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Legislative Bulletin — Friday, October 20, 2023

Welcome to the National Immigration Forum’s weekly bulletin! Every Friday, our policy team rounds up key developments around immigration policy in Washington and across the country. The bulletin includes items on the legislative, executive, and judicial branches, as well as some coverage at the state and local levels. 

Here’s a breakdown of the bulletin’s sections:

DEVELOPMENTS IN IMMIGRATION THIS WEEK

BILLS INTRODUCED AND CONSIDERED

LEGISLATIVE FLOOR CALENDAR

UPCOMING HEARINGS AND MARKUPS

GOVERNMENT REPORTS

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

DEVELOPMENTS IN IMMIGRATION THIS WEEK

Immigration policy is a dynamic field subject to constant change. Here, we summarize some of the most important recent developments in immigration policy on the federal, legal, state, and local levels. 

Content warning: This section sometimes includes events and information that can prove disturbing. 

Federal

U.S. Reaches Deal With Venezuela to Ease Sanctions Amid Resumed Deportations 

On October 18, the Biden administration deported around 130 women and men — shackled as they boarded a plane from Harlingen, Texas, destined for Caracas  — in the first chartered flight to Venezuela since the federal government announced it was resuming direct repatriations there earlier this month. 

The flight follows Homeland Security Secretary Alejandro Mayorkas’s decision weeks earlier to expand deportation protections and work authorization through Temporary Protected Status (TPS) for Venezuelans who arrived here before July 31, citing “Venezuela’s increased instability and lack of safety due to the enduring humanitarian, security, political, and environmental conditions.”

It also comes even as the U.S. takes sweeping steps to significantly ease sanctions, which have targeted Venezuela’s oil sector and crippled the country’s economy for many years, and which were trumped up after Venezuelan President Nicolás Maduro’s 2018 presidential victory that has been broadly deemed illegitimate.

On Tuesday, Venezuela’s autocratic regime reached an agreement with its political opposition, potentially allowing for a more democratic, internationally-monitored presidential election in 2024.

Secretary of State Antony Blinken called the new sanctions relief “consistent with our longstanding commitment… in response to concrete steps toward competitive elections and respect for human rights and fundamental freedoms,” although U.S. officials have warned they may reverse course if Maduro doesn’t hold up his end of the deal. 

Biden Administration Requests Supplemental Funding for Border Security, Announces New Initiative for Ecuadorian Families 

On October 20, the White House requested $106 billion in national security-focused supplemental funding for the current fiscal year, including $13.6 billion for measures to crack down on drug trafficking and migration across the U.S.-Mexico border. 

The package focuses in large part on shoring up resources and personnel, allowing for 1,300 more Border Patrol agents, 1,600 more asylum officers and support staff, and 375 more immigration judge teams, among other new hires. Funding would also go toward inspection machines for fentanyl detection, more detention beds, more removal flights, new housing for people placed in expedited removal, more Shelter and Services (SSP) program grants, and resources for repatriation flights by third countries.

The White House’s request follows months of enforcement-focused border restrictions, which initially coincided with a drop in migrant encounters over the early summer but have since done little to discourage people — many fleeing violence and instability — from trying to cross for safety and opportunity in the U.S. 

Nevertheless, the Department of Homeland Security (DHS) on Friday doubled down on the administration’s intent “to implement a migration strategy focused on enforcement, deterrence, and diplomacy.”

Last week, amid the large numbers of newcomers, the Office of Refugee Resettlement (ORR) re-opened an “influx care facility” for unaccompanied migrant children at a former work camp in Carrizo Springs, Texas — after the Department of Health and Human Services (HHS) had already reopened a similar facility in Pecos, Texas, last month. 

“While ORR’s priority is to place children into standard care provider facilities, access to Influx Care Facility (ICF) capacity remains necessary to ensure that ORR can promptly accept referrals when ORR’s other network facilities reach or approach capacity,” HHS shared in a statement to CBS News

Meanwhile, in an attempt to expand lawful pathways while discouraging irregular migration, the Biden administration announced a new invite-only family reunification parole process for Ecuadorians affected by the often long visa backlog. The program mirrors existing initiatives for families from Cuba, Haiti, Colombia, El Salvador, Guatemala, and Honduras. 

U.S. Hits H-2B Cap for First Part of FY 2024

United States Citizenship and Immigration Services (USCIS) has received enough H-2B visa petitions to reach its congressional cap for the first half of fiscal year 2024.

The H-2B visa allows temporary workers to come to the U.S. for a nonagricultural job in industries such as landscaping, forestry, food service, and construction. Congress has capped H-2B visas at 66,000 per fiscal year, including  33,000 for workers who begin employment in the first half of FY 2024 (Oct. 1 – Mar. 31).

October 11 was the final receipt date for new H-2B visa petitions requesting a start date in the first half of the fiscal year. USCIS will reject cap-subject H-2B visa petitions received after that date, if they ask for workers to start before April 1.

That said, USCIS will still accept applications for several categories of people who are exempt from the H-2B cap, including certain current H-2B workers. 

