President-elect Barack Obama's selection of Arizona Governor Janet Napolitano as the next secretary of homeland security signals his willingness to make immigration policy concerns a high priority.
Napolitano, the popular governor of a border state, will lead an agency that encompasses the federal government's immigration-enforcement functions, as well as its main adjudicator of immigrant applications.
Napolitano, whose nomination requires Senate confirmation, has direct experience and substantive knowledge of immigration issues, which is why immigration policy experts and many immigrant advocates have lauded her nomination. But her record has led to vigorous speculation about what her appointment portends for the Obama administration's immigration policy.
As governor of Arizona, Napolitano was generally seen as a centrist as she supported immigration policies that angered those on the far left and the far right.
In August 2005, Napolitano declared a state of emergency over the lack of border security and subsequently deployed members of the Arizona National Guard to the border in order to curb outbreaks in violence. President George W. Bush later followed her example, deploying thousands of National Guard troops to the Southwestern border states.
Napolitano also signed into law the controversial Legal Arizona Workers Act, which requires all Arizona employers to use the federal E-Verify database to confirm that new employees are authorized to work. The law provides that Arizona businesses found to have "knowingly" hired unauthorized workers can lose their business licenses.
At the same time, Napolitano vetoed several immigration bills passed by the Arizona state legislature that she felt were "overly harsh and ineffective." These included a bill that would have allowed Arizona police to arrest unauthorized immigrants for trespassing, and legislation that would have cut off in-state tuition assistance for Arizona students who do not have legal status.
In a speech before the National Press Club in February 2007, Napolitano outlined her recommendations for federal improvements in U.S. immigration policy and border security. Stressing the need for reform within the current visa allocation system, Napolitano called for eliminating visa backlogs, expanding temporary worker programs, and increasing the number of visas for high-skilled workers, such as scientists and engineers.
Napolitano also advocated creating a "stringent" legalization program for unauthorized immigrants already in the United States if applicants learn English, pay a substantial fine, and pay back taxes.
Nevertheless, policy experts continue to speculate as to what a Napolitano-led Department of Homeland Security (DHS) will mean for the future of several of the border security and interior enforcement programs backed by Bush and his DHS secretary, Michael Chertoff.
Analysts have pointed out, for example, that one of Napolitano's responsibilities will be ensuring that all states comply with federal REAL ID requirements, which Napolitano herself strongly criticized. The law says all states must begin to issue REAL ID compliant licenses that include digital photographs and machine-readable technology. Residents of states that do not comply will be unable to use their licenses in order to enter federal buildings or board airplanes.
In June 2008, Napolitano signed into law a bill that prohibited the state of Arizona or the Arizona Department of Transportation from implementing the REAL ID requirements.
In addition, Napolitano has been highly critical of fencing being constructed along the Southwest border under a mandate from Congress. Napolitano has frequently stated that she feels physical fencing is less effective than technology-based "virtual fencing," such as radar, ground-based sensors, and aerial vehicles.
Many immigration policy experts are also predicting a decline in the frequency and severity of worksite immigration raids under the new Obama administration, with immigrant-rights organizations, House Speaker Nancy Pelosi, and others demanding their halt.
Following Congress's failure to pass comprehensive immigration reform during the summer of 2007, the Bush administration dramatically increased worksite enforcement operations and brought criminal charges including identity theft against the unauthorized workers arrested in some raids.
On the issue of worksite raids, Napolitano has stated that the federal government should increase penalties for the employers of unauthorized workers, rather than focusing on penalizing the workers.
Conspicuously absent from the discussion about Napolitano is any speculation as to what Obama's nominee for attorney general, Eric Holder, may mean for immigration reform. Though the attorney general continues to have significant immigration responsibilities — including interpretation and administration of immigration laws, adjudication of immigration cases, and jurisdiction over immigration judges — DHS has become the lead agency on immigration since its creation in 2003.
New H-2A Rules Intend to Fill Farm-Labor Shortages
The Bush administration, in its final weeks in office, has issued new regulations designed to ease farm-labor shortages by making significant changes to the H-2A agricultural guest worker program. While administration officials say the move is meant to streamline a petition process widely viewed as cumbersome, farm-labor advocates say the changes will depress wages, reduce employers' obligation to recruit U.S. workers, and limit federal oversight of potential abuses.
Under the new rules, employers seeking H-2A guest workers will only have to certify under oath that they are complying with the program's requirements.
Currently, employers seeking workers through the H-2A visa program have to obtain individual labor certifications for each worker from the Department of Labor (DOL) and the relevant state workforce agency that they looked for workers within the United States.
The new rules from DHS and DOL, which go into effect on January 16, 2009, also allow employers to petition for multiple, unnamed foreign workers on the same application, and change the formula for establishing H-2A workers' prevailing minimum wage.
DHS and DOL officials say the new rules will improve the accessibility of the H-2A program and increase the number of workers participating in the program from approximately 71,000 workers each year to 110,000.
But farm-labor advocates are critical of the new regulations, and other critics say the new rules will not fill the labor shortages that cause U.S. farmers to hire unauthorized immigrants.
DOL said in February 2008 it would revise the program and subsequently received 11,000 public comments.
Refugee Program Suspended after Reports of Fraud
The State Department suspended a refugee family-reunification program in late October because of concerns over widespread fraud, after its recent DNA testing pilot in Africa revealed that many of the program's participants were making false claims about family relationships.
