Legislative Update: 11/25/2013

Speaker Boehner: Immigration Reform Not Dead

Barely a week after he said the House will not go to conference with the 1,300 page Senate amnesty bill, House Speaker John Boehner (R-OH) renewed his commitment to passing “immigration reform,” a term commonly used to mean amnesty for the country’s 11-12 million illegal aliens.

“The only way to make sure immigration reform works this time is to address these complicated issues one step at a time,” said the Speaker at a press conference Thursday. (See Bloomberg Government Transcript, Nov. 21, 2013) “I think doing so will give the American people confidence that we’re dealing with these issues in a thoughtful way and a deliberative way. So I’m hopeful we can make progress on this very important issue,” he continued. (Id.)

In fact, when asked whether immigration reform was dead, the Speaker replied, “Absolutely not. I have made clear, going back to the day after the last election in 2012 that it was time for Congress to deal with this issue. I believe that Congress needs to deal with this issue.” (See Bloomberg Government Transcript, Nov. 21, 2013)

Speaker Boehner also signaled that several House Republicans are continuing to work behind the scenes on a plan to pass immigration reform. “There are a lot of private conversations that are underway to try to figure out, how do we best move on a common-sense, step-by-step basis to address this very important issue…because it is a very important issue.” (Id.) Similarly, during his press conference the previous week, Boehner told reporters that House Judiciary Chairman Bob Goodlatte (R-VA) — whose committee has jurisdiction over the immigration issue — was working on “principles” for the chamber to follow in pursuing immigration reform in the coming year. (Roll Call, Nov. 13, 2013)

The Speaker’s recent comments make clear that amnesty and mass immigration proposals are far from “dead” in the House this coming year. To be sure, passing immigration bills piecemeal—rather than in one comprehensive bill such as in the Senate—still gives GOP leaders room to push for amnesty legislation or massive increases in foreign workers. In reality, depending on the path Leadership takes, the House approach, even if it is more transparent, could still have the same result as the Senate’s 1,000+ page bill.

Indeed, even House Majority Leader Eric Cantor has acknowledged that the House’s piecemeal bills are intended to fit together in a comprehensive manner.  Last week in a heated exchange with Minority Whip Steny Hoyer (D-MD) on the chamber floor Cantor said, “These [immigration bills] all fit into a larger puzzle,” he said. (See Congressional Record, Nov. 15, 2013, p.H7147)

Increasing the cause for concern, President Obama has given the GOP leaders his stamp of approval in taking this approach to achieving “comprehensive” immigration reform. “[House Republicans are] suspicious of comprehensive bills,” Obama said at a Wall Street Journal CEO summit. “But you know what? If they want to chop that thing up into five pieces, as long as all five pieces get done, I don’t care what it looks like.” (AFP, Nov. 19, 2013)

Terrorists Entered U.S. as Refugees

According to a FBI investigation of roadside bombs in Afghanistan and Iraq, the U.S. government has allowed at least two al Qaeda operatives into the U.S. as refugees. (ABC News, Nov. 20, 2013)  Waad Ramadan Alwan participated in bombings in Iraq.  Alwan and fellow Iraqi citizen Mohanad Shareef Hammadi applied to the U.S. Iraqi Refugee Admissions Program in 2009.  The federal government admitted them into the country as refugees after they claimed to be persecuted in Iraq. (Id.) 

The refugee program is for a person living outside his country of nationality who claims to have experienced persecution or who has a well-founded fear of persecution if he were forced to return to his homeland.  The U.S. allows individuals to reside in the country with refugee status for twelve months and then requires them to apply to be permanent resident aliens.  The U.S. government permits refugees to receive public benefits. (See INA § 207, 209; see also State Department Website, updated May 31, 2013)

Once inside the U.S., Alwan and Hammadi lived in Bowling Green, Kentucky, where they plotted to supply money and weapons to al Qaeda in Iraq and bragged about killing U.S. soldiers.  (Id.)  Alwan even received public housing and welfare benefits.  (Id.) After being caught in a counter-terrorism sting, they pled guilty in 2013 to material support to terrorism, as well as falsifying immigration records. (U.S. DOJ Press Release, Jan. 29, 2013) 

