U.S. Legislative Immigration Update April 4, 2011

Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this March 14th, 2011 Legislative Weekly. FAIR tracks pending immigration laws in the United States which can impact homeland security in positive or negative ways and are a valued resource.

  • 9/11 Commissioner Warns of Terrorists Missed by the Immigration System
  • Homeland Security Subcommittee Reveals Depth of Mexican Drug Gang Threat
  • Immigration Subcommittee Divided Over Direction of H-1B Visas
  • USCIS Temporarily Delays Decisions Involving Same-Sex Couples

 

9/11 Commissioner Warns of Terrorists Missed by the Immigration System

The Senate Homeland Security Committee met last week to determine the progress made to protect our nation’s security almost one decade after the September 11, 2001, attacks.  The Senators listened to testimony from former Governor Tom Kean and former Congressman Lee Hamilton, who served as Chairman and Vice-Chair of the 9/11 Commission, respectively. The two gentlemen now serve as the co-chairmen of the Bipartisan Policy Center’s National Security Preparedness Group (NSPG).

Former Governor of New Jersey and Chairman of the 9/11 Commission Tom Kean provided the most compelling testimony of the hearing.  He began his testimony with the alarming remark that “there is a high risk of attack but we believe it will be small.”  Mr. Kean stated that “border security remains a top national security priority, because there is an indisputable nexus between terrorist operations and terrorist travel.  Foreign-born terrorists have continued to exploit our border vulnerabilities to gain access to the United States.”  He emphasized that while the government has made some improvements, troubling vulnerabilities in border security remain.  Mr. Kean specifically identified terrorists “who could have been detected by the U.S. immigration system.”  These examples include Christmas Day bomber Umar Farouk Abdulmutallab, who used a valid U.S. visa to board Northwest flight 253 in Amsterdam; Hosam Smadi, who plotted to blow up a Dallas office building after overstaying his visa; and Faisal Shahzad, who naturalized just a year before attempting to detonate a massive car bomb in Times Square.

Mr. Kean also identified the US-VISIT program in need of great improvement.  US-VISIT is a system which checks biometric data, such as fingerprints and a photograph, when an international traveler arrives at U.S. ports of entry and visa-issuing posts.  (Department of Homeland Security (DHS))  Collecting this information ensures individuals are who they say they are and helps immigration officers identify whether an individual is authorized to enter the country or receive a visa.  Mr. Kean expressed disappointment at the lack of a comprehensive exit system.  He said that it is important to know when foreign nationals leave the country and the exit component of US-VISIT needs to become a high priority.  He stated that if “law enforcement and intelligence officials had known for certain in August and September 2001 that 9/11 hijackers Nawaf al-Hazmi and Khalid al-Mihdhar had remained in the U.S., the search for them might have taken on greater urgency.”

Mr. Kean also touted the need for full implementation of the REAL ID Act.  He reminded the committee that eighteen of the 9/11 hijackers obtained 30 state-issued IDs, which allowed them to board planes on the morning of 9/11.  Due to the fraud the hijackers used to obtain legitimate IDs, the 9/11 Commission instructed the federal government to set standards for the issuance of IDs.  In response, in 2005 Congress passed the REAL ID Act, which set minimum standards the states must adopt in issuing drivers licenses.  (DHS: REAL ID Final Rule)  Mr. Kean voiced concern, however, that DHS has twice delayed the deadline for states to comply with REAL ID Act provisions.  Recently, DHS announced that they will push the compliance date back even farther until January 2013. (Fox News, March 5, 2011; FAIR Legislative Update, Mar. 7, 2011)  Mr. Kean was adamant that no further delay should be authorized, but rather compliance should be accelerated.  He said the “delay in compliance creates vulnerabilities and makes us less safe.”  Furthermore, Mr. Kean reminded the Committee that minimum standards for birth certificates must also be put in place to close another “back door” that terrorists can use to obtain IDs under the current regulations.

Chairman of the Homeland Security Committee, Senator Joseph Lieberman (I-CT), noted that even though Congress adopted most of the recommendations of the 9/11 Commission, there have still been failures and close calls.  Senator Lieberman praised the knowledge and depth of the 9/11 Commission’s findings, which were made only after the commission reviewed 2.5 million pages of documents, interviewed 1,200 individuals in 12 countries, and held 19 days of hearings across the country with 160 witnesses testifying.  Unfortunately, Congress has not fully implemented all of the commission’s recommendations.  Senator Lieberman voiced concern over the continuing “bureaucratic resistance” to inter-operation communications among agencies and intelligence officers.  Despite the progress made improving security since the 9/11 Commission Report, the Senator voiced concern over the ongoing high-risk of smaller attacks, especially those coming from individuals within the country.

Likewise, Senator Senator Susan Collins (R-ME), Ranking Member of the Committee, voiced relief that the U.S. has not suffered another terrorist attack on the scale of 9/11, but also wondered whether this was simply luck.  She expressed concern that “the border patrol does not have the means to detect illegal activity along three-quarters of our northern border,” and emphasized the importance of “closing [the border] to those who would do us harm.”  She also called for the increased use of biometric data screening for those who enter and exit the country, and a requirement for intelligence authorities to be alerted when a foreign terrorist is detained in the United States.

