FAIR Legislative Update May 28, 2013
Senate Judiciary Committee Rubberstamps Gang of Eight Bill, Next Stop Senate Floor
Last Tuesday, the Senate Judiciary Committee passed S. 744, the Gang of Eight's "comprehensive" immigration reform bill 13-5, advancing the legislation to the Senate floor. GOP Senator Orrin Hatch (R-UT) joined Gang of Eight Republicans Lindsey Graham (R-SC) and Jeff Flake (R-AZ) in voting with all 10 Committee Democrats in favor of the legislation. Those voting against the bill included Judiciary Committee Ranking Member Chuck Grassley (R-IA), Senate Minority Whip John Cornyn (R-TX), Jeff Sessions (R-AL), Mike Lee (R-UT), and Ted Cruz (R-TX).
The Committee markup illustrated the Gang of Eight's commitment to keep the core of the bill intact. Several key amendments to improve the bill were struck down, and only changes meeting the Gang's amnesty litmus test passed. To view a list of the amendments that were denied, click here. To view a list of amendments that passed, click here.
It is still uncertain whether the bill has enough votes to pass the Senate. (The Hill, May 24, 2013) Just days after the Judiciary Committee passed the bill, Gang of Eight member Bob Menendez (D-NJ) told Univision host Jorge Ramos that he didn't think the Gang had enough votes in the Senate to pass the bill. "We don't currently have 60 votes identified in the Senate," said Sen. Menendez. "We need to add more votes on the floor." (CBS News, May 25, 2013)
Senator Marco Rubio expressed similar doubts about the bill's ability to pass the House of Representatives weeks earlier. "The bill that's in place right now probably can't pass the House; it will have to be adjusted because people are very suspicious about the willingness of the government to enforce the laws now — and in the future — given our experiences with immigration in the past." (See Rubio interview, Apr. 30, 2013; see also FAIR Legislative Update, May 6, 2013)
The bill now goes to the Senate floor for debate, where Senate Majority Leader Harry Reid has vowed to bring the legislation up as early as possible. (Bloomberg News, May 22, 2013) Senators return from a week-long Memorial Day recess June 3; news outlets report Gang of Eight members expect floor debate to begin the week of June 10. (The Hill, May 24, 2013)
One of the critical moments in the debate over Gang of Eight amnesty legislation in the Judiciary Committee last week was a deal struck by Sen. Chuck Schumer (D-NY) and Sen. Orrin Hatch (R-UT) to "reform" the H-1B visa program in order to gain Hatch's support for the bill. Senator Hatch, who has authored several bills to expand the H-1B guest worker program, made it clear that these changes were necessary to gain his vote for the bill.
The Hatch-Schumer deal eliminates the few protections for American workers written into the bill, making it easier for employers to discriminate against skilled American workers. (Hatch-Schumer 2nd Degree) Specifically, the Hatch-Schumer Amendment:
- Changes the formula that determines how many H-1B workers are admitted annually in order to admit H-1B workers at a faster pace. Originally, S.744 increased the cap from 65,000 to a range of 110,000 - 180,000, with the specific number calculated through a formula based on the number of petitions filed during the previous year and certain unemployment rates. The Hatch amendment changed the range of H-1B workers that may be admitted each year to a starting point of 115,000 - 180,000 plus an additional number determined by how quickly the cap is reached during the year and an increase contingent on certain unemployment data. If the base is 180,000 and is filled within 45 days, another 20,000 H-1B visas are issued, making the true maximum cap 200,000 H-1B visas per year.
- Allows DHS to grant work authorization to spouses of H-1B workers regardless of whether the worker's home country offers reciprocal treatment. Originally, S.744 allowed DHS to grant work authorization to spouses only if the sending country permitted reciprocal treatment.
- Eliminates the requirement placed on all H-1B employers in S.744 that they attest that they have not and will not displace U.S. workers beginning 90 days before to 90 days after the visa petition is filed. Instead, the Hatch Amendment provides that only "H-1B skilled worker dependent employers" and "H-1B dependent employers" must attest that they have not displaced U.S. workers within 90 days before and after, or 180 days before and after, respectively.
- Eliminates the requirement placed on all H-1B employers in S.744 that they attest they have offered the job to any U.S. workers who applies and is equally or better qualified. Instead, the Hatch Amendment provides that only H-1B dependent employers must satisfy this requirement.
