FAIR Legislative Update September 11, 2012
A day after returning from its annual August recess, the U.S. House of Representatives has positioned itself to pass S. 3245, legislation that would reauthorize four expiring immigration programs: E-Verify, the EB-5 immigrant visa, the Religious Worker immigrant visa, and the "Conrad 30" J-1 program. (See S. 3245 as amended) House Leadership placed S. 3245 on today's suspension calendar, which limits debate on the bill to a mere 40 minutes and prohibits Members from offering amendments to the bill.
The legislation, which the Senate quietly passed just before the August recess began, extends each of these four programs for a three-year period. While true immigration reformers tend to be familiar with the electronic work authorization verification program known as E-Verify, few are familiar with the other programs reauthorized in the legislation.
The EB-5 immigrant visa program grants nearly 10,000 green cards each year to aliens who invest $500,000 to $1 million in a "new commercial enterprise" that will benefit the U.S. economy and create at least 10 jobs. (INA § 203(b)(5)) While supporters of the program claim this program benefits the U.S. economy, critics have pointed out that the program has in fact only limited effectiveness. And, just last month the Inspector General for the Department of Homeland Security opened an investigation of the program amidst allegations that projects opened under the program are not adhering to securities regulations. (The Daily, Sept. 10, 2012) Moreover, in 2005, the GAO found that after 12 years the EB-5 program had only led to $1 billion in investments (instead of the predicted $48 billion) and there was no reliable accounting of jobs created. (See Selling America Short: The Failure of the EB-5 Visa Program, p.1)
The Religious Worker immigrant visa program allows aliens who meet certain conditions to obtain green cards to work either as a minister or as a non-minister in a religious organization. (INA § 101(a)(27)(C)) Approximately 10,000 employment-based visas are set aside each year for this program, of which 5,000 are set aside for non-minister immigrants. (INA § 203(b)(4)) The Religious Worker immigrant visa program, however, has been criticized for not requiring organizations to establish need for such immigrant workers and rampant fraud in applications. In 2005, the USCIS Office of Fraud Detection and National Security found the program had a stunning 33 percent fraud rate. (OIG-09-79, July 2009, p.1) Yet some religious institutions insist that the program alleviates an "acute shortage of non‐minister religious workers in the United States." (United States Conference of Catholic Bishops website) While subsequent regulations have helped reduce the fraud, serious doubts remain as to whether the program truly meets a need among religious organizations.
The "Conrad 30" J-1 program allows aliens who are trained as doctors at U.S. universities to stay in the U.S. after their medical training under certain circumstances. (INA § 214(l); USCIS website) Generally, the J-1 program — which allows aliens to train as doctors in the U.S. — requires such doctors return home for at least two years before returning to the U.S. as a nonimmigrant or immigrant. (INA §212(e)) The Conrad 30 J-1 program, however, waives the home residency requirement for doctors who work in certain rural areas. The "30" designation refers to the number of J-1 doctors each state may sponsor for a waiver of the home residency requirement. As a result, not only does the Conrad 30 program displace U.S. doctors, but it also deprives developing countries of much-needed medical care providers (referred to as "brain drain") by waiving the requirement aliens return to their home country. (New York Times, Mar. 7, 2012)
Because Leadership placed the bill on the suspension calendar, it is expected to quickly pass the House and be sent to President Obama for his signature.
Delegates at the Democratic National Convention last week adopted the Party's official platform, which fully embraced the Obama Administration's immigration policy agenda. (DNC Platform, 2012)
First, the platform echoes the Administration's pro-amnesty agenda. While the platform specifically states that "only Congress can provide a permanent, comprehensive solution" to the nation's immigration problems, it nonetheless adopts the Obama Administration's recent decision to grant employment authorization and deferred action to illegal aliens under the age of thirty. (FAIR Legislative Update, June 19, 2012; see also DNC Platform at p. 13-14, 2012) Democrats vow that, if reelected, their Party will fight to bring "undocumented immigrants out of the shadows…in order to get on a path to earn citizenship." (DNC Platform at p. 13, 2012)
This pledge to illegal aliens comes in spite of the United States' 14.7% unemployment and underemployment rate. (See U.S. Bureau of Labor Statistics U-6 Chart, Aug. 2012) Moreover, according to a recent study conducted by Northeastern University researchers, "about 1.5 million, or 53.6 percent, of bachelor's degree-holders under the age of 25 last year were jobless or underemployed, the highest share in at least 11 years." (See Associated Press, Apr. 23, 2012)
In addition to folding the illegal alien community into America's working population, the Democratic platform also advocates more STEM worker visas for foreign students. Democrats "will work to make it possible for foreign students earning advanced degrees in science, technology, engineering, and mathematics to stay" and work in the United States, the platform reads. (DNC Platform at p. 6, 2012) Yet, only one-third of American STEM workers are currently employed in jobs closely related to their degrees, and about two-thirds of American STEM workers are employed or are training for jobs in unrelated fields. (See FAIR Report, Jobs Americans Can't Do? The Myth of a Skilled Worker Shortage, Nov. 2011; see also Urban Institute Report, 2007)
Now that both parties have their platforms in place and have completed their official nominating conventions, the 2012 presidential election is officially underway. The first debate, on domestic policy, will take place October 3.
