With little prospect of the 112th Congress acting on comprehensive immigration reform, there is growing bipartisan support behind measures that would increase the number of temporary visas available to one group of foreign citizens – Irish nationals.
In December, Senator Charles Schumer (D-NY), the chair of the Senate immigration subcommittee, added to a bill on high-skilled immigrants a provision that would allow up to 10,500 Irish nationals to enter the United States each year through the existing but obscure E-3 temporary worker program. Soon after, Senators Scott Brown (R-MA) and Mark Kirk (R-IL) introduced the Irish Immigration Recognition and Encouragement Act of 2011 (IRE Act) as a stand-alone bill that would similarly open the E-3 program to high-skilled Irish. Proponents of the measures are now pushing for a vote on at least one of these bills prior to St. Patrick's Day on March 17.
Despite support for the measures on both sides of the aisle, the prospects of the bill to which Senator Schumer attached his E-3 provision and the Brown-Kirk E-3 bill remain uncertain. The primary obstacle to their passage is Senator Chuck Grassley (R-IA), who has taken steps to block both measures out of his long-standing concern that temporary worker programs undercut U.S. workers and undermine U.S. labor standards.
The significance of the Irish measures, however, lies less in the specifics of the legislation and more in the degree of positive response that proposals like these have recently generated in Congress. The rather atypical bipartisan backing of the bills seems to indicate a thawing in congressional attitudes toward immigration legislation, at least as it relates to certain groups of immigrants. In addition, the bills demonstrate that legislators can choose to craft stand-alone immigration laws that benefit discrete populations or address certain concerns, an option that could become more popular at a time when a comprehensive approach to immigration reform is generally considered impossible.
Stand-Alone Immigration Measures
The trend toward introducing the narrowly constructed immigration reform measures began last November, when the House of Representatives overwhelmingly approved in a 389-15 vote a bill introduced by Representative Jason Chaffetz (R-UT) that would lift per-country visa caps for employment and family-based immigration flows. The measure would not change the overall number of immigrants admitted to the country, but it would lead to more immigrants admitted from China and India (whose nationals make up the largest numbers of employer-sponsored visa applicants) as well as from Mexico and the Philippines (traditionally the sources of the largest numbers of family-based visa applicants).
More recently, the House Judiciary Committee approved a bipartisan bill that would add Israel to the list of countries whose nationals qualify to receive E-2 investor visas. And in January, Representative David Rivera (R-FL) introduced a modified version of the Development, Relief, and Education for Alien Minors (DREAM) Act that would allow certain unauthorized immigrants to legalize their status by enrolling in the U.S. military.
History and Details of the E-3 Program
The current version of the E-3 visa program is only open to Australian nationals. However, Australia is not the only country whose nationals are beneficiaries of country-specific programs for the admission of high-skilled immigrants. Trade agreements between the United States and Singapore and the United States and Chile set aside a certain number of H-1B visas for nationals of those two countries, and the North American Free Trade Agreement (NAFTA) allows certain high-skilled Canadian and Mexican professionals to enter the United States on three-year, renewable TN visas.
Similarly, it was the signing of the United States-Australia Free Trade Agreement in 2004 that triggered the creation of the E-3 program. While the language authorizing E-3 was not part of the treaty, most experts believe that the concept of creating a new visa program for Australians arose during treaty negotiations. Because congressional leaders had become adverse to the executive branch using treaties to create special visa arrangements, it was necessary to introduce the provision for Australian nationals through the regular legislative process. This was accomplished by amending the REAL-ID Act to create the E-3 program, a move that received critical backing from then Senate Majority Leader Bill Frist (R-TN) and Representative James Sensenbrenner (R-WI). Some have also speculated that another reason for the creation of the E-3 program was to reward Australia for its willingness to back the United States in its wars in Iraq and Afghanistan.
Through the E-3 program, up to 10,500 two-year visas are made available annually to skilled Australian nationals who are sponsored by prospective employers. The spouses and children of those who receive E-3 visas are also allowed to enter the United States and do not count toward the visa cap. Since the creation of the program, however, the number of Australian nationals admitted on E-3 visas has never come close to hitting the 10,500 cap. According to Department of State (DOS) statistics, just 2,175 Australian nationals were granted principal E-3 visas in FY 2010.
Like the H-1B temporary visa program (which applies to high-skilled workers from any country), E-3 visa applicants must prove that they are coming to work in the United States in a "specialty occupation," defined as a job that requires a bachelor's degree or its equivalent. Like H-1B employers, those sponsoring E-3 visa applicants must also file labor attestations with the U.S. Department of Labor (DOL) stating that they will comply with certain labor standards intended to protect U.S. workers. In another parallel to the H-1B process, the E-3 process does not create an automatic pathway to lawful permanent residence.
