Recent Immigration Law Developments—and What the Current Spending Bill Includes

By Trent Cotney, Cotney Attorneys & Consultants.

In the eight months since President Joe Biden took office, U.S. immigration laws have been revised in ways that affect employers, workers and the public at large.

Some changes have been introduced as legislation, others have come about by administrative actions and judicial rulings and some initiatives are still under consideration in the current $3.5 trillion spending package.

Legislative Actions

Introduced on February 18, 2021, H.R. 1177, the U.S. Citizenship Act of 2021, called for a five-year pathway to citizenship for the 11-13 million undocumented immigrants in this country. The first stage would involve using green cards, followed by a three-year timespan for attaining full citizenship. Sen. Robert Menendez (D-NJ) and Rep. Linda Sanchez (D-CA) are champions of the bill, but it stalled in the House.

The following month, on March 18, the U.S. House passed H.R. 6, the American Dream and Promise Act. This bill would provide “Dreamers” with a citizenship process and offer a path to legal status for those with temporary protected status (TPS). Dreamers are those impacted by the Deferred Action on Childhood Arrivals (DACA) program and the Development, Relief and Education for Alien Minors (Dream) Act. On the same day, the House passed H.R. 1603, the Farm Workforce Modernization Act. This bill would provide a route for unauthorized farmworkers to earn legal status.

Details of these three bills made their way into the $3.5 trillion spending package that the Senate approved on August 11. It allots $107 billion for charting a pathway to citizenship for millions of immigrants while also investing in border security. However, that package is headed to the House for more debate, and it may be weeks before it hits President Biden’s desk.

In addition, H.R. 3897, the H-2B Returning Worker Exception Act, was introduced by Reps. Henry Cuellar (D-TX) and David Joyce (R-OH) on June 15. This bill would improve the H-2B seasonal visa program and expand eligibility. If passed, this legislation could have a significant impact on construction, agriculture, and other industries.

Administrative and Judicial Actions

During his time in office, President Donald Trump made the decision to end TPS for individuals from Sudan, Nicaragua, Haiti, and El Salvador. Prior to the 2020 Presidential Election, in October 2020, the 9th Circuit reversed an injunction against that decision. However, TPS holders from Haiti were protected via a separate preliminary injunction, and due to an October 2019 agreement between the U.S. and El Salvador, those from El Salvador will not face possible removal until at least 2022. In addition, TPS holders from Honduras were not affected by the 9th Circuit decision because the Trump administration’s termination of their status was under review in another case. It is interesting that the Biden Administration has not pursued the removal of these TPS holders, but questions remain surrounding their status. However, the White House did announce on May 24 that more than 100,000 Haitians already in the United States would be allowed to apply for another 18-month TPS designation. 

On May 25, the Department of Homeland Security (DHS) published a notice that made an additional 22,000 H-2B visas available for fiscal year 2021. Of that number, 16,000 were placed in a general pool for returning workers (referring to H-2B visa holders who had worked in the U.S. during the past three years). The other 6,000 were designated only for workers from El Salvador, Honduras, and Guatemala; however, the notice stated that if these visas were not all used by July, they would be made available to other employers seeking H-2B workers from any country. On June 7, the DHS Citizenship and Immigration Services announced that 16,000 general pool visas had been spoken for, and on July 27, the agency made the remaining unfilled visas available to employers.

On July 16, the Southern District Court of Texas ruled that the Obama administration had overstepped in creating the DACA program and therefore struck it down. This decision means that unless another ruling is made by another court, the DHS is prohibited from granting DACA status for new applications. No doubt, this action played a part in Democrats adding immigration provisions to the $3.5 trillion spending package that is now in the U.S. House of Representatives.

What This Means for Employers and Immigrant Workers

Construction, agriculture, and other industries rely heavily on skilled laborers from other countries. It will be interesting to see how many H-2B visas will be made available in the coming years and what pathways to citizenship may actually be created, either in the current spending package or future legislation.

In the meantime, employers must use caution when hiring immigrant workers and ensure that they are legally allowed to work in the United States. This advice is especially true for those with federal contracts.

If you are unsure how current immigration laws affect your workforce, do not hesitate to consult legal counsel. Experienced immigration and labor attorneys can answer your questions and help you ensure compliance.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.

Contact Cotney Construction Law for additional information.

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