Order Code RS21438
February 26, 2003
CRS Report for Congress
Received through the CRS Web
Immigration Legislation Enacted
in the 107th Congress
Analyst in American National Government
Domestic Social Policy Division
The 107th Congress enacted a variety of immigration-related laws. The Homeland
Security Act (P.L. 107-296) reorganizes the federal government with the creation of a
new Cabinet-level Department of Homeland Security. As part of this reorganization,
it abolishes the Immigration and Naturalization Service (INS) and transfers INS’s
enforcement and service functions to separate bureaus within the new department. The
USA PATRIOT Act (P.L. 107-56) and the Enhanced Border Security and Visa Entry
Reform Act (P.L. 107-173) contain important provisions on border security, admissions
policy, and foreign students. Among the other immigration-related laws enacted by the
107th Congress are measures that expand noncitizen eligibility for food stamps, extend
special refugee provisions for former Soviet and Indochinese refugees, and create new
nonimmigrant visa sub-categories for border commuter students.
This report provides brief summaries of 16 immigration-related laws enacted by the
107th Congress, organized by issue areas. However, it does not cover appropriations
provisions. Table 1 lists the laws in order of enactment.
Reorganization of Immigration-Related Functions
The Homeland Security Act of 2002 (P.L. 107-296), enacted on November 25, 2002,
reorganizes the federal government with the creation of a new Cabinet-level Department
of Homeland Security (DHS). As part of this reorganization, it abolishes the Immigration
and Naturalization Service (INS), an agency of the Department of Justice (DOJ), and
transfers INS’s service and enforcement functions to DHS. Within DHS, the Act
establishes a Bureau of Border Security under a Directorate of Border and Transportation
Security to handle INS’s immigration enforcement function and establishes a Bureau of
Citizenship and Immigration Services to handle INS’s adjudication and service
responsibilities. Under P.L. 107-296, the Department of State (DOS) retains its role in
issuing visas, but the Secretary of DHS is given authority to issue regulations on visa
policy. Other INS functions either remain at DOJ or are transferred to the Department of
Congressional Research Service ˜ The Library of Congress
Health and Human Services (HHS). (See CRS Report RL31560, Homeland Security
Proposals: Issues Regarding Transfer of Immigration Agencies and Functions.)
Border Security and Admissions Policy
Prior to the passage of the Homeland Security Act, the 107th Congress enacted two
major laws affecting border security and admissions policy. The USA PATRIOT Act
(P.L. 107-56) is a broad anti-terrorism measure that contains provisions to enhance
security at the northern border. To this end, it authorizes appropriations to triple the
number of INS border patrol personnel and INS inspectors there, among other provisions.
With respect to admissions policy, the PATRIOT Act amends the inadmissibility section
of the Immigration and Nationality Act (INA) to broaden somewhat the terrorism grounds
for excluding aliens. It also seeks to improve the screening of visa applicants and
applicants for admission. It amends the INA to direct the Attorney General and the
Director of the Federal Bureau of Investigation to share data from domestic criminal
record databases with DOS and INS to determine whether these applicants have criminal
records. It further requires the Attorney General and the Secretary of State to develop and
certify a technology standard that can be used to verify the identity of visa applicants and
applicants for admission.
The Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)
likewise aims to improve border security and the visa issuance process. Among its
provisions, it authorizes appropriations for additional INS inspectors, investigators, and
support staff; personnel training; and technology and infrastructure improvements. It
requires the development of an interoperable electronic data system to be used to share
information relevant to alien admissibility and removability and the implementation of
an integrated entry-exit data system. In addition, it places new requirements on the Visa
Waiver Program, which allows nationals of certain countries to enter the United States
as temporary visitors without visas. (See CRS Report RL31727, Border Security:
Immigration Issues in the 108th Congress, CRS Report RL31512, Visa Issuances: Policy,
Issues, and Legislation, CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, and CRS Report RS21205, Immigration: Visa Waiver Program.)
Foreign Students. Both the PATRIOT Act and P.L. 107-173 contain provisions
to increase the monitoring of foreign students in the United States. The PATRIOT Act
expands the foreign student tracking system and authorizes appropriations for the system.
To close perceived loopholes in the admission of foreign students, P.L. 107-173
establishes electronic means to monitor and verify various aspects of the process, such as
the registration and enrollment of nonimmigrants in the schools or exchange programs.
