Legislative Update: 7/18/2017

Activist Judge Strikes Back: Interferes with Travel Freeze Again

By: Robert Law

Federal Judge Derrick Watson of Hawaii is once again preventing the Trump administration from implementing the temporary travel freeze, even after the Supreme Court unanimously gave the president the green light to partially go ahead. Last month, the high court reversed several activist judges, ruling that the Trump administration may impose a travel freeze on foreign nationals who “lack any bona fide relationship with a person or entity” in the U.S. (See FAIR Legislative Update, June 27, 2017) That Supreme Court ruling was a direct rebuke of Judge Watson’s blatant judicial activism in March where he imposed a nationwide injunction to prevent the Trump administration from implementing any part of the travel freeze despite the clear legal authority to do so. (See FAIR Legislative Update, Mar. 21, 2017)

Undeterred, Judge Watson issued a new ruling to prevent the Trump administration from moving forward with the temporary travel freeze. In response to the Supreme Court ruling, the State Department issued guidance that “close family” does not include grandparents, grandchildren, uncles, aunts, nephews, nieces, sisters-in-law, brothers-in-law or “any other ‘extended family members.’” (See Law360, July 14, 2017) The State of Hawaii sued again, claiming that the Trump administration’s definition of “close family” is too narrow. Predictably, Judge Watson agreed, ruling that, “The government’s narrowly defined list finds no support in the careful language of the Supreme Court or even in the immigration statutes on which the government relies.” (Id.)

The Trump administration quickly appealed. “The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation,” said Attorney General Jeff Sessions in a statement. (Id.) However, the timing of a Supreme Court hearing on the issue is unclear since the high court is currently on its summer recess.

Stay tuned to FAIR and IRLI as details emerge…

Trump Administration Ignores Blue Collar Americans, Adds 15,000 H-2B Visas

By: RJ Hauman

The Trump administration has decided to issue 15,000 additional H-2B foreign worker visas through the end of September, the Department of Homeland Security (DHS) announced yesterday. (DHS Press Release, July 17, 2017) The decision contradicts a key Trump campaign promise—protecting the most vulnerable American workers from foreign competition. (Id.) “Congress gave me the opportunity to provide temporary relief to American businesses in danger of suffering irreparable harm due to a lack of available temporary workers,” said Homeland Secretary John Kelly in a statement. (Id.) “As a demonstration of the Administration’s commitment to supporting American businesses, DHS is providing this one-time increase to the congressionally set annual cap.” (Id.) According to DHS eligibility requirements, the visa increase will not be limited to specific industries, but rather to employers who claim they will suffer “irreparable harm” without additional H-2B visas. However, no evidence is required to verify this claim.

In early May, at the behest of the business lobby, 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) Shortly after, Kelly indicated that he was receiving pressure from lawmakers and stakeholders on both sides of the issue, but hinted an increase was likely. (See FAIR Legislative Update, May 30, 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 at the time. (Id.) Then, in a brazen move to force Kelly’s hand, Sen. Thom Tillis (R-NC) put a “hold” on Lee Francis Cissna, President Trump’s nominee for director of U.S. Citizenship and Immigration Services (USCIS). (Washington Times, July 10, 2017) It remains to be seen whether Kelly’s modest H-2B increase satisfies Sen. Tillis’s insatiable desire for cheap foreign labor, or if he will continue blocking the qualified nominee to extort more H-2B visas for the next fiscal year, beginning on October 1.

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, May’s $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 inserted 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. However, it is estimated that this provision gave Kelly the authority to add up around 70,000 additional foreign workers to the labor market through the end of September.

FAIR previously warned the administration against increasing the number of low-skilled guest workers when Secretary Kelly first announced he was inclined to do so. “The administration’s decision to exceed the 66,000 cap not only undermines struggling American workers, but betrays unequivocal promises President Trump made in his campaign,” FAIR President Dan Stein charged at the time. (FAIR Press Release, June 22, 2017)  “In President Trump’s own words, ‘the influx of foreign workers holds down salaries, keeps unemployment high, and makes it difficult for poor and working class Americans—including immigrants themselves and their children—to earn a middle class wage,’” Stein added. (Id.)

FAIR’s June 21 letter to Secretary Kelly urging against any H-2B visa increase can also be found here.

DACA Demise Possible In September

By: Shari Rendall

On July 12, in a closed-door meeting with the Congressional Hispanic Caucus, Secretary of Homeland Security John Kelly told the representatives that President Obama’s Deferred Action for Childhood Arrivals (DACA) amnesty might end soon. (Breitbart, July 12, 2017) According to Secretary Kelly, lawyers advised him that DACA would not survive legal challenges. (Id.)

The Hill meeting came on the heels of a letter sent from state officials to Attorney General Jeff Sessions urging the administration to rescind DACA. (See Letter, June 29, 2017) Ten states, led by Texas Attorney General (AG) Ken Paxton, gave the administration until September 5 to agree to phase out DACA or they will amend their lawsuit on the expansion of DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) to include the original DACA program. (Id.)

