Immigration Legislation and Issues in the 116th Congress

Changes from June 12, 2020 to June 19, 2020

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Immigration Legislation and Issues in the 116th June June 1219, 2020 , 2020
Congress
Andorra Bruno,
The House and the Senate have considered measures on a variety of immigration issues in the The House and the Senate have considered measures on a variety of immigration issues in the
Coordinator
116th Congress. These issues include border security, immigration enforcement, legalization of 116th Congress. These issues include border security, immigration enforcement, legalization of
Specialist in Immigration Specialist in Immigration
unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions. unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions.
Policy Policy

Several immigration measures were enacted into law. Among them are the Northern Mariana Several immigration measures were enacted into law. Among them are the Northern Mariana
William A. Kandel
Islands Long-Term Legal Residents Relief Act (P.L. 116-24) and the Citizenship for Children of Islands Long-Term Legal Residents Relief Act (P.L. 116-24) and the Citizenship for Children of
Analyst in Immigration Analyst in Immigration
Military Members and Civil Servants Act (P.L. 116-133). Military Members and Civil Servants Act (P.L. 116-133).
Policy Policy

The 116th Congress also enacted immigration provisions as part of larger defense and The 116th Congress also enacted immigration provisions as part of larger defense and
appropriations bills. The National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92) appropriations bills. The National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92)
Jill H. Wilson
includes provisions related to the Afghan special immigrant visa (SIV) program, interior includes provisions related to the Afghan special immigrant visa (SIV) program, interior
Analyst in Immigration Analyst in Immigration
enforcement, Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status enforcement, Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status
Policy Policy

(TPS), naturalization, and Liberian Refugee Immigration Fairness. The FY2019 Emergency (TPS), naturalization, and Liberian Refugee Immigration Fairness. The FY2019 Emergency
Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border

Act (P.L. 116-26) addresses border security and unaccompanied children. The FY2019 Act (P.L. 116-26) addresses border security and unaccompanied children. The FY2019
Consolidated Appropriations Act (P.L. 116-6) extended four immigration programs through the end of FY2019: the EB-5 Consolidated Appropriations Act (P.L. 116-6) extended four immigration programs through the end of FY2019: the EB-5
immigrant investor Regional Center Program, the E-Verify employment eligibility verification system, the Conrad State immigrant investor Regional Center Program, the E-Verify employment eligibility verification system, the Conrad State
program for foreign medical graduates, and the special immigrant religious worker program. The FY2020 Further program for foreign medical graduates, and the special immigrant religious worker program. The FY2020 Further
Consolidated Appropriations Act (P.L. 116-94) extends these same four programs through the end of FY2020. P.L. 116-6 and Consolidated Appropriations Act (P.L. 116-94) extends these same four programs through the end of FY2020. P.L. 116-6 and
P.L. 116-94 also address H-2B visas and the Department of State’s Bureau of Population, Refugees, and P.L. 116-94 also address H-2B visas and the Department of State’s Bureau of Population, Refugees, and ~~Migration~~M igration and and
refugee admissions. P.L. 116-6 additionally includes language on immigration enforcement and the temporary Afghan SIV refugee admissions. P.L. 116-6 additionally includes language on immigration enforcement and the temporary Afghan SIV
program. program.
Multiple immigration-related bills have seen committee or floor action, but have not passed both chambers. Many of these Multiple immigration-related bills have seen committee or floor action, but have not passed both chambers. Many of these
bills address border security and the Department of Homeland Security’s U.S. Customs and Border Protection (CBP). The bills address border security and the Department of Homeland Security’s U.S. Customs and Border Protection (CBP). The
House has passed several related measures, including the Homeland Security Improvement Act (H.R. 2203), the House has passed several related measures, including the Homeland Security Improvement Act (H.R. 2203), the
Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), the Counter Terrorist Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), the Counter Terrorist
Network Act (H.R. 3526), and the Securing America’s Ports Act (H.R. 5273). Border security- and CBP-related bills have Network Act (H.R. 3526), and the Securing America’s Ports Act (H.R. 5273). Border security- and CBP-related bills have
been reported by the House Homeland Security Committee (H.R. 1232, H.R. 1598, H.R. 1639), the House Judiciary been reported by the House Homeland Security Committee (H.R. 1232, H.R. 1598, H.R. 1639), the House Judiciary
Committee (H.R. 5581), and the Senate Homeland Security and Governmental Affairs Committee (S. 731, S. 2750). Committee (H.R. 5581), and the Senate Homeland Security and Governmental Affairs Committee (S. 731, S. 2750).
The House and the Senate have also acted on bills addressing other immigration issues. The House has passed the American The House and the Senate have also acted on bills addressing other immigration issues. The House has passed the American
Dream and Promise Act of 2019 (H.R. 6) on childhood arrivals and individuals with TPS; the Farm Workforce Dream and Promise Act of 2019 (H.R. 6) on childhood arrivals and individuals with TPS; the Farm Workforce
Modernization Act of 2019 (H.R. 5038) on foreign agricultural workers ; and the Fairness for High-Skilled Immigrants Act Modernization Act of 2019 (H.R. 5038) on foreign agricultural workers ; and the Fairness for High-Skilled Immigrants Act
(H.R. 1044) on permanent employment-based immigrants, among other measures. The Senate Judiciary Committee has (H.R. 1044) on permanent employment-based immigrants, among other measures. The Senate Judiciary Committee has
reported a bill (S. 1494) with provisions on unaccompanied children, asylum, refugee admissions, and other topics. reported a bill (S. 1494) with provisions on unaccompanied children, asylum, refugee admissions, and other topics.
This report discusses these and other immigration-related issues that have seen legislative action in the 116th Congress. This report discusses these and other immigration-related issues that have seen legislative action in the 116th Congress.
Department of Homeland Security appropriations are addressed in CRS Report R46113, Department of Homeland Security appropriations are addressed in CRS Report R46113, Department of Homeland Security
Appropriations: FY2020, and, for the most part, are not covered here. , and, for the most part, are not covered here.

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Immigration Legislation and Issues in the 116th Congress

Introduction
The 116th Congress has seen considerable committee and floor action on immigration legislation, The 116th Congress has seen considerable committee and floor action on immigration legislation,
particularly in the House. The House and/or the Senate have acted on bil s addressing a range of particularly in the House. The House and/or the Senate have acted on bil s addressing a range of
immigration issue areas, including border security, immigration enforcement, legalization of immigration issue areas, including border security, immigration enforcement, legalization of
unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions. unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions.
Some of these bil s include amendments to the Immigration and Nationality Act (INA), the basis Some of these bil s include amendments to the Immigration and Nationality Act (INA), the basis
of U.S. immigration law.1 of U.S. immigration law.1
Several immigration provisions were enacted as part of larger appropriations and defense Several immigration provisions were enacted as part of larger appropriations and defense
authorization bil s. These provisions variously address the H-2B visa, U.S. refugee admissions, authorization bil s. These provisions variously address the H-2B visa, U.S. refugee admissions,
Afghan special immigrant visas, and the immigration status of Liberians who are long-time U.S. Afghan special immigrant visas, and the immigration status of Liberians who are long-time U.S.
residents, among other issues. Through FY2019 and FY2020 consolidated appropriations residents, among other issues. Through FY2019 and FY2020 consolidated appropriations
measures, the 116th Congress extended the EB-5 Regional Center Program for immigrant measures, the 116th Congress extended the EB-5 Regional Center Program for immigrant
investors, the E-Verify employment eligibility verification system, and two other immigration investors, the E-Verify employment eligibility verification system, and two other immigration
programs, al of which are now authorized through September 30, 2020. programs, al of which are now authorized through September 30, 2020.
The 116th Congress also enacted stand-alone measures concerning immigration in the The 116th Congress also enacted stand-alone measures concerning immigration in the
Commonwealth of the Northern Mariana Islands and citizenship for children born abroad to Commonwealth of the Northern Mariana Islands and citizenship for children born abroad to
parents who are U.S. military servicemembers or U.S. government employees. This report parents who are U.S. military servicemembers or U.S. government employees. This report
discusses these and other immigration-related measures that have received legislative action in discusses these and other immigration-related measures that have received legislative action in
the 116th Congress.2 the 116th Congress.2
Border Security
The U.S. Department of Homeland Security (DHS), which was established in 2003 in accordance The U.S. Department of Homeland Security (DHS), which was established in 2003 in accordance
with the Homeland Security Act of 2002 (HSA; P.L. 107-296), is charged with protecting U.S. with the Homeland Security Act of 2002 (HSA; P.L. 107-296), is charged with protecting U.S.
borders from weapons of mass destruction, terrorists, smugglers, and unauthorized aliens,3 among borders from weapons of mass destruction, terrorists, smugglers, and unauthorized aliens,3 among
other responsibilities. Operational y, border security includes controlling the 328 official air, land, other responsibilities. Operational y, border security includes controlling the 328 official air, land,
and sea ports of entry (POEs) through which legitimate travelers and commerce enter the country and sea ports of entry (POEs) through which legitimate travelers and commerce enter the country
and patrolling the nation’s land and maritime borders to prevent unlawful entries of people and and patrolling the nation’s land and maritime borders to prevent unlawful entries of people and
goods.4 goods.4
DHS’s U.S. Customs and Border Protection (CBP) is responsible for protecting U.S. international DHS’s U.S. Customs and Border Protection (CBP) is responsible for protecting U.S. international
land borders and coastal shoreline. At POEs, CBP’s Office of Field Operations (OFO) is charged land borders and coastal shoreline. At POEs, CBP’s Office of Field Operations (OFO) is charged
with conducting immigration, customs, and agricultural inspections of travelers seeking with conducting immigration, customs, and agricultural inspections of travelers seeking
admission to the United States. Between POEs, CBP’s U.S. Border Patrol (USBP) is charged with admission to the United States. Between POEs, CBP’s U.S. Border Patrol (USBP) is charged with
enforcing immigration law and other federal laws along the border and preventing unlawful enforcing immigration law and other federal laws along the border and preventing unlawful
entries into the United States. entries into the United States.

1 T he INA is Act of June 27, 1952, ch. 477, 66 Stat. 163. It is codified, as amended, at 8 U.S.C. §1101, et seq. 1 T he INA is Act of June 27, 1952, ch. 477, 66 Stat. 163. It is codified, as amended, at 8 U.S.C. §1101, et seq.
2 For the most part, Department of Homeland Security appropriations are not covered in this report. For that 2 For the most part, Department of Homeland Security appropriations are not covered in this report. For that
information, see CRS Report R46113, information, see CRS Report R46113, Departm ent of Hom eland Security Appropriations: FY2020 . .
3 An alien, as defined in the INA, is any person who is not a citizen or national of the United 3 An alien, as defined in the INA, is any person who is not a citizen or national of the United ~~States~~Stat es (INA §101(a)(3); 8 (INA §101(a)(3); 8
U.S.C. §1101(a)(3)). U.S.C. §1101(a)(3)). Unauthorized alien, as used in this report, refers to a foreign national who does not have a lawful , as used in this report, refers to a foreign national who does not have a lawful
immigration status. T he term includes both a foreign national who enters the United States without inspection and a immigration status. T he term includes both a foreign national who enters the United States without inspection and a
foreign national who enters lawfully but then overstays or otherwise violates the terms of his or her visa or admission. foreign national who enters lawfully but then overstays or otherwise violates the terms of his or her visa or admission.
4 For a discussion of laws governing the admission and exclusion of aliens at the border, see CRS Legal Sidebar 4 For a discussion of laws governing the admission and exclusion of aliens at the border, see CRS Legal Sidebar
LSB10150, LSB10150, Im m igration Laws Regulating the Adm ission and Exclusion of Aliens at the Border. .
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According to CBP data, annual apprehensions of unauthorized migrants between POEs at the According to CBP data, annual apprehensions of unauthorized migrants between POEs at the
U.S. Southwest border reached a 45-year low of about 300,000 in FY2017, but then more than U.S. Southwest border reached a 45-year low of about 300,000 in FY2017, but then more than
doubled over the next two years. In FY2019, Southwest border apprehensions totaled 851,508, doubled over the next two years. In FY2019, Southwest border apprehensions totaled 851,508,
the highest level since FY2007.5 For the first seven months of FY2020, monthly apprehensions at the highest level since FY2007.5 For the first seven months of FY2020, monthly apprehensions at
the southern border have been considerably lower than FY2019 levels.6 the southern border have been considerably lower than FY2019 levels.6
During the FY2017-FY2019 period, as apprehensions at the Southwest border were general y During the FY2017-FY2019 period, as apprehensions at the Southwest border were general y
increasing, there was a notable rise in the number of apprehended migrants from the Northern increasing, there was a notable rise in the number of apprehended migrants from the Northern
Triangle countries of El Salvador, Guatemala, and Honduras. This period also saw changes in the Triangle countries of El Salvador, Guatemala, and Honduras. This period also saw changes in the
demographic composition of migrant flows at the southern border, with persons in family units demographic composition of migrant flows at the southern border, with persons in family units
accounting for more than half of FY2019 apprehensions. While single adults historical y had accounting for more than half of FY2019 apprehensions. While single adults historical y had
represented a large majority of migrant apprehensions at the southern border, in FY2019 persons represented a large majority of migrant apprehensions at the southern border, in FY2019 persons
in family units and unaccompanied alien children together accounted for 65% of those in family units and unaccompanied alien children together accounted for 65% of those
apprehensions.7 apprehensions.7
The increased number of apprehended migrants in FY2019, combined with the changing The increased number of apprehended migrants in FY2019, combined with the changing
characteristics of those migrants, posed considerable chal enges to the federal agencies charged characteristics of those migrants, posed considerable chal enges to the federal agencies charged
with apprehending and processing unauthorized aliens. In Senate testimony in March 2019, the with apprehending and processing unauthorized aliens. In Senate testimony in March 2019, the
CBP Commissioner stated that the numbers and types of arriving migrants constituted a national CBP Commissioner stated that the numbers and types of arriving migrants constituted a national
security and humanitarian crisis.8 As reported in a news article at the time, “CBP has warned for security and humanitarian crisis.8 As reported in a news article at the time, “CBP has warned for
months that it isn’t able to house and process the current population coming into the [United months that it isn’t able to house and process the current population coming into the [United
States], and that it has nowhere to put people between when they turn themselves in to Border States], and that it has nowhere to put people between when they turn themselves in to Border
Patrol agents and when they are released.”9 Patrol agents and when they are released.”9
As noted, Southwest border apprehensions in FY2020, as reported in available data to date, are As noted, Southwest border apprehensions in FY2020, as reported in available data to date, are
wel below FY2019 levels. Among the reasons for this are immigration-related actions taken by wel below FY2019 levels. Among the reasons for this are immigration-related actions taken by
the U.S. government in response to the Coronavirus Disease 2019 (COVID-19) pandemic.10 the U.S. government in response to the Coronavirus Disease 2019 (COVID-19) pandemic.10
The 116th Congress has considered a number of border security-related bil s that address The 116th Congress has considered a number of border security-related bil s that address
treatment of arriving migrants as wel as border security resources and operations. In July 2019, it treatment of arriving migrants as wel as border security resources and operations. In July 2019, it
enacted the FY2019 Emergency Supplemental Appropriations for Humanitarian Assistance and enacted the FY2019 Emergency Supplemental Appropriations for Humanitarian Assistance and
Security at the Southern Border Act (P.L. 116-26) in response to the chal enges posed by large Security at the Southern Border Act (P.L. 116-26) in response to the chal enges posed by large
numbers of arriving migrants, particularly families and children. The act provides funding for numbers of arriving migrants, particularly families and children. The act provides funding for
DHS and the Department of Health and Human Services (HHS), among other federal DHS and the Department of Health and Human Services (HHS), among other federal
departments. It specifies in the DHS title that the appropriated funds can only be used for the departments. It specifies in the DHS title that the appropriated funds can only be used for the
delineated purposes.11 delineated purposes.11

5 See CRS Report R46012, 5 See CRS Report R46012, Immigration: Recent Apprehension Trends at the U.S. Southwest Border. .
6 According to CBP data, Southwest border apprehensions during the first seven months of FY2020 (through April 30, 6 According to CBP data, Southwest border apprehensions during the first seven months of FY2020 (through April 30,
2020) totaled 206,927. T he comparable total for FY2019 was 460,581. CBP data for FY2017 -FY2020 are available at 2020) totaled 206,927. T he comparable total for FY2019 was 460,581. CBP data for FY2017 -FY2020 are available at
https://www.cbp.gov/newsroom/stats/sw-border-migration. https://www.cbp.gov/newsroom/stats/sw-border-migration.
7 See CRS Report R46012, 7 See CRS Report R46012, Immigration: Recent Apprehension Trends at the U.S. Southwest Border. .
8 T estimony of CBP Commissioner Kevin K. McAleenan, prepared for U.S. Congress, Senate8 T estimony of CBP Commissioner Kevin K. McAleenan, prepared for U.S. Congress, Senate Committee on theCommittee on the
Judiciary,Judiciary, Oversight of Custom s and Border Protection’s Response to the Sm uggling of Persons at the Southern
Border, March 6, 2019, https://www.judiciary.senate.gov/imo/media/doc/McAleenan%20T estimony.pdf. , March 6, 2019, https://www.judiciary.senate.gov/imo/media/doc/McAleenan%20T estimony.pdf.
9 Dara Lind, “ T he border is in crisis. Here’s how it got this bad,” 9 Dara Lind, “ T he border is in crisis. Here’s how it got this bad,” Vox, updated June 5, 2019. , updated June 5, 2019.
10 For a discussion of these actions, see CRS Insight IN11308, 10 For a discussion of these actions, see CRS Insight IN11308, COVID-19: Restrictions on Travelers at U.S. Land
Borders; and CRS Legal Sidebar LSB10439, ; and CRS Legal Sidebar LSB10439, Entry Restrictions at the Northern and Southern Borders in Response to
COVID-19. .
11 For further information on the DHS funding in this act, see CRS Report R46113, 11 For further information on the DHS funding in this act, see CRS Report R46113, Department of Homeland Security
Appropriations: FY2020. .
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link to page 8 link to page 8 Immigration Legislation and Issues in the 116th Congress

