FAIR Legislative Update April 29, 2013

Gang of Eight Breaks Promise on Back Taxes

A close analysis of the Gang of Eight’s amnesty bill (S.744) shows that illegal aliens will in fact not be required to pay back taxes in order to receive legal status, which the bill calls “registered provisional immigrant” (RPI) status. 

This conclusion turns on one word used in the text of the bill: “assessed.”  Under S.744, an alien may not even file an application for RPI status “unless the applicant has satisfied any applicable Federal tax liability.”  (Sec. 2101, p.68-69)  “Applicable federal tax liability” is defined as “all Federal income taxes assessed.”  (Id.)

While this sounds good at first blush, one must look closer at the exact words used.  First, “taxes assessed” does not mean “taxes owed.”  A tax is “assessed” when the IRS officially records that a person owes a tax. (See, e.g., Warren, Gorham & Lamont Treatise on Tax Controversies, § 3.01; Warren, Gorham & Lamont Treatise on Tax Procedures, § 10.01) A tax assessment can happen in two ways.  One, an individual files a tax return, tells the IRS what he owes, and, after correcting any mathematical errors, the IRS records it.  (See 26 U.S.C. §6201) Two, the IRS audits an individual — whether or not he has filed a return — and, after giving the taxpayer an opportunity to contest, records how much the person owes.  (See 26 U.S.C. §6212)

This leads to two possible scenarios in which the “back taxes” of an illegal alien will have been “assessed.”  In the first scenario, the illegal alien has filed a tax return and the IRS has “assessed” any unpaid portion of the reported tax.  This will be a rare scenario since an illegal alien is unlikely to file a return reporting taxes that he is unable or unwilling to pay, for fear of causing trouble with the federal government.  In the second scenario, the illegal alien is working off the books, has not filed a return, and has been audited by the IRS.  This will also be a very rare scenario since the IRS has no knowledge of the alien’s existence.  In short, despite the promises of the authors, the Gang of Eight has drafted a tax provision that will almost never require illegal aliens to pay “back taxes” as a condition of receiving amnesty.

Other language in the bill supports this conclusion.  For example, there is no requirement that the alien present himself to the IRS for a tax assessment before or during the application process.  Nor is there any requirement that an alien submit specific information (employment history, wages, etc.) that would indicate that taxes are owed.  And even if S.744 required illegal aliens to submit such information to DHS when they apply for amnesty, there is no requirement that DHS share it with the IRS in order to allow an assessment. 

Not only does the Gang of Eight bill utterly fail to make illegal aliens pay federal back taxes as a condition of getting amnesty, there is no requirement that illegal aliens pay state or local back taxes either.  Finally, the Gang of Eight gives employers their own amnesty by failing to require that they too pay back taxes for any illegal aliens they employed over the years.  In fact, the Gang of Eight amnesty bill provides that any documents provided by an employer to enable an illegal alien to apply for amnesty may not be used against him in a civil or criminal prosecution for hiring that illegal alien. (Sec. 2104, p.120).

Gang of Eight Breaks Promise to Bar Criminals from Receiving Amnesty

A close analysis of the Senate Gang of Eight’s Amnesty bill (S.744) shows that its authors have broken their promise to bar criminals from receiving amnesty, called “registered provisional immigrant” status (RPI status).

At first, S.744 appears to prohibit most criminals from receiving amnesty under the bill.  The bill provides that an illegal alien is ineligible for RPI status if he/she:

• Has a conviction for a felony;
• Has a conviction for an aggravated felony, as defined under 101(a)(43);
• Has a conviction for 3 or more misdemeanors (other than minor traffic offenses) if the alien was convicted on different dates for each of the offenses (Sec. 2102(b)(3)(B)(i));
• Has a conviction for any offense under foreign law that if committed in the U.S. would render the alien inadmissible or removable under the INA
• Has a conviction for unlawful voting under INA 237(a)(6); and
• Is reasonably believed to be engaged in, or likely to engage in, terrorist activity (Sec. 2102(b)(3)(A)(iii)

(Sec. 2101, INA 245B(b)(3), p.61-66)

However, when one looks at the details, one sees that these bars do not apply a wide range of criminal conduct.  First, the language provides that aliens with certain “convictions” are ineligible for RPI status.  This means that anyone charged with the offense and released on bond is still eligible.  It also means that juvenile aliens who committed egregious offenses will not be barred from eligibility, as they are technically “adjudicated delinquent” not “convicted” of a crime.  Finally, barring aliens with convictions for certain crimes ignores the fact that many individuals will “plea down” their offenses in order to turn a felony conviction into a misdemeanor conviction or a misdemeanor conviction into a misdemeanor conviction with a lesser penalty. 

