April 10 Legislative Preview

Congress Begins Two Week-Long
Easter Recess But a Heavy Immigration and Refugee Agenda Could Be On Tap Upon Its Return

Monday, April 10. 2017

Both the House and Senate have departed Washington to begin two week-long Easter recesses.  The Senate is scheduled to return to the Nation's Capitol on Monday, April 24th, while the House plans to resume its sessions one day later.  Once back, the two chambers could immediately be thrown into a showdown between each other and with the White House over funding a border wall and funding increased defense and immigration enforcement spending that could force a shutdown of the federal government.

Upon its return on April 24th, Congress will begin a five week-long work period leading up to a one week-long Memorial Day recess, which begins upon the close of business on Friday, May 26th, and ends on Monday, June 5th.

In actuality, the Senate is scheduled to be in session continuously throughout that five week-long work period.  However, the House is scheduled to be in session for the first two weeks, in recess during the week of May 8th, and then resume activity for the last two weeks leading up to the Memorial Day recess.

With Congress absent over the next two weeks, the focus of immigration-, refugee-, and human trafficking-related activity will shift from Congress to the executive branch during the two week-long congressional recess. 

The following examines the likely and possible legislative action on migration-related matters that Congress will face during the five week-long work period that will begin after Congress returns from its Easter recess.

General Legislative Agenda During the Next Work Period.  Immediately upon their return in late April, the two chambers will be faced with an end-of-the-week deadline to avoid a partial shutdown of the federal government.   To avoid such a shutdown, they will have to complete work on a measure appropriating funding for the federal government through the end of fiscal year 2017 (or for a shorter period if they cannot come to an agreement on funding for the remainder of the fiscal year).  

Once Congress gets past that deadline, the House and Senate are expected to begin work on the fiscal year 2018 budget resolution, which the GOP Leadership hopes to use as a vehicle to ensure expedited consideration later this year of tax overhaul legislation.

Following their consideration of the FY '18  budget resolution, the two chambers are expected to being their initial efforts to  produce the 12 regular fiscal year 2018 appropriations bills,

There are a few wildcards that could get thrown into the mix.  The House Republican Leadership continues to work on legislation to "repeal and replace" the Affordable Care Act and could bring such legislation to the House floor at any time.  President Trump has requested supplemental appropriations for fiscal year 2017 for defense and immigration enforcement that Congress has no clear plans yet to deal with.   And the Senate still has a few high profile nominations to consider.

Migration-Related Legislative Agenda During the Next Work Period.  Despite the crowded general legislative agenda that Congress could face when it returns from its Easter recess, there is a strong likelihood that it will devote substantial attention to immigration-, refugee-, and human trafficking-related matters during the work period to come ,including attention to the following matters:

• FY '17 Funding for Migration-Related Agencies, Programs, and Activities.  Immediately upon its return, Congress will be faced with an April 28, 2017, deadline for enactment of legislation to keep most of the federal government from shutting down.  That is because late last year, Congress only funded the operations of the federal government through that date. 
  

The likelihood is that Congress either will take one of two steps when it gets back in late April.  It either will tie together the 11 FY '17 appropriations bills that have yet to be enacted into law into one omnibus FY '17 appropriations bill.  Or it will pass a continuing appropriations measure that more-or-less continues funding for agencies and programs for the remainder of fiscal year 2017 at last year's levels of spending.

From the perspective of immigration refugees, and human trafficking, four of the 12 regular appropriations bills provide funding for the nation's border security-, interior immigration enforcement-, immigration services-, refugee-, and human trafficking-related agencies and functions:

o

Homeland Security.  Each year, this bill appropriates funding for he Department of Homeland Security, including the Department's Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP) components.

President Trump has requested $3 billion in supplemental fiscal year 2017 funds for immigration enforcement activities, including a request for $1.6 billion to fund the construction of a wall between the U.S. and Mexico and $1.4 billion for increased detention and hiring additional ICE and CBP personnel.

