Legislative Update: 8/9/2016
Obama to Waive Unlawful Presence for Certain Illegal Aliens
The Obama administration has taken yet another executive action to unilaterally rewrite our immigration laws. This time, through a U.S. Citizenship and Immigration Services (USCIS) final rule, the Obama administration announced it is significantly expanding the provisional waiver of inadmissibility for certain individuals living in the country unlawfully. (Law 360, Aug. 2, 2016) In doing so, President Obama is forgiving the unlawful presence of an individual who is otherwise eligible for a green card.
Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. Immigration and Nationality Act Section 212(a)(9)(B) says that aliens who have been illegally present in the U.S. between six months and a year may not be readmitted for three years; it also says aliens who have been illegally present in the U.S. for over a year may not return for ten years. (INA § 212(a)(9)(B)(i)) Congress did grant the Executive Branch the authority to waive an individual’s unlawful presence if they have an immediate relative U.S. citizen or green card holder and the separation caused by the 3- and 10- year bars would pose “extreme hardship” to the relative. (INA § 212(a)(9)(B)(v))
What President Obama has done is take this narrow statutory authority and unilaterally expand it to all categories of visas. Now, any person living in the U.S. unlawfully and has a citizen or LPR immediate relative can apply to have the 3- and 10- year bars waived when their green card (family-based, employment, or visa lottery) becomes available. Once granted the provisional waiver, they simply leave the U.S. to claim their green card in their home country and then can immediately return to the U.S. with lawful immigration status. While still subject to the “extreme hardship” requirement, it is important to note that this term is not defined and the Obama administration is expected to take an expansive interpretation of the phrase. Indeed, the announcement accompanying the final rule said, “The provisional waiver process promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.” (81 Fed. Reg. 50244, July 29, 2016)(emphasis added)
The impact of this rule is clear. Congress enacted the 3- and 10- year bars to deter illegal immigration. By significantly expanding the provisional waiver of unlawful presence inadmissibility, the Obama administration is downplaying the severity of living in the country illegally. Now, any individual with a citizen or LPR immediate relative has the incentive to live in the U.S. unlawfully instead of remaining in their home country until their green card becomes available because they know the Obama administration (and possibly future administrations) will waive their unlawful presence.
Obama Administration Takes Steps to Circumvent H-1B Cap
This week, U.S. Citizenship and Immigration Services (USCIS) submitted a proposed rule on parole for entrepreneurs to the Office of Management and Budget (OMB) for review. (Law360, Aug. 3, 2016) Titled “Significant Public Benefit Parole for Entrepreneurs,” this proposed rule seeks to implement the last of President Obama’s sweeping executive actions on immigration announced in November 2014 in a series of memos by Homeland Security Secretary Jeh Johnson (known as the Johnson Memos). (See FAIR Legislative Update, Nov. 24, 2014)
Ever since Congress rejected legislation to grant mass amnesty and significantly increase legal immigration, the Obama administration has worked to devise ways to bring more foreign workers into the country. Although specifics are not yet available, the proposed rule will formalize the Johnson Memo that called for using “parole” to bring foreign “inventors, researchers, and founders of start-up enterprises” into the country. (See FAIR’s Report, Obama’s Immigration Executive Actions: One Year Later, Nov. 20, 2015) The Obama administration claims that it has authority to grant parole under Immigration and Nationality Act Section 212(d)(5) as a “significant public benefit.”
It is clear, however, that President Obama is using parole authority to circumvent the cap on H-1B nonimmigrant visas. The President’s desire to create this parole program stems from the fact that applications for H-1B visas exceed the 65,000 annual cap (plus another 20,000 for those with advanced STEM degrees) because they are a source of cheap labor favored by employers, especially in the tech industry. (See INA § 214(g)(1)(A), INA § 214(g)(5)(C)) Clearly, the “entrepreneurs” who will benefit from this new program are foreigners who should be obtaining an H-1B visa to enter the U.S. to work. Granting parole is significant because there are not statutory caps and individuals become eligible for many taxpayer funded benefits after one year. Indeed, immigration attorney Susan Cohen points out that since there was never a “startup visa,” the entrepreneur parole fix that President Obama created was “creative.” (See CNN Money, Nov. 21, 2014)
The timing of this entrepreneur parole proposed rule is not surprising. President Obama has only a limited time to complete the rulemaking process before he leaves office. Stay tuned for more specifics about the rule governing entrepreneur parole.
