Legislative Update: 3/31/2015
Obama Loosens Rules on Corporate Visas
Last week, President Obama took another executive action on immigration that further increase the number of guest workers the U.S. admits each year. Through a U.S. Citizenship and Immigration Services (USCIS) policy memorandum, the Obama Administration is unilaterally watering down the eligibility requirements for the L-1B nonimmigrant visa program. The L-visa was created to enable multinational corporations to temporarily transfer their top-level employees with "specialized knowledge" of the corporation to assist its affiliates in the United States. (INA § 101(a)(15)(L))
Through the USCIS memo, President Obama intends to broaden the definition of "specialized knowledge" to such a degree that nearly any foreign employee could qualify for an L-1B visa. Now, an L-1B applicant needs "special knowledge, which is knowledge of the petitioning employer's product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer. (USCIS Policy Memo PM-602-0111, Mar. 24, 2015 at 7)
However, the new DHS memo provides a non-exhaustive list of factors USCIS may consider when evaluating an applicant for the "special knowledge," yet provides no guidance on how USCIS should weigh these factors. (Id. at 8) If USCIS determines L-1B applicants lack "special knowledge" they can still grant the aliens an L-1B visa if they possess "advanced knowledge, which is knowledge or expertise in the organization's specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in process, complexity and understanding than that generally found within the petitioning employer." (Id. at 7) The memo emphasizes that an applicant can meet the "advanced knowledge" standard even if the knowledge is not proprietary or even narrowly held within the organization. (Id. at 7, 9)
Additionally, the memo takes several other steps to loosen the L-1B requirements. First, the memo provides that USCIS adjudicators cannot consider the availability of American workers for the position when evaluating an L-1B application. "A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States." (Id. at 9) Since the L-1 visa does not have a minimum wage requirement, employers will be legally able to discriminate against American workers in favor of cheaper foreign labor. Also, the memo reduces the burden on L-1B applicants as they no longer have to demonstrate that there is a legitimate need for the L-1B worker. According to the memo, "Even if an officer has some doubt about a claim, the petitioner will have satisfied the standard of proof if it submits relevant, probative, and credible evidence… that leads to the conclusion that the claim is ‘more likely than not' or ‘probably' true." (Id. at 5-6)(emphasis added)
The implication of these changes is clear. Unlike other guest worker visa programs, there is no annual cap for the number of L-1B visas admitted into the country. By lowering the standard to qualify for an L-1B visa, the Obama Administration is encouraging corporations to sponsor a wave of L-1B foreign workers who will flood the U.S. labor market.
USCIS Director Leon Rodriguez defended the changes in a press release accompanying the policy memo. "This policy memorandum… will help companies in the United States better use the skills of talented employees in the global marketplace," said Rodriguez. (USCIS Press Release, Mar. 24, 2015) "These changes maintain the integrity of the L-1B program while recognizing the fluid dynamics of the 21st century business world," he insisted. (Id.)
However, Professor Ron Hira — a leading expert of the H-1B and L-1 visa programs — blasted the changes. "The L-1B is much worse than the H-1B program in terms of its impacts on American workers and the American economy," charged Hira. (Washington Examiner, Mar. 25, 2015) "There are no wage standards — foreign workers can be paid home country wages, which is $6,000 a year for an IT worker in India. American workers can be displaced by L-1B workers. There are no recruitment requirements and no educational requirements (the L-1B worker doesn't even need a degree)." (Id.)
The policy memo is currently in a 45-day public comment period until May 8 and the changes to the program are set to go into effect on August 31.
Republicans Blast Sanctuary City Policies; ICE Director Wavers
On March 23, four Republican members of Congress sent a letter to Department of Homeland Security (DHS) Secretary Jeh Johnson, challenging the Administration for undermining Immigration and Custom Enforcement (ICE) detainers. (Letter to Johnson from Sessions, Cornyn, Goodlatte, and Gowdy, Mar. 23, 2015) They pointed out that ICE's early March dragnet, which captured 2,059 illegal aliens convicted of serious crimes, would not have been necessary if state and local jurisdictions would cooperate with ICE and if DHS had not ended the Secure Communities Program. (Id.; see FAIR Legislative Update, Mar. 24, 2015; see FAIR Legislative Update, Nov. 24, 2014)
While ICE Director Sarah Saldaña touted the operation for taking criminals "off our streets," and exemplifying the agency's "commitment to making our communities safer," the Congressmen pointed out that aliens already convicted of serious crimes should never have been on the streets in the first place. (ICE Press Release, Mar. 9, 2015; Letter to Johnson, Mar. 23, 2015) "Costly operations to apprehend at-large criminal aliens," who have committed crimes like manslaughter, robbery, kidnapping, rape, and child pornography, are needed only because state and local jurisdictions do not cooperate with ICE, they wrote. (Id.) These "sanctuary cities" refuse to honor ICE detainers, to advise ICE before releasing criminal aliens, or to allow ICE access to detention facilities, it said. (Id.)
