IMMIGRATION ACT OF 1989(PART 2)

HEARINGSBEFORE THE

SUBCOMMITTEE ON IMMIGRATION, REFUGEES,AND INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARYHOUSE OF REPRESENTATIVES

ONE HUNDRED FIRST CONGRESS

SECOND SESSION

ON

S. 358, H.R. 672, H.R. 2448, and H.R. 2646

IMMIGRATION ACT OF 1989

FEBRUARY 21, 1990

Serial No. 21

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON ":199027-565 *-;

For sale by the Superintendent of Documents, Congressional Sales OfficeU.S. Government Printing Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY

JACK BROOKS, Texas, ChairmanROBERT W. KASTENMEIER, WisconsinDON EDWARDS, CaliforniaJOHN CONYERS, JR., MichiganROMANO L. MAZZOLI, KentuckyWILLIAM J. HUGHES, New JerseyMIKE SYNAR, OklahomaPATRICIA SCHROEDER, ColoradoDAN GLICKMAN, KansasBARNEY FRANK, MassachusettsGEO. W. CROCKETT, JR., MichiganCHARLES E. SCHUMER, New YorkBRUCE A. MORRISON, ConnecticutEDWARD F. FEIGHAN, OhioLAWRENCE J. SMITH, FloridaHOWARD L. BERMAN, CaliforniaRICK BOUCHER, VirginiaHARLEY 0. STAGGERS, JR., West VirginiaJOHN BRYANT, TexasGEORGE E. SANGMEISTER, IllinoisMEL LEVINE, California

HAMILTON FISH, JR., New YorkCARLOS J. MOORHEAD, CaliforniaHENRY J. HYDE, IllinoisF. JAMES SENSENBRENNER, JR.,

WisconsinBILL McCOLLUM, FloridaGEORGE W. GEKAS, PennsylvaniaMICHAEL DEWINE, OhioWILLIAM E. DANNEMEYER, CaliforniaHOWARD COBLE, North CarolinaD. FRENCH SLAUGHTER, JR., VirginiaLAMAR S. SMITH, TexasCHUCK DOUGLAS, New HampshireCRAIG T. JAMES, FloridaTOM CAMPBELL, California

WILLIAM M. JONES, General CounselROBERT H1. BRINK, Deputv General Counsel

ALAN F. COFFEY, JR., Minority Chief Counsel

SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW

BRUCE A. MORRISON, Connecticut, ChairmanBARNEY FRANK, MassachusettsCHARLES E. SCHUMER, New YorkHOWARD L. BERMAN, CaliforniaJOHN BRYANT, TexasROMANO L. MAZZOLI, Kentucky

LAMAR S. SMITH, TexasBILL McCOLLUM, FloridaD. FRENCH SLAUGHTER JR., VirginiaHAMILTON FISH, JR., New York

EUGENE PUGLIESE, CounselNORA ENGEL, Assistant Counsel

BERNADETrE MAGUIRE, Legislative AssistantCORDIA STROM, Minority Counsel --

(I1)

CONTENTS

HEARING DATE

PageF eb ru a ry 2 1, 1990 ............................................................................................................. 1

OPENING STATEMENT

Morrison, Hon. Bruce A., a Representative in Congress from the State ofConnecticut, and chairman, Subcommittee on Immigration, Refugees, andIn tern ation al L aw ....................................................................................................... . 1

WITNESSES

Lyman, Princeton N., Director, Bureau for Refugee Programs, Department ofState, accompanied by Jerome Ogden, Deputy Assistant Secretary for VisaServices ..................................................... 19

McNary, Gene, Commissioner, Immigration and Naturalization Service, De-partment of Justice, accompanied by Bill Cook, General Counsel ..................... 30

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS

Lyman, Princeton N., Director, Bureau for Refugee Programs, Department ofState: P repared statem ent .......................................................................................... 22

McNary, Gene, Commissioner, Immigration and Naturalization Service, De-partm ent of Justice: Prepared statem ent ................................................................ 33

Morrison, Hon. Bruce A., a Representative in Congress from the Ste;e ofConnecticut, and chairman, Subcommittee on Immigration, Refugees, andInternational Law: February 21, 1990, news release and section-by-sectionanalysis of proposed bill ............................................................................................. 2

(III)

IMMIGRATION ACT OF 1989(Part 2)

WEDNESDAY, FEBRUARY 21, 1990

House OF REPRESENTATIVES,SUBCOMMITTEE ON IMMIGRATION, REFUGEES,

AND INTERNATIONAL LAW,COMMITTEE ON THE JUDICIARY,

Washington, DC.The subcommittee met, pursuant to notice, at 10:10 a.m., in room

2237, Rayburn House Office Building, Hon. Bruce A. Morrison(chairman of the subcommittee) presiding.

Present: Representatives Bruce A. Morrison, Charles E.Schumer, Howard L. Berman, John Bryant, Lamar S. Smith, andBill McCollum.

Also present: Eugene Pugliese, counsel; Bernadette Maguire, leg-islative assistant; and Cordia Strom, minority counsel.

OPENING STATEMENT OF CHAIRMAN MORRISONMr. MORRISON. I would like to call this hearing to order. Today

we will continue with the hearings of this subcommittee on thesubject of legal immigration reform. We have pending before thesubcommittee a number of pieces of legislation, including two bills,one authored by Mr. Schumer and one by myself, that are in draftform and that have been made available to our witnesses, as wellas the Senate-passed bill and legislation authored by Mr. Fish andMr. Berman, also members of this subcommittee. In addition tothat, the legislation dealing with special immigrant numbers au-thored by the ranking Republican member, Mr. Smith, is also no-ticed for consideration at these hearings. We will be pleased to re-ceive the testimony of our witnesses today with respect to each andany of those provisions.

[The bills, S. 358, H.R. 672, H.R. 2448, and H.R. 2646, are in part1 of the hearings.]

[Chairman. Morrison's news release and section-by-section analy-sis for his proposed bill follow:]

(1)

2

CHAIRMAN MORRISON'S FEBRUARY 21, 1990, NEWS RELEASE AND SECTION-BY-SECTIONANALYSIS OF PROPOSED BILL

Washington -- Congressman Bruce A. Morrison (D-Ct., 3rd), Chairman

of the House Judiciary Subcommittee on Immigration, Refugees, and

International Law, today outlined his major proposal for legal

immigration reforms, the Family Unity and Employment Opportunity

Immigration Act of 1990.

"We need to change the way the United States deals with

immigration," Morrison said. "My proposal is a comprehensive

package of immigration reforms, which will unify families, identify

labor needs, and raise Levenues to educate and train U.S. workers

for the jobs of the future. The Morrison bill is intended to

provide a blueprint for reforming our legal immigration system in a

way that recognizes the labor implications of increasing

immigration. Like a blueprint, the Morrison bill begins with a

sound foundation in resolving outstanding immigration issues while

including detailed plans to manage our future needs."

"The Morrison bill will reform the current family preference system

by expanding the category of immediate relatives, and it will

benefit many of those affected countries and groups currently

excluded by our immigration laws, including the Irish. Eastern

3

Europeans and Africans," Morrison said. "We have not reformed our

legal immigration system since 1965, and the world has changed much

since then. Our immigration system has to change to meet new needs

and conditions."

"I have long advocated employer-based immigration because we need to

bring our labor needs and immigration policies more into line,"

Morrison said. "I believe that it is imperative, involving a moral

obligation as well as an economic incentive, that those employers

who directly benefit from increased immigration make a contribution

to the education and training of those who have been left behind in

the U.S. economy, which is why I am proposing the American Workers

Education Trust Fund in this legislation."

"The United States has always prospered as a nation of immigrants,

and there is no reason why we cannot continue to build broader

prosperity for the future ref:eshed with immigrants in the last

years of the 20th century, just as a previous generation did in the

first years of this century. Such a challenge requires new

thinking," Morrison said. "This legislation represents that new way

of thinking about this historic opportunity for legal immigration

reform. I look forward to the debate we are beginning today, with

hearings and a mark-up this spring, aiming at floor action soon.

This legislation will move."

An outline of the proposed Family Unity and Employment Opportunity

Immigration Act of 1990 is attached.

-30-

4

'20/90H.R. , by Mr. Morrison (Conn.)

The Family Unity and E3nloYment ODportunityImmigration Act of 1990

TITLE I -- FAMILY REUNIFICATION

Sec. 101. Spouses and children of permanent residents and otherrelatives.(a) Provides immediate relative status to spouses and minorchildren of permanent residents.(b) Changes the preference system as follows:First Preference - unmarried sons and daughters of U.S.citizens, and their children, 55,000Second Preference - unmarried sons and daughters of permanentresidents over 21 and their children, 35,000Third Preference - married sons and daughters of U.S. citizensand spouses and children, 30,000Fourth Preference - brothers and sisters of U.S citizens 21years of age and over, and their spouses and children, 65,000(c) Provides a worldwide numerical limit of 185,000(d) Conforming amendments.(e) Provides effective date of October 1, 1992. Allows atransition of 100,000 visas each for FY91 and FY92 for secondpreference backlog. Provides that those spouses and childrenof permanent residents who have petitions filed prior toOct. 1, 1992 are deemed immediate relatives on that date.

Sec. 102. Prohibition of deportation of Spouses and children oflegalized aliens.(a) Allows a temporary stay of deportation and workauthorization for the spouse and child of a legalized alienwho entered the U.S. prior to Jan. 1, 1990.(b) Defines eligible aliens.(c) Provides that aliens eligible for visas under differentprovisions of law are not precluded from seeking those visas.(d) Disqualifies derivative aliens from public assistance inthe same manner as legalized aliens.

TITLE I -- REVISION OF ADMISSION OF ALIENS ON THE BASIS OF LABOR

NEEDS

Sec. 201 Admission of aliens on the basis of labor needs.

(a) General(1) National Labor Shortage Determinations.(A) Provides that the Governor of a State, with the adviceof the State Council, may request that the Secretary of Labor

5

2

establish a national labor shortage schedule for one or moreoccupational classifications.(B) Determination by Secretary of Labor. Sets forth criteriafor making determinations:(i) Description of occupational classification.(ii) Assuming payment of wages of 120% of prevailing wage andworking conditions, project the need and supply of able,willing and qualified workers.(iii) Extent of labor shortage and period of shortage.(C) Establishment of Schedules. Requires the Secretary ofLabor establish schedules for occupations, including theextent and duration of the labor shortage and the recruitmentarea. Provides judicial review of the schedules under chapter7 of Title 5, U.S.C.(D) Definitions of Labor Shortage.(i) Defines labor shortage as the extent and timeperiod forwhich the projected need exceeds the projected supply.(ii) Defines long-term labor shortage as a period lasting atleast 5 years. Short-term labor shortage is any other laborshortage.(iii) Defines occupational shortage area as the area relatingto the occupation for long-term shortages on or after date ofalien admission.(iv) Defines recruitment area as a multi-state area (whichmay include the entire U.S.) of traditional or expected laborsupply where the Secretary of Labor finds a significant numberof qualified U.S. workers would, if recruited, be willing tomake themselves available for work.(2) Petition for Scheduled Workers based on National Shortage(A) Petition Filing. Requires employer file a petition withthe Attorney General, based on an employer attestion approvedby the Secretary of Labor.(B) Attestation.(i) Requires the Secretary of Labor issue an approval if theemployer attests that(I) Wages will be offered to such aliens and other individualsemployed in the occupation which are no less than 105% of theprevailing wage level for the occupation in the recruitmentarea(II) Positive recruitment efforts have been made(III) There is not a strike or lockout(IV) Notice has been provided to the bargainingrepresentative or employees at least 90 days before executionof the attestation.(ii) Prohibits approval if a hearing has been requested on theattestation within 30 days of filing.,3) daission(A) Provides admission for lawful temporary status ornonimmigrant status by the Attorney General.(B) Admission cannot exceed 75% of the defined labor shortagefor an occupation. Long-term labor shortage visas may notexceed 75,000 principals annually. Short term visas will be

6

3

limited on an annual basis. Sunsets both numerical limitsafter 5 years.(C) Priority for Adversely Affected Countries.(i) Provides that for the first 5 fiscal years priority foradmissions shall be from adversely affected countries.(ii) Provides waiver when the petitioner can demonstrate thataliens in the occupation are not available.(iii) Defines adversely affected countries as those notcontiguous to the U.S. and identified in sec. 314 of theImmigration Act of 1986 (IRCA), but including Romania,Bulgaria and Yugoslavia.(4) Fee on wages. Provides a 15% tax on wages.1,) Authorized period of stay.(A) Provides timeperiods for authorized stay based on shortagedetermination.(B) Termination of status.(i) Provides for termination of status when alien has not beenemployed in the occupation during the period of admission.(ii) Provides hardship waiver.(6) Adiustment of Status. Allows adjustment of status at theend of a 5 year period if the alien has been employed over thetimeperiod of the declared shortage.(b) Rural Regional Labor Shortages(1) Determination.(A) Provides for a request by the Governor, uponrecommendation of the Council, for a designation of a ruralregional labor shortage.(B) Determination is based on(i) General occupational classification(ii) Assuming wages paid at 120% of prevailing wage, theprojected need and supply of qualified workers(iii) Extent and period of shortage.(C) Establishment of Schedules. Requires the Secretary ofLabor establish schedules for occupations, including theextent and duration of the labor shortage and the recruitmentarea. Provides judicial review under chapter 7 of title 7USC.(D) Definitions.(i) Defines labor shortage as when projected need exceedssupply.(ii) Defines long-term labor shortage as a period of at least5 years and short-term for any other shortage.(iii) Defines occupational labor shortage area as therecruitment area for long-term shortage(iv) Defines recruitment area as an area of traditional orexpected labor supply(v) Defines rural region as contiguous counties none of whichis urbanized.(2) Petitions for Scheduled Rural Shortage(A) Allows petition to be filed with the Attorney Generalbased on an attestation approved by the Department of Labor(B) Attestation.

7

4

(i) Requires approval on basis of attestation that(I) Petitioner will offer wages at 105% of prevailing wage(II) Positive recruitment has been made(III) There is not a strike or lockout(IV) Notice of intent to request approval has been providedthe bargaining representative or employees 90 days prior toexecution of the attestation.(ii) Prohibits approval if a hearing has been requested within30 days of filing attestation.(3) Admission. Provides admission based on long-term orshort-term shortage which cannot exceed 75% of labor shortage.Provides priority for adversely affected countries.(4) Fee on wages, Provides 15% tax on wages.(5) Authorized period of stay, Provides admission for longterm and short term periods and termination of status if notemployed in the occupation during the period of admission.Allows hardship waiver.(6) Adjustment of ptatus. Provides adjustment of statusafter a 7 year period if the alien has been employed over thetimeperiod of the declared shortage.(W) Employer-Triggered shortage.(A) Provides for individual labor certification whereinsufficient workers are able, willing and qualified and whereemployment would not adversely affect the wages and workingconditions of U.S. workers. Allows certification for shortor long term.(B) Provides that when 5 or more employers in a region havefiled petitions within a 1 year period for employees in ageneral occupation, the Secretary of Labor shall establish aschedule which will be effective for 2 years. Provides forpetitions in the same manner as rural shortage processing.(C) Defines long-term shortage of at least 5 years.121_Admission.Provides admission for lawful temporary status ornonimmigrant.(3) Fee on wages. Provides tax of 15% of wages.(4) Authorized Period of Stay.Provides admission of long and short term workers.(i) Provides termination of temporary status if not employedin the occupation for the period of admission.(ii) Provides hardship waiver.(5) Adlustuent of Status. Provides adjustment of status atthe end of the 5 year period if the alien was employed in theoccupation through the 5 year period.(d) Classification as Exceptional Ability.(1) petition.(A) General.(B) Provides for petitioning the Attorney General forclassification as an alien of extraordinary ability in thesciences, arts, education, athletics, or business if the alienhas demonstrated sustained national or international acclaim,and whose achievements have been recognized in the field, and

8

5

who is entering the U.S. to continue, work in that area.Provides consultation with peer groups of alien's ability.(C) Provides processing fees.(2) Admission. Allows admission as lawful temporary residentwithout regard to numerical limitations, or as nonimmigrant.(3) Adlustment of Status. Allows adjustment of status at anytime.Allows accompanying aliens if they are an integral part of theperformance.(e) Classification for International Business.(l) Executives and Managers(A) Petitions. Allows a multinational company to petitionfor an executive or manager who(i) has served for at least 7 years in that capacity with thecompany or(ii) has been with tia company at least 1 year as an executiveor manager and has at least 14 years experience in marketing,research, trading or other areas.Provides expedited processing within 30 days.(B) Admission. Provides admission as lawful temporaryresident status.(C) Fees. Provides for a tax of 15% of wa-es.(D) Termination of status. Provides termination of statusif the alien is not employed in the occupation for the periodof admission. Provides hardship waiver.(E) Adjustment of Status. Allows adjustment of status after5 years without regard to numerical limits.(2) Career Advancement and Specialized Knowledge.(A) Petitions. Allows petitions on behalf of an alien who(i) has served at least I year with the company, has aforeign residence with no intention of abandoning, is seekingcareer advancement, or(ii) has served at least 5 years with the company or one yearwith 10 years specialization, and has special and uniqueknowledge of the company product and its application ininternational markets, and seeks to enter to expand suchknowledge.Provides expedited processing within 30 days.(B) Admission. Allows admission as nonimmigrants.(C) Fees. Provides tax of 15% of wages.(D) Period of Stay. Authorizes period of stay not to exceed3 years.(3) Management and marketing Trainee(A) Petition. Provides petition of an alien who(i) has served at least 1 year with the company(ii) has a residence abroad and no intention of abandoning(iii) seeks to enter the U.S. for the purpose of learningtechniques of management or marketing in the U.S.(B) Admission. Provides admission as nonimmigrants.(C) Fees. Provides tax of 15% of wages.(D) Period of Stay. Authorizes maximum 2 year period ofstay.

