FAIR Legislative Update March 12, 2012
Senators Chuck Schumer (D-NY) and Scott Brown (R-MA) continue to push legislation granting an additional 10,500 work visas to Irish nationals in hopes of passing it in time for St. Patrick's Day, March 17. Sources say that at least one of them is claiming to have the filibuster proof majority necessary to pass the legislation in the Senate. The legislation could appear on the Senate floor in one of two forms: (1) an amended version of S. 1983, introduced by Sen. Schumer; or (2) S. 2005, introduced by Sen. Brown. Unlike some of Sen. Schumer's proposals, Sen. Brown's bill does not include an amnesty for illegal aliens of Irish nationality. Nonetheless, both pieces of legislation have the effect of expanding the E-3 visa program to admit at least 10,500 Irish guest workers annually, PLUS an unlimited number of visas for spouses and children of E-3 visa holders.
Congress created the E-3 visa program under the 2005 REAL ID Act. It is exclusively for Australian nationals who seek a nonimmigrant visa to come to the U.S. to work in a "specialty occupation." (See Pub. L. No. 109-13 § 501(a)) The current annual cap for E-3 visas is 10,500, and there is no cap on the number of derivative visas handed out to the spouses and children (up to age 21) of E-3 visa holders. (INA § 214(g)(11)) While touted by some as a visa for "high-skilled" workers, the threshold for qualifying for it is low. Federal regulations define "specialty occupation" to require only a Bachelor's degree — or its equivalent — in a broad variety of fields ranging from architecture and the social sciences to accounting. (8 C.F.R. 214.2(h)(4)(ii))
Both the amended version of S. 1983 and S. 2005 would allow an additional 10,500 E-3 guest worker visas to be given solely to Irish nationals. (INA § 101(a)(15)(E)(iii); INA § 214(g)(11)) However, rather than holding Irish nationals to the same "specialty occupation" standard as the Australians, these bills would lower the skill standard even further by only requiring Irish recipients of the E-3 visa to have just two years of work experience in a particular field, OR to have obtained a high school diploma or its equivalent.
Overall, S. 1983 as amended and S. 2005 represent poor immigration policy on several levels. Admitting an additional 10,500 individuals into the country (even more with an unlimited number of spouses and children) would increase immigration — and competition for scarce jobs — at a time when there are already 13 million unemployed Americans seeking work. Further exacerbating this problem, the bill lacks a requirement that employers seek legal U.S. workers before they can hire an E-3 visa holder and lowers the skill-set required to gain entry into the country. Finally, these bills carve out a special rule for members of a single nationality, creating a slippery slope in which representatives from every country around the world will seek similar preferential treatment.
Last week, Immigration and Customs Enforcement (ICE) Director John Morton told Congress that his agency's review of 300,000 pending deportation cases is already half complete. Morton delivered that news to the Homeland Security Appropriations Subcommittee last week during a discussion of ICE's proposed FY 2013 budget. Morton also told the Subcommittee that ICE had only closed a mere 1,500 deportation cases pursuant to that review.
The review of pending deportation cases is part of the Administration's back-door amnesty program announced by Homeland Security Secretary Napolitano in August 2011. (See Napolitano letter , Aug. 18, 2011) Since that announcement, ICE has issued guidelines to its agents on which cases deserve to be administratively closed and which cases are enforcement priorities. ICE began the deportation review through two pilot programs it launched in Baltimore and Denver last December. (For more on these guidelines and priorities, see FAIR's webpage on the Morton Memos.)
However, the announcement that the deportation review is already half complete signals ICE is moving at a rapid pace to dispose of such cases. To have reviewed 150,000 cases by now would mean that ICE agents would have had to review and decide approximately 2,500 cases per work day since the pilot program started December 5, 2011. Morton's testimony that his agency had only closed 1,500 is also highly questionable, as data ICE released after the conclusion of the Baltimore and Denver Pilot programs showed that those programs alone generated over 1,600 removals (See, e.g. FAIR Legislative Update, Jan. 23, 2012; Bloomberg Businessweek, Jan. 19, 2012) Morton, however, stated that ICE was keeping detailed statistics on the administrative amnesty program and promised to share them with Congress.
Also during the Homeland Security Appropriations hearing, Morton touched on Cook County's sanctuary ordinance that orders its jails to ignore ICE detainers. (See FAIR Legislative Update, Mar. 6, 2012) He emphasized the serious impact the Cook County ordinance was having on immigration enforcement, due to the size of Cook County's jail system and that it houses thousands of aliens every year. When Subcommittee Chairman Robert Aderholt (R-AL) asked him whether the government planned to sue Cook County to ensure cooperation, Morton responded that he was hoping to achieve his goals short of litigation.
