Immigration Legislation and Issues in the 116th Congress

June 12, 2020 – July 27, 2020 R46419

Immigration Legislation and Issues in the 116th July 27, 2020
Congress
Andorra Bruno,
The House and the Senate have considered measures on a variety of immigration issues in the
Coordinator
116th Congress. These issues include border security, immigration enforcement, legalization of
Specialist in Immigration
unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions.
Policy

Several immigration measures were enacted into law. Among them are the Northern Mariana
William A. Kandel
Islands Long-Term Legal Residents Relief Act (P.L. 116-24) and the Citizenship for Children of
Analyst in Immigration
Military Members and Civil Servants Act (P.L. 116-133).
Policy

The 116th Congress also enacted immigration provisions as part of larger defense and
appropriations bills. The National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92)
Abigail F. Kolker
includes provisions related to the Afghan special immigrant visa (SIV) program, interior
Analyst in Immigration
enforcement, Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status
Policy

(TPS), naturalization, and Liberian Refugee Immigration Fairness. The FY2019 Emergency
Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border
Jill H. Wilson
Act (P.L. 116-26) addresses border security and unaccompanied children. The FY2019
Analyst in Immigration
Consolidated Appropriations Act (P.L. 116-6) extended four immigration programs through the
Policy
end of FY2019: the EB-5 immigrant investor Regional Center Program, the E-Verify

employment eligibility verification system, the Conrad State program for foreign medical
graduates, and the special immigrant religious worker program. The FY2020 Further

Consolidated Appropriations Act (P.L. 116-94) extends these same four programs through the
end of FY2020. P.L. 116-6 and P.L. 116-94 also address H-2B visas and the Department of State’s Bureau of Population,
Refugees, and Migration and refugee admissions. P.L. 116-6 additionally includes language on immigration enforcement and
the temporary Afghan SIV program.
Multiple other immigration-related bills have seen committee or floor action, but have not passed both chambers. Many of
these bills address border security and the Department of Homeland Security’s U.S. Customs and Border Protection (CBP).
The House has passed several related measures, including the Homeland Security Improvement Act (H.R. 2203), the
Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), the Counter Terrorist
Network Act (H.R. 3526), and the Securing America’s Ports Act (H.R. 5273). Border security- and CBP-related bills have
been reported by the House Homeland Security Committee (H.R. 1232, H.R. 1598, H.R. 1639), the House Judiciary
Committee (H.R. 5581), the House Appropriations Committee (H.R. 7669), and the Senate Homeland Security and
Governmental Affairs Committee (S. 731, S. 2750).
The House and the Senate have also acted on bills addressing other immigration issues. The Hou se has passed the American
Dream and Promise Act of 2019 (H.R. 6) on childhood arrivals and individuals with TPS; the Farm Workforce
Modernization Act of 2019 (H.R. 5038) on foreign agricultural workers ; the Fairness for High-Skilled Immigrants Act (H.R.
1044) on permanent employment-based immigration; and the Heroes Act (H.R. 6800) on COVID-19-related immigration
issues, among other measures. The Senate Judiciary Committee has reported a bill (S. 1494) with provisions on
unaccompanied children, asylum, refugee admissions, and other topics.
This report discusses these and other immigration-related issues that have seen legislative action in the 116th Congress.
Department of Homeland Security appropriations are addressed in CRS Report R46113, Department of Homeland Security
Appropriations: FY2020, and, for the most part, are not covered here.

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Immigration Legislation and Issues in the 116th Congress

Introduction
The 116th Congress has seen considerable committee and floor action on immigration legislation,
particularly in the House. The House and/or the Senate have acted on bil s addressing a range of
immigration issue areas, including border security, immigration enforcement, legalization of
unauthorized immigrants, temporary and permanent immigration, and humanitarian admissions.
Some of these bil s include amendments to the Immigration and Nationality Act (INA), the basis
of U.S. immigration law.1
Several immigration provisions were enacted as part of larger appropriations and defense
authorization bil s. These provisions variously address the H-2B visa, U.S. refugee admissions,
Afghan special immigrant visas, and the immigration status of Liberians who are long-time U.S.
residents, among other issues. Through FY2019 and FY2020 consolidated appropriations
measures, the 116th Congress extended the EB-5 Regional Center Program for immigrant
investors, the E-Verify employment eligibility verification system, and two other immigration
programs, al of which are now authorized through September 30, 2020.
The 116th Congress also enacted stand-alone measures concerning immigration in the
Commonwealth of the Northern Mariana Islands and citizenship for children born abroad to
parents who are U.S. military servicemembers or U.S. government employees. This report
discusses these and other immigration-related measures that have received legislative action in
the 116th Congress.2
Border Security
The U.S. Department of Homeland Security (DHS), which was established in 2003 in accordance
with the Homeland Security Act of 2002 (HSA; P.L. 107-296), is charged with protecting U.S.
borders from weapons of mass destruction, terrorists, smugglers, and unauthorized aliens,3 among
other responsibilities. Operational y, border security includes controlling the 328 official air, land,
and sea ports of entry (POEs) through which legitimate travelers and commerce enter the country
and patrolling the nation’s land and maritime borders to prevent unlawful entries of people and
goods.4
DHS’s U.S. Customs and Border Protection (CBP) is responsible for protecting U.S. international
land borders and coastal shoreline. At POEs, CBP’s Office of Field Operations (OFO) is charged
with conducting immigration, customs, and agricultural inspections of travelers seeking
admission to the United States. Between POEs, CBP’s U.S. Border Patrol (USBP) is charged with
enforcing immigration law and other federal laws along the border and preventing unlawful
entries into the United States.

1 T he INA is Act of June 27, 1952, ch. 477, 66 Stat. 163. It is codified, as amended, at 8 U.S.C. §1101, et seq.
2 For the most part, Department of Homeland Security appropriations are not covered in this report. For that
information, see CRS Report R46113, Departm ent of Hom eland Security Appropriations: FY2020 .
3 An alien, as defined in the INA, is any person who is not a citizen or national of the United States (INA §101(a)(3), 8
U.S.C. §1101(a)(3)). Unauthorized alien, as used in this report, refers to a foreign national who does not have a lawful
immigration status. T he term includes both a foreign national who enters the United States without inspection and a
foreign national who enters lawfully but then overstays or otherwise violates the terms of his or her visa or admission.
4 For a discussion of laws governing the admission and exclusion of aliens at the border, see CRS Legal Sidebar
LSB10150, Im m igration Laws Regulating the Adm ission and Exclu sion of Aliens at the Border.
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Immigration Legislation and Issues in the 116th Congress

According to CBP data, annual apprehensions of unauthorized migrants between POEs at the
U.S. Southwest border reached a 45-year low of about 300,000 in FY2017, but then more than
doubled over the next two years. In FY2019, Southwest border apprehensions totaled 851,508,
the highest level since FY2007.5 For the first nine months of FY2020, monthly apprehensions at
the southern border have been considerably lower than FY2019 levels.6
During the FY2017-FY2019 period, as apprehensions at the Southwest border were general y
increasing, there was a notable rise in the number of apprehended migrants from the Northern
Triangle countries of El Salvador, Guatemala, and Honduras. This period also saw changes in the
demographic composition of migrant flows at the southern border, with persons in family units
accounting for more than half of FY2019 apprehensions. While single adults historical y had
represented a large majority of migrant apprehensions at the southern border, in FY2019 persons
in family units and unaccompanied alien children together accounted for 65% of those
apprehensions.7
The increased number of apprehended migrants in FY2019, combined with the changing
characteristics of those migrants, posed considerable chal enges to the federal agencies charged
with apprehending and processing unauthorized aliens. In Senate testimony in March 2019, the
CBP Commissioner stated that the numbers and types of arriving migrants constituted a national
security and humanitarian crisis.8 As reported in a news article at the time, “CBP has warned for
months that it isn’t able to house and process the current population coming into the [United
States], and that it has nowhere to put people between when they turn themselves in to Border
Patrol agents and when they are released.”9
As noted, Southwest border apprehensions in FY2020, as reported in available data to date, are
wel below FY2019 levels. Among the reasons for this are immigration-related actions taken by
the U.S. government in response to the Coronavirus Disease 2019 (COVID-19) pandemic.10
The 116th Congress has considered a number of border security-related bil s that address
treatment of arriving migrants as wel as border security resources and operations. In July 2019, it
enacted the FY2019 Emergency Supplemental Appropriations for Humanitarian Assistance and
Security at the Southern Border Act (P.L. 116-26) in response to the large numbers of arriving
migrants, particularly families and children. The act provides funding for DHS and the
Department of Health and Human Services (HHS), among other federal departments. It specifies
in the DHS title that the appropriated funds can only be used for the delineated purposes.11

5 See CRS Report R46012, Immigration: Recent Apprehension Trends at the U.S. Southwest Border.
6 According to CBP data, Southwest border apprehensions during the first nine months of FY2020 (through June 30,
2020) totaled 259,147. T he comparable total for FY2019 was 688,339. CBP data for FY2017 -FY2020 are available at
https://www.cbp.gov/newsroom/stats/sw-border-migration.
7 As reported in CBP data, persons in family units include children under age 18 and accompanying parents/guardians.
For additional information, see CRS Report R46012, Im m igration: Recent Apprehension Trends at the U.S. Southwest
Border.
8 T estimony of CBP Commissioner Kevin K. McAleenan, prepared for U.S. Congress, Senate Committee on the
Judiciary, Oversight of Custom s and Border Protection’s Response to the Sm uggling of Person s at the Southern
Border, March 6, 2019, https://www.judiciary.senate.gov/imo/media/doc/McAleenan%20T estimony.pdf.
9 Dara Lind, “ T he border is in crisis. Here’s how it got this bad,” Vox, updated June 5, 2019.
10 For a discussion of these actions, see CRS Insight IN11308, COVID-19: Restrictions on Travelers at U.S. Land
Borders; and CRS Legal Sidebar LSB10439, Entry Restrictions at the Northern and Southern Borders in Response to
COVID-19.
11 For further information on the DHS funding in this act, see CRS Report R46113, Department of Homeland Security
Appropriations: FY2020.
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Treatment of Arriving Migrants
P.L. 116-26 provides additional operational and support funding to CBP, with the majority
al otted for migrant care and processing facilities. The act stipulates, however, that none of that
funding wil be made available until CBP establishes policies and training programs “to ensure
that such facilities adhere to the National Standards on Transport, Escort, Detention, and
Search.”12
Multiple bil s passed by the House seek to build on the provisions in P.L. 116-26 to further
address standards of care for arriving migrants. One set of measures would require CBP to meet
specified needs of migrants in its custody. The Short-Term Detention Standards Act (H.R. 3670)
would amend a provision in the HSA that directs CBP to “make every effort to ensure that
adequate access to food and water is provided to” individuals it apprehends and detains.13 H.R.
3670 would revise this provision to require CBP “to make every effort to ensure the provision to
an individual apprehended by [CBP] of appropriate temporary shelter with access to bathroom
and shower facilities, water, appropriate nutrition, hygiene, personal grooming items, and
sanitation needs.” Among its other provisions, the bil would task the DHS Inspector General and
the U.S. Comptroller General with conducting regular audits and inspections of CBP intake and
processing procedures for apprehended individuals. Another House-passed bil , the Humanitarian
Standards for Individuals in Customs and Border Protection Custody Act (H.R. 3239), would
require CBP to ensure that detainees have access to water, sanitation, and hygiene; food and
nutrition; and shelter, as specified.
Medical screening and medical care of arriving migrants is another focus of House legislation.
The U.S. Border Patrol Medical Screening Standards Act (H.R. 3525), as passed by the House,
would direct DHS to conduct research on the provision of comprehensive medical screening to
individuals (particularly vulnerable populations) interdicted by CBP between POEs and issue
recommendations for corrective actions. The bil would further require DHS to implement an
electronic health record system for individuals in its custody. H.R. 3239, in addition to the
provisions discussed previously, would direct CBP, in consultation with HHS and other experts,
to develop guidelines and protocols for the provision of health screenings and appropriate
medical care to individuals in CBP custody.
Other House-passed bil s address treatment of migrants more broadly. The Homeland Security
Improvement Act (H.R. 2203), as passed by the House, would establish a new position within
DHS for an Ombudsman for Border and Immigration Enforcement Related Concerns. The
ombudsman would be responsible for establishing an accessible and confidential process to assist
individuals in resolving complaints concerning CBP or DHS’s U.S. Immigration and Customs
Enforcement (ICE), and for making recommendations to the DHS Secretary to address chronic
issues identified through the complaint process. (For further discussion of ICE-related legislation,
see the “Interior Enforcement” section.) With respect to CBP, the ombudsman also would be
charged with establishing a Border Oversight panel to evaluate and make recommendations on
DHS border enforcement policies, strategies, and programs. H.R. 2203 would further direct the
ombudsman to appoint a Border Community Liaison in each border patrol sector, with

12 See U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention, and Search, October
2015, https://www.cbp.gov/sites/default/files/assets/documents/2020-Feb/cbp-teds-policy-october2015.pdf.
13 HSA §411(m), 6 U.S.C. §211(m).
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responsibilities including consulting with border communities on the development of CBP and
ICE policies, directives, and programs.
Border Security Resources
The United States has substantial y increased border enforcement resources over the last three
decades, as evidenced across a variety of indicators. Particularly since 2001, such increases have
included fencing and infrastructure, personnel, and technology.14
In recent years, barriers at the Southwest border have been the main focus of discussion and
debate about border resources. President Trump’s declaration of a national emergency in
February 2019 to secure funding for the construction of physical barriers along the U.S.-Mexico
border was met by unsuccessful congressional efforts to terminate that declaration.15 The 116th
Congress passed two termination measures—H.J.Res. 46 and S.J.Res. 54—but both were vetoed
by the President, and subsequent veto override votes fel short.
Another border barrier-related bil (H.R. 1232) has been reported by the House Homeland
Security Committee. H.R. 1232 would amend Section 102 of the Il egal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996, as amended (Div. C of P.L. 104-208, 8 U.S.C.
§1103 note). Section 102 would direct DHS to “instal additional physical barriers and roads … in
the vicinity of the United States border to deter il egal crossings in areas of high il egal entry” and
would authorize DHS to waive legal requirements if necessary to ensure such instal ation.16 H.R.
1232 would amend IIRIRA to rescind that waiver authority.
Several provisions in the FY2021 DHS Appropriations Act (H.R. 7669), as reported by the House
Appropriations Committee, also address border barriers. These provisions (§§210-212) would
prohibit the use of federal funds for the construction of barriers, as specified.
Border security personnel is the subject of multiple bil s that have received action. P.L. 116-26
includes a provision (§304) on CBP staffing at the U.S.-Canadian border. It requires DHS to
report on the number of CBP officers “assigned to northern border land ports of entry and
temporarily assigned to the ongoing humanitarian crisis.”
The House and the Senate Homeland Security committees have also advanced measures on
border personnel. The House Homeland Security Committee has reported the CBP Workload
Staffing Model Act (H.R. 1639), which would amend the HSA to require CBP to develop and
implement a workload staffing model for USBP and Air and Marine Operations.17 The committee
has also reported the U.S. Customs and Border Protection Rural and Remote Hiring and
Retention Strategy Act of 2019 (H.R. 1598). This bil would direct DHS to issue a strategy to
improve the hiring and retention of CBP personnel in rural or remote areas.

