[House Report 112-275]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-275
======================================================================
SAFE FOR AMERICA ACT
_______
November 10, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 704]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 704) to amend the Immigration and Nationality Act to
eliminate the diversity immigrant program, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Performance Goals and Objectives................................. 17
Advisory on Earmarks............................................. 17
Section-by-Section Analysis...................................... 17
Changes in Existing Law Made by the Bill, as Reported............ 17
Dissenting Views................................................. 23
Purpose and Summary
H.R. 704 amends the Immigration and Nationality Act to
eliminate the diversity immigrant program.
Background and Need for the Legislation
As part of its consideration of legal immigration reform in
1990, Congress acted to ``further enhance and promote
diversity'' of immigrants. In the Immigration Act of 1990
(IMMACT 90), one of the ways Congress did so was by making
55,000 ``diversity'' immigrant visas available each year
beginning in October 1994. This program was called the DV
program.
The DV program is designed to increase diversity in the
U.S. immigrant population by providing nationals of countries
that have traditionally had low numbers of immigrants to the
United States the opportunity to apply for immigrant visas.
IMMACT 90 set forth extremely complicated formulas for
determining which aliens could qualify for the benefits of the
program.
Briefly stated, immigrant visas are apportioned among six
geographic regions, according to a formula based on total
immigrant admissions over the preceding 5-year period. Both
high- and low-admission regions are identified, and a greater
share of the available numbers is allocated to low-admission
regions. Nationals of specified high-admission countries are
excluded from the benefits of the program. No single country
may receive more than 7 percent of the worldwide total of DV
visa numbers.
Between 1995 and 2010, 785,695 diversity visas have been
issued.\1\
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\1\Information provided by the U.S. Department of State.
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For the DV-2011 application period, natives of the
following countries were ineligible to apply: Brazil, Canada,
China (mainland-born, excluding Hong Kong S.A.R. and Taiwan),
Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala,
Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines,
Poland, South Korea, United Kingdom (except Northern Ireland)
and its dependent territories, and Vietnam.
The DV program is also called the ``visa lottery'' because
the winners are determined through a computer-generated random
drawing.\2\ Approximately 12.1 million applications were
submitted for the DV-2011 program (16.5 million when derivative
immediate relatives are added). From the millions of qualifying
applicants, the State Department randomly selected 100,600
applications as ``selectees'' who may then apply for visas at
the consular offices nearest them.\3\
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\2\As the State Department website explains:
At the Kentucky Consular Center [KCC], all entries received
from each region will be individually numbered. After the
end of the registration period, a computer will randomly
select entries from among all the entries received for each
geographic region. Within each region, the first entry
randomly selected will be the first case registered, the
second entry selected the second registration, etc. All
entries received during the registration period will have
an equal chance of being selected within each region. When
an entry has been selected, the applicant will be sent a
notification letter by the [KCC], which will provide visa
application instructions. The [KCC] will continue to
process the case until those who are selected are
instructed to appear for visa interviews at a U.S. consular
office, or until those able to do so apply at a BCIS office
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in the United States for change of status.
\3\http://travel.state.gov/visa/immigrants/types/types_5073.html.
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At these offices, about 45 percent of the selectees fail to
meet the minimum educational or work experience or training
requirements, fail to supply the required medical information,
or fail to complete the additional required paperwork either
completely or on time. For the rest of the fiscal year after
the lottery takes place, the qualifying winners are issued
Diversity Visas on a first-come, first-served basis until the
requisite 50,000 are issued.\4\
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\4\Pursuant to 8 U.S.C. Sec. 1151(e), the actual number of
Diversity Visas is 55,000. However 5,000 of the visas are allocated for
use under the provisions of P.L. 105-100, the ``Nicaraguan Adjustment
and Central American Relief Act.''
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Most immigration to the United States is based upon family
relationship to U.S. citizens and permanent residents or the
requests of U.S. businesses. DV applicants, however, once
selected, can qualify on the basis of minimal levels of
education level and/or work experience. Like other immigrant
applicants, they are subject to being denied entry based on any
of the grounds of inadmissibility. If the applicant is
otherwise eligible, he only needs to demonstrate that he has
the equivalent of a U.S. high school education or possesses 2
years of work experience in an occupation that requires 2 years
of training or work experience within the 5 year period
immediately prior to the application.\5\
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\5\8 U.S.C. Sec. 1153(c)(2).
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There are five main criticisms of the DV program: 1) fraud,
2) national security concerns, 3) fairness, 4) visa issuance
deadlines and 5) program rationale.
The DV program is susceptible to fraud and manipulation.
That complaint was verified by a 2003 State Department Office
of Inspector General (OIG) Report, a 2007 Government
Accountability Office report and continuous reports from
consular officers. In 2003 the GAO stated, ``The DV program is
vulnerable to fraud committed by and against DV applications,
but State has not compiled comprehensive data on detected and
suspected fraudulent activity.''\6\
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\6\U.S. Government Accountability Office, Border Security: Fraud
Risks Complicate State's Ability to Manage Diversity Visa Program,
(2007) (GAO-07-1174).
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A DV applicant will be disqualified for the year of entry
if more than one application is filed for the applicant.
Nonetheless, it is commonplace for aliens to file multiple
applications for the lottery using different aliases. As the
OIG reported, a partial check done by the Kentucky Service
Center on applications filed in the DV-2003 lottery identified
364,000 duplicates. And for the DV-2012 program out of 19.7
initial entries, 1.2 million were immediately disqualified as
duplicates by exact match photo screening.\7\ And another
nearly 10% of the selectees were disqualified after secondary
photo screening technology found they had submitted multiple
applications.\8\
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\7\Information provided by Department of State.
\8\Id.
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Examples of this problem include an October 2001 incident
in which a New Jersey mailman falsified hundreds of visa
applications to bring his cousin from Bangladesh to the United
States. The man, dressed in his postal uniform, aroused
suspicions when he was seen dropping documents into several
mailboxes, instead of taking them out. When he was detained,
police found 185 applications for the visa lottery in his bag,
and he had allegedly already tried to mail 147 applications,
which were retrieved. He had purportedly tried to help his
cousin by using false addresses on the multiple applications.
Beyond violating our immigration laws and unfairly gaining
an advantage over other similarly situated aliens who play by
the rules, some of those who engage in such deception pose a
criminal or terrorist threat to the United States. The case of
Mekki Hamed Mekki, a Sudanese pilot who was under investigation
for possible al-Qaeda links and who was arrested in North
Carolina in September 2002, illustrates this point. In an
affidavit filed in Federal court, the FBI alleged that Mekki
had admitted submitting several forms with variations on his
name, date of birth, and place of birth to improve his chances
in the visa lottery. He was sentenced to 6 months in prison for
immigration fraud and ordered deported in March 2003.
If an immigrant who files under numerous aliases is
selected under one of those aliases, the alien must then
support his visa application with fraudulent documents. As OIG
found in a September 2003 report on the DV program, however:
``Identity fraud is endemic, and fraudulent documents are
commonplace. Many countries exercise poor control over their
vital records and identity documents, exacerbating the
potential for program abuse. In some countries, this control is
so poor that consular officers must assume that all travel,
identity, and civil documents are unreliable.''\9\ A 2007
General Accountability Office report found that ``Consular
officers at 6 posts reported that widespread use of fake
documents, such and birth certificates, marriage certificates,
and passports, presented challenges when verifying identities
of applicants and dependents.''\10\
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\9\U.S. Department of State, office of the Inspector General,
Memorandum Inspection Report: Diversity Visa Program, (Sept. 2003)
(Report Number ISP-CA-03-52), Pg. 2.
