Immigration Legislation and Issues in the 112th Congress
Congressional research reportDec 20, 2012
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Immigration Legislation and Issues in the
112th Congress
(name redacted), Coordinator
Specialist in Immigration Policy
December 20, 2012
Congressional Research Service
7-....
www.crs.gov
R42036
CRS Report for Congress
Prepared for Members and Committees of Congress
Immigration Legislation and Issues in the 112th Congress
Summary
Immigration has not been a front-burner issue for the 112th Congress. During the past two years,
however, Congress has taken legislative action on some measures containing provisions on a
range of immigration-related topics. The Consolidated Appropriations Act, 2012 (P.L. 112-74)
contains provisions on border security, visa security, tourist visas, and refugees. It also includes
limited language on other issues, such as employment eligibility verification and the H-2B
temporary worker visa. P.L. 112-176 extends the authorization for four immigration programs
(EB-5 visa program, E-Verify, Conrad State program, and special immigrant religious worker
program) for three years, until September 30, 2015. P.L. 112-205 provides statutory authority for
the Border Enforcement Security Task Force (BEST) initiative. P.L. 112-58 concerns military
service-based immigration benefits; P.L. 112-127 concerns border tunnels. P.L. 112-130 makes
Israeli nationals eligible for E-2 treaty investor visas.
Both the House and the Senate have passed different bills (H.R. 4970, S. 1925) to reauthorize the
Violence Against Women Act (VAWA). In addition, the House has passed bills that would make
changes to permanent employment-based and family-based admissions (H.R. 3012); create new
visa categories for prospective LPRs with graduate degrees in science, technology, engineering,
or mathematics (STEM) fields (H.R. 6429); and reauthorize a temporary worker category for
foreign nurses (H.R. 1933). It has also passed legislation with provisions on border security at and
between ports of entry (H.R. 1299) and student visa reform (H.R. 3120).
In other action on immigration-related legislation, the House Judiciary Committee has reported or
ordered reported bills on electronic employment eligibility verification (H.R. 2885), immigrant
detention (H.R. 1932), visa security (H.R. 1741), and the diversity visa (H.R. 704). House and
Senate Committees have considered different DHS authorization bills. The Senate Homeland
Security and Governmental Affairs Committee has reported S. 1546, and the House Homeland
Security Committee has ordered reported H.R. 3116. Bills on victims of trafficking have been
reported by the Senate Judiciary Committee (S. 1301) and ordered reported by the House Foreign
Affairs Committee (H.R. 2830). The House Natural Resources Committee has reported bills
addressing border enforcement activities on federal lands (H.R. 1505, which also was included as
an amendment to H.R. 3116) and foreign residents of the Commonwealth of the Northern
Mariana Islands (CNMI), a U.S. territory in the Pacific (H.R. 1466). In addition, House and
Senate committees and subcommittees have held hearings on a number of immigration-related
issues.
This report discusses immigration-related issues that have received legislative action or are of
significant congressional interest in the 112th Congress. Department of Homeland Security (DHS)
appropriations are addressed in CRS Report R41982, Homeland Security Department: FY2012
Appropriations, and, for the most part, are not covered here.
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Immigration Legislation and Issues in the 112th Congress
Contents
Introduction...................................................................................................................................... 1
Border Security ................................................................................................................................ 1
At Ports of Entry........................................................................................................................ 2
Entry-Exit Screening ........................................................................................................... 2
Between Ports of Entry .............................................................................................................. 3
Border Patrol Staffing ......................................................................................................... 4
Border Surveillance and Technology .................................................................................. 4
Tactical Infrastructure and Border Fencing ......................................................................... 5
Border Enforcement Security Task Force (BEST) Initiative............................................... 5
Activities on Federal Lands and Waivers of Environmental Laws ..................................... 6
Border Enforcement Metrics ............................................................................................... 7
Electronic Employment Eligibility Verification .............................................................................. 7
Preemption of State and Local Employment-Verification Measures......................................... 9
Immigrant Detention ...................................................................................................................... 10
Visa Security .................................................................................................................................. 11
Per-Country Limits on Permanent Admissions.............................................................................. 12
Science, Technology, Engineering, and Mathematics (STEM) Visas ............................................ 14
Diversity Visas ............................................................................................................................... 14
Foreign Temporary Nurses ............................................................................................................ 15
U.S. Refugee Program ................................................................................................................... 16
Other Issues and Legislation .......................................................................................................... 17
Secure Communities and the 287(g) Program ......................................................................... 17
State and Local Immigration Measures ................................................................................... 18
Limits on Executive Branch Discretion................................................................................... 19
Immigration Provisions of the Violence Against Women Act ................................................. 20
Victims of Trafficking ............................................................................................................. 21
Immigrant Investors................................................................................................................. 22
Special Immigrant Program for Religious Workers ................................................................ 23
Tourist Visas ............................................................................................................................ 23
Foreign Temporary Agricultural Workers................................................................................ 24
Unauthorized Students............................................................................................................. 25
Birthright Citizenship .............................................................................................................. 26
Commonwealth of the Northern Mariana Islands ................................................................... 27
Professional Foreign Temporary Employees ........................................................................... 28
Other Legislation Receiving Action ........................................................................................ 29
Military Service-Based Immigration Benefits .................................................................. 29
E-2 Visas for Israeli Nationals........................................................................................... 29
Student Visas ..................................................................................................................... 30
Visa Waiver Program......................................................................................................... 30
Waivers for Foreign Medical Graduates............................................................................ 31
Wage Requirements for H-2B Temporary Employment ................................................... 31
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Immigration Legislation and Issues in the 112th Congress
Contacts
Author Contact Information........................................................................................................... 32
Congressional Research Service
Immigration Legislation and Issues in the 112th Congress
Introduction
Immigration has not been a front-burner issue for the 112th Congress. Unlike in some past years,
there has been little discussion in this Congress of comprehensive immigration reform legislation,
which typically has encompassed border security, employment eligibility verification, temporary
worker programs, permanent admissions, and unauthorized aliens, among other issues.
The 112th Congress has, however, taken legislative action on some immigration-related measures.
The Consolidated Appropriations Act, 2012 (P.L. 112-74) contains provisions on border security,
visa security, tourist visas, refugees, and other immigration issues. P.L. 112-176 extends the
authorization for four immigration programs (EB-5 visa program, E-Verify, Conrad State
program, and special immigrant religious worker program) for three years, until September 30,
2015. Legislation has also been enacted on military service-based immigration benefits (P.L. 11258), border tunnels (P.L. 112-127), the Border Enforcement Security Task Force (BEST) initiative
(P.L. 112-205), and E-2 treaty investor visas (P.L. 112-130).
In addition, the House and Senate have each passed other immigration-related legislation. Both
houses have passed different bills (H.R. 4970, S. 1925) to reauthorize the Violence Against
Women Act (VAWA). The House has passed bills that would reform permanent employmentbased and family-based admissions (H.R. 3012); create new visa categories for prospective LPRs
with graduate degrees in science, technology, engineering, or mathematics (STEM) fields (H.R.
6429); and reauthorize the H-1C temporary worker category for nurses (H.R. 1933). It also has
passed legislation on border security at and between ports of entry (H.R. 1299) and student visa
reform (H.R. 3120). Among the other subjects of immigration-related legislation before the 112th
Congress are victims of trafficking (S. 1301, H.R. 2830), immigrant detention (H.R. 1932), and
diversity visas (H.R. 704).
This report discusses these and other immigration-related issues that have received legislative
action or are of significant congressional interest in the 112th Congress. Department of Homeland
Security (DHS) appropriations are addressed in a separate report1 and, for the most part, are not
covered here.
Border Security
DHS is charged with protecting U.S. borders from weapons of mass destruction, terrorists,
smugglers, and unauthorized aliens. Border security involves securing the many means by which
people and things can enter the country. Operationally, this means controlling the official ports of
entry (POE) through which legitimate travelers and commerce enter the country, and patrolling
the nation’s land and maritime borders to safeguard against and interdict illegal entries.
At ports of entry, the U.S. Customs and Border Protection (CBP) Office of Field Operations is
responsible for conducting immigration, customs, and agricultural inspections of travelers seeking
admission to the United States. Between POEs, CBP’s border patrol is responsible for enforcing
1
CRS Report R41982, Homeland Security Department: FY2012 Appropriations, coordinated by (name redacted)
and (name redacted).
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U.S. immigration law and other federal laws along the border and for preventing unlawful entries
into the United States. In the course of discharging its duties, the border patrol patrols 8,500 miles
of U.S. international borders with Mexico and Canada and the coastal waters around Florida and
Puerto Rico.
Border security has been an important issue for the last several Congresses, with much of the
debate focused on whether DHS has sufficient resources to fulfill its border security mission.
Some Members of Congress have argued that Congress should not consider other reforms to the
immigration system, including any proposed legalization provisions or changes to the family- or
employment-based visas systems, until DHS is better able to secure the border. With
apprehensions of unauthorized immigrants at a 42-year low, administration officials have argued
that significant progress has been made at the border, though continued investments are needed.2
The following discussion focuses on key border-related provisions that have been considered by
the 112th Congress and may be considered in the future concerning staffing and enforcement at
and between POEs, including on federal lands.
At Ports of Entry
The overarching immigration challenge at POEs is to prevent terrorists and unauthorized migrants
from being admitted to the United States, while also facilitating legal migration flows. This
challenge translates into policy questions about funding for various CBP screening and
enforcement programs, including the number of CBP officers at POEs, which has grown from
17,881 in FY2005 to 21,186 in FY2012. Three hundred additional CBP officers were funded
during the FY2012 appropriations process, and several other bills that would address additional
POE staffing increases have been considered in the 112th Congress. For example, the Secure
Border Act of 2012 (H.R. 1299), passed by the House in May 2012, would direct DHS to develop
metrics to measure security at ports of entry and to estimate the required number of CBP officers
at POEs. The Department of Homeland Security Authorization (DHSA) Act of 2011 (S. 1546), as
reported by the Senate Homeland Security and Governmental Affairs Committee, would direct
DHS to develop a workforce staffing model and to ensure that CBP has instituted an outbound
inspections program at land, air, and maritime ports of entry.
Entry-Exit Screening
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208, Div.
C), as amended, requires DHS to maintain an automated, biometric entry-exit system that collects
a record of arrival and departure for every alien arriving to and departing from the United States.
The U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) program is responsible
for collecting and storing biometric and biographic data about foreign visitors to the United
States, and for providing biometric and biographic information about U.S. visitors to other
components within DHS and other federal agencies.3
2
See, for example, Testimony of Department of Homeland Security Secretary Janet Napolitano, U.S. Congress, Senate
Committee on Homeland Security and Governmental Affairs, Securing the Border: Progress at the Federal Level,
hearing, 112th Cong., 1st sess., May 4, 2011.
3
Biometric data include fingerprints and digital photographs, and may be used to confirm an individual’s identity
against previously recorded biometric data (i.e., by matching fingerprints); biographic data include names, birthdates,
and other identifying information and can be connected to an individual’s case history and immigration records, but
(continued...)
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US-VISIT, which is active at all POEs, has been a subject of debate because it does not collect
biometric data from all visitors entering the United States and does not collect any biometric data
from visitors leaving the United States, potentially weakening its effectiveness as an enforcement
tool.4 (CBP collects biographic data from all visitors lawfully admitted to the United States; from
certain people exiting through land ports; and, based on carrier information, from all passengers
departing though air and sea ports.) Department of Homeland Security Authorization bills, as
ordered to be reported by the House Homeland Security Committee (H.R. 3116) and as reported
by the Senate Homeland Security and Governmental Affairs Committee (S. 1546), would require
DHS to develop a plan for implementing a biometric exit system.5
Between Ports of Entry
Between ports of entry, congressional attention in recent years has focused on border patrol
staffing, surveillance technology, and fencing and other physical barriers.6 One effect of increased
border enforcement has been that smugglers increasingly have turned to cross-border tunnels,
particularly for moving illegal drugs into the United States. To combat this trend, Congress
passed the Border Tunnel Prevention Act of 2012 (P.L. 112-127), which creates a new federal
crime relating to the unlawful construction or use of an underground tunnel between the United
States and another country, and requires DHS to submit annual reports to Congress on the
investigations of unlawful tunnels between Mexico and the United States.