Before a packed hearing room, Homeland Security (DHS) Principal Deputy Coordinator for Counterterrorism John Cohen testified to the House Subcommittee on Border and Maritime Security that DHS would soon be presenting its plan to implement a biometric exit system in the coming weeks. The system, which Congress required to be a component of the US-VISIT program, would allow the government to determine whether foreign nationals exit the U.S. upon expiration of their visas. (FAIR Website on US-VISIT, Oct. 2011)
DHS has already been collecting biometric data when visitors enter the U.S. by collecting digital fingerprints, but continues to protest that an exit component is too expensive and technologically challenging to be feasible. (Homeland Security Today, Mar. 7, 2012; see also FAIR Website on US-VISIT, Oct. 2011)
Subcommittee Chairman Candice Miller (R-MI) opened her hearing with the stark reminder that in 1996, Congress mandated such a biometric screening system with both an entry and exit component. Yet, a decade and a half later, DHS is still only gathering biometric data upon entry, but not upon exit. (Bloomberg Government Transcript, Mar. 6, 2012) "Four of the 9/11 hijackers…had overstayed visas," Chairman Miller said. (Id.) This was "a missed opportunity to prevent the attacks which caused the deaths of nearly 3,000 people," she continued. (Id.)
Mr. Cohen's testimony, however, indicated that is soon to change. He confirmed that it was the intention of DHS to present a biometric exit program plan to Congress within the next thirty days. (Bloomberg Government Transcript, Mar. 6, 2012) "The department is finalizing its plan for a comprehensive biometric entry/exit system," Mr. Cohen testified. (Id.)
His testimony came as a surprise given the Department's continued push for an "enhanced biographic" exit system (as opposed to the required biometric system). In recent months, Homeland Security Secretary Janet Napolitano has testified before both House and Senate committees that she feels a biometric system is too expensive to be feasible. She told Congress it would need to appropriate "billions" of dollars to get it up and running. (Senate Judiciary Committee hearing on DHS, Oct. 19, 2011; see also House Judiciary Committee hearing on DHS, Oct. 26, 2011)
Additional testimony from Mr. Cohen suggests that even if DHS were to proceed with a biometric plan, aliens identified by the program would nonetheless benefit from the Administration's "priorities" and other backdoor amnesty initiatives. In particular, Mr. Cohen suggested that DHS would only pursue overstayers if they go on to commit a crime. DHS will be better able to "provide [overstay] information to law enforcement systems so upon next encounter, their overstay status will be identified," he stated. (Id.)
Alarmingly, there is evidence that prosecutorial discretion in overstay cases is already taking place. Last year, ICE agents reviewed a backlog of roughly 1.6 million overstay cases involving individuals who came to the U.S. since 2004. (FOX News, Mar. 6, 2012) DHS officials said the review concluded that about half had either left the country or applied to adjust their immigration status. Strikingly, DHS officials reported they took no action on over 797,000 cases, merely noting the aliens' overstay status in electronic files in case any of them commit crimes or otherwise become an ICE priority in the future. (Id.)
To ignore visa overstayers not only undermines the rule of law, but jeopardizes national security. Chairman Miller made the key point, "How many more visa overstayers are out there right now who pose a serious threat to the security of our homeland?... It's clear that Administrative Amnesty could result in deferring action for some illegals" who could go on to commit more serious crimes or even a terrorist attack. (Bloomberg Government Transcript, Mar. 6, 2012)
Roughly 30 to 40 percent, or up to 5.5 million of the current illegal alien population, are estimated to have overstayed their visa. (See FAIR Website, Oct. 2011) Just last month, the FBI arrested an illegal alien carrying a gun and wearing what he believed was a suicide vest filled with explosives that would enable him to blow up the U.S. Capitol. (Associated Press, Feb. 19, 2012) According to the FBI affidavit, the suspect, Amine El Khalifi was an alien of Moroccan descent who entered the United States at the age of 16 and overstayed his visitor's visa for over 12 years. (Id.; See also The Washington Post, Feb. 17, 2012)
The U.S. Court of Appeals for the 11th Circuit enjoined two additional sections of Alabama's immigration enforcement law, HB 56, from taking effect. (See FAIR Legislative Update, June 6, 2012) The case was on appeal from a U.S. District Court in Alabama, which upheld majority of the law's provisions, including a key provision requiring local law enforcement to make a reasonable attempt to check immigration status during a lawful stop when there is reasonable suspicion the individual is an illegal alien. (FAIR Legislative Update, Oct. 3, 2011)
The Sections enjoined by the 11th Circuit in the March 8 Order are sections 27 and 30. Section 27 prohibits Alabama State courts from enforcing contracts between an illegal alien and any party if that party knew the alien was in the country illegally. Section 30 makes it a felony for illegal aliens to enter into business transactions with the State or local governments.
