Legislative Update: 5/30/2017

Fourth Circuit Upholds Block of Revised Travel Freeze, Jeopardizing National Security

By: RJ Hauman

Last Thursday, the Fourth Circuit Court of Appeals upheld a lower court ruling blocking a key provision of President Donald Trump’s revised “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order (EO-2), dealing another blow to an administration repeatedly stymied by activist judges as it attempts to enhance national security. (Daily Caller, May 25, 2017; International Refugee Assistance Project v. Trump) In a divided ruling, the Richmond-based federal appeals court affirmed a nationwide injunction from the U.S. District Court of Maryland barring enforcement of Section 2 of the of the order, which sought to institute a 90-day freeze on the entry of individuals from Iran, Syria, Libya, Somalia, Yemen, and Sudan—all countries designated by Congress and the Obama administration as posing national security risks. (Daily Caller, May 25, 2017) The ruling comes as the Ninth Circuit is considering a similar appeal over the president’s revised travel freeze, although that case also involves refugee admissions. (Id.)

As in previous rulings on the subject, the president’s own words—mainly from the campaign trail—proved fatal to the government’s defense of the order. (Id.) Chief Judge Roger Gregory wrote the majority opinion for the court, which found that statements made by Trump and his surrogates regarding Muslims create the impression that the purpose of the order is discriminatory. (Id.) “These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.” Gregory wrote. (Id.) “We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms,” he added. (Id.) Fellow Democratic appointee Judges Motz, Traxler, King, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris joined Gregory’s opinion. (Id.)

In a scathing dissent, Judge Paul Niemeyer, a George H.W. Bush appointee, argued that the court should confine its inquiry to the text of the order, which is a valid exercise of presidential power authorized under Section 212(f) of the Immigration and Nationality Act (INA). (Id.) “Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds,” he wrote. (Id.) “They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous.” (Id.) Judges Shedd and Agee joined Niemeyer in dissent. (Id.)

In a statement, Attorney General Jeff Sessions blasted the decision of the divided court, maintaining that President Trump’s executive order is well within his lawful authority to keep the nation safe. (Justice Department Press Release, May 25, 2017) “As the dissenting judges explained, the executive order is a constitutional exercise of the President’s duty to protect our communities from terrorism. The president is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States,” Sessions said. (Id.) “This Department of Justice will continue to vigorously defend the power and duty of the executive branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court,” he added. (Id.)

Nearly Three-Quarters of a Million Foreigners Overstayed Their Visas in 2016

By: Shari Rendall

A recently released Department of Homeland Security (DHS) report revealed that foreign nationals overstaying the authorized duration of their visas continues to contribute to the problem of illegal immigration. According to DHS, 739,478 individuals granted temporary admission into the country failed to depart when required to do so during fiscal year 2016. (See DHS Entry/Exit Overstay Report FY2016, May 22, 2017) Of those, at the end of FY2016 (September 30, 2015) 85 percent—or 628,799 individuals—were believed to still be in the country unlawfully. (Id.) Over the past couple of months, DHS identified approximately 84,123 suspected visa overstays who were believed to be in the country but subsequently departed as of January 10, 2017. (Id.) However, 544,676 individuals remain in the United States illegally. (Id.) The DHS report shows a 13 percent increase in visa overstays from the previous year. (USA Today, May 22, 2017)

For this year’s report, DHS changed the way it calculated visa overstays.  In its first Entry/Exit Overstay Report for fiscal year 2015, DHS only provided overstay information for those on B visas (traveling for business or pleasure) and those traveling under the Visa Waiver Program (VWP).  (See FAIR Legislative Update, Jan. 26, 2016) While the Entry/Exit Overstay Report continues to break down the overstays by country of origin, this year’s report was expanded to include temporary workers and their families, trainees, intracompany transferees, treaty traders and investors, students, exchange visitors, those traveling for business or pleasure, and those traveling under the VWP. (DHS Press Release, May 22, 2017) Importantly, this report only sheds light on part of the visa overstay problem. The report only counts the visa overstays of nonimmigrants who entered the United States through air or sea ports-of-entry without accounting for those who enter via land ports-of-entry. (Id.)

Unsurprisingly, the report shows that students and exchange visitors were the most common overstay offenders. Of the 1,457,556 students and exchange visitors in the U.S. scheduled to complete their program in fiscal year 2016, 79,818 failed to leave. (See DHS Entry/Exit Overstay Report FY2016, May 22, 2017) While some subsequently left, about 41,000 remained in the U.S. illegally. (Id.) Foreign students were more than twice as likely as the average visa holder to overstay their visas. (Id.)

DHS calculates that 147,282 visa overstays come from Visa Waiver Program (VWP) countries. (Id.) Of those, 128,806 still remain in the country unlawfully. (Id.) The controversial VWP allows citizens of 38 countries with low visa refusal rates to enter the U.S. for up to 90 days without having to obtain a visa or be interviewed, face-to-face, by a U.S. consular officer. (INA § 217) FAIR has consistently called for ending the VWP because the lack of scrutiny in the admission process encourages illegal immigration. (See e.g. FAIR Press Release, June 22, 2015)

Additionally, 287,107 overstays come from non-VWP countries while 182,269 come from Canada and Mexico. (See DHS Entry/Exit Overstay Report FY2016, May 22, 2017) From that total, 263,470 overstays remain in the country unlawfully from non-VWP countries and 166,076 remain in violation of their visa terms from Canada and Mexico. (Id.)

