Immigration Legislation and Issues in the
111th Congress
Andorra Bruno, Coordinator
Specialist in Immigration Policy
Karma Ester
Information Research Specialist
Chad C. Haddal
Analyst in Immigration Policy
Yule Kim
Legislative Attorney
Margaret Mikyung Lee
Legislative Attorney
Alison Siskin
Specialist in Immigration Policy
Ruth Ellen Wasem
Specialist in Immigration Policy
November 4, 2009
Congressional Research Service
7-5700
www.crs.gov
R40848
CRS Report for Congress
P
repared for Members and Committees of Congress
Immigration Legislation and Issues in the 111th Congress
Summary
The Speaker of the House and the Senate Majority Leader have pledged to take up
comprehensive immigration reform legislation at some point in the 111th Congress. It is unclear
what the components of any immigration reform proposals that Congress may consider will be. In
the past, comprehensive bills have addressed border security, enforcement of immigration laws
within the United States (interior enforcement), employment eligibility verification, temporary
worker programs, permanent admissions and, most controversially, unauthorized aliens in the
United States.
The 111th Congress has considered various immigration issues and has enacted a number of
targeted immigration provisions. It has passed legislation (P.L. 111-8, P.L. 111-9, P.L. 111-68, P.L.
111-83) to extend the life of several immigration programs—the E-Verify electronic employment
eligibility verification system, the Immigrant Investor Regional Center Program, the Conrad State
J-1 Waiver Program, and the special immigrant visa for religious workers—all of which are
currently authorized until September 30, 2012. Among the other subjects of legislation enacted by
this Congress are refugees (P.L. 111-8) and border security (P.L. 111-5, P.L. 111-32).
This report discusses these and other immigration-related issues that have seen legislative action
or are of significant congressional interest. Department of Homeland Security (DHS)
appropriations are addressed in CRS Report R40642, Homeland Security Department: FY2010
Appropriations, and, for the most part, are not covered here.
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Contents
Introduction ................................................................................................................................ 1
Electronic Employment Eligibility Verification ........................................................................... 1
Border Security........................................................................................................................... 2
Resources at Ports of Entry ................................................................................................... 3
Resources Between Ports of Entry......................................................................................... 3
Barriers at the Border ............................................................................................................ 4
Unauthorized Immigration .......................................................................................................... 4
Unauthorized Students .......................................................................................................... 5
U.S. Refugee Program................................................................................................................. 5
Refugee Resettlement Funding.............................................................................................. 6
Special Immigrants ..................................................................................................................... 7
Religious workers ................................................................................................................. 7
Afghan Allies........................................................................................................................ 7
Other Issues and Legislation........................................................................................................ 7
Immigrant Investor Regional Center Program........................................................................ 7
Widow Penalty in Permanent Admissions.............................................................................. 8
Waivers for Foreign Medical Graduates................................................................................. 9
Alien Smuggling ................................................................................................................. 10
Other Legislation Receiving Action..................................................................................... 10
Immigration Relief for Immediate Family of Victims of September 11, 2001................. 10
Victims of Violence and Trafficking .............................................................................. 10
Temporary Professional Specialty (H-1B) Workers........................................................ 11
Contacts
Author Contact Information ...................................................................................................... 11
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Immigration Legislation and Issues in the 111th Congress
Introduction
Comprehensive immigration reform was debated in the 109th and 110th Congresses, but no
comprehensive legislation was enacted.1 The Speaker of the House and the Senate Majority
Leader have pledged to take up immigration reform legislation in the 111th Congress. It is unclear
what the components of any immigration reform proposals that Congress may consider will be. In
the past, comprehensive bills have addressed border security, enforcement of immigration laws
within the United States (interior enforcement), employment eligibility verification, temporary
worker programs, permanent admissions and, most controversially, unauthorized aliens in the
United States. Any consideration of immigration reform legislation will undoubtedly be
complicated by competing legislative priorities and by the economic downturn.
The 111th Congress has already considered some immigration-related measures and has enacted a
number of targeted immigration provisions. It has passed legislation (P.L. 111-8, P.L. 111-9, P.L.