Treatment of Arriving Migrants
P.L. 116-26 provides additional operational and support funding to CBP, with the majority P.L. 116-26 provides additional operational and support funding to CBP, with the majority
al otted for migrant care and processing facilities. The act stipulates, however, that none of that al otted for migrant care and processing facilities. The act stipulates, however, that none of that
funding wil be made available until CBP establishes policies and training programs “to ensure funding wil be made available until CBP establishes policies and training programs “to ensure
that such facilities adhere to the National Standards on Transport, Escort, Detention, and that such facilities adhere to the National Standards on Transport, Escort, Detention, and
Search.”12 Search.”12
Multiple bil s passed by the House seek to build on the provisions in P.L. 116-26 to further Multiple bil s passed by the House seek to build on the provisions in P.L. 116-26 to further
address standards of care for arriving migrants. One set of measures would require CBP to meet address standards of care for arriving migrants. One set of measures would require CBP to meet
specified needs of migrants in its custody. The Short-Term Detention Standards Act (H.R. 3670) specified needs of migrants in its custody. The Short-Term Detention Standards Act (H.R. 3670)
would amend a provision in the HSA that directs CBP to “make every effort to ensure that would amend a provision in the HSA that directs CBP to “make every effort to ensure that
adequate access to food and water is provided to” individuals it apprehends and detains.13 H.R. adequate access to food and water is provided to” individuals it apprehends and detains.13 H.R.
3670 would revise this provision to require CBP “to make every effort to ensure the provision to 3670 would revise this provision to require CBP “to make every effort to ensure the provision to
an individual apprehended by [CBP] of appropriate temporary shelter with access to bathroom an individual apprehended by [CBP] of appropriate temporary shelter with access to bathroom
and shower facilities, water, appropriate nutrition, hygiene, personal grooming items, and and shower facilities, water, appropriate nutrition, hygiene, personal grooming items, and
sanitation needs.” Among its other provisions, the bil would task the DHS Inspector General and sanitation needs.” Among its other provisions, the bil would task the DHS Inspector General and
the U.S. Comptroller General with conducting regular audits and inspections of CBP intake and the U.S. Comptroller General with conducting regular audits and inspections of CBP intake and
processing procedures for apprehended individuals. Another House-passed bil , the Humanitarian processing procedures for apprehended individuals. Another House-passed bil , the Humanitarian
Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), would Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), would
require CBP to ensure that detainees have access to water, sanitation, and hygiene; food and require CBP to ensure that detainees have access to water, sanitation, and hygiene; food and
nutrition; and shelter, as specified. nutrition; and shelter, as specified.
Medical screening and medical care of arriving migrants is another focus of House legislation. Medical screening and medical care of arriving migrants is another focus of House legislation.
The U.S. Border Patrol Medical Screening Standards Act (H.R. 3525), as passed by the House, The U.S. Border Patrol Medical Screening Standards Act (H.R. 3525), as passed by the House,
would direct DHS to conduct research on the provision of comprehensive medical screening to would direct DHS to conduct research on the provision of comprehensive medical screening to
individuals (particularly vulnerable populations) interdicted by CBP between POEs and issue individuals (particularly vulnerable populations) interdicted by CBP between POEs and issue
recommendations for corrective actions. The bil would further require DHS to implement an recommendations for corrective actions. The bil would further require DHS to implement an
electronic health record system for individuals in its custody. H.R. 3239, in addition to the electronic health record system for individuals in its custody. H.R. 3239, in addition to the
provisions discussed previously, would direct CBP, in consultation with HHS and other experts, provisions discussed previously, would direct CBP, in consultation with HHS and other experts,
to develop guidelines and protocols for the provision of health screenings and appropriate to develop guidelines and protocols for the provision of health screenings and appropriate
medical care to individuals in CBP custody. medical care to individuals in CBP custody.
Other House-passed bil s address treatment of migrants more broadly. The Homeland Security Other House-passed bil s address treatment of migrants more broadly. The Homeland Security
Improvement Act (H.R. 2203), as passed by the House, would establish a new position within Improvement Act (H.R. 2203), as passed by the House, would establish a new position within
DHS for an Ombudsman for Border and Immigration Enforcement Related Concerns. The DHS for an Ombudsman for Border and Immigration Enforcement Related Concerns. The
ombudsman would be responsible for establishing an accessible and confidential process to assist ombudsman would be responsible for establishing an accessible and confidential process to assist
individuals in resolving complaints concerning CBP or DHS’s U.S. Immigration and Customs individuals in resolving complaints concerning CBP or DHS’s U.S. Immigration and Customs
Enforcement (ICE), and for making recommendations to the DHS Secretary to address chronic Enforcement (ICE), and for making recommendations to the DHS Secretary to address chronic
issues identified through the complaint process. (For further discussion of ICE-related legislation, issues identified through the complaint process. (For further discussion of ICE-related legislation,
see see “Interior Enforcement.”) With respect to CBP, the ombudsman also would be charged with .”) With respect to CBP, the ombudsman also would be charged with
establishing a Border Oversight panel to evaluate and make recommendations on DHS border establishing a Border Oversight panel to evaluate and make recommendations on DHS border
enforcement policies, strategies, and programs. H.R. 2203 would further direct the ombudsman to enforcement policies, strategies, and programs. H.R. 2203 would further direct the ombudsman to
appoint a Border Community Liaison in each border patrol sector, with responsibilities including appoint a Border Community Liaison in each border patrol sector, with responsibilities including

12 See U.S. Customs and Border Protection, 12 See U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention,
and Search, October 2015, https://www.cbp.gov/sites/default/files/assets/documents/2020-Feb/, October 2015, https://www.cbp.gov/sites/default/files/assets/documents/2020-Feb/
cbp-teds-policy-october2015.pdf. cbp-teds-policy-october2015.pdf.
13 HSA §411(m), 6 U.S.C. §211(m). 13 HSA §411(m), 6 U.S.C. §211(m).
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consulting with border communities on the development of CBP and ICE policies, directives, and consulting with border communities on the development of CBP and ICE policies, directives, and
programs. programs.
Border Security Resources
The United States has substantial y increased border enforcement resources over the last three The United States has substantial y increased border enforcement resources over the last three
decades, as evidenced across a variety of indicators. Particularly since 2001, such increases have decades, as evidenced across a variety of indicators. Particularly since 2001, such increases have
included fencing and infrastructure, personnel, and technology.14 included fencing and infrastructure, personnel, and technology.14
In recent years, barriers at the Southwest border have been the main focus of discussion and In recent years, barriers at the Southwest border have been the main focus of discussion and
debate about border resources. President Trump’s declaration of a national emergency in debate about border resources. President Trump’s declaration of a national emergency in
February 2019 to secure funding for the construction of physical barriers along the U.S.-Mexico February 2019 to secure funding for the construction of physical barriers along the U.S.-Mexico
border was met by unsuccessful congressional efforts to terminate that declaration.15 The 116th border was met by unsuccessful congressional efforts to terminate that declaration.15 The 116th
Congress passed two termination measures—H.J.Res. 46 and S.J.Res. 54—but both were vetoed Congress passed two termination measures—H.J.Res. 46 and S.J.Res. 54—but both were vetoed
by the President, and subsequent veto override votes fel short. by the President, and subsequent veto override votes fel short.
Another border barrier-related bil (H.R. 1232) has been reported by the House Homeland Another border barrier-related bil (H.R. 1232) has been reported by the House Homeland
Security Committee. H.R. 1232 would amend Section 102 of the Il egal Immigration Reform and Security Committee. H.R. 1232 would amend Section 102 of the Il egal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996, as amended (Div. C of P.L. 104-208, 8 U.S.C. Immigrant Responsibility Act (IIRIRA) of 1996, as amended (Div. C of P.L. 104-208, 8 U.S.C.
§1103 note). Section 102 directs DHS to “instal additional physical barriers and roads … in the §1103 note). Section 102 directs DHS to “instal additional physical barriers and roads … in the
vicinity of the United States border to deter il egal crossings in areas of high il egal entry” and vicinity of the United States border to deter il egal crossings in areas of high il egal entry” and
authorizes DHS to waive legal requirements if necessary to ensure such instal ation.16 H.R. 1232 authorizes DHS to waive legal requirements if necessary to ensure such instal ation.16 H.R. 1232
would amend IIRIRA to rescind that waiver authority. would amend IIRIRA to rescind that waiver authority.
Border security personnel is the subject of multiple bil s that have received action. P.L. 116-26 Border security personnel is the subject of multiple bil s that have received action. P.L. 116-26
includes a provision (§304) on CBP staffing at the U.S.-Canadian border. It requires DHS to includes a provision (§304) on CBP staffing at the U.S.-Canadian border. It requires DHS to
report on the number of CBP officers “assigned to northern border land ports of entry and report on the number of CBP officers “assigned to northern border land ports of entry and
temporarily assigned to the ongoing humanitarian crisis.” temporarily assigned to the ongoing humanitarian crisis.”
The House and the Senate Homeland Security committees have also advanced measures on The House and the Senate Homeland Security committees have also advanced measures on
border personnel. The House Homeland Security Committee has reported the CBP Workload border personnel. The House Homeland Security Committee has reported the CBP Workload
Staffing Model Act (H.R. 1639), which would amend the HSA to require CBPStaffing Model Act (H.R. 1639), which would amend the HSA to require CBP to develop and to develop and
implement a workload staffing model for USBP and Air and Marine Operations.17 The committee implement a workload staffing model for USBP and Air and Marine Operations.17 The committee
has also reported the U.S. Customs and Border Protection Rural and Remote Hiring and has also reported the U.S. Customs and Border Protection Rural and Remote Hiring and
Retention Strategy Act of 2019 (H.R. 1598). This bil would direct DHS to issue a strategy to Retention Strategy Act of 2019 (H.R. 1598). This bil would direct DHS to issue a strategy to
improve the hiring and retention of CBP personnel in rural or remote areas. improve the hiring and retention of CBP personnel in rural or remote areas.
The Senate Homeland Security and Governmental Affairs Committee has acted on several CBP The Senate Homeland Security and Governmental Affairs Committee has acted on several CBP
staffing-related bil s. The Anti-Border Corruption Improvement Act (S. 731), as reported by the staffing-related bil s. The Anti-Border Corruption Improvement Act (S. 731), as reported by the
committee, would amend the CBP Commissioner’s existing discretionary authority to waive the committee, would amend the CBP Commissioner’s existing discretionary authority to waive the
polygraph examination requirement for certain applicants for CBP law enforcement positions. polygraph examination requirement for certain applicants for CBP law enforcement positions.
The Securing America’s Ports of Entry Act of 2019 (S. 1004), as ordered to be reported by the The Securing America’s Ports of Entry Act of 2019 (S. 1004), as ordered to be reported by the

14 See CRS Report R42138, 14 See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry. .
15 U.S. President (T rump), Proclamation 9844 of February 15, 2019, “Declaring a National Emergency Concerning the 15 U.S. President (T rump), Proclamation 9844 of February 15, 2019, “Declaring a National Emergency Concerning the
Southern Border of the United States,” 84 Southern Border of the United States,” 84 Federal Register 4949, February 20, 2019. Also see CRS Legal Sidebar 4949, February 20, 2019. Also see CRS Legal Sidebar
LSB10252, LSB10252, Declarations under the National Em ergencies Act, Part 1: Declarations Currently in Effect ; and CRS ; and CRS
Legal Sidebar LSB10267, Legal Sidebar LSB10267, Definition of National Em ergency under the National Em ergencies Act. .
16 See CRS Report R43975, 16 See CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements. .
17 Air and Marine Operations (AMO), a component of CBP, describes its role as follows: “AMO interdicts unlawful 17 Air and Marine Operations (AMO), a component of CBP, describes its role as follows: “AMO interdicts unlawful
people and cargo approaching U.S. borders, investigates criminal networks and provides domain awareness in the air people and cargo approaching U.S. borders, investigates criminal networks and provides domain awareness in the air
and maritime environments, and responds to contingencies and national taskings.” U.S. Customs and Border and maritime environments, and responds to contingencies and national taskings.” U.S. Customs and Border
Protection, “ Air and Marine Operations,” fact sheet, https://www.cbp.gov/sites/default/files/assets/documents/2019-Protection, “ Air and Marine Operations,” fact sheet, https://www.cbp.gov/sites/default/files/assets/documents/2019-
Apr/FS_2019_AMO_Fact%20Sheet_FINAL_508%20compliant_0.pdf . Apr/FS_2019_AMO_Fact%20Sheet_FINAL_508%20compliant_0.pdf .
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committee, would direct the CBP Commissioner to hire not fewer than 600 new OFO officers committee, would direct the CBP Commissioner to hire not fewer than 600 new OFO officers
annual y, as specified, and an unnamed number of support staff. The Securing America’s Borders annual y, as specified, and an unnamed number of support staff. The Securing America’s Borders
Act of 2019 (S. 2162), as ordered to be reported, would require the CBP Commissioner to hire Act of 2019 (S. 2162), as ordered to be reported, would require the CBP Commissioner to hire
not fewer than 600 new USBP agents annual y, as specified, and an unnamed number of support not fewer than 600 new USBP agents annual y, as specified, and an unnamed number of support
staff. staff.
On the subject of border technology, the House and the Senate have acted on the Securing On the subject of border technology, the House and the Senate have acted on the Securing
America’s Ports Act (H.R. 5273). As passed by the House, the bil would require DHS to submit a America’s Ports Act (H.R. 5273). As passed by the House, the bil would require DHS to submit a
plan to Congress to expeditiously scan al commercial and passenger vehicles entering the United plan to Congress to expeditiously scan al commercial and passenger vehicles entering the United
States at land POEs using large-scale non-intrusive inspection systems or similar technology. The States at land POEs using large-scale non-intrusive inspection systems or similar technology. The
Senate Homeland Security and Governmental Affairs Committee has ordered H.R. 5273 to be Senate Homeland Security and Governmental Affairs Committee has ordered H.R. 5273 to be
reported in amended form. Among the changes approved by the Senate committee to the House-reported in amended form. Among the changes approved by the Senate committee to the House-
passed version of the bil , the required plan for universal scanning would need to passed version of the bil , the required plan for universal scanning would need to ~~cover~~c over freight freight
rail traffic entering the United States at rail-border crossings along the border in addition to rail traffic entering the United States at rail-border crossings along the border in addition to
commercial and passenger vehicles entering the United States. commercial and passenger vehicles entering the United States.
In addition to the above measures, the Operation Stonegarden Authorization Act (S. 2750), as In addition to the above measures, the Operation Stonegarden Authorization Act (S. 2750), as
reported by the Senate Homeland Security and Governmental Affairs Committee, would codify reported by the Senate Homeland Security and Governmental Affairs Committee, would codify
an existing DHS program administered by FEMA that awards grants to state and tribal law an existing DHS program administered by FEMA that awards grants to state and tribal law
enforcement agencies to improve border security. S. 2750 proposes to add a new section to the enforcement agencies to improve border security. S. 2750 proposes to add a new section to the
HSA that would authorize the Operation Stonegarden grant program, describe law enforcement HSA that would authorize the Operation Stonegarden grant program, describe law enforcement
agency eligibility, and set forth permitted uses of grant funds, including for equipment and agency eligibility, and set forth permitted uses of grant funds, including for equipment and
personnel. The bil would also provide for the collection of financial information on grant awards personnel. The bil would also provide for the collection of financial information on grant awards
and for administrative oversight of the program. and for administrative oversight of the program.
Border Security Operations
A third category of border security-related bil s receiving action in the 116th Congress concerns A third category of border security-related bil s receiving action in the 116th Congress concerns
border security operations. The Counter Terrorist Network Act (H.R. 3526), as passed by the border security operations. The Counter Terrorist Network Act (H.R. 3526), as passed by the
House, would amend the HSA provisions establishing the OFO National Targeting Center (NTC), House, would amend the HSA provisions establishing the OFO National Targeting Center (NTC),
an entity that collects and analyzes traveler and cargo information in advance of U.S. arrival to an entity that collects and analyzes traveler and cargo information in advance of U.S. arrival to
identify security risks. H.R. 3526 would task the NTC with an additional duty—to collaborate identify security risks. H.R. 3526 would task the NTC with an additional duty—to collaborate
with appropriate agencies on efforts such as operations to disrupt and dismantle networks that with appropriate agencies on efforts such as operations to disrupt and dismantle networks that
pose terrorist threats. The Operation Stonegarden program, the subject of S. 2750 (discussed pose terrorist threats. The Operation Stonegarden program, the subject of S. 2750 (discussed
above), also seeks to promote cooperation among different agencies to enhance border security. above), also seeks to promote cooperation among different agencies to enhance border security.
Another bil , the DHS Il icit Cross-Border Tunnel Defense Act (H.R. 5828), as ordered to be Another bil , the DHS Il icit Cross-Border Tunnel Defense Act (H.R. 5828), as ordered to be
reported by the House Homeland Security Committee, would direct CBP to develop a strategic reported by the House Homeland Security Committee, would direct CBP to develop a strategic
plan to counter il icit cross-border tunnel operations. plan to counter il icit cross-border tunnel operations.
Interior Enforcement
ICE has primary responsibility for enforcing federal immigration law within the United States, ICE has primary responsibility for enforcing federal immigration law within the United States,
otherwise known as interior enforcement. It identifies, apprehends, detains (as necessary), and otherwise known as interior enforcement. It identifies, apprehends, detains (as necessary), and
removes unauthorized aliens from the country. Among ICE’s removal-related responsibilities, its removes unauthorized aliens from the country. Among ICE’s removal-related responsibilities, its
attorneys represent the U.S. government in removal proceedings before the U.S. Department of attorneys represent the U.S. government in removal proceedings before the U.S. Department of
Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR).18 EOIR immigration judges Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR).18 EOIR immigration judges
preside over these hearings. preside over these hearings.

18 During a removal proceeding, an EOIR immigration judge decides whether the individual is removable from the 18 During a removal proceeding, an EOIR immigration judge decides whether the individual is removable from the
country and, if so, whether he or she qualifies for protection or relief from removal. For additional information, see country and, if so, whether he or she qualifies for protection or relief from removal. For additional information, see
CRS In Focus IF11536, CRS In Focus IF11536, Form al Rem oval Proceedings: An Introduction . .
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The 116th Congress has acted on legislation concerning ICE detention and removal. The FY2019 The 116th Congress has acted on legislation concerning ICE detention and removal. The FY2019
Consolidated Appropriations Act (P.L. 116-6) contains a provision requiring ICE to issue a Consolidated Appropriations Act (P.L. 116-6) contains a provision requiring ICE to issue a
weekly public report with data on detained aliens and aliens enrolled in Alternative to Detention weekly public report with data on detained aliens and aliens enrolled in Alternative to Detention
(ATD) programs (ATD) programs (Div. A, §226).19 The Secure and Protect Act of 2019 (S. 1494), as reported by Div. A, §226).19 The Secure and Protect Act of 2019 (S. 1494), as reported by
the Senate Judiciary Committee, would increase the number of immigration judges by not fewer the Senate Judiciary Committee, would increase the number of immigration judges by not fewer
than 500 and increase the number of ICE attorneys and staff correspondingly. The National than 500 and increase the number of ICE attorneys and staff correspondingly. The National
Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92) also includes a removal-related Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92) also includes a removal-related
provision (§570B(b)), which would require an ICE immigration officer to consider an provision (§570B(b)), which would require an ICE immigration officer to consider an
individual’s military service in determining whether to take certain removal-related actions, such individual’s military service in determining whether to take certain removal-related actions, such
as commencing removal proceedings or executing a final order of removal. as commencing removal proceedings or executing a final order of removal.
Concerning ICE enforcement more general y, House-passed H.R. 2203, as discussed in Concerning ICE enforcement more general y, House-passed H.R. 2203, as discussed in
“Treatment of Arriving Migrants” above, would establish a new DHS Ombudsman for Border above, would establish a new DHS Ombudsman for Border
and Immigration Enforcement Related Concerns, whose tasks would include assisting individuals and Immigration Enforcement Related Concerns, whose tasks would include assisting individuals
in resolving complaints concerning ICE and making recommendations to address chronic issues. in resolving complaints concerning ICE and making recommendations to address chronic issues.
Unaccompanied Alien Children
Unaccompanied alien children (UAC, unaccompanied children) are defined in statute as children Unaccompanied alien children (UAC, unaccompanied children) are defined in statute as children
who lack lawful immigration status in the United States, are under age 18, and are without a who lack lawful immigration status in the United States, are under age 18, and are without a
parent or legal guardian in the United States or without a parent or legal guardian in the United parent or legal guardian in the United States or without a parent or legal guardian in the United
States who is available to provide care and physical custody.20 In FY2019, the number of UAC States who is available to provide care and physical custody.20 In FY2019, the number of UAC
and family units21 arriving at the Southwest border reached record high levels, posing and family units21 arriving at the Southwest border reached record high levels, posing
considerable chal enges to U.S. federal agencies charged with apprehending and processing considerable chal enges to U.S. federal agencies charged with apprehending and processing
unauthorized migrants. unauthorized migrants.
P.L. 116-26 appropriates funding to various agencies for UAC-related activities. It appropriates P.L. 116-26 appropriates funding to various agencies for UAC-related activities. It appropriates
nearly $2.9 bil ion to HHS, mostly to support its UAC program. HHS’s Office of Refugee nearly $2.9 bil ion to HHS, mostly to support its UAC program. HHS’s Office of Refugee
Resettlement (ORR) is responsible for the care and placement of unaccompanied children. The Resettlement (ORR) is responsible for the care and placement of unaccompanied children. The
act requires HHS to use at least $866 mil ion of the appropriated amount for providing UAC care act requires HHS to use at least $866 mil ion of the appropriated amount for providing UAC care
in state-licensed shelters, and to reverse $385 mil ion in earlier fund reprogramming.22 It outlines in state-licensed shelters, and to reverse $385 mil ion in earlier fund reprogramming.22 It outlines
licensing and staffing requirements for unlicensed temporary facilities that are open for more than licensing and staffing requirements for unlicensed temporary facilities that are open for more than
six months, and lists who should not be housed in unlicensed facilities.23 P.L. 116-26 provides a six months, and lists who should not be housed in unlicensed facilities.23 P.L. 116-26 provides a
total of $145 mil ion to branches of the U.S. military “to respond to the significant rise in total of $145 mil ion to branches of the U.S. military “to respond to the significant rise in

