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US Legislative Immigration Update September 22, 2008

September 24, 2008
FAIR has released its Legislative Immigration Update that covers the following:
  • Senate Debate Stalls E-Verify Reauthorization
  • House Panels Discuss Military Amnesty Bill and Border Security
  • Rhode Island Governor Wins E-Verify Lawsuit
  • Ninth Circuit Court Upholds Arizona Employer Sanctions Law
  • California Appellate Court Allows In-State Tuition Case to Proceed
  • New GAO Report Critical of Visa Waiver Program
  • House Finalizes Benefit Extension for Some Refugees and Asylum Seekers

Senate Debate Stalls E-Verify Reauthorization

Last Thursday, September 18th, Senators Jeff Sessions (R-AL) and Robert Menendez (D-NJ) debated multiple bills to reauthorize the E-Verify program, but were unable to reach a decision.  E-Verify is an electronic tool that allows employers to verify that they are hiring legal workers by matching identification documents against databases managed by the Social Security Administration (SSA) and the Department of Homeland Security (DHS).  The program, which is required by multiple states and for federal contractors, will expire in November if it is not reauthorized.  In July, the House passed an E-Verify reauthorization bill (H.R.6633) by a vote of 407-2, but the Senate has not brought the bill to the floor.  Rather than bringing H.R.6633 to the Senate floor, Members of the Judiciary Committee and Senate leadership have been debating the addition of extra visa provisions to an E-Verify extension bill.

The series of floor speeches and exchanges between the two Senators began last Thursday evening when Sen. Sessions made a unanimous consent motion to bring S.3257 to the Senate floor.  S.3257, the Legal Immigration Extension Act of 2008, extends the E-Verify program for five years (Sec. 5), but also extends investor visas (Sec. 2), medical student visas (Sec. 3), and non-minister religious worker visas (Sec. 4).  Sen. Sessions noted that the additional visas were the result of a compromise between Members of the Judiciary Committee.  However, he also said, "I cannot agree and this Congress and this Senate should not agree to an additional expansion of immigrants into this country as a price to continue the current law." (Congressional Record, pg. S9006)

Following Sen. Sessions' motion for a unanimous consent, Sen. Menendez, reserving his right to object, expressed his concerns that the E-Verify reauthorization provided by S.3257 was missing important provisions that had been included in H.R.6633. (Congressional Record, pg. S9007)  H.R.6633 requires that DHS enter into a reimbursement agreement with the SSA, and also provides for a Government Accountability Office (GAO) study to examine the accuracy of the E-Verify program. 

After Sen. Menendez's discussion of H.R.6633, Sen. Sessions regained the floor and asked Sen. Menendez if they could reach an agreement by bringing the House bill to the floor instead of S.3257.  To this request, Sen. Menendez replied that he would instead make a unanimous consent request to bring S.3414, the Visa Efficiency and E-Verify Extension Act of 2008, to the floor.  S.3414 extends medical student visas (Sec. 3) and non-minister religious worker visas (Sec. 4) and includes a five-year E-Verify extension (Sec. 5).  However, the bill also includes two controversial provisions which would "recapture" visas that went un-issued between 1992 and 2007, adding an estimated 550,000 extra visas to the immigration system. (S.3414 Sec.2 and Sec.3; Congressional Record, pg. S9007)

Upon regaining the floor, Sen. Sessions stated that the 550,000 visas are a "huge increase and unacceptable."  Sen. Sessions then stated that the Senate would either "go forward with the agreement that we reached in the committee, without the changes Sen. Menendez offers, or we will have to have a real debate."  Sen. Sessions concluded his floor statements by saying, "It is time for this Senate to get busy and to create a system that ends the mockery that exists for our legal system today and creates a lawful system that will serve our national interests." (Congressional Record, pg. S9007)

House Panels Discuss Military Amnesty Bill and Border Security

Two House Committees continued unfinished business last week, with the House Judiciary Committee resuming consideration of a bill that grants amnesty to family members of armed forces personnel and fast track citizenship to aliens serving in the armed forces.  The House Homeland Security Committee finished a hearing on the virtual fence.

