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A Good Day for Arizona’s Immigration Enforcement Law at the Supreme Court

April 25, 2012 By FAIR Gov't Relations Team 12 Comments

As the saying goes, “Don’t count your chickens before they hatch.” It also ain’t over until the ladies and gentlemen who wear the black robes render their decision (expected in June). But from the tenor of the oral arguments and the questions posed by the eight U.S. Supreme Court justices at today’s hearing (Elena Kagan recused herself due to her previous tenure as Solicitor General), there is reason to be optimistic that the Court will side with Arizona on key provisions of its immigration enforcement law, SB 1070.

This morning’s oral arguments indicate that the justices were skeptical about the Obama Administration’s arguments for seeking to enjoin key provisions of SB 1070. Even Justice Sonia Sotomayor, who was appointed to the high court by President Obama, stated that the Administration’s arguments pertain to status verification checks were “not selling well.”

In particular, the Justices expressed skepticism about the Obama Administration’s contention that its enforcement priorities (or lack thereof) preempt SB 1070. Justice Antonin Scalia asked U.S. Solicitor General Donald Verrilli, who was arguing the case for the Administration, whether he knew of any cases in which the basis of preemption is the “Attorney General’s enforcement discretion,” calling such “an extraordinary basis for saying that the state is preempted.” This is because the standard for preemption has always been based on congressional intent—not the whim of whichever President currently resides in the White House.

Justice Scalia also dismissed Solicitor General Verrilli’s argument that federal law preempts SB 1070 because it would interfere with the national government’s ability to forge and maintain relationships with other countries. In response to this argument, Justice Scalia incredulously asked him, “So we have to enforce our laws in a manner that will please Mexico?”

Finally, the Justices questioned the Administration’s desire to enforce U.S. immigration law. Mid-hearing, Chief Justice John Roberts hit the nail on the head when he made the following comment to Solicitor General Verrilli, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”

Based on what we saw and read about today’s Supreme Court hearing, we have strong reason to be optimistic about the forthcoming ruling…but, of course, it ain’t over until the eight men and women in black robes begin writing.

Filed Under: Border, Crime, Law, Population, Society, White House Watch

California Sides with Illegal Aliens before the Supreme Court

April 3, 2012 By FAIR Gov't Relations Team 9 Comments

The following story appeared in FAIR’s April 2 Legislative Update. To subscribe to FAIR’s Legislative Update click here.

Last week, the State of California and several other states, filed a brief with the United States Supreme Court urging the Court to strike down Arizona’s immigration enforcement law, SB 1070. (California Amicus Brief) The Supreme Court is scheduled to hear oral arguments on the Obama Administration’s challenge to SB 1070 April 25th and in anticipation, dozens of interested parties, organizations, and even foreign governments have filed briefs both in support and opposition to the law. The other states joining California in the amicus brief are New York, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Oregon, Rhode Island, and Vermont.

The core of California’s objection to SB 1070 rests on the notion that through SB 1070, Arizona has impermissibly adopted its own removal policy — a power CA argues is “exclusively [a] federal function.” (CA Brief at 3) While states have no authority to remove (deport) illegal aliens (nor is the state of Arizona claiming such authority), California argues that the enforcement activities Arizona is encouraging through SB 1070 – the identification, apprehension, and detention of illegal aliens – are by definition part of the removal process. Thus, Arizona has adopted its own “removal policy.”

California then argues that Arizona’s removal policy, as embodied by SB 1070, is impermissible because it conflicts with the federal removal “scheme.” (Id.) Federal law, California asserts, has long recognized that immigration enforcement has “uniquely devastating effects” on “people who are otherwise law abiding and productive members of society.” (Id.) Describing SB 1070 an “overzealous and indiscriminate attempt” to enforce the law, California argues that Arizona’s law conflicts with “federal removal policy” in two ways. (CA Brief at 3, 9). First, California claims that SB 1070 requires state and local officers to engage in the arrest and detention of illegal aliens without any federal oversight. Second, California argues that SB 1070 supplants the Executive Branch’s discretion over the administration of the removal process and thus “interferes with the achievement of the federal priorities Congress has set.” (CA Brief at 3-4) California then concludes that because SB 1070 conflicts with this federal removal scheme, it is preempted by federal law.

Through this argument, however, California ignores the simple fact that nothing in SB 1070 supplants the authority of the federal government to decide whether to remove an illegal alien. To the contrary, SB 1070 merely requires Arizona officers to verify immigration status in certain circumstances and report it to the federal government. The law also creates state offenses that mirror already existing federal laws.

California’s argument also ignores that numerous federal statutes actually authorize and encourage local officers to identify, apprehend, and detain illegal aliens. For example, Section 1373(c) of the United States Code requires that the federal government respond to all local inquiries about immigration status. Section 1373(a)-(b) prohibits laws that interfere with the sharing of immigration data between local governments and the federal government. And, Section 1357(g)(10) provides that local law enforcement does not need to enter into an agreement with the federal government to cooperate in the enforcement of immigration laws. (See also INA § 287(g)(10))

In addition, California ignores that the Administration itself will soon require all jurisdictions – through the implementation of Secure Communities – to identify illegal aliens booked at jails (before conviction). And, through regulations, the Administration also requires that local jurisdictions detain illegal aliens if federal immigration officers place a hold on them (called a detainer). (See 8 C.F.R. 287.7(d))

Finally, California’s argument ignores a plethora of case law that confirms that state and local authorities have the inherent or general enforcement authority to assist in the enforcement of immigration laws. See e.g. United States v. Salinas-Calderon (10th Cir. 1982); United States v. Vasquez-Alvarez (10th Cir. 1999).

