Legislative Bulletin

 

 

Hello all,

The National Immigration Forum's Legislative Bulletin for Friday,
January 15, 2021 is now posted.

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

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All the best,

Danilo 

**LEGISLATIVE BULLETIN - Friday, January 15, 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**There were no immigration-related
bills introduced or considered the week of January 11, 2021.

**LEGISLATIVE FLOOR CALENDAR**The U.S. Senate will be in session on
Tuesday, January 19, 2021 and from Thursday, January 21, 2021 to Friday,
January 22, 2021.

The U.S. House of Representatives will be in session from Thursday,
January 21, 2021 to Friday, January 22, 2021.

**UPCOMING HEARINGS AND MARKUPS**Hearings to Examine the Expected
Nomination of Alejandro N. Mayorkas, to be Secretary of Homeland
Security

**Date:**Tuesday, January 19, 2021 at 10:00 a.m. (Senate Homeland
Security and Government Affairs Committee)

**Location:**342 Dirksen Senate Office Building and WebEx

**THEMES IN WASHINGTON THIS WEEK**

****Biden Transition Team Plans First-Day Immigration
Legislation****According to multiple

reports
,
President-Elect Joe Biden is planning to introduce an immigration bill
"immediately" upon taking office on January 20. The substance of the
legislation has not yet been made public, but Vice President-Elect
Kamala Harris provided a broad summary

of the transition team's planned legislation in a January 12 interview

with Univision.

In the interview, Harris said the bill would provide green cards to
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected
Status (TPS) recipients, and it would provide an 8-year pathway to
permanent status for other undocumented individuals. Harris also said
the bill would include provisions for additional immigration judges and
legal representation for children attempting to navigate the immigration
court system. She also noted that the new administration will ensure
that all immigrants, regardless of status, will have access to the
Covid-19 vaccine.

Vice President-Elect Harris called
the
planned legislation "a smarter and a more humane way of approaching
immigration." In addition to the bill, the Biden team is also likely to
focus on reversing many of the Trump administration's immigration
restrictions.

****OIG Report: Justice Department Ignored Warnings While Pushing 2018
Zero Tolerance Policy****According to January 14 report
,
DOJ's Office of Inspector General (OIG) concluded

that DOJ leadership and the attorney general's office were aware that
its 2018 "zero-tolerance" policy would result in widespread family
separation
.
Following an investigation, OIG concluded that DOJ, led at the time by
former attorney general Jeff Sessions, was a "driving force" behind the
strategy that required criminal prosecution of all adults who crossed
the U.S. border without authorization. OIG found that despite knowledge
that this would result in the separation of thousands of children from
their parents, DOJ's "single-minded focus on increasing immigrant
prosecutions" led it to implement the policy.

The zero tolerance policy, which was met with widespread criticism from
Members of Congress, faith groups, and the general public, resulted
 in
the separation of more than 3,000 children from their parents in 2018.
In many cases, the Trump administration has struggled to reunite these
families after failing to adequately track which families were separated
and where children were placed.

The finding of the OIG report contradicts statements made at the time by
leading administration officials. Sessions said
 on
June 21, 2018 that he "never really intended" to separate children.
Former DHS Secretary Kirstjen Nielsen claimed
,
"there was no policy to separate families."

****DHS Head Wolf Abruptly Resigns as Replacement Acts to Shore Up
Immigration Restrictions****On January 11, Chad Wolf abruptly resigned

as the acting DHS secretary. The decision came just days after the
violent January 6 attack at the U.S. Capitol, and after President Trump
withdrew

Wolf's nomination to lead DHS on January 7. Wolf was replaced

by Federal Emergency Management Agency (FEMA) administrator Pete Gaynor,
who will serve as acting DHS secretary for the remainder of Trump's
term. Wolf will return to his previous role as DHS undersecretary for
strategy, policy, and plans.

Wolf's resignation letter cited

ongoing legal challenges arguing that he has been improperly appointed
to lead DHS. Thus far, these challenges have resulted in five federal
courts striking down multiple DHS actions and memorandums that were
issued under Wolf's leadership, including

a July 28 memorandum

limiting DACA.

On January 12, Gaynor, who is now the sixth official to lead

DHS during President Trump's four-year term, issued a memorandum

attempting to shore up immigration restrictions issued during Wolf's
tenure. The memo delegates authority to Wolf in his undersecretary role
to sign and ratify agency regulations. Under this authority, Wolf issued
a January 13 memo

ratifying "any and all prior regulatory actions" that took place during
his term, as well as a series of other immigration restrictions that
were issued under his predecessor, Kevin McAleenan, whose appointment
was also in question. It is not yet clear how the January 13 memo will
impact ongoing litigation related to the regulations and agency actions
in question.

