Hurricane Katrina-Related Immigration Issues and Legislation
Released: 2005-10-18T00:00:00

Introduction

The devastation and displacement caused by Hurricane Katrina in the Gulf Coast region ofthe United States pose a host of environmental, human resource, and other public policy challenges. Caught in the web of this tragedy and its sweeping dilemmas are a unique subset ofimmigration-related issues. The loss of livelihood, habitat, and life itself has very specificimplications for foreign nationals who lived in the Gulf Coast region. Whether the noncitizen orforeign national is a legal permanent resident (LPR), a nonimmigrant (e.g., temporary resident sucha foreign student, intracompany transferee, or guest worker) or an unauthorized alien (i.e., illegalimmigrant) is a significant additional factor in how federal immigration and public welfare laws areapplied. In this context, the key question is whether Congress should relax any of these lawspertaining to foreign nationals who are victims of Hurricane Katrina .

The total number of foreign nationals affected by Hurricane Katrina is not known. Surveydata from the U.S. Census Bureau estimate that over 270,000 foreign-born persons lived in Alabama,Louisiana, and Mississippi in 2004. (1) The Department of Homeland Security (DHS) estimates that34,242 naturalized citizens, 24,087 LPRs, and 71,992 nonimmigrants may be affected by HurricaneKatrina. (2) Jeffrey Passel,a demographer who specializes in unauthorized migration, estimates that at least an additional20,000 to 35,000 unauthorized aliens are victims of Hurricane Katrina. (3)

This report focuses on four immigration policy implications of Hurricane Katrina. It openswith a discussion of employment verification and other documentary problems arising for those whohave lost their personal identification documents. It follows with an overview of the rules fornoncitizen eligibility for federal benefits. Issues pertaining to how the loss of life or livelihoodaffects eligibility for immigration visa benefits are discussed next. The report closes withbackground on relief from removal options for Katrina-affected aliens. Legislation addressing thesepolicy areas is discussed in the relevant sections.

Personal Identification and Employment Eligibility

Many of the victims of Hurricane Katrina lack personal identification documents as a resultof being evacuated from their homes, loss or damage to personal items and records, and ongoingdisplacement in shelters and temporary housing. As a result of the widespread damage anddestruction to government facilities in the area affected by the hurricane, moreover, many victimswill be unable to have personal documents re-issued in the near future. Lack of adequate personalidentification documentation, a problem for all victims, has specific consequences under immigrationlaw, especially when it comes to employment.

The Immigration and Nationality Act (INA) requires employers to verify employmenteligibility and establish identity through specified documents presented by the employee -- citizensand foreign nationals alike. Specifically, Â§274(a)(1)(B) of the INA makes it illegal for an employerto hire any person -- citizen or alien -- without first verifying the person's authorization to work inthe United States. Employers (and recruiters and referrers for a fee) must examine documents andattest that they appear to be genuine and relate to the individual. If a document does not reasonablyappear on its face to be genuine and relate to the person presenting it, the employer may not acceptit. Under INA Â§274(b), employers may not specify which document(s) the person must present. TheINA and applicable regulations provide for three categories of documents: (1) those that establishboth identity and employment eligibility; (2) those that establish identity only; and (3) those thatestablish work eligibility only. (4)

Employers who fail to properly comply as required by law are subject to sanctions. Specifically, employers who fail to complete, retain, and/or present the proper form (known as theI-9) for inspection may be subject to a civil penalty for violations ranging from $110-$1,100 peremployee. For a violation of hiring unauthorized aliens, an employer can also face: $275-$2,200fine for each unauthorized individual; $2,200-$5,500 for each employee if the employer haspreviously been in violation; and, $3,300-$11,000 for each individual if the employer was subjectto more than one cease and desist order. (5)

On September 6, 2005, DHS, the federal department responsible for enforcing theseprovisions of law, issued a statement that it would not bring sanction actions against employers forhiring individuals evacuated or displaced as a result of Hurricane Katrina.

