Legislative Update: 2/18/2015 
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Legislative Update: 2/18/2015

 

Federal Judge Temporarily Blocks Obama's Executive Amnesty

Late Monday, a federal judge issued a temporary injunction on President Obama's executive amnesty program announced in November 2014. (FoxNews.com, Feb. 17, 2015) Judge Andrew Hanen of the District Court for the Southern District of Texas issued the injunction after ruling that the plaintiffs — Texas and two dozen other states — had sufficiently demonstrated that the implementation of the President's memos granting deferred action and parole status to millions of illegal aliens would injure their states. 

The District Court's ruling came just as the Obama Administration was set to begin implementation of the amnesty programs outlined in the memos the issued by Homeland Security Secretary Jeh Johnson last November. Indeed, DHS had scheduled to begin accepting applications for its expanded DACA program today. (USCIS News Alert, Jan. 30, 2015) The expansion would implement the following changes:

  1. Elimination of the age limit. Initially, the DACA program was limited only to aliens were under the age of 31 on the date DACA was announced (June 15, 2012).
  2. Reduction of the length of requested continuous United States residence. While DACA recipients originally were required to identify a date of entry after January 1, 2010, aliens are now eligible for DACA with a date of entry after June 15, 2007.
  3. Increased duration of reprieve from removal. The Johnson Memos extended the length of DACA status from two to three years. Today, the three-year DACA status will now be available to the pool of expanded DACA program applicants. (But see FAIR Legislative Update, Nov. 24, 2014 (describing how the Johnson Memos offer three-year DACA status to new first-time DACA applicants and DACA renewal applicants immediately)).

(See FAIR, Expansion of DACA, Nov. 24, 2014; see also DHS, Johnson expanded DACA Memo, Nov. 20, 2014; but see DHS, Napolitano original DACA Memo, June 15, 2012)

However, instead of launching the expanded DACA program, the Judge Hanen's injunction has put this program and other programs initiated last November on hold. In a release issued Tuesday, Homeland Security Secretary Jeh Johnson said he "strongly disagrees" with the decision, but confirmed that "the Department of Homeland Security will not accept applications for the expanded DACA program on February 18, as originally planned. "Until further notice, he added, "we will also suspend the plan to accept requests for DAPA." (Johnson statement, Feb. 17, 2015)



Boehner Won't Rule Out DHS Shutdown, Blames Senate Democrats for Blocking Approps Bill

Last week, House Speaker John Boehner (R-OH) said the House would not bow to Senate Democrats who continue to filibuster the Department of Homeland Security funding bill that blocks President Obama's executive amnesty. (Foxnews.com, Feb. 15, 2015; see FAIR Legislative Update, Jan. 20, 2015; FAIR Legislative Update, Feb. 10, 2015; The Hill, Feb. 11, 2015) On Wednesday, he told reporters that the House "had done its job," and that they should tell Senate Democrats to "get off their ass and do something other than to vote no." (Id.) Over the weekend, the Speaker reaffirmed this position, insisting that Senate Democrats would be "to blame" if DHS funding runs out, and that he was prepared to let that happen rather than pass another bill. (Foxnews.com, Feb. 15, 2015) "Congress," he said, "just can't sit by" and let the President "defy the Constitution." (Id.)

The Speaker's comments appear to rebuff calls by Senate Majority Leader Mitch McConnell (R-KY), who has recently suggested that the House send the Senate a new DHS funding bill. (Id.) Last Tuesday, Senator McConnell, who brought the bill up three times just to have Senate Democrats refuse to debate it, had said that the bill was "clearly stuck" in his chamber and "the next step is obviously up to the House." (Id.; Politico, Feb. 11, 2015) The Speaker, however, while praising Majority Leader McConnell for his willingness to offer amendments, refused to accept the premise that Senate Democrats could, by refusing to even debate a bill, control the agenda of entire Congress. (Foxnews.com, Feb. 15, 2015) He pointed out that, because Sen. McConnell had offered both Senate Democrats and Republicans the opportunity to offer amendments, it was their "turn" to "produce something that fits their institution" if they didn't like the House bill. (Id.)

