Legislative Bulletin – Friday, December 4, 2020

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. 386

Fairness for High-Skilled Immigrants Act

The bill would remove per-country caps for employment-based green cards and increase per-country caps for family-sponsored green cards.  It would also provide a new status for nonimmigrant visa holders who are in the U.S. and waiting in the green card backlog and implement certain restrictions on the H-1B nonimmigrant worker program and on immigrants affiliated with the Chinese military. The House companion bill is H.R. 1044.

Sponsored by Senator Mike Lee (R-Utah) (34 cosponsors – 19 Republicans, 15 Democrats)

02/07/2019 Introduced in the Senate by Senator Lee

06/27/2019 Motion in the Senate to move forward on the bill by unanimous consent blocked by Senator Rand Paul (R-Kentucky)

09/19/2019 Motion in the Senate to move forward on an amended version of the bill by unanimous consent blocked by Senator David Perdue (R-Georgia)

10/17/2019 Motion in the Senate to move forward on an amended version of the bill by unanimous consent blocked by Senator Dick Durbin (R-Florida)

08/05/2020 Motion in the Senate to move forward on an amended version of the bill by unanimous consent blocked by Senator Rick Scott (R-Florida)

12/02/2020 Passed in the Senate by unanimous consent

H.R. 8793

Hurricane Eta Relief Act

The bill would provide Temporary Protected Status (TPS) to individuals from Nicaragua, Honduras, and Guatemala for 18 months. The bill would also allow these individuals to travel abroad while benefiting from TPS.

Sponsored by Representative Nydia Velazquez (D-New York) (17 cosponsors – 17 Democrats, 0 Republicans)

11/19/2020 Introduced in the House of Representatives by Representative Velazquez

11/19/2020 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session from Monday, December 7, 2020 to Thursday, December 10, 2020.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups currently scheduled in the U.S. Senate or the U.S. House of Representatives.

THEMES IN WASHINGTON THIS WEEK

Federal

Biden Transition Team Continues Planning Immigration Changes

According to multiple news reports, President-elect Biden’s transition team is continuing to plan a number of changes to the immigration system within the first 100 days of the new administration. In an NBC News interview on November 24, Biden pledged to send an immigration bill to Congress in his first 100 days that provides a pathway to citizenship for more than 11 million undocumented individuals.

President-elect Biden has also vowed to “restore and defend” legal immigration, undo the Trump administration’s travel bans on predominantly Muslim countries, freeze construction of barriers on the Southwest border, and increase and invest in refugee resettlement. He has also promised to restore full access and protections under Deferred Action for Childhood Arrivals (DACA), although a case challenging DACA’s legality is being actively litigated. The new administration has also pledged to reverse some of the Trump administration’s restrictions to the asylum system and bring a more humanitarian approach to the border, but the transition team has stated that some of these restrictive policies may take time to unwind.

The president-elect has also begun nominating members of his future cabinet that are likely to play key roles in affairs relating to immigration. Biden tapped Alejandro Mayorkas, a Cuban American immigrant and former Obama administration director of U.S. Citizenship and Immigration Services (USCIS) and deputy secretary of the Department of Homeland Security (DHS). Mayorkas would be the first immigrant and first Latino to lead the agency and was responsible for devising and implementing DACA while he was serving as deputy DHS secretary in 2012.

Biden also said he is nominating Antony Blinken, former deputy secretary of State under President Obama, to lead the Department of State in the new administration. Blinken, who has discussed his own family’s history of forced migration, has long been a strong advocate for increased refugee resettlement.

Trump Administration Plans Final Immigration Restrictions

According to a November 30 news report, the Trump administration is continuing efforts to limit immigration in the months leading up to Inauguration Day on January 20. The administration has already issued a series of regulations and policy manual changes in the weeks after the presidential election, including a change to institute a longer and more complicated citizenship test and the implementation of additional guidelines providing immigration officials more discretion to deny adjustment of status applications. The administration is also rushing to finalize a series of proposed regulations restricting asylum seekers, H-1B high-skilled temporary workers, and international students.

Additionally, the administration has continued to accelerate construction of barriers on the Southwest border. Barriers are currently being constructed at almost double the rate they were at the start of the year and 402 total miles have been built as of November 13.

