FAIR Legislative Update April 14, 2008

April 14, 2008

In this update:

• Homeland Security Helps Foreign Students Compete with U.S. Grads
• Congressional Budget Office Reports Price Tag on SAVE Act
• Los Angeles Considers Revisiting Sanctuary Ordinance
• Los Angeles Mayor Requests ICE Halt Workplace Raids
• FAIR News Releases
• Recent Floor Statements

Homeland Security Helps Foreign Students Compete with U.S. Grads

A week ago, the Department of Homeland Security (DHS) announced a regulatory change that makes it easier for certain foreign students studying math and science to stay and work in the U.S., competing with U.S. graduates in the domestic labor market. The Administration's new rule, which took effect on Tuesday, affects two categories of foreign students who study in the U.S. under F-1 visas.

First, the new rule allows foreign students studying math or science in the U.S. to stay longer in the U.S. if they are employed in a training program. Previous regulations allowed foreign students to be employed in what is called optional practical training (OPT) for up to 12 months after completing their coursework. (8 CFR 214.2(f)(10)). Under the new rule, math and science students are permitted to stay in the country for up to 29 months if they are working for an employer who has enrolled in U.S. Citizenship and Immigration Service's (USCIS) E-Verify electronic employment verification program. (Final Interim Rule with respect to F-1 Visaholders, 73 Federal Register 18944, April 8, 2008)

Second, the new rule automatically extends the stay of foreign students if a prospective employer has filed an H-1B petition on their behalf. This second rule was meant to alleviate so-called "cap gap": the situation in which a foreign student was required to return to his or her home country while waiting for an H-1B job to begin or an H-1B petition to be approved because his or her student visa had expired. Until the change, USCIS could extend foreign student visas while an H-1B visa was pending, but was first required to make a finding that the H-1B cap had been met well before the student's F-1 visa expired. Now, foreign students who are the beneficiaries of an H-1B petition and have filed a request for change of status will automatically receive an extension of their F-1 student visa until October of the fiscal year in which employment under the H-1B visa begins. (Final Interim Rule with respect to F-1 Visaholders, 73 Federal Register 18944, April 8, 2008)

In a statement announcing the rule change, Homeland Security Secretary Michael Chertoff said extending the stay of foreign students in the U.S. "will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy." (Press Release, April 4, 2008) Jeffrey Oleander, a programmer and software engineer in Cincinnati, Ohio, was more skeptical. "If they were truly outstanding ... then they ought to have a job lined up by a month after graduation, and be ready to go back and work for a year before abusing the visa program to come back." (ComputerWorld, April 7, 2008)

To read the proposed rule, click here.

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Congressional Budget Office Reports Price Tag on SAVE Act

In response to a request by the House Judiciary Committee, the Congressional Budget Office (CBO) last Friday released a cost study announcing that the Save America through Verification and Enforcement (SAVE) Act (H.R. 4088) would cost the federal government at least $23 billion dollars over 10 years. (The Politico, April 9, 2008) Of this amount, the CBO claims that $17.3 billion would result from a drop in tax revenue as illegal aliens stopped paying into the tax system. (CBO Cost Estimate for H.R. 4088, April 4, 2008) According to CBO Director Peter Orszag, because illegal workers would move off the books into a cash economy to avoid verification, "[t]he E-Verify system [mandated by the SAVE Act] would result in an increase in the number of undocumented workers being paid outside the tax system." (Id.) The $23 billion federal price tag comes as the House Majority Leadership works to dissuade members from signing a discharge petition that would bring the SAVE Act to a vote. (Legislative Update, April 7, 2008)

Congressmen Heath Shuler (D-NC), the author of the SAVE Act, and Brian Bilbray (R-CA), Chairman of the House Immigration Reform Caucus, responded to the CBO letter by arguing the costs of not enacting the bill far outweighed the CBO's estimated price tag. In a letter to colleagues Thursday, the two members argued the federal government should not expect revenues from an illegal workforce in the first place and that "tax receipts from illegal aliens do not cover the public assistance they receive."

Congressman Lamar Smith (R-TX), Ranking Member on the House Judiciary Committee, called the CBO letter "a disappointing distortion of the bill's actual savings to American taxpayers." Noting that most American employers want to hire a legal workforce, Smith called the assumption of the CBO that they would move to an off-the-books cash economy "a slap in the face to the large majority of American businesses who want to do the right thing." (Press Statement of Rep. Lamar Smith, April 8, 2008)

To see an analysis of the SAVE Act, click here.

To see which members have signed the discharge petition on the SAVE Act, click here.

