Legislative Bulletin – Friday, May 29, 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.3837

The COVID-19 Vaccine Protection Act

The bill would prevent any additional student visa issuances to Chinese nationals unless and until the Department of Homeland Security (DHS), the Department of State, and the FBI evaluate and screen all Chinese student visa holders currently taking part in activities related to COVID-19 vaccine research. The bill would also require increased vetting and monitoring of all Chinese international student visa holders.

Sponsored by Senator Rick Scott (R-Florida) (6 cosponsors – 6 Republicans, 0 Democrats)

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

05/21/2020 Referred to the Senate Committee on the Judiciary

H.R. 6993

The H-1B and L-1 Visa Reform Act

The bill would raise required wages for H-1B specialty occupation visas and L-1 intracompany transferee visas. The bill also adds additional labor market tests of H-1B and L-1 visas and allows the U.S. Department of Labor to investigate fraud and abuse in the visa programs. The bill is a companion bill to S. 3770.

Sponsored by Representative Bill Pascrell (D-New Jersey) (4 cosponsors – 2 Republicans, 2 Democrats)

05/22/2020 Introduced in the House by Representative Pascrell

05/22/2020 Referred to the House Committees on Education and Labor and on the Judiciary.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, June 1, 2020.

The U.S. House of Representatives will be in session from Monday, June 1, 2020 to Thursday, June 4, 2020.

UPCOMING HEARINGS AND MARKUPS

Examining Best Practices for Incarceration and Detention During COVID-19

Date: Tuesday, June 2, 2020 at 10:00 a.m. (Senate Judiciary Committee)

Location: Dirksen Senate Office Building 106

Witnesses: TBA

THEMES IN WASHINGTON THIS WEEK

Federal

Trump Administration Expected to Restrict Temporary Worker Programs, Targeting Foreign Graduates and Trainees

The Trump administration is expected to announce additional restrictions to the legal immigration system, according to multiple reports. The administration is reportedly considering restrictions on the J-1 exchange visitors program 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. In addition to these restrictions, the administration has also reportedly weighed a broader suspension of all guest worker visa programs other than those used by seasonal farmworkers.

The plans come as part of an expansion and potential extension to President Trump’s April 22 proclamation suspending some permanent immigration to the U.S. The proclamation had previously excluded temporary work visas, but it did require the Department of Homeland Security (DHS) to review all temporary nonimmigrant programs and provide recommendations on potential changes by May 22.

With the May 22 deadline having passed and continued reporting that the administration is planning further restrictions, lawmakers and employers have come forward highlighting the economic benefits of the programs and urging President Trump to reconsider halting them. On May 27, a group of Republican Senators led by Senators Lindsey Graham (R-South Carolina) and John Cornyn (R-Texas) sent a letter to the administration warning against new restrictions on seasonal guestworker programs. In the letter, the Senators urged the President to “consider the important role non-immigrant temporary visa programs will play in aiding post-pandemic recovery in America.” Previously, on May 21, a group of over 300 businesses wrote another letter urging the administration to avoid placing restrictions on high-skilled temporary worker programs such as OPT and the H-1B and L-1 visa categories.

While the Trump administration has signaled coming restrictions on international students and the OPT program, on May 14, the Canadian government announced a number of accommodations for international students, including waiving certain eligibility requirements for work after graduation.

Court Filings Indicate ICE Asked Parents About Family Separation

U.S. Immigration and Customs Enforcement (ICE) acknowledged in recent court filings that it asked parents whether they wished to be separated from their children, among other questions. The revelation followed reports that ICE had begun rolling out a long-considered policy which consists of offering parents in family detention a “binary choice” between indefinite detention and separation from their children. ICE has continued to assert that it has not formally implemented “binary choice” at the border. However, in the process of conducting parole determinations for all children in family detention, ICE reportedly listed “Parent Does Not Wish to Separate” as a reason for why many children had not been released to relatives or other sponsors.

The parole determinations followed the issuance of an April court ruling by U.S. District Judge Dolly Gee, related to the 1997 Flores settlement agreement that governs the treatment of children in immigration detention. Judge Gee’s ruling ordered ICE to “make every effort to promptly and safely release” children in its custody.

