Legislative Bulletin – Friday, October 9, 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

H.R. 8477

The American Jobs First Act

This bill would eliminate the Diversity Immigrant Visa Program, which is designed to allow additional immigration opportunities to people from countries with relatively low rates of immigration to the U.S. It would also suspend Optional Practical Training (OPT), which allows international students to stay in the U.S. and work for one to three years after graduation. The bill would also introduce restrictions on the temporary H-1B high-skilled “specialty occupation” visa.

Sponsored by Representative Mo Brooks (R-Alabama) (3 cosponsors – 3 Republicans, 0 Democrats)

10/01/2020 Introduced in the House of Representatives by Representative Brooks

10/01/2020 Referred to the Committees on Education and Labor and on the Judiciary.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House will not be in session the week of Monday, October 12, 2020.

UPCOMING HEARINGS AND MARKUPS

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

THEMES IN WASHINGTON THIS WEEK

Federal

Administration Issues Broad Restrictions on High-Skilled Immigrants

On October 6, the Trump administration announced two new interim final rules restricting the H-1B nonimmigrant visa program for high-skilled “specialty occupations.” One of the rules, which was issued by the Department of Labor (DOL) and went into effect on October 8, would significantly raise minimum wage requirements for H-1B workers. The rule would apply to both new H-1B applicants and workers already on H-1Bs seeking to renew their status, and could raise required wages by as much as 71% for employers in certain industries.

The second rule, which was issued by the Department of Homeland Security (DHS) and is not set to go into effect until December 7, would restrict which jobs qualify as “specialty occupations.” H-1B visas are currently only available to applicants who have a job offer in an occupation that requires a bachelor’s degree or requires application of a specialized body of knowledge. The DHS rule limits the availability of H-1B visas only to applicants who have a job offer in an occupation which requires a bachelor’s degree in the “specific specialty” of that position. The rule would also limit and place additional scrutiny on H-1B applicants who are hired by one company but are contracted out to a second employer.

The DHS rule comes after federal judges in three separate cases in March 2020 ruled that the administration was wrong to deny H-1B visa petitions by applying an overly restrictive definition of “specialty occupation.” H-1B denial rates have more than quintupled in the past five years, rising from 6% in 2015 to 32% in 2019.

Both rules are likely to be the subject of legal challenges, as they were implemented as interim final rules without a period for public comment prior to enactment, a move which is only allowed in exceptional cases under the Administrative Procedure Act.

The two rules were met with criticism from business organizations and immigration advocates. A representative for the U.S. Chamber of Commerce said that “both of these rules have the potential to inflict serious harm upon many American companies.” The DOL rule has also been criticized for erroneously understating the extent it would increase required wages. According to the senior official performing the duties of the deputy secretary of DHS, Ken Cuccinelli, the new rules will result in the rejections of about one-third of all H-1B applications.

Details Emerge on Role of Top Administration Officials in Separating Migrant Families

According to an October 6 report, DHS’s Office of the Inspector General (OIG) concluded that top officials in the Trump administration were aware that its 2018 zero-tolerance policy to prosecute all undocumented immigrants would result in family separation. Following an investigation, OIG described then-attorney general Jeff Sessions and then-deputy attorney general Rod Rosenstein as being fully aware of the consequences of the zero-tolerance policy before it was implemented. Sessions reportedly pressed for the separation of migrant families with the understanding that doing so would deter future migration, reportedly telling U.S. attorneys, “We need to take away the children.”

The policy, which was met with widespread criticism from Members of Congress, faith groups, and the general public, resulted in the separation of more than 3,000 children from their parents in 2018. In many cases, DHS later struggled to reunite these families, lacking the ability to track which families were separated and where children were placed.

The OIG draft report of its findings contradicts statements by leading administration officials. Sessions said on June 21, 2018 that he “never really intended” to separate children. Former DHS Secretary Kirstjen Nielsen has said, “there was no policy to separate families.”

