Leahy, Ranking Member Grassley, and distinguished Members of the Senate 

Judiciary Committee, thank you for inviting me to present our analysis of the economic benefits 

of naturalization for immigrants and the economy. I direct the Center for the Study oflmmigrant 

Integration (CSII) at the University of Southern California (USC). Our mission at CSII is to 

further the understanding of immigrant integration in America. To do so we bring together three 

emphases: scholarship that draws on academic theory and rigorous research, data that provides 

information structured to highlight the process of immigrant integration over time, and 

engagement that seeks to create new dialogues with government, community organizers, 

business and civic leaders, immigrants and the voting public. 

Our center recently released a report entitled "Citizen Gain: The Economic Benefits of 

Naturalization for Immigrants and the Economy:' with support from the JohnS. and .James L. 

Knight Foundation, and the Carnegie Corporation of New York (Pastor and Scoggins 2012). In 

it, co-author .Justin Scoggins and I provide current estimates of the economic benefits of 

naturalization for non-citizen immigrants currently residing in the U.S.- both to newly 

naturalized immigrant workers themselves and to the economy as a whole. That report forms the 

basis of the testimony presented below. 

Introduction and Overview 

For a variety of reasons, legalization without a clear and reasonable path to citizenship is 

\\Tong for democracy. One set of reasons is grounded in commonly held notions of our national 

identity: we are, after all, a nation of immigrants, and perhaps as important, creating a permanent 

set of second-class residents runs directly against the principles of equality and full participation 

that are so central to the American ethos. However, another rationale of including citizenship in 

reform is purely economic: for a variety of reasons, citizenship has positive monetary benefits for 

both immigrants and the economy. 

Wily does naturalization pay off? There are three key factors at play: citizen immigrants 

tend to gain more U.S.-specific skills, they have access to a broader range of jobs, and they are 

Pagel 
568 

often a better match for employers because their documentation is undisputable. And while one 

might suspect that the economic gains we and others have found stem primarily from attaining 

legal status rather than citizenship (after all, only the documented can become citizens), in a set 

of special tests on California, a state in which we are able to generate estimates of who in the 

labor force is undocumented, we find an even bigger earnings difference between naturalized and 

non-citizen, but documented, immigrants. 

Our results are largely consistent with previous research, and suggest that naturalization is 

associated with an 8 to II percent gain in annual earnings, on average. Using individual-level 

data from the 2010 American Community Survey, we were also able to model the length of time 

it to materialize for the typical newly-naturalized immigrant worker, and found that much of it 

occurs very soon after naturalization: our estimates suggest that about two-thirds of it is seen in 

the first two years following naturalization, and the rest of it shows up within about ten years. 

The original intent of our work was not to inform the nature of comprehensive 

immigration reform but rather to encourage civic organizations and Citizenship and Immigration 

Services to step up their efforts to encourage naturalization. Because of this, we coupled these 

individual-level estimates with data on the existing pool of eligible-to-naturalize Lawful 

Permanent Residents (LPRs) from the U.S. Office of Immigration Statistics (OIS), in order to 

simulate the impact on aggregate earnings of programs aimed at increasing the rate of 

naturalizations enough to reduce the number of those eligible to naturalize by half over five to 

ten years. Depending on the program, we put the gain to the American economy over a 10-year 

period at roughly $21 billion to $45 billion. The key factor distinguishing these lower- and 

upper-bound estimates is not so much the gain to the individual (8 versus 11 percent) as it is the 

length of time before higher rates of naturalization are achieved. 

The results, while originally developed for another purpose, are directly relevant to the 

reform package you will be discussing. I understand why the ten year delay in securing a green 

card is being proposed and I am pleased that the route to citizenship after that would only take 

three years. On the other hand, I would be even happier with a quicker path to the green card and 

citizenship: more naturalizations in the short term will mean that the economic gains are sooner 

realized and so the cumulative long-term gains will be that much larger. Establishing a path to 

citizenship is clearly in our national economic interest, but the length of that path is important 

too. Any movement to prolong or complicate that path unnecessarily in the context of 

immigration reform- under tl1e guise of fairness to those who "played by the rules''- should 

explain why this is worth causing economic loss to the. country as a whole. 

Why Would We Expect Economic Benefits from Naturalization? 

Citizenship brings many benefits to immigrants, the opportunity to participate more fully 

in our democracy through the right to vote being primary among them. But beyond the clear 

civic gain is an often overlooked economic benefit: for a variety of reasons, naturalized 

Page 2 
569 

immigrants are likely to see a boost in their family incomes that can benefit their children, their 

communities and the nation as a whole. 

Why might naturalization matter? The two main ways in which obtaining citizenship 

could lead to better economic outcomes are thoroughly examined in Bratsberg, Ragan, and Nasir 

(2002). They describe two broad channels: job access and the acquisition of"U.S.-specific 

human capitar' which is incentivized by a decision to remain in the U.S. permanently. 

Better access to jobs through attaining citizenship can occur for a variety of reasons, 

including the fact that many public-sector jobs actually require citizenship and they tend to pay 

better (Shierholz 201 0). Holding a U.S. passport is also an asset for jobs that require international 

travel. Beyond the actual job requirements, citizenship can also be a signal to employers that an 

immigrant has characteristics they are looking for in an employee, such as a basic command of 

English and possession of"good moral character" both requirements for naturalization (USClS 

2012)- as well as a commitment to remain in the U.S. (and on the job) for the long tenn. Finally, 

some have suggested that citizenship is an assurance of legal status for employers who may be 

worried about facing sanctions for inadvertently hiring undocumented workers and would thus 

shy away from non-naturalized immigrants (Mazzolari 2009, 186). 

Citizenship is also thought to be associated with the acquisition ofU.S.-specific human 

capital. After all, with planned permanent residency in the U.S. may come a greater incentive to 

make long-term investments (e.g. obtaining tailored education and/or specific vocational 

training, starting a U.S.-based business, or social networking with those in the same regional 

labor market) that might not be made if a person was assuming that s/he might eventually 

(voluntarily or not) go back home. Unfortunately, because U.S.-specific human capital is not 

generally measurable in survey data- education just shows up as education rather than a set of 

courses in a very specific U.S.-based career- it can pose challenges for estimating the economic 

benefits of naturalization. On the other hand, this also means that finding a difference in income 

for a naturalized immigrant, once you've controlled for education level, regional labor market, 

and other factors, could be a signal of this sort of citizenship-induced investment in U.S.-specific 

human capital. 

Research Broadly Agrees that Naturalization Has Economic Benefits 

On the whole, naturalized immigrants have better economic outcomes than their 

noncitizen counterparts- but they also tend to have substantially higher levels of what 

economists refer to as "human capital" (e.g. experience, education, and English language ability) 

and vary by other key characteristics as well (recency of arrival, country of origin, etc.). For that 

reason, the focus of the research has been on whether citizenship matters per se for the economic 

outcome of immigrants, or whether the differences in outcomes are actually explained by 

differences in other characteristics. 

Page 3 
570 

There are two broad approaches that have been employed in testing whether citizenship 

matters for immigrant economic outcomes. Both use regression analysis -a statistical technique 

that attempts to separate impact of citizenship on income from the impacts of other individual 

characteristics. One approach involves using cross-sectional data (i.e. data for multiple 

individuals at one point in time) and then modeling income as a function of citizenship and a set 

of"control variables" thought to affect individual income levels. A second (and far less 

common) approach tries to track the same individuals over time to see what difference 

naturalization may have made in their economic trajectory. 

Examples abound of studies that have applied the cross-sectional approach, and they 

broadly concur that naturalization has a positive and statistically significant relationship to 

income (see, for example, Chiswick 1978, Chiswick and Miller 1992, De Voretz and Pivnenko 

2004, Bevelander and Pendakur 2011, and Shierholz 201 0). However, the "over time" or 

longitudinal studies can be more convincing because they theoretically account for individual 

characteristics (e.g. personal drive or motivation) that are not captured in survey questions. 

Moreover, this analytical strategy puts aside the critique that the unauthorized are also noncitizen 

immigrants and cross-section comparisons can't separate the effect (although we do so, as 

discussed below): after all, in order to become a citizen, one needs to be authorized first so any 

gain from citizenship seen over time for the same person is just that. 

Unfortunately, such longitudinal studies are a challenge data-wise and hence are few and 

far between. The only study on immigrants in the U.S. using this method (that we are aware of) 

is Brats berg, Ragan, and Nasir (2002). Using data on 332 young male immigrants followed from 

1979 through 1991, they found (among other things) that naturalization was associated with a 

wage gain of around 5.6 percent in their sample; they note that this is not a one shot gain and use 

an alternative set of specifications to suggest that naturalization leads to a small initial increase 

followed by wage growth over time that is faster than that of immigrants who did not naturalize 

but were otherwise similar. 

An interesting aspect of the Bratsberg eta!. (2002) study is that the authors directly 

compare the cross-sectional approach and the longitudinal approach on the same data. The 

results for three cross-sectional analyses- all1imited to young adult males suggest that 

naturalization is associated with a wage increase of between 5 and 6 percent (with all controls in 

the regression analysis). This figure that is almost exactly what they find when they subject the 

one of those dataset to the "over-time" analysis described above. This suggests that 

crosssectional approaches do yield reliable results -and it also suggests that a cross-section 

estimate that includes those who have had more time since naturalization might find a larger 

overall effect. 

Our Recent Analysis Suggests Significant Economic Benefits of Naturalization 

With the available research suggesting that naturalization has some positive effect on 

income, we have tried to derive a current estimate of economic benefits of naturalization using 

the annual earnings of individual immigrant workers in the 2010 American Community Survey 

Page 4 
571 

(ACS, as processed by IPUMS-USA; see (Ruggles et al. 2010)). To do this, we conducted a 

multivariate regression analysis in which annual earnings was modeled as a function of as many 

factors as possible that are important in predicting income ("control variables''). along with a 

variable indicating if the individual was a naturalized citizen. 

We generated two basic estimates, one that included detailed controls for industry and 

occupation of employment and that did not. The first estimate is more conservative since some 

authors stress that one of the paths to higher earnings through naturalization is increased job 

mobility between occupations and sectors (Brats berg, Ragan, and Nasir 2002). With these 

considerations in mind, we suggest that the "true" impact on earnings from attaining citizenship 

falls somewhere between 8 percent (the estimate we get when including controls for industry and 

occupation), and 11 percent (the estimate we get v,-ithout controls for industry and occupation), 

and treat the two results as lower- and upper-bound estimates, respectively. 

In order to test these whether results are biased by the inclusion of the undocumented in 

the sample, we replicated our models for just Latinos in California- a group for which we are 

able to estimate who is documented and undocumented using a methodology developed by 

Enrico Marcelli of San Diego State University. We ran the models once with Latino immigrants, 

and then again after excluding the undocumented, and compared the results. We found that the 

impact of naturalization was essentially the same under both specifications, suggesting that 

citizenship really does make a difference. 

Finally, we estimated the time it takes for gains to naturalization to be realized, drawing 

on information gleaned from a question on year of naturalization included in the 20 I 0 ACS 

microdata. To do so, we ran the same regression model presented above, but rather than entering 

the citizenship dummy as a single variable, we split it into a set of dummy variables capturing 

those who naturalized during different periods of time prior to the survey. 

The results of this exercise are summarized in Figure I. There, we tlnd a boost in 

earnings of 5.6 percent for those who naturalized one or two years ago, a figure that is fairly 

close to that found using a comparable specification from Brats berg et al. (2002). The effect 

increases with experience since naturalization, reaching between ten and fourteen percent for 

immigrants who naturalized 12 to 17 years prior to the time of the survey, a rate of grov,ih quite 

close to that obtained in Steinhardt (2008). In any case, our results do support the notion of a 

relatively immediate boost in earnings associated with naturalization, with additional gains over 

subsequent years. 

Figure 1: Earned Income Returns to Immigrant Naturalization by Recency of 

Naturalization 

Page 5 
572 

-returns, no job shifting 13.5% 

12.9% 

-returns, with job shifting 12.4% 

mid-range estimate 

10.0% 

7.'B'o 

1 to 2 3 to 6 7 to 11 12 to 17 18 to 29 30 or more 

Years since naturalization 

Reform and the Roadmap to Citizenship 

In our original paper on this topic, we took these estimated gains over time, applied them to the 

pool of those eligible to naturalize, and estimated the economic gains to both those immigrants 

and the country that could be realized by a more aggressive program to promote naturalization. 

We have subsequently suggested that lowering the fees for naturalization (or shifting the relative 

fee structure to incentivize the acquisition of English, civics, and citizenship) might have real 

economic and civic payoffs (Pastor et aL 2013 ). 

But the current discussion of immigration reform raises an important reason to revisit these 

results. After all, based partly on a provocative article authored by Boston College professor 

Peter Skerry (20 13 ), some have suggested that we might have a path to legalization that does not 

include an eventual opportunity for citizenship. Moreover, the various triggers in the current 

proposal could postpone the granting of green cards and a delay in citizen gains. 

Some may think this is a good way of punishing immigrants who didn't follow the rules- but it's 

really just a way to punish ourselves. A broad legalization program with a clear and rapid path to 

citizenship will help immigrants to be sure, but it will also help the American economy. 

Page 6 
573 

The legislation you are considering is headed in the right direction in this regard. Indeed, I 

would recommend a shorter period in which the fonnerly unauthorized would be in the 

Registered Provision Immigrant status and a more reasonable set of triggers with regard to 

detennining whether border enforcement has improved. 

Inevitably, however, you and your colleagues have had to make (and will continue to make) 

compromises between competing interests and views. As you do so, recognize the civic and 

economic benefits we will forego if we do not maintain and indeed accelerate the route to 

citizenship for the unauthorized as well as more strongly promote the naturalization of those who 

are currently lawful pennanent residents (LPRS). 

Thank you. 

Page 7 
574 

References 

Bevelander, Pieter, and Ravi Pendakur. 2011. "Citizenship, Co-ethnic Populations, and 

Employment Probabilities of Immigrants in Sweden.'' International Migration & 

Integration 13: 203-222. 

Bratsberg, Bernt, James F. Ragan, and Zafar M. Nasir. 2002. "The Effect of Naturalization on 

Wage Grov.th: A Panel Study of Young Male Immigrants": 568-597. 

Chiswick, Barry R. 1978. "The Effect of Americanization on the Earnings of Foreign-born 

Men." Journal o{Political Economy 86 (5): 897-921. 

Chiswick, Barry R., and Paul W. Miller. 1992. '·Language in the Labor Market: The Immigrant 

Experience in Canada and the United States." In Immigration, Language and Ethnic 

Issues: Canada and the United States. Washington, DC: American Enterprise Institute. 

DeVoretz, Don J., and Sergiy Pivnenko. 2004. "The Economics of Canadian Citizenship.'' Willy 

Brandt Series (){Working Papers in International Migration and Ethnic Relations 4 (3): 

36. 

Mazzolari, Francesca. 2009. "Dual Citizenship Rights: Do They Make More and Richer 

Citizens?" Demography 46 (1 ): 169-191. doi: 10.1353/dem.0.0038. 

Pastor, Manuel, Jared Sanchez, Rhonda Ortiz, and Justin Scoggins. 2013. "Nuturing 

Naturalization: Could Lowering the Fee Help?" Los Angeles, CA: Center for the Study of 

Immigrant Integration, University of Southern California. 

Pastor, Manuel, and Justin Scoggins. 2012. "Citizen Gain: The Economic Benefits of 

Naturalization for Immigrants and the Economy". Los Angeles, CA: Center for the Study 

oflmmigrant Integration, University of Southern California. 

http:/ /csii. usc.edu/CitizenGain.html. 

Ruggles, Steven J., J. Trent Alexander, Katie Genadek, Ronald Goeken, Matthew B. Schroeder, 

and Matthew Sobek. 2010. Integrated Public Use Microdata Series: Version 5. 0 [Machinereadable Database]. Minneapolis: University of Minnesota. Shierholz, Heidi. 2010. "The 

Effects of Citizenship on Family Income and Poverty". Washington, DC: Economic Policy 

Institute. 

Skerry, Peter. 2013. "Splitting the Difference on Illegal Immigration." National Affairs. 

Steinhardt, Max Friedrich. 2008. "Does Citizenship Matter? The Economic Impact of 

Naturalizations in Germany". 266. CENTRO STUD! LUCA D'AGLlANO 

DEVELOPMENT STUDIES WORKING PAPERS. Milan, IT: Centro Studi Luca 

D'Agliano. USCIS. 2012. "A Guide to Naturalization". U.S. Citizenship and Immigration 

Services. 

http://www. uscis.gov /filcs/article/M-4 76. pdf. 

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575 

RIGHTS 

vvorkir>g grcup 

STATEMENT OF 

MARGARET HUANG, EXECUTIVE DIRECTOR RIGHTS 

WORKING GROUP 

FOR THE HEARING ON 

THE BORDER SECURITY, ECONOMIC OPPORTUNITY, 

AND IMMIGRATION MODERNIZATION ACT, S.744 

SENATE JUDICIARY COMMffiEE 

APRIL 22, 2013 

Chairman Leahy, Ranking Member Grassley, and members of the Committee: I am 

Margaret Huang, Executive Director of Rights Working Group. Thank you for the 

opportunity to submit testimony for inclusion in the record of today's hearing. 

Rights Working Group (RWG) was formed in the aftermath of September 11th to promote 

and protect the human rights of all people in the United States. A diverse coalition of 

more than 350 local, state and national organizations, RWG works collaboratively to 

advocate for the civil liberties and human rights of everyone regardless of race, ethnicity, 

religion, national origin, citizenship or immigration status. Currently, RWG leads the Racial 

Profiling: Face the Truth campaign, which seeks to end racial and religious profiling. 

RWG welcomes the introduction of the Border Security, Economic Opportunity, and 

Immigration Modernization Act of 2013, and applauds Senators Schumer, McCain, 

Durbin, Graham, Bennet, Lee, Menendez, and Flake for their tremendous effort in 

negotiating and drafting a bipartisan immigration reform bill. This legislation is an 

important step forward in creating an inclusive pathway to citizenship for millions of 

immigrants, while also promoting key due process protections and border reforms that 

are needed to uphold human rights for all people in the United States. 

RWG is optimistic that the Senate Judiciary Committee will move forward thoughtfully and 

efficiently as it reviews this important legislation. As this process advances, we urge 

members of the Committee to preserve crucial civil and human rights provisions already 

present in the bill, and to strengthen protections in a few key areas that are important to 

our members throughout the country. Because of our leadership of a national campaign 

against racial profiling, we deeply appreciate the efforts of the Senate negotiators to 

include a provision prohibiting racial profiling in the legislation. This provision is an 
576 

RIGHTS 

group 

important first step, but we would like to see the section strengthened during the 

Committee's consideration. Other top issues of interest include human rights protections 

in border enforcement; reforms to immigration courts and the expansion of judicial 

discretion; and worker protections and anti-discrimination provisions within the 

employment verification system. 

Racial Profiling 

RWG welcomes the inclusion of Section 3305 on Profiling in the bill. Racial profiling by 

local, state, and federal law enforcement officials is a pervasive problem throughout the 

United States, one that is a violation of Constitutional rights, that erodes trust between 

law enforcement and communities of color, and that wastes law enforcement resources 

and is counterproductive. It impacts all of the diverse members and communities of the 

Rights Working Group coalition. Concerns about racial profiling have escalated in recent 

years as the federal government has invested extraordinary resources in immigration 

enforcement measures. The "enforcement first" approach has doubled the number of 

Border Patrol agents since 2005, transferred immigration enforcement duties to local and 

state police throughout the country, and increased the federal budget expenditures on 

immigration enforcement to unprecedented levels, all without establishing meaningful 

protections of human rights and against racial profiling. Diverse immigrant communities 

and communities of color, including Latino, African American, Asian American, Muslim 

American, Arab American, and South Asian communities, have protested the negative 

impact of such policies. Section 3305 offers an important step forward in combating racial 

profiling, but we hope to see further amendments to the bill to strengthen its provisions. 

Section 3305 would, for the first time, codify a prohibition against racial profiling into U.S. 

Federal law. This would be a groundbreaking step for advocates throughout the country 

who have worked on many successful state-based campaigns to ban racial profiling and 

have supported the introduction of the End Racial Profiling Act on the federal level. 

Unfortunately, the language in Section 3305 of this immigration reform legislation is taken 

from the 2003 Bush-Ashcroft Department of Justice Guidance Regarding the Use of Race 

by Federal Law Enforcement Agencies (2003 Guidance), a document that RWG and 

allies have found inadequate due to numerous loopholes that allow racial profiling to 

continue. The 2003 Guidance does not prohibit profiling on the basis of national origin or 

religion, and it exempts law enforcement activities related to national security and border 

enforcement. These exemptions narrow the prohibition to such a degree that many 

communities deeply affected by racial profiling would be denied any meaningful 

2 
577 

RIGHTS 

vvorking group 

protection. This concerns us greatly, especially in light of the vast increase in resources 

for immigration and border enforcement provided in other sections of this bill. 

Complaints about racial profiling abound under current immigration and border 

enforcement policies. Customs and Border Protection (CBP), the federal agency charged 

with defending border security, currently patrols a 100-mile jurisdiction on each border, 

an area where nearly two-thirds of the U.S. population resides, and which includes such 

major cities as New York City, Detroit, Miami and Los Angeles.! This bill's prohibition 

language which includes an exception for border security could fail to protect racial 

profiling victims throughout that vast zone. This is particularly troubling given that CBP 

agents have been known to harass people of color on buses and trains that cross no 

international border; to respond to 911 calls placed by non-native English speakers; and 

to interrogate people at churches, hospitals, and other sensitive locations.2 

Many residents of border communities as well as in other areas of the U.S. are targeted 

due to their religion and national origin, often under the pretext of national security. For 

example, at certain U.S. airports, Sikh travelers are stopped and searched 100% of the 

time. 2 At ports of entry and within the 100-mile jurisdiction along the Northern border, 

Muslims of all ethnic backgrounds are interrogated and searched with disproportionate 

frequency, and many have been asked inappropriate questions about their religious 

beliefs and interpretations of the Koran. The FBI has been known to map and surveil 

communities based on their specific national origin, without any basis for individualized 

suspicion. 3 Unless specific language is included to prohibit profiling on the basis of religion 

or national origin, and unless the national security and border security loopholes are 

removed from the bill, many communities will remain unprotected from unethical and 

counterproductive law enforcement practices. 

1 http:l/www.aclu.org/national-security techno!ogy-and-libertv/are-you-!iving-constitution-free-zone 2 

http://www.nyclu.org/news/nyclu-senate-immigration-reform-bill-good-first-step-needs-improvement; 

bJJJrJLwww. nyti m es. co m/20 10/08/30/nyregi o n/30 border. htm I ?pagewa n ted-a II 

::_The Sikh Coalition, "The TSA Report Card: A Quarterly Review of Security Screenings of Sikh Travelers in 

U.S. Airports," Q2 2009 (Aug. 2009), accessible at 

https://salsa.wiredforchange.com/o/1607 /images/2009%20Q2%20Report%20Card.pdf 

:_American Civil Liberties Union, "ACLU Eye on the FBI: The FBI is Engaged In Unconstitutional Racial Profiling and 

Racial 'Mapping,"' October 20, 2011, http://www.aclu.org/files/assets/aclu eye on the fbi alert -

fbi engaged in unconstLtutional racial profiling and racial mapping O.pdf 

3 
578 

RIGHTS 

working group 

The End Racial Profiling Act of 2011 (ERPA), as introduced in the Senate, defines Racial 

Profiling as: 

the practice of a law enforcement agent or agency relying, to any degree, 

on race, ethnicity, national origin, or religion in selecting which individual to 

subject to routine or spontaneous investigatory activities or in deciding 

upon the scope and substance of law enforcement activity following the 

initial investigatory procedure, except when there is trustworthy 

information, relevant to the locality and timeframe, that links a person of a 

particular race, ethnicity, national origin, or religion to an identified criminal 

incident or scheme. 

Furthermore, it defines "routine or spontaneous investigatory activities" as: 

interviews; traffic stops; pedestrian stops; frisks and other types of body 

searches; consensual or nonconsensual searches of the persons, property, 

or possessions (including vehicles) of individuals using any form of public 

or private transportation, including motorists and pedestrians; data 

collection and analysis, assessments, and predicated investigations; 

inspections and interviews of entrants into the United States that are more 

extensive than those customarily carried out; immigration-related 

workplace investigations; and such other types of law enforcement 

encounters compiled for or by the Federal Bureau of Investigation or the 

Department of Justice Bureau of Justice Statistics. 

This language offers the strong protections needed to eliminate all types of racial profiling. 

We urge members of the Committee to strengthen the prohibition on profiling contained 

in Section 3305 of S.744 to make it consistent with the above language and provide 

enforceable protection from racial profiling for all of our country's diverse communities. 

RWG is very pleased to see that Section 3305 creates a data collection requirement that 

will apply to all Department of Homeland Security (DHS) officers, including CBP, 

Immigration and Customs Enforcement (ICE), and Transportation Security Administration 

(TSA) law enforcement agents. Data collection and analysis is essential to the 

enforcement of any prohibition on racial profiling. We are optimistic that the data 

collection and subsequent DHS reports to the relevant Congressional Committees will 

4 
579 

RIGHTS 

vvorking 

allow for the adoption of sound regulations to combat racial profiling by federal law 

enforcement agents.4 

Data collection provisions as written in Section 3305 are an excellent start. We believe, 

however, that the data collection and reporting process ought to be further strengthened. 

First, we urge that data collection investigate profiling based not only on perceived race 

and ethnicity, but also on perceived religion and national origin. We also believe that data 

collection and reporting requirements should be continued after the initial report cited in 

the bill. Otherwise, there will be no mechanism to monitor ongoing compliance with the 

prohibition. 

Lastly, RWG applauds the requirement that new regulations regarding the use of racial 

profiling by DHS agents be issued within a year and 90 days by the Secretary of Homeland 

Security. This is an important component, and we look forward to seeing those regulations 

in place. We urge the Committee to support this piece of the legislation, and to fortify it 

by ensuring that regulations require mandatory training by all DHS law enforcement 

agents on the racial profiling prohibition and their obligations. The regulations should also 

establish an oversight mechanism to hold DHS agents accountable for compliance with 

the prohibition against all types of profiling. 

Border Enforcement 

The expansion of border enforcement has been of particular concern to many of our 

members and their communities who live and work along the United States' borders with 

Mexico and Canada. In addition to racial profiling incidents described in the section above, 

federal law enforcement agents along the borders have been known to use excessive 

force, wounding and even killing individuals in response to minor or no provocation. RWG 

applauds the inclusion of new human rights protections within border enforcement, 

including strengthened provisions on excessive use of force, improved training for Border 

Patrol agents, expansion of the mandate of the CIS Ombudsman to address CBP and ICE 

issues, and the creation of a Department of Homeland Security Border Oversight 

Taskforce of community representatives. 

We are concerned, however, by the bill's proposal to further expand expenditures on 

border enforcement and militarization at the border. Past expansions have often come 

with the loss of human rights and civil liberties protections in border communities. We do 

'_For further RWG recommendations regarding data collection, see 

http://rightsworkinggroup.org/sites/defa]!J.!Lfil~ta%20Collection%20Recommendations%20for%20DHS.PDF 

5 
580 

RIGHTS 

vvorking 9roup 

not support the increased funding for border fencing, surveillance technology, more 

Border Patrol agents, border crossing prosecutions, Operation Stonegarden, or National 

Guard deployment. We also urge the Senate to ensure that border "triggers" and the bill's 

apprehension effectiveness rate requirements will not delay the legalization process and 

pathway to citizenship. 

