Order Code IB10103
Issue Brief for Congress
Received through the CRS Web
Immigration Legislation and
Issues in the 107th Congress
Updated July 10, 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

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
INS Reorganization
Admissions Policy
Visa Issuance
Visa Waiver Program (VWP)
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
Nonimmigrant Registration and Tracking
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
Waivers for Nonimmigrant Physicians
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
Temporary Assistance for Needy Families.
Congress include the reorganization of the
The House-passed version would not change
Immigration and Naturalization Service (INS),
the eligibility rules for noncitizens. The
a part of the Department of Justice (DOJ);
substitute version of H.R. 4737 marked up by
admissions policy; and the eligibility of non-
the Senate Finance Committee, however,
citizens for public assistance. Also pending
would give states the option to use TANF
are various measures to enable unauthorized
funds to assist all LPRs. The reauthorization
aliens to become legal permanent residents
of the Medicaid program is the subject of
(LPRs) and to reform temporary guest worker
separate legislation.
programs.
The 107th Congress also has considered
The House has passed an INS reorganiza-
legislation (H.R. 1885) to enable certain
tion bill (H.R. 3231) that would abolish INS
unauthorized aliens in the United States to
and create two separate bureaus within DOJ to
adjust to LPR status. This legislation would
carry out INS’s current immigration services
extend a provision of the Immigration and
and enforcement functions. The Senate Gov-
Nationality Act — §245(i) — that currently
ernmental Affairs Committee has reported a
covers illegal aliens whose sponsors filed
bill (S. 2452) that would transfer INS’s border
petitions or applications on their behalf by
patrol authorities and functions, along with
April 30, 2001. H.R. 1885 has been passed in
other agencies’ border functions, to a new
different forms by the House and Senate.
agency. President Bush has proposed transfer-
Other pending bills would establish mecha-
ring INS to a new cabinet-level department of
nisms to allow particular groups of unautho-
homeland security. A bill (H.R. 5005) to
rized aliens — namely, agricultural workers
establish the new department has been intro-
and students — to become LPRs.
duced in the House.
Temporary guest worker programs are
Admissions policy, particularly respon-
also the subject of pending bills. Among
sibility for issuing visas, is a key issue in
these bills are measures that would make
discussions about establishing a homeland
significant changes to the H-2A program for
security department. The State Department
foreign agricultural workers and the H-1C
currently has authority over visa issuances.
program for foreign nurses.
Under H.R. 5005, the new department would
set visa issuance policies, but the State De-
Congress has enacted various pieces of
partment would retain responsibility for im-
immigration-related legislation to date. In
plementation.
addition to the farm bill mentioned above, the
most significant of these measures address
Congress is addressing noncitizen eligi-
immigration-related counterterrorism and
bility for public assistance in the context of
security issues. Both the USA PATRIOT Act
bills to reauthorize federal public benefit
(P.L. 107-56) and the Enhanced Border Secu-
programs. The “farm bill” (P.L. 107-171)
rity and Visa Entry Reform Act (P.L. 107-173)
expands eligibility for food stamps for certain
contain provisions on border security, admis-
classes of LPRs. H.R. 4737 would reauthorize
sions policy, and foreign students.
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MOST RECENT DEVELOPMENTS
On June 24, the Bush Administration proposal to establish a new department of
homeland security, which would include the Immigration and Naturalization Service, was
introduced in the House as H.R. 5005. On July 10, various House committees began
marking up the bill.
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-related issues, such as border security,
admissions policy, and the tracking of foreign nationals in the United States. Major
legislation was enacted in these areas. While security-related issues remain on the agenda
and have gained renewed prominence with the recent Administration proposal to establish
a homeland security department, the 107th Congress is also considering other immigration
issues. Top immigration-related issues currently before Congress are the reorganization of
INS, admissions policy, and noncitizen eligibility for federal benefits. These issues are
discussed, in turn, 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.
On June 6, 2002, President Bush proposed to establish a new cabinet-level department
of homeland security, and on June 24, 2002, the Homeland Security Act of 2002 (H.R. 5005)
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was introduced in the House to enact the Administration’s plan. H.R. 5005 would transfer
INS to the new department, along with other agencies and units that perform homeland
security-related functions. It would place INS under the new department’s border and
transportation security division. Various House committees with jurisdiction over aspects
of the plan began marking up H.R. 5005 on July 10, 2002. A related bill (S. 2452) was
reported by the Senate Committee on Governmental Affairs on June 24, 2002. S. 2452
would transfer INS’s border patrol, inspections, interior enforcement, intelligence, detention
and removal, and international affairs functions (along with other agencies and units that
perform homeland security-related functions) to a newly created department.
