The congressional leadership, aided by the Appropriations Committee, has once again extended the EB-5 program, and a loophole in the H-2B program, by inserting language in the massive interim budget bill. The provisions, due to expire this coming Friday will now remain in place until September 30, the end of the fiscal year.
Republican and Democratic leaders agreed over the weekend to the text of the budget bill, which is expected to be passed shortly.
The main part of the controversial, scandal-ridden immigrant investor (EB-5) program gets another "clean" extension, i.e., one without reform. This is the provision that allows the sale of a set of green cards to investors' families for $500,000 to be invested, usually, in urban real estate. At about the same time, yet another multi-million dollar EB-5 theft, involving some 280 Chinese investors and a gold mine in Idaho, erupted as we reported earlier.
Similarly, the end-run around the congressional ceiling of 66,000 H-2B (unskilled, non-agricultural foreign workers) will last for the same length of time. This is the re-definition of the 66,000 limit to exclude returning H-2B workers admitted in previous years, as we reported in an earlier blog post.
The potential increase in H-2B visas is slightly different from the versions in earlier years. The language of the provision is as follows:
Sec. 543. Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in fiscal year 2017 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year above such limitation by not more than the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program in any fiscal year in which returning workers were exempt from such numerical limitation.
This means that rather than automatically increasing the number of available H-2B visas, Congress is giving DHS Secretary Kelly the option to increase the number. He may choose not to do so, though he will now be subject to intense lobbying pressure (probably even from congressmen themselves).
CIS Executive Director Mark Krikorian, after pouring over the huge document, said that the extension of the EB-5 program was "hidden in the citation arcana":
Sec. 542. Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting 'September 30, 2017' for 'September 30, 2015'.
The manner in which the H-2B extension was handled set off an unusual, intra-committee battle in the Senate as the chair of the Senate Judiciary Committee, Chuck Grassley (R-Iowa), and the ranking minority member, Dianne Feinstein (D-Calif.), issued the following joint statement:
The Constitution clearly provides that Congress shall determine the nation's immigration policy, and the Senate places such policy squarely in the jurisdiction of the Judiciary Committee. This move by leadership and appropriators cedes portions of this authority to the Executive Branch without a public debate by the committee of jurisdiction for the policy.
We understand the needs of employers who rely on seasonal H-2B workers if the American workforce can't meet the demand, but we are also aware of the potential side effects of flooding the labor force with more temporary foreign workers, including depressed wages for all workers in seasonal jobs. The bottom line is that this issue deserves more thoughtful consideration. Appropriators should remove this provision and give the Judiciary Committee time to properly consider and debate this change to our nation's immigration laws.
The two senators might well have said the same thing about the clean extension of EB-5, which both oppose.