[House Report 116-97]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-97
======================================================================
AMERICAN PROMISE ACT OF 2019
_______
May 30, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2821]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2821) to authorize the cancellation of removal and
adjustment of status of certain nationals of certain countries
designated for temporary protected status or deferred enforced
departure, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 7
Background and Need for the Legislation.......................... 7
Hearings......................................................... 10
Committee Consideration.......................................... 11
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 15
Committee Estimate of Budgetary Effects.......................... 15
New Budget Authority, Entitlement Authority, and Tax Expenditures 15
Congressional Budget Office Cost Estimate........................ 15
Duplication of Federal Programs.................................. 18
Performance Goals and Objectives................................. 18
Advisory on Earmarks............................................. 18
Section-by-Section Analysis...................................... 18
Dissenting Views................................................. 21
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Promise Act of 2019''.
TITLE I--TREATMENT OF CERTAIN NATIONALS OF CERTAIN COUNTRIES DESIGNATED
FOR TEMPORARY PROTECTED STATUS OR DEFERRED ENFORCED DEPARTURE
SEC. 101. ADJUSTMENT OF STATUS FOR CERTAIN NATIONALS OF CERTAIN
COUNTRIES DESIGNATED FOR TEMPORARY PROTECTED STATUS
OR DEFERRED ENFORCED DEPARTURE.
(a) In General.--Notwithstanding any other provision of law, the
Secretary or the Attorney General shall cancel the removal of, and
adjust to the status of an alien lawfully admitted for permanent
residence, an alien described in subsection (b) if the alien--
(1) applies for such adjustment, including submitting any
required documents under section 207, not later than 3 years
after the date of the enactment of this Act;
(2) has been continuously physically present in the United
States for a period of not less than 3 years before the date of
the enactment of this Act; and
(3) is not inadmissible under paragraph (1), (2), (3),
(6)(D), (6)(E), (6)(F), (6)(G), (8), or (10) of section 212(a)
of the Immigration and Nationality Act (8 U.S.C. 1182(a)).
(b) Aliens Eligible for Adjustment of Status.--An alien shall be
eligible for adjustment of status under this section if the alien is an
individual--
(1) who--
(A) is a national of a foreign state (or part
thereof) (or in the case of an alien having no
nationality, is a person who last habitually resided in
such state) with a designation under subsection (b) of
section 244 of the Immigration and Nationality Act (8
U.S.C. 1254a(b)) on January 1, 2017, who had or was
otherwise eligible for temporary protected status on
such date notwithstanding subsections (c)(1)(A)(iv) and
(c)(3)(C) of such section; and
(B) has not engaged in conduct since such date that
would render the alien ineligible for temporary
protected status under section 244(c)(2) of the
Immigration and Nationality Act (8 U.S.C. 1245a(c)(2));
or
(2) who was eligible for Deferred Enforced Departure as of
January 1, 2017, and has not engaged in conduct since that date
that would render the alien ineligible for Deferred Enforced
Departure.
(c) Application.--
(1) Fee.--The Secretary shall, subject to an exemption under
section 203(c), require an alien applying for adjustment of
status under this section to pay a reasonable fee that is
commensurate with the cost of processing the application, but
does not exceed $1,140.
(2) Background checks.--The Secretary may not grant an alien
permanent resident status on a conditional basis under this
section until the requirements of section 202 are satisfied.
(3) Withdrawal of application.--The Secretary of Homeland
Security shall, upon receipt of a request to withdraw an
application for adjustment of status under this section, cease
processing of the application and close the case. Withdrawal of
the application under this subsection shall not prejudice any
future application filed by the applicant for any immigration
benefit under this Act or under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq).
TITLE II--GENERAL PROVISIONS
SEC. 201. DEFINITIONS.
(a) In General.--In this Act:
(1) In general.--Except as otherwise specifically provided,
any term used in this Act that is used in the immigration laws
shall have the meaning given such term in the immigration laws.
(2) Disability.--The term ``disability'' has the meaning
given such term in section 3(1) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102(1)).
(3) Federal poverty line.--The term ``Federal poverty line''
has the meaning given such term in section 213A(h) of the
Immigration and Nationality Act (8 U.S.C. 1183a).
(4) Immigration laws.--The term ``immigration laws'' has the
meaning given such term in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).
(5) Secretary.--Except as otherwise specifically provided,
the term ``Secretary'' means the Secretary of Homeland
Security.
(6) Uniformed services.--The term ``Uniformed Services'' has
the meaning given the term ``uniformed services'' in section
101(a) of title 10, United States Code.
(b) Treatment of Expunged Convictions.--For purposes of adjustment of
status under this Act, the terms ``convicted'' and ``conviction'', as
used in sections 212 and 244 of the Immigration and Nationality Act (8
U.S.C. 1182, 1254a), do not include a judgment that has been expunged
or set aside, that resulted in a rehabilitative disposition, or the
equivalent.
SEC. 202. SUBMISSION OF BIOMETRIC AND BIOGRAPHIC DATA; BACKGROUND
CHECKS.
(a) Submission of Biometric and Biographic Data.--The Secretary may
not grant an alien adjustment of status under this Act unless the alien
submits biometric and biographic data, in accordance with procedures
established by the Secretary. The Secretary shall provide an
alternative procedure for aliens who are unable to provide such
biometric or biographic data because of a physical impairment.
(b) Background Checks.--The Secretary shall use biometric,
biographic, and other data that the Secretary determines appropriate to
conduct security and law enforcement background checks and to determine
whether there is any criminal, national security, or other factor that
would render the alien ineligible for adjustment of status under this
Act. The status of an alien may not be adjusted unless security and law
enforcement background checks are completed to the satisfaction of the
Secretary.
SEC. 203. LIMITATION ON REMOVAL; APPLICATION AND FEE EXEMPTION; WAIVER
OF GROUNDS FOR INADMISSIBILITY AND OTHER CONDITIONS
ON ELIGIBLE INDIVIDUALS.
(a) Limitation on Removal.--An alien who appears to be prima facie
eligible for relief under this Act shall be given a reasonable
opportunity to apply for such relief and may not be removed until,
subject to section 206(c), a final decision establishing ineligibility
for relief is rendered.
(b) Application.--An alien present in the United States who has been
ordered removed or has been permitted to depart voluntarily from the
United States may, notwithstanding such order or permission to depart,
apply for adjustment of status under this Act. Such alien shall not be
required to file a separate motion to reopen, reconsider, or vacate the
order of removal. If the Secretary approves the application, the
Secretary shall cancel the order of removal. If the Secretary renders a
final administrative decision to deny the application, the order of
removal or permission to depart shall be effective and enforceable to
the same extent as if the application had not been made, only after all
available administrative and judicial remedies have been exhausted.
(c) Fee Exemption.--An applicant may be exempted from paying an
application fee required under this Act if the applicant--
(1) is younger than 18 years of age;
(2) received total income, during the 12-month period
immediately preceding the date on which the applicant files an
application under this Act, that is less than 150 percent of
the Federal poverty line;
(3) is in foster care or otherwise lacks any parental or
other familial support; or
(4) cannot care for himself or herself because of a serious,
chronic disability.
(d) Waiver of Grounds of Inadmissibility.--
(1) In general.--Except as provided in paragraph (2), with
respect to any benefit under this Act, and in addition to any
waivers that are otherwise available, the Secretary may waive
the grounds of inadmissibility under paragraph (1),
subparagraphs (A), (C), and (D) of paragraph (2), subparagraphs
(D) through (G) of paragraph (6), or paragraph (10)(D) of
section 212(a) of the Immigration and Nationality Act (8 U.S.C.
