Immigration Legislation and Issues in the
112th Congress
Andorra Bruno, Coordinator
Specialist in Immigration Policy
January 12, 2012
Congressional Research Service
7-5700
www.crs.gov
R42036
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Immigration Legislation and Issues in the 112th Congress
Summary
Despite President Obama’s calls for a national conversation on immigration reform, immigration
has not been a front-burner issue for the 112th Congress. The 112th Congress, however, has taken
legislative action on some measures containing provisions on a range of immigration-related
topics. The Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-
10) terminated a special refugee provision known as the Lautenberg amendment. This amendment
was subsequently re-enacted for FY2012 by the Consolidated Appropriations Act, 2012 (P.L. 112-
74). P.L. 112-74 also contains provisions on border security and other issues. P.L. 112-58, a
narrow immigration law, concerns military service-based immigration benefits.
The House has passed the Fairness for High-Skilled Immigrants Act of 2011 (H.R. 3012), which
would make changes to permanent employment-based and family-based admissions. It also has
passed legislation to reauthorize the H-1C temporary worker category for nurses coming to work
in medically underserved areas in the United States (H.R. 1933).
In other action on immigration-related legislation, the House Judiciary Committee has reported or
ordered reported bills on electronic employment eligibility verification (H.R. 2885), immigrant
detention (H.R. 1932), visa security (H.R. 1741), and the diversity visa (H.R. 704). Both the
House Foreign Affairs Committee and the Senate Judiciary Committee have reported bills on
victims of trafficking (H.R. 2830, S. 1301), and the House Natural Resources Committee has
reported a bill concerning foreign residents of the Commonwealth of the Northern Mariana
Islands (CNMI), a U.S. territory in the Pacific. In addition, House and Senate committees and
subcommittees have held hearings on a number of immigration-related issues.
This report discusses immigration-related issues that have received legislative action or are of
significant congressional interest in the 112th Congress. Department of Homeland Security (DHS)
appropriations are addressed in CRS Report R41982, Homeland Security Department: FY2012
Appropriations, and, for the most part, are not covered here.
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Immigration Legislation and Issues in the 112th Congress
Contents
Introduction...................................................................................................................................... 1
Border Security................................................................................................................................ 1
At Ports of Entry........................................................................................................................ 2
Between Ports of Entry.............................................................................................................. 3
Border Patrol Staffing ......................................................................................................... 3
Border Surveillance and Technology .................................................................................. 3
Tactical Infrastructure and Border Fencing......................................................................... 4
Border Enforcement Security Task Force (BEST) Initiative............................................... 4
Activities on Federal Lands and Waivers of Environmental Laws ..................................... 5
Electronic Employment Eligibility Verification .............................................................................. 5
Preemption of State and Local Employment-Verification Measures......................................... 7
Immigrant Detention........................................................................................................................ 8
Visa Security.................................................................................................................................... 9
Per-country Limits on Permanent Admissions .............................................................................. 10
Diversity Visas............................................................................................................................... 12
Foreign Temporary Nurses ............................................................................................................ 12
U.S. Refugee Program ................................................................................................................... 13
Other Issues and Legislation.......................................................................................................... 14
Secure Communities and the Criminal Alien Program............................................................ 14
State Criminal Alien Assistance Program................................................................................ 15
State and Local Immigration Measures ................................................................................... 15
Limits on Executive Branch Discretion................................................................................... 16
Victims of Trafficking ............................................................................................................. 17
Immigrant Investors................................................................................................................. 18
Foreign Temporary Agricultural Workers................................................................................ 18
Unauthorized Students............................................................................................................. 19
Birthright Citizenship .............................................................................................................. 20
Commonwealth of the Northern Mariana Islands ................................................................... 21
Professional Foreign Temporary Employees........................................................................... 22
Other Legislation Receiving Action ........................................................................................ 22
Military Service-Based Immigration Benefits .................................................................. 22
Wage Requirements for H-2B Temporary Employment ................................................... 23
Contacts
Author Contact Information........................................................................................................... 24
Congressional Research Service
Immigration Legislation and Issues in the 112th Congress
Introduction
Despite President Obama’s calls for a national conversation on immigration reform and stated
commitment to pursue such reform, immigration has not been a front-burner issue for the 112th
Congress. Unlike in some past years, there has been little discussion in this Congress of
comprehensive immigration reform legislation, which typically has encompassed border security,
employment eligibility verification, temporary worker programs, permanent admissions, and
unauthorized aliens, among other issues.
The 112th Congress has, however, taken legislative action on some immigration-related measures.
For example, the Department of Defense and Full-Year Continuing Appropriations Act, 2011
(P.L. 112-10) included a provision terminating a special refugee provision known as the
Lautenberg amendment. This amendment was subsequently re-enacted for FY2012 by the
Consolidated Appropriations Act, 2012 (P.L. 112-74). P.L. 112-74 also contains border security
provisions and limited language on other immigration issues, such as employment eligibility
verification and the H-2B temporary worker visa. P.L. 112-58 concerns military service-based
immigration benefits. Among the other subjects of immigration-related legislation before the
112th Congress are immigrant detention (H.R. 1932), permanent family-based and employment-
based admissions (H.R. 3012), diversity visas (H.R. 704), foreign temporary nurses (H.R. 1933),
and visa security (H.R. 1741).
This report discusses these and other immigration-related issues that have received legislative
action or are of significant congressional interest in the 112th Congress. Department of Homeland
Security (DHS) appropriations are addressed in a separate report1 and, for the most part, are not
covered here.
Border Security
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 (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.
At ports of entry, U.S. Customs and Border Protection’s (CBP) Office of Field Operations is
responsible for conducting immigration, customs, and agricultural inspections of travelers seeking
admission to the United States. Between ports of entry, CBP’s border patrol is responsible for
enforcing U.S. immigration law and other federal laws along the border and for preventing
unlawful entries into the United States. In the course of discharging its duties, the border patrol
patrols 8,500 miles of U.S. international borders with Mexico and Canada and the coastal waters
around Florida and Puerto Rico.
1 CRS Report R41982, Homeland Security Department: FY2012 Appropriations, coordinated by William L. Painter
and Jennifer E. Lake.
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Border security has been an important issue for the last several Congresses, with much of the
debate focused on whether DHS has sufficient resources to fulfill its border security mission.
Some Members of Congress have argued that Congress should not consider other reforms to the
immigration system, including any proposed legalization provisions or changes to the family- or
employment-based visas systems, until DHS is better able to secure the border. With
apprehensions of unauthorized immigrants at a 42-year low, administration officials have argued
that significant progress has been made at the border, though continued investments are needed.2
The following discussion focuses on key border-related provisions that have been considered by
the 112th Congress and may be considered in the future concerning staffing at ports of entry and
enforcement activities between ports of entry, including on federal lands. Some of these issues are
debated through the DHS appropriations process.3 The House passed its FY2012 DHS
appropriations bill (H.R. 2017) in June 2011. The Senate Appropriations Committee reported its
version of the bill in September 2011. Both the House and Senate Appropriations Committees
issued written reports on the bill. The full Senate then used H.R. 2017 as a vehicle to pass a short-
term FY2012 continuing resolution (P.L. 112-33) to fund DHS and several other agencies. Other
FY2012 continuing resolutions followed until enactment of the Consolidated Appropriations Act,
2012 (P.L. 112-74) in December 2011, which appropriates funds for DHS and other agencies for
the remainder of FY2012.
At Ports of Entry
The original House-passed FY2012 DHS appropriations bill (H.R. 2017) supported the
Administration’s request to fund 300 additional CBP officers at new and expanded ports of entry,
increase funding for canine units at ports of entry, expand the Immigration Advisory Program
from 9 to 13 overseas airports,4 and add 45 CBP officers and 20 analysts to the National Targeting
Center.5 The Senate Appropriations Committee, in its report on H.R. 2017, also supported
Administration requests to fund these programs.6 Additional bills have been proposed to add up to
5,000 additional CBP officers at POEs, along with support staff, and to make additional
investments in port infrastructure.7
The House and Senate Appropriations Committee reports on the FY2012 DHS appropriations bill
specified how to allocate resources for CBP. For example, while both committees supported the
2 See, for example, Testimony of Department of Homeland Security Secretary Janet Napolitano, U.S. Congress, Senate
Committee on Homeland Security and Governmental Affairs, Securing the Border: Progress at the Federal Level,
hearing, 112th Cong., 1st sess., May 4, 2011.
3 For a fuller discussion of the DHS appropriations process, see CRS Report R41982, Homeland Security Department:
FY2012 Appropriations, coordinated by William L. Painter and Jennifer E. Lake.
4 The Immigration Advisory Program deploys CBP officers to overseas airports to prevent terrorists and improperly
documented passengers from boarding U.S.-bound aircraft.
5 The National Targeting Center provides advanced targeting, research, and coordination among numerous law
enforcement and intelligence agencies in support of CBP’s anti-terrorism mission with respect to passenger and cargo
screening. See U.S. Congress, House Committee on Appropriations, Subcommittee on Homeland Security, Department
of Homeland Security Appropriations Bill, 2012, report to accompany H.R. 2017, 112th Cong., 1st sess., H.Rept. 112-
91, May 26, 2011, p. 24 (hereafter cited as House Committee on Appropriations Report on H.R. 2017).
