Order Code RL33125
CRS Report for Congress
Received through the CRS Web
Immigration Legislation and Issues
in the 109th Congress
Updated May 12, 2006
Andorra Bruno, Coordinator,
Ruth Ellen Wasem, Alison Siskin, and Blas Nuñez-Neto
Domestic Social Policy Division
Michael John Garcia, Stephen R. Viña, and Margaret Mikyung Lee
American Law Division
Karma Ester
Knowledge Services Group
Congressional Research Service ˜ The Library of Congress

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Immigration Legislation and Issues
in the 109th Congress
Summary
Security concerns are figuring prominently in the development of and debate on
immigration legislation in the 109th Congress. In May 2005, the REAL ID Act
became law as Division B of P.L. 109-13. It contains a number of immigration and
identification document-related provisions intended to improve homeland security.
Among these are provisions to make changes to the Immigration and Nationality Act
(INA) with respect to asylum and other forms of relief from removal; to expand the
terrorism-related grounds for alien inadmissibility and deportation; and to set
standards for state-issued drivers’ licenses and personal identification cards, if such
documents are to be accepted for federal purposes.
The security-related issue of immigration enforcement remains on Congress’s
agenda. H.R. 4437, as passed by the House, contains provisions on border security,
the role of state and local law enforcement, employment eligibility verification and
worksite enforcement, smuggling, detention, and other enforcement-related issues.
Many of these provisions were included in H.R. 4312, a predecessor bill of H.R.
4437 reported by the House Homeland Security Committee. The enforcement-
related issues in H.R. 4437 are also the subject of other bills.
In addition to its enforcement provisions, H.R. 4437 contains significant and,
in some cases, highly controversial provisions on unlawful presence, voluntary
departure and removal, expedited removal, and denying U.S. entry to nationals from
uncooperative countries. Despite efforts by some House Members to amend H.R.
4437 to establish new guest worker programs, the bill does not contain any such
provisions. Some other bills, however, do combine enforcement provisions with
provisions on legal temporary admissions, including guest workers, and/or legal
permanent admissions. Among these measures are S. 1033/H.R. 2330, S. 1438, S.
2454, S. 2611/S. 2612, and H.R. 3333. The Senate considered several immigration
reform proposals on the floor earlier this year but did not pass a bill. The 109th
Congress also has held hearings on immigration reform issues and has enacted
limited provisions on temporary and permanent employment-based immigration as
part of P.L. 109-13.
Among the other immigration bills receiving action thus far in the 109th
Congress are measures on alien victims of domestic violence (P.L. 109-162 and S.
1197), trafficking in persons (P.L. 109-162, P.L. 109-164, and S. 1197), and refugees
(P.L. 109-102 and P.L. 109-149).
Department of Homeland Security (DHS) appropriations and immigration
legislation related to Hurricane Katrina are covered in other products and are not
discussed here. This report will be updated as legislative developments occur.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REAL ID Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Changes to Laws on Asylum and Other Forms of Relief from Removal . . . 3
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Terrorism-Related Grounds for Exclusion and Removal . . . . . . . . . . . . . . . 4
Expediting the Construction of Barriers at the Border . . . . . . . . . . . . . . . . . 4
Improving Border Infrastructure and Technology Integration . . . . . . . . . . . . 4
Requirements Concerning State-Issued Drivers’ Licenses and ID Cards . . . 4
Border Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
H.R. 4437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
S. 2454, the Chairman’s Mark, and S. 2611/S. 2612 . . . . . . . . . . . . . . . . . . . 6
U.S. Military at the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Civilian Patrols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Role of State and Local Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Employment Eligibility Verification and Worksite Enforcement . . . . . . . . . . . . 10
Alien Smuggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Illegal Presence, Removal, and Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Unlawful Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Voluntary Departure and Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Expedited Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Denying Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Consequences for Terrorist and Criminal Activity . . . . . . . . . . . . . . . . . . . 17
Reduction of Appellate Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Temporary Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Guest Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Professional and Managerial Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
L Intracompany Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
H-1B Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Permanent Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Recaptured Visa Numbers for Nurses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Recaptured Employment-Based Visa Numbers . . . . . . . . . . . . . . . . . . . . . . 22
Elimination of Diversity Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
S. 1033/H.R. 2330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
S. 1438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
H.R. 3700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
S. 2454 and Chairman’s Mark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
S. 2611/S. 2612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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LPR Status for Unauthorized Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Immigrant Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Battered Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Trafficking Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Other Legislation and Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Resettlement Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Citizenship and Naturalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Immigration Issues in Free Trade Agreements . . . . . . . . . . . . . . . . . . . . . . 29
Document Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Other Legislation Receiving Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State Criminal Alien Assistance Program (SCAAP) . . . . . . . . . . . . . . 30
Unaccompanied Alien Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Special Immigrant Status for Translators . . . . . . . . . . . . . . . . . . . . . . . 31
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
P.L. 109-13 (H.R. 1268) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
P.L. 109-97 (H.R. 2744) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
P.L. 109-102 (H.R. 3057) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
P.L. 109-149 (H.R. 3010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
P.L. 109-162 (H.R. 3402) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
P.L. 109-163 (H.R. 1815) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
P.L. 109-164 (H.R. 972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H.R. 1817 (Cox) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H.R. 2293 (Hostettler) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H.R. 3648 (Sensenbrenner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H.R. 4312 (King) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
H.R. 4437 (Sensenbrenner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
S. 119 (Feinstein) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
S. 1197 (Biden) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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Immigration Legislation and Issues
in the 109th Congress
Introduction
Since the September 11, 2001 terrorist attacks, policymakers have linked the
issue of immigration, particularly unauthorized immigration, to homeland security.
This linkage was cemented with the passage of the Homeland Security Act of 2002
(P.L. 107-296), which shifted primary responsibility for immigration policy from the
former Immigration and Naturalization Service (INS) to a new Department of
Homeland Security (DHS). As in the past several years, security concerns are
figuring prominently in the development of and debate on immigration legislation in
the 109th Congress. In May 2005, the REAL ID Act became law as Division B of the
FY2005 Emergency Supplemental Appropriations Act for Defense, the Global War
on Terror, and Tsunami Relief (P.L. 109-13). It contains a number of immigration
and identification document-related provisions intended to improve homeland
security.
The security-related issue of immigration enforcement continues to be on the
congressional agenda. Various bills have been introduced that address enforcement-
related issues, including border security; the roles of the U.S. military, civilian
patrols, and state and local law enforcement agencies in immigration enforcement;
smuggling; detention; and the enforcement of prohibitions on employing
unauthorized workers. Among these bills is the Border Protection, Antiterrorism,
and Illegal Immigration Control Act of 2005 (H.R. 4437), which was passed by the
House on December 16, 2005. A number of provisions in H.R. 4437 were included
in a predecessor bill (H.R. 4312), as reported by the House Homeland Security
Committee.
Immigration reform proposals that combine enforcement provisions with
provisions on temporary and permanent immigration and other issues are also before
the 109th Congress. In the Senate, in March 2006, the Judiciary Committee amended
and approved an immigration proposal drafted by Committee Chairman Specter,
known as the Chairman’s mark.1 This bill contained provisions on border
enforcement, interior enforcement, and unlawful employment of aliens, as well as on
guest workers, legal permanent immigration reform, unauthorized aliens in the
United States, and other issues. Prior to the completion of the mark-up, Senator
Frist introduced a separate bill, Securing America’s Borders Act (S. 2454),
containing selected titles of the Chairman’s mark, with some modifications. These
titles address border enforcement, interior enforcement, unlawful employment,
permanent legal immigration reform, and other topics. S. 2454 does not contain
1 The version of the Chairman’s mark discussed in this report is as of March 7, 2006.

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CRS-2
provisions on guest workers or on the future status of unauthorized aliens in the
United States. During Senate floor debate on S. 2454 in late March, Senator Specter
proposed a substitute amendment based on the Judiciary Committee-approved bill
(S.Amdt. 3192). On April 6, 2006, the Senate rejected a motion, by a vote of 39 to
60, to invoke cloture (and thereby initiate post-cloture procedures to eventually move
to a vote) on the Specter substitute. The following day, the Senate rejected two other
cloture motions: It rejected, on a 38 to 60 vote, a motion to invoke cloture on a
motion to recommit S. 2454 to the Senate Judiciary Committee with instructions that
it be reported back with the Hagel amendment (Hagel-Martinez compromise); and
it rejected, on a 36 to 62 vote, a motion to invoke cloture on S. 2454.2 The Hagel-
Martinez compromise, with some modifications, was subsequently introduced in the
Senate as the Comprehensive Immigration Reform Act of 2006 (S. 2611/S. 2612).3
Other related immigration reform bills before Congress include the Secure
America and Orderly Immigration Act (S. 1033/H.R. 2330) and the Comprehensive
Enforcement and Immigration Reform Act of 2005 (S. 1438), both of which address
immigration enforcement, guest workers, and legal permanent immigration reform,
among other issues. In addition, the 109th Congress has held a number of immigration
reform-related hearings.
While immigration reform proposals remain pending, Congress has enacted
limited provisions on temporary and permanent employment-based immigration as
part of P.L. 109-13. It also has enacted legislation concerning alien victims of
domestic violence, trafficking in persons, and refugees. This report discusses these
and other immigration-related issues that have seen legislative action or are of
significant congressional interest. DHS appropriations and immigration legislation
related to Hurricane Katrina are covered in other products and are not discussed
here.4 The final section of the report lists enacted legislation and selected bills
receiving action.
REAL ID Act
During the 108th Congress, a number of proposals concerning immigration and
identification-document security were introduced, some of which were enacted as
part of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).
At the time that law was adopted, some congressional leaders reportedly agreed to
revisit certain immigration and document-security issues in the 109th Congress that
2 A list of Senate floor votes on S. 2454 is available at:
[http://www.cq.com/narrowsearch.do?dataSource=floorvote&searchIndex=2].
3 S. 2611 and S. 2612 are identical. S. 2611, introduced by Senator Specter with Senators
Hagel and Martinez among its cosponsors, has been placed on the Senate legislative
calendar. S. 2612, introduced by Senator Hagel with the same cosponsors as S. 2611, has
been referred to the Senate Judiciary Committee.
4 See, respectively, CRS Report RL32863, Homeland Security Department: FY2006
Appropriations, by Jennifer E. Lake and Blas Nuñez-Neto; and CRS Report RL33091,
Hurricane Katrina-Related Immigration Issues and Legislation, by Ruth Ellen Wasem.

