Comprehensive Immigration Reform in the
113th Congress: Major Legislative Proposals
Marc R. Rosenblum
Specialist in Immigration Policy
Ruth Ellen Wasem
Specialist in Immigration Policy
June 6, 2013
Congressional Research Service
7-5700
www.crs.gov
R43097
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Comprehensive Immigration Reform in the 113th Congress: Major Legislative Proposals
Summary
For several years, some Members of Congress have favored “comprehensive immigration
reform” (CIR), a label that commonly refers to omnibus legislation that includes increased border
security and immigration enforcement, expanded employment eligibility verification, revision of
nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized
aliens residing in the country.
Leaders in both chambers have identified immigration as a legislative priority in the 113th
Congress. While Members of the House reportedly have considered several different approaches
to immigration reform during the spring of 2013, debate in the Senate has focused mainly on a
single CIR bill: the Border Security, Economic Opportunity, and Immigration Modernization Act
(S. 744). This report summarizes major provisions of S. 744, as reported by the Senate Judiciary
Committee. It also discusses H.R. 1417, as reported by the House Homeland Security Committee,
a bill that focuses more narrowly on border security strategies and metrics.
CRS’s analysis focuses on eight major policy areas that encompass the U.S. immigration debate:
comprehensive reform “triggers” and funding; border security; interior enforcement; employment
eligibility verification and worksite enforcement; legalization of unauthorized aliens; immigrant
visas; nonimmigrant visas; and humanitarian provisions.
This report provides a detailed discussion of major legislation related to each of these issues. An
accompanying report, CRS Report R43099, Comprehensive Immigration Reform in the 113th
Congress: Short Summary of Major Legislative Proposals, by Marc R. Rosenblum and Ruth
Ellen Wasem, summarizes these bills, and also serves as an executive summary of this report.
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Comprehensive Immigration Reform in the 113th Congress: Major Legislative Proposals
Contents
Introduction ...................................................................................................................................... 1
Comprehensive Reform “Triggers” and Funding ............................................................................ 2
Triggers for Legalization and Adjustment to LPR Status .......................................................... 2
Comprehensive Immigration Reform Funds ............................................................................. 3
Border Security ................................................................................................................................ 4
Border Security Strategies and Metrics ..................................................................................... 5
Border Security Strategies and Metrics in S. 744................................................................ 5
Border Security Strategies and Metrics in H.R. 1417 ......................................................... 6
Border Security Personnel, Equipment, and Infrastructure ....................................................... 6
DHS Waiver Authority and Access to Federal Lands ................................................................ 7
Immigration-Related Crimes ..................................................................................................... 7
Oversight of Border Security Activities .................................................................................... 9
Entry-Exit System ..................................................................................................................... 9
Interior Enforcement ...................................................................................................................... 11
Immigration Courts ................................................................................................................. 11
Grounds of Inadmissibility, Deportability, and Relief from Removal ..................................... 13
Immigrant Detention ............................................................................................................... 14
Protection of Children during Immigration Enforcement ....................................................... 15
Additional Interior Enforcement Provisions ............................................................................ 16
Employment Eligibility Verification and Worksite Enforcement .................................................. 17
Document Verification Requirements and Document Integrity .............................................. 18
Electronic Eligibility Verification System ............................................................................... 18
Employer Protections .............................................................................................................. 19
Worker Protections .................................................................................................................. 20
Legalization of Unauthorized Aliens ............................................................................................. 22
Registered Provisional Immigrants (RPIs) .............................................................................. 22
RPI Adjustment of Status to Lawful Permanent Residence .............................................. 24
DREAM Act ............................................................................................................................ 25
Agricultural Worker Legalization ............................................................................................ 26
Adjustment of Status to Lawful Permanent Residence ..................................................... 27
Access to Federal Public Benefits ........................................................................................... 28
Immigrant Visas ............................................................................................................................. 29
Point Merit-Based Systems ..................................................................................................... 30
Merit-Based Track One ..................................................................................................... 30
Merit-Based Track Two ..................................................................................................... 31
Family-Based Immigration ...................................................................................................... 32
Employment-Based Immigration ............................................................................................ 32
Investor Visas .......................................................................................................................... 34
Changes to the EB-5 Category .......................................................................................... 34
New EB-6 Investor Visas .................................................................................................. 35
Immigrant Integration .............................................................................................................. 35
Nonimmigrant Visas ...................................................................................................................... 36
High-Skilled Workers .............................................................................................................. 37
H-1B Professional Specialty Workers ............................................................................... 37
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Comprehensive Immigration Reform in the 113th Congress: Major Legislative Proposals
L Visa Intra-Company Transferees .................................................................................... 39
Other Skilled and Professional Worker Visas .................................................................... 40
Lower-Skilled Workers ............................................................................................................ 43
Reforms to the H-2B Program .......................................................................................... 43
New Nonimmigrant Visas for Lower-Skilled Workers ..................................................... 43
Foreign Labor Contractors ................................................................................................ 47
Tourism-Related Provisions .................................................................................................... 47
New Y Visa for Retirees .................................................................................................... 48
Visa Waiver Program ......................................................................................................... 49
Other Nonimmigrant Visa Changes ......................................................................................... 49
Student Visas ..................................................................................................................... 50
Humanitarian Provisions................................................................................................................ 51
Refugee and Asylum Provisions .............................................................................................. 51
Anti-Trafficking Provisions ..................................................................................................... 52
Status for Certain Battered Spouses and Children ................................................................... 53
Contacts
Author Contact Information........................................................................................................... 54
Key Policy Staff ............................................................................................................................. 54
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Comprehensive Immigration Reform in the 113th Congress: Major Legislative Proposals
Introduction
For several years, some Members of Congress have favored “comprehensive immigration
reform” (CIR), a label that commonly refers to omnibus legislation that includes increased border
security and immigration enforcement, expanded employment eligibility verification, revision of
nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized
aliens residing in the country.1 Other Members of Congress may favor addressing these issues
sequentially (e.g., by implementing enforcement provisions prior to legalization), and/or may
disagree with the legalization and increased legal immigration provisions that have been features
of major CIR bills. Still others may be interested in legislating on some elements of CIR but not
others.2
Leaders in both chambers have identified immigration as a legislative priority in the 113th
Congress. While Members of the House reportedly have considered several different approaches
to immigration reform during the spring of 2013, debate in the Senate has focused mainly on a
single CIR bill: the Border Security, Economic Opportunity, and Immigration Modernization Act
(S. 744). As introduced on April 16, 2013, S. 744 was the product of months of negotiations
among four Democratic and four Republican Senators—the bill’s original co-sponsors—a group
widely described as the “Gang of 8.”3
The Senate Judiciary Committee held three days of hearings on S. 744 in April 2013 and then
marked up the bill over five days in May, favorably reporting the bill by a vote of 13-5 on May
21, 2013. The House Homeland Security Committee also reported favorably on the Border
Security Results Act of 2013 (H.R. 1417) on May 20, 2013; H.R. 1417 focuses exclusively on
border security strategies and metrics. In addition, the House Judiciary Committee held hearings
on a pair of immigration bills related to employment verification (H.R. 1772) and temporary
agricultural worker visas (H.R. 1773). This report summarizes major provisions of S. 744, as
reported by the Senate Judiciary Committee. It also discusses H.R. 1417, as reported (H.Rept.
113-87) by the House Homeland Security Committee. This report will be updated to reflect
additional major legislative developments as they occur.
CRS’s analysis focuses on eight major policy areas that encompass the U.S. immigration debate:
comprehensive reform “triggers” and funding; border security; interior enforcement; employment
eligibility verification and worksite enforcement; legalization of unauthorized aliens; immigrant
visas; nonimmigrant visas; and humanitarian provisions.
1 Previous bills include the Comprehensive Immigration Reform Act of 2006 (S. 2611 as passed by the Senate in 109th
Congress), and the Comprehensive Immigration Reform Act of 2007 (S. 1639 as considered by the Senate in 110th
Congress). For a fuller discussion see CRS Report R42980, Brief History of Comprehensive Immigration Reform
Efforts in the 109th and 110th Congresses to Inform Policy Discussions in the 113th Congress, by Ruth Ellen Wasem.
2 For example, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437 as passed
by the House in 109th Congress) was an omnibus immigration enforcement bill that did not include legalization
provisions or changes to the legal immigration system. See Ibid.
3 Members included Senator Michael Bennet (D-CO), Senator Richard Durbin (D-IL), Senator Jeff Flake (R-AZ),
Senator Lindsey Graham (R-SC), Senator John McCain (R-AZ), Senator Robert Menendez (D-NJ), Senator Marco
Rubio (R-FL), and Senator Charles Schumer (D-NY).
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Comprehensive Reform “Triggers” and Funding4
Some Members of Congress have raised concerns about proposals for comprehensive
immigration reform on the grounds that the “bargain” some people see at the heart of such
reform—tougher enforcement on the one hand and legalization5 plus visa reforms on the other—
may be difficult to enforce. Some argue, for example, that while supporters of the 1986
Immigration Reform and Control Act (IRCA)6 promised that a one-time legalization, increased
border enforcement, and a prohibition against employing unauthorized workers would solve the
problem of illegal migration, some of IRCA’s immigration enforcement provisions were
incompletely implemented.7 Partly to allay these concerns, the first sections of S. 744 would
make implementation of certain enforcement provisions pre-conditions for the bill’s legalization
provisions;8 and S. 744 would directly appropriate funding for certain enforcement measures.
Triggers for Legalization and Adjustment to LPR Status
Section 3 of S. 744 establishes two sets of triggers for the bill’s legalization and adjustment of
status9 provisions.10
• First, the Department of Homeland Security (DHS) may only commence
processing applications for registered provisional immigrant (RPI) status (see
“Registered Provisional Immigrants (RPIs)”) after DHS notifies Congress that
the department has begun to implement a new Comprehensive Southern Border
Security Strategy (Comprehensive Security Strategy) and Southern Border
Fencing Strategy (Fencing Strategy) mandated by Section 5 of S. 744 (see
“Border Security Strategies and Metrics in ”).11 DHS would be required to begin
implementing the Comprehensive Security Strategy within 180 days after the
bill’s enactment.12 Based on the interplay between the triggers in Section 3 and
other provisions of the bill,13 it appears that aliens likely could begin applying for
RPI status within a year of the bill’s enactment.
4 CRS Legislative Attorney Michael John Garcia contributed to this section of the report.
5 “Legalization” typically refers to policies to enable unauthorized aliens to become legal permanent residents; see CRS
Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by Andorra Bruno.
6 P.L. 99-603.
7 See for example, U.S. Congress, House Judiciary Committee, S. 744 and the Immigration Reform and Control Act of
1986: Lessons Learned or Mistakes Repeated?, 113th Cong., 1st sess., May 22, 2013.
8 Certain sections prior to Title I of the Border Security, Economic Opportunity, and Immigration Modernization Act
(S. 744) concern border security; these provisions are discussed in the “Border Security” section of this report.
9 Adjustment of status is the process of becoming a legal permanent resident (LPR) while in the United States.
10 Title II of S. 744 includes additional requirements and timelines for legalization and adjustment of status
applications.
11 S. 744 §3(c)(1).
12 S. 744 §5(a)(1). The Department of Homeland Security (DHS) would be required to prepare both the Comprehensive
Security Strategy and the Fencing Strategy within 180 days of enactment of S. 744; but the bill only specifies an
implementation timeline (i.e., immediately after the strategy is submitted) for the Comprehensive Security Strategy.
13 See S. 744 §2101 (amending the INA to permit certain aliens to adjust to RPI status, but only allowing DHS to
accept such applications following the publication of a final rule in the Federal Register); §2110 (requiring
promulgation and publication of interim final regulations to implement adjustment provisions within one year of bill’s
enactment).
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• Second, Section 3 generally provides that DHS may not begin adjusting the status
of persons from RPI to legal permanent resident (LPR)14 until certain “triggers”
are met. Specifically, the DHS Secretary must certify that four benchmarks have
been reached: (1) the Comprehensive Southern Border Security Strategy has been
submitted and is “substantially deployed and substantially operational”; (2) the
Southern Border Fencing Strategy has been submitted and implemented and is
“substantially completed”; (3) DHS has implemented a mandatory employment
verification system to be used by all employers (see “Interior Enforcement”); and
(4) an electronic exit system to collect machine readable data is being used at air
and sea ports of entry (see “Entry-Exit System”).15
The bill also describes an exception to these trigger provisions. If 10 years have elapsed since the
bill’s enactment and these benchmarks have not been met due to litigation, a Supreme Court
ruling that implementation is unconstitutional, or a “force majeure,”16 the Secretary shall permit
RPIs to apply for LPR status.17 It is not clear, however, whether allowing such applications under
this condition means that DHS would be permitted to adjust applicants to LPR status, or whether
the previous sub-paragraph would prevent DHS from completing such adjustments until the
benchmarks are met.18
These triggers would not apply to adjustment of status for certain aliens who entered the United
States as children (i.e., DREAMers) under Section 2103 of the bill or for aliens granted
agricultural “blue card” status under Section 2201 of the bill. The timeline for these groups to
adjust status is described in those two sections (see “DREAM Act” and “Agricultural Worker
Legalization”).
Comprehensive Immigration Reform Funds
Section 6 of S. 744 would establish a Comprehensive Immigration Reform Trust Fund and a
Comprehensive Immigration Reform Startup Account. The Trust Fund would include $8.3 billion
in initial funds transferred from Treasury’s general fund,19 and subsequently would receive
ongoing funding from several immigration-related fees and penalties.20 The Startup Account
would include $3 billion in initial appropriations.21 Initial transfers and appropriations from the
general fund would be repaid from immigration fees and penalties added by the bill, with money
that is deposited back in the general fund to be used for federal budget deficit reduction.22
14 Legal permanent residents (LPRs) are foreign nationals who come to live lawfully and permanently in the United
States; see CRS Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by
Andorra Bruno; and CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview, by
Ruth Ellen Wasem.
15 S. 744 §3(c)(2)(A).
16 S. 744 does not define force majeure, but the term generally suggests a failure to meet the objectives, despite acting
in good faith, for reasons beyond the DHS Secretary’s control.
17 S. 744 §3(c)(2)(B).
18 For further discussion of the triggers in §3, see CRS Sidebar WSLG511, How Do the Enforcement-Related
“Triggers” in the Senate Immigration Bill Work? Interpretations May Vary, by Michael John Garcia.
19 S. 744 §6(a)(2)(A).
20 S. 744 §6(a)(2)(B).
21 S. 744 §6(b)(2).
22 Pursuant to S. 744 §6(a)(3)(B), funds initially transferred to the Trust Fund would be repaid from immigration fees
(continued...)
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From the initial $8.3 billion appropriated to the Trust Fund, the bill would authorize the following
spending:23
• $3 billion over a five-year period for DHS to carry out the Comprehensive
Security Strategy;
• $2 billion over a 10-year period for DHS to enact recommendations of the
Southern Border Security Commission;
• $1.5 billion over a five-year period for DHS to procure and deploy fencing,
infrastructure, and technology pursuant to the Fencing Strategy, with not less than
$1 billion being used to deploy, repair, or replace fencing;
• $750 million over a six-year period for DHS to expand and implement the
mandatory employment eligibility verification system in INA Section 274A as
amended by Section 3101 of the bill (see “Employment Eligibility Verification
and Worksite Enforcement”);
• $900 million over an eight-year period for the Department of State to pay for
one-time and startup costs to implement the bill; and
• $150 million over a two-year period to be transferred to the Departments of
Labor, Agriculture, and Justice for their initial costs of implementing the bill.
After the Treasury has been repaid out of ongoing Trust Fund revenues for the initial $8.3 billion
transfer, $500 million of ongoing funding would be available over five years to pay for increased
border-crossing prosecutions in the Tucson sector and to fund Operation Stonegarden (see
“Immigration-Related Crimes”).24 Additional ongoing collections would be used, subject to
appropriations, to provide such sums as may be necessary to carry out the authorization included
in S. 744, including operations and maintenance of border security and immigration enforcement
investments.25 The Startup Account would be used to pay for one-time and startup costs related to
the act.26 Expenditure plans relating to these funds and accounts would be required.
Border Security27
S. 744 includes a number of sections apparently designed to strengthen border security, including
mandates for new border security strategies (which also would be required by H.R. 1417);
increased border security personnel, equipment, and infrastructure; DHS waiver authority and
access to certain federal lands; provisions related to immigration-related crimes and prosecutions;
(...continued)
and penalties designated as ongoing funding to the Trust Fund under S. 744 §6(a)(2)(B). Pursuant to S. 744
§6(b)(3)(A), initial appropriations to the Startup account would be repaid out of one half of the processing fees
collected from RPIs applying for legalization under INA §245B(c)(10)(A) as added by §2101 of the bill.
23 S. 744 §6(a)(3)(A).
24 S. 744 §§6(a)(3)(B)-(C).
25 S. 744 §6(a)(3)(D).
26 S. 744 §6(b)(4).
27 CRS Legislative Attorney Michael John Garcia contributed to this section of the report.
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and efforts to strengthen the entry-exit system. The bill also includes a number of provisions to
strengthen oversight of border security activities.
Border Security Strategies and Metrics
Both S. 744 as reported by the Senate Judiciary Committee and H.R. 1417 as reported by the
House Homeland Security Committee would direct DHS to develop new metrics and strategies to
measure and achieve control of the southwest border. H.R. 1417 focuses exclusively on these
strategies and metrics, and the bill only is discussed in this section of this report.
Border Security Strategies and Metrics in S. 744
In the case of S. 744, DHS would be required to submit to Congress a “Comprehensive Southern
Border Security Strategy” (Comprehensive Security Strategy) and to establish a “Southern Border
Fencing Strategy” (Fencing Strategy), both within 180 days of enactment.28 The Comprehensive
Security Strategy would describe plans to achieve and maintain “effective control” of all sectors
along the Southern border. “Effective control” is defined in Section 3 to include “persistent
surveillance” and at least a 90% “effectiveness rate”; and the effectiveness rate is defined as the
sum of alien apprehensions and turn backs divided by total illegal entries.29 DHS would be
required to implement the Comprehensive Security strategy beginning immediately after its
submission, and to report on it semiannually. The Fencing Strategy would identify locations along
the Southern border, including ports of entry, where fencing, infrastructure, and technology
should be deployed. DHS would be required to notify Congress upon commencing
implementation of the Fencing Strategy. Implementation of these strategies would be a “trigger”
for legalization provisions in S. 744 (see “Triggers for Legalization and Adjustment to LPR
Status”).
In addition, if DHS certifies that it has not achieved effective control of all Southern border
sectors during any fiscal year within five years of the bill’s enactment, Section 4 of S. 744 would
establish a Southern Border Security Commission (Commission).30 The Commission would be
composed of the governor of each Southern border state or her appointee, as well as members
appointed by each house of Congress and the President. The Commission would be required to
issue a report making recommendations on how to achieve and maintain border security goals,
and would terminate after the issuance of the report. As noted elsewhere (see “Comprehensive
Immigration Reform Funds”), initial appropriations to the Trust Fund would be dedicated to
implementing DHS’s two border strategies as well as the recommendations of the Commission.