9

6

(4) Definition of Multi-Pational. Defines multinational asa firm, corporation or other legal entity (or an affiliateor subsidiary thereof) engaged in international trade orcommerce.(f) Professors andResearchers,(1) Petitions. Allows a university or institution of highereducation to petition for an alien professor or researcher who(A) is recognized worldwide as outstanding in a specificacademic area(B) has at least 5 years experience teaching or conductingresearch in the area(C) is coming to the U.S. for a tenured position.Provides consultation with peer groups(2) Admission. Allows admission as lawful temporary residentwithout regard to numerical limitations.(3) Fees. Provides a tax of 15% of wages.(4) Termination of Status. Provides termination of status ifalien is not employed in the occupation for the period ofadmission. Provides hardship waiver.(5) Adjustment of Status. Provides adjustment of status after5 year period.(g) Investment and Job Creation.(1) Petition.(A) General. Requires that investment benefit the U.S.economy and create 10 jobs for U.S. citizens or permanentresidents.(B) Amount of Capital. Specifies amount of capital as $Imillion which may be increased through regulation. Providesthat investments in rural and persistently high unemploymentareas may be at $500,000. Provides for an-adjustment up to5 times $1 million for those areas where there is highemployment.(C) Fees. Provides processing fee.(2) Admission. Provides admission as lawful temporaryresident for 4,000 principal aliens.(3) Termination of Status. Provides termination of statusfor failure to make or continue investment.Provides hardship waiver.(4) Adjustment of Status. Allows adjustment of status at endof 5 year period.(h)&(i)S(J) Entertainers and Athletes.Allows entertainers admission as part of an internationallyrecognized group who have had a sustained and substantialrelationship. Allows entertainers and artists based onreciprocity or cultural uniqueness. Provides processing feesand consultations with labor for certain entertainers andathletes. Allows athletes who perform at an internationallevel. Allows admission as nonimmigrants.(k) oeligious occupations.(1) Petitions. Allows petitions for aliens in a religiousoccupation or religious functionaries if the alien(A) has been a member of a religious denomination for two

10

7

years having a bona fide nonprofit religious organization inthe U.S.(B) seeks to enter(i) as a minister of religion(ii) to work in a professional capacity(iii) to work in another capacity(C) and has been carrying on such vocation or work 2 yearsprior to admission(2) Admission.(A) Provides admission for ministers and religious occupationsas lawful temporary residents.(B) Provides admission of religious functionaries asnonimmigrants..3) Adjustment of Status. Provides adjustent of status forministers and religious occupational aliens without regard tonumerical limitations.(4) Period of Stay. Provides a period of stay for religiousfunctionaries not to exceed 5 years.(1) General Provisions.(i) Petitions.(A) Pr..'ides that the Attorney General prescribe forms withrespect to petitions.JB) Enforcf ent.(i) Provides complaint process with respect to attestationsand petitions.(ii) Requires Secretary of Labor and Attorney Generaldetermine, within 180 days, whether or not a basis exists fora complaint. Provides hearing within 60 days ofdetermination.(iii) Provides sanctions for failure to meet conditions.(iv) Provides backpay in the case of wage violations.(2) Derivatives.(A) Allows derivative status of spouse or child.(B) Provides termination of status of derivatives based onprincipal unless hardship.(C) In those cases involving long-term shortages thederivative may be adjusted in the case of divorce or death ofthe principal.(3) Waives numerical limitations.(4) Authorizes travel and employment during periods of long-term shortages. Provides liability for cost of returntransportation in case of discontinued employment fornonimmigrants.(5) Provides that nothing in the section affects the AttorneyGeneral's ability to deport.(6) Allows up to 4 years in long-term shortages to counttowards naturalization.(7) Provides notice of denials for petitions.(8) Provides annual registration of nonimmigrants andimmigrants.

11

i) Authorization of Approvriations for Bureau of Labortatistics, Provides such sums as necessary for the BLS.

Requires appropriations prior to issuance of schedules.

Sec. 202. Changes in Nonimmigrant classifications.(a) Noniamigrant Visitors. Prohibits nonimmigrant visitorsfrom employment for hire. Allows installation of newequipment if the alien has specialized knowledge and theservices are performed over a period not to exceed 2 weeksbeginning within 30 days of the delivery of equipment.(b) Treaty Traders. Expands treaty trader status to includetransfer of technology. Defines substantial trade. Limitsto executives and managers. Provides that nationals of GATTcountries may be entitled to treaty trader status ifreciprocal privileges are extended U.S. nationals. Providesthat treaties which involve scheduling of occupations bereported to the Committees of Judiciary of the House andSenate.(c) Sunset of H vigsas. Rescinds H regulations promulgatedJan. 26, 1990.(d) Zxchange visitors, Eliminates training for business aspurpose for entry under exchange visa. Establishes an au pairprogram.(a) Elimination of L visas.(f) Conforming amendments.

Sec. 203. Conforming amendments.

Sec. 204. Crewmember status. Provides that no alien shall beentitled to crewman status during a labor dispute where thereis a strike or lockout. Prohibits parole of crewmen unlessin the interests of national security.

Sec. 205. Effective dates and transition.

Sec. 211. Employent admissions fees for labor shortagesProvides 15% tax on admission of aliens for labor shortage foreach calendar year of admission not to exceed 5 years or 7years, depending on the period of admission. Includesnonimmigrant admissions.

Sec. 212. haerican workers Education Trust Fund.Establishes Trust Fund for deposits in the U.S. Treasury forthe education and training of U.S. workers.

sec. 221. Educational Assistance and Traininc.(a) Use of Trust Funds. Provides that funds in the TrustFund shall be available to the Secretary of Labor inconsultation with the Department of Education for use inproviding educational assistance and training for individualsfor which scheduled occupations have been established,occupations in rural areas, and occupations which are the

12

9

subject of individual attestations.(b) Allocation of Funds, Provides that funds are allocatedamong the States based on a formula established jointly by theSecretaries of Labor and Education taking into consideration(A) the location of foreign workers admitted under the bill(B) the location of individuals in the U.S. desiring educationand training(C) the location of unemployed and underemployed individuals(D) the amount of matching funds made available by the States.(c) Disbursement to states. Provides for disbursement inaccordance with grant applications approved jointly by theSecretaries of Labor and Education under which not more than5% shall be available for expenses of the State AdvisoryCouncil and other administrative expenses.

Sec. 222. State labor needs development plan.(a) General. Provides that in order for a State to requestthe establishment of a scheduled occupation or receive fundsit must establish and maintain a State labor needs developmentplan, provide sufficient funds for the operation of anAdvisory Council, and provide for the monitoring and assistingof employers in recruitment.(b) Development Plan. Provides that the plan assess the needsand supply of labor for employment in the State, educationalassistance and training programs required to meet shortages,and the manner in which funds will be disbursed. Requiresconsultation with the Advisory Council.Cc) -State Advisory Council. Provides that State AdvisoryCouncils be composed of members appointed by the Governor andrepresent employers, workers in the State including labororganizations, and entities involved in education andtraining. Provides that the Council advise concerning theState labor needs development plan and requests forestablishment of labor shortage schedules. Allows the Councilto establish fees for services to employers.

TITLE III -- OTHER IMMIGRANT VISA PROVISIONS

Sec. 301. Transition for aliens from adversely affected countries.Provides 25,000 visas each year for FY92-94 for aliens froradversely affected countries who have entered the U.S. priorto January 1, 1990 and who have an employment commitment forone year. Allows the Attorney General to discontinue acceptingapplications after 250,000.

Sec._302. Transition for Eastern European Displaced Persons.Allows 25,000 visas each year FY92-94 for natives of EasternEuropean countries who since before October 1, 1989 have beenresiding in another foreign state but are not firmlyresettled. First preference is given to aliens who beforeOctober 1, 1989 had filed an application for refugee status

13

10

with the Immigration Service or with a voluntary agency.

Sec. 303. Transition for African immigrant.Provides 25,000 visas each year for FY92-94 for natives ofAfrica with no country exceeding 3,000.

Sec. 304. Treatment of Hong Kong as separate nation.Allows Hong Kong to be treated as a foreign state for purposesof allocation of 20,000 visas.

Sec. 305. Conforming amendments.

TITLE IV -- OTHER IKMIGRATION PROVISIONS

Sec. 401. Battered Spouse or child waiver of conditionalresidence.

Allows the Attorney General to remove the conditional basisof permanent resident status if an alien can demonstrate thatt.:. marriage was entered into in good faith and throughcredible evidence that the alien spouse was battered by, orwas the subject of extreme mental cruelty perpetrated by, hisor her spouse.

Sec. 402. Marriage Fraud.Provides that marriages which are bona fide and not enteredinto for purposes of procuring entry to the U.S. are notsubject to prohibitions on adjustment of status.

Sec. 411. APnlication of anti-discrimination provisions to termsand conditions of employment.Provides that it is an unfair immigration-related employmentpractice to discriminate against an individual with respectto the "terms and conditions" \of employment because of suchindividual's national origin or citizenship status.

Sec. 412. Zlimination of reaulr'm nt-of filing a Declaration ofIntent to Become a Citizen.Eliminates the current requirement that, as a conditionprecedent to the filing of a discrimination complaint underIRCA, the complainant file a declaration that he/she intendsto become a citizen.

Sec. 421. One year deadline for filing application for adjustmentof status for legaliled aliens.Extends the deadline from one year to two for IRCA temporaryresidents to file for permanent residence.

27-565 - 90 - 2

14

11

Sec. 422. Per'mittinQ extended apnlication period as court-ordered

remedy. Provides that nothing in sec. 245A of IRCA isconstrued as preventing judicial review of practices underthat section or preventing a court from ordering remedies ofthe Attorney General without regard to application periods.

Sec. 423, Clarification of disqualification of legalized aliensfrom cash welfare DroQrams.Deletes reference to financial assistance and replaces as"cash assistance" those programs which legalized aliens areprohibited from receiving.

Sec. 431. Elimination of paperwork for recruiters and referrers.Eliminates paperwork requirement for recruiters and referrersfor employer sanctions.

Sec. 441. -ecial immigrant status for aliens dependent onjuvenile court.Provides immigration status to aliens who have been declareda dependent of the juvenile court and deemed eligible by thatcourt for long-term foster care.

Sec. 442. Statistical Information.Requires the Attorney General to gather statisticalinformation on an annual basis.

See. 443. Exemption of Belize for user fees. Exempts Belize fromuser fees.

15

Mr. MORRISON. As chairman of this subcommittee, I made a com-mitment at the beginning of this Congress that we would spend thefirst year of this Congress focused on certain refugee-related issues,and we would spend the second year focused on accomplishing thetask of passing legal immigration reform. We have stuck to thatschedule and we are on that schedule, and these hearings are partof that.

There is no question that there is a significant interest, a broadinterest, in comprehensive reform of our legal immigration system,and we have the various proposals before us that demonstrate themember interest in moving in that direction.

I believe that there are some areas of quite specific agreementthat ought to be noted. There is agreement that our basic familyunity system for legal immigration is sound, and that it ought to beessentially retained, and that there may be some adjustments thatneed to be done at the margin. There is certainly an interestamong several of us in removing the bar that currently exists forthe spouses and minor children of permanent resident aliens herein the United States to immediate entry.

Beyond that, there is also a consensus that we need to expandthose who are permitted to come to the United States for the pur-pose of employment, and there are varying approaches as to how toaccomplish that goal. But, once again, the important point in theprocess is that there seems to be a broad view that there is an ap-propriateness to, beyond family admissions, thinking about the ad-mission of individuals on the basis of employment skills or actualemployment offers.

I hope that we will be able to learn from these hearings aboutwhere we agree and where we disagree, and promote a climate inwhich accommodations can be made, improvements in drafts canbe undertaken, and our markup process can be a constructive onetoward reaching a bill with broad support that can be takenthrough the process expeditiously.

With that said, I want to welcome our witnesses, but first I wantto give an opportunity to the gentleman from Texas, the rankingmember, for an opening statement.

Mr. SMITH of Texas. Thank you, Mr. Chairman.I, too, welcome our witnesses today to this hearing on labor-relat-

ed provisions of proposed legal immigration legislation and on mybill, H.R. 2646, on special immigrants.

The administration's witnesses from the Immigration and Natu-ralization Service, the State Department, and the Department ofLabor, will be testifying on labor-related immigration, but not onthe chairman's draft bill nor on my colleague Mr. Schumer's bill. Itis my understanding that the administration received the draftcopies of these two bills too late for an analysis to be made today.

I might say in the introductions, Mr. Chairman, that GeneMcNary, who is the Commissioner of INS, is making his first ap-pearance before this subcommittee, and we want to give a specialwelcome to him.

To go on, in my judgment we cannot realistically make sound im-migration law and policy on legal immigration without consideringthe effect of illegal immigration. We do not yet have control over

16

illegal immigration, nor do we fully know the impact that illegalimmigrants have on the U.S. labor market.

Also, we are carrying the burden of criminal aliens who are notbeing deported quickly, if they are deported at all. Taxpayers arepaying dearly for the fact that 20 percent of our Federal prison in-mates are criminal aliens. Taxpayers are forced to support the costof their detention and to suffer the consequences of their eventualrelease into society.

It is more important to deal with illegal immigration and crimi-nal aliens now than to change our legal immigration law. Whileour current legal immigration law is not perfect, at least it is aknown entity. The impact of resulting numbers of immigrants al-lowed by the proposed bills, in combination with illegal immigra-tion numbers, is an unknown. The problems of illegal immigrationand criminal aliens must take priority over legal immigrationreform.

When it is time to consider legal immigration reform, Congressmust, in my view, use three guiding principles in formulating ourimmigration policy. First, Congress, not special interest groups,must determine what our level of immigration must be. Congressmust set a national level of immigration. We cannot take in allthose persons who desire to come to this country, and those desir-ous of coming should not be allowed to determine our immigrationpolicy.

Second, we must look first to the needs of the United States. Thismeans that we should increase the proportion of the independentor skilled immigrants to the number of family-related immigrants.

Third, we must be sure that our immigration laws and policiesare consistent and evenhanded. We must not discriminate for oragainst any country or ethnic group.

Today we are here to talk about the legal immigration of personswho fall outside of the family preference categories. The proposalsin the bills before us range from a point system to a complicatedsystem tied to labor shortages.

When considering independent-or labor-related immigrants, Con-gress must recognize that our first priority is to our own citizens.In my own mind, high numbers of immigrants, both legal and ille-gal, necessarily displace American workers. Those Americans dis-placed vary, depending on the industry and location, but they arenonetheless displaced.

Those Americans most affected by high levels of immigration areour own underclass, particularly minorities. A Rand Corp. study ofimmigrants found that even if immigrants stimulate employmentgrowth overall, they may do so at the cost of native-born workers.Also, the Urban Institute report stated that the fact that wages ofunskilled workers declined in the 1980's was, little doubt, related tothe presence of immigrant labor.

We must realize that our first duty must be to our own poor. In-stead of importing foreign workers, we must try to use our ownworkers, and if necessary train U.S. citizens capable of taking thosejobs. Foreign workers are a "quick fix" and no solution.

If we allow our free market system -to work, the market willforce new technological advances, increased wages, and improved

17

working conditions. These advances will encourage and ultimatelypromote U.S. workers to fill the perceived labor shortages.

United States workers are not the only victims of high levels ofimmigration. State and local governments face severe financialproblems because of legal and illegal immigration. There is an in-creased demand on schools, hospitals, housing, and other socialservices. Taxpayers are becoming increasingly concerned about thisdrain on their hard-earned dollars.

Mr. Chairman, that concludes my remarks, and I yield back.Mr. MORRISON. The gentleman from New York.Mr. SCHUMER. Thank you, Mr. Chairman. Once again, I want to

commend you for not only holding these hearings but also for yourleadership in legal immigration and for putting forth such athoughtful and provocative piece of legislation.

I, too, have a draft of an employment-related immigration billcirculating which I intend to introduce next week. I am for expan-sion of family immigration but my bill doesn't address that. I deferto the leadership of the gentleman from California on that issue.

I believe that immigrants are great for America. At a time of in-creasing labor shortages, the influx of new blood, new ideas, andnew skills are critical to maintaining a competitive work force inthe United States.

At the same time, I believe that we in the United States mustnurture our own work force. We can't turn our backs on the unem-ployed, the unskilled, and the disadvantaged. Impending laborshortages will create unique opportunities for women and minori-ties, and we have to ensure that our immigration policies don'tcreate obstacles to these individuals.

Increased but controlled growth in employment-related immigra-tion will not deprive these underrepresented sectors in our workforce of jobs. I disagree, I guess, with the gentleman from Texashead-on on this issue. Immigrants can create more opportunitiesfor others, as they have done in the past.

My bill provides for measured growth in employment-sponsoredimmigration, which now comprises less than 10 percent of immi-gration to our country. The bill also addresses some of the nonim-migrant categories by making them more useful to business andproviding necessary labor protections for the U.S. work force.

The bill also establishes a diversity lottery that provides visas tocountries that are underrepresented in the pool of immigrantscoming to the United States. Not only does this lottery address cur-rent disparities, but it will continue to respond to whatever inequi-ties may arise in the future flow of immigrants. Expediting andstreamlining the process where necessary, creating work force pro-tections where warranted, and opening up our doors to stimulateour economic growth, is the crux of the bill.

I look forward to hearing from our witnesses today.Mr. MORRISON. The gentleman from Florida, Mr. McCollum. Do

you have an opening statement?Mr. MCCOLLUM. I have no opening statement, Mr. Chairman.

