FAIR Legislative Update February 11, 2013
Last Tuesday, President Obama hosted separate meetings with progressive/labor leaders and business executives to gain support for a "comprehensive" immigration reform package. The purpose of the hour-long, closed-door meeting was to engage in a "dialogue" about "immigration reform and how it fits into his broader economic agenda," the White House said. (CNN.com, Feb. 6, 2013) But despite the lofty language, most political observers understand that the central reason for the meetings was to see whether unions and big business can reach a compromise on the principles of a new guest worker program. (To see the attendees at these meetings, see USA Today, Feb. 5, 2013)
In past battles over immigration reform, business leaders have demanded a new, broad-based guest worker program, while organized labor has opposed it. Maria Elena Durazo, the chairwoman of the AFL-CIO's immigration committee, summarized labor's longstanding objection to guest workers as follows: "Guest workers have no rights and no voice and no possibility of ever becoming legalized," she said. "If they protest about wages or unsafe conditions, they risk getting deported." (The New York Times, Feb. 7, 2013) But business objects to existing guest worker programs as burdensome and ineffective. "You have to go through four government agencies and often hire a lawyer and an agent," said Shawn McBurney, of the American Hotel and Lodging Association. "It's unbelievably complicated, cumbersome and expensive." (Id.)
Speaking to reporters at the White House after the meeting, AFL-CIO President Richard Trumka sounded a positive note. "It was an excellent conversation. I think we are all on the same page….We were talking about commonsense reform that has an inclusive and broad path to citizenship that allows us to bring people in and take advantage of that." (CNN.com, Feb. 6, 2013)
And two days later, Trumka told reporters that talks between union officials and the nation's biggest business lobby, the U.S. Chamber of Commerce were "going well." (The Hill, Feb. 7, 2013) He indicated that the AFL-CIO would be talking to the business group again on Thursday and Friday. "We have been working in good faith with the Chamber, and I continue to be hopeful," Trumka told reporters. (Id.) The meetings at the White House come only a week after President Obama released his plan for an amnesty bill, which notably did not include a new guest worker program.
Despite Trumka's optimism, observers still say there is significant distance between labor and business on the issue of guest workers. One idea labor supports is a panel that would use economic, industry and regional data to determine how many guest workers should be allowed in annually to do seasonal work, like agriculture. (The New York Times, Feb. 7, 2013) The number of guest workers might increase when America's unemployment rate is low and then shrink if the rate is high. (Id.) In addition, many of guest workers, after working in U.S. for several years, might be granted green cards and then citizenship. (Id.)
Business groups say they worry that such a panel would be bureaucratic and too slow to meet employers' needs. For example, Mr. McBurney of the hotel association said it would never work. "There are no experts who will know exactly what the economy will need — this was proved by command and control economies. The bureaucracy will never be able to respond to the economy. The economy is a very dynamic thing. Bureaucracies aren't so dynamic." (Id.)
Business and Labor may be running out of time to negotiate. Senator Chuck Schumer (D-NY) has asked the labor and business groups to reach a deal within weeks so that can be included in legislation being crafted by a bipartisan Senate group. (Associated Press, Feb. 5, 2013) Notably, the framework for an amnesty bill set forth by the "Gang of Eight" includes a new guest worker program; President Obama's proposal does not. And according to one Senate aide, if the labor and business can't reach a deal, senators and their staffs are prepared to draft a guest worker program themselves. (Id.) The Senate aide said that lawmakers are considering admitting between 200,000 to 400,000 guest workers annually for low-skilled temporary work, including agriculture and non-agriculture. (Id.)
House Majority Leader Eric Cantor (R-VA) delivered a major policy speech last Tuesday in an attempt to rebrand the Republican Party. Notably, with regard to immigration, Leader Cantor signaled he now supports some form of amnesty.