On Wednesday, September 17th, Members of the House Judiciary Committee passed H.R. 6020, a bill aimed at granting amnesty to family members of individuals who have served in the U.S. armed forces. Republican Committee Members took issue with provisions in the bill that would allow immigration judges to waive certain deportable offenses when adjudicating cases of military members and their families. The American Legion, which has expressed opposition to H.R.6020, testified in May: "This would seem to reward law breakers and - possibly - illegal immigrants with a short cut to citizenship that is nothing less than an official pardon for illegal acts: an amnesty."  (Testimony to Congress, May 20, 2008)

Judiciary Ranking Member Lamar Smith (R-TX), Immigration Subcommittee Ranking Member Steve King (R-IA), and Committee Members Darrel Issa (R-CA) and Dan Lungren (R-CA) offered a total of 15 amendments to H.R.6020, the majority of which attempted to designate certain crimes as ineligible for a discretionary waiver of deportation. Of these 15 amendments, only three were adopted.  An amendment by Rep. Lungren to withhold the benefits of citizenship from applicants who intentionally committed voter fraud was adopted.  The other two amendments were sponsored by Rep. King and would withhold waivers from aliens who committed violations of religious freedom as former foreign government officials and from aliens who were unregistered sex offenders.  The Committee also voted to adopt an amendment offered by Immigration Subcommittee Chairwoman Zoe Lofgren (D-CA). Lofgren's amendment contained a list of offenses that Members of both parties agreed should not receive waivers, including crimes such as murder, rape, espionage and tax evasion over $10,000. (Congressional Quarterly, September 17, 2008)

After passing H.R. 6020, the Committee adjourned before considering three additional immigration-related measures previously scheduled. (Id.) These bills include: H.R. 5882, which would "recapture" more than 550,000 visas that the State Department did not issue in fiscal years 1992 through 2007; H.R. 5924, which would attempt to address perceived worker shortages in nursing and therapy fields by lifting the cap on employment-based visas for physical therapists and nurses until 2011 (Gallery Watch, August 1, 2008); and H.R. 5950, which would require the DHS "to establish procedures for the delivery of medical and mental health care to all immigration detainees...in DHS custody." (Congressional Research Service Summary, May 1, 2008)

On Thursday, the House Homeland Security Committee concluded its hearing on "Mismanagement, Missteps, and Missed Benchmarks: Why the Virtual Fence Has Not Become a Reality." Almost exclusively, the Committee Members questioned witnesses about DHS's efforts to secure our borders. While a scheduling conflict prevented representatives from U.S. Customs and Border Protection (CBP) from attending, two officials from GAO were on hand to answer the panel's questions. Rep. Chris Carney (D-PA) directly addressed border security: "I would like to see what the CBP's definition of operational border security is and if they believe that they are meeting that."  GAO's Director of Homeland Security and Justice Richard Stana responded to Carney's statement, identifying the CBP definition as being able to "detect illegal entry, identify and classify a threat level associated with it, respond to it, and resolve the situation." (Committee on Homeland Security Hearing, September 18, 2008) Stana added, "The fact that it's estimated that hundreds of thousands of people cross over the border undetected illegally every year would indicate that we don't have effective control right now." (Id.)

Rhode Island Governor Wins E-Verify Lawsuit

Last Monday, September 15th, a Superior Court judge cleared the way for Rhode Island Governor Don Carcieri to enforce his executive order requiring private employers who contract with the state government to check the immigration status of new hires using E-Verify.  The executive order also requires state agencies to participate in E-Verify and calls for state police and state prison officials to identify illegal aliens for possible deportation. (Associated Press, September 4, 2008)  The decision came after the American Civil Liberties Union (ACLU) filed a lawsuit earlier this month seeking to block Carcieri from implementing the order.  (Associated Press, September 16, 2008)

In his decision, Superior Court Judge Mark Pfeiffer rejected ACLU arguments that the Governor had exceeded his constitutional authority by having the order apply to private businesses. (Associated Press, September 16, 2008) Dismissing contentions that Carcieri's order would hurt private contractors by requiring them to participate in E-Verify, Pfeiffer wrote, "The harm would be minimal as it relates to vendors...who presently have contracts." (Rhode Island Commission Against Domestic Violence v. Donald L. Carcieri, September 15, 2008)

In a written statement released by his office, Governor Carcieri said that he was "pleased with the Judge's decision...which allows the Administration to move forward in requiring vendors to use E-Verify." (Governor Donald L. Carcieri's Press Release, September 15, 2008) The press release went on to note that the Administration "will immediately move forward to promulgate a purchasing regulation that expressly requires vendors who are doing business with the State of Rhode Island to use E-Verify." (Id.)

