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Cite as "Posted on AILA InfoNet at Doc. No. 02100445 (Oct. 4, 2002) ." While Senate Action on Homeland Security Uncertain, Advocacy Still Important The Senate currently is stymied on how to proceed on homeland security legislation, with Senators largely deadlocked on the issue of civil service protections. Immigration advocates have focused on the issue because of the dramatic impact such a radical reorganization of government will have on every aspect of immigration. In a very partisan environment, the bill AILA supports—the Lieberman Amendment to H.R. 5005 (this is the House bill which the Senate took up, removed the House language and substituted the Senate bill, S. 2452 that passed the Senate Governmental Affairs Committee), has not moved on the Senate floor. However, a competing measure, the Gramm/Miller amendment (S. 2794), has also generated insufficient support for it to move on the Senate floor. (See the September 20 Washington Update for details on these bills.) The Bush Administration’s views on immigration have been reflected in neither the House-passed bill nor the homeland security bill passed by the Senate Governmental Affairs Committee, but are reflected in the Gramm/Miller bill. The Administration supports placing all of our immigration functions and visa processing within the largest division of the proposed Department of Homeland Security—the division of Border and Transportation Security. (Along with immigration, this division would also include Customs, the Coast Guard, Federal Protective Services, the Transportation Security Administration, and the Animal, Plant, and Health Inspection Service.) This placement would make humane services to immigrants and effective enforcement of our immigration laws nearly impossible by burying our immigration functions within this large division. The Administration also supports placing the Executive Office for Immigration Review (EOIR) within the new department. AILA strongly opposes moving the EOIR into Homeland Security. Allowing the immigration courts to be transferred to the new department would threaten due process, decrease accountability, and reduce public confidence in the decisions reached. AILA instead supports the creation of an independent agency so that our immigration courts are impartial. Such a separation would allow for meaningful checks and balances. Recently, the Administration has floated a revision of its positions on how immigration and the EOIR are to be organized. They have proposed the creation of a separate, fifth, division for immigration that would include services and enforcement, but would move inspections and the Border Patrol to the division of Border and Transportation Security. This organization of immigration functions would lead to problems in coordination and different interpretations and implementation of the law at our borders and interior. The Administration has also proposed maintaining the EOIR within the Justice Department, while granting the Attorney General even more authority than that office now holds, thereby undermining the notion of checks and balances and due process. While it is unclear at this time how the Senate will proceed on this issue, or even whether a vote on creating a homeland security department will take place before this session of Congress ends, the Senate may return to the issue next week. Notwithstanding these uncertainties, it is important that immigration advocates contact their Senators to express support for the Senate’s H.R. 5005 that recognizes the following: 1. Our immigration functions should be organized within a fifth division: While AILA supports keeping immigration out of the proposed Homeland Security Department, if Congress and the Administration opt to include our nation’s immigration functions (both adjudications and enforcement) within the department, they should be elevated within the homeland security department by creating a fifth division lead by an Undersecretary who would coordinate the division’s missions and provide strong leadership. This division should include both inspections and the Border Patrol. 2. We must protect the integrity of the immigration courts: AILA opposes moving the EOIR into the Homeland Security Department. AILA supports the creation of an independent court. At minimum, we believe that the EOIR should remain at the Department of Justice while codifying the courts’ structure, authority and jurisdiction. It is important that our immigration courts be independent, impartial and include meaningful checks and balances. 3. Care and custody of unaccompanied minors: We
