Editor's Note (5/18/2020): The House of Representatives passed the HEROES Act (H.R.6800) on the evening of Friday, May 15th. Section 191203, as discussed below, was included in the final version of the bill.
[This article was originally published on 5/15/2020 before the House of Representatives passed H.R.6800]
- Section 191203 of the HEROES Act, introduced by House Democrats on Tuesday, grants deferred action and employment authorization to aliens who are removable from the United States and who were working on January 27 (and continue to work) in "essential critical infrastructure labor or services" — a laundry list of occupations that runs the gamut from agriculture to food preparation to construction to home health aides and babysitters to gas station workers.
- This provision is essentially open-ended in its coverage, scope, and duration, and will inevitably lead to amnesty for the vast majority of aliens who are removable from the United States.
- Aliens who are eligible for benefits under this "temporary" program will likely receive Social Security numbers, which will allow them to establish that they are work-authorized even assuming the program ever ends.
- The main beneficiaries of this provision are the "public-safety risks and individuals subject to mandatory detention based on criminal grounds" that ICE ERO is currently focusing its immigration-enforcement efforts on.
On Tuesday, House Democrats introduced the "Health and Economic Recovery Omnibus Emergency Solutions Act", or the "HEROES Act". There are many seriously bad ideas in there, but the worst may be in section 191203 (you read that correctly) on p. 1737 of that 1815-page bill. It is a "temporary", but likely in reality indefinite, amnesty for the vast majority of aliens living and working unlawfully in the United States, although the main beneficiaries are aliens who have done some really bad things.
Pursuant to that section, between "the first day of the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act ... with respect to COVID–19" and 90 days after "the date on which such public health emergency terminates", aliens who are physically present but removable from the United States and who were "engaged in essential critical infrastructure labor or services in the United States" on that earlier date and continue to be so employed "shall be deemed to be in a period of deferred action and authorized for employment" under the Immigration and Nationality Act.
There is a lot to unpack there, and the references deliberately obfuscate the scope of this section. The "public health emergency" referenced therein was declared on January 31, 2020, retroactive to January 27. How long will it go on? Heavens knows.
Until a Wuhan coronavirus vaccine is developed? Until that vaccine is distributed to all 329,641,797 Americans in the United States? If those are the standards, keep in mind that there never was a vaccine for the Spanish flu, which lasted from 1918 until the summer of 1919, and which infected 500 million people worldwide. Or that HIV was discovered in 1984 and there is still no vaccine for it, although in 2018 alone, 37,832 people in the United States were diagnosed with the disease.
Until bars and restaurants can reopen? Until shops can reopen? Until D.C. can reopen? You get the idea. Plus 90 days.
What is "essential critical infrastructure labor or services''? That sounds like it should be limited, right? The term refers to "labor or services performed in an essential critical infrastructure sector, as described in the 'Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID–19 Response'". That memorandum which was originally issued on March 28, 2020, by the Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) ("the nation's risk advisor", in case you were concerned we did not have one), but refers in this instance more specifically to the version revised by CISA on April 17 (version 3.0).
That memorandum currently states:
The advisory list identifies workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others. It also includes workers who support crucial supply chains and enable functions for critical infrastructure. The industries they support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement, and public works.
The whole list runs about 16 pages, and includes:
- "Workers in laundromats, laundry services, and dry cleaners";
- "Workers responsible for the movement of household goods";
- "Workers providing dependent care services, particularly those whose services ensure essential workers can continue to work";
- "Management and staff at hotels and other temporary lodging facilities that provide for COVID-19 mitigation, containment, and treatment measures or provide accommodations for essential workers";
- "Workers who manage hazardous materials associated with any other essential activity, including but not limited to healthcare waste (medical, pharmaceuticals, medical material production, and testing operations from laboratories processing and testing kits)";
- "Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, supply chain, and COVID-19 relief efforts";
- "Workers personnel, who support operations that ensure, the availability of and access to needed facilities, transportation, energy, and communications through activities such as road and line clearing";
- "Workers such as plumbers, electricians, exterminators, builders (including building and insulation), contractors, HVAC Technicians, landscapers, and other service providers who provide services, including temporary construction, that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings, such as hospitals and senior living facilities";
- "Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them";
- "Workers and firms supporting the distribution of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendor-managed inventory controllers, and blockchain managers";
- "Farmers, farm and ranch workers";
- "Restaurant carry-out and quick serve food operations, including dark kitchen and food prep centers, carry-out, and delivery food workers";
- "Home-maker services for frail, homebound, older adults";
- "Childcare, eldercare, and other service providers for essential healthcare personnel";
- "Home care workers"; and
- "Outpatient care workers".
