Legislative Bulletin – Friday, June 12, 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.3599

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 novel coronavirus (COVID-19) outbreak is ended. The bill is a companion bill to H.R. 6788.

Sponsored by Senator David Perdue (R-Georgia) (28 cosponsors – 14 Democrats, 13 Republicans, 1 Independent)

05/05/2020 Introduced in the Senate by Senator Perdue

05/05/2020 Referred to the Senate Committee on the Judiciary

H.R. 6788

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 novel coronavirus (COVID-19) outbreak is ended. The bill is a companion bill to S. 3599.

Sponsored by Representative Bradley Schneider (D-Illinois) (41 cosponsors – 27 Democrats, 14 Republicans)

05/08/2020 Introduced in the House of Representatives by Representative Schneider

05/08/2020 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 the week of June 15, 2020.

UPCOMING HEARINGS AND MARKUPS

CBP Oversight: Examining the Evolving Challenges Facing the Agency

Date: Tuesday, June 23, 2020 (Senate Homeland Security and Government Affairs Committee)

Location: 562 Dirksen Senate Office Building and via Videoconference

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Federal

Trump Administration Moves to Restrict Temporary Workers

According to multiple reports, the Trump administration is expected to announce a suspension of certain temporary employment-based immigration programs. Among the programs expected to be suspended are H-1B specialty occupation visas, H-2B seasonal guestworker visas, L-1 intracompany transferee visas and J-1 visas for exchange visitors. The suspensions, part of a broader slate of restrictions that might also include regulatory changes to visa application and eligibility criteria, have reportedly been drafted and approved by relevant agencies and are awaiting the President’s approval. The plans come after weeks of reports that the administration is considering an expansion and extension to the April 22 proclamation suspending some permanent immigration to the U.S. That proclamation is set to expire on June 22.

The proposed suspensions would only apply to temporary visa applicants and recipients outside the U.S., although some of the reported regulatory restrictions – including one targeting the Optional Practical Training program, which allows international students to stay and work for one to three years after they graduate – could impact those who are already here. Immigration lawyers have called for relevant visa holders who are currently outside the country to return immediately so as not to be impacted.

According to the reports, the administration will use the economic downturn during the COVID-19 public health emergency to justify the coming restrictions. Critics of the proposal have noted that the administration’s recent celebration of the June 5 jobs report and boasts that an economic recovery is already underway contradict the rationale that emergency action is needed to restrict immigrants. Others have argued that the restrictions may prevent small businesses from accessing the workers they need, hamstringing them just as they begin to recover from the crisis. On May 27, a group of Republican Senators wrote a letter to the administration in support of guestworker programs, writing that the programs are needed to “get back to pre-pandemic levels of growth as quickly and safely as possible.”

Trump Administration Proposes New Regulations to Dramatically Restrict Asylum

On June 10, the Trump Administration proposed regulations that would have far-reaching negative impacts on the U.S. asylum system. The regulations, which are set to be published as a proposed rule in the Federal Register on June 15, include sweeping restrictions that would impact everyone seeking protection from the U.S. government. Among other reforms, the rule would curtail the opportunities asylum seekers have to make their case before an immigration judge, raise the threshold of proof at a number of stages in the asylum process, and institute limits on what kinds of persecution constitutes grounds for receiving protection.

Among the changes in the proposed regulation is a section that interprets the Convention Against Torture such that any pain or suffering committed by a “rogue government official” does not count towards an individual’s claim to protection. Another clause precludes protective status if an asylum seeker has not applied for asylum in “at least one country through which [they] have traveled en route to the United States.”

Immigration advocates and analysts have said that “the proposed changes would represent the end of the asylum system as we know it,” and have raised concerns that the proposed provisions are “counter to everything that the asylum system is built on, to draw a red line and say that these types of victims are completely ineligible for asylum.”

The proposed rule is the latest in a long list of asylum restrictions implemented or considered by the administration. Most recently, access to asylum protections at the Canada and Mexico borders has been effectively eliminated for both adults and unaccompanied children due to a Centers for Disease Control and Prevention (CDC) rule issued in response to the COVID-19 pandemic. The CDC rule authorizes Customs and Border Protection (CBP) to immediately expel all unauthorized border crossers, including those expressing fear of persecution.

White House Reportedly Considering Push for DACA Deal as Supreme Court Decision Looms

With a Supreme Court decision on the Deferred Action for Childhood Arrivals (DACA) program expected within weeks, a June 7 report in Politico suggests President Trump is hoping to use the program as leverage for a broader immigration deal to be potentially negotiated this summer. If the Supreme Court allows the administration to end DACA, the White House is planning to initiate a slow wind-down of the program, giving time for Congress to act and a deal to be struck to protect the approximately 650,000 recipients.