The need for the sweeps, the Congressmen argued, would be "considerably mitigated" if the Administration had not ended Secure Communities and significantly curtailed the ability of ICE Enforcement and Removal Operations (ERO) to issue ICE detainers. (Id.) They complained that ERO officers put themselves at "great risk" in pursuing the dangerous criminals that they should simply be able to pick up from state or local facilities in a "safe and predictable" setting. (Id.) Furthermore, they said, releasing them back into the community, "where they often commit additional and more heinous crimes" greatly compromises "public safety." (Id.) Indeed, some of the targets of ICE's dragnet remain at large even after the operation, such as the two added to ICE's most wanted fugitives list. (ICE Press Release, Mar. 9, 2015)
The Congressmen asked DHS to provide a number of details on the aliens arrested through the operation, on a monthly basis, until the aliens are removed from the country. (Letter to Johnson, Mar. 23, 2015) "We are committed to holding the administration accountable for its failure to defend its own detainer authorities," the Congressmen said, and to protect the public "from reckless ‘sanctuary'" policies. (Id.)
Ironically, only a few days before the letter was sent, ICE director Sarah Saldaña herself indicated that she would welcome help from Congress in eradicating sanctuary policies. (Washington Times, Mar. 20, 2014) In a House Oversight and Government Reform hearing on March 19, under questioning by Rep. Mick Mulvaney (R-SC) about such non-cooperation by state and local jurisdictions, she said "I enlist the help of anybody I can get on this issue." (Id.; House Oversight Committee, Mar. 19, 2015; Bloomberg Government Transcript, Mar. 19, 2015) When Rep. Mulvaney maintained that state and local failure to cooperate was already illegal and asked if it would help her if Congress "clarified" the law "to make it clear" that it is "mandatory" for local jurisdictions to cooperate with ICE, she answered, emphatically: "Thank you. Amen, Yes." (Id.)
By the next day, however, under pressure from amnesty advocates, Ms. Saldaña, who has only been ICE director for three months, backtracked. (Washington Times, Mar. 20, 2014; Huffington Post, Mar. 19, 2015) In a statement on March 20, she claimed that she "fully supported" Secretary Johnson's policy ending the Secure Communities program, stating, as Secretary Johnson had earlier, that the program was "legally and politically controversial." (ICE Press Release, Mar. 20, 2015; DHS Press Release, Mar. 10, 2015; see FAIR Legislative Update, Sept. 30, 2014) "Any effort at federal legislation" to force state and local jurisdictions to cooperate with ICE detainers, she said, would be "counterproductive" and lead to "more resistance" from local jurisdictions. (ICE Press Release, Mar. 20, 2015) Secretary Johnson and Ms. Saldaña met with amnesty advocates soon after DHS released the statement, where, reportedly, Ms. Saldaña, surprised at the backlash from her comments, tried to "explain" them but was interrupted by Secretary Johnson reading aloud from her public statement. (Huffington Post, Mar. 26, 2015)
IG: Mayorkas Improperly Influenced EB-5 Decisions
A Department of Homeland Security (DHS) Inspector General report released last week found that Alejandro Mayorkas improperly influenced the approval of EB-5 visas as director of U.S. Citizenship and Immigration Services (USCIS). Mayorkas was confirmed by the Senate as DHS deputy director — the number two position — in December 2013 despite the investigation pending against him at the time. (See FAIR Legislative Update, Dec. 23, 2013; FAIR Legislative Update, July 30, 2013)
The investigation into Mayorkas began in 2012 following allegations of impropriety by at least 15 career USCIS employee whistleblowers regarding his personal involvement in certain EB-5 visa applications. (DHS Inspector General Report, Mar. 24, 2015 at 1-2) The EB-5 visa program grants foreign investors a green card if they invest between $500,000 and $1 million into a new business that creates a certain number of jobs for U.S. workers. (INA § 203(b)(5); INA § 216A) Inspector General (IG) John Roth noted that the whistleblowers' "allegations were unequivocal: Mr. Mayorkas gave special access and treatment to certain individuals and parties." (IG Report at 3) "They told us he created special processes and revised existing policies in the EB-5 program to accommodate specific parties." (Id.) Adding credence to the whistleblowers' claims, the IG "found a number of instances in which Mr. Mayorkas declined to become involved in certain matters, stating that he did not think it would be appropriate for the Director to do so." (Id. at 1)(emphasis added) The report further noted that the "number and variety of witnesses is highly unusual" and that "a significant percentage of the witnesses" insisted on their identities remaining confidential. (Id. at 2-3)
