National Review, July 27, 2018
The House Appropriations Committee this week approved the Department of Homeland Security funding bill for fiscal year 2019 (starting October 1, 2018), after considering a raft of amendments. This is not necessarily the final product; the bill will likely be amended further if and when considered by the full House of Representatives, and again when the House and Senate confer on reconciling their respective versions of the legislation.
Nevertheless, at this stage the DHS appropriations bill, passed Wednesday on a party-line vote of 29-22, is a snapshot of priorities of this most important committee. And it contains several harmful provisions that would increase illegal immigration and the importation of foreign workers on "temporary" visas — provisions passed with the support of the Republican chairmen of the full committee and its Homeland Security subcommittee.
The following is not necessarily an exhaustive listing of its immigration-related provisions, but it highlights the most important ones.
Funding levels. The provision most remarked on is the $5 billion for "Border Security Assets and Infrastructure", i.e., construction of an estimated 200 miles of border barriers, without the restrictions that are in the current-year funding bill that prevent use of funds for anything like a wall.
The bill also funds more than 400 additional Immigration and Customs Enforcement (ICE) agents and increases the number of detention beds by more than 3,000 over the current level, to 44,000. That said, the funds approved are very different from what the administration requested. The mostly non-immigration part of ICE, Homeland Security Investigations (HSI), is given about 17 percent more funding than the administration requested, while Enforcement and Removal Operations (ERO), which handles deportations, is given 19 percent less than requested.
Asylum standards. The worst mischief comes in the amendments. Among those added in Wednesday's markup, perhaps the most damaging is one introduced by Rep. David Price (D-N.C.), supported by Rep. Kevin Yoder (R-Kan.), chairman of the panel's Homeland Security subcommittee, and approved by voice vote. The measure prevents U.S. Citizenship and Immigration Services (USCIS) from implementing the attorney general's ruling regarding eligibility for asylum.
Last month, Attorney General Jeff Sessions reversed the creeping expansion of asylum by formally determining that domestic abuse and gang violence are not grounds for asylum from persecution due to "membership in a particular social group", as specified in the 1980 Refugee Act. This expansion of the grounds for asylum took place under the prior administration without congressional action and has contributed to the surge of Central American minors and families at the border.
The amendment to the funding bill would have its immediate impact on the first step in the asylum process, called the "credible fear" interview. When an alien at a port of entry or in the custody of the Border Patrol expresses a fear of return to his home country, he is interviewed by a USCIS officer to determine whether the fear is credible and could lead to a successful asylum claim. If the alien's fear of return is deemed credible, he may then pursue an asylum claim, though many who are released into the United States to do so don't follow through, but simply disappear into the illegal population. Aliens have thus been coached by smugglers to claim asylum as a way of gaining access to the United States.
The attorney general's ruling, and the subsequent guidance from USCIS to its officers, has had an immediate effect at the border. For if fear of gangs or of an abusive partner — i.e., private violence rather than state or state-sanctioned violence — is no longer a grounds for asylum, then aliens asserting such fears no longer pass the credible-fear interview and can be turned away or deported immediately.
Were the Price-Yoder amendment to be signed into law, the attorney general's ruling would remain unchanged, but USCIS officers could not rely on it in making credible-fear determinations. It's not clear how that would work as a practical matter, but the clear goal is to ensure that any alien who claims "persecution" on the ineligible grounds would nonetheless be let into the United States. This would make regaining control of the border difficult, if not impossible — no matter how big the wall might be — because the Obama-era welcome mat for bogus asylum seekers would not only be restored but enshrined in statute, meaning smugglers could rely on it as a means of getting their customers past the Border Patrol and into the interior of the country.
Foreign workers. Two amendments expanding work-visa programs were also passed by the Appropriations Committee. The first determines that H-2A seasonal-farmworker visas no longer have to be seasonal. This was done to satisfy lobbyists for the dairy industry, which works year-round and wants to import cheap foreign labor through this unlimited visa program; it is stymied by the wording of the statute, which limits the visa to work "of a temporary or seasonal nature". The appropriations bill does not change the wording of the statute creating the farmworker visa; it merely says that workers will be admitted in FY 2019 under that provision of the law "without regard to whether such labor is, or services are, of a temporary or seasonal nature." It would result in large, ongoing increases in the number of these "temporary" foreign workers.
The other foreign-worker amendment affects the H-2B visa, which is the non-agricultural equivalent of the H-2A, used mainly by landscapers and hotels and restaurants. The amendment was just the latest round in lobbyists' relentless backroom push to exempt from the visa's numerical cap all those workers who came in prior years (in this case, in the prior two years). This was accomplished in the previous two budgets via a gutless gimmick — the DHS secretary would be authorized (wink, wink) to exempt returning workers from the cap if it seemed necessary. That way, congressmen wouldn't have their fingerprints on the increase. At least this time they chose not to hide behind the gimmick.
Country caps. Another amendment also benefits those on "temporary" visas, though it doesn't increase overall numbers. This measure (which has been floating around for years and was reintroduced in this Congress as H.R. 392) would eliminate the per-country cap for employment-based visas and increase it for family-based visas.
The per-country caps were enacted decades ago as a kind of circuit breaker, to prevent a handful of countries from monopolizing the immigration flow. Their effect today is to lengthen the wait for certain immigrants from India, China, the Philippines, and Mexico, compared with similarly situated immigrants from countries that account for less of the immigration flow. The caps result in a more diverse immigration flow.
The lobbying juice behind this change is Big Tech and the Indian "temporary" workers it has imported on H-1B and L visas. These are also ostensibly temporary visas, but are widely used as stepping-stones to permanent immigration. But so many of them are given out that the workers endure extended periods of de facto indentured servitude waiting for their numbers to come up. Eliminating the cap would speed up the issuance of their green cards, making the H-1B that much more attractive to potential low-paid tech workers and that much more useful for employers looking to replace their American workforce with foreigners. The flip side is that people from other countries, generally more highly skilled than the H-1Bs, would be crowded out as virtually all employment-based green cards went to Indians.
There's more! Not to drag this out, but there are more bad amendments that the GOP appropriators tacked on. Rep. Yoder himself co-sponsored a provision prohibiting the separation of children from parents unless "the parent has a criminal history, a communicable, disease, or is determined to be unfit or a danger to the child." This is a formal, statutory exemption from prosecution for illegal entry for all adults who bring children with them — and will thus result in even more border-jumpers bringing (or renting) children.
A seemingly pointless amendment prohibits the deportation of anyone in the lawless Deferred Action for Childhood Arrivals (DACA) program. It's pointless because DACA, by definition, prevents your deportation, and the only DACA beneficiaries who get deported are those who forfeit their status because of crimes. Since the amendment can have no actual result, the real point seems to be to codify Obama's illegal DACA power grab by getting Congress to acknowledge it and incorporate it into law.
And needless to say, the Republican-run Appropriations Committee did nothing to defund sanctuary cities.
It's not clear to me why Rep. Yoder, as Homeland Security subcommittee chairman, orchestrated this fiasco. He actually has a respectable career immigration grade from Numbers USA of B+; not as good as Ted Cruz's A+ but better than John Cornyn's C+. And, for including wall funding, Yoder was effusively endorsed by President Trump and rewarded with a ride on Air Force One — and the next day he sabotaged the president's immigration agenda.
Hill staff assured us that the most egregious items won't make it to the floor or will be killed in conference (if the bill even gets that far). But why take the chance? Will the Democratic appropriators stock their bills with Republican priorities if they take over next year?