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Defense Bill Could Be Last Chance for Immigration Laws This Year

Jul 22, 2022

The U.S. Capitol at dusk

Last week the House passed a wide-ranging defense authorization bill that included provisions to assist Afghan refugees and “documented Dreamers,” in what may be the last opportunity for Congress to enact any immigration reforms this year.

Despite many bills being negotiated and introduced in both chambers during the 117th Congress, which lasts from January 2021 until January 2023, lawmakers have so far failed to come together on any immigration provisions, even as many fear that time is running out before midterm elections potentially change the makeup of Congress.

The Farm Workforce Modernization Act is the sole standalone immigration bill currently under active consideration, but its fate in the Senate — despite being passed by the House of Representatives twice — is uncertain. The House-passed China competition bill had also contained immigration provisions, but these were stripped out by the Senate as the bill was reduced to merely a bill to fund development of the U.S. semiconductor chips industry.

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Thus, the most likely candidate for immigration provisions to become law during this Congress is the National Defense Authorization Act (NDAA), which was passed by the House on July 14 with three immigration-related amendments. The Senate is negotiating its own version of the NDAA.

National Defense Authorization Act (NDAA)

The first immigration-related amendment to the NDAA was a bipartisan provision to protect documented Dreamers, the dependent children of green card applicants and employment visa holders who face deportation when they “age out” of eligibility for the dependent visa status. The amendment was offered by Rep. Deborah K. Ross, D-N.C., and co-sponsored by Rep. Mariannette Miller-Meeks, R-Iowa.

Afghan refugees will also see some relief if the House version of the NDAA becomes law. Democratic Rep. Elissa Slotkin, D-Mich., offered two amendments to assist Afghan citizens who assisted the U.S. efforts in Afghanistan and are now in danger.

The first amendment would direct the Department of State to dramatically increase processing capacity for Afghan special immigrant visa (SIV) applications and refugee referrals. The SIV system, put in place originally to help Afghan interpreters and others who directly assisted the U.S. military, has been plagued for years by bureaucratic red tape and years-long backlogs.

The second amendment included by Rep. Slotkin would make it easier for Afghan students to receive visas without proving an intent to return to Afghanistan. To be approved, student visa applicants must prove that they do not have “immigrant intent,” which means they don’t intend to stay in the U.S. permanently, but plan to return to their home country when they complete their studies.

However, a different proposal to exempt immigrants with advanced science, technology, engineering, and math (STEM) degrees in national security-related fields from the numerical green card limits, which have contributed substantially to the massive green card backlog at DOS, was shelved. At the close of FY2021, there were more than 9 million green card applicants stuck in the backlog—about 7.5 million on the family-based side and 1.6 million on the employment-based side. The amendment was cut by the House Rules Committee for containing fees that ran afoul of legislative tax rules.

The House voted by roughly a 3-1 majority to approve the NDAA, which funds and directs policy for the military and other aspects of the U.S. defense. The bill has been passed each year since 1961, and is considered a “must-pass” piece of legislation. As Caroline Simon noted at RollCall, “the inclusion of immigration provisions [in the bill] bodes well for their future at a time when immigration bills rarely move as stand-alone measures.”

Farm Workforce Modernization Act (FWMA)

The Farm Workforce Modernization Act (FWMA) has been passed by the House twice, and aims to modernize the H-2A temporary agricultural visa program. The current food production workforce recruitment system in the U.S. is believed by many to have led to higher food prices, particularly for dairy, meat, and vegetables.

FWMA would allow more farmers to hire temporary H-2A workers year-round, rather than only for short-term, seasonal work. Currently, farms like dairy and pork producers cannot source workers from the H-2A visa program, which has intensified labor shortages in these food industries during a time of already record prices.

The bill would also provide a pathway to legalization for some farm workers — a path that does not currently exist for H-2A visa holders.

Despite the fact that the House came together with bipartisan support to pass this bill twice already, FWMA is in peril in the Senate, where negotiators are arguing over a provision that would expand federal law to allow H-2A workers to sue their employers if U.S. labor laws are broken.

The largest agriculture lobbyist in Washington, D.C., the American Farm Bureau Federation, is known for its usually conservative positions and is opposed to the expansion of the Migrant and Seasonal Agricultural Workers Protections Act (MSPA) contained in the Farm Workforce bill.

Though Senators have some agreements nailed down, including an agreement to freeze H-2A wages at current levels for 2023, and a deal that would allow employers to hire more H-2A workers year-round than the House originally proposed, the overall fate of the bill remains uncertain.

Because the American Farm Bureau has refused to support expansion of MSPA for H-2A workers, some lawmakers are hesitant to commit to the bill. Some growers feel that the AFBF has sided with growers of only one region of the country, and some lawmakers worry that will come at the expense of a workable solution to sharply increasing food prices in the United States.

As Rep. Doug LaMalfa R-Calif., said at a press conference hosted by the American Business Immigration Coalition last week, “Do people want to eat in this country or not?”

U.S. Innovation and Competitiveness Act (USICA)

The U.S. Innovation and Competition Act (USICA) is the bill formerly referred to informally as the “China competition bill,” a sweeping piece of legislation aimed at countering China’s economic reach.

The House version of a China competition bill had included some immigration policies, but key Republican senators refused their inclusion. Proposals to ease the path to a green card for immigrants with advanced STEM degrees were slashed from the Senate bill.

The bill has been largely gutted in the Senate, where it has been whittled down merely to CHIPS funding (Creating Helpful Incentives to Produce Semiconductors). In its current form, the slimmed-down CHIPS bill will provide a $52 billion investment in semiconductor manufacturing subsidies, as well as tax credits and funding for scientific research.

The Senate first passed its version of USICA in June 2021, but the House did not take it up or otherwise take any action on the bill until this year. Some Senators reportedly believe this delay is responsible for creating the dire shortage situation in which the U.S. now finds itself.

The Senate passed a procedural move to prepare for potential votes on USICA in both the House and the Senate by the end of July. Both the House of Representatives and the Senate are scheduled to recess in August.

Immigration in the Coming Congress

With midterm elections looming in November, many are predicting that control of the House could switch from the Democratic to the Republican party. House Minority Leader Kevin McCarthy, R-Calif., who would become Speaker of the House if Republicans take the majority, has vowed that he will bring no immigration-related bills to the floor.

McCarthy has also indicated plans to attempt to impeach the head of the Department of Homeland Security (DHS), Alejandro Mayorkas, for supposed dereliction of duty. Republican lawmakers hold Mayorkas singularly accountable for the high level of border crossings in recent years, despite the fact that the implementation of Title 42 at the southern border by the previous administration has dramatically increased border crossings itself.

Other proposed plans by the hopeful-majority include legislation to restart Remain in Mexico, further increasing security at the heavily-militarized border, ramping up arrests and detentions of all immigrants living in the U.S., regardless of whether they are a threat to national security or public safety, and further restricting the already-hobbled asylum system.

These threats by members of Republican party leadership add to the sense of urgency felt on Capitol Hill, as Democrats rush to pass what they can before time runs out in November. Given the breakdown of President Joe Biden’s Build Back Better legislation earlier this year, followed by the repeated stalling of bills and removal of immigration reform amendments, immigration advocates in Congress will need to move quickly to save what’s left of Biden’s immigration agenda, as well.

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