With Little Debate, Congress Enacts Broad Range of Immigration Changes in Spending Bill

Some of the most substantial immigration policy changes enacted by Congress in more than a decade, touching on everything from high- and low-skilled temporary worker visas to border and visa security enhancements and the immigration courts, were quietly tucked into a must-pass spending bill signed into law in December, with little in the way of public debate.

The immigration provisions were part of the 2016 Consolidated Appropriations Act, which funds the entire federal government for the full fiscal year, for the first time since 2011. Though agreement on the legislation was considered a breakthrough in itself, more surprising but much less widely publicized was the extent of the immigration-related provisions the bill contains.

What is striking about these immigration measures is not simply the breadth of their reach, but the minimal controversy on and off Capitol Hill surrounding their passage. Equally remarkable is the fact that recently elected House Speaker Paul Ryan (R-WI), in one of his first announcements as the top House Republican, pledged he would not bring up immigration reform legislation for the remainder of the Obama presidency. The inclusion of immigration provisions in must-pass appropriation legislation could potentially signal a new approach for legislative change in the contentious immigration arena.

New Changes to Immigration Policy

While the appropriations bill, as expected, funded the Department of Homeland Security’s three immigration agencies at steady-state levels (see below), the immigration riders it includes affect a number of important elements in immigration policy.

Increases and Changes to Low-Skilled Visas

Two sets of provisions tucked into the bill alter the H-2B visa program, which admits foreign workers to fill nonagricultural temporary jobs in landscaping, hospitality, and seasonal occupations. The annual allocation of visas for the program is capped at 66,000 under current law. Under the spending bill, returning H-2B workers who received visas in fiscal year (FY) 2013, 2014, or 2015 will not be counted against the 2016 cap if they re-apply for a new H-2B visa this year. H-2B visas can be issued for a period of up to one year, but are typically granted for up to ten months, and can be renewed twice. After three years, an H-2B worker must leave the United States and remain abroad for at least three months before seeking admission again under the program. Opponents of the new provision estimate that the number of H-2B workers admitted in FY 2016 could triple or quadruple (to 250,000) as a result of the changes. The nonpartisan Congressional Budget Office, however, estimates the law will increase the numbers by 8,000.

Additional changes to the H-2B program will liberalize wage standards and recruitment requirements, and expand the definition of seasonal work. These provisions, supported by business advocates and opposed by labor interests, were championed by Sen. Barbara Mikulski (D-MD) on behalf of her state’s seafood industry.

Changes to High-Skilled Visa Programs

A second set of provisions—backed by labor proponents and opposed by business groups—increases fees paid by certain employers to sponsor high-skilled workers for H-1B and L-1 visas. For U.S. companies that employ more than 50 workers, more than half of whom are H-1B or L-1 nonimmigrant visa holders, supplemental fees for sponsoring new foreign workers have been raised by $2,000, to $4,000 for H-1B workers and $4,500 for L-1 workers. The new fees will also apply to visa extensions, and are authorized through September 30, 2025. The measure was designed to penalize certain foreign-based outsourcing firms that have gained widespread negative attention in recent months for perceived abuses of the H-1B program. Part of the proceeds from the new fees will fund a new victim’s compensation fund for 9/11 first responders, and will go towards a new biometric entry-and-exit data system.

Tightening Requirements for the Visa Waiver Program

In response to terror attacks in Paris in November, the omnibus bill includes national-security focused reforms to the Visa Waiver Program (VWP), which allows nationals of 38 mostly developed countries—such as France, the United Kingdom, and Japan—to temporarily visit the United States without first obtaining a visa at a U.S. consulate. The new provision bars from VWP participation individuals who since January 2011 have traveled to Syria, Iraq, Iran, or Sudan (and other countries to be designated in the future). The provision also excludes anyone who is a dual national of a VWP country and of Syria, Iraq, Iran, or Sudan. Additional passport security and information-sharing measures were also enacted.

Development Funding for Central America

The new law also includes a $750 million assistance package for Central America, with the aim of stemming rising child and family migration from the region. Specifically, the money is to fund the Alliance for Prosperity in the Northern Triangle plan, a proposal crafted by the governments of the United States, El Salvador, Honduras, Guatemala, and Mexico to address the root causes of migration from the region by stimulating economic growth, reducing inequality, promoting educational opportunities, targeting human trafficking, and improving governance. The Obama administration initially sought $1 billion for the initiative. The funding was included in the bill despite opposition from Republican lawmakers, and was seen as a victory for the administration as the final total was a significant increase from amounts the House and Senate earlier appeared likely to support.

