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Immigration Bill S. 1394 [2]
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Office of the Deputy Attorney General
Mashington, D.C. 20530
February 14, 1996
Honorable Orrin G. Hatch
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Chairman Hatch:
This letter presents the views of the Administration
concerning S. 1394, the "Immigration Reform Act of 1995" as
reported out of the Subcommittee on Immigration (Subcommittee) on
November 29, 1995.
While the Administration strongly supports reform of the
current immigration law that affects both illegal and legal
is
immigration, and S. 1394 contains numerous responsible and
thoughtful reforms, S. 1394 raises considerable concerns in
specific areas that we hope the Committee will examine thoroughly
before reporting the bill to the Senate floor. In particular,
employment eligibility verification systems should contain
necessary privacy protections and be piloted before any
nationwide implementation. We urge the Committee to adopt our
proposal to pilot programs for 3 years and then request
Congressional authorization to implement only those pilot
projects that work. Any increases in penalties for and
enforcement of employer sanctions should be similarly increased
for enforcement of laws against immigration related employment
discrimination. The intentional discrimination standard in the
document abuse provision of S. 1394 will severely undermine anti-
discrimination enforcement. Labor and immigration law
enforcement should be increased and coordinated. S. 1394 should
adopt our proposal to hire 202 Department of Labor (DOL) Wage and
Hour Staff to investigate and prosecute labor standards and
employer sanctions violators. The birth and death registry
provision presents myriad constitutional, operational, and
programmatic concerns and would impose a tremendous unfunded
mandate on states and localities as well as a major burden on
private individuals, such as having their fingerprints and Social
Security numbers added to their birth certificates by age 16.
Expedited exclusion procedures should be established in
extraordinary situations the Attorney General deems appropriate.
Imposition of a 30 day time limit in which to apply for asylum
would create needless protracted litigation on the issue of when
an alien entered the United States (U.S.) rather than on the
merits of the asylum claim. This would be detrimental to
immigration law enforcement and humanitarian protections for true
asylees.
Employer sponsored visas should be set at a level, 100,000
visas per year, to address both the needs of American businesses
and workers. Family-sponsored visas for adult children of U.S.
citizens and unlimited visas for mothers and fathers of U.S.
citizens must be maintained to protect our cherished principle of
family reunification. Similarly, we support and want to reach
agreement with Congress on an appropriate and equitable
grandfathering process for persons in the fourth preference
backlog that is consistent with our overall framework, priorities
and principles.
The deeming provision for benefit eligibility should not
create an unprecedented, unconstitutional second class
citizenship by extending beyond naturalization. The legislation
should clarify that it does not call into question the full
participation of any child in public elementary and secondary
education, including pre-school and school lunch programs. We
oppose the health and long term care insurance mandate imposed
upon the mothers and fathers of U.S. citizens and disabled sons
and daughters of U.S. citizens and lawful permanent residents.
As currently drafted, the legislation requires purchase of
coverage that is simply not available.
Repeal of the Cuban Adjustment Act would detract from the
Administration's goal of returning democracy to Cuba and
regularizing the flow of immigration from Cuba. In addition,
restricting the Attorney General's parole authority will
jeopardize the Attorney General's ability to quickly and
appropriately respond to compelling immigration emergencies.
Finally, we urge the Committee to ensure the bill's consistency
with our international treaty obligations.
Many of the provisions in S. 1394 advance the
Administration's strategy to control illegal immigration. This
strategy calls for regaining control of our borders; removing the
job magnet through worksite enforcement; aggressively pursuing
the removal of criminal aliens and other illegal aliens; and
securing from Congress the resources to assist states with the
costs of illegal immigration. Many of the provisions of S. 1394
are identical or similar to provisions in the Administration's
bill, S. 754, the "Immigration Enforcement Improvements Act of
1995."
The Administration endorses a framework of legal immigration
reform that respects our immigration tradition while achieving a
moderate reduction in overall admission numbers to promote
economic opportunities for all Americans. The Administration
2
seeks legal immigration reform that promotes family
reunification, protects U.S. workers from unfair competition
while providing employers with appropriate access to
international labor markets to promote our global
competitiveness, and promotes naturalization to encourage full
participation in the national community.
This Administration appreciates the continued opportunity to
work with you and other members of the Committee. Our positions
on the individual provisions of S. 1394 are outlined in the
following section-by-section discussion.
Title I--Immigrant Control
Part --Additional Enforcement Personnel
The Administration has already demonstrated that our borders
can be controlled when there is a commitment to do SO by the
President and Congress. With an unprecedented infusion of
resources since 1993, we have implemented a multi-year border
control strategy of prevention through deterrence. We have
carefully crafted long range strategic plans tailored to the
unique geographic and demographic characteristics of each border
area to restore integrity to the border. The results of our
flexible approach are reflected in the successful implementation
of Operations "Hold-The-Line" in El Paso, "Gatekeeper" in San
Diego, and "Safeguard" in Arizona. We have increased the number
of Border Patrol agents by 40% since 1993 -- higher levels of
staffing than ever before. Those agents are also backed up by
the highest level of support than ever before. For the first
time in over a decade we are backfilling positions previously
left vacant by attrition. We are committed to achieving a
strength of more than 5,600 Border Patrol agents by the end of
Fiscal Year 1996 and more than 7,000 agents by the end of Fiscal
Year 1998. Border Patrol personnel are now equipped with new and
sophisticated technology and basic support allowing them to work
more effectively. We appreciate the efforts by Congress to
authorize and appropriate more funds for Border Patrol agents and
equipment. We look forward to working together to further
improve border management and control.
Section 101 mandates the Attorney General in Fiscal Years
1996 through 2000 to increase the number of Border Patrol agents
by no fewer than 700 each year and authorizes the Attorney
General to increase by not more than 300 the number of Border
Patrol support personnel each Fiscal Year from 1996 through 2000.
For Fiscal Year 1996, the Administration will start the
training of 1480 new Border Patrol agents and complete the
training of and deploy 700 new agents. We note with approval the
similarity between S. 1394 and S. 754. However, we urge the
Committee to incorporate the Administration's language which
3
would require that the hiring of Border Patrol agents be to the
maximum extent possible consistent with standards of
professionalism and training and to strike the limitation on the
number of support personnel who can be hired.
Section 102 authorizes funding for 300 new positions for
each of Fiscal Years 1996 through 1998 for investigators and
support personnel to investigate alien smuggling and enforce
employer sanctions.
We support an increase for personnel to investigate alien
smuggling and enforce employer sanctions. However, we are
concerned that this section does not provide the level of
enforcement resources sought by the President. The President's
Fiscal Year 1996 budget contained such an increase and also
requested 202 new DOL Wage and Hour and other personnel to
enhance enforcement of employer sanctions and labor standards
laws. In order to underscore Congress' commitment to this
important law enforcement function, we urge that section 102 be
amended to specifically authorize this increase in DOL personnel.
This section would also limit administrative expenditures
for the payment of overtime to an employee for any amount over
$25,000. The restrictions on overtime expenditures currently
apply because they are included in the Fiscal Year 1995 Commerce,
Justice, State Appropriations Act. The President's Fiscal Year
1996 budget request also includes these restrictions.
Section 103 mandates the Attorney General and Secretary of
the Treasury to increase the number of land border inspectors by
approximately equal numbers in Fiscal Years 1996 and 1997 to a
level that will provide full staffing to end undue delay and
facilitate inspections.
We strongly support increased service and inspections at
land ports of entry. S. 754 includes a Border Services User Fee
for this purpose. We urge the Committee to adopt the language
from the Administration provision both here and in section 211 of
S. 1394.
Part 2--Eligibility to Work and to Receive Public Assistance
Jobs are the greatest magnet for illegal immigration. Thus,
a comprehensive effort to deter illegal immigration, particularly
visa overstaying, must make worksite enforcement a top priority.
The President's Fiscal Year 1996 budget requested 202 new DOL
Wage and Hour and other personnel to enhance enforcement of laws
prohibiting employment of unauthorized aliens and assuring
minimum labor standards, including sweatshop enforcement.
Enforcement efforts will focus on selected areas of high illegal
immigration. Already the Atlanta and Dallas District Offices of
the Immigration and Naturalization Service (INS) have
4
successfully conducted Operation SouthPAW (Protecting America's
Workers) and Operation Jobs, unprecedented interior enforcement
initiatives which are designed to place authorized U.S. workers
in job vacancies created by the arrest of unauthorized workers
during worksite enforcement surveys. The Administration is
deeply concerned by the provisions in this bill that will weaken
employer sanctions and anti-discrimination enforcement.
With regard to Federal benefits, under current law the
status of aliens applying for major federal benefits is generally
verified through direct access to INS via the Systematic Alien
Verification for Entitlement program (SAVE), enacted by section
121 of the Immigration Reform and Control Act of 1986 (IRCA).
The SAVE process seeks to ensure that each applicant born outside
the U.S. is properly identified as a U.S. citizen, or as an
eligible immigrant and to prevent unauthorized immigrants from
receiving benefits for which they are ineligible. The SAVE
process of verifying eligibility has worked well. Recently, SAVE
was awarded the Federal Technology Leadership Award for 1995.
Nevertheless, the Administration is conducting a review of the
SAVE system to determine if improvements or changes are
appropriate. We believe that the creation of a new system at
this time would be premature, duplicative and unnecessary and
would also siphon resources away from other enforcement
priorities.
Section 111 (a) requires the Attorney General, together with
the Commissioner of Social Security, to establish within eight
years a system to verify eligibility for employment and
eligibility for benefits provided or funded by any Federal,
State, or local government agency, as described in section 201 of
this Act.
While we agree that verification systems are critical to
immigration enforcement, we strongly oppose the requirement that
permanent national verification systems be established within
eight years. Under the Administration bill, pilot programs will
be tested and evaluated for three years so that the technical
feasibility, cost effectiveness, resistance to fraud, and impact
on employers and employees can be assessed and determined. S.
754 authorizes employment verification pilot projects, which will
improve the INS databases; expand the Social Security
Administration (SSA) databases; simulate links of INS and SSA
databases; expand the Verification Information System, formerly
called the Telephone Verification System, for non-citizens to
1,000 employers; and test a new two-step process for citizens and
non-citizens alike to verify employment authorization using INS
and SSA data. The pilots will be built to guard against document
fraud, discrimination, and violations of privacy. After three
years, the pilots will be evaluated on the bases of deterrence of
illegal immigration, discrimination, privacy, technical
feasibility, cost effectiveness, impact on employers, and
5
susceptibility to fraud. We will request permanent authority
from Congress only for methods that work, are cost-effective, and
prove themselves capable of protecting citizens' and legal
workers' rights. While we are pleased with the initial success
of our pilot programs, careful review and evaluation are critical
before mandated nationwide implementation both to improve their
effectiveness and to prepare the nation's employers and
employees.
As stated in our introduction to Part 2, under current law,
the status of aliens applying for benefits is generally verified
through direct access to INS via the SAVE program. The SAVE
program attempts to ensure that each applicant born outside of
the U.S. is properly identified as a U.S. citizen, or as an
eligible immigrant and prevents unauthorized immigrants from
receiving benefits for which they are ineligible. Since our
review of the SAVE program is currently in process, we have not
included the benefit programs in our proposed pilot projects.
We also urge the Committee to clarify that the phrase
"eligibility for benefits provided or funded by any Federal,
State, or local government agency, as described in section 201 of
this Act" is limited to programs that provide benefits directly
to individuals, and not programs such as Federal assistance
provided to schools to assist disadvantaged children.
Under section 111 (b), the system must be capable of reliably
determining whether the person is eligible and whether the
individual whose eligibility is being verified is claiming the
identity of another person. It requires any document used by the
system to be tamper-proof and prohibits its use as a national
identification card except to verify eligibility for employment
or benefits, to enforce the fraud provisions of Title 18, U.S.C.,
if the document was issued by the INS, or, if the document was
designed for another purpose (e.g., driver license, certificate
of birth, Social Security card), as required under law for that
other purpose.
We agree that no legislative language should be included
that could be construed to authorize, directly or indirectly, the
establishment, issuance or use of national identification cards.
Section 111 (b) (3) provides that the system may not be used
other than to enforce the INA, the fraud provisions of Title 18,
U.S.C., local laws relating to eligibility for certain
Government-funded benefits, or laws relating to any document used
by the system that was designed for another purpose. We support
this provision.
Section 111 (b) (4) provides that the privacy and security of
personal information and identifiers obtained for and utilized in
the system must be protected in accordance with industry
6
standards for privacy and security of confidential information.
No personal information obtained from the system may be made
available to any person except to the extent necessary for the
lawful operation of the system.
Protecting citizens' and other authorized workers' privacy
rights is fundamental. The bill's reliance upon industry
standards is vague and is not adequate to protect the important
personal privacy and security interests of employment authorized
individuals. The Administration proposal requires that an
employer participating in a pilot program have in place such
procedures as the Attorney General shall require to safeguard all
personal information from unauthorized disclosure and condition
redisclosure of such information to any person or entity upon its
agreement also to safeguard such information. The Administration
proposal also (1) requires notice to all individuals of the right
to request an agency to correct or amend the individual's record
and of the steps to make such a request; (2) applies appropriate
remedies and civil fines for unauthorized disclosure; and (3)
provides that no adverse employment action (e.g. firing,
demotion, change of title or duties) occur while the employee is
challenging the accuracy of the eligibility information during
the secondary verification or thereafter, until the situation has
been corrected or verified. We strongly urge the inclusion of
these privacy safeguards.
Section 111 (b) (5) provides that a verification of
eligibility may not be withheld or revoked for any reason other
than the person's eligibility. We support this provision.
Section 111 (c) relieves an employer from liability under
section 274A of the INA if (1) the alien appeared throughout the
term of employment to be prima facie eligible for employment, (2)
the employer followed all procedures required in this new
verification system, and (3) the alien was verified under such
system as eligible for employment, or a secondary verification
procedure was conducted with respect to the alien and the
employer discharged the alien promptly after receiving notice
that the secondary verification procedure failed to verify the
eligibility of the employee.
We do not support this provision because it is unnecessary
and potentially confusing. An employer who complies with
employee verification requirements is not liable for employer
sanctions penalties under current law and regulations. We are
concerned that this provision could have an unintended effect of
increasing employer challenges to 274A enforcement efforts.
Furthermore, the Administration's pilot program called the
Verification Information System gives an employee an additional
opportunity after a failed secondary verification to verify
eligibility for employment.
7
Section 112 directs the Attorney General, together with the
Commissioner of Social Security, to conduct 3-year demonstration
projects in five States to verify eligibility for employment and
for benefits provided or funded by any Federal, State, or local
government agency, as described in section 201 of this Act.
S. 754 provides for pilot projects to test various
employment eligibility verification methods as described in the
previous section. As described in our introduction to Part 2, we
believe demonstration pilots are unnecessary for verification of
eligibility for benefits, since our current system, SAVE, works
well for noncitizens. We also believe that demonstration pilots
must be evaluated before the creation of permanent new
verification systems. Simultaneous implementation of both pilot
projects and a permanent national verification system is a
burdensome, unnecessary, and costly duplication of effort.
Section 113 provides for an automated system with on-line
access for verifying employment and public assistance eligibility
to be administered by a newly established Office of Employment
and Public Assistance Eligibility Verification within the
Department of Justice (DOJ).
We support enhancing the various immigration database
systems and are currently doing so. S. 754 authorizes employment
verification pilot projects that will expand the Social Security
Administration (SSA) databases and simulate links of INS and SSA
databases. However, we do not support section 113 because it
builds the specifics of an automated verification database into
statute when the technical feasibility, cost effectiveness,
resistance to fraud, and impact on employers and employees have
not been assessed and determined through pilot projects. We are
concerned that the requirement that information be placed into
the system within 10 business days will create an undue burden on
INS resources. We also must reiterate our concerns that, as with
section 111 (b), privacy is not adequately protected. For
example, a realtor or lender could request and obtain employment
eligibility information on a customer without running afoul of
section 1113 (b) limitation on data use. Moreover, such
information could be used by the realtor or lender to
discriminate against U.S. citizens and legal aliens who look or
sound "foreign."
As described. in sections 111 (a) and 112, the Administration
supports testing various verification approaches over the next
three years. We will request permanent authority from Congress
for pilot projects that work based upon a thorough evaluation.
Creation of a new Office of Employment and Public Assistance
Eligibility Verification within the DOJ is duplicative of ongoing
programs within the INS and other federal agencies. We believe
that the effective way to administer this program is to retain
the current responsibilities of gathering and verifying data
8
within the contributing agencies, INS and the SSA.
Section 114 authorizes the Attorney General to require an
individual to provide his or her Social Security account number
for purposes of complying with this section. S. 754 has a
similar provision, and we support this provision.
This section also limits the documents which establish both
employment authorization and identity to the U.S. passport and
resident alien card containing appropriate security features. It
limits the documents that establish employment authorization to
the Social Security card and Employment Authorization Document.
The section also gives the Attorney General the authority to
restrict the use of certain documents establishing employment
authorization or identity, if she finds the document is being
used fraudulently to an unacceptable degree. This section shall
apply to hiring beginning no more than 180 days from the date of
enactment of the Act.
S. 754 has a similar provision, and we support this
section's limitation on the number of documents. Although S. 754
contained the same effective date, on further consideration of
technological capabilities we would like to work with the
Committee on an appropriate timeframe for implementation.
Sec. 115 provides that an employer's request for more or
different documents to verify an employee's employment
eligibility or an employer's refusal to honor documents that on
their face reasonably appear to be genuine shall be treated as an
unfair immigration-related employment practice only if made for
the purpose or with the intent of discriminating against the
employee because of his or her national origin or citizenship
status.
We strongly oppose this section because of its potentially
harmful and discriminatory impact on U.S. citizens, legal
permanent residents, and all work-authorized persons who appear
or sound "foreign". Under this section, all work-authorized
persons--including citizens and legal permanent residents--who
possess valid acceptable documentation of work eligibility under
the law, but who do not possess the specific documents required
by a certain employer, could lose a job and have no legal remedy.
The DOJ Office of Special Counsel for Unfair Immigration Related
Employment Practices (OSC) currently litigates on behalf of such
employees. In Texas, a publishing company refused to hire a
native born U.S. citizen of Hispanic descent because she
presented a state identification card and a Social Security card
instead of a birth certificate. In Virginia, a janitorial
service firm fired a naturalized U.S. citizen of Guatemalan
descent after demanding to see his "green card" and U.S. passport
and rejecting his driver's license, Social Security card and
voter registration card. In Colorado, a major meatpacking
9
company discharged seven work authorized employees when they
could not produce INS-issued work authorization extension
documents although all seven had other legally sufficient
evidence of their continued employment eligibility. This section
would provide no remedy for such individuals who are unfairly
denied jobs.
Under section 114, it will be difficult, if not impossible,
for the OSC to demonstrate that the employer's conduct regarding
documentation is tied to the national origin or citizenship
status of the individual. Under section 115, all work authorized
persons, citizens and non-citizens alike, who possess valid
acceptable documentation under the law, but who do not possess
the exact documents required by a specific employer, could lose
an opportunity for employment and livelihood on that basis alone
and have no legal remedy. If the driving force behind an
employer's conduct is fear of INS sanctions, very few cases will
be actionable, since it will be extremely difficult, if not
impossible, to meet the proposed intent requirement. The
employer will claim to be avoiding sanctions rather than
discriminating intentionally. Clearly, the brunt of this change
will fall on those who look or sound "foreign" legal
immigrants and minority U.S. citizens -- because employers will
be most critical of documentation produced by those persons most
likely to lead to sanctions. Employers could pretextually
support their alleged non-discriminatory position by highlighting
the percentage of minority and non-U.S. citizens in their
workforce to show that they have no reason to treat minorities or
non-U.S. citizens more harshly in the employment verification
process, but the effect on those authorized workers who do not
have the specific documents requested by the employer will be the
same: loss of employment and livelihood.
Congress knew when it enacted IRCA's anti-discrimination
provision that fear of sanctions could result in employer
discrimination against citizens and work-authorized aliens,
especially those who "look or sound" foreign. When IRCA's
antidiscrimination provision became law in 1986, Congress did not
include an intent element in the prohibitions against
citizenship-status or national origin discrimination. In 1990,
when the document abuse provision was added to the law, the
intent element was also absent. Thus, the protection afforded by
the antidiscrimination provision was designed to protect workers
not only from invidious discrimination, but also from employment
discrimination resulting from employers' negligence or ignorance.
The Administration has worked closely and cooperatively with
employer associations to educate them about their
responsibilities under the law. Employer education efforts,
including directly funding efforts by employer associations
themselves and reducing the number of documents an employer must
accept, have reduced the burdens on employers. By contrast,
10
section 115 would allow discrimination against U.S. citizens and
authorized workers to go unchecked. We strongly urge the
Committee to delete this section.
In addition, we urge the Committee to clarify the authority
of the OSC to litigate pattern and practice cases and to grant
the OSC the authority to investigate and prosecute discrimination
charges involving the terms and conditions of employment.
Sec. 116 provides that all copies of birth certificates
distributed by states or local agencies be issued in a standard
form whose requirements are to be set forth by regulations issued
by the Department of Health and Human Services (HHS) after
consultation with other agencies. State and local government
agencies would be prohibited from accepting for evidentiary
purposes a birth certificate issued in any other form, or issued
by any entity other than a state or local government agency. No
state or local government agency may issue an official copy of a
birth certificate unless it has ascertained from the Social
Security Administration (SSA) whether the person to whom the
requested birth certificate pertains is deceased. No state or
local government agency may accept a birth certificate for any
evidentiary purpose, unless it has verified the certificate with
the issuing agency or a new national birth registry that the SSA
may establish, and unless it has verified with the SSA that the
certificate does not pertain to a deceased person. A copy of any
death certificate issued in the U.S. must be sent to the SSA
(presumably by the issuing entity).
