December 15, 2008
Immigration Law in Congress and current immigration legislation impacting Americans

  • USCIS Adjusts Agricultural Guest Worker Regulations
  • Security Concerns Raised at Secretary Chertoff’s Home
  • Enforcement, Economy Causing Many Illegal Aliens to Return Home
  • Recession Could Prevent Obama from Taking on Immigration
  • Pro-amnesty Group Meets with Obama’s Transition Team
  • Kennedy to Give Up Chairmanship of Senate Immigration Subcommittee

USCIS Adjusts Agricultural Guest Worker Regulations

U.S. Citizenship and Immigration Services (USCIS) announced last week the publication of a final rule that will make significant revisions to the regulations that govern the H-2A temporary and seasonal agricultural worker visa classification. The changes are the result of a 2007 Bush Administration pledge to address immigration challenges using existing authorities in the wake of Congress’ failure to pass the Bush-Kennedy amnesty bill. (USCIS Update, December 11, 2008)

The H-2A program allows U.S. employers to petition USCIS to bring foreign nationals to the United States to fill temporary or seasonal agricultural jobs for which U.S. workers are not available. According to USCIS, the new rule “includes mechanisms to enhance the integrity of the program, increase protection of U.S. workers, and protect H-2A workers from unscrupulous employers and recruiters.” (Id.)

A complete list of the modifications included in the final rule is available in an USCIS Questions and Answers document. Some notable changes include:

  • Easing current limitations on H-2A certified employers to petition for multiple, unnamed H-2A workers;
  •  Increasing the amount of time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay from 10 days to 30 days;
  • Decreasing the amount of time an H-2A worker who has spent three years in the U.S. must reside and be physically present outside the United States before he or she is allowed to re-obtain H-2A status from six months to three months;
  • Allowing H-2A workers who are changing from one H-2A employer to another to begin working for the new employer upon the filing of a new H-2A petition, but only if the new employer is participating in E-Verify (USCIS contends that this provision “will create an incentive for agricultural employers to enroll in the E-Verify program, thereby reducing opportunities for aliens without employment authorization to work in the agricultural sector and helping protect the integrity of the H-2A program”) Requiring employers who file an H-2A petition to first obtain an approved temporary labor certification from the Department of Labor (DOL); and 
  • Updating and strengthening an existing requirement that employers notify USCIS when an H-2A worker absconds from the worksite, is terminated, fails to show up for work on time, or completes the work early. (USCIS Questions and Answers, December 11, 2008);

USCIS’ rule has been transmitted to the Federal Register and will take effect 30 days after it is posted. (USCIS Update, December 11, 2008) The new rule supplements “extensive reforms of the H-2A program” included in another rule to be published by DOL. (Id.)

The New York Times reported last week that the DOL final rule will be published Thursday, December 18. (The New York Times, December 11, 2008)

Stay tuned to FAIR for the latest on the changes to the H-2A program.

Security Concerns Raised at Secretary Chertoff’s Home

Department of Homeland Security (DHS) Secretary Michael Chertoff may have unknowingly had illegal aliens cleaning his home for the past three years, according to reports from the Associated Press. An ICE investigation into the Consistent Cleaning Services resulted in a $22,800 fine and revealed that the cleaning company employed at least eleven workers who did not provide documents which would indicate legal work status and another nine workers who had committed identity fraud. (The Associated Press, December 12, 2008) Employer James Reid, who admits to hiring illegal aliens, protested the fine, telling a Washington Post reporter, “No one wants to put the blame on the head; they’d rather put the blame on the business owner.” (The Washington Post, December 11, 2008)

The Chertoff’s fired Consistent Cleaning Services in April after learning that ICE was investigating the company. A spokesman for Secretary Chertoff said, “As customers, the Chertoffs obtained assurances from Mr. Reid that any personnel he dispatched to their home were authorized to work in the United States.” Chertoff’s spokesman also added, “This matter illustrates the need for comprehensive immigration reform and the importance of effective tools for companies to determine the lawful status of their workforce.” (The Washington Post, December 11, 2008)