(See CRS Report RL31146, Foreign Students in the United States: Policies and
Noncitizen Eligibility for Public Benefits
P.L. 107-171, known as the “farm bill,” contains substantial changes to the food
stamp eligibility rules for noncitizens. It expands eligibility to include: all legal
permanent resident (LPR) children regardless of date of entry (it also ends requirements
to deem sponsors’ income and resources to these children); LPRs receiving government
disability payments, as long as they pass any noncitizen eligibility test established by the
disability program (e.g., SSI recipients have to meet SSI noncitizen requirements in order
to get food stamps); and all individuals who have resided in the United States for 5 or
more years as “qualified aliens” — i.e., LPRs, refugees/asylees, and other non-temporary
legal residents (such as Cuban/Haitian entrants). (See CRS Report RL31114, Noncitizen
Eligibility for Major Federal Public Assistance Programs: Policies and Legislation.)
The 107th Congress enacted several refugee-related measures. A general provision
in the FY2002 Departments of Labor, HHS, and Education Appropriations Act (P.L. 107116, §213) extended the “Lautenberg amendment” through FY2002. The Lautenberg
amendment requires the Attorney General to designate categories of former Soviet and
Indochinese nationals for whom less evidence is needed to prove refugee status, and
provides adjustment to LPR status for certain Soviet and Indochinese nationals denied
refugee status. P.L. 107-185 revises and re-enacts for FY2002 and FY2003 a provision
commonly referred to as the “McCain amendment,” which made the adult children of
certain Vietnamese refugees eligible for U.S. refugee resettlement. (See CRS Report
RL31269, Refugee Admissions and Resettlement Policy.)
Other Immigration-Related Legislation
Border Commuter Students. The Border Commuter Student Act of 2002 (P.L.
107-274) amends the INA to create new F and M student visa sub-categories to enable
Mexican and Canadian commuter students to attend classes in the United States. These
students are to be included in the foreign student monitoring system.
Child-Related Legislation. The Child Status Protection Act (P.L. 107-208)
amends the INA to address the issue of children “aging out” of the definition of “child”
while their petitions or applications are pending. (Under the INA, a “child” is an
unmarried person under age 21.) P.L. 107-208 sets new rules for determining whether an
alien is a child, where the alien is the unmarried son or daughter of a U.S. citizen, LPR,
asylee, or refugee. Section 11030B of P.L. 107-273, the DOJ Authorization act, amends
the INA to allow another citizen to apply for naturalization on behalf of a child born and
residing outside the United States, whose citizen parent has died.
Immigrant Sponsorship. The Family Sponsor Immigration Act of 2002 (P.L.
107-150) amends INA affidavit of support provisions to address cases in which a citizen
or LPR has petitioned for permanent resident status for an alien resident and the petitioner
has died before the alien has been granted this status. P.L. 107-150 provides that in such
cases, where the Attorney General determines for humanitarian reasons that revocation
of the petition would be inappropriate, a close family member other than the original
petitioner can sign the necessary affidavit of support. (See CRS Report RL31114,
Noncitizen Eligibility for Major Federal Public Assistance Programs: Policies and
S Visa for Criminal and Terrorist Informants. P.L. 107-45 amends the INA
to make permanent §101(a)(15)(S), the provision that allows aliens with critical
information on criminal or terrorist organizations to come into the United States in order
to provide that information to law enforcement officials. Under this law, aliens who
provide critical information may adjust to LPR status. The numerical limits on this
category are 200 per year for criminal informants and 50 per year for terrorist informants.
(See CRS Report RS21043, Immigration: S Visas for Criminal and Terrorist
Asylum Program for Certain Middle Eastern Nationals. The Persian Gulf
War POW/MIA Accountability Act of 2002 (P.L. 107-258) establishes a program to grant
asylum to an Iraqi or other Middle Eastern national who delivers into U.S. custody a
living American prisoner of war or person missing in action.
Employment Eligibility Verification Pilot Programs. A section of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) directed the Attorney
General to conduct three pilot programs for employment eligibility confirmation (i.e., to
confirm that new hires are legally eligible to work). Each program was to be in effect for
4 years. The first program to be implemented, known as the “basic pilot program,”
expired in November 2001. The Basic Pilot Extension Act of 2001 (P.L. 107-128)
amends IIRIRA to extend the life of each program from 4 years to 6 years.
Waivers for Nonimmigrant Physicians. Foreign physicians in the United
States on J-1 visas must return to their home country after completing their education or
training unless they are granted a waiver. P.L. 107-273 (§11018) amends the INA to
increase the number of J-1 visa waivers that states can request (under the so-called
“Conrad 20" program) from 20 to 30 per fiscal year until June 1, 2004. (See CRS Report
RL31460, Immigration: Foreign Physicians and the J-1 Visa Waiver Program.)
