Legislative Bulletin – Friday, May 22, 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.3796

The No Bailouts for Illegal Aliens Act

The bill would withhold any funding authorized under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to any state or locality that provides economic stimulus payments to undocumented immigrants. The bill would require states and localities to certify they were not providing support to undocumented persons under such a program before receiving future funding authorized under the CARES Act, a $2.2 trillion COVID-19 response package.

Sponsored by Senator Tom Cotton (R-Arkansas) (0 cosponsors)

05/21/2020 Introduced in the Senate by Senator Cotton

05/21/2020 Referred to the Committee on Appropriations

S. 3770

The bill would reform and reduce fraud and abuse in certain visa programs for immigrants working temporarily in the United States.

Sponsored by Senator Chuck Grassley (R-Iowa) (4 cosponsors – 3 Democrats, 1 Independent, 0 Republicans)

05/19/2020 Introduced in the Senate by Senator Grassley

05/19/2020 Referred to the Senate Committee on the Judiciary

H.R. 6905

The bill would direct the Secretary of Homeland Security to establish a program for granting lawful permanent resident status to immigrant health care professionals providing medical services during the COVID-19 pandemic.

Sponsored by Representative Sheila Jackson Lee (D-Texas) (0 cosponsors)

05/15/2020 Introduced in the House by Representative Jackson Lee

05/15/2020 Referred to the House Committees on the Ways and Means, Energy and Commerce and the Judiciary

H.R. 6800

The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act

The bill provides approximately $3 trillion for additional economic and medical assistance to American families and businesses in response to the continued effects of the COVID-19 pandemic. Concerning immigrants, the bill ensures access to COVID-19 testing and treatment for undocumented individuals, extends direct cash payments to taxpaying immigrants with Individual Taxpayer Identification Numbers (ITINs), and requires Immigration and Customs Enforcement to consider the release of the immigrant detainees most vulnerable to the spread of the virus. It would also expedite the processing of immigrant and nonimmigrant healthcare workers and make it easier for hospitals in COVID-19 hotspots to hire physicians on temporary visas.

Sponsored by Representative Nita Lowey (D-New York) (11 cosponsors – 11 Democrats, 0 Republicans)

05/12/2020 Introduced in the House by Representative Lowey

05/12/2020 Referred to the House Committees on Appropriations, on the Budget, and on Ways and Means

05/15/2020 Passed the House by a vote of 208 t0 199

LEGISLATIVE FLOOR CALENDAR

Both the U.S. Senate and the U.S. House of Representatives will be in recess the week of Monday, May 25, 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

ICE Reportedly Offers Migrant Families Choice Between Family Separation and Indefinite Detention

According to multiple reports, beginning on or around May 13 or May 14, Immigration and Customs Enforcement (ICE) began giving families in its custody a “binary choice” between indefinite detention and family separation. According to multiple legal advocacy organizations, migrant families in family detention facilities were offered a choice between accepting remaining together in detention as a family unit indefinitely or agreeing to have their children separated so they could be released from detention. ICE told the families, according to one attorney, that “if they wanted their children to leave detention, they had to sign a paper that would separate the parents from the child.” In a statement on May 17, an ICE spokesperson denied “institut[ing] binary choice.”

Under the 1997 Flores settlement agreement, the government must refrain from detaining migrant children for longer than 2o days. In the past, this requirement has resulted in the release of many migrant families into alternatives to detention (ATDs) while they undergo immigration court proceedings. But under the binary choice policy, parents remain detained and are given the choice of either separation from their children or waiving their children’s right to be released within 20 days.

Implementation of the binary choice policy, which has been considered by the administration since at least 2018, reportedly comes as a response to a April 24 court order by U.S. District Judge Dolly Gee. Judge Gee, who oversees the Flores Settlement Agreement, required ICE to “promptly and safely release” migrant children in its custody due to safety concerns associated with the COVID-19 pandemic. Judge Gee’s order also required ICE to file a report with the court on the status of the releases on May 15, 2020, suggesting that the binary choice policy was implemented shortly before the filing deadline.

The new policy comes as the COVID-19 pandemic continues to spread in ICE detention facilities. On May 19, ICE reported that more than 1,000 detained migrants – about half of those tested – have now tested positive for the virus. On the same day, the inspector general for the Department of Homeland Security told Congress that he would “begin a review of ICE’s efforts to prevent and mitigate the spread of COVID-19 in its facilities.”

