Order Code IB10103
Issue Brief for Congress
Received through the CRS Web
Immigration Legislation and
Issues in the 107th Congress
Updated May 28, 2002
Andorra Bruno, Coordinator, and
Ruth Ellen Wasem, Lisa Seghetti, Alison Siskin, and Karma Ester
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
INS Reorganization
Noncitizen Eligibility for Public Benefits
Food Stamps
Temporary Assistance for Needy Families
Medicaid/SCHIP
Legal Permanent Residence for Unauthorized Aliens
Foreign Agricultural Worker Adjustment
Adjustment of Alien Students
Section 245(i)
Temporary Guest Worker Programs
Possible U.S.-Mexico Guest Worker Program
H-2A Agricultural Workers
H-1C Nurses
Border Security
Admissions Policy
Monitoring of Foreign Students
Other Legislation and Issues
Refugees
Resettlement Funding
Legal Immigration and Sponsorship
Child-Related Legislation
Other Legislation Receiving Action
S Visa for Criminal and Terrorist Informants
Work Authorization for Certain Nonimmigrant Spouses
Employment Eligibility Verification Pilot Programs
Driver’s Licenses Issued to Nonimmigrants
Other Pending Bills
LEGISLATION
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Immigration Legislation and Issues in the 107th Congress
SUMMARY
Top immigration issues before the 107th
The 107th Congress also has considered
Congress include the reorganization of the
legislation (H.R. 1885) to enable certain
Immigration and Naturalization Service (INS)
unauthorized aliens in the United States to
and the eligibility of noncitizens for public
adjust to LPR status. This legislation would
assistance. Also pending are various mea-
extend a provision of the Immigration and
sures to enable unauthorized aliens to become
Nationality Act — §245(i) — that currently
legal permanent residents (LPRs) and to
covers illegal aliens whose sponsors filed
reform temporary guest worker programs.
petitions or applications on their behalf by
April 30, 2001. H.R. 1885 has been passed in
The House has passed an INS reorgani-
different forms by the House and Senate.
zation bill (H.R. 3231) that would abolish INS
Other pending bills would establish mecha-
and create two separate bureaus within DOJ to
nisms to allow particular groups of unautho-
carry out INS’s current immigration services
rized aliens — namely, agricultural workers
and enforcement functions. The Senate Gov-
and students — to become LPRs.
ernmental Affairs Committee has marked up
a bill (S. 2452) that would transfer INS’s
Temporary guest worker programs are
border patrol authorities and functions, along
also the subject of pending bills. Among
with other agencies’ border functions, to a
these bills are measures that would make
new agency.
significant changes to the H-2A program for
foreign agricultural workers and the H-1C
Congress is addressing noncitizen eligi-
program for foreign nurses.
bility for public assistance in the context of
bills to reauthorize federal public benefit
Congress has enacted various pieces of
programs. The recently enacted “farm billâ€
immigration-related legislation to date. In
(P.L. 107-171) expands eligibility for food
addition to the farm bill mentioned above, the
stamps for certain classes of LPRs. House-
most significant of these measures address
passed legislation to reauthorize Temporary
immigration-related counterterrorism and
Assistance for Needy Families (H.R. 4737),
security issues. Both the USA PATRIOT Act
however, would not change the eligibility
(P.L. 107-56) and the Enhanced Border Secu-
rules for noncitizens. The reauthorization of
rity and Visa Entry Reform Act (P.L. 107-
the Medicaid program is the subject of sepa-
173) contain provisions on border security,
rate legislation.
admissions policy, and foreign students.
Congressional Research Service ˜ The Library of Congress
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MOST RECENT DEVELOPMENTS
President Bush recently signed two major immigration-related bills into law. On May
13, 2002, he signed the Farm Security and Rural Investment Act of 2002 (P.L. 107-171),
which contains provisions expanding noncitizen eligibility for food stamps. On May 14, he
signed the Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173), a
broad measure that addresses various security-related border and immigration issues.
BACKGROUND AND ANALYSIS
Introduction
The basic U.S. law regulating immigration, the Immigration and Nationality Act (INA),
was enacted in 1952 and has been amended since then. The last major overhaul of the INA
occurred in 1996 with the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA; Division C of P.L. 104-208). The Immigration and
Naturalization Service (INS) of the Department of Justice (DOJ) administers and enforces
the INA. (For a basic introduction to immigration, see CRS Report RS20916, Immigration
and Naturalization Fundamentals.)
In the aftermath of the September 11, 2001 terrorist attacks, congressional interest in
immigration was focused primarily on security- and counterterrorism-related issues, such
as border security, admissions policy, and the tracking of foreign nationals in the United
States. Now that the 107th Congress has passed major legislation in these areas, other
immigration issues that were on the agenda prior to September 11 are receiving considerable
congressional attention. Foremost among them are the reorganization of INS and noncitizen
eligibility for federal benefits, which are discussed in the initial sections of this report.
These discussions are followed by coverage of various proposed mechanisms for
unauthorized aliens to obtain legal permanent resident (LPR) status and other immigration
issues of significant congressional interest. (The “Legislation†section at the end of the
report lists enacted legislation and selected bills receiving action.)