... the Department of Homeland Security will refrainfrom initiating employer sanction enforcement actions for the next 45 days for civil violations, underSection 274A of the Immigration and Nationality Act, with regard to individuals who are currentlyunable to provide identity and eligibility documents as a result of the hurricane. Employers will stillneed to complete the Employment Eligibility Verification (I-9) Form as much as possible but shouldnote at this time that the documentation normally required is not available due to the eventsinvolving Hurricane Katrina. At the end of 45 days, the Department of Homeland Security willreview this policy and make further recommendations. (6)

Given that the individuals affected by Hurricane Katrina are now scattered across the UnitedStates, this moratorium on sanctioning employers may have broad implications and is not withoutits critics. Representative Lamar Smith, for example, is quoted as saying: "Hurricane Katrina hascaused a situation unlike any we have ever had to endure, but that does not mean that the Departmentof Homeland Security has the authority to ignore important laws." Representative Smith, who sitson the House Committee on the Judiciary Subcommittee on Immigration, Border Security andClaims, continued, "the end result may be worthwhile, but that does not mean that federal agenciescan disregard statutes put in place to protect American jobs." (7)

U.S. Citizenship and Immigration Services (USCIS) announced that the records in its NewOrleans office were not damaged and that field offices assisting hurricane victims in replacingofficial documentation. USCIS stated that it will be verifying identity and immigration status beforere-issuing any immigration related document and will be utilizing its electronic file data to performidentity verification where possible. (8)

On September 21, 2005, the House of Representatives passed under suspension of the rules, H.R. 3827 , the Immigration Relief for Hurricane Katrina Victims Act of 2005. Amongother provisions, H.R. 3827 would amend the INA to authorize DHS to waive for not more than 90days employer attestation or verification requirements due to disaster-caused document loss (duringa major disaster-declaration period). The House-passed bill also would authorize DHS to replace orprovide temporary identity and employment authorization documents lost, stolen, or destroyed asa consequence of Hurricane Katrina.

Noncitizen Eligibility for Federal Assistance

Lack of sufficient documentation to confirm eligibility for federal programs and assistanceis a core issue for all victims, not merely those who are noncitizens. The eligibility of noncitizensfor public assistance programs, moreover, is based on a complex set of rules that are determinedlargely by the type of noncitizen in question and the nature of services being offered. (9) The Personal Responsibilityand Work Opportunity Reconciliation Act of 1996 ( P.L. 104-193 ) is the key statute that spells outthe eligibility rules for noncitizens seeking federal assistance. As legislation to ease the federaleligibility rules for public assistance for Hurricane Katrina victims generally is under consideration,the question of whether to ease the specific rules for noncitizens has arisen (S. 1695). (10)

Legal Permanent Residents

Under current law, noncitizens' eligibility for the major federal means-tested benefitprograms largely depends on their immigration status and whether they arrived in the United States(or were on a program's rolls) before August 22, 1996, the enactment date of the PersonalResponsibility and Work Opportunity Reconciliation Act of 1996 ( P.L. 104-193 ). The basic rulesare as follows:

Refugees and asylees are eligible for SSI benefits and Medicaid for seven yearsafter arrival, and for five years under TANF. (11) After this term, they generally are ineligible for SSI, but may beeligible, at state option, for Medicaid and TANF.

LPRs with a substantial work history -- generally 10 years (40 quarters) ofwork documented by Social Security or other employment records -- or a military connection (activeduty military personnel, veterans, and their families) are eligible for the full range ofprograms.

All aliens who have resided in the United States for five or more years as"qualified aliens" -- i.e., LPRs, refugees/asylees, and other non-temporary legal residents (such asCuban/Haitian entrants) are eligible for food stamps.

LPRs receiving SSI as of August 22, 1996, continue to beeligible.

Medicaid coverage is required for all otherwise qualified SSI recipients (theymust meet SSI noncitizen eligibility tests).