This recent exploitation of the U.S. refugee program is yet another example of the security vulnerabilities plaguing our immigration system. A DHS official, who spoke to the press on condition of anonymity, said, “This case demonstrates specific gaps that were present in the screening process.” (Courier Journal, May 31, 2011)  The gaps included the failure to check all relevant government databases, to update databases with all the information available, and to search with sufficient Arabic name or spelling variations. (L.A. Times, July 18, 2011)  Furthermore, the FBI had 100,000 explosive devices collected in warzones that were unchecked for terrorists’ fingerprints.  (ABC News, Nov. 20, 2013) 

To be sure, the federal government had Alwan’s fingerprints already, yet USCIS was never notified when processing his refugee application. In fact, his fingerprint check raised no concerns even though the U.S. had his fingerprints for 21 months and could have connected him to terrorist bombing attempts.  (ABC News, Nov. 20, 2013)  In 2006, Alwan put his fingerprints on a cordless phone wired to an unexploded bomb that the U.S. military obtained, but the FBI labeled it “low priority,” sent it to Quantico, Virginia, and did not check it for fingerprints until 5 years later. (L.A. Times, July 18, 2011) Furthermore, in 2007, the U.S. acquired a copy of Alwan’s fingerprints when he crossed the Iraqi border to Syria, but the Army database was off the Internet and not connected to the immigration database.  (ABC News, Nov. 20, 2013) 

To address these gaps, the State Department stopped processing applications to the U.S. Iraqi Refugee Admissions Program for six months in 2011 and took steps to integrate and update government databases with terrorist watch list information. (Id.)  DHS checked databases and gave the FBI 300 names of Iraqi refugees to investigate, but the FBI refused to say then how many of those refugees posed a threat.  (L.A. Times, July 18, 2011)  Authorities also rescreened refugees from Yemen, Somalia, and other countries where terrorist groups are active. (Id.)

Nonetheless, Alwan and Hammadi may not be the only two refugees admitted by the U.S. government who are terrorists. Gregory Carl, director of the FBI’s Terrorist Explosive Device Analytical Center (TEDAC) said, “We are currently supporting dozens of current counter-terrorism investigations like [Alwan and Hammadi’s].” (ABC News, Nov. 20, 2013)  House Homeland Security Committee Chair Rep. Michael McCaul (R-TX) remarked, “I wouldn’t be surprised if there were many more than that.” (ABC News, Nov. 20, 2013) 

Since 2003, the U.S. has admitted 84,902 Iraqi refugees. (USCIS Refugee Processing Fact Sheet, June 6, 2013).

Obama uses Visa Waiver Program to Implement another Backdoor Amnesty

On the heels of last week’s memo granting backdoor amnesty to certain illegal alien relatives of military members, the Obama Administration has yet again issued another policy memo, this time instructing U.S. Citizenship and Immigration Services (USCIS) personnel to use prosecutorial discretion to give individuals who overstay their authorized time in the U.S. under the Visa Waiver Program (VWP) a green card.

This less publicized memo grants illegal aliens who are immediate relatives of U.S. citizens who entered the country through the VWP and remained beyond their authorized stay the ability to obtain a green card and eventual citizenship. (USCIS Memo, Nov. 14, 2013)

Generally, federal immigration law requires foreign nationals to obtain a visa before they can be admitted to the United States. However, under the VWP, eligible aliens from designated countries are permitted to enter the U.S. for up to 90-days for “business or temporarily for pleasure” without a visa. (INA §§ 212(a)(7)(B)(i)(II); 217(a)(1); 101(a)(15)(B)) This 90-day time limit can only be temporarily extended in “emergency” situations, and in order to qualify to enter the U.S. under the VWP, an individual must waive his or her right to contest any removal orders placed against them. (8 C.F.R. § 217.3(a); INA § 217(b))