Thank you.Mr. MORRISON. The gentleman from California.Mr. BERMAN. I have no opening statement, Mr. Chairman. I

guess I have a couple of opening comments. I don't think--

18

Mr. MORRISON. We don't allow those--Mr. SCHUMER. Under the rules, no comments.Mr. MORRISON [continuing]. Opening comments, only statements,

please.[Laughter.]Mr. BERMAN. We can recess for 30 minutes and I will have a

statement.Mr. MORRISON. Go ahead.Mr. BERMAN. Just to try to join issue with the gentleman from

Texas, I think you have to be careful in how you look at this wholequestion of immigration. There have undoubtedly been all kinds ofsituations where "foreign workers" were used and manipulated totry to depress wages, displace U.S. workers. They have become,particularly in the context of controlled guest worker programs orrecruitment of undocumented workers, objects of exploitation withvery negative results for both the workers and for the U.S. workersthat they displace.

But I certainly think that you have a tremendous burden ofproof, because of the clear, empirical evidence to the contrary, thatimmigration in and of itself and growth that results from immigra-tion is bad for U.S. workers and bad for this country. I think ourown history repudiates that so clearly and so solidly.

My legislation of course focuses on what I think is the most im-portant aspect or part of immigration, that concept of family reuni..fication. Everyone talks a lot about families, but in the end I thinkthe test of our commitment to that is the extent to which our im-migration policies reflect the principle of family reunification.

Study after study shows that people who migrate to this countryto come onto a citizenship track based on their family relationshipsconstitute some of the finest workers in a growing economy thatresults in growth in jobs for U.S. workers as well as the new immi-grants. I think the bill that I have introduced, and in many casesthe bill the chairman is talking about introducing in the area offamily-based immigration, reflect that philosophy. It is consistentwith our approach, particularly in the last 20 years, inimmigration.

Mr. MORRISON. The gentleman from New York, Mr. Fish.Mr. FISH. Thank you, Mr. Chairman.I think the time has come to revise our legal immigration proce-

dures. If anything, we are behind. The Senate has acted twice onthis issue. The reform of legal immigration is the remaining issuewhich we inherited from the Select Commission on Immigrationand Refugee Policy.

But while I appreciate the concern expressed by my colleaguefrom Texas that work on the problem of illegal entrance is notover, the nineties must be the decade in which we turn to the prob-lems and deficiencies of our legal immigration laws, laws that havenot been changed for nearly 25 years. I think it is also important tocome to a consensus on the way in which to change our legal immi-gration laws and policies, and that must reflect the needs and cir-cumstances of our country.

One pressing need is the extended separation of members of im-mediate families. Another is the lack of immigration opportunities

19

for those without immediate family ties; and yet another the needsof our work force.

I hope that our work product will, like my legal migration bill,H.R. 2448, promote family unity by giving immediate relatives ofpermanent resident aliens a similar treatment as immediate rela-tives of U.S. citizens, and also provide a vehicle by which independ-ent immigrants may come to the United States. I welcome thismorning's distinguished panel, and am very interested in the ad-ministration's analysis of the merits and potential problems of thevarious proposals for independent and labor-based migration.

Thank you very much.Mr. MORRISON. Thank you very much. I would like to call the

first panel, and ask the members of the panel to please stand to beplaced under oath.

Ambassador Princeton Lyman is Director of the Bureau of Refu-gee Programs, Department of State. He is accompanied by Mr.Jerome Ogden, Deputy Assistant Secretary for Visa Services fromthe Department of State. The Honorable Gene McNary, Commis-sioner of the Immigration and Naturalization Service, Departmentof Justice, is accompanied by Mr. Bill Cook, General Counsel forthe Service.

[Witnesses sworn.]Mr. MORRISON. Thank you very much. Please be seated.Commissioner McNary, I want to join my colleague from Texas

in welcoming you to your first appearance before the subcommit-tee, and we will try to be gentle.

Mr. McNARY. Thank you.Mr. MORRISON. I know that we are going to enjoy a productive

working relationship, and I appreciate your being here today.Ambassador Lyman, if you would proceed first with your state-

ment, your written statement will be made part of the record in itsentirety, and if you would please try to summarize the majorpoints within 5 minutes, we would appreciate it. Thank you.

STATEMENT OF PRINCETON N. LYMAN, DIRECTOR, BUREAU FORREFUGEE PROGRAMS, DEPARTMENT OF STATE, ACCOMPANIEDBY JEROME OGDEN, DEPUTY ASSISTANT SECRETARY FOR VISASERVICESMr. LYMAN. Thank you very much, Mr. Chairman, and I wel-

come this opportunity. I would like to make a brief summary of theDepartment of State's views on reform of legal immigration-theCommissioner will go into more detail on that-and I would like toaddress much of my remarks to H.R. 2646, introduced by Congress-_man Smith last year.

On general immigration, the Department supports maintainingthe importance of family reunification, a principle which is re-tained under all the bills under consideration, and we also sub-scribe to the general goal of increasing skill-based immigration tobenefit U.S. national interests, provided it is accommodated withinreasonable overall levels of immigration and consistent with thepriority to family reunification.

The Department firmly believes that in any new legislation, thePresident should have authority to waive the 20,000 per country

20

limit to permit the United States to address immediate internation-al crises when this is in the national interest of the United States,and so we propose that upon notification of Congress, individualcountry limits could be raised to a total worldwide number of20,000 additional immigrant visas in any given year.

The Department supports the continuation of the current secondand fifth preferences. We do not favor limiting fifth preference toonly unmarried brothers and sisters, nor do we favor transferringto the immediate relative category the spouses and children under21 of legal immigrant residents.

Finally, the Department of State is concerned that the necessaryadditional resources be provided to administer whatever immigra-tion system may be enacted into law. For any increases in the im-migration ceiling, a substantial portion would consist of additionalapplicants at consular offices abroad. Only a minority would con-sist of applicants for adjustment of status in the United States. Wewould be happy to work directly with the subcommittee on thisissue before any legislation is marked up.

Let me turn now to the special humanitarian immigration legis-lation, H.R. 2646, which was introduced by Congressman LamarSmith and is supported by the administration. This proposes a spe-cial category of immigration to be offered to applicants in whomthe United States has a humanitarian interest.

The original idea for this bill lay in the conditions of the Sovietrefugee program. As you know, over the last year we have im-proved that system considerably. We have moved most of theSoviet applicants from Vienna and Rome to the United States, andwill complete that in this spring, and we are now admitting Sovietrefugees to the United States at an average monthly rate of 5,000,far past any of our previous experience. I am also pleased to an-nounce that last week we signed a memorandum of understandingwith two Jewish organizations to provide private funding for up to8,000 of the Soviet refugees.

But at the same time our experience is that the number of refu-gees and other applicants from the Soviet Union will exceed great-ly the numbers that we have in the refugee program. We believethat the United States must make every effort to ensure that wecan continue to respond generously to certain groups in the SovietUnion who are acutely threatened during this period of ethnicstrife and disturbing manifestations of anti-Semitism. H.R. 2646would enable us to do so.

Southeast Asia provides another striking illustration of the po-tential use of special humanitarian immigrant legislation. We haveagreed last June to take 40 percent of those Vietnamese refugeesin camps who have been there over a long period of time, and wehave expanded our orderly departure program from Vietnam.

But our purpose in such programs is to reunite these personswith their family members in the United States, and to the extentthat the refugee definition does not cover all such persons, the onlymechanism available to us up until now has been the use of theAttorney General's parole authority. This legislation would allowus an alternative which we think is more suitable.

21

And Hong Kong represents another potential example for theuse of such legislation and a means to encourage people- that suchalternatives would exist if needed.

In- summary, Mr. Chairman, we think that H.R. 2646 providesthe means to respond to these types of situations. We do not be-lieve that the statute needs to specify nationalities nor numbers.Rather, as in the bill, we think the consultation process wouldallow us to work out with Congress each year the appropriate uses.If there is one lesson we have learned in the last 6 months, it isthat the direction and pace of change in the world is quite unpre-dictable, even to the experts.

Mr. Chairman, this concludes my testimony and I would behappy to answer any questions.

Mr. MORRISON. Thank you, Ambassador Lyman.[The prepared statement of Mr. Lyman follows:]

22

PREPARED STATEMENT OF PRINCETON N. LYMAN, DIRECTOR, BUREAU FOR REFUGEEPROGRAMS, DEPARTMENT OF STATE

Mr. Chairman, members of the Committee, I welcome the

opportunity to present the Department's views on pending

immigration legislation. I will address certain aspects of the

immigration system, then turn to H.R. 2646, a bill concerning

special humanitarian immigrant legislation proposed by the

Administration and introduced by Rep. Smith.

Let me begin with a summary of the Department of State's

views on reform of legal immigration. INS Commissioner McNary,

representing the Department of Justice, and the Department of

Labor witness at the afternoon panel will address many of the

specific elements raised by the several legislative proposals.

The Department supports maintaining the importance of

family reunification, a principle which is retained in all the

bills under consideration. We also subscribe to the general

goal of increasing skill-based immigration to benefit U.S.

national interests, provided it is accommodated within

reasonable overall levels of immigration and consistent with

priority given to family reunification.

Waiver Authority

The Department firmly believes that in any new legislation

the President should have authority to waive the 20,000 per

country limit to permit the United States-to address immediate

23

- 2 -

international crises when 'his is in the national interest of

the United States. The Department proposes that, upon

notification of Congress, individual country limits can be

raised up to a total worldwide number of 20,000 additional

immigrant visas in any given year. The numbers could be

allocated to any specified countries or dependencies and to any

preference category or combination of i..Negories within the

beneficiary countries/dependencies.

Treatment of Extended Famiiy Connection Immigration

The Department supports the continuation of the current

second and fifth preferences. We do not favor limiting fifth

preference to only unmarried brothers and sisters. Nor do we

favor transferring to the immediate relative category the

spouses and children (under 21) of legal permanent residents.

Resource Implications

Finally, the Department of State is concerned that the

necessary additional resources be provided to administer

whatever immigration system may be enacted into law. For any

increases in the immigration ceiling, a substantial portion

would consist of additional applicants at consular offices

abroad; only a minority would consist of applicants for

adjustment of status in the United States. Existing resources

-- both personnel and facilities -- would simply not permit the

24

-3-

timely and orderly processing of the additional applicants who

would become eligible under any of the bills under

consideration. We would hope to be able to work directly with

the Subcommittee on this issue before any legislation is

marked-up.

With these brief comments on legal immigration, I will now

turn to the question of special humanitarian immigrant

legislation.

Special Humanitarian Immigation

H.R. 2646, the bill proposed by the Administration and

introduced by Congressman Lamar Smith, proposes a category of

special immigration to be offered to applicants in whom the

United States has a humanitarian interest. The need for this

legislation is all the more relevant today as we look at

situations in several parts of the world where such legislation

could be applicable.

The original idea for this bill over a year ago lay in the

conditions of the Soviet refugee program. As you know, last

September we decided that the liberalization of Soviet

emigration practices had reached a stage permitting us to move

to full processing of refugee applicants in the Soviet Union.

The large numbers of Soviet applicants building up in Vienna

25

- 4 -

and Rome had stretched our refugee processing capabilities

there to their absolute limits. The U.S. Government was

bearing a heavy financial and humanitarian burden assisting

these people while they waited to meet the paperwork demands of

the refugee program.

To replace the overburdened systems in Vienna and Rome, we

established new mechanisms and capabilities in Washington and

Moscow enabling the U.S. Government to respond more generously

and systematically to a continuing high rate of refugee

applications from groups in the Soviet Union who were of

special humanitarian interest to the U.S.

Today these new procedures are fully in place and operating

even beyond our expectations of last September. The new

application process in Moscow has made it possible for all

interested Soviets to register for the program. At the same

time, it has enabled us to focus our processing resources and

energy on family reunification and on those ethnic and

religious groups with the strongest claim to refugee status, as

identified in the legislation passed by Congress in November.

We have increased our refugee processing capacity in Moscow

four-fold and will continue to expand it over the coming

months. We are now in the final stages of eliminating the

costly backlogs in Soviet refugee processing through Vienna and

26

-5-

Rome. During this fiscal year we have been admitting Soviet

refugees to the U.S. at an average monthly rate of 5,000. This

far surpasses our past capabilities.

You will recall that the Presidential Determination on

refugee admissions for FY 90 included 10,000 extra admissions

numbers for private sector sponsorship, as a supplement to the

40,000 fully-funded numbers in the Soviet refugee program. I

am pleased to announce that last week we signed a Memorandum of

Understanding with the American Jewish community to provide

private funding for up to 8,000 of these 10,000 additional

numbers. We are extremely pleased with the very generous

response of the Jewish community to the Soviet refugee

program. Between the more than 40,000 Soviet refugees entering

the U.S. through Western Europe and those coming directly from

Moscow this year, we expect our Soviet refugee admissions to

reach an all-time high.

At the same time, our vastly expanded capacity for

processing applications through the new Washington Processing

Center tells us that the Soviet refugee demand is continuing to

grow. There are far more legitimate refugees in the Soviet

Union than there are numbers. It is clear that the United

States must make every effort to ensure that we can continue to

respond generously to certain groups in the Soviet Union who

27

- 6 -

are acutely threatened during this period of ethnic strife and

disturbing manifestations of anti-Semitism. The need surpasses

the likely resources we will have for the refugee program.

Moreover, we have learned from our experience with unfunded

numbers in FY 90 that the demands upon the private community

organizations, while ably and generously met this year, cannot

be expected to be expanded to serve much larger numbers of the

kind we should be addressing.

Southeast Asia provides another striking illustration of

the potential use of special humanitarian immigrant

legislation. Last June, at the International Conference on

Indochinese Refugees, the United States entered into a

multilateral commitment with other western nations to resettle

all of the longstayer Vietnamese asylum seekers. The United

States agreed to resettle a specific target number of the

longstayers -- 40 percent of the regional total, or about

18,500 persons.

Longstayets are truly people of humanitarian concern. They

have suffered years in austere camp conditions. Many have been

separated from other members of their families. However, not

all qualify as refugees under U.S. law.

28

-7-

Our humanitarian purpose is to reunite the longstayers with

their family members in the United States. To the extent that

the refugee definition does not cover such persons, the only

mechanism available to the United States to address this

situation is a large-scale use of the Attorney General's parole

authority. As we have said, and as I believe Congress agrees,

the large-scale use of parole is highly undesirable. We would

much prefer to have the authority of special humanitarian

immigrant legislation with which to respond to this situation.

Similar circumstances arise in the Orderly Departure Program

which permits legal departure directly from Vietnam and which

is also an important element in the agreement reached at the

Conference.

Hong Kong represents another example of where special

humanitarian immigration could be important. Our objective is

to encourage Hong Kong residents to remain in Hong Kong and

continue to contribute to its economic and political

processes. H.R. 2646 provides the U.S. with the means,

however, to respond to situations of special need should it

become necessary. The existence of that capability in turn may

act to reassure Hong Kong residents and thus make it easier for

them to stay.

29

H.R. 2646 provides the means to respond to these

situations. The Department does not believe that the statute

should stipulate either specific nationalities or specifi-c

numbers of beneficiaries in particular categories. Rather, as

in H.R. 2646, we believe that the exact use of these numbers

should be developed in annual consultation with the Congress.

This would allow the U.S. flexibility to respond, as necessary,

to changes in the Soviet Union, Eastern Europe, Southeast

Asia -- or elsewhere. If there is one lesson to be learned

from the last six months, it is that the direction and pace of

change in the world is unpredictable even to the experts.

This concludes my testimony. I would be happy to answer

any questions from the Comnittee.

27-565 - 90 - 3

30

Mr. MORRISON. Commissioner McNary.

STATEMENT OF GENE McNARY, COMMISSIONER, IMMIGRATIONAND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE,ACCOMPANIED BY BILL COOK, GENERAL COUNSELMr. McNARY. Mr. Chairman and members of the subcommittee, I

welcome the opportunity to comment on the various immigrationreform proposals now under consideration by this committee. Thesefour pieces of legislation, H.R. 672, H.R. 2448, H.R. 2646, and S.358, all demonstrate the commitment of the Congress towardreform of the current legal immigration laws. The administrationshares this commitment.

Today we address legal immigration reform as another signifi-cant element in the reform of our immigration laws. Congress hasalready dealt with two elements, U.S. refugee and asylum policyand the problem of illegal immigration. It is now appropriate toturn our attention to reforming and correcting the inadequacies ofthe current legal immigration system.

I would like to note four important policy goals that the adminis-tration has identified which should guide legal immigration reform:

First, preserving the value of family reunification while at thesame time providing greater opportunity for the entry of those whomay not have close relatives in this country but who do have thejob skills, education, and other characteristics that would promotethe national interest.

Second, preserving and promoting diversity in sources of immi-gration, so that this country will receive the benefit of significantcontributions from a wide variety of cultures.

Third, preserving the value of citizenship and ensuring that newcitizens develop an understanding of and appreciation for the insti-tutions and values of the United States.

And, finally, addressing U.S. economic needs through the struc-ture of the U.S. immigration system.

The administration has explored the various legislative optionson legal immigration reform and has concluded that modificationsare necessary to these bills in order to strike a balance among thevariety of competing factors that must be taken into account inadopting sensible immigration reform.

Concerning the level and balance of immigration, the administra-tion endorses the concept of separate categories for family and in-dependent immigrants. This approach enables us to ensure thelongstanding commitment to an adequate number of visas for unifi-cation of families, while providing a sufficient proportion of visasfor the independent immigrant group. While we support carefullyreasoned increases in the annual level of total immigrants, effortsshould be made to direct those visas primarily to categories whicheither promote nuclear family unity or provide needed employeesfor U.S. businesses, universities, and other institutions.

The current level of immigration to this country, approximately490,000, not counting refugees, registry cases, and certain other cat-egories outside the purview of legal immigration reform, is wellwithin the ability of the country to absorb newcomers. The admin-

31

istration urges some caution, however, when increasing an overalllimit on the level of immigration to the United States.