28 S. 744 §5.
29 For a fuller discussion of border security metrics, see CRS Report R42138, Border Security: Immigration
Enforcement Between Ports of Entry, by Marc R. Rosenblum.
30 S. 744 §4. The language in §4 appears to suggest that the Commission would be established after any year during the
first five years in which some border sectors are not under effective control; but some Member statements during the
Senate Judiciary Committee markup of S. 744 suggest an understanding that the Commission would be established
after five years if control has not been established.
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Border Security Strategies and Metrics in H.R. 1417
The Border Security Results Act of 2013 (H.R. 1417), as reported by the House Homeland
Security Committee on May 20, 2013, also would direct DHS to submit to Congress within 180
days a comprehensive strategy and implementation plan for gaining and maintaining control of
the border. The strategy under the House bill would aim to achieve “operational control,” defined
as in the Senate bill to include a 90% effectiveness rate. The strategy in H.R. 1417 initially would
focus on “high traffic areas,” defined to mean Border Patrol sectors with “the most illicit cross-
border activity”; and would aim to achieve operational control of the entire Southwest border
within five years. In contrast with S. 744, H.R. 1417 also would require DHS to develop new
border security metrics for securing the border between ports of entry, at ports of entry, and in the
maritime environment; and border metrics in H.R. 1417 would incorporate information about a
wide range of border-related threats and issues, including illicit drug flows, alien recidivism rates,
and border crossing wait times, among other issues. The bill also would require DHS and the
Government Accountability Office to report on the new strategy and on whether or not DHS has
achieved and maintained operational control within the deadlines established by H.R. 1417.31
Border Security Personnel, Equipment, and Infrastructure
Sections 1102-1109 of Title I of S. 744 would expand certain border enforcement programs and
authorize border security funding. These sections would supplement previous related investments
by DHS and the legacy Immigration and Naturalization Service (INS).32 The bill would require
U.S. Customs and Border Protection (CBP) to add 3,500 trained CBP officers by the end of
FY2017.33 It would authorize the National Guard, operating under Title 32 authority (i.e.,
remaining under the authority of state governors while receiving federal pay and benefits), to
assist border security efforts, including through the construction of fencing and other
infrastructure, the deployment of surveillance aircraft, and by assisting CBP operations in rural,
high-trafficked areas.34 Section 1104 would authorize funding for additional border patrol forward
operating bases and other infrastructure, and would establish a grant program for the construction
and improvement of infrastructure to facilitate border crossings. DHS would be directed to deploy
manned and unmanned aircraft and other surveillance equipment to ensure “continuous
surveillance” of border areas, with necessary funding authorized for FY2014-FY2018.35 A grant
program would be established and funding authorized to improve 9-1-1 service in rural areas; and
funding also would be authorized to improve radio communication among border-area law
enforcement agencies.36 Section 1109 would direct the Department of Defense (DOD) and DHS
officials to identify DOD equipment and technology that could be used by CBP at the border.
31 The Border Security Results Act of 2013 (H.R. 1417).
32 For a fuller discussion of previous investments in border enforcement and the current state of border security, see
CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
33 S. 744 §1102.
34 S. 744 §1103.
35 S. 744 §1106.
36 S. 744 §1107.
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DHS Waiver Authority and Access to Federal Lands
In general, federal agencies are required to review the potential impact of proposed projects on
national and/or cultural resources prior to committing resources to a project.37 These
environmental and other review requirements may delay the construction of certain border
barriers and other infrastructure; but existing law grants DHS broad authority to waive legal
requirements that might delay construction of border barriers.38 S. 744 would grant the DHS
Secretary authority to waive any law she determines necessary to ensure expeditious construction
of barriers, roads, and other infrastructure to secure the Southern border.39 This provision is
similar to existing waiver authority, but only applies to projects along the Southern border, and
potentially applies to a broader range of border infrastructure projects than the waiver authority in
current law. The Secretary must identify and justify each law being waived; and the waiver would
terminate upon certification that the Comprehensive Security and Fencing Strategy requirements
for RPIs to adjust to LPR status have been satisfied (see “Triggers for Legalization and
Adjustment to LPR Status”). Judicial review of action taken pursuant to this authority is limited.
The Southwest border includes extensive federal lands; and some have been identified as “high-
risk areas for … marijuana smuggling and illegal migration.”40 DHS has entered into Memoranda
of Understanding with the U.S. Department of Agriculture and the Department of the Interior
governing CBP access to federal lands, among other topics.41 Some Members of Congress have
argued that DHS should have more complete access to such lands for enforcement purposes.42
Under Section 1105 of S. 744, the Secretaries of Agriculture and the Interior would be required to
provide CBP with immediate access to federal lands within 100 miles of the southern Arizona
border for certain border security activities. These activities would be conducted “to the
maximum extent practicable” to protect natural and cultural resources. Environmental impact
statements would be issued in accordance with the National Environmental Policy Act of 1969,43
but the impact statements would not restrict or delay DHS actions on federal lands.
Immigration-Related Crimes
Certain aliens apprehended at the border and others involved in facilitating illegal migration may
face immigration-related criminal charges under current law (also see “Interior Enforcement”).
Several sections in Title III of S. 744 would modify these laws. The bill would rewrite INA
Section 275 (unlawful entry) to increase civil and misdemeanor penalties for first-time offenses,
impose felony penalties when aggravating circumstances exist (e.g., re-entry following a
37 See, among other laws, the National Environmental Policy Act of 1969 (42 U.S.C. §§4321 et seq.), the Endangered
Species Act of 1973 (16 U.S.C. §§1531 et seq.), and the National Historic Preservation Act (16 U.S.C. §§470 et seq.).
38 For a fuller discussion, see CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
39 S. 744 §3(d).
40 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, p. 15.
41 For a fuller discussion of border security on public lands see CRS Report R42346, Federal Land Ownership:
Overview and Data, by Carol Hardy Vincent, Laura A. Hanson, and Marc R. Rosenblum.
42 See for example, U.S. Congress, House Committee on Natural Resources, Subcommittee on National Parks, Forests,
and Public Lands, The Border: Are Environmental Laws and Regulation Impeding Security and Harming the
Environment? 112th Cong., 1st sess., April 15, 2011.
43 42 U.S.C. §§4321 et seq.
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voluntary departure order), and also to eliminate criminal liability for attempted unlawful entry.44
The bill would amend INA Section 276 (unlawful reentry) to increase criminal penalties, provide
affirmative defenses to certain aliens who had been removed as minors, and exempt certain
offenses involving emergency humanitarian assistance.45 Additionally, S. 744 would create new
felony offenses relating to the commercial smuggling of five or more people, impose criminal
penalties for hindering or obstructing alien apprehensions, and impose enhanced penalties for use
of a firearm in an alien smuggling offense.46 With respect to these border-related crimes, S. 744
would require guidelines to delay prosecutions against aliens seeking humanitarian relief from
removal or immigration status until such adjudications are completed.47 S. 744 also would
increase civil penalties for aircraft or vessel operators who fail to detain or transport out of the
country unauthorized aliens that were transported by the operator into the country.48
Title III of S. 744 also would rewrite chapter 75 of the U.S. Criminal Code (passport and
immigration-related document fraud), expanding its scope and increasing penalties for certain
offenses.49 The U.S. Sentencing Commission would be required to reexamine minimum
sentencing guidelines for fraud-related offenses.50 DHS would be required to establish rules to
deter fraud in the preparation of immigration documents.51 And S. 744 would impose new
criminal penalties for drug cultivation on federal lands.52
Historically, most aliens apprehended at the border have been repatriated to their country of
origin without facing criminal charges, but DHS has worked with the Department of Justice
(DOJ) to charge a higher proportion of people apprehended at the border.53 Title I of S. 744
includes several provisions to support this goal. Section 1104 would provide funding from the
Trust Fund to support increased prosecutions in the Tucson sector, including through the
appointment of attorneys, staff, and federal district court and magistrate judges.54 Trust Fund
funding also would reimburse sub-federal and tribal jurisdictions for detention costs relating to
those prosecutions; and would fund competitive grants to sub-federal and tribal border-area law
enforcement agencies through Operation Stonegarden,55 with the proviso that at least 90% of such
grants would reimburse immigration enforcement and drug smuggling expenses.56 In addition, the
44 S. 744 §3704.
45 S. 744 §3705.
46 S. 744 §3712.
47 S. 744 §3710.
48 S. 744 §3706. The bill would include a humanitarian exemption from these penalties.
49 S. 744 §3707.
50 S. 744 §3710.
51 S. 744 §3708.
52 S. 744 §3306.
53 See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
54 Since the late 1990s, the Tucson sector has accounted for the largest share of unauthorized aliens apprehended along
the Southwest border; and it is also the sector in which CBP initiated the “Consequence Delivery System,” which
emphasizes criminal prosecutions for immigration-related crimes as a strategy to reduce recidivism. See Ibid. As
introduced, the bill would have added magistrate judges, but no district judges. As amended during markup, §1104 also
would direct the President to appoint 8 new district court judges, divided among California, Texas, and Arizona.
District court judges would not be funded by the Comprehensive Immigration Reform Trust Fund.
55 Operation Stonegarden is a grant program administered by the Federal Emergency Management Agency (FEMA)
within DHS to provide funding to state, local, and tribal law enforcement agencies for border security activities.
56 S. 744 §1104.
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Attorney General would be required to reimburse sub-federal governments for costs related to the
prosecution, detention, and other associated costs of federally initiated criminal cases that are
declined by U.S. Attorneys, as long as the underlying apprehensions were lawfully conducted,
with appropriations authorized for FY2014-FY2018.57 And Section 1110 would modify and
reauthorize through FY2015 the State Criminal Alien Assistance Program (SCAAP), which
reimburses state prisons and local jails for the cost of detaining certain criminal aliens.
Oversight of Border Security Activities
Other provisions in Title I of S. 744 concern oversight of border security activities. DHS would
be required to work with DOJ to issue new rules governing the use of force by DHS personnel, as
well as procedures to review the use of force, investigate complaints, and discipline those who
violate such rules.58 Section 1112 would require DHS to provide border personnel specialized
training to identify fraudulent documents, respect individual rights, and comply with use of force
rules; and DHS would be required to provide specialized training for border community liaison
officers and to establish standards for the humane treatment of children in CBP custody (also see
“Protection of Children during Immigration Enforcement”). An independent task force consisting
of Northern and Southern border-area stakeholders would be established to review border
enforcement and make recommendations.59 A new Ombudsman for Immigration Related
Concerns would be charged with monitoring immigration and enforcement policies of CBP, U.S.
Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services
(USCIS); recommending policy changes; and assisting victims of crime or violence committed by
aliens along the border, among other responsibilities.60 DHS also would be required to establish
procedures to ensure that apprehended families of arriving aliens remain united, when feasible,61
and that aliens deported or removed to Mexico are repatriated during daylight hours under most
circumstances.62 Several new DHS reports would be required to help Congress monitor these and
other border-related issues.63
Entry-Exit System
Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA, P.L. 104-208, Div. C) required development of an automated entry-exit system that
collects records of alien arrivals and departures and that analyzes such records to identify
nonimmigrants who overstay their visas. Subsequent legislation has revised and expanded this
entry-exit requirement on several occasions, but the system has never been fully implemented.64
57 S. 744 §1108.
58 S. 744 §1111.
59 S. 744 §1113.
60 S. 744 §1114.
61 S. 744 §1115.
62 S. 744 §1121.
63 S. 744 §§1114, 1115, 1116, 1119, 1121.
64 For a fuller discussion see CRS Report R42985, Issues in Homeland Security Policy for the 113th Congress,
coordinated by William L. Painter.
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The existing system collects and stores biographic data (i.e., names, birthdates, and other
identifying information) and biometric data (i.e., fingerprints and digital photographs) about
aliens traveling to and from the United States. The system has been operational at almost all U.S.
ports of entry since December 2006, and it has collected biometric data since January 2009 from
non-citizens entering through air and seaports and from non-citizens subject to secondary
inspection at land ports.65 Most aliens entering at land ports only provide biographic information,
however. And although DHS has tested pilot programs to capture biometric exit data at air and
land ports, the current exit system is limited to biographic data, and also is limited to airports and
seaports.66 Under an agreement with Canada, the United States is scheduled to collect biographic
data from third country nationals exiting via northern border lands beginning in June 2013.67
S. 744 includes several provisions apparently intended to create a more robust exit tracking
system. The bill would require DHS, by December 31, 2015, to establish a biographic exit system
that collects machine-readable passport and other travel information (i.e., biographic data) for all
aliens exiting from air and sea ports.68 As noted elsewhere, the implementation of this system
would be a pre-condition for the implementation of the adjustment of status provisions for RPIs
in S. 744 (see “Triggers for Legalization and Adjustment to LPR Status”).69 Air and sea carriers
would be responsible for collecting passenger exit data in a secure manner and for transmitting
the information to DHS; and $500 million would be appropriated to reimburse carriers for such
data collection.70 In addition, DHS would be required, within two years of enactment, to establish
a biometric exit system at the 10 U.S. airports with the greatest volume of international air
travel.71 The U.S. Government Accountability Office (GAO) would be required to review the
program, and DHS would be required within six years to expand biometric exit data collection to
30 airports, and to develop a plan to expand the system to major land and sea ports.72
Exit data would be fully integrated and interoperable with other DHS immigration databases,
DOJ immigration enforcement databases, and Department of State (DOS) Consular Affairs
databases. Section 3303(c) of S. 744 also would require DHS to ensure that information about
overstays is shared across DHS and other federal law enforcement agencies, and that “reasonably
available enforcement resources are employed’’ to locate and commence removal proceedings
against visa overstayers identified by the entry-exit system. In addition, Section 3711(b) would
make the withholding of information for biometric screening a basis for inadmissibility.
65 Ibid.
66 For a fuller discussion, see Ibid.; and CRS Report R42644, Department of Homeland Security: FY2013
Appropriations, coordinated by William L. Painter.
67 CRS briefing with DHS Office of Congressional Affairs, April 3, 2013.
68 S. 744 §3303(a)(1).
69 S. 744 §3(c)(2)(A)(iv).
70 S. 744 §3304.
71 S. 744 §3303(a)(2).
72 S. 744 §§3303(a)(3)-(5).
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Interior Enforcement73
The immigration rules established by the INA are supplemented by an enforcement regime to
deter and punish violations of those rules. Violations may be subject to criminal penalties (see
“Immigration-Related Crimes”), civil fines, and/or may be grounds for an alien to be removed
from the country. With respect to the latter, the INA identifies two overarching reasons aliens may
be ordered removed: grounds for inadmissibility and grounds for deportability.74 The standard
removal process, described in INA Section 240, is a civil administrative proceeding before an
immigration judge from the DOJ Executive Office for Immigration Review (EOIR). In some
cases, immigration judges may grant certain forms of relief during the removal process, though
their discretion is limited with respect to certain grounds for removal.
Provisions in S. 744 would amend the INA’s interior enforcement provisions in several ways.
Subtitle E of Title III would provide additional resources to immigration courts (see “Immigration
Courts”). The bill would create additional grounds of inadmissibility and deportability, while also
broadening judges’ discretion to waive certain such grounds (see “Grounds of Inadmissibility,
Deportability, and Relief from Removal”). S. 744 also would encourage alternatives to detention
and strengthen DHS detention standards as well as congressional oversight of immigrant
detention (see “Immigrant Detention”). Subtitle H of Title III of S. 744 establishes special
procedures to protect children who are affected by immigration enforcement (see “Protection of
Children during Immigration Enforcement”). And other provisions in Title III address several
additional aspects of immigration enforcement within the United States (see “Additional Interior
Enforcement Provisions”).
Immigration Courts75
With increased immigration removals in recent years, many immigration courts have seen growth
in their hearing dockets, and aliens in removal proceedings may face wait times of months or
even years in certain jurisdictions.76 Some Members of Congress have expressed concerns about
long removal wait times for some non-detained aliens placed in removal proceedings before
EOIR.77 Some also have expressed concern that, because removal is a civil proceeding, aliens are
73 CRS Legislative Attorney Michael John Garcia and CRS Specialist in Immigration Policy Alison Siskin contributed
to this section of the report.
74 INA §§212 and 237, respectively. Historically, the INA included separate provisions governing the “exclusion” of
aliens who were ineligible to enter the country (i.e., “excludable” persons), and the “deportation” of certain aliens
within the United States (“deportable” persons). The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA, P.L. 104-208, Div. C), created a single proceeding to cover both types of “removable” aliens.
Nonetheless, the INA retains two separate grounds for removal: (1) for an alien who has not been admitted to the
United States and is inadmissible under INA §212, and (2) for an alien who has been admitted to the United States (i.e.,
enters legally) and is deportable under INA §237.
75 CRS Legislative Attorney Margaret Mikyung Lee, and CRS Specialist in Immigration Policy Alison Siskin
contributed to this section of the report.
76 U.S. Congress, Senate Committee on the Judiciary, Improving Efficiency and Ensuring Justice in the Immigration
Court System, Testimony of the American Immigration Lawyers Association, 112th Cong., 1st sess., May 18, 2011.
77 See for example, U.S. Congress, Senate Judiciary Committee, “Building an Immigration System Worthy of
American Values,” March 20, 2013.
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not guaranteed legal counsel (though aliens do have a right to counsel at no expense of the
government), and some aliens may not be competent to represent themselves.78
S. 744 apparently seeks to address these concerns, and generally to ensure that aliens in removal
proceedings have adequate opportunities to seek relief. The bill would increase the number of
immigration judges by 75 per year for FY2014 through FY2016, and would also increase the
number of immigration staff attorneys, paralegals, and Board of Immigration Appeals (BIA) staff
attorneys.79 S. 744 would also provide statutory authority for the BIA (currently established
through regulations);80 codify certain standards for immigration judge and BIA decisions;81
require EOIR to review and improve training programs for immigration judges, BIA members,
and their staffs;82 and require EOIR to ensure adequate resources and services during immigration
proceedings.83 Funding would be appropriated from the CIR Trust Fund to support the new
personnel increases, training, and technology.84
Funding also would be appropriated for a pair of programs to enhance aliens’ representation
during removal proceedings. The Attorney General (AG) would be authorized to provide counsel
to aliens in such proceedings at the AG’s sole and unreviewable discretion. And the AG would be
required to provide counsel, at government expense if necessary, for unaccompanied alien
children, persons determined to be legally incompetent due to a serious mental disability, and
certain other vulnerable persons.85 The AG also would be required to maintain an Office of Legal
Access Programs within EOIR. The Office would develop legal orientation programs to educate
alien detainees and other aliens in removal and asylum proceedings about their rights and to
improve access to counsel, including in some cases at government expense.86 The AG also would
assume responsibility, pursuant to the Trafficking Victims Protection Reauthorization Act of 2008
(P.L. 110-457), for providing access to legal representation and appointing independent child
advocates to child trafficking victims. Unexpended funds and contract authority to support such
services would be transferred from the Secretary of Health and Human Services to DOJ.87
In addition, DHS would be required, at the beginning of removal proceedings, to provide an alien
with complete copies of all relevant documents that DHS possesses (so-called “A-files”),
including documents DHS has obtained from other agencies, with the exception of privileged or
law enforcement sensitive documents.88 Removal proceedings could not proceed until an alien
has received the required documents or waived the right to do so.89 S. 744 would also require
EOIR to maintain records and report to Congress information on aliens in removal proceedings,
78 Ibid.
79 S. 744 §§3501(a)-(c).
80 S. 744 §3504.
81 S. 744 §3504.
82 S. 744 §3505.
83 S. 744 §3506.
84 S. 744 §§3501(d), 3502(d), 3503(e), 3505(b), and 3506(f).
85 S. 744 §3502.
86 S. 744 §3503.
87 S. 744 §3507.
88 These documents include information pertaining to all transaction during the immigration process (commonly
referred to as an A-file).
