US Legislative Immigration Update April 6, 2009

Biden: Amnesty at Odds With Economic Reality

Last week, Vice President Joe Biden addressed Central American leaders in Costa Rica and indicated that passage of amnesty legislation has been made more difficult with the United States’ current economic slowdown and rising joblessness.  “It’s difficult to tell a constituency while unemployment is rising, they’re losing their jobs and their homes, that what we should do is in fact legalize [illegal immigrants] and stop all deportation,” Biden said.  Biden then took the opportunity to reaffirm the Obama Administration’s support for so-called “comprehensive” immigration reform.  “We need some forbearance as we try to put together a comprehensive approach to deal with this.”  (The Arizona Republic, April 3, 2009; and Reuters, March 30, 2009). 

Despite the vocal activity of the Congressional Hispanic Caucus, other amnesty supporters also appear to be questioning whether the passage of amnesty legislation will be feasible given the nation’s current economic climate.  (Politico, April 3, 2009).  The Los Angeles Times reports that, “[w]ith unemployment on the rise, the immigration debate has moved to the back burner as lawmakers fear enacting a law that could be portrayed as beneficial for immigrants at the expense of struggling American workers.”  (The Los Angeles Times, March 27, 2009). 

In fact some amnesty advocates are now looking at alternative approaches to simply re-launching the “comprehensive” immigration reform bill that failed in 2006 and 2007.  “With their prospects in Congress sinking along with the economy, liberal advocates of giving undocumented immigrants a path to citizenship are launching a risky strategy,” the LA Times reports.  That strategy is “a proposal in which millions of undocumented workers would be legalized now, while the number of foreign workers allowed to enter the country would be examined by a new independent commission, and probably reduced.”  (LA Times).  While designed to draw support from labor unions, this approach may alienate some of the big business groups that have supported amnesty legislation when paired with so-called “guest worker programs,” including the U.S. Chamber of Commerce and Republican Senators, such as John McCain (R-AZ). 

Amnesty supporters may also choose to forego the “comprehensive” amnesty approach in favor of “stealth amnesty” legislation such as the DREAM Act, the House version of which would give amnesty to any illegal alien who can meet certain minimal educational requirements.  (See FAIR’s Legislative Analysis of the DREAM Act).

Napolitano Signals Surrender on Immigration Enforcement

Last week, Homeland Security (DHS) Secretary Janet Napolitano ordered the release of 27 illegal aliens who had been arrested by Immigration and Customs Enforcement (ICE) as part of a worksite enforcement investigation in Bellingham, Washington.  Upon their release, Napolitano directed that the ICE officials handling the case issue work permits to these illegal aliens.  (Fox News, April 1, 2009).  Napolitano, who reportedly was unhappy with ICE’s actions, requested a probe of the ICE team responsible for the enforcement effort (The Seattle Times, March 31, 2009), and has also ordered enforcement of the law suspended pending a comprehensive review of DHS immigration policy, according to a senior DHS source requesting anonymity.  (The Washington Post, March 29, 2009).

These unusual directives come at a time of increased scrutiny over the Obama Administration’s shift in policy from enforcing our nation’s immigration laws to policies that critics suggest will encourage more illegal immigration.  For example, on March 24, Napolitano issued a press release announcing an effort to counter Mexican drug cartel-related violence by redeploying ICE agents from their current role of interior enforcement.  (FAIR’s Legislative Update, March 30, 2009).

At an April 2 House Appropriations subcommittee hearing last week, Rep. Harold “Hal” Rogers (R-KY) cited the Bellingham case as proof that the administration was attempting to divert attention from immigration enforcement and warned that it would be a “giant mistake” to remove ICE agents from their current enforcement responsibilities.  (The Washington Times, April 2, 2009).  That same day, Rep. Trent Franks (R-AZ) expressed similar frustration about efforts to undermine the very successful 287(g) program, which provides training to state and local law enforcement to assist in immigration enforcement.  Noting that opponents of 287(g) have been critical of the program’s use in Maricopa County, Arizona, Franks pointed out that a significant amount of violent crime in the county is committed by illegal aliens and that enforcement efforts are central to ensuring public safety.  (East Valley Tribune, April 2, 2009).