The Speaker also noted yesterday morning that the preliminary injunction by U.S. District Judge Andrew Hanen blocking the President's actions further bolsters his case. (Speaker Boehner Press Release, Feb. 17, 2015) In a statement, the Speaker noted that the ruling was "no surprise" given that the President had said "22 times" he did not have the authority to do what he later did, and that "[h]opefully, Senate Democrats who claim to oppose this executive overreach will now let the Senate begin debate on a bill to fund the Homeland Security department." (Id.)

Prior to the ruling, a number of Senate Republicans, especially those who voted for the 2013 Senate amnesty bill (S.744), had been sending signals they don't think the issue is worth fighting for. Senator John Thune (R-SD), the 3rd ranking Senate Republican, said to reporters last Thursday "we've got to get this issue behind us." (Politico, Feb. 12, 2015) Senator Mark Kirk (R-IL), only a day after saying that the impasse was the fault of Senate Democrats, said last Wednesday that he thought Republicans should pass a DHS appropriations bill without defunding the executive amnesty to show they can "govern wisely." (Id.; Politico, Feb. 11, 2015) And Sen. Jeff Flake (R-AZ) suggested the proper response to executive overreach on amnesty is to pass the policy the President implemented unilaterally, saying "[t]ake the same time we're doing this and pass an immigration bill." (Politico, Feb. 12, 2015) Senate Republicans have also indicated they do not want to pass a short term funding resolution. Senator Susan Collins (R-ME) said, that "just kicks the can down the road" without solving anything. (Id.)

As the standoff continues, some GOP House members have suggested that the GOP leaders in the Senate ought to change the rules on filibusters to allow a simple majority to vote to proceed. (The Hill, Feb. 12, 2015) On Thursday, Reps. Raul Labrador (R-ID), Mo Brooks (R-AL), and Mick Mulvaney (R-SC) said that changing the Senate rules might be better than letting Senate Democrats determine the Republican House agenda. (Id.; Roll Call, Feb. 12, 2015) However, some GOP Senators are wary of the proposal, with Sen. Ted Cruz (R-TX) saying that the answer is for Senate Democrats to "stop being obstructionist," not to change Senate rules. (The Hill, Feb. 12, 2015)

On Friday, both the House and Senate left town for a ten day recess. There will be only one legislative week left when lawmakers return before DHS funding runs out on February 27. (Politico, Feb. 12, 2015)



Tech Workers Accuse Company of Replacing Them with Foreign Workers

Earlier this month, Southern California Edison (SCE) — the region's largest utility company — announced it will lay off 500 American information technology (IT) workers. (Computer World, Feb. 4, 2015) At the same time, SCE announced it plans to hire approximately 500 foreign workers on H-1B guest worker visas.

SCE confirmed the layoffs and simultaneous hiring of H-1Bs, but denied the foreign workers were replacing the American workers. "SCE has made, and will continue to make, difficult business decision," read an SCE statement. (Los Angeles Times, Feb. 10, 2015) SCE "is not hiring H-1B workers to replace displaced employees," the statement continued. (Id.) "Any H-1B visa workers SCE does hire for its own workforce are paid a wage comparable to SCE's domestic workforce," the company insisted. (Id.)

However, SCE workers disagreed. "They are bringing in people with a couple years' experience to replace us and then we have to train them," complained a long-time SCE worker. (Id.) "It's demoralizing and in a way I kind of felt betrayed by the company." (Id.) One of the displaced IT workers said the H-1B temporary guest worker program "was supposed to be for projects and jobs that American workers could not fill." (Id.; see INA 101(a)(15)(H)(i)(b)) "But we're doing our job. It's not like they are bringing in these guys for new positions that nobody can fill." (Computer World, Feb. 4, 2015)

