FAIR Legislative Update May 30, 2012
The U.S. House of Representatives is set to pass two bills Wednesday aimed at strengthening border security. Both bills were passed by the House Homeland Security Committee last September and are expected to be passed by the full House without debate. (See FAIR Legislative Update, Sept. 26, 2011)
The Jaime Zapata Border Enforcement Security Task Force Act (H.R. 915), introduced by Rep. Henry Cuellar (D-TX), provides a statutory framework for the existing Border Enforcement Security Task Force (BEST) program by authorizing $10 million annually through 2016 for the program’s operation. (See H.R. 915 at §3) The BEST task force is a border security initiative designed to facilitate communication and mutual assistance between agencies at different levels of government. (Id.)
Named after Immigration and Customs Enforcement (ICE) Agent Jaime Zapata, who was brutally gunned down last year in Mexico by a drug cartel, H.R. 915 seeks to increase cooperation and information sharing between local, state, and federal agencies to strengthen collaborative efforts along the border. (Id.; see also FAIR Legislative Update, Feb. 22, 2011) Along with key state and local departments, federal agencies included in the BEST task force are ICE, Customs and Border Protection, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of Investigation, the Coast Guard, and the U.S. Attorney’s Office (USAO). (See H.R. 915 at §2)
The other border security bill up for consideration on the House Floor is the Secure Border Act of 2011 (H.R. 1299), introduced by Rep. Candice Miller (R-MI). Among other things, H.R. 1299 requires DHS to gain operational control (as defined in the Secure Fence Act of 2006) of the international borders within five years and directs the Department of Homeland Security (DHS) to submit a plan to achieve this goal to Congress within 180 days of enactment. (See H.R. 1299 at § 2)
Specifically, DHS must present in the plan a detailed strategy covering staffing requirements, technology investments (such as unmanned aerial surveillance, sensors, and cameras) and infrastructure investments (such as border fencing and vehicle barriers), as well as a timeline for implementing security measures. (Id.) The bill also requires DHS to report within 60 days on the effectiveness of border security at Ports of Entry and the allocation of border resources. (Id.)
If passed by the House, the bills will head to the Senate for further consideration.
Before leaving for a two-week long recess, the Senate quietly passed via unanimous consent a bill to expand the E-2 visa program to include Israeli nationals. (The Hill, May 25, 2012) The bill, H.R. 3992, was introduced by Rep. Howard Berman (D-CA) and passed the House in March.
The E-2 visa is a non-immigrant visa program that temporarily admits foreign nationals to the U.S. to develop a business enterprise in which the alien has invested. (INA § 101(a)(15)(E)) The program, however, is restricted to foreign nationals from countries that have appropriate treaties with the United States. The legislation qualifies Israeli nationals for the E-2 visa by adding Israel to the list of foreign states granted such treaty status. (H.R. 3992 § 1; see Department of State Website for list of treaty countries)
By passing the bill in each chamber without debate or amendment, Congress ignored the E-2 visa program’s several flaws. They include:
- No cap on the number of visas issued. Congress has not placed a cap on the number of individuals permitted into the country under the E-2 program. In addition to an unlimited number of principal E-2 visas, the program also provides for an unlimited number of derivative visas for spouses, children (up to age 21), and employees in a supervisory or executive capacity. (8 C.F.R. § 214.2(e)(3)-(4)) As a result, over 281,000 individuals entered the country on an E-2 visa in 2010 alone. (See DHS 2010 Statistical Yearbook, Table 25)
- Visa holders may remain in the U.S. indefinitely. Despite the intended temporary nature of the program, E-2 visa holders may enter the U.S. for an initial two-year period and then remain in the country indefinitely by extending their visa every two years. And, despite the fact that all temporary visas require intent to return to one’s home country, aliens may still apply for an E-2 visa even if they simultaneously apply or have been approved for an immigrant visa that puts them on a path to citizenship. (8 C.F.R. § 214.2(e)(5))
- No minimum investment is required. Federal regulations governing the visa program do not require applicants to have invested a specific amount of money or percentage of start-up capital into a business venture. The law merely states that the capital invested must be “substantial.” (8 C.F.R. § 214.2(e)(14)) The decision whether the alien meets the general requirements of the E-2 visa is up to the discretion of the particular State Department consular officer reviewing the application.
The bill now goes to President Obama to sign.
Last week, the Senate Appropriations Committee approved by a vote of 27-3 its version of the FY 2013 Department of Homeland Security (DHS) appropriations, S. 3216. The bill allocates $45.2 billion to DHS, a decrease of approximately $1 billion from FY 2012. (See S. 3216; see also Committee Report 112-169) The House Appropriations Committee passed its version earlier this month. (See FAIR Legislative Update, May 14, 2012)
Although the goal of appropriations bills are to fund pre-authorized programs, open borders members of the Committee are using S. 3216 as a means to expand the Visa Waiver Program (VWP). (The Hill, May 29, 2012) The relevant provision in the bill—based on legislation previously introduced by Sens. Barbara Mikulski (D-MD) and Mark Kirk (R-IL)—relaxes the requirements for entry into the VWP by allowing into the program countries whose visa overstay rate was not more than three percent in the previous fiscal year.