\10\U.S. Government Accountability Office, Border Security: Fraud
Risks Complicate State's Ability to Manage Diversity Visa Program,
(2007) (GAO-07-1174).
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OIG found that fraud is an ``on-going major program
issue.'' Specifically, OIG found that anti-fraud activities are
generally dominated by nonimmigrant visa fraud cases, and that
many embassies and consulates with significant DV issues,
therefore, do not routinely refer problem cases to their anti-
fraud units. Further, OIG found, some posts, such as U.S.
Embassy Accra (which is a major DV issuer) have no anti-fraud
officer.\11\
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\11\U.S. Department of State, office of the Inspector General,
Memorandum Inspection Report: Diversity Visa Program, (Sept. 2003)
(Report Number ISP-CA-03-52).
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This is not to say, however, that the State Department has
made no efforts to address fraud in the DV program. In 2004,
the State Department implemented an electronic registration
system (E-DV), which was designed to enhance the security of
the program. The primary reason for moving the program from a
paper-based to an electronic registration system was ``to
eliminate vulnerabilities related to the identity of the visa
applicant.'' The E-DV allows the State Department to look at
every entry, run facial recognition on them, and share data
with intelligence and law enforcement agencies. Further, the
State Department contends that ``posts fairly routinely
conducted investigations on bona fides of DV applicants,''
including verifying school certificates, employment, and
claimed relationships.\12\
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\12\Information provided by Department of State.
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While OIG did not reference these efforts in its September
2003 report, it noted that the Consular Affairs Bureau (CA) at
the State Department did not know how significant the DV fraud
problem was, and could not document the widespread belief that
certain countries' records are under such poor control that
their passports, identity documents, and vital records are so
unreliable as to be useless for visa purposes.\13\
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\13\U.S. Department of State, office of the Inspector General,
Memorandum Inspection Report: Diversity Visa Program, (Sept. 2003)
(Report Number ISP-CA-03-52).
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Unfortunately the OIG's report seemed to effect little
change in the DV program and the same problem exists years
later. The 2007 GAO report noted, ``Despite taking steps to
strengthen the DV program, State does not have a strategy to
address the pervasive fraud reported by some [consular]
posts.''\14\
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\14\U.S. Government Accountability Office, Border Security: Fraud
Risks Complicate State's Ability to Manage Diversity Visa Program,
(2007) (GAO-07-1174).
---------------------------------------------------------------------------
In addition to entry fraud, the visa lottery program has
spawned a cottage industry in the United States for sponsors
who falsely promise success in exchange for large sums of
money. This problem is so pervasive that the State Department's
media notice announcing electronic filing carried the following
``Important Notice'':
NO fee is charged to enter the annual DV program. The
U.S. Government employs no outside consultants or
private services to operate the DV program. Any
intermediaries or others who offer assistance to
prepare DV casework for applicants do so without the
authority or consent of the U.S. Government. Use of any
outside intermediary or assistance to prepare a DV
entry is entirely at the applicant's discretion.
A qualified entry submitted electronically directly by
an applicant has an equal chance of being selected by
the computer at the Kentucky Consular Center as does an
entry submitted electronically through a paid
intermediary who completes the entry for the applicant.
Every entry received during the lottery registration
period will have an equal random chance of being
selected within its region. However, receipt of more
than one entry per person will disqualify the person
from registration, regardless of the source of the
entry.
Illustrating this problem is the case of a company named
``USA Immigration Services'' (USAIS). On October 1, 2003, the
Federal Trade Commission (FTC) filed a lawsuit against the
company and its operators, alleging that they misled consumers
into believing they were affiliated with the United States
government, and that for a fee, they could help consumers
register through the DV lottery for a chance to apply for a
green card.\15\ According to the FTC, the defendants, who had
no connection to the Federal Government, misled aliens in a
variety of ways about the services they claimed to provide.
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\15\According to the FTC, using both keyword ``metatags'' and
express language on the websites, USAIS claimed to be either an
official agency of, or affiliated with, the U.S. Government. The
metatags typically led unwitting consumers to USAIS's sites on the
Internet through the use of search engines. The website featured an
official-looking eagle and billowing flag banner across the top of the
site, American iconic images (such as the Statue of Liberty, the flag,
and the Capitol), and the official seals and logos of--and links to--
USA Freedom Corps, the White House, and FirstGov on the home page.
Further, the defendants allegedly claimed to use actual government
telephone numbers that actually belong to the State Department. They
also listed a Washington, D.C. address that, in fact, was a commercial
mail store. Finally, they used terms such as ``Official U.S.
Immigration Forms'' to describe subjects they addressed.
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And the 2007 GAO report noted, ``At 5 of the 11 posts we
reviewed, consular officers reported that the majority of DV
applicants, lacking access to a computer or Internet savvy, use
`visa agents' to enter the lottery. Some agents take advantage
of DV applicants. . . .''\16\
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\16\U.S. Government Accountability Office, Border Security: Fraud
Risks Complicate State's Ability to Manage Diversity Visa Program,
(2007) (GAO-07-1174).
---------------------------------------------------------------------------
Perhaps the best confirmation of rampant fraud in the DV
program is the U.S. Government itself. The current homepages of
many State Department U.S. Embassy websites, for instance
London, Dublin and Cairo, include diversity visa ``Fraud
Alerts.'' And on June 20, 2011, U.S. Citizenship and
Immigration Services (USCIS), the agency responsible for
adjudicating DV petitions, sent out an email entitled, ``Email
Scam: Avoid Green Card Lottery Fraud!,'' that contained a link
to a USCIS blog entry. The blog stated in part, ``Have you or
someone you know recently received an e-mail claiming you've
won the Green Card lottery and asking you to send or wire
money? Don't fall for it--the sender is trying to steal your
money!''
At an April 5, 2011, hearing on the SAFE for America Act,
the former Deputy Assistant Secretary of State for Visa
Services, Tony Edson, testified about the many types of fraud
he and his colleagues saw in the program.
He stated that visa lottery fraud, ``includes . . .
multiple entries, fraudulent claims to education and work
experience, pop-up spouses or family members, relatives added
after the application is submitted, and false claims for
employment or financial support in the United States.''\17\ And
he noted that unscrupulous third-party agents often enroll
individuals in the visa lottery without the individual's
knowledge. If the person is selected for the lottery, the agent
then sells the ``winning'' visa lottery slot to the highest
bidder.
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\17\H.R. 704, the ``SAFE for America Act,'' Hearing Before the
Subcomm. on Immigration Policy and Enforcement of the House Comm. on
the Judiciary, 112th Cong. 31 (2011) (statement of Stephen A. Edson,
Former Deputy Assistant Secretary of State for Visa Services).
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The DV program poses a potential threat to the national
security, for a number of reasons. In fact, the 2007 GAO report
noted that, ``Difficulty in verifying identities has security-
based implications because State's security checks rely heavily
on name-based databases.''\18\ One of the main national
security weaknesses that experts have identified in the DV
program is the lack of restrictions on admissions. This plays
out in two ways.
---------------------------------------------------------------------------
\18\Id.
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First, there are few restrictions on the countries from
which applicants may come, and no security restrictions. By way
of contrast, aliens from countries designated as state sponsors
of terrorism cannot be issued nonimmigrant visas except in
limited circumstances.\19\ OIG determined that between two and
4 percent of all DV issuances are to nationals of countries
designated as state sponsors of terrorism (Cuba, Iran, Sudan
and Syria). For the DV-2011 lottery, 2,819 Iranians, 132
Syrians, 1,156 Sudanese and 406 Cubans were deemed eligible for
the visa lottery. In addition, thousands of individuals from
countries such as Libya, Afghanistan, Yemen and Nigeria were
also deemed eligible. The number of diversity visas actually
issued to individuals from countries designated as state
sponsors of terrorism were as follows:\20\
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\19\Section 306 of the Enhanced Border Security and Visa Entry
Reform Act of 2002 prohibits nonimmigrant visa issuance to aliens from
countries that are state sponsors of international terrorism unless it
is determined that such aliens do not pose a threat to the safety and
national security of the United States. The countries currently
designated as state sponsors of international terrorism are Cuba,
Sudan, Syria, and Iran.
