Legislative Update: 9/15/2015
Obama Administration Plans to Admit 10,000 Syrian Refugees; Taxpayers to Foot the Bill
As European nations struggle to handle the estimated 4 million Syrians who are seeking to escape the violence in the region, the Obama administration announced Thursday that the U.S. will admit at least 10,000 of them as refugees in the next fiscal year. (New York Times, Sept. 10, 2015) This number reflects a significant increase compared to the current fiscal year (which ends September 30) where the U.S. admitted approximately 1,500 Syrian refugees. (Id.)
Although the decision has received much criticism in Congress, our immigration laws grant the President broad authority for determining the number of refugees the U.S. admits each year. Immigration and Nationality Act Section 207 states that the number of refugees admitted per fiscal year “shall be such number as the President determines…” (INA § 207(a)(2)) There are only a few limitations imposed on this authority: (1) the number must be determined before a fiscal year begins; (2) the President must receive “appropriate consultation;” and (3) the number is “justified by humanitarian concerns or is otherwise in the national interest.” (Id.) Further underscoring the Executive Branch’s authority with respect to refugees, INA Section 207 also authorizes the President to temporarily admit (no more than 12 months) more refugees than permitted by the cap if “an unforeseen emergency refugee situation exists.” (INA § 207(b))
Importantly, our laws give refugees special treatment compared to other aliens that allows them to immediately access taxpayer funded benefits. First, the ground for inadmissibility that an alien not be a public charge (i.e., depend on public assistance) is waived when determining eligibility for refugee status. (Id. at § 207(c)(3); INA § 212(a)(4)) Additionally, refugees are not subject to limitations on accessing federal benefits programs. In 1996, Congress attempted to restrict alien eligibility for benefits programs through the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). Through PRWORA, an alien must be a “qualified alien” to receive “federal public benefits.” (8 U.S.C. § 1611) Refugees fall within the statutory definition of “qualified alien,” making them eligible for “federal public benefits.” (8 U.S.C. § 1641(b)(3)) Similarly, qualified aliens must generally wait five years before they are eligible for any “Federal means-tested public benefit.” (8 U.S.C. § 1613) However, refugees are statutorily exempt from the five year waiting period meaning they are immediately eligible for “Federal means-tested public benefits.” (Id. at § 1613(b)(1)(A))
Underscoring the significance of greatly increasing the number of Syrian refugees, official data shows that nearly all refugees from the Middle East rely on at least one taxpayer funded benefits program. Indeed, a Fiscal Year 2013 Office of Refugee Resettlement chart recently released by true immigration reformer Sen. Jeff Sessions (R-AL) shows that, between 2008 and 2013, 91.4 percent of Middle Eastern refugees use food stamps. (Sessions News Release, Sept. 10, 2015) Additionally, the chart shows that an overwhelming majority rely on Medicaid (73.1 percent) and cash welfare (68.3 percent). (Id.) Finally, the chart shows that 36.7 percent use TANF, 32.1 percent use Supplemental Security Income, 19.7 percent access public housing, 17.3 percent use general assistance programs, and 10.9 percent rely on Refugee Cash Assistance. (Id.)
DOL Closes Infosys Investigation: Replacing Americans with Cheaper Foreigners is Legal
Last Tuesday, Infosys Ltd announced that the Department of Labor (DOL) had closed its investigation into whether the company had broken the law when Southern California Edison laid off about 500 American technology workers and replaced them with H-1B visa holders from the Indian software exporters TCS and Infosys. (Reuters, Sept. 8, 2015; The Economic Times, Sept. 8, 2015) The investigation was spurred by an April bipartisan letter from 10 Senators calling for the Obama administration to look into potential wrongdoing. (The Hill, Apr. 9, 2015; see Senators’ Letter, Apr. 9, 2015). However, the Labor Department cleared Infosys of all wrongdoing because the H-1B program is statutorily written in a way that allows employers to legally replace Americans with cheaper foreign workers. (Reuters, Sept. 8, 2015; The Economic Times, Sept. 8, 2015)
Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers, purported on a “temporary” basis, 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)(H)(15)) The law was written to appear to provide protections for American workers by requiring companies to pay H-1B workers the “prevailing wage” for their job and not adversely affect the working conditions of American workers “similarly employed.” (See INA Section 212 (n)(1) (emphasis added); see also Informationweek.com, Nov. 20, 2013; Wall Street Journal, Feb. 1, 2011; analysis by John Miano, July 1, 2015)
However, these protections are misleading because of the way Congress defined the “prevailing wage.” According to the statute, the “prevailing wage” is calculated using a governmental survey that provides “at least four levels of wages commensurate with experience, education, and the level of supervision.” (INA § 212(p)(4)) This language allows the employer to determine the prevailing wage based on the position description rather than the H-1B worker’s actual skill level. Therefore, employers can legally replace Americans with cheaper foreign workers by claiming that the H-1B position is different than the displaced American worker’s (regardless of actual job responsibilities) and not in violation of the “similarly employed” provision.