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CRS-3
had been dropped from the final version of the legislation. The REAL ID Act (P.L.
109-13, Division B) contains a number of the dropped provisions, along with some
new proposals.5 This discussion focuses on Titles I, II, and III of the REAL ID Act.
Titles IV and V, which deal with nonimmigrant and immigrant workers, are covered
respectively in the temporary and permanent immigration sections of this report.
Changes to Laws on Asylum and
Other Forms of Relief from Removal
The REAL ID Act makes a number of changes to Immigration and Nationality
Act (INA)6 provisions concerning asylum and other forms of relief from removal.
It provides express statutory guidelines regarding burden of proof, eligibility, and
credibility standards in relief from removal cases. In most cases, no statutory
standards existed prior to the REAL ID Act; instead, standards were established by
regulation and (sometimes conflicting) case law. In some areas, the guidelines
established by the REAL ID Act are arguably more stringent than under preexisting
law (e.g., pursuant to the act an asylum applicant must now show that one of the five
grounds for asylum eligibility was or will be at least one central reason for his
persecution, a higher standard than previously employed in some federal circuits); in
other cases, the REAL ID Act simply codifies existing regulation or case law. The
act also eliminates the annual caps on the number of persons granted asylum who
may have their status adjusted to legal permanent residents (LPRs), and on the
number of persons who may enter the United States as refugees/asylees on account
of persecution for resistance to coercive population control methods (a special
asylum category).7
Judicial Review
The REAL ID Act expressly limits federal habeas review and certain other
non-direct judicial review for certain matters relating to the removal of aliens under
INA §242, while permitting appellate court review of constitutional claims and
questions of law. These measures appear to be in response to Supreme Court
jurisprudence, which had previously interpreted the general limitations on judicial
review contained in INA §242 as not precluding federal courts from exercising their
habeas corpus jurisdiction review over removal-related decisions concerning aliens
who had been detained pending removal.
5 For a detailed discussion of the REAL ID Act, see CRS Report RL32754, Immigration:
Analysis of the Major Provisions of the REAL ID Act of 2005, by Michael John Garcia,
Margaret Mikyung Lee, and Todd Tatelman.
6 Act of June 27, 1952, ch. 477; 66 Stat. 163; 8 U.S.C. 1101 et seq. The INA is the basis
of current immigration law.
7 For further information on asylum, see CRS Report RL32621, U.S. Immigration Policy on
Asylum Seekers, by Ruth Ellen Wasem.

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CRS-4
Terrorism-Related Grounds for Exclusion and Removal
The REAL ID Act expands the terrorism-related grounds for alien
inadmissibility and deportation, as well as the meaning of certain terms used in the
INA to describe terrorist activities or entities, to cast a wider net over groups and
persons who provide more discrete forms of assistance to terrorist organizations,
particularly with respect to fund-raising and soliciting membership in those
organizations. The REAL ID Act makes activities such as espousal of terrorist
activity and receipt of military-type training from or on behalf of a terrorist
organization grounds for exclusion. It also significantly expands the terrorism-
related grounds for deportation so that they are identical to the terrorism-related
grounds for inadmissibility. At the same time, the REAL ID Act provides the
Secretary of State and the Secretary of Homeland Security with authority to waive
certain terrorism-related INA provisions that would otherwise make a particular alien
inadmissible or cause a group to be designated as a terrorist organization.8
Expediting the Construction of Barriers at the Border
The REAL ID Act provides the Secretary of Homeland Security with authority
to waive the application of any legal requirements when he believes such a waiver
is necessary to ensure the expeditious construction of certain barriers and roads along
U.S. land borders, including a 14-mile wide fence near San Diego. The act provides
that federal judicial review of waiver decisions or actions by the Secretary is limited
to those claims alleging a violation of the U.S. Constitution.9
Improving Border Infrastructure and Technology Integration
The REAL ID Act includes measures to improve border infrastructure and
technology integration between state and federal entities. DHS is required to conduct
a study on border security vulnerabilities, establish a pilot program to test ground
surveillance technologies on the northern and southern borders, and implement a plan
to improve communications systems and information-sharing between federal, state,
local, and tribal agencies on matters relating to border security. DHS is also required
to submit reports to Congress concerning the implementation of these requirements.
Requirements Concerning State-Issued
Drivers’ Licenses and ID Cards
The REAL ID Act contains a number of provisions relating to the improved
security of state-issued drivers’ licenses and personal identification (ID) cards. It
requires states to adopt certain practices and procedures regarding the verification of
documents used to obtain drivers’ licenses and ID cards, and establishes minimum
issuance standards for state-issued drivers’ licenses and personal identification cards,
8 For additional information, see CRS Report RL32564, Immigration: Terrorist Grounds
for Exclusion of Aliens, by Michael John Garcia and Ruth Ellen Wasem.
9 For additional information, see CRS Report RS22026, Border Security: Fences Along the
U.S. International Border, by Blas Nuñez-Neto and Stephen R. Viña.

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CRS-5
if such documents are to be accepted for official federal purposes. States must also
verify an applicant’s legal status in the United States before issuing a driver’s license
or personal identification card that may be accepted for any federal purpose, and may
only issue aliens temporary drivers’ licenses or ID cards which expire on the date
when the aliens’ legal presence in the United States is due to end. If a state opts not
to conform with REAL ID Act guidelines, the act nevertheless requires the state’s
drivers’ licenses and ID cards to contain certain identifying features that alert federal
officials that such documents are not to be accepted for any official federal purposes.
Further, all states are required to maintain a motor vehicle database that contains
specified information regarding persons issued drivers’ licenses and ID cards, and
this database must be made accessible to all other states. The deadline for state
compliance with all applicable provisions of the REAL ID Act is three years after
enactment (May 11, 2008), though the Secretary of Homeland Security is authorized
to extend this deadline for any state that presents an adequate justification for its
noncompliance.
Border Security
DHS is charged with protecting our nation’s borders from weapons of mass
destruction, terrorists, smugglers, and unauthorized aliens. Border security involves
securing the many means by which people and things can enter the country.
Operationally, this means controlling the official ports of entry (POE) through which
legitimate travelers and commerce enter the country and patrolling the nation’s land
and maritime borders to safeguard against and interdict illegal entries.
Border security is a key immigration issue for the 109th Congress. As discussed
above, border security provisions were enacted as part of the REAL ID Act. In
addition, a variety of other bills addressing different aspects of the issue are pending.
There has been much debate in the 109th Congress about whether DHS has sufficient
resources to fulfill its border security mission, and some bills would add resources
to the border, including personnel, infrastructure, and technology. Other bills
propose to expand various programs already being implemented by DHS at the
border. H.R. 4437, as passed by the House, S. 2454, the Chairman’s mark, and S.
2611/S. 2612 contain provisions of both types.10 Other pending bills would involve
the military or civilians in patrolling the U.S. border.11
H.R. 4437
H.R. 4437, as passed by the House, contains a number of border-security related
provisions; this section describes a selection of these provisions. The bill would
require the Secretary of DHS to submit a National Strategy for Border Security
10 Almost all of the border security provisions in H.R. 4437 were included in a related bill
(H.R. 4312), as reported by the House Homeland Security Committee.
11 For an expanded discussion of immigration-related border security issues, see CRS Report
RL33181, Immigration Related Border Security Legislation in the 109th Congress, by Blas
Nuñez-Neto.

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outlining a comprehensive strategy for securing the border, including a surveillance
plan and a time line for implementation. It would add personnel, technology, and
infrastructure resources both at and between POE and would direct DHS to work
with the Department of Defense (DOD) to formulate a plan for increasing the
availability and use of military equipment to assist with the surveillance of the
border. Additionally, H.R. 4437 would direct DHS to improve coordination and
communication among its component agencies by creating task forces and other
mechanisms to enhance information and intelligence sharing. It would allow
homeland security grant funding to be used for reimbursing state and local
governments for costs associated with detecting and responding to the unlawful entry
of aliens.12 It would remove Air and Marine Operations (AMO) from DHS’s
Customs and Border Protection (CBP) and establish a stand-alone AMO Office
within the department. It would require DHS to expand the U.S. Visitor and
Immigrant Status Technology (US-VISIT) Program13 to collect ten fingerprints from
aliens currently required to register with the program as they enter the country.
Lastly, as amended on the House floor, H.R. 4437 would direct DHS to construct
border fencing along five different stretches of the southern border that total roughly
730 miles, and it would require DHS to submit a time line for deploying and enabling
the exit component of US-VISIT at land POE.
S. 2454, the Chairman’s Mark, and S. 2611/S. 2612
In the Senate, S. 2454, the Chairman’s mark, and S. 2611/S. 2612 contain a
number of border security-related provisions that are similar. Many of the provisions
in these bills are also similar to provisions in H.R. 4437, including those calling for
developing a national border security plan, for using military surveillance assets at
the border, and for additional resources. S. 2454, the Chairman’s mark, and S.
2611/S. 2612 would require DHS to develop a National Strategy for Border Security
that sets forth actions that must be carried out to achieve operational control of the
border and establishes a schedule for implementing these actions. They would
require DHS to develop a comprehensive plan for the systematic surveillance of the
border, and would direct DHS and DOD to develop a plan to increase the use of
DOD equipment to surveil the border. The bills would add resources for border
security by authorizing increases for personnel, technology, and infrastructure. They
include provisions authorizing the Border Patrol to maintain temporary or permanent
checkpoints on roadways, and CBP to construct additional POEs as necessary. S.
2454, the Chairman’s mark, and S. 2611/S. 2612 would require DHS to enhance the
connectivity of their biometric fingerprint database with the Federal Bureau of
Investigation’s database, and to develop and implement a plan to ensure clear two-
way communications for its agents working along the border. The bills would
require DHS to submit a schedule for deploying US-VISIT at all land POE, for
developing and deploying the system’s exit control component, and for making all
immigration screening systems interoperable. They also would authorize DHS to
12 For a discussion of the role of state and local law enforcement in the enforcement of
immigration law, see the next main section of the report.
13 For additional information on the US-VISIT program, see CRS Report RL32234, U.S.
Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa Seghetti
and Stephen Viña.

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CRS-7
require entering and departing aliens to provide information including biometric data,
and to collect biometric data from alien crewmen. Additionally, the bills would add
withholding biometric data as a ground for inadmissibility. The bills would direct
DHS, in conjunction with other federal agencies, to submit a study on the
construction of a system of barriers along the southern and northern borders and to
replace the current border fencing in the Border Patrol’s Tucson and Yuma Sectors
in Arizona with a reinforced double layer fence, and would direct DHS to construct
200 miles of vehicle barriers in the Sectors. The bills also would require the DHS
Inspector General (IG) to review all contracts relating to the Department’s Secure
Border Initiative14 (SBI) worth more than $20 million dollars, and would require the
Secretary to report the IG’s findings to Congress and to report to Congress any
contracts awarded under the SBI to companies with headquarters outside the United
States.
The Chairman’s mark and S. 2611/S. 2612 include several border security
related provisions that are similar to each other but that are not present in S. 2454.
The Chairman’s mark and S. 2611/S. 2612 include the Border Tunnel Prevention
Act, which would create criminal penalties for individuals involved in the
construction of tunnels or subterranean passages that cross the U.S. international
border. Additionally, these bills include provisions that would establish criminal
penalties for attempting to evade inspection at POE or for disregarding orders given
by CBP officers, Border Patrol agents, or Immigration and Customs Enforcement
(ICE) investigators.
Lastly, S. 2611/S. 2612 includes some provisions that are not present in either
S. 2454 or the Chairman’s mark. S. 2611/S. 2612 would create a border relief grant
program that would authorize DHS to award grants to state and local law
enforcement agencies for assistance in addressing border-related criminal activity.
These grants would be awarded on a competitive basis, with priority given to
communities with less than 50,000 residents within 100 miles of the Mexican or
Canadian border. S. 2611/S. 2612 would also direct the General Services
Administration to update its Port of Entry Infrastructure Assessment Study to
ascertain what improvement projects are needed to enhance border security and
facilitate commerce, and would direct DHS to conduct vulnerability assessments of
each POE located at a land border. The bills would require DHS to undertake a
technology demonstration program at three to five sites to test and evaluate new POE
technologies and refine existing technologies. They would direct DHS to develop
and implement an aerial surveillance program to fully integrate the use of aerial
technologies, including unmanned aerial vehicles (UAVs), in surveilling the border
in order to ensure continuous monitoring of each mile of the northern and
southwestern borders. The bills would also require DHS to procure additional
surveillance technologies to create a fully integrated automated surveillance program.
14 The Secure Border Initiative is a three pillared plan for securing the border that, according
to DHS, “will focus on controlling the border, building a robust interior enforcement
program, and establishing a Temporary Worker Program.” SBI includes all the DHS
resources that are deployed at the border, including personnel, technology, and infrastructure
such as vehicle barriers or fencing. United States Department of Homeland Security,
FY2007 Congressional Budget Justifications, p. CBP-S&E-6.