\20\Information provided by the State Department.
LIran:
1,842
LSudan:
553
LSyria:
32
LCuba:
140
Second, under the program, successful applicants are chosen
at random. Consequently, those who win the DV lottery do not
necessarily have any ties to the United States, unlike other
visa categories, which rely on family or business ties. Critics
of the DV program have argued that family and business
relationships help ensure that immigrants entering the United
States have a stake in our country's success, and have the
advanced skills to contribute to our economy. Because DV
winners do not necessarily have such ties, critics have
asserted, the program could offer an opportunity for
individuals or groups who want to harm the United States, its
institutions, and its people to place terrorists in the United
States.
In addition to the openness of the program, the
susceptibility of the program to fraud exposes the United
States to terrorism. The Center for Immigration Studies (CIS)
has found that. ``The program is a national security
vulnerability, and has been used by terrorists and organized
criminals to not only enter the U.S., but bring others as
well.''\21\
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\21\Janice Kephart, Sen. Hatch's Proposal to Do Away with the
Diversity Visa Lottery, Center for Immigration Studies, Feb. 2011.
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Any potential terrorist who did win the DV lottery could
live here freely, and come and go with little scrutiny. In
fact, a number of immigrants who have been accused or convicted
in connection with terrorism plots have entered in this manner.
For instance, Hesham Hedayet, an Egyptian terrorist who killed
two and wounded several others at Los Angeles International
Airport on July 4, 2002, was a lawful permanent resident who
received his green card through the DV program. He had
originally entered as a visitor, and thereafter applied for
asylum. In his asylum application, he claimed that he had been
accused of being a terrorist by the Egyptian government. When
he failed to respond to the notice of intent to deny that
application, the former INS issued a charging document placing
him in deportation proceedings, but could not serve him. In
1996, Hedayet's wife was selected for the visa lottery,
allowing Hedayet to adjust his status. He was a lawful
permanent resident at the time of the 2002 attack.
Similarly, in August 2002, Pakistani national Imran Mandhai
pleaded guilty to conspiring to destroy buildings affecting
interstate commerce by means of fire or explosives. He entered
the United States with his parents, who had been selected for
the visa lottery in 1998.
The program is also unfair because it moves 50,000 new
immigrants ahead of family and employer-sponsored immigrants
who may have waited many years for the opportunity to immigrate
to the U.S. This is significant considering, for example, that
family fourth-preference visa applicants from the Philippines
are currently oversubscribed to January 15, 1988, meaning that
only those aliens in this class for whom visa petitions were
filed before such date can come to the United States.
Finally, it is not reasonable to continue a program in
which applicants are randomly selected. Further, some have
argued that the DV program no longer meets its stated purposes.
The United States should select, out of the many millions
of persons who would like to immigrate to the U.S., those who
most contribute to the national interest. In addition to
persons who want to unite with family members in the U.S.,
there are a large number of individuals with marketable skills
who would immigrate to the United States if given the
opportunity. Preference should be given to those aliens who
would make a large and positive commitment to the U.S. economy.
The program's requirements are so low that they do nothing to
ensure that the applicants have the skills needed to compete in
the U.S. economy, noting that the final selection is based on
luck, not skill.
Hearings
The Committee's Subcommittee on Immigration Policy and
Enforcement held 1 day of hearings on H.R. 704, to eliminate
the diversity immigration program, on April 5, 2011. Testimony
was received from the Honorable Bob Goodlatte (R-VA); Mr.
Stephan A. Edson, former Deputy Assistant Secretary of State
for Visa Services; Ms. Janice Kephart, Director of National
Security Policy at the Center for Immigration Studies; and
Ambassador Johnny Young of the U.S. Conference of Catholic
Bishops.
Committee Consideration
On July 20, 2011, the Committee met in open session and
ordered the bill H.R. 704 favorably reported without amendment,
by a rollcall vote of 19 to 11, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following recorded votes occurred during the Committee's
consideration of H.R. 704.
1. An amendment offered by Ms. Jackson Lee to strike the
provisions of H.R. 704 and replace them with a requirement that
the Secretaries of Homeland Security and State report to
Congress regarding how to eliminate the potential for fraud and
other security risks in the diversity program. Defeated 12 to
14.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin.....................................................
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 12 14
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2. An amendment offered by Ms. Lofgren to replace the
provisions of H.R. 704 limiting the program only to individuals
with approved family-based immigrant petitions, and requiring
that the visas are issued by order of priority date. Defeated
11 to 19.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 11 19
----------------------------------------------------------------------------------------------------------------
3. A vote on final passage of H.R. 704. Reported favorably
out of Committee 19 to 11.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 19 11
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 704, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 4, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 704, the
``Security and Fairness Enhancement for America Act of 2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jonathan
Morancy, who can be reached at 226-2820.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 704--Security and Fairness Enhancement for America Act of 2011.
As ordered reported by the House Committee on the Judiciary on
July 21, 2011
SUMMARY
H.R. 704 would eliminate the diversity visa program.
Diversity visas go to people from countries that U.S.
Citizenship and Immigration Services (USCIS) has determined
have had low ratios of immigrants admitted under other sections
of immigration law. Currently, 55,000 diversity visas are
available each year. Eliminating the diversity visa program
would lower the number of immigrants entering the country who
would become legal permanent residents (LPRs) by about 460,000
during the 2012-2021 period, CBO estimates. That decline in the
number of LPRs would decrease spending on needs-based and
social-insurance programs and would reduce the fees collected
from immigrants.
CBO estimates that enacting H.R. 704 would decrease direct
spending by $1.3 billion and would decrease revenues by about
$0.1 billion over the 2012-2021 period. In addition, CBO
estimates implementing the bill would reduce discretionary
spending by $30 million over the 2012-2021 period, assuming
appropriations are reduced by the estimated amounts.
Because enacting the legislation would affect direct
spending and revenues, pay-as-you-go procedures apply.
H.R. 704 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 704 is shown in the
following table. The costs of this legislation fall within
budget functions 150 (international affairs), 500 (education,
training, employment, and social services), 550 (health), 570
(Medicare), 600 (income security), 650 (Social Security), and
750 (administration of justice).