The Biden transition team has said it plans to reverse some of these limitations after the president-elect takes office on January 20.

U.S. Agrees to Stop Deportations of Whistleblowers in Georgia Detention Facility

The Trump administration has agreed to halt planned deportations of women alleging medical abuse committed by a gynecologist at the Irwin County Detention Center in Georgia. Justice Department lawyers filed an agreement between the parties with the federal District Court in Georgia to halt deportations of women making “substantially similar factual allegations” until at least January 21, 2021. ICE had already deported at least six women alleging abuse or mistreatment at the facility.

The women’s allegations are part of an ongoing investigation of the Irwin facility following a September 14 whistleblower complaint alleging that numerous detainees at Irwin were subjected to medical mistreatment, including a high rate of unwanted invasive surgeries.

On November 19, over 100 congressional Democrats sent a letter to ICE director Tony Pham demanding the release of the detainees who allege they received improper gynecological care while detained at the facility. The letter also calls for the women to receive certifications to apply for U-visas, which are granted to victims of certain crimes who are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Legal

Federal Court Orders DACA Must Be Fully Reinstated

On December 4, a federal judge ordered that limitations placed on Deferred Action for Childhood Arrivals (DACA) in a July 28 DHS memorandum must be set aside and that the administration should fully reinstate DACA protections. The order came after the judge ruled on November 14 that the memo was invalid because it was issued while acting DHS secretary Chad Wolf was improperly appointed to his position. Issued after the U.S. Supreme Court permitted DACA to survive, the Wolf memo prevented DHS from accepting new DACA applications and only allowed existing DACA recipients to renew their protections for one year, rather than two years. The most recent order fully restores the DACA program to its status before September 2017, providing two years of protection to recipients and permitting new applications.

According to the Migration Policy Institute, more than 1.3 million U.S. residents are eligible for DACA.

Federal Courts Rule in Favor of High-Skilled Immigration Worker Programs

On November 30, December 1, and December 2, three separate federal courts ruled to protect legal immigration programs for high-skilled workers. On December 1 and 2, two different Federal courts issued decisions blocking two Trump administration rules that restrict the H-1B nonimmigrant visa program for high-skilled “specialty occupation” workers. On November 30, a federal judge announced he plans to rule against a challenge to the Optional Practical Training (OPT) program, which allows graduating international students to temporarily stay in U.S. and work in a field related to their degree.

The two H-1B rules, one issued by the Department of Labor (DOL) and one issued by the Department of Homeland Security (DHS), sought to significantly raise minimum wage requirements and limit eligibility for prospective H-1B employers and employees. The U.S. Chamber of Commerce brought the case decided on December 1, and the law firm of Wasden Banias, on behalf of a number of H-1B employer groups, filed the case decided the following day. Both judges ruled that neither DHS nor DOL had “good cause” to bypass required public notice and comment procedures when they attempted to expedite implementation and issue the regulations as interim final rules.

The third case concerned a challenge to the OPT program, which is one of the few paths available to international students seeking to stay and work in the U.S. after they graduate. The Washington Alliance of Technology Workers (WashTech) brought the case alleging that DHS lacked the authority to establish OPT. On November 30, a federal judge in D.C. ruled in favor of OPT, which has existed in some form since 1952, bringing an end to a suit that had been ongoing since 2016.

Supreme Court Reviews Plan to Exclude Undocumented Immigrants from Apportionment Count

On November 30, the U.S. Supreme Court heard oral arguments regarding the July 21 presidential memorandum which directed the Census Bureau to use existing government data to calculate and exclude undocumented immigrants from the 2020 census apportionment count, which determines the number of seats in the House of Representatives for each state. A lower court had previously ruled the memorandum was unlawful, noting the constitution requires all persons, regardless of immigration status, to be included in the reapportionment count.

The Supreme Court justices appeared skeptical of the president’s authority to exclude undocumented immigrants from congressional apportionment, and considered the option of waiting to make a final decision until after the Census Bureau provides more information on how they would determine the undocumented population. Acting Solicitor General Jeffrey Wall stated it was “very unlikely” that the Bureau would be able to identify the population of undocumented immigrants in the country in a manner that could be used for apportionment purposes by the December 31 deadline.

