MicEvHill.Com - Post-August Recess Immnigration and Refugee Legislative Outlook

The House and Senate Return from a Five Week-Long Recess for a Two Week-Long Runup to the November 2012 General Elections

By Micheal E. Hill
Friday, September 7, 2012 -- 12:00 Noon EDT

The House and Senate are set to return to Washington on Monday, September 10, from their five week-long August Recesses with the Republican and Democratic nominating conventions behind them and their eyes focused on the October 1, beginning of fiscal year 2013.

Upon their return to Washington the House and Senate are only expected to be in session for eight days legislative days before recessing for the runup to the November 6, general election.

The relatively few number of legislative days that are left before the election and the increasingly political nature of everything that is occurring in Washington will make for a light immigration- and refugee-related legislative schedule when Congress return in September.

From an immigration and refugee perspective, there are four categories of measures that could see action on Capitol Hill between now and Election Day:

First are items that Congress absolutely must act on in order to prevent a shutdown of vital executive branch functions. This category includes such items as funding for the Department of Homeland Security, Department of State, Department of Justice, and Department of Health and Human Services.

Second are items that Congress may feel compelled to act on because of expiring (or expired) provisions of the Immigration and Nationality Act. This category includes such expiring programs and authorities as the E-Verify System, the EB-5 Regional Centers Program, the Conrad 30 Visa Waiver Program, and the Special Immigrant Non-minister Religious Worker Visa Program.

Third are items that Members or Senators feel compelled to act out of principal or political necessity. This category includes such authorities as those found in the expired and expiring provisions of the Trafficking Victims Protection Act (TVPA) and the Violence Against Women Act (VAWA).

Fourth are relatively easy items that don't require the exercise of much political capital. This category includes such matters as legislation to clamp down on fraud in the issuance of student visas.

Any action that Congress takes on immigration- or refugee-related matters during the remainder of the 112th Congress will occur in two bursts. The first burst will occur over the next two weeks before Congress departs Washington for the runup to the 2012 general election. The second will occur during a "lame duck" post-election session beginning a couple of weeks after the November 6 election and possibly continuing right up to and beyond Christmas Day.

Items that Congress Must Complete Action On

Stop-Gap FY '13 Funding for the Federal Government's Immigration and Refugee Functions. As has become the custom over the last decade, Congress is not expected to complete action on any of the four regular fiscal year 2013 appropriations bills that fund the federal government's border security-, interior immigration enforcement-, immigration services-, refugee admissions-, refugee assistance-, and refugee-resettlement-related functions before the new fiscal year begins on October 1, 2012. Instead, the House and Senate Republican and Democratic Leadership have reached an agreement-in-principal to continue funding for these and all other federal functions for the first six months of fiscal year 2013 at roughly the same level of funding that they have been operating under during fiscal year 2012. The agreement, the details of which could be filled in and voted on as soon as the week of September 10, would continue funding past the November elections and three months into calendar year 2013, when a new Congress (and potentially a new president of the United States) will have been sworn-in.

With respect to funding for the federal government's immigration-, border security-, and refugee-related functions, two big questions are unanawered about the approach that Congress is poised to take. First is whether the continuing appropriations resolution that Congress is about to pass will provide for slight increases in funding for those functions, slight increases in funding, or funding at roughly the fiscal year 2012 level. And second is what will happen to the directives contained in the bills that Congress has worked on throughout 2012. Will the new Congress use them as the starting points for negotiations in 2013 on the full-year fiscal year 2013 spending bills? Will the agencies and departments honor directives in the uncompleted committee reports from earlier this year? Will the final fiscal year 2013 bill that is produced in September provide a bump up in funding for some functions and programs and a decrease in funding for others?

FY '13 Refugee Admissions Consultation and Presidential Determination. At some point prior to October 1, 2012, Secretary Clinton is required to meet with the leadership of the House and Senate Judiciary Committees to discuss refugee admissions for fiscal year 2013 and President Obama is required to issue a "presidential determination" on refugee admissions for the coming fiscal year.

The refugee admissions process starts each year with a consultation that takes place between the Administration and Congress on the number and nature of refugees who will be admitted to the United States in the coming fiscal year. This “consultation process,” which is governed by Section 207 of the Immigration and Nationality Act, requires that “[b]efore the start of each fiscal year the President shall report to the Committee on the Judiciary of the House of Representatives and of the Senate regarding the foreseeable number of refugees who will be in need of resettlement during the fiscal year and the anticipated allocation of refugee admissions during the fiscal year.” It ultimately leads to a “Presidential Determination” on the number of refugees who are to be admitted to the United States in the coming fiscal year. This “Presidential Determination” must be released prior to admitting any refugees into the United States.

The law requires “discussions in person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with a number of piieces of information.

