Legislative Bulletin – Friday, May 8, 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 COVID-19 outbreak is ended.

Sponsored by Senator David Perdue (R-Georgia) (5 cosponsors – 3 Democrats, 2 Republicans)

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

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

S.3609

The bill would ensure that all communities have access to COVID-19 testing, treatment, public health information, and relief benefits, regardless of immigration status or limited English proficiency.

Sponsored by Senator Mazie Hirono (D-Hawaii) (14 cosponsors – 13 Democrats, 1 Independent, 0 Republicans)

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

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

S.3667

The bill would extend the application period and use of certain special immigrant visas.

Sponsored by Senator Robert Menendez (D-New Jersey) (0 cosponsors)

05/07/2020 Introduced in the Senate by Senator Menendez

05/07/2020 Referred to the Senate Committee on Foreign Relations

H.R. 6717

The Healthcare Workforce Protection Act

The bill would direct the Secretary of Homeland Security to extend the period of authorized stay for certain nonimmigrant temporary healthcare workers during the COVID-19 emergency period. The bill would allow doctors on H-1B specialty occupation visas to stay in the United States, even if they are laid off, at least until 60 days after the end of the coronavirus pandemic.

Sponsored by Representative Josh Harder (D-California) (2 cosponsors – 2 Democrats, 0 Republicans)

05/05/2020 Introduced in the House of Representatives by Representative Harder

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

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, May 11, 2020.

The U.S. House of Representatives will be in recess the week of Monday, May 11, 2020. House Majority Leader Steny Hoyer (D-Maryland) said a return would be contingent on when the next coronavirus stimulus bill is ready.

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

First Detainee Dies of Coronavirus in ICE Custody as the Disease Continues to Spread

On May 6, Carlos Escobar-Mejia became the first detainee to die from the novel coronavirus disease (COVID-19) in Immigration and ­­Customs Enforcement (ICE) custody. According to an ICE report on the matter, Escobar-Mejia was 57 years old, had been diagnosed with hypertension and had told authorities that he was diabetic. Originally from El Salvador, Escobar-Mejia had spent the majority of his life in the United States and entered immigration detention in January. He contracted the virus while being held in the Otay Mesa Detention Center in southern California. Otay Mesa has been the site of one of multiple COVID-19 outbreaks in ICE facilities, with over 200 confirmed positive cases.

COVID-19 continues to spread elsewhere in ICE detention. As of May 6, ICE said that in total, 674 detainees have tested positive for the virus, out of 1,346 total tests. As the rate of positive cases per test far exceeds the national average, it is likely the reported numbers underestimate the extent of the virus’ spread in detention facilities. Doctors, lawmakers, faith leaders, and immigration and civil rights advocates continue to call for more immigrant detainees to be released, particularly those such as Escobar-Mejia who have underlying conditions making them vulnerable to the virus.

While some immigrant and civil rights advocacy groups have persuaded judges to order the release of detainees in certain circumstances, a federal judge in Miami on May 5 allowed ICE to transfer detainees to other detention centers rather than release them. The judge had initially ordered ICE to “substantially cut populations” in detention facilities, writing that detainees’ “legitimate worry about contracting COVID-19…should not be minimized in any way.” The judge clarified that her order would “permit ICE to transfer detainees” from the Florida facilities at issue. Advocates warn that the transfer of detainees from outbreak zones to other facilities may result in further spread of the virus.

Approximately 30,000 immigrants remain in ICE detention.

Administration, Immigration Hawks Target Temporary Workers for Further Restrictions

On May 8, the Wall Street Journal reported that the White House is looking to expand and extend restrictions issued in President Trump’s April 22 proclamation suspending some permanent immigration to the U.S. The report suggests that the administration plans to extend the proclamation indefinitely, and that a separate executive order targeting certain categories of temporary work visas is being prepared. The initial proclamation, which excluded temporary work visas, required the Department of Homeland Security (DHS) to review all temporary nonimmigrant programs and provide recommendations on potential changes within 30 days. In a radio interview on April 27, Acting DHS Secretary Chad Wolf noted that, “we’ll have a series of recommendations [on temporary workers] that we’ll be teeing up.” Wolf specifically mentioned restrictions on Optional Practical Training (OPT), a program that allows graduating international students the opportunity to stay and work for one to three years in a position related to their course of study.

