The President’s Immigration Accountability Executive Action of November 20, 2014: Overview and Issues
Congressional research reportFeb 24, 2015
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The President’s Immigration Accountability
Executive Action of November 20, 2014:
Overview and Issues
(name redacted), Coordinator
Analyst in Immigration Policy
(name redacted)
Specialist in Organized Crime and Terrorism
(name redacted)
Specialist in Immigration Policy
(name redacted)
Specialist in Immigration Policy
February 24, 2015
Congressional Research Service
7-....
www.crs.gov
R43852
The President’s Immigration Accountability Executive Action of November 20, 2014
Summary
On November 20, 2014, President Obama announced his Immigration Accountability Executive
Action which would revise some U.S. immigration policies and initiate several programs,
including a revised border security policy for the Southwest border; deferred action programs for
some unauthorized aliens; revised interior enforcement priorities; changes to aid the entry of
skilled workers; promoting immigrant integration and naturalization; and several other initiatives
the President indicated would improve the U.S. immigration system. The most controversial
among these provisions would grant deferred action to as many as 5 million unauthorized aliens.
The President announced the executive action through 10 Department of Homeland Security
(DHS) memoranda, 2 White House memoranda, and 3 Department of Labor (DOL) fact sheets.
Together, they comprise the following initiatives:
•
Border Security: forming three new task forces as part of DHS’s Southern
Border and Approaches Campaign Strategy that integrates efforts not only within
DHS’s Customs and Border Protection (CBP) but also among other DHS
agencies, such as Immigration and Customs Enforcement (ICE), U.S. Citizenship
and Immigration Services (USCIS), and the U.S. Coast Guard;
•
Interior Enforcement and Removals: revising priorities for immigration
enforcement and detention; ending the Secure Communities program and
replacing it with the Priority Enforcement Program (PEP), collecting and
disseminating improved metrics on removals, and reforming the employment
structure for ICE Enforcement and Removal Office (ERO) agents;
•
Expanded Deferred Action for Childhood Arrivals (DACA): increasing the
population eligible for the DACA program by expanding the eligibility criteria,
and extending the duration of DACA and its related work authorization from two
to three years;
•
Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA): allowing parents of U.S. citizens and lawful permanent residents
(LPRs) to request deferred action and employment authorization if they meet
residency and other criteria and pass required background checks;
•
Parole Rules: revising conditions under which eligible family members of
military personnel, persons traveling abroad, and certain entrepreneurs may
receive parole;
•
Provisional Unlawful Presence Waivers: expanding the use of provisional
unlawful presence waivers beyond spouses and minor children of U.S. citizens to
also include the spouses and minor children of LPRs as well as the adult children
of U.S. citizens, and clarifying the “extreme hardship” standard that must be met
to obtain this waiver;
•
High Skilled Workers: ensuring that all statutorily available LPR visas are fully
utilized, reviewing the labor certification program and its regulations to
strengthen its integrity and responsiveness to workforce changes, providing
foreign workers with greater flexibility to change jobs, expanding the use of
national interest waivers to retain selected highly qualified workers, expanding
opportunities for students to gain on-the-job training through administrative rule
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The President’s Immigration Accountability Executive Action of November 20, 2014
changes, and clarifying the meaning of “specialized knowledge” to ensure U.S.
workers are not being unfairly displaced;
•
Immigrant Integration and Naturalization: initiating an inter-agency task force
to identify and promote both immigrant integration “best practices” within states
and localities as well as facilitating steps that can be taken administratively
within and among federal agencies, and encouraging eligible LPRs to naturalize
through additional payment options and possible partial fee waivers;
•
Immigrant Visa System: providing recommendations to streamline, modernize,
and improve immigrant and nonimmigrant visa processing;
•
Labor Protection: creating an inter-agency working group to promote effective
and consistent enforcement of federal labor, employment, and immigration laws
to protect all workers regardless of legal status; and
•
Crime Victims: expanding the DOL Wage and Hour Division’s role in supporting
foreign national victims of human trafficking and other select crimes.
According to the President, the action was taken in response to the absence of legislation
addressing major problems within the immigration system. The President has stated that his
executive action is temporary, and that his successor can rescind some or all of its provisions.
Those opposed to the executive action argue that it was taken largely for political purposes. They
contend that once granted, the temporary measures it encompasses would be difficult to revoke.
Separately, a debate has arisen as to whether the President has the legal authority to take such
action, with the Administration and others arguing the President’s action falls within his authority,
and many in Congress arguing the President has overstepped it. That debate and its attendant
legal questions are beyond the scope of this report.
Because the President announced his executive action relatively recently, little guidance is
available to clarify policies and answer questions related to the revisions and initiatives it
contains. The two deferred action programs included in the action, both of which would require
petitioners to submit fees, are the only initiatives in the executive action supported by
independent fee-supported funding. The rest rely largely on changes in rules and regulations and
on the coordination and marshaling of existing administrative resources. As the Administration
proceeds to implement the executive action, some in Congress have vowed to halt some or all of
its provisions. On February 23, 2015, Senator Collins introduced S. 534 that would invalidate
almost all the provisions of the President’s executive action.
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The President’s Immigration Accountability Executive Action of November 20, 2014
Contents
Current Developments ..................................................................................................................... 1
Introduction...................................................................................................................................... 1
Overview of Major U.S. Immigration Policy Issues ................................................................. 2
Broad Elements of Immigration Reform ................................................................................... 2
Summary of the President’s Executive Action .......................................................................... 3
Border Security ................................................................................................................................ 3
Coordinating Border Security.................................................................................................... 6
Discussion.................................................................................................................................. 6
Enforcement Priorities, Secure Communities, and Pay Reform ...................................................... 7
Enforcement Priorities ............................................................................................................... 8
Detention Priorities.................................................................................................................. 10
Removal Statistics ................................................................................................................... 10
Secure Communities/Interoperability ...................................................................................... 10
Personnel Reform .................................................................................................................... 12
Discussion................................................................................................................................ 12
Deferred Action, Parole, and Provisional Inadmissibility Waivers................................................ 13
Deferred Action ....................................................................................................................... 14
Expansion of Eligibility for DACA .................................................................................. 15
Establishment of the New Deferred Action Process ......................................................... 15
Parole ....................................................................................................................................... 15
Expansion of Use of Parole-in-Place for Military Families .............................................. 16
Advance Parole ................................................................................................................. 16
Provisional Unlawful Presence Waivers .................................................................................. 17
Expansion of Eligibility for Provisional Unlawful Presence Waivers............................... 18
Clarification of Extreme Hardship Standard ..................................................................... 19
Discussion................................................................................................................................ 19
High-Skilled Workers .................................................................................................................... 20
Permanent Employment-Based Immigration .......................................................................... 20
High-Skilled Temporary Worker Visas .................................................................................... 21
Changes to Current Policy ....................................................................................................... 21
Preventing Visa Retrogression .......................................................................................... 22
Labor Certification ............................................................................................................ 22
Changing Jobs ................................................................................................................... 23
National Interest Waiver .................................................................................................... 23
Start Up Visas .................................................................................................................... 23
Optional Practical Training (OPT) .................................................................................... 24
L Visas ............................................................................................................................... 25
Discussion ......................................................................................................................... 25
Integration and Naturalization ....................................................................................................... 26
Immigrant Integration .............................................................................................................. 26
Encouraging Naturalization ..................................................................................................... 27
Discussion................................................................................................................................ 28
Other Executive Action Initiatives ................................................................................................. 29
Modernizing the U.S. Immigrant Visa System ........................................................................ 29
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More Consistent Enforcement of Federal Labor, Employment, and Immigration Laws ........ 30
Expanding Support for Crime Victims .................................................................................... 31
Conclusion ..................................................................................................................................... 32
Figures
Figure 1. Apprehensions and Border Patrol Staffing along the Southwest Border .......................... 5
Contacts
Author Contact Information........................................................................................................... 33
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The President’s Immigration Accountability Executive Action of November 20, 2014
Current Developments
On February 23, 2015, Senator Susan Collins introduced S. 534, the Immigration Rule of Law
Act of 2015,1 which would prohibit funding for almost all of the President’s Immigration
Accountability Executive Action announced on November 20, 2014. The legislation cites 11 of
the 12 memoranda issued pursuant to the executive action, including 9 memoranda issued by the
Secretary of Homeland Security, and both memoranda issued by the President.2 The legislation
would prohibit any funds or fees, including deposits into the Immigration Examinations Fee
Account, from being used to grant any federal benefits pursuant to any policy changes established
in the cited memoranda. In addition, the bill would require the Department of Homeland Security
(DHS) to treat as within its highest enforcement priority for removal any alien convicted of
domestic violence, sexual abuse, child molestation, or child exploitation. The bill would express
the sense of Congress on policies that it finds as imposing disadvantages on the hiring of U.S.
citizens and lawfully present aliens. It would also express the sense of Congress on policies that
disadvantage the immigration processing of lawfully present aliens in favor of that for
unauthorized aliens.
Introduction
President Obama’s Immigration Accountability Executive Action of November 20, 2014, would
revise some U.S. immigration policies and initiates several programs, including a revised border
security policy for the Southwest border; deferred action programs for some unauthorized aliens;
revised interior enforcement priorities; changes to aid the entry of skilled workers; promoting
immigrant integration and naturalization; and several other initiatives the President indicated
would improve the U.S. immigration system. The most controversial among these would grant
deferred action to as many as 5 million unauthorized aliens.3 The President announced the
executive action through 10 Department of Homeland Security (DHS) memoranda, 2 White
House memoranda, and 3 Department of Labor (DOL) fact sheets.
According to the President, the action was taken in response to the absence of legislation
addressing major problems within the immigration system. The President has stated that his
executive action is temporary, and that his successor can rescind some or all of its provisions.
Those opposed to the executive action argue that it was taken largely for political purposes. They
contend that once granted, the temporary measures it encompasses would be difficult to revoke.
Separately, a debate has arisen as to whether the President has the legal authority to take such
action, with the Administration and others arguing the President’s action falls within his authority,
1
S. 534, version EAS 15148.
Not cited in S. 534 is the memorandum from the Secretary of Homeland Security entitled Personnel Reform for
Immigration and Customs Enforcement Officers, dated November 20, 2014, as well as policies outlined in three fact
sheets issued by the Department of Labor on November 20, 2014.
3
Migration Policy Institute, MPI: As Many as 3.7 Million Unauthorized Immigrants Could Get Relief from Deportation
under Anticipated New Deferred Action Program - With Existing DACA Program Included, Anticipated Actions Could
Benefit More than 5.2 Million in Total—Nearly Half of U.S. Unauthorized Population, Press Release, November 30,
2014. The press release is based upon analytic work presented in Randy Capps, (name redacted), and James D.
Bachmeier, Executive Action for Unauthorized Immigrants: Estimates of the Populations that Could Receive Relief,
Migration Policy Institute, Issue Brief No. 10, Washington, DC, September 2014.
2
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The President’s Immigration Accountability Executive Action of November 20, 2014
and many in Congress arguing the President has overstepped it.4 That debate and its attendant
legal questions are beyond the scope of this report. As the Administration proceeds to implement
the executive action, some in Congress have vowed to halt some or all of its provisions.
Overview of Major U.S. Immigration Policy Issues
Policymakers and immigration observers widely agree that the U.S. immigration system is
“broken,” but they disagree on measures to fix it. Underlying these different views are broader
and more fundamental debates about how many temporary and permanent immigrants should be
admitted into the United States, how those immigrants should be selected for admission (e.g.,
needed skills, relationship to U.S. residents), and the funding levels and appropriate mix of
immigration enforcement measures, among other issues.5
Long-standing immigration-related challenges include an estimated population of over 10 million
unauthorized individuals, a large portion of whom have lived in the country for over a decade and
have U.S. citizen and lawful permanent resident (LPR) children;6 increasing competition among
more advanced nations for the “best and brightest” workers, including U.S. educated science,
technology, engineering, and mathematics (STEM) graduates;7 a queue of 4.4 million individuals
whose petitions for lawful permanent resident (LPR) status have been approved and who must
wait, in some cases decades, for a numerically limited visa to immigrate;8 and ongoing border
security and interior enforcement challenges.9
Broad Elements of Immigration Reform
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) and other immigration laws 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 for the unauthorized population residing in the United States.
4
For more information on this debate, see CRS Report R43782, Executive Discretion as to Immigration: Legal
Overview, by (name redacted) and (name redacted).
