Spencer Abraham

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I yield up to 5 minutes to the Senator from Kansas at this time.

Mr. ABRAHAM. Mr. President, I compliment the Senator from Massachusetts on this amendment. I think it addresses a large part of the concern that he previously registered with respect to the way the program functions. As I will indicate as we continue this debate this afternoon, it is not the intent of either this Senator or those of us who cosponsor the American Competitiveness Act to put any American worker at a disadvantage. We believe the protections that are already in place in this legislation--both in the existing laws as well as in my bill--will protect American workers. Basically, you cannot bring a foreign worker in for lower pay and replace an American worker with that individual. If you do, you are violating the law. The Senator from Massachusetts earlier raised the concern that no one will complain because the H-1B visa holder, the foreign worker, will be afraid of consequences if they do so. In my judgment, this whistle-blower provision will allay any such concerns. I think it ties nicely into the protections which we have built into S. 1723, the protections that come in the form of very severe penalties for anyone who willfully violates the law with respect to bringing in an H-1B employee. So for that reason I am comfortable with and supportive of this amendment. We worked closely with Senator Kennedy's staff on the crafting of the amendment, and I think it has been done in a way that effectively supplements what is already in place. But let me, as long as we are on this, just briefly talk about this whole system. In his earlier statement with respect to his amendment, the Senator from Massachusetts expressed concern that no one would bring a complaint, that the complaint-driven system that currently exists is one which masquerades many violations. I do not believe it does. I think that complaints are very likely to occur under the current system simply because competitors could bring the complaints. The salaries with which foreign workers are paid must be posted, not only posted at the job site, but at secondary sites and at the Department of Labor. If somebody believes that someone is gaining an unfair advantage by bringing in cheaper labor, they can complain as well. It does not necessarily have to be the foreign worker who brings the complaint; it can be a coworker who is mad because they see the foreign worker is coming in and driving his friends out of a job, or it can be a competitor. It is possible, I suppose, although we do not have any documental evidence to this, that someone might be intimidated about bringing such complaints. For that reason, I think the whistle-blower provision is an effective way to address this one area that might be a loose end. I think it tightens up the process in such a way that we can have the confidence in a complaint-driven system necessary to maintain that system as it is working. And it is working effectively. As I said earlier, as I will be saying in further debate on these amendments, in the entire history of this program there have only been eight willful violations in 8 years--one per year. And only one of those involved a situation where an employee was laid off. We have heard descriptions of several of those, I think, already in the comments of the Senator from Massachusetts. Indeed, because there are so few, we have already heard about several of those instances on more than one occasion here today. They are wrong. They were punished. I think they should have been punished even more severely. I do not think they should bring a foreign worker in the United States, pay them a lower salary than you are paying an existing worker, and lay somebody off. I think if you do that, you ought to suffer stiff consequences, and our legislation administers those stiff consequences. To the extent someone might have failed to raise a concern or a complaint because of fear of reprisal, I think Senator Kennedy's amendment, which I am prepared to support at this time, closes that loophole as well and I think puts in place a system that can and should work effectively. So, for that reason, I support the amendment. And I think we can move forward to adopt it here presently.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, thank you. I would like to put a couple of points into perspective, first of all, which relate to the statements of the Senator from California with regard to the numbers. I indicated in my opening statement we have a very significant problem just understanding exactly what the numbers are. For instance, the issue with respect to physical therapists taking 26 percent of these positions--we do not know that is the percentage of applications that have come to INS. And our legislation attempts to do two things to address it. First, it attempts to force INS to tell us not what the application numbers are but who actually gets the H-1B positions. We need to know that to shape this program more effectively. Second, with respect to health care workers and physical therapists, and so on, our legislation actually attempts to put a cap on that category of 10,000, so that, in fact, 26 or 30 percent of whatever of the H-1B visas cannot go into that category. The legislation that the Senator from California alludes to, that would not put that cap in place, means that literally all of the positions could go to these categories that I think most of us would agree do not need to be filled with H-1B workers. In fact, our legislation, the bill before us, attempts to move us in a direction to attempt to address that problem. Next, with respect to the actual numbers themselves, the statistics of the Senator from California are not accurate. Currently, if we do nothing legislatively, 325,000 people will come in over the next 5 years under the H-1B program. Our legislation increases that amount by 30,000 per year to 475,000. And the amount that was referenced with respect to health care workers comes out of that 95,000. It is not in addition to the 95,000; it is 10,000 under the 95,000 per year cap. So the numbers that were just referenced simply are not correct. Lastly, I would like to just comment this is not a bill about foreign exchange students, but I just say this: We already have in place a system by which individuals can get permanent green cards annually. Approximately 140,000 such cards are available each year. We do not use all of those. So whether or not people coming in under the H-1B program end up becoming permanent employees has not forced that number higher. We do not even use the 140,000. But to the extent that we do use permanent green cards for anyone, it seems to me, at least, that it makes more sense for the people who receive them to be people who came to the United States, were trained in our colleges, then worked in our companies and paid taxes. It seems to me they are more valid permanent green card recipients than individuals who did none of the above. Why should we train people at our colleges to take on these very important 21st century jobs and then see them leave and go work for foreign competitors? Again, it would make some sense to bring that issue up if we were going to be limiting the number of permanent green cards available on an annual basis, but this legislation does not attempt to do this, nor was that part of anyone's proposal. So I think, in sum, that the earlier statements I made remain accurate and certainly are on point to deal with the worker shortage we confront right now. Mr. President, I yield the floor. Mr. ASHCROFT addressed the Chair.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, this program is a very small program. It is a maximum of 1,000 visas a year. It means people who come to this country to create jobs will be given a chance to do so. We have not examined or studied some of the complaints that have been brought forth in both today's debate and in the news media in our subcommittee. Until we do, I urge the Senate not to eliminate this program. I believe it is creating jobs, not taking them away.

