Immigration: S Visas for Criminal and Terrorist Informants

Immigration: S Visas for Criminal and Terrorist Informants

Order Code RS21043
Updated January 23, 2007
Immigration: S Visas for Criminal and
Terrorist Informants
Karma Ester
Technical Information Specialist
Knowledge Services Group
Summary
In response to the terrorist acts of September 11, 2001, Congress passed legislation
making permanent a provision that allows aliens with critical information on criminal
or terrorist organizations to come into the United States to provide information to law
enforcement officials. This legislation (S. 1424) became P.L. 107-45 on October 1,
2001. The law amended the Immigration and Nationality Act to provide permanent
authority for the administration of the “S” visa, which was scheduled to expire on
September 13, 2001. On November 29, 2001, then-Attorney General John Ashcroft
announced the “Responsible Cooperators Program” to reach out to persons who may be
eligible for the S visa. Up to 200 criminal informants and 50 terrorist informants may
be admitted annually. Since FY1995, more than 500 informants and their accompanying
family members have entered on S visas. No terrorist informants have been admitted
into the U.S. since 1996. This report will be updated as warranted by legislative,
funding, or policy developments.
Background
Following the 1993 bombing of the World Trade Center in New York City, Congress
amended the Immigration and Nationality Act (INA) to establish the new “S”
nonimmigrant visa category for alien witnesses and informants as part of the Violent
Crime Control Act of 1994.1 Nonimmigrants are admitted for a specific purpose and a
temporary period of time. Nonimmigrants — such as B-2 tourists, F-1 foreign students,
A-1 diplomats, H-2A temporary agricultural workers, J-1 exchange visitors, or L
intracompany business personnel — are typically referred to by the letter denoting the
subsection of the INA that provides the authority for their admission; hence the “S visa”
is the abbreviated reference to §101(a)(15)(S) of the INA.2
1 P.L. 103-322
2 For background on immigration policy, see CRS Report RS20916, Immigration and
Naturalization Fundamentals, by Ruth Wasem.

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The provision establishing the S visa in the INA was originally due to expire on
September 13, 1999, but Congress extended it until September 13, 2001.3 Aliens
admitted through the S visa categories are designated as S-5 and S-6 nonimmigrants.4
Request for these visas must be filed by a state or federal law enforcement agency, and
the filing agency must assume responsibility for the alien from their time of entry until
their departure, or until they adjust status. Under this law, the Attorney General5 has the
discretion to waive any ground of exclusion for an “S” nonimmigrant, except for those
regarding Nazi persecution and genocide.6 The length of stay for a S-5 or S-6
nonimmigrant is limited to three years, and no extension of stay is permitted; however,
adjustment to legal permanent residence (LPR) is possible. As Table 1 indicates, 511
informants have been admitted from FY1995 through May FY2004.
Criminal Informants (S-5)
The S-5 classification may be granted to a foreign national who has been determined
by the Attorney General to possess critical, reliable information concerning a criminal
organization or enterprise. The alien must be willing to supply or have supplied this
information to federal or state law enforcement authorities, or to a federal or state court.
The Attorney General must also determine that the alien’s presence in the United States
is essential to the success of an authorized criminal investigation or to the successful
prosecution of an individual involved in a criminal organization or enterprise. The
number of witnesses or informants granted S-5 status in a fiscal year may not exceed 200.7
Terrorist Informants (S-6)
The S-6 category of classification may be granted to an alien who the Attorney
General and Secretary of State have determined possesses critical, reliable information
concerning a terrorist organization, operation, or enterprise, and who is willing to supply
or has supplied information to federal law enforcement authorities or to a federal court.
The Attorney General and Secretary must also determine that the alien has been or will
be placed in danger as a result of providing information, and is eligible to receive a cash
reward under §36(a) of the State Department Basic Authorities Act of 1956.8 The number
3 8 U.S.C. §1184(k)(2); INA §214(k)(2).
4 Due to prior use of S-1 and S-2 classification codes, the S informants are designated as S-5 and
S-6 even though the statutory cites are 101(a)(15)(S)(I) and (ii) of INA.
5 Although current regulations (8 C.F.R. §2.1) vest all authorities and functions to administer and
enforce the immigration laws (including the S visa program) with the Secretary of Homeland
Security or his delegate, it can be argued that the language in the Homeland Security Act of 2002
(HSA; P.L. 107-296) has left the Attorney General with concurrent authority over the S visa
program. For more information see, CRS Report RL31997, Authority to Enforce the Immigration
and Nationality Act (INA) in the Wake of the Homeland Security Act: Legal Issues, by Stephen
R. Viña.
6 8 U.S.C. §1182(a)(3)(E); INA §212(a)(3)(E).
7 8 U.S.C. §1184(j)(1); INA §214(j)(1).
8 8 U.S.C. §1255(j)(2).