5
For example, see a discussion of broad immigration debates surrounding family-based immigration in CRS Report
R43145, U.S. Family-Based Immigration Policy, by (name redacted).
6
CRS Report R41207, Unauthorized Aliens in the United States: Policy Discussion, by (name redacted).
7
See archived CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and
Mathematics (STEM) Degrees , by (name redacted).
8
CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview, by (name redacted).
9
CRS Report R42969, Border Security: Understanding Threats at U.S. Borders, by (name redacted) and (name re
dacted); CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by (name redacted); CRS
Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by (name redacted); CRS Report
R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by (name redacted) and (name re
dacted).
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The President’s Immigration Accountability Executive Action of November 20, 2014
In 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration
Modernization Act (S. 744), a comprehensive immigration reform bill. S. 744 contained
provisions that, among other things, would have increased border security and interior
enforcement, expanded employment eligibility verification and worksite enforcement, offered a
conditional path to legal status for many unauthorized aliens, reformed permanent immigrant and
temporary nonimmigrant visas, and revised humanitarian admissions. The House took a different
approach to immigration reform. Rather than consider a single comprehensive bill, the House
acted on separate bills that, among other provisions, would have increased border security and
interior enforcement, expanded employment eligibility verification and worksite enforcement,
and substantially revised nonimmigrant and immigrant visas.10
Summary of the President’s Executive Action
The President’s “Immigration Accountability Executive Action,” announced on November 20,
2014, includes initiatives covering the following policy areas:
•
border security;
•
interior enforcement and removals;
•
Deferred Action for Childhood Arrivals (DACA);
•
Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA);
•
parole;
•
provisional unlawful presence waivers;
•
high-skilled foreign workers;
•
immigrant integration and naturalization;
•
immigrant visa system;
•
labor protection; and
•
crime victims.
This report reviews each component of the President’s executive action based on currently
available information. The report is broken out by broad policy areas. Each section begins with a
discussion of the context of existing policy, describes the related executive action, and
summarizes how the action would address current immigration policy challenges.
Border Security
Security along U.S. borders has been an ongoing subject of congressional interest since the
1970s, when illegal immigration emerged as a serious national problem. The terrorist attacks of
10
In the 113th Congress, House committees reported or ordered to be reported the following immigration bills: Border
Security Results Act of 2013 (H.R. 1417); Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2278); Legal
Workforce Act (H.R. 1772); Agricultural Guestworker (AG) Act (H.R. 1773); and Supplying Knowledge-based
Immigrants and Lifting Levels of STEM Visas (SKILLS Visa) Act (H.R. 2131).
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The President’s Immigration Accountability Executive Action of November 20, 2014
September 11, 2001 (9/11), spurred concerns about border security, a core part of DHS’s effort to
control unauthorized migration. The United States Border Patrol (USBP, Border Patrol)
spearheads this effort as the lead agency along most of the borders. The USBP focuses on the
regions between ports of entry (POEs).11
In addition to Border Patrol agents, other law enforcement personnel work in U.S. border regions.
These include Customs and Border Protection (CBP) officers at POEs; Immigration and Customs
Enforcement (ICE) agents; U.S. Coast Guard (USCG) personnel; additional federal law
enforcement officers from agencies such as the Drug Enforcement Administration, U.S. Marshals
Service, and Department of Agriculture; state and local police; and on occasion, the National
Guard. Complementing this array of personnel are CBP’s land-based surveillance assets,12 air and
marine surveillance assets,13 and fencing and physical infrastructure.14
USBP has experienced large-scale growth since 2004, and DHS Secretary Johnson and the
Obama Administration have argued that the Southwest border is more secure than ever.15 Yet,
some Members of Congress and others have called on the Administration to do more to secure the
border. Border security has been a recurrent theme in Congress’s debate about comprehensive
immigration reform since 2005, and some Members have argued that Congress should not
consider additional immigration reforms until the border is more secure.16
USBP is responsible for enforcing U.S. immigration law and other federal laws along the border
and for preventing all unlawful entries into the United States, including entries of terrorists,
unauthorized aliens, weapons of mass destruction, illicit narcotics, and other contraband. In
discharging its duties, USBP patrols roughly 7,500 miles of U.S. international borders with
Mexico and Canada and the coastal waters around Florida and Puerto Rico.
11
For more information, see CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry,
by (name redacted).
12
These include a network of ground sensors, agent-centric mobile surveillance equipment, integrated fixed towers,
agent-portable tripod-mounted surveillance systems, vehicle-mounted mobile surveillance systems, truck-mounted
mobile vehicle surveillance systems, tower-mounted remote video surveillance systems, and air-based surveillance
systems, all of which are linked, to varying degrees, to centralized control rooms where personnel monitor the border,
alert field agents to potential incursions, and coordinate the response. In recent years, the Border Patrol’s focus with
respect to surveillance technology has shifted from fixed towers and other static resources to more mobile and dynamic
systems. From CRS discussions with U.S. Border Patrol, December 17, 2012, and August 26, 2014; also see U.S.
Border Patrol, 2012-2016 Border Patrol Strategic Plan, Washington, DC: 2012.
13
CBP houses much of this capacity in its “Office of Air and Marine ... [which] is the world’s largest aviation and
maritime law enforcement organization, a critical component of CBP’s layered enforcement strategy for border
security. [The Office of Air and Marine has] 1,200 federal agents, more than 250 aircraft and over 280 marine vessels
operating from 83 locations in the United States and Puerto Rico. See http://www.cbp.gov/border-security/air-sea.
14
This includes items such as fencing and lighting along the border. In addition to fencing and other infrastructure in
the immediate border region, DHS deploys a variety of checkpoints and forward operating bases to enhance border
security. Checkpoints, including permanent and “tactical” (or roving) checkpoints, are located at some distance from
the linear border, usually within 100 miles of the border.
15
See for example, Jeh Charles Johnson, Secretary, Department of Homeland Security, “Border Security in the 21st
Century,” public remarks delivered at the Center for Strategic and International Studies, Washington, D.C., October 9,
2014. Hereinafter Johnson, “Border Security in the 21st Century.” White House, “Fixing the Immigration System for
America’s 21st Century Economy.”
16
See, for example, Tom Howell, Jr, “Senate Republicans: Immigration Reform Must Deal First with Border Security,”
Washington Times, November 19, 2014; Alan Gomez, “Border Security Quandary Could Kill Immigration Bill,” USA
Today, April 2, 2013.
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The President’s Immigration Accountability Executive Action of November 20, 2014
Along the border, USBP’s staffing has grown from 9,511 in FY2004 to 18,611 in FY2013, with a
slight dip to 18,127 in FY2014 (Figure 1). At the same time, apprehensions at the Southwest
border have declined with an uptick in recent years partly due to a rise in the number of
unaccompanied children crossing illegally. It is unclear how the expansion in USBP personnel
has influenced unlawful migration, but the Obama Administration and DHS Secretary Johnson
have touted these two numbers as indicative of improved security along the Southwest border.17
In recent years, CBP and USBP have developed border security plans. In May 2012, CBP
released the most recent iteration, the “2012-2016 Border Patrol Strategic Plan.” It shifts attention
from resource acquisition and deployment to the strategic allocation of resources by “focusing
enhanced capabilities against the highest threats and rapidly responding along the border.”18 From
an operational perspective, this plan emphasizes the collection and analysis of information about
evolving border threats; integration of Border Patrol and CBP planning across different border
sectors and among the full range of federal, state, local, tribal, and international organizations
involved in border security; and rapid Border Patrol response to specific border threats.19
Figure 1. Apprehensions and Border Patrol Staffing along the Southwest Border
FY2004-FY2014
20,000
1,400,000
18,000
1,200,000
Apprehensions
1,000,000
14,000
12,000
800,000
10,000
600,000
8,000
6,000
400,000
Border Patrol Staffing
16,000
Apprehensions
4,000
200,000
Border Patrol
Staffing
2,000
0
0
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Fiscal Year
Source: Jeh Charles Johnson, DHS Secretary, “Border Security in the 21st Century,” slides from presentation
delivered at the Center for Strategic and International Studies, Washington, DC, October 9, 2014.
17
Johnson, “Border Security in the 21st Century.”
18
CBP, 2012-2016 Border Patrol Strategic Plan, Washington, DC: 2012, p. 7.
19
Ibid.
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Coordinating Border Security
In one project to enhance the coordination of complex border security and inspection efforts, CBP
developed the Arizona Joint Field Command (JFC). The JFC emerged in 2011 as “an
organizational realignment” bringing together the Border Patrol with CBP’s other key
components,20 “under a unified command structure to integrate CBP’s border security,
commercial enforcement, and trade facilitation missions to more effectively meet the unique
challenges faced in the Arizona area of operations.”21 The JFC includes more than 6,700 CBP
employees and covers the entire state of Arizona and parts of California.
DHS has announced coordination measures that appear to go much further than the JFC.
Secretary Johnson first revealed the development of such border-security plans in May 2014. In
written congressional testimony he describes a “Southern Border and Approaches Campaign”
planning effort devised to create
a strategic framework to further enhance security of our Southern border. Plan development
will be guided by specific outcomes and quantifiable targets for border security, approved by
me, and will address improved information sharing, continued enhancement and integration
of sensors, and unified command and control structures as appropriate. The overall planning
effort will also include a subset of campaign plans focused on addressing challenges within
specific geographic areas.22
Discussion
On November 20, 2014, DHS Secretary Johnson expanded on the campaign by “commissioning”
three Joint Task Forces.23 Unlike the Arizona JFC, which brings together elements within CBP,
the three Joint Task Forces would bring together personnel from CBP as well as other DHS
agencies—the U.S. Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship
and Immigration Services (USCIS). The Joint Task Forces would also “integrate capabilities of
the remaining [DHS] components as needed.” According to Secretary Johnson, “two of these task
forces will be geographically based and one will be functionally focused.” Joint Task Force East
would cover “the Southern maritime border and approaches.” Joint Task Force West would have
responsibility for the southern land border and the West Coast, while an entity dubbed Joint Task
Force Investigations “will focus on investigations in support of the geographic Task Forces.” The
memo lays out broad missions and objectives and sets a 90 day timeframe to “realign personnel
and stand up headquarters capabilities within each Joint Task Force.”
20
Office of Air and Marine and the Office of Field Operations (CBP officers at POEs).
Joint written testimony of Custom and Border Protection’s U.S. Border Patrol Chief Michael Fisher, (then) Office of
Air and Marine Assistant Commissioner Michael Kostelnik, Office of Technology Innovation & Acquisition Assistant
Commissioner Mark Borkowski, and (then) Office of Field Operations Acting Assistant Commissioner Kevin
McAleenan for a House Committee on Appropriations, Subcommittee on Homeland Security hearing on The
President’s Fiscal Year 2013 budget request for CBP, February 29, 2012.
22
U.S. Department of Homeland Security, Memorandum to R. Gil Kerlikowske, Commissioner, U.S. Customs and
Border Protection, Admiral Paul F. Zukunft, Commandant, U.S. Coast Guard, Thomas S. Winkowski, Acting Director,
U.S. Immigration and Customs Enforcement, Leon Rodriquez, Director, U.S. Citizenship and Immigration Services,
W. Craig Fugate, Administrator, Federal Emergency Management Agency, and Alan D. Bersin, Acting Assistant
Secretary for Policy, from Jeh Charles Johnson, Secretary of Homeland Security, Southern Border and Approaches
Campaign, November 20, 2014.
23
Ibid.
21
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Thus far, more details about the Joint Task Forces are scarce, and several key questions loom:
•
Would DHS alter its command and control structures—as well as those of its
component agencies—to accommodate these new bodies?
•
What authority would each Joint Task Force leader24 have over Task Force
personnel, immediate priorities, and budgets? Would such authority supersede the
authority of component leadership in DHS?
•
What metrics would be used to assess the effectiveness of the Joint Task Forces?
•
How would jurisdictional disputes between Joint Task Forces and issues related
to competing mission priorities be settled?
