Legislation

FAIR Legislative Update March 6, 2012



House Judiciary Committee Votes to Increase E-2 Visas

During a legislative markup session Tuesday morning, the House Judiciary Committee approved by a voice vote H.R. 3992, legislation that would expand the E-2 visa program to include Israeli nationals. (CQ Today, Feb. 28, 2012)

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)

Both Democrats and Republicans sitting on the Committee voiced support for the legislation, touting it as a way to boost the U.S. economy. Rep. Berman (D-CA), who introduced the bill, stated, “Israeli business leaders investing in the United States will create more jobs for American workers and help strengthen the economies of both countries.” (House Judiciary Committee Press Release, Feb. 28, 2012) Judiciary Chair Lamar Smith echoed Rep. Berman’s comments, “[this] commonsense bill [] helps spur job creation and economic growth here at home and invests in our relationship with one of our closest allies.” (Id.)

In spite of the Committee’s bipartisan support of the legislation, the E-2 visa program poses several problems. Some of the program’s key flaws 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. Just last week, federal authorities indicted a woman running a Laredo, TX financial and immigration services business for including fraudulent tax forms and false information on businesses and employees on visa applications. (San Antonio Express, Feb. 29, 2012)

ICE Attempts to Negotiate with Cook County

Last week, U.S. Immigration and Customs (ICE) Director John Morton offered to negotiate the terms under which Cook County, IL would honor ICE detainers.  (Chicago Tribune, Feb. 29, 2012) Morton’s offer, made via a letter dated Feb. 13, 2012 to Cook County Board President, Toni Preckwinkle, was two-fold.  In return for allowing ICE agents back into the Cook County jail and for advance notice of when an alien subject to an ICE detainer will be released, Morton promised that ICE would pick up such aliens the day of release and would pay for certain jail costs associated with holding the alien longer than state law requires. (Id.)

Morton’s offer is the latest installment in a battle over whether local jurisdictions may intentionally obstruct the enforcement of U.S. immigration laws.  In September 2011, Cook County adopted a controversial ordinance that directs the Cook County Sheriff to ignore ICE detainers unless the federal government has agreed in writing to cover all related costs.  (Cook County Code Sec. 46-37) The ordinance also provides that the Sheriff shall not give ICE agents access to individuals or allow ICE to use County facilities for investigative interviews or other purposes, and that “County personnel shall not respond to ICE inquiries or communicate with ICE regarding individuals’ incarceration status or release dates.”  (See FAIR Legislative Update, Jan. 17, 2012)

Morton’s most recent letter appears to be an attempt to address one of the reasons sanctuary cities like Cook County’s Chicago refuse to honor detainers: costs.  That argument, however, appears to be more pretext for obstructionism than a legitimate claim.  County Board President Toni Preckwinkle initially claimed that honoring ICE detainers cost the County $15 to $20 million annually.  (Id.)  However, Cook County Sheriff Tom Dart later testified that the annual cost is approximately $250,000. (Id.)  In addition, local jurisdictions may receive reimbursement for a portion of these costs through the State Criminal Alien Assistance Program (otherwise known as SCAAP), run by the U.S. Department of Justice.  (See, e.g., FY 2011 SCAAP Guidelines, p.2) 

Preckwinkle has not yet officially responded to Morton’s offer, but reaction from County Commissioners was mixed.  County Board Commissioner Jesús García argued holding aliens after they have posted bond, served their sentence, or had their charges dismissed would violate the Fourth Amendment’s ban on unreasonable search and seizures.  (WBEZ.org, Mar. 1, 2012) Accepting ICE’s offer, he said, would have “a significant chilling effect” on local policing. (Id.)

But other County Commissioners appeared to be open to Morton’s offer.  Commissioner Peter Silvestri , who voted against the ordinance, said, “If the argument against complying with ICE detainers was that it’s a financial burden on the county, that argument has been resolved.”  (Id.) Similarly, Commissioner Tim Schneider said, “We need to find out what these last issues are in order for ICE to be able to do its job and function effectively in Cook County.”  Sheriff Dart’s office would not state whether it supported Morton’s proposals but said it favors “anything that helps bring sanity to the current situation.” (Id.)

Baltimore Mayor Commands City to Ignore U.S. Immigration Law

Baltimore Mayor, Stephanie Rawlings-Blake, issued an executive order Friday commanding city agencies and personnel to turn a blind-eye to immigration law violators. (See Mayor Blake Press Release, Mar. 2, 2012) The Mayor’s order, entitled “Advancing Public Safety and Access to City Services,” not only prohibits officials from using city funds to enforce immigration laws, but also by requires city agencies to grant welfare benefits and services to illegal aliens. (Id.)

