Legislative Update: 6/21/2016
House Refuses to Prevent Illegal Aliens from Enlisting in the Military and Gaining Citizenship
Last Thursday, thirty House Republicans joined with Democrats to defeat two amendments to the FY 2017 Department of Defense (DoD) Appropriations Act that would have blocked illegal alien beneficiaries of President Obama’s unlegislated amnesty program, Deferred Action for Childhood Arrivals (DACA), from enlisting in the military. (The Hill, June 16, 2016) The FAIR-supported amendments, offered by Reps. Paul Gosar (R-AZ) and Steve King (R-IA), were defeated by the narrowest of margins, 210-211 and 207-214 respectively. (Roll Call Vote 317; Roll Call Vote 318)
Despite Federal law prohibiting illegal aliens from enlisting in the U.S. military, the DoD issued a memo in 2014 unilaterally declaring certain illegal aliens eligible to enlist in the armed forces. (See 10 U.S.C. § 504(b)(1); FAIR Legislative Update, Sept. 30, 2014) The memo, which is less than a page long, simply declared that DACA beneficiaries are now eligible to enlist through a program called Military Accessions Vital to National Interest (MAVNI). MAVNI was launched by the Bush administration as a limited program to allow legal nonimmigrants with health care backgrounds or certain language skills to fight in the War on Terror. This narrow program making legal nonimmigrants eligible to enlist is authorized by statute. (See 10 U.S.C. § 504(b)(2)) However, in complete disregard to the letter and the spirit of the law, President Obama opened up MAVNI to illegal aliens. As a result, DACA illegal aliens who join the military through MAVNI are able to immediately receive U.S. citizenship, bypassing the green card process entirely. In most cases, participants become naturalized U.S. citizens by the time they graduate from basic training or accept a commission as an officer.
The Gosar and King amendments, which were nearly identical, would have explicitly prohibited funds from being used to extend or reissue the unconstitutional memo that made DACA illegal aliens eligible for the MAVNI program. (See Gosar Amendment No. 26; King Amendment No. 27) Because these amendments were defeated, the Obama administration will continue to enlist DACA illegal aliens and reduce military opportunities for American citizens and lawful immigrants who wish to serve during a time of unprecedented force reductions. (See FAIR Military Amnesty Policy Statement)
FAIR President Dan Stein blasted last Thursday’s actions as a betrayal of the American people. “In defeating the Gosar and King amendments, Republicans have once again betrayed the voters who sent them to Washington to serve as a bulwark against President Obama’s abuse of executive authority, particularly in the area of immigration,” charged Stein. (FAIR Press Release, June 16, 2016) “Many of the same Washington Republicans who have called DACA and other executive amnesty programs unconstitutional have now voted to allow the illegal aliens who benefit from these unlegislated amnesties to enlist in the military and get on a fast track to citizenship.” (Id.)
Fortunately, the House did adopt another FAIR-supported amendment introduced by Rep. King that blocks unaccompanied alien minors (UAMs) from being housed on military installations. (See King Amendment No. 25; Roll Call Vote 316) In doing so, the House sends a clear message that the Obama administration needs to take steps to stop the surge of UAMs from crossing the border rather than looking for places to house them in the country.
After voting on these amendments and many others, the House passed the massive $575.7 billion defense spending bill, 282-138. (Roll Call Vote 332) It now heads to the Senate for consideration.
Senator Grassley Investigates Visa Abuse
A recent worksite accident at a Tesla Motors plant in California exposed that companies are exploiting the B- visa to unlawfully bring in cheap foreign labor rather than hire Americans. In May 2015, Gregor Lesnik, an unemployed Slovenian electrician, was seriously injured when he plunged nearly three stories breaking both legs and ribs, tearing cartilage in his knee and suffering head injuries and a concussion. (Mercury News, May 15, 2016) Mr. Lesnik is now suing Tesla and the contractor company that secured his visa. (Id.)