Prior to the President’s announcement of the proposal to place INS in a new homeland
security department, the Administration and Congress were each moving forward with plans
to restructure INS. On November 14, 2001, the Administration announced its plans to
restructure INS by separating the agency’s service and enforcement responsibilities. On
April 17, 2002, Attorney General John Ashcroft announced action on his first steps to
reorganize INS.
Several pieces of legislation were introduced in the 107th Congress 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 H.R. 3231, as amended. 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. (See CRS Report RL31388, Immigration and Naturalization
Service: Restructuring Proposals in the 107th Congress.)
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 based on the
following critera: 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.
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The USA PATRIOT Act (P.L. 107-56) 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 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. H.R. 5013, introduced on June
26, 2002, would expand and recodify the grounds for inadmissibility in the INA as part of
its significant revision of immigration policy. (See CRS Report RL31381, U.S. Policy on
Temporary Admissions.)
Visa Issuance
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.) Consular officers must interview all aliens seeking visas to become legal
permanent residents, but have discretion in whether they interview aliens seeking most
nonimmigrant visas. H.R. 5013 would require that consular officers conduct a personal
interview of all aliens seeking visas to the United States.
Provisions in 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 the Enhanced Border Security and Visa
Entry Reform Act (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.
There is considerable congressional interest in proposals to transfer visa issuance
functions to a new homeland security department. In the President’s June 6, 2002 proposal
for the new department, it appeared that DOS would retain its visa issuance responsibilities.
As introduced, the Administration’s legislation to establish the homeland security department
(H.R. 5005) would bifurcate visa issuances so that the new department would set the policies
and DOS would retain responsibility for implementation.
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
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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.)
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.
Noncitizen eligibility also was a key issue in the comprehensive legislation reauthorizing
Agriculture Department programs (H.R. 2646, known as the “farm bill”), because the bill
includes 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.)
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Food Stamps
On May 13, 2002, President Bush signed H.R. 2646, the “Farm Security and Rural
Investment Act,” into law (P.L. 107-171). 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
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
On May 14, 2002, the House Ways and Means Committee reported a TANF
reauthorization measure, H.R. 4090. In doing so, the Committee rejected 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. When
the Senate Finance Committee marked up its substitute version of H.R. 4737 on June 26,
2002, it included provisions that would give states the option to use TANF funds to assist
all LPRs.
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 coverage for noncitizens. 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. During its June 26 markup of H.R. 4737, the Senate Finance
Committee agreed to an amendment giving states the option to cover pregnant and
postpartum LPRs and their children under Medicaid/SCHIP.
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, and S. 1291) would repeal IIRIRA §505 and, as discussed below, would
enable certain unauthorized alien students to become LPRs. On June 20, 2002, the Senate
Judiciary Committee reported a revised version of S. 1291. Some of the bills (but not S.
1291, as reported) also would make alien students who apply for relief under their terms
eligible for federal postsecondary education benefits, such as student financial aid. (See CRS
Report RL31365, Unauthorized Alien Students: Issues and Legislation.)
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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.”
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.)
Adjustment of Alien Students
Multiple bills before Congress (H.R. 1563, H.R. 1582, H.R. 1918, and S. 1291) would
enable certain unauthorized alien students in the United States to become LPRs. A revised
version of S. 1291, representing a compromise between S. 1265 and S. 1291, as introduced,
was reported by the Senate Judiciary Committee on June 20, 2002. To be eligible for LPR
status under this bill, an alien must be at least age 12 on the date of enactment, have resided
continuously in the United States for at least 5 years on the date of enactment, and have a
high school diploma or equivalent credential, among other requirements. (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.)
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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.”
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.
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, 2001, 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. (The Gramm
proposal is available at [http://www.senate.gov/~gramm/press/guestprogram.html].)
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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
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
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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 DOS Bureau of Consular
Affairs, and the Department of the Treasury’s U.S. Customs Service. At DOS 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 suspected terrorists.
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, this border and its coastal areas account for 80% of all illegal traffic into the United
States. The U.S.-Canada border, however, the larger of the two borders by some 2,000 miles,
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 PATRIOT Act includes provisions to enhance
border security. It 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 acquire additional equipment for the northern border.
P.L. 107-173 also contains major border security provisions. It 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 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.”
Other key 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.
(DOJ’s proposal for an entry/exit registration system is discussed in a separate section
below.) IIRIRA included such provisions, but they were later amended. 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. It 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.
Other bills before the 107th Congress that include immigration-related border security
provisions are H.R. 3205/S. 1618, H.R. 3129, and H.R. 5013. (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 counter-
terrorism 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].)