With regard to the per country limit, the current legal immigra-tion system provides for limits of 20,000 immigrants per country.Dependencies such as Hong Kong receive 5,000 immigrant visas.The Department believes that the issue of per country limitsshould be the subject of further examination by the Congress andthe executive branch, in order to ascertain the best way to preservea desirable level of diversity in the immigration population.

As to family-based immigration, the administration believes thatthe immediate relatives of U.S. citizens should receive the primarypriority in immigrating to the United States. In striving to achievea more desirable level and balance of immigration, the administra-tion recommends that visas be allocated among family preferencesto promote nuclear family unity by shifting visas from more dis-tant relatives to closer relatives-that is spouses and unmarriedchildren. The current law does not promote unification of nuclearfamilies when it reserves visa numbers for more distantrelationships.

We oppose an expanded definition of "immediate relatives" to in-clude the spouses and children of lawful permanent residents, thecurrent second preference. Because all immediate relatives wouldbe admitted to the United States without limit, the way in whichthe term is defined is critical.

A change in definition to include immediate relatives of perma-nent residents would result in dramatic increases in the number ofaliens able to immigrate each year. The result would go far beyonda moderate increase in overall immigration. Such a massive influxof immigrants would significantly tax the resources of the FederalGovernment and likely overburden the social services provided byvarious agencies.

My time is up. I will address independent immigrants-Mr. MORRISON. Please go ahead and complete your statement, if

there is no objection from any members of the panel.Mr. McNARY. That is very cordial. I appreciate it.Furthermore, if the spouses and children of permanent residents

are included in the definition of "immediate relatives," the distinc-tion between the petitioning rights of citizens and those of residentaliens will be eliminated. The administration does not think this isdesirable, for two reasons.

First, we believe that the unlimited ability to bring relatives tothis country without regard to numerical restrictions is a specialprivilege. In a sense it is on a par with the right to vote and to holdpolitical office, and should be limited to those who are citizens ofthis country.

Second, the proposal could discourage aliens from seeking natu-ralization and thereby assimilating into the national mainstream.For these reasons, we feel that such a change in definition is detri-mental to the efficient administration of the immigration and na-tionality laws of the United States.

With regard to independent immigrants, we generally supportthe overall direction in the independent preference coverage ofthese bills. The division of the occupational preferences into thosewith advanced degrees or exceptional ability and those who qualify

32

as skilled workers is a definite improvement over the currentsystem.

We also support adding new visa categories for those foreign en-trepreneurs seeking to invest in job-creating enterprises in thiscountry, and providing -'esidence on condition such aliens establishsubsequently that their investment continues to meet the require-ments of the statute. We believe that this constitutes a small butsignificant step in improving our economy.

This concludes my statement, and I will be pleased to answerany questions you may have.

[The prepared statement of Mr. McNary follows:]

33

PREPARED STATEMENT OF GENE MCNARY, COMMISSIONER, IMMIGRATION ANDNATURALIZATION SERVICE, DEPARTMENT OF JUSTICE

Mr. Chairman and Members of the Subcommittee:

I welcome the opportunity to comment on the various immigration

reform proposals now under consideration by this committee.

These four pieces of legislation, H.R. 672, H.R. 2448, H.R:. 2646,

and S. 358, all demonstrate the commitment of the Congress toward

reform of the current legal immigration laws. The Administration

shares this commitment.

Today we address legal immigration reform as another significant

element in the reform of our immigration laws. Congress has

already dealt with the first two elements: U.S. refugee and

asylum policy, and the problem of illegal immigration. Great

strides in refugee and asylum policy were made in establishing

the world-wide standard of the Refugee Act of 1980. Substantial

progress was also made in dealing with illegal immigration

through the passage of the Immigration Reform and Control Act of

1986 three years ago. It is now appropriate to turn our

attention to reform of the legal immigration system of this

country. Statutory reform is needed to correct the inadequacies

of the current system and to determine the future direction of

our immigration policy.

Before expressing the specific views of the Administration on the

proposed bills, I would like to note four important policy goals

that the Administration has identified which should guide legal

immigration reform.

1

34

(1) Preserving the value of family reunification, while

at the same time providing greater opportunity for the entry

of those who may not have close relatives in this country,

but who do have the job skills, education, and other

characteristics that would promote the national interest;

(2) Preserving and promoting diversity in sources of

immigration, so that this country will receive the benefit

of significant contributions from a wide variety of cul-

tures;

(3) Preserving the value of citizenship, and ensuring

that new citizens develop an understanding of and

appreciation for the institutions and values of the United

States; and

(4) Addressing U.S. economic needs through the

structure of the U.S. immigration system.

As you know, the Administration has expended considerable effort

exploring the range of legislative options on legal immigration

reform. After a careful review of the various alternatives,

however, the Administration concluded that many of our goals were

reflected in S. 358, passed by the Senate last year. While we

would recommend several modifications to that bill, on the whole

we regard its approach as sound. On balance, we believe that

S. 358 strikes a better balance among the variety of competing

factors that must be taken into account in adopting sensible

immigration reform, than do any of the other bills presently

before this Subcommittee.

2

35

Now, Mr. Chairman, I'would like to turn to the ways in which

S. 358 could be made even stronger.

LEVEL AND BALANCE OF IMMIGRATION

The Administration endorses the concept of separate categories

for family and independent immigrants. This approach enables us

to ensure the longstanding commitment to an adequate number of

visas for unification of families, while providing a sufficient

proportion of visas for the independent immigrant group. These

vital newcomers, who may not have family members in the United

States but who do have skills or other characteristics that would

promote the national interest, are also of great importance to

our country. While we support carefully reasoned increases in

the annual level of total immigrants the so-called "capff --

efforts should be made to direct those visas primarily to

categories which either promote nuclear family unity or provide

needed employees for U.S. businesses, universities, and other

institutions.

We support increases in the level of immigration to this country.

The current level of immigration to this country, approximately

490,000 (not counting refugees, registry cases, and certain other

categories outside the purview of legal immigration reform), is

well within the ability of the country to absorb newcomers.

While the Administration urges a certain amount of caution when

increasing an overall limit on the level of immigration to the

U.S., we are confident that a moderate increase in the level of

3

36

immigration, such as the 63.0,000 level contained in S. 358, can

be accommodated.

S. 358 sets a limit of 150,000 for independent immigration (the

majority of which are employment-based) and a limit of 480,000

for family connected immigrants. No limit is placed on the

admission of immediate relatives of U.S. citizens. The worldwide

limit for other family connected immigrant visas is established

by subtracting from the worldwide level the number of visas

granted to immediate relatives of U.S. citizens during the prior

year. S. 358 also provides a "floorO of 216,000 to preserve the

present level of other family-connected immigration. The

Administration supports this arrangement, including the Senate's

provision that the worldwide cap be "pierced" when the floor

number (216,000) plus the immediate relative visas go above the

family-connected ceiling of 480,000.

PRESIDENTIAL WAIVER AUTHORITY

The current legal immigration system provides for limits of

20,000 immigrants per country. Dependencies, such as Hong Kong,

receive fewer immigrant visas (5,000),. Based on the need to

address certain immediate international crises through the U.S.

immigration system, the Administration believes the President

should have the authority to waive the per country limit. Since

neither S. 358, nor any of the pending House bills address this

waiver authority, the Administration urges addition of such

language to any bill approved by this Subcommittee. This

authority should provide discretion to the President, upon

4

37

notification of Congress, to raise any pet country limitation

beyond the level currently set. The total number of immigrant

visas issued under this authority will not exceed 20,000

worldwide per year. Additionally, we believe the President

should have the discretion to allocate the additional visas to

any specified countries or dependencies, and to any preference

category or combination of categories within those beneficiary

countries or dependencies.

FAMILY-BASED IMMIGRATION

The Administration believes that the immediate relatives of U.S.

citizens should receive the primary priority in immigrating to

the United States. In striving to achieve a more desirable level

and balance of immigration, the Administration recommends

reducing the visas assigned to the current fifth preference.

Reduction of this category would make visa numbers immediately

available for reallocation to other family-based immigrant

categories. During fiscal year 1987, only 34% of fifth

preference visas were issued to brothers or sisters of citizens,

while 66% of them were issued to immediate family members of

those brothers and sisters (i.e., brothers- and sisters-in-law or

nieces and nephews). These more distant relatives are an

important part of our immigrant pool, but we bel'eve that closer

relatives deserve priority. This re-allocation would shift visas

from more distant relatives to closer relatives.

The two House legal immigration reform bills, H.R. 672 and H.R.

2448, provide less control over the flow of overall immigration.

5

38

Both House bills expand the definition of 'immediate relatives'

to include the spouses and children of lawful permanent residents

(the current second preference). Because all immediate relatives

under these bills would be admitted to the United States without

limit, the way in which the term is defined is critical. The

changes in definition contained in the House bills ensure that

the number of immediate relatives of permanent residents who are

able to immigrate each year will be far greater than that

contemplated by either the current law or by S. 358.

While the Administration supports a moderate increase in the

level of second preference immigration, we believe that these

bills go far beyond a moderate increase. Under the House bills,

almost overnight, the vast majority of the 400,000 second

preference visa applicants currently awaiting quota numbers, plus

most of the immediate relatives legalized under the provisions of

the Immigration Reform and Control Act of 1986 (IRCA) would

become eligible for immediate issuance of immigrant visas. This

massive influx of immigrants would significantly tax the

resources of the Immigration and Naturalization Service (INS),

and the State Department, as well as state and local governments.

Furthermore, if the spouses and children of permanent residents

are included in the definition of 'immediate relatives,' the

distinction between the petitioning rights of citizens and those

of resident aliens will be eliminated. The Administration does

not think that this is desirable for two reasons. First, we

believe that the unlimited ability to bring relatives to this

6

39

country without regard to numerical restrictions is a special

privilege. In a sense, it is on a par with the right to vote and

hold political office, and should be limited to those who are

citizens of this country. Second, the proposal could discourage

aliens from seeking naturalization and thereby assimilating into

the national mainstream. For these reasons, we feel that these

definitional changes are detrimental to efficient administration

of the immigration and nationality laws of the United States.

INDEPENDENT IMMIGRANTS

As they do with regard to the family connection categories, each

of the reform bills being considered takes a different approach

to the independent immigrant categories. While all three bills

provide approximately 150,000 immigrant visas for independent

immigrants, the manner in which the visas are allocated differs

with each proposal. This volume (150,000) represents a

significant increase over the 54,000 third and sixth preference

visas currently allocated. The Administration feels that this

increase is most desirable in that it would provide American

businesses and universities with a fresh pool of highly and, in

some cases, uniquely skilled employees to fill critical

positions. Furthermore, the issuance of immigrant visas to these

workers would enable them to eventually become full participants

in the American work force and society and would likely relieve

some problems we now face with the nonimmigrant worker

categories.

7

40

S. 358, H.R. 672 and H.R. 2448 all provide about 40,000 visas for

aliens who are professionals or who have exceptional ability in

the arts, sciences, and business. However, each bill defines the

category differently. H.R. 2448 divides professionals into two

groups: those aliens with doctoral level degrees and those with

bachelor's and master's degrees. H.R. 672 maintains the current

degree level (baccalaureate) for members of the professions. We

prefer the approach taken by the Senate bill, which more narrowly

defines the term -professionalm to restrict it to those who

possess advanced degrees instead of merely baccalaureate degrees.

We feel that this more narrow definition will help ensure that

those aliens who potentially can benefit the country the most

will immigrate as expeditiously as possible.

H.R. 2448 and S. 358 take a preferable approach to the skilled

worker category. These bills limit eligibility to those skilled

workers who are coming to fill jobs requiring at least two years

of training or experience. We believe that the addition of this

provision will serve one of the major goals of the Immigration

and Nationality Act: the protection of the American labor market

from unfair competition. Without cost to the taxpayer, this

could encourage private industry to seek ways of providing

training to unemployed and underemployed American workers. We

strongly support these provisions in H.R. 2448 and S. 358.

All three bills provide new visa categories for those foreign

entrepreneurs seeking to invest in job-creating enterprises in

this country. S. 358 and H.R. 2448 both provide conditional

8

41

residence for such aliens who must establish two years later that

their investment continues to meet the requirements of the

statute. We strongly support both the creation of the new

category and the conditional residence provisions. We believe

that this constitutes a small but significant step in improving

our economy. While we are particularly enthusiastic about those

provisions of S. 358 which target rural and urban areas of high

unemployment for special consideration, we recognize that there

may be problems in determining how to accord such special

consideration.

We take no policy position with regard to the provision in H.R.

672 which creates a special independent immigrant category for

retirees. This Department defers to other agencies such as the

Treasury Department and the Department of Health and Human

Services as to what effect the admission of such aliens might

have on our social security, medicare, and similar support

systems.

The Administration would like to see the adoption of a four-year

pilot program permitting the entry of a limited number of

selected immigrants. These immigrants would qualify for

admission by practicing an identified Nshortagem occupation And

by possessing a baccalaureate degree 2r two years of training in

a trade. Successful applicants would be under forty years of

age. Qualified immigrants meeting the education, training and

age requirements would be selected for entry in this category on

the basis of a lottery administered by the Immigration and

9

42

Naturalization Service and funded by a user fee. Prior to

completion of the fourth year of this program, it would be

evaluated as to whether it would be continued.

NATIONAL INTEREST IMMIGRANTS

Unlike the other three bills, H.R. 2646 is rather limited in

scope. This bill, introduced by Congressman Smith, embodies an

Administration proposal. It addresses a particular problem: the

inability of the United States to issue visas to certain aliens

presumptively or otherwise ineligible for admission as refugees,

but whose admission is deemed to be in the national interest

based on foreign policy considerations. The bill sets aside up

to 30,000 special immigrant visa numbers annually for this

purpose and provides appropriate safeguards to prevent abuse of

the category. The Administration strongly supports enactment of

this legislation as a most practical way of dealing with a

continuing problem, such as that presented by Soviet and

Vietnamese emigrants. We look forward to working with the

Subcommittee to approve this legislation.

NONIMMIGRANT WORK VISAS

While the Administration believes that efforts should be

concentrated on reform of the legal immigration system, we would

also be pleased to address changes to provisions for nonimmigrant

work visas at a later date. Modifications are necessary to

address the numerous problems the Department encounters in

administering the existing temporary worker classifications.

10

43

My comments today have dealt only with major areas of concern

with regard to legal immigration reform. Since this legislation

would make substantial changes in significant provisions in the

legal immigration laws, the Administration urges that careful

consideration be given to the comments, suggestions, and

recommendations which will be included in the detailed analyses

of the bills.

This concludes my prepared statement. I will now be pleased to

answer any questions you may have.

11

44

Mr. MORRISON. First, if I could just, Commissioner, focus on theoverall position that you are taking, that you do support some in-creases in current levels of immigration, do I understand that cor-rectly from your testimony?

Mr. MCNARY. Yes, Mr. Chairman, that is correct.Mr. MORRISON. And is there a number attached to that state-

ment at all?Mr. McNARY. Well, we are supporting the cap of 630,000.Mr. MORRISON. And are you testifying that you want such a cap?

Our current system doesn't have a cap. It is the addition of variousbuilding blocks, some of which are capped and some of which arenot, and the Senate bill imposes a specific cap on top of all of thatand then some complicated floors as well as ceilings. What positionare you taking with respect to those details? Are you saying thatyou want a cap, or just that 630,000 as a number is something thatis within the reasonable level of increases that you find acceptable?

Mr. MCNARY. We are supporting S. 358 substantially, Mr. Chair-man. That does carry a floor, but in general I suppose there is noparticular commitment to 630,000. It is something that has beenset forth, and in general we are supporting S. 358.

Mr. MORRISON. And you also are supporting the concept of an ex-panded employment-based system of some sort. Obviously I under-stand that you are fundamentally supporting at this point theSenate bill, but you think the idea of employment-based admissionsmakes sense, on a greater level than we have currently under thethird and sixth preference?

Mr. McNARY. Yes, sir.Mr. MORRISON. Now I am trying to understand whether you and

the State Department are in a different position about the fifthpreference. Mr. Lyman's testimony is that he essentially doesn'tsee any need for a change in the fifth preference, and you said theemphasis should be more on those closely related than those moredistantly related. Are you proposing a change in the fifthpreference?

Mr. MCNARY. Yes. Well, we are proposing additional visas forthe second preference.

Mr. MORRISON. So what that statement means is, you are for ex-panding the number under second preference, as opposed to re-stricting the rules or the numbers under fifth preference?

Mr. MCNARY. I don't think so, Mr. Chairman. I believe that ourposition is and would have to be that that would necessarily meanless visas in the fifth preference, to be moved to the secondpreference.

Mr. MORRISON. So you want to move them from fifth to second?Mr. McNARY. Yes, sir.Mr. MORRISON. Why is that? I mean, what is driving that deci-

sion? In other words, why do you think it is a tradeoff? What is themagic number, the empirical magic that would cause you to say,"In order to increase second preference, we will have to take itfrom fifth preference," as opposed to just, "Well, we will increasesecond preference because we think that those backlogs ought to becleared more expeditiously?"

Mr. MCNARY. I don't know that it is a matter of magic numbers.I think it is a matter of concept, in that we are supporting the nu-

45

clear family and there is a backlog. We can accomplish more by in-creasing the visas in the second preference and recognizing, withthe fifth preference, that we just can't accommodate everyone whowants to come to this country.

Mr. MORRISON. Well, I guess that any number is, in some sense, ashot in the dark, but I wonder if you would comment on the differ-ence between 630,000 and 750,000, for instance, as numbers in myproposal. Our projection of the numbers that would come in underall of the categories is approximately 750,000, including a provisionwith respect to the second preference which you have expresseddisagreement with, and that is allowing immediate entry but phas-ing in those immediate entries for those who are already in thebacklog. Does the Service have something specific to say about thatextra 120,000 admissions per year, that that will have some par-ticular impact that we should be aware of?

