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First Senate Hearing on New Immigration Bill Puts Focus on Impact on Workers, Economy

Monday, April 22, 2013
By Laura D. Francis

Witnesses at the first Senate Judiciary Committee hearing on a recently introduced comprehensive immigration bill (S. 744) April 19 offered conflicting opinions as to whether the overhaul envisioned in the legislation would be a boon to the American economy or unnecessarily harm lower-skilled American workers.

The bill, introduced April 17 by the Senate's bipartisan “gang of eight” (74 DLR A-11, 4/17/13), “represents an economic policy opportunity” for the United States to dictate its future population and labor force participation at a time when the population of native-born Americans is declining, economist Douglas Holtz-Eakin said.

According to Holtz-Eakin, president of the American Action Forum and former Congressional Budget Office director, the bill moves U.S. policy closer to that of other industrialized nations, which use “immigration policy as a tool of economic policy.”

Bill Includes Broad Changes
After much anticipation following a late January release of a bill framework by the Senate's “gang of eight,” (18 DLR A-1, 1/28/13) the proposed Border Security, Economic Opportunity, and Immigration Modernization Act was introduced by Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

The bill would work a complete overhaul of the immigration system, making changes to the employment-based green card system, the H-1B highly skilled guestworker program, and low-skilled agricultural and nonagricultural guestworker programs. It also would make the E-Verify electronic employment eligibility verification system mandatory for all U.S. employers and grant legal status and a path to citizenship for most of the 11 million undocumented immigrants currently in the country.

The Senate Judiciary Committee plans to hold a second hearing on the bill April 22.

Committee Chairman Patrick Leahy (D-Vt.) at the April 19 hearing acknowledged that S. 744 is a compromise bill in which both sides made “very difficult concessions.” But he did express some concerns, such as the inclusion of so-called border security “triggers” before undocumented immigrants would be able to apply for green cards and citizenship.

“I do not want people to move out of the shadows but then be stuck in some underclass” because their status depends on border conditions over which they have no control, he said.

Grassley: Don't Want Repeat of IRCA
Committee ranking member Charles Grassley (R-Iowa) pointed out that the Senate held its first hearing on the Immigration Reform and Control Act--which passed in 1986--exactly 30 years ago. At the time, members said the bill was intended to secure the borders and be a one-time solution to the problems with the immigration system.

“Thirty years have passed and we're saying the same thing” about S. 744, Grassley said. “I will be asking whether this bill avoids the same mistake and truly fixes our immigration system for the generation to come.”

Grassley also expressed concern about the speed with which the bill was progressing, noting that many senators and their staffs had not had time to review and digest all 844 pages of the legislation by the time of the hearing.

Sen. Michael Lee (R-Utah) expressed similar sentiments, calling the committee's hearings “hastily scheduled” in light of the bill's introduction only two days prior.

Furthermore, he said he was “wary of trying to do all of this in one fell swoop” as opposed to piecemeal legislation, which could lead to “unforeseen effects and unintended consequences.”

Concern for Low-Skilled Workers
Peter Kirsanow, a partner with Benesch, Friedlander, Coplan & Arnoff in Cleveland and commissioner of the U.S. Commission on Civil Rights--who appeared in his personal capacity--argued that evidence presented to the commission shows that illegal immigration has driven down the wages and employment rates of low-skilled American workers, particularly African Americans.

In particular, he said, African American men are disproportionately concentrated in the low-skilled labor market, the same area in which undocumented immigrants are disproportionately employed. These two groups “compete against each other,” Kirsanow said.

That problem will not be solved by granting legal status to undocumented immigrants, he argued, stressing that “we have an oversupply of low-skilled labor relative to demand” among the native-born U.S. population. “We should have some type of immigration reform,” but it needs to be done in a way that low-skilled American workers “aren't thrown under the bus,” Kirsanow said.

But Holtz-Eakin said providing legal status to most undocumented immigrants would put those workers on a level playing field with Americans and ensure they are covered under existing labor condition and wage and hour laws, “thus changing that dynamic considerably.”

Furthermore, Holtz-Eakin said, studies show that immigration actually raises American workers' wages and that immigrant workers complement rather than compete with them.

Low-skilled American workers already are competing with low-skilled workers around the world who will work for lower wages, and so whether or not U.S. immigration policy allows them to come to this country does not matter, he said.

“I would hope our aspirations would be greater than protecting low-skilled Americans in perpetuity” and geared more toward improving their skills, Holtz-Eakin added.