6 U.S. Congress, Senate Committee on Appropriations, Subcommittee on Homeland Security, Department of Homeland
Security Appropriations Bill, 2012, report to accompany H.R. 2017, 112th Cong., 1st sess., S.Rept. 112-74, September 7,
2011, p. 30 (hereafter cited as Senate Committee on Appropriations Report on H.R. 2017).
7 See, for example, Putting Our Resources Toward Security (PORTS) Act (H.R. 1561).
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Administration’s request for additional CBP officers at new and expanded ports, the House also
directed the Administration to consider ways to reduce CBP staffing requirements through greater
automation, segmentation of high- and low-risk travelers and trade, and technology investments.8
The committees also recommended that CBP devote additional resources to Automated Targeting
Systems and the National Targeting Center to enhance passenger and cargo targeting efforts.9
Between Ports of Entry
Between ports of entry, congressional attention in recent years has focused on border patrol
staffing, surveillance technology, and fencing and other physical barriers.10 The House-passed
version of the FY2012 DHS appropriations bill and the House and Senate Appropriations
Committee reports included related provisions, and each of these topics may receive additional
attention in the 112th Congress, as discussed below. Congress may also consider proposals to
establish a formal border enforcement task force, and to broaden DHS authority to conduct
enforcement activities on federal lands and waive environmental and other regulations.
Border Patrol Staffing
With ongoing support from Congress, DHS has substantially increased border patrol staffing
along the southwest and northern borders over the last decade, with total border patrol staffing
increasing from 9,821 in FY2001 to 21,370 projected for FY2012, including 1,000 border patrol
agents added by the FY2010 Border Security Supplemental (P.L. 111-230) and funded again in
P.L. 112-74.11 A number of bills have been proposed in the 112th Congress to authorize further
growth in the border patrol and/or to direct the Department of Defense (DOD) to deploy National
Guard troops to the southwest border.12 Nonetheless, given Congress’s interest in fiscal austerity,
questions may arise about the cost effectiveness of CBP’s enforcement efforts based on statistics
that go beyond DHS’s traditional measure of enforcement outcomes (i.e., apprehensions) to
include “better quantification of the denominators—the number of illegal crossers and volume of
contraband coming across the border.”13
Border Surveillance and Technology
For several years, Congress has supported a series of DHS programs aimed at achieving “border
situational awareness.” Through these programs, CBP agents track movement in border areas,
identify and classify (i.e., prioritize) illegal entries, correlate entries with the positions of nearby
agents, and use this information to make tactical interdiction decisions. DHS’s primary effort to
8 House Committee on Appropriations Report on H.R. 2017, pp. 27-28.
9 Ibid., p. 25; Senate Committee on Appropriations Report on H.R. 2017, p. 42.
10 For a fuller discussion of border enforcement between ports of entry, see CRS Report R42138, Border Security:
Immigration Enforcement Between Ports of Entry, by Marc R. Rosenblum.
11 U.S. Border Patrol, Border Patrol Agent Staffing by Fiscal Year, http://www.cbp.gov/linkhandler/cgov/
border_security/border_patrol/usbp_statistics/staffing_92_10.ctt/staffing_92_10.pdf; U.S. Department of Homeland
Security, Congressional Budget Justification FY2012, p. CBP S&E – 66.
12 See, for example, National Guard Border Enforcement Act (H.R. 152) and Secure America Through Verification and
Enforcement (SAVE) Act of 2011 (H.R. 2000).
13 House Committee on Appropriations Report on H.R. 2017, p. 33.
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provide such an integrated surveillance system between 2006 and 2011 was known as SBInet. But
cost overruns, technical problems, and scheduling delays led the agency to terminate the SBInet
contract in January 2011 in favor of a new Arizona Border Technology Plan that relies on a
broader mix of off-the-shelf surveillance technology and continued investment in SBInet-style
integrated surveillance towers.14 In congressional reports on H.R. 2017, House and Senate
appropriators expressed frustration with delayed implementation of border technology programs.
P.L. 112-74 cuts funding for border security fencing and technology relative to FY2011 and the
Administration’s FY2012 budget estimate, and withholds $60 million until DHS submits a
detailed expenditure plan.15 Recent Congresses have also supported DHS’s use of surveillance
aircraft, including unmanned aerial systems (UASs), and several bills in the current Congress
would authorize additional collaboration between DHS and DOD on aerial surveillance.16
Tactical Infrastructure and Border Fencing
Since Congress passed the Secure Fence Act of 2006 (P.L. 109-367), DHS has installed a total of
over 400 miles of pedestrian fencing and vehicle barriers along the southwest border. As of
October 2011, DHS reports 351 miles of pedestrian fencing and 299 miles of vehicle fencing in
place along the southwest border. This represents 99.8% of the 651 miles of total fencing and
barriers that CBP reportedly plans to install,17 and 92.9% of the 700 miles of fencing and barriers
specified by Congress in the Consolidated Appropriations Act, 2008 (P.L. 110-161, Div. E).18
Several pieces of legislation introduced in the 112th Congress would authorize or require
additional fencing and barriers.19
Border Enforcement Security Task Force (BEST) Initiative
DHS’s U.S. Immigration and Customs Enforcement (ICE) has partnered with federal, state, local,
and foreign law enforcement in a program known as the Border Enforcement Security Task Force
(BEST) initiative. The BEST initiative fosters coordination among law enforcement officials in
border communities through of a series of multi-agency teams developed to identify, disrupt, and
dismantle criminal organizations posing significant threats to border security. H.R. 915, as
reported by the House Homeland Security Committee, would establish a formal BEST program
14 Testimony of U.S. Customs and Border Protection Assistant Commissioner Mark S. Borkowski, U.S. Congress,
House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Strengthening the Border:
Finding the Right Mix of Personnel, Infrastructure and Technology, hearing, 112th Cong., 1st sess., March 15, 2011.
15 The House Committee recommended $500 million for border security fencing, infrastructure, and technology—$74
million below the FY2011 level and $28 million below the Administration’s request; see House Committee on
Appropriations Report on H.R. 2017, pp. 41-43. H.R. 2017, as passed by the House, would provide $500 million for
these purposes. The Senate Committee recommended $400 million for fencing, infrastructure, and technology; see
Senate Committee on Appropriations Report on H.R. 2017, pp. 43-44. P.L. 112-74 includes $400 million for border
fencing, infrastructure, and technology.
16 See, for example, Border Security Enforcement Act of 2011 (H.R. 1507/S. 803) and SAVE Act (H.R. 2000).
17 CBP Office of Legislative Affairs communication with CRS, October 6, 2011.
18 Section 564 of P.L. 110-161 requires DHS to install not less than 700 miles of border fencing, but also specifies that
DHS is not required to install fencing in any location in which “the Secretary determines that the use or placement of
such resources is not the most appropriate means to achieve and maintain operational control over the international
border at such location.”
19 See, for example, Unlawful Border Entry Prevention Act of 2011 (H.R. 1091) and Border Security Enforcement Act
(H.R. 1507/S. 803).
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along these lines within DHS. The bill would authorize funding for the BEST program for
FY2012-FY2016 and would require annual reports on the program’s effectiveness.
Activities on Federal Lands and Waivers of Environmental Laws
Over 800 miles of the southwest border and over 1,000 miles of the northern border consist of
national forests and parks and other federal lands. The 112th Congress has held hearings on
challenges associated with immigration enforcement on federal lands.20 Historically, these
challenges have included jurisdictional conflicts between the border patrol and agencies within
the Departments of the Interior (DOI) and Agriculture (USDA) that are responsible for law
enforcement on federal borderlands,21 and lawsuits filed under environmental laws and
regulations that have blocked or delayed fence construction.
Administration officials report that recent memoranda of agreement among DHS, DOI, and
USDA have led to greater cooperation with respect to immigration enforcement on federal
lands,22 and legislation passed between 1996 and 2006 gave DHS broad authority to waive
environmental statutes and other requirements that might otherwise delay construction.23
Nonetheless, a recent GAO report recommended that additional steps be taken to improve
information sharing and interagency communication.24 Legislation has been introduced in the
112th Congress that would waive application of certain environmental laws to border enforcement
activities on lands within 100 miles of the border and would allow DHS to conduct certain
security activities on federal lands without permission from DOI or USDA, including routine
motorized patrols and deployment of temporary tactical infrastructure.25
Electronic Employment Eligibility Verification
Employment eligibility verification is receiving attention in the 112th Congress. Several related
bills have been introduced, including the Legal Workforce Act (H.R. 2885), which was ordered
reported by the House Judiciary Committee in September 2011. An earlier version of this bill
(H.R. 2164) was the subject of a hearing by the House Judiciary Committee’s Subcommittee on
Immigration Policy and Enforcement in June 2011. Employment eligibility verification and the
20 See, for example, U.S. Congress, House Committee on Natural Resources, Subcommittee on National Parks, Forests
and Public Lands and House Committee on Oversight and Government Reform, Subcommittee on National Security,
Homeland Defense, and Foreign Operations, The Border: Are Environmental Laws and Regulation Impeding Security
and Harming the Environment?, hearing, 112th Cong., 1st sess., April 15, 2011.
