It’s September and that means Congress begins its annual battle over spending levels, priorities and policies. While the executive agencies are finding creative ways to use taxpayer money before September 30 (when the fiscal year ends and the money vanishes), the legislative branch is warming up and putting on their boxing gloves, readying for a showdown or shutdown. This year, the border crisis is front and center, and may be one of the reasons the federal government shuts down on October 1.
To understand what’s happening in Washington, we will break down the differences between the House and Senate chambers in proposed spending for the Department of Homeland Security (DHS). We will discuss the foreign worker visa increases that both chambers have included in their bills that will harm American workers. Finally, we will discuss the paths ahead, and most importantly, what FAIR needs to see in any spending bill for Fiscal Year 2024 (FY24).
First and foremost, the two chambers disagree about the overall level of spending. Because a budget framework – which sets the top-level spending and allocations – has not been agreed to, each chamber decided on their own how much taxpayer funding would be spent in the next fiscal year. The House opted to cut spending back to FY22 levels, with a spending cap of 1.5 trillion. The Senate, on the other hand, agreed to keep spending at the same level as last year (fiscal year 2023) at $1.7 trillion. Thus, one of the biggest challenges for Congress is to determine how to bridge that $200 billion divide.
The Senate Committee on Appropriations, for the first time in years, agreed to a spending bill in July that would provide $61.4 billion for DHS. However, the Committee’s bill is abysmal for border security, fails to address the border crisis and continues to allow the Biden Administration to refuse to enforce our immigration laws. The Senate appropriations bill ignores the fact that nearly 8 million illegal aliens have been encountered at our borders since January 2021, and that President Biden’s open-border policies are resulting in lives lost – to smugglers, drug traffickers, and criminal illegal aliens.
While the Senate bill includes funding for border security technology (such as surveillance towers and tunnel detection capabilities) and a very small increase of 145 officers for the Border Patrol, it contains no money for wall construction and stronger physical barriers that are needed to deter mass illegal immigration. Given that many aliens are claiming asylum or obtaining parole, and being guided into the country by the Biden Administration, the bill lacks any effective measures to end the crisis.
Instead, Senate appropriators prioritized funding for non-governmental entities to assist illegal aliens at the border with food, shelter and transportation. They also are more fixated on “backlogs” in work permits and asylum processing rather than on fraud and abuse in our legal immigration system.
House of Representatives
Procedurally, the House is a step ahead of the Senate, on the verge of taking their committee-passed bill to the full House for a vote. The bill provides $62.8 billion for DHS.
In its spending bill, House appropriators included investments in border security and interior enforcement, reversing some of Biden’s open-border policies that have led to the crisis, and provides some solutions to curb the border surges. FAIR has applauded the following provisions in the House bill:
- Provides over $2 billion for construction of a physical wall along the southwest border;
- Increases funding to support a record high of 22,000 Border Patrol agents;
- Restores funding for border security technology, including for towers, aerostats, counter drones and new innovative technology;
- Funds ICE’s ability to detain up to 41,000 aliens on a given day (up from 25,000) and provides over $3.5 billion for custody operations;
- Restores pay cuts to Customs and Border Protection (CBP), and provides $44 million for workforce care and suicide prevention programs;
- Prohibits funding for the CBP One mobile application that is facilitating the entry of illegal aliens at the border;
- Instructs ICE to continue to utilize the 287(g) program to allow state and local law enforcement to help in enforcing our immigration laws;
- Prohibits funding to be used for “Alternatives to Detention” (ATD) programs unless the Secretary certifies to Congress that there is insufficient detention capacity;
- Prohibits the Administration from implementing a Biden rule to allow asylum officers to make final asylum determinations; and
- Eliminates the Office of the Immigration Detention Ombudsman.
The House appropriately rejected several items from previous bills and the President’s budget proposal, including a Joint Processing Center for migrants and funds to bail out U.S. Citizenship and Immigration Services (USCIS) and increase processing times. It also rejected funding for non-governmental organizations (NGOs) to carry out programs that do not electronically monitor illegal aliens in the country but rather provide aliens with social services and referrals for benefits and legal services.
Importantly, the House appropriations bill also includes a provision that would require DHS to deny or terminate an alien’s work authorization if his or her application for asylum has been denied, or if the alien has been convicted of a crime while the asylum application is pending.
Foreign Worker Provisions that Harm Americans
H-2B (temporary guest worker) Visas
The House bill amends the Immigration and Nationality Act (INA) to exempt “returning workers” in the H-2B program from the total number of workers allowed in FY24. Currently, the H-2B visa allows 66,000 foreign workers per year to come to the U.S. temporarily to work in non-agricultural jobs. Under the House Appropriations bill, however, “returning workers” would be exempt from the annual cap of 66,000, thus increasing the number of foreign workers who enter the United States under the program. The Senate bill also includes an H-2B provision, one that increases the annual numerical cap by allowing the Secretary to raise it if he determines, at his discretion, that the needs of American businesses cannot be satisfied by United States workers in FY24.
H-2A (temporary or seasonal agricultural) Visas
The House appropriations bill proposes a major change to the H-2A program for FY24 which, as created, allows an unlimited number of foreign nationals to work in certain agricultural or seasonal jobs on a temporary basis. The appropriations bill, however, turns the program on its head to allow workers to enter the country to work “without regard to whether such labor is, or services are, of a temporary or seasonal nature.” Thus, the H-2A visa could be used by any agricultural employer, providing foreign nationals with an open-market work permit, and flooding the U.S. economy with those workers.
Kicking the Can or Shutdown?