111-68, P.L. 111-83) to extend the life of several immigration programs—the E-Verify electronic
employment eligibility verification system, the Immigrant Investor Regional Center Program, the
Conrad State J-1 Waiver Program, and the special immigrant visa for religious workers—all of
which are currently authorized until September 30, 2012. Among the other subjects of legislation
enacted by this Congress are refugees (P.L. 111-8) and border security (P.L. 111-5, P.L. 111-32).
This report discusses these and other immigration-related issues that have seen legislative action
or are of significant congressional interest.2 Department of Homeland Security (DHS)
appropriations are addressed in a separate report3 and, for the most part, are not covered here.
Electronic Employment Eligibility Verification
Employment eligibility verification and worksite enforcement have been mainstays of recent
debates over comprehensive immigration reform. They are widely viewed as essential
components of a strategy to reduce unauthorized immigration.
Under Section 274A of the Immigration and Nationality Act (INA),4 it is unlawful for an
employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not
authorized to be so employed. Employers are further required to participate in a paper-based (I-9)
employment eligibility verification system in which they examine documents presented by new
hires to verify identity and work eligibility, and to complete and retain I-9 verification forms.
Employers violating prohibitions on unlawful employment may be subject to civil and/or criminal
penalties. Enforcement of these provisions is termed “worksite enforcement.” While all
employers must meet the I-9 requirements, they also may elect to participate in the E-Verify
1 See archived CRS Report RL33125, Immigration Legislation and Issues in the 109th Congress, coordinated by
Andorra Bruno, and archived CRS Report RL34204, Immigration Legislation and Issues in the 110th Congress,
coordinated by Andorra Bruno (hereafter cited as archived CRS Report RL34204).
2 Noncitizen eligibility under pending health care reform legislation is not covered in this report. See CRS Report
R40889, Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation, by Ruth Ellen Wasem.
3 CRS Report R40642, Homeland Security Department: FY2010 Appropriations, coordinated by Jennifer E. Lake and
Chad C. Haddal.
4 Act of June 27, 1952, ch. 477; 66 Stat. 163; codified as amended at 8 U.S.C. §1101 et seq. The INA is the basis of
current immigration law.
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electronic employment eligibility verification system. E-Verify is administered by DHS’s U.S.
Citizenship and Immigration Services (USCIS). Participants in E-Verify electronically verify new
hires’ employment authorization through Social Security Administration (SSA) and, if necessary,
DHS databases.5
At the start of the 111th Congress, E-Verify was scheduled to expire on March 6, 2009. Prompted
by the approaching expiration, the House and Senate considered several provisions related to
electronic employment eligibility verification and enacted a series of extensions. The Omnibus
Appropriations Act, 2009 (P.L. 111-8) extended E-Verify until September 30, 2009, and the
Continuing Appropriations Resolution, 2010 (P.L. 111-68, Division B, §128) extended the
program until October 31, 2009. With the enactment of the Department of Homeland Security
Appropriations Act, 2010 (P.L. 111-83, §547), E-Verify is currently authorized until September
30, 2012. This extension represents a compromise between the House-passed version of the
underlying bill (H.R. 2892), which would have extended the program until September 30, 2011,
and the Senate-passed version which would have made E-Verify permanent.
P.L. 111-83 also includes language on E-Verify that was in both the House-passed and Senate-
passed versions of H.R. 2892 to prohibit any funds made available to the DHS Office of the
Secretary and Executive Management under the act to be used for any new DHS hires who are
not verified through E-Verify (§533). Other E-Verify provisions in the House-passed or Senate-
passed versions of H.R. 2892 were not enacted in P.L. 111-83. The omitted language includes
two Senate-passed provisions. One would have allowed any employer participating in E-Verify to
verify the employment eligibility of existing employees. The other Senate provision would have
directed federal departments and agencies to require, as a condition of contracts they enter into,
that the contractors use E-Verify to verify the employment eligibility of all individuals hired
during the term of the contract to work in the United States and all individuals (whether new hires
or existing employees) assigned to perform work in the United States under the contract.6
Other bills introduced in the 111th Congress would more broadly change existing law on
employment verification. For example, the Secure America Through Verification and
Enforcement Act of 2009 (SAVE Act; H.R. 3308) would make E-Verify permanent and would
phase in a requirement that all employers use it to verify the employment authorization of new
hires and current employees. A similar bill of the same name (S. 1505) has been introduced in the
Senate.
