Legislative Update: 3/14/2017 
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Legislative Update: 3/14/2017

8 States Sue to Block Trump’s Revised Travel Order

By: Robert Law

Just days after President Trump signed a new national security executive order, Democratic attorneys general from six states have sued to block the order. Hawaii filed the first lawsuit last Wednesday, claiming that the temporary travel freeze on foreign nationals from countries that are hotbeds for terrorism will harm The Aloha State’s Muslim population, tourism, and foreign students. (Associated Press, Mar. 9, 2017) Attorneys for the state said in their complaint, “The executive order means that thousands of individuals across the United States and in Hawaii who have immediate family members living in the affected countries will now be unable to receive visits from those persons or be reunited with them in the United States.” (CNN, Mar. 9, 2017) Federal District Court Judge Derrick Watson—an Obama appointee—approved expedited briefing on the case and will hear arguments on March 15, a day before the executive order is set to go into effect. (Id.) Separately, Washington State Attorney General Bob Ferguson (D) announced that he is filing a motion with Judge Robart to rule that the temporary restraining order (TRO) imposed on the January 27 executive order also applies to the new one. (The Hill, Mar. 9, 2017; see FAIR Legislative Update, Feb. 7, 2017) The Democratic Attorneys General of New York, Oregon, and Massachusetts are joining Washington and Minnesota’s challenge. (The Hill, Mar. 9, 2017) California and Maryland have subsequently joined the legal challenge. (Law360, Mar. 13, 2017)

Both lawsuits center around the executive order imposing a temporary freeze on all refugee admissions as well as a temporary entry from citizen of six countries the U.S. government considers to be hotbeds for terrorism. Section 2 of the new executive suspends the entry into the U.S. for 90 days aliens from the following countries: Iran, Syria, Libya, Somalia, Yemen, and Sudan. (See FAIR Legislative Update, Mar. 7, 2017) Section 6 imposes a 120-day temporary suspension of the U.S. Refugee Admissions Program. (Id.) Importantly, the executive order also grants the Secretaries of State and Homeland Security the discretionary authority to admit an individual who would be subject to the temporary bar on a case-by-case basis when in the national interest. (Id.)

These lawsuits—like the challenge to the original executive order—are politically motivated and have no legal basis. Section 212(f) of the Immigration and Nationality Act (INA) states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (INA § 212(f); 8 U.S.C. § 1182(f)) These Democratic attorneys general and the judges who ruled on the initial challenge have ignored this clear authority granted to the president under the INA for national security grounds. In fact, Judge Robart provided no legal analysis in granting the TRO which the Ninth Circuit Court of Appeals upheld in a 29-page opinion that failed to include any statutory references. (See FAIR Legislative Update, Feb. 14, 2017)

The Immigration Reform Law Institute (IRLI), FAIR’s legal affiliate, pointed out the flaws in the states’ challenge in a friend-of-the-court brief filed in the Hawaii lawsuit. (IRLI Press Release, Mar. 10, 2017) In statement, Dale Wilcox, IRLI’s executive director said, “More than a hundred years ago, the U.S. Supreme Court stated, ‘The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.’” (Id.) “In our constitutional system, Congress has been delegated plenary power over immigration. It has enacted many statutes over decades that restrict alien-entry based on nationality, religion, and ideology; none of which Hawaii’s lawyers bother to deal with here. Through these statutes, Congress has given the President broad authority to control the entry of aliens into the United States who he deems detrimental to our interests,” Wilcox continued. (Id.) “The TRO should not issue and the case should be dismissed as lacking merit.” (Id.)

Bipartisan Group of Senators Call for More Foreign Workers to Replace Blue-Collar Americans

By: RJ Hauman

Last week, a bipartisan group of 32 senators led by Sens. Thom Tillis (R-NC) and Mark Warner (D-VA) called on the Department of Homeland Security (DHS) to maximize the use of blue-collar visas so U.S. companies can import more unskilled foreign workers instead hiring Americans. (Tillis Press Release, Mar. 6, 2017) In a letter to DHS Secretary John Kelly, the senators claimed that “In recent weeks, numerous businesses across the United States have contacted our offices expressing concern that the H-2B statutory cap will be reached soon, jeopardizing their small businesses and their American workers.” (Tillis and Warner Letter to DHS Secretary Kelly, Mar. 6, 2017) “As a result, small and seasonal businesses across the country, such as seafood processors and other critical hospitality and service businesses that are vital to the local economies in our states, will likely be locked out of a necessary program that they rely on during their busiest seasons,” the senators wrote. (Id.) “Failure to access these critical workers will harm small businesses, American workers, and the economy.” (Id.) (emphasis added) The Senators also requested that DHS conduct an audit to determine the number of “unused” visas during the first half of the fiscal year, and asked that any “unused” visas be provided to eligible businesses that have been unable to secure an “adequate” number of workers due to the cap. (Id.)

