Of Visa Fees and Border Surveillance

The day after the Senate folded its tent for the August recess, President Obama signed into law a new measure designed to mend fences – literally and politically – in the states along the border of the American southwest. The new law can be seen as a response to critics who complained that the administration needed to “tighten the border” before any meaningful immigration reform could be undertaken. With this move, the President is trying to remove one of the most significant obstacles to comprehensive immigration reform (CIR), hoping to bring his long-promised objective closer to realization – soon(ish), but likely not before the November elections.

The President released a statement on August 12th, the day before he signed the measure into law, taking aim at his critics, promising to secure the southwestern border against the violent drug gangs now ravaging northern Mexico:

I have made securing our Southwest border a top priority since I came to office. That is why my administration had dedicated unprecedented resources and personnel to combating the transnational criminal organizations that traffic drugs, weapons, and money, and smuggle people across the border with Mexico. Today’s action by Congress answers my call to bolster the essential work of federal law enforcement officials and improve their ability to partner with state, local, and tribal law enforcement. The resources made available through this legislation will build upon our successful efforts to protect communities along the Southwest border and across the country. And this new law will also strengthen our partnership with Mexico in targeting the gangs and criminal organizations that operate on both sides of our shared border. So these steps will make an important difference as my administration continues to work with Congress toward bipartisan comprehensive immigration reform to secure our borders, and restore responsibility and accountability to our broken immigration system. (See Statement by the President on the Passage of the Southwest Border Security Bill.)

According to a White House factsheet, the new law will provide $600 million in supplemental funding for better border-security technology – including, among other things, $32 million for new surveillance drones, $244 million to pay for continued growth of the Border Patrol and Immigration and Customs Enforcement, and $196 million to further increase the presence of Justice Department personnel in the area. The new law allows the deployment of 1,200 more National Guard troops to provide “surveillance and reconnaissance support” until new civilian enforcement officers can be hired and trained. It also provides funding for technical assistance to Mexican police agencies, in the attempt to make them more effective partners in combating cross-border crime.

Although we applaud the President’s efforts to protect border communities from cross-border drug and gang violence – and hope these will clear the way for CIR in the near future – we are less enthused that a substantial chunk of the funding for these initiatives comes from new fees to be levied on many H1B and L-1 visa applicants, which will add $2,000 to an H1B petition, and $2,250 to an L-1 filing. (See MurthyDotCom article, Substantially Increased Fees for Certain H1Bs/L1s, 20.Aug.2010, noting that the new fees will apply to companies that employ 50 or more employees in the United States, and whose U.S. workforce is made up of more than 50 percent L-1 and H1B workers.)

The details of this new fee scheme are still being worked out, but already this has become a bone of contention in U.S. – India trade relations. Indian trade officials have complained to U.S. Trade Representative Ron Kirk about the discriminatory effects of the new law, effects that will hit hardest at Indian IT workers in the Silicon Valley and elsewhere in the United States. According to a wire service report, the government of India is considering the possibility of lodging a formal complaint with the World Trade Organization, citing the protectionist nature of the U.S. law. (See India May Take US Visa Fee Hike to WTO, RTT News, 18.Aug.2010.)

Some commentators also fear that the fee increases will stunt economic growth just when we need it most, making it harder to recruit the foreign tech workers needed to expand American businesses. (See, e.g., A Costly Hike in Visa Fees, by Alex Nowrasteh, Boston Globe, 17.Aug.2010.) Although the bill may ultimately help the President to clear away the many obstacles – real and rhetorical – that stand in the way of CIR, one can’t help wondering whether the unintended economic consequences of this border-tightening measure will have been worth it. It might even give the GOP something new to complain about when the new Congress takes office next January. The administration appears to hope that, by taking strong action now, it will have provided at least some pre-election political cover to Democratic incumbents now under fire about border security issues, and perhaps cut its losses in November – living to fight the CIR battle another day.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.