A new border patrol national strategy published in May 2012 continues to emphasize staffing,
surveillance, and infrastructure, with an increased focus on intelligence and risk management to
allocate enforcement resources efficiently.7 House and Senate FY2012 DHS authorization8 and
appropriations9 bills include related provisions, as discussed below.
(...continued)
cannot confirm the identity of arriving and departing passengers. For background information on US-VISIT see
archived CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa
M. Seghetti and (name redacted).
4
See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, From the 9/11 Hijackers to Amine el-Khalifi: Terrorists and the Visa Overstay Problem, hearing, 112th Cong.,
2nd sess., March 6, 2012. With some exceptions, all non-U.S. citizens arriving at U.S. air, land, and sea ports of entry
are required to submit biometric data through the US-VISIT program. Among the exceptions are Canadians applying
for admission to the United States as B-1/B-2 visitors for business or pleasure and LPRs arriving at land ports of entry
who are not referred to secondary inspection.
5
S. 1546, Section 505, as reported; H.R. 3116 was amended during Committee mark up to direct DHS to provide
Congress with a plan to implement a biometric exit system within two years, or to provide Congress with a plan to
implement an alternative program within two years.
6
For a fuller discussion of border enforcement between ports of entry, see CRS Report R42138, Border Security:
Immigration Enforcement Between Ports of Entry, by (name redacted).
7
U.S. Border Patrol, 2012-2016 Border Patrol Strategic Plan, Washington, DC, May 2012, http://www.cbp.gov/
linkhandler/cgov/border_security/border_patrol/bp_strat_plan/bp_strat_plan.ctt/bp_strat_plan.pdf; also see U.S.
Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Measuring
Border Security: Border Patrol’s New Strategic Plan and the Path Forward, 112th Cong., 2nd sess., May 8, 2012.
8
H.R. 3116, as ordered reported by the House Homeland Security Committee; S. 1546, as reported by the Senate
Homeland Security Committee.
9
H.R. 5855, as passed by the House; S. 3216, as reported by the Senate Appropriations Committee.
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In other related legislative action, Congress has passed the Jaime Zapata Border Enforcement
Security Task Force Act (P.L. 112-205), which provides statutory authority for the Border
Enforcement Security Task Force. Congress may also take additional action on proposals to
broaden DHS authority to conduct enforcement activities on federal lands and waive
environmental and other regulations and to address concerns about metrics for measuring border
security.
Border Patrol Staffing
With ongoing support from Congress, DHS has substantially increased border patrol staffing
along the Southwest and northern borders over the last decade, with total border patrol staffing
increasing from 9,821 in FY2001 to 21,370 for FY2012, including 1,000 border patrol agents
added by the FY2010 Border Security Supplemental (P.L. 111-230) and funded again in P.L. 11274.10 A number of bills have been introduced in the 112th Congress to authorize further growth in
the border patrol and/or to direct the Department of Defense (DOD) to deploy National Guard
troops to the Southwest border.11
Border Surveillance and Technology
For several years, Congress has supported a series of DHS programs aimed at achieving “border
situational awareness.” Through these programs, CBP agents track movement in border areas,
identify and classify (i.e., prioritize) illegal entries, correlate entries with the positions of nearby
agents, and use this information to make tactical interdiction decisions. DHS’s primary effort to
provide such an integrated surveillance system between 2006 and 2011 was known as SBInet. But
cost overruns, technical problems, and scheduling delays led the agency to terminate the SBInet
contract in January 2011 in favor of a new Arizona Border Technology Plan that relies on a
broader mix of off-the-shelf surveillance technology and continued investment in SBInet-style
integrated surveillance towers.12
The new plan has been a subject of some scrutiny. P.L. 112-74 provides $400 million for border
security fencing and technology for FY2012, $128 million less than the President’s request,13 and
both chambers have recommended additional cuts in FY2013.14 A pair of recent U.S. Government
10
U.S. Border Patrol, Border Patrol Agent Staffing by Fiscal Year, http://www.cbp.gov/linkhandler/cgov/
border_security/border_patrol/usbp_statistics/staffing_92_10.ctt/staffing_92_10.pdf; U.S. Department of Homeland
Security, Congressional Budget Justification FY2012, p. CBP S&E – 66.
11
See, for example, National Guard Border Enforcement Act (H.R. 152), Secure America Through Verification and
Enforcement (SAVE) Act of 2011 (H.R. 2000), and Border Security Enforcement Act of 2011 (BSEA, H.R. 1507/S.
803). Also see S. 1546, which would direct DHS to develop a bi-annual workforce staffing plan.
12
Testimony of U.S. Customs and Border Protection Assistant Commissioner Mark S. Borkowski, U.S. Congress,
House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Strengthening the Border:
Finding the Right Mix of Personnel, Infrastructure and Technology, hearing, 112th Cong., 1st sess., March 15, 2011.
13
See U.S. Congress, House Committee on Appropriations, Department of Homeland Security Appropriations Bill,
2012, report to accompany H.R. 2017, 112th Cong., 1st sess., May 26, 2011, H.Rept. 112-91, pp. 41-43; and U.S.
Congress, Senate Committee on Appropriations, Department of Homeland Security Appropriations Bill, 2012, report to
accompany H.R. 2017, 112th Cong., 1st sess., September 7, 2011, S.Rept. 112-74, pp. 43-44.
14
See U.S. Congress, House Committee on Appropriations, Department of Homeland Security Appropriations Bill,
2013, 112th Cong., 2nd sess., May 23, 2012, H.Rept. 112-492, p. 45; U.S. Congress, Senate Committee on
Appropriations, Department of Homeland Security Appropriations Bill, 2013, 112th Cong., 2nd sess., May 22, 2012,
S.Rept. 112-169, p. 42.
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Accountability Office (GAO) reviews of the Arizona Technology plan found that DHS has not
documented the analysis justifying the specific technologies being proposed; has not defined
metrics to assess the plan; and has not developed robust life-cycle cost estimates for the plan.15
Recent Congresses have also supported DHS’s use of surveillance aircraft, including unmanned
aerial systems (UAS). Several bills in the current Congress would authorize additional
collaboration between DHS and DOD on aerial surveillance,16 though questions have been raised
about privacy and safety concerns with respect to increased domestic use of UAS.17
Tactical Infrastructure and Border Fencing
Since Congress passed the Secure Fence Act of 2006, DHS has installed over 400 miles of
pedestrian fencing and vehicle barriers along the Southwest border. As of August 2012, DHS
reports a total of 352 miles of pedestrian fencing and 299 miles of vehicle fencing in place along
the Southwest border, along with 36 miles of secondary fencing. This represents 99.8% of the 652
miles of total fencing and barriers that CBP plans to install,18 and 93.1% of the 700 miles of
fencing and barriers specified by Congress in the Consolidated Appropriations Act, 2008 (P.L.
110-161, Div. E).19 Several pieces of legislation introduced in the 112th Congress would authorize
or require additional fencing and barriers.20
Border Enforcement Security Task Force (BEST) Initiative
Since 2006, DHS’s U.S. Immigration and Customs Enforcement (ICE) has partnered with federal,
state, local, and foreign law enforcement in a pilot program known as the Border Enforcement
Security Task Force (BEST) initiative. The BEST initiative fosters coordination among law
enforcement officials in border communities through of a series of multi-agency teams developed
to identify, disrupt, and dismantle criminal organizations posing significant threats to border
security. The Jaime Zapata Border Enforcement Security Task Force Act (H.R. 915), as passed by
the House in May 2012, would provide statutory authority for the BEST program and would
authorize program funding for FY2012-FY2016. The act also would require annual reports on the
program’s effectiveness. In August 2012, the Senate Homeland Security and Governmental
Affairs Committee reported H.R. 915 without the funding authorization (given that the initiative
is already operational) and without authority to fund foreign law enforcement agencies. In
15
U.S. Government Accountability Office, 2012 Annual Report: Opportunities to Reduce Duplication, Overlap and
Fragmentation, Achieve Savings, and Enhance Revenue, GAO-12-342SP, February 2012, p. 299, http://www.gao.gov/
assets/590/588818.pdf; U.S. Government Accountability Office, Arizona Border Surveillance Technology: More
Information on Plans and Costs Is Needed Before Proceeding, GAO-12-22, November 4, 2011, http://www.gao.gov/
products/GAO-12-22.
16
See, for example, BSEA of 2011 (H.R. 1507/S. 803) and SAVE Act (H.R. 2000).
17
See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Oversight,
Investigations, and Management, Using Unmanned Aerial Systems within the Homeland: Security Game Changer?,
112th Cong., 2nd sess., July 19, 2012.
18
CBP Office of Legislative Affairs communication with CRS, August 6, 2012.
19
Section 564 of P.L. 110-161 requires DHS to install not less than 700 miles of border fencing, but also specifies that
DHS is not required to install fencing in any location in which “the Secretary determines that the use or placement of
such resources is not the most appropriate means to achieve and maintain operational control over the international
border at such location.”
20
See, for example, Unlawful Border Entry Prevention Act of 2011 (H.R. 1091) and BSEA (H.R. 1507/S. 803).
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November, the House approved a motion to suspend the rules and agree to the Senate version of
the bill; the President signed the bill into law (P.L. 112-205) on December 7, 2012.
Activities on Federal Lands and Waivers of Environmental Laws
Over 800 miles of the Southwest border and over 1,000 miles of the northern border consist of
national forests and parks and other federal lands.21 The 112th Congress has held hearings on
challenges associated with immigration enforcement on federal lands.22 Historically, these
challenges have included jurisdictional conflicts between the border patrol and agencies within
the Departments of the Interior (DOI) and Agriculture (USDA) that are responsible for law
enforcement on federal borderlands,23 and lawsuits filed under environmental laws and
regulations that have blocked or delayed fence construction.
Administration officials report that recent memoranda of agreement among DHS, DOI, and
USDA have led to greater cooperation with respect to immigration enforcement on federal
lands,24 and legislation passed between 1996 and 2006 gave DHS broad authority to waive
environmental statutes and other requirements that might otherwise delay construction.25
Nonetheless, a recent GAO report recommended that additional steps be taken to improve
information sharing and interagency communication.26 Legislation has been introduced in the
112th Congress that would waive application of certain environmental laws to border enforcement
activities on lands near the border and would allow DHS to conduct certain security activities on
federal lands without permission from DOI or USDA, including routine motorized patrols and
deployment of temporary tactical infrastructure.27
21
For a fuller discussion of immigration enforcement on federal lands and other issues related to federal lands, see CRS
Report R42346, Federal Land Ownership: Overview and Data, by (name redacted), (name redacted), and (name
redacted).
22
See, for example, U.S. Congress, House Committee on Natural Resources, Subcommittee on National Parks, Forests
and Public Lands and House Committee on Oversight and Government Reform, Subcommittee on National Security,
Homeland Defense, and Foreign Operations, The Border: Are Environmental Laws and Regulation Impeding Security
and Harming the Environment?, hearing, 112th Cong., 1st sess., April 15, 2011.
23
See, for example, U.S. Government Accountability Office (GAO), Border Security: Additional Actions Needed to
Better Ensure a Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177, November 2010,
http://www.gao.gov/new.items/d11177.pdf.
24
Testimony of U.S. Customs and Border Protection Deputy Chief Ronald Vitiello, U.S. Congress, House Committee
on Natural Resources, Subcommittee on National Parks, Forests, and Public Lands, The Border: Are Environmental
Laws and Regulations Impeding Security and Harming the Environment?, hearing, 112th Cong., 1st sess., April 15,
2011.
25
§102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208, Div.
C); §102 of the REAL ID Act of 2005 (P.L. 109-13, Div. B).
26
U.S. Government Accountability Office (GAO), Border Security: Additional Actions Needed to Better Ensure a
Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177, November 2010,
http://www.gao.gov/new.items/d11177.pdf.
27
See, for example, National Security and Federal Lands Protection Act (H.R. 1505), BSEA (H.R. 1507/S. 803), and
House version of the DHSA of 2011 (H.R. 3116).
