DHS Oversight & Per Country Cap Elimination

Durbin Challenges Secretary Napolitano

Secretary of the Department of Homeland Security (DHS) Janet Napolitano will be appearing before the House Judiciary Committee for an oversight hearing that we suspect will focus on enforcement of immigration legislation and prosecutorial discretion with cases that make it before the immigration court. This is the fourth time these subjects have been raised before the committee. In the past, there have been attacks on DHS for being too weak on enforcement and for granting what has been argued to be a de facto amnesty. Napolitano has responded with a vigorous defense of her agency’s record.

John Morton issued his prosecutorial discretion memoranda more than four months ago, yet how and whether ICE will actually be able to implement the directives in the field is open for debate. Last week, Senator Dick Durbin (D-IL) was aggressively pushing the Secretary on this point:

“It’s been four months since the Morton memo was issued and two months since you announced the process for implementing it. The review of pending deportation cases, as I understand it, correct me if I’m wrong, has not yet begun. In fact, we do not even know what the criteria will be for the review and you have not issued guidance on who will be put into deportation proceedings in the future.”

Secretary Napolitano responded to Durbin by saying that DHS would be beginning a full review process within the next three weeks. At the House hearing, AILA hopes that the Secretary will give more extensive details than they have in the past which has amounted to a few sentences about this important policy development.

H.R. 3012, “Fairness for High-Skilled Immigrants Act”

The House Judiciary committee is planning to markup House Resolution 3012, known as the “Fairness for High-Skilled Immigrants Act” on Thursday of this week. Representative Jason Chaffetz (R-UT) along with Judiciary Chair Lamar Smith (R-TX) are the sponsors of this measure. The bill would dissolve the current 7%, per country caps on all employment-based (EB) green card categories over a  3 year transition period. If the bill passes it would create a strictly “first in, first out” system that will be based on priority dates within the employment-based green card system that currently exists. The measure would also increase the family-based per country cap from 7% to 15%. Lastly, the bill would get rid of the offset created by the Chinese Student Protection Act passed in 1992.

The 3-year transition period for the employment-based system is somewhat complicated. During the first year, the country that received the most employment-based visas in the previous fiscal year can receive up to 70% of all visas in the following year. The country that received the second most visas can receive up to 15% of all visas the following year. The remaining 15% would be saved for all other countries. That being said, no single country is eligible for more than one quarter of that total 15%.

The final two years of the transition period are identical to the first year, but only 10% is reserved for the remaining countries. In those years, the country receiving the second highest number of visas is eligible to receive up to 20% of the visas and the country receiving the most visas is able to receive up to 70%. Once the transition period ends, the per-country caps on employment-based visas will be totally eliminated.

While the new developments are complicated, the hope is that it will make the system more balanced and effective in the long term.