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Intelligence Reformed and Homeland Security Department Overhauled
By Betsy Cooper and Jennifer Yau
Migration Policy Institute
January 1, 2005
Intelligence Reform Bill Passed, Signed
President Bush signed a bill to implement many key recommendations of the 9/11 Commission, including the creation of a Director of National Intelligence position, on December 17. The 2004 Intelligence Reform and Terrorism Prevention Act, which passed by large majorities in both houses, had been delayed in conference negotiations by House Republicans concerned about the military chain of command and immigration restrictions.
A compromise was reached when the issues regarding the chain of command were resolved. Rep. James Sensenbrenner (R-WI) opposed the final bill because of its failure to include several immigration provisions included in the House bill.
The law augments the number of Border Patrol officers and amount of detention space, encourages the design of surveillance equipment for the US-Mexico border, and increases the penalties for human smugglers. The Government Accountability Office (GAO) will be required to analyze potential vulnerabilities of the asylum system available to terrorists.
The bill also reforms visa application requirements, expands the grounds for removal to include visa revocation and terrorist training experience, and strengthens civil rights and civil liberty protections within the Department of Homeland Security (DHS).
The final bill does not prohibit states from issuing drivers' licenses to undocumented migrants — a provision several Republican members of the House had insisted upon — although it does instruct DHS to create standards for state licenses and identification documents. The bill also did not contain controversial provisions regarding expedited removal of potential asylum seekers, nor did it ban federal agencies from accepting foreign-issued identification documents such as consular identification cards.
Sensenbrenner and other House Republicans intend to reintroduce some of these immigration provisions when Congress reconvenes in 2005.
Ridge Resigns, Kerik Withdraws Name from DHS Consideration
- For more on HR 10 and S 2845, see the November 2004 Policy Beat.
- For the full text of the compromise bill, click here.
Former New York City Police Commissioner Bernard Kerik withdrew his nomination for Department of Homeland Security (DHS) Secretary due to immigration-related irregularities that may have disrupted his confirmation. No new nominee has been announced.
Kerik, who served as Police Commissioner during the September 11, 2001 attacks, disclosed that he had failed to pay taxes and file reports on behalf of a former housekeeper and nanny who may also have been an undocumented immigrant. The hiring of undocumented immigrants has been prohibited by US law since 1986, and the agencies enforcing that law are contained within DHS.
Kerik would have replaced Secretary Tom Ridge, who resigned his post on November 29 citing family and personal reasons. As the first DHS Secretary, Ridge managed 180,000 employees across the department's divisions, including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (CIS). He will remain in office until February 1 unless a successor is confirmed earlier.
Final Regulations Issued on US-Canada Safe Third Country Agreement
- For the text of Secretary Ridge’s letter of resignation, click here.
US Citizenship and Immigration Services (USCIS) announced on November 29 final rules for a bilateral agreement between the United States and Canada that requires asylum seekers to make their application in whichever country they arrive first.
The "Safe Third Country Agreement," which went into effect on December 29, contains a number of exemptions to the policy, including unaccompanied minors and those with close family relations in the country of destination that can financially support the applicant.
The agreement, which also guarantees that asylum seekers may remain in either country until they receive a hearing, was initially introduced in the Smart Border Action Plan, a 30-point bilateral plan for US-Canada border relations. On November 3, Canada published its final rules for the agreement, which could not be implemented until both countries published final rules.
Approximately 9,000 applicants in the United States from outside the US annually apply for asylum in Canada, as compared to the 200 applicants in Canada that annually apply to the United States.
Supporters believe that the policy will ease flows of asylum seekers to Canada and reduce bureaucratic overhead to the asylum process. However, critics fear the policy will provide incentives for migrants to use illegal transit methods — and potentially increase human smuggling operations — to reach Canada undetected, thus circumventing the agreement.
Congress Amends H-1B and L-1 Visa Programs for Highly Skilled Workers
President Bush has signed into law changes affecting highly skilled workers using the H-1B and L-1 visas. The provisions exempt 20,000 foreign graduates from US masters or doctorate programs from the cap on H-1B visas. The changes would effectively increase the number of H-1B visas issued from 65,000 to 85,000 in fiscal year 2005.