Enforcement Priorities, Secure Communities, and
Pay Reform
Since its enactment in 1952, the Immigration and Nationality Act has given the Attorney General
and more recently the DHS Secretary discretion to exercise the power to remove foreign
nationals. Since at least 1975, a series of policy memorandums published by the former
Immigration and Naturalization Service (INS) and DHS has provided guidance to immigration
officers who institute removal proceedings against an alien. The guidance noted which categories
of foreign nationals to prioritize for removal (i.e., prosecutorial discretion).25
ICE Enforcement and Removal Operations (ERO) is chiefly responsible for locating removable
aliens, managing custody of aliens undergoing removal procedures, and ensuring that aliens
directed to depart from the United States do so (either by witnessing their removals or by
physically removing the aliens). In addition, certain other DHS personnel may initiate a removal
process against an alien.26
On November 20, 2014, the DHS Secretary announced new department-wide policies for
enforcement priorities and the apprehension, detention, and removal of aliens.27 This guidance is
24
According to the November 20, 2014, memo, the Task Forces “should adopt a supported-supporting component
model. Among the Components of this Department [DHS], CBP will be the supported component in Joint Task Force
West, the USCG will be the supported component in Joint Task Force East, and ICE will be the supported component
in Joint Task Force Investigations.”
25
In the civil immigration enforcement context, the term “prosecutorial discretion” applies to a broad range of
discretionary enforcement decisions including issuing or canceling notices to appear (NTAs) which start the removal
process, allowing other forms of removal (e.g., voluntary departure), rather than instituting a standard removal
proceeding in immigration court, granting deferred action and deciding whom to arrest for a violation of civil
immigration law. Prosecutorial discretion may be exercised at any stage of an enforcement proceeding, but policy states
that it should generally be exercised as early in the case as possible to preserve government resources.
26
DHS personnel who are authorized to initiate removal procedures include U.S. Customs and Border Protection
(CBP) officers and U.S. Border Patrol agents (within CBP), asylum and examination officers in U.S. Citizenship and
Immigration Services (USCIS), and detention officers and other agents in U.S. Immigration and Customs Enforcement
(ICE); see 8 C.F.R. §239.1(a).
27
U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriquez,
Director, U.S. Citizenship and Immigration Services, and Alan D. Bersin, Acting Assistant Secretary for Policy, from
Jeh Charles Johnson, Secretary of Homeland Security, Policies for the Apprehension, Detention, and Removal of
(continued...)
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effective on January 5, 2015. In addition, Secretary Johnson announced a review and steps to
overhaul the pay scale for immigration officers in ERO.28
Enforcement Priorities
Secretary Johnson wrote in the November 20, 2014, memorandum on enforcement priorities:
Due to limited resources, DHS and its components cannot respond to all immigration
violations or remove all persons illegally in the United States. As is true of virtually every
other law enforcement agency, DHS must exercise prosecutorial discretion in the
enforcement of the law. And, in the exercise of that discretion, DHS can and should develop
smart enforcement priorities, and ensure that use of its limited resources is devoted to the
pursuit of those priorities.29
The memorandum states that prosecutorial discretion should apply to initiating or suspending a
removal proceeding as well as other enforcement decisions, such as deciding who to stop,
question, arrest and detain; whether to continue to pursue a removal case; and whether to grant
deferred action, parole, or a stay of removal. While DHS may exercise prosecutorial discretion at
any stage of an enforcement proceeding, the policy states it is preferable to do so as early as
possible to conserve government resources.
The memorandum lays out the following enforcement priorities:
•
(Highest) Priority 1: threats to national security, border security, and
public safety
•
aliens engaged in or suspected of terrorism or espionage, or who otherwise
pose a threat to national security;
•
aliens apprehended at the border or ports of entry while attempting to
unlawfully enter the United States;
•
aliens convicted of an offense that involves participating in a criminal street
gang,30 or aliens who are 16 years or older who intentionally participated in
an organized criminal gang to further illegal activity of the gang; and
•
aliens convicted of felonies.31
(...continued)
Undocumented Immigrants, November 20, 2014; and U.S. Department of Homeland Security, Memorandum to
Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer, Officer of
Civil Rights and Civil Liberties, and Philip A. McNamara, Assistant Secretary, Intergovernmental Affairs, from Jeh
Charles Johnson, Secretary of Homeland Security, Secure Communities, November 20, 2014.
28
U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, and Catherine Emerson, Chief Human Capital Officer, Department of Homeland Security,
from Jeh Charles Johnson, Secretary of Homeland Security, Personnel Reform for Immigration and Customs
Enforcement Officers, November 20, 2014.
29
U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriquez,
Director, U.S. Citizenship and Immigration Services, and Alan D. Bersin, Acting Assistant Secretary for Policy, from
Jeh Charles Johnson, Secretary of Homeland Security, Policies for the Apprehension, Detention, and Removal of
Undocumented Immigrants, November 20, 2014, p. 2.
30
Criminal street gang is defined in 18 U.S.C. §521(a).
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The President’s Immigration Accountability Executive Action of November 20, 2014
•
•
Priority 2: misdemeanants and new immigration violators
•
aliens convicted of three or more misdemeanors32 or a “significant
misdemeanor;”33
•
aliens who are unlawfully present and were not physically present before
January 1, 2014; and
•
aliens who have significantly abused the “visa or visa waiver programs” (i.e.,
terms of admittance).
Priority 3: aliens issued final orders of removal after December 31, 2013.
According to the memorandum, unless certain circumstances are met, aliens described in Priority
1 must be prioritized for removal, those in Priority 2 should be removed, and those in Priority 3
should generally be removed.34
The President’s executive action issued on November 20, 2014, revised enforcement priorities
and rescinded and superseded related policies issued in 2011 and 2012 by then-ICE Director John
Morton.35 The previous priority levels were (1) aliens who pose a danger to national security or a
risk to public safety; (2) recent entrants; and (3) aliens with final orders of removal (i.e., fugitives
or absconders) or who otherwise obstruct immigration controls. The most substantive change in
enforcement priorities between the newly issued policy and policies from earlier years36 is that an
alien who was issued a final order of removal prior to 2014 is no longer an enforcement priority,
provided he or she is neither a criminal nor a national security concern.37 Other changes include
(...continued)
31
Felonies include any offense classified as a felony in the convicting jurisdiction, and any aggravated felony as
defined in INA §101(a)(43).
32
This excludes traffic offenses.
33
Significant misdemeanor is defined as an offense of domestic violence, sexual abuse or exploitation; burglary;
unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or one for
which the individual was sentenced to time in custody for 90 days or more.
34
The policy leaves room for discretion among DHS personnel, even with Priority 1 aliens. The policy states that an
alien should be prioritized for removal unless he or she may be eligible for relief from removal or factors exist that, in
the judgment of DHS personnel, indicate the person should not be an enforcement priority. Notably, Priority 1 requires
“compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or
public safety and should not therefore be an enforcement priority,” while Priority 3 requires “the alien is not a threat to
the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.”
35
John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, U.S. Immigration and Customs Enforcement, Washington, DC, March 2, 2011; John Morton,
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens, U.S. Department of Homeland Security Immigration and Customs
Enforcement, Washington, DC, June 17, 2011; and John Morton, Prosecutorial Discretion: Certain Victims, Witnesses,
and Plaintiffs, U.S. Department of Homeland Security Immigration and Customs Enforcement, Washington, DC, June
17, 2011.
36
Although the immigration agencies have issued guidance regarding enforcement priorities since at least 1975,
analysis of the evolution of enforcement priorities is beyond the scope of this report.
37
Aliens who have been issued final orders of removal but who have not departed from the United States are known as
absconders or fugitive aliens. Since FY2002, there has been a concerted effort to remove absconders. In 2003,
Congress mandated that the names of absconders be added to DOJ’s National Crime Information System. See archived
CRS Report RL33351, Immigration Enforcement Within the United States, coordinated by (name redacted), and CRS
Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by (name redacted) and
(name redacted).
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The President’s Immigration Accountability Executive Action of November 20, 2014
increasing the priority level of aliens apprehended at or between ports of entry while attempting
to illegally enter the country, and providing more specificity on the types of misdemeanor
offenses that make an alien a focus for removal.
Detention Priorities
As with the previous Morton policy memorandum on detention and removal priorities,38 the
November 20, 2014, memorandum on enforcement priorities specifies that as a general rule,
detention resources should be used to support enforcement priorities noted above or for aliens
subject to mandatory detention under the law.39 In keeping with earlier policy, the memorandum
also states that, absent extraordinary circumstances or the statutory requirement of mandatory
detention, ICE should not detain aliens who are
•
known to be suffering from serious physical or mental illness;
•
disabled, elderly, pregnant, or nursing;
•
primary caretakers of children or infirm persons; or
•
not in the public interest to detain.
Removal Statistics
ICE and the Office of Immigration Statistics (OIS) both report removal statistics, but immigration
observers have raised questions about their accuracy.40 In addition, removal statistics are used to
evaluate DHS’s adherence to stated policies on enforcement priorities.41 Through the executive
action, DHS Secretary Johnson directed OIS, with the cooperation of CBP, ICE, and USCIS, to
create the capability to collect and maintain data reflecting the numbers of those apprehended,
removed, returned, or otherwise repatriated by any component of DHS. He further directed that
these statistics be made publically available on an annual basis.
Secure Communities/Interoperability
Secure Communities was the original name given to an information sharing program that uses
biometric data to screen for removable aliens as people are being booked into jails. The program
began in late 2008 in about a dozen jurisdictions and since FY2013 has been operational in all
state and local law enforcement jurisdictions in the country. As early as 2011, DHS began
38
John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, U.S. Immigration and Customs Enforcement, Washington, DC, March 2, 2011.
39
Under statute, those subject to mandatory detention include criminal aliens, national security risks, certain arriving
aliens, and select persons with final orders of removal. For more on mandatory detention, see CRS Report RL32369,
Immigration-Related Detention, by (name redacted), and CRS Report WSLG524,
How “Mandatory” Is the Mandatory
Detention of Certain Aliens in Removal Proceedings, by (name redacted).
40
For example, see Mark Hugo Lopez, Ana Gonzalez-Barrera, and Seth Motel, As Deportations Rise to Record Levels,
Most Latinos Oppose Obama’s Policy, Pew Research Hispanic Trends Project, Washington, DC, December 28, 2011,
Appendix A.
41
For example, see Jessica Vaughan, Deportation Numbers Unwrapped: Raw Statistics Reveal the Real Story of ICE
Enforcement in Decline, Center for Immigration Studies, Washington, DC, October 2013; and Brian Bennett, “High
Deportation Figures are Misleading,” LA Times, April 1, 2014, p. 1.
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The President’s Immigration Accountability Executive Action of November 20, 2014
referring to this program as interoperability between local law enforcement, the Federal Bureau
of Investigation (FBI), and DHS.42
Secure Communities/interoperability is not an enforcement unit. When law enforcement agencies
book (take custody of) someone and submit the person’s fingerprints to the FBI for criminal
background checks,43 the fingerprints are also automatically checked against DHS’s Automated
Biometric Identification System (IDENT) database.44 If the person is matched to an immigration
record in IDENT, ICE is notified and determines whether any action is necessary or appropriate
based on the agency’s enforcement priorities.45 Aliens identified for removal are placed in
removal proceedings by ICE agents, typically from the Criminal Alien program (CAP).46
As part of the President’s executive action, Secretary Johnson directed ICE to discontinue Secure
Communities.47 However, the data interoperability between DOJ and DHS created under the
name Secure Communities would not be discontinued. Instead, the program would be renamed
and enforcement priorities changed for those identified as possibly removable aliens through the
interoperability process. Consistent with the policy memorandum on enforcement priorities, the
policy memorandum on Secure Communities specifies that ICE should only seek a transfer for an
alien in state or local custody if he or she has been convicted of a Priority 1 offense or of multiple
or significant misdemeanors. Under the revised priorities, unless aliens pose a demonstrable risk
to national security, enforcement actions would only be taken against those convicted of
specifically enumerated crimes. The new program would be called the Priority Enforcement
Program (PEP).
The Secure Communities memorandum also addresses the issue of “immigration detainers.”
These are documents in which ICE advises law enforcement agencies of its interest in individuals
whom these agencies are detaining, and to take actions (such as holding the alien temporarily) to
facilitate their removal.48 The increased use of immigration detainers under Secure Communities
42
Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security
Advisory Council, Washington, DC, September 2011, p. 11; and ICE, Congressional Budget Justification FY2014, p.
57.
43
DOJ’s Integrated Automated Fingerprint Identification System (IAFIS) conducts criminal and terrorist background
checks in response to requests from federal, state, and local law enforcement agencies by checking fingerprints against
the IAFIS database of fingerprints, criminal histories, photographs, and biographic information. See Federal Bureau of
Investigation, “Integrated Automated Fingerprint Identification System,” http://www.fbi.gov/about-us/cjis/
fingerprints_biometrics/iafis/iafis.