Despite the fact that federal law clearly states the VWP is a temporary, limited-admission program, this policy memo argues that the Department of Homeland Security (DHS) not only has the authority to decline to remove a VWP overstay, but to grant the alien a green card as well if the alien is an immediate relative (spouse, parent, child) of a U.S. citizen. (USCIS Memo, at p. 2) Under current law, those admitted into the country through the VWP are ineligible to adjust status for legal permanent residence (green cards) unless they are immediate relatives of citizens. (INA at § 245(c)(4)) Specifically, this memo authorizes USCIS to adjust the status of applicants who file for a green card under this provision despite overstaying their authorized stay provided they: (1) entered under the VWP, (2) are “present in the United States” when applying, and (3) otherwise “meet the requirements of INA section 245.” (Id. at p. 5)(emphasis added)

The memo is so broad that it even permits VWP overstays who have already been ordered deported to obtain a green card as long as Immigration and Customs Enforcement (ICE) “rescinds or withdraws the removal order.” (Id.) In fact, the only immediate relative VWP overstays ineligible to receive a green card under this policy memo are (1) aliens investigated, arrested, or convicted of an “egregious public safety offense;” or (2) aliens with “fraud and/or national security issues that require resolution.” (Id.)

Granting amnesty to aliens who overstay the VWP is significant because it demonstrates that the Obama Administration will not even enforce our immigration laws against the group of offenders easiest to remove from the country. Even more egregious, the memo is drafted in a manner that allows both current and future immediate relative VWP overstays to receive green cards, effectively dismantling the 90-day time period of the VWP.

This policy memo is just the latest example of the Obama Administration’s blatant disregard for the enforcement of U.S. immigration law. During his first term, the Obama Administration issued a series of policy memos—collectively known as the Morton Memos after then-ICE Director John Morton—that granted administrative amnesty to thousands of illegal aliens. Now, within days of Speaker John Boehner (R-OH) declaring that the House of Representatives will never conference with the Senate’s mass amnesty bill, S. 744, the administration began churning out policy memos granting amnesty to additional classes of illegal aliens by exploiting loopholes and distorting laws.

For more information, read FAIR’s timeline of President Obama’s Record of Dismantling Immigration Enforcement.

USCIS Circumvents Federal Law Governing Time Limits on Temporary Work Visas

Last week U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum (dated November 11, 2013) that will allow the Obama Administration to circumvent existing time limits for guest worker visas. (See Policy Memorandum, Nov. 11, 2013) The memo specifically applies to H-2A (agricultural workers), H-2B (low-skilled workers), and H-3 (“trainee”) visas, and achieves its goal by amending the USCIS Adjudicator’s Field Manual, the guide instructing USCIS officials on how to process applications.

Under the H-2A and H-2B programs, aliens may come temporarily to the United States as seasonal workers or trainees. (See INA § 101(a)(15)(H)(ii)(a), 101(a)(15)(ii)(b), and 101(a)(15)(iii); 8 CFR 214.2(h)(1)(ii)(C-E)).  When Congress passed the law it envisioned that workers obtaining such visas would have the intention of returning to their home country after a temporary period of employment rather than of moving to the United States permanently.  Regulations establish time limits for each of these visas: a total of three years for H-2A visa holders, until the holder spends at least six uninterrupted months outside the United States, generally less than a year for an H-2B visa holder, and either eighteen months or two years for an H-3 trainee.  (See 8 CFR 214.2(h)(5)(viii)(C), 214.2(h)(15)(ii)(C), 214.2(h)(6)ii)(B), 214.2(h)(9)(iii)(C), and 214.2(h)(15)(ii)(D)). In addition, current regulations allow the spouse and dependent children of these visa holders to also receive a derivative visa, which is subject to the same limitations as the principal visa, and does not allow the dependent visa holder to work.  (See 8 CFR 214(h)(9)(iv)).

USCIS’s new policy memorandum instructs Immigration Services Officers to allow the holders of a dependent visa to obtain their own principal visa as a seasonal worker or trainee without counting the time previously spent in the country against the maximum time limit of the visa.  This policy therefore doubles the amount of time a seasonal worker or trainee could stay in the United States, as it allows a spouse who has been a derivative visa holder to essentially switch places with the principal visa holder when the original principal visa holder’s maximum time limit has been reached.  The change in status would thus reset the clock to zero for both. 

