Comprehensive Immigration Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744

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Comprehensive Immigration Reform

in the 113th Congress:

Major Provisions in Senate-Passed S. 744

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July 9, 2013

Congressional Research Service

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R43097

CRS Report for Congress

Prepared for Members and Committees of Congress

Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Summary

For several years, some Members of Congress have favored “comprehensive immigration

reform” (CIR), a label that commonly refers to omnibus legislation that includes increased border

security and immigration enforcement, expanded employment eligibility verification, revision of

nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized

aliens residing in the country. The omnibus legislative approach contrasts with incremental

revisions of the Immigration and Nationality Act (INA) that would address some but not all of

these elements, and with sequential reforms that would tackle border security and interior

enforcement provisions prior to revising legal immigration or enacting legalization pathways.

Leaders in both chambers have identified immigration as a legislative priority in the 113th

Congress. While the House Committee on the Judiciary has ordered reported several distinct

pieces of legislation that aim to reform immigration law thus far in the 113th Congress, the debate

in the Senate has focused on a single CIR bill: the Border Security, Economic Opportunity, and

Immigration Modernization Act (S. 744). This report summarizes major provisions of S. 744,

which the Senate amended and passed by a yea-nay vote of 68-32 on June 27, 2013.

CRS’s analysis of S. 744 focuses on eight major policy areas that encompass the U.S.

immigration debate: comprehensive reform “triggers” and funding; border security; interior

enforcement; employment eligibility verification and worksite enforcement; legalization of

unauthorized aliens; immigrant visas; nonimmigrant visas; and humanitarian provisions.

Among the border and enforcement-related provisions in Senate-passed S. 744 are a number of

provisions aimed at strengthening border security, including increased border security personnel,

equipment, and infrastructure. The bill would mandate new border security strategies and the

development of new border metrics that would be designed to achieve “effective control” of the

Southern border. Most notably, S. 744 would authorize $44.5 billion in spending for additional

border patrol agents, border fencing, and an electronic exit system to collect machine readable

data at air and sea ports of entry.

The legislation would also authorize $750 million for the U.S. Department of Homeland Security

(DHS) to implement a mandatory electronic employment verification system to be used by all

employers. Furthermore, S. 744 would amend the INA to create additional grounds of

inadmissibility and deportability, while broadening judges’ discretion to waive some of these

grounds. For certain immigration offenses, the bill would increase civil and misdemeanor

penalties for first-time offenses and impose felony penalties when aggravating circumstances

exist. The bill would amend INA provisions on unlawful reentry to increase criminal penalties. S.

744 would provide additional resources to immigration courts and would encourage alternatives

to detention and strengthen detention standards and congressional oversight of immigrant

detention. Special provisions would be included to protect children who are affected by

immigration enforcement.

In turn, S. 744 would amend the INA to provide pathways for unauthorized aliens to adjust their

immigration status to one of the proposed new statuses—“registered provisional immigrant”

(RPI) status and “blue card” status—and ultimately legal permanent resident (LPR) status after

specified border security and interior enforcement criteria are met. In addition to these

legalization provisions, S. 744 would also accelerate the admission of an estimated 4 to 7 million

foreign nationals who have pending petitions to become LPRs. S. 744 would substantially revise

Congressional Research Service

Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

the categories for the admission of LPRs, eliminating the category for siblings of U.S. citizens,

shifting the allocation of the other family-based categories, permitting more categories of LPRs to

enter without numerical limits, and increasing the number of employment-based LPRs. The

Congressional Budget Office (CBO) projects that the changes to the legal immigration system

would result in an increase of 9.6 million LPRs in the first decade after enactment.

Senate-passed S. 744 would revise and expand nonimmigrant (i.e., temporary immigration)

programs for high- and low-skilled workers, as well as for tourists, students, and other

nonimmigrants. The bill would increase the cap on professional specialty workers (H-1B

workers), while also imposing new requirements on businesses that employ H-1B workers, as

well as those that employ intra-company transferees (L visas). Reforms would be made to the

existing H-2B visa for lower-skilled non-agricultural workers in temporary or seasonal

employment, while the H-2A visa for agricultural workers would be phased out. New

nonimmigrant visas (the proposed W visas) would be established for lower-skilled agricultural

and non-agricultural workers that would be more flexible for employers, while also expanding

certain rights for workers. Additional nonimmigrant visa changes would facilitate temporary

immigration by doctors, investors, and aliens from certain countries with U.S. trade agreements;

encourage tourism within the United States; and strengthen oversight of foreign students and

summer-work study exchanges, among other changes.

An accompanying report, CRS Report R43099, Comprehensive Immigration Reform in the 113th

Congress: Short Summary of Major Legislative Proposals, offers an overview of S. 744 as well.

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Contents

Introduction...................................................................................................................................... 1

Comprehensive Reform “Triggers” and Funding ............................................................................ 2

Triggers for Legalization and Adjustment to LPR Status .......................................................... 2

Comprehensive Immigration Reform Funds ............................................................................. 4

Border Security ................................................................................................................................ 6

Border Security Strategies and Metrics ..................................................................................... 6

Border Security Personnel, Equipment, and Infrastructure ....................................................... 8

DHS Waiver Authority and Access to Federal Lands ................................................................ 8

Immigration-Related Crimes ..................................................................................................... 9

Oversight of Border Security Activities .................................................................................. 11

Entry-Exit System ................................................................................................................... 11

Interior Enforcement ...................................................................................................................... 13

Immigration Courts ................................................................................................................. 13

Grounds of Inadmissibility, Deportability, and Relief from Removal ..................................... 15

Immigrant Detention ............................................................................................................... 16

Protection of Children during Immigration Enforcement ....................................................... 17

Additional Interior Enforcement Provisions............................................................................ 18

Employment Eligibility Verification and Worksite Enforcement .................................................. 19

Document Verification Requirements and Document Integrity .............................................. 20

Electronic Eligibility Verification System ............................................................................... 20

Employer Protections .............................................................................................................. 21

Worker Protections .................................................................................................................. 22

Legalization of Unauthorized Aliens ............................................................................................. 24

Registered Provisional Immigrants (RPIs) .............................................................................. 24

RPI Adjustment of Status to Lawful Permanent Residence .............................................. 26

DREAM Act ............................................................................................................................ 27

Agricultural Worker Legalization ............................................................................................ 29

Adjustment of Status to Lawful Permanent Residence ..................................................... 30

Immigrant Visas ............................................................................................................................. 31

Point Merit-Based Systems ..................................................................................................... 32

Merit-Based Track One ..................................................................................................... 32

Merit-Based Track Two ..................................................................................................... 32

Family-Based Immigration ...................................................................................................... 33

Employment-Based Immigration ............................................................................................ 34

Investor Visas .......................................................................................................................... 35

Changes to the EB-5 Category .......................................................................................... 35

New EB-6 Investor Visas .................................................................................................. 36

Immigrant Integration .............................................................................................................. 37

Citizenship of Adopted Children ....................................................................................... 37

Naturalization Based on Military Service ......................................................................... 38

Nonimmigrant Visas ...................................................................................................................... 38

High-Skilled Workers .............................................................................................................. 39

H-1B Professional Specialty Workers ............................................................................... 39

L Visa Intra-Company Transferees .................................................................................... 41

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Other Skilled and Professional Worker Visas.................................................................... 42

Lower-Skilled Workers ............................................................................................................ 45

Reforms to the H-2B Program .......................................................................................... 45

New Requirements for J Summer Work/Travel ................................................................ 46

New Nonimmigrant Visas for Lower-Skilled Workers ..................................................... 46

Foreign Labor Contractors ................................................................................................ 49

Tourism-Related Provisions .................................................................................................... 50

New Y Visa for Retirees .................................................................................................... 51

Visa Waiver Program......................................................................................................... 51

Other Nonimmigrant Visa Changes ......................................................................................... 52

Student Visas ..................................................................................................................... 52

Humanitarian Provisions................................................................................................................ 53

Refugee and Asylum Provisions .............................................................................................. 53

Anti-Trafficking Provisions ..................................................................................................... 55

Status for Certain Battered Spouses and Children ................................................................... 56

Access to Federal Public Benefits ................................................................................................. 56

Eligibility Rules for LPRs, Asylees, and Refugees ................................................................. 56

Treatment of Aliens with Newly Created Statuses .................................................................. 57

Restricted Eligibility of Certain Nonimmigrants for Health Benefits ..................................... 58

Congressional Budget Office Analysis of S. 744........................................................................... 58

Contacts

Author Contact Information........................................................................................................... 59

Acknowledgment ........................................................................................................................... 59

Key Policy Staff ............................................................................................................................. 59

Congressional Research Service

Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Introduction

For several years, some Members of Congress have favored “comprehensive immigration

reform” (CIR), a label that commonly refers to omnibus legislation that includes increased border

security and immigration enforcement, expanded employment eligibility verification, revision of

nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized

aliens residing in the country.1 Other Members of Congress may favor addressing these issues

sequentially (e.g., by implementing enforcement provisions and perhaps reforming legal

immigration prior to legalization), and/or may disagree with the legalization and increased legal

immigration provisions that have been features of major CIR bills. Still others may be interested

in legislating on some elements of CIR but not others.2

Leaders in both chambers have identified immigration as a legislative priority in the 113th

Congress. While the House Committee on the Judiciary has ordered reported several distinct

pieces of legislation that aim to reform immigration law thus far in the 113th Congress, the debate

in the Senate has focused on a single CIR bill: the Border Security, Economic Opportunity, and

Immigration Modernization Act (S. 744). As introduced on April 16, 2013, S. 744 was the

product of months of negotiations among four Democratic and four Republican Senators—the

bill’s original co-sponsors—a group widely described as the “Gang of 8.”3

The Senate Judiciary held three days of hearings on S. 744 in April 2013 and then marked up the

bill over five days in May, favorably ordering the bill reported by a vote of 13-5 on May 21,

2013. The Senate Judiciary Committee filed its written report on S. 744 on June 7.4 The Senate

passed the motion to invoke cloture on S. 744 on June 11, 2013, by a yea-nay vote of 82-15. The

full Senate debated S. 744 for several weeks in June and considered about two dozen amendments

on the floor. Some amendments were folded into other amendments, the most significant of these

being the Hoeven-Corker-Leahy amendment on border security (S.Amdt. 1183), which the Senate

approved by a yea-nay vote of 69-29. On June 27, 2013, the Senate passed S. 744, as amended,

by a yea-nay vote of 68-32.

This report summarizes major provisions of S. 744, as reported by the Senate Judiciary

Committee and as modified and passed on the Senate floor. CRS’s analysis focuses on eight

major policy areas that encompass the U.S. immigration debate: comprehensive reform “triggers”

and funding; border security; interior enforcement; employment eligibility verification and

worksite enforcement; legalization of unauthorized aliens; immigrant visas; nonimmigrant visas;

and humanitarian provisions.

Previous bills include the Comprehensive Immigration Reform Act of 2006 (S. 2611 as passed by the Senate in 109th

Congress), and the Comprehensive Immigration Reform Act of 2007 (S. 1639 as considered by the Senate in 110th

Congress). For a fuller discussion see CRS Report R42980, Brief History of Comprehensive Immigration Reform

Efforts in the 109th and 110th Congresses to Inform Policy Discussions in the 113th Congress, by (name redacted).

For example, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437 as passed

by the House in 109th Congress) was an omnibus immigration enforcement bill that did not include legalization

provisions or changes to the legal immigration system. See Ibid.

Members included Senator Michael Bennet (D-CO), Senator Richard Durbin (D-IL), Senator Jeff Flake (R-AZ),

Senator Lindsey Graham (R-SC), Senator John McCain (R-AZ), Senator Robert Menendez (D-NJ), Senator Marco

Rubio (R-FL), and Senator Charles Schumer (D-NY).

U.S. Congress, Senate Committee on the Judiciary, Border Security, Economic Opportunity, and Immigration

Modernization Act, 113th Cong., 1st sess., June 7, 2013, S.Rept. 113-40.

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Comprehensive Reform “Triggers” and Funding5

Some Members of Congress have raised concerns about proposals for comprehensive

immigration reform on the grounds that the “bargain” some people see at the heart of such

reform—tougher enforcement on the one hand and legalization6 plus visa reforms on the other—

may be difficult to enforce. Some argue, for example, that while supporters of the 1986

Immigration Reform and Control Act (IRCA)7 promised that a one-time legalization, increased

border enforcement, and a prohibition against employing unauthorized workers would solve the

problem of illegal migration; some of IRCA’s immigration enforcement provisions were

incompletely implemented.8 Partly to allay these concerns, the first sections of S. 744 would

make implementation of certain enforcement provisions pre-conditions for the bill’s legalization

provisions;9 and S. 744 would directly appropriate funding for certain enforcement measures.

These “trigger” and funding provisions were subject to substantive changes on the Senate floor.

Triggers for Legalization and Adjustment to LPR Status

As reported by the Senate Judiciary Committee, Section 3 of S. 744 would establish two sets of

triggers for the bill’s legalization and adjustment of status10 provisions.11

•

First, the Department of Homeland Security (DHS) may only commence

processing applications for registered provisional immigrant (RPI) status (see

“Registered Provisional Immigrants (RPIs)”) after DHS notifies Congress that

the department has begun to implement a new Comprehensive Southern Border

Security Strategy (Comprehensive Security Strategy) and Southern Border

Fencing Strategy (Fencing Strategy) mandated by §5 of S. 744 (see “Border

Security Strategies and Metrics”).12 DHS would be required to begin

implementing the Comprehensive Security Strategy within 180 days after the

bill’s enactment.13 Based on the interplay between the triggers in §3 and other

provisions of the bill,14 it appears that aliens likely could begin applying for RPI

status within a year of the bill’s enactment.

CRS Legislative Attorney (name redacted) contributed to this section of the report.

“Legalization” typically refers to policies to enable unauthorized aliens to become legal permanent residents; see CRS

Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by (name redacted).

P.L. 99-603.

See for example, U.S. Congress, House Judiciary Committee, S. 744 and the Immigration Reform and Control Act of

1986: Lessons Learned or Mistakes Repeated?, 113th Cong., 1st sess., May 22, 2013.

Certain sections prior to Title I of the Border Security, Economic Opportunity, and Immigration Modernization Act

(S. 744) concern border security; these provisions are discussed in “Border Security” section of this report.

Adjustment of status is the process of becoming a legal permanent resident (LPR) while in the United States.

Title II of S. 744 includes additional requirements and timelines for legalization and adjustment of status

applications.

S. 744 §3(c)(1).

S. 744 §5(a)(1). The Department of Homeland Security (DHS) would be required to prepare both the Comprehensive

Security Strategy and the Fencing Strategy within 180 days of enactment of S. 744; but the bill only specifies an

implementation timeline (i.e., immediately after the strategy is submitted) for the Comprehensive Security Strategy.

See S. 744 §2101 (amending the INA to permit certain aliens to adjust to RPI status, but only allowing DHS to

accept such applications following the publication of a final rule in the Federal Register); §2110 (requiring

(continued...)