The OIG draft report also revealed other troubling consequences of the zero-tolerance policy. Border Patrol officers allegedly missed serious felony cases because the policy directed their attention toward misdemeanor illegal entry cases and breastfeeding mothers were separated from infants. According to the draft report, senior Justice Department officials viewed the welfare of the children as the responsibility of other agencies.

The draft report relied on more than 45 interviews with government officials, as well as emails and other documents. Before being officially published, the draft reportedly has been sent to Justice Department leaders and those mentioned in the report to ensure the information is accurate. On October 9, Ranking Member of the Senate Judiciary Immigration Subcommittee Dick Durbin (D-Illinois) called for a hearing to further investigate the policy of family separation.

ICE Launches Immigration Enforcement Operations Targeting “Sanctuary” Jurisdictions

On October 7, Immigration and Customs Enforcement (ICE) announced that officers had launched “phase 1” of a series of interior enforcement operations targeting “sanctuary” jurisdictions, and that officers had made 128 arrests in three California cities between September 28 and October 2.

Later in the week, ICE launched an advertising campaign involving billboards on highways across Pennsylvania. The campaign, which ICE has said is designed to “educate the public about the dangers of non-cooperation policies,” depicts the faces of immigrant men who were all released after completing criminal sentences or posting bond.

The actions followed reports in late September that the Trump administration was preparing an October immigration enforcement crackdown targeting immigration violators in California, Philadelphia, and Denver, jurisdictions that have been deemed sanctuary jurisdictions by the administration. Sanctuary jurisdictions are not defined under federal statute, but the term generally refers to state and localities that limit state and local officials’ involvement in federal immigration enforcement functions. Advocates and local officials argue that requiring local law enforcement to play a role in all federal immigration enforcement activities undermines public safety and community trust.

Former Department of Homeland Security officials, local officials, and immigration advocates have questioned the timing of the pre-election billboard campaign and enforcement operations, expressing the belief that they may be politically motivated. Current ICE officials have acknowledged that the number of immigrants apprehended thus far in the enforcement campaign does not represent a significant increase in arrests.

The new enforcement operations come soon after the U.S. Court of Appeals for the D.C. Circuit lifted a stay halting the Trump administration’s expanded expedited removal regulations. With the stay lifted, ICE officials began implementing the new policy which had previously been blocked by a federal court. Under expedited removal, immigration officers are able to arrest and quickly deport undocumented immigrants in a single day without having them appear before an immigration judge. Under new Trump administration regulations, immigrants who are not able to prove that they have been continuously living in the United States for two years or more – as opposed to the previous standard of two weeks or more – are eligible for expedited removal.

Administration Pressured Health Officials into Rule Closing Border to Asylum Seekers

According to multiple reports on October 3, Vice President Mike Pence directed the Centers for Disease Control and Prevention (CDC) to issue an emergency rule to close the border to asylum seekers and others in early March when the COVID-19 pandemic was beginning to spread. The rule, issued under title 42 of the 1944 Public Health Service Act, gives DHS the authority to expel or deport any individual arriving at the border, regardless of whether they posed a particular risk for spreading the virus or were intending to seek asylum or another form of protection.

The October 3 reports stated that top medical officials at the CDC had objected to the implementing the rule and had noted it was not necessary to prevent the spread of the virus. The vice president and White House advisor Stephen Miller reportedly pressed for the rule despite these objections, and CDC director Robert Redfield ordered his agency to implement it after a phone call with Pence.

The CDC rule, which was extended indefinitely on May 19, has resulted in the rapid expulsion of over 150,000 people at the Southwest border, including over 8,800 unaccompanied children seeking protection. DHS has argued that title 42 supersedes statutory requirements relating to the treatment and due process rights of asylum seekers and migrant children.

DHS: More Women Were Referred for Hysterectomies at ICE Detention Facility Than Previously Known

According to testimony submitted by acting DHS secretary Chad Wolf on October 7, ICE referred five immigrant detainees for hysterectomies at the Irwin detention center in Georgia, three more than previously disclosed. The testimony came amid ongoing investigations into a September 14 whistleblower complaint alleging that numerous detainees at Irwin were subjected to medical negligence and neglect, including a high rate of unwanted invasive surgeries.