19 T hese data are available at U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, 19 T hese data are available at U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement,
Detention Management (under Detention Statistics tab), https://www.ice.gov/detention-management . For information Detention Management (under Detention Statistics tab), https://www.ice.gov/detention-management . For information
on AT D programs, see CRS Report R45804, on AT D programs, see CRS Report R45804, Im m igration: Alternatives to Detention (ATD) Program s. .
20 6 U.S.C. §279(g)(2). For a discussion of unaccompanied alien children and related legislation, see 20 6 U.S.C. §279(g)(2). For a discussion of unaccompanied alien children and related legislation, see CRS Report CRS Report
R43599, R43599, Unaccom panied Alien Children: An Overview. .
21 A family unit in this section refers to at least one parent/guardian and at least one child. A child accompanied by any 21 A family unit in this section refers to at least one parent/guardian and at least one child. A child accompanied by any
other related adult (e.g., uncle, older sibling, grandparent) is not considered part of a family unit.other related adult (e.g., uncle, older sibling, grandparent) is not considered part of a family unit.
22 HHS had reprogrammed or transferred $385 million from other HHS programs to HHS’s Office of Refugee 22 HHS had reprogrammed or transferred $385 million from other HHS programs to HHS’s Office of Refugee
Resettlement, reportedly to cover the additional expenses stemming from the T rump Administration’s “ zero tolerance Resettlement, reportedly to cover the additional expenses stemming from the T rump Administration’s “ zero tolerance
policy” on border enforcement. See U.S. Congress, House Committee on Appropriations, policy” on border enforcement. See U.S. Congress, House Committee on Appropriations, Departments of Labor,
Health and Hum an Services, and Education, and Related Agencies Appropriations Bill, 2020 , report to accompany , report to accompany
H.R. 2740, 116th Cong., 1st sess., H.Rept. 116-62 (Washington, DC: GPO, 2019), p. 11. H.R. 2740, 116th Cong., 1st sess., H.Rept. 116-62 (Washington, DC: GPO, 2019), p. 11.
23 T hese include children not expected to be placed with sponsors within 30 days, children under age 13, non -English 23 T hese include children not expected to be placed with sponsors within 30 days, children under age 13, non -English
or Spanish speakers, special needs children, pregnant or parenting teenagers, or anyone who would experience a or Spanish speakers, special needs children, pregnant or parenting teenagers, or anyone who would experience a
diminution of legal services as a result of a transfer into such a facility. diminution of legal services as a result of a transfer into such a facility.
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unaccompanied minors and family unit aliens at the southwest border.”24 During past migrant unaccompanied minors and family unit aliens at the southwest border.”24 During past migrant
surges, the military assisted by facilitating border enforcement-related activities and temporary surges, the military assisted by facilitating border enforcement-related activities and temporary
migrant housing, often by leasing temporary housing facilities to ORR. P.L. 116-26 also migrant housing, often by leasing temporary housing facilities to ORR. P.L. 116-26 also
appropriates $36 mil ion to ICE for the transportation of UAC from ICE custody to ORR custody. appropriates $36 mil ion to ICE for the transportation of UAC from ICE custody to ORR custody.
S. 1494, as reported by the Senate Judiciary Committee, would significantly change processing of S. 1494, as reported by the Senate Judiciary Committee, would significantly change processing of
unaccompanied children who are apprehended at the U.S. border or a POE and found to be unaccompanied children who are apprehended at the U.S. border or a POE and found to be
inadmissible25 to the United States. Current law requires that DHS screen apprehended Mexican inadmissible25 to the United States. Current law requires that DHS screen apprehended Mexican
and Canadian unaccompanied children to determine if (1) they are at risk of being trafficked, (2) and Canadian unaccompanied children to determine if (1) they are at risk of being trafficked, (2)
they fear returning to their home country, and (3) they are able to decide independently to return they fear returning to their home country, and (3) they are able to decide independently to return
home voluntarily by withdrawing their application for admission.26 Upon a determination that an home voluntarily by withdrawing their application for admission.26 Upon a determination that an
unaccompanied child is not at risk of being trafficked, does not fear returning home, and is able to unaccompanied child is not at risk of being trafficked, does not fear returning home, and is able to
decide to withdraw his or her application, the child can be repatriated. Historical y, most UAC decide to withdraw his or her application, the child can be repatriated. Historical y, most UAC
from contiguous countries (almost al of whom have been Mexican) have met such conditions and from contiguous countries (almost al of whom have been Mexican) have met such conditions and
been repatriated promptly.27 In contrast, unaccompanied children from noncontiguous countries been repatriated promptly.27 In contrast, unaccompanied children from noncontiguous countries
who are apprehended at the U.S. border or a POE and found to be inadmissible to the United who are apprehended at the U.S. border or a POE and found to be inadmissible to the United
States are placed in removal proceedings.28 They are then referred to ORR, where most are States are placed in removal proceedings.28 They are then referred to ORR, where most are
eventual y placed with U.S.-based family-member sponsors while they await their immigration eventual y placed with U.S.-based family-member sponsors while they await their immigration
court hearings. court hearings.
Under S. 1494, al unaccompanied children who are apprehended at the U.S. border or a POE and Under S. 1494, al unaccompanied children who are apprehended at the U.S. border or a POE and
found to be inadmissible to the United States would be processed under revised procedures. found to be inadmissible to the United States would be processed under revised procedures.
These procedures would be the same regardless of whether the children were from contiguous or These procedures would be the same regardless of whether the children were from contiguous or
noncontiguous countries and would include the three-part screening described above. If the DHS noncontiguous countries and would include the three-part screening described above. If the DHS
officer conducting that screening determined that an unaccompanied child was unable to decide officer conducting that screening determined that an unaccompanied child was unable to decide
independently to return voluntarily, the child would be placed into removal proceedings (whether independently to return voluntarily, the child would be placed into removal proceedings (whether
or not the officer determined that the child was at risk of being trafficked or feared returning or not the officer determined that the child was at risk of being trafficked or feared returning
home). home).
S. 1494 would require an additional screening in cases in which a DHS officer determined, S. 1494 would require an additional screening in cases in which a DHS officer determined,
through the three-part screening described above, that an unaccompanied child was not at risk of through the three-part screening described above, that an unaccompanied child was not at risk of
being trafficked, did not fear returning home, and was able to decide independently to return being trafficked, did not fear returning home, and was able to decide independently to return
home voluntarily, but the child chose not to withdraw his or her application. In such cases, the home voluntarily, but the child chose not to withdraw his or her application. In such cases, the
unaccompanied child would be repatriated unless an immigration officer trained in interviewing unaccompanied child would be repatriated unless an immigration officer trained in interviewing
at-risk children made one of two determinations: (1) it was more likely than not that the UAC at-risk children made one of two determinations: (1) it was more likely than not that the UAC

24 P.L. 116-26, T itle II. T he bill does not specify how these funds are to be allocated among activities related to UAC 24 P.L. 116-26, T itle II. T he bill does not specify how these funds are to be allocated among activities related to UAC
versus other versus other ~~migrant s~~migrants. .
25 T he INA enumerates grounds of inadmissibility (INA §212(a), 8 U.S.C. §1182(a)), which are grounds upon which 25 T he INA enumerates grounds of inadmissibility (INA §212(a), 8 U.S.C. §1182(a)), which are grounds upon which
aliens are ineligible to receive visas or to be admitted to the United States. T hese include health, criminal, and aliens are ineligible to receive visas or to be admitted to the United States. T hese include health, criminal, and ~~security~~sec urity
grounds as well as grounds related to the likelihood of becoming a public charge (indigent), alien smuggling, lack of grounds as well as grounds related to the likelihood of becoming a public charge (indigent), alien smuggling, lack of
appropriate documentation, and unlawful presence in the United States. appropriate documentation, and unlawful presence in the United States.
26 8 U.S.C. §1232(a)(2)(A). Under INA §235(a)(4), apprehension 26 8 U.S.C. §1232(a)(2)(A). Under INA §235(a)(4), apprehension at the border at the border ~~constitut es~~constitutes an application for admission an application for admission
to the United States. In this case, “withdrawal of application for admission” permits the UAC to return immediately to to the United States. In this case, “withdrawal of application for admission” permits the UAC to return immediately to
Mexico or Canada and avoid administrative or other penalties. For further Mexico or Canada and avoid administrative or other penalties. For further ~~information~~informa tion about special rules on the about special rules on the
treatment of UACs, see CRS Legal Sidebar LSB10150, treatment of UACs, see CRS Legal Sidebar LSB10150, Im m igration Laws Regulating the Adm ission and Exclusion of
Aliens at the Border. .
27 See, for example, U.S. Government Accountability Office, 27 See, for example, U.S. Government Accountability Office, Unaccompanied Alien Children: Actions Needed to
Ensure Children Receive Required Care in DHS Custody, GAO-15-521, July 2015, p. 24. , GAO-15-521, July 2015, p. 24.
28 T he removal proceedings referred to in this section are also known as standard removal proceedings or 28 T he removal proceedings referred to in this section are also known as standard removal proceedings or INA Section INA Section
240 proceedings. T hey can be distinguished from expedited removal proceedings (see 240 proceedings. T hey can be distinguished from expedited removal proceedings (see “ Asylum System”). UAC are not ). UAC are not
subject to expedited removal. subject to expedited removal.
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would be trafficked upon return to his or her home country, or (2) it was more likely than not that would be trafficked upon return to his or her home country, or (2) it was more likely than not that
the UAC would be granted asylum or another specified form of humanitarian relief. In the event the UAC would be granted asylum or another specified form of humanitarian relief. In the event
of the first determination, the UAC would be referred for removal proceedings; in the event of the of the first determination, the UAC would be referred for removal proceedings; in the event of the
second, the UAC would receive a hearing before an immigration judge solely to determine second, the UAC would receive a hearing before an immigration judge solely to determine
eligibility for asylum or another specified form of relief. If the judge found the UAC was eligibility for asylum or another specified form of relief. If the judge found the UAC was
ineligible for asylum or other relief, the child would be repatriated. Al such judicial ineligible for asylum or other relief, the child would be repatriated. Al such judicial
determinations would not be subject to review. S. 1494 would al ow DHS to establish new determinations would not be subject to review. S. 1494 would al ow DHS to establish new
repatriation agreements—not just with Mexico and Canada, with which it currently has repatriation agreements—not just with Mexico and Canada, with which it currently has
agreements, but with any country deemed appropriate. agreements, but with any country deemed appropriate.
S. 1494 would also grant DHS discretion to detain inadmissible or removable29 alien children S. 1494 would also grant DHS discretion to detain inadmissible or removable29 alien children
(other than UAC), including those who were previously classified by DHS as unaccompanied. It (other than UAC), including those who were previously classified by DHS as unaccompanied. It
would prioritize removal proceedings of such alien children and any family units that include would prioritize removal proceedings of such alien children and any family units that include
alien minors, with the goal of adjudicating such cases within 100 days. S. 1494 would invalidate alien minors, with the goal of adjudicating such cases within 100 days. S. 1494 would invalidate
the the Flores Settlement Agreement Settlement Agreement (Flores), 30 which governs detention conditions for inadmissible ), 30 which governs detention conditions for inadmissible
or removable alien children (including UAC), and requires that detention and release decisions be or removable alien children (including UAC), and requires that detention and release decisions be
based only upon existing statutes. It would grant DHS authority to determine appropriate based only upon existing statutes. It would grant DHS authority to determine appropriate
detention conditions for alien children who are part of family units (not UAC), prevent states detention conditions for alien children who are part of family units (not UAC), prevent states
from requiring that detention facilities for family units be state-licensed, and al ow relatively from requiring that detention facilities for family units be state-licensed, and al ow relatively
broad conditions for DHS family detention facilities compared to the relatively specific broad conditions for DHS family detention facilities compared to the relatively specific
requirements currently outlined in requirements currently outlined in Flores.31 For future civil cases regarding detention conditions .31 For future civil cases regarding detention conditions
for alien children, the bil would prohibit any settlement agreement or consent decree that did not for alien children, the bil would prohibit any settlement agreement or consent decree that did not
comply with its provisions. comply with its provisions.
In May 2018, DOJ implemented a “zero tolerance” policy toward il egal border crossing to In May 2018, DOJ implemented a “zero tolerance” policy toward il egal border crossing to
discourage unlawful migration into the United States.32 Under the policy, CBP referred al adult discourage unlawful migration into the United States.32 Under the policy, CBP referred al adult
il egal border crossers to DOJ for prosecution. CBP reclassified any children accompanying those il egal border crossers to DOJ for prosecution. CBP reclassified any children accompanying those
adults as unaccompanied and transferred them to ORR custody. During the six weeks the policy adults as unaccompanied and transferred them to ORR custody. During the six weeks the policy
was in effect, roughly 3,000 children may have been separated from their parents.33 Subsequent was in effect, roughly 3,000 children may have been separated from their parents.33 Subsequent
attempts by CBP, ICE, and ORR to reunite the separated children with their parents were attempts by CBP, ICE, and ORR to reunite the separated children with their parents were
hampered, in part, by limitations of the information technology system CBP used to track the hampered, in part, by limitations of the information technology system CBP used to track the
children.34 H.R. 2203, as passed by the House, would require a new Ombudsman of Border and children.34 H.R. 2203, as passed by the House, would require a new Ombudsman of Border and
Immigration Enforcement Related Concerns, in coordination with CBP, ICE, and ORR, to Immigration Enforcement Related Concerns, in coordination with CBP, ICE, and ORR, to
develop recommendations for establishing an electronic tracking number system, accessible by al develop recommendations for establishing an electronic tracking number system, accessible by al

29 T he counterpart to the INA grounds of inadmissibility, the grounds of deportability (enumerated in INA §237(a), 8 29 T he counterpart to the INA grounds of inadmissibility, the grounds of deportability (enumerated in INA §237(a), 8
U.S.C. §1227(a)) are grounds upon which an alien can be ordered removed from the United States. T hese include U.S.C. §1227(a)) are grounds upon which an alien can be ordered removed from the United States. T hese include
criminal and security grounds as well as grounds related to inadmissibility at the time of entry, presence in the United criminal and security grounds as well as grounds related to inadmissibility at the time of entry, presence in the United
States in violation of the law, and violation of the terms or conditions of admission or entry. States in violation of the law, and violation of the terms or conditions of admission or entry.
30 30 Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997). Many (U.S. District Court, Central District of California, 1997). Many
terms of the agreement are codified at 8 C.F.R. §§236.3, 1236.3. Also see CRS Report R45297, terms of the agreement are codified at 8 C.F.R. §§236.3, 1236.3. Also see CRS Report R45297, The “Flores
Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions. .
31 Under S. 1494, facilities would be required to be “secure and safe.” DHS would need to ensure that alien minor 31 Under S. 1494, facilities would be required to be “secure and safe.” DHS would need to ensure that alien minor
children and their accompanying parents are provided with “children and their accompanying parents are provided with “ suitable living accommodations” as well as access to suitable living accommodations” as well as access to
drinking water and food. T imely access to medical drinking water and food. T imely access to medical ~~assistance~~assistan ce, including mental health assistance, and access to any , including mental health assistance, and access to any
other service necessary for the adequate care of a minor child would also have to be provided. other service necessary for the adequate care of a minor child would also have to be provided.
32 See CRS Report R45266, 32 See CRS Report R45266, The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy. .
33 For the most recent information on separated families, see U.S. Department of Health and Human Services, 33 For the most recent information on separated families, see U.S. Department of Health and Human Services,
“Unaccompanied Alien Children Information,” https://www.hhs.gov/programs/social-services/unaccompanied-alien-“Unaccompanied Alien Children Information,” https://www.hhs.gov/programs/social-services/unaccompanied-alien-
children/index.html. children/index.html.
34 For more information, see, for example, Government Accountability Office, 34 For more information, see, for example, Government Accountability Office, Southwest Border: Actions Needed to
Im prove DHS Processing of Fam ilies and Coordination between DHS and HHS , GAO-20-245, February 2020. , GAO-20-245, February 2020.
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three agencies, to track the location of children who were separated from their parents or legal three agencies, to track the location of children who were separated from their parents or legal
guardians. guardians.
Legalization of Unauthorized Immigrants
At several points during the past 20 years, Congress has considered legislation to establish At several points during the past 20 years, Congress has considered legislation to establish
pathways to lawful permanent resident (LPR) status for unauthorized immigrants (foreign pathways to lawful permanent resident (LPR) status for unauthorized immigrants (foreign
nationals in the United States without a lawful immigration status). LPRs can live and work nationals in the United States without a lawful immigration status). LPRs can live and work
permanently in the United States and can become U.S. citizens through the naturalization process. permanently in the United States and can become U.S. citizens through the naturalization process.
Past legalization measures have included stand-alone bil s that would have established pathways Past legalization measures have included stand-alone bil s that would have established pathways
to LPR status for unauthorized childhood arrivals (these bil s typical y have been referred to as to LPR status for unauthorized childhood arrivals (these bil s typical y have been referred to as
Dream Acts)35 as wel as broader bil s, commonly referred to as comprehensive immigration Dream Acts)35 as wel as broader bil s, commonly referred to as comprehensive immigration
reform bil s, which contained provisions that would have enabled unauthorized immigrants more reform bil s, which contained provisions that would have enabled unauthorized immigrants more
general y to obtain LPR status.36 These latter bil s often have included a standard legalization general y to obtain LPR status.36 These latter bil s often have included a standard legalization
pathway for unauthorized immigrants general y as wel as special, shorter pathways for particular pathway for unauthorized immigrants general y as wel as special, shorter pathways for particular
segments of the unauthorized population: unauthorized childhood arrivals and agricultural segments of the unauthorized population: unauthorized childhood arrivals and agricultural
workers. workers.
In the 116th Congress, legalization efforts have focused on these same two segments of the In the 116th Congress, legalization efforts have focused on these same two segments of the
unauthorized population. The House has passed the American Dream and Promise Act of 2019 unauthorized population. The House has passed the American Dream and Promise Act of 2019
(H.R. 6),37 which would provide a pathway to LPR status for certain unauthorized childhood (H.R. 6),37 which would provide a pathway to LPR status for certain unauthorized childhood
arrivals, and the Farm Workforce Modernization Act of 2019 (H.R. 5038), which would provide a arrivals, and the Farm Workforce Modernization Act of 2019 (H.R. 5038), which would provide a
pathway to LPR status for certain unauthorized foreign agricultural workers. (Both bil s would pathway to LPR status for certain unauthorized foreign agricultural workers. (Both bil s would
also make eligible for these LPR pathways individuals who have Temporary Protected Status or also make eligible for these LPR pathways individuals who have Temporary Protected Status or
are under a grant of Deferred Enforced Departure and meet the other eligibility requirements in are under a grant of Deferred Enforced Departure and meet the other eligibility requirements in
the bil s; for information on legislation in the 116th Congress addressing these forms of relief, see the bil s; for information on legislation in the 116th Congress addressing these forms of relief, see
“Temporary Protected Status and Deferred Enforced Departure.”) .”)
Childhood Arrivals
Entitled the Dream Act, Title I of H.R. 6 would establish a mechanism for certain individuals in Entitled the Dream Act, Title I of H.R. 6 would establish a mechanism for certain individuals in
the United States who arrived at a young age and do not have a lawful immigration status to the United States who arrived at a young age and do not have a lawful immigration status to
become LPRs.38 In most cases, these unauthorized childhood arrivals could obtain LPR status become LPRs.38 In most cases, these unauthorized childhood arrivals could obtain LPR status
through a two-stage process.39 through a two-stage process.39