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

•

Second, as reported by the Senate Judiciary Committee, §3 generally provided

that DHS could not begin adjusting the status of persons from RPI to legal

permanent resident (LPR)15 until certain “triggers” are met. Specifically, the DHS

Secretary would have been required to certify that four benchmarks have been

reached: (1) the Comprehensive Southern Border Security Strategy has been

submitted and is “substantially deployed and substantially operational”; (2) the

Southern Border Fencing Strategy has been submitted and implemented and is

“substantially completed”; (3) DHS has implemented a mandatory employment

verification system to be used by all employers (see “Interior Enforcement”); and

(4) an electronic exit system to collect machine readable data is being used at air

and sea ports of entry (see “Entry-Exit System”).16

The bill as reported also described an exception to these trigger provisions. If 10 years have

elapsed since the bill’s enactment and these benchmarks have not been met due to litigation, a

Supreme Court ruling that implementation is unconstitutional, or a “force majeure,”17 the

Secretary shall permit RPIs to apply for LPR status.18 It is not clear, however, whether allowing

such applications under this condition means that DHS would be permitted to adjust applicants to

LPR status, or whether the previous sub-paragraph would prevent DHS from completing such

adjustments until the benchmarks are met.19

These triggers would not have applied to adjustment of status for certain aliens who entered the

United States as children (i.e., DREAMers) under Section 2103 of the bill or for aliens granted

agricultural “blue card” status under Section 2201 of the bill. The timeline for these groups to

adjust status is described in those two sections (see “DREAM Act” and “Agricultural Worker

Legalization”).

Notable Modifications during Senate Floor Debate

The Hoeven-Corker-Leahy Amendment modified the second set of S. 744 trigger provisions (i.e.,

the triggers for DHS to begin adjusting the status of persons from RPI to LPR status). The

amendment would continue to exempt DREAMers and aliens granted blue cards; and it would not

change language concerning the exception to the trigger requirement due to litigation, a Supreme

Court ruling, or force majeure. But the amendment generally would augment and expand the

main trigger requirements for DHS to begin adjusting RPIs to LPR status. In particular, DHS

could not begin such adjustments until six months after the DHS Secretary, after consultation

(...continued)

promulgation and publication of interim final regulations to implement adjustment provisions within one year of bill’s

enactment).

Legal permanent residents (LPRs) are foreign nationals who come to live lawfully and permanently in the United

States; see CRS Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by

(name redacted); and CRS Report R42866,Permanent Legal Immigration to the United States: Policy Overview, by

(name redacted).

S. 744 §3(c)(2)(A).

S. 744 does not define force majeure, but the term generally suggests a failure to meet the objectives, despite acting

in good faith, for reasons beyond the DHS Secretary’s control.

S. 744 §3(c)(2)(B).

For further discussion of the triggers in section 3, see CRS Sidebar WSLG511, How Do the Enforcement-Related

“Triggers” in the Senate Immigration Bill Work? Interpretations May Vary, by (name redacted).

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

with the Attorney General, the Secretary of Defense, the Inspector General of DHS, and the

Comptroller General of the United States, certifies to Congress and the President the following:

•

The Comprehensive Southern Border Security Strategy includes certain elements

added by the Hoeven-Corker-Leahy Amendment, and the Strategy is deployed

and operational (see “Border Security Strategies and Metrics”). For purposes of

the trigger provision, “operational” is defined to mean that the technology,

infrastructure, and personnel deemed necessary by the Secretary (including

specific technology allocations described in the bill, as modified) have been

procured, funded, and generally are in current use by the Department to achieve

effective control of the Southern border.

•

The Southern Border Fencing Strategy has been submitted to Congress and

implemented (see “Border Security Strategies and Metrics”). The Secretary must

certify, pursuant to such Strategy, that at least 700 miles of pedestrian fencing are

in place along the Southern border, including the replacement of existing vehicle

barriers on non-tribal land with pedestrian fencing where possible, as well as the

subsequent installation of secondary fencing in locations where the Secretary

deems it necessary or appropriate.

•

DHS has implemented a mandatory employment verification system to be used

by all employers as required by Section 3101, (see “Electronic Eligibility

Verification System”).

•

DHS is using the electronic exit system created by Section 3303 at all

international air and sea ports within the United States where Customs and

Border Protection (CBP) officers are deployed.

•

No fewer than 38,405 trained full-time active duty U.S. Border Patrol agents are

deployed, stationed, and maintained along the Southern border.20

Comprehensive Immigration Reform Funds

Section 6 of S. 744 would establish a Comprehensive Immigration Reform (CIR) Trust Fund and

a CIR Startup Account. As reported by the Senate Judiciary Committee, the bill would have

authorized the transfer of an initial $8.3 billion from the Treasury’s general fund to the CIR Trust

Fund, and $3 billion from the general fund to the CIR Startup Account.21 The Hoeven-CorkerLeahy Amendment modified the bill to increase the increase the initial transfer into the CIR Trust

Fund to $46.3 billion, and authorized additional expenditures out of the fund.

The initial $46.3 billion effectively would be an appropriation to the CIR Trust Fund and would

be made available immediately for obligation and expenditure for the following purposes:22

The exception to the trigger requirements, allowing RPIs to apply for adjustment of status within 10 years if any

trigger is not achieved to due litigation, and adverse Supreme Court ruling, does not apply to the trigger requirement

concerning the stationing of Border Patrol agents along the Southern border.

S. 744 §6(b)(2).

S. 744 §6(a)(3)(A).

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

•

$30 billion over a 10-year period for the Department of Homeland Security

(DHS) to hire and deploy at least 19,200 additional trained full-time active duty

U.S. Border Patrol agents along the Southern Border;23

•

$4.5 billion over a five-year period for DHS to carry out the Comprehensive

Security Strategy;24

•

$2 billion over a 10-year period for DHS to enact recommendations of the

Southern Border Security Commission (see “Border Security Strategies and

Metrics”) and for administrative expenses directly associated with convening and

providing summaries of public hearings required by Section 3(c)(2);

•

$8 billion over a five-year period for DHS to procure and deploy fencing,

infrastructure, and technology pursuant to the Fencing Strategy, with not less than

$7.5 billion being used to deploy, repair, or replace fencing;25

•

$750 million over a six-year period for DHS to expand and implement the

mandatory employment eligibility verification system in INA Section 274A as

amended by Section 3101 of the bill (see “Employment Eligibility Verification”);

•

$900 million over an eight-year period for the Department of State to pay for

one-time and startup costs to implement the bill; and

•

$150 million over a two-year period to be transferred to the Departments of

Labor, Agriculture, and Justice for their initial costs of implementing the bill.

The CIR Trust Fund would receive additional funding going forward from several immigrationrelated fees and penalties.26 As modified by the Hoeven-Corker-Leahy Amendment, the Secretary

of DHS would be directed to modify certain fees and penalties added by S. 744 to ensure that at

least $500 million is available in the CIR Trust Fund in FY2014 and at least $1 billion is available

for S. 744 authorizations in each of FY2015-FY2023. Immigration fees and penalties added by

the bill and deposited into the CIR Trust Fund would be designated for three purposes:

•

The first $8.3 billion of such collections would be deposited back in the general

fund (i.e., to repay the Treasury for a portion of the initial $46.3 billion transfer)

and would be used for federal budget deficit reduction.27

•

An additional $500 million would be available over five years, without further

appropriation, to pay for increased border-crossing prosecutions in the Tucson

As reported by the Senate Judiciary Committee, the CIR Trust Fund would not have designated funds to hire

additional Border Patrol agents; this provision was added by the Hoeven-Corker-Leahy Amendment on the Senate

floor.

As reported by the Senate Judiciary Committee, the CIR Trust Fund would have designated $3 billion to carry out

the Comprehensive Border Security Strategy; an additional $1.5 billion was added to this provision by the HoevenCorker-Leahy Amendment on the Senate floor.

As reported by the Senate Judiciary Committee, the CIR Trust Fund would have designated $1.5 billion to carry out

the Comprehensive Border Security Strategy; an additional $6.5 billion was added to this provision by the HoevenCorker-Leahy Amendment on the Senate floor.

S. 744 §6(a)(2)(B). For a fuller discussion of fees and penalties that would be deposited into the CIR Trust Fund, see

(name redacted) and (name redacted), “Funding Accounts, Direct and Discretionary Spending, Fees, and

Penalties in S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act,” CRS

Memorandum available from the authors.

S. 744 §6(a)(3)(B).

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Sector28 and to fund Operation Stonegarden29 pursuant to Section 1104 of S.

744.30

•

Remaining funds would be available, subject to appropriations, to carry out the

authorizations included in S. 744, including personnel increases described in

Section 1102 and operations and maintenance of other border security and

immigration enforcement investments.31

The CIR Startup Account would be used to pay for one-time and startup costs related to the act.32

Expenditure plans relating to the CIR Trust Fund and CIR Startup Account would be required.

The revenue provisions in S. 744 have raised the “blue slip” procedural matter. “Blue-slipping” is

the term applied to the act of returning to the Senate a measure that the House has determined

violates its prerogatives, nicknamed because the House returned the legislation to the Senate by

resolution printed on blue paper. The U.S. Constitution provides that “(A)ll Bills for raising

Revenue shall originate in the House of Representatives.”33 Because S. 744 would, for example,

create a new $1,000 fee to be charged to certain employers filing labor certification applications

(LCAs) to be used for purposes other than processing the LCAs, the House could “blue slip” the

legislation. Rather than “blue slipping” S. 744, the House also could simply ignore it or

reintroduce a companion bill in the House.34

Border Security35

S. 744 includes a number of sections designed to strengthen border security, including mandates

for new border security strategies; increased border security personnel, equipment, and

infrastructure; DHS waiver authority and access to certain federal lands; provisions related to

immigration-related crimes and prosecutions; and efforts to strengthen the entry-exit system. The

bill also includes a number of provisions to strengthen oversight of border security activities.

Border Security Strategies and Metrics

Under S. 744, DHS would be required to submit to Congress a “Comprehensive Southern Border

Security Strategy” (Comprehensive Security Strategy) and to establish a “Southern Border

Since the late 1990s, the Tucson sector has accounted for the largest share of unauthorized aliens apprehended along

the Southwest border; and it is also the sector in which U.S. Customs and Border Protection (CBP) initiated the

“Consequence Delivery System,” which emphasizes criminal prosecutions for immigration-related crimes as a strategy

to reduce recidivism. For a fuller discussion, see CRS Report R42138, Border Security: Immigration Enforcement

Between Ports of Entry, by (name redacted).

Operation Stonegarden is a grant program administered by the Federal Emergency Management Agency (FEMA)

within the Department of Homeland Security (DHS) to provide funding to state, local, and tribal law enforcement

agencies for border security activities.

S. 744 §§6(a)(3)(B)-(C).

S. 744 §6(a)(3)(D).

S. 744 §6(b)(4).

Article I, Section 7, clause 1 of the U.S. Constitution, known generally as the “Origination Clause.”

For further discussion of “blue slipping,” see CRS Report RL31399, The Origination Clause of the U.S.

Constitution: Interpretation and Enforcement, by (name redacted).

CRS Legislative Attorney (name redacted) contributed to this section of the report.

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Fencing Strategy” (Fencing Strategy), both within 180 days of enactment.36 The Comprehensive

Security Strategy would describe plans to achieve and maintain “effective control” of all sectors

along the Southern border. “Effective control” is defined in Section 3 to include “persistent

surveillance” and at least a 90% “effectiveness rate”; and the effectiveness rate is defined as the

sum of alien apprehensions and turn backs divided by total illegal entries.37 As amended by the

Hoeven-Corker-Leahy amendment on the Senate floor, S. 744 includes specific, detailed

minimum requirements for the amounts and types of surveillance equipment to be deployed in

each Border Patrol sector on the Southwest border as part of the Comprehensive Security

Strategy. DHS would be required to implement the Comprehensive Security strategy beginning

immediately after its submission, and to report on it semiannually.

The Fencing Strategy would identify locations along the Southern border, including ports of

entry, where fencing, infrastructure, and technology should be deployed. DHS would be required

to notify Congress upon commencing implementation of the Fencing Strategy. As amended by the

Hoeven-Corker-Leahy amendment on the Senate floor, the Fencing Strategy would be required to

identify where 700 miles of fencing should be deployed along the Southern border. As noted

elsewhere, submission and implementation of the Comprehensive Security and Fencing Strategies

would be among the triggers for the RPI legalization and adjustment of status provisions; and

Section 6 would authorize direct spending in support of the strategies (see “Comprehensive

Reform ‘Triggers’ and Funding”).

In addition, as modified by the Hoeven-Corker-Leahy amendment, within one year of enactment,

Section 4 of S. 744 would establish a Southern Border Security Commission (Commission). The

Commission would be composed of the governor of each Southern border state (along with

Nevada) or her appointee, as well as members appointed by each House of Congress and the

President. If the DHS Secretary cannot certify that DHS has achieved effective control of all

Southern border sectors for at least one year before the date that is five years after the bill’s

enactment, the Commission would be required to issue a report making recommendations on how

to achieve and maintain border security goals, and would terminate after the issuance of the

report. As noted elsewhere, the bill also would authorize direct spending to implementing the

recommendations of the Commission (see “Comprehensive Immigration Reform Funds”); such

spending would begin after the Commission report is issued, no sooner than five years after the

bill’s enactment.

As amended on the Senate floor (by the Hoeven-Corker-Leahy Amendment), the Secretary of

State, in coordination with DHS and in consultation with Congress, also would be required to

develop a strategy to address unauthorized immigration of individuals who transit through

Mexico to the United States. The strategy would include steps to enhance the training of border

and law enforcement personnel in Mexico and certain Central American states, and to educate the

nationals of such countries about certain risks associated with illegal migration to the United

States. The bill would authorize the Secretary of State to use funds from the CIR Trust Fund to

implement this strategy.38

S. 744 §5.

For a fuller discussion of border security metrics, see CRS Report R42138, Border Security: Immigration

Enforcement Between Ports of Entry, by (name redacted).

S. 744 §1203.

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Border Security Personnel, Equipment, and Infrastructure

Sections 1102-1109 of S. 744 would expand certain border enforcement programs and authorize

border security funding. These sections would supplement previous investments by DHS and the

legacy Immigration and Naturalization Service (INS).39

As reported by the Senate Judiciary Committee, Section 1102 of the bill would require U.S.

Customs and Border Protection (CBP) to add 3,500 trained CBP officers by the end of FY2017.

This section was modified by the Hoeven-Corker-Leahy amendment on the Senate floor to also

require that DHS increase the number of trained full-time active duty U.S. Border Patrol agents

deployed to the Southern border to 38,405; that the number of CBP Air and Marine crew and

personnel increase by 160; and that the number of Air and Marine flight hours increase to

130,000 annually.40 The section (as amended on the floor) also would require DHS and the

Department of Defense (DOD) to create a program to recruit former members of the armed forces

to serve in CBP and ICE, and use a program to repay student loans as a recruitment incentive.

The bill also would authorize the National Guard, operating under Title 32 authority (i.e.,

remaining under the authority of state governors while receiving federal pay and benefits), to

assist border security efforts, including through the construction of fencing and other

infrastructure, the deployment of surveillance aircraft, and by assisting CBP operations in rural,

high-trafficked areas.41 Section 1104 would authorize funding for additional Border Patrol

forward operating bases and other infrastructure, including distress beacons along the Northern

and Southern borders in areas where migrant deaths are occurring,42 and would establish a grant

program for the construction and improvement of infrastructure to facilitate border crossings.

