Overview of Immigration Issues in the 112th Congress

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Collections This report is part of the following collection of related materials. About Browse this Collection. Employment eligibility verification and the related issue of worksite enforcement are widely viewed as essential components of a strategy to reduce unauthorized immigration.

Employers are further required to participate in a paper-based I-9 employment eligibility verification system in which they examine documents presented by new hires to verify identity and work eligibility, and to complete and retain I-9 verification forms. While all employers must meet the I-9 requirements, they may also elect to participate in the E-Verify electronic employment eligibility verification system.

Several bills introduced in the th Congress would variously make E-Verify permanent, require its use for verification of new hires, and permit or require its use for verification of previously hired workers. Legislative proposals on foreign agricultural workers are discussed in a subsequent section.

Among the bills that would authorize a new electronic verification system is H. The verification requirements with respect to hiring would be phased in by employer size, with the largest employers required to participate six months after the date of enactment and the smallest employers required to participate two years after the date of enactment.

The requirements with respect to recruitment and referral would apply one year after the date of enactment. The bill would also provide for mandatory reverification of workers with limited work authorization. These reverification requirements would be phased in on the same schedule as the hiring requirements. Special provisions would apply to agriculture; the hiring, recruitment and referral, and reverification provisions would not apply to agricultural workers until three years after the date of enactment. As introduced, the bill also provided that seasonal agricultural workers returning to work for a previous employer would not be treated as new hires for verification purposes, but an amendment to strike this language was agreed to at the markup.

Verification of previously hired individuals would be mandatory in some cases such as, federal, state, and local government employees , while employers could verify current employees on a voluntary basis beginning 30 days after enactment. It would also establish new penalties, including for individuals who knowingly provide social security numbers or DHS identification numbers that belong to others and for employers who submit such numbers for verification knowing that they belong to someone other than the subject of the query. Lastly, the bill would direct the Secretary of Homeland Security, in consultation with the Social Security Commissioner and the Director of the National Institute of Standards and Technology, to establish a biometric employment eligibility verification pilot program that would be voluntary for employers.

Whiting , the Supreme Court held that one such measure, the Legal Arizona Workers Act, was not preempted by federal immigration law. Other bills introduced in the th Congress would expressly preempt state and local measures prohibiting employers from verifying new hires or current employees through E-Verify. Certain removable aliens cannot be removed from the United States because they do not have travel documents permitting them to return to their country of origin or because the aliens are more likely than not to be subject to torture if returned to the country of origin.

Supreme Court ruled in Zadvydas v. Davis 45 that such aliens could only be detained following an order of removal for so long as is "reasonably necessary to bring about that alien's removal from the United States," but that the INA "does not permit indefinite detention. The bill would limit habeas corpus reviews 49 of such detention and related actions or decisions to the U. District Court for the District of Columbia. Also, the bill would permit unlimited detention of certain aliens during pending removal proceedings. All foreign nationals seeking visas must undergo admissibility reviews performed by DOS consular officers abroad.

These criteria include health-related grounds, criminal history, security and terrorist concerns, public charge e.

Records of all visa applications are now automated in the CCD, with some records dating back to the mids. Since February , the CCD has stored photographs of all visa applicants in electronic form, and the CCD has stored finger scans since In addition to indicating the outcome of any prior visa application and comments by consular officers, the system links to other security databases to flag problems that may have an impact on the issuance of the visa. As described by DHS, the VSP sends ICE special agents with expertise in immigration law and counterterrorism to foreign consulates, where they perform visa security activities that complement the DOS visa screening process.

One of the major tasks for VSP agents is to screen visa applicants to determine their risk profiles.

In addition to noting that tensions exist between consular officials and VSP agents, GAO was especially concerned about the lack of standard operating procedures for VSP agents across the various posts. Despite the VSP's implementation problems, some observers maintain that DHS should play a larger role in visa security. In their view, DOS retains too much power over visa issuances, and consular officers are too concerned about facilitating tourism and trade to thoroughly scrutinize visa applicants.