The law requires President Trump to advise Congress on the outcome of the 2020 census and the number of representatives each state should receive by January 10, 2021. The U.S. Supreme Court is expected to make a final decision before that date.

U.S. Appeals Order Banning Rapid Expulsions of Unaccompanied Children

On November 23, the U.S. Department of Justice (DOJ) appealed a judge’s preliminary injunction blocking the Trump administration from summarily deporting unaccompanied children without first allowing them to request humanitarian protection or properly screening them for signs of human trafficking.

The ruling concerned deportations of children arriving at the border that have been occurring under an emergency Centers for Disease Control and Prevention (CDC) rule issued in response to the onset of the COVID-19 pandemic. The judge had disagreed with the administration’s argument that this rule, issued under title 42 of the 1944 Public Health Service Act, gives DHS the authority to expel or deport any individuals arriving at the border, regardless of whether they posed a particular risk for spreading the virus or were intending to seek asylum or another form of protection. Over 13,000 unaccompanied children have been subject to these “Title 42” expulsions since March.

In the appeal, the DOJ argued that the injunction, issued on November 18, will lead to an influx in unaccompanied children arriving at the border and increase the spread of COVID-19 in border communities. U.S. Customs and Border Protection did report an increase in child arrivals from November 18 to November 23, but it is unclear whether that increase came as a result of the ruling.

Federal judges also recently ruled in two other cases concerning removal proceedings. On November 30, a judge in New York ruled that newly detained immigrants must be able to have their cases heard before a judge within 10 days. In the case, the judge stated that DHS does not “have an unfettered right to detain” immigrants. On December 2, a federal judge in D.C. also ruled to uphold two Trump administration pilot programs — Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) — that aim to expedite the asylum review process, including by limiting asylum seekers’ access to counsel and due process and holding them in CBP facilities that are not intended for prolonged stays.

Ninth Circuit Rules Against Trump Administration’s Public Charge Rule

On December 2, the U.S. Court of Appeals for the Ninth Circuit ruled against the Trump administration’s public charge rule, stopping implementation of the rule within territory under the court’s jurisdiction. If implemented, the ruling would apply to 19 states that were co-plaintiffs in the lawsuits, including California, Illinois, Pennsylvania and Michigan. On November 4, the U.S. Court of Appeals for the Seventh Circuit had allowed the public charge rule to go into effect nationwide while litigation continued. The Ninth Circuit’s decision is the latest in the on-going legal battle over the policy since its introduction in October 2019, which has seen the rule repeatedly go into and out of effect in individual states and across the country. U.S Citizenship and Immigration Services (USCIS) has not yet issued guidance concerning implementation of the most recent ruling.

The public charge rule allows officials to deny admission, visa renewals, or permanent residency to certain noncitizens based on their use of certain public benefits. During the ongoing coronavirus pandemic, health experts and immigration advocates have warned that implementing the public charge rule has discouraged immigrants from seeking out vital healthcare and other services.

GOVERNMENT REPORTS

Government Accountability Office (GAO): SOUTHWEST BORDER: Information on Federal Agencies’ Process for Acquiring Private Land for Barriers, November 17, 2020

In this report, the Government Accountability Office (GAO) reviewed the government’s efforts to acquire privately owned land along the southwest border for the construction of border barriers. The report further outlines the legal steps for acquisition of land, which include identifying landowners affected by planned barriers, contacting the landowners to obtain access to their property for surveying, negotiating with landowners, and concluding the acquisition. The GAO found that the government’s land acquisition for the purpose of border barrier construction has not violated this process.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Law Enforcement, Business Leaders Praise Mayorkas DHS Pick

This resource provides quotes from police chiefs, sheriffs, and business leaders welcoming president-elect Biden’s nomination of Alejandro Mayorkas to lead the Department of Homeland Security.

Explainer: The Trump Administration’s New Rules Restricting H-1B Workers

This resource provides information about three recent Trump administration rules impacting the H-1B nonimmigrant visa program for “specialty occupations.” The explainer describes the provisions and possible impacts of the rules as well as the current state of play.

Explainer: Amendments to the Fairness for High Skilled Immigrants Act

This explainer provides an overview of the amendments made to the Fairness for High Skilled Immigrants Act, a bill which would provide relief to certain individuals in the green card backlog.

* * *

*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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