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CRS-8
Lastly, S. 2611/S. 2612 would direct DHS to work with the Department of the
Interior to provide CBP personnel and technological resources to secure federal land
and National Park Service property along the border and to provide federal land
resource training for CBP personnel deployed to federal land in order to minimize the
adverse impact on natural and cultural resources.
U.S. Military at the Border
The National Defense Authorization Act for Fiscal Year 2006 (P.L. 109-163)
includes a provision (§1035) that requires a report from the Secretary of Defense
concerning the potential use of military air assets to support DHS by surveilling the
border. This language was inserted during conference, and replaced prior language
in the House-passed version of the bill (H.R. 1815) that would have authorized the
U.S. military to be deployed to the border to assist DHS in preventing the entry of
terrorists, drug smugglers, and unauthorized aliens at and between official ports of
entry. Under the House-passed provision, U.S. military personnel would have been
deployed to the border only at the request of the Secretary of Homeland Security and
only after completing a training course on border law enforcement. Military
personnel would have to have been accompanied by DHS law enforcement personnel
once deployed, and would not have been authorized to conduct searches, seizures, or
other similar law enforcement activities, or to make arrests. This provision would
not have superseded the Posse Comitatus Act, which prohibits the use of the U.S.
military to perform civilian governmental tasks unless explicitly authorized to do
so.15 As previously noted, H.R. 4437, S. 2454, the Chairman’s mark, and S. 2611/S.
2612 all include a provision that would direct DHS to work with DOD to create a
plan that would enhance the use of military surveillance assets at the border.
Civilian Patrols
Several bills in the 109th Congress would create civilian border patrolling
organizations. In the Senate, S. 1823 would establish a pilot Volunteer Border
Marshal Program. This program would use volunteer state peace officers who would
be assigned to the Border Patrol and charged with assisting in “identifying and
controlling illegal immigration and human and drug trafficking.” In the House, H.R.
3704 would create a Border Patrol Auxiliary that would be deployed to the border
and charged with notifying the Border Patrol about unauthorized aliens attempting
to cross into the United States. These auxiliaries would be vested with the same
powers as Border Patrol agents. DHS would be charged with recompensing members
of the auxiliaries for their travel, subsistence, and vehicle operation expenses. H.R.
3622 would authorize state governments to create a militia called the Border
Protection Corps (BPC) in order to prevent the illegal entry of individuals and to take
individuals who have entered illegally into custody. DHS would be responsible for
15 For a detailed explanation of the Posse Comitatus Act (18 U.S.C. 1385), please see CRS
Report RS20590, The Posse Comitatus Act and Related Matters: A Sketch, by Jennifer
Elsea; and CRS Report RS21012, Terrorism: Some Legal Restrictions on Military
Assistance to Domestic Authorities Following a Terrorist Attack, by Charles Doyle and
Jennifer Elsea.

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CRS-9
recompensing the states for all the expenses incurred in the establishment and
operation of their BPCs.
Role of State and Local Law Enforcement
Since the attacks of September 11, many have called on state and local law
enforcement agencies to play a larger role in the enforcement of federal immigration
laws. Some question, however, whether state and local law enforcement officers
possess adequate authority to enforce all immigration laws — that is, both civil
violations (e.g., lack of legal status, which may lead to removal through an
administrative system) and criminal punishments (e.g., alien smuggling, which is
prosecuted in the courts). Multiple bills in Congress would address these authority
issues and enhance the role of state and local law enforcement agencies in the
enforcement of immigration law.16
H.R. 4437, as passed by the House, would reaffirm the existing inherent
authority of States, as sovereign entities (including their law enforcement personnel),
to investigate, identify, apprehend, arrest, detain, or transfer into federal custody
aliens in the United States in the course of carrying out routine duties (§220). Similar
to H.R. 4437, the Department of Homeland Security Authorization Act for FY2006
(H.R. 1817), as passed by the House, would authorize state and local law
enforcement personnel to apprehend, detain, or remove aliens in the United States in
the course of carrying out routine duties (§520). Likewise, it would reaffirm the
existing general authority for state and local law enforcement personnel to carry out
the above mentioned activities. S. 2454 and S. 2611/S. 2612 would also reaffirm a
state’s inherent authority to investigate, identify, apprehend, arrest, detain, or transfer
into federal custody aliens in the United States, but would limit such practices to the
enforcement of the criminal provisions of the INA.
Among its other provisions, H.R. 4437, as passed by the House, would require
the Secretary of DHS to create a training manual to aid state and local law
enforcement officers in carrying out immigration-related enforcement duties (§221).
H.R. 4437 would authorize the Secretary to make grants to state and local police
agencies for the procurement of equipment, technology, facilities, and other products
that are directly related to the enforcement of immigration law (§222). H.R. 4437
would allow a state to reimburse itself with certain DHS grants for activities related
to the enforcement of federal laws aimed at preventing the unlawful entry of persons
or things into the United States that are carried out under agreement with the federal
government (§305). H.R. 4437 would further require designated sheriffs within 25
miles of the southern international border of the United States to be reimbursed or
provided an advance for costs associated with the transfer of aliens detained or in the
custody of the sheriff (§607). S. 2611/S. 2612 would create a border relief grant
program for eligible law enforcement agencies to address criminal activity that occurs
near the border (§153). Under the program, the Secretary of DHS would be
16 For further discussion of this issue, see CRS Report RL32270, Enforcing Immigration
Law: The Role of State and Local Law Enforcement, by Lisa M. Seghetti, Stephen R. Viña,
and Karma Ester.

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CRS-10
authorized to provide grants to law enforcement agencies located within 100 miles
of the northern or southern border or to agencies outside 100 miles that are located
in areas certified as “high impact areas” by the Secretary. S. 2454 (§§220, 229) and
S. 2611/S. 2612 (§§ 224, 229) would also authorize DHS to reimburse state and local
authorities for certain training, transportation, and equipment costs related to
immigration enforcement, and certain costs associated with processing criminal
illegal aliens through the criminal justice system.
Employment Eligibility Verification
and Worksite Enforcement
Under the INA, it is unlawful for an employer to knowingly hire, or recruit or
refer for a fee, or continue to employ an alien who is not authorized to be so
employed. Employers are required to participate in a paper-based employment
eligibility verification system, commonly referred to as the I-9 system, in which they
examine documents presented by new hires to verify identity and work eligibility,
and complete and retain I-9 verification forms. In addition, employers may elect to
participate in an electronic employment eligibility verification system, established
under a 1996 law. Participants in the Basic Pilot program electronically verify new
hires’ employment authorization through Social Security Administration (SSA) and,
if necessary, DHS databases. Employers violating prohibitions on unlawful
employment may be subject to civil and/or criminal penalties.17 Enforcement of
these provisions is termed worksite enforcement.
Employment eligibility verification and worksite enforcement are current areas
of congressional interest. Chief among the reasons for this is the large and growing
number of unauthorized aliens in the United States, the majority of whom are in the
labor force. According to estimates by the Pew Hispanic Center, in 2005, the
unauthorized alien population totaled about 11.1 million and the unauthorized alien
working population totaled about 7.2 million.18 Particularly since the 2001 terrorist
attacks, many have raised security concerns about having such a large unauthorized
population. In addition, the issue of worksite enforcement has gained attention
recently in connection with guest worker proposals. President Bush has expressed
support for a new temporary worker program and has called for increased worksite
enforcement as part of the program. Immigration reform bills containing guest
worker and worksite enforcement-related provisions have been introduced in the
109th Congress.
17 INA §274A, 8 U.S.C. §1324a. For further discussion of these legal provisions, see CRS
Report RS22180, Unauthorized Employment of Aliens: Basics of Employer Sanctions, by
Alison M. Smith.
18 Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Population
in the U.S.; Estimates Based on the March 2005 Current Population Survey, Pew Hispanic
Center Research Report, March 7, 2006, at
[http://www.pewhispanic.org/reports/report.php?ReportID=61].

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CRS-11
A number of bills related to employment eligibility verification and worksite
enforcement are before the 109th Congress. Title VII of H.R. 4437, as passed by the
House, would direct DHS to establish an employment eligibility verification system
(modeled on the Basic Pilot program), which would be mandatory for all employers.
Employers would be required to query the system to verify the identity and
employment eligibility of an individual after hiring or, in a change from Basic Pilot
program requirements, before commencing recruitment or referral. These
verification requirements would take effect two years after enactment. The current
I-9 system would remain in place with some modifications. H.R 4437 also would
require employers to verify the identity and employment eligibility of previously
hired workers by six years after enactment. In addition, H.R. 4437 would increase
existing monetary penalties for employer violations. At the same time, it would
provide for the reduction of civil monetary penalties for employers with 250 or fewer
employees.
The Chairman’s mark and S. 2454 each include employment eligibility
verification and worksite enforcement provisions in Title III; the provisions in the
two titles are nearly identical. Like H.R. 4437, both proposals would direct DHS to
establish an employment eligibility verification system (modeled on the Basic Pilot
program), which would be mandatory for all employers. Employers would be
required to query the system to verify the identity and employment eligibility of an
individual after hiring or recruiting or referring for a fee. Under the Chairman’s mark
and S. 2454, these verification requirements would be phased in for different groups
of employers over a period of up to five years. The Chairman’s mark and S. 2454
would require some, but not all, employers to verify the identity and employment
eligibility of previously hired workers. Employers to be subject to this requirement,
which would be effective 180 days after enactment, would be those who are part of
the critical infrastructure of the United States or who are directly related to U.S.
national or homeland security. The Chairman’s mark and S. 2454 also would
increase existing monetary penalties for employer violations, although to a lesser
extent than H.R. 4437 . In addition, these proposals would establish a new penalty
for employees who falsely represent on the I-9 form that they are authorized to work.
Title III of S. 2611/S. 2612, like H.R. 4437, the Chairman’s mark, and S. 2454,
would direct DHS to establish an employment eligibility verification system
(modeled on the Basic Pilot program), which would be mandatory for all employers.
Under S. 2611/S. 2612, employers would be required to query the system to verify
the identity and employment eligibility of an individual after hiring or recruiting or
referring for a fee. Employers designated by DHS as critical employers based on
critical infrastructure, national security, or homeland security needs could be required
by DHS to participate as of the date that is 180 days after enactment. All remaining
employers would be required to participate as of the date that is 18 months after
funds to implement the verification system are appropriated and made available to
DHS. The current I-9 system would remain in place with some modifications. With
respect to previously hired workers, as of the date 180 days after enactment, DHS
could require any critical employers to verify previously hired workers. In addition,
S. 2611/S. 2612 would increase monetary penalties for employer violations to the
same extent as the Chairman’s mark and S. 2454; also like these Senate proposals,
it would establish a new penalty for employees who falsely represent on the I-9 form
that they are authorized to work.