44
The IDENT database is DHS’s primary department-wide biometric database, and includes photographs, fingerprints,
biographic name, personal identifier data, citizenship and nationality, and derogatory information, if applicable. See
DHS, Privacy Impact Assessment for the Automated Biometric Identification System (IDENT), Dec. 7, 2012.
45
Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security
Advisory Council, Washington, DC, September 2011, p. 10.
46
The Criminal Alien Program (CAP) is an umbrella program that includes several different systems for identifying,
detaining, and initiating removal proceedings against criminal aliens incarcerated within federal, state, and local prisons
and jails, as well as at-large criminal aliens that have been released into communities after serving their sentences.
Immigration and Customs Enforcement, Enforcement and Removal Operations, Crimnal Alien Program, Fact Sheet,
Washington, DC, http://www.ice.gov/criminal-alien-program. See also CRS Report R42057, Interior Immigration
Enforcement: Programs Targeting Criminal Aliens, by (name redacted) and (name redacted).
47
U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, Megan Mack, Officer, Office of Civil Rights and Civil Liberties, and Philip A. McNamara,
Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary of Homeland Security, Secure
Communities, November 20, 2014.
48
ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as one means of
(continued...)
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The President’s Immigration Accountability Executive Action of November 20, 2014
has raised legal questions regarding their use.49 Under the revised policy, ICE would replace
requests for detention with requests for notification (i.e., that state or local law enforcement notify
ICE of an alien’s pending release from custody). Under special circumstances, a detention request
may be issued if the person is subject to a final order of removal or if sufficient probable cause
exists to find the person removable.
Some contend that the Secure Communities program has led to unfair treatment of selected
individuals (e.g., a person is arrested rather than just given a warning or ticket because of his or
her perceived immigration status) as well as some improper arrests and unlawful detention (e.g., a
person is arrested on a false change because he or she is perceived to be unlawfully present).50 In
the Secure Communities memorandum of November 20, 2014, the DHS Secretary directs the
Office of Civil Rights and Civil Liberties to develop and implement a plan to monitor state and
local law enforcement agencies participating in the transfer of foreign nationals to ICE.
Personnel Reform
As part of the President’s executive action, DHS also announced a recalibration of the workforce
and pay structure for ICE Enforcement and Removal Operations (ERO) personnel.51 The related
memorandum directs ERO and the DHS Office of the Chief Human Capital Officer to review the
job series and premium pay coverage for ERO officers and determine any changes that may be
required. The Administration would then pursue and prioritize regulations and legislation
necessary to achieve the desired changes. According to the Administration, ERO’s enforcement
strategy and initiatives have shifted toward investigations, identification, location, arrest,
prosecution, and removal of criminal aliens and other aliens who pose risks to national security.
However, ERO’s personnel structure lags behind other law enforcement agencies and other
components of ICE, harming morale and presenting management challenges.52 Some observers
contend that personnel issues related to pay structure have existed for years at ERO, and that the
reforms within the President’s executive action were timed for political purposes.53
Discussion
Since 2002, DHS has made concerted efforts to locate and remove absconders.54 The President’s
executive action of November 20, 2014, would no longer make such aliens enforcement priorities
(...continued)
obtaining custody of aliens for removal proceedings since at least 1950. CRS Report R42690, Immigration Detainers:
Legal Issues, by (name redacted).
49
See CRS Report R42690, Immigration Detainers: Legal Issues, by (name redacted).
50
Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security
Advisory Council, Washington, DC, September 2011, p. 26.
51
U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, and Catherine Emerson, Chief Human Capital Officer, Department of Homeland Security,
from Jeh Charles Johnson, Secretary of Homeland Security, Personnel Reform for Immigration and Customs
Enforcement Officers, November 20, 2014, p. 2.
52
Ibid, p. 1.
53
Dan Cadman, Analysis of Obama’s Executive Amnesty Scheme: ICE Personnel Reform, Center for Immigration
Studies, Washington, DC, December 2, 2014.
54
Aliens who have been issued final orders of removal but who have not departed from the United States are known as
absconders or fugitive aliens. In 2003, Congress mandated that the names of absconders be added to DOJ’s National
(continued...)
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The President’s Immigration Accountability Executive Action of November 20, 2014
if they were issued final orders of removal prior to 2014 and are neither criminals nor national
security concerns. At the start of FY2014, ICE reported a backlog of 469,151 fugitive aliens who
had not been apprehended.55 The Administration stated it is undertaking this policy to allow DHS
to focus its limited resources on higher enforcement priorities. It is not known, however, how
many fugitive aliens would qualify for the President’s deferred action initiatives, but some
overlap between the two programs can be expected. Time would be required to measure the
impact of the new enforcement priorities on the types of aliens who are located and removed.
In addition, until implemented it remains unclear exactly what the effect of the new PEP program
would be, compared to the former and in some ways comparable Secure Communities program it
replaced. The enforcement priorities memorandum of November 20, 2014, suggests that ICE
would issue fewer detainers with state and local law enforcement, focusing only on higher
priority cases. It is also unclear how well the new requests for notification would effectuate the
transfer of aliens to ICE custody, since not all jurisdictions currently accept ICE requests for
detention.
Deferred Action, Parole, and Provisional
Inadmissibility Waivers
How to address the unauthorized alien56 population in the United States has arguably been the
most divisive issue in recent discussions about immigration reform. Proposals to enable
unauthorized aliens to become U.S. lawful permanent residents (LPRs) have been key flash
points in the congressional debate. Various legalization proposals have been introduced in recent
Congresses, but none have been enacted. One key difference among these proposals has been
their scope. Some bills have been targeted at particular segments of the unauthorized population.
For example, legislation known as the Development, Relief, and Education for Alien Minors
(DREAM) Act has proposed to enable certain unauthorized aliens who arrived in the United
States as children to obtain LPR status through a two-stage process.57 Other more controversial
measures, such as the major Senate immigration reform bill considered in the 113th Congress,58
have aimed to provide LPR status more broadly.
While only legislative action can bestow legal immigration status, the Obama Administration has
used other mechanisms to enable unauthorized aliens to remain in the United States. The
Administration has also taken steps to address the impact of provisions in the Immigration and
Nationality Act (INA) that make aliens who have been unlawfully present in the United States for
(...continued)
Crime Information System. See archived CRS Report RL33351, Immigration Enforcement Within the United States,
coordinated by (name redacted), and CRS Report R42057,
Interior Immigration Enforcement: Programs Targeting
Criminal Aliens, by (name redacted) and (name redacted).
55
ICE, Congressional Budget Justification FY2015, pp. 52-53.
56
Alien is a term in U.S. immigration law that is synonymous with foreign national and noncitizen.
57
See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by (name redacted).
58
Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). See CRS Report R43097,
Comprehensive Immigration Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744, by (name redac
ted). CRS Report R43782,
Executive Discretion as to Immigration: Legal Overview, by (name redacted) and
(name redacted).
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The President’s Immigration Accountability Executive Action of November 20, 2014
more than 180 days and then depart, inadmissible to the country for a specified period of time.
These provisions are known as the 3- and 10-year bars. Through the President’s executive action
of November 20, 2014, the Obama Administration would be providing eligibility for two forms of
temporary immigration relief—deferred action and parole—for certain segments of the
unauthorized population, and would expand the availability of certain types of waivers of the
unlawful presence grounds of inadmissibility in the INA.59
Deferred Action
DHS defines deferred action as “a discretionary determination to defer removal action of an
individual as an act of prosecutorial discretion.”60 In 2012, in the absence of congressional action
on DREAM Act legislation, DHS issued a memorandum announcing that certain unauthorized
individuals who were brought to the United States as children and meet other criteria would be
considered on a case-by-case basis for deferred action for two years, subject to renewal.61 The
eligibility criteria established for this initiative, known as deferred action for childhood arrivals,
or DACA, were similar to those for relief in DREAM Act bills. Among the DACA criteria were
(1) being under age 16 at time of entry into the United States; (2) residing continuously in the
United States since June 15, 2007; and (3) being below age 31 on June 15, 2012. The DACA
initiative is administered by DHS’s U.S. Citizenship and Immigration Services (USCIS). Aliens
apply for employment authorization at the same time that they submit their applications for
consideration of DACA.62
On November 20, 2014, DHS Secretary Johnson announced an expansion of the original DACA
initiative and the establishment of another DACA-like process to exercise prosecutorial discretion
for another subgroup of unauthorized aliens in the United States.63
59
For a discussion of related legal issues, see CRS Report R43798, The Obama Administration’s November 2014
Immigration Initiatives: Questions and Answers, by (name redacted); and CRS Report R43782, Executive Discretion
as to Immigration: Legal Overview, by (name redacted) and (name redacted).
60
U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Consideration of Deferred
Action for Childhood Arrivals Process, Frequently Asked Questions, http://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-process/frequently-asked-questions. For additional information on prosecutorial
discretion and deferred action, see CRS Report R43782, Executive Discretion as to Immigration: Legal Overview, by
(name redacted) and (name redacted), and CRS Report R42924,
Prosecutorial Discretion in Immigration
Enforcement: Legal Issues, by (name redacted) and (name redacted).
61
U.S. Department of Homeland Security, Memorandum to David V. Aguilar, Acting Commissioner, U.S. Customs
and Border Protection, Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, John Morton,
Director, U.S. Immigration and Customs Enforcement, from Janet Napolitano, Secretary of Homeland Security,
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15,
2012.
62
See CRS Report R43747, Deferred Action for Childhood Arrivals (DACA): Frequently Asked Questions, by (name re
dacted).
63
U.S. Department of Homeland Security, Memorandum to Leon Rodriguez, Director, U.S. Citizenship and
Immigration Services, Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil
Kerlikowske, Commissioner, U.S. Customs and Border Protection, from Jeh Charles Johnson, Secretary of Homeland
Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children
and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents, November 20, 2014.
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The President’s Immigration Accountability Executive Action of November 20, 2014
Expansion of Eligibility for DACA
The 2014 DHS memorandum on prosecutorial discretion directs USCIS to make specified
changes to the DACA initiative that expand the pool of potential beneficiaries, as follows:
•
elimination of the “below age 31 on June 15, 2012” requirement;
•
advancement of the required starting date of continuous residence from June 15,
2007, to January 1, 2010; and
•
extension of the initial grant and renewal periods for DACA and accompanying
employment authorization from two to three years.
In the memorandum, DHS directs USCIS to begin accepting applications under the expanded
DACA parameters in 90 days.
Establishment of the New Deferred Action Process
In the memorandum, the DHS Secretary further directs USCIS to establish a DACA-like process
for exercising prosecutorial discretion toward another group of unauthorized individuals—parents
of U.S. citizens or LPRs—who meet specified criteria. In addition to not having a lawful
immigration status on November 20, 2014, a potential beneficiary must:
•
be the parent of a U.S. citizen or LPR;
•
have resided continuously in the United States since before January 1, 2010;
•
be physically present in the United States on November 20, 2014, and at the time
of making a request for consideration of deferred action with USCIS;
•
not be an enforcement priority; and
•
not present any other factors that make the grant of deferred action inappropriate.
The memorandum specifies that, as under DACA, applicants would apply for employment
authorization at the same time that they submit their applications for consideration of deferred
action. Grants of deferred action and accompanying work authorization under this process would
be valid for a three-year period. In the memorandum, the DHS Secretary directs USCIS to begin
accepting applications under the new deferred action process within 180 days.
Deferred action is also addressed in another DHS memorandum where the DHS Secretary directs
USCIS to consider granting deferred action to unauthorized family members of U.S. military
servicemembers and veterans who are not eligible for parole-in-place (see “Parole”).64
Parole
The INA authorizes the DHS Secretary to “parole into the United States temporarily under such
conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or
64
U.S. Department of Homeland Security, Memorandum to Leon Rodriguez, Director, U.S. Citizenship and
Immigration Services, from Jeh Charles Johnson, Secretary of Homeland Security, Families of U.S. Armed Forces
Members and Enlistees, November 20, 2014.