Court Reform and Judicial Discretion 

We welcome language in the bill that restores discretion to immigration judges to assess 

individual circumstances before determining inadmissibility or deportation. We also 

welcome the addition of resources to immigration courts, which will help make 

immigration proceedings more efficient while also ensuring that individual immigrants' 

rights to due process and a fair trial are upheld. 

Employment Verification 

RWG welcomes the due process and worker protections included in the legislation's 

proposal for an employment verification system. We applaud the expansion of the scope 

of antidiscrimination protections under the Immigration and Nationality Act (INA) with 

respect to hiring, firing, and verification. 

RWG is concerned, however, by threats to privacy implicit in the expansion of employment 

verification as proposed in this legislation. We are especially troubled by provisions to 

expand the use of biometric data of individual workers, including the expansion and 

mandatory use of a photograph database; the aggregation of state drivers' licenses with 

E-Verify; and the creation of biometric work authorization cards, or biometric green cards, 

for all non-citizens. We urge the Senate to remove these provisions, to prevent hacking 

and other privacy breaches, and to avoid the creation of a de facto national ID. 

6 
581 

l) ? ) 

LGBT Concerns with the Border Securitv, Economic Opportunity, and Immigration 

Modernization Act, S.744 

Testimony Submitted to U.S. Senate Committee on the Judiciary 

Hearing: .. The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744" 

Monday April22, 20!3 
582 

Statement of Rachel B. Tiven, Esq., Executive Director, Immigration Equality; Bend the Arc 

Jewish Action; Center Link: The Community of LGBT Centers; Council for Global Equality; 

The Episcopal Church; Family Equality Council; Friends Committee on National Legislation; 

Gay & Lesbian Advocates & Defenders; GetEQUAL; Lambda Legal; Log Cabin Republicans; 

National Center for Transgender Equality; National Gay & Lesbian Chamber of Commerce; 

National Immigrant Justice Center; National Latina Institute for Reproductive Health; 

Out41mmigration;Queer Undocumented Immigrant Project/United We Dream; and 

Transgender Law Center; 

Immigration Equality is a national organization that works to end discrimination in U.S. immigration 

law. to reduce the negative impact of that law on the lives of lesbian, gay, bisexual. transgender 

("LGBT") and HJV -positive people, and to help obtain asylum for those persecuted in their home 

country based on their sexual orientation, transgender identity or IUV -status. Immigration Equality 

>vas founded in 1994 as the Lesbian and Gay Immigration Rights Task Force. Since then we have 

grown to be a fully staffed organization with ottices in New York and Washington, D.C. We are the 

only national organization dedicated exclusively to immigration issues for the LGBT and HIVpositivc 

communities. More than 38.000 activists, attorneys. faith leaders, and other constituents subscribe to 

Immigration Equality's emails and action alerts, and our website has over 380,000 unique visitors per 

year. The legal staff fields over 3,700 inquiries a year from individuals throughout the entire U.S. and 

abroad via telephone, email and in-person consultations. 

We at Bend the Arc Jewish Action believe that our immigration system is broken and needs repair. The 

tools essential for this repair are not barbed wire and drones, but rather justice and equality. 

Center Link: The Community ofLGBT Centers: LGBT families must be included in all aspects of 

immigration refonn if we truly believe in liberty and justice for all. 

Mark Bromley. Chair of the Council for Global Equality: Human rights begin at home, and as 

America's face to the rest of the world, it's important that our immigration laws reflect the equality and 

fair treatment that we seek in the world. 

The Most Rev. Katharine Jefferts Schori, Presiding Bishop and Primate of The Episcopal Church: We 

are pleased to see that the Senate bill contains significant streamlining and expediting of the 

reunification process for citizens and green-card holders. We are gravely disappointed, however, that 

even as many families will experience the joy of reunification, some families and family members 

have been excluded from the Senate bill. As the process moves forward, we will strongly urge the 

inclusion of same-sex partners and spouses in the legislation. Every family deserves to live in unity. 

Family Equality Council believes we must pass comprehensive immigration refom1 that provides for a 

safe path to citizenship. ends unjust detentions and deportations, abolishes the one-year filing deadline 

for asylum-seekers, and preserves the current family-based immigration system- which must include 

bi-national same-sex couples. 
583 

Friends Committee on National Legislation: Believing in the presence of the Light in each person, 

Friends (Quakers) are compelled to uphold the sanctity of the individual. ... Friends seek a society 

free from discrimination, including on the basis ofrace, creed, gender, ethnic or national heritage, 

age, sexual orientation, disability, medical condition, genetic background, and gender identification. 

Freedom from arbitrary or undue governmental intrusion and the equal treatment of all people by the 

state are inherent to each individual's realization of her or his potential. 

In our daily work. Gay & Lesbian Advocates & Defenders sees the devastating impact of 

discrimination on LGBT individuals and families, and we know the issues highlighted in this 

testimony are critical to ending that discrimination. 

GetEQUAL is a national LGBT civil rights organization and Comprehensive Immigration Reforn1 is 

part of our pursue for equality because 267,000 undocumented immigrants identify as LGBT and 

40,000 same-sex binational families are at risk of deportation. We will continue fighting for the full 

inclusion of LGBT people in this bill. 

Because Lambda Legal has long endorsed a path to legalization for undocumented LGBT immigrants, 

and receives hundreds of calls annually from immigrants seeking to stay in the country with spouses or 

partners and their children, and from LGBT immigrants who have endured horrific persecution based 

on who they are, we enthusiastically support SB 744 to protect familial bonds and provide a safe home 

in the United States for those facing persecution. 

Gregory T. Angelo, Executive Director, Log Cabin Republicans: Including provisions for LGBT 

individuals in comprehensive immigration reform isn't just the right thing to do; from a talent 

recruitment and retention perspective, it's the right thing to do for American business. 

The National Center for Trans gender Equality is a national social justice organization founded in 2003 

and dedicated to advancing the equality of trans gender people through advocacy, collaboration and 

empowerment. Recognizing that transgender immigrants are a highly vulnerable population within the 

immigration system, NCTE has led transgender organizations across the country in advocating for 

in1migration reform. 

National Gay & Lesbian Chamber of Commerce: Exclusion ofLGBT people in the immigration bill 

would prevent a powerful business community (business owners, suppliers, employers and a lucrative 

consumer market segment) to thrive in the United States. A non-inclusive CIR shrinks the tax base, 

forces American jobs oversees and creates less jobs for hard-working Americans. 

Every week the National Immigrant Justice Center (NIJC) counsels same-sex couples who are in 

binational families. These clients are often forced to choose between the grim alternatives ofliving 

thousands of miles away from their loved ones-frequently in countries where sexual minorities face 

persecution--{)r in fear of deportation. This is not a choice that the United States government should 

force on any family. 
584 

The National Latina Institute for Reproductive Health, as part of the National Coalition for 

Immigrant Women's Rights, believes that truly inclusive and comprehensive immigration reform 

must ensure equality for all immigrants, regardless of sexual orientation and gender identity, protect 

and promote their civil and human rights, and value the contributions of aspiring Americans to our 

economy and society by providing them access to quality and affordable health care. 

Out41mmigration: Same-sex binational couples must be included in immigration reform and not be 

excluded by Congress, which is forcing us to choose between our families and our country. By 

excluding the more than 40,000 same-sex binational couples, this bill is not inclusive nor is it 

comprehensive. 

Queer Undocumented Immigrant Project/United We Dream: Protecting the unity of all families in 

immigration reform is crucial in our communities, including the unity of same-sex bi-national 

couples, and ensuring a pathway to citizenship is highly important for LGBTQ undocumented people 

and all undocumented people. 

The Transgender Law Center applauds the Senate Judiciary Committee for considering S.744, The 

Border Security, Economic Opportunity, and Immigration Modernization Act. With the passage of 

S.744, transgender detainees will be protected from old policies that subject them to prolonged 

isolation and expose them to higher risk of sexual violence. 

We applaud the Senate Judiciary Committee for convening these hearings and we applaud the Senate 

"Gang of Eight" for introducing The Border Security, Economic Opportunity, and Immigration 

Modernization Act, S.744 ('"S. 744"), a bill which addresses many of the problem areas in our current 

immigration system, and which includes many provisions which would improve immigration options 

and due process for LGBT aspiring Americans. This testimony will address provisions ofS. 744 

which we believe are critical to LGBT non-citizens and their families. 

It is estimated that there are 267.000 LGBT people among the 11 million undocumented. Many of the 

provisions ofS.744 could provide relief for some of these aspiring Americans. LGBT immigrants are 

part of many immigrant sub-communities, from brilliant entrepreneurs, to loving spouses, to youth 

who have seen themselves as Americans their whole lives, to asylum seekers fleeing desperate 

situations to stay alive, to undocumented individuals who came to the U.S. for a better life and are now 

living in the shadows with no means to legalize their status. While we are pleased to see that a 

pathway exists for some of these aspiring citizens to eventually legalize their status, this bill cannot be 

truly comprehensive until it includes LGBT families. 

S.744 Must Include Recognition ofLGBT Family Ties 

Every day Immigration Equality hears from American citizens and lawful permanent residents who are 

struggling to find a means to remain lawfully together with their foreign national partners. Under 

current U.S. immigration law, there is no way for an American to sponsor her partner for immigration 

benefits, regardless of how long they have been together, whether they have formalized their 
585 

relationship, or whether they have children. In fact, studies have shown that among the roughly 

36.000 lesbian and gay immigrant families, more than 46% arc raising children together.' 

S.744 provides no path to citizenship for lesbian and gay families. Although some foreign nationals 

who are present in the United States may be able to qualify for registered provisional immigrant status 

and may ultimately succeed in obtaining citizenship, that route would, at best, take thirteen years. 

Different-sex committed couples are able to file immediately for a green card upon solemnizing their 

relationship, and the foreign national can become a citizen within three years. 

Moreover, many lesbian and gay immigrant families would not benefit at all from S.744. Often. 

finding no means to remain lawfully together in the United States, couples choose to live in exile, in 

one of the more than 25 welcoming countries across the globe which provide immigration benefits to 

same-sex families. For those abroad, the path to citizenship under S.744 does nothing. Likewise, 

many binational couples maintain long-distance relationships at great financial and emotional expense, 

taking long vacations to be together and otherwise maintaining contact through daily calls or Skype; 

these couples also get no relief And finally, many couples remain together only because the foreign 

partner is able to juggle visas and maintain lawful status as a student or on a non-immigrant work visa, 

these couples too will find themselves without a path to legalization. 

Every day Immigration Equality hears from lesbian and gay couples who tell us painful tales of trying 

to maintain their families despite almost impossible odds. 

One of the striking features ofthe statistical analysis perfonned of the 2000 census is how many 

samesex binational couples are raising children together. Almost 16,000 of the couples counted in the 

census- 46% of all same-sex binational couples- report children in the household.;; Among female 

couples, the figure is even more striking, 58% of female binational households include children. The 

vast majority of children in these households arc U.S. citizens.'ii Behind each of these statistics is a 

real family, with real children who have grown up knowing two loving parents. In each of these 

households, there is daily uncertainty about whether the family can remain together. or whether they 

will have to move abroad to new schools, new friends, and even a new language. 

Every day Immigration Equality hears from lesbian and gay couples who tell us painful tales of trying 

to maintain their families despite almost impossible odds. For exan1ple: 

Adi Lavy and Tzila Levy are a loving. married couple. living in Brooklyn. New York. Adi is a 

US. citizen and Tzila a citizen of Israel. The couple met in 2010 and recently married in 

Brooklyn. New York. Adi has suffered(i·om chronic kidney disease since the age of seventeen. 

Tzila is Adi 's primary source of care and emotional support, and she entered the US. on a 

visitor's visa in order to care for her wife while Adi receives life-saving treatment,(rom a 

respected expert in her illness. Because their marriage is unrecognized by thefederal 

government. no other visa was available to Tzila. 

Adi 's health has continued to deteriorate and she has been placed on the kidney transplant list. 

Tzila extended her visitor visa to remain at Adi 's side. but as the end ofTzi/a 's authorized stay 
586 

approached, Adi and Tzi!a were left without a permanent solution for their family. In 

November 2012. the couple submitted a spousal petition for a green card. In January 2013. 

thefamily 's request was denied because Adi and Tzila 's_family lies are not recognized under 

U.S immigration law. Adi.fears that she and her wife could be torn apart. She fears being !efi 

alone ro/{tce her chronic health issues without her primary caregiver and emotional support. 

Without a lasting immigration solution, this family will continue to face a lifefil/ed with 

uncertainty and fear."' 

Adi and Tzila want nothing more or less than any other family; they want to live together, secure in the 

knowledge that they will not be separated. 

The inability to sponsor a partner or spouse is even more devastating to women who are forming 

families. Many couples delay having children in the hope that the family can first stabilize its 

immigration status. For those who do have children, the uncertainty and stress of whether their family 

can remain together is multiplied exponentially. 

Kelly Costello and Fabiola Morales married in Washington DC in the summer of201 I. 

Fa biola. a citizen of Peru, has been living in the United States for six years. where she has 

been earning a degree in nursing. Fa biola also su.ff'ers from multiple sclerosis and is receiving 

experimental treatment at Georgetown University. Kelly is an elementary school teacher. In 

what should be a joyous time.fi!r theirfamily, Kelly is pregnant with flvins. But every day the 

couple must live with the knowledge that when Fabiola 's student visa expires later this year. 

she could have to leave the country and leave her family behind." 

The lack of recognition of same-sex relationships affects not only the individual family, but the larger 

community as well. In many instances, large companies are unable to retain talented workers who are 

forced to leave the United States to maintain their relationships. That is why a growing number of 

businesses have endorsed the Uniting American Families Act. On January I, 2013, a diverse group of 

businesses signed onto a letter to the House and Senate supporting passage ofUAFA or CIR that 

includes UAFA stating: 

"'We have each worked to help American employees whose families are split apart because they 

cannot sponsor their committed, permanent partners for immigration benefits. We have lost 

productivity when those families are separated; we have borne the costs of transferring and 

retraining talented employees so they may live abroad with their loved ones; and we have 

missed opportunities to bring the best and the brightest to the United States when their sexual 

orientation means they cannot bring their family with them."" 

The coalition includes over 30 businesses, such as Marriott, American Airlines, Dow Chemicals, 

Intel,Google, Medtronic,. To these companies it is clear that inclusion ofUAFA in CIR is critical to 

their bottom line, and ability to compete internationally. There are currently at least two dozen 

countries that allow their citizens to sponsor long-term, same-sex partners for immigration benefits.';; 

No Comprehensive Immigration Reform can be truly comprehensive if it leaves out thousands of 

LGBT families. S. 744 must be amended to include lesbian and gay immigrant families. 
587 

S. 744's Path to Citizenship and DREAM Act 

Immigration Equality applauds S. 744 for providing a pathway to legalization for many of the 

unauthorized immigrants who have been in the United States for years and become part of their 

communities. We are particularly pleased to see that S. 744 includes a swift pathway to legalization 

for unauthorized immigrants who were brought to the United States as children and have attended 

school or served in the military here. The DREAM Act is crucial to the LGBT community, and LGBT 

activists have been a strong voice within the fight for immigration rights for these young people. The 

LGBT community stands with the DREAM activists and applauds S. 744 for the inclusion of the 

DREAM Act. We are particularly happy to see that there is no age-out provision inS. 744 for DREAM 

Act eligible applicants. It would be irrational to punish those who were brought to the U.S. as children 

and have been here for a long period thereafter with an arbitrary age cut-off. 

LGBT organizations also believe that it is critical that any immigration reform include a pathway to 

citizenship for unauthorized immigrants in the United States. We are pleased that S. 744 would allow 

unauthorized immigrants to legalize their status relatively quickly and obtain work and travel 

authorization. We are concerned, however. by the length oftime it will take for these individuals to 

obtain full citizenship- thirteen years minimum. We are also concerned that during this lengthy 

period of time, those in registered provisional immigrant ('·RPJ") status will be foreclosed from any 

means-tested benefits as well as from basic health care. Further, we are worried that the "triggers'' to 

legalization, including certification that the border is secure and the clearing of all current immigration 

backlogs, could stretch the legalization process out well beyond the thirteen year minimum. We 

believe strongly that the pathway to citizenship must be clear and achievable within a reasonable, finite 

timeframe. 

S. 744's Family Visa Provisions 

Family unity has been at the heart of the U.S. immigration system for decades. While we understand 

the need to increase employment-based visa numbers to remain economically competitive, this should 

not be a zero sum game. S. 744 eliminates the sibling category of visas and only allows U.S. citizens 

to petition for married sons and daughters if they are below the age of 31. We strongly oppose any 

cuts to the family visa system and believe that family unity must remain the central tenet of U.S. 

immigration law. 

S. 744's Asylum Provisions 

We are very happy to see positive changes in the asylum provisions under S. 744. Specifically, we are 

very pleased to see that S. 744 eliminates the one year filing deadline for asylum applications and 

allows reasonable mechanisms for individuals denied asylum solely because of the deadline to reapply. 

The arbitrary and unfair deadline on asylum cases was imposed in 1996 to fight fraud in the asylum 

system. In fact, by the time the deadline was imposed, other improvements to the asylum system, 

particularly requiring that cases be heard swiftly, and imposing lifetime bars on receiving immigration 

benefits for filing a frivolous claim, reduced the incentive to apply for asylum solely to receive work 

authorization. However, the filing deadline has resulted in harsh consequences for many genuine 

asylum seekers who simply did not tind out about asylum quickly enough or who were unable to focus 

on legal issues during their first year in this country. 
588 

Each year Immigration Equality represents more than 400 LGBT asylwn seekers through direct 

representation and partnerships with pro bono attorneys. These brave individuals literally leave 

everything behind to seek freedom from persecution, violence, and abuse simply because of who they 

are and whom they love. While many political dissidents are aware that if they reach the United States 

they can seek political asylum, there is no way for most LGBT people to know that asylwn is 

potentially available to them based on their sexual orientation or gender identity.'"' The primary 

reason that Immigration Equality's attorneys decline otherwise meritorious cases for legal 

representation is that the asylum seeker has missed the one year filing deadline; S. 744 would remove 

this unjust deadline. 

We are also pleased to see that S. 744 allows asylum officers to conduct full interviews after finding 

that an arriving alien has a credible fear. Currently, asylum and refugee officers receive regular 

training on LGBT asylum issues and have a wTitten training module to follow for these types of cases" 

and immigration judge do not. We therefore support any efforts to expand the categories of cases 

which are heard by asylum officers. 

S. 744 and Detention 

We are pleased to see that S. 744 contains provisions which purport to expand the use of alternatives to 

detention. LGBT individuals are among the most vulnerable people held in immigration detention.' 

Every week, Immigration Equality hears from LGBT individuals who are subjected to verbal and 

physical abuse while detained. For trans gender, as well as lesbian, gay, and bisexual asylum seekers 

who have suffered trauma in their home country. being housed in prison-like conditions while awaiting 

an immigration hearing is terrifying. We frequently hear from trans gender detainees who are placed in 

administrative segregation -solitary confinement purportedly to protect them from potential abusers. 

There, trans gender detainees arc isolated from all other detainees, denied access to vital programs, and 

often denied reasonable access to counsel. If trans gender individuals must be detained, they must be 

detained safely, in housing that protects them from ham1 without blaming the victim for abuse. 

S. 744 would make some important changes to the nation's massive immigration detention system. 

However. by increasing the use of Operation Streamline. expanding the categories of people subject to 

mandatory detention. and increasing the penalties on illegal entry. the bill will unnecessarily increase 

the number of people funneled into the immigration detention system. Mandatory detention is an 

inhumane and expensive practice, and we should not be expanding it. 

We believe that S. 744 should include specific language that recognizes LGBT detainees as 

·'vulnerable" and provides additional protections for them while detained. We also believe that S. 744 

should set statutory boundaries on the limited circumstances when solitary confinement should be used 

and provide oversight protections for those who face solitary confinement. 

S. 744 and the Mandatory E-Verify Program and Biometric Identification Card 

S. 744 includes a gradual requirement that all employers implement E-verify and requires the Social 

Security Administration to explore the creation of enhanced cards that will include biometric data. We 

have some concerns over '·false positives·• in the current E-Verify system. We are also concerned that 
589 

any mandatory data tracking system may .. ouf' trans gender employees if their gender marker, nan1e, or 

outward appearance has changed. We therefore believe that these systems should not include 

unnecessary personal information, such as gender markers, and should include strong privacy 

protections for all workers. 

Conclusion 

We applaud the Senate for holding these hearings and for beginning the conversation on these needed 

reforms. We are hopeful that over the coming weeks, the Senate will amend the bill to provide needed 

relief to LGBT families, to preserve family unity as the heart of immigration law, and to provide a 

clearly achievable path to citizenship for those who are here without status. Too many individuals in 

the United States lesbian, gay, bisexual, transgender, and straight- cannot fully access the American 

dream because of our antiquated immigration system. For LGBT families with young children, 

undocumented youth, and asylum seekers, it is time to pass rational, humane, comprehensive 

immigration reform that fully respects the unique needs and contributions of LGBT immigrants. 

i Family. Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples Under U.S. Law, joint report 

by Human Rights Watch and Immigration Equality. 2006, at 17. 3 available at 

http://www.hrw.org/en/reports/2006/05/01/family-unvalued. n /d. mid. In female binational households. 87% of the 

children were U.S. citizens: in male households, 83% were U.S. citizens I\ See Erica Pearson, "Newlywed lesbians from 

Brooklyn hope feds decide on green-card bid after Supreme Court weighs in on DOMA," NY December 12, 

20 12 available 

"See Pamela Constable, "Federal marriage law may force deportation of many immigrant gay spouses," Washington 

Post, December 29, 2012, available at !J11J2~_J!fli~~'l. \\a.-,hinu!Q.!J.I2Q.5.t.com/10 12-12-29. locaJ:36071393 1 gav-

-~P9.!d;i~blmHiillU!l:g,Q).::£.QJdV1£s-dotl_l'}. \"I Available at 

b.!1R.~"jnml~:nii.m:~£.9J!i~liQact ion run.<l._0_rg_:iw[!es 11 us i n~~Cgi!JJ.ti.ill!..Jii.gnQl}letter. psj£ . 

These countries include Australia. Belgium, Brazil, Canada, Denmark. Finland, France. Germany, Iceland. 

Israel. the Netherlands, New Zealand, Norway, Portugal., South Africa, Spain. Sweden Switzerland. and the United 

Kingdom. See Family, Unvalued, 

See. "The Gay Bar: The Effect of the One-Year Filing Deadline on Lesbian, Gay, Bisexual, Transgcnder, and 

HIVPositive Foreign Nationals Seeking Asylum or Withholding of Removal'" by Victoria Neilson & Aaron Morris, 8 

New York City Law Review 233 (Summer 2005). discussing the disproportionate impact of the one year filing 

deadline on LGBT applicants. lx See, "USCIS Guidance tbr Adjudicating Lesbian. Gay. Bisexual, Transgender and 

Intersex (LGBTI) Refugee and Asylum Claims.'' available at 

http:-' \\ \\'W. usc is. gov. US CJ S.:ll umanjJarian ·'R£J}.J.gtt?.~-Q.~$;;~2QA~.Yl!:!I!.l~MlJmL6.s\" l utl.t~Q.~l:":!m~~~~Ql?sl.cunl'l!Hi.j_~Q. 

and0 'o20Static0 o ...,OFiles RAIO-Trainini!·March-20 12.J~QI~ See. National Immigrant Justice Center, "Stop Abuse of 

Detained LGBT Immigrants,"" http://www.immigrantjustice.org/stop-abusc-detained-Jgbt-immigrants 
590 

Apri122, 2013 

Dear Senate Judiciary Committee, 

Our organization, United Migrant Opportunity Services/UMOS Inc., serves farmworkers. We submit 

this statement for inclusion in the record of the April 22, 2013 Senate Judiciary Committee hearing on 

"the Border Security, Economic Opportunity, and Immigration Modcmization Act, S. 744." We 

believe that immigration reform is of the utmost importance to helping farmworkers and their families 

have the opportunity to lead productive, healthy lives. W c are therefore grateful to you and your 

colleagues, who have spent considerable effort to take into account the interests and knowledge of 

stakeholders in agriculture and to develop legislation to reform our broken immigration system. 

We're very pleased that farmworker and grower representatives have come to an agreement on 

immigration reform for agriculture. This compromise should greatly increase support for 

comprehensive immigration reform and get us closer to dignity for farm workers. As the Border 

Security, Economic Opportunity, and Immigration Modcmization Act of2013 (CIR bill) moves 

through the legislative process, we write to emphasize the importance of labor protections for 

immigrant farmworkers and urge you to ensure that existing worker protections remain in the bill or 

are strengthened. 

The Current Landscape: Greater Protections Needed for Farmworkers 

The lack of authorized immigration status of so many farmworkers contributes to their poor wages and 

working conditions. Fam1workcr wages arc among the lowest in the country. Many cam at or just 

above the minimum wage. Poverty among fam1workcrs is more than double that of all wage and 

salary employees. Few farmworkcrs receive any fringe benefits, such as paid sick leave or paid 

vacation. Decrepit, overcrowded housing is all too common. Health insurance is rarely provided by 

employers and few farmworkers can afford to purchase it on their own. Yet, agriculture ranks among 

the most hazardous occupations. Federal laws on overtime pay and collective bargaining exclude 

farmworkers, as do most federal occupational safety standards and many states' workers' 

compensation systems. 

Such marginalized workers fear joining labor unions, seeking improved job terms, or challenging 

illegal employment practices. Agricultural workers experience rampant violations of employment 

laws, including minimum wage requirements. Frequently, farm operators hire workers through farm 

labor contractors, whom they claim are the sole "employers" for purposes of escaping immigration and 

labor laws. Undocumented workers who challenge illegal employment practices risk losing their job 

and breaking up their families and other dire consequences of deportation. With a roadmap to 
591 

citizenship, all fannworkcrs, including the hw1drcds of thousands of current U.S. workers and the 

newly American, will be on a level playing field. 

The Dairy Industry in Wisconsin is heavily dependent on the usc of foreign born workers. According 

to studies by the University of Wisconsin, more than 4,000 foreign born individuals arc employed in 

dairy tanning. 

The economic impact and significance of this labor source arc enonnous. The viability of the dairy 

industry can only be maintained by immediate and appropriate immigration refonn. 

Roadmap to Citizenship: the Blue Card 

W c arc very pleased that the CIR bill contains a roadmap to citizenship for current and future 

farmworkers and their families. We strongly support the proposal for a ''blue card" program, under 

which experienced undocumented fannworkers and their family members could earn legal 

immigration status, pennanent residency and citizenship within a reasonable period of time and at a 

reasonable cost given their low incomes. Fannworkcrs and their families arc contributing to America; 

it is only fair that they be given an opportunity cam legal immigration status. With a roadmap to 

citizenship, all fannworkcrs, including the hundreds of thousands of current U.S. workers and the 

newly American, will be on a level playing field. An above-board agricultural labor relations system 

will lead to better working conditions, less employee turnover and higher productivity, all of which 

will help ensure a prosperous agricultural sector. The entire food system will benefit by responding to 

consumers' increasing interest in the conditions under which their fruits and vegetables are produced. 