Strikingly, the 11th Circuit panel adjudicating the case did not explain its rationale for enjoining these two provisions. (See U.S. v. Alabama, Order No. 11-14532, 11th Cir., Mar. 8, 2012) The Order merely explains:
We conclude that the plaintiffs [U.S. Department of Justice] in these matters have met their burden as to two additional sections of H.B. 56. We therefore expand [the Court's previous ruling] and hereby ENJOIN the State of Alabama's enforcement of Section 27 and Section 30 of H.B. 56 pending complete resolution of those appeals. (Id.)
The 11th Circuit had previously enjoined Sections 10 and 28 temporarily pending the appeal. Section 10 provides that an illegal alien who fails to comply with the federal alien registration requirements found in federal law is guilty of a misdemeanor under state law. Section 28 requires public schools to gather immigration status information from students upon enrollment, based on birth certificates, and compile and submit non-identifiable data related thereto to the state. (See FAIR Legislative Update, Oct. 17, 2011)
Despite the setbacks by the 11th Circuit, Alabama officials remain hopeful the U.S. Supreme Court will ultimately rule in favor of state enforcement of immigration law. Alabama Attorney General Luther Strange, who represents the state in the lawsuits against HB 56, said he "strongly disagreed" with the 11th Circuit's decision. "I am hopeful that the Supreme Court's coming decision in the Arizona case will make clear that our law is constitutional," he said. (Montgomery Advertiser, Mar. 8, 2012)
State Senator Scott Beason, a co-sponsor of the tough immigration law, echoed Attorney General Strange's comments. "I think we're going to be fine," he said. "The Arizona law will be successful, the Alabama law will come after that and be successful, and it will give a road map to other states in the nation to see what they can do." (Id.)
On Monday, President of Americans for Tax Reform, Grover Norquist, declared that that ending birthright citizenship would result in a "tax on every child being born." (National Journal, Mar. 5, 2012) Birthright citizenship refers to the prevalent interpretation of the 14th Amendment to the U.S. Constitution that any child born on U.S. territory (with the exception of children of foreign diplomats) is a U.S. citizen, regardless of the immigration status of the parents. (See FAIR Website on Birthright Citizenship, Sept. 2010)
Norquist explained his support for birthright citizenship during a teleconference with the National Federation for American Policy (NFAP), in which he touted the group's new report on the issue. The NFAP report argues that if the Citizenship Clause of the Fourteenth Amendment were eliminated, new parents in the U.S. would be required to pay $1200 to $1600 per child for government and legal fees to prove the citizenship of a baby. (See NFAP policy brief, Mar. 2012) Norquist claims such fees would result in $2.4 billion annually in federal revenue. (Id.; see also Houston Chronicle, Mar. 6, 2012)
Norquist also argued that eliminating birthright citizenship is not a solution to the country's illegal immigration problems, and suggested Republicans would be better off "embracing an overhaul" of immigration policy. (Id.) This isn't the first time Norquist has spoken up for an open borders immigration policy. He's been an advocate for amnesty, signing a pledge seeking "legal avenues" for illegal aliens, and implored Republicans to allow employers in the agriculture and hospitality industries easier access to foreign workers. (See Frontiers for Freedom website, Feb. 6, 2004) National Journal, Mar. 5, 2012)
FAIR has long held that the Citizenship Clause of the 14th Amendment, which was originally created to ensure emancipated slaves were recognized as citizens following the Civil War, has been grossly misinterpreted over time. The 14th Amendment was never meant to guarantee citizenship to illegal aliens, but only to "persons born in the United States… subject to the jurisdiction thereof…." (emphasis added) (See FAIR Website on Birthright Citizenship, Sept. 2010) The key lies in the interpretation of the phrase "subject to the jurisdiction thereof." Rep. John Bingham, who authored the Citizenship Clause, explicitly defined the intent of the amendment as "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is…a natural born citizen." (Id.) Thus, children of illegal aliens and those merely visiting or otherwise temporarily in the U.S. were never intended to be afforded citizenship.
The U.S. grants citizenship to an estimated 363,000 children of illegal aliens each year. (Id.)