On May 7, Senators Tom Cotton (R-Arkansas), Ted Cruz (R-Texas), Chuck Grassley (R-Iowa), and Josh Hawley (R-Missouri) penned a letter to President Trump urging the suspension of “all nonimmigrant guest worker visas for the next thirty days.” The letter also suggests suspension of OPT and the EB-immigrant investor program. Cotton has also recently called for limitations on international students from China.

While the calls for further restrictions come in the context of the COVID-19 pandemic and the resulting economic downturn, many of the asks track closely with administration immigration priorities from before the onset of the pandemic. According to a May 3 report, the President’s chief adviser on immigration, Stephen Miller, has repeatedly tried to leverage a variety of diseases in order to further White House immigration priorities. Prior to the outbreak of COVID-19, in May 2019, Miller had unsuccessfully argued that public health powers could be used to justify tightening the borders when the flu hit some Border Patrol stations. For similar reasons, in 2018, he had searched unsuccessfully for evidence that the so-called migrant caravans were carrying illness and disease.

Bipartisan Bill Would Allow More Green Cards for Doctors, Nurses 

On May 5, Senator David Perdue (R-Georgia) introduced the Healthcare Workforce Resilience Act with a bipartisan group of cosponsors. The bill seeks to respond to the healthcare worker shortage in the midst of the COVID-19 pandemic by recapturing 40,000 unused visas and using them to provide green cards to immigrant doctors and nurses. “The growing shortage of doctors and nurses over the past decade has been exacerbated by the COVID-19 crisis,” Perdue said in a statement supporting the bill’s introduction. Senator Dick Durbin (D-Illinois), who joined Perdue in introducing the measure, noted that “immigrant nurses and doctors play a vital role in our healthcare system, and their contributions are now more crucial than ever.” Immigrants make up approximately 21% of all U.S. doctors and 16% of all U.S. registered nurses.

U.S. Continues to Test Guatemalan Deportees for COVID-19 Before Deportation Flights; Still Unable to Test Many Others

During the week of May 4, Guatemala received three deportation flights from the U.S. with a total of 175 deportees, after the U.S. agreed to begin testing all deportees to the country for COVID-19 before putting them on flights. Returning migrants will now have a medical certificate stating that they have tested negative for the virus. Deportations were previously suspended after over a hundred Guatemalan deportees had tested positive for COVID-19 upon arrival. Now, deportees will be tested 72 hours before the flight, will be isolated before boarding, and may be monitored for up to 96 hours after arrival.

On May 1, Senate Democrats sent a letter to the Trump Administration calling for COVID-19 testing for all deportees before their deportation flights. U.S. Immigration and Customs Enforcement (ICE) says it plans to test all migrants before they are deported, but doesn’t yet have the capability.

Guatemalan deportees have been experiencing discrimination upon return to the country based on the fear that they are bringing the disease back from the United States.

Border Wall Construction Plagued by Ongoing Problems

There have been several significant ongoing problems with the construction of a wall on the U.S.-Mexico border – a project that has continued even as other major construction projects have been paused during the COVID-19 pandemic.

On May 6, the U.S. division of the International Boundary and Water Commission (IBWC) has found a three-mile stretch of the border to be in violation of American treaty obligations with Mexico. The portion of the wall is 35 feet away from the Rio Grande riverbank, far closer than other sections, some of which are a mile or more away from the water. This poses an issue as construction in the floodplain could increase flooding and damage to nearby communities on either side of the river. In a letter released on May 6, IBWC requested that the contractor building that section of the wall install gates, realign the fence or consider other ways to mitigate potential flooding.

