The Honorable Elaine Chao
Secretary
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

Mr. Michael Ginley
Office of Enforcement Policy
Wage and Hour Division
Employment Services Administration
U.S. Department of Labor
Room S.3502
200 Constitution Avenue, NW
Washington, DC 20210

Re: Interim Final Rule Regarding Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H_1B Visas in Specialty Occupations and as Fashion Models, and Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80109, December 20, 2000.

Dear Ms. Chao and Mr. Ginley:

I am writing to give you my comments in response to the Interim Final Rule issued by the Department of Labor to implement provisions of the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA", Title IV of Pub. L. 105_277, October 21, 1998).

In nations where the rule of law is not in common practice, it is customary - by design - for the government to make rules so complex and difficult to observe that many employers and citizens are in technical breach of the law by normal actions. Such practices vest enormous authority in bureaucratic officials to pick and choose what to enforce and against whom. As the Secretary well knows, the reason so many immigrants come to this great land is that America does not work that way.

Let me express my disappointment in the prior Administration's rush to publish these regulations in its final days so as to make them binding on President Bush and his Secretary of Labor before there was an opportunity to review the rules. Unfortunately, given the previous Administration's antipathy toward H-1B visa holders and their employers, it is clear the intent of the regulations was to impose excessive burdens on high technology employers and other businesses - and thereby lessen the use of the visas -- as part of a misguided ideological crusade against foreign-born individuals and the companies that hire them. As such, President Bush's Administration should feel under no obligation to retain such regulations, since I know that you and the President do not share the unfortunate agenda that motivated the issuance of these rules by the previous Administration.

It is my hope that you will review these interim final regulations and re-publish them to correct their many problems and thereby prevent the harm these rules will inflict on our high tech economy and America's competitiveness. The interim final regulations impose unnecessary burdens on employers, exact unrealistic requirements, and go beyond the statutory authority granted to the Department by Congress. In formulating them, the Department ignored the views of many employers and numerous members of Congress. In addition, the Department ignored the statement of Congressional intent submitted contemporaneously with floor consideration by Senator Spencer Abraham, then the Chair of this subcommittee and, as discussed below, the primary Member of Congress responsible for the final language of the ACWIA. Senator Abraham's comments constitute legislative history and as such clearly provide the ground work for the Act's implementation. (Even absent Senator Abraham's statement, there is little or no authority in statute for the micro-managing of employers and their employees that these regulations seek to enshrine.)

Senator Abraham's Comments and Explanatory Document are Entitled to Substantial Weight, as They Constitute Legislative History

It is clear that the Labor Department under the previous Administration went to great lengths to avoid using Senator Abraham's statement of Congressional intent, not for legal or substantive reasons, but solely due to an ideological predilection against employment-based immigrants and business immigration.

A review of the facts demonstrates that Senator Abraham is the de facto sponsor of the ACWIA, since he drafted the original Senate bill, participated in drafting the compromise bill, and served as the deputized negotiator in talks between Congress and the White House finalizing the final bill submitted to the House. In March of 1998, Senator Abraham introduced the American Competitiveness Act (S.1723) which would increase the cap on H-1B visas for foreign born professionals. Under his leadership, the bill passed the Senate Judiciary Committee on a 12-6 bipartisan vote and later passed the full Senate on a 78-20 vote. Since the House Judiciary was also considering a bill addressing the H-1B visa, Senator Abraham and Representative Smith met to negotiate a compromise bill. Because the compromise bill included the imposition of a fee to be paid by the employer, the compromise bill was required to originate in the House. ⁽¹⁾ Accordingly, it was incorporated into a proposed amendment drafted by Senator Abraham and Representative Smith. Before the bill could be voted on in the House, the White House issued a public veto threat and a call for fifteen changes. ⁽²⁾ Senator Abraham was deputized to negotiate these remaining issues with the White House. When the final bill was introduced in the House by Representative Smith, it constituted a compromise negotiated between Senator Abraham and Gene Sperling, the White House economic advisor. Senator Abraham's involvement in the final compromise was widely cited in articles concerning the bill. ⁽³⁾