The report notes that previous DACA negotiations during the Trump administration have been unsuccessful, which may make some members hesitant to engage with the administration around the program, particularly as the November election nears. While reaching a deal may be difficult, leaving DACA recipients in limbo is seen as politically fraught for both parties. A CBS News poll released June 8 revealed that a large majority of both Democrats and Republicans favor allowing Dreamers to stay in the U.S.

Some Naturalization Services Resume as Backlog Continues to Grow

According to a June 10 report, U.S. Citizenship and Immigration Services (USCIS) has held naturalization ceremonies for approximately 2,000 people since reopening some offices and resuming limited services on June 4. USCIS had closed all field offices and suspended in person services on March 18 due to the COVID-19 pandemic, resulting in a growing backlog of those seeking to take the final step in the citizenship process and participate in a naturalization oath ceremony. The resumed ceremonies have been modified and limited to follow public health guidelines, and the reduced capacity means the agency has been able to conduct only a fraction of the 60,000 naturalizations that occurred each month before the spread of the pandemic. The limited number of oath ceremonies means the naturalization backlog, which has ballooned to an estimated 860,000 people during USCIS closures, continues to grow.

Democratic and Republican lawmakers have urged the administration for months to conduct virtual naturalization ceremonies to help increase capacity during the pandemic and tackle the massive backlog, but USCIS has argued that federal regulations require the ceremonies to be held “in person.”

The limited reopening of USCIS offices comes as the agency has announced it is mired in a severe budget crisis and has submitted a request for $1.2 billion in supplemental funding from Congress. A June 11 report stated that unless the agency receives the emergency funding, it will send furlough notices to 15,000 of its 19,000 employees on or around June 19. The fee-based agency has argued the shortfall is due to the pandemic, although critics have argued that COVID-19 only exacerbated problems that already existed due to mismanagement of the agency. USCIS has overseen dramatic increases in backlogs and application denials over the past few years.

Furloughs would even further reduce the capacity of the agency to conduct vital services such as naturalization ceremonies.

COVID-19 Cases Spike Among Immigrant Farmworkers as Federal Authorities Issue Optional Safety Guidelines 

As the harvest season begins, the mostly immigrant agricultural workforce in rural communities like Guilford County, North Carolina; Yakima Valley, Washington; and Immokalee, Florida are experiencing major outbreaks of COVID-19.

The federal government has deemed farmworkers to be essential, but has not issued mandatory safety rules to protect them from the coronavirus. Rather, precautions to slow the spread are up to the discretion of farm owners, with cases among farmworkers increasing across the country. Many farms have taken steps to protect their workforce, including by providing sanitation stations at the workplace and spreading out beds in worker housing. On June 3, the Center for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) issued new guidelines for farm workers to control the spread of COVID-19. Compliance with the new guidelines is optional.

Farmworker advocates are concerned that even as farms implement protective measures consistent with the new optional guidelines, the steps will not be enough to prevent the virus’ spread. This poses danger to the country at-large, particularly as hundreds of thousands of farmworkers migrate across the country for the harvest season. Advocates have called for additional health resources and funding for under-resourced rural communities to respond to the crisis.

In response to the nearly 1,000 new cases in Immokalee, Florida, international medical aid organization Doctors Without Borders is planning to conduct its first-ever project in the U.S., which would involve setting up a mobile clinic to test farmworkers and provide sanitation equipment.

Approximately 70% of the U.S. farming workforce is made up of undocumented immigrants.

U.S. Resumes Deportation Flights to Guatemala

On June 9, the United States resumed deportation flights to Guatemala, nearly a month after Guatemala moved to suspend them after at least 186 deportees tested positive for COVID-19. Nearly all passengers aboard the last flight before the suspension had contracted the virus. The flight on Tuesday carried 50 passengers from Alexandria, Louisiana to Guatemala City. All deportees who arrived Tuesday had medical certificates from the U.S. saying they were free of the virus and will be tested again upon arrival. Two more flights have reportedly been scheduled for next week, with about 5,500 Guatemalans remaining in Immigration and Customs Enforcement (ICE) custody in the U.S.

Despite the temporary suspension, some “humanitarian” deportation flights of unaccompanied children and families detained at the U.S-Mexico border have continued unabated over the past month.

