|U.S. House of Representatives
Washington, DC 20515
|July 22, 2003|
Article 1, Section 8 of the U.S. Constitution states that “Congress shall have the power….to establish an uniform rule of Naturalization…” In other words, the legislative authority to shape immigration law is well understood to be explicitly reserved to the legislative branch of the federal government. Well understood by everyone except the Office of the U. S. Trade Representative.
Within the pending Chile and Singapore Free Trade Agreements-H.R. 2738 and 2739-are new and potentially dangerous policy initiatives in the area of U.S. immigration law. At a time when hundreds of thousands of U.S. professional and technical workers are jobless and looking for work, the USTR has usurped Congressional authority over immigration law to create new professional guest worker programs in each agreement. Given our current economic circumstances, now is not the time to be creating precedent setting trade agreement-related guest worker programs that will not only import thousands more foreign workers but are like the H-1B and the L-1 programs, completely disconnected from the realities of labor market conditions.
These provisions were hatched by USTR in negotiations with Chile and Singapore with little or no meaningful or timely input by leadership of the House and Senate Judiciary Committees. Such consultation would likely have resulted in USTR being told by members of Congress to keep their hands off of this policy area. As a result, the guest worker provisions in the two agreements initially contained few meaningful safeguards that Congress had included in other long-standing guest worker programs. Push back, principally from Judiciary Committee Chairman James Sensenbrenner, ranking Committee member John Conyers and Senator Diane Feinstein resulted in the adoption of a host of corrective measures that better reflect current law. Still the guest worker provisions are seriously flawed and should be rejected.
- The one year, guest worker visa created by these agreements, described erroneously as “temporary entry”, is in fact renewable forever. No other guest worker program in U.S. law contains such an extraordinary and ill-advised provision.
- Congress would be proscribed from applying any reforms to other guest worker programs that it may adopt in the future, such as improved worker protections, to the Chile and Singapore visas if they conflict with the agreements. No trade agreement negotiated by the executive branch should ever be allowed to impair the sovereignty of the U.S. Congress to fully exercise its legislative authority.
- Under the H-1B program, the Department of Labor is authorized to self-initiate investigations of employer abuse or fraud based on specific, credible information. No such authority exists in the implementing legislation.
- The additional Labor Condition Application (LCA) requirements that apply to “dependent” employers (defined as employing 15% or more H-1B workers) under the H-1B program are also omitted. Under the H-1B program, these employers must attest that they are not displacing U.S. workers and that they are trying to find U.S. workers to fill the jobs that will be going to H-1B workers. No such attestation requirements relating to dependent employers apply to these trade agreements.
- While the H-1B visa fee of $1,000 was belatedly added to the implementing legislation accompanying the agreements, prohibitions against employers shaking down visa holders for repayment of the fee are not.
- As to the fee itself, either Chile or Singapore could file a dispute claiming that the fee is impairing and delaying trade by keeping some professionals out. A bi-national, FTA dispute panel – not Congress – would make the final decision on this question.
- The definition of a “professional” worker is not the same as that contained in U.S. immigration law. The H-1B program only includes occupations requiring the application of “a body of highly specialized knowledge” (see 8 U.S.C. ß 1184(i)(1)(A)). Yet the Chile and Singapore agreements leave out the requirement that the body of knowledge be ” highly” specialized. This change could lead to the inclusion of professions under the Chile and Singapore agreements that are not be included under our H-1B system.
- The Chile and Singapore agreements omit the bound list of specialty occupations found in NAFTA. This list of the 63 occupations in which a TN visa can be made available to Mexican professionals under NAFTA is completely absent from the Chile and Singapore agreements. (The U.S.-Jordan Free Trade Agreement contained no new commitments on the entry of professionals). It is unacceptable to include a definition of “professionals” in the Chile and Singapore trade agreements that is broader than that found in our domestic law and broader than that found in previous trade agreements.
- The agreements may allow workers who do not have direct employment in the U.S. but in fact are only contractors, to use the new visa category. Under these rules, professionals could enter to perform various contracts or work for temp agencies, and their ultimate employers would not have to take any responsibility for guaranteeing that the domestic labor market is not being undermined. Temp agencies or “body shops” have been a primary abuser of both the H-1B and L-1 programs and are the subject of separate L-1 reform bills recently introduced by Representatives Mica and De Lauro.
In addition, there are other unanswered questions about these controversial provisions.
What exactly are the number of visas in the agreements based on? During Senate Judiciary Committee hearings, a representative of the USTR referenced the fact that according to the most recent yearly numbers available Singapore had used only 660 H-1B visas. Why then did the USTR set their trade visas at 5,400-over eight times what they actually use under H-1B?
One Senator learned from a side bar discussion with a representative of the Singapore government that they had not asked for the guest worker concession. Why then did the USTR, apparently on its own volition, include it the trade agreement?
The inclusion of so-called “temporary entry” guest worker provisions in these trade agreements has turned into a fiasco of patchwork legislating designed to belatedly conform them to existing law. Yet, despite the commendable efforts of key members to achieve that end, these agreements still remain defective.
In the final analysis, no logical argument can be made for the necessity of including new guest worker programs in these trade agreements. Congress should therefore send a clear an unequivocal message to the USTR that they have crossed the line; that an Executive branch agency had no business meddling in immigration law and that negotiation of immigration law into these trade agreements is an unacceptable violation of constitutionally-mandated separation of powers.
The Congress should dispatch this message to the USTR by sending these agreements back to the negotiating table for the expressed purpose of removing the guest worker provisions. On behalf of the 4 million professional and technical workers that our 25 member unions represent, I respectfully urge you to vote against these agreements.
Thank you in advance for your consideration.
Paul E. Almeida