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CRS-12
Other pending bills, a selection of which are discussed below, would similarly
require all employers to conduct employment eligibility verification through the
Basic Pilot program or a similar system. As detailed in the following paragraphs,
some would maintain the Basic Pilot program’s separation of the DHS and SSA
databases as part of the verification system; others call for the creation of a new
unified database by DHS or SSA. Most of the measures would increase existing
monetary penalties for employer violations. Among their other provisions, the bills
variously would authorize appropriations at such sums as necessary to implement
their provisions, and subject to the availability of appropriations, would authorize an
increase in personnel to conduct worksite enforcement
H.R. 98, which was the subject of a May 2005 hearing by the House Judiciary
Committee’s Subcommittee on Immigration, Border Security, and Claims, would
require Social Security cards to include an encrypted machine-readable electronic
identification strip unique to the bearer and a digitized photograph. Under the bill,
new hires would have to present a Social Security card of this type to their
employers, who would use them to verify the worker’s identity and work
authorization. Employment eligibility verification would be conducted by accessing
a database to be established by DHS that would contain DHS and SSA data. H.R.
98 would raise maximum penalties for employers who violate prohibitions on
unlawful employment.
Section 402 of S. 1033/H.R. 2330 would direct SSA to establish a new
employment eligibility confirmation system through which employers would verify
new hires’ identity and work authorization. The new system is to utilize machine-
readable documents containing encrypted electronic information as a central feature.
SSA also would be tasked with designing and maintaining an employment eligibility
database, which would include specified information about work-authorized
noncitizens. As described below in the section on guest workers, S. 1033/H.R. 2330
would establish a new H-5A temporary worker visa. Employers of these workers
would be required to verify their identity and work authorization through the new
database. S. 1033/H.R. 2330 would further direct SSA to develop a plan to phase out
the current I-9 system and place all workers into the new database.
Title III of S. 1438 would make various changes to current verification
requirements. It would require SSA to issue machine-readable, tamper-resistant
Social Security cards. These cards would become the only acceptable documents for
evidencing employment authorization. To establish identity, an individual would
have to provide either a U.S. government-issued identification document containing
a biometric identifier or a state-issued driver’s license or identification document that
conforms with REAL ID Act guidelines. Under S. 1438, participation in the Basic
Pilot program, which would be renamed, would be mandatory, and there would be
sanctions for noncompliance. In addition, S. 1438 would increase monetary penalties
for employer violations.
S. 1917 would rename the Basic Pilot program and make participation
mandatory. Participants in the verification system would be deemed to be in
compliance with the I-9 requirements. S. 1917 would direct DHS to fully integrate
all databases and data systems used in the verification system. Under the bill, the
only acceptable documents for evidencing employment authorization would be a

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CRS-13
social security card or a machine-readable, tamper resistant card issued by the U.S.
government that explicitly authorizes employment. Among its other provisions, S.
1917 would increase monetary penalties for employer violations.
H.R. 3333 would rename the Basic Pilot program and make participation
mandatory, and sanction employers for noncompliance. As under the House-passed
H.R. 4437, employers would be required to verify that current employees, as well as
new hires, are authorized to work. H.R. 3333 would increase monetary penalties for
employer violations. In addition, it contains a number of provisions related to Social
Security accounts and cards.
H.R. 3938 would rename the Basic Pilot program, make participation
mandatory, and sanction employers for noncompliance. At the same time, it
proposes to create a new employment eligibility verification system, essentially
identical to that proposed in H.R. 98, to replace the renamed Basic Pilot program.
The new verification system would be based on an employment eligibility database,
to be established by DHS, containing DHS and SSA data. As explained in the above
discussion of H.R. 98, individuals commencing new employment would be required
to present a Social Security card with an encrypted machine-readable electronic
identification strip and a digitized photograph, which the employer would use to
verify identity and work authorization through the new database. H.R. 3938 also
would increase monetary penalties for employer violations.
Alien Smuggling
Many contend that the smuggling of aliens into the United States constitutes a
significant risk to national security and public safety. Since smugglers facilitate the
illegal entry of persons into the United States, some maintain that terrorists may use
smuggling routes and organizations to enter undetected. In addition to generating
billions of dollars in revenues for criminal enterprises, alien smuggling can lead to
collateral crimes including kidnaping, homicide, assault, rape, robbery, auto theft,
high speed flight, vehicle accidents, identity theft, and the manufacturing and
distribution of fraudulent documents. The main alien smuggling statute (INA §274)
delineates the criminal penalties, asset seizure rules, and prima facie evidentiary
requirements for smuggling offenses.
Several bills in the 109th Congress have provisions concerning alien smuggling.
Among them is H.R. 2744, the FY2006 Agriculture Appropriations bill, which was
signed into law as P.L. 109-97. Section 796 of this law specifies circumstances under
which religious organizations are exempt from criminal penalties related to the
smuggling and harboring of certain aliens, and states that it is not a violation of INA
§274 for a bona fide, nonprofit, religious organization to encourage or allow an
unauthorized alien to work for the religious organization as a volunteer minister or
missionary. Under the provision, the alien must have been a member of the religious
denomination for at least one year and may not be compensated as an employee, but
may be provided room, board, travel, medical assistance, and other basic living
expenses.

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CRS-14
H.R. 4437, as passed by the House, S. 2454, S. 2611/S. 2612, and S.Amdt. 3192
to S. 2454 would rewrite INA §274. Although the bills are similar, they are not
identical in language or in scope. All the bills would broaden the types of acts that
are considered alien smuggling. For example, they would make it a smuggling
offense to transport a person outside the United States knowing or in reckless
disregard of the fact that the person is in unlawful transit from one country to
another, or on the high-seas, and is seeking to illegally enter the United States. S.
2454, S. 2611/S. 2612, and S.Amdt. 3192 to S. 2454 would also provide new
exemptions from criminal liability for persons or organizations providing assistance
to unauthorized aliens on humanitarian grounds, though S. 2454 and the other Senate
bills differ as to the scope of such exemptions (such exemptions are not contained in
current law). House-passed H.R. 4437, in contrast, contains no such exemptions, and
would also remove the current exemption contained in P.L. 109-97 for religious
organizations that encourage certain unauthorized aliens to work for the
organizations as volunteer ministers or missionaries.
In addition, H.R. 4437, S. 2454, S. 2611/S. 2612, and S.Amdt. 3192 to S. 2454
would establish mandatory minimum sentences for those convicted of alien
smuggling, and would enhance penalties for persons carrying firearms during
smuggling offenses. Furthermore, as recommended in a recent Government
Accountability Office report on alien smuggling, all three proposals would amend the
law to allow for the seizure and forfeiture of any property used to commit or facilitate
alien smuggling.19
Other pending bills would variously increase penalties or establish minimum
penalties for alien smuggling (H.R. 255, H.R. 688, H.R. 1320, H.R. 3938, S. 1916,
S. 2061); increase the personnel devoted solely to combating alien smuggling (H.R.
688); and grant S visas20 to aliens outside the United States who have information on
alien smuggling operations (H.R. 255, H.R. 2092).
Detention
Under the INA, there is broad authority to detain aliens while awaiting a
determination about whether the aliens should be removed from the United States.
The law mandates that certain categories of aliens be subject to mandatory detention
(i.e., the aliens must be detained). Aliens subject to mandatory detention include
those arriving without documentation or with fraudulent documentation, those who
are inadmissible or deportable on criminal or national security grounds, those
certified as terrorist suspects, and those who have final orders of deportation. Aliens
19 See GAO-05-305, “Combating Alien Smuggling: Opportunities Exist to Improve the
Federal Response,” May 27, 2005.
20 For more information on S visas see, CRS Report RS21043, Immigration: S Visas for
Criminal and Terrorist Informants, by Karma Ester.

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CRS-15
not subject to mandatory detention may be detained, paroled, or released on bond.
The priorities for detention of these aliens are specified in statute and regulations.21
There are many policy issues surrounding the detention of aliens. Among them
are concerns about the number of aliens subject to mandatory detention and the
justness of mandatory detention, especially as it is applied to asylum seekers arriving
without proper documentation. Some have raised concerns about the length of time
spent in detention by aliens who have been ordered removed. Additionally, the
amount of detention space available to house DHS detainees is a constant issue,
especially since many nondetained aliens fail to appear for their removal hearings or
to depart from the United States after receiving final orders of deportation.
Several bills in the 109th Congress, including H.R. 4437, the Chairman’s mark,
S. 2454, and S. 2611/S. 2612, contain provisions concerning the detention of aliens
in the United States. H.R. 4437, the Chairman’s mark, and S. 2454 would codify and
modify the regulations governing the review of post-removal order detention cases
for aliens who were lawfully admitted. In addition, H.R. 4437 would require that as
of October 1, 2006, all aliens attempting to illegally enter the United States who do
not withdraw their applications for admission and depart immediately or who are not
granted parole, be subject to mandatory detention until the alien is either removed or
granted admission; the Chairman’s mark, as amended, and S. 2611/S. 2612 contain
similar provisions. H.R. 4437 also would authorize and establish the selection
criteria for the Secretary of DHS to contract with private entities to provide
transportation to detention facilities and other locations for aliens apprehended along
the border by CBP, and would require mandatory detention for aliens of street gangs.
The Chairman’s mark and S. 2611/S. 2612 would also direct DHS to acquire or
construct 20 additional detention facilities for aliens with a combined capacity of at
least 10,000 aliens at any time. These bills would direct DHS to consider utilizing
military installations approved for closure for this purpose.
Illegal Presence, Removal, and Exclusion
H.R. 4437, S. 2454, S. 2611/ S. 2612, and the Chairman’s mark would variously
build on past legislative efforts, most recently the REAL ID Act, to tighten current
law in the areas of illegal presence and illegal entry; alien voluntary departure and
removal from the United States; alien exclusion from, or inadmissibility to, the
United States; and judicial review.
Unlawful Presence
Section 203 of H.R. 4437 and §206 of S. 2454 would upgrade the consequences
of illegal presence from a civil offense to a criminal offense. Presently, unlawful
presence is a criminal offense only when an alien has previously been removed or
had departed the United States while a removal order was outstanding. Under H.R.
4437, both unlawful entry and presence would be made into felonies (a first offense
21 For more information on the detention of aliens see, CRS Report RL32369, Immigration-
Related Detention: Current Legislative Issues, by Alison Siskin.