Workers at U.S. tech companies are particularly vulnerable because loopholes in the law governing H-1B visas make it perfectly legal for companies to replace American workers with foreign H-1B workers. Indeed, there is nothing in the law regulating H-1B visas requiring employers to hire U.S. citizens first or lay them off last. Instead, the application only requires the employer to attest that it will provide working conditions for the H-1B worker "that will not adversely affect the working conditions of workers similarly employed." (INA 212(n)(1)(A)(ii)) Employers are able to exploit this weak provision by tailoring an H-1B worker's job description so they can claim that laid off American workers are not "similarly employed." The law only requires that certain employers whose workforce is overwhelmingly foreign guest workers — known as H-1B dependent employers — must certify that American workers have not been and will not be displaced within a 90-day period. (INA 212(n)(1)(E)-(F)) Even this protection is deceiving because an H-1B dependent employer can bypass it by either paying the H-1B at least $60,000 a year or hiring foreign workers with master's degrees. (INA 212(n)(3))

Leading H-1B critics pointed out that the SCE case is not an anomaly for American tech workers. SCE "is one more case, in a long line of them, of injustice where American workers are being replaced by H-1Bs," said Prof. Ron Hira. (Computer World, Feb. 4, 2015) "Adding to the injustice, American workers are being forced to do ‘knowledge transfer,' an ugly euphemism for being forced to train their foreign replacements," Hira continued. (Id.) Similarly, Prof. Norm Matloff points out — among many problems with H-1Bs — that employers typically replace older workers (around age 35) with younger H-1Bs because younger workers cost less. (See Matloff blog)

Indeed, employers are routinely replacing American workers with H-1B foreign workers. For example, in January Disney laid off 500 IT workers in Florida and replaced them with H-1Bs. (wesh.com, Jan. 30, 2015) Additionally, in 2014 Northeast Utilities in Connecticut eliminated 200 American jobs and replaced them with H-1Bs. (Computer World, Apr. 23, 2014)



DHS to Allow Executive Amnesty Beneficiaries to Bring in Relatives from Central America

Last Monday, USCIS announced it would allow beneficiaries of President Obama's executive amnesty to bring relatives into the country from Central America. (USCIS.gov, Feb. 9, 2015) The Administration will do so through a Central American refugee program it originally formulated last July as tens of thousands of illegal alien minors from Central America streamed across the border illegally. (See FAIR Legislative Update, Jul. 29, 2015) The Administration officially announced the program in November and began accepting applicants in December. (See FAIR Legislative Update, Nov. 18, 2014; State.gov, Dec. 3, 2014) However, details released regarding its implementation last Monday reveal the refugee program will be even more sweeping than previously known because it will allow illegal aliens who benefit from the President's executive amnesty to bring in their relatives from Central America.

Under the program, the federal government will grant either refugee or parole status to children and adults from Guatemala, Honduras, or El Salvador when a "qualifying parent" who is "lawfully present" in the U.S. files an application for refugee status on behalf of their child currently living in one of those countries. (See FAIR Legislative Update, Nov. 18, 2014; USCIS.gov, Feb. 9, 2015) The guidelines announced last week provide that a "qualifying parent" may be an alien with 1) permanent resident status; 2) temporary protected status; 3) parole (after one year); 4) deferred action (after one year); 5) deferred enforced departure; or 6) withholding of removal. (Id.) These categories cover illegal aliens granted amnesty through DACA and DAPA, as well as the President's other backdoor amnesty policies. This means that the Obama Administration is actually creating a program to allow illegal aliens to use the laws of the United States governing refugees and parole, to bring in their relatives living outside the U.S.

If an alien is a "qualifying parent," he or she may petition the U.S. government to admit a "qualifying child" to the United States. The "qualifying child" must be: 1) the biological, step, or legally adopted child of the parent in the U.S.; 2) unmarried; 3) under the age of 21; 4) a national of El Salvador, Guatemala, or Honduras; and 5) residing in his or her country of nationality.