The New Nonimmigrant Agricultural Visa Program 

The new system would end or weaken certain longstanding H-2A labor protections but also would 

provide important new rights. We are very pleased that fannworkers in the proposed future visa 

program will be covered by the Migrant and Seasonal Agricultural Worker Protection Act (A WPA), 

the main federal law that protects fannworkers. The program would also maintain the requirement 

that U.S. workers in corresponding employment receive the same wages and benefits as the visa 

workers (with unfortunate exceptions of housing for certain workers), and it contains a cap to limit the 

number of workers that may be brought in on the visa. We hope that portability provisions of the new 

visa program would offer workers some ability to move from job to job, which should mitigate some 

of the problems in the current H-2A program associated with workers being tied to their employer by 

their visa. However, we note that contract workers in the program will have less freedom to change 

jobs, which could result in labor exploitation. There will need to be protections for contract workers, 

whose employers violate their labor rights. They should be assisted in transferring to another position. 

Some of the other provisions give us pause. The 50% job preference rule in the H-2A program that 

requires employers to hire any ready, willing and qualified U.S. worker up until 50% of the H-2A 

contract period is not in the current bill. The administration of the program by the U.S. Department of 

Agriculture instead of the U.S. Department of Labor causes concern. The Department of Labor has 

significant experience, expertise and infrastructure in operating guestworker programs and protecting 

workers. If this major change is maintained in the legislation, we support that the bill's provision of a 

consultative role for the Department of Labor. 

We note that other reductions in the requirements for and oversight of recruitment of U.S. workers 

could result in U.S. workers being displaced by workers on the visa. Thus, the modest protections for 
592 

U.S. workers that arc included in the current compromise language will be essential to protect the jobs 

of current U.S. workers and future legalizing workers. Further, once the bill is enacted, there will need 

to be stringent enforcement of the protections in the program and labor Jaws protecting farrnworkcrs. 

We applaud the opportunity for nonimmigrant visa farrnworkcrs to eventually apply for green cards 

but we arc concerned that the waiting period could last many years. 

The Broader Legalization Program and Worker Protections in the CIR Bill 

We applaud the bill's broader legalization program. We also strongly support the provisions in the bill 

that aim to protect immigrant and nonimmigrant workers from retaliation and abuse, including the 

protections against abuse in international labor recruitment. Workers' experiences during the 

recruitment process have a substantial impact on their earnings and conditions in the U.S. Many 

temporary foreign workers are charged high recruitment fees, in violation of federal Jaw, to obtain 

employment. To afford those fees and transportation costs, workers often borrow money, frequently at 

high interest rates. Upon arrival in the U.S., these indebted workers, particularly under the H-2A 

program and potentially in the future, arc too fearful of losing their jobs and deportation to challenge 

unfair or illegal conduct. It has often been said that many guestworkers ·'work scared" and therefore 

are compliant and highly productive at low wages in comparison to workers with freedom in the 

marketplace. The recruitment system must be regulated and transparent. Employers that usc 

recruiters for guestworkcrs should disclose to the government the identities of the recruiters, ensure 

workers do not pay recruitment fees, and be responsible for abuses inflicted on workers when they 

have used unlicensed recruiters. 

In conclusion, we strongly support the proposal's road map to citizenship for undocumented 

farm workers and their families. We stress that the future nonimmigrant agricultural visa program is the 

product of a compromise and that its modest labor protections must remain in the bill and be enforced 

effectively in order for the program to be workable and fair. Thank you again for your efforts to bring 

fannworkers one step closer to gaining legal status and the much-earned recognition for their 

contributions to the United States. 

Sincerely, 

John Bauknecht 

Corporate Attorney 

United Migrant Opportunity Serviccs/UMOS Inc. 
593 

STATEMENT OF 

WADE HENDERSON, PRESIDENT & CEO, 

THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS 

HEARING ON 

THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION 

MODERNIZATION ACT, S.744 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

APRIL 22, 2013 

Chairman Leahy, Ranking Member Grassley, and members of Committee: I am Wade Henderson, 

President and CEO of The Leadership Conference on Civil and Human Rights. I appreciate the 

opportunity to present the views of The Leadership Conference for inclusion in the record of today's 

hearing on S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act'' 

The Leadership Conference on Civil and Human Rights is the nation's oldest and most diverse coalition 

of civil and human rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and 

Roy Wilkins, The Leadership Conference seeks to further the goal of equality under law through 

legislative advocacy and public education. The Leadership Conference consists of more than 200 national 

organizations representing persons of color, women, children, organized labor, persons with disabilities, 

the elderly, gays and lesbians, and major religious groups. I am privileged to bring the voices of this 

community to today's hearing. 

Comprehensive Immigration Reform, a Matter of Civil and Human Rights 

The Leadership Conference is extraordinarily pleased that Congress is making a concerted effort to move 

forward this year with a full-scale overhaul of our nation's immigration system. While my staff and I are 

continuing to study the details of S. 744, and while there are likely to be a wide range of opinions about 

the bill as it moves forward. I would like to begin my statement by setting out what I hope are a few 

general points of agreement. 

First, I believe that everyone in this debate can agree that our nation's immigration system is badly 

broken. It fails to keep up with economic realities, it fails to provide an orderly way to keep track of who 

is here, it inhumanely separates families and keeps them apart, it penalizes children for the actions of their 

parents, and it is so unfair and so burdensome that it fails to give people enough incentives to play by the 

rules. America's immigration system clearly needs sweeping changes, and it needs them soon. 

Second, I think we can also agree that in fixing our immigration system, it is vital that we include more 

realistic and more humane immigration enforcement. For many reasons, it is undoubtedly important to 

know who is coming here and under what circumstances, and to protect communities from people who 
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would do us hann when they have no authorization to be here. Yet as evidenced by record-high numbers 

of deportations in the past four years, the notion that the laws are not being enforced is simply not true. 

The real problem. when it comes to enforcement, is that ongoing efforts particularly since the 

implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 -too often 

take a heavy-handed and even cruel approach. Countless numbers of immigrants - regardless of their 

legal status - are needlessly locked up and removed, even when detention and deportation do not serve 

the public interest, because immigration judges and other officials no longer have the ability or the 

incentive to exercise common sense. At the same time, many of the most complicated and sensitive 

decisions involving immigration law enforcement are being made in many parts of the country by 

untrained state and local Jaw enforcement officials, or worse, by private for-profit corporations that have a 

financial incentive to lock up as many people as possible. 

As a nation, we can and should take more sensible measures, such as hiring additional inspectors and 

border patrol agents to work in ports of entry, making better use of technology, and working more closely 

with Mexico to cut down on problems like human trafficking and the drug trade. At the same time, 

enforcement efforts must ensure due process and protect the civil rights of all people who are affected. 

Third- and while this, of course, has long been the subject of contentious debate I would hope that we 

might come to agree on the importance of giving unauthorized immigrants, living and working in our 

country, a realistic way to come out of the shadows and legalize their status. As a lifelong civil rights 

advocate, I see this not as an issue of economics but of morality. and I believe it goes directly to our most 

basic understanding of civil and human rights. 

It is easy to focus on the fact that many immigrants have broken the rules in order to get or stay here. We 

do not condone violations of our immigration laws. But as we do in most other circumstances, we should 

also look at why these individuals have broken the rules. Motives count. And the overwhelming majority 

of unauthorized immigrants have broken the rules not to "steal jobs," to live off the government, or to 

take advantage of anyone else. Instead, most of them have been motivated, to the point where many have 

even risked their lives to come here, by the desire to escape economic or political hardships that few 

native-born Americans today could fully understand. At the same time, they are all too often enticed here 

by employers who are perfectly willing to use and abuse them in the process. 

When we consider the motives of most of the unauthorized immigrants who live and work in our country, 

it is clear to The Leadership Conference - and hopefully to everyone -that our policies should not treat 

them as tugitives to be hunted down. but as an economic and social reality that must be addressed in a 

thoughtful manner that best serves our nation and our communities as a whole. For example, unauthorized 

immigrants should not be so afraid of law enforcement, due to their immigration status, that they refuse to 

report crimes in their own neighborhoods. When they go to work, they like all humans have a right to 

know they will be treated safely and paid fairly, which protects the interests of native-born workers as 

well. If they drive on our roads, it is in the interest of everyone to make sure they are doing so safely. 

Regardless of how they may have initially come here, if they show a willingness to play by the rules and 

contribute to our economy and our society, we should have policies in place that will reward their hard 

work. At the very least, I would hope that we can agree that punishing the children of unauthorized 

immigrants for the actions of their parents is nothing short of insane, and is an affront to our deepest 

values and constitutional traditions. 
595 

Page 3 of8 

Finally, we believe that family unity should be a key foundation of our immigration laws, in the same 

way that it is a key foundation of our society itself. Sadly, our current immigration system is chronically 

plagued by administrative backlogs in the family-based visa process, as well as by the woefully 

inadequate numbers of family-based visas that become legally available each year. As a result, it can 

often take years or even more than a decade for close relatives of U.S. citizens or pem1anent residents to 

obtain immigrant visas, and these delays simply encourage people to overstay temporary visas or find 

other ways to enter the country in order to be with their loved ones. Other families are kept apart by 

outright discriminatory federal policies, particularly the wrongly-named Defense of Marriage Act of 

1996. Addressing these and numerous other problems in our immigration system is an essential 

component of the modem civil and human rights agenda. 

Immigration Reform and the African-American Workforce 

I am mindful that these are challenging times to take up an issue like immigration reform. Our economy is 

continuing to struggle. leaving far too many of Americans uncertain about their jobs and their economic 

well-being. Most recently. a horrifying act of terrorism in Boston has caused some to argue very 

wrongly, in my opinion that we should further delay fixing the massive, long-standing problems in our 

national immigration system. To the contrary, I believe the need for immigration reform remains as strong 

as ever. 

That said, I would like to tum to another important yet complicated issue that affects the immigration 

reform debate: the impact that immigration has on minority communities, particularly African Americans. 

Needless to say, this topic has generated a great deal of controversy, particularly in recent years as our 

economy has struggled, and African Americans have faced much higher unemployment rates than usual. 

I certainly share the legitimate concerns about unemployment and underemployment among African 

Americans. Indeed, advancing policies that would address these concerns has been one of my highest 

priorities throughout my career. The needs of low-wage workers a group disproportionately composed 

of African-American workers have long been neglected by policymakers, a situation that has needlessly 

exacerbated tensions between the African-American and immigrant communities. Many African 

Americans, as a result of the difficult economic conditions they face, understandably fear that the 

immigrant workforce will worsen their situation as the competition for jobs in our struggling economy 

reduces the opp01tunities and the wages of all vulnerable workers. Yet having said this, I do not share the 

simplistic and divisive view, advanced by some, that immigrants are to blame for "stealing jobs" on any 

widespread scale from native-born Americans. 

The Impact of Immigration on African-American Employment 

The situation facing African-American workers is a complicated one, and the impact of immigration on 

the employment prospects and the wages of African Americans is the subject of much debate among 

economists. As economists such as Steven Pitts of the Center for Labor Research and Education at the 

University of California have pointed out, for example, the employment crisis facing African Americans 

began long before our nation took a more generous approach to immigration policy in 1965. Looking at 

overall unemployment rates over the last half century, we see that the unemployment rate for African 

Americans has always been approximately twice as high as for White Americans, and has remained 
596 

Page 4 of8 

approximately the same' even as the percentage of foreign-born Americans, relative to the population as a 

whole, has increased in the past several decades: 

Year Black Unemployment White Unemployment Black/White Unemployment Ratio 

1956 8.3% 3.6% 2.3 

1965 8.1% 4.1% 2.0 

1975 14.8% 7.8% 1.9 

1985 15.1% 6.2% 2.4 

1995 10.4% 4.9% 2.1 

2005 10.0% 4.4% 2.3 

As most economists would explain, this employment cns1s has a wide variety of causes that are 

remarkably difficult to sort out. These causes include both historical and contemporary racial 

discrimination, not only in the labor market, but also in other sectors of society such as housing markets, 

educational systems, and consumer finance. The higher rates and the lasting stigmatic effects of 

incarceration of African-American males are also significant. 2 Disparities in health care are both a cause 

and a consequence of unemployment.' In addition, the situation has certainly been compounded by 

broader changes in the U.S. economy as a whole, including the globalization of the economy and the 

movement of many types of jobs overseas. 

As to the question of whether immigration might play a role in aggravating the long-existing causes of 

African-American unemployment, economists who have studied the issue have not been able to establish 

any sort of consensus4 Even among experts who do think there is an impact, there is disagreement over 

its extent. For example, Bernard Anderson, an economist at the University of Pennsylvania's Wharton 

School, believes that while immigrants have probably taken some jobs previously performed largely by 

African Americans, there is also evidence that African Americans are less likely to perform low-skill 

service jobs because they have largely moved on to take better-paying jobs or have retired from the labor 

force. The displacement that has taken place, Anderson argues, has not had a significant effect on the 

wages or opportunities of native-born workers-' Another study, by the Immigration Policy Center, found 

that in states and metropolitan areas with high levels of recent immigrants, unemployment among African 

Americans was actually lower than in areas with low levels of recent immigrants 6 Finally, a study by the 

1 U.S. Department of Labor, Bureau of Labor Statistics: also Council of Economic Advisors, Changing America: 

Indicators of'Social and Economic Well-Being by Race and Hispanic Origin, Sept. 1998, at 26. 2 See, e.g., Jenny Bussey and John Trasvifta, Racial Prelerences: The Treatment of' White and Afi·ican American Job 

Applicants by Temporary Emplo.rment Agencies in California, Discrimination Research Center, Dec. 2003; Devah 

Pager, The Mark of' a Criminal Record. AMERICAN JOt:RNAL OF SOCIOLOGY 1 08(5): 937-75. 3 Kristen Suthers. Evaluating the Economic Causes and Consequences of' Racial and Ethnic Health Disparities, 

Issue Brief, American Public Health Association, Nov. 2008. 4 See, e.g., Harry J. Holzer, Immigration Policy and Less-Skilled Workers in the United States: Reflections on Future 

Directions fi>r Ref'orm, Migration Policy Institute, Jan. 2011: Roger Lowenstein, The Immigration Equation, THE 

NEW YORK TiMES, July 9. 2006. 5 The Immigration Debate: Its Impact on Workers. Wages and Employers, KNOWLEDGE@ WHARTON, May 17, 2006, 

ava if able at http :!/know ledge. wharton. upenn .edu/ artie le.efin ?artie leid~ 1482. 6 Immigration and Native-Born Unemployment Across Racial/Ethnic Groups: Untying the Knot. Part I! of ll!, 

Special Report, Immigration Policy Center, May 2009. 
597 

Page 5 of8 

Economic Policy Institute found that any negative effects of new immigration were felt largely by earlier 

immigrants, the workers who are the most substitutable for new immigrants. 7 

Policies Aimed at Improving Conditions for Low-Income Minority Workers 

As explained above, economists simply do not and perhaps cannot- know with certainty the full extent 

of the displacement of African-American workers by new immigrants. As such, I reject the sweeping. 

simplistic, divisive indictments of immigrants that have been offered by some advocates, and I urge this 

Committee to do the same. At the same time, I do recognize that it is possible that unskilled, native-born 

workers have been or could be - displaced by increased immigration. There is certainly anecdotal 

evidence to that effect, even as the overall body of statistical evidence is far less clear. In any event, the 

prospect of job displacement caused by immigration has long caused concerns within the AfricanAmerican community a fact that has been exploited by some to drive a wedge between African 

Americans and Latinos. 

For these reasons, The Leadership Conference takes the underlying concerns about job displacement very 

seriously. Because the unemployment crisis facing African Americans has a wide variety of causes, 

however, we believe that efforts focusing on widespread deportation - or on making immigrants feel so 

unwelcome that they "self~deport," as some have proposed' miss the mark completely. 

There are numerous policy proposals that academics and advocates have advanced to assist low-wage 

native-born workers. The Leadership Conference is proud to have contributed to these ideas. In early 

2007, we organized a summit of leaders from African-American, Latino. and Asian-American 

communities to discuss how the concerns of low-income workers might best be addressed in the ongoing 

debate over immigration reforn1. The organizations and leaders involved in those discussions produced a 

statement of principles and legislative recommendations that we urged Congress to take up as a part of 

comprehensive immigration refonn. These recommendations call upon Congress to provide for: 

Better enforcement of antidiscrimination laws, through testing and other measures, and enhanced 

public education efforts to counter stereotypes about immigrants and African Americans; 

More open vacancy notification systems, to overcome the use of informal networks of friends and 

relations to fill low-wage jobs. which reduces job competition; 

Increased enforcement of workplace standards, including fair wage and overtime requirements, 

and safety, health and labor laws; 

Making it easier for workers to compete for jobs in other locations through better advertising of 

unskilled jobs and the allocation of resources to pursue and relocate for them; and 

More job skills. training and adult education opportunities for low-wage workers. including 

young people and high school dropouts. 

During the 2007 debate in the Senate over comprehensive refonn legislation, we worked with Sen. 

Sherrod Brown (D-OH) on an amendment focusing on the second point above, as a starting point. His 

7 Heidi Shierholz.lmmigration and rVages: Methodological Advancements Confirm Modest Gains for Native 

Workers, Briefing Paper, Economic Policy Institute, Feb. 2010. 8 See, e.g .. Mark Krikorian, Not Amnesty but Attrition: TheW~· to go on Immigration, National Review, Mar. 22, 

2004. 
598 

Page 6 of 8 

amendment would have required employers who want to hire immigrant workers, under the temporary 

employment visa provisions of the bill, to show that they have advertised - and to continue to advertise, 

for one year all similar job vacancies with the state employment service. The requirement would have 

been extended to all vacancies that require comparable education, training, or experience as the job to be 

given to an immigrant worker. It would have helped ensure that native-born workers became aware of, 

and had the opportunity to apply for, job openings before employers resorted to hiring immigrant 

workers. Unfortunately, the Senate deliberations over immigration reform collapsed before Sen. Brown 

was able to offer his amendment. We believe, however, that his proposal could have earned widespread 

bipartisan support, and it would have been an important and constructive step in addressing the concerns 

of low-income minority workers. 

I would urge Congress to move forward with all of these proposals - and I would note that they can be 

enacted even in the absence of comprehensive immigration refonn legislation. By doing so, our elected 

officials can provide low-wage African-American workers with much-needed assistance, and can help 

mitigate tensions between African-American and immigrant workers. I would also urge the Subcommittee 

to consider a 2009 blueprint for immigration reform that was jointly issued by the two American labor 

federations, the AFL-CIO and Change to Win, together representing more than 60 different unions and 

about 16 million American workers. Their proposal, entitled Framework for Comprehensive Immigration 

Rejbrm,' meets many of the concerns expressed in the African-American community by providing for the 

fair and humane treatment of immigrants, on one hand, and preventing immigrant workers from being 

exploited and used to undercut work standards to the detriment of native-born workers, on the other. 

So-called "Black vs. Brown" in the Immigration Debate: Perceptions and Realities 

Before I conclude, I would like to say more about the misperceptions about relations among African 

Americans and Latinos. misperceptions that some immigration reduction advocates have attempted to 

foster, in recent years. in an effort to pit community against community with the goal of preventing 

immigration reform. In 2007, for example, a group that called itself the Coalition for the Future American 

Worker, organized primarily by immigration reduction organizations, deliberately attempted to stir up 

African-American resentment toward immigrant communities and immigration reform by running fullpage newspaper ads that blamed immigrants for taking hundreds of thousands of jobs from African 

Americans. 

As with any controversial issue and immigration reform is undoubtedly a controversial issue - there 

inevitably will be a range of individual opinions within any community. But on the whole, the 

relationship between the African-American community and immigrant communities has long been far too 

complex to neatly summarize in a newspaper ad. 

On one hand, as minority groups in America, African Americans and immigrants share a strong common 

interest in fairness and equal opportunity. Indeed, because the immigrant community includes many 

individuals of African and Caribbean descent, including those admitted under the diversity visa program, 

African Americans do have a direct interest in fair immigration policies. For these reasons. the traditional 

civil rights movement was instrumental in eliminating discriminatory immigration quota laws in favor of 

9 Available at http:iiwww.aflcio.org/content/download/60511i85462liUnityFrameworkAug2009.pdf 
599 

Page 7 of8 

more generous policies in the 1960s, and leading civil rights organizations have continued to speak out on 

behalf of immigrants' rights since then. 

On the other hand, as I have explained above, it is clear that many African Americans, pat1icularly those 

who struggle the most to make ends meet in today's economy, are concerned about the way their 

economic well-being is affected by increased immigration. Time and time again, immigration reform 

opponents focus only on these anxieties while ignoring the common ground that exists. For example, 

following the August 2008 immigration enforcement raid at Howard Industries in Laurel, Miss., 

immigration reduction advocates focused on a segment of some African-American workers who 

apparently celebrated the arrests, as an example of the divide between native-born and immigrant 

workers, while ignoring the fact that the African-American leadership at Howard Industries' union 

supported signing up Latino workers and forging solidarity to improve the living standards of all 

employees. 

Contrary to what the propaganda of some groups might suggest, African-American concerns about the 

effects of immigration do not, on the whole, lead to any widespread resistance to the legalization of 

unauthorized immigrants or the other elements of comprehensive reform. Our own public opinion 

research confirms this. Last month, Lake Research Partners conducted telephone polling of 805 AfricanAmerican likely voters nationwide. 

Our most recent polling finds that 75 percent of respondents rate the economy negatively, and 54 percent 

worry that they or someone in their household will lose a job in the coming year. With respect to 

immigrants, 45 percent of respondents believe that immigrants take jobs away from Americans, and 51 

percent believe that they drive down wages for Americans. Despite these fears, however, we found that 

66 percent of respondents supported comprehensive immigration reform that includes increased border 

security, penalties on employers of illegal workers, and criteria for a path to citizenship, with only 16 

percent opposing such refonns. Furthermore, 72 percent of respondents (69 percent in the Deep South) 

have a favorable impression of immigrants, with 68 percent believing they contribute to our economy and 

communities. Only 39 percent believe that immigrants drive down wages for African-American workers, 

a 20 percent decline since we conducted similar polling in 2007. Finally, our research in this and previous 

years confirms that strong majorities of African Americans believe that they can work together with 

immigrant communities on common social and economic goals such as expanding access to health care 

and education, reducing crime, and improving wages, work benefits, and job opportunities .tO 

In short, African Americans generally understand that it is inherently wrong to divide people along the 

lines of race or ethnicity or national origin, and that creating "us versus them" scenarios does not help 

anyone in the long run. [f Congress did more to protect low-income, native-born workers, as a part of 

immigration reform or even independently, and consistent with the principles I outlined above, the 

numbers I have just cited would be even more favorable. 

10 Polling conducted by Lake Research Partners. for The Leadership Conference on Civil Rights & Leadership 

Conference on Civil Rights Education Fund, March 25-30, 2013, among 805 African-American likely voters. The 

results are consistent with similar polling conducted for us by Lake Research Partners, December 8-17,2007. among 

700 African-American voters. 
600 

Page 8 of 8 

Finally, I would like to add that African Americans do tend to take note of how consistently - or 

inconsistently - immigration advocates show their concern for the well-being of the African-American 

community across the board. Unfortunately, evidence of that concern is often sorely lacking. 

For example, from the 2006 reauthorization through the Supreme Court case that is now awaiting a 

decision, the Voting Rights Act- the most important civil rights law governing our most important civil 

right - has been under steady attack by many of the same groups and individuals who claim to be 

interested in protecting black Americans from the effects of immigration. As the 2008 financial crisis 

began, many of those same individuals dishonestly blamed the Community Reinvestment Act, a decadesold civil rights law that could have in fact reduced predatory subprime lending if it had been more 

uniformly applied. 11 More recently, many have supported budget policies that drastically cut spending in 

areas that are most important to African Americans such as education and health care, in order to protect 

millionaires or defense contractors from making sacrifices. Finally, some immigration reduction 

advocates have even gone so far as to propose rewriting the 14'h Amendment of our Constitution, 12 

striking at a core foundation of our nation's civil rights protections that is deeply cherished by most 

African Americans. While there are certainly exceptions, 13 it is clear that immigration reduction advocates 

have rarely gone out of their way to be our friends. 

This concludes my remarks. Thank you for the opportunity to have my thoughts included in the record of 

today's hearing. I would be happy to answer any questions you may have. 

11 Myths about the Community Reinvestment Act (CRA) contributing to the financial crisis have been thoroughly 

debunked by experts, but nevertheless continue to proliferate. See, e.g., letter from Federal Reserve Chairman Ben 

Bemanke to Sen. Bob Menendez (0-NJ), Nov. 25, 2008, available at 

http://menendez.senate.gov/pdflll2508ResponsefromBernankeonCRA.pdf(explaining that he found no evidence to 

support the claim that the CRA was to blame for the mortgage crisis). 11 See, e.g., H.R. 140/S. 301, the Birthright Citizenship Act of2013. 13 I would certainly note, for example, the bipartisan effort that resulted in the enactment of the Fair Sentencing Act 

of2010, which will help reduce racial disparities in cocaine sentencing. Its champions in Congress included a 

number of prominent opponents of comprehensive immigration reform. 
601 

LIST OF FAITH-BASED ORGANIZATIONS

AI-Wafaa Center for Human Services 

Asamblea de Derechos Civiles 

Casa Guadalupana House of Hospitality, St. Paul (house of hospitality rooted in the 

spirit of Dorothy Day and the Catholic Worker Movement 

Catholic Charities of St. Paul and Minneapolis 

Center for Public Ministry@ United Theological Seminary 

Cherokee Park United Church 

Church of All Nations 

Church World Service CROP, Minnesota 

Community of St. Martin, Minneapolis 

Conversations With Friends (detained immigrant visit program sponsored by 

Interfaith Coalition on Immigration) 

Episcopal Church in Minnesota 

Faith Mennonite Church, Minneapolis 

Immigration Task Force of the Northeast Synod- Evangelical Lutheran Church in 

America 

Immigration Team ofthe Minnesota Conference United Church of Christ 

Interfaith Coalition on Immigration 

International Association for Refugees 

ISAIAH Core Team Mayflower United Church of Christ, Minneapolis 

ISAIAH Mn. 

Islamic Center of Minnesota 

Islamic Civil Society of America 

Islamic Community Center of Minnesota 

jewish Community Action 

justice and Witness Team of the Minnesota Conference United Church of Christ 

Minneapolis Area Synod - Evangelical Lutheran Church in America 

Minnesota Annual Conference of The United Methodist Church 

Minnesota Catholic Conference 

Minnesota Council of Churches 

Minnesota Unitarian Universalist Social justice Alliance 

Msjid Al-lman 

People of Faith Peacemakers 

Sisters of St. joseph of Carondelet & Consociates 

Southwest Minnesota Synod - Evanvelical Lutheran Church in America 

St Frances Cabrini, Minneapolis 

St. joseph the Worker Catholic Church, Maple Grove 

St. Paul Area Synod- Evangelical Lutheran Church in America 

Transform Minnesota- regional evangelical network of churches from nine 

evangelical denominations 

World Relief Minnesota 
602 

Witness List 

Hearing before the 

Senate Committee on the Judiciary 

On 

·'The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744" 

Tuesday, April 23, 2013 

Hart Senate Office Building, Room 216 

9:30a.m. 

The Honorable Janet Napolitano 

Secretary 

United States Department of Homeland Security 

Washington, DC 
603 

The Honorable Janet Napolitano 

testifying before the 

United States Senate 

Committee on the Judiciary 

Comprehensive Immigration Reform Legislation 

April 19, 2013 

Hart Senate Office Building, Room 216 

Washington, D.C. 

Thank you, Chairman Leahy, Ranking Member Grassley, and Members of the Committee for 

holding this noteworthy hearing today on the Border Security, Economic Opportunity, and 

Immigration Modernization Act. It is a pleasure to again appear before the committee, especially 

for such an occasion. 