The law requires the Administration, to the greatest extent possible, to provide the above information at least two weeks in advance of the consultation discussion. After the President initiates the consultation (and prior to the Presidential Determination on refugee admissions for the coming fiscal year), the House and Senate Judiciary Committees are supposed to publish the consultation information in the Congressional Record.

Items Reauthorizing Expired or Expiring Immigration or Refugee Programs and Authorizations

Four Expiring Immigration Programs. Four immigration programs are set to expire on September 30, 2012, unless Congress acts to extend them. They are the E-Verify System, the EB-5 Investor Visa Regional Centers Program, the Conrad 30 J1 Visa Waiver Program, and the Special Immigrant Nonminister Religious Worker Visa program. The Senate has passed S. 3245, legislation sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senate Judiciary Committee Ranking Minority Member Charles Grassley (R-IA), that would extend the four programs for three years.

One of the big items left for the House of Representatives once it returns from the August recess is a decision by the House Republican Leadership and House Judiciary Committee Chairman Lamar Smith on whether to take up S. 3245 and clear the bill for the President's consideration during the eight days prior to the beginning of fiscal year 2013 that the House will be in session.

The House has included a one-year extension of the E-Verify System in H.R. 5855, its version of the Fiscal year 2013 Homeland Security Appropriations Act, which the House of Representatives passed on Thursday, June 7, 2012, by a vote of 234-182. The Senate Committee on Appropriations has included a three year-long extension of all four programs in S. 3126, its version of the Fiscal year 2013 Homeland Security Appropriations Act.

Immigration Provisions of Violence Against Women Act. While the process has become mired in ideological differences and political posturing, pro-immigrant advocates and advocates for women who are the victims of domestic violence are hoping that the House and Senate will settle on a process for resolving differences between the House-passed and Senate-passed versions of Violence Against Women Act reauthorization legislation before authorization for funding for the programs expires at the end of September. The U.S. Senate passed S. 1925, the "Violence Against Women Reauthorization Act of 2011", on April 26, 2012, by a vote of 68-31. The House passed H.R. 4970, the “Violence Against Women Act Reauthorization Act of 2012”, on May 16, 2012, doing so by a vote of 222-205.

The Senate-passed version of the bill has a number of provisions supported by the pro-immigrant advocacy community, including a provision that would expand the number of "U" visas that alien domestic violence victims may petition for, exempt "T" and "U" Visa recipients from public charge grounds of inadmissibility, and permit a derivative beneficiary of a deceased alien who was a VAWA self-petitioner to be considered for immigration relief, notwithstanding the parent’s death. It also includes a provision, opposed by the pro-immigrant advocacy community, that retroactively wold make a third conviction for drving under the influence an aggravated felony. The House-passed bill contains numerous provisions opposed by the pro-immigrant advocacy community, a number of which would rollback protections in current law for aliens who are the victims of domestic violence.

At the time of this writing, no formal negotiations had yet begun on resolving the differences between the two bills. One of the big obstacles to settling the differences between the two chambers’ bills is a provision in the Senate-passed version of the measure that, for the first time ever, would impose a fee on diversity visa petitioners. The Senate included the diversity visa provision in its bill in order to pay for another provision in their bill that would increase the number of “U” visa petitions that may be issued each year. The House Republican Leadership contends that the U.S. Constitution forbids the Senate from initiating legislation that raises revenue. It is insisting that the diversity visa fee in the Senate bill be dropped before any negotiations on the larger bill can begin. Some insiders believe, however, that the House Republican Leadership is merely using the existence of the diversity visa fee provision as an excuse to force the Senate to drop the “U” visa expansion provision from its bill before any negotiations begin, thus, increasing the House’s leverage in the negotiations that will ensue over the remaining immigration provisions.

Authorization for funding of programs of the Violence Against Women Act is set to expire on September 30, 2012. It is seen as highly unlikely that Congress will fail to appropriate funds for those programs in the absence of the enactment of reauthorization legislation.

Immigration Provisions of the Trafficking Victims Protection Reauthorization Act. The Senate Committee the Judiciary and House Committee on the Foreign Affairs have produced differing versions of legislation that would reauthorize funding for programs under the Trafficking Victim Protection Act. The Senate bill is S. 1301, the "Trafficking Victims Protection Reauthorization Act of 2011", which the Senate Committee on the Judiciary approved on October 13, 2011, and which it formally reported to the full Senate on November 17, 2011. The House bill is H.R. 2830, the "Trafficking Victims Protection Reauthorization Act of 2011", which the Senate Committee on Foreign Relations approved on October 5, 2011, but which the Committee has not formally reported to the full House of Representatives.

Both the Senate Judiciary Committee-reported and House Foreign Affairs Committee-approved versions of the bill contain a number of immigration-related provisions. However, complications have prevented the bills from proceeding further in the legislative process. The outlook for the measures moving during the remainder of the 112th Congress is cloudy.