During the speech, entitled "Make Life Work," Cantor indicated a new-found support for granting amnesty to illegal alien minors – referred to by the pro-amnesty lobby as DREAMers. When it comes to immigration reform, he said, "a good place to start is with the kids." (Cantor Speech available at Wall Street Journal, Feb. 5, 2013; see also CBS News, Feb. 5, 2013) "One of the great founding principles of our country was that children would not be punished for the mistakes of their parents," he continued. (Cantor Speech available at Wall Street Journal, Feb. 5, 2013) "It is time to provide an opportunity for legal residence and citizenship for those who were brought to this country as children and who know no other home."
Cantor’s remarks represent a complete reversal from his previous opposition to the DREAM Act. In fact, Majority Leader Cantor voted against the DREAM Act as recently as 2010. (See H.R. 5281, Roll Call Vote #625)
In addition to voicing support for the DREAM Act, Cantor reiterated his support for increasing the number of high-skilled immigrants by stapling green cards to diplomas. Specifically, he reaffirmed his support for the STEM Jobs Act, which the House passed in November, to allow more visas to go to foreign students who earn degrees in science, technology, engineering, and mathematics (STEM fields) in the United States. (Cantor Speech available at Wall Street Journal, Feb. 5, 2013) "We will act again in this Congress, and we hope the Senate chooses to join us this time." (Id.) FAIR has opposed such legislation because it discriminates against American graduates in STEM fields and discourages U.S.-born college students from pursuing STEM careers. (FAIR Legislative Update, Dec. 3, 2012)
Although Cantor did not fully embrace the comprehensive immigration reform proposals released by the Senate Gang of Eight or the President last week, he referred to the 11 million illegal aliens as "part of the fabric of our country." (Cantor Speech available at Wall Street Journal, Feb. 5, 2013) He indicated he was "pleased" with bipartisan work to address immigration reform but mischaracterized the Gang of Eight’s proposal as making border security and employment verification "an immediate priority." (Id.) "In looking to solve this problem soon, we must balance respect for the rule of law and respect for those waiting to enter this country legally, with care for the people and families, most of whom just want to make a better life, and contribute to America," he said. (Id.)
Only after this speech, Majority Leader Cantor reiterated his support for granting amnesty to illegal alien minors, but stopped short of outright endorsing the DREAM Act. Appearing on the Sunday television show Meet the Press, Cantor said: "I have put out a proposal. I don't know what the Dream Act at this point is. What I say is, we've got a place, I think all of us can come together and that is for the kids."
Last Tuesday, the House Judiciary Committee held its first hearing of the 113th Congress. The hearing, centered on the comprehensive immigration reform debate, was titled "America's Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration."
From the hearing's outset, the impasse between the pro-enforcement and pro-amnesty Members of the Committee was clear. In Chairman Bob Goodlatte's (R-VA) opening statement, for example, he touched on the broken promises of the 1986 amnesty. "1986 was the last time Congress passed comprehensive immigration reform. At that time, Congress granted legal status to millions who were unlawfully present in exchange for new laws against the employment of illegal immigrants in order to prevent the need for future amnesties," he stated. "However, these employer sanctions were never seriously implemented or enforced. Even Alan Simpson, the Senate author of the 1986 legislation, has concluded that despite the best of intentions, the law did not satisfy its expectations or its promises."
On the other hand, Ranking Committee Member John Conyers (D-MI) went so far as to insist that illegal aliens are not actually in the country unlawfully. Telling the packed hearing room that he hoped no one used the term "illegal immigrant," he instead asserted, "they are out of status, they're new Americans that are immigrants." (Bloomberg Government Transcript, Feb. 5, 2013)
As the hearing progressed, it became clear that the pro-amnesty lobby would settle for no less than citizenship for America's 11-12 million illegal aliens. Indeed, several members of the Committee, including Immigration Subcommittee Chairman Trey Gowdy (R-SC), posed to witnesses what Chairman Goodlatte referred to as the "question of the day:" "[is there] no form of legal status that you would support short of full-fledged citizenship?"
San Antonio, Texas Mayor Julian Castro answered this question several times: "I believe that a pathway to full citizenship is what the Congress ought to enact." (Id.) But Members of the Committee did not hesitate to voice their skepticism. "We have traveled this road before. In 1986 we were told that immigration had been settled once and for all," said Rep. Gowdy. (Id.) Rep. Blake Farenthold (R-TX) echoed these concerns, asking "how do we not end up in the same situation ten, twenty years down the road if we do this again?" (Id.)