INS Reorganization
INS is the primary agency charged with enforcing U.S. immigration law. Under its
current organizational structure, INS has struggled with carrying out its many tasks. The
underlying theme of most of the criticism hinges on what many believe are overlapping and
unclear chains of command with respect to INS’s two core functions: facilitating legal
immigration (service) and stemming illegal immigration (enforcement). There appears to
be a consensus among the Bush Administration, Congress, and commentators that the
immigration system, primarily INS, is in need of restructuring. The Administration supports
separating service from enforcement and has begun implementing its reorganization plan.
While there is no statutory requirement that the Administration gain congressional approval
for any agency reorganization, Congress could choose to mandate legislatively that INS be
dismantled or reorganized differently.
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Several pieces of legislation have been introduced that would abolish INS and do one
of the following: (1) create separate bureaus within DOJ that would carry out INS’s current
immigration service and enforcement functions and would report to a new Associate
Attorney General, and a separate Office of Immigration Statistics within DOJ’s Bureau of
Justice Statistics (H.R. 3231 and H.R. 1562); (2) create a new integrated immigration
agency with service and enforcement bureaus within DOJ, as well as a separate Office of the
Ombudsman and Office of Children’s Services within DOJ and an Office of Immigration
Statistics within the Bureau of Justice Statistics (S. 2444); or (3) disperse INS’s service
functions among a number of different agencies and create a new enforcement agency within
DOJ (H.R. 4108).
On April 25, 2002, the House passed, as amended, the “Barbara Jordan Immigration
Reform and Accountability Act of 2002†(H.R. 3231). The act would abolish INS and create
an Office of the Associate Attorney General for Immigration Affairs within DOJ. Under the
newly created office, two new bureaus would be established, the Bureau of Citizenship and
Immigration Services and the Bureau of Immigration Enforcement. Several new offices and
positions would be created within the Office of the Associate Attorney General and within
each bureau. No actions other than committee referrals have occurred on any of the other
bills.
Legislation has also been introduced (H.R. 1158, H.R. 2020, H.R. 3600, H.R. 4660,
S. 1534, and S. 2452) that would transfer the INS border patrol authorities and functions,
along with other agencies’ border functions, to a newly created agency. H.R. 1158 was the
subject of a joint hearing by subcommittees of the House Government Reform Committee
and the House Transportation and Infrastructure Committee in April 2001. S. 2452 was
marked up by the Senate Governmental Affairs Committee on May 22, 2002. (See CRS
Report RL31388, Immigration and Naturalization Service: Restructuring Proposals in the
107th Congress.)
Noncitizen Eligibility for Public Benefits
Prior to 1996, LPRs were eligible for federal public assistance under terms comparable
to citizens, and states were not permitted to restrict access to federal programs on the basis
of immigration status. The 1996 welfare reform law (P.L. 104-193) instituted a 5-year bar
for most newly entering LPRs and generally allowed the states to bar noncitizens from
Medicaid and Temporary Assistance for Needy Families (TANF), with exceptions for LPRs
with 10 years of work history and for certain humanitarian cases, such as refugees and
asylees. As the result of perceived abuses and budgetary concerns, it also barred most legal
aliens (again excepting LPRs with 10 years of work history and certain humanitarian cases)
from Supplemental Security Income (SSI) and food stamps.
As the 107th Congress considers legislation to reauthorize federal public benefit
programs, the crux of the noncitizen eligibility issue is what classes of LPRs should be
eligible for assistance and what types of assistance should be available to them. Several
significant legislative proposals expanding noncitizen eligibility for TANF, SSI, and
Medicaid/State Children’s Health Insurance Program (SCHIP) are before Congress. This
subject also has been a key issue in the comprehensive legislation reauthorizing Agriculture
Department programs (H.R. 2646, known as the “farm billâ€), because the bill includes
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changes to the Food Stamp program. (See CRS Electronic Briefing Book, Welfare Reform,
page on “Noncitizens,†available at [http://www.congress.gov/brbk/html/ebwlf60.html]; and
CRS Report RL31114, Noncitizen Eligibility for Major Federal Public Assistance
Programs: Policies and Legislation.)
Food Stamps
On April 26, 2002, House-Senate farm bill conferees announced an agreement on Food
Stamp amendments. On May 1, the House-Senate conference report on H.R. 2646 was filed.
The House and Senate subsequently agreed to the conference report, and President Bush
signed H.R. 2646, the “Farm Security and Rural Investment Act,†into law (P.L. 107-171)
on May 13, 2002. P.L. 107-171 contains substantial changes to food stamp eligibility rules
for noncitizens, expanding food stamp eligibility to include: all LPR children, regardless of
date of entry (it also ends requirements to deem sponsors’ income and resources to these
children); LPRs receiving government disability payments, as long as they pass any
noncitizen eligibility test established by the disability program (e.g., SSI recipients would
have to meet SSI noncitizen requirements in order to get food stamps); and all individuals
who have resided in the United States for 5 or more years as “qualified aliens†— i.e., LPRs,
refugees/asylees, and other non-temporary legal residents (such as Cuban/Haitian entrants).