Authorization for funding of programs of the Trafficking Victims Protection Act is set to expire on September 30, 2012. However, it is unlikely that Congress will fail to appropriate funds for those programs in the absence of the enactment of reauthorization legislation.

Bill Reviving and Revising the Expired H-1C Nonimmigrant Nurses Program. The House of Representatives has passed H.R. 1933, a measure introduced by House Judiciary Committee Chairman Lamar Smith (R-TX) that would revive and revise the expired H-1C nonimmigrant nurses program. As passed by the House, the measure would amend the Immigration and Nationality Act with respect to the admission of nonimmigrant nurses (H-1C visa) in health professional shortage areas to: (1) permit a one-time three-year extension of admission, and (2) reduce the maximum number of such visas per fiscal year to 300. The measure would authorize such nonimmigrant alien to accept new employment as a registered nurse at any facility which qualifies for the H-1C program upon a prospective employer's filing of a new petition. It would continue employment authorization until adjudication of a new petition. Terminates such authorization if a petition is denied. And it would require such nonimmigrant alien: (1) to have been lawfully admitted to the United States; (2) to have not been employed without authorization since admission; and (3) to have had a prospective employer file a petition for new employment before the date of expiration of the authorized period of stay, except that if the alien is terminated or laid off by his or her employer such new employment petition shall be filed during the ensuing 45-day period. The measure is pending in the Senate Committee on the Judiciary.

Other Immigration and Refugee Meaures Pending in Congress

Student Visa Fraud Bill. The House of Representatives has passed H.R. 3120, the "Student Visa Reform Act". Introduced by House Judiciary Subcommittee on Immigration Policy and Enforcement Ranking Minority Member Zoe Lofgren (D-CA), the measure would amend the Immigration and Nationality Act to require that a person coming to study at a college, university, or language training program in the United States under a nonimmigrant student F-visa must attend an institution that is accredited by an accrediting agency recognized by the Secretary of Education; provide a three-year exemption for students coming to study at a college or university that has been certified by the Secretary of Homeland Security (DHS) but not yet accredited by an accrediting agency; and authorize, under specified circumstances, the Secretary to require elementary and secondary schools (exempts religious institutions) to be similarly accredited for F-visa purposes. The measure is pending in the Senate.

Bill Revising Annual Per-Country Limits for Employment- and Family-Based Immigrant Visas. The House of Representatives has passed H.R. 3012, the "Fairness for High-Skilled Immigrants Act of 2011. As passed by the House of Representatives, the measure would eliminate the annual per-country limitations for employment-based immigrants, and it would increase the annual per-country limitations for family-based immigant visas from 7.5 percent of the total number of available visas to 15 percent of the total number of available visas. The House of Representatives passed H.R. 3012 on November 18, 2011, by a vote of 389-15. The measure is pending in the Senate, where it has become mired in immigration politics, with some wanting to make revisions to the text of the House bill and others wanting to add extraneous immigration measures to it.
Bills Providing for Increased Visa Access for High-Skilled Graduates at U.S. Universities. Numerous bills have been introduced in the House and Senate that would provide increases in the number of visas and an easing of the process of approving visas for science, technology, engineering, or mathematics (STEM) workers and graduates. In addition, House Judiciary Committee Chairman Lamar Smith (R-TX) has been attempting to negotiate a bipartisan bill with Senate Judiciary Committee leadership that could bypass committee consideration and be taken directly to the House floor. Generally, the idea of increasing foreign STEM graduates' access to visas has broad, bipartisan support. However, up to now, bills to increase STEM visas have been caught up in the politics of immigration, where pro-family immigration Members and Senators want changes in family-based immigration law to be included in any immigration-related bill that Congress passes and many immigration-restrictionist Members and Senators oppose any increases in immigrant or nonimmigrant visas.

Bill Increasing Visas Available to the Irish. Senator Scott Brown (R-MA) has introduced S. 2005, the Irish Immigration Recognition and Encouragement Act of 2011 or IRE Act, which would amend the Immigration and Nationality Act to include nationals of Ireland coming to the United States under a treaty of commerce to perform specialty occupation services in the nonimmigrant E-3 visa category. The measure is pending in the Senate, where it has become mired in immigration politics, where pro-family immigration Members and Senators want changes in family-based immigration law to be included in any immigration-related bill that Congress passes, pro-business Senators and Members wanting to include pro-employment-based immigration provisions included in any measure, and many immigration-restrictionist Members and Senators oppose any increases in immigrant or nonimmigrant visas.