Changes Affecting Judges, Investors, Doctors, and Ministers

The spending bill increases funding for the Executive Office for Immigration Review (EOIR), the overburdened federal immigration court system, to support the appointment of 55 additional immigration judges. Immigration courts are facing a current backlog of nearly 470,000 pending cases, due in part to the influx of unaccompanied children and families from Central America arriving at the U.S.-Mexico border, many of whom claim asylum in the United States.

The omnibus bill also extends for one year a key aspect of the EB-5 visa program, which provides green cards for foreigners who invest significant sums in the United States. Under the EB-5 program, foreign investors are eligible to receive green cards by investing at least $500,000 in a new commercial enterprise for one year and creating at least ten U.S. jobs. With the legislation, Congress revived an aspect of the EB-5 program that had been due to end: Regional centers, which allow such investors to pool their capital for regional economic development projects.

Congress also extended for a year two additional programs—the Conrad 30 waiver program for foreign physicians working in medically underserved U.S. communities, and the Special Immigrant Religious Worker Program, which allows ministers and nonministers performing religious work to immigrate to or adjust to permanent residence status in the United States.

Department of Homeland Security Highlights

Under the new law, federal immigration-related agencies housed in the Department of Homeland Security (DHS) will continue to receive high levels of funding, with a number of funding pools earmarked for specific immigration enforcement activities. U.S. Customs and Border Protection (CBP), the federal agency charged with border controls and facilitating lawful international travel and trade, will be funded at $13 billion in FY 2016, a small increase over the $12.6 billion appropriated in FY 2015. CBP is required to maintain the current level of 21,370 U.S. Border Patrol agents, and spend $447,461,000 on border-security fencing, infrastructure, and technology.

U.S. Immigration and Customs Enforcement (ICE), which enforces federal laws governing immigration control, customs, and trade, will receive $5.8 billion, a slight decrease from $5.9 billion in FY 2015. ICE is required to spend $3.2 billion on the detention and removal of unaccompanied children (UACs), $1.6 billion on identification and removal of noncitizens with criminal convictions, and maintain the current level of 34,000 detention beds available daily. Additionally, the law requires ICE to share certain information with Congress about communities’ participation in the Priorities Enforcement Program (PEP), a federal-local information-sharing program designed to identify certain unauthorized immigrants in state or local jails for removal. PEP replaced the controversial Secure Communities program in July 2015 with the aim of improving cooperation between federal and local law enforcement agencies on detained noncitizens.

U.S. Citizenship and Immigration Services (USCIS), the agency responsible for processing applications for immigration benefits, such as naturalization, green cards, and work authorization permits, will operate with a budget of $3.6 billion in both fee-collected funds and discretionary spending (up from $3.2 billion in FY 2015). That includes $120 million for E-Verify, a program that allows employers to check the work authorization status of new employees. The law also authorizes USCIS to spend up to $10 million on immigrant integration and naturalization efforts.

A Way Forward for Future Debates?

The noncontroversial passage of the immigration measures in the appropriations bill could be interpreted by some as a sign of progress on a legislative subject that has been plagued for decades by political acrimony and congressional gridlock. Collectively, the provisions represent wins for both Democrats and Republicans, and exemplify the classic give and take that characterizes the legislative process. The Visa Waiver Program changes, for example, were included after overwhelming bipartisan support for identical standalone legislation.

On the other hand, it may be that though the underlying gridlock remains, the must-pass nature of this spending bill caused leaders in both political parties to impose a measure of restraint and hold off on including more controversial provisions. Republican leaders, for example, resisted the temptation to include several contentious immigration-related proposals currently on the table—including barring federal funding for sanctuary cities (communities that limit cooperation with ICE on immigration enforcement) and halting the resettlement of Syrian refugees—provisions that faced strong Democratic opposition. The détente on the Syrian refugees may be a brief one, however, with the Senate soon expected to debate legislation that would bar the resettlement of refugees from the war-torn country.

And while the measures included in the omnibus make some significant and controversial changes, none were deemed poison pills (or provisions so unpalatable to one party as to doom the entire package). This indicates there exists a winning coalition of senators, House members, and party leaders willing to touch some thorny immigration issues—a sign that bodes well for future attempts at broader reforms.

However significant, the immigration riders, particularly to the H-1B, H-2B, and L-1 visa programs, do little to address systemic challenges in these programs. Instead, they represent changes tailored to accommodate special interests. Some who opposed including them have argued that several of the provisions could have been valuable bargaining chips in potential future negotiations over broader reforms of these temporary worker programs.