Mr. MCNARY. Mr. Chairman, we don't have anything to say atthis time. We will. I haven't had the opportunity to digest andreview your bill. I know that you are knowledgeable and thought-ful, and I want to do that before commenting on the difference innumbers.

Mr. MORRISON. Yes. Well, we are going to try to schedule an op-portunity for you to come back and talk about Mr. Schumer's billand my bill, and more about these bills, if you choose to. I wouldjust urge that there are two things going on here.

One is the concept of whether there ought to be an overall nu-merical cap, as opposed to our kind of building-block system thatwe currently have, and the other is whether there is any particularvirtue to a specific number. I think those are two different ques-tions, and I think that it would be useful, as you analyze the otherbills and as we come back again, for you to comment on those astwo separate matters and why you feel more or less strongly aboutone or the other.

The gentleman from Texas.Mr. SMITH of Texas. Thank you, Mr. Chairman.Ambassador Lyman, I appreciate your comments on H.R. 2646.

To me, one of the attractions of that particular bill is that it is notnation-specific. It does not put one group at the head of the line tothe disadvantage of others, and it seems to me that our policyneeds to be consistent and evenhanded and not show favoritism.Would you agree that that should be our policy in those matters?

Mr. LYMAN. Yes, Congressman, and in the particular legislation,H.R. 2646, we are trying to respond to special humanitarian consid-erations. That in any one year may involve one country much morethan another, but it allows the President, in consultation with theCongress, to determine where those needs are.

Mr. SMITH of Texas. It gives a little bit more flexibility, as well.Commissioner McNary, a couple of questions: One, did I under-

stand you correctly to say a few minutes ago that you did support acap on immigration, when you were referring to legal immigration?

Mr. MCNARY. We support, and it is in my testimony, the 630,000that is in S. 358.

As to the concept of a cap, I don't have an answer to that.Whether a cap or a piercable cap is the way to go is something Ithink this committee is going to have to decide.

46

Mr. SMITH of Texas. You don't have a position on that right now,then?

Mr. MCNARY. No.Mr. SMITH of Texas. In regard to legal immigration policy, do you

think that we can devise a comprehensive legal immigration policywithout getting better control of the illegal alien problem that wehave?

Mr. McNARY. Yes, I think we can. Certainly they go hand-in-hand, but our legal immigration system needs to be revised and re-formed and I think it can be improved. I understand what you aresaying, that how are we going to know what the total numbers arecoming into this country until we get a handle on illegal immigra-tion? I believe that we just have to give IRCA some time and see ifthat is going to work, but I believe we can address legal immigra-tion at this time.

Mr. SMITH of Texas. Do you feel that illegal immigration is aproblem?

Mr. McNARY. Yes, sir.Mr. SMITH of Texas. And does it have to be part of the mix? Does

it have to be part of the picture of dealing with legal immigration?Mr. McNARY. Well, I think they work in tandem but I don't be-

lieve that we have to. address reform measures, one dependentupon the other. I think they can be addressed separately.

Mr. SMITH of Texas. What percentage of individuals in Federalprisons today are criminal aliens?

Mr. MCNARY. I am told approximately 20 percent.Mr. SMITH of Texas. Do you have any idea what the number

would be, what that 20 percent would equal in real numbers?Mr. MCNARY. No. It would be a lot.Mr. SMITH of Texas. Let me see if we are getting that from the

back. Do you have an answer?Mr. McNARY. We will find that figure and supply it for you.Mr. SMITH of Texas. That figure, 20 percent, by the way, is

roughly five times their proportion in the population as a whole.Let me ask one last question, and that is that the Senate bill,

Kennedy-Simpson, prohibits the giving of Federal benefits to illegalaliens. That provision is now found in Kennedy-Simpson. Wouldyou recommend that the House include that provision in any legalimmigration bill that we craft?

Mr. McNARY. Would you state that again?Mr. SMITH of Texas. Under the Kennedy-Simpson bill that has

passed the Senate, there is a provision in that bill that prohibitsFederal benefits going to illegal aliens. Would you favor that provi-sion for any House bill that would emerge about legal immigra-tion?

Mr. McNARY. Yes.Mr. SMITH of Texas. Thank you, Mr. Chairman. I don't have any

other questions.Mr. MORRISON. The gentleman from New York, Mr. Schumer.Mr. SCHUMER. Thank you, Mr. Chairman.My first few questions are to Mr. Lyman. It is on a related sub-

ject, since you spoke about the special immigrants. I have beenvery concerned about reports from Moscow about direct flights, in-

47

creased anti-Semitism in the Soviet Union, et cetera, so I have afew questions I would like to ask you.

First, the articles in the New York-Times and other papers seemto indicate that direct flights are pretty much out, as far as the So-viets had stated. Did the Soviets give you any window, any timeta-ble, any concern, any notion that things might change?

Mr. LYMAN. Most of these discussions, Mr. Congressman, havegone on between the Soviet and the Israeli Governments. We havenot been given any particular timetable in which that decisionmight be changed. There are, however--

Mr. SCHUMER. What is your view? Are they immutably lockedin?

Mr. LYMAN. I don't think they are immutably locked in. I thinktheir decision was influenced by the controversy that arose overthe possibility of Soviet emigrants settling in the West Bank andthe outcry that that produced. Perhaps, as that issue is developed,perhaps their position will be modified.

Mr. SCHUMER. It was not simply in response to the campaign bysome of the Arab countries that, wherever these people are settled,that it is a danger to them? I mean, I have seen the statementsthat some of the countries have made, and they don't seem tomake the distinction very much between where the immigrants aresettled. They just don't want them. J I

Mr. LYMAN. Everything I have seen is that the Soviets intend tocontinue to allow the liberalized emigration that they have started.

Mr. SCHUMER. What leverage do we have, if any, to try and getthe agreement that had been virtually worked out between Aero-flot and El Al for direct flights?

The reason I feel this so strongly-and I will get to this in aminute-is it is estimated that three times the number of peoplewould come out if there were direct flights, than the present situa-tion where emigrants and-they have to find their way, to Bucha-rest and Budapest to leave. Tell me if you agree with that. Second,there have been reports, and I have seen a few that have just beencompiled, of serious increases in anti-Semitism in the Soviet Union.

So my three questions are, one, would direct flights greatly in-crease the number who came out? What is your view of the statusof anti-Semitism in the Soviet Union? Three, what pressures canour Government exert to get this agreement consummated and getthe planes flying?

Mr. LYMAN. I really don't have a specific answer to the numbersrelative to direct flights. There are alternative ways, including theones you mentioned and other ones that are being considered, so Idon't have exact figures. Obviously it would facilitate themovement.

Mr. SCHUMER. It is true, just on that question, that when weclosed Rome and the Rome processing center, that that was basedon the fact that was told to me by you and other State Departmentpeople-maybe it wasn't you, but certainly other State Departmentpeople, I remember Under Secretary Eagleberger-that directflights would occur within a short amount of time.

Mr. LYMAN. Let me correct the record somewhat on this.Mr. SCHUMER. Go ahead.

48

Mr. LYMAN. We made our decisions on the Vienna-Rome pipelineand improving processing in Moscow, not based on the implicationsfor emigration to Israel. We did it to improve and increase theprocessing to the United States. We were encouraged by the negoti-ations that were going on in terms of the general process of free-dom of emigration, but it was not a premise of our own decisions.

To answer your second question, we also are very disturbedabout the signs of anti-Semitism. It is of great concern. It has beenwritten about now in the press, et cetera, and it has been raised inour conversations with the Soviet Government, and I think it is amajor factor in the increased applications for immigration that weare seeing, as well as Israel and other countries.

Mr. SCHUMER. Right.Mr. LYMAN. Now as to the question of leverage--Mr. SCHUMER. Just let me-and I'm sorry-but just to follow up

on that second question, have we asked the Soviet Government?Mr. Gorbachev has been somewhat silent-not "somewhat," strike"somewhat"-silent on this issue. As I understand it, there havebeen very few of the Soviet leadership who have simply spoken outagainst anti-Semitism. The emigrees and others in the SovietUnion say that speaking out would be very important because ev-erything is in such a state of flux. When Pamyat and these otherorganizations do what they are doing, no one is sure if this is OKor not OK, et cetera. Have we asked the Soviet Government, inwhatever diplomatic way is appropriate, to speak out on this issue?

Mr. LYMAN. Yes.Mr. SCHUMER. What was the answer?Mr. LYMAN. I don't know if they gave us a specific answer at the

time, but we have made this point more than once.Mr. SCHUMER. OK, and finally the third, if you could just answer

the third question.Mr. LYMAN. I think that, first and foremost, we have been en-

couraging and pressing the Soviet Union to continue its liberaliza-tion of emigration. A very important law is up now for final pas-sage, and we want to see that law passed which will put into finalform the freedom of emigration. We think that is criticallyimportant.

Mr. SCHUMER. So do I.Mr. LYMAN. We have also made clear the distinction, on the

point you have made, which is the distinction between the right toemigrate, and indeed for people to emigrate to Israel, and the set-tlement on the West Bank which we have come out against also.We have made that distinction very important.

We think, in terms of the specifics as to how the arrangementsought to go, that the negotiations going on between the Israel Gov-ernment and the Soviet Union may be the best way to address thisfor the time being, and those discussions continue.

Mr. SCHUMER. So, in sum, you feel at this point that pressurefrom the United States or the State Department will not help?

Mr. LYMAN. Additional pressure I don't think will help.Mr. SCHUMER. Thank you, Mr. Chairman.Mr. MORRISON. For the information of the subcommittee, we will

be called back into joint session shortly to hear the remarks of thePresident of Czechoslovakia. We have to make a decision on wheth-

49

er we are going to proceed with the hearing or whether we aregoing to take a break.

I am prepared to go either way. We do have a hearing at 1o'clock, jointly with the Education and Labor Committee, with theLabor Department, so that we are operating under some time con-straints. I don't know. The gentleman from Texas expressed thehope we might take a break. If people are here and want to contin-ue, and don't plan to go to the floor, what is the pleasure of themembership?

Mr. MCCOLLUM. I am here and I would like to continue, at leastfor my questions.

Mr. MORRISON. I think then we will, if there is no objection toour continuing, continue. Members that wish to go, we will keepgoing, and when and if they return, assuming we are still going,they can ask questions at that point.

The gentleman from Florida.Mr. BERMAN. It is safe to say that we will be going. One would

not risk not having the hearing continuing when one came back, Ithink.

Mr. MORRISON. One can make no commitments as to how longmembers will ask questions.

Mr. BERMAN. But a judgment of a typical hearing of this subcom-mittee in the recent--

Mr. MORRIsON. Oh, but this is a new year, however. You neverknow.

[Laughter.]Mr. MORRISON. The gentleman from Florida.Mr. MCCOLLUM. Thank you very much, Mr. Chairman.Mr. MORRISON. Mr. Berman has waived his right to question.[Laughter.]Mr. MCCOLLUM. I want to be sure of these legal technicalities

with regard to rights. You have to listen very carefully.Mr. McNary, I want to pursue some of the questions that were

raised in your testimony and in some of the earlier questioningabout the immediate family relatives. I am interested particularlyin seeing if we can put some data on the record that is sort of im-plied but not in detail here in your testimony.

You say that under the House bills, almost overnight, if we con-vert the second preference to immediate relatives, the vast majori-ty of the 400,000 second preference visa applicants currently await-ing quota numbers would be immediate relatives. They would beimmediately brought in, plus most of the immediate relatives legal-ized under the provisions of the Immigration Reform and ControlAct of 1986 would be come eligible for immediate issuing of immi-grant visas.

Do you have any idea, any estimates of how many people we aretalking about who are the immediate relatives legalized under theIRCA Act? You know, we are talking about 400,000 under thesecond preference right now. What kind of numbers are we talkingabout in addition to that? -

Mr. McNARY. Well, we are talking about 1.5 million under IRCA.We have roughly 20 million green cards out.

Mr. MCCOLLUM. That sounds like a lot of people.

50

Mr. McNARY. That must be with families. It is 7.5 million,actually.

Mr. SCHUMER. Only 150,000 people but 20 million green cards.[Laughter.]Mr. MCCOLLUM. The data over there is from Schumer & Co.The point is, though, that you are talking about a larger group

by quite a few numbers, at least multiples, than simply the 400,000that are backlogged in the second preference, who would becomeimmediately eligible under the immediate relative category if wepassed a law changing it in the fashion that is suggested by someof these bills. That is correct.

Mr. McNARY. Yes, sir.Mr. MCCOLLUM. I am also interested in obtaining some further

amplification and clarification on your comments regarding thechanging of the fifth preference. I am a little confused about that,and I don't think we ought to let the record go without it beingvery clear what the administration is proposing in that regard.

You are talking about reducing some of the visas assigned to thefifth preference, and you say during fiscal year 1987 only 34 per-cent of fifth preference visas were issued to brothers or sisters ofcitizens, while 66 percent of them were issued to immediate familymembers of these brothers and sisters-that is, brothers-in-law,nieces, nephews, those sort of folks. Now are you envisioning thatwe whack away, somehow, in whatever law we pass, at that 66 per-cent of the brothers-in-law, the nieces and the nephews? I mean,that seems to be what you are implying here when you say thatthe reduction of fifth preference ought to be where we gain some ofthe numbers for new second preference or for immediate relatives.

Mr. MCNARY. Yes, sir. We believe that it is more important tofocus on the nuclear family and the immediate family relatives,rather than these distant relations.

Mr. MCCOLLUM. Well, would you propose we specifically writethat in the law, or give you at INS discretion, or how would we goabout doing that?

Mr. MCNARY. Well, you could control the numbers that are avail-able in the fifth preference and just move those numbers to thesecond preference. That would take care of it, by and large-oreven eliminate the fifth preference.

Mr. MCCOLLUM. Well, the thing maybe I am not clear on-andmaybe that is what we would be doing under this- would we takethe 34 percent that are issued currently under fifth preference tobrothers or sisters of citizens and move them to second preference?In other words, you want to put some emphasis on the brothersand sisters of citizens. Are you proposing we move out of fifth pref-erence those who are brothers and sisters of citizens? See, I am notclear on how--

Mr. MCNARY. I guess we are-you know, these are very nebulousnumbers, but no, I suppose that offhand we would move the 66 per-cent that are going to brothers and sisters-in-law to the secondpreference, but we are not locked into any particular numbers.

Mr. MCCOLLUM. In other words, it is a concept you are express-ing rather than any specific proposal. I want to be sure of that.

51

One other thing, you only allude again in a vague way to it, butam I to gather that you don't care much for the point system thatis in the Senate bill?

Mr. McNARY. Yes, that is the administration's position.Mr. MCCOLLUM. OK, and I understand, though it is still not for-

mulated in detail, you have some proposal in the works, yet tocome to us, perhaps, as an alternative to this. Is that correct?

Mr. McNARY. That is correct.Mr. MCCOLLUM. We will be waiting on it with interest. Thank

you very much, Mr. McNary... Thank you, Mr. Chairman.

Mr. MORRISON. The gentleman from California, Mr. Berman.Mr. BERMAN. Thank you very much, Mr. Chairman. I have ques-

tions in a number of different areas. Let's see how many I can getout in this period.

I would like to follow up again on this fifth preference issue. Iam just not clear on what the administration's position is. I heardMr. Lyman indicate that the administration does not support achange either in the fifth preference or in the definition of fifthpreference. Mr. Lyman, perhaps you want to clarify that. And wereyou speaking for the administration or just the State Department?

Mr. LYMAN. No, I think we are all together on this.Mr. BERMAN. It doesn't quite sound like that.Mr. LYMAN. There are two points that are related: Not to shift

the category of spouses and minor children of legal resident aliensto the unlimited category, keeping that in second preference; and,second, a reduction, as the Commissioner mentioned, in thenumber, the percentage of available numbers from fifth preferenceto second preference, so that one would increase the numbers avail-able for second preference by something of a reduction in those forfifth preference.

Mr. BERMAN. All right, so then you are both saying, "We aren'tasking for a change in the definition. Just take numbers away fromthe fifth preference, shift them to the second preference." That is away to deal with the backlog, rather than this idea of taking imme-diate family, spouses and minor children of second preferencepeople, and giving them immediate petitioning rights.

Mr. LYMAN. That is correct.Mr. BERMAN. But is that really, when you are thinking through

it, a rational position? Wouldn't it be more straightforward to say,"We want to limit the definition of fifth preference," because if youkeep the same definition and then limit the numbers, you are notmaking any of the distinctions Mr. McCollum mentioned betweennephews and sisters-in-law and brothers and sisters. You are notdrawing any priorities within the fifth preference.

Ar m't you indirectly trying to do that which some people on thissubcommittee and some people in the Congress have been trying todo directly, which is to change the nature of the fifth preference?And if so, why not come right out and do it, propose it?

Mr. LYMAN. May I ask Mr. Ogden to respond?Mr. OGDEN. Well, Mr. Berman, the only problem with changing

the definition of fifth preference at this point would be, what doyou do with the people already on the waiting list? If you are goingto grandfather them in -

52

Mr. BERMAN. Wait, wait, wait. You are going to reduce the num-bers. You are talking about shifting numbers. You are talkingabout in some countries very, very lengthy waiting lists. Limitingthe numbers is going to extremely extend those already heavilybacklogged preferences. I mean, this is not coming out of concernfor the backlogged people, to take the numbers away from the fifthpreference, is it?

Mr. OGDEN. No, sir, it is not coming out of concern for the back-log. The backlog is there. It is, at one point, 5 million now. It willtake decades to clear it out at present levels.