On September 22, the hospital where many female detainees were alleged to have been victims of malpractice said that its records show only two detainees had been referred for hysterectomies. Acting Secretary Wolf testified he was aware of five such instances, and that of those three women had received hysterectomies at the hospital. Both numbers are in tension with a September 29 New York Times report, which found instances of unwanted and unnecessary gynecological procedures to be more widespread. The report was based on interviews and case records of 16 women who had been detained at the Irwin facility, and found that the doctor responsible for administering gynecological care “consistently overstated” the need for surgical intervention.

OIG continues to investigate the allegations. While Irwin detention facility is no longer referring patients to doctor at the heart of the whistleblower complaint, an October 6 report stated that women detained at the facility continue to experience medical neglect and say that “little has changed.”

Administration Mulls Painting Border Barriers Black

According to an October 5 report, the administration is considering moving forward with a plan to paint up to 82 miles of recently-constructed border barriers black, an effort that could cost upwards of $80 million. According to a Customs and Border Protection (CBP) official, the barriers would be painted for aesthetic purposes and to ensure that they were clearly visible against the natural surroundings. CBP has reportedly already tested the black coating, which is estimated to cost approximately $1 million per mile, on sections of border wall. President Trump has previously stated his desire to paint the border wall black.

The report comes as the administration has ramped up construction on the U.S.-Mexico border in the past several months. The rate of construction of border barriers has doubled since the start of 2020, despite legal challenges related to private property rights and the legality of the funding being used.

Legal

Appeals Court Denies Administration Request to Continue Housing Unaccompanied Children in Private Hotels

On October 4, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s order requiring ICE to stop detaining migrant children in private hotels before secretively deporting them. The ruling denied the administration’s request for a stay of the lower court order and required ICE to instead transfer all children currently held in hotels to licensed Office of Refugee Resettlement (ORR) facilities.

Since March, the administration has used a CDC public health rule to summarily deport over 8,800 unaccompanied children arriving at the border without first screening them for human trafficking or transporting them to ORR facilities, where they can be cared for by trained personnel. Instead, ICE used a private transportation contractor to detain some children in hotels before expelling them, often without informing family members or legal representatives about the children’s whereabouts.

The Ninth Circuit ruling referenced the 1997 Flores settlement agreement, which controls how the federal government must treat detained immigrant children. The Ninth Circuit affirmed the lower court’s ruling that the CDC rule did not supersede children’s Flores rights.

State and Local

Illinois Set to Become First State in Nation to Offer Health Coverage to Elderly Regardless of Immigration Status

In December 2020, Illinois is set to become the first state in the country to extend access to publicly funded health coverage to all seniors, regardless of immigration status, according to an October 5 report. In June, in the midst of the COVID-19 pandemic, Governor JB Pritzker (D-Illinois) signed Illinois’s Fiscal Year 2021 budget, which included a provision providing Medicaid-like health insurance coverage to low-income noncitizen immigrant seniors. Enrollment for the new program begins in December 2020, and as many as 1,000 Illinois residents may benefits from the provision.

Noncitizens are significantly more likely than citizens to lack health insurance, with noncitizen seniors particularly facing difficulty accessing health coverage, even as many continue to work in front-line occupations during the COVID-19 pandemic.

GOVERNMENT REPORTS

There were no immigration-related government reports published the week of Monday, October 5, 2020.

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.

Ali Noorani: This is Why Trump’s Forced Separation Policy Doesn’t Work

This op-ed from Ali Noorani, executive director of the National Immigration Forum, describes and criticizes the Trump administration’s policy of separating children at the border in the summer of 2018.

Statement for the Record: “The Expansion and Troubling Use of ICE Detention”

This resource describes the consequences of excessive overuse of immigration detention by ICE. It argues that alternatives to detention (ATDs) are cheap and effective and should be used more as detention rates fall.

* * *

*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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