Legislative Bulletin — Friday, December 3, 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. 3263

Upholding the Law at Our Border Act

The bill would require the Inspector General of the Department of Homeland Security (DHS) to investigate and submit a report on the vetting and processing of migrants apprehended along the southwest border, the total number of undocumented immigrants who were processed and released into the interior of the United States, the number of undocumented immigrants who received parole, and the total number of undocumented immigrants who have been placed in removal proceedings.

Sponsored by Senator Rick Scott (R-FL) (6 cosponsors— 6 Republicans, 0 Democrats)

11/18/2021 Introduced in the Senate by Senator Scott

11/18/2021 Referred to the Senate Committee on the Judiciary

H.R. 6022

Build Better Borders Act of 2021

The bill would increase civil monetary penalties for entering the United States between ports of Entry to $450,000. It would also allocate the funds collected from these fines to border wall construction along the United States’ southern border.

Sponsored by Representative Earl “Buddy” Carter (R-GA) (6 cosponsors— 6 Republicans, 0 Democrats)

11/18/2021 Introduced in the House by Representative Carter

11/18/2021 Referred to the House Committees on the Judiciary, Homeland Security, and Ways and Means

H.R. 6078

To amend the Immigration and Nationality Act to eliminate the annual numerical limitation on visas for certain immigrants, to require the Secretary of Homeland Security to grant work authorization to certain immigrants with a pending application for nonimmigrant status under such Act

Sponsored by Representative Jimmy Panetta (D-CA) (0 cosponsors)

11/23/2021 Introduced in the House by Representative Panetta

11/23/2021 Referred to the House Committee on the Judiciary

H.R. 6119

Further Extending Government Funding Act

The bill would extend government funding from December 4 through February 18. Concerning the evacuation of Afghan allies, the bill would allocate $7 billion in emergency assistance to help resettle Afghan refugees in the United States. Among other immigration provisions, the bill would provide $1.6 billion in additional funding to support shelter and other services for unaccompanied minors referred to the Department of Health and Human Services (HHS).

Sponsored by Representative Rosa DeLauro (D-CT)

12/02/2021 Introduced in the House by Representative DeLauro (0 cosponsors)

12/02/2021 Referred to the House Committee on Appropriations

12/02/2021 Passed in the House of Representatives after a 221-212 vote.

12/02/2021 Passed in the Senate after a 69-28 vote.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of December 6, 2021.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings scheduled for the week of Monday, December 6, 2021.

THEMES IN WASHINGTON THIS WEEK

Federal

Democrats Pitch Immigration Provisions of Build Back Better Act to Senate Parliamentarian

On December 1, Senate Democrats and Republicans presented before the parliamentarian — the chamber’s nonpartisan rules referee — their respective arguments in favor and against the inclusion of immigration provisions in the Build Back Better Act. The parliamentarian, who has previously ruled against the inclusion of a path to citizenship in reconciliation efforts, must determine whether providing temporary parole protection for millions of undocumented immigrants who entered the U.S. before 2011 is budget-related and consequently germane to reconciliation.

On December 2, Senator Dick Durbin (D-Illinois) said the parliamentarian was likely to rule on the parole provisions “within a day or two.” Senator John Cornyn (R-Texas), however, reportedly said he expected to hear a ruling back the following week.

The parole provisions in the bill would provide work authorization and protection from deportation to approximately seven million undocumented immigrants for a five-year period, once renewable. In addition to parole, the version of the bill that passed the House would also recapture unused green cards and would provide access to relief to over five million individuals currently stuck in green card backlogs — many of whom are already in the U.S. on temporary visas. These green card provisions have not yet been put before the parliamentarian.

While reconciliation bills are not subject to a Senate filibuster, all 50 Senate Democrats must be in lock-step in order to pass the effort with a simple majority. While Senate Democrats have been involved in the negotiations as the bill proceeded through the House, several have voiced concerns about particular aspects of the legislation and have not yet given their full endorsement to the House legislation. Among other issues, moderate Senator Joe Manchin (D-West Virginia), has raised the need to incorporate border security funding in the legislation, noting that “for us to even be talking about immigration without border security is ludicrous.” Meanwhile, progressive Senator Bernie Sanders (I-Vermont) has said he hopes to see the bill “strengthened in a number of ways.”