89 S. 744 §3508.
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including how the hearings are conducted (e.g., in person, by teleconference) and the outcomes of
any hearings.90
Grounds of Inadmissibility, Deportability, and Relief from
Removal
S. 744 would amend the grounds of inadmissibility and deportability in the INA in several ways.91
The bill would add language to these provisions regarding conduct related to criminal street
gangs, with the inadmissibility grounds related to such activity being somewhat broader in scope.
Such conduct also would make aliens ineligible for adjustment to RPI status, though limited
waivers would apply in this case and with respect to inadmissibility.92 The bill also would make
three or more convictions for driving under the influence (DUI) a ground for deportability and
inadmissibility.93 A third such conviction would be made an aggravated felony for immigration
purposes,94 and therefore such an alien would be subject to more limited relief from removal.
Certain types of immigration-related fraud also would be made grounds for deportability and
inadmissibility.95 And S. 744 would make crimes involving domestic violence, stalking, and child
abuse, along with violations of protection orders, grounds for inadmissibility (though these new
grounds generally would be more narrow than corresponding grounds of deportability found in
current law).96 As noted elsewhere, withholding information for biometric screening also would
be made a ground for inadmissibility (see “Entry-Exit System”).97
The bill also would expand the grounds for inadmissibility related to torture and extrajudicial
killings, and would add war crimes and widespread human rights violations as inadmissibility
grounds, though these added grounds would not apply when the acts were committed under
duress. The President would be authorized to release the names of persons deemed inadmissible
on these grounds.98 Moreover, the bill would amend the Torture Victims Protection Act to
reference some of these added grounds in defining the scope of conduct for which covered
entities be held civilly liable. The bill would clarify that sexual abuse of a minor is an aggravated
felony for immigration purposes regardless of whether the victim’s age is established by extrinsic
evidence to the record of conviction.99
S. 744 also would increase discretion to waive certain grounds of inadmissibility. It would strike
“extreme” from the hardship waiver for the 3 and 10 year bars for aliens who have been illegally
present in the United States if they are parents of U.S. citizens or LPRs.100 And it would give
90 S. 744 §3720(c).
91 INA §§212 and 237.
92 S. 744 §3701.
93 S. 744 §§3702(a)-(b).
94 S. 744 §3702(c). For a fuller discussion of the aggravated felony provisions of the INA, see CRS Report RL32480,
Immigration Consequences of Criminal Activity, by Michael John Garcia; and CRS Sidebar WSLG454, Will
Immigration Reform Legislation Revisit the Definition of “Aggravated Felony”?, by Michael John Garcia.
95 S. 744 §3709.
96 S. 744 §3711(c).
97 S. 744 §3711(b).
98 S. 744 §3719.
99 S. 744 §3703.
100 S. 744 §2315.
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immigration judges discretion to not order certain aliens in proceedings to be removed, deported,
or excluded if the judge determined that such actions were against the public interest, would
create a hardship to the alien’s U.S. citizen or permanent resident immediate relatives, or if the
alien appeared eligible for naturalization.101 This waiver would not be available to individuals
subject to removal or inadmissibility based on certain criminal and national security grounds.
DHS would have similar discretion to waive grounds of inadmissibility. In addition, an exception
to the reinstatement of removal orders would be created for aliens who reentered prior to age 18,
or where reinstatement would not be in the public interest or create hardship for the alien’s U.S.
citizen or LPR parent, spouse, or child.102
Immigrant Detention
The Immigration and Nationality Act (INA) provides broad authority to detain aliens while
awaiting a determination of whether they should be removed from the United States and
mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must
be detained) by DHS.103
Aliens placed in removal proceedings who are not subject to mandatory detention may, depending
on the circumstances, be detained or released either on conditional parole (including on the
alien’s own recognizance) or on bond.104 S. 744 would establish new statutory requirements for
bond hearing procedures and the filing of notices to appear for aliens. All aliens would have the
opportunity to appear before an immigration judge after DHS’s custody determination. Other than
in the cases of certain terrorists and criminal aliens, detention would be required only if the
Secretary demonstrates that no conditions, including the use of alternatives to detention that
maintain custody over the alien, will reasonably assure the appearance of the alien and the safety
of any other person. Except for certain criminal aliens and terrorist aliens, immigration judges
would be required to review custody determinations (even in the case of mandatory detainees);
and the bill would also provide for additional review by an immigration judge every 90 days as to
whether the custody of a detained alien is warranted.105
For aliens not eligible for bail or to be released on recognizance, S. 744 would require DHS to
establish a secure alternative program offering a “continuum of supervision mechanisms and
options” within each ICE field office.106 All aliens, including those subject to mandatory
detention (other than suspected terrorists and security threats held under INA §236A) would
101 S. 744 §2314.
102 S. 744 §2314.
103 For a fuller discussion of immigrant detention, see CRS Report RL32369, Immigration-Related Detention, by
Alison Siskin. For discussion of judicial interpretation of mandatory detention provisions, see CRS Sidebar WSLG524,
How “Mandatory” Is the Mandatory Detention of Certain Aliens in Removal Proceedings?, by Michael John Garcia.
104 INA §236(a). Release from immigration authorities’ custody under “conditional parole” is distinct from the parole
of aliens into the United States under INA §212(d)(5), under which the Secretary of DHS may permit the temporary
physical entry of aliens into the United States for urgent humanitarian reasons or a significant public benefit, without
such entry constituting formal admission into the country for immigration purposes. See Matter of Luis Castillo-
Padilla, 25 I & N Dec. 257 (BIA 2010).
105 S. 744 §3717.
106 S. 744 §§3715(a)-(b). An ICE pilot program established in 2004 provides such alternatives in certain locations; for a
fuller discussion see CRS Report RL32369, Immigration-Related Detention, by Alison Siskin.
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potentially be eligible for the secure alternative program.107 DHS would also be authorized to
contract with non-governmental organizations to implement secure alternatives.108
For aliens in detention, ICE has adopted national detention standards specifying detention
conditions for immigration detainees; but existing standards do not themselves have the force of
law, and detainees may have more limited recourse to violations of these standards than violations
of applicable statutes and regulations.109 S. 744 would require DHS to adopt such standards and
would provide oversight and compliance mechanisms. These mechanisms would include regular
inspections (at least annually) of all DHS detention facilities, financial penalties and/or the
termination of contracts for non-compliant facilities, and annual reports to Congress.110 The bill
also would limit the use of solitary confinement of detained aliens, and set procedures that would
have to be followed if an alien was placed in solitary confinement.111 Furthermore, S. 744 would
require DHS to maintain records and report to Congress on the detention of aliens, including
information regarding the length of an alien’s detention, the charges that serve as the basis for
removal proceedings against him, and the status of such proceedings.112
Protection of Children during Immigration Enforcement
S. 744 include provisions intended to ensure that an alien’s detention and/or removal does not
result in the termination of a parent or caregiver’s parental rights.113 The bill would require state
child welfare agencies to offer certain protections and services to children in foster care who are
separated from their parents due to immigration enforcement, and generally would make the fact
that a child’s parent had been detained or removed because of an immigration proceeding a
compelling reason for a state child welfare agency not to seek termination of parental rights
(TPR) to a child in foster care. Further, before the agency could file for TPR, S. 744 would
require the agency to make reasonable efforts to locate a parent who has been removed from the
country, notify that parent of the TPR proceedings, or reunite the child with the parents.
The bill would stipulate that a state’s child protection standards cannot disqualify a parent or
other relative as a placement option solely based on the immigration status of the adult and would
require state child welfare agencies to ensure certain services and protections are offered to
children in foster care whose parents are deported or detained under immigration law. Such
services would include providing a case manager or native language interpreter, documenting in
the child’s written case plan the location of the parent or relative from whom the child was
removed, and working with DHS to ensure parents who want their children to leave the country
with them have enough time and access to necessary documents, among other requirements. The
bill would also require DHS to determine within 2 hours if an individual apprehended during an
immigration enforcement action is a parent or other primary caregiver of a child in the United
States. DHS would be required to provide such parents or caregivers at least two telephone calls
to arrange for the child’s care, to notify relevant child welfare agencies if the parent or caregiver
107 S. 744 §§3715(c)-(d).
108 S. 744 §3715(b).
109 For a fuller discussion see CRS Report RL32369, Immigration-Related Detention, by Alison Siskin.
110 S. 744 §3716.
111 S. 744 §3717(b).
112 S. 744 §3720.
113 S. 744 §2107(b).
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is unable to make arrangements for the child or if the child is at imminent risk of harm, and to
ensure that the best interest of the child is considered on any decisions related to detention.114
In addition, S. 744 would require that detention facilities provide mechanisms for detained
parents/caregivers to maintain contact and custody of their children including by permitting
regular calls and contact with the children and allowing detainees to participate in family court
proceedings, ensuring that the detainee is able to fully comply with all family court or child
welfare agency orders impacting custody of their children, and providing access to applications to
request travel documents for their children.115 The bill would mandate that the Secretary of DHS,
in consultation with the AG, Secretary of HHS, and child welfare and family law experts, develop
training on the new requirements under the bill.116
Additional Interior Enforcement Provisions
S. 744 includes several additional provisions related to the enforcement of immigration laws
within the United States and related issues (also see “Immigration-Related Crimes”). The bill
would narrow immigration officers’ authority to engage in enforcement actions in “sensitive
locations” such as schools and hospitals without prior approval or exigent circumstances. It would
also require DHS to report annually to Congress on any such enforcement actions117 The bill
would provide that stipulated removal pursuant to INA Section 240(d) may only be granted
following an in-person hearing that finds that the concession of removability is voluntary,
knowing, and intelligent.118 S. 744 also would appear to give the State Department discretion to
discontinue granting only certain types of visas upon notification that a country is refusing
repatriation of its nationals, rather than discontinuing all immigrant or nonimmigrant visas (or
both) as may occur under current law.119 In addition, S. 744 would eliminate the INA provision
that currently allows a U.S. citizen to renounce citizenship during a time of war if the Attorney
General approves the renunciation as not contrary to the interest of national defense.120 And it
would broaden the criminal investigatory authority of State Department and Foreign Service
Special Agents.121
114 S. 744 §3803.
115 S. 744 §3804.
116 S. 744 §3805.
117 S. 744 §3720.
118 S. 744 §3717.
119 S. 744 §3718.
120 S. 744 §3713 (striking INA §349(a)(6)). This provision could have implications for the detention or trial of a U.S.
person deemed to be an enemy belligerent either in the conflict with Al Qaeda or some other future conflict. For
example, in 2004, a dual U.S.-Saudi national detained by U.S. military authorities as an “enemy combatant” was
released from U.S. custody and permitted to return to Saudi Arabia after he agreed to renounce his U.S. citizenship.
121 S. 744 §3714.
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Employment Eligibility Verification and Worksite
Enforcement122
Under current law, it is illegal 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.123 Employers are required
to review documents to verify the identity and work eligibility of new employees; and employers
and employees must sign a form attesting that they have reviewed such documents (in the case of
the employer) and are authorized to work in the United States (in the case of the worker).124 The
law also gives immigration officers and administrative law judges (ALJs) authority to investigate
alleged violations of these provisions, and establishes civil monetary penalties for substantive and
paperwork violations, as well as criminal penalties for a pattern or practice of violations.125
Certain employers also use E-Verify, an Internet-based system that checks information provided
by workers during the verification process against federal databases.126
Section 3101 of S. 744 would strike and re-write the employment verification and worksite
enforcement provisions of the INA, imposing a new requirement to be phased in over time that all
employers use an electronic eligibility verification system (EVS) similar to E-Verify, and
strengthening the law’s compliance provisions, among other changes. In general, civil and
criminal penalties for hiring unauthorized workers would roughly double relative to their current
levels. The law also would provide for several types of enhanced penalties, including special
compliance plans, property liens, and potential debarment from federal contracts. At the same
time, the bill would impose a tougher standard of proof for liability, and pre-penalty notices that
only could be issued if there is reasonable cause to believe a civil violation has occurred in the
past three years. Other sections of S. 744 include a number of provisions apparently designed to
limit the burden on employers that would result from these changes to INA Section 274A (see
“Employer Protections”), and to prevent discrimination and otherwise protect lawful workers
against potential adverse effects of the new system (see “Worker Protections”).
As noted elsewhere (see “Comprehensive Immigration Reform Funds”), Section 6 of S. 744
would appropriate $750 million over a six-year period for DHS to expand and implement the
EVS.127 In addition, Section 3301 would establish an Interior Enforcement Account, and
authorize $1 billion to support actions by DHS, the Commissioner of Social Security, the
Attorney General, and the Department of State to carry out provisions described in Title III.
Included within this authorization, DHS would be authorized, within five years, to increase to
5,000 the number of USCIS and ICE personnel assigned to administer and enforce the laws
discussed in this section. The Secretary of DHS and the Commissioner of the Social Security
Administration (SSA) would be required to enter into a reimbursable agreement to cover the full
122 CRS Specialist in Immigration Policy Andorra Bruno and CRS Legislative Attorney Kate M. Manuel contributed to
this section of the report.
123 For an overview of existing employer sanctions provisions, see CRS Report R40002, Immigration-Related Worksite
Enforcement: Performance Measures, by Andorra Bruno.
124 INA §274A(b)
125 INA §274A(e)-(f).
126 For an overview of the E-Verify program, see CRS Report R40446, Electronic Employment Eligibility Verification,
by Andorra Bruno.
127 S. 744 §6(a)(3)(A)(iv).
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costs of SSA’s responsibilities under the EVS. DHS would be required to issue regulations to
implement Section 3101 no later than one year after the bill’s enactment.128
Document Verification Requirements and Document Integrity
The document verification requirements under Section 3101 of S. 744 would be similar to the
existing system, with employers and new employees, respectively, required to attest to having
reviewed workers’ documents evidencing identity and work authorization and to being authorized
to work in the United States. The bill would add “enhanced” driver’s licenses or identification
cards to the list of documents workers may present to establish both identity and employment
eligibility.129 In addition, Section 3101 would include two new tools to combat the use of
fraudulent documents by unauthorized workers. USCIS would be required to publish pictures of
acceptable documents on its website. And employers would be required to use a new identity
authentication mechanism to be developed by DHS. For certain documents, the mechanism would
consist of a “photo tool” to detect documents that have been altered by photo substitution by
allowing employers to check photographs on certain identity documents presented by workers
against original images from the same documents stored in a USCIS database.130 DHS would
develop another mechanism for documents whose images are not included in the USCIS
database. Section 3101 would authorize $250 million for a DHS grant program for states to
provide DHS with access to driver’s license information to support the photo tool.
The bill also would address document integrity by requiring the Commissioner of Social Security,
within five years of enactment of S. 744, to issue only “fraud-resistant, tamper-resistant, wear-
resistant, and identity theft-resistant” Social Security cards.131 New criminal penalties would be
created for fraudulent use of or traffic in a Social Security card or number.132 And DHS would be
required to study the possible addition of biometric data to employment authorization
documents.133
Electronic Eligibility Verification System
Section 3101 of S. 744 would establish and make permanent an electronic eligibility verification
system (EVS) modeled on the current E-Verify system, and eventually would require that all
employers use the system. Under E-Verify, employers submit information from workers’ identity
and work eligibility documents to USCIS to be checked against Social Security and (in some
128 S. 744 §3106.
129 Such licenses or cards would be those that meet the requirements of §202 of the REAL ID Act of 2005 (P.L. 109-13,
Div. B) and that are certified as suitable by DHS. Under current law, INA §274A(b)(1)(D) provides that driver’s
licenses may be used to establish identity, but not work eligibility. For a fuller discussion of the identification standards
under the REAL ID Act, see archived CRS Report RL32754, Immigration: Analysis of the Major Provisions of the
REAL ID Act of 2005, by Michael John Garcia, Margaret Mikyung Lee, and Todd B. Tatelman.
130 USCIS currently makes such a photo tool available through the E-Verify system for certain identity documents. See
CRS Report R40446, Electronic Employment Eligibility Verification.
131 S. 744 §3102(a).
132 S. 744 §3102(c).
133 S. 744 §3103.
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cases) DHS databases to confirm that the information matches federal records. In this way, E-
Verify is designed to detect certain types of fraudulent documents.134
Current law makes E-Verify a primarily voluntary system;135 but S. 744 would require certain
employers to begin using the EVS immediately, and would require all employers to use the
system within six years of the bill’s date of enactment.136 Participating employers would be
required to register and to comply with EVS procedures. Eventually, all employers would have to
use the system to verify newly hired workers during the first three days of employment, and to re-
verify all workers with expiring employment authorization documents. An employer who hires a
worker without using the EVS after the date on which the employer is required to use the system
would be presumed to have knowingly hired an unauthorized worker.137 Section 3101 would also
authorize DHS to require that certain employers verify current workers who were not previously
confirmed through the EVS.138
Similar to E-Verify, the EVS would be designed to immediately (or within three days) provide
either a confirmation of work eligibility, or a “further action notice” indicating that the worker’s
eligibility initially could not be confirmed. Employers would be required to notify workers in
receipt of a further action notice, to allow workers to correct potential database or user errors; and
workers would have 10 days to contest the notice.139 In cases in which a worker fails to contest a
further action notice or nonconfirmation, or exhausts his or her opportunities to contest or appeal
a finding by the system that the worker is unauthorized, an employer would be required to
terminate the worker’s employment. Failure to do so would create a rebuttable presumption that
the employer knowingly hired and continued to employ an unauthorized worker. USCIS also
would be required to provide ICE with information about workers nonconfirmed by the system.
Employer Protections
Some Members of Congress have raised concerns about how changes to strengthen employment
eligibility verification and worksite enforcement may affect certain U.S. employers.140 Some
Members also have raised concerns about the costs to certain businesses of using the EVS.141 And
134 For a fuller discussion, see CRS Report R40446, Electronic Employment Eligibility Verification.
135 See CRS Report R40446, Electronic Employment Eligibility Verification. In addition, certain state and local laws
require employers to use E-Verify; see CRS Report R41991, State and Local Restrictions on Employing Unauthorized
Aliens, by Kate M. Manuel.
136 Federal agencies and departments and federal contractors would be required under §3101(a) to participate in the
EVS immediately or within 90 days of the date of enactment; and employers participating in E-Verify before the bill’s
date of enactment would be required under §3101(e) to participate in the new EVS to the same extent and in the same
manner as in E-Verify. Other employers would be required under §3101(a) to participate in the EVS within one to five
years after implementing regulations for the section are published, beginning with critical infrastructure employers,
followed, in turn, by large employers, smaller employers, agricultural employers, and tribal government employers.