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Border Enforcement Metrics
Obama Administration officials have described the Southwest border as being “more secure than
ever,”28 but some Members of Congress question the Administration’s metrics for measuring
border security. For many years, DHS and its predecessor, the Immigration and Naturalization
Service, have used apprehensions by the border patrol as a proxy measure of illegal entries (and
thus, of border security), but analysts consider apprehensions an imperfect measure.29 CBP plans
to begin using a new “border conditions index” in 2013; the index reportedly will include
apprehensions as one of several elements in an effort to more comprehensively describe security,
trade and tourism conditions, and quality of life on the border.30
Some Members of Congress have expressed skepticism about the border conditions index.31
Members also have expressed frustration that DHS in 2010 stopped publishing annual estimates
of the number of miles of the border under “operational” or “effective” control.32 The Border
Security Act of 2012 (H.R. 1299), as passed by the House, would direct DHS to either (1)
develop a strategy for achieving operational control of the border as defined in section two of the
Secure Fence Act of 2006 (P.L. 109-367) as “the prevention of all unlawful entries into the United
States,” or (2) work with a Department of Energy National Laboratory to develop a new metric
for border security between ports of entry. H.R. 1299 also would direct DHS to develop metrics
to measure the effectiveness of border security at ports of entry.
Electronic Employment Eligibility Verification
Employment eligibility verification has received attention in the 112th Congress. Several related
bills have been introduced, including the Legal Workforce Act (H.R. 2885), which was ordered
reported by the House Judiciary Committee in September 2011. An earlier version of this bill
(H.R. 2164) was the subject of a hearing by the House Judiciary Committee’s Subcommittee on
Immigration Policy and Enforcement. Employment eligibility verification and the related issue of
worksite enforcement are widely viewed as essential components of a strategy to reduce
unauthorized immigration.
Under §274A of the Immigration and Nationality Act (INA),33 it is unlawful for an employer to
knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to
be so employed. Employers are further required to participate in a paper-based (I-9) employment
eligibility verification system in which they examine documents presented by new hires to verify
28
See, for example, U.S. Department of Homeland Security (DHS), “Secretary Napolitano’s Remarks on Smart
Effective Border Security and Immigration Enforcement,” press release, October 5, 2011, http://www.dhs.gov/ynews/
speeches/20111005-napolitano-remarks-border-strategy-and-immigration-enforcement.shtm.
29
See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
30
CBP Office of Congressional Affairs, December 22, 2011
31
See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, Measuring Border Security: Border Patrol’s New Strategic Plan and the Path Forward, 112th Cong., 2nd
sess., May 8, 2012.
32
Ibid. CBP published such estimates in FY2005-FY2009 annual financial reports. DHS defined the border as being
under effective control if the border patrol could detect, respond, and interdict cross-border illegal activity. See CRS
Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
33
Act of June 27, 1952, ch. 477; 66 Stat. 163; codified as amended at 8 U.S.C. §1101 et seq. The INA is the basis of
current immigration law.
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identity and work eligibility, and to complete and retain I-9 verification forms. Employers
violating prohibitions on unlawful employment may be subject to civil and/or criminal penalties.
Enforcement of these provisions is termed “worksite enforcement” and is the responsibility of
DHS’s ICE.
While all employers must meet the I-9 requirements, they may also elect to participate in the EVerify electronic employment eligibility verification system.34 E-Verify is administered by DHS’s
U.S. Citizenship and Immigration Services (USCIS). Participants in E-Verify electronically verify
new hires’ employment authorization through Social Security Administration (SSA) and, if
necessary, DHS databases.35 E-Verify is a temporary program. P.L. 112-176 extends its
authorization for three years, until September 30, 2015.
Several bills introduced in the 112th Congress would variously make E-Verify permanent, require
its use for verification of new hires, and permit or require its use for verification of previously
hired workers.36 Other bills would authorize a new electronic employment eligibility verification
system to replace E-Verify.37 Discussion of proposals to expand electronic employment eligibility
verification requirements—whether though E-Verify or another system—have raised some
concerns about labor shortages in sectors of the economy that are known to employ large
numbers of unauthorized aliens, such as agriculture. (Legislative proposals on foreign agricultural
workers are discussed in a subsequent section.)
Among the bills that would authorize a new electronic verification system is H.R. 2885, which
has been ordered reported by the House Judiciary Committee. The new system would be modeled
on E-Verify and the authorizing language would be added to INA §274A. Under H.R. 2885, as
ordered reported, the new verification system would be mandatory for all employers in cases of
hiring, recruitment, and referral. The verification requirements with respect to hiring would be
phased in by employer size, with the largest employers required to participate six months after the
date of enactment and the smallest employers required to participate two years after the date of
enactment. The requirements with respect to recruitment and referral would apply one year after
the date of enactment. The bill would also provide for mandatory reverification of workers with
limited work authorization. These reverification requirements would be phased in on the same
schedule as the hiring requirements. Special provisions would apply to agriculture; the hiring,
recruitment and referral, and reverification provisions would not apply to agricultural workers
until three years after the date of enactment. As introduced, the bill also provided that seasonal
agricultural workers returning to work for a previous employer would not be treated as new hires
for verification purposes, but an amendment to strike this language was agreed to at the markup.
H.R. 2885, as ordered reported, would require or permit electronic verification in ways not
currently allowed under E-Verify. Verification of previously hired individuals would be
mandatory in some cases (such as, federal, state, and local government employees), while
employers could verify current employees on a voluntary basis beginning 30 days after
34
While E-Verify is primarily a voluntary program, there are some mandatory participants. See CRS Report R40446,
Electronic Employment Eligibility Verification, by (name redacted).
35
For additional information on E-Verify, see Ibid.
36
See, for example, Jobs Recovery by Ensuring a Legal American Workforce Act of 2011 (H.R. 800) and
Accountability Through Electronic Verification Act (S. 1196).
37
See, for example, Illegal Immigration Enforcement and Social Security Protection Act of 2011 (H.R. 98), Electronic
Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 483), and Legal Workforce Act (H.R.
2885).
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enactment. Under H.R. 2885, employers could conduct electronic verification after making an
offer of employment but before hiring, and could condition a job offer on final verification under
the system.
H.R. 2885, as ordered reported by the House Judiciary Committee, would increase existing civil
and criminal penalties for violations of INA §274A provisions on unauthorized employment. It
would also establish new penalties, including for individuals who knowingly provide social
security numbers or DHS identification numbers that belong to others and for employers who
submit such numbers for verification knowing that they belong to someone other than the subject
of the query. Lastly, the bill would direct the Secretary of Homeland Security, in consultation with
the Social Security Commissioner and the Director of the National Institute of Standards and
Technology, to establish a biometric employment eligibility verification pilot program that would
be voluntary for employers.
P.L. 112-74 contains some E-Verify-related language. For example, a provision in Division D of
the bill on DHS appropriations (§530) states that none of the funds made available to the DHS
Office of the Secretary and Executive Management under the act may be used for any new hires
not checked through E-Verify.
Preemption of State and Local Employment-Verification Measures
Some states and localities have sought to deter unauthorized aliens from entering or remaining
within their jurisdiction by requiring employers to use E-Verify and/or imposing sanctions on
employers found to have hired unauthorized aliens.38 In its May 26, 2011, decision in Chamber of
Commerce v. Whiting, the Supreme Court held that one such measure, the Legal Arizona Workers
Act, was not preempted by federal immigration law.39 Some lower courts had previously found
that similar measures were preempted, in part, because of the burdens that employers operating in
multiple states would bear in complying with different state laws.40 Some business groups have
responded to the Supreme Court’s decision in Whiting by lobbying for a single national electronic
verification regime.41 H.R. 2885, as ordered reported by the House Judiciary Committee, would
establish such a regime, expressly preempting state and local E-Verify measures, along with other
measures “relat[ing] to the hiring, continued employment, or status verification for employment
eligibility purposes, of unauthorized aliens.” However, H.R. 2885 would allow states and
localities to revoke the business or other licenses of employers who fail to electronically verify
the employment eligibility of their workers.
38
See CRS Report R41991, State and Local Restrictions on Employing Unauthorized Aliens, by (name redacted).
– U.S.—, 131 S. Ct. 1968 (2011). However, Whiting should not be construed to mean that all state and local E-Verify
measures are permissible. See, for example, Louisiana Assoc. Gen. Contractors, Inc. v. Jindal, No. 605912, Judgment,
19th Judicial District Court, Parish of East Baton Rouge, December 20, 2011 (finding that a Louisiana law that required
employers to use E-Verify to verify the work authorization of all employees was preempted by federal rules and
regulations governing E-Verify); Positronic Indus., Inc. v. City of Springfield, No. 12-3243-CV-S-RED, Order
Granting Preliminary Injunction (W.D. Mo., May 10, 2012) (preliminarily enjoining enforcement of a municipal
ordinance that would have fined employers who did not use E-Verify).
40
See, for example, Lozano v. City of Hazleton, 620 F.3d 170, 213 (3d Cir. 2010), vacated and remanded by 131 S. Ct.
2958 (2011).
41
See, for example, “Uptick in State Immigration Laws May Force Congress to Act, Speakers Say,” 5 Workplace
Immigration Report 381 (July 25, 2011).
39
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Other bills introduced in the 112th Congress would expressly preempt state and local measures
prohibiting employers from verifying new hires or current employees through E-Verify.42 Illinois
had enacted such a prohibition, but a reviewing court found it to be preempted by federal
immigration law.43
Immigrant Detention
Certain removable aliens cannot be removed from the United States because they do not have
travel documents permitting them to return to their country of origin or because the aliens are
more likely than not to be subject to torture if returned to the country of origin.44 The U.S.
Supreme Court ruled in Zadvydas v. Davis (2001)45 that such aliens could only be detained
following an order of removal for so long as is “reasonably necessary to bring about that alien’s
removal from the United States,” but that the INA “does not permit indefinite detention.” The
Court found that the presumptively reasonable limit for the post-removal-period detention is six
months, but indicated that continued detention may be warranted when the policy is limited to
specially dangerous individuals, such as terrorists or those in other special circumstances, and
strong procedural protections are in place.
Following the Court’s ruling in Zadvydas, new regulations were issued to comply with the
Court’s holding.46 ICE generally can only detain an alien beyond the initial 90-day removal
period if ICE determines that the alien is likely to abscond if released or that the alien poses a
danger to the public, or if ICE is likely to obtain travel documents for the alien in the near
future.47 Under regulation, ICE may not detain an alien for more than six months unless the
alien’s removal is likely in the reasonably foreseeable future, except in special circumstances,
including aliens who are detained on account of (1) having a highly contagious disease that is a
threat to public safety, (2) serious adverse foreign policy consequences of release, (3) security or
terrorism concerns, or (4) being considered specially dangerous due to having committed one or
more crimes of violence and having a mental condition making it likely that the alien will commit
acts of violence in the future.48
The House Judiciary Committee has reported the Keep Our Communities Safe Act of 2011 (H.R.
1932). Among other provisions, the bill would allow DHS to detain indefinitely, subject to sixmonth reviews, an alien under orders of removal who cannot be removed if (1) there is a
significant likelihood that the alien will be removed in the reasonably foreseeable future; (2) the
alien would have been removed but for the alien’s refusal to cooperate with the DHS Secretary’s
identification and removal efforts; (3) the alien has a highly contagious disease that poses a public
safety threat; (4) release would have serious adverse foreign policy consequences; (5) release
42
See, for example, Accountability Through Electronic Verification Act (S. 1196).
United States v. Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill., March 12, 2009).
44
For a discussion of the Convention Against Torture, see CRS Report RL32276, The U.N. Convention Against
Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens, by (name redacted).
45
533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).
46
See 8 C.F.R. §§241.13-14 and discussion at 66 Federal Register 56967 (November 14, 2001) of procedures for
determining whether there is no significant likelihood of removal in the reasonably foreseeable future and for
determining whether an alien is subject to special circumstances justifying continued detention.
47
8 C.F.R. §241.4.
48
Ibid.
43
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would threaten national security; (6) release would threaten the safety of the community, and the
alien has either been convicted of one or more aggravated felonies or other designated crimes or
been convicted of one or more crimes of violence and due to a mental condition or personality
disorder is likely to engage in future acts of violence; or (7) release would threaten the safety of
the community, and the alien has been convicted of at least one aggravated felony. The bill would
limit habeas corpus reviews49 of such detention and related actions or decisions to the U.S.
District Court for the District of Columbia. Also, the bill would permit unlimited detention of
certain aliens during pending removal proceedings.
Visa Security
The Department of State (DOS) and DHS both play key roles in administering the law and
policies on the admission of aliens to the United States. Although DOS’s Consular Affairs is
responsible for issuing visas, USCIS in DHS approves immigrant petitions, ICE in DHS operates
the Visa Security Program in selected U.S. embassies abroad, and CBP in DHS inspects all people
who enter the United States.