Next, the bill contains a glaring loophole: it allows DHS to waive misdemeanor convictions for the purposes of determining eligibility for amnesty. Indeed S.744 allows DHS to waive multiple misdemeanor convictions.(Sec. 2101, p.65)  And while most people’s knowledge of misdemeanor offenses relates to traffic violations, misdemeanors span a wide range of activity.  In Florida, for example, misdemeanor crimes include:

• Assault, Fla. Stat. § 784.011;
• Assault on law enforcement officers, Fla. Stat. §784.07;
• Battery, Fla. Stat. § 784.03;
• Stalking, Fla. Stat. § 784.048;
• Human smuggling, Fla. Stat. § 787.07;
• Unlawful carrying of a chemical weapon or other deadly weapon (non-firearm), Fla. Stat. § 790.01;
• Unlawful placing or discharging of a bomb that results in any bodily harm, Fla. Stat. 790.1615;
• Unnatural and Lascivious Act, Fla. Stat. §800.02; and
• Exposure of Sexual Organs; Fla. Stat. § 800.03.

Similarly, In Texas, misdemeanor crimes include:

• Public Lewdness, Texas Penal Code § 21.07;
• Indecent Exposure, Texas Penal Code § 21.08;
• Terroristic Threats, Texas Penal Code § 22.07;
• Burglary of Vehicles, Texas Penal Code § 30.04; 
• Deadly Conduct, Texas Penal Code § 22.05;
• Assault, Texas Penal Code § 22.01;
• Soliciting Membership in a Criminal Street Gang, Texas Penal Code, § 71.022;
• Soliciting Prostitution, Texas Penal Code § 43.02;
• Unlawful Carrying of Weapons, Texas Penal Code § 46.02; and  
• Engaging in Organized Criminal Activity, Texas Penal Code § 71.02.

In New York, misdemeanor crimes include:

• Assault, New York Penal Law § 120.00;
• Stalking, New York Penal Law § 120.45;
• Forcible touching, New York Penal Law § 130.52;
• Sexual abuse in the second degree, New York Penal Law § 130.60;
• Unlawful imprisonment in the second degree, New York Penal Law § 135.05;
• Endangering the welfare of a child, New York Penal Law § 260.10;
• Insurance fraud in the fifth degree, New York Penal Law § 176.10; 
• Health care fraud in the fifth degree, New York Penal Law § 177.05;
• Welfare fraud in the fifth degree, New York Penal Law § 158.05; and
• Criminal  possession  of methamphetamine manufacturing material in the second degree, New York Penal Law § 220.70

S.744 also authorizes DHS to waive a broad array of criminal behavior for the purpose of determining admissibility, including convictions for:

• Gang-related crimes (INA 212(a)(2)(F))(added to the INA by §3701)
• Three or more drunk driving offenses (INA 212(a)(2)(J))(added to the INA by § 3702)
• Domestic violence, stalking, child abuse, and violation of protective orders (INA 212(a)(2)(K))(added to the INA by §3711)

Also for the purpose of determining admissibility, S.744 allows DHS to waive the following conduct, which does not require a conviction in order to make an alien inadmissible:

• Committing crimes or of moral turpitude (INA 212(a)(2)(A)(i)(I));
• Violating federal or state drug laws (INA 212(a)(2)(A)(i)(II));
• Trafficking in passports (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Providing fraudulent immigration services (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Trafficking immigration documents, including document fraud (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Prostitution (INA 212(a)(2)(D)(i));
• Gang membership (INA 212(a)(2)(F))(added to the INA by §3701);
• Misrepresenting a material fact to procure visas or other immigration benefits (if done for any purpose other than submitting an amnesty application) (INA 212(a)(6)(C)(i));
• Violating student visas (INA 212(a)(6)(G));
• Falsely claiming citizenship (INA 212(a)(6)(C)(ii)); and
• Illegally re-entering the U.S. after deportation (a felony)(INA 212(a)(9)(C).

hen the Senate Gang of Eight unveiled S.744 at a press conference April 18th, they made repeated promises that illegal aliens applying for amnesty would have to undergo a criminal background check.  While that may be true, a background check is only meaningful if aliens who committed serious crimes are actually barred from receiving amnesty and being placed on that pathway to citizenship.  The specific text of the S.744, combined with its numerous waiver provisions, demonstrate that criminal illegal aliens will indeed be eligible for amnesty under the Gang of Eight plan.