1182(a)) for humanitarian purposes, for family unity, or
because the waiver is otherwise in the public interest.
(2) Exception.--The Secretary may not waive a ground
described in paragraph (1) if such inadmissibility is based on
a conviction or convictions, and such conviction or convictions
would otherwise render the alien ineligible under section
244(c)(2)(B) of the Immigration and Nationality Act (8 U.S.C.
1254a(c)(2)(B)).
(e) Advance Parole.--During the period beginning on the date on which
an alien applies for adjustment of status under this Act and ending on
the date on which the Secretary makes a final decision regarding such
application, the alien shall be eligible to apply for advance parole.
Section 101(g) of the Immigration and Nationality Act (8 U.S.C.
1101(g)) shall not apply to an alien granted advance parole under this
section.
(f) Employment.--An alien whose removal is stayed pursuant to this
Act, or who has pending an application under this Act, shall, upon
application to the Secretary, be granted an employment authorization
document.
SEC. 204. DETERMINATION OF CONTINUOUS PRESENCE.
(a) Effect of Notice to Appear.--Any period of continuous physical
presence in the United States of an alien who applies for adjustment of
status under this Act shall not terminate when the alien is served a
notice to appear under section 239(a) of the Immigration and
Nationality Act (8 U.S.C. 1229(a)).
(b) Treatment of Certain Breaks in Presence.--
(1) In general.--Except as provided in paragraphs (2) and
(3), an alien shall be considered to have failed to maintain
continuous physical presence in the United States under this
Act if the alien has departed from the United States for any
period exceeding 90 days or for any periods, in the aggregate,
exceeding 180 days.
(2) Extensions for extenuating circumstances.--The Secretary
may extend the time periods described in paragraph (1) for an
alien who demonstrates that the failure to timely return to the
United States was due to extenuating circumstances beyond the
alien's control, including the serious illness of the alien, or
death or serious illness of a parent, grandparent, sibling, or
child of the alien.
(3) Travel authorized by the secretary.--Any period of travel
outside of the United States by an alien that was authorized by
the Secretary may not be counted toward any period of departure
from the United States under paragraph (1).
(c) Waiver of Physical Presence.--With respect to aliens who were
removed or departed the United States on or after January 20, 2017, and
who were continuously physically present in the United States for at
least 3 years prior to such removal or departure, the Secretary may, as
a matter of discretion, waive the physical presence requirement under
section 101(a)(2) for humanitarian purposes, for family unity, or
because a waiver is otherwise in the public interest. The Secretary, in
consultation with the Secretary of State, shall establish a procedure
for such aliens to apply for relief under section 101 from outside the
United States if they would have been eligible for relief under such
section, but for their removal or departure.
SEC. 205. EXEMPTION FROM NUMERICAL LIMITATIONS.
Nothing in this Act or in any other law may be construed to apply a
numerical limitation on the number of aliens who may be granted
permanent resident status under this Act.
SEC. 206. AVAILABILITY OF ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) Administrative Review.--Not later than 30 days after the date of
the enactment of this Act, the Secretary shall provide to aliens who
have applied for adjustment of status under this Act a process by which
an applicant may seek administrative appellate review of a denial of an
application for adjustment of status, or a revocation of such status.
(b) Judicial Review.--Notwithstanding any other provision of law, an
alien may seek judicial review of a denial of an application for
adjustment of status, or a revocation of such status, under this Act in
the United States district court with jurisdiction over the alien's
residence.
(c) Stay of Removal.--
(1) In general.--Except as provided in paragraph (2), an
alien seeking administrative or judicial review under this Act
may not be removed from the United States until a final
decision is rendered establishing that the alien is ineligible
for adjustment of status under this Act.
(2) Exception.--The Secretary may remove an alien described
in paragraph (1) pending judicial review if such removal is
based on criminal or national security grounds. Such removal
does not affect the alien's right to judicial review under this
Act. The Secretary shall promptly return a removed alien if a
decision to deny an application for adjustment of status under
this Act, or to revoke such status, is reversed.
SEC. 207. DOCUMENTATION REQUIREMENTS.
(a) Documents Establishing Identity.--An alien's application for
permanent resident status under this Act may include, as evidence of
identity, the following:
(1) A passport or national identity document from the alien's
country of origin that includes the alien's name and the
alien's photograph or fingerprint.
(2) The alien's birth certificate and an identity card that
includes the alien's name and photograph.
(3) A school identification card that includes the alien's
name and photograph, and school records showing the alien's
name and that the alien is or was enrolled at the school.
(4) A Uniformed Services identification card issued by the
Department of Defense.
(5) Any immigration or other document issued by the United
States Government bearing the alien's name and photograph.
(6) A State-issued identification card bearing the alien's
name and photograph.
(7) Any other evidence determined to be credible by the
Secretary.
(b) Documents Establishing Continuous Physical Presence.--An alien's
application for permanent resident status under this Act may include,
as evidence that the alien has been continuously physically present in
the United States, as required under section 101(a)(2), the following:
(1) Passport entries, including admission stamps on the
alien's passport.
(2) Any document from the Department of Justice or the
Department of Homeland Security noting the alien's date of
entry into the United States.
(3) Records from any educational institution the alien has
attended in the United States.
(4) Employment records of the alien that include the
employer's name and contact information.
(5) Records of service from the Uniformed Services.
(6) Official records from a religious entity confirming the
alien's participation in a religious ceremony.
(7) A birth certificate for a child who was born in the
United States.
(8) Hospital or medical records showing medical treatment or
hospitalization, the name of the medical facility or physician,
and the date of the treatment or hospitalization.
(9) Automobile license receipts or registration.
(10) Deeds, mortgages, or rental agreement contracts.
(11) Rent receipts or utility bills bearing the alien's name
or the name of an immediate family member of the alien, and the
alien's address.
(12) Tax receipts;
(13) Insurance policies.
(14) Remittance records, including copies of money order
receipts sent in or out of the country.
(15) Travel records.
(16) Dated bank transactions.
(17) Two or more sworn affidavits from individuals who are
not related to the alien who have direct knowledge of the
alien's continuous physical presence in the United States, that
contain--
(A) the name, address, and telephone number of the
affiant; and
(B) the nature and duration of the relationship
between the affiant and the alien.
(18) Any other evidence determined to be credible by the
Secretary.
(c) Documents Establishing Exemption From Application Fees.--An
alien's application for permanent resident status under this Act may
include, as evidence that the alien is exempt from an application fee
under section 203(c), the following:
(1) Documents to establish age.--To establish that an alien
meets an age requirement, the alien may provide proof of
identity, as described in subsection (a), that establishes that
the alien is younger than 18 years of age.
(2) Documents to establish income.--To establish the alien's
income, the alien may provide--
(A) employment records or other records of earned
income, including records that have been maintained by
the Social Security Administration, the Internal
Revenue Service, or any other Federal, State, or local
government agency;
(B) bank records; or
(C) at least 2 sworn affidavits from individuals who
are not related to the alien and who have direct
knowledge of the alien's work and income that contain--
(i) the name, address, and telephone number
of the affiant; and
(ii) the nature and duration of the
relationship between the affiant and the alien.