It is unclear the extent to which the Administration will use this policy to further undermine regulatory limits placed on workers.  For example, current regulations also require H-2A, H-2B, and H-3 visa holders to depart the country for three or six months before they can extend or adjust their status, or be readmitted to the country. (See 8 C.F.R. 214.2(h)(5)(viii)(C) and 214.2(h)(13)(iv), and also 214.2(h)(13)(i)(B)) However, this latest memorandum is silent as to this departure requirement, making it unclear whether principal and derivative visa holders will be allowed to switch status without ever returning home.  In practice, this policy could have the effect of allowing seasonal and temporary workers to establish de facto permanent residence in the United States.  Furthermore, very little would stop the new holder of the derivative visa from continuing to work while remaining in the country, as our government has yet to require all employers to use the E-Verify employment eligibility system.

By instituting this policy by means of an update to the USCIS’ Adjudicator’s Field Manual rather than by an appropriate change to the law or regulations, the Obama Administration has again unilaterally expanded immigration while bypassing the public scrutiny and degree of accountability which the proper regulatory process is designed to ensure.  With this memorandum, the USCIS has found yet another way to undermine existing immigration law. Citizenship and Immigration Services is seeking public comments on its memorandum until December 2, 2013. (See the USCIS website for instructions on how to comment.)

Foreign Students at Record Level; DHS Proposes Rule Changes to Bring in More

On Wednesday, the Department of Homeland Security (DHS) proposed changing federal regulations to allow even more foreign students to enroll at U.S. colleges and universities.  DHS’s proposed rule would affect this change by allowing spouses and children of foreign students to study at U.S. colleges and universities, so long as the course of study is not full-time.  (DHS proposed rule, Nov. 20, 2013)

The large majority of foreign students enter the U.S. through either F-1 or M-1 visas, neither of which has a numerical cap.  F-1 visas allow foreign students to study at a typical college or university; M-1 visas allow foreign students to study at vocational schools.  (See INA § 101(a)(15)(F)(i); § 101(a)(15)(M)(i))  Federal law also allows F and M visa holders to bring in spouses and minor children with them while they study in the U.S.  These spouses and children enter the U.S. on what is called a “derivative visa,” meaning the visa that is dependent on the primary visa holder (the F-1 or M-1 alien).  The spouses and children of foreign students, therefore, enter the U.S. on an F-2 and M-2 visas.   (See INA § 101(a)(15)(F)(ii); § 101(a)(15)(M)(ii)) 

In 2003, the Bush Administration adopted regulations that limited the course of study spouses and children of foreign students (F-2s and M-2s) could undertake.  The reason for that rule was to stop spouses of F-1 visa holders from undertaking a course of study that really should require these spouses to obtain F-1 visas themselves.  Thus, the current rules bar F-2 spouses from engaging in full-time study, unless the study is “avocational or recreational” (essentially hobbies).  F-2 children may enroll in full-time primary or secondary school.  (8 C.F.R. § 214.2(f)(15)(ii)(A))  The rules also expressly say that if an F-2 spouse or child wants to otherwise engage in full-time study in the U.S., he or she must apply for an F-1 visa. (8 C.F.R. § 214.2(f)(15)(ii)(B)).  The rules for M-2 spouses and children mirror the rules for F-2 aliens.  (See 8 C.F.R. § 214.2(m)(17)(ii)) (See USCIS website for more information regarding student visas; see also FAIR’s website)

Even with this limitation, however, the number of foreign students has soared to its highest level ever.  Over the past decade (2003-2013), the number of foreign students in the U.S. has grown 40 percent, now totaling 819,644.  (Institute of International Education, 2013 Open Doors Report, Fast Facts)  In the last year alone (2012-2013), the number of foreign students has increased 7.2 percent.  (Id.)  China accounts for 29 percent of the total number of foreign students; India 12 percent; South Korea 9 percent; Saudi Arabia 5 percent and Canada 3 percent.  (Id.) About 21 percent of foreign students rely primarily on U.S. colleges and universities to pay for their studies.  (2013 Open Doors Report, Briefing Presentation) 