Disabled LPRs who were legally resident as of August 22, 1996, are eligiblefor SSI.

LPRs receiving government disability payments, so long as they pass anynoncitizen eligibility test established by the disability program (e.g., SSI recipients would have tomeet SSI noncitizen requirements in order to get food stamps) are eligible for food stamps. (12)

LPRs who were elderly (65+) and legally resident as of August 22, 1996, areeligible for food stamps.

LPRs who are children (under 18) are eligible for foodstamps.

LPRs entering after August 22, 1996, are barred from TANF and Medicaid forfive years, after which their coverage becomes a state option. (13) For SSI, the five-year barfor new entrants is irrelevant because they generally are denied eligibility (without a timelimit).

Several bills that would waive the categorical eligible requirements for various federalprograms in the case of Hurricane Katrina victims have been introduced, but most are silent on theissue of noncitizens. On September 13, however, legislation to provide the Secretary of Agriculturewith additional authority and funding to provide emergency relief to victims of Hurricane Katrina( S. 1695 ) was introduced, and, among other provisions, this bill would treat legalimmigrants in the United States who are victims of Hurricane Katrina as refugees for the purposesof food stamps. (14)

Unauthorized Aliens

The PRWOR of 1996 ( P.L. 104-193 ) also denies most federal benefits, regardless of whetherthey are means tested, to unauthorized aliens (often referred to as illegal aliens). The class ofbenefits denied is broad and covers: (1) grants, contracts, loans, and licenses; and (2) retirement,welfare, health, disability, housing, food, unemployment, postsecondary education, and similarbenefits. So defined, this bar covers many programs whose enabling statutes do not individuallymake citizenship or immigration status a criterion for participation. Thus, programs that previouslywere not individually restricted -- the earned income tax credit, social services block grants, andmigrant health centers, for example -- became unavailable to unauthorized aliens, unless they fallwithin the act's limited exceptions. These programmatic exceptions include

treatment under Medicaid for emergency medical conditions (other than thoserelated to an organ transplant); (15)

short-term, in-kind emergency disaster relief; (16)

immunizations against immunizable diseases and testing for and treatment ofsymptoms of communicable diseases;

services or assistance (such as soup kitchens, crisis counseling andintervention, and short-term shelters) designated by the Attorney General as: (i) delivering in-kindservices at the community level; (ii) providing assistance without individual determinations of each recipient's needs; and (iii) being necessary for the protection of life and safety; (17) and

to the extent that an alien was receiving assistance on the date of enactment,programs administered by the Secretary of Housing and Urban Development, programs under TitleV of the Housing Act of 1949, and assistance under Section 306C of the Consolidated Farm andRural Development Act. (18)

P.L. 104-193 also permits unauthorized aliens to receive Old Age, Survivors, and DisabilityInsurance benefits under Title II of the Social Security Act (SSA), if the benefits are protected by thattitle or by treaty or are paid under applications made before August 22, 1996. (19) Separately, the P.L.104-193 states that individuals who are eligible for free public education benefits under state andlocal law shall remain eligible to receive school lunch and school breakfast benefits. (The act itselfdoes not address a state's obligation to grant all aliens equal access to education under the SupremeCourt's decision in Plyler v. Doe , 457 U.S. 202 (1982).) P.L. 104-193 expressly bars unauthorizedaliens from most state and locally funded benefits. The restrictions on these benefits parallel therestrictions on federal benefits.