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The President’s Immigration Accountability Executive Action of November 20, 2014
significant public benefit any alien applying for admission into the United States.”65 Parole does
not constitute formal admission to the United States; an individual granted parole is still
considered an applicant for admission. Although parole is used most often to allow an alien who
is outside the United States to enter the country, it also has been granted to unauthorized aliens
who are physically present in the United States but who have never been lawfully admitted.66
Parole granted to those present in the United States is known as parole-in-place. Another
procedure, advance parole, may be authorized by USCIS to enable an alien in the United States to
travel abroad and, upon return, be considered for parole.
Expansion of Use of Parole-in-Place for Military Families
Ongoing DHS policy makes certain family members of U.S military servicemembers and
veterans eligible for parole-in-place. Covered family members are spouses, children, and parents
of active duty members—and former members—of the U.S. Armed Forces and the Selected
Reserve of the Ready Reserve.67 In his November 20, 2014, memorandum, the DHS Secretary
reported that the Department of Defense (DOD) has requested that DHS expand the application of
its military parole-in-place policy to cover family members of U.S. citizens and LPRs who seek
to enlist in the U.S. Armed Forces.68 In the memorandum, the Secretary directed USCIS to issue
new policies on the use of parole-in-place for certain spouses, children, and parents of U.S.
citizens and LPRs seeking to enlist.
Advance Parole
The November 20, 2014, DHS memorandum Directive to Provide Consistency Regarding
Advance Parole addresses a Board of Immigration Appeals (BIA)69 decision concerning advance
parole and one of the grounds of inadmissibility in the INA related to unlawful presence.70 In the
Matter of Arrabally, the BIA decided that “individuals who travel abroad after a grant of advance
parole do not effectuate a ‘departure ... from the United States’ within the meaning of [INA]
section 212(a)(9)(B)(i).”71 Under INA Section 212(a)(9)(B)(i)(1), an alien who has been
65
INA §212(d)(5)(A).
Individuals previously lawfully admitted to the United States, even if no longer in a lawful immigration status, are
not considered eligible for parole. For this reason, as discussed above, the memorandum directs USCIS to consider the
availability of deferred action for unauthorized family members of military servicemembers and veterans who were
previously lawfully admitted to the United States.
67
See U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Parole of Spouses, Children
and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former
Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on
Inadmissibility under Immigration and Nationality Act § 2 l 2(a)(6)(A)(i), November 15, 2013.
68
U.S. Department of Homeland Security, Memorandum to Leon Rodriguez, Director, U.S. Citizenship and
Immigration Services, from Jeh Charles Johnson, Secretary of Homeland Security, Families of U.S. Armed Forces
Members and Enlistees, November 20, 2014.
69
The Board of Immigration Appeals in the Department of Justice is the highest administrative body for interpreting
and applying immigration laws. BIA decisions are binding on all DHS officers and immigration judges unless modified
or overruled by the Attorney General or a federal court.
70
The INA enumerates grounds of inadmissibility—grounds upon which aliens are ineligible for visas and admission to
the United States. For an overview of the INA grounds of inadmissibility, see CRS Report R43589, Immigration: Visa
Security Policies, by (name redacted), p. 5.
71
U.S. Department of Homeland Security, Memorandum to Stevan E.Bunnell, General Counsel, Office of the General
Counsel, Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, Thomas S. Winkowski, Acting
(continued...)
66
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unlawfully present in the United States for more than 180 days but less than 1 year, voluntarily
departs, and seeks admission within three years is inadmissible (3-year bar); and under INA
Section 212(a)(9)(B)(i) (2), an alien who has been unlawfully present in the United States for 1
year or more and seeks admission within 10 years of such alien’s departure or removal date is
inadmissible (10-year bar). If, in accordance with the Arabally decision, travel on advance parole
does not constitute a departure, then the 3- and 10-year bars on admissibility would not be
triggered in such cases. In the DHS memorandum, the DHS Secretary provides notice that he has
asked the DHS General Counsel to issue legal guidance clarifying that “in all cases when an
individual physically leaves the United States pursuant to a grant of advance parole, that
individual shall not have made a ‘departure’ within the meaning of section 212(a)(9)(B)(i) of the
INA.”
Provisional Unlawful Presence Waivers
The INA provides for specified family members of U.S. citizens or LPRs and specified categories
of workers to be admitted to the United States for permanent residence as LPRs. The process of
becoming an LPR through either the family-based or employment-based route has multiple
steps.72 In most cases, the sponsoring family member or employer must file an immigrant visa
petition on behalf of the alien with USCIS.73 Among the general requirements for obtaining a visa
or gaining lawful admission to the United States is that an individual must be admissible to the
country. In other words, the individual cannot be inadmissible under the enumerated grounds of
inadmissibility in the INA (see “Advance Parole”). Some grounds of inadmissibility are subject to
exceptions and waivers.
Unauthorized aliens in the United States with approved immigrant visa petitions may face
difficulties in obtaining LPR status. The process of becoming an LPR from within the United
States is known as adjustment of status. The main adjustment of status provision in the INA74
applies to aliens who have been inspected and admitted, or paroled, into the United States or who
qualify for classification under the Violence Against Women Act (VAWA) and who meet other
specified requirements. These requirements include that (1) the alien is the beneficiary of an
approved immigrant visa petition; (2) an immigrant visa is immediately available;75 and (3) the
alien is admissible to the United States. Except for VAWA cases, unauthorized aliens who entered
the United States without inspection are ineligible to adjust to LPR status under the main INA
(...continued)
Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border
Protection, from Jeh Charles Johnson, Secretary of Homeland Security, Directive to Provide Consistency Regarding
Advance Parole, November 20, 2014.
72
See CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview, by (name redac
ted).
73
There is no statutory restriction on submitting a visa petition on behalf of an alien who is in the United States without
a lawful immigration status.
74
INA §245(a).
75
Spouses and minor children of U.S. citizens and parents of adult U.S. citizens, designated as “immediate relatives”
under the family-based immigration system, do not have to wait for a visa number to become available. Other familybased immigrants are subject to a complex set of preference categories and numerical limits, and must wait for an
immigrant visa number to be immediately available before they can apply for a visa..
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adjustment of status provision. Unauthorized aliens who initially were admitted or paroled into
the country are generally ineligible to adjust status unless they qualify for an exception.76
The alternative to adjusting status in the United States is for the alien to travel to his or her home
country to apply for a visa at a U.S. embassy or consulate once a visa number becomes
immediately available. If a visa is issued, the alien can use it to gain lawful admission to the
United States as an LPR. If, however, an unauthorized alien returns home to apply for a visa, the
Department of State (DOS) consular officer who is considering the visa application may find that
the alien is inadmissible to the United States for 3 or 10 years based on the alien’s prior unlawful
presence in the United States, and thereby ineligible for a visa (see “Advance Parole“).
A prospective immigrant who is found to be ineligible for a visa by DOS based on his or her prior
unlawful presence may be eligible for a waiver. Under INA Section 212(a)(9)(B)(v), DHS has
discretionary authority to grant an alien a waiver if the alien is the spouse or son or daughter of a
U.S. citizen or LPR, and it is established that refusal of admission to the alien would result in
extreme hardship to the citizen or LPR spouse or parent. Until recently, an alien had to wait until
he or she received an ineligibility finding from DOS during the overseas immigrant visa process
before applying for a waiver, if eligible.
In 2013, USCIS issued a new rule that made changes to the unlawful presence waiver application
process for certain spouses and minor children of U.S. citizens by establishing a provisional
unlawful presence waiver. Under the rule, a beneficiary of an approved immigrant visa petition
can apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility
while still in the United States, if the alien meets all the applicable requirements, including
demonstrating that a U.S. citizen spouse or parent would experience extreme hardship if the alien
were denied admission to the United States. A recipient of a provisional waiver can then depart
the United States to attend an immigrant visa interview with a DOS consular officer abroad. If the
consular officer determines that the applicant, given the approved waiver, is admissible to the
United States and eligible for a visa, the officer may issue the immigrant visa, which the
individual can present at a port-of-entry to gain lawful admission to the United States.
Expansion of Eligibility for Provisional Unlawful Presence Waivers
As noted, DHS has statutory discretionary authority to grant an unlawful presence waiver to an
alien who is the spouse or son or daughter of a U.S. citizen or LPR. Under current regulations,
however, eligibility for a provisional waiver is limited to spouses and minor children of U.S.
citizens. As part of the President’s executive action, the DHS Secretary directed USCIS to expand
eligibility for provisional unlawful presence waivers to all statutorily eligible groups for whom an
immigrant visa is immediately available.77 The additional classes to be covered would be adult
children of U.S. citizens; and spouses, minor children, and adult children of LPRs.
76
For example, there is an exception for the spouses and children of U.S. citizens and the parents of adult U.S. citizens
(INA §245(c)). Another provision (INA §245(i)), which was last updated in 2000, enables aliens who entered the
United States unlawfully to adjust status provided they meet other requirements. Among the requirements, the alien
must be the beneficiary of a petition or application filed by April 30, 2001.
77
U.S. Department of Homeland Security, Memorandum to Leon Rodriguez, Director, U.S. Citizenship and
Immigration Services, from Jeh Charles Johson, Secretary of Homeland Security, Expansion of the Provisional Waiver
Program, November 20, 2014.
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Clarification of Extreme Hardship Standard
In order to receive an unlawful presence waiver under INA Section 212(a)(9)(B)(v), an applicant
must demonstrate that refusing to admit him or her to the United States would result in extreme
hardship to a citizen or LPR spouse or parent. The term extreme hardship is not defined in the
INA. In the Expansion of the Provisional Waiver Program memorandum, the DHS Secretary
directs USCIS to clarify the factors it considers in making a determination about extreme
hardship and “to consider criteria by which a presumption of extreme hardship may be
determined to exist.”
Discussion
These provisions of the President’s executive action would offer different types of immigration
relief to different subgroups of the unauthorized population. The beneficiary groups reflect the
general priority the U.S. immigration system gives to preserving the unity of the immediate
families of U.S. citizens and LPRs. None of these provisions of the President’s executive action
would directly grant beneficiaries a lawful immigration status—only congressional action can
confer immigration status.
The expansion of the provisional unlawful presence waiver program to specified relatives of U.S.
citizens and LPRs—spouses and minor children of LPRs and adult children of U.S. citizens and
LPRs—with approved immigrant visa petitions could help facilitate these individuals’ acquisition
of LPR status. Beneficiaries of approved immigrant petitions who are unable to adjust status in
the United States would still need to return to their home countries in order to pursue LPR status.
Before leaving the United States to apply for a visa abroad, however, an eligible individual could
apply for and receive a provisional unlawful presence waiver. During the overseas visa process, if
a consular officer determines that the individual is subject to a 3- or 10-year bar on admission—
and that no other grounds of inadmissibility apply—the individual could use the waiver to obtain
a visa and gain admission to the United States as an LPR.
The executive action on advance parole also would address the 3- and 10-year bars, but in a
different way. It effectively would make the 3- and 10-year bars inapplicable in cases in which an
individual leaves the United States after being granted advance parole and then seeks to return.
The expansion of the military parole-in-place program would enable eligible spouses, children,
and parents of U.S. citizens and LPRs who seek to enlist in the U.S. Armed Forces to be granted
parole. Although parole is not considered an immigration status, an individual with parole can
adjust to LPR status in the United States provided that he or she meets the applicable
requirements (see “Provisional Unlawful Presence Waivers”).
The expansion of eligibility for DACA and the establishment of a new deferred action process for
the unauthorized parents of U.S. citizens and LPRs who meet specified requirements could enable
individuals in the newly covered groups to remain in the United States and, if granted
employment authorization, to work legally. During the period of deferred action, these individuals
would have protection from removal. They would be in a period of stay authorized by DHS and
would be considered to be lawfully present for admissibility purposes. As such, during the period
of deferred action, they would not accrue unlawful presence for admissibility purposes (which is
relevant for application of the 3- and 10-year bars). Individuals granted deferred action would not
be provided with a pathway to a lawful immigration status, however, and DHS has the discretion
to terminate the grant of deferred action at any time.
