[House Report 108-225]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-225
HOUSE OF REPRESENTATIVES
1st Session Part 2
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UNITED STATES-SINGAPORE FREE TRADE AGREEMENT IMPLEMENTATION ACT
_______
July 22, 2003.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2739]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2739) to implement the United States-Singapore Free
Trade Agreement, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 11
Committee Consideration.......................................... 11
Vote of the Committee............................................ 11
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Performance Goals and Objectives................................. 15
Constitutional Authority Statement............................... 15
Section-by-Section Analysis and Discussion....................... 15
Changes in Existing Law Made by the Bill, as Reported............ 16
Agency Correspondence............................................ 19
Markup Transcript................................................ 24
Mock Markup Transcript........................................... 87
Minority Views................................................... 93
Purpose and Summary
On May 6, 2003, United States and Singapore entered into a
bilateral Free Trade Agreement (``FTA''), concluding a
negotiation process that began in December 2000.\1\ H.R. 2739
approves the U.S.-Singapore FTA submitted to Congress on July
15, 2003 and makes changes to United States law necessary to
ensure compliance with the agreement. The legislation contains
four titles: Title I, ``Approval of, and General Provisions to,
Relating the Agreement;'' Title II, ``Customs Provisions;''
Title III, ``Relief from Imports;'' and Title IV, ``Temporary
Entry of Business Persons.'' The Committee's consideration of
H.R. 2739 was limited to title IV of the legislation. Title IV
establishes 5,400 annual professional worker visas for
Singaporean citizens to enter the United States on a temporary
basis.
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\1\ Full text of the U.S.-Singapore Free Trade Agreement available
at: .
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H.R. 2739 was considered pursuant to the Bipartisan Trade
Promotion Authority Act of 2002 \2\ and the Trade Act of
1974.\3\ As a result, the legislation was considered on an
expedited basis which did not permit committees of jurisdiction
to amend the legislation after its formal introduction.
However, the Committee made several changes to draft
implementing legislation transmitted to the Committee for a
pre-introduction "mock markup'' on July 10, 2003. These changes
were substantially reflected in H.R. 2739.
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\2\ 19 U.S.C. Sec. 3805 et. seq. (2002).
\3\ 19 U.S.C. Sec. 2191 et. seq. (2003).
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Background and Need for the Legislation
U.S.-SINGAPORE FREE TRADE AGREEMENT
Background
On May 6, 2003, the United States and Singapore entered
into a bilateral FTA, concluding a 14-round negotiation process
that began in December 2000.\4\ Singapore is America's largest
trading partner in Southeast Asia with bilateral trade of $31.0
billion and a U.S. bilateral merchandise trade surplus in 2002
of $1.4 billion. Singapore is the 11th largest export market
for the United States with $16.2 billion in merchandise exports
in 2002. It is the 16th largest source for goods imported into
the United States with $14.8 billion in 2002. The United States
is Singapore's second largest trading partner. The United
States runs surpluses with Singapore in aircraft; electrical
machinery; plastic; mineral fuel; instruments; miscellaneous
chemical products; aluminum; dyes, paints, putty; and iron and
steel products. The U.S. incurs deficits with Singapore in
machinery; organic chemicals; knit apparel; fish and seafood;
woven apparel; and books and newspapers.\5\
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\4\ The full text of the U.S.-Singapore FTA is available at:
.
\5\ See generally, Dick K. Nanto, CRS Report for Congress, The
U.S.-Singapore Free Trade Agreement, June 26, 2003.
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Last month, the U.S. International Trade Commission (ITC)
released the results of its investigation into the probable
economic effects of a U.S.-Singapore FTA. The ITC Report
concluded that the economy-wide effects on U.S. trade,
production, and economic welfare of the FTA tariff reductions
are likely to be negligible to very small. The report explained
that this is not an unexpected finding given the current open
trade relationship between the U.S. and Singapore, the
relatively small trade and bilateral investment flows relative
to U.S. trade and investment worldwide, and Singapore's small
economy relative to that of the United States. At the sectoral
level, the report concluded that some sectors of the U.S.
economy likely would experience increased import competition
from Singapore, while other sectors likely would experience
increased export opportunities in Singapore.
Summary of U.S.-Singapore FTA Provisions Pertaining to the Jurisdiction
of the Committee on the Judiciary
Although the Committee's formal legislative consideration
of H.R. 2739 was limited to title IV of the legislation, which
implemented changes to United States immigration law, the U.S.-
Singapore FTA also contained intellectual property and
competition chapters that fall within the jurisdiction of the
Committee.
Intellectual Property Rights (IPR)
Chapter 16 of the U.S.-Singapore FTA contains several
provisions which enhance protections for IPR. The FTA requires
Singapore to more aggressively enforce laws prohibiting piracy
of intellectual property and establishes that non-
discrimination obligations apply for all types of intellectual
property. The FTA ensures government involvement in resolving
disputes between trademarks and Internet domain names
(important to prevent ``cyber-squatting'' of trademarked domain
names). It also applies the principle of ``first-in-time,
first-in-right'' to trademarks and geographical indicators
(place-names) applied to products.
The Agreement streamlines the trademark filing process by
allowing applicants to use their own national patent/trademark
offices for filing trademark applications. The FTA ensures that
only authors, composers, and other copyright owners have the
right the make their works available online. Copyright owners
maintain rights to temporary copies of their works on
computers. (This was aimed at protecting music, videos,
software, or text from widespread unauthorized sharing via the
Internet). Copyrighted works and phonograms are protected for
extended terms, consistent with U.S. standards and
international trends. The FTA also contains anti-circumvention
provisions aimed at preventing the tampering with technologies
(such as embedded codes on discs) that are designed to prevent
piracy and unauthorized distribution over the Internet. It also
ensures that governments use only legitimate computer software
(in order to set a positive example for private users).
Singapore is to prohibit the production of optical discs (CDs,
DVDs or software) without a source identification code unless
authorized by the copyright holder in writing.
Under the FTA, protection for encrypted program-carrying
satellite signals extends to the signals themselves as well as
the programming. This is designed to prevent piracy of
satellite television programming. Both sides agreed to
criminalize unauthorized reception and re-distribution of
satellite signals. The Agreement also contains limited
liability for Internet Service Providers (ISPs)--reflecting the
balance struck in the U.S. Digital Millennium Copyright Act
between legitimate ISP activity and the infringement of
copyrights. In essence, both sides are to provide immunity to
Internet service providers for complying with notification and
take-down procedures when material suspected to be infringing
on copyright is hosted on their servers. The FTA provides for a
patent term to be extended to compensate for up-front
administrative or regulatory delays in granting the original
patent, consistent with U.S. practice. The grounds for revoking
a patent are limited to the same grounds required to originally
refuse a patent.