From this perspective, greater responsibility should be given to the VSP, which does not have competing priorities of diplomatic relations and reciprocity with foreign governments, and may subject visa applications to greater scrutiny. In addition to these broader concerns about visa security, Congress has also addressed matters of exclusion and inadmissibility. The ban also includes aliens who have committed, ordered, incited, assisted, or otherwise participated in the commission of a violation of human rights in Colombia.

The law states that the denial must be based upon credible evidence and allows the Secretary to grant waivers on a case-by-case basis if deemed necessary to support the peace process or for urgent humanitarian reasons. The per-country limit applies to legal permanent resident LPR admissions under the four family-sponsored admission classes and the five employment-based admissions classes.

To be "oversubscribed" means that more visa petitioners are eligible and approved for the preference category than the number allocated for that year, in that category, from that country. As a result, petitioners and their employers applying under these employment-sponsored categories could expect to wait several years to receive a visa. While support for increasing employment-based immigration may be dampened by current economic conditions, proponents argue it is essential for economic growth.

The bill would not alter the total number of LPRs admitted under the family-based and employment-based preference systems. These changes in H. On November 29, , the House passed H. Rather than change the per-country limits on permanent admissions to address the issue of oversubscribed countries in the employment-based system, as discussed in the preceding section, some policymakers have proposed creating a separate visa category for prospective LPRs with graduate degrees in science, technology, engineering, or mathematics STEM fields.

By pulling these individuals out of the numerically limited employment-based categories, this option would free up visas for the other prospective LPRs waiting in the employment-based queue. In September , H. The legislation garnered yeas and nays, with bipartisan support as well as bipartisan opposition.

The House passed a revised version of H. There are several differences between this version and the one the House considered in September. Perhaps the most significant addition to H. Immediate relatives of LPRs would become eligible for V visas after a one-year wait. The purpose of the diversity immigrant visa lottery is, as the name suggests, to encourage legal immigration from countries other than the major sending countries of current immigrants to the United States.

Current law weights the allocation of immigrant visas heavily toward aliens with close family in the United States and, to a lesser extent, toward aliens who meet particular employment needs.

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To be eligible for a diversity visa, the INA requires that the foreign national must have a high school education or the equivalent, or two years of experience in an occupation that requires at least two years of training or experience. The foreign national or the foreign national's spouse must be a native of one of the countries listed as a foreign state qualified for the diversity visa lottery. Diversity lottery winners, like all other aliens wishing to come to the United States, must undergo reviews performed by DOS consular officers abroad and DHS immigration officers upon entry to the United States.

These reviews are intended to ensure that the aliens are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. The diversity lottery currently makes 50, visas available annually to natives of countries that accounted for fewer than 50, immigrant admissions in total over the preceding five years. The formula for allocating visas is based upon the statutory specifications; visas are divided among six global geographic regions according to the relative populations of the regions.

Some argue that the diversity lottery should be eliminated and its visas used for backlog reduction in other visa categories. Supporters of the diversity visa, however, argue that the diversity visa provides "new seed" immigrants for an immigration system weighted disproportionately toward family-based immigrants from a handful of countries. Critics of the diversity lottery warn that it is vulnerable to fraud and misuse, and potentially an avenue for terrorists, citing the difficulties of performing background checks in many of the countries eligible for the diversity lottery.

Supporters respond that background checks for criminal and national security matters are performed on all prospective immigrants seeking to come to the United States, including those winning diversity visas. The House Committee on the Judiciary has reported H. The H-1C nonimmigrant temporary admission category for nurses was established by a law P.

Facilities have to be approved to employ H-1C nurses. Previously, the law allowed for the issuance of nonimmigrant visas to nurses each year, with the proviso that the number of visas issued annually for employment in smaller states could not exceed 25 and the number issued for employment in larger states could not exceed The law limited an H-1C nurse's stay to three years. It also would amend the law to allow for the issuance of nonimmigrant visas to nurses each year, and to limit an H-1C nurse's initial stay to three years with the opportunity to renew the visa for another three years i.

The bill would provide H-1C nurses with portability by allowing an H-1C nurse to begin employment at another hospital approved to employ aliens in this visa category while the petition filed by the new employer is being adjudicated. Employment at the new facility would end if the petition is denied.

