Deferred Action for Childhood Arrivals (DACA), H-1B visas, Illegal aliens, Immigrant Visas, Racketeer Influenced and Corrupt Organizations Act, Special Immigrant Visa (SIV), Veterans & Military, Veterans’ Benefits
How America Treats Illegal Aliens vs. Veterans
In last year’s National Defense Authorization Act, Congress cut benefits to veterans by increasing co-pays for prescriptions. According to the Congressional Budget Office, the increased co-pays saved the federal government approximately $1.5 billion. (See CBO Estimate FY2016 NDAA) However, it now appears that $336 million generated from the veterans’ cuts was used to pay for 3,000 additional Afghan interpreters to be resettled in the United States. (The Daily Caller News Foundation, May 16, 2016)
Known as the Special Immigrant Visas (SIV), this program was created by Congress in 2009 for Afghan employees and contractors who were employed by the U.S. government in Afghanistan any time after October 6, 2001, and who experienced an ongoing serious threat as a result of that employment. (See Public Law 111 – 8;8 U.S.C. 1101 note 26, Afghan Allies Protection) Initially, the annual cap on SIVs issued was 1,500 but it was increased to 4,000 in the Fiscal Year 2015 NDAA before being increased again in the Fiscal Year 2016 NDAA to 7,000. (See FAIR Legislative Update, Dec. 9, 2014; Department of State SIV Guidelines)
While Afghan translators serve an important function in the ongoing war on terror, it is poor public policy to cut benefits to American citizen veterans to pay for these visas. “Military families shouldn’t be paying for the SIV program. The program should be funded outright because of the service our interpreters rendered,” said former Army combat veteran Alex Plitsas. (The Daily Caller News Foundation, May 16, 2016) There’s no reason to put veterans’ benefits on the chopping block, especially since there is overlap in jurisdiction with the State Department’s control of visa programs. (Id.)
Outrageously, it appears that several Senators want to cut veterans’ benefits again in the Fiscal Year 2017 NDAA to pay for even more SIV. An unnamed Senate Armed Services Committee aide told the Daily Caller, “I’ve been told by multiple sources that they’re trying to use the co-pay hike to pay for the visa increase again this year.” (Id.) “With so much wasteful government spending that should be cut, it is befuddling how some in Congress are so eager to put military and veteran benefits on the chopping block.” (Id.)
The Senate is working on the Fiscal Year 2017 NDAA this week. Both Chairman John McCain (R-AZ) and Sen. Jeanne Shaheen (D-NH) have expressed a desire to increase the SIV cap but neither has explained how it would be paid for. (Id.)
House Passes National Defense Authorization Act, Includes Key Border Security Amendment
Late Wednesday, the House passed the Fiscal Year 2017 National Defense Authorization Act (NDAA), 277-147, with most House Democrats voting against the bill – enough to sustain a potential presidential veto (Politico, May 19, 2016).
The sweeping $610 Billion defense funding bill includes a FAIR-supported amendment introduced by Rep. Ted Poe (R-TX) that gives the Department of Homeland Security (DHS) and border states preference for excess Department of Defense (DoD) equipment. This equipment includes the following, all of which are currently used by U.S. Customs and Border Protection (CBP) as part of their border security mission:
- Unmanned surveillance aerial vehicles, including the Aerostat radar system, which has been shown to significantly lower crossing rates in areas where it is deployed
- Night-vision goggles
The increasingly porous southern border has become a virtual highway for illicit traffic and violence. Criminal cartels have increased their presence, easily identifying lapses in border enforcement and then smuggling people and drugs across at record rates. While federal, state, and local law enforcement agencies who conduct border security functions do the “best they can” with what they are provided, they have been desperate for more resources. For years, the DoD has invested taxpayer dollars in equipment that has been used to defend the borders of nations thousands of miles away. The Poe Amendment ensures that this equipment is used to secure the United States, as well.
Disney Tries to Get H-1B Lawsuit Dismissed
Walt Disney World is seeking to have a federal court in Florida dismissed the lawsuit filed by former IT Engineer Leo Perrero. In his lawsuit, Mr. Perrero alleges that Disney violated the RICO Act (racketeering) by colluding with HCL to replace American workers with cheap foreign labor brought to the U.S. on H-1B visa. (Law360, May 16, 2016) Mr.Perrero, who was laid off along with several hundred American tech colleagues earlier this year despite strong performance reviews, is seeking class certification for his lawsuit of all “American individuals” who Disney fired and replaced with foreign workers. (Id.) Specifically, the lawsuit asserts that Disney and HCL engaged in unlawful racketeering by conspiring with each other when telling the Department of Labor that the hiring of foreigners on visas would not adversely affect the working conditions of U.S. workers. (Id.)
However, in two separate motions to dismiss Disney and HCL claim they did nothing illegal when replacing American tech workers with H-1Bs. First, Disney argues that it did not violate the Racketeer Influenced and Corrupt Organizations Act (RICO Act) because it did not make false representations and there cannot be a conspiracy when no unlawful acts occurred. (Id.) Additionally, Disney urges the court to reject Mr. Perrero’s civil conspiracy claim arguing that the complaint fails to allege a violation of Florida law. (Id.) “When the complaint’s many unsupported conclusory allegations and mistakes of law are stripped away, the ordinary business arrangement on which plaintiff relies is fully explained by lawful motivations and plaintiff’s conspiracy claims fail,” Disney’s motion to dismiss reads in part. (Id.)
