Legislative Update: 5/14/2014

New Proposed Rule Will Give Work Permits to H-1B Spouses

On Monday, the Department of Homeland Security (DHS) published a proposed rule which will give work authorization to certain dependent spouses of H-1B nonimmigrant visa holders. (DHS Press release, May 6, 2014; Federal Register, Vol. 79, No. 91, May 12, 2014)

Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers for “specialty occupations.” The visa is most commonly associated with “high-skilled” jobs in the science, technology, engineering, and mathematics (STEM) fields. (Immigration and Nationality Act (INA), § 101(a)(15)(H)) While these workers are generally limited to a total of six years in the U.S., in 2000, Congress amended the law to allow H-1B workers whose employers had applied for their admission as permanent residents to stay in the country until their application is granted or denied. (INA, § 214(g)(4); §11030A(b) of P.L. 107-273) H-1B visa holders may bring dependent spouses and children with them, but they are not currently allowed to work in the U.S. while they are here. (See 8 CFR 214.2(h)(9)(iv) and 274a.12(c)) The visa these dependent spouses hold are known as H-4 dependent visas, and they are valid only as long as the visa held by the H-1B principal. (Id.)

The proposed rule will amend current regulations to allow H-4 visa holders to work while their H-1B principal spouses are in the process of seeking lawful permanent residence status through their employment. (Federal Register, Vol. 79, No. 91, May 12, 2014) Although H-1B visas are supposed to be “nonimmigrant” visas meant to alleviate temporary labor shortages rather than another permanent immigration category, DHS proposed the rule change explicitly to encourage H-1B visa holders to seek permanent residence. (See Federal Register at p. 26886)

Deputy Secretary of DHS Alejandro Mayorkas claims the proposed rule is necessary if American businesses are to remain competitive globally. The increase in work permits will “help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world…” (DHS Press release, May 6, 2014) “Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.” (Id.) Yet, there is no evidence of a shortage of qualified native born scientist and engineers in the United States. (See FAIR’s Jobs Americans Can’t Do? The Myth of a Skilled Worker Shortage, Nov. 2011; see also The Atlantic, Mar. 19, 2014)

True immigration reformer Senator Jeff Sessions (R-AL) blasted the Obama Administration for once again changing immigration laws in a way that creates more competition for out of work Americans, further reducing wages in an already oversaturated labor market. “Fifty million working-age Americans aren’t working. Research shows as many as half of new technology jobs may be going to guest workers. Yet the Administration is now going to immediately add almost 100,000 new guest workers to compete against unemployed Americans — on top of the existing annual supply of approximately 700,000 guest workers and 1 million new permanent immigrant admissions.” (Press Release of Senator Sessions, May 6, 2014)

Homeland Security estimates that this proposed rule will result in as many as 106,600 spouses applying for work permits in its first year and 35,900 applying each year in the future. (Federal Register at pp. 26887-26888). The public may comment on this rule at http://www.regulations.gov. Submissions must include the agency name and DHS Docket No. USCIS-2010-0017.

GOP’s Latest Amnesty Gimmick: Waiving the Bars to Admission

As part of GOP amnesty wing’s latest attempt to push a legalization scheme on the American people, Rep. Raul Labrador (R-ID) offered President Obama a new immigration deal Thursday: eliminate the three and 10-year bars to admission for illegal aliens in exchange for more STEM green cards. (See Washington Times, May 8, 2014; see also video of Labrador’s comments at 11 minutes)

The three and 10-year bar was created to deter illegal immigration and marriage fraud. The three and 10-year bars provide that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years. (See INA 212(a)(9)(B)(i); 8 U.S.C. 1182(a)(9)(B)(i)) Waiving these bars for illegal aliens would have the effect of allowing those who do not meet any other grounds of inadmissibility under the Immigration and Nationality Act to apply for lawful status using the current visa process. Such aliens would inevitably have to be given some form of lawful presence or deferment while waiting for their claims to be processed.