House Panels Debate 287(g)

On Thursday, April 2, two House Judiciary Subcommittees -Immigration, Citizenship, Refugees, Border Security, and International Law and Constitution, Civil Rights, and Civil Liberties – held a joint hearing on “the Public Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws.”  Most of the hearing focused on Section 287(g) of the Immigration and Nationality Act, which allows Immigration and Customs Enforcement (ICE) to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws.  (Hearing Information, April 2, 2009; 8 U.S.C. 1357(g)).

The subcommittees heard testimony from two panels-largely filled with witnesses who opposed the 287(g) program.  The first panel was comprised of four witnesses, three of whom opposed 287(g) and one who supported the program.  The lone supporter of the 287(g) program on this panel was Ray Tranchant, whose 16 year old daughter Tessa and her best friend, Ali, were killed by an illegal alien drunk driver.  The illegal alien – who could not speak English and had a fake Florida driver’s license – had been arrested twice before for driving under the influence and public intoxication; however, sanctuary policies prevented officials from inquiring into the alien’s immigration status.  Mr. Tranchant told the joint subcommittee that he supports the 287(g) program because it likely would have saved the two teenage girls’ lives had at least one of two law enforcement agencies that had previously arrested the illegal alien been checking immigration status.

Mr. Tranchant dismissed arguments that the program should be scrapped because of anecdotal allegations of racial profiling: “A family should not have to mourn the death of a loved one just because of an unrelated policy or the political correctness of not offending or inconveniencing a few people.” (Testimony of Ray Tranchant, April 2, 2009).  During questioning from some of the subcommittee members, Mr. Tranchant reiterated his support for 287(g) agreements: “It takes undesirable people and puts them at the back of the immigration line…if you’re a drunk, go home.  If you’re a murderer go home.” (East Valley Tribune, April 2, 2009).

The other witnesses who sat next to Mr. Tranchant spoke out against the 287(g) program, suggesting it led to civil rights violations and racial profiling, but then offered only anecdotal testimony in support of these claims.  The first witness suggested that he and his father had been victims of racial profiling on February 11, 2009 after being temporarily detained at his father’s jobsite by the Maricopa County Sheriff’s Office.  The media has reported that Sheriff’s deputies were executing “arrest warrants for roughly 40 suspected illegal immigrants” who were working at the jobsite.  This suggests that the detention of the witness and his father was not a case of profiling but rather incidental to the proper execution of an arrest warrant.  (East Valley Tribune, April 2, 2009).  Once the witness demonstrated to Sheriff’s officers that he was a citizen and that his father was green-card holder, the two men were released. 

The second witness who spoke against 287(g) suggested that he was a victim of profiling when he testified that he had been pulled over by a police officer in Fredrick County, Maryland who thought he was not wearing a seat belt.  Maryland law allows for “primary enforcement” of its seat belt law, meaning that “police may stop a vehicle and issue citations to violators solely for violating the seat belt law.”  (Maryland Dept. of Transportation).  The witness testified that had been wearing his seatbelt and that the police officer let him go after the officer confirmed he had been wearing a seatbelt and after checking his driver’s license.  Based on the testimony, it appears that the witness was detained for a very short period of time.

Deborah Weissman, a law professor from the University of North Carolina was the final witness on the first panel.  She presented the findings of a report she co-authored with two individuals from the American Civil Liberties Union of North Carolina Legal Foundation.  The report attempts to paint the 287(g) program in North Carolina as too costly, too confusing and “detrimental” due to alleged instances of racial profiling.  (Testimony of Deborah M. Weissman, April 2, 2009).  None of the witnesses who raised concerns of racial profiling mentioned that laws are already in place to provide proper legal recourse to individuals who are discriminated against.  (Testimony of Julio Cesar Mora, April 2, 2009 and Testimony of Antonio Ramirez, April 2, 2009). 