On May 22, Judge Gee issued a subsequent order requiring that ICE provide a better explanation for why it had not simply released the parents and children together while their immigration court cases continue, as was common practice in previous administrations. The judge wrote that in its efforts to comply with the Flores settlement while refusing to release parents, ICE had “caused confusion and unnecessary emotional upheaval,” and noted that the agency “continues to show lack of compliance” with her previous ruling.

On May 21, a group of Democratic members of the House Judiciary Committee sent a letter to the Department of Homeland Security (DHS) requesting additional information about ICE policy towards detained children and families and expressing concern over the recent reports.

The parole determinations occurred with the COVID-19 pandemic as a backdrop. ICE data indicates that the coronavirus continues to spread in detention facilities. As of May 28, 1,392 detainees have tested positive out of 2,670 total tests. On May 24, a 34-year-old man became the second immigrant detainee to die after testing positive for COVID-19 while in ICE custody. On May 29, a group of 17 Senate Democrats sent a letter to DHS requesting an end to transfers of detainees during the pandemic and urging the implementation of additional testing.

USCIS Plans to Furlough Staff Unless Congress Provides Funding 

U.S. Citizenship and Immigration Services (USCIS) plans to furlough the majority of its workforce this summer if Congress does not provide additional funding for the agency, according to a letter the agency sent to employees on May 26. The furloughs could reportedly affect as many as 11,000 of the 19,000 total USCIS employees, and barring congressional funds they are set to go into effect on approximately July 20.

USCIS is seeking a “one-time emergency request” of $1.2 billion from Congress to avoid the furloughs and continue carrying out its duties, which include processing applications for citizenship, permanent residency and nearly all immigrant and nonimmigrant visas, along with petitions for refugee and asylum status. 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. USCIS is primarily fee-funded, and the agency has overseen significant increases in backlogs and application denials over the last few years.

The planned furloughs come even as USCIS is preparing to reopen some of its offices on June 4. USCIS has also announced plans to resume premium processing for certain visa petitions, including I-140 immigrant worker petitions beginning June 1 and H-1B visa petitions beginning June 8.

Some Naturalization Ceremonies Expected to Resume as Backlog Continues to Grow

On May 27, USCIS said that when the agency begins reopening June 4, previously postponed naturalization ceremonies will be rescheduled “on a case-by-case basis.” USCIS has neither committed to resuming a full slate of ceremonies nor released a comprehensive plan to reschedule the naturalizations that have been postponed. USCIS deputy director Joseph Edlow said that his staff will start conducting smaller-sized ceremonies that meet social distancing requirements, but capacity will remain limited.

In March, USCIS postponed nearly all naturalization ceremonies in response to the coronavirus pandemic, and that order has been extended through June 3. The postponement has left an estimated naturalization backlog of nearly 700,000 people.

The U.S. House has proposed mandating that USCIS conduct naturalization ceremonies remotely as part of the HEROES Act, its latest coronavirus relief proposal. Additionally, Senators Marco Rubio (R-Florida) and Martin Heinrich (D-New Mexico) sent a letter last week to Ken Cuccinelli, USCIS’s acting director, asking him to “take all necessary measures” to safely resume naturalization ceremonies, “including remotely administering oaths of allegiance and expanding small in-person ceremonies, in accordance with preventive measures recommended by the Centers for Disease Control and Prevention (CDC) and local public health authorities.”

Trump Expands Travel Ban to Brazil 

In a May 24 proclamation, the Trump administration instituted a new travel ban on foreigners who were present in Brazil in the 14 days prior to their attempted entry into the U.S. The ban excludes U.S. citizens and green card holders and their families. The restrictions would also not affect certain other immigrants determined to be in the national or public interest. The new travel restrictions went into effect on May 26th, two days earlier than they were previously set to begin. The proclamation stated that the Centers for Disease Control and Prevention (CDC) “has determined that the Federative Republic of Brazil is experiencing widespread, ongoing, person-to-person transmission” of COVID-19, justifying the ban.

As of May 29, Brazil has seen the second-most total positive coronavirus cases in the world. Over 435,000 people have tested positive in the country, trailing only the U.S. at 1.72 million.