35 See CRS Report R45995, 35 See CRS Report R45995, Unauthorized Childhood Arrivals, DACA, and Related Legislation . .
36 T he most recent bill of this type to receive floor action was the Border Security, Economic Opportunity, and 36 T he most recent bill of this type to receive floor action was the Border Security, Economic Opportunity, and
Immigration Modernization Act (S. 744) in the 113th Congress. See CRS Report R43097, Immigration Modernization Act (S. 744) in the 113th Congress. See CRS Report R43097, Com prehensive Im m igration
Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744. .
37 In terms of legislative process, H.R. 6 was referred to the House Judiciary Committee. Instead of marking up H.R. 6, 37 In terms of legislative process, H.R. 6 was referred to the House Judiciary Committee. Instead of marking up H.R. 6,
the committee marked up separate bills covering H.R. 6’s T itle I on unauthorized childhood arrivals (H.R. 2820) and the committee marked up separate bills covering H.R. 6’s T itle I on unauthorized childhood arrivals (H.R. 2820) and
T itle II on T emporary Protected Status/Deferred Enforced Departure ( H.R. 2821). T he committee-reported versions of T itle II on T emporary Protected Status/Deferred Enforced Departure ( H.R. 2821). T he committee-reported versions of
H.R. 2820 and H.R. 2821 were then recombined into an amended version of H.R. 6, which was considered on the H.R. 2820 and H.R. 2821 were then recombined into an amended version of H.R. 6, which was considered on the
House floor. House floor.
38 T his title would also cover certain individuals who have T emporary Protected Status or are under a grant of Deferred 38 T his title would also cover certain individuals who have T emporary Protected Status or are under a grant of Deferred
Enforced Departure and qualify as childhood arrivals under its terms. In addition, certain individuals eligible for Enforced Departure and qualify as childhood arrivals under its terms. In addition, certain individuals eligible for
T emporary Protected Status or Deferred Enforced Departure are separately covered by T itle II of H.R. 6, which is T emporary Protected Status or Deferred Enforced Departure are separately covered by T itle II of H.R. 6, which is
discussed in discussed in “T emporary Protected Status and Deferred Enforced Departure.” ”
39 For a more detailed discussion of the T itle I provisions on unauthorized childhood arrivals, see39 For a more detailed discussion of the T itle I provisions on unauthorized childhood arrivals, see CRS Report R45995, CRS Report R45995,
Unauthorized Childhood Arrivals, DACA, and Related Legislation . .
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To obtain To obtain conditional LPR status in stage 1, an individual would need to meet a set of LPR status in stage 1, an individual would need to meet a set of
requirements, including continuous presence in the United States for at least four years since the requirements, including continuous presence in the United States for at least four years since the
date of enactment, initial U.S. entry before age 18, no inadmissibility under spec ified grounds in date of enactment, initial U.S. entry before age 18, no inadmissibility under spec ified grounds in
the INA40 and no other specified ineligibilities,41 and satisfaction of educational requirements. the INA40 and no other specified ineligibilities,41 and satisfaction of educational requirements.
Recipients of Deferred Action for Childhood Arrivals (DACA) would be subject to streamlined Recipients of Deferred Action for Childhood Arrivals (DACA) would be subject to streamlined
application procedures to be established by DHS (for information on legislation in the 116th application procedures to be established by DHS (for information on legislation in the 116th
Congress addressing DACA, see Congress addressing DACA, see “Deferred Action for Childhood Arrivals”). Al applicants would ). Al applicants would
need to submit biometric and biographic data for security and law enforcement background need to submit biometric and biographic data for security and law enforcement background
checks. Conditional LPR status would be valid for 10 years. checks. Conditional LPR status would be valid for 10 years.
In stage 2, a conditional LPR would have to meet a second set of requirements (subject to In stage 2, a conditional LPR would have to meet a second set of requirements (subject to
exceptions) to have the conditional basis of his or her status removed and become a full-fledged exceptions) to have the conditional basis of his or her status removed and become a full-fledged
LPR. Among these requirements are satisfaction of specified education, military service, or LPR. Among these requirements are satisfaction of specified education, military service, or
employment criteria. Other stage 2 requirements include submission of biometric and biographic employment criteria. Other stage 2 requirements include submission of biometric and biographic
data for security and law enforcement background checks, continued clearance of inadmissibility data for security and law enforcement background checks, continued clearance of inadmissibility
and ineligibility criteria, and satisfaction of the English language and U.S. civics requirements for and ineligibility criteria, and satisfaction of the English language and U.S. civics requirements for
naturalization. naturalization.
Under H.R. 6, a conditional LPR could apply to have the condition on his or her status removed Under H.R. 6, a conditional LPR could apply to have the condition on his or her status removed
at any time after meeting the stage 2 requirements. In addition, the bil would provide that an at any time after meeting the stage 2 requirements. In addition, the bil would provide that an
applicant meeting al the stage 1 and stage 2 requirements at the time of submitting an initial applicant meeting al the stage 1 and stage 2 requirements at the time of submitting an initial
application would be granted full-fledged LPR status directly (without first being granted application would be granted full-fledged LPR status directly (without first being granted
conditional status). conditional status).
Agricultural Workers
Title I of the Farm Workforce Modernization Act of 2019 (H.R. 5038) would establish a Title I of the Farm Workforce Modernization Act of 2019 (H.R. 5038) would establish a
mechanism for certain agricultural workers to obtain a legal immigration status. It would enable mechanism for certain agricultural workers to obtain a legal immigration status. It would enable
agricultural workers who had performed 180 work days of agricultural labor in the United States agricultural workers who had performed 180 work days of agricultural labor in the United States
during the two years prior to the bill’s date of introduction (November 12, 2019) to obtain a new during the two years prior to the bill’s date of introduction (November 12, 2019) to obtain a new
legal temporary status termed certified agricultural worker (CAW) status. Other eligibility legal temporary status termed certified agricultural worker (CAW) status. Other eligibility
requirements for CAW status would include continuous presence in the United States since requirements for CAW status would include continuous presence in the United States since
November 12, 2019, and clearance of specified INA grounds of inadmissibility42 and other November 12, 2019, and clearance of specified INA grounds of inadmissibility42 and other
specified criminal ineligibilities. Applicants would need to submit biometric and biographic data specified criminal ineligibilities. Applicants would need to submit biometric and biographic data
for security and law enforcement background checks. The bil would apply to unauthorized for security and law enforcement background checks. The bil would apply to unauthorized
immigrants as wel as individuals who have Temporary Protected Status or are under a grant of immigrants as wel as individuals who have Temporary Protected Status or are under a grant of
Deferred Enforced Departure (for more information on legislation in the 116th Congress Deferred Enforced Departure (for more information on legislation in the 116th Congress
addressing these forms of protection, seeaddressing these forms of protection, see “Temporary Protected Status and Deferred Enforced
Departure”). ).
CAW status would be valid for 5 1/2 years. Notably, it could be extended in 5 1/2-year increments CAW status would be valid for 5 1/2 years. Notably, it could be extended in 5 1/2-year increments
indefinitely, provided that the individual performed at least 100 work days of agricultural labor in indefinitely, provided that the individual performed at least 100 work days of agricultural labor in

40 H.R. 6 specifies the INA grounds of inadmissibility that would apply to applicants for conditional LPR status, which 40 H.R. 6 specifies the INA grounds of inadmissibility that would apply to applicants for conditional LPR status, which
include health, criminal, and security grounds (subject to some waivers), among others.include health, criminal, and security grounds (subject to some waivers), among others.
41 An individual would be ineligible for conditional LPR status if he or she, for example, had been convicted of a 41 An individual would be ineligible for conditional LPR status if he or she, for example, had been convicted of a
felony offense (“excluding any offense under state law for which an essential element is the alien’s immigration status, felony offense (“excluding any offense under state law for which an essential element is the alien’s immigration status,
and any minor traffic offense”) or had “ ordered, incited, assisted, or otherwise participated in the persecution of any and any minor traffic offense”) or had “ ordered, incited, assisted, or otherwise participated in the persecution of any
person on account of race, religion, nationality, membership in a particular social group, or political opinion .” person on account of race, religion, nationality, membership in a particular social group, or political opinion .”
42 H.R. 5038 specifies the grounds of inadmissibility that would apply to applicants for CAW status, which include 42 H.R. 5038 specifies the grounds of inadmissibility that would apply to applicants for CAW status, which include
health, criminal, and security grounds (subject to some waivers), among others. health, criminal, and security grounds (subject to some waivers), among others.
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each of the first five years in each CAW status period and had not become inadmissible or each of the first five years in each CAW status period and had not become inadmissible or
ineligible under specified grounds.43 To be granted an extension of CAW status, an applicant ineligible under specified grounds.43 To be granted an extension of CAW status, an applicant
would also need to submit biometric and biographic data for security and law enforcement would also need to submit biometric and biographic data for security and law enforcement
background checks. background checks.
An individual in CAW status could apply to become an LPR. To be eligible for LPR status, a An individual in CAW status could apply to become an LPR. To be eligible for LPR status, a
CAW who had performed 100 work days of agricultural labor each year for 10 years prior to the CAW who had performed 100 work days of agricultural labor each year for 10 years prior to the
date of enactment would need to perform 100 work days of such labor for 4 years in CAW status. date of enactment would need to perform 100 work days of such labor for 4 years in CAW status.
A CAW who had not performed 100 work days of agricultural labor for 10 years prior to the date A CAW who had not performed 100 work days of agricultural labor for 10 years prior to the date
of enactment would need to perform 100 work days of such labor for 8 years in CAW status. of enactment would need to perform 100 work days of such labor for 8 years in CAW status.
Applicants would also need to remain clear of the grounds of inadmissibility and ineligibility for Applicants would also need to remain clear of the grounds of inadmissibility and ineligibility for
CAW status, and would need to submit biometric and biographic data for security and law CAW status, and would need to submit biometric and biographic data for security and law
enforcement background checks. They would also need to pay a $1,000 fee and satisfy any enforcement background checks. They would also need to pay a $1,000 fee and satisfy any
applicable federal tax liability. applicable federal tax liability.
Subject to specified requirements, H.R. 5038 would provide for the granting of CAW dependent Subject to specified requirements, H.R. 5038 would provide for the granting of CAW dependent
status to the spouses and children of principal applicants granted CAW status, and for the granting status to the spouses and children of principal applicants granted CAW status, and for the granting
of LPR status to the spouses and children of principal applicants granted LPR status. of LPR status to the spouses and children of principal applicants granted LPR status.
Deferred Action for Childhood Arrivals
DHS announced the DACA initiative in June 2012. Under this initiative, certain individuals who DHS announced the DACA initiative in June 2012. Under this initiative, certain individuals who
were brought to the United States as children and met other criteria would be considered for were brought to the United States as children and met other criteria would be considered for
deferred action on removal for two years, subject to renewal. In addition to protection from deferred action on removal for two years, subject to renewal. In addition to protection from
removal, DACA beneficiaries may receive work authorization. In September 2017, then-removal, DACA beneficiaries may receive work authorization. In September 2017, then-~~Attorney~~
~~General Sessions announced that DACA was being terminated, prompting~~DHS Acting Secretary Duke issued a memorandum rescinding DACA,44 which prompted legal ~~legal~~ chal enges. chal enges.
Under federal court rulings Under federal court rulings ~~as of the date of this report~~that followed, individuals who , individuals who ~~have~~had been granted been granted
~~DACA~~ DACA in the past in the past ~~continue~~continued to be able to submit DACA to be able to submit DACA requests. Individuals who requests. Individuals who ~~have~~had never been never been
~~granted DACA cannot~~granted DACA could not submit requests. submit requests.4445
According to the latest DHS data published as of the date of this report, there were approximately According to the latest DHS data published as of the date of this report, there were approximately
649,070 active DACA recipients as of December 31, 2019.649,070 active DACA recipients as of December 31, 2019.4546 This number was 689,800 at the This number was 689,800 at the
time of the termination announcement in September 2017.47 43 By contrast, agricultural worker legalization provisions in past legislation receiving action, such as S. 744 in the 113th Congress, would have limited legal temporary status to a maximum number of years. 44 U.S. Department of Homeland Security, Memorandum to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, T homas D. Homan, Acting Director, U.S. Immigration and Customs Enforcement, Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection, Joseph B. Maher, Acting General Counsel, Ambassador James D. Nealon, Assistant Secretary, International Engagement, Julie M. Kirchner, Citizenship and Immigration Services Ombudsman, from Elaine C. Duke, Acting Secretary, Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” September 5, 2017, https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 45~~time of the termination announcement in September 2017.46 The U.S. Supreme Court heard~~
~~arguments on DACA termination in November 2019.~~
~~Title I of H.R. 6, as discussed above, would direct DHS to establish streamlined procedures for~~
~~DACA recipients to apply for LPR status under the bil ’s legalization mechanism for~~
~~unauthorized childhood arrivals. Other legislation considered by the 116th Congress likewise~~
~~includes special provisions for the DACA population. A provision (§570B(a)) in P.L. 116-92~~

~~43 By contrast, agricultural worker legalization provisions in past legislation receiving action, such as S. 744 in the 113th~~
~~Congress, would have limited legal temporary status to a maximum number of years.~~
44 See CRS Report R45995, See CRS Report R45995, Unauthorized Childhood Arrivals, DACA, and Related Legislation . .
4546 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “ Approximate Active DACA U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “ Approximate Active DACA
Recipients As of December 31, 2019,” https://www.uscis.gov/sites/default/files/USCI S/Reso urces/Recipients As of December 31, 2019,” https://www.uscis.gov/sites/default/files/USCI S/Reso urces/
Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/
DACA_Population_Receipts_since_Injunction_Dec_31_2019.pdf . DACA_Population_Receipts_since_Injunction_Dec_31_2019.pdf .
4647 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “ Approximate Active DACA U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “ Approximate Active DACA
Recipients,” https://www.uscis.gov/sites/default/files/USCI S/Re sources/Recipients,” https://www.uscis.gov/sites/default/files/USCI S/Re sources/ Reports%20and%20Studies/Reports%20and%20Studies/
Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf. Reasons for the drop in the Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf. Reasons for the drop in the
number of DACA recipients from September 2017 to September 2019 include failure to renew DACA and acquisitionnumber of DACA recipients from September 2017 to September 2019 include failure to renew DACA and acquisition
~~of LPR status.~~
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The U.S. Supreme Court heard arguments on the DACA rescission in November 2019 and issued its ruling on June 18, 2020. As stated in the majority opinion: “The dispute before the Court is not whether DHS may rescind DACA. Al parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” The court decided that in rescinding DACA, DHS had not provided adequate reasons or followed proper procedures, which led it to conclude that “the rescission must be vacated.”48 The Court’s decision does not bar DHS from terminating DACA in the future, although the department would have to comply with procedural requirements in doing so.49 Title I of H.R. 6, as discussed above, would direct DHS to establish streamlined procedures for DACA recipients to apply for LPR status under the bil ’s legalization mechanism for unauthorized childhood arrivals. Other legislation considered by the 116th Congress likewise includes special provisions for the DACA population. A provision (§570B(a)) in P.L. 116-92 prohibits the involuntary separation from the U.S. military of an individual solely because he or prohibits the involuntary separation from the U.S. military of an individual solely because he or
she has DACA. The Homeownership for DREAMers Act (H.R. 3154), as reported by the House she has DACA. The Homeownership for DREAMers Act (H.R. 3154), as reported by the House
Financial Services Committee, would provide that DACA recipients could not be deemed Financial Services Committee, would provide that DACA recipients could not be deemed
ineligible for mortgage loans backed by the Federal Housing Administration, Fannie Mae, ineligible for mortgage loans backed by the Federal Housing Administration, Fannie Mae,
Freddie Mac, or the U.S. Department of Agriculture based solely on their DACA status. In Freddie Mac, or the U.S. Department of Agriculture based solely on their DACA status. In
addition, a House-reported version of the FY2020 Legislative Branch Appropriations Act (H.R. addition, a House-reported version of the FY2020 Legislative Branch Appropriations Act (H.R.
2779) included a 2779) included a ~~provision47~~provision50 to authorize the use of funds under the act to employ individuals to authorize the use of funds under the act to employ individuals
who are DACA recipients. who are DACA recipients.4851
Temporary Protected Status and Deferred Enforced
Departure
Congress created Temporary Protected Status (TPS) in 1990 (P.L. 101-649) to provide relief from Congress created Temporary Protected Status (TPS) in 1990 (P.L. 101-649) to provide relief from
removal and work authorization for foreign nationals in the United States from countries removal and work authorization for foreign nationals in the United States from countries
experiencing armed conflict, natural disaster, or other extraordinary conditions that prevent their experiencing armed conflict, natural disaster, or other extraordinary conditions that prevent their
safe return.safe return.4952 The United States currently provides TPS to approximately 411,000 individuals The United States currently provides TPS to approximately 411,000 individuals
from 10 countries.from 10 countries.5053 In addition, certain Liberians who have been in the United States since 2002 In addition, certain Liberians who have been in the United States since 2002
are protected from removal by Deferred Enforced Departure (DED), a form of blanket relief are protected from removal by Deferred Enforced Departure (DED), a form of blanket relief
similar to TPS. Unlike TPS, however, DED is not statutory but emanates from the President’s similar to TPS. Unlike TPS, however, DED is not statutory but emanates from the President’s
constitutional powers to conduct foreign relations. constitutional powers to conduct foreign relations.
The 116th Congress has acted on several bil s with provisions on TPS and DED. The Venezuela The 116th Congress has acted on several bil s with provisions on TPS and DED. The Venezuela
TPS Act of 2019 (H.R. 549), as passed by the House, would add Venezuela to the list of countries TPS Act of 2019 (H.R. 549), as passed by the House, would add Venezuela to the list of countries
designated for TPS. This designation would last for 18 months and could be extended by the DHS designated for TPS. This designation would last for 18 months and could be extended by the DHS
Secretary. Venezuelans who have been continuously present in the United States since the date of Secretary. Venezuelans who have been continuously present in the United States since the date of
of LPR status. 48 U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., -- S. Ct. -- , 2020 WL 3271746, at *3 (2020). 49 See CRS Legal Sidebar LSB10497, Supreme Court: DACA Rescission Violated the APA. 50 T he enacted FY2020 Legislative Branch Appropriations Act (P.L. 116-94, Div. E) does not include a DACA employment provision. 51 For information on current restrictions regarding DACA and federal employment, see CRS Legal Sidebar LSB10244, Are DACA Recipients Eligible for Federal Em ploym ent? 52 For more information on T PS, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues. 53 T hese countries are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. Congressional Research Service 12 link to page 12 link to page 13 Immigration Legislation and Issues in the 116th Congress enactment and meet certain other requirements would be eligible to register for TPS. In addition, enactment and meet certain other requirements would be eligible to register for TPS. In addition,
another TPS-related provision (P.L. 116-92, §570B(a)) prohibits the involuntary separation of a another TPS-related provision (P.L. 116-92, §570B(a)) prohibits the involuntary separation of a
member from the U.S. military solely because that individual has TPS. member from the U.S. military solely because that individual has TPS.
The Trump Administration announced terminations of TPS for 6 of the 10 designated countries, The Trump Administration announced terminations of TPS for 6 of the 10 designated countries,
but, as of the date of this report, they are on hold pending the outcome of litigation chal enging but, as of the date of this report, they are on hold pending the outcome of litigation chal enging
the terminations.the terminations.5154 If these terminations take effect, some 400,000 individuals currently covered If these terminations take effect, some 400,000 individuals currently covered
by TPS could lose protection from removal and work authorization.by TPS could lose protection from removal and work authorization.5255 Liberia’s DED grant is set Liberia’s DED grant is set
to expire on January 10, 2021. to expire on January 10, 2021.
Some Members of Congress have expressed an interest in providing longer-term relief to TPS Some Members of Congress have expressed an interest in providing longer-term relief to TPS
holders, most of whom have been living in the United States for at least 19 years. Title II of holders, most of whom have been living in the United States for at least 19 years. Title II of
House-passed H.R. 6 would enable aliens who were eligible for TPS or DED as of January 1, House-passed H.R. 6 would enable aliens who were eligible for TPS or DED as of January 1,
2017, and have been living in the United States for at least three years before the date of 2017, and have been living in the United States for at least three years before the date of
enactment to become LPRs. Certain individuals with TPS or DED protection would also be enactment to become LPRs. Certain individuals with TPS or DED protection would also be