All foreign nationals seeking visas must undergo admissibility reviews performed by DOS
consular officers abroad. These reviews are intended to ensure that applicants are not ineligible
for admission to the United States under the grounds for inadmissibility spelled out in INA §212.
These criteria include health-related grounds, criminal history, security and terrorist concerns,
public charge (e.g., indigence), and previous immigration offenses.50
Consular officers use the Consular Consolidated Database (CCD) to screen visa applicants.
Records of all visa applications are now automated in the CCD, with some records dating back to
the mid-1990s. Since February 2001, the CCD has stored photographs of all visa applicants in
electronic form, and the CCD has stored 10-finger scans since 2007. In addition to indicating the
outcome of any prior visa application and comments by consular officers, the system links to
other security databases to flag problems that may have an impact on the issuance of the visa.
Congress is particularly interested in the Visa Security Program (VSP), which the ICE Office of
International Affairs (OIA) operates in certain high-risk consular posts. As described by DHS, the
VSP sends ICE special agents with expertise in immigration law and counterterrorism to foreign
consulates, where they perform visa security activities that complement the DOS visa screening
process. According to DHS, the VSP provides law enforcement resources not available to
consular officers. One of the major tasks for VSP agents is to screen visa applicants to determine
their risk profiles.
GAO released an evaluation of the VSP in 2011 that identified several shortcomings. In addition
to noting that tensions exist between consular officials and VSP agents, GAO was especially
concerned about the lack of standard operating procedures for VSP agents across the various
posts. Most importantly, perhaps, GAO stated that ICE has not expanded VSP to key high-risk
posts despite well-publicized plans to do so.51
49
Habeas corpus review is a legal action through which a person’s detention is reviewed for legality.
CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by (name redac
ted).
51
U.S. Government Accountability Office (GAO), Border Security: DHS’s Visa Security Program Needs to Improve
(continued...)
50
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Despite the VSP’s implementation problems, some observers maintain that DHS should play a
larger role in visa security. In their view, DOS retains too much power over visa issuances, and
consular officers are too concerned about facilitating tourism and trade to thoroughly scrutinize
visa applicants. From this perspective, greater responsibility should be given to the VSP, which
does not have competing priorities of diplomatic relations and reciprocity with foreign
governments, and may subject visa applications to greater scrutiny.52
Along these lines, the House Committee on the Judiciary has reported the Secure Visas Act (H.R.
1741) that would give the Secretary of Homeland Security “exclusive authority to issue
regulations, establish policy, and administer and enforce the provisions of the Immigration and
Nationality Act (8 U.S.C. §1101 et seq.) and all other immigration or nationality laws relating to
the functions of consular officers of the United States in connection with the granting and refusal
of a visa.”
In addition to these broader concerns about visa security, Congress has also addressed matters of
exclusion and inadmissibility. More specifically, Division I, §4505(a)(3)(A), of P.L. 112-74
instructs the Secretary of State not to issue a visa to any alien who has willfully supported the
Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), the
United Self-Defense Forces of Colombia (AUC), or other illegal armed group. The ban also
includes aliens who have committed, ordered, incited, assisted, or otherwise participated in the
commission of a violation of human rights in Colombia. The law states that the denial must be
based upon credible evidence and allows the Secretary to grant waivers on a case-by-case basis if
deemed necessary to support the peace process or for urgent humanitarian reasons.
Per-Country Limits on Permanent Admissions
The INA specifies that each year, countries are held to a numerical limit of 7% of the total
worldwide level of U.S. immigrant admissions,53 known as the per-country limit.54 This provision
was intended to prevent any single country from dominating admissions to the United States. The
per-country level is not a “quota” set aside for individual countries, as each country in the world
could not receive 7% of the overall limit.
The per-country limit applies to legal permanent resident (LPR) admissions under the four
family-sponsored admission classes and the five employment-based admissions classes.55 The
limit applies to total annual admissions under the preference system, as well as within the
(...continued)
Performance Evaluation and Better Address Visa Risk Worldwide, GAO-11-315, March 31, 2011, http://www.gao.gov/
products/GAO-11-315.
52
For additional information, see CRS Report R41093, Visa Security Policy: Roles of the Departments of State and
Homeland Security, by (name redacted).
53
The INA provides for a permanent annual worldwide level of 675,000 LPRs, but this level is flexible and certain
categories of LPRs are permitted to exceed the limits. INA §201; 8 U.S.C. §1151.
54
INA §202; 8 U.S.C. §1152.
55
The INA stipulates a floor of 226,000 for the four family-sponsored preference categories. The numerical limit for
the five employment-based preference categories is 140,000. For more information on these limits and their exceptions,
see CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, and CRS Report R42048, Numerical
Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings, both by (name redacted).
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employment-based and family-based preference categories.56 In recent years, two countries that
send large numbers of skilled immigrants to the United States, India and China, have been
oversubscribed in the 2nd and 3rd employment-based preference categories for persons with
advanced degrees and professional and skilled workers, respectively. To be “oversubscribed”
means that more visa petitioners are eligible and approved for the preference category than the
number allocated for that year, in that category, from that country. As a result, petitioners and
their employers applying under these employment-sponsored categories could expect to wait
several years to receive a visa.
Even as U.S. unemployment levels remain high, some employers assert that they continue to need
the “best and the brightest” workers, regardless of their country of birth, to remain competitive in
a worldwide market and to keep their firms in the United States. While support for increasing
employment-based immigration may be dampened by current economic conditions, proponents
argue it is essential for economic growth.57 Those opposing increases in employment-based LPRs
assert that there is no compelling evidence of labor shortages and cite the rate of unemployment
across various occupations and labor markets.58 They argue that recruiting foreign workers while
unemployment levels remain high would have a deleterious effect on salaries, compensation, and
working conditions of U.S. workers.59
The Fairness for High-Skilled Immigrants Act (H.R. 3012), as reported by the House Judiciary
Committee and passed by the House, would amend the INA to eliminate per-country ceilings on
permanent employment-based admissions and increase the per-country ceiling on permanent
family-based admissions from 7% to 15%. The bill would not alter the total number of LPRs
admitted under the family-based and employment-based preference systems. These changes in
H.R. 3012 would be instituted over four years. On November 29, 2011, the House passed H.R.
3012 by a vote of 389-15. 60 In the Senate, a similar bill (S. 1983) was introduced in December
2011.61
56
However, there are circumstances when the employment based per-country limits may be exceeded. For example, the
American Competitiveness in the Twenty-First Century Act of 2000 (P.L. 106-313) enabled the per-country ceilings
for employment-based immigrants to be surpassed for individual countries that are oversubscribed as long as visas are
available within the worldwide limit for employment-based preferences. As a result, employment-based preference
allocations may exceed the 7% per-country limit within the overall level of 140,000 annually.
57
Many of the comprehensive immigration reform bills since 2000 would have increased the total number of
employment-based immigrants. Some would have revised the employment-based preference categories. A merit-based
point system was also considered. For further background, see Appendix D in CRS Report RL32235, U.S. Immigration
Policy on Permanent Admissions.
58
For further discussion, see U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy
and Enforcement, STEM the Tide: Should America Try to Prevent an Exodus of Foreign Graduates of U.S. Universities
with Advanced Science Degrees?, hearing, 112th Cong., 1st sess., October 5, 2011; and CRS Report R40080, Job Loss
and Infrastructure Job Creation Spending During the Recession, by (name redacted).
59
For further discussion, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and
Protections, by (name redacted); and archived CRS Report 95-408, Immigration: The Effects on Low-Skilled and
High-Skilled Native-Born Workers, by (name redacted).
60
See CRS Report R42048, Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country
Ceilings, by (name redacted).
61
Other related Senate bills include S. 1857 and S. 1866.
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Science, Technology, Engineering, and Mathematics
(STEM) Visas
Rather than change the per-country limits on permanent admissions to address the issue of
oversubscribed countries in the employment-based system, as discussed in the preceding section,
some policymakers have proposed creating a separate visa category for prospective LPRs with
graduate degrees in science, technology, engineering, or mathematics (STEM) fields. By pulling
these individuals out of the numerically limited employment-based categories, this option would
free up visas for the other prospective LPRs waiting in the employment-based queue.
The STEM Jobs Act of 2012 (H.R. 6429) would eliminate the Diversity Visa Lottery and reallocate those 55,000 Diversity Visas to two new categories it would create for foreign STEM
graduates who have job offers in related fields. In September 2012, H.R. 6429 failed to receive
the necessary two-thirds vote to pass under suspension of the rules. The legislation garnered 257
yeas and 158 nays, with bipartisan support as well as bipartisan opposition.
The House passed a revised version of H.R. 6429 in November 2012. There are several
differences between this version and the one the House considered in September. Perhaps the
most significant addition to H.R. 6429 in the House-passed version is the expansion of the
nonimmigrant visa for family members with approved or pending LPR petitions, commonly
known as the “V” visa.62 The House-passed bill would allow the spouses and minor children of
LPRs to live in the United States on V visas (without employment authorization) while they wait
for their LPR petitions or visa applications to be adjudicated or their visas to become available.
Immediate relatives of LPRs would become eligible for V visas after a one-year wait.63
Diversity Visas
The purpose of the diversity immigrant visa lottery is, as the name suggests, to encourage legal
immigration from countries other than the major sending countries of current immigrants to the
United States. Current law weights the allocation of immigrant visas heavily toward aliens with
close family in the United States and, to a lesser extent, toward aliens who meet particular
employment needs. The diversity immigrant category was added to the INA by the Immigration
Act of 1990 (P.L. 101-649) to stimulate “new seed” immigration (i.e., to foster new, more varied
migration from other parts of the world).
To be eligible for a diversity visa, the INA requires that the foreign national must have a high
school education or the equivalent, or two years of experience in an occupation that requires at
least two years of training or experience. The foreign national or the foreign national’s spouse
must be a native of one of the countries listed as a foreign state qualified for the diversity visa
lottery. Diversity lottery winners, like all other aliens wishing to come to the United States, must
undergo reviews performed by DOS consular officers abroad and DHS immigration officers upon
62
For further background on the “V” visa, see CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, by (name redacted), p.8.
63
See CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and
Mathematics (STEM) Degrees, by (name redacted).
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entry to the United States. These reviews are intended to ensure that the aliens are not ineligible
for visas or admission under the grounds for inadmissibility spelled out in the INA.
The diversity lottery currently makes 50,000 visas available annually to natives of countries that
accounted for fewer than 50,000 immigrant admissions in total over the preceding five years. The
formula for allocating visas is based upon the statutory specifications; visas are divided among
six global geographic regions according to the relative populations of the regions.
Some argue that the diversity lottery should be eliminated and its visas used for backlog reduction
in other visa categories. Supporters of the diversity visa, however, argue that the diversity visa
provides “new seed” immigrants for an immigration system weighted disproportionately toward
family-based immigrants from a handful of countries. Critics of the diversity lottery warn that it is
vulnerable to fraud and misuse, and potentially an avenue for terrorists, citing the difficulties of
performing background checks in many of the countries eligible for the diversity lottery.
Supporters respond that background checks for criminal and national security matters are
performed on all prospective immigrants seeking to come to the United States, including those
winning diversity visas. The House Committee on the Judiciary has reported H.R. 704, the
Security and Fairness Enhancement for America Act of 2011 (SAFE for America Act), which
would amend the INA to eliminate the diversity visa lottery.64 On November 30, 2012, the House
passed H.R. 6429 (see preceding section), which includes the elimination of the Diversity Visa
Lottery.
Foreign Temporary Nurses
The H-1C nonimmigrant (temporary admission) category for nurses was established by a 1999
law (P.L. 106-95) and reauthorized in 2006 (P.L. 109-423) as a short-term solution for nursing
shortages in a limited number of medically underserved areas. Facilities have to be approved to
employ H-1C nurses.65 The authority to issue H-1C visas expired on December 20, 2009.
Previously, the law allowed for the issuance of 500 nonimmigrant visas to nurses each year, with
the proviso that the number of visas issued annually for employment in smaller states could not
exceed 25 and the number issued for employment in larger states could not exceed 50. The law
limited an H-1C nurse’s stay to three years.