Disaster Assistance

As noted in the above discussion, noncitizens -- regardless of their immigration status -- arenot barred from short-term, in-kind emergency disaster relief and services or assistance that deliverin-kind services at the community level, provide assistance without individual determinations of eachrecipient's needs, and are necessary for the protection of life and safety. (20) Moreover, the Robert T.Stafford Disaster Relief and Emergency Assistance Act, (21) the authority under which the Federal Emergency ManagementAgency (FEMA) conducts disaster assistance efforts, requires nondiscrimination and equitabletreatment in disaster assistance:

The President shall issue, and may alter and amend,such regulations as may be necessary for the guidance of personnel carrying out Federal assistancefunctions at the site of a major disaster or emergency. Such regulations shall include provisions forinsuring that the distribution of supplies, the processing of applications, and other relief andassistance activities shall be accomplished in an equitable and impartial manner, withoutdiscrimination on the grounds of race, color, religion, nationality, sex, age, or economic status. (22)

FEMA assistance provided under the Stafford Act includes (but is not limited to) grants forimmediate temporary shelter, cash grants for uninsured emergency personal needs, temporaryhousing assistance, home repair grants, unemployment assistance due to the disaster, emergency foodsupplies, legal aid for low-income individuals, and crisis counseling. (23)

Media accounts of aliens who are fearful of seeking emergency assistance followingHurricane Katrina infer that the reported reluctance is due more to the risk of deportation thanrestricted access to benefits. "We want to provide food, water, shelter and medical supplies toeveryone," stated DHS spokesperson Joanna Gonzalez. She further assured, "No one should beafraid to accept our offers to provide safety." According to Gonzalez, rescuers had not been askingpeople whether they are in the country legally when they are rescuing them. DHS initially did notissue a statement clarifying whether information that FEMA gathers on unauthorized aliens wouldbe shared with law enforcement agencies, most notably the DHS Immigration and CustomsEnforcement (ICE) bureau. (24) Subsequently, Gonzalez explained, "... as we move forward withthe response, we can't turn a blind eye to the law." (25)

Preservation of Immigrant Visa Benefits

Immigration admissions are subject to a complex set of numerical limits and preferencecategories that give priority for admission on the basis of family relationships, needed skills, andgeographic diversity. There are very few immigration avenues based on self petitioning; mostrequire that aliens have a family member or employer who is eligible, able, and willing to sponsorthem. The loss of life, devastation of businesses, or depletion of personal assets directly affects visaqualifications for otherwise eligible aliens who are victims of Hurricane Katrina or the family ofvictims. It also affects nonimmigrants whose purposes for the temporary visas are disrupted by thehurricane and its aftermath.

Loss of Sponsor

The largest number of immigrants is admitted because of a family relationship to a U.S.citizen or LPR. Specifically the family relationships are: immediate relatives of U.S. citizens; (26) the spouses and childrenof LPRs; the adult children of U.S. citizens; and, the siblings of adult U.S. citizens. (27) As of July 2005, mostrelatives of U.S. citizens and LPRs were waiting in backlogs for a visa to become available, with thebrothers and sisters of U.S. citizens waiting almost 12 years. (28) Married adult sons anddaughters of U.S. citizens who filed petitions seven years ago (February 1, 1998) were beingprocessed for visas in July. Prospective family-sponsored immigrants from the Philippines have themost substantial waiting times before a visa is scheduled to become available to them; consularofficers are now considering the petitions of the brothers and sisters of U.S. citizens from thePhilippines who filed 22 years ago. If the person in the United States who is petitioning for therelative dies while the alien is waiting for the visa, the prospective LPR is no longer eligible for theLPR visa.

In terms of most employment-based LPRs, employers hiring prospective LPRs to work forthem petition with USCIS on behalf of the alien and submit applications with the Employment andTraining Administration in Department of Labor (DOL) to certify employment of the worker. Theprospective LPR must demonstrate that he or she meets the qualifications for the particular job aswell as the INA preference category. If DOL determines that a labor shortage exists in theoccupation for which the petition is filed, labor certification will be issued. (29) If the petitioning employerno longer can employ the worker, the prospective LPR is no longer eligible for an immigrant visa.

