Hello all,

The National Immigration Forum's Legislative Bulletin for Thursday, August 13, 2020 is now posted. We'll publish our next bulletin on Thursday, August 27, 2020.

You can find the online version of the bulletin here: [link removed]

All the best,

Danilo

LEGISLATIVE BULLETIN - Thursday, August 13, 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

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BILLS INTRODUCED AND CONSIDERED
S. 4071
The American Citizen Coronavirus Relief Act

The bill would amend the Coronavirus Aid, Relief, and Economic Security (CARES) Act to allow U.S. citizen spouses in mixed-status families to receive COVID-19 stimulus payments, even if their spouse jointly filed taxes with them under an Individual Taxpayer Identification Number (ITIN). The bill is a companion to H.R. 7346.

Sponsored by Senator Marco Rubio (R-Florida) (6 cosponsors – 6 Republicans, 0 Democrats)

06/25/2020 Introduced in the Senate by Senator Rubio

06/25/2020 Referred to the Senate Committee on Finance

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LEGISLATIVE FLOOR CALENDAR
The U.S. Senate and the U.S. House of Representatives will be in session the week of Monday, August 17, 2020. While many members of Congress have returned home, both chambers are nominally remaining in session in the event a deal is reached concerning additional COVID-19 relief.

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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.

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THEMES IN WASHINGTON THIS WEEK
Federal
COVID-19 Relief Talks Halted After Trump Takes Unilateral Actions
On August 8, following a breakdown in negotiations between the White House and Democratic congressional leaders, President Trump signed a series of executive actions intended to address the continuing effects of the COVID-19 pandemic. The actions, consisting of one executive order and a number of presidential memoranda, would create a new temporary unemployment benefit program, defer payroll taxes to the end of the year, extend student loan repayment relief, and request that federal agencies work to enact eviction protections. The actions, which may be challenged in court for seeking to repurpose federal funding without Congress’ consent, effectively halted congressional talks regarding a new fourth COVID-19 relief package and faced harsh criticism from Democratic leaders, who characterized them as being “unworkable, weak and narrow,” given the ongoing crisis.

Several immigration-related legislative priorities immigration advocates and legislators had hoped to include in a legislative package were not addressed by President Trump’s unilateral actions. The executive actions provides no supplemental emergency funding for U.S. Citizenship and Immigration Services (USCIS), which is set to furlough 13,400 of its 20,000 employees by August 30 due to budgetary shortfalls. Should the USCIS furloughs go into effect, they will result in major delays and backlogs for many immigration services and benefits.

Additionally, proposals to extend COVID-19 stimulus payments to U.S. citizen spouses in mixed families, expand immigrant access to COVID-19 testing and treatment, and expedite the processing of immigrant healthcare workers in the green card backlog – all ideas with some degree of bipartisan support – were not addressed by the presidential actions.

Democratic lawmakers have stated they are still open to continue negotiations with the White House. On August 11, Senate Majority leader Mitch McConnell (R-Kentucky) said it was “time for everybody to get back to the table.”

U.S. Ensures Migrant Children Do Not Have COVID-19, But Still Expels Them under Public Health Rationale
According to an August 10 report in ProPublica, ICE has continued to expel migrant children to Mexico or their countries of origin, purportedly to halt the spread of COVID-19, even after those children have tested negative for the disease. Having ramped up testing to comply with agreements the U.S. maintains with countries in Latin America and the Caribbean to ensure that deportees do not have COVID-19, the administration has continued to summarily expel children with minimal due process. The expulsions are occurring under the authority of a Center for Disease Control and Prevention (CDC) rule, which effectively closed the border to all asylum seekers, including children, in response to the COVID-19 pandemic. More than 2,000 migrant children have been expelled under the CDC rule without being screened for possessing a fear of persecution in their countries of origin.

Under the Trafficking Victims Protection Reauthorization Act (TVPRA), unaccompanied migrant children arriving at the border must be screened for trafficking and fear of persecution and immediately moved to Office of Refugee Resettlement (ORR) custody prior to placement with a sponsor or guardian. However, the administration has used the CDC rule to bypass these required protections, a move which has drawn skepticism from a federal judge amid ongoing litigation on the issue. Instead of transfers to ORR, ICE has reportedly used a private contractor to detain some children in hotels before secretively expelling them, often without informing family members or legal representatives about the children’s whereabouts.

Immigration advocates have said that ICE’s agreement to test all the children undermines the rationale used for their rapid expulsion, namely that they pose a risk of spreading COVID-19. A representative for the American Civil Liberties Union (ACLU) said of the administration’s actions, “If they are now actually testing and know the children do not have COVID, then the policy is that much more unjustified.”

Asked to clarify the apparent discrepancy, an ICE spokesperson reportedly declined to answer, citing pending litigation.

Government Considers Regulation Barring Entry of Citizens and Legal Permanent Residents
According to a CNN report on August 10, the Trump administration is considering a measure restricting the return of certain American citizens and Legal Permanent Residents (LPRs), citing concerns related to the spread of COVID-19. The draft regulation would allow the government to halt the entry of citizens and LPRs at any port of entry in the United States if there is reason to believe that they have been exposed to the virus. If enacted, it would be the latest in a long series of travel restrictions implemented by the administration since March.

The American Civil Liberties Union (ACLU) has stated that any attempt to bar citizens and LPRs from returning to the United States would be unconstitutional. A California hospital system also criticized the rule, saying it would result in, “American citizens not being able to get the care they need." Additionally, U.S.-based humanitarian groups have noted that the rule could hinder their ability to provide needed aid to migrants and asylum seekers on both sides of the border.