Shortly after the American people rejected President Obama’s anti-enforcement agenda during the 2014 elections, then-DHS Secretary Jeh Johnson issued a series of memos on November 20, 2014 that expanded DACA and created DAPA. (See FAIR Legislative Update, June 20, 2017) However, the Obama administration did not have the opportunity to implement the expanded DACA and DAPA programs because in 2015, Federal District Judge Andrew Hanen stopped it in its tracks. Hanen issued a nationwide injunction blocking the unconstitutional amnesty programs after Texas and 25 other states sued. (See FAIR Legislative Update, Feb. 18, 2015) Despite the Trump administration rescinding DAPA, the lawsuit initiated by Texas and the 25 other states is still pending. (See FAIR Legislative Update, June 28, 2016) With a split 4-4 decision, the Supreme Court upheld the injunction and sent the case back to Judge Hanen for litigation on the merits. (Id.)

The 10-state coalition’s letter says that DACA raises the same legal questions as the expanded DACA and DAPA amnesties. The letter notes the “same reasons that DAPA and expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 2012 DACA memorandum is also unlawful.” (See Letter, June 29, 2017) “Just like DAPA, DACA unilaterally confers eligibility for work authorization and lawful presence without any statutory authorization from Congress,” they add. (Id.)

The administration’s failure to end DACA immediately as promised is disappointing. While Secretary Kelly has rescinded the expanded DACA and DAPA amnesties, U.S. Citizenship and Immigration Services (USCIS) continues to the DACA grant amnesty to illegal aliens for the first time and renew the amnesty for DACA recipients.  Based on the legal advice Secretary Kelly received, the 10-state coalition letter could finally serve as an impetus for the administration to stop Obama’s unconstitutional amnesties.

House Spending Bill Allocates $1.6 Billion for Border Wall

By: RJ Hauman

A must-pass Homeland Security funding bill released by House Republican appropriators last week includes the full $1.6 billion requested by the Trump administration for Fiscal Year 2018 to begin construction on a southern border wall. (Appropriations Committee Press Release, July 11, 2017) In total, the $44.3 billion measure allocates $13.8 billion to Customs and Border Protection (CBP). That includes the $1.6 billion for the wall, $100 million to hire 500 additional Border Patrol agents, $131 million for new border technology, $106 million for aircraft and sensors, and $109 million for “non-intrusive inspection equipment.” (Id.) The bill also provides $7 billion for Immigration and Customs Enforcement (ICE), a $619.7 million increase over current levels. (Id.)

House Appropriations Homeland Security Subcommittee Chairman John Carter (R-TX) lauded the bill as a critical investment in border security and immigration enforcement. (Id.) “Keeping Americans safe by protecting our homeland is a top priority. This funding bill provides the resources to begin building a wall along our southern border, enhance our existing border security infrastructure, hire more border patrol agents, and fund detention operations,” Chairman Carter said. (Id.) “Additionally, this bill will increase funding for Immigration and Customs Enforcement.” (Id.)

While this spending bill or an omnibus with identical provisions will likely pass the House, Senate Democrats have already signaled that they will oppose any spending bill that includes funding for a border wall and increased immigration enforcement. “We are once again concerned with the President’s Fiscal Year 2018 request for a very expensive, ineffective new wall along the southern border with Mexico and new funding for the Department of Homeland Security to hire a ‘deportation force’ and increase detention beds,” wrote Senate Democratic leaders to their GOP counterparts, setting the stage for a shutdown fight this fall. (Senate Democratic Leadership Letter, June 26, 2017)

The bill will be marked up (amended) by the full House Appropriations Committee today. More information on the markup can be found here.

Trump’s DHS Blocks Obama Program Intended to Circumvent H-1B and EB-5 Laws

By: Robert Law

Last Tuesday, the Trump administration put former President Obama’s policy of offering humanitarian parole to foreign entrepreneurs on hold. (Washington Times, July 10, 2017) The Department of Homeland Security announced the delay just one week before the new policy was to take effect, stating that the delay would allow DHS an opportunity to obtain comments from the public regarding the new proposal. (Id.)

Humanitarian parole allows DHS to admit an alien into the United States temporarily “due to a compelling emergency.” (8 U.S.C. 1182(d)(5)) Traditionally, humanitarian parole is a rarely used type of relief issued on a case-by-case basis and was not intended to be a vehicle for admission for long-term residence. Because humanitarian parole is only intended as a temporary emergency measure, the Immigration and Nationality Act (INA) requires that a paroled alien return to his or her home country after the emergency has ceased. (Id.)

Former President Obama, however, extended the use of parole repeatedly during his time in office as a means to implement his mass immigration agenda. The entrepreneur program, specifically, provided humanitarian parole to aliens willing to start or invest in startup companies in the United States. By offering humanitarian parole to foreign businesspeople, the government could offer legal status and work authorization to aliens who are otherwise ineligible for admission into the United States. President Obama’s use of parole was unprecedented and conflicts sharply with Congress’ intent for its creation.

DHS’s announcement is a result of President Trump’s January 25 executive order. The order instructs the DHS Secretary to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.” (DHS Notice, July 11, 2017)

DHS noted that the program would be put on hold until March 14, 2018, but the department may decide cancel the program completely. “Those resources are otherwise needed for USCIS to effectively and efficiently carry out its many existing immigration benefit programs facilitating lawful migration into United States,” a spokesperson from DHS said. (Washington Times, July 10, 2017)