Rhode Island is now one of 15 states that require participation in E-Verify for certain employers. Two of these states - Arizona and Mississippi - have made E-Verify mandatory for all employers. (Associated Press, September 16, 2008) According to Jonathan Scharfen, Acting Director of U.S. Citizenship and Immigration Services, 99.5% of all employees who are authorized to work in the United States are verified through E-Verify immediately. Non-confirmations occur almost exclusively because the employee is not authorized to work in the U.S., the employee failed to update records with the Social Security Administration, or the employer made an error when entering information. (Testimony of Jonathan Scharfen, June 10, 2008)

Ninth Circuit Court Upholds Arizona Employer Sanctions Law

The Ninth Circuit Court of Appeals last week upheld an Arizona law that requires businesses to verify the employment eligibility status of their workers and penalizes them for knowingly hiring illegal aliens.  The Legal Arizona Workers Act, which went into effect January 1, 2008, penalizes businesses who fail to comply with worker eligibility requirements by permanently revoking their business licenses after a second offense. (Jurist, September 18, 2008)

The ACLU and other business and immigrant groups challenged the Arizona statute, arguing that it was unconstitutional because federal power to regulate immigration pre-empts the state's authority to deny licenses to businesses that hire illegal aliens.  The plaintiffs further argued that the statute violates due process by denying employers the ability to prove the lawful status of an employee who has not been confirmed as lawful by the E-Verify system. (Reuters, September 18, 2008)

The Ninth Circuit rejected both of these claims.  According to the Court, because the states have the authority to regulate employment practices, federal law does not preempt the statute. (Jurist, September 18, 2008)  The Court further noted that the law could be interpreted to "allow employers, before any license can be adversely affected, to present evidence to rebut the presumption that an employee is unauthorized." (Id.)  However, because the law has not yet been enforced, the Court also noted that the ruling would not bar future challenges. (Id.) Arizona Attorney General Terry Goddard told reporters his office would "continue to defend the statute should there be an appeal to the highest court." (Reuters, September 18, 2008)

California Appellate Court Allows In-State Tuition Case to Proceed

A California State Appellate Court last week overturned a lower court's 2006 dismissal of a lawsuit challenging a state law that grants in-state tuition rates to illegal aliens.  The case, Martinez et al v. Regents of the University of California et al, was filed in 2005 by the Immigration Reform Law Institute (IRLI) and Ropers, Majeski, Kohn & Bentley on behalf of out-of-state legal resident students enrolled in the University of California school system.

The plaintiffs argued that the state's law violates a federal law that prohibits awarding post-secondary education benefits to illegal aliens on the basis of state residency, without providing the same benefits to U.S. citizens.  Currently, out-of-state legal resident students are required to pay the higher out-of-state tuition rates - as much as $18,000 per year - while illegal aliens are allowed to pay the in-state rates.  (San Francisco Chronicle, September 16, 2008) Thus, according to the plaintiffs, the University of California school system, the California State school system, and the California community college system are violating federal law by "denying them a benefit provided to illegal aliens," without providing the same benefit (in-state tuition rates) to them as U.S. citizens. (Id.)

Federal law states, "An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident." (8 USC 1623)

The defendants argued that in-state tuition is not a "benefit" as defined by the federal law and therefore does not violate this provision.  They also argued that the law does not give a benefit "on the basis of residence" because lower tuition rates are only given to illegal aliens who attended California schools for at least three years and graduated from a California high school. (Inside Higher Ed, September 17, 2008)  However, the court rejected both of these arguments, noting that lower in-state tuition does qualify as a benefit and that "the three year attendance requirement at a California high school is a surrogate residence requirement." (Id.)

Christopher Patti, counsel for the University of California system, noted that lawyers are still reviewing the decision, but are "considering the possibility for review in the California Supreme Court."  (San Francisco Chronicle, September 16, 2008) However, Kris Kobach, counsel for the plaintiffs, said the decision will have a "huge impact" and "bring a halt to the law that has been giving in-state tuition to illegal immigrants." (Id.) Kobach also noted that though this ruling only affects California, it will likely impact the debate for other states who are considering similar legislation.  "It should serve as a shot across the bow to the other nine states that they are potentially exposed to liability because of their statutes." (Inside Higher Ed, September 17, 2008) There are currently nine other states with laws that allow illegal aliens to receive lower in-state tuition rates.

