FAIR Legislative Update February 6, 2012

Senate Democrats Vote to Increase U Visas

Last Thursday, the Senate Judiciary Committee in a 10-8 party-line voted to expand the U visa program as part of legislation to reauthorize the Violence Against Women Act (VAWA), S. 1925.  Specifically, S. 1925 would significantly increase the annual number of U visas by permitting the “recapture” of thousands unused visas from prior years.  (CQ Today, Feb. 2, 2012) Senate Democrats voted to expand the U visa program as part of the VAWA reauthorization bill sponsored by Judiciary Chairman Sen. Pat Leahy (D-VT) in spite of the program’s lack of safeguards and inherent incentives to exaggerate claims in order to receive a green card for oneself and one’s family. (SF Weekly, Mar. 16, 2011)

Congress created the U nonimmigrant visa in 2000 to allow aliens who have suffered substantial physical or mental abuse as a victim of domestic violence, rape, or certain other crimes to obtain temporary legal status if they help law enforcement prosecute those crimes. (INA § 101(a)(15)(U))  The annual cap for U visas is 10,000 (excluding visas for immediate family members of victims), and U visa holders can remain in the country for four-years at a time, receive work authorization, and are eligible for a green card after three years. (INA § 214(p); USCIS Website on U visas)

During last week’s hearing, Ranking Member of the Committee, Sen. Charles Grassley (R-IA), estimated that the VAWA reauthorization bill would add as many as 34,000 U visas in the next fiscal year. “In this instance,” he said, “[Chairman Leahy] wants to go back to 2006 and claim that since we didn’t use all the visas allowed at that time, we should use them now.  We could be talking about 34,000 or more ‘unused’ visas.” (Sen. Grassley Press Release, Feb. 2, 2012)

Unfortunately, the Committee rejected a substitute bill offered by Senator Grassley (R-IA) to implement safeguards against fraud in the U visa program. Under Grassley’s proposal, to be eligible for a U visa, an alien would have had to: (1) report the criminal activity within 60 days; (2) have information that helps identify the criminal if that identity is unknown; (3) provide documentation from a doctor verifying that the alien actually experienced substantial physical or mental abuse as a result of the crime; and (4) the criminal activity would have to be under active investigation or prosecution. (CQ Today, Feb. 2, 2012)

Sen. Grassley was successful, however, in amending the bill to adopt a much-needed reform by increasing penalties for aliens convicted of drunk driving. Under Sen. Grassley’s amendment, which passed unanimously, a third driving under the influence (DUI) conviction would be considered an aggravated felony, making it a deportable offense under the Immigration and Nationality Act. (Id.)

The next step for S.1925 is the Senate floor for a vote by the full chamber.

Obama Administration to Help Visa Holders Find Jobs

The Department of Homeland Security announced last week it intends to issue regulations in the coming months to amend several visa programs in order to help aliens find jobs in the U.S. or keep the jobs they have.  (DHS Website, Jan. 31, 2012)

One of the major changes the Obama Administration intends to enact is expanding the scope of qualifying students who may stay and work for an extended period in the U.S. after graduation. President Obama plans to implement this policy shift by expanding the Optional Practical Training (OPT) program, which currently allows foreign students (F-1 visa holders) who graduate from U.S. colleges and universities in certain fields to remain in the U.S. to work for up to a year following graduation.  (See 8 CFR 214.2(f)(10)(ii))  Last spring, the Administration extended the program an additional 17 months for students graduating with a STEM degree to allow them to remain in the country to work for a total of 29 months upon graduation. (FAIR Legislative Update, May 23, 2011; ICE Press Release, May 12, 2011) The Administration’s latest announcement proposes to expand eligibility for the 29 month OPT program to foreign students currently completing a non-STEM degree so long as they have previously obtained one. The Administration also stated that it intends to continue reviewing additional fields to add to a list of qualifying STEM programs.