The "Immigration Relief for Hurricane Katrina Victims Act of 2005" ( H.R. 3827 ) was introduced by the Hon. James Sensenbrenner, chairman of the House Committee on theJudiciary, and Hon. John Conyers, the ranking member of the House Committee on the Judiciary onSeptember 20,2005 and passed the House under suspension of the rules on September 21, 2005. Thisbill is comparable to the provisions in the USA PATRIOT Act ( P.L. 107-56 ) that providedimmigration relief for family members of those killed by the September 11, 2001 terrorist attacks

H.R. 3827 would authorize DHS to provide special immigration status to

an alien beneficiary of an immigration petition, nonimmigrant fiance or fianceeK-visa, or labor certification application filed on or before August 29, 2005 (Hurricane Katrina) ifthe petitioner, applicant, or beneficiary died, was disabled, or lost employment due to the damageor destruction of his or her workplace;

an alien who as of such date was the spouse or child of such alien and wasaccompanying or following to join such alien by August 29, 2007; and

an alien who is the grandparent of a child whose parents died as a consequenceof Hurricane Katrina, if at least one of the parents on August 29, 2005, was a U.S. citizen, national,or legal permanent resident.

H.R. 3827 also would automatically extend legal nonimmigrant visa status in the UnitedStates for some nonimmigrant visa holders. This provision would cover those aliens who weredisabled due to Hurricane Katrina-related injury, or spouses and children of an alien who died or wasdisabled in Hurricane Katrina.

In addition, H.R. 3827 would provide that an alien who, as of August 29, 2005,was the spouse or child of a refugee, asylee, or employment-based immigrant who died as aconsequence of Hurricane Katrina would have his or her respective refugee, asylee, or statusadjustment claim determined as if the death had not occurred. In these instances, the bill wouldwaive the public charge inadmissibility grounds.

Similarly, the USA PATRIOT Act contained provisions designed to insure that certain aliensdid not lose immigration benefits due to circumstances resulting from the September 11, 2001terrorist attacks against the United States. The act granted immigration benefits to some survivingspouses, children, and in some cases, parents, of U.S. citizens or LPRs killed or disabled onSeptember 11, 2001. More specifically under Â§421 of the Patriot Act, a surviving spouse, child, orfiancÃ© regained the chance to immigrate by self-petitioning for him or herself. The act also enableda grandparent of a child orphaned by the events of September 11 to self-petition, if the alien was thegrandparent of a child, both of whose parents died in the terrorist attacks.

In addition, Â§421 of the Patriot Act allowed prospective employment-based LPRs who werebeneficiaries of approved labor certifications that were revoked due to the disabling of the principalalien or the loss of his/her employment due to physical damage caused by the terrorist attacks ofSeptember 11 to pursue their visa petition. It also extended that opportunity to surviving spousesor children of aliens killed in the attacks who were employment-based LPR or who hademployment-based petitions pending on September 10, 2001.

Finally, Â§422 of the Patriot Act automatically extended legal nonimmigrant visa status in theUnited States for some nonimmigrant visa holders. This provision covers those aliens who weredisabled in the terrorist attacks of September 11, 2001, or spouses and children of an alien who diedor was disabled in those attacks.

Public Charge Ground of Inadmissibility

The grounds of inadmissibility are an important basis for denying foreign nationals admissionto the United States, and one of these grounds bars the admission of aliens who are considered likelyto become a public charge (e.g., indigent). (30) All aliens seeking LPR visas who are family-based immigrantsas well as employment-based immigrants who are sponsored by a relative must have bindingaffidavits of support signed by U.S. sponsors in order to show that they will not become publiccharges. (31) To qualifyas a sponsor, the individual must be a U.S. citizen or legal permanent resident who is at least 18years old, domiciled in the United States, and able to support both the sponsor's family and the alien'simmigrating family members at an annual income level equal to at least 125% of the federal povertyguideline. (32) Theaffidavit of support is a legally binding contract enforceable against the affiant (i.e., sponsor) if theimmigrant collects any means-tested benefit. (33)

