Legislative Bulletin — Friday, April 2, 2021

BILLS INTRODUCED AND CONSIDERED
LEGISLATIVE FLOOR CALENDAR
UPCOMING HEARINGS AND MARKUPS
THEMES IN WASHINGTON THIS WEEK
GOVERNMENT REPORTS
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

BILLS INTRODUCED AND CONSIDERED

S. 970

The BELIEVE Act

The bill would eliminate the employment-based (EB) immigrant visa backlog by doubling the number of visas available in certain categories, removing per-country limitations, and no longer counting spouses and children towards the visa cap. The bill would also remove per-country caps for employment-based green card categories.

Sponsored by Senator Rand Paul (R-Kentucky) (0 cosponsors)

03/25/2021 Introduced in the Senate by Senator Paul

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 1024

The Healthcare Workforce Resilience Act

The bill would recapture 40,000 unused visas and use them to provide additional green cards to 25,000 physicians and 15,000 professional nurses. The visas would not count towards the annual limit and would be recaptured from a pool of over 200,000 employment-based visas left unused between 1992 and 2020. The bill would target mainly healthcare workers and their families already in the green card backlog and would require an employer attestation that the new workers would not displace current U.S. workers. The bill would allow the new green cards to be issued until 90 days after the declaration of a national emergency pertaining to the COVID-19 outbreak is ended. The bill is a companion to H.R. 2237.

Sponsored by Senator Dick Durbin (D-Illinois) (5 cosponsors — 2 Democrats, 3 Republicans)

03/25/2021 Introduced in the Senate by Senator Durbin

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 1045

The Terrorist Deportation Act

The bill would render deportable any noncitizen who is identified in the U.S. government terrorist screening database.

Sponsored by Senator John Kennedy (R-Louisiana) (0 cosponsors)

03/25/2021 Introduced in the Senate by Senator Kennedy

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 1051

The Empowering Immigration Courts Act

The bill would authorize immigration judges to impose fines up to $1,000 for those found to be in contempt of court.

Sponsored by Senator John Kennedy (R-Louisiana) (0 cosponsors)

03/25/2021 Introduced in the Senate by Senator Kennedy

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 1055

The Criminal Alien Removal Clarification Act

The bill would render deportable noncitizens who have been convicted of any felony or any two misdemeanors.

Sponsored by Senator John Kennedy (R-Louisiana) (0 cosponsors)

03/25/2021 Introduced in the Senate by Senator Kennedy

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 1056

The Criminal Alien Gang Member Removal Act

The bill would render deportable any noncitizen who is determined to be a member of a criminal gang. It would also render deportable any noncitizen who has participated in activities that promote, further, aid, or support illegal activity of a criminal gang.

Sponsored by Senator John Kennedy (R-Louisiana) (0 cosponsors)

03/25/2021 Introduced in the Senate by Senator Kennedy

03/25/2021 Referred to the Senate Committee on the Judiciary

S. 2219

The End Child Trafficking Now Act

The bill would mandate DNA testing for migrants crossing the Southern border. The bill would require DHS to deport migrant adults if they refused a DNA test, and would establish criminal penalties, including up to a 10-year prison sentence, for adults who misrepresent their familial ties to a minor. The bill is a companion to S. 903.

Sponsored by Representative Lance Gooden (R-Texas) (10 cosponsors — 10 Republicans, 0 Democrats)

03/26/2021 Introduced in the House by Representative Gooden

03/26/2021 Referred to the House Committee on the Judiciary

H.R. 2237

Guaranteed Refugee Admissions Ceiling Enhancement (GRACE) Act

The bill would prevent a U.S. President from setting the refugee admissions ceiling below 95,000 a year.

Sponsored by Representative Zoe Lofgren (D-California) (29 cosponsors — 29 Democrats, 0 Republicans)

03/26/2021 Introduced in the House by Representative Lofgren

03/26/2021 Referred to the House Committee on the Judiciary

H.R. 2255

The Healthcare Workforce Resilience Act

The bill would recapture 40,000 unused visas and use them to provide additional green cards to 25,000 physicians and 15,000 professional nurses. The visas would not count towards the annual limit and would be recaptured from a pool of over 200,000 employment-based visas left unused between 1992 and 2020. The bill would target mainly healthcare workers and their families already in the green card backlog and would require an employer attestation that the new workers would not displace current U.S. workers. The bill would allow the new green cards to be issued until 90 days after the declaration of a national emergency pertaining to the COVID-19 outbreak is ended. The bill is a companion to S. 1024.