The admission of refugees to the United States is a perennial immigration issue. Refugee admission and resettlement are authorized by the INA. Refugees are processed and admitted to the United States from abroad. Several bills have been introduced in the th Congress that would make various changes to the U. Some of these measures propose to reform the refugee admissions process, such as by authorizing the President to designate groups of aliens of humanitarian concern that, absent countervailing factors, would be considered refugees for purposes of admission and by changing existing INA provisions regarding the admission of refugee spouses and children.

Special legislative provisions facilitate relief for certain refugee groups. The "Lautenberg amendment," first enacted in , required the Attorney General now the Secretary of DHS to designate categories of former Soviet and Indochinese nationals for whom less evidence is needed to prove refugee status, and provided for adjustment to LPR status for certain former Soviet and Indochinese nationals denied refugee status. The Lautenberg amendment was regularly extended through FY It was re-enacted for FY by P.

Two of ICE's main programs designed to identify and remove certain aliens from within the United States are Secure Communities and the g program. When an arrestee appears to be subject to removal, local ICE officials may issue an immigration detainer to request that the arresting jurisdiction hold the person for up to 48 hours and transfer them to ICE custody so that ICE may initiate removal proceedings. ICE views Secure Communities as an efficient way to carry out the agency's mandate to identify aliens who have been convicted of crimes and to make the removal of these criminal aliens an enforcement priority.

The program has generated controversy, however, because some aliens identified and removed through Secure Communities have not been convicted of "serious" crimes or any criminal offense and because of concerns that state and local involvement in enforcing federal immigration law could lead to racial profiling or strain police-community relations. Under the g program, state and local law enforcement agencies may enter into agreements with ICE to allow state and local law enforcement officials to receive ICE training and to perform certain immigration enforcement activities under ICE supervision.

Some g programs "jail screening" programs allow local law enforcement officials to conduct migration screening as persons are being booked into prisons or jails. Other g programs "task force" programs allow them to conduct migration screening during the course of their regular police work outside of the booking process.

Legislation related to Secure Communities and the g program has been introduced in the th Congress. In line with efforts to expand Secure Communities, several bills would deny funding for various Department of Justice programs, including the State Criminal Alien Assistance Program discussed below , to jurisdictions that do not participate fully in Secure Communities. Congress also may address proposed changes to Secure Communities and g funding through the appropriations process.

For example, the Senate-reported S.

In recent years, several states and localities have sought to deter the presence of unauthorized aliens within their jurisdictions through a variety of enforcement measures, with Arizona's S. The Supreme Court recently held in Arizona v. United States that some aspects of S. Given the unsettled state of the law in this area, particularly prior to the Court's recent decision in Arizona , some legislation introduced in the th Congress would purport to recognize that state and local officers have "inherent authority" to enforce federal immigration law, 81 or conversely, would establish that state and local officers may only enforce federal immigration law pursuant to a written agreement authorized under Section g of the INA.

The Obama Administration has observed that ICE does not have the funding or capacity to deport every potentially removable alien identified by DHS, especially with the increased number of such aliens identified through Secure Communities. In March and June , ICE published a pair of updated agency guidance memoranda governing the use of prosecutorial discretion during immigration enforcement to ensure that removal resources go to high-priority cases.

Some Members of Congress object to the Administration's prosecutorial discretion policies and have argued that for the Administration explicitly to identify certain types of cases that may be closed amounts to an "administrative amnesty"; others describe prosecutorial discretion as a critical tool to prevent misallocation of agency resources.

The INA includes provisions to assist foreign national victims of domestic abuse. They afford benefits to abused foreign nationals and allow them to self-petition for LPR status independently of their U. This title created the nonimmigrant U visa for foreign national victims of certain crimes—including domestic abuse—who assist law enforcement. A second VAWA reauthorization in added protections and expanded eligibility for abused aliens.

Program authorizations in VAWA expired in The Senate Judiciary Committee has reported S. The bill would require DHS to conduct additional background checks of U. It would prohibit international marriage brokers from marketing information about foreign nationals under age 18 and would clearly define penalties for doing so.