H.R. 1933, as passed by the House, would reauthorize the H-1C category for three years. It also
would amend the law to allow for the issuance of 300 nonimmigrant visas to nurses each year,
and to limit an H-1C nurse’s initial stay to three years with the opportunity to renew the visa for
another three years (i.e., a total stay of six years). The bill would provide H-1C nurses with
portability by allowing an H-1C nurse to begin employment at another hospital approved to
employ aliens in this visa category while the petition filed by the new employer is being
adjudicated. Employment at the new facility would end if the petition is denied.
64
65
For additional information, see CRS Report R41747, Diversity Immigrant Visa Lottery Issues, by (name redacted).
There are 14 hospitals approved to hire H-1C nurses.
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U.S. Refugee Program
The admission of refugees to the United States is a perennial immigration issue. Refugee
admission and resettlement are authorized by the INA.66 Under the INA, a refugee is a person
who is outside his or her country and who is unable or unwilling to return because of persecution
or a well-founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Refugees are processed and admitted to the United
States from abroad. The Department of State handles overseas processing of refugees, and
DHS/USCIS makes final determinations about eligibility for admission.67 After one year in
refugee status in the United States, refugees are required to apply to adjust to LPR status.
Several bills have been introduced in the 112th Congress that would make various changes to the
U.S. refugee program. Some of these measures propose to reform the refugee admissions process,
such as by authorizing the President to designate groups of aliens of humanitarian concern that,
absent countervailing factors, would be considered refugees for purposes of admission and by
changing existing INA provisions regarding the admission of refugee spouses and children.68
Other proposals focus more directly on the resettlement assistance program for refugees and other
designated groups administered by the Department of Health and Human Services’ Office of
Refugee Resettlement (HHS/ORR).69
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg
amendment,” first enacted in 1989, required the Attorney General (now the Secretary of DHS) to
designate categories of former Soviet and Indochinese nationals for whom less evidence is
needed to prove refugee status, and provided for adjustment to LPR status for certain former
Soviet and Indochinese nationals denied refugee status. P.L. 108-199 amended the Lautenberg
amendment to add a new provision, known as the “Specter amendment,” to direct the Attorney
General to establish categories of Iranian religious minorities who may qualify for refugee status
under the Lautenberg amendment’s reduced evidentiary standard. The Lautenberg amendment
was regularly extended through FY2010. For FY2011, Congress extended the amendment only
until June 1, 2011, in P.L. 112-10 (Div. B, §2121(m)), and it temporarily terminated on that date.
It was re-enacted for FY2012 by P.L. 112-74 (Div. I, §7034(r)). FY2013 extension language is
included in the Department of State, Foreign Operations, and Related Programs Appropriations
Act, 2013 (S. 3241), as reported by the Senate Appropriations Committee.
66
The Refugee Act (P.L. 96-212, March 17, 1980) amended the INA to establish procedures for the admission of
refugees to the United States.
67
For additional information on the U.S. refugee program, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy, by (name redacted).
68
See, for example, Refugee Protection Act of 2011 (H.R. 2185/S. 1202).
69
See, for example, Domestic Refugee Resettlement Reform and Modernization Act of 2011 (H.R. 1475).
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Other Issues and Legislation
Secure Communities and the 287(g) Program
Two of ICE’s main programs designed to identify and remove certain aliens from within the
United States are Secure Communities and the 287(g) program.70 Under Secure Communities,
when participating law enforcement agencies submit the fingerprints of arrestees to the Federal
Bureau of Investigation (FBI) for criminal background checks, the fingerprints are also checked
against DHS databases. When an arrestee appears to be subject to removal, local ICE officials
may issue an immigration detainer to request that the arresting jurisdiction hold the person for up
to 48 hours and transfer them to ICE custody so that ICE may initiate removal proceedings.
ICE views Secure Communities as an efficient way to carry out the agency’s mandate to identify
aliens who have been convicted of crimes and to make the removal of these criminal aliens an
enforcement priority. Secure Communities was active in 3,074 of 3,181 (97%) law enforcement
jurisdictions as of August 1, 2012, and the Obama Administration plans to expand the program to
every law enforcement jurisdiction in the country by the end of 2013.71 Congress has consistently
met DHS funding requests for Secure Communities and some Members support the program. The
program has generated controversy, however, because some aliens identified and removed
through Secure Communities have not been convicted of “serious” crimes or any criminal offense
and because of concerns that state and local involvement in enforcing federal immigration law
could lead to racial profiling or strain police-community relations.72 Partly for these reasons,
some states and localities have sought to limit their participation in Secure Communities in
various ways; but after initially describing the program as optional, DHS has taken the position
since 2010 that communities may not “opt out” of the program.73
Under the 287(g) program, state and local law enforcement agencies may enter into agreements
with ICE to allow state and local law enforcement officials to receive ICE training and to perform
certain immigration enforcement activities under ICE supervision. Some 287(g) programs (“jail
screening” programs) allow local law enforcement officials to conduct migration screening as
persons are being booked into prisons or jails. Other 287(g) programs (“task force” programs)
allow them to conduct migration screening during the course of their regular police work outside
of the booking process.
As with Secure Communities, some people have raised concerns that the 287(g) program may
promote racial profiling and/or strain police-community relations. And a 2009 GAO report found
several problems with DHS’ oversight of the program.74 The program expanded from 3 to 55
70
For a fuller discussion of these and other interior enforcement programs see CRS Report R42057, Interior
Immigration Enforcement: Programs Targeting Criminal Aliens, by (name redacted) and (name redacted).
71
U.S. Immigration and Customs Enforcement, Secure Communities: Activated Jurisdictions, August 1, 2012,
http://www.ice.gov/doclib/secure-communities/pdf/sc-activated.pdf.
72
See U.S. Department of Homeland Security Advisory Council, “Task Force on Secure Communities Findings and
Recommendations,” September 2011.
73
See, for example, Tara Bahrampour, “Immigration Authority Terminates Secure Communities Agreements,” The
Washington Post, August 7, 2011, http://www.washingtonpost.com/local/immigration-authority-terminates-securecommunities-agreements/2011/08/05/gIQAlwx80I_story.html; Letter from John Morton, Director, U.S. Immigration
and Customs Enforcement, to Gerald Brown, Governor of California, August 5, 2011.
74
U.S. Government Accountability Office, Better Controls Needed over Program Authorizing State and Local
(continued...)
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jurisdictions between 2006 and 2008, but only 8 jurisdictions were added in 2009-2011,
according to ICE data.75 The Administration’s FY2013 budget proposes to reduce 287(g) funding
by 25% ($17 million) by discontinuing certain 287(g) programs in jurisdictions in which Secure
Communities has been activated and by not supporting new 287(g) task force programs.
Legislation related to Secure Communities and the 287(g) program has been introduced in the
112th Congress. In line with efforts to expand Secure Communities, several bills would deny
funding for various Department of Justice programs, including the State Criminal Alien
Assistance Program (discussed below), to jurisdictions that do not participate fully in Secure
Communities.76 Other proposed legislation would respond to concerns about whether state and
local participation in Secure Communities leads to racial profiling or interferes with policecommunity relations.77
Congress also may address proposed changes to Secure Communities and 287(g) funding through
the appropriations process. For example, the Senate-reported S. 3216 would provide the same
reduced level of FY2013 funding for the 287(g) program as the FY2013 budget request, while the
House-passed H.R. 5855 would fund the program for FY2013 at the higher FY2012 level and
would prohibit any funds made available under the act from being used to terminate a 287(g)
agreement that is in existence on the date of enactment of the act.
State and Local Immigration Measures
In recent years, several states and localities have sought to deter the presence of unauthorized
aliens within their jurisdictions through a variety of enforcement measures, with Arizona’s S.B.
1070 being perhaps the most notable example.78 Many of these measures have been challenged in
federal court, with litigation generally focusing on whether these enactments are consistent with
federal immigration law. The Supreme Court recently held in Arizona v. United States that some
aspects of S.B. 1070 that were intended to deter unlawfully present aliens from remaining in the
state were preempted by federal law, but the Court also held that federal law did not facially
preempt S.B. 1070’s requirement that Arizona police run immigration status checks on persons
stopped for state or local offenses.79 Several other state and local measures intended to deter the
presence of unlawfully present aliens (e.g., requiring schools to determine whether enrolling
students were born outside the United States or are the children of unauthorized aliens;
(...continued)
Enforcement of Federal Immigration Laws, GAO-09-109, January 30, 2009, http://www.gao.gov/products/GAO-09109.
75
U.S. Immigration and Customs Enforcement, Fact Sheet: Delegation of Immigration Authority Section 287(g)
Immigration and Nationality Act, Washington, DC, September 2, 2011, http://www.ice.gov/news/library/factsheets/
287g.htm#signed-moa.
76
See, for example, Enforce the Law for Sanctuary Cities Act (H.R. 1134), Strengthening Our Commitment to Legal
Immigration and America’s Security Act (S. 332), and H.R. 1764/S. 169.
77
See, for example, Traffic Stops Along the Border Statistics Study Act of 2011 (H.R. 228).
78
See, generally, CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration
Enforcement, by (name redacted) and (name redacted).
79
Arizona v. United States, 132 S. Ct. 2492 (2012). Specifically, the Court struck down those provisions of S.B. 1070
that imposed criminal sanctions for alien registration violations and upon unauthorized aliens who seek employment in
the state, as well as a provision authorizing the warrantless arrest of aliens who have criminal offenses that constitute
grounds for removal under federal immigration law.
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prohibiting unlawfully present aliens from entering into certain “public records transactions”) are
the subject of ongoing litigation. 80
Given the unsettled state of the law in this area, particularly prior to the Court’s recent decision in
Arizona, some legislation introduced in the 112th Congress would purport to recognize that state
and local officers have “inherent authority” to enforce federal immigration law,81 or conversely,
would establish that state and local officers may only enforce federal immigration law pursuant to
a written agreement authorized under Section 287(g) of the INA.82
Limits on Executive Branch Discretion
The Obama Administration has observed that ICE does not have the funding or capacity to deport
every potentially removable alien identified by DHS, especially with the increased number of
such aliens identified through Secure Communities. In March and June 2011, ICE published a
pair of updated agency guidance memoranda governing the use of prosecutorial discretion during
immigration enforcement to ensure that removal resources go to high-priority cases.83 (These
memoranda are often referred to as the “Morton Memos.”) On August 18, 2011, DHS Secretary
Janet Napolitano announced in a letter to Senator Richard Durbin and others that the March and
June guidance would apply to all DHS immigration agencies.84 DHS and the Department of
Justice (DOJ) also created an interagency working group to review about 300,000 pending
removal cases on a case-by-case basis to consider administratively closing certain cases, and to
conduct expedited reviews of those cases that are not administratively closed. As of May 29,
2012, about 7% of the cases reviewed by the DHS-DOJ working group reportedly had been
identified as candidates for administrative closure.85
Some Members of Congress object to the Administration’s prosecutorial discretion policies and
have argued that for the Administration explicitly to identify certain types of cases that may be
closed amounts to an “administrative amnesty”; others describe prosecutorial discretion as a
critical tool to prevent misallocation of agency resources.86 The Department of Homeland
80
See, for example, Hispanic Interest Coalition of Alabama v. Governor of Alabama, 691 F.3d 1236 (11th Cir. 2012);
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance for Human Rights v. Governor of
Georgia, 691 F.3d 1250 (11th Cir. 2012); United States v. South Carolina, No. 2:11-cv-2958, 2012 U.S. Dist. LEXIS
170752 (D.S.C., November 15, 2012); Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011).
81
See, for example, CLEAR Act (H.R. 100).
82
See, for example, Comprehensive Immigration Reform Act (S. 1258).
83
John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, U.S. Department of Homeland Security, Immigration and Customs Enforcement, March 2, 2011,
http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf; John Morton, Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens, U.S. Department of Homeland Security, Immigration and Customs Enforcement,
June 17, 2011, http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
84
Letter from Janet Napolitano, Secretary of Homeland Security, to Senator Richard Durbin, August 18, 2011. Also see
Robert Pear, “Few Youths to be Deported in New Policy,” New York Times, August 18, 2011, p. A1; Testimony of
DHS Secretary Janet Napolitano, at U.S. Congress, Senate Committee on the Judiciary, Oversight of the Department of
Homeland Security, hearing, 112th Cong., 1st sess., October 19, 2011.
85
Immigration Policy Center, Prosecutorial Discretion: A Statistical Assessment, Washington, DC, June 11, 2012,
http://www.immigrationpolicy.org/sites/default/files/docs/pd_-_a_stastical_assessment_061112.pdf.