Kris Kobach, a Professor of Immigration Law and Constitutional Law at the University of Missouri (Kansas City) and Senior Counsel for the Immigration Reform Law Institute (FAIR’s legal affiliate), testified in support of the program.  Kobach – who was involved in overseeing the implementation of the first two 287(g) agreements as Counsel to the U.S. Attorney General from 2001 to 2003 – told the panel that the program “has dramatically improved the rule of law in the immigration arena.”  (Testimony of Kris W. Kobach, April 2, 2009).  Kobach cited the fact that the 287(g) program has grown exponentially in the past 7 years, with 67 state and local law enforcement agencies now utilizing the program.  Kobach refuted the idea that 287(g) is leading to racial profiling, noting that state and local law enforcement officers are required to receive training to ensure civil liberties violations do not occur and that law enforcement agencies already have in place a process for aggrieved individuals to file a complaint in the event of a civil rights violation.  Additionally, Kobach testified that 287(g) is often adopted with the support of the local community and that any community can withdraw from the program at any time for any reason, including concerns over racial profiling.  Kobach noted that each agency “is free to leave the program,” but to date, none have. (East Valley Tribune, April 2, 2009).

Noticeably absent from the hearing was Maricopa County, Arizona Sheriff Joe Arpaio, whose department has been accused of racial profiling based on his office’s participation in 287(g).  According to FOX News, members of the subcommittees “took target practice” at Arpaio, even though Immigration Subcommittee Chairwoman Zoe Lofgren (D-CA) admitted that Arpaio hadn’t been invited to defend himself.  (FOX News, April 2, 2009).  Mesa, Arizona Police Chief George Gascon did testify at the hearing in opposition to 287(g) and Sheriff Arpaio’s utilization of the program.  Gascon was asked which organizations had paid for his travel expenses to testify and, while acknowledging that his travel was paid for by “a group of nonprofit organizations… seeking immigration reform,” was unable to answer the question on the record.  Instead, he told the committee he would have to get back to them in order to respond to the question.  (East Valley Tribune, April 2, 2009).  Congressman Trent Franks (R-AZ) defended Arpaio at the hearing, and pointed out that illegal aliens commit 53% of Maricopa County’s violent crimes.

UPDATE: Obama’s Illegal Alien Aunt Granted Ten More Months in United States

A federal judge last week granted President Obama’s illegal alien aunt ten additional months to prepare an argument against her pending deportation.  Zeituni Onyango – whose illegal presence in the U.S. has generated much media attention (see FAIR’s Legislative Update, March 30, 2009) – will be given yet another chance to make her case for asylum at a full hearing before Immigration Judge Leonard Shapiro on February 4, 2010.  (The Washington Post, April 2, 2009).
 
Escorted by the Federal Protective Service component of Immigration and Customs Enforcement (ICE), Ms. Onyango appeared before Judge Shapiro on April 1 for what was essentially an administrative hearing.  The hearing – which was closed to the public at her lawyer’s request (The Associated Press, April 1, 2009) – lasted less than 15 minutes, and Judge Shapiro informed Onyango that the full hearing on removal proceedings against her would take place next year.  Ms. Onyango left the hearing in the company of the ICE-provided security detail, without using public entrances.  (Bloomberg, April 1, 2009).

True immigration reformers have pointed out that Onyango’s case serves as a symbol of how U.S. immigration policy is abused. (See FAIR’s Press Release, April 2, 2009).  Since 2003, Onyango has successfully used procedural maneuvers twice to delay her pending deportation order, an order issued when her request for asylum was denied. (Bloomberg, April 1, 2009).  A 2008 Government Accountability Office report found the U.S. asylum system rife with fraud. (GAO Report, September 2008).  Additionally, Onyango’s case highlights the backlog many immigration courts face, due at least in part to the large number of illegal aliens who defy deportation orders and seek to have their cases reopened. In the Boston immigration court where Onyango’s case is being handled, an extensive backlog has made 10-month delays such as hers routine. (The Washington Post, April 2, 2009).

Despite Rising Unemployment, Banks Continue to Replace Americans with H-1B Workers

Amid last week’s announcement that the nationwide unemployment rate has now climbed to 8.5% (Bureau of Labor Statistics), immigration experts and media reports have highlighted how banks who received funding from last year’s $700 billion federal bank bailout are utilizing the H-1B visa program to replace American workers with cheap foreign labor.  This discrimination against American citizens in favor of foreign workers continues despite legislation aimed to prevent this.  In February, Senators Bernie Sanders (I-VT) and Chuck Grassley (R-IA) successfully attached the “Employ American Workers Act” (EAWA) to the stimulus bill. 