The H-2B nonimmigrant visa program allows U.S. employers who meet specific regulatory requirements to bring unskilled foreign workers to the United States to fill temporary non-agricultural jobs. (USCIS H-2B Program Fact Sheet) There is a statutory cap on the total number of foreign workers who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. (Id.) Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – Mar. 31) and 33,000 for workers who begin employment in the second half of the fiscal year (Apr. 1 – Sept. 30). (Id.) Any unused visas from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. (Id.) However, unused H-2B numbers from one fiscal year do not carry over into the next. (Id.)

While the 66,000 cap has been in place for some time, the program was briefly expanded by a provision buried in the Fiscal Year 2016 government funding bill. (See FAIR Legislative Update, Dec. 22, 2015) The provision expanded the visa program by saying that foreign H-2B workers would not count towards the annual 66,000 cap if they had worked for an H-2B employer during the prior three years. (Breitbart, Dec. 7, 2016) In effect, this “returning worker exemption” covertly quadrupled the size of the H-2B program to 264,000 for Fiscal Year 2016. (Id.) While the Fiscal Year 2017 government funding bill did not end up including this harmful provision, the Tillis/Warner letter shows that there is still an appetite in Congress to expand guest worker programs despite high unemployment rates for low-skilled American workers. FAIR will continue to oppose any effort that would provide employers with even more cheap foreign labor when they are more than able to find low-skilled workers to meet their needs within our borders.

Obama Administration Placed 106,000 UAMs with Illegal Alien Relatives, Many Disappeared into the Interior

By: Shari Rendall

A new report from the Center for Immigration Studies (CIS) found that the Obama administration placed 106,802 unaccompanied alien minors (UAMs) from Central America with illegal alien sponsors between Fiscal Years 2014 and 2016. (See CIS, Immigration Impunity Report, February 2017) During this same time period, the Border Patrol apprehended a total of 126,985 UAMs, meaning that 80 percent were delivered by the federal government to live with illegal alien relatives until their immigration court hearings. (Id.) Unsurprisingly, approximately 13,000 UAMs failed to appear at their hearings, representing 36 percent of the cases completed, and only 25 percent of UAMs qualified for permission to stay in the United States. (Id.) Importantly, a significant number of UAMs do not have their court date until years from now so the numbers who fail to appear is expected to increase.

The surge of UAMs and family units was fueled by the Obama administration’s lax enforcement policies and a loophole they created in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, allowing Central American UAMs to remain in the U.S. instead of being promptly returned to their home countries. Specifically, the Obama administration treated all Central American UAMs apprehended at the border as “trafficking victims” even when it was obvious they were smuggled to the border or willingly made the journey themselves. In doing so, the Obama administration released these Central American UAMs into the country with relatives and gave them  a “notice to appear” that set immigration court dates in the future. (See FAIR Legislative Update, Dec. 1, 2015) However, the illegal aliens referred to them as "permisos," or free passes, because they give permission to stay in the country while they await their appearance in already backlogged immigration courts. (Id.) This policy emboldened tens of thousands of Central American illegal aliens to surge across the southern border and the failure to send them home promptly encouraged others to come here unlawfully. (See Immigration Impunity Report, Feb. 2017) The National Border Patrol Council estimates that 80-90 percent of UAMs fail to show up for their hearing. (See FAIR Legislative Update, Feb. 16, 2016)

The extra layers of process imposed by the TVPRA have resulted in the federal government losing track of the whereabouts of many UAMs. Once these UAMs from Central America are apprehended at the border, they are screened, processed, and detained by U.S. Customs and Border Protection (CBP) under the Department of Homeland Security (DHS). (See FAIR UAM Fact Sheet) Within 72 hours, they must be turned over to Health and Human Services (HHS) and placed into a temporary immigration shelter. From there, HHS attempts to place the UAM with an adult sponsor —to care for them temporarily, pending the resolution of their case in immigration court. Once they are transferred to the care of a sponsor, HHS cedes all power and responsibility over the UAM. (Permanent Subcommittee on Investigations Staff Report, Jan. 28, 2016) The sponsors are not adequately monitored to ensure they comply with the provisions of the children’s placement. (CIS Report, Feb. 2017) After 30 days, HHS simply makes a follow-up call to check on the child’s well-being and safety. (Id.) In the first quarter of 2016, only 56 percent of children and 88 percent of sponsors even participated in the follow-up call. (Id.) HHS does not hold non-compliant sponsors accountable for immigration violations. (Id.)