DHS would be directed to deploy manned and unmanned aircraft and other surveillance

equipment to ensure “continuous surveillance” of border areas, with necessary funding authorized

for FY2014 – FY2018.43 A grant program would be established and funding authorized to

improve 9-1-1 service in rural areas; and funding also would be authorized to improve radio

communication among border-area law enforcement agencies.44 Section 1109 would direct DOD

and DHS officials to identify DOD equipment and technology that could be used by CBP at the

border.

DHS Waiver Authority and Access to Federal Lands

In general, federal agencies are required to review the potential impact of proposed projects on

national and cultural resources prior to committing resources to a project.45 These environmental

For a fuller discussion of previous investments in border enforcement and the current state of border security, see

CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by (name redacted).

By comparison, in FY2012, CBP reported 18,462 Border Patrol agents on the Southwest border; 1,138 Air and

Marine agents; and 81,045 flight hours. See ibid.

S. 744 §1103.

Provisions regarding distress beacons were added pursuant to the Hoeven-Corker-Leahy amendment during debate

on the Senate floor.

S. 744 §1106.

S. 744 §1107.

See, among other laws, the National Environmental Policy Act of 1969 (42 U.S.C. §§4321 et seq.), the Endangered

Species Act of 1973 (16 U.S.C. §§1531 et seq.), and the National Historic Preservation Act (16 U.S.C. §§470 et seq.).

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and other review requirements may delay the construction of certain border barriers and other

infrastructure; but existing law grants DHS broad authority to waive legal requirements that

might delay construction of border barriers.46 S. 744 would grant the DHS Secretary authority to

waive any law she determines necessary to ensure expeditious construction of barriers, roads, and

other infrastructure to secure the Southern border.47 This provision is similar to existing waiver

authority, but only applies to projects along the Southern border, and potentially applies to a

broader range of border infrastructure projects than the waiver authority in current law. The

Secretary must identify and justify each law being waived; and the waiver would terminate upon

certification that the Comprehensive Security and Fencing Strategy requirements for RPIs to

adjust to LPR status have been satisfied (see “Triggers and for Legalization and Adjustment to

Status”). Judicial review of action taken pursuant to this authority is limited.

The Southwest border includes extensive federal lands; and some have been identified as “highrisk areas” for marijuana smuggling and illegal migration.48 DHS has entered into Memoranda of

Understanding with the U.S. Department of Agriculture and the Department of the Interior

governing CBP access to federal lands, among other topics.49 Some Members of Congress have

argued that that DHS should have more complete access to such lands for enforcement

purposes.50 Under Section 1105 of S. 744, the Secretaries of Agriculture and the Interior would be

required to provide CBP with immediate access to federal lands within 100 miles of the southern

Arizona border for certain border security activities. These activities would be conducted “to the

maximum extent practicable” to protect natural and cultural resources. Environmental impact

statements would be issued in accordance with the National Environmental Policy Act of 1969,51

but the impact statements would not restrict or delay DHS actions on federal lands.

Immigration-Related Crimes

Certain aliens apprehended at the border and others involved in facilitating illegal migration may

face immigration-related criminal charges under current law (also see “Interior Enforcement”).

Several sections in Title III of S. 744 would modify these laws. The bill would rewrite INA

Section 275 (unlawful entry) to increase civil and misdemeanor penalties for first-time offenses,

impose felony penalties when aggravating circumstances exist (e.g., re-entry following a

voluntary departure order), and also to eliminate criminal liability for attempted unlawful entry.52

The bill would amend INA Section 276 (unlawful reentry) to increase criminal penalties, provide

affirmative defenses to certain aliens who had been removed as minors, and exempt certain

offenses involving emergency humanitarian assistance.53 Additionally, S. 744 would create new

For a fuller discussion, see CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry,

by (name redacted).

S. 744 §3(d).

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, p. 15.

For a fuller discussion of border security on public lands see CRS Report R42346, Federal Land Ownership:

Overview and Data, by (name redacted), (name redacted), and (name redacted).

See for example, U.S. Congress, House Committee on Natural Resources, Subcommittee on National Parks, Forests,

and Public Lands, The Border: Are Environmental Laws and Regulation Impeding Security and Harming the

Environment?, 112th Cong., 1st sess., April 15, 2011.

42 U.S.C. §§4321 et seq.

S. 744 §3704.

S. 744 §3705.

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felony offenses relating to the commercial smuggling of five or more people, impose criminal

penalties for hindering or obstructing alien apprehensions, and impose enhanced penalties for use

of a firearm in an alien smuggling offense.54 With respect to these border-related crimes, S. 744

would require guidelines to delay prosecutions against aliens seeking humanitarian relief from

removal or immigration status until such adjudications are completed.55 S. 744 also would

increase civil penalties for aircraft or vessel operators who fail to detain or transport out of the

country unauthorized aliens that were transported by the operator into the country.56

Title III of S. 744 also would rewrite chapter 75 of the U.S. Criminal Code (passport and

immigration-related document fraud), expanding its scope and increasing penalties for certain

offenses.57 The U.S. Sentencing Commission would be required to reexamine minimum

sentencing guidelines for fraud-related offenses.58 DHS would be required to establish rules to

deter fraud in the preparation of immigration documents.59 And S. 744 would impose new

criminal penalties for drug cultivation on federal lands.60

Historically, most aliens apprehended at the border have been repatriated to their country of

origin without facing criminal charges, but DHS has worked with the Department of Justice

(DOJ) to charge a higher proportion of people apprehended at the border.61 Title I of S. 744

includes several provisions to support this goal. Section 1104 would provide funding from the

Trust Fund to support increased prosecutions in the Tucson sector, including through the

appointment of attorneys, staff, and federal district court and magistrate judges.62 Trust Fund

funding also would reimburse sub-federal and tribal jurisdictions for detention costs relating to

those prosecutions; and would fund competitive grants to sub-federal and tribal border-area law

enforcement agencies through Operation Stonegarden,63 with the proviso that at least 90% of such

grants would reimburse immigration enforcement and drug smuggling expenses.64 In addition, the

Attorney General would be required to reimburse sub-federal governments for costs related to the

prosecution, detention, and other associated costs of federally-initiated criminal cases that are

declined by U.S. Attorneys, as long as the underlying apprehensions were lawfully conducted,

with appropriations authorized for FY2014-FY2018.65 And Section 1110 would modify and

S. 744 §3712.

S. 744 §3710.

S. 744 §3706. The bill would include a humanitarian exemption from these penalties.

S. 744 §3707.

S. 744 §3710.

S. 744 §3708.

S. 744 §3306.

See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by (name re

dacted).

Since the late 1990s, the Tucson sector has accounted for the largest share of unauthorized aliens apprehended along

the Southwest border; and it is also the sector in which CBP initiated the “Consequence Delivery System,” which

emphasizes criminal prosecutions for immigration-related crimes as a strategy to reduce recidivism. See Ibid. As

introduced, the bill would have added magistrate judges, but no district judges. As amended during markup, §1104 also

would direct the president to appoint eight new district court judges, divided among California, Texas, and Arizona.

District court judges would not be funded by the Comprehensive Immigration Reform Trust Fund.

Operation Stonegarden is a grant program administered by the Federal Emergency Management Agency (FEMA)

within DHS to provide funding to state, local, and tribal law enforcement agencies for border security activities.

S. 744 §1104.

S. 744 §1108.

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reauthorize through FY2015 the State Criminal Alien Assistance Program (SCAAP), which

reimburses state prisons and local jails for the cost of detaining certain criminal aliens.

Oversight of Border Security Activities

Other provisions in Title I of S. 744 concern oversight of border security activities. DHS would

be required to work with DOJ to issue new rules governing the use of force by DHS personnel, as

well as procedures to review the use of force, investigate complaints, and discipline those who

violate such rules.66 Section 1112 would require DHS to provide border personnel specialized

training to identify fraudulent documents, respect individual rights, and comply with use of force

rules; and DHS would be required to provide specialized training for border community liaison

officers and to establish standards for the humane treatment of children in CBP custody (also see

“Protection of Children during Immigration Enforcement”). An independent task force consisting

of Northern and Southern border-area stakeholders would be established to review border

enforcement and make recommendations.67 A new Ombudsman for Immigration Related

Concerns would be charged with monitoring immigration and enforcement policies of CBP, U.S.

Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services,

(USCIS), recommending policy changes, and assisting victims of crime or violence committed by

aliens along the border, among other responsibilities.68 DHS also would be required to establish

procedures to ensure that apprehended families of arriving aliens remain united, when feasible,69

and that aliens deported or removed to Mexico are repatriated during daylight hours under most

circumstances.70 As amended on the Senate floor, Section 1116 of the bill would restrict DHS

authority to conduct warrantless searches of vessels and conveyances and private lands near the

Northern border, though the Secretary would be permitted to conduct such searches under certain

conditions. Several new DHS reports would be required to help Congress monitor these and other

border-related issues.71

Entry-Exit System

Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA, P.L. 204-208, Div. C) required development of an automated entry-exit system that

collects records of alien arrivals and departures and that analyzes such records to identify

nonimmigrants who overstay their visas (i.e., “visa overstays”). Subsequent legislation has

revised and expanded this entry-exit requirement on several occasions, but the system has never

been fully implemented.72

The existing system collects and stores biographic data (i.e., names, birthdates, and other

identifying information) and biometric data (i.e., fingerprints and digital photographs) about

S. 744 §1111.

S. 744 §1113.

S. 744 §1114.

S. 744 §1115.

S. 744 §1122.

S. 744 §§1114, 1115, 1117, 1120, 1122.

For a fuller discussion see CRS Report R42985, Issues in Homeland Security Policy for the 113th Congress,

coordinated by (name redacted).

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aliens traveling to and from the United States. The system has been operational at almost all U.S.

ports of entry since December 2006, and it has collected biometric data since January 2009 from

non-citizens entering through air and seaports and from non-citizens subject to secondary

inspection at land ports.73 Most aliens entering at land ports only provide biographic information,

however. And although DHS has tested pilot programs to capture biometric exit data at air and

land ports, the current exit system is limited to biographic data, and also is limited to airports and

seaports.74 Under an agreement with Canada, the United States is scheduled to collect biographic

data from third country nationals exiting via northern border lands beginning in June 2013.75

S. 744 includes several provisions intended to create a more robust exit tracking system. The bill

would require DHS, by December 31, 2015, to establish a biographic exit system that collects

machine-readable passport and other travel information (i.e., biographic data) for all aliens

exiting from air and sea ports.76 As noted elsewhere, the implementation of this system would be

one of the triggers for implementation of the adjustment of status provisions for RPIs (see

“Triggers for Legalization and Adjustment to LPR Status”).77 Air and sea carriers would be

responsible for collecting passenger exit data in a secure manner and for transmitting the

information to DHS; and $500 million would be appropriated to reimburse carriers for such data

collection.78 In addition, DHS would be required, within two years of enactment, to establish a

biometric exit system at the ten U.S. airports with the greatest volume of international air travel.79

The U.S. Government Accountability Office (GAO) would be required to review the program,

and DHS would be required within six years to expand biometric exit data collection to 30

airports, and to develop a plan to expand the system to major land and sea ports.80 Exit data

would be fully integrated and interoperable with other DHS immigration databases, DOJ

immigration enforcement databases, and Department of State (DOS) Consular Affairs databases.

In addition, Section 3711(b) would make the withholding of information for biometric screening

a basis for inadmissibility.

Visa Overstays

A primary goal of the entry-exit system is to limit visa overstays. Section 3303(c) of S. 744 would

require DHS to ensure that information about visa overstays is shared across DHS and other

federal law enforcement agencies, and that “reasonably available enforcement resources are

employed’’ to locate and commence removal proceedings against visa overstayers identified by

the entry-exit system. In addition, S. 744 was modified on the Senate floor (by the HoevenCorker-Leahy amendment) to include additional provisions designed to monitor and limit visa

overstays. Under Section 1201, DHS would be required, beginning 180 days after enactment, to

initiate removal proceedings, confirm that immigration relief has been granted or is pending, or

otherwise close at least 90 percent of the cases of nonimmigrants who entered the United States

Ibid.

For a fuller discussion, see Ibid.; and CRS Report R42644, Department of Homeland Security: FY2013

Appropriations, coordinated by (name redacted).

CRS briefing with DHS Office of Congressional Affairs, April 3, 2013.

S. 744 §3303(a)(1).

S. 744 §3(c)(2)(A)(iv).

S. 744 §3304.

S. 744 §3303(a)(2).

S. 744 §§3303(a)(3)-(5).

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after the bill’s enactment and who have overstayed their visa by more than 180 days. The section

also would require DHS to issue semiannual reports on visa overstay rates and enforcement

outcomes. In addition, Section 1202 would direct DHS to establish a pilot program to notify

nonimmigrants who have not departed the United States when their visa or period of authorized

admission is about to expire.

Interior Enforcement81

The immigration rules established by the INA are supplemented by an enforcement regime to

deter and punish violations of those rules. Violations may be subject to criminal penalties (see

“Immigration-Related Crimes”), civil fines, and/or may be grounds for an alien to be removed

from the country. With respect to the latter, the INA identifies two overarching reasons aliens may

be ordered removed: grounds for inadmissibility and grounds for deportability.82 The standard

removal process, described in INA Section 240, is a civil administrative proceeding before an

immigration judge from the DOJ Executive Office for Immigration Review (EOIR). In some

cases, immigration judges may grant certain forms of relief during the removal process, though

their discretion is limited with respect to certain grounds for removal.

Provisions in S. 744 would amend the INA’s interior enforcement provisions in several ways.

Subtitle E of Title III would provide additional resources to immigration courts (see “Immigration

Courts”). The bill would create additional grounds of inadmissibility and deportability, while also

broadening judges’ discretion to waive certain such grounds (see “Grounds of Inadmissibility,

Deportability, and Relief from Removal”). S. 744 also would encourage alternatives to detention

and strengthen DHS detention standards as well as congressional oversight of immigrant

detention (see “Immigrant Detention”). Subtitle H of Title III of S. 744 establishes special

procedures to protect children who are affected by immigration enforcement (see “Protection of

Children during Immigration Enforcement”). And other provisions in Title III address several

additional aspects of immigration enforcement within the United States (see “Additional Interior

Enforcement Provisions”).

Immigration Courts83

With increased immigration removals in recent years, many immigration courts have seen growth

in their hearing dockets, and aliens in removal proceedings may face wait times of months or

even years in certain jurisdictions.84 Some Members of Congress have expressed concerns about

CRS Legislative Attorney (name redacted) and CRS

Specialist in Immigration Policy (name redacted) contributed

to this section of the report.

INA §§212 and 237, respectively. Historically, the INA included separate provisions governing the “exclusion” of

aliens who were ineligible to enter the country (i.e. “excludable” persons), and the “deportation” of certain aliens

within the United States (“deportable” persons). The Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA, P.L. 104-208, Div. C), created a single proceeding to cover both types of “removable” aliens.