Specifically, the order provides that:

  • No city funds, resources, or personnel shall be used to investigate, question, apprehend, or arrest an individual solely for an actual or suspected civil violation of federal immigration law;
  • Police shall not inquire about a person’s immigration status or contact U.S. Immigration and Customs Enforcement (ICE) for the purpose of initiating civil enforcement of immigration proceedings;  
  • Police shall not to inquire about the immigration status of crime victims, witnesses, or others who call or approach the police or other City employees seeking assistance; and
  • No City Department, agency, officer or employee shall condition the provision of city services or benefits on the immigration status of the individual seeking those services.

(Id.) The order also provides that ICE agents in Baltimore must identify themselves as federal agents to clarify that if any enforcement of U.S. immigration law occurs, that it’s by the federal government and not city officials. (Id.)

The executive order comes only days after ICE announced it would be rolling out the Secure Communities program in Baltimore City. (Baltimore Sun, Mar. 2, 2012) But, instead of acknowledging the order would interfere with the operation of Secure Communities, Mayor Rawlings-Blake described it as an “anti-discrimination” measure, saying the ordinance “clarifies existing anti-discrimination policies and local law enforcement practices in Baltimore and makes clear that discrimination of any kind will not be tolerated under any circumstances.” (Id.) Elizabeth Alex, an organizer for the pro-amnesty group CASA de Maryland, said that Secure Communities had sparked a wave of fear, and that expansion of the program to Baltimore may have caused the mayor to place more urgency in clarifying the City's stance.  (WBALtv.com, Mar. 2, 2012)

House Appropriators Object to Cuts in CBP Budget

On Wednesday, the House Appropriations Subcommittee on Homeland Security held a hearing on President Obama’s proposed budget cuts to Customs and Border Protection (CBP), included in the Department of Homeland Security’s (DHS) budget proposal for FY2013.

CBP’s budget request equals nearly $12 billion, a two percent increase over the President’s FY2012 request for the agency. (See DHS FY2013 Budget in Brief, pp. 25, 81)  

In spite of this increase, the Administration has proposed cuts to several key programs. (Id. at p. 85) These include:

  • $68.2 million decrease in funding for air and marine operations and procurements
  • $7.1 million reduction in air and marine staff
  • $6 million decrease in border security inspections and trade facilitation between points of entry
  • $6.7 million decrease in automation technology modernization
  • $72.9 million decrease in border security fencing, infrastructure, and technology

(Id.) Both Republicans and Democrats on the Subcommittee raised concerns that these proposed reductions could weaken CBP programs and put border security in jeopardy.

Subcommittee Chairman Robert Aderholt (R-AL) was dismayed that DHS’ proposed budget rollbacks would dilute Congress’ increased investments in border protection over the last several years. Specifically, he lamented the “unacceptable” cuts to air and marine operations and procurement at a time when “persistent surveillance is one of the biggest remaining gaps” in border security. “Bottom line,” he said, “this budget puts the investments we’ve made in border security over the years at risk.”  (Rep. Aderholt Opening Statement, Feb. 29, 2012)

Ranking Member David Price (D-NC) expressed similar concerns, saying, “This committee allocated significant resources under my tenure as chairman to provide adequate support staff to CBP ensuring front line personnel were not spending their time performing administrative functions behind desks. This budget, I’m afraid, would erase many of those gains.” (Bloomberg Government Transcript, Feb. 29, 2012)

During his testimony to the subcommittee, U.S. Border Patrol Chief Michael Fisher gave the Obama Administration credit for increases in security along the Southwest border, including the creation of a joint field base in Arizona, as well as an increase of border troops to more than 21,000. (Michael Fisher Opening Statement, Feb. 29, 2012) Much of these increases, however, stemmed from supplemental appropriations legislation passed by Congress in August of 2010, which granted Customs and Border Protection an additional $254 million. (See P.L. 111-230; see also FAIR Legislative Update, Aug. 16, 2010)

Additional statements made by Chief Fisher contradict his initial testimony that the Obama Administration supports sustaining a strong presence at the border. Fisher reported that on the day following the hearing, the Administration would begin withdrawing 900 National Guard troops from the Southwest border, leaving only 300 Guard troops on the ground. (Bloomberg Government Transcript, Feb. 29, 2012; see FAIR Legislative Update, Dec. 19, 2011)