SB 1070 therefore does nothing more than further Congressional intent that local jurisdictions participate in the identification, apprehension, and detention of illegal aliens. Moreover, because Congress has encouraged, and in some cases required, local jurisdictions to engage in these activities, California cannot reasonably argue that they are equal to the removal of illegal aliens — a power Congress has reserved for the federal government.

Filed Under: Border, Crime, Law, Local, National, Politics, Population, Society, White House Watch

Obama Administration to Help Visa Holders Find Jobs

February 7, 2012 By FAIR Gov't Relations Team 3 Comments

The following story appeared in FAIR’s February 6th Legislative Update. To subscribe to FAIR’s Legislative Update click here.

The Department of Homeland Security announced last week it intends to issue regulations in the coming months to amend several visa programs in order to help aliens find jobs in the U.S. or keep the jobs they have. (DHS Website, Jan. 31, 2012)

One of the major changes the Obama Administration intends to enact is expanding the scope of qualifying students who may stay and work for an extended period in the U.S. after graduation. President Obama plans to implement this policy shift by expanding the Optional Practical Training (OPT) program, which currently allows foreign students (F-1 visa holders) who graduate from U.S. colleges and universities in certain fields to remain in the U.S. to work for up to a year following graduation. (See 8 CFR 214.2(f)(10)(ii)) Last spring, the Administration extended the program an additional 17 months for students graduating with a STEM degree to allow them to remain in the country to work for a total of 29 months upon graduation. (FAIR Legislative Update, May 23, 2011; ICE Press Release, May 12, 2011) The Administration’s latest announcement proposes to expand eligibility for the 29 month OPT program to foreign students currently completing a non-STEM degree so long as they have previously obtained one. The Administration also stated that it intends to continue reviewing additional fields to add to a list of qualifying STEM programs.

Another major policy shift proposed by the Administration is to grant work authorization to certain spouses of H-1B holders. Incorrectly touted by the business lobby as a “high-skilled” visa program, the H-1B program allows employers to petition for an alien to come to the U.S. to fill a vacancy in a “specialty occupation” that may not even require a four-year degree. Under the Administration’s proposal, certain spouses of H-1B visa holders would be allowed to work, taking scarce American jobs, while the H-1B holding spouse seeks a green card.

Other changes announced by the Administration would:

* Allow spouses of student visa holders to enroll in academic classes;
* Loosen documentation requirements to be eligible for an “outstanding professor and researcher” visa (INA § 203(b)(1)(B));
* Allow E-3 and H-1B1 visa holders to continue working for up to 240-days after their visa has expired; and
* Create an initiative to explore how current immigration law can be exploited to expanded entrepreneurial visa programs.

According to DHS’ website, the initiatives are aimed at making the U.S. “more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation.”

The Administration’s announcement flies in the face of research refuting the need to bring in foreign workers to fill STEM jobs. In November, FAIR’s research department released a report revealing that:

* There is no evidence that there is, or will exist in the foreseeable future, a shortage of qualified native-born scientists and engineers in the U.S.;
* Wages in STEM occupations have not kept pace with those of other college graduates; and
* Some employers even acknowledge that foreign workers were often prepared to work for less money than U.S. workers and this factored into the employers’ hiring decision.

(See FAIR Report, Jobs Americans Can’t Do? The Myth of a Skilled Worker Shortage, Nov. 2011)

The Administration did not state how soon these changes would be taking effect, merely that they would be sometime in the “future” and were part of the Administration’s dedication to “comprehensive immigration reform.”

Filed Under: Border, Jobs, Law, National, Politics, Population, Society, White House Watch

President Obama is “Interested” in Tech Industry H-1B Abuses

January 31, 2012 By Eric Ruark 28 Comments

There was an extraordinary exchange Monday evening on a Google+ “Hangout” between President Obama and a woman whose husband is an unemployed semiconductor engineer. She asked the President why H-1B visas are still being issued when there are many Americans like her husband –struggling to find permanent employment in the tech industry. President Obama’s answer perfectly illustrates why, to borrow one of his favorite terms, “our immigration system is broken.”

The President answers that “what industry tells me” is that there is a lack of skilled workers in the U.S., which is a little like saying, “the foxes tell me the henhouse is secure.” The reality is that the tech industry is bringing in tens of thousands of new long-term foreign guest workers every year (there are about 650,000 H-1B workers in the United States right now), who are displacing highly-skilled Americans. So instead of directing the government agencies responsible for administering the H-1B program to ensure that American workers are not adversely affected, the President is taking the word of the employers who are using H-1B workers to drive down wages and put Americans out of work. He finds the unemployed American engineer’s situation “interesting” and wants to find out what is happening.

