• House Appropriators Restrict Immigration Enforcement Funding
• Supreme Court Won't Impede Border Fence Construction
• House Committee Scrutinizes Border Crossing Cards
• Department of Labor Auditing Major Immigration Law Firm
• Employees Sue ICE over Worksite Enforcement Raid

Despite the additional spending, the House DHS Appropriations bill freezes $1.4 billion in spending on border security until the agency submits planning documentation to Congress, including an "analysis of [Homeland Security's] proposed infrastructure and technology solution for individual border segments." (CQ Today, Homeland Security Spending Calls for Planning for Border Protection, June 24, 2008) Representative Harold Rogers (R-KY) objected in particular to the planning language in the bill that restricts $400 million of the $775 million appropriated for border fencing until Homeland Security submits - and both the House and Senate Appropriations Committees approve - an expenditure plan for security barriers along U.S. borders. (House Homeland Security Appropriations Bill, H.R. __, p. 8) The expenditure plan must include an analysis of a long list of items, including an analysis of every 15-mile segment of fencing or infrastructure and possible alternative means of achieving operational control. (House Homeland Security Appropriations Bill, P.12-13.)

Rep. Rogers offered an amendment striking this language, but it was defeated along party lines. He warned the committee, "The onerous consultation requirements and the detailed analysis hurdles are so pervasive, it seems like the bill is determined to actually stop the border fence in its tracks. This is clearly, to me, oversight gone overboard." (Id. CQ Today) The bill provides $775 million for border security fencing. Last year, Congress appropriated $1.2 billion. (See Committee Summary DHS Appropriations)

Committee members also expressed concern about the proposed spending level for ICE worksite enforcement. Rep. Jack Kingston (R-GA) offered an amendment to add $2.3 million to increase funds available for worksite enforcement, but the committee also rejected Rep. Kingston's amendment in a party-line vote.

Finally, members expressed concern that the DHS funding bill reflects a distinct preference for prioritizing resources on criminal aliens over other enforcement activities, such as worksite enforcement or assistance to state and local law enforcement. The bill specifically mandates that $800 million of the $4.8 billion appropriated to ICE be used for the identification and deportation of criminal aliens. Additionally, the bill requires DHS to prioritize the use of funds used to enlist the assistance of local law enforcement, commonly referred to as 287(g) funds, to "maximize the identification of aliens who are unlawfully present in the United States and have been convicted of dangerous crimes." (House Homeland Security Appropriations Bill, H.R.____ p.16.)

The Homeland Security Appropriations Bill was passed out of committee by voice vote and will travel next to the House floor.

Supreme Court Won't Impede Border Fence Construction
Before recessing for the summer, the Supreme Court announced that they would not hear an appeal brought by environmentalists to impede construction of a two mile stretch of the border fence in the San Pedro Riparian National Conservation Area near Naco, AZ. (Associated Press, Court Won't Hear Border Fence Plea, June 24, 2008)

The Defenders of Wildlife and the Sierra Club filed their petition in March challenging the Department of Homeland Security's (DHS) authority to waive up to 36 federal laws in order to build the border fence. The laws include the National Environmental Policy Act, the Endangered Species Act, the Federal Water Pollution Control Act, the National Historic Preservation Act and the Eagle Protection Act. Congress granted DHS this authority in 2005 as part of the Real ID Act. (To Read the act, click here.)

Some members of Congress expressed disappointment in the Court's decision. Homeland Security Chairman Bennie Thompson (D-MS) stated, "I am extremely disappointed in the Court's decision. This waiver will only prolong the Department from addressing the real issue, their lack of a comprehensive border security plan. Without a comprehensive plan this fence is just another quick fix," (House Homeland Security Press Release, June 23, 2008) Rep. Thompson was one of fourteen members of Congress who supported the Defenders of Wildlife petition in a friend-of-the-court (amicus) brief.

