Dear Nonprofit Security Friends: 

Several of you have reached out to me seeking clarification, explanation, and guidance regarding the immigration enforcement requirements/encouragements set forth in the FY 2025 Nonprofit Security Grant Program Notice of Funding Opportunity (NOFO) and the Department of Homeland Security Standard Terms and Conditions. I have reviewed the NOFO, Terms & Conditions, and also recent legal rulings on point.

I address all of these issues in detail, as follows:

I. Immigration and the Notice of Funding Opportunity

The FY 2025 NSGP Notice of Funding Opportunity sets forth a number of “so called” designated National Priority Areas (NPAs) that applicants are encouraged to demonstrate through their proposed projects.

These NPAs are not specific to NSGP, per se, and are generally contained in grant NOFOs relative to several FEMA administered preparedness grants for FY 2025.

The NPA that pertains to NSGP and the ONLY one I would encourage applicants of the NSGP to address is the “Enhancing the protection of soft targets and crowded places,” including faith-based organizations.

The other NPAs that “encourage” participation in immigration enforcement training, ICE cooperation, and the support of immigration law enforcement, are NOT mandatory and NOT relevant to NSGP.

NSGP is the ONLY counterterrorism preparedness grant program where nonprofit organizations are the intended sub-grant recipients (end users). All others are direct grants to the States or localities (i.e., Homeland Security Task Forces, Fusion Centers, Port and Transit Authorities).

Where the issue of NPAs is concerned, nonprofits need only demonstrate how their proposed projects contribute to the improvement and increase in the physical/cyber security and facility/target hardening of their own facilities and people. The NSGP NOFO is clear on how these improvements are achieved: 

1. “Enhance equipment and conduct security-related activities to improve the security posture of nonprofit organizations that are at high risk of a terrorist or other extremist attack.” 
2. “Address and close capability gaps that are identified in individual nonprofit organization Vulnerability Assessments via funding spent on Planning, Equipment, and Training and Exercises that aim to enhance the protection of soft targets and crowded places.” 
3. “Strengthen relationships across non-profit organization, state, local, and territorial homeland security agencies for a whole community approach to preparedness.” 

Nonprofits do not get funded to engage in intelligence and information sharing, interdiction and disruption, election security, border crisis response and enforcement. Rather, the physical security protections, planning, training and exercises, and contracted security that nonprofits carry out through the NSGP program address one priority area: “Enhancing the protection of soft targets and crowded places.” The specific eligible funding is enumerated by Approved Equipment List (AEL) Code, Tite, and Description. None of the approved investments advance any other NPA.

This should clarify what is required and expected of the NSGP applicants through the FY 25 NSGP NOFO.

II. Immigration and DHS/FEMA Terms and Conditions

Anti-Discrimination
 
The current Terms and Conditions, as written, apply to all federal awards of federal financial assistance for which the federal award date occurs in FY 2025, including nonprofit recipients of Nonprofit Security Grant Program awards. In fact, the FY 2025 NSGP Notice of Funding Opportunity states, “A recipient under this funding opportunity must comply with the DHS Standard Terms and Conditions in effect as of the date of the federal award.”
 
Of concern are new “Anti-Discrimination” terms and conditions that are included that provide (and I paraphrase):
 
Recipients must comply with all applicable Federal anti-discrimination laws material to the government’s payment decisions and in accepting the grant award, they certify that:  

1. Their programs and services do not and will not, during the term of this award, advance or promote diversity, equity, and inclusion (DEI) of violations of Federal anti-discrimination laws; 
2. They do not engage in and will not during the term of this award engage in a discriminatory prohibited boycott; and 
3. They do not, and will not during the term of this award, operate any program that benefits illegal immigrants or incentivizes illegal immigration.  

Under these terms and conditions, DHS reserves the right to suspend payments in whole or in part and/or terminate financial assistance awards if DHS determines that the recipient violated any of these provisions and has the right to seek a return of the funds received by the recipient.
 
Communication and Cooperation with the Department of Homeland Security and Immigration Officials 

In addition to the Anti-Discrimination provisions, there other DHS Terms and Conditions pertaining to “Communication and Cooperation with the Department of Homeland Security and Immigration Officials,” which apply to State and local recipients, as well as subrecipients – such as subrecipients of the NSGP program.
In summary, these terms and conditions: 

1. Require recipients to share information with (and cannot prohibit the sharing of information from) DHS regarding the citizenship or immigration status, lawful or unlawful, of any individual; 
2. Prohibit recipients from encouraging or inducing an alien to come to, enter, or reside in the United States in violation of law; 
3. Honor requests for cooperation, such as participation in joint operations, sharing of information, or requests for short term detention of an alien pursuant to a valid detainer; 
4. Provide access to detainees, such as when an immigration officer seeks to interview a person who might be a removable alien; and  
5. Desist from leaking or publicizing the existence of an immigration enforcement operation. 

If enforceable, I expect that these new terms and conditions could impact a segment of the faith-based community and nonprofit sector. As with ALL aspects of the NSGP grant application and post-award processes, it is incumbent upon nonprofit and faith-based sub-applicants/award subrecipients to seek guidance from their respective State Administrative Agencies on what, when, and how conditions will apply and be enforced.

But legality and enforcement, at least with respect to immigration, are NOW open questions.

III. Legal Challenges to the FY 2025 Immigration Terms and Conditions

There has been a recent legal challenge from several states to DHS inserting the immigration terms into awards letters as conditions for receiving federal disaster relief.

In late September, a senior Federal District Court judge granted a motion made by 20 States for a permanent injunction against the Department of Homeland Security immigration terms and conditions, calling them “coercive, ambiguous, unrelated to the purpose of the federal grants, and undermine[s] the system of federalism.” Among them, the ruling covers the discretionary preparedness grant programs. NSGP was specifically mentioned within the order as a covered program.

This week, in an additional order, the judge added further restrictions against the administration’s attempts to skirt the initial order through a new condition.

The latest order bars FEMA from enforcing the contested conditions and “any materially similar term requiring cooperation with federal immigration enforcement.” It further orders FEMA to “amend all award documents” to remove all mention of compliance with immigration law from award letters to localities.

For the States and localities – the State Administrative Agencies and the NSGP (and other) preparedness grant program applicants (and future award recipients), the court orders are welcome news. I hope that they will survive any appeal. Thus far, no appeal has been mentioned or filed. This, of course, could change on this contentious issue.

In the meantime, despite the legal reprieve on immigration, the FY 2025 NSGP application and awards processes remain murky, incomplete, undirected, and uncertain, including as they pertain to the enforcement of the DEI and other anti-discrimination provisions within the DHS Terms and Conditions that remain in effect.

All I can advise is for nonprofit sub-applicants to connect and stay in touch with their SAAs and to follow their lead on all guidance matters pertaining to the NSGP program.

I will continue to report what I know, as well.

Best,

Rob Goldberg
Principal
Goldberg & Associates, LLC
In partnership with Sphere State