December 1, 2008
Immigration Law in Congress and current immigration legislation impacting Americans
Fair has released its Legislative Immigration Update that covers the following. 

  • Fraud Pervasive in African Refugee Program
  • Lieberman, Feinstein Oppose Visa Waiver Expansion
  • USCIS Revises Religious Worker Visa Regulations
  • More Aliens May Qualify for 1986 Amnesty

Fraud Pervasive in African Refugee Program

The State Department has suspended the Africa Priority Three (P-3) Program because of an investigation into the refugee family reunification program that revealed that less than 20% of the African applicants were able to prove familial ties. Since it began in 2003, nearly 36,000 African nationals have come to the United States as P-3 Program refugees. The State Department report also indicates that nearly 95% of refugees admitted to the United States through the P-3 program are from African countries. (State Department Fact Sheet, November 18, 2008)

According to the State Department, the US Refugee Admissions Program (USRAP) uses three designations to distinguish between refugee applicants: P-1, P-2, and P-3. Refugees in the P-1 and P-2 categories are admitted based on “their vulnerability in their native country.” (Times-Gazette, November 16, 2008) The State Department has not suspended the P-1 and P-2 categories, which require referral from the United Nations, a U.S. Embassy, or a non-governmental organization and subsequent admission from the Department of Homeland Security (DHS). (State Department Fact Sheet, November 18, 2008)

Following repeated reports of fraud in the Africa P-3 Program, the State Department began DNA testing with a sample of 500 Kenyan applicants. After that sample “suggested high levels of fraud,” the department expanded the tests to Ethiopia, Uganda, Ghana, Guinea, Gambia and Cote d’Ivoire. (Times-Gazette, November 16, 2008) The P-3 designation is reserved for applicants who are the “parent, spouse, or minor child by certain legal residents in the United States.” On October 22, 2008, the State Department stopped accepting applications for the P-3 Program. Furthermore, the Department will be working closely with DHS officials to determine how to handle the applications that have already been submitted this year, as well as the 36,000 refugees who have entered through the program. (State Department Fact Sheet, November 18, 2008)

Lieberman, Feinstein Oppose Visa Waiver Expansion

Senators Joe Lieberman (ID-CT) and Dianne Feinstein (D-CA) have both expressed opposition to the Department of Homeland Security’s (DHS) decision to expand the Visa Waiver Program (VWP) to seven new countries. Under the expansion, citizens from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea will now be able to travel to the United States for business our tourism for stays of up to 90 days without a visa. (DHS Fact Sheet, November 17, 2008)

According to FY2007 State Department statistics, all seven of the new VWP nations have nonimmigrant visa refusal rates higher than three percent – a fact that, prior to the signing of the 9/11 Act in August 2007, would have barred these countries from VWP admittance. (State Department statistics) The 9/11 Act, however, allows the Departments of State and Homeland Security to waive the three percent maximum. This provision was only to take effect after DHS was able to certify that 1) an air traveler exit system was in place that could verify the departure of 97 percent of foreign nationals who exit through U.S. airports and 2) an electronic travel authorization system (ESTA) was in place and fully operational. (DHS Fact Sheet, June 3, 2008)

On Thursday, November 13th, DHS Secretary Michael Chertoff announced that his Department had made the two certifications necessary to expand the program to the seven new countries. Lieberman, who chairs the Senate Homeland Security and Governmental Affairs Committee, issued a press release the following day in which he lamented the ESTA certification. ESTA requires visa waiver travelers to electronically submit their names before traveling to the United States so that they can be checked against terrorist databases. (Senator Lieberman’s Press Release, November 14, 2008)

Noting that he was “concerned that DHS moved hastily to certify the electronic travel authorization before it is capable of doing what it is supposed to,” Lieberman pointed out several problems with ESTA in the press release, including:

  • It will not be working “at full tilt” in the immediate future;
  • Airlines currently are unable to determine whether travelers from VWP countries have obtained an ESTA travel authorization; and
  • A series of problems DHS has faced in creating ESTA, including addressing possible increases in consular workloads and dealing with the impact of the system on air and sea carriers. (Id.)

Feinstein, who chairs the Senate Judiciary Subcommittee on Terrorism, Technology, and Homeland Security, addressed the air traveler exit system in her press release, pointing out that DHS has certified that it can only track 97 percent of foreign nationals who exit through U.S. airports, not whether 97 percent of individuals who enter the country under the VWP actually leave. The premature certifications prompted Feinstein to refer to the VWP as “our Achilles’ heel,” adding that “by not accurately tracking those who enter and exit this country, this program allows foreign visitors to exploit our immigration laws.” (Senator Feinstein’s Press Release, November 17, 2008) Feinstein says that she intends “to introduce legislation to tighten the visa waiver program that would require audits, ensure that U.S. and international law enforcement share data on stolen passports and limit the overstay rates of countries considered eligible for the program.” (Id.)

