FAIR Legislative Update March 14, 2011
Immigrant Job Numbers Grow as American Employment Declines
On Thursday of last week, the House Judiciary Committee’s Immigration Subcommittee met to hear testimony on the effect of immigration on the American job market. The hearing, entitled “New Jobs in Recession and Recovery: Who Are Getting Them and Who Are Not,” is especially relevant given that many Americans are still struggling to find work in the midst of our nation’s weak economy.
At the hearing, Dr. Rakesh Kochar, Associate Director for Research at the Pew Hispanic Center, testified that in the year following the official end of the recession (June 2009), foreign-born workers gained 656,000 jobs while native-born workers lost an additional 1.2 million jobs. Foreign born workers, he said represent 15.7% of the total American workforce and that the immigrant share of the U.S. working-age population is rising. (See Pew, Hispanic Center, After the Great Recession: Foreign Born Gain Jobs; Native Born Lost Jobs, Oct. 29, 2010) As of last year, he said, at least 8 million unauthorized immigrants participated in the U.S. labor market. (Pew Hispanic Center, “Unauthorized Immigrant Population: National and State Trends, 2010”)
Economist Heidi Shierholz, from the Economic Policy Institute, testified that despite the fact that economists have declared an official end to the recession, there are still 5.4 percent fewer jobs available than when the recession began in 2007. Shierholz argued that the immigration system is completely unresponsive to the economic cycle. “For example, in 2010, the unemployment rate in construction was over 20 percent, but the Department of Labor nevertheless certified thousands of H-2B visas for construction workers. This defies logic,” she said. Part of immigration reform, she concluded, would take into account the actual needs of the economy and its ability to accept additional workers.
Additional testimony came from Steven Camarota, Director of Research for the Center for Immigration Studies, and Greg Serbon, State Director of Indiana Federation for Immigration Reform and Enforcement (IFIRE). Camarota voiced concern that jobs created over the past decade are primarily going to foreign-born workers, while the number of working-age natives with jobs has fallen dramatically. Mr. Serbon spoke out about against the plethora of visa programs which allow non-immigrants to work in America and the prevalence of non-immigrant temporary visa holders overstaying the authorized visa time.
Chairman of the Judiciary Committee, Congressman Lamar Smith (R-TX), stated that there is no more important issue that the subcommittee can address above how to preserve jobs for American workers. And when it comes to finding solutions for the unemployed and underemployed Americans who are still struggling, the Chairman made clear that the “answer is not to keep adding to the supply of low-skilled workers during a severe recession and its aftermath.”
During the Senate Judiciary Committee’s Oversight Hearing of the Department of Homeland Security (DHS) last Wednesday, DHS Secretary Janet Napolitano admitted that the agency granted deferred action to nearly 900 illegal aliens in Fiscal Year 2010. However, according to Secretary Napolitano’s own testimony, the final figure could be substantially higher as this estimate leaves out the number of illegal aliens granted deferred action for “humanitarian” reasons.
Deferred action status is what DHS grants when it decides, in its own discretion, not to remove an illegal alien. Those who receive deferred action usually also receive work authorization. There is no statutory basis for deferred action status, as it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14)). Even more troubling, deferred action is not subject to judicial review. (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 492 (1999)) One academic studying deferred action found that the greatest proportion of aliens granted deferred action status — at 47.2 percent — were those who had overstayed their visas. (Wildes, 41 San Diego L. Rev. at 827-28) The remaining aliens granted deferred action, according to the study, should have been deported or excluded from the U.S. due to reasons of “physical health” (25.4 percent), “entry without inspection” (16 percent), “insanity” (8.7 percent), and being an “immigrant without an immigrant visa” (2.7 percent).
Secretary Napolitano’s admission that DHS is quietly granting deferred action to hundreds, if not thousands of illegal aliens, came in response to questions from Senator Chuck Grassley (R-IA) — the ranking Republican on the Senate Judiciary Committee — regarding a leaked DHS memo dated February 26, 2010. In that memo, senior policy officials in the Department of Homeland Security suggested that Secretary Napolitano grant deferred action status to the nation’s illegal alien population in the face of Congress’ refusal to grant amnesty. (The American Spectator, Sept. 16, 2010; See also FAIR’s Legislative Update, Sept. 20, 2010) Stating that she was “unaware” that anyone in DHS was directed to draft such a memo, Secretary Napolitano remarked, “[I]n the department people come up with ideas. And that’s not a bad thing for people to be thinking … [but the memos] have never been acted upon, were never accepted and are not the policy or practice of the department.” Nonetheless, during the hearing Napolitano reaffirmed the Obama Administration’s commitment to amnesty, asking the Congress “to take up the overall issue of immigration” and stating we “think the law needs to be revised.”
