Week of December 15–21, 2022

Democratic Representative Zoe Lofgren of California has expressed disappointment that her green card legislation was removed from consideration on the House floor after several false starts and postponements. The so-called EAGLE Act would phase out per-country caps on employment-based green cards over nine years and raise the per-country cap on family-based green cards from 7% to 15% of the total number of such visas available each year. Employment-based green cards are capped at 140,000 annually, while certain categories of family-based green cards are capped at around a quarter-million. The employment-based caps have disproportionately affected green card applicants from India and China, while the family-based caps most affect applicants from Mexico. The bill has proved to be divisive among Democrats and immigrant advocates. Critics have warned that scrapping the per-country caps will result in the majority of green cards going to applicants from India and China at the expense of applicants from other countries.

Wyoming, the only state in the US without a refugee center, could be sitting on an untapped resource to fill its labor shortage. Over the past three years, the US has seen a mass exodus from service and labor jobs due to factors such as inflation, union debates and layoffs. Meanwhile, the post-pandemic era's "back to normal" has yet to fill a continued job gap. Wyoming, which grew less than all the states in its region, could benefit from an influx of immigrants, according to Jerry Fowler, assistant professor of the College of Law-Immigration at the University of Wyoming. Immigrants are a young workforce with larger families and Pew Research has shown that refugee status is likely to increase labour market participation.

The US House of Representatives has pulled an immigration bill that would have removed per-country caps on green cards, marking a victory for immigration opponents. The Equal Access to Green Cards for Legal Employment (EAGLE) Act sought to remove limits on the numbers of employment-based green cards and increase the cap on family-based visas from 7% to 15%. Most employment-based green cards are sought by temporary visa holders already in the US. However, due to the significant number of Chinese and Indian nationals brought in by US companies on those visas, nationals from those countries experience the longest backlogs. The legislation had bipartisan support and backing from major tech companies. However, opponents had lobbied against the bill, arguing it would encourage more applications and concerns over national security related to potential exploitation by the Chinese government. The House announced the bill's consideration would be postponed, and the House would not vote on the measure.

Nearly 40 organizations from Nebraska's business, education, health and other sectors have signed a letter calling for immediate action on immigration reform. The letter urges the state's congressional delegation to create stability for migrant families, employers and towns, as many who have been contributing for decades have no way to apply for residency and citizenship until Congress fixes outdated immigration laws. The organizations highlighted their preferred legislation, including the Renewing Immigration Provisions of the Immigration Act of 1929 and the Dream and Promise Act, which would create pathways to US citizenship for undocumented immigrants and those brought to the country as youths by parents. The letter also addressed Nebraska's workforce, saying many workers in the state have only temporary legal status.

Immigration activists gathered in Colorado's State Capitol building to urge Congress to pass a registry update during the lame-duck session, which would provide a pathway to citizenship for more than 8 million immigrants in the US. Immigration registry has provided a way for undocumented immigrants to secure a permeant status or green card for a century, but it has not been updated since 1986, leaving many immigrants with temporary or undocumented status. The Colorado Rights Immigration Coalition hosted a Posada Action Rally, urging elected officials to update the registry, which represents the Virgin Mary and Saint Joseph looking for shelter and refuge. The immigration registry bill would restore an existing pathway to that permanent status for millions of residents on DACA and other residents who have lived in the US for years, but are not eligible due to outdated eligibility requirements.

The US Supreme Court is once again considering the constitutionality of a law that makes it a crime to encourage illegal immigration. The statute at issue, 8 U.S.C. §1324(a)(1)(A)(iv), makes it a crime for any person to encourage or induce an alien to come to or live in the US while knowing or recklessly ignoring that the alien would be violating the law by doing so. In 2020, the Supreme Court overturned a Ninth Circuit Court of Appeals decision that had questioned the law's constitutionality, in a case that involved Ms. Sineneng-Smith, who had stolen $3.3m from clients who had no chance at legal status. The new case before the Supreme Court, U.S. v. Hansen, similarly involves a person convicted under this law, who falsely promised lawful status through adult adoptions. The Ninth Circuit has argued that the law could criminalize harmless speech, but this interpretation is considered wrong, as the statute only punishes criminal schemes that directly encourage others to violate immigration laws.

The US Supreme Court will hear the case of United States v. Hansen, which will determine whether a law prohibiting a kind of solicitation violates the First Amendment. The law under scrutiny bars knowingly “encourag[ing] or induc[ing]” someone to “come to, enter, or reside in” the United States illegally, known as the “encouragement provision”. The US government has charged Helaman Hansen, who allegedly persuaded hundreds of people to join and pay for an adult adoption program that he falsely promised would lead to citizenship, with violating the encouragement provision. Hansen’s attorneys contend that the plain meaning of the words in the law cover much more protected expression than unprotected criminal activity. The case could criminalize legal advice immigration lawyers routinely give their clients and curtail online discussions of immigration issues, as platforms hosting third-party content could be chilled from hosting statements that could be read as “encouraging” immigration law violations.

The Biden administration has requested the Supreme Court end asylum restrictions for migrants on the US southern border but requested a delay until at least after Christmas to allow time for preparations. The move came after conservative-leaning states requested the court keep pandemic-era limits in place for asylum-seekers. The restrictions have denied rights to seek asylum under US and international law 2.5 million times since March 2020. Title 42, the public-health rule being used to impose the restrictions, is no longer justified, according to the federal government, but the end of the rule would likely lead to “disruption and a temporary increase in unlawful border crossings”. El Paso in Texas is preparing for a potential increase in migrants by converting large buildings into shelters and by chartering buses to take migrants to other cities in Texas and nearby states.

Arizona's Senators Kyrsten Sinema and Mark Kelly have emphasized the need for bipartisan compromise on immigration and border security as Congress prepares to return to a divided government next month. They both expressed their willingness to work across party lines but lamented the failure to pass legislation that would provide legal status to undocumented youth and boost border security resources, especially in the face of unprecedented levels of illegal immigration, asylum seekers, and smuggling. Sinema warned that a combination of an unsecure border, under-resourced Border Patrol, and coordinated smuggling efforts have ruined an already broken system. Kelly claimed that the end of the pandemic-era health rule known as Title 42 could lead to a humanitarian and security nightmare, disproportionately affecting Arizona and its border communities. Sinema and Tillis ran out of time to collect the necessary support from the 60 senators required to pass their framework agreement, which establishes a decade-long pathway to citizenship for undocumented youth in exchange for additional border security investments.