~~47 T he enacted FY2020 Legislative Branch Appropriations Act (P.L. 116-94, Div. E) does not include a DACA~~
~~employment provision.~~
~~48 For information on current restrictions regarding DACA and federal employment, see CRS Legal Sidebar~~
LSB10244, Are DACA Recipients Eligible for Federal Em ploym ent?
~~49 For more information on T PS, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues.~~
~~50 T hese countries are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and~~
~~Yemen.~~
~~51 For information on this litigation, see CRS Legal Sidebar LSB10215,~~ ~~Federal District Court Enjoins the Department~~
~~of Hom eland Security from Term inating Tem porary Protected Status~~.
~~52 For additional information, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues.~~
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covered by the legalization provisions in Title I of H.R. 6 (see covered by the legalization provisions in Title I of H.R. 6 (see “Childhood Arrivals”) and Title I ) and Title I
of H.R. 5038 (see of H.R. 5038 (see “Agricultural Workers”). .
Separate from H.R. 6, the 116th Congress has enacted a pathway to LPR status for certain Separate from H.R. 6, the 116th Congress has enacted a pathway to LPR status for certain
Liberians. P.L. 116-92 includes a section on Liberian Refugee Immigration Fairness (§7611), Liberians. P.L. 116-92 includes a section on Liberian Refugee Immigration Fairness (§7611),
which al ows Liberian nationals who have been continuously present in the United States since which al ows Liberian nationals who have been continuously present in the United States since
November 20, 2014, and meet other requirements—whether or not they were covered by DED—November 20, 2014, and meet other requirements—whether or not they were covered by DED—
and their family members to obtain LPR status. and their family members to obtain LPR status.
Temporary Worker Programs
The INA provides for the admission of nonimmigrants to the United States to perform temporary The INA provides for the admission of nonimmigrants to the United States to perform temporary
work. Nonimmigrants are foreign nationals who are admitted to the country for a temporary work. Nonimmigrants are foreign nationals who are admitted to the country for a temporary
period of time and specific purpose. Nonimmigrant visa categories are identified by letters and period of time and specific purpose. Nonimmigrant visa categories are identified by letters and
numbers, based on the INA sections that authorize them. The “H” category is the major numbers, based on the INA sections that authorize them. The “H” category is the major
nonimmigrant visa category for temporary workers. It includes the H-2A visa for agricultural nonimmigrant visa category for temporary workers. It includes the H-2A visa for agricultural
workers and the H-2B visa for nonagricultural workers, as wel as the H-1B visa for specialty workers and the H-2B visa for nonagricultural workers, as wel as the H-1B visa for specialty
occupation workers.occupation workers.5356 Foreign workers may also enter the United States through other Foreign workers may also enter the United States through other
nonimmigrant visa categories. nonimmigrant visa categories.5457
H-2A and H-2B Visas
Bringing workers into the United States under either the H-2A program or H-2B program is a Bringing workers into the United States under either the H-2A program or H-2B program is a
multiagency process involving the U.S. Department of Labor (DOL), DHS, and the U.S. multiagency process involving the U.S. Department of Labor (DOL), DHS, and the U.S.
Department of State (DOS). As an initial step in the process, a prospective H-2A or H-2B Department of State (DOS). As an initial step in the process, a prospective H-2A or H-2B
employer must apply for DOL labor certification to ensure that U.S. workers are not available for employer must apply for DOL labor certification to ensure that U.S. workers are not available for
the jobs in question and that the hiring of foreign workers wil not adversely affect the wages and the jobs in question and that the hiring of foreign workers wil not adversely affect the wages and
54 For information on this litigation, see CRS Legal Sidebar LSB10215, Federal District Court Enjoins the Department of Hom eland Security from Term inating Tem porary Protected Status. 55 For additional information, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues. 56 INA Section 214(i)(1) defines specialty occupation as “an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 57 See CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States. Congressional Research Service 13 Immigration Legislation and Issues in the 116th Congress working conditions of U.S. workers. After receiving labor certification, the employer can submit working conditions of U.S. workers. After receiving labor certification, the employer can submit
an application, known as a petition, to DHS to bring in foreign workers. DHS’s U.S. Citizenship an application, known as a petition, to DHS to bring in foreign workers. DHS’s U.S. Citizenship
and Immigration Services (USCIS), which administers the nation’s lawful immigration system, is and Immigration Services (USCIS), which administers the nation’s lawful immigration system, is
responsible for adjudicating H-2A and H-2B petitions. If the petition is approved, a foreign responsible for adjudicating H-2A and H-2B petitions. If the petition is approved, a foreign
worker who is abroad can then go to a U.S. embassy or consulate to apply for an H-2A or H-2B worker who is abroad can then go to a U.S. embassy or consulate to apply for an H-2A or H-2B
nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that
he or she can use to apply for admission to the United States at a POE.he or she can use to apply for admission to the United States at a POE.5558 Under DHS regulations, Under DHS regulations,
participation in the H-2A and H-2B visa programs is limited to nationals of countries designated participation in the H-2A and H-2B visa programs is limited to nationals of countries designated
annual y by DHS, with the concurrence of DOS. annual y by DHS, with the concurrence of DOS.56

~~53 INA Section 214(i)(1) defines specialty occupation as “an occupation that requires theoretical and practical~~
~~application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific~~
~~specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”~~
~~54 See CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.~~
~~55 See CRS Report R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues.~~
~~56 For 2020, nationals of 84 countries are eligible to participate in the H-2A program and nationals of 81 countries are~~
~~eligible to participate in the H-2B program. See U.S. Department of Homeland Security, “ Identification of Foreign~~
~~Countries Whose Nationals Are Eligible T o Participate in the H–2A and H–2B Nonimmigrant Worker Programs,” 85~~
Federal Register 3067, January 17, 2020.
~~Congressional Research Service~~
13

~~Immigration Legislation and Issues in the 116th Congress~~
59
H-2A Visa for Agricultural Workers
The H-2A visa al ows for the temporary admission of foreign workers to the United States to The H-2A visa al ows for the temporary admission of foreign workers to the United States to
perform agricultural labor or services of a temporary or seasonal nature. It is governed by perform agricultural labor or services of a temporary or seasonal nature. It is governed by
provisions in the INA and by regulations issued by DHS and DOL.provisions in the INA and by regulations issued by DHS and DOL.5760 It is not subject to a It is not subject to a
numerical cap. numerical cap.
Title II of H.R. 5038, as passed by the House, proposes significant changes to the H-2A visa, Title II of H.R. 5038, as passed by the House, proposes significant changes to the H-2A visa,
including with respect to required wages. Currently, H-2A employers must pay the highest of including with respect to required wages. Currently, H-2A employers must pay the highest of
several wage rates: the federal or state minimum wage rate, prevailing wage rate, adverse effect several wage rates: the federal or state minimum wage rate, prevailing wage rate, adverse effect
wage rate (AEWR), or agreed-upon collective bargaining wage rate. In practice, the AEWR, wage rate (AEWR), or agreed-upon collective bargaining wage rate. In practice, the AEWR,
which is an average hourly wage for field and livestock workers combined in a state or region, is which is an average hourly wage for field and livestock workers combined in a state or region, is
often the highest of these rates. Among its wage-related provisions, H.R. 5038 would retain the often the highest of these rates. Among its wage-related provisions, H.R. 5038 would retain the
requirement for employers to pay the highest of the listed wage rates, but would change the way requirement for employers to pay the highest of the listed wage rates, but would change the way
the AEWR is determined. It proposes to calculate separate AEWRs for individual occupational the AEWR is determined. It proposes to calculate separate AEWRs for individual occupational
classifications, preferably by state or region if such data are reported. classifications, preferably by state or region if such data are reported.5861
Among its other H-2A provisions, H.R. 5038 proposes to establish a six-year Portable H–2A Visa Among its other H-2A provisions, H.R. 5038 proposes to establish a six-year Portable H–2A Visa
Pilot Program to enable a limited number of H-2A workers to perform agricultural labor for Pilot Program to enable a limited number of H-2A workers to perform agricultural labor for
employers who would not need to file H-2A petitions. However, the employers would need to go employers who would not need to file H-2A petitions. However, the employers would need to go
through a registration process, pay H-2A required wages, and meet other requirements. H.R. 5038 through a registration process, pay H-2A required wages, and meet other requirements. H.R. 5038
would also al ow DHS to approve petitions for H-2A workers to perform year-round agricultural would also al ow DHS to approve petitions for H-2A workers to perform year-round agricultural
work, subject to an initial annual numerical limitation of 20,000. work, subject to an initial annual numerical limitation of 20,000.
H-2B Visa for Nonagricultural Workers
The H-2B visa al ows for the temporary admission of foreign workers to the United States to The H-2B visa al ows for the temporary admission of foreign workers to the United States to
perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are
not available. While the INA does include some H-2B requirements, most are set forth in DHS not available. While the INA does include some H-2B requirements, most are set forth in DHS
and DOL regulations.and DOL regulations.5962 By law, the H-2B visa is subject to an annual numerical cap. Under the 58 See CRS Report R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues. 59 For 2020, nationals of 84 countries are eligible to participate in the H-2A program and nationals of 81 countries are eligible to participate in the H-2B program. See U.S. Department of Homeland Security, “ Identification of Foreign Countries Whose Nationals Are Eligible T o Participate in the H–2A and H–2B Nonimmigrant Worker Programs,” 85 Federal Register 3067, January 17, 2020. 60 ~~By law, the H-2B visa is subject to an annual numerical cap. Under the~~
~~INA, the total number of aliens who may be issued H-2B visas or otherwise provided with H-2B~~
~~nonimmigrant status in any fiscal year may not exceed 66,000. In recent years, the demand for H-~~
~~2B visas has exceeded the cap.60~~
~~As part of the H-2B application process, employers must accurately indicate the starting and~~
~~ending dates of their period of need for H-2B workers. Employers are not al owed to stagger the~~
~~entry of H-2B workers between these starting and ending dates. An exception to this staggered~~
~~entry prohibition, however, applies to H-2B employers in the seafood industry. First enacted as~~
~~part of the FY0214 Consolidated Appropriations Act (P.L. 113-76) and then extended in~~
~~subsequent annual appropriations measures, this provision permits an employer with an approved~~
~~H-2B petition to bring in H-2B workers under that petition any time during the 120-day period~~

57 For a discussion of H-2A statutory provisions and regulations, including a temporary rule issued by DHS in April For a discussion of H-2A statutory provisions and regulations, including a temporary rule issued by DHS in April
2020 in response to the COVID-19 emergency, see CRS Report R44849, 2020 in response to the COVID-19 emergency, see CRS Report R44849, H-2A and H-2B Tem porary Worker Visas:
Policy and Related Issues. .
58 61 For further discussion of the H-2A wage requirements and H.R. 5038, see CRS Report R44849, For further discussion of the H-2A wage requirements and H.R. 5038, see CRS Report R44849, H-2A and H-2B
Tem porary Worker Visas: Policy and Related Issues. .
5962 For a discussion of H-2B statutory provisions and regulations, including a temporary rule issued by DHS in May For a discussion of H-2B statutory provisions and regulations, including a temporary rule issued by DHS in May
~~2020 in response to the COVID-19 emergency, see CRS Report R44849,~~ ~~H-2A and H-2B Tem porary Worker Visas:~~
~~Policy and Related Issues~~.
~~60 See CRS Report R44306, The H-2B Visa and the Statutory Cap.~~
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14

~~link to page 26 link to page 26~~ ~~Immigration Legislation and Issues in the 116th Congress~~

Congressional Research Service 14 Immigration Legislation and Issues in the 116th Congress INA, the total number of aliens who may be issued H-2B visas or otherwise provided with H-2B nonimmigrant status in any fiscal year may not exceed 66,000. In recent years, the demand for H- 2B visas has exceeded the cap.63 As part of the H-2B application process, employers must accurately indicate the starting and ending dates of their period of need for H-2B workers. Employers are not al owed to stagger the entry of H-2B workers between these starting and ending dates. An exception to this staggered entry prohibition, however, applies to H-2B employers in the seafood industry. First enacted as part of the FY0214 Consolidated Appropriations Act (P.L. 113-76) and then extended in subsequent annual appropriations measures, this provision permits an employer with an approved H-2B petition to bring in H-2B workers under that petition any time during the 120-day period beginning on the employer’s starting date of need. In order to bring in workers between day 90 beginning on the employer’s starting date of need. In order to bring in workers between day 90
and day 120, though, the employer must conduct additional U.S. worker recruitment. and day 120, though, the employer must conduct additional U.S. worker recruitment.6164
A provision (§109) in Division A of the FY2020 Further Consolidated Appropriations Act (P.L. A provision (§109) in Division A of the FY2020 Further Consolidated Appropriations Act (P.L.
116-94) extends the H-2B seafood industry staggered entry exception for FY2020. Division A 116-94) extends the H-2B seafood industry staggered entry exception for FY2020. Division A
also extends for FY2020 other previously enacted H-2B provisions that address H-2B prevailing also extends for FY2020 other previously enacted H-2B provisions that address H-2B prevailing
wage determinations (§110) and prohibit the use of funds in the act to implement certain wage determinations (§110) and prohibit the use of funds in the act to implement certain
regulatory provisions related to the H-2B labor certification process (§111). regulatory provisions related to the H-2B labor certification process (§111).6265
In addition, P.L. 116-94 includes a provision on H-2B numerical limitations for FY2020 (Div. I, In addition, P.L. 116-94 includes a provision on H-2B numerical limitations for FY2020 (Div. I,
§105). This provision authorizes DHS to increase the number of aliens who may receive H-2B §105). This provision authorizes DHS to increase the number of aliens who may receive H-2B
visas in FY2020 beyond the statutory cap upon a determination that the needs of U.S. businesses visas in FY2020 beyond the statutory cap upon a determination that the needs of U.S. businesses
cannot be met by U.S. workers. The 116th Congress enacted the same provision for FY2019 in cannot be met by U.S. workers. The 116th Congress enacted the same provision for FY2019 in
P.L. 116-6 (Div. H, §105), and DHS made 30,000 additional H-2B visas available for that year.P.L. 116-6 (Div. H, §105), and DHS made 30,000 additional H-2B visas available for that year.6366
In early March 2020, DHS announced that it would use the authority provided by P.L. 116-94 to In early March 2020, DHS announced that it would use the authority provided by P.L. 116-94 to
make 35,000 supplemental H-2B visas available for the second half of FY2020, while make 35,000 supplemental H-2B visas available for the second half of FY2020, while
simultaneously taking steps to “promote integrity in the program” and “combat fraud and simultaneously taking steps to “promote integrity in the program” and “combat fraud and
abuse.”abuse.”6467 In early April, in the midst of the coronavirus pandemic, DHS said that it was putting In early April, in the midst of the coronavirus pandemic, DHS said that it was putting
the rule on the supplemental visas on hold. the rule on the supplemental visas on hold.6568
E-3 Visa for Specialty Occupation Workers
The REAL ID Act of 2005 (P.L. 109-13, Div. B, Title V) created a new E-3 nonimmigrant visa The REAL ID Act of 2005 (P.L. 109-13, Div. B, Title V) created a new E-3 nonimmigrant visa
category, which is currently limited to nationals of Australia. Like H-1B visas, E-3 visas are for category, which is currently limited to nationals of Australia. Like H-1B visas, E-3 visas are for
temporary workers in specialty occupations.temporary workers in specialty occupations.6669 The E-3 visa category has an annual numerical 2020 in response to the COVID-19 emergency, see CRS Report R44849, H-2A and H-2B Tem porary Worker Visas: Policy and Related Issues. 63 See CRS Report R44306, The H-2B Visa and the Statutory Cap. 64 ~~The E-3 visa category has an annual numerical~~
~~limit of 10,500,67 which has never been reached. H.R. 2877, as passed by the House, would make~~
~~Irish nationals eligible for E-3 nonimmigrant visas. The number of E-3 visas available to Irish~~
~~nationals in a fiscal year—if any—would be equal to the number of the al otted 10,500 visas left~~
~~unused by Australian E-3 workers in the previous fiscal year. H.R. 2877 would also require the~~
~~employer of an E-3 visa holder to participate in the E-Verify program (see “Electronic~~
~~Employment Eligibility Verification”).~~
~~Commonwealth of the Northern Mariana Islands~~
~~The Consolidated Natural Resources Act of 2008 (P.L. 110-229) extended U.S. immigration laws~~
~~to the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific.~~

61 T his H-2B seafood industry staggered entry provision was also incorporated into the 2015 DHS-DOL interim final T his H-2B seafood industry staggered entry provision was also incorporated into the 2015 DHS-DOL interim final
rule on H-2B employment. For further discussion of the H-2B staggered entry provision, see CRS Report R44306, rule on H-2B employment. For further discussion of the H-2B staggered entry provision, see CRS Report R44306, The
H-2B Visa and the Statutory Cap. .
6265 See CRS Report R44849, See CRS Report R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues. .
6366 See CRS Report R44306, See CRS Report R44306, The H-2B Visa and the Statutory Cap. .
6467 U.S. Department of Homeland Security, “ DHS to Improve Integrity of Visa Program for Foreign Workers,” March 5, U.S. Department of Homeland Security, “ DHS to Improve Integrity of Visa Program for Foreign Workers,” March 5,
2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers. 2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
65 68 According to DHS, “ DHS’s rule on the H-2B cap is on hold pending review due to present economic circumstances. According to DHS, “ DHS’s rule on the H-2B cap is on hold pending review due to present economic circumstances.
No additional H-2B visas will be released until further notice”; Suzanne Monyak, “ DHS Halts Extra Guestworker No additional H-2B visas will be released until further notice”; Suzanne Monyak, “ DHS Halts Extra Guestworker
Visas As Unemployment Jumps,” Visas As Unemployment Jumps,” Law360, April 2, 2020. , April 2, 2020.
6669 INA Section 214(i)(1) defines INA Section 214(i)(1) defines specialty occupation as “an occupation that requires theoretical and practical as “an occupation that requires theoretical and practical
application of a body of highly specialized knowledge and attainment of a bachelor’s or application of a body of highly specialized knowledge and attainment of a bachelor’s or ~~higher~~high er degree in the specific ~~degree in the specific~~
~~specialt y (or its equivalent) as a minimum for entry into the occupation in the United States.”~~
~~67 INA §214(g)(11).~~
Congressional Research Service Congressional Research Service
15 15

link to page link to page 26 link to page 26 link to page 17 link to page 27 Immigration Legislation and Issues in the 116th Congress limit of 10,500,70 which has never been reached. H.R. 2877, as passed by the House, would make Irish nationals eligible for E-3 nonimmigrant visas. The number of E-3 visas available to Irish nationals in a fiscal year—if any—would be equal to the number of the al otted 10,500 visas left unused by Australian E-3 workers in the previous fiscal year. H.R. 2877 would also require the employer of an E-3 visa holder to participate in the E-Verify program (see “Electronic Employment Eligibility Verification”). Commonwealth of the Northern Mariana Islands The Consolidated Natural Resources Act of 2008 (P.L. 110-229) extended U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific. ~~17 link to page 27~~ ~~Immigration Legislation and Issues in the 116th Congress~~