By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2012-2016 2012-2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
On-Budget Changes
Medicaid
Estimated Budget
Authority 0 -5 -18 -36 -55 -77 -114 -170 -231 -301 -114 -1,007
Estimated Outlays 0 -5 -18 -36 -55 -77 -114 -170 -231 -301 -114 -1,007
SNAP
Estimated Budget Authority 0 -1 -4 -6 -8 -11 -22 -34 -47 -60 -19 -193
Estimated Outlays 0 -1 -4 -6 -8 -11 -22 -34 -47 -60 -19 -193
Pell Grants
Estimated Budget Authority 0 * -1 -1 -2 -2 -3 -3 -4 -4 -4 -20
Estimated Outlays 0 * * -1 -1 -2 -2 -3 -3 -4 -2 -16
Supplemental Security
Income
Estimated Budget
Authority 0 * * * -1 -1 -2 -3 -4 -5 -1 -16
Estimated Outlays 0 * * * -1 -1 -2 -3 -4 -5 -1 -16
Medicare
Estimated Budget
Authority 0 0 0 0 0 * -1 -1 -3 -5 0 -10
Estimated Outlays 0 0 0 0 0 * -1 -1 -3 -5 0 -10
Subtotal-On-Budget
Effects
Estimated Budget
Authority 0 -6 -23 -43 -66 -91 -142 -211 -289 -375 -138 -1,246
Estimated Outlays 0 -6 -22 -43 -65 -91 -141 -211 -288 -375 -136 -1,242
Off-Budget Changes
Social Security
Estimated Budget
Authority 0 0 0 * -1 -2 -5 -11 -25 -53 -1 -97
Estimated Outlays 0 0 0 * -1 -2 -5 -11 -24 -50 -1 -93
Total Changes in Direct
Spending
Estimated Budget
Authority 0 -6 -23 -43 -67 -93 -147 -222 -314 -428 -139 -1,343
Estimated Outlays 0 -6 -22 -43 -66 -93 -146 -222 -312 -425 -137 -1,335
CHANGES IN REVENUES
Visa Fees 0 -15 -15 -15 -15 -15 -15 -15 -15 -15 -60 -135
NET INCREASE OR DECREASE (-) IN THE DEFICIT FROM CHANGES IN DIRECT SPENDING AND REVENUES
Net Changes in Deficits 0 9 -7 -28 -51 -78 -131 -207 -297 -410 -77 -1,200
On-Budget Effects 0 9 -7 -28 -50 -76 -126 -196 -273 -360 -76 -1,107
Off-Budget Effects 0 0 0 * -1 -2 -5 -11 -24 -50 -1 -93
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Pell Grants\1\
Estimated Authorization
Level 0 -1 -3 -4 -6 -7 -9 0 0 0 -14 -30
Estimated Outlays 0 * -1 -3 -5 -6 -8 -7 * 0 -9 -30
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Components may not sum to totals due to rounding; SNAP = Supplemental Nutrition Assistance Program; * = between -$500,000 and 0.
1. The Pell Grant program is currently authorized through 2018.
BASIS OF ESTIMATE
For this estimate, CBO assumes the bill will be enacted
near the start of calendar year 2012 and that the restrictions
on issuing new visas will affect anyone who had applied for the
diversity lottery held in fiscal year 2012. Under current law,
55,000 visas are available each year under the diversity visa
program. Since 1999, up to 5,000 of those have been reserved
each year for unsuccessful seekers of asylum from countries
such as El Salvador and Guatemala. Thus, the Department of
State processes about 50,000 immigrant visas for natives of
foreign states that USCIS determines have had a low ratio of
immigrants admitted under other sections of immigration law.
The immigrants are selected randomly by the Secretary of
State from among persons who have applied to a special lottery
for the visas. Persons apply in one fiscal year for visas to be
issued in the coming fiscal year. Applicants must meet minimum
requirements for education or work experience and otherwise be
eligible for immigrant visas as specified in the Immigration
and Nationality Act. Those selected in the diversity lottery
must obtain their visas by the end of the fiscal year covered
by the lottery.
By eliminating the diversity visa lottery, CBO estimates
that H.R. 704 would decrease the number of immigrants who
become legal permanent residents by about 51,000 each year (not
all persons selected immigrate to the United States within the
period in which the visas are valid). Fewer legal permanent
residents would, over time, lower the number of persons
eligible for Medicaid, the Supplemental Nutrition Assistance
Program (SNAP), and other needs-based and social-insurance
programs. Because the first group affected by this bill would
be those who would apply during fiscal year 2012 for arrival
during fiscal year 2013, the effects would not begin until
fiscal year 2013.
CBO estimates that under the bill, the number of LPRs will
decline by about 460,000 over the 10-year period. A decline in
LPRs would result in savings for many programs as detailed
below.
Direct Spending
With the exception of Social Security, all of the budgetary
effects are on-budget.
Medicaid. By decreasing the number of LPRs, enacting H.R.
704 would reduce the number of individuals who enroll in the
Medicaid program. Under Medicaid law, immigrants entering the
United States are not eligible to receive Medicaid coverage for
five years after entering the country, except for emergency
Medicaid. (Current law does allow those immigrants who are
children or pregnant women that would otherwise qualify for
Medicaid to obtain coverage at state option before they have
been in the country for five years.) Some of those immigrants
(mainly children, pregnant women, and some disabled people)
qualify for Medicaid five years after they enter the United
States. Under the bill, CBO estimates that by 2021 about 64,000
fewer people would receive Medicaid and that Federal spending
for Medicaid would decline by about $1 billion over the 2012-
2021 period.
Supplemental Nutrition Assistance Program. Legal permanent
residents who are adults and who meet the necessary
qualifications are eligible for SNAP benefits after a 5-year
waiting period (those under the age of 18 who qualify are
automatically eligible). Based on the estimated decline in LPRs
and data from the Current Population Survey, CBO estimates that
by 2021 about 40,000 fewer people would participate in SNAP.
Accordingly, CBO estimates that enacting the bill would lower
costs for SNAP by $193 million over the 2012-2021 period.
Pell Grants. As discussed below under the heading
``Spending Subject to Appropriation,'' CBO projects that H.R.
704 would reduce the number of students eligible for Pell
grants. Though most Pell grant funding is discretionary, CBO
estimates enacting the bill would decrease direct spending by
$16 million over the 2012-2021 period for the mandatory portion
of the Pell Grant program. (The bill would have an
insignificant effect on direct spending for student loans.)
Supplemental Security Income. Based on information from the
Current Population Survey, CBO projects that under current law
fewer than 100 immigrants affected by H.R. 704 would have
naturalized and received Supplemental Security Income (SSI)
benefits based on old age or disability during the 2012-2021
period. In addition, CBO expects that around 1 percent of the
citizen-children who would have been born in the United States
to those immigrants affected by H.R. 704 would have qualified
for SSI as the result of birth defects or other severe
disabilities. In total, CBO estimates that enacting H.R. 704
would reduce SSI outlays by $16 million over the 2012-2021
period.
Social Security and Medicare. Few of the individuals
affected by H.R. 704 would have been able to work long enough
to become eligible for Social Security retirement benefits or
Medicare (based on age) within the 2012-2021 period under
current law, but many could earn eligibility for Social
Security Disability Insurance over that period. Based on
information from the Current Population Survey, CBO projects
that under the bill, about 1,200 fewer people would receive
Social Security benefits (primarily for disability insurance)
by 2021. Thus, CBO estimates that enacting H.R. 704 would
reduce Social Security outlays by $93 million (which are off-
budget) and Medicare outlays by $10 million (which are on-
budget) over the 2012-2021 period.
Revenues and Offsetting Receipts
Applicants do not pay a fee for submitting an application
to the Department of State for the diversity lottery. The visa-
lottery winners must pay a $305 immigrant visa application
processing fee. That visa fee is a revenue and is not available
to be spent. CBO estimates that eliminating the diversity visa
program would decrease revenues by about $15 million a year,
totaling $135 million over the 2012-2021 period.
USCIS currently charges fees totaling about $1,000 to
register each selected applicant as a permanent U.S. resident.
CBO estimates that CIS collects and spends about $50 million
annually in fees from diversity immigrants--a small fraction of
more than $2 billion in fees the agency collects and spends
each year to administer programs relating to the entry of
aliens. CBO estimates that eliminating the diversity visa
program would reduce fee collections by about $50 million
annually, but that direct spending also would decline by an
equivalent amount; thus, enacting the bill would have no
significant effect on net direct spending for USCIS.
Spending Subject to Appropriation
Pell Grants. Using data from the Congressional Research
Service and the Department of Education, CBO projects that H.R.