This request has been highly controversial among Democrats in the Senate, who have hinted that they might block consideration of a year-end spending bill if funding for the request is included it.  The request also has been unpopular among many Republican appropriators.  Most of them have suggested that the supplemental request should be taken up either as a separate measure or as part of the fiscal year 2018 appropriations process.

o

State,  Foreign  Operations,  and  Related  Programs.  Each year, this bill appropriates funding for the Department  of  State’s refugee admissions and overseas refugee assistance programs that are administered by the Bureau of Population, Refugees, and Migration (PRM) and administered through the Migration and Refugee Assistance (MRA) and Emergency Refugee and Migration Assistance (ERMA) accounts.  The bill also appropriates funding for the International  Disaster  Assistance  (IDA)  account  that  is administered through the Department of State’s United States Agency for International Development (USAID).

President Trump has requested a cut of $99 million in the Department of State's MRA account for fiscal year 2017, suggesting that it can be absorbed because of the reduced number of refugees it plans to admit to the United States for the remainder of fiscal year 2017.

o

Labor, Health and Human Services, Education, and Related Agencies.  Each year, this bill appropriates funding for the Department of Health and Human Services Office of Refugee Resettlement (ORR), which operates the federal government's refugee resettlement program, as well as programs to assist foreign-born torture victims, trafficking victims, and unaccompanied children.

o

Commerce, Justice, Science, and Related Agencies.  Each year, this bill appropriates funding for the Department  of Justice's immigration court system (EOIR) and the Department's Office of Immigration Litigation (OIL).

• Expiring Immigration Programs.  In addition to funding the federal government through the end of fiscal year 2017, it is possible that the final FY ’17 appropriations measure that Congress takes up upon its return from the Easter Recess will determine, at least on a temporary basis, the fate of four immigration programs that expire on April 28, 2017;
  

o

The E-Verify Program.  Created as a temporary pilot program by Sections 401(b) and 403(a) of P.L. 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the E-Verify program is an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.  It's authority expires from time-to-time and needs to be reauthorized when it expires.

o

Religious Worker Visas.  Created as part of P.L. 101-649, the Immigration Act of 1990, the Non-Minister Special Immigrant Religious Worker Visa Program, found in Section 101(a)(27)(C) of the Immigration and Nationality Act, provides religious organizations a way to sponsor religious workers to immigrate to the United States to perform work for their organizations in the United States.  It's authority expires from time-to-time and needs to be reauthorized when it expires.

o

Conrad 30 State J-1 Visa Program.  Created as part of Public Law No: 109-477 in 1994, the Conrad 20 State J-1 Visa Program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. The program was intended to address the shortage of qualified doctors in medically underserved areas.  It's authority expires from time-to-time and needs to be reauthorized when it expires.

o

Investor Visa Regional Center Program.  Created in 1993, the EB-5 Regional Centers Program, known formally as the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 investor visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.   It's authority expires from time-to-time and needs to be reauthorized when it expires.

• Pending Immigration-Related Confirmations.  The full Senate is likely to take up two nominations for positions that have jurisdiction over immigration matters during the coming work period.  The firs of these is the nomination of Rod J. Rosenstein to be Deputy Attorney General.  The second is the nomination of Rachel L. Brand, to be Associate Attorney General. 
  

o

Deputy Attorney General.  Shortly after the Senate returns to Washington in late April, it is expected to take up the nomination of Rod J. Rosenstein to be Deputy Attorney General. 

The Deputy Attorney General is the second-highest-ranking official in a Department of Justice.  He or she oversees the day-to-day operation of the Department, and may act as Attorney General during the absence of the Attorney General.  From an immigration perspective, the Executive Office for Immigration Review (EOIR) reports to the Deputy Attorney General.

Shortly before the Senate left Washington to begin its Easter recess, Senate Majority Leader Mitch McConnell (R-KY) filed a cloture petition to bring debate on the Rosenstein nomination to a close, setting up a possible floor vote on the nomination during the Senate's first week back.

There is no organized opposition in the Senate to the Rosenstein nomination.

o

Associate Attorney General.   The Senate also could take up the nomination of Rachel L. Brand, to be Associate Attorney General during the coming work period.