believe that the Homeland Security Department is ill equipped to provide
such care to children. We strongly support moving this function to the
Office of Refugee Resettlement (ORR), and with it, the authority to
appoint guardians ad litem and counsel to represent the interests of
these minors House and Senate Pass Department of Justice Authorization
Bill Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. (Section 11018): Extends until 2004 the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J–1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30. Posthumous Citizenship for Non-Citizen Veterans. (Section 11030): Extends the deadline for allowing family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. in past wars. Extension of H-1B Status for Aliens with Lengthy Adjudications. (Section 11030A): Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000 (Pub. L. No. 106-313), this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point. Application for Naturalization by Alternative Applicant if Citizen Parent Has Died. (Section 11030B): Amends the INA to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years. Removal of Conditional Basis of Permanent Resident Status for Certain Alien Entrepreneurs, Spouses, and Children. (Section 11031): This provision applies to investors who filed and had their Immigrant Petition by an Alien Entrepreneur (Form I-526) approved between January 1, 1995 and August 31, 1998, obtained conditional resident status and filed a Petition by Entrepreneur to Remove Conditions (Form I-829). The section sets forth numerous new procedures for determining whether an eligible investor can have the conditions removed from his permanent resident status. It also states that an investor whose conditional status is terminated by the USCIS may have that decision reviewed by an immigration judge. This section also provides that any alien who was admitted on a conditional basis as a child of an investor shall remain a “child” for purposes of this title. Conditional Permanent Residence for Certain Alien Entrepreneurs, Spouses, and Children. (Section 11032): This provision applies to individuals who filed an Immigrant Petition by an Alien Entrepreneur (Form I-526) that was approved by the USCIS between January 1, 1995 and August 31, 1998, and who timely filed an adjustment of status application or applied for an immigrant visa overseas, but who never became conditional residents because they remained overseas or because the USCIS never acted on their adjustment application. The provision provides that if the USCIS revoked the Petition by an Alien Entrepreneur (Form I-526) on the ground that the investor failed to meet the capital investment requirement, that revocation is to be disregarded for purposes of this bill, and the adjustment or immigrant visa application overseas is to be treated as reopened. Once the investors become conditional residents, they must file a Petition by Entrepreneur to Remove Conditions (Form I-829) within two years. Definition of Full Time Employment for Investors. (Section 11035): This section defines full-time employment for purposes of section 203(b)(5) of the INA as a position that requires at least 35 hours of work a week. Eliminating Enterprise Establishment Requirement for Alien Entrepreneurs. (Section 11036): Eliminates the “establishment” requirement from section 203(b)(6) of the INA. Investors must only show that they have invested in a commercial enterprise and do not have to show that they established one. This section also eliminates the “establishment” requirement from section 216A of the INA for investors who have filed a Petition by Entrepreneur to Remove Conditions (Form I-829). Investors must also show that they have sustained their investment actions over the required two-year period. The section also makes clear that the term “commercial enterprise” may include a limited partnership. Amendments to Pilot Immigration Program for Regional Centers to Promote Economic Growth. (Section 11037): Amends section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 to refine the description of an EB-5 regional center and clarify that the regional centers can promote increased export sales, improve regional productivity, job creation or increase domestic capital investment. The section also indicates that the USCIS should approve applications for EB-5 regional center status where the application is based on a general prediction concerning the kinds of commercial enterprises that will receive capital from investors, the jobs that will be increased directly or indirectly as a result of the investment, and the positive economic impacts that will result from the investment.