In an effort to deter Central American UAMs and their family units, Department of Homeland Security Secretary John Kelly recently announced that the Trump administration is considering separating children from adults when they are trying to enter the country illegally at the southern border. (CNN, Mar. 7, 2017) This proposal would allow the adults could be kept in detention while the minors could be moved elsewhere under protected status discouraging UAMs and family units from making the journey. (Id.) Currently, when adults enter the country accompanied by children, they are generally released into the U.S. and able to stay in the country, pending disposition of their cases.

Southern Border Apprehensions Hit Five-Year Low

By: RJ Hauman

The number of people apprehended for illegally crossing the southern border dropped sharply last month, President Donald Trump’s first full month in office. (Washington Examiner, Mar. 8, 2017) In February, there were 18,762 total apprehensions, a figure lower than any of the totals seen over the last five years, according to U.S. Customs and Border Protection (CBP) statistics released last week. (CBP Southwest Border Migration Statistics) While apprehensions typically drop 10-20 percent between January and February, the 18,762 February 2017 apprehensions reflect a 40 percent decline compared to January’s 31,578 apprehensions. (Id.)

The Trump administration is pointing to the president’s immigration enforcement policies for the significant decrease in unlawful border crossings. Department of Homeland Security Secretary John Kelly touted the new apprehension numbers as an “unprecedented” change in trends and indicated that President Trump’s executive orders on immigration are already helping to reduce illicit traffic across the Southern border. (Id.) "Since the administration's implementation of Executive Orders to enforce immigration laws, apprehensions and inadmissible activity is trending toward the lowest monthly total in at least the last five years," Kelly said in a statement. (Id.) "The early results show that enforcement matters, deterrence matters, and that comprehensive immigration enforcement can make an impact,” he added. (Id.)

Lawmakers, Experts Expose Flaws in EB-5 Investor Visa Program; Reform Coming?

By: Shari Rendall

On March 8, 2017, the House Judiciary Committee held a hearing to examine the proposed regulation to reform the EB-5 investor visa program. (Judiciary Committee Hearing, Mar. 8, 2017) In the first panel, Senate Judiciary Chairman Chuck Grassley (R-IA) and Sen. Patrick Leahy (D-VT), who have introduced EB-5 reform legislation, both testified that the program has strayed from congressional intent and that their bill would reform the program. (Id.) In the meantime, both senators expressed support for the proposed regulation as an important first step to ending the status quo. (Id.) The second panel of witnesses were EB-5 policy experts and stakeholders, included Rebecca Gambler, Director of Homeland Security and Justice Issues at the Government Accountability Office; Sam Walls III, Managing Director of Pine State Regional Center; Angelique Brunner, Founder and President of EB5 Capital; Dekonti Mends-Cole, Director of Policy at the Center for Community Progress; and David North, Fellow at the Center for Immigration Studies.

The EB-5 visa program, which was first created by Congress in 1990 and has not been reformed in 25 years, allows foreigners to obtain green cards for themselves and their immediate family members by investing in a U.S. Citizenship and Immigration Services (USCIS) approved U.S. business that “creates or preserves” 10 full-time jobs. (INA § 203(b)(5); 8 U.S.C. § 1153(b)(5)) However, participation in the program was originally low, so in 1993, Congress created the “Immigrant Investor Pilot Program,” which has continued to this day, setting aside at least 3,000 visas (out of 10,000 for the whole EB-5 program) for immigrants who invest within designated “Regional Centers.” The “Regional Centers” are defined by USCIS as “any economic entity, public or private, which is involved with the promotion of economic growth.” (See FAIR Legislative Update, Apr. 26, 2016) The Regional Center Program (RCP) was promoted on the claim that it is supposed to benefit depressed or rural areas so participation in this program only required a $500,000 investment compared to $1 million for the original EB-5 program.

As one of his last acts, the Obama administration’s Department of Homeland Security Secretary Jeh Johnson issued a proposed rule on January 13, 2017 to address a few of the more glaring problems with the flawed EB-5 program. (See Federal Register, Jan. 13, 2017) Specifically, the proposed rule calls for:

  • Increase the minimum investment for all new EB-5 petitioners to $1.8 million to reflect the present-day value as adjusted for inflation using the Consumer Price Index for All Urban Consumers (CPI-U).

  • For those investing in a targeted employment area (TEA), the minimum amount would increase from $500,000 to $1.35 million, 75 percent of the minimum EB-5 amount.

  • It will end the gerrymandering of TEAs by defining a high-unemployment area as the census tract or tracts in which a project is principally doing business, and, at the discretion of the regional center, any or all census tracts directly adjacent to the project tract.