Mr. ABRAHAM. Mr. President, I move to table the Bumpers amendment. Mr. President, I ask for the yeas and nays.

Mr. ABRAHAM. Mr. President, I move to reconsider the vote.

Mr. ABRAHAM. I move to reconsider the vote.

Mr. ABRAHAM. Mr. President, our legislation puts America's workers first, and it severely punishes anybody who tries to do otherwise. But the provisions in the regulations that would be necessary to implement this amendment would give the Department of Labor dramatic intrusive powers to intervene in hiring decisions of high-tech companies involving temporary workers. In the permanent worker category, these kinds of provisions typically delay a hiring decision by as much as 2 years. We oppose that in the temporary category. It would have the effect, Mr. President, of setting back the entire temporary worker program when we need it most--as we are trying to address the year 2000 problem and other immediate emergencies before us. For that reason, I propose that we vote to table.

Mr. ABRAHAM. Mr. President, I move to table the second Kennedy amendment numbered 2417, and I also seek unanimous consent that the following rollcall votes be 10 minutes in duration.

Mr. ABRAHAM. Mr. President, I did move to table earlier. I guess the Presiding Officer did not hear.

Mr. ABRAHAM. Parliamentary inquiry. Have the yeas and nays been ordered on final passage?

Mr. ABRAHAM. Mr. President, I send an amendment to the desk on behalf of myself, Senator Kennedy, and Senator McCain in the form of a managers' amendment.

Mr. ABRAHAM. I move to table the amendment by the Senator from Massachusetts and I ask for the yeas and nays.

Mr. ABRAHAM. Mr. President, I move to reconsider the vote by which the motion to lay on the table was agreed to.

Mr. ABRAHAM. I ask for the yeas and nays.

Mr. ABRAHAM. Mr. President, I move to reconsider the vote.

Mr. ABRAHAM. No. 2416.

Mr. ABRAHAM. Yes. I yield back the remainder of my time on the amendments as well, except I believe you still have Senator Bumpers' amendment. At this point, Mr. President, I ask unanimous consent there be 2 minutes of debate equally divided between each of the stacked votes which I am about to propose; and I further ask unanimous consent the order of the votes be as follows: a vote on or in relation to the Kennedy amendment No. 2418, followed by a vote on or in relation to Kennedy amendment No. 2417, followed by a vote on or in relation to the Bumpers amendment 2416.

