Legislative Update: 10/21/2014

During a fundraiser last week in Hollywood, President Obama indicated that he plans to use his “pen” to unilaterally change the high-skilled worker visa program. “I will use all the executive authority that I legally have in order to make fixes to some of the system,” the President said, including “making the H1B system that is often used by tech companies and some of the other elements of our legal immigration system more efficient so we can encourage more folks to stay here.” (Remarks by the President, Oct. 9, 2014 at 6-7)

However, it is unclear that President Obama has any legal authority at all to make the H-1B program, which is typically used to admit foreign workers in the science, technology, engineering, and math (STEM) fields, “more efficient” because the provisions are clearly defined by federal statute. Section 214 of the Immigration and Nationality Act dictates that the ceiling for H-1B nonimmigrant visas issued each year is 65,000. (INA § 214(g)(1)(A)) Additionally, there is a separate allotment of 20,000 H-1Bs for foreign high-skilled workers with at least a Master’s degree. (INA § 214(g)(5)(C)) Indeed, the only component of the H-1B program that does not have a statutorily defined admission level is the exemption from the ceiling for foreign high-skilled workers who are employed at a university or nonprofit. (See INA § 214(g)(5)(A)-(B)) Therefore, any changes to the number of H-1Bs admitted each year must be enacted legislatively by Congress.

Furthermore, the President’s desire to “encourage more folks to stay here” reflects the bogus claim by the tech industry that H-1Bs are the “best and brightest.” By definition, an H-1B worker is an alien admitted temporarily to the U.S. to perform services in a “specialty occupation.” (INA § 101(a)(15)(H)(i)(b)) However, the official U.S. Citizenship and Immigration Services (USCIS) statistics from fiscal year 2012 (the most recent data available despite statutorily mandated annual reporting) reveal that the program is not limited to high-skilled tech workers. In fact, 46% of H-1B workers (a plurality) have only a bachelor’s degree. (USCIS, Characteristics of H-1B Workers FY2012, June 26, 2013 at 10) While 61 percent of H-1Bs are for computer-related occupations, tens of thousands of H-1Bs are issued for workers in “Administrative Specializations,” education, life sciences, social sciences, and art occupations. (Id. at ii, 12)

Although it is unclear what action President Obama will take, it is certain that the foreign workers and corporations will benefit at the expense of the American STEM worker. In a recent op-ed entitled, “Bill Gates’ tech worker fantasy,” leading STEM scholars Norm Matloff, Ron Hira, Hal Salzman, Michael Teitelbaum, and Paula Stephan expose the myth of a STEM worker shortage. (USA Today, July 27, 2014) Noting that only one-in-four STEM degree holders work in the field, they wrote “If a shortage did exist, wages would be rising as companies tried to attract scarce workers. Instead, … average wages [remained] flat over the past 16 years.” (Id.) “Unfortunately, companies are exploiting the large existing flow of guest workers to deny American workers access to STEM careers and the middle-class security that should come with them,” they continued. (Id.) “The tech industry’s promotion of expanded temporary visas (such as the H-1B) and green cards is driven by its desire for cheap, young and immobile labor.” (Id.)

The President’s announcement drew the rebuke from influential Senate Republicans. Senator Chuck Grassley (R-IA), who would become chairman of the Judiciary Committee if the GOP gains control of the Senate, blasted Obama for exploiting U.S. workers. “Many high tech companies have long argued that they need more skilled workers from abroad, when in reality many of these companies have laid off mass numbers of individuals,” Grassley wrote. (ComputerWorld, Oct. 13, 2014) Similarly, true immigration reformer Sen. Jeff Sessions (R-AL) took to the Senate floor last month to blast Obama for colluding with the corporate immigration lobby. “There is no shortage of workers,” Sessions declared, citing the USA Today op-ed. (Sessions Floor Address, Sept. 12, 2014) “But FWD.us and other immigration lobbyists are working with the White House to extract executive orders from the President that provide them with the same financial benefits that were included in the Senate bill that was rejected by the House of Representatives,” Sessions charged. (Id.)

Obama Administration to Let Haitians Cut in Line

Marking the President’s latest executive action on immigration, U.S. Citizenship and Immigration Services (USCIS) announced Friday that it would soon launch a program to admit over 100,000 Haitian nationals into the United States on an expedited basis. (USCIS press release, Oct. 17, 2014; The New York Times, Oct. 17, 2014) The Obama Administration calls the new initiative the “Haitian Family Reunification Parole” (HFRP) Program. 

