Legislative Bulletin — Thursday, August 25, 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

S. 4773

Fighting Foreign Illegal Seafood Harvests Act (FISH Act) of 2022

Among various other provisions, the bill would deny the issuance of any type of visa to individuals who benefit from illegal fishing, unreported fishing, and unregulated fishing.

Sponsored by Senator Dan Sullivan (R-Arkansas) (1 cosponsor— 1 Democrat, 0 Republicans)

08/04/2022 Introduced in the Senate by Senator Sullivan

08/04/2022 Referred to the Senate Committee on Commerce, Science, and Transportation

S. 4781

Border Airport Fairness Act of 2022

The bill would require the President of the United States to designate as ports of entry all airports located not more than 30 miles from the northern or southern international land border of the United States.

Sponsored by Senator Ted Cruz (R-Texas) (0 cosponsors)

08/04/2022 Introduced in the Senate by Senator Cruz

08/04/2022 Referred to the Senate Committee on Finance

H.R. 8628

Support Our Afghan Partners Act of 2022

The bill would require the State Department to increase its consular personnel to better support special immigrant visa (SIV) applicants who are nationals of Afghanistan and referrals of nationals of Afghanistan to the United States Refugee Admissions Program. The bill would also require the State Department to reduce its application processing times while ensuring strict and necessary security vetting and enabling refugee referrals to initiate application processes while still in Afghanistan.

Sponsored by Representative Elissa Slotkin (D-Michigan) (1 cosponsor— 1 Republican, 0 Democrats)

07/29/2022 Introduced in the House by Representative Slotkin

07/29/2022 Referred to the House Committee on the Judiciary

H.R. 8672

Trafficking Survivors Relief Act of 2022

The bill would grant authority to courts to vacate a conviction or expunge an arrest for a nonviolent federal offense committed as a direct result of the person having been a victim of trafficking. Hence, if a conviction is vacated under this law, immigrants could not be removed, determined to be inadmissible, or lose any immigration benefit because of such conviction, arrest, or institution of criminal proceedings.

Sponsored by Representative Burgess Owens (R-Utah) (3 cosponsors— 2 Democrats, 1 Republican)

08/05/2022 Introduced in the House by Representative Owens

08/05/2022 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and U.S. House of Representatives will not be in session until Tuesday, September 6, 2022.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings scheduled for the next week.

THEMES IN WASHINGTON THIS WEEK

Federal

Biden Administration Releases Text of Regulation Designed to Preserve and Fortify DACA

On August 24, the Department of Homeland Security released the text of a final rule codifying the Deferred Action for Childhood Arrivals (DACA) program, which provides protections for certain young undocumented immigrants who were brought to the U.S. as children. The rule — which will be officially published on August 30 and will go into effect on October 31 — codifies the existing DACA policy as announced in the 2012 Napolitano Memorandum. However, while a district court injunction resulting from an ongoing legal challenge to DACA remains in effect, the Department of Homeland Security (DHS) will continue to be prohibited from granting DACA to new or pending applicants. Under the terms of the injunction, DHS can only grant DACA renewal requests under the final rule.

In a press release, Secretary of Homeland Security Alejandro Mayorkas stated that the administration is “taking another step to do everything in our power to preserve and fortify DACA.” However, he called on Congress “to pass legislation that provides an enduring solution for the young Dreamers who have known no country other than the United States as their own.” In a statement, President Biden stressed that legislation providing a pathway to citizenship for Dreamers “is not only the right thing to do, it is also the smart thing to do for our economy and our communities.”

The purpose of the rule is in part to attempt to fortify DACA against procedural concerns raised in Texas et al. v. USA, a case concerning the legality of DACA. The case stems from a July 16, 2021 ruling from District Court Judge Andrew Hanen in which he held that DACA was unlawful based on both procedural and statutory grounds, granted a permanent injunction vacating the original 2012 DACA memorandum, and prevented USCIS from approving new DACA applications. However, noting the reliance interest of current DACA recipients, Judge Hanen temporarily stayed the injunction for those who had DACA protections at the time of the ruling, allowing them to continue to receive and renew protections.

The case has been appealed to the Fifth Circuit, which is expected to make its ruling shortly. The impact of the new rule on the legal proceedings is not yet clear.

