Situational Awareness
Both the House of Representatives and Senate return to Capitol Hill this week. The House is scheduled to consider legislation on public safety and restrictions on migration, including a bill that would make acts related to Social Security fraud a ground for deportation. House Republican leadership will also have to decide whether to bring forward the bipartisan tax package for a floor vote. Concerns from both House Democrats and Republicans regarding the package could threaten the bill’s success, especially if Speaker Mike Johnson (R-La.) brings the bill to the floor under suspension of the rules, which raises the necessary voting threshold. GOP members from New York and California could seek to amend the legislation to raise the state and local tax deduction cap while Democratic lawmakers wish to strengthen child tax credit provisions.
On the Senate side, a bipartisan group of lawmakers tasked with securing a deal on new border security controls will continue talks with the White House amidst growing divisions between Senate and House leadership. Speaker Johnson has held the stance that the Senate must strengthen the legislation to resemble the House-passed H.R. 2 more closely if House GOP members are to support a larger national security supplemental that includes new assistance to Ukraine and Israel.
Over the weekend, it was reported that top leaders on the House and Senate Appropriations Committee have reached an agreement on top-line allocations for the 12 annual government-funding bills. Such an agreement would allow lawmakers on the appropriations subcommittees to begin negotiating the details of a larger spending package. After passing a third short-term spending measure, Congress now has one month to complete work on four FY24 spending bills, and then March 8 to continue the rest.
OMB Clears USCIS Fee Rule
The White House Office of Management and Budget has completed its review of a draft rule proposed by US Citizenship and Immigration Services (USCIS) that would increase fees for I-129 Petitions for Nonimmigrant Workers (see below table)—the last step before a final rule is released. The proposed rule would also add a surcharge of $600 added to all I-129 Nonimmigrant Worker Petitions and all I-140 Immigrant Petitions specifically to cover costs associated with humanitarian applications. USCIS is also proposing separate H-2A and H-2B fees for petitions with named workers and unnamed workers. In addition, USCIS may require the petitioner to name H-2B workers where the name is needed to establish eligibility for H-2B nonimmigrant status. USCIS hasn’t updated its fees since 2016. A Trump-era fee rule was blocked by a federal district court judge who found that it violated the Administrative Procedure Act. It should be noted that USCIS authority to place additional fees on programs to augment funding for other immigration programs, but such a practice has been struck down by the courts in the past. Should the asylum program fee be part of the final rule, it is likely to be challenged in court and it is unclear whether such a challenge would halt the fee increases altogether or just the asylum fee. NCA will continue to monitor the regulatory and legal situation and keep members informed.
Federal Judge Dismisses Challenge to Trump-era CWA 401 Rule
A federal district court judge in Northern California has dismissed as moot a legal challenge by a group of Democratic states and environmental groups against the Trump administration’s Clean Water Act (CWA) 401 certification rule. The order clarified that the Trump-era rule has been superseded by the Biden administration’s 2023 rule, which prohibits federal agencies from issuing permits that could result in pollutant discharge into federal waters, unless authorized by a state or tribe. The 2020 Trump administration quality certification rule gave states and tribes a more expansive scope of review in considering 401 certifications.