Legislative Update: 4/7/2015 
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Legislative Update: 4/7/2015

 

Pew: Employment Rate of Illegal Aliens Higher than Citizens

New data from the Pew Research Center found that illegal alien males are more likely to be working than male U.S. citizens or legal immigrants. Pew Senior Demographer Jeffrey Passel presented the data during a March 26 Senate Homeland Security and Governmental Affairs Committee hearing intended to be about securing the border but instead focused on granting amnesty to illegal aliens. (Video of the hearing available here)

According to Pew, in 2012 — the most recent data available — there were 8.1 million illegal aliens working in the U.S. unlawfully. (Passel Testimony, Mar. 26, 2015 at 6) Department of Labor statistics show that illegal aliens made up approximately 5.1% of the 155 million person workforce (82.3 million men; 72.7 million women) in 2012. (Department of Labor statistics) Pew's data found that illegal alien males of working age — defined as age 16 and older — are "considerably more likely to be in the workforce than U.S.-born men." (Passel Testimony at 6-7) Specifically, 91% of illegal alien males of working age are in the workforce compared to 79% of U.S. citizen males and 84% of male legal immigrants. (Id. at 7) Additionally, Pew found that 61% of illegal alien women are in the workforce compared to 72% of U.S.-born women. (Id.)

Pew's data also focused on the types of jobs illegal aliens have and the states where they make up the largest share of the workforce. "Because unauthorized immigrants tend to have less education than people born in the U.S. or legal immigrants, they are more likely to hold low-skilled jobs," the report noted. (Id.) Accordingly, approximately 56% of illegal alien workers work in three sectors: services (22%); leisure and hospitality (18%); and construction (16%). (Id.) By comparison, 31% of U.S.-born workers are employed in these three sectors. (Id.) Finally, Pew noted that manufacturing (13%) and agriculture (5%) have "relatively large shares" of the illegal alien workforce. (Id.) Illegal aliens represent the highest share of the labor force in Nevada (10.2%), California (9.4%), and Texas (8.9%). (Id. at 6)



Obama Administration Expands Crime Victim Visas to Cover Workplace Violations

The Obama Administration is expanding efforts to encourage illegal aliens to file claims against their employers for workplace violations. (Washington Examiner, Mar. 30, 2015) The Administration, through both the Department of Labor (DOL) and the National Labor Relations Board (NLRB) , has been expanding visas meant for the victims of serious crimes to cover workforce violations, and has enlisted the cooperation of foreign governments to find aliens who might file such claims. (Id.; Washington Examiner, Mar. 23, 2015; DOL Press Release, Apr. 2, 2015)

In the past two years, the NLRB has signed three agreements with Mexico, Ecuador, and the Philippines, to "educate" their nationals working in the U.S., both legally and illegally, about what claims workers can make under the National Labor Relations Act (NRLA). (NLRB Press Release, Aug. 7, 2013; NLRB Press Release, Aug. 19, 2014; NLRB Press Release, Oct. 22, 2014; Washington Examiner, Mar. 30, 2015) According to all three agreements, the consulates of those countries will try to locate their nationals working in the U.S., and help them contact NLRB investigators. (Id.) With this "outreach," aliens, both legal and illegal, will be better positioned to sue their employers for violations of federal labor law. The DOL and the Equal Employment Opportunity Commission both have similar agreements with all three consulates. (Id.)

The NLRB has promised that its investigators will ignore the immigration status of those filing claims against their employers under the NLRA, and the Administration will even help illegal aliens who testify obtain visas. (Washington Examiner, Mar. 23, 2015; NLRB General Counsel Memo, Feb. 27, 2015; DOL Press Release, Apr. 2, 2015) As no visa category exists for illegal aliens who cooperate with the NLRB and DOL to sue their employers, the Administration will be unilaterally expanding the definition of U and T visas, which are visas for victims of serious crimes. (Id.; see also, Immigrationreform.com, Apr, 2, 2015) The U visa is for those who have suffered "substantial mental or physical abuse" and the T Visa is for victims of human trafficking. (USCIS.gov) To obtain U and T visas, a law enforcement agency certifies that an alien is a crime victim and has been cooperating with a law enforcement agency to detect, investigate, and prosecute the crime. (USCIS.gov)

Secretary of the DOL, Tom Perez, formerly the president of the Board of Directors of the open-borders group Casa de Maryland, announced that the DOL would begin certifying T and U visas for an expanded category of workplace crimes last week. (FoxNewsLatino.com, Jul. 18, 2013; DOL Press Release, Apr. 2, 2015) The DOL's Wage and Hour Division will now be certifying visas for extortion, forced labor, and fraud in foreign labor contracting, as a fulfillment of one of the promises of unilateral amnesty made by the Administration last November to expand T and U visas. (DOL.gov) The T and U visa categories were first created by the Victims of Trafficking and Violence Protection Act of 2000. (PL-106-386) The law was originally intended to protect victims, particularly women, of severe forms of trafficking. (DOL.gov)

The Administration's plans to reward illegal aliens for harms suffered only because they chose to break the law by working in the U.S. illegally may not be compatible with Supreme Court precedent. (See Immigration and Nationality Act § 274A) A 2002 case, Hoffman Plastic Compounds, Inc. v. NLRB, in which the NLRB awarded back-pay to an illegal alien who had brought a claim against his former employer for violations of the NLRA, illustrates the problem. (Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 149 (2002)) The Supreme Court found that the NLRB could not award back-pay to illegal aliens because to do so "runs counter to policies underlying IRCA, policies the [NLRB] has no authority to enforce or administer." If rewarding an illegal alien with back-pay specifically for employment done in violation of the law is contrary to the spirit of IRCA, presumably, rewarding an illegal alien with legalization specifically for employment done in violation of the law is at least as contrary to the spirit of IRCA.