The Administration supports the objective of addressing
breeder document fraud. However, this section presents myriad
constitutional, operational, and programmatic concerns, on which
we want to work with the Committee. First, it is not clear what
enumerated power gives the federal government the authority to
regulate birth certificates in this way. The Supreme Court has
interpreted the federal government's authority over immigration
quite broadly, but the relevant cases involved statutes that
explicitly dealt with immigrants. See Fiallo V. Bell, 430 U.S.
787 (1977) ; Mathews V. Diaz, 426 U.S. 67 (1976). Section 116,
though part of an immigration bill, does not by its terms involve
immigration or immigrants; rather, it applies to all birth
certificates. Indeed, by its silence with regard to foreign
birth certificates, it appears to apply only to U.S. citizens
and to make a foreign born person's birth certificate
unacceptable for identification. In light of the scope of
section 116 and the absence of relevant cases, we are uncertain
whether the Court would conclude that the bill is within the
federal government's immigration authority. In addition, insofar
as section 116 imposes non-ministerial duties on the states or
compels policy decisions, it could be challenged as violative of
the principles underlying the Tenth Amendment, under New York V.
United States, 112 S. Ct. 2408 (1992).
11
We strongly oppose requiring Social Security Numbers (SSNs)
and fingerprints on all birth certificates. Given the wide
distribution and use planned for them, placing SSNs on birth
certificates could actually facilitate fraud. Under this
provision, every person's name, along with other identifying
information, including a fingerprint, would be joined on the
birth certificate with a verified SSN. Placing the SSN together
with SO much other personally identifying information would make
it much easier for criminals who obtain copies of these birth
certificates to commit fraud by assuming an individual's
identity. The documents will be used extensively and subject to
loss or theft. Moreover, the provision does not require the
States to maintain the confidentiality of the SSN information
that would be placed in their vital statistics records. Without
such safeguards, the effect of this provision could be to make
the SSNs and fingerprints of every individual born in the United
States a matter of public record and, therefore, available to the
public at large, including to individuals who intend to use the
information to commit fraud. No state now makes this information
generally available to members of the public simply upon request.
In addition, requiring SSNs and fingerprints on all birth
certificates would make the birth certificate a de facto national
identification document, which is contrary to the intent of S.
1394 and S. 754.
Although SSA is not an official custodian of death data, SSA
does receive death data from States and other sources. However,
SSA is missing death data for an estimated 50 million persons to
whom SSNs were issued. Since most of these represent deaths
occurring before SSA began receiving death data from the States,
the States would have to furnish such data. Furthermore, because
many deaths involve children who were never issued SSNs, SSA
could not maintain death records for these individuals without
first assigning them SSNs. Moreover, current State death data
are only 94 percent accurate. For the remaining six percent of
cases, we are troubled by the anomalous and quite inadvertent
predicament in which section 116 might place a live U.S. citizen-
-denial of a birth certificate because of the existence of a
discrepancy in a record or a missing record indicating the person
is dead.
Section 116 would impose a tremendous unfunded mandate with
prohibitive costs on States and localities, as well as subject
private individuals to burdensome requirements, such as having
their fingerprints added to their birth certificates by age 16.
This section also would impose very substantial unbudgeted
workload requirements on the SSA and the INS. SSA does not have
the existing technological infrastructure or FTE's to accept the
responsibilities required in section 116 (a) (4) and (5). Since
SSA is not authorized to use its trust funds for non-program
purposes such as those envisioned by section 116, a specific
appropriation of new funds would be required. The requirement
12
that INS verify the authenticity of each birth certificate would
cause an excessive workload burden on INS offices. The INS
inspects over 500 million persons each year. We cannot verify
every birth certificate presented as evidence of citizenship.
We ask that the following issues be clarified: (1) whether
the requirements of this provision would be prospective only or
retroactive; and (2) whether persons born abroad would have to
obtain new birth certificates. Sec. 116 (a) (3) and 116 (b) (4)
should be amended to replace "Passport Office" with "Department,
of State". Sec. 116 (a) (3) also should be modified to read at the
end "unless it is a foreign birth certificate for a person who is
claiming acquisition of citizenship through birth abroad.' Sec.
116 (a) (5) should be modified to read "A copy of every death
certificate issued in the United States and Report of Death
Abroad issued by the Department of State shall be sent to the
Social Security Administration." In addition, the term "birth
certificate" should be defined as the certified copy of the birth
certificate which is issued to individuals by state and local
agencies for identification and other purposes.
Sec. 117 amends section 274 (e) (4) (A) of the INA to increase
the civil penalties for employer sanctions for first violations
from the current range of $250 to $2,000 to a range of $1,000 to
$3,000. The subsection also increases penalties for second 5'
violations from the current range of $2,000 to $5,000 to a range
of $3,000 to $8,000. The penalties for subsequent violations are
increased from a range of $3,000 to $10,000 to a range of $8,000
to $25,000.
This provision is identical to the Administration's
proposal, and we support it. However, we believe that the
penalties for immigration related discrimination, as covered by
section 274B (g) of the INA, should be similarly increased.
Members of this Committee made an important decision in the
Immigration Act of 1990 to have the same penalties for both the
anti-discrimination provisions and employer sanctions. Symmetry
remains critical in these closely associated areas. Imbalance
has the potential to create a financial incentive for employers
to violate the lesser penalized statute of anti-discrimination
law to avoid the higher penalties of the employer sanctions
statute. This section will also eliminate the perception that
there is an order of preference in enforcement efforts.
To further harmonize the sanctions and the anti-
discrimination provisions of the INA, we urge the Committee to
grant express authority to the Office of Special Counsel to
pursue pattern or practice violations based on independent
investigations, and that penalties equal to those set forth in
the pattern or practice section of the employer sanctions
provision be added for engaging in a pattern or practice of the
antidiscrimination provision.
13
Sec. 117 (b) increases the penalties for employer sanctions
paperwork violations from the current range of $100 to $1,000 to
a range of $200 to $2,500.
We support this provision. S. 754 increases the penalties
to a range of $200 to $5,000. However, for the reasons described
above, we believe that the penalties for immigration-related
discrimination, as covered by section 274B (g) of the INA, should
be similarly increased.
Sec. 117 (c) increases the criminal penalty for pattern and
practice violations of employer sanctions to a felony offense,
increasing the applicable fines from $3,000 to $9,000 and the
criminal sentence which may be imposed from not more than six
months to not more than two years.
We support this provision. S. 754 has a similar provision
which raises the applicable fines to $7,000 and the maximum
criminal sentence to two years.
Sec. 117 (d) authorizes an administrative law judge to
increase the civil penalties provided under employer sanctions to
an amount up to two times the normal penalties if labor standards
violations are present.
This provision is identical to the Administration's
proposal, and we support it. However, we believe that this
authority should also be extended to cover immigration-related
discrimination, as covered by section 274B (g) of the INA.
Sec. 118 credits any employer sanctions penalties received
in excess of $5,000,000 to the INS Salaries and Expenses
appropriations account that funds activities associated with
employer sanctions enforcement.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 119 authorizes the Attorney General to hire for Fiscal
Years 1996 and 1997 such additional Assistant U.S. Attorneys as
may be necessary for INA prosecutions.
The President's Fiscal Year 1996 budget request includes
resources to hire new Assistant U.S. Attorneys and support
personnel to enhance immigration law enforcement. We support
this provision.
Sec. 120 amends the INA to clarify that immigration officers
may issue subpoenas for investigations of employer sanctions
offenses under section 274A. This section also authorizes the
Secretary of Labor to issue subpoenas for investigations relating
to the enforcement of any immigration program. It makes the
14
authority contained in sections 9 and 10 of the Federal Trade
Commission Act available to the Secretary of Labor. The Federal
Trade Commission Act provisions allow access to documents and
files of corporations, including the authority to call witnesses
and require production of documents.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 120A creates an Office for the Enforcement of Employer
Sanctions within the INS. The functions of this Office are to
investigate and prosecute employer sanctions violations and to
educate employers on the requirements of the law to prevent
employment discrimination. This section authorizes $100,000,000
to be appropriated to the Attorney General to carry out the
functions of the Office.
Creation of a new Office for the Enforcement of Employer
Sanctions is duplicative of ongoing programs within the INS and
the DOJ OSC. The INS and the OSC are effectively carrying out
their responsibilities to investigate and prosecute employer
sanctions violations, employer discrimination violations, and to
educate both employers about their responsibilities and employees
concerning their rights under the Act. Thus, we urge the
Committee to strike this section altogether as unnecessary and
duplicative. It is critical that the protection of employees
from employment discrimination remain within the jurisdiction of
the Civil Rights Division which has tremendous expertise and
experience in this area. Resources, not reorganization, will
assist these important law enforcement and education efforts.
Without resources, reorganization is ineffective. With
resources, reorganization is unnecessary.
As we stated in sections 115 and 117, Congress recognized
that a symmetry was necessary between penalizing the hiring of
unauthorized workers and protecting employees from employment
discrimination. An emphasis on penalizing unauthorized workers
without a parallel emphasis on protecting employees from
discrimination could create an unacceptable imbalance. In
protecting employees from discrimination, educating employees
about their rights under the law is just as important as
educating employers about their responsibilities under the law.
This section fails to mention employee education. In 1990, the
Congress authorized the OSC to educate both employers and
employees about the law's antidiscrimination provisions. We urge
the Committee to create a balance between efforts to educate
employers and efforts to educate employees. We support
appropriation of additional funds to support Administration
efforts to fight illegal employment and discrimination.
PART 3--ALIEN SMUGGLING; DOCUMENT FRAUD
15
The Administration is aggressively investigating,
apprehending, and prosecuting alien smugglers. The INS, Federal
Bureau of Investigation, Department of State, and Coast Guard
have been sharing and developing information on numerous
smuggling endeavors. As a result of these efforts over 200
significant alien smuggling investigations were initiated in
Fiscal Year 1994. Similar efforts are being conducted to combat
document fraud. INS is adding new staffing positions to
investigate and prosecute an increased number of fraudulent
document vendors. This includes targeting major suppliers of
fraudulent documents and employers who knowingly accept such
documents as proof of employment authorization. In general Part
3 appropriately cracks down on alien smugglers and individuals
involved in document fraud. We are pleased the Committee has
adopted many provisions from the Administration's bill.
Sec. 121 grants wiretap authority for investigations of
alien smuggling, identification document fraud, citizenship and
naturalization procurement and document fraud, and passport and
visa fraud.
This provision is similar to the Administration's proposal,
and we support it.
Sec. 122 amends 18 U.S.C. 1961 (1) to include alien
smuggling, identification document fraud, naturalization and
citizenship procurement and document fraud, and visa and passport
fraud offenses committed for personal financial gain as predicate
offenses for racketeering charges.
S. 754 contains a similar provision, but it does not include
identification document fraud, naturalization and citizenship
procurement and document fraud, and visa and passport fraud
offenses (18 U.S.C. §§ 1028, 1425, 1426, 1427, 1541, 1542, 1543,
1544, 1546). We urge the Committee to adopt the S. 754
provision. We would prefer that the Committee directly increase
the penalties for violating these statutes rather than adding
them as RICO predicates. Direct increases in penalties would be
the more effective way to strengthen the punishment for these
crimes.
Sec. 123 adds conspiracy and aiding to alien smuggling
offenses. This would subject conspirators to increased penalties
for alien smuggling offenses rather than the penalty under the
general conspiracy statute. This section provides that a person
who smuggles aliens shall be fined or imprisoned for each alien
to whom a violation occurs and not for each transaction
constituting a violation, regardless of the number of aliens
involved. This section also increases the penalties for alien
smuggling offenses to not less than 3 years or more than 10 years
for a first offense, to not less than 5 years or more than 10
years for a second offense, and to not less than 10 years or more
16
than 15 years for subsequent offenses.
S. 754 also adds conspiracy and aiding to alien smuggling
offenses. We support the requirement that an alien smuggler be
fined or imprisoned for each alien rather than for each
transaction. However, while we do not object to increasing the
maximum penalties for alien smuggling offenses, we do not believe
that mandatory minimums are appropriate in this context.
Providing for mandatory minimum penalties in this context would
produce anomalous results compared to penalties for other
offenses of comparable severity. The penalty for each alien
rather than each transaction is a vastly more potent weapon
against alien smugglers.
Sec. 123 (a) (5) makes it a criminal offense to hire an alien
with knowledge that the alien is not authorized to work and that
the alien was smuggled into the U.S. The penalty for violating
this section is a fine and imprisonment for not less than 2 years
or more than 5 years.
S. 754 also criminalizes the employment of an alien knowing
that such alien is not authorized to work and that the alien was
smuggled into the U.S. However, S. 754 provides for a term of
imprisonment for not more than 5 years. The Administration does
not believe that mandatory minimums are appropriate in this 5'
context. Such mandatory minimums would produce anomalous results
in this context.
Sec. 123 (b) creates a new offense for smuggling aliens with
the intent or with reason to believe that the alien brought into
the U.S. will commit an offense against the U.S. or any State
punishable by imprisonment for more than one year.
This provision is substantially similar to the
Administration's proposal, and we support it.
Sec. 123 (c) directs the Sentencing Commission to promulgate
or amend guidelines to provide that an offender convicted of
smuggling, transporting, or harboring an unlawful alien under
dangerous or inhumane conditions shall be assigned a base offense
level of at least 22 for a first offense, at least 26 for an
offender with one prior felony conviction, at least 32 for an
offender with two prior felony convictions, an enhancement of
between 2 and 6 levels in the case of bodily injury to such alien
in proportion to the severity of the injury inflicted, and a base
offense level of at least 41 in the case of the death of an
alien.
Although the direction to the Sentencing Commission
generally would provide for higher sentences than what the DOJ
had proposed to the Sentencing Commission during this amendment
cycle, we do not object to it.
17
Sec. 124 provides that the videotaped deposition of a
witness to a violation of section 274 (a) of the INA who has been
deported from the U.S. may be admitted into evidence in an action
brought for that violation if the witness was available for cross
examination.
We support this provision.
Sec. 125 provides that any property, real or personal, which
facilitates or is intended to facilitate, or which has been used
in or is intended to be used in the commission of a violation of,
or which constitutes or is derived from or traceable to the
proceeds obtained directly or indirectly from a commission of a
violation of subsection 274 (a) or section 274A (a) (1) or
274A (a) (2) of this Act, or of sections 1028, 1425, 1426, 1427,
1541, 1542, 1543, 1544, 1545, or 1546 of title 18, U.S.C., shall
be subject to seizure and forfeiture. No property used by any
person as a common carrier in the transaction of business shall
be forfeited unless the owner or other person in charge of such
property was a consenting party or privy to the illegal act.
Also, no property shall be forfeited by reason of any act or
omission established by the owner to have been committed or
omitted by any person other than the owner while the property was
unlawfully in the possession of a person other than the owner in
violation of federal or state criminal laws. No property may be
forfeited to the extent of an interest of any owner, by reason of
any act or omission established by the owner to have been
committed without the owner's knowledge or consent, unless the
act or omission was committed by an employee or agent of the
owner, and facilitated or was intended to facilitate, or was used
in or intended to be used in, the commission of a violation of
subsection (a) or section 274A (a) (1) or 274A (a) (2) of this Act,
or of sections 1028, 1425, 1426, 1427, 1541, 1542, 1543, 1544, or
1546 of title 18, U.S.C., which was committed by the owner or
which was intended to further the business interests of the
owner, or to confer any other benefit upon the owner.
It amends section 274 (b) (2) by striking "conveyance" and
inserting "property" and by striking "is being used in" and
inserting "is being used in, is facilitating, has facilitated, or
was intended to facilitate." It provides that before the seizure
of any real property, the Attorney General shall provide notice
and an opportunity to be heard to the owner of the property.
This section is similar to the Administration's proposal.
However, section 125's proposed new paragraph (E) to section
1324 (b) (4) is unnecessary. The statute incorporated by reference
therein (19 U.S.C. § 1616a (c)) is already incorporated into and
made applicable to 8 U.S.C. § 1324 (b) forfeitures. See 8 U.S.C.
§ 1324 (b) (3) (incorporating the customs laws forfeiture
procedures (19 U.S.C. § 1602 et seq.) by reference). We also
recommend that conspiracy to commit any of the violations
18
included in this section be added as predicate offenses.
Sec. 126 provides that any person convicted of a violation
of subsection 274 (a) or section 274A (a) (1) or 274A (a) (2) of this
Act, or of sections 1028, 1425, 1426, 1427, 1541, 1542, 1543,
1544, 1545, or 1546 of title 18, U.S.C., shall forfeit to the
U.S. any conveyance, including any vessel, vehicle, or aircraft
used in commission of a violation of 274 (a) of the INA, and any
property, real or personal, that constitutes or is derived from
or traceable to the proceeds obtained directly or indirectly from
a commission of a violation of, or that facilitates or is
intended to facilitate, or has been used in or is intended to be
used in the commission of a violation of subsection 274 (a) or
section 274A (a) (1) or 274A (a) (2) of this Act, or of sections
1028, 1425, 1426, 1427, 1541, 1542, 1543, 1544, 1545, or 1546 of
title 18, U.S.C.
The criminal forfeiture of property under this provision,
including any seizure and disposition of the property and any
related administrative or judicial proceeding shall be governed
by the provisions of section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, except for subsections 413 (a)
and 413 (d) which shall not apply to forfeitures under this
provision.
The provision is similar to the Administration's proposal,
and we support it. We note, however, that the appropriate
reference to the criminal provisions for alien smuggling are
sections 274 (a) (1) and (2) of the INA, and not 274A. We also
recommend that conspiracy to commit any of the violations
included in this section be added as predicate offenses.
Sec. 127 establishes the illegality of bringing inadmissible
aliens from foreign contiguous territories. It increases from
$3,000 to $5,000 the fine for bringing in an alien unlawfully.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 128 increases the term of imprisonment for
identification, passport, visa, naturalization, and citizenship
document fraud from not more than five years to not more than 10
years for a first offense if the offender is under the age of 21.
If the offender is 21 years of age or older, the term of
imprisonment for a first offense is not less than 2-1/2 or more
than 10 years; for a second offense, not less than 5 years or
more than 10 years; for subsequent offenses, not less than 10 or
more than 15 years. The maximum term of imprisonment is up to 15
years if committed to facilitate a drug trafficking offense, and
up to 20 years if committed to facilitate an act of international
terrorism.
19
S. 754 amends 18 U.S.C. 1028 (b) (1) on identification
document fraud to increase the maximum term of imprisonment from
5 to 10 years. S. 754 has identical provisions for section
1028 (b) (1) violations committed to facilitate a drug trafficking
offense or an act of international terrorism.
For consistency we believe that any provisions affecting
sections 1542-1546 in Chapter 75 (passports and visas) of title
18 U.S.C. should include section 1541 (relating to passport
issuance without authority), which currently carries the same
maximum penalties as the other Chapter 75 statutes.
The Administration does not object to increasing the maximum
penalties for third and subsequent offenses. However, we do not
believe that the mandatory minimums in this section are
appropriate. Providing for mandatory minimum penalties in this
context would produce anomalous results compared to penalties for
other offenses of comparable severity, particularly many white
collar crimes.
The Sentencing Commission recently adopted guideline
amendments which became effective on November 1, 1995, and will
significantly increase the punishments for these offenses. In
our view, the Commission's guideline amendments should be given
an opportunity to work before additional changes are made.
Sec. 129 adds a new penalty to 18 U.S.C. 1546 (a) for
presenting a document that contains a false statement or that
fails to contain any reasonable basis in law or fact.
We support this provision.
Sec. 130 adds a new criminal provision to section 274C of
the Act which penalizes any person who knowingly and willfully
fails to disclose, conceals, or covers up the fact that he or she
has prepared or assisted in preparing an application for asylum
which was falsely made for immigration benefits. A violation of
this provision is a felony and a fine or imprisonment for 2 to 5
years, or both, may be imposed. This section prohibits a person
who has been convicted of this offense from any further
involvement in the immigration application process. Anyone
convicted of a subsequent violation is punishable by a fine, 5 to
15 years imprisonment, or both.
Current criminal statutes are adequate to punish this type
of illegal conduct. Stepped up investigation efforts have led to
indictments for fraudulent preparation of spurious asylum claims
in New York, Los Angeles, San Francisco, and Arlington, Virginia.
We do not believe that a new and special offense is needed to
prosecute a person involved in assisting in fraud in the asylum
process. Furthermore, mandatory minimum sentences are not
appropriate in this context.
20
Sec. 131 inserts an additional violation to section 274C of
the Act, by prohibiting preparing, filing, or assisting another
in preparing or filing documents which are falsely made, in
reckless disregard of the fact that the information is false or
does not relate to the applicant. This section also adds a
penalty for those aliens who present a document upon boarding a
carrier bound for the U.S. and then fail to present a document to
the inspector at the port of entry. A discretionary waiver for
penalties is provided if an alien is subsequently granted asylum
or withholding of deportation.
This provision is substantially similar to the
Administration's proposal, and we support it.
This section also creates new civil penalties if the
document fraud is committed in order to obtain a benefit under
the INA. This section authorizes an administrative law judge to
double civil penalties for document fraud if labor standards
violations are present.
We support this provision.
Sec. 132 adds to the current exclusion ground for
misrepresentation at section 212 (a) (6) a ground for document
fraud and for failure to present documents to the inspector at
the port of entry. It makes excludable any alien who, in seeking
entry to the U.S., or upon boarding a common carrier for the
purpose of coming to the U.S., presents any document which, in
the determination of the immigration officer, is forged,
counterfeit, altered, falsely made, stolen, or otherwise contains
a misrepresentation of a material fact. It makes excludable any
alien who is required to present prior to boarding a common
carrier a document relating to the alien's eligibility to enter
the U.S. but fails to present such document upon arrival.
We do not believe either of these provisions is needed.