We are very encouraged by the work of this committee. I also want to commend the solid 

bipartisan work of eight senators and their staff to fashion a commonsense immigration reform 

bill that will address the most serious problems -with our current system. The introduction of this 

legislation is an important first step that reflects significant momentum toward our shared goal to 

reform the nation's immigration laws. 
604 

As the President stated earlier this week, this bill is clearly a compromise, and there are some 

things we don't agree on, but the bill is largely consistent with the President's principles on 

commonsense comprehensive reform. The bill would continue to strengthen security at our 

borders and hold employers more accountable if they knowingly hire undocumented workers. It 

would provide a pathway to earned citizenship for the II million individuals who are already in 

this country illegally. It would also modernize our legal immigration system, allowing families 

to be reunited in a humane and timely manner and grow our economy by attracting the 

highlyskilled entrepreneurs and workers who will help create good paying jobs. These are all 

commonsense steps that the majority of Americans support. The President and I. as well as the 

rest of the Cabinet. stand willing to do whatever it takes to make sure that comprehensive 

immigration reform becomes a reality as soon as possible. DHS is ready to work directly with 

this Committee to further refine the bill and pass the much-needed reforms that will help make 

our border safer and our country stronger. 

America is a nation of immigrants and a nation of laws. Our history is rooted in immigration. At 

every great and momentous occasion throughout our proud history, immigrants, and the 

immigrant experience, have contributed to the richness of our culture, the strength of our moral 

character, and the advancement of our society. 

As I noted in my testimony before the committee in February, DHS secures our Nation's borders 

to prevent the illegal entry of people. drugs. weapons, and contraband, while fostering legal trade 

and travel. We enforce immigration laws to protect public safety, promote economic fairness 

and competition. and maintain the integrity of our immigration system. We administer legal 

immigration benefits and services to millions of new and aspiring Americans, including 

members of our Am1ed Forces. And we work with a range of Federal, state, tribal. local, 

territorial, and international partners to advance all of these efforts, while ensuring that the civil 

rights of affected communities are respected. 

W c have made great strides in each of these areas over the past four years and, indeed, since the 

department's founding ten years ago. In order to build on this strong record, America needs a 

21" century immigration system that meets the needs of law enforcement, businesses, 

immigrants, communities, and our economy. The current patchwork of outdated laws and 

requirements fails in each of these areas, and we are hopeful that this new bipartisan legislation 

will address each of these needs. We know what needs to get done to mend this broken system. 

to change our laws to create a 21st century system and one that lives up to our proud traditions. 

The principles lc>r l'<ltnmntbcn,;c immigration rct(wm are cncompa"cd in the Border Security. 

Economic Opportunity, and [mmigration Modernization Act. 

Stronger Border Security and Immigration Reform 

These principles begin'' ith continuing to focus on securing our borders. Over the past four 

years. the Obama Administration has made historic investments in border security, adding more 

personnel. technology. and infrastructure; making our ports of entry more efficient to lawful 

travel and trade; deepening partnerships with federal, state. tribal, and local law enforcement, and 
605 

internationally; improving intelligence and information sharing to identify threats sooner; and 

strengthening entry procedures to protect against the use of fraudulent documents and the entry 

of those who may wish to do us harm. We are proud of these achievements, which reflect the 

hard work of many DHS agents and officers and our partners, who work long hours and often at 

great personal risk. 

These efforts have contributed to a border that is far stronger today than at any point in our 

nation's history, and border communities that are safe and prosperous. Since 2004, we have 

doubled the number of Border Patrol agents from approximately 10,000 in 2004 to more than 

21,000 today. Even in a time of fiscal austerity. the President's budget includes adding nearly 

3,500 additional Customs and Border Protection Officers to reduce growing wait times at our 

land. air, and sea ports of entry. while also increasing seizures of illegal items and counterfeit 

goods, and protecting our country from national security or public safety threats. Along the 

Southwest border, the number of Border Patrol agents has increased by 94 percent to nearly 

18,500. Along the Northern border, we now have more than 2,200 Border Patrol agents. 

To facilitate the secure flow of people and goods, we have also increased the number ofU.S. 

Customs and Border Protection (CBP) officers ensuring the secure flow of people and goods into 

our nation also has increased from 17,279 customs and immigration inspectors in 2003 to more 

than 21,000 officers and 2.400 agriculture specialists today. 

CBP also has deployed proven, effective technology to the border tailored to the operational 

needs of our agents on the ground. In addition. we have expanded unmanned aerial surveillance 

to the entire Southwest border and strengthened our air and marine interdiction capabilities. 

The results of these efforts speak for themselves. Attempts to cross the Southwest border 

illegally, as measured by Border Patrol apprehensions, have decreased 49 percent over the past 

four years, and are 78 percent lower than what they were at their peak. Since 2009, DHS has 

also seized 71 percent more currency, 39 percent more drugs, and 189 percent more weapons 

along the Southwest border, compared to the previous four year period. Further, since 2008, 

crime in each of the four Southwest border states-Arizona, California, New Mexico, and 

Texas-has decreased significantly. 

To build on these successes. cflc>rts t<• strengthen security at nur 8nrdcrs must C(>ntinuc. The 

President's proposal identified continued use of proven technologies to secure the land and 

maritime borders. strengthening and improving infrastructure at ports of entry, expanding smart 

enforcement efforts that target convicted criminals in correctional facilities, and cracking down 

on criminal networks engaging in passport and visa fraud and human smuggling, and improving 

partnerships with border communities and law enforcement. 

I am pleased to see that the Border Security, Economic Opportunity, and Immigration 

Modernization Act. included similar provisions that would help us accomplish these efforts. In 

particular, funding for the Department to continue deployment of proven, effective surveillance 

technology along the highest tratlicked areas of the southwest border will help us continue to 

achieve record levels of apprehensions and seizures. Funds will be used to procure and deploy 

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606 

technology tailored to the operational requirements of the Border Patrol, the distinct tenain, and 

the population density within each sector. These provisions will allow us to sustain and build on 

our progress and ensure a border region that is safe and thriving. 

Strengthening Emplovee Tools and Employer Verification 

One of the best ways to reduce illegal migrant traffic across the border- and thereby strengthen 

border security is by reducing opportunities for unauthorized work in the United States. We 

believe a mandatory employee verification system combined with stronger tools to help 

employers maintain a legal workforce will help us achieve that goal and should be part of any 

comprehensive immigration refonn package. 

The President's proposal calls for a mandatory, phased-in electronic employment verification to 

provide tools for employers to ensure a legal workforce and increases the penalties for employers 

who hire undocumented workers to skirt the workplace standards that protect all workers. The 

President's proposal also calls for protecting workers against retaliation for exercising their labor 

rights and ensuring confidentiality and privacy protections for personal information. 

The Border Security, Economic Opportunity, and Immigration Modernization Act includes many 

of these proposals. The bill mandates a national system that would be phased in over 5 years, 

starting with federal government and critical infrastructure employers and ending with small 

employers and the agricultural industry. This timeline is essential for the Department to ensure 

that the System meets the needs of every employer in the country-the majority of which do not 

cunently participate in the system-and the diversity of our workforce. The bill also includes 

identify fraud measures such as the ability for individuals to lock their own Social Security 

number or for the Department to lock suspected fraudulent use of Social Security numbers. 

Businesses of all kinds and sizes must be able to find and maintain a stable, legal workforce, and 

have confidence that they are all playing by the same set of rules. When businesses break the 

law by hiring undocumented workers. it undercuts lawful businesses, creates an uneven playing 

field, and hurts all workers, affecting wages, employee safety, and creating further demand for 

illegal labor. 

The employment verification system proposed in this bill will support stronger border security, 

the integrity of our immigration system, and the American economy, by providing businesses 

with a clear, free. and efficient means to determine whether their employees are eligible to work 

in the United States. By helping employers ensure their workforce is legal, electronic 

verification promotes economic fairness and a level playing field, prevents the illegal hiring that 

serves as a magnet for further undocumented immigration across our borders, and protects 

workers from exploitation. 

The President's 2014 Budget includes $114 million to operate E-Vcrify, improve the system's 

fraud-prevention and detection capabilities. modernize E-Verify customer service to improve 

ease of uses, and build additional capacity to support continued expansion. The Budget also 

enhances E-Verify Self Check. an online service that provides U.S. workers with the opportunity 

3 
607 

to ensure employment authorization records are accurate before getting a job and improves 

employee understanding of the employment eligibility process. 

We also believe that the penalties proposed in the bill for hiring undocumented workers serve as 

a further disincentive to illegal hiring. In combination with DHS's existing worksite 

enforcement strategy, these measures would significantly reduce the jobs magnet that drives 

much of the illegal t1ow across our borders and enhance border security. 

Earned Legalization with a Path to Citizenship 

Equally important, the President's framework for commonsense creates a mechanism to bring the 

millions of undocumented immigrants unlawfully present in the United States out of the shadows 

and into a legal, regulated pathway to earned citizenship. No one questions that those unlawfully 

in the United States should be held accountable for their actions. But they are here, and in many 

cases they have been in the United States for years, have raised families here, and are now 

contributing members of our communities. Removing all of them is not only impractical and 

cost-prohibitive, but inconsistent with our values. 

For immigration reforn1 to be successful, we believe these individuals should have a clear 

pathway to earned citizenship. But it must be C\ icknt ti·om the outset that there is such a 

putlmay and it is attainable. It \\Oil.t be a quick prnccss but it must be a ft1ir process. The 

President's l!·amc\1 ork pro;idcs such a wad map. lt requires immigrants to register, submit 

biometric data, pass criminal background and national security checks, and pay fees in order to 

be eligible for provisional legal status. These individuals with provisional status would have to 

wait until the current legal immigration visa waiting lists are cleared and pay penalties before 

being able to apply for lawful permanent residency, and ultimately, United States citizenship. We 

also believe childhood arrivals-known as DREAMers--should be eligible for earned 

citizenship. Additionally, immigrant farm workers, many of whom are currently undocumented, 

must be provided a similar opportunity to get on the right side of the law. 

Again, the Border Security, Economic Opportunity, and Immigration Modernization Act is 

consistent with the President's framework. This bill would allow individuals in the United States 

by December 31, 2011 to apply for registered provisional immigrant status. and eventually 

obtain permanent residence and citizenship. It's not an easy path. They will need to comply 

with many requirements, including documenting a history of work, paying penalties and taxes, 

and learning English. DREAMers and immigrant farm workers have also been included, and 

those who complete the rigorous requirements of the bill will be placed on an expedited path to 

citizenship. 

Having a large population of undocumented immigrants in our country creates problems for law 

enforcement and leaves many immigrants vulnerable to exploitation and harm. Creating 

provisional legal status for these individuals. and an eventual path to earned citizenship for those 

who qualify. will ensure that our immigration enforcement resources remain focused on high 

priority cases and national security threats. 

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608 

Streamlining Legal Immigration 

Our nation· s immigration system is just that a system. Its elements work together and support 

each other, and must be considered in their totality, not as distinct, unrelated pieces. Therefore. 

what we do to strengthen border security and immigration enforcement is directly tied to our 

efforts to promote and strengthen lawful immigration. By extension. all of these elements must 

be included in comprehensive immigration reform. 

We have already made progress in improving the legal immigration process over the past four 

years. Our commitment to improving legal immigration includes launching new initiatives to 

spur economic competitiveness: streamlining and modernizing immigration benefits processes; 

strengthening fraud protections; protecting crime victims: supporting and helping to integrate 

refugees and asylees; updating rules to keep immigrant families together; and promoting civic 

engagement and integration. 

For example, US CIS has launched initiatives to spur economic competiveness by attracting 

foreign entrepreneurial talent to create jobs. forn1 startup companies, and invest capital in areas 

of high unemployment. DHS also has taken action using existing authorities to keep more 

talented science and math graduates in the country longer and to attract highly skilled immigrants 

who will be critical to continuing our economic recovery and encouraging job creation. USCIS 

also has begun to modernize its immigration benefits system, transitioning from a paper-based to 

an electronic system that will improve case management and efficiency, and it has improved its 

fraud detection capabilities and efforts to combat immigration-services scams. 

We also have worked to help protect victims of domestic violence, human trafficking, and 

victims of devastating natural disasters and violent conflicts, as well as individuals from around 

the world seeking refuge or asylum in the United States. We have made rule changes that will 

reduce the time U.S. citizens are separated from their immediate relatives who are in the process 

of applying for immigrant visas to become lawful U.S. permanent residents. And we have 

continued to strengthen our work with communities nationwide to promote citizenship 

preparation. including civics-based English instruction and education on the rights and 

responsibilities of citizenship. 

There is much more to be done in each of these areas, but further progress requires statutory 

changes. Outdated legal immigration programs need to be reformed to meet current and future 

demands. That is why the President's proposal calls for an overhaul of legal immigration system 

so that families can be reunited and to ensure it better aligns the available legal workforce with 

the needs of our economy and strengthens economic competitiveness. 

Although not entirely consistent with the President's proposal, the Border Security, Economic 

Opportunity, and Immigration Modernization Act would also overhaul our current employment 

and family immigration systems and reduce the existing backlogs. The bill makes significant 

changes in employment based programs that will also us to attract and retain highly skilled 

workers and entrepreneurs. The bill provides green cards to both low and high skilled workers 

that our economy needs to recover. This is especially important in the STEM fields. The bill 

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609 

would allow STEM PhD and Master's Degree graduates from qualified U.S. universities who 

have found employment in the United States to remain here as permanent residents. Providing 

visas to foreign entrepreneurs will enable them to start and grow their businesses in the United 

States, and create jobs for American workers, and strengthen our economy. 

Like the President's proposal, the bill treats spouses and children of permanent residents as 

immediate relatives. Outdated legal immigration programs need to be refonned to meet current 

and future demands. I am pleased to see that the bill eliminates existing waiting lists in the 

family-sponsored immigration system by recapturing unused visas and temporarily increasing 

annual visa numbers, raising annual country caps, and revising current unlawful presence bars 

and providing broader discretion to waive bars in cases of hardship. 

The bill also contains important protections for vulnerable immigrants, including those who are 

victims of crime and domestic violence, and asylum seekers by eliminating certain limitations 

that prevent qualified individuals from applying for asylum. The bill also contains provisions 

creating new temporary worker programs one targeted to the agricultural industry and another 

broader based program- that are the product of compromise between business and labor leaders 

seeking to address worker shortages while also protecting American workers. 

Conclusion 

Over the past four years, DHS has worked very hard to meet our immigration responsibilities in a 

smart, common-sense manner. The results we are seeing today ret1ect the most serious and 

sustained effort to strengthen border security and enforce immigration laws that I've seen in the 

more than twenty years I've been engaged in immigration enforcement and policy. Our men and 

women on the frontlines, in the interior, and overseas deserve a great deal of credit for this 

success. 

Today our borders are more secure and our border communities are among the safest 

communities in our country. We have removed record numbers of criminals from the United 

States and our immigration laws are being enforced according to sensible priorities. We have 

taken numerous steps to strengthen legal immigration and build greater integrity into the system. 

And we are using our resources in a smart, effective, responsible manner. We have matched 

words with action, and now is the time to take the next step and fundamentally reform the 

nation's immigration system to ret1ect the realities of the 21'1 century. 

We must not miss this opportunity to enact meaningful reforms to not only strengthen our 

immigration system but also to ensure that our nation remains a land of opportunity for 

immigrants, businesses, and all those whose dreams, aspirations, hard work, and success have 

contributed to our nation's uniqueness, diversity, cultural richness, and economic strength since 

our founding. The time to modernize our immigration laws is long overdue, and we stand ready 

to work with this Committee and the Congress to achieve this important goal for our country, the 

American people, and all those seeking to contribute their talents and energy to our great nation. 

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610 

We are very encouraged by the progress that has been made thus far in developing the Border 

Security, Economic Opportunity, and Immigration Modernization Act. The introduction of this 

legislation is a true milestone, and we look forward to working with you to build on this 

momentum. Thank you, again, for the attention you are giving to this critical issue. 

7 
611 

Statement Of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committees, 

Hearing On Border Security, Economic Opportunity and Immigration Modernization Act, 

S.744 

Apri123, 2013 

Let me begin by commending Secretary Napolitano and the men and women of the Department 

of Homeland Security who worked so hard last week as part of our coordinated national security 

etfort in Boston. The Patriots' Day bombings and the identification and successful capture of the 

remaining suspect deserved her full attention. 

Several Republican Senators not part of the bipartisan legislative effort for comprehensive 

immigration reform had demanded in March that you return to the Committee to testify about the 

workability of the legislation. Despite your appearance in February in which you testified 

extensively about this effort, I prevailed upon you to return. It is a testament to your 

commitment to reforming the immigration system that you were willing to return just two 

months after your last appearance and with the other important demands on you to help ensure 

our Nation's security. I suspect some will have questions about the events of the last week. I 

remind all Senators that this is their opportunity to ask you directly about the Border Security, 

Economic Opportunity and Immigration Modernization Act, which is the purpose of your 

appearance and testimony. Today, we meet to hear directly from the Cabinet Secretary who will 

be tasked with implementing this legislation about whether it is workable. 

In welcoming you back before the Committee, I repeat that you and President Obama have done 

more in the administration's first four years to errfbrce immigration laws and strengthen border 

security than in the previous administration's entire eight years. The border patrol has more than 

21,000 agents, more than at any point in its history. New technologies have been deployed to the 

border. Apprehensions along the border are the lowest we have seen in decades because fewer 

people are trying to cross. And according to a report by the Migration Policy Institute, the 

United States now spends more money on immigration enforcement agencies than it does on all 

our major federal law enforcement agencies put together. So it is hard to understand how some 

can still be saying that before we reform the immigration system we must do enforcement first. 

We have. I hope as we consider this legislation, Senators will acknowledge the tremendous 

progress that has been made. 

It is long past time for us to refmm our immigration system. We need an immigration system 

that lives up to American values one that allows families to be reunited and safe. One that 

treats individuals with humanity and respects due process rights and civil liberties. One that 

shields the most vulnerable among us, including children, crime victims, asylum seekers and 

refugees. One that will help to reinvigorate our economy and enrich our communities. 

I have commended Senator Schumer, Senator McCain, Senator Durbin, Senator Graham, Senator 

Menendez, Senator Rubio, Senator Bennet, Senator Flake and Senator Feinstein for their 

extraordinary work. I am concerned, however, that what some are calling "triggers" could long 

delay green cards for those who we want to make full and contributing participants in our 

society. I do not want people to move out of the shadows only to be stuck in some underclass. 
612 

Just as we should not fault "'dreamers" who were brought here as children, we should not make 

people's fates and future status depend on border enforcement conditions over which they have 

no control. And I am disappointed that the legislation does not treat all American families 

equally. We must end the discrimination that gay and lesbian families face in our immigration 

law. I also am concerned about changes to the visa system for siblings and the lack of clarity 

about how the new point-based visa system will work in practice. And I question whether 

spending billions more on a fence between the United States and Mexico is really the best use of 

taxpayer dollars. 

Throughout our history. immigration has been an ongoing source of renewal of our spirit, our 

creativity, and our economic strength. From the young students brought to this country by their 

loving parents seeking a better life, to the hardworking men and women who play vital roles 

supporting our farmers, innovating for our technology companies, or creating businesses of their 

own, our Nation continues to benefit from immigrants. We need to uphold the fundamental 

American values of family, hard work and fairness. The dysfunction in our current immigration 

system affects all of us. It is time to fix it. Now is our opportunity to do so. 

##### 

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Questions for Secretary Napolitano 

From Senator Grassley 

For the Record following the April 23'd hearing 

I. You have emphasized that apprehensions at the border are doVvn, and in doing so. praise the 

Administration's record on border security. However, Customs and Border Protection has 

just released numbers showing that apprehensions increased 13 percent over the last year. 

Does the fact that border apprehensions are up mean that the border is becoming less secure? 

2. The bill only calls for establishing an entry/exit system for air and sea ports before 

implementing the path to citizenship. Aside from costs. what impediments are there to 

instituting the system at land ports? 

3. The bill requires your Department to establish a strategy to identify where fencing should be 

deployed along the southern border. During the hearing. you indicated that the administration 

believes that sufficient fencing is in place and that you'd prefer not to increase fencing along 

the southern border. Do you anticipate that your study will call for any additional physical 

fencing? 

4. During the hearing. we discussed the fact that the Northern border was not a part of the trigger 

and did not need to be secured before green cards are distributed. You said that the Northern 

border is a different border. but that it's a part of the discussion. Can you elaborate? Can you 

describe how the northern border is .. difTercnt?" Please provide a Jist of ''Other than 

Canadians'' that have crossed the Northern border illegally in the last ten years. including their 

country of origin. 

5. Section II 02 of S. 744 requires the Secretary to increase the number of CBP ofticers by 3,500; 

however, it does not specify how many of those agents will be used to secure the physical 

border versus customs enforcement and other mission requirements. How do you envision 

this section being implemented, and how would the depmtment make decisions with regard to 

deten11ining how many agents arc hired to secure the physical borders? 

6. Section 1104 provides funding for only the Tucson Sector of the Southwest Border region. 

Does the administration support only resources to this sector? Are there other sectors that 

should be included? If so, please provide details. 

7. Section I I 05 relates solely to the State of Arizona. Should this provision be expanded to all of 

the Southwest Border states? 

8. Section I I 07 provides for a grant program in which individuals who reside or work in the 

border region and are ''at a greater risk of border violence due to lack of cellular service .. can 

apply to purchase phones with access to 9I I and equipped with GPS. Does the administration 

believe that the Southwest Border region is safe and secure, rendering this grmll program 

mmecessary? 
614 

9. Does the administration have any views on Section 1111 on the Use of Force. including the 

requirement that the department collaborate with the Assistant Attomey General for the Civil 

Rights Division of the Department of Justice? 

E-Verify has proven to be an effective tool to help employers verify the work eligibility of its 

workforce. If s web-based and easy to use. The system has been ready for national 

deployment tor years. Yet. this bill doesn't make it mandatory tor all employers for five 

years from the time your Department issues regulations. How long will it take your 

Department to issue regulations with regard to theE-Verify program? 

1. The bill is full of administrative reviews for people here illegally. What is your position 

on the ability of these people to take a denial or revocation to a U.S. Federal court? 

2. The bill would grant Immigration Judges broad new discretion to allow an immigrant 

that DHS wants to remove to stay in the United States by waiving current bars to 

admission and removal grounds for numerous crimes such as drug crimes. firearms 

offenses, domestic violence, fraud. high speed flight at a checkpoint, and crimes 

involving moral turpitude, if the Immigration Judge finds hardship to a citizen or legal 

pem1anent resident or if he thought it was in the public interest. Do you think current 

immigration laws are too strict against illegal immigrants who engage in this type of 

criminal conduct? 

3. The bill provides tor broad authority for appeals to district courts and circuit courts if 

your Department denies an alien's application for the legalization program. Thus, if 

DHS denies an alien's request for legalization, the alien can appeal to federal court 

and delay his deportation for years. This would include criminal aliens. Do you think 

federal courts should be able to second guess your decision of whether to deny an 

application for the bill's legalization program and prevent you from removing aliens 

including criminal illegal immigrants? 

1. The bill provides for an increase in H-1 8 visas. It also includes a so-called ·•market 

escalator" that allows the cap to move up or down. based on demand. The agency has 

always had difficulty counting the visas. sometimes exceeding the congressional 

mandated cap. Some say this bill only complicates the matter. Do you support this 

approach to the H-1 8 cap? 

2. The bill allows the U.S. CIS to ''recapture" unused visas. Is there any such thing as an 

"unused" visa? Please list how many visas have been ''unused'' each year since 1990 

and what category they fall under. 
615 

I. The new temporary worker program knovm as the W visa program- is a brand new 

concept in which an employer applies independently from the foreign national. It's a 

two step process, giving instant portability to the worker and very little responsibility 

for the employer. Do you think this program is properly set up? How would you 

improve it? 

2. In 1996, after the 1993 World Trade Center attack, Congress mandated that the 

immigration service, with cooperation from schools and universities, collect 

information on foreign students. This system took years to get up and running. In 

fact, it still wasn't in place on 9111. While it's operational today, there's still work to 

be done to make that system effective. Yet, the bill would require the U.S. 

Citizenship and Immigration Service the same agency in charge of the legalization 

program, E-Verify, and every other immigration benefit- to set up and operate a 

monitoring system for employers who use the new W visa program. The bill clearly 

lacks instruction on how your Department will establish and maintain this very critical 

monitoring system, exposing a huge vulnerability. How do you anticipate setting up 

this system, and when would it be operational? 

3. The bill creates the Bureau oflmmigration and Labor Market Research as an 

independent statistical agency within the U.S. Citizenship and Immigration Services. 

The Bureau will devise a methodology to determine the armual change to the cap for 

W visas. The new Commissioner of this Bureau will designate shortage occupations, 

in need of workers, so that an employer can petition the Commissioner for a 

determination of whether a particular occupation in a particular area has been deemed 

a shortage occupation. 

• Why is there a need to create this new Labor Market Research 

agency housed in the U.S. Citizenship and Immigration Services? Why 

not put it in the Labor Department, which undoubtedly has access to 

similar information? Particularly when the bill appropriates, not 

authorizes, but appropriates $20 million to establish the Bureau. Aren't 

there more efficient and cost-saving ways to handle this? 

• The bill permits employers to "lobby" the Commission of the 

new Bureau for a determination of whether they can fill particular jobs 

with temporary workers as opposed to U.S. citizens. What kind of 

message does that send to the public, especially when the bureau is 

meant to be an "independent statistical agency"? 

I. Your testimony stated that the Department has removed a record number of criminals 

from the United States. But, I'm afraid that some parts of the bill we're considering 

would undermine the work of your agents, further weakening the confidence of the 

American people that we're serious about enforcing the laws. The bill states that 

individuals here illegally who apply for RPI status are not made ineligible even if 

they've been convicted of numerous misdemeanor offenses. As written, only if 
616 

someone's been convicted, on different days, of 3 or more offenses are they ineligible 

for RPI status. So, if someone was convicted of 10 misdemeanor offenses on one day, 

then that person isn't ineligible? 

2. In the past, there has been an attempt to impose a time limit for federal agents to 

complete background checks on aliens who apply for legalization. Will you assure us 

that, under your leadership, no such time limit would be imposed? 

3. The bill simply provides authority to the Secretary of Homeland Security to require an 

applicant for Registered Provisional Immigrant status to appear in person for an 

interview. Congress said that anyone applying to enter the country from abroad should 

undergo an in-person interview. Why should this be any different? Under your 

leadership, would you require those who apply for legal status to undergo an interview 

with agents? How many times, and under what circumstances, have DACA applicants 

been interviewed? 

4. The bill prohibits the Secretary to detain or remove any person during the application 

period, with limited exceptions including those whose RPI status has been revoked. 

What action would the department take against aliens during the application process 

who are a serious national security, public safety or health risk? 

5. One of the requirements under this bill- and previous bills in the last several years 

is that those here illegally would have to pay back taxes before they are legalized. The 

bill lacks detail about how this would actually be carried out. Given that your 

department will have to process millions of people and determine if they paid all their 

tax liabilities, how do you envision this working? 

6. If an alien provides information in an application that is law enforcement sensitive or 

criminal in nature, should that information be used by our government and not be 

protected under confidentiality provisions- even for law enforcement and national 

security purposes? b) Does the language, in the department's opinion, preclude the 

ability to disclose information related to visa fraud or immigration fraud with law 

enforcement entities? c) If an applicant provides information in an application that 

clearly renders him ineligible and commits a serious crime that would warrant his 

immediate removal, shouldn't the government be able to use that information to place 

him in deportation proceedings? 