(3) Documents to establish foster care, lack of familial
support, or serious, chronic disability.--To establish that the
alien is in foster care, lacks parental or familial support, or
has a serious, chronic disability, the alien may provide at
least 2 sworn affidavits from individuals who are not related
to the alien and who have direct knowledge of the circumstances
that contain--
(A) a statement that the alien is in foster care,
otherwise lacks any parental or other familiar support,
or has a serious, chronic disability, as appropriate;
(B) the name, address, and telephone number of the
affiant; and
(C) the nature and duration of the relationship
between the affiant and the alien.
(d) Authority to Prohibit Use of Certain Documents.--If the Secretary
determines, after publication in the Federal Register and an
opportunity for public comment, that any document or class of documents
does not reliably establish identity or that permanent resident status
under this Act is being obtained fraudulently to an unacceptable
degree, the Secretary may prohibit or restrict the use of such document
or class of documents.
SEC. 208. RULE MAKING.
(a) In General.--Not later than 90 days after the date of the
enactment of this Act, the Secretary shall publish in the Federal
Register interim final rules implementing this Act, which shall allow
eligible individuals to immediately apply for relief under section 101.
Notwithstanding section 553 of title 5, United States Code, the
regulation shall be effective, on an interim basis, immediately upon
publication, but may be subject to change and revision after public
notice and opportunity for a period of public comment. The Secretary
shall finalize such rules not later than 180 days after the date of
publication.
(b) Paperwork Reduction Act.--The requirements under chapter 35 of
title 44, United States Code, (commonly known as the ``Paperwork
Reduction Act'') shall not apply to any action to implement this Act.
SEC. 209. CONFIDENTIALITY OF INFORMATION.
(a) In General.--The Secretary may not disclose or use information
provided in applications filed under this Act (including information
provided during administrative or judicial review) for the purpose of
immigration enforcement.
(b) Referrals Prohibited.--The Secretary, based solely on information
provided in an application for adjustment of status under this Act
(including information provided during administrative or judicial
review), may not refer an applicant to U.S. Immigration and Customs
Enforcement, U.S. Customs and Border Protection, or any designee of
either such entity .
(c) Limited Exception.--Notwithstanding subsections (a) and (b),
information provided in an application for adjustment of status under
this Act may be shared with Federal security and law enforcement
agencies--
(1) for assistance in the consideration of an application for
adjustment of status under this Act;
(2) to identify or prevent fraudulent claims;
(3) for national security purposes; or
(4) for the investigation or prosecution of any felony not
related to immigration status.
(d) Penalty.--Any person who knowingly uses, publishes, or permits
information to be examined in violation of this section shall be fined
not more than $10,000.
SEC. 210. GRANT PROGRAM TO ASSIST ELIGIBLE APPLICANTS.
(a) Establishment.--The Secretary of Homeland Security shall
establish, within U.S. Citizenship and Immigration Services, a program
to award grants, on a competitive basis, to eligible nonprofit
organizations that will use the funding to assist eligible applicants
under this Act by providing them with the services described in
subsection (b).
(b) Use of Funds.--Grant funds awarded under this section shall be
used for the design and implementation of programs that provide--
(1) information to the public regarding the eligibility and
benefits of permanent resident status under this Act,
particularly to individuals potentially eligible for such
status;
(2) assistance, within the scope of authorized practice of
immigration law, to individuals submitting applications for
adjustment of status under this Act, including--
(A) screening prospective applicants to assess their
eligibility for such status;
(B) completing applications and petitions, including
providing assistance in obtaining the requisite
documents and supporting evidence; and
(C) providing any other assistance that the Secretary
or grantee considers useful or necessary to apply for
adjustment of status under this Act; and
(3) assistance, within the scope of authorized practice of
immigration law, and instruction, to individuals--
(A) on the rights and responsibilities of United
States citizenship;
(B) in civics and English as a second language;
(C) in preparation for the General Education
Development test; and
(D) in applying for adjustment of status and United
States citizenship.
(c) Authorization of Appropriations.--
(1) Amounts authorized.--There are authorized to be
appropriated such sums as may be necessary for each of the
fiscal years 2020 through 2030 to carry out this section.
(2) Availability.--Any amounts appropriated pursuant to
paragraph (1) shall remain available until expended.
SEC. 211. PROVISIONS AFFECTING ELIGIBILITY FOR ADJUSTMENT OF STATUS.
An alien's eligibility to be lawfully admitted for permanent
residence under this Act shall not preclude the alien from seeking any
status under any other provision of law for which the alien may
otherwise be eligible.
Purpose and Summary
H.R. 2821, the ``American Promise Act of 2019,'' addresses
an immediate humanitarian crisis potentially affecting hundreds
of thousands of immigrants who fled to the United States to
escape war, famine, natural disasters, and other life-
threatening calamities. The bill accomplishes this goal by
establishing a program for certain individuals who qualified
for Temporary Protected Status (TPS) or Deferred Enforced
Departure (DED) on January 1, 2017 to apply for lawful
permanent resident (LPR) status. Derived from Title II of H.R.
6, the ``American Dream and Promise Act,'' H.R. 2821 requires
the Secretary of Homeland Security or the Attorney General to
grant LPR status to individuals who apply for such status not
later than three years after the date of enactment of the Act
and who meet the eligibility criteria specified in the bill.
H.R. 2821 also prohibits the Secretary from granting LPR status
to individuals who are inadmissible to the United States under
specified provisions of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. Sec. 1182(a)), as well as individuals
who have engaged in conduct since January 1, 2017 that would
render them ineligible for TPS or DED.
Background and Need for the Legislation
I. TEMPORARY PROTECTED STATUS
The Immigration and Nationality Act (INA) authorizes the
Secretary of Homeland Security to grant TPS to foreign
nationals in the United States from countries that have
experienced armed conflict, natural disaster, or other
extraordinary circumstances that prevent the safe return of its
nationals.\1\ A country can be designated for TPS for an
initial period of six to 18 months, and the designation can be
extended if the country continues to experience conditions
warranting the designation. TPS applicants are subject to most
grounds of inadmissibility and may not be granted TPS if they
have been convicted of an inadmissible offense, any felony
offense, or any two misdemeanor offenses in the United States.
Applicants are also ineligible if they are deemed a threat to
national security or have engaged in the persecution of others.
Individuals granted TPS are eligible for work authorization and
are not subject to removal if they maintain TPS status.
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\1\See generally INA Sec. 244; 8 U.S.C. Sec. 1254 (2019).
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Since 1990, when the TPS provisions were enacted, a total
of 21 countries (or parts of countries) have been designated
for TPS. At present, ten countries hold TPS designations: El
Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South
Sudan, Sudan, Syria, and Yemen.\2\ An estimated 320,000
individuals from these ten countries are currently in the
United States in TPS status.\3\ In a number of these nations,
conditions have remained deteriorated for so long that many TPS
holders have lawfully remained in the United States for
decades.
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\2\See U.S. Citizenship and Immigration Services, Temporary
Protected Status, Dep't of Homeland Security (identifying countries
currently designated for TPS), https://www.uscis.gov/humanitarian/
temporary-protected-status.
\3\Nicole Prchal Svajlenka, Angie Bautista-Chavez, & Laura Munoz
Lopez, TPS Holders Are Integral Members of the U.S. Economy and
Society, Center for American Progress (Oct. 20, 2017), https://
www.americanprogress.org/issues/immigration/news/2017/10/20/440400/tps-
holders-are-integral-members-of-the-u-s-economy-and-society/.