86
See, for example, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and
Enforcement, U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law, 112th Cong., 1st sess.,
(continued...)
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Security Appropriations Act, FY2013 (H.R. 5855), as passed by the House, would prohibit any
funding made available in the act from being used to “finalize, implement, administer, or enforce
the ‘Morton Memos’.” Partly in response to the June 2011 agency guidance, some bills
introduced in the 112th Congress would tighten the standards for certain forms of executive
branch discretion.87 Other proposed legislation, by contrast, could expand judicial relief from
removal by allowing immigration judges to consider factors not currently considered when
determining whether to grant cancellation of removal.88
Immigration Provisions of the Violence Against Women Act
The INA includes provisions to assist foreign national victims of domestic abuse.89 These
provisions were enacted by Congress with the Immigration Act of 1990 (P.L. 101-649) and the
Violence Against Women Act (VAWA) of 1994 (P.L. 103-322, Title IV). They afford benefits to
abused foreign nationals and allow them to self-petition for LPR status independently of their
U.S. citizen or LPR relatives. Congress reauthorized VAWA in 2000 (VAWA 2000), as part of the
larger Victims of Trafficking and Violence Protection Act (TVPA, P.L. 106-386). VAWA 2000
included the Battered Immigrant Women Protection Act of 2000 (Title V). This title created the
nonimmigrant U visa for foreign national victims of certain crimes—including domestic abuse—
who assist law enforcement. A second VAWA reauthorization in 2005 added protections and
expanded eligibility for abused aliens. Program authorizations in VAWA expired in 2011.
The Senate Judiciary Committee has reported S. 1925 to reauthorize VAWA. Title VIII of the
reported bill expands some protections under VAWA and the U visa provisions of the INA. The
bill would require DHS to conduct additional background checks of U.S. citizen and LPR spouse
petitioners who are sponsoring foreign national fiancées or fiancés. It would prohibit international
marriage brokers from marketing information about foreign nationals under age 18 and would
clearly define penalties for doing so. It also would extend VAWA coverage to derivative children
whose self-petitioning parent died during the petition process. In addition, the bill would include
“stalking” in the definition of criminal activity covered under the U visa. It would exempt VAWA
self-petitioners, U visa petitioners, and battered foreign nationals from being classified as
inadmissible for LPR status if their financial circumstances raised concerns about their potentially
becoming public charges.90 It would also temporarily increase the annual numerical cap on the U
visa from 10,000 to 15,000.
The House passed a different VAWA reauthorization bill (H.R. 4970) in May 2012. H.R. 4970
contains similar provisions to S. 1925 regarding additional background information requirements,
restrictions on marketing by international marriage brokers, and inadmissibility protections for
(...continued)
October 12, 2011.
87
See, for example, the Hinder the Administration’s Legalization Temptation (HALT) Act (H.R. 2497) and the
Deferred Action Reform Act of 2011 (H.R. 1853). Press releases announcing the introduction of the Hinder the
Administration’s Legalization Temptation (HALT) Act explicitly mentioned the June 17, 2011, ICE memorandum on
prosecutorial discretion.
88
See, for example, H.R. 250.
89
For more information, see CRS Report R42477, Immigration Provisions of the Violence Against Women Act
(VAWA), by (name redacted).
90
“Public charge” refers to an inability to take care of oneself without public assistance. See CRS Report RL33809,
Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends, by (name redacted), p. 6.
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abused aliens. However, H.R. 4970 also differs from S. 1925 in certain key respects. It would
permit DHS to admit credible evidence from alleged abusers for purposes of adjudicating VAWA
petitions; require local USCIS District Officers to interview VAWA petitioners in person; and
require USCIS to consider law enforcement investigations or prosecutions of alleged abusers, or
the lack thereof, as evidence when adjudicating petitions. Petition adjudication would be stayed
until pending investigations or prosecutions of abusive conduct alleged by the petitioning alien
were concluded. Likewise, the bill would require USCIS to consider previous applications for
immigration benefits and their outcomes. H.R. 4970 would limit LPR status eligibility for U visa
recipients to victims whose criminal perpetrators were aliens convicted of related crimes and
deported to the same country of origin as the victim. The bill would maintain the current annual
allocation of U visas at 10,000 and restrict circumstances under which U visa petitions could be
certified by law enforcement.
Two sets of concerns for Congress may arise regarding the immigration provisions of the VAWA
reauthorization legislation. The first is whether the proposed legislation provides sufficient relief
to foreign nationals who are abused by their U.S. citizen or LPR sponsoring relatives. Advocates
for battered immigrants suggest that additional provisions are needed to assist this population
obtain legal and economic footing. Others have expressed concern over the extent to which these
provisions may expand eligibility and incur costs to U.S. taxpayers. The second concern centers
on alleged immigration fraud perpetrated through VAWA and the extent to which the reported
legislation should address this issue. While some suggest that VAWA provides opportunities for
dishonest and enterprising immigrants to circumvent U.S. immigration laws, reliable empirical
support for these assertions is limited.
Victims of Trafficking
It is an international and a domestic crime to engage in trafficking in persons (TIP) for the
purposes of exploitation. TIP involves violations of labor, public health, and human rights
standards. Congress passed the Victims of Trafficking and Violence Protection Act in 2000 and
has reauthorized TVPA several times since, most recently in the 110th Congress (P.L. 110-457).
The current program authorizations expired at the end of FY2011. Domestically, TVPA and its
subsequent reauthorizations91 created two nonimmigrant visa categories: the T visa for victims of
severe forms of trafficking and, as discussed above, the U visa for victims of certain specified
crimes.92 The 2000 act and the reauthorizations also created several grant programs to aid
trafficking victims and to train law enforcement to combat TIP.
A House reauthorization bill, the Trafficking Victims Protection Reauthorization Act of 2011
(H.R. 2830), has been ordered reported by the House Foreign Affairs Committee.93 A Senate
reauthorization bill, the Trafficking Victims Protection Reauthorization Act of 2011 (S. 1301), has
been reported by the Senate Judiciary Committee. H.R. 2830 would extend current authorizations
in TVPA and its reauthorizations for FY2012 and FY2013, and would maintain most programs at
current authorization levels. S. 1301 would extend current authorizations in TVPA and its
91
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457), Trafficking
Victims Protection Reauthorization Act of 2005 (P.L. 109-164), and Trafficking Victims Protection Reauthorization
Act of 2003 (P.L. 108-193).
92
For additional information on these visa categories, see CRS Report RL34317, Trafficking in Persons: U.S. Policy
and Issues for Congress, by (name redacted) and Liana Sun Wyler
93
A related bill of the same name with same sponsor was introduced in the House (H.R. 3589) in December 2011.
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reauthorizations through FY2015 and would increase authorization levels by $2 million each for
the two main victim service grant programs.
Both H.R. 2830 and S. 1301 would make it a criminal offense to knowingly destroy—or, for a
period of more than 48 hours, to conceal, remove, confiscate, or possess—another person’s
passport or immigration or personal identification documents in the course of attempting to
commit fraud in foreign labor contracting or alien smuggling, or in order to unlawfully maintain,
prevent, or restrict the labor or services of the individual. In addition, both bills would make
several changes to the INA related to the custody and care of unaccompanied alien children. The
Senate bill would further specify that children who receive U status and are in the custody of
HHS are eligible for programs and services to the same extent as refugees. S. 1301 would also
create a new grant program to provide services to child victims of sex trafficking.
Immigrant Investors
There is currently one immigrant visa category specifically for foreign investors (LPR investors)
coming to the United States. LPR investors comprise the fifth preference category under the
employment-based immigration system in the INA, and this immigrant visa is commonly referred
to as the EB-5 visa.94 The basic purpose of the LPR investor visa is to benefit the U.S. economy,
primarily through employment creation and an influx of foreign capital into the United States.
Employment-based LPR investor visas are designated for individuals wishing to develop a new
commercial enterprise in the United States. The INA stipulates that for the investor to qualify for
the EB-5 visa, the enterprise must employ at least 10 people, the investor must invest $1 million
into the enterprise, and the business and jobs created must be maintained for a minimum of
two years.95
In 1992, a pilot program was authorized under the EB-5 visa category to achieve the economic
activity and job creation goals of that category by encouraging investment in economic units
known as Regional Centers.96 The Regional Center Pilot Program is intended to provide a
coordinated focus for foreign investment toward specific geographic regions. The majority of EB5 immigrant investors come through the pilot program. The Regional Center Pilot Program was
set to expire on September 30, 2012,97 but Congress passed P.L. 112-176, reauthorizing the
program through September 30, 2015. In addition, there are bills in the 112th Congress that would
amend the requirements for EB-5 visas98 or create a new, sixth employment-based preference
(EB-6) for sponsored alien entrepreneurs.99
94
For a discussion of employment-based immigration and the preference categories, see CRS Report RL32235, U.S.
Immigration Policy on Permanent Admissions.
95
INA §203(b)(5), §216A.
96
P.L. 102-395, Title VI, §610, October 6, 1992. A Regional Center is defined as any economic unit, public or private,
engaged in the promotion of economic growth, improved regional productivity, job creation, and increased domestic
capital investment.
97
P.L. 108-156 extended the program through FY2008, and §548 of P.L. 111-83 extended the authorization through
September 30, 2012.
98
See, for example, Immigration Driving Entrepreneurship in America Act of 2011 (H.R. 2161).
99
See, for example, StartUp Visa Act of 2011 (H.R. 1114/S. 565).
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Special Immigrant Program for Religious Workers
Special immigrants comprise the fourth preference category under the employment-based
immigration system in the INA.100 Over the years, the special immigrant category has been used
to confer immigration benefits on particular groups and there are various subcategories of special
immigrants under current law. Ministers of religion and religious workers make up the largest
number of special immigrants. Religious work is currently defined as habitual employment in an
occupation that is primarily related to a traditional religious function and that is recognized as a
religious occupation within the denomination. While the INA provision for the admission of
ministers of religion is permanent, the provision admitting religious workers has always had a
sunset date. P.L. 112-176 extends the authorization for the special immigrant religious worker
program for three years, until September 30, 2015.
Tourist Visas
There is interest in Congress in promoting international tourism to the United States.101 P.L. 11274 contains provisions intended to help increase tourism. Section 7076 of the act requires the
Secretary of State to “implement the necessary steps” (e.g., hiring more consular officers) to
reduce the wait time to interview visa applicants in China, Brazil, and India.102 The provision also
gives the Secretary of State the authority to develop and conduct a pilot program for processing B
visas (i.e., short-term visas for business or leisure) using videoconferencing technology to
conduct interviews of the applicants.103 The act further requires the Secretary of State to conduct a
risk and benefit analysis regarding the extension of the expiration period for a B visa, before
requiring an interview. Under current law, an in-person interview by a consular officer is required
for visa applicants age 14 through 79 years, with few exceptions. An interview may be waived if
the alien is applying for a new visa within 12 months of the old visa’s expiration and certain other
conditions are met.104
In addition, there have been two hearings related to promoting tourism to the United States. In
March 2012, the Senate Judiciary Committee’s Subcommittee on Immigration, Refugees and
Border Security held a hearing on promoting international travel to the United States. During the
hearing, there were discussions of S. 2233, the Jobs Originated through Launching Travel (JOLT)
Act. Among other provisions, the Jolt Act would allow premium processing105 for B visas and
100
For a discussion of employment-based immigration and the preference categories, see CRS Report RL32235, U.S.
Immigration Policy on Permanent Admissions.
101
See, for example, H.R. 3341.
102
In FY2010, these three countries accounted for 27% of all visas issued worldwide. CRS analysis of data from,
Office of Immigration Statistics, Yearbook of Immigration Statistics: FY2010, Department of Homeland Security,
Washington, DC, August 2011, http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/ois_yb_2010.pdf.
103
In P.L. 108-458 (§5301), Congress established detailed requirements for interviews for nonimmigrant visas. (These
are codified in INA §222(h)). On January 19, 2012, President Obama signed an Executive Order and announced new
initiatives aimed to increase tourism to the United States. See The White House, “We Can’t Wait: President Obama
Takes Actions to Increase Travel and Tourism in the United States,” press release, January 19, 2012,
http://www.whitehouse.gov/the-press-office/2012/01/19/we-can-t-wait-president-obama-takes-actions-increase-traveland-tourism-.
