Legislative Bulletin — Friday, September 9, 2022

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

There were no new immigration-related bills introduced in Congress this week.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of September 12, 2022.

The U.S. House of Representatives will be in session from Tuesday, September 13, through Friday, September 16, 2022.

UPCOMING HEARINGS AND MARKUPS

Hearing: To examine flatlining care, focusing on why immigrants are crucial to bolstering our health care workforce

Date: Wednesday, September 14, 2022, at 10:00 am E.T. (Senate Judiciary Committee)

Location: 226 Dirksen Senate Office Building, Washington, D.C.

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Federal

Refugee Resettlement Decreases as FY 2022 Nears its End

Refugee resettlement data released on September 6 by the State Department revealed that the administration resettled a total of 2,229 refugees in August, marking a 14% decrease from the 2,589 resettled in July and reversing the upward trend from the previous three months. Entering the final month of FY 2022, this decrease puts the administration on pace to resettle a total of only 21,730 refugees, not even 20% of the 125,000 ceiling set last September. The severe discrepancy between the ceiling and low actual resettlement totals motivated 11 U.S. senators and 385 elected officials to send President Biden two separate letters expressing concern over the slow pace of refugee resettlement and urging the President to prioritize improving the U.S. Refugee Admissions Program.

The decreased numbers from August can be attributed to decreases in resettlement from a number of countries of origin, including the Congo, which experienced a sharp 40% drop from 1,182 to 712. Moreover, resettlement numbers continue to be extraordinarily low for Uyghur refugees, as there have only been 3 admissions over the entire span of FY 2022. However, despite the overall drop, admissions for refugees originating in the Americas increased by 48% from 197 to 293.

Even as the administration is reportedly considering to transition away from humanitarian parole for Afghans at risk, only 218 total Afghans were resettled via the refugee admissions process in August. Notably, however, there was a 69% increase in Afghan SIV arrivals between July and August, with August totals reaching 1,802.

Biden Administration Announces Expectation to Use All Employment-Based Green Cards in FY 2022

On September 8, U.S. Citizenship and Immigration Services (USCIS) announced that it expects to use all the 281,507 employment-based green cards made available under statute before the 2022 fiscal year (FY) ends on September 30. According to the agency, as of August 31, USCIS had already used 263,510 employment-based immigrant visas. USCIS also highlighted that the agency remained committed to taking every viable policy and procedural action to maximize the use of all available visas for the remainder of this year and in FY 2023. The announcement represented a positive improvement compared to last year when over 80,000 employment-based green cards went unused.

Every year, the U.S. sets aside a specific number of available green cards for individuals from all around the world. However, over the years, various administrative complications have left hundreds of thousands of employment-based green cards unissued. Thus far, employment-based green cards that go unused by the end of a fiscal year go to waste.

According to a September 8 Wall Street Journal report, USCIS director Ur Jaddou said that one of her priorities for the year had been to avoid wasting a single employment-based green card. For that purpose, she said that the agency had to change several of its processes. “We know so many people have been waiting and so many people have been nervous about another loss-of-visa situation, and those are real people,” Jaddou stated.

Biden Administration Restores Historic Meaning of “Public Charge”

On September 8, the Department of Homeland Security (DHS) issued a final rule restoring the 20-year-old meaning of “public charge” in the context of adjudicating eligibility for visas and green cards. This rule fully unravels the Trump administration’s prior attempt to increase noncitizen ineligibility for certain visas and green cards.

The Immigration and Nationality Act provides that a noncitizen who primarily depends on the U.S. government for subsistence may be deemed a public charge and denied a green card or admission to the U.S. Since 1999, non-cash assistance like Medicaid or food stamps was not considered when making public charge inadmissibility determinations. But in 2019, the Trump administration enacted a controversial rule increasing the list of benefits, including non-cash assistance, that could be considered when adjudicating inadmissibility. As a result, some noncitizens and mixed-status families did not take advantage of certain benefits they were entitled to for fear of immigration consequences. This rule was vacated in 2020.

DHS’s new rule codifies the pre-2019 criteria for public charge determinations, limiting the number of public benefits that can weigh against green card and certain visa applications. The rule will take effect on December 23, 2022.

Immigration Courts Backlog Reaches Record-High 1.8 Million Pending Cases

According to a recent report by Syracuse University’s Transactional Records Access Clearing House, the U.S. immigration court backlog reached 1,861,180 pending cases in July — the largest backlog on record. The latest numbers represent a considerable increase from the 1,596,193 cases reported in December 2021.

The immigration courts — which fall under the Department of Justice — have been increasingly overburdened over the years as more cases are added to the docket than can be addressed. According to a September 6 New York Times report, over one million asylum seekers have been processed into the United States during the Biden administration. According to the report, these asylum seekers will have to wait seven years on average before a decision on their case is reached because of the nation’s clogged immigration courts.

1,395 Asylum Seekers Have Been Processed Under New Asylum Rule After First Three Months of Implementation

On September 1, the Department of Homeland Security (DHS) released data of the first three months of implementation of a new asylum rule intended to improve and expedite the processing of asylum claims at the border. The rule — first implemented in select locations along the border on May 31 — allows U.S. Citizenship and Immigration Services (USCIS) asylum officers to adjudicate asylum applications of certain recent border-crossers. Under the rule, asylum seekers at the border who pass initial Credible Fear Interviews (CFIs) are placed in non-adversarial, expedited asylum adjudication processes conducted by asylum officers.

After the first three months of implementation, 1,395 asylum seekers have been processed. The released data shows that 477 migrants were found to have a credible fear claim (CFC), 432 failed to prove a CFC and were placed in expedited removal proceedings, 466 cases were still pending, and 8 cases were dismissed and placed in traditional immigration proceedings. Of the 185 cases with initial outcomes listed in the data, 24 were granted asylum, 52 were denied at the first instance and referred to an immigration judge, and 100 remain pending.