Border Security
Border security provisions have likewise been part of recent comprehensive reform bills. DHS is
charged with protecting U.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
5 See CRS Report R40446, Electronic Employment Eligibility Verification, by Andorra Bruno.
6 A similar DHS rule, applicable as of September 8, 2009, requires certain federal contracts to contain a new clause
committing contractors to use E-Verify to verify that all of the contractors’ new hires, and all employees directly
performing work under federal contracts are authorized to work. See U.S. Department of Defense, General Services
Administration, National Aeronautics and Space Administration, “Federal Acquisition Regulation; FAR Case 2007-
013, Employment Eligibility Verification,” 73 Federal Register 67651-67705, November 14, 2008.
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(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 an important immigration issue for the 111th Congress. There has been much
debate about whether DHS has sufficient resources to fulfill its border security mission. A number
of bills have been introduced that would add resources for Customs and Border Protection (CBP),
the lead agency at DHS charged with securing U.S. borders at and between official ports of entry
(POE). At ports of entry, CBP officers are responsible for conducting immigration, customs, and
agricultural inspections on entering aliens. Between ports of entry, the U.S. Border Patrol (USBP),
a component of CBP, enforces U.S. immigration law and other federal laws along the border. In
the course of discharging its duties, the USBP patrols over 8,000 miles of U.S. international
borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. The
following discussion focuses on key provisions on border resources that have been enacted by the
111th Congress and selected other provisions that are pending.
Resources at Ports of Entry
The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) provides an
emergency supplemental appropriation of $680 million for CBP during FY2009. The funding for
CBP includes $160 million for salaries and expenses, of which $100 million is designated for the
procurement and deployment of nonintrusive inspection technology and $60 million is designated
for the procurement and deployment of tactical communications equipment and radios. The act
includes $420 million for the construction and modification of ports of entry.
In response to the drug-related violence on the Mexican side of the Southwest border, Congress
has appropriated additional resources for border activities. Title VI of the FY2009 Supplemental
Appropriations Act (P.L. 111-32) contains $140 million to support activities along the Southwest
border with Mexico in response to reports of increasing drug-related violence. This funding
includes $40 million for CBP for various activities and $5 million for CBP Air and Marine to
support additional air operations along the Southwest border. Moreover, the FY2010 DHS
Appropriations bill (P.L. 111-83), includes funding for 50 additional CBP Officers and 10 support
positions to enhance the Southwest border outbound operations.
Resources Between Ports of Entry
In addition to providing resources for use at POE, the ARRA includes $100 million for the
deployment of SBInet technology to the border.7 Some legislation in the 111th Congress would
authorize additional increases in USBP resources. P.L. 111-83 funds the hiring of an additional
100 Border Patrol agents (and 23 associated support personnel). Additionally, P.L. 111-83
imposes reporting requirements on the Secretary of Homeland Security to identify “additional
Border Patrol sectors that should be utilizing Operation Streamline programs” and the resources
needed to make the program more effective,8 and to report on improvements of cross-border
7 SBInet is the so-called “virtual fence” currently being installed along the Southwest border of the United States. For
more information, see CRS Congressional Distribution Memorandum “SBInet: Background, Implementation, and
Issues,” by Chad C. Haddal (available upon request).
8 Operation Streamline is a program that brings low-level criminal charges for illegal entry against unauthorized aliens
apprehended in certain sectors along the Southwest border—with exceptions made for some humanitarian cases.
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inspection processes. Finally, the House has passed H.R. 1148, which would direct DHS to
conduct a program in the maritime environment for the mobile biometric identification of
suspected individuals. This program would test the feasibility and cost of expanding DHS
biometric identification capabilities to the maritime environment.