But there is an even more telling statement made by President Obama that demonstrates a breathtaking ignorance of how the H-1B program operates. He believes it should only be used for companies who say they can not find qualified American workers. But employers are not required to do any such thing. The federal government allows employers to bring in H-1B guest workers even though there is an overabundance of skilled American workers available. Only “H-1B dependent” employers (more than 15% of their workforce) have to “attest” that they “attempted” to recruit a U.S. worker, and these attestations are virtually rubber stamped by the Department of Labor. Between 2000 and 2009, an astounding 94% of all H-1B applications were approved. When the U.S. Citizenship and Immigration Services agency (USCIS) examined a random sample of H-1B applications in 2008, it found that 21% contained violations, including 13% that were fraudulent. Obviously the federal government is not really concerned about whether or not the industry’s claims are true.

In 2007, then Senator Obama said this: “The intent is that H-1B visas only be issued if qualified American workers are unable to take the jobs in question….I fully agree that H-1B hires should be a last recourse as a matter of labor policy.” If that is his position then he now has the power to make sure that this becomes a matter of policy. The President says he wants to follow up on this issue. We will take him at his word and recommend he begins by reading FAIR’s report on the subject. He should also talk to Sens. Durbin and Grassley, who understand that the “H-1B visa program is plagued with fraud and abuse and is a vehicle for outsourcing American jobs.” They have drafted legislation that would require employers to actually demonstrate a need for foreign workers, and would close the loophole that allows employers to pay foreign workers below prevailing industry wage rates.

Filed Under: Education, Jobs, National, Politics, Population, Society, White House Watch

Tourist Visas Without Interviews: Playing with Fire

January 30, 2012 By Jack Martin 6 Comments

President Obama has already forgotten a key lesson inflicted on the nation by the 9-11 terrorists. The U.S. embassy in Saudi Arabia decided it would be more efficient and promote travel to the United States if it stopped requiring visa applicants to come to the consular section of the embassy for an in-person interview. As a result 13 of the 19 terrorists obtained their visas easily in that country even though in some instances the applications were not even complete. This program was termed “Visa Express.”

President Obama, in his January 19 speech at Disney World, outlined a program similar to Visa Express. He wants to reduce the visa interview requirement in countries where they are still required. While he mentioned the need to keep national security in mind, he called for a major increase in the number of visas issued by decreasing the number of interviews and speeding up the interviews that were still required. These recommendations are a throwback to a pre-9-11 mentality of giving priority to the number of visas issued while downplaying grounds of ineligibility – whether because of a threat to our security or a threat to U.S. jobs sought by foreign workers. This policy makes no sense in light of the 9-11 terrorist attacks and it is foolhardy as the Obama administration dismantles interior enforcement against illegal alien workers unless they commit a major crime.

Filed Under: Border, Crime, Jobs, National, Politics, Population, Society, White House Watch

Winning the Race to the Bottom

January 25, 2012 By Eric Ruark 5 Comments

President Obama unsurprisingly devoted a good portion of his State of the Union address to “jobs.” But what he said was disheartening to Americans, unless you are an employer eager for access to cheap labor. The President has even stopped paying lip service to the importance of labor unions. For a president who has made corporate irresponsibility and income inequality the main focus of his reelection campaign, last night he sounded a lot like the President of the U.S. Chamber of Commerce. (Take away the Chamber’s support for the Keystone Pipeline and Mr. Obama’s speech sounds eerily similar to the one delivered by the Chamber’s president.)

Here is what President Obama said: “It’s time to stop rewarding businesses that ship jobs overseas, and start rewarding companies that create jobs right here in America.” Nice rhetoric that on its own might give a glimmer of hope in a economic climate that, despite the administrations best efforts to put lipstick on a pig, Americans know all too well is not showing substantive improvement. But President Obama also wants Congress to pass “comprehensive immigration reform right now.” And, in order to satisfy the “many business leaders who want to hire in the United States but can’t find workers with the right skills,” President Obama wants to greatly expand guest worker programs. He even makes an argument that is patently false. He says that “growing industries in science and technology have twice as many openings as we have workers who can do the job.” As FAIR has pointed out, the National Science Foundation has found that there are at least 2½ times more tech workers than there are available jobs.

What President Obama proposes is to keep more jobs in the U.S. while bringing in more foreign workers to fill those jobs. That way, U.S. companies can depress wages enough in this country in order to remain competitive with countries where workers are ruthlessly exploited. Now I know that P.T. Barnum is purported to have said “there’s a sucker born every minute,” but does President Obama really think that Americans are going to believe that the best way to “put America back to work” is to allow U.S. employers to bring in millions more foreign workers? Can President Obama circumvent the law of supply and demand in the labor market as easily as he has bypassed U.S. immigration law? “[I]t’s getting more expensive to do business in places like China,” said President Obama. So, his solution is to make it less expensive to do business in American by depressing wages and lowering working conditions to in order to convince companies to locate their operations here. President Obama may not like Chinese tires, but he sure seems keen on their economic model.

Filed Under: Jobs, Law, National, Politics, Population, Society, White House Watch
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