Gang Members Eligible for Gang of Eight Amnesty

At first glance, the Gang of Eight’s amnesty bill appears to crack down on members of criminal street gangs. In fact, the bill adds aliens who are members of “criminal street gangs” to the list of those who are inadmissible and deportable under current law, and even contains a provision that explicitly excludes convicted gang members from gaining amnesty under the bill. (see Sec. 3701, p. 604-608)

However, upon more careful examination of the gang provisions in the bill, it becomes apparent they are nothing more than a mere attempt to appear tough. Rather, the provisions are so narrow that they will fail to keep out the vast majority of illegal aliens belonging to a gang, even allowing the Secretary of Homeland Security to waive the newly-created gang membership grounds for ineligibility.

Specifically, the bill bars gang members from receiving amnesty (“registered provisional immigrant” (RPI) status) under two different sets of circumstances. The first pertains to aliens who are 18 and older who:

• Have been convicted of a gang-related offense under 18 U.S.C. 521(a);
• Have knowledge the gang’s members engaged in a series of offenses under 18 U.S.C. 521(c); and
• Acted with the intention to promote or further the felonious activities of the gang or maintain or increase his or her position in the gang. (p. 607)

Delving deeper, it becomes apparent that the vast majority of illegal alien gang members will not be prohibited from obtaining amnesty under this provision. First, the provision limits gang activity to that which is committed after the alien turned 18, giving illegal aliens a free pass on any gang offenses committed under the age of majority. Next, the provision only excludes alien gang members with convictions, allowing those who have been charged or arrested, but never actually convicted, of gang activity the ability to apply. Third, the definition of offenses under Title 18 only includes felonies, leaving those who have been convicted of any misdemeanor offenses as a gang member (even those who were pled down from a felony) to apply for amnesty. Finally, the provision includes an intent requirement, allowing illegal aliens a loophole to argue they unknowingly or unwillingly participated in the gang activity, and thus should be eligible for amnesty.

As such, the above criteria is so narrow that it will only prevent a fraction of illegal alien gang members from being excluded from receiving RPI status.  Unfortunately, the second set of circumstances laid out under the bill for finding illegal alien gang members ineligible for amnesty is no better. The second category is aimed at those who may not have felony convictions related to their gang membership, but for whom the Secretary of DHS is given special knowledge as to their gang activity. Specifically, the second group of aliens includes those whom:

The DHS Secretary determines by clear and convincing evidence, based on law enforcement information, that since the alien turned 18 years of age he or she has knowingly and willingly participated in a gang with the knowledge that such participation promoted or furthered the gang’s illegal activity. (p. 607-608)

As with the first group, there are several reasons as to why this provision also won’t catch the majority of illegal alien gang members. Again, the provision excludes any gang related-offenses or activity committed by the illegal alien before the age of majority, only taking into consideration gang affiliation after the age of eighteen despite the fact the majority of gang members become involved as minors. Next, the DHS Secretary must determine by “clear and convincing” evidence based on law enforcement information that the alien is a gang member. A step below the highest level of proof in the judicial system, requiring clear and convincing evidence raises the burden law enforcement officers must show DHS to protect the public from illegal alien gang members. Finally, the provision includes yet another intent requirement, again allowing illegal aliens a loophole to argue their way into an amnesty.

Perhaps most troubling is that even if the DHS Secretary were to find an illegal alien to be a member of a criminal street gang, the Gang of Eight grants the Secretary the ability to waive the gang member grounds for ineligibility. The waiver provision provides that so long as the alien renounces their gang association and are otherwise not a security threat, the DHS Secretary can waive that ground of ineligibility. (p. 608) Certainly illegal aliens, including members of the most nefarious drug cartels, will be all too happy to claim they’ve renounced their gang membership in order to gain legal entry to the United States to continue to engage in their criminal behavior.