Biden Administration Reviews Rule for Stateside H-1B Visa Renewal, Aims to Prevent Visa Lottery Fraud

An October 18 Bloomberg Law report highlighted that the Biden administration is reviewing a rule to offer H-1B visa renewal options without having to leave the United States. The H-1B visa allows U.S. employers to hire foreign workers with specialized skills to work in the U.S. for a specific period of time.

The stateside visa renewals — which were discontinued in 2004 —  are expected to serve a twofold purpose: save applicants from having to leave the country, and reduce the workload of consular offices abroad.

Since March 2020, the Covid-19 pandemic has dramatically affected the State Department’s ability to process immigrant visa applications. According to recent reports, the U.S. consular backlog has over 386,787 immigrant visa applicants waiting for an interview at U.S. consulates — a 635% increase from the 2019 average of 60,866.

In addition, on October 18, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking to prevent fraud in the H-1B visa lottery. The rule would change the lottery method to select registrations based on unique beneficiary, regardless of how many registrations are submitted on their behalf.

Legal


Families Reach Settlement Deal After Separations Under Trump 

On October 16, more than five years after the federal government systematically separated children from their parents under the “Zero Tolerance” policy, the Biden administration reached a proposed settlement agreement to provide those families with assistance, reunification, and another chance at protection in the United States. 

If approved in federal court, the agreement could allow up to 5,000 children and parents affected by family separation under the Trump administration to receive short-term permission to live and work in the U.S., apply for asylum, and receive targeted aid such as housing assistance, medical and behavioral health services, and some legal help.  

The agreement also precludes most family separations for eight years, a forward-looking commitment meant to preempt a similar policy regardless of who’s in office. 

“The ACLU has settled hundreds of lawsuits in our 103-year history, but none more important than this one,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement. 

“To America’s enduring shame, we tore children from the arms of their families to enact a xenophobic agenda. This settlement closes the darkest chapter of the Trump administration, but as welcomed as it is, the damage inflicted on these families will forever be tragic and irreversible.”

Court Permits Turnbacks of Asylum Seekers Without Pre-Scheduled Appointments at Official Ports of Entry

On October 13, a federal district judge in California cited recent Supreme Court precedent as he ruled from the bench that his court did not have the authority to stop officials from turning away migrants at the U.S.-Mexico border who didn’t first make an appointment through the federal government’s CBP One app. 

These “turnbacks” — challenged by Al Otro Lado, Haitian Bridge Alliance, and individual plaintiffs — are only exacerbated by restrictions that presume migrants are ineligible for asylum in the U.S. unless they applied for and were denied protection in another country, followed one of the Biden administration’s parole processes, obtained an appointment through the CBP One app, or met a limited number of other narrow caveats. 

Migrant rights defenders argued the turnbacks contradict the Biden administration’s own guidance from November 2021, which they say made clear that asylum seekers could not be required to obtain an appointment before arriving at the border.  They also contended that the policy violates broader U.S. and international laws regarding the right to seek asylum. 

But Judge Andrew G. Schopler denied their request for a preliminary injunction, relying on the Supreme Court’s 2022 decision in Garland v. Aleman Gonzalez — which held in part that U.S. immigration law doesn’t allow classwide injunctions — to justify his decision. 

“If I were to grant an injunction that forced federal officials to permit asylum seekers to wait at a port of entry until CBP can process them, that itself I think would interfere with the government’s ability to carry out specific statutory provisions,” Schopler said. 

The decision comes at an especially dangerous time for asylum seekers waiting in Mexico, as reports indicate an increase in violence targeting migrants and people assisting them while they try to access CBP One appointments. Unable to risk their lives any longer, many are choosing to cross the U.S.-Mexico border unauthorized so they can finally feel safe. 

State and Local 

Texas Immigration Enforcement Bills Pass State Senate, Advance in House

Over the last week, state lawmakers in Texas have advanced a number of major immigration proposals focused on establishing new state crimes and de facto state-level expulsion authority.

Senate Bill 11, authored by state Sen. Brian Birdwell, would make improper entry from abroad a crime in Texas, creating new penalties beyond existing federal violations. Senate Bill 4, authored by state Sen. Pete Flores, would trump up penalties for human smugglers and operators of stash houses.

Both bills have passed the Texas Senate and are now before the state House.

Meanwhile, House Bill 4, authored by state Rep. David Spiller, would not only create an “illegal entry” offense, but would also allow peace officers to “remove” someone by transporting them to a port of entry and ordering them to cross into Mexico. The bill was reported favorably out of committee on Thursday.

Much of the immigration and border security legislation being proposed in the Texas legislature’s special session actively challenges long-standing precedent of immigration enforcement as a federal responsibility, potentially teeing up another bitter court battle between Texas and the Biden administration. 

Massachusetts Will No Longer Provide Right to Shelter for Certain Families 

On October 16, Massachusetts Gov. Maura Healey said that by the end of the month, her state would no longer be able to expand its emergency shelter capacity for families, after large numbers of migrants and asylum seekers have arrived there in recent months hoping for stable housing. 

Massachusetts has a unique law that provides a right to shelter for pregnant women and certain families, which has in part driven a recent increase in newcomers — many of them Haitian — to the state. But Healey said that starting on Nov. 1, Massachusetts wouldn’t be able to add any more shelter units, and families with the greatest needs would instead be given priority.