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Notwithstanding compelling evidence that conditions in
these countries remain dire, the Trump Administration
terminated TPS designations for six of them over the past year,
throwing the lives and futures of more than 300,000 people into
turmoil.\4\ In doing so, the Administration ignored warnings
from senior U.S. diplomats that termination would destabilize
Central America and the Caribbean, which could potentially
trigger a new surge of unauthorized immigration.\5\ Through
cables to Administration officials, diplomats explained that
TPS recipients send remittances home that spur job creation and
reduce pressure to emigrate.\6\
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\4\Nick Miroff et al., U.S. Embassy Cables Warned Against Expelling
300,000 Immigrants. Trump Officials Did it Anyway, Wash. Post (May 8,
2018), https://www.washingtonpost.com/world/national-security/us-
embassy-cables-warned-against-expelling-300000-immigrants-trump-
officials-did-it-anyway/2018/05/08/065e5702-4fe5-11e8-b966-
bfb0da2dad62_story.html?utm_term=
.bbdbfea9dcb1.
\5\Id.
\6\Id.
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Last year, a federal court in Ramos v. Nielsen granted a
preliminary injunction preventing the Administration from
proceeding with the termination of TPS for El Salvador, Haiti,
Nicaragua, and Sudan, finding that the plaintiffs had made a
substantial showing that the Administration's decisions had
violated the Administrative Procedure Act.\7\ On October 31,
2018, DHS announced that affected TPS beneficiaries would
retain TPS status and its associated benefits for the duration
of the preliminary injunction, unless an individual's TPS
status was withdrawn due to ineligibility.\8\ On March 12,
2019, in accordance with a court-approved stipulation to stay
proceedings, DHS also extended TPS for Nepal and Honduras,
pending a final disposition or other court order in Ramos.\9\
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\7\Ramos v. Nielsen, Case No. 18-cv-01554-EMC (N.D. Cal. 2017).
\8\U.S. Dep't of Homeland Security, Continuation of Documentation
for Beneficiaries of Temporary Protected Status Designations for Sudan,
Nicaragua, Haiti, and El Salvador, 83 Fed. Reg. 54764 (Oct. 31, 2018).
On April 11, 2019, a second court enjoined the termination of TPS for
Haiti. Saget v. Trump, Case No. 18-cv-01599 (E.D.N.Y 2018).
\9\Bhattarai v. Nielsen, No. 19-cv-731 (N.D. Cal Mar. 12, 2019).
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II. DEFERRED ENFORCEMENT DEPARTURE
In accordance with his constitutional authority to conduct
foreign relations, the President has the discretion to grant
DED to foreign nationals for foreign policy reasons.\10\ DED is
a temporary and discretionary stay of removal that is similar
in many respects to TPS except that it lacks explicit statutory
basis.\11\ In 1992, President George H. W. Bush granted DED to
approximately 190,000 people following the expiration of El
Salvador's initial TPS designation.\12\ In 2007, President
George W. Bush granted DED to Liberian nationals following the
termination of TPS for Liberia, and this designation was
extended several times by President Barack Obama.\13\
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\10\See Jill H. Wilson, Temporary Protected Status: Overview and
Current Issues, Cong. Res. Serv. (Oct. 10, 2018), https://fas.org/sgp/
crs/homesec/RS20844.pdf.
\11\Id.
\12\Id.
\13\Id.
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On March 27, 2018, President Trump announced the
termination of DED for Liberia, effective March 31, 2019.\14\
Subsequently, the President on March 28, 2019 signed a last-
minute reprieve for Liberia, granting an additional extension
of the ``wind-down'' period until March 30, 2020.\15\ An
estimated 840 Liberians are living in the United States with
DED and work authorization, with many having lived here for
almost three decades.\16\
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\14\Id.
\15\President Donald J. Trump, Extension of Deferred Enforced
Departure For Liberians, Presidential Memorandum (Mar. 28, 2019),
https://www.whitehouse.gov/presidential-actions/memorandum-extension-
deferred-enforced-departure-liberians/.
\16\See Jill H. Wilson, Temporary Protected Status: Overview and
Current Issues, Cong. Res. Serv. (Oct. 10, 2018), https://fas.org/sgp/
crs/homesec/RS20844.pdf.
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III. THE ECONOMIC BENEFITS OF PROVIDING PERMANENT RELIEF TO TPS AND DED
RECIPIENTS
In addition to the humanitarian effects, the failure to
permanently protect TPS and DED holders would destabilize the
economy and local communities by removing a long-term and
reliable workforce from key industries. TPS recipients have
lived in the United States for an average of 19 years, are
employed at high rates, and have family relationships in the
United States that include nearly 275,000 U.S. citizen
children.\17\ TPS holders live in every region of the United
States, with the largest populations in California, Texas,
Florida, New York, Virginia, and Maryland.\18\
---------------------------------------------------------------------------
\17\Nicole Prchal Svajlenka et al., TPS Holders are Integral
Members of the U.S. Economy and Society, Center for American Progress
(Oct. 20, 2017), https://www.americanprogress.org/issues/immigration/
news/2017/10/20/440400/tps-holders-are-integral-members-of-the-u-s-
economy-and-society/.
\18\Robert Warren et al., A Statistical and Demographic Profile of
the U.S. Temporary Protected Status Populations from El Salvador,
Honduras, and Haiti, Center for Migration Studies, Journal on Migration
and Human Security (rev. Aug. 2017), https://journals.sagepub.com/doi/
pdf/10.1177/233150241700500302.
---------------------------------------------------------------------------
The Center for Migration Studies has found that TPS
recipients from El Salvador, Honduras, and Haiti are employed
at very high rates (81 to 88 percent) in a variety of
industries that often struggle to find sufficient U.S.
workers.\19\ Indeed, TPS holders are filling critical workforce
gaps in industries central to economic growth and community
development, including construction, food service, and
landscaping.\20\ An additional 11 percent of TPS holders are
self-employed and have likely created jobs for American workers
as a result.\21\
---------------------------------------------------------------------------
\19\Id.
\20\For example, with a low 4.1 percent unemployment rate, the
construction industry had roughly 278,000 job openings in September
2018. The accommodation and food services industry, with a 5.3 percent
unemployment rate, had nearly 961,000 job openings. American
Immigration Council, Workers with Temporary Protected Status in Key
Industries and States (Jan. 9, 2019), https://
www.americanimmigrationcouncil.org/research/workers-temporary-
protected-status-key-industries-and-states.
\21\Robert Warren and Donald Kerwin, A Statistical and Demographic
Profile of the U.S. Temporary Protected Status Populations from El
Salvador, Honduras, and Haiti, Center for Migration Studies, JMHS
Volume 5 Number 3 (2017), https://journals.sagepub.com/doi/pdf/10.1177/
233150241700500302.
---------------------------------------------------------------------------
TPS holders make significant contributions to the U.S.
economy not only through their participation in the workforce,
but also through consumer spending and tax revenue. For
example, one third of the 206,000 TPS households from El
Salvador, Honduras, and Haiti have mortgages.\22\ More broadly,
according to one report, losing TPS workers would result in a
$4.5 billion loss to GDP annually.\23\ Social Security and
Medicare would take a $6.9 billion loss, the cost of
deportation would be $3.1 billion, and the loss of TPS workers
would cost industries $967 million.\24\
---------------------------------------------------------------------------
\22\Id.
\23\Amanda Baran, Jose Magana-Salgado, Tom K. Wong, Economic
Contributions by Salvadoran, Honduran, and Haitian TPS Holders,
Immigrant Legal Resource Center (Apr. 2017), https://www.ilrc.org/
sites/default/files/resources/2017-04-18_economic_contributions_by_
salvadoran_honduran_and_haitian_tps_holders.pdf.