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Nonimmigrant Registration and Tracking
The INA provides for the registration of aliens. Among the relevant provisions, INA
§262 requires that aliens in the United States for 30 days be registered and fingerprinted, and
INA §263 authorizes the Attorney General to prescribe special regulations for the registration
and fingerprinting of any class of aliens, other than LPRs. Pursuant to these sections, INS
published a rule in December 1993 stating that upon public notice in the Federal Register,
the Attorney General may require that nonimmigrants from designated countries be
registered and fingerprinted upon arrival in the United States. Currently, these requirements
apply to nationals from Iran, Iraq, Libya, and Sudan. INA §265(b) further authorizes the
Attorney General to require upon 10 days notice that nationals of any foreign state who are
in the United States and are subject to registration notify the Attorney General of their current
addresses and furnish such additional information as the Attorney General may require. H.R.
5013 would amend the INA registration provisions to establish additional registration
requirements.
Citing the INA’s registration provisions and other authority, DOJ outlined a proposal
for a “National Security Entry-Exit Registration System” on June 5, 2002. On June 13, DOJ
published a proposed rule to implement this system. The proposed rule would amend and
broaden existing special registration requirements (in 8 CFR 264.1(f)). Under the proposed
rule, special registration requirements would apply to nonimmigrant aliens from countries
designated by the Attorney General, as well as to nonimmigrants from any country who meet
criteria indicating that the aliens’ presence in the United States warrants monitoring in the
interests of national security or law enforcement. Upon arrival in the United States, aliens
subject to special registration would be fingerprinted, photographed, and checked against
databases of known criminals and terrorists. They also would be required to provide “routine
and readily available information,” such as personal information and information about their
plans in the country. If these aliens remained in the United States for 30 days or longer, they
would be required to report to an INS office between the 30th and 40th day to confirm their
initial registration information. Those aliens remaining for more than a year would have to
reaffirm their registration information annually. Aliens subject to special registration also
would have to notify INS of any change of address within 10 days. Upon departure, these
aliens would be required to report their exit to INS. In addition, according to the proposed
rule, certain aliens from designated countries already residing in the United States may also
be required to register. If the Attorney General finds this necessary, a notice will be
published in the Federal Register with the relevant details. The comment period on the
proposed rule runs through July 15, 2002. (The proposed rule is available in Federal
Register, v. 67, no. 114, June 13, 2002. p. 40581-40586.)
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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P.L. 107-185 revises and re-enacts for FY2002 and FY2003 a provision commonly
referred to as the “McCain amendment.” The McCain amendment made the adult children
of certain Vietnamese refugees eligible for U.S. refugee resettlement. Among its provisions,
P.L. 107-185 would enable adult children previously denied resettlement to have their cases
reconsidered. 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. On June
13, 2002, the Senate passed both bills. As passed by the Senate, 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
information to law enforcement officials. Under this law, aliens who provide critical
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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 years to 6 years.
Waivers for Nonimmigrant Physicians. Foreign physicians in the United States
on J-1 visas must return to their home country after completing their education or training
unless they are granted a waiver. H.R. 4858 would amend the INA to increase the number
of J-1 visa waivers that states could request (under the so-called “Conrad 20” program) from
20 to 30. The “Conrad 20” provisions of the INA expired on June 1, 2002. H.R. 4858
would extend the program until June 1, 2004. The bill was passed by the House on June 25,
2002. (See CRS Report RL31460, Immigration: Foreign Physicians and the J-1 Visa
Waiver Program.)
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.
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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.
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.
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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.
P.L. 107-185 (H.R. 1840)
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.
Signed on May 30, 2002.
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. Passed Senate, as amended,
on June 13, 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. Ordered reported by Senate Finance Committee on June 26, 2002.
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H.R. 4858 (Jerry Moran)
Amends and extends the authority under INA for states to request foreign residency
requirement waivers for J visa physicians. Reported by Judiciary Committee (H.Rept. 107-
528) on June 24, 2002. Passed House on June 25, 2002.
H.R. 5005 (Armey)
Homeland Security Act of 2002.
S. 672 (Feinstein)
Child Status Protection Act of 2001. Reported by Judiciary Committee (without written
report) on May 16, 2002. Passed Senate, as amended, on June 13, 2002.
S. 864 (Leahy)
Anti-Atrocity Alien Deportation Act of 2001. Reported by Judiciary Committee
(S.Rept. 107-144) on April 25, 2002.
S. 1291 (Hatch)
Development, Relief, and Education for Alien Minors (DREAM) Act. Reported by
Judiciary Committee (without written report) on June 20, 2002.
S. 2452 (Lieberman)
National Homeland Security and Combating Terrorism Act of 2002. Reported by
Governmental Affairs Committee (S. Rept. 107-175) on June 24, 2002.
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