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October 2011, Volume 18, Number 4

Congress: E-Verify, States, Republicans, 9/11

The House Judiciary Committee approved the Legal Workforce Act (HR 2164) to phase in E-Verify for all US employers over four years, with the smallest employers the last to be required to participate. Under the LWA, employers would use DHS's web-based system to verify the legal status of all new hires and stop completing I-9 forms; state E-Verify laws would be repealed. The LWA would allow employers to use E-Verify to check the legal status of job applicants as well as new hires.

LWA would exempt farmers from E-Verify for three years. Despite this special treatment, many farm groups oppose mandatory E-Verify unless it is coupled with a "workable" guest worker program, that is, an alternative to the current H-2A program that permits US farm employers anticipating labor shortages to hire legal guest workers. Until mid-September 2011, farm employers were exempted from re-verifying returning seasonal workers each year, a provision removed during markup.

Representative Lamar Smith (R-TX) called LWA a jobs bill that could open "millions" of jobs for US workers. He said: "E-Verify is a jobs killer, but only for illegal workers. For Americans and legal workers, it is a jobs protector." Senator Charles Grassley (R-IA) in June 2011 introduced a similar mandatory E-Verify bill (S 1196).

USCIS reported that 98.3 percent of the 15.6 million queries submitted to E-Verify in FY10 were confirmed as work-authorized in less than five seconds. The remaining 1.7 percent were tentative non-confirmations. Of these, about 18 percent or 47,000 employees were later confirmed as work-authorized when the employee challenged the E-Verify system. Almost all of the remaining 218,000 employees, who received a written notice from their employers that spelled out procedures for contesting the tentative non-confirmation, quit. DHS says that it may take up to 120 days to resolve tentative non-confirmations if employees contest them.

In Fall 2011, all federal contractors and 18 states required some or all of their employers to participate in E-Verify. Most observers expect that, since the US Supreme Court upheld Arizona's Legal Arizona Workers Act in May 2011, more states will require their employers to participate in E-Verify.

It is doubtful that the Senate will approve a similar mandatory E-Verify bill and that President Obama will sign it. Obama said several times said he opposed an enforcement-only approach to immigration reform. On June 29, 2011 he said: "We need to have a more balanced approach than just a verification system. We need comprehensive immigration reform." A Pew Poll found that 67 percent of Hispanic voters, and 43 percent of white voters, supported Obama in 2008.

States. The National Conference of State Legislatures reported that a record 1,600 immigration-related bills were introduced in the first eight months of 2011.

Arizona's Legal Arizona Workers Act (LAWA), effective in 2008, requires the state's employers to enroll in E-Verify and check the legal status of new hires. Employers found to have repeatedly hired unauthorized workers can have their business licenses suspended.

The US Supreme Court in May 2011 upheld LAWA in a 5-3 decision that concluded that state efforts to prevent employers from hiring unauthorized workers do not violate federal law. The Court noted that, by enrolling in E-Verify, Arizona employers create a "rebuttable presumption" that they have made a good-faith effort to avoid hiring unauthorized workers. Most employers can continue to complete I-9 forms when hiring workers and thus avoid state sanctions unless they are found to have hired unauthorized workers.

Arizona also led the way in enacting laws that make it unlawful for unauthorized foreigners to be in the state and require police to determine the legal status of persons they stop for other reasons if they suspect that those encountered are unauthorized foreigners. Arizona's SB 1070, signed into law in April 2010, has been partially stayed by a court injunction.

In 2011, Alabama (HB 56), Georgia (HB 87) and South Carolina (HB 4400) enacted SB 1070-type laws. Migrant advocates filed suits in Georgia, Indiana and Utah to prevent laws aimed at unauthorized foreigners enacted in these states from taking effect.

DOJ sued Alabama on August 1, 2011 to prevent HB 56 from going into effect as scheduled on September 1, 2011. A federal court granted a 30-day injunction blocking implementation, but later upheld most sections of HB 56, giving Alabama the most far-reaching state law aimed at unauthorized migrants. For example, the judge upheld a section of HB 56 that requires state and local police to verify a person's immigration status during routine traffic stops or arrests if "a reasonable suspicion" exists that the person is unauthorized, a provision in Arizona's SB 1070 that was blocked by federal courts.