The gang membership waiver of course is just one of hundreds of waivers granted to the DHS Secretary under the Gang of Eight amnesty bill to ensure no illegal alien is left behind, even those who have come to our country to do us nothing but harm.

Gang of Eight Amnesty Bill Allows Illegal Aliens to File Class Action Lawsuits against the United States

The Senate Gang of Eight amnesty bill (S.744) authorizes illegal aliens to file lawsuits – including class action lawsuits – against the United States in order to force the government to give them amnesty. (Sec. 2104, INA 245E(c), p. 120-129)  The authorization of class action lawsuits is only one of many provisions in the bill that gives illegal aliens the right to legally challenge any denial of amnesty, called “registered provisional immigrant” status (RPI status) or green cards offered under the bill.

First, S.744 allows illegal aliens to administratively challenge any decision that denies or revokes their RPI status.  (Sec. 2104(a), p.120-123)  The bill requires the Department of Homeland Security (DHS) to provide illegal aliens with the ability to administratively appeal the denial or revocation of RPI status, regardless of whether the grounds for denial involved national security, a criminal background, or any other disqualifying information.  The alien must file his appeal within 90 days after the denial or revocation, unless “the delay is reasonably justifiable.”  During review, an administrative court may consider any “new evidence” discovered from the date of application.

Remarkably, the bill even encourages illegal aliens to challenge a denial or revocation, by prohibiting the DHS from removing an illegal alien – for any reason – during administrative review until a “final decision” establishing ineligibility has been made.  (Id. at 122) The bill also protects the illegal alien by providing that his/her presence in the U.S. during the appeals process may not count towards the period of unlawful presence that triggers the 3 and 10-year bars for admission. (Id. at 123)

Not only does the Gang of Eight bill allow illegal aliens to administratively review a denial or revocation of RPI status, it authorizes illegal aliens to avail themselves of the U.S. court system to demand it.  (Sec.2104(b), p.124-127)  If an illegal alien is unable to convince an immigration judge to administratively overturn a denial or revocation of RPI status, S.744 authorizes illegal aliens to appeal the adverse decision in federal court. The only limitation on such appeals is that an illegal alien must first exhaust all administrative remedies before filing in federal court. (Id.)

As with administrative review, the Gang of Eight bill protects illegal aliens through the judicial review process.  S.744 provides that while a federal court reviews an illegal alien’s case:

• The alien’s unlawful presence shall not count towards the 3 and 10-year bars;
• The alien’s presence shall not count towards the time allotted for voluntary departure; and
• The court shall have discretion to stay the execution of any removal order. (Id. at 125)

An illegal alien’s opportunity to challenge an adverse decision does not end there, however. If a federal district court rejects an illegal alien’s appeal and DHS subsequently orders the alien deported, an alien may appeal the district court’s decision, in conjunction review of his removal order, in a federal circuit court of appeals.  (Id. at 125) At any point along the way, a court may remand the case to DHS for consideration of additional evidence if the court finds that:

• The additional evidence is material, and
• There were reasonable grounds for failure to adduce the additional evidence before the Secretary. (Id. at 126)

Not only may illegal aliens sue the government in order to reverse a specific decision in their own cases, S.744 authorizes illegal aliens to sue the U.S. government in federal court, either individually or in a class action lawsuit to challenge any provision of S.744, the relevant regulations, any DHS policy issued pursuant thereto, or any pattern or practice of DHS that emerges in the process.  (Id. at 126-128) In such lawsuits, S.744 authorizes the federal courts to order any appropriate relief without regard to exhaustion of administrative remedies. (Id. at 126) In addition, S.744 authorizes courts to put judicial proceedings on hold to permit DHS to evaluate an allegation of an unwritten policy or practice or to take corrective action. (Id. at 129).

The provisions in S.744 that give illegal aliens endless opportunities to sue the government for amnesty will undoubtedly lead to years of litigation in the taxpayer-funded U.S. court system, clogging up court dockets for years to come. This was also the outcome of the 1986 amnesty, when tens of thousands of illegal aliens sued the government in class action lawsuits, demanding legal status under that law.  Some of these lawsuits lasted decades and forced the government to give illegal aliens amnesty more than twenty years after passage of the legislation.  (See, e.g., Los Angeles Times, Dec. 15, 2008)  

Gang of Eight Breaks Promise Regarding English

A close analysis of the Gang of Eight’s amnesty bill (S.744) shows that despite promises by Senators in the Gang of Eight, illegal aliens will in fact not be required to learn English at any time during the amnesty process. 

