MicEvHill.Com - The Week Ahead

The House and Senate Begin a Week-Long Recess but a Substantial and Uncertain Immigration- and Refugee-Related Legislative Agenda Awaits their Return in July, and Beyond

By Micheal E. Hill

Monday, July 2, 2012 -- 8:00 am EDT

--Original Version Posted on Friday, June 29, 2012, at 5:12 pm EDT--

The House and Senate have begun their week-long Independence Day Recesses.

Upon their return to Washington on Monday, July 9, 2012, the House and Senate will remain in session through the close of business on Friday, August 3, 2012, at which time they will begin a five week-long August recess -- a recess that will include time away from Washington for the 2012 Republican and 2012 Democratic National Conventions.

The House is scheduled to return from its August recess on Monday, September 10, for what is expected to be 13 days of legislative session before breaking for a five-week long recess running up to the 2012 general election.

While the Senate's long-term schedule is still subject to change, it is scheduled to return from its August recess on Monday, September 10, as well. However, unlike the House, the Senate (for now) is scheduled upon its return in September to remain in legislative session right up to Election Day.

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 makes for a crowded, yet uncertain legislative schedule.

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.

The following lists some of the major immigration- and refugee-related matters that Congress likely will face once it returns from its Independence Day recess:

Items that Congress Must Complete Action On

FY '13 Funding for the Department of Homeland Security. The full Senate could at any time take up S. 3126, its version of the Fiscal year 2013 Homeland Security Appropriations Act. The Senate Committee on Appropriations approved the measure on Tuesday, May 22, 2012, ordering that it be reported to the full Senate. The Senate Appropriations Committee-reported version of the measure would increase funding for alternatives to detention, increase funding for detention beds, set a lower floor for the number of detention beds that ICE must maintain each day, force the admission of Poland into the Visa Waiver Program, and directly appropriate $5 MILLION for immigrant integration grants while providing for an additional $5 MILLION for such grants from the Examinations Fee Account. Additionally, the measure would extend through September 30, 2015, the authority for four programs whose authority is set to expire on September 30, 2012: the E-Verify System, the EB-5 Regional Centers Program, the Conrad 30 J1 Visa Waiver Program, and the Special Immigrant Nonminister Religious Worker Visa program.

The House of Representatives passed H.R. 5855, its version of the Fiscal year 2013 Homeland Security Appropriations Act, on Thursday, June 7, 2012, by a vote of 234-182. Senate floor consideation of S. 3126 is not likely to occur before the Senate returns from its July 4 recess in early July. The House-passed measure would reauthorize the E-Verify System for one year, through September 30, 2012. In addition, it contains a number of controversial immigration provisions that were made part of the bill during House floor consideration of the measure. These include provisions that would prohibit the use of prosecutorial discretion for aliens in immigation proceedings; prohibit the use of funds in the bill to enforce a proposed rule providing for a provisional unlawful presence waiver to an alien who is an immediate family member of a United States citizen and who is unlawfully in the United States; bar the use of funds for the Immigration and Customs Enforcement's Public Advocate position; bar funding under the bill for sanctuary cities; bar the use of funds for alternatives to detention for aliens who have committed crimes specified in Section 236(c) of the Immigration and Nationality Act; prohibit the use of funds to enforce a Clinton-era Limited English Proficiency Executive Order; and bar the use of funds in the bill to terminate standing 287(g) agreements.

Each year, the Homeland Security Appropriations Act funds the federal government's border security, interior immigration enforcement, and immigration services adjudication functions. Congress must complete action on a funding measure for the Department before October 1, 2012, or the Department will be unable to conduct most of its operations. If, as expected, Congress has not completed action on the FY '13 DHS Appropriations Bill by October 1, it is expected that temporary funding for the Department will be folded into a temporary stop-gap funding measure lasting until just after the November elections. It is uncertain at the time of this writing, however, whether such a stop-gap bill also would include temporary extensions of the four programs that are expiring on September 30, 2012.

FY '13 Funding for the Executive Office for Immigration Review (EOIR). The full Senate could at any time take up S. 2323, the Senate version of the Fiscal Year 2013 Commerce, Justice, Science, and Related Agencies Appropriations Bill. The Senate Committee on Appropriations approved the measure on Thursday, April 19, 2012, ordering that it be reported to the full Senate.