7. The bill doesn't make gang membership an inadmissible or deportable offense. It 

only renders them so if they commit a felony. Should gang members be allowed to 

benefit from a legalization program? 

8. Does the bill allow those who have current investigations for having filed and been 

denied applications under another identity to be eligible for legalization!RPI status? 

9. Should people that have been denied legalization through the program be placed in 

immigration proceedings and removed? 

I 0. You responded to questions after the February 13th, 20!3, hearing by saying that 

USCIS plans to hire a total of 1,422 positions to support the DACA workload. How 
617 

many more positions at USCIS, ICE and CBP will need to be hired to fulfill the 

requirements under S. 744? 

11. Will the department publish guidelines or a broad policy memorandum regarding 

affidavits that are allowed under the bill? How will fraud and abuse be prevented, and 

will training be provided to adjudicators on affidavits? Given that the department has 

accepted various forms of evidence for DACA, including receipts for purchase of 

internet video games, what has the department leamed about affidavits and what will 

the department change from the DACA guidelines? 

12. Does this bilL or any other provision of law, penalize people here unlawfully from 

falsely claiming eligibility for RPI status? Is there concern that aliens could falsely 

claim eligibility in order to avoid detention and removal? 

On April23'd, the U.S. District Court for the Northern District of Texas concluded that 

the Plaintiffs in Christopher L. Crane et alv. Janet Napolitano are likely to succeed on 

the merits of their claim that the DACA directive violates 8 USC 1225(b)(2)(A). This 

preliminary decision is reflects how the administration has overstepped its authority to 

reinterpret current law. How can the American people trust that you and this 

administration will faithfully carry out an immigration bill passed by Congress? 

2. Section 3405 provides for protections for certain "stateless'' persons in the United States 

and allows the Secretary of Homeland Security to designate specific groups of 

individuals who are considered stateless persons. This provision appears to grant 

blanket relief to any "stateless'' person who is in the United States, even though a date 

of physical presence is not identified. Does the administration support this provision? 

Given that this provision has serious implications for national security and delegates 

unlimited power to you as Secretary. can you describe who would be designated under 

this section if the bill were to pass as written? 

3. Are the timelines provided in the bill, including the requirements for reporting and 

issuing regulations, appropriate and realistic? 

4. There is concern that terrorists have and will continue to exploit our immigration system 

to enter and remain in the United States. One witness on April 22 testified that terrorists 

have used our generous asylum laws to gain status. Can you provide statistics on the 

number of people in the United States that have sought asylum and were granted asylum 

in each of the last 10 years? Are there ways to improve the process so that terrorists 

don't abuse the system? 

5. During the hearing, Senator Feinstein inquired about a provision that would 

streamline the asylum screening process by allowing your Department to grant asylum 

immediately following a screening interview. She expressed fear that your Department 

would not confer with the State Department, as it does not, to verify the veracity of an 

asylum applicant's claims. While you responded that your Department has good 

relationships with the State Department, you failed to answer whether proper checks 

would be done before granting asylum to anyone who shows up at our ports of entry. 
618 

Can you please elaborate on this matter and explain how the Department would work 

with State? How does this not make us more vulnerable to those who will try to take 

advantage of this expedited process? 

(a) When did Dzhokhar Tsamacv first arrive in the United States? 

(b) When did Tamerlan Tsamaev first arrive in the United States? 

(c) Please provide a timeline of when the Tsamaev brothers· parents claimed asylum in the 

United States. 

(d) What was the basis for granting the Tsamaev brothers Legal Permanent Resident status? 

(e) When did DHS officials first have questions about Tam1erlan Tsamaev? Please detail all 

investigative measures undertaken regarding him. 

(a) Was DHS aware at any time in 2011 that the FBI was investigating Tsamaev? If so: 

a. When and for what? 

b. Did DHS give any consideration at that time to revoking Tsamaev's Legal 

Permanent Resident status? If so, why wasn't it ever revoked~ 

Spelling Error 

During yesterday's hearing. I asked you: ''Is it true that his identity document did not match his 

airline ticket?" You responded: "There was a mismatch there .... But even under--even with 

the misspelling, under our current system. there are redundancies, and so the system did ping 

when he was leaving the United States'' 

(a) On what specific document was Tamerlan's name misspelled? 

(b) What redundancies were you referring to? 

(c) Did TSA crosscheck Tsamaev's passport and Legal Permanent Resident Card with his 

boarding pass when he left the country? 

(d) What steps should TSA officials take if an individual's boarding pass does not match 

their identity documentation when they go through airport security? 

(e) Did TSA officials take those steps in the case ofTsamaev in January 2012? If not, why? 

(I) Was Tsamaev questioned upon his departure about the discrepancy regarding the 

misspelling to which you referred? 

Notification ofTsarnae'' Departure from United States 

The Assistant Director of the FBI indicated to Senator Graham that they received no notification 

when Tamerlan Tsarnaev left the United States in January 2012. However, you stated yesterday: 

"The system pinged when he was leaving the United States. By the time he returned. all 

investigations had been -- the matter had been closed." 

(a) What ·'system pinged'' when Tsamaev was leaving the United States? 

(b) What are the positions and agencies of the individuals who received notification of this 

initial ping? 
619 

(c) What further notifications did DHS make to other agencies, including the FBI, based on 

this initial ping? Please provide the date and method each further notification was made. 

By agency and position, what individuals received the further notifications? 

(d) What subsequent steps. if any, were taken with this notification? 

(e) Did any ofDHS's component agencies notify FBI ofTamerlan's travel to Russia? If so, 

which agency, on what date, and by what method? If not, why not? 

(a) What was the date ofTamerlan's departure from the United States in January 2012? 

(b) What was the date ofTamerlan's return to the United States in July 20]2? 

(c) You stated that when Tamerlan returned to the United States, "all investigations had been 

closed on him." What investigations were open or opened on Tamerlan in January 2012? 

(d) According to one press account, "many agencies were aware ofTsarnaev's return" to the 

United States in mid-JulyYl Did Tamerlan's return to the United States receive any 

notice by DHS or any of its components? Was this different from what a U.S. citizens or 

Legal Pennanent Resident would typically receive when re-entering the United States? If 

so, why? 

(e) Did any of DHS's component agencies notifY any other agency (including agency-toagency within DHS) that Tamerlan was re-entering the United States? 

(f) According to another press account, "An official at the Department of Homeland Security 

said [Tamerlan] was on the 'radar screen' of agents in Boston from when he retumed to 

the U.S. to the end of autumn.'' 1 Was this official's statement accurate? If so, what does 

that mean? Why was Tamerlan on DHS's radar? Why did he remain on DHS's radar in 

the weeks between when he returned to the United States in mid-July and when he 

applied for citizenship on September 5. 20 12? 

(g) How does an individual get added into TECS such that the system issues alerts when that 

individual enters or departs the United States? 

(h) What is the process for removing someone from TECS? 

Notification ofTsarnaev Departure from United States 

You stated yesterday: "By the \vay, the bill will help with this because it requires that passports 

be electronically readable, as opposed to having to be manually input. It really does a good job 

of getting human error, to the extent it exists, out of the process." 

(a) What country's passport did Tamerlan Tsamaev use to depart and re-enter the United 

States? 

(b) If this legislation had been in place, how would it atTect individuals traveling with a 

foreign passport? 

(c) What procedures docs the U.S. have in place to verify the integrity of passports issued 

from other countries? 

Dzhokhar Tsarnaev Citizenship 

IOJ Hillary Chabot and Dave Wedge, "FBI's concern was Qaeda, not Chechens, says Sen.," Boston Herald (Apr. 24, 

2013). available at 

bJ!fl.;_'J?Q?.t9J!~L.-1ld. co_1n ·11.~~ .. ?_9D.!nll,~!ll ocal (,:_Q_~·:f.rQ£~2D .. U ... Q±J}.~_J:L_SoncenL}.~~<!)-@eda Jl9_L.d~-~h~llL~~. 

1 Philip Sherwell, Nick Allen and Patrick Sawer, "Boston bomber arrested: Tamerlan Tsarnaev was questioned by 

FBI in 2011,'' The Telegraph (Apr. 22. 2013), available at 

http: ·www.teleuraRh.cQ,J!kJ1e\\ s \\ orldnews ·northamerica ·usa 1 000800-l'Boston-bomh~r-arrestcd-Tamer\anT0ill.1ill~.~~1s-gucstion.£Q:hl~EJ31-in-20 1 I. htm]. 
620 

According to press reports, Dzhokhar Tsarnaev became a U.S. citizen on September 11,2012. 

(a) When did Dzhokhar submit his application for citizenship? 

(b) Did DHS conduct background checks on Dzhokhar's family members in the course of his 

citizenship process? If not, why not? 

(c) Did DHS officials conducting the background investigation on Dzhokhar know about 

Tarnerlan's interview by FBI? If so, did they contact the FBI 

about Dzhokhar applying for citizenship? 

(d) What derogatory information was on file with DHS about Tarnerlan while his brother's 

citizenship application was being considered? 

(e) Why was Dzhokhar Tsarnaev given citizenship given the derogatory information about 

Tarnerlan on file with DHS? 

Tamerlan Tsarnaev Citizenship Application 

(a) During Tarnerlan's citizenship process, what alerted DHS to the fact that he had been 

interviewed by the FBI? 

(b) What databases were utilized in the background check ofTarnerlan? 

(c) During the background check ofTarnerlan, what referrals or requests were made to the 

FBI and what responses, if any, were received? 

(d) When DHS learned that the FBI had interviewed Tamerlan in 2011, did DHS notify the 

FBI that Tamerlan had applied for citizenship? 

(e) Does DHS have direct access to Terrorist Identities Datarnart Environment (TIDE) or 

Terrorist Screening Database (TSD) in conducting background checks for those applying 

for United States citizenship? 

Other Individuals in ICE Custody 

The Associated Press reported on April 20 that HSI arrested two individuals in New Bedford, 

Massachusetts. 2 

(a) Do the individuals have any connection to either of the Tsamaev brothers? 

(b) Are the two individuals suspected in any other crimes? 

(c) Are any individuals being deported as a result of the investigation that began with the 

Boston Marathon bombing? 

Unregi-,tcred .\lien Sex Ol"fcnJers in ICE Custod: 

I understand that a large number of unregistered alien sex offenders may be under the 

supervision of U.S. Immigration and Customs Enforcement (ICE). Typically when a sex 

offender leaves prison, the Bureau of Prisons sends a letter to their state saying the person should 

register within three days. However, when the Bureau of Prisons hands over an alien sex 

offender to your Department, it's up to ICE to make sure that they get registered. 

(a) Does ICE require alien sex offenders to register? 

(b) How many umegistered alien sex offenders are in the custody of ICE? 

(c) How many unregistered alien sex offenders are on parole and under ICE supervision? 

2 "ICE Arrests 2 in Mass. Town Tied to Bombing Case," Associated Press (Apr. 20, 2013), available at 

http:/!bigstory.ap.org/artic}c/ice-arrests-2-mass-town-tied-bombing-case. 
621 

(d) How frequently is check-in with ICE required for alien sex offenders who are on parole 

and under ICE supervision? 

(e) Will you commit to address this issue immediately? 
622 

The Senate Judiciary Committee 

Hearing on Comprehensive Immigration Reform Legislation 

Tuesday, Apri123, 2013 

From Senator Orrin Hatch 

Question to Secretarv Napolitano: 

How does the Department of Homeland Security determine whether the resources it is 

dedicating to border security are effective? 

At last week's Homeland Security and Government Affairs Committee hearing, Senator 

McCain expressed frustration that there was not an established metric to rate the security of our 

borders. 

Have you reconsidered or thought of a better answer to this question than the one you 

gave Senator McCain last week? 

I agree with him, measuring our success is crucial. 

Do you believe there is a way to give an accurate depiction of the security of our border? 

Question to Secretarv Napolitano: 

Over the years, millions of marijuana plants have been eradicated from federal public 

lands. Outdoor marijuana cultivation is the chief source of revenue for Mexican drug trafficking 

organizations. Growing marijuana in the U.S. saves traffickers the risk and expense of 

smuggling their product across the border and allows gangs to produce their crops closer to local 

markets. 

During the past several years, marijuana growing operations have been a serious problem 

on Utah's public lands where tens of thousands of plants have been seized. 

Law enforcement officials confirm that all of the perpetrators arrested at these marijuana 

grows were both present in the United States illegally and armed with firearms. 

This problem is not unique to Utah. Other states with substantial federal landsincluding Colorado, California, Idaho, Nevada. Oregon and Michigan- are also seeing a spike in 

marijuana cultivation by Mexican drug trafficking organizations. 

What are your thoughts on providing tougher penalties for cultivating marijuana on 

federal lands? 

Question to Secretary Napolitano: 
623 

How can we ensure that those applying for legalization under the Border Security. 

Economic Opportunity, and Immigration Modernization Act are who they say they are? 

I assume there will be facial recognition and fingerprint verifications built into the 

criminal background checks; but at the end of the day, it seems that as long as an individual 

hasn't committed a crime here in the United States, he or she could take on another identity. 

So, a lot hinges on the veracity of the documents presented when an immigrant applies 

for provisional status. 

What kind of vetting process will be in place to prevent identity theft and fraud? 

Question to Secretary Napolitano: 

What margin of improvement do you expect from universally implementing the 

E-Verify program? 

As an aside, I agree with my colleagues that we should deploy this program immediately. 

Question to Secretarv Napolitano: 

The proposed legislation requires that a visa-exit system must be implemented for all 

international airports and seaports within I 0 years. 

You mentioned in today's hearing that an entry-exit tracking system would be ready to go 

within years. Are you referring to a time frame of less than five years or within I 0 years as 

provided by the legislation? 

Question to Secretary Napolitano: 

Let me ask you about the new W visa category for the low-skilled guest worker program. 

The bill allocates 20.000 visas in the first year with a gradual increase to 75,000 in the fourth 

year. 

Do you have any sense of whether this quota will address our country's needs and deter 

illegal immigration. or will we repeat the same mistakes made in I 986? 
624 

Questions for the Record 

Comprehensive Immigration Reform 

Senator Mike Lee 

Apri123, 2013 

Secretary Janet Napolitano 

I. During the hearing, I asked you about the discretion granted to you to waive certain 

inadmissibility requirements for classes of RPI applicants. In response, you referenced 

the language of the biii, saying, "(T]here would be consideration based on the age of the 

conviction or the type of the conviction, whether the individual was the primary wage 

earner for a family, and the record since their prior conviction ... " However the Bill as 

written gives you discretion to determine what is or is not in the public interest. 

• Can you help define what you would and would not consider as being in "the 

public interest" as it would apply to this situation? 

• Also, when defining family unity, do you mean to include only immediate family 

such as (spouse and children) or do you plan to extend the family unity language 

further than that? 

• Do you plan on setting forth any standards that will inform the public and 

Congress of the foundations on which your discretion in this area will be based? 

2. You will have discretion to exempt other defined classes of individuals from the fee for 

adjustment to LPR status. 

• For what classes of individuals will you waive the fee? 

• What information or standards will guide the decision on who receives the 

waiver? 

• What safeguards will be put in place to ensure that this process is done fairly and 

impartially? 

3. Fees and Penalties associated with the Act may be paid through installment payments. 

The process for such payments is determined by the Secretary. (p. I 08) 

• What process do you plan on creating for collecting fees and penalties? 

• Do people applying for other immigrant visas enjoy the benefit of an installment 

plan? 

4. The Act provides aliens the opportunity to challenge revocation of the alien's application 

through administrative appellate review, if that fails, before a U.S. district court, and if 

that fails, through the U.S. court of appeals, all while maintaining lawful presence. Then, 

if deportation proceedings begin, the alien can remain in lawful presence through a 
625 

second string of proceedings. This process allows for multiple layers of judicial review. 

(p. 124) 

• Why should an illegal alien be permitted to pursue multiple attempts at judicial 

review for essentially the same determinations to be made, all the while enjoying 

lawful presence? 

• Do those who apply for other visas at consular offices have access to judicial 

review? 

5. In order to adjust to LPR status from RPI status, an applicant must demonstrate that he or 

she is at 125 percent of the poverty level. (p. 97) 

• As the family of an applicant may follow on as derivatives (rather than each 

family member applying individually), will the poverty level threshold be based 

on the individual or the household as a whole? 

6. RPis applying for adjustment to LPR status must show that they have been regularly 

employed or enrolled in school during their period of status as an RPI. Under the age 

exception, those younger than 21 on the date ofRPI renewal are exempt from this 

requirement. Under this exception, a 24-year-old applying for adjustment is exempt from 

the requirement to work or be enrolled in school. 

• Do you believe that 24-year-olds should be exempt from the requirement to be 

employed or in school? 

7. The E-verify language in this bill exempts from the definition of employers any 

employment that is "casual, sporadic, irregular, or intermittent." (p. 402) 

• What employers would this exclude from the requirement to use E-verify? I 

would imagine this is meant to exclude those who hire babysitters? What about 

day laborers? Construction workers? 

8. This bill directs you to develop a photo "tool" forE-verify, connected to a database of 

photos kept at USCIS. This tool will enable employers to match the photo an employee's 

documents with a photo maintained on the database. (p 414) 

• What measures will you take to ensure that such a tool does not evolve into a 

national photograph database used for non-E-VerifY purposes? 
626 

RESPONSES OF HON. JANET NAPOLITANO TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY, HATCH, AND LEE—REDACTED
627 

Question#: 1 

Topic: border security 1 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grasslcy 

Committee: JUDICIARY (SENATE) 

outbound travelers in the same way as CBP processes inbound travelers. There are a 

limited number of vehicle and pedestrian lanes upon departure and vehicles can depart 

the United States traveling at 50 miles an hour at some locations. 

To address these hurdles, the Department of Homeland Security (DHS) is developing 

innovative ways to collect biographical exit information at land borders. As part ofthe 

Beyond the Border Agreement with Canada, DHS and the Canada Border Services 

Agency (CBSA) are partnering to create a biographical entry/exit system on the shared 

land border by exchanging entry information, so that information collected on entry to 

one country is automatically recorded as an exit from the other. Essentially, each country 

collects biographical departure information for the other simply using their existing entry 

collection procedures, and shares this data with the other country. 

This program began on June 30,2013, and already CBP has collected over 2.5 million 

exit records from Canada, receiving approximately I 0,000 to 15,000 per day. The 

program currently exchanges data only on third country nationals (i.e. non-American or 

Canadian citizens), but will expand to include citizens in 2014. Using available 

interfaces which already existed with Canada, this will be developed at virtually no cost. 

Accordingly, the United States already has an entry/exit system on its northern border 

today, just as it does in the air and sea environments. While CBP does not have physical 

structures or officers that facilitate collection of exit data directly from departing 

passengers, CBP still gets all of the relevant departure information. 

On the southern border, CBP is researching additional ways to collect data from 

departing passengers into Mexico. However, there are significant differences in 

infrastructure, volume, and data collection procedures between Canada and Mexico. 

CBP is currently researching data collection methods that will have no impact on the flow 

of travel for departing travelers or trade between the two countries. These include data 

exchange programs similar to the northern border, the use of RFID technology for 

travelers with existing RFID-enabled documents, and several other possibilities. CBP 

has already begun discussions with the Mexican government regarding data exchange 

programs, and in 2015, CBP is planning to pilot additional technologies in the outbound 

pedestrian environment on the southwest border, where there is significant pedestrian 

traffic. 
628 

Question#: 2 

Topic: border security 2 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The l Ionorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: The bill requires your Department to establish a strategy to identify where 

fencing should be deployed along the southern border. During the hearing. you indicated 

that the administration believes that sufficient fencing is in place and that you'd prefer 

not to increase fencing along the southern border. Do you anticipate that your study will 

call for any additional physical fencing? 

Response: DHS would prefer flexibility with how funds should be used to fortify border 

security, as opposed to a mandate that all ofthe funds dedicated to fencing in the Senate 

bill go to additional fencing. We believe that increased investments supporting 

infrastructure, maintenance and repair, and technological assets would be a more efficient 

use of resources and more effectively provide the situational awareness and operational 

capabilities that would serve as a force multiplier for the Border PatroL 
629 

Question#: 3 

Topic: border security 3 

Hearing: The 13ordcr Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: During the hearing, we discussed the fact that the Northern border was not a 

part of the trigger and did not need to be secured before green cards are distributed. You 

said that the Northern border is a different border, but that it's a part of the discussion. 

Can you elaborate? Can you describe how the northern border is ''different?" 

Response: Although the operational challenges in the Northern and Southern border 

environments vary greatly, the primary concerns or threats are very similar: the illegal 

movement of people, goods, and conveyances across the border. In the Northern Border 

environment, rugged terrain and a corresponding lack of infrastructure hinder our patrol 

capabilities and equally impede illicit cross border traffic. 

To address these threats, the Department of Homeland Security's (DHS) Northern Border 

approach focuses on bi-national, federal. state, local, and tribal law enforcement 

partnerships, information sharing agreements, joint integrated operations, and community 

outreach in order to maximize efforts and resources. DHS employs coordinated inbound 

and outbound enforcement operations along the Northern Border with other law 

enforcement entities through Integrated Border Enforcement Teams (!BET), Border 

Enforcement Security Taskforces (BEST), and Integrated Cross-Border Maritime Law 

Enforcement Operations (Shiprider). IBETs, which are composed of Border Patrol 

agents, U.S. Customs and Border Protection officers, Immigration and Customs 

Enforcement agents, the U.S. Coast Guard, the Royal Canadian Mounted Police, and the 

Canada Border Services Agency, operate on a daily basis in 23 locations along the 

border. !BETs collaborate with municipal, provincial, state, federal, and tribal law 

enforcement agencies. stakeholder agencies. and related governmental departments to 

identity, investigate. and interdict persons and organizations that threaten the national 

security of our respective countries or that are involved in organized criminal activity, 

between the ports of entry. BESTs are multi-agency teams that identify, investigate. 

disrupt, and dismantle criminal organizations posing significant threats to border security. 

BESTs, which are ICE-led, utilize co-located and cross-designated investigative assets of 

federal, state/provincial, local, and tribal law enforcement partners on both sides of the 

border to investigate transnational crime. Under Shiprider, cross-designated U.S. and 

Canadian law enforcement officers perform joint patrols in shared maritime areas. The 

U.S. Coast Guard (USCG) and the Royal Canadian Mounted Police (RCMP) are the 

primary Shiprider participants. 
630 

Question#: 

Topic: border security 3 

Hearing: The Border Security. Economic Opportunit). and Immigrution !V1odcrniz.ation Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Please provide a list of·'Other than Canadians" that have crossed the Northern 

border illegally in the last ten years. including their country of origin. 

Response: While U.S. Customs and Border Protection does not maintain a list of aliens 

"Other than Canadians'" that have crossed the Northern Border illegally over the last ten 

years, the total number of deportable, Non-Canadian apprehended on the Northern 

Border rrom Fiscal Year 2004 through Fiscal Year 2013 is 59,430. 
631 

Question#: 4 

Topic: border security 4 

Hearing: 1 The Border Security. Economic Opportunity. and Immigration Modernization Act. 

I S.744 

Primary: The llonorablc Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Section l l 02 of S. 744 requires the Secretary to increase the number of CBP 

officers by 3,500: how·ever. it does not specify how many of those agents will be used to 

secure the physical border versus customs enforcement and other mission requirements. 

How do you envision this section being implemented. and how would the department 

make decisions with regard to determining how many agents are hired to secure the 

physical borders? 

Response: The mission of preventing illicit goods and people who would do us harm 

from entering the United States, while also facilitating the flow of legitimate trade and 

travel into and out of the United States, is demanding. complex, and constantly evolving, 

and requires adequate front-line staffing for effective and efficient perfonnance. To meet 

this challenge, each U.S. Customs and Border Protection (CBP) officer is multidisciplined and able to perform the full range of inspection, intelligence analysis, 

examination, and law enforcement activities related to the arrival and departure of 

persons, conveyances. and merchandise at the ports of entry (POEs). CBP's intent is for 

every CBP officer to directly contribute to the border security mission at the POEs- new 

CBP officers are brought on board with this understanding. 

CBP has developed the Workload Staffing Model (WSM) to identify CBP officer staffing 

needs at ports of entry and inform staffing decisions. The WSM is a data-driven model 

that includes activities for all environments (air, land, and sea) and more than l 00 

workload elements. Actual deployment decisions are then made by CBP management, 

using a number of factors including the WSM results, service levels, and operations 

subject matter expertise: this information is regularly updated to account for changing 

conditions. 
632 

Question#: 5 

Topic: border security 5 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act, 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Section II 04 provides funding for only the Tucson Sector of the Southwest 

Border region. Does the administration support only resources to this sector? Are there 

other sectors that should be included? If so, please provide details. 

Response: U.S. Customs and Border Protection supports funding for resources 

throughout the border regions, consistent with the threat and management of risk. 
633 

Question#: 6 

Topic: border security 6 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Section 1105 relates solely to the State of Arizona. Should this provision be 

expanded to all of the Southwest Border states? 

Response: In accordance with the 2006 Memorandum of Understanding between U.S. 

Customs and Border Protection (CBP), the Department of the Interior (DOl), and the 

Department of Agriculture (USDA), Border Patrol agents have not been denied access in 

the case of an emergency or exigent circumstance to exercise their authority. All access 

issues that have been identified are currently being cooperatively addressed by CBP, 

DOl, and USDA's U.S, Forest Service. CBP does not believe any additional authority to 

access federal lands is necessary. 
634 

Question#: 7 

Topic: border security 7 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: I JUDICIARY (SENATE) 

Question: Section II 07 provides for a grant program in which individuals who reside or 

work in the border region and are ''at a greater risk of border violence due to lack of 

cellular service" can apply to purchase phones with access to 911 and equipped with 

GPS. Does the administration believe that the Southwest Border region is safe and 

secure, rendering this grant program unnecessary? 

Response: The Department of Homeland Security (DHS) agrees that access to 911 

service through cellular telephone service can improve public safety, and generally 

supports efforts to improve such access, whether in the Southwest border region or 

elsewhere. Border security has changed signiticantly over the past ten years, not only in 

terms of resources, infrastructure, and operations, but also in how we assess and measure 

the state of an ever-changing border environment. Over the past four years, the Obama 

Administration has made historic investments in border security, adding more personnel, 

technology, and infrastructure; making our ports of entry more efficient to lawful travel 

and trade; deepening partnerships with federal, state, local, tribal, and territorial law 

enforcement, and internationally; improving intelligence and information sharing to 

identity threats sooner; strengthening entry procedures to protect against the use of 

fraudulent documents and the entry of those who may wish to do us harm and enhancing 

our exit system to improve tracking and enforcement of overstays. We are proud of these 

achievements, which reflect the hard work of many DHS agents and officers and our 

partners, who work long hours and often at great personal risk. 

These efforts have contributed to a border that is far stronger today than at any point in 

our nation's history, and border communities that are safe and prosperous. Since 2004, 

we have doubled the number of Border Patrol agents from approximately I 0.000 to more 

than 21,000 today. Along the Southwest border, the number of Border Patrol agents has 

increased by 94 percent to nearly 18,500. Along the Northern border, we now have more 

than 2,200 Border Patrol agents. To facilitate the secure flow of people and goods, we 

have also increased the number of U.S. Customs and Border Protection (CBP) officers 

ensuring the secure flow of people and goods into our nation from 17,279 customs and 

immigration inspectors in 2003 to more than 21,000 officers and 2,300 agriculture 

specialists today. CBP has deployed proven, effective technology to the border tailored 

to the operational needs of our agents on the ground. We have expanded our unmanned 

aerial surveillance capabilities and strengthened our air and marine interdiction 

capabilities. These efforts have contributed to a border that is more secure today than at 

any point in our nation's history. 
635 

Question#: 7 

Topic: border security 7 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act, 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: Does the administration have any views on Section !Ill on the Use of Force, 

including the requirement that the department collaborate with the Assistant Attorney 

General for the Civil Rights Division of the Department of Justice? 