\24\American Immigration Council, Workers with Temporary Protected
Status in Key Industries and States (Jan. 9, 2019), https://
www.americanimmigrationcouncil.org/research/workers-temporary-
protected-status-key-industries-and-states.
---------------------------------------------------------------------------
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to develop H.R.
6 and H.R. 2821: ``Protecting Dreamers and TPS Recipients,''
held before the full Committee on March 6. 2019. The Committee
heard testimony from: Jin Park, a Korean national DACA
recipient, Harvard graduate, and Rhodes Scholar who came to the
United States at the age of seven; Yazmin Irazoqui Ruiz, a
Mexican national DACA recipient and summa cum laude graduate of
the University of New Mexico who came to the United States at
the age of three and is currently attending medical school;
Yatta Kiazolu, a Liberian national DED holder who has lived in
the United States for 22 years and is currently enrolled in a
PhD program at the University of California, Los Angeles; Jose
Palma, a Salvadoran national TPS recipient who is married to
another TPS recipient, has four U.S. citizen children, and
serves as the National Coordinator of the National TPS
Alliance; Donald Graham, former owner of The Washington Post
and co-founder of TheDream.US, which provides scholarships to
thousands of highly motivated Dreamers and TPS recipients;
Catholic Bishop Mario Dorsonville, Auxiliary Bishop of the
Archdiocese of Washington, a naturalized immigrant from
Colombia, and the incoming Migration Chairman of the U.S.
Conference of Catholic Bishops; Hilario Yanez, a DACA recipient
and a graduate of the University of Houston; and Andrew R.
Arthur, a former immigration judge and a Resident Fellow at the
Center for Immigration Studies.
Witnesses shared their personal stories and highlighted the
need for a legislative solution by exploring the critical
contributions of TPS and DED recipients, many of whom have
lived lawfully in the United States for more than 20 years
while building their lives, raising their families, and
contributing to our economy. Witnesses also noted the personal
and community-based impacts resulting from the Administration's
decision to terminate the TPS and DED designations of numerous
countries.
Committee Consideration
On May 22, 2019, the Committee met in open session and
ordered the bill, H.R. 2821, favorably reported with an
amendment in the nature of a substitute, by a rollcall vote of
20 to 9, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 2821:
1. An amendment by Mr. Cline to amend section 101 to change
the date on which individuals must have been eligible for TPS
or DED from ``January 1, 2017'' to ``January 1, 2010,'' was
defeated by a rollcall vote of 9 to 20.
2. Motion to report H.R. 2821, as amended, favorably was
agreed to by a rollcall vote of 20 to 9.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee Estimate of Budgetary Effects
In compliance with clause 3(d) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the effects on the budget of the bill, H.R. 2821, as
reported. The Committee agrees with the estimate prepared by
the Congressional Budget Office, which is included below.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives, the Committee adopts as its own the
estimate of new budget authority, entitlement authority, or tax
expenditures or revenues contained in the cost estimate
prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2821, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 30, 2019.
Re H.R. 2821 the American Promise Act of 2019.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office and
staff of the Joint Committee on Taxation (JCT) have completed
an estimate of the direct spending and revenue effects of H.R.
2821, the American Promise Act of 2019, as ordered reported by
the House Committee on the Judiciary on May 22, 2019. On net,
CBO and JCT estimate that enacting H.R. 2821 would increase
budget deficits by $8.3 billion over the 2020-2029 period; on-
budget deficits would increase by $7.9 billion, and off-budget
deficits would increase by $0.4 billion over that period.
Because enacting the bill would affect direct spending and
revenues, pay-as-you-go procedures apply.\1\ The pay-as-you-go
effects are equal to the change in on-budget deficits (see
Table 1).
---------------------------------------------------------------------------
\1\A relatively small number of people would be eligible for LPR
status under both H.R. 2820 (the Dream Act) and H.R. 2821 (the American
Promise Act), both of which were ordered reported by the House
Committee on the Judiciary on May 22, 2019. Consequently, if the
provisions of the two bills were enacted as a single bill, the
budgetary effects for that combined bill would be smaller than the sum
of the budgetary effects of the two bills. CBO has not estimated the
budgetary effects of a combined bill.
---------------------------------------------------------------------------
H.R. 2821 would allow aliens who, as of January 1, 2017,
had or were otherwise eligible for Temporary Protected Status
(TPS) or were eligible for Deferred Enforced Departure (DED) to
receive lawful permanent resident (LPR) status under certain
conditions.
CBO estimates that H.R. 2821 would provide lawful
immigration status and work authorization to nearly half a
million people who otherwise would be physically present in the
United States without such legal authority.\2\
---------------------------------------------------------------------------
\2\The Administration has proposed to terminate TPS and DED for
nationals of several countries. That policy is currently subject to a
nationwide injunction. Spending and revenues in CBO's baseline reflect
the expectation that the injunction will eventually be lifted and the
Administration will implement its proposed policy.
---------------------------------------------------------------------------
Enacting the bill would affect direct spending because LPR
status confers eligibility for federal benefits--health
insurance subsidies and benefits under Medicaid and also under
the Supplemental Nutrition Assistance Program, among others--
provided that those applicants meet the other eligibility
requirements for those programs.
Enacting H.R. 2821 also would affect federal revenues
because the increase in the number of workers with employment
authorization would affect payroll taxes and individual and
corporate income taxes. Some newly authorized workers also
would become eligible for refundable tax credits (included in
the spending total below). In addition, some of the fees
established under the bill would be classified as revenues in
the budget.
CBO and JCT estimate that enacting H.R. 2821 would increase
direct spending by $8.8 billion over the 2020-2029 period. Over
that same period, CBO and JCT estimate that the bill would
increase revenues, on net, by $0.5 billion--a decline in on-
budget revenues of $0.4 billion and an increase in off-budget
revenues of $1.0 billion.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is David
Rafferty.
Sincerely,
Keith Hall,
Director.
Enclosure.
TABLE 1.--H.R. 2821, THE AMERICAN PROMISE ACT OF 2019
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
----------------------------------------------------------------------------------------------------------------------------------------
2019- 2019-
2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2024 2029
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Changes In Direct Spending (Outlays)
On-Budget:
Health Insurance Subsidiesa............................ 0 0 0 0 565 625 585 520 535 605 640 1,190 4,075
Medicaid and CHIP...................................... 0 0 0 0 -5 10 90 205 255 270 210 5 1,035
Refundable Tax Creditsb................................ 0 0 0 0 50 75 95 105 115 115 110 125 665
Medicare............................................... 0 0 0 0 10 30 50 80 115 160 210 40 655
SNAP................................................... 0 * 5 5 5 5 45 115 130 130 130 20 570
DHS Fees and Spending.................................. 0 165 230 -25 -25 * -5 -5 5 * * 345 340
Supplemental Security Income........................... 0 0 0 0 * * 5 20 25 35 35 * 120
Higher Education Assistance............................ 0 * * 1 3 3 2 2 2 1 * 7 14
Subtotal........................................... 0 165 235 -19 603 748 867 1,042 1,182 1,316 1,335 1,732 7,474
Off-Budget:
Social Security........................................ 0 0 0 0 70 100 135 180 230 285 345 170 1,345
Total.............................................. 0 165 235 -19 673 848 1,002 1,222 1,412 1,601 1,680 1,902 8,819
Changes in Revenues
On-Budget:
Income and Medicare Taxes.............................. 0 0 0 0 -40 -35 -15 -85 -85 -85 -85 -75 -430
Health Insurance Subsidiesa............................ 0 0 0 0 -35 -40 -40 -50 -60 -65 -65 -75 -355
DHS Revenues........................................... 0 115 190 40 0 0 0 0 0 0 0 345 345
Subtotal........................................... 0 115 190 40 -75 -75 -55 -135 -145 -150 -150 195 -440
Off-Budget:
Social Security........................................ 0 0 0 0 80 115 140 150 155 155 155 195 950
Total.............................................. 0 115 190 40 5 40 85 15 10 5 5 390 510
Changes in Deficits (Negatives Indicate Increases in Deficits)
Total.................................................. 0 -50 -45 59 -668 -808 -917 -1,207 -1,402 -1,596 -1,675 -1,512 -8,309
On-Budget.......................................... 0 -50 -45 59 -678 -823 -922 -1,177 -1,327 -1,466 -1,485 -1,537 -7,914
Off-Budget......................................... 0 0 0 0 10 15 5 -30 -75 -130 -190 25 -395
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The change in direct spending would affect budget authority by similar amounts; CHIP = Children's Health Insurance Program; DHS = Department of Homeland Security; SNAP = Supplemental Nutrition
Assistance Program; * = between -$500,000 and $500,000.