Barriers at the Border
Congress has repeatedly shown interest in the deployment of barriers along the U.S. international
land border.9 In 1996, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which, among other provisions, explicitly gave the Attorney
General broad authority to construct barriers along the border and specified where fencing was to
be constructed. In 2008, Congress included provisions in P.L. 110-161 requiring DHS to construct
reinforced fencing or other barriers along not less than 700 miles of the Southwest border, in
locations where fencing is deemed most practical and effective. In carrying out this requirement,
the Secretary is further directed to identify either 370 miles or “other mileage” along the
Southwest border where fencing would be most practical and effective in deterring smugglers and
illegal aliens, and to complete construction of fencing in identified areas. These requirements
would have been modified by S.Amdt. 1399 to Senate-passed H.R. 2892 (FY2010 DHS
Appropriations bill) to require that DHS construct reinforced fencing to “restrain pedestrian
traffic” along the entire 700 miles of border identified by the Secretary for barrier construction.
This provision, however, was dropped during the conference negotiations.
Unauthorized Immigration
Unauthorized immigration remains a vexing issue for policy makers. The number of unauthorized
aliens living in the United States in early 2008 has been estimated at about 12 million.10 While
many observers believe that the unauthorized alien population is decreasing, the sheer number of
such aliens commands attention and has elicited a range of ideas about the appropriate policy
response. Some legislative proposals for addressing the unauthorized population focus on
enforcement and include provisions on border security, worksite and other interior enforcement,
and employment eligibility verification. H.R. 3308 and S. 1505 in the 111th Congress are
examples of these types of proposals. Other policy makers take a different approach and support
some type of legalization program for unauthorized aliens—which they often term “earned
adjustment”—sometimes in combination with enforcement measures. Legalization programs
were included in some of the comprehensive immigration reform bills considered in the 109th and
110th Congresses, and are included in some measures before the 111th Congress, such as the
similar Senate and House Agricultural Job Opportunities, Benefits, and Security Acts of 2009
(AgJOBS Act; S. 1038, H.R. 2414) and the DREAM Act bills discussed in the next section.
9 See CRS Report RL33659, Border Security: Barriers Along the U.S. International Border, by Chad C. Haddal, Yule
Kim, and Michael John Garcia.
10 U.S. Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant
Population Residing in the United States: January 2008, by Michael Hoefer, Nancy Rytina, and Bryan C. Baker,
September 2008 (estimate of 11.6 million in January 2008); Jeffrey S. Passel and D’Vera Cohn, Trends in
Unauthorized Immigration: Undocumented Inflow Now Trails Legal Inflow, Pew Hispanic Center, October 2, 2008
(estimate of 11.9 million in March 2008).
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Unauthorized Students
Unauthorized alien students compose a subpopulation of the larger unauthorized alien population
in the United States. Legislation commonly referred to as the “DREAM Act” (whether or not a
particular bill carries that name) has been introduced in the past several Congresses to provide
relief to this group in terms of both educational opportunities and immigration status. In the
aftermath of failed efforts to enact comprehensive immigration reform in the 110th Congress,
some supporters of comprehensive reform argued for an incremental approach, in which
components of reform, such as DREAM Act legislation, would be pursued individually.11 An
attempt in the Senate to enact a DREAM Act bill in the 110th Congress (S. 2205) was
unsuccessful.12
Similar, but not identical, DREAM Act bills (S. 729, H.R. 1751)13 have been introduced in the
House and Senate this Congress. Both bills would repeal a provision of current law that restricts
the ability of states to provide postsecondary educational benefits to unauthorized aliens. They
also would enable eligible unauthorized students to adjust to LPR status in the United States
through an immigration procedure known as “cancellation of removal.” Cancellation of removal
is a discretionary form of relief authorized by the INA that an alien can apply for while in
removal proceedings before an immigration judge. If cancellation of removal is granted, the
alien’s status is adjusted to that of an LPR. There would be no limit under either bill on the
number of aliens who could be granted cancellation of removal/adjustment of status.14
U.S. Refugee Program
The admission of refugees to the United States is a perennial immigration issue. Refugee
admission and resettlement are authorized by the INA.15 Under the INA, a refugee is a person
who is outside his or her country and who is unable or unwilling to return because of persecution
or a well-founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Refugees are processed and admitted to the United
States from abroad. The State Department handles overseas processing of refugees, and
DHS/USCIS makes final determinations about eligibility for admission.16
The Foreign Relations Authorization Act, Fiscal Years 2010 and 2011 (H.R. 2410, Division A,
Title II, Subtitle C), as passed by the House, proposes to make various changes to the U.S.