Reports regarding whether any of the illegal aliens actually cleaned Chertoff’s home are conflicting. An ICE official told the Associated Press that it is not yet clear whether the illegal aliens ever entered Chertoff’s home, though Reid says he knows of at least six illegal aliens who, as former employees, had cleaned Chertoff’s home. Regardless of whether illegal aliens in fact entered the Secretary’s home, the underlying concern of these reports is whether the officials responsible for protecting Chertoff should have checked the legal status of the cleaning crew. The AP reports that the screenings performed by the Secret Service included “criminal history checks, physical screening, and an agent escort while on the premises.” (The Associated Press, December 11, 2008) Following the story, a Washington Times editorial noted: “The fact that it took the Secret Service nearly four years to learn that people cleaning the home of a Cabinet official were in the United States illegally is a disturbing example of the compartmentalization of federal immigration and anti-terrorism law.” (Washington Times, December 12, 2008)

Enforcement, Economy Causing Many Illegal Aliens to Return Home

According to media outlets across the country, stepped up enforcement of immigration laws and the current economic decline have combined to cause many illegal aliens to decide to return home. Within the past month, newspapers and television stations reported declining illegal alien populations in Colorado, North Carolina, Florida and Pennsylvania, lending credence to statistical and anecdotal evidence pointing towards an overall decline. Recent studies by the Pew Hispanic Center (Trends in Unauthorized Immigration) and the Center for Immigration Studies (Homeward Bound) support the anecdotal evidence that illegal immigration to the United States is slowing and that illegal aliens are returning home in large numbers.

In Florida, the Miami Herald ran a series entitled, “Illegal Immigration: Changing Course.” According to the Herald, “One of the longest and most profound immigration flows is experiencing quite a reversal. The combination of stepped-up border enforcement, aggressive prosecution of illegal [aliens] and a weakening U.S. economy has done what decades of debate could not.” In addition to a considerable amount of anecdotal evidence, the articles provide statistics from several studies to substantiate the assertion that illegal aliens are returning home. One article from the Miami Herald series also refers to a 2008 Inter-American Development Bank survey that showed remittances – money sent from migrants in one country back to their home country – were flat for much of last year, and may even begin to fall this year. The survey also noted that the number of migrants sending remittances may fall by up to 25 percent in 2008, compared with 2006. (The Miami Herald, November 30, 2008)

According to MSNBC, the Mexican consul general in Denver, CO, has noticed a decline in the Mexican immigrant population in Colorado, though Arnal did not indicate whether the declining population was legal or illegal aliens. Arnal’s perception was supported by numbers from the U.S. Census Bureau that show the number of Mexicans in Colorado dropped by more than 10,000 from 2006 to 2007. The consul general specifically pointed to a package of state immigration bills that passed in 2006 as one reason for the decline. These bills created a state patrol unit with the authority to enforce immigration law during routine patrols; prohibit immigrants from receiving state services unless they can prove they are in the country legally; and require police to report anyone they believe to be in the country illegally to Immigration and Customs Enforcement (ICE). “I can tell you with certainty that Mexicans are abandoning Colorado,” said Arnal, adding that some “are considering returning to Mexico definitely.” (MSNBC, November 23, 2008)

In North Carolina, The News and Observer reported that North Carolina sheriffs departments had helped deport more than 3,000 illegal aliens in 2008. North Carolina’s Department of Public Instruction released figures in November showing that the number of Hispanic students enrolled in the state’s education system had grown by less than 9,000 in 2008. In each of the past four years, Hispanic enrollment had grown by more than 13,000. Additionally, the Mexican consulate in Raleigh has seen a surge in Mexican citizens applying for passports and seeking to secure dual citizenship for U.S.-born children – steps that would simplify a family’s return to Mexico. Durham lawyer Miguel Munoz told The News & Observer that several of his Hispanic clients had told him they were returning to their home countries and would not be coming back. Munoz pointed out that many of his clients no longer had driver’s licenses because of a change in North Carolina state law that makes it impossible for illegal aliens to renew them. This change of law, combined with the fear of law enforcement programs that allow officers to check immigration status and a weakening economy, Munoz says, has caused some Hispanics to leave the U.S. (The News and Observer, November 23, 2008)