Specifically, the report focused on three cases that "USCIS personnel consistently made allegations about." (Id. at 6) "In each instance, Mr. Mayorkas was in contact with individuals perceived by career USCIS employees to be politically powerful and intervened in the adjudicative process in unprecedented ways to the stakeholders' benefit." (Id.) In the first instance, Mayorkas stepped in to order expedited review for a Las Vegas hotel and casino after career staff originally declined. (Id.) Mayorkas intervened at the request of then-Senate Majority Leader Harry Reid (D-NV) and the IG noted that Mayorkas took the "extraordinary step" of instructing staff to brief Reid's office weekly on the status of the review. (Id.)(For more details of Mayorkas's impropriety in this case see pp. 29-37) In the second case, Mayorkas personally intervened in an administrative appeal involving the denial for an EB-5 regional center request affiliated to now-Governor Terry McAuliffee (D-VA). (Id.at 6) The IG classified Mayorkas's involvement as "unprecedented" and "staff perceived it as politically motivated." (Id.) (For more details of Mayorkas's impropriety in this case see pp. 38-52, 59-65)
The third instance involved two projects in the Los Angeles film industry. First, Mayorkas overruled the denial of a funding proposal linked to Sony and former Governor Ed Rendell (D-PA). (Id. at 6) Then, Mayorkas created a review board of "hand-picked" staffers to review a project affiliated with Time Warner. (Id.) The IG found that the board "was never used again" after reversing the denial and "[r]emarkably, there is no record of the proceedings of this board." (Id.)(For more details of Mayorkas's impropriety in this case see pp. 15-29, 54-58) The report concludes, "In each of these three instances, but for Mr. Mayorkas' intervention, the matter would have been decided differently." (Id. at 1)
In a statement, Mayorkas dismissed the findings of the IG's report. "While I disagree with the Inspector General's report, I will certainly learn from it and from this process," Mayorkas said. (Mayorkas Statement, Mar. 24, 2015) He continued, "The EB-5 program was badly broken when I arrived at USCIS... I could not and did not turn my back on my responsibility to address those grave problems. I made improving the program a priority and I did so in a hands-on manner, through cases, policies, and sweeping personnel and organizational changes." (Id.)
DHS Secretary Jeh Johnson issued a statement fully supporting Mayorkas. "I continue to have full confidence in Ali Mayorkas. He is doing an outstanding job as Deputy Secretary," Johnson said. (Johnson Statement, Mar. 24, 2015) He continued, "Ali works hard to do the right thing, and never acts, in my observation, for reasons of personal advancement or aggrandizement." (Id.) "As public servants, we must maintain the trust and confidence of all of those around us, and be above reproach. I have discussed this with Deputy Secretary Mayorkas and I am confident he understands this." (Id.)
Second Wave of UACs Coming, Only 1 in 6 Returned
Despite past claims by the Administration of substantial success in resolving the crisis of unaccompanied alien minors (UACs) streaming across the border, Department of Homeland Security (DHS) records show that a second surge of minors crossing the border is in full swing. (See FAIR Legislative Update Jun. 4, 2014; DHS Press Release, Oct. 9, 2014; Washington Examiner, Mar. 23, 2015; Customs and Border Protection website, accessed on Mar. 27, 2015) Customs and Border Protection (CBP) records indicate that the Border Patrol has seized over 12,000 UACs so far in fiscal year 2015 (Oct. 1, 2014- Feb. 28, 2015) and over 10,000 aliens traveling in family units. (Customs and Border Protection website, accessed on Mar. 27, 2015) The Border Patrol is transferring these aliens to Immigration and Customs Enforcement (ICE) at an average of 2,000 UACs a month, meaning that the Border Patrol is returning only one in six of these apprehended minors to their home countries. (Washington Examiner, Mar. 23, 2015)
These numbers reveal that at the rate the UACs are currently crossing the southern border this year will be second only to last year. (Id.) Other than the small number sent home, these minors are released into the U.S. with a hearing date in three to five years. (Id.) Cities and towns that received a large number of UACs last year will likely see more UACs arriving this year, particularly as the numbers of aliens actually apprehended at the border may be only about half of those trying to cross. (Id.; seeWashington Post, May 13, 2013) While a small number of the minors are very young, the largest group is 17 year-olds, with boys outnumbering girls two to one. (Washington Examiner, Mar. 23, 2015)
Last Thursday, at a hearing before the Senate Homeland Security and Governmental Affairs Committee, a panel of experts addressed the issue of the continuing UAC crisis. (See Senate Homeland Security and Governmental Affairs Committee, Mar. 25, 2015; Bloomberg Government Transcript, Mar. 26, 2016) Roger Noriega, a former Assistant Secretary for Western Hemisphere affairs at the Department of State, testified that the numbers of UACs apprehended by the Border Patrol had gone up so rapidly between 2011 and 2014 that the crisis is not over even though UAC apprehensions have dropped from last year. (Id.) While the numbers so far in 2015 are down 42% from 2014, he said, the figure in 2014 was five times that of 2012, and 12 times higher than 2011. (Id.) The government will not have a "handle" on the problem, he stated, until those numbers are back to what they were three or four years ago. (Id.)