In addition to Wolf's resignation, Immigration and Customs Enforcement
(ICE) acting director Jonathan Fahey announced

on January 13 that he would also be stepping down from his role after
less than one month in the position. Fahey's predecessor as acting
director, Tony Pham, stepped down

at the end of 2020 after serving in the role for roughly five months.

****Trump Administration Rushes to Enact Slew of Asylum
Restrictions****The Trump administration is rushing

to enact a series of asylum restrictions in its final days, including
five separate regulations that were set to go into effect between
January 11 and January 22.

One of the rules - sweeping regulations that would have dramatically
restricted all access to asylum, wasblocked

by a federal court in San Francisco on January 8, three days before it
was slated to go into effect. That rule included broad limitations that
would impact nearly everyone seeking protection from the U.S.
government. Among other changes, it would curtail the opportunities
asylum seekers have to make their case before an immigration judge, deny
asylum if migrants did not first seek asylum in a country they passed
through on the way to the U.S., raise the threshold of proof at several
stages in the asylum process, and disqualify certain types
of persecution, including those based on sexual orientation or
torture by a "rogue government official," that previously constituted
grounds for receiving protection.

The remaining restrictions remain on track to be implemented, including
two Department of Justice (DOJ) rules

taking effect on January 15 that would create significantly shortened
deadlines for certain types of asylum proceedings, enact additional
punishments for minor, technical errors present in asylum applications,
and provide additional discretion to DOJ leadership to decide and/or
close asylum cases. A fourth regulation
,
set for January 19, is a rehash of the "third country transit ban" that
aims to prevent asylum seekers from applying for protection in the U.S.
if they had not first sought protection in countries they had traveled
through while fleeing persecution. The last rule
,
set for January 22, would make asylum seekers ineligible for protection
if they exhibit any symptoms of a contagious disease, such as Covid-19,
or if they have traveled from or through a country where a contagious
disease is present.

Advocates have said

that if implemented, the set of rules "will have a devastating effect on
asylum seekers and lead the United States to turn away people seeking
refuge back to the very countries they have fled." The Biden transition
team plans to roll back many of the Trump administration's asylum
restrictions, although regulations that have already been enacted will
likely take time to reverse.

According to a January 7 Buzzfeed News report
,
the regulations are not the only ways the administration is attempting
to restrict asylum in its final days. A December 31 policy directive
from former acting ICE director Tony Pham reportedly advises ICE
officers to reclassify unaccompanied migrant children as accompanied
whenever possible. The change makes it harder for children to navigate
the immigration court system, placing more of them in adversarial
immigration court settings.

****Department of Labor Issues Revised H-1B Wage Rule****On January 14,
the Department of Labor (DOL) reissued

a rule that aims to raise minimum wage requirements for the H-1B
nonimmigrant visa program for high-skilled "specialty occupation"
workers. The rule makes some changes to the original October 8, 2020
rule, which was struck down by three

separate

federal courts

on the grounds that DOL did not have "good cause" to bypass required
notice and comment procedures when it attempted to expedite
implementation and issue the regulation as an interim final rule.

The new DOL wage rule applies a similar formula

as the earlier version for raising minimum wage requirements, but the
required increase would not be as steep for most employers. In addition,
while the initial rule was slated to go into effect immediately when it
was issued, this rule will not take effect for 60 days and includes an
extended phase-in period for the increased wage requirements.

In addition to reissuing the DOL wage rule, on January 8 DHS finalized

a rule that would eliminate the H-1B lottery. Under the rule, U.S.
Citizenship and Immigration Services (USCIS) would be required to
institute a ranking system in its place under which petitions would be
selected based on salary-level, with the highest salaries getting the
highest priority.

The DHS H-1B rule is set to go into effect on March 9, meaning both it
and the reissued DOL rule will be under the purview of the incoming
Biden administration. The Biden administration plans to issue

a "delay memorandum" while it considers further action, extending the
effective date of all regulations that have been published but not yet
gone into effect by 60 days.

****Report: DHS Entered into Agreements Designed to Hamper Biden
Team's Efforts to Reverse Couse on Immigration Policies****According
to a January 15 Buzzfeed News report
,
DHS has signed a number of legally-questionable agreements with states
and localities that could delay future immigration policy changes for
months. The agreements establish a six-month notice and comment period
before a policy change can go into effect, during which the jurisdiction
would be able to review the proposal and make suggestions. DHS titled
the deals Sanctuary for Americans First Enactment (SAFE) agreements.

According to the report, Ken Cuccinelli, the senior official performing
the duties of DHS deputy secretary
, signed
SAFE agreements with Arizona, Indiana and Louisiana, as well as the
Rockingham County Sheriff's Office in North Carolina. The
agreements state
 that
the jurisdictions will be entitled to "injunctive relief" if DHS does
not comply, and further notes that the agreements can only be terminated
with 180 days written notice.