Temporary Assistance for Needy Families
Although the Republican bills reauthorizing TANF — notably H.R. 4737 (a modified
version of the Bush Administration proposal) — do not propose changes in the noncitizen
eligibility rules for the program, several bills sponsored by Democrats would expand
coverage for certain noncitizens. Title VI of the “Next Step in Reforming Welfare Actâ€
(H.R. 3625), an omnibus reauthorization measure, would eliminate the 5-year federal
eligibility bar applied to LPRs applying for TANF and ease requirements that sponsors’
financial resources be deemed to noncitizens when their eligibility is determined. This same
measure also would end current bars against SSI eligibility for LPRs (and similarly ease
sponsor deeming requirements for them). H.R. 3113, another comprehensive TANF
reauthorization bill, would remove the deeming requirements and bars for TANF.
On May 14, 2002, the House Ways and Means Committee reported H.R. 4090,
rejecting proposals to expand noncitizen eligibility for TANF and change sponsor
deeming/repayment requirements. Provisions of the reported version of H.R. 4090 were
subsequently incorporated into a larger bill, H.R. 4737, which was passed by the House on
May 16.
Medicaid/SCHIP
Several bills have been introduced (H.R. 1143, H.R. 1528, S. 582, S. 940/H.R. 1990,
and S. 2052) that address Medicaid/SCHIP. These bills generally would give states the
option of extending Medicaid and SCHIP coverage to lower-income LPRs (to the extent that
they are not already covered) and LPR pregnant and postpartum women and their children.
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Higher Education Benefits
Section 505 of IIRIRA made unauthorized aliens ineligible for postsecondary education
benefits based on state residence unless equal benefits were made available to all U.S.
citizens regardless of state of residence. Bills before the 107th Congress (H.R. 1563, H.R.
1582, H.R. 1918, S. 1265, and S. 1291) would repeal IIRIRA §505 and, as discussed below,
would provide for the cancellation of removal and adjustment of status of certain alien
students. Some of the bills also would make alien students who apply for cancellation of
removal under their terms eligible for federal postsecondary education benefits, such as
student financial aid. (See CRS Report RL31365, Unauthorized Alien Students: Issues and
Legislation.)
Legal Permanent Residence
for Unauthorized Aliens
According to recent estimates, the unauthorized (illegally present) alien population in
the United States in 2000 totaled about 8.5 million. About half of these illegal residents
were believed to be Mexican nationals. Media reports last summer indicated that the Bush
Administration, which had begun migration talks with Mexico in early 2001, was
considering a legalization program for some unauthorized Mexicans in the United States
who could meet unspecified work and other requirements. Programs of this type, which
require prospective legalization beneficiaries to “earn†legal status through work and other
contributions, have been termed “earned adjustment†programs. Adjustment refers to the
process under immigration law by which an individual present in the United States is granted
LPR status. The Administration has not issued a legalization proposal. If it opts to do so in
the future, it may link such an adjustment program to a temporary guest worker program.
Some observers believe that the adjustment provisions in pending foreign agricultural worker
bills (discussed in the next section) offer the Administration a prototype for a broader
adjustment program. House and Senate Democrats expressed their support for an earned
adjustment program in an August 2001 letter to President Bush and Mexican President Fox
outlining their immigration priorities. They would make the program available to aliens
from all countries who are “long-time, hard-working residents of good moral character.â€
Foreign Agricultural Worker Adjustment
Some pending bills to reform the H-2A temporary agricultural worker program (see
below) would enable certain unauthorized agricultural workers in the United States to
become LPRs through a two-stage process. Under these bills (S. 1161 and S. 1313/H.R.
2736), aliens who had worked in seasonal agriculture for a threshold number of days during
a specified time period would be eligible for temporary resident status. After meeting
additional work requirements in subsequent years, they could apply to adjust to LPR status
outside the existing numerical limits. Although the general adjustment framework in the
three bills is the same, S. 1161 contains more stringent work requirements for temporary and
permanent status than S. 1313/H.R. 2736. Also, S. 1313 and H.R. 2736 provide for the
adjustment to LPR status of the spouses and minor children of the temporary residents. (See
CRS Report RL30852, Immigration of Agricultural Guest Workers: Policy, Trends, and
Legislative Issues.)
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Adjustment of Alien Students
Multiple bills before Congress (H.R. 1563, H.R. 1582, H.R. 1918, S. 1265, and S. 1291)
would enable certain unauthorized alien students in the United States to become legal
permanent residents. The eligibility requirements in the bills differ, but in most cases would
require the alien to meet specified age requirements, to have lived in the United States for
at least 5 years, and to be in school. (Provisions of the bills related to eligibility for higher
education benefits are discussed separately above.) (See CRS Report RL31365,
Unauthorized Alien Students: Issues and Legislation.)
Section 245(i)
In 1994, Congress amended §245 of the INA with a new, temporary Subsection (i) to
allow illegal aliens who were eligible for an immigrant visa based on close family ties or
work skills to adjust to LPR status in the United States, provided they paid an additional fee.
Previously, they were required to return to their country of origin to obtain a visa. Section
§245(i) has been extended several times since enactment, most recently in December 2000.
The current provision applies only to unauthorized aliens whose sponsoring family members
or employers filed visa petitions or labor certification applications on their behalf by April
30, 2001.
Multiple bills have been introduced in the 107th Congress to extend the filing deadline.
Among them is H.R. 1885, which passed the Senate in amended form in September 2001.