Meanwhile, organized labor itself has also stepped up its activities targeting illegal aliens recently. Last Thursday, the AFL-CIO launched a program it called "We Rise!" to "train union members and equip union halls around the country" to encourage illegal aliens to sign up for DACA and DAPA and to encourage eligible permanent residents to become citizens. (AFL-CIO Press Release, Apr. 2, 2015; Fox News Latino, Mar. 31, 2015) Union workers will assist illegal aliens to fill out DACA/DAPA applications. (AFL-CIO Press Release, Apr. 2, 2015) The AFL-CIO also plans to launch a related projected called "Working America We Rise!" to encourage "immigrant workers" to "join the labor movement." (Id.) Those who join "Working America We Rise!" can apply for a $250 grant to pay for their DACA or DAPA application fee. (Id.)



Senators Press Obama Administration for Details on Immigration Policy

Senate Republican critics of President Obama's immigration agenda sent several letters last week to administration officials seeking additional details. First, true immigration reformer Sen. Jeff Sessions (R-AL) spearheaded a letter to Homeland Security (DHS) Secretary Jeh Johnson regarding potential retaliation against DHS personnel who refuse to follow the President's executive amnesty policies. Additionally, Sen. Ted Cruz (R-TX) sent a letter to Health and Human Services (HHS) Secretary Sylvia Burwell about her agency's handling of the unaccompanied alien minors (UACs) who surged over the border last summer.

The Sessions letter, sent in his capacity as chairman of the Judiciary Immigration and National Interest Subcommittee and cosigned by all subcommittee Republicans, is in response to President Obama's implied threat to discipline or even fire DHS employees who follow the law instead of DHS' unlawful amnesty policies. (See FAIR Legislative Update, Mar. 3, 2015) Specifically, during a February MSNBC/Telemundo town hall event, the President said that any Immigration and Customs Enforcement (ICE) official who refuses to obey his executive actions would face "consequences." (Id.) In his letter to Johnson, Sessions wrote, "Not only do the President's statements ignore the plain language of several immigration statutes... the comments seem to comport with a pattern and practice of threats toward DHS personnel who seek to fulfill their duties under the law." (Sessions Letter to Secretary Johnson, Mar. 31, 2015) Citing "multiple allegations of targeting and retaliation against DHS personnel who refuse to comply with this Administration's willful disregard of our immigration laws" Sessions requests Secretary Johnson provide him:

  • The number of DHS employees disciplined over the past six years for alleged refusal to comply with "administratively-created enforcement priorities";
  • The number of lawsuits and complaints filed against DHS by current and former employees over the past six years related to the agency's enforcement priorities;
  • The written guidance DHS distributed to employees about potential discipline for refusing to comply with enforcement priorities (if such document exists); and
  • The authority DHS has to penalize employees for "their failure to comply with an unlawful and unconstitutional order." (Id.)

Senator Cruz sent his letter after receiving information that HHS is failing to properly screen and care for the UACs in the agency's custody. "I have been alerted to a number of specific problems regarding the manner in which the Department has handled, or mishandled, the UAC influx, including the potential failure to screen entrants for factors that might render them ineligible for entry into the United States...," Cruz wrote. (Cruz Letter to Secretary Burwell, Mar. 31, 2015) He continued, "The net effect of this inadequate screening process appears to be that individuals who are not minors, have criminal backgrounds in their home countries or other countries, or are affiliated with gangs or other criminal organizations are being processed by the Department as innocent minors." (Id.) Calling the screening issue, along with several other issues related to UACs, "serious and ongoing," Cruz requested Secretary Burwell provide the Senate Judiciary Committee by April 14 with an extensive list of documents relating to UACs since 2009. (Id.)



Georgia Legislature Fails to Pass Driver's License Ban for Illegal Aliens Granted Amnesty

Last week, the Georgia Senate rejected a proposal that would have stopped illegal aliens granted deferred action under President Obama's executive amnesty from receiving driver's licenses in Georgia. (International Business Times, Mar. 31, 2015) State Senator Josh McKoon brought the proposal as a floor amendment to House Bill 118, which amends the Georgia's commercial license law in order to comply with federal law. (Id.)

The Senate voted against Senator McKoon's amendment, despite recent polling that indicates Georgia voters overwhelming oppose allowing illegal aliens, even those who have received deferred action, to receive driver's licenses. (Georgia Poll) Sixty-four percent of registered voters in Georgia support Senator McKoon's proposal, with only 21% of voters opposing. (Id.)

Senator McKoon introduced the proposal to close the loophole that allows illegal aliens to receive Georgia driver's licenses. Currently, Georgia law allows driver's license applicants to present documents showing a grant of deferred action to meet its lawful presence requirement. (O.C.G.A. 40-5-21.1) "Previously, Georgia law restricted illegal aliens from getting a driver's license," said Senator McKoon. (Senate Press, Nov. 17, 2014) "When the President created the ‘deferred action status' class, he deliberately created a loophole to make millions of illegal aliens eligible for Georgia driver's licenses and other public benefits." (Id.)

Currently, only 10 states have laws that grant driving privileges to illegal aliens. However, President Obama's executive amnesty will make illegal aliens eligible for driver's licenses in up to 48 states, in addition to shielding illegal aliens from deportation and rewarding them with work authorization. Specifically, by ordering the Department of Homeland Security to expand the Deferred Action for Childhood Arrivals program, create a new deferred action program for illegal alien parents of citizens and green card holders, and expand parole-in-place illegal aliens in the United States, approximately 5 million illegal aliens will gain access to government-issued driver's licenses and identification cards despite federal statutes that require the government to deport them.