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Los Angeles Considers Revisiting Sanctuary Ordinance

In response to the fatal shooting of a Los Angeles high school student by a criminal alien gang member, some members of the Los Angeles City Council are contemplating narrowing the City's sanctuary status. At a meeting of the L.A. City Council on Tuesday, Jamiel and Anita Shaw, the parents of the slain student, requested to amend Special Order 40, the ordinance that defines when police can inquire into immigration status, to allow officers to regularly check the status of gang member who are crime suspects. (Los Angeles Times, April 9, 2008) One councilman, former LAPD officer Dennis Zine is about to introduce a proposal that would affect such a change. (Los Angeles Times, April 11, 2008)

Special Order 40 has been on the books of the L.A. police department since 1979, when it was adopted by then-Police Chief Daryl F. Gates. According to its proponents, the ordinance is meant to prevent police officers from asking a person about his or her immigration status unless the person has been arrested for another offense. The order does not bar police from inquiring into the immigration status of suspects who have been arrested, but does not mandate a check either. However, Councilmember Zine asserts the order is not well understood among LA police, and some use it as a dodge to avoid ever inquiring into the immigration status of suspects. (Los Angeles Times, April 9, 2008) According to an editorial in the Los Angeles Times, when the LAPD made an earlier attempt to clarify Special Order 40, it was ultimately dropped due to its political volatility. (Los Angeles Times, April 9, 2008)

"Jamiel's Law," the change to Special Order 40 proposed by Councilman Zine, would require the police to check the immigration status of gang members who are under arrest or investigation. (Daily Breeze, April 12, 2008) However, it is unlikely that Jamiel's Law would have saved Jamiel Shaw Jr., the high school star athlete whose death sparked the drive to revise or repeal Special Order 40. Pedro Espinoza, the member of the 18th Street gang that killed Shaw, had been released four hours earlier after having been held on weapons charges. But, during that time, he was in the custody of the Culver City police department — which is not bound by Special Order 40 — and had lied to officers when asked about his immigration status, telling them that he was a U.S. citizen.

Nonetheless, the killing has been seen as a much-needed opportunity to make a necessary change to police rules. Speaking about his proposal, Councilmember Zine made that point, "If an officer stops and individual . . . who is determined to be a gang member, and it's determined they are also illegally here, then the department should notify immigration." (Los Angeles Times, April 11, 2008) These sentiments reflected those of Jamal Shaw Sr., speaking to the city council on Tuesday. "If you're a gang member who is suspected of committing a crime, why can't they check a database at the police station to see if you're here illegally? Why can't they check a database at the jail?" (Los Angeles Times, April 9, 2008)

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Los Angeles Mayor Requests ICE Halt Workplace Raids

In a letter sent March 27 to Homeland Security Secretary Michael Chertoff, Los Angeles Mayor Antonio Villaraigosa requested that Immigration and Customs Enforcement (ICE) stop workplace raids against "non-exploitative," established businesses in the region. The letter comes in response to increased enforcement efforts against employers in California. In the past fiscal year, ICE made more than 4,900 worksite arrests in the state, 45 times the number of arrests it made in 2001. Villaraigosa expressed concern that employers would see Los Angeles as being particularly targeted and would move their businesses elsewhere. (Los Angeles Times, April 10, 2008)

Matt Szabo, the mayor's spokesman, suggested ICE should direct its efforts at gang violence instead. "At a time when we are facing an economic downturn and gang violence at epidemic levels, the federal government should focus its resources on deporting criminal gang members rather than targeting legitimate businesses." Villaraigosa himself argued ICE was inappropriately targeting "non-exploitative" manufacturers and should instead focus on employers with a history of hiring illegal aliens to enable worker mistreatment. (San Jose Mercury News, April 10, 2008) Homeland Security spokeswoman Laura Keehner disagreed, stating her belief that the agency is "prioritizing appropriately." (Los Angeles Times, April 10, 2008)

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FAIR News Releases

• L-Visa: Big Business's New Loophole Updated! (April 11, 2008)
• Public Opinion Polls Updated! (April 8, 2008)

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Recent Floor Statements

• Rep. Sam Johnson (R-TX) commented on New Employee Verification System (April 10, 2008)
• Rep. Tom Tancredo (R-CO) commented on Sanctuary City San Francisco (April 10, 2008)
• Rep. Paul Broun (R-GA) commented on English As The Official Language (April 10, 2008)
• Rep. Darrell Issa (R-CA) commented on Honoring The Life And Service Of U.S. Border Patrol Agent Jarod Dittman (April 10, 2008)

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