11 Other supporters of comprehensive reform opposed this approach, arguing that it would stymie efforts to enact a
comprehensive bill. For both points of view, see, for example, Fawn Johnson, “Student Immigration Bill May Presage
Other Senate Votes,” October 23, 2007, CongressDailyPM, http://www.national journal.com/congressdaily; and
Michael Sandler, “Even Limited Immigration Measures Appear Off the Table for Now,” October 24, 2007,
http://www.cq.com.
12 See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno
(hereafter cited as CRS Report RL33863).
13 S. 729 is the Development, Relief, and Education for Alien Minors (DREAM) Act of 2009; H.R. 1751 is the
American Dream Act.
14 See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation.
15 The Refugee Act (P.L. 96-212, March 17, 1980) amended the INA to establish procedures for the admission of
refugees to the United States.
16 For additional information on the U.S. refugee program, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy, by Andorra Bruno (hereafter cited as CRS Report RL31269).
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refugee admissions and resettlement program. It would authorize the admission of refugees at the
start of a fiscal year, as specified, in the absence of a timely presidential determination setting the
refugee ceiling for that year. It would direct the Department of State (DOS) to expand the training
of U.S. embassy and consular personnel and nongovernmental organizations to enable them to
refer individuals to the refugee admissions program. It also would require DOS to establish
overseas programs in the English language and in cultural and work orientation for refugees who
have been approved for U.S. resettlement.
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg
amendment,” first enacted in 1989 and regularly extended, 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.
111-8 (Division H, Title VII, §7034(g)) extends the Lautenberg amendment through FY2009.
House and Senate versions of the Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2010, include language to further extend the amendment. Both House-passed
H.R. 3081 (Title VII, §7034(g)) and S. 1434 (Title VII, §7034(f)), as reported by the Senate
Appropriations Committee, would extend the Lautenberg amendment through FY2010.
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. The amendment, as revised, has been regularly
extended. P.L. 110-161 (Division J, §634(f)) extended the amendment through FY2009, and P.L.
111-8 (Division H, Title VII, §7034(d)) extends it through FY2010. House-passed H.R. 3081
(Title VII, §7034(d)) would further extend the amendment through FY2011.
Beyond the formal refugee program, other immigration mechanisms have been established over
the years to facilitate the admission to the United States of foreign nationals who have worked for
or been closely associated with the U.S. government, including the U.S. military. The 111th
Congress has created one such program for refugee-like Afghans as part of P.L. 111-8 (see the
“Special Immigrants” section below).
Refugee Resettlement Funding
The Department of Health and Human Services’ Office of Refugee Resettlement (HHS/ORR),
within the Administration for Children and Families, administers an initial transitional assistance
program for temporarily dependent refugees and Cuban/Haitian entrants. P.L. 110-8 (Division F,
Title II) provided $633.4 million for refugee assistance for FY2009. For FY2010, the President
has requested $740.7 million for refugee assistance. The Departments of Labor, Health and
Human Services, and Education, and Related Agencies Appropriations Act, 2010 (H.R. 3293), as
passed by the House, would provide $715.0 for ORR programs. The version of H.R. 3293
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reported by the Senate Appropriations Committee would provide $730.7 million for these
programs. Needy refugees are also eligible for federal public assistance programs.17
Special Immigrants
The permanent employment-based immigration system consists of five preference categories.18
The fourth preference category is known as “special immigrants.” Over the years, the special
immigrant category has been used to confer immigration benefits on particular groups. There are
various subcategories of special immigrants under current law. The 111th Congress has acted to
extend an existing special immigrant program for religious workers and to create a new one for
certain Afghans employed by, or on behalf of, the U.S. government.
Religious workers
Ministers of religion and religious workers make up the largest number of special immigrants.
Religious work is currently defined as habitual employment in an occupation that is primarily
related to a traditional religious function and that is recognized as a religious occupation within
the denomination. While the INA provision for the admission of ministers of religion is
permanent, the provision admitting religious workers has always had a sunset date. The provision
is currently set to expire on September 30, 2012, in accordance with P.L. 111-83 (§568(a)).
