By Micheal E. Hill
October 8, 2009  -  9:20 am EDT

House and Senate conferees yesterday reached agreement on how to resolve the differing provisions in the House-passed and Senate-passed versions of the fiscal year 2010 Homeland Security Appropriations bill, stripping from it almost all of the controversial immigration policy provisions that were contained in the Senate-passed version of the bill.  Conferees approved the inclusion of a three year-long extension of the E-Verify Program in the measure, and they approved the inclusion of three year extensions of three expiring immigration visa programs.  Yesterday's conference committee action readies the measure for consideration by the full House and Senate.  However, the path by which those next steps occur may prove to be complicated.

The text of the conference agreement was not available at the time of this writing.  However, sources close to the conferees and a summary of the conference agreement indicate that the agreement strips out all of the immigration enforcement policy provisions that the Senate adopted during its consideration of the Homeland Security Appropriations Bill.  At the same time, reports indicate that the compromise bill would extend for three years three popular visa programs that are set to expire at the end of the month: the EB-5 Investor Visas Regional Center program, the Special Immigrant Non-Minister Religious Worker Visa program, and the Conrad 30 State J-1 Visa program.  The conference agreement also would extend the controversial E-Verify program for three years.

In addition to reaching agreement on the immigration enforcement and visa provisions that were in the Senate-passed version of the Homeland Security Appropriations bill, the conferees also agreed to restrict the immigration rights of Guantanamo detainees, providing that such individuals will be ineligible for any immigration benefits and may only be brought to the United States for the purposes of trying them in U.S. courts.

The Homeland Security Appropriations Bill funds the immigration  enforcement,  immigration services, and border security departments, agencies, programs, activities, and functions of federal government.  The conference agreement contains numerous provisions funding those activities.  The House and Senate passed different versions of the measure over the summer, and those versions contained significant differences on immigration policy provisions, including differences on the E-Verify System, SSA No-Match letters, border fencing, the 287(g) program, and visa programs for investors, religious worker and doctors.


Background
Each year, the Homeland Security Appropriations Act funds the federal government's immigration enforcement,  immigration services, and border security departments, agencies, programs, activities, and functions.  The measure is supposed to be enacted into law each year by the first day of October, which is the first day of the fiscal year.  However, Congress was unable to enact the measure this year by October first. 

The inability of Congress to enact the Fiscal Year 2010 Homeland Security Appropriations Act by the first of October this year has made it necessary for Congress to temporarily fold spending for the Department into a stop-gap funding measure, which continues the department's funding through October 31, 2009.  Should Congress adopt the conference agreement and President Obama sign the bill into law, the Congress that measure would supersede the provisions in the continuing appropriations resolution.


Resolution of Key Immigration-Related Policy Differences
There were enormous differences between the House- and Senate-passed bills on immigration policy matters.  These included differences on-- 

• The E-Verify System.  The Senate-passed bill sought to extend permanently, require that all federal contractors participate, and permit employers to use the system to verify the immigration status of existing employees; not just new-hires.  The House-passed bill would have extended the program for two years.  But it did not contain any of the policy provisions. 

• SSA No-Match Letters.  The Senate-passed bill would have provided that none of the amounts made available under the Act could be used to implement changes to a Bush era rule describing the process for employers to follow after receiving a ‘‘no match’’ letter in order to qualify for ‘‘safe harbor, which the Senate-passed bill.  The House-passed bill did not contain comparable language.  The conferees rejected the Senate language.

• Border Fencing.  The Senate-passed bill would have imposed a number of restrictions and mandates on the Administration with regard to fencing being constructed along the U.S. border with Mexico.   The House-passed bill contained no such provisions.

• Investor Visa Regional Centers.  The Senate-passed bill would have extended for three years the EB-5 Investor Visa Regional Centers program.   The House-passed bill contained no such provision.

• Relief for Widows and Orphans of U.S. Citizens and Permanent Residents.  The Senate-passed bill would have protected widows, widowers and orphans of deceased U.S. citizens and legal permanent residents who are in the family immigration system by allowing widows, widowers and orphans, to immigrate on a family-based visa despite the death of a petitioner.   The House-passed bill contained no such provisions.

Resolution of Key Immigration-Related Funding Differences
There were a number of significant differences in the level of funding in the House- and Senate-passed bills for various immigration- and refugee-related bureaus and programs within the Department.  The most prominent difference was found in the area of appropriations for U.S. Citizenship and Immigration Services (USCIS). 

The House-passed bill would have appropriated $2.8 BILLION for USCIS, including $298 MILLION in directly appropriated funds.  However, the Senate-passed bill would have appropriated $2.639 BILLION for USCIS, including only $135.7 MILLION in directly appropriated funds.

The conferees agreed to include $2.726 BILLION for USCIS, including $224 MILLION in directly appropriated funding for USCIS.

Within the appropriation for USCIS--

• Refugee and Asylum Adjudications.  The conferees dramatically cut the Administration's request for funding for refugee and asylum adjudications.  The Administration had asked for $206 MILLION for that purpose.  The House-passed bill would have appropriated $100 MILLION for those adjudications.  The Senate-passed bill would have appropriated no funds.  The conferees agreed to appropriate $50 MILLION.

• Immigrant Integration.  The conferees agreed to appropriate $11 MILLION "to expand immigrant integration and outreach efforts that promote legal paths to US citizenship."

• Funding for E-Verify.  The conferees agreed to appropriate $137 MILLION to operate the E-Verify System "and further improve its accuracy and compliance rates."

Next Steps
Yesterday's conference committee action readies the Fiscal Year 2010 Homeland Security Appropriations Act for consideration by the full House and Senate.  However, the path by which those next steps occur may prove to be complicated.

There is much controversy in the House of Representatives over the issue of whether Guantanamo detainees should be permitted into the United States for trial.  This controversy complicates the outlook for moving the conference agreement through the House and Senate.  Nearly 90 House Democrats voted in favor of a motion to instruct the conferees on the bill to bar bringing Guantanamo detainees into the United States for that or any other purpose.  Many of the Democrats who voted in favor of the motion represent moderate-to-conservative congressional districts.  The House Democratic Leadership is concerned that it may not be able to win the votes a number of these Democrats if House Republicans seek to send the conference agreement on the Homeland Security funding bill back to the conference committee to resolve that issue in their favor.

House and Senate Democratic Leaders have three options for how to move the conference agreement.  They can bring the agreement before the Senate first and then hope that the specter of a shut-off of the Department of Homeland Security convinces a sufficient number of Members to vote for the agreement.  Or they could attach the conference agreement to another measure, thereby precluding House Republicans from offering a motion to recommit the conference agreement to the conference committee, an action that would effectively kill it.

There was no word at the time of this writing how House and Senate Democratic leaders intend to proceed.