First, illegal aliens are not required to learn English when they apply for amnesty, called “registered provisional immigrant” status (RPI status).  The eligibility requirements are relatively straightforward. To be eligible for RPI status, an alien must demonstrate by a preponderance of the evidence that the alien:

• Is physically present in the U.S. on the date of application;
• Has been physically present in the U.S. on or before 12/31/11, except for “brief, casual, and innocent” absences;  and
• Has maintained continuous physical presence (except absences up to 180 days) in the U.S. from Dec. 31, 2011 until receiving RPI status.  (Sec. 2101, INA245B(b), p.60-68)

Nowhere in S.744 is there a requirement that illegal aliens learn English in order to get amnesty.

Moreover, S.744 does not require that illegal aliens learn English to renew their RPI status (which lasts for six years and is renewable indefinitely).  To renew RPI status, an alien must simply establish that he/she:

• Remains eligible for RPI status;
• Has not had his/her RPI status revoked;
• Meets employment or education requirements, which are waivable;
• Has satisfied any federal tax liability that has been “assessed” (meaning the IRS has officially recorded that the alien owes it taxes);
• Pays a processing fee, which is waivable. (p.83); and
• Pays a $1,000 penalty.

(Sec. 2101, INA 245B(c)(9), p.79-84)



In fact, the only English requirement  the Gang of Eight bill imposes on any illegal alien going through the amnesty process comes when the alien applies for a green card — if he chooses to do so.   However, an alien may satisfy the English requirement necessary for obtaining a green card by establishing merely  that :

• The alien meets the English and civics requirements for naturalization under INA § 312, OR
• The alien Is satisfactorily pursuing a course of study “to achieve an understanding of English and knowledge and understanding” of civics  (p. 103)

Thus, even at the point of getting a green card –10 years into the future – an illegal alien who received amnesty must only show that he is studying English and civics.

Taxpayers to Foot Bill for Illegal Alien Attorneys under G8 Plan

Under the Gang of Eight’s amnesty legislation, taxpayers could be on the hook for illegal aliens’ attorneys’ fees when they fight removal from the United States. (See S. 744 § 3502, p. 567)

Specifically, the legislation strikes a provision under current law stating that aliens’ right to counsel in removal proceedings will not be at the expense of the Government. The legislation then grants the Attorney General unfettered discretion to appoint counsel as he sees fit. In fact, the legislation grants the Attorney General the “sole and unreviewable discretion to appoint or provide counsel” to aliens in removal proceedings, denying any judicial recourse if the Attorney General abuses such power. (Id. at p. 568)(emphasis added)

And, in instances where certain alien minors are placed in removal proceedings, the legislation actually requires the Attorney General to appoint taxpayer-funded counsel.  “[T]he Attorney General shall appoint counsel, at the expense of the Government, if necessary, to represent an alien in a removal proceeding who has been determined by the Secretary to be an unaccompanied alien child….” the bill reads. (Id. at p. 569)(emphasis added)

While the provision limits the requirement to appoint counsel to alien minors who are incompetent or “considered particularly vulnerable when compared to other aliens in removal proceedings,” no doubt all unaccompanied minors will receive free counsel given their minor status makes them inherently vulnerable when compared to the remainder of the illegal alien population. (Id.)

Moreover, the number of unaccompanied illegal alien minors crossing the border has grown since the Obama Administration instituted its DACA backdoor amnesty policy. The total number of illegal alien unaccompanied minors apprehended crossing the border in FY 2011 was 16,607, and before FY 2012 was even over, U.S. Customs and Border Protection already recorded 15,590 unaccompanied minor border crossings. (FAIR Legislative Update, Jul. 9, 2012)

Federal Court Finds Napolitano and Morton DACA Directive Illegal

Despite Congress’ rejection of the DREAM Act, in June 2012, Homeland Security (“DHS”) Secretary Janet Napolitano directed her agency to circumvent Congress and administratively implement the DREAM Act. (Napolitano Directive). On the same day, Immigration and Customs Enforcement (“ICE”) Director John Morton issued a memorandum directing all ICE employees to implement Napolitano’s Deferred Action for Childhood Arrivals (“DACA”) program by refraining from arresting or placing illegal aliens who meet the DACA criteria into removal proceedings. (Morton Directive).

