US Legislative Immigration Update October 5, 2009

Right Side News Reports from the Federation for American Immigration Reform in this September 28, 2009 Legislative Weekly…

  • DHS Fails to Make Border Security a Priority
  • Senate Finance Committee Rejects Verification, Other Immigration-Related Amendments
  • Despite Rising Unemployment, DHS Prepares for Amnest
  • Grassley Continues Push to Eliminate Fraud, Abuse in H-1B Program

DHS Fails to Make Border Security a Priority

Last week – Thursday, October 1 – marked the beginning of Fiscal Year (FY) 2010. For each Fiscal Year, the Department of Homeland Security (DHS) sets goals with respect to the number of border miles it hopes to have under “effective control” during that Fiscal Year. According to DHS, the department had 894 of the 8,607 miles of the border for which it is responsible under “effective control” as of May 31, 2009. (CBP Congressional Testimony, July 9, 2009). Recent media reports, however, have indicated that DHS officials are planning to set the goal for FY2010 at 894 miles. (CNSNews, September 23, 2009). In effect, DHS has admitted that it does not intend to bring even one more mile of our porous border within “effective control” over the course of the next Fiscal Year.

According to DHS’ annual performance report for Fiscal Years 2008 through 2010, DHS “expects the miles of effective control to remain constant in FY2010,” at least partially because the department is planning “to move several hundred [Border Patrol] Agents from the Southwest Border to the Northern Border to meet the FY2010 staffing requirements, with only a small increase in new agents for the Southwest Border in the same year.” (DHS Annual Performance Report: Fiscal Years 2008 – 2010). This statement has generated much discussion and confusion within DHS itself and the media. On Wednesday, September 23, CNSNews reported that Border Patrol Spokesman Lloyd Easterling had confirmed that DHS was planning to shift Border Patrol Agents from the Southwest Border to the Northern Border. (CNSNews, September 23, 2009).

On September 24, CNSNews reported that Easterling had reconfirmed this plan. (CNSNews, September 24, 2009). On September 29, however, DHS spokesperson Matt Chandler claimed that the department was not planning to decrease the number of Border Patrol Agents stationed along the U.S.-Mexico border. (The Sierra Vista Herald, September 29, 2009).

Aside from increasing the number of Border Patrol Agents along our entire border, the federal government could take another strong step towards increasing the number of border miles under “effective control.” This could be done by ensuring that the DeMint Border Fence Amendment (#1399) to the FY2010 DHS spending bill survives conference committee and becomes law. 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). 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.

After nearly three months, it appears that members of the Appropriations Committees in both the House and the Senate are finally ready to move the DHS spending bill to a House-Senate conference to resolve the differences between the House and Senate versions of the legislation. The House version of the bill does not contain the DeMint amendment, and recent media reports have indicated that key members of the conference committee are considering dropping this language from the final version of the bill. (Congress Daily, September 28, 2009).

Senate Finance Committee Rejects Verification, Other Immigration-Related Amendments

Last week, the Senate Finance Committee wrapped up its consideration, or “mark up,” of its health care reform bill, the America’s Healthy Future Act of 2009. (Chairman’s Mark). During the mark up, the committee rejected two amendments that sought to enhance verification requirements for individuals who apply for taxpayer-subsidized health care benefits, as well as another amendment regarding federal benefits for legal aliens.

On Wednesday, September 30, Finance Committee Ranking Member Charles Grassley (R-IA) offered an amendment “that would require an applicant, or a parent or guardian of an applicant under 18, to present government-issued photo identification at the time of application for Medicaid or Children’s Health Insurance Program benefits.” (CQ Committee Coverage, September 30, 2009). In a statement on his amendment, Grassley asked the committee: “Is there any question that when you’re getting the benefit of a Children’s Health Insurance Program or Medicaid that there’s really nothing wrong with requiring a photo ID?…Shouldn’t we…care about people accessing thousands of dollars of government benefits through identity theft?” Well-known amnesty proponent Senator Robert Menendez (D-NJ) spoke against Senator Grassley’s amendment, arguing that the measure would create “a new barrier to coverage for everyone.” (CSPAN, September 30, 2009). The amendment was ultimately defeated on a party-line vote.

Later on September 30, Senator Jon Kyl (R-AZ) offered an amendment that was similar to Senator Grassley’s amendment. Kyl’s amendment, however, sought to require that applicants for the tax subsidy credits created under the America’s Healthy Future Act present a photo ID at the time of application. Senator Jay Rockefeller (D-WV) described the amendment as “rather dreadful,” and Senator Jeff Bingaman (D-NM) said that it was “a solution without a problem.” The amendment was defeated on a party-line vote. (CSPAN, September 30, 2009).

On Thursday, October 1, Senator Kyl offered another amendment to the bill that dealt with legal aliens and their ability to access taxpayer subsidies created under the Baucus bill. Senator Kyl argued that the legislation, as it is written, will allow legal immigrants to access these subsidies even if they have been in the country for less than five years. This provision, as Senator Kyl pointed out, conflicts with current federal law, which precludes legal aliens from accessing most federal welfare programs until they have been in the United States for five years. Kyl’s amendment sought to apply this requirement to the subsidies created under the Finance Committee’s health care bill. Senators Menendez and Bingaman led the charge against this amendment, and it was ultimately defeated on a party line vote. (CSPAN, October 1, 2009). Last week, FAIR released a Legislative Analysis that noted that a similar provision in the House health care bill (H.R. 3200) waiving the five-year waiting period for legal immigrants with respect to taxpayer-funded subsidies created under the bill “will cost the American taxpayers at least $33.8 billion during the 2014-2019 period.” (See FAIR’s Legislative Analysis).