One response mentioned by the witness panel was continued border security enforcement; however, according to Rep. Ted Poe (R-TX), DHS' border efforts have been thus far inadequate. "I know that apprehensions may be down. That doesn't mean that the border's more secure, it just means that apprehensions are down. Less people are being apprehended [by agents at the border]," said Poe. (Id.) According to another witness, DHS is inflating the apprehension numbers as well. Julie Meyers Wood, speaking from her experience as Former Assistant Secretary in charge of ICE during the George W. Bush Administration, Wood explained, "Sometimes the Border Patrol would report, you know, somebody or apprehend somebody 10 or 11 times in one night, and that would all count towards apprehension." (Id.)
Jessica Vaughan, Policy Studies Director for the Center for Immigration Studies, voiced similar charges in her testimony to the Committee. "For ICE, we can look at prosecutions to gauge the volume of their work," she said. "Here again according to various federal sources, after years of increases, the numbers of immigration court filings have declined 25 percent since last year and 30 percent since 2009," and "ICE arrests, as opposed to deportations, have been declining since 2008." (Id.)
One important witness presented a dismal view of the Administration's immigration enforcement policy. Chris Crane, President of the ICE Agents' union, National Immigration and Customs Enforcement Council 118, said the agency "is falling apart." (Id.) According to Crane, prosecutorial discretion is in actuality not discretionary: "We're under orders not to enforce certain laws." ICE officers who attempt to enforce immigration laws, Crane says, are "threatened with suspensions" and even job loss. (Id.)
Vaughan also echoed Crane's criticism of the Obama Administration, especially with respect to the government's lack of workplace enforcement. "By failing to rigorously enforce the law against hiring illegal aliens, the Obama Administration, like others before, is tacitly encouraging more illegal immigration that displaces U.S. workers, causes their wages to decline, and erodes their quality of life. Judging by the record, we can expect a similar result if lawmakers sign on to another so-called comprehensive immigration reform plan that gives amnesty first in exchange for promises of enforcement that will not be kept." (Id.)
Michael Teitelbaum, former Commissioner to the Barbara Jordan Commission on Immigration Reform, also agreed with Crane regarding the Obama Administration's dismal efforts to stop visa overstays. "I don't think there have been serious efforts in the interior," he told the committee. "If you don't have interior enforcement, it really doesn't matter how good your border enforcement is." (Id.)
The Ohio Bureau of Motor Vehicles (BMV) announced recently that it will not issue driver's licenses to illegal aliens who are recipients of President Obama's backdoor amnesty program called Deferred Action for Childhood Arrivals (DACA). (City Beat, Feb. 6, 2013). DACA, created last summer by Presidential fiat, defers removal for two years of certain illegal aliens who were brought to the United States before the age of sixteen. Those who qualify can get a Social Security card and work authorization.
The BMV's decision to deny DACA beneficiaries driver's licenses is firmly grounded in law. Ohio Administrative Code states that any applicant for a driver's license or identification card must have "taken the necessary steps to ensure that they have a recognizable legal status with the United States as evidenced by the appropriate legal documents issued by the United States Citizen and Immigration Services" ("USCIS"). (Ohio Admin. Code Ann. 4501:1-1-37 (2012)). "Legal status" is used in the Immigration and Nationality Act ("INA") to describe the immigration status of those who are not in violation of the INA. (See generally 8 U.S.C. § 1101, et seq.). United States citizens, lawful permanent residents, and aliens who have been admitted by the United States government and have neither overstayed their authorization nor are in violation of the terms of their admittance are considered to possess "legal status." DACA grantees, who by definition either entered the United States illegally or were admitted legally but unlawfully overstayed their visa, cannot possess legal status as they are in violation of the INA.
In fact, the USCIS's Frequently Asked Questions website page regarding the DACA program makes this point abundantly clear:
An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence. (USCIS FAQ No. 1).