Senator Abraham was the principal author of the bill; thus, his comments should be weighed significantly by the Department in determining legislative intent to be used in the formulation of the regulations. Statements of the author of a bill long have been held proper for consideration as showing the conditions of history of the period when the statute in question was enacted, or the mischief which it was intended to remedy, and thus as throwing light on its proper interpretation. ⁽⁴⁾ In addition, Senator Abraham's statement constitute contemporaneous comments as they were offered when the bill was up for vote in the Senate.

When determining legislative history, the Courts, particularly the Supreme Court, have followed a policy of looking to the source that will provide an accurate description of the common understanding held by the Congress at the time of enactment. The Court has traced the evolution of the statute, from early legislative proposals until enactment, with the focus on the interpretative issue in dispute. ⁽⁵⁾ The goal of the Court has been to recreate the general assumptions, goals and limitations of the enacting Congress so as to reconstruct the answer the enacting Congress would have given to the interpretative issue. Senator Abraham's comments on ACWIA serve as the best source from which to ascertain the common understanding of the Congress. Senator Abraham was deputized by both Houses of Congress to negotiate with the White House. Therefore, by entrusting Senator Abraham with this task, both the House and the Senate signaled their belief that Senator Abraham was the member of Congress who would best represent the combined Congress's intentions with regards to this bill in negotiations with the White House.

In his role as negotiator, Senator Abraham represented the Congress and, thus, he was required to go beyond his personal interests and carry out his duty to advance and promote the common understanding shared by the Congress. Senator Abraham fulfilled the task entrusted to him by negotiating the final draft of the bill with the White House. His comments should be seen as an extension of his role as deputized negotiator. His comments and the Explanatory Memorandum served to update his fellow Members of Congress of the results of the final negotiations. In this way, his comments and the Explanatory Memorandum were not meant to express his own personal views but rather to more fully reiterate legislative discussion and the events leading up to the final bill, specifically the process and the results of the negotiations with the White House. ⁽⁶⁾ Therefore, the Department of Labor should look to his comments and explanatory document to determine the common understanding of Congress in enacting this bill.

Senator Abraham's important role in guiding the bill through its various drafts also entitles his comments to considerable deference. Specifically, the Court has considered the drafting evolution of a bill when examining legislative history. In TVA v. Hill, the Court examined the drafting evolution of the bill that was adopted, including language of bills that were not adopted and drafting changes made in the conference committee. ⁽⁷⁾ Specifically, the Court has given a high level of consideration to the drafters of bills in general. The Court has even considered law professors' testimony ⁽⁸⁾ or interest groups ⁽⁹⁾ if they participated in the drafting of the bill. In addition, the Court has considered the statements of Members of Congress identified as players on the bill.1 ⁽¹⁰⁾ It cannot be doubted that Senator Abraham played a major role in the drafting of the final bill. Therefore, his statements should be given a high level of deference when determining legislative intent.

As the ACWIA's principal sponsor in the Senate, Senator Abraham introduced into the Congressional Record an Explanatory Memorandum describing ACWIA's purpose and providing a section-by-section analysis of the Act .1 ⁽¹¹⁾ The Supreme Court has held that a memorandum, inserted in the congressional record by a sponsor of legislation, which illustrates the meaning of a term used in that legislation, is a weighty gloss on the legislation.1 ⁽¹²⁾ Additionally, Senator Abraham's Explanatory Memorandum should be considered a de facto committee report. Committee reports are the most frequently cited and relied-upon sources of legislative history,1 ⁽¹³⁾ and in the Court's traditional view the most authoritative source. "A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report."1 ⁽¹⁴⁾ Committee reports are often the best evidence of bicameral agreement, either because the House and Senate reports are identical, or because a conference report explicates the chambers' resolution of differen