Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the President. I also want to thank the chairman of the committee. He has been a very good chairman. I want him to know that the only reason I offer this amendment is because when we read the bill language of Hagel-Martinez, which has not been voted on by this body, I believe it to be unworkable. I believe it will create another class of illegal immigrants in this country. I believe it is impossible to carry out the deportation requirements of the Hagel- Martinez amendment. Amendment No. 4087, as Modified I send an amendment to the desk, as modified, on behalf of Senators Harkin, Kennedy, Reid, Kerry, and myself. This is a modification of my earlier amendment.

Mrs. FEINSTEIN. Mr. President, I yield 2 additional minutes to the Senator.

Mrs. FEINSTEIN. The Senator is exactly right. The dynamic to add to that is, you create a work differential because these people will continue to be clandestine, embedded in the cultures of our country, and find ways to work, and employers, as they have in the past, will hire them. Then we will be faced with carrying out a program that has never worked and that is employer-sanctioned.

Mrs. FEINSTEIN. Correct.

Mrs. FEINSTEIN. Mr. President, let me state why I think the Hagel- Martinez compromise is not workable. The Hagel-Martinez compromise essentially creates three tiers of people in this country in undocumented or illegal status. The first is 6.7 million who have been here more than 5 years; the second is 1.6 million who have been here less than 2 years; and the third is 2.8 million who have been here from 2 to 5 years. People here less than 2 years are subject to immediate deportation. Someone has to find them, go into their workplace or their homes, pick them up, and deport them. Then one has to consider the likelihood that in about 3 days, which is often the case in California, they will come back to their families and their job. The second is the 2.8 million who must leave, touch back, get in a guest worker program or some other visa program, come back, be in this country, and then, after a period of time, get an employer to sponsor them for a green card or leave. They have a kind of mandatory departure. The guest worker program they would be eligible for is the H-2C program, which we reduced in size from 325,000 to 200,000 in an earlier amendment. The cap of the program is removed for them. Therefore, what is created for this group is a 3 million-person guest worker program, but they cannot earn a path to legalization unless they have an employer who will petition for them. They are limited in the time they can stay in the country, and they must return. My sense, based on the reality of the largest immigration State in the Union, is that these two tiers in Hagel-Martinez simply will not work. We will have large-scale fraud. The people here slightly less than 2 years will present fraudulent documents to show they have been here for at least 2 years. That is what happens now. There is a wide market in fraudulent documents for the undocumented. And those here less than 5 years will shortly realize that when they have to go back they face a precarious situation of whether they can come back legally. If they can't come back legally, I hazard a guess they will come back and find a way to come back illegally. That is a major problem. What we have tried to do is create a program, based on McCain- Kennedy, and to an extent on Hagel-Martinez, saying let's be realistic, let's understand what the situation is, that there is no way it is good to create another illegal class of up to 4.4 million people. It does not make sense to spend the time trying to seek out people living clandestinely. It is much better to create the process for earned legalization which has some meaning and substance, and tests that individuals must pass. So we have created a three-step test for something we would call an orange card. That orange card is like this chart. I picked a color that had no political connotation. This is a biometric card. It has the personal identifiers. It has the photo. It has the fingerprints. It has a number. Once someone has the orange card, that number, essentially, places them in a line. The line would begin with those people here the longest. They have the lowest numbers. Therefore, when the current green card line of 3.3 million people is expunged-- estimated to take 6 to 11 years--the people here the longest in the undocumented status are the first to receive their green card. In the meantime, this would be the identifier. It is biometric. It enables an individual to move in and out of the country, and the individual reports electronically every year with their work history. They will pay a $50 processing fee. They will pay a total $2,000 fine by the time they reach green card status. They will show they are trying to learn English. They will present their work history. To me, it makes better sense because it is able to be managed. The Hagel-Martinez amendment is not able to be managed electronically. Therefore, we have 4.4 million people, plus the remainder of the 10 to 12 million people that you have to handle. It is extraordinarily complicated and difficult to do that. The system was created with good intentions, but I don't believe it is workable. I believe it is subject to fraud. I believe the most difficult part of it is the guest worker part for those who have been here 2 to 5 years. Under Hagel-Martinez, if you are here for 4 years and 9 months, you are 3 months shy of earning legalization. These 3 months cost you the ability to get on a clear path to legalization. With those stakes and no formal documentation that proves when you cross the border, it is only logical to assume that people are going to try to falsify dates in order to qualify for the higher tier. This becomes the bureaucratic nightmare. Then there is the problem for the 2-to 5-year person, of returning to their own country, getting into a legal program and coming back. I pointed out this makes the guest worker program 3 million people because the 200,000 cap is waived, and therefore the 2.8 million come into that program. That is way too many guest workers for any one time. Then there is the mandatory departure part of the guest worker program, which essentially says an individual, once in the country, can only be here for 6 years and then must return to their own country unless an employer will sponsor them for a green card. This in itself might appear to be a good thing, but I want to spend a minute on it. You are dependent on your employer for your legal status after that point. This is a huge burden for an employer to bear. It also means that for some employers that may not be good employers, they have a method to exploit an individual by threatening that, unless they do certain things, they will not recommend them for the earned legalization program and for their green card. We know exploitation does happen. I believe the best step is clearly to put forward a process for everyone in this country, a process that allows you to electronically submit your data, fingerprints, photo, and work history. That is then verified. You then come in. If the verification of your criminal history is adequate, if you pay the fine, and if you are willing to sign up for the orange card, then you receive it. Therefore, you have your biometric identifier, and you can be tracked, if necessary. You are free to leave the country and come back. It is a much sounder path to legalization. I hope this will be the program that eventually is accepted. I now yield time to the Senator from Iowa, my distinguished colleague, Mr. Harkin. I believe he has asked for 5 minutes, or such time as he may consume.