137 Such employers would thus be presumed to have violated INA §274A(a)(1)(A).
138 DHS could require certain employers to participate in the EVS to protect critical infrastructure, and such employers
would be permitted, and could be required, to re-verify the eligibility of workers hired prior to the employer’s use of
the EVS. Employers determined to have engaged in a pattern or practice of unlawful employment also could be
required to use the EVS to re-verify current employees.
139 The DHS Secretary could extend the 10-day deadline for cause.
140 See for example, U.S. Congress, House committee on the Judiciary, Subcommittee on Immigration and Border
Security, H.R. 1772: The “Legal Workforce Act,” 113th Cong., 1st sess., May 16, 2013.
141 Ibid.
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with several states and localities passing laws to combat the employment of unauthorized
workers, business groups have pushed for uniform national standards for employment
verification.142
S. 744 includes several provisions apparently designed to address these concerns. With respect to
uniform standards, the bill would expressly preempt state and local measures that include fines or
“penalty structures” related to the hiring, continued employment, or status verification for
employment eligibility purposes of unauthorized aliens.143 Section 3101 describes conditions
under which the DHS Secretary or an administrative law judge may mitigate certain penalties,
and includes more detailed provisions than in current law for challenging penalty claims. The
section also would broaden existing language describing an employer’s good-faith compliance
defense against prosecution for violations of these provisions, and would protect employers from
liability for actions taken in good faith based on the EVS.
Under S. 744, DHS would be required to make arrangements to enable employers or employees
who are not otherwise able to access the EVS to use electronic and telephonic formats, federal or
public facilities, or other locations to utilize the system. Section 3101 of S. 744 also would
require reports by DHS and GAO on unique challenges of implementing the EVS in the
agricultural industry,144 on adverse impacts on employers associated with EVS implementation,145
and on the effects of new documentary requirements on different categories of work-authorized
workers and employers.146 In addition, a new Office of the Small Business and Employee
Advocate would be created.147 The office would be charged with assisting small businesses and
individuals to comply with the law, and also to abate certain penalties.
Worker Protections
Along with adding employer sanctions provisions, the 1986 IRCA included provisions to prohibit
employment discrimination (other than against unauthorized workers) based on national origin or
citizenship status.148 The DOJ Office of Special Counsel for Immigration-Related Unfair
Employment Practices was created to respond to the concern that some employers would
discriminate against foreign-looking or foreign-sounding individuals to avoid possibly being
penalized under INA Section 274A. E-Verify was intended, in part, to combat such
discrimination, but evaluations of E-Verify have produced ambiguous findings about its effects.149
Section 3101 of S. 744 would require that the DHS Secretary design the EVS to allow for
auditing to detect possible cases of this type of employment discrimination and other adverse
142 Ibid.
143 States and localities still would be permitted to exercise their authority over business licensing and “similar laws” as
a penalty for failure to use the EVS.
144 S. 744 §3101(b); DHS would be required to consult with the Department of Agriculture on this report.
145 S. 744 §3101(c).
146 S. 744 §3101(d). The GAO report in this section also concerns the potential for discriminatory effects of the EVS on
certain lawful workers; also see in this report “Worker Protections”.
147 S. 744 §3107.
148 INA §274B(a).
149 Westat, Findings of the E-Verify Program Evaluation, December 2009; for a fuller discussion see CRS Report
R40446, Electronic Employment Eligibility Verification.
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actions, and to allow workers to check their own verification case histories, to verify their own
eligibility through the system, and to temporarily lock their own or their children’s Social
Security numbers. DHS would develop procedures to notify workers directly when their records
are queried and when they receive a further action notice, nonconfirmation, or confirmation. DHS
also would conduct regular civil rights and civil liberties assessments of the EVS; and the DHS
Inspector General would conduct annual audits of EVS accuracy rates. Section 3101 also outlines
detailed provisions for administrative and judicial review of final nonconfirmations of a worker’s
eligibility, and would allow an ALJ, as part of the administrative review process, to uphold or
reverse an EVS determination and to order lost wages and other appropriate remedies in cases of
erroneous nonconfirmations.150
In addition to the worker protections in the EVS, S. 744 includes additional provisions apparently
designed to prevent discrimination or other adverse outcomes during the verification process. In
cases of labor disputes, all rights and remedies provided under federal, state, or local law relating
to workplace rights, including back pay, would be available to an employee despite the
employee’s status as an unauthorized alien.151 And reinstatement would be available to
individuals who lose employment authorized status due to unlawful acts of an employer.152 The
bill also would make certain prohibited uses of the EVS unfair immigration-related employment
practices, and therefore subject to civil penalties through the DOJ Office of Special Counsel
(OSC).153 And it would expand the OSC’s jurisdiction to cover certain small employers now
exempt from the section. Section 3105 also would require the Equal Employment Opportunity
Commission to refer all allegations of immigration-related unfair employment practices to the
DOJ Special Counsel, and would more than double the monetary penalties for violations of
worker rights under these provisions. The section also would authorize $120 million in FY2014-
FY2016 to publicize these worker protections.
As noted elsewhere, Section 3107 would create a new Office of the Small Business and
Employee Advocate (see “Employer Protections”). The office would be charged with assisting
individuals and small businesses with complying with employment verification requirements,
including by helping individuals correct erroneous further action notices and nonconfirmations.154
S. 744 includes additional provisions to protect certain foreign workers. Section 3201 would
expand eligibility for the U visa to cover a wider class of alien crime victims than under current
law, as well as aliens who have been or may be helpful in a wider range of criminal
investigations. The visa also would be expanded to include as new “covered violations” serious
workplace abuse, exploitation, retaliation, or violations of whistleblower protections. DHS would
be required to stay the removal of certain aliens arrested or detained in the course of worksite
enforcement activities, and to notify appropriate law enforcement agencies with jurisdiction over
the violations. The section also amends other provisions of the INA to protect victims of “serious
150 S. 744 §3101(a).
151 S. 744 §3101(a).
152 S. 744 §3101(a).
153 S. 744 §3105(a). Prohibited practices would include discharging individuals for whom further action notices or
nonconfirmations are received prior to the completion of the appeals process, use of the system for unauthorized
purposes, use of the system to re-verify the eligibility of current employees (with certain exceptions), and unauthorized
selective use of the system. Such practices are prohibited under USCIS’ E-Verify rules, but current law does not
provide for penalties against employers who violate these rules.
154 S. 744 §3107.
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violations” of labor and employment law. Certain penalties collected from employers who hire or
employ unauthorized workers would be deposited in the CIR Trust Fund and made available to
DHS and DOJ to educate employers and workers about the EVS.155 The bill also would direct the
U.S. Sentencing Commission to provide enhanced sentencing guidelines for persons convicted of
certain employment-related offenses,156 and would generally preclude the disclosure of
information provided by aliens who are victims of certain crimes.157
Legalization of Unauthorized Aliens158
How to address the unauthorized alien population in the United States is a key and controversial
issue in comprehensive immigration reform. There is a fundamental split between those who want
to grant legal status to unauthorized aliens in the United States and those who want unauthorized
aliens to leave the country. Among those who support legalization for at least some portion of the
unauthorized population, there also may be disagreement about how to treat different segments of
the unauthorized population as part of a legalization process.159 S. 744 proposes to establish a
general legalization program for unauthorized aliens in the United States (see “Registered
Provisional Immigrants (RPIs)”), with special pathways for aliens who entered the country as
children (see “DREAM Act”) and for agricultural workers (see “Agricultural Worker
Legalization”). As noted elsewhere, the implementation of certain enforcement provisions under
Section 3 of the bill serves as a pre-condition for the bill’s legalization provision (see “Triggers
for Legalization and Adjustment to LPR Status”). Interim final regulations to implement all of the
legalization provisions discussed in this section would have to be issued no later than one year
after the enactment of S. 744 and would take effect immediately upon publication.160
Registered Provisional Immigrants (RPIs)
Under current law, there are limited avenues for unauthorized aliens in the United States to
become lawful permanent residents.161 Sections 2101, 2102, and 2103 of S. 744 would establish a
new multi-step, multi-year process that would enable eligible unauthorized aliens to transition
into a provisional legal status and ultimately to lawful permanent residence. Interim final
regulations to implement these provisions would have to be issued no later than one year after the
enactment of S. 744 and would take effect immediately upon publication.162
S. 744 Section 2101 would add a new section (245B) to the INA, allowing adjustment to a newly
created “registered provisional immigrant (RPI)” status. The Secretary of DHS would be
authorized to grant RPI status to a foreign national who meets the specified eligibility
155 S. 744 §3202.
156 S. 744 §3203.
157 S. 744 §3204.
158 CRS Specialist in Immigration Policy Andorra Bruno, CRS Legislative Attorney Margaret Mikyung Lee, and CRS
Legislative Attorney Kate M. Manuel contributed to this section of the report.
159 See CRS Report R42958, Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, by
Andorra Bruno.
160 S. 744 §2110.
161 See Ibid.
162 S. 744 §2110.
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requirements, submits an application in the specified period, and pays a fee and a penalty, if
applicable. The RPI eligibility requirements state that the alien must be physically present in the
United States on the date of submitting the RPI application, must have been physically present in
the United States on or before December 31, 2011, and must have maintained continuous physical
presence in the United States from December 31, 2011, until the date the alien is granted RPI
status. Dependent spouses and children could be classified as RPI dependents if they were
physically present in the United States on or before December 31, 2012, have maintained
continuous physical presence in the United States from that date until the date the principal alien
is granted RPI status, and meet the other RPI eligibility requirements.
Under S. 744, a foreign national would be ineligible for RPI status if he or she has a conviction
for specified criminal offenses or for unlawful voting; if the Secretary of DHS knows or has
reasonable grounds to believe that the alien has engaged, or is likely to engage, in terrorist
activity; or if the alien is inadmissible under certain provisions of the INA. Aliens with LPR,
refugee, asylum, or (with specified exceptions) legal nonimmigrant status on the date S. 744 was
introduced also would be ineligible. Section 2101 of S. 744 would further require that aliens
satisfy any applicable federal tax liability163 prior to filing an RPI application, and that aliens
submit biometric and biographic data and clear national security and law enforcement
background checks as part of the application process. An RPI applicant also may be subject to
additional security screening at the discretion of the DHS Secretary.164 The RPI application period
would run for one year beginning on the date a final rule is published; the Secretary could extend
the application period for an additional 18 months.
Aliens seeking RPI status under S. 744 would be required to pay both a processing fee and a
penalty. Aliens age 16 and older would be charged a processing fee in an amount set by the DHS
Secretary that is sufficient to cover the full costs of processing applications. Aliens 21 and older
(who are not covered by DREAM Act provisions; see “DREAM Act”) would be required to pay a
penalty of $1,000, which could be paid in installments. The processing fees would be deposited
into the existing Immigration Examinations Fee Account and the penalties would be deposited
into the new CIR Trust Fund (see “Comprehensive Immigration Reform Funds”).
Under S. 744, an alien who is apprehended before or during the RPI application period and
appears to be eligible for RPI status would be given an opportunity to file an application and
could not be removed until a final determination on the application is made. Similarly, in the case
of an alien in removal proceedings during the same time frame who appears to be eligible for RPI
status, S. 744 would provide for suspension of the removal proceedings to give the alien a
reasonable opportunity to apply for RPI status.
Aliens outside the United States who departed the country while subject to an order of exclusion,
deportation, removal, or voluntary departure, and such aliens who reentered illegally after
December 31, 2011, generally would not be eligible to file an application for RPI status under S.
744. The Secretary could waive this provision if the alien is the spouse or child of a U.S. citizen
or LPR or the parent of a U.S. citizen or LPR child, or if the alien meets certain requirements
under the DREAM Act provisions.
163 As used here, applicable federal tax liability means all federal income taxes assessed in accordance with §6203 of
the Internal Revenue Code.
164 This provision was added to §2101 during markup by the Senate Judiciary Committee and only applies to RPIs.
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While an alien’s RPI application is pending, the alien could receive advance parole165 in urgent
circumstances, could not be detained or removed unless the Secretary of DHS determines the
alien is no longer eligible for RPI status, would not be considered unlawfully present, and would
not be considered to be an unauthorized alien for employment purposes. In general, an employer
who knows that an alien is or will be an applicant for RPI status would be permitted to employ
the alien pending adjudication of the alien’s RPI application.
A foreign national granted RPI status generally would be considered to have been admitted and
lawfully present in the United States as of the application filing date, and would be permitted to
travel in and out of the United States. The DHS Secretary would issue RPIs a machine-readable
and tamper-resistant identity document with a digitized photo. The Commissioner of Social
Security, in coordination with the DHS Secretary, would be required to implement a system to
assign Social Security numbers and cards to each RPI. RPIs would be ineligible for federal
means-tested public benefits (see “Access to Federal Public Benefits”).
Under S. 744, the initial period of RPI status would be six years. This initial period could be
extended for one or more additional periods of six years if the alien remains eligible for RPI
status and meets specified requirements, including a continuous employment requirement. In
general, to satisfy this employment requirement, an alien either must establish that he or she was
regularly employed (allowing for periods of unemployment of up to 60 days) and is not likely to
become a public charge, or must demonstrate average income or resources above a specified level
throughout the RPI admission period. An alien also could satisfy the employment requirement by
full-time attendance at certain educational institutions or programs. The employment requirement
would not apply to RPI dependents and would be subject to other exceptions and waivers.
RPI Adjustment of Status to Lawful Permanent Residence
To enable RPIs to eventually become LPRs, S. 744 Section 2102 would add a new section (245C)
to the INA on RPI adjustment of status.166 Under INA Section 245C, RPIs would not be permitted
to adjust to LPR status until the Secretary of State certifies that immigrant visas have become
available for all approved petitions that were filed under applicable sections of the INA before the
enactment of S. 744.167 Interim final regulations to implement these provisions and the bill’s other
adjustment of status provisions would have to be issued no later than one year after the enactment
of S. 744 and would take effect immediately upon publication.168
For RPIs seeking to adjust to LPR status, the waivers of inadmissibility for aliens initially seeking
RPI status would continue to apply. In addition, to adjust to LPR status in accordance with INA
Section 245C, an alien would have to have remained eligible for RPI status, including by
165 Advance parole is permission to reenter the United States after traveling abroad. It allows an otherwise inadmissible
individual to physically enter the United States due to compelling circumstances, though such entry does not constitute
legal admission into the country for purposes of immigration law.
166 The adjustment of status provisions for RPIs in INA §245C do not provide a complete adjustment of status process.
Instead, INA §245C describes certain qualifications and procedures for RPIs to adjust to LPR status. In order to
become an LPR, an RPI would have to adjust status under either the DREAM Act provisions (see in this report,
“DREAM Act””) or the provisions on merit-based track two permanent admissions in §2302 of the bill (see in this
report, “Merit-Based Track Two”).
167 This “back-of-the-line” language seems to be unclear about the treatment of pending petitions for immigrant visas
filed before the bill’s date of enactment on behalf of aliens who subsequently become RPIs.
168 S. 744 §2110.
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satisfying the employment requirement, and would have to have been continuously physically
present in the United States during the period of admission as an RPI, as specified. RPIs adjusting
status in accordance with INA Section 245C also would be required to satisfy any applicable
federal tax liability169 and to register under the Military Selective Service Act if applicable, and
would be subject to renewed national security and law enforcement checks prior to adjustment.
Applicants 16 and older would be required to meet, or to be pursuing a course of study to meet,
the INA English language and civics requirements for naturalization, subject to exceptions and
waivers.
INA Section 245C would impose a second set of processing and penalty fees on RPIs who apply
to adjust to LPR status under its terms. Applicants would have to pay a penalty of $1,000, which
could be paid in installments. Processing fees would be deposited into the existing Immigration
Examinations Fee Account and penalties would be deposited into the CIR Trust Fund (see
“Comprehensive Immigration Reform Funds”).
RPIs who satisfy these requirements under INA Section 245C could adjust to LPR status under
the Merit-Based Track Two visa provisions pursuant to S. 744 Section 2302. These visas would
become available beginning in FY2024, as discussed elsewhere (see “Merit-Based Track Two”).
Those RPIs who also meet additional eligibility criteria set forth in the DREAM Act provisions
(in S. 744 §2103) may have the option of adjusting status more quickly under a new INA Section
245D (see next section, “DREAM Act”). RPIs only could adjust status under the Merit-Based
Track Two provisions or the DREAM Act provisions.
S. 744 Section 2102 also would amend current law to provide for naturalization170 of certain
LPRs who were lawfully present in the United States and eligible for work authorization for at
least 10 years prior to becoming an LPR—language apparently covering RPIs following their
adjustment to LPR status under the Merit-Based Track Two provisions (see “Merit-Based Track
Two”). These aliens would be able to apply for naturalization after three years in LPR status,
rather than five years as is usually the case for LPRs currently seeking to naturalize.
DREAM Act
S. 744 would add a new section (245D) to the INA on adjustment of status for certain RPIs who
entered the United States as children and satisfy a set of requirements. Such aliens previously
have been the subject of similar stand-alone legislation known as the Development, Relief, and
Education for Alien Minors (DREAM) Act.171 Under S. 744, the DHS Secretary could adjust the
status of an RPI to that of an LPR if the alien demonstrates that he or she:
• has been an RPI for at least five years;
• was under age 16 at the time of initial entry into the United States;
• has earned a high school diploma, general education development (GED)
certificate, or the equivalent in the United States; and
169 As used here, applicable federal tax liability means all federal income taxes assessed in accordance with §6203 of
the Internal Revenue Code.
170 Naturalization is the process through which an LPR becomes a U.S. citizen.
171 For a discussion of DREAM Act legislation, see CRS Report RL33863, Unauthorized Alien Students: Issues and
“DREAM Act” Legislation, by Andorra Bruno.
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• has earned a degree from an institution of higher education or has completed at
least two years in good standing in a bachelor’s or higher degree program in the
United States, or has served in the uniformed services for at least four years.172
Such aliens would be required to provide DHS with a list of secondary schools attended in the
United States; and they would be subject to English language and civics requirements and
national security and law enforcement screening. Aliens adjusting under INA Section 245D would
be exempt from the $1,000 penalty charged to RPIs adjusting status under INA Section 245C, and
would face a somewhat different set of application requirements than other RPIs.
For purposes of naturalization, an alien granted LPR status under INA Section 245D would be
considered to have been lawfully admitted for permanent residence and to have been in the
United States as an LPR (and therefore accumulating time toward the residency requirement for
naturalization)173 during the period the alien was an RPI. With some exceptions, however, an alien
could not apply for naturalization while in RPI status.
S. 744 would amend the INA to exempt aliens who adjust to LPR status under INA Section 245C
(for RPIs) or INA Section 245D (the DREAM Act) from the worldwide numerical limits on
permanent admissions.174 In addition, S. 744 would repeal Section 505 of Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which places certain restrictions on
state provision of postsecondary educational benefits to unauthorized aliens.175
The bill would further specify that RPIs who initially entered the United States before age 16 and
aliens granted blue card status (see “Agricultural Worker Legalization”) would only be eligible
for certain types of federal student financial assistance under Title IV of the Higher Education Act
(HEA) of 1965.176 These aliens would be eligible for student loans, federal work-study programs,
and services.