Arizona Immigration Reform Law Largely Upheld by Court
Last week, the United States District Court for the District of Arizona upheld two key provisions in the remainder of Arizona’s “The Support Our Law Enforcement and Safe Neighborhoods Act,” otherwise known as Senate Bill (“S.B.”) 1070. (Reuters, Sept. 5, 2015; District Court Opinion, Sept. 4, 2015) S.B. 1070 gained national attention when it passed the state legislature in 2010 as one of the most thorough immigration enforcement reform laws in the country.
The court upheld Section 2(B) and Section 2(D) of the law, rejecting claims that the law is discriminatory towards Hispanic people. (District Court Opinion, Sept. 4, 2015) The court found that Section 2(B), which requires law enforcement to make a “reasonable attempt…to determine the immigration status” of any person they stop, detain, or arrest if “reasonable suspicion exists” that the person is an illegal alien was not discriminatory nor preempted by federal law. (Id.) The court ruled that plaintiffs failed to show that the law would be enforced differently for Hispanic people than people of other races.The court also found Section 2(D), which authorizes state law enforcement to transport illegal aliens to federal facilities, to be constitutional and not preempted by federal law. (Id.)The court, however, struck down Section 5 of the law, which made it unlawful for employers to hire day labors on the side of a street, on the basis that the provision violates the First Amendment. (Id.)
Arizona enacted S.B. 1070 “to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” (S.B. 1070) In passing S.B. 1070, the legislature found that there is “a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.” (Id.)The legislature also declared that the intent of the law is “to make attrition through enforcement the public policy of all state and local government agencies in Arizona.” (Id.)
Next GOP Presidential Debate Tomorrow Night
Tomorrow night, CNN will host the second debate between the 2016 Republican presidential candidates. Like the previous one run by Fox News, Wednesday’s debate will be divided into a primetime debate at 8 p.m. that is preceded by a 6 p.m. debate with the second-tier candidates. The primetime debate features the top 11 candidates based on CNN’s polling average: businessman Donald Trump, former Florida Gov. Jeb Bush, Wisconsin Gov. Scott Walker, surgeon Ben Carson, Texas Sen. Ted Cruz, Florida Sen. Marco Rubio, former Arkansas Gov. Mike Huckabee, Kentucky Sen. Rand Paul, Ohio Gov. John Kasich, New Jersey Gov. Chris Christie, and businesswoman Carly Fiorina (who did not appear in the Fox News primetime debate). (CNN.com, Sept. 12, 2015) The “undercard” debate includes: Louisiana Gov. Bobby Jindal, former Pennsylvania Sen. Rick Santorum, former New York Gov. George Pataki, and South Carolina Sen. Lindsey Graham. (Id.) Former Virginia Gov. Jim Gilmore — who appeared in the Fox News undercard debate — did not qualify for the CNN debate because of low polling. (Id.)
During the Fox News debate, several candidates were asked immigration questions in the first hour but then the issue was not brought up later. (See FAIR Legislative Update, Aug. 11, 2015) With recent polls showing that voters view immigration as one of the top issues of 2016, FAIR hopes that CNN’s moderators will devote more time to questioning all candidates on their immigration positions. Indeed, a new Rasmussen poll found that 80 percent of registered voters view illegal immigration as a serious problem. (Rasmussen Reports, Sept. 1, 2015) Additionally, the latest Gallup poll shows that 20 percent of registered voters will only vote for a candidate whose immigration position aligns with theirs while 60 percent said it is one of many “important considerations.” (Gallup Poll, Sept. 9, 2015)
The debate can be viewed on CNN or streamed at CNN.com.