104
INA §222(h).
105
Premium processing, which is legislatively mandated, allows aliens to pay an additional fee to have their visa
application processed more quickly. Currently, premium processing is offered by USCIS for employment-based visa
petitions.
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lower the fees charged in select countries during periods of low demand for B visas. As with other
bills introduced in this Congress,106 S. 2233 would also make changes to admissions criteria for
the Visa Waiver Program.107
In May 2012, the House Judiciary Committee, Subcommittee on Immigration Policy and
Enforcement held a hearing on H.R. 3039, the Welcoming Business Travelers and Tourist to
America Act of 2011. H.R. 3039 would direct the Secretary of State to: (1) set a visa processing
standard of 12 or fewer calendar days at U.S. missions in China, Brazil, and India; and (2) use
machine-readable nonimmigrant visa fees to hire a sufficient number of Foreign Service officers
and non-career appointment consular officers to maintain such standard. The bill would also
require that the Secretary of State conduct a pilot program for processing B visas using
videoconferencing technology to conduct interviews of the applicants, and work with other
federal agencies to ensure the security of the videoconferencing transmissions. H.R. 3039 would
also authorize the Secretary of State to allow for longer visa validity periods for certain countries
on a non-reciprocal basis.
Foreign Temporary Agricultural Workers
Under current law, there is one program that provides for the admission of foreign temporary
agricultural workers to the United States: the H-2A nonimmigrant visa program. This program
allows for the temporary admission of foreign workers to the United States to perform
agricultural labor or services of a seasonal or temporary nature, provided that U.S. workers are
not available. An approved H-2A visa petition is generally valid for an initial period of up to one
year. An employer can apply to extend an H-2A worker’s stay in increments of up to one year, but
an alien’s total period of stay as an H-2A worker may not exceed three consecutive years. The H2A program, which is not subject to a numerical cap, is administered by the Employment and
Training Administration (ETA) of the Department of Labor (DOL) and USCIS of DHS. The
Obama Administration issued new final rules on the H-2A program in 2010.108
An employer who wants to import H-2A workers must first apply to DOL for a certification that
(1) there are not sufficient U.S. workers who are qualified and available to perform the work; and
(2) the employment of foreign workers will not adversely affect the wages and working
conditions of U.S. workers who are similarly employed. Prospective H-2A employers must
attempt to recruit U.S. workers and must cooperate with DOL-funded state workforce agencies
(SWAs) in local, intrastate, and interstate recruitment efforts. In addition, under the “50 percent
rule,” H-2A employers are required to hire any qualified U.S. worker who applies for a position
until 50% of the work contract under which the H-2A workers are employed has elapsed. H-2A
employers must pay their H-2A workers and similarly employed U.S. workers the highest of
several wage rates (including the adverse effect wage rate) and must provide workers with
housing, transportation, and other benefits.109
106
See, for example, H.R. 3855 and S. 2046.
The Visa Waiver Program (VWP) allows nationals from certain countries to enter the United States for short-term
business or leisure without first obtaining a B visa. To be eligible for the VWP a country must meet certain
requirements including having a low nonimmigrant refusal rate. For more on the VWP, see CRS Report RL32221, Visa
Waiver Program, by (name redacted).
108
For a discussion of these DOL and DHS rules, see CRS Report R42434, Immigration of Temporary Lower-Skilled
Workers: Current Policy and Related Issues, by (name redacted).
109
See Ibid.
107
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The American Specialty Agriculture Act (H.R. 2847), which was the subject of a hearing by the
House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement in
September 2011, would establish a new H-2C visa for temporary agricultural workers as an
alternative to the H-2A visa. Unlike the H-2A visa, the H-2C visa would not be limited to
agricultural labor of a temporary or seasonal nature and could be used to bring in workers to
perform non-seasonal agricultural work. An H-2C worker’s continuous period of stay would be
limited to 10 months, and the program would be capped at 500,000 annually. The new program
would be administered by USDA and would not be subject to the same labor certification process
as the H-2A visa. Instead, prospective H-2C employers would attest in their applications that they
had satisfied applicable recruitment, wage, and benefit requirements, which would differ from
those under the H-2A visa. With respect to wages, the H-2C visa would not be subject to the
adverse effect wage rate; H-2C employers would be required to pay the higher of the prevailing
wage rate or the applicable minimum wage rate. Among other differences between the H-2A
program and the proposed H-2C program, the H-2C program would be subject to more limited
U.S. worker recruitment requirements; the H-2C program would not have a “50 percent rule;” and
H-2C employers could provide housing vouchers instead of housing. Other bills would establish
different new foreign agriculture worker programs or would amend the existing H-2A program.110
Unauthorized Students
Unauthorized alien students are a subpopulation of the larger unauthorized alien population in the
United States.111 They are able to receive free public education through high school despite their
illegal status, but face various obstacles in the pursuit of higher education. More broadly, as
unauthorized aliens they are typically unable to work legally and are subject to removal from the
United States.
Legislation commonly referred to as the “DREAM Act” (whether or not a particular bill carries
that name) has been introduced in the past several Congresses to provide unauthorized alien
students with access to both educational opportunities and immigration status.112 Typically,
DREAM Act bills propose to enable eligible individuals to obtain LPR status in the United States
through a two-stage process. In the first stage, aliens meeting specified criteria could go through
an immigration procedure known as “cancellation of removal” to obtain a conditional legal status.
In the second stage, aliens, after meeting additional requirements, could apply to become fullfledged LPRs. DREAM Act bills also often contain a repeal of a provision of current law (§505 of
the Illegal Immigration Reform and Immigrant Responsibility Act) that restricts the ability of
states to provide postsecondary educational benefits to unauthorized aliens. Attempts to enact a
DREAM Act bill in the 110th and 111th Congresses were unsuccessful.
DREAM Act bills have once again been introduced in the 112th Congress, both as stand-alone
measures and as parts of larger bills.113 In a related development, DHS issued a memorandum in
June 2012114 stating that certain individuals who were brought to the United States as children
110
See, for example, Legal Agricultural Workforce Act (H.R. 2895) and HARVEST Act of 2011 (S. 1384).
For information and analysis of the unauthorized alien population generally, see CRS Report R41207, Unauthorized
Aliens in the United States, by (name redacted).
112
See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by (name redacted).
113
See, for example, H.R. 1842, S. 952, and S. 1258 (Title I, Subtitle A, Part IV). For a discussion of these and other
bills introduced in the 112th Congress, also see Ibid.
114
U.S. Department of Homeland Security, Memorandum to David V. Aguilar, Acting Commissioner, U.S. Customs
(continued...)
111
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and meet other criteria would be considered for relief from removal in the form of deferred
action.115 The eligibility criteria are similar to those included in DREAM Act bills. This deferred
action process, however, would not grant eligible individuals a legal immigration status. USCIS
began accepting requests for consideration of deferred action for childhood arrivals (DACA) in
August 2012.
Birthright Citizenship
Over the past decade or so, concern about illegal immigration has led some legislators to
reexamine the long-established tenet of U.S. citizenship that a person, who is born in the United
States, and subject to its jurisdiction, is a citizen of the United States regardless of the race,
ethnicity, or alienage of the parents. This concept of birthright citizenship is codified in the
Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the
INA. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in
Afghanistan fighting with Taliban forces, further heightened attention to and interest in restricting
automatic birthright citizenship. Although Hamdi’s parents were Saudi nationals in the United
States on nonimmigrant work visas, Hamdi was a U.S. citizen by right of his birth in Louisiana
and arguably entitled to rights not available to foreign enemy combatants.
In the 112th Congress, some Members have supported introducing legislation that would revise or
reinterpret the Citizenship Clause to address concerns that (1) children born to unauthorized
aliens become an avenue to legal status for their parents and siblings when they turn 21 years old,
and (2) affluent pregnant foreigners come to the United States on tourist visas to give birth to
their children and thus provide them with U.S. citizenship.116 Several bills have been introduced
to amend the Constitution and/or the INA to exclude persons born in the United States from
citizenship at birth if their parents were unlawfully present in the United States or were
nonimmigrant aliens.117 In order for a child to be a citizen at birth under these proposals, at least
one parent would have to be a U.S. national, an LPR who resides in the United States, or an alien
serving on active duty in the U.S. Armed Forces.
(...continued)
and Border Protection, Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, John Morton,
Director, U.S. Immigration and Customs Enforcement, from Janet Napolitano, Secretary of Homeland Security,
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15,
2012, http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-aschildren.pdf. Also see CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation.
115
Deferred action is “a discretionary determination to defer removal action of an individual as an act of prosecutorial
discretion.” U.S. Department of Homeland Security, “Secretary Napolitano Announces Deferred Action Process for
Young People Who Are Low Enforcement Priorities,” http://www.dhs.gov/files/enforcement/deferred-action-processfor-young-people-who-are-low-enforcement-priorities.shtm. For additional information on prosecutorial discretion and
deferred action, see Testimony of (name redacted), Congressional Research Service, at U.S. Congress, House
Committee on Homeland Security, Subcommittee on Border and Maritime Security, Does Administrative Amnesty
Harm our Efforts to Gain and Maintain Operational Control of the Border?, hearing, 112th Congress, 1st sess., October
4, 2011, http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Wasem.pdf.
116
See, for example, Daniel González, “Births by U.S. visitors: A real issue? Data indicate ‘birth tourism’ is not a
widespread practice,” The Arizona Republic, August 17, 2011, http://www.azcentral.com/news/articles/2011/08/17/
20110817births-by-us-visitors-smaller-issue.html.
117
See, for example, H.R. 140, §301 of H.R. 1196, S. 723, and S.J.Res. 2. For further information, see CRS Report
RL33079, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, by
(name redacted).
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Immigration Legislation and Issues in the 112th Congress
Furthermore, some state legislators have voiced support for state legislation that would define
state citizenship as excluding persons born to undocumented aliens and for a state compact under
which states would issue a different type of birth certificate to such persons. State legislators from
Arizona and 13 other states unveiled model legislation in January 2011, intending to set the stage
for a U.S. Supreme Court review of the Citizenship Clause.118 Such legislation has been
introduced in some states but has not been enacted.119
Commonwealth of the Northern Mariana Islands
Title VII of P.L. 110-229 made the INA applicable to the Commonwealth of the Northern Mariana
Islands (CNMI), a U.S. territory in the Pacific. Previously, in accordance with an agreement
known as the Covenant120 that sets forth the relationship between the CNMI and the United
States, the CNMI had not been subject to U.S. immigration law. Among other provisions, P.L.
110-229 established a transition period for implementing the INA in the CNMI that began on
November 28, 2009. It aimed, in particular, to provide federal regulation and oversight of the
admission of foreign workers to the CNMI, including by establishing a CNMI-only transitional
worker visa. Aliens who were not eligible for the transitional foreign worker visas were able to
remain in the CNMI on entry permits issued under the former territorial immigration laws until
the earlier of the original permit expiration date or November 28, 2011.121
In the 112th Congress, H.R. 1466 would resolve the status of certain long-term foreign residents
of the CNMI who otherwise may not be able to remain in the territory after November 28, 2011.
The bill was reported by the House Natural Resources Committee, while the House Judiciary
Committee discharged it without a report. Some long-term foreign residents of the CNMI have
U.S. citizen spouses and children who, for various reasons, are unable to sponsor them for U.S.
immigrant status. For example, some have U.S. citizen spouses and adult sons or daughters who
are eligible to file a family-based immigrant petition on their behalf; however, due to the
economic conditions in the CNMI, many citizens apparently are unable to satisfy the requisite
household income level for sponsoring a relative as an immigrant under U.S. law. Other longterm foreign residents were granted permanent resident status in the CNMI under former
territorial immigration laws, but this status will no longer be valid under federal immigration law
after November 28, 2011. Still other persons who were born in the CNMI were not eligible for
U.S. citizenship under the terms of the Covenant. As reported, H.R. 1466 would authorize
admission of these various long-term foreign residents, subject to certain requirements, as
118
State Rep. Daryl Metcalfe, State Legislators for Legal Immigration, “State Lawmakers Convened in D.C. to Deliver
Historic, Nationwide Correction of 14th Amendment Misapplication,” January 5, 2011,
http://www.statelegislatorsforlegalimmigration.com/NewsItem.aspx?NewsID=10195; Associated Press, “Lawmakers in
14 States Craft Bill to Deny Citizenship to ‘Anchor Babies’,” October 19, 2010, listed the 13 other states as Alabama,
Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, Pennsylvania,
Texas, and Utah, http://www.foxnews.com/politics/2010/10/19/lawmakers-states-craft-deny-citizenship-anchor-babies/
?test=latestnews. Some legal scholars think it is unlikely the Supreme Court will hear such a case. Valeria Fernández,
“Birthright Citizenship’s Unlikely Road to Supreme Court,” New America Media, December 22, 2010,
http://newamericamedia.org/2010/12/birthright-citizenships-unlikely-road-to-supreme-court.php.