Deportation Versus Legalization Debate Rehashed
Schumer, chairman of the Immigration, Refugees and Border Security Subcommittee, questioned Kirsanow as to whether granting legalization or deporting 11 million undocumented immigrants was the better solution. Schumer suggested that granting legalization would raise the wages of both immigrant and American workers.

Kirsanow said he was not in favor of mass deportation, but granting legal status removes the advantage Americans have in getting a job. Furthermore, he said, there will still be employers who exploit their workforces.

In response to Flake's similar line of questioning, however, Kirsanow said the choice is not simply between full legalization and full deportation. “I think there are a whole host of alternatives,” he said, including taking steps to ensure that “rogue employers” do not employ undocumented immigrants or any workers outside the framework of existing law.

The government needs to make sure that all workers are paid what they are supposed to be paid, Kirsanow stressed.

Sen. Jeff Sessions (R-Ala.) agreed, although he also said he had “no confidence” that the Obama administration would “enforce any law that makes any difference.” Enforcement was supposed to be a key feature of IRCA, and that turned out not to be the case, he said.

Sessions: Focus on High-Skilled Immigrants
Sessions also said immigration policy should focus more on workers at the high-skill level, where there is less competition with Americans than in lower-skilled jobs. There are unemployed Americans today who need to find work, he said, asking whether it would be better for an unemployed American to fill an open low-wage job than bringing in foreign labor.

“The question answers itself,” Kirsanow said. We have 90 million people who are unemployed and could work, and yet the Senate is considering expanding the labor supply--“that's madness,” he said.

But Graham agreed with Holtz-Eakin's earlier point that the native-born workforce is declining. “Unless we have a massive baby boom, then the numbers are going in the wrong direction,” he said.

He also agreed with Sessions that foreign workers, under either a high-skilled or low-skilled program, should not displace American workers who are able and willing to perform the job. That is why, Graham said, S. 744 contains provisions requiring would-be employers of foreign workers to advertise the job at a “competitive wage.”

Graham added that there are certain areas of the economy where no matter what an employer offers, it cannot find American workers to perform the jobs. “That is a reality that is uncomfortable to hear but is the God's truth,” he said.

Would Bill Kill H-1B Program?
Also speaking to high-skilled immigration, Sen. Orrin Hatch expressed concern that S. 744 does not include more elements of the proposed I-Squared Act (S. 169). Hatch introduced the I-Squared Act in January along with Rubio and Sens. Amy Klobuchar (D-Minn.) and Chris Coons (D-Del.) to make changes to the H-1B and other highly skilled worker programs and improve science, technology, engineering, and math education in the United States (20 DLR A-13, 1/30/13).

Hatch said under S. 744 he envisioned an ultimate end to the H-1B program--much like the sunset for the H-2A program in the bill--because its overly bureaucratic requirements would make employers reluctant to use it.

The recruitment and other requirements proposed for the H-1B program would make it too “burdensome” for employers, Hatch said, and the overly complex formula for increasing the H-1B cap means the cap would not “respond to real-time needs.”

But Klobuchar had a positive view of S. 744, in particular the provision that would grant work authorization to the spouses of H-1B guestworkers. In addition to it being a “women's issue”--most H-1B visas go to men--it also would be an added benefit to the economy, she said.

Feinstein, Franken See Benefit to Agriculture
Sen. Dianne Feinstein (D-Calif.) during the hearing lauded the bill's agriculture provisions, which she said “will result in a consistent supply of agricultural workers for our farmers.”

“Agriculture in this nation is a huge industry and it is in the main served by undocumented immigrants,” Feinstein said, stressing that many jobs have had to be exported overseas and farmers have had to curtail some of their activities because they cannot find Americans willing to perform the work.

S. 744, she explained, would create a “blue card program” under which undocumented farmworkers who have been doing agricultural work in the United States for a period of time and who pay a fine would be able to get a blue card that then could be used to apply for a green card. The bill also would create two programs to replace the current H-2A agricultural guestworker program--an at-will program allowing for portability among employers and a program whereby foreign workers would be employed by contract, Feinstein said.

Sen. Al Franken (D-Minn.) also praised the agriculture provisions, adding that he was most pleased that the bill would include the dairy industry in the agriculture program.

Dairy farmers currently are excluded from the H-2A program because the program requires that the jobs be seasonal.

“You can't milk cows seasonally,” Franken said, or you would have “very, very uncomfortable cows.”

By Laura D. Francis

Text of witness testimony and a video of the hearing are available at Text of S. 744 is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/CIR-Bill-4.17.13(1).pdf.

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