Right Side News Reports from the Federation for American Immigration Reform in this July 13, 2009 Legislative Weekly…

  • Senate Adopts Common-Sense Enforcement Measures as Part of DHS Appropriations Bill
  • Obama, Napolitano Scrap DHS No-Match Rule, Affirm E-Verify Rule for Federal Contractors
  • Homeland Security Announces Changes to 287(g) Program
  • Schumer Pushes Amnesty Bill by Labor Day, Despite the Objections of the American People



Senate Adopts Common-Sense Enforcement Measures as Part of DHS Appropriations Bill

Last week, four true immigration reformers in the U.S. Senate were able to attach amendments to the Fiscal Year (FY) 2010 Homeland Security spending bill. While the adoption of these amendments represented long-awaited legislative victories for advocates for the enforcement of federal immigration laws, last week’s accomplishments do not guarantee that the measures will be signed into law.

The four amendments include:

  1. Sessions E-Verify Amendment #1371 – Offered by Senator Jeff Sessions (R-AL), Amendment #1371 makes the E-Verify program permanent. E-Verify is the online, electronically operated system that allows employers to quickly and easily check the work authorization status of their new employees. (For more on E-Verify, see FAIR’s E-Verify Backgrounder).  In addition to making this valuable program permanent, the Sessions Amendment requires all employers who do business with the federal government to use E-Verify on their new hires, as well as existing employees assigned to affected federal contracts.

    The adoption of the Sessions Amendment did not come without opposition. Senator Chuck Schumer (D-NY) – a well-known amnesty advocate and chairman of the Senate Judiciary Immigration Subcommittee – gave floor speeches on Tuesday, July 7 and Wednesday, July 8 in which he urged his fellow senators to oppose the Sessions Amendment. (See Schumer’s speeches from July 7, 2009 and July 8, 2009). On July 8, Schumer offered a motion to table – or kill – the amendment. However, the Senate supported the Sessions Amendment by rejecting Schumer’s motion on a 44-53 vote. (Senate Roll Call Vote #219, July 8, 2009).

    Following the vote on the motion to table, the Senate agreed by a voice vote to adopt a second degree amendment offered by Senator Patrick Leahy (D-VT) that added language to the Sessions Amendment to permanently authorize the EB-5 Immigrant Investor Regional Center pilot program. (Senator Leahy Press Release, July 8, 2009). This program sets aside 3,000 visas annually for wealthy foreign investors. Following the adoption of Leahy’s second degree amendment, the Senate approved the Sessions Amendment by a voice vote. (Congressional Quarterly, July 9, 2009). 


  2. DeMint Border Fence Amendment #1399 – Offered by Senator Jim DeMint (R-SC), Amendment #1399 requires the Department of Homeland Security (DHS) to complete almost 700 miles of double-layered reinforced fencing along the southwest border by the end of 2010. (Senator DeMint Press Release, July 8, 2009). The DeMint Amendment would direct DHS to complete the border fence as Congress originally intended when it passed the Secure Fence Act of 2006.  DHS has been constructing fencing that would prevent vehicular border crossings, but the DeMint Amendment will ensure that the border fence will also reduce illegal alien foot traffic.

    Under the Secure Fence Act, the federal government was instructed to complete “at least 2 layers of reinforced fencing” along a total of about 670 miles of the U.S.-Mexico border before the end of 2008. (Secure Fence Act of 2006). However, in December 2007, Senator Kay Bailey Hutchison (R-TX) successfully attached an amendment to the 2008 Consolidated Appropriations Act that effectively gutted the two layer reinforced fencing requirement by giving DHS the discretion to construct other types of barriers to count toward the 670 mile total. (Consolidated Appropriations Act, 2008, December 26, 2007). As a result, the Government Accountability Office (GAO) reported in January 2009 that only 32 miles of double-layered fencing had been built, and that DHS had no intention to significantly add to that total. (GAO Report, January 29, 2009). The DeMint Amendment restores DHS’ original mandate to complete the entire 670-mile southwest border fence using only double-layered, reinforced fencing. On July 8, the Senate voted 54-44 to adopt the DeMint Amendment. (Senate Roll Call Vote #220, July 8, 2009).


  3. Vitter “No-Match” Amendment #1375 – Offered by Senator David Vitter (R-LA), Amendment #1375 prohibits any of the funding in the FY2010 Homeland Security spending bill from being used to rescind a DHS final rule that provides a method for DHS to notify employers when there are mismatches between names and social security numbers provided by their employees and to instruct employers on how to deal with these so-called “no-match” letters. The Senate approved the Vitter Amendment on July 9 by a voice vote. (Senator Vitter Press Release, July 9, 2009).

    The adoption of the Vitter Amendment came just one day after the Obama Administration announced its intention to rescind the No-Match rule. (DHS Press Release, July 8, 2009).  If Senator Vitter’s amendment survives conference, it will not take effect will until October 1, 2009.  The Obama Administration could rescind the No-Match rule before the Vitter Amendment goes into effect.