In addition, the Agreement requires the government of
Singapore to establish criminal penalties for pirated copies
from legitimate products. The Singaporean government guarantees
that it has authority to seize, forfeit, and destroy
counterfeit and pirated goods and the equipment used to produce
them. IPR laws are to be enforced against traded goods,
including transshipments, to deter violators from using U.S. or
Singaporean ports or free-trade zones to traffic in pirated
products. The FTA mandates both statutory and actual damages
under Singaporean law for IPR violations (as a deterrent to
piracy) and provides that monetary damages be awarded even if
actual economic harm (retail value, plus the profits made by
violators) cannot be determined. Singapore is to cooperate in
preventing pirated and counterfeit goods from being imported
into the United States. The FTA sharply restricts Singapore
from using compulsory licenses to copy patented drugs and
establishes barriers to the import of patented drugs sold at
lower prices in third countries.\6\
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\6\ See Id.
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Competition Policy/Antitrust
Chapter 12 of the U.S.-Singapore FTA commits Singapore to
enact a law regulating anti-competitive business conduct and to
create a competition commission by January 2005. Specific
conduct guarantees are imposed to ensure that commercial
enterprises in which the Singapore government has effective
influence will operate on the basis of commercial
considerations and that such enterprises will not discriminate
in their treatment of U.S. firms. Singapore thus commits to
maintain its existing policy of not interfering with the
commercial decisions of Government Linked Companies (GLCs) and
to provide annual information on GLCs with substantial revenues
or assets. This requirement is particularly important because
GLCs comprise a relatively large part (nearly 40 percent) of
Singapore's economy. A summary of provisions related to
competition and antitrust contained in the U.S.-Singapore FTA
is set forth below.
Chapter 12 of the Agreement helps ensure that the
opportunities created by trade liberalization are supported by
healthy competitive domestic markets, allowing the firms of
each country to compete freely and unhampered by
anticompetitive business conduct in either country's territory.
Firms that are subject to antitrust enforcement action will be
guaranteed basic procedural safeguards. Since these protections
already exist in the United States, no changes to United States
law are necessary. While state monopolies and state enterprises
do not account for a significant portion of either country's
economy, the provisions governing these entities will help
eliminate the potential for either party to favor domestic
firms in the sale or purchase of goods and services.
Specifically, Chapter 12 ensures that both countries:
LEnforce domestic antitrust law that prohibits
anticompetitive business conduct;
LCooperate in the enforcement of antitrust
law;
LEnsure that any private or public monopolies
designated by either country, and any state
enterprises, be subject to disciplinary action for
abusing their status or otherwise discriminating in a
manner that harms the interests of the other country.
LExplicitly recognize that anticompetitive
conduct threatens the free flow of bilateral trade and
investment, and seeks to secure the benefits of the FTA
by prohibiting such conduct, encouraging economically
sound competition policies, and furthering transparency
and cooperation;
LExpand previous competition provisions by
affirming that antitrust laws be enforced in a neutral
manner that does discriminate on the basis of
nationality;
LEnsure basic procedural rights for firms that
are subject to antitrust enforcement actions: each
country will provide a right to be heard and to present
evidence before imposing a sanction or remedy;
LProvide for consultations and further
transparency by allowing either country to request from
the other specific public information regarding
antitrust enforcement activity, official monopolies and
state enterprises, and any exemptions from their
antitrust laws.
Finally, it is important to note that the provisions
regarding antitrust law and enforcement are not subject to
dispute settlement under the Agreement.
Temporary Entry
Title IV of the U.S.-Singapore Free Trade Agreement draft
implementing legislation forwarded to the Committee by the
Administration for its July 10, 2003 ``mock markup'' reflected
U.S. commitments under Chapter 14 of the U.S.-Singapore FTA
pertaining to the temporary entry of business persons. However,
this draft legislation was considerably amended during the
Committee's ``mock markup'' on July 10, 2003. These Committee
recommendations were subsequently incorporated into the
introduced version of H.R. 2739. These changes are highlighted
in the `Pre-Introduction `Mock Markup' of U.S.-Singapore FTA
Implementing Legislation and Committee Amendments Incorporated
Into H.R. 2739'' section of this report.
In general, Chapter 14 is consistent with existing
provisions of the Immigration and Nationality Act (``INA'').
The four categories of persons eligible for admission under the
Agreement's expedited procedures correspond to existing INA
nonimmigrant and related classifications.
To provide for the admission of the first two categories,
business visitors and intra-company transferees, no changes in
U.S. statutes are required. Limited technical changes are
needed to provide for the admission of traders and investors
and professionals. Legislation is also required to implement
article 14.3(2) of the Agreement regarding labor disputes.
Traders and Investors
Under Section B of Annex 14.3 of the Agreement, citizens of
Singapore are eligible for temporary entry as traders and
investors. This category provides for admission under
requirements identical to those governing admission under INA
Sec. 101(a)(15)(E) (8 U.S.C. Sec. 1101(a)(15)(E)), which
permits entry for persons to carry on substantial trade in
goods or services or to develop and direct investment
operations.
Section 101(a)(15)(E) currently conditions admission into
the United States upon authorization pursuant to a treaty of
commerce and navigation. Since the Agreement is not a treaty of
commerce and navigation, and no such treaty exists between the
United States and Singapore, legislation is necessary to accord
treaty trader and investor status to Singaporean citizens
qualifying for entry under Section B.
Section 401 of the draft legislation would not have amended
section 101(a)(15)(E). Instead, it relied on a mechanism
similar to that provided in Sec. 341(a) of the North American
Free Trade Agreement Implementation Act, which in turn was
based upon the Act of June 18, 1954 (68 Stat. 264, 8 U.S.C.
Sec. 1184(a)). The Act of June 18, 1954 conferred treaty trader
and investor status upon nationals of the Philippines on a
reciprocal basis secured by an agreement entered into by the
President of the United States and the President of the
Philippines.