Trump Administration is Rushing Deportation of Migrant Children During Coronavirus 

According to a May 18 report in ProPublica, the Trump administration has been rapidly deporting unaccompanied migrant children (UACs) without notifying their legal counsel or family members. Legal representatives of the children have said that the Department of Homeland Security (DHS) has attempted to deport at least 15 minors on an expedited basis and has successfully deported at least six without warning under the new policy. In the middle of the night, the UACs were suddenly removed from Office of Refugee Resettlement (ORR) shelters and put on a plane back to their countries of origin. A spokesperson for U.S. Immigration and Customs Enforcement (ICE) has stated that if a minor’s family is denied asylum under the Migrant Protection Protocols (MPP), they are subject to immediate deportation if they make another attempt to cross the border.

Previously, UACs were afforded protections under the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), including an opportunity to claim asylum and be moved into ORR custody prior to placement with a guardian. Several attorneys have filed lawsuits against the new policy, arguing that it violates the TVPRA and the 1997 Flores settlement agreement, both designed to ensure the safety and care of migrant children. In many cases, the children were returned to countries where they had experienced violence, persecution or sexual assault.

Since March, more than 900 UACs have been deported before they had the opportunity to apply for asylum in the U.S. or be placed with a guardian at home. While the administration has justified the policies as a response to the COVID-19 pandemic, a May 20 NBC News report suggested that the administration has been formulating plans to expedite child deportations since 2017.

Administration Plans Restrictions on Temporary Immigrants, Targets H-1B Visas

The Trump administration continues to plan to further restrictions on legal immigration, according to a report on May 21. After implementing a proclamation suspending some permanent immigration on April 22, the administration now appears set to target temporary immigrant categories, including a plan to dramatically limit the number of high skilled H-1B specialty occupation visas. The plan under discussion would prevent the majority of all H-1B recipients from entering the country, exempting only those at the top of the wage scale.

The administration reportedly will justify the additional restrictions on a faltering economy and spiking unemployment rates during the COVID-19 pandemic, although many industries reliant on H-1B visas have not carried out mass layoffs in response to the pandemic. For example, employment in computer occupations remains robust, with the unemployment rate remaining at 2.8% in April 2020, even as unemployment spiked in other sectors. The planned H-1B restrictions also come as a number of H-1B recipient physicians continue to work in hospitals on the front lines of the COVID-19 response.

In addition to H-1B visas, the administration is reportedly also considering cuts to the H-2B guest worker visas for nonagricultural seasonal work and the Optional Practical Training (OPT) program, which allows international students to stay in the U.S. and work in a field related to their degrees for one to three years after graduating. On May 20, a group of Republican lawmakers sent a letter to President Trump calling for a year-long suspension to all guest worker programs.

CDC Indefinitely Extends Order Closing Border to Migrants 

The U.S. Centers for Disease Control and Prevention (CDC) announced on May 19 that it is indefinitely extending an order which authorizes Customs and Border Protection (CBP) to immediately remove all unauthorized migrants at the border, including asylum seekers. The CDC justified the order, originally implemented for a 30-day period in late March, as necessary to prevent the further spread of COVID-19 and to protect the American people.

A group of public health experts from around the country wrote a letter to the Department of Health and Human Services (HHS) and the CDC criticizing the indefinite extension of the policy. The letter noted the limited public health benefit of immediately removing migrants while simultaneously continuing to allow permanent residents, citizens and visa holders to move across the border.

The CDC border closure has effectively eliminated protections for both adult and child asylum seekers at the border. Over 21,000 migrants have been immediately expelled under the order, with just 59 referred for further screening to determine if they need additional protection. Of these 59 referrals, all of whom requested protection under the Convention Against Torture (CAT), only two have been allowed to remain in the United States.

The indefinite extension of the rule is effective until the CDC determines that further introduction of COVID-19 into the U.S. is no longer “a serious danger to public health.” The CDC will conduct a recurring 30-day review of the order assessing whether the policy is still necessary, although the agency already noted that the public health risks justifying the extension are “unlikely to abate in the coming months.”