aIncludes cost-sharing subsidies and the outlays portion of premium assistance tax credits.
bRefundable tax credits include the outlay portion of the earned income and child tax credits,
Duplication of Federal Programs
No provision of H.R. 2821 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2821 establishes a program for certain individuals who
qualified for TPS or DED on January 1, 2017 to apply for lawful
permanent residence.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2821 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``American Promise Act of 2019''.
Title I. Treatment of Certain Nationals of Certain Countries Designated
for Temporary Protected Status or Deferred Enforcement
Departure.
Sec. 101. Adjustment of Status for Certain Nationals of
Certain Countries Designated for Temporary Protected Status or
Deferred Enforced Departure. Sections 101(a) and 101(b) direct
the Secretary of Homeland Security or the Attorney General to
cancel the removal and adjust the status of individuals who:
(1) are nationals of a foreign state with a TPS or
DED designation on January 1, 2017;
(2) had or were otherwise eligible for TPS or DED
relief on that date and have not since engaged in
conduct that would render them ineligible for such
relief; and
(3) have been continuously physically present for
three years before the date enactment.
Such individuals must also demonstrate that they are not
inadmissible on the following grounds under section 212(a)(2)
of the Immigration and Nationality Act (8 U.S.C.
Sec. 1182(a)(2)): having health-related concerns; having
engaged in criminal activity; posing a threat to national
security; having been a stowaway; having engaged in alien
smuggling; being subject to certain civil penalties; having
engaged in student visa abuse; being ineligible for
citizenship; having engaged in polygamy, international child
abduction, or unlawful voting; or renouncing U.S. citizenship
to avoid taxation. In addition to the criminal inadmissibility
bars, TPS and DED eligibility requires that individuals not be
convicted of any felony offense or any two misdemeanor
offenses. Individuals who are eligible for adjustment of status
under the Act must apply within three years of the date of
enactment.
Section 101(c)(1) allows the Secretary to impose a
reasonable fee on applications for adjustment of status under
the Act, not to exceed $1,140.
Section 101(c)(2) prohibits the granting of an adjustment
of status application under the Act until background check
requirements are satisfied.
Section 101(c)(3) allows an applicant to withdraw an
application without prejudice.
Title II. General Provisions.
Sec. 201. Definitions. Section 201 defines the following
terms: ``Disability''; ``Federal Poverty Line''; ``Immigration
Laws''; ``Secretary''; ``Uniformed Services''; and ``Treatment
of Expunged Convictions''.
Sec. 202. Submission of Biometric and Biographic Data;
Background Checks. Section 202 requires all applicants to
provide biometric and biographic data and prohibits approval of
an application unless security and background checks are
completed to the Secretary of Homeland Security's satisfaction.
Sec. 203. Limitation on Removal; Application and Fee
Exemption; Waiver of Grounds for Inadmissibility and Other
Conditions on Eligible Individuals. Section 203(a) prohibits
the removal of an individual who appears to be prima facie
eligible for relief under the Act until a final decision
establishing ineligibility for relief is rendered.
Section 203(b) allows an individual who has been ordered
removed or granted voluntary departure to apply for adjustment
of status under the Act without having to file a motion to
reopen or other pleading with the immigration court. If the
application is approved, the Secretary shall cancel the order
of removal. If the Secretary renders a final decision to deny
the application, the removal or voluntary departure order shall
remain in effect.
Section 203(c) provides for a fee exemption for applicants
who: (1) are younger than 18 years of age; (2) demonstrate
income at less than 150 percent of the federal poverty line;
(3) are in foster care or lack familial support; or (4) cannot
care for themselves due to a serious, chronic disability.
Section 203(d) provides the Secretary with discretionary
authority to waive the following grounds of inadmissibility
under section 212(a)(2) of the Immigration and Nationality Act
(8 U.S.C. Sec. 1182(a)(2)) for humanitarian purposes, family
unity, or because a waiver is otherwise in the public interest:
health-related grounds, certain criminal offenses, being a
stowaway, alien smuggling, student visa abuse, or unlawful
voting. The Secretary cannot waive the grounds described in
this paragraph if it was based on a conviction that would make
the individual ineligible for TPS under other provisions of the
Act.
Section 203(e) allows applicants for adjustment of status
under the Act to apply for advance parole (advance permission
to return to the United States after travel abroad).
Section 203(f) allows individuals to apply for work
authorization if their removal is stayed or if they have an
application pending.
Sec. 204. Determination of Continuous Presence. Section
204(a) states that any period of continuous presence does not
terminate when an individual is served with a notice to appear
pursuant to section 239(a) of the Immigration and Nationality
Act (8 U.S.C. 1229(a)).
Section 204(b) states that an individual will have failed
to maintain continuous physical presence if the individual
departed the United States for any period exceeding 90 days or
180 days in the aggregate. Travel authorized by the Secretary
is excluded from consideration, and time spent outside the
United States that exceeds these limitations may be excused for
extenuating circumstances.
Section 204(c) allows the Secretary to waive--for
humanitarian purposes, family unity, or if otherwise in the
public interest--the physical presence requirement for an
individual who was removed or departed the United States on or
after January 20, 2017, and was continuously physically present
in the United States for three years prior to the removal or
departure. The Secretary is required to consult with the
Department of State and establish a procedure for individuals
to apply for relief from outside the United States if they
would have been eligible for adjustment of status but for their
removal or departure.
Sec. 205. Exemption from Numerical Limitations Section 205
states that there is no numerical limitation on the number of
people who may be granted permanent resident status under the
Act.
Sec. 206. Availability of Administrative and Judicial
Review. Section 206(a) directs the Secretary to create an
administrative review procedure within 30 days of enactment for
individuals whose applications are denied or whose status is
revoked.
Section 206(b) provides for judicial review in federal
district court for applicants who are denied or have had their
status revoked.
Section 206(c) states that applicants seeking
administrative or judicial review may not be removed until a
final decision on the application is rendered, except that an
individual may be removed on criminal or national security
grounds pending judicial review. An individual removed who
prevails on judicial review must be promptly returned to the
United States.
Sec. 207. Documentation Requirements. Section 207 sets
forth the types of documentation that applicants may submit as
proof of eligibility for relief under the Act in the following
categories: Documents Establishing Identity; Documents
Establishing Continuous Physical Presence; and Documents
Establishing Exemption from Application Fees.