Response: The Department believes that it is important for DHS to collaborate on Use of 

Force policies with the Assistant Attorney General for the Civil Rights Division of the 

Department of Justice. We believe that the language would be strengthened if it 

recognized the statutory and important role of the DHS Office for Civil Rights and Civil 

Liberties in such collaboration; CRCL is currently responsible for reviewing DHS 

programs, policies. etc .. to ensure protection of civil rights and civil liberties. 
636 

Question#: 8 

Topic: worksitc/c-Yerify 

Hearing: The Border Security, Economic Opportunit;·, and Immigration Modernization Act 

S.744 

Primary: The llonorable Charles E. Grass ley 

Committee: JuDJCIAR Y (SENATE) 

Question: E-Verify has proven to be an effective tool to help employers verify the work 

eligibility of its workforce. It's web-based and easy to use. The system has been ready 

for national deployment for years. Yet this bill doesn't make it mandatory for all 

employers for five years from the time your Department issues regulations. How long 

will it take your Department to issue regulations with regard to the E-Verify program? 

Response: In its current form, the bill requires these regulations to be issued on an 

interim basis within one year of the date of enactment (sec. 31 06). The bill also requires 

a five-year roll-out in mandatory use of E-Verify based on company size to ensure that 

the system meets the needs of both employers and workers (sec. 310 l ). DHS supports the 

current timeline specified in the bill, and will use the five-year rollout time frame to make 

additional enhancements and changes as required by the bill and to educate employers 

and employees nationwide. 
637 

Question#: 

Topic: layers of rcYiew 1 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

I S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The bill is full of administrative reviews for people here illegally. What is 

your position on the ability of these people to take a denial or revocation to a U.S. 

Federal court? 

Response: Availability of administrative review, and, when appropriate, judicial review, 

for both lawfully present and undocumented individuals is important aspect of 

immigration law. DHS supports the Senate bill and we look forward to seeing any 

proposals from the House of Representatives and working with Congress on these issues. 
638 

Question#: l 0 

Topic: layers of review 2 

Hearing: J The Border Security. Economic Opportunity. and Immigration Modcmitation Act. 

S.744 

Primary: 'The Honorable Charles E. Grassley 

Committee: Jt'DICIARY (SENATE) 

Question: The bill \Vould grant Immigration Judges broad new discretion to allow an 

immigrant that DHS wants to remove to stay in the United States by waiving current bars 

to admission and removal grounds for numerous crimes such as drug crimes, firearms 

offenses. domestic violence. fraud. high speed flight at a checkpoint. and crimes 

involving moral turpitude, if the Immigration Judge finds hardship to a citizen or legal 

permanent resident or if he thought it was in the public interest. Do you think current 

immigration laws are too strict against illegal immigrants who engage in this type of 

criminal conduct? 

Response: Discretionary waivers of inadmissibility or deportability are an important part 

of immigration law. DHS supports the Senate bill and we look forward to seeing any 

proposal from House of Representatives and working with Congress on these issues. 
639 

Question#: II 

Topic: layers of review 3 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization Act 

5.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: The bill provides for broad authority for appeals to district courts and circuit 

courts if your Department denies an alien's application for the legalization program. 

Thus, ifDHS denies an alien's request for legalization, the alien can appeal to federal 

court and delay his deportation for years. This would include criminal aliens. Do you 

think federal courts should be able to second guess your decision of whether to deny an 

application for the bill's legalization program and prevent you from removing aliens 

including criminal illegal immigrants? 

Response: The Department supports the judicial review provisions included in the bill. 
640 

Question#: 12 

Topic: legal immigration 1 

Hearing: The Border Security, Economic Opportunity. and Immigration Modemi7lltion Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The bill provides for an increase in H-1 8 visas. It also includes a so-called 

"market escalator" that allows the cap to move up or down, based on demand. The 

agency has always had difficulty counting the visas, sometimes exceeding the 

congressional mandated cap. Some say this bill only complicates the matter. Do you 

support this approach to the H-1 8 cap? 

Response: The Department supports the inclusion of some market-based adjustment 

criteria in the H-18 cap and the Department believes that it would be able to administer 

them effectively. 
641 

Question#: 13 

Topic: legal immigration 2 

Hearing: The flordcr Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grasslcy 

Committee: JUDICIARY (SENATE) 

Question: The bill allows the U.S. CIS to ''recapture'· unused visas. Is there any such 

thing as an '"unused" visa? Please list how many visas have been "unused" each year 

since 1990 and what category they fall under. 

Response: DHS defers to the U.S. Department of State, which leads Administration 

efforts to calculate available immigrant visa numbers. 
642 

Question#: 14 

Topic: temporary worker program 1 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: I JUDICIARY (SENATE) 

Question: The new temporary worker program- known as the W visa program- is a 

brand new concept in which an employer applies independently from the foreign 

national. It's a two step process, giving instant portability to the worker and very little 

responsibility tor the employer. Do you think this program is properly set up? How 

would you improve it? 

Response: The Department supports the W visa program in the bill and looks forward to 

working with Congress on passage of the legislation. 
643 

Question#: 15 

Topic: 1 temporar) worker program 2 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: In 1996. after the 1993 World Trade Center attack, Congress mandated that 

the immigration service, with cooperation from schools and universities, collect 

information on foreign students. This system took years to get up and running. In fact, it 

still wasn't in place on 9/11. While it's operational today, there's still work to be done to 

make that system effective. Yet, the bill would require the U.S. Citizenship and 

lmm igration Service[ s] -the same agency in charge of the legalization program, EVerify, and every other immigration benefit- to set up and operate a monitoring system 

for employers who use the new W visa program. The bill clearly lacks instruction on 

how your Department will establish and maintain this very critical monitoring system, 

exposing a huge vulnerability. How do you anticipate setting up this system, and when 

would it be operational? 

Response: IfUSCIS is to establish and operate a W monitoring program, it will work 

with other departments and agencies to build on their expertise implementing similar 

systems. US CIS will need to 1) hire staff to design and operate the system, 2) educate 

employers on their obligations and how the system will track them, 3) educate 

government agencies on the infonnation that will be kept and appropriate uses of that 

information, 4) establish protocols to notifY other government agencies of potential 

violations ofW laws and regulations, and 5) ensure appropriate resources are designated 

for the creation and maintenance of the system. It also will be necessary to ensure that it 

has sufficient staff and resources to address W noncompliance, and that DHS, DOS, and 

other appropriate government entities have access to the system. 
644 

Question#: 16 

Topic: temporUI) \\Orker program 3 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

5.744 

Primary: The llonorahle Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: The bill creates the Bureau oflmmigration and Labor Market Research as an 

independent statistical agency within the U.S. Citizenship and Immigration Services. The 

Bureau will devise a methodology to determine the annual change to the cap for W visas. 

The new Commissioner ofthis Bureau will designate shortage occupations, in need of 

workers, so that an employer can petition the Commissioner for a determination of 

whether a particular occupation in a particular area has been deemed a shortage 

occupation. 

Why is there a need to create this new Labor Market Research agency housed in the U.S. 

Citizenship and Immigration Services? Why not put it in the Labor Department, which 

undoubtedly has access to similar information? Particularly when the bill appropriates, 

not authorizes, but appropriates $20 million to establish the Bureau. Aren't there more 

efficient and cost-saving ways to handle this? 

The bill permits employers to "lobby" the Commission of the new Bureau for a 

determination of whether they can fill particular jobs with temporary workers as opposed 

to U.S. citizens. What kind of message does that send to the public, especially when the 

bureau is meant to be an "independent statistical agency"? 

Response: The Bureau of Immigration and Labor Market Research would be tasked with 

important and significant new responsibilities. To perform these responsibilities, USCJS 

may request data from the Department of Labor, including the Bureau of Labor Statistics, 

and Department of Commerce. USCIS already tracks and reports annually on labor 

statistics related to the H-1 B. H-2B. and EB-5 programs. Expanding these duties to 

encompass the new W visa category is a natural extension of current US CIS 

responsibilities. 

The bill permits employers to petition the Commissioner "for a determination that a 

particular occupation in a particular metropolitan statistical area is a shortage 

occupation." However, the bill also requires the Bureau to publish in the Federal 

Register, subject to an opportunity for public comment, the methodology to designate 

shortage occupations, to ensure robust public input and transparency. 
645 

Question#: 17 

Topic: legalization/RPI status I 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Your testimony stated that the Department has removed a record number of 

criminals from the United States. But, I'm afraid that some parts of the bill we're 

considering would undermine the work of your agents, further weakening the confidence 

of the American people that \ve're serious about enforcing the laws. The bill states that 

individuals here illegally who apply for RPI status are not made ineligible even if they've 

been convicted of numerous misdemeanor offenses. As written, only ifsomeone's been 

convicted, on different days, of 3 or more offenses are they ineligible for RPI status. So, 

if someone was convicted of 10 misdemeanor offenses on one day, then that person isn't 

ineligible? 

Response: The bill contains several grounds of ineligibility for registered provisional 

immigrant (RPI) status. Applicants with criminal convictions are ineligible for RPI status 

if they have been convicted of a felony, an aggravated felony, three or more 

misdemeanors on different dates, or of an offense that makes the applicant inadmissible 

under section 212(a)(2) ofthe Immigration and Nationality Act. Depending on the 

offense or conviction. a single misdemeanor may render an applicant ineligible. For 

example, the term "aggravated felony" includes both misdemeanor and felony 

convictions that fit with the definition of that term. An applicant who has been convicted 

of a misdemeanor controlled substance offense is inadmissible under section 212(a)(2). 

Likewise, an applicant who has been convicted of two or more crimes involving moral 

turpitude is inadmissible under section 212(a)(2) regardless of whether those convictions 

are misdemeanors or felonies. These grounds of ineligibility capture many individual 

misdemeanor offenses. Other misdemeanors that are not aggravated felonies, do not 

relate to controlled substances, and do not involve moral turpitude will still render an 

applicant ineligible if the applicant has convictions for three or more misdemeanor 

offenses, and ifthe alien was convicted on different dates for each of the offenses. 
646 

Question#: 18 

Topic: JegalizationiRPI status 2 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act. 

S.744 

Primary: I The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: In the past, there has been an attempt to impose a time limit for federal agents 

to complete background checks on aliens who apply for legalization. Will you assure us 

that, under your leadership, no such time limit would be imposed? 

Response: The majority of background checks that USCIS performs are resolved in a 

timely manner with assistance from law enforcement agencies and the intelligence 

community. When a check returns derogatory infonnation, USCIS will, whenever 

necessary, coordinate with its law enforcement and or intelligence community partners to 

de-conflict the returned information prior to adjudicating any benefit. This external 

coordination and deconfliction may add additional time to the adjudication process, but 

USC IS considers this a necessary step in its ability to identify fraud and national security 

concerns. Beyond deconfliction, USCIS will generally withhold adjudication of 

applications when the applicant is subject to a law enforcement or national security 

investigation. USC IS will withhold adjudication 1) to ensure that USCIS does not 

compromise an ongoing investigation by granting or denying a benefit or status, and 2) so 

that it can best determine eligibility. 
647 

Question#: 19 

Topic: Jcgalizalion/RPI status 3 

Hearing: order Security. Economic Opportunity. and Immigration Modernization Act. 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The bill simply provides authority to the Secretary of Homeland Security to 

require an applicant for Registered Provisional Immigrant status to appear in person for 

an interview. Congress said that anyone applying to enter the country from abroad 

should undergo an in-person interview. Why should this be any different? Under your 

leadership. would you require those who apply for legal status to undergo an interview 

with agents? How many times, and under what circumstances, have DACA applicants 

been interviewed? 

Response: USCIS employs robust tools to safeguard the integrity of the adjudication 

process and, given the evidence we see in other benefits streams, believe interviewing all 

RPI applicants may be unnecessary to achieve accurate adjudications, safeguard security, 

or mitigate fraud. We support having the authority to conduct interviews ofRPI 

applicants in our discretion. USCIS's ability to determine interview selection criteria is 

an integral component of the strategy to move adjudication production forward and 

assures USC IS of another tool it can use to resolve fraud, public safety or other national 

security and law enforcement concerns. We develop our operational processes carefully 

and will examine our interview procedures under any new legislation that is signed into 

law. 
648 

Question#: I 20 

Topic: legalization/RPI status 4 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The bill prohibits the Secretary to detain or remove any person during the 

application period, with limited exceptions including those whose RPI status has been 

revoked. What action would the department take against aliens during the application 

process who are a serious national security, public safety or health risk? 

Response: The Department of Homeland Security (DHS) will continue to prioritize its 

civil enforcement efforts on those individuals who pose a risk to public safety. such as 

those who are convicted of violent crimes and other serious felonies. and recent border 

crossers. DHS will also continue to pursue criminal investigations consistent with its 

public safety and national security statutory authorities. 
649 

Question#: 21 

Topic: legalization/RPI status 5 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: One of the requirements under this bill- and previous bills in the last several 

years- is that those here illegally would have to pay back taxes before they are legalized. 

The bill lacks detail about how this would actually be carried out. Given that your 

department will have to process millions of people and detennine if they paid all their tax 

liabilities, how do you envision this working? 

Response: The Department is confident that working in coordination with the Internal 

Revenue Service, we can adhere to the requirements of the legislation and process these 

applicants. 
650 

Question#: 22 

Topic: lcgalization/RPI status 6 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primar)·: The I Ionorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: If an alien provides information in an application that is law enforcement 

sensitive or criminal in nature, should that information be used by our government and 

not be protected under confidentiality provisions- even for law enforcement and national 

security purposes? b) Does the language, in the department's opinion, preclude the 

ability to disclose information related to visa fraud or immigration fraud with law 

enforcement entities? c) If an applicant provides information in an application that 

clearly renders him ineligible and commits a serious crime that would warrant his 

immediate removal, shouldn't the government be able to use that information to place 

him in deportation proceedings? 

Response: Under present law, law enforcement in most cases may use the infonnation 

provided in ot1icial documents for official purposes. Aliens who knowingly provide false 

information on official documents may also be prosecuted under 18 U.S.C. § I 001. 

Section 2104 of S. 744, the Border Security, Economic Opportunity, and Immigration 

Modernization Act would generally restrict use of information furnished in an application 

filed under proposed Immigration and Nationality Act sections 2458, 245C, and 2450 to 

determinations of eligibility under those provisions, but requires that such infonnation be 

disclosed for national security and certain criminal investigative purposes that do not 

relate to applicants' immigration status. 
651 

Question#: 23 

Topic: legalization/RPJ status 7 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization Act 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The bill doesn't make gang membership an inadmissible or deportable 

offense, It only renders them so if they commit a felony, Should gang members be 

allowed to benefit from a legalization program? 

Response: DHS is committed to prioritizing its civil enforcement resources and ensuring 

that those individuals who pose a risk to public safety, such as those individuals 

convicted of violent crimes and felonies, are removed from the U,S. Similarly, consistent 

with its statutory authorities, DHS conducts criminal investigations of transnational gang 

activity in furtherance of public safety and security. 
652 

Question#: 24 

Topic: lcgalizationiRPI status 8 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act, 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Does the bill allow those who have current investigations for having filed and 

been denied applications under another identity to be eligible for legalization/RPI status? 

Response: Section 212(a)(6)(C) of the Immigration and Nationality Act does not apply to 

individuals applying for legalization under the bill unless based on the act of unlawfully 

entering the United States after the date of enactment or misrepresentations related to the 

application. 
653 

Question#: 25 

Topic: legalization/RPI status 9 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: Should people that have been denied legalization through the program be 

placed in immigration proceedings and removed? 

Response: The bill would allow certain noncitizens who are currently unlawfully present 

and who entered the United States prior to December 31, 2011. to apply for registered 

provisional immigrant (RPl) status. DHS anticipates that, consistent with the nation's 

immigration enforcement laws, it would continue to prioritize the removal of aliens who 

pose a danger to national security or public safety. 
654 

Question#: 26 

Topic: legalizationiRPI status I 0 

Hearing: The Border Sccurit;-. Economic Opportunity. and Immigration Modernization Act 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: You responded to questions after the February 13th, 2013, hearing by saying 

that USC IS plans to hire a total of 1,422 positions to support the DACA workload. How 

many more positions at USC IS, ICE and CBP will need to be hired to fulfill the 

requirements under S. 744? 

Response: The staffing needs of DHS component agencies will depend on the shape of 

any final bill. When a bill is passed. DHS will be in a better position to estimate hiring 

needs. 
655 

Question#: 27 

Topic: legalization/RPI status I I 

he Border Security. Economic Opportunity. and Immigration Modernization Act. 0 I S.74-l 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SEJ'\ATE) 

Question: Will the department publish guidelines or a broad policy memorandum 

regarding atlidavits that are allowed under the bill? How will fraud and abuse be 

prevented, and will training be provided to adjudicators on affidavits? Given that the 

department has accepted various forms of evidence for DACA, including receipts for 

purchase of internet video games, what has the department learned about affidavits and 

what will the department change from the DACA guidelines? 

Response: Immigration law has long permitted the use of affidavits as evidence. DHS 

regulations at 8 C.F.R. § 103.2(b)(2) provide general guidance for the use of affidavits: 

The non-existence or other unavailability of required evidence creates a 

presumption of ineligibility. If a required document, such as a birth or 

marriage certificate. does not exist or cannot be obtained, an applicant or 

petitioner must demonstrate this and submit secondary evidence, such as 

church or school records, pertinent to the facts at issue. If secondary 

evidence also does not exist or cannot be obtained. the applicant or 

petitioner must demonstrate the unavailability of both the required 

document and relevant secondary evidence, and submit two or more 

affidavits, sworn to or affirmed by persons who are not parties to the 

petition who have direct personal knowledge of the event and 

circumstances. Secondary evidence must overcome the unavailability of 

primary evidence, and affidavits must overcome the unavailability of both 

primary and secondary evidence. 

See also, e.g .. 8 C.F.R. §§ !Ol.S(b). 103.5(a)(2). 204.l(g)(2)(ii). 204.2(a)(l)(i)B)(S). 

208.4(a)(5)(iii)(A), 208.9(b), 21 0.3(c). 214.2(h)(4)(iv). 214.2( o )(2)(iii), 21 6.4(a)(S)(v), 

245.1 (c)(8)(v)(E). 

USCIS officers are provided comprehensive training on the adjudication process for all 

USC IS applications and petitions. The training includes the evaluation of evidentiary 

records which may include affidavits in support of various aspects of a claim. US CIS 

offlcers are prepared to evaluate the totality of the evidence to determine if the requestor 

satisfies the burden. 
656 

Question#: 27 

Topic: legalization/RPI status 11 

Hearing; 1 The Border Security. Economic Opportunit)'. and Immigration tv1odernization Act. 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: Jl.'DICIARY (SENATE) 

When necessary USC IS officers may conduct interviews or request the assistance of the 

Fraud Detection and National Security Directorate (FDNS) assets to confirm the veracity 

of an affidavit. 
657 

Question#: 28 

Topic: legalization/RPI status 12 

Hearing: The Border Security, Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: Does this bill, or any other provision oflaw, penalize people here unlawfully 

trom falsely claiming eligibility for RPI status? Is there concern that aliens could falsely 

claim eligibility in order to avoid detention and removal? 

Response: U.S. criminal laws prohibit providing false information when submitting visa 

application information and other official documents. Section 3709 of the proposed 

legislation contains a new ground of inadmissibility based on convictions or admissions 

of committing offenses relating to immigration document fraud under 18 U.S.C. sections 

I 54 I, 1545, and 1546. In addition, although providing a revised waiver standard for 

certain grounds of inadmissibility in the adjudication of applications for registered 

provisional immigrant status, section 2101 provides that inadmissibility under section 

212(a)(6)(C)(i) of the INA may not be waived under the revised standard for 

'"representations relating to an application for registered provisional immigrant status.'' 

The Department of Homeland Security (DHS) may deny applications containing false 

information or lacking the information required by statutes and final rules. 

As in existing programs, DHS will continue to seek criminal prosecution to the fullest 

extent of the law to combat immigration fraud. Persons submitting fraudulent 

applications will be treated as an enforcement priority. 
658 

Question#: 29 

Topic: DACA 

Hearing: , The Border Security. Economic Opponunity. and Immigration Modernization Act. 

S.744 

Primary: The I Ionorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: On April 23rd, the U.S. District Court for the Northern District of Texas 

concluded that the Plaintiffs in Christopher L. Crane eta] v. Janet Napolitano are likely 

to succeed on the merits of their claim that the DACA directive violates 8 USC 

1225(b )(2)(A). This preliminary decision is reflects how the administration has 

overstepped its authority to reinterpret current law. How can the American people trust 

that you and this administration will faithfully carry out an immigration bill passed by 

Congress? 

Response: On July 31.2013, the U.S. District Court for the North District of Texas 

dismissed all of the Plaintiffs' claims in Crane v. Napolitano. The court concluded that 

the Civil Service Reform Act precludes the court from addressing the claims by depriving 

the court of subject matter jurisdiction. Thus, the court concluded it could not decide the 

merits of Plaintiffs' claims, and dismissed the case in its entirety. More generally, the 

Department of Homeland Security has dedicated unprecedented levels of personnel. 

technology, and resources in support of smart, commonsense enforcement of our 

immigration laws. That would continue under any new law. The Supreme Court has 

recognized the role of discretion in enforcing our immigration laws. See, e.g.. Arizona v. 

United States. 132 S. Ct. 2492, 2499 (2012) ("A principal feature of the removal system 

is the broad discretion exercised by immigration officials.''); Reno v. Am. -Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 (1999) (instructing that ''[a]t each stage the 

Executive has discretion to abandon the endeavor" of an immigration enforcement 

action). 
659 

Question#: 30 

Topic: stateless 

Hearing: The Border Security. Economic Opportunity. and Immigration !\1odcmi?ation Act. 

S.744 

Primary: The I Jonorahle Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: Section 3405 provides for protections for certain "stateless'' persons in the 

United States and allows the Secretary of Homeland Security to designate specific groups 

of individuals who are considered stateless persons. This provision appears to grant 

blanket relief to any "stateless'' person who is in the United States, even though a date of 

physical presence is not identified. Does the administration support this provision? 

Given that this provision has serious implications for national security and delegates 

unlimited power to you as Secretary, can you describe who would be designated under 

this section if the bill were to pass as written? 

Response: DHS supports the Senate bill and we look forward to seeing any proposal 

from House of Representatives and working with Congress on these issues. DHS 

believes that robust screening requirements employed in the refugee and asylum 

programs, including security screening protocols, would inform the structure of such a 

program. 
660 

Question#: 31 

Topic: timelincs 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorahle Charles F. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: Are the time lines provided in the bill, including the requirements for reporting 

and issuing regulations, appropriate and realistic? 

Response: DHS is confident it will meet the deadlines specified in the bill. 
661 

Question#: .32 

Topic: immigratiun s: stem 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: Jc1DICI/\RY (SEN/\ TEl 

Question: There is concern that terrorists have and will continue to exploit our 

immigration system to enter and remain in the United States. One witness on April 22 

testified that terrorists have used our generous asylum laws to gain status. Can you 

provide statistics on the number of people in the United States that have sought asylum 

and were granted asylum in each of the last 10 years? Are there ways to improve the 

process so that terrorists don't abuse the system? 

Response: 

Affi . 1rmat1ve 1 A SV Urn A \DDIIC3(1011S r b DV F' !SCa I Y ear 

FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 

Total new case receipts 58,404 43,339 27,908 24,260 24,288' 25,674 

19,611 12,176 10,278 9,897 10,059 10,191 

lneliQible for Asylum 34,263 28,806 21,657 20,646 21,263 26,708 

Administratively 

Closed 32,527 49,736 77,016 85,926 45,322 22,635 

Approval Rate 36% 30% 32% 32% 32% 28% 

FY 2013 

FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 

Total new case receipts 25,505 24,553 28,444 35,067 41,883 44,446 

Approvals 9,796 9,614 9,174 10,700 12,991 10,981 

Ineligible for Asylum 21,562 17,283 16,742 18,369 18,870 13,074 

Administratively Closed 14,007 5,621 3,563 4,336 5,032 4,294 

Approval Rate 31% 36% 35% 37% 41% 46% 

USC IS's Asylum Division encounters the world's most vulnerable population-those 

who have fled persecution-and understands that our nation's time-honored tradition of 

protecting refugees is strengthened when the integrity of the program is above reproach. 

For the past two decades, the Asylum Division has implemented a number of safeguards 

and measures to establish an accountable, reliable, etlicient, and etTective process for 

adjudicating asylum claims that simultaneously deters fraud and safeguards our national 

security. 

Current integrity measures include: 

1 These figures do not include dcfcnsiYe asylum application filings and grants of asylum by the Department 

of Justice's Executive Oflice t(Jr Immigration Review (EOIR). 
662 

Question#: 32 

Topic: immigration system 

Hearing: The Border Security. Economic Opportunity. and Immigration Modcmiz1ltion Act. 

5.744 

Primary: The Honorable Charles l . Grassley 

Committee: JUDICIARY (SENATE) 

• A specially-trained cadre of asylum oftlcers trained in relevant law. intervievdng 

techniques, fraud detection and prevention, national security issues, and country 

conditions research. Each asylum office is required to devote ten percent of its 

work week to training to maintain such skills and stay abreast of the latest 

developments in these areas. 

• An in-person, in-depth interview of every principal asylum applicant, which 

allows the officer to fully explore the asylum claim and any credibility issues. To 

ensure the accuracy of interpretation and prevent fraud, professional, telephonic 

interpreters monitor the applicants' interpreters. 

• An extensive battery of required security checks to confirm each applicant's 

identity. uncover criminal or other derogatory information. and identify 

infonnation. such as travel history, that could impact the decision. Mandatory 

checks include name checks and fingerprint verification against numerous 

department and external agency databases, including law enforcement and the 

intelligence community. Specifically, biographic checks include FBI name 

checks. Customs and Border Protection TECS. Immigration and Customs 

Enforcement ENFORCE Alien Removal Module, Department of State (DOS) 

Consular Consolidated Database (CCD). and National Counterterrorism Center 

vetting. Biometric checks include screening against the FBI's IAFIS database, 

the Office of Biometric Identity Management's (OBIM; formerly US-VISIT) 

IDENT database. and for certain applicants. vetting against the Department of 

Defense's Automated Biometric Identification System (ABIS) database. 

Additional integrity measures such as government-funded interpreter monitors. 

information sharing \Vith other countries. and involvement of specially trained 

Fraud Detection and National Security Immigration Officers as necessary would 

also be utilized under the proposed process. The Asylum Division also conducts 

information sharing with Canada, the United Kingdom, Australia, and New 

Zealand. When necessary, officers may also request that USCJS offices overseas 

or U.S Embassies or Consulates abroad verify documents or information that an 

asylum applicant has submitted in support of an asylum application. 

• Supervisory review of certain categories of sensitive cases. including national 

security-related cases, helps ensure consistency, spot potential fraud patterns. and 

identify possible national security concerns. Such decisions are also reviewed by 

the training and quality assurance branch in headquarters. which must concur with 

the decision before it is issued. 

• Special procedures for identifying and handling for cases involving national 

security concern, which ensure that our officers are working with relevant law 

enforcement and intelligence community partners to fully understand any 
663 

Question#: 32 

Topic: immigration system 

Hearing: The Border Security, Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

potential threats posed by applicants, and ensure that asylum decisions are based 

on all relevant information available. 