Did I mention that "this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions"?
Although, as my colleague Steven Camarota has noted, "There Are No Jobs Americans Won't Do", a review of the immigrant-share of workers in many of these industries shows that there are a handful with immigrant majorities and many performed by a significant minority share of aliens — notably in "food and agriculture" and construction. As for "medical and healthcare", 25 percent of personal care aides; 23 percent of nursing, psychiatric, and home health aides; and 38 percent of "health scientists, all other" are immigrants.
Although the number of those immigrants who are removable aliens is unknown, it is likely sizeable, and many if not most are jobs that could be filled by an equally sizeable proportion of the 36.5 million Americans who have filed unemployment claims in the last eight weeks.
That said, however, CISA's list is so inclusive, almost any alien can make a claim to be "essential to continued critical infrastructure viability". And, there is no application process for benefits under the terms of section 191203 for either the alien or the employer, and no documentation to show whether the alien is authorized or not (a specific feature, not a bug, of the provision). So, there would be no way for ICE to verify that an alien is "engaged in essential critical infrastructure labor or services in the United States," and therefore no way for the agency to know which removable aliens are work-authorized, let alone removable.
And aliens with work authorization are eligible for Social Security numbers. Normally, according to the Social Security Administration (SSA), an alien would need to present documents establishing that alien's U.S. immigration status and work authorization to get a Social Security number. If Congress were to specifically state that no application is required for an alien to obtain work authorization (as in section 191203), there would be no documents to prove this fact, so SSA would have to take the alien at his or her word — or run the risk of a massive class-action lawsuit. Even if this "temporary" amnesty were to actually end, those aliens who receive a Social Security number would still have documents showing that they can work.
Nor are there any restrictions on which removable aliens are covered — all that is required is that the alien be "inadmissible to, or deportable from, the United States". That includes alien murderers, rapists, child molesters, drug dealers, and those engaged in domestic violence (which has skyrocketed since the shutdown).
With respect to the latter point, the Council on Foreign Relations states: "Governments worldwide have imposed lockdowns to contain the coronavirus, but those same restrictions have increased the risks associated with domestic violence, especially for women, children, and LGBTQ+ individuals." Likely not the Democrats' intent to allow their abusers to remain in the United States, but an inevitable side effect.
Given the fact that ICE Enforcement and Removal Operations has stated that it is temporarily (pending the run of the pandemic) focusing its efforts "on public-safety risks and individuals subject to mandatory detention based on criminal grounds" — that is, the removable aliens described above, as well as others convicted of crimes that endanger public safety — such aliens are the main beneficiaries of section 191203 of the HEROES Act. This provision could be called the "Alien Murderer, Rapist, Child Sex Offender, Trafficker, and Abuser Deferred Action and Full-Employment Act", and be right on the money.
Of course, once those aliens are granted deferred action for any extended period of time, full amnesty is not only possible, but probable. For proof, just look to the Obama administration's Deferred Action for Childhood Arrivals (DACA) program. DACA was created by memorandum on June 15, 2012, and has taken on a life of its own, to such a degree that even President Trump has said that "Republicans and Democrats will have a deal to let" DACA recipients "stay in our country, in very short order" if the Supreme Court strikes it down.
Not that you would know that the president made such a statement from reading the latest from the Center for American Progress on the issue. Bringing the topic full circle, that group asserts that "more than 200,000 DACA recipients are working on the frontlines of" the global pandemic response. "Never let a crisis go to waste."