Another major policy shift proposed by the Administration is to grant work authorization to certain spouses of H-1B holders. Incorrectly touted by the business lobby as a “high-skilled” visa program, the H-1B program allows employers to petition for an alien to come to the U.S. to fill a vacancy in a “specialty occupation” that may not even require a four-year degree. Under the Administration’s proposal, certain spouses of H-1B visa holders would be allowed to work, taking scarce American jobs, while the H-1B holding spouse seeks a green card.

Other changes announced by the Administration would:

• Allow spouses of student visa holders to enroll in academic classes;
• Loosen documentation requirements to be eligible for an “outstanding professor and researcher” visa (INA § 203(b)(1)(B));
• Allow E-3 and H-1B1 visa holders to continue working for up to 240-days after their visa has expired; and
• Create an initiative to explore how current immigration law can be exploited to expanded entrepreneurial visa programs.

According to DHS’ website, the initiatives are aimed at making the U.S. “more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation.” (DHS Website, Jan. 31, 2012)

The Administration’s announcement flies in the face of research refuting the need to bring in foreign workers to fill STEM jobs. In November, FAIR’s research department released a report revealing that: 

• There is no evidence that there is, or will exist in the foreseeable future, a shortage of qualified native-born scientists and engineers in the U.S.;
• Wages in STEM occupations have not kept pace with those of other college graduates; and
• Some employers even acknowledge that foreign workers were often prepared to work for less money than U.S. workers and this factored into the employers’ hiring decision.

(See FAIR Report, Jobs Americans Can’t Do? The Myth of a Skilled Worker Shortage, Nov. 2011)

The Administration did not state how soon these changes would be taking effect, merely that they would be sometime in the “future” and were part of the Administration’s dedication to “comprehensive immigration reform.” (DHS Website, Jan. 31, 2012)

House, Senate Judiciary Republicans Seek Action on Cook County

Last week, leaders from both the House and Senate Judiciary Committees took action to spotlight the Cook County, IL ordinance that obstructs the deportation of criminal aliens.  The ordinance, passed by the Cook County Board of Commissioners last fall, instructs county jails to ignore Immigration and Customs Enforcement (ICE) detainers placed on criminal aliens in local custody and bars ICE access to County facilities for investigative interviews or other purposes. (Cook County Code Sec. 46-37; FAIR Legislative Update, Jan. 17, 2011)

In a letter to Attorney General Eric Holder, House Judiciary Chair (R-TX) demanded an explanation as to whether the Justice Department plans to sue Cook County to strike down the legislation.  “The safety of the residents of Cook County is at stake,” reads Rep. Smith’s letter. “Particularly when the Justice Department has proactively filed suits against localities that enact legislation that simply assists in the enforcement of federal laws, it is inexcusable that the Department has not consider[ed] filing suit against localities that blatantly defy our immigration laws,” he concluded.

Senate Judiciary Republicans sent a similar letter last week, addressed to both Attorney General Holder and Homeland Security Secretary Napolitano. Expressing incredulity at the Administration’s inconsistent policies, the Senators’ letter reads, “It is ironic and frustrating that the Administration has filed suit against several states for passing laws that aim to protect their citizens and help enforce immigration law while essentially turning a blind eye to jurisdictions that actively promote safe harbor policies.” (Read the letter here; see also Sen. Grassley Press Release, Jan. 30, 2012)

Both letters sent by the House and Senate cited a Jan. 4, 2012 letter sent from ICE Director, John Morton, to the President of the Cook County Board of Commissioners, Toni Preckwinkle, expressing serious concern over the ordinance. (FAIR Legislative Update, Jan. 17, 2011) The letters also highlight the hypocrisy of Cook County enacting policies to ignore detainers while still requesting millions of dollars in federal funds through the State Criminal Alien Assistance Program (SCAAP) for the reimbursement of holding aliens in local jails.