The scope of the HFRP Program is still unclear, but according to USCIS, beginning in 2015 the agency will allow certain Haitians who have applied for a family-based green card to enter the U.S. before actually receiving it. (USCIS press release, Oct. 17, 2014) USCIS will do this by granting these Haitians “humanitarian parole.” Right now, USCIS says that it will grant parole to Haitians whose applications for family-based green card have actually been approved, but who are waiting in line for the green card to become available. USCIS suggests that it will only grant parole to Haitians if their wait time is two years or less. However, this could change when USCIS actually launches the program next year.

But regardless of the point at which Haitians receive parole under the HFRP Program, the result is inherently unfair. It allows one specific group of people cut in line before those in other countries all over the world patiently waiting for their green cards. Haitians who receive parole under this program not only get to enter the U.S. before receiving a green card, they also receive work authorization and are eligible for numerous public benefits, including Obamacare. 

Granting parole to Haitians while they wait for their green cards also violates numerous federal laws. First, paroling Haitians to wait for their green cards completely violates the statute governing parole. Immigration and Nationality Act Section 212(d)(5) provides:

The Attorney General may…in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit…, but such parole shall not be regarded as an admission of the alien and when the purposes of such parole shall… have been served the alien shall forthwith return or be returned to the custody from which he was paroled…” (Section 212(d)(5)(A))(emphasis added))

Accordingly, the plain language of the statute requires that the aliens are granted parole on a temporary and case-by-case basis. Nowhere does U.S. law grant the Executive Branch authority to grant parole for a broad class of aliens and then allow them to stay.

In addition to violating the federal statute governing parole, the HFRP Program eviscerates federal statutes that set a cap on family-based immigration. For example, INA Section 201(c) generally sets that annual ceiling on family-based immigration at 480,000 and the floor at 226,000. INA Section 203(a) allocates the overall number of family-based green cards between the different family categories.

These caps, combined with the high demand to immigrate to the U.S., create waiting lines. Depending on the type of relative seeking a green card (sister, brother, adult child, etc.) and whether the sponsor is a U.S. citizen or legal permanent resident (green card holder), the wait can be as little two years, or over ten. (See, e.g., State Department Visa Bulletin, June 2014)

However, Congress anticipated these waiting lines and passed laws that provide for how green cards shall be distributed to those waiting in line. INA Section 203(e) states that family-based immigrant visas “shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…” (INA Section 203(e)(1)) “Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations…” (INA Section 203(e)(3)) 

For all of these reasons, it was not surprising that the Obama Administration was determined Friday to justify the creation of the HFRP program. Homeland Security Deputy Secretary Alejandro Mayorkas claimed the creation of the HFRP program would benefit the United States — ostensibly in an effort to justify the use of parole. Mayorkas said, “The Haitian Family Reunification Parole program promotes a fundamental underlying goal of our immigration system – family reunification. It also supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States.” (USCIS press release, Oct. 17, 2014)

USCIS’s announcement of the HFRP Program comes approximately three weeks before the November election. Not surprisingly, several Democrats representing districts in Florida, the U.S. state with the largest population of individuals with Haitian ancestry pushed for DHS to create HFRP. (See American Community Survey Brief: Haitian Ancestry in the United States, Oct. 2010); see Hastings press release, May 30, 2014) One of those lawmakers, Rep. Frederica Wilson, lauded the newly announced HFRP program as “a great win for my Congressional District which is home to the largest Haitian community in the U.S.” (Wilson press release, Oct. 17, 2014) Another Florida Democrat, Joe Garcia, said that HFRP “is one of the programs where it makes absolutely no sense not to move forward.” (McClatchy News, Sept. 16, 2014)

Other lawmakers, however, blasted the new Haitian immigration program. Senator Chuck Grassley(R-IA), Ranking Member of the Senate Judiciary Committee, said, “This mass importation of more than 109,000 individuals is an irresponsible overreach of the executive branch’s authority and is likely just the beginning of the President’s unilateral and executive actions on immigration.” (Breitbart News, Oct. 20, 2014) In addition, Sen. Jeff Sessions (R-AL) criticized the Obama Administration for “expediting immigration from Haiti at a time when we can’t keep track of the millions we are already admitting.” (Breitbart News, Oct. 17, 2014)