14 See CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry.
15 U.S. President (T rump), Proclamation 9844 of February 15, 2019, “Declaring a National Emergency Concerning the
Southern Border of the United Stat es,” 84 Federal Register 4949, February 20, 2019. Also see CRS Legal Sidebar
LSB10252, Declarations under the National Em ergencies Act, Part 1: Declarations Currently in Effect ; and CRS
Legal Sidebar LSB10267, Definition of National Em ergency under the National Em ergencies Act.
16 See CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements.
17 Air and Marine Operations (AMO), a component of CBP, describes its role as follows: “AMO interdicts unlawful
people and cargo approaching U.S. borders, investigates criminal networks and provides domain awareness in the air
and maritime environments, and responds to contingencies and national taskings.” U.S. Customs and Border
Protection, “ Air and Marine Operations,” fact sheet, https://www.cbp.gov/sites/default/files/assets/documents/2019-
Apr/FS_2019_AMO_Fact%20Sheet_FINAL_508%20compliant_0.pdf .
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The Senate Homeland Security and Governmental Affairs Committee has acted on several CBP
staffing-related bil s. The Anti-Border Corruption Improvement Act (S. 731), as reported by the
committee, would amend the CBP Commissioner’s existing discretionary authority to waive the
polygraph examination requirement for certain applicants for CBP law enforcement positions.
The Securing America’s Ports of Entry Act of 2019 (S. 1004), as ordered to be reported by the
committee, would direct the CBP Commissioner to hire not fewer than 600 new OFO officers
annual y, as specified, and an unnamed number of support staff. The Securing Americ a’s Borders
Act of 2019 (S. 2162), as ordered to be reported, would require the CBP Commissioner to hire
not fewer than 600 new USBP agents annual y, as specified, and an unnamed number of support
staff.
On the subject of border technology, the House and the Senate have acted on the Securing
America’s Ports Act (H.R. 5273). As passed by the House, the bil would require DHS to submit a
plan to Congress to expeditiously scan al commercial and passenger vehicles entering the United
States at land POEs using large-scale non-intrusive inspection systems or similar technology. The
Senate Homeland Security and Governmental Affairs Committee has ordered H.R. 5273 to be
reported in amended form. Among the changes approved by the Senate committee to the House-
passed version of the bil , the required plan for universal scanning would need to cover freight
rail traffic entering the United States at rail-border crossings along the border in addition to
commercial and passenger vehicles entering the United States.
In addition to the above measures, the Operation Stonegarden Authorization Act (S. 2750), as
reported by the Senate Homeland Security and Governmental Affairs Committee, would codify
an existing DHS program administered by FEMA that awards grants to state and tribal law
enforcement agencies to improve border security. S. 2750 proposes to add a new section to the
HSA that would authorize the Operation Stonegarden grant program, describe law enforcement
agency eligibility, and set forth permitted uses of grant funds, including for equipment and
personnel. The bil would also provide for the collection of financial information on grant awards
and for administrative oversight of the program.
Border Security Operations
A third category of border security-related bil s receiving action in the 116th Congress concerns
border security operations. The Counter Terrorist Network Act (H.R. 3526), as passed by the
House, would amend the HSA provisions establishing the OFO National Targeting Center (NTC),
an entity that collects and analyzes traveler and cargo information in advance of U.S. arrival to
identify security risks. H.R. 3526 would task the NTC with an additional duty—to collaborate
with appropriate agencies on efforts such as operations to disrupt and dismantle networks that
pose terrorist threats. The Operation Stonegarden program, the subject of S. 2750 (discussed
above), also seeks to promote cooperation among different agencies to enhance border security.
Another bil , the DHS Il icit Cross-Border Tunnel Defense Act (H.R. 5828), as ordered to be
reported by the House Homeland Security Committee, would direct CBP to develop a strategic
plan to counter il icit cross-border tunnel operations.
Interior Enforcement
ICE has primary responsibility for enforcing federal immigration law within the United States,
otherwise known as interior enforcement. It identifies, apprehends, detains (as necessary), and
removes unauthorized aliens from the country. Among ICE’s removal-related responsibilities, its
attorneys represent the U.S. government in removal proceedings before the U.S. Department of
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Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR).18 EOIR immigration judges
preside over these hearings.
Legislation concerning interior enforcement has received action during the 116th Congress. A
provision (§220) in H.R. 7669, as reported by the House Appropriations Committee, would
prohibit the use of ICE funding for civil immigration enforcement activities, including arrests,
detentions, and removals, unless certain conditions were met. Other provisions in H.R. 7669
would prohibit the use of federal funds to detain, remove, or initiate removal proceedings against
certain individuals. These include individuals who provide information to facilitate the
sponsorship or family reunification of an unaccompanied alien child (§215), individuals who
meet the original criteria for Deferred Action for Childhood Arrivals (§411), and nationals of
countries designated for TPS as of January 1, 2017, who are eligible for this form of protection
(§411). Section 215 would also prohibit the use of federal funds to take enforcement actions
based on information disclosed in therapy sessions while an individual is in ORR custody.
(Unaccompanied alien children, Deferred Action for Childhood Arrivals, and Temporary
Protected Status are the subjects of separate sections in this report.)
Concerning ICE enforcement more general y, House-passed H.R. 2203 (as discussed in
“Treatment of Arriving Migrants” above) would establish a new DHS Ombudsman for Border
and Immigration Enforcement Related Concerns, whose tasks would include assisting individuals
in resolving complaints concerning ICE and making recommendations to address chronic issues.
ICE detention is a particular focus of some legislation seeing action. The FY2019 Consolidated
Appropriations Act (P.L. 116-6) contains a provision (Div. A, §226) requiring ICE to issue weekly
public reports with data on detained aliens and aliens enrolled in Alternative to Detention (ATD)
programs.19 H.R. 7669 (§217), as reported by the House Appropriations Committee, would
likewise require ICE to issue regular public reports containing specified detention-related data.
Section 219 of H.R. 7669 would prohibit DHS from using federal funds to detain a person for
more than 20 days unless ICE determined that he or she posed a threat to public safety or was a
flight risk.
H.R. 6800 (§191205), as passed by the House, would direct DHS to review the files of al
individuals in ICE custody to assess the need for their continued detention during the COVID-19-
related public health emergency.20 It would direct the department to prioritize individuals who are
not subject to mandatory detention for release (on recognizance21 or alternatives to detention),
unless they posed safety or security threats. It would further require DHS to ensure, during the
emergency, that al individuals in ICE custody had access to certain services and items, including

18 During a removal proceeding, an EOIR immigration judge decides whether the individual is removable from the
country and, if so, whether he or she qualifies for protection or relief from removal. For additional information, see
CRS In Focus IF11536, Form al Rem oval Proceedings: An Introduction .
19 T hese data are available at U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement,
Detention Management (under Detention Statistics tab), https://www.ice.gov/detention-management . For information
on AT D programs, see CRS Report R45804, Im m igration: Alternatives to Detention (ATD) Program s.
20 T he HHS Secretary issued a determination at the end of January 2020 that there had been a public health emergency
nationwide since January 27, 2020. U.S. Department of Health and Human Services, Determ ination that a Public
Health Em ergency Exists, January 31, 2020, https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-
nCoV.aspx. T his determination has since been renewed. See U.S. Department of Health a nd Human Services, Renewal
of Determ ination That A Public Health Em ergency Exists, July 23, 2020, https://www.phe.gov/emergency/news/
healthactions/phe/Pages/covid19-23June2020.aspx.
21 An order of recognizance releases an individual without requiring the payment of a bond, subject to specified
conditions.
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free, unmonitored telephone cal s to contact attorneys, and that nonprofit organizations offering
legal orientation or related programming had access to individuals in ICE custody.
Several other bil s that have received action include language related to removal proceedings. The
National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92) includes a provision
(§570B(b)) that would require an ICE immigration officer to consider an individual’s military
service in determining whether to take certain removal-related actions, such as commencing
removal proceedings or executing a final order of removal. The Secure and Protect Act of 2019
(S. 1494), as reported by the Senate Judiciary Committee, would increase the number of
immigration judges by not fewer than 500 and increase the number of ICE attorneys and staff
correspondingly.
Unaccompanied Alien Children
Unaccompanied alien children (UAC, unaccompanied children) are defined in statute as children
who lack lawful immigration status in the United States, are under age 18, and are without a
parent or legal guardian in the United States or without a parent or legal guardian in the United
States who is available to provide care and physical custody.22 In FY2019, the number of UAC
and family units23 arriving at the Southwest border reached record high levels, posing
considerable chal enges to U.S. federal agencies charged with apprehending and processing
unauthorized migrants.
P.L. 116-26 appropriates supplemental funding to various agencies for UAC-related activities. It
appropriates nearly $2.9 bil ion to HHS, mostly to support its UAC program. HHS’s Office of
Refugee Resettlement (ORR) is responsible for the care and placement of unaccompanied
children. The act requires HHS to use at least $866 mil ion of the appropriated amount for
providing UAC care in state-licensed shelters, and to reverse $385 mil ion in earlier fund
reprogramming.24 It outlines licensing and staffing requirements for unlicensed temporary
facilities that are open for more than six months, and lists who should not be housed in unlicensed
facilities.25 P.L. 116-26 provides a total of $145 mil ion to branches of the U.S. military “to
respond to the significant rise in unaccompanied minors and family unit aliens at the southwest
border.”26 During past migrant surges, the military assisted by facilitating border enforcement-
related activities and temporary migrant housing, often by leasing temporary housing facilities to
ORR. P.L. 116-26 also appropriates $36 mil ion to ICE for the transportation of UAC from ICE
custody to ORR custody.

22 6 U.S.C. §279(g)(2). For a discussion of unaccompanied alien children and related legislation, see CRS Report
R43599, Unaccom panied Alien Children: An Overview.
23 A family unit in this section refers to at least one parent/guardian and at least one child. A child accompanied by any
other related adult (e.g., uncle, older sibling, grandparent) is not considered part of a family unit.
24 HHS had reprogrammed or transferred $385 million from other HHS programs to HHS’s Office of Refugee
Resettlement, reportedly to cover the additional expenses stemming from the T rump Administration’s “zer o tolerance
policy” on border enforcement. See U.S. Congress, House Committee on Appropriations, Departments of Labor,
Health and Hum an Services, and Education, and Related Agencies Appropriations Bill, 2020 , report to accompany
H.R. 2740, 116th Cong., 1st sess., H.Rept. 116-62 (Washington, DC: GPO, 2019), p. 11.
25 T hese include children not expected to be placed with sponsors within 30 days, children under age 13, non -English
or Spanish speakers, special needs children, pregnant or parenting teenagers, or anyone who would experience a
diminution of legal services as a result of a transfer into such a facility.
26 P.L. 116-26, T itle II. T he bill does not specify how these funds are to be allocated among activities related to UAC
versus other migrants.
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S. 1494, as reported by the Senate Judiciary Committee, would significantly change processing of
unaccompanied children who are apprehended at the U.S. border or a POE and found to be
inadmissible27 to the United States. Current law requires that DHS screen apprehended Mexican
and Canadian unaccompanied children to determine if (1) they are at risk of being trafficked, (2)
they fear returning to their home country, and (3) they are able to decide independently to return
home voluntarily by withdrawing their application for admission.28 Upon a determination that an
unaccompanied child is not at risk of being trafficked, does not fear returning home, and is able to
decide to withdraw his or her application, the child can be repatriated. Historical y, most UAC
from contiguous countries (almost al of whom have been Mexican) have met such conditions and
been repatriated promptly.29 In contrast, unaccompanied children from noncontiguous countries
who are apprehended at the U.S. border or a POE and found to be inadmissible to the United
States are placed in removal proceedings.30 They are then referred to ORR, where most are
eventual y placed with U.S.-based family-member sponsors while they await their immigration
court hearings.
Under S. 1494, al unaccompanied children who are apprehended at the U.S. border or a POE and
found to be inadmissible to the United States would be processed under revised procedures.
These procedures would be the same regardless of whether the children were from contiguous or
noncontiguous countries and would include the three-part screening described above. If the DHS
officer conducting that screening determined that an unaccompanied child was unable to decide
independently to return home voluntarily, the child would be placed into removal proceedings
(whether or not the officer determined that the child was at risk of being trafficked or feared
returning home).
S. 1494 would require an additional screening in cases in which a DHS officer determined,
through the three-part screening described above, that an unaccompanied child was not at risk of
being trafficked, did not fear returning home, and was able to decide independently to return
home voluntarily, but the child chose not to withdraw his or her application. In such cases, the
unaccompanied child would be repatriated unless an immigration officer trained in interviewing
at-risk children made one of two determinations: (1) it was more likely than not that the UAC
would be trafficked upon return to his or her home country, or (2) it was more likely than not that
the UAC would be granted asylum or another specified form of humanitarian relief. In the event
of the first determination, the UAC would be referred for removal proceedings; in the event of the
second, the UAC would receive a hearing before an immigration judge solely to determine
eligibility for asylum or another specified form of relief. If the judge found the UAC was
ineligible for asylum or other relief, the child would be repatriated. Al such judicial