Haitian Progress Act. The House of Representatives has passed The full Senate could at any time take up H.R. 1016, the "Assessing Haitian Progress Act", which would make a number of findings with regard to the situation in Haiti and direct the President to report to Congress regarding the status of post-earthquake humanitarian, reconstruction, and development efforts in Haiti, including efforts to prevent the spread of cholera and treat persons infected with the disease, and an assessment of the ability of Haiti to absorb deportees from the United States. The House of Representatives passed H.R. 1016 on Tuesday, May 10, 2011, by a voice vote. It was approved by the Senate Committee on Foreign Relations on April 26, 2012. At the time of this writing, there was no word on if and when the full Senate will take up the measure.

Mandatory E-Verify Bill. The House Committee on the Judiciary has approved H.R. 2885, the "Legal Workforce Act", which would mandate that virtually all employers in the United States use an electronic employment verification system (EEVS) to verify the employment eligibility of their newhires, as well as require many employers to use the system to verify the employment eligibility of existing employees. The House Committee on the Judiciary approved H.R. 2885 on September 21, 2011, however, at the time of this writing, the Committee still had not yet filed a formal, written report on the measure. Moreover, the bill was referred to several other committees, none of which have acted on it.

Full House Could Take Up Vietnam Human Rights Act. The House Committee on Foreign Affairs has approved H.R. 1410, the "Vietnam Human Rights Act of 2011", a measure that would prohibit U.S. nonhumanitarian assistance to the government of Vietnam in excess of FY2011 amounts unless: (1) the federal government provides assistance, in addition to democracy building assistance under this Act, supporting human rights training, civil society building, and exchange programs between the Vietnamese National Assembly and Congress at levels commensurate with or exceeding any increases in nonhumanitarian assistance to Vietnam; and (2) the President certifies to Congress that the government of Vietnam has made substantial progress respecting political, media, and religious freedoms, minority rights, access to U.S. refugee programs, and actions to end trafficking in persons and the release of political prisoners. With specific regard to refugees, the introduced version of the measure would have declare "it is U.S. policy to offer refugee resettlement to Vietnam nationals (including members of the Montagnard ethnic minority groups) who were eligible for the Humanitarian Resettlement program, the Orderly Departure program, the Resettlement Opportunities for Vietnamese Returnees program, the Amerasian Homecoming Act of 1988, or any other U.S. refugee program, but who were deemed ineligible for reasons of administrative error or who failed to apply because of circumstances beyond their control." However, that provision was stripped from the bill during the House Committee on Foreign Affairs markup of the measure. The House Committee on Foreign Affairs approved H.R. 1410 on Wednesday, March 7, 2012. However, at the time of this writing, the Committee had not yet formally reported the measure to the full House of Representatives.

Bill to Eliminate the Diversity Visa Program. The full House of Representatives could at any time take up H.R. 704, the "SAFE for America Act", legislation introduced by Representative Bob Goodlatte (R-VA) that would eliminate the diversity visa program. The House Committee on the Judiciary approved the measure on July 20, 2011. It was formally reported to the full House of Representatives on November 10, 2011. No floor action on H.R. 704 had yet been scheduled at the time of this writing.

Bill to Make it Easier for Prosecutors to Convict Illegal Immigrants of Felony Identify Theft. The full Committee on the Judiciary has approved H.R. 2552, the "Identify Theft Improvement Act of 2011", legislation introduced by Representative Bob Goodlatte (R-VA) providing that when a person is charged with identity theft under Section 1028(a)(7) or 1028A(a) of Title 18 of the U.S. Code, prosecutors would not need to show that the person charged knew that the identity documents were those of another actual person in order to win a felony conviction. The Committee approved the measure by a vote of 16-10 on Wednesday, July 20, 2011, after taking up three amendments that were offered to it, rejecting all three of them. The bill was formally reported to the full House of Representatives on September 8, 2011. No floor action on H.R. 2552 had yet been scheduled at the time of this writing.

Bill Providing for the Indefinite Detention of "Dangerous" Aliens. The House Committee on the Judiciary has approved H.R. 1932, the "Keep Our Communities Safe Act of 2001", a measure introduced by House Judiciary Committee Chairman Lamar Smith (R-TX) that would provide for the indefinite detention of "dangerous aliens". The House Committee on the Judiciary approved the measure on Thursday, July 13, 2011. It was formally reported to the full House of Representatives on October 18, 2011. No House floor action on H.R. 1932 had yet been scheduled at the time of this writing.

Visa Security Bill. The House Committee on the Judiciary has approved H.R. 1741, the "Secure Visas Act", a measure introduced by House Judiciary Committee Chairman Lamar Smith (R-TX) that would make it easier for the Departments of State and Homeland Security to deny ad revoke visas. The House Committee on the Judiciary approved the measure on Thursday, June 23, 2011. It was formally reported to the full House of Representatives on March 8, 2012. No House floor action on H.R. 1741 had yet been scheduled at the time of this writing.