Some opponents of Ohio's decision have claimed that a federal regulation, specifically 6 C.F.R. 37.3, requires the BMV to grant DACA grantees a driver's license as the regulation defines the term "lawful status" to include deferred action grantees. (City Beat, Feb. 6, 2013). However, the regulation is expressly limited to the federal REAL ID statute and "does not affect other definitions or requirements that may be contained in the Immigration and Nationality Act or other laws." (6 C.F.R. 37.3 ). Thus, the USCIS's statement on its FAQ website page that DACA does not confer lawful status confirms that 6 C.F.R. 37.3's definition of "lawful status" has limited application.
To date, at least seventeen states issue driver's licenses to DACA recipients. Six states, Arizona, Arkansas, Kansas, Mississippi, Nebraska, and Ohio, refuse to grant DACA recipients driver's licenses. DACA recipients recently sued Michigan and Arizona for their refusal. Under pressure, Michigan this past week reversed its policy.
Last week, members of the House of Representatives introduced true immigration reform measures.
First, Rep. Diane Black (R-TN) introduced the "U Visa Reform Act of 2013," H.R. 463. Congress created the U visa in 2000 as a temporary way to allow alien crime victims to stay in the country and help prosecute their assailant. However, over time, the U visa has been manipulated to grant green cards to virtually anyone who applies — including both legal and illegal aliens. (See INA Section 101(a)(15)(U))
H.R. 463 makes several common sense reforms. First, Rep. Black's legislation reduces chain migration by ensuring only spouses and children of U visa holders are granted derivative U visas. Second, the legislation limits the crimes for which a U visa may be applied to by eliminating attempt, solicitation, or conspiracy crimes. Next, the legislation reduces the duration of the U visa to more practical levels, down from four years to the lesser of three years or the statutory period of limitation for the qualifying crime. Finally, H.R. 463 makes the U visa a true temporary nonimmigrant visa by eliminating the ability of illegal aliens to adjust status and obtain a green card.
In addition to Rep. Black's "U Visa Reform Act," Rep. Gingrey introduced a bill to permanently reauthorize the E-Verify program. Currently, the critical electronic employer verification system must be reauthorized by Congress every few years (Congress just reauthorized the program for an additional three-year period). (FAIR Legislative Update, Sept. 11, 2012) However, Rep. Gingrey's bill, H.R. 478 the "E-Verify Modernization Act of 2013," would make the program permanent. H.R. 478 would also make using the E-Verify
According to a Capitol Hill publication called The Hill, foreign governments are once again lobbying Congress to enact a broad-based amnesty bill. (The Hill, Feb. 7, 2013) Several countries that drive immigration to the United States — notably Mexico, Ireland and Central American nations — have been making their concerns known. (Id.)
One of the main reasons for the concern: remittances. Foreign nationals living and working in the United States send huge amounts of money to family members in their home countries. In 2010, remittances to Mexico totalled $22.7 billion; remittances to El Salvador totalled $3.6 billion, or about 17.4 percent of that country's economy. (Id.)
"Of course the reason embassies would be interested is these are the people who have been working and sending remittances home," commented Maryland State Delegate Ana Sol Gutierrez (D). "And because they have a legal work permit and because they're paying taxes and they have driver's licenses, they are a lot more stable — and have access to better jobs — than the undocumented."
Mexico's U.S. Ambassador, Eduardo Medina-Mora, has had "a number of meetings with the administration" that have involved immigration since he took office last month, said a Mexican official familiar with the process. He is expected to meet with lawmakers shortly as legislation begins to take form. "Probably like no other country, we are a player in this particular issue," the source said. "If we have the need to say something, we will do so, but with the utmost respect to the domestic politics."
Similarly, Ireland has long lobbied Congress for amnesty legislation. And just last Tuesday, Ireland's U.S. Ambassador, Michael Collins, discussed immigration policy with U.S. Rep. Luis Gutiérrez (D-Ill.) during a meeting on Capitol Hill. The Irish embassy described Gutierrez as a "great friend of Ireland" and added, "Ambassador Collins was delighted to meet with him for a discussion about U.S. immigration issues, on which the congressman is a key figure." (Id.)