Mrs. FEINSTEIN. That is exactly the point. It is a theoretical plan. For those who live in big immigration States, who live this problem daily, who see the people and their families--many have bought homes, pay taxes, their children are born here and go to school here--it creates a dynamic which puts the Federal Government again in the place of having to find and deport 1.6 million people; and then if the 2.8 million don't follow the mandatory departure section of the program, they are subject to deportation.

Mrs. FEINSTEIN. I yield up to 10 minutes to the Senator from Iowa.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 4076, as Modified

Mr. FEINSTEIN

Mr. FEINSTEIN. Mr. President, may I interrupt the Senator just for one brief change?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I call up amendment No. 4087.

Mrs. FEINSTEIN. Mr. President, this is an amendment to modify the conditions under which aliens who are lawfully present in the United States are granted legal status. It is submitted on behalf of Senator Harkin and myself. We have a half hour to argue the amendment tomorrow, but I would like to just raise a few points about it tonight. I did have the opportunity to speak about it earlier, but I recognize many Members were not yet back and available. This amendment creates an orange card, a replica of which is on my left. This would streamline the process for earned legalization. It would create a more workable and practical program than exists in the Hagel-Martinez compromise, and it would dedicate the necessary dollars to cover the costs of administering this program. This amendment builds on compromises already agreed to under the McCain-Kennedy and Hagel- Martinez proposals, and it incorporates the amendments already adopted on the floor, but it eliminates what I consider to be a very unworkable three-tier program. This amendment only deals with the earned legalization parts of the bill. It does not change any of the border security provisions, the guest worker program, or any other component of the bill. It would simply eliminate the program created by Hagel- Martinez and replace it with this orange card program. Under Hagel-Martinez, there are three tiers. Now, note this: We have not voted on Hagel-Martinez. Hagel-Martinez was an arrangement put together by Members of this body and it was brought up by using rule XIV. We have not voted on it. It essentially takes the 11.1 million people now in this country--working in this country, living in this country, raising their families in this country, but doing so in a clandestine way--and divides them into three different categories. For the 6.7 million who have been here more than 5 years, it would provide a transition to achieve earned legalization. For the 1.6 million who have been here less than 2 years or the 2.8 million who have been here from 2 to 5 years, it creates two different tiers, and this is the bone of contention, these two different tiers. I would say for anyone here as of the first of the year, we should provide this orange card process which I will describe in a moment. The problem doing it the Hagel-Martinez way is that it opens the door for fraud and for manipulation because you essentially have 4.4 million people here less than 5 years who would come forward and produce, in all likelihood, fraudulent documents, or simply remain in a clandestine status because they are working and they have families here. The 2.8 million who have been here 2 to 5 years are then subject to leave the country, to touch back and enter into the country through a visa program, most likely the H-2C worker program which has 200,000. We lowered the cap for the H-2C program from 325,000 to 200,000 in an earlier amendment offered by Senator Bingaman and myself. But what people haven't realized is that the cap would be waived for individuals coming in from this tier, which would raise the guest worker program to 3 million people. And then here is the rub with the guest worker program: they would have to return after a period of time to their country. Therefore, there is no automatic path to earned legalization for these people, unless they can get an employer to petition for them for a green card. I think that is an unusual responsibility placed on an employer for so many people, and I think it is not fair for the employee, either. Therefore, we have put forward a three-step process under the orange card amendment, which has received the support of 115 organizations and groups. Under this amendment, all undocumented aliens who are in the United States as of January 1 would immediately register a preliminary application with the Department of Homeland Security. At the time of the registration, they would submit fingerprints to the Customs and Immigration Services facility so that criminal and national security background checks could commence. It would create a more precise registration that would allow this to proceed electronically. That is a major key--proceed