The panel also explored why attempts at stopping the flow of minors across the border that do not involve sending those minors home are bound to fail. (Id.) Senator Ron Johnson (R-WI) asked if the "counter advertising" campaign of the Administration, meant to refute the advertisements of "coyotes" that minors who reach the U.S. will be allowed to stay indefinitely, had been effective. (Id.) Mr. Noriega answered that no counter advertising could be effective if the promises of the human traffickers were accurate in practice. (Id.) He explained that when illegal aliens arrive and are released into the country with a notice for a hearing at a future date, they assume they are "home free" and by the time they need to appear "there is going to be an amnesty or a legalization." (Id.) He also predicted that, with human trafficking a "$6 billion" business, and executive amnesty continuing to offer an additional incentive to cross the border illegally, the crisis will get worse. (Id.) Adolfo Franco, a former Assistant Administrator for Latin America and the Caribbean the U.S. Agency for International Development, added that Central Americans now have "a sense that the law in the U.S. has changed" and that it is now easier to get a "work permit and a Social Security number." (Id.)
Texas Committee Considers Bill to Ban Sanctuary Policies
On April 6, the Texas Senate Veterans Affairs & Military Installations Subcommittee on Border Security will hold a public hearing on Senate Bill ("S.B.") 185 to stop public officials from instituting policies that prohibit their employees from cooperating with federal immigration officials. These types of policies, often called "sanctuary" policies, seek to obstruct the enforcement of immigration law by limiting local law enforcement's ability to cooperate with the United States Immigration and Customs Enforcement ("ICE").
Specifically, S.B. 185 prohibits all state and local entities from adopting any rule, order, ordinance, or policy that would contravene a state or federal law concerning the enforcement of immigration law. (S.B. 185) S.B. 185 also prohibits state and local entities from prohibiting any of its employees from communicating or cooperating with ICE or inquiring into the immigration status of a person lawfully detained for investigation of a criminal offense. (Id.)Under the bill, any state or local entity that violates these prohibitions will be barred from receiving state grant funds. (Id.)
Senator Charles Perry introduced S.B. 185 to address the growing number of cities in Texas refusing to cooperate with federal immigration officials. (Texas Tribune, Mar. 16, 2015) Currently, major cities, including Austin, Dallas, El Paso and Houston, have implemented policies that impede the enforcement of immigration law. (Id.) "This is not an anti-immigration bill — it's a rule-of-law bill," Sen. Perry said to members of the Veteran Affairs and Military Installations Subcommittee on Border Security. "Our bill is simple, cities cannot pick and choose the laws they want to enforce; public safety, not political correctness should be the priority," stated Sen. Perry. (Texas Tribune, Mar. 9, 2015)
Sanctuary policies often waste both federal and state law enforcement resources and create safe havens that facilitate criminal activity, especially in regard to drug- and gang- related crimes, human trafficking, and identity theft. To be successful in deporting criminal aliens, ICE needs the assistance of state and local law enforcement agencies, both in terms of notification of a pending release and a compliance with detainers. Local agencies that do not cooperate with ICE are often forced to simply release criminal aliens back onto the streets.
The full Senate and House of Representatives must approve S.B. 185 before it can be sent to the governor for approval. Governor Greg Abbott, a strong supporter of immigration enforcement, is likely to sign S.B. 185 if it makes it to his desk.