Legislative Update: 1/26/2016 
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Legislative Update: 1/26/2016


More Than Half a Million Foreigners Overstayed Their Visa in 2015

A newly released Department of Homeland Security (DHS) report reveals that foreign nationals overstaying the authorized duration of their visas continues to contribute to the problem of illegal immigration. According to DHS, 527,127 foreigners who were granted temporary admission into the country on a B- visa (business or pleasure), failed to depart when required to do so during fiscal year 2015. (DHS Entry/Exit Overstay Report FY2015, Jan. 19, 2016 at 7) Of those, at the end of FY2015 (September 30, 2015) 91 percent — or 482,781 individuals — were believed to still be in the country unlawfully. (Id.) Over the past couple of months, DHS identified approximately 66,500 suspected visa overstays who were believed to be in the country but subsequently departed as of January 4, 2016. (Id.) However, 416,500 individuals remain in the United States without lawful immigration status. (Id.)

The DHS report also breaks down the FY2015 overstays by country of origin. DHS calculates that 153,166 overstays — or 29 percent — come from Visa Waiver Program (VWP) countries. (Id. at 8-9) Of those, 136,807 — or 89 percent — still remain in the country unlawfully. (Id.) The controversial VWP allows citizens of 38 countries with low visa refusal rates to enter the U.S. for up to 90 days without having to obtain a visa or be interviewed, face-to-face, by a U.S. consular officer. (INA § 217) FAIR has consistently called for ending the VWP because the lack of scrutiny in the admission process encourages illegal immigration. (See e.g. FAIR Press Release, June 22, 2015)

Additionally, 228,783 overstays — or 43 percent — come from non-VWP countries while 145,178 come from Canada and Mexico. (Id. at 10-15) From that total, 210,825 overstays remain in the country unlawfully from non-VWP countries and 135,149 remain in violation of their visa terms from Canada and Mexico. (Id. at 14-15)

Importantly, this report only sheds light on part of the visa overstay problem. First, the report only considers the number of overstays of the B- visa and does not calculate the overstay numbers of other visa categories, including the F-1 student visa; H- and L- visas; or the J-1 exchange visa. Additionally, the report only counts the B- visa overstays of nonimmigrants who entered the United States through air or sea ports-of-entry without accounting for those who enter via land ports-of-entry.

Obama's Carve Out to New Visa Waiver Law Raises Security Concerns

In the wake of the Paris terrorist attacks, Congress began scrutinizing the Visa Waiver Program (VWP). Under the VWP, citizens of 38 countries are allowed to enter the U.S. for up to 90 days without having to obtain a visa or be interviewed, face-to-face, by a U.S. consular officer. (See INA 217(a)) Bypassing Congress, President Obama announced in November a series of changes to the VWP that were intended to prevent terrorists from exploiting the VWP to get into the United States. (See FAIR Legislative Update, Dec. 1, 2015) Then, in December, Congress included in the fiscal year 2016 omnibus appropriations bill Rep. Candice Miller’s (R-MI) H.R. 158, which bars nationals from Syria, Iraq, Iran, and the Sudan, or individuals who have been to those countries in the last five years, from traveling to the U.S. without a visa. (See FAIR Legislative Update, Dec. 15, 2015)

Last week, the Obama administration announced that it was implementing the VWP restrictions from H.R. 158. “Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked,” read a Homeland Security (DHS) press release. (DHS Press Release, Jan. 21, 2016) While noting that the new law gives the DHS Secretary the authority to “wave these restrictions if he determines that such a waiver is in the law enforcement of national security interests” of the U.S., the press release stressed that such waivers would only occur on a “case-by-case basis.” (Id.) However, in announcing the categories of individuals eligible for a waiver the Obama administration is disregarding the intent behind H.R. 158. Specifically, the DHS press release said it may grant waivers to individuals who traveled to Iraq for “legitimate business-related purposes” and those who traveled to Iran for “legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action...” (Id.)

Lawmakers criticized President Obama for the business carve-out as contrary to the law and as a move that jeopardizes the safety of the country. “President Obama is again putting his relationship with Iran’s supreme leader of the security of Americans,” charged House Homeland Security Chairman Michael McCaul (R-TX) and Rep. Candice Miller. (Washington Times, Jan. 21, 2016) “The will of Congress was clear with this legislation, yet now the executive branch is blatantly planning to violate it.” (Id.) House Judiciary Chairman Bob Goodlatte (R-VA) added, “The Obama Administration is essentially rewriting the law by blowing wide open a small window of discretion that Congress gave it for law enforcement and national security reasons.” (The Hill, Jan. 21, 2016) “In fact, the categories of people that the Obama Administration is exempting from the law were expressly rejected by Congress,” he declared. (Id.)

Maryland Lawmaker to Introduce Anti-Sanctuary Legislation

Frustrated by the lack of federal action challenging sanctuary cities nation-wide, Maryland Delegate Pat McDonough (R- District 7) announced his plans to introduce legislation in the Maryland General Assembly this session to combat local sanctuary policies in Maryland. (Washington Times, Jan. 19, 2016) Sanctuary cities are jurisdictions with policies, practices, or procedures that interfere with a state or local law enforcement official’s ability to communicate or cooperate with the U.S. Immigration and Customs Enforcement (ICE). Delegate McDonough’s legislation marks another attempt this year by state legislators to support ICE in the enforcement of immigration laws. State leaders around the country are intensifying efforts to eradicate sanctuary cities with legislation to ensure local law enforcement are able fully assist federal enforcement efforts with regard to criminal aliens already in local custody.

Reportedly, Delegate McDonough’s legislation will attempt to reign in jurisdictions that specifically have policies prohibiting local law enforcement officers from complying with detainer requests issued by ICE. (Id.) A detainer is a request sent by federal officials that asks local officers to maintain custody of a criminal alien for up to 48 hours so federal officials may obtain custody of the criminal alien. Under the Obama Administration’s new policies, many ICE detainers do not go as far as to ask local law enforcement to maintain custody of an alien, but instead merely ask for information regarding the release date of the criminal alien in custody. (DHS Immigration Detainer FormDHS Request for Notification Form) Furthermore, the Obama Administration’s revised priorities have also constrained federal officials’ ability to issue a detainer for any alien other than those already determined by the agency to be serious public safety or national security risks. (FAIR Report, Oct. 2, 2015) Despite these hurdles, many localities have succumbed to pressure by illegal alien advocates and instituted policies requiring their officers to reject ICE detainers completely. (Id.)

Currently, numerous jurisdictions in Maryland have sanctuary policies, including, but not limited to Baltimore County, Montgomery County, and Prince George’s County. Delegate McDonough commented that these sanctuary policies not only threaten general public safety, but also hurt already vulnerable working class Americans. (Washington Times, Jan. 19, 2016) “They don’t take jobs from lawyers or reporters,” Delegate McDonough said. (Id.)“They take jobs from low-skilled young people, entry-level jobs, training jobs. They displace them.” (Id.) Data obtained by the Texas Tribune reveals that local law enforcement officials around the country denied detainer requests 18,646 times between January 2014 and September 2015 alone. Most of the denials, over 11,000, have originated in California, which is one of two states in the country to have a statewide sanctuary policy written into law.

Delegate McDonough also plans to introduce legislation this session to require local law enforcement officers in Maryland to give federal immigration officials up to ten days notice before releasing criminal aliens in their custody, whether or not ICE issues a detainer request for the alien. (Washington Times, Jan. 19, 2016) While anti-sanctuary legislation has received support by many Maryland Republicans, it is unclear whether Delegate McDonough’s bills will advance through committee in the state’s Democrat-controlled General Assembly.