electronically so that DHS would have time to do the necessary processing and vet the application in an orderly manner. Then they would submit a full application for their orange card. Once they have passed the security background check, they have paid their back taxes, they have paid the $2,000 fine, then they would be issued the orange card. The orange card would have biometric identifiers, would have the history of the individual, and would have a number, and this number would be designed so that those who have been here the longest would be first in the line for the green card at the end of the work period. As everyone recalls, there are 3.3 million people back in their own countries waiting for green cards. None of this goes into play until that green card list is expunged. It is estimated that could take anywhere from 6 to 11 years. So during that period of time, individuals in this country would have an identifier: the orange card. This would be their identification. They could come and go with it. It is fraud- proof, it is biometric, it has a photo, it has a fingerprint, and therefore provides a safe methodology. As long as individuals fill out the annual reports required by the program which attest to their work history, pay the fine, and pay their back taxes, they would keep the orange card effectively in place. I wish to comment that first of all, Senators Hagel and Martinez have done a service. They have tried to work out a compromise. I find fault with that compromise only when you read the small print of the bill language. When you read the bill language, you see that it is a huge program with 4.4 million people having to be found, having to be sought out. If they are here for less than the 2 years, they are deported. Who would deport them? How would they be found? You are going to find 2 million people? I think that is very difficult to do. We know employer sanctions haven't worked. In 2004, total convictions under employer sanctions for the tens of thousands of employers who employ these people was a total number of 47. So I believe the orange card would serve us well. It is a streamlined process. It has the ability to consider all people to avoid the problem of deportation but to create a system which is secure, where people are checked out, where they are held accountable for their work, held accountable for their payment of back taxes, held accountable for the payment of a fine so they can then come out of the shadows and live a more normal and more productive life. This goes back to the original McCain-Kennedy formula, but in essence it essentially provides that there is an orderly process connected with this. As I said earlier, I think there is a critical flaw in Hagel- Martinez, and that is those people who fall into the second tier can remain in the United States legally for up to 3 years, and then they must leave the country and find a legal program from which they may reenter the United States. This is the flaw because this would subject people to, once again, going back into a clandestine lifestyle rather than running the risk that they leave their families, go home, can't get into a program, and then can't come back again. The other problem with the Hagel-Martinez program is that if an individual doesn't work for 60 consecutive days, they are out. There is no provision for injury, there is no provision for illness, and when you are dealing with 6 million people, that is a problem. Some people are going to be the victims of bona fide injuries or bona fide catastrophic circumstances and not able to work for a period of time. So if they become injured or ill and effectively can't be on the job for 60 consecutive days at any given time during the year, they are then subject to deportation. I believe we have an opportunity, through the border patrol with 12,000 additional agents, 2,500 additional inspectors, the money in the supplemental appropriations bill for the border, the National Guard doing logistical support and physical work on the border, and the fence to be built on the border, to make a major step forward in securing our borders. The next step and the most important part of the bill is what is the proper handling of the 10 million to 12 million people who are here illegally in our country at this time. I would respectfully submit to this body that the fair handling of these people is creating a pathway to an earned--not an amnesty--but an earned legalization where people have to document over a consequential period of time that they are working, they are good citizens, they are learning English, they are paying their taxes, and they are paying the fine. All of the proceeds from this fine would go to support the costs of the program. If there are 10 million people, at $2,000, that produces $20 billion for the additional hires that are necessary to run this program and hopefully run it well. So we will continue to argue this tomorrow, and I ask that the amendment be set aside at this time.

