U.S. Legislative Immigration Update January 19, 2010

Right Side News Reports from the Federation for American Immigration Reform in this January 19th, 2010 Legislative Weekly

• Homeland Security Grants Haitians Temporary Protected Status
• Immigration Enforcement Agents Drive Illegal Aliens to Work
• Representatives Call for End to Visa Lottery
• New Jersey Abandons In-State Tuition for Illegal Aliens
• Immigration Lawyers Turn a Profit Recruiting Foreign Nationals for Wealthy Investor Visa Program

Homeland Security Grants Haitians Temporary Protected Status

Last week, in response to the earthquake in Haiti, Homeland Security Secretary Janet Napolitano announced that the government would grant Temporary Protected Status (TPS) to Haitians present in the United States as of January 12, 2010. (DHS Press Release, January 15, 2010). Of particular controversy is DHS’s granting of such status regardless of whether they were in the country legally or illegally. Secretary Napolitano noted that TPS designation will allow Haitian nationals in the United States to continue living and working here for the next 18 months. Id. Napolitano estimated that there are 100,000 to 200,000 Haitians in the U.S. illegally who will benefit from Friday’s TPS declaration. (Wall Street Journal, January 16, 2010).

The announcement follows DHS’s earlier decision last week to halt deportations of Haitians who were in the U.S. illegally, even those already in detention. (Associated Press, January 15, 2010). There are currently 30,000 Haitians in the United States with deportation orders, and tens of thousands of others who haven’t been caught. (Center for Immigration Studies, January 13, 2010).

Many are concerned the Obama administration’s decision to grant TPS will result in a flood of refugees to the U.S. from Haiti. In making her announcement, Secretary Napolitano herself seemed eager to discourage this, stating unequivocally that Haitians who arrived in the United States after January 12, 2010 would not be eligible for TPS status. (USA Today, January 15, 2010). Echoing this message, Haiti’s Ambassador to the U.S. told Haitians: “Listen, don’t rush on boats to leave the country…If you think you will reach the U.S. and all the doors will be wide open to you, that’s not at all the case. And they will intercept you right on the water and send you back home where you came from.” (New York Times, Jan. 19, 2009). Still, DHS officials are preparing for the possibility of an exodus, transferring 200 illegal immigrants from a federal jail in Miami for to make room for a possible influx of Haitian migrants. (Id.)

In addition to its potential for encouraging a new wave of refugees, the decision to grant TPS status is controversial because the program has been abused to the point where critics call it a form of amnesty. TPS was designed to provide temporary refuge for aliens whose personal safety would be endangered by returning to their home country for reasons which include ongoing armed conflict, an environmental disaster, or other extraordinary conditions. (INA § 244, 8 U.S.C. 1254a). The U.S. government, however, has made a practice of granting TPS status to illegal aliens in addition to legal aliens-aliens who have broken our laws and never had any intention of leaving the U.S. anyway. These beneficiaries not only receive protection from removal, they also receive work permits.

Then, instead of removing these aliens when their TPS status expires, the U.S. government has repeatedly extended their TPS status, often for years. (The Miami Herald, January 14, 2010). In the case of Salvadoran nationals, for example, the crisis that triggered the granting of TPS status occurred more than a decade ago. (Stein Report, January 14, 2010). Now, more than 300,000 people from seven countries, including El Salvador, Honduras, Nicaragua, Somalia, and Sudan, currently live in the U.S. with TPS status. (ABC News, January 15, 2010; National Journal, January 13, 2010).

FAIR has taken a leadership role in calling upon the Obama administration to set a specific end date on any designation of TPS for Haitians, and to end TPS status for other groups where the triggering crisis has long since subsided. (FAIR Press Release; USA Today, January 14, 2010). The Obama Administration has said that TPS for Haitians would last 18 months, but has not taken steps to end TPS status for other groups.

Immigration Enforcement Agents Drive Illegal Aliens to Work

In a stunning shift in policy, Immigration and Customs Enforcement (ICE) agents last week apprehended approximately 60 illegal aliens en route to shovel snow at a Boston stadium and then drove them back to work. The illegal aliens had been hired by a temp firm to shovel snow at Gillette Stadium before the New England Patriots playoff game. (Providence Journal, January 9, 2010). The federal agents found the illegal aliens, most from Guatemala, in four unmarked vans that were stopped as part of a search for fugitives who had ignored deportation orders. (Boston Globe, January 12, 2010).

According to the aliens themselves, ICE agents took them to a local police station where they were fingerprinted and photographed. (Boston Globe, January 12, 2010). ICE agents kept only seven of the illegal aliens in federal custody who were wanted and released the other forty-nine because they had no criminal records or outstanding deportation orders. (Providence Journal, January 13, 2010). ICE agents drove the released aliens to Gillette stadium to work and instructed them to report back to ICE for a determination of their immigration status.

