Legislative Bulletin – Friday, June 26, 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. 4011

The Immigration Enforcement Moratorium Act

The bill would halt all deportations during the COVID-19 pandemic and provide for the supervised release of all those who have received removal orders. It would also halt interior enforcement and arrests of noncitizens during the pandemic. The bill would further provide for the processing of individuals making asylum and other protective claims at the border, and it would suspend all in-person immigration court proceedings.

Sponsored by Senator Edward Markey (D-Massachusetts) (4 cosponsors – 4 Democrats, 0 Republicans)

06/18/2020 Introduced in the Senate by Senator Markey

06/18/2020 Referred to the Senate Committee on the Judiciary

S. 4071

The American Citizen Coronavirus Relief Act

The bill would amend the Coronavirus Aid, Relief, and Economic Security (CARES) Act to allow U.S. citizens in mixed-status couples access to COVID-19 stimulus checks. The bill would amend the CARES act to no longer require an SSN for spouses filing taxes jointly. The bill is a companion to H.R. 7346.

Sponsored by Senator Marco Rubio (R-Florida)(1 cosponsor – 1 Republican, 0 Democrats)

06/25/2020 Introduced in the Senate by Senator Rubio

06/25/2020 Referred to the Senate Committee on Finance

H.R. 7326 

This bill would ensure that efforts to engage in espionage or technology transfer are considered in visa issuance.

Sponsored by Representative Vicky Hartzler (R-Missouri) (12 cosponsors – 12 Republicans, 0 Democrats)

06/25/2020 Introduced in the House by Representative Hartzler

06/25/2020 Referred to the House Committee on the Judiciary

H.R. 7346

The American Citizen Coronavirus Relief Act

The bill would amend the Coronavirus Aid, Relief, and Economic Security (CARES) Act to allow U.S. citizens in mixed-status couples access to COVID-19 stimulus checks. The bill would amend the CARES act to no longer require an SSN for spouses filing taxes jointly. The bill is a companion to S. 4071.

Sponsored by Representative Mario Diaz-Balart (R-Florida)(0 cosponsors)

06/25/2020 Introduced in the House by Representative Diaz-Balart

06/25/2020 Referred to the House Committee on Ways and Means

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session from Monday, June 29 to Thursday, July 2.

UPCOMING HEARINGS AND MARKUPS

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

THEMES IN WASHINGTON THIS WEEK

Federal

Trump Administration Extends and Expands Broad Immigration Restrictions

On June 22, President Trump issued a presidential proclamation extending and expanding on his April 22 suspension of some permanent immigration from outside the U.S. The proclamation expands the restrictions to include suspensions on issuances of H-1B specialty occupation visas, H-2B nonagricultural guestworker visas, L intracompany transferee visas and some J-1 exchange visas to applicants who are outside the country on the date of enactment. The extension of the April immigration suspension and these new additional restrictions on temporary nonimmigrants will be in place until at least the end of the calendar year, December 31, 2020. The proclamation exempts the spouses and children of U.S. citizens, those working in the U.S. food supply, certain healthcare workers involved in the COVID-19 response, and those whose entry is deemed to be in the national interest.

In addition to these restrictions, the proclamation also directs various federal agencies to promulgate restrictive regulations, including regulations preventing those who have been rendered removable in immigration court from accessing work authorization, and other regulations further preventing nonimmigrant workers from adversely affecting the U.S. workforce. The administration said the proclamation was implemented in order to aid the economic recovery from the economic fallout of the COVID-19 pandemic.

Lawmakers, labor economists, and a series of prominent business leaders have criticized the proclamation. Senator Lindsey Graham (R-South Carolina) said that the proclamation will have a “chilling effect on our economic recovery,” noting that “legal programs allowing American companies to secure qualified, legal labor throughout the world have benefitted economic growth in the United States.” Chief executives at major technology corporations including Google, Apple, Microsoft, and Facebook all issued statements opposing the restrictions.

While the expansion of restrictions to nonimmigrant worker programs is likely to have an outsized effect on a variety of U.S. employers, the proclamation will also significantly impact family and diversity-based immigration. Many H-1B recipients were suddenly separated from spouses and children who were abroad when the proclamation was enacted. The Diversity Immigrant Visa Program, designed to allow additional immigration opportunities to people from countries with relatively low rates of immigration to the U.S., has been all but eliminated for Fiscal Year (FY) 2020 as a result of the proclamation.

Dreamers Still Face Uncertainty After Supreme Court Upholds DACA

The Trump administration has indicated that it will resume its efforts to terminate Deferred Action for Childhood Arrivals (DACA), following the Supreme Court’s June 18 ruling rejecting its 2017 attempt to rescind the program. In a 5-4 ruling, the court determined that the administration failed to provide sufficient justification for the 2017 attempt to rescind DACA, but it did not rule out future attempts to end the program, as long as the administration uses proper administrative procedures and provides a well-reasoned explanation for its actions.