119
For example, Arizona S.B. 1308, 50th Leg., 1st Reg. Sess., failed to pass in the State Senate on March 17, 2011.
120
The Covenant To Establish a Commonwealth of the Northern Mariana Islands In Political Union with the United
States of America, codified at 48 U.S.C. §1801 note.
121
The CNMI had issued so-called “umbrella permits,” valid through November 28, 2011, to most persons who had a
valid permit expiring earlier.
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Immigration Legislation and Issues in the 112th Congress
immigrants to the CNMI only, and provide a path for most of these CNMI-only residents to adjust
later to regular LPR status.
On November 23, 2011, USCIS announced that certain prospective beneficiaries of H.R. 1466,
namely immediate relatives of U.S. citizens and certain persons born in the CNMI who did not
receive U.S. citizenship (also their spouses and unmarried children under 21 years old), would be
eligible for parole. Parole would be granted on a case-by-case, discretionary basis and would
permit recipients to stay lawfully in the CNMI.122 On December 9, 2011, USCIS issued guidelines
clarifying that a grant of parole based on an application filed on or before January 31, 2012,
would be backdated to November 27, 2011. If parole is denied, unlawful presence would accrue
after the expiration of the CNMI permit on November 27, 2011. A grant of parole based on an
application filed after January 31, 2012, would be valid from the date of grant, so unlawful
presence would accrue after the expiration of the CNMI permit on November 27, 2011, until the
date for the grant of parole. The maximum grant would be until December 31, 2012. In the
meantime, discussions about H.R. 1466 continue, with some critics seeking to remove or limit the
fourth group of beneficiaries in the current bill (foreign parents of minor U.S. citizen children)
and some supporters pushing to extend the benefits of H.R. 1466 to other groups of long-term
foreign workers.123
Professional Foreign Temporary Employees
The 112th Congress is taking renewed interest in foreign temporary workers engaged in
professional occupations. As discussed above, one issue focuses on whether Congress should
revise the immigration law to expand temporary visas for professional specialty occupations,
particularly for graduates with degrees in STEM fields. Another issue is whether other temporary
visa categories, such as those designated for foreign study, cultural exchange, and intracompany
transfers, are being misused by employers unable to obtain numerically limited professional
workers visas. A corollary to these two issues is whether the wages and working conditions of
U.S. workers are adversely affected by the recruitment of temporary foreign workers.124
122
Parole is a form of immigration relief that does not constitute formal admission into the United States but permits an
alien to come to and/or stay in the United States temporarily for humanitarian or public interest reasons. See USCIS
guidelines for parole benefitting immediate relatives of U.S. citizens in the CNMI and certain “stateless” persons born
in the CNMI, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=
2ae38614e90d3310VgnVCM100000082ca60aRCRD&vgnextchannel=
4d3314dd2b635210VgnVCM100000082ca60aRCRD.
123
Haidee V. Eugenio, “Senate asks changes to Kilili’s HR 1466 for IRs of US citizens,” Saipan Tribune, August 2,
2012, http://www.saipantribune.com/newsstory.aspx?newsID=120866; Haidee V. Eugenio, “Besides removal of
‘fourth group’ HR 1466 may have other changes,” Saipan Tribune, June 8, 2012, http://www.saipantribune.com/
newsstory.aspx?cat=1&newsID=119505; Haidee V. Eugenio, “‘4th group’ may be removed from HR 1466,” Saipan
Tribune, June 7, 2012, http://www.saipantribune.com/newsstory.aspx?cat=1&newsID=119491.
124
For related information, see CRS Report CRS Report RL33977, Immigration of Foreign Workers: Labor Market
Tests and Protections, by (name redacted).
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Immigration Legislation and Issues in the 112th Congress
Other Legislation Receiving Action
Military Service-Based Immigration Benefits
Since 2003, Congress has enacted a range of measures to facilitate naturalization and
maintenance of LPR status for military service members and their families, particularly when
such persons are posted abroad. In the 112th Congress, several bills have been introduced to
address additional issues that have resulted from military service. One of these bills (H.R. 398)
has been enacted as P.L. 112-58. The new law extends the time to qualify for non-conditional
LPR status to account for military service.
Under the INA, an alien who obtains LPR status through a marriage to a U.S. citizen or LPR that
was entered into less than two years earlier is initially granted LPR status on a conditional basis.
In order to have the condition removed, both spouses must jointly satisfy certain requirements
during specified periods, including appearing together at a personal interview with DHS. P.L.
112-58 tolls the time for meeting such requirements during any period in which either spouse is a
member of the U.S. Armed Forces and serving abroad in active-duty status. Although DHS had
discretion to waive the requirements in certain circumstances before the new law, it obviates the
need for discretionary waivers by tolling the time periods.
In addition, the enactment of P.L. 112-74 added a new statute, 10 U.S.C. §1790, providing for
reimbursement to USCIS by the Department of Defense of fees for processing military-servicebased naturalization applications (Div. A, §8070). Current law prohibits charging the applicants
fees for such applications.125
E-2 Visas for Israeli Nationals
While LPR investors enter the United States on EB-5 visas, as discussed above, the INA also
provides for the admission of temporary investors. There are two classes of nonimmigrant visas
for investors: the E-1 visa for treaty traders and the E-2 visa for treaty investors.126 An E-1 treaty
trader visa allows a foreign national to enter the United States for the purpose of conducting
“substantial trade” between the United States and the individual’s country of citizenship.127 An E2 treaty investor can be any person who comes to the United States to develop and direct the
125
INA §329(b)(4), regarding military-service-based naturalization during periods of hostilities, codified as amended at
8 U.S.C. §1440(b)(4):
[N]otwithstanding any other provision of law, no fee shall be charged or collected from the
applicant for filing a petition for naturalization or for the issuance of a certificate of naturalization
upon citizenship being granted to the applicant, and no clerk of any State court shall charge or
collect any fee for such services unless the laws of the State require such charge to be made, in
which case nothing more than the portion of the fee required to be paid to the State shall be charged
or collected.
See also INA §328(b)(4), regarding military-service-based naturalization during peacetime, codified as
amended at 8 U.S.C. §1439(b)(4), and 8 U.S.C. §1440e (not part of the INA), regarding prohibition on fees
charged by a federal court for military-service-based naturalization during the Vietnam and subsequent
hostilities.
126
For more information on these visa categories, see CRS Report RL33844, Foreign Investor Visas: Policies and
Issues, by (name redacted) and (name redacted).
127
INA §101(a)(15)(E)(i).
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Immigration Legislation and Issues in the 112th Congress
operations of an enterprise in which he or she has invested, or is in the process of investing, a
“substantial amount of capital.”128
P.L. 112-130 makes Israeli nationals eligible for E-2 status if Israel offers a similar status to U.S.
citizens and nationals. Israelis have been eligible to enter under the E-1 visa category since 1954.
The 1954 treaty allowed E-1 status but did not grant E-2 status.
Student Visas
The most common nonimmigrant visa for foreign students is the F visa. This visa is for
international students pursuing an education at an “established college, university, seminary,
conservatory, academic high school, elementary school, or other academic institution or in an
accredited language training program.”129 H.R. 3120, as passed by the House, would require a
college or university to be accredited by an accrediting agency recognized by the Secretary of
Education in order to accept foreign students (i.e., students on F visas). Under certain
circumstances, the Secretary of Homeland Security would be able to waive the accreditation
requirement. In addition, H.R. 3120 would allow the Secretary of Homeland Security to require
that other institutions (except seminaries and other religious institutions) be accredited if (1) there
is an accrediting agency recognized by the Secretary of Education that can provide such
accreditation; and (2) the institution has or will have 25 or more foreign students on F visas.
Furthermore, the bill would prohibit persons convicted of certain offenses—such as alien
smuggling, visa fraud, and human trafficking—from being involved in a position of ownership,
authority, or management with an institution allowed to accept F students.
Visa Waiver Program
The visa waiver program (VWP) allows nationals from certain countries to enter the United
States as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a
visa from a U.S. consulate abroad. 130 Temporary visitors for business or pleasure from non-VWP
countries must obtain a visa from DOS officers at a consular post abroad before coming to the
United States. The INA specifies the criteria that a country must meet to be designated as a VWP
country, including offering reciprocal privileges to U.S. citizens; having had a nonimmigrant
refusal rate131 of less than 3% for the previous year; and not compromising the law enforcement
or security interests of the United States by its inclusion in the program. Countries can be
terminated from the VWP if an emergency occurs that threatens U.S. security interests
S. 3216, as reported by the Senate Appropriations Committee, would allow the Secretary of DHS
to use visa overstay rates132 instead of nonimmigrant visa refusal rates to determine which
128
INA §101(a)(15)(E)(ii).
INA §101(a)(15)(F).
130
As of August 2012, there were 36 countries participating in the VWP. In addition, another country, Taiwan, has
been nominated to be part of the program. For more on the VWP, see CRS Report RL32221, Visa Waiver Program, by
(name redacted).
131
A refusal rate is the number of citizens who applied for a B visa (tourist visa) from the country, were denied, and
were unable or unwilling to provide sufficient evidence to have the denial reversed, divided by the total number of such
citizens who applied for a B visa, in a specific year.
132
An overstay rate is the number of citizens from a country who overstayed the terms of admittance of their visa,
divided by the total number of citizens from the country who were admitted to the United States under a B visa, in a
(continued...)
129
Congressional Research Service
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Immigration Legislation and Issues in the 112th Congress
countries to admit to the VWP. Countries could be eligible for the VWP if their refusal rate or
overstay rate was less than 3% in the previous fiscal year. S. 3216 would also allow the Secretary
of DHS to waive the refusal or overstay rate requirement if certain conditions are met, such as
meeting all the security requirements of the program and cooperating with the United States on
counterterrorism initiatives and information sharing. The bill would also create a probationary
period and procedures for terminating a country’s participation in the VWP if that country failed
to comply with any of the program’s requirements.
Waivers for Foreign Medical Graduates
Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in
order to receive graduate medical education and training. Such FMGs must return to their home
countries after completing their education or training for at least two years before they can apply
for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of the
foreign residency requirement. States are able to request waivers on behalf of FMGs under a
temporary program, known as the Conrad State Program or the Conrad 30 Program. Established
by a 1994 law, this program initially applied to aliens who acquired J status before June 1, 1996.
The Conrad State Program has been extended several times, most recently by P.L. 112-176, which
makes the program applicable to aliens who acquire J status before September 30, 2015.
Wage Requirements for H-2B Temporary Employment
The H-2B visa allows for the temporary admission of foreign workers to the United States to
perform temporary nonagricultural labor or service if unemployed U.S. workers cannot be found.
H-2B employers are required to pay workers the highest of the prevailing wage rate or the
federal, state, or local minimum wage. In January 2011, DOL issued a final rule to change the
methodology for determining prevailing wage rates for the H-2B program.133 This rule has not yet
gone into effect. Congress has blocked its implementation through a series of enactments. P.L.
112-55 (Div. B, §546) prohibited any funds made available by the act or another act for FY2012
to be used to implement or enforce the H-2B wage rule before January 1, 2012, and P.L. 112-74
prohibited any funds made available under the act to be used to implement the rule for the
remainder of FY2012 (Div. F, §110). Currently, the Continuing Appropriations Resolution, 2013
(P.L. 112-175) prohibits DOL from using funds to implement the new wage methodology until
March 27, 2013. In response, DOL announced that it was postponing the effective date of the new
wage methodology until March 27, 2013.
(...continued)
specific year.
133
U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary NonAgricultural Employment H-2B Program,” 76 Federal Register 3452-3484, January 19, 2011.
Congressional Research Service
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Immigration Legislation and Issues in the 112th Congress
Author Contact Information
(name redacted), Coordinator
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(name redacted)
Information Research Specialist
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Analyst in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
Congressional Research Service
32
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