Professionals
Section 402(a) of the draft bill would have amended
Sec. 101(a)(15) of the INA (8 U.S.C. Sec. 1101(a)(15)), which
defines categories of persons entitled to enter the United
States as nonimmigrants. Section 402(a) of the draft bill would
have inserted a new subparagraph (W) at the end of INA
Sec. 101(a)(15). Subparagraph (W) would have established a new
category of aliens entitled to enter the United States
temporarily as nonimmigrants. These aliens would have been
citizens of countries with which the United States has entered
into free trade agreements and who sought to come to the United
States temporarily to engage in business activities at the
professional level. Entry into the United States under
subparagraph (W) would have been subject to regulations issued
by the Secretary of Homeland Security implementing numerical
limitations provided for in the applicable agreement, as set
forth in new paragraph (8) of INA Sec. 214(g), as added by the
bill. The Department of Labor would have issued regulations
governing temporary entry of professionals under this proposed
provision of law. This amendment to the INA would have
implemented Section D of Annex 14.3 of the Agreement.
New INA Sec. 101(a)(15)(W) also would have provided for the
entry of spouses and children accompanying or following to join
business persons entering under this category. The purpose of
this provision was to grant express authorization for current
Immigration and Naturalization Service practice, which is to
admit such persons, but not allow them to be employed in the
United States unless they independently met all applicable INA
requirements.
Persons seeking temporary entry into the United States
under Sec. 101(a)(15)(W) would have been:
Lconsidered to be seeking nonimmigrant status;
Lsubject to general requirements relating to
admission of nonimmigrants, including those pertaining
to the issuance of entry documents and the presumption
set out in INA Sec. 214(b) (8 U.S.C. Sec. 1184(b)); and
Laccorded nonimmigrant status on admission.
It should be noted that while there are many similarities
in the way professionals would have been treated under
Sec. 101(a)(15)(W) of the INA, as proposed by the draft bill
and the way H-IB professionals are treated, a determination of
admissibility under subparagraph (W) would have neither
foreclosed nor established eligibility for entry as an H-1B
professional. Further, Sec. 101(a)(15)(W) would not have
authorized a professional to establish a business or practice
in the United States in which the professional will be self-
employed.
Numerical Limitations
Paragraph six of Section D of Annex 14.3 of the Agreement
permits the United States to establish an annual numerical
limit on temporary entries under the Agreement of Singaporean
professionals. Under the proposed new paragraph (8) of INA
Sec. 214(g), that would have been added by Sec. 402(a) of the
bill, the Secretary of Homeland Security will issue regulations
establishing an annual limit of up to 5,400 new temporary entry
applications from Singaporean professionals, as provided in
Appendix 14.3(D)(6) of the Agreement.
Labor Attestations
Under Sec. (D)(5) of Annex 14.3 of the Agreement, the
United States may require that an attestation of compliance
with labor and immigration laws be made a condition for the
temporary entry of Singaporean professionals. This provision
allows U.S. labor and immigration officials to ensure that U.S.
employers are not hiring Singaporean professionals as a way to
put pressure on U.S. employees to accept lower wages or less
favorable terms and conditions of employment.
Section 402(b) of the draft legislation would have
implemented the attestation requirement under the Agreement.
Section 402(b) of the draft bill would have amended Sec. 212 of
the INA (8 U.S.C. Sec. 1182) by adding a new subsection (s) to
the end of that section. INA Sec. 212(s)(1), which would have
been added by Sec. 402(b) of the bill, required a U.S. employer
seeking a temporary entry visa for a Singaporean professional
to file an attestation with the Secretary of Labor. The
attestation would have consisted of four core elements similar
to those required for attestations under the ``H-1B'' visa
program. See 8 U.S.C. Sec. 1182(n)(1)(A)-(C). Thus, an employer
would have attested that:
LIt would pay the employee the higher of: (a)
the actual wage paid to all other individuals with
similar experience and qualifications for the specific
employment in question, or (b) the prevailing wage
level for the occupational classification in the area
of employment;
LIt would provide working conditions for the
employee that would not adversely affect the working
conditions of workers similarly employed;
LThere was no strike or lockout in the course
of a labor dispute in the occupational classification
at the place of employment;
LThe employer had provided notice of its
attestation to its employees' bargaining representative
in the occupational classification in the area for
which the employee was sought or, absent such a
representative, has otherwise notified its employees.
The remainder of the proposed new INA Sec. 212(s) contained
provisions for enforcing the labor attestation requirement.
Like the contents of the attestation itself, the enforcement
requirements were based on requirements under the ``H-1B'' visa
program. INA Sec. 212(s)(2)(A) required an employer to make
copies of labor attestations (and such accompanying documents
as are necessary) available for public examination at the
employer's principal place of business or worksite. INA
Sec. 212(s)(2)(B) required the Secretary of Labor to compile a
list of all labor attestations filed including, with respect to
each attestation, the wage rate, number of alien professionals
sought for employment, period of intended employment, and date
of need. INA Sec. 212(s)(2)(C) provided that the Secretary of
Labor would accept a labor attestation within 7 days of filing
and issue the certification necessary for an alien to enter the
United States as a nonimmigrant under INA Sec. 101(a)(15)(W),
unless the attestation was incomplete or obviously inaccurate.
INA Sec. 212(s)(3)(A) required the Secretary of Labor to
establish a process for the receipt, investigation, and
disposition of complaints respecting an employer's failure to
meet a condition specified in a labor attestation or an
employer's misrepresentation of material facts in such an
attestation. Section 212(s)(3) also set forth penalties that
may be imposed for violation of the labor attestation
requirements, including monetary fines and denial of
applications for visas under INA section 101(a)(15)(W) for
specified periods. INA Sec. 212(s)(4) defined certain terms
used in INA Sec. 212(s).
Labor Disputes
Article 14.3(2) of the Agreement establishes an important
safeguard for the domestic labor forces of the United States
and Singapore, respectively. It permits either government to
refuse to issue an immigration document authorizing employment
where the temporary entry of a business person might affect
adversely the settlement of a labor dispute or the employment
of a person involved in such dispute. Article 14.3(2) thus
allows the United States to deny temporary entry to a
Singaporean business person whose activities in the United
States require employment authorization if admission might
interfere with an ongoing labor dispute. If the United States
invokes article 14.3(2), it must inform the business person in
writing of the reasons for its action and notify Singapore.
Section 403 of the draft bill implemented article 14.3(2)
of the Agreement by amending INA Sec. 214(j) (8 U.S.C.