On November 22, 91 House Democrats sent a letter to their colleagues in the Senate urging them to disregard the parliamentarian’s guidance and include a pathway to citizenship in the bill before the Senate votes on it.

Biden Administration Announces Reimplementation of Migrant Protection Protocols (MPP)

On December 2, the Biden administration announced that they had reached an agreement with the Mexican government to reimplement the Migrant Protection Protocols (MPP), commonly known as the Remain in Mexico program. The program — projected to restart on December 6, beginning in the El Paso sector — requires migrants seeking asylum along the southwest border to wait in Mexico while their asylum claims are adjudicated, a process that often takes years.

The Biden administration stopped enrollment in MPP in January and officially terminated the program in June through a multi-page memorandum. However, on August 13 a federal judge in Texas ruled that the termination of MPP violated the Administrative Procedures Act (APA). After the U.S. Supreme Court declined to stay the ruling on August 24, the Biden administration was required to reimplement the program. On October 31, the administration issued a new, 39-page memo providing additional rationale for terminating the program, but a subsequent request to the courts to stay the ruling was denied.

However, the implementation of MPP required Mexico’s cooperation. According to a November 26 Reuters report, Mexico requested additional resources for providing shelter and legal counsel to those who are returned to Mexico under the program as well as the provision of COVID-19 vaccines. In the December 2 announcement, the administration did attest to some additional due process protections and noted that vaccines would be available and that the Mexican government had agreed to properly shelter and transport asylum seekers under the program.

MPP was first implemented by the Trump administration in 2019, and it immediately resulted in significant human rights and due process concerns. A regularly updated Human Rights First report has documented 1,544 publicly reported cases of murder, rape, kidnapping, and other violent assaults experienced by those forced to wait in Mexico under MPP. According to available data, just 7.5% of asylum seekers in MPP were able to hire a lawyer, and less than 2% of all applicants ultimately received some form of protection in the U.S., far below the average success of asylum claims made from within the U.S. In a December 2 statement, the United Nations Refugee Agency (UNHCR) announced that it would not support the reinstated policy.

CBP Announces New Guidelines for Pregnant, Nursing, and Infant Individuals in Custody

On November 29, U.S. Customs and Border Protection (CBP) announced a new policy to protect the rights of pregnant and nursing mothers, as well as infants in custody. The new strategy ensures pregnant mothers in CBP custody are offered medical assessments through onsite medical care and ensures that all childbirths in CBP custody are adequately treated. The new policy also ensures that nursing mothers have privacy when breastfeeding and grants them access to diapers, wipes, and infant formula.

These policy reforms are a result of a July 20, 2021 report from the Department of Homeland Security (DHS) Office of Inspector General (OIG) that highlighted an ACLU complaint that documented an incident at the Chula Vista Border Patrol station where a woman gave birth standing up while holding on to a garbage can. While the report found that CBP had complied with applicable policies during the incident in question, it concluded that the agency is unequipped to adequately track childbirths occurring in its facilities and does not take swift action to release newborns from its custody.

On November 1, a group of eleven Democratic senators wrote a letter to DHS Secretary Alejandro Mayorkas in the aftermath of the OIG’s report demanding CBP issue new policy guidance regarding the treatment of mothers and infants in detention. In the letter, they argued that “the CBP policy is inadequate and has exposed pregnant people and their U.S. citizen newborns to serious dangers related to their health and safety.”

Biden Administration Proposes Rule to Set Minimum Wages of Temporary Foreign Agricultural Workers

On December 1, the Department of Labor (DOL) announced a Notice of Proposed Rulemaking to modify the methodology used to determine the hourly Adverse Effect Wage Rates (AEWR), which informs the rate of pay received by temporary foreign agricultural workers through the H-2A visa program. If approved, the rule would formally reverse a Trump-era rule that had aimed to freeze wage rates for migrant farmworkers. Trump’s wage freeze aimed to lock in the minimum wage employers had to pay to foreign agricultural workers with H-2A visas at 2019 levels. However, farmworker advocates sued the Department of Agriculture over the proposed wage freeze and secured an injunction to stop the ruling.