The bill relaxes the VWP requirements to include overstay rates in spite of the government’s stated inability to accurately calculate such. Just last December, a report released by the Government Accountability Office (GAO) revealed that DHS has not provided Congress annual overstay estimates regularly since 1994 “because officials do not have sufficient confidence in the quality of the department’s overstay data.” (GAO-12-287T at p. 12, Dec. 7, 2012) And although DHS relies on US-VISIT for such data, the bill fails to require that the biometric exit portion of the program be put in place. In fact, the bill reduces funding for US-VISIT from nearly $307 million that was appropriated to the program in FY 2012 to just over $279 million in FY 2013. (See Committee Report at p. 46)
In addition to reducing funding for US-VISIT, other vital immigration programs cut by Senate appropriators include:
- Border security fencing, infrastructure, and technology, by roughly $72 million (Id. at p. 40),
- Secure Communities by over $50 million (Id. at p. 53),
- 287(g) by $17 million (Id. at p. 54),
- Detention beds by 600 (down to 33,400 from 34,000) (Id. at 52), and
- Detention and Removal Operations by roughly $55 million (Id. at p. 56).
While cutting key enforcement programs, Senate appropriators dedicated over $1.3 million to the review of the Secure Communities, 287(g), and other unspecified programs by DHS’ Office of Civil Rights and Civil Liberties and ICE officials. (Id. at p. 12)
The bill now goes to the full Senate for consideration.
Each year, the State Department recruits 100,000 foreign university students to travel to the United States to take high-demand summer jobs. (See Department of State website for J-1 Visa Summer Work Program, 2012) The Summer Work Travel program (SWT), which operates off of the J-1 visa, is billed as a cultural exchange opportunity for foreign students, and gives them access to paid, unskilled positions such as restaurant waitstaff, pool lifeguards, hotel clerks, summer camp staff, and more. (Id.; see also New York Times, May 4, 2012)
The SWT program was created nearly fifty years ago, when unemployment conditions were much different than they are today. Now the demand for these jobs is at an all-time high. According to a recent study conducted by Northeastern University researchers, “about 1.5 million, or 53.6 percent, of bachelor's degree-holders under the age of 25 last year were jobless or underemployed, the highest share in at least 11 years.” (See Associated Press, Apr. 23, 2012)
Even President Obama admitted “America's young people face record unemployment, and we need to do everything we can to make sure they've got the opportunity to earn the skills and a work ethic that come with a job.” (See Summer Jobs+ Website, 2012) The President even launched a program through the Department of Labor called Summer Jobs+, which has the goal of creating over 200,000 new jobs for low-income youth by the start of summer. (Id.; see alsoABC News, Jan. 5, 2012)
This begs the question, why is the U.S. government still filling available unskilled jobs with foreign students, when it is so clear that young Americans need these jobs? Not only are American students missing out on the chance to earn money for college tuition, they are also losing opportunities to gain work experience that will make them valuable to colleges and future employers later on.
The Obama Administration issued an Interim Final Rule in early May, claiming to make certain the SWT program doesn’t displace American workers. (See Interim Final Rule at p. 2-3, May 11, 2012; see also New York Times, May 4, 2012) However, there is no requirement that employers offer jobs to Americans first, or even check to see if Americans are looking for jobs before hiring foreign students. (See Interim Final Rule at p. 2-3, May 11, 2012) The interim final rule implies that “displacement” refers to American workers who are already employed. (Id.) For example, employers cannot hire SWT students to replace American workers who are on strike or who were laid off within the past four months. (Id.) The rule doesn’t preclude employers from discounting Americans during the hiring process. (Id.)
Many employers who use the program insist that Americans no longer want to do these jobs. Douglas Winkler is a pool management company owner with approximately 650 employees—a third of which are foreign workers. (Washington Post, May 22, 2012) “The international students are really grateful to be here and have a job, while American students have so many other activities and demands on their time now,” he said. “I truly wish we didn’t have to rely so much on international labor, but the bottom line is that we don’t have any choice.” (Id.)
Other seasonal business owners, however, believe such arguments are merely an excuse to hire cheap foreign labor. According to another pool management company in Virginia, there are plenty of local applicants looking for work. (Washington Post, May 22, 2012) Casey Ford, the company’s president, explained that companies hire foreign students like SWT program participants simply because they “can save a lot of money.” (Id.)
This savings comes from the lack of contributions to Medicare, social security, and unemployment taxes—all things companies would have to pay if they hired Americans. (FOX News, May 4, 2012) Some companies also realized last year that SWT workers can equate to cheap hard labor. A candy packing plant captured national attention in Pennsylvania last August when it was discovered that J-1 workers were being taken advantage of, subjected to hazardous working conditions as well as predatory wage deductions. (New York Times, May 4, 2012)