704 would reduce the number of students eligible for Pell
grants and student loans by a total that grows from several
hundred students in fiscal year 2013 to several thousand
students in fiscal year 2021. The bulk of funding for Pell
grants is discretionary. Assuming appropriations are reduced by
the estimated amounts and a maximum discretionary award level
of $4,860 as in the most recently enacted appropriations act,
CBO estimates the bill would reduce discretionary costs by $9
million over the 2012-2016 period, and $30 million over the
2012-2021 period.
Offsetting Collections. The visa-lottery winners (discussed
above) also must pay a $440 processing fee to the Department of
State. That processing fee generates about $24 million a year
in offsetting collections, which are a credit against
discretionary spending. Implementing the bill would lower
collections by the Department of State, but spending also would
decline by the amount of forgone collections; thus, there would
be no significant effect on discretionary spending for the
Department of State.
PAY-AS-YOU-GO CONSIDERATIONS
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays and
revenues that are subject to those pay-as-you-go procedures are
shown in the following table. Only on-budget changes to outlays
or revenues are subject to pay-as-you-go procedures.
_______________________________________________________________________
CBO Estimate of Pay-As-You-Go Effects for H.R. 704, the ``Security and
Fairness Enhancement for America Act of 2011,'' as ordered reported by
the House Committee on the Judiciary on July 21, 2011
_______________________________________________________________________
By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2012-2016 2012-2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE ON-BUDGET DEFICIT
Statutory Pay-As-You-Go Impact 0 9 -7 -28 -50 -76 -126 -196 -273 -360 -76 -1,107
Memorandum:
Change in Outlays 0 -6 -22 -43 -65 -91 -141 -211 -288 -375 -136 -1,242
Change in Revenues 0 -15 -15 -15 -15 -15 -15 -15 -15 -15 -60 -135
--------------------------------------------------------------------------------------------------------------------------------------------------------
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 704 contains no intergovernmental or private-sector
mandates as defined in UMRA. The bill would reduce the number
of legal permanent residents eligible for Medicaid assistance.
Since a portion of Medicaid is paid for by state governments,
CBO estimates that state spending on the program would decline
by about $750 million over the 2012-2021 period. The bill
contains no private-sector mandates.
ESTIMATE PREPARED BY:
Federal Costs: Jonathan Morancy, Kirstin Nelson, Kathleen
FitzGerald, David Rafferty,
Mark Grabowicz, Sunita D'Monte, and Justin Humphrey
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper-Bach
ESTIMATE APPROVED BY:
Peter H. Fontaine
Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
704, amends the Immigration and Nationality Act to eliminate
the diversity immigrant program.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 704 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Security and Fairness Enhancement for
America Act of 2011,'' or the ``SAFE for America Act.''
Sec. 2. Elimination of Diversity Immigrant Program. Section
2 amends sections 201, 203 and 204 of the Immigration and
Nationality Act to strike references to the diversity immigrant
program.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
Sec. 201. (a) In General.--Exclusive of aliens described in
subsection (b), aliens born in a foreign state or dependent
area who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United
States for permanent residence are limited to--
(1) family-sponsored immigrants described in section
203(a) (or who are admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent under section 203(a)) in a number
not to exceed in any fiscal year the number specified
in subsection (c) for that year, and not to exceed in
any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection
for all of such fiscal year; and
(2) employment-based immigrants described in section
203(b) (or who are admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent under section 203(b)), in a number
not to exceed in any fiscal year the number specified
in subsection (d) for that year, and not to exceed in
any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection
for all of such fiscal year[; and].
[(3) for fiscal years beginning with fiscal year
1995, diversity immigrants described in section 203(c)
(or who are admitted under section 211(a) on the basis
of a prior issuance of a visa to their accompanying
parent under section 203(c)) in a number not to exceed
in any fiscal year the number specified in subsection
(e) for that year, and not to exceed in any of the
first 3 quarters of any fiscal year 27 percent of the
worldwide level under such subsection for all of such
fiscal year.]
* * * * * * *
[(e) Worldwide Level of Diversity Immigrants.--The worldwide
level of diversity immigrants is equal to 55,000 for each
fiscal year.]
* * * * * * *
ALLOCATION OF IMMIGRANT VISAS
Sec. 203. (a) * * *
* * * * * * *
[(c) Diversity Immigrants.--
[(1) In general.--Except as provided in paragraph
(2), aliens subject to the worldwide level specified in
section 201(e) for diversity immigrants shall be
allotted visas each fiscal year as follows:
[(A) Determination of preference
immigration.--The Attorney General shall
determine for the most recent previous 5-
fiscal-year period for which data are
available, the total number of aliens who are
natives of each foreign state and who (i) were
admitted or otherwise provided lawful permanent
resident status (other than under this
subsection) and (ii) were subject to the
numerical limitations of section 201(a) (other
than paragraph (3) thereof) or who were
admitted or otherwise provided lawful permanent
resident status as an immediate relative or
other alien described in section 201(b)(2).
[(B) Identification of high-admission and
low-admission regions and high-admission and
low-admission states.--The Attorney General--
[(i) shall identify--
[(I) each region (each in
this paragraph referred to as a
``high-admission region'') for
which the total of the numbers
determined under subparagraph
(A) for states in the region is
greater than \1/6\ of the total
of all such numbers, and
[(II) each other region (each
in this paragraph referred to
as a ``low-admission region'');
and
[(ii) shall identify--
[(I) each foreign state for
which the number determined
under subparagraph (A) is
greater than 50,000 (each such
state in this paragraph
referred to as a ``high-
admission state''), and
[(II) each other foreign
state (each such state in this
paragraph referred to as a
``low-admission state'').
[(C) Determination of percentage of worldwide
immigration attributable to high-admission
regions.--The Attorney General shall determine
the percentage of the total of the numbers
determined under subparagraph (A) that are
numbers for foreign states in high-admission
regions.
[(D) Determination of regional populations
excluding high-admission states and ratios of
populations of regions within low-admission
regions and high-admission regions.--The
Attorney General shall determine--
[(i) based on available estimates for
each region, the total population of
each region not including the
population of any high-admission state;
[(ii) for each low-admission region,
the ratio of the population of the
region determined under clause (i) to
the total of the populations determined
under such clause for all the low-
admission regions; and
[(iii) for each high-admission
region, the ratio of the population of
the region determined under clause (i)
to the total of the populations
determined under such clause for all
the high-admission regions.
[(E) Distribution of visas.--
[(i) No visas for natives of high-
admission states.--The percentage of
visas made available under this
paragraph to natives of a high-
admission state is 0.
[(ii) For low-admission states in
low-admission regions.--Subject to
clauses (iv) and (v), the percentage of
visas made available under this
paragraph to natives (other than
natives of a high-admission state) in a
low-admission region is the product
of--
[(I) the percentage
determined under subparagraph
(C), and
[(II) the population ratio
for that region determined
under subparagraph (D)(ii).
[(iii) For low-admission states in
high-admission regions.--Subject to
clauses (iv) and (v), the percentage of
visas made available under this
paragraph to natives (other than
natives of a high-admission state) in a
high-admission region is the product
of--
[(I) 100 percent minus the
percentage determined under
subparagraph (C), and
[(II) the population ratio
for that region determined
under subparagraph (D)(iii).
[(iv) Redistribution of unused visa
numbers.--If the Secretary of State
estimates that the number of immigrant
visas to be issued to natives in any
region for a fiscal year under this
paragraph is less than the number of
immigrant visas made available to such
natives under this paragraph for the
fiscal year, subject to clause (v), the
excess visa numbers shall be made
available to natives (other than
natives of a high-admission state) of
the other regions in proportion to the
percentages otherwise specified in
clauses (ii) and (iii).
