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Legislative Update: 5/9/2017

May 9, 2017
FAIR Legislative Update

IG: Systemic IT Flaws Prevent DHS From Tracking Visa Overstays

By: Shari Rendall

A recently released audit by the Office of Inspector General (OIG) revealed that the Department of Homeland Security’s (DHS) IT systems hampered Immigration and Customs Enforcement’s (ICE) efforts to track individuals who overstay their visas. (See OIG Report, May 1, 2017) According to the OIG report, 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 as well as several external systems. (Id.) The cumbersome and manual searches for information on visa overstays resulted in only 3,402 arrests (less than .4 percent) of the 1.6 million foreign nationals that overstayed the authorized duration of their visas and became part of the illegal alien population in the United States. (Id.; see FAIR Legislative Update, Mar. 7, 2017)

The report also found that agents often wasted huge amounts of time investigating false leads and that it could take months to determine whether individuals actually overstayed their visas. (See OIG Report, May 1, 2017) According to the report, ICE spent significant time investigating individuals who should not have been considered overstays, thus diverting resources from overstays that could be potential security risks. (Id.) Of the 9,968 suspected visa overstays that were sent to Homeland Security Investigations (HIS) in 2015, 4,148 were not actual overstays – 1,649 had departed the country and 2,499 had altered their immigration status. (Id.)

Further, the report highlights the problems that persist with the government’s failure to fully implement biometric entry-exit screening at all ports-of-entry. Despite Congress requiring the federal government to implement an entry-exit system since 1996 and, requiring it to be biometrically based since 2004, it remains only partially completed. (Id., See FAIR Legislative Update, Apr. 19, 2016) While the entry segment has been in place for nearly a decade, the exit portion of the system has been neglected and there is no biometric system currently in place for any port of exit out of the U.S. by land, air, or sea. (Id.) This failure of the federal government to implement a biometric entry-exit system at all ports-of-entry has resulted in the continued massive visa overstay issue that also poses significant national security implications.

Importantly, the OIG report only sheds light on part of the visa overstay problem. First, the report only considers the number of overstays of the B- visa and does not calculate the overstay numbers of other visa categories, including the F-1 student visa; H- and L- visas; or the J-1 exchange visa. (See FAIR Legislative Update, Jan. 26, 2016) Additionally, the report only counts the B- visa overstays of nonimmigrants that entered the United States through air or sea ports-of-entry without accounting for those who enter via land ports-of-entry because, surprisingly, that biographic information is not being captured. (Id.)

In the absence of a complete biometric exit system, DHS was forced to rely on third-party departure data to confirm an individual’s departure. (See OIG Report, May 1, 2017) Often times, the information immigration officials received was flawed and the individuals they thought had departed were still in the country and ones they thought were in the country had departed. (Id.) ICE agents were unable to report how many times the information they received was wrong. (Id.) For example, one individual that was being investigated as a potential overstay was listed as leaving but had actually given his airline ticket to a family member and was still living in the U.S. (Id.)

The Trump administration has prioritized the completion of the biometric entry-exit system which will provide a more accurate accounting of overstays. The “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order directs the DHS Secretary to “expedite the completion and implementation of a biometric entry-exit tracking system.” (See FAIR Legislative Update, Mar. 7, 2017)

According to House Judiciary Chairman Bob Goodlatte (R-VA), “visa overstays cannot be fully tracked without a biometric exit system.” (See Goodlatte Press Release, May 4, 2017) “Visa security is a matter of national security, and it is imperative that we know who is coming to our country and when they leave so that we protect American citizens and our interests.” (Id.) “Fortunately, President Trump and his administration are fully committed to swiftly completing this much needed tracking system.” (Id.)

Congress Passes Funding Bill That Harms American Workers

By: Robert Law

Last week, Congress passed a bill to fund the government for the rest of the fiscal year that is filled with provisions contrary to the national interest. Despite Republicans controlling both chambers, the nearly 1700 page bill ignores most of President Donald Trump’s immigration campaign promises. The House passed the bill, H.R. 244, 309-118 on Wednesday and the Senate followed suit on Thursday in a 79-18 vote. (House Roll Call Vote #249; Senate Roll Call Vote #121) President Trump signed the $1.1 trillion omnibus into law on Friday to fund the government through September 30.

The most outrageous provision in the omnibus is that it harms American workers by significantly increasing low skilled foreign workers. Even though Congress has established a cap of 66,000 H-2B guest workers (low skilled non-agriculture) per year, the funding bill authorizes the Homeland Security Secretary to ignore this limit and flood the market with more H-2B workers equal to “the highest number” of H-2B nonimmigrants who participated in the “returning worker exemption” in any fiscal year. (See FAIR Legislative Update, May 2, 2017) It is possible that 66,000 (or more) low-skilled workers will be admitted over just the next four months to take jobs away from blue collar Americans and further suppress wages. (Id.) Additionally, the bill allows employers to use private wage surveys to calculate H-2B wages, likely depressing the prevailing wage rate.

Other provisions that ignore the national interest include:

  • No funding for new border wall construction—one of President Trump’s main campaign promises;
  • Reauthorizing the fraudulent EB-5 regional center program;
  • Failing to expand E-Verify;
  • Increasing the number of “special immigrant visas” for Afghanis by 2,500 even though Congress just increased the number by 3,000 last fiscal year;
  • $1.6 billion for refugee resettlement in the United States;
  • Prohibiting the collection of “border crossing fee” at land ports-of-entry; and
  • Continuing funding grants for providing humanitarian relief for unaccompanied alien minors who should be promptly returned home in Central America instead.

