FAIR Legislative Update June 4, 2012
After months of touting a proposal without producing any language, freshman Rep. David Rivera (R-FL) introduced his own version of the DREAM Act last week.
Rep. Rivera’s "Studying Towards Adjusted Residency Act" (STARS) Act, H.R. 5869 — like previous versions of the DREAM Act — grants amnesty to illegal alien minors. (Washington Times, May 30, 2012) H.R. 5869 accomplishes this by first granting "conditional" nonimmigrant status to illegal alien minors up to the age of 19 who have:
- entered the U.S. before the age of 16,
- lived in the U.S. for five years upon enactment,
- attained high school diploma or GED, and
- been accepted to an accredited four-year institution of higher education.
(See H.R. 5869 at § 4) While the STARS Act imposes these requirements, the legislation has no requirements regarding the type of documentation an illegal alien needs to establish eligibility and only requires that the alien establish eligibility by a preponderance of the evidence — the lowest evidentiary standard. (Id.) With such details left to the Department of Homeland Security to administer, fraud is likely.
Once granted the initial five-year conditional nonimmigrant status, an illegal alien is on the path to citizenship. Specifically, under the bill the DHS Secretary shall extend the conditional nonimmigrant status for an additional five –year period if, in addition to the above criteria, the alien graduates from a four-year institution of higher education. (Id. at § 5) Three years after such extension, aliens are then eligible to apply for a green card and citizenship five years thereafter. (Id. at §§ 5-6)
Although proponents of the bill claim it contains strict criteria for eligibility, in reality the legislation contains several loopholes. First, while the bill appears to prohibit the granting of conditional nonimmigrant status to aliens meeting certain grounds of inadmissibility or deportability, it in fact provides the Secretary of the Department of Homeland Security (DHS) the authority to waive most of these (including grounds of inadmissibility or deportability based on student visa abuse and being a public charge). (Id. at § 4) Second, an illegal alien can be convicted of up to two misdemeanors and still be eligible for the amnesty. (Id.) Third, so long as an illegal alien files an application for conditional nonimmigrant status and appears on his or her face to meet the criteria, DHS cannot deport them FOR ANY REASON WHATSOEVER. (Id.) Finally, the bill also counts time spent as a conditional nonimmigrant toward the five-year period green card holders must wait to receive certain taxpayer-funded benefits, thus allowing them to apply for such benefits immediately upon being granted legal permanent residency. (Id. at § 11)
True immigration reformers in the House are already taking a stand against Rep. Rivera’s latest version of the DREAM Act. The day after the bill was introduced, Rep. Steve King (R-IA) released the following statement: "The immigration laws of this country have been ignored by millions of illegal aliens," he said. "I don't believe in rewarding lawbreakers with a path to citizenship…The Rule of Law is a much higher priority." (Rep. King Press Release, May 31, 2012)
Another Florida Republican lawmaker, first-term Sen. Marco Rubio, has also promised to introduce his own version of the DREAM Act this summer. While an aide for Rep. Rivera has stated the Congressman and Sen. Rubio have spoken to one another about their proposals, it is unclear how similar the two are or when Sen. Rubio will decide to introduce his legislation. (The Hill, May 30, 2012)
In an effort to end abuse of U.S. asylum policy by Cuban nationals, Rep. David Rivera (R-FL) has introduced legislation to amend the Cuban Adjustment Act.
Originally passed in 1966, Congress created the Cuban Adjustment Act as a tool to grant asylum to Cuban citizens oppressed by their country’s Communist dictatorship. (See Public Law 89-732) Under this law, Cubans who come to the U.S. are allowed to apply for permanent resident status one year after arrival. (Id.) The provisions granted by the Act can be extended to the asylum-seeker’s spouse and children as well. (Id.) In fact, since 1981, over half a million Cubans have been granted green cards as a result of this policy. (See Congressional Research Service Report, 2009; see also Miami Herald, May 31, 2012)
Several Members of Congress, including Rep. Rivera, argue that Cuban immigrants who come to the U.S. under the pretext of seeking asylum are actually coming to the country to sign up for public benefits, then return to Cuba to spend the money there. (CQToday, May 31, 2012) In other words, they are entering the U.S. for economic opportunity, rather than escaping oppression. (See FAIR Report on Refugee and Asylum Policy Reform, 2010) In addition to the enormous burden this poses to American taxpayers, this abuse also lends financial stability to the Cuban economy, and by extension, the Castro regime. (CQToday, May 31, 2012)
To put an end to this exploitation of U.S. immigration policy, Rep. Rivera’s bill (H.R. 2831) amends the 1966 Cuban Adjustment Act by rescinding "the [permanent resident] status of an alien…if the alien returns to Cuba before being admitted to citizenship." (See H.R. 2831 at § 1)
The House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing on Rep. Rivera’s bill last Thursday. According to Subcommittee Chair Elton Gallegly (R-CA), travel from Cuba to the U.S. "has tripled, with most of the increase coming as a result of travelers taking multiple trips per year. As a result, visiting Cuban-Americans have become one of the Castro regime’s top sources of revenue." (Rep. Gallegly Opening Statement, May 31, 2012)
Rep. Rivera explained the need for his bill at the hearing. "[I]t has become a common occurrence for Cubans to seek political asylum...and after a year and a day immediately and repeatedly travel back to the persecuting country," he stated. (See Rep. Rivera Testimony, May 31, 2012) "Cuban-Americans are citing family reunification to justify travel that in reality more closely resembles common tourism and other unauthorized travel involving everything from plastic surgery…to weddings, to even sex tourism." (Id.) Calling the abuse of the system "outright fraud," Rivera underscored the need to revoke privileges from Cubans who manipulate the system, and protect American taxpayers from abuse of social welfare programs. (Id.)