In return for offering to get rid of the three and 10-year bars, Labrador, a former immigration attorney, said he wants more green cards for those in the Science, Technology, Engineering, and Mathematics (STEM) fields. Specifically, Rep. Labrador argued that in exchange, Congress should pass — and President Obama should sign into law — legislation that would grant green cards to students who graduate with advanced degrees in a STEM field. (See Washington Times, May 8, 2014)

Congressman Labrador argued that most Republicans agree with his plan. “I think most Republicans agree that the 3- and 10-year bars have to go away because right now the people that are here illegally, they have to go home to become legal, but then they have to remain home for ten years,” he said. (Id.) He also claimed that eliminating the three and 10-year bars would allow roughly one-quarter of the current illegal alien population (about 3 million people) to legalize. “We remove those bars from them, you could fix the status of about 25 percent of the people that are here illegally right now if they return to their home country and then they come back legally.” (Id.)

Amnesty advocates scoffed, however, at Labrador’s so-called deal. “This offer doesn’t come close to passing the laugh test,” said Frank Sharry, Executive Director of pro-amnesty America’s Voice. (Id.) “We want reform that includes legal status and the opportunity at citizenship for 11 million undocumented immigrants.” (Id.) “If House Republicans are prepared to give us a vote on that, they should give us a call,” he said. (Id.) Mr. Sharry’s comments illustrate that deals like the one offered by Labrador will only lead to a more comprehensive bill, as the amnesty and business lobbies inevitably push for broader legalization schemes and more guest worker programs just like S. 744.

Moreover, Labrador’s idea is nothing new. The Obama Administration has already waived the bars for certain illegal alien relatives of U.S. citizens who show that being separated from their U.S. citizen spouse or parent would cause that relative “extreme hardship.” (See FAIR Legislative Update, Apr. 2, 2012) And, waiving the three and 10-year bars to allow illegal aliens to legalize without having to return home and wait the respective time period was a critical element of the amnesty plan by the now defunct House “Gang of Eight” amnesty working group (of which Labrador used to be a part). According to a House aide who leaked portions of the plan last summer, under the House “Gang’s” plan, otherwise eligible illegal aliens would utilize the family-based and employment-based green card process currently available to aliens looking to enter the country legally. (See FAIR Legislative Update, July 22, 2013; see also FAIR Legislative Update, Mar. 11, 2013) If illegal aliens did not have family or employer sponsors, the House plan would have allowed them to utilize a 15 year path for citizenship, granting them a “probationary status” (meaning immediate legalization and work authorization) similar to the Senate bill. (Washington Post, July 17, 2013) The House “Gang” eventually disbanded and never introduced a bill.

Chamber Ads Support Pro-Amnesty Republicans

As part of a $3 million advertising campaign to influence the 2014 elections, the U.S. Chamber of Commerce launched several ads supporting pro-amnesty Republican Members of Congress. (New York Times, May 6, 2014; The Hill, May 7, 2014) The ad buy, which includes ads for Reps. Mike Coffman (R-CO) and David Valadao (R-CA), is part of approximately $6.6 million the Chamber has spent on Congressional races since February. (The Hill, May 7, 2014; see the Coffman ad here and the Valadao ad here) “We’re hoping that these positive, issue-oriented ads will help jumpstart their campaigns and unite the business community around their efforts,” said Scott Reed, the Chamber’s senior political strategist. (New York Times, May 6, 2014)

On Monday, Chamber President Thomas Donohue promised to spend even more money promoting amnesty. Speaking at a D.C. panel discussion, Donohue told the audience, “We’ve got a lot of heat on that [issue], and were going to put a lot more.” (C-Span2, May 12, 2014) He continued, “If the Republicans don’t [pass amnesty] they shouldn’t bother to run a candidate in 2016. I mean, think about that. Think about who the voters are.” (Id.) 