Shortly thereafter, ten ICE Agents filed suit against Napolitano, Morton, and United States Citizenship and Immigration Services (“USCIS”) Director Alejandro Mayorkas (collectively “the Defendants”) claiming Napolitano and Morton’s directives order them to violate federal law. (Amended Complaint). Specifically, the agents assert that federal law requires them to arrest or place in removal proceedings every illegal alien they encounter who is not clearly and beyond a doubt entitled to be admitted to the United States, including DACA eligible persons. (See 8 U.S.C. 1225) This past week, a federal court in Texas agreed.

United States District Judge Reed O’Connor affirmed that Congress has plenary power to set immigration law and by adopting [relevant federal statute] expressed its intent that the government initiate removal proceedings against all illegal aliens, including DACA eligible persons. (Memorandum Opinion & Order). Consequently, Napolitano does not have the discretion to refuse to initiate removal proceedings, nor can she or Morton instruct their agents to do the same. (Id.)

While a victory for true immigration reformers, the court’s ruling is not final. The court has asked for additional briefing by May 6 on a technical jurisdictional issue before relief can be granted in the Plaintiffs’ favor.

Napolitano Proclaims S. 744 Secures the Southern Border

Last Tuesday, Department of Homeland Security (DHS) Secretary Janet Napolitano testified before the Senate Judiciary Committee, in what was the third (and final) hearing in as many working days on the Gang of Eight’s 844-page “comprehensive” immigration reform bill. Remarkably, in addition to handling her other responsibilities as DHS Secretary in the mere six days since the bill had been introduced, Napolitano claimed to have “read the bill” prior to the hearing. (CQ Transcript, Apr. 23, 2013)

Secretary Napolitano praised the “Border Security, Economic Opportunity, and Immigration Modernization Act,” declaring that the bill will make the country more secure. Napolitano stated that the legislation “absolutely” improves border security because its provisions are realistic and achievable.  “The [DHS] is ready to implement [the Southern Border Strategy and Southern Border Fence Strategy] within the timeline the draft bill provides,” she said. (Id.) “We can and we will achieve the four provisions of the bill.” (Id.)

According to the bill, amnestied illegal aliens can apply for legal permanent resident status after the Secretary merely “certifies” that several border security conditions have been met. These include certifying that (1) the Southern Border Strategy is “substantially” deployed and “substantially” operational; (2) the Southern Border Fencing Strategy is “substantially” completed; (3) the mandatory employment verification system has been “implemented;” and (4) an electronic entry-exit system has been “established” for air and sea ports (but not land ports of entry). (See FAIR S. 744 Summary)

Despite claiming that the bill makes the border more secure, Napolitano objected to the allocation of funds to install additional fencing along the border. The bill specifically appropriates $3 billion for the Southern Border Strategy and an additional $1.5 billion for the Southern Border Fencing Strategy. (S. 744, sec. 6) However, Napolitano indicated she had no intent to construct more fencing along the border. Rather, she expressed a desire to have “flexibility” with the $1.5 billion earmarked to reinforce the fence along the U.S.-Mexico border. “We would prefer having money not so designated so that we can look at technology, air-based, ground-based, manpower, other needs that may be more fitting to prevent illegal flows across the Southwest border,” she said. (CQ Transcript, Apr. 23, 2013)

Committee Republicans expressed their discontent with the amount of discretion afforded the Secretary to implement many of the bill’s provisions. Ranking Member Chuck Grassley (R-IA) said the bill lacks sufficient Congressional oversight and was reminiscent of the 1,700 delegations of authority in Obamacare. “The bill would put no pressure on this Secretary or any future Secretary to secure the borders,” Grassley said. (Id.) “The bill provides unfettered and unchecked authority to you and your Department and your successor on almost every other page.” (Id.) “The Secretary may define terms as she sees fit,” Grassley exclaimed. (Id.) “This bill gives you, the Secretary, extraordinary discretion in making many decisions about how the [task] would be carried out … that causes me many concerns,” Sen. Jeff Sessions (R-AL) told Napolitano. (Id.) “You’ll have discretion on how much fencing [to build on the U.S.-Mexican border], and the ability to say when it is ‘substantially’ complete,” added Sen. Mike Lee (R-UT). (Id.)