Despite Rising Unemployment, DHS Prepares for Amnesty

On Friday, October 2, the director of the Department of Homeland Security’s (DHS) Bureau of Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, told The New York Times that his agency is “under way to prepare for” the possibility of giving legal status to millions of amnestied illegal aliens. (The New York Times, October 2, 2009). Mayorkas’ comments came on the same day that the Bureau of Labor Statistics announced that the nationwide unemployment rate has jumped to a 26-year high of 9.8 percent. (Reuters, October 2, 2009; Bureau of Labor Statistics, October 2, 2009).

USCIS is the agency charged with, among other things, approving visas. According to The Times, Mayorkas said that USCIS’ goal “is to be ready to expand rapidly to handle the gigantic increase in visa applications it would face if” an amnesty bill is signed into law. Mayorkas indicated that an example of this planning “is an effort to improve the agency’s ability to receive applications via postal mail at secure reception points known as lockboxes.” USCIS currently receives about 65 percent of visa applications through lockboxes, which the agency says is more efficient than receiving them through its local offices.

Mayorkas indicated that the agency is trying to move so that all visa applications would be received through the lockboxes. Other officials familiar with the amnesty planning indicated that “[o]ne idea calls for illegal immigrants to start the legalization process by verifying their presence in the United States through a simple registration form mailed to a lockbox.” The Times noted that Mayorkas and DHS Secretary Janet Napolitano “have held meetings around the country in recent weeks to gather suggestions from the public” for how their agencies could better plan for and handle a massive amnesty. (The New York Times, October 2, 2009).

USCIS’ decision to allocate taxpayer-funded resources to prepare for an amnesty is curious, given that no amnesty legislation has been introduced yet in this session of Congress. Furthermore, the Ranking Member of the House Judiciary’s Subcommittee on Immigration, Steve King (R-IA), pointed out that “[t]here is a risk to national security that they will take their eyes off background checks of immigrants while they are busy setting up for legislation that has not been introduced in any way, shape or form.” (Id.).

Grassley Continues Push to Eliminate Fraud, Abuse in H-1B Program

Last week, Senator Chuck Grassley (R-IA) sent a letter to the Department of Homeland Security’s Bureau of Citizenship and Immigration Services (USCIS) regarding the H-1B visa program. The H-1B program allows employers to bring foreign workers to the United States to work in specialty occupations that require “the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty.” (Department of Labor).

Senator Grassley’s letter was sent one year after USCIS released the results of an internal assessment that revealed high levels of fraud and “technical violations” within the H-1B program. In that assessment, USCIS analyzed 246 H-1B visa petitions, finding that 33 contained at least one instance of fraud, while another 18 contained “technical violations.” These 51 cases meant that the overall violation rate comprised 20.7% of the sample. (H-1B Benefit Fraud & Compliance Assessment, September 2008).

The results of the 2008 report prompted Senator Grassley to send an initial letter to USCIS in which he called the assessment a “wake up call” and pointed out that “rampant fraud and abuse…[was] taking place in the [H-1B] program.” Grassley stated that he felt “that not enough fraud prevention and detection efforts were incorporated in the adjudication process.” (See FAIR’s Legislative Update, October 14, 2008).

In the letter sent last week, Senator Grassley pointed out that, in the letter he initially sent in 2008, he had asked “what steps USCIS had taken or would take to restore integrity in the [H-1B] program.” In his most recent letter, Grassley noted that USCIS had reported to him “that the agency had issued internal field guidance informing adjudicators of the findings [of the assessment] and instructing them to make changes to how they adjudicate H-1B petitions.” Grassley noted that he was appreciative of these steps, but stated that he was “surprised that no guidance has been provided to adjudicators, or to the public, about additional evidence to be gathered from petitioners.” (Senator Grassley Press Release, September 29, 2009).

Grassley went on to state that “adjudicators should be asking companies up front for evidence that H-1B visa holders actually have a job awaiting them in the U.S.” Grassley argued that such a requirement would “ensure that H-1B workers are filling true vacancies rather than taking jobs from qualified Americans.” The letter went on to ask whether USCIS has begun “using independent, open source data available through commercial sources to obtain information regarding the petitioner that would be relevant to the adjudication of the petition,” as the bureau had promised Grassley in 2008. Finally, Grassley asked USCIS what other steps it is taking to address the problems found in the 2008 assessment, including:

  • Employees working at locations not identified in an employer’s H-1B petition and/or Labor Condition Application (LCA);
  • Actual job duties differing from those described in the LCA and the petition;
  • Employers failing to pay H-1B workers prevailing wages;
  • Use of fraudulent or forged documents or signatures; and
  • Aliens misrepresenting that they were maintaining status upon returning to the
    United States, even though they had previously failed to maintain their H-1B status. (Id.).

Grassley commented on his most recent letter to USCIS: “Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program.” (ComputerWorld, September 29, 2009). USCIS has indicated that it will respond to the letter.