FAIR Legislative Update August 7, 2012
The Department of Homeland Security (DHS) issued Friday afternoon additional guidance for its deferred action and work authorization application process for illegal aliens seeking reprieve under the Obama Administration’s June 15 amnesty memorandum. (FAIR Legislative Update, June 19, 2012)
However, the information released by the Administration, the stated intent of which was to provide additional information regarding the affirmative deferred action application process it created, provided little insight. (See DHS Press Release, Aug. 3, 2012) For example, while the guidance confirms previous reports stating that U.S. Citizenship and Immigration Services (USCIS) — the agency tasked with administrating the application process — will charge illegal aliens a $465 application fee, it neglects to provide a breakdown of the application charges. (See USCIS Website, Aug. 3, 2012) In fact, leading one to question the accuracy of the estimate, the guidance states that USCIS is still developing the application forms and has not yet submitted them to the Office of Management and Budget for review. (Id.)
Rather, instead of providing key details of the application process, the guidance reveals the Administration’s intent to ignore the broad criteria it sets forth, referring to such as mere “factors” for consideration. For instance, the guidance attempts to clarify which crimes that, if convicted of, (such as those the Administration defines as “significant misdemeanors”) will disqualify an alien from receiving deferred action. (Id.) However, after defining such, the guidance immediately goes on to provide that the Administration may grant deferred action to illegal aliens in spite of them possessing such convictions. The guidance states: “[T]he absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.” (Id.)
Conspicuously absent from the Administration’s guidance is any direction as to specific forms of documentation an illegal alien must show to receive deferred action and work authorization. The guidance merely reiterates the June 15 memorandum’s overly broad and vague guidance as to which types of records — such as medical, financial, or educational forms — may be accepted to demonstrate the illegal alien meets the amnesty criteria. (Id.) As such, the guidance is silent as to which kinds of medical, financial, or educational forms (i.e. medical bills vs. charts, bank statements, school transcript or attendance records) must be submitted, or whether such must be independently certified or authenticated to protect against fraudulent claims.
Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee, commented on the application process’ susceptibility for fraud. “The lack of specific standards for employees processing the applications is an open invitation to fraud, especially because the Administration is allowing illegal immigrants to submit third party affidavits as proof of at least one of the DREAM Act requirements,” Rep. Smith charged in a press release. (Rep. Smith Press Release, Aug. 3, 2012)
USCIS begins accepting applications August 15. Stay tuned to FAIR as details emerge…
On Wednesday, the House of Representatives passed legislation to amend requirements for schools that enroll foreign students.
The Student Visa Reform Act, H.R. 3120, introduced by Rep. Zoe Lofgren (D-CA), would amend federal immigration law governing the distribution of student visas (F-1s) to require that colleges, universities, or language training programs be accredited by an agency approved by the Secretary of Education in order to accept foreign students. (See H.R. 3120 at § 2; see also INA § 101(a)(15(F)(i)) Other types of learning institutions admitting twenty-five or more foreign students can also be required, at the discretion of DHS, to provide proof of accreditation. (See H.R. 3120 at § 3)
The legislation also provides measures to combat fraudulent “sham schools” by prohibiting any institution enrolling foreign students from hiring a person convicted of an offense (such as human trafficking and visa fraud) to serve as the school’s principal, owner, officer, board member, general partner, or other similar position. (See H.R. 3120 at § 3; see also FAIR Legislative Update, July 30, 2012) Such persons would also be prohibited from maintaining foreign students’ records for the Student and Exchange Visitor Information System (SEVIS). (See H.R. 3120 at § 3) The bill also grants colleges and universities a three-year grace period in which to comply with the bill’s accreditation requirements. (See H.R. 3120 at § 5)
It passed via voice vote and now moves on to the Senate for further consideration.
Before breaking for its annual August recess, the Senate quietly passed via unanimous consent legislation that would reauthorize four expiring immigration programs: E-Verify, the EB-5 immigrant visa, the Religious Worker immigrant visa, and the “Conrad 30” J-1 program. (See S. 3245 as amended) As introduced by Senate Judiciary Chair and Ranking Member Pat Leahy and Charles Grassley, S. 3245 would have permanently reauthorized all four programs.
As amended, however, the programs (which were set to expire at the end of this fiscal year) were extended for an additional three years. While true immigration reformers tend to be familiar with the electronic work authorization verification program known as E-Verify, few are familiar with the other programs reauthorized in the legislation.