Nonetheless, the INA retains two separate grounds for removal: (1) for an alien who has not been admitted to the

United States and is inadmissible under INA §212, and (2) for an alien who has been admitted to the United States (i.e.,

enters legally) and is deportable under INA §237.

CRS Legislative Attorney (name redacted), and

CRS Specialist in Immigration Policy (name redacted)

contributed to this section of the report.

U.S. Congress, Senate Committee on the Judiciary, Improving Efficiency and Ensuring Justice in the Immigration

Court System, Testimony of the American Immigration Lawyers Association, 112th Cong., 1st sess., May 18, 2011.

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long removal wait times for some non-detained aliens placed in removal proceedings before

EOIR.85 Some also have expressed concern that, because removal is a civil proceeding, aliens are

not guaranteed legal counsel (though aliens do have a right to counsel at no expense of the

government), and some aliens may not be competent to represent themselves.86

S. 744 apparently seeks to address these concerns, and generally to ensure that aliens in removal

proceedings have adequate opportunities to seek relief. The bill would increase the number of

immigration judges by 75 per year for FY2014 through FY2016, and would also increase the

number of immigration staff attorneys, paralegals, and Board of Immigration Appeals (BIA) staff

attorneys.87 S. 744 would also provide statutory authority for the BIA (currently established

through regulations);88 codify certain standards for immigration judge and BIA decisions;89

require EOIR to review and improve training programs for immigration judges, BIA members,

and their staffs;90 and require EOIR to ensure adequate resources and services during immigration

proceedings.91 Funding would be appropriated from the CIR Trust Fund to support the new

personnel increases, training, and technology.92

Funding also would be appropriated for a pair of programs to enhance aliens’ representation

during removal proceedings. The Attorney General (AG) would be authorized to provide counsel

to aliens in such proceedings at the AG’s sole and unreviewable discretion. And the AG would be

required to provide counsel, at government expense if necessary, for unaccompanied alien

children, persons determined to be legally incompetent due to a serious mental disability, and

certain other vulnerable persons.93 The AG also would be required to maintain an Office of Legal

Access Programs within EOIR. The Office would develop legal orientation programs to educate

alien detainees and other aliens in removal and asylum proceedings about their rights and to

improve access to counsel, including in some cases at government expense.94 The AG also would

assume responsibility, pursuant to the Trafficking Victims Protection Reauthorization Act of 2008

(P.L. 110-457), for providing access to legal representation and appointing independent child

advocates to child trafficking victims. Unexpended funds and contract authority to support such

services would be transferred from the Secretary of Health and Human Services to DOJ.95

In addition, DHS would be required, at the beginning of removal proceedings, to provide an alien

with complete copies of all relevant documents that DHS possesses (so-called “A-files”),

including documents DHS has obtained from other agencies, with the exception of privileged or

law enforcement sensitive documents.96 Removal proceedings could not proceed until an alien

See for example, U.S. Congress, Senate Judiciary Committee, “Building an Immigration System Worthy of

American Values,” March 20, 2013.

Ibid.

S. 744 §§3501(a)-(c).

S. 744 §3504.

S. 744 §3505.

S. 744 §3506.

S. 744 §§3501(d), 3502(d), 3503(e), 3505(b), and 3506(f).

S. 744 §3502.

S. 744 §3503.

S. 744 §3507.

These documents include information pertaining to all transaction during the immigration process (commonly

referred to as an A-file).

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has received the required documents or waived the right to do so.97 S. 744 would also require

EOIR to maintain records and report to Congress information on aliens in removal proceedings,

including how the hearings are conducted (e.g., in person, by teleconference) and the outcomes of

any hearings.98

Grounds of Inadmissibility, Deportability, and

Relief from Removal

S. 744 would amend the grounds of inadmissibility and deportability in the INA in several ways.99

The bill would add language to these provisions regarding conduct related to criminal street

gangs, with the inadmissibility grounds related to such activity being somewhat broader in scope.

Such conduct also would make aliens ineligible for adjustment to RPI status, though limited

waivers would apply in this case and with respect to inadmissibility.100 The bill also would make

three or more convictions for driving under the influence (DUI) a ground for deportability and

inadmissibility101 A third such conviction would be made an aggravated felony for immigration

purposes,102 and therefore such an alien would be subject to more limited relief from removal.

Certain types of immigration-related fraud also would be made grounds for deportability and

inadmissibility.103 And S. 744 would make crimes involving domestic violence, stalking, and

child abuse, along with violations of protection orders, grounds for inadmissibility (though these

new grounds generally would be more narrow than corresponding grounds of deportability found

in current law).104 As noted elsewhere, withholding information for biometric screening also

would be made a ground for inadmissibility (see “Entry-Exit System”).105

The bill also would expand the grounds for inadmissibility related to torture and extrajudicial

killings, and would add war crimes and widespread human rights violations as inadmissibility

grounds, though these added grounds would not apply when the acts were committed under

duress). The President would be authorized to release the names of persons deemed inadmissible

on these grounds.106 Moreover, the bill would amend the Torture Victims Protection Act to

reference some of these added grounds in defining the scope of conduct for which covered

entities be held civilly liable. The bill would clarify that sexual abuse of minor is an aggravated

felony for immigration purposes regardless of whether the victim’s age is established by extrinsic

evidence to the record of conviction.107

S. 744 §3508.

S. 744 §3720(c).

INA §§212 and 237.

100

S. 744 §3701.

101

S. 744 §§3702(a)-(b).

102

S. 744 §3702(c). For a fuller discussion of the aggravated felony provisions of the INA, see CRS Report RL32480,

Immigration Consequences of Criminal Activity, by (name redacted); and CRS Sidebar WSLG454,

Will

Immigration Reform Legislation Revisit the Definition of “Aggravated Felony”?, by (name redacted).

103

S. 744 §3709.

104

S. 744 §3711(c).

105

S. 744 §3711(b).

106

S. 744 §3719.

107

S. 744 §3703.

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S. 744 also would increase discretion to waive certain grounds of inadmissibility. It would strike

“extreme” from the hardship waiver for the 3- and 10-year bars for aliens who have been illegally

present in the United States if they are parents of U.S. citizens or LPRs.108 And it would give

immigration judges discretion to not order certain aliens in proceedings to be removed, deported,

or excluded if the judge determined that such actions were against the public interest, would

create a hardship to the alien’s U.S. citizen or permanent resident immediate relatives, or if the

alien appeared eligible for naturalization.109 This waiver would not be available to individuals

subject to removal or inadmissibility based on certain criminal and national security grounds.

DHS would have similar discretion to waive grounds of inadmissibility. In addition, an exception

to the reinstatement of removal orders would be created for aliens who reentered prior to age 18,

or where reinstatement would not be in the public interest or create hardship for the alien’s U.S.

citizen or LPR parent, spouse, or child.110

Immigrant Detention

The Immigration and Nationality Act (INA) provides broad authority to detain aliens while

awaiting a determination of whether they should be removed from the United States and

mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must

be detained) by DHS.111

Aliens placed in removal proceedings who are not subject to mandatory detention may, depending

on the circumstances, be detained or released either on conditional parole (including on the

alien’s own recognizance) or on bond.112 S. 744 would establish new statutory requirements for

bond hearing procedures and the filing of notices to appear for aliens. All aliens would have the

opportunity to appear before an immigration judge after DHS’s custody determination. Other than

in the cases of certain terrorists and criminal aliens, detention would be required only if the

Secretary demonstrates that no conditions, including the use of alternatives to detention that

maintain custody over the alien, will reasonably assure the appearance of the alien and the safety

of any other person. Except for certain criminal aliens and terrorist aliens, immigration judges

would be required to review custody determinations (even in the case of mandatory detainees);

and the bill would also provide for additional review by an immigration judge every 90 days as to

whether the custody of a detained alien is warranted.113

For aliens not eligible for bail or to be released on recognizance, S. 744 would require DHS to

establish a secure alternative program offering a “continuum of supervision mechanisms and

108

S. 744 §2315.

S. 744 §2314.

110

S. 744 §2314.

111

For a fuller discussion of immigrant detention, see CRS Report RL32369, Immigration-Related Detention, by

(name redacted). For discussion of judicial interpretation of mandatory detention provisions, see CRS Sidebar WSLG524,

How “Mandatory” Is the Mandatory Detention of Certain Aliens in Removal Proceedings?, by (name redacted).

112

INA §236(a). Release from immigration authorities’ custody under “conditional parole” is distinct from the parole

of aliens into the United States under INA §212(d)(5), under which the Secretary of DHS may permit the temporary

physical entry of aliens into the United States for urgent humanitarian reasons or a significant public benefit, without

such entry constituting formal admission into the country for immigration purposes. See Matter of Luis CastilloPadilla, 25 I & N Dec. 257 (BIA 2010).

113

S. 744 §3717.

109

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options” within each ICE field office.114 All aliens, including those subject to mandatory

detention (other than suspected terrorists and security threats held under INA Section 236A)

would potentially be eligible for the secure alternative program.115 DHS would also be authorized

to contract with non-governmental organizations to implement secure alternatives.116

For aliens in detention, ICE has adopted national detention standards specifying detention

conditions for immigration detainees; but existing standards do not themselves have the force of

law, and detainees may have more limited recourse to violations of these standards than violations

of applicable statutes and regulations.117 S. 744 would require DHS to adopt such standards and

would provide oversight and compliance mechanisms. These mechanisms would include regular

inspections (at least annually) of all DHS detention facilities, financial penalties and/or the

termination of contracts for non-compliant facilities; and annual reports to Congress.118 The bill

also would limit the use of solitary confinement of detained aliens, and set procedures that would

have to be followed if an alien was placed in solitary confinement.119 Furthermore, S. 744 would

require DHS to maintain records and report to Congress on the detention of aliens, including

information regarding the length of an alien’s detention, the charges that serve as the basis for

removal proceedings against him, and the status of such proceedings.120

Protection of Children during Immigration Enforcement

S. 744 include provisions intended to ensure that an alien’s detention and/or removal does not

result in the termination of a parent or caregiver’s parental rights.121 The bill would require state

child welfare agencies to offer certain protections and services to children in foster care who are

separated from their parents due to immigration enforcement, and generally would make the fact

that a child’s parent had been detained or removed because of an immigration proceeding a

compelling reason for a state child welfare agency not to seek termination of parental rights

(TPR) to a child in foster care. Further, before the agency could file for TPR, S. 744 would

require the agency to make reasonable efforts to locate a parent who has been removed from the

country, notify that parent of the TPR proceedings, or reunite the child with the parents.

The bill would stipulate that a state’s child protection standards cannot disqualify a parent or

other relative as a placement option solely based on the immigration status of the adult and would

require state child welfare agencies to ensure certain services and protections are offered to

children in foster care whose parents are deported or detained under immigration law. Such

services would include providing a case manager or native language interpreter, documenting in

the child’s written case plan the location of the parent or relative from whom the child was

removed, and working with DHS to ensure parents who want their children to leave the country

with them have enough time and access to necessary documents, among other requirements. The

114

S. 744 §§3715(a)-(b). An ICE pilot program established in 2004 provides such alternatives in certain locations; for a

fuller discussion see CRS Report RL32369, Immigration-Related Detention, by (name redacted).

115

S. 744 §§3715(c)-(d).

116

S. 744 §3715(b).

117

For a fuller discussion see CRS Report RL32369, Immigration-Related Detention, by (name redacted).

118

S. 744 §3716.

119

S. 744 §3717(b).

120

S. 744 §3720.

121

S. 744 §2107(b).

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bill would also require DHS to determine within two hours if an individual apprehended during

an immigration enforcement action is a parent or other primary caregiver of a child in the United

States. DHS would be required to provide such parents or caregivers at least two telephone calls

to arrange for the child’s care, to notify relevant child welfare agencies if the parent or caregiver

is unable to make arrangements for the child or if the child is at imminent risk of harm, and to

ensure that the best interest of the child is considered on any decisions related to detention.122

In addition, S. 744 would require that detention facilities provide mechanisms for detained

parents/caregivers to maintain contact and custody of their children including by permitting

regular calls and contact with the children and allowing detainees to participate in family court

proceedings, ensuring that the detainee is able to fully comply with all family court or child

welfare agency orders impacting custody of their children, and providing access to applications to

request travel documents for their children.123 The bill would mandate that the Secretary of DHS,

in consultation with the AG, Secretary of HHS and child welfare and family law experts, develop

training on the new requirements under the bill.124

Additional Interior Enforcement Provisions

S. 744 includes several additional provisions related to the enforcement of immigration laws

within the United States and related issues (also see “Immigration-Related Crimes”). The bill

would narrow immigration officers’ authority to engage in enforcement actions in “sensitive

locations” such as schools and hospitals without prior approval or exigent circumstances. It would

also require DHS to report annually to Congress on any such enforcement actions125 The bill

would provide that stipulated removal pursuant to INA Section 240(d) may only be granted

following an in-person hearing that finds that the concession of removability is voluntary,

knowing, and intelligent.126 S. 744 also would appear to give the State Department discretion to

discontinue granting only certain types of visas upon notification that a country is refusing

repatriation of its nationals, rather than discontinuing all immigrant or nonimmigrant visas (or

both) as may occur under current law.127 In addition, S. 744 would eliminate the INA provision

that currently allows a U.S. citizen to renounce citizenship during a time of war if the Attorney

General approves the renunciation as not contrary to the interest of national defense.128 And it

would broaden the criminal investigatory authority of State Department and Foreign Service

Special Agents.129

122

S. 744 §3803.

S. 744 §3804.

124

S. 744 §3805.

125

S. 744 §3720.

126

S. 744 §3717.

127

S. 744 §3718.

128

S. 744 §3713 (striking INA §349(a)(6)). This provision could have implications for the detention or trial of a U.S.

person deemed to be an enemy belligerent either in the conflict with Al Qaeda or some other future conflict. For

example, in 2004, a dual U.S.-Saudi national detained by U.S. military authorities as an “enemy combatant” was

released from U.S. custody and permitted to return to Saudi Arabia after he agreed to renounce his U.S. citizenship.

129

S. 744 §3714.

123

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Employment Eligibility Verification and

Worksite Enforcement130

Since the enactment of the Immigration Reform and Control Act (IRCA) of 1986, it has been

illegal 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.131 Employers are required to review documents to

verify the identity and work eligibility of new employees; and employers and employees must

sign a form attesting that they have reviewed such documents (in the case of the employer) and

are authorized to work in the United States (in the case of the worker).132 The law also gives

immigration officers and administrative law judges (ALJs) authority to investigate alleged

violations of these provisions, and establishes civil monetary penalties for substantive and

paperwork violations, as well as criminal penalties for a pattern or practice of violations.133

Certain employers also use E-Verify, an Internet-based system that checks information provided

by workers during the verification process against federal databases.134

Section 3101 of S. 744 would strike and re-write the employment verification and worksite

enforcement provisions of the INA, imposing a new requirement to be phased in over time that all

employers use an electronic eligibility verification system (EVS) similar to E-Verify, and

strengthening the law’s compliance provisions, among other changes. In general, civil and

criminal penalties for hiring unauthorized workers would roughly double relative to their current

levels. The law also would provide for several types of enhanced penalties, including special

compliance plans, property liens, and potential debarment from federal contracts. At the same

time, the bill would impose a tougher standard of proof for liability, and pre-penalty notices that

only could be issued if there is reasonable cause to believe a civil violation has occurred in the

past three years. Other sections of S. 744 include a number of provisions apparently designed to

limit the burden on employers that would result from these changes to INA Section 274A (see

“Employer Protections”), and to prevent discrimination and otherwise protect lawful workers

against potential adverse effects of the new system (see “Worker Protections”).

