Legislative Bulletin – October 23, 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. 4842

The bill would exempt au pairs on J-1 visas planning to enter the U.S. to provide childcare services to members of the U.S. armed forces from Presidential Proclamation 10052, which suspends many categories of immigration, purporting to help American workers and aid the economic recovery in the wake of the COVID-19 pandemic. The bill also would also prevent the Secretary of Homeland Security from denying J-1 au pairs for military families except on a case-by-case basis.

Sponsored by Senator Tammy Duckworth (D-Illinois) (0 cosponsors)

10/21/2020 Introduced in the Senate by Senator Duckworth

10/21/2020 Referred to the Senate Committee on the Judiciary

S. 4837

The Neighbors Not Enemies Act

The bill would repeal the Alien Enemies Act of 1798, which would allow the President of the United States to apprehend, restrain, secure, and remove foreign nationals without due process while America is at war. The Alien Enemies Act is one of the four Alien and Sedition Acts signed into law by President John Adams in 1798.

Sponsored by Senator Mazie Hirono (D-Hawaii) (3 cosponsors – 3 Democrats, 0 Republicans)

10/21/2020 Introducecd in the Senate by Senator Hirono

10/21/2020 Referred to the Senate Committee on the Judiciary

H.R. 8617

The Temporary Family Visitation Act

The bill would establish a new B-3 nonimmigrant visa category to allow the family members of U.S. citizens and permanent residents to stay in the U.S. for temporary periods. The U.S. resident would be required to petition for their family members, including spouses, children, grandchildren, grandparents, aunts, uncles, nieces and nephews.

Sponsored by Representative Scott Peters (D-California) (1 cosponsor – 1 Republican, 0 Democrats)

10/16/2020 Introduced in the House of Representatives by Representative Peters

10/16/2020 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, October 26, 2020.

The U.S. House of Representatives will not be in session the week of Monday, October 26, 2020.

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

545 Migrant Children Remain Separated from their Parents 

According to a court filing on October 20, American Civil Liberties Union (ACLU) lawyers stated that the government has not reunited, and in many cases has not located, the parents of 545 children after it separated them as part of a pilot program in 2017. The filing noted that the majority of the parents had been deported to Central America without their children and without any clear records of the separation. Many of the children remain in the U.S., either in foster homes or with family members, but according to an October 21 NPR report, the government has also not been able to locate 360 of the children.

The filing came in an ongoing court case arising from the “zero tolerence” policy that led to thousands of family separations in 2018. In 2018, a federal judge in California ordered the government to end the “zero tolerance” policy, which required border officials to criminally prosecute all undocumented immigrants and resulted in mass family separations. The judge initially ordered the government to reunite 2,700 children who had been separated from their parents due to the policy, but the court later discovered that 1,556 additional children were separated in the 2017 pilot program. The court assigned the ACLU and other nonprofit groups to assist in locating and reuniting the families separated in the 2017 program. With the administration having failed to maintain records of the separated families, ACLU lawyers and volunteers have gone “door to door” in Guatemala and Honduras in an attempt to locate the parents, according to the October 20 filing.

A representative for the Department of Homeland Security (DHS) said that families were still separated because many of the parents declined to be reunited with their children. However, according to multiple reports, many of the children and parents have not been located or contacted by the admninstration or by the nonprofit groups assisting with the search. In a hearing on October 22, government lawyers said they are “open to” helping to locate the missing parents. The issue was the subject of a spirited exchange during the October 22 presidential debate.

ICE Interior Enforcement Crack Down Continues as Expedited Removal Policy Is Implemented

According to an October 17 report, U.S. Immigration and Customs Enforcement (ICE) arrested 172 immigrants in six “sanctuary jurisdictions” across the country during a six-day span in early October. According to the agency, those arrested were already facing deportation, or had been arrested and released by state or local law enforcement agencies. DHS acting secretary Chad Wolf stated that ICE will continue its enforcement practices regardless of cooperation with state and local officials.

This series of arrests comes only a week after similar raids across sanctuary jurisdictions in California. 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.

Alongside these arrests, the administration has also begun implementing its expanded expedited removal policy, initially unveiled in July 2019 but blocked by the courts until September 2020. Expedited removal is a fast-track removal process that allows ICE officials to deport certain immigrants without first affording them a hearing before an immigration judge. The policy previously only applied to unauthorized entrants who were apprehended within 100 miles of the border and who had been present in the U.S. for less than 14 days. The expanded policy would now effect any undocumented immigrant anywhere in the U.S. who has been present in the U.S. for under two years.

Immigrant advocates and legal groups are continuing to challenge the expansion of the policy in court.

USCIS Institutes Price Hikes for Premium Processing, Delays Expansion of Program

On October 19, U.S. Citizenship and Immigration Services (USCIS) increased fees for Premium Processing, a program which allows petitioners for certain immigration statuses and benefits to expedite the processing of their visas. The change raises fees for Premium Processing, which impacts visa categories such as the H-1B high-skilled visa and the R-1 religious worker visa, from $1,440 to $2,500.

The change comes in accordance with the Emergency Stopgap USCIS Stabilization Act, a bill designed to provide emergency funding to USCIS that was incorporated into a broader appropriations bill and passed on October 1. The bill also called for an expansion of Premium Processing services to a number of major immigration forms, including for work authorization and green card petitions. However, even as the fee increases went into place, implementation of the expansion remains pending.

Previously, in May 2020, USCIS had notified Congress that it was facing a severe budget shortfall and would have to furlough more than 13,000 workers if it did not receive $1.2 billion in emergency funding from Congress. In August, Senate Appropriations Committee Vice Chairman Patrick Leahy (D-Vermont) said that USCIS had revised its estimate and was projecting a surplus for Fiscal Year (FY) 2020, and the agency delayed planned furloughs.