The incident provides clear evidence that the Obama Administration has revived the highly-criticized “catch and release” policy. Catch and release was the common name for a Border Patrol policy that instructed agents to apprehend and process illegal aliens, but release them with a notice to appear in court. Naturally, the vast majority of illegal aliens simply disappeared, in many cases moving elsewhere within the United States to settle down and work illegally. This policy was widely criticized as ineffective and counterproductive, and the Border Patrol abandoned it in 2005.

True immigration reformers were concerned that the Obama Administration was signaling a return to catch and release when it issued new worksite enforcement guidelines in May. (See FAIR Legislative Update, May 4, 2009) Of particular concern was the portion of the new guidelines which stated: “ICE will continue to fulfill its responsibility to arrest and process for removal illegal workers encountered during worksite enforcement operations.” (emphasis added) No mention was made of detaining aliens while processing them for removal. Now, with the release of the illegal aliens detained last week, it is clear that the Obama Administration has no intention of detaining illegal aliens it apprehends, even in fugitive operations.

For those aliens who wish to fight their removal in court, the Guatemalan government has hired a Miami-based law firm to provide free legal aid to the aliens, which is being coordinated through the Guatemalan consulate. (Providence Journal, Jan. 13, 2010). Consul General Carlos Escobedo told the aliens: “We are here as a government to support you and help you,” he said as lawyers prepared to work with each immigrant. “You are not alone.” (Boston Globe, Jan. 12, 2010) Miguel Angel Ibarra, the Guatemalan vice minister of foreign affairs, called on the Obama Administration to halt deportations. Id.

Meanwhile, Gillette Stadium immediately terminated its agreement with the vendor who hired the illegal workers. Id. Stacey James, spokesman for the stadium and the Patriots, stated, “We believe in accountability, and we believe this company should be accountable for their actions…there’s a process here, and this company has violated that working trust, and they’re not going to earn our business going forward.” Id.

A Department of Homeland Security spokesman declined to confirm or deny the incident. However, Rep. Lamar Smith, Ranking Member of the House Judiciary Committee blasted the Administration’s actions: “The Obama administration has reinstated the failed catch-and-release policies of the past and has even gone so far as to turn federal law enforcement officers into taxi drivers to get illegal immigrants back to their illegal jobs!” (Press Release, January 12, 2010).

Representatives Call for End to Visa Lottery

As the American people continue to express concern over national security issues, Representatives Bob Goodlatte (R-VA) and Lamar Smith (R-TX) have renewed the push to end the so-called “diversity visa” lottery program. Established in 1990, the visa lottery awards approximately 50,000 visas randomly to foreign nationals of countries considered underrepresented in immigration admissions. Unlike family-based or employment-based green cards, Diversity visa applicants do not need to have a sponsoring family member or employer, and no specific job skills or abilities are required. (See FAIR’s Visa Lottery Program Analysis).

The visa lottery program has come under scrutiny once again because of the failed Christmas Day terrorist attack of Umar Fraouk Abdulmuttallab, a 23-year-old Nigerian, who federal authorities allege operated under orders from Al-Qaeda. Several days after Abdulmuttallab failed to detonate an explosive device while aboard a Delta Airlines flight from Amsterdam to Detroit, President Obama stated that Abdulmuttallab had previously traveled to Yemen, where he “joined an affiliate of al Qaeda.” According to Obama, this affiliate “trained [Abdulmuttallab], equipped him with [the] explosives and directed him to attack that plane headed for America.” (CNSNews, January 5, 2010).

While Abdulmuttallab entered the United States on a tourist visa instead of a diversity visa, Reps. Goodlatte and Smith have expressed concern that al Qaeda could game the visa lottery program to gain access to the United States. In 2010, more than 6,000 diversity visas will be issued to applicants from Abulmuttallab’s native Nigeria. (State Department Fact Sheet). Over the past decade, more than 1,000 of these visas have been granted to nationals of Yemen – the same country where Abdulmuttallab joined al Qaeda. (CNSNews). The lottery also awards visas to nationals from all four countries that the United States considers to be state sponsors of terror (Iran, Sudan, Cuba, and Syria), in addition to 13 of the 14 nations that the Transportation Security Administration (TSA) has brought under special monitoring as sources of terrorism. (FOXNews, January 7, 2010).

Recognizing the inherent security risks associated with the visa lottery, Reps. Goodlatte and Smith sent a letter to House Judiciary Committee Chairman John Conyers (D-MI), urging Conyers to allow the committee to consider legislation that would end the program. Congressman Goodlatte introduced the “Visa Lottery Elimination Act” on May 7, 2009 (H.R. 2305), but Conyers has refused to allow the bill to come before the Judiciary Committee for consideration. Smith, who serves as Ranking Member of the Judiciary Committee, described the lottery as “a dangerous game with our national security.” Goodlatte said that the lottery allows “[t]hose in the world who wish us harm [to] engage in [a] statistical gamble with nothing to lose.” (Goodlatte Press Release, January 7, 2010). Goodlatte further pushed the issue in a January 12, 2010 speech on the House floor. (Congressional Record, January 12, 2010).

