Senator Feinstein, Republican Colleagues Urge President to Withdraw Proposed Free Trade Agreements with Chile and Singapore

July 17, 2003

Washington, DC - Senators Dianne Feinstein (D-Calif.), Jeff Sessions (R-AL) and Lindsey Graham (R-SC) today urged President Bush and U.S. Trade Representative Robert Zoellick to withdraw proposed Free Trade Agreements with Chile and Singapore because of the inclusion of immigration worker provisions that should be subject to separate consideration by Congress.

"We are writing to urge that you withdraw the transmittal of the legislation implementing the Free Trade Agreements with Chile and Singapore," the Senators wrote in letters to President Bush and Trade Representative Zoellick. "We ask that you renegotiate or reconfigure the trade agreements without the immigration provisions and re-transmit a new version of the implementing legislation to Congress."

Senators Feinstein and Sessions both voted against the bills in Judiciary Committee today and Senator Graham reluctantly voted "Aye," after noting that although he opposed the inclusion of the immigration provisions, he had made a previous commitment to the Administration vote for it. The bills passed out of Committee on an 11-4 vote and are expected to be considered by the full Senate next week.

"Currently, the United States has an unemployment rate of 6.4 percent, the highest it has been in 9 years. In California, the unemployment rate is 6.7 percent," Senator Feinstein told the committee. "In the San Francisco Bay Area, the technology boom and subsequent bust has created a huge pool of unemployed skilled labor. For example, San Jose has an unemployment rate of 9.4 percent. More and more out-of-work technology workers are filing complaints with the government or going to court to protest perceived abuses with the H1-b and L-1 visa programs.

And yet, the Administration has seen fit to push through free trade agreements with immigration provisions of which very few of us could predict the consequences," Senator Feinstein said. "How many of us really understand the scope of these provisions and the impact on our U.S. and immigrant workers?"

Senator Feinstein continued: "Trade agreements are not the appropriate way to enact immigration laws. Such agreements have a lasting impact. They cannot be amended or corrected by legislation should Congress find that there were unintended consequences, such as U.S. worker displacement or a greater susceptibility to fraud."

In their letters to President Bush and the Trade Representative Zoellick, the Senators wrote: "We are very concerned about the U.S. Trade Representative’s inclusion of immigration provisions in the Free Trade Agreements with Chile and Singapore. We believe they interfere with Congress’ plenary powers to regulate the nation’s immigration policy, including the admission of foreign nationals.

Article I, section 8, clause 4 of the Constitution provides that Congress shall have power to "establish an uniform Rule of Naturalization." The Supreme Court has long interpreted this provision of the Constitution to grant Congress plenary power over immigration policy. As the Court found in Galvan v. Press, 347 U.S. 522, 531 (1954), "that the formulation of policies [pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government." And, as the Court found in Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)), "[t]he Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’"

Moreover, as drafted, the provisions of the trade agreements would substantially erode the current H-1B labor attestation. Today, the labor attestation process is one of the only safeguards in the H-1B system for ensuring that employers do not abuse temporary workers or undermine the U.S. labor market.

Current H-1B laws require additional attestations of "H-1B dependent" employers, whose workforce comprises at least 15 percent H-1B foreign professionals. Specifically, dependent employers seeking temporary workers must attest that they are actively trying to recruit U.S. workers for the positions filled by the foreign workers. They must also attest that they have not laid off U.S. workers 90 days prior to or after hiring H-1B nonimmigrants. These additional requirements are not mentioned anywhere in the agreements with Singapore and Chile. However, we believe such requirements necessary to ensure that employers who repeatedly participate in temporary visa programs abide by all laws governing the entry of the foreign workers.

Another concern is that, as drafted, visas for the temporary foreign workers under the agreement would be indefinitely renewable. This, in effect, could transform what on paper is a temporary entry visa program into a permanent visa program. The Administration has agreed to inserting language in the implementing legislation to require renewals to be counted against the numeric H-1B cap after six years. While this is a desirable step, it does not address the concern that each visa holder would be permitted to remain in the United States for an indefinite period of time. Thus, employers could renew their employees’ visas each and every year under the agreements, with no limits, while also bringing in new entrants to fill up the annual numerical limits for new visas. This effectively would obliterate Congress’ ability to limit the duration of such visas when it is in the national interest to do so.

In the end, we believe trade agreements are not the appropriate vehicle for enacting immigration laws. Such agreements have a lasting impact. They cannot be amended or corrected by legislation should Congress subsequently find that there are unintended consequences.

We ask, therefore, that you withdraw the implementing legislation of the Free Trade Agreements with Chile and Singapore and re-transmit legislation without the immigration provisions."