Agricultural Worker Legalization
S. 744 would establish a new legal temporary status, termed “blue card” status, for agricultural
workers who satisfy specified work and other requirements.177 Broadly similar provisions have
been included in measures introduced regularly in recent Congresses, including in bills known as
the Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS Act).
S. 744 provides that the Secretary of DHS could grant blue card status to an alien who
• either performed not fewer than 575 hours or 100 work days of agricultural
employment in the United States during the two-year period ending on December
31, 2012, or
172 S. 744 §2103.
173 INA §316.
174 S. 744 §2103.
175 Ibid. Language to repeal this 1996 provision has been regularly included in DREAM Act bills; see CRS Report
RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation.
176 P.L. 89-329; 20 U.S.C. §§1070 et seq.
177 S. 744 §2211.
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• is the spouse or child of such an alien, was physically present in the United States
on or before December 31, 2012, and has maintained continuous presence in the
United States from that date until the date on which the alien is granted blue card
status.178
The application period for blue card status would run for one year beginning on the date a final
rule is published, and the DHS Secretary could extend the period for an additional 18 months.
The Secretary of DHS, in consultation with the Secretary of Agriculture, would have to issue final
regulations to implement these provisions no later than one year after the enactment of S. 744.179
No alien would be permitted to remain in blue card status after the date that is eight years after
regulations are published.180 The Secretary could only accept applications from aliens within the
United States, except for aliens who have participated in the H-2A visa program,181 who could
apply from abroad.
Apart from their work experience, blue card applicants generally would be subject to similar
eligibility restrictions and waivers of inadmissibility as RPIs (see “Registered Provisional
Immigrants (RPIs)”), except that legal nonimmigrants in H-2A status would be eligible for blue
cards. Blue card applicants also would be subject to national security and law enforcement
background checks. They would enjoy similar protections as RPIs from being removed during the
application period, and would similarly receive an identity document, work authorization, and
permission to travel into and out of the United States. Applicants for blue card status also would
be subject to processing and penalty fees, though penalties, at $100, would be lower than for RPI
applicants. Processing fees would be deposited into the Immigration Examinations Fee Account,
and the penalties would be deposited into the CIR Trust Fund.
Each employer of an alien with blue card status would be required to annually provide a record of
the alien’s employment to the alien and the Secretary of Agriculture. The Secretary of DHS would
be allowed to adjust an alien with blue card status to RPI status if the alien is unable to fulfill the
agricultural work requirement for adjustment from blue card status to LPR status, as specified.
Adjustment of Status to Lawful Permanent Residence
S. 744 would add a new section (245F) to the INA to provide for the adjustment of status of aliens
with blue card status to LPR status. The DHS Secretary, in consultation with the Secretary of
Agriculture, would be required to issue final regulations implementing these provisions within
one year of the enactment of S. 744.182 Under this new INA section, the DHS Secretary, not
earlier than five years after the enactment of S. 744, would be required to adjust the status of
certain aliens with blue card status if the alien has performed either: not less than 100 work days
of agricultural employment annually for five years in the eight-year period beginning on the date
178 Ibid.
179 Ibid.
180 S. 744 §2211 does not separately specify the length of the period of blue card admission.
181 The H-2A 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; see CRS
Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by Andorra
Bruno.
182 S. 744 §2211.
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of enactment, or not less than 150 work days of agricultural employment annually for three years
in the five-year period beginning on the date of enactment.183
The Secretary of DHS could not adjust the status of an alien with blue card status if the alien is no
longer eligible for blue card status or has failed to meet the agricultural work requirement. As
with RPIs, grounds of inadmissibility waived during the initial application period would continue
to apply for purposes of adjustment of status; and aliens adjusting from blue card status would be
required to satisfy any applicable federal tax liability,184 and to pay a processing fee and a $400
penalty. S. 744 also would establish a criminal penalty for false statements in applications for
blue card status or in applications for adjustment from blue card status to LPR status.185
The Secretary of DHS would grant LPR status to the spouse or child of an alien whose status was
adjusted from blue card status to LPR status if the spouse or child applies for such status, the
principal alien includes the spouse or child in an adjustment of status application, and the spouse
or child is not ineligible for LPR status under the ineligibility provisions for obtaining RPI status
(see “Registered Provisional Immigrants (RPIs)”). An alien granted blue card status would only
be permitted to adjust to LPR status under this section, the RPI adjustment of status provisions,186
or the merit-based track two permanent admissions provisions (see “Merit-Based Track Two”). S.
744 further provides that worldwide and per-country immigration limits would not apply to
adjustments of status from blue card status to LPR status.187
Access to Federal Public Benefits188
Noncitizens’ eligibility for major federal benefits largely depends on their immigration status and
how long they have lived and worked in the United States. Eligibility rules differ for federal
public benefits, including federal means-tested benefits. Under Section 403 of the Personal
Responsibility and Work Opportunity Reconciliation Act (PRWORA, P.L. 104-193), federal
means-tested benefits have been defined by regulation to include Supplemental Nutrition
Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), Supplemental
Security Income (SSI), Medicaid, and the Children’s Health Insurance Program (CHIP).
LPRs, asylees, refugees, and other humanitarian migrants189 are generally eligible for federal
public benefits. While humanitarian migrants are eligible for federal means-tested programs for at
least five to seven years after entry, however, LPRs generally must have a substantial work
history or military connection, or must meet additional requirements to be eligible for such
183 In certain specified circumstances, the DHS Secretary could credit an alien with up to 12 additional months of
agricultural employment to meet this requirement.
184 As used here, applicable federal tax liability means all federal income taxes assessed in accordance with §6203 of
the Internal Revenue Code.
185 S. 744 §2212.
186 INA §245C, as added by S. 744 §2102.
187 S. 744 §2212. Worldwide and per-country immigration limits are described in INA §§201 and 202; also see in this
report “Immigrant Visas.” A conforming amendment (S. 744 §2212(b)) would amend the INA to exempt from the
worldwide numerical limits on permanent admissions aliens adjusted to LPR status under INA §245F.
188 CRS Legislative Attorney Kate M. Manuel and CRS Specialist in Immigration Policy Alison Siskin contributed to
this section of the report.
189 For a fuller discussion of humanitarian immigration, see in this report “Humanitarian Provisions.”
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programs, including in some cases a five year legal residency requirement.190 An additional factor
affecting eligibility for benefits is that not all households or all aliens fall squarely into one
category. “Mixed status”191 families and “quasi-legal”192 aliens pose ambiguities in the context of
federal benefit programs, and how they are treated varies considerably across programs.193
S. 744 would not amend federal laws on public benefits, but it would expressly bar aliens who
legalize under the bill from receiving federal means-tested benefits and certain other “benefits.”
Specifically, S. 744 states that aliens with RPI status (see “Registered Provisional Immigrants
(RPIs)”), blue card status (see “Agricultural Worker Legalization”), and W visa status (see “New
Nonimmigrant Visas for Lower-Skilled Workers”) would not be eligible for any federal means-
tested public benefit, as defined and implemented by Section 403 of PRWORA. The bill also
would limit the access of aliens who legalize under the bill to certain benefits of the Patient
Protection and Affordable Care Act (ACA).194 Aliens with RPI status and blue card status would
be considered lawfully present for all purposes under S. 744, except that they would not be not
entitled to the premium assistance tax credits195 or cost sharing subsidies established by the
ACA,196 and they would be exempt from the individual mandate to have health insurance.197 Such
aliens would be eligible, however, to purchase insurance through an exchange without any credits
or subsidies.198
Immigrant Visas199
Immigrants are persons admitted as legal permanent residents (LPRs) of the United States. Under
current law, permanent admissions are subject to a complex set of numerical limits and preference
categories that give priority for admission on the basis of family relationships, an offer or
employment in the United States, and geographic diversity of sending countries. These limits
include an annual flexible worldwide cap of 675,000 immigrants, plus refugees and asylees. The
INA specifies that each year, countries are held to a numerical limit of 7% of the worldwide level
of U.S. immigrant admissions, known as per-country limits. The pool of people who are eligible
to immigrate to the United States as LPRs each year typically exceeds the worldwide level set by
U.S. immigration law, and as a consequence millions of prospective LPRs with approved
190 For a full discussion, see CRS Report RL33809, Noncitizen Eligibility for Federal Public Assistance: Policy
Overview and Trends, by Ruth Ellen Wasem
191 Mixed status families refer to families (households) in which some members are unauthorized and some are U.S.
citizens or LPRs, including for example households with unauthorized parents and U.S.-born (and therefore U.S.
citizen) children.
192 In certain circumstances, DHS issues temporary employment authorization documents (EADs) to otherwise-
unauthorized aliens. These “quasi-legal” aliens are permitted to obtain Social Security numbers, but are ineligible for
certain benefits. See CRS Report RL32004, Social Security Benefits for Noncitizens, by Dawn Nuschler and Alison
Siskin.
193 CRS Report RL34500, Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, by Ruth Ellen Wasem.
194 P.L. 111-148 as amended by P.L. 111-152, known as the Affordable Care Act (ACA).
195 §36B of the Internal Revenue Code of 1986, as added by the ACA.
196 §1402(e) of the ACA.
197 Section 5000A(d)(3) of the Internal Revenue Code of 1986, as added by ACA.
198 For a fuller discussion of the ACA, see CRS Report R43048, Overview of Private Health Insurance Provisions in
the Patient Protection and Affordable Care Act (ACA), by Annie L. Mach.
199 CRS Analyst in Immigration Policy William Kandel, CRS Legislative Attorney Margaret Mikyung Lee, and CRS
Specialist in Immigration Policy Alison Siskin contributed to this section of the report.
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petitions are waiting to receive a numerically limited visa (commonly referred to as the “backlog”
or “queue”). The immediate relatives of U.S. citizens (i.e., their spouses and unmarried minor
children, and the parents of adult U.S. citizens) are admitted outside of the numerical limits and
are the flexible component of the worldwide cap.
S. 744 would revise the numerical limits on legal permanent immigration and would alter the
system that allocates the visas. It would repeal the Diversity Visa Program200 beginning in
FY2015, but enable those who received diversity visas for FY2013 and FY2014 to be eligible to
obtain LPR status. Two new “merit-based” categories would be created (see “Merit-Based Track
One” and “Merit-Based Track Two”), one of which would be designed, in part, to replace the
diversity visa. The basic worldwide limits on family- and employment-based preference (i.e.,
numerically capped) visas would be unchanged at 480,000 and 140,000, respectively; but the bill
would allow the allocation of unused roll-over and recaptured visas from previous years,201 would
eliminate the per-country ceiling for employment-based preferences, and would increase the per-
country ceiling for family-based preferences from 7% to 15%,202 in addition to other changes to
these systems (see “Family-Based Immigration” and “Employment-Based Immigration”). S. 744
also would modify rules for investor visas (see “Investor Visas”), and include provisions to
promote immigrant integration (see “Immigrant Integration”).
In addition, S. 744 would make numerous other revisions to LPR immigration, including new
procedures for how DHS and DOS manage visa backlogs, new provisions for fiancés and
fiancées of LPRs, changes to the petition process when the sponsoring relative dies, and changes
to certain country-specific and other special immigrant visas.203
Point Merit-Based Systems
S. 744 would include two different “merit-based” systems: one designed as a point system to
admit aliens based on their employment skills, and the other designed to expedite the admission
of certain people in the existing visa backlog.
Merit-Based Track One
The proposed Merit-Based Track One visa would replace the diversity visa and would admit
120,000 to 250,000 LPRs annually, with the annual flow based upon a sliding formula that would
depend on demand for the visa in the previous year. If the average annual unemployment rate in
the previous fiscal year was greater than 8.5%, the level would not be increased. Unused visas
from past years would be recaptured.204
200 The Diversity Immigrant Visa Program allocates visas to natives of countries from which immigrant admissions
were lower than a total of 50,000 over the preceding five years; see CRS Report R41747, Diversity Immigrant Visa
Lottery Issues, by Ruth Ellen Wasem.
201 S. 744 §2304.
202 S. 744 §2306. For a fuller discussion, see CRS Report R42866, Permanent Legal Immigration to the United States:
Policy Overview, by Ruth Ellen Wasem.
203 See generally, S. 744 §§2305, 2310-2322, 4804.
204 S. 744 §2301.
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For the first four years after enactment, Track One visas would be made available to foreign
nationals who meet existing criteria for the third-preference professional, skilled shortage, and
unskilled shortage workers. For the fifth and subsequent years, visas would be allocated as
follows:
• 50% would be allocated to Tier 1 based upon education (college plus),
employment experience, high-demand occupation, entrepreneurship, younger
workers, English language, familial relationship to a U.S. citizen, country of
origin diversity, and civic engagement.
• 50% would be allocated to Tier 2 based upon employment in high-demand
occupations that require little to medium preparation (high school diploma or
GED) and caregivers, younger workers, English language, familial relationship to
a U.S. citizen, country of origin diversity, and civic engagement.
Foreign nationals who have pending LPR petitions or who acquire RPI status would not be
eligible for Track One visas. GAO would be required to evaluate how this point system functions
and report to Congress not later than seven years after enactment.
Merit-Based Track Two
S. 744 would create a second Merit System (Track Two) that has four components.205 The first
would consist of employment preference petitioners who filed before enactment of S. 744 and
whose petitions were pending (i.e., were in the visa queue backlog) for at least five years. The
second would consist of family preference petitioners who filed before enactment and whose
petitions were pending (i.e., were in the visa queue backlog) for at least five years. The third
would consist of persons filing current third- or fourth-preference family petitioners during the
first 18 months after the date of enactment (i.e., before the bill’s final changes to the family
preference categories become effective; see “Family-Based Immigration”) and whose visas are
not issued during the first five years after the bill’s date of enactment. The fourth would consist of
long-term workers (other than W visa holders) who worked 10 years in a legally present status
with employment authorization, a category apparently designed to describe RPIs.
Under S. 744, the first two components of the Track Two merit system would function as current
backlog reduction, as visas would be issued to one-seventh of the petitioners in these two
categories, ordered by filing date, during each year from FY2015 through FY2021, regardless of
country of origin or other numerical limits. During FY2022-FY2023, visas would be issued to the
current family third- and fourth-preference petitioners filing after the date of enactment, with one
half of such filers receiving visas in each of these years (ordered by filing date). These visas
would thus accommodate certain family petitioners who no longer would be eligible following
the implementation of reforms to the family preference system in S. 744 (see “Family-Based
Immigration”).
Ten years after enactment of S. 744 (i.e., beginning in FY2024), the Track Two merit system
would become a pathway for RPIs adjusting to LPR status. Beginning in FY2029, aliens would
205 S. 744 §2302.
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be required to have been lawfully present in an “employment authorized status” for 20 years prior
to filing for Track Two merit adjustment.206
Family-Based Immigration
Under current law, to qualify as a family-based LPR, a foreign national must be a spouse or minor
child of a U.S. citizen; a parent, adult child, or sibling of an adult U.S. citizen; or a spouse or
unmarried child of a lawful permanent resident. At least 226,000 and no more than 480,000
family preference LPRs are admitted each year within four different preference categories.
Immediate relatives of U.S. citizens may be eligible for non-preference (i.e., uncapped) visas.
Section 2305 of S. 744 would revise the family-based system in two main ways. First, it would
reclassify spouses and minor unmarried children of LPRs as immediate relatives, making them
exempt from family preference numerical limits. Second, S. 744 would reallocate family
preference visas in two stages. For the first 18 months after enactment, family preference visas
would be allocated as follows: (1) adult unmarried children of U.S. citizens would be capped at
20% of the worldwide limit for family-preference immigrants; (2) adult unmarried children of
LPRs would be capped at 20% of the worldwide limit for family-preference immigrants plus
unused visas from the first category; (3) adult married children of U.S. citizens would be capped
at 20% of the worldwide limit for family-preference immigrants, plus unused visas from the first
two categories; and (4) siblings of U.S. citizens would be capped at 40% of the worldwide limit
for family-preference immigrants, plus unused visas from the first three categories.
Beginning 18 months after enactment, S. 744 would eliminate the current family fourth-
preference category for adult siblings of U.S. citizens,207 and allocate the family preference visas
as follows: U.S. citizens’ unmarried sons or daughters would not exceed 35% of worldwide level;
U.S. citizens’ married sons or daughters 31 years of age or younger (at the time of filing) would
not exceed 25% of the worldwide level;208 and LPRs’ unmarried sons and daughters would not
exceed 40% of the worldwide level.209
In addition, S. 744 would make nonimmigrant V visas available to all persons with approved
petitions pending within a family preference category. Thus, U.S. citizens’ unmarried sons and
daughters and LPRs’ unmarried sons and daughters, as well as persons who are U.S. citizens’
married sons and daughters under age 31, could reside in the United States until their visa date
becomes current. They would also be granted work authorization during that period. U.S. citizens’
siblings and adult sons and daughters age 31 or older with pending family preference visas could
reside in the United States for 60 days per year, but would not be authorized to work.
Employment-Based Immigration
The current employment-based LPR visa system consists of five numerically limited preference
categories. To qualify within one of these categories, a foreign national must be an employee
206 S. 744 §2302.
207 INA §203(a)(4).
208 Under INA §203(a)(3), the current family third-preference category for married sons and daughters does not include
an age limit.
209 S. 744 §2307.
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whom a U.S. employer has received approval from the Department of Labor to hire; a person of
extraordinary or exceptional ability in specified areas; an investor who will start a business that
creates at least 10 new jobs; or someone who meets the narrow definition of the “special
immigrant” category.210 The INA currently allocates 140,000 admissions annually for
employment-preference immigrants.
S. 744 would make substantial changes to the employment-based system. Foremost, the bill
would exempt from the numerical limits on employment-based LPRs the following:
• derivatives (i.e., accompanying immediate family members) of employment-
based LPRs;
• persons of extraordinary ability in the arts, sciences, education, business, or
athletics; outstanding professors and researchers; and certain multinational
executives and managers, who are currently first-preference employment-based;
• persons who earned a doctorate degree from an institution of higher education in
the United States or the foreign equivalent; persons who earned a graduate degree
in STEM fields from a U.S. institution within the five-year period before the
petition filing date and have a U.S. offer of employment in the related field; and
• foreign national physicians who have completed foreign residence requirements
under INA Section 212(e).211
The bill would make the first-preference employment-based category exempt from numerical
limits, and amend that category to include aliens who are members of the professions holding
advanced degrees who have a U.S. job offer (subject to a “national interest” waiver), including
alien physicians accepted to a U.S. residency or fellowship program, or prospective employees of
national security facilities. The second-preference category would consist of advanced degree
holders and generally would be allocated 40% of 140,000; but aliens with advanced degree in
science, technology, engineering, or math (STEM) fields would be exempted from numerical
limits if they have a job offer and meet other requirements. Employers petitioning for such aliens
also would be exempted from labor certification required under INA Section 212(a)(5).212
S. 744 also would change certain procedures for admitting second-preference employment-based
immigrants to facilitate physician immigration (also see “Conrad State 30 Program”). Under the
bill, certain nonimmigrant alien physicians would be exempt from numerical limits if they adjust
to LPR status as EB-2 immigrants.213 And EB-2 labor certification requirements would be waived
for certain alien physicians.214
S. 744 also would amend the third-preference employment-based category (i.e., skilled workers
with at least two years training, professionals with baccalaureate degrees, and unskilled workers
in occupations in which U.S. workers are in short supply) from 28.6% to 40% of the worldwide
level and would repeal the cap of 10,000 on unskilled workers within that 40%. It would also
210 Special immigrants include ministers of religion, religious workers other than ministers, and certain employees of
the U.S. government abroad.