On March 12, 2002, the House passed H.Res. 365, in which it concurred in the Senate
amendment to H.R. 1885 with additional amendments. In H.Res. 365, the House amended
the Senate-passed §245(i) extension language; it also added to H.R. 1885 border security
legislation that it had previously passed. The §245(i) provisions passed by the Senate and
by the House in H.Res. 365 are similar. The Senate version would extend the filing deadline
until the earlier of April 30, 2002, or the date that is 120 days after the issuance of final
regulations. The House version would change “April 30, 2002†to “November 30, 2002.â€
In addition, both versions would require beneficiaries of petitions filed after April 30, 2001,
to demonstrate that the underlying family relationship existed before August 15, 2001, or
that the labor certification application was filed before August 15, 2001. Another §245(i)
extension bill (S. 2493), introduced on May 9, 2002, would extend the filing deadline until
April 30, 2003. It would not establish any earlier deadlines for the existence of the
underlying family relationship or for the filing of the labor certification application. S. 2493
has been referred to the Senate Judiciary Committee. (See CRS Report RL31373,
Immigration: Adjustment to Permanent Resident Status Under Section 245(i).)
Temporary Guest Worker Programs
The major nonimmigrant category for temporary alien workers in U.S. immigration law
is the “H†visa, which includes several programs. Unskilled workers may be admitted into
the country through the H-2A program for agricultural workers or the H-2B program for
nonagricultural workers. Skilled workers may be admitted through the H-1B program for
specialty workers or the H-1C program for nurses.
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Possible U.S.-Mexico Guest Worker Program
The United States and Mexico reportedly have been exploring a new temporary guest
worker program. These discussions lost momentum after September 11, but have continued.
No details about the type of program under consideration have yet been made public.
Senator Phil Gramm has outlined a preliminary proposal for a U.S.-Mexico guest worker
program. The program would be open to workers in agriculture, service industries, and other
sectors of the economy. Unauthorized aliens in the United States would be able to
participate in the program, but participation would not lead to LPR status. (See
[http://www.senate.gov/~gramm/press/guestprogram.html]).
H-2A Agricultural Workers
The H-2A program provides for the temporary admission of foreign agricultural
workers into the United States to perform temporary or seasonal work. The only legal means
of importing temporary agricultural labor, the program has long been criticized by both
agricultural employers and farm labor advocates. The employers argue that the program is
insufficiently flexible and entails burdensome regulations. Farm labor advocates maintain
that the program does not provide adequate protections for U.S. workers or H-2A workers.
Pending bills propose significant changes to the H-2A labor certification process and
other aspects of the existing program. Currently, an employer wanting to import H-2A
workers must first apply to the Labor Department for certification that U.S. workers are not
available and that hiring foreign workers will not adversely affect the wages and working
conditions of similarly employed U.S. workers. S. 1161 and S. 1313/H.R. 2736 would
replace this labor certification process with a labor attestation process, which would be
greatly streamlined for jobs covered by collective bargaining agreements. S. 1161 also
would change existing wage requirements. S. 1313/H.R. 2736 would amend the Migrant and
Seasonal Agricultural Worker Protection Act to include H-2A workers and to give all
agricultural workers the right to collective bargaining. In addition, as discussed above, S.
1161 and S. 1313/H.R. 2736 contain provisions to enable foreign agricultural workers in the
United States to become legal permanent residents. (See CRS Report RL30852,
Immigration of Agricultural Guest Workers: Policy, Trends, and Legislative Issues.)
H-1C Nurses
The H-1C category was established by a 1999 law (P.L. 106-95) as a short-term
solution for nursing shortages in a limited number of medically underserved areas. P.L. 106-
95 allowed for the issuance of 500 nonimmigrant visas to nurses each year for 4 years, with
the proviso that the number of visas issued annually for employment in smaller states could
not exceed 25 and the number issued for employment in larger states could not exceed 50.
The law limited an H-1C nurse’s stay to 3 years.
Pending bills propose to reform the H-1C program in response to concerns that it has
not provided adequate relief from nursing shortages. H.R. 2809 would amend the H-1C
admission requirements to increase the total number of visas available annually to 1,000 and
to increase the visa limit for larger states to 150. H.R. 2705 and S. 1259 would make more
extensive changes to the H-1C program. H.R. 2705 would increase the number of visas
available annually to 195,000. S. 1259 would not place any limit on the number of visas
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available. Both bills would eliminate the state caps, extend the maximum stay to 6 years,
and make the program permanent. Among other significant changes, both bills would
eliminate the requirement that the employer facility be located in a medically underserved
area.
Border Security
Providing adequate border security has long been a challenge for policy makers, since
doing so must be balanced against other interests, such as facilitating legitimate cross-border
travel and commerce and protecting civil liberties. Congress and the Bush Administration
are reevaluating the level of border security maintained by the United States in light of the
recent attacks on the World Trade Center and the Pentagon.
The principal federal agencies responsible for providing border security through the
administration and enforcement of immigration law are INS, the Department of State’s
Bureau of Consular Affairs, and the Department of the Treasury’s U.S. Customs Service.
At the State Department’s consular posts overseas, consular officers adjudicate visa
applications for foreign nationals wishing to come to the United States. At international
ports of entry, travelers are screened for admission into the United States by INS and
Customs inspectors. These agencies maintain “lookout†systems for the purpose of
excluding undesirable persons.