The administration plans to roll out the rule to more and more locations at the border.  It is designed to help alleviate the immigration court case backlog and reduce the wait time for migrants to have their cases heard. However, the rapid timeline of the new process has led some advocates to raise concerns that asylum seekers will be unable to retain meaningful access to legal representation.

Biden Administration Opens Renewal Process for TPS Beneficiaries from Venezuela

On September 7, the Biden administration posted a Federal Register notice officially extending Temporary Protected Status (TPS) for Venezuela for 18 months and describing how beneficiaries can re-register to retain their status and renew their Employment Authorization Documents. The notice was posted almost two months after the Biden Administration announced it intended to extend TPS for Venezuela. The 18-month extension — effective from September 10, 2022 — will permit around 343,000 current Venezuelan TPS holders to retain their status through March 10, 2024. However, the extension was not accompanied by a redesignation, meaning the over 150,000 Venezuelans who arrived in the U.S. after March 8, 2021, will not be eligible for TPS.

TPS is granted by DHS to eligible foreign-born individuals who are unable to return home safely due to violence or other circumstances in their home country.

GOVERNMENT REPORTS

U.S. Department of Agriculture, Economic Research Service; “The H-2A Temporary Agricultural Worker Program in 2020;” August 2022.

The H-2A Agricultural Guest Worker program allows U.S. agricultural employers who anticipate labor shortages to hire foreign workers on a temporary or seasonal basis. This report analyzes—by State, industry, and type of employer— the job offers of U.S. agricultural employers who sought U.S. Department of Labor certification in fiscal year 2020. The number of jobs certified to be filled with H-2A workers increased from around 75,000 in FY 2010 to around 275,000 in FY 2020. Six States accounted for 55 percent of H-2A jobs certified: Florida (14 percent), Georgia (10 percent), Washington (10 percent), California (9 percent), North Carolina (8 percent), and Louisiana (4 percent).

Congressional Research Service (CRS); “An Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum“; September 7, 2022.

Asylum is a humanitarian form of relief available to aliens who face persecution in their native countries (or last place of residence if stateless). INA § 208, however, bars some asylum seekers from asylum. These restrictions fall into two categories: (1) limitations on the ability to apply for asylum and (2) limitations on the ability to be granted asylum. This CRS legal sidebar discusses statutory bars to applying for asylum in the United States.

Congressional Research Service (CRS); “The Law of Immigration Detention: A Brief Introduction“; September 1, 2022.

This CRS brief provides an introduction to the immigration detention framework. The Immigration and Nationality Act (INA) authorizes— and in some cases requires—the Department of Homeland Security (DHS) to detain non-U.S. nationals who are subject to removal from the United States. This detention scheme is multifaceted, with rules that turn on several factors, such as whether the individual is seeking admission or has been lawfully admitted into the country; whether the individual has engaged in certain proscribed conduct; and whether the individual has been issued a final order of removal.

Congressional Research Service (CRS); “Are Temporary Protected Status Recipients Eligible to Adjust Status?“; September 1, 2022.

This CRS Legal Sidebar provides a brief overview of the adjustment of status framework and TPS. It examines the federal jurisprudence regarding TPS recipients’ eligibility for adjustment, DHS’s related guidance, and legislative proposals on TPS.

Department of Homeland Security Office of the Inspector General (DHS-OIG); “DHS Encountered Obstacles to Screen, Vet, and Inspect All Evacuees during the Recent Afghanistan Crisis;” September 6, 2022

This DHS-OIG report presents the results of an audit to determine the extent to which DHS screened, vetted, and inspected evacuees arriving as part of Operation Allies Welcome (OAW). After the withdrawal of US troops from Afghanistan, the United States welcomed more than 79,000 Afghan evacuees between July 2021 and January 2022. The report notes challenges faced by the agencies administering the vetting process for evacuees, and highlights two evacuees who were determined to be security risks who were subsequently deported.

Department of Homeland Security Office of the Inspector General (DHS-OIG); “USCIS Should Improve Controls to Restrict Unauthorized Access to Its Systems and Information;” September 6, 2022

This DHS-OIG report highlights that U.S. Citizenship and Immigration Services (USCIS) failed to apply the information technology (IT) access controls needed to restrict unnecessary access to its systems, networks, and information. USCIS did not consistently manage or remove access for its personnel once they departed positions and did not have a process to adequately verify access after personnel transferred offices within USCIS. Also, USCIS did not take all necessary steps to ensure privileged user access was appropriate and did not adequately manage and monitor service account access. These deficiencies stemmed from insufficient internal controls and day-to-day oversight to ensure access controls are administered appropriately and effectively to prevent unauthorized access.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Bill Summary: Support Our Afghan Allies Act

This bill seeks to improve pathways to protection for Afghans left behind after the fall of Kabul to the Taliban. The bill was included as an amendment to the House National Defense Authorization Act (NDAA), which passed in July.

The Current State of DACA: Challenges Await in Litigation and Rulemaking

This explainer describes the current state of the Deferred Action for Childhood Arrivals (DACA) program, discussing the ongoing attempts to scale back or end the program in the courts and the current administration’s attempts to preserve the program.

What Makes a Border Secure? Building a Healthier Border Dialogue

This paper creates an actionable border security framework based on the best and most appropriate available metrics and data. It surveys previous and ongoing attempts to describe and quantify border security, and it proposes a series of policy recommendations to create a healthier dialogue around securing our border, including an expanded role for the DHS Office of Immigration Statistics and the creation and publication of new border metrics.

* * *

*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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