In this Update:

House Reauthorizes E-Verify; Senate Remains Deadlocked

House Subcommittee Passes Three Immigration Bills

House Passes Bipartisan Bill Targeting Illegal Maritime Border Crossings

Concerns Raised About 2010 Apportionment and Illegal Aliens

Prison Sentences for Border Patrol Agents Upheld

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

House Reauthorizes E-Verify; Senate Remains Deadlocked

Last week, the House passed H.R.6633, the Employee Verification Amendment Act of 2008, reauthorizing the E-Verify program for five years and ending weeks of deadlocked debate that threatened the future of the program. E-Verify, formally know as the Basic Pilot Program, was established in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act and has become an effective and proven tool for ensuring a legal workforce, protecting wages, and fighting illegal immigration. The House passed the bill by a vote of 407-2, but similar legislation must pass the Senate, which adjourned for the August recess before taking up reauthorization of E-Verify. (Roll Call 557, July 31, 2008)

The bill is the result of delicate bipartisan negotiation between the House Judiciary and Ways and Means Committees and though the bill received 407 votes, few Members expressed contentment with the final bill. A spokeswoman for Representative Gabrielle Giffords (D-AZ), the bill's primary sponsor, told The Hill, "Congresswoman Giffords still thinks a better program than E-Verify should be in place […] and now we don't have to wait 10 years for Congress to look at this again." (The Hill, July 31, 2008) Representative Ken Calvert (R-CA) noted, "I would have preferred clean E-Verify reauthorization, but that apparently wasn't in the cards." (Id.) Representative Luis Gutierrez (D-IL) added, "Obviously this was a compromise led by more conservative members of the Democratic Caucus and by Republicans." (Id.)

The compromise legislation addresses Members' concerns about reimbursement agreements between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) and the accuracy rates of the E-Verify program. In addition to reauthorizing E-Verify for five years, H.R.6633 also incorporates language requiring the DHS and SSA to enter into a reimbursement agreement. (Section 3(a)) Earlier drafts of this language included a provision which would have killed the E-Verify program if DHS ever failed to enter into the agreement with SSA, but H.R.6633 prevents this by requiring that the previous fiscal year agreement be carried over until a new agreement can be reached. (Section 3(c)) Sections 5 and 6 of H.R.6633 require the Government Accountability Office (GAO) to conduct two studies on the E-Verify program to determine the causes of errors in non-confirmations and the economic impacts that small entities incur from enrolling in the program.

During the debate, Members from both sides of the aisle expressed their desire to see the E-Verify program strengthened and to decrease the rate of response errors. Representative Zoe Lofgren (D-CA) said, "If all goes well to refine and improve this system going forward, it will not take the 5 years that is provided for in this act. But certainly none of us wants the current system to go away while we continue to work to improve and get an even better system." (Congressional Record, July 30, 2008, Pg. H7589) Addressing criticisms that the program is inaccurate, Representative Lamar Smith (R-TX) told Members on the floor that the "facts about these databases could not be more encouraging." Noting that the program has only a .6 percent error rate, Smith added, "This is a success rate any company in America would be happy to have." (Congressional Record, July 30, 2008, Pg. H7590)

Despite the House's passage of the reauthorization bill, the Senate remains deadlocked. According to sources on the Hill, Senator Robert Menendez (D-NJ), responding to special interest influences, is delaying E-Verify legislation because he believes it gives businesses a safe harbor. Thus, he is blocking reauthorization until the Senate adds language that would "recapture" unused permanent visas, thereby flooding the workplace with new foreign workers. The U.S. State Department estimates that over 326,000 employment visas and more than 231,000 family visas would be available. (U.S. State Department, Unused Family and Employment Preferences Numbers Available for Recapture, Fiscal Years 1992-2007)

Responding to the deadlock in the Senate and Senator Menendez's hold on the bill, early last week a group of twelve Senators, led by Senator Chuck Grassley (R-IA), sent a letter to Senate Majority Leader Harry Reid (D-NV) asking him to "support a straight reauthorization of E-Verify." The Senators concluded: "We hope the Majority understands the importance of immigration enforcement, and will work with us on reauthorizing E-Verify before we adjourn for the year." (Grassley Press Release, July 29, 2008) In a press release about the letter, Senator Grassley echoed this sentiment: "Congress is running out of time to reauthorize and even enhance E-verify. If this program expires, it gives employers even greater opportunity to hire illegal aliens. It's time for the Majority Leader to act and ensure this tool is available for employers who want to do their part to comply with the law." (Id.)

A legislative analysis of H.R.6633 is available on the FAIR website.

Back to top

House Subcommittee Passes Three Immigration Bills

On Thursday, before the House adjourned for the August recess, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, passed three immigration related bills: H.R.5882, H.R.5924, and H.R.6020. If the House follows normal procedure, the bills passed by the subcommittee will be referred to the House Judiciary Committee for consideration and amendments before being sent to the House floor for a vote.