In his opening statement, House Judiciary Chairman Bob Goodlatte (R-VA) highlighted how almost all of the EB-5 visas go to aliens investing at the lower level meant for rural and poor areas while the projects are actually built in prosperous areas. (Goodlatte Statement, Mar.8, 2017)  According to Chairman Goodlate, “regional centers discovered that they can duct tape together ritzy high-rent districts with distant depressed zones in order that the combined area magically meets the high-unemployment test.” (Id.) 

Chairman Grassley testified that the regional center program needed to be completely overhauled and reformed or that it needed to expire.  Among the problems Chairman Grassley noted was that the 10  jobs the investor needs to create can be “indirect” and “based on vague estimates and economic modeling”  and the foreign national is able to count all jobs created even though their investment may be “a mere fraction of the total investment.”(Grassley Testimony, Mar. 8, 2017) He also highlighted how investments are not adequately vetted and there are not any prohibitions against foreign governments owning or operating regional centers thus truly making citizenship for sale. (Id.) Similarly, while testifying that he used to champion the EB-5 program, Senator Leahy said that it is now a magnet for fraud and securities violations. He highlighted that even in Vermont, the ski resort funded by EB-5, has “clearly shown the need for reforms and transparency.” (Leahy Testimony, Mar. 8, 2017, See FAIR Legislative Update, Apr. 26, 2016)

Center for Immigration Studies Fellow David North used his testimony to emphasize why the EB-5 program is unnecessary but also commented on the proposed regulation.  He highlighted how the EB-5 only brings in “one to three percent of the foreign money invested in the U.S. annually” (North Testimony, Mar. 8, 2017) In his testimony, he supported the proposed increase in the investment amount and drawing of TEAs but said the changes do not address the multi-million dollar scandals with both investors and middle men. (Id.) Further, he testified that the proposed changes to the EB-5 program did nothing to ensure that any jobs the program created went to “legal, full-time residents of the U.S.” (Id.)

FAIR opposes the EB-5 program, arguing that the U.S. should not be selling visas. FAIR is particularly critical of the looser requirements for the regional center programs which are routinely exploited. Rampant fraud and abuse uncovered at countless other regional center programs sites are predictable outcomes of a deeply flawed program that is simply beyond reforming. (See FAIR's Why Congress Must Let EB-5 Regional Centers Expire, Sept. 29, 2015) Congress temporarily extended the regional center programs through April 28. In light of the issues highlighted at the hearing, FAIR calls upon Congress to let the program expire.

Mississippi Advances Anti-Sanctuary Bill, Targets Campuses

By State & Local Government Relations

A Mississippi measure to defeat sanctuary policies is nearing passage after the House of Representatives approved it, 76-41, last week. (Hattiesburg American, Mar. 7, 2017) Sanctuary policies, which proponents argue are meant to foster “trust” with law enforcement in immigrant communities, are often designed to protect criminal aliens from detection and removal from the United State by restricting communication with federal officials and compliance with detainer requests, often called ICE holds.

Introduced by Senator Sean Tindell (R-49), Senate Bill (SB) 2710 specifically prohibits all localities and state agencies, including the state’s public universities and colleges, from adopting or implementing any policy that limits or prohibits communication or cooperation with federal agencies or officials. SB 2710 will therefore facilitate the enforcement of immigration law by federal immigration officials by allowing law enforcement and other public officials to cooperate with the federal agency as Congress intended.

Earlier this year, President Trump issued an executive order to withhold federal funds from jurisdictions with sanctuary policies. President Trump’s executive order explained that “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Additionally, it stated, “it is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” This statute explicitly prohibits sanctuary policies that restrict the sending, requesting, maintaining, or exchanging of information regarding a person's immigration status.

Chairman of the House Judiciary B committee, Representative Andy Gipson (R-77), supports SB 2710. “This doesn’t mandate any action, it just says we’re not going to turn a blind eye to the immigration law we have on the books. That’s federal law,” Gipson said. (Mississippi Today, Feb. 23, 2017)

Mississippi is just one of many states to consider passing anti-sanctuary legislation this year. State lawmakers around the country amplified the movement to combat these policies after mayors in many of the country’s largest sanctuary cities promised illegal alien residents that city officials will continue to ignore federal law following the election of President Donald Trump. (FAIR Legislative Update, Nov. 22, 2016) Lawmakers in at least 24 states have responded to the public outcry against sanctuary policies and introduced legislation to eliminate them in their states.

The Senate must concur on amendments made by the House before SB 2710 can be sent to the Governor Phil Bryant’s (R) desk for signature. Governor Bryant, a strong proponent of immigration enforcement, is expected to sign the bill. If enacted, SB 2710 will take effect immediately.