As noted elsewhere (see “Comprehensive Immigration Reform Funds”), Section 6 of S. 744

would appropriate $750 million over a six-year period for DHS to expand and implement the

EVS.135 In addition, Section 3301 would establish an Interior Enforcement Account, and

authorize $1 billion to support actions by DHS, the Commissioner of Social Security, the

Attorney General, and the Department of State to carry out provisions described in Title III.

Included within this authorization, DHS would be authorized, within five years, to increase to

5,000 the number of USCIS and ICE personnel assigned to administer and enforce the laws

discussed in this section. The Secretary of DHS and the Commissioner of the Social Security

130

CRS Specialist in Immigration Policy (name redacted) and CRS Legislative Attorney (name redacted) contributed to

this section of the report.

131

For an overview of existing employer sanctions provisions, see CRS Report R40002, Immigration-Related Worksite

Enforcement: Performance Measures, by (name redacted).

132

INA §274A(b)

133

INA §274A(e)-(f).

134

For an overview of the E-Verify program, see CRS Report R40446, Electronic Employment Eligibility Verification,

by (name redacted).

135

S. 744 §6(a)(3)(A)(iv).

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Administration (SSA) would be required to enter into a reimbursable agreement to cover the full

costs of SSA’s responsibilities under the EVS. DHS would be required to issue regulations to

implement Section 3101 no later than one year after the bill’s enactment.136

Document Verification Requirements and Document Integrity

The document verification requirements under Section 3101 of S. 744 would be similar to the

existing system, with employers and new employees, respectively, required to attest to having

reviewed workers’ documents evidencing identity and work authorization and to being authorized

to work in the United States. The bill would add “enhanced” driver’s licenses or identification

cards to the list of documents workers may present to establish both identity and employment

eligibility.137 In addition, Section 3101 would include two new tools to combat the use of

fraudulent documents by unauthorized workers. USCIS would be required to publish pictures of

acceptable documents on its website. And employers would be required to use a new identity

authentication mechanism to be developed by DHS. For certain documents, the mechanism would

consist of a “photo tool” to detect documents that have been altered by photo substitution by

allowing employers to check photographs on certain identity documents presented by workers

against original images from the same documents.138 DHS would develop another mechanism for

documents whose images are not available. Section 3101 would authorize $250 million for a

DHS grant program for states to provide DHS with access to driver’s license information to

support the photo tool.

The bill also would address document integrity by requiring the Commissioner of Social Security,

within five years of enactment of S. 744, to issue only “fraud-resistant, tamper-resistant, wearresistant, and identity theft-resistant” Social Security cards.139 New criminal penalties would be

created for fraudulent use of or traffic in a Social Security card or number.140 And DHS would be

required to study the possible addition of biometric data to employment authorization

documents.141

Electronic Eligibility Verification System

Section 3101 of S. 744 would establish and make permanent an electronic eligibility verification

system (EVS) modeled on the current E-Verify system, and eventually would require that all

employers use the system. Under E-Verify, employers submit information from workers’ identity

and work eligibility documents to USCIS to be checked against Social Security and (in some

136

S. 744 §3106.

Such licenses or cards would be those that meet the requirements of §202 of the REAL ID Act of 2005 (P.L. 109-13,

Div. B) and that are certified as suitable by DHS. Under current law, INA §274A(b)(1)(D) provides that driver’s

licenses may be used to establish identity, but not work eligibility. For a fuller discussion of the identification standards

under the REAL ID Act, see archived CRS Report RL32754, Immigration: Analysis of the Major Provisions of the

REAL ID Act of 2005, by (name redacted), (name redacted), and (name redacted).

138

USCIS currently makes such a photo tool available through the E-Verify system for certain identity documents. See

CRS Report R40446, Electronic Employment Eligibility Verification, by (name redacted).

139

S. 744 §3102(a).

140

S. 744 §3102(c).

141

S. 744 §3103.

137

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cases) DHS databases to confirm that the information matches federal records. In this way, EVerify is designed to detect certain types of fraudulent documents.142

Current law makes E-Verify a primarily voluntary system;143 but S. 744 would require certain

employers to begin using the EVS immediately, and would require all employers to use the

system within six years of the bill’s date of enactment.144 Participating employers would be

required to register and to comply with EVS procedures. Eventually, all employers would have to

use the system to verify newly-hired workers during the first three days of employment, and to reverify all workers with expiring employment authorization documents. An employer who hires a

worker without using the EVS after the date on which the employer is required to use the system

would be presumed to have knowingly hired an unauthorized worker.145 Section 3101 would also

authorize DHS to require that certain employers verify current workers who were not previously

confirmed through the EVS.146

Similar to E-Verify, the EVS would be designed to immediately (or within three days) provide

either a confirmation of work eligibility, or a “further action notice” indicating that the worker’s

eligibility initially could not be confirmed. Employers would be required to notify workers in

receipt of a further action notice, to allow workers to correct potential database or user errors; and

workers would have 10 days to contest the notice.147 In cases in which a worker fails to contest a

further action notice or nonconfirmation, or exhausts his or her opportunities to contest or appeal

a finding by the system that the worker is unauthorized, an employer would be required to

terminate the worker’s employment. Failure to do so would create a rebuttable presumption that

the employer knowingly hired and continued to employ an unauthorized worker. USCIS also

would be required to provide ICE with information about workers nonconfirmed by the system.

Employer Protections

Some Members of Congress have raised concerns about how changes to strengthen employment

eligibility verification and worksite enforcement may affect certain U.S. employers.148 Some

Members also have raised concerns about the costs to certain businesses of using the EVS.149 And

142

For a fuller discussion, see CRS Report R40446, Electronic Employment Eligibility Verification, by (name redacted).

See CRS Report R40446, Electronic Employment Eligibility Verification, by (name redacted). In addition, certain

state and local laws require employers to use E-Verify; see CRS Report R41991, State and Local Restrictions on

Employing Unauthorized Aliens, by (name redacted).

144

Federal agencies and departments and federal contractors would be required under §3101(a) to participate in the

EVS immediately or within 90 days of the date of enactment; and employers participating in E-Verify before the bill’s

date of enactment would be required under §3101(e) to participate in the new EVS to the same extent and in the same

manner as in E-Verify. Other employers would be required under §3101(a) to participate in the EVS within one to five

years after implementing regulations for the section are published, beginning with critical infrastructure employers,

followed, in turn, by large employers, smaller employers, agricultural employers, and tribal government employers.

145

Such employers would thus be presumed to have violated INA §274A(a)(1)(A).

146

DHS could require certain employers to participate in the EVS to protect critical infrastructure, and such employers

would be permitted, and could be required, to re-verify the eligibility of workers hired prior to the employer’s use of

the EVS. Employers determined to have engaged in a pattern or practice of unlawful employment also could be

required to use the EVS to re-verify current employees.

147

The DHS Secretary could extend the 10-day deadline for cause.

148

See for example, U.S. Congress, House committee on the Judiciary, Subcommittee on Immigration and Border

Security, H.R. 1772: The “Legal Workforce Act,” 113th Cong., 1st sess., May 16, 2013.

149

Ibid.

143

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with several states and localities passing laws to combat the employment of unauthorized

workers, business groups have pushed for uniform national standards for employment

verification.150

S. 744 includes several provisions apparently designed to address these concerns. With respect to

uniform standards, the bill would expressly preempt state and local measures that include fines or

“penalty structures” related to the hiring, continued employment, or status verification for

employment eligibility purposes of unauthorized aliens.151 Section 3101 describes conditions

under which the DHS Secretary or an administrative law judge may mitigate certain penalties,

and includes more detailed provisions than in current law for challenging penalty claims. The

section also would broaden existing language describing an employer’s good-faith compliance

defense against prosecution for violations of these provisions, and would protect employers from

liability for actions taken in good faith based on the EVS.

Under S. 744, DHS would be required to make arrangements to enable employers or employees

who are not otherwise able to access the EVS to use electronic and telephonic formats, federal or

public facilities, or other locations to utilize the system. Section 3101 of S. 744 also would

require reports by DHS and GAO on unique challenges of implementing the EVS in the

agricultural industry,152 on adverse impacts on employers associated with EVS implementation,153

and on the effects of new documentary requirements on different categories of work-authorized

workers and employers.154 In addition, a new Office of the Small Business and Employee

Advocate would be created.155 The office would be charged with assisting small businesses and

individuals to comply with the law, and also to abate certain penalties.

Worker Protections

Along with adding employer sanctions provisions, the 1986 IRCA included provisions to prohibit

employment discrimination (other than against unauthorized workers) based on national origin or

citizenship status.156 The DOJ Office of Special Counsel for Immigration-Related Unfair

Employment Practices was created to respond to the concern that some employers would

discriminate against foreign-looking or foreign-sounding individuals to avoid possibly being

penalized under INA Section 274A. E-Verify was intended, in part, to combat such

discrimination, but evaluations of E-Verify have produced ambiguous findings about its effects.157

Section 3101 of S. 744 would require that the DHS Secretary design the EVS to allow for

auditing to detect possible cases of this type of employment discrimination and other adverse

150

Ibid.

States and localities still would be permitted to exercise their authority over business licensing and “similar laws” as

a penalty for failure to use the EVS.

152

S. 744 §3101(b); DHS would be required to consult with the Department of Agriculture on this report.

153

S. 744 §3101(c).

154

S. 744 §3101(d). The GAO report in this section also concerns the potential for discriminatory effects of the EVS on

certain lawful workers; also see in this report “Worker Protections.”

155

S. 744 §3107.

156

INA §274B(a).

157

Westat, Findings of the E-Verify Program Evaluation, December 2009; for a fuller discussion see CRS Report

R40446, Electronic Employment Eligibility Verification, by (name redacted).

151

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actions, and to allow workers to check their own verification case histories, to verify their own

eligibility through the system, and to temporarily lock their own or their children’s Social

Security numbers. DHS would develop procedures to notify workers directly when their records

are queried and when they receive a further action notice, nonconfirmation, or confirmation. DHS

also would conduct regular civil rights and civil liberties assessments of the EVS; and the DHS

Inspector General would conduct annual audits of EVS accuracy rates. Section 3101 also outlines

detailed provisions for administrative and judicial review of final nonconfirmations of a worker’s

eligibility, and would allow an ALJ, as part of the administrative review process, to uphold or

reverse an EVS determination and to order lost wages and other appropriate remedies in cases of

erroneous nonconfirmations.158

In addition to the worker protections in the EVS, S. 744 includes additional provisions apparently

designed to prevent discrimination or other adverse outcomes during the verification process. In

cases of labor disputes, all rights and remedies provided under federal, state, or local law relating

to workplace rights, including back pay, would be available to an employee despite the

employee’s status as an unauthorized alien.159 And reinstatement would be available to

individuals who lose employment authorized status due to unlawful acts of an employer.160 The

bill also would make certain prohibited uses of the EVS unfair immigration-related employment

practices, and therefore subject to civil penalties through the DOJ Office of Special Counsel

(OSC).161 And it would the OSC’s jurisdiction to cover certain small employers now exempt from

the section. Section 3105 also would require the Equal Employment Opportunity Commission to

refer all allegations of immigration-related unfair employment practices to the DOJ Special

Counsel, and would more than double the monetary penalties for violations of worker rights

under these provisions. The section also would authorize $120 million in FY2014-FY2016 to

publicize these worker protections.

As noted elsewhere, section 3107 would create a new Office of the Small Business and Employee

Advocate (see “Business Protections”). The office would be charged with assisting individuals

and small businesses with complying with employment verification requirements, including by

helping individuals correct erroneous further action notices and nonconfirmations.162

S. 744 includes additional provisions to protect certain foreign workers. Section 3201 would

expand eligibility for the U visa to cover a wider class of alien crime victims than under current

law, as well as aliens who have been or may be helpful in a wider range of criminal

investigations. The visa also would be expanded to include as new “covered violations,” serious

workplace abuse, exploitation, retaliation, or violations of whistleblower protections. DHS would

be required to stay the removal of certain aliens arrested or detained in the course of worksite

enforcement activities, and to notify appropriate law enforcement agencies with jurisdiction over

the violations. The section also amends other provisions of the INA to protect victims of “serious

158

S. 744 §3101(a).

160

S. 744 §3101(a).

161

S. 744 §3105(a). Prohibited practices would include discharging individuals for whom further action notices or

nonconfirmations are received prior to the completion of the appeals process, use of the system for unauthorized

purposes, use of the system to re-verify the eligibility of current employees (with certain exceptions), and unauthorized

selective use of the system. Such practices are prohibited under USCIS’ E-Verify rules, but current law does not

provide for penalties against employers who violate these rules.

162

S. 744 §3107.

159

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violations” of labor and employment law. Certain penalties collected from employers who hire or

employ unauthorized workers would be deposited in the CIR Trust Fund and made available to

DHS and DOJ to educate employers and workers about the EVS.163 The bill also would direct the

U.S. Sentencing Commission to provide enhanced sentencing guidelines for persons convicted of

certain employment-related offenses,164 and would generally preclude the disclosure of

information provided by aliens who are victims of certain crimes.165

Legalization of Unauthorized Aliens166

How to address the unauthorized alien population in the United States is a key and controversial

issue in comprehensive immigration reform. There is a fundamental split between those who want

to grant legal status to unauthorized aliens in the United States and those who want unauthorized

aliens to leave the country. Among those who support legalization for at least some portion of the

unauthorized population, there also may be disagreement about how to treat different segments of

the unauthorized population as part of a legalization process.167 S. 744 proposes to establish a

general legalization program for unauthorized aliens in the United States (see “Registered

Provisional Immigrants (RPIs)”), with special pathways for aliens who entered the country as

children (See “DREAM Act”) and for agricultural workers (see “Agricultural Worker

Legalization”). As noted elsewhere, the implementation of certain enforcement provisions under

Section 3 of the bill serve as pre-conditions for the bill’s legalization provision (see “Triggers for

Legalization and Adjustment to LPR Status”). Interim final regulations to implement all of the

legalization provisions discussed in this section would have to be issued no later than one year

after the enactment of S. 744 and would take effect immediately upon publication.168

Registered Provisional Immigrants (RPIs)

Under current law, there are limited avenues for unauthorized aliens in the United States to

become lawful permanent residents.169 Sections 2101, 2102 and 2103 of S. 744 would establish a

new multi-step, multi-year process that would enable eligible unauthorized aliens to transition

into a provisional legal status and ultimately to lawful permanent residence.

S. 744 Section 2101 would add a new section (245B) to the INA, allowing adjustment to a newly

created “registered provisional immigrant (RPI)” status. The Secretary of DHS would be

authorized to grant RPI status to a foreign national who meets the specified eligibility

requirements, submits an application in the specified period, and pays a fee and a penalty, if

applicable. The RPI eligibility requirements state that the alien must be physically present in the

163

S. 744 §3202.

S. 744 §3203.

165

S. 744 §3204.

166

CRS Specialist in Immigration Policy (name redacted), CRS Legislative Attorney (name redacted), and CRS

Legislative Attorney (name redacted) contributed to this section of the report.

