Legislative Bulletin — Friday, September 17, 2021

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. 2753

America’s Cultivation of Hope and Inclusion for Long-Term Dependents Raised and Educated Natively (CHILDREN) Act

The bill would protect dependents of long-term nonimmigrant visa holders who risk deportation after turning 21 and aging out of dependency status. In addition to age-out protections, the bill would provide a pathway to permanent status for those who came here legally as dependent children, have lived in the U.S. for a minimum of 10 years, and who have graduated from an institution of higher education. This is a companion bill to H.R. 4331.

Sponsored by Senator Alex Padilla (D-California) (4 cosponsors— 2 Republicans, 2 Democrats)

09/15/2021 Introduced in the Senate by Senator Padilla

09/15/2021 Referred to the Senate Committee on the Judiciary

H.R. 5209

Counter-Kleptocracy Act

The bill would prohibit the issuance of any type of visas to foreign government officials who engage in extortion, corruption, or bribery.

Sponsored by Rep. Steve Cohen (D-Tennessee) (17 cosponsors— 10 Democrats, 7 Republicans)

09/10/2021 Introduced in the House by Representative Cohen

09/10/2021 Referred to the House Committees on the Judiciary and Foreign Affairs.

H.R. 5227

Lifting Immigrant Families Through Benefits Access Restoration Act of 2021

The bill would eliminate the current five-year waiting period and restore access to numerous federal financial and medical benefits for Green Card holders, DACA recipients, individuals granted Special Immigrant Juvenile Status (SIJS), and other lawfully present immigrants.

Sponsored by Rep. Pramila Jayapal (D-Washington) (50 cosponsors— 50 Democrats, 0 Republicans)

09/10/2021 Introduced in the House by Representative Jayapal

09/10/2021 Referred to the House Committees on Ways and Means, Agriculture, Education and Labor, Energy and Commerce, the Judiciary, and Financial Services.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of September 20, 2021.

UPCOMING HEARINGS AND MARKUPS

Meeting to receive a closed briefing on Department of Defense support of Afghan Nationals who have recently left Afghanistan

Date:  Tuesday, September 21, 2021, at 9:30 am E.T. (Senate Committee on Armed Services)

Location: G50 Dirksen Senate Office Building, Washington, D.C.

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Federal

House Judiciary Committee Advances Immigration Language for Reconciliation Bill

On September 13, the House Judiciary Committee marked up the legislative text for the $107.5 billion instruction included in the budget resolution to advance multiple immigration priorities. As approved, the bill would provide a pathway to citizenship for Dreamers, Temporary Protected Status (TPS) and Deferred Enforcement Departure (DED) holders, farmworkers, and other critical infrastructure workers. It would also recapture unused green cards for family and employment-based visas and diversity visas. All told, the proposed text would allow approximately 8 million people to qualify for permanent status. During the markup, Republicans introduced 28 separate amendments to the Committee print intending to alter or limit the scope of the included provisions, but they all failed to pass.

House Democrats are aiming to finish marking up the reconciliation legislation and pass the bill on the House Floor by September 27. That is the deadline that House Speaker Nancy Pelosi set for the House to turn to a vote on the $1.2 trillion bipartisan infrastructure bill that the Senate passed in August. The deadline came as a compromise with nine moderate Democrats, who argued that the House should have first considered the bipartisan infrastructure bill before dealing with the more partisan reconciliation effort. Once the House approves the spending bill, it will go back to the consideration of the Senate. However, while the Judiciary Committee markup went smoothly, other committees have been unable to agree on various provisions as the September 27 deadline looms.

As the legislation is moving through the House, Senate Democrats have begun attempts to demonstrate that all the immigration provisions are budget-related and germane to the reconciliation process. The determination falls on the Senate parliamentarian, who is the chamber’s nonpartisan rules referee. In that regard, following the September 10 meeting in which Democrats and Republicans presented their arguments for and against the inclusion of immigration provisions, the Senate parliamentarian requested Democrats provide additional information to determine whether the provisions are germane. On September 17, the White House published a blog post analyzing the economic benefits of extending permanent legal status to unauthorized immigrants. If the parliamentarian rules that the provisions are not germane, the reforms will be cut out from the reconciliation process that allows Senate Democrats to bypass a filibuster.