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CRS-16
of the unlawful entry statute is currently a misdemeanor, while subsequent offenses
are felonies), while S. 2454 would make unlawful presence a misdemeanor for first-
time offenses and a felony for subsequent offenses. The bills would further heighten
the criminal and civil penalties for unlawful entry, reentry, and presence when an
alien had previously been convicted of certain crimes. Section 206 of S. 2611/S.
2612 and of S.Amdt. 3192 to S. 2454 would largely do the same, with the notable
exception that they would not criminalize unlawful presence or impose heightened
penalties on such presence if the alien had previously been convicted of certain
crimes (unless the alien was unlawfully present in the U.S. after having been
removed). Although the original draft of the Chairman’s mark contained a provision
to criminalize unlawful presence identical to that contained in S. 2454, this provision
was removed from the version of the mark approved by the Judiciary Committee and
offered as amendment S.Amdt. 3192 to S. 2454.
In addition, under §209 of H.R. 4437 and §206 of S. 2454, S. 2611/ S. 2612,
and the Chairman’s mark (as originally drafted and as contained in S.Amdt. 3192),
unlawful reentry and presence after voluntary departure would be subject to increased
criminal penalties. H.R. 4437, but none of the Senate bills, would establish
mandatory minimum sentence requirements for the crime of reentering the United
States after either having been removed or having departed under a removal order
(§204). It also would enhance the penalties for certain violent crimes and drug
trafficking offenses when committed by an unlawfully present alien (§618).
Voluntary Departure and Removal
Under H.R. 4437, the Chairman’s mark, S. 2454, and S. 2611/S. 2612, the
granting of voluntary departure as relief from being subject to removal would be
reformed to reduce abuse. Among other things, voluntary departure would be
granted only as part of an agreement by the alien. As part of the agreement, the alien
would have to waive any rights to appeal, but could receive a discretionary reduction
of the period of inadmissibility before the alien could apply to reenter the United
States. A subsequent decision to file an appeal would nullify the agreement. The
maximum validity period for permission to depart voluntarily prior to the conclusion
of removal proceedings that have already been initiated would be reduced from 120
days to 60 days, and bond would be required in such cases unless waived as a serious
financial hardship and unnecessary to guarantee departure. The maximum validity
period for permission to depart voluntarily granted upon the conclusion of removal
proceedings would be reduced from 60 days to 45 days. Any failure to depart
voluntarily would result in increased civil penalties and ineligibility for immigration
benefits and certain relief.
In addition, under the bills, aliens under a final order of removal who evade
arrest and removal would be barred from seeking admission prior to removal, and
aliens who fail to comply with or otherwise obstruct a removal order would be barred
from discretionary relief.

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CRS-17
Expedited Removal
H.R. 4437, as passed by the House, and the leading Senate bills (S. 2454, the
Chairman’s mark and S. 2611/S. 2612) would expand expedited removal. More
specifically, these bills would require the DHS Secretary to place any alien who has
not been admitted or paroled, with minor exceptions, into expedited removal if the
alien is apprehended within 100 miles of the land border and 14 days of unauthorized
entry. Canadians, Cubans, and Mexicans would be notable exceptions to the
expansion of this provision.
Denying Entry
Under current law (INA §243(d)), the Secretary of State is required to deny visas
to nationals of countries, when informed by the Attorney General that the country has
denied or delayed accepting its citizens, nationals, or residents whom the United
States ordered removed. H.R. 4437, as passed by the House, would rewrite this
provision to authorize the Secretary of DHS, after consultation with the Secretary of
State, to deny the admission of nationals of countries that deny or delay accepting
their citizens, nationals, or residents whom the United States ordered removed. In
other words, it would shift implementation from visa issuances at consulates abroad
— where reportedly the Attorney General has never invoked §243(d) — to alien
admissions at U.S. ports of entry. If enacted, foreign nationals who have visas but
are from uncooperative countries would be denied admission when they arrive at
ports of entry if the Secretary of DHS so deemed. S. 2611/S. 2612 would authorize,
but not require, the Secretary of DHS to instruct the Secretary of State to deny a visa
to any citizen, subject, national, or resident of a country that has denied or delayed
accepting its citizens whom the United States ordered removed, until the country
accepts its citizens.
Consequences for Terrorist and Criminal Activity
Beyond the REAL ID Act, a number of bills have been introduced in the 109th
Congress aimed at expanding the terrorism-related and criminal grounds for
inadmissibility and deportation and denying certain immigration benefits to aliens
covered by such grounds. The House has passed one of these bills, H.R. 4437.
Provisions in Titles II and VI of H.R. 4437 would modify immigration law relating
to aliens involved in criminal or terrorism-related activity in a number of ways.
Among other things, H.R. 4437 would prohibit persons described in the terrorism-
related grounds for inadmissibility and deportation from being naturalized and
restrict their eligibility for certain immigration benefits, including relief from
removal.22 H.R. 4437 would also expand the criminal grounds for inadmissibility
and deportation (including for alien gang members), prohibit the adjustment of status
of refugees and asylees who have committed aggravated felonies, and expand the
22 For background on the current terrorism-related grounds for inadmissibility and
deportation, along with more detailed discussion of how H.R. 4437 would alter the
terrorism-related provisions of the INA, see CRS Report RL32564, Immigration: Terrorist
Grounds for Exclusion and Removal of Aliens, by Michael John Garcia and Ruth Ellen
Wasem.

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CRS-18
immigration-related and criminal penalties for certain types of document and
immigration fraud.23 Title II of S. 2454, S. 2611/S. 2612, and the Chairman’s mark
(as originally introduced and as reflected in S.Amdt. 3192) contain provisions
generally covering the same matters.
Reduction of Appellate Review
Title VIII of H.R. 4437, Title V of S. 2454, parts of Titles VII and IV of S.
2611/S. 2612, and Title VII of the Chairman’s mark would continue the trend of
streamlining and limiting certain administrative and judicial review procedures.24
These bills are not identical but share certain similar provisions. The proposed
changes generally fall into a few categories: increasing resources; establishing
administrative adjudication procedures statutorily, rather than merely in regulations;
establishing major procedural changes in judicial review to handle the increased
litigation; and procedural clarifications in response to procedural interpretations in
various federal appellate court decisions.
Proposals in the latter two categories include provisions that would amend the
judicial review statute (INA §242) in various ways, including by providing a
screening process under which a single federal appellate judge or circuit justice
would review a case within 60 days of assignment, and a petition for review would
be denied absent the issuance of a certificate of reviewability by the federal appellate
judge. S. 2454 and the Chairman’s mark would consolidate immigration appeals in
the U.S. Court of Appeals for the Federal Circuit. This proposal provoked a strong
negative reaction in some quarters, including from some prominent federal appellate
judges and the Judicial Conference. At the conclusion of the Senate Judiciary
Committee markup in March, Chairman Specter decided to hold the title concerning
immigration litigation reduction in abeyance pending a hearing on the issue on April
3, 2006. The consolidation proposal and some other proposals responding to federal
appellate holdings regarding immigration procedures, including provisions similar
to those in H.R. 4437, have not been included in S. 2611/S. 2612 and have been
replaced in those bills with a provision for a GAO study. It seems likely that, even
if these consolidation and other proposals are not ultimately included in any
immigration legislation enacted this Congress, they would be reintroduced in the
future.
In addition to provisions similar to those in S. 2454 and the Chairman’s mark,
H.R. 4437 alone would amend INA §242 to clarify that the restrictions on judicial
review of denials of discretionary relief would apply to individual determinations
23 For background on the present immigration consequences of criminal activity, as well as
the changes that H.R. 4437 would make to such consequences, see CRS Report RL32480,
Immigration Consequences of Criminal Activity, by Michael John Garcia. For more
particular information on laws concerning immigration-related document fraud, and the
effects that H.R. 4437 would have in this area, see CRS Report RL32657,
Immigration-Related Document Fraud: Overview of Civil, Criminal, and Immigration
Consequences, by Michael John Garcia.
24 For additional information, see CRS Report RL33410, Immigration Litigation Reform, by
Margaret Mikyung Lee.

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CRS-19
made by the Attorney General or Secretary of Homeland Security under the
immigration laws regardless of whether such determinations were made in removal
proceedings and regardless of whether such decisions or actions were guided by
regulatory or other standards. H.R. 4437 would also make issuance of a
nonimmigrant visa subject to a waiver of any right to review of an inadmissibility
determination at a port of entry or to contest removal except for asylum.
S. 2454, S. 2611/S. 2612, and the Chairman’s mark would increase the number
of litigation and adjudication personnel in DHS, the Department of Justice, and the
Administrative Office of the U.S. Courts; and establish procedural guidelines for the
Board of Immigration Appeals (BIA). They would also provide for the appointment,
qualifications, terms, and removal of immigration judges and members of BIA and
the continuation and expansion of a legal orientation program providing information
about immigration court procedures to detainees on a nationwide basis.
Alone among the bills, S. 2611/S. 2612 includes the Fairness in Immigration
Litigation Act, which would limit injunctive relief in immigration-related civil
actions against the Federal Government.
Temporary Immigration
The INA provides for the temporary admission of various categories of foreign
nationals, who are known as nonimmigrants. Nonimmigrants are admitted for a
temporary period of time and a specific purpose. They include a wide range of
visitors, including tourists, foreign students, diplomats, and temporary workers. The
latter group is the subject of major legislation and considerable interest in the 109th
Congress. The main nonimmigrant category for temporary workers is the H visa.
Among the visa classifications in the H visa category are the H-1B visa for
professional specialty workers, the H-2A visa for agricultural workers, and the H-2B
visa for nonagricultural workers. Foreign nationals also may be temporarily admitted
to the United States for work- or business-related purposes under other nonimmigrant
categories, including the B-1 visa for business visitors, the E visa for treaty traders
and investors, and the L-1 visa for intracompany transfers.25
Guest Workers
The H-2A and the H-2B visa programs mentioned above are the two main
programs for temporarily importing low-skilled workers, sometimes referred to as
guest workers. The 109th Congress revised the H-2B program for nonagricultural
workers as part of P.L. 109-13. The H-2B language, added as a Senate floor
amendment and retained, as modified, in the final conference agreement as Title IV
of Division B, was based on S. 352/H.R. 793. For FY2005 and FY2006, these
provisions exempt aliens who have been counted toward the 66,000 annual H-2B cap
in any of the past three years from being counted again. They also cap at 33,000, the
number of H-2B slots available during the first six months of a fiscal year. In
25 For an overview of nonimmigrant admissions, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem.

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CRS-20
addition, they require DHS to submit specified information to Congress on the H-2B
program on a regular basis; impose a new fraud-prevention and detection fee on H-
2B employers; and authorize DHS to impose additional penalties on H-2B employers
in certain circumstances.
Among the proposals to revise the H-2A program for agricultural workers are
bills known as AgJOBS (S. 359/H.R. 884). Among other provisions, these bills
would streamline the process of importing H-2A workers and make changes to
existing H-2A requirements regarding minimum benefits, wages, and working
conditions. They also would establish a legalization program for agricultural workers
who meet specified requirements.
Title I of H.R. 3333 would eliminate all the current “H” visa subcategories,
including the H-2A and H-2B visas, and replace them with a single H visa covering
aliens coming temporarily to the United States to perform skilled or unskilled work.
H visa holders could not change to another nonimmigrant status or adjust to LPR
status in the United States. Under H.R. 3333, the new H visa program could not be
implemented until the Secretary of Homeland Security makes certain certifications
to Congress, including that a congressionally mandated automated entry-exit system
is fully operational.26
Other proposals to create new temporary worker visas have also been introduced
in the 109th Congress. Among them are S. 1033/H.R. 2330 and S. 1438. Titles III
and VII of S. 1033/H.R. 2330, respectively, would establish new H-5A and H-5B
visas. The H-5A visa would cover aliens coming temporarily to the United States
initially to perform labor or services “other than those occupational classifications”
covered under the H-2A or specified high-skilled visa categories. The H-5B visa
would cover certain aliens present and employed in the United States since before
May 12, 2005. S. 1033/H.R. 2330 includes special provisions for H-5A and H-5B
workers to apply to adjust to LPR status.
Title V of S. 1438 would establish a new “W” temporary worker visa under the
INA. The W visa would cover aliens coming temporarily to the United States to
perform temporary labor or service other than that covered under the H-2A or
specified high-skilled visa categories. (S. 1438 would repeal the H-2B category.) In
addition, Title VI of S. 1438 would authorize DHS to grant a new status — Deferred
Mandatory Departure (DMD) status — to certain aliens present in the United States
since July 20, 2004, and employed since before July 20, 2005. Aliens could be
granted DMD status for up to five years. S. 1438 would not provide aliens in W
status or DMD status with any special pathway to LPR status.27
Title IV, Subtitle A, of S. 2611/S. 2612 would establish a new H-2C guest
worker visa. It would cover aliens coming temporarily to the United States to
26 For information on the entry-exit system issue, see CRS Report RL32234, U.S. Visitor and
Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa M. Seghetti and
Stephen R. Viña.
27 For further information and analysis, see CRS Report RL32044, Immigration: Policy
Considerations Related to Guest Worker Programs, by Andorra Bruno.