[(v) Limitation on visas for natives
of a single foreign state.--The
percentage of visas made available
under this paragraph to natives of any
single foreign state for any fiscal
year shall not exceed 7 percent.
[(F) Region defined.--Only for purposes of
administering the diversity program under this
subsection, Northern Ireland shall be treated
as a separate foreign state, each colony or
other component or dependent area of a foreign
state overseas from the foreign state shall be
treated as part of the foreign state, and the
areas described in each of the following
clauses shall be considered to be a separate
region:
[(i) Africa.
[(ii) Asia.
[(iii) Europe.
[(iv) North America (other than
Mexico).
[(v) Oceania.
[(vi) South America, Mexico, Central
America, and the Caribbean.
[(2) Requirement of education or work experience.--An
alien is not eligible for a visa under this subsection
unless the alien--
[(A) has at least a high school education or
its equivalent, or
[(B) has, within 5 years of the date of
application for a visa under this subsection,
at least 2 years of work experience in an
occupation which requires at least 2 years of
training or experience.
[(3) Maintenance of information.--The Secretary of
State shall maintain information on the age,
occupation, education level, and other relevant
characteristics of immigrants issued visas under this
subsection.]
Treatment of Family Members
(d) Treatment of Family Members.--A spouse or child as
defined in subparagraph (A), (B), (C), (D), or (E) of section
101(b)(1) shall, if not otherwise entitled to an immigrant
status and the immediate issuance of a visa under subsection
[(a), (b), or (c),] (a) or (b), be entitled to the same status,
and the same order of consideration provided in the respective
subsection, if accompanying or following to join, the spouse or
parent.
Order of Consideration
(e) Order of Consideration.--(1) * * *
[(2) Immigrant visa numbers made available under subsection
(c) (relating to diversity immigrants) shall be issued to
eligible qualified immigrants strictly in a random order
established by the Secretary of State for the fiscal year
involved.]
[(3)] (2) Waiting lists of applicants for visas under this
section shall be maintained in accordance with regulations
prescribed by the Secretary of State.
Authorization for Issuance
(f) Authorization for Issuance.--In the case of any alien
claiming in his application for an immigrant visa to be
described in section 201(b)(2) or in subsection [(a), (b), or
(c)] (a) or (b) of this section, the consular officer shall not
grant such status until he has been authorized to do so as
provided by section 204.
Lists
(g) Lists.--For purposes of carrying out the Secretary's
responsibilities in the orderly administration of this section,
the Secretary of State may make reasonable estimates of the
anticipated numbers of visas to be issued during any quarter of
any fiscal year within each of the categories under subsections
[(a), (b), and (c)] (a) and (b) and to rely upon such estimates
in authorizing the issuance of visas. The Secretary of State
shall terminate the registration of any alien who fails to
apply for an immigrant visa within one year following
notification to the alien of the availability of such visa, but
the Secretary shall reinstate the registration of any such
alien who establishes within 2 years following the date of
notification of the availability of such visa that such failure
to apply was due to circumstances beyond the alien's control.
* * * * * * *
PROCEDURE FOR GRANTING IMMIGRANT STATUS
Sec. 204. (a)(1)(A) * * *
* * * * * * *
[(I)(i)Any alien desiring to be provided an immigrant visa
under section 203(c) may file a petition at the place and time
determined by the Secretary of State by regulation. Only one
such petition may be filed by an alien with respect to any
petitioning period established. If more than one petition is
submitted all such petitions submitted for such period by the
alien shall be voided.
[(ii)(I)The Secretary of State shall designate a period for
the filing of petitions with respect to visas which may be
issued under section 203(c) for the fiscal year beginning after
the end of the period.
[(II) Aliens who qualify, through random selection, for a
visa under section 203(c) shall remain eligible to receive such
visa only through the end of the specific fiscal year for which
they were selected.
[(III) The Secretary of State shall prescribe such
regulations as may be necessary to carry out this clause.
[(iii) A petition under this subparagraph shall be in such
form as the Secretary of State may by regulation prescribe and
shall contain such information and be supported by such
documentary evidence as the Secretary of State may require.]
* * * * * * *
(e) Nothing in this section shall be construed to entitle an
immigrant, in behalf of whom a petition under this section is
approved, to be admitted the United States as an immigrant
under subsection [(a), (b), or (c)] (a) or (b) of section 203
or as an immediate relative under section 201(b) if upon his
arrival at a port of entry in the United States he is found not
to be entitled to such classification.
* * * * * * *
Dissenting Views
I. INTRODUCTION
Our current immigration system revolves heavily around
family- and employment-based immigration. For persons who lack
such existing familial ties or special skills, the only
opportunity to immigrate to the United States is the diversity
visa program (DV program), which provides a small, but
important opportunity for persons who come from countries that
are otherwise poorly represented in our immigration system to
obtain immigrant visas.
When the DV program was created in 1990, it was championed
by Sen. Edward Kennedy (D-MA) and Rep. Peter Rodino (D-NJ), who
were concerned that our largely family-based immigration system
would disadvantage immigrants of Irish and Italian descent.\1\
In recent years, African immigrants have comprised about two-
fifths of the DV program's beneficiaries, but account for only
3% of family- and employment-based immigrants.\2\
---------------------------------------------------------------------------
\1\Unofficial Tr. of Markup of H.R. 704, the Security and Fairness
Enhancement for America Act, by the H. Comm. on Judiciary, 112th Cong.
32-33 (2011) [hereinafter Markup Transcript], available at http://
judiciary.house.gov/hearings/pdf/7%2020%2011%20HR%20704%20HR%
201550%20HR%202076%20HR%20963%20HR%201059%20HR%202552.pdf.
\2\U.S. Government Accountability Office, Border Security: Fraud
Risks Complicate State's Ability to Manage Diversity Visa Program, GAO-
07-1174 at 13 (2007) [hereinafter GAO Report].
---------------------------------------------------------------------------
Although the Majority charges that the DV program ``is an
open invitation for fraud and a jackpot for terrorists,''\3\
the Government Accountability Office (GAO) ``found no
documented evidence that DV immigrants . . . posed a terrorist
or other threat.''\4\ And, where security and other
programmatic weaknesses have been identified, the State
Department has made major improvements, such as converting to
an electronic application process, requiring the submission of
digital photographs for facial recognition analysis, ending the
practice of notifying winners by mail, and increasing outreach
and education to applicants.\5\
---------------------------------------------------------------------------
\3\See Markup Transcript at 7.
\4\See GAO Report at 26.
\5\Safe for America Act: Hearing on H.R. 704 Before the H. Subcomm.
on Immigration Policy and Enforcement of the H. Comm. on the Judiciary,
112th Cong. 22, 126-27 (2011) [hereinafter H.R. 704 Hearing].
---------------------------------------------------------------------------
The short title of H.R. 704--the ``Security and Fairness
Enhancement for America Act'' or the ``SAFE for America Act''--
is classic Orwellian ``newspeak'' for a bill that enhances
neither security nor fairness in our immigration system.
Rather, the bill eliminates the DV program and, as a result,
dramatically and adversely changes the face of immigration to
the United States. Eliminating the program would effectively
end legal immigration from large swathes of the globe and
undercut a significant foreign policy goal, namely, sustaining
the American dream in parts of the world where winning the DV
lottery represents the only realistic opportunity for
immigrating to the United States. For a program proven to
provide significant benefits to the Nation, the response to
lingering concerns over fraud and national security risks
should be to make further improvements to fix the program, not
to eliminate it.