Likewise, Sen. John Cornyn (R-TX), the Ranking Member of the Senate’s Immigration Subcommittee, expressed skepticism that the bill is capable of fully securing the border because the plan does not apply to the entire Southern border (and not at all the Northern border). As defined in the bill, DHS must have a 90 percent effective rate in “high risk border sectors” (sectors where 30,000 or more apprehensions take place per year). (S. 744, sec. 3) Sen. Cornyn pointed out that this definition only encompasses three of the nine border sectors along the U.S.-Mexico border, making those other areas less secure because drug and human traffickers will quickly move their operations.  (CQ Transcript, Apr. 23, 2013) Nevertheless, Napolitano dismissed those concerns, claiming that DHS is flexible enough to timely move resources to other sectors when needed. (Id.) “We regularly review those numbers and make decisions,” she said. (Id.) “We would not wait for an annual review to make adjustments.” (Id.)

Despite numerous public statements that this bill will go through “regular order,” Judiciary Chairman Pat Leahy (D-VT) put S. 744 on the April 25, 2013 markup schedule, just two days after Napolitano testified. Committee Republicans extended the markup by a week, as authorized under Committee rules, and the bill is now set to begin markup on May 9, 2013 (the Senate is in recess this week).

Stay tuned to FAIR as details unfold…

House Bill Grants Amnesty to Illegal Aliens Working in Agriculture

The House of Representatives began its piecemeal deliberations for overhauling the immigration system on Friday when Judiciary Chairman Bob Goodlatte (R-VA) introduced the “Agricultural Guestworker Act” (H.R. 1773). Goodlatte, the bill’s author, described H.R. 1773 as providing “American farmers with a workable temporary agricultural guestworker program that will help provide access to a reliable workforce.” (Goodlatte Press Release, Apr. 26, 2013) Original cosponsors to H.R. 1773 include Reps. Trey Gowdy (R-SC), Blake Farenthold (R-TX), George Holding (R-NC), Ted Poe (R-TX), Lamar Smith (R-TX), and Lynn Westmoreland (R-GA).

The introduction of H.R. 1773 marks the beginning of House action on immigration policy.  Last week, Chairman Goodlatte announced that the House Judiciary Committee would take a “step-by-step approach” to examining immigration rather than following the Senate’s “comprehensive” approach. (The Hill, Apr. 25, 2013) During that press conference, Goodlatte cautioned that “no one should take the limited bills that we’re introducing here this week to be in any way an indication of our overall interest in solving all of the various aspects of immigration reform that are before the House and the Senate.” (Id.) “We’re not viewing anything we introduce as a final product.” (Id.) While Goodlatte did not say how many stand-alone bills the House would introduce, he indicated that the bills would serve as the basis for Committee hearings and would not necessarily be marked-up. (Id.)

H.R. 1773 eliminates the current H-2A agricultural guestworker program and replaces it with a new H-2C program. Specifically, the bill sets the maximum number of H-2C visas issued per year at 500,000 but grants the Secretary of Agriculture discretion to increase or decrease the ceiling based on certain factors. (Sec. 3) By comparison, the Gang of Eight’s bill sets the ceiling for temporary agricultural workers at approximately 112,000 per year. Although the current H-2A program is uncapped, according to a GAO report only 55,000 visas were issued in Fiscal Year 2011. (GAO Report, Sept. 12, 2012) Therefore, H.R. 1773 would bring in nearly ten times the number of agricultural workers that currently come in through the H-2A program.  