Although Mr. Kean and Mr. Hamilton were supportive of the progress that Congress has made to secure our country since 9/11, they repeatedly reminded committee that all recommendations of the Commission need to be implemented to better ensure our nation’s safety.  With failures to implement REAL ID, lack of an exit system, and porous border security, Congress has yet to undergo the full spectrum of provisions demanded to prevent another 9/11.

Homeland Security Subcommittee Reveals Depth of Mexican Drug Gang Threat

The Senate Homeland Security Committee Subcommittee on Disaster Recovery and Intergovernmental Affairs held a hearing last week to document the severity of the terror that Mexican drug cartels are bringing to American soil.  The hearing, entitled “Exploring Drug Gangs’ Ever-Evolving Tactics to Penetrate the Border and the Federal Government’s Ability to Stop Them,” comes on the heels of the brutal slaying of Immigration and Customs Enforcement (ICE) Agent Jaime Zapata, reportedly carried out by Mexican drug cartel members.  (See FAIR Legislative Update, Feb. 22, 2011)

The Chairman of the Subcommittee, Senator Mark Pryor (R- AR), began the hearing by expressing condolences on the loss of Agent Zapata.  He discussed the importance of the hearing’s quest to address methods gangs are using to access America’s southwestern border to transit drugs and people, given that “few threats [are] as deadly and menacing as drug gangs, particularly Mexican drug gangs.”

Chairman Pryor described as particularly troubling the drug cartels’ use of trucks to traffic drugs across the U.S. Border.  The Senator pointed out cases of Mexican drug couriers camouflaging their illegal goods by making their trucks look like Wal-Mart big rigs and Fed-Ex vans to easily courier their contraband within the U.S.  Although Pryor at this time did not raise the issue of the Obama Administration’s renewed effort to allow Mexican long-haul trucks access to American highways, he has expressed grave concerns about the cross-border trucking program. (See FAIR Legislative Update, Mar. 7, 2011; Press Release, Mar. 18, 2011)

Meanwhile, Senator John Ensign (R-NV) stressed that the impact that Mexican drug cartels have on America is not confined to the Southwest border region.  The Senator pointed out that according to the National Drug Intelligence Center, Mexican Drug Trafficking Organizations (DTOs) are the only DTOs active in every region of the United States.  “Just as ominous,” he said, “the Mexican DTOs have expanded their relationship with street and prison gangs in the United States and have increased their distribution of illegal drugs into more rural and suburban areas.”

The Subcommittee hearing made evident that open borders are an invitation to drug cartel activity and impact every state in America.  As Senator Ensign stated, “drug and alien smugglers will literally stop at nothing” to gain entry to America and collect their profits.

Immigration Subcommittee Divided Over Direction of H-1B Visas

The House Immigration Policy and Enforcement Subcommittee held a hearing Thursday to discuss possible reforms to the H-1B visa program. While businesses claim they use H-1B visas to sponsor “high-skilled” workers, H-1B visa recipients are typically only required to have either a Bachelor’s degree or specialized knowledge in a particular field.  H-1B visas are also used to bring fashion models into the country.  (USCIS Website, 3/31/2011; INA § 101(a)(15)(H)(i)(b))

Dr. Ron Hira, who teaches public policy at the Rochester Institute of Technology, discussed the many flaws in the H-1B visa program during his testimony.  According to Dr. Hira, H-1B visas displace and deny opportunities to U.S. workers: “loopholes in the program have made it too easy to bring in cheaper foreign workers, with ordinary skills, who directly substitute for, rather than complement, workers already in America.”  He also discussed loopholes in the program that provide an unfair competitive advantage to businesses that outsource jobs overseas. Hira stated nearly all of the employers receiving the most H-1B visas in the last five years are using them to offshore tens of thousands of high-wage American jobs. “Offshoring through the H-1B program is so common that it has been dubbed the ‘outsourcing visa’ by India’s former commerce minister,” Dr. Hira added.

While members of the Subcommittee agreed with one another that the H-1B visa program needs reforming, they disagreed on the direction such reform must take.  Rep. Lamar Smith (R-TX) called for either increasing the H-1B visa allotment or tightening the requirements for qualifying for the visa. “The 65,000 base annual quota of H-1B visas is going to come under more and more pressure as the economy improves.  If Congress doesn’t act to increase the H-1B cap, then we may need to examine what sort of workers qualify for H-1B visas,” he said in his opening statement. Rep. Smith also questioned whether the safeguards built into the H-1B program are sufficient to protect American workers. Citing a recent GAO report, Rep. Smith asserted, “H-1B employers categorize over half of their H-1B workers as entry level—which is defined as ‘performing routine tasks that require limited, if any, exercise of judgment’—and only six percent as fully competent.”  Next, Rep. Smith described national security concerns about the H-1B program.  According to recent GAO findings, he said, the U.S. government has awarded H-1B visas to over one million foreign nations from 13 “countries of concern.”  Finally, Rep. Smith expressed concerns over the “legacy of fraud” taking place in the H-1B program.  At hearing over a decade ago, he said, witnesses discussed fraud in the program such as petitioning companies being nothing more than an abandoned building or fake address, yet roughly 10 years later in 2008 USCIS’s Office of Fraud Detection and National Security found outright fraud in over 13% of randomly selected cases, he asserted.