Historically, the U.S.-Mexico border has received more resources than the U.S.-Canada
border. The U.S.-Mexico border has a long-standing history of illegal immigrants
attempting to gain entry into the United States as well as of smuggling drugs and human
beings. By one account, the U.S.-Mexico border and its coastal areas account for 80% of
all illegal traffic into the United States. The larger of the two borders by some 2,000 miles,
the U.S.-Canada border, however, has recently begun to receive attention because of the
increase in illegal activities (e.g., smuggling) occurring there. Moreover, in light of the
events of September 11, 2001, and concerns about possible terrorist operatives in Canada,
the 107th Congress has directed its attention to the U.S.-Canada border. The USA PATRIOT
Act (P.L. 107-56) was signed into law on October 26, 2001. Among its provisions to
enhance border security, the Act authorizes the Attorney General to triple the number of INS
border patrol personnel and INS inspectors at the northern border, and authorizes $50 million
for INS to make technological improvements and to acquire additional equipment for the
northern border.
There are several other legislative proposals before the 107th Congress that include
immigration-related border security provisions (H.R. 3205/S. 1618, H.R. 3129, and H.R.
3525/S. 1749), but only one bill, the Enhanced Border Security and Visa Entry Reform Act
(H.R. 3525), has received action in both houses. The House passed the bill twice, on
December 19, 2001, and March 12, 2002. The Senate amended and passed the bill on April
18, 2002. The House agreed to the Senate amendments on May 8, 2002. President Bush
signed H.R. 3525 into law on May 14, 2002 (P.L. 107-173).
P.L. 107-173 increases the number of INS inspectors and support staff and the number
of INS investigators and support staff by 200 per group for each fiscal year from FY2003
through FY2006. It authorizes appropriations for personnel training, for increased resources
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for INS and Consular Affairs, and for technology and infrastructure improvements. It also
addresses the need for increased interagency data sharing pertaining to the admissibility and
removability of aliens through the development of an “interoperable electronic data system.â€
Other major provisions of P.L. 107-173 aim to increase entry/exit control mechanisms
at international ports of entry and make travel documents more difficult to alter or
counterfeit. IIRIRA included such provisions, but they were later amended. Section 110 of
IIRIRA required the development of an automated system to record the entry and exit of
every alien arriving and departing from the United States by September 30, 1998. This
deadline was extended to March 30, 2001, in P.L. 105-277. P.L. 105-277 further amended
IIRIRA §110 by prohibiting significant disruption of trade, tourism, or other legitimate
cross-border traffic once the entry/exit system is in place. An additional amendment to §110
(in P.L. 106-215) delayed immediate implementation of an automated entry/exit system at
all ports of entry. P.L. 107-173 requires: implementation of an integrated entry and exit
database; machine-readable, tamper-resistant travel documents that use biometric identifiers,
such as fingerprints; biometric data readers and scanners at all ports of entry; and greater
tracking of stolen passports. H.R. 3525 also extends until September 30, 2002, the deadline
for border crossing identification cards to contain a biometric identifier that matches the
biometric characteristic of the card holder. (See CRS Electronic Briefing Book, Terrorism,
page on “Border Security Issues and Options,†available at [http://www.congress.
gov/brbk/html/ebter124.html]; and CRS Report RL31019, Terrorism: Automated Lookout
Systems and Border Security Options and Issues. For information on counterterrorism and
immigration law, see CRS Electronic Briefing Book, Terrorism, page on “Immigration Law:
Legal Frameworks,†available at [http://www.congress.gov/brbk/html/ebter133.html].)
Admissions Policy
The INA spells out a strict set of admissions criteria and exclusion (inadmissibility)
rules for all foreign nationals, whether coming permanently as immigrants (i.e., LPRs) or
temporarily as nonimmigrants. Aliens are inadmissible to the United States on the following
bases: security and terrorist concerns; health-related grounds; criminal history; public charge
(e.g., indigence); seeking to work without proper labor certification; illegal entry and
immigration law violations; lack of proper documents; ineligibility for citizenship; and
previous removal. With the notable exception of foreign visitors entering through the Visa
Waiver Program (discussed below), immigrants and nonimmigrants must obtain visas from
Department of State (DOS) consular officers abroad in order to legally enter the United
States. Aliens applying for visas must satisfy the consular officers that they are not
ineligible for visas under the above grounds of inadmissibility. Similarly, aliens must satisfy
INS inspectors upon entry to the United States that they are not ineligible for admission
under any of these grounds.
The PATRIOT Act amends the INA’s inadmissibility provisions to broaden somewhat
the terrorism grounds for excluding aliens. The INA already barred the admission of any
alien who has engaged in or incited terrorist activity, is reasonably believed to be carrying
out a terrorist activity, or is a representative or member of a designated foreign terrorist
organization. To this list of inadmissible aliens, the PATRIOT Act adds representatives of
groups that endorse terrorism, prominent individuals who endorse terrorism, and spouses and
children of aliens who are deportable on terrorism grounds on the basis of activities
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occurring within the previous 5 years. S. 864, which was reported by the Senate Judiciary
Committee on April 25, 2002, would further broaden the security and terrorism grounds of
inadmissibility to exclude aliens who have participated in the commission of acts of torture
or extrajudicial killings abroad. S. 864 also would make aliens in the United States
removable on these same grounds.