The day after the decision on June 19, President Trump tweeted, “we will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling,” and has since directed the Department of Homeland Security (DHS) to review the ruling and resubmit an updated request to rescind DACA. U.S. Citizenship and Immigration Services (USCIS) deputy director for policy Joseph Edlow criticized the Supreme Court’s decision as having “no basis in law,” with acting secretary of DHS Chad Wolf and acting deputy secretary of DHS Ken Cuccinelli calling DACA “unlawful” and “illegal,” respectively.

DACA also faces renewed threats from a 2018 lawsuit brought against it by a group of Republican state attorneys general that had been paused during the Supreme Court proceedings. Immediately following the Supreme Court decision, Texas attorney general Ken Paxton confirmed that the group will continue pursuing its lawsuit and U.S. district Judge Andrew Hanen, who is presiding over the case, indicated he would set a new timetable for the litigation to proceed after receiving filings from the parties.

Legal experts said that the Supreme Court decision should allow access to DACA for eligible new applicants, not just those seeking to renew their authorizations. As of June 25, USCIS has not issued new guidance on receiving new applications and continues to only accept renewal requests. A spokesperson for USCIS said they are still reviewing the Supreme Court decision and had no further comment.

While reaching a legislative agreement on DACA before the November election is likely to be challenging, a permanent legislation solution remains essential to Dreamers and the employers, workers and communities who depend on them. Polling suggests that two-thirds of Americans support a path to citizenship for Dreamers.

Trump Administration Finalizes New Rules Affecting Work Authorization for Asylum Applicants

On June 22, the Trump administration announced a rule that would limit asylum seekers’ ability to obtain employment authorization. The rule, which goes into effect on August 25, lengthens the time asylum seekers must wait to apply for employment authorization from 150 days to a full year, and bars asylum seekers who crossed into the country between ports of entry and those who did not file for asylum within one year of entry from applying for work authorization. Officials say the rule “restores integrity to the asylum system” and deters fraudulent claims.

A second recently-finalized rule would remove a 30-day window to process documents authorizing work for asylum seekers. Currently, USCIS is required to grant or deny an initial employment authorization application within 30 days from when the application is filed. The new rule removes this provision and will also go into effect in August.

Immigration advocates have said the new rules endanger the health and safety of asylum seekers and their families, and that they would undermine the ability of many asylum seekers with legitimate and credible cases from making it through the lengthy legal process. Many of these concerns were raised in 2019 when both rules were up for public comment. In response to one such comment, the Department of Homeland Security acknowledged that the rules are likely to leave some asylum seekers in desperate circumstances, stating that asylum seekers “should become familiar with the homelessness resources provided by the state where they intend to reside.”

Another broad and restrictive proposed asylum rule is currently published in the federal register and open for public comment until July 15.

USCIS Continues to Face Budget Shortfall, Coming Furloughs

USCIS continues to report significant budgetary shortfalls and plans to furlough around 13,400 of its 18,700 employees beginning August 3. In May, the fee-funded agency announced it would be requesting $1.2 billion in supplemental emergency funding from Congress in order to remain solvent, and noted that it planned to increase application fees in the future to repay the additional funds. The agency says the recent financial strain is due to a drastic decline in green card and other visa applications since the COVID-19 pandemic began. Critics have argued that the pandemic only exacerbated problems that already existed due to mismanagement of the agency. The agency has overseen significant increases in backlogs and application denials over the past few years.

Despite the coming furloughs, the administration has not yet submitted a formal request to Congress for supplemental funding.

U.S. Troops to Stay at Border Until 2021

On June 25, Secretary of Defense Mark Esper approved a request from DHS to keep up to 4,000 U.S. troops stationed at the U.S. border until 2021. The troops will assist Customs and Border Protection (CBP) by engaging in surveillance, transportation assistance, and logistics efforts. They will not be actively engaging in law enforcement activities. The newly authorized 4,000 troops is fewer than the 5,500 military personnel previously authorized to assist CBP at the border. The current deployment of military personnel began in 2018, when there was a temporary spike in asylum-seeking families and unaccompanied children arriving at the border.

Legal

Courts Approve Administration’s Expansion of Expedited Removal

In a 7-2 ruling on June 25, the Supreme Court ruled that federal courts cannot review expedited removal decisions even for those individuals denied asylum. The case concerned an asylum seeker who was deemed not to have a “credible fear” of persecution by an asylum officer and was subsequently subject to expedited removal, a rapid deportation process typically completed within a few days. The dissenting opinion, written by Justice Sotomayor, contends that this decision denies asylum seekers “of any means to ensure the integrity of an expedited removal order” and allows immigration officials overly broad discretion over asylum claims.