It also would extend VAWA coverage to derivative children whose self-petitioning parent died during the petition process. In addition, the bill would include "stalking" in the definition of criminal activity covered under the U visa. It would exempt VAWA self-petitioners, U visa petitioners, and battered foreign nationals from being classified as inadmissible for LPR status if their financial circumstances raised concerns about their potentially becoming public charges.

Petition adjudication would be stayed until pending investigations or prosecutions of abusive conduct alleged by the petitioning alien were concluded. Likewise, the bill would require USCIS to consider previous applications for immigration benefits and their outcomes.

Immigration Legislation and Issues in the 112th Congress

The bill would maintain the current annual allocation of U visas at 10, and restrict circumstances under which U visa petitions could be certified by law enforcement. Two sets of concerns for Congress may arise regarding the immigration provisions of the VAWA reauthorization legislation. The first is whether the proposed legislation provides sufficient relief to foreign nationals who are abused by their U.

Advocates for battered immigrants suggest that additional provisions are needed to assist this population obtain legal and economic footing. Others have expressed concern over the extent to which these provisions may expand eligibility and incur costs to U. The second concern centers on alleged immigration fraud perpetrated through VAWA and the extent to which the reported legislation should address this issue. While some suggest that VAWA provides opportunities for dishonest and enterprising immigrants to circumvent U.

It is an international and a domestic crime to engage in trafficking in persons TIP for the purposes of exploitation. TIP involves violations of labor, public health, and human rights standards. The current program authorizations expired at the end of FY Domestically, TVPA and its subsequent reauthorizations 91 created two nonimmigrant visa categories: In addition, both bills would make several changes to the INA related to the custody and care of unaccompanied alien children.

The Senate bill would further specify that children who receive U status and are in the custody of HHS are eligible for programs and services to the same extent as refugees. There is currently one immigrant visa category specifically for foreign investors LPR investors coming to the United States. LPR investors comprise the fifth preference category under the employment-based immigration system in the INA, and this immigrant visa is commonly referred to as the EB-5 visa. Employment-based LPR investor visas are designated for individuals wishing to develop a new commercial enterprise in the United States.

In , a pilot program was authorized under the EB-5 visa category to achieve the economic activity and job creation goals of that category by encouraging investment in economic units known as Regional Centers. The majority of EB-5 immigrant investors come through the pilot program. In addition, there are bills in the th Congress that would amend the requirements for EB-5 visas 98 or create a new, sixth employment-based preference EB-6 for sponsored alien entrepreneurs. Special immigrants comprise the fourth preference category under the employment-based immigration system in the INA.

Ministers of religion and religious workers make up the largest number of special immigrants. Religious work is currently defined as habitual employment in an occupation that is primarily related to a traditional religious function and that is recognized as a religious occupation within the denomination. While the INA provision for the admission of ministers of religion is permanent, the provision admitting religious workers has always had a sunset date. There is interest in Congress in promoting international tourism to the United States.

Section of the act requires the Secretary of State to "implement the necessary steps" e. Under current law, an in-person interview by a consular officer is required for visa applicants age 14 through 79 years, with few exceptions. An interview may be waived if the alien is applying for a new visa within 12 months of the old visa's expiration and certain other conditions are met.

In addition, there have been two hearings related to promoting tourism to the United States. During the hearing, there were discussions of S. Among other provisions, the Jolt Act would allow premium processing for B visas and lower the fees charged in select countries during periods of low demand for B visas. As with other bills introduced in this Congress, S. The bill would also require that the Secretary of State conduct a pilot program for processing B visas using videoconferencing technology to conduct interviews of the applicants, and work with other federal agencies to ensure the security of the videoconferencing transmissions.

Under current law, there is one program that provides for the admission of foreign temporary agricultural workers to the United States: This program allows for the temporary admission of foreign workers to the United States to perform agricultural labor or services of a seasonal or temporary nature, provided that U. An approved H-2A visa petition is generally valid for an initial period of up to one year. An employer can apply to extend an H-2A worker's stay in increments of up to one year, but an alien's total period of stay as an H-2A worker may not exceed three consecutive years.

