Legislative Updates & Proposals
Below we review the main immigration effects of four recent legislative updates and proposals:
- HEROES Act
- Presidential Proclamation Suspending Immigration
- Healthcare Worker Resiliency Act
- Senators’ Letter to White House on Immigration Restrictions
On Friday, May 15 the U.S. House of Representatives passed the HEROES Act, the latest bill to address the COVID pandemic recovery. Several portions of the bill may affect immigration if it proceeds:
Extension of Filing & Other Deadlines
COVID-related travel restrictions and processing delays have left many individuals with expiring statuses or travel documentation. The bill proposes to shield lawfully present noncitizens from the negative immigration consequences due to their inability o meet filing deadlines or leave the country. It would also grant automatic extensions in status and work authorization during the length of the national emergency. Immigrant visas that have been issued would be expired beyond their expiration dates. The bill also calls for an extension in voluntary departure deadlines. Another interesting proposal was the mechanism for unused immigrant visa numbers to be rolled over for use in subsequent years, since it is likely that immigration will drop in 2020 due to the COVID disruptions. In a related note, USCIS announced that it would face a funding shortfall this year unless fee surcharges are implemented, or additional funding is provided by Congress.
Naturalization Oath Ceremony Flexibility
The bill called upon the Department of Homeland Security to develop a structure for remote administration of naturalization oath ceremonies. DHS would be required to provide written notice to any eligible candidate and to ensure expeditious oath ceremonies. Delaying of citizenship for individuals could have additional implications as we quickly approach the November elections. Only U.S. citizens can vote in federal elections.
Protection for Essential Critical Infrastructure Workers
The House bill provides some temporary protections for undocumented workers who are in essential critical infrastructure positions by allowing work authorization and deferred action against deportation. Employers would also be shielded from certain immigration-related violations for employment of these workers.
Supplementing the COVID Response Workforce
Certain workers stuck in the visa backlogs would be allowed to immediately apply for green cards if engaging in COVID-19 work. The bill would also expedite nonimmigrant petitions and applications for medical professionals and researchers involved in COVID-19 work and would allow employers to more easily transfer employees to COVID-19 hotspots to address the national emergency. The bill also proposes to permanently authorize the Conrad 30 Waiver Program to assist with getting doctors to medically underserved areas.
To assist with safety in the ICE detention centers, the bill proposes that Immigration and Customs Enforcement evaluate the need for continued detention and prioritize non-mandatory detention for release on recognizance or to an alternative to detention program (such as ankle-bracelet monitoring). The bill also calls on ICE to ensure detainees have access with basic hygiene products, legal educational information, and secure methods of communication with their attorneys by phone, video, fax, email, etc.
What’s next for the HEROES Act?
The bill is expected to meet opposition in the Senate due to some of the partisan provisions. Several Republican Senators have called it “dead on arrival” and a “non-starter” and confirmed that the bill would likely not be addressed until after the Memorial Day recess. The tentative legislative schedule states that Congress will not be in session from May 25 to May 29, 2020.
Presidential Proclamation Update
On April 22, 2020, the President signed the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The order suspended entry for individuals receiving green cards during the 60-day effective period of the order, with a few exceptions. You can read our previous article about the proclamation here.
We are quickly approaching the 30 day deadline for the review provision that directed the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State to “review nonimmigrant programs and shall recommend… other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
Since the original proclamation, we have seen some indications of the direction the administration seems to be focusing their efforts. In an interview with Fox News, Acting DHS Secretary Chad Wolf states that some OPT programs have been abused in the past and that the department will “have a series of recommendations that we’ll be teeing up and some of those could include students on what we call OPT and CPT.” He was responding to a question about recent comments from Senator Tom Cotton, who called for Chinese students to be banned from studying technical fields in America because they take that information back to China. There is also some speculation that new regulations could be implemented to retaliate against China for the ongoing coronavirus outbreak.
We could see restrictions on other nonimmigrant work-authorized categories, such as the H-1B and H-2B. A new order may suspend entry of these categories from outside the country or could impose new conditions on their entries.
Healthcare Worker Resiliency Act
A bipartisan group of senators proposed the Healthcare Worker Resiliency Act as a temporary stopgap to meet the demand for health care workers. The bill cites that there are doctors currently working in the U.S. who are stuck in the green card backlog. Over 25% of the nation’s doctors were born outside of the U.S. The senators have proposed a process to recapture visas that weren’t used over the past 28 years. If the annual quota was not met, those visas have previously been “lost” or never issued. The bill would allow those visas to be distributed to doctors and nurses whose immigrant petitions were filed within 90 days of the end of the national emergency declaration. The text specifically allocates 25,000 visas to nurses, 15,000 for physicians, and designates a separate pool of reclaimed visas for recipient families. Doctors and nurses would also be exempted from the annual visa caps for applicable categories.
Republican Senators Send Letter Urging Immigration Restrictions to White House
Senators Tom Cotton, Ted Cruz, Charles Grassley and Josh Hawley have urged President Trump to suspend all guest worker visas for 60 days, with only limited exceptions for time-sensitive industries like agriculture or on a case-by-case basis when Americans can’t be found to take jobs.
The letter requests the suspension of work visas including H-1Bs, H-2Bs, and the F-1 OPT program for at least the next year or until “unemployment has returned to normal levels.” The senators request that new H-1B visas are temporarily limited, claiming it would protect current H-1B workers who are already in the U.S. They also propose an exception for doctors, nurses, and healthcare professionals who are battling coronavirus.
The proposal does not address most employment-based immigrant visa categories, except for the call to immediately suspend the EB-5 immigrant investor program. The letter claims that the program is plagued by scandal and fraud and they call it a “pay for citizenship scheme.” Despite the boost to the U.S. economy due to the foreign investment and job creation mechanisms, the senators stated that there is no reason for “preferential treatment as opposed to other green card programs for employment-based immigrants.”
The letter ends with the following statement: “As we work toward recovery, we urge you to keep the American worker in mind and limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”