Current law at section 212 (a) (6) is broad enough to cover
fraudulent documents of any nature and already makes a person
excludable who attempts to gain entry through use of such
documents. Section 212 (a) (7) makes excludable both immigrants
and nonimmigrants who seek to enter without the required
documents. Consequently, we do not support this section.
Sec. 133 provides that aliens excludable because of document
fraud under the new section 212 (a) (6) (C) (iii) and excludable
aliens brought or escorted into the U.S. having been interdicted
at sea are ineligible for relief from exclusion, including
withholding of deportation and asylum, subject to a "credible
fear of persecution" exception.
Because the new section 212 (a) (6) (C) (iii) subsumes much of
what is now covered by section 212 (a) (6) (C) (i), it may
21
effectively eliminate the waivers for exclusion for fraud
provided by the INA. Section 212 (d) (3) provides for a general
waiver of excludability for nonimmigrants. In addition, section
212 (i) of the INA currently provides for a waiver for exclusion
for fraud for an immigrant who is the spouse, parent, or son or
daughter of a U.S. citizen or of a lawful permanent resident, or
if the fraud occurred at least 10 years before an application for
a visa or entry. We believe that the availability of these
discretionary waivers is consistent with a fair and humanitarian
immigration policy.
Similarly, the restriction on withholding of deportation in
section 133 for an alien who is inadmissible under section
212 (a) (6) (C) (iii), as written, would apply irrespective of
whether special exclusion is invoked. We do not support this
provision, and we recommend limiting the restriction to those in
special exclusion proceedings.
As a technical matter, we urge the Committee to replace the
term "special inquiry officer" with "immigration judge" and to
adopt the following definition for "immigration judge": an
attorney whom the Attorney General appoints as an administrative
judge within the Executive Office for Immigration Review,
qualified to conduct specified classes of proceedings, including
proceedings under section 240. An Immigration Judge shall be''
subject to such supervision and shall perform such duties as the
Attorney General shall prescribe.
Part 4 -EXCLUSION AND DEPORTATION
Our comprehensive strategy for identifying and removing
undocumented aliens has had significant success over the past
three years. In Fiscal Year (FY) 1994, the INS deported a total
of 39,788 illegal aliens. An additional 1,023,000 aliens were
voluntarily removed. A total of 5,597 aliens were excluded from
entry, and another 5,794 were subject to required departures.
We had even greater success deporting aliens in 1995. We
surpassed our FY 1995 goal of 28,500 criminal alien removals and
set a new record of 31,654 non-criminal alien removals. Our
calendar year removals for 1995 are 14 percent higher than our
removals in 1994 and 74 percent higher than the removals in 1990.
The prospects for 1996 are even better. We will substantially
increase the number of non-criminal alien removals in FY 1996 by
establishing absconder removal teams and by making strategic use
of enhanced detention and transportation capacity.
Sec. 141 provides that the Attorney General may, without
referral to an immigration judge or after such a referral, order
the exclusion and deportation of an alien who appears to be
excludable when (1) the alien has entered the U.S. without having
been inspected and admitted by an immigration officer, unless
such alien has been physically present in the U.S. for a
22
continuous period of two years since entry without inspection, or
the alien is excludable under section 212 (a) (6) (C) (iii) i (2) when
the alien is brought or has arrived on board a smuggling vessel;
or (3) the Attorney General determines that the numbers or
circumstances of aliens en route to or arriving in the U.S.
present an extraordinary migration situation. The judgement
whether an extraordinary migration situation exists or whether to
invoke these provisions is committed to the sole and exclusive
discretion of the Attorney General. The Attorney General may
invoke the provisions of this section during an extraordinary
migration situation for a period not to exceed 90 days, unless
within such 90 day period or extension thereof, the Attorney
General determines, after consultation with the House of
Representatives and Senate Committees on the Judiciary, that an
extraordinary migration situation continues to warrant such
procedures remaining in place for an additional 90-day period.
A person will not be subject to expedited exclusion if he or
she claims asylum and establishes a credible fear of persecution
in his or her country of nationality. A special exclusion order
is subject to administrative review only if an alien claims under
oath to have been and appears to have been lawfully admitted for
permanent residence.
We are pleased that this section has moved significantly
closer to the Administration's provision. We strongly support
making the applicability of the special exclusion procedures
discretionary and explicitly authorizing the special exclusion of
aliens who are intercepted on the high seas, within the
territorial sea or internal waters. The Coast Guard frequently
interdicts illegal aliens on the high seas and is required to
keep the aliens at sea while arrangements are made for a third
country to accept the aliens so they may be resettled. This is
neither resource efficient nor cost effective. Two interdiction
cases in 1995 consumed a total of 105 cutter days and 548
aircraft hours in order to deliver the interdicted migrants to El
Salvador and Mexico. Using standard rates, these cases cost in
excess of $7 million. Clearly, there is a need for special
exclusion authority. Rapid delivery of the aliens to the United
States for special exclusion would allow the Coast Guard vessels
to promptly return to their primary law enforcement mission,
including drug interdiction and search and rescue.
However, we have concerns about making special exclusion
applicable to aliens who entered without inspection. For those
aliens who have been here for lengthy periods after having
entered without inspection, the determination of when they
entered will be difficult and could lead to protracted
litigation. If such authority is to be used at all, it should be
invoked only in extraordinary migration situations and only in
circumstances that would support a strong presumption that the
person's entrance without inspection was quite recent. We would
23
be willing to work with the Committee to revise this provision in
response to our concerns.
As we stated in section 133, we urge the Committee to
replace the term "special inquiry officer" with "immigration
judge" and to adopt our definition of "immigration judge".
Sec. 142 streamlines judicial review of Orders of Exclusion
or Deportation. This section revises and amends section 106 of
the INA. Many of the provisions are similar to that of S. 754.
This section provides for judicial review of final
administrative orders of both deportation and exclusion through a
petition for review, filed in the judicial circuit in which the
immigration judge completed the proceedings. Under current law,
an order of exclusion is appealable to a district court and then
appealable to the court of appeals. This provision is similar to
the Administration's proposal.
This section requires that a petition for review be filed
within 30 days, except that an aggravated felon must file within
15 days. We recommend that the uniform filing period of thirty
(30) days contained in S. 754 be adopted, to avoid an additional
issue for the courts which, if litigated, would take far more
than fifteen days to resolve.
The filing of a petition stays deportation except for
aggravated felons, who must apply to the court for a stay. S.
754 contains a similar provision.
Under this bill, there is no review of discretionary denials
under sections 212 (c), 212 (i), 244 (a) and (d), and 245. We do
not support this provision. We do not believe that appeals to
the courts of such denials have unduly burdened the courts or
unduly delayed deportations.
Denials of asylum are "conclusive unless manifestly contrary
to law and an unconscionable abuse of discretion." S. 754
provides that all the administrative findings of fact supporting
an order of exclusion or deportation are conclusive unless a
reasonable adjudicator would be compelled to conclude to the
contrary. We recommend that the language of S. 754 be
substituted as consistent with current decisional law and more
workable.
As in current law, a court may review a final order only if
the alien has exhausted all administrative remedies. This
section adds a requirement that no other court may decide an
issue, unless the petition presents grounds that could not have
been presented previously or the remedy provided was inadequate
or ineffective to test the validity of the order. S. 754 also
includes this provision.
24
Under section 106 (f) there is no judicial review of an
individual order of special exclusion or of any other challenge
relating to the special exclusion provisions. The only
authorized review is through a habeas corpus proceeding, limited
to determinations of alienage, whether the petitioner was ordered
specially excluded, and whether the petitioner can prove by a
preponderance of the evidence that he is an alien admitted for
permanent residence and is entitled to further inquiry. In such
cases the court may order no relief other than a hearing under
section 236 or a determination in accordance with sections 235 (a)
or 273 (d) There shall be no review of whether the alien was
actually excludable or entitled to relief. S. 754 contains
similar provisions. However, S. 754 does not make special
exclusion applicable to all the same cases as S. 1394 does, as
noted in our comments on section 141 above.
Under new section 106 (g), no collateral attack may be
brought by an alien subject to penalties for improper entry or
reentry. S. 754 contains a similar provision, at section 106 (d)
Sec. 143 subjects an alien who willfully fails to depart on
time pursuant to a final order of exclusion and deportation or a
final order of deportation to a $500 per day penalty.
This provision is similar to the Administration's proposál,
and we support it.
Sec. 144 permits deportation proceedings to be conducted by
video conference or telephone. The alien must consent to such a
hearing by telephone if it is to be a full contested evidentiary
hearing on the merits.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 145 clarifies the authority of immigration judges to
issue subpoenas in proceedings under sections 236 (exclusion) and
242 (deportation) of the INA.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 146 amends section 242B of the Act to eliminate the
requirement that an order to show cause be issued in Spanish to
every alien.
We believe that this section would create more litigation on
the adequacy and accuracy of the notice in English only. A
written notice in a language the alien understands, which is most
often Spanish, protects the INS from unnecessary delays of
enforcement actions based upon whether sufficient notice was
provided as well as informs the alien of the nature of the
25
action. In order to avoid unnecessary and costly due process
litigation, it would be best not to amend this provision of the
INA.
This section would also amend the requirement at 242B (b) (1)
that an alien be given 14 days from service of an order to show
cause to obtain counsel before a hearing is scheduled, to provide
that a hearing may be scheduled within three days for an alien
who is detained. The section also amends section 292 to provide
that the alien's right to obtain counsel must not unreasonably
delay proceedings.
We believe that the current 14-day period gives the alien a
fair and better opportunity to obtain counsel. The INS'
experience has been that deportation proceedings move more
quickly if an alien does have counsel. In addition, immigration
judges normally provide at least one continuance to allow an
alien a reasonable opportunity to obtain counsel. S. 1394's
proposed shortening of the time period in which aliens may obtain
counsel may not achieve the intended result of speeding up
deportation proceedings. Like the notice language requirement,
the 14 day period is not burdensome to INS and its repeal may
unintentionally cause delay in deportations or encourage
frivolous appeals. We do not support this provision.
Sec. 147 authorizes withholding of nonimmigrant visas to
nationals of countries that refuse or unduly delay acceptance of
their nationals for deportation.
S. 754 contains a similar provision, but S. 754's provision
allows the Secretary of State maximum flexibility in implementing
this section of the law. We recommend that the suspension of
nonimmigrant visas be discretionary and not automatic because
there may be foreign policy, national security, or other reasons
in a particular circumstance where suspension would not be in the
best interest of the U.S. We recommend that the Committee change
the "Secretary of State shall" to the "Secretary of State may".
Sec. 148 authorizes appropriation of $10,000,000 in a
special "no-year" fund for detaining and removing aliens who are
subject to final orders of deportation.
We support this provision.
Sec. 149 authorizes appropriations for the Attorney General
to conduct a pilot program or programs to study methods for
increasing the efficiency of deportation and exclusion
proceedings against detained aliens by increasing the
availability of pro bono counseling and representation. The
Attorney General may use funds to award grants to not-for-profit
organizations assisting aliens.
26
This provision is identical to the Administration's
proposal, and we support it.
Sec. 150 limits relief under section 212 (c) of the INA to a
person who has been lawfully admitted to the U.S. for at least 7
years, has been a legal permanent resident for at least 5 years,
and is returning to such residence after having temporarily
proceeded abroad not under an order of deportation. The 5-year
and 7-year periods would end upon initiation of exclusion
proceedings. An alien who has been convicted of one or more
aggravated felonies and has been sentenced for such felonies to a
term or terms of imprisonment totalling, in the aggregate, at
least 5 years is ineligible for 212 (c) relief and cancellation of
deportation. Also, relief under INA section 212 (c) will be
available only to persons in exclusion proceedings, and persons
in deportation proceedings will need to apply for cancellation of
deportation.
Cancellation of deportation is available to an alien who has
been a lawful permanent resident for at least 5 years who has
resided in the U.S. continuously for 7 years after being lawfully
admitted and has not been convicted of an aggravated felony or
felonies for which the alien has been sentenced to a term or
terms of imprisonment totalling, in the aggregate, at least 5
years.
The cancellation of deportation provisions basically replace
both the 212 (c) remedy for legal permanent resident aliens who
have not departed the United States, and the suspension remedy
for aliens who have been here unlawfully. However, section 150
omits the current provision at section 244 (a) (3), providing for
suspension of deportation for battered spouses of U.S. citizens
or lawful permanent residents, who have been physically present
for three years. This provision was added to the INA by section
40703 (a) (3) of the Violent Crime Control and Law Enforcement Act
of 1994 (Pub. L. 103-322, September 13, 1994) We recommend that
the provisions of current section 244 (a) (3) be included in
section 150. Because this provision was just recently enacted
and because of the special circumstances involving these
applications, we recommend that for battered spouses of U.S.
citizens or lawful permanent residents the physical presence
period not be deemed to end upon service of the order to show
cause. Also, current subsection 244 (g), relating to evidence
submitted by abused or battered spouses, should remain.
This section does not permit appeal from a denial of a
request for an order of voluntary departure. S. 754 allows such
an appeal provided that no court shall have jurisdiction over an
appeal regarding the length of voluntary departure where the
alien has been granted voluntary departure for 30 days or more.
We oppose eliminating judicial review as an unwarranted departure
from longstanding procedural rights. We recommend that the
27
Committee adopt the S. 754 provision.
Sec. 151 defines a stowaway as any alien who obtains
transportation without consent or through concealment or evasion.
This section also clarifies that a stowaway is subject to
immediate exclusion and deportation; however, a stowaway may
apply for asylum or withholding of deportation. The carrier will
be required to detain a stowaway until he or she has been
inspected by an immigration officer and to pay for any detention
costs incurred by the Attorney General should the alien be taken
into custody. It raises the fine for failure to remove a
stowaway from $3,000 to $5,000 per stowaway.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 152 directs the Attorney General, after consultation
with the Secretary of State, to establish a pilot program for up
to two years for deterring multiple unauthorized entries. The
program may include interior repatriation, third country
repatriation and other disincentives for multiple unlawful
entries into the U.S. This provision also requires the Attorney
General, together with the Secretary of State, to submit a report
to the Senate and House Committees on the Judiciary on the
operation of the pilot program and whether the pilot program or
any part thereof should be extended or made permanent.
This is an area of enforcement in which the Administration
already has made progress. This provision is similar to the
Administration's proposal, and we support it.
Sec. 153 authorizes the Attorney General and the Secretary
of Defense to establish a pilot program for up to 2 years to
determine the feasibility of the use of closed military bases as
detention centers for INS. Within 35 months after enactment,
they must submit a feasibility report to the House and Senate
Committees on the Judiciary, and the House and Senate Committees
on Armed Service.
The use of closed military bases would make additional
detention space available to INS. At present, INS is forced to
release many aliens who are awaiting proceedings due to lack of
detention space. We have worked with the Department of Defense
in conjunction with the Bureau of Prisons and other agencies to
explore the use of closed bases. Conversion costs and staffing
have been the most difficult problems to resolve. Accordingly,
this provision does not address the underlying obstacles that
would permit such a pilot to be conducted.
Sec. 154 would amend section 212 of the INA to exclude
prospective immigrants who have not received immunizations
against vaccine-preventable diseases for aliens seeking permanent
28
residency.
While reducing the number of unvaccinated persons in the
United States is a laudable goal, the mechanism outlined in this
section would present a number of implementation and other
difficulties that may actually jeopardize the public health in
the United States.
In many countries, the vaccines specified under this section
might not be licensed. Even if these vaccines are licensed, they
may not be readily available or the costs of these vaccines may
be prohibitive for some prospective immigrants. In addition, an
immigrant's visa could be delayed as much as 18 months in order
to allow time to receive all recommended doses of the specified
vaccines, over the interval recommended by the Advisory Committee
Immunization Practices (ACIP).
The ACIP-recommended vaccine schedule is complex and lengthy
and subject to regular revisions. It would be difficult and
labor intensive for Department of State and INS officials at
entry points in the U.S. to check individual immunizations
records against ACIP schedule and to ensure that U.S. government
officials are using the most up-to-date revisions. Neither the
Department of State nor the INS have the resources to verify the
authenticity of most vaccination certificates.
The requirements outlined in section 154 could subject
immigrants to serious delays, considerable expense, and the
prospect of having to choose between emigrating as a family or
splitting up the family to allow, for example, an adult to
emigrate to begin employment in the United States while other
family members stay behind to complete the immunization
requirements. The result might be that the immigrant might
choose to secure false immunization records rather than attempt
to comply with the requirements imposed by section 154. If that
were to happen, the immigrant, once admitted to the U.S., would
be thought to have been vaccinated. Yet, the immigrant could
become infected and could transmit a vaccine-preventable disease
to others in the U.S. To further confound the matter, the
unimmunized person may be unwilling to admit he was not
vaccinated, fearing that he could become subject to deportation.
Under current state laws, children in the U.S. are required
to comply with immunization requirements before they enter
school. Therefore, the current public health system would
"capture" school-aged immigrant children almost immediately upon
entry into the U.S. Even without the proposed provision in the
immigration bill, these children would be vaccinated once they
came to the U.S. In addition, in many states, licensed day care
establishments also have immunization requirements.
We would like to work with the Committee to develop an
29
amendment to reduce the number of unvaccinated persons in the
United States but that would address our concerns.
Sec. 155 requires immigrants and nonimmigrants, except
physicians, who seek to work in the U.S. to obtain a
qualifications certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS) or from an equivalent independent
credentialing organization approved by the Secretary of Labor.
Such certificate must verify that (1) the individual's education,
training, and experience meet statutory and regulatory
requirements for admission to the U.S. under the classification
specified and are comparable to that required for U.S. workers in
the health care occupation; (2) any foreign license submitted is
authentic and unencumbered; (3) the individual has English
language proficiency; and (4) foreign registered nurses have
passed a nursing skills examination.
The Administration believes that this provision, as drafted,
is far too broad and would require substantial additional
resources for affected agencies to administer. In addition, the
imposition of the credentialing requirement may not be in
conformity with U.S. obligations undertaken in NAFTA, Chapter 16,
and the English language requirement for all health care workers
does not appear to be in conformity with U.S. obligations
undertaken in NAFTA and GATS. If this provision is to be
3
retained in the bill, we would recommend the following changes.
Since the INS has responsibility for and experience in
determining the qualifications of aliens to be admitted to the
U.S. and the acceptability of Credential Evaluation Services for
1
such purposes, the Administration believes that any approval of a
credentialing organization in lieu of CGFNS would be more
appropriately administered by INS in consultation with the HHS
rather than the Secretary of Labor.
The proposed provision covers all health care workers
(except physicians) under any visa classification. This would
involve more than 100 different occupations, many of which do not
require licensure or formal minimum industry requirements for
entry into the occupation. While CGFNS may now have the capacity
to expand its operations to determine U.S. requirements for
health care occupations, to evaluate foreign credentials, and to
develop and administer occupational and English language
proficiency tests world-wide, we know of no other equivalent
organization in the United States. We would, therefore,
recommend defining health care occupations to include only those
which involve treatment of patients, dispensing of medication,
operation of diagnostic equipment, and performing laboratory
tests on blood or tissue. Further, only if the CGFNS ceased
issuing certificates should INS, in consultation with HHS,
designate another acceptable credentialing organization which
may, or may not, be equivalent to CGFNS.
30
With regard to section 9 (iv), which concerns requiring
foreign nurses to pass a nursing examination, this section should
be expanded to state that "if the alien is a registered nurse,
the alien has passed an examination testing both nursing
knowledge and English language proficiency."
Finally, Canadian and Mexican health care workers should be
treated in a manner consistent with the NAFTA agreement. In
addition, requirements applicable to other alien health care
workers will need to take into account our other international
trade obligations. We would be pleased to work with the
Committee to effect such needed changes to this provision.
PART 5 --CRIMINAL ALIENS
The Administration has made removals of criminal aliens a
priority and achieved dramatic success. The number of criminal
aliens removed from the U.S. jumped by 12% in 1993, and by 17.6%
in 1994 over 1992 levels. More than four times as many criminal
aliens were removed in 1994 than in 1988. We surpassed our FY
1995 goal of 28,500 criminal alien removals and set a new record
of 31,654 non-criminal alien removals. Even more criminal aliens
will be deported next year as we further streamline deportation
procedures, expand the Institutional Hearing Program, and enhance
the international prisoner transfer treaty program. In addition,
other INS initiatives, such as the National Alien Transportation
Program, provide for the detention and removal of more criminal
aliens. INS technology enhancements are playing a critical role
in removing criminal aliens, as are INS alternatives to formal
deportation, such as stipulated, judicial, and administrative
deportation.
Sec. 161 amends the definition of aggravated felony
contained in 8 U.S.C. Sec. 1101 (a) (43) to include: (1) an offense
relating to laundering of monetary instruments or relating to
engaging in monetary transactions in property derived from
specific unlawful activity is an aggravated felony if the amount
of funds exceeds $10,000 (down from $100,000) ; (2) a crime of
violence, a theft offense (including receipt of stolen property)
or burglary offense, or an offense relating to trafficking of
fraudulent documents, for which the term of imprisonment is a
minimum of at least two and one half years or a maximum of at
least five years (down from 5 years imposed) i (3) a RICO offense,
as well as offenses described in 18 U.S.C. 1084 or 1955, for
which the term of imprisonment is a minimum of at least two and
one half years or a maximum of at least five years (down from 5
years) ; (4) offenses relating to transportation for the purpose
of prostitution for commercial advantage; (5) a violation of
Section 601 of the National Security Act relating to protecting
the identity of undercover agents; (6) an offense that involves
fraud or deceit in which the loss to the victim exceeds $10,000
(down from $200,000) or involves tax evasion in which the revenue
31
loss to the Government exceeds $10,000 (down from $200,000) ; (7)
alien smuggling without regard to commercial advantage except for
a first offense in which the alien has affirmatively shown that
he or she committed the offense for the purpose of aiding only
the alien's spouse, child or parent; (8) any violation of 18
U.S.C. 1546 (a) (relating to document fraud) except for a first
offense in which the alien has affirmatively shown that he or she
committed the offense for the purpose of aiding only the alien's
spouse, child or parent; (9A) any offense relating to commercial
bribery, counterfeiting, forgery or trafficking in vehicles whose
identification numbers have been altered, which is punishable by
imprisonment for a minimum of at least two and one half years or
a maximum of at least five years; (9B) any offense relating to
perjury or subornation of perjury which is punishable by
imprisonment for a minimum of at least two and one half years or
a maximum of at least five years; (10) any offense relating to a
defendant's failure to appear for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5
years (down from 15 years) or more.
