Legislative Update: 4/11/2017 
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Legislative Update: 4/11/2017

Victory in Maryland, Sanctuary Bills Defeated in Senate

By State & Local Government Relations

Legislation that would have made Maryland a sanctuary state failed this session because of its lack of support among constituents and within the Maryland Senate. (Baltimore Sun, Apr. 10, 2017) The Maryland Senate refused to advance House Bill (HB) 1362, which the House of Delegates passed in March to shield illegal aliens who commit crimes from immigration enforcement by prohibiting law enforcement from cooperating with federal immigration officials. (HB 1362) The legislation would have also granted state and local government officials immunity from any harm caused to residents as a result of their refusal to communicate immigration status information with federal officials. (Id.) Additionally, the Senate Judiciary Committee killed Senate Bill (SB) 835, the Senate’s version of the sanctuary measure on Monday.

Public outrage against the legislation intensified after news broke that a 14 year-old girl was brutally raped by two illegal alien students in a Rockville high school late last month. (Fox News, Mar. 21, 2017) Multiple news reports indicated that the suspects had both entered the country illegally within the past year as part of the influx of unaccompanied minors and family units from Central America. (Id.) At least one suspect had an outstanding removal order. (Id.; Fox 5, Mar. 20, 2017) 

Senate President Thomas V. Mike Miller announced last Wednesday that the Senate would not advance sanctuary legislation as passed by the House of Delegates. (Baltimore Sun, Mar. 29, 2017) “Our churches are not sanctuaries, our colleges are not sanctuaries, our cities are not sanctuaries,” said Senate President Miller. “The bill as it passed the House is not going to pass the Senate,” he said.

Governor Larry Hogan has also been a vocal opponent to the sanctuary legislation introduced this session. (ABC 2 News, Mar. 21, 2017) After the House of Delegates approved House Bill 1362, Governor Hogan released a statement warning that he would veto the measure, stating, “This legislation would interfere with our state and local law enforcement's ability to cooperate with federal law enforcement authorities. I will veto this dangerously misguided legislation the moment that it reaches my desk.” (Governor’s Statement) 

Additionally, several prominent law enforcement officials slammed the measures and opposed turning Maryland into a sanctuary state. (Fox 5 DC, Apr. 3, 2017) “Not only will it make it a sanctuary state, but a magnet state,” commented Sheriff Chuck Jenkins of Frederick County. (Id.) “Meaning anybody can come into this state, commit a serious crime, a violent crime without any fear of removal. That’s a bad thing, so not only will we become a sanctuary, we will become a magnet for criminal activity.” (Id.)

The General Assembly adjourned Monday evening and will not reconvene until January 2018. HB 1362 and SB 835’s defeat marks a major victory to true immigration reformers in Maryland.



Kelly Touts Historic Drop in Border Apprehensions, Defends Border Wall at Senate Hearing

By: RJ Hauman

Appearing at a Senate Homeland Security and Governmental Affairs committee hearing last Wednesday, Department of Homeland Security (DHS) Secretary John Kelly revealed that the number of people apprehended for illegally crossing the southern border plummeted to the lowest monthly figure in 17 years. (Senate HSGAC Hearing, Apr. 5, 2017) According to Kelly, there were less than 17,000 apprehensions in March, a figure approximately 71 percent lower than the December 2016 total of 58,478. (Secretary Kelly Written Testimony, Apr. 5, 2017) Kelly also reported a significant decline in unaccompanied alien minor (UAM) and family unit apprehensions. (Id.) Less than 1,000 UAMs were apprehended and fewer than 1,100 family units were caught crossing the border last month, compared to 7,000 UACs and 16,000 family units in December. (Id.)

It is worth noting that apprehensions for the last two months have decreased dramatically during a time of the year that typically sees marked increases. (Id.) In his testimony, Kelly stated that the decrease in apprehensions is no accident, but rather an early indication of success from the implementation of President Trump’s Executive Orders to enforce immigration laws and enhance border security. (Id.; see FAIR’s Trump Executive Actions Resource Page) However, Kelly cautioned that the “absolutely amazing” drop in the number of border apprehensions could be short-lived. (BGOV Transcript, Apr. 5, 2017) “It won’t last unless we do something, again, to secure the border,” he said. (Id.)

Kelly also addressed President Trump’s proposed border wall at the hearing, saying that while specifications are forthcoming, border walls are a proven way to secure a border. (Id.) “What it’ll look like, how tall it will be, how thick it will be, what color it will be, is yet to be determined. All we know is that physical barriers do work if they’re put in the right places,” he said. (Id.) Kelly also noted that border patrol agents know exactly where border infrastructure is needed and that the government will rely on experienced agents to pinpoint target areas. (Id.) “It’s unlikely that we will build a wall or a physical barrier from sea to shining sea, but we’ll do something across the southwest border,” Kelly said. (Id.)

Despite Kelly’s willingness to move ahead with border wall construction where it is most feasible, lawmakers in both parties are objecting to the inclusion of border infrastructure funding in an upcoming spending bill to keep the government open beyond April 28. (The Hill, Apr. 9, 2017) In his recently released budget request, President Trump asked for $1.4 billion to pay for the initial development of the wall. (Id.) But hoping to prevent a government shutdown, House Speaker Paul Ryan has signaled that he will largely delay the wall funding debate until September, when Congress takes up individual appropriations bills for Fiscal Year 2018. (Id.) Until then, Kelly's only option is to reprogram funding within existing DHS appropriations to begin construction.