Other immigration provisions of the PATRIOT Act seek to improve the visa issuance
process by providing access to relevant electronic information. These provisions authorize
the Attorney General to share data from domestic criminal record databases with the
Secretary of State for the purpose of adjudicating visa applications. Title III of P.L. 107-173
likewise aims to increase access to electronic information in the context of visa issuances,
while also requiring additional training for consular officers who issue visas. (See CRS
Report RL31381, U.S. Policy on Temporary Admissions.)
Visa Waiver Program (VWP)
The VWP allows nationals from certain countries to enter the United States for 90 days
as temporary visitors for business or pleasure without first obtaining a visa from a U.S.
consulate abroad. By eliminating the visa requirement, this program facilitates international
travel and commerce and eases consular office workloads abroad, but it also bypasses the
first step by which foreign visitors are screened for admissibility when seeking to enter the
United States. The Visa Waiver Pilot Program was established as a temporary program by
the Immigration Reform and Control Act of 1986 (P.L. 99-603), and was made permanent
on October 30, 2000, through the enactment of the Visa Waiver Permanent Program Act
(P.L. 106-396). The program includes 28 countries. Due to the recent economic collapse
in Argentina and the increase in the number of Argentine nationals attempting to use the
VWP to enter the United States and remain illegally past the 90-day period of admission,
that country was removed from the VWP in February 2002. Additionally, the PATRIOT Act
directs the Secretary of State each year until 2007 to ascertain that VWP countries have
established programs to develop tamper-resistant passports.
To reduce the likelihood that terrorists will be able to enter the United States under the
VWP, P.L. 107-173 places new requirements on the program. It requires that all VWP
countries implement systems for the timely reporting of stolen passports, especially stolen
blank passports, that all aliens who enter under the VWP are checked against a lookout
system prior to admission to the United States, and that the Attorney General review the
countries in the VWP every 2 years. Several other bills pending in the 107th Congress would
further tighten VWP-related requirements. (See CRS Report RS21205, Immigration: Visa
Waiver Program.)
Monitoring of Foreign Students
The September 11, 2001 terrorist attacks by foreign nationals — reportedly including
several terrorists on student visas — have prompted a series of questions about foreign
students in the United States and the extent to which the U.S. government monitors their
admission and presence in this country. The arrival of letters on March 11, 2002 in which
the INS notified a Florida flight school that two of the September 11 terrorists had been
approved for foreign student visas further heightened concerns.
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The three visa categories used by foreign students are: F visas for academic study, M
visas for vocational study, and J visas for cultural exchange. The number of student visas
issued has more than doubled over the past 2 decades. In FY1979, the total number of
foreign student and cultural exchange visas issued by DOS consular officers was 224,030
and comprised 4% of all nonimmigrant visas issued. In FY1999, DOS issued 537,755 visas
to F, J, and M nonimmigrants, making up 9% of all nonimmigrant visas issued.
In 1996, Congress enacted a provision that established a foreign student monitoring
system and required educational institutions to participate as a condition of continued
approval to enroll foreign students. The PATRIOT Act includes provisions to expand the
foreign student tracking system and authorizes appropriations for the foreign student
monitoring system, which had been funded through $95 fees paid by the foreign students.
P.L. 107-173 has provisions intended to close perceived loopholes in the admission of
foreign students. Specifically, Title V establishes electronic means to monitor and verify:
documentation of acceptance of a student by an approved school or designated exchange
program; transmittal of documentation to DOS; issuance of a nonimmigrant visa to the
student or exchange visitor; admission of the student or exchange visitor to the United
States; notice to the school or exchange program that the nonimmigrant has been admitted
to the United States; registration and enrollment of the nonimmigrant in the school or
exchange program; and any other relevant act by the nonimmigrant, including changing
schools or programs. The law also creates (within 120 days of enactment) a transitional
program (until the monitoring system is fully implemented) that would restrict issuance of
an F, J, or M visa unless DOS has received electronic evidence from the approved institution
that the alien is accepted and the consular officer has adequately reviewed the applicant’s
record. (See CRS Report RL31146, Foreign Students in the United States: Policies and
Legislation.)
Other Legislation and Issues
Refugees
Typically, the annual number of refugee admissions and their allocation among refugee
groups are determined at the start of each fiscal year by the President after consultation with
Congress. Due to the events of September 11, 2001, however, President Bush did not sign
the Presidential Determination setting the FY2002 refugee numbers until November 21,
2001. Presidential Determination No. 02-04 authorizes a FY2002 refugee ceiling of 70,000,
a decrease from the FY2001 ceiling of 80,000. Some Members of Congress and others have
expressed concern that the United States may fall short of the FY2002 ceiling. To
investigate that issue and others related to refugee admissions, the Senate Immigration
Subcommittee held an oversight hearing in February 2002.
P.L. 107-116, the FY2002 Labor, Health and Human Services, and Education
Appropriations Act, extends the “Lautenberg amendment†through FY2002. That provision
requires the Attorney General to designate categories of former Soviet and Indochinese
nationals for whom less evidence is needed to prove refugee status, and provides adjustment
to LPR status for certain Soviet and Indochinese nationals denied refugee status.