Cost Study Attempts To Undermine AL Immigration Enforcement Law

Last week, the University of Alabama Economist Samuel Addy released a study on the state’s immigration enforcement law, HB 56, concluding that the law’s costs are greater than its benefits.  (Addy Report, January 2012)  Specifically, Mr. Addy finds that HB 56 will cause illegal aliens to leave Alabama, leading a “reduction in aggregate demand.”  (Addy Report, p.1)   The reduction in demand, Addy says, will cause: (1) a loss of jobs in the state, (2) a reduction in Alabama’s gross domestic product, (3) a reduction in state income and sales taxes, and (4) a reduction in local sales taxes. 

Mr. Addy reaches these conclusions by setting forth what he calls a “cost-benefit analysis” of the law.  Addy sets forth several “potential economic benefits” of HB 56 to the state.  These include: (1) savings of public benefits provided to illegal aliens, (2) improved public safety, (3) more business, employment, and education opportunities for legal residents, and (4) restoring the integrity of state programs and services.  (Addy Report, p.3)  Remarkably, however, Addy dismisses these benefits as minimal and fails to attributes any dollar amount to them.  For example, he merely describes savings from public benefits given to illegal aliens, including public education, as “likely to be small and decline over time.” (Addy Report, p. 4)  FAIR estimates that the annual cost of educating children of illegal aliens alone is $187 million.  (FAIR National Cost Study, p. 48 (2010))

Unlike his analysis of the law’s benefits, Mr. Addy is more explicit about what he perceives to be the costs of HB 56.  According to Addy, these include: (1) the costs of implementation, enforcement, and litigation, (2) Increased costs for citizens, legal residents and businesses, (3) Damage to the state’s reputation reducing economic development opportunities, and (4) Economic impact of reduced aggregate demand.  (Addy Report, p. 5) Addy spends the bulk of his cost analysis focusing on what he believes will be reduced economic demand resulting from illegal aliens leaving the state.   This reduced demand, Addy concludes, will cause the state to lose anywhere from $2.3 to $10.8 billion in economic activity—an “estimate” in which the highest figure is nearly five times the lowest figure.  (Addy Report, p. 9)

In addition providing a lopsided cost-benefit analysis, Professor Addy’s principle argument is that a reduced population necessarily means reduced economic activity and therefore loss. This ignores the fact that a small state may have a healthier economy and tax revenue per capita than a much larger state.  (Gross State Product) GSP only measures the sum total of economic activity in Alabama.  It is not an indicator of economic prosperity or income levels, or a measure of the standard of living in the state.  Quality of jobs is more important than quantity in determining the economic health. If that were not true, a state would be as willing to host sweatshops as high tech manufacturing plants, which Professor Addy is implying Alabama should do.

Moreover, Professor Addy assumes that employers will not make the adjustments necessary to convert to a legal workforce by offering better wages, conditions, and benefits.  Many of the jobs done by illegal aliens only exist because employers have had access to low-wage, illegal labor.  Jobs necessary to the economy will remain, will offer better pay to legal workers, and will boost tax payments as well as reducing costs of providing for unemployed and /or impoverished legal residents of the state.

Ironically, the most reasonable conclusion from Professor Addy’s study is that HB 56 works.  His analysis of the impact of HB 56 is predicated entirely on the fact that illegal aliens will leave Alabama.  Thus, Professor Addy has acknowledges that increased enforcement will deter illegal immigration. 

Arguments in Arizona SB 1070 to Take Place in April

Friday, the U.S. Supreme Court announced it would hear oral arguments on April 25 in the Justice Department’s suit against Arizona over its immigration enforcement law, SB 1070. (Reuters, Feb. 3, 2012; see FAIR Legislative Update, Dec. 12, 2011) The Supreme Court announced in December that it would review the case, but had not yet announced when oral arguments would take place. (See U.S. Supreme Court Order, Dec. 12, 2011) The Court is expected to hand down its opinion in late June.