P.L. 110-229 aimed, in particular, to provide for federal regulation and oversight of the admission P.L. 110-229 aimed, in particular, to provide for federal regulation and oversight of the admission
of foreign workers to the territory. It established a transition period (currently scheduled to end on of foreign workers to the territory. It established a transition period (currently scheduled to end on
December 31, 2029) to accommodate the move from the former CNMI foreign worker permit December 31, 2029) to accommodate the move from the former CNMI foreign worker permit
system to the U.S. immigration system, during which it authorized the issuance of CNMI-Only system to the U.S. immigration system, during which it authorized the issuance of CNMI-Only
Transitional Worker (CW-1) visas. This visa classification allows CNMI employers to apply for Transitional Worker (CW-1) visas. This visa classification allows CNMI employers to apply for
permission to employ foreign workers who are otherwise ineligible to work under the permission to employ foreign workers who are otherwise ineligible to work under the
nonimmigrant worker categories in the INA. P.L. 110-229 also created a CNMI-only investor visa nonimmigrant worker categories in the INA. P.L. 110-229 also created a CNMI-only investor visa
for persons who previously had investor permits under the territorial system. for persons who previously had investor permits under the territorial system.
In the 115th Congress, the Northern Mariana Islands Economic Expansion Act (P.L. 115-53) In the 115th Congress, the Northern Mariana Islands Economic Expansion Act (P.L. 115-53)
revised the CW-1 classification such that CW-1 visas are general y no longer available to workers revised the CW-1 classification such that CW-1 visas are general y no longer available to workers
who wil be performing jobs classified as construction and extraction occupations by DOL.who wil be performing jobs classified as construction and extraction occupations by DOL.6871 The The
Northern Mariana Islands U.S. Workforce Act of 2018 (P.L. 115-218) set decreasing annual Northern Mariana Islands U.S. Workforce Act of 2018 (P.L. 115-218) set decreasing annual
numerical limitations on the CW-1 visa during the transition period. In the 116th Congress, H.R. numerical limitations on the CW-1 visa during the transition period. In the 116th Congress, H.R.
4479, as ordered to be reported by the House Natural Resources Committee, would al ow for 4479, as ordered to be reported by the House Natural Resources Committee, would al ow for
3,000 CW-1 workers in construction and extraction occupations for each of FY2020, FY2021, 3,000 CW-1 workers in construction and extraction occupations for each of FY2020, FY2021,
and FY2022. These workers would be limited to nationals of countries eligible to participate in and FY2022. These workers would be limited to nationals of countries eligible to participate in
the H-2B program in 2018 (see the H-2B program in 2018 (see “H-2B Visa”) who are performing disaster- or emergency-related ) who are performing disaster- or emergency-related
work. They would not be counted against the CW-1 annual caps. work. They would not be counted against the CW-1 annual caps.
Other legislation considered in the 116th Congress focuses on long-time CNMI residents. Other legislation considered in the 116th Congress focuses on long-time CNMI residents.
Beginning in 2011, USCIS established special parole programs that granted permission to certain Beginning in 2011, USCIS established special parole programs that granted permission to certain
populations to reside in the CNMI (see populations to reside in the CNMI (see “Parole”). These populations included immediate relatives ). These populations included immediate relatives
of U.S. citizens legal y residing in the CNMI and certain CNMI-born individuals considered of U.S. citizens legal y residing in the CNMI and certain CNMI-born individuals considered
“stateless.”“stateless.”6972 In December 2018, USCIS announced plans to end the CNMI parole programs in In December 2018, USCIS announced plans to end the CNMI parole programs in
accordance with Executive Order 13767. accordance with Executive Order 13767.70
~~The Northern Mariana Islands Long-Term Legal Residents Relief Act (P.L. 116-24) establishes a~~
~~new CNMI Resident Status for certain individuals, including those granted parole under the~~
~~terminated parole programs. This status al ows an individual to be treated as an alien lawfully~~
~~admitted to the Commonwealth only. H.R. 560, as passed by the House, would provide CNMI~~
~~Resident Status to two categories of long-term CNMI residents not covered by P.L. 116-24:~~
~~workers and investors who were original y admitted and authorized to stay indefinitely when the~~
~~CNMI controlled immigration to the territory.~~
~~Permanent Employment-Based Immigration~~
~~The current employment-based LPR (green card) system consists of five numerical y limited~~
~~preference categories.71 To qualify within one of these employment-based (EB) categories, a~~

6873 specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 70 INA §214(g)(11). 71 Exceptions are provided for workers who have maintained continuous CW -1 status for the same employer since Exceptions are provided for workers who have maintained continuous CW -1 status for the same employer since
before October 1, 2015. before October 1, 2015.
69 72 For more information, see U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, For more information, see U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“Parole for Immediate Relatives of U.S. Citizens and Certain Stateless Individuals,” January 17, 2017, “Parole for Immediate Relatives of U.S. Citizens and Certain Stateless Individuals,” January 17, 2017,
https://www.uscis.gov/legal-resources/immigration-commonwealth-northern-mariana-islands-cnmi/parole-immediate-https://www.uscis.gov/legal-resources/immigration-commonwealth-northern-mariana-islands-cnmi/parole-immediate-
relatives-us-citizens-and-certain-stateless-individuals. relatives-us-citizens-and-certain-stateless-individuals.
7073 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “T ermination of the Categorical U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “T ermination of the Categorical
Parole Programs for Certain Individuals Present in the Commonwealth of the Northern Mariana Islands (CNMI),” June Parole Programs for Certain Individuals Present in the Commonwealth of the Northern Mariana Islands (CNMI),” June
28, 2019, https://www.uscis.gov/news/alerts/termination-categorical-parole-programs-certain-individuals-present -28, 2019, https://www.uscis.gov/news/alerts/termination-categorical-parole-programs-certain-individuals-present -
commonwealth-northern-mariana-islands-cnmi. Note that the body of this news alert was issued on December 27, commonwealth-northern-mariana-islands-cnmi. Note that the body of this news alert was issued on December 27,
~~2018; the alert was updated in June 2019 following enactment of P.L. 116-24.~~
~~71 For an overview of the U.S. system of permanent admissions, of which employment -based immigration is a main~~
~~Congressional Research Service~~
16

~~Immigration Legislation and Issues in the 116th Congress~~

Congressional Research Service 16 Immigration Legislation and Issues in the 116th Congress The Northern Mariana Islands Long-Term Legal Residents Relief Act (P.L. 116-24) establishes a new CNMI Resident Status for certain individuals, including those granted parole under the terminated parole programs. This status al ows an individual to be treated as an alien lawfully admitted to the Commonwealth only. H.R. 560, as passed by the House, would provide CNMI Resident Status to two categories of long-term CNMI residents not covered by P.L. 116-24: workers and investors who were original y admitted and authorized to stay indefinitely when the CNMI controlled immigration to the territory. Permanent Employment-Based Immigration The current employment-based LPR (green card) system consists of five numerical y limited preference categories.74 To qualify within one of these employment-based (EB) categories, a foreign national must be (1) a person of extraordinary ability in a specified area, (2) a person of foreign national must be (1) a person of extraordinary ability in a specified area, (2) a person of
exceptional ability in a specified area, (3) a shortage worker who is either skil ed (or professional) exceptional ability in a specified area, (3) a shortage worker who is either skil ed (or professional)
or unskil ed, (4) a person who meets the definition of a or unskil ed, (4) a person who meets the definition of a special immigrant,,7275 or (5) an investor or (5) an investor
who wil start a business that creates at least 10 new jobs.who wil start a business that creates at least 10 new jobs.7376 (These preference categories are (These preference categories are
commonly referred to as EB-1, EB-2, etc.) The INA al ocates 140,000 admissions annual y for al commonly referred to as EB-1, EB-2, etc.) The INA al ocates 140,000 admissions annual y for al
employment-preference immigrants (including accompanying family members). How prospective employment-preference immigrants (including accompanying family members). How prospective
immigrants apply for employment-based LPR status depends on where they reside. If they live immigrants apply for employment-based LPR status depends on where they reside. If they live
abroad, they may apply as new immigrant arrivals. If they reside in the United States, they may abroad, they may apply as new immigrant arrivals. If they reside in the United States, they may
apply to apply to adjust status from a temporary (nonimmigrant) status (e.g., H-1B temporary specialty from a temporary (nonimmigrant) status (e.g., H-1B temporary specialty
occupation worker) to LPR status. occupation worker) to LPR status.7477
EB-1, EB-2, and EB-3 Workers
Currently, there is a backlog of almost 1 mil ion foreign nationals and accompanying family Currently, there is a backlog of almost 1 mil ion foreign nationals and accompanying family
members lawfully residing in the United States who have been approved for, and are waiting to members lawfully residing in the United States who have been approved for, and are waiting to
receive, employment-based green cards receive, employment-based green cards.7578 Most are being sponsored through the first three Most are being sponsored through the first three
employment-based categories. The backlog exists, and is projected to increase each year, because employment-based categories. The backlog exists, and is projected to increase each year, because
the number of foreign workers who self-sponsor or are sponsored by U.S. employers for green the number of foreign workers who self-sponsor or are sponsored by U.S. employers for green
cards each year exceeds the INA annual al ocation. In addition to this numerical limit, there is a cards each year exceeds the INA annual al ocation. In addition to this numerical limit, there is a
statutory 7% per-country ceiling applied to each preference category, which prevents the statutory 7% per-country ceiling applied to each preference category, which prevents the
monopolization of employment-based green cards by foreign nationals from a few countries. This monopolization of employment-based green cards by foreign nationals from a few countries. This
per-country ceiling has created decades-long waits for nationals from large migrant-sending per-country ceiling has created decades-long waits for nationals from large migrant-sending
countries such as India and China. countries such as India and China.
~~Legislation under consideration in the 116th Congress would significantly impact the first three~~
~~employment-based categories. The Fairness for High-Skil ed Immigrants Act (H.R. 1044), as~~
~~passed by the House, would eliminate the 7% per-country ceiling. It would al ocate employment-~~
~~based visas to prospective immigrants by application date on a first-come, first-served basis~~
~~without regard to country of origin. However, it would not reduce the backlog because it would~~
~~not increase the number of foreign nationals receiving green cards. As passed by the House, H.R.~~
~~1044 would include a three-year transition period from the current system to the new system. A~~
~~related bil of the same name has been introduced in the Senate as S. 386, and is under~~
~~consideration by the Senate Judiciary Committee.76~~
~~Separately, Section 207 of House-passed H.R. 5038, the Farm Workforce Modernization Act of~~
~~2019, would increase the number of immigrant visas available for EB-3 preference category~~
~~immigrants from the current 40,040 to 80,040. The additional 40,000 immigrant visas would be~~

2018; the alert was updated in June 2019 following enactment of P.L. 116-24. 74 For an overview of the U.S. system of permanent admissions, of which employment -based immigration is a main component, as well as information about the five component, as well as information about the five ~~employment~~em ployment-based preference categories, see CRS Report R42866, -based preference categories, see CRS Report R42866,
Perm anent Legal Im m igration to the United States: Policy Overview. .
72 75 Special immigrants include religious workers, long-serving employees of the U.S. government abroad, and Iraqi and Special immigrants include religious workers, long-serving employees of the U.S. government abroad, and Iraqi and
Afghan nationals who have worked on behalf of the U.S. government in their home countries. See CRS Report Afghan nationals who have worked on behalf of the U.S. government in their home countries. See CRS Report
R43725, R43725, Iraqi and Afghan Special Im migrant Visa Program s. .
7376 See CRS Report R45447, See CRS Report R45447, Permanent Employment-Based Immigration and the Per-country Ceiling. .
7477 See CRS Report R45040, See CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States. .
7578 See CRS Report R46291, See CRS Report R46291, The Employment-Based Immigration Backlog. A large proportion of these workers are . A large proportion of these workers are
seeking to adjust from H-1B nonimmigrant status to LPR status through the first three employment-based categories. seeking to adjust from H-1B nonimmigrant status to LPR status through the first three employment-based categories.
For more information, see CRS Report R45040, For more information, see CRS Report R45040, Im m igration: Nonim migrant (Tem porary) Admissions to the United
States. .
~~76 For further discussion of S. 386 and the issue of removing the per-country ceiling for~~Congressional Research Service 17 link to page 13 Immigration Legislation and Issues in the 116th Congress Legislation under consideration in the 116th Congress would significantly impact the first three employment-based categories. The Fairness for High-Skil ed Immigrants Act (H.R. 1044), as passed by the House, would eliminate the 7% per-country ceiling. It would al ocate employment- employment-based visas to prospective immigrants by application date on a first-come, first-served basis without regard to country of origin. However, it would not reduce the backlog because it would not increase the number of foreign nationals receiving green cards. As passed by the House, H.R. 1044 would include a three-year transition period from the current system to the new system. A related bil of the same name has been introduced in the Senate as S. 386, and is under consideration by the Senate Judiciary Committee.79 Separately, Section 207 of House-passed H.R. 5038, the Farm Workforce Modernization Act of 2019, would increase the number of immigrant visas available for EB-3 preference category immigrants from the current 40,040 to 80,040. The additional 40,000 immigrant visas would be ~~based immigrants,~~
~~see CRS Report R46291, The Em ploym ent-Based Im migration Backlog.~~
~~Congressional Research Service~~
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~~link to page 13~~ ~~Immigration Legislation and Issues in the 116th Congress~~

reserved for qualified workers who either could perform agricultural labor in the United States or reserved for qualified workers who either could perform agricultural labor in the United States or
could demonstrate employment as an H–2A temporary agricultural worker in the United States could demonstrate employment as an H–2A temporary agricultural worker in the United States
for 100 days in each of 10 years.for 100 days in each of 10 years.7780 This latter group of qualified agricultural workers would be This latter group of qualified agricultural workers would be
able to self-petition for immigrant visas, whereas al other EB-3 prospective immigrants would able to self-petition for immigrant visas, whereas al other EB-3 prospective immigrants would
stil need an employer to petition on their behalf. The agricultural worker immigrant visas would stil need an employer to petition on their behalf. The agricultural worker immigrant visas would
not be subject to the 7% ceiling governing al employment-based immigrant visas or to the labor not be subject to the 7% ceiling governing al employment-based immigrant visas or to the labor
certification requirements for al EB-3 immigrant visas.certification requirements for al EB-3 immigrant visas.7881 (For additional discussion of H.R. 5038, (For additional discussion of H.R. 5038,
see see “Agricultural Workers.”) )
EB-4 Special Immigrants
Special immigrants comprise the fourth category of permanent employment-based admissions Special immigrants comprise the fourth category of permanent employment-based admissions
under the INA. Over the years, various special immigrant classifications have been established in under the INA. Over the years, various special immigrant classifications have been established in
statute. While the classifications cover different groups, there are some common elements across statute. While the classifications cover different groups, there are some common elements across
multiple beneficiary populations, such as U.S. government employees or other public service-type multiple beneficiary populations, such as U.S. government employees or other public service-type
workers.workers.7982 The 116th Congress has acted on legislation on the permanent special immigrant The 116th Congress has acted on legislation on the permanent special immigrant
category for juveniles and the temporary special immigrant programs for Afghans employed by or category for juveniles and the temporary special immigrant programs for Afghans employed by or
on behalf of the U.S. government and for non-minister religious workers. on behalf of the U.S. government and for non-minister religious workers.
Special Immigrant Juveniles
The INA defines a The INA defines a special immigrant juvenile (SIJ) as an unmarried foreign national under age 21 (SIJ) as an unmarried foreign national under age 21
in the United States who possesses a juvenile court order declaring that he or she is a ward in the United States who possesses a juvenile court order declaring that he or she is a ward
(dependent) of the court; is unable to be reunified with (dependent) of the court; is unable to be reunified with one or both parents because of abuse, because of abuse,
abandonment, or neglect; and is granted SIJ status by DHS. The INA further specifies that to be abandonment, or neglect; and is granted SIJ status by DHS. The INA further specifies that to be
eligible for SIJ status, it must not be in the alien’s best interests to return to his or her home eligible for SIJ status, it must not be in the alien’s best interests to return to his or her home
~~country.80 A person with SIJ status can apply to adjust to LPR status through the fourth~~
~~employment-based immigrant category for special immigrants. Concerns that increasing numbers~~
~~of unaccompanied alien children are using SIJ status to acquire LPR status have some~~
~~immigration enforcement advocates cal ing for legislation to narrow the SIJ criteria.81~~
~~S. 1494, as reported by the Senate Judiciary Committee, would limit eligibility for SIJ status to~~
~~those who are not able to reunify with either parent, rather than with one or both parents.82 The~~
~~bil would also give DHS the non-reviewable discretion to determine (1) if an order of~~