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The resettlement of Vietnamese refugees in the United States is the subject of pending
bills. A provision commonly referred to as the “McCain amendment,†which expired at the
end of FY2001, made the adult children of certain Vietnamese refugees eligible for U.S.
refugee resettlement. H.R. 1840 would re-enact the McCain amendment in revised form.
Among the changes it proposes, the bill would enable adult children previously denied
resettlement to have their cases reconsidered. H.R. 1840 was passed by the House in
October 2001 and by the Senate in May 2002. H.R. 2833, which was passed by the House
in September 2001, would further expand eligibility for refugee resettlement to Vietnamese
nationals who were eligible for any U.S. refugee program but who were deemed ineligible
due to administrative error or who were unable to meet application deadlines.
Resettlement Funding. P.L. 106-104 reauthorized HHS’s Office of Refugee
Resettlement program through FY2002. P.L. 107-116 provides $460.2 million for this
program. (See CRS Report RL31269, Refugee Admissions and Resettlement Policy.)
Legal Immigration and Sponsorship
Subtitle C of the PATRIOT Act contains provisions that preserve the immigration
benefits of the noncitizen victims of September 11 and their families. Among these
provisions are those that ensure that aliens whose pending family-based or employment-
based immigrant petitions were revoked, voided, or nullified due to the terrorist attacks (e.g.,
the family member petitioning for them died) continue to have valid petitions, and that waive
the public charge ground of inadmissibility for them.
More broadly, the Family Sponsor Immigration Act of 2001 (P.L. 107-150) provides
that in cases where a citizen or LPR has petitioned for permanent resident status for an alien
resident and the petitioner has died before the alien has been granted this status, and where
the Attorney General determines for humanitarian reasons that revocation of the petition
would be inappropriate, a close family member other than the original petitioner can sign the
necessary affidavit of support. (See CRS Report RL31114, Noncitizen Eligibility for Major
Federal Public Assistance Programs: Policies and Legislation.)
Child-Related Legislation
H.R. 1209, which was passed by the House on June 6, 2001, would amend the INA to
set new rules for determining whether an alien is a child for purposes of classification as an
immediate relative. (Under the INA, a “child†is an unmarried person under age 21.) On
May 16, 2002, the Senate Judiciary Committee reported both H.R. 1209 and a related
broader Senate bill (S. 672). The committee amended both bills to make them identical. As
reported, the bills would address the issue of the children of citizens “aging out†of the
definition of “child†while their classification petitions are pending. The measures likewise
would address the aging out issue with respect to the children of LPRs, asylees, and
refugees.
Other Legislation Receiving Action
S Visa for Criminal and Terrorist Informants. P.L. 107-45 amends the INA to
make permanent §101(a)(15)(S), the provision that allows aliens with critical information
on criminal or terrorist organizations to come into the United States in order to provide that
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information to law enforcement officials. Under this law, aliens who provide critical
information may adjust to LPR status. The numerical limits on this category are 200 per
year for criminal informants and 50 per year for terrorist informants. (See CRS Report
RS21043, Immigration: S Visas for Criminal and Terrorist Informants.)
Work Authorization for Certain Nonimmigrant Spouses. P.L. 107-124
amends the INA to provide work authorization for the nonimmigrant spouses of treaty
traders or treaty investors on E visas. P.L. 107-125 similarly amends the INA to provide
work authorization for the nonimmigrant spouses of intracompany transferees on L visas.
P.L. 107-125 further amends the INA to reduce from 1 year to 6 months the period of time
that certain intracompany transferees have to be continuously employed overseas by a
petitioning employer before applying for admission to the United States.
Employment Eligibility Verification Pilot Programs. P.L. 107-128 amends a
section of IIRIRA that directed the Attorney General to conduct three pilot programs for
employment eligibility confirmation (i.e., to confirm that new hires are legally eligible to
work). Each of the programs was to be in effect for 4 years. The first program to be
implemented, known as the “basic pilot program,†expired in November 2001. P.L. 107-128
extends the life of each program from 4 to 6 years.
Driver’s Licenses Issued to Nonimmigrants. H.R. 4043 would prohibit federal
agencies from accepting driver’s licenses or comparable documents for identification
purposes unless the issuing state requires that licenses or documents given to nonimmigrants
expire no later than the expiration date of their nonimmigrant visas. H.R. 4043 was
approved by the House Immigration Subcommittee on May 2, 2002.
Other Pending Bills. H.R. 4597, approved by the House Immigration Subcommittee
on May 2, 2002, would make inadmissible to the United States any nonimmigrant owing
more than $2,500 in child support. H.R. 4558, also approved by the House Immigration
Subcommittee on May 2, would extend until the end of FY2006 a visa program that enables
young adults from Ireland to work temporarily in the United States.
LEGISLATION
P.L. 107-45 (S. 1424)
Amends INA to provide permanent authority for the “S†nonimmigrant category.
Passed Senate on September 13, 2001. Passed House on September 15, 2001. Signed on
October 1, 2001.
P.L. 107-56 (H.R. 3162)
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. Passed House on October
24, 2001. Passed Senate on October 25, 2001. Signed on October 26, 2001.