167

See CRS Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by

(name redacted).

168

S. 744 §2110.

169

See CRS Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by

(name redacted).

164

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United States on the date of submitting the RPI application, must have been physically present in

the United States on or before December 31, 2011, and must have maintained continuous physical

presence in the United States from December 31, 2011, until the date the alien is granted RPI

status. Dependent spouses and children could be classified as RPI dependents if they were

physically present in the United States on or before December 31, 2012, have maintained

continuous physical presence in the United States from that date until the date the principal alien

is granted RPI status, and meet the other RPI eligibility requirements.

Under S. 744, a foreign national would be ineligible for RPI status if he or she has a conviction

for specified criminal offenses or for unlawful voting; if the Secretary of DHS knows or has

reasonable grounds to believe that the alien has engaged, or is likely to engage, in terrorist

activity; or if the alien is inadmissible under certain provisions of the INA. Aliens with LPR,

refugee, asylum, or (with specified exceptions) legal nonimmigrant status on the date S. 744 was

introduced also would be ineligible. Section 2101 of S. 744 would further require that aliens

satisfy any applicable federal tax liability170 prior to filing an RPI application, and that aliens

submit biometric and biographic data and clear national security and law enforcement

background checks as part of the application process. An RPI applicant also may be subject to

additional security screening at the discretion of the DHS Secretary.171 The RPI application period

would run for one year beginning on the date a final rule is published; the Secretary could extend

the application period for an additional 18 months.

Aliens seeking RPI status under S. 744 would be required to pay both a processing fee and a

penalty. Aliens age 16 and older would be charged a processing fee in an amount set by the DHS

Secretary that is sufficient to cover the full costs of processing applications. Aliens 21 and older

(who are not covered by DREAM Act provisions; see “DREAM Act”) would be required to pay a

penalty of $1,000, which could be paid in installments. The processing fees would be deposited

into the existing Immigration Examinations Fee Account and the penalties would be deposited

into the new CIR Trust Fund (see “Comprehensive Immigration Reform Funds”).

Under S. 744, an alien who is apprehended before or during the RPI application period and

appears to be eligible for RPI status would be given an opportunity to file an application and

could not be removed until a final determination on the application is made. Similarly, in the case

of an alien in removal proceedings during the same time frame who appears to be eligible for RPI

status, S. 744 would provide for suspension of the removal proceedings to give the alien a

reasonable opportunity to apply for RPI status.

Aliens outside the United States who departed the country while subject to an order of exclusion,

deportation, removal, or voluntary departure, and such aliens who reentered illegally after

December 31, 2011, generally would not be eligible to file an application for RPI status under S.

744. The Secretary could waive this provision if the alien is the spouse or child of a U.S. citizen

or LPR or the parent of a U.S. citizen or LPR child, or if the alien meets certain requirements

under the DREAM Act provisions.

170

As used here, applicable federal tax liability means all federal income taxes assessed in accordance with section

6203 of the Internal Revenue Code since the date on which the applicant was authorized to work in the United States in

RPI status.

171

This provision was added to §2101 during markup by the Senate Judiciary Committee and only applies to RPIs.

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While an alien’s RPI application is pending, the alien could receive advance parole172 in urgent

circumstances, could not be detained or removed unless the Secretary of DHS determines the

alien is no longer eligible for RPI status, would not be considered unlawfully present, and would

not be considered to be an unauthorized alien for employment purposes. In general, an employer

who knows that an alien is or will be an applicant for RPI status would be permitted to employ

the alien pending adjudication of the alien’s RPI application.

A foreign national granted RPI status generally would be considered to have been admitted and

lawfully present in the United States as of the application filing date, and would be permitted to

travel in and out of the United States. The DHS Secretary would issue RPIs a machine-readable

and tamper-resistant identity document with a digitized photo. The Commissioner of Social

Security, in coordination with the DHS Secretary, would be required to implement a system to

assign Social Security numbers and cards to each RPI. RPIs would be ineligible for federal

means-tested public benefits (see “Access to Federal Public Benefits”).

Section 2107 would specify that those who receive RPI status would not receive credit towards

insured status or a benefit for Social Security coverage earned between January 1, 2004 and

December 31, 2013. It would also specify that no quarter of coverage could be credited if it was

earned by a person present under an expired visa, unless the person was authorized to work

during that period. These limitations would not apply to anyone issued a Social Security Number

(SSN) prior to January 1, 2004. S. 744 would allow persons who are unable to obtain

documentation of work authorization to attest to such authorization but would criminally penalize

a person for making a false attestation.

Under S. 744, the initial period of RPI status would be six years. This initial period could be

extended for one or more additional periods of six years if the alien remains eligible for RPI

status and meets specified requirements, including a continuous employment requirement. In

general, to satisfy this employment requirement, an alien either must establish that he or she was

regularly employed (allowing for periods of unemployment of up to 60 days) and is not likely to

become a public charge, or must demonstrate average income or resources above a specified level

throughout the RPI admission period. An alien also could satisfy the employment requirement by

full-time attendance at certain educational institutions or programs. The employment requirement

would not apply to RPI dependents and would be subject to other exceptions and waivers.

RPI Adjustment of Status to Lawful Permanent Residence

To enable RPIs to eventually become LPRs, S. 744 Section 2102 would add a new section (245C)

to the INA on RPI adjustment of status.173 Under INA Section 245C, RPIs would not be permitted

to adjust to LPR status until the Secretary of State certifies that immigrant visas have become

172

Advance parole is permission to reenter the United States after traveling abroad. It allows an otherwise inadmissible

individual to physically enter the United States due to compelling circumstances, though such entry does not constitute

legal admission into the country for purposes of immigration law.

173

The adjustment of status provisions for RPIs in INA §245C do not provide a complete adjustment of status process.

Instead, INA §245C describes certain qualifications and procedures for RPIs to adjust to LPR status. In order to

become an LPR, an RPI would have to adjust status under either the DREAM Act provisions (see in this report,

“DREAM Act”) or the provisions on merit-based track two permanent admissions in section 2302 of the bill (see in

this report, “Merit-Based Track Two”).

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available for all approved petitions that were filed under applicable sections of the INA before the

enactment of S. 744.174

For RPIs seeking to adjust to LPR status, the waivers of inadmissibility for aliens initially seeking

RPI status would continue to apply. In addition, to adjust to LPR status in accordance with INA

Section 245C, an alien would have to have remained eligible for RPI status, including by

satisfying the employment requirement, and would have to have been continuously physically

present in the United States during the period of admission as an RPI, as specified. RPIs adjusting

status in accordance with INA Section 245C also would be required to satisfy any applicable

federal tax liability175 and to register under the Military Selective Service Act if applicable, and

would be subject to renewed national security and law enforcement checks prior to adjustment.

Applicants 16 and older would be required to meet, or to be pursuing a course of study to meet,

the INA English language and civics requirements for naturalization, subject to exceptions and

waivers.

INA Section 245C would impose a second set of processing and penalty fees on RPIs who apply

to adjust to LPR status under its terms. Applicants would have to pay a penalty of $1,000, which

could be paid in installments. Processing fees would be deposited into the existing Immigration

Examinations Fee Account and penalties would be deposited into the CIR Trust Fund (see

“Comprehensive Immigration Reform Funds”).

RPIs who satisfy these requirements under INA Section 245C could adjust to LPR status under

the Merit-Based Track Two visa provisions pursuant to S. 744 Section 2302. These visas would

become available beginning in FY2024, as discussed elsewhere (see “Merit-Based Track Two”).

Those RPIs who also meet additional eligibility criteria set forth in the DREAM Act provisions

(in S. 744 §2103) may have the option of adjusting status more quickly under a new INA Section

245D (see next section, “DREAM Act”). RPIs only could adjust status under the Merit-Based

Track Two provisions or the DREAM Act provisions.

S. 744 Section 2102 also would amend current law to provide for naturalization176 of certain

LPRs who were lawfully present in the United States and eligible for work authorization for at

least 10 years prior to becoming an LPR—language apparently covering RPIs following their

adjustment to LPR status under the Merit-Based Track Two provisions (see “Merit-Based Track

Two”). These aliens would be able to apply for naturalization after three years in LPR status,

rather than five years as is usually the case for LPRs currently seeking to naturalize.

DREAM Act

S. 744 would add a new section (245D) to the INA on adjustment of status for certain RPIs who

entered the United States as children and satisfy a set of requirements. Such aliens previously

have been the subject of similar stand-alone legislation known as the Development, Relief, and

174

This “back-of-the-line” language seems to be unclear about the treatment of pending petitions for immigrant visas

filed before the bill’s date of enactment on behalf of aliens who subsequently become RPIs.

175

As used here, applicable federal tax liability means all federal income taxes assessed in accordance with section

6203 of the Internal Revenue Code.

176

Naturalization is the process through which an LPR becomes a U.S. citizen.

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Education for Alien Minors (DREAM) Act.177 Under S. 744, the DHS Secretary could adjust the

status of an RPI to that of an LPR if the alien demonstrates that he or she

•

has been an RPI for at least five years;

•

was under age 16 at the time of initial entry into the United States;

•

has earned a high school diploma, general education development (GED)

certificate, or the equivalent in the United States; and

•

has earned a degree from an institution of higher education or has completed at

least two years in good standing in a bachelor’s or higher degree program in the

United States, or has served in the uniformed services for at least four years.178

Such aliens would be required to provide DHS with a list of secondary schools attended in the

United States; and they would be subject to English language and civics requirements and

national security and law enforcement screening. Aliens adjusting under INA Section 245D would

be exempt from the $1,000 penalty charged to RPIs adjusting status under INA Section 245C, and

would face a somewhat different set of application requirements than other RPIs.

For purposes of naturalization, an alien granted LPR status under INASection 245D would be

considered to have been lawfully admitted for permanent residence and to have been in the

United States as an LPR (and therefore accumulating time toward the residency requirement for

naturalization)179 during the period the alien was an RPI. With some exceptions, however, an alien

could not apply for naturalization while in RPI status.

S. 744 would amend the INA to exempt aliens who adjust to LPR status under INA Section 245C

(for RPIs) or INA Section 245D (the DREAM Act) from the worldwide numerical limits on

permanent admissions.180 In addition, S. 744 would repeal Section 505 of Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which places certain restrictions on

state provision of postsecondary educational benefits to unauthorized aliens.181

The bill would further specify that RPIs who initially entered the United States before age 16 and

aliens granted blue card status (see “Agricultural Worker Legalization”)) would only be eligible

for certain types of federal student financial assistance under Title IV of the Higher Education Act

(HEA) of 1965.182 These aliens would be eligible for student loans, federal work-study programs,

and services.

177

For a discussion of DREAM Act legislation, see CRS Report RL33863, Unauthorized Alien Students: Issues and

“DREAM Act” Legislation, by (name redacted).

178

S. 744 §2103.

179

INA §316.

180

S. 744 §2103.

181

Ibid. Language to repeal this 1996 provision has been regularly included in DREAM Act bills; see CRS Report

RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by (name redacted).

182

P.L. 89-329; 20 U.S.C. §§1070 et seq.

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

Agricultural Worker Legalization

S. 744 would establish a new legal temporary status, termed “blue card” status, for agricultural

workers who satisfy specified work and other requirements.183 Broadly similar provisions have

been included in measures introduced regularly in recent Congresses, including in bills known as

the Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS Act).

S. 744 provides that the Secretary of DHS could grant blue card status to an alien who

•

either performed not fewer than 575 hours or 100 work days of agricultural

employment in the United States during the two-year period ending on December

31, 2012, or

•

is the spouse or child of such an alien, was physically present in the United States

on or before December 31, 2012, and has maintained continuous presence in the

United States from that date until the date on which the alien is granted blue card

status.184

The application period for blue card status would run for one year beginning on the date a final

rule is published, and the DHS Secretary could extend the period for an additional 18 months.

The Secretary of DHS, in consultation with the Secretary of Agriculture, would have to issue final

regulations to implement these provisions no later than one year after the enactment of S. 744.185

No alien would be permitted to remain in blue card status after the date that is eight years after

regulations are published.186 The Secretary could only accept applications from aliens within the

United States, except for aliens who have participated in the H-2A visa program,187 who could

apply from abroad.

Apart from their work experience, blue card applicants generally would be subject to similar

eligibility restrictions and waivers of inadmissibility as RPIs (see “Registered Provisional

Immigrants (RPIs)”), except that legal nonimmigrants in H-2A status would be eligible for blue

cards. Blue card applicants also would be subject to national security and law enforcement

background checks. They would enjoy similar protections as RPIs from being removed during the

application period, and would similarly receive an identity document, work authorization, and

permission to travel into and out of the United States. Applicants for blue card status also would

be subject to processing and penalty fees, though penalties, at $100, would be lower than for RPI

applicants. Processing fees would be deposited into the Immigration Examinations Fee Account,

and the penalties would be deposited into the CIR Trust Fund.

Each employer of an alien with blue card status would be required to annually provide a record of

the alien’s employment to the alien and the Secretary of Agriculture. The Secretary of DHS would

183

S. 744 §2211.

Ibid.

185

Ibid.

186

S. 744 §2211 does not separately specify the length of the period of blue card admission.

187

The H-2A 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; see CRS

Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by (name re

dacted).

184

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Comprehensive Immigration Reform in the 113th Congress: Senate-Passed S. 744

be allowed to adjust an alien with blue card status to RPI status if the alien is unable to fulfill the

agricultural work requirement for adjustment from blue card status to LPR status, as specified.

Adjustment of Status to Lawful Permanent Residence

S. 744 would add a new section (245F) to the INA to provide for the adjustment of status of aliens

with blue card status to LPR status. The DHS Secretary, in consultation with the Secretary of

Agriculture, would be required to issue final regulations implementing these provisions within

one year of the enactment of S. 744.188 Under this new INA section, the DHS Secretary, not

earlier than five years after the enactment of S. 744, would be required to adjust the status of

certain aliens with blue card status if the alien has performed either: not less than 100 work days

of agricultural employment annually for five years in the eight-year period beginning on the date

of enactment, or not less than 150 work days of agricultural employment annually for three years

in the five-year period beginning on the date of enactment.189

The Secretary of DHS could not adjust the status of an alien with blue card status if the alien is no

longer eligible for blue card status or has failed to meet the agricultural work requirement. As

with RPIs, grounds of inadmissibility waived during the initial application period would continue

to apply for purposes of adjustment of status; and aliens adjusting from blue card status would be

required to satisfy any applicable federal tax liability,190 and to pay a processing fee and a $400

penalty. S. 744 also would establish a criminal penalty for false statements in applications for

blue card status or in applications for adjustment from blue card status to LPR status.191

The Secretary of DHS would grant LPR status to the spouse or child of an alien whose status was

adjusted from blue card status to LPR status if the spouse or child applies for such status, the

principal alien includes the spouse or child in an adjustment of status application, and the spouse

or child is not ineligible for LPR status under the ineligibility provisions for obtaining RPI status

(see “Registered Provisional Immigrants (RPIs)”). An alien granted blue card status would only

be permitted to adjust to LPR status under this section, the RPI adjustment of status provisions,192

or the merit-based track two permanent admissions provisions (see “Merit-Based Track Two”). S.

