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April 2016, Volume 22, Number 2

DHS: Central Americans

DHS has a $41 billion budget for FY16, and President Obama proposed the same level of funding for DHS in FY17.

The Customs and Border Protection agency has a $13 billion budget for FY16, and is required to maintain 21,370 Border Patrol agents. The Immigration and Customs Enforcement agency has a budget of almost $6 billion, and is required to maintain 34,000 beds for detained foreigners. US Citizenship and Immigration Services has a $3.6 billion budget, mostly funded by fees for services provided.

DHS's CBP apprehended 337,100 foreigners in FY15, down from 486,700 in FY14. ICE removed 235,400 foreigners in FY15, down from 315,900 in FY14; the FY15 removals included 90,000 foreigners apprehended just inside US borders.

The number of inspections of the I-9 forms completed by employers and newly hired workers has been falling. There were a peak 3,100 in FY13, but only 1,300 in FY14 and 1,200 in FY15. ICE won its largest work-site enforcement settlement from Infoys in FY14, $34 million.

South Carolina's HW Group or Walter P. Rawl & Sons agreed to pay $1 million in March 2013 to settle charges that it had "a pattern and practice" of employing 300 to 350 unauthorized workers, including those hired directly and via subcontractors. HW Group may continue to employ H-2A workers, but must use the federal E-Verify system to check the legal status of all new hires. The charges arose from an I-9 audit that began in 2013.

Montana cherry harvester SKZ Harvesting had ICE-imposed penalties of almost $75,000 reduced to $30,000 by an administrative law judge in February 2016. SKZ did not have I-9 forms for 52 of its 55 employees, saying that they were destroyed by mistake. SKZ had been warned previously by ICE, but the ALJ said that its relatively few employees and the concentration of hiring during the harvest were mitigating factors that justified a reduced fine.

Central Americans. ICE in January 2016 began to deport Central Americans who arrived in 2014 and 2015 and did not receive asylum. Central America youth and women with children typically turn themselves in to Border Patrol agents after entering the US and are then released to live with US relatives until their cases are heard. Democrats complained about the ICE removals, and President Obama responded with a plan to have UNHCR help to screen Central Americans at home to determine whether they need asylum in the US.

About 80 percent of the 900 Central American family cases decided in 2015 resulted in an order of deportation, often because migrants failed to appear and explain why they needed asylum in the US. Those ordered removed often do not leave.

During the first three months of FY16, some 17,370 unaccompanied Central American minors and 21,470 people in family units (usually mothers with children) were apprehended at the US border. Many said they were told that, once in the US, they could stay.

The December 2015 budget bill adds 55 immigration judges to the Executive Office for Immigration Review to deal with a backlog of 470,000 pending cases, due in part to the influx of unaccompanied children and families from Central America.

The US will allow 50,000 Cubans who made their way via Ecuador, which did not require visas from Cubans, and Central America to enter the US through Texas. The influx of Cubans highlights the unique treatment of Cubans under the 1966 Cuban Adjustment Act, that is, all Cubans who reach US land may stay. Cubans are eligible for work permits and federal cash assistance for nine months after arrival, plus food stamps and Medicaid. A year later, they receive immigrant visas.

Some Texans in border cities contrasted the treatment of Central Americans and Cubans, noting that Central American mothers and children were detained rather than given welfare benefits.

Visas. DHS released its first report on overstays, finding that 527,000 or 1.2 percent of the 45 million foreign visitors to the US overstayed their visas in FY15. Some of these overstayers subsequently left the US, so the number of 2015 overstayers dropped to 416,000 early in 2016.

The overstay rate is higher for citizens of countries requiring visas, 1.6 percent of 13.2 million, than for those in the visa-waiver program, 0.6 percent of 21 million. Some 38 countries participate in the visa-waiver program, which allows their citizens to enter the US for up to 90 days. Dual citizens of visa-waiver countries who are also citizens of Iran, Iraq, Sudan or Syria, or who have visited these countries since March 2011, will no longer have visa-free entry to the US.

EB-5. The EB-5 program allows up to 10,000 foreigners a year to obtain immigrant visas by investing at least $500,000 in a "targeted employment area" that creates or preserves at least 10 US jobs. Most foreigners invest with private regional centers that pool funds for projects. Many regional centers have been accused of creative mapmaking so that luxury projects qualify as TEAs. Some have defrauded foreigners.

There is general agreement that the EB-5 program is being manipulated by US-based advisors who often obtain low-cost foreign capital for projects that are not in poor areas. For example, the Hudson Yards project in midtown Manhattan has raised over $1 billion from foreigners seeking EB-5 visas to build luxury condos.

In FY15, some 17,700 foreigners applied for EB-5 visas, up from 11,700 in FY14. The backlog of foreigners waiting for EB-5 visas was 22,000 at the end of 2015. Each approved foreign investor normally receives two or three visas for family members. About 80 percent of EB-5 visas go to Chinese. Some 40,000 foreigners have petitioned for immigrant visas on the basis of $500,000 investments in US projects.

U-Visas. The US makes 10,000 U-visas a year available to foreign victims of US crimes when the foreigner cooperates with police to prosecute the criminal. As advocates encourage more police departments and prosecutors to recommend cooperating victims for U-visas, the backlog has grown to 64,000. Critics of the U-visa program say it is a back door to immigrant status, while advocates say the backlog demonstrates the need to make more U-visas available.

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