211 S. 744 §2307.
212 S. 744 §2307.
213 S. 744 §2307(b)(1).
214 S. 744 §2402.
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amend the INA to increase visa allocation to fourth-preference employment-based special
immigrants and fifth-preference employment-based employment creation/investors from 7.1%
each to 10% each. The bill would also facilitate the admission and naturalization of aliens who are
current or potential employees of certain federal national security facilities.215
Investor Visas
There are currently one category of immigrant investor visas (admitted as conditional LPRs) and
two categories of nonimmigrant investor visas.216 These investor visas are intended to benefit the
U.S. economy by providing an influx of foreign capital and stimulating job creation. S. 744
would make changes to these existing visas and also create new immigrant and nonimmigrant
investor categories (with respect to the latter, see “New Nonimmigrant Investor Visas”).
Changes to the EB-5 Category
Under current law, the visa category used for immigrant investors is the fifth-preference
employment-based (EB-5) visa category, which allows for up to 10,000 admissions annually and
generally requires a minimum $1 million investment.217 The minimum is reduced to $500,000 for
aliens who invest in certain targeted investment programs (known as regional centers) through the
Regional Center Pilot Program.218 The pilot program is set to expire at the end of FY2015.
S. 744 would exempt spouses and children (derivatives) of EB-5 petitioners from the numerical
limits. It would also redefine “Target Employment Area” to include areas with high poverty, as
with other employment-based categories. Section 2308 would include communities adversely
affected by a recommendation by the Defense Base Closure and Realignment Commission as
targeted employment areas for purposes of satisfying requirements for fifth-preference
employment creation/investors. In addition, beginning on January 1, 2016, the bill would begin
automatically adjusting the required investment amount by the Consumer Price Index (CPI-U)
every five years.219 S. 744 also would specify the criteria for removing or terminating an alien’s
conditional LPR status and would permit the Secretary of DHS to delegate this authority to the
Secretary of Commerce.220
S. 744 would permanently authorize the Regional Center Pilot program and would make
numerous changes to the program. Currently, almost all the requirements related to the Regional
Center program are in regulation, not in statute. The bill would establish statutory requirements
for those applying for a regional center designation, and specify the type of information that
should be contained in a regional center proposal. It would also create a mechanism for a
commercial enterprise affiliated with a regional center to be preapproved. The Secretary of DHS
would also be authorized to establish a premium processing option for aliens investing in
215 S. 744 §2307.
216 For a fuller discussion, see CRS Report RL33844, Foreign Investor Visas: Policies and Issues, by Alison Siskin.
217 Only $500,000 is required if investing in an area of high unemployment or a rural area (i.e., a “Targeted
Employment Area”).
218 A regional center is a private enterprise/corporation or a regional governmental agency with an investment program
within a defined geographic area.
219 Automatic adjustments would not occur if the amount is adjusted by the Secretary of Commerce.
220 S. 744 §§4805-4806.
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preapproved commercial enterprises. The bill would also create a series of sanctions for regional
centers that violate newly created financial reporting requirements.221
New EB-6 Investor Visas
Subtitle H of Title IV of S. 744 would create a new EB-6 immigrant visa category designed to
permit the entry of up to 10,000 immigrant entrepreneurs per year. (The bill also would create a
new nonimmigrant entrepreneur visa; see “New Nonimmigrant Investor Visas” “New
Nonimmigrant Investor Visas”). To qualify for an EB-6 visa, the alien would have to be a
qualified entrepreneur;222 to have maintained a valid nonimmigrant status during the past two
years; and to have had significant ownership in a business that created at least 5 jobs and either
raised $500,000 from qualified investors or generated not less than $750,000 in annual revenue.
Broadly similar requirements would apply for qualified entrepreneurs with advanced STEM
degrees seeking to become EB-6 LPRs.223
The DHS Secretary would be required to promulgate regulations covering EB-6 (and
nonimmigrant investor visas) within 16 months, and to ensure that the visas are implemented in a
manner that protects national security and promotes economic growth, job creation, and
competitiveness. The minimum investments and other dollar amounts for EB-6 eligibility would
be adjusted every five years based on the CPI-U, in a manner similar to the EB-5 category.224
Immigrant Integration
S. 744 would define immigrant integration and rename the USCIS’s Office of Citizenship as the
Office of Citizenship and New Americans (OCNA). OCNA’s functions would include promoting
institutions and providing training and educational materials on aliens’ citizenship responsibilities
and leading such activities across federal agencies and with state and local entities.
The OCNA would also work with the Task Force on New Americans (TFNA), to be established
within 18 months of enactment. The Task Force would be charged with coordinating federal
program and policy responses to integration issues and advising and assisting the federal
government in carrying out the immigration integration policies and goals in the bill. Membership
would include the Secretaries of most Cabinet-level executive branch agencies. TFNA members
would liaison with their agencies to ensure agency participation in creating goals, developing
indicators, facilitating state and local participation, and collecting data. Eighteen months after
formation, the TFNA would provide recommendations on these issues and assist in developing
legislative and policy proposals to DHS and the Domestic Policy Council.225
The OCNA, working with a new nonprofit United States Citizenship Foundation, also would
administer a pair of grant programs: Initial Entry, Adjustment, and Citizenship Assistance
(IEACA) grants to provide direct assistance to aliens who apply for provisional legal status,
221 S. 744 §4404.
222 A qualified entrepreneur would be defined as an individual with significant ownership in a business entity who is
employed in a senior executive position and had a substantial role in founding or growth of such an entity.
223 S. 744 §4802.
224 S. 744 §4803.
225 S. 744 §§2511, 2521-2524.
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adjust to LPR status, or seek naturalization;226 and a Pilot Grant Program (PGP) to support state
and local government activities fostering immigrant integration.227 The two grant programs would
be authorized $100 million for the FY2014-FY2018 period and such sums as may be necessary
for subsequent years.228
With the express objective of reducing “barriers to naturalization,” S. 744 would waive the
English and history and civics naturalization requirements for persons who, on the date of
application, were unable to comply with such requirements because of physical or mental
disability, or were age 65+ with five years as an LPR. It would waive the English requirement for
persons above ages 50, 55, and 60, if they had 20, 15, and 10 years, respectively, as an LPR. It
would also waive the civics requirement for persons aged 60+ with 10 years as an LPR on a case-
by-case basis. The bill would allow individuals to continue to use paper-based application forms
to petition for LPR status or U.S. citizenship until October 1, 2020.229
Nonimmigrant Visas
Nonimmigrants—such as tourists, foreign students, diplomats, temporary workers, cultural
exchange participants, or intracompany business personnel—are admitted for a specific purpose
and a temporary period of time.230 Nonimmigrants are required to leave the country when their
visas expire, though certain classes of nonimmigrants are “dual intent,” meaning they may adjust
to LPR status if they otherwise qualify. Current law describes 24 major nonimmigrant visa
categories, and over 70 specific types of nonimmigrant visas, which are often referred to by the
letter that denotes their section in the statute, such as H-2A agricultural workers, F-1 foreign
students, or J-1 cultural exchange visitors.
S. 744 would make extensive revisions to nonimmigrant categories for professional specialty
workers (see “H-1B Professional Specialty Workers”), intra-company transferees (see “L Visa
Intra-Company Transferees”), and other skilled workers (see “Other Skilled and Professional
Worker Visas”). The bill also would reform existing lower-skilled visa categories (see “Reforms
to the H-2B Program”) and establish a new “W” temporary worker category (see “New
Nonimmigrant Visas for Lower-Skilled Workers”). Additional nonimmigrant provisions in S. 744
would be designed to promote tourism (see “Tourism-Related Provisions”) and would make
changes to student and other nonimmigrant visas (see “Other Nonimmigrant Visa Changes”).
226 S. 744 §§2531-2537.
227 S. 744 §§2538-2539.
228 S. 744 §2541.
229 S. 744 §§2551-2552.
230 For a fuller discussion of nonimmigrant visas, see CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, by Ruth Ellen Wasem.
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High-Skilled Workers231
H-1B Professional Specialty Workers
Current law makes H-1B visas available for “professional specialty workers,” an employment
category closely associated with science, technology, engineering, and mathematics (STEM)
fields, but not limited to them.232 H-1B visas are good for three years, renewable once; and they
are “dual intent,” meaning aliens on H-1B visas may seek LPR status without leaving the United
States. Current law generally limits annual H-1B admissions to 65,000, but most H-1B workers
are exempted from the limits because they are returning workers or they work for universities and
nonprofit research facilities that are exempt from the cap.233
Employers seeking to hire an H-1B worker must attest that the employer will pay the
nonimmigrant the greater of the actual wages paid to other employees in the same job or the
prevailing wages for that occupation; that working conditions for the nonimmigrant will not
adversely affect other workers; and that there is no applicable strike or lockout. The employer
must provide a copy of the labor attestation to representatives of the bargaining unit where
applicable, or must post the labor attestation in conspicuous locations at the work site.
Prospective H-1B nonimmigrants must demonstrate to USCIS that they have the requisite
education and work experience for the posted positions.234
Changes to Facilitate H-1B Recruitment
In recent years, the H-1B visa has been an important pathway for many foreign students seeking
employment in the United States after completing their degrees, and an important avenue for
many U.S. businesses seeking to recruit high-skilled foreign workers.235 Thus, despite the fact
that a majority of H-1B workers are exempted from annual limits, applications for new H-1B
workers have routinely exceeded such limits in recent years—in some years exceeding limits
during the first week or even on the first day that applications are excepted.236
S. 744 would seek to address perceived H-1B shortages by replacing the 65,000 per year cap on
new H-1B admissions with a flexible cap that would range from a floor of 115,000 to a ceiling of
180,000 annually, with a “market-based” mechanism to increase or decrease the cap based on
demand during the previous year (i.e., whether and how quickly the previous year’s limit was
reached).237 Up to 25,000 STEM advanced degree graduates would be exempted from the cap.238
231 CRS Legislative Attorney Margaret Mikyung Lee and CRS Specialist in Immigration Policy Alison Siskin
contributed to this section of the report.
232 For a fuller discussion of science, technology, engineering, and mathematics (STEM) fields, see CRS Report
R42642, Science, Technology, Engineering, and Mathematics (STEM) Education: A Primer, by Heather B. Gonzalez
and Jeffrey J. Kuenzi.
233 For a fuller discussion of H-1B visas, see CRS Report R42530, Immigration of Foreign Nationals with Science,
Technology, Engineering, and Mathematics (STEM) Degrees , by Ruth Ellen Wasem.
234 Ibid.
235 See CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and
Mathematics (STEM) Degrees , by Ruth Ellen Wasem.
236 Ibid.
237 S. 744 §4101(a).
238 S. 744 §4101(b).
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Spouses of H-1B workers would be permitted to work, thereby eliminating a potential barrier to
H-1B recruitment and also likely further increasing the number of skilled foreign workers
admitted (i.e., because many H-1B nonimmigrants have spouses who are also skilled workers).239
And the bill would ease the renewal of H-1B (and L visas; see “L Visa Intra-Company
Transferees”) by limiting the review of such renewals to material errors, substantive changes, and
newly discovered information.240 In addition, H-1B workers would have a 60-day grace period
after loss of a job to seek additional employment without losing their visa status.241
Changes to Protect U.S. Workers
In addition to these concerns about whether employers have adequate access to H-1B workers,
some Members of Congress have raised questions about whether H-1B workers may have an
adverse effect on U.S. workers, including possibly by placing downward pressure on wages
and/or by discouraging U.S. workers from entering STEM fields.242 S. 744 would establish two
new fees apparently designed to address these concerns: a $1,000 fee for Labor Certification
Applications (LCAs) for EB-2 and EB-3 immigrants, with the fee designated to fund STEM
grants, scholarships, and training;243 and a $1,250-$2,500 fee for H-1B and L visas, with the fee
designated to provide ongoing funding for the CIR Trust Fund.244
Subtitle B of Title IV of S. 744 also would seek to protect U.S. workers by modifying H-1B
application requirements and procedures for investigating H-1B complaints. The bill would
amend the H-1B labor certification process to revise wage requirements based on Department of
Labor (DOL) surveys,245 and would require employers to advertise for U.S. workers on a DOL
website.246 With some exceptions, the four-level wage structure for current H-1B workers would
be changed to a three-level wage structure.247
The subtitle would establish two new classes of H-1B employers: H-1B dependent employers,
defined as a function of the proportion of an employer’s workforce which consists of H-1B
workers; and H-1B skilled worker dependent employers, defined as a function of the proportion
of an employer’s workforce which consists of H-1B workers in highly skilled occupations. New
rules to prevent H-1B workers from being hired intentionally to displace U.S. workers would be
established, with different requirements for each type of employer. Employers would be required
to make good faith efforts to recruit U.S. workers prior to hiring H-1B workers, and H-1B skilled
worker dependent employers would be required to offer a position to any equally or better
qualified U.S. worker applying for a job otherwise to be filled by an H-1B worker. Certain H-1B
239 S. 744 §4102. Spouses of L workers would similarly be permitted to work.
240 S. 744 §4103(a).
241 S. 744 §4103(b).
242 See CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and
Mathematics (STEM) Degrees , by Ruth Ellen Wasem.
243 S. 744 §4104.
244 S. 744 §§4105 and 6(a)(2)(B)(vii).
245 S. 744 §4211(a).
246 S. 744 §4211(b) and §4231.
247 S. 744 §4211(a).
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dependent employers would not be permitted to outsource H-1B workers, and employers who are
eligible to outsource H-1Bs would pay a fee of $500 per outplaced worker.248
In addition, the subtitle would revise requirements for H-1Cs (nonimmigrant nurses), including
by reducing the number of visas available for such workers from 500 to 300 per year, and by
facilitating visa portability for such workers.249 Section 4213 would impose additional restrictions
on how employers advertise for H-1B positions, and would impose limits on the total number of
H-1B and L workers certain employers can hire. The DOL would be permitted to review an H-1B
LCA for evidence of fraud and to investigate and adjudicate any evidence of fraud identified.250
Subtitle B of Title IV of S. 744 also would broaden DOL’s authority to investigate alleged
employer violations, would require DOL to conduct annual compliance audits of certain
employers, and would increase information sharing between DOL and USCIS as well as DOL
reporting requirements.251 Employers who willfully violate the terms of their LCAs would be
subject to increased fines and would be liable for the lost wages and benefits of employees
harmed by such violations.252 Employers also would be prohibited from failing to offer H-1Bs
insurance, pension plans, and bonuses offered to U.S. workers, and from penalizing H-1B
workers for terminating employment before a previously agreed date.253
In addition, the subtitle would require DHS and DOS to provide H -1B and L workers with
information regarding their rights and employer obligations.254 Certain H-1B dependent
employers would be required to pay an additional $5,000-$10,000 in filing fees beginning in
FY2015 (also see “L Visa Intra-Company Transferees” regarding similar fees for L dependent
employers).255 The bill would further authorize fees for premium processing of employment-
based immigrant petitions.256 And Section 4237 would permit visa portability and streamline
adjustment of status for certain aliens with long-standing employment-based petitions.
L Visa Intra-Company Transferees
Current law permits certain workers to enter the United States on nonimmigrant L visas as
intracompany transferees. The L visa is designed for executives, managers, and employees with
specialized knowledge of the firm’s products. It permits multinational firms to transfer top-level
personnel to their locations in the United States for up to five to seven years.257 Some Members of
Congress have raised concerns that the L visa may displace U.S. workers who had been employed
in those positions. These employees are often comparable in skills and occupations to H-1B
workers, yet lack the labor market protections the law sets for hiring H-1B workers. These
248 S. 744 §4211.
249 S. 744 §4212. Visa portability refers to the ability of a nonimmigrant worker to change employers.
250 S. 744 §4214.
251 S. 744 §§4221, 4223, 4224, and 4225.
252 S. 744 §4222.
253 S. 744 §4222.
254 S. 744 §4232.
255 S. 744 §§4233.
256 S. 744 §4234.
257 For a fuller discussion, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and
Protections, by Ruth Ellen Wasem.
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concerns have been raised, in particular, with respect to certain outsourcing and information
technology firms that employ L workers as subcontractors within the United States.
In addition to extending certain H-1B protections described in Subtitle B of Title IV of S. 744 to
L visa holders (see “Changes to Protect U.S. Workers”), S. 744 includes additional L visa
protections. The bill would add prohibitions on the outsourcing and outplacement of L
employees, including by charging a $500 fee to be deposited in the STEM Education and
Training Account.258 Employers seeking to bring an L-visa worker to the United States to open a
new office would face special application requirements.259 DHS would be required to work with
DOS to verify the existence of multinational companies petitioning for the L workers.260 And
Section 4304 would impose caps on the total proportion of certain employers’ workforces that
may consist of L and H-1B workers, falling from an upper limit of 75% in FY2015 to an upper
limit of 50% after FY2016.261 Section 4305 would also impose additional fees of $5,000-$10,000
for certain H-1B/L-dependent employers beginning in FY2014.262
With respect to compliance, DHS would be authorized to investigate and adjudicate alleged
employer violations of L-visa program requirements for up to 24 months after the alleged
violation; and DOL would be required to conduct annual compliance audits of certain
employers.263 The subtitle also would impose civil monetary penalties and other remedies for
violations, including debarment from L-worker petitions and liability for lost wages and benefits
to employees harmed by violations.264 In addition, Section 4308 would add whistleblower
protections for L-workers. And DHS would be required to report on the L-visa blanket petition
process.265
Other Skilled and Professional Worker Visas
Current law includes two nonimmigrant visa categories similar to H-1B visas for temporary
professional workers from specific countries: North American Free Trade Agreement (NAFTA)
TN visas for Canadian and Mexican temporary professional workers, and E-3 treaty professional
visas for Australians.266 In addition, several employment-based nonimmigrant visas are intended
to attract outstanding individuals, entrepreneurs, professionals, and high-skilled workers. These
nonimmigrant visa categories include persons with outstanding and extraordinary ability (O
visas), cultural exchange workers (J visas), and international investors (E visas).
S. 744 would add visa portability for foreign nationals on O-1 visas and would add flexibility to
the requirements for being admitted on an O-1 visa based on achievement in motion picture or
258 S. 744 §4301.
259 S. 744 §4302.
260 S. 744 §4303.
261 S. 744 §4304.
262 S. 744 §4305.
263 S. 744 §4306.
264 S. 744 §4307.
265 S. 744 §§4309 and 4311.
266 §501 of P.L. 109-13, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005.