At issue is whether victims of Hurricane Katrina will be considered public charges in thecontext of admissibility for LPR visas if they or their sponsors cannot now support their family atan annual income level equal to at least 125% of the federal poverty guideline. (34) In 1999, the formerImmigration and Naturalization Service (INS) proposed a regulation that defined "public charge" tomean an individual who has become or who is likely to become "primarily dependent on thegovernment for subsistence, as demonstrated by either the receipt of public cash assistance forincome maintenance or institutionalization for long-term care at government expense." (35)

At that same time, the INS also issued field guidance to alleviate "considerable publicconfusion about the relationship between the receipt of federal, state, and local public benefits" and"public charge" determinations in immigration law. (36) Among other policy pronouncements, this 1999 guidanceaddresses the following concerns:

use of non-cash benefits by an immigrant (other than institutionalization forlong-term care at government expense) may not be considered during public charge determinations,nor may cash benefits be considered unless they are for purposes of incomemaintenance;

use of cash benefits for income maintenance by an immigrant's family membersis not attributed to the immigrant when determining if the immigrant is likely to become a publiccharge unless the family relies on the benefits as its sole means of support;and

an immigrant's use of cash public assistance for income maintenance orinstitutionalization for long-term care at government expense may be considered during publiccharge determinations. (37)

Final regulations on this matter have not been promulgated.

Relief from Removal

At various times in the past, the Attorney General has provided, under certain conditions,discretionary relief from deportation so that aliens who have not been legally admitted to the UnitedStates or whose temporary visa has expired nonetheless may remain in this country temporarily. Thestatutory authority cited for these discretionary procedures has generally been that portion ofimmigration law that confers on the Attorney General the authority for general enforcement and thesection of the law covering the authority for voluntary departure. (38)

The Attorney General has provided blanket relief by means of the suspension of enforcementof the immigration laws against a particular group of individuals. In addition to TemporaryProtected Status (TPS) which may be provided by the Secretary of DHS, (39) the two most commondiscretionary procedures to provide relief from deportation have been deferred departure or deferredenforced departure (DED) and extended voluntary departure (EVD). Unlike TPS, aliens who benefitfrom EVD or DED do not necessarily register for the status with USCIS, but they trigger theprotection when they are identified for deportation. If, however, they wish to be employed in theUnited States, they must apply for a work authorization from USCIS.

In 1992, the Administration of George H.W. Bush granted DED to about 80,000 Chinesefollowing the June 1989 Tiananmen Square massacre, and the Chinese retained DED throughJanuary 1994. The George H.W. Bush Administration also granted DED to what was then anestimated 190,000 Salvadorans through December 1994. On December 23, 1997, President WilliamClinton instructed the Attorney General to grant DED to the Haitians for one year. (40)

Following the September 11, 2001 terrorist attacks, INS issued a press release announcingthat family members of victims of the terrorist attacks whose own immigration status was dependenton the victim's immigration status should not be concerned about facing immediate removal fromthe United States. The then-Commissioner James Ziglar stated: "The INS will exercise its discretionin a compassionate way toward families of victims during this time of mourning and readjustment. On September 19, we began to advise our offices to exercise compassionate discretion in thesecircumstances." (41)

Some, including a group of Democratic Senators, have requested that DHS Secretary MichaelChertoff issue a formal statement reassuring immigrant victims of Hurricanes Rita and Katrina thatthey can seek help from relief agencies without fear of deportation or being turned over toimmigration authorities. (42)

Meanwhile, it appears that some foreign nationals who were adversely affected by HurricaneKatrina are beginning to depart the United States voluntarily. Mexican consular officials in theUnited States, for example, are reportedly helping to repatriate Mexicans when the person who hasbeen displaced by the hurricane requests it. (43) Initially it was unclear whether ICE would initiate forciblerepatriations targeting unauthorized aliens who were victims of Hurricane Katrina. (44) More recently there havebeen reports, however, of unauthorized aliens who were victims of Hurricane Katrina being arrested,detained, and ordered deported. (45)