Afghan Allies
P.L. 111-8 (Division F, Title VI) authorizes DHS or DOS, in consultation with DHS, to provide
special immigrant status to certain nationals of Afghanistan. An Afghan is eligible if he or she
was employed by or on behalf of the U.S. government in Afghanistan on or after October 7, 2001,
for not less than one year; provided documented valuable service to the U.S. government; and has
experienced “an ongoing serious threat as a consequence of the alien’s employment by the United
States government.” This special immigrant program is capped at 1,500 principal aliens
(excluding spouses and children) annually for FY2009 through FY2013. It is modeled on a
special immigrant program established for Iraqis in the 110th Congress.19
Other Issues and Legislation
Immigrant Investor Regional Center Program
There is currently one immigrant visa set aside specifically for foreign investors (immigrant
investors) coming to the United States. Immigrant investors comprise the fifth employment-based
17 See CRS Report RL31269, Refugee Admissions and Resettlement Policy.
18 The five categories, in order from first preference to fifth preference, are priority workers; professionals holding
advanced degrees or aliens of exceptional ability; skilled workers, professionals, and unskilled workers; special
immigrants; and employment creation investors. See CRS Report RL32235, U.S. Immigration Policy on
Permanent Admissions, by Ruth Ellen Wasem.
19 See archived CRS Report RL34204.
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preference category, and the visa is commonly referred to as the EB-5 visa. In 1992, a pilot
program was authorized under the EB-5 visa category to achieve the economic activity and job
creation goals of that category by encouraging investment in economic units known as Regional
Centers.20 These Regional Centers were designed to more easily facilitate investment, as well as
target investment toward specific geographic areas. This pilot program has been extended
multiple times, most recently through September 30, 2012, by the Department of Homeland
Security Appropriations Act, 2010 (P.L. 111-83, §548). The Senate-passed version of the act had
included language to permanently reauthorize the EB-5 Regional Center Program but this
language was not included in the conference agreement. On July 22, 2009, the Senate Judiciary
Committee held a hearing to assess the Regional Center Program.21
Widow Penalty in Permanent Admissions
A provision of the FY2010 DHS Appropriations Act (P.L. 111-83, §568(c)) repealed the so-called
“widow penalty.” This penalty was the termination of a pending immigrant relative petition for an
alien spouse and of a related, pending application for LPR adjustment of status or an immigrant
visa, upon the death of the U.S. citizen spouse, when the couple had been married less than two
years. In cases where only the first half of the process had been completed (i.e., the immigrant
relative petition had been approved), the petition could be revoked where the related application
for LPR status had not been granted or where the alien spouse had not been admitted into the
United States on an immigrant visa.22 This penalty resulted from USCIS’s interpretation of the
statutory definition of “immediate relative.” USCIS interpreted the definition to mean that an
alien spouse ceased to be married to a U.S. citizen and to be an “immediate relative” of a U.S.
citizen upon the death of the U.S. citizen spouse.23 Where a couple had been married at least two
years at the time of a U.S. citizen’s death, however, USCIS converted the immigrant petition filed
by a U.S. citizen for an alien spouse into a self-petition by the surviving spouse.24
The new law enables the surviving alien spouse of a deceased U.S. citizen to self-petition for an
immigrant visa/adjustment to LPR status regardless of the length of the marriage as long as the
petition is filed within two years of the U.S. citizen’s death and the surviving alien spouse has not
remarried. USCIS has not yet issued new regulations and guidelines implementing the new law.
USCIS may extend its practice of converting any pending petitions filed by a U.S. citizen spouse
before death into a self-petition for the surviving alien spouse, to include the petitions of
20 §610 of P.L. 102-395. A Regional Center is defined as any economic unit, public or private, engaged in the
promotion of economic growth, improved regional productivity, job creation, and increased domestic capital
investment. For more information on Regional Centers for immigrant investors, see CRS Report RL33844, Foreign
Investor Visas: Policies and Issues, by Chad C. Haddal.