Section 207(d) allows the Secretary to prohibit or restrict
the use of documents that are deemed unreliable for purposes of
establishing identity, as well as other documents if the
Secretary determines that relief under the Act is being
obtained fraudulently to an unacceptable degree.
Sec. 208. Rulemaking. Section 208 requires the Secretary to
publish interim regulations not later than 90 days after
enactment. Final regulations must be published 180 days after
the interim regulations are published.
Sec. 209. Confidentiality of Information. Section 209
prohibits the Secretary from: (1) disclosing or using
application information (including information provided during
administrative or judicial review) for immigration enforcement
purposes; or (2) referring applicants to U.S. Immigration and
Customs Enforcement or U.S. Customs and Border Protection, or
any designee of such agency, based solely on such information.
Information may be shared with federal security and law
enforcement agencies for assistance in the consideration of an
application, to identify or prevent fraud, for national
security purposes, or for the investigation or prosecution of
any felony not related to immigration status. A fine of up to
$10,000 shall be imposed upon any person who knowingly uses,
publishes or permits information to be examined in violation of
this section.
Sec. 210. Grant Program to Assist Eligible Applicants.
Section 210 authorizes appropriations and directs the Secretary
to establish a program to award competitive grants to nonprofit
organizations to provide services to eligible applicants
including but not limited to: providing information on
eligibility, screening prospective applicants for eligibility,
preparing and submitting applications and supporting
documentation, providing information on the rights and
responsibilities of U.S. citizenship, and providing instruction
to individuals in civics and English as a second language.
Sec. 211. Provisions Affecting Eligibility for Adjustment
of Status. Section 211 states that eligibility for relief under
the Act does not preclude an individual from seeking any other
status for which the individual might be eligible.
Dissenting Views
H.R. 2821 as reported by the Committee, takes what Congress
intended to be a mechanism to allow aliens in the United States
to remain in the U.S. when ``conditions in the country
temporarily prevent the country's nationals from returning
safely, or in certain circumstances, where the country is
unable to handle the return of its nationals adequately,''\1\
and turns it into a special path to citizenship for an unknown
number of individuals who were at one time eligible in the
United States for Temporaiy Protected Status (TPS). It also
provides green cards for aliens who were at one time eligible
for Deferred Enforced Departure (DED). Specifically, the groups
of aliens include the following:
---------------------------------------------------------------------------
\1\U.S. Citizenship and Immigration Services' website, https://
www.uscis.gov/humanitarian/temporary-protected-status.
---------------------------------------------------------------------------
The nearly 418,000 TPS holders currently in
the United States pursuant to the ten TPS designations
currently in effect;\2\
---------------------------------------------------------------------------
\2\See Chart 1.
---------------------------------------------------------------------------
Aliens currently inside the United States
who were ``eligible,'' but never applied, for TPS under
one of the ten current designations;
Aliens outside the United States who were
``eligible,'' but never applied, for TPS under one of
the ten current designations;
Aliens inside the United States who received
TPS under one of the three designations President Obama
terminated (the terminations for Sierra Leone, Guinea,
and Liberia took effect in May 2017);
Aliens outside the United States who
received TPS under one of the three designations
President Obama terminated (the terminations for Sierra
Leone, Guinea, and Liberia took effect in May 2017);
Aliens inside the United States who were
``eligible,'' but never applied, for TPS under one of
the three designations President Obama terminated (the
terminations for Sierra Leone, Guinea, and Liberia took
effect in May 2017);
Aliens outside the United States who were
``eligible,'' but never applied, for TPS under one of
the three designations that President Obama terminated
(the terminations for Sierra Leone, Guinea, and Liberia
took effect in May 2017);
Alien recipients, whether still in the
United States or not, of Deferred Enforced Departure
for Liberians; and
Aliens, whether inside the United States or
not, who would have been ``eligible'' for Deferred
Enforced Departure for Liberians.
The Immigration and Nationality Act allows the DHS
Secretary to designate a country for TPS if there are
circumstances preventing the safe return of aliens to that
country, or if a country is temporarily unable to adequately
handle the return of its nationals.\3\
---------------------------------------------------------------------------
\3\8 U.S.C. Sec. 1254(b)(1).
---------------------------------------------------------------------------
The effect of a TPS designation is that nationals of the
designated country who are inside the United States on the date
of such designation, whether legally or illegally, are allowed
to apply to stay here and receive employment authorization. The
Pew Research Center has noted all but ``a small number'' of TPS
holders were in the country illegally at the time of their
country's designation.\4\
---------------------------------------------------------------------------
\4\Pew Research Center, More than 100,000 Haitian and Central
American Immigrants Face Decision on Their Status in the U.S., Nov. 18,
2017, at http://www.pewresearch.org/fact-tank/2017/11/08/more-than-
100000-haitian-and-central-american-immigrants-face-decision-on-their-
status-in-the-u-s/.
---------------------------------------------------------------------------
TPS is usually initially designated for a period of 18
months and then redesignated in 18-month increments after the
Secretary reviews the conditions in the country to determine
whether the conditions for the TPS designation continue. If the
Secretary determines the country no longer meets the conditions
for the TPS designation, the Secretary is required by the
statute to terminate the designation.\5\
---------------------------------------------------------------------------
\5\8 U.S.C. Sec. 1254(b)(3)(B).
---------------------------------------------------------------------------
At least 60 days before the expiration of the TPS
designation, or any extension thereof, the Secretary, after
consultations with appropriate Government agencies, must review
the conditions in a foreign state designated for TPS to
determine whether the conditions for the TPS designation
continue to be met and, if so, the length of an extension.\6\
If the Secretary determines the foreign state no longer meets
the conditions for the TPS designation, the Secretary must
terminate the designation. Such termination may not take effect
``earlier than 60 days after the date the Notice [of
termination] is published [in the Federal Register] or, if
later, the expiration of the most recent previous extension. .
. .''\7\
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\6\8 U.S.C. Sec. 1254a(b)(3)(A), (C).
\7\8 U.S.C. Sec. 1254a(b)(3)(B).
---------------------------------------------------------------------------
During the markup, Chairman Nadler stated, ``The President
opted to terminate these protections despite continuing
political instability and compelling evidence that social and
environmental conditions in those countries remain dire. . .
.'' Such a statement does not allow for the fact that the
relevant statute (8 U.S.C. 1254) requires a termination when
the conditions for designation are no longer in place. And it
implies that once a country is designated for TPS, the
designation can never be terminated unless the case is made
that the country is a relative paradise.
Upon review of TPS status for certain countries in
consultation with the State Department, DHS has indicated it
will not renew the TPS designations of Nepal, Sudan, Nicaragua,
Haiti, Honduras, and El Salvador, while extending the
designations for Yemen and Somalia.\8\ However, despite
findings by DHS that the temporary conditions existing at the
time of the designation are no longer in effect, nationwide
federal court injunctions have prohibited DHS from ending TPS
for nationals of these countries.\9\
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\8\USCIS Website, at https://www.uscis.gov/humanitarian/temporary-
protected-status.
\9\Ramos, et al V. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct
3, 2018); see also CASA de Maryland v. Trump, No. 18-cv-00845 (D. Md.
Nov. 29, 2018) (Enjoining the government from terminating TPS for El
Salvador, Sudan, Nicaragua, and Haiti), Bhattarai v. Nielsen, No. 19-
cv-731 (N.D. Cal) (preventing the government from terminating TPS for
Nepal and Honduras).