While EAWA did not impose a flat ban on H-1B workers for entities who received a taxpayer bailout, it did seek to prevent these entities from displacing American workers with H-1B visa holders.  (See FAIR’s Legislative Update, February 17, 2009).  An analysis of U.S. Citizenship and Immigration Services’ interpretation of EAWA reveals two loopholes that will allow entities that received a bank bailout to continue to employ H-1B workers without violating federal law.  Since EAWA does not actually impose a flat ban on H-1B workers for banks that were bailed out, USCIS interpreted the legislation so that “EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category.”  Accordingly, banks can circumvent the intended protections of EAWA by hiring a foreign student, without first recruiting Americans. A bank can simply hire the foreign student under the Optional Practical Training (OPT) section in the F-1 student visa program, and then petition to move the student to H-1B status.  At that point, the H-1B worker would be an existing employee exempt from any EAWA limitation.  USCIS has also determined that EAWA “does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer,” further allowing bailout recipients to continue to employ H-1B visa holders instead of Americans.  (USCIS Update, March 20, 2009; USCIS Questions and Answers, March 20, 2009).

On Thursday, March 30, WSOCTV in Charlotte, North Carolina revealed that bailout recipients Wachovia and Bank of America are utilizing a process known as “on-shoring” to allow them to continue to lay off American workers and replace them with H-1B visa holders. According to the report, the on-shoring process involves using “third-party consultants to find workers in other countries instead of hiring foreign workers directly.”  These consultants can then “provide foreign workers their H-1B visas,” and send them to work at one of the banks.  Since the banks are paying the contractor rather than the employee directly, it’s not a violation of EAWA. While Bank of America and Wachovia refused to comment on whether they were still using H-1B workers hired by third-party consultants, WSOCTV obtained an internal Wachovia document that showed “a Wachovia work group where 12 of 22 software engineers were brought to Charlotte by a technology consulting company called Syenchron.”  Additionally, a Charlotte resident told WSOCTV that he would be losing his job at Wachovia as soon as he finishes training his replacement – a foreign worker brought in from India to do his job at a lower salary.  (WSOCTV, March 30, 2009).
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Biden: Amnesty at Odds With Economic Reality

Last week, Vice President Joe Biden addressed Central American leaders in Costa Rica and indicated that passage of amnesty legislation has been made more difficult with the United States’ current economic slowdown and rising joblessness.  “It’s difficult to tell a constituency while unemployment is rising, they’re losing their jobs and their homes, that what we should do is in fact legalize [illegal immigrants] and stop all deportation,” Biden said.  Biden then took the opportunity to reaffirm the Obama Administration’s support for so-called “comprehensive” immigration reform.  “We need some forbearance as we try to put together a comprehensive approach to deal with this.”  (The Arizona Republic, April 3, 2009; and Reuters, March 30, 2009). 

Despite the vocal activity of the Congressional Hispanic Caucus, other amnesty supporters also appear to be questioning whether the passage of amnesty legislation will be feasible given the nation’s current economic climate.  (Politico, April 3, 2009).  The Los Angeles Times reports that, “[w]ith unemployment on the rise, the immigration debate has moved to the back burner as lawmakers fear enacting a law that could be portrayed as beneficial for immigrants at the expense of struggling American workers.”  (The Los Angeles Times, March 27, 2009). 

In fact some amnesty advocates are now looking at alternative approaches to simply re-launching the “comprehensive” immigration reform bill that failed in 2006 and 2007.  “With their prospects in Congress sinking along with the economy, liberal advocates of giving undocumented immigrants a path to citizenship are launching a risky strategy,” the LA Times reports.  That strategy is “a proposal in which millions of undocumented workers would be legalized now, while the number of foreign workers allowed to enter the country would be examined by a new independent commission, and probably reduced.”  (LA Times).  While designed to draw support from labor unions, this approach may alienate some of the big business groups that have supported amnesty legislation when paired with so-called “guest worker programs,” including the U.S. Chamber of Commerce and Republican Senators, such as John McCain (R-AZ). 

Amnesty supporters may also choose to forego the “comprehensive” amnesty approach in favor of “stealth amnesty” legislation such as the DREAM Act, the House version of which would give amnesty to any illegal alien who can meet certain minimal educational requirements.  (See FAIR’s Legislative Analysis of the DREAM Act).