Lastly, lawmakers’ successful use of a must-pass spending bill to enact substantial immigration policy changes may suggest two lessons for immigration reform in the future. First, holding out for a comprehensive package is not the only way to make significant reforms. Short-term, specific changes can be achieved in the absence of a comprehensive approach. And second, since many stand-alone immigration measures have been difficult to enact, including provisions in must-pass spending legislation may be a promising strategy for achieving certain aspects of reform, at least in the short run.

• Read the 2016 Consolidated Appropriations Act
• Council on Foreign Relations commentary on immigration provisions in the spending bill
• Congressional Budget Office’s score of the bill’s new H-2B provisions

National Policy Beat in Brief

U.S. Supreme Court Will Hear States’ Challenge to President Obama’s Immigration Actions. On January 19, the U.S. Supreme Court announced it will hear and rule in Texas v. United States. In the case, 26 U.S. states, led by Texas, challenged a set of executive actions to protect up to 4.2 million unauthorized immigrants from deportation, announced by President Obama in November 2014. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program were enjoined by a federal judge in Texas in February 2015, a decision affirmed twice by the Fifth U.S. Circuit Court of Appeals. The U.S. Supreme Court will likely hold oral arguments in April of this year and issue a ruling by the end of June. The high court’s decision will determine whether the Department of Homeland Security (DHS) may begin implementing the deferred action programs in the final months of the Obama administration.

• Washington Post article on the Supreme Court’s review of Texas v. United States
• The U.S. Supreme Court’s grant of certiorari

Obama Administration Announces New Refugee Program for Central Americans. Secretary of State John Kerry on January 13 announced a new refugee resettlement program for individuals facing persecution in Central America. The initiative builds on an existing in-country refugee processing program for children at risk of violence, established in December 2014 in the Northern Triangle countries of Honduras, El Salvador, and Guatemala. Under the new plans, adults from those three countries will be able to apply for refugee status at processing centers established within the region, including in third-party countries. The United Nations High Commissioner for Refugees (UNHCR) will assist with administering the program, which intends to stem a recent influx of Central American migrants arriving at the U.S.-Mexico border by providing a safe, legal alternative to hiring a smuggler and taking the dangerous journey north through Mexico. The Northern Triangle has experienced an epidemic of violence perpetrated by criminal gangs in recent years, driving many people—especially women and children—to flee. The Obama administration estimates that 9,000 Honduran, El Salvadoran, and Guatemalan nationals eventually could be admitted annually as refugees through the program, with more potentially resettled elsewhere in the hemisphere. To be granted refugee status, an applicant must demonstrate that he or she was persecuted or fears persecution due to race, religion, nationality, political opinion, or membership in a particular social group.

• The New York Times article on the new refugee resettlement program for Central America
• Department of State factsheet on expansion of the Refugee Admissions Program

DHS Conducted More Than 462,000 Removals and Returns in FY 2015. Between October 1, 2014 and September 30, 2015, DHS conducted a total of 462,463 removals and returns (removals may carry administrative or criminal consequences upon subsequent re-entry). U.S. Immigration and Customs Enforcement (ICE) accounted for 235,413—with 165,935 carried out at the border and the remaining 69,478 conducted in the interior. Ninety-eight percent of ICE’s fiscal year (FY) 2015 removals and returns were of individuals deemed an enforcement priority (due to their criminal history, past immigration violations, or other factors). Additionally, the U.S. Border Patrol made 337,117 apprehensions nationwide in FY 2015, a 30 percent decline from FY 2014, and the lowest number on record since the 1970s. Fifty-six percent of individuals apprehended at the border were Mexican nationals. DHS released these and other immigration enforcement statistics in late December.