Sec. 1184(j)), designating current subsection (j) as paragraph
(1) and inserting a new paragraph (2). New paragraph (2) of INA
Sec. 214(j) provided authority to refuse nonimmigrant
classification under specified circumstances to a Singaporean
business person seeking to enter the United States pursuant to
the Agreement. In particular, nonimmigrant would have been
refused if there was a strike or lockout affecting the relevant
occupational classification at the Singaporean business
person's place of employment or intended place of employment in
the United States, unless that person established, pursuant to
regulations issued by the Secretary of Homeland Security after
consultations with the Secretary of Labor, that the business
person's entry would not have adversely affected the settlement
of the strike or lockout or the employment of any person
involved in the strike or lockout.
New paragraph (2) also required the provision of notice to
the affected Singaporean business persons and to Singapore of a
determination to deny nonimmigrant classification, as required
under article 14.3(3) of the Agreement. INA Sec. 214(j)(2) as
inserted by the draft legislation applies only to requests for
temporary entry by traders and investors, intra-company
transferees, and professionals--i.e., the categories of
nonimmigrants that require employment authorization under U.S.
law (corresponding to Sections B, C, and D of Annex 14.3 of the
Agreement). Employment in the U.S. labor market would not have
been permitted for business visitors, as defined in INA
Sec. 101(a)(15)(B) (8 U.S.C. 1101(a)(15)(B)) (corresponding to
Section A of Annex 14.3 of the Agreement); violations of status
under that provision that involve labor disputes are fully
redressable under existing law.
Section 214(j)(2) would have been similar to existing INA
provisions that prohibit admission in certain circumstances
where interference with a labor dispute may result. For
example, under INA Sec. 212(n)(1)(B) (8 U.S.C.
Sec. 1182(n)(1)(B)), the U.S. employer sponsoring an alien for
admission must certify that there is no strike or lockout in
the occupational classification at the place of employment.
Additionally, Sec. 214(j)(2) would have supplemented INA
Sec. 237(a)(1)(C) (8 U.S.C. 1227(a)(1)(C)) and related INA
provisions that now authorize deportation of an alien admitted
under a particular nonimmigrant category if the alien ceased to
perform the type of work permitted under that category or
misrepresented the nature of the work at the time of admission.
The Department of Labor would have provided strike
certifications to the Department of Homeland Security, as it
has provided them to the Immigration and Naturalization Service
under existing provisions, pursuant to 8 C.F.R. 214.2(h)(17).
Administrative Action
Singapore would have been added to the list of countries,
maintained by the Department of State, whose citizens are
eligible for treaty trader and treaty investor status under INA
Sec. 101(a)(15)(E). With respect to professionals provided for
under Section D of Annex 14.3 of the Agreement, in all cases
where a state license is required to engage in a particular
activity in the United States, such professionals would have
been required to obtain the appropriate state license. Pursuant
to INA Sec. 101(a)(15)(W) as proposed by section 402(a) of the
draft bill, the Secretary of Homeland Security would have
issued regulations implementing the numerical limits set forth
in Appendix 14.3(D)(6) of the Agreement. The Secretary of Labor
would have issued regulations implementing the labor
attestation provisions in new subsection (s) of INA Sec. 212.
The administrative agencies responsible for administering the
other amendments to the INA described above would have
promulgated regulations to implement those amendments.
Pre-Introduction ``Mock Markup'' of U.S.-Singapore FTA Implementing
Legislation and Committee Amendments Incorporated Into H.R.
2739
On July 10, 2003, the Committee held a pre-introduction
``mock markup'' of draft implementing legislation submitted by
the Administration to the Committee. The Committee's
consideration of this draft legislation was limited to title IV
of the draft implementing legislation. During this meeting,
Chairman Sensenbrenner, Ranking Member Conyers, and several
Members of the Committee made it clear that they opposed the
inclusion of immigration provisions in H.R. 2739 and that they
would not support any future FTA that included substantive
changes to United States immigration law.
Judiciary Committee Amendments to Draft Implementing
Legislation
The Committee reported several amendments to the
immigration provisions by voice vote. The amendments were
reflected in H.R. 2739.
First, the Committee reported an amendment by
Representative King to transfer the new ``W'' professional
worker visa category for citizens of Singapore to section
101(a)(15)(H)(i)(b)(1) of the Immigration and Nationality Act,
rather than 101(a)(15)(W) as provided for in the draft
implementing legislation. Representative King's amendment also
ensured that in future years, the national H-1B visa cap will
be reduced in two situations. First, the number of H-1B visas
available in a fiscal year will be reduced by the number of
Singaporean citizens granted extensions of H-1B1 status in that
fiscal year after having previously been granted five or more
consecutive prior extensions. Second, the number of H-1B visas
available in a fiscal year will be reduced by the number of H-
1B1 visas allocated (5,400 for citizens of Singapore). However,
if at the end of a fiscal year, the 6,800 slots reserved for
citizens of Singapore have not been exhausted, the number of H-
1B visas available for that fiscal year will be adjusted
upwards by the number of unused Singapore visas. These newly
available H-1B visas may be issued within the first 45 days of
the next fiscal year to aliens who had applied for such visas
during the fiscal year for which the adjustment was made.
The Committee also reported an amendment offered by
Representatives Berman and Conyers requiring that an
application for every second extension for an H-1B1 visa be
accompanied by a new employer attestation. This will have the
effect of requiring the employer to update the prevailing wage
determination at such time. The amendment also requires that an
employer pay a fee when H-1B1 status is initially granted and
after every second extension of that status. The fee shall be
the same as the fee an employer must pay when petitioning for
an H-1B visa. However, if no fee is being assessed under the H-
1B program, no fee shall be imposed under the H-1B1 program.
Finally, the implementing legislation now clarifies that an
employer generally cannot sponsor an alien for an E, L, or H-
1B1 visa if there is any labor dispute occurring in the
occupational classification at the place of employment,
regardless of whether the labor dispute is classified as a
strike or lockout. In this regard, worker protections in H.R.
2739 are broader than those contained in the H-1B visa
category.
Hearings
No hearings were held on H.R. 2739 before the Committee on
the Judiciary.
Committee Consideration
On July 16, 2003, the Committee met in open session and
ordered favorably reported the bill H.R. 2739 without amendment
by voice vote, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee notes that there
were no recorded votes during the committee consideration of
H.R. 2739.
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2739, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 21, 2003.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2739, a bill to
implement the United States-Singapore Free Trade Agreement.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Annabelle
Bartsch, who can be reached at 226-2680.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2739--A bill to implement the United States-Singapore Free Trade
Agreement.