New GAO Report Critical of Visa Waiver Program

Last Monday, September 15th, the GAO released a report on DHS' management of the Visa Waiver Program (VWP). (GAO Report, September 15, 2008)  The VWP allows nationals of 27 participating countries to travel to the United States for business or tourism stays of 90 days or less without obtaining a visa. (State Department Fact Sheet)

The study focused in particular on the Electronic System for Travel Authorization (ESTA), which is a new online system requiring all citizens and nationals of Visa Waiver countries who are traveling to the United States for business or pleasure to obtain electronic travel authorization prior to departure. (DHS Fact Sheet, June 3, 2008) GAO noted several problems DHS has faced in implementing ESTA, including making the system user-friendly, informing U.S. embassies in VWP countries and the public about ESTA, and anticipating and addressing increased workloads for consulates and travel carriers. (GAO Report, September 15, 2008)

While the study found that DHS has successfully processed 50,000 travel requests through ESTA since August and has partnered with the travel and tourism industries to make the program work, GAO noted that the Department "has not fully developed tools to assess and mitigate risks in the Visa Waiver Program." (GAO Report, September 15, 2008)  The report further examined security risks with the program, pointing out that VWP travelers "are not subject to the same degree of screening as those with visas because they are not interviewed by a Department of State...consular officer before arriving at a U.S. port of entry. Without the added safeguard of the visa issuance process, the Visa Waiver Program could be exploited to gain illegal entry into the United States." (Id.) The findings come just one year after the Director of National Intelligence testified before Congress that al Qaeda was recruiting Europeans to commit terrorist attacks in the United States because of the fact that many of the countries that participate in the VWP are located in Europe. (Senate Committee on Homeland Security and Governmental Affairs Press Release, September 16, 2008)

Responding to the study's release, Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-CT) expressed displeasure with DHS and its management of the VWP. "GAO's findings make it clear that DHS has a lot of work to do before the Visa Waiver Program is secure," Lieberman said, adding that he had "asked the GAO to continue monitoring the Department's progress." (Senate Committee on Homeland Security and Governmental Affairs Press Release, September 16, 2008)

The Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security has scheduled a hearing on the VWP for this Wednesday at 2:30 PM. (Congressional Quarterly, September 17, 2008)

House Finalizes Benefit Extension for Some Refugees and Asylum Seekers

House Finalizes Benefit Extension for Some Refugees and Asylum Seekers On September 17th, the House passed by voice vote and sent to the President H.R. 2608, a bill to extend a welfare program for certain refugees and asylum seekers. Elderly and disabled refugees, asylum seekers, and certain other immigrants currently qualify for up to seven years of benefits under the Supplemental Security Income (SSI) program. The bill extends the maximum period for SSI benefits to nine years. It also limits this extension to an individual who has held legal permanent resident (LPR) status for less than 6 years; or has filed an application within 4 years of initially receiving SSI benefits to become a LPR; or has been granted status as a Cuban and Haitian entrant under the Refugee Education Assistance Act; or is an alien who is seeking asylum and is subject to restrictions on removal because their life or freedom would be threatened as defined in Section 241(b)(3) of the Immigration and Nationality Act. The legislation also requires the alien to declare, under penalty of perjury, that they have made a good faith effort to pursue United States citizenship. (H.R. 2608, Sec. 2) The rationale behind this extension is that it has become increasingly difficult to obtain citizenship in the seven year timeframe due to growing backlogs in processing citizenship applications. (CQ Today, August 1, 2008)

The bill also includes a provision to allow the IRS to recover fraudulently obtained unemployment compensation debts from taxpayers' refund checks. This provision was included to pay for the increased cost of the SSI extension. (CQ Today, August 1, 2008) As a result of the added revenue from the collection of these debts, the Congressional Budget Office (CBO) projects enactment of this legislation would increase net revenues to the federal government by $14 million over the next five years. (CBO Estimate of H.R. 2608, December 19, 2007)
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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.

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