Obama Administration Rewards Sanctuary City Jurisdictions with $342 Million in Grant Funding
A recent report by the Department of Justice (DOJ) Inspector General found that the Obama administration has forked over millions of dollars to sanctuary cities – state and local jurisdictions with policies that impede the enforcement of federal immigration law. (DOJ OIG Report, July 28, 2016) According to the report, an astonishing 63 percent of all active DOJ grants – including those made through the Edward Byrne Justice Assistance Grant Program (JAG) and the State Criminal Alien Assistance Program (SCAAP) – went to just ten jurisdictions, all who embrace dangerous sanctuary policies. (Id.) Collectively, these recalcitrant jurisdictions received a total of $342 million in taxpayer-funded grants as of March 17, 2016. (Id.) These jurisdictions include: the States of California and Connecticut; Cook County, Illinois; New York City, New York; and Philadelphia, Pennsylvania. (Id.)
The aforementioned findings were released several weeks after the DOJ’s Office of Justice Programs distributed new guidance that would deny federal law enforcement grants to jurisdictions that do not comply with 8 U.S.C. § 1373. (See FAIR Legislative Update, July 12, 2016; DOJ Letter to Culberson and Guidance, July 7, 2016) This statute explicitly prohibits sanctuary policies that impede cooperation between federal, state, and local officials when it comes to the sending, requesting, maintaining, or exchanging of information regarding a person's immigration status. Now, according to the guidance, state and local jurisdictions that refuse to comply with 8 U.S.C. § 1373 will no longer be eligible for grants through the JAG and SCAAP programs.
The Inspector General’s report was issued at the request of Rep. John Culberson (R-TX), who gave a stern warning to the jurisdictions that were mentioned. “In this report, the [Inspector General] confirms that ten of the nation’s largest grant recipients are not in compliance with 8 U.S.C. § 1373,” Culberson said. (Culberson Press Release, July 29, 2016) “If these ten jurisdictions do not repeal their sanctuary policies to comply with this federal immigration law, they will not be eligible for [JAG and SCAAP] law enforcement grants and could be subject to civil and criminal penalties.” (Id.)
While the DOJ’s guidance was lauded by FAIR as an encouraging development in the fight against dangerous sanctuary jurisdictions, the Inspector General’s findings underscore the need to close a loophole in existing law to fully shut off the exorbitant amount of federal money being pumped into sanctuary cities. Specifically, 8 U.S.C. § 1373 does not require the collection of immigration information, so many sanctuary jurisdictions simply refuse to do so and are technically in full compliance with the law. The new guidance points this out, "[8 U.S.C. § 1373] does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information." (DOJ Letter to Culberson and Guidance, July 7, 2016) Thus, in order to prevent sanctuary jurisdictions from circumventing the intent of the DOJ's guidance, Congress must amend 8 U.S.C. § 1373 to require the collection of immigration information from all detained aliens. One bill that accomplishes this important goal is Sen. Jeff Sessions's (R-AL) "Protecting American Lives Act" (S. 1842) and FAIR urges its swift passage.
Last week, the Department of Homeland Security (DHS) renewed the Temporary Protected Status (TPS) designation for Syria that was first adopted in March 2012. (DHS Press Release, Aug. 1, 2016) The renewed TPS designation allows approximately 5,800 nationals of the war-torn country to stay in the United States through March 31, 2018. (Washington Times, Aug. 1, 2016) Further, DHS specified a new period of eligibility to gain TPS protection for 2,500 Syrians who arrived in the country before August 1, 2016. (Id.) This effectively covers all Syrians who entered the country in the last four years, regardless of current immigration status. (Id.)
National security concerns aside, the decision to grant TPS is significant. Originally enacted in 1990, TPS applies to non-resident foreigners unable to return to their homeland because of civil strife or effects of a natural disaster of "extraordinary and temporary conditions." (See FAIR Temporary Protective Status Issue Brief) Foreign nationals who benefited from the initial grant of TPS were not people seeking permanent U.S. residence, such as asylum applicants. Instead, foreign students or visitors whose visas were expiring were spared from seeking a visa extension by this provision. In practice, the true beneficiaries of TPS were not temporary visitors, but rather people who had entered the United States illegally. Not only did TPS spare these illegal aliens from deportation, it provided them "temporary" legal status in the country, along with work permits and access to a slew of taxpayer-funded benefits. Predictably, there has been nothing "temporary" about TPS, as the U.S. government has renewed the status for nearly every country every 12 to 18 months, indefinitely. Thus, TPS has become a back door route to permanent residence rather than a means to provide temporary protection.