An article in Reuters described aliens in Arizona, California, and New York who are struggling to find work in the midst of the current economic slump. In Phoenix, a Mexican national told Reuters, “At one time, I worked 10 days straight. Now, I’m lucky to get a single day. I’ve never seen it so tough.” A Salvadoran immigrant in Los Angeles noted “it’s only getting worse,” while a Venezuelan man in New York said that he had only “worked two or three days in November.” (Reuters, December 8, 2008)

Fox 29 in Chester County, PA noted several pieces of evidence indicating illegal aliens in the Philadelphia area are returning to their native countries. According to the report, “49 percent of Latino immigrants in this country for less than five years say they’re thinking about returning home.” The report notes that some towns in the area enacted their own laws because the federal government was not doing enough to combat illegal immigration. Additionally, ICE officials told Fox that arrests in the Philadelphia region are up 23 percent this fiscal year over last. Finally, the report states that many Latino immigrants “say it’s becoming much harder to find a good paying job…and many of them say they’re earning less this year than last.” (Fox 29, December 10, 2008)

Recession Could Prevent Obama from Taking on Immigration

As unemployment continues to rise and the economy continues to struggle, President-elect Barack Obama may have difficulty delivering on his campaign promise to grant amnesty to illegal aliens, some experts say. Last week, Yale Law School Professor and immigration expert Peter Schuck told the San Francisco Chronicle that immigration reform would “be on the back burner” when Obama takes office next month. (San Francisco Chronicle, December 10, 2008) “It’s a very, very delicate political issue that nobody deals with with eagerness,” Schuck added. (Id.) The unemployment rate recently reached 6.7% – its highest rate in 15 years.

Pro-amnesty Group Meets with Obama’s Transition Team

Eight representatives of the pro-amnesty Fair Immigration Reform Movement (FIRM) met last week with Tony Cuéllar, co-chair of President-elect Barack Obama’s immigration policy working group. The FIRM representatives presented Cuéllar with the details of an immigration policy proposal, including amnesty for the approximately 12 million illegal aliens currently residing in the United States; an immediate moratorium on ICE worksite enforcement operations; and “proactive efforts to help immigrants integrate.” After the meeting, Gustavo Torres – executive director of CASA de Maryland and one of the FIRM representatives present at the meeting – commented: “We have a long road ahead of us in achieving immigration reform that works for all families and supports our shared economic prosperity.” (FIRM Press Release, December 10, 2008)

Kennedy to Give Up Chairmanship of Senate Immigration Subcommittee

Senator Edward Kennedy (D-MA) announced Friday, December 5th that he is giving up his seat on the Senate Judiciary Committee. As the second most senior Democrat on the committee and the chairman of the Judiciary subcommittee on immigration, Kennedy has pushed for immigration reform including amnesty for illegal aliens. Kennedy serves on two other Senate committees and has said that he would like to dedicate more effort towards advancing health care legislation as the chair of the Health, Labor, Education and Pensions Committee. He released a statement, however, noting that he was still committed to the issues he had addressed as a member of the Judiciary Committee: “I remain deeply committed to civil rights, equal opportunities and immigration reform, and I will always be involved in those important debates and discussions.” (Roll Call, December 5, 2008)

Pro-amnesty advocates were disheartened by the news of Kennedy’s decision to leave the Judiciary panel. Randel Johnson, vice president of labor, immigration, legislation and employee benefits at the U.S. Chamber of Commerce reacted by calling Kennedy’s loss from the Committee “disappointing,” adding that “it will adversely affect immigration reform going forward. It indicates the chances of comprehensive reform happening over the next few years are slim.” (The Hill, December 8, 2008)

Senator Dianne Feinstein (D-CA) is next in line to chair the Immigration subcommittee. According to The Hill, immigration reform supporters have described Feinstein “as a ‘fair’ and ‘independent’ legislator but not as passionate an advocate as Kennedy.” (Id.) Feinstein is also in the running for the chair of the Senate Select Committee on Intelligence, a position that could divert the California Democrat’s attention away from immigration-related matters. (Id.)