On the other side of the issue, Judiciary Committee Ranking Member Lamar Smith (R-TX) issued a statement praising the decision: "Today's decision by the Supreme Court to uphold the right of the Administration to pursue the expeditious construction of the border fence is a victory for the American people. According to recent estimates, nearly half a million illegal immigrants cross the border annually. The Court's refusal to hear the case upholds the lower court's decision and ensures that the Department of Homeland Security can carry out Congress' mandate to build a fence along the U.S.-Mexico border without legal restrictions or interference from environmentalists." (Rep. Lamar Smith Press Release, June 23, 2008)

House Committee Scrutinizes Border Crossing Cards
On June 25, the House Oversight and Government Reform Subcommittee on Government Management, Organization and Procurement held a hearing on Border Crossing Cards (BCCs). The Department of State (DOS) originally issued BCCs to aliens who resided in Mexico or Canada, allowing them to enter the U.S. under visitor status.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 required DOS to create machine-readable BCCs containing biometric identifiers to verify the identity of the cardholder. Under IIRIRA, DOS began issuing BCCs to Mexican (but not Canadian) citizens in April 1998. (See 8 USC §1101(a)(6)) BCCs issued prior to the IIRIRA were originally set to expire on October 1, 2001; however, the Enhanced Border Security Act of 2002 extended the expiration date of old BCCs to October 1, 2002. (See §601) BCCs are only valid if the cardholder enters the U.S. from the country in which they reside. The cards expire and require reissuance after a ten-year validity period. (See 8 USC §1101(a)(6)) As a result, BCCs originally issued in April 1998 began to expire in April of this year.

The State Department's Deputy Assistant Secretary for Visas, Tony Edson, testified to the urgency of the cards' expiration, estimating that more than 5.7 million cards will expire between 2008 and 2012. This will result in an annual surge of applications for new BCCs that could, according to Edson, "approach or exceed 3 million cases, well beyond the ability of our current and planned staffing for these years which could handle up to 1.8 million cases." Edson laid out a three-point strategy that the State Department plans to use to meet the increased demand, including new staffing implementation, infrastructure expansion and technology innovation. (Statement of Tony Edson, Deputy Assistant Secretary for Visas to the House Committee on Oversight and Government Reform Subcommittee on Government Management, Organization and Procurement, June 25, 2008)

As part of its technology innovation strategy, DOS plans to move some of its visa processing and BCC issuance workload to an off-site contractor. "Offsite Data Collection", or "ODC," is a pilot program currently under evaluation by the Department. Once completed, the pilot will be expanded to all visa processing posts in Mexico, as well as other "high volume posts" worldwide. The program allows the contractor - Computer Sciences Corporation - to collect visa information and biometrical data from Mexican nationals applying for BCCs. (Id.) Subcommittee Chairman Edolphus Towns (D-NY) expressed concern over the security of the pilot, saying that the committee should "take a hard look at whether this type of outsourcing will maintain security and government control of visa issuance." ("Outsourced State Dept. Visa Work Criticized by House Panel", CongressDaily, June 26, 2008)

Edson also addressed anxiety over the security of the cards themselves, highlighting the State Department's plan to begin replacing the current BCCs with a "new and much-improved…design" in the fall. Specific security features include a laser engraved photograph, personalized data inclusion and a biometric identifier. The new design is aimed at making the cards "as tamper and counter-resistant proof as possible." (Statement of Tony Edson, Deputy Assistant Secretary for Visas to the House Committee on Oversight and Government Reform Subcommittee on Government Management, Organization and Procurement, June 25, 2008)

Department of Labor Auditing Major Immigration Law Firm
In early June, the U.S. Department of Labor (DOL) announced that it is auditing all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy LLP, a New York City law firm that bills itself as a global immigration firm, with offices across the nation and overseas. On June 3rd, DOL announced that it had, "information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring qualified U.S. workers." The audits will determine if there was improper attorney involvement in consideration of U.S. worker applicants and if any applications should be denied or placed into department-supervised recruitment. (DOL Press Release, June 3, 2008)

Permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. In order to qualify, an employer must certify to the DOL that:

In turn, the DOL must certify to U.S. Citizenship and Immigration Services (USCIS) that:

• There are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and
• Employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. (Id.)

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