This section also prohibits the Attorney General from
withholding the deportation of aliens who have been convicted of
one or more of the following: an aggravated felony or an attempt
or conspiracy to commit an aggravated felony for which the term
of imprisonment imposed or served is or was at least five years;
a crime of violence or attempt or conspiracy to commit such a
crime of violence for which the term of imprisonment imposed or
served is or was at least three years; or any of the following
aggravated felonies or attempt or conspiracy to commit such
offense: murder, illicit drug trafficking, illicit firearms
trafficking, explosive materials offenses, demand for ransom,
child pornography, racketeering, national security offense,
slavery.
We oppose expanding the definition of aggravated felon to
include persons convicted of crimes punishable by imprisonment
for 2 1/2 years or more. The grave consequences of being
considered an aggravated felon include being ineligible for
withholding of deportation and asylum, and being subject to
mandatory detention and expedited deportation proceedings, and
should be imposed only on serious criminals. Current law gives
immigration judges the discretion to weigh the seriousness of the
crime against the positive equities of each individual case and
to grant relief only where it is appropriate. Immigration judges
should be allowed to retain this discretion. The expanded
definition would also impose a burden on the operations of the
INS which is required to detain all aggravated felons, except for
certain lawful permanent residents. Finally, wide imposition of
aggravated felon consequences run afoul of our obligations under
the 1967 Protocol relating to the Status of Refugees not to
return a refugee who has not committed a particularly serious
crime to a place of persecution and hinder law enforcement's
32
ability to enter into cooperation agreements with aggravated
felons.
We recommend that the Senate adopt the provisions in S. 754
which provide that an alien is ineligible for withholding of
deportation based on an aggravated felony conviction when the
sentence imposed is 5 years or more. This provision will ensure
compliance with U.S. obligations under the 1967 Refugee Protocol
by only permitting the return to possible persecution of refugees
who have committed a particularly serious crime and will
facilitate application of the definition and make the law truly
effective in removing aggravated felons.
Regarding section 161 (a) (8) we believe that the "commercial
advantage" language found in section 406 of S. 754 provides a
more flexible approach for compelling cases than the narrower
approach in section 161 (a) (8) We urge the Committee to adopt
the S. 754 "commercial advantage" language.
Sec. 162 makes an alien convicted of an aggravated felony
ineligible for suspension of deportation and adjustment of
status.
We support this provision.
Sec. 163 provides that the expeditious deportation of
aggravated felons creates no enforceable right for aggravated
felons.
This provision is identical to section 604 of S. 754, and we
support it.
Sec. 164 permits the Attorney General to release an alien
convicted of an aggravated felony if the alien is not a threat to
the community and release from custody is necessary to provide
protection to a witness, a potential witness, a person
cooperating with an investigation into major criminal activity,
or an immediate family member of such person. The section
provides that the Attorney General shall take into custody any
alien convicted of an aggravated felony when the alien is
released and may release the alien only if he was lawfully
admitted into the U.S., likely to appear for any scheduled
proceeding and not a threat to the community or when the Attorney
General determines that release from custody is necessary to
provide protection to a witness, a person cooperating with an
investigation into major criminal activity, or an immediate
family member.
This provision is identical to section 308 of S. 754, and we
support it.
Sec. 165 amends section 242A (d) of the INA to provide that a
33
U.S. District Court shall have jurisdiction to enter a judicial
order of deportation at the time of sentencing against an alien
(A) whose criminal conviction causes the alien to be conclusively
presumed to be deportable as an aggravated felon; (B) who has at
any time been convicted of a violation of section 276 (a) or (b) ;
(C) who has at any time been convicted of a violation of section
275; or (D) who is otherwise deportable pursuant to sections
241 (a) (1) (A) through 241 (a) (5).
It provides that a U.S. Magistrate shall have jurisdiction,
to enter a judicial order of deportation at the time of
sentencing where the alien has been convicted of a misdemeanor
offense and the alien is deportable under this Act. The U.S.
Attorney, with the concurrence of the Commissioner, may enter
into a plea agreement which calls for the alien, who is
deportable under this Act, to waive the right to notice and a
hearing under this section, and stipulate to the entry of a
judicial order of deportation as a condition of the plea
agreement or as a condition of probation or supervised release,
or both.
The existing judicial deportation statute authorizes a U.S.
District Court to order deportation at the time of sentencing if
the conviction renders an alien deportable as an aggravated felon
or for certain crimes involving moral turpitude. This provision,
however, would allow U.S. District Judges and U.S. Magistrates
(in misdemeanor cases) to order deportation on any grounds of
deportability.
We believe that in order to maintain a coherent national
immigration policy, close questions relating to alienage,
deportability, and particularly relief from deportation should be
initially decided in the context of administrative proceedings,
followed by judicial review, rather than in criminal cases.
Therefore, in view of the DOJ responsibility to administer and
enforce immigration laws, we believe that judicial deportation
authority should be limited to situations in which the alien is
before the court for sentencing for an aggravated felony or a
serious crime involving moral turpitude. The phrase
"conclusively presumed to be," should be deleted from the
proposed amendment to section 242A (d) (1) (A). It is confusing and
adds nothing to an otherwise clear statement that an alien who
has been convicted of an aggravated felony is deportable.
Sec. 166 permits the entry of orders of exclusion and
deportation stipulated to by the alien and the INS and provides
that stipulated orders are conclusive. Such orders may be
entered without a personal appearance by the alien before the
special inquiry officer. DOJ shall provide that an alien who
stipulates to an exclusion or deportation order waives all appeal
rights.
34
This provision is identical to the Administration's
proposal, and we support it. However, as we stated in section
133 and 141, we urge the Committee to replace the term "special
inquiry officer" with "immigration judge" and to adopt our
definition of "immigration judge".
Sec. 167 permits a U.S. District Court or Magistrate to
order deportation pursuant to a stipulation entered into by the
defendant and the U.S. In the absence of a stipulation, the
Court or Magistrate may order deportation as a condition of
probation, if, after notice and hearing pursuant to section
242A (c), the Attorney General demonstrates by clear and
convincing evidence that the alien is deportable.
We do not support this provision because we believe it is
unnecessary. Under 18 U.S.C. 3583 (d), the District Court
presently has the authority to order deportation as a condition
of supervised release. Under that provision, if the District
Court issues such an order, the alien is referred to INS for
deportation. Section 302 (d) of the Administration proposal would
amend that section to provide that such an order be made
"pursuant to the procedures of the Immigration and Nationality
Act. " This amendment would address an issue in litigation in
which District Court judges have interpreted this section to
authorize them to order deportation irrespective of the
provisions of the INA. We urge the Committee to add section
302 (d) in place of this provision.
Sec. 168 requires the Attorney General to submit within one
year of the date of enactment and annually thereafter a report to
the Committees on the Judiciary of the House and Senate on the
number of illegal aliens incarcerated in state and federal
prisons stating the number incarcerated for each type of offense;
the number of illegal aliens convicted for felonies in any
federal or state court but not sentenced to incarceration in the
previous year, by type of offense; DOJ programs and plans
underway to ensure the prompt removal from the U.S. of criminal
aliens subject to exclusion or deportation; and
methods for identifying and preventing the unlawful reentry of
aliens who have been convicted of criminal offenses in the U.S.
and removed from the U.S.
We are concerned that paragraph (2) requires the Attorney
General to report, on the number of aliens convicted but not
sentenced to incarceration. Without providing any resources,
this provision would require significant effort on the part of
state prosecutors and courts which are not under the
administrative jurisdiction of the DOJ. We do not support this
provision.
Sec. 169 authorizes INS to use appropriated funds to lease
space, establish, acquire, or operate business entities for
35
undercover operations, proprietary corporations or businesses to
facilitate undercover immigration-related criminal
investigations. INS may deposit funds generated by these
operations or use them to offset operational expenses. Authority
may be exercised only upon written certification of the INS
Commissioner in consultation with Deputy Attorney General.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 170 provides that the Secretary of State, together with
the Attorney General, may enter into an agreement with any
foreign country providing for the incarceration in that country
of any individual who is a national of that country and is an
alien who has been convicted of a criminal offense under federal
or state law and who is not in lawful immigration status or is
subject to deportation, for the duration of the prison term to
which the individual was sentenced. Any such agreement may
provide for the release of such individual pursuant to parole
procedures of that country. The Secretary should give priority
to concluding an agreement with any country for which the
President determines that the number of such individuals who are
nationals of that country in the United States represents a
significant percentage of all such individuals in the United
States.
This section also provides that it is the Sense of Congress
that no new treaty should permit the prisoner to refuse the
transfer. It also provides that, except as required by treaty,
the transfer of an alien shall not require the alien's consent.
We agree that some level of nonconsensual prisoner transfer
should be implemented; however, the current proposal is
problematic in several areas. A number of concerns must be
resolved prior to implementing such a regime.
Initially, the proposed legislation effectively directs the
President to negotiate certain treaty provisions; the
Administration believes that this type of Congressional direction
is undesirable and may be inconsistent with the President's
authority to make treaties and conduct foreign relations.
Section 170 (a) provides that transferred aliens will be
incarcerated for the duration of their sentences; however, this
conflicts with the balance of that section which further provides
for the release of such transferred persons pursuant to the
parole procedures of that country. Section (b) (1) seeks to
clarify the focus of 170 (a) -- to expedite the transfer of
affected aliens and ensure that the balance of their sentences
are served, but it appears to contradict (a). This provision,
however, may infringe upon the sovereignty of the parties in
administering the transferred sentence thus raising concerns
36
related to international treaty obligations and relations with
our treaty partners.
The proposal appears to offer little incentive for countries
with large numbers of their nationals in U.S. prisons to
renegotiate prisoner transfer treaties, or negotiate
nonconsensual transfer agreements. Even to the extent that such
countries have large numbers of U.S. nationals in their prisons,
it is not clear that the transfer of U.S. prisoners is a high
priority for the governments of these countries or, indeed, a
desirable goal at all. To the extent that the U.S. has to put
pressure on a reluctant country to renegotiate a prisoner
transfer agreement, we are concerned that such pressure might
lead to minimal or nominal compliance. Foreign governments that
have entered into such agreements under duress may not vigorously
honor their commitments to keep potentially dangerous convicted
felons in prison.
The State Department has also noted that involuntary
transfers of prisoners whose crimes were not particularly serious
or who do not present a danger could run afoul of our obligations
under the 1967 Protocol relating to the Status of Refugees not to
return a refugee to a place of persecution. Further, the U.S. is
severely limited in its ability to monitor activities in foreign
countries' prisons, most importantly with respect to potential
human rights abuses which might be directed against the
transferred prisoners. The State Department notes that the U.S.
might bear some legal responsibility in such human rights abuse
cases. Finally, such agreements would almost certainly have to
contain a reciprocal provision for the involuntary transfer of
U.S. citizens imprisoned in foreign countries back to the U.S.
Non-consensual transfers of U.S. citizens from foreign prisons
back to the U.S. may well raise issues of a constitutional
nature.
In 1994, we transferred 424 prisoners abroad, including 394
to Mexico. The Mexican transfers alone resulted in a savings of
over $7.5 million for the DOJ. As of December 31, 1995, we
transferred 438 prisoners abroad, including 266 prisoners to
Mexico. In May 1995, the United States and Mexico had committed
to returning 400 Mexican nationals to Mexico pursuant to the
prisoner transfer program, by the end of December 1995. By
December 31, 1995, the DOJ had approved over 506 Mexican prisoner
transfer applications. Due to the large number of prisoners
scheduled to transfer to fulfill our commitment of 400, the
December transfer was to be completed in January 1996; however,
due to the government furlough, the second phase will occur at
the end of February.
Limited prison capacity in other countries seriously
inhibits our ability to increase significantly the number of
prisoner transfers. In our view, the premature release of
37
transferred prisoners due to a lack of prison space would be
unacceptable and inconsistent with the purposes of the transfer
treaty.
Sec. 170A requires the Secretary of State and the Attorney
General to submit to Congress not later than 180 days after this
Act's enactment a report that describes the use and effectiveness
of the prisoner transfer treaties with the three countries with
the greatest number of their nationals incarcerated in the U.S.
in removing from the U.S. such incarcerated nationals. The
report shall include the recommendations of the Secretary of
State and the Attorney General to increase the effectiveness and
use of the treaties. In considering the recommendations, the
Secretary of State and the Attorney General shall consult with
State and local officials in areas disproportionately impacted by
criminal aliens.
As a general matter, the Administration discourages the
imposition of reporting requirements, which necessarily divert a
significant commitment of resources away from prisoner transfers,
particularly when the resources of the DOJ's Office of
Enforcement Operations (OEO), which has responsibility for the
International Prisoner Transfer Program, are already limited.
Moreover, much of the information requested in the study would
have to be collected by the states which have similar resourcé
concerns. Previous reviews of the prisoner transfer program and
requests for information from the states have been met with mixed
responses.
When OEO assumed responsibility for the International
Prisoner Transfer Program, only 34 states had implementing
legislation. As a result of our outreach efforts, four more
states enacted implementing legislation. Many of the states
without the legislation expressed no interest in prisoner
transfer because of the limited number of foreign nationals in
their systems. Other states that expressed an interest have
other major priorities, SO state legislation to implement
prisoner transfer has been delayed. Further, according to the
American Correctional Association, which is comprised of
correctional specialists from the various states, very few states
have adequate prisoner tracking systems. Indeed, most do not
include a question relating to nationality or citizenship in
their intake process. Consequently, the ability to gather the
data contemplated by the Congress would be haphazard, at best,
because many states do not maintain such records. The DOJ is
working to help states collect such data. DOJ's Office of
Justice Programs has initiated a process to identify foreign
nationals incarcerated in state and local institutions, but this
system is only partially on-line and is not expected to be
completed in time for the report mandated by this provision.
Sec. 170B modifies the filing requirement for individuals
38
who keep, maintain, control, support, or harbor in any house or
place an alien for the purpose of prostitution. It limits
application of the filing requirement to whomever knows or
recklessly disregards the fact that said individual is an alien;
expands application to any alien; and reduces the time period in
which to file; increases the term of imprisonment from two to ten
years; and clarifies that the information contained in the filing
may be used in an action to enforce Section 274A of the INA.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 170C makes a technical correction to the Violent Crime
Control Act of 1994. It also clarifies that the INS may place an
alien in administrative deportation proceedings if a Federal
district court judge has declined the Government's petition to
issue a judicial deportation order.
This provision is identical to the Administration's
proposal, and we support it.
PART 6 .-MISCELLANEOUS
Sec. 171 permits reimbursement of other Federal agencies, st as
well as the States, out of the immigration emergency fund.
Reimbursements may be made to other countries for repatriation
expenses without the requirement that the President declare an
immigration emergency. It also permits the control and seizure
of vessels when the Attorney General determines that urgent
circumstances exist due to a mass migration of aliens. This
section also authorizes the Attorney General to designate local
enforcement officers to enforce the immigration laws when the
Attorney General determines that an actual or imminent mass
migration of aliens presents urgent circumstances.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 172 repeals the ban on open field searches by the INS.
Prior to 1986, searches of open agricultural areas
constituted a substantial portion of the INS's interior
enforcement efforts. However, since the employer sanctions
provisions of IRCA became effective in 1987, the INS has focused
its attention in this area on employer compliance and enforcement
of section 274A. We intend to continue with that approach.
Accordingly, while we do not object to the repeal of the "open
field" restrictions, we do not anticipate a change in the INS's
enforcement strategy as a result.
Sec. 173 makes it unlawful for any alien to vote in any
general or special election in the U.S. A violation is subject
39
to a fine of up to $5,000 or by imprisonment for up to three
years, or both.
This provision is unnecessary because laws prohibiting
unlawful voting already exist. False voter registration is a
violation of federal law under the National Voter Registration
Act, with more stringent penalties than those proposed in section
173 of S. 1394. 42 U.S.C. §1973gg-10(2) False assertion of
citizenship is also a violation of federal law. 18 U.S.C. §911.
Voter registration forms must list eligibility requirements,
which include citizenship in all states. Persons must attest
that they are eligible under penalty of perjury.
Section 173 also raises constitutional concerns. Although
no states currently allow aliens to vote in state or federal
elections, some states permit their local governments to allow
non-citizen residents to vote in local, usually school board,
elections only. However, Congress has no authority to regulate
these local elections in the manner proposed in section 173. U.S.
Const. art. 1, sec. 2, art. 1, sec. 4. The Constitution does not
confer on Congress any general authority to regulate the
qualifications for voters in state or local elections. On the
contrary, the power to regulate their own elections was
exclusively and intentionally reserved to the States by the
Framers of the Constitution. See U.S. Const., Amdt. X. As ;
Justice Black wrote in Oregon V. Mitchell, " [T] he whole
Constitution reserves to the States the power to set voter
qualifications in state and local elections, except to the
limited extent that the people through constitutional amendments
have specifically narrowed the powers of the States.' If 400 U.S.
112, 125 (1970) i accord Gregory V. Ashcroft, 501 U.S. 452, 461-62
(1991) ; Sugarman V. Dougall, 413 U.S. 634, 647 (1973).
Our federal system of government thus recognizes the States
as distinct sovereign entities with the inherent power to define
their political communities. Sugarman, 413 U.S. at 643. The
Supreme Court has said that the regulation of voter
qualifications in state and local elections is a necessary aspect
of this broad power: "No function is more essential to the
separate and independent existence of the States and their
governments than the power to determine within the limits of the
Constitution the qualifications of their own voters for state,
county, and municipal offices
II
Oregon
V.
Mitchell,
400
U.S. at 125. By dictating to the States which of its residents
may or may not be permitted to exercise the right to vote in
local elections, Congress would be intruding upon the States'
sovereignty over their own electorate. Only where Congress is
acting pursuant to its enforcement powers under constitutional
amendments that limit this traditional State authority - - such as
the Fourteenth and Fifteenth Amendments -- has the Supreme Court
sanctioned such intrusions. See, e.g., Oregon V. Mitchell, 400
U.S. 112 (upholding Congress' power to ban use of literacy tests
40
in state elections) ; South Carolina V. Katzenbach, 383 U.S. 301
(1966) (same) ; cf. Gregory V. Ashcroft, 501 U.S. at 461-68
(States' sovereignty over issues that "go to the heart of [their
own] representative government" has force even as against
proscriptions of Fourteenth Amendment). Such a situation is not
present here.
Of course, Article I, § 8, cl. 4 of the Constitution does
give Congress "broad power over immigration and naturalization."
Mathews V. Diaz, 426 U.S. 67, 79-80 (1977). Congress' plenary
authority to regulate both the status of aliens and the terms
under which they enter and remain in the country, DeCanas V.
Bica, 424 U.S. 351, 355 (1976), may be broad enough to justify
legislation which makes it a crime for aliens to vote in the
United States. Whether it is also broad enough to justify
Congress' intrusion upon the States' sovereignty over their own
political communities is unclear.
We are also concerned that section 173 may encourage
discrimination against and harassment of people who look foreign
and/or are language minorities, primarily Hispanics, Asians and
Native Americans. This section could potentially dilute the vote
of these groups of Americans by discouraging their participation
in the electoral process.
Sec. 174 amends section 202 (a) (1) of the INA, which provides
that immigrant visas must be issued without discrimination
because of race, sex, nationality, place of birth, or place of
residence, to state that nothing in this subsection limits the
authority of the Secretary of State to determine procedures for
processing visas. This section would reverse a recent judicíal
decision which interpreted the existing language to require the
Secretary of State to process visas in a specific location.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 175 clarifies the content and format for passenger
lists and manifests to be prepared and submitted by carriers to
INS, including name, date of birth, gender, citizenship, travel
document number, and arriving flight number.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 176 requires the Attorney General to develop not later
than 2 years after the enactment of this Act an automated entry
and exit control system that can identify lawfully admitted
nonimmigrants who overstay their visas.
The Administration is generally supportive of this
provision's concept, which would allow us to more systematically
41
track nonimmigrant visa overstayers. We do not, however, believe
that a two year statutory deadline is appropriate or feasible.
INS is already reviewing new ways to identify overstayers, and it
would be important to pilot test and evaluate some of these
concepts before implementing a new automated entry and exit
control system. We are prepared to brief the Committee on the
Administration's plans for strengthening enforcement against
illegal immigration by visa overstayers.
Sec. 177 provides that a carrier, in consideration for
bringing an alien transitting the U.S. without a visa, must
agree to indemnify the U.S. for any costs of detaining or
removing such an alien if the alien is refused admission to the
U.S., fails to continue his or her journey to a foreign country
within the time prescribed, or is refused admission by the
foreign country to which the alien is travelling while
transitting the U.S.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 178 authorizes the Attorney General to provide
information furnished under the Legalization and Special
Agricultural Worker programs when such information is requested
in writing by a duly recognized law enforcement entity in
connection with a criminal investigation or prosecution, or to an
official coroner for purposes of affirmatively identifying a
deceased individual (whether or not related to a crime). It
allows the Attorney General, in her discretion, to furnish the
information in the same manner and circumstances as census
information may be disclosed by the Secretary of Commerce. The
criminal penalties for violation of these provisions is retained.
We agree that confidentiality provisions should be modified
because it is very difficult to obtain crucial information
contained in these files, such as fingerprints and photographs,
when the alien becomes a subject of a criminal investigation.