The administration has also continued pushing its controversial plan to have the wall painted black, an endeavor that will add at least $500 million to the cost of the project, according to new estimates from federal contracting officials. The Trump administration has justified this request as a strategy to enhance the wall’s intimidating appearance and to increase heat absorption, making the wall too hot to climb in the summer months. Military and border officials have discouraged the decision due to initial cost and additional costs of upkeep, and experts have argued that black paint will not significantly increase surface heat.

Legal

Court Upholds Trump Immigration Ban

A federal judge in Oregon refused to suspend President Trump’s April 22 proclamation suspending some immigrants outside the U.S. from obtaining permanent residency status for 60 days. The ruling came from U.S. District Judge Michael Simon, who sided last fall with the same plaintiffs when they sued over a similar presidential proclamation.

The suspension, which President Trump touted as a response to the economic effects of the COVID-19 pandemic, includes pending employment-based green card petitioners, family members of permanent residents, and parents, adult children and siblings of U.S. citizens.

The plaintiffs seeking the emergency motion stated that the order is an “unlawful attempt to upend the family-based immigration system that is fundamental to our society and shared prosperity.” They argued that the ban would likely hurt economic recovery, noting that increased immigration “actually boosts consumer demand, creates jobs, and provides an increasingly precious source of national economic strength.”

DOJ Hiring Changes May Prioritize Judges with a Record of Ruling Against Immigrants

According to a May 4 CQ Roll Call report, a newly released U.S. Department of Justice (DOJ) memorandum on the process suggests that DOJ may be favoring immigration judges who regularly rule against immigrants when selecting new judges for the appellate body that reviews immigration court decisions.

The hiring plan, which was released following a lawsuit filed by the American Immigration Lawyers Association (AILA), expanded the size of the Board of Immigration Appeals (BIA) and significantly expedited the process for hiring new judges to fill BIA vacancies. The BIA reviews decisions of other judges and sets precedent in immigration court cases.

Critics asserted that the new process was “opaque” and threatened to open the door to manipulating the hiring process, leading to “ideologically-based” hires. The plan underscores the increasing influence the Executive Office of Immigration Review (EOIR) an agency in the DOJ, holds over the immigration court system. Judge Ashley Tabaddor, head of the immigration judges’ union, noted of the plan that EOIR leadership is “trying to undo 30 years of movement towards an independent court.”

Several of the judges who have been elected to the board under the new procedure have high asylum denial rates, including some who have faced formal complaints concerning “bias and prejudice.”

Supreme Court Avoids Ruling on Constitutionality of Law Criminalizing “Encouraging or Inducing” Foreigners to Unlawfully Enter

In a unanimous decision on May 7, the Supreme Court decided against ruling on the constitutionality of a federal law criminalizing the encouragement of foreigners to stay in the U.S. illegally. Justice Ruth Bader-Ginsburg, writing for the unanimous court, ruled that the U.S. Court of Appeals for the Ninth Circuit improperly based its ruling on an argument not directly raised by the defendant and remanded the case back to the Ninth Circuit for a reappraisal on the merits of the arguments that were put forth.

The case concerned an immigrant consultant convicted of “encouraging or inducing” a foreigner to illegally enter and stay in the U.S. The unanimous Court held that in unilaterally raising the issue of whether the law was overbroad in violation of the First Amendment and then inviting outside parties to submit “friend of the court” briefings on the issue, the Ninth Circuit erred. The Supreme Court determined that the Ninth Circuit departed from the principle of party presentation, inherent in the nation’s adversarial justice system, that requires that parties to an actual case or controversy raise and litigate claims decided by the federal courts.

GOVERNMENT REPORTS

There were no immigration-related government reports published the week of Monday, May 4, 2020.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Bill Analysis: The Healthcare Workforce Resilience Act

This resource analyzes and provides context for the Healthcare Workforce Resilience Act, a bipartisan bill that would respond to the healthcare worker shortage by expediting green card processing for 40,000 immigrant doctors and nurses and their families.

Summary of 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.

Fact Sheet: International Students

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.

* * *

*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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