Veterans, Advocacy Groups Mark First-Year Anniversary of Kabul Evacuation with Push for Afghan Adjustment Act

On August 15, commemorating one year after the U.S. military withdrawal from Afghanistan, veteran and immigration advocacy groups urged Congress to pass the Afghan Adjustment Act, a bill that would provide a path to permanence to tens of thousands of Afghans who were evacuated under humanitarian parole to the U.S. following the fall of Kabul in August 2021. The bill, which received a bipartisan introduction in both the House and Senate on August 10, also includes provisions to ensure that eligible Afghan evacuees have been subject to rigorous vetting and screening procedures, and it would improve and expand pathways to protection for those left behind and at risk in Afghanistan.

In the past year, the U.S. military has evacuated over 124,000 people from Afghanistan – including tens of thousands of Afghan allies, refugees, parolees, and their families. The vast majority of them were vetted and then brought to the U.S. under humanitarian parole, which — unlike refugee or asylum status — does not automatically confer a path to a green card or citizenship. Afghan parolees are granted two years of protection from deportation and work authorization but no further access to status.

Congress has passed adjustment acts in the aftermath of multiple prior evacuations, including for Cubans fleeing the Castro regime in the 1960s, for Vietnamese and South Asian refugees after the fall of Saigon in 1970s, and Iraqis after Operation Desert Storm and Operation Iraqi Freedom in the 1990s.

According to an August 16 Axios report, the Biden administration is developing a portal to facilitate the reunification of Afghans with family members left behind in Afghanistan. The portal would become a central location where family members could upload their information through a streamlined process and fill out the right forms to enable their relatives to access the pipeline for entry into the U.S. The Axios report also noted that the Biden administration is considering exempting Afghans from the $535 fee that is associated with filing for relatives to enter the country.

July Border Data Reveals Decrease in Migrant Arrivals

On August 15, U.S. Customs and Border Protection (CBP) released official data on the number of migrants the agency had apprehended or encountered at the southwest border in the month of July. The data showed a 4% decrease in overall monthly encounters as arrivals fell to 199,976 in July from June’s total of 207,933. The data showed fewer border encounters than July 2021, the first year-on-year decrease since August 2020.

The encounter data continues to be inflated by a high number of repeat crossers, with CBP reporting recidivism rates at 22%. Taking this repeat crosser rate into account, the total number of “unique” crossers encountered in July was 162,792.

The use of Title 42 — a pandemic-era policy used to rapidly expel migrants without providing them a chance to seek protection under U.S. law — decreased in July. Title 42 was used 74,573 total times, representing 37% of all encounters, down from 44% of all encounters in June (93,633) and over 50% of all encounters since the policy was implemented in April 2020.

The overall decrease in encounters was driven in part by a decline in arrivals from Mexico, Honduras, Guatemala, and El Salvador — countries that in the past have made up the vast majority of border encounters. Collectively those four countries made up just 52% of all encounters in July as migration at the southern border has become increasingly global. Even as other encounters fell, the month of July saw a 34% increase in arrivals of Venezuelans, reaching 17,651 encounters. In addition, the number of unaccompanied children arriving at the border decreased 13% in July. In July, the average number of unaccompanied children in CBP custody was 562 per day, compared with an average of 752 per day in June.

CBP Opens Internal Investigation to Review Complaints of Religious Violations Against Sikh Asylum Seekers

On August 3, U.S. Customs and Border Protection (CBP) opened an internal investigation to review complaints of religious violations against Sikh asylum seekers. The investigation stems from an August 1st letter by The American Civil Liberties Union (ACLU) of Arizona highlighting that nearly 50 Sikh individuals reported that Yuma Border Patrol agents had confiscated their turbans during asylum processing in the last two months.

In response to the letter, CBP Commissioner Chris Magnus stated that he expects CBP employees to treat all migrants with respect and announced the opening of an internal investigation to address this matter. However, on August 17, the ACLU reported that the organization had knowledge of at least 12 new cases of turban confiscation in August. The new allegations sparked a new letter spearheaded by the ACLU and the Sikh Coalition, and co-signed by 162 organizations, requesting Secretary of Homeland Security Alejandro Mayorkas to end the mistreatment of religious migrants by U.S. border officials in Arizona and at other border-crossing points.

The turban confiscation report also led to a congressional letter signed by Representatives Raul Grijalva (D-Arizona), Joaquin Castro (D-Texas), and Judy Chu (D-California) urging CBP Commissioner Magnus to take the necessary steps to remedy the situation and inform Congress of the agency’s progress by September 6, 2022.