In many ways, however, the E-3 visa process is far more generous than the general H-1B process. Employers sponsoring E-3 visa applicants do not need to receive approval from U.S. Citizenship and Immigration Services (USCIS) before a qualified candidate applies for a visa at a U.S. consulate. In addition, while noncitizens may generally hold H-1B status for up to six years, E-3 recipients may continually renew their visas as long as they meet the E-3 criteria. Perhaps most significantly, the spouses of principal E-3 visa holders are also eligible to work in the United States, while spouses of H-1B holders are not.
Politics and Criticism
Despite having bipartisan support and precedent, the new E-3 measures for Irish citizens are facing some criticism. Opponents of the legislation assert that it is fundamentally unfair for the United States to create a new visa process that only benefits nationals of one country. They also suggest political motivations on the part of the new measures' sponsors.
Indeed, two of the biggest backers of the new E-3 visa reform legislation are Senators Schumer and Brown, who represent the states with the largest (New York) and third-largest (Massachusetts) Irish-immigrant populations, respectively, according to the 2010 census. Critics have also noted that Senator Brown, who had not been an original supporter of the Schumer bill, is currently in the middle of a hotly contested re-election race.
Perhaps the larger questions regarding the Irish measures surround the merits of pushing immigration proposals that address special interests or narrowly targeted groups to purposely garner bipartisan support. Critics of such proposals assert that only a broad reform will address the current, deeper inadequacies of the U.S. immigration system. In a Congress in which such a comprehensive approach appears unlikely, however, backers of measures such as the Irish bills argue that passing any immigration law constitutes progress – even if it only affects a discrete population.
Policy Beat in Brief
Additional Portions of Immigration Laws in Alabama and Arizona Blocked. Additional portions of immigration enforcement laws HB 56 in Alabama and SB 1070 in Arizona have been blocked from taking effect.
In a surprise decision issued March 8, the U.S. Court of Appeals for the Eleventh Circuit found two additional parts of Alabama's HB 56 to likely be unconstitutional and subsequently blocked them: a provision that made private contracts with unauthorized immigrants unenforceable by the state and a provision that made it a crime for unauthorized immigrants to enter into business transactions with the government. This ruling follows the court's decision last fall to initially block two of HB 56's provisions.
In Arizona, U.S. District Court Judge Susan Bolton, who in July 2010 temporarily stopped implementation of several of the most controversial parts of Arizona's SB 1070, ruled on February 29 that an additional portion of the law prohibiting day laborers from soliciting employment is likely unconstitutional. In her ruling halting implementation of the provision, Judge Bolton relied on a recent decision from the U.S. Court of Appeals for the Ninth Circuit, which held that a similar day laborer law in Redondo Beach, California violated day laborers' free speech rights.
Two Tax Crimes Considered Aggravated Felonies for Purposes of Immigration Law. The U.S. Supreme Court, in a 6-3 decision issued February 21, affirmed a lower court's ruling and held that two permanent residents' convictions for willfully filing false tax returns and aiding in the preparation of false tax returns constituted “aggravated felonies” for immigration law purposes. Under the Immigration and Nationality Act (INA), lawful permanent residents who commit aggravated felonies are subject to deportation and are not eligible to apply for cancellation of removal before an immigration judge. In its decision, the court's majority found that the two tax crimes fell within the aggravated felony definition because they were crimes of fraud in which a victim (here, the government) suffered a loss of more than $10,000.
Budget Request Signals New Immigration Enforcement Priorities. The federal government has released its budget request for fiscal year (FY) 2013, and in the process identified a shift in several of the administration's immigration enforcement priorities. The new budget proposes a reduction in funding for the controversial 287(g) immigration enforcement program of $17 million, noting that the nationwide deployment of the Secure Communities program by FY 2013 reduces the need for 287(g). The budget further calls for a reduction of $170 million for the State Criminal Alien Assistance Program (SCAAP), a Department of Justice (DOJ) program that reimburses states for the costs of incarcerating noncitizens who are convicted of crimes. In contrast, the budget requests increased funding for the Alternatives to Detention (ATD) program and the Criminal Alien Program (CAP).
Immigration Court Filings Increase Again in 2011, Possible Decline in 2012. The number of immigration cases filed in the nation's immigration courts jumped 28 percent between FY 2007 and FY 2011 (rising from 335,923 cases to 430,574 cases), according to the Executive Office of Immigration Review (EOIR). While the 2011 numbers indicate the continuance of an upward trend in filings, however, there is some evidence that the situation may reverse itself this fiscal year.
Last month, the Transactional Records Access Clearinghouse (TRAC) found that, in the first quarter of FY 2012 (between October and December 2011), the number of cases filed in immigration courts was 33 percent lower than the number of cases filed during the previous quarter. TRAC attributes this drop to the Obama administration's new prosecutorial discretion policy, which encourages immigration agents, officers, and attorneys to refrain from placing in removal proceedings noncitizens who are deemed of “low priority” for deportation.