27 T he INA enumerates grounds of inadmissibility (INA §212(a), 8 U.S.C. §1182(a)), which are grounds upon which
aliens are ineligible to receive visas or to be admitted to the United States. T hese include health, criminal, and security
grounds as well as grounds related to the likelihood of becoming a public charge (indigent), alien smuggling, lack of
appropriate documentation, and unlawful presence in the United States.
28 8 U.S.C. §1232(a)(2)(A). Under INA §235(a) (8 U.S.C. §1225(a)), apprehension at the border constitutes an
application for admission to the United States. In this case, “withdrawal of application for admission” permits the UAC
to return immediately to Mexico or Canada and avoid administrative or other penalties. For further i nformation about
special rules on the treatment of UACs, see CRS Legal Sidebar LSB10150, Im m igration Laws Regulating the
Adm ission and Exclusion of Aliens at the Border.
29 See, for example, U.S. Government Accountability Office, Unaccompanied Alien Children: Actions Needed to
Ensure Children Receive Required Care in DHS Custody, GAO-15-521, July 2015, p. 24.
30 T he removal proceedings referred to in this section are also known as standard removal proceedings or INA Section
240 proceedings. T hey can be distinguished from expedited removal proceedings (see “ Asylum System”). UAC are not
subject to expedited removal.
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determinations would not be subject to review. S. 1494 would al ow DHS to establish new
repatriation agreements—not just with Mexico and Canada, with which it currently has
agreements, but with any country deemed appropriate.
S. 1494 would also grant DHS discretion to detain inadmissible or removable31 alien children
(other than UAC), including those who were previously classified by DHS as unaccompanied. It
would prioritize removal proceedings of such alien children and any family units that include
alien minors, with the goal of adjudicating such cases within 100 days. S. 1494 would invalidate
the Flores Settlement Agreement (Flores),32 which governs detention conditions for inadmissible
or removable alien children (including UAC), and requires that detention and release decisions be
based only upon existing statutes. It would grant DHS authority to determine appropriate
detention conditions for alien children who are part of family units (not UAC), prevent states
from requiring that detention facilities for family units be state-licensed, and al ow relatively
broad conditions for DHS family detention facilities compared to the relatively specific
requirements currently outlined in Flores.33 For future civil cases regarding detention conditions
for alien children, the bil would prohibit any settlement agreement or consent decree that did not
comply with its provisions.
In May 2018, DOJ implemented a “zero tolerance” policy toward il egal border crossing to
discourage unlawful migration into the United States.34 Under the policy, CBP referred al adult
il egal border crossers to DOJ for prosecution. CBP reclassified any children accompanying those
adults as unaccompanied and transferred them to ORR custody. During the six weeks the policy
was in effect, roughly 3,000 children may have been separated from their parents.35 Subsequent
attempts by CBP, ICE, and ORR to reunite the separated children with their parents were
hampered, in part, by limitations of the information technology system CBP used to track the
children.36 H.R. 2203, as passed by the House, would require a new Ombudsman of Border and
Immigration Enforcement Related Concerns, in coordination with CBP, ICE, and ORR, to
develop recommendations for establishing an electronic tracking number system, accessible by al
three agencies, to track the location of children who were separated from their parents or legal
guardians.
The FY2021 Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act (H.R. 7614), as reported by the House Appropriations Committee,
includes various provisions related to the UAC program. The bil (§229) would al ow HHS to
accept donations for the care of unaccompanied children. It also would mandate new

31 T he counterpart to the INA grounds of inadmissibility, the grounds of deportability (enumerated in INA §237(a), 8
U.S.C. §1227(a)) are grounds upon which an alien can be ordered removed from the United States. T hese include
criminal and security grounds as well as grounds related to inadmissibility at the time of entry, presence in the United
States in violation of the law, and violation of the terms or conditions of admission or entry.
32 Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997). Many
terms of the agreement are codified at 8 C.F.R. §§236.3, 1236.3. Also see CRS Report R45297, The “Flores
Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions.
33 Under S. 1494, facilities would be required to be “secure and safe.” DHS would need to ensure that alien minor
children and their accompanying parents are provided with “ suitable living accommodations” as well as access to
drinking water and food. T imely access to medical assistance, including mental health assistance, and access to any
other service necessary for the adequate care of a minor child would also have to be provided.
34 See CRS Report R45266, The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy.
35 For the most recent information on separated families, see U.S. Department of Health and Human Services,
“Unaccompanied Alien Children Information,” https://www.hhs.gov/programs/social-services/unaccompanied-alien-
children/index.html.
36 For more information, see, for example, Government Accountability Office, Southwest Border: Actions Needed to
Im prove DHS Processing of Fam ilies and Coordination between DHS and HHS , GAO-20-245, February 2020.
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congressional reports by DHS regarding children who were separated from their parents or legal
guardians (§233) and by HHS regarding the death of any UAC in ORR custody (§237).
Other provisions in H.R. 7614 would prohibit the use of federal funds for various UAC-related
purposes. Among the prohibited activities would be housing children in facilities that are not
state-licensed (§231), preventing a Member of Congress from entering a UAC facility for
oversight purposes (§232), and implementing an information sharing agreement between ORR
and DHS regarding characteristics of UAC-sponsor household members (§234). Along similar
lines, H.R. 7669, as reported by the House Appropriations Committee, would prohibit the use of
federal funds for certain UAC-related immigration enforcement actions (see the “Interior
Enforcement” section).
Legalization of Unauthorized Immigrants
At several points during the past 20 years, Congress has considered legislation to establish
pathways to lawful permanent resident (LPR) status for unauthorized immigrants (foreign
nationals in the United States without a lawful immigration status). LPRs can live and work
permanently in the United States and can become U.S. citizens through the naturalization process.
Past legalization measures have included stand-alone bil s with pathways to LPR status for
unauthorized childhood arrivals (these bil s typical y have been referred to as Dream Acts)37 as
wel as broader bil s, commonly referred to as comprehensive immigration reform bil s, which
would have enabled unauthorized immigrants more general y to obtain LPR status.38 These latter
bil s often have included a standard legalization pathway for unauthorized immigrants general y
as wel as special, shorter pathways for particular segments of the unauthorized population:
unauthorized childhood arrivals and agricultural workers.
In the 116th Congress, legalization efforts have focused on these same two segments of the
unauthorized population. The House has passed the American Dream and Promise Act of 2019
(H.R. 6),39 which would provide a pathway to LPR status for certain unauthorized childhood
arrivals, and the Farm Workforce Modernization Act of 2019 (H.R. 5038), which would provide a
pathway to LPR status for certain unauthorized foreign agricultural workers. (Both bil s would
also make eligible for these LPR pathways individuals who have Temporary Protected Status or
are under a grant of Deferred Enforced Departure and meet the other eligibility requirements in
the bil s; for information on legislation in the 116th Congress addressing these forms of relief, see
the “Temporary Protected Status and Deferred Enforced Departure” section.)
Childhood Arrivals
Entitled the Dream Act, Title I of H.R. 6 would establish a mechanism for certain individuals in
the United States who arrived at a young age and do not have a lawful immigration status to

37 See CRS Report R45995, Unauthorized Childhood Arrivals, DACA, and Related Legislation .
38 T he most recent bill of this type to receive floor action was the Border Security, Economic Opportunity, and
Immigration Modernization Act (S. 744) in the 113th Congress. See CRS Report R43097, Com prehensive Im m igration
Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744.
39 In terms of legislative process, H.R. 6 was referred to the House Judiciary Committee. Instead of marking up H.R. 6,
the committee marked up separate bills covering H.R. 6’s T itle I on unauthorized childhood arrivals (H.R. 2820) and
T itle II on T emporary Protected Status/Deferred Enforced Departure ( H.R. 2821). T he committee-reported versions of
H.R. 2820 and H.R. 2821 were then recombined into an amended version of H.R. 6, which was considered on the
House floor.
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become LPRs.40 In most cases, these unauthorized childhood arrivals could obtain LPR status
through a two-stage process.41
To obtain conditional LPR status in stage 1, an individual would need to meet a set of
requirements, including continuous presence in the United States since the date that is four years
prior to the date of enactment, initial U.S. entry before age 18, no inadmissibility under spec ified
grounds in the INA42 and no other specified ineligibilities,43 and satisfaction of educational
requirements. Recipients of Deferred Action for Childhood Arrivals (DACA) would be subject to
streamlined application procedures to be established by DHS (for information on legislation in
the 116th Congress addressing DACA, see the “Deferred Action for Childhood Arrivals” section).
Al applicants would need to submit biometric and biographic data for security and law
enforcement background checks. Conditional LPR status would be valid for 10 years.
In stage 2, a conditional LPR would have to meet a second set of requirements (subject to
exceptions) to have the conditional basis of his or her status removed and become a full-fledged
LPR. Among these requirements would be satisfaction of specified education, military service, or
employment criteria. Other stage 2 requirements would include submission of biometric and
biographic data for security and law enforcement background checks, continued clearance of
inadmissibility and ineligibility criteria, and satisfaction of the English language and U.S. civics
requirements for naturalization.
Under H.R. 6, a conditional LPR could apply to have the condition on his or her status removed
at any time after meeting the stage 2 requirements. In addition, the bil would provide that an
applicant meeting al the stage 1 and stage 2 requirements at the time of submitting an initial
application would be granted full-fledged LPR status directly (without first being granted
conditional status).
Agricultural Workers
Title I of the Farm Workforce Modernization Act of 2019 (H.R. 5038) would establish a
mechanism for certain agricultural workers to obtain a legal immigration status. It would enable
agricultural workers who had performed 180 work days of agricultural labor in the United States
during the two years prior to the bill’s date of introduction (November 12, 2019) to obtain a new
legal temporary status termed certified agricultural worker (CAW) status. Other eligibility
requirements for CAW status would include continuous presence in the United States since
November 12, 2019, and clearance of specified INA grounds of inadmissibility44 and other
specified criminal ineligibilities. Applicants would need to submit biometric and biographic data

40 T his title would also cover certain individuals who have T emporary Protected Status or are under a grant of Deferred
Enforced Departure and qualify as childhood arrivals under its terms. In addition, certain individuals eligible for
T emporary Protected Status or Deferred Enforced Departure are separately covered by T itle II of H.R. 6, which is
discussed in the “ T emporary Protected Status and Deferred Enforced Departure” section.
41 For a more detailed discussion of the T itle I provisions on unauthorized childhood arrivals, see CRS Report R45995,
Unauthorized Childhood Arrivals, DACA, and Related Legislation .
42 H.R. 6 specifies the INA grounds of inadmissibility that would apply to applicants for conditional LPR status, which
include health, criminal, and security grounds (subject to some waivers), among others.
43 An individual would be ineligible for conditional LPR status if he or she, for ex ample, had been convicted of a
felony offense (“excluding any offense under state law for which an essential element is the alien’s immigration status,
and any minor traffic offense”) or had “ ordered, incited, assisted, or otherwise participated in the persecution of any
person on account of race, religion, nationality, membership in a particular social group, or political opinion .”
44 H.R. 5038 specifies the grounds of inadmissibility that would apply to applicants for CAW status, which include
health, criminal, and security grounds (subject to some waivers), among others.
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for security and law enforcement background checks. The bil would apply to unauthorized
immigrants as wel as individuals who have Temporary Protected Status or are under a grant of
Deferred Enforced Departure (for more information on legislation in the 116th Congress
addressing these forms of protection, see the “Temporary Protected Status and Deferred Enforced
Departure” section).
CAW status would be valid for 5 1/2 years. Notably, it could be extended in 5 1/2-year increments
indefinitely, provided that the individual performed at least 100 work days of agricultural labor in
each of the first five years in each CAW status period and had not become inadmissible or
ineligible under specified grounds.45 To be granted an extension of CAW status, an applicant
would also need to submit biometric and biographic data for security and law enforcement
background checks.
An individual in CAW status could apply to become an LPR. To be eligible for LPR status, a
CAW who had performed 100 work days of agricultural labor each year for 10 years prior to the
date of enactment would need to perform 100 work days of such labor for 4 years in CAW status.
A CAW who had not performed 100 work days of agricultural labor for 10 years prior to the date
of enactment would need to perform 100 work days of such labor for 8 years in CAW status.
Applicants would also need to remain clear of the grounds of inadmissibility and ineligibility for
CAW status, and would need to submit biometric and biographic data for security and law
enforcement background checks. They would also need to pay a $1,000 fee and satisfy any
applicable federal tax liability.
Subject to specified requirements, H.R. 5038 would provide for the granting of CAW dependent
status to the spouses and children of principal applicants granted CAW status, and for the granting
of LPR status to the spouses and children of principal applicants granted LPR status.
Deferred Action for Childhood Arrivals
DHS announced the DACA initiative in June 2012. Under this initiative, certain individuals who
were brought to the United States as children and met other criteria would be considered for
deferred action on removal for two years, subject to renewal. In addition to protection from
removal, DACA beneficiaries may receive work authorization. In September 2017, then-DHS
Acting Secretary Duke issued a memorandum rescinding DACA,46 which prompted legal
chal enges. Under federal court rulings that followed, individuals who had been granted DACA in
the past continued to be able to submit DACA requests. Individuals who had never been granted
DACA could not submit requests.47