The House Judiciary Committee has not yet scheduled a mark-up of the bill.
Last week, Senate Judiciary Chairman Pat Leahy (D-VT) and Ranking Member Chuck Grassley (R-IA) introduced legislation that would permanently authorize four immigration programs (S. 3245). The programs include E-Verify, the EB-5 immigrant visa, the "Conrad 30" J-1 program, and the Religious Worker immigrant visa. In the past, Congress has granted all four programs temporary extensions, and all are set to expire at the end of this fiscal year (September 30, 2012).
While true immigration reformers are familiar with the highly effective E-Verify program, the other three programs included in S.3245 are less commonly known. They are also more controversial because of significant deficiencies in oversight and fraud.
The EB-5 immigrant visa program grants nearly 10,000 green cards each year to aliens who invest $500,000 to $1 million in a "new commercial enterprise" that will benefit the U.S. economy and create at least 10 jobs. (INA § 203(b)(5)) While supporters of the program claim this program benefits the U.S. economy, critics have pointed out that the program has in fact only limited effectiveness. For example, in 2005, the GAO found that after 12 years the EB-5 program had only led to $1 billion in investments (instead of the predicted $48 billion) and there was no reliable accounting of jobs created. (See Selling America Short: The Failure of the EB-5 Visa Program, p.1) Moreover, the program measures job creation by counting jobs created both "directly" and "indirectly," making it impossible to accurately calculate whether an investment under the EB-5 program actually creates jobs. (See 8 C.F.R. § 204.6(e))
The Religious Worker immigrant visa program allows aliens who meet certain conditions to obtain green cards to work either as a minister or as a non-minister in a religious organization. (INA § 101(a)(27)(C)) Approximately 10,000 employment-based visas are set aside each year for this program, of which 5,000 are set aside for non-minister immigrants. (INA § 203(b)(4)) The Religious Worker immigrant visa program, however, has been criticized for not requiring organizations to establish need for such immigrant workers and rampant fraud in applications. In 2005, the USCIS Office of Fraud Detection and National Security found the program had a stunning 33 percent fraud rate. (OIG-09-79, July 2009, p.1) Yet some religious institutions insist that the program alleviates an "acute shortage of non‐minister religious workers in the United States." (United States Conference of Catholic Bishops website) While subsequent regulations have helped reduce the fraud, serious doubts remain as to whether the program truly meets a need among religious organizations.
The "Conrad 30" J-1 program allows aliens who are trained as doctors at U.S. universities to stay in the U.S. after their medical training under certain circumstances. (INA § 214(l); USCIS website) Generally, the J-1 program — which allows aliens to train as doctors in the U.S. — requires such doctors return home for at least two years before returning to the U.S. as a nonimmigrant or immigrant. (INA §212(e)) The Conrad 30 J-1 program, however, waives the home residency requirement for doctors who work in certain rural areas. The "30" designation refers to the number of J-1 doctors each state may sponsor for a waiver of the home residency requirement. As a result, not only does the Conrad 30 program displace U.S. doctors, but it also deprives developing countries of much-needed medical care providers (referred to as "brain drain") by waiving the requirement aliens return to their home country. (New York Times, Mar. 7, 2012)
Although S. 3245 was introduced by two powerful, senior members of the Senate, it is unclear at this point whether the legislation will move forward. Some Senators have voiced a preference for a temporary re-authorization of these four programs instead to help ensure that needed reforms will be adopted and implemented. The FY2013 Senate Homeland Security Appropriations bill includes a two-year temporary extension of the four programs, whereas the FY2013 House Homeland Security Appropriations Bill includes a one-year re-authorization of the E-Verify program only. (S. 3216 at § 554; H.R. 5855 at § 548) Stay tuned to FAIR for updates on where these pieces of legislation stand…