Mr. BERMAN. Centuries, under an effort to shift numbers.Mr. OGDEN. It may take a little longer under-right.[Laughter.]Mr. BERMAN. But the problem-well, I will just make the point

that in reality, when you say we want to take numbers from fifthpreference to shift into second preference, and then affirmativelystate the point that we don't want to change the definition of thefifth preference, in reality you are, perhaps not even in the mostrational fashion possible, affecting the fifth preference very dra-matically, even as you say you don't want to change the definitionof it, and in a way that may not be the most sensible way becauseit doesn't deal with the most compelling priorities even within thatpreference.

I will just leave that at that rhetorical point, and ask you tosearch your souls, but on the second preference I do think it is im-portant to reiterate a point that the chairman made earlier. Hisproposal with respect to second preference, immediate family rela-tives, phases in. You have reserved comment on that specific pro-posal. Phasing in would have a different impact, in terms of an im-mediate rush of numbers, than the proposals that Mr. Fish or Ihave introduced.

Isn't it fair to say also, though, that a large number of the secondpreference numbers and people who will be in those second prefer-ence numbers are people who you have, I think, very sensitivelyand appropriately dealt with in enunciating a new family unityand family fairness policy? They are people already in this country,large numbers of them, so that any effort t.o discuss numbers hasto take into account the fact that many of these people are alreadyhere.

Let me ask you to respond to that one, and continue on my nextround of questions.

Mr. McNARY. I think that is true.Mr. BERMAN. So that any number, any numerical calculation of

new immigrants, would have to take into consideration to someextent that a large number of the second preference people are al-ready here.

Mr. MCNARY. Well, they are already permanent residents.Mr. BERMAN. Well, no. The second preference people, the spouses

and minor children of permanent resident aliens, in many casesare people who are here in undocumented status.

Mr. MCNARY. Yes.Mr. BERMAN. As recognized in your family fairness policy, in

part, and in a variety of other categories, as well.Mr. McNARY. Yes, that is true.

53

Mr. MORRISON. The gentleman from New York, Mr. Fish.Mr. FISH. Thank you, Mr. Chairman.Ambassador Lyman, I would like to start out by congratulating

you on the steps that you have taken in the last several months toclear up this backlog of Soviet Jewish refugees outside of the SovietUnion, and also for the position you and the Department aretaking with respect to prospective forced repatriation in SoutheastAsia. It is very commendable.

While we are at it, Commissioner, I would like to commend foryour actions in granting spouses and children of legalized aliens de-ferred deportation with a work authorization and ultimately theability to adjust. It has been a matter of great concern to me for acouple of years.

Commissioner, on page 3 of your testimony you deal with thecurrent level of immigration. I would just like to clarify what weare talking about. I gather that the current level of immigration tothis country is approximately 490,000. This is numerically limited,numerically unlimited, no cap, not counting refugees. Is that cor-rect?

Mr. McNARY. That is correct.Mr. FISH. And what you are proposing is, that goes up to 630,000,

again, numerically limited, unlimited, no cap, excluding refugees?Mr. McNARY. Yes. I misstated earlier. The administration is sup-

porting the pierceable cap.Mr. FISH. The what cap?Mr. McNARY. The pierceable cap as it is set forth in S. 358.Mr. FISH. A pierceable cap?Mr. McNARY. Pierceable. There is no limit on the admission nf

immediate relatives, and yet there is the floor of 216,000, so tha.teventually under the provisions and the terms of that bill it couldexceed 630,000.

Mr. FISH. Good, so you are avoiding the risk of the numericallyunlimited gobbling up all the available numbers.

On the Presidential waiver authority, on the next page of yourtestimony, you talk about this in reference to the per country limitof 20,000. Some have proposed raising that per country limit to25,000. Do you have any position on that?

Mr. McNARY. We don't have a position.Mr. FISH. On this question that we have been laboring here, but I

think is worthwhile since it is a matter of great interest to us, thesecond preference, you have stated that the administration opposesthe numerically unlimited admission for immediate family of per-manent residents. One of the reasons you gave was that this woulddiscourage naturalization.

One of the ideas I picked up from your predecessor and put inmy bill was to reduce the period of time from 5 years to 3 years,under which you become eligible for naturalization. It seems to methat other ideas could be thought of, but I agree with you, weshould do nothing to discourage naturalization in our policies. Iwould hope that as we approach this issue of the backlog in thesecond preference and what to do about it in the future, that youwill seek suggestions as to how we can encourage naturalization.

The bill by the chairman of this subcommittee, perhaps realisti-cally, as distinct from my bill, recognizes that you should have a

54

phased-in admissions of the backlog in the second preference. I askyou to look at that and not just take an opposing view-we are stilltalking about families and we are talking about enormous backlogsthat really will render them just meaningless-unless it is ad-dressed over a period of years.

I don't know if you have thought about this, so I am not going toask you to answer it now, but I would ask you to think about whatis the difference, whether historically in our laws, our immigrationlaws, or today, between the family of a citizen and the family of apermanent resident, in terms of U.S. policy? I fail to see whetherthere is a distinction. Perhaps there was historically a distinctionon the basis that people were not going to stay here; they cameover to work and then were leaving. But I would like to know ifthere is really any distinction there.

Finally, Ambassador Lyman, since my time is out, in the discus-sion about the fifth preference, I was interested in your positionthat you took. You know there is a backlog in the fifth preferencethat I attempted to address in my legislation. I think you make itworse, if you take numbers away from fifth preference to give themto second, but could you just tell us briefly if we have been wrongfor the last several years in thinking that there was this problemwith the fifth preference including married and unmarried broth-ers and sisters, that there was this enormous potential for growthof new family structures that are unrelated to the sponsoringfamily?

Mr. LYMAN. There is, of course, an enormous backlog. Over thetime that people wait, often people by the time their numbers comeup could be married, that they weren't at the beginning. I mean,there is a long waiting period here.

In our position of reducing somewhat the percentage of fifth pref-erence and emphasizing second, we realized that we weren't ad-dressing the backlog question. Obviously not. It would stretch it outsomewhat, even more. The question was, where do you want to ad-dress the backlog the most, and our feeling was that we wouldrather address the backlog on second preference and thereforesomewhat reduce the numbers on fifth preference. It does not solvethe fifth preference backlog problem.

Mr. FISH. Have you ever thought of, in view of this long list andthe long length of time in the backlog, of having our missions incountries which have a high fifth preference backlog simply sendout a notice to people who have been on the waiting list and ask ifthey are still interested, so we could have a firm figure as to whatwe are talking about?

Mr. LYMAN. I will ask Mr. Ogden to address that.Mr. FISH. I mean, some of these brothers and sisters might well

have given up by now.Mr. OGDEN. Mr. Fish, last year we did ask all of the high-volume

posts that are currently processing oversubscribed fifth preferenceapplicants to give us a readout on their waiting lists, and the resultwas that without exception the posts felt that 90 percent of thepeople on their waiting lists were serious applicants.

Mr. FISH. Ninety percent?Mr. OGDEN. Ninety percent, at least 90 percent. In some

countries--

55

Mr. BERMAN. Say that again. Ninety?Mr. OGDEN. Ninety percent. We did send a letter to the commit-

tee with that result last year, at some point.Mr. BERMAN. What is the 90-percent figure?Mr. OGDEN. Ninety percent of the people on the waiting list are

seriously pursuing their immigrant visas.Mr. FISH. Thank you, Mr. Chairman.Mr. MORRISON. Just a comment,-as we get into these numbers: In

the absence of any real rationale for what the number is or oughtto be, other than that is what the number has been for the last 25years, it is very hard to take seriously this kind of a movement,that we have to clamp down a little bit on fifth preference.

I mean, if it is a demand-driven situation, obviously the demandon the fifth preference is overwhelming compared to the availabil-ity. If it is demand-driven, the demand on the second preference isvery large compared to what we can do.

If it is not demand-driven, if it is in some sense driven by a ca-pacity of the United States to absorb these individuals in someway, we are certainly not hearing any data on that. I mean, mostof the data that has been coming out lately would suggest that theUnited States is way under its capacity to absorb immigrants.

That is not necessarily the political wisdom out there, but itseems to be the scholarly wisdom out there for the most part, thatthere are small pockets of impact that need to be worried aboutbut the general impact of immigration on the United States is posi-tive with respect to economic growth and the like, and that immi-grants on the whole do very well here and contribute more thanthey take by a long shot.

So it seems to me that if you are going to start saying, beyondthat the Senate made a politically acceptable judgment at 630,000,that there is some substantive merit to these numbers, you aregoing to have to come forward with something more than, "Wesupport S. 358." S. 358 is a political judgment that the Senate madeunder a set of circumstances. It may be that the House wouldmake a similar judgment or a somewhat different judgment, butyou are not really helping-I mean, we are the politicians. Youguys are the ones who have the obligation of implementing thelaw, and having also some expertise at your disposal in terms ofrunning the departments.

I would hope that we would hear something more. Otherwise Ithink that you are not giving us anything on the numbers. This issort of shuffling deck chairs on the Titanic with respect to thebacklog. This is really something we ought to avoid.

Commissioner McNary, if I could just focus your attention againa little bit on this second-preference issue, let me underscore whatCongressman Fish said. In my draft I have a 2-year phase-in at thispoint, but basically the point of all of that is, I am proposing thatwe move the minor children and the spouses from second prefer-ence to uncapped, and then that we find some way to phase that inso it doesn't swamp the system. I am open to some suggestions, andI would hope you would look at that proposal in that light, ratherthan draw a line that says 2 years is too short and we are not in-terested in it at all.

56

You are using the number 400,000. Four hundred thousand is allof the second preference backlog, as I understand it. Is that right,Mr. Ogden?

Mr. OGDEN. Yes. I have a--Mr. MORRISON. Do you know, out of that 400,000, how many of

those are minor children and spouses, as opposed to children ofage, adult children?

Mr. OGDEN. Yes, Mr. Chairman. About 58 to 60 percent of cur-rent second preference immigrants qualify as spouses or children.About 125,000 applicants are now being registered annually in thesecond preference. Thus, if 58 to 60 percent of those qualified asimmediate relatives, this would add about 72,000 or 75,000 immi-grants to the IR category each year.

Mr. MORRISON. And is the backlog, the 400,000, is that a correctnumber for it?

Mr. OGDEN. Well, yes. Out of that about 235,000 would be movedimmediately into the category--

Mr. MORRISON. So the number is not 400,000. The number is235,000.

Mr. OGDEN. Two hundred and thirty-five thousand,approximately.

Mr. MORRISON. And about 75,000 a year thereafter.Mr. OGDEN. About that.Mr. MORRISON. Now, Mr. McNary, you used the number 1.5 mil-

lion IRCA relatives who are undocumented but who are covered byyour family fairness policy. Do I have that number right?

Mr. McNARY. Yes.Mr. MORRISON. Under your recent administrative order, these 1.5

million people essentially are here to stay, with work and travelprivileges. Isn't that right?

Mr. McNARY. We think you are right as to the 1.5 million beinghere. There is an estimate of another 1.5 million that would comeas a result of this change in definition.

Mr. MORRISON. There is another 1.5 million who you think wouldbe eligible to come?

Mr. McNARY. Yes.Mr. MORRISON. So that would be a concern about any kind of a

phase-in. You are saying there are another 1.5 million who areIRCA relatives who do not currently have petitions pending?

Mr. McNARY. That is correct. They are not here. They are--Mr. MORRISON. Well, I know they are not here and they haven't

applied yet, but many of them haven't become permanent resi-dents, so they haven't had a right to petition.

I wonder if Mr. Ogden has any knowledge to share on that score,on those numbers?

Mr. OGDEN. No, sir. I don't think we have seen any large surge ofpetitions, particularly in Mexico.

Mr. MORRISON. Just with respect to the 1.5 million who are here,if that is the number, they are essentially here to stay. What is it,other than fairness to those people who haven't come yet, which Iunderstand is an issue here-we sort of can get ourselves in acatch-22-other than the question of these people's right to staywho are here already, who we have granted this quasi-legal status,why is it that we-don't want them to be able to legalize? Is it only

57

because we don't want them to get ahead in line, ahead of thesecond preference people who are waiting outside the country?

Mr. McNARY. Mr. Chairman, I think that is certainly an impor-tant consideration. It seems to me that we create an incentive or adisincentive to naturalize. We tend to separate those people. Thereis no incentive to become a citizen in order to bring relatives in,and it is a difficult fine line between the two, because I believe thatnot to follow your line of thinking is to encourage violations of thelaw. No question about it. They go ahead and live here anyway. Atthe same time, if we go completely overboard and include all thesepeople in the definition, then I think we almost create a subculturewith millions of people who have no interest in naturalizing, no in-terest in mainstreaming and becoming American citizens.

Mr. MORRISON. Let me just examine that for a minute. First, thatgoes to the question of whether you change the second preferencepeople over to the uncapped. That doesn't go to the question ofwhat the reason is for the people you have given this quasi-legalstatus under the family fairness provision, why you don't wantthem to be able to have the full permit. That has nothing to dowith citizenship.

Or are you saying that you think that 5 years from now whenthe permanent residents, the IRCA people who are moving fromtemporary to permanent then will be in a position to become citi-zens-that is, if we can get administrative naturalization please sothat they could be processed in some reasonable amount of time,rather than 2 or 3 more years on top of that-that at that pointthey will then be able to get these people in immediately? I mean,is that the logic? That seems, to me, pretty tortured.

Is there some evidence, I mean empirical evidence, that this per-manent resident/citizenship distinction is a driving force for natu-ralization of a significant sort? Has a study been done on that? Dowe know that is true? There is a slender reed we have here that isholding up an awful lot of weight, and if there is nothing out therebut somebody's opinion, that is a little bit of a problem.

Mr. McNARY. Well, we will look into that to determine some-thing more substantive, but I think it is fairly certain that if youbroaden that definition, that there are going to be some definite re-percussions that are going to be adverse.

Mr. MoRRIsoN. Well, there are big numbers, and that is why Isaid please consider the phase-in issue, as well. There is a lot ofsupport on the subcommittee, as you know, on both sides of theaisle. Certainly Mr. Fish has been pressing this matter, and thereare a number on our side of the aisle who are interested in doingsomething about the second preference situation. We don't knowwhether we will have your support for anything, but we would cer-tainly like to have your input for those things that are more prob-lematic and less problematic to you.

Mr. McNARY. Well, the administration's position is to increasethose numbers in the second preference. We are addressing that,but by moving the numbers from the fifth preference rather thanjust unlocking the door and including permanent residents as citi-zens.

Mr. MORRISON. My last comment on that: "Unlocking the door,"those are awfully grudging terms. I mean, your very generous and

58

very appropriate family fairness expansion, this speaks to thehuman reality of these things. These are families. They are spousesand they are children, and we would all think it would be better ifthey could be together, I think. If they vwere us, we would wantthem to be together, if they were our family, and I think we oughtto keep that in mind.

Your very point about the importance of these immediate fami-lies as compared to the brothers and sisters, the nuclear family andthe importance that really argues for the position that maybe weshould have a different rule, that maybe this is the wrong incen-tive to get naturalization. Maybe there are things we should do topromote naturalization, but is keeping families apart what wereally would like to tell the world is the way that we promote natu-ralization? Aren't there more positive kinds of values that wouldpromote naturalization? I just would hope you would think ofthose.

The gentleman from Texas.Mr. SMITH of Texas. Mr. Chairman, I am going to disagree with

you on your comments a while ago in regard to the impact of immi-gration. You mentioned that you felt it was the politicians thatwanted to limit the increase in immigration and it was the scholar-ly studies that wanted to increase it.

I think it is just the opposite. I think it is the politicians thatwant to increase the numbers. Witness the bills that have been in-troduced by the members of this subcommittee, and I think it isthe scholarly, dispassionate, objective studies that in fact point outthe possible adverse impact of immigration.

Mr. BERMAN. Would the gentleman yield?Mr. SMITH of Texas. Let me finish my statement, and I will be

happy to yield.I want to say again, for instance, the Urban Institute, which is

not exactly known for its conservative principles, stated that thefact that wages of unskilled workers declined in the 1980's was"little doubt related to the presence of immigrant labor." In pointof fact, almost every study that has been conducted has pointed tothe need for greater numbers of skilled workers. In point of fact,also, the greatest number of immigrants are unskilled. It is ap-proximately 85 percent, so there is a mix, a wrong mix, a mis-match, if you will, of the type of skills that immigrants have ormay not have.

The point is here that if we are going to have to train someone,in this case train someone to fill a skilled job in the United States,to me we should spend our time and effort and money trainingAmerican workers, American citizens, rather than training an indi-vidual who is not in this country for the same job. Right now, aswe sit here, the unemployment rate among blacks is 11 percent;among Hispanics, 7 percent. To me, that is a reservoir of talentthat has not been tapped and should be tapped. It is a great poten-tial, and if we are going to train individuals, we should be trainingthose individuals who need the jobs.

Another situation is that many individuals say that we need toimport more immigration because that somehow is going to makeus more competitive, but you can't have it both ways. You can't saymore immigrants are going to make us more competitive and de-

59

press wages, and at the same time say that immigrants don't havean adverse impact on wages.

It is also said that history shows that we can absorb more andmore immigrants. In point of fact, at the turn of the century whenthere were a large number of immigrants coming to this country,around 9 million during the first decade-of course, there is about10 million in the last decade of the 1980's-as John F. Kennedysaid himself, in his book "A Nation of Immigrants," we were avirgin country to a large extent. The economy was expanding morerapidly than it is today, and that is why he came out for limitedimmigration, as well.

Finally, there is the almost hard to anticipate cost of immigra-tion upon the American taxpayer. Right now we spend billions ofdollars upon immigrants and refugees. A study that was reportedyesterday said the cost to the American taxpayer is $3,100 per im-migrant. The study also pointed out that that is probably low, be-cause of the immigrants' demands on hospitals and schools andsocial services in general, such as housing.

