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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR43097

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** July 9, 2013
- **Citation:** R43097

## Text

Comprehensive Immigration Reform
in the 113th Congress:
Major Provisions in Senate-Passed S. 744
(name redacted)
Specialist in Immigration Policy
July 9, 2013

Congressional Research Service
7-....
www.crs.gov
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

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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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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

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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.
1

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).
2
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.
3
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).
4
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.

5

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).
7
P.L. 99-603.
8
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.
9
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.
10
Adjustment of status is the process of becoming a legal permanent resident (LPR) while in the United States.
11
Title II of S. 744 includes additional requirements and timelines for legalization and adjustment of status
applications.
12
S. 744 §3(c)(1).
13
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.
14
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...)
6

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•

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).
15
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).
16
S. 744 §3(c)(2)(A).
17
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.
18
S. 744 §3(c)(2)(B).
19
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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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

20

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.
21
S. 744 §6(b)(2).
22
S. 744 §6(a)(3)(A).

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•

$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

23

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.
24
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.
25
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.
26
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.
27
S. 744 §6(a)(3)(B).

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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
28

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).
29
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.
30
S. 744 §§6(a)(3)(B)-(C).
31
S. 744 §6(a)(3)(D).
32
S. 744 §6(b)(4).
33
Article I, Section 7, clause 1 of the U.S. Constitution, known generally as the “Origination Clause.”
34
For further discussion of “blue slipping,” see CRS Report RL31399, The Origination Clause of the U.S.
Constitution: Interpretation and Enforcement, by (name redacted).
35
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

36

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).
38
S. 744 §1203.
37

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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
39

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).
40
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.
41
S. 744 §1103.
42
Provisions regarding distress beacons were added pursuant to the Hoeven-Corker-Leahy amendment during debate
on the Senate floor.
43
S. 744 §1106.
44
S. 744 §1107.
45
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
46
For a fuller discussion, see CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry,
by (name redacted).
47
S. 744 §3(d).
48
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.
49
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).
50
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.
51
42 U.S.C. §§4321 et seq.
52
S. 744 §3704.
53
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
54

S. 744 §3712.
S. 744 §3710.
56
S. 744 §3706. The bill would include a humanitarian exemption from these penalties.
57
S. 744 §3707.
58
S. 744 §3710.
59
S. 744 §3708.
60
S. 744 §3306.
61
See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by (name re
dacted).
62
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.
63
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.
64
S. 744 §1104.
65
S. 744 §1108.
55

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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
66

S. 744 §1111.
S. 744 §1113.
68
S. 744 §1114.
69
S. 744 §1115.
70
S. 744 §1122.
71
S. 744 §§1114, 1115, 1117, 1120, 1122.
72
For a fuller discussion see CRS Report R42985, Issues in Homeland Security Policy for the 113th Congress,
coordinated by (name redacted).
67

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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
73

Ibid.
For a fuller discussion, see Ibid.; and CRS Report R42644, Department of Homeland Security: FY2013
Appropriations, coordinated by (name redacted).
75
CRS briefing with DHS Office of Congressional Affairs, April 3, 2013.
76
S. 744 §3303(a)(1).
77
S. 744 §3(c)(2)(A)(iv).
78
S. 744 §3304.
79
S. 744 §3303(a)(2).
80
S. 744 §§3303(a)(3)-(5).
74

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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
81
CRS Legislative Attorney (name redacted) and CRS
Specialist in Immigration Policy (name redacted) contributed
to this section of the report.
82
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.
83
CRS Legislative Attorney (name redacted), and
CRS Specialist in Immigration Policy (name redacted)
contributed to this section of the report.
84
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
85

See for example, U.S. Congress, Senate Judiciary Committee, “Building an Immigration System Worthy of
American Values,” March 20, 2013.
86
Ibid.
87
S. 744 §§3501(a)-(c).
88
S. 744 §3504.
89
S. 744 §3504.
90
S. 744 §3505.
91
S. 744 §3506.
92
S. 744 §§3501(d), 3502(d), 3503(e), 3505(b), and 3506(f).
93
S. 744 §3502.
94
S. 744 §3503.
95
S. 744 §3507.
96
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

97

S. 744 §3508.
S. 744 §3720(c).
99
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.
98

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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).
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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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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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 provisio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43097. Public record. Not legal advice.