744 further provides that worldwide and per-country immigration limits would not apply to

adjustments of status from blue card status to LPR status.193

188

S. 744 §2211.

In certain specified circumstances, the DHS Secretary could credit an alien with up to 12 additional months of

agricultural employment to meet this requirement.

190

As used here, applicable federal tax liability means all federal income taxes assessed in accordance with section

6203 of the Internal Revenue Code since the date on which the applicant was authorized to work in the United States in

blue card status.

191

S. 744 §2212.

192

INA §245C, as added by S. 744 §2102.

193

S. 744 §2212. Worldwide and per-country immigration limits are described in INA §§201 and 202; also see in this

report “Immigrant Visas.” A conforming amendment (S. 744 §2212(b)) would amend the INA to exempt from the

worldwide numerical limits on permanent admissions aliens adjusted to LPR status under INA §245F.

189

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Immigrant Visas194

Immigrants are persons admitted as legal permanent residents (LPRs) of the United States. Under

current law, permanent admissions are subject to a complex set of numerical limits and preference

categories that give priority for admission on the basis of family relationships, an offer or

employment in the United States, and geographic diversity of sending countries. These limits

include an annual flexible worldwide cap of 675,000 immigrants, plus refugees and asylees. The

INA specifies that each year, countries are held to a numerical limit of 7% of the worldwide level

of U.S. immigrant admissions, known as per-country limits. The pool of people who are eligible

to immigrate to the United States as LPRs each year typically exceeds the worldwide level set by

U.S. immigration law, and as a consequence millions of prospective LPRs with approved

petitions are waiting to receive a numerically limited visa (commonly referred to as the “backlog”

or “queue”). The immediate relatives of U.S. citizens (i.e., their spouses and unmarried minor

children, and the parents of adult U.S. citizens) are admitted outside of the numerical limits and

are the flexible component of the worldwide cap.

S. 744 would revise the numerical limits on legal permanent immigration and would alter the

system that allocates the visas. It would repeal the Diversity Visa Program195 beginning in

FY2015, but enable those who received diversity visas for FY2013 and FY2014 to be eligible to

obtain LPR status. Two new “merit-based” categories would be created (see “Merit-Based Track

One” and “Merit-Based Track Two”), one of which would be designed, in part, to replace the

diversity visa. The basic worldwide limits on family- and employment-based preference (i.e.,

numerically-capped) visas would be unchanged at 480,000 and 140,000, respectively; but the bill

would allow the allocation of unused roll-over and recaptured visas from previous years,196 would

eliminate the per-country ceiling for employment-based preferences, and would increase the percountry ceiling for family-based preferences from 7% to 15%,197 in addition to other changes to

these systems (see “Family-Based Immigration” and Employment-based Immigration”). S. 744

also would modify rules for investor visas (see “Investor Visas”), and include provisions to

promote immigrant integration (see “Immigrant Integration”).

In addition, S. 744 would make numerous other revisions to LPR immigration, including new

procedures for how DHS and DOS manage visa backlogs, new provisions for fiancés and

fiancées of LPRs, changes to the petition process when the sponsoring relative dies, and changes

to certain country-specific and other special immigrant visas.198

194

CRS Analyst in Immigration Policy William Kandel, CRS Legislative Attorney (name redacted), and CRS

Specialist in Immigration Policy (name redacted)

contributed to this section of the report.

195

The Diversity Immigrant Visa Program allocates visas to natives of countries from which immigrant admissions

were lower than a total of 50,000 over the preceding five years; see CRS Report R41747, Diversity Immigrant Visa

Lottery Issues, by (name redacted).

196

S. 744 §2304.

197

S. 744 §2306. For a fuller discussion, see CRS Report R42866, Permanent Legal Immigration to the United States:

Policy Overview, by (name redacted).

198

See generally, S. 744 §§2305, 2310-2322, 4804.

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Point Merit-Based Systems

S. 744 would include two different “merit-based” systems: one designed as a point system to

admit aliens based on their employment skills, and the other designed to expedite the admission

of certain people in the existing visa backlog.

Merit-Based Track One

The proposed Merit-Based Track One visa would replace the diversity visa and would admit

120,000 to 250,000 LPRs annually, with the annual flow based upon a sliding formula that would

depend on demand for the visa in the previous year. If the average annual unemployment rate in

the previous fiscal year was greater than 8.5%, the level would not be increased. Unused visas

from past years would be recaptured.199

During each of the years FY2015 through FY2017, Track One visas would be made available to

foreign nationals who meet existing criteria for the third preference professional, skilled shortage,

and unskilled shortage workers. In FY2018 and subsequent years, visas would be allocated as

follows:

•

50% would be allocated to Tier 1 based upon education (college plus), employment

experience, high-demand occupation, entrepreneurship, younger workers, English

language, familial relationship to a U.S. citizen, country of origin diversity, and civic

engagement.

•

50% would be allocated to Tier two based upon employment in high-demand occupations

that require little to medium preparation (high school diploma or GED) and caregivers,

younger workers, English language, familial relationship to a U.S. citizen, country of

origin diversity, and civic engagement.

Foreign nationals who have pending LPR petitions or who acquire RPI status would not be

eligible for Track One visas. GAO would be required to evaluate how this point system functions

and report to Congress not later than seven years after enactment.

Merit-Based Track Two

S. 744 would create a second Merit System (Track Two) that has four components.200 The first

would consist of employment preference petitioners who filed before enactment of S. 744 and

whose petitions were pending (i.e., were in the visa queue backlog) for at least five years. The

second would consist of family preference petitioners who filed before enactment and whose

petitions were pending (i.e., were in the visa queue backlog) for at least five years. The third

would consist of persons filing current third or fourth- preference family petitioners during the

first 18 months after the date of enactment (i.e., before the bill’s final changes to the family

preference categories become effective; see “Family-based Immigration”) and whose visas are

not issued during the first five years after the bill’s date of enactment. The fourth would consist of

199

200

S. 744 §2301.

S. 744 §2302.

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long-term workers (other than W visa holders) who worked 10 years in a legally present status

with employment authorization, a category apparently designed to describe RPIs.

Under S. 744, the first two components of the Track Two merit system would function as current

backlog reduction, as visas would be issued to 1/7 of the petitioners in these two categories,

ordered by filing date, during each year from FY2015 through FY2021, regardless of country of

origin or other numerical limits. During FY2022-FY2023, visas would be issued to the current

family third and fourth preference petitioners filing after the date of enactment, with one half of

such filers receiving visas in each of these years (ordered by filing date). These visas would thus

accommodate certain family petitioners who no longer would be eligible following the

implementation of reforms to the family preference system in S. 744 (see “Family-Based

Immigration”).

Ten years after enactment of S. 744 (i.e., beginning in FY2024), the Track Two merit system

would become a pathway for RPIs adjusting to LPR status. Beginning in FY2029, aliens would

be required to have been lawfully present in an “employment authorized status” for 20 years prior

to filing for Track Two merit adjustment. The bill expressly waives the unlawful presence ground

of inadmissibility of Track Two adjustments.201

Family-Based Immigration

Under current law, to qualify as a family-based LPR, a foreign national must be a spouse or minor

child of a U.S. citizen; a parent, adult child, or sibling of an adult U.S. citizen; or a spouse or

unmarried child of a lawful permanent resident. At least 226,000 and no more than 480,000

family preference LPRs are admitted each year within four different preference categories.

Immediate relatives of U.S. citizens may be eligible for non-preference (i.e., uncapped) visas.

Section 2305 of S. 744 would revise the family-based system in two main ways. First, it would

reclassify spouses and minor unmarried children of LPRs as immediate relatives, making them

exempt from family preference numerical limits. Second, S. 744 would reallocate family

preference visas in two stages. For the first 18 months after enactment, family preference visas

would be allocated as follows: (1) adult unmarried children of U.S. citizens would be capped at

20% of the worldwide limit for family-preference immigrants; (2) adult unmarried children of

LPRs would be capped at 20% of the worldwide limit for family-preference immigrants plus

unused visas from the first category; (3) adult married children of U.S. citizens would be capped

at 20% of the worldwide limit for family-preference immigrants, plus unused visas from the first

two categories; and (4) siblings of U.S. citizens would be capped at 40% of the worldwide limit

for family-preference immigrants, plus unused visas from the first three categories.

Beginning eighteen months after enactment, S. 744 would eliminate the current family fourth

preference category for adult siblings of U.S. citizens,202 and allocate the family preference visas

as follows: U.S. citizens’ unmarried sons or daughters would not exceed 35% of worldwide level;

U.S. citizens’ married sons or daughters 31 years of age or younger (at the time of filing) would

201

202

S. 744 §2302.

INA §203(a)(4).

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not exceed 25% of the worldwide level;203 and LPRs’ unmarried sons and daughters would not

exceed 40% of the worldwide level.204

In addition, S. 744 would make nonimmigrant V visas available to all persons with approved

petitions pending within a family preference category. Thus, U.S. citizens’ unmarried sons and

daughters and LPRs’ unmarried sons and daughters, as well as persons who are U.S. citizens’

married sons and daughters under age 31, could reside in the United States until their visa date

becomes current. They would also be granted work authorization during that period. U.S. citizens’

siblings and adult sons and daughters age 31 or older with pending family preference visas could

reside in the United States for 60 days per year, but would not be authorized to work.

Employment-Based Immigration

The current employment-based LPR visa system consists of five numerically limited preference

categories. To qualify within one of these categories, a foreign national must be an employee

whom a U.S. employer has received approval from the Department of Labor to hire; a person of

extraordinary or exceptional ability in specified areas; an investor who will start a business that

creates at least 10 new jobs; or someone who meets the narrow definition of the “special

immigrant” category.205 The INA currently allocates 140,000 admissions annually for

employment-preference immigrants.

S. 744 would make substantial changes to the employment-based system. Foremost, the bill

would exempt from the numerical limits on employment-based LPRs the following:

•

derivatives (i.e., accompanying immediate family members) of employmentbased LPRs;

•

persons of extraordinary ability in the arts, sciences, education, business, or

athletics; outstanding professors and researchers; and certain multinational

executives and managers, who are currently first preference employment-based;

•

persons who earned a doctorate degree from an institution of higher education in

the United States or the foreign equivalent; persons who earned a graduate degree

in STEM fields from a U.S. institution within the five-year period before the

petition filing date and have a U.S. offer of employment in the related field; and

•

foreign national physicians who have completed foreign residence requirements

under INA Section 212(e).206

The bill would make the first preference employment-based category exempt from numerical

limits, and amend that category to include aliens who are members of the professions holding

advanced degrees who have a U.S. job offer (subject to a “national interest” waiver), including

alien physicians accepted to a U.S. residency or fellowship program, or prospective employees of

203

Under INA §203(a)(3), the current family third preference category for married sons and daughters does not include

an age limit.

204

S. 744 §2307.

205

Special immigrants include ministers of religion, religious workers other than ministers, and certain employees of

the U.S. government abroad.

206

S. 744 §2307.

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national security facilities. The second preference category would consist of advanced degree

holders and generally would be allocated 40% of 140,000; but aliens with advanced degree in

science, technology, engineering, or math (STEM) fields would be exempted from numerical

limits if they have a job offer and meet other requirements. Employers petitioning for such aliens

also would be exempted from labor certification required under INA Section 212(a)(5).207

S. 744 also would change certain procedures for admitting second preference employment-based

immigrants to facilitate physician immigration (also see “Conrad State 30 Program”). Under the

bill, certain nonimmigrant alien physicians would be exempt from numerical limits if they adjust

to LPR status as EB-2 immigrants.208 And EB-2 labor certification requirements would be waived

for certain alien physicians.209

S. 744 also would amend the third preference employment-based category (i.e., skilled workers

with at least two years training, professionals with baccalaureate degrees, and unskilled workers

in occupations in which U.S. workers are in short supply) from 28.6 % to 40% of the worldwide

level and would repeal the cap of 10,000 on unskilled workers within that 40%. It would also

amend the INA to increase visa allocation to fourth preference employment-based special

immigrants and fifth preference employment-based employment creation/investors from 7.1%

each to 10% each. The bill would also facilitate the admission and naturalization of aliens who are

current or potential employees of certain federal national security facilities.210

Investor Visas

There are currently one category of immigrant investor visas (admitted as conditional LPRs) and

two categories of nonimmigrant investor visas.211 These investor visas are intended to benefit the

U.S. economy by providing an influx of foreign capital and stimulating job creation. S. 744

would make changes to these existing visas and also create new immigrant and nonimmigrant

investor categories (with respect to the latter, see “New Nonimmigrant Investor Visas”).

Changes to the EB-5 Category

Under current law, the visa category used for immigrant investors is the fifth preference

employment-based (EB-5) visa category, which allows for up to 10,000 admissions annually and

generally requires a minimum $1 million investment.212 The minimum is reduced to $500,000 for

aliens who invest in certain targeted investment programs (known as regional centers) through the

Regional Center Pilot Program.213 The pilot program is set to expire at the end of FY2015.

207

S. 744 §2307.

S. 744 §2307(b)(1).

209

S. 744 §2402.

210

S. 744 §2307.

211

For a fuller discussion, see CRS Report RL33844, Foreign Investor Visas: Policies and Issues, by (name redacted).

212

Only $500,000 is required if investing in an area of high unemployment or a rural area (i.e., a “Targeted

Employment Area”).

213

A regional center is a private enterprise/corporation or a regional governmental agency with an investment program

within a defined geographic area.

208

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S. 744 would exempt spouses and children (derivatives) of EB-5 petitioners from the numerical

limits. It would also redefine “Target Employment Area” to include areas with high poverty, as

with other employment-based categories. Section 2308 would include communities adversely

affected by a recommendation by the Defense Base Closure and Realignment Commission as

targeted employment areas for purposes of satisfying requirements for fifth preference

employment creation/investors. In addition, beginning on January 1, 2016, the bill would begin

automatically adjusting the required investment amount by the Consumer Price Index (CPI-U)

every five years.214 S. 744 also would specify the criteria for removing or terminating an alien’s

conditional LPR status and would permit the Secretary of DHS to delegate this authority to the

Secretary of Commerce.215

S. 744 would permanently authorize the Regional Center Pilot program and would make

numerous changes to the program. Currently, almost all the requirements related to the Regional

Center program are in regulation, not in statute. The bill would establish statutory requirements

for those applying for a regional center designation, and specify the type of information that

should be contained in a regional center proposal. It would also create a mechanism for a

commercial enterprise affiliated with a regional center to be preapproved. The Secretary of DHS

would also be authorized to establish a premium processing option for aliens investing in

preapproved commercial enterprises. The bill would also create a series of sanctions for regional

centers that violate newly created financial reporting requirements.216

New EB-6 Investor Visas

Subtitle H of Title IV of S. 744 would create a new EB-6 immigrant visa category designed to

permit the entry of up to 10,000 immigrant entrepreneurs per year. (The bill also would create a

new nonimmigrant entrepreneur visa; see “New Nonimmigrant Investor Visas”). To qualify for an

EB-6 visa, the alien would have to be a qualified entrepreneur;217 to have maintained a valid

nonimmigrant status during the past two years; and to have had significant ownership in a

business that created at least five jobs and either raised $500,000 from qualified investors or

generated not less than $750,000 in annual revenue. Broadly similar requirements would apply

for qualified entrepreneurs with advanced STEM degrees seeking to become EB-6 LPRs.218

The DHS Secretary would be required to promulgate regulations covering EB-6 (and

nonimmigrant investor visas) within 16 months, and to ensure that the visas are implemented in a

manner that protects national security and promotes economic growth, job creation, and

competitiveness. The minimum investments and other dollar amounts for EB-6 eligibility would

be adjusted every five years based on the CPI-U, in a manner similar to the EB-5 category.219

214

Automatic adjustments would not occur if the amount is adjusted by the Secretary of Commerce.