The fiscal year ends on September 30, and because it’s extremely unlikely that the spending bills can pass both chambers and be signed by the President before then, Congress will need to pass a Continuing Resolution to keep the government operating. Typically, a continuing resolution funds the government at last year’s levels, unless directly specified otherwise. If Congress fails to pass such a resolution by October 1, the government will shut down and only “essential workers” will be allowed to report for duty.
Even as Congress contemplates a continuing resolution, there are disagreements. First, there is debate about how long a Continuing Resolution should last (i.e., days, weeks or months). Then, there is debate about what should be included in addition to annual spending. Notably, the President has asked Congress to provide emergency funding for disaster relief, border “security” and the war in Ukraine.
Some members of the House have already announced their intention to vote against any bill that does not end the border crisis or require DHS Secretary Mayorkas to step down from his position. Senate leaders, however, are ready to provide the President with the funding he has requested and have urged colleagues to support a resolution to keep the government open.
- Elimination of Provisions Increasing Foreign Guest Workers
For nearly three years, millions of illegal aliens have poured across our southern border. These illegal aliens are receiving work permits allowing them to work in any industry and any place in the country. Today’s flooded labor market is already leading to depressed wages and working conditions for American workers – and increasing more unskilled workers will only make matters worse and harder for Americans to compete. The H-2A and H-2B provisions on their own are harmful to American workers. Combined with the mass illegal immigration surge at the border, they will inflict long-term damage to our labor force.
- Real Border Security Solutions
Given that nearly 8 million illegal aliens have been encountered at our borders since President Biden took office, it’s clear that Congress needs to act. Any spending bill passed by Congress should include funding for a wall and other physical barriers, an increase in Border Patrol agents, DNA testing at the border to combat human trafficking, and additional technology at border ports of entry to detect and prevent the entry of narcotics and other contraband. And, as we spell out next, any spending bill must also legislatively reverse Biden’s open-borders immigration policies that have created the crisis.
- End to Asylum and Parole Abuse
Under the guise of protecting asylum claims, the Biden Administration has ended Remain in Mexico and expedited removal procedures and instead instituted a new rule requiring migrants to enter at ports of entry to claim asylum. The House bill would ensure that the rule is not carried out, but more needs to be done to deter abuse and frivolous claims that allow illegal aliens to enter, live, and work in the United States while their case is pending. For example, H.R. 2, which passed the House in May, would raise the standards for asylum claims, grant DHS the authority to remove asylum applicants to safe third countries without requiring bilateral agreements with those countries, and prohibit asylum for several classes of aliens, including those convicted of felonies and certain categories of misdemeanors, such as serious crimes, drug trafficking and domestic violence.
The parole authority created by Congress has been severely abused by the Biden Administration, distorting the original intent of parole authority beyond recognition, turning it into a backdoor to bring in limitless numbers of otherwise inadmissible aliens and misleadingly portraying this abuse as some kind of “lawful pathway.” Congress can easily rein in parole abuses by passing clearly worded legislation that curtails executive discretion and explicitly defines the specific, and limited, circumstances under which an alien may be paroled into the United States. In May, the House of Representatives passed H.R. 2, the Secure the Border Act. This bill includes language that would curtail parole abuse by limiting who is eligible and denying employment authorization for parolees. The bill would limit parole to aliens with medical emergencies, seeking to adopt, or desires to attend a funeral for a close family member, as examples.
- Interior Enforcement
While the House spending bill increases detention bed capacity to 41,000, more could be done. Meanwhile, the Senate spending bill severely lacks funding to detain people who enter the country illegally, resulting in the mass release of illegal aliens into the interior of the country. The Senate bill merely keeps the number of detention beds at 34,000 – which is above the President’s request of 25,000 beds, but falls short of the number of detention beds available under the Trump Administration, around 50,000. Today, the Biden Administration is only detaining around 31,000 illegal aliens. FAIR also applauds the House’s inclusion of funding to continue the 287(g) program to allow state and locals to assist ICE in the enforcement of our immigration laws.
- An End to NGO Funding that Aids and Abets Illegal Aliens
While we applaud the House’s attempts to zero out NGO funding, the Senate bill provides $14.1 million for the Case Management Pilot Program, a so-called Alternative to Detention program that provides services to illegal aliens, including legal access programs, social services, health screenings, and cultural orientation programs. The Biden Administration argues that programs like these, which help illegal aliens settle in the U.S. will actually improve the likelihood that they will turn up for their deportation hearings. The program has received approximately $40 million dollars in recent years, but the Administration has not released data on enrollees, specific services they have received, and whether the aliens are checking in with Immigration and Customs Enforcement (ICE) or are compliant with court orders. The Senate bill also continues to fund the Shelter and Services Program (SSP) by transferring $752 million to the Federal Emergency Management Agency (FEMA) “to support sheltering and related activities provided by non-Federal entities, in support of relieving overcrowding in short-term holding facilities of U.S. Customs and Border Protection,” which FAIR has opposed.
- Refusal to Bail Out U.S. Citizenship and Immigration Services (USCIS)
In addition, the Committee provided over $455 million for U.S. Citizenship and Immigration Services (USCIS), which manages the legal immigration system. In doing so, it is using taxpayer dollars to fund an agency that has long been funded through fees on those who actually apply for the benefits. USCIS could cover its own costs as it has done in the past, but under this Administration, it has refused to increase fees to ensure it has sufficient operating funds – despite the sheer number of illegal aliens seeking work permits and other benefits. Now, USCIS has turned to Congress (and American taxpayers) to bail them out. This particular appropriation is intended to fund work permits and additional resources for asylum adjudications.