Sponsored by Representative Bradley Schneider (D-Illinois) (3 cosponsors — 1 Democrat, 2 Republicans)

03/26/2021 Introduced in the House by Representative Schneider

03/26/2021 Referred to the House Committee on the Judiciary

H.R. ___

The Border Surge Response and Resilience Act

The bill would require the Department of Homeland Security (DHS) to develop a response plan to address increases in migrant arrivals at the U.S.-Mexico border. The bill would further require that the plan use concrete metrics, including measuring the length of time migrants are held in Customs and Border Protection (CBP) custody and the capacity of various facilities along the border. The bill would also create a $1,000,000,000 fund to be used by DHS to adequately respond to processing and security demands associated with an increase in migrant arrivals.

Sponsored by Representative John Katko (R-New York) (1 cosponsors — 1 Democrat, 0 Republicans)

04/01/2021 Introduced in the House by Representatives

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House will be in recess the week of Monday, April 5, 2021.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups currently scheduled for the week of Monday, April 5, 2021.

THEMES IN WASHINGTON THIS WEEK

Federal

Biden Administration Plans Reforms to Asylum System, Border Management Process

According to an April 1 NPR report, the Biden administration is planning significant reforms to the immigration court system in an effort to tackle a growing number of asylum cases as crossings at the U.S. Southern border approach their highest levels in 15 years.  The plan reportedly involves streamlining the asylum process at the Southern border by allowing U.S. Citizenship and Immigration Services (USCIS) asylum officers to adjudicate a portion of the cases. Asylum officers already adjudicate thousands of “affirmative” asylum cases each year made by those who are in the U.S. and not in removal proceedings.

Department of Homeland Security (DHS) Secretary Alejandro Mayorkas had previously stated that the administration plans to “shorten from years to months the time it takes to adjudicate an asylum claim while ensuring procedural safeguards and enhancing access to counsel.” According to Syracuse University’s Transactional Records Clearinghouse, as of February 2021, the immigration court system faces a backlog of nearly 1.3 million cases, with an average wait time  of approximately two and a half years.

VP Harris Continues Diplomatic Engagement with Central American Countries

According to a White House statement, Vice President Kamala Harris and Guatemalan President Alejandro Giammattei spoke by phone on March 30 to discuss working collaboratively to address the root causes of irregular migration to the U.S. The conversation came a week after President Biden tapped Harris to lead the administration’s response to the increase in unaccompanied children arriving at the Southern border.

Also on March 30, White House press secretary Jen Psaki specified that Vice President Harris’ assignment was primarily to engage in diplomatic outreach to governments in the region to establish a collaborate approach to migration and protection issues. In the meeting with President Giammattei, the Vice President reportedly discussed exploring “innovative opportunities to create jobs and to improve the conditions for all people in Guatemala and the region, including by promoting transparency and combating crime.”

President Biden has stated that Harris’ experience in the U.S. Senate, where she often led on immigration issues, makes her particularly well-suited to handle this diplomatic role.

Administration Allows Work-Visa Ban to Expire

On March 31, the Biden administration allowed a June 2020 Trump administration proclamation suspending some forms of immigration from outside the U.S. to expire. Presidential Proclamation 10052 had suspended entry for a number of individuals on temporary nonimmigrant visa categories, including H-1B visas for those in specialty occupations. The White House did not comment on the expiration of the ban.

On February 24, the Biden administration had previously revoked Presidential Proclamation 10014, which had suspended the entry for those on diversity visas and certain family visa categories. At the time, a number of business groups and immigration advocates had expressed concern that the work visa ban was allowed to stay in place.

President Trump had justified implementing the ban by stating that suspending immigration would help American workers and aid the economic recovery. However, according to a February 15 Wall Street Journal report, the ban on foreign workers instead resulted in American jobs being outsourced or left unfilled.

Processing for various work visa categories affected by the ban will now begin again. On April 1, USCIS completed the Fiscal Year (FY) 2022 H-1B lottery process designed to select 85,000 applications from a pool that has often topped 200,000 applicants in recent years. According to USCIS, nearly 275,00o unique registrants applied this cycle. Successful applicants will be able to begin working for their employers beginning October 1, 2021.

CBP Facilities Remain Overcrowded as Administration Continues to Respond to Increases in Children at the Southern Border

According to several reports the week of March 29, hundreds of unaccompanied children continue to arrive each day seeking protection at the Southern border, resulting in overcrowding in the facilities and shelters meant to house and process them. For the first time on March 30, the Biden administration allowed journalists to see conditions in the Customs and Border Protection (CBP) holding center in Donna, Texas, where the majority of arriving children are first held and processed. Reporters found severe overcrowding, with over 4,100 migrants present in a space designed for only 250 under COVID-19 social distancing guidelines. More than 500 children were being held in rooms designed for 32 or fewer.