Under the House bill, the Secretary of Defense may assign members of the Army, Navy, Air Force, and Marine Corps to assist the USCIS in preventing the entry into the United States of terrorists, drug traffickers, and illegal aliens. The bill also allows these troops to assist the U.S. Customs Service in the inspection of cargo, vehicles, and aircraft at points of entry into the United States to prevent the entry of weapons of mass destruction, illegal drugs, or other terrorist or drug trafficking items. The legislation requires that the Attorney General or the Secretary of the Treasury make the request for the assignment, and the request be accompanied by a certification by the President that the assignment is necessary to respond to a threat to national security posed by the entry into the United States of terrorists or drug traffickers. The legislation also requires that military personnel successfully complete a training program to be established by the Attorney General or Secretary of the Treasury. The legislation specifically prohibits any members of the military to conduct a search, seizure, or other similar law enforcement activity or to make an arrest. A conference committee is currently working out the differences
between the House and Senate versions of the legislation, and it remains
to be seen whether the Goode amendment will make it into the final version
of the bill. AILA has expressed its opposition to this proposal, and
will continue to work to remove the language from the legislation. Currently,
the President is already authorized to deploy troops on the U.S. border
for military purposes. Expanding that authority to allow the Secretary
of Defense to authorize the use of military personnel for law enforcement
purposes is inappropriate and unnecessary. AILA urges its members to
contact their elected officials and express their opposition to the
use of the military along our borders. House Subcommittee Approves Border Student Commuter
Act At a September 25 mark-up, the House Immigration, Border Control
and Claims Subcommittee approved the Border Commuter Student Act of
2002 (H.R. 4967), introduced by Representative Jim Kolbe (R-AZ). The
proposed bill would establish a border commuter nonimmigrant classification
under the F and M visa categories for Canadian and Mexican nationals
who maintain actual residence in their country of nationality and commute
to the United States for full or part-time study. An identical bill
(S. 2742), sponsored by Senator Kay Bailey Hutchinson (R-TX), is scheduled
to be marked-up by the Senate Judiciary Committee next week. Senate Immigration Subcommittee Holds Oversight Hearing
on the Detention and Treatment of Haitian Asylum Seekers Among the witnesses testifying were Thomas Wenski, auxiliary bishop of Miami and chairman, Migration Committee of the U.S. Conference of Catholic Bishops; Dina Parks, National Coalition for Haitian Rights; Cheryl Little, Florida Immigrant Advocacy Center; and Marie Ocean, a former Haitian detainee. Both witnesses and lawmakers expressed grave concerns over what was characterized as the USCIS’s discriminatory Haitian policy. At the heart of the concern was the USCIS’s newly revealed policy, initiated in December, which calls for the detention of all Haitian asylum seekers who arrive by boat while their claims are being adjudicated. In reference to this singling out of Haitians for detention, Ms. Little stated that “this policy is wholly inconsistent with U.S. policy regarding race and national origin.” While further explaining that Haitians were being treated differently than similarly situated asylum seekers of other nationalities and races, Ms. Little added that the “USCIS has not provided any valid, nondiscriminatory justification for its Haitian policy.” Senator Kennedy weighed in by saying “Haitians have been singled out for more restrictive treatment. Such a policy appears to violate U.S. law, which, according to a 1995 U.S. Supreme Court decision, must be based on individualized parole determinations without regard to race or national origin.” The harsh treatment faced by the Haitian detainees was also of great concern to the witnesses and lawmakers. In addition to what were characterized as nightmarish conditions, Haitian asylum seekers from the same family have been detained in centers as far apart as Pennsylvania and Florida. In addressing this detention policy, Representative Conyers stated that, “the separation of mothers from their children is disgraceful.” In what seemed to capture the feeling of the hearing participants, Mr.Wenski said that “there are unfortunate parallels between the way China treats North Korean asylum-seekers and the manner in which the United States treats asylum-seekers from Haiti.” Senator Kennedy ended the hearing by promising to “keep after this [issue] until we get something done.”