However, "qualifying parents" will not only be able to sponsor their children, but other relatives living in Central America (Id.) For example, if the qualifying child has unmarried children of his or her own, they may be brought in as "derivative" relatives. (Id.) In addition, the other parent of a qualifying child may also come to the U.S., if that parent lives or is "part of the same economic unit" as the child and is legally married to the parent living in the U.S. (Id.)

Importantly, if aliens are ineligible to qualify as a refugee, the program allows the same aliens to apply for parole in order to enter the U.S. (See FAIR Legislative Update, Nov. 18, 2014)

Granting refugee or parole status to Central Americans through this program contradicts federal law. (See FAIR Legislative Update, Nov. 18, 2014) Section 101 of the Immigration and Nationality Act (INA) defines a refugee as a person "who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Moreover legal opinions make it clear that poverty and crime are not sufficient grounds for granting refugee status. Similarly, granting parole en masse to relatives of illegal aliens in the U.S. stretches "humanitarian parole" far beyond its statutory definition in INA Section 212 as allowing the entry of an alien on a temporary, case-by-case basis, and "for urgent humanitarian reasons or significant public benefit." (INA § 212(d)(5)(A)) If the Administration is willing to go so far beyond any reasonable interpretation of the law in creating a program, there is no reason to believe it will not expand the program to other countries beyond Honduras, Guatemala, and El Salvador in the future.

True immigration reformer Senator Jeff Sessions (R-AL) blasted the Administration for its "amnesty chain migration" program. (Sen. Sessions Press Release, Feb. 10, 2015) He said: the "President's answer to the ongoing run on the border is to order government officials to transport many of those same individuals from Central America into the U.S. with lawful paperwork and guaranteed access to federal benefits." (Id.)



DHS Sets Up Amnesty Hotline for Illegal Aliens

The Department of Homeland Security (DHS) has set up toll-free numbers for illegal aliens who believe federal law enforcement officials are denying them full access to President Obama's executive amnesty programs. In a February 5 email announcing the hotlines, DHS advised illegal aliens to "please tell us about your experience" if they think they were treated "contrary to the new DHS enforcement priorities." (See Washington Times, Feb. 8, 2015)

The Obama Administration has created three separate numbers for illegal aliens to use based on their interactions with Customs and Board Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). The CBP notice explicitly asks illegal aliens to lodge complaints. "The CBP Info Center (CIC) is a toll-free service for individuals with questions about CBP procedures or who wish to register a complaint about an encounter with CBP that they believe to be contrary to guidance," the notice reads. (CBP Amnesty Hotline Instructions)

Border Patrol agents blasted DHS for the complaint lines. "Instead of supporting our agents, this administration has decided it is more important to find new ways to solicit complaints and invite ridicule against them," charged Shawn Moran, vice president of National Border Patrol Council. (Washington Times, Feb. 8, 2015) "We demand that this administration spend more time defending the men and women defending our nation and less time promoting the extreme agendas of pro-illegal immigration organizations." (Id.)

A DHS spokesman downplayed the hotlines. "This provides one place for all stakeholders to find out more about the new DHS guidelines, deferred action, eligibility for new initiatives, or to register comment or complaint," insisted Ginette Magana. (Id.) "DHS continuously engages with stakeholders, members of Congress and interested individuals to provide the most up-to-date information and answer questions about any new initiatives." (Id.)



FAIR Report: $2.4 Billion to Educate Illegal Alien Children in D.C. Region

A new report from the Federation for American Immigration Reform (FAIR), Cost in Translation: English Language Education in the Washington, D.C. Metropolitan Area, reveals that in the D.C. metro area alone, the cost of educating children who are limited English proficient (LEP) runs to $2.4 billion.

The recent "surge" of Unaccompanied Alien Children (UAC) and families with young children who poured across our borders in the spring and summer of 2014 exacerbated an already costly task for public school educators and administrators in many localities across the United States. According to data from the Department of Health and Human Services (HHS), more than 55,000 UACs were released to relatives and other sponsors throughout the United States between October 2013 and September 2014. Over 5,100 UACs were settled in the Washington, D.C. metro area. These new arrivals join some 438,000 illegal aliens and about 100,000 U.S.-born children of illegal aliens already living there.