45 By contrast, agricultural worker legalization provisions in past legislation receiving action, such as S. 744 in the 113th
Congress, would have limited legal temporary status to a maximum number of years.
46 U.S. Department of Homeland Security, Memorandum to James W. McCament, Acting Director, U.S. Citizenship
and Immigration Services, T homas D. Homan, Acting Director, U.S. Immigration and Customs Enforcement, Kevin K.
McAleenan, Acting Commissioner, U.S. Customs and Border Protection, Joseph B. Maher, Acting General Counsel,
Ambassador James D. Nealon, Assistant Secretary, International Engagement, Julie M. Kirchner, Citizenship and
Immigration Services Ombudsman, from Elaine C. Duke, Acting Secretary, Rescission of the June 15, 2012
Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United
States as Children,” September 5, 2017, https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.
47 See CRS Report R45995, Unauthorized Childhood Arrivals, DACA, and Related Legislation .
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According to the latest DHS data published as of the date of this report, there were approximately
643,560 active DACA recipients as of March 31, 2020.48 This number was 689,800 at the time of
the termination announcement in September 2017.49
The U.S. Supreme Court heard arguments on the DACA rescission in November 2019 and issued
its ruling on June 18, 2020. As stated in the majority opinion: “The dispute before the Court is not
whether DHS may rescind DACA. Al parties agree that it may. The dispute is instead primarily
about the procedure the agency followed in doing so.” The Court decided that in rescinding
DACA, DHS had not provided adequate reasons or followed proper procedures, which led it to
conclude that “the rescission must be vacated.”50 The Court’s decision does not bar DHS from
terminating DACA in the future, although the department would have to comply with procedural
requirements in doing so.51
Legislation containing provisions on DACA recipients has been considered during the 116th
Congress. Title I of H.R. 6, as discussed above, would direct DHS to establish streamlined
procedures for DACA recipients to apply for LPR status under the bil ’s legalization mechanism
for unauthorized childhood arrivals. H.R. 6800, as passed by the House, would enable DACA
recipients and other beneficiaries of grants of deferred action to maintain that protection during
the COVID-19 public health emergency. Section 191201(a) includes a provision that would direct
DHS to extend the status, employment authorization, or other authorized period of stay of a
beneficiary of deferred action (whose status, employment authorization, or period of stay expires
during specified periods52) for a period that is at least as long as the original grant of deferred
action. In the case of DACA recipients, this would require an extension of at least two years.
A variety of other measures also include DACA-related provisions. P.L. 116-92 (§570B(a))
prohibits the involuntary separation from the U.S. military of an individual solely because he or
she has DACA. H.R. 7669, as reported by the House Appropriations Committee, includes
language to protect DACA-eligible individuals against certain immigration enforcement actions
(see the “Interior Enforcement” section). The Homeownership for DREAMers Act (H.R. 3154),
as reported by the House Financial Services Committee, would provide that DACA recipients
could not be deemed ineligible for mortgage loans backed by the Federal Housing
Administration, Fannie Mae, Freddie Mac, or the U.S. Department of Agriculture based solely on
their DACA status. In addition, a House-reported version of the FY2020 Legislative Branch
Appropriations Act (H.R. 2779) included a provision to authorize the use of funds under the act to
employ individuals who are DACA recipients.53

48 U.S. Department of Homeland Security, U.S. Cit izenship and Immigration Services, “ Approximate Active DACA
Recipients As of March 31, 2020,” https://www.uscis.gov/sites/default/files/document/data/
Approximate%20Active%20DACA%20Receipts%20 -%20March%2031%2C%202020.pdf.
49 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “ Approximate Active DACA
Recipients,” https://www.uscis.gov/sites/default/files/USCI S/Re sources/ Reports%20and%20Studies/
Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf. Reasons for the drop in the
number of DACA recipients from September 2017 to September 2019 include failure to renew DACA and acquisition
of LPR status.
50 U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,—S. Ct.—, 2020 WL 3271746, at *3 (2020).
51 See CRS Legal Sidebar LSB10497, Supreme Court: DACA Rescission Violated the APA.
52 T hese are (1) the period from the declaration of the public health emergency to 90 days after its termination, and (2)
the one-year period after the date of the bill’s enactment.
53 T he enacted FY2020 Legislative Branch Appropriations Act (P.L. 116-94, Div. E) does not include a DACA
employment provision. For information on current restrictions regarding DACA and federal employment, see CRS
Legal Sidebar LSB10244, Are DACA Recipients Eligible for Federal Em ploym ent?
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Deferred Action for COVID-19 Related Workers
House-passed H.R. 6800 would provide temporary protection from removal and employment
authorization to certain unauthorized workers during, and for 90 days after, the COVID-19 public
health emergency. Section 191203 states that an unauthorized worker in the United States
engaged in “essential critical infrastructure labor or services”54 would be considered to be in a
period of deferred action and authorized to be employed. The worker would not have to submit an
application or take other action to receive this protection.
Temporary Protected Status and Deferred Enforced
Departure
Congress created Temporary Protected Status (TPS) in 1990 (P.L. 101-649) to provide relief from
removal and work authorization for foreign nationals in the United States from countries
experiencing armed conflict, natural disaster, or other extraordinary conditions that prevent their
safe return.55 The United States currently provides TPS to approximately 411,000 individuals
from 10 countries.56 In addition, certain Liberians who have been in the United States since 2002
are protected from removal by Deferred Enforced Departure (DED), a form of blanket relief
similar to TPS. Unlike TPS, however, DED is not statutory but emanates from the President’s
constitutional powers to conduct foreign relations.
The 116th Congress has acted on several bil s with provisions on TPS and DED. The Venezuela
TPS Act of 2019 (H.R. 549), as passed by the House, would add Venezuela to the list of countries
designated for TPS. This designation would last for 18 months and could be extended by the DHS
Secretary. Venezuelans who have been continuously present in the United States since the date of
enactment and meet certain other requirements would be eligible to register for TPS. In addition,
an enacted TPS-related provision (P.L. 116-92, §570B(a)) prohibits the involuntary separation of
a member from the U.S. military solely because that individual has TPS.
The Trump Administration announced terminations of TPS for 6 of the 10 designated countries,
but, as of the date of this report, they are on hold pending the outcome of litigation chal enging
the terminations.57 If these terminations take effect, some 400,000 individuals currently covered
by TPS could lose protection from removal and work authorization.58 Liberia’s DED grant is set
to expire on January 10, 2021.
Some Members of Congress have expressed an interest in providing longer-term relief to TPS
holders, most of whom have been living in the United States for at least 19 years. Title II of
House-passed H.R. 6 would enable aliens who were eligible for TPS or DED as of January 1,
2017, and have been living in the United States for at least three years before the date of
enactment to become LPRs. Certain individuals with TPS or DED protection would also be

54 T he bill defines this term by referencing guidance by the Department of Homeland Security’s Cybersecurity &
Infrastructure Security Agency, as revised on April 17, 2020. T he guidance is available at https://www.cisa.gov/sites/
default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_1.pdf .
55 For more information on T PS, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues.
56 T hese countries are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and
Yemen.
57 For information on this litigation, see CRS Legal Sidebar LSB10215, Federal District Court Enjoins the Department
of Hom eland Security from Term inating Tem porary Protected Status.
58 For additional information, see CRS Report RS20844, Temporary Protected Status: Overview and Current Issues.
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covered by the legalization provisions in Title I of H.R. 6 (see “Childhood Arrivals”) and Title I
of H.R. 5038 (see “Agricultural Workers”).
Separate from H.R. 6, the 116th Congress has enacted a pathway to LPR status for certain
Liberians. P.L. 116-92 includes a section on Liberian Refugee Immigration Fairness (§7611),
which al ows Liberian nationals who have been continuously present in the United States since
November 20, 2014, and meet other requirements—whether or not they were covered by DED—
and their family members to obtain LPR status.
Other bil s receiving action in the 116th Congress would provide the TPS population with other
types of relief and protection. H.R. 6800, as passed by the House, would provide COVID-19-
related temporary relief to TPS recipients. TPS recipients would be covered by the same
extension of status provision in Section 191201(a) as recipients of deferred action (see “Deferred
Action for Childhood Arrivals”). This provision would direct DHS to extend the status,
employment authorization, or period of stay of a TPS recipient for a period at least as long as the
original grant of TPS.59 In addition, H.R. 7669, as reported by the House Appropriations
Committee, includes language to protect TPS-eligible individuals against certain immigration
enforcement actions (see “Interior Enforcement”).
Nonimmigrant Admissions
The INA provides for the admission of nonimmigrants to the United States for a temporary period
of time and specific purpose. Nonimmigrant visa categories are identified by letters and numbers,
based on the INA sections that authorize them.
H.R. 6800, as passed by the House, includes provisions to prevent nonimmigrants from losing
status during the COVID-19 public health emergency. Section 191201(a) of the bil would extend
deadlines for filing applications to extend or change status or renew employment authorization
that fal within the period from the declaration of the public health emergency to 90 days after its
termination. It also would prevent aliens from being considered unlawfully present during this
same period if they had been lawfully present prior to the declaration of the emergency.
Furthermore, it would direct DHS to grant automatic extensions of immigration status,
employment authorization, or other authorized periods of stay.
Nonimmigrant Workers
The “H” category is the major nonimmigrant visa category for temporary workers. It includes the
H-2A visa for agricultural workers and the H-2B visa for nonagricultural workers, as wel as the
H-1B visa for specialty occupation workers.60 As described below, however, foreign workers may
also enter the United States through other nonimmigrant visa categories.61 The 116th Congress has
seen action on legislation on temporary workers (in unspecified visa categories) performing
COVID-19-related work as wel as on temporary workers in particular nonimmigrant categories.

59 Under INA Section 244 (8 U.S.C. §1254a), a country may be designated for T PS for a minimum of 6 months and a
maximum of 18 months at a time.
60 INA Section 214(i)(1) (8 U.S.C. §1184(i)(1)) defines specialty occupation as “an occupation that requires theoretical
and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in
the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
61 See CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.
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COVID-19-Related Workers
H.R. 6800, as passed by the House, would make a number of temporary changes to existing
immigration procedures and requirements for nonimmigrants performing COVID-19-related
work.62 Among these changes, the bil (§191204(b)) would direct DHS to expedite the processing
of applications and petitions filed on behalf of nonimmigrants who would “practice medicine,
provide healthcare, engage in medical research, or participate in a graduate medical education or
training program involving the diagnosis, treatment, or prevention of COVID-19.” A related
section (§191204(c)) would direct DOS to expedite the processing of visa applications filed by
these same individuals. Other language in H.R. 6800 (§191204(f)) would enable nonimmigrants
performing work in a “healthcare occupation essential to COVID-19 response” to move into new
COVID-19-related jobs. Foreign nationals can be admitted to the United States to engage in
different types of medical or healthcare work under various nonimmigrant categories, including
several visas discussed here (E-3, H-1B, H-2B, J-1, and O-1 visas). (Other COVID-19 related
provisions in H.R. 6800 that apply to particular nonimmigrant visa categories are discussed below
in the “Other Temporary Workers” section.)
H-2A and H-2B Workers
The H-2A visa program is for agricultural workers and the H-2B visa program is for
nonagricultural workers. Bringing workers into the United States under either program is a
multiagency process involving the U.S. Department of Labor (DOL), DHS, and the U.S.
Department of State (DOS). As an initial step in the process, a prospective H-2A or H-2B
employer must apply for DOL labor certification to ensure that U.S. workers are not available for
the jobs in question and that the hiring of foreign workers wil not adversely affect the wages and
working conditions of U.S. workers. After receiving labor certification, the employer can submit
an application, known as a petition, to DHS to bring in foreign workers. DHS’s U.S. Citizenship
and Immigration Services (USCIS), which administers the nation’s lawful immigration system, is
responsible for adjudicating H-2A and H-2B petitions. If the petition is approved, a foreign
worker who is abroad can then go to a U.S. embassy or consulate to apply for an H-2A or H-2B
nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that
he or she can use to apply for admission to the United States at a POE.63 Under DHS regulations,
participation in the H-2A and H-2B visa programs is limited to nationals of countries designated
annual y by DHS, with the concurrence of DOS.64
H-2A Agricultural Workers
The H-2A visa al ows for the temporary admission of foreign workers to the United States to
perform agricultural labor or services of a temporary or seasonal nature. It is governed by
provisions in the INA and by regulations issued by DHS and DOL.65 It is not subject to a
numerical cap.