The Obama Administration issued new final rules on the H-2A program in An employer who wants to import H-2A workers must first apply to DOL for a certification that 1 there are not sufficient U. Prospective H-2A employers must attempt to recruit U. In addition, under the "50 percent rule," H-2A employers are required to hire any qualified U. H-2A employers must pay their H-2A workers and similarly employed U. Unlike the H-2A visa, the H-2C visa would not be limited to agricultural labor of a temporary or seasonal nature and could be used to bring in workers to perform non-seasonal agricultural work.

An H-2C worker's continuous period of stay would be limited to 10 months, and the program would be capped at , annually.

The new program would be administered by USDA and would not be subject to the same labor certification process as the H-2A visa. Instead, prospective H-2C employers would attest in their applications that they had satisfied applicable recruitment, wage, and benefit requirements, which would differ from those under the H-2A visa. With respect to wages, the H-2C visa would not be subject to the adverse effect wage rate; H-2C employers would be required to pay the higher of the prevailing wage rate or the applicable minimum wage rate.

Other bills would establish different new foreign agriculture worker programs or would amend the existing H-2A program. Unauthorized alien students are a subpopulation of the larger unauthorized alien population in the United States. Legislation commonly referred to as the "DREAM Act" whether or not a particular bill carries that name has been introduced in the past several Congresses to provide unauthorized alien students with access to both educational opportunities and immigration status. In the first stage, aliens meeting specified criteria could go through an immigration procedure known as "cancellation of removal" to obtain a conditional legal status.

In the second stage, aliens, after meeting additional requirements, could apply to become full-fledged LPRs. DREAM Act bills have once again been introduced in the th Congress, both as stand-alone measures and as parts of larger bills. This deferred action process, however, would not grant eligible individuals a legal immigration status. Over the past decade or so, concern about illegal immigration has led some legislators to reexamine the long-established tenet of U.

This concept of birthright citizenship is codified in the Citizenship Clause of the Fourteenth Amendment of the U. The war on terror and the case of Yaser Esam Hamdi, a U. In the th Congress, some Members have supported introducing legislation that would revise or reinterpret the Citizenship Clause to address concerns that 1 children born to unauthorized aliens become an avenue to legal status for their parents and siblings when they turn 21 years old, and 2 affluent pregnant foreigners come to the United States on tourist visas to give birth to their children and thus provide them with U.

Furthermore, some state legislators have voiced support for state legislation that would define state citizenship as excluding persons born to undocumented aliens and for a state compact under which states would issue a different type of birth certificate to such persons. State legislators from Arizona and 13 other states unveiled model legislation in January , intending to set the stage for a U. Supreme Court review of the Citizenship Clause. Title VII of P.

Among other provisions, P. It aimed, in particular, to provide federal regulation and oversight of the admission of foreign workers to the CNMI, including by establishing a CNMI-only transitional worker visa.

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Aliens who were not eligible for the transitional foreign worker visas were able to remain in the CNMI on entry permits issued under the former territorial immigration laws until the earlier of the original permit expiration date or November 28, In the th Congress, H. For example, some have U.

Other long-term foreign residents were granted permanent resident status in the CNMI under former territorial immigration laws, but this status will no longer be valid under federal immigration law after November 28, Parole would be granted on a case-by-case, discretionary basis and would permit recipients to stay lawfully in the CNMI.

If parole is denied, unlawful presence would accrue after the expiration of the CNMI permit on November 27, A grant of parole based on an application filed after January 31, , would be valid from the date of grant, so unlawful presence would accrue after the expiration of the CNMI permit on November 27, , until the date for the grant of parole.

The maximum grant would be until December 31, In the meantime, discussions about H. The th Congress is taking renewed interest in foreign temporary workers engaged in professional occupations. As discussed above, one issue focuses on whether Congress should revise the immigration law to expand temporary visas for professional specialty occupations, particularly for graduates with degrees in STEM fields.

Another issue is whether other temporary visa categories, such as those designated for foreign study, cultural exchange, and intracompany transfers, are being misused by employers unable to obtain numerically limited professional workers visas. A corollary to these two issues is whether the wages and working conditions of U. Since , Congress has enacted a range of measures to facilitate naturalization and maintenance of LPR status for military service members and their families, particularly when such persons are posted abroad.

In the th Congress, several bills have been introduced to address additional issues that have resulted from military service.

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