S. 744 §§4805-4806.

216

S. 744 §4404.

217

A qualified entrepreneur would be defined as an individual with significant ownership in a business entity who is

employed in a senior executive position and had a substantial role in founding or growth of such an entity.

218

S. 744 §4802.

219

S. 744 §4803.

215

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Immigrant Integration

S. 744 would define immigrant integration and rename the USCIS’s Office of Citizenship as the

Office of Citizenship and New Americans (OCNA). OCNA’s functions would include promoting

institutions and providing training and educational materials on aliens’ citizenship responsibilities

and leading such activities across federal agencies and with state and local entities.

The OCNA would also work with the Task Force on New Americans (TFNA), to be established

within 18 months of enactment. The Task Force would be charged with coordinating federal

program and policy responses to integration issues and advising and assisting the federal

government in carrying out the immigration integration policies and goals in the bill. Membership

would include the secretaries of most cabinet-level executive branch agencies. TFNA members

would liaison with their agencies to ensure agency participation in creating goals, developing

indicators, facilitating state and local participation, and collecting data. Eighteen months after

formation, the TFNA would provide recommendations on these issues and assist in developing

legislative and policy proposals to DHS and the Domestic Policy Council.220

The OCNA, working with a new nonprofit United States Citizenship Foundation, also would

administer a pair of grant programs: Initial Entry, Adjustment, and Citizenship Assistance

(IEACA) grants to provide direct assistance to aliens who apply for provisional legal status,

adjust to LPR status, or seek naturalization;221 and a Pilot Grant Program (PGP) to support state

and local government activities fostering immigrant integration.222 The two grant programs would

be authorized $100 million for the FY2014-FY2018 period and such sums as may be necessary

for subsequent years.223

With the express objective of reducing “barriers to naturalization,” S. 744 would waive the

English and history and civics naturalization requirements for persons who, on the date of

application, were unable to comply with such requirements because of physical or mental

disability, or were age 65+ with five years as an LPR. It would waive the English requirement for

persons above ages 50, 55, and 60, if they had 20, 15, and 10 years, respectively, as an LPR. It

would also waive the civics requirement for persons aged 60+ with 10 years as an LPR on a caseby-case basis. The bill would allow individuals to continue to use paper-based application forms

to petition for LPR status or U.S. citizenship until October 1, 2020.224

Citizenship of Adopted Children

As a result of an amendment approved on the Senate floor, the bill would ease requirements for

international adoptions and naturalization of international adoptees. The age for an adopted child

would be increased from under 16 years old to under 18 years old and only one parent from an

adopting couple, rather than the two together, would be required to have a pre-adoption visit with

a child adopted abroad. In order to be automatically naturalized under INA Section 320, a child

born abroad would only be required to be physically present after a lawful admission, rather than

220

S. 744 §§2511, 2521-2524.

S. 744 §§2531-2537.

222

S. 744 §§2538-2539.

223

S. 744 §2541.

224

S. 744 §§2551-2552.

221

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required to be residing in the United States as an LPR. Additionally, a person who no longer has

legal status or is physically present in the United States may be deemed to have satisfied the

requirements of INA Section 320 as amended by the bill if that person would have satisfied them

if they have been in effect when the person was originally lawfully admitted. The automatic

naturalization under INA Section 320 would apply to an adopted child regardless of when the

adoption was finalized and the naturalization provisions for children in INA Sections 320 and 322

would apply regardless of when requirements were satisfied.225

Naturalization Based on Military Service

The Senate also approved a floor amendment that would streamline military-service-based

naturalization for persons who have awards for active engagement or participation in combat by

deeming them to have satisfied most substantive requirements, including English and civics

knowledge, attachment to the principles of the U.S. Constitution, being well disposed to the good

order and happiness of the United States, good moral character, and honorable service and

discharge. Naturalization under this provision would still be subject to potential revocation for

discharge under other than honorable circumstances before serving honorably for an aggregate

period of five years.226

Nonimmigrant Visas

Nonimmigrants—such as tourists, foreign students, diplomats, temporary workers, cultural

exchange participants, or intracompany business personnel—are admitted for a specific purpose

and a temporary period of time.227 Nonimmigrants are required to leave the country when their

visas expire, though certain classes of nonimmigrants are “dual intent,” meaning they may adjust

to LPR status if they otherwise qualify. Current law describes 24 major nonimmigrant visa

categories, and over 70 specific types of nonimmigrant visas, which are often referred to by the

letter that denotes their section in the statute, such as H-2A agricultural workers, F-1 foreign

students, or J-1 cultural exchange visitors.

S. 744 would make extensive revisions to nonimmigrant categories for professional specialty

workers (see “H-1B Professional Specialty Workers”), intra-company transferees (see “L Visa

Intra-Company Transferees”), and other skilled workers (see “Other Skilled and Professional

Worker Visas”). The bill also would reform existing lower-skilled visa categories (see “Reforms

to the H-2B Program”) and establish a new “W” temporary worker category (see “New

Nonimmigrant Visas for Lower Skilled Workers”). Additional nonimmigrant provisions in S. 744

would be designed to promote tourism (see “Tourism Related Provisions”) and would make

changes to student and other nonimmigrant visas (see “Other Nonimmigrant Visa Changes”).

225

S. 744, §§2312, 2554.

S. 744, §2555.

227

For a fuller discussion of nonimmigrant visas, see CRS Report RL31381, U.S. Immigration Policy on Temporary

Admissions, by (name redacted).

226

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High-Skilled Workers228

H-1B Professional Specialty Workers

Current law makes H-1B visas available for “professional specialty workers,” an employment

category closely associated with science, technology, engineering, and mathematics (STEM)

fields, but not limited to them.229 H-1B visas are good for three years, renewable once; and they

are “dual intent,” meaning aliens on H-1B visas may seek LPR status without leaving the United

States. Current law generally limits annual H-1B admissions to 65,000, but most H-1B workers

are exempted from the limits because they are returning workers or they work for universities and

nonprofit research facilities that are exempt from the cap.230

Employers seeking to hire an H-1B worker must attest that the employer will pay the

nonimmigrant the greater of the actual wages paid to other employees in the same job or the

prevailing wages for that occupation; that working conditions for the nonimmigrant will not

adversely affect other workers; and that there is no applicable strike or lockout. The employer

must provide a copy of the labor attestation to representatives of the bargaining unit where

applicable, or must post the labor attestation in conspicuous locations at the work site.

Prospective H-1B nonimmigrants must demonstrate to USCIS that they have the requisite

education and work experience for the posted positions.231

Changes to Facilitate H-1B Recruitment

In recent years, the H-1B visa has been an important pathway for many foreign students seeking

employment in the United States after completing their degrees, and an important avenue for

many U.S. businesses seeking to recruit high-skilled foreign workers.232 Thus, despite the fact

that a majority of H-1B workers are exempted from annual limits, applications for new H-1B

workers have routinely exceeded such limits in recent years—in some years exceeding limits

during the first week or even on the first day that applications are excepted.233

S. 744 would seek to address perceived H-1B shortages by replacing the 65,000 per year cap on

new H-1B admissions with a flexible cap that would range from a floor of 115,000 to a ceiling of

180,000 annually, with a “market-based” mechanism to increase or decrease the cap based on

demand during the previous year (i.e., whether and how quickly the previous year’s limit was

reached).234 Up to 25,000 STEM advanced degree graduates would be exempted from the cap.235

228

CRS Legislative Attorney (name redacted) a

nd CRS Specialist in Immigration Policy (name redacted)

contributed to this section of the report.

229

For a fuller discussion of science, technology, engineering, and mathematics (STEM) fields, see CRS Report

R42642, Science, Technology, Engineering, and Mathematics (STEM) Education: A Primer, by (name redacted)

and (name redacted).

230

For a fuller discussion of H-1B visas, see CRS Report R42530, Immigration of Foreign Nationals with Science,

Technology, Engineering, and Mathematics (STEM) Degrees , by (name redacted).

231

Ibid.

232

See CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and

Mathematics (STEM) Degrees , by (name redacted).

233

Ibid.

234

S. 744 §4101(a).

235

S. 744 §4101(b).

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Spouses of H-1B workers would be permitted to work, thereby eliminating a potential barrier to

H-1B recruitment and also likely further increasing the number of skilled foreign workers

admitted (i.e., because many H-1B nonimmigrants have spouses who are also skilled workers).236

And the bill would ease the renewal of H-1B (and L visas; see “L Visa Intra-Company

Transferees”) by limiting the review of such renewals to material errors, substantive changes and

newly discovered information.237 In addition, H-1B workers would have a 60-day grace period

after loss of a job to seek additional employment without losing his or her visa status.238

Changes to Protect U.S. Workers

In addition to these concerns about whether employers have adequate access to H-1B workers,

some Members of Congress have raised questions about whether H-1B workers may have an

adverse effect on U.S. workers, including possibly by placing downward pressure on wages

and/or by discouraging U.S. workers from entering STEM fields.239 S. 744 would establish two

new fees apparently designed to address these concerns: a $1,000 fee for Labor Certification

Applications (LCAs) for EB-2 and EB-3 immigrants, with the fee designated to fund STEM

grants, scholarships, and training ;240 and a $1,250-$2,500 fee for H-1B and L visas, with the fee

designated to provide ongoing funding for the CIR Trust Fund.241

Subtitle B of Title IV of S. 744 also would seek to protect U.S. workers by modifying H-1B

application requirements and procedures for investigating H-1B complaints. The bill would

amend the H-1B labor certification process to revise wage requirements based on Department of

Labor (DOL) surveys,242 and would require employers to advertise for U.S. workers on a DOL

website.243 With some exceptions, the four-level wage structure for current H-1B workers would

be changed to a three-level wage structure.244

The subtitle would establish two new classes of H-1B employers: H-1B dependent employers,

defined as a function of the proportion of an employer’s workforce which consists of H-1B

workers; and H-1B skilled worker dependent employers, defined as a function of the proportion

of an employer’s workforce which consists of H-1B workers in highly skilled occupations. New

rules to prevent H-1B workers from being hired intentionally to displace U.S. workers would be

established, with different requirements for each type of employer. Employers would be required

to make good faith efforts to recruit U.S. workers prior to hiring H-1B workers, and H-1B skilled

worker dependent employers would be required to offer a position to any equally or better

qualified U.S. worker applying for a job otherwise to be filled by an H-1B worker. Certain H-1B

236

S. 744 §4102. Spouses of L workers would similarly be permitted to work.

S. 744 §4103(a).

238

S. 744 §4103(b).

239

See CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and

Mathematics (STEM) Degrees , by (name redacted).

240

S. 744 §4104.

241

S. 744 §§4105 and 6(a)(2)(B)(vii).

242

S. 744 §4211(a).

243

S. 744 §4211(b) and §4231.

244

S. 744 §4211(a).

237

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dependent employers would not be permitted to outsource H-1B workers, and employers who are

eligible to outsource H-1Bs would pay a fee of $500 per outplaced worker.245

In addition, the subtitle would revise requirements for H-1Cs (nonimmigrant nurses), including

by reducing the number of visas available for such workers from 500 to 300 per year, and by

facilitating visa portability for such workers.246 Section 4213 would impose additional restrictions

on how employers advertise for H-1B positions, and would impose limits on the total number of

H-1B and L workers certain employers can hire. The DOL would be permitted to review an H-1B

LCA for evidence of fraud and to investigate and adjudicate any evidence of fraud identified.247

Subtitle B of Title IV of S. 744 also would broaden DOL’s authority to investigate alleged

employer violations, would require DOL to conduct annual compliance audits of certain

employers, and would increase information sharing between DOL and USCIS as well as DOL

reporting requirements.248 Employers who willfully violate the terms of their LCAs would be

subject to increased fines and would be liable for the lost wages and benefits of employees

harmed by such violations.249 Employers also would be prohibited from failing to offer H-1Bs

insurance, pension plans, and bonuses offered to U.S. workers, and from penalizing H-1B

workers for terminating employment before a previously agreed date.250

In addition, the subtitle would require DHS and DOS to provide H -1B and L workers with

information regarding their rights and employer obligations.251 Certain H-1B dependent

employers would be required to pay an additional $5,000 - $10,000 in filing fees beginning in

FY2015 (also see “L Visa Intra-Company Transferees” regarding similar fees for L dependent

employers).252 The bill would further authorize fees for premium processing of employmentbased immigrant petitions.253 And Section 4237 would permit visa portability and streamline

adjustment of status for certain aliens with long-standing employment-based petitions.

L Visa Intra-Company Transferees

Current law permits certain workers to enter the United States on nonimmigrant L visas as

intracompany transferees. The L visa is designed for executives, managers, and employees with

specialized knowledge of the firm’s products. It permits multinational firms to transfer top-level

personnel to their locations in the United States for up to five to seven years.254 Some Members of

Congress have raised concerns that the L visa may displace U.S. workers who had been employed

in those positions. These employees are often comparable in skills and occupations to H-1B

workers, yet lack the labor market protections the law sets for hiring H-1B workers. These

245

S. 744 §4211.

S. 744 §4212. Visa portability refers to the ability of a nonimmigrant worker to change employers.

247

S. 744 §4214.

248

S. 744 §§4221, 4223, 4224, and 4225.

249

S. 744 §4222.

250

S. 744 §4222.

251

S. 744 §4232.

252

S. 744 §§4233.

253

S. 744 §4234.

254

For a fuller discussion, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and

Protections, by (name redacted).

246

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concerns have been raised, in particular, with respect to certain outsourcing and information

technology firms that employ L workers as subcontractors within the United States.

In addition to extending certain H-1B protections described in Subtitle B of Title IV of S. 744 to

L visa holders (see “Changes to Protect U.S. Workers”), S. 744 includes additional L visa

protections. The bill would add prohibitions on the outsourcing and outplacement of L

employees, including by charging a $500 fee to be deposited in the STEM Education and

Training Account.255 Employers seeking to bring an L-visa worker to the United States to open a

new office would face special application requirements.256 DHS would be required to work with

DOS to verify the existence of multinational companies petitioning for the L workers.257 And

Section 4304 would impose caps on the total proportion of certain employers’ workforces that

may consist of L and H-1B workers, falling from an upper limit of 75% in FY2015 to an upper

limit of 50% after FY2016.258 Section 4305 would also impose addition

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