21 See, for example, U.S. Government Accountability Office (GAO), Border Security: Additional Actions Needed to
Better Ensure a Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177, November 2010,
http://www.gao.gov/new.items/d11177.pdf.
22 Testimony of U.S. Customs and Border Protection Deputy Chief Ronald Vitiello, U.S. Congress, House Committee
on Natural Resources, Subcommittee on National Parks, Forests, and Public Lands, The Border: Are Environmental
Laws and Regulations Impeding Security and Harming the Environment?, hearing, 112th Cong., 1st sess., April 15,
2011.
23 §102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208, Div.
C); §102 of the REAL ID Act of 2005 (P.L. 109-13, Div. B).
24 U.S. Government Accountability Office (GAO), Border Security: Additional Actions Needed to Better Ensure a
Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177, November 2010,
http://www.gao.gov/new.items/d11177.pdf.
25 See, for example, National Security and Federal Lands Protection Act (H.R. 1505).
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related issue of worksite enforcement are widely viewed as essential components of a strategy to
reduce unauthorized immigration.
Under §274A of the Immigration and Nationality Act (INA),26 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” and is the responsibility of
DHS’s ICE. While all employers must meet the I-9 requirements, they may also elect to
participate in the E-Verify electronic employment eligibility verification system.27 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.28
E-Verify is a temporary program and is currently authorized until September 30, 2012. Several
bills introduced in the 112th Congress would variously make E-Verify permanent, require its use
for verification of new hires, and permit or require its use for verification of previously hired
workers.29 Other bills would authorize a new electronic employment eligibility verification
system to replace E-Verify.30 Discussion of proposals to expand electronic employment eligibility
verification requirements—whether though E-Verify or another system—have raised some
concerns about labor shortages in sectors of the economy that are known to employ large
numbers of unauthorized aliens, such as agriculture. (Legislative proposals on foreign agricultural
workers are discussed in a subsequent section.)
Among the bills that would authorize a new electronic verification system is H.R. 2885, which
has been ordered reported by the House Judiciary Committee. The new system would be modeled
on E-Verify and the authorizing language would be added to INA §274A. Under H.R. 2885, as
ordered reported, the new verification system would be mandatory for all employers in cases of
hiring, recruitment, and referral. The verification requirements with respect to hiring would be
phased in by employer size, with the largest employers required to participate six months after the
date of enactment and the smallest employers required to participate two years after the date of
enactment. The requirements with respect to recruitment and referral would apply one year after
the date of enactment. The bill would also provide for mandatory reverification of workers with
limited work authorization. These reverification requirements would be phased in on the same
schedule as the hiring requirements. Special provisions would apply to agriculture; the hiring,
recruitment and referral, and reverification provisions would not apply to agricultural workers
until three years after the date of enactment. As introduced, the bill also provided that seasonal
26 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.
27 While E-Verify is primarily a voluntary program, there are some mandatory participants. See CRS Report R40446,
Electronic Employment Eligibility Verification, by Andorra Bruno.
28 For additional information on E-Verify, see Ibid.
29 See, for example, Jobs Recovery by Ensuring a Legal American Workforce Act of 2011 (H.R. 800) and
Accountability Through Electronic Verification Act (S. 1196).
30 See, for example, Illegal Immigration Enforcement and Social Security Protection Act of 2011 (H.R. 98), Electronic
Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 483), and Legal Workforce Act (H.R.
2885).
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agricultural workers returning to work for a previous employer would not be treated as new hires
for verification purposes, but an amendment to strike this language was agreed to at the markup.
H.R. 2885, as ordered reported, would require or permit electronic verification in ways not
currently allowed under E-Verify. Verification of previously hired individuals would be
mandatory in some cases (such as, federal, state, and local government employees), while
employers could verify current employees on a voluntary basis beginning 30 days after
enactment. Under H.R. 2885, employers could conduct electronic verification after making an
offer of employment but before hiring, and could condition a job offer on final verification under
the system.
H.R. 2885, as ordered reported by the House Judiciary Committee, would increase existing civil
and criminal penalties for violations of INA §274A provisions on unauthorized employment. It
would also establish new penalties, including for individuals who knowingly provide social
security numbers or DHS identification numbers that belong to others and for employers who
submit such numbers for verification knowing that they belong to someone other than the subject
of the query. Lastly, the bill would direct the Secretary of Homeland Security, in consultation with
the Social Security Commissioner and the Director of the National Institute of Standards and
Technology, to establish a biometric employment eligibility verification pilot program that would
be voluntary for employers.
P.L. 112-74 contains some E-Verify-related language. For example, a provision in Division D of
the bill on DHS appropriations (§530) states that none of the funds made available to the DHS
Office of the Secretary and Executive Management under the act may be used for any new hires
not checked through E-Verify.
Preemption of State and Local Employment-Verification Measures
Some states and localities have sought to deter unauthorized aliens from entering or remaining
within their jurisdiction by requiring employers to use E-Verify and/or imposing sanctions on
employers found to have hired unauthorized aliens.31 The Supreme Court recently upheld one
such measure, the Legal Arizona Workers Act, finding that it was not preempted by federal
immigration law.32 Some lower courts had previously found that similar measures were
preempted, in part, because of the burdens that employers operating in multiple states would bear
in complying with different state laws.33 Some business groups have responded to the Supreme
Court’s decision in the Arizona case by lobbying for a single national electronic verification
regime.34 H.R. 2885, as ordered reported by the House Judiciary Committee, would establish such
a regime, expressly preempting state and local E-Verify measures, along with other measures
“relat[ing] to the hiring, continued employment, or status verification for employment eligibility
purposes, of unauthorized aliens.” However, H.R. 2885 would allow states and localities to
revoke the business or other licenses of employers who fail to electronically verify the
employment eligibility of their workers.
31 See CRS Report R41991, State and Local Restrictions on Employing Unauthorized Aliens, by Kate M. Manuel.
32 Chamber of Commerce of the United States v. Whiting, – U.S.—, 131 S. Ct. 1968 (2011).
33 See, for example, Lozano v. City of Hazleton, 620 F.3d 170, 213 (3d Cir. 2010), vacated and remanded by 180 L.
Ed. 2d 243, 2011 U.S. LEXIS 4259 (U.S. 2011).
34 See, for example, “Uptick in State Immigration Laws May Force Congress to Act, Speakers Say,” 5 Workplace
Immigration Report 381 (July 25, 2011).
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Other bills introduced in the 112th Congress would expressly preempt state and local measures
prohibiting employers from verifying new hires or current employees through E-Verify. 35 Illinois
once had such a measure, but it was found to be preempted by federal immigration law.36
Immigrant Detention
Certain removable aliens cannot be removed from the United States because they do not have
travel documents permitting them to return to their country of origin or because the aliens are
more likely than not to be subject to torture if returned to the country of origin.37 The U.S.
Supreme Court ruled in Zadvydas v. Davis (2001)38 that such aliens could only be detained
following an order of removal for so long as is “reasonably necessary to bring about that alien’s
removal from the United States,” but that the INA “does not permit indefinite detention.” The
Court found that the presumptively reasonable limit for the post-removal-period detention is six
months, but indicated that continued detention may be warranted when the policy is limited to
specially dangerous individuals, such as terrorists or those in other special circumstances, and
strong procedural protections are in place.
Following the Court’s ruling in Zadvydas, new regulations were issued to comply with the
Court’s holding.39 ICE generally can only detain an alien beyond the initial 90-day removal
period if ICE determines that the alien is likely to abscond if released or that the alien poses a
danger to the public, or if ICE is likely to obtain travel documents for the alien in the near
future.40 Under regulation, ICE may not detain an alien for more than six months unless the
alien’s removal is likely in the reasonably foreseeable future, except in special circumstances,
including aliens who are detained on account of (1) having a highly contagious disease that is a
threat to public safety, (2) serious adverse foreign policy consequences of release, (3) security or
terrorism concerns, or (4) being considered specially dangerous due to having committed one or
more crimes of violence and having a mental condition making it likely that the alien will commit
acts of violence in the future.41
In October 2011, the House Judiciary Committee reported the Keep Our Communities Safe Act of
2011 (H.R. 1932). Among other provisions, the bill would allow DHS to detain indefinitely,
subject to six-month reviews, an alien under orders of removal who cannot be removed if (1)
there is a significant likelihood that the alien will be removed in the reasonably foreseeable
future; (2) the alien would have been removed but for the alien’s refusal to cooperate with the
DHS Secretary’s identification and removal efforts; (3) the alien has a highly contagious disease
that poses a public safety threat; (4) release would have serious adverse foreign policy
consequences; (5) release would threaten national security; (6) release would threaten the safety
35 See, for example, Accountability Through Electronic Verification Act (S. 1196).
36 United States v. Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill., March 12, 2009).
37 For a discussion of the Convention Against Torture, see CRS Report RL32276, The U.N. Convention Against
Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens, by Michael John Garcia.