Last week the Utah Legislature passed three immigration bills causing uproar on both sides of the immigration debate. The bills range from a guest worker amnesty bill (H.B. 116), an Arizona-style enforcement bill (H.B. 497), and an agreement between Utah and a Mexican State to provide businesses with migrant workers (H.B. 466). (The Salt Lake Tribune, Mar. 11, 2011)
H.B. 116, would permit illegal aliens (and their immediate relatives) who entered the state of Utah before May 10, 2011 to continue living and working in Utah if the illegal alien:
- obtains a work permit from the Utah Department of Public Safety; (§63G-12-201)
- passes a state and FBI criminal background check; (§63G-12-205)
- has a “driving privilege card” or provides evidence that he or she will not drive; (<em>Id.</em>)
- use “best efforts” to become proficient in English; (§63G-12-209) and
- pays a $2,500 fine (if entered the country illegally) or a $1,000 fine (if entered the country legally but overstays visa or work permit). (§63G-12-207)
The program also would require a waiver from the federal government before implementation. (§63G-12-202)
Republican State Rep. Bill Wright, sponsor of H.B.116 compared H.B.116 to granting a visa in one interview: “Is amnesty giving a visa? I think you would agree it is not. This guest worker permit is only for those that comply with the higher standards in participation … [M]aybe it’s an extended visa … A visa’s not amnesty. So why is a guest worker permit amnesty?” (NPR, Mar. 7, 2011) Rep. Wright also defended his bill on labor grounds, arguing that it is necessary to keep illegal aliens in Utah because they work harder than legal Utahans: “In certain fields, we’re not as productive, that’s why it’s difficult for us to compete with them,” Wright said. “We’re spoiled rotten.” (Fox News Latino, Mar. 8, 2011)
Utah State Rep. Chris Herrod, also a Republican,called Wright’s comments “absolutely offensive to the average American worker.” (Id.) “In Utah, we have 160,000 illegal aliens in the state, and we have roughly that amount of unemployment,” he asserted. (Id.) Herrod also called H.B. 116 “a slap in the face, an atrocious kick in the face, to anyone who has tried, or is trying, to come into this country legally, or is trying to bring family into this country legally.” (Id.) “Any behavior you reward you’re going to get more of,” he said. (Id.) “I’ve been outside U.S. embassies [in other countries], I’ve seen parents in tears when they get denied visas.” (Id.)
If challenged, it is likely that a court would find H.B. 116 to be an unconstitutional regulation of immigration. In 1976, the U.S. Supreme Court reaffirmed the federal government’s exclusive authority to “regulate immigration.” (De Canas v. Bica, 424 U.S. 351, 354 (1976)) However, in doing so, the Court narrowly defined “regulation of immigration” as “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remaim.” (Id. at 355) Thus, by permitting those who have entered or stayed in the U.S. illegally the ability to remain in the country if they meet certain conditions such as paying a fine and obtaining a work permit, the State of Utah is usurping the federal government’s authority to determine who enters the country and under what conditions they may remain.
H.B. 497, the Arizona-style enforcement-only measure introduced by Rep. Stephen Sandstrom, would require any law enforcement officer conducting a lawful stop, detention, or arrest, to check the immigration status of any person they arrest for a felony or class A misdemeanor if that person is unable to provide valid identification. (§76-9-1003) Police would have the discretion to ask those stopped for less serious misdemeanors about their immigration status and would be required to do so only if the person is arrested and booked.
Finally, H.B. 466 would allow the Governor of Utah to enter the state into a “memorandum of understanding” with the Mexican State of Nuevo Leon to create a pilot program to obtain foreign workers. (63G-12-301) Under the agreement, Nuevo Leon would provide migrant workers to Utah businesses claiming to need the trained labor, while the federal government would issue the nonimmigrant visas. (Id.) Participating businesses must certify that “there are not sufficient workers where that labor is to be performed who are able,willing, qualified, and available” and that employment of foreign workers will not adversely affect Utah wages and working conditions. (Id.)
Utah Attorney General Mark Shurtleff — who assisted lawmakers in drafting H.B. 466 — has already met with White House officials to talk about how Utah’s approach to immigration can be integrated into a larger scheme. (The Salt Lake Tribune, Mar. 2, 2011; The Salt Lake Tribune, Mar. 11, 2011) “It’s unprecedented that a state has come up with an idea about how to legalize illegal immigrants already living in the state,” remarked Frank Sharry, Executive Director of the open-borders group America’s Voice. (Bloomberg Businessweek, Mar. 10, 2011) “The Obama administration should take notice, support the program and start a dialogue with the state,” he added. (Id.) The bills are awaiting Utah Governor Gary Herbert’s signature. (Id.)
Two states last week took affirmative steps to continue issuing driver’s licenses to illegal aliens. In New Mexico, despite a push from Governor Susana Martinez to tighten the state’s lax licensing laws, the state Senate passed a bill last Wednesday which continues to allow illegal aliens to obtain driving privileges. (Reuters, Mar. 10, 2011; HB 78) The bill does increase the residency requirement for any foreign national to acquire a driver’s license in New Mexico from three to six months. (HB 78) It also requires illegal aliens to reapply for a license every two years and increases penalties for falsified documentation. (HB 78)
Governor Martinez expressed disappointment after the Senate vote. “I promised the people of New Mexico that I will fight to repeal this law and that fight will continue,” she said. (Id.) Senate supporters, however, felt their actions were sufficient. “If it’s really about toughening the current law, then we did it,” said state Senator Eric Griego. (Id.) The Senator did admit that the Senate bill is unlikely to pass through New Mexico’s House of Representatives, leaving room for a continued debate on licensing illegal aliens in New Mexico. (Id.)
Similarly, the Washington state Senate killed a bill last Monday which would have banned driver’s licenses to illegal aliens. (Fox News, Mar. 8, 2011) The bill also included other measures designed to reduce identification theft in the state. (SB 5407) The Washington Senate defeated the bill in a procedural motion, but state Senator Mary Margaret Haugen said that she will lobby the state’s governor to provide support for the issue. “Nothing is ever dead in the Legislature,” Haugen, a chief sponsor of the bill, said after the vote. “I’d ask the governor that she needs to stand and take leadership in this role. She needs to recognize what’s happening in this nation.” (Fox News, Mar. 8, 2011) The Senator expressed great concern on the rampant identification fraud taking place in her state. She noted that there are 300,000 more driver’s licenses in Washington than there are drivers. (Id.)
Washington Governor Chris Gregoire has said that she would sign a bill that bans the issuance of driver’s licenses to illegal aliens if it passed through the legislature. Currently New Mexico, Washington and Utah are the only states in the U.S. to issue drivers licenses to illegal aliens. Roughly 83,000 foreign nationals hold driver’s licenses in New Mexico alone.