The details from Mr. Lesnik’s lawsuit reveal that he never should have been working in the Fremont, California Tesla plant. According to Mr. Lesnik, he was given a B- visa to oversee American workers build a new high-tech paint shop at a South Carolina facility despite having no qualifications to supervise and his speaking limited English. (Id.) Instead, he alleges that he and 140 other Eastern European men earned about $5 per hour for construction work installing pipes and welding parts at the California plant in clear violation of their visas. (Id.) None of the companies involved have accepted responsibility for the unlawful hiring practices and Tesla claimed it pays its foreign workers $55 per hour. (See Mercury News, May 18, 2016)
In response, Sen. Chuck Grassley (R-IA), who chairs the Judiciary Committee, is demanding answers from the Obama administration about the visa abuse. In a letter to the Attorney General and the Secretaries of Homeland Security, State, and Labor, Grassley instructs the administration officials to look into companies exploiting our immigration system by bypassing worker visas to bring in foreign labor. “The manner in which the B visa program is being used and the absence of real oversight and enforcement is a shame. Despite a long and undeniable history of abuse of the program to bring foreign workers into the United States under cover as ‘business visitors,’ regulations and field governance governing the program have not been updated in years,” Grassley wrote. (Grassley Letter, June 7, 2016)
Specifically, it appears that companies are unlawfully bringing in foreign workers through the B- visa rather than obtaining H-1B visas. The B- visa allows nonimmigrants to come into the country temporarily for business or pleasure, but explicitly prohibits “performing skilled or unskilled labor.” (INA § 101(a)(15)(B)) By comparison, the H-1B visa is for foreign workers in “specialty occupations” but is capped at 65,000 per year and includes certain wage and labor protections. (INA § 101(a)(15)(H)(i)(b); INA § 212(n)) It is clear that Mr. Lesnik required an H-1B visa to lawfully perform the work he did at the California Tesla plant.
Unsurprisingly, this is not the first time Chairman Grassley has demanded answers from the Obama administration regarding abuse of B- visas. (See Senator Chuck Grassley Letter, June 7, 2016) In a 2011 letter Grassley sent to then-Secretary of State Hillary Clinton and then-DHS Secretary Janet Napolitano, he also asked them to respond to allegations of abuse by Infosys. (Id.) In 2013, Infosys paid a record $34 million to settle allegations the company abused the B- visa program. (Id.) In addition to the Lesnik story, Senator Grassley also highlighted the Filipino workers who came to the U.S. on B visas to work for Bitmicro and were paid $1.66 per hour, far below the $7.25 minimum wage. (Id.)
The apparent systemic abuse of the B- visa program is just the latest example of companies cutting corners to favor cheap foreign labor at the expense of qualified American workers. In response, the Obama administration should take steps to increase the scrutiny of the visa applications it processes. Additionally, Congress should immediately pass mandatory E-Verify legislation to ensure a lawful workforce.
The Baldwin, Alabama County Commission took a stand against the federal government’s plans to house hundreds of unaccompanied alien minors (UAMs) in their county during a teleconference with the Obama administration last week. (Alabama.com, June 14, 2016) Local officials condemned the federal government’s intention to utilize naval fields near Silverhill and Orange Beach as resettlement facilities for predominantly Central American minors who crossed the border illegally in recent months. (Id.)
Following its teleconference with the federal government, the Baldwin County Commission held a meeting with approximately 250 county residents who had listened in on the conversation. (Id.)County residents voiced their concerns and nearly unanimously opposed the Obama administration’s plans. (Id.) “Our federal government pushes and bullies its way around,” commented Mile Luna of Gulf Shores. (Id.)”It’s highly probable that this is more political than practical,” added Baldwin County Commissioner Chris Elliott. (Daily Caller, June 14, 2016)
According to data collected by the U.S. Customs and Border Patrol, federal agents apprehended 32,952 illegal alien minors from October 2015 to April 2016. (See CBP Apprehension Statistics) The statistics, released in May, show that 5,219 UAMs were apprehended crossing the southwest border in April, nearly double the number recorded in April 2015. (Id.) Additionally, some 5,616 family units were apprehended during the same time period — also nearly double the number from April 2015. (Id.) UAM apprehensions for this fiscal year are expected to substantially eclipse the 2014 total of 39,970. (FAIR Legislative Update, May 31, 2016)
Resettling UAMs into American communities comes at a high price to local taxpayers. Last week, the Federation for American Immigration Reform (FAIR), reported its estimate that the 110,605 UAMs who have been apprehended since 2014 will cost state and local taxpayers at least $1.5 billion a year in education costs. (ImmigrationReform.com, June 14, 2016) Decisions by the U.S. Supreme Court guarantee illegal alien minors a taxpayer-funded education. (Plyler v. Doe, 457 U.S. 202 (1982)) These costs come in addition to expenses taxpayers pay for housing, food, and health and law enforcement services. Alabama taxpayers already pay $298 million annually to subsidize illegal immigration in their state. (FAIR Cost Study, 2011)
Alabama Senator Jeff Sessions commented on the County’s refusal to house UAMs. (Daily Caller, June 14, 2016) “Our governor has spoken clearly on this. He opposes this. We don’t need to be spending all this money to carry out this twisted agenda under this administration, so I do oppose it, and we’ll see what happens but basically it will be up to the governor. I’ll be reviewing and see what action I might take,” he said. (Id.) The Obama Administration has yet to announce whether it will follow through with its plan to resettle UAMs in Baldwin County.