The EB-5 immigrant visa program grants nearly 10,000 green cards each year to aliens who invest $500,000 to $1 million in a “new commercial enterprise” that will benefit the U.S. economy and create at least 10 jobs. (INA § 203(b)(5)) While supporters of the program claim this program benefits the U.S. economy, critics have pointed out that the program has in fact only limited effectiveness. For example, in 2005, the GAO found that after 12 years the EB-5 program had only led to $1 billion in investments (instead of the predicted $48 billion) and there was no reliable accounting of jobs created. (See Selling America Short: The Failure of the EB-5 Visa Program, p.1) Moreover, the program measures job creation by counting jobs created both “directly” and ”indirectly,” making it impossible to accurately calculate whether an investment under the EB-5 program actually creates jobs. (See 8 C.F.R. § 204.6(e))
The Religious Worker immigrant visa program allows aliens who meet certain conditions to obtain green cards to work either as a minister or as a non-minister in a religious organization. (INA § 101(a)(27)(C)) Approximately 10,000 employment-based visas are set aside each year for this program, of which 5,000 are set aside for non-minister immigrants. (INA § 203(b)(4)) The Religious Worker immigrant visa program, however, has been criticized for not requiring organizations to establish need for such immigrant workers and rampant fraud in applications. In 2005, the USCIS Office of Fraud Detection and National Security found the program had a stunning 33 percent fraud rate. (OIG-09-79, July 2009, p.1) Yet some religious institutions insist that the program alleviates an “acute shortage of non‐minister religious workers in the United States.” (United States Conference of Catholic Bishops website) While subsequent regulations have helped reduce the fraud, serious doubts remain as to whether the program truly meets a need among religious organizations.
The “Conrad 30” J-1 program allows aliens who are trained as doctors at U.S. universities to stay in the U.S. after their medical training under certain circumstances. (INA § 214(l); USCIS website) Generally, the J-1 program — which allows aliens to train as doctors in the U.S. — requires such doctors return home for at least two years before returning to the U.S. as a nonimmigrant or immigrant. (INA §212(e)) The Conrad 30 J-1 program, however, waives the home residency requirement for doctors who work in certain rural areas. The “30” designation refers to the number of J-1 doctors each state may sponsor for a waiver of the home residency requirement. As a result, not only does the Conrad 30 program displace U.S. doctors, but it also deprives developing countries of much-needed medical care providers (referred to as “brain drain”) by waiving the requirement aliens return to their home country. (New York Times, Mar. 7, 2012)
The bill now goes to the House for its consideration after it returns from recess, September 10.
Oregon officials are considering a new form of identification (ID) for illegal aliens to serve as an alternative to a state-issued driver’s license. The ID, which would grant driving privileges, would not require proof of legal presence in the United States. (Statesman Journal, Aug. 1, 2012)
Oregon Governor John Kitzhaber is leading the debate in the State on issuing driving privileges to illegal aliens. On May 1, Gov. Kitzhaber released a letter disclosing plans to convene a “diverse workgroup.” This group, he hoped, would “come together around changes to our driver’s license laws” that would allow “[illegal aliens] to come out of the shadows.” (See Gov. Kitzhaber Letter, May 1, 2012) Since then, the workgroup has held its meetings behind closed doors and will not disclose its list of members. (Statesman Journal, Aug. 1, 2012)
Gov. Kitzhaber’s desire to grant illegal aliens a form of driver’s license poses great risks. More than just an official form of identification, driver’s licenses provide a gateway to public benefits for illegal aliens. (FAIR Legislative Update, May 7, 2012; see also FAIR Matricula Consular ID Summary, 2003) In fact, the ease under which certain states grant driver’s licenses to illegal aliens was instrumental in the 9/11 terrorist attacks. The multiple licenses the hijackers obtained from states with lax driver’s license requirements permitted the terrorists to secure accommodations, flight training, and travel tickets. (FAIR Legislative Update, May 7, 2012; see also FAIR Matricula Consular ID Summary, 2003)
Despite this demonstrated threat, the push by Gov. Kitzhaber and other Oregon officials for licenses for illegal aliens is not slowing. In fact, the working group’s recent discussions comes a mere three months after Gov. Kitzhaber announced that the State of Oregon would be accepting Matricula Consular ID cards issued by the Mexican government as a valid form of identity. (FAIR Legislative Update, May 7, 2012; see also Associated Press, May 2, 2012)