DHS says that it is stepping up investigating those who overstay their visas especially those who may pose a threat to national security. “To protect the American people from those who seek to do us harm, … ICE’s Homeland Security Investigations special agents systematically review approximately one million records of individuals who violate the terms of their visas or the visa waiver program, prioritizing leads that pose national security or public safety threats ,” the agency said in a press release. (See DHS Press Release, May 22, 2017) However, a recently released audit by the Office of Inspector General (OIG) revealed that ICE employees, charged with the investigation of individuals overstaying their visas, had to piece together information from up to 27 unintegrated internal systems that did not share information. (See FAIR Legislative Update, May 9, 2017)

Trump Administration Likely to Expand H-2B Visa Program

By: RJ Hauman

The Trump administration is likely to expand the controversial H-2B visa program, Department of Homeland Security (DHS) Secretary John Kelly told Congress last week. (Washington Times, May. 25, 2017) Earlier this month, Congress gave Kelly and Labor Secretary Alex Acosta the power to more than double the number of H-2B visas issued this fiscal year. (See FAIR Legislative Update, May 2, 2017) In the weeks since, Kelly indicated that he has been receiving pressure from lawmakers on both sides of the issue, with some saying businesses in their states are desperate for much cheaper foreign labor, and others urging him to protect American workers by not approving the increase. (Washington Times, May. 25, 2017) “This is one of those things I wish I didn’t have discretion,” Kelly told the Senate Appropriations Committee. (Id.) “We’ll likely increase the numbers for this year, perhaps not by the entire number I’m authorized,” Kelly added, setting the stage for the betrayal of a key Trump campaign promise—protecting American workers from foreign competition. (Id.)

The H-2B nonimmigrant visa program allows U.S. employers who meet specific regulatory requirements to bring low skilled foreign workers to the United States to fill temporary non-agricultural jobs. (USCIS H-2B Program Fact Sheet) There is a cap on the total number of foreign workers who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. (Id.) Under the Immigration and Nationality Act, Congress set the H-2B cap at 66,000 workers per fiscal year. (INA § 214(g)(1)(B)) However, the recent $1.1 trillion omnibus spending bill gave Secretaries Kelly and Acosta the authority to ignore this cap and increase the number of low skilled foreign workers admitted by “the highest number” of H-2B nonimmigrants who participated in the H-2B returning worker exemption. (FY 2017 Omnibus, Sec. 543) As a reminder, in December 2015, House Speaker Paul Ryan snuck into the FY 2016 omnibus a provision that exempted from the H-2B cap all low skilled workers admitted between 2013 and 2015. (See FAIR Legislative Update, Dec. 22, 2015) There is no reliable data on the number of H-2B workers who took advantage of the returning worker exemption. It is possible that this provision will allow 66,000 additional cheap foreign workers to flood the labor market through the end of September—further suppressing blue-collar wages and taking away opportunities from Americans trying to get back into the labor force.

New Jersey Passes Bill to Undermine President’s National Security Executive Order

By: State & Local Government Relations

The New Jersey Legislature passed a measure on May 25 to undercut national security efforts and prohibit employees and officers of the Port Authority of New York and New Jersey from providing any aid, resources, or assistance to federal officials implementing President Trump’s March 6 Executive Order related to national security. (Observer, May 25, 2017) The measure, Senate Bill (SB) 3006, passed the Assembly 48-25, a party line vote, and cleared the Senate 22-14. (Id.)

The Port Authority of New York and New Jersey operates Newark Liberty International Airport, John F. Kennedy Airport, and LaGuardia Airport, in additional to other ports and entrance ways into the two states. (PANYNJ) The agency, however, does not typically participate in immigration related proceedings unless federal officials request their assistance. (NJ.com, May 23, 2017)

SB 3006’s passage marks another attempt by the mass immigration lobby to leverage national security and undermine the Trump Administration’s immigration agenda. “The courts have rightly halted the ban, but the case is not yet over,” commented Senate Majority Leader Loretta Weinberg (D-37), who supports the measure.

President Trump’s March 6 Executive Order limits entrance into the United States by foreign national travelers from Iran, Libya, Somalia, Yemen, Syria and Sudan, countries who have all been determined to be sources of terrorism by the Obama Administration. (Executive Order, Mar. 6, 2017; President Trump Statement) The Executive Order has been temporarily suspended by a federal court and is currently being litigated. (NBC News, May 25, 2017)

Governor Chris Christie (R) must approve the bill before it can become law. Because the Port Authority of New York and New Jersey is a bi-state agency, the New York General Assembly must also enact an identical bill for SB 30006 to go into effect. (SB 3006)