SUMMARY
H.R. 2739 would approve the free trade agreement (FTA)
between the government of the United States and the government
of Singapore that was entered into on May 6, 2003. It would
provide for tariff reductions and other changes in law related
to implementation of the agreement, such as provisions dealing
with dispute settlement, rules of origin, and safeguard
measures for textile and apparel industries. The bill also
would allow the temporary entry of certain business persons
into the United States.
The Congressional Budget Office estimates that enacting the
bill would reduce revenues by $55 million in 2004, by $410
million over the 2004-2008 period, and by about $1 billion over
the 2004-2013 period, net of income and payroll tax offsets.
The bill would not have a significant effect on direct spending
or spending subject to appropriation. CBO has determined that
H.R. 2739 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of State, local, or tribal
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 2739 is shown in the
following table.
BASIS OF ESTIMATE
Revenues
Under the United States-Singapore agreement, all tariffs on
U.S. imports from Singapore would be phased out over time. The
tariffs would be phased out for individual products at varying
rates according to one of several different timetables ranging
from immediate elimination to partial elimination over 10
years. According to the U.S. International Trade Commission,
the U.S. collected $88 million in customs duties in 2002 on
about $14.1 billion of imports from Singapore. Of the imports,
only $1.3 billion faced non-zero tariff rates. These dutiable
imports from Singapore consist mostly of certain electrical
machinery, knitted or crocheted apparel, mineral fuels and
oils, surgical and precision instruments, and certain nuclear
reactor components. Based on these data, CBO estimates that
phasing out tariff rates as outlined in the U.S.-Singapore
agreement would reduce revenues by $55 million in 2004, by $410
million over the 2004-2008 period, and by about $1 billion over
the 2004-2013 period, net of income and payroll tax offsets.
This estimate includes the effects of increased imports
from Singapore that would result from the reduced prices of
imported products in the United States, reflecting the lower
tariff rates. It is likely that some of the increase in U.S.
imports from Singapore would displace imports from other
countries. In the absence of specific data on the extent of
this substitution effect, CBO assumes that an amount equal to
one-half of the increase in U.S. imports from Singapore would
displace imports from other countries.
Based on current law, H.R. 2739 would not provide for the
assessment of civil monetary penalties on employers for
violations of the labor attestation process with respect to
certain workers from Singapore. However, if H.R. 2738, a bill
to implement the United States-Chile FTA, were to be enacted
prior to this bill, H.R. 2739 would allow the Secretary of
Labor to assess such penalties. CBO expects that any additional
revenues collected as a result would amount to less than
$500,000 in any year.
Direct Spending
Title IV of H.R. 2739 would permit certain traders and
investors from Singapore, and their spouses and children, to
enter the United States as nonimmigrants. The Bureau of
Citizenship and Immigration Services (BCIS) would charge fees
of about $100 to provide nonimmigrant visas, so CBO estimates
that the agency could collect several million dollars annually
in offsetting receipts (a credit against direct spending). The
agency is authorized to spend such fees without further
appropriation, so the net impact on BCIS spending would not be
significant.
However, if H.R. 2738 (a bill to implement the United
States-Chile FTA) were to be enacted prior to this bill, title
IV would establish a new nonimmigrant category for certain
professional workers from Singapore. The legislation would
limit the number of annual entries under this category to
5,400, plus spouses and children. The BCIS would charge fees of
about $100 to provide nonimmigrant visas, so CBO estimates that
the agency would collect less than $3 million annually in
offsetting receipts. Again, the agency is authorized to spend
such fees without further appropriation, so the net impact on
BCIS spending would not be significant.
Under current law, the Department of State also collects
$100 application fee for nonimmigrant visas. These collections
are spent on border security and consular functions. CBO
estimates that the net budgetary impact would be less than
$500,000 a year.
Spending Subject to Appropriation
Title I of H.R. 2739 would authorize the appropriation the
necessary funds for the Department of Commerce to pay the
United States' share of the costs of the dispute settlement
procedures established by the agreement. Based on information
from the agency, CBO estimates that implementing this provision
would cost $100,000 in 2004, and $250,000 in each of the
following years, subject to the availability of appropriated
funds.
Title III would require the International Trade Commission
(ITC) to investigate claims of injury to domestic industries as
a result of the FTA. The ITC would have 120 days to determine
whether a domestic industry has been injured, and if so, would
recommend the necessary amount of import relief. The ITC would
also submit a report on its determination to the President.
According to the ITC, similar FTAs have resulted in only a
handful of cases each year, at an average cost of about
$200,000 per investigation. Based on this information, CBO
estimates the bill would have no significant effect on spending
subject to appropriation.
SUMMARY OF EFFECT ON REVENUES AND DIRECT SPENDING
The overall effects of H.R. 2739 on revenues and direct
spending are shown in the following table.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
The bill contains no intergovernmental or private-sector
mandates as defined in UMRA and would not affect the budgets of
State, local, or tribal governments.
ESTIMATE PREPARED BY:
Federal Revenues: Annabelle Bartsch (226-2680)
Federal Spending:
Dispute Settlements--Melissa Zimmerman (226-2860)
Immigration--Mark Grabowicz (226-2860), Christi Hawley-Sadoti
(226-2820), and Sunita D'Monte (226-2840)
Impact on State, Local, and Tribal Governments: Melissa Merrell
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-0207)
ESTIMATE APPROVED BY:
G. Thomas Woodward
Assistant Director for Tax Analysis
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
H.R. 2739 does not authorize funding. Therefore, clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives is inapplicable.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
The following section-by-section analysis describes the
sections of H.R. 2739 within the rule X jurisdiction of the
Committee on the Judiciary.
TITLE IV. TEMPORARY ENTRY FOR BUSINESS PERSONS
It should be emphasized that all grounds of inadmissibility
found at section 212(a) of the Immigration and Nationality Act
(INA), as the section currently exists or as it may be modified
in the future, shall apply to any applicant for admission
pursuant to title IV.
Sec. 401. Nonimmigrant Traders and Investors.
``E'' nonimmigrant visas are available for treaty traders
and investors. A visa is available to an alien who:
is entitled to enter the United States under and in
pursuance of the provisions of a treaty of commerce and
navigation between the United States and the foreign
state of which he is a national, and the spouse and
children of any such alien if accompanying or following
to join him: i) solely to carry on substantial trade,
including trade in services or trade in technology,
principally between the United States and the foreign
state of which he is a national, or ii) solely to
develop and direct the operations of an enterprise in
which he has invested . . . a substantial amount of
capital[.]
INA section 101(a)(15)(E).