38 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).
39 See 8 C.F.R. §§241.13-14 and discussion at 66 Federal Register 56967 (November 14, 2001) of procedures for
determining whether there is no significant likelihood of removal in the reasonably foreseeable future and for
determining whether an alien is subject to special circumstances justifying continued detention.
40 8 C.F.R. §241.4.
41 Ibid.
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of the community, and the alien has either been convicted of one or more aggravated felonies or
other designated crimes or been convicted of one or more crimes of violence and due to a mental
condition or personality disorder is likely to engage in future acts of violence; or (7) release
would threaten the safety of the community, and the alien has been convicted of at least one
aggravated felony. The bill would limit habeas corpus reviews42 of such detention and related
actions or decisions to the U.S. District Court for the District of Columbia. Also, the bill would
permit unlimited detention of certain aliens during pending removal proceedings.
Visa Security
The Department of State (DOS) and DHS both play key roles in administering the law and
policies on the admission of aliens to the United States. Although DOS’s Consular Affairs is
responsible for issuing visas, USCIS in DHS approves immigrant petitions, ICE in DHS operates
the Visa Security Program in selected U.S. embassies abroad, and CBP in DHS inspects all people
who enter the United States.
All foreign nationals seeking visas must undergo admissibility reviews performed by DOS
consular officers abroad. These reviews are intended to ensure that applicants are not ineligible
for admission to the United States under the grounds for inadmissibility spelled out in INA §212.
These criteria include health-related grounds, criminal history, security and terrorist concerns,
public charge (e.g., indigence), and previous immigration offenses.43
Consular officers use the Consular Consolidated Database (CCD) to screen visa applicants.
Records of all visa applications are now automated in the CCD, with some records dating back to
the mid-1990s. Since February 2001, the CCD has stored photographs of all visa applicants in
electronic form, and the CCD has stored 10-finger scans since 2007. In addition to indicating the
outcome of any prior visa application and comments by consular officers, the system links to
other security databases to flag problems that may have an impact on the issuance of the visa.
Congress is particularly interested in the Visa Security Program (VSP), which the ICE Office of
International Affairs (OIA) operates in certain high-risk consular posts. As described by DHS, the
VSP sends ICE special agents with expertise in immigration law and counterterrorism to foreign
consulates, where they perform visa security activities that complement the DOS visa screening
process. According to DHS, the VSP provides law enforcement resources not available to
consular officers. One of the major tasks for VSP agents is to screen visa applicants to determine
their risk profiles.
GAO recently released an evaluation of the VSP that identified several shortcomings. In addition
to noting that tensions exist between consular officials and VSP agents, GAO was especially
concerned about the lack of standard operating procedures for VSP agents across the various
posts. Most importantly, perhaps, GAO stated that ICE has not expanded VSP to key high-risk
posts despite well-publicized plans to do so.44
42 Habeas corpus review is a legal action through which a person’s detention is reviewed for legality.
43 CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by Ruth Ellen
Wasem.
44 U.S. Government Accountability Office (GAO), Border Security: DHS’s Visa Security Program Needs to Improve
Performance Evaluation and Better Address Visa Risk Worldwide, GAO-11-315, March 31, 2011, http://www.gao.gov/
(continued...)
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Despite the VSP’s implementation problems, some observers maintain that DHS should play a
larger role in visa security. In their view, DOS retains too much power over visa issuances, and
consular officers are too concerned about facilitating tourism and trade to thoroughly scrutinize
visa applicants. From this perspective, greater responsibility should be given to the VSP, which
does not have competing priorities of diplomatic relations and reciprocity with foreign
governments, and may subject visa applications to greater scrutiny.45
Along these lines, the House Committee on the Judiciary has ordered reported the Secure Visas
Act (H.R. 1741) that would give the Secretary of Homeland Security “exclusive authority to issue
regulations, establish policy, and administer and enforce the provisions of the Immigration and
Nationality Act (8 U.S.C. §1101 et seq.) and all other immigration or nationality laws relating to
the functions of consular officers of the United States in connection with the granting and refusal
of a visa.”
In addition to these broader concerns about visa security, Congress has also addressed matters of
exclusion and inadmissibility. More specifically, Division I, §4505(a)(3)(A), of P.L. 112-74
instructs the Secretary of State not to issue a visa to any alien who has willfully supported the
Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), the
United Self-Defense Forces of Colombia (AUC), or other illegal armed group. The ban also
includes aliens who have committed, ordered, incited, assisted, or otherwise participated in the
commission of a violation of human rights in Colombia. The law states that the denial must be
based upon credible evidence and allows the Secretary to grant waivers on a case-by-case basis if
deemed necessary to support the peace process or for urgent humanitarian reasons.
Per-country Limits on Permanent Admissions
The INA specifies that each year, countries are held to a numerical limit of 7% of the total
worldwide level of U.S. immigrant admissions,46 known as the per-country limit.47 This provision
was intended to prevent any single country from dominating admissions to the United States. The
per-country level is not a “quota” set aside for individual countries, as each country in the world
could not receive 7% of the overall limit.
The per-country limit applies to legal permanent resident (LPR) admissions under both the four
family-sponsored admission classes and the five employment-based admissions classes. 48 The
limit applies to total annual admissions under the preference system, as well as within the
employment-based and family-based preference categories.49 In recent years, two countries that
(...continued)
products/GAO-11-315.
45 For additional information, see CRS Report R41093, Visa Security Policy: Roles of the Departments of State and
Homeland Security, by Ruth Ellen Wasem.
46 The INA provides for a permanent annual worldwide level of 675,000 LPRs, but this level is flexible and certain
categories of LPRs are permitted to exceed the limits. INA §201; 8 U.S.C. §1151.
47 INA §202; 8 U.S.C. §1152.
48 The INA stipulates a floor of 226,000 for the four family-sponsored preference categories. The numerical limit for
the five employment-based preference categories is 140,000. For more information on these limits and their exceptions,
see CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, and CRS Report R42048, Numerical
Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings, both by Ruth Ellen Wasem.
49 However, there are circumstances when the employment based per-country limits may be exceeded. For example, the
(continued...)
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send large numbers of skilled immigrants to the United States, India and China, have been
oversubscribed in the 2nd and 3rd employment-based preference categories for persons with
advanced degrees and professional and skilled workers, respectively. To be “oversubscribed”
means that more visa petitioners are eligible and approved for the preference category than the
number allocated for that year, in that category, from that country. As a result, petitioners and
their employers applying under these employment-sponsored categories could expect to wait
several years to receive a visa.
Even as U.S. unemployment levels remain high, some employers assert that they continue to need
the “best and the brightest” workers, regardless of their country of birth, to remain competitive in
a worldwide market and to keep their firms in the United States. While support for increasing
employment-based immigration may be dampened by current economic conditions, proponents
argue it is essential for economic growth.50 Those opposing increases in employment-based LPRs
assert that there is no compelling evidence of labor shortages and cite the rate of unemployment
across various occupations and labor markets.51 They argue that recruiting foreign workers while
unemployment levels remain high would have a deleterious effect on salaries, compensation, and
working conditions of U.S. workers.52
The Fairness for High-Skilled Immigrants Act (H.R. 3012), as reported by the House Judiciary
Committee, would amend the INA to eliminate per-country ceilings on permanent employment-
based admissions and increase the per-country ceiling on permanent family-based admissions
from 7% to 15%. The bill would not alter the total number of LPRs admitted under the family-
based and employment-based preference systems. This bill would also amend the Chinese
Student Protection Act of 1992 (P.L. 102-404) to eliminate the provision requiring the reduction
of annual Chinese (PRC) immigrant visas to offset status adjustments under the 1992 act. These
changes in H.R. 3012 would be instituted over four years. On November 29, 2011, the House
passed H.R. 3012 by a vote of 389-15. 53 In the Senate, a similar bill (S. 1983) was introduced in
December 2011.
(...continued)
American Competitiveness in the Twenty-First Century Act of 2000 (P.L. 106-313) enabled the per-country ceilings
for employment-based immigrants to be surpassed for individual countries that are oversubscribed as long as visas are
available within the worldwide limit for employment-based preferences. As a result, employment-based preference
allocations may exceed the 7% per-country limit within the overall level of 140,000 annually.
50 Many of the comprehensive immigration reform bills since 2000 would have increased the total number of
employment-based immigrants. Some would have revised the employment-based preference categories. A merit-based
point system was also considered. For further background, see Appendix D in CRS Report RL32235, U.S. Immigration
Policy on Permanent Admissions, by Ruth Ellen Wasem.
51 For further discussion, see U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy
and Enforcement, STEM the Tide: Should America Try to Prevent an Exodus of Foreign Graduates of U.S. Universities
with Advanced Science Degrees?, hearing, 112th Cong., 1st sess., October 5, 2011; and CRS Report R40080, Job Loss
and Infrastructure Job Creation Spending During the Recession, by Linda Levine.