Among the witnesses testifying were Janis Sposato, Assistant Deputy Executive Associate Commissioner for the USCIS’s Immigration Services Division; Glenn A. Fine, Justice Department Inspector General; Stephen Edson, acting managing director, Bureau of Consular Affairs, State Department; and David Ward, President, American Council on Education. The $37 million SEVIS program requires schools to monitor foreign students by collecting registered visa holders’ names, addresses, phone numbers, class schedules and any changes to the students’ personal information. Such personal information could include whether the student dropped classes, dropped out of school, or was arrested. The USCIS is seeking to implement SEVIS by the January 30, 2003, deadline and expects roughly 7,500 colleges and universities to participate. However, consistent with witness testimony during the September 19 House Subcommittee on Immigration, Border Security, and Claims hearing on the progress of SEVIS, there is some question as to the level of implementation by that date. As in her September 19 testimony, Ms. Sposato characterized the expected progress of SEVIS as being available and operational in time to meet the January deadline. She also added that although SEVIS will be operational by the deadline, “the training may not be as full and complete as we would like it to be.” Messrs. Fine and Ward, however, voiced skepticism about the prospects of SEVIS being fully implemented by the deadline, specifically in reference to college employee training on the SEVIS system. There is concern that if SEVIS is not fully operational by the deadline, thousands of new foreign students who are not already in the U.S. would be unable to enter the U.S. and start their education. USCIS Moving Forward with Departure Requirements for
Foreign Nationals Subject to Registration The departure requirements follow in the wake of an USCIS regulation requiring foreign nationals from Sudan, Syria, Libya, Iran and Iraq to undergo special registration, photographing and fingerprinting requirements upon their arrival in the United States. This rule went into effect on September 11, 2002, and is currently being interpreted by the USCIS to include citizens and nationals of Pakistan, Saudi Arabia, and Yemen who are males between the ages of 16 and 45, as well as other aliens considered a national security risk. According to a confidential USCIS memo, made public by WorldNetDaily.com, the USCIS may be expanding the number of countries whose nationals are subject to the special registration rule. In addition, the USCIS may start requiring foreign nationals, no matter their nationality, to undergo special registration if they have done any of the following: taken unexplained trips to certain designated countries; have other instances of unexplained travel; previously overstayed a nonimmigrant visa; or match characteristics established by intelligence information. (See AILA InfoNet Doc. No. 02092442). Day Laborers Call for Legislative Reforms Representative Luis Gutierrez (D-IL), who was the congressional sponsor for the briefing, presented the principles behind the Day Labor Fairness and Protection Act. The Act, which will be the basis of new legislation sponsored by the Congressman, would incorporate protections for day laborers in an effort to combat exploitation. Such protections would include: wage and hour rights; guarantees of first amendment rights and safe work environments; protection of day laborers seeking to enforce their rights; requirements that day labor service agencies and employers must register with the Department of Labor; prohibitions on the use of day laborers as strike breakers; and the creation of day laborer hiring sites. The Congressional briefing coincided with the release of a new GAO report on Day Laborers: Worker Protections: Labors’ Efforts to Enforce Protection for Day Laborers Could Benefit From Better Data and Guidance. The report represents the culmination of a multi-month study of the problems day laborers encounter and the response by federal labor law enforcement agencies. The report recommends that the Department of Labor obtain better information about the presence of day laborers and violations they experience. It also recommends that the Department provide guidance to its local offices to ensure more consistent enforcement of protections of day laborers. “It’s a good first step,” concluded Representative Gutierrez. MEDIA SPOTLIGHT On October 1, El Norte published a letter to the editor
written by Matt Trevena (Texas) on citizenship. Lincoln Stone (Southern
California), Stephen Yale-Loehr (Upstate New York), Paul Virtue (Washington,
D.C.), Henry Liebman (Washington State), and Steven E. Perlman, (New
York) were quoted in a September 27 New York Times story about provisions
in the Department of Justice authorization bill that would assist EB-5
investor visa holders. Greg Boos (Washington State) wrote an article published September 28 in the Bellingham Herald regarding the NEXUS alternative inspection program that allows prescreened, low-risk travelers to cross the U.S.-Canada border in a dedicated lane. Note: Please submit all articles, letters-to-the-editor,
etc. for inclusion in “Members in the News” to Judy Golub
of the AILA Advocacy Department (jgolub@aila.org). Did You Know? --Senator Ben Nighthorse Campbell (R-CO), quoted in a September 27 Denver Post article concerning the Senator’s introduction of a private relief bill on behalf of Jesus Apodaca, an 18-year-old honor student that fellow Colorado lawmaker Tom Tancredo is seeking to have deported. CONTRIBUTORS American Immigration Lawyers Association 47AU2016 (10/07/2002) For more immigration news, please click here
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