According to an immigration law professor at Santa Clara University
School of Law, the agreements are "completely unmoored from legal,
constitutional ways of implementing policy," and appear to be designed
 to
allow jurisdictions to sue the incoming Biden administration over any
immigration policy changes that may be introduced. Under
well-established legal precedent
, the federal
government possesses "broad, undoubted power over the subject of
immigration."

****Census Bureau Halts Undocumented Immigrant Count, Ending Trump's
Bid to Exclude Undocumented Immigrants from Congressional
Apportionment****On January 12, the Census Bureau stopped work

on President Trump's directive to produce a state-by-state count of
undocumented immigrants. The bureau's move effectively ends the
administration's attempt to use census data to exclude undocumented
immigrants from Electoral College votes and congressional apportionment,
a count which determines the number of seats in the House of
Representatives for each state and would negatively impact states with
growing immigrant populations - blue states as well as red states
.

In July 2020, Trump had issued a memorandum directing

the Census Bureau to calculate and exclude undocumented immigrants from
the 2020 census apportionment count. Several federal courts ruled the
memorandum was unlawful
,
noting the U.S. Constitution requires all persons, regardless of
immigration status, to be included in the reapportionment count. The
U.S. Supreme Court declined to rule on the memorandum's legality,
determining the case was premature
.
Previously, in June 2019, The Supreme Court blocked

the Trump administration from including a citizenship question on the
Census.

The news that the Census Bureau would no longer work on the directive
came after an internal bureau watchdog disclosed that Trump-appointed
Census Bureau Director Steven Dillingham had placed "significant
pressure
"
on bureau employees to produce a count of undocumented immigrants by
January 15, a move which Inspector General Peggy Gustafson called

"statistically indefensible."

On January 11, a Department of Justice (DOJ) attorney informed

a federal judge that the 2020 Census results will not be available until
March 6, well after the change of administration. The incoming Biden
administration has condemned

President Trump's efforts to exclude undocumented immigrants from the
Census count, and it is unlikely

that Biden will move to resume the tally after inauguration.

****Trump Visits U.S.-Mexico Border and Touts Progress on Border Wall
Construction During His Administration ****On January 12, President
Trump visited
 Alamo,
Texas, to tout his administration's progress on the construction of
barriers along the U.S.-Mexico border. According to the Trump
administration, 452 miles of new barriers have been built along the
2,000-mile southern border.

The construction has continued despite ongoing legal challenges,
including a case now before

the U.S. Supreme Court questioning the legality of diverting military
funds for barrier construction. Construction of the U.S.-Mexico border
wall has cost an estimated
 $16.3
billion, approximately $10.5 billion of which has been diverted
 from
Department of Defense accounts, including funds allocated
 for
military pay and pensions and the construction of schools near U.S. army
bases.

President Trump's border speech was scheduled days after the violent
insurrection at the U.S. Capitol on January 6 and was Trump's last
public appearance prior to the House voting to impeach

him on January 13.

**GOVERNMENT REPORTS**

**Department of Homeland Security (DHS) Office of Inspector General
(OIG):****Review of the Department of Justice's Planning and
Implementation of Its Zero Tolerance Policy and Its Coordination with
the Departments of Homeland Security and Health and Human Services**

**; January 14, 2020**The report describes the results of an
investigation into the Department of Justice's (DOJ) zero-tolerance
border policy that resulted in the separation of over 3,000 migrant
children from their parents in 2018. The report describes the extensive
involvement of DOJ leadership, including then-attorney general Jeff
Sessions, as well as their knowledge of the potential consequences of
the policy before it was implemented. The report relied on 45 interviews
with government officials, as well as emails and other documents.

**SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES****Immigration
Priorities for a Biden Administration**
This
document lists the National Immigration Forum's immigration reform
priorities for the first 100 days of a Biden presidency. The priorities
all have strong bipartisan support and are based in the understanding
that America needs an immigration system that advances the interests of
all Americans.

**Rescinding the Travel Ban Will Improve National Security**
This
paper explores the harms of the travel and refugee bans enacted by the
Trump administration and makes the case for why removing them will be a
boon for national security efforts. Elizabeth Neumann, former DHS
Assistant Secretary for Counterterrorism and Threat Prevention during
the Trump Administration and senior advisor to the National Immigration
Forum on national security matters, authored the paper.

**Explainer: The Trump Administration's New Rules Restricting H-1B
Workers**
This
resource provides information about three recent Trump administration
rules impacting the H-1B nonimmigrant visa program for "specialty
occupations." The explainer describes the provisions and possible
impacts of the rules as well as the current state of play.

* * *

*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

 

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