The announcement accompanies other, more proactive steps in response to recently arrived families, including access to job training and employment opportunities.

“We will continue to help families exit shelter and move into more permanent housing options, connect those who are eligible with work opportunities to support their families, and advocate for the federal government to step up and address this federal problem,” Healey said in a statement

BILLS INTRODUCED AND CONSIDERED

It can be challenging to keep up with the constant barrage of proposed legislation in Congress. So, every week, we round up new bills. This list includes federal legislative proposals that have recently been introduced and that are relevant to immigration policy. 

Please follow this link to find new relevant bills, as well as proposed legislation from past weeks. 

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session from Monday, October 23 through Friday, October 27, 2023.

The U.S. House of Representatives will be in session from Monday, October 23 through Thursday, October 26, 2023.

UPCOMING HEARINGS AND MARKUPS

Here, we round up congressional hearings and markups happening in the field or in Washington. 

House Natural Resources Markup

Date: Tuesday, October 24, 2023 at 10:15 a.m. EST (House Natural Resources Committee)

Location: 1324 Longworth House Office Building, Washington, D.C.

Related Items: H.R. 1792 (Rep. Radewagen), “South Pacific Tuna Treaty Act of 2023”; H.R. 2560 (Rep. Keating), “Sea Turtle Rescue Assistance Act of 2023”; H.R. 3415 (Rep. Hageman), “Pilot Butte Power Plant Conveyance Act”; H.R. 4587 (Rep. Rutherford), “Red Snapper Act”; H.R. 4770 (Rep. Sarbanes), “Chesapeake Bay Science, Education, and Ecosystem Enhancement Act of 2023”; • H.R. 5009 (Rep. Joyce of Ohio), “Wildlife Innovation and Longevity Driver reauthorization Act” or the “WILD Act”; H.R. 5283 (Rep. Malliotakis), “Protecting our Communities from Failure to Secure the Border Act of 2023”; and H.R. 5616 (Rep. Graves of Louisiana), “Bringing Reliable Investment into Domestic Gulf Energy Production Act of 2023” or the “BRIDGE Production Act of 2023.”

The Broken Path: How Transnational Criminal Organizations Profit from Human Trafficking at the Southwest Border

Date: Tuesday, October 24, 2023 at 2:00 p.m. EST (House Homeland Security)

Location: 310 Cannon House Office Building, Washington, D.C.

Witnesses: TBA

Ensuring the Safety and Well-Being of Unaccompanied Children, Part II

Date: Wednesday, October 25, 2023 at 10:00 a.m. EST (Senate Judiciary)

Location: Dirksen Senate Office Building, Room G50

Witnesses: TBA

GOVERNMENT REPORTS

Reports by bodies such as the U.S. Government Accountability Office, the Congressional Research Service, and the Department of Homeland Security’s Office of Inspector General provide invaluable information on immigration policy and practice. Here, we give brief summaries of new immigration-related reports, with links to the resources themselves in case you want to learn more. 

U.S. Government Accountability Office (GAO); Southwest Border: Cultural and Natural Resource Impacts from Barrier Construction; Published October 18, 2023

This statement for the record — based on a September 2023 report — explores how border barrier construction between 2017-2021 has affected natural and cultural resources in the U.S.

U.S. Government Accountability Office (GAO); Immigration Courts: Actions Needed to Address Workforce Planning and Other Management Challenges; Published October 18, 2023

This congressional testimony looks at progress as well as ongoing challenges at the Executive Office for Immigration Review (EOIR), including shortcomings with workforce planning, immigration judge performance appraisals, and a specific application within the courts’ electronic filing system. 

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

The Forum is constantly publishing new policy-focused resources that engage with some of the most topical issues around immigration today. Here are a few that are particularly relevant this week: 

American Dream Employment Act: Bill Summary

This bill summary explores the American Dream Employment Act of 2023, which would allow Deferred Action for Childhood Arrivals (DACA) recipients, Temporary Protected Status (TPS) holders, and Deferred Enforced Departure (DED) recipients to work in the U.S. Congress.

Explainer: What Are Safe Mobility Offices?

Read this explainer for information about what we know so far on how SMOs are being implemented in Guatemala, Costa Rica, and Colombia, and who may qualify to participate. 

The Reasons Behind the Increased Migration from Venezuela, Cuba, and Nicaragua

This paper explores the reasons behind the increased migration from Venezuela, Cuba, and Nicaragua. While irregular migration from these three countries ruled by autocratic governments is not new, the situation has worsened in recent years. Commonalities include domestic political crises, weakening economies, Covid-19, natural disasters, and strict U.S.-led economic sanctions. Facing precarious conditions and the threat of political persecution, a growing number of people from these nations have opted to seek safety in the United States.

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This Bulletin is not intended to be comprehensive. Please contact Alexandra Villarreal, Policy and Advocacy Associate at the National Immigration Forum, with comments and suggestions of additional items to be included. Alexandra can be reached at avillarreal@immigrationforum.org. Thank you.

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