Legal

Administration Sued Over Summarily Deporting Migrants During Pandemic 

On June 9, a number of civil rights organizations, including the American Civil Liberties Union (ACLU) and the Texas Civil Rights Project, filed a suit challenging the CDC’s March rule barring unauthorized immigrants from entering the U.S. As of the suit’s filing, the rule has resulted in the summary expulsion of approximately 45,000 individuals, including thousands of adults and unaccompanied children who had arrived at the border seeking protection from persecution. The advocacy groups responsible for the suit argue that the CDC rule violates U.S. statutory protections offered to asylum seekers and unaccompanied children.

The suit was filed on behalf of a 16-year old unaccompanied minor from Honduras who was detained by border agents and refused access to the asylum system. A federal judge in Washington ruled to temporarily delay the minor’s deportation while the case is pending. The ACLU also filed a similar suit on behalf of a 13-year-old girl who had been deported to El Salvador after attempting to reunite with her mother in the U.S. Both children were fleeing gang violence in their respective home countries.

Judge Rules ICE Practice of Arresting Immigrants at Courthouses Illegal

On June 10, a federal district judge in Manhattan ruled that the U.S. Immigration and Customs Enforcement (ICE) practice of making arrests in and around New York State courthouses was illegal. The practice in question comes from a 2018 directive that allowed immigration officers to make arrests in courthouses. The judge argued that ICE’s practices were “in violation of longstanding privileges and fundamental principles of federalism and of separation of powers.”

New York State attorney general Letitia James and the Brooklyn district attorney Eric Gonzalez brought the suit. They argued that ICE’s practices disrupted court proceedings and had “deterred victims from reporting crimes, plaintiffs from bringing lawsuits and witnesses from helping law enforcement out of fear they would be detained.” ICE officials claimed that courthouses were a safe place to confront immigrants, because people are screened for weapons before they enter. The agency also said that immigration officers only turned to courthouses “as a last resort.” The agency is currently reviewing the court’s order to determine an appropriate response and course of action.

The ruling is the second decision against ICE’s courthouse arrest policy. In 2019, a Massachusetts judge granted a preliminary injunction that blocked the agency from making civil arrests of undocumented immigrants inside state courthouses.

GOVERNMENT REPORTS

Government Accountability Office (GAO): Decision: Matter of U.S. Customs and Border Protection – Obligations of Amounts Appropriates in the 2019 Emergency Supplemental, June 11, 2020

This GAO decision, part of a broader audit of U.S. Customs and Border Protection (CBP), found that the agency committed statutory violations when it used supplemental funding appropriated for migrant care in 2019 on items like dirt bikes, boats, and the CBP canine program. The decision noted that, “under the purpose statute, appropriations are available only for the purpose for which Congress has provided them.” GAO found that CBP violated the purpose statute when it misused funds Congress had appropriated for “consumables and medical care” and “establishing and operating migrant care and operational facilities.” GAO recommended that CBP adjust its accounts to replenish the misallocated funding.

Department of Justice Office of the Inspector General (OIG): Audit of the Executive Office for Immigration Review’s Fiscal Year 2019 Financial Management Practices, June 2020

This report examines the Executive Office for Immigration Review’s (EOIR) budget planning process and its coordination with other sub-agencies of the Department of Justice (DOJ), such as the Justice Management Division (JMD). The report finds that EOIR had failed to accurately track and forecast the costs of immigration court interpreter fees, which resulted in the organization deciding to unnecessarily cut a number of immigration court interpreters and replacing them with the use of “know your rights” videos. In the report, the OIG recommends that EOIR improve its financial management, coordination with other sub-agencies, and communication with budgetary staff.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Immigrants as Economic Contributors: Complementing Not Competing

This resource, part of the National Immigration Forum’s “Immigrants as Economic Contributors” paper series, describes the contributions of immigrant workers to the U.S. economy. The paper provides evidence to support the idea that immigrants fill crucial U.S. workforce needs and do not displace U.S.-born workers.

Factsheet: U.S. Asylum Process

This fact sheet provides an overview of the U.S. asylum process. It describes the asylum application process, noting how long the U.S. asylum process takes and the number of individuals that successfully acquire asylum each year.

Bill Summary: Farm Workforce Modernization Act

This is a bill summary of the Farm Workforce Modernization Act of 2019, which seeks to reform the process by which temporary foreign workers come to the United States to work in agriculture. The bill includes a pathway to legalization for certain undocumented agricultural workers and reforms to the existing H-2A temporary agricultural workers visa program.

* * *

*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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