The main reason for the growth of foreign student enrollment, according to the Institute of International Education, is overseas recruitment by U.S. colleges and universities. (Id.)  Colleges and Universities like enrolling foreign students in particular because they pay full tuition.  And as a result of increased recruitment efforts, 72 percent of colleges and universities reported an increase in foreign student enrollment in 2013.  (Id.)  But despite this broad-based growth, 5 percent of institutions still host the large majority (69 percent) of the foreign student population.  The top hosting institutions include: (1) University of Southern California; (2) University of Illinois, Urbana-Champaign; (3) Purdue University; (4) New York University; (5) Columbia University; and (6) the University of California, Los Angeles. (2013 Open Doors Report, Fast Facts)   

But despite this record growth, the Obama Administration argues it needs to attract more foreign students. In the proposed rule issued Wednesday, DHS argues that the U.S. is “engaged in a global competition to attract the best and brightest international students….”  (Proposed Rule, p. 13)  Allowing spouses to enroll part-time in U.S. colleges and universities, DHS argues, would “enhance the quality of life” for these foreign families and “provide greater incentive for international students to study in the United States.” (Proposed Rule, p.1, 13)  DHS does not address what will happen to U.S. students who already face stiff competition to enter into a set number of slots at the same colleges and universities.  It does, however, report that there are approximately 84,000 F-2 and M-2 aliens in the U.S. as of 2012.  That number would likely grow with the rule change.  Indeed, that appears to the intent of the rule.

In addition, to help U.S. colleges and universities to administer programs for foreign students, DHS’s proposed rule also lifts the cap on the number of administrators a college or university may hire to serve the needs of foreign students and conduct the reporting on foreign students required by law.  Current regulations limit the number of such administrators, called “designated school officials (DSOs), to 10 per campus.  (8 C.F.R. 214.3(l)(1)(iii))  Under the proposed rule, there would be no numerical cap. Instead, institutions would be able to propose a number of DSOs to the government for approval. (Proposed rule, p.11)  According to DHS, lifting the cap on DSOs is desirable so schools can better meet the needs of foreign students. (Id.)

Pursuant to the general rule-making process, DHS will collect comments on this proposed rule for a number of weeks.  It will then decide whether to alter the rule based on the comments or keep it as is, and issue a final rule which will be binding.

Rep. Perry Introduces DHS Accountability Act

On Thursday, Rep. Scott Perry (R-PA) introduced H.R. 3611, legislation that would require the Secretary of the Department of Homeland Security (DHS) to submit an annual report to Congress on the effects of the Obama Administration’s immigration policy changes. The legislation would also require future changes be made through the formal rulemaking process, as opposed to by mere policy memoranda as it is currently being done by DHS.

Specifically, Perry’s “DHS Immigration Accountability and Transparency Act of 2013” would require the DHS Secretary to submit annually to the Homeland Security Committees of the House and Senate a report that includes statistics and other data on the effects of President Obama’s backdoor amnesty initiatives. (See H.R. 3611 §2(a)) The information to be gathered in the report includes:

• Statistics on the removal of aliens from the U.S. over the last 10 years, including the number of aliens placed in removal  proceedings, but never removed;
• Statistics and a cost-benefit analysis regarding the use of Federal funds to implement each immigration policy directive issued by the Obama Administration;
• The number of aliens without lawful presence or status in the U.S. with status that was modified or otherwise adjusted as a result of each policy directive;
• The number of aliens without lawful presence or status in the U.S. who applied for and were denied relief under a policy directive, including the percentage of aliens who were denied relief but DHS never removed from the country (and explanation as to why);
• The number of removal cases “administratively closed” as a result of the Obama Administration’s directives, as well as the new status (if any) granted to the alien; and
• Statistics on the number of aliens without lawful presence or status in the U.S. who have been released from prisons or detention centers since President Obama took office. (Id. at §2(b))

The report must be made public, providing the American people the ability to view and monitor the effects of the Administration’s immigration directives. (Id. at §2(c))

Moreover, to prevent additional abuses of discretion by President Obama and from any prospective administration, the legislation also takes the important step of ensuring that any future immigration policy changes are treated as a rule under the Administrative Procedures Act. (Id. at §3) This change would allow stakeholders and the public to view and comment on an administration’s proposed changes prior to them taking effect.