FAIR also blasted the creation of the HFRP Program. “No legal authority exists for the president to parole broad categories of foreign nationals into the United States,” asserted Dan Stein, president of FAIR. “Parole is intended to be a very limited authority the executive branch may use on a temporary, case-by-case basis to address unique circumstances in which a compelling humanitarian concern is at stake. Allowing any Haitian with a family member in the U.S. to jump the line does not qualify as unique, compelling, or an example of ‘case-by-case’ evaluation.” (FAIR Press Release, Oct. 17, 2014)

Stein also pointed out that DHS’s justification for implementing the HFRP Program is utterly illogical. “When did removing a country’s people become a prescription for reconstruction and development?” asked Stein. “If the goal of the United States is to facilitate Haitian development, our policies ought to encourage and assist Haitians to remain in Haiti. No nation has ever grown strong and prosperous by having its people emigrate en masse.” (Id.)

Hispanic Group tells Obama to Open Obamacare to Administrative Amnesty Beneficiariesa

Earlier this month, the National Hispanic Leadership Agenda (NHLA), an association of 39 Hispanic organizations and prominent Hispanic leaders, sent a letter pressuring President Obama to make illegal aliens who receive administrative amnesty eligible for Obamacare, Medicaid and the State Children’s Health Insurance Program (SCHIP). The letter urges the President to extend this eligibility both to beneficiaries of DACA (Deferred Action for Childhood Arrivals), as well as to any future beneficiaries of his larger planned administrative amnesty. (NHLA Letter, Oct. 8, 2014; Washington Times, Oct. 12, 2014)

The NHLA letter takes aim at eligibility decisions the Obama Administration made soon after the passage of the Affordable Care Act (Obamacare) in 2010. In the text of the Act, Congress specifically limited eligibility to aliens who are “lawfully present” in the U.S., but did not expand on its meaning. (New York Times, Jul. 26, 2012; Healthcare.gov) In its original set of regulations to implement the law, the government interpreted lawfully present aliens to including guest workers, tourists, foreign students, and aliens who entered the U.S. on parole or who had received deferred action. (FAIR Legislative Update, Sept. 24, 2012)

However, in 2012, after the creation of DACA, which dramatically expanded the numbers of individuals receiving deferred action, the Obama Administration decided to exclude DACA beneficiaries from participating in Obamacare, Medicaid and SCHIP. (Id.) It did so by issuing regulations which state that DACA beneficiaries are not “lawfully present” for the purpose of determining eligibility for these programs. (Id.; see HHS Letter, Aug. 28, 2012; HHS Letter, July 1, 2010; Federal Register, Vol. 77, No. 169, Aug. 30, 2012) Those who received deferred action status other than through DACA (as well as through other previous avenues of administrative amnesty) would continue to be considered lawfully present for all purposes, meaning they remained eligible for Obamacare, Medicaid and SCHIP. (Healthcare.gov)

In its letter, NHLA urges reversal of the existing regulation barring DACA beneficiaries from Obamacare in light of the “chronic and severe lack of access to health care by the immigrant community.” (NHLA Letter, Oct. 8, 2014) The letter criticizes the Administration for “bypassing the regular public comment process” in issuing the 2012 regulations and claims they encourage the states to “discriminate” against the illegal aliens who receive DACA. (NHLA Letter, Oct. 8, 2014) The NHLA wants the Administration to consider DACA beneficiaries, and any beneficiaries of upcoming administrative amnesties, “lawfully present for all purposes” as well.

If President Obama should follow the NHLA’s advice, his administrative amnesty will become even more costly to the public. The Administration has already granted administrative amnesty through DACA to over 600,000 illegal aliens, and its upcoming administrative amnesty could extend amnesty through deferred action to an unknown number of millions more. (USCIS.gov) Groups like the Migration Policy Institute have given estimates in ranging from 3.1 million to 8.5 million. (FAIR Legislative Update, Sept. 9, 2014; MPI Report, Sept. 2014) The letter’s claim that the illegal aliens so desperately need taxpayer subsidies for health care, even after benefiting from amnesty, also undermine amnesty advocates’ own frequent talking points that such amnesty is a boon to the American taxpayer.

Guatemalan President: U.S. Should Give $6 Billion to Central America to Curb Illegal Immigration

Last month, Guatemalan President Otto Perez Molina asked the United States to spend $6 billion stimulating job creation and raising the standard of living in Guatemala, Honduras, and El Salvador. (Reuters, Oct. 14, 2014) Molina said that it would be “much more profitable” for the United States to use $2 billion a year on Central American development than on U.S. immigration enforcement. (Washington Post, July 25, 2014) He said, “with just 10 percent of that money that you’re investing on the U.S. border, it could be spent at minimum in the three countries.”