Stay tuned to FAIR for updates…
Federal District Judge David C. Godbey dismissed Wednesday all of the State of Texas’ claims against the federal government and International Rescue Committee (IRC) in its suit against them over the resettlement of Syrian refugees in the Lone Star State. (ABC News, June 16, 2016) The Texas Health and Human Services Commission filed a lawsuit against the U.S. government last December, including the Departments of State and Health & Human Services, as well as the International Rescue Committee, for allegedly violating federal law by failing to consult with the State regarding the resettlement of Syrian refugees within Texas. (See FAIR Legislative Update, Dec. 8, 2016; see also Complaint, Dec. 2, 2015)
In a setback for those seeking oversight and coordination in the resettlement of refugees around the country, the judge determined that Texas lacked a cause of action under the Refugee Act, the Administrative Procedure Act, and the Declaratory Judgment Act, to enforce the Refugee Act’s advance consultation requirement. Furthermore, the judge declared that Texas also lacked a plausible claim for breach of contract against the IRC for a failure to provide it with information regarding specific refugees.
Generally, federal law calls for consultation between Federal, state, and local governments when it comes to the resettlement of refugees admitted to the United States. Federal law states that the Director of the Office of Refugee Resettlement “shall consult” with state and local governments and voluntary non-profit agencies “concerning the sponsorship process and the intended distribution of refugees among the states and localities before their placement…” (See 8 U.S.C. § 1522(a)(2)(A)) Such consultation is to occur regularly, which is defined as no less than quarterly. (Id.) Accordingly, a plain reading of the Refugee Act suggests that state and local governments should be consulted with and provided an opportunity to provide meaningful input before refugees ever set foot in a community.
Relying on these and other provisions, the State of Texas, through its Health and Human Services Commission, asserted two claims against the defendants, which include both the federal government and IRC. First, Texas sought a declaratory judgment under the Declaratory Judgment Act, arguing that the defendants’ failure to consult in advance with them regarding the resettlement of refugees violates the Refugee Act’s consultation requirement. Second, Texas sought a declaratory judgment under the Administrative Procedure Act, arguing that the defendants’ failure to consult constituted unlawful agency action.
Defendants moved to dismiss both claims, arguing Texas lacks a cause of action to compel advance consultation, and that the Refugee Act does not require the federal government or resettlement agencies to provide the states with particularized information about individual refugees. Remarkably, Judge Godbey agreed with the defendants, determining that the Texas Health and Human Services Commission lacks a cause of action to enforce the Refugee Act’s requirement to consult with states prior to resettling refugees.
Astoundingly, the judge determined that there was simply no way for the states to enforce the consultation requirements in the Refugee Act. In quoting the U.S. Supreme Court, Judge Godbey reasoned that “private rights of action to enforce federal law must be created by Congress” and that Congress failed to include either an express or implied cause of action in the Refugee Act. Therefore, without even addressing whether Texas had stated a plausible violation of the Act itself, Judge Godbey concluded that there was simply not a valid cause of action with which to support judicial review in the first place. Furthermore, the judge dismissed the claim that the defendants’ failure to consult in advance with the states was a failure to take an agency action under the Administrative Procedures Act, asserting that the alleged failure to consult did not actually constitute an agency action.
Texas Attorney General Ken Paxton expressed his disappointment in Judge Godbey’s order in a statement. “I am disappointed with the court’s determination that Texas cannot hold the federal government accountable to consult with us before resettling refugees here,” he said. (Press Release, June 16, 2016) “We are considering our options moving forward to guarantee the safety of Texans from domestic and foreign threats,” he continued.
Texas was the first state to initiate legal action against the federal government in opposition to the Obama Administration’s plan to resettle Syrian refugees and failure to communicate with the states as required by law. The State of Alabama is also pursuing litigation against the Obama Administration’s refugee resettlement plans, while the Tennessee legislature recently passed legislation authorizing the state to proceed with its own lawsuit.