21 U.S. Congress, Senate Committee on the Judiciary, Promoting Job Creation and Foreign Investment in the United
States: An Assessment of the EB-5 Regional Center Program, hearing on S.Amdt. 1407 to H.R. 2892, 111th Cong., 1st
sess., July 22, 2009.
22 8 C.F.R. §205.1(a)(3) provides for automatic revocation where the beneficiary of an immigrant petition for an
immediate relative has not begun his/her journey to the United States (on an immigrant visa) or has not received a final
decision on an LPR application. So if the U.S. citizen spouse died while the alien spouse was in transit to the United
States, the surviving spouse would be admitted as an immigrant into the United States upon arrival.
23 INA §201(b)(2)(A)(i) defines “immediate relative” (codified at 8 U.S.C. §1151(b)(2)(A)(i)). Under 8 C.F.R.
§205.1(a)(3)(i)(C)(2), an immigrant petition for an alien spouse is automatically revoked upon the death of the U.S.
citizen, but may be reinstated at the discretion of the agency if the alien spouse requests humanitarian reinstatement of
the immigrant petition and has a qualified relative who agrees to be a substitute sponsor.
24 See 8 C.F.R. §§204.2(i)(1)(iv), 205.1(a)(3)(i)(C)(1), and USCIS Adjudicator’s Field Manual §21.2(a)(4).
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previously ineligible alien spouses who were married for less than two years. An alien whose U.S.
citizen spouse died before the DHS Appropriations Act was enacted, and who was previously
ineligible to self-petition because of the widow penalty, can now self-petition as long as the
petition is filed within two years of October 28, 2009,25 and the alien has not remarried.
In addition to repealing the widow penalty, the new law (P.L. 111-83, §568(d)) provides similar
relief for surviving relatives who were the beneficiaries or derivative beneficiaries of pending or
approved petitions for an immigrant visa/adjustment to LPR status immediately before the death
of the relative who was the petitioner or primary beneficiary of the petition. Instead of being
terminated or revoked, petitions will be adjudicated despite the death of the relative, as long as
the surviving relatives resided in the United States at the time of the death and have continued to
reside in the United States. Surviving relatives include the spouse, parent, or minor child of a U.S.
citizen; other relatives of a U.S. citizen/LPR eligible for family preference immigrant visas;
dependents/derivative beneficiaries of an employment-based immigrant; refugee or asylee
relatives; and a dependent/derivative beneficiary of a T (trafficking) or U (crime victim) visa non-
immigrant.
Prior to the repeal of the widow penalty, several pending lawsuits, including a class-action
lawsuit,26 challenged the widow penalty. A case arising in the Third Circuit resulted in a pending
petition for certiorari by the U.S. Supreme Court.27 It appears that the repeal has mooted these
pending cases. In response to the litigation, USCIS issued a memorandum deferring further
agency action (including deportation proceedings) for up to two years28 on widow-penalty cases
outside the jurisdiction of the First, Sixth, and Ninth Circuits, which had struck down the widow
penalty. Although the memorandum states that it remains in effect until further notice, it
apparently has been superseded by the repeal of the widow penalty. However, it may remain in
effect until the agency issues new regulations and guidelines regarding the conversion of pending
cases into self-petitions.
Waivers for Foreign Medical Graduates
Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in
order to receive graduate medical education and training. Such FMGs must return to their home
countries after completing their education or training for at least two years before they can apply
for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of the
foreign residency requirement. States are able to request waivers on behalf of FMGs under a
temporary program, known as the Conrad State Program. Established by a 1994 law, this program
initially applied to aliens who acquired J status before June 1, 1996. The Conrad State Program
has been extended several times, most recently by P.L. 111-83 (§568(b)), which makes the
program applicable to aliens who acquire J before September 30, 2012.
25 This is the date on which the DHS Appropriations Act was enacted, eliminating the widow penalty.
26 Hootkins v. Chertoff, No. CV 07-5696 CAS (MANx), 2009 U.S. Dist LEXIS 3243, 2009 WL 57031 (C.D. Cal. Jan.
6, 2009) (order granting plaintiffs’ motion for class certification of a class within the Ninth Circuit, but not nationwide).