USCIS Seeks Additional Funding from Congress

On May 15, USCIS announced that it will exhaust its funding by the summer. Joseph Edlow, the acting head of USCIS, said that “without congressional intervention, we risk not being able to make payroll and will have to take drastic actions to keep the agency afloat.” The agency is seeking a “one-time emergency request” of $1.2 billion from Congress to ensure that it can continue to carry out its mission and administer the American immigration system. The funding proposal would require USCIS to repay the money to the U.S. Treasury. As part of its repayment plan, USCIS is asking Congress to approve a 10% surcharge to all application fees it adjudicates.

USCIS says the financial strain is due to a drastic decline in green card and other visa applications since the COVID-19 pandemic began. Critics, including some anonymous USCIS employees, have argued that the pandemic only exacerbated problems that already existed due to mismanagement of the agency. USCIS has overseen dramatic increases in backlogs and application denials over the last few years, exemplified by former acting USCIS head Ken Cuccinelli declaring, “we are not a benefit agency, we are a vetting agency.” USCIS operates almost entirely on the money it raises from fees.

In November 2019, USCIS had previously published a proposed fee rule that would increase the fee for numerous forms and applications, including increasing the cost of applying for U.S. citizenship by 83% and establishing a first-of-its-kind fee for asylum applications.

USCIS handles applications for citizenship, permanent residency and nearly all immigrant and nonimmigrant visas, along with petitions for refugee and asylum status.

Legal

In Wake of Court Decision, Administration Reaches Settlement on H-1B Visas That May Reduce Rising Denial Rates

On May 16, U.S. Citizenship and Immigration Services (USCIS) agreed to a settlement with a business group called ITServe Alliance that may have a significant impact on how the agency adjudicates high-skilled H-1B specialty occupation petitions. For years prior to the settlement, USCIS had denied H-1B petitions for employment which involved work at a customer’s location, arguing that this kind of work violated the H-1B requirement of an “employer-employee” relationship. During this time, companies that “provide information technology or other business services to American companies” faced the highest denial rates, in part due to USCIS using the restrictive definition of the employer-employee relationship requirement.

A District Court ruling on March 10 rejected this interpretation of the employer-employee relationship as “inconsistent” with regulation. In the subsequent settlement with ITServe Alliance, USCIS wrote that in the future it will “not . . . require an analysis of [the] employer-employee relationship.” The settlement might contribute to a reduction in H-1B denial rates, which have more than quintupled in the past five years, rising from 6% in 2015 to 32% in 2019.

State and Local

California Offers Relief Fund for Undocumented Immigrants 

On May 18, the first state funding effort to support undocumented immigrants began accepting applications. California’s $125 million fund, supported by state donations and private philanthropists, is expected to benefit about 150,000 undocumented adults in the state, each of whom will receive $500 with a cap of $1,000 per household. The fund comes in response to economic hardships from the COVID-19 pandemic, particularly for undocumented families who are ineligible for unemployment insurance or the $2.2 trillion CARES Act relief package passed in March. Governor Gavin Newsom (D-California) announced the fund in April, saying that undocumented workers make up 10% of the state’s workforce and had paid $2.5 billion in local and state taxes last year alone, yet they have thus far been cut out from government COVID-19 assistance.

On May 19, Senator Tom Cotton announced he would be introducing legislation in response to the fund. The No Bailouts for Illegal Aliens Act seeks to amend the CARES Act to prevent any future federal funding under the title from being sent to states or localities who are providing COVID-19-related support to undocumented immigrants.

GOVERNMENT REPORTS

There were no immigration-related government reports issued the week of Monday, May 18, 2020.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Amid Pandemic, Migrants Face Impossible Choices

This National Immigration Forum press release describes and responds to administration policies relating to immigration detention, family separation and the deportation of unaccompanied minors. It criticizes giving families a “binary choice” between family separation and indefinite detention, instead calling for implementing alternatives to detention (ATDs) and releasing non-violent immigrant detainees.

Summary of President Trump’s Proclamation Suspending Immigration

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

Trafficking Victims Protection Reauthorization Act Safeguards Children

This blog post explains the Trafficking Victims Protection Reauthorization Act (TVPRA) and how it protects unaccompanied alien children (UACs). It discusses proposals to change the TVPRA and how such modifications would hurt UACs.

* * *

*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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