Napolitano Signals Surrender on Immigration Enforcement

Last week, Homeland Security (DHS) Secretary Janet Napolitano ordered the release of 27 illegal aliens who had been arrested by Immigration and Customs Enforcement (ICE) as part of a worksite enforcement investigation in Bellingham, Washington.  Upon their release, Napolitano directed that the ICE officials handling the case issue work permits to these illegal aliens.  (Fox News, April 1, 2009).  Napolitano, who reportedly was unhappy with ICE’s actions, requested a probe of the ICE team responsible for the enforcement effort (The Seattle Times, March 31, 2009), and has also ordered enforcement of the law suspended pending a comprehensive review of DHS immigration policy, according to a senior DHS source requesting anonymity.  (The Washington Post, March 29, 2009).

These unusual directives come at a time of increased scrutiny over the Obama Administration’s shift in policy from enforcing our nation’s immigration laws to policies that critics suggest will encourage more illegal immigration.  For example, on March 24, Napolitano issued a press release announcing an effort to counter Mexican drug cartel-related violence by redeploying ICE agents from their current role of interior enforcement.  (FAIR’s Legislative Update, March 30, 2009).

At an April 2 House Appropriations subcommittee hearing last week, Rep. Harold “Hal” Rogers (R-KY) cited the Bellingham case as proof that the administration was attempting to divert attention from immigration enforcement and warned that it would be a “giant mistake” to remove ICE agents from their current enforcement responsibilities.  (The Washington Times, April 2, 2009).  That same day, Rep. Trent Franks (R-AZ) expressed similar frustration about efforts to undermine the very successful 287(g) program, which provides training to state and local law enforcement to assist in immigration enforcement.  Noting that opponents of 287(g) have been critical of the program’s use in Maricopa County, Arizona, Franks pointed out that a significant amount of violent crime in the county is committed by illegal aliens and that enforcement efforts are central to ensuring public safety.  (East Valley Tribune, April 2, 2009).

House Panels Debate 287(g)

On Thursday, April 2, two House Judiciary Subcommittees -Immigration, Citizenship, Refugees, Border Security, and International Law and Constitution, Civil Rights, and Civil Liberties – held a joint hearing on “the Public Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws.”  Most of the hearing focused on Section 287(g) of the Immigration and Nationality Act, which allows Immigration and Customs Enforcement (ICE) to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws.  (Hearing Information, April 2, 2009; 8 U.S.C. 1357(g)).

The subcommittees heard testimony from two panels-largely filled with witnesses who opposed the 287(g) program.  The first panel was comprised of four witnesses, three of whom opposed 287(g) and one who supported the program.  The lone supporter of the 287(g) program on this panel was Ray Tranchant, whose 16 year old daughter Tessa and her best friend, Ali, were killed by an illegal alien drunk driver.  The illegal alien – who could not speak English and had a fake Florida driver’s license – had been arrested twice before for driving under the influence and public intoxication; however, sanctuary policies prevented officials from inquiring into the alien’s immigration status.  Mr. Tranchant told the joint subcommittee that he supports the 287(g) program because it likely would have saved the two teenage girls’ lives had at least one of two law enforcement agencies that had previously arrested the illegal alien been checking immigration status.

Mr. Tranchant dismissed arguments that the program should be scrapped because of anecdotal allegations of racial profiling: “A family should not have to mourn the death of a loved one just because of an unrelated policy or the political correctness of not offending or inconveniencing a few people.” (Testimony of Ray Tranchant, April 2, 2009).  During questioning from some of the subcommittee members, Mr. Tranchant reiterated his support for 287(g) agreements: “It takes undesirable people and puts them at the back of the immigration line…if you’re a drunk, go home.  If you’re a murderer go home.” (East Valley Tribune, April 2, 2009).

The other witnesses who sat next to Mr. Tranchant spoke out against the 287(g) program, suggesting it led to civil rights violations and racial profiling, but then offered only anecdotal testimony in support of these claims.  The first witness suggested that he and his father had been victims of racial profiling on February 11, 2009 after being temporarily detained at his father’s jobsite by the Maricopa County Sheriff’s Office.  The media has reported that Sheriff’s deputies were executing “arrest warrants for roughly 40 suspected illegal immigrants” who were working at the jobsite.  This suggests that the detention of the witness and his father was not a case of profiling but rather incidental to the proper execution of an arrest warrant.  (East Valley Tribune, April 2, 2009).  Once the witness demonstrated to Sheriff’s officers that he was a citizen and that his father was green-card holder, the two men were released. 