On June 23, a federal appeals court in Washington also ruled on expedited removal, reversing a preliminary injunction which had blocked an administration policy expanding the number of migrants who can be put in expedited removal proceedings. Previous policy allowed the rapid deportation procedure to be initiated only for those who are apprehended within 100 miles of the border and who have arrived within the prior two weeks. The new policy allows officials to initiate expedited removal for undocumented immigrants present anywhere in the country who entered the U.S. within the past two years. The appellate court held that the Secretary of Homeland Security has “sole and unreviewable discretion” over the expansion of expedited removal and that, accordingly, the preliminary injunction was unwarranted. The lawsuit will continue at the district court level, however, because additional constitutional challenges to the policy still need to be resolved, including an allegation that these summary removals without a right to counsel violates due process.

Federal Court Delays Deportation of Unaccompanied Minor as Court Case Continues

On June 24, a federal district court judge in Washington delayed the removal of a sixteen-year-old unaccompanied minor who is at the heart of a suit challenging the Center for Disease Control and Prevention’s (CDC) March rule barring undocumented immigrants – including asylum seekers and unaccompanied children – from entering the U.S. The suit, filed by a number of civil rights organizations on June 9, challenges the administration’s authority to deport unaccompanied minors without any procedural protections, even those who express fear of persecution upon their return. The judge, in staying the minor’s removal, stated that he was unconvinced that the CDC had the authority to issue such a sweeping rule. He also noted that to the extent the CDC can exercise powers related to public health, they must not conflict with existing immigration laws protecting unaccompanied children and other border crossers.

Since the CDC rule was first issued in March, over 1,000 unaccompanied children have been summarily returned to their home countries upon arriving at the U.S.-Mexico border.

Appeals Court Rules Against Transfer of Military Funds to Border Wall

On June 26, the Ninth Circuit Court of Appeals affirmed a district court’s ruling against the Trump administration’s transfer of $2.5 billion in military pay and pension funds to border wall construction efforts. The lawsuit was brought by the Sierra Club and the Southern Border Communities Coalition (SBCC). The panel of judges held that the administration violated the Appropriations Clause of the Constitution because it “lacked independent constitutional authority to authorize the transfer of funds,” and that “the U.S. constitution exclusively grants the power of the purse to Congress.” The court further ruled that the Sierra Club and SBCC had standing because the federal government’s actions had caused “particularized and concrete injuries” to their members and organizations.

On June 23, President Trump toured the border in Arizona, touting the completion of 200 miles of the border wall. Of those 200 miles, approximately three were constructed where no previous barriers existed.

GOVERNMENT REPORTS

Congressional Research Service (CRS): H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020

This report gives an overview of recent actions on H-2A and H-2B guestworker visas and related policy issues. The Department of Homeland Security, Department of Labor, and Department of State have issued temporary final rules impacting H-2A and H-2B in response to the coronavirus pandemic. Legislative measures put forth over the years have included establishing new categories of temporary worker visas for agricultural and nonagricultural workers, as well as proposals to change the existing H-2A and H-2B visas by revising program requirements. Recent bills on the H-2B visa have focused largely on the annual cap, which currently sits at 66,000 visas a year. The report also looks into policy considerations for Congress, including additional wage requirements and other labor market tests.

Office of the Inspector General (OIG): Early Experiences with COVID-19 at ICE Detention Facilities, June 18, 2020

This report provides insight into how U.S. Immigration and Customs Enforcement (ICE) handled the early months of the coronavirus pandemic within their facilities. The number of detainees who have tested positive for COVID-19 rose from one detainee on March 25, 2020, to 1,312 detainees across 52 facilities by May 26, 2020. Facilities reported the steps taken to mitigate the spread of the virus, including cleaning and disinfecting of common areas, and quarantining new detainees, when possible, as a precautionary measure. However, facilities have faced challenges with trying to practice social distancing among detainees and with isolating or quarantining individuals who may be infected. Some personnel expressed concerns with the availability of protective equipment.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

President Trump’s Proclamation Suspending Immigration

This resource explains President Trump’s June 22 proclamation extending and expanding on immigration restrictions initially implemented in April. It describes which categories of immigrants are affected and which are exempt, discusses the additional measures included in the proclamation, and provides information about which groups of immigrants face the most immediate harm.

U.S. Supreme Court Allows DACA to Survive

This explainer describes the June 18 Supreme Court decision which allowed Deferred Action for Childhood Arrivals (DACA) to remain in place. It explains the Supreme Court’s reasoning, discusses what the decision means for Dreamers, and highlights the costs of continued congressional inaction on the issue.

Factsheet: Expedited Removal

This factsheet explains the expedited removal procedure, which allows CBP officials to rapidly deport undocumented noncitizens. The resource examines how many expedited removal proceedings are conducted by CBP, describes how the program is limited, and discusses the Trump administration’s attempts to expand the process.

* * *

*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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