Among Cost in Translation's key findings:

  • Nearly half, 45.8 percent of the Alexandria, Virginia, public school system's budget is now devoted to the needs of LEP students who comprise nearly 30 percent of the student body. The Alexandria schools have experienced a 125 percent growth in its LEP population since the 2005-06 school year.
  • Fairfax County, Virginia, carries the largest cost burden in the area, spending more than $676 million a year on education and services for more than 33,000 LEP students.
  • Montgomery County bears the largest burden among Maryland school districts, spending more than $466 million on LEP students. Forty percent of Montgomery County residents speak a language other than English at home.
  • Throughout the D.C. metro area, education costs for LEP students are about 50 percent higher than for English-speaking students. The costs for recently arrived unaccompanied minors are an additional 25 percent higher than other LEP students.

Education is paid for primarily by local governments. In addition to basic educational costs, local school districts have to pick up the costs of language instruction for non-English-speakers, as well as other programs such as free or reduced cost meals as it is also likely that LEP speakers come from low-income households.

While more money is being spent in D.C. area schools on LEP education, these same school districts are cutting funding in other areas, or struggling to find ways to fund current ones, usually by proposing to raise property and transit taxes.



New Mexico House Votes to Repeal Illegal Alien Driver's License Law

On Friday, the New Mexico House of Representatives passed House Bill ("H.B.") 32, which repeals New Mexico's 2003 law that grants driver's licenses to illegal aliens. Currently, ten states grant driving privileges to illegal aliens. (CBS, Feb. 13, 2015) However, New Mexico is one of only two states that grant regular driver's licenses, as opposed to "driving privilege cards," to illegal aliens, in violation of the federal REAL ID Act. Washington is the second.

Originally, H.B. 32 was drafted to allow illegal aliens in the state to receive "driving privilege cards" in lieu of driver's licenses, in order to come into compliance with the federal law. (H.B. 32 Introduced Version) Last Wednesday, however, the House Judiciary Committee voted to amend H.B. 32 to create just one driver's license for both citizens and legal aliens, and to rescind driving privileges for illegal aliens all together. (H.B. 32 Amendment) Under the revision, illegal aliens with New Mexico driver's licenses will simply see them expire. (Id.)

The movement to repeal illegal alien driver's licenses in New Mexico has seen wide support amongst state officials and constituents. A 2014 Albuquerque Journal poll revealed that 75 percent of New Mexicans support repealing the state's current driver's license law. (Albuquerque Journal, Feb. 11, 2015) Greg Fouratt, the Secretary of the Department of Public Safety, explained his support for repealing the current law, stating "New Mexico driver's licenses have become a commodity for criminal rings across the country." (Id.) Rep. Paul Pacheco, the sponsor of H.B. 32, stated, "This bill is attempting to secure New Mexico's driver's licenses and bring us into compliance with the (federal) Real ID Act." (CBS, Feb. 13, 2015)

Proponents of the bill argue that granting driver's licenses to illegal aliens resulted in an increase in fraud and human trafficking to the state. (Albuquerque Journal, Feb. 11, 2015) Indeed, New Mexico has experienced high instances of fraud as a result of granting driver's licenses to illegal aliens. During an audit between August 2010 and April 2011, investigators found that as much as 75 percent of foreign national license applications were phonies. (KRQE) Between that same period, investigators also uncovered 37 percent of foreign national requests for appointments came from out-of-state, most from Arizona, Georgia, and Texas. (Fox News, Jan. 25, 2012)

H.B. 32 will next be sent to the Senate for consideration. The full Senate must vote on the bill before it can be sent to the governor for signature. Governor Susana Martinez has been pushing for repeal of the current driver's license law since she took office in 2010, and is likely to sign the bill if it makes it to her desk. (Albuquerque Journal, Feb. 11, 2015)