- Allows non H-1B dependent employers to outsource their H-1B workers for a $500 fee per worker. It also allows certain H-1B dependent employers that are universities, nonprofit research organizations, or health care businesses to outsource their H-1B workers for a $500 fee per worker.
At the same time, the Senate Judiciary Committee rejected four amendments to the Hatch-Schumer deal offered by Ranking Member Chuck Grassley (R-IA). Senator Grassley's amendments would have restored protections eliminated by the Hatch-Schumer amendment for American workers in several ways. First, the committee rejected an amendment that would require all employers to make a good faith effort to recruit U.S. workers and offer jobs to equally or better qualified U.S. workers. (Grassley 2nd Degree #1) Second, the committee voted down a provision to prevent employers from displacing U.S. workers, particularly women, when hiring H-1B workers. (Grassley 2nd Degree #2) Next, the committee voted against an amendment that would have eliminated the granting of unlimited green cards to foreign graduates with advanced STEM degrees if fewer Americans obtain advanced STEM degrees than when the bill is enacted. (Grassley 2nd Degree #3) Finally, the committee denied an amendment that would require all employers to pay Level 2 (mean) wages for H-1B workers. (Grassley 2nd Degree #4)
While the Hatch-Schumer deal may have won over the Utah Republican's vote, it has drawn the ire of labor unions, casting doubt on whether they will continue supporting the amnesty bill. "[L]et's be clear: Senator Orrin Hatch's H-1B amendments are unambiguous attacks on American workers," charged AFL-CIO President Richard Trumka. (AFL-CIO Press Release, May 21, 2013) "Hatch's amendments change the bill so that high tech companies could functionally bring in H-1B visa holders without first making the jobs available to American workers. Hatch's amendments would mean that American corporations could fire American workers in order to bring in H-1B visa holders at lower wages." (Id.) "If the hard work of America's tech workers is ever to pay off, we need to craft policy that benefits the people who actually write code, rather than just rewarding industry honchos who write checks to politicians," Trumka continued. (Id.) We expect better, we deserve better, and if necessary, on the floor of the U.S. Senate, we will get better," he concluded. (Id.)
The Gang of Eight's "comprehensive" immigration reform bill now exceeds 1,000 pages after the Senate Judiciary Committee's amendment process, according to the Washington Examiner. (Washington Examiner, May 24, 2013) As introduced, the bill (S. 744) was 844 pages but had expanded to 867 pages as the result of what's referred to as a "manager's amendment" introduced by Gang of Eight member Chuck Schumer at the beginning of the Judiciary Committee "markup." Now, after a two week process of voting on amendments the bill has swelled to over 1,000 pages.
Unsurprisingly, the Democratic-controlled committee used their majority status to give more to illegal aliens and reject major amendments to improve border security. In fact, 80 of the 81 amendments introduced by Democrats for a vote were approved. (Senate Judiciary Committee S. 744 amendments) Additionally, the pro-amnesty Republican committee members, Sens. Orrin Hatch (R-UT) and Gang of Eight Sens. Lindsey Graham (R-SC) and Jeff Flake (R-AZ), had all 15 of their amendments accepted. (Id.) On the other hand, every substantive pro-enforcement amendment offered by Committee members were rejected. (Id.)
In a press release issued Thursday afternoon, House Republican leadership vowed to take up its own set of immigration reform bills, casting doubt on whether they will touch the Senate Gang of Eight amnesty bill.
The joint statement, issued by Speaker John Boehner (R-OH), Majority Leader Eric Cantor (R-VA), Majority Whip Kevin McCarthy (R-CA), Republican Conference Chairman Cathy McMorris Rodgers (R-WA), and Judiciary Committee Chairman Bob Goodlatte (R-VA), stated, "While we applaud the progress made by our Senate colleagues, there are numerous ways in which the House will approach the issue differently. The House remains committed to fixing our broken immigration system, but we will not simply take up and accept the bill that is emerging in the Senate if it passes." (See Speaker's Office Press Release, May 23, 2013)
To the contrary, the GOP leaders vowed the House would produce its own legislation, setting the stage for a long and arduous fight during conference committee if each chamber passes legislation. "[T]hrough regular order, the House will work its will and produce its own legislation. Enacting policy as consequential and complex as immigration reform demands that both chambers of Congress engage in a robust debate and amendment process," the release continued. (Id.)