New Poll Shows Americans Want Lower Immigration, Job Protection
A new poll by Gravis Marketing in conjunction with Breitbart News Network finds that Americans want to limit immigration and protect American workers from a flood of “foreign workers” who will take their jobs and drive down wages. (Breitbart, July 31, 2016) The poll surveyed 2,010 registered voters. (Id.)
According to this recent poll, Americans overwhelmingly support immigration policies that protect American workers. (Id.) Seventy-five percent of those polled believe that American workers should get American jobs –including 69.8 percent of Democrats—while only 3 percent said that foreign workers should be able to fill U.S. jobs. (Id.) Instead of giving jobs and healthcare to millions of refugees around the world, three out of four voters polled say we need rebuild our inner cities and put Americans back to work. (Id.) Furthermore, these voters want our politicians to put American workers before “big business.” (Id.)
Finally, the voters polled clearly wanted to see immigration decreased. (Id.) Sixty-three percent of those surveyed say that we admit too many immigrants into the country while 11 percent believe we do not admit enough immigrants into the country. (Id.) Only 13 percent of Democrats and Independents and only 7 percent of Republicans want to see immigration increased. (Id.)
Doug Kaplan, managing partner of Gravis Marketing, summarized the poll’s findings, “The poll shows that instead of dividing Americans, immigration is an issue where Americans have reached the consensus that it is a problem, maybe the problem.” (Id.)
To learn more about the immigration positions of the presidential candidates, click here.
Alabama Loses Refugee Battle
Late last month, a federal district court dismissed Alabama’s lawsuit against the U.S. government over the resettlement of refugees to the State. (Montgomery Advertiser, Aug. 2, 2016) The lawsuit challenged the federal government’s plans to resettle Syrian refugees to Alabama without first consulting with the State. (Id.)
Alabama Governor Robert Bentley (R) issued an executive order last fall halting the resettlement of Syrian refugees following the terrorist attacks in Paris, France. That attacks involved at least one Syrian refugee aligned with ISIS. (Office of the Governor, Nov. 16, 2015) He then filed suit against the federal government after numerous inquiries went unanswered regarding plans to resettle Syrian refugees in Alabama. (Montgomery Advertiser, Aug. 2, 2016)
While only the federal government may decide who can enter the U.S. as a refugee, federal law requires cooperation between federal, state, and local governments when it comes to the resettlement of refugees admitted to the United States. Specifically, the Refugee Act of 1980 requires the federal government to consult and work with states, no less than quarterly, before resettling any refugees in a community to ensure that localities are prepared to accommodate additional populations. (See 8 U.S.C. § 1522(a)(2)(A)-(C))
Despite this requirement, the State of Alabama alleged the federal government acted independently in the refugee resettlement process. As a result of the federal government’s failure to conform to its legal obligations, the State claimed it was unprepared to handle the influx of refugees into its communities.
Nonetheless, the court ruled that there is no private right of action to enforce the Refugee Act’s consultation requirement because Congress did not include a provision in the law authorizing the states to enforce it. (Court Opinion) Additionally, the court dismissed the State’s claim for relief under the Administrative Procedures Act (APA) because it reasoned that the federal government’s failure to consult the State didn’t qualify as a discrete agency action (as required to give rise to judicial relief under the APA). (Id.) The court also refused to compel the federal government to conform to its legal obligations. (Id.)
Governor Bentley expressed disappointment in the court’s decision. “I am disappointed in the court’s decision to dismiss Alabama’s case against the federal government for non-compliance of the Refugee Act of 1980. My problem is not with individual refugees, my issue is with the federal government and their inability to enforce their own their laws,” Governor Bentley said in response to the court’s order. (Office of the Governor, Jul. 29, 2016) “The federal government has a total disregard for the states safety,” he continued. (Id.)
Alabama is not the only state to challenge the federal government’s refugee resettlement actions. Late last year, the State of Texas filed a lawsuit against the U.S. government with similar allegations regarding refugee resettlement. (Texas Tribune, Dec. 2, 2015) Additionally, the Tennessee General Assembly declare in April that it will sue the U.S. government over its refugee settlement program. (Breitbart, Apr. 19, 2016) While Texas’ lawsuit was dismissed on similar grounds, Tennessee, which officially withdrew its participation in the federal Refugee Resettlement Program in 2008, has not yet been filed. (Washington Post, June 16, 2016; Breitbart, Apr. 19, 2016)