If the parliamentarian green lights the provisions, Senate Democrats are hoping to continue the reconciliation process and pass the omnibus package into law. However, prospects for broader Senate passage are becoming more complicated, as key moderate Senator Joe Manchin (D-West Virginia) last week came forward to say that he would not support the full $3.5 trillion spending package allocated by the budget resolution. According to an Axios report, Manchin is open to supporting at most $1.5 trillion of the spending bill. That scenario would require Democrats to make concessions on at least part of the ambitious spending package.

Resettlement of Afghan Evacuees in the U.S. Continues; Secretary Blinken Defends Biden Administration’s Afghanistan Evacuation

On September 14, Secretary of State Antony Blinken appeared before the Senate Foreign Relations Committee to examine the U.S. withdrawal from Afghanistan. Blinken defended the evacuation of U.S. citizens, Afghan allies, refugees, and others, noting that with a total of 124,000 evacuated it was one of the largest airlifts in history. He also said that the administration still does not have the exact breakdown of evacuees in terms of how many would qualify under Special Immigrant Visa (SIV) status, Priority 2 (P2) refugee status, or were otherwise at risk. Regardless of their eligibility, almost all evacuees are being initially brought to the U.S. under humanitarian parole.

On September 15, the Biden administration began notifying governors and state refugee coordinators across the country about where Afghan evacuees are slated to be resettled. To support the resettlement operation, the administration requested last week from Congress $6.4 billion in additional funding. Most of this funding would go to resettle 65,000 Afghans in the U.S. by the end of this month and 95,000 by September 2022. The supplemental funding request also included provisions allowing parolees access to federally funded refugee benefits and providing a pathway to permanent status. The appropriations ask will factor into what may be a contentious week on Capitol Hill as the House and Senate scramble to fund the government and raise the debt limit before funding deadlines at the end of September.

Currently, the vast majority of the evacuated Afghans remain on military bases either in the U.S. or overseas, awaiting additional medical and security screenings. Approximately 300 unaccompanied Afghan minors are among the evacuees.

Even though the resettlement of Afghan evacuees in the U.S. has received broad support that cuts across political divides, a September 15 report stated that a group of former Trump aides — including noted immigration hardliner Stephen Miller — is working to turn Republicans against efforts to welcome Afghan allies.

Apprehensions at the Southern Border Drop Slightly, Remain Near Record High

On September 15, U.S. Customs and Border Protection (CBP) released official data on the number of migrants the agency had apprehended or encountered in August. The data showed a marginal decline in overall monthly arrivals as the numbers dropped approximately 2% to 208,887 in August from 212,672 in July. The overall numbers continue to be inflated by a high number of repeat crossers, with recidivism rates reportedly at 25%. CBP reported that the total number of “unique” crossers encountered was 156,641. In August, CBP encountered 86,911 migrants in family units, more than any previous month this year (although still below the peak set in 2019). The number of arriving unaccompanied children remained relatively stable, dropping approximately 1% from July to August.

Approximately 44% of all arriving migrants — and 75% all single adults — were expelled immediately under a public health order called Title 42. The administration has been flying some individuals expelled under Title 42 to southern Mexico in order to discourage repeat crossing, and it has reimplemented “lateral flights” to fly migrants to different parts of the border where it is easier to conduct Title 42 expulsions.

The slight decline in overall apprehensions in August represents the first monthly decline since the start of the pandemic almost one and a half years ago. According to a September 13 report, early data on arrivals in September show arrival numbers are on pace for a more significant decline. The report stated that as of mid-September, average daily encounters were down 15% from the same period in August.

Despite this recent drop in overall arrivals, the administration has still struggled at times to process arriving migrants in an orderly fashion. According to a September 16 report, over 10,000 mostly Haitian migrants are waiting under an international bridge in Del Rio Texas to turn themselves in to CBP to enter migration processing or submit asylum pleas.

