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June 03, 2005

Congressman Sensenbrenner Answers Questions on the New Australian E-3 Nonimmigrant Classification

Press availability with The Honorable F. James Sensenbrenner, Jr.,
Chairman, House Judiciary Committee, U.S. House of Representatives

May 31, 2005

Parliament House
Canberra, Australia

Congressman Sensenbrenner: First of all let me say, I’m Jim Sensenbrenner. I’ve been a member of Congress from the State of Wisconsin for over 26 years and I’m currently the Chairman of the House Judiciary Committee which has got jurisdiction over a number of items including immigration policy which means passports and visas as well as much of the domestic counterterrorism issues that the United States has had in place since September 11.

One of the reasons that I’ve come to Australia is to talk a little bit about the success that we’ve had in putting specific authorization for E3 visa and the Real ID Act, which was the enhanced security for drivers licenses and changes in the asylum law that I authored at the end of November and which were incorporated into the military supplemental appropriation bill which was signed by President Bush on May 11.

The E3 visa proposal I think is a way we can encourage both exchanges and economic development of Australians coming to the United States. And it is something that in my opinion is long overdue and which will be welcome and which will be constructive for both countries. Now that the legislation has been passed and signed by the President the next step will be to have the Department of State issue administrative regulations implementing this legislation. After those regulations are in place then the consulates will be able to accept applications from Australians and issue the visas and the Australians can then come to the United States with work authorization.

When I get back to Washington I will send an oversight letter to Secretary of State Rice asking that this administrative regulation process be expedited as quickly as possible and hopefully within a few months’ time the regulations will be finalized and at that time the three consulates that issue visas in Australia will be in business accepting applications.

The one message I’d like to give to you is that the law is in place and the visas will be there but I would ask that the readers of your newspapers be patient while this administrative regulation procedure goes on because asking the consulate tomorrow how to get a visa will get a response of, “we don’t know yet.” So as soon as the regulations are finalized, the Embassy will get out a press release. They will put information on the Embassy website and then anybody who wishes to apply for one of these visas will be welcome to do so. So with that I’ll be happy to answer your questions.

Q: Why have Australians been singled out for this visa?

A: When America implemented the WTO accession, there were immigration provisions that were contained within that legislation, and it is my feeling that mixing immigration and trade is not the proper thing to do. There are two separate issues. During the negotiations with the Free Trade Agreement the Australian government made a specific request that the WTO precedent be followed and that the E-3 visas be incorporated in the Free Trade Agreement. And I’m opposed to that and all of the members of my committee are opposed to this because while we’ve got the expertise on immigration questions, the Ways and Means Committee has expertise on trade questions. But I did tell former Ambassador Thawley when he was on post in Washington that I would see what could be done to incorporate the request of the Australian Government into separate legislation that dealt with immigration and it might take some time to do it. We were able to do it fairly quickly in terms of the time frame of the U.S. Congress acting on legislation and the proper legislative authority is now passed.

Q: How soon will the regulations be implemented?

A: Well, you know, I’m not an Executive Branch official. That’s part of the beauty of the problem of the separation of powers that we adopted when we left the less than nurturing guidance of the British Parliament a century and a quarter before you all did. What I will do is try to build a fire under Secretary Rice so that we can get these regulations promulgated as quickly as possible. And I would hope that within two or three months we would be able to get the regulations promulgated. The consulates cannot accept applications until those regulations are promulgated, so I just want to re-emphasize this. The law has been passed, but they still don’t have the regulations to issue the visas, and once those regulations are finalized, then the embassy and the consulates will let everybody know that they are able to take applications and let everybody come and apply.

Q: What were the particular sensitivities about the FTA? I don’t understand the rationale between separating immigration and trade.

A: Well, the Constitution of the United States specifically gives the Congress the authority to deal with immigration issues. And that is not the case in terms of international agreements, specifically trade agreements, which are the most far reaching, and the most comprehensive of the international agreements but are negotiated by the President and then submitted to the Congress. Now the other thing is that under the fast track authority that the President negotiates trade agreements with is that the trade agreements, once agreed to, are not amendable when they are submitted to Congress. And we may wish to amend the immigration provisions, which are a bit more sensitive than many of the free trade provisions that are agreed to between the executive branch and the foreign country that they negotiate with.

Q: Do you envisage extending the E3 to other countries?

A: Well, the answer is that I don’t know. I am concerned, for example, that when we are dealing with free trade agreements with third world countries like Central America and Caribbean islands… that is an entirely different mix of immigration questions than dealing with a developed country like Australia. And, what I can say is that our committee will deal with requests from this administration or any future administration on a case-by-case basis as it comes. We did get a request when the Singapore and Chile free trade agreements were submitted for an additional category of visas. The Committee at that time decided that creating a new category of visas was not in the public interest and as a result, the visas numbers that were agreed to as a part of that agreement were deducted from another category.