The second witness who spoke against 287(g) suggested that he was a victim of profiling when he testified that he had been pulled over by a police officer in Fredrick County, Maryland who thought he was not wearing a seat belt.  Maryland law allows for “primary enforcement” of its seat belt law, meaning that “police may stop a vehicle and issue citations to violators solely for violating the seat belt law.”  (Maryland Dept. of Transportation).  The witness testified that had been wearing his seatbelt and that the police officer let him go after the officer confirmed he had been wearing a seatbelt and after checking his driver’s license.  Based on the testimony, it appears that the witness was detained for a very short period of time.

Deborah Weissman, a law professor from the University of North Carolina was the final witness on the first panel.  She presented the findings of a report she co-authored with two individuals from the American Civil Liberties Union of North Carolina Legal Foundation.  The report attempts to paint the 287(g) program in North Carolina as too costly, too confusing and “detrimental” due to alleged instances of racial profiling.  (Testimony of Deborah M. Weissman, April 2, 2009).  None of the witnesses who raised concerns of racial profiling mentioned that laws are already in place to provide proper legal recourse to individuals who are discriminated against.  (Testimony of Julio Cesar Mora, April 2, 2009 and Testimony of Antonio Ramirez, April 2, 2009). 

Kris Kobach, a Professor of Immigration Law and Constitutional Law at the University of Missouri (Kansas City) and Senior Counsel for the Immigration Reform Law Institute (FAIR’s legal affiliate), testified in support of the program.  Kobach – who was involved in overseeing the implementation of the first two 287(g) agreements as Counsel to the U.S. Attorney General from 2001 to 2003 – told the panel that the program “has dramatically improved the rule of law in the immigration arena.”  (Testimony of Kris W. Kobach, April 2, 2009).  Kobach cited the fact that the 287(g) program has grown exponentially in the past 7 years, with 67 state and local law enforcement agencies now utilizing the program.  Kobach refuted the idea that 287(g) is leading to racial profiling, noting that state and local law enforcement officers are required to receive training to ensure civil liberties violations do not occur and that law enforcement agencies already have in place a process for aggrieved individuals to file a complaint in the event of a civil rights violation.  Additionally, Kobach testified that 287(g) is often adopted with the support of the local community and that any community can withdraw from the program at any time for any reason, including concerns over racial profiling.  Kobach noted that each agency “is free to leave the program,” but to date, none have. (East Valley Tribune, April 2, 2009).

Noticeably absent from the hearing was Maricopa County, Arizona Sheriff Joe Arpaio, whose department has been accused of racial profiling based on his office’s participation in 287(g).  According to FOX News, members of the subcommittees “took target practice” at Arpaio, even though Immigration Subcommittee Chairwoman Zoe Lofgren (D-CA) admitted that Arpaio hadn’t been invited to defend himself.  (FOX News, April 2, 2009).  Mesa, Arizona Police Chief George Gascon did testify at the hearing in opposition to 287(g) and Sheriff Arpaio’s utilization of the program.  Gascon was asked which organizations had paid for his travel expenses to testify and, while acknowledging that his travel was paid for by “a group of nonprofit organizations… seeking immigration reform,” was unable to answer the question on the record.  Instead, he told the committee he would have to get back to them in order to respond to the question.  (East Valley Tribune, April 2, 2009).  Congressman Trent Franks (R-AZ) defended Arpaio at the hearing, and pointed out that illegal aliens commit 53% of Maricopa County’s violent crimes.

UPDATE: Obama’s Illegal Alien Aunt Granted Ten More Months in United States

A federal judge last week granted President Obama’s illegal alien aunt ten additional months to prepare an argument against her pending deportation.  Zeituni Onyango – whose illegal presence in the U.S. has generated much media attention (see FAIR’s Legislative Update, March 30, 2009) – will be given yet another chance to make her case for asylum at a full hearing before Immigration Judge Leonard Shapiro on February 4, 2010.  (The Washington Post, April 2, 2009).
 