77 79 For further discussion of S. 386 and the issue of removing the per-country ceiling for employment-based immigrants, see CRS Report R46291, The Em ploym ent-Based Im migration Backlog. 80 For more information on the H-2A temporary agricultural worker program, see CRS Report R44849, For more information on the H-2A temporary agricultural worker program, see CRS Report R44849, H-2A and H-2B
Tem porary Worker Visas: Policy and Related Issues. .
7881 Before an individual can be granted an EB-3 visa, DOL must determine through its foreign labor certification Before an individual can be granted an EB-3 visa, DOL must determine through its foreign labor certification
program that (1) there are insufficient able, willing, qualified, and available U.S. workers to perform the work in program that (1) there are insufficient able, willing, qualified, and available U.S. workers to perform the work in
question; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of question; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of
similarly employed U.S. workers. INA §212(a)(5), 8 U.S.C. §1182(a)(5). similarly employed U.S. workers. INA §212(a)(5), 8 U.S.C. §1182(a)(5).
7982 For background information on the special immigrant category, see CRS Report R43725, For background information on the special immigrant category, see CRS Report R43725, Iraqi and Afghan Special
Im m igrant Visa Program s. .
~~80 For background information, see archived CRS Report R43703, Special Immigrant Juveniles: In Brief.~~
~~81 See, for example, Andrew R. Arthur, Catch and Release Escape Hatches: Loopholes that encourage illegal entry,~~
~~Center for Immigration Studies, May 4, 2018.~~
~~82 For example, a child may not be able to be reunified with her mother, and the mother and father ma y live apart, in~~
~~which case the child could not be reunified with one parent (the mother) or both parents. However, the child in this~~
~~example could be reunified with her father. Current statute would allow her to qualify for SIJ status, By contrast, the~~
~~provision in S. 1494 would prevent this child from qualifying for SIJ status because she could be reunified with at least~~
~~one of her parents (in this case, her father).~~
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Congressional Research Service 18 Immigration Legislation and Issues in the 116th Congress country.83 A person with SIJ status can apply to adjust to LPR status through the fourth employment-based immigrant category for special immigrants. Concerns that increasing numbers of unaccompanied alien children are using SIJ status to acquire LPR status have some immigration enforcement advocates cal ing for legislation to narrow the SIJ criteria.84 S. 1494, as reported by the Senate Judiciary Committee, would limit eligibility for SIJ status to those who are not able to reunify with either parent, rather than with one or both parents.85 The bil would also give DHS the non-reviewable discretion to determine (1) if an order of dependency or custody had been granted by the court primarily to provide LPR status to the dependency or custody had been granted by the court primarily to provide LPR status to the
foreign national, and (2) whether the court had appropriate jurisdiction to do so. foreign national, and (2) whether the court had appropriate jurisdiction to do so.
Afghan Special Immigrants
The FY2009 Omnibus Appropriations Act (P.L. 111-8) established a temporary special immigrant The FY2009 Omnibus Appropriations Act (P.L. 111-8) established a temporary special immigrant
visa (SIV) program to grant LPR status to certain Afghan nationals employed by or on behalf of visa (SIV) program to grant LPR status to certain Afghan nationals employed by or on behalf of
the U.S. government in Afghanistan; this classification, as amended, also applies to certain the U.S. government in Afghanistan; this classification, as amended, also applies to certain
employees of the International Security Assistance Force.employees of the International Security Assistance Force.8386 This Afghan SIV program was This Afghan SIV program was
initial y capped at 1,500 principal aliens annual y for FY2009 through FY2013, but a subsequent initial y capped at 1,500 principal aliens annual y for FY2009 through FY2013, but a subsequent
series of laws provided additional visas. By the start of the 116th Congress, 14,500 visas had been series of laws provided additional visas. By the start of the 116th Congress, 14,500 visas had been
made available for issuance after December 19, 2014, subject to an application deadline of made available for issuance after December 19, 2014, subject to an application deadline of
December 31, 2020. December 31, 2020.8487
In the 116th Congress, P.L. 116-6 (Div. F, §7076) provided an additional 4,000 visas for this In the 116th Congress, P.L. 116-6 (Div. F, §7076) provided an additional 4,000 visas for this
Afghan SIV program, for a total of 18,500 visas available for issuance after December 19, 2014, Afghan SIV program, for a total of 18,500 visas available for issuance after December 19, 2014,
but made no change to the application deadline. This law also made the funding for the additional but made no change to the application deadline. This law also made the funding for the additional
4,000 visas conditional on DOS developing a system for prioritizing the processing of Afghan 4,000 visas conditional on DOS developing a system for prioritizing the processing of Afghan
SIV applications and submitting specified reports. P.L. 116-92(Div. A, §1219) modifies the SIV applications and submitting specified reports. P.L. 116-92(Div. A, §1219) modifies the
Afghan SIV eligibility criteria to eliminate certain requirements. It also increases the number of Afghan SIV eligibility criteria to eliminate certain requirements. It also increases the number of
visas available for issuance to 22,500 and extends the application deadline to December 31, 2021. visas available for issuance to 22,500 and extends the application deadline to December 31, 2021.
Special Immigrant Religious Workers
Religious workers are also the subject of a special immigrant category. DHS regulations define a Religious workers are also the subject of a special immigrant category. DHS regulations define a
religious worker as a minister or an individual engaged in and qualified for a religious occupation as a minister or an individual engaged in and qualified for a religious occupation
or vocation according to the denomination’s standards. While the statutory provision for the or vocation according to the denomination’s standards. While the statutory provision for the
admission of ministers of religion is permanent, the provision admitting other religious workers admission of ministers of religion is permanent, the provision admitting other religious workers
has always had a sunset date. The 116th Congress extended the special immigrant program for has always had a sunset date. The 116th Congress extended the special immigrant program for
83 For background information, see archived CRS Report R43703, Special Immigrant Juveniles: In Brief. 84 See, for example, Andrew R. Arthur, Catch and Release Escape Hatches: Loopholes that encourage illegal entry, Center for Immigration Studies, May 4, 2018. 85 For example, a child may not be able to be reunified with her mother, and the mother and father may live apart, in which case the child could not be reunified with one parent (the mother) or both parents. However, the child in this example could be reunified with her father. Current statute would allow her to qualify for SIJ status, By contrast, the provision in S. 1494 would prevent this child from qualifying for SIJ status because she could be reunified with at least one of her parents (in this case, her father). 86 P.L. 111-8, Div. F, T itle VI, 8 USC §1101 note. A separate permanent special immigrant visa classification covers Afghans (and Iraqis) who have worked for the United States as translators or interpreters. See CRS Report R43725, Iraqi and Afghan Special Im m igrant Visa Program s. 87 See CRS Report R43725, Iraqi and Afghan Special Immigrant Visa Programs. Congressional Research Service 19 Immigration Legislation and Issues in the 116th Congress non-minister religious workers through September 30, 2019, in P.L. 116-6 (Div. H, §102) and non-minister religious workers through September 30, 2019, in P.L. 116-6 (Div. H, §102) and
through September 30, 2020, in P.L. 116-94 (Div. I, §102). through September 30, 2020, in P.L. 116-94 (Div. I, §102).
EB-5 Immigrant Investors
The fifth preference category under the INA employment-based immigration system is for The fifth preference category under the INA employment-based immigration system is for
immigrant investors coming to the United States. The stated aim of the immigrant investor visa, immigrant investors coming to the United States. The stated aim of the immigrant investor visa,
commonly referred to as the EB-5 visa, is to benefit the U.S. economy, primarily through commonly referred to as the EB-5 visa, is to benefit the U.S. economy, primarily through
employment creation and an influx of foreign capital. EB-5 visas are designated for individuals employment creation and an influx of foreign capital. EB-5 visas are designated for individuals
wishing to develop a new commercial enterprise in the United States. The INA stipulates that for wishing to develop a new commercial enterprise in the United States. The INA stipulates that for
an investor to qualify, the enterprise must create or preserve at least 10 jobs, and the individual an investor to qualify, the enterprise must create or preserve at least 10 jobs, and the individual
must invest a specified amount of capital in the enterprise. must invest a specified amount of capital in the enterprise.8588
In 1992, P.L. 102-395 authorized a temporary program to achieve the economic activity and job In 1992, P.L. 102-395 authorized a temporary program to achieve the economic activity and job
creation goals of the EB-5 visa category by encouraging investment in economic units known as creation goals of the EB-5 visa category by encouraging investment in economic units known as

~~83 P.L. 111-8, Div. F, T itle VI, 8 USC §1101 note. A separate permanent special immigrant visa classification covers~~
~~Afghans (and Iraqis) who have worked for the United States as translators or interpreters. See CRS Report R43725,~~
Iraqi and Afghan Special Im m igrant Visa Program s.
~~84 See CRS Report R43725, Iraqi and Afghan Special Immigrant Visa Programs.~~
~~85 A 2019 DHS final rule substantially revised the EB-5 program. See U.S. Department of Homeland Security, “EB–5~~
~~Immigrant Investor Program Modernization,” 84 Federal Register 35750, July 24, 2019.~~
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~~Immigration Legislation and Issues in the 116th Congress~~

~~Regional Centers.86~~Regional Centers.89 The Regional Center Program is intended to provide a coordinated focus for The Regional Center Program is intended to provide a coordinated focus for
foreign investment toward specific geographic regions. The overwhelming majority of EB-5 foreign investment toward specific geographic regions. The overwhelming majority of EB-5
immigrant investors come through this program. P.L. 116-6 extended the Regional Center immigrant investors come through this program. P.L. 116-6 extended the Regional Center
Program through September 30, 2019 (Div. H, §104), and P.L. 116-94 extends it through Program through September 30, 2019 (Div. H, §104), and P.L. 116-94 extends it through
September 30, 2020 (Div. I, §104). September 30, 2020 (Div. I, §104).
Asylum and Refugee Status
The INA provides for the granting of asylum and refugee status to foreign nationals who meet the The INA provides for the granting of asylum and refugee status to foreign nationals who meet the
act’s definition of a refugee as wel as other requirements particular to each category. There is no act’s definition of a refugee as wel as other requirements particular to each category. There is no
fee for applying for these types of humanitarian relief. The INA defines a fee for applying for these types of humanitarian relief. The INA defines a refugee, in general, as a , in general, as a
person who is unable or unwil ing to return to his or her home country because of persecution or a person who is unable or unwil ing to return to his or her home country because of persecution or a
wel -founded fear of persecution based on one of five characteristics: race, religion, nationality, wel -founded fear of persecution based on one of five characteristics: race, religion, nationality,
membership in a particular social group, or political opinion. After one year in the United States membership in a particular social group, or political opinion. After one year in the United States
as an asylee (a person granted asylum) or a refugee, an individual can apply for LPR status. as an asylee (a person granted asylum) or a refugee, an individual can apply for LPR status.8790
While applicants for asylum and refugee status are subject to the same persecution standard, While applicants for asylum and refugee status are subject to the same persecution standard,
procedures under the programs differ. Depending on the circumstances, foreign nationals who are procedures under the programs differ. Depending on the circumstances, foreign nationals who are
present in the United States or arriving in the United States (whether or not at POEs) may be able present in the United States or arriving in the United States (whether or not at POEs) may be able
to apply for asylum with USCIS or seek asylum before an EOIR immigration judge during to apply for asylum with USCIS or seek asylum before an EOIR immigration judge during
removal proceedings. The INA provides that an arriving foreign national who lacks proper removal proceedings. The INA provides that an arriving foreign national who lacks proper
immigration documents or engages in fraud or misrepresentation can be placed in a streamlined immigration documents or engages in fraud or misrepresentation can be placed in a streamlined
removal proceeding known as expedited removal. If, however, an alien placed in expedited removal proceeding known as expedited removal. If, however, an alien placed in expedited
removal expresses a fear of persecution and a USCIS asylum officer determines that the removal expresses a fear of persecution and a USCIS asylum officer determines that the
individual has a individual has a credible fear of persecution (defined in the INA to mean that there is a (defined in the INA to mean that there is a
“significant possibility” that the alien could establish eligibility for asylum), then he or she is “significant possibility” that the alien could establish eligibility for asylum), then he or she is
~~referred to an EOIR immigration judge for a hearing.88 By contrast, refugees are processed and~~
~~admitted to the United States from abroad. DOS’s Bureau of Population, Refugees, and Migration~~
~~(PRM) coordinates and manages the U.S. refugee program, and USCIS makes final~~
~~determinations about eligibility for admission.~~
~~Asylum System~~
~~S. 1494, as reported by the Senate Judiciary Committee, would make changes to the statutory~~
~~asylum process.89 It would tighten the credible fear of persecution standard described above by~~
~~redefining the term to mean that “it is more likely than not that the alien would be able to~~
~~establish eligibility for asylum.” For an officer to make a positive credible fear finding, he or she~~
~~would also need to determine that “it is more likely than not that the statements made by the alien~~
~~or on behalf of the alien are true.”~~

86 88 A 2019 DHS final rule substantially revised the EB-5 program. See U.S. Department of Homeland Security, “EB–5 Immigrant Investor Program Modernization,” 84 Federal Register 35750, July 24, 2019. 89 P.L. 102-395, Title VI, §610. DHS regulations define a Regional Center as a public or private economic unit engaged P.L. 102-395, Title VI, §610. DHS regulations define a Regional Center as a public or private economic unit engaged
in the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital in the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital
investment. 8 C.F.R. §204.6(e). investment. 8 C.F.R. §204.6(e).
87 90 In the case of refugees, the INA requires application for LPR status after one year. INA §209(a), 8 U.S.C. In the case of refugees, the INA requires application for LPR status after one year. INA §209(a), 8 U.S.C.
§1159(a).T here is no comparable statutory requirement for asylees. §1159(a).T here is no comparable statutory requirement for asylees.
~~88 See CRS Report R45539, Immigration: U.S. Asylum Policy. T his report discusses statutory asylum provisions as well~~
~~as asylum-related policies implemented by the T rump Administration. Also see CRS In Focus IF11363,~~ ~~Processing~~
~~Aliens at the U.S.-Mexico Border: Recent Policy Changes; and CRS Infographic IG10017,~~ ~~Processing of Adults and~~
~~Fam ily Units Arriving at the Southern Border Without Valid Docum ents~~.
~~89 For background information on asylum, see CRS Report R45539, Immigration: U.S. Asylum Policy.~~
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~~link to page 24~~ ~~Immigration Legislation and Issues in the 116th Congress~~
Congressional Research Service 20 link to page 24 Immigration Legislation and Issues in the 116th Congress referred to an EOIR immigration judge for a hearing.91 By contrast, refugees are processed and admitted to the United States from abroad. DOS’s Bureau of Population, Refugees, and Migration (PRM) coordinates and manages the U.S. refugee program, and USCIS makes final determinations about eligibility for admission. Asylum System S. 1494, as reported by the Senate Judiciary Committee, would make changes to the statutory asylum process.92 It would tighten the credible fear of persecution standard described above by redefining the term to mean that “it is more likely than not that the alien would be able to establish eligibility for asylum.” For an officer to make a positive credible fear finding, he or she would also need to determine that “it is more likely than not that the statements made by the alien or on behalf of the alien are true.”
Among the other changes S. 1494 would make to the asylum system, only those foreign nationals Among the other changes S. 1494 would make to the asylum system, only those foreign nationals
who entered the United States at a POE would be able to apply for asylum. The bil also proposes who entered the United States at a POE would be able to apply for asylum. The bil also proposes
to add new grounds of ineligibility for asylum. It would make ineligible an individual who has to add new grounds of ineligibility for asylum. It would make ineligible an individual who has
been convicted of a felony, has been previously removed from the United States, or is been convicted of a felony, has been previously removed from the United States, or is
inadmissible under an INA ground of inadmissibility (excluding the grounds related to public inadmissible under an INA ground of inadmissibility (excluding the grounds related to public
charge, labor certification, and documentation requirements). S. 1494 would also make ineligible charge, labor certification, and documentation requirements). S. 1494 would also make ineligible
for asylum a national of a country in Central America that has a U.S. refugee application and for asylum a national of a country in Central America that has a U.S. refugee application and
processing center (which the bil would separately establish; seeprocessing center (which the bil would separately establish; see “Refugee Admissions Program”) )
or that is contiguous to a country with such a center (other than Mexico). or that is contiguous to a country with such a center (other than Mexico).
Refugee Admissions Program
Under the INA, the annual number of refugees that can be admitted into the United States, known Under the INA, the annual number of refugees that can be admitted into the United States, known
as the refugee ceiling, and the al ocation of the ceiling are set by the President after consultation as the refugee ceiling, and the al ocation of the ceiling are set by the President after consultation
with Congress at the start of each fiscal year.with Congress at the start of each fiscal year.9093 Subject to these numerical limitations, an Subject to these numerical limitations, an
individual overseas who is a refugee, as defined above, may be admitted to the United States if he individual overseas who is a refugee, as defined above, may be admitted to the United States if he
or she is not firmly resettled in a foreign country, is found to be of special humanitarian concern or she is not firmly resettled in a foreign country, is found to be of special humanitarian concern
to the United States, and is admissible under the applicable grounds of inadmissibility in the to the United States, and is admissible under the applicable grounds of inadmissibility in the
INA. INA.9194
As noted earlier, PRM coordinates and manages the U.S. refugee program. P.L. 116-6 includes a As noted earlier, PRM coordinates and manages the U.S. refugee program. P.L. 116-6 includes a
provision in Division F (Department of State, Foreign Operations, and Related Programs provision in Division F (Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2019, §7073(b)(3)) stating that none of the funds appropriated under that Appropriations Act, 2019, §7073(b)(3)) stating that none of the funds appropriated under that
division or any other act “may be used to downsize, downgrade, consolidate, close, move, or division or any other act “may be used to downsize, downgrade, consolidate, close, move, or
~~relocate the Bureau of Population, Refugees, and Migration, Department of State, or any~~
relocate the Bureau of Population, Refugees, and Migration, Department of State, or any 91 See CRS Report R45539, Immigration: U.S. Asylum Policy. T his report discusses statutory asylum provisions as well as asylum-related policies implemented by the T rump Administration. Also see CRS In Focus IF11363, Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes; and CRS Infographic IG10017, Processing of Adults and Fam ily Units Arriving at the Southern Border Without Valid Docum ents. 92 For background information on asylum, see CRS Report R45539, Immigration: U.S. Asylum Policy. 93 For fiscal years prior to FY2020, Presidents set annual worldwide refugee ceilings and regional allocations (that is, allocations of the annual ceilings among t he regions of the world). For FY2020, the President set a worldwide refugee ceiling (of 18,000). Rather than allocating this ceiling by region, however, he allocated it by “population of special humanitarian concern.” See CRS Insight IN11196, FY2020 Refugee Ceiling and Allocations. For general background, see CRS Report RL31269, Refugee Adm issions and Resettlem ent Policy. 94 See CRS Report RL31269, Refugee Admissions and Resettlement Policy. Congressional Research Service 21 Immigration Legislation and Issues in the 116th Congress activities of such Bureau, to another Federal agency.” P.L. 116-94 (Div. G, §7062(b)(2)) includes activities of such Bureau, to another Federal agency.” P.L. 116-94 (Div. G, §7062(b)(2)) includes
the same language for FY2020. the same language for FY2020.
S. 1494, as reported by the Senate Judiciary Committee, would amend the INA provisions on S. 1494, as reported by the Senate Judiciary Committee, would amend the INA provisions on
refugee admissions temporarily to direct DOS, in consultation with DHS, to establish refugee refugee admissions temporarily to direct DOS, in consultation with DHS, to establish refugee
application and processing centers to accept and process refugee applications.application and processing centers to accept and process refugee applications.9295 It would require It would require
that one center be located in Mexico and that at least three centers be located in Central America. that one center be located in Mexico and that at least three centers be located in Central America.
S. 1494 would further direct DOS and DHS to prescribe fees for applications received and S. 1494 would further direct DOS and DHS to prescribe fees for applications received and
adjudicated at the centers. S. 1494 specifies that these amendments would be in effect for three adjudicated at the centers. S. 1494 specifies that these amendments would be in effect for three
years and 240 days. years and 240 days.
Lautenberg Amendment on Refugees
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg
amendment,” first enacted in 1989 as part of P.L. 101-167, required the Attorney General (now amendment,” first enacted in 1989 as part of P.L. 101-167, required the Attorney General (now
the DHS Secretary) to designate categories of Soviet and Indochinese nationals for whom less the DHS Secretary) to designate categories of Soviet and Indochinese nationals for whom less
evidence would be needed to prove refugee status. In the case of Soviet nationals, the original law evidence would be needed to prove refugee status. In the case of Soviet nationals, the original law

~~90 For fiscal years prior to FY2020, Presidents set annual worldwide refugee ceilings and regional allocations (that is,~~
~~allocations of the annual ceilings among the regions of the world). For FY2020, the President set a worldwide refugee~~
~~ceiling (of 18,000). Rather than allocating this ceiling by region, however, he allocated it by “population of special~~
~~humanitarian concern.” See CRS Insight IN11196, FY2020 Refugee Ceiling and Allocations. For general background,~~
~~see CRS Report RL31269, Refugee Adm issions and Resettlem ent Policy.~~
~~91 See CRS Report RL31269, Refugee Admissions and Resettlement Policy.~~
~~92 For information on how refugee processing is currently conducted, see CRS Report RL31269,~~ ~~Refugee Admissions~~
~~and Resettlem ent Policy~~.
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~~stipulated that certain religious minority groups were to be designated as categories.93~~stipulated that certain religious minority groups were to be designated as categories.96 The The
Lautenberg amendment also provided for the adjustment to LPR status of certain former Soviet Lautenberg amendment also provided for the adjustment to LPR status of certain former Soviet
and Indochinese nationals denied refugee status. and Indochinese nationals denied refugee status.
P.L. 108-199 amended the Lautenberg amendment to add a new provision, known as the “Specter P.L. 108-199 amended the Lautenberg amendment to add a new provision, known as the “Specter
amendment,” that directed the Attorney General to establish categories of Iranian religious amendment,” that directed the Attorney General to establish categories of Iranian religious
minorities who could qualify for refugee status under the Lautenberg amendment’s reduced minorities who could qualify for refugee status under the Lautenberg amendment’s reduced
evidentiary standard. The Lautenberg amendment has been regularly extended over the years, evidentiary standard. The Lautenberg amendment has been regularly extended over the years,
although at times there have been lapses between extensions. The amendment was extended although at times there have been lapses between extensions. The amendment was extended
through September 30, 2019, by P.L. 116-6 (Div. F, §7034(m)(5)), and is currently extended through September 30, 2019, by P.L. 116-6 (Div. F, §7034(m)(5)), and is currently extended
through September 30, 2020, by P.L. 116-94 (Div. G, §7034(l)(5)). through September 30, 2020, by P.L. 116-94 (Div. G, §7034(l)(5)).
U.S. Citizenship and Naturalization
The INA delineates how a person may acquire U.S. citizenship.The INA delineates how a person may acquire U.S. citizenship.9497 Under INA Section 320, a child Under INA Section 320, a child
born outside the United States automatical y acquires U.S. citizenship if he or she (1) has at least born outside the United States automatical y acquires U.S. citizenship if he or she (1) has at least
one parent who was a U.S. citizen at the time of the child’s birth, (2) is under age 18, and (3) is one parent who was a U.S. citizen at the time of the child’s birth, (2) is under age 18, and (3) is
residing in the United States in the citizen parent’s legal and physical custody.residing in the United States in the citizen parent’s legal and physical custody.9598 Children born to Children born to
U.S. military service members and U.S. civil servants who are stationed and living abroad do not U.S. military service members and U.S. civil servants who are stationed and living abroad do not
receive automatic citizenship under the INA because they do not meet the third requirement for receive automatic citizenship under the INA because they do not meet the third requirement for
U.S. residence. The Citizenship for Children of Military Members and Civil Servants Act (P.L. U.S. residence. The Citizenship for Children of Military Members and Civil Servants Act (P.L.
116-133) changes this by providing that a foreign-born child of a U.S. citizen member of the 116-133) changes this by providing that a foreign-born child of a U.S. citizen member of the
Armed Forces or government employee automatical y acquires U.S. citizenship even if the child Armed Forces or government employee automatical y acquires U.S. citizenship even if the child
is not residing in the United States. is not residing in the United States.
~~The INA al ows noncitizens who serve in the U.S. military and meet certain requirements to~~
~~acquire U.S. citizenship through an expedited naturalization process.96 Recent media reports have~~
~~described cases of noncitizen U.S. veterans who served in and were honorably discharged from~~
~~the U.S. military, neglected to apply for citizenship, subsequently were convicted of crimes that~~
~~made them removable, and were then deported to their countries of origin.97 Legislative proposals~~
~~have been introduced regularly in Congress to require the U.S. military to help ensure that~~
~~noncitizen enlistees are both made aware of expedited citizenship and assisted in the application~~
~~process. P.L. 116-92 (§570D) requires each branch of the U.S. military to provide counseling to~~
~~enlisted noncitizen military servicemembers regarding how to apply for U.S. naturalization.~~