However, we support a waiver of the confidentiality provisions,
along the lines of S. 735, the Antiterrorism Amendments Act of
1995, the bipartisan antiterrorism bill which the U.S. Senate
passed in June of 1995, that is, only if a federal judge
authorizes disclosure of information to be used for
identification of an alien who has been killed or severely
incapacitated or for criminal law enforcement purposes against an
alien if the alleged criminal activity occurred after the
legalization or SAW application was filed and such activity poses
either an immediate risk to life or to national security or would
be prosecutable as an aggravated felony.
Sec. 179 clarifies that the Attorney General is not required
to rescind the lawful permanent resident status of a deportable
alien separate and apart from the deportation proceeding under
42
section 242 or 242A. This provision will allow INS to place a
lawful permanent resident who has become deportable into
deportation proceedings immediately.
This provision is identical to the Administration's
proposal, and we support it.
Sec. 180 prohibits governmental entities from restricting
availability of information related to the immigration status of
an alien in the U.S.
We have a number of concerns with this provision as drafted.
In some instances the provision could raise troubling privacy and
due process issues. While information restrictions may have been
a problem in the 1970s or 1980s, we know of no existing local or
state government policies on information availability which
burden the INS. We do not support this provision, but will work
with the Committee to explore appropriate alternatives.
Sec. 181 authorizes the Attorney General to accept,
administer and utilize services of volunteers to assist in
administering programs relating to naturalization, adjudication
at ports of entry, and removal of criminal aliens. Such
volunteers may not administer or score tests and may not
adjudicate.
This provision is similar to the Administration's proposal,
and we support it.
Sec. 182 authorizes the Attorney General to acquire and
utilize any federal equipment determined available for transfer
to the DOJ by any other Federal agency upon request of the
Attorney General in order to facilitate the detection,
interdiction and reduction of illegal immigration.
We support this provision.
Sec. 183 denies any court jurisdiction of any cause or claim
by or on behalf of any person asserting an interest under section
245A (regarding legalization applications) of the INA unless such
person in fact filed a complete application and application fee
to an authorized legalization officer of the INS but had the
application and fee refused by that officer.
This provision would affect several major class action
lawsuits that involve the legalization program where district
courts have granted relief to aliens who did not timely file for
legalization. We support this provision.
Sec. 184 prohibits any alien who seeks adjustment of status
as an employment-based immigrant and who is not in a lawful
nonimmigrant status and any alien who worked while unauthorized
43
to work or who has otherwise violated the terms of a nonimmigrant
visa from adjusting their status under section 245 (a).
Section 245 (c) (2) of the INA already provides that an alien
"who
continues in or accepts unauthorized employment prior to
filing an application for adjustment of status or who is in
unlawful immigration status on the date of filing the application
for adjustment of status or who has failed (other than through no
fault of his own or for technical reasons) to maintain
continuously a lawful status since entry into the United States"
may not apply for adjustment of status. Accordingly, we believe
the proposed amendment does not represent a significant addition
to current law and is unnecessary.
Subtitle B--Other Control Measures
Part 1--Parole Authority
Sec. 191 tightens parole authority by changing the
acceptable reasons from "emergent reasons" and "reasons deemed
strictly in the public interest" to "urgent humanitarian reasons
or significant public benefit," and by requiring a case-by-case
determination.
We oppose this provision as an inappropriate restriction⁴ on
the Attorney General's parole authority. The case-by-case
determination requirement would dangerously limit the Attorney
General's ability to deal with emergency situations involving
numerous aliens. Current law provides the Attorney General with
appropriate, needed flexibility to respond to compelling
immigration situations.
Sec. 192 reduces the world-wide level of family-sponsored
immigrants in a fiscal year by the number of parolees who were
paroled in the two previous fiscal years and who remained in the
U.S. for more than a year.
We oppose this provision because it may have a significant
adverse effect on family reunification and result in longer
waiting times for admission of relatives of U.S. citizens and
legal permanent residents. Humanitarian parole and family-
sponsored immigration advance two vital, but distinct, national
interests. This section blurs the distinction between the two
and hinders both. It could also affect our ability to carry out
the Cuban Migration agreements.
Part 2--Asylum
Pursuant to a presidential directive, the DOJ dramatically
restructured the asylum process in January 1994. In addition,
the Administration secured and Congress provided the resources
necessary to do the job in the Violent Crime Control and Law
44
Enforcement Act of 1994 which more than doubled the authorized
number of INS asylum officers from 150 to 325, and increased the
number of Immigration Judges from 116 to 179. In FY 1996 we
expect to have approximately 200 immigration judges. The new
asylum process allows the INS to quickly identify and promptly
grant valid claims, and to refer all other cases to immigration
court for deportation proceedings; to grant work authorization
only to applicants who are granted asylum or when an applicant's
case is not adjudicated within 180 days; and to streamline
procedures to help asylum officers keep current with incoming
applications.
To date, these reforms have had tremendous positive results.
New asylum claims filed with the INS dropped 57 percent. Asylum
officers completed 126,000 cases in calendar year (CY) 1995
compared to 61,000 in CY 1994. Immigration Judges completed
40,000 asylum cases in CY 1995 compared to 17,000 in CY 1994-an
increase of 135 percent. More than 98 percent of the new non-
American Baptist Churches V. Thornburgh cases were completed by
Immigration Judges within 180 days from the initial INS receipt
of the asylum application. We have streamlined procedures
without reducing the quality of our asylum decisions. INS has
instituted quality assurance procedures to monitor the new
system. Approval rates have not changed significantly.
In addition to restructuring the asylum process, the INS has
stepped up its fraud investigation of preparers of spurious
asylum claims. As noted earlier, investigations have resulted in
indictments of preparers in Los Angeles, San Francisco, New York,
and Arlington, VA. In addition, INS has requested additional
funding in FY 1996 for detention and deportation of failed asylum
seekers.
Sec. 193 precludes an alien who used any fraudulent document
to enter the U.S. or destroyed his or her document en route to
the U.S. from applying for asylum unless the alien had to present
such document to depart from a country in which he or she had a
credible fear of persecution and travelled directly from such
country to the U.S. The alien shall be referred to an asylum
officer for interview to determine credible fear. If the asylum
officer determines that the alien does not have a credible fear
of persecution, the alien may be specially excluded and deported.
The Attorney General shall provide for prompt supervisory review
of the determination that the alien does not have a credible
fear. If the asylum officer determines that the alien does have
a credible fear of persecution, the alien shall be taken before
an immigration judge for an exclusion hearing.
Pursuant to this section, "credible fear" means there is a
substantial likelihood that the statements made by the alien in
support of his or her claim are true, and there is a significant
possibility in light of such statements and of country
45
conditions, that the alien could establish eligibility as a
refugee.
We do not support this provision. We believe that the
provisions for special exclusion in S. 754 are sufficient to
allow us to process efficiently the asylum applications of
excludable aliens. Absent smuggling or an extraordinary
migration situation, we can handle asylum applications for
excludable aliens under our regular procedures.
Furthermore, the concept of "presentation" of fraudulent
documents pursuant to "direct departure" from a country in which
the alien has a credible fear of persecution is problematic. The
"presentation" of such documents is not necessary for departure,
and transit countries may refuse to accept the return of aliens
who did not travel directly to the U.S. In addition, the concept
of "direct departure" is unnecessary and confusing. Section
208 (3) (5) (B) adequately addresses asylum shopping by an alien
already present in a country in which she or he has no fear of
persecution. Adding "direct departure" may cause needless
litigation and confusion in the context of connecting air
flights. It may also disadvantage individuals fleeing
persecution from countries which lack direct flights to the
United States such as countries in Africa.
Sec. 194 requires that an application for asylum must be
filed within 30 days of entry unless the alien who seeks to apply
affirmatively shows that the claim is based on circumstances that
arose after the alien's entry and that the claim is filed up to
thirty days after the alien knew or reasonably should have known
of such circumstances.
We strongly oppose this provision as a matter of policy. To
return a refugee to a country where he or she would face a threat
to life or freedom simply because the refugee failed to make a
timely request for protection violates a fundamental duty.
Failure to file a timely asylum claim does not relieve the U.S.
of its non-refoulement obligation under the Refugee Protocol. In
addition, it will require the INS to divert resources from
adjudication of the merits of asylum applications to adjudication
of the timeliness of filing. Since eligibility for withholding
of deportation is not affected by this section, the Attorney
General must still adjudicate the merits of a refugee claim. Our
proposed special exclusion proceedings, limitations on judicial
review, and standard of judicial review, along with the asylum
regulations we have implemented give the INS sufficient
mechanisms for processing asylum applications and preventing
asylum abuse. We do not believe that this provision is needed.
Sec. 195 limits the employment authorization of an asylum
applicant. The section provides that the Attorney General may
deny any application for, or suspend or place conditions on any
46
grant of, employment authorization of anyone who makes an
application for asylum.
We do not support this provision. Section 208 (e), which was
added by section 130004 the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. 103-322, September 13, 1994, is
sufficient to address this concern. The provision in S. 1394
would terminate employment authorization in some instances, such
as when a nonimmigrant who already has employment authorization
applies for asylum. Current INS procedure to withhold employment
authorization for 180 days while an application for asylum is
pending review has reduced the incidence of asylum abuse.
Sec. 196 authorizes the Attorney General, for two years, in
order to reduce the asylum backlog, to expend out of funds such
amounts as may be necessary for leasing or acquiring property.
We have no objection to this provision as it relates to the
leasing or acquiring of property for security and detention
space. However, with regard to office space, this provision
should be modified to require the Attorney General to lease space
pursuant to the Federal Property and Administrative Services Act
of 1949. Under the 1949 Act the Attorney General could request a
delegation of the authority to lease office space from the
is
General Services Administration's Administrator.
This section also authorizes the Attorney General to employ
temporarily up to 300 persons, who by reason of retirement on or
before January 1, 1993, are receiving annuities or retired or
retainer pay as retired officers of regular components of the
uniformed services.
This provision is unnecessary. Under the Federal Employees
Pay Comparability Act of 1990 (5 U.S.C. §§ 8344 (i) and 8468 (f)),
such reemployment can now be handled administratively.
Nevertheless, if this provision remains in S. 1394, we recommend
that a parallel provision be added to authorize the Secretary of
State to increase the number of personnel who address the asylum
backlog.
Part 3--Cuban Adjustment Act
Sec. 197 repeals the Cuban Adjustment Act, P.L. 89-732
(1966) The Act provides for adjustment of status, in the
discretion of the Attorney General, of any national or citizen of
Cuba who has been inspected and admitted or paroled into the U.S.
and has resided here for one year. This section repeals the Act
except as to individuals who will be paroled into the U.S.
pursuant to the Cuban Migration Agreement of 1995.
We oppose repeal of the Cuban Adjustment Act. Our long term
goal, to which we are absolutely committed, is to bring democracy
47
to Cuba. Until Cuba has a democratic government, we need
flexibility to respond appropriately to changing conditions in
Cuba. We look forward to the time when Cuban migration to the
U.S. is normalized and on par with migration from other
countries. We took major steps towards normalizing migration
from Cuba to the U.S. when we concluded the Cuban Migration
Agreements in September 1994 and May 1995.
While we are pleased that this section extends application
of the Act to individuals who will be paroled into the U.S.
pursuant to the Cuban Migration Agreement of 1995, we are
concerned that this section fails to mention the Cuban Migration
Agreement signed on September 9, 1994, the announcements by the
President on October 14, 1994, and by the Attorney General on
December 2, 1994, and thus continues to lack a means to adjust
the immigration status of individuals who will be or have been
admitted, inspected, or paroled from Havana or from the
safehavens in Guantanamo and Panama into the U.S.
Sec. 197 also provides that the number of those obtaining
lawful permanent resident status after being paroled into the
U.S. will be counted as family-sponsored immigrants for purposes
of the world-wide and per-country ceiling.
We oppose this provision because it may have a significant
adverse effect on family reunification and result in longer
waiting times for admission of relatives of U.S. citizens and
legal permanent residents from countries other than Cuba.
Title II--FINANCIAL RESPONSIBILITY
PART 1--RECEIPT OF CERTAIN PUBLIC BENEFITS
The Administration generally supports the denial of means-
tested benefits to undocumented immigrants. The only exceptions
should include matters of public health and safety such as
emergency medical services, immunization and temporary disaster
relief assistance; every child's right to full participation in
public elementary and secondary education, including pre-school
and school lunch programs; and benefits earned as a result of
U.S. military service. In so doing, care must be taken not to
limit or deny benefits or services to eligible individuals or in
instances where denial does not serve the national interest. The
Administration generally supports tightening sponsorship and
eligibility rules for non-citizens and requiring sponsors of
legal immigrants to bear greater responsibility through legally
enforceable sponsorship agreements for those whom they encourage
to enter the U.S. The Administration, however, opposes
application of new eligibility and deeming provisions to current
recipients, particularly with regard to the disabled who are
exempted under current law, to immigrants who have become U.S.
citizens, and to lawful immigrants seeking to participate in
48
student financial aid programs. The Administration also opposes
the application of deeming provisions to Medicaid and other
programs where deeming would adversely affect public health and
welfare.
Section 201 defines "eligible alien" as an alien: lawfully
admitted for permanent residence; granted refugee or asylee
status; whose deportation has been withheld under section 243 (h)
of the Immigration and Nationality Act; or who has been granted
parole for a period of 1 year or more. All other aliens would be
'ineligible aliens' and would not be eligible for needs-based
benefits under any Federal, state, or local program, except: (1)
emergency medical services under title XIX of the Social Security
Act; (2) short-term emergency disaster relief; (3) assistance or
benefits under the National School Lunch Act; (4) assistance or
benefits under the Child Nutrition Act of 1966; and (5) public
health assistance for immunizations and for testing and treatment
for communicable diseases. Ineligible aliens would be ineligible
to receive any grant, contract, loan, professional license, or
commercial license provided or funded by any Federal, state, or
local government. Only aliens eligible to work would be able to
receive unemployment benefits.
This section also requires the Secretary of the Department
of Housing and Urban Development (HUD), within 90 days of the
date of enactment, to submit a report to the Committees on
Banking and Committees on the Judiciary of the House and Senate
describing how HUD is enforcing section 214 of Housing &
Community Development Act of 1980, including statistics of
individuals denied assistance.
This section also limits benefits under the Social Security
Act to U.S. citizens and eligible aliens who have been granted
work authorization and then only those benefits attributable to
the authorized employment. Ineligible aliens may not be
reimbursed amounts paid into SSA accounts.
While we support the goal of establishing a uniform
definition of alien eligibility, we oppose section 201 as
drafted. The provision would affect many diverse Federal, state,
and local programs; represents a new mandate to many state and
local governments; and targets current immigrant beneficiaries,
some of whom are residing lawfully in the U.S. with the knowledge
and permission of the INS.
We encourage you to examine the definition of "qualified"
alien as the Administration proposed in its welfare reform bill,
introduced in 1994, the "Work and Responsibility Act of 1994" and
in the Administration's Balanced Budget proposal.
We recommend this definition of eligibility apply only to
the four primary needs-based programs--AFDC, SSI, and Medicaid.
49
The Food Stamps Act already defines an eligible alien. We would
also allow state and local programs of cash and medical general
assistance to utilize the same alien eligibility criteria.
Finally, we support the provision in section 201 that would
retain the current law provision for illegal aliens to receive
only emergency medical services under Medicaid.
The Administration's approach would avoid a number of
problems that would result under S. 1394. For example, the
eligibility provision in S. 1394 might be read to deny needs-
based, education-related services and assistance paid for with
Federal, State, or local funds--except for services under the
National School Lunch Act--to undocumented alien children. The
principal reasons given by the Supreme Court in Plyler V. Doe for
not permitting States to do SO remain powerful. In addition,
students who are not undocumented aliens could be stigmatized
based on name or appearance, and parents, fearful of their
children's well-being, might keep them at home. These results
are in direct conflict with the Administration's policy of
encouraging better education for all students and are likely to
adversely affect, and be divisive within, our communities.
Moreover, instead of making progress towards becoming productive,
responsible adults, uneducated children are vastly more likely to
wind up on the streets, possibly engaged in unlawful behavior.
Finally, schools and school systems are ill-suited to make
determinations about the citizenship status of students and
should not be forced to bear the uncompensated expense and burden
of doing so. We urge that this section be revised SO that it
does not call into question the full participation of any child
in the U.S. in public elementary and secondary education,
including participation in pre-school and school lunch programs.
In addition, the definition of an "eligible alien" in
section 201 (d) could be read to exclude certain postsecondary
students currently eligible for student assistance under title IV
of the Higher Education Act of 1965; the negative consequences of
varying eligibility requirements on these students and their
educational institutions must be considered.
This provision also should be modified to clarify that it
has no effect on the applicability of section 214 of the Housing
and Community Development Act of 1980 to HUD programs, and that
it does not apply to assistance provided by HUD. Without such
clarification, this provision would impose a great burden on
States and local governments that administer HUD mortgage
programs, Federal Housing Administration contract programs, and
Community Development Block Grants to identify noncitizens who
may indirectly benefit from these non-direct assistance programs.
Furthermore, it would jeopardize progress made and cooperation by
HUD, INS, housing authorities, and multifamily project owners to
smoothly implement section 214 of the Housing and Community
Development Act of 1980.
50
Furthermore, the definition of "eligible alien" does not
include Cuban and Haitian entrants as defined under section 501
of the Refugee Education and Assistance Act of 1980. If Cuban
and Haitian entrants are not included in the list of eligible
aliens, they no longer would be eligible for assistance and
services under the refugee program. The definition of
"ineligible alien", by its silence, includes U.S. nationals, thus
making natives of American Samoa ineligible for benefits under
this section.
The definition of "eligible alien" also fails to include
aliens lawfully admitted under temporary visas (e.g., B for
business visitors, E for treaty traders and investors, L for
intracompany transferees, and H-1B for professionals) and aliens
outside the United States. Under section 201 ineligible aliens
would be unable to receive, inter alia, contracts, professional
licenses, or commercial licenses provided or funded by any
federal, state, or local government. One concern is that by
prohibiting the award of federal contracts and the granting of
federal licenses, this section would preclude local acquisition
by diplomatic posts and military bases in foreign countries to
the extent that such acquisitions involve contracts with foreign
individuals. In addition, section 201 (a) (1), which would make
ineligible aliens ineligible for government contracts, would be
inconsistent with our obligations under the World Trade
Organization's Agreement on Government Procurement.
Section 201 may violate NAFTA provisions on services and
investment (chapters 11 and 12) and potentially violate our
obligations under the GATS agreement and bilateral investment
treaties if the class of ineligible aliens is not specifically
narrowed. Furthermore, NAFTA parties have agreed to eliminate
citizenship and permanent residency requirements for professional
licenses, and section 201 would be in violation of those
obligations.
This section appears to impose a duty on agencies to make
new eligibility determinations for each individual served. There ?
are many programs for which it would not be cost-effective, or in
some cases feasible, to determine individual eligibility. These
programs include soup kitchens, food banks, and public health
programs such as community and migrant health centers. The
Administration's approach which would apply this definition of
eligibility to the four major federal entitlement programs would
avoid these burdensome effects.
In addition, section 201 (a) (3) requires agencies
administering public assistance programs to notify individually
or by public notices all ineligible aliens of the termination of
their benefits. While we believe that it is important to notify
individuals of their benefit determination, this requirement
would place a significant burden on smaller benefit programs such
51
as those mentioned above. The effects of these requirements on
smaller programs should be considered.
Section 201 (c) has many undesirable effects on the operation
of the Social Security program. The payment restrictions in this
provision violate the terms of the bilateral Social Security
totalization agreements with 17 foreign countries, including
Canada and virtually all of Western Europe. Also, the U.S. has
treaties with other countries that require the U.S. to pay Social
Security benefits to foreign treaty nationals on the same basis
as U.S. citizens. Legislation abrogating these agreements and
treaties would presumably lead to retaliatory restrictions on the
payment of such benefits by other countries to U.S. citizens.
Furthermore, this provision would deny Social Security benefits
as well as Social Security tax refunds to aliens legally admitted
on a temporary basis to work in the U.S.
The payment restrictions are also inconsistent with current
provisions of law that permit payment of benefits to aliens
outside the U.S. if they are citizens of a country whose social
insurance system does the same for U.S. citizens. About 65
countries meet this requirement.
It is not clear whether the payment restrictions would be
prospective or retrospective. If the Social Security benefits
payable to current or future beneficiaries should not reflect
credit for past periods of unauthorized work, INS would have to
provide SSA with the necessary information about the
beneficiary's work authorization history. This is probably not
feasible because much of the necessary INS information is stored
in paper format in Federal Records Centers.
Although it would be feasible for SSA to suspend Social
Security benefits payable to a person who is currently in this
country illegally, assuming appropriate evidence were obtained,
such an approach would not impose any sanctions on legally
admitted aliens who received Social Security credit for past
periods of unauthorized work.
Also the provision does not address the complex issue of
Social Security benefit eligibility for citizens who are
dependents or survivors of ineligible aliens, or ineligible
aliens who are dependents or survivors of U.S. citizens.
The Administration would support a provision that would
restrict the payment of Social Security benefits to aliens who
are in the United States illegally if the provision were drafted
in a manner that did not compromise existing international
arrangements concerning payment of Social Security benefits. We
look forward to working with the Committee to address these
concerns.
52
We also would seek to ensure that programs of assistance to
refugees under Title IV of the Social Security Act be designed to
promote early economic self-sufficiency and social adjustment and
to meet the specific needs of refugees. B Our concern is that
newly arriving refugees, for whom the federal government has a
special responsibility, should be provided with services and work
and training participation requirements that are adapted to their
situation.
Sec. 202 defines "public charge" for purposes of deportation
as the receipt of certain benefits for an aggregate of more than
12 months in the first five years after entry as an immigrant or,
in the case of an individual who entered as a nonimmigrant, the
first five years after adjustment to permanent resident status.