Wednesday evening, Benita Veliz became the first known illegal alien in U.S. history to address a national political party convention. (See Los Angeles Times,Sept. 5, 2012; see also FAIR Press Release, Sept. 5, 2012) Although her speech was just over two minutes, it was a crystal clear indication of President Obama's and the Democrat Party's position on immigration.
In her speech, Ms. Veliz reiterated the amnesty lobby's argument that is simply unfair to deport illegal aliens. "I've had to live almost my entire life knowing I could be deported just because of the way I came here," she told the audience, ignoring the proper channels set forth for coming to the U.S. in federal law. Ms. Veliz also praised the Obama Administration for granting deferred action to illegal aliens who qualify for the DREAM Act, which permits them to stay and work in the United States. "President Obama fought for the DREAM Act to help people like me. And when Congress refused to pass it, he didn't give up. Instead, he took action so that people like me can apply to stay in our country..." she said. (See transcript and video here,Sept. 6, 2012)
Perhaps most remarkable, Ms. Veliz addressed the crowd without fear of being placed into removal proceedings. Immigration officials also elected not to place ten illegal aliens arrested for protesting at the Democrat Party Convention into proceedings. (Los Angeles Times,Sept. 5, 2012)
Last week, the federal district court in Arizona enjoined the anti-smuggling provisions found in Section 5 of Arizona's immigration enforcement law, SB 1070. (Valle del Sol v. Whiting, No. CV 10-1061-PHX-SRB, D. Ariz. Sept. 5, 2012) Intended to help stop the dangerous practice of human smuggling, Section 5 prohibits individuals knowingly transporting or harboring illegal aliens within the state, or inducing illegal aliens to enter or live in the state. (SB 1070 Sec. 5)
The District Court ruling was the result of a second lawsuit brought against the state of Arizona brought by various open borders groups, including the American Civil Liberties Union (ACLU), National Immigration Law Center, and Mexican American Legal Defense and Educational Fund (MALDEF). The first lawsuit seeking to strike down SB 1070 – covered extensively by the media–was brought by the U.S. Department of Justice (DOJ) and resolved in the Supreme Court this June. (See DOJ Complaint)
In this case, however, Plaintiffs argued Section 5 should be enjoined for different reasons than those set forth by the DOJ. While the DOJ unsuccessfully argued that Section 5 was an impermissible regulation of immigration and interfered with interstate commerce (DOJ Complaint at 22), plaintiffs here argued that Section 5 should be enjoined because it is preempted by federal law. In short, plaintiffs argued that: (1) federal law so comprehensively regulates alien smuggling that there is no room for state regulation in this field, and (2) Section 5 conflicts with the purposes and objectives of federal anti-smuggling laws because the scope of prohibited behavior is greater than federal law. (District Court Order, Sept. 5, 2012)
The District Court agreed with Plaintiffs, holding that federal law preempts Section 5. Rejecting the State's argument that federal law permits state action because it expressly authorizes state law enforcement officials to arrest individuals for alien smuggling, Judge Susan Bolton held that Arizona nevertheless is not permitted to pass a law on the subject. Moreover, she argued, while federal law permits state officials to arrest for alien smuggling, it does not permit the state to prosecute such offenses. That discretion, Bolton said, rests with federal prosecutors. (Order at 8-9) To bolster her reasoning, Bolton quoted extensively from a recent ruling of the 11th Circuit that struck down Alabama's and Georgia's anti-smuggling laws. (Id.)
If Arizona chooses to appeal the federal court's decision, the 9th Circuit Court of Appeals will hear the case next.