93 95 For information on how refugee processing is currently conducted, see CRS Report RL31269, Refugee Admissions and Resettlem ent Policy. 96 P.L. 101-167, as originally enacted, referenced individuals “ who are or were nationals and residents of the Soviet P.L. 101-167, as originally enacted, referenced individuals “ who are or were nationals and residents of the Soviet
Union.” T his language was subsequently amended to read, “ who are or were nationals and residents of an independent Union.” T his language was subsequently amended to read, “ who are or were nationals and residents of an independent
state of the former Soviet Union or of Estonia, Latvia, or Lithuania.” state of the former Soviet Union or of Estonia, Latvia, or Lithuania.”
9497 For background information on how foreign nationals acquire U.S. citizenship, see archived CRS Report R43366, For background information on how foreign nationals acquire U.S. citizenship, see archived CRS Report R43366,
U.S. Naturalization Policy. .
~~95 8 U.S.C. §1431.~~
~~96 Under these provisions, a member of the military can naturalize after one year of military service in peacetime and~~
~~immediately during wartime. INA §328, 8 U.S.C. §1439; INA §329, 8 U.S.C. §1440. See CRS In Focus IF10884,~~
Expedited Citizenship through Military Service.
~~97 See, for example, Maria Ines Zamudio, “Deported U.S. Veterans Feel Abandoned By T he Country T hey Defended,”~~
NPR, WBEZ, June 21, 2019.
~~Congressional Research Service~~
22

~~link to page 13~~ ~~Immigration Legislation and Issues in the 116th Congress~~
98 8 U.S.C. §1431. Congressional Research Service 22 link to page 13 Immigration Legislation and Issues in the 116th Congress The INA al ows noncitizens who serve in the U.S. military and meet certain requirements to acquire U.S. citizenship through an expedited naturalization process.99 Recent media reports have described cases of noncitizen U.S. veterans who served in and were honorably discharged from the U.S. military, neglected to apply for citizenship, subsequently were convicted of crimes that made them removable, and were then deported to their countries of origin.100 Legislative proposals have been introduced regularly in Congress to require the U.S. military to help ensure that noncitizen enlistees are both made aware of expedited citizenship and assisted in the application process. P.L. 116-92 (§570D) requires each branch of the U.S. military to provide counseling to enlisted noncitizen military servicemembers regarding how to apply for U.S. naturalization.
Other Issues and Legislation
Electronic Employment Eligibility Verification
Employment eligibility verification is widely viewed as a key element in a strategy to reduce Employment eligibility verification is widely viewed as a key element in a strategy to reduce
unauthorized immigration.unauthorized immigration.98101 Under the INA, it is unlawful for an employer to knowingly hire, Under the INA, it is unlawful for an employer to knowingly hire,
recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed.
Employers are further required to participate in a paper-based (I-9) employment eligibility Employers are further required to participate in a paper-based (I-9) employment eligibility
verification system in which they examine documents presented by new hires to verify identity verification system in which they examine documents presented by new hires to verify identity
and work eligibility, and complete and retain I-9 verification forms. and work eligibility, and complete and retain I-9 verification forms.99102
While al employers must meet the I-9 requirements, they also may participate in the USCIS- While al employers must meet the I-9 requirements, they also may participate in the USCIS-
administered E-Verify electronic employment eligibility verification system. E-Verify is largely administered E-Verify electronic employment eligibility verification system. E-Verify is largely
voluntary but has some mandatory participants, such as certain federal contractors.voluntary but has some mandatory participants, such as certain federal contractors.~~100~~103 Participants Participants
in E-Verify electronical y verify new hires’ employment authorization through Social Security in E-Verify electronical y verify new hires’ employment authorization through Social Security
Administration and, if necessary, DHS databases. E-Verify is a temporary program. The 116th Administration and, if necessary, DHS databases. E-Verify is a temporary program. The 116th
Congress extended the program through September 30, 2019, in P.L. 116-6 (Div. H, §101), and Congress extended the program through September 30, 2019, in P.L. 116-6 (Div. H, §101), and
through September 30, 2020, in P.L. 116-94 (Div. I, §101). through September 30, 2020, in P.L. 116-94 (Div. I, §101).
Title III of H.R. 5038, as passed by the House, would direct DHS to establish an electronic Title III of H.R. 5038, as passed by the House, would direct DHS to establish an electronic
employment eligibility verification system. The new system would be modeled on—and would employment eligibility verification system. The new system would be modeled on—and would
replace—E-Verify, and would be permanent. Mandatory participants in E-Verify would be replace—E-Verify, and would be permanent. Mandatory participants in E-Verify would be
required to use the new verification system. In addition, participation in the new system would be required to use the new verification system. In addition, participation in the new system would be
mandatory for “a person or entity hiring, recruiting, or referring for a fee an individual for mandatory for “a person or entity hiring, recruiting, or referring for a fee an individual for
agricultural employment in the United States.” The participation requirement for the agricultural agricultural employment in the United States.” The participation requirement for the agricultural
industry with respect to hiring would be phased in by employer size. The effective dates for industry with respect to hiring would be phased in by employer size. The effective dates for
mandatory participation would be tied to the application period for the agricultural worker mandatory participation would be tied to the application period for the agricultural worker
legalization program in Title I of H.R. 5038 (see legalization program in Title I of H.R. 5038 (see “Agricultural Workers”). ”).
99 Under these provisions, a member of the military can naturalize after one year of military service in peacetime and immediately during wartime. INA §328, 8 U.S.C. §1439; INA §329, 8 U.S.C. §1440. See CRS In Focus IF10884, Expedited Citizenship through Military Service. 100 See, for example, Maria Ines Zamudio, “Deported U.S. Veterans Feel Aban doned By T he Country T hey Defended,” NPR, WBEZ, June 21, 2019. 101 For further information about employment eligibility verification and the E-Verify system, see CRS Report R40446, Electronic Em ploym ent Eligibility Verification. 102 INA §274A, 8 U.S.C. §1324a. 103 For further information on the federal contractor requirements, see the U.S. Department of Homeland Security’s E -Verify page on Federal Contractors at https://www.e-verify.gov/employers/federal-contractors. Congressional Research Service 23 Immigration Legislation and Issues in the 116th Congress Waivers for Foreign Medical Graduates
Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in
order to receive graduate medical education and training. Such FMGs must return to their home order to receive graduate medical education and training. Such FMGs must return to their home
countries after completing their education or training for at least two years before they can apply countries after completing their education or training for at least two years before they can apply
for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of this for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of this
foreign residency requirement. States are able to request waivers on behalf of FMGs under a foreign residency requirement. States are able to request waivers on behalf of FMGs under a
temporary program, known as the Conrad State Program or the Conrad 30 Program. Established temporary program, known as the Conrad State Program or the Conrad 30 Program. Established
in 1994 by P.L. 103-416, it initial y applied to aliens who acquired J status before June 1, 1996, in 1994 by P.L. 103-416, it initial y applied to aliens who acquired J status before June 1, 1996,
and has been regularly extended. The 116th Congress extended the program through September and has been regularly extended. The 116th Congress extended the program through September
30, 2019, in P.L. 116-6 (Div. H, §103) and through September 30, 2020, in P.L. 116-94 (Div. I, 30, 2019, in P.L. 116-6 (Div. H, §103) and through September 30, 2020, in P.L. 116-94 (Div. I,
§103). §103).

~~98 For further information about employment eligibility verification and the E-Verify system, see CRS Report R40446,~~
Electronic Em ploym ent Eligibility Verification.
~~99 INA §274A, 8 U.S.C. §1324a.~~
~~100 For further information on the federal contractor requirements, see the U.S. Department of Homeland Security’s E -~~
~~Verify page on Federal Contractors at https://www.e-verify.gov/employers/federal-contractors.~~
~~Congressional Research Service~~
23

~~Immigration Legislation and Issues in the 116th Congress~~

Treaty Traders and Treaty Investors
Treaty traders and investors may enter the United States on E-1 or E-2 nonimmigrant visas, Treaty traders and investors may enter the United States on E-1 or E-2 nonimmigrant visas,
respectively. To qualify for either visa, a foreign national must be a citizen or national of a respectively. To qualify for either visa, a foreign national must be a citizen or national of a
country with which the United States maintains a treaty of commerce and navigation.country with which the United States maintains a treaty of commerce and navigation.~~101~~104 In In
addition, the foreign national must demonstrate that the purpose of coming to the United States is, addition, the foreign national must demonstrate that the purpose of coming to the United States is,
in the case of the E-1 visa, “to carry on substantial trade, including trade in services or in the case of the E-1 visa, “to carry on substantial trade, including trade in services or
technology, principal y between the United States and the treaty country”; or, in the case of the E-technology, principal y between the United States and the treaty country”; or, in the case of the E-
2 visa, “to develop and direct the operations of an enterprise in which the national has invested, or 2 visa, “to develop and direct the operations of an enterprise in which the national has invested, or
is in the process of investing, a substantial amount of capital.”is in the process of investing, a substantial amount of capital.”~~102~~105 H.R. 565, as passed by the H.R. 565, as passed by the
House, would make nationals of Portugal eligible for E-1 and E-2 nonimmigrant visas if the House, would make nationals of Portugal eligible for E-1 and E-2 nonimmigrant visas if the
government of Portugal provides similar nonimmigrant status to nationals of the United States. government of Portugal provides similar nonimmigrant status to nationals of the United States.
Parole
Parole is a means by which an alien may be permitted to physical y enter the United States Parole is a means by which an alien may be permitted to physical y enter the United States
without being deemed to have been “admitted” into the country for immigration purposes. The without being deemed to have been “admitted” into the country for immigration purposes. The
INA authorizes the Attorney General (now the DHS Secretary) to “parole into the United States INA authorizes the Attorney General (now 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 temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien applying for admission into the humanitarian reasons or significant public benefit any alien applying for admission into the
United States.”United States.”~~103~~106 Parole does not constitute formal admission to the United States; an individual Parole does not constitute formal admission to the United States; an individual
granted parole is stil considered to be an applicant for admission.granted parole is stil considered to be an applicant for admission.~~104~~107 Over the years, the former Over the years, the former
Immigration and Naturalization Service (INS) and DHS established special parole programs for Immigration and Naturalization Service (INS) and DHS established special parole programs for
certain populations. certain populations.
S. 1494, as reported by the Senate Judiciary Committee, would place restrictions on the DHS S. 1494, as reported by the Senate Judiciary Committee, would place restrictions on the DHS
Secretary’s parole authority. It would amend the INA parole provisions to delineate the particular Secretary’s parole authority. It would amend the INA parole provisions to delineate the particular
circumstances in which the Secretary could grant humanitarian or significant public interest circumstances in which the Secretary could grant humanitarian or significant public interest
parole. It also would specify that the Secretary could not grant parole “according to eligibility parole. It also would specify that the Secretary could not grant parole “according to eligibility
~~criteria describing an entire class of potential parole recipients,” and that the parole authority~~
~~could not be used “to supplement established immigration categories without an Act of~~
~~Congress.” Separately, a provision in Executive Order 13767 directs the Secretary “to ensure that~~
~~[INA] parole authority … is exercised only on a case-by-case basis in accordance with the plain~~
~~language of the statute.”105~~
~~Executive Action on Immigration~~
~~The No BAN Act (H.R. 2214), as reported by the House Judiciary Committee, would amend an~~
~~INA provision that, in main part, authorizes the President to suspend, or impose restrictions on,~~
~~the entry into the United States of any aliens as immigrants or nonimmigrants whenever the~~

~~101~~ 104 8 C.F.R. §214.2(e)(6). A treaty country includes a foreign state that is accorded treaty visa privileges under Section 8 C.F.R. §214.2(e)(6). A treaty country includes a foreign state that is accorded treaty visa privileges under Section
101(a)(15)(E) of the INA by specific legislation. For the current list of countries that qualify, see U.S. Department of 101(a)(15)(E) of the INA by specific legislation. For the current list of countries that qualify, see U.S. Department of
State, “T reaty Countries,” https://travel.state.gov/content/visas/en/fees/treaty.html. State, “T reaty Countries,” https://travel.state.gov/content/visas/en/fees/treaty.html.
~~102~~105 INA §101(a)(15)(E), 8 U.S.C. §1101(a)(15)(E). INA §101(a)(15)(E), 8 U.S.C. §1101(a)(15)(E).
~~103~~106 INA §212(d)(5), 8 U.S.C. §1182(d)(5). INA §212(d)(5), 8 U.S.C. §1182(d)(5).
~~104~~107 For additional discussion of parole, see CRS Report R45158, For additional discussion of parole, see CRS Report R45158, An Overview of Discretionary Reprieves from
Rem oval: Deferred Action, DACA, TPS, and Others. .
~~105 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 8793,~~
~~January 30, 2017.~~
~~Congressional Research Service~~
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~~Immigration Legislation and Issues in the 116th Congress~~

~~President finds that the entry of such aliens would be detrimental to U.S. interests.106~~Congressional Research Service 24 Immigration Legislation and Issues in the 116th Congress criteria describing an entire class of potential parole recipients,” and that the parole authority could not be used “to supplement established immigration categories without an Act of Congress.” Separately, a provision in Executive Order 13767 directs the Secretary “to ensure that [INA] parole authority … is exercised only on a case-by-case basis in accordance with the plain language of the statute.”108 Executive Action on Immigration The No BAN Act (H.R. 2214), as reported by the House Judiciary Committee, would amend an INA provision that, in main part, authorizes the President to suspend, or impose restrictions on, the entry into the United States of any aliens as immigrants or nonimmigrants whenever the President finds that the entry of such aliens would be detrimental to U.S. interests.109 Under the Under the
revision proposed by H.R. 2214, the President could temporarily suspend, or impose restrictions revision proposed by H.R. 2214, the President could temporarily suspend, or impose restrictions
on, the entry of aliens as immigrants or nonimmigrants on, the entry of aliens as immigrants or nonimmigrants
if the Secretary of State, in consultation with the Secretary of Homeland Security, if the Secretary of State, in consultation with the Secretary of Homeland Security,
determines, based on specific and credible facts, that the entry of any aliens or any class of determines, based on specific and credible facts, that the entry of any aliens or any class of
aliens into the United States would undermine the security or public safety of the United aliens into the United States would undermine the security or public safety of the United
States or the preservation of human rights, democratic processes or institutions, or States or the preservation of human rights, democratic processes or institutions, or
international stability. international stability.
This authority would be subject to statutory limitations, including requirements to narrowly tailor This authority would be subject to statutory limitations, including requirements to narrowly tailor
the suspension or restriction on entry and to specify its duration. In addition, prior to the President the suspension or restriction on entry and to specify its duration. In addition, prior to the President
issuing an entry suspension or restriction, the Secretary of State and the Secretary of Homeland issuing an entry suspension or restriction, the Secretary of State and the Secretary of Homeland
Security would need to consult Congress and provide specific evidence supporting the need for Security would need to consult Congress and provide specific evidence supporting the need for
the suspension or restriction and its proposed duration. The amended provision would further the suspension or restriction and its proposed duration. The amended provision would further
al ow for an individual or entity in the United States who has been harmed by a violation of the al ow for an individual or entity in the United States who has been harmed by a violation of the
provision to seek relief in federal court. Among its other provisions, H.R. 2214 would terminate provision to seek relief in federal court. Among its other provisions, H.R. 2214 would terminate
specified executive orders and presidential proclamations. These include Executive Order 13769, specified executive orders and presidential proclamations. These include Executive Order 13769,
Executive Order 13780, and Presidential Proclamation 9645, known collectively as the “Travel Executive Order 13780, and Presidential Proclamation 9645, known collectively as the “Travel
Ban.” Ban.”~~107~~110
Access to Counsel
Access to counsel is an issue that arises in different contexts in the U.S. immigration system, Access to counsel is an issue that arises in different contexts in the U.S. immigration system,
including in interactions between foreign nationals seeking U.S. entry at POEs and CBP including in interactions between foreign nationals seeking U.S. entry at POEs and CBP
officers.officers.~~108~~111 The Access to Counsel Act of 2020 (H.R. 5581), as reported by the House Judiciary The Access to Counsel Act of 2020 (H.R. 5581), as reported by the House Judiciary
Committee, would amend the INA to ensure that a covered individual seeking entry into the Committee, would amend the INA to ensure that a covered individual seeking entry into the
United States has the opportunity to consult with counsel and an interested party (such as a United States has the opportunity to consult with counsel and an interested party (such as a
relative) during the CBP inspection process. For purposes of H.R. 5581, covered individuals relative) during the CBP inspection process. For purposes of H.R. 5581, covered individuals
include LPRs returning from trips abroad, refugees, and foreign nationals with valid visas seeking include LPRs returning from trips abroad, refugees, and foreign nationals with valid visas seeking
immigrant or nonimmigrant admission. immigrant or nonimmigrant admission.

~~Author Information~~

~~Andorra Bruno, Coordinator~~
~~Jill H. Wilson~~
~~Specialist in Immigration Policy~~
~~Analyst in Immigration Policy~~

~~William A. Kandel~~

~~Analyst in Immigration Policy~~

~~106~~ 108 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 8793, January 30, 2017. 109 INA §212(f), 8 U.S.C. §1182(f). INA §212(f), 8 U.S.C. §1182(f).
~~107~~110 For further discussion, see CRS Legal Sidebar LSB10458, For further discussion, see CRS Legal Sidebar LSB10458, Presidential Actions to Exclude Aliens Under INA §
212(f). .
~~108~~111 For a comparison of procedural protections (including access to counsel) available to aliens arriving at the U For a comparison of procedural protections (including access to counsel) available to aliens arriving at the U .S. .S.
border and within the United States, see CRS Legal Sidebar LSB10150, border and within the United States, see CRS Legal Sidebar LSB10150, Im m igration Laws Regulating the Adm ission
and Exclusion of Aliens at the Border. .
Congressional Research Service Congressional Research Service
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Immigration Legislation and Issues in the 116th Congress

Author Information Andorra Bruno, Coordinator Jill H. Wilson Specialist in Immigration Policy Analyst in Immigration Policy William A. Kandel Analyst in Immigration Policy

Disclaimer
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