52 For further discussion, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and
Protections, by Ruth Ellen Wasem; and archived CRS Report 95-408, Immigration: The Effects on Low-Skilled and
High-Skilled Native-Born Workers, by Linda Levine.
53 See CRS Report R42048, Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country
Ceilings, by Ruth Ellen Wasem.
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Diversity Visas
The purpose of the diversity immigrant visa lottery is, as the name suggests, to encourage legal
immigration from countries other than the major sending countries of current immigrants to the
United States. Current law weights the allocation of immigrant visas heavily toward aliens with
close family in the United States and, to a lesser extent, toward aliens who meet particular
employment needs. The diversity immigrant category was added to the INA by the Immigration
Act of 1990 (P.L. 101-649) to stimulate “new seed” immigration (i.e., to foster new, more varied
migration from other parts of the world).
To be eligible for a diversity visa, the INA requires that the foreign national must have a high
school education or the equivalent, or two years of experience in an occupation that requires at
least two years of training or experience. The foreign national or the foreign national’s spouse
must be a native of one of the countries listed as a foreign state qualified for the diversity visa
lottery. Diversity lottery winners, like all other aliens wishing to come to the United States, must
undergo reviews performed by DOS consular officers abroad and DHS immigration officers upon
entry to the United States. These reviews are intended to ensure that the aliens are not ineligible
for visas or admission under the grounds for inadmissibility spelled out in the INA.
The diversity lottery currently makes 50,000 visas available annually to natives of countries that
accounted for fewer than 50,000 immigrant admissions in total over the preceding five years. The
formula for allocating visas is based upon the statutory specifications; visas are divided among
six global geographic regions according to the relative populations of the regions.
Some argue that the diversity lottery should be eliminated and its visas used for backlog reduction
in other visa categories. Supporters of the diversity visa, however, argue that the diversity visa
provides “new seed” immigrants for an immigration system weighted disproportionately toward
family-based immigrants from a handful of countries. Critics of the diversity lottery warn that it is
vulnerable to fraud and misuse, and potentially an avenue for terrorists, citing the difficulties of
performing background checks in many of the countries eligible for the diversity lottery.
Supporters respond that background checks for criminal and national security matters are
performed on all prospective immigrants seeking to come to the United States, including those
winning diversity visas. In November 2011, the House Committee on the Judiciary reported H.R.
704, the Security and Fairness Enhancement for America Act of 2011 (SAFE for America Act),
which would amend the INA to eliminate the diversity visa lottery.54
Foreign Temporary Nurses
The H-1C nonimmigrant category for nurses was established by a 1999 law (P.L. 106-95) and
reauthorized in 2006 (P.L. 109-423) as a short-term solution for nursing shortages in a limited
number of medically underserved areas. Facilities have to be approved to employ H-1C nurses.55
The authority to issue H-1C visas expired on December 20, 2009. Previously, the law allowed for
the issuance of 500 nonimmigrant visas to nurses each year, with the proviso that the number of
visas issued annually for employment in smaller states could not exceed 25 and the number
54 For additional information, see CRS Report R41747, Diversity Immigrant Visa Lottery Issues, by Ruth Ellen Wasem.
55 There are 14 hospitals approved to hire H-1C nurses.
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issued for employment in larger states could not exceed 50. The law limited an H-1C nurse’s stay
to three years.
H.R. 1933, as passed by the House, would reauthorize the H-1C category for three years. It also
would amend the law to allow for the issuance of 300 nonimmigrant visas to nurses each year,
and to limit an H-1C nurse’s initial stay to three years with the opportunity to renew the visa for
another three years (i.e., a total stay of six years). The bill would provide H-1C nurses with
portability by allowing an H-1C nurse to begin employment at another hospital approved to
employ aliens in this visa category while the petition filed by the new employer is being
adjudicated. Employment at the new facility would end if the petition is denied.
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.56 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 Department of State handles overseas processing of refugees, and
DHS/USCIS makes final determinations about eligibility for admission.57 After one year in
refugee status in the United States, refugees are required to apply to adjust to LPR status.
Several bills have been introduced in the 112th Congress that would make various changes to the
U.S. refugee program. Some of these measures propose to reform the refugee admissions process,
such as by authorizing the President to designate groups of aliens of humanitarian concern that,
absent countervailing factors, would be considered refugees for purposes of admission and by
changing existing INA provisions regarding the admission of refugee spouses and children.58
Other proposals focus more directly on the resettlement assistance program for refugees and other
designated groups administered by the Department of Heath and Human Services’ Office of
Refugee Resettlement (HHS/ORR).59
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg
amendment,” first enacted in 1989, required 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 provided 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,” to direct the Attorney
General to establish categories of Iranian religious minorities who may qualify for refugee status
under the Lautenberg amendment’s reduced evidentiary standard. The Lautenberg amendment
was regularly extended through FY2010. For FY2011, Congress extended the amendment only
until June 1, 2011, in P.L. 112-10 (Div. B, §2121(m)), and it temporarily terminated on that date.
56 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.
57 For additional information on the U.S. refugee program, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy, by Andorra Bruno.
58 See, for example, Refugee Protection Act of 2011 (H.R. 2185/S. 1202).
59 See, for example, Domestic Refugee Resettlement Reform and Modernization Act of 2011 (H.R. 1475).
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It was re-enacted for FY2012 by P.L. 112-74 (Div. I, §7034(r)), however, and is now in effect
until October 1, 2012.
Other Issues and Legislation
Secure Communities and the Criminal Alien Program
With longstanding support from Congress, ICE makes it a priority to identify, detain, and remove
aliens who have been convicted of crimes in the United States, with a particular focus on aliens
who have been convicted of aggravated felonies as defined in §101(a)(43) of the INA and on
aliens who have been convicted of two or more crimes each punishable by more than one year in
jail (i.e., two or more felonies).60 Beginning in FY2008, Congress roughly doubled ICE’s funding
for the Criminal Alien Program, an umbrella program to identify aliens in federal, state, and local
jails and initiate removal proceedings against removable aliens prior to the conclusion of their
sentences. It also provided additional line-item funding for the Comprehensive Identification and
Removal of Criminal Aliens, a program subsequently known as Secure Communities.61 Under
Secure Communities, when participating law enforcement agencies submit the fingerprints of
arrestees to the Federal Bureau of Investigation (FBI) for criminal background checks, the
fingerprints are also checked against DHS databases. When an arrestee appears to be subject to
removal, ICE’s Law Enforcement Support Center (LESC) notifies the ICE Enforcement and
Removal field office in the arresting jurisdiction.
ICE views Secure Communities, in particular, as an efficient way to carry out the agency’s
mandate to identify criminal aliens and to make the removal of criminal aliens an enforcement
priority. The Obama Administration plans to expand the program to every law enforcement
jurisdiction in the country by the end of 2013.62 The program has generated controversy, however.
This is due, in part, to reports that some aliens identified and removed through Secure
Communities have not been convicted of “serious” crimes or any criminal offense, as well as
concerns that state and local involvement in enforcing federal immigration law could lead to
racial profiling or strain police-community relations.63 In addition, characterization of the
program by ICE and DHS appears to have changed over time, prompting questions about whether
states and localities may determine whether to participate in it and how, if at all, they may “opt
out.”64
60 John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, U.S. Immigration and Customs Enforcement, Washington, DC, March 2, 2011, http://www.ice.gov/
doclib/news/releases/2011/110302washingtondc.pdf; also see CRS Report RL32480, Immigration Consequences of
Criminal Activity, by Michael John Garcia.
61 See CRS Report R41189, Homeland Security Department: FY2011 Appropriations, coordinated by Jennifer E. Lake
and William L. Painter.
62 For the Administration’s views of Secure Communities, see U.S. Immigration and Customs Enforcement, Secure
Communities, March 2011, http://www.ice.gov/secure_communities/.
63 See U.S. Department of Homeland Security Advisory Council, “Task Force on Secure Communities Findings and
Recommendations,” September 2011.
64 See, for example, Tara Bahrampour, “Immigration Authority Terminates Secure Communities Agreements,” The
Washington Post, August 7, 2011, http://www.washingtonpost.com/local/immigration-authority-terminates-secure-
communities-agreements/2011/08/05/gIQAlwx80I_story.html; Letter from John Morton, Director, U.S. Immigration
and Customs Enforcement, to Gerald Brown, Governor of California, August 5, 2011.
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In line with efforts to expand Secure Communities, several bills in the 112th Congress would deny
funding for various Department of Justice programs, including the State Criminal Alien
Assistance Program (discussed below), to jurisdictions that do not participate fully in Secure
Communities and/or in other aspects of ICE’s Criminal Alien Program.65 Other proposed
legislation would respond to concerns about whether state and local participation in Secure
Communities leads to racial profiling or interferes with police-community relations.66
State Criminal Alien Assistance Program
The State Criminal Alien Assistance Program (SCAAP) provides reimbursement to state and local
governments for the direct costs associated with incarcerating unauthorized criminal aliens.
Authorization for SCAAP expired on September 30, 2011. Despite this, the Consolidated and
Further Continuing Appropriations Act, 2012 (P.L. 112-55) provides $240 million for SCAAP.