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television production.267 The bill also would make changes to the E and J visa programs, and
would establish a new nonimmigrant X visa for entrepreneurs.
Reforms to E Treaty Visas
Current law with respect to nonimmigrant investor visas includes provisions for E-1 visas for
treaty traders and E-2 visas for treaty investors.268 S. 744 would amend the requirements for the E
visa to allow E visas to be issued to citizens from countries where there is a bilateral investment
treaty or a free trade agreement.269 S. 744 would amend the E-3 visa category so that nationals of
Ireland would be eligible. The Irish national would not be required to be employed in a
professional specialty, and could provide services as an employee, provided he/she has at least a
high school education or, within five years, two years work experience in an occupation that
requires two years of training or experience.270 There would be a limit of 10,500 E-3 visas per
year for Irish nationals.
The bill also would create a new E-4 visa category that would be limited to 5,000 visas per year
per country; only principal aliens would be counted against the cap. Additionally, the bill would
create an E-5 visa category for South Korean workers in specialty occupations that would be
limited to 5,000 visas annually. Employers seeking to hire E-4 or E-5 workers would have to file
a labor attestation form with DOL.271 A new E-6 nonimmigrant visa category would be
established for nationals of eligible sub-Saharan African countries272 or beneficiary countries of
the Caribbean Basin Economic Recovery Act273 who are coming to the United States to work, and
have at least a high school education or, within the past five years, two years of work experience
in an occupation that requires at least two years of training/experience. These visas would be
limited to 10,500 per year.274
Conrad State 30 Program
Currently, foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant
visas in order to receive graduate medical education and training. Such FMGs must return to their
home countries after completing their education or training for at least two years before they can
apply for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of the
foreign residency requirement. States are permitted to sponsor up to 30 waivers per state, per year
on behalf of FMGs under a temporary program, known as the Conrad State Program or the
267 S. 744 §4404.
268 There is also an E-3 category for Australian specialty workers coming to the United States under the provision of the
U.S.-Australian Free Trade Agreement. The E-3 category is limited to 10,500 visas a year. For more information on the
E-3 category, see CRS Report RL32982, Immigration Issues in Trade Agreements, by Ruth Ellen Wasem.
269 Currently, E-1 and E-2 visas can only be issued to nationals from countries that have treaties of commerce and
navigation. Free trade agreements are not considered treaties of commerce and navigation.
270 S. 744 §4403.
271 For more on labor attestation, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and
Protections, by Ruth Ellen Wasem.
272 These countries would be defined by §104 of the African Growth and Opportunity Act (19 U.S.C. §3703).
273 19 U.S.C. §§2701 et seq.
274 S. 744 §4402.
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Conrad 30 Program. The objective of the Conrad 30 Program is to encourage immigration of
foreign physicians to medically underserved communities.
S. 744 would make the Conrad 30 waiver program permanent, and would allow the program to
grow by up to 5 waivers per year based on demand for the program, or to be reduced (though
never below 30) based on falling demand.275 The bill also includes a number of provisions to
regulate working conditions and add flexibility to the J visa program for such physicians.276 And
S. 744 would make changes to facilitate physicians holding J or H-1B visas seeking to remain in
the United States, including by allowing dual intent for J-1 foreign medical graduates,277 by
making alien physicians who received a Conrad waiver or completed their two-year home
residency requirement exempt from numerical limits if they adjust to LPR status as EB-2
immigrants (see “Employment-Based Immigration” “Employment-Based Immigration”),278 and
by making the spouses and children of J-1s no longer subject to the two-year home residency
requirement.279 The bill would also allow physicians in H-1B status and completing their medical
training to automatically have such status extended.280
New Nonimmigrant Investor Visas
In addition to creating a new EB-6 entrepreneurship LPR visa (see “Investor Visas”), S. 744
would create a new nonimmigrant X visa for qualified entrepreneurs whose U.S. business entities
attracted at least $100,000 in total investment from qualified investors281 during the previous
three years, or whose businesses created at least three jobs and generated at least $250,000 in
annual revenue during the previous two years. Nonimmigrants with X visas would be admitted
for three years, and the visa would be renewable for additional three-year periods if the alien’s
business met similar criteria. In addition, the visa would be renewable twice for periods of one
year (a total of two years) under criteria established by DHS in consultation with the Secretary of
Commerce if the alien was making substantial progress towards meeting the visa requirements
and such renewal was economically beneficial to the United States.282 There would be a $1,000
fee for each nonimmigrant admitted under an X visa that would be deposited into the CIR Trust
Fund.283
275 S. 744 §2401.
276 S. 744 §2403.
277 S. 744 §2403(c).
278 S. 744 §2307(b)(1).
279 S. 744 §2405(c).
280 S. 744 §2405(b). If the petition for extending H-1B status is eventually denied, the employment authorization would
expire 30 days after the denial.
281 Qualified investors include a qualified venture capitalist, a qualified super angel investor, a qualified government
entity, a qualified community development financial institution, qualified startup accelerator, or such other type of
entity or investors, as determined by the Secretary, or any combination of such entities or investors.
282 S. 744 §4801.
283 §4801 indicates that X-1 visa fees shall be deposited in the Comprehensive Immigration Reform Trust Fund
established under “§6(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act”; this may represent a
drafting error.
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Lower-Skilled Workers284
Reforms to the H-2B Program
Current law permits the admission of H-2B visa holders to perform temporary, non-agricultural
work when sufficient qualified U.S. workers are not available. Employers must apply to DOL to
certify that such employment will not have an adverse effect on the wages or working conditions
of U.S. workers.285 H-2B visas generally are limited to 66,000 new visas per year.286
S. 744 would increase the number of H-2B workers eligible to be admitted in a year, while also
imposing additional requirements on H-2B employers. Renewing an H-2B returning worker
exemption from the annual cap in effect in FY2005-FY2007, the bill would provide that H-2B
nonimmigrants counted toward numerical limits for FY2013 would be exempt from numerical
limits for FY2014-FY2018.287 In another change, certain ski instructors now typically admitted as
H-2B nonimmigrants would be eligible for admission as P-visa athletes.288 With respect to
recruitment requirements, Section 4602 would require that an employer petitioning for an H-2B
worker attest that U.S. workers are not and will not be displaced, and would require such
employers to pay H-2B workers’ transportation costs and immigration fees, as well as a $500 fee
for labor certification, with the fee being deposited in the CIR Trust Fund.
In addition, Section 4211(a)(2) of S. 744 would revise INA Section 212(p) regarding computation
of prevailing wage levels to specify that wages for H-2B nonimmigrant workers shall be the
greater of the actual wage paid by the employer to other employees with similar experience and
qualifications for the job or the prevailing wage level for the occupational classification of the job
in the geographic area of the employment, based on the best information available at the time that
the application was filed. The best information available could be the wage for the occupation in
a collective bargaining agreement or the wage that applies to federal contracts (meaning,
presumably, the Davis-Bacon Act or Service Contract Act). If such information is inapplicable,
the best information could be a wage commensurate with the experience, training, and
supervision required for the job based on U.S. Bureau of Labor Statistics (BLS) data; or if BLS
data are unavailable, a wage from a private survey.
New Nonimmigrant Visas for Lower-Skilled Workers
Current law permits employers to hire certain lower-skilled foreign temporary workers, for
temporary or seasonal employment; but does not provide for nonimmigrant visas for lower-
skilled employment where the employer’s need is not temporary.289 Given the high level of labor
284 CRS Specialist in Immigration Policy Andorra Bruno and CRS Legislative Attorney Margaret Mikyung Lee
contributed to this section of the report.
285 See CRS Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by
Andorra Bruno. The requirement for H-2B labor certification is described in DHS regulations at 8 C.F.R.
214.2(h)(6)(iii)(C).
286 INA §214(g)(1)(B).
287 S. 744 §4601.
288 Ibid. P-visas are good for five years and may be renewed for up to five years; they are not subject to numerical
limits.
289 See CRS Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by
Andorra Bruno.
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force participation among unauthorized immigrants,290 some Members of Congress have argued
that increasing the number of employment-based lower-skilled nonimmigrant visas is a key
element of comprehensive immigration reform. S. 744 would address this policy goal by creating
a new “W” nonimmigrant visa category, which would accommodate ongoing employment in
lower-skilled agricultural and non-agricultural positions.
In general, W visas would differ from the current H-2A agricultural worker and H-2B
nonagricultural worker visas in that the W visas would not be limited to temporary or seasonal
work. W visas would be good for three years, and could be renewed.291 In addition, rather than
tying a worker’s nonimmigrant status to a single employer, as under the current H-2 visas, W
workers would be permitted to work for any employer that has registered within their respective
visa programs, with some restrictions in the case of contract agricultural workers.292 Another key
difference would be that prospective W employers, unlike prospective H-2 employers, would not
have to apply to the Department of Labor for labor certification. W visa holders would lose their
status if they are unemployed for a period of more than 60 days, though the DHS Secretary could
waive this requirement in certain cases. DHS and the U.S. Department of Agriculture (USDA)
would be required to establish an electronic monitoring system to monitor the presence and
employment of W workers.
W-3 and W-4 Agricultural Workers
Sections 2231 and 2232 of S. 744 would create new W-3 and W-4 nonimmigrant visas for
agricultural workers. The W-3 visa would be for contract agricultural workers and the W-4 visa
would be for at-will agricultural workers. W-3 and W-4 visas would be capped at 112,333 visas
per year during the program’s first five years, with provisions for the Secretary of Agriculture, in
consultation with the Secretary of Labor, to adjust these caps and to set visa limits for subsequent
years based on specified and other appropriate factors. W-3 and W-4 workers would not be
allowed to bring their spouses and children with them to the United States as dependents.
Beginning one year after W-3 and W-4 regulations go into effect,293 the H-2A program would be
eliminated, making the W-3 and W-4 the only nonimmigrant agricultural visas available to U.S.
employers.294
290 About four out of five unauthorized alien adults are estimated to be in the workforce; see archived CRS Report
R41207, Unauthorized Aliens in the United States, by Andorra Bruno.
291 Under S. 744 §4703, non-agricultural W-1 visas could be renewed an unlimited number of times. Under §2232,
agricultural W-3 and W-4 visas could be renewed for one additional three-year term, after which the visa holder would
be required to return to a residence outside the United States for at least three months, and then would be eligible to
apply for a new W visa.
292 A W-3 contract worker would be permitted to accept employment with a new registered employer after the worker
completes his or her existing contract, but a W-3 alien who voluntarily abandons employment before the end of the
contract period or whose employment is terminated for cause may not accept employment with another employer
without first departing the United States. Termination of a contract by mutual agreement would not be considered
voluntary abandonment.
293 These regulations would have to be issued not later than six months after the date of the enactment of S. 744, while
regulations implementing the W-3 and W-4 program would have to be issued not later than one year after the date of
the enactment of S. 744. S. 744 §§2232(b), 2241(b).
294 S. 744 §2233.
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As set forth in S. 744, employers seeking to hire W-3 or W-4 workers would be required to pay a
fee to cover the costs of the program and to register as designated agricultural employers.295 As
part of the registration process, an employer would have to document that he or she is engaged in
agriculture and needs specified agricultural occupations, and would have to estimate the number
and timing of needed workers. A registration would be good for three years and could be renewed
for another three years if the employer remains eligible.
In order to import W-3 or W-4 workers, designated agricultural employers would be required to
advertise jobs on a DOL job registry, to list the job for 45 days, and to offer employment to any
equally or better qualified U.S. worker who applies during this period. Employers could not
displace U.S. workers (except for good cause), as specifed. A designated agricultural employer
would have to submit a petition to the DHS Secretary not later than 45 days before the date of
need for workers. Unless the petition is incomplete or obviously inaccurate, the Secretary would
process the petition and approve or deny it within seven days of the filing date.
Under S. 744, W-3 and W-4 employers would be required to offer workers certain benefits and
wages.296 They would be required to guarantee employment to W-3 contract workers for at least
three-quarters of the contract period, with exceptions available in cases of natural disasters. If a
job is not covered by state workers’ compensation insurance, employers would be required to
provide comparable insurance at no cost. Certain W-3 and W-4 workers would be eligible for
housing or a housing allowance, as well as transportation expenses. Wage rates would be defined
based on one of six standard agricultural occupational classifications, with certain wages
specified and others to be determined by USDA in consultation with DOL.297 In general,
employers would be required to offer U.S. workers the same or better benefits and wages as W-3
and W-4 workers.298
Section 2232 of S. 744 further specifies that W-3 and W-4 workers would be covered by all
applicable labor and employment laws, including the Migrant and Seasonal Agricultural Workers
Protection Act. DOL would establish procedures to investigate complaints and to implement
penalties for non-compliance; and W-3 and W-4 workers would have whistleblower protections.
W-1 and W-2 Non-Agricultural Workers and Families
Sections 4702 and 4703 of S. 744 would create the new W-1 and W-2 visas. Previous proposals to
establish or expand temporary worker visas have been controversial, with business and labor
groups often taking strongly opposing positions about the size and details of such programs.
Partly to address the policy questions at the heart of these disagreements, S. 744 would establish a
Bureau of Labor Market Research as an independent statistical agency within USCIS. The Bureau
would be responsible for making recommendations about employment-based visa programs;
determining methodologies for the index used to calculate numerical limits in the W-1 program;
calculating annual changes to such limits, designating certain “shortage occupations” to be
partially exempted from such limits; conducting specialized employment surveys and reporting to
295 S. 744 §2232.
296 S. 744 §2232.
297 S. 744 §2232 would establish special procedures concerning housing, pay, and application requirements for certain
agricultural industries, including sheep- and goat herding, beekeeping, and open range production of livestock.
298 Employers would not have to offer U.S. workers a housing allowance, and would not have to pay or withhold from
W-3 or W-4 workers Federal Insurance Contribution Act (FICA) or Federal Unemployment Tax Act (FUTA) taxes.
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Congress on employment-based visa programs; and assisting with W visa recruitment, among
other duties.299
The W-1 visa program would be capped at 20,000 positions during the program’s first year,
climbing to 75,000 during the fourth year, with subsequent years calculated based on a formula
spelled out in S. 744. The total number of program positions would always range from 20,000 to
200,000 per year. Additional positions could be created for shortage occupations (as designated
by the Bureau) and as special allocations for certain employers who meet specified recruitment
requirements. Registered positions would be limited to lower-skilled occupations and generally to
metropolitan areas where the unemployment rate is 8.5% or less, though DHS could waive this
restriction under certain conditions.300
Aliens certified at a U.S. embassy or consulate as being eligible for a W-1 visa could be admitted
to work in a registered position with a registered W-1 employer in an eligible location, and would
be permitted to enter with dual intent (i.e., would not have to prove their intention to depart the
United States at the end of the visa term). Upon admission, W-1 visa holders would have to begin
working within 14 days of admission to meet the visa’s employment requirement. Spouses and
children of W-1 workers would be admissible as W-2 nonimmigrants and also would be
authorized to work in the United States.
Employers seeking to hire W-1 workers would be required to pay a fee to cover program costs
and to register as W-1 employers for three years at a time. Employers would be subject to fraud
detection investigations, and could be made ineligible for the W-1 program based on program
violations. Applications for being a registered employer would include the estimated number of
W-1 workers to be employed, while applications for designating a job as a registered position
would include descriptions of W-1 positions, and attestations about wages and recruitment efforts.
Employers could only hire W-1 workers if no qualified U.S. worker is available for the position
and could not hire a W-1 worker in the case of a strike or lockout. Employers would be required
to advertise positions for at least 30 days on a DOL website and with state workforce agencies,
and would have to meet additional recruitment requirements to be identified by DHS before a
position could be designated as a registered W-1 position.
W-1 wages would have to at least equal the higher rate of either the actual wages paid to other
employees or the prevailing wages in the area based on information from collective bargaining
agreements, federal contract wages, government surveys, or private surveys. Higher wage rates
would apply for workers hired as special allocations outside of the program’s numerical limits.301
W-1 employers whose workforces consist of more than 15% W nonimmigrants could not
outsource W-1 workers. And S. 744 includes a number of provisions designed to protect the terms
of W-1 employment, including the applicability of relevant labor laws, whistleblower protections,
a prohibition on treating W-1 workers as independent contractors, and provisions related to the
investigation of complaints against W-1 employers and the imposition of civil penalties and other
remedies for violations of W-1 employment conditions.
299 S. 744 §§4701(b)-(f).
300 All discussion of W-1 visas in the remainder of this section is based on provisions in S. 744 §4703.
301 These employers would be required to pay W-1 workers the greater of the Level IV wage provided by the Office of
Foreign Labor Certification of DOL or the average wage for the highest two-thirds of employees in the occupation in
the MSA of employment.
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Foreign Labor Contractors302
Some Members of Congress have argued that many migrant workers and other foreign workers
are vulnerable to exploitation at the hands of foreign labor contractors, smugglers, and human
traffickers.303 Contractors often play a critical role in the labor migration process by matching
willing workers with willing employers. Yet because many prospective migrants depend on such
“middle men” to help them enter the United States (legally or otherwise) and to connect them
with employers, contractors may take advantage of migrant workers to extract unfair payments or
other such concessions.
S. 744 would establish new requirements to regulate foreign labor contractors and to combat
human trafficking.304 The bill would require foreign labor contractors to provide workers with
written information, in English and the worker’s native language, about the terms and conditions
of employment, with information about the worker’s visa, and with other information.305
Employers and contractors would be prohibited from discriminating against workers on the basis
of race, sex, national origin, religion, age, disability, or other similar factors;306 and could not
charge workers a fee for contracting activity.307
To facilitate enforcement of these provisions, contractors would be required to register with DOL
every two years, to provide annual reports on their activities, and to post a bond ensuring their
ability to fulfill their responsibilities.308 The Secretary of Labor would maintain a list of registered
contractors, and the Secretary of State would provide relevant information to certain
nonimmigrant visa applicants.309 DOL would establish procedures to investigate complaints and
impose civil fines against noncompliant contractors or employers; and individuals also could sue
contractors for civil damages.310 Employers would be required to use registered contractors.311
Tourism-Related Provisions312
Several provisions in S. 744 are intended to encourage tourism to the United States. The bill
would amend the INA to establish a pilot fee-based premium processing service to expedite visa
interview appointments.313 It would also direct the Secretary of DOS to require overseas visa
302 CRS Legislative Attorney Jon O. Shimabukuro contributed to this section of the report.
303 See for example, U.S. Congress, Senate Committee on Foreign Relations, The Next Ten Years in the Fight Against
Human Trafficking, 112th Cong., 2nd sess., July 17, 2012.
304 Human trafficking refers to the recruitment, transfer, harboring, or receipt of persons by means of the threat or use
of force, along with other forms of similar coercion; see CRS Report RL34317, Trafficking in Persons: U.S. Policy and
Issues for Congress, by Alison Siskin and Liana Sun Wyler.
305 S. 744 §3602.
306 S. 744 §3603.
307 S. 744 §3604.
308 S. 744 §§3605, 3606.
309 S. 744 §§3607-3609.
310 S. 744 §3610.
311 S. 744 §3610.
312 CRS Legislative Attorney Margaret Mikyung Lee and CRS Specialist in Immigration Policy Alison Siskin
contributed to this section of the report.