Notably, the bill grants amnesty to all illegal aliens present as long as they will work in agriculture. The bill does this in two different ways. First, upon enactment, the bill allows illegal aliens in the U.S. to adjust status to an H-2A nonimmigrant guest worker. (Sec. 9) Then, once the contract-based component of the H-2C program takes effect two years after enactment, it would make those illegal aliens eligible to work in the new program so long as they were in the U.S. as of April 25, 2013. (Sec. 7) However, employers will not be able to begin submitting applications for “at-will” workers under the new program until E-Verify (or similar employment eligibility program) is in place and it is unlawful for employers to hire illegal aliens without its use. (Sec. 9)  

Moreover, the H-2C visa program created under the bill is more expansive than the current H-2A seasonal guestworker program. The H-2A program is currently limited to agricultural labor and services, whereas in addition to those currently admitted under the H-2A program, the new H-2C visa would also be available for work in “non-seasonal” agricultural employment, including dairies and food processors. (Sec. 3)

An H-2C visa for temporary or seasonal workers is valid for 18 months and then the workers must remain outside the U.S. for a “period equal to at least 1/6 the duration of their stay on an H-2C visa” before becoming eligible again for an H-2C visa. On the other hand, the initial term of a non-seasonal H-2C lasts 36 months and any subsequent renewals are valid for 18 months at a time. Non-seasonal H-2C workers must leave after their initial visa expires for a maximum of 3 months outside the U.S. and subsequently follow the requirement for temporary or seasonal workers. Sheepherders are exempt from the requirement to the leave the U.S. (Id.)

Under the terms of the contract-based component of the H-2C program, employers must guarantee to offer H-2C workers 50 percent of the work hours promised, unless the workers abandon employment, are terminated for cause, or a natural disaster makes their services no longer necessary. Employers must pay H-2C workers the greater of the “prevailing wage” or the State minimum wage, and must offer H-2C workers the same benefits afforded to U.S. workers. (Id.)

Aliens overstaying their H-2C visa for more than 14-days, or for more than 30-days (if looking for other H-2C work), are barred from entering the U.S. in the future for 3 and 10-years. (Id.; see also 212(a)(9)(B)(i)) The bill requires the Secretary of Homeland Security to “promptly remove” from the U.S. any H-2C workers who violate the terms of their status. (Sec. 3) Given the current Administration’s prosecutorial discretion policy, it’s uncertain whether this provision would actually be enforced.

In a press release, Goodlatte stated that the H-2C program created by H.R. 1773 is an improvement on the H-2A program because it removes red tape, streamlines access to a “reliable workforce,” and protects farmers from abusive lawsuits. (Goodlatte Press Release, Apr. 26, 2013)

Governor Deal Signs Bill Strengthening Georgia’s Immigration-Enforcement Law

On Wednesday, Governor Nathan Deal signed into law Senate Bill 160, which strengthens and closes several loopholes in Georgia’s 2011 immigration enforcement law (see House Bill 87; FAIR Legislative Update, April 18, 2011).

More specifically, SB 160 expands the definition of a “public benefit” for which illegal aliens are not entitled, to include grants, the homestead exemption, public and assisted housing, retirement benefits, driver’s licenses and tax credits. The bill also redefines the term “secure and verifiable document” for identity purposes, including applying for a driver’s license, to exclude any foreign passport unless the passport is submitted with a valid United States Homeland Security Form I-94, I-94A, or I-94W, or other federal document specifying an alien’s lawful immigration status, or other proof of lawful presence in the United States under federal immigration law.

Through amendments, the General Assembly also clarified its intention in passing the 2011 law that all public employers and contractors at every tier and level use E-Verify on all projects, jobs, and work resulting from any bid or contract and that every public employer and contractor working for a public employer take all possible steps to ensure that a legal and eligible workforce is utilized in accordance with federal immigration and employment.

SB 160 also fixed an unintended consequence of the 2011 law by streamlining the backlogged professional license renewal process wherein persons were required to produce secure and verifiable documents establishing identity every time they renewed their license. Under SB 160, persons seeking renewals are not required to establish their identity a second time.

Sponsor of a similar bill in the House, Representative Dustin Hightower said the bill “goes a long way in protecting the taxpayers of Georgia by filling a lot of loopholes that were there where illegal immigrants were taking advantage of different public benefits.” (The Atlanta Journal-Constitution, March 28, 2013). 

As of 2010, FAIR estimates that roughly 450,000 illegal immigrants live in Georgia and cost the state $2.4 billion annually. (FAIR: The Fiscal burden of Illegal Immigration on United States Taxpayers).

SB 160 passed the House by a vote of 113-54 and the Senate by a vote of 43-9. Before signing the bill, Governor Deal’s spokesman Brian Robinson stated that “Governor Deal is a strong supporter of efforts to prevent illegal immigration and to uphold the rule of law.” (The Atlanta Journal-Constitution, March 28, 2013).