USCIS Reaches Fiscal Year 2023 H-1B Cap

On August 23, U.S. Citizenship and Immigration Services (USCIS) reported that the agency had received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap as well as the additional 20,000 H-1B visas reserved for graduates with advanced degrees from a U.S. institution for fiscal year (FY) 2023. The H-1B visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers for specialty jobs that mainly require a bachelor’s degree in a wide variety of fields.

USCIS noted that while it would stop accepting new H-1B petitions for the coming period, it would continue processing other applications associated with H-1B status, including those to extend the amount of time a current H-1B worker may remain in the United States, change the terms of employment for current H-1B workers, allow current H-1B workers to change employers, and allow current H-1B workers to work concurrently in additional H-1B positions.

Biden Administration Updates Conditions for Military Naturalizations

On August 2, U.S. Citizenship and Immigration Services (USCIS) expanded the eligibility to naturalize for members of the U.S. Armed Forces with “uncharacterized” military discharges. Pursuant to immigration laws, only applicants who are discharged “under honorable conditions” are eligible for naturalization. Previously, USCIS interpreted that an “uncharacterized” military discharge did not qualify as a discharge “under honorable conditions.” The new policy guidance, however, updated that interpretation to include “uncharacterized” discharges as “under honorable conditions“ discharges.

Biden Administration Announces Plans to Expand Remote Verification of Immigrant Worker Eligibility

On August 18, the Department of Homeland Security (DHS) published a proposed rule seeking to expand a temporary program that allows verification of immigration documents through electronic means, including email, video, and fax.

Prior to the COVID-19 pandemic, employers were required to inspect and authenticate — in person — the immigration documents of immigrant employees, such as passports, green cards, and work authorizations. Due to social distancing requirements during the pandemic, however, the in-person verification requirement was waived, and in March 2020, ICE issued an announcement allowing employers to inspect the immigration documents remotely within three business days of the employee’s first day of employment. The new proposed rule would not directly authorize remote document examination, but it would create a framework under which DHS could pilot options to respond better to future emergencies similar to the COVID-19 pandemic.

State & Local

Florida’s Lieutenant Governor Threatens to Bus Cuban Migrants to Delaware

On August 22, Florida Lieutenant Governor Jeanette Nuñez said that the administration of Governor Ron DeSantis (R-Florida) was planning to bus arriving Cuban migrants to Deleware. Nuñez later walked the statement back, noting the state would not attempt any actions against Cubans or those “fleeing repressive dictatorial regimes and those seeking political asylum.” On August 23, Governor Ron DeSantis said that his government had not had the need to bus migrants out of Florida, referencing ongoing bussing initiatives from Governor Abbott of Texas and Governor Ducey of Arizona.

The initial statement came in response to a question about the increasing number of Cuban migrants arriving in Florida. Most of these migrants have crossed the southern border, have undergone initial Border Patrol processing, and are in the midst of ongoing immigration court proceedings.

Arizona Governor Ducey Orders to Fill Gaps in Border Wall with Shipping Containers

On August 12, Governor Doug Ducey (R-Arizona) issued an executive order directing the state to immediately use shipping containers to close a 1,000-foot gap in the U.S. Mexico border wall near Yuma, Arizona. According to the governor, more than 230,000 migrants crossed the Yuma sector between October 2021 and June 2022. Ducey plans to use 60 double-stacked shipping containers welded together and adding four feet of razor wire to reinforce the physical barrier. The shipping containers weigh around 8,800 pounds and are 22 feet high, slightly shorter than the 30-foot sections built during the Trump administration.

Although the project suffered a setback with two containers toppling over the first night they were in place, the state announced that it would continue with its plan to close the gap.

The $6 million project is underway with future plans to fill three gaps in the wall, a total of 3,000 feet. The containers are not placed directly on the border and will not prevent any arriving migrants from crossing into U.S. territory and requesting asylum or other humanitarian relief.

GOVERNMENT REPORTS

Congressional Research Service (CRS); “Comparing DHS Component Funding, FY2023: In Brief”; August 22, 2022.

This CRS brief provides an overview of the Department of Homeland Security’s (DHS) appropriations process for Fiscal Year 2023.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

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.

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.

Review of the Supreme Court’s 2021-2022 Immigration Cases

The review analyzes all the immigration-related cases decided by the Supreme Court this term, including one immigration case from the shadow docket.

* * *

*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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