It is unclear how the court will rule on the motions to dismiss but this case is the latest example highlighting the flaws in the H-1B Visa laws . Created in 1990 by Congress, the H-1B law appears to provide protections for American workers by requiring companies to pay H-1B workers the “prevailing wage” for their job and not adversely affect the working conditions of American workers “similarly employed.” (See INA Section 212 (n)(1)) (emphasis added) However, the statutory definition of “prevailing wage” allows the employer to determine the prevailing wage based on the position description rather than the H-1B worker’s actual skill level. (See INA § 212(p)(4)) Thus, employers can legally replace Americans with cheaper foreign workers by claiming that the H-1B position is different than the displaced American worker’s, regardless of actual job responsibilities. For example, the Labor Department concluded last year that Infosys Ltd did not violate the law when Southern California Edison laid off approximately 500 American technology workers and replaced them with H-1Bs. (See FAIR Legislative Update)
House Committee Approves Legislative Branch Appropriations Bill with ‘Illegal Alien’ Provision
Last week, the House Appropriations Committee passed the Fiscal Year 2017 Legislative Branch Appropriations Act, which provides funding for the Capitol Police, government printing, and other basic operations of the House. (Fox News, May 17, 2016) Also covered by the spending bill is the Library of Congress, which, at the behest of pro-amnesty groups, recently announced that it had canceled the use of “illegal alien” and the broader term “alien” for cataloging purposes. (See FAIR Legislative Update, Apr. 19, 2016) The Library of Congress explained that the terms would be swapped out for “noncitizens” and “unauthorized immigration” – terms that are factually and legally incorrect.
During the bill’s subcommittee markup last month, Chairman Tom Graves (R-GA) included a FAIR-supported provision that orders the Library to continue using the terms “alien” and “illegal alien” because they are consistent with terminology used in Title 8 of United States Code. (See FAIR Legislative Update, Apr. 26, 2016) This prompted the panel’s ranking Democrat, Rep. Debbie Wasserman Schultz (D-FL), to offer an amendment during the full committee markup that would remove the Graves report language. (Fox News, May 17, 2016) Wasserman-Schultz argued that the Library should “continue with its process of choosing subject headings without political influence.” (Id.) However, as noted in a letter to the Librarian of Congress by Senators Jeff Sessions (R-AL), Ted Cruz (R-TX), and two Texas congressmen, it is the Library that bowed to the political pressure of the moment and Congress is acting within the scope of its Constitutional authority.
(See Letter to the Librarian of Congress) “Although we respect the Library’s independence to make decisions involving routine operations, Congress is fundamentally an oversight body, and we strongly object to the Library’s elimination of terms that Congress has exercised its authority to use and deploy in the United States Code,” the senators and their colleagues wrote. (Id.) Fortunately, the Wasserman Schultz amendment failed 25-24 and the bill now awaits consideration on the House floor. (Fox News, May 17, 2016)
The Library is currently accepting public comments on the proposed replacements for “alien” and “illegal alien.” Comments will be accepted until July 20 through an online survey. To tell the Library that you do not support replacing these legally correct terms, click here.
New York Allows Illegal Aliens to Become Doctors and Teachers
The New York Board of Regents permanently adopted regulations on May 17 to make some illegal aliens residing in the state eligible to receive professional licenses. (CNS News, May 19, 2106) The rule change will allow illegal aliens with deferred action under President Obama’s Deferred Action for Childhood Arrivals (DACA) program to access to 53 professional licenses issued by the state, including medical and teaching licenses. (Id.)
Previously, only United States citizens and lawful immigrants were allowed to obtain professional licenses in New York state. (Breitbart, May 18, 2016) Supporters of the new regulation argued that illegal aliens with deferred action have work authorization issued by the federal government, and, therefore, should be able to work in any field they choose. (NYS Education Department, May 17, 2016) However, DACA is merely a temporary reprieve from deportation by the Department of Homeland Security (DHS) that may be terminated by the agency at any time. (Napolitano Memorandum, June 15, 2012) Deferred action and work authorization under the program are granted for two year terms, and does not confer any lawful immigration status onto the illegal alien applicant. (Id.)
The New York Board of Regents, which is responsible for setting education policy in the state and the public university system, may have violated federal law in the passage of these regulations. Federal law prohibits illegal aliens, including DACA recipients, from receiving professional licenses and other state issued public benefits, unless the state legislature affirmatively enacts a law granting illegal aliens access to these benefits. (8 U.S.C. § 1621 d)) Thus, the Board’s action allowing illegal aliens access to professional licenses through a change in regulations alone, without a vote by the New York State Assembly, is likely preempted by federal law.
New York is following a trend in states choosing to allow illegal aliens to obtain professional licenses. Nebraska and Illinois this year both considered legislation to allow illegal aliens with deferred action to obtain professional licenses. Nebraska governor Pete Ricketts (R) vetoed Legislative Bill (LB) 947, but the measure was overridden by the state legislature. (ImmigrationReform.com, Apr. 18, 2016; KMA Land, Apr. 25, 2016) In 2014, Florida passed a bill to allow illegal aliens with deferred action to obtain law licenses, despite the legal and ethical conflicts such licensing poses. (FAIR Legislative Update)