Mrs. FEINSTEIN. I can speak for California, and California's Farm Bureau has signed off on this. I can tell the Senator that no State has as many farmers and growers as California does. This is the accepted agreement. I thank the Senator.

Mrs. FEINSTEIN. Will the Senator yield?

Mrs. FEINSTEIN. I thank the Senator. My time has expired. I urge the Senate to vote no on the Chambliss amendment.

Mrs. FEINSTEIN. How long has this agreement been in place?

Mrs. FEINSTEIN. This has been a longstanding compromise that has been out there, which is a negotiated compromise. If I might ask one other question, in the negotiations that the Senator had on AgJOBS, how long did it take to come up with this negotiated compromise?

Mrs. FEINSTEIN. Is it not true that when I introduced the blue card program in the Judiciary Committee I just took that part of the H-2A program which the Senator and Senator Kennedy had put together in the AgJOBS bill?

Mrs. FEINSTEIN. Mr. President, I have had an opportunity to listen to the discussion between Senator Craig and Senator Chambliss on this provision of AgJOBS which we put in as part of the blue card. I congratulate Senator Craig on one of the most colorful charts that we have seen. The labor provision of this bill is a compromise that was negotiated. I think it makes sense to leave it that way. It is left that way for 3 years. This has been the subject of long negotiations. After many attempts to try to find the right balance, Senators Kennedy and Craig struck an agreement that was supported by both growers and farm workers across this Nation. That is the language in this bill. Under AgJOBS, H-2A workers are paid the greater of the prevailing rate or the adverse effect wage rate. As Senator Craig has said, the standard is frozen at 2003, and growers will be required to pay the prevailing wage, or what the adverse wage rate was over 3 years ago. The compromise states that this will be the wage rate just for the next 3 years. And during that time, the GAO and a commission of agricultural and labor experts will perform two studies examining H-2A wage rates and making recommendations to Congress. If at the end of the 3 years Congress fails to enact a new adverse effect wage rate, the adverse effect wage rate would be adjusted by the cost of living. While changing AgJOBS isn't, alone, a disqualification, I think we have to be very careful before we upset what has been a very carefully crafted compromise that is supported by a broad coalition of Members from all sides of the debate. If I might, I would like to ask Senator Craig a question. Since he was the one who negotiated this, is it not true that this is a broadly agreed upon solution for both farm workers as well as growers?

Mr. FEINSTEIN

Mr. FEINSTEIN. Thank you very much.

Mr. FEINSTEIN. Mr. President, I ask that instead of setting aside the amendment, it will be continuing in a pending status.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I ask unanimous consent that letters of support for the amendment from the Congressional Hispanic Caucus and over 115 groups and organizations from around the country be printed in the Record. There, being no objection, the material was ordered to be printed in

Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from New Mexico for his thoughtful comments on the bill. I have the privilege of serving as a member of the Energy Committee, of which he is chairman. It has been a pleasure for me to serve under his chairmanship. I thank him for those comments. I come to the floor to discuss an amendment, SA 4087, which I filed this morning. It is entitled ``To modify the Conditions Under Which Aliens Who Are Unlawfully Present in the United States Are Granted Legal Status.'' I ask unanimous consent that Senator Harkin be added as a cosponsor of the amendment.