  4. Grassley E-Verify Amendment #1415 – Offered by Senator Charles Grassley (R-IA), Amendment #1415 would give employers who are enrolled in E-Verify the option to use the program to check the work authorization status of existing employees in addition to new hires. Currently, E-Verify can only be used to check the status of new hires. The Grassley Amendment was adopted by a voice vote on July 9. (Senator Grassley Press Release, July 9, 2009). The benefit of the Grassley Amendment is that employers would be able to begin using E-Verify to ensure that all of their employees are legal – not just their new hires. This would help free up jobs currently held by illegal aliens so that out-of-work Americans could apply for those jobs.

Also on July 9, the Senate adopted one other immigration-related amendment (Amendment #1428) to the FY2010 Homeland Security spending bill. Sponsored by Senator Orrin Hatch (R-UT) and adopted by voice vote, Amendment #1428:

  • Reauthorizes the Special Immigrant Non-Minister Religious Worker Visa Program for three years. This program, which would otherwise expire in September, provides 5,000 visas annually for foreign non-minister religious workers to enter the United States to perform work for religious institutions. U.S. Citizenship and Immigration Services has found that the Religious Worker Visa Program is highly susceptible to fraud. (Office of Fraud Detection and National Security Fraud Assessment Summary, July 2006).
  • Reauthorizes the Conrad 30 Program for three years. The Conrad 30 program, which would also otherwise expire in September, allows foreign doctors who attend school in the United States to extend their stay if they agree to practice in medically underserved communities for three years.
  • Eliminates the requirement that an alien widow or widower of a deceased U.S. citizen must have been married to the citizen for a minimum of two years or face the automatic denial of a marriage-based petition for a green card application. (Senator Hatch Press Release, July 10, 2009). Under current law, a citizen may petition for a green card on behalf of his or her alien spouse. However, current law provides that the petition for a green card for a widow or widower alien whose spouse dies before the couple has been married for two years must ultimately be denied. This provision is designed to prevent marriage fraud. (See FAIR’s Legislative Update, June 15, 2009).

The Senate voted to pass the FY2010 Homeland Security spending bill on July 9 by a vote of 84-6. (Senate Roll Call Vote #229, July 9, 2009). The bill will now move to a House-Senate conference to resolve the differences between the House and Senate versions of the legislation. Since the House version of the bill does not contain any of the amendments listed above, the Conference Report could include or drop any combination of these measures.

Obama, Napolitano Scrap DHS No-Match Rule, Affirm E-Verify Rule for Federal Contractors

The Obama Administration and the Department of Homeland Security (DHS) made two policy announcements this week.  The first will help illegal aliens keep their current jobs and make it easier for illegal aliens to commit Social Security fraud.  The second merely restates a Bush-era regulation regarding the use of E-Verify by federal contractors.

On Wednesday, July 8, DHS Secretary Janet Napolitano announced that the Obama Administration would finally implement a Bush-era federal regulation that would require most federal contractors to use E-Verify, the federal government’s employment verification program.  The DHS press release praised the effectiveness and reliability of E-Verify, saying the program represents a “smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce.”  According to DHS, E-Verify scored high marks in terms of accuracy, reliability, and user convenience and satisfaction. Secretary Napolitano also reiterated that E-Verify is federally funded and is made available to employers at no cost.  (DHS Press Release, July 8, 2009).

Despite the welcome news that DHS would begin to require federal contractors to use E-Verify for future contracts, the announcement comes after the Obama Administration delayed this same Bush-era rule on three separate occasions.  In the release, Secretary Napolitano noted that DHS will not be applying the regulation until September 8, 2009. (Id.).  This means that more than seven months’ worth of federal contracts, including many stimulus contracts, will have been signed by the Obama Administration before this regulation that will protect American jobs will go into effect.  (Examiner.com, July 8, 2009; GovernmentExecutive.com, July 8, 2009; and Human Events, July 9, 2009).

Secretary Napolitano also announced that DHS would rescind the so-called “No-Match Rule.”  (DHS Press Release, July 8, 2009 and National Review, July 8, 2009).  Under the No-Match Rule, the Social Security Administration (SSA) would have been required to notify employers who report earnings for at least ten employees whose names do not match their Social Security numbers (SSNs).  The rule would have required that employers double-check their records for accuracy and then have employees work to correct any discrepancies.  When DHS announced the No-Match Rule in October 2008, the Department stated: “there is a substantial connection between social security no-match letters and the lack of work authorization by some employees whose SSNs are listed in those letters.” Additionally, DHS cited a private study that concluded that ”most workers with unmatched SSNs are undocumented immigrants.”  (No Match Final Rule, October 8, 2008).  Last week, Napolitano ignored the role the No-Match Rule could play in immigration enforcement and instead attributed most Social Security no-match letters to “typographical errors or unreported name changes.” (DHS Press Release, July 9, 2009).

DHS’ announcement came on the same day that the U.S. Senate adopted two amendments to the Fiscal Year (FY) 2010 Homeland Security spending bill. An amendment offered by Senator Jeff Sessions (R-AL) would require all federal contractors to use E-Verify to check the work authorization status of all new hires, as well as employees assigned to work on federal contracts. Additionally, an amendment offered by Senator David Vitter (R-LA) would prohibit any funding in the Homeland Security spending bill from being used to rescind the No-Match rule.  If these amendments survive the conference process and are signed into law, they would preempt the administration’s announcement.