The Alabama judge allowed other sections of HB 56 to go into effect immediately, including provisions that nullify any contracts entered into by an illegal immigrant; that forbid any transaction between an illegal immigrant and any division of the state; and one that requires elementary and secondary schools to determine the immigration status of incoming students and their parents (but not to turn away unauthorized students). The judge blocked the sections of HB 56 that make it a misdemeanor for an unauthorized alien to apply for, solicit or perform work and bar employers from claiming as business tax deductions any wages paid to unauthorized aliens. DOJ plans to appeal the judge's ruling allowing many parts of the Alabama law to go into effect.

An estimated five percent of Alabama workers are unauthorized, about the same share of unauthorized workers as in the US labor force. In October 2011, Alabama farmers and home builders complained of labor shortages, and some schools reported that enrollment of Hispanic students declined by up to five percent.

A co-sponsor of HB 56 said: "People over the last decade or so began to hire illegal workers, which because of competition forced the next guy to do it to survive in some market sectors. It's going to take a little time to straighten that out." He reported several calls from Alabama workers who got jobs when unauthorized workers quit. A sweet potato farmer predicting labor shortages countered that local and legal workers can get better jobs than harvesting sweet potatoes for several weeks.

In Albertville, Alabama, the exit of local Hispanics prompted a poultry processing plant to hold a job fair that attracted a crowd of Blacks, whites and Hispanics seeking jobs. Republican Senator Arthur Orr said: "It's going to take some time for the local labor pool to develop again, but outside labor shouldn't come in and just beat them every time on cost and put them out of business."

New Mexico Governor Susana Martinez, who promised to crack down on illegal immigration, had the state's efforts to re-verify the residency of foreigners who hold New Mexico driver's licenses blocked in September 2011 by a judge who cited "irreparable injury [from] constitutional deprivations to the applicants." New Mexico, Utah and Washington allow unauthorized foreigners to obtain driver's licenses if they show proof of residency.

California. The California Dream Act, AB 130, signed into law in July 2011, allows an estimated 41,000 unauthorized foreign college students to apply for $88 million in private scholarship funds administered by the state's public colleges and universities. California has since 2001 allowed unauthorized foreign students who attended California high schools for at least three years and graduated to pay in-state tuition.

The companion AB 131, signed in October 2011, allows unauthorized foreign students to receive public monies such as the Cal Grant, a $1.3 billion program that awards up to $12,192 a year to students who satisfy academic and low-income requirements (372,600 students received an average $4,500 in 2010-11). Making Cal Grants and other public aid available to unauthorized foreigners who attended school in California at least three years and affirm that they are attempting to obtain legal status is expected to cost up to $40 million a year.

Redondo Beach, California enacted an ordinance in 1987 that prohibited day laborers from standing "on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle." In 1989, the city added a subsection prohibiting drivers from stopping in traffic to hire laborers. Undercover city police officers posing as potential employers arrested over 50 day laborers in October 2004, prompting a suit to declare the no-soliciting ordinance unconstitutional. A federal district judge found the ordinance unconstitutional in 2006 and stopped its enforcement.

The US Court of Appeals for the Ninth Circuit in September 2011 reversed its 1986 decision upholding a no-day laborer solicitation by striking down the Redondo Beach ordinance in a 9-2 decision. Advocates for day laborers said that the Ninth Circuit decision makes all ordinances regulating or barring day laborers from congregating at building supply stores to solicit jobs suspect.

Republicans. Texas Governor Rick Perry became the front-runner for the Republican presidential nomination in September 2011, increasing scrutiny of his record on illegal migration. In 2001, Perry made Texas the first state to grant in-state tuition to unauthorized foreigners who graduate from the state's high schools and attend public universities, saying that those who oppose in-state tuition for such children "do not have a heart." He opposes building a fence on the Mexico-US border.

Ex-Governor Mitt Romney countered that in-state tuition for unauthorized foreigners is a "subsidy" worth as much as $100,000 to a four-year student and acts as a "magnet" for unauthorized foreigners. Representative Michele Bachmann (R-MN) called for a fence "on every mile, on every yard, on every foot" of the US border.

Perry opposes an Arizona-style law that requires law-enforcement officers to check the immigration status of the people they encounter. He says that requiring all US employers to use E-Verify to check the legal status of new hires would not stop illegal migration.

9/11. The major institutional change since the terrorist attacks of September 11, 2001 was the creation of the Department of Homeland Security, which combined 22 federal agencies when it began operations on March 1, 2003 to prevent terrorist attacks. The budget of DHS rose from $20 billion in FY02 to $55 billion in FY10.