The provision represents the first increase in numbers since the H-1B cap went from 195,000 to 65,000 in 2003, in response to criticism that the H-1B program allows companies to pass over American workers for foreigners who accept lower salaries.
In the same bill, lawmakers tightened regulations surrounding the L-1 visa, which allows foreign firms to transfer managers and employees with specialized knowledge to their offices in the United States. The legislation mandates that L-1 applicants must work for at least one year with their sponsoring company, and further prohibits L-1 holders from performing their work while based at a US site other than their employer's offices.
In the past, foreign firms contracted by American companies have used the L-1 visa to provide support at US client sites for work done outside of the country. Critics opposing this use of the L-1 contend that it is a substitute for the H-1B visa, in effect taking jobs away from American workers and facilitating the "offshoring" of work to companies overseas.
Arizona Proposition 200 Faces Legal Battles
US District Judge David C. Bury has lifted a court-issued restraining order that delayed full implementation of Arizona's Proposition 200. The referendum, which Arizona voters passed on November 2, bars undocumented immigrants from certain public benefits and voting rights. Under the law, state and local government employees must check that welfare applicants have proper legal status and report undocumented immigrants to federal authorities.
In response to a lawsuit filed by the Mexican American Legal Defense and Educational Fund (MALDEF), Judge Bury issued a restraining order to temporarily block the proposition’s public benefit provisions. The MALDEF lawsuit argues Proposition 200 uses state employees to enforce federal immigration laws, denies benefits covered by federal law, and could disenfranchise a significant number of voters.
At a public hearing on December 22, Judge Bury decided that the restraining order should be lifted because doing so would not cause irreparable harm. He said the scope of public benefits is restricted to state and local welfare benefits, and that state and local governments are required to cooperate with federal immigration authorities.
MALDEF plans to appeal the decision to the 9th US Circuit Court of Appeals.
Governor Janet Napolitano issued an executive order directing state agencies to begin upholding the law following the December 22 hearing. Napolitano earlier signed into law sections of Proposition 200 requiring proof of citizenship when voting or registering to vote. The Department of Justice must now make a decision regarding the proposition’s constitutionality under federal voting rights laws, a process that takes at least 60 days.
Another pending lawsuit, filed by the Federation for American Immigration Reform and other referendum advocates, seeks to expand the scope of public benefits.
Policy Beat Briefs
- To read more about Arizona Proposition 200, see the December 2004 Policy Beat.
Mexican Remittances. The Bank of Mexico reported that remittances from Mexicans living in the United States reached a record $13.8 billion from January to October of 2004, a 23.3 percent increase over the same period last year. Since 2003, remittances have exceeded foreign direct investment, making it the second-largest source of foreign currency after oil exports. World Bank officials have cited US and Mexico financial institutions as models for other countries working to increase use of formal channels for transferring money.
Visa Quota for Nurses. The quota for temporary work visas issued to foreign nurses and other skilled labor has been reached. The news, announced by the State Department, affects a significant number of nurses from the Philippines, and, to a lesser extent, China and India, who had heavily relied on the visa because of its relatively short processing times. The State Department noted that applicants from those three countries who filed after January 1, 2002 may now have to wait up to three years for their papers to be processed due to security-related measures. US hospitals have voiced concerns over nursing shortages, while the Filipino government, which supports training for nurses to work abroad, has expressed its own concerns about the delays.
Naturalization Test Overhaul. The National Academy of Sciences (NAS) is urging the government to create an advisory board for the naturalization test's redesign, according to an interim report on the US Citizenship and Immigration Services' (USCIS) efforts. NAS is also recommending methods to ensure the test's validity and fairness. In 2001, USCIS began efforts to redesign the test, which is required to obtain US citizenship.
- To view the State Department Visa Bulletin announcing changes affecting foreign nurses, click here.
- To read the report by the National Academy of Sciences, click here.
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