DOJ Data Shows a Significant Prison Population of Incarcerated Aliens

By: RJ Hauman

Pursuant to President Trump’s Executive Order on Public Safety in the Interior of the United States, the Department of Justice (DOJ) released the first quarterly report on aliens currently incarcerated under the supervision of its Bureau of Prisons (BOP). (DOJ Press Release, May 2, 2017; see Trump Executive Order, Jan. 25, 2017) “Illegal aliens who commit additional crimes in the United States are a threat to public safety and a burden on our criminal justice system,” Attorney General Jeff Sessions said in a press release, underscoring the importance of the Department’s data collection efforts. (DOJ Press Release, May 2, 2017) “This is why we must secure our borders through a wall and effective law enforcement, and we must strengthen cooperation between federal, state and local governments as we strive to fulfill our sacred duty of protecting and serving the American people.” (Id.)

Specifically, the report revealed that there are 45,493 foreign-born inmates currently in BOP custody, of which 3,939 are U.S. citizens (either naturalized or derivative). (Id.) The report also details the immigration status of the remaining 41,553 incarcerated illegal aliens. (Id.) Approximately 54.2 percent of these illegal aliens have final orders of removal, 33.4 percent are under ICE investigation for possible removal, and 12.3 percent are still pending ICE adjudication. (Id.) Only less than half a percent have been granted relief on the basis of an asylum claim. (Id.)

The new data also helps expose the significant cost of incarcerating criminal aliens, which runs into the billions. According to the Federal Register, the BOP spends on average $30,618.85 per year on each inmate. (BOP Annual Determination of Average Cost of Incarceration) Therefore, U.S. taxpayers are spending a whopping $1.2 billion per year to incarcerate illegal aliens in federal prisons.

It is worth noting that the DOJ and Department of Homeland Security (DHS) do not currently have a program that collects data regarding the immigration status of convicted aliens incarcerated in state prisons and local detention centers throughout the United States. (DOJ Press Release, May 2, 2017) To address this need, the DOJ said it is in the process of establishing such a program through its Office of Justice Programs (OJP), which houses the Bureau of Justice Statistics (BJS). (Id.) The collection of such data from state and local facilities would allow policymakers and the American people to better understand the burden of illegal aliens on our criminal justice system.

Pew: U.S. Has More Immigrants than Any Other Country in the World

By: RJ Hauman

Last week, the Pew Research Center released a new study showing that the U.S. has more immigrants than any other country in the world. (Pew Research Center, May 3, 2017) In 2015, the U.S. foreign-born population reached a record high of 43.2 million, accounting for about one-fifth of the world’s migrants. (Id.) “Since 1965, when U.S. immigration laws replaced a national quota system, the number of immigrants living in the U.S. has more than quadrupled,” the Pew study noted. (Id.) Immigrants currently account for 13.4 percent of the U.S. population, nearly triple the share in 1970. (Id.) 

Pew’s statistical portrait of the foreign-born population went on to note that immigration will remain a significant driver of population growth, even more so than it has over the past half-century. (Id.) Between 1965 and 2015, new immigrants and their descendants accounted for 55 percent of U.S. population growth, adding 72 million people to the nation’s population as it grew from 193 million to 324 million. (Id.) Looking ahead, immigrants and their descendants are projected to account for nearly 90 percent of U.S. population growth through 2065, assuming current immigration trends continue. (Id.)  This would effectively result in a population increase of 103 million people, as the nation swells to a population of 441 million. (Id.)

Victory in Texas: Governor Abbott Signs Anti-Sanctuary Bill

By: State & Local Government Relations

On Sunday, May 7, Texas Governor Greg Abbott (R) signed Senate Bill (SB) 4, strong anti-sanctuary legislation to promote public safety and ensure law enforcement is able to fully cooperate with federal immigration officials. (Texas Tribune, May 7, 2017) Texas is the second state to pass a state-wide anti-sanctuary law this year. Mississippi Governor Phil Bryant (R) signed a bill into law outlawing sanctuary cities in March. (US News, Mar. 27, 2017)

Specifically, SB 4 prohibits state and local entities from adopting, enforcing, or endorsing policies that prohibit or materially limit the enforcement of immigration laws. (SB 4) Public university and college campuses are explicitly included in these requirements. (Id.) SB 4, however, does make an exception for local school districts, public health centers, and other community centers. (Id.) SB 4 also authorizes law enforcement to inquire into a person’s immigration status during a lawful investigation to a criminal offense. (Id.)

To ensure officers comply with the law, SB 4 subjects law enforcement officials with criminal, Class A misdemeanor, charges if they do not comply with detainers sent by the U.S. Department of Homeland Security. (Id.) Additionally, localities or colleges who defiantly impose sanctuary policies may be subject to pay a fine, between $1,000 and $25,500 per day the policy is in place. (Id.)

Governor Abbott has consistently taken strong positions on immigration enforcement since taking office and made passing state-wide anti-sanctuary legislation a legislative priority for 2017. (FAIR Legislative Update, Jan. 10, 2017; FAIR Legislative Update, Feb. 7, 2017) “As governor, my top priority is public safety, and this bill furthers that objective by keeping dangerous criminals off our streets,” Abbott said. (Reuters, May 8, 2017)

Texas has been on the front lines of the illegal immigration surge that expanded during the Obama Administration. (FAIR Legislative Update, July 5, 2017) Former President Obama’s lax enforcement policies encouraged record numbers of illegal alien minors and families from Central America to cross the southern border into Texas over recent years. (Id.) As a result, Texas taxpayers have fronted billions in costs associated illegal immigration, particularly with regard to law enforcement, education, and public benefits spending. (Id.)