Such benefits are limited to one or more of the following
programs: AFDC, SSI, Medicaid, Food Stamps, state general
assistance, or any other program of assistance funded in whole or
in part by the Federal government for which eligibility is based
on need (except the exempted programs noted in section 201).
This section also provides that any alien who during the
public charge period becomes a public charge, regardless of when
the cause arose, is deportable. This section exempts from the
public charge definition refugees and asylees. Further, if the
cause of the alien's becoming a public charge arose after entry
as an immigrant or, in the case of a nonimmigrant, after
adjustment to permanent resident status, and was a physical
illness or injury that kept the alien from working or a mental
disability that required continuous hospitalization, then the
alien would be exempt. While this section now excludes refugees
and asylees from the public charge provision, it would place
Cuban and Haitian entrants at risk of deportation if they
received benefits from one or more of the listed programs for
more than an aggregate of 12 months. We strongly object to the
effect of this provision and believe Cuban and Haitian entrants
should be excluded from the public charge provision. We believe
this would be consistent with the Administration's position on
providing assistance to Cuban parolees to alleviate any State or
local impact.
This section also requires the Attorney General to review
applications for benefits under section 216, 245 or chapter 2 of
Title III of the INA to determine whether the exception to the
definition of public charge applies. If the exception does not
apply, the Attorney General shall institute deportation
proceedings unless she exercises discretion to withhold or
suspend deportation.
The legislation would require increased administrative
efforts to ascertain (1) whether an alien who had received
benefits for more than an aggregate of 12 months during the
public charge period was receiving such benefits due to a "pre-
53
existing condition,' or one that arose since entry or since
adjustment of status; (2) whether a physical illness or injury
was so serious that the alien could not work at any job; or (3)
whether the alien's mental disability required continuous
hospitalization. Since this section would create a number of
administrative and legal complexities as drafted, we do not
endorse these provisions without further clarification or
amendment.
Sec. 203 sets forth the requirements for a sponsor's
affidavit of support. It requires that the affidavit of support
be executed as a contract that is enforceable against the sponsor
by the sponsored individual, the Federal government, a state,
district, territory or possession or any subdivision thereof,
providing any benefits to sponsored eligible aliens. In the
affidavit, the sponsor must agree to financially support the
sponsored individual until the sponsored individual has worked in
the U.S. for 40 qualifying quarters. A sponsor must be age 18 or
over, a citizen or, -legal permanent resident, domiciled in any of
the several states of the U.S., the District of Columbia, or at
territory or possession of the U.S. and demonstrate an ability to
maintain an annual income of at least 125% poverty line for him
or herself and the sponsored individual.
The governmental entities are authorized to seek
reimbursement from sponsors of aliens who have received benefits,
and to bring suit against sponsors that do not reimburse the
relevant government agencies. No cause of action could be
brought against sponsors after 10 years from an alien's last
receipt of benefits. The sponsor is required to notify the
Federal, state, and local governments of any change of the
sponsor's address.
The Administration strongly supports making the current
affidavit of support legally binding. However, we oppose
requiring the affidavit to be effective for 40 qualifying
quarters, particularly as this requirement interacts with the
deeming provisions in section 204. We note that these two
sections would require a sponsored immigrant to remain subject to
deeming provisions for a minimum of 10 years, or potentially 5 to
7 years after becoming a citizen.
As more thoroughly described in our comments on section 204,
the time period of the legally binding affidavit should specify a
period of years but not extend beyond the time the immigrant
becomes a U.S. citizen. The Administration strongly opposes such
a provision which would treat naturalized citizens as second
class citizens.
In addition, the definition of qualifying quarter is
unworkable. Section 203 (f) (3) (A) defines "qualifying quarter" as
a -month period in which the sponsored individual has earned the
54
minimum amount necessary for the period to count as a Social
Security quarter of coverage. Since the implementation of annual
wage reporting in 1978, SSA no longer maintains quarterly records
of earnings and thus could not determine the amount earned in a
calendar quarter. Quarters of coverage are now based on annual
earnings. We recommend changing the definition of quarters of
coverage to be consistent with the Social Security Act. Also,
individuals may become entitled to disability insurance benefits
with less than 40 quarters of work. The bill should clarify that
an immigrant that otherwise qualifies for title II disability
insurance would be eligible for benefits under title II and would
be exempt from the deeming requirements for purposes of
disability benefits under title XVI if he or she became disabled
after entry.
Section 203 should also clarify that a sponsor would not be
liable for support during the time the sponsor may be bankrupt or
in need of assistance. This could easily be accomplished by
stipulating that a sponsor who received means-tested assistance
would not be liable for assistance received by the sponsored
alien during the time period the sponsor received assistance.
Sec 203 (b) should provide 180 days--not 90 days--to develop
a new affidavit of support in light of the complex interagency
consultations called for by the provision. 1 We suggest that the
Secretary of Treasury and the Commissioner of Social Security be
included in the list of those responsible for formulating the new
affidavit of support since determining which immigrants have
worked for 40 qualifying quarters would potentially involve
activities managed by those agencies.
Furthermore, it should be clarified that notifications of
changes of address should be made to the Attorney General and
that the Attorney General--not the Commissioner of Social
Security--shall promulgate regulations to carry out actions to
obtain reimbursement for any federal or state assistance received
by the sponsored individual.
Sec. 203 (e) would allow an action to enforce the affidavit
of support to be brought against the sponsor in any Federal or
State court, by a sponsored individual with respect to financial
support, or by a Federal, state, local agency with respect to
reimbursement. This section also would require that no state
court may decline jurisdiction over any action brought against a
sponsor for reimbursement of the costs of a benefit if the
sponsored individual received assistance while residing in the
state.
We do not object to this provision.
Sec. 204 requires that in determining the eligibility for
and amount of benefits of an individual (whether a citizen or
55
national of the U.S. or an alien) under any Federal program of
assistance, or any program of assistance funded in whole or in
part by the federal government for which eligibility is based on
need, the entire amount of income and resources of the sponsor
and sponsor's spouse would be presumed to be available to the
individual. This section may also apply to any state or local
program of assistance for which eligibility is based on need, or
any need-based program of assistance administered by a state or
local government.
This "deeming" period would continue for the period for
which the sponsor has agreed in the affidavit or for five years
from the date the alien was first lawfully in the U.S., whichever
period is longer. Thus, immigrants that signed the new affidavit
of support under section 203 would be deemed for a minimum of 10
years in order to meet the requirement of working 40 qualifying
quarters. This requirement may lead to deeming even after the
immigrant had become a naturalized citizen, a policy we oppose on
constitutional and other grounds.
We have serious concerns about section 203's
constitutionality as applied to naturalized citizens. So
applied, the deeming provision would operate to deny, or reduce
eligibility for, a variety of benefits including student
financial assistance and welfare benefits to certain U.S.
citizens because they were born outside the country. This
appears to be an unprecedented result. Current federal sponsor-
to-alien deeming provisions under various benefits programs do
not apply after naturalization, (see, e.g., 42 U.S.C. § 615
(AFDC) ; 7 U.S.C. 2014 (i) (Food Stamps). As a matter of policy,
we think it would be a mistake to begin now to relegate
naturalized citizens -- who have demonstrated their commitment to
our country by undergoing the naturalization process - - to a kind
of second-class status.
This deeming provision, as applied to citizens, would
contravene the basic equal protection tenet that "the rights of
citizenship of the native born and of the naturalized person are
of the same dignity and are coextensive." Schneider V. Rusk, 377
U.S. 163, 165 (1964). To the same effect, the provision might be
viewed as a classification based on national origin; among
citizens otherwise eligible for government assistance, the class
excluded by operation of the deeming provision is limited to
those born outside the U.S. A classification based on national
origin, of course, is subject to strict scrutiny under equal
protection review, see Korematsu V. United States, 323 U.S. 214
(1944), and it is unlikely that the deeming provision could be
justified under this standard. See Barannikov V. Town of
Greenwich, 643 A.2d 251, 265 (Conn. 1994) (invalidating state
deeming provision under strict scrutiny) ; El Souri V. Department
of Social Services, 414 N.W.2d 679, 683 (Mich. 1987) (same).
56
Also, a number of legal immigrant children would be
adversely affected by basing the deeming period on the
requirement to work 40 qualifying quarters. Sponsored children
that we have permitted to reside permanently in the U.S. would be
ineligible for most assistance due to deeming until they had
worked for 40 qualifying quarters. Since we do not expect
children to work, this particular restriction is unreasonable
when applied to immigrant children and would not be in the
national interest.
While we support the goal of making sponsors more
responsible for the immigrants they sponsor, we strongly oppose
section 204 as drafted. This section would affect many current
immigrant beneficiaries; apply to immigrants that have become
naturalized citizens if they have signed the new affidavit of
support; repeal the current law exemption from deeming for
sponsored immigrants who become disabled after entry; affect many
diverse Federal programs--including Medicaid and student
financial assistance for post secondary education; create new
administrative complexities and requirements; and change the
current deeming formula to include 100 percent of a sponsor's
income and resources. By attributing 100 percent of a sponsor's
income and resources to the sponsored immigrant, section 204 does
not take into account the needs of the sponsor and his or her
family and is inconsistent with current practice in the major'
entitlement programs. Legal challenges may also arise where the
spouse was not a signatory to the affidavit or the spouse is
separated from the sponsor.
The Administration supports strengthening deeming, and we
would like to work with the Committee to establish a reasonable
deeming policy that addresses the concerns identified above. The
Administration is opposed to unilaterally applying the new
deeming and eligibility provisions to current recipients,
including the disabled exempted under current law. In addition,
we oppose applying deeming provisions to the Medicaid and student
financial assistance programs. Access to student assistance by
legal immigrants assists them in obtaining a postsecondary
education that can provide them a productive and self-sufficient
life in the economic mainstream. We support providing state and
local governments with the authority to implement the same
deeming rules under their cash general assistance programs as the
Federal government uses in its cash welfare programs.
Sec. 205 authorizes state and local governments to prohibit
or limit assistance to aliens and to distinguish among classes of
aliens in providing general public assistance SO long as the
restrictions are no more restrictive than those of similar
Federal programs.
We support this provision.
57
Sec. 206 denies eligibility for the earned income tax credit
to individuals who are not, for the entire tax year, U.S.
citizens or lawful permanent resident aliens. It amends section
32 (c) (1) of the Internal Revenue Code of 1986 (relating to
individuals eligible to claim the earned income tax credit) by
adding that the term "eligible individual" does not include any
individual who does not include on his or her tax return the
individual's taxpayer identification number and their spouse's
taxpayer identification number (if married). The section further
provides that for purposes of the earned income tax credit a
social security number issued to an individual pursuant to clause
(II) (or that portion of clause (III) that relates to clause
(II)) of section 205 (c) (2) (B) (i) of the Social Security Act,
i.e., to qualify for federal benefits, would not satisfy the
taxpayer identification number reporting requirement. The
section also authorizes IRS to use simplified procedures if a
taxpayer claiming the earned income tax credit omits a correct
taxpayer identification number.
We support this provision. The President's FY 1996 Budget
contained a similar provision.
Sec. 207 requires that whoever falsely makes, forges,
counterfeits, mutilates, or alters the seal of any U.S.
department or agency, or any copy thereof; knowingly uses,
affixes, or impresses such altered seal or copy to or upon any
instrument; or with fraudulent intent possesses, sells, offers to
sell, furnishes, offers to furnish, gives away, offers to give
away, transports, offers to transport, imports, or offers to
import any such seal or copy, knowing it to have been falsely
made, shall be fined under this title, or imprisoned for up to 5
years, or both. If any of the above was done with the intent or
effect of facilitating an unlawful alien's application for, or
receipt of a federal benefit, the penalties which may be imposed
for each offense shall be double the maximum fine, and three
times the maximum imprisonment, or both. Each instance of
forgery, counterfeiting, mutilation, or alteration shall
constitute a separate offense.
We support this provision.
Sec. 208 permits a State that is certified by the Attorney
General as having high illegal immigration to establish and
operate a program for the placement of anti-fraud investigators
in State, county, and private hospitals to verify the immigration
status and income eligibility of applicants for medical
assistance under the State plan prior to the furnishing of
medical assistance.
We note that current law would permit a State to operate
such a program, and thus the provision is unnecessary.
58
deportations.
The Administration does not support this bill's imposing a
mandatory land border user fee upon states and localities rather
than granting states and localities the authority to choose
whether or not to charge such a fee. As our proposal last year
indicated, policy in this area must provide for greater local
choice and flexibility. Unlike S. 1394, the Administration's
proposal last year provided for a "local option" which allows
each state to determine at which, if any, ports the fee is to be
collected. A State that exercises this local option may
establish a Border Service Council for each port to develop
priorities for use of the fees collected, for submission to the
INS Commissioner. The INS Commissioner must consider these
priorities in funding port services. Funds remaining after
payment of the costs of port services are to be granted to the
Councils to spend on port-related enhancements. The Commissioner
will allocate enhancement funds for ports that do not set up a
Border Service Council. The Administration's proposal also
supported a frequent crosser discount to facilitate trade and
commerce.
Section 212 authorizes additional commuter border crossing
fees pilot projects, one on the northern land border and another
one on the southern land border.
The Administration proposal provides for projects along the
southern and northern land borders and does not limit the number
of pilot projects that may be established. We recommend that S.
1394 adopt the Administration proposal.
Sec. 213 removes the current exemption from payment of the
$6 immigration user fee for cruise ship passengers.
This provision is similar to the Administration's proposal,
and we support it.
TITLE III - IMMIGRANTS
Subtitle A --Changes in Immigrant Classifications
The legal immigrant and nonimmigrant visa systems must serve
our national principles, goals and priorities. One principle
that legal immigration should serve is family reunification,
especially for closest family members. The Administration urges
the Committee to moderately reduce the overall level of legal
immigration while providing stronger support for pro-family
principles.
We affirm the United States' proud heritage of providing
humanitarian protection to those persecuted and fearing for their
life in their own country.
60
Reducing existing backlogs of family reunification
immigrants who are waiting for visas, with priority to close
family members of U.S. citizens, is of fundamental importance.
These U.S. citizens have submitted petitions and paid fees to the
U.S. to allow their family members to immigrate, and the federal
government approved these petitions. In past decades, while
others jumped ahead of the line by entering the U.S. illegally,
these U.S. citizens, who have applied on behalf of their family
members, have "played by the rules" and have chosen to wait, in
some cases for many years, in order to be legally reunited with
their family members.
Our employment-based immigration policy must support the
needs of both the U.S. workforce and employers. It must provide
real incentives for business to prepare American workers for the
high skilled jobs and high performance workplaces of the future
while at the same time providing business a safety valve of
access to foreign labor markets to meet skill demands that the
U.S. workforce cannot supply in sufficient quantity or with
sufficient speed.
The backbone of this country's edge in global
competitiveness is the strength of our university, research, and
technology communities. Therefore, in reforming employment-based
immigration, the Administration will continue to work with
Congress to ensure that the needs of employers who genuinely are
unable to find U.S. workers to fill job openings are addressed.
Finally, we support a periodic review of the nation's
immigration system to maintain flexibility and responsiveness in
the system.
Sec. 301 narrows the "immediate relatives" classification by
limiting the eligibility of parents of U.S. citizens to
immigrate. This section defines a "qualifying parent" as a
parent who is at least 65 years of age and the majority of whose
sons and daughters normally reside in the U.S. as nationals or
lawful permanent residents. This section further conditions
admission of these parents on a showing that the son or daughter
has purchased for their parent a health insurance policy,
including long-term care.
The Administration believes that the value of family
reunification to our communities and nation relies on more
complete family units than this bill contemplates. It includes
U.S. citizens' parents. In many U.S. citizen families, immigrant
parents can provide essential household support which promotes
economic well-being and mobility. Such reunified families often
make the difference between a family that needs public assistance
and one that is self-sufficient. Therefore, the Administration
opposes the health insurance mandate on parents and the
limitation of entry to parents who have a majority of children
61
who normally reside in the U.S. The Administration strongly
believes in protecting against the misuse of public assistance
programs, but it also seeks to strengthen families and provide
them with the means to become self-sufficient and productive.
Section 301 (b) of this bill would require each immigrant
parent of a U.S. citizen or the petitioning son or daughter to
obtain, prior to the immigrant's admission to the U.S., health
insurance that is at least comparable to Medicare parts A and B,
and long-term care insurance that is at least comparable to
Medicaid's long-term care benefits. The immigrant would be
required to demonstrate to consular officials and to the Attorney
General that he or she would maintain such coverage throughout
the period of residence in the U.S.
S. 1394 would require that the petitioning son or daughter
agree to provide such health insurance coverage as part of a
legally enforceable affidavit of support; establish civil
monetary penalties if the sponsor fails to provide the agreed
coverage; define judicial remedies available to enforce the
requirement; and allow an exemption from the requirement for
sponsors whose financial circumstances change such that providing
insurance would reduce the sponsor's total family income to below
the Federal poverty level.
The Administration believes this section would impose a
mandate upon purchasers of health insurance that, absent a
corresponding mandate that insurers offer such coverage on an
equitable basis, would set standards that are virtually
impossible to meet and, thereby, render this family reunification
category largely meaningless. Private health insurance policies
comparable to Medicare plus the long-term care benefits of
Medicaid, as required by this section, are often unavailable,
especially within a reasonable price range. Private long-term
care policies in particular generally contain far more limited
benefits than Medicaid, and thus cannot be considered comparable.
In addition, insurers often require medical examinations and
tests before they will offer individual acute care or long-term
care policies, and are unlikely to accept tests performed outside
the U.S. This section would require a demonstration of health
insurance coverage prior to entry into the U.S. This section
would also necessitate reliance upon State insurance departments
to determine the acceptability of individual policies, to monitor
and to enforce continued coverage, and to convey this information
to consular officials worldwide, with no additional resources
provided in this bill to fund this additional administrative
burden on the States.
The long-term care insurance requirement is especially
problematic. The long-term care insurance industry is in its
infancy. Availability, type and quality of benefits, consumer
62
safeguards, and regulation by State insurance departments all
vary widely. It is not known whether current premiums will
provide sufficient revenue to pay promised benefits many years in
the future.
In addition to our other concerns, we believe the insurance
mandate's costs would effectively allow only wealthy American
families to reunite with their immigrant parents. For everyone
but the wealthy, the required health insurance products would be
prohibitively expensive. Our preliminary estimates indicate
that, for parents age 65 and over, premiums for Medicare-
comparable acute care coverage plus Medicaid-comparable long-term
care coverage would average $9,000 or more. Immigration laws
should serve to strengthen U.S. citizen families. This section,
however unintentionally, erects an unnecessary barrier to U.S.
citizens being reunited with their parents.
Also, requiring the Department of State to establish how
many children an applicant parent may have, where those children
reside and their immigration status poses problems with respect
to access to proof. Consular officers have no way of verifying
the number of non-U.S. national children an applicant may have.
Sec. 302 allots no more than 85,000 visas to the spouses and
minor children of lawful permanent residents and eliminates or
greatly narrows the other family-sponsored preference
classifications in current law - - e.g., unmarried adult sons and
daughters of citizens (1st preference), married sons and
daughters of citizens (3rd preference), unmarried adult sons and
daughters of permanent residents (2B), and brothers and sisters
of adult citizens (4th preference).
The Administration supports retention of the current
preference for spouses and minor children of lawful permanent
residents. The Administration estimates that new demand for
spouses or children of lawful permanent residents will remain
about 85,000 per year for the next five or so years. We
recommend allocating 100,000 visas for spouses and children of
lawful permanent residents to accommodate anticipated demand and
provide any remaining visas (100,000 minus the estimated 85,000
per year) to help reduce more quickly the comparatively small
number of relatives in the second preference backlog who are not
sponsored by a legalized alien (roughly 20 percent of the current
second preference backlog).
The Administration also strongly supports retention of the
first and third preferences at current admission levels. This is
consistent with protecting the interests of U.S. citizens, and
can be accomplished within a framework that lowers the overall
level of legal immigration and reduces the second preference
backlog.
63
The Administration's underlying policy objective of a
moderate reduction in overall admission numbers, coupled with
granting highest priority to closest family members, supports the
suspension of any new applications for fourth preference category
admissions until subsequent review by Congress as contemplated
under section 315. During this period, the Administration
proposes to examine in greater detail this category and the
nature of its existing backlog to better evaluate its role in
national immigration policy. This examination would help guide
Congress in its subsequent review to determine whether future
immigration and economic trends allow room under the overall
ceiling for new fourth preference admissions consistent with the
framework, priorities and principles we have outlined.
For U.S. citizens, whose brothers and sisters have already
applied and are waiting in the backlog, we support and want to
reach agreement with Congress on an appropriate and equitable
grandfathering process that is consistent with our overall
framework, priorities and principles.
Reducing the backlog of family reunification immigrants who
are waiting for visas, particularly close family members of U.S.
citizens, is of fundamental importance in immigration law. These
U.S. citizens have submitted petitions and paid fees to the U.S.
to allow their close family members to immigrate, and the federal
government has approved these petitions. The U.S. citizens, who
have applied on behalf of their family members, have "played by
the rules" and have chosen to wait, in some cases nearly two
decades, in order to be legally reunited with their family.
Sec. 303 changes the employment-based preference
classifications, eliminating the unskilled worker category and
reorganizing the remaining employment-based preferences into two
categories: those subject to the labor market screening
requirements and those who are exempt. It eliminates the five
existing employment-based preference classifications and
substitutes the following classifications that do not require
labor market screening: aliens with extraordinary ability,
certain multinational executives and managers, investors, and
special immigrants. Outstanding professors and researchers,
professionals with advanced degrees, professionals with
baccalaureate degrees, and certain skilled workers with three
years experience would require labor market screening. This
section also specifies that these latter classifications would
face two additional requirements: first, they would be required
to pass an English language proficiency test; second, their
lawful permanent resident status would be "conditional" for two
years.