Moreover, when our family- and employment-based immigration
programs are suffering from substantial, sometimes decades-
long, backlogs due to insufficient numbers of visas, it makes
no sense to simply eliminate the DV program's immigrant visas
without re-allocating the visas to ameliorate existing backlogs
or otherwise strengthen our economy.\6\ During consideration of
the bill, the Committee debated an amendment offered jointly by
Rep. Zoe Lofgren (D-CA) and Rep. Howard Berman (D-CA) that
would have used these visas to continue to promote diversity
while also helping to reduce our backlogs in the family-based
immigration system, but the Majority voted the amendment
down.\7\ Another amendment offered by Reps. Lofgren and Berman
that would have re-allocated the 55,000 immigrant visas
associated with the DV program to the existing family- and
employment-based immigration systems, in an effort to reduce
the extraordinary backlogs that the bill's sponsor himself has
complained of, was ruled non-germane by the Chairman of the
Judiciary Committee.\8\ As reported by the Committee, H.R. 704
is an attack on legal immigration, on diversity in the United
States, and on families. It is opposed by the United States
Conference of Catholic Bishops, the National Immigration Forum,
and Sen. Charles Schumer (D-NY), who submitted a letter in
opposition to the bill at the Subcommittee's legislative
hearing.\9\
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\6\The merit of such a re-allocation has support from at least one
Member of the Committee's Majority. Rep. Darrell Issa (R-CA) introduced
H.R. 43 to eliminate the DV program and re-allocate its visas to
certain employment-based immigrants with advanced degrees obtained in
the United States. See H.R. 43, 112th Cong. (2011).
\7\See Markup Transcript at 48-61.
\8\Id. at 61-64.
\9\Letter from Sen. Charles E. Schumer, Chairman, Senate Judiciary
Subcommittee on Immigration, Refugees and Border Security, to Rep.
Elton Gallegly & Rep. Zoe Lofgren (Apr. 5, 2011) (on file with the H.
Comm. on the Judiciary, Democratic Staff) [hereinafter Sen. Schumer
Letter]; H.R. 704 Hearing (statement of Ambassador Johnny Young,
Executive Director, Migration and Refugee Services, United States
Conference of Catholic Bishops); Id. (statement of the National
Immigration Forum) (Apr. 5, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff).
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For these reasons and those discussed below, we
respectfully dissent and urge our colleagues to reject this
anti-immigrant measure. These dissenting views provide
background on the DV program and the bill and respond to the
flawed criticisms of the DV program that have motivated this
proposed legislation.
II. BACKGROUND ON H.R. 704
H.R. 704 eliminates the DV program, which was first created
by Congress in 1990 to stimulate ``new seed'' immigration. Our
current immigration system, created in 1965, was preceded by
national origin quotas that heavily favored immigrants from
countries whose citizens had previously emigrated to the United
States, largely from Western Europe. Prior to the creation of
the DV program, the system's emphasis on the existence of close
familial ties as a basis for receiving immigrant visas led to a
concentration of immigration from a handful of source
countries, despite the fact that the prior national origin
quota system had been abolished. Because this approach alone
would necessarily limit our ability to grow and sustain a
diverse nation, the DV program created an important and
necessary balance to this concentration.
Under the DV program, 50,000 immigrant visas\10\ are made
available annually to immigrants from otherwise under-
represented countries, as determined by a statutorily mandated
formula.\11\ Since 1995, approximately 785,000 diversity visas
have been issued. In order to be eligible for an immigrant visa
under the DV program, a person must have a high school
education (or the equivalent) or, within 5 years of applying,
at least 2 years of work experience in an occupation requiring
at least 2 years of training or experience. The program is also
known as the ``diversity visa lottery'' because recipients of
immigrant visas under the program are randomly selected and
such immigrant visas are distributed on a ``first-come, first-
served'' basis by the State Department.\12\ Winning the lottery
does not guarantee a visa, as the State Department solicits
more ``winning'' applications than the number of visas
available and requires winners to act quickly to file the
necessary documentation demonstrating that they are admissible
to the United States.
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\10\Although the Immigration and Nationality Act (INA) sets the
worldwide level of immigrant visas available under the DV program at
55,000 annually, 5,000 of these visas are unavailable as a set-aside
for immigrants eligible for relief under the Nicaraguan Adjustment and
Central American Relief Act of 1997 (NACARA). See INA Sec. 201(e), 8
U.S.C. Sec. 1151(e) (setting DV levels at 55,000); see also, section
203(d) of P.L. 105-100 (allocating 5,000 visas from the DV program for
recipients of relief under NACARA).
\11\See INA Sec. 203(c), 8 U.S.C. Sec. 1153(c) (outlining how
countries are determined to be high- or low-admission countries for
purposes of DV program eligibility).
\12\See INA Sec. 203(e)(2), 8 U.S.C. Sec. 1153(e)(2) (stating that
immigrant visas ``shall be issued to eligible qualified immigrants
strictly in a random order'').
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Diversity visa winners are subject to the same immigration,
criminal and national security background checks applicable to
all individuals applying to become lawful permanent residents,
as well as interviews performed by officials from the State
Department and the Department of Homeland Security. As
discussed further below, following reports by both the GAO and
the State Department's Office of Inspector General (OIG),
numerous improvements have already been made to address
concerns over fraud and security.
III. FLAWED CRITIQUES OF THE DIVERSITY VISA PROGRAM
As the title of H.R. 704 suggests, opposition to the DV
program has traditionally been justified on two bases: first,
that the program poses fraud and national security risks, and,
second, that allocating visas through a random, lottery-style
system is fundamentally unfair to those who have been waiting
for years in family- and employment-based immigration
categories. These critiques and their flaws will be addressed
in reverse order below.
A. Fairness and the Diversity Visa Program
The implicit, underlying rationale behind the fairness
critique is that it is unjust to allow DV recipients to receive
their immigrant visas before other prospective legal immigrants
waiting in backlogged family- and employment-based categories,
because DV immigrants are somehow either less qualified than
employment-based immigrants (who generally are subject to more
stringent educational requirements and already have jobs
awaiting them in the United States) or less likely to be
successful than family-based immigrants (who have existing
family support networks in the United States due to the
necessary close familial ties required of sponsoring
relatives). While the baseline eligibility requirements are, by
design, less stringent in the DV program than in other
immigrant visa categories, DV immigrants have been generally
more--not less--successful than the overall lawful permanent
resident population.
According to an analysis issued by the Congressional
Research Service (CRS) in April 2011:
Although the diversity immigrants are required to have
only a high school education (or the equivalent) or 2
years experience in an occupation which requires at
least 2 years of training or experience, they were more
likely to report managerial and professional
occupations than LPRs generally. Specifically, almost
[a] quarter (24%) of diversity immigrants reported
managerial and professional occupations in contrast to
10% of the 1.1 million LPRs in FY2009.''\13\
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\13\Ruth Wasem, Diversity Immigrant Visa Lottery Issues,
Congressional Research Service, R41747 at 6 (Apr. 1, 2011) [hereinafter
CRS Report].
The CRS report also notes that diversity visa recipients
are generally younger and more likely to become lawful
permanent residents as they begin their working years than
other persons who become lawful permanent residents, which
means that DV immigrants contribute to our Nation's economy for
longer periods than lawful permanent residents generally.\14\
Moreover, according to the most recent DHS yearbook of
immigration statistics, DV holders have only a 3 percent rate
of unemployment, significantly lower than the general
unemployment rate of approximately 9 percent and the
unemployment rate for all immigrants of about 8 percent.\15\
The argument that DV recipients provide less economic benefits
to the country than other lawful permanent residents is simply
unsustainable.
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\14\Id. at 7.
\15\Id.; see also Sen. Schumer Letter, supra note 9.