Escorted by the Federal Protective Service component of Immigration and Customs Enforcement (ICE), Ms. Onyango appeared before Judge Shapiro on April 1 for what was essentially an administrative hearing.  The hearing – which was closed to the public at her lawyer’s request (The Associated Press, April 1, 2009) – lasted less than 15 minutes, and Judge Shapiro informed Onyango that the full hearing on removal proceedings against her would take place next year.  Ms. Onyango left the hearing in the company of the ICE-provided security detail, without using public entrances.  (Bloomberg, April 1, 2009).

True immigration reformers have pointed out that Onyango’s case serves as a symbol of how U.S. immigration policy is abused. (See FAIR’s Press Release, April 2, 2009).  Since 2003, Onyango has successfully used procedural maneuvers twice to delay her pending deportation order, an order issued when her request for asylum was denied. (Bloomberg, April 1, 2009).  A 2008 Government Accountability Office report found the U.S. asylum system rife with fraud. (GAO Report, September 2008).  Additionally, Onyango’s case highlights the backlog many immigration courts face, due at least in part to the large number of illegal aliens who defy deportation orders and seek to have their cases reopened. In the Boston immigration court where Onyango’s case is being handled, an extensive backlog has made 10-month delays such as hers routine. (The Washington Post, April 2, 2009).

Despite Rising Unemployment, Banks Continue to Replace Americans with H-1B Workers

Amid last week’s announcement that the nationwide unemployment rate has now climbed to 8.5% (Bureau of Labor Statistics), immigration experts and media reports have highlighted how banks who received funding from last year’s $700 billion federal bank bailout are utilizing the H-1B visa program to replace American workers with cheap foreign labor.  This discrimination against American citizens in favor of foreign workers continues despite legislation aimed to prevent this.  In February, Senators Bernie Sanders (I-VT) and Chuck Grassley (R-IA) successfully attached the “Employ American Workers Act” (EAWA) to the stimulus bill. 

While EAWA did not impose a flat ban on H-1B workers for entities who received a taxpayer bailout, it did seek to prevent these entities from displacing American workers with H-1B visa holders.  (See FAIR’s Legislative Update, February 17, 2009).  An analysis of U.S. Citizenship and Immigration Services’ interpretation of EAWA reveals two loopholes that will allow entities that received a bank bailout to continue to employ H-1B workers without violating federal law.  Since EAWA does not actually impose a flat ban on H-1B workers for banks that were bailed out, USCIS interpreted the legislation so that “EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category.”  Accordingly, banks can circumvent the intended protections of EAWA by hiring a foreign student, without first recruiting Americans. A bank can simply hire the foreign student under the Optional Practical Training (OPT) section in the F-1 student visa program, and then petition to move the student to H-1B status.  At that point, the H-1B worker would be an existing employee exempt from any EAWA limitation.  USCIS has also determined that EAWA “does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer,” further allowing bailout recipients to continue to employ H-1B visa holders instead of Americans.  (USCIS Update, March 20, 2009; USCIS Questions and Answers, March 20, 2009).

On Thursday, March 30, WSOCTV in Charlotte, North Carolina revealed that bailout recipients Wachovia and Bank of America are utilizing a process known as “on-shoring” to allow them to continue to lay off American workers and replace them with H-1B visa holders. According to the report, the on-shoring process involves using “third-party consultants to find workers in other countries instead of hiring foreign workers directly.”  These consultants can then “provide foreign workers their H-1B visas,” and send them to work at one of the banks.  Since the banks are paying the contractor rather than the employee directly, it’s not a violation of EAWA. While Bank of America and Wachovia refused to comment on whether they were still using H-1B workers hired by third-party consultants, WSOCTV obtained an internal Wachovia document that showed “a Wachovia work group where 12 of 22 software engineers were brought to Charlotte by a technology consulting company called Syenchron.”  Additionally, a Charlotte resident told WSOCTV that he would be losing his job at Wachovia as soon as he finishes training his replacement – a foreign worker brought in from India to do his job at a lower salary.  (WSOCTV, March 30, 2009).
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The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation’s immigration policies must be reformed to serve the national interest.

FAIR seeks to improve border security, to stop illegal immigration, and to promote immigration levels consistent with the national interest-more traditional rates of about 300,000 a year.