Legislation has been introduced to reauthorize the program and make changes to the grant
formula.67 The President’s FY2012 budget request for SCAAP includes a new requirement to
only provide reimbursement for costs associated with DHS-verified unauthorized criminal aliens.
In order to prepare for this change, SCAAP jurisdictions have been encouraged to work with
DHS to increase inmate alien status verifications through the Secure Communities, 287(g), and
the Law Enforcement Support Center (LESC) programs.68
State and Local Immigration Measures
In recent years, several states and localities have sought to deter the presence of unauthorized
aliens within their jurisdictions through a variety of enforcement measures, with Arizona’s S.B.
1070 being perhaps the most notable example.69 Many of these measures have been challenged in
federal court, with litigation generally focusing on whether these enactments are consistent with
federal immigration law. The Supreme Court recently held that states are not precluded from
requiring employers to use the federal government’s E-Verify system to determine the work
eligibility of employees, or requiring the suspension or revocation of the business licenses of
entities that knowingly employ unauthorized aliens.70 Several other state and local measures
intended to deter the presence of unlawfully present aliens—including measures that sanction
conduct that may facilitate unauthorized immigration, authorize state and local police to
investigate and arrest persons suspected of violating federal immigration law, or limit
unauthorized aliens’ access to housing or public resources—are the subject of ongoing litigation
65 See, for example, Enforce the Law for Sanctuary Cities Act (H.R. 1134), Strengthening Our Commitment to Legal
Immigration and America’s Security Act (S. 332), and H.R. 1764/S. 169.
66 See, for example, Traffic Stops Along the Border Statistics Study Act of 2011 (H.R. 228).
67 See, for example, CLEAR Act of 2011 (H.R. 100), SCAAP Reimbursement Protection Act of 2011 (S. 638), and
Comprehensive Immigration Reform Act of 2011 (S. 1258).
68 Further information about these programs is available on the ICE website, http://www.ice.gov.
69 See, generally, CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B.
1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig.
70 Chamber of Commerce of the United States v. Whiting, – U.S.—, 131 S. Ct. 1968 (2011); CRS Report RL34345,
State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal
Issues and Recent Judicial Developments, by Kate M. Manuel, Jody Feder, and Alison M. Smith.
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and, in many cases, conflicting judicial rulings.71 Given the unsettled state of the law in this area,
Members have introduced legislation that would purport to recognize that state and local officers
have “inherent authority” to enforce federal immigration law,72 or conversely, would establish that
state and local officers may only enforce federal immigration law pursuant to a written agreement
authorized under Section 287(g) of the INA.73
Limits on Executive Branch Discretion
The Obama Administration has observed that ICE does not have the funding or capacity to deport
every potentially removable alien identified by DHS, especially with the advent of Secure
Communities. In March and June 2011, ICE published a pair of updated agency guidance
memoranda governing the use of prosecutorial discretion during immigration enforcement to
ensure that removal resources go to high-priority cases.74 And on August 18, 2011, DHS
Secretary Janet Napolitano announced in a letter to Senator Richard Durbin and others that the
March and June guidance would apply to all DHS immigration agencies.75 DHS and the
Department of Justice also created an interagency working group to review about 300,000
pending removal cases on a case-by-case basis to consider administratively closing certain cases,
and to conduct expedited reviews of those cases that are not administratively closed. The working
group began these reviews with a pair of pilot programs in Baltimore, MD, and Denver, CO, in
December 2011.76
Some Members of Congress object to the Administration’s prosecutorial discretion policies and
have argued that for the Administration explicitly to identify certain types of cases that may be
closed amounts to an “administrative amnesty”; others describe prosecutorial discretion as a
critical tool to prevent misallocation of agency resources.77 Partly in response to the June 2011
agency guidance,78 the Hinder the Administration’s Legalization Temptation (HALT) Act (H.R.
2497) would suspend for the remainder of President Obama’s term in office (i.e., through January
71 See, generally, CRS Report R41423, Authority of State and Local Police to Enforce Federal Immigration Law, by
Michael John Garcia and Kate M. Manuel.
72 See, for example, CLEAR Act (H.R. 100).
73 See, for example, Comprehensive Immigration Reform Act (S. 1258).
74 John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens, U.S. Department of Homeland Security, Immigration and Customs Enforcement, March 2, 2011,
http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf; John Morton, Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens, U.S. Department of Homeland Security, Immigration and Customs Enforcement,
June 17, 2011, http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
75 Letter from Janet Napolitano, Secretary of Homeland Security, to Senator Richard Durbin, August 18, 2011. Also see
Robert Pear, “Few Youths to be Deported in New Policy,” New York Times, August 18, 2011, p. A1; Testimony of
DHS Secretary Janet Napolitano, at U.S. Congress, Senate Committee on the Judiciary, Oversight of the Department of
Homeland Security, hearing, 112th Cong., 1st sess., October 19, 2011.
76 U.S. Department of Justice, Executive Office of Immigration Review, “EOIR Statement Regarding Prosecutorial
Discretion,” press release, November 17, 2011, http://www.justice.gov/eoir/press/2011/
EOIRProsecutorialDiscretion11172011.htm.
77 See, for example, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and
Enforcement, U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law, 112th Cong., 1st sess.,
October 12, 2011.
78 Press releases announcing the introduction of the Hinder the Administration’s Legalization Temptation (HALT) Act
explicitly mentioned the June 17, 2011, ICE memorandum on prosecutorial discretion.
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21, 2013) the executive branch’s authority to grant several types of discretionary relief, including
(1) waivers of the three- and 10-year bars to admissibility for certain unauthorized immigrants
(INA §212(a)(9)(B)(v)); (2) “parole,” or temporary permission to enter and be present in the
United States (INA §212(d)(5)(A)); (3) cancellation of removal and adjustment of status for
certain lawful permanent residents (INA §240A(b)(1)); (4) temporary protected status (INA
§244(b)); and (5) deferred action and extended voluntary departure.
Other bills introduced in the 112th Congress also address issues of executive branch discretion and
judicial review. Some, along similar lines as the HALT Act, would tighten the standards for parole
and deferred action. Other proposed legislation, by contrast, could expand judicial relief from
removal by allowing immigration judges to consider factors not currently considered when
determining whether to grant cancellation of removal.79
Victims of Trafficking
It is an international and a domestic crime to engage in trafficking in persons (TIP) for the
purposes of exploitation. TIP involves violations of labor, public health, and human rights
standards. Congress passed the Victims of Trafficking and Violence Protection Act (TVPA, P.L.
106-386) in 2000 and has reauthorized the TVPA several times since, most recently in the 110th
Congress (P.L. 110-457). The current program authorizations expired at the end of FY2011.
Domestically, TVPA and its subsequent reauthorizations80 created two nonimmigrant (temporary)
visa categories: one for victims of severe forms of trafficking (T visa) and the other for victims of
certain specified crimes (U visa).81 The 2000 act and the reauthorizations also created several
grant programs to aid trafficking victims and to train law enforcement to combat TIP.
A House reauthorization bill, the Trafficking Victims Protection Reauthorization Act of 2011
(H.R. 2830), was reported by the House Foreign Affairs Committee in October 2011.82 A Senate
reauthorization bill, the Trafficking Victims Protection Reauthorization Act of 2011 (S. 1301),
was reported by the Senate Judiciary Committee in November 2011. H.R. 2830 would extend
current authorizations in TVPA and its reauthorizations for FY2012 and FY2013, and would
maintain most programs at current authorization levels. S. 1301 would extend current
authorizations in the TVPA and its reauthorizations through FY2015 and would increase
authorization levels by $2 million each for the two main victim service grant programs.
Both H.R. 2830 and S. 1301 would make it a criminal offense to knowingly destroy—or, for a
period of more than 48 hours, to conceal, remove, confiscate, or possess—another person’s
passport or immigration or personal identification documents in the course of attempting to
commit fraud in foreign labor contracting or alien smuggling, or in order to unlawfully maintain,
prevent, or restrict the labor or services of the individual. In addition, both bills would make
several changes to the INA related to the custody and care of unaccompanied alien children. The
Senate bill would further specify that children who receive U status and are in the custody of
79 See, for example, H.R. 250.
80 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457), Trafficking
Victims Protection Reauthorization Act of 2005 (P.L. 109-164), and Trafficking Victims Protection Reauthorization
Act of 2003 (P.L. 108-193).
81 For more information on these visa categories, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and
Issues for Congress, by Alison Siskin and Liana Sun Wyler
82 A related bill of the same name with same sponsor was introduced in the House (H.R. 3589) in December 2011.
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HHS are eligible for programs and services to the same extent as refugees. S. 1301 would also
create a new grant program to provide services to child victims of sex trafficking.
Immigrant Investors
There is currently one immigrant visa category specifically for foreign investors (LPR investors)
coming to the United States. LPR investors comprise the fifth preference category under the
employment-based immigration system in the INA, and this immigrant visa is commonly referred
to as the EB-5 visa.83 The basic purpose of the LPR investor visa is to benefit the U.S. economy,
primarily through employment creation and an influx of foreign capital into the United States.