313 S. 744 §4501.
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processing posts to report monthly on the availability of visa appointments during the previous
two years to allow applicants to identify periods of low demand when wait times are lower.314 In
addition, S. 744 would require, not later than 90 days after enactment, the Secretary of DOS to:
• require U.S. missions to conduct nonimmigrant visa interviews expeditiously,
consistent with national security and resource allocation requirements;
• set a goal of interviewing 80% of nonimmigrant visa applicants, worldwide,
within 3 weeks of receipt of application;
• explore expanding visa processing capacity in China and Brazil with the goal of
keeping interview wait times under 15 work days; and,
• report on needed resources to the appropriate congressional committees.315
It would allow DHS to expand registered traveler programs to include individuals employed by
international organizations that maintain a strong working relationship with the United States. It
would require that the individual traveler be sponsored by such an organization; complete
security screening requirements; not be citizen of a state sponsor of terrorism; and that the
individual’s passport be from a country with a Trusted Traveler Arrangement with DHS.316
S. 744 would direct the Secretary of DOS to develop and conduct a pilot program to use secure
remote video-conferencing as a method to conduct interviews for B (short-term tourist/business)
visas, unless the Secretary determines that it poses an undue security risk. The Secretary of DOS
would be required to submit a report on the efficacy, efficiency, and security of such a program
within 90 days of its termination.317 The bill would also require the collection of a $5 fee from
each nonimmigrant admitted on a B visa to be deposited in the CIR Trust Fund.318
S. 744 also would encourage Canadian tourism to the United States by authorizing the Secretary
of DHS to admit into the United States (on a B visa) qualifying Canadian citizens who are at least
55 years old, and their spouses, for a period not to exceed 240 days if the person maintains a
Canadian residence and owns a U.S. residence or has rented a U.S. accommodation for the
duration of such stay. Such visitors would not be authorized to work, and must not seek
PRWORA-described assistance/benefits.319
New Y Visa for Retirees
S. 744 would create a new Y visa for foreign nationals who are over 55 years old. To qualify,
aliens would be required to use at least $500,000 in cash to buy one or more residences, maintain
ownership of residential property valued at least $500,000 during the period, and reside in the
United States for more than 180 days a year in a residence worth at least $250,000. The bill
314 S. 744 §4505.
315 S. 744 §4508.
316 S. 744 §4507.
317 S. 744 §4410.
318 S. 744 §4509. Section 4509 indicates that B visa fees shall be deposited in the Comprehensive Immigration Reform
Trust Fund established under §6(a)(1) “of the Illegal Immigration Reform and Immigrant Responsibility Act”; this may
represent a drafting error.
319 S. 744 §4503.
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would allow the qualifying alien’s children and spouse to accompany him/her. Y visa holders
would be required to possess health insurance, could not be employed in the United States (except
for management of the residential property owned by the alien), and could not seek PRWORA-
described assistance/benefits. The Y visa would be renewable every three years, indefinitely.320
Visa Waiver Program
S. 744 would authorize the Secretary of DHS, in consultation with the Secretary of State, to
designate a country as a Visa Waiver Program (VWP) country if the overstay rate and/or refusal
rate was less than 3% in the previous fiscal year.321 The bill would allow the Secretary of DHS to
waive the refusal rate requirement if certain conditions were met.322 The bill would revise the
current probationary period and procedures for terminating a country’s participation in the VWP
if that country failed to comply with any of the program’s requirements. The bill would also
specify that Hong Kong could be designated a VWP country if it meets the program criteria.323
Other Nonimmigrant Visa Changes324
S. 744 would make a number of additional changes to nonimmigrant visas. It would waive the
INA requirement for the State Department to personally interview certain nonimmigrants (i.e., A,
E, G, H, I, L, N, O, P, R, and W visas) who are renewing their visas, allowing such visas instead
to be renewed within the United States under certain conditions.325 Nonimmigrants granted work
authorization under the A, E, G, H, I, J, L, O, P, Q, R, and TN visa categories whose status expired
but who filed a timely petition for an extension would be permitted to continue employment with
the same employer during adjudication of the application/petition.326
S. 744 would make a number of additional changes affecting certain high-skilled workers
entering the United States for purposes other than traditional employment. S. 744 would revise
INA Section 214(a) to permit certain employees of multinational companies to enter the United
States for up to 90 or 180 days to observe or oversee company operations, or to participate in
leadership training. Such nonimmigrants would be prohibited from receiving U.S.-sourced
compensation except for incidental expenses.327 The bill would expand the conditions under
which certain B visa nonimmigrant aliens would be eligible to enter the United States and receive
honoraria.328 It would also add new provisions for B-visa nonimmigrants to enter the United
States to participate in disaster relief operations, and would add provisions for B-visa
nonimmigrant aliens to perform maintenance or repairs for common carriers (airlines, ships,
320 S. 744 §4504.
321 For more on the Visa Waiver Program, see CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
322 The conditions are almost identical to current law regarding the nonimmigrant refusal rate waiver.
323 Although Hong Kong’s refusal rate is low enough to qualify for the VWP, Hong Kong is not a country, and only
countries currently can qualify to be part of the VWP.
324 CRS Legislative Attorney Margaret Mikyung Lee, and CRS Specialist in Immigration Policy Alison Siskin
contributed to this section of the report.
325 S. 744 §4103.
326 S. 744 §4405.
327 S. 744 §4603.
328 S. 744 §4604.
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railways) on equipment manufactured outside the United States.329 S. 744 would also make aliens
who are providing services aboard a fishing vessel having a home port or operating base in the
United States, who is landing in Hawaii and departing on the same vessel eligible for a D visa.330
Student Visas
For foreign students admitted on F visas who are seeking bachelors or graduate degrees, S. 744
would permit such aliens to have dual intent.331 The bill also would change accreditation
requirements for schools accepting F students and for flight schools accepting foreign students. In
addition, the bill would remove the 12-month limit for students on F visas who attend public
secondary schools, and charge a $100 fee on all nonimmigrants admitted on F-1 visas.332
The bill would also modify the U.S. Immigration and Customs Enforcement’s (ICE’s) Student
and Exchange Visitor Program (SEVP), which is responsible for administering the Student and
Exchange Visitor Information System (SEVIS). SEVIS maintains information on schools that can
accept foreign students, exchange programs, and on international students and exchange visitors
in the United States on F, J, and M visas. SEVP also certifies schools to accept foreign students.
S. 744 would require DHS to implement a real-time transmission of data from SEVIS to CBP
databases. This interoperability would have to be completed within 120 days of enactment or the
Secretary would be required to suspend the issuance of foreign student (F and M) visas.333 The
bill would also require accrediting agencies or associations to notify DHS about the denial,
withdrawal, suspension, or termination of accreditation so that the school could be immediately
withdrawn from SEVP and prohibited from accessing SEVIS and enrolling foreign students.
Within 180 days of enactment, DHS would be required to implement GAO’s recommendations
regarding SEVP and SEVIS, and report to Congress on the risk assessment strategy to prevent
malfeasance in the student visa issuance system. Within two years after enactment, DHS would
be required to deploy both phases of the second generation SEVIS system.334
The bill would also increase the criminal penalties for fraud and misuse of visa documents if the
offense was committed by an owner, official, or employee of a SEVP certified school, and would
allow the Secretary of DHS to impose fines on institutions that failed to comply with reporting
requirements. The bill would also allow the Secretary of DHS to immediately withdraw an
institution’s SEVP certification if there is a reasonable suspicion that the owner or school official
has committed fraud relating to any aspect of the SEVP. Any person convicted of such fraud
would be ineligible to hold a position of authority at any institution that accepts F or M foreign
students. The bill would also prohibit individuals from serving as a designated school official335
329 S. 744 §4606.The bill would also make changes regarding the requirements for interviewing for B visas; see in this
report “Tourism-Related Provisions.”
330 Currently only similarly situated aliens landing in Guam and the Commonwealth of the Northern Mariana Islands
are eligible for D (crewman) visas. S. 744 §4414.
331 S. 744 §4401.
332 S. 744 §4406, §4409.
333 S. 744 §4401(c). This section appears to direct the DHS Secretary to suspend issuing such visas, though it is the
Secretary of State that actually issues such visas; this may represent a drafting error.
334 S. 744 §§4910-4913.
335 Under the SEVP, schools must have at least one “designated school official” who is responsible for maintaining the
SEVIS records and reporting on the nonimmigrant foreign students at the school.
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or being granted access to SEVIS unless the individual is a U.S. national or an LPR, and has
undergone a background check during the past three years.336
In addition, S. 744 would impose a $500 fee on designated program sponsors for each
nonimmigrant entering on a J visa as part of a summer work/travel exchange; the fee would be
deposited in the CIR Trust Fund and could not be charged to the nonimmigrant. The bill would
also make aliens coming to the United States to perform specialized work that requires
proficiency of languages spoken in countries with less than 5,000 LPR admissions in the previous
year eligible for a J visa.337
Humanitarian Provisions338
Refugee and Asylum Provisions
The United States has long held to the principle that it will not return a foreign national to a
country where his life or freedom would be threatened. This principle is embodied in several
provisions of the INA, most notably in provisions defining refugees and asylees. Refugees are
aliens displaced abroad who are unable or unwilling to return to their country of origin on account
of their race, religion, nationality, membership in a particular social group, or political opinion;
or, under certain conditions, who are in their home country and have a well-founded fear of
persecution on one of these grounds.339 Refugees are processed and admitted to the United States
from abroad.340
Foreign nationals also may claim asylum in the United States if they demonstrate a well-founded
fear that if returned home, they will be persecuted based upon one of these same five
characteristics.341 Foreign nationals arriving or present in the United States may apply for asylum
affirmatively with USCIS after arrival into the country, or they may seek asylum defensively
before an immigration judge during removal proceedings.342
S. 744 would increase the flexibility of these asylum and refugee provisions several ways,
potentially rolling back some of the changes made by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (P.L. 104-208). S. 744 would repeal a current provision
that requires asylum claims to be filed within one year of an alien’s arrival in the United States,
and would provide for the reconsideration of certain asylum claims that were denied because of
the failure to file within one year.343 The bill also would authorize the spouse or child of a refugee
336 S. 744 §4903, §§4906-4908.
337 S. 744 §§4407, 4408.
338 CRS Legislative Attorney Margaret Mikyung Lee and CRS Specialist in Immigration Policy Alison Siskin
contributed to this section of the report.
339 INA §101(a)(42).
340 INA §207; 8 U.S.C. §1157. For a fuller discussion, see CRS Report RL31269, Refugee Admissions and Resettlement
Policy, by Andorra Bruno.
341 INA §208; 8 U.S.C. §1158.
342 For a fuller discussion, see CRS Report R41753, Asylum and “Credible Fear” Issues in U.S. Immigration Policy ,
by Ruth Ellen Wasem.
343 S. 744 §3401, striking INA §208(a)(2)(B).
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or asylee who is admitted to the United States to bring his or her own accompanying child, also
under a refugee or asylum visa.344 With respect to aliens found to have a credible fear of
persecution based on an interview with a USCIS asylum officer during expedited removal, the
asylum officer would be authorized to grant asylum under certain circumstances, rather than
referring the alien to an immigration judge.345 And the bill would require that DHS issue work
authorization to asylum applicants after 180 days.346
A new category of “stateless persons” would be defined, and such persons would be permitted to
apply for conditional lawful status under certain conditions, and to adjust to LPR status after one
year, as special immigrants under the employment-based preference category.347 S. 744 would
increase the number of U visas available annually from 10,000 to 18,000 (also see “Worker
Protections”), with no more than 3,000 going to aliens who are victims of covered violations.348
In addition, the President, based on a recommendation by DOS, would be authorized to designate
certain high-need groups as refugees, facilitating their admission as refugees.349 S. 744 would
establish requirements for overseas refugee adjudications, including the right to legal counsel (not
at government expense), a written record of the decision, and administrative review of a denial.350
S. 744 also includes provisions that would tighten refugee and asylum laws and would be
especially aimed at national security concerns. Pursuant to Section 3411, an alien granted refugee
or asylum status who returns to the alien’s country of nationality or habitual residence would have
his or her status terminated unless the DHS Secretary determines that the alien returned for good
cause, or unless the alien is eligible to adjust to LPR status pursuant to the Cuban Adjustment Act
of 1966 (P.L. 89-732). And Section 3409 would impose additional law enforcement and national
security checks during the refugee and asylum application process.
Section 3403 would terminate preferential treatment for certain Amerasian immigrants that was
established by Section 584 of the Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1988.351 Section 3410 would authorize 5,000 immigrant visas during the
three-year period beginning on October 1, 2013, for certain qualified displaced Tibetans who
have been residing in Nepal or India continuously since before the date of enactment of S. 744.
Anti-Trafficking Provisions
S. 744 also includes special provisions to protect children who are trafficking victims. DOL
would be required to establish specialized training for personnel who come into contact with such
children, and to ensure under most circumstances that child trafficking victims are placed under
care of the Office of Refugee Resettlement within 72 hours.352 S. 744 would require that all
procedures and decisions concerning unaccompanied immigrant children pursuant to the INA
344 S. 744 §3402.
345 S. 744 §3404.
346 S. 744 §3412.
347 S. 744 §3405.
348 S. 744 §3406.
349 S. 744 §3403.
350 S. 744 §3408.
351 8 U.S.C. §1101 note.
352 S. 744 §3611.
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would make the best interests of the child a primary consideration.353 S. 744 would provide work
authorization for aliens whose applications for T or U status354 is approved or pending for 180
days, whichever occurs first.355 There would also be new reporting requirements for human
trafficking offenses in the Federal Bureau of Investigation’s (FBI’s) Uniform Crime Reports, and
human trafficking would be a part 1 crime for calculating funding under the Edward Byrne
Memorial Justice Assistance Grant Program.356
S. 744 contains provisions to address the issue of protecting unaccompanied alien children from
becoming victims of human trafficking. The bill would transfer from HHS to DOJ the
responsibility for ensuring, to the greatest extent possible, that unaccompanied alien children in
DHS custody have counsel to represent them and access to child advocates.357 It would require
the Secretary of DHS, in consultation with child welfare experts, to create mandatory training for
CBP personnel and other personnel who come in contact with unaccompanied alien children. The
bill would also mandate that all unaccompanied alien children who will undergo any immigration
proceedings before EOIR are transferred to HHS custody within 72 hours after apprehension. In
addition, the bill would direct HHS to hire child welfare professionals to provide assistance in no
fewer than seven of the CBP offices or stations with the largest number of unaccompanied
minors. Such professionals would have to have trauma-centered and developmentally appropriate
interviewing expertise and, among other duties, would be responsible for screening
unaccompanied alien children to ensure that they are not trafficking victims, and ensuring that the
children are appropriately cared for while in CBP custody. S. 744 would require HHS to submit to
the Secretary of DHS a final determination on family relationships, and the Secretary of DHS
shall consider such adult relatives for community-based support alternatives to detention (also see
“Immigrant Detention”). The bill would also direct the Administrator of the U.S. Agency for
International Development (USAID), in conjunction with the Secretaries of DHS, DOJ, and HHS
and non-governmental organizations to create a multi-year program to implement best practices
to ensure the safe repatriation of unaccompanied alien children. The bill would specify that in all
procedures and decisions concerning unaccompanied immigrant child the best interests of the
child shall be a primary consideration.358
Status for Certain Battered Spouses and Children
S. 744 would grant legal status to derivative spouses or children of nonimmigrants who (1)
accompany or follow to join principal nonimmigrants or aliens admitted under the blue card
status provisions of Section 2211 of this act and (2) were subjected to battery or extreme cruelty
by such principal nonimmigrants. The status would be granted under the same provisions as the
principal alien, for the longer of either three years or the same admission period of the principal
alien. DHS would grant employment authorization to the abused derivative alien and could renew
his or her grant or extension of status. DHS could adjust the status of the abused derivative alien
to LPR status if (1) he or she either meets the admissibility criteria under INA Section 212(a) or
353 S. 744 §3612.
354 T status is for trafficking victims and U status is for crime victims.
355 S. 744 §3407.
356 S. 744 §1119. For more on the Edward Byrne Memorial Justice Assistance Grant Program, see CRS Report
RS22416, Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by Nathan James.
357 These programs were created in P.L. 110-457, §235(c)(5)-(6). S. 744 §3507.
358 S. 744 §§3611-3613.
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DHS can justify his or her presence on humanitarian or public interest grounds or to ensure
family unity; and (2) the status under which the principal nonimmigrant was admitted to the
United States would have potentially allowed for eventual adjustment of status. Termination of
the relationship with the principal alien would not alter status granted under this provision if
abuse was the central reason for such termination.359
Author Contact Information
Marc R. Rosenblum
Ruth Ellen Wasem
Specialist in Immigration Policy
Specialist in Immigration Policy
mrosenblum@crs.loc.gov, 7-7360
rwasem@crs.loc.gov, 7-7342
Key Policy Staff
Area of Expertise
Name
Phone
E-mail
Employment eligibility verification,
Andorra Bruno, Specialist
7-7865 abruno@crs.loc.gov
worksite enforcement, legalization,
in Immigration Policy
DREAM Act, guest workers
Border security, CIR triggers,
Michael Garcia, Legislative
7-3873 mgarcia@crs.loc.gov
inadmissibility, interior enforcement,
Attorney
detention and removal
Legal immigration (family),
William Kandel, Analyst in
7-4703 wkandel@crs.loc.gov
naturalization, immigrant integration,
Immigration Policy
international adoptions, immigration
fiscal impacts, immigration demography
Legal immigration (immigrants and
Margaret Lee, Legislative
7-2579 mmlee@crs.loc.gov
nonimmigrants), legalization,
Attorney
naturalization and citizenship, EOIR
Legalization, worksite enforcement,
Kate Manuel, Legislative
7-4477 kmanuel@crs.loc.gov
noncitizen eligibility for public benefits,
Attorney
interior enforcement, detention and
removal
Guest-worker wage requirements;
Gerald Mayer, Analyst in
7-7815 gmayer@crs.loc.gov
effects of immigration on the U.S.
Labor Policy
labor market
Border security, entry-exit system,
Marc Rosenblum, Specialist 7-7360 mrosenblum@crs.loc.gov
interior enforcement, CIR triggers and
in Immigration Policy
funding, employment eligibility
verification
Foreign labor contractors
Jon Shimabukuro,
7-7990 jshimabukuro@crs.loc.gov
Legislative Attorney
359 S. 744 §4413.
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Area of Expertise
Name
Phone
E-mail
Interior enforcement, detention and
Alison Siskin, Specialist in
7-0260 asiskin@crs.loc.gov
removal, Visa Waiver Program,
Immigration Policy
investors, nonimmigrant visas,
noncitizen eligibility for federal benefits
Legal immigration (immigrants and
Ruth Ellen Wasem,
7-7342 rwasem@crs.loc.gov
nonimmigrant), inadmissibility,
Specialist in Immigration
document integrity, visa policy,
Policy
noncitizen eligibility for federal benefits
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