Two Men Die in Immigration Detention as COVID-19 Continues to Spread in ICE Facilities
In recent days, two men detained in ICE immigration detention facilities have died after testing positive for COVID-19. On August 7, a 72-year-old Canadian man who had tested positive for COVID-19 died while in ICE custody at a center in Farmville, Virginia, the site of the worst COVID-19 outbreak at any detention center in the country. As of August 6, 290 of 298 detainees at the Farmville facility had tested positive for the virus following the June transfer of 74 detainees into the facility from Arizona and Florida by ICE without quarantining or isolating them. On August 11, a federal judge barred ICE from transferring any more detainees in or out of the facility, calling the facility’s handling of the detainees up to this point a “terrible mistake.”

On August 10, a 70-year-old Costa Rican man detained in Stewart Detention Center in Lumpkin, Georgia died from COVID-19. The Georgia facility is also the site of a major outbreak, with 154 other detainees and 79 employees having tested positive for the virus. Nationwide, over 4,400 ICE detainees — 21% of the total number currently detained by ICE — have tested positive for COVID-19.

Fiscal year (FY) 2020 has seen the highest number of deaths at ICE detention centers since 2006. So far, 18 detainees have died in ICE custody in FY 2020.

Border Apprehension Rates Rise as Migrants Return Multiple Times
According to an August 9 report, one reason for a sharp uptick in apprehensions along the U.S.-Mexico border is that an increasing number of migrants are attempting to re-enter multiple times after being expelled under authority of a March CDC rule. U.S. Customs and Border Protection (CBP) data states that 24% more border-crossers were apprehended in July than in June. According to the August 9 report, the percentage of total apprehensions that involve repeat crossers is over 30%, a recidivism rate that exceeds past years.

Under the March CDC rule, DHS is summarily expelling anyone crossing the southern border without authorization, including asylum seekers, unaccompanied children, and others arriving at the border who would ordinarily be offered additional protections in the U.S. Unauthorized migrants who are expelled without due process during the pandemic previously may have been placed in immigration detention or they would await immigration adjudications in the U.S. or Mexico. Since March, these individuals have all been returned to Mexico, where the COVID-19 pandemic has resulted in the closing of many migrant shelters and service provision along the border. Migrants in this position may see no other option but to attempt to re-enter the United States. The summary expulsion process implemented under the CDC rule also allows re-entrants to return without additional penalties or prosecution, another possible factor in the increasing recidivism rate.

Despite the July increase, apprehensions along the U.S.-Mexico border are significantly lower than the same month in 2019, when CBP conducted more than twice as many arrests.

Legal
Appeals Court Allows Reimplementation of Public Charge Rule for all but Three States
On August 10, the U.S. Court of Appeals for the Second Circuit blocked a nationwide injunction of the administration’s public charge rule, an effort to further limit legal immigration by individuals who have used or are deemed likely to use certain public benefits. The rule will now be implemented everywhere but New York, Connecticut, and Vermont, where a separate injunction of the policy remains in place.

The Circuit Judge did not provide reasoning for his rejection of a lower court’s injunction, which had found that the policy was discouraging residents from seeking medical care in the midst of the COVID-19 pandemic. While USCIS had published an alert assuring that medical treatment related to COVID-19 would not result in the denial of status under the public charge rule, advocates expressed concerns that immigrants would still be discouraged from obtaining needed benefits for which they are eligible.

State Department Eases Visa Restrictions as Litigation Over Proclamation Suspending Immigration Continues
In updated guidance on August 13, the State Department provided significant relief to nonimmigrant workers who had been stuck abroad as a result of President Trump’s June 22 proclamation suspending immigration. The guidance stated that all H-1B and L-1 employees seeking to return to the U.S. to “resume ongoing employment” would no longer be affected by the June proclamation. The guidance also exempted H-1B workers who are “technical specialists [and] senior level managers,” and issued a set of particular criteria for exemptions relating to travel “necessary to facilitate the immediate and continued economic recovery of the United States.”

The five listed criteria for the “economic recovery” exemption are: The H-1B employer has a “continued need” for the work; the employer would otherwise suffer financial hardship; the employee contributes to a “critical infrastructure need”; the employee is paid 15% more than the prevailing wage; and the employee has “unusual expertise” in the field. H-1B recipients must meet two of these five benchmarks to be eligible for the exemption.

The guidance also included additional exemptions for certain H-2B nonagricultural guestworkers and J-1 exchange visitors.

The guidance comes as a series of legal challenges to various parts of the June proclamation continue to progress. An attorney involved in the litigation said that “the State Department issued these broad exceptions to the proclamation to stave off the lawsuits, but they must continue with equal vigor.” A representative for the American Immigration Lawyers Association (AILA) said the lawsuits will continue, and noted that the guidance itself is a “violation of the Immigration and Nationality Act.”

The June 22 Presidential proclamation extended green card restrictions which first went into place in April and included several additional bans on certain categories of temporary workers and their families.

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GOVERNMENT REPORTS
There were no immigration-related government reports the week of Monday, August 10, 2020.

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SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
Naturalization Fee Increases
This infographic describes a number of fee changes for applications related to naturalization set to go into effect October 2, 2020.

Public Charge Regulation Summary
This summary provides an overview of the Trump administration’s final rule that would redefine the meaning of the legal term “public charge.” Under the new, broadened definition of “public charge,” immigrants applying for a green card, an immigrant visa, or a temporary visa may be rejected if they have previously accessed or are deemed likely to rely on certain forms of public assistance.

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.

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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 [email protected]. Thank you.