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CRS-21
perform temporary labor or services other than the labor or services covered under
the H-2A visa or other specified visa categories. The proposed H-2C visa would be
capped at 325,000 the first fiscal year. The bill would establish a process for
adjusting the cap in subsequent fiscal years based on demand for the visas. An H-2C
worker’s initial authorized period of stay would be three years, and could be extended
for an additional three years. H-2C nonimmigrants in the United States could adjust
to LPR status. Petitions for employment-based immigrant visas could be filed by an
H-2C worker’s employer or, if the H-2C worker had maintained H-2C status for a
total of four years, by the worker. Provisions in S. 2611/S. 2612 that would enable
certain unauthorized aliens in the United States to adjust to LPR status are discussed
below.
Professional and Managerial Workers
Much of the recent legislative action on foreign temporary workers in
professional and managerial jobs has focused on fees.28 Title IV of P.L. 108-447, the
Consolidated Appropriations Act for FY2005, requires the Secretary of Homeland
Security to impose a fraud prevention and detection fee of $500 on H-1B
(professional specialty workers) and L (intracompany business personnel) petitioners.
Section 426(b) of the act requires that the H-1B and L fraud prevention and detection
fee be divided equally among DHS, the Department of State (DOS), and the
Department of Labor (DOL) for use in combating fraud in H-1B and L visa
applications filed with DOS, investigating H-1B and L petitions filed with DHS, and
carrying out DOL labor attestation activities.
L Intracompany Visas. H.R. 3648, as ordered reported by the House
Judiciary Committee, would place new requirements on the L nonimmigrant visa
category, which permits multinational firms to transfer top-level personnel to their
locations in the United States for five to seven years. The bill would require the
Secretaries of State and Homeland Security to each charge fees of $1,500 to
employers filing certain visa applications and nonimmigrant petitions for L visas.
These provisions were included in Title V of H.R. 4241, the Deficit Reduction Act
of 2005, as passed by the House. The conference report (H.Rept. 109-362) on S.
1932 (P.L. 109-171), which was renamed the Deficit Reduction Act of 2005, did not
include these L visa provisions. S. 2611/S. 2612 would revise the INA provisions
on the L visa to address certain perceived abuses.
H-1B Visas. On October 20, 2005, the Senate Judiciary Committee approved
compromise language to recapture up to 30,000 H-1B visas that had not been issued
in prior years. An additional fee of $500 would be charged to obtain these recaptured
visas. Also under this compromise, an additional fee of $750 would be charged for
L-1 visas. This language was forwarded to the Senate Budget Committee for
inclusion in the budget reconciliation legislation. S. 1932, as passed by the Senate,
included these provisions in Title VIII. Neither the House-passed budget
28 See CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant
Professional Specialty (H-1B) Workers; and CRS Report RL32030, Immigration Policy for
Intracompany Transfers (L Visa): Issues and Legislation, both by Ruth Ellen Wasem.

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CRS-22
reconciliation bill (H.R. 4241) nor the conference report on S. 1932 (P.L. 109-171),
however, contained these H-1B or fee provisions.
S. 2611/S. 2612 would raise the numerical limit on H-1B visas from 65,000 to
115,000 and would establish a formula by which to calculate future admissions. Like
the Chairman’s mark, S. 1918, and S. 2454, S. 2611/S. 2612 would add a new
exemption from the H-1B annual numerical limit for H-1Bs who have earned an
advanced degree in science, technology, engineering, or math from an accredited
university in the United States. On a related issue, the Chairman’s mark, S. 2454, and
S. 2611/S. 2612 would extend foreign students’ practical training (and F-1 status)
from 12 to 24 months, which could become an attractive alternative to the H-1B visa
for some employers.
Permanent Immigration
In addition to the admission of temporary workers and other temporary visitors,
the INA provides for the admission of foreign nationals to the United States as LPRs.
Four elements underlie U.S. policy on permanent immigration: the reunification of
families, the admission of immigrants with needed skills, the protection of refugees,
and the diversity of admissions by country of origin. Various measures to revise
permanent admissions have been introduced, but only one has been enacted thus far
in the 109th Congress. Some, such as the enacted measure on visas for nurses, are
narrowly targeted at particular aspects of the permanent immigration system. Others,
including S. 1033/H.R. 2330, S. 1438, S. 2454, S. 2611/S. 2612, H.R. 3700, and the
Chairman’s mark would broadly change permanent admissions.29
Recaptured Visa Numbers for Nurses
During Senate floor consideration of the FY2005 Emergency Supplemental
Appropriations bill, an amendment was added to make up to 50,000 permanent
employment-based visas available for foreign nationals coming to work as nurses.
This provision was accepted by the conferees and enacted as §502 of P.L. 109-13,
Division B, Title V.
Recaptured Employment-Based Visa Numbers
On October 20, 2005, the Senate Judiciary Committee approved compromise
language that would, among other things, “recapture” up to 90,000 employment-
based visas that had not been issued to employment-based immigrants in prior years
(when the statutory ceiling of 140,000 visas was not met). An additional fee of $500
would be charged to obtain these recaptured visas. Like the H-1B and fee provisions
discussed above, this language was forwarded to the Senate Budget Committee; it
was included in Title VIII of S. 1932, as passed by the Senate. These provisions were
29 For additional background and analysis, see CRS Report RL32235, U.S. Immigration
Policy on Permanent Admissions, by Ruth Ellen Wasem.

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CRS-23
not included in the House-passed H.R. 4241 or in the conference report on S. 1932
(P.L. 109-171).
Elimination of Diversity Visas
The Security and Fairness Enhancement for America Act of 2005 (H.R. 1219)
would amend the INA to eliminate the diversity visa lottery. The purpose of the
diversity visa lottery is, as the name suggests, to encourage legal immigration from
countries other than the major sending countries of current immigration to the United
States. H.R. 1219 has been marked up by the House Immigration subcommittee.
The provisions of H.R. 1219 have been incorporated into H.R. 4437, as passed by the
House.30 Various Senate bills, notably S. 1438 and S. 2377, would also eliminate the
diversity visa.
S. 1033/H.R. 2330
S. 1033/H.R. 2330 would make significant revisions to the permanent legal
admissions sections of the INA. Specifically, Title VI of the legislation would
remove immediate relatives of U.S. citizens from the calculation of the 480,000
annual cap on family-based visas for LPR status, thereby providing additional visas
to the family preference categories. It also would lower the income requirements for
sponsoring a family member for LPR status from 125% of the federal poverty
guidelines to 100%, and recapture for future allocations those LPR visas that were
unused due to processing delays from FY2001 through FY2005. In addition, it
would increase the annual limit on employment-based LPR visa categories from
140,000 to 290,000 visas, and raise the current per-country limit on LPR visas from
an allocation of 7% of the total preference allocation to 10% of the total preference
allocation (which would be 480,000 for family-based and 290,000 for
employment-based under this bill).
S. 1438
Title X of S. 1438 would make significant changes to the INA provisions on the
diversity visa and permanent employment-based admissions. It would eliminate the
diversity visa. It would reduce the allocation of visas to persons of “extraordinary”
and “exceptional” abilities and persons having advanced professional degrees (i.e.,
first and second preferences), and increase the number of visas to unskilled workers
from a statutory cap of 10,000 annually to a level of 36% of the 140,000 ceiling for
employment-based admissions (plus any other unused employment-based visas).
Also with respect to employment-based immigration, it would recapture for future
allocations those employment-based visa numbers that were unused from FY2001
through FY2005.
30 For more information, see CRS Report RS21342, Immigration: Diversity Visa Lottery,
by Ruth Ellen Wasem and Karma Ester.

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CRS-24
H.R. 3700
Title I of H.R. 3700 would substantially overhaul permanent admissions to the
United States. Among other provisions, it would reduce the worldwide level of
employment-based immigrants from 140,000 to 5,200 annually, and would limit the
5,200 employment-based visas to persons of “extraordinary” and “exceptional”
abilities and persons having advanced professional degrees. In addition, it would
eliminate the family preference visa categories and the diversity visa.
S. 2454 and Chairman’s Mark
Title IV of S. 2454 and Title V of the Chairman’s mark would substantially
increase the number of visas issued to LPRs. Foremost, these bills would no longer
deduct immediate relatives of U.S. citizens from the overall family-sponsored
numerical limit of 480,000. They also would no longer count the derivative family
members of employment-based LPRs as part of the numerical ceiling. The bills
would “recapture” visa numbers from FY2001 through FY2005 in those cases when
the family-based and employment-based ceilings were not reached.
Similar to S. 1033/H.R. 2330, Title IV of S. 2454 and Title V of the Chairman’s
mark would increase the annual limit on employment-based LPR visa categories
from 140,000 to 290,000 visas, and raise the current per-country limit on LPR visas
from an allocation of 7% of the total preference allocation to 10% of the total
preference allocation (which would be 480,000 for family-based and 290,000 for
employment-based under these bills). These proposed increases to the worldwide
ceilings and to the per-country limits would ease the visa wait times that
oversubscribed countries (i.e., China, India, Mexico, and the Philippines) currently
face by substantially increasing their share of the overall ceiling.
The Chairman’s mark and S. 2454 would reallocate family-sponsored and
employment-based immigrant visas. With respect to employment-based visas, they
would shift the allocation of visas from persons of “extraordinary” and “exceptional”
abilities and persons having advanced professional degrees (i.e., first and second
preferences) toward unskilled workers, whose visa allocation would increase from
10,000 to 87,000, plus any unused visas that would roll down from the other
employment-based preference categories. Employment-based visas for certain
special immigrants would no longer be numerically limited.
S. 2611/S. 2612
Title V of S. 2611/S. 2612 would substantially increase legal immigration and
would restructure the allocation of these visas. The bills would no longer deduct
immediate relatives of U.S. citizens from the overall family-sponsored numerical
limit of 480,000. They would increase the annual number of employment-based
LPRs from 140,000 to 450,000 for FY2007 through FY2016, and set the limit at
290,000 thereafter. They also would no longer count the derivative family members
of employment-based LPRs as part of the numerical ceiling. These three specific
statutory changes, if enacted, could potentially double the number of LPRs admitted
over the next decade.

