Immigration Negotiations in the Lame Duck Congress

This information is provided by national senior living assocation partner, Argentum.

Argentum is actively engaged in efforts to address the nation’s immigration policies as they relate to senior living. Our efforts include both administrative changes that could be quickly implemented through executive action (more on this in the coming weeks), as well as continued outreach to Congress to insert our priorities in a potential end-of-year package.

As we have previously noted, the legislative path remains challenging. Lawmakers have been debating certain immigration issues throughout this Congress, but have thus far been unable to reach an agreement on several items. While the political climate makes it difficult to overcome the current impasse, Argentum continues to push all possible avenues during the upcoming “Lame Duck” session of Congress—after next week’s elections and before the end of the year—as we believe this may offer the best opportunity for both Democrats and Republicans to reach a deal.

There are still numerous unresolved issues that would need to be addressed in order to secure a deal, including border security, protections for documented dreamers, and relief for immigrants addressing critical workforce needs in the agricultural, health care, and manufacturing sectors. If Republicans retake one or both chambers in next week’s elections, they may prefer to reach an immigration deal with Democrats in the Lame Duck to avoid internal debates over immigration issues relating to border security in the new Congress. Further, Republicans may have more success securing a deal with Democrats in the Lame Duck, who would otherwise not support anything that doesn’t provide a permanent pathway for documented dreamers, or would accept any modified asylum protections.

Though the outlook for the balance of the year is tough, Argentum is pursuing two potential legislative paths: The National Defense Authorization Act (NDAA) and the potential Fiscal Year (FY) 2023 omnibus. Senator Dick Durbin (D-IL) offered the Healthcare Workforce Resilience Act (HWRA) as an amendment to the NDAA, but it was not included in the bipartisan manager’s amendment (Argentum drafted language to allow more direct care workers to be eligible and is working with Senator Durbin’s office on incorporating this into a final package). It is not yet clear whether this provision will be offered as an amendment during floor considerations for NDAA, or if amendments will be limited to defense related proposals. The FY23 omnibus could be a vehicle for a multitude of policy proposals, meaning an immigration deal could find its way in if there is consensus; however, this will largely be dependent on the outcome of the elections and willingness for both sides to advance a comprehensive omnibus package with immigration policies.

Status of Immigration Action in Congress & Relevant Legislation:

Conrad State 30 and Physician Access Reauthorization Act (Sponsor: Klobuchar; 25 bipartisan cosponsors): Aliens coming to the United States under a J-1 nonimmigrant visa to receive medical training typically must leave the country and reside for two years abroad before being eligible to apply for an immigrant visa or permanent residence. The Conrad program waives this requirement for individuals who meet certain qualifications, including serving for a number of years at a health care facility in an underserved area. The bill increases the number of waivers that a state may obtain each fiscal year from 30 to 35 if a certain number of waivers were used the previous year, and provides for further adjustments depending on demand.

Healthcare Workforce Resilience Act (Sponsor: Durbin; 25 bipartisan cosponsors): This bill makes previously unused immigrant visas available to 25,000 nurses and 15,000 physicians who petition for such a visa before the date that is 90 days after the end of the declared national emergency relating to the COVID-19 (i.e., coronavirus disease 2019) outbreak.

EAGLE Act (Sponsor: Cramer/Hickenlooper / Rep. Lofgren; no cosponsors, 83 in House): The bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15% and eliminates the per-country cap for employment-based immigrant visas. It also makes changes to the H1-B program. Rep. Lofgren indicated recently that EAGLE Act “should be set for a House vote when Congress reconvenes [in November].”

America’s Cultivation of Hope and Inclusion for Long-term Dependents Raised and Educated Natively (CHILDREN) Act of 2021 (Sponsor: Rep. Ross; 44 bipartisan cosponsors / Related Senate Bill): This bill allows an alien to apply for lawful permanent resident status if the alien: (1) was lawfully admitted into the United States as a dependent child of an alien on a temporary worker visa; (2) was in the United States with such status for at least four years; (3) has graduated from an institution of higher education in the United States; and, (4) is not deportable or otherwise inadmissible. In addition, the alien must have been lawfully present in the United States for at least 10 years at the time of the application.

Citizenship for Essential Workers Act (Sponsor: Padilla; 18 Dem cosponsors): This bill establishes a mechanism for eligible aliens who worked as essential workers during the declared COVID-19 (i.e., coronavirus disease 2019) public health emergency to apply for and obtain permanent resident status.

Essential Workers for Economic Advancement Act (Sponsor: Rep. Smucker; no cosponsors): This bill establishes a new nonimmigrant visa for temporary nonagricultural workers (H-2C visa) to fill jobs that have remained open for a certain amount of time and are located in an area where the unemployment rate is 7.9% or less. This visa shall only be available for certain occupations and those requiring a bachelor's degree or higher level of education shall not be eligible.

We will continue to monitor these negotiations and the impact of next week’s elections on these discussions. And, please know that if an agreement is not reached by Congress in an end-of-year package, Argentum will continue to pursue immigration policies with the newly elected Congress. For more information on the election, key races and issues at stake, and our expectations for how senior living may be affected, you may view a recording of a briefing we presented yesterday (slides here).