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P.L. 107-116 (H.R. 3061)
Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2002. Reported by Appropriations Committee (H.Rept. 107-
229) on October 9, 2001. Passed House, as amended, on October 11, 2001. Passed Senate,
as amended, on November 6, 2001. House agreed to conference report (H.Rept. 107-342)
on December 19, 2001; Senate agreed on December 20, 2001. Signed on January 10, 2002.
P.L. 107-124 (H.R. 2277)
Amends INA to provide work authorization for nonimmigrant spouses of treaty traders
and treaty investors. Reported by Judiciary Committee (H.Rept. 107-187) on August 2,
2001. Passed House on September 5, 2001. Reported by Senate Judiciary Committee
(without written report) on December 13, 2001. Passed Senate on December 20, 2001.
Signed January 16, 2002.
P.L. 107-125 (H.R. 2278)
Amends INA to provide work authorization for nonimmigrant spouses of intracompany
transferees, and to reduce the period of time that certain intracompany transferees have to
be continuously employed overseas before applying for admission to the United States.
Reported by Judiciary Committee (H.Rept. 107-188) on August 2, 2001. Passed House on
September 5, 2001. Reported by Senate Judiciary Committee (without written report) on
December 13, 2001. Passed Senate on December 20, 2001. Signed January 16, 2002.
P.L. 107-128 (H.R. 3030)
Basic Pilot Extension Act of 2001. Reported by Judiciary Committee (H.Rept. 107-
310, Part I) on November 30, 2001. Passed House, as amended, on December 11, 2001.
Passed Senate on December 20, 2001. Signed on January 16, 2002.
P.L. 107-150 (H.R. 1892)
Family Sponsor Immigration Act of 2001. Reported by Judiciary Committee (H.Rept.
107-127) on July 10, 2001. Passed House, as amended, on July 23, 2001. Reported by
Senate Judiciary Committee (without written report) on December 13, 2001. Passed Senate,
as amended, on December 20, 2001. House agreed to Senate amendment on February 26,
2002. Signed on March 13, 2002.
P.L. 107-171 (H.R. 2646)
Farm Security and Rural Investment Act of 2002. Reported by Agriculture Committee
(H.Rept. 107-191, Part I) on August 2, 2001; supplemental report filed by Agriculture
Committee (H.Rept. 107-191, Part II) on August 31, 2001. Reported by International
Relations Committee (H.Rept. 107-191, Part III) on September 10, 2001. Passed House, as
amended, on October 5, 2001. Passed Senate, as amended, on February 13, 2002. House
agreed to conference report (H.Rept. 107-424) on May 2, 2002; Senate agreed on May 8,
2002. Signed on May 13, 2002.
P.L. 107-173 (H.R. 3525)
Enhanced Border Security and Visa Entry Reform Act of 2002. Passed House, as
amended, on December 19, 2001. Passed Senate, as amended, on April 18, 2002; Senate
passed related enrolling resolution (S.Con.Res. 106) on May 7, 2002. House agreed to
Senate amendments and to resolution on May 8, 2002. Signed on May 14, 2002.
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H.R. 1209 (Gekas)
Child Status Protection Act of 2001. Reported by Judiciary Committee (H.Rept. 107-
45) on April 20, 2001. Passed House, as amended, on June 6, 2001. Reported by Senate
Judiciary Committee (without written report) on May 16, 2002.
H.R. 1840 (T. Davis)
Extends eligibility for refugee status for the unmarried sons and daughters of certain
Vietnamese refugees. Reported by Judiciary Committee (H.Rept. 107-254) on October 29,
2001. Passed House, as amended, on October 30, 2001. Reported by Senate Judiciary
Committee (without written report) on December 13, 2001. Passed Senate on May 10, 2002.
H.R. 1885 (Gekas)
Section 245(i) Extension Act of 2001. Passed House on May 21, 2001. Passed Senate,
as amended, on September 6, 2001. House agreed to Senate amendment with amendments
pursuant to H.Res. 365 on March 12, 2002.
H.R. 2833 (C. Smith)
Viet Nam Human Rights Act. Passed House on September 6, 2001.
H.R. 3231 (Sensenbrenner)
Immigration Reform and Accountability Act of 2001. Reported by Judiciary
Committee (H.Rept. 107-413) on April 19, 2002. Passed House, as amended, on April 25,
2002.
H.R. 4090 (Herger)
Personal Responsibility, Work, and Family Promotion Act of 2002. Reported by Ways
and Means Committee (H.Rept. 107-460, Part I) on May 14, 2002. Provisions incorporated
into H.R. 4737.
H.R. 4737 (Pryce)
Personal Responsibility, Work, and Family Promotion Act of 2002. Passed House on
May 16, 2002.
S. 672 (Feinstein)
Child Status Protection Act of 2001. Reported by Judiciary Committee (without written
report) on May 16, 2002.
S. 864 (Leahy)
Anti-Atrocity Alien Deportation Act of 2001. Reported by Judiciary Committee
(S.Rept. 107-144) on April 25, 2002.
S. 2452 (Lieberman)
National Homeland Security and Combating Terrorism Act of 2002. Ordered reported
by Governmental Affairs Committee on May 22, 2002.
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