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CRS-25
The bills would further increase overall levels of immigration by reclaiming
family and employment-based LPR visas when the annual ceilings were not met,
FY2001-FY2005. Title V of S. 2611/S. 2612 would raise the current per-country
limit on LPR visas from an allocation of 7% of the total preference allocation to 10%
of the total preference allocation (which would be 480,000 for family-based and
450,000/290,000 for employment-based under this bill).31 Coupled with the proposed
increases in the worldwide ceilings, these provisions would ease the visa wait times
that oversubscribed countries (i.e., China, India, Mexico, and the Philippines)
currently have by substantially increasing their share of the overall ceiling. The bills
also would eliminate the exceptions to the per-country ceilings for certain family-
based and employment-based LPRs.32
LPR Status for Unauthorized Aliens
Some immigration reform bills before the 109th Congress contain highly
controversial provisions to enable certain unauthorized aliens in the United States to
adjust to LPR status. In the case of S. 1033/H.R. 2330, as discussed in the section
on guest workers above, a separate guest worker visa would be established for
unauthorized aliens, who would then be able to adjust to LPR status through the
permanent employment-based immigration system. Other bills, such as S. 2611/S.
2612, would establish legalization mechanisms separate from guest worker programs.
Under Title VI, Subtitle A of S. 2611/S.2612, the Secretary of DHS would adjust the
status of an alien and the alien’s spouse and minor children to LPR status if the alien
meets specified requirements. The alien would have to establish that he or she was
physically present in the United States on or before April 5, 2001; did not depart
during the April 5, 2001-April 5, 2006 period except for brief departures; and was not
legally present as a nonimmigrant on April 5, 2006. Among the other requirements,
the alien would have to establish employment for at least three years during the April
5, 2001-April 5, 2006 period and for at least six years after enactment, and would
have to establish payment of income taxes during that required employment period.
Such adjustments of status would not be subject to numerical limits.
Under S. 2611/S. 2612, aliens who are unable to meet the presence and
employment requirements for adjustment to LPR status but who have been present
and are employed in the United States since January 7, 2004, and meet other
requirements, could apply to DHS for Deferred Mandatory Departure (DMD)
status.33 Eligible aliens would be granted DMD status for up to three years. An alien
in DMD status could apply for immigrant or nonimmigrant status while in the United
States, but would have to depart the country in order to be admitted under such
status. Under S. 2611/S. 2612, the alien could exit the United States and
immediately re-enter at certain land points of entry.
31 The per-country ceiling for dependent states is raised from 2% to 7%.
32 For an analysis of per-country limits and actual admissions by country, see CRS Report
RL32235, U.S. Immigration Policy on Permanent Admissions, by Ruth Ellen Wasem.
33 The DMD provisions in S. 2611/S.2612 differ from those in S. 1438, discussed in the
section on guest workers above.

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H.R. 4437 and S. 2454 do not contain provisions to legalize the status of
unauthorized aliens in the United States.
Immigrant Victims
The INA includes a variety of provisions to assist aliens who have been victims
of specified types of illegal activities, including domestic violence and trafficking.
Many of these provisions were enacted as part of the (1) Violent Crime Control and
Law Enforcement Act of 1994 (P.L. 103-322), which included the original Violence
Against Women Act (VAWA); (2) Victims of Trafficking and Violence Protection
Act of 2000 (VTVPA; P.L. 106-386), which included VAWA 2000; and (3)
Trafficking Victims Protection Reauthorization Act of 2003 (P.L. 108-193).
Battered Aliens
Special INA provisions benefit aliens who have been battered or subjected to
extreme cruelty by their U.S. citizen or LPR spouses or parents. For example, these
provisions establish special procedures and rules for battered aliens with respect to:
petitioning to obtain LPR status; adjusting to LPR status in the United States; and
obtaining relief from removal or deportation.
P.L. 109-162 amends and broadens existing protections for battered immigrants.
It represents a compromise between provisions included in the House-passed H.R.
3402 and the Senate-passed S. 1197. Under current law, battered spouses and
children of citizens or LPRs who meet specified criteria are treated differently than
most other prospective family-based immigrants, who must be the beneficiaries of
immigrant visa petitions filed by their family members. Battered aliens are allowed
to file immigrant visa petitions on their own behalf, which is known as VAWA self-
petitioning. P.L. 109-162 makes self-petitioning available to the battered parents of
citizens. It also makes VAWA self-petitioners whose petitions are approved eligible
for employment authorization, and more generally, allows the Secretary of DHS to
grant work authorization to battered spouses of certain nonimmigrants. Among its
other provisions, P.L. 109-162 places new requirements on the K visa, and
establishes rules and associated penalties for international marriage brokers.
Trafficking Victims
The 109th Congress has enacted two bills with provisions on victims of
trafficking. P.L. 109-164, the Trafficking Victims Protection Reauthorization Act
of 2005 (H.R. 972), authorizes appropriations for existing grant programs under
VTVPA. It also creates several new grant programs, including grants to develop,
expand, or strengthen trafficking victims assistance programs for U.S. citizens and
LPRs, and grants to strengthen law enforcement programs to investigate and
prosecute domestic trafficking involving U.S. citizens and LPRs. In addition, P.L.
109-164 creates a pilot program to establish three residential treatment facilities for
trafficking victims who are minors.
The INA includes a nonimmigrant category, known as T status or the T visa, for
aliens who are victims of severe forms of trafficking in persons. P.L. 109-162 makes

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various changes to the T visa to expand existing protections. Although under current
law there is no time limit on the duration of T status, under regulation it is limited to
three years. P.L. 109-162 authorizes T status for four years, and allows for additional
year-by-year extensions upon certification from selected officials, including state and
local law enforcement, that the alien’s continued presence in the United States is
required to assist in a criminal investigation or prosecution. P.L. 109-162 removes
the requirement that there must be a finding of hardship for family members of the
trafficking victim (T visa recipient) to be given T visas, and allows aliens with T
status to adjust to LPR status, after the shorter of three years or the conclusion of the
investigation or prosecution of the trafficking crime. The act also allows an alien to
change from another nonimmigrant classification to T status, and removes illegal
presence as a reason to deny the change in status.
Other Legislation and Issues
Refugees
The worldwide refugee ceiling for FY2006 is 70,000, with 60,000 of these
numbers allocated among the regions of the world and the remaining 10,000
comprising an “unallocated reserve” to be used if, and where, additional refugee slots
are needed. As of December 30, 2005, actual FY2006 refugee admissions totaled
9,503. Refugee admissions for FY2005 totaled 53,813. Refugee numbers that are
unused in a fiscal year are lost; they do not carry over into the following year.
The “Lautenberg amendment,” first enacted in 1989, requires the Attorney
General (now the Secretary of DHS) to designate categories of former Soviet and
Indochinese nationals for whom less evidence is needed to prove refugee status, and
provides for adjustment to LPR status for certain former Soviet and Indochinese
nationals denied refugee status. P.L. 108-199 amended the Lautenberg amendment
to add a new provision, known as the “Specter amendment,” that directs the Attorney
General to establish categories of Iranian religious minorities who may qualify for
refugee status under the Lautenberg amendment’s reduced evidentiary standard. P.L.
109-102 extends the Lautenberg amendment through FY2006.
The “McCain amendment,” first enacted in 1996, made the adult children of
certain Vietnamese refugees eligible for U.S. refugee resettlement. P.L. 107-185
revised the amendment for FY2002 and FY2003. Among its provisions, this law
enabled adult children previously denied resettlement to have their cases
reconsidered. In the 109th Congress, H.R. 3320 would extend the amendment, as
revised, through FY2007.
Resettlement Funding. For FY2005, Congress appropriated $484.4 million
for the Department of Health and Human Service’s (HHS) Office of Refugee
Resettlement (ORR). For FY2006, P.L. 109-149 includes an appropriation of $575.6
million for ORR programs. This funding, however, like most other FY2006
discretionary appropriations, is subject to a 1% recision enacted as part of the
FY2006 Defense appropriations bill (P.L. 109-148).

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Citizenship and Naturalization
Legislative proposals are in the 109th Congress concerning restrictions on U.S.
citizenship at birth, naturalization reform, and naturalization based on military
service. A desire to eliminate incentives for illegal immigration and concern about
divided national loyalties have led to proposals to restrict birthright citizenship either
by constitutional amendment or by statutory interpretation of constitutional language,
so that persons born in the United States would only become citizens at birth if their
parents were U.S. citizens, lawful permanent residents, or at least lawfully present
in the United States. Measures containing such provisions include S. 2117, H.J.Res.
41, H.J.Res. 46, H.R. 698, H.R. 3700, H.R. 3938, and H.R. 4313. These proposals
vary as to where the line would be drawn concerning the parents’ status. Such
proposals reportedly were submitted to the House Rules Committee for consideration
as floor amendments to H.R. 4437 and to the Senate Judiciary Committee for
consideration as an amendment to the Chairman’s mark, but in the former case, no
such amendments were included in the final rule and in the latter case, apparently no
such amendment was considered.
Concern about divided national loyalties has also motivated legislation to reform
naturalization by restricting dual nationality. Section 1201 of H.R. 4437 would
codify the existing oath of allegiance in the INA (currently the exact wording is
prescribed in regulations pursuant to substantive principles established in the INA).
Section 644(h) of S. 2611/S. 2612 would revise and codify language for the oath of
allegiance. Both of these provisions would require DHS, in cooperation with DOS,
to inform the country in which the new U.S. citizen has a pre-existing nationality that
the citizen has renounced allegiance to that foreign country and has sworn allegiance
to the United States. Bills containing similar provisions and/or others intended to
restrict dual nationality include S. 1087, S. 1815/H.R. 4168, H.R. 688, H.R. 2513,
and H.R. 3938.
In addition to barring terrorists from naturalization as noted in an earlier section,
§609 of H.R. 4437, §204 of S. 2454, §204 of S. 2611/S. 2612, and §204 of the
Chairman’s mark would reform the naturalization process by providing that no
application shall be considered while there is any pending proceeding concerning an
applicant’s inadmissibility, deportability, or rescission of lawful permanent resident
status; and no petition for immigrant status for a person shall be approved if there is
any criminal or civil administrative or judicial proceeding pending that could result
in the sponsor-petitioner’s denaturalization or loss of lawful permanent resident
status. These provisions would also provide that an alien admitted under the INA
for conditional lawful permanent residence shall only be considered lawfully
admitted to permanent residence and to have the conditional period count for
naturalization purposes if the conditionality has been removed; and would restrict
judicial jurisdiction over naturalization delays and judicial review of naturalization
denials. Section 612 of H.R. 4437, §204 of S. 2454, §204 of S. 2611/S. 2612, and
§204 of the Chairman’s mark would bar an alien who had been determined at any
time to have been an alien described in the national security/terrorism/genocide
grounds for inadmissibility/removal from being considered a person of good moral
character for naturalization purposes.