USCIS Revises Religious Worker Visa Regulations

In an effort to reduce fraud and abuse, U.S. Citizenship and Immigration Services (USCIS) has announced the publication of a final rule that will amend federal regulations related to the religious worker visa program. The new rule attempts to address high levels of fraud in the religious worker program by strengthening visa petitioning requirements and addressing onsite petitioner inspections. The rule also seeks to aid petitioners by lending further transparency and clarity to the religious worker petition process. (USCIS Questions and Answers, November 21, 2008)

In order to reduce fraud through stricter petitioning requirements, the new rule will:

  • Require employers to submit a formal petition for temporary religious workers;
  • Require individuals seeking nonimmigrant religious worker visas to provide U.S. consular officers with an approved Form I-129, Petition for Alien Worker, for stateside review of legitimacy (Prior to the publication of the new rule, foreign religious workers were able to request visas without any previous stateside review of the job offer or religious organization); and
  • Reduce the initial period of admission for a nonimmigrant religious worker from 36 months to 30 months, thereby allowing USCIS an earlier opportunity to review whether or not the terms of the visa have been met before deciding to extend the individual’s stay. (USCIS Update, November 21, 2008)

The new rule also amends federal regulations related to reviews of religious organizations that petition for workers through the program by:

  • Providing for increased compliance reviews, inspections, verifications, and evaluations of religious organizations (Id.); and
  • Notifying petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious workers. (USCIS Fact Sheet, November 21, 2008)

In August 2005, USCIS’s Office of Fraud Detection and National Security (FDNS) conducted a benefit fraud assessment of the religious worker program. FDNS reviewed 220 religious worker petitions, of which 72 (32.73%) resulted in a finding of fraud. (FDNS Summary, July 2006) In one of these fraudulent cases, FDNS found that the address used by a religious group that had filed a petition on behalf of a male applicant was an apartment in an apartment complex. Record checks revealed that this address had been used by an individual suspected of membership with a terrorist organization. (Id.)

USCIS Acting Director Jonathan Scharfen was optimistic that the new rule would successfully balance addressing the problems found in the FDNS assessment with the needs of religious organizations: “We are confident that the final rule will not only help eliminate fraud from the program, but also will guarantee the continuation of an important and valuable program for genuine religious organizations.” (USCIS Update, November 21, 2008)

The new rule also fulfills one of the requirements in the Special Immigrant Nonminister Religious Worker Program Act, PL 110-391. Special immigrant categories for nonminister religious workers expired on October 1. However, President Bush extended this program for six months when he signed PL 110-391 into law on October 10. Under the law, however, the extension was not to take effect until the DHS published final regulations reducing or eliminating fraud, issued a certification to Congress, and published a notice in the Federal Register that these regulations had been issued and were now in effect. Now that the regulations are published and in effect, USCIS has resumed the acceptance and processing of nonminister special immigrant religious worker petitions. (USCIS Questions and Answers, November 21, 2008)

More Aliens May Qualify for 1986 Amnesty

US Citizenship and Immigration Services (USCIS) has announced that it will begin accepting applications for a class of aliens who were denied amnesty under the Immigration Reform and Control Act (IRCA) of 1986 because of issues as to whether their unlawful status was “known to the government.” This decision stems from a September 9, 2008 class action law suit settlement agreement in the case. (USCIS Press Release, November 3, 2008)

IRCA granted amnesty to almost 3 million illegal aliens in 1986, while another 250,000 applications were denied. Three class-action lawsuits have been filed against USCIS (formerly known as Immigration and Naturalization Services) since the 1986 amnesty bill was signed into law. Four years ago, a settlement gave amnesty to about 2,000 illegal aliens. USCIS spokeswoman Sharon Rummery has estimated that approximately 10,000 additional illegal aliens may qualify for amnesty as a result of the new settlement. (Statesman Journal, November 18, 2008)

The settlement allows a class of aliens whose applications were denied for certain reasons to move to reopen their applications with USCIS for review under legal standards agreed upon in the settlement. (Northwest Immigrant Rights Project v. United States Citizenship and immigration Services)

The settlement agreement requires applicants to meet three general requirements to be eligible:

  • An applicant must have entered the United States on a non-immigrant visa prior to January 1, 1982.
  • The applicant must have lived continuously and illegally in the United States from prior to January 1, 1982 until some time between May 5, 1987 and May 4, 1988 when the applicant visited the then Immigration and Naturalization Service (INS) office to apply for legalization under the 1986 law.
  • The applicant has not been convicted of certain criminal offenses, including: one felony or three misdemeanors in the US; any crime of moral turpitude; or any drug offense except possession of marijuana under 30 grams. (Id.)

Additionally, the alien must fall into at least one of the following three categories:

  • The alien violated their nonimmigrant status prior to January 1, 1982, and the violation of the status is evident based on government files.
  • The alien entered the U.S. prior to January 1, 1982 as a student or temporary worker and failed to maintain that status.
  • After January 1, 1982 the alien obtained some immigration benefit for which the alien was not entitled. (Id.)

Finally, the alien must have made a significant effort to apply for amnesty during the 1987-88 application period. Such efforts include attempting to apply, but being advised that the alien was ineligible or being refused an application form. (Id.) Illegal aliens will be granted a one-year period to reapply for the new amnesty, beginning February 1, 2009. A $585 reapplication fee will be charged for illegal aliens who were wrongly rejected under the 1986 amnesty and meet the qualifications, while illegal aliens who never applied but still qualify will be charged $1,130. Applying for amnesty does not guarantee that an illegal alien’s status will be changed; however, the government cannot deport those who apply even if their applications are rejected. (Statesman Journal, November 18, 2008)
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.