Homeland Security Announces Changes to 287(g) Program

Late last week, Homeland Security Secretary Janet Napolitano announced that U.S. Immigration and Customs Enforcement (ICE) will alter the process that state and local law enforcement agencies must follow in order to participate in the 287(g) program.  The 287(g) program – named for the section of the Immigration and Nationality Act that authorizes the program – allows ICE to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws.

In order to participate in 287(g), state and local law enforcement agencies are required to enter into a Memorandum of Agreement (MOA) with ICE. According to ICE, MOAs are designed to define “the scope and limitations of the authority to be designated” under 287(g). An MOA also establishes “the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA.” (ICE Fact Sheet). Napolitano’s announcement last week indicated that ICE has “standardized the Memorandum of Agreement (MOA) used to enter into ‘287(g)’ partnerships.” (DHS Press Release, July 10, 2009). According to the DHS press release, the new MOA “aligns 287(g) local operations with major ICE enforcement priorities – specifically, the identification and removal of criminal aliens.” The new MOA, the press release says, is meant “to address concerns that individuals may be arrested for minor offenses as a guise to initiate removal proceedings.” (Id.).

According to the author of the legislation that created 287(g) (House Judiciary Committee Ranking Member Lamar Smith (R-TX)), the new, one-size-fits-all, Washington-knows-best MOA approach contradicts with the legislative intent of the program. Smith noted at a House Homeland Security Committee hearing in March that “the goal was to really enable those local law enforcement authorities who wanted to enforce the immigration laws in whatever way they thought best…and that’s really a decision made by the government in individual situations.” (House Homeland Security Committee Hearing, March 4, 2009).

In addition, ICE’s new emphasis on aligning 287(g) with “the identification and removal of criminal aliens” is another departure from Congress’ intent. According to Smith, 287(g) MOAs should be tailored to suit the needs of law enforcement agencies who elect to participate in the program, “and that might or might not include those who have committed serious crimes.” (Id.).  DHS’ announcement eliminates much needed flexibility in the program that has helped local government tailor the MOAs to meet their local needs.  A January 2009 Government Accountability Office (GAO) report confirming Rep. Smith’s statement regarding the focus of the 287(g) program calls into question the DHS decision, which could dramatically undermine the effectiveness of the program.  According to GAO, “Section 287(g) and its legislative history do not detail…which removable aliens should be prioritized for removal.”  (GAO Report, January 2009).

That same GAO report highlighted statistics indicating the success and popularity of 287(g). GAO analyzed data from 25 agencies that participated in 287(g) during FY2008 and found that the agencies had arrested 43,000 aliens and turned 34,000 over to ICE.  Of the aliens turned over to ICE, 41% were placed in removal proceedings and an additional 44% agreed to voluntary removal. (Id.).  In a separate report issued in March 2009, GAO noted that demand to join 287(g) was high: “as of February 2009…ICE had 42 additional requests for participation.” (GAO Report, March 4, 2009). Last week’s announcement from Secretary Napolitano indicated that only eleven more agencies had signed MOAs with ICE. (DHS Press Release, July 10, 2009). According to Kris Kobach – Senior Counsel for the Immigration Reform Law Institute (FAIR’s legal affiliate) – agencies who were participating in 287(g) prior to the changes to the MOA had found the program to their liking: “Anyone is free to leave the program. No one has.” (East Valley Tribune, April 2, 2009).

Schumer Pushes Amnesty Bill by Labor Day, Despite the Objections of the American People

Last week, Senator Chuck Schumer (D-NY), chairman of the Senate Immigration Subcommittee, declared that he expects to have a new amnesty bill ready by Labor Day. (The Associated Press, July 8, 2009).  This announcement came on the heels of a report released by an Independent Task Force of the Council on Foreign Relations (CFR) (The Washington Post, July 9, 2009), co-chaired by former Florida governor Jeb Bush and former Clinton White House chief of staff Thomas McLarty. The Task Force concluded that an amnesty program “is necessary and warranted for many illegal immigrants living in the United States.” (Council on Foreign Relations Independent Task Force Report No. 63, July 8, 2009).

Senator Schumer’s declaration and the conclusion of the CFR Task Force are out-of-touch with the views of the American people as evidenced by a recently released Rasmussen poll.  According to Rasmussen, this latest push for amnesty comes at a time when most voters don’t view immigration as a priority issue. Instead of passing an amnesty bill, 66% of likely voters say it is very important for the government to improve its enforcement of the borders and reduce illegal immigration.  In addition, 75% of voters believe that the federal government is not doing enough to secure the nation’s borders. (Rasmussen Reports, July 7, 2009).  The American people understand that amnesty would allow the more than 12 million illegal aliens in the United States to begin openly competing for any available jobs with the nearly 14.7 million American workers who are currently out of work.  (See FAIR’s Amnesty and Joblessness Report, July 2009).


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.