62 T he temporary provisions discussed here would cease to be effective 180 days after the termination of the public
health emergency.
63 See CRS Report R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues.
64 For 2020, nationals of 84 countries are eligible to participate in the H-2A program and nationals of 81 countries are
eligible to participate in the H-2B program. See U.S. Department of Homeland Security, “ Identification of Foreign
Countries Whose Nationals Are Eligible T o Participate in the H–2A and H–2B Nonimmigrant Worker Programs,” 85
Federal Register 3067, January 17, 2020.
65 For a discussion of H-2A statutory provisions and regulations, including a temporary rule issued by DHS in April
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Title II of H.R. 5038, as passed by the House, proposes significant changes to the H-2A visa,
including with respect to required wages. Currently, H-2A employers must pay the highest of
several wage rates: the federal or state minimum wage rate, prevailing wage rate, adverse effect
wage rate (AEWR), or agreed-upon collective bargaining wage rate. In practice, the AEWR,
which is an average hourly wage for field and livestock workers combined in a state or region, is
often the highest of these rates. Among its wage-related provisions, H.R. 5038 would retain the
requirement for employers to pay the highest of the listed wage rates, but would change the way
the AEWR is determined. It proposes to calculate separate AEWRs for individual occupational
classifications, preferably by state or region if such data are reported.66
Among its other H-2A provisions, H.R. 5038 proposes to establish a six-year Portable H–2A Visa
Pilot Program to enable a limited number of H-2A workers to perform agricultural labor for
employers who would not need to file H-2A petitions. However, the employers would need to go
through a registration process, pay H-2A required wages, and meet other requirements. H.R. 5038
would also al ow DHS to approve petitions for H-2A workers to perform non-temporary or non-
seasonal agricultural work, subject to an initial annual numerical limitation of 20,000.
Al owing H-2A workers to perform work that is year-round in nature is also the subject of a
provision in H.R. 7669, as reported by the House Appropriations Committee. Section 412 of that
bil would permit the admission of H-2A workers in FY2021 to perform non-temporary or non-
seasonal agricultural work.
H-2B Nonagricultural Workers
The H-2B visa al ows for the temporary admission of foreign workers to the United States to
perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are
not available. While the INA includes some H-2B requirements, most are set forth in DHS and
DOL regulations.67 By statute, the H-2B visa is subject to an annual numerical cap. Under the
INA, the total number of aliens who may be issued H-2B visas or otherwise provided with H-2B
nonimmigrant status in any fiscal year may not exceed 66,000. In recent years, the demand for H-
2B visas has exceeded the cap.68
As part of the H-2B application process, employers must accurately indicate the starting and
ending dates of their period of need for H-2B workers. Employers are not al owed to stagger the
entry of H-2B workers between these starting and ending dates. An exception to this staggered
entry prohibition, however, applies to H-2B employers in the seafood industry. First enacted as
part of the FY0214 Consolidated Appropriations Act (P.L. 113-76) and then extended in
subsequent annual appropriations measures, this provision permits an employer with an approved
H-2B petition to bring in H-2B workers under that petition any time during the 120-day period
beginning on the employer’s starting date of need. In order to bring in workers between day 90
and day 120, though, the employer must conduct additional U.S. worker recruitment.69

2020 in response to the COVID-19 emergency, see CRS Report R44849, H-2A and H-2B Tem porary Worker Visas:
Policy and Related Issues.
66 For further discussion of the H-2A wage requirements and H.R. 5038, see CRS Report R44849, H-2A and H-2B
Tem porary Worker Visas: Policy and Related Issues.
67 For a discussion of H-2B statutory provisions and regulations, including a temporary rule issued by DHS in May
2020 in response to the COVID-19 emergency, see CRS Report R44849, H-2A and H-2B Tem porary Worker Visas:
Policy and Related Issues.
68 See CRS Report R44306, The H-2B Visa and the Statutory Cap.
69 T his H-2B seafood industry staggered entry provision was also incorporated into the 2015 DHS-DOL interim final
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A provision (§109) in Division A of the FY2020 Further Consolidated Appropriations Act (P.L.
116-94) extends the H-2B seafood industry staggered entry exception for FY2020. Division A
also extends for FY2020 other previously enacted H-2B provisions that address H-2B prevailing
wage determinations (§110) and prohibit the use of funds in the act to implement certain
regulatory provisions related to the H-2B labor certification process (§111).70
In addition, the 116th Congress has enacted annual provisions on H-2B numerical limitations that
authorize DHS to increase the number of aliens who may receive H-2B visas beyond the statutory
cap upon a determination that the needs of U.S. businesses cannot be met by U.S. workers. P.L.
116-6 included such a provision for FY2019 (Div. H, §105), and DHS made 30,000 additional H-
2B visas available for that year.71 P.L. 116-94 (Div. I, §105) provides this same authority for
FY2020. In early March 2020, DHS announced that it would make 35,000 supplemental H-2B
visas available for the second half of FY2020, while simultaneously taking steps to “promote
integrity in the program” and “combat fraud and abuse.”72 In early April, in the midst of the
coronavirus pandemic, DHS said that it was putting the rule on the supplemental H-2B visas on
hold.73 Using the same legislative language as these earlier DHS appropriations measures, H.R.
7669, as reported by the House Appropriations Committee, would authorize DHS to increase the
number of aliens who may receive H-2B visas beyond the statutory cap for FY2021 upon a
determination that the needs of U.S. businesses cannot be met by U.S. workers.
E-3 Specialty Occupation Workers
The REAL ID Act of 2005 (P.L. 109-13, Div. B, Title V) created a new E-3 nonimmigrant visa
category, which is currently limited to nationals of Australia. Like H-1B visas, E-3 visas are for
temporary workers in specialty occupations.74 The E-3 visa category has an annual numerical
limit of 10,500,75 which has never been reached. H.R. 2877, as passed by the House, would make
Irish nationals eligible for E-3 nonimmigrant visas. The number of E-3 visas available to Irish
nationals in a fiscal year—if any—would be equal to the number of the al otted 10,500 visas left
unused by Australian E-3 workers in the previous fiscal year. H.R. 2877 would also require the
employer of an E-3 visa holder to participate in the E-Verify program (see “Electronic
Employment Eligibility Verification”).
Other Temporary Workers
In addition to the temporary COVID-19-related provisions discussed above that could apply to
nonimmigrants in various visa categories, House-passed H.R. 6800 includes temporary COVID-

rule on H-2B employment. For further discussion of the H-2B staggered entry provision, see CRS Report R44306, The
H-2B Visa and the Statutory Cap.
70 See CRS Report R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues.
71 See CRS Report R44306, The H-2B Visa and the Statutory Cap.
72 U.S. Department of Homeland Security, “ DHS to Improve Integrity of Visa Program for Foreign Workers,” March 5,
2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
73 According to DHS, “ DHS’s rule on the H-2B cap is on hold pending review due to present economic circumstances.
No additional H-2B visas will be released until further notice”; Suzanne Monyak, “ DHS Halts Extra Guestworker
Visas As Unemployment Jumps,” Law360, April 2, 2020.
74 INA Section 214(i)(1) (8 U.S.C. §1184(i)(1)) defines specialty occupation as “an occupation that requires theoretical
and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in
the specific specialty (or its equivalent) as a minimum for entry into the occupat ion in the United States.”
75 INA §214(g)(11), 8 U.S.C. §1184(g)(11).
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19-related provisions in Section 191204(d) applicable to specific nonimmigrant visa categories.76
For example, this section includes language to ease both license-related requirements for H-1B
physicians and petition-related requirements for H-1B nonimmigrants in medical or healthcare
fields.77 It also would expand al owable work activities for physicians on J-1 cultural exchange
visas.78
In addition, Section 191204(d) of H.R. 6800 proposes to permanently increase the mobility of
certain nonimmigrant workers. It includes language to amend the INA to increase the ability of
certain J-1 nonimmigrants to change to another nonimmigrant category. 79 This section also would
authorize a nonimmigrant on an O-1 visa to accept new employment upon the filing of a petition
by the prospective employer (without having to wait for the petition to be approved to start that
employment).80 O-1 visas are for persons of extraordinary ability in the sciences, arts, or other
specified fields.81
Other Nonimmigrants
As discussed above, there are multiple nonimmigrant visa categories for workers. Most
nonimmigrants who enter the United States, however, do not do so for employment purposes. The
overwhelming majority of nonimmigrant visas issued each year are B visas for business (B-1
visas), tourism (B-2 visas), or a combination of the two activities (B-1/B-2 visas). Foreign
students, who enter on F visas for academic study or M visas for vocational training, represent
another sizable group of nonimmigrants. H.R. 7669, as reported by the House Appropriations
Committee, contains provisions on business travelers and tourists from Mexico and foreign
students.
Business Travelers and Tourists from Mexico
A Mexican citizen who resides in Mexico can obtain a border crossing card (BCC) for short-term
visits to the U.S. border zone for business or tourism. The BCC is also a B-1/B-2 visa. BCC
holders are limited to visits of up to 30 days within designated border zones in Texas, California,
New Mexico, and Arizona.82 H.R. 7669 (§108) would direct DHS to implement a five-year pilot
program for Mexican BCC holders visiting New Mexico or Arizona. Under the program, these
visitors would be al owed to travel anywhere in those states (beyond the border zones).
Foreign Students
In general, foreign students in the United States on F and M visas are expected to attend their
classes in person. Regulations limit the number of online courses per term that these students may

76 T hese provisions would cease to be effective 180 days after the termination of the public health emergency.
77 H.R. 6800, §§191204(d)(1) and 191204(d)(2), respectively.
78 H.R. 6800, §191204(d)(3).
79 H.R. 6800, §191204(d)(5).
80 H.R. 6800, §191204(d)(4).
81 For additional information about these visa categories, see CRS Report R45040, Immigration: Nonimmigrant
(Tem porary) Adm issions to the United States.
82 T he designated border zone spans 25 miles from the border in T exas and California is; 55 miles from the border in
New Mexico; and 75 miles from the border in Arizona. In certain instances specified in 8 C.F.R. Section 235.1(h),
BCC entry is limited to 72 hours.
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count toward their full-time requirements.83 In March 2020, DHS announced that, given the
restrictions on travel and in-person classes resulting from the COVID-19 pandemic, it would
al ow students to temporarily count online classes toward a full course of study.84 In early July
2020, DHS issued updated guidance, stating that F and M nonimmigrant students would not be
permitted to enter or remain in the United States if they were attending schools that would be
offering only online classes for the fal 2020 term.85 After lawsuits from universities and states,
DHS rescinded this new guidance, reverting to its March guidance. Section 237 of H.R. 7669, as
reported by the House Appropriations Committee, would prohibit federal funds from being used
to modify or revoke the March 2020 guidance with respect to the maintenance of, or eligibility
for, F and M status.
Commonwealth of the Northern Mariana Islands
The Consolidated Natural Resources Act of 2008 (P.L. 110-229) extended U.S. immigration laws
to the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific.
P.L. 110-229 aimed, in particular, to provide for federal regulation and oversight of the admission
of foreign workers to the territory. It established a transition period (currently scheduled to end on
December 31, 2029) to accommodate the move from the former CNMI foreign worker permit
system to the U.S. immigration system, during which it authorized the issuance of CNMI-Only
Transitional Worker (CW-1) visas. This visa classification al ows CNMI employers to apply for
permission to employ foreign workers who are otherwise ineligible to work under the
nonimmigrant worker categories in the INA. P.L. 110-229 also created a CNMI-only investor visa
for persons who previously had investor permits under the territorial system.
In the 115th Congress, the Northern Mariana Islands Economic Expansion Act (P.L. 115-53)
revised the CW-1 classification such that CW-1 visas are general y no longer available to workers
who wil be performing jobs classified as construction and extraction occupations by DOL.86 The
Northern Mariana Islands U.S. Workforce Act of 2018 (P.L. 115-218) set decreasing annual
numerical limitations on the CW-1 visa during the transition period. In the 116th Congress, H.R.
4479, as ordered to be reported by the House Natural Resources Committee, would al ow for
3,000 CW-1 workers in construction and extraction occupations for each of FY2020, FY2021,
and FY2022. These workers would be limited to nationals of countries eligible to participate in
the H-2B program in 2018 (see “H-2B Nonagricultural Workers”) who are performing disaster- or
emergency-related work. They would not be counted against the CW-1 annual caps.
Other legislation considered in the 116th Congress focuses on long-time CNMI residents.
Beginning in 2011, USCIS established special parole programs that granted permission to certain
populations to reside in the CNMI (see “Parole”). These populations included immediate relatives
of U.S. citizens legal y residing in the CNMI and certain CNMI-born individuals considered

83 8 C.F.R. Section 214.2(f)(6)(i)(G) limits F students to one course per term, and 8 C.F.R. Section 214.2(m)(9)(v)
states that M students may not count any online courses toward their full-time requirement.
84 Department of Homeland Security Immigration and Customs Enforcement, “COVID-19: Guidance for SEVP
Stakeholders,” March 13, 2020, https://www.ice.gov/sites/default/files/documents/Document/2020/
Coronavirus%20Guidance_3.13.20.pdf.
85 Department of Homeland Security Immigration and Customs Enforcement, “Broadcast Message: COVID -19 and
Fall 2020,” July 6, 2020. T his guidance has been rescinded. It can be accessed at https://www.nafsa.org/sites/default/
files/media/document/bcm2007-01.pdf.
86 Exceptions are provided for workers who have maintained continuous CW-1 status for the same employer since
before October 1, 2015.
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“stateless.”87 In December 2018, USCIS announced plans to end the CNMI parole programs in
accordance with Executive Order 13767.88
The Northern Mariana Islands Long-Term Legal Residents Relief Act (P.L. 116-24) establishes a
new CNMI Resident Status for certain individuals, including those granted parole under the
terminated parole programs. This status al ows an individual to be treated as an alien lawfully
admitted to the Commonwealth only. H.R. 560, as passed by the House, would provide CNMI
Resident Status to two categories of long-term CNMI residents not covered by P.L. 116-24:
workers and investors who were original y admitted and authorized to stay indefinitely when the
CNMI controlled immigration to the territory.
Permanent Admissions
The two main components of U.S. permanent (or LPR) admissions are family-based immigration
and employment-based immigration.89 Another LPR admissions category, for diversity
immigrants, seeks to increase immigration from countries with relatively low levels of U.S.
permanent admissions.90 The INA imposes a system of numerical limitations on these permanent
admissions categories. Both H.R. 6800 (§191201(b)(2)), as passed by the House, and H.R. 7669
(§413), as reported by the House Appropriations Committee, include provisions related to these
numerical limits. These provisions would recapture family-sponsored, employment-based, and
diversity LPR numbers that go unused in FY2020 and FY2021. Any unused numbers in each year
would be added to the available total for the subsequent fiscal year (FY2021 and FY2022,
respectively).91
How prospective immigrants apply for LPR status depends on where they reside. If they reside in
the United States, they may apply to adjust status from a temporary (nonimmigrant) status (e.g.,
H-1B specialty occupation worker) to LPR status.92 If they live abroad, they may apply as new
immigrant arrivals and would typical y enter the United States on immigrant visas. House-passed
H.R. 6800 (§191201(b)(1)) would extend the validity period93 of immigrant visas that expire
during the COVID-19 public health emergency or within 90 days after it expires.