This section allocates 90,000 visas for employment-based
preferences which are to be allocated in the order listed above
with each successive category eligible only for the number of
64
Sec. 209 bars costs, attorney fees or expenses from being
awarded under the Equal Access to Justice Act (EAJA) in any civil
action brought by or on behalf of any individual who is not a
U.S. citizen or legal permanent resident.
We do not support this provision. Although there are some
problems related to litigation abuse and the EAJA as presently
formulated, these are not resolved by a blanket denial of access
to certain classes of aliens, most particularly refugees and
asylees.
Sec. 210 would require the Office of Refugee Resettlement to
allocate grants to ensure that each qualifying county shall
receive the same amount of assistance for each refugee and
entrant residing in the county as of the beginning of the fiscal
year who arrived in the United States not more than 60 months
prior.
The amendment's formula for the allocation of Targeted
Assistance (TA) funds is consistent with the Administration's
policy to limit the provision of Office of Refugee Resettlement
funded services to a refugee's first five years in the United
States. We support the exception for the Targeted Assistance
discretionary program. We note, however, that the amendment may
limit Congress' ability to set aside special TA funds for Cuban
and Haitian entrants which it has historically done through the
appropriations process.
Part 2--User Fees
Sec. 211 authorizes the collection of a $1 land border fee
for each individual entering the U.S. as a pedestrian or in a
noncommercial conveyance. The commercial conveyance fee shall be
set by the Attorney General in consultation with the Secretary of
State. The Attorney General shall establish frequent crosser
discounts and may contract with private and public sector
entities to collect the fee.
The section also provides that funds shall be deposited into
the Fee Account as offsetting receipts and remain available until
expended. The funds may be used to pay for inspection services
and related expenses. Unused funds may be used for Border
security, including hiring additional Border Patrol agents.
Revenues may be spent on providing inspection services and
maintaining inspection facilities; expanding, operating and
maintaining information systems for nonimmigrant control;
employing additional permanent and temporary inspectors; minor
construction costs, including commuter lanes; detecting
fraudulent documents; and administering the border fee. Excess
funds may be spent on additional border patrol, support and
equipment resources. Any additional excess funds may be spent on
59
visas not used by the previous category. The "professionals with
advanced degrees" and "professionals with baccalaureate degrees"
categories each inherit one half of the "fall down" from the
preceding categories that are exempt from labor certification
requirements. This "fall down" scheme does not apply to the
special immigrant category, which is limited to 5,000. This
section would also remove the existing authority for the Attorney
General to waive the requirement of a job offer for advanced
degree holders.
The Administration supports the exclusion of the unskilled
immigrant category from the employment-based immigration system
and the repeal of the diversity visa category of admission. We
also support the general structure of the employment-based
immigrant preferences contained in the bill. The bill generally
does not dictate admission ceilings for each of the preference
categories and thereby retains desirable flexibility to
accommodate future changes in demand. In this regard, we
question the necessity and value of allocating visa numbers
between the categories including "members of the professions
holding advanced degrees" and "professionals with baccalaureate
degrees. " The Administration also would eliminate the admission
ceiling of 6,000 visas for outstanding professors and
researchers.
The Administration is gratified that the Subcommittee added
back the admission category for "outstanding professors and
researchers, but notes that this category is now subject to the
bill's labor market screening mechanism, though it was previously
in an exempt preference category. The Administration has
expressed its support for retaining first preference treatment of
"outstanding professors and researchers" as under current law.
In adding the "outstanding professors and researchers" category
to the other categories listed in the bill as exempt from the
labor market screening requirements, the Administration would
give it second priority, immediately following the category of
"aliens with extraordinary ability, and ahead of "certain
multinational executives and managers." Consistent with the
position stated in the previous paragraph, the Administration
also would eliminate the admission ceiling of 6,000 visas for the
category.
The Administration also is concerned that the current
definition of the classification of "outstanding professors and
researchers" is restricted to employment at U.S. universities,
other institutions of higher learning, or a department, division,
or institute of a private U.S. employer. This narrow language
would not allow the National Institute of Health (NIH) and other
governmental agencies to utilize this classification for
recruiting truly outstanding foreign researchers to conduct
research at government labs, such as the NIH. The Administration
would prefer that "federal and non-profit research organizations"
65
be added to the list of eligible entities.
While the Administration preferred most of the changes in
minimum qualifications and experience required of employment-
based immigrants who would be subject to labor market screening
as contained in S. 1394 before it was amended in Subcommittee,
the new minimum qualification of English language proficiency for
these categories of foreign workers is an unnecessary measure in
managing employment-based immigration, and where it is a bona
fide occupational requirement, is a requirement which would best
be left to the employer. We are concerned that a federal agency
would have to determine what test to use and what score passes
regardless of whether the skills measured by the test are
appropriate or necessary for diverse employment situations. We
are also concerned by the uneven application of this requirement.
S. 1394's English language proficiency is not required of those
employment-based immigrants who would not be subject to labor
market screening, including multinational executives and
managers, investors, and "special" immigrants. We urge the
Committee to delete this requirement from the bill.
The Administration is also pleased that the Subcommittee
eliminated a provision from S. 1394 which would have required
three years of work experience outside the United States.
Nonetheless, the Administration continues to urge that new
minimum qualifications requirements be tailored to address the
use of work experience of all kinds while in a nonimmigrant
status that can lead to adjustment of status a back door to
legal immigration. Such measures could include disallowing work
experience gained with the petitioning employer (to address
misuse of the work experience connection), and certainly any'
experience gained if the prospective immigrant resided and worked
illegally in the U.S., including as a visa overstayer. We would
be pleased to work with the Committee staff to develop ways to
address the essential objective of such proposed requirements.
Section 303 continues to include the concept of "conditional
status" applicable to all employment-based immigrants who are
subject to labor market screening. The Administration vigorously
supports the goal of ending abuse of employment-based immigration
categories, but must restate its strong belief that this new
"conditional status" scheme raises grave concerns. We strongly
urge that the Committee reconsider this provision. The
Administration is concerned that the proposal, binding the
immigrant to an employer for two years, creates the potential for
exploitation in the workplace.
Under current law, employment-based immigrants gain lawful
permanent resident status on entry (or adjustment of status) and
all the rights attendant to such status, including freedom of
movement in the labor market. "Conditional" status would bind
the immigrant to the employer, and at the end of the two-year
66
period the immigrant would have to petition for removal of
"conditional" status and obtain the cooperation of the employer
to appear for a personal interview to demonstrate that the worker
had remained employed by the employer and had continued to
receive the required wage during the prior two year period. This
requirement could easily foster a great, and entirely avoidable,
potential for workplace exploitation.
Obtaining lawful permanent resident status is a primary
motivation for employment-based immigrants. Therefore, this
"conditional" status gives the employer tremendous power over the
worker extending beyond any period of employment in
nonimmigrant status during which the worker is also bound to the
specific employer (but, in some cases at least, is better
protected under the law).
The bill acknowledges the possibility of such exploitation
by providing for waiver of the two-year employment requirement
where the employer "committed illegal acts" or "so materially
altered the terms and conditions on which employment was offered
to and accepted by the alien, such that a reasonable person in
the alien's position would feel compelled to resign the
employment " Both definitions are quite vague and extremely
difficult to apply. In addition, in such circumstances, it is
likely that the troubled employment relationship would either'
continue while the issue is contested, investigated and
adjudicated, or would -- perhaps, more likely -- be terminated by
the employer leaving the worker without a means of support, at
least temporarily.
For all these reasons, the Administration opposes the
creation of "conditional" status for employment-based immigrants.
Because employment-based immigrants are frequently not paid the
wage promised in the labor certification, and often actually are
employed in a lesser capacity than described in the certification
application, we believe that these problems should be effectively
addressed through the enforcement mechanism discussed below.
Nonetheless, if "conditional status" is to be retained in
the bill, we strongly urge changes in the proposed waiver
criteria which would allow both reasonable worker protection and
the prospect of being administrable. We would be pleased to work
with the Committee toward such ends.
Under the bill, the wage requirement that must be satisfied
during a period of such "conditional status" equates to "at least
the compensation specified under section 212 (a) (5) (A) (i)
(including any increases that have occurred in the compensation
because of increases in the actual or prevailing compensation) "
As the bill goes on to replace the referenced section of the INA,
it is unclear as to what this wage obligation actually is. We
presume -- but it should be made clear -- that the reference is
67
to the wage level at which U.S. workers must be recruited
i.e., "compensation (including wages, benefits, and all other
compensation) equal in value to at least 100 percent of the
actual level of compensation (including wages, benefits, and all
other compensation) paid by the employer to other individuals
with similar experience and qualifications for the specific
employment in question, or 105 percent of the prevailing
compensation for individuals in such employment (including wages, "
benefits, and all other compensation), whichever is greater
We strongly agree that the prospective employer's wage obligation
-- with or without "conditional status" -- should include
consideration of the wage level that the employer actually pays
similarly-employed workers (in addition to the locally prevailing
wage level) so that such workers' wages cannot be undercut in
those situations where they exceed the prevailing wage.
The Administration also recommends that Congress clarify the
meaning of several phrases and terms used in this section that
are problematic for adjudication of visas. Phrases such as
"appropriate experts" and "potential for extraordinary
achievement" are vague and may pose difficulties during the
adjudication of visa requests. We suggest that the current
exceptional ability classification might serve the same purpose
as the "potential for extraordinary ability" category, without
posing those difficulties.
The Administration supports inclusion of a definition of
multinational company as a way to reduce fraud. We believe,
however, that the threshold numbers in S. 1394 are too low to
have much impact. We also note that the term "substantially
common ownership" is vague and would be hard to use in
adjudication.
Sec. 304 establishes new "labor market screening" systems
which would replace the current labor certification system. Both
of the new labor market screening systems proposed (discussed
further below) would require (except for outstanding professors
and researchers) the employer applicant to pay a fee which would
provide a market-based mechanism to encourage employers to look
first to the U.S. -- rather than the international -- labor
market to meet their employment needs. The fee is intended to
serve, over time, to increase the supply and competitiveness of
U.S. workers with the requisite skills to meet these needs.
Employers would be required to pay a fee equal to "$10,000 or ten
percent of the value of the annual compensation (including wages,
benefits, and all other compensation) to be paid to the alien
whose services are being sought, whichever is greater, minus the
lesser of the amount that the employer expended in the employer's
most recent taxable year for formal training of its employees in
specialty occupations
or 25 percent of the [above-described]
amount
II
This "training fee" is to be paid into a private
fund certified by the Secretary of Labor "as dedicated to
68
reducing the dependence of employers in the industry of which the
petitioning employer is part on new foreign workers
If with
the expenditure of the fee proceeds directed in equal parts to
college scholarships/fellowships and skills training.
This section provides that, as one alternative, the employer
also certify that it attempted to recruit U.S. citizens or lawful
permanent residents for the job, offering -- as cited above --
"compensation
equal in value to
the actual level of
compensation
paid by the employer to other individuals with
similar experience and qualifications for the specific employment
in question, or 105 percent of the prevailing compensation for
individuals in such employment
whichever is greater
" The
section further provides that, as the second alternative system,
if the Secretary of Labor determines that a national labor
shortage exists with respect to an occupational classification,
certification for petitions for that classification shall be
deemed to have been issued. Conversely, if the Secretary of
Labor determines that a labor surplus exists with respect to an
occupational classification, petitions for that classification
may not be issued. Any person may petition the Secretary of
Labor for a surplus or shortage determination.
The Administration strongly supports reform that relies on
market-based mechanisms. The Administration endorses the
training fee, and the training fund which would be built from
these fees, as the principal mechanism for ensuring that U.S.
employers undertake appropriate efforts to first recruit, retain
and retrain U.S. workers to meet their employment needs.
Employment-based immigration to fill skill shortages, as
well as the temporary admission of skilled foreign workers, is
sometimes unavoidable. But the Administration firmly believes
that hiring foreign over domestic workers should be the rare
exception, not the rule. And we believe that such exceptions
should become even rarer, and more tightly targeted on gaps in
the domestic labor market than is generally the case under
current law. If employers must turn to foreign labor, this is a
symptom signaling defects in the Nation's skill-building system.
Our system for giving access to global labor markets should be
structured to remedy such defects, not acquiesce to them. Our
immigration system should progressively diminish, not merely
perpetuate, firms' dependence on the skills of foreign workers.
Our primary public policy response to skills mismatches due
to changing technologies and economic restructuring must be to
prepare the U.S. workforce to meet new demands. Importing needed
skills should usually be a short-term response to meet urgent
needs while we actively adjust to quickly changing circumstances.
In this larger context, the Administration supports a shift
towards an immigration system which relies more on market-type
incentives to discourage employers from abandoning the domestic
69
workforce in favor of foreign labor while, at the same time,
making it less necessary for them to do so. A fee levied on
employers sponsoring skill-based immigrants, with the proceeds
dedicated to building the skills and enhancing the
competitiveness of U.S. workers, forges an admirably direct and
efficient link between the problem of skill shortages and the
only valid long-term solution -- investment in the U.S. workforce
-- while at the same time providing a safety valve of access to
foreign labor markets to meet skill demands that the U.S.
workforce cannot supply in sufficient quantity or with sufficient
speed.
The bill sets the required fee at "$10,000 or ten percent of
the value of the annual compensation (including wages, benefits,
and all other compensation) to be paid to the alien whose
services are being sought, whichever is greater, minus the lesser
of the amount that the employer expended in the employer's most
recent taxable year for formal training of its employees in
specialty occupations or 25 percent of the [above-described]
amount
" An employer's financial contribution to the fund
(the fee) must create a real incentive for employers to look
first to the domestic labor market to recruit, retain, and
retrain U.S. workers. In addition to creating an incentive to
develop U.S. workers, the fee contribution should create a
15
disincentive for employers seeking lower-skilled immigrant
workers. We have examined the wage distribution of immigrant
workers subject to labor certification in fiscal years 1993 and
1994; the large majority of immigrant workers in those years were
to earn between $15,000 and $50,000. We have already pointed out
to the Committee that if the amount of the fee that an employer
must pay equates proportionately to the value of the compensátion
package it will provide the immigrant employee, this builds in
incentives to keep these compensation costs as low as possible,
creating the potential for abuses as well as undermining the
wages and benefits offered similarly-employed U.S. workers. In
addition, it creates an incentive for employers to seek lower-
skilled, lower-paid immigrant workers, which works against the
basic thrust of our employment-based immigration policy. On the
other hand, a flat dollar amount fee allows employers of higher-
skilled, higher-paid workers to pay a comparatively small fee
that would have less effect in creating the proper
incentives/disincentives. We are gratified that the bill now
better accommodates these concerns while maintaining a
"meaningful" contribution to increase the supply and
competitiveness of U.S. workers.
We had urged that the legislation clarify that an employer's
training fee be a genuine incentive -- that employers should not
be able to satisfy the fee requirement by pointing to existing
training that they may fund. However, the bill now does just
that, introducing new layers of complexity in administration and
new opportunities for fee avoidance. We urge that no such fee
70
offsets be allowed. The training fee provides a weak incentive,
or no incentive at all, to invest in U.S. workers if employers
can simply reduce its value by counting existing expenditures for
training and education to satisfy their fee requirement.
Further, as contemplated by the bill, employers must be expressly
prohibited from shifting the cost of the fee to the immigrant
worker, either directly or indirectly. Such a provision will
restrain, although not entirely block, employers that want to
exploit immigrant workers or "game" the training fee requirement.
The Administration supports the mechanisms contained in the bill
to prevent and penalize such cost-shifting, although
reimbursement to the worker should be made either by the fund or
by the employer as appropriate to the circumstances. In
addition, in order to assure that employers do not recover the
cost of the fee by reducing wages -- and as an appropriate
safeguard of the wages and working conditions of similarly-
employed U.S. workers employers of immigrant workers must be
required to pay the immigrant worker the higher of the applicable
prevailing wage or the actual wage paid to similarly-employed
U.S. workers (as discussed above).
With respect to the structure of the training fund, the bill
now refers to "a private fund certified by the Secretary of Labor
as dedicated to reducing the dependence of employers in the
industry of which the petitioning employer is part on new foréign
workers
"
This statement of purpose has been amended to
eliminate the parallel goal of "increasing the competitiveness of
[U.S.] workers" which we believe is equally critical and should
be explicitly stated in the bill.
While the amended bill is clearer about the use of training
fund monies, we believe that still greater clarity is needed with
regard to how the fund would accomplish its stated goals and how
it would be managed. The Administration would like to work with
the Committee to develop criteria for the use of fund monies that
achieve the goals of the bill and a workable fund structure that
provides the accountability that the public expects. Also, due
to the uncertainty of the Federal government's employment and
training structure, the Administration would like flexibility in
assigning the responsibility of managing the criteria for the use
of the fund. Thus, the Administration urges the reference to the
Secretary of Labor in this instance changed to the "the Secretary
of Labor and other departments as designated by the President."
In any case, the scope and content of the certification
process as contemplated by the bill should be left to
regulations; the issues involved in the certification criteria
are simply too complicated to address in legislation. Also,
greater flexibility will ensure that the goals of the training
fund are achieved over time as the best means to regulate the
fund and to adjust certification standards accordingly become
apparent.
71
Consistent with this framework, a nexus between the
disbursement of the training fee's proceeds and the labor
shortage being addressed by the immigrant workers is needed.
However, it is important to take a broad view of the problems
that cause domestic skills shortages. Accordingly, the
Administration believes that the bill should encourage, but not
require, the use of the funds generated by the fee for training
for the occupations in which the immigrant workers will be
employed; broader use, including basic skills training but
excluding anything that does not directly involve human resource
development -- should be permitted.
We are pleased to see that the bill now also requires
payment of additional fees to cover DOL "costs of administering
the labor market screening required
including
all
enforcement activities in connection therewith." In these
stringent budgetary times, it is best if taxpayers do not have to
foot the bill for the cost of providing the benefits received by
employers and immigrants who use this system.
As previously noted, the training fee/fund is a common
component of the two new labor certification systems established
by the bill. One of these systems supplements the training fee
with a labor shortage/surplus determination system. The
Administration opposes an employment-based immigrant admission
system based on labor shortage/surplus determinations.
Under this system, if the Secretary of Labor found and
declared that a national labor shortage exists in an occupational
classification, certification for that occupation "shall be
deemed to have been issued" provided that the training fee has
been paid. On the other hand, if the Secretary found and
declared that a national labor surplus exists in an occupational
classification, certification could not be issued for that
occupation.
This proposed system parallels one used under the current
labor certification system. Nonetheless, as we have expressed on
numerous occasions, the Administration has serious concerns about
the technical feasibility of this approach which may make it
unworkable. Based on our experience with a parallel "labor
market information" pilot program a few years ago, while simple
in concept, this approach is terribly complex and difficult in
execution given its essential dependency on labor market
information which is insufficient for this purpose. While the
bill contemplates that such labor shortage/surplus findings would
be based on evidence presented by parties seeking to establish
the existence of national occupational shortages/surpluses, the
very best data available has -- in our view -- already proven
ill-suited and not sufficiently up-to-date nor sensitive to
circumstances in the localities where immigrant workers are
actually being sought. Development of current labor market
72
information on a locality basis would be prohibitively costly.
Also, a complete exclusion rule tends to be a much blunter tool
than is necessary to redress the abuses with which we should be
concerned.
The other new labor market screening system created under
Section 304 of the bill would replace the current labor
certification system with one which requires the Secretary of
Labor to certify that, in addition to making the required fee
payments, the prospective employer has: (1) attempted to recruit
U.S. workers for the job in which the immigrant would be
employed, and (2) has filed an application with the Secretary
stating that (a) it has not laid off similarly-employed U.S.
workers during certain time periods relating to the application,
and (b) it is not involved in a strike or lockout involving the
target occupation. Recruitment procedures must meet industry-
wide standards and offer a total compensation package as
discussed previously.
The bill would require the Secretary of Labor to certify
that the prospective employer had attempted to recruit "a citizen
of the United States or an alien lawfully admitted for permanent
residence for the job that will be done by the alien whose
services are being sought
"
Certainly, we understand the
bill to intend that the employer conduct bona fide recruitment in
the domestic labor market, and while it would be preferable
that the bill language be explicit in these regards we
understand the intent of the bill to require certification of
such recruitment in the domestic workforce, not limited to a
single individual, and that the employer's domestic recruitment
would, of course, have to be unsuccessful. In this regard, it
would also be useful if the bill clarified the intended standards
against which such unsuccessful recruitment would be measured to
address the currently common practice of employers "tailoring"
job descriptions to suit only the immigrant worker, thereby
assuring that any domestic recruitment will be unsuccessful.
In its recruitment an employer would be required to offer
"105 percent of the prevailing compensation for individuals in
such employment (including wages, benefits, and all other
compensation) " We agree that no loophole should be allowed
which would permit undercutting U.S. workers' working conditions
(and reduce the incentives/disincentives created by the training
fee) by depriving immigrant workers of benefits that are
typically provided. Yet the inherent difficulty of determining
prevailing compensation packages for various occupations should
not be underestimated. We have explored the availability of
reliable, up-to-date information regarding total compensation by
occupation and area and found very little. Further, the
development of such information can be extremely costly and
burdensome, and the legislation is too vague to provide guidance.
To remedy this problem (which does not occur in the context of
73
the fee obligation) but still serve the goals stated above, we
strongly recommend that the bill be revised wherever a
"prevailing wage" payment or recruitment obligation is set forth
-- to invoke the applicable prevailing wage plus the same
benefits and additional compensation provided to similarly-
employed workers by the employer.