• Posting a Fraud Detection and National Security Directorate (FDNS) officer at 

every Asylum Office. FDNS officers are trained to investigate asylum requests 

involving potential fraud, public safety, or national security concerns, and they 

work with the asylum adjudicators to ensure that all relevant information is 

available and considered when adjudicating the request for asylum. This includes 

liaising with local Joint Terrorism Task Forces regarding these cases. 

The Asylum Division has continually sought to enhance its processes by employing 

strong integrity measures and will continue to explore the availability of new mechanisms 

in the future. 
664 

Question#: 33 

Topic: asylum screening process 

Hearing: The Border Security. Economic Opportunity. and Immigration Modemb1tion Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: During the hearing, Senator Feinstein inquired about a provision that would 

streamline the asylum screening process by allowing your Department to grant asylum 

immediately following a screening interview. She expressed fear that your Department 

would not confer with the State Department, as it does not, to verify the veracity of an 

asylum applicant's claims. While you responded that your Department has good 

relationships with the State Department, you failed to answer whether proper checks 

would be done before granting asylum to anyone who shows up at our ports of entry. 

Can you please elaborate on this matter and explain how the Department would work 

with State? How does this not make us more vulnerable to those who will try to take 

advantage of this expedited process? 

Response: If the asylum process is modified to allow asylum officers to grant asylum 

following a credible fear screening interview, those asylum applicants will undergo the 

same full battery of background identity and security checks currently required for 

affirmative asylum applicants. This includes biographic and biometric checks. 

Biographic checks include FBI name checks, Customs and Border Protection TECS, 

Immigration and Customs Enforcement ENFORCE Alien Removal Module, Department 

of State (DOS) Consular Consolidated Database (CCD), and National Counterterrorism 

Center vetting. Biometric checks include screening against the FBI's IAFIS database, the 

Office of Biometric Identity Management's (OBIM; formerly US-VISIT) !DENT 

database, and for certain applicants, vetting against the Department of Defense's 

Automated Biometric Identification System (ABIS) database. Additional integrity 

measures such as mandatory supervisory review of all asylum decisions, governmentfunded interpreter monitors, information sharing with other countries. and involvement of 

specially trained Fraud Detection and National Security Immigration Officers as 

necessary would also be utilized under the proposed process. 

The Asylum Division's officers regularly use DOS country of origin information in 

adjudicating asylum claims. DOS publishes a variety of reports containing country of 

origin information. Apart from its annual Human Rights Reports, DOS also releases 

annual reports on religious freedom, general country background information. fact sheets, 

and information on visa reciprocity and document availability. DOS releases periodic 

topical reports and oversees the Humanitarian Information Unit (HIU) that drafts reports, 

maps, and statistics about humanitarian crises all over the world. This DOS country of 

origin infonnation provides a context for asking relevant questions during the interview 

and evaluating the applicant's credibility. Informed questioning may expose 
665 

Question#: 3 3 

Topic: asylum screening process 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.7H 

Primary: The Honorable Charles E. Grasslcy 

Committee: JUDICIARY (SENATE) 

inconsistencies and falsehoods in the applicant's claim, and may also help re-establish 

credibility when something appears inconsistent or implausible at first impression. 

Additionally, since 2004, U.S. Embassies and Consulates capture biometrics on visa 

applicants. These records are placed into OBIM's !DENT database. Since November 1, 

2006, the Asylum Division mandates a check of DOS's CCD for any case in which an 

OBIM check indicates an existing visa encounter. The information the applicant 

presented to the DOS Consular Officer when applying for the visa that appears in CCD 

may support or refute the information the applicant provided to USCIS and must be 

considered in adjudicating the asylum claim. CCD data regarding a visa application may 

be valuable to the Asylum Division's officers in providing information about the identity, 

previous travel history. method of entry into the United States, or background of an 

asylum applicant. At minimum, a visa application adjudication, especially if it contains 

biometric data. can establish that the applicant appeared in person at an Embassy or 

Consulate on the date stated in the visa record. When a visa record is retrieved 

biometrically in !DENT. the record may reveal an identity, travel history, or other 

information that was not previously made available to USC IS. 

In cases where the Asylum Division believes DOS may have information specific to an 

asylum applicant or the applicant's situation, the Asylum Division routinely reaches out 

to DOS which often provides written comments on the case. Similarly, DOS routinely 

reaches out to the Asylum Division on cases that have come to its attention. 

Additionally, DOS conducts overseas verification of information in certain cases when an 

Asylum Officer needs to verify information contained in an application or supporting 

documentation that originated overseas. In such cases. this exchange may extend the 

adjudication time line. as DOS comments and/or any verifying information are considered 

towards the applicant's eligibility for asylum. 

Engagement with DOS at various levels will continue even if the asylum process is 

modified to allow asylum officers to grant asylum following a credible fear screening 

interview. 
666 

Question#: 34 

Topic: TsarnacY Brothers I 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: When did Dzhokhar Tsarnaev first arrive in the United States? 

When did Tamerlan Tsarnaev first arrive in the United States? 

Please provide a timeline of when the Tsarnaev brothers' parents claimed asylum in the 

United States. 

What was the basis for granting the Tsarnaev brothers Legal Pennanent Resident status? 

When did DHS officials first have questions about Tamerlan Tsarnaev? Please detail all 

investigative measures undertaken regarding him. 

Was DHS aware at any time in 20 II that the FBI was investigating Tsarnaev? If so: 

When and for what? 

Did DHS give any consideration at that time to revoking Tsarnaev's Legal Pennanent 

Resident status? If so. why wasn't it ever revoked? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
667 

Question#: 35 

Topic: Tsarnacv Brothers 2 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization /\ct. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SDJATE) 

Question: During yesterday's hearing. I asked you: "Is it true that his identity document 

did not match his airline ticket?" You responded: "There was a mismatch there .... But 

even under--even with the misspelling, under our current system, there are redundancies, 

and so the system did ping when he was leaving the United States.'' 

On what specific document was Tamerlan's name misspelled? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: What redundancies were you referring to? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals. DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: Did TSA crosscheck Tsarnaev's passport and Legal Permanent Resident Card 

with his boarding pass when he left the country? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: What steps should TSA officials take if an individual's boarding pass does not 

match their identity documentation when they go through airport security? 

Response: !fa passenger's name on the boarding pass does not match the name on the 

identity document. the Transportation Security Administration official must contact the 

Identity Verification Call Center and request the name on the identity document be 

checked against the watch list, which is comprised of full Terrorist Screening Database 

(TSDB) entries containing full name and date of birth (which includes No Fly and 

Selectee Lists). and the Centers for Disease Control and Prevention (CDC) Do Not Board 

List. The IVCC contacts the Secure Flight Operations Center (SOC) and provides the 

name on the boarding pass and the name on the identity document to the SOC. The SOC 

manually enters the data into the Secure Flight system to perform a manual review 
668 

Question#: 3 5 

Topic: Tsarnac,· Brothers 2 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grasslcy 

Committee: JuDICIARY (SE:\ATE) 

against the watch list. The data is also matched against the data that was submitted by the 

airline for the passenger. 

Question: Did TSA officials take those steps in the case ofTsarnaev in January 2012? If 

not, why? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: Was Tsarnaev questioned upon his departure about the discrepancy regarding 

the misspelling to which you referred? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
669 

Question#: 36 

Topic: Tsarnaev Brothers 3 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JUDICIARY (SENATE) 

Question: The Assistant Director of the FBI indicated to Senator Graham that they 

received no notification when Tamerlan Tsarnaev left the United States in January 2012. 

However, you stated yesterday: "The system pinged when he was leaving the United 

States States. By the time he returned, all investigations had been --the matter had been 

closed." 

(a) What "system pinged" when Tsarnaev was leaving the United States? 

(b) What are the positions and agencies of the individuals who received notification 

of this initial ping? 

(c) What further notifications did DHS make to other agencies, including the FBI, 

based on this initial ping? Please provide the date and method each further notification 

was made. By agency and position, what individuals received the further notifications? 

(d) What subsequent steps, if any, were taken with this notification? 

(e) Did any ofDHS's component agencies notify FBI ofTamerlan's travel to Russia? 

If so, which agency, on what date, and by what method? If not. why not? 

(a) What was the date ofTamerlan's departure from the United States in January 

2012? 

(b) What was the date ofTamerlan's return to the United States in July 2012? 

(c) You stated that when Tamerlan returned to the United States, "all investigations 

had been closed on him." What investigations were open or opened on Tamerlan in 

January 2012? 

(d) According to one press account. "many agencies were aware of Tsarnaev' s 

return" to the United States in mid-July.[2] Did Tamerlan's return to the United States 

receive any notice by DHS or any of its components? Was this different from what a U.S. 

citizens or Legal Permanent Resident would typically receive when re-entering the 

United States? If so, why? 

(e) Did any ofDHS's component agencies notify any other agency (including 

agency-to-agency within DHS) that Tamerlan was re-entering the United States? 

(f) According to another press account, "An official at the Department of Homeland 

Security said [Tamerlan] was on the 'radar screen' of agents in Boston from when he 

returned to the U.S. to the end of autumn." Was this official's statement accurate? If so, 

what does that mean? Why was Tamerlan on DHS's radar? Why did he remain on 

DHS's radar in the weeks between when he returned to the United States in mid-July and 

when he applied for citizenship on September 5, 201 2? 

(g) How does an individual get added into TECS such that the system issues alerts 

when that individual enters or departs the United States? 
670 

Question#: 36 

Topic: Tsarnaev Brothers 3 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The I Ionorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

(h) What is the process for removing someone from TECS? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
671 

Question#: 3 7 

Topic: Tsamacv Brothers 4 

Hearing: The Border Security. Economic Opportunity. and Immigration Modcmiz11tion Act. 

S.744 

Primary: The Honorable Charles E. Grass ley 

Committee: JUDICIARY (SENATE) 

Question: You stated yesterday: ''By the way, the bill will help with this because it 

requires that passports be electronically readable, as opposed to having to be manually 

input. It really does a good job of getting human error, to the extent it exists, out of the 

process." 

What country's passport did Tamerlan Tsarnaev use to depart and re-enter the United 

States? 

If this legislation had been in place, how would it affect individuals traveling with a 

foreign passport? 

What procedures does the U.S. have in place to verify the integrity of passports issued 

from other countries? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
672 

Question#: 38 

Topic: Dzhokhar Tsamae' 

Hearing: The Border Securit:. Economic Opportunity. and Immigration Modernization Act. 

5.744 

Primary: The Honora hie Charles L. Grassle) 

Committee: JUDICIARY (SENATE) 

Question: According to press reports. Dzhokhar Tsarnaev became a U.S. citizen on 

September II. 2012. 

(a) When did Dzhokhar submit his application for citizenship? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals. DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (b) Did DHS conduct background checks on Dzhokhar's family members in 

the course of his citizenship process? If not, why not? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (c) Did DHS officials conducting the background investigation on Dzhokhar 

know about Tamer! an's interview by FBI? If so, did they contact the FBI about 

Dzhokhar applying for citizenship? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (d) What derogatory information was on file with DHS about Tamerlan while 

his brother's citizenship application was being considered? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

(e) Why was Dzhokhar Tsarnaev given citizenship given the derogatory information 

about Tamerlan on file with DHS? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
673 

Question#: 39 

Topic: Tamerlan Tsarnaev 

Hearing: The Border Security. Economic Opportunity. and Immigration ModemiYation Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: JCDICIARY (SENATE) 

Question: 

(a) During Tamerlan 's citizenship process, what alerted DHS to the fact that he had 

been interviewed by the FBI? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (b) What databases were utilized in the background check ofTamerlan? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (c) During the background check ofTamerlan, what referrals or requests were 

made to the FBI and what responses, if any. were received? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (d) When DHS learned that the FBI had interviewed Tamerlan in 201 ], did 

DHS notify the FBI that Tamerlan had applied for citizenship? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: (e) Does DHS have direct access to Terrorist Identities Datamart Environment 

(TIDE) or Terrorist Screening Database (TSD) in conducting background checks for 

those applying for United States citizenship? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals, DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
674 

Question#: 40 

Topic: ICE custod; I 

Hearing: The Border Securit;. Economic Opportunity. and Immigration 1vlodernization Act. 

S.744 

Primary: The Honorable Charles E. Grassley 

Committee: Jl.'DIC!ARY (SENATE) 

Question: The Associated Press reported on April20 that HSI arrested two individuals in 

New Bedford. Massachusetts. Do the individuals have any connection to either of the 

Tsarnaev brothers? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals. DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: Are the two individuals suspected in any other crimes? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals. DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 

Question: Are any individuals being deported as a result of the investigation that began 

with the Boston Marathon bombing? 

Response: Given the sensitive nature of the facts requested relating to specific 

individuals. DHS will be happy to answer these questions in a briefing upon receipt of a 

request for such a briefing by the Committee. 
675 

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676 

Question#: ~I 

Topic: ICE custc>dy 2 

Hearing: The Border Security. Economic Opportunit). and Immigration Modernization Act 

S.7H 

Primary: lhc Honomblc Charles E. Grasslc; 

Committee: I Jt DICIARY (SE~ATE) 
677 

Question#: 41 

Topic: ICE custody 2 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization AcL 

S,744 

Primary: The Honorable Charles E, Grassley 

Committee: JUDICIARY (SENATE) 
678 

Question#: 42 

Topic: resources 

Hearing: The Border Security, Economic Opportunity. and Immigration Modernization Act, 

S.744 

Primary: The Honorable On·in G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: How does the Department of Homeland Security determine whether the 

resources it is dedicating to border security are effective? 

Response: DHS uses a number of indicators and outcomes to evaluate security efforts at 

our borders, including such factors as resource deployment, crime rates in border 

communities, and apprehensions. All enforcement statistics and economic indicators 

point to increased security and an improved quality of life; however, no single metric can 

conclusively define the state of border security. 
679 

Question#: 43 

Topic: metric 

Hearing: The Border Security, Economic Opportunity. and Immigration Modernization Act 

S.744 

Primary: The Honorable Onin G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: At last week's Homeland Security and Government Affairs Committee 

hearing, Senator McCain expressed frustration that there was not an established metric to 

rate the security of our borders. 

Have you reconsidered or thought of a better answer to this question than the one you 

gave Senator McCain last week? 

I agree with him, measuring our success is crucial. 

Do you believe there is a way to give an accurate depiction of the security of our border? 

Response: The U.S. Border Patrol's 2004 National Strategy created a focus on building 

up important personnel. technology and infrastructure resources, measured at that time by 

miles of operational control. By 2012 the Border Patrol's improved capabilities were 

called on to address a changed border environment where converging threats to national 

security required a risk-based approach and strategy. To show progress toward 

enforcement improvements that promote a low risk border, we developed a new set of 

performance measures to support the 2012-2016 Border Patrol Strategic Plan. 

Our measure set contains performance measures that have already begun to inform our 

effectiveness. Beginning in Fiscal Year (FY) 2013 we began reporting a strategic 

measure associated with the Government Performance and Results Act, Modernization 

Act of20 I 0 (GPRAMA). called '"percent of people apprehended multiple times," 

commonly known as recidivism. This measure, along with an accompanying 

management level measure titled "average number of apprehensions for persons with 

multiple apprehensions;· allows us to demonstrate our ability to hold recidivism down by 

applying systematic and consistent consequences to those who attempt to cross the border 

illegally. Another strategic GPRAMA measure, the Interdiction Effectiveness Rate, was 

introduced beginning in FY 2014. and shows our ability to apprehend or turn back would 

be illegal entrants. 

Several other performance measures are in the development stage and will add important 

context to our operations on the border over time. The first is development of an index 

that will quantify situational awareness along the border. Also under development is a 

measure of Border Security Readiness which will show the readiness status of Border 

Patrol mission critical elements such as personneL equipment, infrastructure and training. 
680 

Question#: 43 

Topic: metric 

Hearing: The Border Security. Economic Opportunity, and Immigration ModerniDltion Act. 

S.744 

Primary: The Honorable Orrin G. Hatch 

Committee: JUDICIARY (SENATE) 

Lastly. mobility measures are also being planned for the out years to show the Border 

Patrol's ability to deploy a highly flexible, scalable, and mobile force to quickly respond 

to and overwhelm emerging threats. Taken collectively these finalized measures will 

form a set of measures that gives an accurate depiction of levels of risks along the 

entirety of our borders as well as specific border areas. 

Challenges will always remain, but CBP is dedicated to continuing this progress towards 

a safer, stronger and more secure border. 
681 

Question#: 44 

Topic: marijuana plants 

Hearing: The Border Security. Economic Opportunity. and Immigration ~1odernization Act. 

S.744 

Primary: The Honorable Orrin G. Hatch 

Committee: JUDICIARY {SENATE) 

Question: Over the years. millions of marijuana plants have been eradicated from federal 

public lands. Outdoor marijuana cultivation is the chief source of revenue for Mexican 

drug trafficking organizations. Growing marijuana in the U.S. saves traffickers the risk 

and expense of smuggling their product across the border and allows gangs to produce 

their crops closer to local markets. 

During the past several years, marijuana growing operations have been a serious problem 

on Utah's public lands where tens of thousands of plants have been seized. 

Law enforcement officials confirm that all of the perpetrators arrested at these marijuana 

grows were both present in the United States illegally and armed with firearms. 

This problem is not unique to Utah. Other states with substantial federal landsincluding Colorado, California, Idaho. Nevada, Oregon and Michigan are also seeing a 

spike in marijuana cultivation by Mexican drug trafficking organizations. 

What are your thoughts on providing tougher penalties for cultivating marijuana on 

federal lands? 

Response: Since the question relates to the domestic cultivation of this drug, DHS defers 

to the Department of Justice (Dol) and the Drug Enforcement Administration. 
682 

Question#: 45 

Topic: applying thr legalization 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744 

Primary: The Honorable Orrin G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: How can we ensure that those applying for legalization under the Border 

Security, Economic Opportunity, and Immigration Modernization Act are who they say 

they are? 

Response: Because the burden will be placed on individuals to demonstrate their 

eligibility for RPI status and the U.S. Department of Homeland Security (DHS) has 

extensive anti-fraud measures, we believe we have the tools necessary to detect and deter 

fraudulent claims to identity. DHS has a stringent process to determine identification 

based on biometric and law enforcement database background checks, including TECS. 

If fraud is suspected or identity cannot be satisfactorily established, U.S. Citizenship and 

Immigration Services (USCIS) will conduct an in person interview and take other 

appropriate steps to verity an applicant's identity. 

USCIS's Fraud Detection and National Security directorate and U.S. Immigration and 

Customs Enforcement's (ICE) Homeland Security Investigations directorate will be 

actively engaged whenever fraud is suspected as part of an individual application at all 

stages of the legalization process. An individual who knowingly makes a 

misrepresentation, or knowingly fails to disclose facts, in an effort to receive legal status 

in this new process will be treated as an immigration enforcement priority to the fullest 

extent permitted by law, subjecting the individual to criminal prosecution and removal 

from the United States. 
683 

Question#: 46 

Topic: identity 

Hearing: 1 The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Orrin G. I latch 

Committee: JUDICIARY (SENATE) 

Question: I assume there will be facial recognition and fingerprint verifications built into 

the criminal background checks; but at the end of the day. it seems that as long as an 

individual hasn't committed a crime here in the United States. he or she could take on 

another identity. 

So, a lot hinges on the veracity of the documents presented when an immigrant applies 

for provisional status. 

What kind of vetting process will be in place to prevent identity theft and fraud? 

Response: USC IS has implemented robust fraud protections and processes to accurately 

determine identification. 

USCIS would perfonn background and security checks for all individuals who apply for 

Registered Provisional Immigrant status. Applicants aged 14 years and older would be 

subject to a TECS query, an FBI name check, and an FBI fingerprint check. Through its 

Application Support Centers (ASC), USClS would also capture applicant fingerprints, 

photographs, and signatures for purposes of identity management, background checks, 

and secure document production. 

TECS is a law enforcement communication system that, among other functions, supports 

the screening of travelers entering the United States and the screening requirements of 

other federal agencies. USClS has access to all wants, warrants, and lookouts listed in 

TECS and certain files within the National Crime Information Center (NCIC) database 

through TECS. as well as files which include wants/warrants. foreign fugitives, missing 

persons, registered sex offenders, deported felons, supervised releases, protection orders, 

known or suspected terrorists, terrorist organization members. and violent gang members. 

These checks provide information on individuals who may pose national security or 

public safety risks as well as indicators of potential fraud. Requestors with positive 

criminal history results, substantiated findings of fraud, or public safety or national 

security concerns are handled under the current Notice to Appear (NT A) policy. 

USCIS is also implementing its Customer Identity Verification program (CIY), which 

relics on collected biometrics to confirm that a subject who appears for an interview at a 

USCIS Field Office is the same person who earlier had their biometric information 
684 

Question#: 46 

Topic: identity 

Hearing: The Border Security. Economic Opportunity. and Immigration Modemization Act. 

S.744 

Primary: The Honorable Orrin G. !latch 

Committee: i JUDICIARY (SEl\ATE) 

collected by an ASC, or otherwise had their information stored in !DENT, typically 

through collection at a port of entry, during enforcement actions, or through placement on 

a biometrically-enabled watchlist. Applicants and petitioners will proceed to the 

interview or be issued their immigration document only after the Held oftlce has 

satisfactorily completed identity veritlcation using both biometrics and governmentissued identitlcation. 

USCIS also works in collaboration with U.S. Immigration and Customs Enforcement's 

(ICE) Forensic Laboratory to verify the authenticity of documents provided by the 

applicant. USC IS also has its own overseas verification process, which relies on 

personnel in-country to verify the provenance of documents suspected of being 

fraudulent. 

An individual who knowingly makes a misrepresentation. or knowingly fails to disclose 

facts, in an effort to receive legal status in this new process will be treated as an 

immigration enforcement priority to the fullest extent permitted by law, subjecting the 

individual to criminal prosecution and removal from the United States. 
685 

Question#: 47 

Topic: E-V crit'y program 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Orrin G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: What margin of improvement do you expect from universally implementing 

theE-Verify program? 

As an aside, I agree with my colleagues that we should deploy this program immediately. 

Response: DHS has continually reduced the error rate for work authorized employees, 

and expects the error rate to continue to decline over time, including ifthe E-Verify 

program is expanded through legislation. 
686 

Question#: 48 

Topic: visa-exit system 

Hearing: The Border Security, Economic Opportunity, and Immigration :VIodemization Act 

S.744 

Primary: The llonorahle Orrin G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: The proposed legislation requires that a visa-exit system must be implemented 

for all international airports and seaports within 1 0 years. 

You mentioned in today's hearing that an entry-exit tracking system would be ready to go 

within years. Are you referring to a time frame of less than five years or within 10 years 

as provided by the legislation? 

Response: In May 2012, Department of Homeland Security (DHS) provided House and 

Senate Appropriators a short and long-term plan for recording the departure of aliens 

from the United States. The long-tenn plan (through 20 12-2020) called for the future 

research. development. and. if feasible, deployment of a biometric air exit system. In the 

short term. DHS has enhanced its existing exit system using biographic data. U.S. 

Customs and Border Protection (CBP) has been working closely with the Department and 

other components to develop the enhanced biographic exit program scheduled to be 

completed during 2014. This will be the first part of a comprehensive entry-exit tracking 

system. Through enhancing biographic entry-exit tracking, the Department will continue 

to improve its ability to identify and sanction overstays in the years to come. 

Paralleling efforts to enhance the existing biographic exit system, DHS continues to 

pursue an air biometric exit solution through research and testing of available biometric 

technologies led by the Science and Technology Directorate. Assuming initial testing 

proves fruitful, DHS plans to test biometric exit at one international airport by 2015. 

Pending the outcome of an operational test, DHS may submit future budget requests for 

incremental biometric air exit deployment. 

In summary, the enhanced biographic entry-exit system will be completed within the next 

four years. CBP believes that a biometric entry-exit tracking system in the air 

environment can be implemented around the 2018-2020 timeframe provided a feasible 

cost solution is identified and additional funding is appropriated. 
687 

Question#: 49 

Topic: new W visa 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernizntion Act, 

S.744 

Primary: The Honorable Orrin G. Hatch 

Committee: JUDICIARY (SENATE) 

Question: Let me ask you about the new W visa category for the low-skilled guest 

worker program. The bill allocates 20,000 visas in the first year with a gradual increase 

to 75,000 in the fourth year. 

Do you have any sense of whether this quota will address our country's needs and deter 

illegal immigration, or will we repeat the same mistakes made in 1986? 

Response: Temporary worker programs are an important part of immigration law. DHS 

supports the Senate bill and we look forward to seeing any proposals from the House of 

Representatives and working with Congress on these issues. 
688 

Question#: 50 

Topic: RPI applicants 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act. 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: During the hearing, I asked you about the discretion granted to you to waive 

certain inadmissibility requirements for classes of RPI applicants. In response, you 

referenced the language of the bill, saying, ''[T]here would be consideration based on the 

age of the conviction or the type of the conviction, whether the individual was the 

primary wage earner for a family, and the record since their prior conviction ... " 

However the Bill as written gives you discretion to determine what is or is not in the 

public interest. 

Can you help define what you would and would not consider as being in "the public 

interest" as it would apply to this situation? 

Also, when defining family unity, do you mean to include only immediate family such as 

(spouse and children) or do you plan to extend the family unity language further than 

that? 

Do you plan on setting forth any standards that will infonn the public and Congress of the 

foundations on which your discretion in this area will be based? 

Response: DHS supports the Senate bill and we look forward to seeing any proposals 

from the House of Representatives and working with Congress on these issues. Once the 

legislation is enacted, DHS will issue regulations implementing the legislation and 

provide any necessary definitions and other criteria. 
689 

Question#: 51 

Topic: LPR status 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

rr Honorable Mike Lee 

Committee: 

1 

Jl'DICIARY (SENATE) 

Question: You will have discretion to exempt other defined classes of individuals from 

the fee for adjustment to LPR status. 

For what classes of individuals will you w·aive the fee? 

Response: U.S. Citizenship and Immigration Services (USCIS) is funded largely by 

application and petition fees. Recognizing that some applicants cannot pay the filing fees, 

USCIS established a fee waiver process for certain forms and benefit types. 

Demonstrated inability to pay is the only reason USCIS will approve a fee waiver. 

Waiving a fee for one applicant transfers the cost of processing their application to other 

applicants through higher fees. Therefore, US CIS carefully considers the merits of each 

fee waiver request before making a decision. Under current guidance, to be eligible for a 

fee waiver, one of the following must be met: 

• the applicant or qualified members of their household are receiving a meanstested benefit. A means-tested benefit is one for which the individuals' 

income/resources determine eligibility and/or the benefit amount; 

• the household is at or below the 150% poverty level at the time of tiling; or 

• The applicant is experiencing a financial hardship that prevents payment of the 

filing fee, including unexpected medical bills or emergencies. 

The Department would evaluate the need to exercise the Secretary's discretion under this 

provision and would promulgate a specific policy to implement it. if required. 

Question: What information or standards will guide the decision on who receives the 

waiver? 

Response: Under current guidance, to be eligible for a fee waiver, one of the following 

must be met: 

• The applicant or qualified members of their household are receiving a meanstested benefit. A means-tested benefit is one tor which the individuals' 

income/resources determine eligibility and/or the benefit amount; 

• the household is at or below the 150% poverty level at the time of filing; or 

• The applicant is experiencing a financial hardship that prevents payment of the 

filing fee, including unexpected medical bills or emergencies. 
690 

Question#: 51 

Topic: LPR status 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization i\ct. 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

• In addition, the instructions to the Form 1-912 offer extensive instructions and 

explanations of the criteria and USCIS' decision making process for fee waivers. 