My point is that there is a finite number of individuals that wecan admit to the United States, I believe, that we can absorb. Tothe extent that individuals need to be trained to meet the demandsof the type of jobs that are going to be required in the UnitedStates in the future, to me those individuals should be U.S. citizenswho are already in this country. We already have, unfortunately,an underclass that I think can be largely eradicated through great-er training and education, and I think that is where we should putour resources.

Thank you, Mr. Chairman.Mr. MORRISON. The gentleman from Texas, Mr. Bryant.Mr. BRYANT. Thank you, Mr. Chairman.Mr. McNary and Ambassador Lyman, I would like to ask you to

perhaps re-visit something you might have explained during myabsence for a few minutes, a few moments ago. I am curious as tothe philosophical and practical basis for your statements heretoday that the administration supports an increase in immigration.I am not sure I see why the administration has taken this position.I don't think that is a widely-held view among the public, except topromote family unification or otherwise address a humanitarianneed. Mr. McNary, could you give us the basis of that opinion?

Mr. McNARY. I think the administration supports a measure ofthe increase in immigration because of the backlogs that we find inthe various preferences, both family relationships as well as theskill-based preferences; the backlogs, the waiting time. The admin-istration believes that, especially with skill-based, that this can im-prove our economic base and our competitive position in the world.

Mr. BRYANT. Is there empirical data to suggest that there are ameasured number of people out there with particular skills thatwill fit into a particular area of deficit, skill deficit, in the UnitedStates? Or is this just a general opinion, and a general feeling thatthe administration has?

Mr. McNARY. I think it is a general concept that the skill base isemployer-driven, and that if we are going to be competitive, weneed to put American business in a position where they can get

60

people into the country that they deem necessary to be competi-tive, in a timely fashion.

Mr. BRYANT. Well, wouldn't it be better to train an unskilledAmerican, rather than to leave him untrained and increase thequota to allow someone who is skilled to come in from outside thecountry?

Mr. McNARY. I think that we should train Americans. I just be-lieve that there is a world full of talent out there, and that it is notgoing to hurt us to train our own American engineers or whateverand to look around for those who can bring something to Americanbusiness that we don't have.

Mr. BRYANT. Ambassador Lyman, do you wish to comment onthat?

Mr. LYMAN. Well, I concur with what the Commissioner said.Mr. BRYANT. I would like to ask another question, as well. Isn't

there some question about, or shouldn't there be a question raisedabout the wisdom of encouraging through the immigration policy-some of which is embodied in the Senate bill and some of Whichyou have enunciated ought to be included-the admission ofhighly-trained people from other countries, or the admission ofpeople with capital from other countries?

That is to say, isn't there a question or shouldn't there be a ques-tion raised about the wisdom of encouraging a brain drain or a cap-ital drain from areas of the world which we are going to turn rightback around and support through our foreign policies, foreign aid,and trade policies, that are designed to support, shore up thosecountries and allow them to improve? Why would we invite theircapital here and invite their well-educated people here, and thenturn right around and spend money trying to make them a socialsuccess?

Mr. MCNARY. I think that, by and large, many people are goingto leave regardless. It is not up to us. It will be there decision.Hong Kong may be the best example of a reservoir of talent thatmay be available, and I would think that some of those peoplewould be welcome here to improve our business capability.

Mr. BRYANT. Well, let's set Hong Kong aside for just a momentand come back to it. Let's take another country. Let s take Mexico,or Eastern Europe, or the Philippines, areas that we hope to seedevelop on their own, for our own benefit as well as for theirs. Whywould we want to see the physicists and the doctors and otherhighly-trained people leave there to come here for the good life,when what we want is to develop exactly that kind of a person inthose countries?

Mr. MCNARY. I think we will have both. I think that you areasking me to speculate about a fast-changing world, but I see manyof those people staying in their country, and with travel and com-munications it is probably possible to stay where you are and stillbe a part of a business, wherever it is located.

Mr. BRYANT. Ambassador Lyman, did you want to comment?Mr. LYMAN. If I could comment on that briefly, Congressman, I

think you have raised a very important point. I think in fashioningimmigration legislation, one wants to keep in mind a balance be-tween being a magnet for brain drain on the one hand, and on theother hand meeting U.S. interests and needs in a world in which

61

many people are going to be moving and in a world in which thereis a good deal of migration.

I think that kind of balance ought to be in the bill or bills thatare looked at, and I think in developing the numbers and the types,et cetera, one ought to keep that in mind. I think you have raised agood point, and as a general matter we don't want to encouragesuch massive brain drain from countries that are important to usin terms of their own development.

Mr. BRYANT. Well, then, why encourage any brain drain fromthose countries?

Mr. LYMAN. I think there are two reasons. I think, as the Com-missioner has said, there are needs in the United States and oppor-tunities in the United States, and we can benefit. These are peoplewho might move anywhere, or whose own skills are not being well-used in their own countries and might not be. I think in that con-text for the United States, which has both the opportunities andthe benefits to be gained, there is a reasonable rationale for bring-ing those people, allowing them to come here. I think the balanceis important, but there are people who are going to be moving for avariety of circumstances from their countries, or their countriessimply may not have the political and economic framework tomake good use of them.

Mr. BRYANT. Would you give me an example of the lattercategory?

Mr. LYMAN. Well, I think there are countries whose policies, forexample, have not encouraged entrepreneurship, who have notgiven opportunity to some of their own skilled people, or who outof discrimination or otherwise have not given those people opportu-nities.

Mr. BRYANT. Well, then, why don't we make this policy specificto those countries and base this on empirical data, rather thanmake it general?

Mr. LYMAN. Well, you run the danger-two reasons, one ofhaving an immigration program based on national origin, whichopens up other problems. Second, I think these situations change.Countries change policies. Countries change circumstances.

Mr. BRYANT. Well, it just occurs to me that it is the most perni-cious form of selfishness for us to encourage the most talented andeducated and entrepreneurial people in a country to leave there,where they are most badly needed, and then invite them to comehere, where we already have an abundance of those kinds ofpeople. We definitely should be about the business of training thosekinds of people. I think we are not doing a good job of that, and weshould be.

Second, I wonder if it is in our own interest to continue to drawthem out and then spend money trying to make those countriesbetter?

Third, if you are just going to be selfish about it, I think weought to be taking a look at this hemisphere. If we are going to beaddressing our own selfish needs, we ought to be looking at theenormous difficulty and need to create jobs in Mexico. Mexicocannot keep up with the growth of its population in terms of jobcreation. Inviting people in just because they have money in theirpocket is certainly not consistent with the American tradition and

62

I have serious doubts from a moral standpoint as well as from apractical standpoint, about inviting people in who have alreadyused the resources of their nation to become educated, and there-fore come here and give us the benefit of the education their owncountry paid for.

I see the red light is on. I should cease. I would like to leave oneexample with you. This policy seems strange to me, inasmuch aswe have had a very good example right on our shores, of Cuba,where all of the entrepreneurial people, all of the democraticallyoriented people, all of the people that had the education, have left.What we have seen is a 30-year reign of a communist government.It occurs to me that if those people had stayed, either because theycouldn't get out or because they were patriotic enough not to leave,it may very well be that we could have seen some changes.

I hear a colleague to my left saying they would be dead, butVaclav Havel is over making a speech right now in the Chamber ofthe U.S. House of Representatives, and he is not dead, and hedidn't leave Czechoslovakia.

I yield back my time.Mr. MORRISON. The gentleman from New York.Mr. SCHUMER. Thank you.Just to follow up with Mr. Lyman from my last round of ques-

tioning, what I am basically hearing you saying is, in terms of thesituation in the Soviet Union, there is nothing much more that ourGovernment can do. Is that unfair?

Mr. LYMAN. Well, that may not-yes. In a general sense, thereare several things. One of course is, as I mentioned in my testimo-ny, that the legislation, H.R. 2646, would allow us to expand thenumber that we could take into the United States.

Mr. SCHUMER. It wouldn't do much, though, given the numberswe have. There might 10,000--

Mr. LYMAN. Second, I think we will continue to point to thisproblem in our whole range of dialog with the Soviet-now a verybroadened dialog-the problem of anti-Semitism. As I indicated toyou, it is on that agenda.

Third, we will continue to support and encourage the liberaliza-tion of the right to emigrate, including the right to emigrate toIsrael, and I am hoping that the facilities will be worked out,frankly, to allow that to come as fast as--

Mr. SCHUMER. With or without direct flights.Mr. LYMAN. With or without direct flights. If there are alterna-

tives, then let them be worked out.Mr. SCHUMER. Do you envision any alternatives that--Mr. LYMAN. I think there are a variety of increased transporta-

tion possibilities that could be worked out.Mr. SCHUMER. Do you think the Soviets would be willing to do

that?Mr. LYMAN. I won't speak for them. I am hoping--Mr. SCHUMER. I am not asking you to speak for them. I am

asking what you think. You know more than I do about it.Mr. LYMAN. Well, I really don't know. We will have to look at

that. The issue that came up was the direct flights, and I thinkthey were rather symbolic.

Mr. SCHUMER. They were--

63

Mr. LYMAN. Symbolic, in the context of the controversy.Mr. SCHUMER. Have we started privately pursuing other means,

asking them about other means?Mr. LYMAN. I think the Israelis are pursuing--Mr. SCHUMER. But we aren't. As a country, we are not involved

in that at this point.Mr. LYMAN. No, I think because the arrangements have to be

made directly by Israel. It is better if they make them themselves.Mr. SCHUMER. Thank you.The next question I have is for, I guess, Mr. Ogden or Mr.

Lyman. It deals with the lottery programs that we have had in thepast, the OP-1 and the NP-5 programs. What advice would youhave for this committee in constructing future lottery programs?What should we keep in mind? Is there a page in that book thathas that answer?

[Laughter.]Mr. OGDEN. No. I just wanted to give you some background on

them.Mr. MORRISON. Please refer to them by their numbers, not their

authors.Mr. SCHUMER. Donnelly, and the other fellow's name I have for-

gotten. Levine, I think it was. Mr. Berman's bill.Mr. OGDEN. Let me just give you some background. We have

been dealing now with both programs for a little time and havesome experience with both. The only advice I would have, if we hadto have another program, would be that the idea of random selec-tion rather than chronological selection has a great deal of appealto use because it is administratively much easier to handle. Thatwas Mr. Berman's program, the OP-1.

Mr. SCHUMER. You mean the OP-1 program, yes.Mr. OGDEN. Yes. We had a registration period of a month. There

was no need to queue up at the front of the door, as was the case inthe NP-5. We had over 3 million applications during that period,and it was relatively easy to process those because we were work-ing in cooperation with the Post Office and we had the time. It wasa little bit more difficult on the NP--5 side.

Mr. SCHUMER. Do you see any problem with putting in fees tohelp pay for administering the program, small fees, but fees?

Mr. OGDEN. There would be some problems in terms of convert-ibility. It might cut out some countries where we don't have con-vertibility of fees, of--

Mr. SCHUMER. You mean of exchange rates?Mr. OGDEN. Exchange rates, I mean, yes. We didn't institute a

fee largely because it would have cut out some countries. We thinkit would have been administratively difficult to--

Mr. SCHUMER. You mean you can't get a Bangladesh-whateverthe unit of currency is there, into dollars somehow or other?

Mr. OGDEN. Well, it would also require opening every one ofthose 3 million envelopes and converting it, so--

Mr. SCHUMER. Oh, I see. I see what you are saying.Mr. OGDEN [continuing]. There are administrative problems with

fees, and on balance we decided that it wasn't worth the effort.Mr. SCHUMER. The red light is on.Mr. MORRISON. The gentleman from California.

64

Mr. BERMAN. Thank you, Mr. Chairman. I was going to ask Mr.Smith whether he thought the Heritage Foundation was a scholar-ly institution, but--

Mr. SMITH of Texas. I certainly think it is a scholarly institution.Mr. BERMAN. I've got my doubts.Mr. SMITH of Texas. If you are referring to the study that they

conducted, you will recall that their study that they conductedwhere they talked about increased numbers of immigrants was con-ditioned on two things: First of all, a continued robust economy,which is no guarantee unless we have a Republican President, andsecond--

[Laughter.]Mr. SMITH of Texas (continuing]. And second of all, it spoke in

terms--Mr. BERMAN. I am not sure they said that.Mr. SMITH of Texas. No, the last part was not in there, but the

first part was.Mr. BERMAN. All right. Well, there are some people who have

minds both keener and less political than those of us on both sidesof Mr. Morrison, who have concluded that immigration growth in-herently is not bad for the economy. There are tremendous disloca-tions and short-term problems and crises that develop because ofthe failure of government to adequately deal with the impacts ofimmigration in particular locations, but there is also ample evi-dence that areas of this country that have been most impacted butthose areas are not trailing other parts of this country on the eco-nomic ground. I think it is important to note that. A few of uscome from those kinds of areas.

On the question of numbers, I think it is very important for ev-eryone to understand what I think I am getting from the adminis-tration's testimony today. You are supporting an increase in immi-gration, but your increase in immigration comes solely from yourbelief in expanding some of the labor-based immigration and theindependent category immigration and investor immigration. Youare trying to fill some specific employment needs. You are trying toencourage diversity in immigration.

But, notwithstanding the repeated reference to the large back-logs as the basis for increased immigration, you are not supporting,at least at this point, any proposal which would meaningfully dealwith those large backlogs. In reality, the 630,000 figure, when youstrip everything away, and when you recognize that the group ofnewly legalized aliens under IRCA will soon become permanentresident aliens, there will be no growth in the family-based prefer-ences by virtue of the Senate bill or the administration's positionsupporting that.

Therefore, the backlogs will not get smaller; they will get larger.So I don't think it is right to cite the demand coming from the in-creased backlogs as a basis for the administration's support forgreater immigration, because the proposals the administration isendorsing or supporting and the specifics that you are recommend-ing to us will have no increase in family preference immigration,either in the near term or in the long term.

65

I don't know if you want to disagree with that conclusion. I willgive you an opportunity to, if you do, but that is what I am hearingfrom the sum total of your testimony.

Mr. McNARY. Only in part, Congressman. The second preferenceunder the Kennedy-Simpson bill we think would be substantiallyincreased. The others would not. Third and sixth preferences, skill-based, would be substantially increased, but--

Mr. BERMAN. But tell me why the Kennedy-Simpson bill will in-crease second preference immigration. As you get large numbers ofnewly legalized aliens moving into the system, why won't thosenumbers be eaten away? The only thing left will be the Senatefloor adopted amendment of the 216,000 figure, in terms of familypreference-based immigration. I don't see, unless I misunderstand.There may be a very short term, 1- or 2-year slight increase insecond preference immigration, but once you have that hard capthat is only pierceable to protect 216,000 existing family-preferenceimmigration, you are not going to get any increase. Isn't that a fairconclusion?

Mr. McNARY. Well, it is fair to say it is not going to solve theproblem, but I think that would mean increased numbers.

Mr. BERMAN. Is the administration wedded to this notion of acap?

Mr. McNARY. Pierceable caps.Mr. BERMAN. Well, I am wedded to the notion of pierceable caps,

or at least I am tolerant of them.Mr. SCHUMER. It depends on how big the piercing and how big

the cap.Mr. BERMAN. A cap that is very pierceable could be very low, as

far as I am concerned.(Laughter.]Mr. BERMAN. Last question here: Hong Kong. Would you support

a proposal which would, whatever we decide to do in the way ofcountry limits, make Hong Kong a country for purposes of immi-gration law? I guess maybe Mr. Lyman.

Mr. LYMAN. I think the analysis is that if you went all the wayup to 20,000, it wouldn't have a major impact, given the type of ap-plications backlog; if you went up to 10,000, it would.

Mr. BERMAN. Wait a second. You have to explain that one. Inother words, that would be the overall cap on an individual prefer-ence category, but does that mean you would oppose the 20,000limit? Mr. Ogden.

Mr. OGDEN. First of all, I think it would really make little differ-ence whether it was 20,000 or 10,000, because of the way thesystem works. If you will let me explain, there are now more than46,000 Hong Kong applicants currently registered. About 39,000 ofthese are the fifth preference. If there were a 20,000 annual limita-tion, the worldwide visa availability cutoff dates would be reachedwithin a few months in the third and fourth preferences. Withinabout a year, the fifth preference is also liked to reach the world-wide cutoff date.

Hong Kong preference visa issuances may approach 20,000 for 1year, but after that the worldwide preference cutoff dates wouldhold down visa issuances probably to less than 10,000. Althoughthere are 39,000 fifth preference applicants currently on the wait-

66

ing list, more than 30,000 of these have priority dates which arenot yet within the worldwide cutoff date. Thus, simply increasingthe Hong Kong numerical limitation will not assure early visa issu-ance for all applicants on the Hong Kong waiting list.

Mr. BERMAN. What about the Solarz proposal? You don't have touse the visa. The elimination of the "use it or lose it" feature ofpresent immigration law with respect to Hong Kong, what do youthink of that idea? In other words, people can obtain a visa and notcome now.

Mr. OGDEN. I think we would have serious reservations aboutthat. I think Justice would be in a position to speak to that.

Mr. MORRISON. The gentleman from Texas?Mr. McNARY. We think the special immigrant provisions would

take care of the Hong Kong situation.Mr. MORRIsON. Yes, but the gentleman's question was that Con-

gressman Solarz has proposed that Hong Kong visas be able to beopted for but not exercised until 1997, as a kind of a safety valve, ifyou will, and that was the question, whether you have a positionon that.

Mr. McNARY. No, sir, no position.Mr. MORRISON. The gentleman from Texas.Mr. SMITH of Texas. Commissioner, let me ask a question. A

while ago our chairman asked if there were studies showing thatbeing able to bring in relatives was an incentive to becoming a citi-zen, implying that there was no evidence. Isn't the subcommittee'sconcern about family reunification an indication that it is anincentive?