Administration Finalizes Implementation of Additional Criminal Bars to Asylum

On October 20, the Trump administration finalized a regulation that would add seven categorical criminal bars to accessing asylum in the U.S. The rule will go into effect on November 20, and includes bars for re-entering the country illegally, using a false identity, driving under the influence, and a number of other defined felony and misdemeanor offenses. The rule would also expand the definition of immigrant smuggling, barring not only those involved in human trafficking, but also first-time offenders who attempt to aid family members enter the U.S. It also adopts a broader definition of harboring, potentially applying to people engaging in routine conduct like driving someone to work or to a doctor’s appointment.

The rule is part of a long line of asylum restrictions and regulations proposed and implemented by the Trump administration. Currently, asylum processes at the border have been effectively shut down due to a pandemic-related rule which has resulted in the summary expulsion of nearly all asylum seekers who attempt to make a claim for protection, including unaccompanied children.

Immigration advocates have criticized the new categorical bars, stating that they constitute an overly broad reading of the “particularly serious crime” exception that appears in U.S. statute and will prevent people with valid asylum claims from having a fair opportunity to make their case before an immigration judge. One international rights group called the rule “unnecessary, punitive and unlawful.”

Trump Administration Secretively Deports Venezuelans

On October 16, Ranking Member of the Senate Foreigh Relations Committee Bob Menendez (D-New Jersey) wrote a letter to White House officials expressing concern regarding the “surreptitious[ ]” deportations of asylum-seeking Venezuelans in Fiscal Year (FY) 2020. According to the letter, the deportations continued after the Federal Aviation Administration (FAA) banned all air passage to Venezuela in May 2019 due to “increasing political instability and tensions.” In order to continue to deport the asylum seekers, the administration first flew them to countries like Panama and Trinidad and Tobago, where they boarded third-party airlines that returned them to Venezuela.

In August 2020, a Trump administration official said that it is not safe to deport Venezuelans and that the Trump administration is “currently not doing so.” Enforcement data shows that at least 100 Venezuelans were deported through March 2020, and Menendez’s letter asks the White House to clarify when precisely the deportations ceased and what legal authority the administration was acting under when it sidestepped the FAA flight ban.

DHS to Crack Down on Work Permits for International Students

On October 21, the Department of Homeland Security (DHS) announced it would either revoke or refuse to renew 1,100 Optional Practical Training (OPT) work permits, as part of what it characterizes as a crackdown against fraud in the program for international students. OPT is a program used by international students, particularly those in STEM fields, to work in their field of study while in the U.S. on a student visa. OPT allows students one to three years of work authorization in a field that is related to their degree.

The DHS crackdown, part of what the agency calls “Operation OPTical Illusion,” targets those who are not properly abiding by the terms of the OPT program. Of the 220,000 students currently in the program, the operation resulted in the revocation of 700 permits and the refusal to renew an additional 400 permits.

Acting Deputy Secretary of DHS Ken Cuccinelli said the operation would not only impact international students, but that “there’ll be consequences” for universities who signed off on improper OPT placements.

Legal

Major Business Groups File Litigation Challenging H-1B Restrictions

On October 16 and 19, three lawsuits were filed challenging two recent regulations restricting the H-1B nonimmigrant visa program for high-skilled “specialty occupations.” The first lawsuit, filed on October 16 by the the Wasden Banias law firm on behalf of several technology companies and employer groups, focuses on the Department of Labor (DOL) wage rule that aims to significiantly raise minimum wage requirements for H-1B workers.

Two additional lawsuits were filed on October 19, one led by the U.S. Chamber of Commerce and the National Association of Manufacturers, and the other spearheaded by the American Immigration Lawyers Association (AILA), Purdue University and the Information Technology Industry Council. Both suits target the DOL wage rule and the DHS H-1B rule, which seeks to restrict which jobs qualify as “specialty occupations” and place additional limits on appicants who are hired by one company but are contracted out to a second employer.

The various lawsuits argue that the Trump administration lacked good cause to implement these broad restrictions without a standard notice and comment period. The lawsuits also emphasized the importance of the H-1B program to “universities, businesses, research facilities and healthcare providers.”

Supreme Court to Review Two Major Immigration Cases in 2021

The Supreme Court announced that it will review two challenges to the Trump administration’s immigration policies in 2021. The first case, Trump v. Sierra Club, will focus on the administration’s diversion of military funds to pay for the construction of barriers on the U.S.-Mexico border. The second case, Wolf v. Innovation Law Lab, will focus on the administration’s Migration Protection Protocols (MPP), which required thousands of asylum seekers at the southern border to remain in Mexico while their asylum claims are processed. In both cases, the Supreme Court has previously stayed preliminary injunctions that blocked the policies.

The administration appealed to the Supreme Court after previous adverse rulings in the lower courts. In March, the U.S. Court of Appeals for the Ninth Circuit held that the MPP policy contradicted the Immigration and Nationality Act. In June, the Ninth Circuit also ruled that the administration’s diversion of defense, military and other funding violated the Appropriations Clause of the Constitution, which gives Congress the exclusive power of the purse.

GOVERNMENT REPORTS

There were no immigration-related government reports issued the week of Monday, October 19, 2020.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Family Separation at the U.S.-Mexico Border

This fact sheet provides an updated overview of the issue of family separation at the Southwest border, including information on the Department of Justice’s (DOJ) former “zero-tolerance policy” to prosecute all individuals crossing the U.S. border between ports of entry without authorization.

Fact Sheet: Immigration and Customs Enforcement

This fact sheet provides an overview of ICE, describing the agency’s role in the immigration system and providing details about its mission, priorities, and size.

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 contributions 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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