Trump Administration Takes Steps to Protect American Tech Workers

By: Robert Law

Several key Trump administration departments announced they are taking steps to prevent companies from using the H-1B nonimmigrant visa to discriminate against American tech workers. On April 3—the day the H-1B lottery opened for the next fiscal year—U.S. Citizenship and Immigration Services (USCIS), a component of DHS, announced policy changes, including “targeted” worksite visits, to “further deter and detect H-1B visa fraud abuse.” (USCIS Press Release, Apr. 3, 2017) “The H-1B visa program should help U.S. companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country,” the agency said. (Id.) “Yet, too many American workers who are as qualified, willing and deserving to work in these fields have been ignored or unfairly disadvantaged.” (Id.) Similarly, the Departments of Justice and Labor “cautioned” employers seeking H-1B workers “not to discriminate against U.S. workers.” (See DOJ Press Release, Apr. 3, 2017; Law360, Apr. 5, 2017) “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously protecting these claims,” said Tom Wheeler, Acting Assistant Attorney General of the civil rights division. (DOJ Press Release, Apr. 3, 2017)

Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers, purported on a “temporary” basis, for “specialty occupations.” The visa is most commonly associated with “high skilled” jobs, namely those in the science, technology, engineering, and mathematics (STEM) fields. (Immigration and Nationality Act (INA) § 101(a)(H)(15)) The law was written to appear to provide protections for American workers by requiring companies to pay H-1B workers the “prevailing wage” for their job and not adversely affect the working conditions of American workers “similarly employed.” (See INA § 212(n)(1))(emphasis added)

However, these protections are misleading because of the way Congress defined the “prevailing wage.” According to the statute, the “prevailing wage” is calculated using a governmental survey that provides “at least four levels of wages commensurate with experience, education, and the level of supervision.” (INA § 212(p)(4)) This language allows the employer to determine the prevailing wage based on the position description rather than the H-1B worker’s actual skill level. Therefore, employers can legally replace Americans with cheaper foreign workers by claiming the H-1B position is different than the displaced American worker’s (regardless of actual job responsibilities) and not in violation of the “similarly employed” provision. Additionally, these same statutes allow employers to legally hire H-1Bs instead of hiring Americans.

While a step in the right direction, the Trump administration’s new policy falls well short of the president’s campaign promise on H-1B visas. Throughout the election cycle, Trump pledged to “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program.” (See Washington Times, Apr. 4, 2017) Influential immigration enforcement groups expressed disappointment in the limited scope of this new policy. “He didn’t have to do much on H-1B, but he hasn’t even done a little,” said Mark Krikorian, executive director of the Center for Immigration Studies. (Washington Times, Apr. 4, 2017) FAIR’s research director, Matt O’Brien, added, “It’s the tension between a former businessman who is now the president in a down economy wanting to do anything he can to dive the economy and trying to balance business concerns with labor and national security concerns.” (Id.)



Trump Administration Details “Extreme Vetting” Measures

By Shari Rendall

The Trump administration is finally shedding light on what the President’s promise to use “extreme vetting” details. Through his successful presidential campaign, Trump vowed to use “extreme vetting” to prevent terrorists from exploiting the immigration system to enter the country to cause harm. Trump reiterated this promise in the “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order issued on March 6, calling for the “development of a uniform baseline for screening and vetting standards and procedures” remains in effect. (See FAIR Legislative Update, Mar. 7, 2017; President Trump's National Security Executive Order, Mar. 6, 2017)

Now, key Trump officials are hinting at what exactly “extreme vetting” procedures could look like. (Wall Street Journal, Apr. 4, 2017) One of those measures would make visitors, and those seeking to immigrate to the United States, provide immigration officials with their cell phone contacts. (Id.) Another would require individuals seeking entry into the country to provide their social media accounts and passwords so officials can see what are doing both publicly and privately – who they are contacting and which Internet sites they are frequenting. (Id.) In addition to these more intense security reviews, the administration would also conduct a more thorough in-person interview. (Id.) Gene Hamilton, Senior Counselor to Homeland Security Secretary John Kelly, said, “If there is any doubt about a person’s intentions coming to the United States, they should have to overcome – really and truly prove to our satisfaction – that they are coming for legitimate reasons.” (Id.)

Additionally, the administration disclosed that is also considering an “ideological test” (mentioned by President Trump on the campaign trail) to ensure that those who come to the U.S. support the Constitution and would not put other ideology over American law. (Id.) Questions being considered include whether visa applicants believe in so-called “honor killings,” how they view the treatment of women in society, whether they value the “sanctity of human life” and who they view as a legitimate target in a military operation. (Id.) Officials state the purpose of these questions is not to filter out individuals who hold differing opinions, but to keep those who might act on their opinions out of the country. (Id.) A recent Rasmussen poll found that 61 percent of American adults favor a proposal to keep out those who don’t share “our values or a belief in our basic constitutional freedoms.” (See Rasmussen Poll, Feb. 24, 2017)

The administration is hinting that the vetting practices could apply to individuals from nearly every country in the world, including those currently enrolled in the Visa Waiver Program. (Wall Street Journal, Apr. 4, 2017) Although many of these countries are considered close allies, most European nations have immigrant populations from countries where terrorist organizations are known to operate. (See FAIR Issue Brief, December 2016) Furthermore, European Union (EU) countries use the Common European Asylum System, a 2005 set of EU laws that set minimum standards for refugee processing and allow refugees unrestricted travel throughout the EU. (See Open Society Foundation Explainers, December 2016) With German Chancellor Angela Merkel opening Germany’s borders to accepting 800,000 Syrian refugees that were not well vetted in 2015, refugees could travel unfettered among Europe. Chancellor Merkel admitted that the refugee flow “was even used to smuggle terrorists.” (The Washington Free Beacon, July 11, 2016)