Mr. MCNARY. I would think so.Mr. SMITH of Texas. I don't have any other questions, Mr. Chair-

man. Thank you.Mr. MORRISON. Put that bootstrap away there, Mr. Smith.[Laughter.]Mr. MORRISON. Mr. McNary, in your testimony I found a grain of

hope that we could get ourselves together on my proposal with re-spect to employment-based admission, because down on page 9 youtalk about a 4-year pilot program permitting the entry of a limitednumber of selected immigrants, and you talk about shortages anddifferent training levels.

While that is just a hint of what you may have in mind, I wantto urge you to take a close look at the scheme that is in my bill,which is very much keyed toward trying to walk that difficult linebetween the concerns which Mr. Bryant has expressed about Amer-ican workers, and training American workers and using Americanworkers, and the reality that there are a lot of jobs going beggingin various parts of the country right now for the appropriateperson to do those jobs. American workers are disadvantaged bythat fact, too, because factories close and businesses close becausethey can't get the key personnel that they need to operate in a par-ticular place or in this country at all.

But what I found curious about this is that you would, in thiscircumstance, choose the people by lottery if you had such a pro-gram. Well, if we are going to let job shortages be filled, and wemake some definition of what a job shortage is and what kind ofjobs will be declared in shortage, why wouldn't we let the employ-

67

ers pick the people? Why would we run a lottery? I would thinkthat you would be in favor of a free market kind of approach toselection. The other two choices are lottery or government selec-tion. It would seem, among three, that employer selection ought tobe philosophically and practically right up your alley.

Mr. McNARY. Mr. Chairman, this is a new concept and it is apilot program. It would be revisited and analyzed as to its success,but it is not family-driven, it is not employer-driven. It says to theworld that, even if you don't have family connections and you don'thave an employer ready to bring you in, if you meet these certainstandards of a degree or 2 years' training in a trade, whatever, thatyou have a chance to come into this country, and then throughrandom selection these people would be considered.

Mr. MORRISON. That leaves me really confused. I happen to thinkthat there is a place for a work force-oriented part of our admissionpolicy, but it only makes sense to me if it is for a job that reallyexists, by employers that have made, either as a group or in aregion or individually, a showing that they couldn't get Americans.That seems to me the only way to walk this narrow line betweendisplacing Americans and making sure that our economy is operat-ing to the maximum possible level.

If you say, well, in addition to employer-based admissions, thirdand sixth preference, and an independent category which is somecross between a lottery and point system administered by govern-ment, then we need another system that is another lottery, but yousure don't want to expand any of-the family admissions for the im-mediate relatives of families that are here, I find that set or thatcollection of positions to be hard to understand.

It seems to me that there are two principles in legal immigrationthat I thought that we had some agreement on: Principle numberone, families; principle number two, economics, what our economyneeds. We can disagree about what the economy needs, how bigthat is, and how we protect American workers in doing it, but Ithought there was a rather broad feeling that those were the tworeasons to come in.

I would think we should try to give both of them some consisten-cy and some philosophical stature, and we could go a lot further inthis reform. I would hate to see us just sort of hanging little bau-bles on the Christmas tree of different kinds of programs we mightuse in this area, rather than agreeing on a program that we shoulduse to address the problems.

Mr. McNARY. Mr. Chairman, I don't think we are that far apartor this pilot is that much of a diversion. In my testimony I havesaid that these immigrants would quality for admission by practic-ing an identified shortage occupation, so we are talking about anoccupation where there is a shortage. It is related to our economyand to the jobs that are needed.

Mr. MORRISON. Let me just conclude by saying that what seemsto underlie this, leaving the details out, is the same thing that un-derlies my proposal, so I would hope you would keep that in mindwhen you read my proposal, and think that maybe we agree morethan the words on the page would suggest to you on first reading.

The gentleman from Texas, Mr. Bryant.

68

Mr. BRYANT. I would like to ask Ambassador Lyman and alsoMr. McNary to tell us what is the Hong Kong problem? That is, Iknow that Red China is going to take over Hong Kong here at theend of the decade, but what is the problem with that from the ad-ministration's standpoint?

Mr. LYMAN. Well, I think from the administration's point of viewthe immediate problem is the insecurity that is felt in Hong Kongbecause of the prospect in 1997 or the uncertainties related to it.Actually, I think what we would like to do is to encourage resi-dents of Hong Kong to stay, and to do that in ways that at leastallow them to believe that if things should get bad, there are alter-natives for them out there at that time, but that we don't want toencourage them to leave now in large numbers. On the contrary,we think that people should stay. I think in my testimony I indicat-ed that I saw the special immigrant legislation as a kind of an in-surance policy out there, that they knew was there but would helpperhaps reassure people to stay.

Mr. BRYANT. Well, so what specifically is your proposal for whatwe should offer them to get them to stay?

Mr. LYMAN. I think that we are looking at a variety of things,but one in H.R. 2646 allows us, in consultation with Congress, inresponse to a specific situation, to bring in people as immigrantswho might otherwise not be able to get in, either because thereweren't refugee numbers or other circumstances. That provision isthere to be used if needed, and that is one way of providing a kindof reassurance.

Mr. BRYANT. Now will those people be people that have money?Is that the purpose of the bill?

Mr. LYMAN. I think that is not the way H.R. 2646 is emphasized.It is a special humanitarian--

Mr. BRYANT. But the Senate bill is written that way, and youhave expressed a favorable opinion on that.

Mr. LYMAN. That is a different--Mr. BRYANT. Well, I am asking if you support the idea that

people who can invest $1 million in this economy should be allowedin over people that can't.

Mr. MCNARY. Yes, the administration supports that provision inthe Senate bill.

Mr. BRYANT. I don't understand the justification for that. First ofall, I am not clear as to why dealing specifically with Hong Kong isthe responsibility of the United States, inasmuch as it is not a partof our colonial heritage. It is a part of the responsibility of GreatBritain.

Second, it is not clear to me how we could justify in any respectletting someone who has dedicated his life to making a great dealof money into this country over somebody who is perhaps a Chris-tian minister or a Rabbi or someone who is a teacher or a socialworker. Can you explain to me how we justify that?

Mr. MCNARY. I don't know that I can explain it to yoursatisfaction.

Mr. BRYANT. Well, I would be happy to hear any rationale thatmeets with the value system of the American people.

Mr. MCNARY. I think that what we are doing here is not sendingout invitations, but instead we are trying to establish policy that

V

69

will control the immigration of people into our country. Thesepeople are going to leave. They are going to leave Hong Kong, andso if we establish some guidelines that will attract those who leaveinto our country as opposed to some other country, that will benefitour national interest, then I think that up front that makes goodsense.

Me. BRYANT. It sure seems to me to be a definite endorsement ofa policy that says the rich come in. I mean, what happened to"Your tired, your poor, your huddled masses yearning to breathefree?" We don't want them. We are going to ask for the rich folks,right?

Mr. MCNARY. No, we have just taken in, with legalization wehave taken in a good many that aren't rich.

Mr. BRYANT. I am talking about Hong Kong, which again I amnot sure why that area is our responsibility anyway, but if it is,why only the rich?

Mr. MCNARY. We are not talking very many numbers. We aretalking about people that are going to create jobs and really bolsterthe quality of life for everyone, rich and poor.

Mr. BRYANT. Not in Hong Kong, because they will be gone fromHong Kong.

Mr. MCNARY. Hong Kong is pretty far ahead right now. I thinkthey can-I don't want to get into Hong Kong. This country isenough.

Mr. BRYANT. Let me ask a final question: Why is Hong Kong ourresponsibility, in view of the fact that we have boat people outthere floating around from Vietnam and all kinds of problems allover the world, people that have no place to go and live? They haveno house to go to, nothing at all awaiting them, a totally hopelesssituation. Why do we have a policy to address people that do havea house to live in?

Mr. LYMAN. Well, I wouldn't want to leave the impression thatHong Kong is our responsibility. We don't see it that way. It is oneof the situations that one needs to look at, but the emphasis ofmany of our programs is not directed there. On the Vietnameseboat people, fully half of the refugees that we bring to the UnitedStates, or close to half, come from Southeast Asia. Most of thoseare Vietnamese. Protection for the people who are fleeing, the boatpeople, is a major priority of this administration.

Mr. BRYANT. I understand. Well, I understand, but you didn'tanswer my question. I can make an eloquent speech about all wehave contributed to the world with regard to allowing immigrantsinto this country, and that speech usually ends up with a questionabout why is anybody proposing that we allow more in who don'tnecessarily need a place to live.

But my question to you was, why do we have a specific policy de-signed to address the yearning of people in Hong Kong to leave be-cause they don't like the Government they are going to have at theend of the decade, in an area where we have no official responsibil-ity really, at a time when we have people that have no place to liveand are not going to have any place to live. If there is room forsomebody, why don't we make the room first for those that have noplace to go? That is a question.

70

Mr. LYMAN. I think the answer is, in looking at the range of pro-posals and legislation on the books, that it is not an either/or ques-tion. I think there are provisions in lpgislation and in immigrationand in refugee to bring in lots of people that you are talking about.This particular provision in the Senate bill which is aimed at at-tracting investors is one of several types of immigration that arebeing talked about, but I don't suppose that anybody sees that asno longer being concerned about the poor or the homeless.

Mr. BRYANT. Could you address my question about why we haveany policy at all toward Hong Kong in this regard? Why.are weeven discussing it? It is not part of our--

Mr. LYMAN. Well, I think we have a concern about the stabilityand success of Hong Kong. I think it is an important part of theEast Asian situation.

Mr. MORRISON. The gentleman from New York.Mr. SCHUMER. I have no further questions.Mr. MORRISON. The gentleman from California?Mr. BERMAN. What is the East Asian situation?Mr. LYMAN. Well, I--Mr. BERMAN. You mean 1997 and--Mr. LYMAN [continuing]. I am just saying that in the context of

East Asia and East Asia policy, Hong Kong is important. I don'tpretend to be an expert on that policy, and would be happy to getyou a statement on that from the Department, but I think our con-cern with Hong Kong is because it is an important element in theentire East Asian scene. I can get you a further statement on that.

Mr. BERMAN. Mr. Bryant's questions reminded me of an issuethat I wanted to ask about, and I don't know, maybe it is both Jus-tice and State Department: The Haitians-talk about people whodon't have a place to go, talk about people whc should meet everycriteria imaginable with respect to refugees. We have a program totry to interdict people who are leaving by boat before they actuallyget to the mainland. While we are told that these people, beforethey are sent back to Haiti and all that that means, are asked ifthey have a well-founded fear of persecution, I think out of thethousands that have been stopped, only six have ever been allowedto come ashore and assert their claims for political asylum. How, inthe context of everything that is going on and all that is beingtalked about, is that a justifiable policy?

Mr. McNARY. It is an enforcement. It is an enforcement policy.The difference with an appeal for asylum from coming across theborder at Brownsville, as opposed to being interdicted on the highseas, is that one is deportation and the other is exclusion. It ismuch more effective to interdict and exclude. However, I think youwould be surprised at some of the numbers on Haitians, and wewill supply those. There are a number of Haitians in this country,and a number of Haitians that have been legalized.

Mr. BERMAN. Oh, no, I understand. I understand that. Some ofthem are unemployed while guest workers are brought in to picksugar cane, but that is a point that neither one of you have any-thing to do with.

[Laughter.]Mr. BERMAN. But the point here is, with respect to these people,

I mean, this political asylum issue, when you talk about Hong

71

Kong and other kinds of situations, where you can have questionsabout it, there is something wrong with a program where only sixpeople are actually allowed to pursue a claim for political asylum. Iam not prejudging the claims, but just to pursue it, because all thethousands of others have been interdicted on the high seas. I justthrow that out. I don't know if you have any specific comments.

Mr. LYMAN. I think there are two or three questions. First of all,we are reviewing that whole program in light of recent develop-ments and in light of the facts that you mentioned, and we will getback to you on the results of that review, looking specifically as towhether people who do have a well-founded fear of persecution areindeed getting access to proper interview, et cetera.

Second, to look at the question of whether the process itself ismeeting the standards of screening, as it is sometimes called, as towhether people are leaving for political reasons or not, we are look-ing at that as well. I hope that we can get back to you on the re-sults of that review very shortly.

Mr. BERMAN. I guess the point is, if we want to come with cleanhands as we attack the British for the way they are dealing withHong Kong, then this is a policy worthy of review, and I am glad tosee that such review is being undertaken.

Just to refresh my memory, in response to Mr. Fish's question,did the administration take a position on the shortening of theperiod of naturalization from 5 years to 3 years?

Mr. McNARY. Not at this time, no, sir.Mr. BERMAN. You have no position on that issue. And on the

issue of the country limits, you have no position, either? Is that ap-propriate-country limits?

Mr. McNARY. Are you talking about the--Mr. BERMAN. The 20,000.Mr. McNARY [continuing]. The Presidential waiver that I testi-

fied to?Mr. BERMAN. Oh, you support an ability for the administration

to waive the country limits?Mr. MCNARY. Yes.Mr. BERMAN. Thank you, Mr. Chairman.Mr. MORRISON. The gentleman from Texas.Mr. SMITH of Texas. Thank you, Mr. Chairman. Mr. Chairman,

this time I happen to agree with your sentiments of a while ago inregard to the proposed pilot program lottery that was mentionedby Commissioner McNary. To me it simply is not good governmentpolicy to have the Government play dice with people's lives. Iwould hope that, as you suggested, we could construct a policybased upon a rationale, common sense and economic considerations-that would take into account the needs of employers in this coun-try, as I say, on a rational basis rather than resorting to a lottery-type system that unfortunately gives a lot of people false hopes andinevitably leads to far more, greater numbers of people being disap-pointed by the lottery results. Just fundamentally, I just don'tthink we ought to play dice with people's lives when it comes togovernment policy.

Thank you, Mr. Chairman.Mr. MORRISON. I would just like to follow up on the questions

that Mr. Bryant and Mr. Berman raised. Once again, you are going

72

to be back and you are going to be commenting on other proposals,and you will have additional chances to say more about what youhave said today.

You really can't tell us that you haven't made statements aboutcompetition between one group and another. You have said thatyou have to cut the fifth preference to expand the second prefer-ence because-well, just because, because of 630,000, which is just anumber that somebody picked. At the same time, when you wereasked about whether the investor numbers are coming from some-where, you say they are not. They are coming out of the air. Nowthose two statements can't be true. I don't know if you want tocomment on that, Mr. Lyman.

Mr. LYMAN. I didn't mean to say that, within some limit, thatthere weren't tradeoffs. What I meant to say is that it wasn't 1 tozero. That is all I meant.

Mr. MORRISON. Well, I mean, by creating a new category of ad-mission to the country, if you are in a cap frame of mind, it has tocome from somewhere. If you are not in a cap frame of mind, itstill comes from somewhere, but it doesn't come quite as stringent-ly from somewhere.

With respect to the Haitian situation, as you know, we have dis-cussed it. The subcommittee has had hearings. Is consideration inthis study being given to some form of program by which Haitianscan come to the United States, either by applying within Haiti orwithin the Dominican Republic or some form of special immigrantrelief to the Haitians, given the fact that Haiti is a God awful placeat this point, has gotten worse and worse, and we continue to showcompassion to almost everybody in the world with greater degreethan we do to the Haitians?

We let the Cubans in routinely. We let the Central Americans in,sometimes detaining them and sometimes not. We let the Chinesestay. We want to help the people in Hong Kong who are feelinginsecure about 1997. What about the Haitians, who are feeling in-secure about tomorrow? We don't have any program for them, andI haven't heard a word about how-I will give you your chancenow-you were going to use the special immigrant for them andthat is what you had in mind when you did that, because that isthe usual answer I get to these questions.

[Laughter.]Mr. MORRISON. But in any case, I think the point about Haiti, we

have discussed whether or not it is hypocracy to tell the Brits thatthey can't send the Vietnamese back, but we can send the Haitiansback, and I do think it is hypocracy to say that, but we don't haveto have that debate. My question is, are you looking to do anythingfor the Haitians, who really are the odd people out over and overagain in our immigration policy.

Mr. LYMAN. Yes. Although I don't want to get into the hypocracydebate, I do want to say that the Indo-Chinese situation was dealtwith, and everybody involved signed into an international agree-ment, and all we are asking is that everybody follow the agreementreached last June.

Mr. MORRISON. Yes, we fought for that agreement, and we werevery adamant that we did not want forcible repatriation, while we

73

have signed an international agreement with a government, with adictator in Haiti, that allows us forcible repatriation.

Mr. LYMAN. Well, they are in different contexts, but let meanswer your second question. Yes, we are looking at those options,though some already exist. That is, there are no restrictions onHaitians applying in the Dominican Republic, for example.

Mr. MORRISON. But there is no program. They are special, indi-vidual cases, considered in Washington.

Mr. LYMAN. Yes.Mr. MORRISON. There is no program.Mr. LYMAN. There is no program for the admission of Haitians,

no different than there are for other Central Americans.Mr. MORRISON. There are no programs for anybody but Cubans. I

mean, basically--Mr. LYMAN. No, that is not quite true.Mr. MORRISON. I mean in this hemisphere.Mr. LYMAN. No, there are. There are others, if you look at our

numbers under the refugee program, there are for, yes, Cubans.But let me just say that those options that you mentioned, particu-larly the first two, are under active consideration.

Mr. MORRISON. Does anyone have any further questions?[No response.]Mr. MORRISON. I want to thank the panel for its input. We look

forward to a return visit, and we hope that you will be able to re-spond to us on these additional proposals from Mr. Schumer andmyself in the 2-week period in which we hope we will be able toschedule another hearing.

The hearing will stand adjourned.[Whereupon, at 12:20 p.m., the subcommittee adjourned, to recon-

vene subject to the call of the Chair.]

0

27-Th5 180)