Legal

Internal Memo Reveals Justice Department Offered Buy Outs to Board of Immigration Appeals Members

According to a May 27 CQ Roll Call report, an internal Justice Department (DOJ) memo revealed a Trump administration effort to create new vacancies on the panel that hears immigration appeals and sets precedents in immigration court cases. According to the memo, James McHenry, the director of the Executive Office of Immigration Review (EOIR) offered buy outs to induce veteran members of the Board of Immigration Appeals (BIA) to resign or retire.

EOIR, which is within DOJ, offered financial incentives to nine board members who were all appointed under previous administrations to encourage them to resign to create new vacancies. Previously, in August 2019, the Trump administration appointed six immigration judges with high rates of denying asylum claims to the BIA. The six new judges, who did not require Senate approval, filled four new seats created by the Trump administration and two existing vacancies. Buy out offers were not extended to board members appointed by the Trump administration.

The Trump administration presumably would appoint new board members to fill any newly-created vacancies on the 21-member board. Critics asserted that offering buy outs to career board members represented an effort to stack the board with members who better align with the administration’s restrictionist policy approach on immigration. The president of the American Immigration Lawyers Association said the memo is a sign that the administration “is seeking to make room for more handpicked judges with this buyout,” and that EOIR actions “underscore the real need to create an independent immigration court.”

None of the nine appellate judges offered the financial incentives agreed to resign or retire, according to the report. The revelation comes just weeks after the publication of another internal memo revealed that EOIR was favoring immigration judges who regularly rule against immigrants when selecting new judges for the BIA.

State and Local

Accelerated South Texas Border Wall Construction Results in Mixed Local Reactions

According to a report on May 27, the Trump administration’s efforts to build a wall on the U.S-Mexico border are accelerating in Texas despite the COVID-19 public health emergency. Since March, the government has filed twenty-four lawsuits against South Texas landowners seeking to use their land for the wall through eminent domain, which is more lawsuits than were filed in the previous eight months combined. Only half of the 250 affected property owners in Laredo, Texas — who own property along a 69 mile stretch of the border — have thus far given the government permission to survey their land for construction. Overall, Customs and Border Protection (CBP) projects the administration has acquired just 10 of the 213 miles of private property required to build a wall through the Laredo and Rio Grande Valley sectors in Texas.

Since 2017, Customs and Border Protection (CBP) has completed 194 miles of border wall construction along the U.S.-Mexico border. Of these 194 miles, sixteen miles of the wall were built on portions where fencing didn’t previously exist and only three miles were built where no barriers at all existed beforehand. Accordingly, much of the completed construction has involved replacing existing structures with a new wall. There have been reports of the new wall already being breached by smugglers.

GOVERNMENT REPORTS

Congressional Research Service: Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, May 19, 2020

The report provides an overview of the laws that govern the admission and exclusion of foreign-born nationals at the border, including procedures for asylum seekers and the circumstances in which arriving border-crossers may be detained. It addresses special rules regarding the treatment of unaccompanied alien children (UACs), recent policy changes affecting the processing of immigrants at the border, and legislative proposals that could change the protections offered to immigrants arriving at ports of entry. The report also explains how responses from both the U.S. and other nations to the COVID-19 pandemic have reduced the number of apprehensions at the border and have restricted migrants’ ability to reach the U.S.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Faith, Law Enforcement Leaders Decry Trump’s Immigration Policies Amid Covid-19

This press release details a May 28 press call convened by the National Immigration Forum to respond to Trump administration immigration policies amid the COVID-19 pandemic. The call brought together leading faith, law enforcement and policy voices who called for the release of non-violent detainees in immigration detention and decried the administration’s reported implementation of a “binary choice” policy for detained families. The press release includes a link to a recording of the call.

International Student Factsheet

This fact sheet provides demographic details on international students and describes the opportunities and challenges they face while looking for work after graduation. The resource also notes the economic contribution of international students, and discusses how U.S. policy towards international graduates compares to other countries with competitive higher educational institutions.

Unclog the Naturalization Backlog

This blog post describes the reasons behind the growing naturalization backlog. The post lists steps the administration and Congress can take to address delays in the system and provides information on the economic and civic benefits of naturalization.

* * *

*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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