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High-Skilled Workers
A key principle underlying U.S. immigration policy is facilitating the permanent and temporary
entry of foreign nationals with needed skills. Admitting professional, managerial, and skilled
foreign workers raises a series of policy tensions as the United States attempts to compete
internationally for the most talented workers without negatively impacting wages and working
conditions of native workers and students entering the U.S. labor market.78
Permanent Employment-Based Immigration79
Immigrant admissions and adjustments for LPR status are subject to a complex set of numerical
limits and preference categories that give priority for admission on the basis of family
relationships, needed skills, and geographic diversity. The current employment-based LPR visa
system consists of five numerically limited preference categories:
•
first preference: priority workers who are persons of extraordinary ability in the
arts, the sciences, education, business, or athletics; outstanding professors and
researchers; and certain multinational executives and managers;
•
second preference: members of the professions holding advanced degrees or
persons of exceptional ability;
•
third preference: skilled workers with at least two years training, professionals
with baccalaureate degrees, and unskilled workers in occupations in which U.S.
workers are in short supply;
•
fourth preference: special immigrants who largely consist of religious workers,
certain former employees of the U.S. government, and undocumented juveniles
who become wards of the court; and
•
fifth preference: investors who invest at least $1 million (or less money in rural
areas or areas of high unemployment) to create at least 10 new jobs.
Employers who seek to hire prospective immigrant workers petition USCIS. Employers who seek
to hire prospective employment-based immigrants through the second and third preference
categories also must petition the U.S. Department of Labor (DOL) on behalf of the alien (see
“Labor Certification” below).80
78
CRS Report R43745, Temporary Professional, Managerial, and Skilled Foreign Workers: Legislation in the 113th
Congress, by (name redacted).
79
This section is adapted from archived CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests
and Protections, by (name redacted).
80
Certain second preference immigrants whose admittance is deemed to be “in the national interest” are exempt from
labor certification.
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High-Skilled Temporary Worker Visas81
Temporary visas for professional, managerial, and skilled foreign workers have become an
important gateway for high-skilled permanent immigration to the United States.82 The
Administration contends that employers use temporary worker visas to retain workers as they
wait for LPR visa numbers to become available. If workers’ nonimmigrant visas expire before
their permanent visas become available, such workers must leave the country.83
Over the past two decades, the number of visas issued for temporary employment-based workers
has more than doubled, from just over 400,000 in FY1994 to over 1 million in FY2013.84
Notably, policymakers and advocates have focused on two visa categories in particular: H-1B
visas for professional specialty workers and L visas for intracompany transferees. These two
nonimmigrant visas epitomize the tensions between the global competition for talent and possible
adverse effects on U.S. workers.
Changes to Current Policy
On November 20, 2014, the DHS Secretary released a policy memorandum stating that USCIS
would be producing new regulations and policies designed to “grow our economy and create
jobs” by attracting and retaining highly skilled immigrants.85 The policy changes would affect
employment-based LPR visas; optional practical training (OPT) for foreign students; the L visa
category for intracompany transfers; and select foreign nationals who are inventors, researchers,
and founders of start-up enterprises.86 In addition, the Secretary announced that he would be
publishing a final rule to incentivize employers of current temporary workers to sponsor them for
81
This section is adapted from CRS Report R43735, Temporary Professional, Managerial, and Skilled Foreign
Workers: Policy and Trends, by (name redacted) and (name redacted).
82
Temporary visas are issued for an expressed purpose and a specific period of time. In most cases, the foreign national
must demonstrate they have a “home they have no intention of abandoning” in their native country. For more
background on temporary visas, see archived CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, by (name redacted).
83
U.S. Department of Homeland Security, Memorandum to Leon Rodriquez, Director, U.S. Citizenship and
Immigration Services, and Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, from
Jeh Charles Johnson, Secretary of Homeland Security, Policies Supporting U.S. High-Skilled Business and Workers,
November 20, 2014, p. 2.
84
While the data include some unskilled and low-skilled workers as well as accompanying family members, visas for
managerial, skilled, and professional workers dominate the trends. These data understate the trends in professional,
managerial, and skilled foreign workers, because the State Department does not issue visas to nonimmigrants that
change status within the United States. For example, a foreign national residing in the United States as a student may
convert their status to a temporary nonimmigrant worker without going abroad to obtain a new visa. Bureau of
Consular Affairs, Report of the Visa Office, U.S. Department of State, Table XVI, multiple years.
85
U.S. Department of Homeland Security, Memorandum to Leon Rodriquez, Director, U.S. Citizenship and
Immigration Services, and Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, from
Jeh Charles Johnson, Secretary of Homeland Security, Policies Supporting U.S. High-Skilled Business and Workers,
November 20, 2014 (hereinafter, “the High-Skilled Memorandum”).
86
Previously, the Administration announced other policies with the goal of retaining high-skilled workers. For
example, in May 2014, DHS published a proposed rule to grant work authorization to spouses of H-1B visa holders
with approved petitions for LPR status. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“Employment Authorization for Certain H-4 Dependent Spouses,” 79 Federal Register 26886-26901, May 12, 2014.
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The President’s Immigration Accountability Executive Action of November 20, 2014
LPR status. Concurrently, DOL announced a review of the policies and regulations related to
labor certification.87
Preventing Visa Retrogression88
As discussed above, a complex set of numerical limits and preference categories dictates how
many and which persons may become LPRs in a given year. DOS is responsible for allocating the
visas based on family- and employment-based preference categories and uniform per-country
limits. DOS must calculate when a visa number is available for a specific foreign national with an
approved immigrant petition, allowing that foreign national to adjust to LPR status if they are in
the United States or receive their LPR visa if they are outside the country. Several years ago,
“accounting problems” between USCIS’s processing of LPR adjustments of status in the United
States and Consular Affairs’ processing of LPR visas abroad became apparent.89 This difference
unexpectedly lengthened the wait for a visa for some foreign nationals with approved LPR
applications (i.e., visa retrogression).90
In the High-Skilled Memorandum, the Secretary stated that USCIS should continue to work with
DOS to make sure that all immigrant visas are allocated when there is demand for such visas, and
improve the system for determining when visas become available. DOS reportedly has agreed to
modify the visa bulletin to clarify when a person’s visa number will become available.
Labor Certification
The INA bars the admission of prospective immigrants who seek to enter the United States to
perform skilled or unskilled labor, unless the Secretary of Labor certifies to the Secretaries of
State and Homeland Security that such foreign workers will not displace or adversely affect the
working conditions of U.S. workers.91 All labor certification applications (LCAs) for aliens
seeking LPR status are processed through DOL’s Program Electronic Review Management
(PERM) labor certification system.92 In FY2014, employers reportedly submitted over 70,000
PERM applications requesting foreign workers, and the majority of the job openings were for
87
Department of Labor, Department of Labor to Pursue Modernized Recruitment and Application Requirements for the
PERM Program, Fact Sheet, Washington, DC, November 20, 2014.
88
This section is adapted from CRS Report R42048, Numerical Limits on Employment-Based Immigration: Analysis of
the Per-Country Ceilings, by (name redacted).
89
Ibid.
90
Visa retrogression occurs when visa priority dates moved backward in time rather than forward in time. Most
recently, in October 2014, a visa retrogression occurred in the second employment-based preference category for India.
See Department of State, Visa Bulletin, Immigrant Numbers for November 2014, Washington, DC, October 9, 2014.
91
INA §212(a)(5). Labor certification generally refers to the process in which employers must document in the
application that certain conditions have been met, including that the employer has attempted to recruit of U.S. workers.
As part of this process, the employer must also document the wages, working conditions, and benefits to be provided to
foreign workers, thereby permitting DOL to certify that those conditions have been met. Labor attestation refers to a
process in which employers attest that such conditions have been met but do not have to submit documentation with the
application. Employers instead must retain documentation showing that the necessary conditions have been satisfied.
For more information, see CRS Report R43223, The Framework for Foreign Workers’ Labor Protections Under
Federal Law, by (name redacted) and (name redacted).
92
The Program Electronic Review Management (PERM) regulations were published on December 27, 2004, after
initially being proposed in May 2002. The stated goals of PERM are to streamline the labor certification process and
reduce fraudulent filings. Federal Register, vol. 69, no. 247, Dec. 27, 2004, p. 77325.
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professional occupations in Information Technology and Science.93 Under the President’s
executive action, DOL would review the PERM program and relevant regulations, with the goal
of making the program more responsive to changes in the national work force.94
Changing Jobs
Currently, employees with pending employment-based LPR visa applications may change jobs
without jeopardizing their application only if the new job or position is in a “same or similar”
occupational classification. Reportedly, workers often will not accept promotions or change
employers due to fear of invalidating their applications.95 Under the High-Skilled Memorandum,
USCIS was directed to consider amending regulations to ensure that long-standing visa petitions
are not invalidated in cases where the employee seeks to change jobs or employers. Specifically,
the DHS Secretary directed USCIS to issue a policy memorandum that provides guidance on the
definition of “same or similar” occupational classification.
National Interest Waiver
Generally, foreign nationals attempting to immigrate under the second and third employmentbased preference categories must be sponsored by an employer, who must certify that the foreign
national is not displacing U.S. workers. Under the INA, certain foreign nationals with advanced
degrees or exceptional ability may apply for LPR status without an employer sponsor if it is in the
national interest.96 This is known as the “national interest waiver.”97 According to the
Administration, the waiver is underutilized and limited guidance exists on its use. In the High
Skilled Memorandum, the DHS Secretary directed USCIS to issue guidance or regulations
clarifying the circumstances under which the national interest waiver can be used.
Start Up Visas
Some have criticized the fifth-preference employment-based (EB-5) visa category for not
allowing its applicants, who generate business ideas and obtain investor backing to launch them,
to petition for LPR status.98 In the 113th Congress, House-passed H.R. 2131 and Senate-passed S.
93
Department of Labor, Department of Labor to Pursue Modernized Recruitment and Application Requirements for the
PERM Program, Fact Sheet, Washington, DC, November 20, 2014.
94
Specifically DOL will seek input on: options for identifying labor force shortages and surpluses and methods for
aligning domestic worker recruitment requirements with demonstrated shortages and surpluses; methods to modernize
the U.S. worker recruitment requirement; processes to clarify employer obligations to insure PERM positions are fully
open to U.S. workers; ranges of processing times and possibilities for premium processing; and the application
submission and review process. Ibid.
95
The High-Skilled Memorandum, p. 5.
96
INA §203(b)(2)(B).
97
Because no statutory or regulatory definition of “national interest” exists, USCIS relies on a 1998 Administrative
Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver.
See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (“NYSDOT”). U.S.
Citizenship and Immigration Services, National Interest Waiver, Washington, DC.
98
For an example of this argument, see Amar Toor, “Can Obama’s immigration reform stop Silicon Valley’s brain
drain?,” The Verge, January 30, 2013. Under the EB-5 category, the money invested by the foreign national must be
legally owned by the investor. Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm’r 1998).
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744 would have, under certain circumstances, allowed foreign nationals who received investment
money from qualified investors to apply for LPR status.
The DHS Secretary, through the High-Skilled Memorandum, directed USCIS to create a program
using the “significant public benefit” parole authority99 to allow certain high-skilled foreign
nationals to enter or remain in the United States. The program would grant parole on a case-bycase basis to investors, researchers, and founders of start-up enterprises who may not qualify for
the public interest waiver or EB-5 status, but who have secured “substantial” financing from U.S.
investors or who “otherwise hold the promise of innovation and job creation through the
development of new technologies or the pursuit of ‘cutting edge’ research.”
According to the memorandum, the grant of parole would temporarily allow these foreign
nationals to pursue research, new ideas, and businesses in the United States rather than abroad,
and give them time to secure temporary or permanent immigration statuses. Regulations to
implement this program must include income and resource requirements. In addition, those who
receive parole under this program would, reportedly, be ineligible for federal public benefits100
and premium tax credits under the Affordable Care Act.101
Optional Practical Training (OPT)
During or after completing their undergraduate or graduate studies, foreign students on F-1 visas
are permitted to participate in employment known as Optional Practical Training (OPT).102 OPT
is temporary employment that is directly related to an F-1 student’s major area of study.
Generally, an F-1 foreign student may work up to 12 months in OPT status. In 2008, DHS
expanded the OPT work period to 29 months for F-1 students in STEM fields.103
The High-Skilled Memorandum directed USCIS and ICE to develop regulations to expand the
number of degree programs eligible for OPT, and to extend the time period and use of OPT for
STEM students and graduates. The new policy would also require the OPT program to have
stronger ties to degree-granting institutions to ensure that a student’s OPT furthers his or her
course of study in the United States. In addition, the new policy would have to be consistent with
U.S. worker protections.
99
INA §212(d)(5).
See CRS Report RL33809, Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends, by
(name redacted).
101
See CRS Report R43561, Treatment of Noncitizens Under the Affordable Care Act, by (name redacted) and (name red
acted).