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During a legislative hearing on the bill, the Executive
Director for Migration and Refugee Services for the United
States Conference of Catholic Bishops testified about a DV
winner he met when he was serving as the United States
Ambassador to Togo. Ambassador Young stated:
I can cite the case of a woman that I knew in Togo. She
was educated. She had a sister in the United States who
was a U.S. citizen. The sister had petitioned for her.
She believed that the wait would have been about 25
years, and while waiting, she applied for the lottery.
She didn't win the first few times but she won--I think
it was about the fourth time around. She came to the
United States. She brought her teenage son. He finished
school here in the United States and last year got his
MBA at Harvard.\16\
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\16\Markup Transcript at 126, supra note 1.
Moreover, attacking the program as unfair to families who
wait in long backlogs misses the point of the program. In
testifying about the DV program in 2005, former Rep. Bruce
Morrison (D-CT), Chairman of the Immigration Subcommittee at
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the time the program was created, stated:
The bulk of immigrant flows will always come from those
places of close proximity, long immigrant history or
large population. However, the principle that all
nationalities are welcome, subject to available numbers
reflecting overall legislated limits, is at the heart
of the definition of America. We are a nation defined
by allegiance to democracy, human rights and equal
opportunity. . . . It balances the limitations of a
structure based only on family ties and established
employment.\17\
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\17\Hearing on the Diversity Visa Program Before the H. Subcomm. on
Immigration, Border Security, and Claims of the H. Comm. on Judiciary,
109th Cong. 49 (2005) (statement of the Honorable Bruce A. Morrison,
former Member of Congress).
The goal of the DV program is to foster ``new seed''
immigration in recognition of the principle that the United
States remains the land of opportunity that is open to all
people of the world, regardless of nationality. As Ambassador
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Young testified,
the diversity immigrant visa program generates goodwill
and hope among millions across the globe ravaged by
war, poverty, undemocratic regimes, and opacity in
government. Through the diversity immigrant visa
program, the United States makes a counterpoint to that
reality, a chance at becoming an integral member of an
open, democratic society that places a premium on hard
work and opportunity.\18\
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\18\See Markup Transcript at 45, supra note 1.
Finally, it is impossible to ignore the hypocrisy of the
fairness attack by our Republican colleagues on the DV program,
in light of the fact that H.R. 704 eliminates the program along
with the 55,000 visas that it makes available each year.
Eliminating those visas will do nothing to reduce the
incredible delays that family members and highly skilled
workers experience in our Nation's backlogged immigration
system. In fact, the Majority voted down an amendment that
would have reduced the family backlog while promoting the value
of diversity and insisted upon a germaneness point of order on
a second amendment that would have reallocated the 55,000 visas
equally to the family- and employment-based immigrant visa
backlogs.\19\ By rejecting those amendments and proceeding with
this bill, as introduced, the Majority is destroying the only
legal avenue by which persons without existing familial or
employment ties to the United States can immigrate to this
country while doing nothing to alleviate the unacceptable
delays currently experienced by American families and
businesses stuck in the family- and employment-based visa
lines.
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\19\Id. at 48-64.
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B. Fraud, Security Risks and the Diversity Visa Program
The bill's supporters also argue that H.R. 704 will enhance
the security of the United States by ending a program that can
be used by terrorists and is rife with fraud. In 2003, the
State Department's OIG issued a report discussing each of these
concerns.\20\ In response, the State Department made
significant, notable improvements to the program. The program
now requires submission of fingerprints and digital photographs
to identify duplicative and fraudulent applications through the
use of facial recognition technology. It has also shifted to an
electronic application process and away from notifying winners
by mail, in an effort to reduce the opportunity for
unscrupulous persons to extort money from lottery winners in
exchange for their results. Finally, State Department consular
posts now provide education to the community about the rules of
the program in an effort to empower potential applicants to
apply for the program without seeking assistance from
others.\21\
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\20\See U.S. Department of State Office of the Inspector General,
Memorandum Inspection Report Number ISP-CA-03-52, Diversity Visa
Program (2003).
\21\H.R. 704 Hearing at 26-27, supra note 5; see CRS Report at 10,
supra note 13.
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In a 2007 report, the GAO ``found no documented evidence
that DV immigrants . . . posed a terrorist or other
threat.''\22\ The GAO also concluded that the DV program is
accomplishing Congress' goal of diversifying the pool of
immigrants to the United States. For example, in fiscal year
2006, 40 percent of diversity visa beneficiaries were from
Africa and 34 percent were from Europe, while only 3 percent of
family- and employment-based visas went to persons from Africa
and only 8 percent went to persons from Europe.\23\
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\22\GAO Report, supra note 2, at 5.
\23\Id. at 13.
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The GAO report did identify some continuing problems with
fraud, including the widespread use of ``visa consultants'' and
``visa agents,'' who charge exorbitant fees for processing
otherwise free DV applications and provide false information.
To address these issues, consular posts attempt to educate
potential applicants about the process and the penalties for
fraudulent or multiple entries in order to reduce the influence
of visa consultants.\24\ The GAO further noted that heightened
fingerprint and facial recognition checks help to identify a
great deal of fraud and multiple entries.\25\
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\24\Id. at 28-30.
\25\Id. at 27-28.
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H.R. 704 purports to enhance security by eliminating the DV
program. Yet, as the GAO found, there is no evidence that DV
recipients pose a greater terrorist or national security threat
than any other immigration category. And while fraud certainly
exists in the program, important improvements already have been
made and further steps can be taken. The Majority's suggestion
that terrorists and hostile foreign intelligence officers
utilize this program in particular to immigrate to our country
is baseless. Given that tens of millions of applicants apply
annually for 50,000 slots, it is simply implausible that those
who would do us harm would rely on winning the lottery to gain
entry to our country. Instead of working to improve a program
that has great value to our country and its image around the
world, H.R. 704 would end it to nominally reduce an overstated
threat.
Moreover, rather than making Americans safer and improving
our current immigration system, eliminating the DV program is
likely to create greater problems for our immigration system.
As Sen. Schumer explains in his letter opposing the bill:
The DV Program also plays a helpful role in enhancing
America's security. As our world becomes ever more
interconnected, our border patrol is facing increased
challenges from immigrants who seek to enter the United
States through our land borders even though they are
coming from Africa, Asia, and Eastern Europe. The DV
Program reduces incentives for illegal immigration by
encouraging prospective immigrants to wait for years at
home until they win the lottery, as opposed to
attempting to enter illegally. It is far better to have
a manageable flow of 50,000 yearly immigrants who wait
and receive background checks, medical screenings, and
consular interviews before entering the United States
legally than to cancel this program and create a
situation of hopelessness and despair whereby hundreds
of thousands of illegal immigrants from Africa, Asia,
and Eastern Europe attempt to cross our borders each
year without our knowledge.\26\
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\26\Sen. Schumer Letter, supra note 9.
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III. CONCLUSION
The ``Security and Fairness Enhancement for America Act''
would enhance neither security nor fairness for America.
Instead, it ends an immigration program that serves as a
powerful diplomatic tool that effectively accomplishes its goal
of fostering immigration from underrepresented areas of the
world. The DV program engenders goodwill towards the United
States in a world suffering from war, poverty and tyranny by
providing hope that anyone can become a part of our peaceful,
open and free society. Ending, instead of improving, this
program based on the flawed critiques described above is simply
inappropriate. And ending the program without re-allocating
these visas to ameliorate existing backlogs for other legal
immigrants shows a lack of respect for those who have waited
decades to legally immigrate to the United States. For these
reasons, we respectfully dissent and urge our colleagues to
reject H.R. 704.
John Conyers, Jr.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Henry C. ``Hank'' Johnson, Jr.
Pedro R. Pierluisi.
Judy Chu.
Ted Deutch.
Linda T. Sanchez.