Number of High-Skilled Immigrant Workers With H1-B Visas Declines Significantly

On November 30, Bloomberg News reported that the total number of individuals in the U.S. holding high-skilled jobs under the H1-B visa program has dropped to the lowest level in at least a decade.  Even as job openings in H-1B industries reached record highs, immigrant workers on the visas fell 12.6% in fiscal year 2021. The number represents the second consecutive annual decline of immigrants holding H-1B visas. According to immigration lawyers and experts, the drop was largely due to a significant slowdown in visa processing during lockdowns and tightened immigration policies stemming from the pandemic.

The H-1B visa program allows U.S. employers to hire high-skilled foreign workers for jobs in “specialty occupations.” The program is limited to 85,000 new visas annually, but that cap is typically exceeded immediately after the application opens, necessitating a lottery. In Fiscal Year (FY) 2019, for example, employers sent in over 200,000 H-1B petitions within the first five days of the portal opening. In 2020, the total number of petitions rose to a record-high 275,000.

Legal

Fifth Circuit Vacates Order that Allowed the Biden Administration to Implement Immigration Enforcement Priorities

On November 30, the full Fifth Circuit vacated a September 15 judgment that allowed the Biden administration to implement two Immigration and Customs Enforcement (ICE) memorandums regarding immigration enforcement priorities. The two memos, known as the Pekoske Memo and the Johnson Memo, encourage ICE to prioritize enforcement efforts concerning unauthorized immigrants who are either recent border-crossers or who may pose national security and public safety threats. The memos also instruct ICE agents to refrain from detaining or deporting victims of serious crimes and pregnant or nursing women.

The previous September 15 ruling argued that both memos fell within prosecutorial discretion, an inherent power of the Executive Branch, and stated that compromising such prosecutorial discretion could diminish the separation of powers. However, a majority of Fifth Circuit judges voted to vacate the decision and rehear the case against the preliminary injunction.

State & Local

New York City Council Considers Granting Noncitizens the Right to Vote in Local Elections

On December 9, the New York City Council will vote on a bill that would allow more than 800,000 noncitizen New Yorkers to vote in municipal elections and for local ballot initiatives. The right of suffrage for noncitizens, however, would be limited to green card holders and immigrants with a valid employment authorization documents. Moreover, noncitizens would still be restricted from participating in federal and state elections. If the legislation is approved, New York City will become the largest municipality in the United States to permit noncitizens to vote in local elections.

Currently, eleven municipalities in Maryland and two in Vermont already grant noncitizens some municipal voting rights. Additionally, in San Francisco and Chicago, noncitizens can vote in school board elections. Other municipalities in California, Maine, and Massachusetts are weighing similar legislation.

GOVERNMENT REPORTS

Congressional Research Service (CRS): U.S. Customs and Border Protection’s Powers and Limitations: A Primer; November 30, 2021

This legal sidebar from the Congressional Research Service (CRS) provides an overview of U.S. Customs and Border Protection’s (CBP) immigration and customs enforcement powers and the constitutional limitations to those powers. CBP is the agency in charge of enforcing federal customs and immigration laws at or near the international border and at U.S. ports of entry. Congress has established a comprehensive framework enabling CBP officers to inspect, search, and detain individuals to ensure their entry and any goods they import conform to these governing laws.

Congressional Research Service (CRS): Immigration Arrests in the Interior of the United States: A Primer; November 30, 2021

This legal sidebar from the Congressional Research Service (CRS) provides an overview of U.S. Immigration and Customs Enforcement’s (ICE) authority to conduct arrests and other enforcement actions. ICE is the federal agency responsible for immigration enforcement in the interior of the United States. ICE has the authority to arrest and detain non-U.S. nationals identified for removal due to immigration violations.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Explainer: DHS Immigration Enforcement Guidelines

This is an explainer on the new DHS immigration enforcement priorities issued on September 30. The new guidance provides flexibility to DHS personnel, who are advised to balance aggravating and mitigating factors when making enforcement determinations.

Fact Sheet: Border Funding in the Bipartisan Infrastructure Legislation

This fact sheet focuses on the immigration-related provisions of the bipartisan infrastructure bill, which was signed into law on November 15. The funding mainly focuses on improving and modernizing ports of entry.

Explainer: What’s Happening at the U.S.-Mexico Border

This regularly updated explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior. The explainer also includes a Facebook live discussion covering recent developments at the border.

* * *

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

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