Molina, along with Honduran and El Salvadoran leaders, has sketched out a $10 billion Central American development proposal. (Reuters, Oct. 14, 2014) Although the Central American leaders are seeking funds from the Inter-American Development Bank, World Bank, and the private sector, they are asking the United States to foot most of the bill. (Id.) In particular, Molina hopes that the United States will pay sixty percent of the costs. (Id.)

Some Central American leaders blame the United States for much of the border crisis, but so far appear to ignore the role of U.S. immigration policy in enticing minors and families to the United States. In particular, Guatemalan President Molina said that the demands in the U.S. for narcotics fuels drug gangs in Central America, and Central American minors then flee these violent gangs into the United States. (Id.) Similarly, Honduran President Juan Orlando Hernandez said that the border crisis was stimulated by “violence caused by drug trafficking through our territory, poverty and lack of opportunities.” (Associated Press, Sept. 24, 2014) Both Hernandez and Molina are claiming, like the Obama Administration, that violence is the reason for the border crisis and ignoring the way Obama’s lack of enforcement of immigration laws induced illegal immigration into the United States.

New York Council Moves Forward on Plan to Block Immigration Enforcement

The New York City Council Committee on Immigration passed legislation on Monday that would impede federal enforcement of immigration law by prohibiting law enforcement from honoring federal detainer requests for any alien in city jails. A detainer request is a notification to state or local law enforcement agencies that a federal agency, such as U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and Border Protection (“CBP”), seeks custody of a particular alien for the purpose of removal from the United States.

Specifically, New York Introduction (“Intro.”) 486 and Intro. 487 prohibit all city law enforcement officials in the New York Police Department (“NYPD”) and Department of Corrections from honoring federal detainer requests for any alien otherwise eligible for release from custody unless the alien has been convicted of a serious or violent felony within the last five years and ICE presents a judicial warrant. (Intro. 486; Intro. 487) However, ICE is authorized by law to arrest and detain aliens it believes to be removable without a judicial warrant, and the detainer form sent by federal immigration officials includes language within it that constitutes sufficient probable cause to justify a detention. The requirement of a judicial warrant treats the alien as if he or she is criminal defendant even though removal is a civil proceeding. Aliens in removal proceedings are not entitled to the full range of due process protections afforded to criminal defendants because removal is not punishment under law. Intro. 487 allows the NYPD to comply with a detainer request absent a judicial warrant only if the alien has been previously deported. (Intro. 487) Additionally, Intro. 486 prohibits the Department of Corrections from expending time or resources to communicate information to ICE regarding an alien’s incarceration status or release date and prohibits federal immigration authorities from maintaining an office on their property. (Intro. 486)

Through Intros. 486 and 487, the New York City Council is poised to prioritize the interests of criminal aliens over general public safety. As illegal alien advocates recognize, the requirement of a judicial warrant will “in practice … end all deportation holds” because ICE does not obtain judicial warrants to accompany detainers, as removal proceedings are civil immigration matters. (Philly.com, Apr. 27, 2014) Mark-Viverito, City Council Speaker and a sponsor of the legislation, admitted the legislation is designed to specifically obstruct federal enforcement of immigration law. (Huffington Post, Oct. 15, 2014) “New York City has no business expending scarce resources assisting with the enforcement of broken immigration laws,” Mark-Viverito said. “If Congress won’t act, we must.”

A spokesman for ICE defended the agency’s use of detainers, and saying that they are necessary “to ensure that dangerous criminals are not released from prisons or jails and into our communities.” (Wall Street Journal, Oct. 2, 2014) Under guidelines set by the Obama Administration, federal immigration officials may only issue detainers for aliens that the federal government has already determined to be a threat to national security, public safety, or border security. (Morton Memo, Mar. 2, 2011; ICE Detainer Form) Mark-Viverito’s legislation sets the judgment of federal authorities aside and further narrows these constraints.

The full New York City Council must vote on Intro. 486 and Intro. 487 before the legislation can be sent to Mayor Bill de Blasio for approval. Mayor de Blasio supports Intro. 486 and Intro. 487 and has already promised his signature. (Wall Street Journal, Oct. 2, 2014)