State Criminal Alien Assistance Program (SCAAP). SCAAP provides
financial assistance to state and local governments to help cover the direct costs
associated with incarcerating unauthorized aliens. P.L. 107-273 (§11014) authorizes the
appropriation of such sums as necessary for the program for FY2003 and FY2004.
Immigrant Investors. P.L. 107-273 (§11031-§11037) makes changes to the
immigrant category for entrepreneurs who invest at least $1 million in a U.S. business that
creates at least 10 jobs (EB-5). These immigrants are initially granted LPR status on a
conditional basis and must subsequently apply to have the condition removed, so they can
become full-fledged LPRs. Several hundred EB-5 entrepreneurs in conditional status
were unable to become full-fledged LPRs when the requirements for removing the
conditional basis of their status were changed retroactively in 1998. P.L. 107-273 seeks
to rollback these 1998 changes. It also amends the INA to eliminate the requirement that
the EB-5 entrepreneurs establish a commercial enterprise.
Work Authorization for Certain Nonimmigrant Spouses. P.L. 107-124
amends the INA to provide work authorization for the nonimmigrant spouses of treaty
traders or treaty investors on E visas. P.L. 107-125 similarly amends the INA to provide
work authorization for the nonimmigrant spouses of intracompany transferees on L visas.
P.L. 107-125 further amends the INA to reduce from 1 year to 6 months the period of time
that certain intracompany transferees have to be continuously employed overseas by a
petitioning employer before applying for admission to the United States.
Irish Peace Process Program. P.L. 107-234 extends through FY2006 a cultural
exchange and training program that enables young adults from Ireland to work
temporarily in the United States.
DOJ Authorization Act Provisions. In addition to the provisions on childrelated naturalization, J-1 waivers, SCAAP, and immigrant investors discussed above,
P.L. 107-273 makes other changes to immigration law. Section 11030 extends the
deadline for applying for posthumous citizenship on behalf of individuals who die while
on active-duty service during military hostilities. Section 11030A provides for an
extension of H-1B status (beyond the INA’s 6-year limit) in cases in which 1 year or more
has elapsed since the filing of an application or petition to accord an H-1B worker LPR
status as an employment-based immigrant.
Table 1. Immigration Legislation Enacted in the 107th Congress
Amends INA to make permanent the “S” nonimmigrant category.
Authorizes appropriations to improve security at the northern border;
amends INA to broaden the terrorism grounds for exclusion; authorizes
interagency data sharing; requires the development and certification of a
technology standard to verify the identity of applicants for visas and
admission; expands foreign student tracking system.
Extends “Lautenberg amendment” through FY2002.
Amends INA to provide work authorization for nonimmigrant spouses of
treaty traders and treaty investors.
Amends INA to provide work authorization for nonimmigrant spouses of
Extends pilot programs for employment eligibility verification for 2
Amends INA to allow for alternative sponsor to sign affidavit of support in
certain cases if original sponsor dies.
Expands food stamp eligibility to include all LPR children; LPRs receiving
government disability payments; and all LPRs and other “qualified aliens”
who have resided in the U.S. for at least 5 years.
Authorizes appropriations for additional border-related personnel, personnel
training, and technology and infrastructure improvements; requires
development of interoperable electronic data system; requires
implementation of entry-exit data system; places new requirements on Visa
Waiver Program; establishes electronic means to monitor foreign student
Revises and re-enacts “McCain amendment” for FY2002 and FY2003.
Amends INA to set new rules for determining whether alien beneficiary of
a petition or application is a child.
Extends Irish Peace Process Cultural and Training visa program through
Establishes asylum program for Middle Eastern nationals who deliver into
U.S. custody a living American prisoner of war or person missing in action.
Amends INA to allow citizen to apply for naturalization for child outside
U.S. whose citizen parent has died; increases to 30 the annual number of J-1
waivers states can request for foreign physicians through June 1, 2004;
authorizes appropriations for SCAAP for FY2003 and FY2004; makes
changes to EB-5 immigrant category for alien entrepreneurs; extends
deadline for applying for citizenship for individuals who die on active-duty
service during military hostilities; provides for extension of H1-B status
beyond current 6-year limit in certain cases.
Amends INA to create new F and M student visa sub-categories for
commuter students from Mexico and Canada.
Abolishes INS and transfers its immigration enforcement and service
functions to separate bureaus within a new Department of Homeland
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