102
For more on OPT, see archived CRS Report R42530, Immigration of Foreign Nationals with Science, Technology,
Engineering, and Mathematics (STEM) Degrees , by (name redacted).
103
To qualify for the 17-month extension, F-1 students must have received STEM degrees included on the STEM
Designated Degree Program List, be employed by employers enrolled in E-Verify, and have received an initial grant of
post-completion OPT related to such a degree (i.e., already approved for 12 months in OPT). 8 C.F.R. 214.2(f)(10). EVerify is an electronic employment eligibility verification program that U.S. employers voluntarily use to confirm the
new hires’ employment authorization through Social Security Administration and, if necessary, DHS databases. CRS
Report R40446, Electronic Employment Eligibility Verification, by (name redacted).
100
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L Visas104
Current law permits intracompany transferees to enter the United States on a nonimmigrant L visa
that is designed for executives, managers, or employees with specialized knowledge of a firm’s
products. The L visa permits multinational firms to transfer top-level personnel to their locations
in the United States for up to seven years.105 The INA does not require firms wishing to bring L
intracompany transfers into the United States to demonstrate that U.S. workers will not be
adversely affected in order to obtain L visas.
The L visa category is considered essential to retaining and expanding international businesses in
the United States. Some, however, have raised concerns that intracompany transferees on the L
visa may displace U.S. workers who had been employed in those positions for these firms in the
United States. Others contend that the L visa has become a substitute for the H-1B visa, noting
that L visa employees are often comparable in skills and occupations to H-1B workers yet lack
the latter’s labor market protections. These concerns have often been raised with certain
outsourcing and information technology firms that employ L visa workers as subcontractors
within the United States. A related concern is that the unchecked use of L visas could foster the
transfer of STEM and other high-skilled professional jobs overseas.106 After investigating the L
visa, the DHS Inspector General offered this assessment: “That so many foreign workers seem to
qualify as possessing specialized knowledge appears to have led to the displacement of American
workers, and to what is sometimes called the ‘body shop’ problem.”107
In the High-Skilled Memorandum, the DHS Secretary directed USCIS to issue a policy clarifying
the meaning of “specialized knowledge” for L visa qualification. Reportedly, the goal of the new
policy guidance would be to yield more consistent adjudication outcomes.108
Discussion
The Administration did not provide details about the proposed policy changes related to highskilled workers, but rather directed agencies to develop policies and regulations in these areas.
Until such details are clarified, the potential impact of the changes remains unclear.
104
This section is adapted from CRS Report R43745, Temporary Professional, Managerial, and Skilled Foreign
Workers: Legislation in the 113th Congress, by (name redacted).
105
See CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and Protections, by (name redac
ted).
106
For historical background, see archived CRS Report RL32030, Immigration Policy for Intracompany Transfers (L
Visa): Issues and Legislation, by (name redacted).
107
Office of the Inspector General, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, U.S.
Department of Homeland Security, OIG-06-22, January 2006, p. 9.
108
U.S. Department of Homeland Security, Memorandum to Leon Rodriquez, Director, U.S. Citizenship and
Immigration Services, and Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, from
Jeh Charles Johnson, Secretary of Homeland Security, Policies Supporting U.S. High-Skilled Business and Workers,
November 20, 2014, p. 4.
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Integration and Naturalization
Immigrant Integration
Immigrant integration refers to the process by which immigrants become socially, economically,
culturally, and politically integrated into American society.109 The United States admits for
permanent residence, and processes for citizenship, the largest proportion and absolute number of
foreign nationals of any other major immigrant-receiving nation. As the foreign-born population
in the United States increases—41.3 million persons or 13.1% of the total U.S. population in
2013—federally funded immigrant integration programs take on greater prominence.
Unlike other major immigrant-receiving nations, the United States has no national policy or
dedicated executive branch office focused on coordinating immigrant integration efforts across
federal agencies.110 Federal immigrant integration programs take direct and indirect forms. Direct
forms include the Department of Education’s English Language Acquisition Grants and Migrant
Education Programs, and the DHS Office of Citizenship’s Immigrant Integration and Citizenship
Program. Indirect forms are more numerous and often provide assistance to mostly low-income
individuals.111 States and localities also contend with immigrant integration, particularly in new
immigrant destination states. Increasing numbers of states and localities grapple with issues of
communication and English language learning as well as law enforcement, education, workforce
development, adult literacy, and health access, among others.
Immigration advocates contend that the size and growth of the foreign-born population and the
need for greater efficiency and integration among federal and state agencies warrants an executive
branch office for immigrant integration.112 A number of task forces have been convened to
address this issue.113 Immigration advocates contend, however, that such proposals must go
farther by establishing a federal office to coordinate and facilitate immigrant integration
109
The term immigrant is synonymous with lawful permanent resident (LPR), a person who has been legally admitted
to the United States to reside permanently.
110
Jeb Bush, Thomas F. McLarty III, and Edward Alden, U.S. Immigration Policy, Council on Foreign Relations,
Independent Task Force Report No. 63, Washington, DC, 2009, p. 80 (hereinafter U.S. Immigration Policy, 2009.)
111
Examples include the Department of Education’s Upward Bound Program, which facilitates college enrollment
though academic preparation for first-generation college students from low-income families, and the Department of
Labor Employment and Training Administration’s National Farmworker Jobs Program, which helps seasonal
farmworkers and their families attain greater economic stability.
112
Attempts to create an office can be seen in H.R. 1617 introduced during the 112th Congress which sought to both
rename USCIS’s Office of Citizenship the Office of Citizenship and Immigrant Integration and to expand its mission
accordingly.
113
In 2006, President George W. Bush initiated the Task Force on New Americans as an inter-agency effort to help
immigrants “learn English, embrace the common core of American civic culture, and fully become American.” The
Task Force worked to develop more cooperative federal approach to assimilation and included representatives from 20
federal agencies. See http://www.uscis.gov/archive/archive-news/fact-sheet-task-force-new-americans. In June 2010
the White House Domestic Policy Council formed the Interagency Working Group on the Federal Role of Immigrant
Integration to assess the roles and equities of the federal government in promoting immigrant integration and to better
coordinate integration efforts across agencies. President Barack Obama’s proposed 2010 budget included a $10 million
allocation for a new Immigrant Integration Program in USCIS’ Office of Citizenship that would have established a
program devoted exclusively to helping legal immigrants transition into their new communities. See U.S. Government
Accountability Office, Immigrant Integration: U.S. Citizenship and Immigration Services Could Better Assess Its Grant
Program, GAO-12-274, Washington, DC, December 2011.
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nationally in a more comprehensive manner.114 The Senate’s comprehensive immigration reform
bill, S. 744, included such broader provisions.115
The President’s executive action would establish an interagency “White House Task Force on
New Americans” with two primary objectives: (1) identify, promote, and expand immigrant
integration best practices within states and localities; and (2) help determine steps that federal
agencies can take to improve their own immigrant integration efforts.116 Other functions outlined
within the action include providing technical assistance and training; collecting and disseminating
related data and information; soliciting recommendations from nonprofit organizations,
government officials, and other stakeholders; and monitoring equitable access to integration
programs. The task force was expected to provide the President with recommendations to further
the civic, economic, and linguistic integration of new Americans within four months and an
implementation status report within a year.
Encouraging Naturalization
Naturalization, the process that grants U.S. citizenship to LPRs, is often viewed as a milestone for
immigrants and a measure of their socioeconomic integration and assimilation to the United
States. Practically, naturalized immigrants gain important benefits, including the right to vote,
security from deportation in most cases, access to certain public-sector jobs, and the ability to
travel with a U.S. passport.117 U.S. citizens are also advantaged over LPRs for sponsoring
relatives to immigrate to the United States.
Despite the clear benefits of U.S. citizenship status over LPR status, millions of LPRs who are
eligible to naturalize do not do so. Part of the reason for this may stem from INA requirements for
naturalization that include five years of continuous residence in the United States, possession of
“good moral character” and English language competency, and the passing of a U.S. government
and history examination as part of a naturalization interview.118
Naturalization applicants must also pay a fee, which some observers argue hinders LPRs from
acquiring citizenship.119 USCIS currently charges $680 to process naturalization petitions. The fee
114
The White House, Presidential Memorandum, Creating Welcoming Communities and Fully Integrating Immigrants
and Refugees, November 21, 2014.
115
S. 744 would have renamed USCIS’s Office of Citizenship as the Office of Citizenship and New Americans
(OCNA). OCNA’s functions would have included promoting institutions and providing training and educational
materials on aliens’ citizenship responsibilities and providing general leadership, consultation, and coordination of such
activities across federal agencies and with state and local entities. In coordination with the Task Force on New
Americans (TFNA) established in 2006, OCNA would have: advised USCIS, DHS, and the Domestic Policy Council
on challenges related to immigrant integration; established national integration goals; evaluated federal immigrant
integration efforts; and identified and assessed integration implications of new and proposed immigration policies. In
addition, OCNA would have coordinated with state and local governments on integration issues; coordinated with other
federal agencies to do the same regarding education and English programs; assisted states with new immigrant
integration grant programs; and required a report to Congress every two years. S. 744 §§2511, 2521-2524.
116
The White House, Presidential Memorandum, Creating Welcoming Communities and Fully Integrating Immigrants
and Refugees, November 21, 2014.
117
See CRS Report R43366, U.S. Naturalization Policy, by (name redacted).
118
The INA waives some of these requirements for applicants over age 50 with 20 years of U.S. residency, those with
mental or physical disabilities, and those who have served in the U.S. military.
119
See National Immigration Forum, Making the Naturalization Process Less Daunting by Reforming the USCIS Fee
Structure, Washington, DC, 2011; commentary by the United States Conference of Catholic Bishops, Hebrew
(continued...)
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The President’s Immigration Accountability Executive Action of November 20, 2014
amount raises several issues for Congress, including whether it is sufficiently onerous that it
discourages naturalization, and whether it accurately reflects USCIS’s cost to process
naturalization applications. Empirical studies suggest that the volume of naturalization petitions
filed may be inversely related to the naturalization fee amount,120 although other factors also
explain application volume increases apart from fee increases.121 Immigration advocates have
proposed providing more payment options for naturalization fees and making information about
fee waivers more widely known.122
The President’s executive action directed USCIS to accept credit cards as a payment option for
the naturalization fee, in addition to money orders or checks (which are currently the only
payment options).123 The action also directed USCIS to consider the feasibility of a partial fee
waiver to the naturalization fee. While USCIS offers waivers for some of its immigration services
fees, waivers for the $680 naturalization fee are currently available only to those whose income is
less than or equal to 150% of the federal poverty level. Those with incomes above this level do
not qualify for any waiver and must pay the full $680 fee.
Discussion
How the President’s creation of the White House Task force on New Americans marks a
significant departure from previous federal efforts that explicitly focused on immigrant
integration is unclear. It originated from a presidential executive action and lacked funding from
Congress. While some advances in immigrant integration may result from greater federal
coordination, the actual integration of immigrants into American society—economically,
politically, socially, and culturally—involves considerable time and effort across many policy
areas. Some immigration observers, citing experiences of earlier generations of immigrants, argue
that taxpayers should not be funding government initiatives to foster integration. Others view
some integration programs, such as English language instruction, as valuable investments that
yield positive long-term returns.
(...continued)
Immigrant Aid society, and Immigration Policy Center in National Foundation for American Policy, Reforming the
Naturalization Process, NFAP Policy Brief, August 2011; and Joyce Baldwin, Helping Immigrants Become U.S.
Citizens, Carnegie Corporation of New York, The New Americans Campaign, vol. 7, no. 2, Summer 2013 (hereinafter
“Helping Immigrants, 2013”).
120
Manuel Pastor, Jared Sanchez, and Rhonda Ortiz, et al., Nurturing Naturalization: Could Lowering the Fee Help?,
Center for the Study of Immigrant Integration, University of Southern California, February 2013.
121
See CRS Report R43366, U.S. Naturalization Policy, by (name redacted).
122
See Helping Immigrants 2013 and commentary of the Catholic Conference of Bishops etc. NFAP Policy Brief 2011.