Thus far six true immigration reformers have signed on Rep. Perry’s legislation as co-sponsors, including Reps. Michele Bachmann (R-MN), Lou Barletta (R-PA), Tom Cotton (R-AK), Phil Gingrey (R-GA), Lamar Smith (R-TX), and Chris Stewart (R-UT).

Johnson Steps Closer to Becoming Next DHS Secretary

The Senate Homeland Security and Governmental Affairs Committee approved Jeh Johnson’s nomination to become the country’s fourth Secretary of the Department of Homeland Security (DHS) on Wednesday. (Fox News, Nov. 20, 2013)

Though the Committee approved the ex-Pentagon lawyer’s nomination by voice vote, Sens. John McCain (R-AZ) and Rand Paul (R-KY)—neither of whom attended Wednesday’s hearing—requested they be recorded as “no” votes. (Politico, Nov. 20, 2013)

Senator McCain said he was going to place what’s referred to as a “hold” on Johnson’s nomination, effectively blocking a confirmation vote on him until he provided information “as to what is necessary to have 90 percent effective control of our border.” (Id.; see also National Journal, Nov. 13, 2013) However, recent changes in Senate rules make that move’s effectiveness less predictable (Sens. Chuck Grassley (R-IA) and Lindsey Graham (R-SC) had also announced holds).

Last week, the Senate voted 52 to 48 to change decades-old procedure granting the minority party the ability to block presidential appointments though the use of a filibuster (unlimited debate). (Los Angeles Times, Nov. 21, 2013) Majority Leader Harry Reid (D-NV) used an unprecedented procedural move referred to as the “nuclear option” to hold the vote, making it so that now only a simple majority—rather than the previous 60 vote threshold—is required to approve all executive branch and lower court nominees. (Id.; see also Washington Post, Nov. 21, 2013)

The rule change is expected to ease Johnson’s nomination through the Senate, which the White House says it hopes will occur sometime in December. (Politico, Nov. 21, 2013)   

CO: Recall Hudak Campaign Is Halfway to Goal

The effort to recall State Senator Evie Hudak (D-Westminster) is halfway to the goal of collecting 18,900 signatures by December 3, 2013. The petition for recall charges, among other things, that Senator Hudak has voted to make citizens less safe, rushed legislation on important issues, refused to hear testimony from citizens holding views incompatible with her own, and driven hundreds of jobs from Colorado.

Hudak is no stranger to immigration-related legislation. She sponsored and voted for the following bills in the Colorado General Assembly:

• Senate Bill 251, which made illegal aliens eligible for state driver’s licenses.
• Senate Bill 33, which made illegal aliens eligible for taxpayer funded in-state tuition rate benefits.
• House Bill 1258, which repealed 2006 legislation that prohibited local governments from enacting any policy that limits or prohibits local law enforcement officials from cooperating with federal immigration officials.

As the recall campaign enters the final weeks, Hudak supporters are resorting to scare tactics in an attempt to suppress the collection of signatures. The so-called “Democracy Defense Fund” launched a robocall campaign in Hudak’s district that warned residents not to open their doors for signature gatherers as some might be criminals. (9News.com, Nov. 12, 2013) The call has confused and scared some residents as it resembles a reverse emergency notification from local authorities. (Id.) The robocall campaign is a follow-up to a door hanger campaign launched by the same organization in October. (9News.com, Oct. 30, 2013) The hangers warned residents that the signature gatherers are potential criminals, some even possible sex offenders. (Id.)

The Colorado Alliance for Immigration Reform (CAIRCO) recently reported that signature gatherers and petition signers have alleged harassment from recall opponents, such as blocking people from getting out of their cars to sign the petition, parking in front of people so they can’t leave after signing, yelling obscenities at people with reports of targeting women and senior citizens who are trying to sign, blasting bullhorns at the volunteers at close range, and photographing petition signers and the license plates of their cars. (CAIRCO alert, Nov. 15, 2013)

Earlier this year, State Senate President John Morse (D-Colorado Springs) and Senator Angela Giron (D-Pueblo), who also voted for the immigration-related bills mentioned above, were voted out of office in the first legislative recall in Colorado’s history. If Hudak is recalled, Democrats would lose their majority in the state senate.

You can find out more information about the effort to recall Senator Hudak from its sponsors at the official Recall Hudak Too website.