Mr. ABRAHAM. Thank you, Mr. President. I will respond to the amendments that have finally been offered, as well as to speak about the bill in general. With respect to these amendments, let me say this: Our whole intent in addressing this legislation from the beginning was to provide three things: A short-term solution to meet the current, very significant shortage in high-tech workers which our high-tech industry is confronting, a shortage which, if not met, will severely hurt the American economy and, in my judgment, dramatically reduce our economic growth. The second goal of the legislation is to address the long-term needs we will have for high-tech workers, skilled workers, information technology workers. We attempt to do that in this legislation. We do believe that American workers, American kids, have the skills and talent it takes. The goal is to have the right job training and educational opportunities so that people can develop these skills, and we are in the process, through this legislation, of setting in motion both a scholarship component as well as a job training component to assist in what is obviously a much broader, macro effort that must be undertaken to effectively, in a long-term sense, meet the challenges of the job market of the 21st century. At the same time, we felt it was important in this legislation to protect American workers so that these programs cannot be abused. Let me begin by saying I think these amendments are a solution in search of a problem. For those Members watching and listening right now, in the entire history of this program there have only been eight willful violations of hundreds of thousands of cases--only eight willful violations in this program, and each has been punished. Our legislation says even though that is a tremendous track record and a great expression of the fact that this is a program not being abused, we want to go further. We have dramatically toughened the penalties in such a way that if anybody willfully violates the provisions of using H-1B employees and H-1B visa holders and lays off someone--Mr. President, that has only happened one time in the entire history of the program--if it happens, if somebody is displaced for an H-1B employee, then the company involved will be debarred and prevented from even using the H-1B program for 2 years. In addition, they would pay a $25,000 penalty fine per violation. In short, we have addressed each of the things that have been raised by Senator Kennedy. In my judgment, we have addressed them in an effective way, considering the fact that in the history of the program there have been, in fact, so very few violations. I also say this. The solution proposed by the Senator from Massachusetts would give the Department of Labor a dramatically increased role in the supervision of the high-tech community and other businesses and entities using skilled workers. I do not personally believe either of these amendments could be implemented without the Department of Labor creating massive new bureaucratic regulations and micromanaging these companies. Indeed, I do not believe these companies would go forward and hire anyone on an H-1B program without getting some type of prior clearance from the Department of Labor. We have an attestation process in place, a recruitment process in place for permanent workers. It takes 2 years before the various hoops and regulations can be met. I am not saying that is wrong, but I am saying it is unworkable in the context of temporary workers. We have dramatic needs today for these workers. We have heard, as I said in my opening statement, about the year 2000 problem. We cannot wait 2 years to bring in additional workers to cure the year 2000 problem because we will already be in the year 2000. In a similar sense, we simply cannot take the existing program and undermine it with these complicated bureaucratic Department of Labor regulations. I have heard from the various companies and entities that are seeking an increase in the cap on H-1B visas. They have said an increase in the cap would be meaningless and totally nullified if these kinds of labor provisions are included. They go too far. They would undermine the whole program. And indeed, if they were to be enacted or passed in the form of these amendments, I would be inclined to encourage the majority leader to pull the bill down because I think it would create ultimately a greater problem than we already have today. We have a serious problem already. So, for those reasons, Mr. President, I urge our colleagues to support my motion which I intend to make to table those amendments, and I urge them to pass the legislation. It is vitally needed. It is important to our economy. It is important to our ability to meet the year 2000 challenges, and it is important for us to bring the academics here to train American students so that we will produce these additional workers. That is why it has such broad-based support, bipartisan support in the Senate, academic support throughout the academic community, business support throughout the business community, support among heritage groups, and others. Mr. President, this is not a situation where we are dealing in a zero sum game. People coming in under the H-1B program are not taking jobs away from Americans. In virtually every case, they are contributing to a business, a company, an organization that is growing; and they are creating more opportunities. That is the evidence we had before us in the committee. I think it is what will happen in the 5-year period for which we are seeking this increase, and that will give us time to solve the problem in the long term. Mr. President, I ask unanimous consent that letters I have received from various business groups in opposition to the Kennedy amendments to S. 1723 be entered in the Record:

Mr. ABRAHAM. Mr. President, I thank the Presiding Officer and I yield the floor at this time.

Mr. ABRAHAM. Mr. President, I seek the floor at this time.

Mr. ABRAHAM. Mr. President, I have not spoken yet on this amendment by the Senator from Arkansas, but I think the points that have been made in opposition are ones that our colleagues should observe closely. I think if they do, they would argue in favor of a ``no'' vote on the amendment. I would just say this, though, to the Senator from Arkansas. There obviously have been some concerns raised by the program. He has raised some of those concerns today, and they have been the subject of various articles. But we have not in the Immigration Subcommittee up until this point yet conducted any hearing or examination to determine the degree to which these concerns are appropriately warranted. It is my understanding, though, that the Immigration and Naturalization Service is currently making some significant internal changes to the program that many believe have been previously undermining the goal of the program. I want to look at what the INS is proposing. Based on what I have heard so far, I have some concerns about the approach they are taking, but I want to get a better feel from that before I believe we should move forward with a specific fix--whether it is the fix proposed here, of eliminating the program, or some modified approach. This amendment, if accepted, would simply eliminate the use of these visas. I do believe there are a number of circumstances where we need to learn more before we would go forward. So, therefore, I don't think we should at this point simply hack off an important part of the immigration system without further deliberation and examination. I think the intention of the Immigrant Investor Program is a good intention. We have heard from the Senator from West Virginia of some of the benefits that have already taken place. The goal is of attracting and creating more jobs for Americans and so on. If refinements need to be made, I think we need to examine the program a little more extensively than we have done. I think we need to go beyond the reports in the media. And I think we need to see exactly what the INS' final proposal would be. I say to my colleague from Arkansas, certainly we intend to exercise such oversight in our subcommittee, regardless of what the outcome is here today. But I think it would make sense for us to have that oversight before we simply move to eliminate this program. Mr. President, I yield the floor at this time. Let me ask, before I do, what the status is with regard to time.

Mr. ABRAHAM. The intent of the majority leader would be to have the votes on the amendments to begin at 5:45. I believe we already have an order entered into to that effect. And then final passage to follow on votes on the amendments for which votes were requested. I assume a vote will be requested on the amendment of the Senator from Arkansas. The Senator from Massachusetts has two amendments.

Mr. ABRAHAM. I yield the Senator from West Virginia such time as he may need to speak in opposition to the amendment by the Senator from Arkansas.

Mr. ABRAHAM. And we also need to dispose of the managers' amendment prior to the beginning of the voting. We are hoping to begin the voting--the order calls for it to begin in 15 minutes.