Employment-based LPR investor visas are designated for individuals wishing to develop a new
commercial enterprise in the United States. The INA stipulates that for the investor to qualify for
the EB-5 visa, the enterprise must employ at least 10 people, the investor must invest $1 million
into the enterprise, and the business and jobs created must be maintained for a minimum of
two years.84
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.85 The Regional Center Pilot Program is intended to provide a
coordinated focus for foreign investment toward specific geographic regions. The majority of EB-
5 immigrant investors come through the pilot program. The Regional Center Pilot Program is
authorized through September 30, 2012.86 There are bills in the 112th Congress that would
permanently authorize the program,87 and others that would amend the requirements for EB-5
visas88 or create a new, sixth employment-based preference (EB-6) for sponsored alien
entrepreneurs.89
Foreign Temporary Agricultural Workers
Under current law, there is one program that provides for the admission of foreign temporary
agricultural workers to the United States: the H-2A nonimmigrant visa program. This program
allows for the temporary admission of foreign workers to the United States to perform
agricultural labor or services of a seasonal or temporary nature, provided that U.S. workers are
not available. An approved H-2A visa petition is generally valid for an initial period of up to one
year. An employer can apply to extend an H-2A worker’s stay in increments of up to one year, but
an alien’s total period of stay as an H-2A worker may not exceed three consecutive years. The H-
2A program, which is not subject to a numerical cap, is administered by the Employment and
83 For a discussion of employment-based immigration and the preference categories, see CRS Report RL32235, U.S.
Immigration Policy on Permanent Admissions, by Ruth Ellen Wasem.
84 INA §203(b)(5), §216A.
85 P.L. 102-395, Title VI, §610, October 6, 1992. 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.
86 P.L. 108-156 extended the program through FY2008, and §548 of P.L. 111-83 extended the authorization through
September 30, 2012.
87 See, for example, Creating American Jobs Through Foreign Capital Investment Act (S. 642).
88 See, for example, Immigration Driving Entrepreneurship in America Act of 2011 (H.R. 2161).
89 See, for example, StartUp Visa Act of 2011 (H.R. 1114/S. 565).
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Training Administration (ETA) of the Department of Labor (DOL) and USCIS of DHS. The
Obama Administration issued new final rules on the H-2A program in 2010.90
An employer who wants to import H-2A workers must first apply to DOL for a certification that
(1) there are not sufficient U.S. workers who are qualified and available to perform the work; and
(2) the employment of foreign workers will not adversely affect the wages and working
conditions of U.S. workers who are similarly employed. Prospective H-2A employers must
attempt to recruit U.S. workers and must cooperate with DOL-funded state workforce agencies
(SWAs) in local, intrastate, and interstate recruitment efforts. In addition, under the “50 percent
rule,” H-2A employers are required to hire any qualified U.S. worker who applies for a position
until 50% of the work contract under which the H-2A workers are employed has elapsed. H-2A
employers must pay their H-2A workers and similarly employed U.S. workers the highest of
several wage rates (including the adverse effect wage rate) and must provide workers with
housing, transportation, and other benefits.91
The American Specialty Agriculture Act (H.R. 2847), which was the subject of a hearing by the
House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement in
September 2011, would establish a new H-2C visa for temporary agricultural workers as an
alternative to the H-2A visa. Unlike the H-2A visa, the H-2C visa would not be limited to
agricultural labor of a temporary or seasonal nature and could be used to bring in workers to
perform non-seasonal agricultural work. An H-2C worker’s continuous period of stay would be
limited to 10 months, and the program would be capped at 500,000 annually. The new program
would be administered by the USDA and would not be subject to the same labor certification
process as the H-2A visa. Instead, prospective H-2C employers would attest in their applications
that they had satisfied applicable recruitment, wage, and benefit requirements, which would differ
from those under the H-2A visa. With respect to wages, the H-2C visa would not be subject to the
adverse effect wage rate; H-2C employers would be required to pay the higher of the prevailing
wage rate or the applicable minimum wage rate. Among other differences between the H-2A
program and the proposed H-2C program, the H-2C program would be subject to more limited
U.S. worker recruitment requirements; the H-2C program would not have a “50 percent rule;” and
H-2C employers could provide housing vouchers instead of housing. Other bills would establish
different new foreign agriculture worker programs or would amend the existing H-2A program.92
Unauthorized Students
Unauthorized alien students are a subpopulation of the larger unauthorized alien population in the
United States.93 They are able to receive free public education through high school despite their
illegal status, but face various obstacles in the pursuit of higher education. More broadly, as
unauthorized aliens they are unable to work legally and are subject to removal from the
United States.
90 For a discussion of these DOL and DHS rules, see CRS Report RL32044, Immigration: Policy Considerations
Related to Guest Worker Programs, by Andorra Bruno.
91 See Ibid.
92 See, for example, Legal Agricultural Workforce Act (H.R. 2895) and HARVEST Act of 2011 (S. 1384).
93 For information and analysis of the unauthorized alien population generally, see CRS Report R41207, Unauthorized
Aliens in the United States, by Andorra Bruno.
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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 unauthorized alien
students with access to both educational opportunities and immigration status. Typically, DREAM
Act bills propose to enable eligible individuals to obtain LPR status in the United States through a
two-stage process. In the first stage, aliens meeting specified criteria could go through an
immigration procedure known as “cancellation of removal” to obtain a conditional legal status. In
the second stage, aliens, after meeting additional requirements, could apply to become full-
fledged LPRs. DREAM Act bills also often contain a repeal of a provision of current law (§505 of
the Illegal Immigration Reform and Immigrant Responsibility Act) that restricts the ability of
states to provide postsecondary educational benefits to unauthorized aliens.94
Attempts to enact a DREAM Act bill in the 110th and 111th Congresses were unsuccessful.95
DREAM Act bills have once again been introduced in the current Congress, both as stand-alone
measures and as parts of larger bills.96
Birthright Citizenship
Over the past decade or so, concern about illegal immigration has led some legislators to
reexamine the long-established tenet of U.S. citizenship that a person, who is born in the United
States, and subject to its jurisdiction, is a citizen of the United States regardless of the race,
ethnicity, or alienage of the parents. This concept of birthright citizenship is codified in the
Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the
INA. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in
Afghanistan fighting with Taliban forces, further heightened attention to and interest in restricting
automatic birthright citizenship. Although Hamdi’s parents were Saudi nationals in the United
States on nonimmigrant work visas, Hamdi was a U.S. citizen by right of his birth in Louisiana
and arguably entitled to rights not available to foreign enemy combatants.
In the 112th Congress, some Members have supported introducing legislation that would revise or
reinterpret the Citizenship Clause to address concerns that (1) children born to unauthorized
aliens become an avenue to legal status for their parents and siblings when they turn 21 years old,
and (2) affluent pregnant foreigners come to the United States on tourist visas to give birth to
their children and thus provide them with U.S. citizenship.97 Several bills have been introduced to
amend the Constitution and/or the INA to exclude persons born in the United States from
citizenship at birth if their parents were unlawfully present in the United States or were
nonimmigrant aliens.98 In order for a child to be a citizen at birth under these proposals, at least
one parent would have to be a U.S. national, an LPR who resides in the United States, or an alien
serving on active duty in the U.S. Armed Forces.
94 For analyses of these bills, see Ibid.
95 See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno.
96 See, for example, H.R. 1842, S. 952, and S. 1258 (Title I, Subtitle A, Part IV).
97 See, for example, Daniel González, “Births by U.S. visitors: A real issue? Data indicate ‘birth tourism’ is not a
widespread practice,” The Arizona Republic, August 17, 2011, http://www.azcentral.com/news/articles/2011/08/17/
20110817births-by-us-visitors-smaller-issue.html.
98 See, for example, H.R. 140, §301 of H.R. 1196, S. 723, and S.J.Res. 2. For further information, see CRS Report
RL33079, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, by
Margaret Mikyung Lee.
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Furthermore, some state legislators have voiced support for state legislation that would define
state citizenship as excluding persons born to undocumented aliens and for a state compact under
which states would issue a different type of birth certificate to such persons. State legislators from
Arizona and 13 other states unveiled model legislation in January 2011, intending to set the stage
for a U.S. Supreme Court review of the Citizenship Clause.99 Such legislation has been
introduced in some states but has not been enacted.100
Commonwealth of the Northern Mariana Islands
Title VII of P.L. 110-229 made the INA applicable to the Commonwealth of the Northern Mariana
Islands (CNMI), a U.S. territory in the Pacific. Previously, in accordance with an agreement
known as the Covenant101 that sets forth the relationship between the CNMI and the United
States, the CNMI had not been subject to U.S. immigration law. Among other provisions, P.L.
110-229 established a transition period for implementing the INA in the CNMI that began on
November 28, 2009. It aimed, in particular, to provide federal regulation and oversight of the
admission of foreign workers to the CNMI, including by establishing a CNMI-only transitional
worker visa. Aliens who were not eligible for the transitional foreign worker visas were able to
remain in the CNMI on entry permits issued under the former territorial immigration laws until
the earlier of the original permit expiration date or November 28, 2011.102
In the 112th Congress, H.R. 1466 would resolve the status of certain long-term foreign residents
of the CNMI who otherwise may not be able to remain in the territory after November 28, 2011.