27 Robinson v. Napolitano, No. 09-94, petition for cert. filed (U.S. July 23, 2009).
28 Donald Neufeld, Acting Associate Director, Office of Domestic Operations, USCIS, Guidance Regarding Surviving
Spouses of Deceased U.S. Citizens and their Children, September 4, 2009, http://www.ssad.org/deferredaction.html.
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Immigration Legislation and Issues in the 111th Congress
Alien Smuggling
Some contend that the smuggling of aliens into the United States constitutes a significant risk to
national security and public safety. Because smugglers facilitate the illegal entry of persons into
the United States, some maintain that terrorists may use existing smuggling routes and
organizations to enter undetected. In addition to generating billions of dollars in revenue for
criminal enterprises, alien smuggling can lead to other collateral crimes.29 The main alien
smuggling statute (INA §274) delineates the criminal penalties, asset seizure rules, and prima
facie evidentiary requirements for smuggling offenses.
The Alien Smuggling and Terrorism Prevention Act of 2009 (H.R. 1029), which has been passed
by the House, would amend the alien smuggling provisions of both the INA and Title 18 of the
U.S. Code. It would essentially expand the scope of activity prohibited under INA §274. It would,
for example, add a provision to INA §274 that would affirmatively assert extraterritorial
jurisdiction for acts of alien smuggling that occur outside the United States. This proposal would
also heighten the criminal penalties for various smuggling offenses. Furthermore, this bill would
alter §2237 of Title 18 of the U.S. Code by increasing the penalties for individuals piloting a
maritime vessel who fail to heed the orders of a federal law enforcement officer if the offense is
committed in the course of violating INA §274 or certain other provisions related to human
trafficking.
Other Legislation Receiving Action
Immigration Relief for Immediate Family of Victims of September 11, 2001
The September 11 Family Humanitarian Relief and Patriotism Act of 2009 (H.R. 3290), as
ordered reported by the House Judiciary Committee, would enable certain spouses and children of
aliens who died as a direct result of the September 11 terrorist attacks to adjust to LPR status.
These adjustments of status would not count against the numerical limits in the INA.
Victims of Violence and Trafficking
The Improving Assistance to Domestic and Sexual Violence Victims Act of 2009 (S. 327) would
amend the Violence Against Women Act of 1994 and the Omnibus Crime Control and Safe
Streets Act of 1968 to expand victim protections. As reported by the Senate Judiciary Committee,
the bill includes provisions related to T nonimmigrants (victims of severe forms of trafficking)
and U nonimmigrants (individuals who have experienced substantial physical or mental abuse as
a result of having been victims of certain criminal activities).30
29See, for example, U.S. Government Accountability Office, Combating Alien Smuggling: Opportunities Exist to
Improve the Federal Response, GAO-05-305, May 27, 2005, http://www.gao.gov.
30 For information on immigration-related trafficking issues, see CRS Report RL34317, Trafficking in Persons: U.S.
Policy and Issues for Congress, by Liana Sun Wyler, Alison Siskin, and Clare Ribando Seelke.
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Immigration Legislation and Issues in the 111th Congress
Temporary Professional Specialty (H-1B) Workers
P.L. 111-5 includes a provision (Division A, Title XVI, §1611) that requires H-1B employers
receiving Troubled Asset Relief Program (TARP) funding to comply with the more rigorous labor
market rules of H-1B dependent companies.31 This provision is scheduled to sunset in February
2011.
Author Contact Information
Andorra Bruno, Coordinator
Margaret Mikyung Lee
Specialist in Immigration Policy
Legislative Attorney
abruno@crs.loc.gov, 7-7865
mmlee@crs.loc.gov, 7-2579
Karma Ester
Alison Siskin
Information Research Specialist
Specialist in Immigration Policy
kester@crs.loc.gov, 7-3036
asiskin@crs.loc.gov, 7-0260
Chad C. Haddal
Ruth Ellen Wasem
Analyst in Immigration Policy
Specialist in Immigration Policy
chaddal@crs.loc.gov, 7-3701
rwasem@crs.loc.gov, 7-7342
Yule Kim
Legislative Attorney
ykim@crs.loc.gov, 7-9138
31 For further discussion, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and
Protections, by Ruth Ellen Wasem.
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