Section 401 of the bill provides that nationals of
Singapore (along with spouses and children, if accompanying or
following to join), may, if otherwise eligible for a visa and
admissible into the U.S., be considered to be classifiable as
``E'' nonimmigrants if entering solely for a purpose specified
in clause (i) or (ii) of INA section 101(a)(15)(E). H.R. 2739
contains a similar provision for nationals of Singapore.
Sec. 402. Nonimmigrant Professionals.
Section 402 of the bill makes nationals of Singapore
eligible for the the ``H-1B1 nonimmigrant visa program created
by H.R. 2738 to implement the U.S.-Chile Free Trade Agreement.
The total number of approvals of initial applications for
admission by Singaporeans is 5,400 in any fiscal year.
For a description of the H-1B1 visa program, see the
accompanying Judiciary Committee Report for H.R. 2738.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 13031 OF THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF
1985
SEC. 13031. FEES FOR CERTAIN CUSTOMS SERVICES.
(a) * * *
(b) Limitations on Fees.--(1) * * *
* * * * * * *
(13) No fee may be charged under subsection (a) (9)
or (10) with respect to goods that qualify as
originating goods under section 202 of the United
States-Singapore Free Trade Agreement Implementation
Act. Any service for which an exemption from such fee
is provided by reason of this paragraph may not be
funded with money contained in the Customs User Fee
Account.
* * * * * * *
----------
SECTION 592 OF THE TARIFF ACT OF 1930
SEC. 592. PENALTIES FOR FRAUD, GROSS NEGLIGENCE, AND NEGLIGENCE.
(a) * * *
* * * * * * *
(c) Maximum Penalties.--
(1) * * *
* * * * * * *
(7) Prior disclosure regarding claims under the
united states-singapore free trade agreement.--
(A) An importer shall not be subject to
penalties under subsection (a) for making an
incorrect claim that a good qualifies as an
originating good under section 202 of the
United States-Singapore Free Trade Agreement
Implementation Act if the importer, in
accordance with regulations issued by the
Secretary of the Treasury, voluntarily and
promptly makes a corrected declaration and pays
any duties owing.
(B) In the regulations referred to in
subparagraph (A), the Secretary of the Treasury
is authorized to prescribe time periods for
making a corrected declaration and paying
duties owing under subparagraph (A), if such
periods are not shorter than 1 year following
the date on which the importer makes the
incorrect claim that a good qualifies as an
originating good.
* * * * * * *
----------
SECTION 202 OF THE TRADE ACT OF 1974
SEC. 202. INVESTIGATIONS, DETERMINATIONS, AND RECOMMENDATIONS BY
COMMISSION.
(a) Petitions and Adjustment Plans.--
(1) * * *
* * * * * * *
(8) The procedures concerning the release of
confidential business information set forth in section
332(g) of the Tariff Act of 1930 shall apply with
respect to information received by the Commission in
the course of investigations conducted under this
chapter, part 1 of title III of the North American Free
Trade Agreement Implementation Act, [and] title II of
the United States-Jordan Free Trade Area Implementation
Act, and title III of the United States-Singapore Free
Trade Agreement Implementation Act. The Commission may
request that parties providing confidential business
information furnish nonconfidential summaries thereof
or, if such parties indicate that the information in
the submission cannot be summarized, the reasons why a
summary cannot be provided. If the Commission finds
that a request for confidentiality is not warranted and
if the party concerned is either unwilling to make the
information public or to authorize its disclosure in
generalized or summarized form, the Commission may
disregard the submission.
* * * * * * *
SECTION 214 OF THE IMMIGRATION AND NATIONALITY ACT
admission of nonimmigrants
Sec. 214. (a) * * *
(g)(1) * * *
* * * * * * *
[The purported changes made to paragraph (8) of section 214(g) by this
bill are shown below. Section 402(a)(2)(B) of H.R. 2738 inserts at the
end of subsection (g) a new paragraph (8), which is presumed to take
effect prior to the execution of these amendments.]
[(8)(A) The agreement referred to in section
101(a)(15)(H)(i)(b1) is the United States-Chile Free Trade
Agreement.]
(8)(A) The agreements referred to in section
101(a)(15)(H)(i)(b1) are--
(i) the United States-Chile Free Trade Agreement;
and
(ii) the United States-Singapore Free Trade
Agreement.
(B)(i) * * *
[(ii) The annual numerical limitations described in clause
(i) shall not exceed 1,400 for nationals of Chile for any
fiscal year. For purposes of this clause, the term ``national''
has the meaning given such term in article 14.9 of the United
States-Chile Free Trade Agreement.]
(ii) The annual numerical limitations described in clause
(i) shall not exceed--
(I) 1,400 for nationals of Chile (as defined in
article 14.9 of the United States-Chile Free Trade
Agreement) for any fiscal year; and
(II) 5,400 for nationals of Singapore (as defined
in Annex 1A of the United States-Singapore Free Trade
Agreement) for any fiscal year.
* * * * * * *
Agency Correspondence
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JULY 16, 2003
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr., [Chairman of the Committee] presiding.
[Intervening business.]
Chairman Sensenbrenner. Pursuant to notice, I now call up
H.R. 2739, the implementing legislation for the U.S.-Singapore
Free Trade Agreement and move its favorable recommendation to
the House.
The same explanation that I have previously given with
respect to the Chile legislation applies to the Singapore
legislation, and again only the immigration provisions of the
agreement require implementing legislation.
Without objection, H.R. 2739 will be considered as read.
[The bill, H.R. 2739, follows:]
Chairman Sensenbrenner. Without objection, the transcript
of the mock markup held on this legislation last week will be
inserted into the record following opening statements.
And I will not use any additional time to repeat myself.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress From the State of Wisconsin
H.R. 2738, the ``U.S.-Chile Free Trade Agreement Implementation
Act,'' and H.R. 2739, the ``U.S.-Singapore Free Trade Agreement
Implementation Act'' were referred to the Judiciary Committee for
consideration of provisions that fall within the Committee's
jurisdiction.
As we were all reminded last week, Trade Promotion Authority (TPA)
requires the Administration to actively consult with Congress when
initiating, negotiating, and implementing trade agreements. TPA also
provides that legislation to implement free trade agreements may not be
amended by committees of jurisdiction and may only receive an up or
down vote on the floor of the House.