Biden Administration Reopens Central American Minors (CAM) Program to Reunite Families from Northern Triangle

On September 13, the Biden Administration announced that it would begin the second stage of its expanded Central American Minors (CAM) Program. The CAM program, created under President Obama in 2014, allowed parents with legal status in the U.S. to apply to have their children in El Salvador, Honduras, or Guatemala join them in the U.S. under either humanitarian parole or refugee status.

The CAM program was terminated by the Trump administration in 2018 but reinstituted by the Biden administration on March 10, 2021. Initially, the Biden administration was only using the program to process those who had pending cases before 2018, but the expanded eligibility announcement signals the administration’s intent to process new cases. As a result, tens of thousands of parents residing in the U.S. could benefit from the program’s full reinstatement. The program will now be extended to include legal guardians — in addition to parents — with pending asylum applications or U visa petitions filed before May 15, 2021.

Also, on September 13, the Biden administration’s Family Reunification Task Force launched a new program to find the parents who were separated from their children by the Trump administration. Many of the parents are presumed to be in remote Central American communities. The new program will help the parents return to the United States, where they will get at least three years of legal residency and other assistance. The task force has reunited about 50 families since starting its work in late February, but estimates suggest there are as many as 2,000 parents who were separated from their children and have not been located.

The U.S. Makes Coronavirus Vaccinations Mandatory for New Immigrants Applying for Green Card

On September 15, the Biden administration announced that beginning October 1, new immigrants seeking to become lawful permanent residents — or green card holders — will need to show proof of complete vaccination against Covid-19. The requirement is part of a general immigration medical examination to ensure individuals are free from any conditions that would render them inadmissible under health-related grounds. The Covid-19 vaccination joins other vaccinations required for those seeking permanent residency in the United States, including measles, tetanus and diphtheria, rubella, polio, and hepatitis A and B.

The requirement excludes children who are too young to receive the vaccine and individuals with medical conditions exempting them from receiving the vaccine. The vaccination requirement may also be waved for those with religious reasoning. USCIS officers will assess those waivers on an individual basis.

USCIS to Welcome More Than 21,000 New Americans for Citizenship Day

On September 17 — in commemoration of Citizenship Day and Constitution Day — U.S. Citizenship and Immigration Services (USCIS) announced its plans to celebrate the holiday by welcoming nearly 21,000 new citizens in 335 naturalization ceremonies across the country. “As we take time to reflect on what citizenship means to each of us,” USCIS Director Ur Jaddou said, “let us share in the commitment to invest fully in this country’s promise to be a place of hope and possibilities for all.” The citizenship ceremonies will take place between September 17 and 23.

Legal

Federal Judge Rules Against Use of Title 42 Expulsions for Families at the Border

On September 16, a federal judge ruled against the use of Title 42 expulsions for arriving migrant families at the border. Title 42 is a public health order based on a 1944 statute that both the Trump and Biden administrations have used during the COVID-19 pandemic to rapidly expel over a million arriving migrants without providing them the opportunity to seek asylum.  The judge ruled that the public health statute does not allow for expulsions and does not supersede the 1980 Refugee Act, which requires that all arriving migrants be provided with an opportunity to seek humanitarian protection.

While the judge argued that the use of Title 42 was broadly unlawful, the case only concerned migrant families. In August, 86,911 migrants in family units arrived at the Southwest border, the most since 2019. Throughout the past several months, over 80% of families have not been put into Title 42 and instead processed in under more normal immigration processes. Approximately 16,000 migrants in family units were returned under Title 42 in August.

The order to block the case was stayed for two weeks to give the Biden administration time to appeal. On September 17, the Biden administration appealed the ruling to the D.C. Circuit Court of Appeals.

Fifth Circuit Largely Stays Judge’s Order that Blocked Biden’s Immigration Enforcement Priorities

On September 15, the Fifth Circuit Court of Appeals stayed the preliminary injunction that blocked the enforcement and implementation of two Immigration and Customs Enforcement (ICE) memorandums. The two memos, known as the Pekoske Memo and the Johnson Memo, encourage ICE to prioritize enforcement efforts concerning unauthorized immigrants who are either recent border-crossers or who may pose national security and public safety threats. The memos also instruct ICE agents to refrain from detaining or deporting victims of serious crimes and pregnant or nursing women.