The first bill, H.R.5882, would reach back to 1992 and "recapture" visas the State department did not issue. For example, the statutory maximum for employment based visas is 140,000 per year. Under the bill, any amount of visas issued below this number in a given year would be available for issuance. (Gallery Watch, August 1, 2008) Subcommittee Chair, Rep. Zoe Lofgren (D-CA) claimed these visas were lost due to "bureaucratic waste." The waste, she maintains, creates a backlog in visa requests by failing to issue the maximum number of visas each year. (C.Q. Today, August 1, 2008) Ranking member Steve King (R-IA), called the bill "fatally flawed" and noted that, for the two categories included in the bill, employment based and family sponsored immigration visas, the recaptured visas would amount to approximately 557,000. King argued that the bill would change what is a ceiling in the number of visas issued in a year into an entitlement program. He told the committee, "There are visa categories. When that limit is not reached in a year, that's the end of it - the language is clear." (Id.)

The subcommittee also passed H.R.5924. This bill would lift the cap on employment based visas for nurses and physical therapist until 2011. Ranking member Steve King also opposed this bill, telling the committee there is a worldwide shortage of nurses, and this legislation would deny nurses to "countries in dire need of them." (Id.)

Also approved by the subcommittee was H.R.6020, introduced by Rep. Lofgren. This bill would permit foreign nationals who have served honorably in the United States military to become citizens. It would also exempt them from having to return to the United States for any immigration-related legal proceedings, and allow family members of that immigrant service member to enter the country legally. The most controversial provision of the bill would waive numerous grounds for removal of immigrants serving in the military and their families. The provision was criticized by Ranking Member Steve King. He explained that the bill overlooked the perpetration of "the most serious of crimes," including murder and rape, if an immigrant, whether legal or illegal, serves in the armed forces. (Id.)

Back to top

House Passes Bipartisan Bill Targeting Illegal Maritime Border Crossings

Last week, the House of Representatives passed legislation aimed at enhancing maritime border security. H.R.2490 would create a pilot program allowing the U.S. Coast Guard (USCG) to collect biometric information (fingerprints and digital photographs) from aliens attempting to enter the country through maritime borders. USCG would then be authorized to take this biometrical information and screen it against existing databases containing individuals who have violated immigration and/or other federal laws. Additionally, the bill would require DHS to analyze the success of the pilot in order to determine the practicality and suitability of expanding the program throughout the entire DHS maritime border system. (H.R.2490)

Representative Gus Bilirakis (R-FL) sponsored H.R.2490 and has expressed the intent of the bill as it relates to illegal immigration. Rep. Bilirakis voiced concerns relating to illegal immigrants who "continue to bounce off our existing maritime border security efforts until they successfully gain entry into the United States." According to Bilirakis, H.R.2490 would address this problem by allowing for "instant processing of illegal aliens in our maritime domain through biometric identifiers." (Committee Backs Bilirakis Bill, June 26, 2008)

H.R.2490 was debated and voted on as a suspension bill. Suspension bills are typically considered non-controversial by both parties, and H.R.2490 received overwhelming, bipartisan support, passing the House by a vote of 396 to 3. (Roll Call 534, July 29, 2008)

Back to top

Concerns Raised About 2010 Apportionment and Illegal Aliens

As the 2010 census nears, the debate concerning whether illegal aliens should be counted towards congressional reapportionment has intensified. A study conducted by the Connecticut State Data Center (CSDC) examined this issue and made two findings based on the settlement patterns of undocumented residents. The study first found that Southern border states with high levels of illegal inhabitants such as Arizona, Texas, and Florida would stand to gain Congressional representation "at the expense of Northern and Midwestern states" including Missouri, Illinois, Michigan, New York, and Ohio if illegal immigrants are counted. (Impact of Undocumented Populations on Congressional Reapportionment, September 19, 2007) The study further found that undocumented residents could potentially weaken the voting power of all citizens nationwide. CSDC says this would occur because "each Congressional seat would represent fewer voters when undocumented populations (non-voters) are included in reapportionment calculations." (Id.)

Concerns with how illegal immigrants will affect Congressional reapportionment following the 2010 census have sparked members of Congress to take action. Representative Michael Turner (R-OH) - who serves as the Ranking Member of the House Oversight and Government Reform Subcommittee on the Census - voiced his concerns to Politico. "Illegal immigrant-rich areas are gaining representation while citizen-rich areas are losing representation, and that's not right," said Turner. (Politico, July 23, 2008) Additionally, Representative Candice Miller (R-MI), along with 30 cosponsors, has sponsored a bill proposing a Constitutional amendment that would require Congressional apportionment to be determined by counting citizens only. Miller's legislation was introduced on the floor of the House of Representatives on January 4, 2007 and was referred to the House Judiciary Subcommittee on the Constitution on February 2 of the same year. (H.J.RES.6)