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Sections 642 to 644 of S. 2611/S. 2612 and §§612 and 613 of the Chairman’s
mark would provide resources and establish programs for naturalization and
naturalization education. Section 644(c)(2) of S. 2611/S. 2612 would reduce the
period of required legal residency for naturalization from 5 years to 4 years for lawful
permanent residents who demonstrate fluency in English in accordance with
regulations to be prescribed by DHS in consultation with DOS.
Finally, sections in Title VII of S. 2611/S. 2612 would build on the expansion
of expedited naturalization and other citizenship-related benefits for aliens serving
in the U.S. military that was enacted by Title XVII of P.L. 108-136. Among other
things, S. 2611/S. 2612 would waive the fingerprint requirement for members of the
armed forces who were fingerprinted by DOD upon enlistment if they submit a
naturalization application within 12 months of enlistment. It would provide that
aliens shall not be denied the opportunity to serve in the U.S. armed forces and that
an alien may be granted U.S. citizenship after at least 2 years of honorable and
satisfactory service on active duty and have other requirements waived, if they file
an application, demonstrate English and civics knowledge and good moral character
to their chain of command, and take the oath of allegiance. Similar legislative
proposals include S. 2097, S. 2165, H.R. 661, H.R. 901, H.R. 3018, H.R. 3911, and
H.R. 4533.
Immigration Issues in Free Trade Agreements
Immigration issues often raised in the context of the free trade agreements
(FTAs) include whether FTAs should contain provisions that expressly expand
immigration between the countries as well as whether FTAs should require that the
immigrant-sending countries restrain unwanted migration (typically expressed as
illegal aliens). The question of whether the movement of people — especially
temporary workers — is subsumed under the broader category of “provision of
services” and thus an inherent part of any free trade agreement also arises.
The Australian FTA, signed on May 18, 2004, does not contain any explicit
immigration provisions. However, P.L. 109-13 includes a provision that touches on
the nexus of H-1B visas and FTAs. Specifically, Division B, Title V, §501 of the
law adds 10,500 visas for Australian nationals to perform services in specialty
occupations under a new E-3 temporary visa.
The U.S.-Dominican Republic-Central America Free Trade Agreement
(DR-CAFTA) was signed on August 5, 2004, and implementing legislation was sent
to the U.S. Congress on June 23, 2005. Although DR-CAFTA does not contain any
explicit immigration provisions, migration trends from these nations arise as an
issue.34
34 For complete discussion and legislative tracking of DR-CAFTA, see CRS Report
RL31870, The Dominican Republic-Central America-United States Free Trade Agreement
(DR-CAFTA), by J. F. Hornbeck; and CRS Report RL32322, Central America and the
Dominican Republic in the Context of the Free Trade Agreement (DR-CAFTA) with the
United States, coordinated by K. Larry Storrs. For a more general discussion and analysis,
(continued...)

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Document Fraud
H.R. 4437, S. 2454, S. 2611/S. 2612, and the Chairman’s mark would broaden
and increase penalties for criminal offenses of document fraud and add such offenses
to the criminal grounds for inadmissibility and deportation. Among other things,
they would provide for either the establishment of a new Fraudulent Documents
Center or increased access to the existing one in order to collect and disseminate
information assisting law enforcement officers in identifying fraudulent immigration
and travel documents. Various provisions would amend the existing document fraud
statutes generally or individually to establish that the distribution of fraudulent
documents is a crime; increase the penalties for document fraud; provide for a
uniform statute of limitations for document fraud and other immigration-related
offenses; provide for the forfeiture of any property used to commit an immigration
fraud offense or the proceeds of such an offense; criminalize attempt and conspiracy
to commit immigration fraud; and criminalize schemes to defraud aliens, including
misrepresenting oneself as an attorney in immigration matters. S. 2454, S. 2611/S.
2612 and the Chairman’s mark would include a criminal offense for marriage fraud
and also would increase the number of fraud detection enforcement agents with
regard to worksite enforcement. S. 2611/S. 2612 would provide an exception for
legitimate refugees and asylees who often must use fraudulent documents to escape
persecution in their countries.
Other Legislation Receiving Action

State Criminal Alien Assistance Program (SCAAP). SCAAP provides
reimbursement to state and local governments for the direct costs associated with
incarcerating undocumented criminal aliens. P.L. 109-162 authorizes appropriations
for SCAAP of $750 million for FY2006, $850 million for FY2007, and $950 million
for each fiscal year from FY2008 through FY2011. It also would require that
SCAAP reimbursement funds be used only for correctional purposes.35
The Chairman’s mark, as approved by the Senate Judiciary Committee, included
changes to SCAAP that would require the Secretary of DHS to reimburse states and
localities for costs associated with detaining and processing undocumented criminal
aliens. The costs covered include: indigent defense; criminal prosecution; autopsies;
translators and interpreters; and court costs. The Chairman's mark would authorize
appropriations for these processing costs at $400 million for each fiscal year from
FY2007 through FY2012. Additionally, appropriations for compensation under
SCAAP would be authorized at such sums as necessary for FY2007; $750 million
for FY2008; $950 million for FY2009; and $950 million for FY2010-FY2012. S.
2611/S. 2612 contains SCAAP language identical to the Chairman's mark
34 (...continued)
see CRS Report RL32982, Immigration Issues in Trade Agreements, by Ruth Ellen Wasem.
35 See CRS Report RS21832, Immigration: Frequently Asked Questions on the State
Criminal Alien Assistance Program (SCAAP), by Karma Ester.

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Unaccompanied Alien Children. S. 119, as passed by the Senate, would
create procedures for DHS officers to follow when they encounter an unaccompanied
alien child. It would establish new procedures to make it easier for unaccompanied
alien children to be placed with family members and other individuals and entities,
and would establish conditions for the detention of these children. Among its other
provisions, it would require that unaccompanied alien children have counsel to
represent them in immigration proceedings, and would require the establishment of
a pilot program to study providing guardians ad litem to assist unaccompanied alien
children involved in immigration proceedings.
Special Immigrant Status for Translators. H.R. 2293, as reported by the
House Judiciary Committee, would authorize DHS to grant LPR status as “special
immigrants” to certain nationals of Iraq and Afghanistan who worked with the U.S.
Armed Forces as translators, and their spouses and children. The bill would place an
annual cap of 50 on the number of principal aliens who could be granted special
immigrant status.
Legislation
The following are immigration bills or bills with significant immigration
provisions that have received legislative action in the 109th Congress beyond
hearings. All of these measures are discussed earlier in the report.
P.L. 109-13 (H.R. 1268). Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005. Includes REAL ID
Act. Reported by Appropriations Committee (H.Rept. 109-16) on March 11, 2005.
Passed House on March 16, 2005. Reported by Senate Appropriations Committee
(S.Rept. 109-52) on April 6, 2005. Passed Senate, as amended, on April 21, 2005.
House agreed to conference report (H.Rept. 109-72) on May 5, 2005; Senate agreed
on May 10, 2005. Signed on May 11, 2005.
P.L. 109-97 (H.R. 2744). Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies Appropriations Act, 2006. Includes alien
smuggling provision. Reported by Appropriations Committee (H.Rept. 109-102) on
June 2, 2005. Passed House on June 8, 2005. Reported by Senate Appropriations
Committee (S.Rept. 109-92) on June 27, 2005. Passed Senate, as amended, on
September 22, 2005. House agreed to conference report (H.Rept. 109-255) on
October 26, 2005; Senate agreed on November 10, 2005. Signed on November 3,
2005. Signed on November 10, 2005.
P.L. 109-102 (H.R. 3057). Foreign Operations, Export Financial and Related
Programs Appropriations Act, 2006. Includes refugee provisions. Reported by
Appropriations Committee (H.Rept. 109-152) on June 24, 2005. Passed House on
June 28, 2005. Reported by Senate Appropriations Committee (S.Rept. 109-96) on
June 30, 2005. Passed Senate, as amended, on July 20, 2005. House agreed to
conference report (H.Rept. 109-265) on November 4, 2005; Senate agreed on
November 10, 2005. Signed on November 14, 2005.

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P.L. 109-149 (H.R. 3010). Departments of Labor, Health and Human
Services, and Education, and Related Agencies Appropriations Act, 2006. Includes
provisions on refugee resettlement funding. Reported by Appropriations Committee
(H.Rept. 109-143) on June 21, 2005. Passed House on June 24, 2005. Reported by
Senate Judiciary Committee (S.Rept. 109-103) on July 14, 2005. Passed Senate, as
amended, on October 27, 2005. House disagreed to conference report (H.Rept. 109-
300) on November 17, 2005. House agreed to conference report (H.Rept. 109-337)
on December 14, 2005; Senate agreed on December 21, 2005. Signed on December
30, 2005.
P.L. 109-162 (H.R. 3402). Department of Justice Appropriations
Authorization Act, Fiscal Years 2006 through 2009. Includes provisions on battered
aliens, trafficking victims, and SCAAP. Reported by Judiciary Committee (H.Rept.
109-233) on September 22, 2005. Passed House on September 28, 2005. Passed
Senate, as amended on December 16, 2005. House agrees to Senate amendment on
December 17, 2005. Signed on January 1, 2006.
P.L. 109-163 (H.R. 1815). National Defense Authorization Act for FY2006.
Includes provisions on U.S. Military patrols at the border. Reported by Armed
Services Committee (H.Rept. 109-89) on May 20, 2005. Passed House on May 25,
2005. Passed Senate, as amended, on November 15, 2005. House agreed to
conference report (H.Rept. 109-360) on December 19, 2005; Senate agreed on
December 21, 2005. Signed on January 6, 2006.
P.L. 109-164 (H.R. 972). Trafficking Victims Protection Reauthorization Act
of 2005. Reported by International Relations Committee (H.Rept. 109-317, Part I)
on November 18, 2005, and by Judiciary Committee (H.Rept. 109-317, Part II) on
December 8, 2005. Passed House on December 14, 2005. Passed Senate on
December 22, 2005. Signed on January 10, 2006.
H.R. 1817 (Cox). Department of Homeland Security Authorization Act for
FY2006. Includes provisions on role of state and local law enforcement in
enforcement of immigration law. Reported by Homeland Security Committee
(H.Rept. 109-71, Part I) on May 3, 2005; by Energy and Commerce Committee
(H.Rept. 109-71, Part II) on May 13, 2005; and by Judiciary Committee (H.Rept.
109-71, Part III) on May 13, 2005. Passed House on May 18, 2005.
H.R. 2293 (Hostettler). Amends INA to provide special immigrant status for
aliens serving as translators with the U.S. Armed Forces. Reported by Judiciary
Committee (H.Rept. 109-99) on May 26, 2005.
H.R. 3648 (Sensenbrenner). Amends INA to impose additional fees on
immigration services for intracompany transferees. Ordered to be reported by
Judiciary Committee on September 29, 2005.
H.R. 4312 (King). Border Security and Terrorism Prevention Act of 2005.
Reported by Homeland Security Committee (H.Rept. 109-329, Part I) on December
6, 2005.

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H.R. 4437 (Sensenbrenner). Border Protection, Antiterrorism, and Illegal
Immigration Control Act. Reported by Judiciary Committee (H.Rept. 109-345, Part
I) on December 13, 2005. Passed House, as amended, on December 16, 2005.
S. 119 (Feinstein). Unaccompanied Alien Child Protection Act of 2005.
Reported by Judiciary Committee (without written report) on April 14, 2005. Passed
Senate, as amended, on December 22, 2005.
S. 1197 (Biden). Violence Against Women Act of 2005. Reported by
Judiciary Committee (without written report) on September 12, 2005. Passed Senate,
as amended, on October 4, 2005.

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