Several Subcommittee members argued that instead of expanding the H-1B program, the U.S. should increase the number of legal permanent residents (green card holders) the government admits each year. For example, Rep. John Conyers (D-MI), the ranking Democrat on the Judiciary Committee, argued that admitting individuals as green card holders is preferable than as H-1B guest workers because H-1B recipients are unable to stay in the country permanently or move from job to job.  “What we need are more green cards,” said Rep. Conyers.  “Staple a green card to a national graduating certificate when he graduates from an engineering school. You would then relieve the problem of most of them ending up going back home to become our competitors when most of them…really wanted to stay.”  Testifying on behalf of the Institute of Electrical and Electronics Engineers, Inc.-USA, former Congressman Bruce A. Morrison echoed Rep. Conyers’ remarks: “Let’s get these new graduates who are going to be coming out on a green card pass to become Americans and create American jobs,” he said.

Rep. Zoe Lofgren (D-CA), the ranking Democrat on the Immigration Subcommittee, also advocated increasing the annual allotment of green cards. According to Rep. Lofgren, the primary problem with the H-1B program is that it only permits workers to stay in the U.S. temporarily:  “[T]he real issue … is how can we capture with permanent visas the individuals who we want to keep to create companies, to do startups, to create jobs for American workers,” she stated.   “Europe, Australia, Canada, and even China and India are changing their laws and rolling out the welcome mat providing permanent visas and citizenship to some advanced degree holders. We must do the same or risk being left behind.”

Other members of the Subcommittee argued that the H-1B program should be restricted or eliminated entirely. Rep. Steve King (R-IA), the Vice-Chair of the Subcommittee, argued for lowering the number of H-1B visas.  “There is such a thing as too much legal immigration,” King said. “Too much legal immigration also drives down wages and oversupplies in the workforce. And we are in a precarious position here in this country,” he continued. Dr. Ron Hira agreed with Congressman King: “I think that there can be too much [legal immigration] and I think there needs to be control in terms of numbers.”

USCIS Temporarily Delays Decisions Involving Same-Sex Couples

Last Monday, the United States Citizenship and Immigration Services (USCIS) announced that it was delaying decisions on cases involving same-sex couples.  This announcement, USCIS officials said, came as a result of the Obama Administration’s decision to stop enforcing the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages. (New York Times, Mar. 29, 2011; New York Times, Feb. 24, 2011) Chris Bentley, Press Secretary for the USCIS said in a statement: “USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.” (TPM, Mar. 28, 2011) However, two days later USCIS back-peddled with the announcement that USCIS had received the necessary guidance and that same-sex marriage cases were no longer to be held in abeyance. “The guidance we were awaiting … was received last night, so the hold is over, so we’re back to adjudicating cases as we always have,” Mr. Bentley stated. (Metro Weekly, Mar. 30, 2011)

Newsweek/Daily Beast was the first to report on the brief change in policy last week following accounts that the leaders of the Washington, D.C. and Baltimore USCIS offices told members of the American Immigration Lawyers Association (AILA) that they had begun putting cases involving same-sex marriages on hold instead of automatically denying them. (The Daily Beast, Mar. 25, 2011) Sarah Taylor and Greg Collett, Directors of the Washington, D.C. and Baltimore offices respectively, later confirmed the accounts to Newsweek/Daily Beast, prompting Mr. Bentley’s announcement. (Id.)

USCIS’s temporary change in policy reflects the Obama Administration’s continuous search to expand immigration. (See FAIR Legislative Update, Aug. 2, 2010) If USCIS were to permanently recognize same-sex marriages, there would be three main effects on immigration policy.  First, illegal aliens in same-sex marriages who either entered the country illegally or overstayed their visas would likely be permitted to remain in the U.S. until the legal battle over DOMA—which could take years—is settled. As such, illegal aliens applying for spousal green cards would have their applications placed on hold rather than automatically denied (as is current practice), and those undergoing deportation proceedings would have their proceedings placed on hold or be issued a stay of removal.  The latter already came to fruition two weeks ago when a New York immigration judge stayed the deportation of an illegal alien from Argentina due to the Obama Administration’s announcement that it would no longer be enforcing DOMA.  (Voice of America News, Mar. 27, 2011) Second, legal immigration levels would significantly increase due to a number of individuals who would be expected to apply for spousal visas for their same-sex partners.  Under Section 201 of the Immigration and Nationality Act, there is no numerical cap on such visas, meaning that unless the foreign spouse is otherwise deemed ineligible, he or she would be granted a spousal visa and placed on a track to becoming a U.S. citizen