When children at the border are determined to be unaccompanied, they are required by law to be transferred within 72 hours from CBP holding cells to ORR shelters, where they are then processed on to family members and other vetted sponsors as their immigration court cases proceed. The recent increase in arriving children has caused ORR shelters to reach operational capacity, resulting in a backup of children in CBP holding centers like the one in Donna. As of March 30, over 2,000 children at the Donna facility had been held there for longer than the maximum-allowed 72 hours.

The Biden administration has repeatedly said that the CBP facilities are not designed to house children, and that it has been working to create new facilities and spaces that are better equipped to care for them. The administration has opened or planned to open 9 emergency facilities under the care of the Department of Health and Human Services (HHS), adding an additional 16,000 beds for unaccompanied children.

Concerns remain about the standards of care at the emergency facilities as well. These facilities are not state-licensed, as permanent HHS shelters are, because the licensing process can take several months. According to a March 27 report, the administration has decided to no longer require FBI fingerprint background checks of certain volunteer caregivers at the emergency sites. In general, the administration has stated that it intends to treat children according to state licensing requirements even in the new facilities, including by providing mental health care, education, and legal services.

According to a March 28 report, in addition to adding emergency shelter space for children, DHS officials are also preparing for an increase in arriving asylum seeking families. Many families, along with the majority of all arriving migrants, continue to be expelled under a Trump-era health rule called Title 42. These families are returned to dangerous border areas in Mexico throughout the night, according to a March 28 report. In some instances, children traveling with indirect relatives like aunts and uncles are processed as unaccompanied and their family members are returned to Mexico. Other arriving families are released in the U.S. with booking records after parents are photographed and fingerprinted.

Number of Immigrants in ICE Detention Declines as Agency Continues to Pay for Empty Beds

According to an April 1 report, the number of individuals held in Immigration and Customs Enforcement (ICE) detention has declined significantly over the past year. The report found that the average daily number of immigrants in detention hit a decades-long high of about 52,000 in 2019 under the Trump administration. As of April 1, that number has fallen to just over 14,000, as a result of efforts to reduce detention levels in response to the COVID-19 pandemic, health-related releases of individuals who are deemed high-risk for COVID-19, as well as changes in enforcement priorities under the Biden administration.

The report stated that despite the decline in detentions, ICE is still paying more than $1 million a day to maintain empty detention beds. Congress no longer requires ICE to maintain a minimum number of beds, but because ICE has contracted with private companies for detention space, including providing for guaranteed minimum numbers of detention beds set prior to the COVID-19 pandemic, it now is paying for 29,000 detention beds, including thousands of beds it does not currently need. Private operators argue that they requested (and received) these contractual minimums in order to manage operations smoothly and respond to fluctuations in the number of detainees.

In a report released in February, the Government Accountability Office found that, “ICE has not taken a strategic approach to these decisions” and “has spent millions of dollars a month on unused detention space.”

Biden Administration Fires Homeland Security Advisory Council Members

On March 26, DHS Secretary Alejandro Mayorkas fired the majority of the Homeland Security Advisory Council (HSAC), an unpaid, independent body which meets about four times a year and provides advice and support to the agency. Members generally serve terms lasting between one and three years.

Among the more than 30 members ousted from the council were many close allies of former President Trump, as well as officials who had previously served in DHS under both Democratic and Republican administrations. According to DHS officials, the purge is part of a broader assessment and reform of the council that is designed in part to ensure more diverse voices are included.

According to Mayorkas, just three members of the council will be retained, including former New York police commissioner and current Chair of HSAC William Bratton, as well as former FBI and CIA director and chair emeritus William Webster. Bratton, a political independent, said that he understands that secretary Mayorkas’s goal is to reconstitute the body as a bipartisan, diverse council with expertise in addressing relevant issues including immigration, cybersecurity, and terrorism.

Lawmakers Introduce Bipartisan Bill Addressing Healthcare Worker Shortage

On March 25, Senator Dick Durbin (D-Illinois) introduced the Healthcare Workforce Resilience Act with a bipartisan group of cosponsors.  The bill seeks to respond to the healthcare worker shortage that has been particularly evident during the response to the COVID-19 pandemic by recapturing 40,000 unused visas and using them to provide green cards to immigrant doctors and nurses. Senator Todd Young (R-Indiana), a cosponsor of the bill, said that, “this bipartisan legislation will help ensure nurses can get visas to come to the United States to temporarily fill that shortage as we continue to combat the coronavirus pandemic, the growing opioid crisis, and other significant health challenges.”