The House of Representatives passed H.R. 5326, its version of the Fiscal Year 2013 Commerce, Justice, Science, and Related Agencies Appropriations Bill, on May 10, 2012, by a vote of 247-163. The House-passed measure contains a number of controversial immigration provisions, including provisions that would bar the Department of Justice from challenging the validity of state-enacted immigration enforcement laws and bar "sanctuary cities" from receiving funds from a popular immigration enforcement program.

Each year, the Commerce, Justice, Science, and Related Agencies Appropriations Act funds the federal government's immigration court system, including EOIR. Congress must complete action on a funding measure for the Departments of Commerce and Justice before October 1, 2012, or the departments will be unable to conduct most of their operations. If, as expected, Congress has not completed action on the FY '13 CJS Appropriations Bill by October 1, it is expected that temporary funding for the Departments will be folded into a temporary stop-gap funding measure lasting until just after the November elections.

FY '13 Funding for Refugee Admissions and Overseas Refugee Assistance. The full House of Representatives could at any time take up H.R. 5857, its version of the Fiscal year 2013 State, Foreign Operations, and Related Programs Appropriations Act. The House Committee on Appropriations approved the measure on Thursday, May 17, 2012, ordering that it be reported to the full House of Representatives.

In addition, the full Senate could at any time take up S. 3241, the Senate version of the measure. The Senate Committee on Appropriations approved its version of the bill on Thursday, May 24, 2012, ordering that it be reported to the full Senate. The Senate Appropriations Committee-approved measure contains significant increases in funding for the MRA account and the IDA account relative to the fiscal year 2012 and to the Administration's fiscal year 2013 budget.

Each year, the State, Foreign Operations, and Related Programs Appropriations Bill funds the Department of State's Bureau of Population, Refugees, and Migration (PRM), which administers the refugee admissions amd overseas refugee assistance programs in the Department's Migration and Refugee Assistance (MRA) account, as well as the Emergency Refugees and Migration Assistance (ERMA) account. In addition, each year the measure funds the U.S. Agency for International Development's (USAID) International Disaster Assistance (IDA) account, which provides assistance to refugees and internally displaced persons (IDPs). Congress must complete action on a funding measure for the Departments of State and Foreign Operations before October 1, 2012, or the Department will be unable to conduct most of its operations. If, as expected, Congress has not completed action on the FY '13 State, Foreign Operations Appropriations Bill by October 1, it is expected that temporary funding for the Department's operations will be folded into a temporary stop-gap funding measure lasting until just after the November elections.

FY '13 Funding for Refugee Resettlement and the Care of Unaccompanied Alien Children. The full Senate could at any time take up S. 3295, its version of the Fiscal Year 2013 Labor, Health and Human Services, Education, and Related Agencies Appropriations Bill. The Senate Committee on Appropriations approved the measure on Thursday, June 14, 2012, ordering that it be reported to the full Senate.

At the time of this writing, no markup of the House version of the measure had yet been scheduled in the House Committee on Appropriations.

Each year, the Labor, Health and Human Services, Education, and Related Agencies Appropriations Act funds the operations of the Department of Health and Human Service's Office of Refugee Resettlement (ORR), which administers the federal government's refugee resettlement, trafficking victim assistance, torture victim assistance, and unaccompanied alien child programs and functions. If, as expected, Congress has not completed action on the FY '13 Labor, HHS, Education, and Related Agencies Appropriations Act by October 1, it is expected that temporary funding for the departments' operations will be folded into a temporary stop-gap funding measure lasting until just after the November elections.

Items Reauthorizing Expired or Expiring Immigration or Refugee Programs and Authorizations

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 Regional Centers Program, the Conrad 30 J1 Visa Waiver Program, and the Special Immigrant Nonminister Religious Worker Visa program. 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. However, it is unclear whether the Senate will take up the measure prior to the end of fiscal year 2012. In addition, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senate Judiciary Committee Ranking Minority Member Charles Grassley (R-IA) have jointly introduced S. 3245, a bill to permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program. No action on S. 3245 has been scheduled.

Immigration Provisions of Violence Against Women Act. While the process that will be used to resolve differences between the House-passed and Senate-passed versions of Violence Against Women Act reautorization legislation had not yet been determined at the time of this writing, it is believed that the two bodies could begin to move following the Independence Day recess to work through the differences between the two bills. 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. It has been widely reported that 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. However, it is 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 Committee on the Judiciary has approved 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 House Committee on the Judiciary approved the measure on Thursday, June 28, 2012, ordering that it be reported to the full House of Representatives. The House could take up the measure at any time after it returns to Washington from its July 4 recess.

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. The measures have broad, bipartisan support. However, they are 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.