The U.S.-Chile and U.S.-Singapore Free Trade Agreements contain
several issues within the purview of this Committee. Both agreements
contain competition clauses that ensure antitrust laws are applied in a
neutral, transparent, nondiscriminatory manner while safeguarding basic
procedural rights. The agreements also contain robust intellectual
property protections, requiring the governments of Chile and Singapore
to take affirmative steps to eradicate the piracy of trademarks,
patents, satellite television signals, and other forms of intellectual
property.
While the antitrust and intellectual property provisions within
these agreements are critical, they do not require any substantive
changes to U.S. law. As a result, our consideration of H.R. 2738 and
H.R. 2739 must be confined to Title IV of each bill, which pertains to
``Temporary Entry of Business Persons.''
I have long expressed concern about substantive changes to U.S. law
contained in free trade agreements. Before passage of Trade Promotion
Authority, immigration provisions were included in earlier free trade
agreements such as NAFTA, without any consultation with this Committee.
This practice unfortunately created precedent for subsequent trade
agreements, such as those we consider today, and immigration provisions
were included in the Chile and Singapore Free Trade Agreements before
passage of TPA last year.
At last week's mock markup, Members of this Committee spoke with a
united bipartisan voice that immigration provisions in future free
trade agreements will not receive the support of this Committee. In
addition, the implementing legislation we consider today contains a
number of modifications recommended by the Committee at last week's
mock markup.
While the draft implementing legislation created a separate visa
category for skilled workers from Chile and Singapore, the bills we
consider today amend the Immigration and Nationality Act to ensure that
these visas--6,800 in total--are deducted from the national H-1B cap
when they are issued or when a Chilean or Singaporean citizen is
granted an extension after five or more consecutive prior extensions.
In addition, the implementing legislation now provides that after
every second extension of H-1B1 status for a citizen of Chile or
Singapore, an application for a further extension must be accompanied
by a new employer attestation. This will have the effect of requiring
the employer to update the prevailing wage determination at such time.
Moreover, the legislation provides that an employer will have to
pay a fee in order for an alien to be initially granted H-1B1 status
and after every second extension of that status. The fee shall be the
same as the fee an employer must pay when petitioning for an H-1B visa.
However, if no fee is being assessed under the H-1B program, no fee
shall be imposed under the H-1B1 program.
Finally, the legislation now clarifies that an employer generally
cannot sponsor an alien for an E, L, or H-1B1 visa if there is any
labor dispute occurring in the occupational classification at the place
of employment, regardless of whether the labor dispute is classified as
a strike or lockout. In this regard, the implementing language provides
greater worker protections than those contained in the current H-1B
program.
The legislation we consider today is a considerable improvement
over the draft implementing legislation we considered last week. The
Committee's bipartisan commitment to ensuring that our recommendations
were incorporated into these bills reaffirms the constitutional
prerogative of Congress and this Committee's commitment to ensuring
that future free trade agreements are not used to substantively alter
United States immigration law. It is my hope and expectation that our
actions over the last week will not go unnoticed by this and future
Administrations.
These implementing bills as the result of extensive negotiation and
cooperation between the USTR and Members of this Committee, both
majority and minority. They represent true bipartisan compromise.
Several concerns of the minority were addressed and are represented in
the legislation before us. In recognition of the diligent work by the
Committee and the USTR to improve the implementing legislation, and in
light of the fact that our limited jurisdictional referral requires the
Committee to consider only provisions within our jurisdiction, I would
urge all members who support our work on the immigration sections in
Title IV of both bills to support reporting this legislation today. For
members who do not support portions of the implementing legislation
outside of this Committee's jurisdiction or the underlying trade
agreements themselves, I encourage you to vote to report the
legislation and then submit supplemental views to the committee report
outlining your position on the broader implementing legislation.
I now recognize the Ranking Member for his remarks.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
I have serious reservations about the actions the U.S. Trade
Representative (USTR) has taken with respect to the temporary entry
provisions in the Chile and Singapore Free Trade Agreements. In my
opinion, they have overstepped their bounds and usurped this
Committee's jurisdiction. The negotiating objectives that Congress laid
out for USTR in the Trade Act of 2002 (TPA) do not include even one
word on temporary entry. There is no specific authority in TPA to
negotiate new visa categories or impose new requirements on our
temporary entry system, yet that is exactly what USTR has done in the
Chile and Singapore FTAs.
The Singapore and Chile FTAs create a new visa classification for
the temporary admission of nonimmigrant professionals that is similar
in many respects to the existing H-1B nonimmigrant classification. The
new nonimmigrant visa classification, however, would differ from the
existing H-1B program in significant ways.
Both agreements include caps on the number of professionals that
can be granted entry each year (1,400 for Chile and 5,400 for
Singapore).
The provisions for the new nonimmigrant visa permit an unlimited
number of extensions in 1-year increments. This makes it possible to
transform a temporary entry program into a permanent program. In
effect, employers would have the power to keep permanent workers in a
temporary legal status. In contrast, under the H-1B program, workers
are granted a three-year visa that can be renewed only once.
The Labor Certification Attestation (LCA) is one of the few
safeguards we have in our H-1B system for ensuring that employers do
not abuse temporary workers to undermine the domestic labor market. The
implementing legislation contains some, but not all, of the LCA
requirements that apply in our H-1B programs.
The implementing legislation completely omits the category of H-1B
dependent employers and the additional LCA requirements that apply to
them. H-1B dependent employers are required to attest that new entrants
will not displace U.S. workers and demonstrate that they have tried to
recruit U.S. workers. The implementing legislation should have a
similar provision.
In addition, the H-1B program authorizes the Secretary of Labor to
initiate her own investigations and enforcement proceedings based on
credible information that an employer is violating the rules of the H-
1B program. No such authority is granted in the administration of the
Chile and Singapore visa programs.
The Singapore and Chile FTAs require permanent changes to our
immigration system, but for now these changes are limited to two
countries. Unfortunately, we may see these programs expanded to dozens
of additional countries in future free trade agreements. The
administration is currently negotiating additional FTAs with Australia,
Morocco, five countries in Southern Africa, five countries in Central
America, and the 34 countries of the Western Hemisphere.
Immigration policy is a sensitive, political matter. Changes in
immigration policy have traditionally been the result of intense, open
negotiations between workers, employers, immigration advocates, and
Members of Congress. These issues simply do not belong in fast-tracked
trade agreements negotiated by executive agencies.
Chairman Sensenbrenner. Are there further opening
statements?
If not, without objection, the previous question is ordered
on reporting the bill because a reporting quorum is not
present.
[Intervening business.]