Question: What safeguards will be put in place to ensure that this process is done fairly 

and impartially? 

Response: USC IS has established standard operating procedures and policy guidance 

governing fee waivers to ensure that staff adjudicating fee waivers do so in a fair and 

objective manner. In addition, USC IS has quality assurance measures in place to ensure 

accurate and impartial resolution of fee waiver requests. 
691 

Question#: 52 

Topic: 1 fees and penalties 

I 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The I lonorahlc Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: Fees and Penalties associated with the Act may be paid through installment 

payments. The process for such payments is determined by the Secretary. (p. I 08) 

What process do you plan on creating for collecting fees and penalties? 

Response: In the event that installment payments are included in the final legislation, the 

Department will develop a plan to modifY U.S. Citizenship and Immigration Services' 

case processing and accounting systems to track the penalty fee installments. 

Question: Do people applying for other immigrant visas enjoy the benefit of an 

installment plan? 

Response: USC IS does not currently allow fees to be paid via installments. 
692 

Question#: 53 

Topic: judicial revie\v 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: The Act provides aliens the opportunity to challenge revocation ofthe alien's 

application through administrative appellate review, if that fails, before a U.S. district 

court, and if that fails, through the U.S. court of appeals, all while maintaining lawful 

presence. Then, if deportation proceedings begin, the alien can remain in lawful presence 

through a second string of proceedings. This process allows for multiple layers of 

judicial review. (p. 124) 

Why should an illegal alien be pennitted to pursue multiple attempts at judicial review 

for essentially the same determinations to be made, all the while enjoying lawful 

presence? 

Do those who apply for other visas at consular offices have access to judicial review? 

Response: Judicial review is available in certain types of cases adjudicated by USC IS or 

the Executive Office for Immigration Review. DHS supports the Senate bill and we look 

forward to seeing any proposals from the House of Representatives and working with 

Congress on these issues. 
693 

Question#: 54 

Topic: LPR status from RPI status 

Hearing: The Border Security, Economic Opportunity, and Immigration Modernization Act, 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: In order to adjust to LPR status from RPI status, an applicant must 

demonstrate that he or she is at 125 percent of the poverty level. (p. 97) 

As the family of an applicant may follow on as derivatives (rather than each family 

member applying individually), will the poverty level threshold be based on the 

individual or the household as a whole? 

Response: Under current fee waiver guidance, household income is evaluated at the time 

of filing. The Department would evaluate the need to exercise the Secretary's discretion 

under this provision and would promulgate a specific policy to implement it, if required. 
694 

Question#: 55 

Topic: RP!s adjustment to LPR status 

Hearing: The Border Security. Economic Opportunity. and Immigration Modernization Act. 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: RPis applying for adjustment to LPR status must show that they have been 

regularly employed or enrolled in school during their period of status as an RPI. Under 

the age exception, those younger than 21 on the date ofRPI renewal are exempt from this 

requirement. Under this exception, a 24-year-old applying for adjustment is exempt from 

the requirement to work or be enrolled in school. 

Do you believe that 24-year-olds should be exempt from the requirement to be employed 

or in school? 

Response: DHS supports the Senate bill and we look forward to seeing any proposals 

from the House of Representatives and working with Congress on these issues. 
695 

Question#: 56 

Topic: E-YcrilY language 

Hearing: The Border Security. Economic Opportunity. and Immigration Modemiz.ation Acl. 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

l 

Question: TheE-verify language in this bill exempts from the definition of employers 

any employment that is ·•casual, sporadic. irregular, or intermittent" (p. 402) 

What employers would this exclude from the requirement to use E-verify? I would 

imagine this is meant to exclude those who hire babysitters? What about day laborers? 

Construction workers? 

Response: Current DHS regulations exclude from the regulatory definition of 

employment "casual employment by individuals who provide domestic service in a 

private home that is sporadic, irregular or intermittent" 8 CFR 274a.l(h). Under case 

law. this exception has been determined to apply to work limited to the upkeep and 

maintenance of a residence and its curtilage. The exception has applied to housekeepers, 

babysitters, handymen, and gardeners. The exception has not applied to construction 

workers and day laborers (other than day laborers whose day labor falls within the limited 

domestic service definition). 

The bill's "casual, sporadic, irregular, or intermittent" exception to the definition of 

employer does not include any limitation on the type of employment that the exception 

applies to. If this provision is contained in the enacted legislation. DHS will issue 

regulations implementing the legislation and provide any necessary definitions and other 

criteria. 
696 

Question#: 57 

Topic: photo tool forE-verify 

Hearing: The Border Security. Economic Opportunity, and Immigration Modernization Act, 

S.744 

Primary: The Honorable Mike Lee 

Committee: JUDICIARY (SENATE) 

Question: This bill directs you to develop a photo "tool" forE-verify, connected to a 

database of photos kept at USCIS. This tool will enable employers to match the photo an 

employee's documents with a photo maintained on the database. (p 414) 

What measures will you take to ensure that such a tool does not evolve into a national 

photograph database used for non-E-Verify purposes? 

Response: TheE-Verify program currently uses a photo tool to allow employers to 

compare the photograph on the document presented for verification by the employee with 

a photograph accessed from various databases byE-Verify. Currently, the tool is enabled 

for U.S. passports and passport cards, and certain documents issued by USC IS to work 

authorized aliens. Note that E-Verify does not maintain a database of photos, but can 

pull photos from various databases, such as USCJS databases that contain information 

and photos for Employment Authorization Documents and Permanent Resident Cards or 

the U.S. Customs and Border Protection TECS system, which contains a copy of the U.S. 

Department of State Passport data and photos. DHS does not maintain a database of 

driver's license photos and at this time E-Verify does not connect to any state's database 

of such photos. In implementing this photo matching functionality, theE-Verify program 

applied and continues to apply Privacy Act and other legally required protections and 

security protocols, including observing limitations in the current E-Verify statute (found 

at 8 USC 1324a note Sec. 404(h)) against using information from E-Verify databases for 

other purposes or creating national identification cards. DHS will continue to observe all 

legal protections and requirements as it develops its existing photo matching technologies 

in any new system. 
697 

MISCELLANEOUS SUBMISSION FOR THE RECORD 

WRITTEN TESTIMONY SUBMITTED BY 

MEE MOUA. PRESIDENT AND EXECUTIVE DIRECTOR 

ASIAN AMERICAN JUSTICE CENTER 

SENATE COMMITTEE ON THE JUDIICARY 

HEARING ON 

COMPREHENSIVE IMMIGRATION REFORM LEGISLATION 

April 23, 2013 
698 

Chairman Leahy, Senator Grassley and Member of the Senate Judiciary Committee: 

On behalf of the Asian American Justice Center (AAJC) and the other affiliate members of the 

Asian American Center for Advancing Justice (Advancing Justice), a non-profit, non-partisan 

affiliation representing the Asian American and Pacific Islander community on civil and human 

rights issues, we are pleased to submit this '-'Titten testimony in relation to the Senate Committee 

on the Judiciary Hearing: "Comprehensive Immigration Refonn Legislation:' We thank the 

Committee for holding this important hearing and we urge you to focus today's hearing on 

creating an immigration system that is fair, equitable, and embodies American values, including 

America's immigration tradition of family reunification. 

Family-Based Immigration System 

The family immigration system is very important to the Asian American community. As a result 

of past exclusionary immigration laws, approximately 60% of Asian Americans are foreign born, 

the highest proportion of any racial group nationwide. While Asian Americans are only 6% of the 

U.S. population, they sponsor more than one-third of all family-based immigrants. Asian 

Americans are also disproportionately harmed by the family backlogs. Of the almost 4.3 million 

family members of U.S. citizens and legal permanent residents waiting in the family backlogs, 

nearly two million are Asian American and Pacific Islander and many are Latino and African. 

Protecting and strengthening the current family-based immigration system is economically sound 

policy for the U.S. Family-based immigration has significant economic benefits, especially for 

long-tem1 economic growth. Family-based immigrants foster innovation and development of 

new businesses, particularly small and medium-sized businesses that would not otherwise exist, 

creating jobs for immigrant, as well as native-born workers. Furthermore, improving our 

familybased immigration system will make the U.S. even more attractive to high-skilled 

immigrants, who may want the flexibility to bring loved ones to the U.S. once they are 

established here. Workers who have the support and encouragement of their family members are 

more likely to be productive and successful as they strive to integrate into our communities. 

For these reasons, Advancing Justice commends the proposed changes in the Border Security, 

Economic Opportunity. and Immigration Modernization Act of 2013 (S. 7 44) for the family 

immigration system to reunify families and strengthen families. They include provisions to (I) 

redefine "immediate relatives'' to include spouses and minor children oflegal permanent 

residents, allowing an expedited process not subject to numerical caps; (2) eliminate the family 

backlog over a period often years; (3) permit family members awaiting green cards to work and 

live in the U.S.; and (4) allow other family members to visit the U.S. for up to 60 days per year. 

However, Advancing Justice is extremely concerned about the proposed changes to the family 

immigration system, which are a dramatic departure of America's long-standing immigration 

tradition and value offamily unity. In particular, we believe that the following changes will 

prove harmful to immigrant communities and America as a whole: (1) elimination ofthe "F4" 
699 

visa category so that U.S. citizens can no 

longer sponsor their brothers and sisters; (2) placement of an age cap on the "F3" visa category 

so that U.S. citizens can only sponsor their adult married children, who are thirty years or 

younger; and (3) exclusion ofLGBT bi-national couples and families from sponsoring their 

loved ones for family reunification. 

Eliminating family immigration categories or limiting the scope of families will only create greater 

strain on families, the most basic unit of American society. Americans should not have to choose 

between living and working in the U.S. with no family support and living in a country that offers 

little to no opportunities for families. Brothers and sisters, along with children of all ages are an 

inextricable part of any family. Denying this imposes upon many ethnic groups an unacceptably 

narrow concept of family, and downplays the contributions made by these family members. Any 

policy that would permanently keep parents from children of any age and brothers and sisters from 

each other goes against our identity as a nation, which has always recognized the importance of 

family unity. 

Excluding LGBT couples and families from sponsoring their loved ones for family reunification 

by not recognizing permanent partners and their families in the definition of fan1ily perpetuates 

discrimination and prevent these families from reuniting with their loved ones. Reform must be 

inclusive and should not discriminate based on race, gender, or sexual orientation. All families 

should be given the opportunity to work and live together to achieve the American dream. 

We intend to work with the Senate Judiciary Committee to propose changes to the new 

framework inS. 744 to ensure that this system sufficiently addresses the needs of all American 

immigrant families, specifically one that is fully inclusive of adult siblings and children of all 

ages. It is important that proposals offered by the Senate and the House provide thoughtful and 

effective solutions that will keep families together, not divide them. We look forward to working 

with all Members of Congress on ensuring that the comprehensive immigration reform bill is 

strengthened and inclusive of all families. 

Path to Citizenship 

[, Roadblocks Should be Eliminated so that There is an Affordable and Accessible 

Path to Citizenship for All Aspiring Americans. 

While Advancing Justice is encouraged by the inclusion of a path to citizenship inS. 744, the 

proposed 13-year path before an aspiring American can become a citizen contains an arduous set 

of requirements that would exclude significant numbers of the II million undocumented and 

render it extremely difficult for any aspiring American to eventually naturalize. Approximately 

1.3 million of undocumented immigrants in the United States are Asian American. 

The triggers upon which adjustment from Registered Provisional Immigrant (RPI) status to legal 

permanent resident (LPR) status are contingent are both unnecessary and unwarranted. For 

example, the requirement that the Comprehensive Southern Border Security Strategy and 

Southern Border Fencing Strategy be substantially operational and completed is unjustified given 
700 

that the border is more secure than ever 

before and will cost $4.5 billion. The problems with a mandatory E-Verify program, as 

discussed in the next section of this submission, also call for elimination of E-Verify as a trigger 

for the path to citizenship. 

The proposed path to citizenship should be amended to ensure that all II million aspiring 

Americans can more fairly and realistically attain and maintain Registered Provisional Immigrant 

(RPI) status, adjust to LPR status, and become citizens of the United States over a shorter and 

more reasonable time period. 

A. The Path to Citizenship Should be Fair and Attainable for Aspiring Americans by 

Eliminating the Continuous Employment Requirement. 

The requirement that - in order to renew RPI status and to adjust from RPI to LPR status - an 

individual must demonstrate regular employment throughout the RPI period excepting brief 

periods of not more than 60 days, would prove extremely difficult given the shifting service 

structure and fluctuations of the U.S. economy and the seasonal, irregular nature of some types 

of employment. In order for the path to citizenship to be fair, accessible, and realistically 

attainable for the I I million aspiring Americans, the continuous employment requirement in 

Section2101 and 2102 ofS. 744 should be eliminated. Otherwise, potentially significant 

numbers of individuals will fall off the path to citizenship. 

Many aspiring Americans work in contingent jobs such as day labor, construction, domestic 

work, and other service sectors where the structure of employment consists largely of brief 

periods of employment with several different employers. It is not uncommon to not have work 

for periods of time longer than 60 days. Imposing such a requirement would ignore the realities 

of the modem •·workplace'' and the struggles of immigrants who have no choice but to seek work 

that is often seasonal, irregular, and subject to the fluctuations of the U.S. economy. 

This requirement would exclude hard-working aspiring Americans who try desperately to find 

employment and who perform services that are essential to our economy and way of life, but 

through no fault of their own, are unable to obtain work for a period of 60 or more days during a 

ten year time period. The altemative that an individual demonstrate average income above I 00% 

or 125% of federal poverty levels similarly would exclude many individuals who work hard but 

eam low wages and would render them ineligible for RPI renewal or adjustment to LPR status. 

Seventy percent of day laborers, for example, search for work five or more days a week. 1 

This continuous employment requirement should be eliminated from S. 744. 

B. The Path to Citizenship Should be Fair and Attainable for Aspiring Americans by 

Eliminating the English Language Requirement to Adjust from RPI to LPR Status. 

'Abel Valenzuela Jr. et al.. On the Comer: Day Labor in the United States at ii (January 2006). 
701 

The English language skills requirement to 

adjust from RPI to LPR status, contained in Section 2102 of the bill, is a departure from existing 

law and would present a roadblock for many aspiring Americans that should be removed. 

Although there is a basic English language requirement for naturalization, current law does not 

contain such a requirement to obtain green cards. Thus, the English language requirement for 

LPR status contained in the bill would impose a higher threshold for those who have RPI status. 

This is unwarranted, particularly considering that individuals with RPI status would still need to 

meet the existing English language requirements in order to naturalize under current law. 

The English language requirement also would impose a difficult hurdle, preventing many 

aspiring Americans from achieving their drean1 of citizenship. Many Asian Americans live in 

linguistically isolated household in which everyone over the age of 14 is limited English 

proficient (LEP). Over 23% of Asian American households in California are linguistically 

isolated, a rate similar to Latinos (24% )_2 

Many poor and low-income immigrants also already have difficulty finding free or low-cost 

English classes, even in multicultural areas such as Los Angeles. It is likely that such programs 

are even Jess available in other parts of the country. A national report by the NALEO 

Educational Fund found that a majority ofESL classes have a waiting list, and that growing ESL 

demands and funding losses have reduced the availability and caliber of adult ESL services.3 

There have been too many cuts in ESL programs and immigrant integration grants, reducing the 

amount of free and low-cost English classes available to the working poor. WhileS. 744 

contemplates some additional funding for such programs, such funding would need to be at a 

significant enough level to ensure that all aspiring Americans would have access to English 

language classes. Otherwise, an already fragile infrastructure would be at risk of being pushed 

past capacity. 

S. 744 currently contains a discretionary exemption for individuals with RPI status who are 70 

years of age or older. This does not take into adequate account, however, the hardships 

associated with learning a new language at an older age, nor does it take into account the scarcity 

of free or low-cost English classes. 

The English language requirement to adjust from RPI to LPR status should be eliminated. 

Alternatively, at minimum, there should be an automatic exemption for individuals with RPI 

status who are 55 years of age or older. For those younger than 55, factors such as those 

considered in naturalization exams under current law including age, education, length of 

residence in the United States, opportunities and efforts made to prepare- should be taken into 

account in due consideration of whether to grant an English language waiver. 4 

C. The Path to Citizenship Should be Fair and Attainable for Aspiring Americans by 

Allowing Discretionary Waivers to Consider Applicants' Backgrounds, Including 

Rehabilitation and Family Ties. 
702 

A Community of Contrasts: Asian Americans, Native Hawaiians and Pacific Islanders in Ca/jfornia, ASIAN 

AMERICAN CENTER FOR ADVANCING JUSTICE at 17 (2013). 

The ESL Logiam: Waiting TimesjiJr Adult ESL Classes and the Impact on English Learners, NALEO 

EDUCATIONAL FUND at 1-2 (2006), available at http://www.naleo.org/downloads/ESLReportLoRes.pdf. 

See 8 CFR § 312.2(c)(2). 

There are several grounds for ineligibility for RPI status set forth in Section 2101 ofS. 744, 

including being convicted of a single felony, an aggravated felony, and three or more 

misdemeanor offenses. While S. 744 provides for limited waivers to further family unity or the 

public interest, there should be a mandatory requirement that each individual RPI applicant's 

background- including family ties, rehabilitation, and evidence that the individual has turned his 

life around- be considered in adjudicating his application for RPl status. 

D. The December 3 L 2011, Cut-OffDate Arbitrarily Would Exclude Significant Numbers 

of Aspiring Americans and Should be Extended to the Date of Enactment of the 

Legislation. 

The requirement in Section 2101 of S. 744 that an individual have been physically present in the 

United States on or before December 31, 2011, in order to be eligible for RPI status would 

arbitrarily exclude significant numbers of aspiring Americans who already live, work, go to 

school, and contribute to the United States. By preventing these individuals from being able to 

come out of the shadows and legalize, this arbitrary cut-off date would be short-sighted and 

counterproductive, limiting these aspiring Americans from being able to contribute their full 

array of talents and fully integrating into U.S. society. 

Indeed, as the Senate bipartisan group who authored this legislation stated in their immigration 

reform principles released in January, they intended to "ensure that this is a successful pem1anent 

reform to our immigration system that will not need to be revisited." To arbitrarily exclude 

potentially thousands of aspiring Americans who already reside in the United States, from 

legalization undermines this long-term goal enunciated by the authors of S. 744 to fundamentally 

repair the broken immigration system for the future of the country. Thousands of aspiring 

Americans would remain in the shadows and subject to further exploitation and constant fear of 

deportation. 

To achieve this bipartisan goal of "successful permanent reform to our immigration system that 

will not need to be revisited," all of the aspiring Americans residing in the U.S. as of the date of 

enactment of S. 744 should be deemed to meet the physical presence requirement for RPI 

eligibility. 

E. The One-Year Application Time Period Does Not Provide Sufficient Time for Aspiring 

Americans to Apply for RPI Status and Should be Extended to a Minimum Five-Year 

Period from the Date of Enactment. 
703 

The one-year period for applying 

tor RPI status, with a possible I 8-month extension, contained in Section 2101 of S. 744 does 

not provide sufficient time for the millions of aspiring Americans who would seek to legalize 

their status. There should be a minimum five-year period from the time of enactment of the 

legislation for individuals to apply for RPI status. 

Establishing the necessary national infrastructure to infom1, educate, and assist millions of 

potential applicants with the RPI application process will take a considerable amount of time 

-far longer than the one year contemplated in the legislation. As we learned from 

implementation of the Deferred Action for Childhood Arrivals (DACA) policy, where 

approximately I million DREAMers were immediately eligible for DACA5 compared to the 

many more millions of aspiring Americans who would be eligible for RPI status, it is not a 

simple task for applicants who have been living in the shadows to apply. 

It will require extensive and ongoing community education, in the languages spoken by those 

eligible for RPI status, for the millions of potential applicants to be informed about and 

understand the application process. It will require further time for the millions of applicants 

to compile the necessary documents and to seek assistance in filling out their applications, 

which will be crucial to ensure the quality and sufficiency of their applications. 

Moreover, there is limited capacity an1ong nonprofit community organizations and legal 

service providers to assist potential RPI applicants. Even with federal funding assistance, as 

proposed in the bill, it will take many months for those resources to flow to these nonprofit 

organizations, which also will need time to develop their capacity to provide assistance. 

There already is a justice gap in this country, with estimates that approximately 80% of 

lowincome individuals have no access to a lawyer when they need one.6 

If insufficient time is provided for potential applicants to apply, this will encourage 

unscrupulous operators to use the one-year application deadline to lure applicants into paying 

for questionable services. Potential applicants likely would feel pressured to meet the 

oneyear deadline and - given the limited time for nonprofit community organizations to build 

the necessary infrastructure to provide assistance to millions of applicants seek assistance 

from other channels at risk of being defrauded. 

There should be a five-year application period from the date of enactment of S. 744. 

Interior Enforcement 

Advancing Justice is encouraged that the S. 744 takes steps to address serious due process 

concerns in the removal process by including the appointment of counsel at government expense 

for those individuals determined to be incompetent to represent themselves due to a serious 

mental disability as well as other particularly vulnerable individuals. However, access to counsel 

is only a first step in ensuring due process for with mental disabilities who cannot advocate on 

their own behalf and often do not have the resources to hire counsel. In addition to the 

appointment of counsel, Advancing Justice urges the Senate to legislate alternatives to detention 
704 

for those with mental disabilities, the 

availability of mental competency evaluations by qualified mental health professionals in cases 

where competency is in question, comprehensive screening for mental disabilities and access to 

stabilizing medication in all ICE and ICE-contracted facilities, training for immigration judges 

and Immigration and Customs Enforcement agents and attorneys on best practices with regard to 

individuals with mental disabilities, and judicial 

See Who and Where the DREAMers Are: A Demographic Profile of Immigrant Who Might Benefitfi-om the 

Obama Administration's Deferred Action Initiative, IMMIGRATION POUCY CENTER -AMERICAN IMMIGRATION 

COUNCIL at! (July 2012), 

http://www. immigrationpolicy.org/sites/default/files/docs/who _and_ where _the_ dreamers_ are_O.pdf. 

Addressing the Justice Gap, New York Times, (Aug. 23, 2011). 

discretion to terminate removal proceedings where individuals are detennined to be incompetent 

and safeguards are insufficient to ensure due process. 

However, in the past decade, we have deported more people than in the preceding century.2 

Expenditures on immigration enforcement have also swelled, eclipsing the budgets of all other 

federal law enforcement agencies combined. 3 The unprecedented rise in deportations has come 

with a parallel rise in the size of our immigration detention system. Disappointingly, the Senate 

bill fails to address these systemic problems in our immigration system. 

Further, the bill increases enforcement provisions and spending. For example, the bill creates a 

new ground of inadmissibility for everyone who had been identified as having a gang affiliation 

in a law enforcement database after the age of eighteen.4 Gang databases have been found to 

have extremely high misidentification rates. 5 Asian, Latino, and African-American communities 

are disproportionately misidentified in gang databases. 

The bill's dramatic expansion ofE-Verify must also be rejected. Mandating E-Verify for all 

employers will have a destructive impact on workers, employers and our economy. A mandatory 

system will drive a whole layer of workers who are not eligible for work authorization under the 

bill further underground where workplace abuses are rampant. This results in a race to the 

bottom that hurts all workers, disadvantages law abiding employers, and by at least one 

government estimate, promises to decrease federal tax revenue by more than $17.3 billion over 

ten years. The billions employers will need to spend to implement E-Verify also unduly and 

disproportionately falls on small businesses. 

The protections outlined in the bill do not erase E-Verify's harms. The bill's due process 

provisions do not eliminate the productivity, time, and business revenues lost ±rom having to 

2 A Decade of R1sing !rrmugratmn Enforcement, l:>.-1YIJGRAT10:-.l POUCY CE~TER~ AMERICA~ 1~1\f!GRAT!O!\ COL':\CIL at n.2 (Jan. 2013). 

http://wwv...immigrationpolicy.org/sites/default/files/docs/enforcemcntstat~factsheet.pdf. 

'Immigration Enforcement m the L"mted ,\'rates. M!GRAT!O:-. Poucy J;-..·srJTt"TE at 12 (Jan. 2013). 

http://wwv..migrationpolicy.org/pubs/pillarsreportinbriefpdf. 

• Border Security. Economic Opportunity. and Immigration Modernization Act§ 3701(a) 

'Julie Barrows. C. Ronald Huff. ~-Qg.,S_!!!J.d PuhJj_c Po!icv: Constructing and Dcconstructino Gang Q~.:t@.ases, 8 Crimmology & Public Po/iq 675 

(2009) 
705 

appeal incorrect "non- confinnations." 

Appeals will also be difficult to navigate for the nearly one-third of AAPls who face language 

barriers and are unfamiliar with the government bureaucracy. Furthern1ore, while important, the 

proposed protections for workers who file workplace abuse claims provide insufficient assurance 

for the vast majority of unauthorized workers who will be unwilling to report or fight abuses 

where the threat of potential or eventual deportation still exists. 

Integration and Access to Affordable Health Care and Nutrition 

As mentioned above, family-based immigration makes up a large part of the Asian American 

community. Its value in strengthening the economic and social unit of the family is underscored 

in the high rates of business ownership in the community and in the creation ofjobs for all 

Americans. Alongside recognizing the positive contributions of immigrants to our country, 

Advancing Justice also recognizes that individuals and families may not always be able to plan 

for periods of economic insecurity. Although. on average. 12.6% of the Asian American and 

Pacific Islander population live below poverty. the rate is much higher for some Asian 

subpopulations. such as 37.8% for the Hmong, 29.3 %for Cambodians, I 8.5% for Laotians, and 

16.6% for the Vietnamese. 6 

The prolonged and continued exclusion of aspiring Americans from federal health and nutrition 

support programs is contrary to the longstanding American values of fairness and equal 

opportunity for integration. In order to ensure optimal health for all, we should not exclude those 

contributing to our economic success merely because they require temporary health or nutritional 

benefits. Excluding individuals with registered provisional status from critical federal 

meanstested public benefits. such as Medicaid, the Children • s Health Insurance Program (CHIP). 

and the Supplemental Nutrition Assistance Program (SNAP), is a disinvestment in our families, 

children. and a healthy workforce. Similarly, the financial security and health of our 

communities are threatened by the exclusion of working-class and middle-class immigrants in 

the Patient Protection and Affordable Care Act (ACA) from tax credits and cost-sharing 

subsidies to assist in the purchase of affordable health insurance through the newly created state 

Exchanges. 

As written inS. 744. many categories of immigrants must wait anywhere from live to 10 or more 

years before becoming lawfi.il permanent residents. and even longer to become citizens. These 

are individuals who are coming out of the shadows to obtain registered provisional status, youth 

and young adults granted Deferred Action for Childhood Arrivals or DREAMers, agricultural 

Blue Card holders, and family V Visa holders. Moreover, under existing law, most lawfully 

residing immigrants, including lawful pern1anent residents (persons with green cards). must wait 

five years before becoming eligible for federal means-tested public benefits, including Medicaid, 

CHIP, and SNAP. In times of economic need and poor health, these waiting periods increase 

6 Critical ls,'I'Ues Facing Asian Americans and Pac{flc Islanders: Poverty, WHITE HOUSE 1NJTlATIVF ON ASIAN 

AMERJCANS AND PACIFIC ISLA1\DERS. hllp: \\\\\\.\\ hitchousc.QOY 3dministmtion cop a a pi 'U<!L<L.~r.iti!2£t.l:J2~.~~ (last 

accessed April22. 2013). 
706 

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