87 For more information, see U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“Parole for Immediate Relatives of U.S. Citizens and Certain Stateless Individuals,” January 17, 2017,
https://www.uscis.gov/legal-resources/immigration-commonwealth-northern-mariana-islands-cnmi/parole-immediate-
relatives-us-citizens-and-certain-stateless-individuals.
88 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “T ermination of the Categori cal
Parole Programs for Certain Individuals Present in the Commonwealth of the Northern Mariana Islands (CNMI),” June
28, 2019, https://www.uscis.gov/news/alerts/termination-categorical-parole-programs-certain-individuals-present -
commonwealth-northern-mariana-islands-cnmi. Note that the body of this news alert was issued on December 27,
2018; the alert was updated in June 2019 following enactment of P.L. 116-24.
89 See CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview.
90 See CRS Report R45973, The Diversity Immigrant Visa Program .
91 T he INA permits any unused family-sponsored LPR numbers in a fiscal year to be used for employment -based
immigrants in the following year, and vice versa, as specified in Section 201(c)(3)(C) (8 U.S.C. §1151(c)(3)(C)) and
§201(d)(2)(C) (8 U.S.C. §1151(d)(2)(C)). T he bills, however, would not permit either of these transfers of unused LPR
numbers for FY2021 and FY2022.
92 See CRS Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.
93 A visa’s validity period is the time during which the visa is valid for travel to the United States. It is different from
the duration of status, or length of time that the visa holder is permitted to remain in the United States.
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Employment-Based Immigration
Legislation on permanent admissions that has received action in the 116th Congress to date has
focused mainly on employment-based immigration. The current employment-based LPR (green
card) system consists of five numerical y limited preference categories.94 To qualify within one of
these employment-based (EB) categories, a foreign national must be (1) a person of extraordinary
ability in a specified area, (2) a person of exceptional ability in a specified area, (3) a shortage
worker who is either skil ed (or professional) or unskil ed, (4) a person who meets the definition
of a special immigrant,95 or (5) an investor who wil start a business that creates at least 10 new
jobs.96 (These preference categories are commonly referred to as EB-1, EB-2, etc.) The INA
al ocates 140,000 admissions annual y for al employment-preference immigrants and
accompanying family members.
EB-1, EB-2, and EB-3 Workers
Currently, there is a backlog of almost 1 mil ion foreign nationals and accompanying family
members lawfully residing in the United States who have been approved for, and are waiting to
receive, employment-based green cards.97 Most are being sponsored through the first three
employment-based categories. The backlog exists, and is projected to increase each year, because
the number of foreign workers who self-sponsor or are sponsored by U.S. employers for green
cards each year exceeds the INA annual al ocation. In addition to this numerical limit, there is a
statutory 7% per-country ceiling applied to each preference category, which prevents the
monopolization of employment-based green cards by foreign nationals from a few countries. This
per-country ceiling has created decades-long waits for nationals from large migrant-sending
countries such as India and China.
Legislation under consideration in the 116th Congress would significantly impact the first three
employment-based categories. The Fairness for High-Skil ed Immigrants Act (H.R. 1044), as
passed by the House, would eliminate the 7% per-country ceiling. It would al ocate employment-
based visas to prospective immigrants by application date on a first-come, first-served basis
without regard to country of origin. However, it would not reduce the backlog because it would
not increase the number of foreign nationals receiving green cards. As passed by the House, H.R.
1044 would include a three-year transition period from the current system to the new system. A
related bil of the same name has been introduced in the Senate as S. 386, and is under
consideration by the Senate Judiciary Committee.98

94 For an overview of the U.S. system of permanent admissions, of which employment -based immigration is a main
component, as well as information about the five employment-based preference categories, see CRS Report R42866,
Perm anent Legal Im m igration to the United States: Policy Overview.
95 Special immigrants include religious workers, long-serving employees of the U.S. government abroad, and Iraqi and
Afghan nationals who have worked on behalf of the U.S. government in t heir home countries. See CRS Report
R43725, Iraqi and Afghan Special Im migrant Visa Program s.
96 See CRS Report R45447, Permanent Employment-Based Immigration and the Per-country Ceiling.
97 See CRS Report R46291, The Employment-Based Immigration Backlog. A large proportion of these workers are
seeking to adjust from H-1B nonimmigrant status to LPR status through the first three employment-based categories.
For more information, see CRS Report R45040, Im m igration: Nonim migrant (Tem porary) Admissions to the United
States.
98 For further discussion of S. 386 and the issue of removing the per-country ceiling for employment-based immigrants,
see CRS Report R46291, The Em ploym ent-Based Im migration Backlog.
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Separately, Section 207 of House-passed H.R. 5038, the Farm Workforce Modernization Act of
2019, would increase the number of immigrant visas available for EB-3 preference category
immigrants from the current 40,040 to 80,040. The additional 40,000 immigrant visas would be
reserved for qualified workers who either could perform agricultural labor in the United States or
could demonstrate employment as an H–2A temporary agricultural worker in the United States
for 100 days in each of 10 years.99 This latter group of qualified agricultural workers would be
able to self-petition for immigrant visas, whereas al other EB-3 prospective immigrants would
stil need an employer to petition on their behalf. The agricultural worker immigrant visas would
not be subject to the 7% ceiling governing al employment-based immigrant visas or to the labor
certification requirements for al EB-3 immigrant visas.100 (For additional discussion of H.R.
5038, see “Agricultural Workers.”)
H.R. 6800, as passed by the House, includes a temporary COVID-19-related provision
(§191204(a)) to facilitate the admission of physicians under the EB-2 preference category.101
Among the provision’s requirements, a physician would need to attest that he or she wil engage
in the practice of medicine or medical research related to COVID–19.
EB-4 Special Immigrants
Special immigrants comprise the fourth category of permanent employment-based admissions
under the INA. Over the years, various special immigrant classifications have been established in
statute. While the classifications cover different groups, there are some common elements across
multiple beneficiary populations, such as U.S. government employment or other public service-
type work.102
The 116th Congress has acted on measures on the permanent special immigrant category for
juveniles and the temporary special immigrant programs for Afghans employed by or on behalf of
the U.S. government and for non-minister religious workers. It also has considered legislation to
establish new special immigrant programs for certain COVID-19 workers and for certain Syrians
employed by or on behalf of the U.S. government.
Special Immigrant Juveniles
The INA defines a special immigrant juvenile (SIJ) as an unmarried foreign national under age 21
in the United States who possesses a juvenile court order declaring that he or she is a ward
(dependent) of the court; is unable to be reunified with one or both parents because of abuse,
abandonment, or neglect; and is granted SIJ status by DHS. The INA further specifies that to be
eligible for SIJ status, it must not be in the alien’s best interests to return to his or her home
country.103 A person with SIJ status can apply to adjust to LPR status through the fourth
employment-based immigrant category for special immigrants. Concerns that increasing numbers

99 For more information on the H-2A temporary agricultural worker program, see CRS Report R44849, H-2A and H-2B
Tem porary Worker Visas: Policy and Related Issues.
100 Before an individual can be granted an EB-3 visa, DOL must determine through its foreign labor certification
program that (1) there are insufficient able, willing, qualified, and available U.S. workers to perform the work in
question; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of
similarly employed U.S. workers. INA §212(a)(5), 8 U.S.C. §1182(a)(5).
101 T his provision would cease to be effective 180 days after the termination of the public health emergency.
102 For background information on the special immigrant category, see CRS Report R43725, Iraqi and Afghan Special
Im m igrant Visa Program s.
103 For background information, see archived CRS Report R43703, Special Immigrant Juveniles: In Brief.
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of unaccompanied alien children are using SIJ status to acquire LPR status have some
immigration enforcement advocates cal ing for legislation to narrow the SIJ criteria.104
S. 1494, as reported by the Senate Judiciary Committee, would limit eligibility for SIJ status to
those who are not able to reunify with either parent, rather than with one or both parents.105 The
bil would also give DHS the non-reviewable discretion to determine (1) if an order of
dependency or custody had been granted by the court primarily to provide LPR status to the
foreign national, and (2) whether the court had appropriate jurisdiction to do so.
Afghan Special Immigrants
The FY2009 Omnibus Appropriations Act (P.L. 111-8) established a temporary special immigrant
visa (SIV) program to grant LPR status to certain Afghan nationals employed by or on behalf of
the U.S. government in Afghanistan; this classification, as amended, also applies to certain
employees of the International Security Assistance Force.106 Spouses and children are also
eligible for classification as special immigrants. This Afghan SIV program is not subject to the
INA numerical limits on employment-based immigration, but is subject to a separate cap. It was
initial y capped at 1,500 principal aliens (excluding spouses and children) annual y for FY2009
through FY2013, but a subsequent series of laws provided additional visas. By the start of the
116th Congress, 14,500 visas had been made available for issuance after December 19, 2014,
subject to an application deadline of December 31, 2020. The required period of employment also
had to be completed by December 31, 2020.107
In the 116th Congress, P.L. 116-6 (Div. F, §7076) provided an additional 4,000 visas for this
Afghan SIV program, for a total of 18,500 visas available for issuance after December 19, 2014,
but made no change to the application deadline or employment completion date. This law also
made the funding for the additional 4,000 visas conditional on DOS developing a system for
prioritizing the processing of Afghan SIV applications and submitting specified reports. P.L. 116-
92 (Div. A, §1219) modifies the Afghan SIV eligibility criteria to eliminate certain employment-
related requirements. It also increases the number of visas available for issuance to 22,500 and
extends the application deadline and employment completion date to December 31, 2021.
The FY2021 Department of State, Foreign Operations, and Related Programs Appropriations Act
(H.R. 7608, §7034(l)(11)), as passed by the House, would make 4,000 additional visas available
under the Afghan SIV program (bringing the total to 26,500). It would also extend the application
deadline and employment completion date to December 31, 2022.
The National Defense Authorization Act for Fiscal Year 2021 (S. 4049), as reported by the Senate
Armed Services Committee, includes a “sense of the Senate” section (Div. A, §1214) on the
Afghan SIV program. Among the statements in this section are “any backlog in processing

104 See, for example, Andrew R. Arthur, Catch and Release Escape Hatches: Loopholes that encourage illegal entry,
Center for Immigration Studies, May 4, 2018.
105 For example, a child may not be able to be reunified with her mother, and the mother and father may live apart, in
which case the child could not be reunified with one parent (the mother) or both parents. However, the child in this
example could be reunified with her father. Current statute would allow her to qualify for SIJ status, By contrast, the
provision in S. 1494 would prevent this child from qualifying for SIJ status because she could be reunified with at least
one of her parents (in this case, her father).
106 P.L. 111-8, Div. F, T itle VI, 8 U.S.C. §1101 note. A separate permanent special immigrant visa classification covers
Afghans (and Iraqis) who have worked for the United States as translators or interpreters. See CRS Report R43725,
Iraqi and Afghan Special Im m igrant Visa Program s.
107 See CRS Report R43725, Iraqi and Afghan Special Immigrant Visa Programs.
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special immigrant visa applications should be addressed as quickly as possible so as to honor the
United States commitment to Afghan al ies” and “to prevent harm to the operations of the United
States Government in Afghanistan, additional visas should be made available to principal aliens
who are eligible for special immigrant status” under that program.108 The related House measure
is the Wil iam M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
(H.R. 6395). This bil , as reported by the House Armed Services Committee, includes language
(Div. A, §1212) to extend both the application deadline and the employment completion date for
the Afghan SIV program to December 31, 2022.109
Special Immigrant Religious Workers
Religious workers are also the subject of a special immigrant category. DHS regulations define a
religious worker as a minister or an individual engaged in and qualified for a religious occupation
or vocation according to the denomination’s standards. While the statutory provision for the
admission of ministers of religion is permanent, the provision admitting other religious workers
has always had a sunset date. The 116th Congress extended the special immigrant program for
non-minister religious workers through September 30, 2019, in P.L. 116-6 (Div. H, §102) and
through September 30, 2020, in P.L. 116-94 (Div. I, §102).
Special Immigrant Status for Certain Nonimmigrants Performing COVID-19-
Related Work
H.R. 6800 (§191204(g)), as passed by the House, would authorize DHS to grant LPR status, as
special immigrants, to nonimmigrants who “engaged in the practice of medicine, provision of
healthcare services, or medical research involving the diagnosis, treatment, or prevention of
COVID–19 disease” during the period from the declaration of the COVID-19 public health
emergency to 180 days after its termination. The spouses and children of these workers would
also be eligible for special immigrant status. The program, which would not be subject to the INA
numerical limits on employment-based immigration, would be capped at 4,000 principal aliens
annual y for three fiscal years after the date of the bil ’s enactment.
Special Immigrant Status for Certain Syrians
The Promoting American National Security and Preventing the Resurgence of ISIS Act of 2019
(S. 2641), as reported by the Senate Foreign Relations Committee, would establish a new special
immigrant program for certain Syrian Kurds and other Syrians. Modeled on the SIV programs for
Iraqis110 and Afghans employed by or on behalf of the U.S. government (discussed above), this
program would apply to Syrian nationals or stateless Kurds habitual y residing in Syria who were
employed by, or on behalf of, the U.S. government “in a role that was vital to the success of the
United States’ Counter ISIS mission in Syria.” Spouses and children of principal applicants would
also be eligible for classification as special immigrants. This SIV program would not be subject to
the INA numerical limits on employment-based immigration, but would be separately capped at
400 principal aliens per fiscal year.