• DHS press release with immigration enforcement statistics

As Apprehensions of Unaccompanied Children and Family Units Rise, DHS Launches Enforcement Operations, Increases Bed Space. Arrivals of children and families at the U.S.-Mexico border have accelerated in FY 2016, according to new DHS figures. In the first three months of the fiscal year, Border Patrol apprehended 17,370 unaccompanied children (UACs) and 21,469 individuals traveling in family units (compared to 7,987 UACs and 7,468 families over the same period last year, and 39,970 unaccompanied children and 39,838 families in all of FY 2015). Apprehensions at the border typically decrease in winter months, and DHS has taken several steps in response to the new influxes. On January 4, Homeland Security Secretary Jeh Johnson announced a series of immigration enforcement operations focused on recently arrived Central American families. According to Johnson, 121 adults and children were arrested, primarily in Texas, Georgia, and North Carolina; all had been apprehended at the Southwest border after May 1, 2014, issued final orders of removal by an immigration judge, and were deemed to have exhausted legal options for immigration relief. While DHS has defended the operation, citing the agency’s duty to uphold and enforce immigration laws, it has sparked a fierce backlash among Democratic lawmakers and immigration advocates, who argue that the families should be treated as refugees and not returned to the dangerous conditions they fled. Moreover, the fact that several immigrants swept up in the operation were later granted temporary deportation deferrals by the immigration courts has raised further questions about the merits of the raids. In response to the rising numbers of unaccompanied children, the Department of Health and Human Services (HHS), which under U.S. law takes custody of unaccompanied children apprehended by the Border Patrol, has recently added more than 1,000 beds to its shelter capacity, announced that another estimated 1,800 beds will be available soon, and continues to seek additional space to house migrant children.

• Secretary Johnson's statement on the enforcement operation
• Border Patrol statistics on unaccompanied child arrivals

CBP Pilots Iris Scans at U.S. Port of Entry in California. On December 10, U.S. Customs and Border Protection (CBP) began a pilot program at the Otay Mesa land port of entry in San Diego to collect biometric iris scans from pedestrians entering the United States. Starting in February, the eye scans will also apply to pedestrians departing the United States. The pilot program aims to test biometric technology to track entries and exits from the country. Congress first mandated an entry-exit data collection system in 1996, but high costs and lack of infrastructure have hampered development and implementation. While exit records are collected at airports, departures to Mexico from southwest land ports are not tracked (Canada shares information of departures of foreigners on the northern land border). The key purpose of an entry-exit system is to identify individuals who overstay their visas.

• Quartz article on eye scan pilot program

State and Local Policy Beat in Brief

States Continue to Weigh in on Refugee Resettlement. Alabama filed a lawsuit on January 7 against the resettlement of refugees in the state by the federal government. The legal challenge contends the Obama administration has failed to properly consult with state officials about the placement of new refugees, as required by the 1980 Refugee Act. Texas filed a similar lawsuit in December aimed specifically at blocking the resettlement of Syrian refugees, over concerns about such immigrants’ ties to ISIS. Following a large-scale terrorist attack in Paris in November, allegedly carried out by several Syrian nationals linked to ISIS and posing as refugees, more than two dozen U.S. governors called for a halt to the resettlement of Syrian refugees in their states. Doubts about states’ legal authority to stop refugee resettlement, however, has prompted some governors to walk back their positions. On January 4, Georgia Gov. Nathan Deal rescinded an executive order seeking to block resettlement of Syrian refugees after the state’s attorney general issued an opinion finding the state lacks such authority.

• Associated Press article on Alabama lawsuit
• Associated Press article on Gov. Deal’s rescinded order

New York City to Devote New Funds for Immigration Services. On December 14, New York City Mayor Bill de Blasio announced the city would spend $7.9 million to provide immigrants with free legal assistance to apply for deportation relief, naturalization, and other immigration benefits. The initiative, called Action NYC, aims to reach up to 75,000 immigrants in its first year, and was billed as a way to invest in the city’s immigrants amid federal stagnation on immigration policy. Two programs announced by President Obama in November 2014—DAPA and an expansion of the existing DACA—have been stalled in federal court since February 2015, and will be considered by the U.S. Supreme Court this year. According to de Blasio, the initiative will help immigrants fully benefit from Obama’s deportation relief programs if and when they go into effect.

• The New York Times article on Mayor de Blasio’s new immigrant initiative

Philadelphia Withdraws From Cooperation with PEP. Hours after being sworn into office on January 4, Philadelphia Mayor Jim Kenney issued an executive order ending the city’s participation in the federal Priorities Enforcement Program (PEP). PEP, which is administered by ICE, allows federal immigration officials to compare the fingerprints of inmates booked into local jails against DHS immigration databases to determine a subject’s immigration status. It also allows ICE to request notification of certain individuals’ release from jail, or ask that a person be held in custody beyond their scheduled release for transfer into ICE custody. PEP was announced in November 2014 and replaced the similar, more controversial Secure Communities program in July 2015. Philadelphia’s previous mayor, Michael Nutter, had agreed to participate in PEP on December 22, 2015.

• Fox News Latino article on Mayor Kenney’s act to end participation in PEP