New H-2B Final Rule. The U.S. Department of Labor (DOL) published a new final rule changing the requirements for U.S. employers participating in the H-2B program, a visa category that allows employers to sponsor foreign-born workers for temporary, non-agricultural jobs. The new rule requires prospective H-2B employers to provide documentation of their inability to recruit and hire an adequate number of U.S. workers to meet their temporary labor needs and to forward job openings to State Workforce Agencies (SWAs), which assist in recruiting employees. The prior version of the program allowed employers to merely attest that they could not find adequate U.S. workers. The new rule also states that, if employers pay the transportation and lodging costs of H-2B workers, they must also pay such costs for similarly placed U.S. workers.
New Performance-Based National Detention Standards. U.S. Immigration and Customs Enforcement (ICE) has released new standards governing all of its immigration detention facilities, the first complete change in the rules since 2008. The standards recommend a series of changes in detention conditions, including: providing detainees with up to four hours per day of recreation, allowing detainees to have longer contact visits with guests and relaxing the requirements for contact visits, providing that medical grievances should be submitted in sealed envelopes to medical professionals, requiring translators to be on hand for medical appointments when a detainee is limited English proficient, and requiring more comprehensive mental and physical health screenings at the time of a detainee's admission. Many immigrant advocates, however, believe that the new standards do not go far enough in creating a “civil” immigration detention system. They have also criticized the fact that the standards are not legally enforceable.
Filing Window Closes for Salvadoran TPS Re-Registration. U.S. Citizenship and Immigration Services (USCIS) closed on March 12 its 60-day re-registration window for Salvadoran nationals in the United States seeking to apply for an extension of Temporary Protected Status (TPS). The Department of Homeland Security (DHS) grants TPS – which includes a grant of temporary work authorization and protection against deportation – to eligible noncitizens from designated countries who are unable to return to their countries of origin because of armed conflict or a natural disaster.
In addition to El Salvador, six countries are currently designated for TPS: Haiti, Honduras, Nicaragua, Somalia, South Sudan, and Sudan. El Salvador was the first country to be designated for TPS in 1990. As of 2008, approximately 229,000 Salvadorans in the United States had TPS protection.
State and Local Policy Beat in Brief
Mississippi House Passes Immigration Enforcement Bill. On February 24, Mississippi's House of Representatives passed HB 488, a strict immigration enforcement law that combines elements of Arizona's SB 1070 and Alabama's HB 56, both highly controversial immigration laws. If it becomes law, HB 488 would require police officers to check the immigration status of stopped individuals whenever there is “reasonable suspicion” that they are unauthorized immigrants; would require public schools to determine the immigration status of enrolled students; and would prohibit unauthorized immigrants from entering into business transactions with city or state governments.
Though the bill has not yet passed the Mississippi Senate, its passage in the House is significant, largely because legislators in most other states appear to be holding off on introducing measures modeled after SB 1070 until the Supreme Court rules on the law's constitutionality later this year. Mississippi Governor Phil Bryant has said that he will sign the bill into law, should it pass both houses.
Split Decision in Fremont, Nebraska Case. On February 20, U.S. District Court Judge Laurie Smith Camp struck down as unconstitutional a key part of Fremont, Nebraska's 2010 housing ordinance aimed at regulating illegal immigration. Judge Smith Camp found that the portion of the ordinance allowing landlords to be penalized for harboring unauthorized immigrants if they permitted such noncitizens to rent homes or apartments was preempted by federal law. But the judge ruled that the city could move forward with implementation of two other parts of the ordinance: a provision requiring all potential renters over the age of 18 to apply for rental licenses and allowing the city to deny licenses to unauthorized immigrants and a provision requiring all government contractors to participate in the E-Verify program. Both sides in the Fremont case plan to appeal.
Baltimore Mayor Issues Executive Order Advising Police Not to Ask About Immigration Status. Stephanie Rawlings-Blake, the mayor of Baltimore, Maryland, issued an executive order instructing city police officers not to ask stopped or arrested individuals about their immigration status. According to the mayor's office, the new order is intended to ensure that noncitizens are willing to report crimes and cooperate with the police. The move follows a decision by Immigration and Customs Enforcement (ICE) to begin implementing the Secure Communities program in Baltimore.
Secure Communities is a federal immigration enforcement program that screens the immigration status of all arrested individuals in a particular jurisdiction, so that ICE can decide whether to detain or place in removal proceedings an arrested individual.
ICE Settlement in New Haven Lawsuit. In an unprecedented move, ICE agreed to pay $350,000 to settle a lawsuit brought by 11 noncitizens who were arrested at their homes in the middle of the night in June 2007 as part of a fugitive immigrant operation. The agency has also agreed not to pursue removal cases against the 11 individuals.
ICE's June 2007 New Haven operation, which resulted in the arrest of more than 30 noncitizens, garnered national media attention and criticism, largely because critics alleged that ICE purposely conducted the New Haven raid in response to the city's decision to allow all residents – regardless of immigration status – the opportunity to apply for city identification cards. According to media reports, the new settlement is unusual not only because it constitutes the largest amount of money ever paid to settle a case having to do with an immigration raid, but also because it combines a monetary settlement with protection from removal for the noncitizen plaintiffs.