House leadership has already taken steps toward passing piecemeal immigration reform. The House Homeland Security Committee passed a bill earlier this month on border security metrics (H.R. 1417) sponsored by Chairman Michael McCaul (R-TX). In addition, the House Judiciary Committee has held legislative hearings on an agricultural guest worker/amnesty bill authored by Chairman Goodlatte (H.R. 1773) and E-Verify legislation (H.R. 1772) authored by Rep. Lamar Smith (R-TX), both of which are expected to be part of a House immigration package. With the inclusion of Rep. Darrell Issa's SKILLS Visa Act (H.R. 2131) introduced Thursday, all the components of a comprehensive bill in the House are almost present with the exception of a low-skilled guest work program and an amnesty bill for non-agricultural workers.
Simultaneously, a bi-partisan Gang of Eight in the House continues to negotiate its own amnesty bill, but the future of those efforts remains unclear. Just two weeks ago, members of that group announced they would unveil legislation in June, only to have their negotiations temporarily flounder over a dispute as to how to handle health care for amnestied illegal aliens. (Politico, May 22, 2013) As of Thursday, however, Rep. Raul Labrador (R-ID), who has emerged as the Republican leader of the group, announced the deal was back on and that the group would present legislation "as soon as possible." (Bloomberg Government, May 24, 2013)
The Connecticut House of Representatives approved a bill, House Bill 6495, which would allow illegal aliens to obtain driver's licenses. The original bill, introduced on February 26, 2013, made only minor changes to the state motor vehicle laws and did not include the language to provide driver's licenses to illegal aliens. However, during the May 22 House debate which began at 10 p.m., Democrats offered a substitute bill that would make applicants eligible for driver's licenses regardless of their immigration status. The debate on HB 6495 lasted for more than seven hours. The final voteoccurred at 5:48 a.m. on Thursday and HB 6495 passed by a vote of 74-55. Twenty-one representatives were not present and thus did not vote.
HB 6495 requires the issuance of driver's licenses to any applicant that "is not legally present in the United States or does not have a Social Security number" so long as the applicant (1) submits proof of residency in the state, (2) submits certain proofs of identity which include a foreign passport or consular ID card, and (3) files an affidavit with the Commissioner of Motor Vehicles stating that the illegal alien has or will file an application seeking legal status in the United States as soon as he or she is eligible to do so (which incidentally may never occur). (Section 1(b)(1)). The license would not be acceptable for federal identification or voting purposes and must contain the phrase "for driving purposes only." (Sections 1(c), (e), and (f)). A person who has been convicted of a felony in Connecticut is not eligible for the license; however, an amendment offered by Republicans that would have barred illegal aliens convicted of felonies in other states from obtaining a license failed.
Republicans complained that they were excluded from the process by the late night bait and switch that added the illegal alien driver's license provision. Although portions of HB 6495 traveled through the normal committee process, the illegal alien driver's license provision did not. As a result, Republicans offered up an amendment that would establish a task force to study the matter and examine the policies of other states. In so doing, Representative Selim Noujaim (R-Waterbury), an immigrant from Lebanon, said, "This is something we can do … let's do it right." (Hartford Courant, May 23, 2013). The amendment failed. Instead, HB 6495 merely establishes a temporary working group to examine methods for verifying foreign documents submitted by illegal alien applicants. (Section 3(a)). The working group's analysis and recommendations must be completed by February 1, 2014. (Section 3(f)).
More research on the bill would reveal that granting driver's licenses to illegal aliens is bad policy for a number of reasons. A few of those reasons include increased risks to national security, increased illegal immigration to the state and various types of fraud. (FAIR Talking Points). Contrary to what advocates of HB 6495 argue, research has found that granting driver's licenses to illegal aliens does not guarantee that roads in the state will be safer. (Insurance Research Council, Apr. 21, 2011). Additionally, evidence from New Mexico, which provides driver's licenses to illegal aliens, has revealed that doing so will not boost the number of insured drivers in the state. (Fox News Latino, Sept. 9, 2012).
HB 6495 now goes to the Senate and is not expected to come up until next week. (NBC, May 23, 2013). If passed, HB 6495 will be effective on January 1, 2015.