Congressional standoff over immigration plays out through debate on DHS funding bill

A chess match continues to be fought in Congress over the fate of President Obama’s executive action on immigration. The standoff is over disagreement as to whether President Obama exceeded his constitutional authority by attempting to bypass Congress and put into effect a collection of immigration reforms through executive action first announced on November 20, 2014. Two of the central provisions from that executive action, the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the extension of the related Deferred Action for Childhood Arrivals (DACA) program, are currently blocked by a preliminary injunction ordered by federal district Judge Andrew Hanen in a case brought by 26 states to challenge the president’s action. The administration has appealed Judge Hanen’s order.

Mirroring the main objections put forward in the states’ lawsuit, Republicans in Congress had added provisions to a U.S. Department of Homeland Security (DHS) funding bill that would effectively undo key portions of President Obama’s executive action on immigration by blocking funding for the immigration programs at issue. Democrats opposed the effort to tie DHS funding to the immigration debate, and President Obama had vowed in his State of the Union address to veto any measure that sought to roll back his actions on immigration. Faced with the makings of a stalemate, Republican and Democratic leaders in the U.S. Senate reached an agreement on Wednesday, February 25, 2015, to strip the immigration provisions out of the Senate DHS funding bill. That maneuver allowed a “clean” version of the DHS funding bill to pass.

The “clean’ bill went to the U.S. House of Representatives, but met immediately with resistance from House Republican leadership and significant numbers of GOP rank-and-file members. After stalling the Senate-passed DHS bill, on February 27, 2015, Speaker of the House John Boehner (R–OH) instead brought to the House floor a bill containing a more limited three-week extension of DHS funding. That bill failed by a vote of 203 – 224, leaving DHS perilously close to a partial agency shutdown that would have been triggered had its existing funding run out at midnight.

Fearing the political repercussions of such a shutdown, the Senate quickly adjusted course, passing a stopgap bill that would fund DHS for just one week. That bill then went back to the House where it was passed and subsequently signed into law by President Obama just before DHS’s existing funding ran out. While this move successfully avoided a partial agency shutdown at DHS by extending funding for one week beyond the February 27 midnight deadline, Congress continues to remain sharply divided over the legitimacy of President Obama’s executive action on immigration as well as over the risks of a legislative tactic that places crucial government funding at the mercy of such a controversial debate.

Despite the drama most business immigration interests should be unaffected

There is a concept in art called ‘negative space’ whereby the absence of paint in some parts of a canvas can help to define the shape of an object where the paint is being applied. In fact, sometimes it is the space around the subject being painted that is the true focus of a work. The debate over the DHS funding bill may be an instance where, for those interested in business immigration, the shape of the bill’s impact can actually be seen more clearly by focusing on where the legislative brush strokes aren’t, than on where they are.

Even if a way around the current impasse cannot be found in time and DHS funding runs out, actual implications for most business immigration interests should be minimal. U.S. Citizenship and Immigration Services (USCIS) falls under the auspices of DHS. However, many of its activities are funded through user fees, not congressional funding. E-Verify could be impacted by a partial DHS shutdown, but USCIS may be able to find a work-around to help businesses continue to determine the eligibility of their employees to work in the United States. Otherwise, most USCIS processing and operations should not be affected. Processing of H-1B visa petitions, L-1 visas, work permits, and PERM applications, for example, should continue unimpeded. U.S. Department of Labor operations would also be unaffected, meaning that Labor Condition Applications would continue to be processed. Similarly, U.S. Department of State funding is not implicated in the current debate so consular processing should be unaffected.

As the debate over DHS funding and President Obama’s executive action on immigration continues to unfold, businesses should take care to look past the headlines of the day to assess where their interests may be unaffected as well as where they may actually be impacted. Ogletree Deakins will continue to analyze and report on developments as the situation continues to evolve.