Mrs. FEINSTEIN. Mr. President, I make these remarks as a 13\1/2\-year member of the Senate Judiciary Committee and the Immigration Subcommittee. I also come from a State which is very large in terms of immigrants, both legal and illegal, and a State which is a dynamic economic engine for our country. I strongly believe that any comprehensive immigration bill must address three issues: a strengthening of our borders so that they are safe, effective, strong; a limited guest worker program and an overhaul of the visa system; and most importantly, I believe, the creation of a pathway to earned legalization for the large number of people, estimated at between 10 and 12 million, who live today invisibly in our Nation and who have become a critical part of the American workplace and on whom employers depend to do work Americans will simply not do. I respond to our analysis of the Hagel-Martinez amendment, and my remarks are in two parts. The first part will be to propose an alternative to Hagel-Martinez. The second part will be a critique on what I see are substantial flaws in the Hagel-Martinez amendment. I first thank both Senators Hagel and Martinez. They have done a great service to the Senate and our country by trying to come up with a compromise solution to what is a major problem facing our Nation. Nonetheless, I find significant structural and practical faults and have tried to correct those with the proposal I have just introduced and will be speaking on now. I am introducing what is called an orange card amendment. This amendment would streamline the process for earned legalization. It would create a more workable and practical program and dedicate the necessary dollars to cover its costs of administration. This amendment builds on the compromises already agreed to under McCain-Kennedy and Hagel-Martinez, and it incorporates the amendments already adopted on the Senate floor. But it eliminates what I see as an unworkable three- tiered program under Hagel-Martinez. This amendment only deals with earned legalization. It does not change any of the border security provisions, the guest worker program, or any other part of this bill. Therefore, this amendment would essentially eliminate the program created by Hagel-Martinez and replace it with the orange card program I am now going to explain. Under this amendment, all undocumented aliens who are in the United States as of January 1, 2006, would immediately register a preliminary application with the Department of Homeland Security. At the time of the registration, they would also submit fingerprints at the U.S. Customs and Immigration Service's facility so that criminal and national security background checks could commence immediately. That is the first step. It would also create a more precise registration system that would allow the immediate inflow of information into the Department of Homeland Security to be processed electronically, which the Hagel-Martinez amendment does not, and which is what we have been told is essential to ensuring that DHS can handle this new workload. It would give the Department time to vet the application through a thorough and orderly process. This would be the first step. Under the second step, petitioners would submit a full application for an orange card in person by providing the necessary documents to demonstrate their work history and their presence in the United States. Their application would also require that they pass a criminal and national security background check that would be carried out based on the information and fingerprints from the preapplication; they demonstrate an understanding of English and U.S. history and Government, as required when someone applies for their citizenship; they have paid their back taxes; and they would pay a $2,000 fine. The money from this fine would be used to cover the costs of administering the program. These requirements are the second step of what is required to earn an orange card. They also comply with previous amendments passed on the floor of the Senate during this debate. If the application is approved, each individual would be issued what I call an orange card. I selected orange because the color had no connotation I could think of. This card would be encrypted with a machine-readable electronic identification strip that is unique to that individual. The card itself would contain biometric identifiers, anti- counterfeiting security features, and an assigned number that would place that individual at the end of the current line to apply for a green card. The number would correspond to the length of time that the petitioner has been in the United States so that those who have been here the longest would be the first to follow those currently waiting to receive a green card. That is the 3.3 million people outside of the country awaiting a green card. These cards would go in order following the expunging of that line. The issuance of an orange card would allow individuals to remain in the United States legally and work, as well as travel in and out of the country. It would become their fraud-proof identifier, complete with a photo and fingerprints. This is the second step to earning legalization. The third step is that on an annual basis, each individual who applies for an orange card would submit to DHS documentation either electronically or by mail that shows what they have been doing in that year, the work they have carried out, that they have, in fact, paid their taxes that year, and whether they have been convicted of any crime during that year, either through court documents or an attestation, and they would pay a $50 processing fee. These three steps, plus the required wait at the back of the green card line, clearly indicates that this is not an amnesty program. The legalization in the orange card must be earned, and it must be earned over a substantial period of time. It would be available to all who are here from January of this year. This language will ensure that there are