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Unfortunately, what was intended by Congress to be a
temporary protection has, over time, become a permanent,
automatically-renewed status, with some countries being rubber-
stamped for redesignation for decades. For instance, Nicaragua
was initially designated for TPS in 1999 due to Hurricane
Mitch, which struck the country in October 1998. And El
Salvador was initially designated in March 2001 based on a
series of earthquakes.
DED is a purely discretionary grant the President can use
based on his foreign policy powers to provide a deferral of
enforced departure for certain aliens. In 2007, President
George W. Bush provided DED for Liberians who had been in the
country under a previously-terminated TPS designation. DED was
subsequently extended by President Obama. On March 30, 2018,
President Trump issued a directive stating,\10\
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\10\Presidential Memorandum for the Secretary of State and the
Secretary of Homeland Security, Mar. 27, 2019, https://
www.whitehouse.gov/presidential-actions/memorandum-secretary-state-
secretary-homeland-security/.
. . . conditions in Liberia have improved. Liberia is
no longer experiencing armed conflict and has made
significant progress in restoring stability and
democratic governance. Liberia has also concluded
reconstruction from prior conflicts, which has
contributed significantly to an environment that is
able to handle adequately the return of its nationals.
The 2014 outbreak of Ebola Virus Disease caused a
tragic loss of life and economic damage to the country,
but Liberia has made tremendous progress in its ability
to diagnose and contain future outbreaks of the
disease.
Accordingly, I find that conditions in Liberia no
longer warrant a further extension of DED. . . .
President Trump has since provided a one-year
extension.\11\ It is estimated there are anywhere between 840
and 3,600 DED recipients currently in the U.S.
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\11\Memorandum on Extension of Deferred Enforced Departure for
Liberians, Mar. 28, 2019, https://www.whitehouse.gov/presidential-
actions/presidential-memorandum-secretary-state-secretary-homeland-
security/.
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With H.R. 2821, the Democrats continue their assault on the
rule of law in our immigration system by taking what were to be
temporary protective measures and placing the recipients of
those measures, as well as those who never even applied for the
measures, on a path to U.S. citizenship.
Democrats claim this bill is necessary since TPS recipients
have been in the United States for a long time. In fact, during
the markup Chairman Nadler stated, ``TPS recipients have lived
in the United States for an average of 19 years.''\12\ And he
went on to note, ``Now they face the possibility of being
removed to a country they have not known for decades.''\13\ But
those statements do not reflect the actual repercussions of the
legislation--that nationals of countries whose TPS designations
are less than four years old, will be granted green cards; and
that nationals of countries whose designations have ended--thus
the aliens were to have left the U.S.--will be granted green
cards. In addition, as noted above, the bill allows people who
were ``eligible'' for TPS or DED, but who have already left the
U.S., to be granted a green card.
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\12\Statement of Chairman Jerrold Nadler, Markup of H.R. 2821, the
American Promise Act of 2019, House Judiciary Comm., 116th Cong. May
22, 2019.
\13\Id.
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Republicans offered an amendment to limit the availability
of a green card to nationals of countries that had a valid
designation on January 1, 2010, as opposed to January 1, 2017,
in order to bring the bill's text in line with the proffered
reason for the legislation. The amendment would have prevented
those who have been here a short time and those whose TPS
designations were terminated, from being granted a path to
citizenship. No Democrats voted for the amendment and it
failed.
H.R. 2821 will incentivize the filing of fraudulent
applications. H.R. 2821 permits various categories of low-
reliability evidence to be submitted in support of an
application, including mere affidavits to establish continuous
physical presence.\14\ H.R. 2821 also contains an expansive
confidentiality provision\15\ that prevents information
contained in an application from being used for law enforcement
purposes. Similar confidentiality provisions in the 1986
Special Agricultural Worker amnesty program incentivized
widespread fraud in the program and have hampered law
enforcement efforts. Moreover, aliens found to be ineligible
and removable are prohibited under H.R. 2821 from being
referred to U.S. Immigration and Customs Enforcement for lawful
enforcement actions.\16\ Hundreds of thousands, if not over a
million aliens have applied for TPS over the years
notwithstanding more limited confidentiality requirements.\17\
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\14\Amendment in the Nature of a Substitute to H.R. 2821, 116th
Cong. (American Promise Act of 2019) at Sec. 207.
\15\Id. at Sec. 209.
\16\Id. at Sec. 209(b).
\17\8 C.F.R. Sec. 244.16.
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H.R. 2821 also contains a provision expressly permitting an
alien to withdraw their application at any time, merely by
making a request, which the Secretary has no discretion to
ignore.\18\ The withdrawal ``shall not prejudice any future
application filed by the applicant for any immigration benefit
under this Act or under the Immigration and Nationality Act . .
.''\19\ meaning an alien can file a fraudulent application, and
once they are caught simply request to withdraw their
application with no consequences--criminal or immigration-
related. Where there are no consequences for filing a
fraudulent application, H.R. 2821 incentivizes filing
fraudulent applications on the chance that an alien could be
granted a green card.
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\18\Id. at Sec. 101(c)(3).
\19\Id.
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H.R. 2821 creates a taxpayer-funded grant program to
support the filing of applications for benefits. It would
permit taxpayer money to be obligated through 2030. Aliens
applying for other immigration benefits through the normal
process must find and pay for their own legal and technical
assistance. The special path to citizenship that H.R. 2821
confers is a significant immigration benefit that treats
certain immigrants better than others. There is no reason
whatsoever that U.S. taxpayers--and not the aliens--should have
to shoulder the monetary burden to adjudicate that special path
to citizenship.
H.R. 2821 also treats its potential beneficiaries better
than legal immigrants who have followed the law. As written,
the bill does not permit the Secretary to consider
discretionary factors when determining whether an alien with
TPS or DED is eligible to receive lawful permanent residence.
The vast majority of other immigration benefits provided
through the Immigration and Nationality Act--including
adjustment of status--are discretionary and the alien must
demonstrate they merit the status in the exercise of
discretion. But H R 2821 states the Secretary ``shall'' adjust
the status of an alien, so the Secretary cannot consider
discretionary factors that weigh in favor or against granting
such a status. Under the bill as written, aliens arrested, but
not yet convicted, for heinous crimes after they were granted
TPS would get green cards. Aliens who commit heinous acts but
who were not convicted for technical reasons would get green
cards. If the alien is technically eligible, the Secretary must
grant the benefit--the Secretary is powerless to deny it.
H.R. 2821 grants green cards to an untold number of aliens,
whether or not they entered the country illegally, whether they
have been here for many years or a few years, whether or not
they were TPS or DED recipients, and whether or not they have
already left the country.
As written, H.R. 2821 contains no enforcement provisions,
and is simply a vehicle designed to give green cards to a great
number of people. Meanwhile, the United States is witnessing a
security and humanitarian crisis on the border, as each
successive month we are seeing unprecedented numbers of family
units and unaccompanied alien children encountered by Customs
and Border Protection personnel. The sheer volume of people
coming is overwhelming border infrastructure.
Yet in the midst of a true crisis, H.R. 2821 does nothing
whatsoever to address the resource needs of our law enforcement
personnel on the border, nor will it do anything to address the
root causes of the legal loopholes in U.S. immigration law that
act as pull factors and have created a de facto system of
catch-and-release.
We urge our colleagues to oppose this legislation.
Signed,
Doug Collins,
Ranking Member.
Martha Roby.
Andy Biggs.
Steve Chabot.
Matt Gaetz.
Tom McClintock.
Guy Reschenthaler.
W. Gregory Steube.
Ben Cline.
[all]