The State Department is working with DHS to develop and implement new procedures for verifying family relationship claims and has said DNA testing will likely be included. The program will remain suspended until new measures are in place.
The decision affects all priority-3 (known as P-3) refugee applicants — those from eligible countries who are allowed to reunify with their family members who entered the United States as refugees.
Currently, citizens of 18 countries, including Afghanistan, Colombia, Cuba, Ethiopia, Iran, Iraq, Somalia, Sudan, and Zimbabwe, are eligible for the P-3 program. However, in recent years, more than 95 percent of P-3 program applicants have been African, according to the State Department.
In February 2008, the State Department began a pilot DNA testing program for P-3 applicants in Nairobi, Kenya, and later expanded the pilot to applicants in six other African countries. In about 86 percent of the cases tested, individuals claiming to be family members either refused to take the DNA test or their DNA did not match that of their claimed family member.
According to the State Department, about 36,000 people from Africa have arrived through the P-3 program since October 1, 2003.
Refugee advocates say the government's scientific approach does not take into account conflict situations in which children are adopted informally and "family" can include other people's lost children or orphans.
Number of Border Patrol Agents. U.S. Customs and Border Protection (CBP) now has 18,049 border patrol agents, double the number of agents the agency had in 2001, according to Department of Homeland Security (DHS) Secretary Michael Chertoff. In May 2006, President George W. Bush promised to double the Border Patrol's size in response to concerns that the Southwest border was not adequately enforced. He deployed 6,000 members of the National Guard to the Southwest border while CBP recruited and trained new agents. The National Guard ended its Border Patrol duties in the summer of 2008. DHS officials have stated that the Border Patrol's expansion has led to enhanced border security and lower levels of unauthorized immigration.
New Rule for Religious-Worker Visas. Religious organizations sponsoring applicants for religious-worker visas will have to comply with more stringent requirements meant to eliminate rampant fraud. Under the new rule, U.S. Citizenship and Immigration Services (USCIS) must approve a religious organization's petition before the religious worker can file a visa application. Also, USCIS will conduct on-site inspections of religious organizations petitioning for immigrant and nonimmigrant visa applicants. In 2005, USCIS's Office of Fraud Detection found that approximately one-third of applications for immigrant religious-worker visas were fraudulent.
Social Security "No-Match" Letters. U.S. District Court Judge Charles Breyer will not decide whether DHS can implement its controversial social security "no-match" rule until well after the Bush administration has left the White House, giving President-elect Barack Obama's administration an opportunity to comment on the issue when Obama takes office in January. In August 2007, DHS published a new rule on "no-match" letters from the Social Security Administration that advised employers to terminate an employee whose information did not match the government database if the employee could not resolve the discrepancy within 90 days. Breyer blocked implementation of the "no-match" rule in October 2007, and DHS reissued the "no-match" rule in October 2008 in response to Breyer's concerns.
Bracero Program Settlement. Mexican workers who participated in the "Bracero" guest worker program in the United States between 1942 and 1946 have until January 5, 2009, to submit claims for a one-time settlement payment of $3,500 from the Mexican government. The Bracero program, which ran from 1942 to 1964, brought millions of Mexicans to the United States for agricultural and railroad jobs. In the program's first four years, the Mexican government withheld 10 percent of the Bracero workers' wages in a savings fund that the workers were supposed to have access to when they returned to Mexico. In 2001, several former Bracero program workers sued the Mexican government, claiming they never received their withheld wages.
ICE Teleconferencing in Fairfax County, VA. Immigration and Customs Enforcement (ICE) will screen Fairfax County inmates suspected of immigration violations via video teleconferencing under a new agreement that allows ICE agents to question such individuals without the involvement of county police officers. Fairfax officials decided to implement teleconferencing after ICE denied the county's request to sign a memorandum of agreement (MOA) that would have allowed county sheriffs to enforce federal immigration law. Although ICE officials declined to comment on why Fairfax's request was denied, ICE has refused similar requests because of concern over their cost. As of November 2008, ICE had signed MOAs with 67 state and local law enforcement agencies.
Utah Guest Worker Program. The Utah State Legislature is considering a plan that would allow unauthorized immigrants in the state to sign up for a guest worker program provided they had not committed any major crimes and passed a health exam and a background check. Given that any state-run guest worker program would need federal government approval, it is extremely unlikely that Utah will actually implement the program. Arizona and Colorado have considered similar guest worker proposals, but neither has passed legislation. The Salt Lake City Chamber of Commerce proposed the guest worker program because of federal inaction on immigration and to meet Utah employers' demand for high- and low-skilled labor.
Rental Ordinance in Farmers Branch, TX. Farmers Branch did not turn over all documents related to its controversial 2006 ordinance prohibiting property rentals to unauthorized immigrants despite a court order, according to U.S. District Court Judge Bruce Priddy. The judge, who also found that the city failed to retain documents it was required to keep, has ordered Farmers Branch to hire a company specialized in electronic document retrieval at its own expense; the judge will oversee the retrieval process. Farmers Branch enacted the ordinance in November 2006, spurring several lawsuits. The city passed a new ordinance in early 2008 requiring all prospective tenants to get licenses from city authorities.