enough funds to run the program because there is a $2,000 fine that would be dedicated to paying for the administration of the program and a $50 annual processing fee. For example, assuming there are between 10 and 20 million undocumented aliens already in the United States who would have to pay a $2,000 fine, if 10 million came forward, that alone would raise $20 billion. So the program would be covered. By including this language, this amendment protects against creating a new burden on taxpayers and ensures that the Federal Government has the necessary money to make the program work. Another safeguard contained in the amendment is the annual reporting requirement. By including this process, this amendment will ensure that individuals who apply to this program remain productive and hard- working members of their communities. The amendment requires that individuals must work for at least 6 years before they may adjust their status. Realistically, from what we know about the number of green card petitioners legally waiting in other countries for their green card, it is much more likely that they would have to wait a longer time before the process is completed. Again, this is not amnesty. It is a clear path to an earned legalization. These prospective reporting requirements ensure that only individuals who deserve to adjust their status and continue to be productive members of their communities may become legal permanent residents. In addition, by focusing on prospective requirements, this amendment streamlines the process and helps avoid the bureaucratic morass that has been created other times when Congress has acted. If we don't get this right, we will end up repeating mistakes of the past. We will simply create new incentives for illegal immigration, and we will enhance the problems our country now faces in tracking who is coming and going across our borders. Remember, it is estimated that about one-third of those who receive visas do not leave the United States when their visas expire. So the problem is not only people coming across the border; the problem is also people misusing their visas. In 2004, there were just over 30 million visas issued. That is an unbelievable amount, but it is true. That means there could be up to 10 million people who overstayed their visas and remained in the United States. Now, of course, most of them probably didn't stay here permanently. But it is clear from these statistics that our visa program has a serious problem when it comes to enforceability. I strongly believe we must find an orderly way to allow those already here, many of whom have families, strong community ties, and some who have U.S. citizen children, to earn legalization over a substantial period of time. And virtually every poll I have seen has shown that over 70 percent of the American people agree. They know there are many people who are critical parts of our workforce. They work in agriculture, in landscaping, in housing, in the service industry, in the hotel industry, and they work all throughout our economy. I know some who not only have children, but their children are excelling. They not only live here, but they own homes, pay taxes, and they work hard. This is important so that this population can live fully productive lives without being subject to abuse or exploitation, and so that American commerce has the workforce that is necessary for agriculture, as well as many other industries. During consideration of this bill in the Judiciary Committee, of which you are a distinguished member, Mr. President, we adopted an amendment referred to as the McCain-Kennedy program that was offered by Senator Graham. This amendment created an earned legalization program that would also set up a number of hurdles individuals must pass through in order to earn their legalization. The Graham amendment was adopted by a bipartisan vote of 12 to 5 and was in the base bill previously considered by the Senate. However, since that time, a new program was created and replaced McCain-Kennedy in the underlying bill. That program is known as the Hagel-Martinez compromise. It is important to point out that neither this body nor the Judiciary Committee has voted to adopt the three- tiered system which the Hagel-Martinez compromise proposes and which is now before this body. Hagel-Martinez would treat people differently, depending on how long they have been in the United States. It is estimated that 6.7 million have been in the United States for more than 5 years; 1.6 million, less than 2 years; and 2.8 million, 2 to 5 years. The source of the numbers is the Pew Current Population Survey. So we have three tiers--more than 5 years, 2 to 5 years, and less than 2 years. After an examination of the Hagel-Martinez language, I have come to believe that the three-tiered system is unworkable, that it would create a bureaucratic nightmare and it would lead to substantial fraud. My staff has consulted with current and former Government staff who have expressed serious concerns with the practical implications of how such a program could be implemented. We already know the Department of Homeland Security is overburdened. Just for a moment, look at the problems they face today. Our current system is running neither efficiently nor effectively, and we all know that. Let me just put on the table a few examples. Currently, the Department of Homeland Security is struggling to implement a fully functioning US-VISIT Program to monitor those who are entering and exiting our country. This system of checking people in and out with a biometric card is only half completed. It is many years overdue. The Bureau of Citizenship and Immigration Services struggles with enormous backlogs in applications from those who come to this country and attempt to adjust their status legally. FBI background checks often take between 1 or 2 years to process fingerprints. Naturalization lines are so long, it can take a person years and sometimes even decades to get through the system. How