FAIR Legislative Update November 26, 2012
Republican Leadership in the U.S. House of Representatives has made good on its promise to take up STEM legislation introduced by Judiciary Chairman Lamar Smith (R-TX) by adding the bill to its floor calendar this week. (See Weekly Floor Schedule, Nov. 20, 2012; see also CQ Roll Call, Nov. 21, 2012) The bill is a modified version of H.R. 6429, which eliminates the visa lottery by reallocating the 55,000 green cards available under the program to two new employment-based visa categories, the EB-6 and EB-7. (See H.R. 6429; see also Summary of Changes in Rules Committee Print, Nov. 20, 2012) The vote this week will mark the second time in three months the House has considered the legislation.
The proposed EB-6 category is designed to benefit foreign students holding a PhD in a STEM field (Science, Technology, Engineering, and Mathematics) from a U.S. university. (See H.R. 6429 at §2) Similarly, the proposed EB-7 category is designed to benefit foreign students holding both a Master's and baccalaureate degree in a STEM field from a U.S. university. (Id.) Those with Master's degrees would be granted a green card only after all qualifying PhD petitions have been granted. (Id.)
Under the bill, employers who petition to hire these graduates must receive labor certification to help protect American workers. However, the bill allows DHS to waive this requirement, under its own discretion, if doing so is in the national interest. (Id., see also INA § 212(a)(5)(A))While the bill originally required EB-6 and EB-7 recipients to work for their petitioning employer for an aggregate of five-years, the modified version contains no such requirement. (See H.R. 6429 at §2) Moreover, unlike the original version of the bill, the modified version of H.R. 6429 allows unused green cards under the new EB-6 and EB-7 categories to be rolled over through 2016. As introduced, the bill only provided for the rollover of unused green cards under the proposal through 2014. (Id.)
Also among the changes in the modified version is the elimination of a provision prohibiting universities from providing any commission, bonus, or other incentive to a recruiter based on securing enrollments or financial aid of nonimmigrant students. (Id.) At the same time, the legislation creates a new nonimmigrant student visa category specifically for foreign students seeking to study in a STEM field who may potentially seek an EB-6 or EB-7 green card in the future. (See H.R. 6429 at §5) Combined, these provisions could hurt American students who intend to study in STEM fields, as they could increase competition for admission, especially since universities benefit significantly from admitting foreign students who pay full tuition. (See INA § 101(a)(15)(F))
Finally, in an effort to garner Democratic support, the modified legislation includes an additional section that would resurrect the V nonimmigrant visa program to allow the spouses and unmarried children of lawful permanent residents to enter the country while they wait for a green card. Created by the Legal Immigration Family Equity Act in 2000, the V-visa program granted spouses and unmarried children of green card holders who petitioned to come to the U.S. by December 2000 a V-visa if their application had been pending for more than three years, or the applicant had been approved but could not yet enter the country due to certain circumstances. (See INA § 101(a)(15)(V)) Because the V-visa applied only to those who petitioned for a green card by 2000, the program essentially sunset after 2003. The new version of H.R. 6429, however, would amend the V-visa program to allow all spouses and children of a green card holder who petition for lawful permanent residence pursuant to such status to wait in the U.S. to receive their green card after spending just one-year on the green card waiting list. (See H.R. 6429 at §6) While this new provision would prohibit V-visa holders from working in the U.S., it accelerates immigration to the U.S. dramatically by circumventing wait-lists requiring petitioners to wait outside of the country to receive a green card before entering.
The bill is likely to pass given the Republican majority's support for it when it was placed on the House suspension calendar in September. While at that time the bill failed to garner the two-thirds vote necessary to pass bills via suspension (it received a final vote of 257 to 158), this week's vote, which is scheduled to take place no sooner than Wednesday, will likely occur under a rule requiring a simple majority. (See Roll Call Vote #590)
Upon releasing the latest statistics on the Deferred Action for Childhood Arrivals (DACA) program, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas held a conference call Monday to address questions and concerns of the open borders lobby.
During the call, Mayorkas shed light on the lack of information regarding the number of denied DACA applications. "Because of the nascent stage" of the DACA program, he said, USCIS is not yet in a position to provide data on the number of applicants who have been denied. Instead, Mayorkas clarified that before the Agency denies any applications, USCIS is doing one of two things: 1) filing a Request for Evidence (RFE) that asks applicants to submit additional evidence to prove they meet the program's criteria; or 2) issuing applicants a Notice of Intent to Deny the application.
According to Director Mayorkas, if USCIS files an RFE, then the applicant has 84 additional days (12 weeks) to submit proper qualifying evidence. If USCIS issues a Notice of Intent to Deny, the applicant has 30 days to submit evidence before the application is denied. Mayorkas noted that the criterion triggering the greatest number of RFEs is the inability to show continuous presence in the U.S. since June 15, 2007.
Alarmingly, despite the Administration's claim that there is no appeals process for illegal aliens denied DACA status, Mayorkas told callers that an illegal alien can re-apply for the program if they feel their denial was based on an "evidentiary deficiency" rather than an inability to meet the base criteria. (See USCIS website on decisions and renewals, Nov. 20, 2012) He also assured them that even if an applicant is ultimately denied deferred action under the program, that unlawful status alone is insufficient to warrant the Administration taking action against the illegal alien. There needs to be an "independent reason" for enforcing immigration laws against illegal aliens, he said.
That same day, USCIS also released additional tools on its website to aid illegal aliens during the DACA application process. The additional tools consist of a "tip sheet" to walk illegal aliens through a check-list before they submit their application, FAQs in three additional languages, and guidance for employers to make it easier for them to hire DACA beneficiaries who are granted deferred action and work authorization. Focusing on common filing errors that lead to the procedural rejections of DACA applications, the "tip sheet" reminds illegal aliens to make sure all forms are properly signed, the correct filing fee is paid, and that no field is left blank. (See Filing Tips for Deferred Action for Childhood Arrivals, Nov. 19, 2012)
Further aiding illegal aliens, the Frequently Asked Questions portion of the DACA website is now available in three additional languages: Korean, Portuguese, and Tagalog. This is in addition to already appearing in English and Spanish. (See USCIS Website on DACA FAQs, Nov. 20, 2012) Moreover, the guidance to employers regarding DACA encourages them to hire illegal aliens by reassuring them that those with employment authorization through the program are work eligible. The guidance tells employers how to complete the employment authorization Form I-9, and reminds them that it is against federal law to discriminate against an individual based on citizenship or immigration status. (See Guidance for Employers, Nov. 19, 2012)
The Department of Homeland Security (DHS) recently launched a website designed to advertise welfare and entitlement benefits to legal and illegal aliens. "Depending on your immigration status, length of time in the United States, and income," the website says, "you may be eligible for some federal benefit programs." (Welcome to USA Government Benefits Webpage, Nov. 20, 2012)
Created to remedy "a lack of information about how to access such benefits" and counter "complicated and…misleading information," the website explains how to access federal benefits and promotes such programs to legal and illegal aliens. Federal benefits listed on the website include Medicare, Medicaid, Social Security, food stamps, Temporary Assistance for Needy Families (TANF), among others. (Id.)
According to U.S. Citizenship and Immigration Services (USCIS) spokesman Bill Wright, "the website seeks to improve access to federal government information on the Internet by consolidating information into helpful categories and highlight new resources available to immigrants and the organizations that serve them." (Daily Caller, Nov. 18, 2012)