The bill does not indicate that prevailing wage
determinations would be made for the area where the immigrant
will be employed. This deficiency, which we have previously
pointed out, will create undesirable and probably unintended
consequences. For example, employers in major metropolitan areas
-- where wage rates and benefits tend to be higher could be
encouraged to use the system due to their advantage of being able
to recruit by offering compensation packages that meet a
nationally prevailing wage standard -- but which might well be
less than they actually pay their U.S. workers in those
locations. On the other hand, employers in lower wage areas of
the country could be discouraged from using the program because
they would be seriously disadvantaged by being required to
recruit offering a compensation package which satisfies the test
but which actually represents much more than the applicable
prevailing wage rate they pay similarly-employed U.S. workers in
their location. However, requiring determination of prevailing
compensation for an occupation only on a locality basis could be
extremely resource intensive, SO we again urge that the bill
afford the flexibility to require determination of the prevailing
wage on a local, State-wide, regional or national basis depending
on the availability of reliable, up-to-date data for various
occupations and industries.
In the Administration's view, the labor market screening
system contained in S. 1394, as introduced, did not adequately
protect U.S. workers from unfair competition with immigrant
workers. In this regard, the Administration had strongly urged
that, beyond requiring unsuccessful recruitment in the domestic
labor market, additional labor protections be built into the
proposed labor market screening system. We are gratified to see
that the amended bill reflects our most important concerns
that if employers are trying to find foreign workers to fill
labor shortages caused by a breakdown in the nation's skill
development system, there can be no legitimate justification for
laying off or otherwise displacing U.S. workers or using
immigrant workers as strike breakers.
Given the serious problems with the bill's "conditional"
status concept (as discussed above) and the need to assure that
the obligations of participation in the program are fully
complied with by the employer, the Administration believes
strongly that the bill needs to provide appropriate enforcement
powers to the DOL. Such enforcement powers are important not
only as a safeguard for workers' rights; they also ensure that
74
the market mechanism created by the training fee/fund functions
properly. For example, an employer that can avoid paying the
required wage or shift costs to the immigrant worker with
impunity will have defeated the market-based incentive to
recruit, retain, and retrain U.S. workers. In order to ensure
that the requirements of the new labor market screening admission
process are observed, the Labor Department must have the ability
to seek out and identify employers that violate the law, assure
that U.S. and immigrant workers are protected or made whole, and
impose substantial penalties that will deter future violations
and promote compliance. Thus, the legislation should vest the
Labor Department with additional enforcement powers -including
the right to seek injunctive relief, the right to initiate
investigations, and whistleblower protections and require
remedies for employer violations that include "making whole"
workers injured by the violation e.g., reinstatement of
wrongfully laid off workers as well as substantial penalties
for violations. These specific provisions must be included in
the legislation as some cannot be created by regulation or
administrative action.
Sec. 305 modifies the special immigrant classifications by
adding a new category for certain disabled sons and daughters of
U.S. citizens and lawful permanent residents. This section
imposes insurance requirements upon the parent sponsor of such
disabled immigrant sons and daughters similar to the insurance
requirements imposed in section 301 upon son and daughter
sponsors of elderly immigrant parents.
The Administration objects to this section for reasons
similar to those described relating to section 301 regarding
elderly immigrant parents. In addition, this requirement is even
more impractical than the insurance requirement for elderly
parents; private individual health insurance policies are even
less likely to be available or affordable to the severely
disabled.
This section also appears to offer a benefit which could, as
a practical matter, only be met by a parent whose employer offers
health insurance coverage that would extend to an adult son or
daughter without pre-existing condition limits or exclusions.
Very few parents are likely to have such coverage. While we note
the exemption for changes in the sponsor's financial
circumstances, this exemption would not cover changes in the
sponsor's employment status or changes the sponsor's employer
makes in health insurance coverage. It is also unclear who would
be held responsible regarding health insurance coverage for a
disabled son or daughter if the parent dies first, as would
frequently be the case. We prefer retention, as noted above, of
current first and third family preference categories, which
necessarily would include this group of sons and daughters of
U.S. citizens rather than creating a new special immigrant
75
category.
Sec. 306 would modify the effect of an approved immigrant
visa petition by providing that the approval of an immigrant
classification petition does not relieve the alien of the burden
of proving to a consular officer that he/she has established
eligibility to receive an immigrant visa in all respects. This
section further provides that the denial of an immigrant visa by
a consular officer, notwithstanding the presence of an approved
petition, is non-reviewable.
Although the Administration supports efforts to prevent the
issuance of visas based on the presentation of fraudulent
immigrant visa petitions, section 306, as currently drafted, does
not appear to achieve that result. For example, under section
212 of the INA, the mere presentation of a fraudulent visa
petition does not automatically constitute a basis for denying a
visa. Section 306 appears to reiterate the existing authority of
consular officers to deny visas, rather than conferring
additional authorities. At the same time, it raises questions.
Would the INS be required to revoke the petition upon its "return
to the Attorney General"? If so, would the revocation be subject
to review? Under current law, there are mechanisms in place to
correct errors if the consular officer believes a mistake has
been made on a visa petition. Therefore, we strongly object to
this new provision as written and would be happy to work with the
Committee to clarify this section.
Sec. 307 would establish limitations and conditions on
judicial review of agency actions relating to petitions for a
visa or adjustment of status. The Administration believes these
limitations and conditions on judicial review should include both
immigrant and nonimmigrant visa petitions. The Administration
also believes that, because the petitioner seeking relief under
this section may be a U.S. citizen, the venue should lie in the
district in which the petitioner resides. The requirement that
the venue for these matters lies only in the U.S. District Court
for the District of Columbia may also overburden this court
which, in any case, does not have a particular history or
expertise in immigration matters over the other federal courts.
Secs. 308 & 309 contain conforming amendments and repeals
and transition provisions, respectively.
Subtitle B -Changes in Numerical Limitations on Immigrants
Sec. 311 establishes a worldwide numerical limitation on
family-sponsored immigration of 85,000, plus any visas authorized
for backlog reduction under section 314 (2nd preference). As
stated in relation to section 302, the Administration strongly
supports its own framework for legal immigration reform which
lowers the level of legal immigration while providing stronger
76
support for family reunification principles.
Sec. 312 establishes a worldwide numerical limitation on
employment-based immigration of 90,000 per year. The
Administration supports an admission level of 100,000, which
represents a substantial reduction from current law (140,000) but
which allows U.S. employers to hire the employees they need to
remain competitive in the global market.
Sec. 313 changes current law on per-country limits,
providing that the level of family-sponsored and employment-based
immigrants may not exceed 20,000 for non-contiguous foreign
states, 40,000 for contiguous foreign states, or 5,000 for
dependent areas. This limit would be reduced for a country in
any fiscal year by the number of immediate relatives above 20,000
(or 40,000 for contiguous countries and 5,000 for dependent
areas) admitted during the prior year. Immigrant visas made
available to spouses and minor children of lawful permanent
residents for backlog reduction are exempt from the per country
limit.
The Administration has reservations about changing the
nation's policy of equity among all countries, including our
contiguous neighbors. The per country ceilings established in
the bill may also create problems because of the increasing :
number of naturalizations and their resulting impact on immediate
relative petitions. We hope to work with the Committee to
explore the full potential impact of these and other changes in
levels of admissions.
Sec. 314 creates a special "transition" program to reduce
the backlog of spouses and minor children of lawful permanent
residents, calling for 150,000 visas in the first year and the
lesser of 150,000 or the difference between the total level of
family-sponsored immigration (including immediate relatives) for
the prior fiscal year and the same numbers for fiscal year 1995.
These visas are to be made available first to relatives of aliens
who did not become lawful permanent residents due to IRCA's
legalization programs.
The Administration has proposed a preferable alternative to
this approach to backlog reduction. The Administration strongly
favors relying on its naturalization initiative to reduce the
backlog of spouses. and minor children of lawful permanent
residents, rather than creating a special program. We estimate
that 80 percent of the backlog consists of relatives of aliens
who became lawful permanent residents through IRCA's legalization
programs. With this Administration's commitment to improve the
naturalization process, these aliens have an opportunity to step
forward affirmatively to become U.S. citizens. Upon taking that
step, they may petition for their spouse and minor children as
immediate relatives of a U.S. citizen. The 20 percent of the
77
backlog who are not relatives of aliens legalized pursuant to
IRCA should have preference for visas in this category.
Sec. 315 calls for Congress to review the annual numerical
limitations on family-sponsored and employment-based immigrant
classifications after the present backlog of spouses and minor
children of permanent resident aliens has declined to 10,000 or 5
years after enactment, whichever comes later. It also creates
special procedural rules for consideration of such legislation.
The Administration supports Congressional review of immigration
levels after 5 years. We do not believe, however, that the
decline in second preference backlog numbers to 10,000 is a
valuable triggering mechanism for review. We urge the Committee
to consider the Administration's legal immigration reform
proposal that maintains the integrity of the family preference
categories and does not require a substantial overhaul of the
system.
TITLE IV -- NONIMMIGRANTS
The Administration agrees with the general objectives of the
nonimmigrant program changes in the bill to address abuses in
these programs and provide adequate protections to U.S. workers.
However, there are a number of provisions which require
additional and careful review with regard to their consistency
with U.S. trade agreement commitments. For example, the bill
proposes changes to various visa categories, including H-1B and
L, for which the U.S. has undertaken international obligations
under the World Trade Organization's (WTO) General Agreement on
Trade in Services (GATS) and the North American Free Trade
Agreement (NAFTA).
Secs. 401-403 and 405-406 make important changes to the H-1B
nonimmigrant visa category which allows the admission (or
adjustment) of foreign "professionals" to be employed in
"specialty occupations" (as well as fashion models of
distinguished merit and ability). The Administration has long
and vigorously urged amendment of the H-1B admission criteria,
consistent with our GATS and NAFTA commitments, to effectively
address real abuses in the program and assure adequate protection
for U.S. workers.
The bill's amendments to the H-1B nonimmigrant program would
require employers seeking to employ such nonimmigrants to pay a
fee prescribed by the Secretary of Labor to cover the Department
of Labor's costs of administering and enforcing the program
requirements. 1 In addition, such an employer would be required
1 Notably, the bill seems to lack a needed mechanism,
similar to that which exists with respect to the other fee
provisions, to prevent cost-shifting from the employer to the
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to attest:
*
that it will pay a total compensation package that is
the higher of the package paid similarly-employed U.S.
workers or 105 percent of the prevailing compensation
for the occupation;
that during certain periods it has not and will not lay
off or otherwise displace U.S. workers in the target
occupation;
that it has unsuccessfully attempted to recruit in the
domestic labor market for the target job using
industry-standard recruitment procedures and offering
the higher of the actual or 105 percent of the
prevailing compensation level; and,
whether it is dependent on H-1B workers, as defined in
the bill.
Further, "job contractors" seeking to use this program would
be precluded from placing H-1B nonimmigrant employees at
worksites of customers which had not also attested to complying
with the H-1B program criteria. The bill would also establish
new guidelines for prevailing wage determinations applicable
under this program.
No H-1B nonimmigrants would be admissible to work for
"employers dependent on H-1B workers" unless:
*
the Secretary of Labor certified that the employer paid
a training fee similar to that set out for employment-
based immigrants subject to labor market screening (as
discussed previously), which could not be shifted to
the nonimmigrant worker;
*
the nonimmigrant has "demonstrated to the satisfaction
of the Secretary of State and the Attorney General that
the alien has a residence abroad which he has no
intention of abandoning";
*
such employer takes timely, significant and effective
nonimmigrant employee. This deficiency needs to be fixed. In
addition, the bill indicates that such fees should cover the
costs to DOL of conducting regular, random audits, including of
"the qualifications of the petition beneficiaries." This
particular function has traditionally been the responsibility of
the INS and, therefore, we suggest that the bill indicate that
the fee be set by the Secretary of Labor SO as to cover the costs
to both DOL and INS of performing the specified audit functions.
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steps to recruit and retain sufficient U.S. workers in
order to remove as quickly as reasonably possible its
dependence on H-1B workers (though it is not clear
whether such dependent employers would be required to
make any enforceable attestation in this regard) ; and,
*
the prospective employer has not been found within the
prior two years to have failed to comply with the H-1B
program requirements.
Finally, the bill would increase penalties for certain H-1B
program violations and reduce the authorized period of stay of H-
1B nonimmigrants from a maximum of six to three years.
The Administration appreciates and generally supports the
thrust and objectives of these amendments. These provisions will
help improve protections for U.S. workers. We must point out,
however, that some of these H-1B program amendments raise a
variety of technical and international trade agreement issues
that need to be carefully examined and fully considered.
The Administration would strongly urge that the amendments
it had previously proposed -- particularly with respect to the
displacement of U.S. workers -- be adopted. The H-1B program
amendments we requested in 1993 were carefully designed to assure
continued business access to needed high-skill workers in the
international labor market while adequately protecting U.S.
workers and the businesses which employ them. These amendments
are targeted especially to those employers who seek to obtain
relatively low-skilled "professional" workers. Specifically, in
nearly all situations it is entirely unreasonable that an
employer in this country -- as a matter of public policy not
only does not have to test the domestic labor market for the
availability of qualified U.S. workers before gaining access to
foreign workers, but is actually able to lay off U.S. workers to
replace them with temporary foreign workers in their own employ
or through contract. This is exactly what is happening now; our
public policy tolerates it, perhaps encourages it, and our policy
must change. The "no layoff" provision currently contained in S.
1394 should accomplish the desired change.
A second amendment we proposed in 1993 would require all
employers of H-1B workers not just those who are already
"dependent" on such workers to attest that they have and are
taking timely and significant steps to recruit and retain U.S.
workers in the jobs in which they seek to employ H-1B
nonimmigrants. In this regard it is quite important that, if
"significant step[s] to recruit and retain" U.S. workers are to
be enumerated in the bill, they should be required to both be new
actions by the employer and be meaningful. In our view, this is
not the case with the current bill as drafted.
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A new provision of the bill (compared to the original
S.1394) would establish special procedures for determining
prevailing wages for occupational classifications of employees in
institutions of higher education or related or affiliated
nonprofit entities or nonprofit research institutes. The
Administration recommends two further amendments. In our view,
this special procedure: (1) should be broadened to also apply to
federal research organizations, such as the NIH, so that the
government is not placed in the untenable position of having to
match much higher salaries in the private sector, and (2) should
be limited to only those individuals employed as researchers by
academic, nonprofit, and federal research institutions.
The problem with the prevailing wage requirement (discussed
above) in relation to section 304 (see page 67) also occurs in
this section. The requirement should invoke the applicable
prevailing wage plus the same benefits and additional
compensation provided to similarly employed workers by the
employer.
Sec. 404 of the bill would change the H-2B nonimmigrant visa
classification -- for unskilled, non-agricultural temporary
foreign workers -- to reduce the annual admission ceiling to
roughly current usage, and to limit admission to workers who will
provide "skilled services or skilled labor." While generally
sympathetic with the goals of this latter change, and its
consistency with the overall thrust of legal immigration reform
in recent years, we strongly caution that this change could have
significant and unintended repercussions, particularly in Guam.
Sec. 405 makes changes to the L visa criteria including
limiting the availability of the visa to employees of
"multinational firms" as defined in section 303 (a) (1) (B) (ii), and
increasing the length of time an employee must be employed by a
multinational firm outside the U.S. prior to application, and
modifying the definition of "specialized knowledge. Although
the Administration supports the goal of reducing fraud, these
particular provisions require further review with regard to their
consistency with U.S. international obligations.
Sec. 406 limits the maximum length of stay for L, H-1B and
H-2B nonimmigrants to three years. The Administration strongly
supports the limitation on length of stay in the H visa programs
as comporting with the "temporary" nature of these nonimmigrant
visa categories. As a result, H-2B visa holders are currently
subject and will remain subject to recertification by regulation
on at least an annual basis. The limitation on the L visa,
however, would be inconsistent with some of our international
trade obligations.
Sec. 407 changes the F, J, and M nonimmigrant
classifications to limit the duration of admission for student
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visa holders to the proposed period of study or participation in
the sponsoring exchange program. It also excludes from
eligibility under the F classification persons studying English
for six months or less and persons attending public elementary or
secondary schools.
The amendments in section 407 (b) would prevent a
nonimmigrant student from obtaining a student visa in order to
attend a public elementary or secondary school, although that
student could obtain a student visa to attend a private
elementary or secondary school. Nonimmigrant students other than
those who entered the U.S. on a student visa, or who are here
temporarily for business or pleasure, could still apply to attend
public elementary or secondary schools.
Sec. 408, using language similar to section 407 (b) also
precludes a nonimmigrant student from obtaining a student visa to
attend a public elementary or secondary school. The overlap and
inconsistency between section 407 (b) and section 408 (a) should be
resolved. Section 408 (b) provides that a nonimmigrant admitted
under section 101 (a) (15) (F) for study at a private elementary and
secondary school who fails to remain enrolled at such a school
becomes excludable.
Sec. 409 establishes a pilot program to collect information
from colleges and universities, establish an electronic tracking
system of nonimmigrant foreign students, and make this
information available to selected U.S. embassies and consulates.
The information would include whether an alien is enrolled or has
been accepted for enrollment, the alien's current U.S. address,
whether the alien is studying full-time or part-time, and whether
he or she is making normal progress toward the degree. The pilot
would be funded by processing fees assessed by the Department of
State and the Attorney General.
The Administration is currently working on an improved
tracking system through the INS' Student Controls Task Force and
believes that this approach is better than the one proposed in
this bill. INS does not need to know when a student is placed on
academic probation. The INS needs to know only when the student
is still a full-time student, whether the student has interrupted
his/her education, ceased attendance, or otherwise violated
student status. Currently, these institutions are required to
report only the withdrawal of students with student visas SO this
provision would increase the reporting burden on institutions.
The Administration would like to work with the Committee to
develop appropriate language to support implementation of a
revised, efficient tracking system.
Currently, the bill requires, in subsection (f) a report on
the feasibility of expanding the program to cover the nationals
of all countries while subsection (g), requires that, not later
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than six months after the submission of the report, expansion of
the pilot program to cover the nationals of all countries must
begin and be completed within one year, regardless of the
report's conclusions. These subsections should be reconciled.
The bill also should clarify that the fee it proposes is in
addition to the fee currently collected for normal processing
that goes to the Exams Fee Account. There should be clearer
definition of the appropriate distribution and collectors of the
fee. The Department of State should collect the money, and the
proceeds should be divided between the Department of State and
the INS based on the costs they respectively incur.
The bill does specify that a fee will be collected for
processing the J visa, and we oppose such a fee because it would
adversely affect that group of J visitors that can least afford
an additional fee, i.e. students. We are especially concerned
about the impact the processing fee would have on government-
funded programs, unless they are exempted. Government sponsored
exchange programs would, in all likelihood, absorb this fee and
thereby incur increased programming costs. However, for U.S.
Information Agency (USIA) to participate in the pilot program,
i.e. incorporating the J visa exchange visitors, would require
additional appropriations.
We also recommend modifying the language of the clause
referring to J visas in (h) to read II or as a condition of
their continued designation as an exchange visitor program by the
Director of the USIA under section 101 (a) (15) (J) of such Act. "
TITLE V -- EFFECTIVE DATE
Sec. 501 establishes that the effective date of titles I and
II is the date of enactment of this Act and that the effective
date of titles III and IV is October 1, 1996, unless otherwise
provided. The provisions of section 201 and 204 shall apply to
benefits and to applications for benefits received on or after
the date of enactment of this Act. The amendments made by
sections 132, 133, 141, 142 and 195 shall be effective upon the
date of enactment and shall apply to aliens who arrive in or seek
admission to the United States on or after such date; the
Attorney General may issue interim final regulations to implement
these sections at any time on or after the date of enactment.
Such regulations may become effective upon publication without
prior notice or opportunity for public comment.
We object to the provision specifying that the Attorney
General may proceed directly to interim final rule in this
section. Decisions about the form in which regulation should be
issued are governed by the Administrative Procedures Act (APA)
The Attorney General has sufficient authority there to determine
when exceptions to the APA's notice-and-comment and 30 day
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delayed effective date provisions are appropriate. Given these
concerns, section 501 (b) (2) (B) should be deleted as redundant and
inconsistent with the APA.
The new definition of eligible alien (section 201) and the 5
year deeming period (section 204) would apply to benefits being
received at the time of enactment, and affect current recipients
as well as future applicants. We are opposed to applying the new
deeming and eligibility provisions to current recipients,
including the disabled. Benefits received after the date of
enactment would be counted towards the new public charge
provisions (section 202), and we are concerned about the ability
to adequately inform current immigrants of the new rules
concerning public charge and the potential for becoming
deportable.
The provisions with the greatest SSI impact--the definition
of "eligible alien" and sponsor-to-alien deeming--would be
effective upon enactment. Such an effective date could eliminate
benefit eligibility for as many as 250,000 legal immigrants under
the SSI program. Even more immigrants would be affected when the
other federal programs are considered. These are individuals who
have already entered the country and "played by the rules. " We
do not support penalizing this group.
We are also concerned that it will be difficult to
promulgate regulations, even interim regulations, before the date
of enactment to allow for immediate implementation of the
provisions such as special exclusion procedures. Special
exclusion is a sensitive area that will require advance guidance
to field officers to ensure fair and equitable treatment of
aliens and to avoid unnecessary litigation. We believe that
drafting proposed regulations and allowing public comment before
implementation would be clearly preferable to issuing interim
regulations for the many major changes made in this bill.
Therefore, the effective date of this bill should be at least 270
days after enactment.
Mr. Chairman, we appreciate the continued support of this
Committee for the initiatives taken by this Administration on
urgent immigration matters. We have provided lengthy briefings
to your staffs regarding the Administration's vision for
immigration reform legislation, and we will continue to work with
the members of this Committee on necessary improvements to
achieve bipartisan immigration improvements legislation that is
in the national interest.
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The Office of Management and Budget has advised that there
is no objection to the submission of this letter from the
standpoint of the Administration's program.
Sincerely,
Jan Subt
Jamie S. Gorelick
Deputy Attorney General
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