About 40 percent of the 230,000 DHS employees in FY10 dealt with immigration. The largest immigration-related DHS agency is US Customs and Border Protection, whose budget more than doubled between FY02 and FY10 to almost $12 billion. CBP had 58,600 employees in FY10, including almost 21,000 Border Patrol agents. Apprehensions of foreigners just inside US borders fell to 463,000 in FY10; 97 percent were on the Mexico-US border.

US Immigration and Customs Enforcement had a FY10 budget of almost $6 billion and over 20,000 employees to enforce immigration laws inside the US, including detaining and removing unauthorized foreigners. Some 387,200 foreigners were removed from the US in FY10, up from 165,000 in FY02.

US Citizenship and Immigration Services had a budget of almost $3 billion in FY10 and about 12,000 employees to process applications for immigration benefits such as visas. Most of the USCIS budget comes from fees levied on those requesting benefits.

Immigration agencies within DHS improved old and created new databases, and linked immigration databases to other government databases. US-VISIT has collected fingerprints and photographs of non-US citizens entering the US by air and sea since 2003. These biometric data are stored in IDENT, which has over 110 million records and is one of the world's largest fingerprint databases. SEVIS has tracked foreign students while they are studying in the US since 2003.

Obama. President Obama criticized the House's "piecemeal" immigration reform and states enacting laws to require employers to participate in E-Verify. In a July 2011 speech to the National Council of La Raza, Obama said that comprehensive immigration reform was both a moral and an "economic imperative" because a quarter of high-tech start-up firms, and a sixth of all new small businesses, are founded by immigrant "job creators."

Democrats re-introduced the POWER Act (Protect Our Workers from Exploitation and Retaliation, S 1195, HR 2169) to expand the U-visa program, which provides immigrant visas to foreigners who cooperate with prosecutors to convict US criminals. The POWER Act, which was included in the 679-page Comprehensive Immigration Reform Act of 2011 introduced by Senator Robert Menendez (D-NJ) in June 2011, would raise the number of U-visas available from 10,000 a year to 30,000 a year.

USCIS issued 10,000 U-visas to victims of US crimes who cooperated with prosecutors in FY11, the second consecutive year that the maximum 10,000 U-visas were issued. An additional 5,000 visas are available to victims of human trafficking, but fewer than that are issued, including 574 in FY10.

President Obama issued a directive in August 2011 establishing an Atrocities Prevention Board to provide early warnings of potential genocide and other politically-driven humanitarian catastrophes. The board will also compile a list of human rights violators who will be barred from entering the US.

Asylum. Between 2005 and 2010, some 265 immigration judges handled at least 265 asylum applications. They granted asylum to almost 47 percent of applicants, but to only 10 percent of applicants not represented by lawyers. Asylum applicants must show they have a well-founded fear of persecution in the country to which they do not want to return because of their race, religion, nationality, political opinion or membership in a particular social group.

Charges against Dominique Strauss-Kahn, who resigned as head of the International Monetary Fund in June 2011 after being charged with a sexual assault of a Guinean immigrant housekeeper at a New York City hotel, were dismissed in August 2011. The Guinean woman who accused Strauss-Kahn repeatedly lied to investigators and was taped discussing with an inmate the benefits of pursuing charges against Strauss-Kahn. The woman arrived in the US in 2002 and made false statements on her application for asylum.

Most legal permanent residents or green-card holders can become naturalized US citizens after five years. After at least seven years of living in the US, including five years of legal residence, foreigners can ask for leniency if they are threatened with deportation.

In two cases to be considered by the US Supreme Court in 2011-12, a Mexican and a Jamaican who did not satisfy the five- and seven-year tests were nonetheless granted leniency by the Ninth Circuit Court of Appeals because of the time their parents spent in the US. The Obama administration is urging the Supreme Court to overturn the Ninth Circuit, arguing that not deporting foreign criminals because of their parents' time in the US would make it harder to keep the US safe.

Congress extended US immigration laws to the Commonwealth of the Northern Mariana Islands over a five-year period beginning in 2008 at the same time that the islands' minimum wage was being raised to mainland US levels (the federal minimum wage has been $7.25 since 2009). Employment in the CNMI fell 13 percent between 2008 and 2009, in part because restrictions on importing Chinese and Filipino workers to sew garments forced sewing factories to recruit and train local workers, slowing output.

Kim Chandler, "Alabama lawmakers getting pressured from business group to change immigration law," Birmingham News, October 2, 2011.