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of informants admitted under this classification may not exceed 50 in any fiscal year. No
terrorist informants have been admitted under the S-6 category since 1996.
Accompanying Family Members (S-7)
The law allows the informant’s accompanying family members — including spouses,
married or unmarried children, and parents — to receive S nonimmigrant visas. These
accompanying family members are referred to as S-7 nonimmigrants. As detailed in
Table 1, 332 family members of informants have been admitted from FY1995 through
FY2004.9
Table 1. Nonimmigrants Admitted Under S-Visa Category,
FY1995-FY2004
Informants
Family Members
Fiscal Year
Admitted
Admitted
1995
59
77
1996
98
21
1997
35
19
1998
90
56
1999
50
33
2000
21
17
2001
56
22
2002
42
37
2003
30
28
2004
30
22
Total
511
332
Source: CRS presentation of unpublished data from the U.S. Department of Justice.
Adjustment of Status
The Attorney General may adjust the status of S-5 nonimmigrants and their family
members to that of aliens lawfully admitted for permanent residence (LPRs) if the aliens
have supplied information as agreed, and the information has contributed substantially to
a successful criminal investigation. The Attorney General likewise may adjust the status
of S-6 nonimmigrants and their accompanying family members to LPR status if the aliens
9 In 2005, oversight of the S visa program was transferred to Immigration and Customs
Enforcement (ICE) in the Department of Homeland Security. No new data is currently available.

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have — in the sole discretion of the Attorney General — substantially contributed
information that led to
! the prevention or frustration of an act of terrorism against the United
States, or
! a successful investigation or prosecution of an individual involved in
such an act of terrorism.
The informants also must have received a reward under §36(a) of the State Department
Basic Authorization Act of 1956.10
Prior to an “S” nonimmigrant adjusting status, a Form I-854 must be filed on the
alien’s behalf by the federal or state law enforcement agency that originally requested the
visa. Currently, this application must be approved by the Assistant Attorney General in
charge of the Criminal Division of the Department of Justice and the Assistant Secretary
of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security
(DHS). These LPR adjustments are then counted against the per country ceilings of the
numerically limited legal immigration system. Upon adjusting status, the nonimmigrant
will remain deportable if convicted of a crime involving moral turpitude, for 10 years after
the date of adjustment.
Other Conditions and Requirements
Aliens admitted under the S-5 and S-6 categories are required to report quarterly to
the Attorney General. If an alien fails to meet the reporting requirements, deportation
proceedings may be instituted. The alien will lose lawful nonimmigrant status if
convicted of any criminal offense punishable by one year or more of imprisonment after
the date of admission. The alien must waive the right to contest (other than on the basis
of an application for withholding of deportation) any action of deportation instituted
before that alien obtains lawful permanent residence status. The alien must also abide by
any other limitations, restrictions, or conditions imposed by the Attorney General.11
Legislative History
Senator Edward Kennedy, chairman of the Senate Committee on the Judiciary’s
Subcommittee on Immigration, introduced legislation (S. 1424) providing permanent
authority for the S visa on September 13, 2001. S. 1424 passed the Senate by unanimous
consent that same day, and the House likewise passed S. 1424 by unanimous consent on
September 15, 2001. Members of Congress stated that it was very important to pass this
legislation to aid federal, state, and local law enforcement agencies in their investigation
of the terrorist attacks of September 11, 2001. On October 1, 2001, President Bush signed
P.L. 107-45, providing permanent authority for admission under the S visa.
10 8 U.S.C. §1255(j); INA §245(j).
11 8 U.S.C. §1184(k)(4); INA §214(k).

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Responsible Cooperators Program
On November 29, 2001, then-Attorney General John Ashcroft announced the
“Responsible Cooperators Program” to reach out to potential terrorist informants. The
Attorney General asked that all non-U.S. citizens who are present in the United States or
who seek to enter our country come forward to the FBI with any valuable information
they have to aid in the war on terrorism and said that, in return for this information, the
Department of Justice would assist nonresident aliens in obtaining S visas.12 The
Attorney General also stated that aliens who provide useful and reliable information but
are not technically eligible for S visas would receive assistance in seeking either parole
or deferred action status, which would allow them to reside in the United States.
Legislation in the 109th Congress
Although no legislation was enacted regarding the S visa program, several bills were
introduced in the 109th Congress that would have amended and expanded the S visa
category. H.R. 255 and H.R. 4044 would have established an additional category within
the S visa to include aliens with reliable information on alien smuggling enterprises, and
would have established a reward program in DHS to help eliminate such enterprises.
Additionally, H.R. 1320 would have made similar changes to the program, and would
have added an additional category to penalize those transporting aliens for the purpose of
prostitution or servitude.
Section 410 of S. 2611 as passed by the Senate would have expanded the S visa to
include aliens in possession of critical knowledge regarding weapons of mass destruction,
and would have increased the numerical limit on admissions from 200 to 1,000 per fiscal
year. Additionally, S. 2611 would have required DHS to submit a report to Congress if
the number of S nonimmigrants admitted fell below 25% of the numerical limit, and
detail any extenuating circumstances contributing to the shortfall in admissions.
12 John Ashcroft, Interview, Good Morning America, Nov. 29, 2001.