Many also characterize the naturalization application forms and instructions as excessively complex and unclear, with
potential legal consequences for incorrect responses. They contend that prospective naturalization petitioners may be
deterred from applying, and that simplifying the language in the N-400 application and instructions would make the
naturalization process more accessible. See commentary of Mary Giovagnoli, Immigration Policy Center, in National
Foundation for American Policy, Reforming the Naturalization Process, NFAP Policy Brief, August 2011. Others raise
concerns over the naturalization residency requirements which disadvantages LPRs based overseas for employment.
Such individuals must wait until they physically reside in the United States to fulfill the naturalization requirements,
prolonging their time required to naturalize. See commentary of Cyrus D. Mehta and Gary Endelman in National
Foundation for American Policy, Reforming the Naturalization Process, NFAP Policy Brief, August 2011.
123
U.S. Department of Homeland Security, Memorandum to Leon Rodriquez, Director, U.S. Citizenship and
Immigration Services, from Jeh Charles Johnson, Secretary of Homeland Security, “Policies to Promote and Increase
Access to U.S. Citizenship,” November 20, 2014.
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The President’s Immigration Accountability Executive Action of November 20, 2014
Promoting naturalization generally has wide support, and expanding payment options for the
naturalization fee may provide greater convenience for potential naturalization petitioners.
Empirical evidence also suggests that the propensity to naturalize is price sensitive, suggesting
that naturalization fee waiver options may boost naturalization rates among those who otherwise
would not apply. Any such waiver options, however, would require USCIS to make up the
corresponding shortfall in fee revenue through other means, including, possibly, reducing
services, increasing processing times, and increasing other processing fees.
Other Executive Action Initiatives
Modernizing the U.S. Immigrant Visa System
Many agree that the U.S. immigration system contains dysfunctions for those who petition for
immigration services and benefits: it is complicated to understand, redundant, time-consuming,
and costly and burdensome to applicants and businesses. Some argue that the system, which
requires technological infrastructure beyond what its fee structure can support,124 has reached a
level that thwarts effective administration.125
Bureaucratic and legal complexity can be expected of an administrative, technical, and legal
system that handles the range of immigrant circumstances found in the United States, as well as
the corresponding range of goals and objectives of agencies charged with implementing and
enforcing U.S. immigration law. Yet, unlike regularly proposed and attempted overhauls of the
similarly complex tax system, no major attempts have been made to overhaul the U.S.
immigration system to allow it to work more efficiently and expediently.126
USCIS, the DHS agency responsible for processing and adjudicating immigration petitions, has
for several years undertaken a “modernization” program intended to convert itself from an
entirely paper-based agency to a mostly digital platform. A recent review by DHS’s Office of the
Inspector General suggested that the program’s goals have not yet been met.127
On November 21, the White House, as part of the President’s executive action, directed the
Secretaries of State and Homeland Security in consultation with other federal agencies and
stakeholders to recommend ways to (1) improve and streamline the legal immigration system,
emphasizing reforms that reduce government costs, improve services for applicants, reduce
employer burdens, and reduce waste and fraud; (2) ensure that all the visa numbers are used; and
(3) modernize the visa processing technology to reduce redundancy, improve applicants’
124
U.S. Citizenship and Immigration Services is almost entirely funded through processing fees, a budgeting approach
that contains inherent limitations on how much revenue can be raised to support USCIS operations. See CRS Report
RL34040, U.S. Citizenship and Immigration Services’ Immigration Fees and Adjudication Costs: Proposed
Adjustments and Historical Context, by (name redacted).
125
See for example U.S. Immigration Policy, 2009, pp. 90-95.
126
Most recently, for example, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization
Act passed by the Senate in 2013, did not include explicit provisions to modernize the administrative functioning and
infrastructure of USCIS.
127
U.S. Department of Homeland Security, Office of Inspector General, Major Management and Performance
Challenges Facing the Department of Homeland Security, OIG-15-09, November 14, 2014.
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The President’s Immigration Accountability Executive Action of November 20, 2014
experiences, and increase public oversight. The Secretaries are also to establish metrics that can
quantify improvement in these three areas.128
Such reforms, long desired, would become more critical for USCIS if it implements the
President’s executive action. Soliciting recommendations for improving the functioning of the
immigration system may help alleviate some challenges faced by end users. As with other
components of the President’s initiative, it remains to be seen how much can be accomplished
through administrative refinements and the deployment of existing resources without the benefit
of additional funding.
More Consistent Enforcement of Federal Labor, Employment, and
Immigration Laws
In 2012, an estimated 8.1 million unauthorized aliens, representing just over 5% of the U.S.
workforce, were working or looking for work in the United States.129 Lacking proper work
authorization, they are vulnerable to exploitation in a variety of ways and less likely to have
sufficient resources to enforce their rights effectively.130
Three sources of labor protections exist for foreign workers in the United States: (1) conditions
imposed on employers hiring foreign workers through the labor certification-attestation portion of
the petition to admit foreign workers; (2) federal labor laws regarding employer adherence to
requirements for wages and working conditions; and (3) private causes of action that foreign
workers may have under state and local laws.131 DOL, which is responsible for enforcing
minimum wage, overtime pay, and related requirements, focuses a significant percentage of its
enforcement resources on low-wage industries that employ large numbers of immigrant—and
presumably large numbers of unauthorized—workers.132 Among other tasks, ICE is responsible
for investigating immigration law violations related to knowingly hiring unauthorized aliens.133
In April 2009, DHS issued new guidance on immigration-related worksite enforcement that
“reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate
illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.”134 In
December 2011, DHS and DOL signed a revised memorandum of understanding to coordinate
128
The White House, Presidential Memorandum, “Modernizing and Streamlining the U.S. Immigrant Visa System for
the 21st Century,” November 21, 2014.
129
Jeffrey S. Passel and D’Vera Cohn, Unauthorized Immigrant Totals Rise in 7 States, Fall in 14: Decline in Those
From Mexico Fuels Most State Decreases, Pew Research Center, Washington, DC, November 18, 2014, p. 8. In 2012,
the size of the civilian labor force was estimated at 157.7 million according to data from the 2012 American
Community Survey. See “Factfinder” at Census.gov.
130
For example, see Southern Policy Law Center, “Immigrant Justice,” http://www.splcenter.org/what-we-do/
immigrant-justice.
131
Ibid.
132
Unauthorized workers represents relatively large proportions of the workforce in particular industries, such as
agriculture, construction, food handling, and low-skilled services. Jeffrey S Passel and D’Vera Cohn, A Portrait of
Unauthorized Immigrants in the United States, Pew Research Center, Washington, DC, April 14, 2009.
133
INA §274A. These cases also may involve additional violations, such as alien smuggling, document fraud, and
worker exploitation. See. CRS Report R40002, Immigration-Related Worksite Enforcement: Performance Measures,
by (name redacted).
134
U.S. Department of Homeland Security, USCIS fact sheet, Worksite Enforcement Overview, April 30, 2009.
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The President’s Immigration Accountability Executive Action of November 20, 2014
worksite enforcement actions and make them consistent with each agency’s mission.135 Questions
have arisen as to how rigorous and effective DHS’s worksite enforcement efforts are and have
been in past years.136
On November 21, 2014, as part of the President’s executive action, DOL announced the creation
of an inter-agency working group to “promote effective and consistent enforcement of federal
labor, employment, and immigration laws, with the goal of protecting all workers regardless of
legal status.”137 The working group would include representatives from federal agencies
responsible for immigration enforcement and worker protections, including the Departments of
Labor, Homeland Security, and Justice, and the Equal Employment Opportunity Commission and
National Labor Relations Board.
The working group would be broadly tasked with ensuring that (1) current immigration and
employment policies do not dissuade workers from cooperating with law enforcement authorities
in cases of employment violations; (2) federal enforcement authorities are not used by those who
wish to undermine worker protections by enmeshing immigration authorities in labor disputes;
and (3) federal labor, employment, and immigration laws are consistently applied.
As with most of the other elements of the President’s executive action, this initiative would be
implemented without a congressional appropriation or stated source of funding. Hence, it remains
to be seen the extent to which the creation of an inter-agency task force and greater coordination
and planning among and within agencies could improve wages and worksite conditions for
workers vulnerable to exploitation because of their immigration status (or lack thereof).
Expanding Support for Crime Victims
U nonimmigrant status is reserved for victims of certain statutorily specified crimes that occurred
within the United States.138 To qualify for U status, a foreign national must receive certification
from a law enforcement agency that he or she is being or is likely to be helpful in the
investigation and prosecution of the criminal activity.
T nonimmigrant status is reserved for foreign nationals in the United States who are victims of
severe forms of trafficking. To receive it, foreign nationals, with some exceptions, must comply
with reasonable requests for assistance from law enforcement. Law enforcement certification is
optional for T status, unlike for U status, but it serves as important evidence for applicants.139
135
U.S. Department of Labor, Revised Memorandum of Understanding between the Departments of Homeland Security
and Labor Concerning Enforcement Activities at Worksites, December 11, 2011.
136
See for instance, National Immigration Law Center, “DHS Issues “New” Worksite Enforcement Guidelines That
Are Simply More of the Same,” press release, April 30, 2009.
137
Thomas E. Perez, Secretary, U.S. Department of Labor, “Fact Sheet: Establishment of Interagency Working Group
for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws,” November 21, 2014.
138
For more on U and T statuses, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for
Congress, by (name redacted) and (name redacted).
139
Department of Homeland Security U.S. Citizenship and Immigration Services, Information for Law Enforcement
Officials, Immigration Relief for Victims of Human Trafficking and Other Crimes, http://www.uscis.gov/sites/default/
files/USCIS/Resources/Humanitarian%20Based%20Benefits%20and%20Resources/TU_QAforLawEnforcement.pdf.
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The President’s Immigration Accountability Executive Action of November 20, 2014
As part of the President’s executive action, the Department of Labor (DOL) announced that in
early 2015 it would begin exercising its authority to provide law enforcement certification to
trafficking victims applying for T status.140 In addition, DOL would simultaneously expand the
types of crimes for which it certifies to include victims of extortion, forced labor, and foreign
labor contracting fraud.141
The DOL Wage and Hour Division enforces federal labor laws, including the Fair Labor
Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act, and assists with
human trafficking investigations involving violations of these laws. As a result, DOL may
encounter trafficking victims. Some advocates note that DOL’s enforcement of wage and hour
laws could help reveal trafficking and crime victims, as those who engage in labor trafficking or
other criminal activity in the workplace are also likely to violate wage and hour laws.142
Conclusion
The President’s Immigration Accountability Executive Action announced on November 20, 2014,
includes provisions meant to alleviate uncertainty for potentially millions of unauthorized aliens
through deferred action and the use of provisional waivers and parole. It is also intended to revise
enforcement priorities and improve and coordinate strategic initiatives across a range of
immigration policy areas, including border security, high skilled immigration, and naturalization.
Whether this executive action can accomplish these objectives and prompt Congress to pass more
permanent legislative solutions is unclear.
Accomplishing such goals in the face of a potentially resistant Congress may prove challenging.
USCIS, the agency tasked with carrying out sizable portions of the executive action, would be
relying upon an indeterminate amount of additional fee revenue from deferred action petitions to
implement some of these objectives, while other agencies, lacking congressional appropriations,
would be attempting to implement changes to current policies and procedures mostly through
increased coordination and more innovative marshaling of existing resources.
140
Current policy allows DOL’s Wage and Hour Division to certify trafficking victims for U status. While trafficking
victims may be eligible for U status, only victims of severe forms of trafficking may qualify for T status. Department of
Labor, The Department of Labor’s Wage and Hour Division Will Expand Its Support Of Victims of Human Trafficking
and Other Crimes Seeking Immigration Relief from DHS, Fact Sheet, Washington, DC, November 20, 2014; and
Department of Labor, “Secretary’s Order 01-2014,” vol. 79, no. 247 Federal Register 30224, December 24, 2014.
141
Since 2011, DOL has provided law enforcement certification for U visa applications for the following crimes:
trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering.
142
For example, see Alliance to End Slavery and Trafficking, DOL/Department of Wage and Hour, The Need for
Funding and Report Language: $5,000,000 for services for victims of trafficking to implement Section 107(b) of the
TVPA and report language, http://endslaveryandtrafficking.org/fy2014/Department-of-Labor-Department-of-Wageand-Hour.php.
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The President’s Immigration Accountability Executive Action of November 20, 2014
Author Contact Information
(name redacted), Coordinator
Analyst in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Organized Crime and Terrorism
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Immigration Policy
[redacted]@crs.loc.gov, 7-....
Congressional Research Service
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