Q: Why is it such a different case for developing countries and developed countries?

A: The question is who has got the wherewithal to make the investment, because these types of visas are by and large business visas. And if a country is not able to utilize these visas as a way of furthering international trade, then there really is no reason to have visas as a part of a free trade agreement. And the other question, I’ll be very honest with you, is these are not immigrant visas, and we look at how many visa overstays there are and from which countries people go home on or before the expiration of the visas. The problem with visa overstays has become a real problem in the United States because there have been statistics that have been published that indicate that approximately one half of the illegal aliens in the United States entered the country legally and did not go home prior to the expiration of their authorized stay, and only a little bit more than the half actually snuck under the fence and entered the United States illegally.

Q: Is there an expectation of any changes on the Australian side?

A: I have not heard any problems with the type of business investor visa or work authorization visa for Americans that are coming temporarily to Australia for whatever purpose, whether they’re recent graduates of college that have a gap year and wish to go someplace else to work before they return home, and here continue their studies or get a permanent job. So I really have not heard those types of complaints. I’m certain the Australian Government, if there were those types of complaints, would be happy to reciprocate, simply because we were able to get the E3s passed as requested by Australia to the U.S.

Q: Are you having discussions with the Immigration Department here?

A: Yesterday I had a very instructive meeting at the Sydney Airport. One of the projects of my committee is to try to make sure that citizens of visa waiver countries, of which Australia is one, when they enter the United States have passports that are tamper proof and have biometric identifiers contained in the passport so that an immigration inspector, whether it’s in the United States or elsewhere, can see that the document really is being carried by the person whose identity it is supposed to establish. We all know that there’s a huge market in false travel documents around the world that are used by criminals and terrorists and others that are attempting to evade immigration laws, whether it’s your law or our law or another country’s law. Australia is probably the leader in the world in being able to produce these passports with biometric identifiers. The United States law sets a deadline of October 26 of this year for all newly-issued passports from visa waiver countries to contain a biometric identifier that meets International Civil Aviation Organization standards, which means having an encrypted picture and personal data that is contained on the picture page of a passport somewhere there which can be read and checked to make sure that the data that is actually physically on the paper of the picture page is accurate. And the demonstration at Australian Immigration and Australian Customs gave to us in the Sydney Airport was very, very satisfying and I suggested that maybe they should come and talk to our State Department as well as foreign ministries of some European countries that have not progressed as rapidly as they really should. Having said what’s in the law, there’s been a lot of misinformation that has come out, and I want to make it perfectly clear that everybody who has an Australian passport that is issued before October 26 will be able to continue to use that passport for visa waiver entry into the United States until the expiration date that is stated on the passport. So, put another way, because of this deadline under U.S. law, nobody is going to have to run in and get a new passport if their current passport is not ready to expire.

Q: You extended that deadline by 12 months last year. Would you expect to do that again?

A: I think that that will be unlikely and I’ve told representatives of governments of visa waiver countries to expect to have the deadline adhered to. I would say the chance of both Houses passing an extension and having it signed by the President are very, very slim.

Q: Any thoughts on mandatory detention?

A: Well, really not. I think that this is an internal question. I am the author of the Patriot Act and in the United States if an alien is detained they do have to be charged with either an immigration violation or a criminal violation within seven days after detention. And all the Patriot Act did was extend that from 48 hours. If there is a charge that is filed, then either an immigration judge, or a magistrate judge in the case of the criminal action, would have what is a standard bail hearing. And if the judge made a determination that there was a danger of flight or danger to society then bail could be denied and the detention would be for an indefinite period of time but would have to periodically be reviewed by the judge that denied bail.

Q: Has your committee looked at incarceration of children in Australia?

A: No, we have not. And that, in my opinion, that is a decision that is a domestic security issue which will have to be determined pursuant to the laws of the country involved, and if the laws were to be changed, then it should be done legislatively.

Q: Just to be clear, to your knowledge Australians have not been over-stayers on their visa as such?

A: No, no. One of the things we look at to continue visa waiver status is the overstay rate. And if there is an unacceptable overstay rate, the visa waiver status can be revoked. And it has been revoked from countries that were previously granted visa waiver status sometimes as a result of a dip in economic conditions. Argentina had visa waiver status for a while and does not anymore because of the overstay question. There is, to my knowledge, there is no move to even look at whether to revoke Australia’s visa waiver policy because Australians, when they come to the United States, usually leave on or before their time their authorization to stay is expired.

Q: Is there a sunset clause on the E3 visa?

A: No, no.
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Posted by VisaLawyer at June 3, 2005 12:10 PM

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