Legislation

FAIR Legislative Update March 19, 2012



House to Vote to Expand E-2 Visa Program Today

The U.S. House of Representatives is scheduled to vote on H.R. 3992 today, a bill that would expand the E-2 visa program to include Israeli nationals. Leadership placed it on the suspension calendar, which has the effect of limiting debate and prohibiting amendments to the bill.

The E-2 visa is a non-immigrant visa program that temporarily admits foreign nationals to the U.S. to develop a business enterprise in which the alien has invested. (INA § 101(a)(15)(E))  The program, however, is restricted to foreign nationals from countries that have appropriate treaties with the United States. The legislation qualifies Israeli nationals for the E-2 visa by adding Israel to the list of foreign states granted such treaty status. (H.R. 3992 § 1; see Department of State Website for list of treaty countries)

The House Judiciary Committee passed H.R. 3992 via voice vote Feb. 28. (House Judiciary Committee Press Release, Feb. 28, 2012) In doing so, Committee members ignored the E-2 visa program’s several flaws. They include:

  • No cap on the number of visas issued.  Congress has not placed a cap on the number of individuals permitted into the country under the E-2 program. In addition to an unlimited number of principal E-2 visas, the program also provides for an unlimited number of derivative visas for spouses, children (up to age 21), and employees in a supervisory or executive capacity. (8 C.F.R. § 214.2(e)(3)-(4))  As a result, over 281,000 individuals entered the country on an E-2 visa in 2010 alone. (See DHS 2010 Statistical Yearbook, Table 25)
  • Visa holders may remain in the U.S. indefinitely. Despite the intended temporary nature of the program, E-2 visa holders may enter the U.S. for an initial two-year period and then remain in the country indefinitely by extending their visa every two years.  And, despite the fact that all temporary visas require intent to return to one’s home country, aliens may still apply for an E-2 visa even if they simultaneously apply or have been approved for an immigrant visa that puts them on a path to citizenship. (8 C.F.R. § 214.2(e)(5))
  • No minimum investment is required. Federal regulations governing the visa program do not require applicants to have invested a specific amount of money or percentage of start-up capital into a business venture. The law merely states that the capital invested must be “substantial.” (8 C.F.R. § 214.2(e)(14))  The decision whether the alien meets the general requirements of the E-2 visa is up to the discretion of the particular State Department consular officer reviewing the application.

These flaws make the program highly susceptible to fraud. Last month, federal authorities indicted a woman running a Laredo, TX financial and immigration services business for including fraudulent tax forms and false information about businesses and employees on visa applications. (San Antonio Express, Feb. 29, 2012)

Senate Dems Exploit VAWA to Increase U-Visas

According to Democratic aides, Senate Majority Leader Harry Reid (D-NV) plans to file a motion that would begin debate on the Violence Against Women Act (VAWA) this week.  (CQ Today, Mar. 15, 2012) Although VAWA was created to increase protections for women suffering domestic violence and abuse, it has become the latest vehicle for the open-borders lobby to increase visas and grant amnesty to illegal aliens.

The version currently before the Senate, S. 1925 introduced by Sen. Pat Leahy (D-VT), contains provisions that could increase the number of U-visas by 34,000. Congress created the U nonimmigrant visa in 2000 to allow aliens who have suffered substantial physical or mental abuse as a victim of domestic violence, rape, or certain other crimes to obtain temporary legal status if they help law enforcement prosecute those crimes. (INA § 101(a)(15)(U); see also FAIR Legislative Update, Feb. 6, 2012) An alien can obtain a U visa regardless of legal status, remain in the country for four-years at a time, receive work authorization, and become eligible for a green card after three years. (INA § 214(p); USCIS Website on U visas)  S. 1925 would increase the number of U visas by permitting the “recapture” of thousands of unused U visas from prior years.  (CQ Today, Feb. 2, 2012) 

Some Senate Democrats have made no qualms about using VAWA in a hotly contested election year to get more visas. Sen. Chuck Schumer (D-NY), for example, has said he wants to fast-track VAWA with the U-visa provisions so that Republicans would block it, enabling him to paint the party as anti-women. (Politico, Mar. 14, 2011) “If a party chooses to alienate the fastest-growing group of people in the country [Latinos] and the majority of people in the country, women, they do so at their peril,” Schumer said Wednesday. (Id.)

Republican leaders strongly objected to Schumer’s plan.  “Nobody opposes the reauthorization of this legislation,” said Senate Minority Whip Jon Kyl (R-AZ). (CNN, Mar. 15, 2012) He told reporters: “If you follow the Judiciary Committee work on it, the questions had to do with the additions that have been made to this bill related to illegal immigrant visas…. I really resent the implication by some of my Democratic friends that if you’re trying to improve the bill that somehow you are for violence against women. That's reprehensible.” (Id., see also FAIR Legislative Update, Feb. 6, 2012)

Republicans said they may move their own bill once the issue heads to the floor. (Politico, Mar. 14, 2011) Stay tuned to FAIR as details unfold…  

Mississippi House Passes Immigration Enforcement Legislation

The Mississippi House of Representatives passed an omnibus immigration enforcement bill, H.B. 488, by a vote of 70-47 Thursday. (Fox News Latino, Mar. 15, 2012)