While Donohue was discussing immigration in Washington D.C., Texas chapters of the Chamber of Commerce were hosting a luncheon featuring House Speaker John Boehner (R-OH).There, the Speaker told business leaders belonging to the San Antonio Chamber of Commerce and the San Antonio Hispanic Chamber of Commerce that he feels “strongly about the need to deal with immigration reform.” (BGov, May 12, 2014) Attempting to soften previous comments that mocked his fellow Republicans for not addressing immigration legislation, he added, “I do believe the vast majority of our members do want to deal with this, they want to deal with it openly, honestly, and fairly.” (Roll Call, May 12, 2014; see also FAIR Legislative Update, Apr. 30, 2014) The Speaker added that he wanted to pass immigration in “chunks” but declined to provide specifics. However, like other statements he has made on immigration since February, the Speaker reiterated that the President will have to demonstrate his “trustworthiness” regarding immigration enforcement before his fellow Republicans will pass “immigration reform.” (Id.)

New York City Council Committee Passes City ID Card Legislation for Illegal Aliens

At the end of April, the New York City Council Committee on Immigration advanced legislation that creates a New York City identity card program for illegal aliens. (City & State, May 1, 2014) Under Introduction (“Intro”) 253, all residents of New York City, including the estimated half-million illegal aliens residing in the city, would be eligible for a municipal ID card. (Intro 253; CNN, Feb. 24, 2014) All city agencies must accept the card as proof of identity and residency for access to city services and the city must promote the acceptance of the card by banks and other public and private institutions. (Intro 253)

The illegal alien identity card program encompassed by Intro 253 is one of Mayor Bill de Blasio’s top legislative priorities. In his first State of the City address, Mayor de Blasio promised to implement the program. (State of the City Transcript, Feb. 10, 2014) “To all of my fellow New Yorkers who are undocumented, I say: New York City is your home too, and we will not force ANY of our residents to live their lives in the shadows,” said Mayor de Blasio. (Id.) The Mayor immediately repeated his statement in Spanish. (Id.) In the New York City Council Committee on Immigration hearing last week, Speaker Melissa Mark-Viverito echoed those comments in her opening remarks, indicating her resolve to push Intro 253 through, saying “Let it be known, and let it be clear, that this is a priority for this New York City Council, and we will have municipal IDs in New York City.” (City & State, May 1, 2014)

Intro 253 is facing strong opposition from true immigration reformers. (OZY, Apr. 29, 2014) New York State Senator Greg Ball, member of the New York state Veterans, Homeland Security, and Military Affairs Committee, has labeled the legislation the “de Blasio Terrorist Empowerment Act.” (Id.) “As the details on the Mayor’s plan become clear, our worst fears have been confirmed. Without requiring fingerprints, or other proper security checks, this will create a homeland security nightmare for law enforcement and the vulnerable civilian population of New York City and beyond,” said Senator Ball. (Press Release, Apr. 10, 2014) Senator Ball further noted, “These non-ID cards will be used as breeder documents, not just by illegal alien workers, but by criminals and terrorists looking to open bank accounts, board planes and trains, execute lease agreements, and ultimately harm New Yorkers.” (Id.) Ira Mehlman, spokesperson for the Federation for American Immigration Reform, said Intro 253 not only invites terrorism to New York City, but contravenes federal law. (OZY, Apr. 29, 2014)

The full Council must vote on Intro 253 before it can become law. An identification card is one of the most useful items for creating an appearance of lawful presence. Providing identification to illegal aliens only enables the illegal aliens to continue to live, work, and vote unlawfully in contradiction to federal law. Furthermore, if Intro 253 passes, it will likely lay the groundwork for future local noncitizen voting legislation. (City & State, Apr. 23, 2014) Councilman Daniel Dromm, the other co-prime sponsor of Intro 253, introduced a bill last year to allow noncitizens to vote in municipal elections and intends to reintroduce similar legislation in the upcoming legislative session. (Id.) Councilman Carlos Menchaca has also indicated an opportunity to expand noncitizen voter eligibility once the municipal ID card program is implemented. (Id.)