A reporting quorum being present, the unfinished business
is the question on the motion to report favorably the bill H.R.
2739, upon which the previous question was ordered.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it, the ayes have it, the motion to
report favorably is agreed to and all Members will be given 2
days, as provided by House rules, in which to submit additional
dissenting supplemental or minority views.
Mock Markup Transcript
BUSINESS MEETING
THURSDAY, JULY 10, 2003
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:49 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr., [Chairman of the Committee] presiding.
[Intervening business.]
Chairman Sensenbrenner. The next item on the agenda is the
consideration of the draft implementing legislation for the
U.S.-Singapore Free Trade Agreement, and without objection, the
draft implementing legislation will be considered as read and
open for amendment at any point.
[The legislation follows:]
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King,
has to offer his amendment as amended by Mr. Conyers and Mr.
Berman's amendment as modified. Do you do so?
Mr. King. Mr. Chairman, I do so. I'm not aware that that
amendment is printed and ready to be presented to the
Committee. I could speak to the issue.
Chairman Sensenbrenner. It's the same amendment.
[The amendments follows:]
Chairman Sensenbrenner. Without objection, the King
amendment as amended by Berman-Conyers modified is agreed to.
Are there further amendments?
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. I ask unanimous consent--we just discovered--
to make this----
Chairman Sensenbrenner. Hold on. Are there further
amendments? If not, the question is on agreeing to the draft
implementing legislation as amended by the King amendment.
Those in favor will say aye? Opposed, no?
The ayes appear to have it. The ayes have it, and the draft
implementing legislation as amended is agreed to.
Without objection, the staff is permitted to make technical
and conforming changes.
The Chair would like to thank all Members for their
cooperation on this. I believe we accomplished something that
is in the public interest during today's session, and the
Committee is adjourned.
[Whereupon, at 12:08 p.m., the Committee was adjourned.]
Minority Views
We write these views to explain that, as a general
proposition we oppose efforts by the Administration to distort
our immigration laws by offering new visa categories to
specific nations as a bargaining chip in trade negotiations.
This should not have been done as part of the North American
Free Trade Agreement and it should not have been done as part
of the Singapore Free Trade Agreement.
We would note that Article I, section 8, clause 4 of the
Constitution provides that Congress shall have the power to
``establish an uniform Rule of Naturalization.'' The Supreme
Court has long found that this provision of the Constitution
grants Congress plenary power over immigration policy.\1\
Moreover, the Court has found that ``the formulation of
policies [pertaining to the entry of aliens and their right to
remain here] is entrusted exclusively to Congress has become
firmly imbedded in the legislative and judicial tissues of our
body politics as any aspect of our government.'' \2\
Nonetheless the Administration has negotiated a new visa
program in the U.S.-Singapore FTA; usurping Congress' clear
constitutional role in creating immigration law.
---------------------------------------------------------------------------
\1\ See: Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) and
Boutilier v. INS, 387 U.S. 118, 123 (1967)
\2\ Galvan v. Press, 347 U.S. 522,531(1954)
---------------------------------------------------------------------------
Having stated that, we do appreciate the efforts of the
Majority to work with us in improving the implementing language
with regard to immigration as best we could, given the
unfortunate constraints of the underlying agreement. For
example, the initial draft of the legislation we received
contained several major loopholes and flaws. It would have
created 5,400 new visas for persons to come into this country
from Singapore. There was no requirement that employers pay any
fees when such temporary workers were brought in. There was no
requirement that employers certify that they were unable to
find American workers before they hired these foreign workers.
And there was no real limitation on the ability of these
individuals to stay in this country indefinitely.
Many of these problems were mitigated as a result of this
Committee's input in the process. We enacted language which
would insure that several H-1b requirements apply to these new
visas.\3\ We also enacted a requirement that the new visas not
go beyond the current H-1b limits.
---------------------------------------------------------------------------
\3\ Although the amount of the fee was specified, the implementing
legislation fails to include the requirement in INA section
212(n)(2)(C)(vi)(II) that forbids the employer from requiring the
employee to pay the fee.
---------------------------------------------------------------------------
We would note that we have a significant remaining concern
that the Administration was unwilling to include in the text of
the implementing legislation. First and foremost, the Singapore
implementing bill provides no overall limitation on how many
times professional visas can be renewed. While the implementing
language included the Conyers/Berman language insuring that
renewals beyond 6 years count against the overall H-1b cap, it
does not include language present in the current H-1b
provisions that limits authorized admission to 6 years. Thus,
it is possible that employers could renew their employees'
visas each and every year under the Singapore agreement, with
no limits, while also bringing in new entrants to fill up the
annual numerical limit for new visas. This would rob the
program of its supposedly temporary nature and harm American
workers.
In addition we are concerned that the implementing
legislation does not contain all of the Labor Condition
Application requirements that apply in the current H-1b
programs. Most importantly, the implementing legislation
completely omits the category of H-1b dependent employers
present in existing law that requires employers to demonstrate
that they have tried to recruit U.S. workers and attest that
new entrants will not displace U.S. workers.\4\ In addition,
the implementing legislation does not grant the authority given
to Secretary of Labor in the H-1b to initiate her own
investigations based on credible information that the employer
is violating the rules of employment of the H-1b program. USTR
has argued that these provisions expire in October 1, 2003 and
that should Congress extend or modify provisions of the H-1b
program, it may make corresponding modifications to the
amendments to the INA made by the implementing bill. However,
omission of these important worker protections sets a dangerous
precedent for inclusion in future agreements.
---------------------------------------------------------------------------
\4\ The implementing language also omits H-1b dependent requirement
in 212(n)(2)(E) that the H-1b dependent employer not place the H-1b
worker with a third employer that is displacing U.S. workers.
---------------------------------------------------------------------------
Finally, we strongly object to any notion that the U.S.-
Singapore Free Trade Agreement will be used as a model for
future FTAs. We have been informed by the Majority that the
Administration will not seek immigration in future possible
free trade agreements, such as the Central American Free Trade
Agreement, and this is spelled out in the letter from Chairman
Sensenbrenner and Ranking Member Conyers to Ambassador
Zoellick. It is critical that the administration interpret the
inherent problems in the new visa program not as a precedent
for future agreements, but rather as a sign that immigration
has no place in trade agreements.
John Conyers, Jr.
Jerrold Nadler.
Robert C. Scott.
Sheila Jackson Lee.
Martin T. Meehan.
William D. Delahunt.
Tammy Baldwin.
Linda T. Sanchez.