on Earth is DHS going to be able to handle a new program which cannot be run electronically and which will require massive documentation and enormous staff time? What we have done is provided a structure for an electronic handling of the data submitted by the individuals, the electronic verification of the data, the checking out of this data. Hagel-Martinez creates a tiered system where those here less than 2 years are subject to deportation and those here from 2 to 5 years must return to their country and get themselves somehow into a guest worker program. It is estimated that 1.6 million people have been here for 2 years or less, and approximately 2.8 million have been here from 2 to 5 years. So that is 4.4 million people who are going to be asked to leave the country one way or another. Do you believe they will? History and reality shows that they will not. How will the Government find all of them and deport those who do not leave voluntarily? And if they are found and deported, what would lead us to believe they will not come right back to join their families and return to their jobs? Secondly, individuals who have been here just under 2 or 5 years will inevitably try to argue they qualify for a higher tier. I think it is only realistic to expect that these tiers will become a breeding ground for flawed, fraudulent documents, and true evaluations will be virtually impossible to make. How on Earth are DHS personnel going to be able to verify when an individual entered the country to determine the less than 2 years or the 2- to 5-year tier? When it comes to the second tier, 2 to 5 years, and the deferred mandatory departure program of Hagel-Martinez, I am concerned about how this process is going to function and who is going to follow through with executing its requirements. How is the Department of Homeland Security going to find these people who have been here 2 to 5 years and ensure that they actually leave the United States? Does anyone really expect that a father or a mother will voluntarily leave their families and go outside the country for this so-called touchback? What is the incentive for people who have already been living in the United States to come forward and go through this process? In order to understand why I have these questions, I think it is important for everyone to understand how the deferred mandatory departure program of Hagel-Martinez is supposed to work. There has been a lot of discussion about the program, but when you read the fine print of the bill language, there are serious questions and consequences that need to be better understood. My understanding of the bill language is that a person who falls into this second tier, who has been here for 2 to 5 years, may remain in the United States legally for up to 3 years and then they must leave the country and find a legal program through which they may reenter the United States. This is the critical flaw in Hagel-Martinez. People will not risk leaving their families or their jobs in the hopes that once they leave the United States they will be able to reenter through a visa program, whether that be the new H-2C guest worker program or another visa program. To compound this problem but ostensibly to make it possible, Hagel- Martinez waives the 200,000 visa cap that we just reduced from 325,000 in the Bingaman-Feinstein amendment on the H-2C program. In doing that, this would create a larger bureaucratic hurdle, a difficult standard of proof, and a complete decimation of the limits on the guest worker program. Instead of a new guest worker program--H-2C--that will bring in 200,000 people a year, we would be, in effect, creating a guest worker program that is supposed to accommodate 2.8 million people, plus another 200,000 people annually. So through this deferred mandatory departure, the Congress creates a guest worker program that will need to accommodate over 3 million people. But putting all that aside, assuming this was actually doable, there are other problems. For instance, the H-2C guest worker visa only lasts a maximum of 6 years. So every person will quickly see that this is not an automatic path to earn their legalization, and they will be forced out of the country at the end of the 6 years. Will they go? I doubt it. I think you will have a new illegal immigrant problem. The path to legalization has been modified through the amendment process on this floor, and now an H-2C worker will likely need their employer to petition for a green card on their behalf. An employer has to petition for it, meaning that, for 2 million people, their only hope to continue to live in the United States is through the grace of an employer. I think this places an undue burden on an employer, and it leaves workers vulnerable to exploitation from bad employers. Also, H-2C workers, their spouses, and their children are not allowed to remain in the United States if the worker fails to work for an approved employer for more than 60 consecutive at any time during the 6 years, with no exception for health problems or injuries. This will mean that if an individual does become injured or ill, they become deportable. In addition, all rights to administrative or judicial review of any future removal actions, are eliminated. Combined, in my view, these provisions are ill-advised. They make individuals extremely vulnerable to abuse, they put high burdens on employers, and they open the situation up to exploitation. That leaves me to wonder, with these shortcomings, why would anyone in these categories participate in this program? Why would someone who is already living here clandestinely, working, and already active in their community voluntarily come forward and register with the Department of Homeland Security and leave the United States to join this program? With these risks and pitfalls, my experience in California and my 13\1/2\ years on the Immigration Subcommittee tells me they won't. At worst, I fear we are creating an incentive for individuals to continue