Goodlatte and Smith are not alone in their criticism of the visa lottery. In 2007, the nonpartisan Government Accountability Office (GAO) issued a report indicating that the lottery “is vulnerable to fraudulent activity committed by and against applicants.” That same report stated that “widespread use of fake documents, such as birth certificates, marriage certificates, and passports, presented challenges when verifying the identities of applicants and dependents.” (GAO Report, September 2007). In June 2005, the State Department’s Inspector General testified before Congress that “the Diversity Visa program contains significant risks to national security from hostile intelligence officers, criminals, and terrorists attempting to use the program for entry into the United States as permanent residents.” (Hearing Transcript, June 15, 2005).

Proponents of mass immigration in Congress, however, are fighting to maintain – and even expand – the lottery. Rep. Sheila Jackson-Lee (D-TX) has sponsored legislation containing a provision that would double the amount of diversity visas offered each year (H.R. 264), and Judiciary Committee Chairman Conyers has praised the lottery for allowing “many people of color to immigrate to the United States and pursue the same American dream that many of the ancestors of the members [of Congress] here were able to pursue.” (GovTrack, December 16, 2005). Conyers’ position likely diminishes the chances of Goodlatte’s bill seeing legislative action this year.

New Jersey Abandons In-State Tuition for Illegal Aliens

Marking a victory for true immigration reformers, New Jersey lawmakers last week abandoned legislation that would grant in-state tuition to illegal aliens. (The Star-Ledger, January 12, 2010). The bill had been lingering in the New Jersey state legislature for eight years, and amnesty advocates were frantic to pass it before Governor-elect Christie, who opposes the measure, takes office this month. These advocates engaged in a frantic, but unsuccessful, push to get the New Jersey Assembly and Senate to vote on the bill last week. (FAIR’s Legislative Update, January 11, 2010).

The bill’s sponsor, however, admitted defeat by removing the legislation from the agenda because it lacked the votes necessary for passage. (The Star-Ledger, January 12, 2010). Last Monday was the final day the New Jersey legislature could have passed the bill in time for outgoing Governor Corzine to sign it.

In the end, New Jersey lawmakers were unwilling to grant benefits to illegal aliens during a time of economic uncertainty. New Jersey Assemblyman Samuel Thompson stated, “You can call it undocumented. You can call it whatever you want. But you are not legal, and you are not entitled.” (CNN, January 12, 2010). Although supporters are determined to reintroduce the bill, Christie has vowed to oppose any legislation giving in-state tuition to illegal aliens. (Philadelphia Inquirer, January 11, 2010).

Immigration Lawyers Turn a Profit Recruiting Foreign Nationals for Wealthy Investor Visa Program

With the unemployment at a 25-year high, demand for H-1B visas – which allow foreign workers to work in the United States in certain “specialty” occupations – has dropped off significantly. Accordingly, immigration law firms have been forced to find other work, and recent media reports are indicating that these firms have refocused their efforts on recruiting foreign nationals to come to the United States under the EB-5 visa category. (Law.com, January 12, 2010). These efforts have contributed to an almost threefold increase in the number of EB-5 visas issued from Fiscal Year (FY) 2008 to FY2009. (The Washington Post, January 10, 2010).

The EB-5 program grants two-year conditional visas to individuals seeking permanent residence based on their involvement in a new commercial enterprise. These visas are also available for the investors’ immediate family members. Investors can qualify for an EB-5 visa in three ways:

• Under the first option, a foreign national is required to invest $1 million in a commercial enterprise. After the two-year conditional period has expired, the visa holder must prove that the enterprise directly created ten full-time U.S. jobs in order to receive legal permanent resident status.
• EB-5 visas are also issued to foreign nationals who invest $500,000 in enterprises located in rural areas – with populations of less than 20,000 – or in areas with unemployment rates at 150 percent or more of the national unemployment rate. As with the first option, the granting of legal permanent resident status is made contingent upon whether or not the enterprise directly created ten full-time U.S. jobs.
• Under a so-called “Immigrant Investor Pilot Program,” foreign nationals can combine their investments in “regional centers.” Investors may prove that their enterprises either directly or indirectly created ten U.S. jobs, and they must meet the employment requirement at the end of the two-year conditional period to qualify for adjustment to legal permanent resident status.

About 10,000 visas are set aside annually for the EB-5 program, with 3,000 of these reserved for the Immigrant Investor Pilot Program. (8 U.S.C. 1153 (b)(5)).

The recent economic downturn has forced immigration lawyers to turn away from H-1B visa applications, which one lawyer has described as the “bread and butter work” for many immigration firms, and instead refocus their efforts on the EB-5 program. In fact, a recent report states that one immigration lawyer has “spent much of his time recently traveling overseas in an attempt to educate foreign investors about the program.” (Id.). In FY2008, 1,443 EB-5 visas were issued to foreign investors and their family members. In FY2009, however, more than 4,200 were issued. (The Washington Post). The recent boom has prompted one immigration lawyer to describe the EB-5 program as “the hottest thing going on right now in immigration.” (Law.com).