Last week, the U.S. House of Representatives passed a Homeland Security spending bill (H.R. 240, the Department of Homeland Security Appropriations Act of 2015) that would continue to fund the department while rolling back executive actions that President Barack Obama has taken. This legislation, which passed by 236-191, is necessary because the “cromnibus” bill that passed in the last session of Congress to fund the rest of the U.S. government only funded the Department of Homeland Security through Feb. 27, 2015 in reaction to immigration executive action.

What is included in the DHS spending bill?

The bill provides $39.7 billion in funding for DHS for fiscal year 2015, which runs through Sept. 30, 2015.

The House also passed five amendments that attack parts of Obama’s executive actions. The Aderholt amendment, sponsored by Rep. Robert Aderholt, R- Ala., defunds immigration executive action by blocking all funding to carry out Obama’s most recent executive actions or to enforce the “Morton Memos,” which give Immigration and Customs Enforcement greater discretion in prioritizing which cases to enforce and prosecute. The Blackburn amendment, sponsored by Rep. Marsha Blackburn, R- Tenn., would eliminate the Deferred Action for Childhood Arrivals program by preventing funds from being used to consider any new DACA applications. The DeSantis amendment, sponsored by Rep. Ron DeSantis, R-Fla., would prohibit ICE from prioritizing the deportation of certain criminals using prosecutorial discretion. The Salmon amendment, sponsored by Rep. Matt Salmon, R-Ariz., discourages DHS from granting deferred action to undocumented immigrants because their exclusion from the Affordable Care Act could prompt employers to hire them over American workers who are entitled to health benefits. Finally, the Schock amendment, sponsored by Rep. Aaron Schock, R-Ill., urges U.S. Citizenship and Immigration Services to prioritize applications of immigrants who came to the U.S. within the existing legal framework over those who came here illegally.

What would this mean for my company if the bill becomes law?

As it stands, the bill would not have a substantial effect on the current visa processes for employers of high-skilled workers. However, the amendments could prove detrimental to current efforts on the agency’s regulatory agenda, including H-4 spousal work authorization and other proposed improvements for which the administration is seeking recommendations and input based on executive action.

If DHS is funded through Feb. 27, why did the House pass a bill for continued funding so many weeks in advance?

Funding for DHS as a whole is a major national security concern, especially in light of recent global terror threats. Congressional Republicans would like to express their displeasure at Obama’s executive actions, but they do not want departmental funding to lapse. Thus, they needed to start early in order to get some posturing out of the way and hammer out a deal with the Senate, which is unlikely to pass the measure in its current form.

What is going to happen with the bill now?

We may see a series of bills over the coming weeks that tie DHS funding to immigration executive action, much as we have seen in the House with efforts to repeal the Affordable Care Act. Ultimately, the House will need to pass a bill that is palatable to the Senate and can garner the necessary 60 votes for a filibuster-proof majority. Once a bill has passed the Senate, it will go to Obama to be signed into law. Obama has indicated that he will veto any bill that defunds his executive actions on immigration.

Are there any other options for DHS funding?

Congress will need to pass a funding bill in order for DHS to continue operations, but the final form of the bill is unclear. Although everyone wants DHS to be funded, Republicans find themselves in a politically difficult situation because they do not want to appear to condone immigration executive action in any way. If it is exceptionally difficult to find compromise on a funding bill for an entire fiscal year, the GOP may continue to express its dissatisfaction by passing smaller “clean” spending bills to fund DHS for only a few months at a time and keep the conversation alive throughout the year.

What happens if DHS funding lapses?

As with the government shutdown in October 2013, many DHS operations would remain running.

Since USCIS is a fee-funded agency, processing of applications and petitions for immigration benefits would not be affected. E-Verify access would be discontinued until funding is resumed, meaning that companies could not enroll in E-Verify and users could not verify employment eligibility or take action on any case. The CIS Ombudsman’s Office would likely close in the event of a lapse in funding, meaning that they could not accept any inquiries through their online case intake system.

Most CBP personnel would remain on the job; however, funding constraints could limit staff and cause delays. ICE detention and enforcement operations would likely continue during any shutdown.

BAL continues to pay close attention to this and other developments in Congress and will provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.

For additional information or questions:

Lynden Melmed, Partner
Washington, D.C.
Direct: 202.842.5830

Christiana Kern, Legislative Analyst
Direct: 202.842.5831

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