The bill was reported by the House Natural Resources Committee, while the House Judiciary
Committee discharged it without a report. Some long-term foreign residents of the CNMI have
U.S. citizen spouses and children who, for various reasons, are unable to sponsor them for U.S.
immigrant status. For example, some have U.S. citizen spouses and adult sons or daughters who
are eligible to file a family-based immigrant petition on their behalf; however, due to the
economic conditions in the CNMI, many citizens apparently are unable to satisfy the requisite
household income level for sponsoring a relative as an immigrant under U.S. law. Other long-
term foreign residents were granted permanent resident status in the CNMI under former
territorial immigration laws, but this status will no longer be valid under federal immigration law
after November 28, 2011. Still other persons who were born in the CNMI were not eligible for
U.S. citizenship under the terms of the Covenant. As reported, H.R. 1466 would authorize
admission of these various long-term foreign residents, subject to certain requirements, as
99 State Rep. Daryl Metcalfe, State Legislators for Legal Immigration, “State Lawmakers Convened in D.C. to Deliver
Historic, Nationwide Correction of 14th Amendment Misapplication,” January 5, 2011,
http://www.statelegislatorsforlegalimmigration.com/NewsItem.aspx?NewsID=10195; Associated Press, “Lawmakers in
14 States Craft Bill to Deny Citizenship to ‘Anchor Babies’,” October 19, 2010, listed the 13 other states as Alabama,
Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, Pennsylvania,
Texas, and Utah, at http://www.foxnews.com/politics/2010/10/19/lawmakers-states-craft-deny-citizenship-anchor-
babies/?test=latestnews. Some legal scholars think it is unlikely the Supreme Court will hear such a case. Valeria
Fernández, “Birthright Citizenship’s Unlikely Road to Supreme Court,” New America Media, December 22, 2010,
http://newamericamedia.org/2010/12/birthright-citizenships-unlikely-road-to-supreme-court.php.
100 For example, Arizona S.B. 1308, 50th Leg., 1st Reg. Sess., failed to pass in the State Senate on March 17, 2011.
101 The Covenant To Establish a Commonwealth of the Northern Mariana Islands In Political Union with the United
States of America, codified at 48 U.S.C. §1801 note.
102 The CNMI had issued so-called “umbrella permits,” valid through November 28, 2011, to most persons who had a
valid permit expiring earlier.
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immigrants to the CNMI only, and provide a path for most of these CNMI-only residents to adjust
later to regular LPR status.
On November 23, 2011, USCIS announced that certain prospective beneficiaries of H.R. 1466,
namely immediate relatives of U.S. citizens and certain persons born in the CNMI who did not
receive U.S. citizenship (also their spouses and unmarried children under 21 years old), would be
eligible for parole. Parole would be granted on a case-by-case, discretionary basis and would
permit recipients to stay lawfully in the CNMI.103 On December 9, 2011, USCIS issued guidelines
clarifying that a grant of parole based on an application filed on or before January 31, 2012,
would be backdated to November 27, 2011. If parole is denied, unlawful presence would accrue
after the expiration of the CNMI permit on November 27, 2011. A grant of parole based on an
application filed after January 31, 2012, would be valid from the date of grant, so unlawful
presence would accrue after the expiration of the CNMI permit on November 27, 2011, until the
date for the grant of parole. The maximum grant would be until December 31, 2012. Reportedly,
the CNMI government is considering challenging the new USCIS parole policy for some of the
bill’s beneficiaries, while some supporters of the bill want its benefits extended to other groups of
long-term foreign workers.104
Professional Foreign Temporary Employees
The 112th Congress is taking renewed interest in foreign temporary workers engaged in
professional occupations. One issue focuses on whether Congress should revise the immigration
law to expand temporary visas for professional specialty occupations, particularly for graduates
with degrees in science, technology, engineering, or mathematics (STEM) fields.105 Another issue
is whether other temporary visa categories, such as those designated for foreign study, cultural
exchange, and intracompany transfers, are being misused by employers unable to obtain
numerically limited professional workers visas. A corollary to these two issues is whether the
wages and working conditions of U.S. workers are adversely affected by the recruitment of
temporary foreign workers.106
Other Legislation Receiving Action
Military Service-Based Immigration Benefits
Since 2003, Congress has enacted a range of measures to facilitate naturalization and
maintenance of LPR status for military service members and their families, particularly when
103 Parole is a form of immigration relief that does not constitute formal admission into the United States but permits an
alien to come to and/or stay in the United States temporarily for humanitarian or public interest reasons. See USCIS
guidelines for parole benefitting immediate relatives of U.S. citizens in the CNMI and certain “stateless” persons born
in the CNMI, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=
2ae38614e90d3310VgnVCM100000082ca60aRCRD&vgnextchannel=
4d3314dd2b635210VgnVCM100000082ca60aRCRD.
104 Haidee V. Eugenio, “HR 1466 ready for House action; Fitial admin’s ‘tentative action’ may be lawsuit vs USCIS,”
Saipan Tribune, December 13, 2011, http://www.saipantribune.com/newsstory.aspx?newsID=114945&cat=1.
105 See, for example, H.R. 399 and H.R. 2161.
106 For related information, see CRS Report CRS Report RL33977, Immigration of Foreign Workers: Labor Market
Tests and Protections, by Ruth Ellen Wasem.
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such persons are posted abroad. In the 112th Congress, several bills have been introduced to
address additional issues that have resulted from military service. One of these bills (H.R. 398)
has been enacted as P.L. 112-58. The new law extends the time to qualify for non-conditional
LPR status to account for military service.
Under the INA, an alien who obtains LPR status through a marriage to a U.S. citizen or LPR that
was entered into less than two years earlier is initially granted LPR status on a conditional basis.
In order to have the condition removed, both spouses must jointly satisfy certain requirements
during specified periods, including appearing together at a personal interview with DHS. P.L.
112-58 tolls the time for meeting such requirements during any period in which either spouse is a
member of the U.S. Armed Forces and serving abroad in active-duty status. Although DHS had
discretion to waive the requirements in certain circumstances before the new law, it obviates the
need for discretionary waivers by tolling the time periods.
The enactment of P.L. 112-74 added a new statute, 10 U.S.C. §1790, providing for reimbursement
to USCIS by the Department of Defense of fees for processing military-service-based
naturalization applications (Div. A, §8070). Current law prohibits charging the applicants fees for
such applications.107
Wage Requirements for H-2B Temporary Employment
The H-2B visa allows for the temporary admission of foreign workers to the United States to
perform temporary nonagricultural labor or service if unemployed U.S. workers cannot be found.
H-2B employers are required to pay workers the highest of the prevailing wage rate or the
federal, state, or local minimum wage. In January 2011, DOL issued a final rule to change the
methodology for determining prevailing wage rates for the H-2B program.108 This rule has not yet
gone into effect. P.L. 112-55 (Div. B, §546) prohibited any funds made available by the act or
another act for FY2012 to be used to implement or enforce the H-2B wage rule before January 1,
2012. P.L. 112-74 contains language to prohibit any funds made available under the act to be used
to implement the rule (Div. F, §110). In response, DOL has postponed the effective date of the
new H-2B wage methodology until October 1, 2012.
107 INA §329(b)(4), regarding military-service-based naturalization during periods of hostilities, codified as amended at
8 U.S.C. §1440(b)(4):
[N]otwithstanding any other provision of law, no fee shall be charged or collected from the
applicant for filing a petition for naturalization or for the issuance of a certificate of naturalization
upon citizenship being granted to the applicant, and no clerk of any State court shall charge or
collect any fee for such services unless the laws of the State require such charge to be made, in
which case nothing more than the portion of the fee required to be paid to the State shall be charged
or collected.
See also INA §328(b)(4), regarding military-service-based naturalization during peacetime, codified as
amended at 8 U.S.C. §1439(b)(4), and 8 U.S.C. §1440e (not part of the INA), regarding prohibition on fees
charged by a federal court for military-service-based naturalization during the Vietnam and subsequent
hostilities.
108 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program,” 76 Federal Register 3452-3484, January 19, 2011.
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Author Contact Information
Andorra Bruno, Coordinator
Kate M. Manuel
Specialist in Immigration Policy
Legislative Attorney
abruno@crs.loc.gov, 7-7865
kmanuel@crs.loc.gov, 7-4477
Karma Ester
Marc R. Rosenblum
Information Research Specialist
Specialist in Immigration Policy
kester@crs.loc.gov, 7-3036
mrosenblum@crs.loc.gov, 7-7360
William A. Kandel
Alison Siskin
Analyst in Immigration Policy
Specialist in Immigration Policy
wkandel@crs.loc.gov, 7-4703
asiskin@crs.loc.gov, 7-0260
Margaret Mikyung Lee
Ruth Ellen Wasem
Legislative Attorney
Specialist in Immigration Policy
mmlee@crs.loc.gov, 7-2579
rwasem@crs.loc.gov, 7-7342
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