living under an illegal status, and I don't know how that benefits this Nation, the people of our Nation, the employers, or the people who are here today in an undocumented status. At best, we are creating a new burden on DHS to locate and monitor millions of people who are clandestinely integrated into the fabric of our Nation today. In addition, the Hispanic National Bar Association specifically criticized this second tier, and it wrote this: We are particularly concerned that requiring individuals in the [second tier] to leave this country in order to fully legalize their status will result in severe disruptions for families, workers, and employers . . . We [also] believe that creating an additional class of undocumented immigrants will lead to greater administrative burdens as it will require the implementation of two different paths to legalization. I think that is a very true statement. Let me speak about the third tier for those who have been here for less than 2 years because according to Hagel-Martinez, they must all be deported. This means that DHS would be required to find and deport 2 million people. That is the bill we are going to pass--2 million, find them, deport them. How is that going to get done? Even President Bush acknowledged that such a large-scale deportation program is unworkable when he said this: It is neither wise nor realistic to round up millions of people and send them across the border. The only method to compel compliance with Hagel-Martinez is through employer sanctions, and we know from experience over dozens of years that employer sanctions do not work. In fiscal year 2004, only 46 employers were convicted of illegal immigrant employment--46 employers--out of the tens of thousands of employers whom we know employ the undocumented, and the number of employer sanctions cases resulting in fines has declined from a peak of nearly 900 under President Clinton to only 124 in fiscal year 2003. Not to mention even when employers are raided and then sanctioned, there is a backlash from the public. So I am one who doesn't believe it is realistic to assume that, first, the Department of Homeland Security is going to be able to go out and deport 2 million people; and then secondly, to ensure that the other 2.8 million leave to go back for the touchback program. So because of these concerns about the workability, the practicality, and the real-world impact of such a three-tiered system, I believe we have to create a much more efficient process, and I believe the orange card process is the best way to ensure that our policy goals in creating a path to legalization can be implemented and realized. The structural flaws of Hagel-Martinez must be corrected, and this amendment essentially corrects them. It is workable, it is practical, it does not reward illegal immigration, but it creates a pathway for everyone in this country as of the beginning of this year to show over a substantial period of time annually that they have been and will continue to be a responsible and productive member of American society. It puts the burden on them to go in, to petition, to submit their fingerprints, to submit their photographs, and to wait for those to be checked out before they would be issued the orange card. Once you have this orange card then you know you are legal. You can come in and out. It has the biometric identifiers. It is fraudproof. And the orange card has the additional ability of being numbered, so you also know that the lower numbers are going to people who have been here for the 10, 15, 20, 25, and 30 years that we know people, in fact, have been in this country. It is done in a way that can be carried out electronically, and I think that is part of the strength of the program. Here we have a pathway that requires an individual to show over a substantial period of time that they have been and will continue to be a responsible and productive member of American society and to do so with certain tangible deeds: the tangible deed of work, the tangible deed of living a legal life, the tangible deed of paying back taxes, the tangible deed of learning to speak English. This is not amnesty. Nothing happens immediately. Amnesty is the immediate transition of someone from an illegal status to a legal status. If an individual cannot demonstrate these things, they will not receive a green card at the end of this long pathway, and then at that time they are deportable. If a bipartisan majority agrees that an earned legalization program is a critical part of a comprehensive immigration reform bill, then the program must work on the streets and it must be carefully structured so that it can be carried out. I believe this program can be carried out, and I am sorry to say that as currently structured, I do not believe the three- tiered process of Hagel-Martinez can or will be carried out. This is an amendment on which I hope we will vote. It is at the desk. I ask my colleagues to look at it, study it, and if they have modifications--this is a complicated issue--if they have modifications they would like to see, please bring these to us because we hope there will be a vote in the next couple of days. I thank the Chair, and I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. California would prefer having two Smiths. But we will talk about that another day. The Smiths' maternal grandfather, Jesse Udall, was the chief justice of the Arizona Supreme Court. So Milan Smith stands poised to follow family precedent in serving on one of our Nation's highest courts. I congratulate him on this nomination. I urge all of my colleagues to vote for him. I say to his younger brother, who is sitting here in the Chamber, that it is a wonderful day for both Senator Boxer and for me to be able to see you so happy. I know what it means to you and how great it is to have such a fine legal mind in your family. We offer you our best congratulations, as well. Thank you very much, Mr. President. I yield the floor.

Mrs. FEINSTEIN. Certainly.