In the ruling, the court found that prosecutorial discretion is an inherent power of the Executive Branch, and compromising it could diminish the separation of powers. The ruling, however, did allow a narrow provision of the District Court’s order to remain in place. That portion of the order prevents the Attorney General from relying on the memos to release those who fall within mandatory detention provisions.

U.S. District Court Vacates Trump-Era H-1B Rule

On September 15, the U.S. District Court for the Northern District of California vacated a Trump-era rule that would have replaced the current H-1B lottery with a system prioritizing individuals with the highest offered salaries. The court argued that DHS’s rule was promulgated before the lawful appointment of Chad Wolf as Acting DHS Secretary.

The regulation, which had been scheduled to take effect on December 31, would have had significant effects on the allocation of H-1B visas for the Fiscal Year (FY) 2023 H-1B cap season.

GOVERNMENT REPORTS

Department of Homeland Security – Office of the Inspector General (OIG): DHS Needs to Enhance Its COVID-19 Response at the Southwest Border, September 10, 2021

This report analyzes U.S. Customs and Border Protection’s (CBP) policies and practices related to Covid-19 management and prevention at the southwest border. The DHS Office of the Inspector General (OIG) found that although CBP follows guidance from the Centers for Disease Control and Prevention for Covid-19 preventative measures, CBP is putting its workforce, support staff, communities, and migrants at risk of contracting the virus due to the agency’s lack of resources to conduct Covid-19 testing on migrants. In general, arriving migrants have been tested and quarantined after transfer from CBP custody.

Department of Homeland Security – Office of the Inspector General (OIG): Violations of ICE Detention Standards at Otay Mesa Detention Center, September 14, 2021

This report identified deficient detention standards that compromised the health, safety, and rights of detainees at the U.S. Immigration and Customs Enforcement’s (ICE) Otay Mesa Detention Center. The DHS’s Office of the Inspector General (OIG) found that the personnel at the facility failed to enforce the use of facial covering and social distancing to prevent the spread of Covid-19. The report also noted that Otay Mesa staff did not respond adequately to detainee grievances and did not forward staff misconduct grievances to ICE as required. The OIG also discovered that Otay Mesa did not provide access to recreation, legal calls, laundry, linen exchange, mail, legal materials, commissary, and law library to detainees in segregation. Finally, the report notes that Otay Mesa staff did not consistently respond to detainee requests in a timely manner and did not specify times for visits with detainees.

Government Accountability Office (GAO): U.S. Citizenship and Immigration Services: Actions Needed to Address Pending Caseload; September 17, 2021

The Government Accountability Office (GAO) reviewed USCIS’s efforts to reduce its pending caseload, which has increased by 85% in recent years. GAO found that policy changes, longer forms, staffing issues, and delays from Covid-19 contributed to longer processing times. It also discovered that although USCIS has several plans to address the backlog, it hasn’t implemented them and hasn’t identified necessary resources.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Explainer: What’s Happening at the U.S.-Mexico Border

This regularly updated explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior. The explainer also includes a Facebook live discussion covering recent developments at the border.

Fact Sheet: Pathways to Protection for Afghans at Risk

This resource provides a comparison between the SIV status, the P2 refugee program, and Humanitarian Parole. It also summarizes the eligibility requirements for each pathway and notes the different application timelines and vetting procedures. The fact sheet also describes what we know about the numbers resettled so far under each pathway and what benefits they receive.

Explainer: Budget Reconciliation and Immigration Reform

This resource explains the elements, rules, and history of the budget reconciliation process. Congressional Democrats are expected to try to use reconciliation to avoid a Senate filibuster and pass immigration reforms with a simple majority.

* * *

*This Bulletin is not intended to be comprehensive. Please contact Arturo Castellanos-Canales, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Arturo can be reached at acastellanos@immigrationforum.org. Thank you.

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