Representative Bradley Schneider (D-Illinois) introduced companion legislation in the House, also with a bipartisan set of cosponsors. A previous version of the bill was introduced in 2020 but was not acted upon during the 116th Congress.

Immigrants make up approximately 21% of all U.S. doctors and 16% of all U.S. registered nurses.

Legal

No Immediate Action after Hearing in Texas DACA Case

On March 30, U.S. District Judge Andrew Hanen held a hearing in an ongoing federal litigation in Texas which will determine the fate of Deferred Action for Childhood Arrivals (DACA). DACA provides protection from deportation and work authorization to over 600,000 unauthorized immigrants who were brought to the U.S. as children. The lawsuit challenging the legality of DACA was brought by a group of Republican-led states, led by Texas, with the Mexican American Legal Defense and Educational Fund (MALDEF) and the state of New Jersey defending it.

Judge Hanen did not issue a ruling during the conference hearing, but has previously indicated that he may be inclined to strike down the program. In 2015, Hanen halted a different Obama administration deferred action program that would have protected the parents of U.S. citizens and lawful permanent residents. At the March hearing, Hanen heard a request from MALDEF to delay the ruling while both the Biden administration and Congress consider acting to further protect Dreamers, whether by strengthening DACA or by passing a permanent legislative solution. During the conference hearing, the judge asked counsel for the federal government about the specifics of the administration’s proposed changes and timeline. He also set an early April deadline for all sides to provide additional information to the court.

Biden Administration to Decide Whether to Disclose Child Separation Documents

On April 2, the Biden administration will decide whether or not to disclose a number of documents related to widespread instances of family separation in 2018 during the Trump administration. Specifically, the documents at issue are sought in a civil lawsuit filed by lawyers representing the separated families and relate to the Trump administration’s “zero tolerance” policy at the Southern border that resulted in the separation of thousands of migrant families. The Trump administration had previously withheld the documents, citing executive privilege, but it is not yet clear how Biden’s Department of Justice (DOJ) will handle the request.

A January 14 DOJ Office of Inspector General (OIG) report concluded that in 2018, DOJ leadership and the attorney general’s office were aware that the zero-tolerance policy would result in widespread family separation prior to implementation. According to an August  2020 report, senior White House officials at the time voted by a show of hands on whether to follow through with separating families.

The zero tolerance policy, which was met with widespread criticism from Members of Congress, faith groups, and the general public, resulted in the separation of more than 3,000 children from their parents in 2018.

GOVERNMENT REPORTS

Department of Homeland Security (DHS) Office of Inspector General (OIG): Violations of Detention Standards amid COVID-19 Outbreak at La Palma Correctional Center in Eloy, AZ; March 30, 2021

This OIG report examines treatment and care of immigrant detainees in the Eloy, Arizona Immigration and Customs Enforcement (ICE) detention center. The report found that the detention center did not adequately enforce COVID-19 precautions including facial coverings and social distancing, which may have contributed to an outbreak at the facility. The report further found that the facility did not provide adequate medical care, and that the medical unit was critically understaffed. Further, the detention center did not provide timely responses to grievances voiced by detainees.

Congressional Research Service (CRS): Increasing Numbers of Unaccompanied Alien Children at the Southwest Border; March 25, 2021

This CRS factsheet describes the increase in unaccompanied children at the southern border in the first five months of Fiscal Year (FY) 2021. The fact sheet provides some demographic details about the arriving children and describes the location where they have been encountered by Customs and Border Protection (CBP).

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Experts Discuss Solutions to Address the Situation at the Southern Border

This resource provides recording of a roundtable convened by the Council on National Security and Immigration and the National Immigration Forum focused on pragmatic solutions to addressing the current situation at the southern border. The page also includes links to a number of border-focused resources and reports from the participating organizations and experts.

Bill Analysis: Healthcare Workforce Resilience Act

This resource analyzes and provides context for the Healthcare Workforce Resilience Act, a bipartisan bill that would respond to the healthcare worker shortage by expediting green card processing for 40,000 immigrant doctors and nurses and their families.

President Trump’s Proclamation Suspending Immigration

This resource provides a summary of the June 22 proclamation suspending immigration and travel from outside the U.S. The resource describes who the proclamation applies to and lists various exemptions to the suspension.

* * *

*This Bulletin is not intended to be comprehensive. Please contact Danilo Zak, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Danilo can be reached at dzak@immigrationforum.org. Thank you.

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