108 Div. A, §1214(8). T he Senate passed S. 4049 on July 23, 2020, but the text of the approved measure was not
available from the Government Publishing Office as of the date of this report.
109 T he text of H.R. 6395, as reported, is available at https://rules.house.gov/bill/116/hr-6395. The House passed H.R.
6395 on July 21, 2020, but the text of the approved measure was not available from the Government Publishing Office
as of the date of this report.
110 For information on the SIV program for Iraqis employed by or on behalf of the U.S. government, see CRS Report
R43725, Iraqi and Afghan Special Im migrant Visa Program s.
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EB-5 Immigrant Investors
The fifth preference category under the INA employment-based immigration system is for
immigrant investors coming to the United States. The stated aim of the immigrant investor visa,
commonly referred to as the EB-5 visa, is to benefit the U.S. economy, primarily through
employment creation and an influx of foreign capital. EB-5 visas are designated for individuals
wishing to develop a new commercial enterprise in the United States. The INA stipulates that for
an investor to qualify, the enterprise must create or preserve at least 10 jobs, and the individual
must invest a specified amount of capital in the enterprise.111
In 1992, P.L. 102-395 authorized a temporary program to achieve the economic activity and job
creation goals of the EB-5 visa category by encouraging investment in economic units known as
Regional Centers.112 The Regional Center Program is intended to provide a coordinated focus for
foreign investment toward specific geographic regions. The overwhelming majority of EB-5
immigrant investors come through this program. P.L. 116-6 extended the Regional Center
Program through September 30, 2019 (Div. H, §104), and P.L. 116-94 extends it through
September 30, 2020 (Div. I, §104).
Asylum and Refugee Status
The INA provides for the granting of asylum and refugee status to foreign nationals who meet the
act’s definition of a refugee as wel as other requirements particular to each category. There is no
fee for applying for these types of humanitarian relief. The INA defines a refugee, in general, as a
person who is unable or unwil ing to return to his or her home country because of persecution or a
wel -founded fear of persecution based on one of five characteristics: race, religion, nationality,
membership in a particular social group, or political opinion. After one year in the United States
as an asylee (a person granted asylum) or a refugee, an individual can apply for LPR status.113
While applicants for asylum and refugee status are subject to the same persecution standard,
procedures under the programs differ. Depending on the circumstances, foreign nationals who are
present in the United States or arriving in the United States (whether or not at POEs) may be able
to apply for asylum with USCIS or seek asylum before an EOIR immigration judge during
removal proceedings. The INA provides that an arriving foreign national who lacks proper
immigration documents or engages in fraud or misrepresentation can be placed in a streamlined
removal proceeding known as expedited removal. If, however, an alien placed in expedited
removal expresses a fear of persecution and a USCIS asylum officer determines that the
individual has a credible fear of persecution (defined in the INA to mean that there is a
“significant possibility” that the alien could establish eligibility for asylum), then he or she is
referred to an EOIR immigration judge for a hearing.114 By contrast, refugees are processed and

111 A 2019 DHS final rule substantially revised the EB-5 program. See U.S. Department of Homeland Security, “EB–5
Immigrant Investor Program Modernization,” 84 Federal Register 35750, July 24, 2019.
112 P.L. 102-395, Title VI, §610. DHS regulations define a Regional Center as a public or private economic unit
engaged in the promotion of economic growth, improved regional productivity, job creation, and increased domestic
capital investment. 8 C.F.R. §204.6(e).
113 In the case of refugees, the INA requires application for LPR status after one year. INA §209(a), 8 U.S.C.
§1159(a).T here is no comparable statutory requirement for asylees.
114 See CRS Report R45539, Immigration: U.S. Asylum Policy. T his report discusses statutory asylum provisions as
well as asylum-related policies implemented by the T rump Administration. Also see CRS In Focus IF11363,
Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes; and CRS Infographic IG10017, Processing of
Adults and Fam ily Units Arriving at the Southern Border Without Valid Docum ents.
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admitted to the United States from abroad. DOS’s Bureau of Population, Refugees, and Migration
(PRM) coordinates and manages the U.S. refugee program, and USCIS makes final
determinations about eligibility for admission.
Asylum System
S. 1494, as reported by the Senate Judiciary Committee, would make changes to the statutory
asylum process.115 It would tighten the credible fear of persecution standard described above by
redefining the term to mean that “it is more likely than not that the alien would be able to
establish eligibility for asylum.” For an officer to make a positive credible fear finding, he or she
would also need to determine that “it is more likely than not that the statements made by the alien
or on behalf of the alien are true.”
Among the other changes S. 1494 would make to the asylum system, only those foreign nationals
who entered the United States at a POE would be able to apply for asylum. The bil also proposes
to add new grounds of ineligibility for asylum. It would make ineligible an individual who has
been convicted of a felony, has been previously removed from the United States, or is
inadmissible under an INA ground of inadmissibility (excluding the grounds related to public
charge, labor certification, and documentation requirements). S. 1494 would also make ineligible
for asylum a national of a country in Central America that has a U.S. refugee application and
processing center (which the bil would separately establish; see “Refugee Admissions Program”)
or that is contiguous to a country with such a center (other than Mexico).
H.R. 7669, as reported by the House Appropriations Committee, includes several asylum-related
provisions. One provision (§106) would require DHS to collect data and publicly report on “each
modality through which aliens [seeking asylum] are removed, expel ed, extradited, or otherwise
involuntarily returned” to other countries. Another section (§533) provides that no federal funds
could be made available to implement an enumerated list of immigration-related Administration
actions, which include asylum-related proposed and final rules, policy memoranda, and policies.
Refugee Admissions Program
Under the INA, the annual number of refugees that can be admitted into the United States, known
as the refugee ceiling, and the al ocation of the ceiling are set by the President after consultation
with Congress at the start of each fiscal year.116 Subject to these numerical limitations, an
individual overseas who is a refugee, as defined above, may be admitted to the United States if he
or she is not firmly resettled in a foreign country, is found to be of special humanitarian concern
to the United States, and is admissible under the applicable grounds of inadmissibility in the
INA.117
There are different ways to gain access to U.S. refugee resettlement consideration. For example,
an individual can be referred to the U.S. refugee program by the United Nations High
Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated non-governmental

115 For background information on asylum, see CRS Report R45539, Immigration: U.S. Asylum Policy.
116 For fiscal years prior to FY2020, Presidents set annual worldwide refugee ceilings and regional allocations (that is,
allocations of the annual ceilings among the regions of the world). For FY2020, the President set a worldwide refugee
ceiling (of 18,000). Rather than allocating this ceiling by region, however, he allocated it by “population of special
humanitarian concern.” See archived CRS Insight IN11196, FY2020 Refugee Ceiling and Allocations. For general
background, see CRS Report RL31269, Refugee Adm issions and Resettlem ent Policy.
117 See CRS Report RL31269, Refugee Admissions and Resettlement Policy.
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organization. Individuals who fal within specified groups of special humanitarian concern may
apply directly to the U.S. refugee admissions program. In some cases, these groups (known as P-2
groups) have been designated by statute.118 S. 2641, as reported by the Senate Foreign Relations
Committee, would direct the Secretary of State to designate as a new P-2 group certain Syrian
Kurds and other Syrians, including persons employed by the U.S. government in Syria in support
of the U.S. military or humanitarian missions in that country.
As noted earlier, PRM coordinates and manages the U.S. refugee program. P.L. 116-6 includes a
provision in Division F (Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2019, §7073(b)(3)) stating that none of the funds appropriated under that
division or any other act “may be used to downsize, downgrade, consolidate, close, move, or
relocate the Bureau of Population, Refugees, and Migration, Department of State, or any
activities of such Bureau, to another Federal agency.” P.L. 116-94 (Div. G, §7062(b)(2)) includes
the same language for FY2020.
S. 1494, as reported by the Senate Judiciary Committee, would amend the INA provisions on
refugee admissions temporarily to direct DOS, in consultation with DHS, to establish refugee
application and processing centers to accept and process refugee applications.119 It would require
that one center be located in Mexico and that at least three centers be located in Central America.
S. 1494 would further direct DOS and DHS to prescribe fees for applications received and
adjudicated at the centers. S. 1494 specifies that these amendments would be in effect for three
years and 240 days.
Lautenberg Amendment on Refugees
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg
amendment,” first enacted in 1989 as part of P.L. 101-167, required the Attorney General (now
the DHS Secretary) to designate categories of Soviet and Indochinese nationals for whom less
evidence would be needed to prove refugee status. In the case of Soviet nationals, the original law
stipulated that certain religious minority groups were to be designated as categories. The
Lautenberg amendment also provided for the adjustment to LPR status of certain individuals
denied refugee status.
P.L. 108-199 amended the Lautenberg amendment to add a new provision, known as the “Specter
amendment,” that directed the Attorney General to establish categories of Iranian religious
minorities who could qualify for refugee status under the Lautenberg amendment’s reduced
evidentiary standard. The Lautenberg amendment has been regularly extended over the years,
although at times there have been lapses between extensions. The amendment, which currently
applies to members of certain religious minority groups from an independent state of the former
Soviet Union; the Baltic states of Estonia, Latvia, or Lithuania; or Iran, was extended through
September 30, 2019, by P.L. 116-6 (Div. F, §7034(m)(5)), and is currently extended through
September 30, 2020, by P.L. 116-94 (Div. G, §7034(l)(5)). H.R. 7608 (§7034(l)(5)), as passed by
the House, would extend the Lautenberg amendment through September 30, 2021.

118 See CRS Report RL31269, Refugee Admissions and Resettlement Policy.
119 For information on how refugee processing is currently conducted, see CRS Report RL31269, Refugee Admissions
and Resettlem ent Policy.
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Noncitizen Eligibility for Federal Public Benefits
As discussed below, H.R. 6800, as passed by the House, would expand noncitizen eligibility for
the Medicaid program. H.R. 6800, as wel as the Coronavirus Aid, Relief, and Economic Security
(CARES) Act (P.L. 116-136) and the Families First Coronavirus Response Act (FFCRA; P.L.
116-127), also includes more general provisions on federal public benefits with implications for
noncitizen eligibility.120 For example, H.R. 6800 would make changes to the recovery rebate
established by the CARES Act to al ow for coverage of individuals who filed tax returns using
Individual Taxpayer Identification Numbers (ITINs).121 While these provisions are beyond the
scope of this report, they are covered in other CRS products.122
Medicaid Eligibility for Citizens of the Freely Associated States
In the 1980s and 1990s, the Republic of the Marshal Islands, the Federated States of Micronesia,
and the Republic of Palau signed Compacts of Free Association (COFA) with the United States.
Under the Compacts, these Freely Associated States (FAS) are sovereign nations yet subject to
certain limitations and obligations regarding international security and economic relations.123
FAS citizens are afforded certain immigration-related benefits that permit them to live, study, and
work in the United States. Since the compacts went into effect, thousands of FAS migrants have
established residence in U.S. states and territories.
Prior to 1996, FAS citizens residing in the United States were eligible for federal public benefits.
However, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA; P.L. 104-193), as amended, barred FAS citizens, among others, from most federal
public benefits, such as Medicaid, Supplemental Nutrition Assistance Program (SNAP), and
Supplemental Security Income (SSI).124
H.R. 6800, as passed by the House, would modify PRWORA to require the 50 states and the
District of Columbia to extend Medicaid eligibility to FAS citizens who are lawfully residing in
the United States under COFA. The bil would also permit the governors of the U.S. territories of
Puerto Rico, Guam, the Virgin Islands, the Northern Mariana Islands, and American Samoa to
elect to extend Medicaid eligibility to FAS citizens who are lawfully residing in their respective
territories. In the territories making this election, FAS citizens would be a new Medicaid
mandatory eligibility group.125 In addition, Medicaid services provided to these program enrollees