The Associate Attorney General is the third-ranking official in the U.S. Department of Justice. The Associate Attorney General advises and assists the Attorney General and the Deputy Attorney General in policies relating to civil justice, federal and local law enforcement, and public safety matters.  It oversees a number of entities within the Department.  From an immigration perspective, the position oversees the Office of Immigration Litigation (OIL) and the Community Relations Service.

Brand's nomination was approved by a party-line vote in the Senate Committee on the Judiciary, signalling the likelihood that organized opposition to her nomination .will emerge on the Senate floor.

•  FY '18 Budget Submission and FY '18 Budget Resolution.  President Trump has promised that he will submit his full fiscal year 2018 budget to Congress during the next congressional work period.  It is expected to flesh out in greater detail the $4.5 billion in increased spending for the Department of Homeland Security's immigration enforcement and border security functions, the increases in immigration enforcement-related spending in the Department of Justice, and the likely cuts in refugee-related spending in the Departments of State and Health and Human Services that were foreshadowed in his March FY '18 Budget Blueprint.

• FY '18 Funding for Migration-Related Agencies, Programs, and Activities.  Once Congress has cleared the fiscal year 2017 appropriations bills, it will begin working in earnest on the fiscal year 2018 spending measures.   At stake will be funding in fiscal year 2018 for all of the nation's border security, interior immigration enforcement, immigration services, refugee admissions, refugee resettlement, and human trafficking agencies, functions, programs, and activities.
  

In addition to deciding how much funding will be appropriated in fiscal year 2018 for immigration-, refugee-, and human trafficking-related  agencies and functions, the fiscal year 2018 appropriations bills could also become vehicles for fighting over policy on those subjects through legislative riders.

• Other Immigration- and Refugee-Related Matters.  In addition to budget, appropriations, and confirmation activity, various Members, senators, and committees will also be active in their pursuit of other immigration-, refugee-, and human trafficking-related matters.

o

Human Trafficking.  At least three senators and one member of the House are working on significant pieces of legislation that would reauthorize existing authorities and provide new authorities dealing with human trafficking. 

Among those working on separate such measures in the Senate are Senate Judiciary Committee Chairman Charles Grassley (R-IA), Senate Judiciary Subcommittee on Immigration Chairman John Cornyn (R-TX), and Senate Foreign Relations Committee Chairman Bob Corker (R-TN).

On the House side of the Capitol Dome, House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations Chairman Chris Smith (R-NJ) is working on human trafficking legislation.

All of these measures are being developed in anticipation of the September 30, 2017, expiration of the funding authorizations for programs included in the Trafficking Victims Protection Act.

o

Immigration Enforcement Legislation.  Senate Judiciary Subcommittee on Border Security and Immigration Chairman John Cornyn (R-TX) and House Homeland Security Committee Chairman Michael McCaul (R-TX) are working on a wide-ranging immigration enforcement bill that they could introduce and try to move during the late-April through May congressional work period. 

The measure, reportedly, contains numerous provisions including those that would authorize use of the National Guard on the U.S. border, provide additional authorities for constructing fencing along the U.S. border with Mexico; authorize additional funding for hiring more border and interior immigration enforcement personnel; provide for penalties for so-called sanctuary jurisdictions; increase penalties for human smuggling, illegal entry, and illegal reentry into the United States; curtail the authority of the executive's use of humanitarian parole; provide the executive with new authorities to designate groups and persons as members of criminal gangs and make it possible to deny immigration benefits to persons so-designated; and curtail the rights of unaccompanied alien children seeking protection in the United States.

It is not possible to determine at the time of this writing how seriously Chairmen Cornyn and McCaul are about moving the measure through Congress.  It should be noted, however, that many of the provisions that are reported to be in the measure are anathema to House and Senate Democrats, making it legislation that would be difficult to move in the Senate.

o

Immigration- and Refugee-Related Hearings.  The House and Senate Judiciary, Homeland Security, Homeland Security and Governmental Affairs,  Foreign Affairs, Foreign Relations Committees are expected to hold hearings throughout the late April-May congressional work period on immigration- and refugee-related matters.