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Tuesday, July 27, 2010

U.S. Citizenship and Immigration Services’ Immigration Fees and Adjudication Costs: Proposed Adjustments and Historical Context

William A. Kandel
Analyst in Immigration Policy

Chad C. Haddal
Specialist in Immigration Policy

The U.S. Citizenship and Immigration Service (USCIS) in the Department of Homeland Security (DHS) has proposed a fee schedule for immigration services that increases fees by a weighted average of 10%. Under the proposed schedule issued June 11, 2010, most fees would increase, several would decrease, and the naturalization fee would remain unchanged. USCIS has also proposed three new fees for services the agency currently performs. The proposed fee schedule results from an FY2009 USCIS fee review. It represents the agency's attempt to (1) more accurately align processing revenues with costs, (2) redistribute costs of some processing activities for which no fees can be charged, (3) impose new fees to capture costs for currently unreimbursed activities, and (4) resolve anticipated budget shortfalls.

Charging fees for federal government services has long been practiced. Such fees have usually been charged for service cost recovery only to individuals who use the service or benefit—so called user fees. As immigration services grow in complexity, questions arise over what service users should pay. The user fees debate has produced two positions: (1) an agency should either recover all of its costs through user fees, and (2) an agency should only recover costs directly associated with providing services. USCIS last increased its fees for immigration and naturalization services in July 2007 by an average of 88%. At that time, cost estimates by USCIS and the Government Accountability Office found that the agency's pre-2007 fee structure was insufficient to maintain proper service levels and avoid backlogs.

How USCIS should be funded remains a divisive issue. Fee increase proponents, who favor greater agency cost recovery, contend that U.S. immigration services are a "good deal" by world standards. They also feel that the cost of processing immigrant applications should not be borne by taxpayers, particularly during an economic downturn. Fee increase opponents, who favor more focused cost recovery, are concerned about detrimental impacts of fee increases on lower-income families, and further believe that the push to make the agency entirely fee-reliant in past years has increased the application backlog and promoted backlog definition changes. Concerns of fee increase proponents and opponents have acquired heightened significance with proposed comprehensive immigration reform.

USCIS obtains over 80% of its funding from fee revenue. After consistently declining from FY2003 to FY2008, the portion of USCIS' budget from appropriations increased consistently for fiscal years 2009, 2010, and 2011. In its FY2011 budget, the agency has requested additional funds to defray the cost of military naturalizations and refugee and asylee applications, thereby shifting this cost from immigration service applicants to U.S. taxpayers. Although the agency has been appropriated several hundred million dollars in the past decade, these appropriations have largely been directed toward specific projects, such as the backlog reduction initiative. Consequently, USCIS fee revenue must cover overhead and adjudication costs for the agency to operate efficiently.

Issues for Congress to consider might include how USCIS fees have been computed and justified; whether anticipated revenue from revised fees will cover agency costs; how fiscal shortfalls might be funded; and what impact higher fees might have on the applicant pool. This report will be updated this year after public comments to the proposed fee schedule are published.

Date of Report: June 16, 2010
Number of Pages: 41
Order Number: RL30404
Price: $29.95

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Friday, July 23, 2010

State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070

Michael John Garcia
Legislative Attorney

Kate M. Manuel
Legislative Attorney

Larry M. Eig
Specialist in American Public Law

On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor.

The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things, that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162.

Whenever states enact laws or adopt policies to affect the entry or stay of noncitizens, including aliens present in the United States without legal authorization, questions can arise whether Congress has preempted their implementation. For instance, Congress may pass a law to preempt state law expressly. Further, especially in areas of strong federal interest, as evidenced by broad congressional regulation and direct federal enforcement, state law may be found to be preempted implicitly. Analyzing implicit preemption issues can often be difficult in the abstract. Prior to actual implementation, it might be hard to assess whether state law impermissibly frustrates federal regulation. Nevertheless, authority under S.B. 1070, as originally adopted, for law enforcement personnel to investigate the immigration status of any individual with whom they have "lawful contact," upon reasonable suspicion of unlawful presence, could plausibly have been interpreted to call for an unprecedented level of state immigration enforcement as part of routine policing. H.B. 2162, however, has limited this investigative authority.

Provisions in S.B. 1070 criminalizing certain immigration-related conduct also may be subject to preemption challenges. The legal vulnerability of these provisions may depend on their relationship to traditional state police powers and potential frustration of uniform national immigration policies, among other factors. In addition to preemption issues, S.B. 1070 arguably might raise other constitutional considerations, including issues associated with racial profiling. Assessing these potential legal issues may be difficult before there is evidence of how S.B. 1070, as modified, is implemented and applied in practice.

As amended, S.B. 1070 is scheduled to go into effect on July 29, 2010. Several lawsuits have been filed challenging the constitutionality of S.B. 1070 and seeking to preliminarily enjoin its enforcement. The U.S. Department of Justice (DOJ) is among those challenging S.B. 1070, alleging that its provisions, both separately and in concert, are preempted because they exceed states' roles with respect to aliens, interfere with the federal government's enforcement of immigration laws, and undermine U.S. foreign policy objectives.

Date of Report: July 12, 2010
Number of Pages: 27
Order Number: R41221
Price: $29.95

The report is available via eMail as a pdf file or in paper form.

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Monday, July 12, 2010

Immigration-Related Worksite Enforcement: Performance Measures

Andorra Bruno
Specialist in Immigration Policy

In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on immigration-related worksite enforcement. In the words of DHS, the updated guidance "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers." Under the guidelines, DHS "will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment." According to 2008 estimates, there are some 8.3 million unauthorized workers in the U.S. civilian labor force.

DHS's U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration-related worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section 274A of the Immigration and Nationality Act (INA). The INA §274A provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today, ICE's worksite enforcement program is focused primarily on cases that involve critical infrastructure facilities and cases involving employers who commit "egregious violations" of criminal statutes and engage in worker exploitation.

Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to civil monetary penalties and/or criminal penalties. Criminal investigations may result in defendants being charged with crimes beyond unlawful employment and being subject to the relevant penalties for those violations.

Various measures are available to examine the performance of ICE's worksite enforcement program. They include Final Orders for civil monetary penalties, administrative fines, administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines and forfeitures. In addition to examining annual changes and trends in the various performance measure data, these data can be considered in relation to the estimated size of the unauthorized workforce or the potential number of employers employing these workers. When considered in this context, ICE's worksite enforcement program can seem quite limited.

Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on a group of low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers.

Related background information can be found in CRS Report RL33973, Unauthorized Employment in the United States: Issues, Options, and Legislation.

Date of Report: June 24, 2010
Number of Pages: 15
Order Number: R40002
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
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