120 For more information about noncitizen eligibility for selected federal public ben efits included in the CARES Act
and FFCRA, see CRS Report R46339, Unauthorized Im migrants’ Eligibility for COVID-19 Relief Benefits: In Brief.
121 T he recovery rebate, as originally enacted, was limited to otherwise eligible persons who filed their tax returns using
a social security number (SSN); SSNs are typically issued to U.S. citizens, LPRs, and noncitizens with work
authorization. Noncitizens who are ineligible for an SSN are required to use an IT IN wh en filing their tax returns. One
cannot infer immigration status based solely on the use of an SSN or IT IN. For more information, see CRS
Congressional Distribution memorandum, Noncitizen Eligibility for a Work-Authorized Social Security Num ber (SSN),
available to congressional clients upon request.
122 See CRS Insight IN11376, Noncitizens and Eligibility for the 2020 Recovery Rebates, and CRS Insight IN11398,
How Would the HEROES Act (H.R. 6800) Modify the Direct Paym ents Enacted in the CARES Act (P.L. 116 -136)?
123 For background information on the compacts, see CRS Congressional Distribution memorandum, Summary of S.
2218, the Covering Our FAS Allies Act, as introduced , available to congressional clients upon request.
124 For more information, see CRS Report RL33809, Noncitizen Eligibility for Federal Public Assistance: Policy
Overview.
125 For more information about Medicaid mandatory eligibility groups, see CRS In Focus IF10322, Medicaid Primer.
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would not be subject to the annual federal Medicaid capped funding that is applicable in each
such territory.126
U.S. Citizenship and Naturalization
The INA delineates how a person may acquire U.S. citizenship.127 Under INA Section 320, a child
born outside the United States automatical y acquires U.S. citizenship if he or she (1) has at least
one parent who was a U.S. citizen at the time of the child’s birth, (2) is under age 18, and (3) is
residing in the United States in the citizen parent’s legal and physical custody.128 Children born to
U.S. military servicemembers and U.S. civil servants who are stationed and living abroad do not
receive automatic citizenship under the INA because they do not meet the third requirement for
U.S. residence. The Citizenship for Children of Military Members and Civil Servants Act (P.L.
116-133) changes this by providing that a foreign-born child of a U.S. citizen member of the
Armed Forces or government employee automatical y acquires U.S. citizenship even if the child
is not residing in the United States.
The INA al ows noncitizens who serve in the U.S. military and meet certain requirements to
acquire U.S. citizenship through an expedited naturalization process.129 Recent media reports
have described cases of noncitizen U.S. veterans who served in and were honorably discharged
from the U.S. military, neglected to apply for citizenship, subsequently were convicted of crimes
that made them removable, and were then deported to their countries of origin.130 Legislative
proposals have been introduced regularly in Congress to require the U.S. military to help ensure
that noncitizen enlistees are both made aware of expedited citizenship and assisted in the
application process. P.L. 116-92 (§570D) requires each branch of the U.S. military to provide
counseling to enlisted noncitizen military servicemembers regarding how to apply for U.S.
naturalization.
H.R. 6800 (§191202), as passed by the House, would direct DHS to establish procedures for the
administration of the naturalization oath remotely (as an alternative to in-person naturalization
ceremonies) during the COVID-19-related public health emergency.
Other Issues and Legislation
Electronic Employment Eligibility Verification
Employment eligibility verification is widely viewed as a key element in a strategy to reduce
unauthorized immigration.131 Under the INA, it is unlawful for an employer to knowingly hire,

126 For more information, see CRS In Focus IF11012, Medicaid Financing for the Territories.
127 For background information on how foreign nationals acquire U.S. citizenship, see archived CRS Report R43366,
U.S. Naturalization Policy.
128 8 U.S.C. §1431.
129 Under these provisions, a member of the military can naturalize after one year of military service in peacetime and
immediately during wartime. INA §328, 8 U.S.C. §1439; INA §329, 8 U.S.C. §1440. See CRS In Focus IF10884,
Expedited Citizenship through Military Service.
130 See, for example, Maria Ines Zamudio, “Deported U.S. Veterans Feel Abandoned By T he Country T hey Defended,”
NPR, WBEZ, June 21, 2019.
131 For further information about employment eligibility verification and the E-Verify system, see CRS Report R40446,
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recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed.
Employers are further required to participate in a paper-based (I-9) employment eligibility
verification system in which they examine documents presented by new hires to verify identity
and work eligibility, and complete and retain I-9 verification forms.132
While al employers must meet the I-9 requirements, they also may participate in the USCIS-
administered E-Verify electronic employment eligibility verification system. E-Verify is largely
voluntary but has some mandatory participants, such as certain federal contractors.133 Participants
in E-Verify electronical y verify new hires’ employment authorization through Social Security
Administration and, if necessary, DHS databases. E-Verify is a temporary program. The 116th
Congress extended the program through September 30, 2019, in P.L. 116-6 (Div. H, §101), and
through September 30, 2020, in P.L. 116-94 (Div. I, §101).
Title III of H.R. 5038, as passed by the House, would direct DHS to establish an electronic
employment eligibility verification system. The new system would be modeled on—and would
replace—E-Verify, and would be permanent. Mandatory participants in E-Verify would be
required to use the new verification system. In addition, participation in the new system would be
mandatory for “a person or entity hiring, recruiting, or referring for a fee an individual for
agricultural employment in the United States.” The participation requirement for the agricultural
industry with respect to hiring would be phased in by employer size. The effective dates for
mandatory participation would be tied to the application period for the agricultural worker
legalization program in Title I of H.R. 5038 (see “Agricultural Workers”).
Waivers for Foreign Medical Graduates
Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in
order to receive graduate medical education and training. Such FMGs must return to their home
countries after completing their education or training for at least two years before they can apply
for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of this
foreign residency requirement. States are able to request waivers on behalf of FMGs under a
temporary program, known as the Conrad State Program or the Conrad 30 Program; under the
program, each state can be al otted up to 30 waivers annual y. Established in 1994 by P.L. 103-
416, the Conrad State Program initial y applied to aliens who acquired J status before June 1,
1996, and has been regularly extended. The 116th Congress extended the program through
September 30, 2019, in P.L. 116-6 (Div. H, §103) and through September 30, 2020, in P.L. 116-94
(Div. I, §103).
H.R. 6800 (§191204(e)), as passed by the House, proposes to permanently authorize the Conrad
State Program in amended form. The bil would increase the per state waiver al otment to 35 per
fiscal year and further provide for that number to increase or decrease annual y based on usage, as
specified in the bil .
Treaty Traders and Treaty Investors
Treaty traders and investors may enter the United States on E-1 or E-2 nonimmigrant visas,
respectively. To qualify for either visa, a foreign national must be a citizen or national of a

Electronic Em ploym ent Eligibility Verification.
132 INA §274A, 8 U.S.C. §1324a.
133 For further information on the federal contractor requirements, see the U.S. Department of Homeland Security’s E -
Verify page on Federal Contractors at https://www.e-verify.gov/employers/federal-contractors.
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country with which the United States maintains a treaty of commerce and navigation.134 In
addition, the foreign national must demonstrate that the purpose of coming to the United States is,
in the case of the E-1 visa, “to carry on substantial trade, including trade in services or
technology, principal y between the United States and the treaty country”; or, in the case of the E-
2 visa, “to develop and direct the operations of an enterprise in which the national has invested, or
is in the process of investing, a substantial amount of capital.”135 H.R. 565, as passed by the
House, would make nationals of Portugal eligible for E-1 and E-2 nonimmigrant visas if the
government of Portugal provides similar nonimmigrant status to nationals of the United States.
Parole
Parole is a means by which an alien may be permitted to physical y enter or remain in the United
States without being deemed to have been “admitted” to the country for immigration purposes.
The INA authorizes the Attorney General (now the DHS Secretary) to “parole into the United
States temporarily under such conditions as he may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit any alien applying for admission into
the United States.”136 Parole does not constitute formal admission to the United States; an
individual granted parole is stil considered to be an applicant for admission.137 Over the years,
the former Immigration and Naturalization Service (INS) and DHS established special parole
programs for certain populations.
S. 1494, as reported by the Senate Judiciary Committee, would place restrictions on the DHS
Secretary’s parole authority. It would amend the INA parole provision to delineate the particular
circumstances in which the Secretary could grant humanitarian or significant public interest
parole. It also would specify that the Secretary could not grant parole “according to eligibility
criteria describing an entire class of potential parole recipients,” and that the parole authority
could not be used “to supplement established immigration categories without an Act of
Congress.” Separately, a provision in Executive Order 13767 directs the Secretary “to ensure that
[INA] parole authority … is exercised only on a case-by-case basis in accordance with the plain
language of the statute.”138
Executive Action on Immigration
The National Origin-Based Antidiscrimination for Nonimmigrants (No BAN) Act (H.R. 2214), as
reported by the House Judiciary Committee, would amend an INA provision that, in main part,
authorizes the President to suspend, or impose restrictions on, the entry into the United States of
any aliens as immigrants or nonimmigrants whenever the President finds that the entry of such
aliens would be detrimental to U.S. interests.139 Under the revision proposed by H.R. 2214, the
President could temporarily suspend, or impose restrictions on, the entry of aliens as immigrants
or nonimmigrants

134 8 C.F.R. §214.2(e)(6). A treaty country includes a foreign state that is accorded treaty visa privileges under Section
101(a)(15)(E) of the INA by specific legislation. For the current list of countries that qualify, see U.S. Departmen t of
State, “T reaty Countries,” https://travel.state.gov/content/visas/en/fees/treaty.html.
135 INA §101(a)(15)(E), 8 U.S.C. §1101(a)(15)(E).
136 INA §212(d)(5), 8 U.S.C. §1182(d)(5).
137 For additional discussion of parole, see CRS Report R45158, An Overview of Discretionary Reprieves from
Rem oval: Deferred Action, DACA, TPS, and Others.
138 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 8793,
January 30, 2017.
139 INA §212(f), 8 U.S.C. §1182(f).
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if the Secretary of State, in consultation with the Secretary of Homeland Security,
determines, based on specific and credible facts, that the entry of any aliens or any class of
aliens into the United States would undermine the security or public safety of the United
States or the preservation of human rights, democratic processes or institutions, or
international stability.
This authority would be subject to statutory limitations, including requirements to narrowly tailor
the suspension or restriction on entry and to specify its duration. In addition, prior to the President
issuing an entry suspension or restriction, the Secretary of State and the Secretary of Homeland
Security would need to consult Congress and provide specific evidence supporting the need for
the suspension or restriction and its proposed duration. The amended provision would further
al ow for an individual or entity in the United States who has been harmed by a violation of the
provision to seek relief in federal court. Among its other provisions, H.R. 2214 would terminate
specified executive orders and presidential proclamations. These include Executive Order 13769,
Executive Order 13780, and Presidential Proclamation 9645, known collectively as the “Travel
Ban.”140 The House approved the reported version of H.R. 2214, as modified, as part of an
amendment to the Senate-passed version of an unrelated bill (H.R. 2486).141
Under a provision (§533) in H.R. 7669, as reported by the House Appropriations Committee, no
federal funds could be made available to implement an enumerated list of immigration-related
Administration actions, which include Executive Order 13768 on enhancing public safety and
Presidential Proclamation 9983, which imposes entry restrictions on nationals of certain
countries.
Access to Legal Counsel
Access to counsel is an issue that arises in different contexts in the U.S. immigration system,
including in interactions between foreign nationals seeking U.S. entry at POEs and CBP
officers.142 The Access to Counsel Act of 2020 (H.R. 5581), as reported by the House Judiciary
Committee, would amend the INA to ensure that a covered individual seeking entry into the
United States has the opportunity to consult with counsel and an interested party (such as a
relative) during the CBP inspection process. For purposes of H.R. 5581, covered individuals
include LPRs returning from trips abroad, refugees, and foreign nationals with valid visas seeking
immigrant or nonimmigrant admission. The House approved the reported version of H.R. 5581,
as modified, as an amendment to the Senate-passed version of an unrelated bil (H.R. 2486).143 A
provision (§218) in H.R. 7669, as reported by the House Appropriations Committee, would
require DHS to ensure that individuals placed in formal removal proceedings had access to legal
counsel and the opportunity to consult with counsel in advance of court appearances.

140 For further discussion, see CRS Legal Sidebar LSB10458, Presidential Actions to Exclude Aliens Under INA §
212(f).
141 For the text of the amendment, see U.S. Congress, Rules Committee Print 116 -52, https://www.congress.gov/
committee-print/116th-congress/house-committee-print/40154?s=4&r=2.
142 For a comparison of procedural protections (including access to counsel) available to aliens arriving at the U.S.
border and within the United States, see CRS Legal Sidebar LSB10150, Im m igration Laws Regulating the Adm ission
and Exclusion of Aliens at the Border.
143 For the text of the amendment, see U.S. Congress, Rules Committee Print 116 -53, https://www.congress.gov/
committee-print/116th-congress/house-committee-print/40155?s=3&r=1.
Congressional Research Service
33

Immigration Legislation and Issues in the 116th Congress

Author Information

Andorra Bruno, Coordinator
Abigail F. Kolker
Specialist in Immigration Policy
Analyst in Immigration Policy

William A. Kandel
Jill H. Wilson
Analyst in Immigration Policy
Analyst in Immigration Policy

Disclaimer
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under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
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Congressional Research Service
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