The bill, entitled “Support Our Law Enforcement and Safe Neighborhood Act,” is similar to both Arizona’s SB 1070 and Alabama’s HB 56. The bill’s key provisions do the following:

  • Require law enforcement officers to determine a person’s immigration status during a lawful arrest if they have reasonable suspicion the person is an illegal alien (§2);
  • Prohibits state and local sanctuary policies (§2);
  • Prohibit illegal aliens from entering into state business transactions (§3);
  • Requires the revocation of the business license of any employer who knowingly hires an illegal alien (§5); and
  • Grants the State Board of Contractors authority to review contractor compliance with the State’s mandatory E-Verify law (§8); and
  • Authorizes the Governor to research and publish information regarding jobs that may become available by passing the Act (§ 11)

The bill provides that its provisions do not apply to nonprofit, religious, or charitable organizations who provide immediate basic and human needs to illegal aliens. (§9)

Supporters of the bill explained their motivation to pass H.B. 488.  “It's about the rule of law,” Mississippi House Judiciary B Committee Chairman Andy Gipson (R) said about the bill.  (Fox News Latino, Mar. 15, 2012) “We want to say you're welcome here, we just want you to follow the proper procedures, the proper protocols.” (Id.)

However, the Southern Poverty Law Center has told Mississippi officials it will sue the state if the bill passes. “I would suggest that just because the state can pass that doesn't mean it's a good idea,” said Mary Bower, legal director for the SPLC. (CNN, Mar. 16, 2012)

Mississippi Governor Phil Bryant’s spokesman said the Governor would not be deterred from supporting the bill by the threat of a lawsuit. (Id.)

The bill now heads to the Mississippi Senate, where it is expected to pass.

New Rule Circumventing 3 and 10-year Bar Coming Soon

U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced it would be issuing new regulations on the 3 and 10-year statutory bars to admission within days. The announcement came during a stakeholder meeting regarding the agency’s 2012 priorities last Thursday. 

Mayorkas claimed these five “strategic priorities” would “uphold the integrity” of the U.S. immigration system. They include: (1) Strengthening national security safeguards and combat fraud; (2) Reinforcing quality and consistency in administering immigration benefits; (3) Fostering organizational excellence; (4) Promoting citizenship and immigrant civic integration; and (5) Enhancing customer service and public engagement. 

While these priorities seem innocuous on their face, once Director Mayorkas elaborated on them, it became clear that they would not uphold the integrity of the immigration system as he claimed. In particular, Mayorkas announced that the Administration’s proposed regulatory change to help illegal aliens skirt the statutory 3 and 10-year bars to admission would be published within days. (See USCIS Notice of Intent, Jan. 9, 2012; see also FAIR Legislative Update, Jan. 9, 2012)

The 3 and 10-year bar was created to deter illegal immigration and marriage fraud.  It provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years.  (See INA 212(a)(9)(B)(i); 8 U.S.C. 1182(a)(9)(B)(i)) 

The proposed rule would provide a provisional waiver of these bars to allow illegal alien relatives of U.S. citizens claiming to suffer an “extreme hardship” to stay in the U.S. while seeking a permanent waiver, rather than doing so from outside the country. (See FAIR Legislative Update, Jan. 9, 2012) The Department’s proposed rule will now allow an entire class of illegal aliens to apply for hardship waivers from inside the United States—undermining the very purpose of the law and guaranteeing reentry into the country.

Director Mayorkas denied that the provisional waivers were a form of amnesty. “All we are doing is making the process more efficient and more effective,” he said. (KPCC News, Mar. 15, 2012)

Author of Arizona Immigration Law to Testify Before Senate

On Monday, Sen. Chuck Schumer (D-NY), Chairman of the Senate Judiciary Subcommittee on Immigration, announced that former Arizona State Senator Russell Pearce would be testifying before the Subcommittee for a hearing on state and local immigration enforcement efforts. (See Sen. Schumer Press Release, Mar. 13, 2012) Pearce was the chief sponsor and force behind Arizona’s tough illegal immigration law, SB 1070.

Pearce offered to testify in support of SB 1070 after Arizona Governor Jan Brewer declined Sen. Schumer’s request to appear. (See Sen. Schumer Letter to Gov. Brewer, Feb. 23, 2012; see also FAIR Legislative Update, Feb. 27, 2012) Pearce asserted that as the bill’s author, he was best suited to explain it to Subcommittee, “I know why it was written … I know every section of the bill,” he said.  (Arizona Daily Sun, Feb. 29, 2012)

Gov. Brewer declined Sen. Schumer’s request to testify last month, calling it a “publicity stunt.” (The Hill, Feb. 24, 2012; see also FAIR Legislative Update, Feb. 27, 2012) Her spokesman explained that the hearing “doesn’t look like the most productive use of the governor’s time” given that she is scheduled to testify as a witness before the U.S. Supreme Court in favor of SB 1070 the very next day.

The Subcommittee hearing, “Examining the Constitutionality and Prudence of State and Local Governments Enforcing Immigration Law” will take place on April 24. The Supreme Court will hear oral arguments in the Justice Department’s suit against Arizona over SB 1070 the following day.